EXHIBIT A
GREENBRIER PARTNERS, LTD.
LIMITED PARTNERSHIP AGREEMENT
Dated as of October 16, 1985
(Including revisions dated January 1, 1988; March 29, 1989;
January 1, 1991; and October 15, 1994.)
The undersigned (herein called the "Partners") hereby
agree to form, and hereby form as of the day and year first
above written, a limited partnership (herein called the
"Partnership"), pursuant to the Texas Uniform Limited
Partnership Act, which shall be governed by and operated
pursuant to the terms and provisions of this Limited
Partnership Agreement (herein called the "Agreement"). The
Partners hereby agree that the Partnership shall adopt the
Texas Revised Limited Partnership Act as its governing law
as of the filing of a certificate of amendment with the
Secretary of State of the State of Texas making such
election.
ARTICLE 1
GENERAL PROVISIONS
SECTION 1.01. PARTNERSHIP NAME. The name of the
Partnership, and the name under which it shall do business,
shall be GREENBRIER PARTNERS, LTD.
SECTION 1.02. FISCAL YEAR. The fiscal year of the
Partnership (herein called the "fiscal year") shall end on
December 31.
SECTION 1.03. LIABILITY OF PARTNERS. The names of all
of the Partners and the amounts of their respective
contributions to the Partnership (herein called "Capital
Contributions") are set forth in a schedule entitled
"Schedule of Capital Contributions" (herein called the
"Schedule") which is attached hereto and made a part of this
Agreement.
The Partner who is designated in Part I of the Schedule
as the General Partner (herein called the "General Partner")
shall have unlimited liability for the repayment and
discharge of all debts and obligations of the Partnership
attributable to any fiscal year during which he is or was
the General Partner of the Partnership.
Those Partners who are designated in Part II of the
Schedule as Limited Partners (herein called the "Limited
Partners") and former Limited Partners shall be liable for
the repayment and discharge of all debts and obligations of
the Partnership attributable to any fiscal year during which
they are or were Limited Partners of the Partnership only to
the extent of their respective interests in the Partnership
in the fiscal year to which any such debts and obligations
are attributable and shall not otherwise have any liability
in respect of the debts and obligations of the Partnership.
The Partners and all former Partners shall share all
losses, liabilities or expenses suffered or incurred by
virtue of the operation of the preceding paragraphs of this
Section 1.03 in the proportions of their respective
Partnership Percentages for the fiscal year to which any
debts or obligations of the Partnership are attributable up
to the limit of their respective interests in the
Partnership for such fiscal year.
As used in this Section 1.03, the terms "interests in
the Partnership" and "interest in the Partnership" shall
mean with respect to any fiscal year and with respect to
each Partner (or former Partner) the Liquidating Share that
such Partner (or former Partner) would have received (or in
fact did receive) pursuant to the terms and provisions of
Section 8.03 on withdrawal from the Partnership as of the
end of such fiscal year.
Notwithstanding any other provision in this Agreement,
in no event shall any Limited Partner (or former Limited
Partner) be obligated to make any additional contribution
whatsoever to the Partnership, or have any liability for the
repayment and discharge of the debts and obligations of the
Partnership (apart from his interest in the Partnership)
except that a Limited Partner (or former Limited Partner)
may be required for purposes of meeting his obligations
under this Section 1.03 to make additional contributions up
to, but in no event in excess of, the aggregate amount of
the withdrawals actually received by him from the
Partnership during or after the fiscal year to which any
debt or obligation is attributable.
As used in this Agreement, the terms "former Limited
Partner" and "former Partner" refer to such persons as
hereafter from time to time cease to be Limited Partners and
Partners respectively pursuant to the terms and provisions
of this Agreement.
SECTION 1.04. PURPOSES OF PARTNERSHIP. The
Partnership is organized for the following objects and
purposes:
(a) to invest and trade, on margin or
otherwise, in capital stock, preorganization
certificates and subscriptions, warrants, bonds,
notes, debentures, whether subordinated,
convertible or otherwise, trust receipts and other
securities of whatever kind or nature of any
person, corporation, government or entity
whatsoever, whether readily marketable or not, and
in rights and options relating thereto, including
put and call options written by the Partnership or
by others (all such items being called herein a
"Security" or "Securities"), to sell Securities
short and cover such sales, to invest in
currencies and financial futures, including
financial futures relating to certificates of
deposit, commercial paper, mortgages, U. S.
Treasury Bills, U. S. Treasury Bonds and stock
indexes, and to lend funds or properties of the
Partnership, either with or without security;
(b) to enter into, make and perform, all
contracts and other undertakings, engage in all
activities and transactions and to incur expenses
on behalf of the Partnership as the General
Partner may deem necessary or advisable to the
carrying out of the foregoing objects and
purposes, including without limitation:
(i) to purchase, hold, sell,
exchange, transfer, mortgage, pledge and
otherwise acquire and dispose of and
exercise all rights, powers, privileges
and other incidents of ownership, or
possession with respect to Securities;
(ii) to acquire a long
position or a short position with
respect to any Security and to make
purchases or sales increasing,
decreasing or liquidating such position
or changing from a long position to a
short position or from a short position
to a long position, without any
limitation as to the frequency of the
fluctuation in such positions or as to
the frequency of the changes in the
nature of such position;
(iii) to purchase
Securities and hold them for investment;
(iv) to borrow or raise
moneys, and, from time to time without
limitation as to amount or manner and
time of repayment, to issue, accept,
endorse, and execute promissory notes,
drafts, bills or exchange, warrants,
bonds, debentures and other negotiable
or non-negotiable instruments and
evidences of indebtedness, and to secure
the payment of such or other obligations
of the Partnership by mortgage upon, or
hypothecation or pledge of, all or part
of the property of the Partnership,
whether at the time owned or thereafter
acquired;
(v) to maintain for the
conduct of Partnership affairs one or
more offices and in connection therewith
rent or acquire office space, engage
personnel, whether part-time or full
time, and do such other acts and incur
such expenses as the General Partner may
deem necessary or advisable in
connection with the maintenance and
administration of such office or
offices;
(vi) to engage independent
attorneys, accountants or such other
persons as the General Partner may deem
necessary or advisable.
SECTION 1.05. PROHIBITED PURPOSE OF PARTNERSHIP. The
Partnership shall not:
(a) not applicable;
(b) invest or trade in, purchase or sell, sell
short or
cover any commodity or commodities contract;
provided, however, that the prohibition in this
Section 1.05(b) shall not apply to investments in
currencies and financial futures, including
financial futures relating to certificates of
deposit, commercial paper, mortgages, U. S.
Treasury Bills, U. S. Treasury Bonds and stock
indexes; or
(c) engage in brokerage transactions in
which the General Partner or any of his affiliated
companies will receive brokerage fees or
commissions.
SECTION 1.06. ASSIGNABILITY OF INTEREST. A Partner
may not assign his interest in whole or in part to any
person except by last will and testament or by operation of
law, and any such attempted assignment shall be void;
provided, however, that nothing contained herein shall limit
the rights of any Partner to take the following actions:
(a) A Partner may mortgage, hypothecate or pledge his
interest with the prior written consent of the General
Partner and any such mortgage, hypothecation or pledge
which is in writing and signed by the Partner with his
signature guaranteed by a bank or a member firm of the
New York Exchange and accompanied by such written
consent of the General Partner shall be conclusive
proof to any lender of the authority of such Partner to
take such action. Any purchaser at a foreclosure sale
shall have all the rights, subject to all obligations
that the previous owner of said interest in the
Partnership may have had.
(b) A Limited Partner may, at his own expense and
with the prior written consent of the General
Partner, assign his Partnership interest:
(i) to other Limited
Partners;
(ii) to entities controlled by
said Limited Partner;
(iii) to a trustee for the
benefit of said Limited Partner and/or
said Limited Partner's immediate family,
provided, however, that the Limited
Partner, a member of his immediate
family or such other person or entity as
may be acceptable to the General Partner
shall be the trustee of such trust; or
(iv) to a member of said
Limited Partner's immediate family.
If the interest of a Limited Partner is assigned
pursuant to this subparagraph (b), the assignee
shall become a Substituted Limited Partner in his
place only with the consent of the General Partner
and no other Limited Partner need consent to such
substitution in order to render it effective;
provided, however, that said assignee shall:
(i) Execute and swear to such
instruments as the General Partner may
deem necessary or advisable to effect
the admission of such person as a
Substituted Limited Partner;
(ii) Assume all obligations of
the Limited Partner, as such, for whom
he is being substituted; and
(iii) Pay for all expenses
incurred by the Partnership in
connection with such person's becoming a
Substituted Limited Partner.
All other steps shall be taken which, in the
opinion of the General Partner, are reasonably
necessary to admit such person as a Substituted
Limited Partner, including the filing for record
with the Secretary of State of an Amended
Certificate of Limited Partnership, and such
person shall thereupon become a Substituted
Limited Partner and consistent therewith shall
enjoy all of the rights and duties incident to the
interest with respect to which the substitution
has occurred; provided, however, that neither the
assignment of an interest of a Limited Partner,
nor the admission for an assignee as a Substituted
Limited Partner, shall relieve the assignor of any
duties or obligations as such theretofore incurred
except to the extent provided in a writing signed
by the parties to said assignment and the General
Partner.
(c) Notwithstanding the foregoing to the
contrary, the General Partner will not permit any
assignment to any party, the assignment to which
would result in the General Partner being or
becoming a "plan fiduciary" within the meaning of
the Employee Retirement Income Security Act of
1974 ("ERISA").
SECTION 1.07. ELECTION OF TEXAS REVISED LIMITED
PARTNERSHIP ACT. The General Partner shall take all actions
required to reconstitute the Partnership as a limited
partnership under the Texas Revised Limited Partnership Act,
and shall have power to make any elections available to the
Partnership or the General Partner thereunder.
SECTION 1.08. INVESTMENTS IN CERTAIN ENTITIES. Each
Partner agrees to notify the General Partner of such
Partner's being or becoming a director, officer, or ten
percent (or more) shareholder of any publicly held business
or economic entity and, upon written request of any such
Partner, the Partnership will not invest or trade in,
purchase or sell, sell short or cover, or sell "against the
box" any Securities issued by any such publicly held
business or economic entity of which the Partner is a
director, officer, or ten percent (or more) shareholder.
ARTICLE II
MANAGEMENT OF PARTNERSHIP
SECTION 2.01. MANAGEMENT GENERALLY. The management of
the Partnership shall be vested exclusively in the General
Partner. The Limited Partners shall have no part in the
management of the Partnership, and shall have no authority
or right to act on behalf of the Partnership in connection
with any matter except as may be provided for in Section
8.01 hereof.
SECTION 2.02. AUTHORITY OF PARTNERS. The General
Partner shall have the power by himself on behalf and in the
name of the Partnership to carry out any and all of the
objects and purposes of the Partnership set forth in
subparagraphs (a) and (b) of Section 1.04, and to perform
all acts and enter into and perform all contracts and other
undertakings which he may deem necessary or advisable or
incidental thereto, including without limitation, the power
to:
(a) conduct accounts with brokers, including
margin accounts and accounts holding securities in
street name;
(b) open, maintain, and close bank accounts
and draw checks or other orders for the payment of
monies;
(c) lend, with or without security, any of
the funds or properties of the Partnership and
from time to time without limit as to amount,
borrow or raise funds and secure the payment of
obligations of the Partnership by mortgage upon,
or pledge or hypothecation of, all or any part of
the property of the Partnership;
(d) do any and all acts on behalf of the
Partnership, and exercise all rights of the
Partnership, with respect to its interest in any
person, firm, corporation or other entity,
including, without limitation the voting of
securities, the negotiation and payment of
commissions in amounts in excess of any so-called
minimum commission, participation in arrangements
with creditors, the institution of suits and
administrative proceedings and other like or
similar matters;
(e) act and incur expenses for and on behalf
of the Partnership in all matters incidental to
the foregoing;
(f) to make any tax elections allowable
under the Code on behalf of the Partnership; and
(g) to appoint any person, including the
General Partner, as registered agent of the
Partnership and to determine the registered office
and principal office of the Partnership.
SECTION 2.03. RELIANCE BY THIRD PARTIES. Persons
dealing with the Partnership are entitled to rely
conclusively upon the certificate of the General Partner to
the effect that he is the General Partner and upon the power
and authority of the General Partner as herein set forth.
SECTION 2.04. ACTIVITY OF GENERAL PARTNER. The
General Partner hereby agrees to use his best efforts in
connection with the purposes and objects of the Partnership
and shall diligently and faithfully devote to such purposes
and objects his time and activity during normal business
days and hours as he in his discretion shall deem necessary
for the management of the affairs of the Partnership,
provided however, that nothing contained in this Section
2.04 shall preclude the General Partner from acting,
consistent, however, with the foregoing and with Section
1.05 (a), as a director, officer or employee of any
corporation, a trustee of any trust, or an executor or
administrative official of any other business entity; or
from participating in profits derived from the investments
of any such corporation, trust estate, partnership or other
business entity or person; or from engaging in any other
business or having other business interests.
SECTION 2.05. EXCULPATION. The General Partner shall
not be liable to any other Partner or the Partnership for
honest mistakes of judgement or for losses due to such
mistakes or to the negligence, dishonesty or bad faith of
any employee, broker or other agent of the Partnership,
provided that such employee, broker or other agent was
selected, engaged or retained by the General Partner with
reasonable care. The General Partner may consult with
counsel and/or accountants in respect of Partnership affairs
and shall be fully protected and justified in any action or
inaction which is taken in accordance with the advise or
opinion of such counsel or accountants, provided that they
shall have been selected with reasonable care.
SECTION 2.06. INDEMNIFICATION OF GENERAL PARTNER. The
Partnership shall indemnify and hold harmless the General
Partner and/or his legal representatives, from and against
any loss or expenses suffered or sustained by him, by reason
of the fact that he is or was a General Partner of the
Partnership, including without limitation any judgement or
settlement made by the General Partner upon advice of
counsel or with the consent of a majority in interest of the
Limited Partners, reasonable attorneys' fees and other costs
or expenses incurred in connection with the defense of any
actual or threatened action or proceeding, provided such
loss or expense resulted from an honest mistake of judgement
on the part of the General Partner, or from action or
inaction taken in good faith for a purpose which the General
Partner reasonably believed to be in the best interest of
the Partnership.
ARTICLE III
DEFINITIONS
SECTION 3.01. DEFINITIONS. Unless the context
requires otherwise, the following terms have the meanings
specified in this paragraph:
Net Profits: The net profit of the Partnership for
each fiscal year, consisting of Ordinary Taxable Income or
Loss for the fiscal year, Unrecognized Capital Gain or Loss
with respect to a Security for the fiscal year and the
Recognized Capital Gain or Losses with respect to the
disposition of a Security for the fiscal year.
Net Losses: The net loss of the Partnership for each
fiscal year, consisting of Ordinary Taxable Income or Loss
for the fiscal year, Unrecognized Capital Gain or Loss with
respect to a Security for the fiscal year and the Recognized
Capital Gain or Losses with respect to the disposition of a
Security for the fiscal year.
Ordinary Taxable Income or Loss: The net taxable
income or loss of the Partnership for federal income tax
purposes for each fiscal year from whatever source derived
(including those items required to be separately stated
under Section 702 (a)(1) through (7) of the Code),
excluding, however, taxable gain or loss arising from the
purchase or sale of a Security.
Partnership Percentage: Each Partner's Partnership
Percentage shall initially be determined by dividing such
Partner's capital contribution by the aggregate capital
contributions of each of the Partners. As of the first day
of each fiscal year the Partnership Percentages shall be
redetermined as follows:
(a) If an existing Partner makes an
additional capital contribution or an additional
Partner is admitted into the Partnership as of the
last day of the previous fiscal year, the
Partnership Percentage of the existing Partner
shall be increased by, and the Partnership
Percentage of the newly admitted Partner shall be,
the fraction obtained by dividing such capital
contribution by the net fair market value of the
assets of the Partnership as determined pursuant
to Section 5.04 hereof, including the amounts
contributed by the new or existing Partner, and
the Partnership Percentages of all other Partners
shall be decreased accordingly in proportion to
their Partnership Percentages (immediately prior
to such adjustment);
(b) If a Partner makes a withdrawal pursuant
to Section 6.02 or total withdrawal pursuant to
Section 8.02 or 8.04 as of the last day of the
previous fiscal year, the Partnership Percentage
of a Partner making a partial withdrawal shall be
the fraction obtained by dividing (i) such
Partner's Partnership Percentage (immediately
prior to such withdrawal) times the net fair
market value of Partnership assets prior to the
withdrawal as determined pursuant to Section 5.04
hereof, less the amount distributed to such
Partner, by (ii) the net fair market value of
Partnership assets after the withdrawal as
determined pursuant to Section 5.04 hereof, and
the Partnership Percentages of the other Partners
shall be increased in accordance with their
Partnership Percentages (immediately prior to such
withdrawal).
The sum of the Partnership Percentages shall equal 100
percent (100%). The Partnership Percentages shall be set
forth in a schedule which shall be filed with the records of
the Partnership within 90 days of the beginning of each
fiscal year. The General Partner shall initially commit to
the Partnership an amount equal to 1% of the total
Partnership Capital and shall contribute an amount upon the
admission of additional Limited Partners which will cause
the General Partner's Partnership Percentage to equal at
least 1%.
Recognized Capital Gains or Losses: With respect to
any Security disposed of by the Partnership for any fiscal
year, the difference between (i) the amount realized from
such disposition and (ii) the value of the Security as of
the first day of the fiscal year on which such disposition
occurs, or the adjusted basis of such Security in the case
of Securities acquired during the fiscal year of
disposition.
Unrecognized Capital Gain or Loss: With respect to
each Security held by the Partnership on the last day of the
fiscal year, the difference between the fair market value on
such date and the fair market value on the last day of the
preceding fiscal year.
ARTICLE IV
ALLOCATION OF NET PROFITS AND NET LOSSES
SECTION 4.01. ALLOCATION OF NET PROFITS AND NET
LOSSES. Except as otherwise provided in this Agreement, Net
Profits or Net Losses for each fiscal year shall be
allocated as follows:
(a) Each Limited Partner shall be allocated
a share of the Net Profits equal to 80% of his
Partnership Percentage or shall be allocated a
share of Net Losses equal to 100% of his
Partnership Percentage.
(b) The General Partner shall be allocated a
share of the Net Profits or Net Losses equal to
100% of his Partnership Percentage.
(c) The remaining Net Profits shall be
allocated to the General Partner.
(d) Notwithstanding the foregoing to the
contrary, Net Profits in the fiscal year
immediately following a year in which the
Partnership experiences a Net Loss shall be
allocated to the Partners in accordance with their
Partnership Percentages up to the amount of such
Net Loss previously allocated, and thereafter in
accordance with Sections 4.01(a) through 4.01(c).
SECTION 4.02. ALLOCATION FOR FEDERAL INCOME TAX
PURPOSES. Income or loss of the Partnership for federal
income tax purposes shall be allocated in each fiscal year
in the following manner:
(a) Ordinary Taxable Income or Loss of the
Partnership shall be allocated among the General
Partner and the Limited Partners, as a class, in
the same proportion as they are allocated Net
Profit or Net Loss in such fiscal year pursuant to
Section 4.01. Among the Limited Partners, as a
class, Ordinary Taxable Income or Loss shall be
allocated pro rata based on the ratio that the
Partnership Percentage of each Limited Partner
bears to the aggregate Partnership Percentages of
the Limited Partners.
(b) Gains and losses from the disposition of
securities for any fiscal year shall first be
allocated to each Partner in a manner which takes
into account the difference between the adjusted
tax basis of property disposed of by the
Partnership and the book value of such property at
the time such Partner acquired its interest in the
Partnership, as required pursuant to Treas. Reg.
1.704-1(b)(4)(i). Any remaining portion of such
gain or loss shall be allocated in accordance with
Section 4.01.
SECTION 4.03. SPECIAL ALLOCATIONS. Notwithstanding
any provision of this Agreement to the contrary, no Partner
shall be allocated any item of loss or deduction which would
cause or increase a deficit balance in the Capital Account
of such Partner unless such allocation has substantial
economic effect within the meaning of Section 704(b) of the
Code. Any item of loss or deduction not allocated to a
Partner due to the application of the preceding sentence
shall be allocated to those Partners entitled to receive
allocations of loss or deduction hereunder pro rata in
proportion to their relative Partnership Percentages.
SECTION 4.04. FEDERAL INCOME TAX ALLOCATIONS.
Anything contained herein to the contrary notwithstanding,
there shall first be allocated to each Limited Partner with
a deficit capital account in excess of any obligation by the
Limited Partner to restore such deficit balance, resulting
from any adjustment, allocation or distribution described in
Treasury regulations 1.704-1(b)(2)(ii)(d)(4), (5), or (6),
such Limited Partner's allocable share of all Partnership
gross income up to the amount by which such deficit capital
account balance exceeds such Limited Partner's obligation to
restore such deficit balance.
ARTICLE V
CAPITAL ACCOUNTS OF PARTNERS
SECTION 5.01. CAPITAL CONTRIBUTIONS. Each Partner has
paid or conveyed by way of contribution to the Partnership
cash equal to the amount set forth opposite such Partner's
name in Parts I and II of the Schedule. Additional
contributions in cash may be made by Partners only in
accordance with the provisions of Section 5.02.
SECTION 5.02. CAPITAL ACCOUNTS. There shall be
established for each Partner on the books of the Partnership
a Capital Account which for the fiscal year during which
such Partner was admitted shall be an amount equal to his
Capital Contribution subject to Section 5.01 hereof. The
General Partner may also own an interest in the Partnership
as a Limited Partner, both individually and through his
affiliated corporation, Xxxx & Company, Inc., and in such
case the General Partner shall have two Capital Accounts,
one for his General Partner's interest and one for his
individual Limited Partner's interest. The Capital Account
for the Limited Partnership interest of Xxxx & Company, Inc.
shall be kept in the same manner as all other Limited
Partner Capital Accounts.
Additional contributions of cash may be made by any
Partner only as of the first day of any fiscal year of the
Partnership and must be received by the Partnership no later
than the first day of such fiscal year; provided, the
Partnership may require not less than 30 days' notice
thereof specifying the amount and nature of the additional
contributions. The General Partner shall have the right to
accept or decline to accept any such additional contribution
whether or not such notice is given.
SECTION 5.03. ADJUSTMENTS TO CAPITAL ACCOUNTS. Each
Partner shall have a capital account (the "Capital Account")
which shall be increased and decreased in accordance with
the Treasury Regulations under Section 704(b) of the
Internal Revenue Code of 1986.
SECTION 5.04. VALUE OF SECURITIES. For purposes of
determining the value of securities, securities which are
listed on a national securities exchange shall be valued at
their closing sales prices on the trading day immediately
prior to or on the date of determination, or if no sales
occurred on such trading day, at the mean between the "bid"
and "asked" prices on such trading day. Securities which
are not listed shall be valued at their last closing "bid"
prices if held "long" by the Partnership and their last
closing "asked" prices if held "short" by the Partnership.
Securities which are in the form of put or call options
shall be valued at their fair market value. All other
Securities shall be assigned such value as the General
Partner may determine and such value, as well as all other
values assigned to Securities by the General Partner
pursuant to this paragraph of this Section 5.04 shall be
final and conclusive as to all of the Partners.
SECTION 5.05. DETERMINATION BY GENERAL PARTNER OF
CERTAIN MATTERS. All matters concerning the valuation of
Securities, the allocation of profits, gains and losses
among the Partners including their taxable status, any
elections permitted or required pursuant to the Internal
Revenue Code, including the Section 754 election, and
accounting procedures not specifically and expressly
provided for by the terms of this Agreement, shall be
determined by the General Partner on a fair and equitable
basis (subject where appropriate, to generally accepted
accounting principles, except in the treatment of
organizational expenses, as recommended by the accountant
for the Partnership) whose determination shall be final and
conclusive as to all of the Partners.
ARTICLE VI
WITHDRAWAL OF CAPITAL
SECTION 6.01. LOANS AND WITHDRAWALS IN GENERAL. No
Partner shall be entitled to withdraw any amount from his
Capital Account other than upon his withdrawal from the
Partnership, death or insanity, except as provided in
Section 6.02. The Partnership may, but shall not be
required to make loans to any Limited Partner, which do not
mature beyond the end of the fiscal year in which they are
made and which bear interest at a rate determined by the
General Partner, provided, however, that the aggregate loans
outstanding to any Limited Partner in any fiscal year shall
not exceed forty percent (40%) of the Capital Account of
such Partner.
SECTION 6.02. WITHDRAWALS. Each Partner shall have
the right at the end of any fiscal year commencing with the
first fiscal year of the Partnership to withdraw any amount
out of his Capital Account upon 30 days' notice prior to the
end of such year stating the amount to be withdrawn;
provided, however, that the Capital Account of the
requesting Partner will not by such withdrawal (including
any amounts deducted pursuant to the second paragraph of
this Section 6.02) be reduced to less than zero.
Any withdrawal pursuant to Section 6.02 shall be
subject to a charge not in excess of 2% of the amount
thereof as the General Partner may determine to cover costs
of selling Securities in order to effect payment of such
withdrawal, and such expense shall be specially allocated to
the Capital Account of such withdrawing Partner.
SECTION 6.03. LIMITATIONS ON WITHDRAWAL. The right of
any Partner to withdraw any amount from his Capital Account
pursuant to the provisions of this Article VI is subject to
the provision by the General Partner for all Partnership
liabilities in accordance with Section 17 of the Texas
Uniform Limited Partnership Act and for reserves for
contingencies.
ARTICLE VII
ADMISSION OF NEW PARTNERS
SECTION 7.01. NEW PARTNERS. The General Partner may
at the beginning of any fiscal year admit one or more new
Partners subject only to the conditions that:
(a) each such new Partner shall execute
anappropriate supplement to this Agreement
pursuant to which he agree to be bound by the term
and provisions hereof:
(b) each such new Partner, if he shall be
admitted as a General Partner, shall have been
approved in writing by a majority in interest of
the Limited Partners. Admission of a new Partner
shall not be a cause for dissolution of the
Partnership.
ARTICLE VIII
WITHDRAWAL, DEATH OR INSANITY OF PARTNERS
SECTION 8.01. WITHDRAWAL, DEATH, ETC. OF GENERAL
PARTNER. The General Partner may, upon 30 days' prior
notice, withdraw from the Partnership at the end of any
fiscal year commencing with the first fiscal year of the
Partnership. The withdrawal, death or insanity of the
General Partner shall dissolve the Partnership. The
Partnership shall terminate and a majority in interest of
the Limited Partners may select one or more persons to wind
up the affairs of the Partnership in due course and
discharge the functions exercised by the General Partner
under Section 9.02 subject to Section 2.05 and Section 2.06
hereof.
In the event of the death or insanity of the General
Partner or the giving of notice of withdrawal by the General
Partner, the interest of the General Partner shall continue
at the risk of the Partnership business until the affairs of
the Partnership have been wound up in due course.
If the General Partner becomes disabled and remains so
disabled for more than 15 consecutive days, the Limited
Partners may by a vote of a majority in interest select one
or more persons to perform the functions of the General
Partner during the period of disability; but if the
disability continues for 90 days from the date on which the
General Partner becomes disabled, the Partnership shall in
any event terminate. Prior to the selection by a majority
in interest of the Limited Partners of one or more persons
to perform the functions of the General Partner, pursuant to
this paragraph, a person or persons designated by prior
appointment by the General Partner may perform such
functions.
The person designated by prior appointment by the
General Partner to function as General Partner shall be
entitled to all of the powers of the General Partner and to
the benefit of Section 2.05 and 2.06 and shall be paid a
reasonable fee as determined by the General Partner and
reimbursed for his reasonable expenses.
For purposes of this Section 8.01, the General Partner
is "disabled" if because of disease or injury he is rendered
unable to perform his duties as General Partner under this
Agreement.
SECTION 8.02. WITHDRAWAL, DEATH, ETC., OF LIMITED
PARTNER. A Limited Partner may, upon 30 days' prior notice
withdraw from the Partnership at the end of any fiscal year
commencing with the first fiscal year of the Partnership.
The withdrawal, death or insanity of a Limited Partner shall
not dissolve the Partnership.
In the event of death or insanity of a Limited Partner
of the giving of notice of such Limited Partner shall
continue at the risk of the Partnership business until the
last day of the fiscal year in which such event takes place
(herein called the "year of determination") or earlier
termination of the Partnership. If the Partnership is
continued after the expiration of the year of determination,
such Limited Partner or his legal representatives shall be
entitled to receive within 60 days of the end of such fiscal
year, in accordance with Section 8.03, the Liquidating Share
of such Limited Partner as of the end of the year of
determination. The interest of a Limited Partner who serves
notice of withdrawal, dies or becomes insane or the interest
of the legal representatives of such Limited Partner shall
not be included in calculating a majority in interest of the
Limited Partners under Section 7.01, Section 8.01 and
Section 11.04.
SECTION 8.03. PAYMENT OF LIQUIDATING SHARE. The
Liquidating Share of a withdrawing, deceased or insane
Partner shall be an amount equal to the Capital Account of
such Partner as adjusted at the end of the fiscal year to
reflect adjustment to the Capital Account pursuant to
Section 5.03.
The Liquidating Share shall be subject to a charge not
in excess of 2% of the amount thereof as the General Partner
may determine to cover the costs of selling Securities in
order to effect payment of such Liquidating Share, and such
expense shall be specially allocated to the Capital Account
of such withdrawing Partner.
SECTION 8.04. REQUIRED WITHDRAWALS. In the event that
at the beginning of any fiscal year the Capital Account, as
adjusted to reflect all year end adjustments pursuant to
Section 5.03 for the prior year, of any Limited Partner
shall be less than one percent (1%) of the aggregate amount
of Capital Accounts of all Partners (including such Limited
Partner), then, in such event, the General Partner, at any
time during the course of that fiscal year and upon ten (10)
days' written notice to said Limited Partner, may (but shall
not be obligated to) effect the withdrawal of such Limited
Partner according to the following procedure:
(a) The General Partner, under such
circumstances, shall first have the option to
acquire for his own account and at his own expense
the Partnership interest of said Limited Partner
by payment to said Limited Partner of an amount
equal to:
(i) the Capital Account of
such Limited Partner at the beginning of
the current fiscal year as adjusted to
reflect that Limited Partner's
Partnership Percentage of any Net
Profits or Losses, and net recognized or
unrecognized capital gains or losses for
the current fiscal year to the date of
the required withdrawal, less the amount
of any loans to or withdrawals by said
Limited Partner pursuant to Sections
6.01 and 6.02 hereof, since the
beginning of the current fiscal year;
plus
(ii) two percent (2%).
(b) If the General Partner chooses not to
purchase for his own account the interest of such
Limited Partner, then a withdrawal of such Limited
Partner shall be effected by the General Partner
on behalf of the Partnership and at the
Partnership's expense by payment to the Limited
Partner of an amount equal to the Capital Account
of such Limited Partner at the beginning of the
current fiscal year as adjusted to reflect that
Limited Partner's Partnership Percentage of any
Net Profits or Losses and net recognized or
unrecognized capital gains or losses for the
current fiscal year to the date of the required
withdrawal, less the amount of any loans to or
withdrawals by said Limited Partner pursuant to
Sections 6.01 and 6.02 hereof since the beginning
of the current fiscal year.
(c) Upon any such payment either pursuant to
(a) or (b)above, such Limited Partner shall be
deemed to have withdrawn from the Partnership as
of the date of such payment and such Limited
Partner shall have no interest in the profits or
losses of the Partnership for the fiscal year in
which payment is made to him pursuant to this
paragraph of this Section 8.04. The interest of
any Limited Partner in the Partnership may be
terminated as of the end of any fiscal year if
determined by the General Partner to be in the
best interest of the Partnership upon notice to
that effect to such Partner at least 30 days prior
to the end of such year. Such notice of
termination and exclusion shall have the same
effect as a notice of withdrawal by such Partner
pursuant to Section 8.02 and the Limited Partner
receiving such notice shall be treated for all
purposes and in all respects as a Partner who has
given notice of withdrawal.
SECTION 8.05. LIMITATIONS ON WITHDRAWAL OF LIQUIDATING
SHARE. The right of any withdrawn, deceased or insane
Partner or his legal representative to have distributed the
Liquidating share of such Partner pursuant to this Article
VIII is subject to the provision by the General Partner for
all Partnership liabilities in accordance with Section 17 of
the Texas Uniform Limited Partnership Act and for reserves
for contingencies which reserves shall be held in escrow.
The unused portion of any reserve shall be distributed, with
interest at the rate of 5% per annum from the end of such
fiscal year to the date of payment, after the General
Partner shall have determined that the need therefor shall
have ceased.
ARTICLE IX
DURATION AND TERMINATION OF PARTNERSHIP
SECTION 9.01. DURATION. The Partnership shall
continue for a period of forty years from the day and year
first above written unless sooner terminated pursuant to
Section 8.01 or, at any time, by decision of the General
Partner. In the case of dissolution of the Partnership for
any cause, whether or not specified in this Agreement, the
Partnership business may be continued by the General
Partner.
SECTION 9.02. TERMINATION. On termination of the
business of the Partnership, the General Partner shall, out
of the Partnership assets, make distribution in the
following manner and order:
(a) to payment and discharge of the claims
of all creditors of the Partnership who are not
Partners;
(b) to payment and discharge pro rata of the
claims of all creditors of the Partnership who are
Partners; and
(c) to the Partners in the relative
proportions that their respective Liquidating
Shares bear to each other.
SECTION 9.03. METHOD OF DISTRIBUTIONS. Distributions
made pursuant to subparagraphs (a) and (b) of Section 9.02
shall be made solely in cash. All other distributions
and/or withdrawals made pursuant to this Agreement shall be
made in cash or marketable Securities or both, as the
General Partner may in his discretion determine.
ARTICLE X
REPORTS TO PARTNERS
SECTION 10.01. INDEPENDENT AUDITORS. The books of
account and records of the Partnership shall be kept at the
discretion of the General Partner and shall be audited as of
the end of each fiscal year by the independent certified
public accountants selected by the General Partner.
SECTION 10.02. REPORTS TO CURRENT PARTNERS. Within 60
days of the end of each fiscal year, the independent
certified public accountants selected by the General Partner
shall prepare and mail to each Partner a report setting
forth as of the end of such fiscal year:
(a) a balance sheet of the
Partnership;
(b) the Net Profits or Net Losses for such fiscal
year;
(c) the Unrecognized Capital Gains or
Unrecognized Capital Losses
for such fiscal year;
(d) the net recognized capital gains or net
recognized capital losses for such fiscal year;
(e) such Partner's beginning
Capital Account for the succeeding
fiscal year; and
(f) such Partner's Partnership
Percentage for the succeeding fiscal
year.
SECTION 10.03. REPORTS TO CURRENT AND FORMER PARTNERS.
In addition, within 60 days of the end of each fiscal year,
the independent certified public accountants selected by the
General Partner shall prepare and mail to each Partner (or
his legal representatives) to the extent necessary a report
setting forth in sufficient detail such transactions
effected by the Partnership during such fiscal year as shall
enable such Partner (or his legal representatives) to
prepare their respective Federal Income Tax Returns in
accordance with the laws, rules and regulations then
prevailing.
SECTION 10.04. INTERIM REPORTS. In addition, at least
every 90 days, the General Partner will provide interim
reports with respect to the progress of the Partnership.
ARTICLE XI
MISCELLANEOUS
SECTION 11.01. EXPENSES. The Partnership shall bear
the preorganization expenses of the Partnership and the
General Partner. The General Partner's ascertainment of any
expenses incurred by him on behalf of the Partnership shall
be conclusive.
SECTION 11.02. GENERAL. This Agreement (i) shall be
binding on the executors, administrators, estates, heirs,
and legal successors of the Partners; (ii) shall be governed
by, and construed in accordance with, the laws of the State
of Texas; and (iii) may be executed in several counterparts
with the same effect as if the parties executing the several
counterparts had all executed one counterpart as of the date
and year first above written, provided, however, that each
separate counterpart shall have been executed by the General
Partner and that the several counterparts, in the aggregate,
shall have been signed by all of the Partners.
SECTION 11.03. POWER OF ATTORNEY. Each of the
undersigned does hereby constitute and appoint Xxxxxxxxx X.
Xxxx, Xx., as his true and lawful representative and
attorney-in-fact, in his name, place and xxxxx to make,
execute, sign and file a Certificate of Limited Partnership
of the Partnership, any amendment thereof required because
of an amendment to this Agreement or in order to effectuate
any change in the membership of the Partnership or in the
Capital Contributions of the Partners and all such other
instruments, documents, and certificates which may from time
to time be required by the laws of the United States of
America, the State of Texas or any other state in which the
Partnership shall determine to do business, or any political
subdivision or agency thereof, to effectuate, implement and
continue the valid and subsisting existence of the
Partnership.
Such representatives and attorneys-in-fact shall not,
however, have any right, power or authority to amend or
modify this Agreement when acting in such capacities.
SECTION 11.04. AMENDMENTS TO PARTNERSHIP AGREEMENT.
The terms and provisions of this Agreement may be modified
or amended at any time and from time to time with the
written consent of a majority in interest of the Limited
Partners and the written consent of the General Partners
insofar as is consistent with the laws governing this
Agreement, provided, however, that, without the specific
consent of each Partner affected thereby, no such
modification or amendment shall (i) reduce the capital
account of any Partner or his rights of contribution or
withdrawal with respect thereto; (ii) change by way of
increase the General Partner's share of Net Profits and
Recognized or Unrecognized Capital Gains; or (iii) amend
this Section 11.04, and provided, further that without the
consent of the Limited Partners (iv) the General Partner may
amend the Schedule to reflect changes validly made in the
membership of the Partnership and the Capital Contributions
of the Partners.
SECTION 11.05. NOTICES. Each notice relating to this
Agreement shall be in writing and delivered in person or by
registered or certified mail. All notices to the
Partnership shall be addressed to its principal office and
place of business. All notices addressed to a Partner shall
be addressed to such Partner at the address set forth in the
Schedule. Any Partner may designate a new address by notice
to that effect given to the Partnership. Unless otherwise
specifically provided in this Agreement, a notice shall be
deemed to have been effectively given when mailed by
registered or certified mail to the proper address or
delivered in person.
SECTION 11.06. USE OF NAME. The Partnership shall
have the right to use the name of the General Partner. If
an additional General Partner is admitted to the Partnership
pursuant to Section 7.01(b), the term "General Partner"
shall include one or more General Partners unless the
context otherwise requires.
SECTION 11.07. GOOD WILL. No value shall be placed on
the name or good will of the Partnership.
SECTION 11.08. HEADINGS. The titles of the Articles
and the headings of the Sections of this Agreement are for
convenience of reference only, and are not to be considered
in construing the terms and provisions of this Agreement.
IN WITNESS WHEREOF, the undersigned have hereto, set
their hands and seals as of the day and year first above
written.
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Xxxxxxxxx X. Xxxx, Xx., General Partner
---------------------------------
Limited Partner
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(Address)
---------------------------------
(Social Security Number)
