LIMITED PARTNERSHIP AGREEMENT
OF
THE ISLAND XXXX COUNTRY CLUB, L.P.
LIMITED PARTNERSHIP
This Limited Partnership Agreement, made and entered into as of the day of
March 14, 1997, by and among the following General Partners:
Island Xxxx Country Club, Inc. (G.P.)
and the following Limited Partners
United States Golf and Entertainment Inc. (USGO)
International Business Advisory Group Inc. (IBAG)
In consideration of the mutual covenants herein, the Parties hereby form a
Limited Partnership upon the following conditions:
ARTICLE I
BASIC STRUCTURE
1.1 Formation. The Parties hereby form a Limited Partnership pursuant to
the Limited Partnership ACT of she state of New York
1.2 Partnership Name. The business of the Partnership shall be conducted
under the name of THE ISLAND XXXX COUNTRY CLUB LIMITED PARTNERSHIP.
1.3 Business and Purpose. The business and purpose of the Partnership shall
be to engage in any lawful act or activity in which a partnership may engage,
including, but without limitation, to engage generally in any and all phases of
the business of owning, holding, managing, controlling, acquiring, purchasing,
disposing of or otherwise dealing in or with any interests or rights in any real
or personal property, directly or through one or more other partnerships or
other entities or arrangements.
1.4. Principal Place of Business. The principal place of business of the
Partnership shall be at 000 Xxxxxxxxx Xxxx, Xxxxxx Xxxxxx, Xxxxx of New York, or
at such other place as the General Partners may from time to time designate.
1.5. Term. The Partnership shall commence on the date first above written
and shall continue for 25 years, unless sooner terminated by law or as herein
provided.
ARTICLE II
FINANCIAL ARRANGEMENTS
2.1 Initial Capital Contributions.
The initial capital contributions shall be as follows:
G.P. shall contribute $10
USGO shall contribute $25,000 upon signing and $475,000 within 5 days
after completion of their public offering but no later than June
1, 1997. (IBAG) shall contribute $100,000 plus the property known
as Island Xxxx Country, Club described in the attached deed which
is subject to a first mortgage of $1.0 million (interest only)
for a term of 10 years, interest payable monthly at 6% starting
January 1, 1999.
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The percentage share of profit and loss shall be:
G.P. 31%
USGO 20%
IBAG 49%
The monetary value of each partners capital account shall be:
G.P. $10
USGO $500,000
$BAG $1.00
USGO is however required to make an additional capital contribution no
later than July 1, 1997 of $500,000. Upon receipt of such capital
contribution, the percentage share of profit and loss shall be:
G.P.1%
USGO 50%
IBAG 49%
The monetary value of each partners capital account shall be:
G.P. $10
USGO $1,000,000
BAG $1.00
If USGO fails to make the entire second $500,000 capital contribution,
the G.P. may take any action it deems appropriate at the time with the
consent of at least 51% of partnership profit and loss interest to
either continue or discontinue the operations including but not
limited to borrowing funds or admitting additional partners.
2.2. Additional Capital Contributions. There shall be no additional capital
contributions to the capital of the Partnership unless otherwise specified in
2.1 or agreed to in writing by all of the Partners. A Partner may assign his or
her interest to others but only as herein provided.
2.3. Return of Capital Contribution. Each Partner irrevocably waives any
statutory, equitable or other rights he or she may have to withdraw or demand
the return of his or her capital contribution except as provided herein.
2.4. No Interest on Capital Contributions. Capital contributions to the
Partnership shall not bear interest.
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2.5. Nature of Interests. All property owned by the Partnership, whether
real or personal, tangible or intangible, shall be deemed to be owned by the
Partnership as an entity. No Partner shall have any direct ownership of any
Partnership property.
2.6. Partners' Share of the Profits and Losses. Each Partner shall share in
the profits and losses of the Partnership according to their respective
percentage share as specified in 2.1.
2.7. Limitation on Liability for Limited Partners. No Limited Partner shall
personally be liable for any of the debts or losses of the Partnership beyond
such Partner's capital interest in the Partnership.
2.8. Rights of Priority. Except as herein provided, the individual Partners
shall have no right to any priority over each other as to the return of capital
contributions.
2.9. Distribution of Profits. Distributions to the Partners of net
operating profits of the Partnership shall be made at least annually except that
earnings may be retained by the Partnership and transferred to Partnership
capital for the reasonable needs of the business as determined in the sole
discretion of the General Partners. Distributions as made shall be made to the
Partners simultaneously.
Net operating profit for any accounting period shall mean the gross
receipts of the Partnership for such period, less the sum of all cash expenses
of operation of the Partnership, and such sums as may be necessary to establish
a reserve for operating expenses.
2.10. Salary to General Partners. Annually, including year of termination,
the General Partners shall receive a salary for services rendered to the
Partnership equal to 6% of the gross receipts as determined by the partnerships
accountants for the year (or part year) ending Dec. 31st which shall be in
addition to their respective share of Partnership profits. The compensation for
the General Partners shall be reviewed periodically and adjusted appropriately.
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ARTICLE III
ACCOUNTING FOR THE PARTNERSHIP
3.1. Capital Accounts. Separate capital accounts shall be maintained for
each Partner. The capital interest of each Partner shall consist of all such
Partner's contributions to the capital of the Partnership as specified in 2.1
(for initial capital contribution) plus such Partner's share of Partnership
profits transferred to capital, less distributions to such Partner in reduction
of such Partner's Partnership capital, and less such Partner's share of
Partnership losses if transferred from such Partner's drawing account.
3.2. Drawing Accounts. An individual drawing account shall be maintained
for each Partner. All withdrawals, other than salaries, made by a Partner shall
be charged to such Partner's drawing account. Each Partner's share of profits
and losses shall be credited or charged to such Partner's drawing account.
A credit balance of a Partner's drawing account shall constitute a
Partnership liability to that Partner, it shall not constitute a part of such
Partner's capital account or such Partner's interest in the capital of the
Partnership. If, after the net profit or the net loss of the Partnership for the
fiscal year has been determined, a Partner's drawing account showing a deficit
(a debit balance), whether occasioned by drawings in excess of such Partner's
share of Partnership profits or by charging such Partner for such Partner's
share of a Partnership loss, the deficit shall constitute an obligation of that
Partner to the Partnership to the extent of the Partner's capital account.
However, in no event shall any Limited Partner be liable for any amount beyond
the balance in such Partner's capital account.
Payment of any amount owing to the Partnership shall be made in a manner
and time
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determined by the General Partners. Such obligations shall not be made payable
on demand nor shall interest he charged thereon above the prime interest rate
plus 3 percentage points.
3:3. Accounting Year. The Partnership's fiscal year shall commence on
January 1st of each year and shall end on December 31st of each year.
3.4. Method of Accounting. The Partnership shall maintain its accounting
records in accordance with generally accepted accounting principles and shall
report for income tax purposes on the cash basis.
3.5. Books and Records. The General Partners shall maintain the books and
records of the Partnership at the principal place of business. Each Partner
shall have access to such books and records and shall be entitled to examine
them at any time during the Partnership's ordinary business hours, provided
Partnership is given 7 days advance notice.
3.6. Annual Statements. At the end of the year, the general Partners shall
cause the Partnership's accountant to prepare a balance sheet setting forth the
financial position of the Partnership as of the end of that year and a statement
of operations (income and expenses) for that year. A copy of the balance sheet
and statement of operations shall be delivered to each Partner as soon as it is
available. Copies of all income tax returns filed by the Partnership also shall
be furnished to all Partners.
Each Partner shall he deemed to have waived all objections to any
transaction or other facts about the operation of the Partnership disclosed in
the balance sheet, statement of operations and income tax returns unless he or
she shall have notified the General Partners in writing of his or her objections
within thirty (30) days of the date on which each such document is mailed. In
the event any limited partnership shall request a certified audit be performed,
the limted partnership shall bear the full cost.
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ARTICLE IV
ADMINISTRATIVE PROVISIONS
4.1. Management. The business of the Partnership shall be under the
exclusive control of the General Partners who shall act by a majority vote of
the general partners(s) in all business affairs. For these purposes each General
Partner shall have one vote. The Limited Partners shall not participate in the
management of the business of the Partnership.
4.2. Time Devoted by General Partners. The General Partners are required to
devote to the business of the Partnership such time as is reasonable and
prudent.
4.3. Conflicts of Interest. Partners may engage in or possess interests in
other business ventures of every kind and description for their own accounts.
Neither the Partnership nor any of the Partners shall have any rights by virtue
of this Agreement in such independent business ventures or to the income or
profits derived therefrom.
4.4. Powers of the General Partners. The General Partners shall have the
authority to exercise the powers reasonably necessary in order to pursue the
Partnership's purposes including, but not limited to, the following:
a. To obtain, sell, convey, mortgage, encumber, lease, exchange, pledge,
partition, plat, subdivide, improve, repair, surrender, abandon or otherwise
deal with or dispose of any and all real property of whatsoever character and
wheresoever situated at such time or times and in such manner and upon such
terms as the General Partners deem expedient and proper. To give options
therefore, to execute deeds, transfers, leases, pledges, mortgages, and other
instruments of any kind. Any, leases and contracts may
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extend beyond the term of the Partnership.
b. To acquire any personal property for the use of the Partnership.
c. To purchase, invest in, or otherwise acquire, and to retain, any
and all stocks, bonds, notes, or other securities, or any variety of real
or personal property, including stocks or interests in investment trusts
and common trust funds operated and managed by a corporate trustee.
d. To sell, transfer, assign, convey, lease, exchange, or otherwise
dispose of any or all of the assets of the Partnership upon such terms and
conditions as the General Partners deem advisable, including a deferred
payment sale or an exchange for other assets of any kind.
e. To place record title to, or the right to use, Partnership assets
in the name of a General Partner or the name of a nominee for any purpose
convenient or beneficial to the Partnership.
f. To open and to close checking accounts. savings accounts and safety
deposit boxes in banks or similar financial institutions, with or without
indication of any fiduciary capacity. To deposit cash in and withdraw cash
from such accounts and boxes, with or without any indication of any
fiduciary capacity. To hold such accounts and securities in bearer form, or
in the name of a General Partner or in the name of a nominee, with or
without indication of any fiduciary capacity.
g. To borrow money upon terms acceptable to the General Partners from
any person or entity, to pledge or mortgage any property as security,
therefore and to renew any indebtedness incurred by the General Partners.
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h. To employ brokers, consultants, attorneys, accountants, architects,
engineers, property managers, leasing agents and other agents, persons or
entities deemed appropriate to the conduct of the Partnership business,
including, without limitation, a General Partner, any persons or entities
related to a General Partner, or in which a General Partner has an
interest.
i. To adjust, arbitrate, compromise, xxx, defend, settle, abandon or
otherwise deal with any and all claims in favor of or against the
Partnership.
j. To acquire and enter into any contract of insurance which the
General Partners deem necessary and proper for the protection of the
Partnership, for the conservation or its assets, or for any purpose
convenient or beneficial to the Partnership.
k. To execute and deliver on behalf of the Partnership such documents
or instruments as the General Partners deem appropriate in the conduct of
the Partnership business. No person, firm or corporation dealing with the
Partnership shall be required to inquire into the authority of the General
Partners to take any action or make any decisions.
1. To make employment contracts, to pay pensions and to establish
pension and other incentive plans of any or all of its employees.
m. To establish, invest and maintain reserves for the benefit of the
Partnership in such amounts as the General Partners, in their sole
discretion, shall determine, and to expend such reserves in such amounts
and for such purposes as the General Partners shall determine.
4.4A (See attached)
4.5. Restrictions on Powers. No Partner, without the consent of all the
other
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4.4A USGO and IBAG hereby irrevocably constitutes and appoints G.P. as its
true and lawful attorney, in its name, place and stead to make execute,
acknowledge and file:
a). any certificate of limited partnership or other instrument which
may be required to be executed or filed by the partnership or which the GP
shall deem advisable to execute or file as a consequence of USGO failing to
contribute all of the additional $500,000 of capital, and
b). any and all amendments or modifications to the limited partnership
including but not limited to a decrease in USGO's equity or percentage
interest in the profits and loss partnersjip which, in the sole opinion of
the general partner, is required as a consequence of USGO's failure to make
the additional $500,000 capital contribution.
9A
Partners, shall:
a. Do any act in contravention of this Agreement.
b. Do any act which would make it impossible to carry on the ordinary
business of the Partnership.
c. Confess judgment against the Partnership.
d. Possess Partnership property, or assign his or her interest or
rights in specific Partnership property for other than a Partnership
purpose.
4.6. Expulsion of a Limited Partner. The General Partners may terminate the
interest of a Limited Partner and expel such Partner for any of the following
reasons:
a. For interfering in the management of the Limited Partnership
affairs or by holding themselves out to others as having the power to act
for or bind the Partnership.
b. For engaging in conduct which could result in the Partnership
losing its tax status as a partnership.
c. For engaging in conduct which tends to bring the Partnership into
disrepute or such Partners interest becomes subject to attachment,
garnishment, or similar legal proceedings.
d. For failing to meet any commitment to a General Partner in
accordance with any written undertaking.
In each of the foregoing events, the termination shall not result in a
forfeiture to the Limited Partner of the value of his or her interest in the
Partnership at the time of termination.
4.7. Removal of a General Partner. A General partner may be removed upon
the written consent or affirmative vote of Limited Partners owning 51% of the
then outstanding
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Partnership interests. However, if the General Partner that was voted to be
removed is the only remaining General Partner, then before such removal is
effective and simultaneously with such removal, a successor General Partner must
be elected by the Limited Partners owning 89% of the then outstanding
Partnership interests.
4.8. Liability. No Partner shall incur any liability for any mistakes or
errors in judgment made in good faith and in the exercise of due care in
connection with the Partnership business. No Partner shall be deemed to have
violated any of the provisions of this partnership Agreement for any such
mistakes or errors in judgment.
4.9. Indemnification of Partners. The Partnership shall promptly indemnify
each Partner for payments reasonably made and personal liabilities reasonably
incurred by such Partner in the ordinary conduct of Partnership business or for
the preservation of its business or property.
4.10. Indemnification in General. The Partnership shall indemnify, to the
full extent permitted by law, any person who is made, or threatened to be made,
a party to any action, suit or proceeding (whether civil, criminal,
administrative or investigative) by reason of the fact that such person, or his
or her legal or personal representative, is or was a General Partner, employee
or agent of the partnership or serves or served any other enterprise at the
request of the Partnership.
4.11. Divorce. The Partnership shall not be terminated by the divorce of a
Partner.
4.12. Lawsuits. The Partnership shall not be terminated by a lawsuit
against the Partnership or a Partner.
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ARTICLE V
MEETINGS OF PARTNERS
5. l. Annual Meetings of Partners. Annual meetings of Partners, if actually
held, shall be held on such date and at such time as shall be designated from
time to time by the General Partners and stated in the written notice of the
meeting. At the meeting, the Partners shall transact such other business as may
properly be brought before the meeting.
5.2. Special Meetings of Partners. Special meetings of the Partners, for
any purpose or purposes, may be held by waiver of notice and consent and shall
be called by the General Partners at the written request of Partners owning not
less than ten percent (10%) of the entire capital or profit interest of the
Partnership. Such request shall state the purpose or purposes of the proposed
meeting.
Business transacted at a special meeting of the Partners shall be limited
to the purposes stated in the written notice unless all of the Partners agree to
do otherwise.
5.3. Voting at Annual and Special Meetings. All Partners shall have the
right to vote at the annual meeting and any special meetings concerning business
which may properly be brought before the meeting according to their respective
percentage share of capital interest. Except as otherwise set forth herein, a
majority of profit and loss percentage shall control.
5.4. No Meeting or Vote Required if Written Consent. Whenever the vote of
the Partners at a meeting is required or permitted to be taken, the meeting and
vote of the Partners may be dispensed with if the written consent to such action
is obtained from Partners having no less than the minimum percentage of the vote
required of such action.
5.5.General Partner Meetings. The General Partners may hold meetings, both
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regular and special, either within or without the state of the Partnership's
principal place of business. Regular meetings of the General Partners may be
held without notice at such time and at such place as shall from time to time be
determined by the General Partners. Special meetings of the General Partner may
be called by a General Partner on one (1) day's notice to each General Partner,
either personally or by mail or by telegram.
At all meetings of the General Partners, a majority of the General Partner
shall constitute a quorum for the transaction of business and the act of a
majority of the General Partners present at any meeting at which there is a
quorum, shall be the act of the General Partners. Any action, required or
permitted to be taken at any meeting of the General Partners, may be taken
without a meeting if the General Partners who have the necessary votes to take
such action consent in writing.
5.6. Telephone Conference. Partners may participate in a meeting by means
of telephone conference or similar communications equipment. All persons
participating in a meeting pursuant to such equipment shall constitute presence
in person at such meeting.
ARTICLE VI
TRANSFER OF PARTNERSHIP INTEREST
6.1. Transfers. The Partners shall not sell, assign, pledge, or otherwise
transfer or encumber in any manner or by any means whatever, their share in all
or any part of their interests of the partnership now owned or after acquired to
a non-partner, without having first obtained the consent of or offered such
share to the other Partners and to the Partnership in accordance with the terms
and conditions of this Agreement.
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6.2. Joint Ownership. It is understood and agreed to by the parties hereto
that the interest owned by a Partner may be owned jointly by said Partner and
his or her spouse. The Partners agree that the spouses of the respective
Partners shall in all respects be bound by this Agreement and that in the event
that a Partner is required to sell his or her interest pursuant to this
Agreement, the respective spouse must comply with this Agreement and shall
execute any and all documents required as a result thereof.
6.3. Transfers to Living Trust. Any Partner may transfer his or her
interest to his or her own revocable Living Trust. Upon such transfer, legal
title shall rest in such Living Trust, but such interest shall be subject to the
same events and circumstances as if the transferring partner continued to own
such interest. Further, said transferring Partner shall continue to exercise all
rights and be liable for all duties imposed by this Agreement.
6.4. Sale. A Partner may sell his or her Partnership interest, but only
after such Partner has first offered it to the Partnership and the other
Partners as follows:
a. The Partner shall give written notice to the Partnership that such
Partner desires to sell his or her interest. The Partner shall attach to
that notice the written offer of a prospective purchaser to buy the
interest. This offer shall be complete in all details including the
purchase price and terms of payment. The Partner shall certify that the
offer is genuine and in all respects what it purports to be.
b. For one hundred twenty (120) days from receipt of the written
notice from the Partner, the Partnership shall have the option to retire
the interest of the Partner at the price and on the terms contained in the
offer submitted by the Partner.
c. If the Partnership does not retire the interest of the Partner,
then the other
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Partner shall have the option to acquire such Partner's interests at the
price and on the terms contained in the offer submitted by the Partner. The
Partners who exercise this option may acquire such Partner's interest in
proportion to their respective capital interests, unless they otherwise
agree to a different percentage, within sixty (60) days after the
termination of the Partnership's option to buy.
d. If neither the Partnership nor any of the Partners exercise the
option to acquire such Partner's interest, the Partner shall be free to
sell his or her Partnership interest to the said prospective purchaser of
the price, and on the terms contained in the certified offer submitted by
the Partner.
6.5. Assignment. Except as herein provided, a Partner shall not assign his
or her Partnership interest. However, a Partner may assign his or her
Partnership interest to other Partners without the consent of any other Partner.
6.6. Transfer of General Partner Interest. The transferee of a general
partnership interest shall acquire such interest in the capacity of a Limited
Partner.
6.7. Death or Incompetency of a Limited Partner. Upon the death or legal
incompetency of an individual Limited Partner, such Partner's authorized
representative shall have all of the rights of a Limited Partner for the purpose
of settling or managing such Partner's estate. The authorized representative
shall have such power as the decedent or incompetent possessed to assign such
Limited Partner's interest in the Partnership to an assignee and to join with
such assignee in making application to substitute such assignee as a Limited
Partner.
6.8. Cessation of a Legal Entity. Upon the bankruptcy, insolvency,
dissolution or other cessation to exist as a legal entity, of a Limited Partner
not an individual, the authorized
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representative of such entity shall have all the rights of a Limited Partner for
the purpose of effecting the orderly winding up and disposition of the business
of such entity. The authorized representative shall have such power as such
entity possessed to assign such interest of the entity in the Partnership to an
assignee and to join with such assignee in making application to substitute such
assignee as a Limited Partner.
6.9. Restriction on Transfer because of Tax Effect. No Limited Partner or
other person who has become the holder of interest in this Partnership shall
transfer, assign or encumber all or any portion of such interest in the
Partnership during any fiscal year if such transfer, assignment or encumbrance
would, in the sole discretion of the General Partners, result in the termination
of the Partnership for purposes of the then applicable provisions of the
Internal Revenue Code of 1986, as amended.
6.10. Restriction on Transfer because of Securities Laws. No Limited
Partner (or other person) who has become the holder of interest in the
Partnership, shall transfer, assign, or encumber all or any portion of such
interest in the Partnership unless such Partner has obtained the prior written
consent of the Director of the Securities Commission, if required under the
Commission's rules, and the written opinion of counsel for the Partnership that
the transfer will not violate any federal or state securities laws.
ARTICLE V11
SUBSTITUTED LIMITED PARTNER
7.1. Conditions. No assignee (or transferee) of the whole or any portion of
a Limited Partner's interest in the Limited Partnership shall have the right to
become a substituted
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Limited Partner in place of such Partner's assignor unless all of the following
conditions are satisfied:
a. The General Partners, in their sole and absolute discretion, have
consented in writing to the admission of the assignee as a substituted
Limited Partner.
b. The fully executed and acknowledged written instrument of
assignment sets forth the intention of the assignor that the assignee
become a substituted Limited Partner and the assignment has been filed with
the Limited Partnership.
c. The Limited Partnership interest being acquired by the assignee
consists of all of the assigning Limited Partner's interest.
d. The assignor and assignee execute and acknowledge such other
instruments as the General Partners may deem necessary or desirable to
effect such admission, including the written acceptance and adoption by the
assignee of the provisions of this Agreement and such assignee's execution,
acknowledgment and delivery to the General Partners of a Power of Attorney,
the form and content of which shall be provided by the General Partners.
e. A reasonable transfer fee, not exceeding fifteen percent (15%) of
the present value of the transferred Partnership interest, has been paid by
the assignee to the Partnership.
7.2. Amendment Only Required Quarterly. The General Partners will be
required to amend the Agreement of Limited Partnership only quarterly to reflect
the substitution of Limited Partners. Until the Agreement of Limited Partnership
is so amended, an assignee shall not become a substituted Limited Partner.
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7.3. Consent Not Required. No consent of any of the Limited Partners is
required to effect the substitution of a Limited Partner, except that a Limited
Partner who assigns his or her interest must evidence his or her intention that
the assignee be admitted as a substituted Limited Partner in such Partner's
place and he or she must execute all necessary instruments.
7.4. Voting Interests. In the event a vote of the Limited Partners shall be
taken pursuant to this Agreement for any reason, a Limited Partner shall, solely
for the purpose of determining the number of Partnership interests held by such
Partner in weighing such Partner's vote, be deemed the holder of any Partnership
interests assigned by such Partner in respect of which the assignee has not
become a substituted Limited Partner. Provided that under no circumstances shall
an assignee have such voting rights.
ARTICLE VIII
DISSOLUTION
8.1. Dissolution of Limited Partnership. The Limited Partnership shall be
dissolved only upon the occurrence of any of the following events:
a. The expiration of the term of the Partnership.
b. Voluntary dissolution of the Partnership by agreement of all of the
Partners.
c. The Written consent or affirmative vote to dissolve the Limited
Partnership of Limited Partners owning more than 51% of the then
outstanding Partnership interests.
d. The failure to elect a successor General Partner simultaneously
with the removal of the only remaining General Partner as required herein.
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e. The bankruptcy or dissolution of a Corporate General Partner
(except by way of merger, consolidation or corporate organization or
reorganization) or the death, incapacity or bankruptcy of an individual
General Partner when no other General Partners remain or succeed. Provided,
that the Limited Partners owning more than 51% of the then outstanding
Partnership interests may determine to re-form the Partnership and elect a
new General Partner and continue the Partnership's business. In such event,
the Partnership shall be dissolved and all of its assets and liabilities
shall be contributed to a new Limited Partnership which shall be formed and
all the remaining parties to this Agreement and such new General Partner
shall become parties to such new Limited Partnership.
For purposes of obtaining the required vote to reform the Partnership,
Limited Partners owning 10% or more of the then outstanding partnership
interests may cause to be sent to Limited Partners of record a written
notice setting forth the date and purpose of the meeting. Expenses incurred
in the reformation, or attempted reformation. of the Partnership shall be
deemed expenses of the Limited Partnership. For the purposes of this
Section, an individual General Partner shall be deemed to be incapacitated
if he or she is disabled and unable to take an active part in the
management of the partnership business for a continuous period of at least
six (6) months.
f. The entry of a dissolution decree or judicial order by a court of
competent jurisdiction or by operation of law.
8.2. Non-Termination of Partnership. The Limited Partnership shall not be
terminated by the death, insanity, bankruptcy, withdrawal or expulsion of any
Limited Partner,
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by the assignment of any Limited Partner of such Partner's interest, or by the
admission of a new Partner.
8.3. Liquidation of Assets. In the event of dissolution and final
Termination, the General Partners shall wind up the affairs of the Partnership
and shall sell all the Partnership assets as promptly as it consistent with
obtaining, insofar as possible, the fair value thereof.
8.4. Winding Up the Partnership. Upon dissolution of the Partnership, the
General Partners shall immediately commence to wind up and liquidate the
Partnership business. The Partners shall continue to share profits and losses
during the period of liquidation in the same proportions as before dissolution.
In liquidating the Partnership business, the General Partners may either sell
all or part of the Partnership assets and distribute the proceeds or may make
distributions completely or partially in kind pro rata or non-pro rata as to
specific assets. Such assets or proceeds therefrom, to the extent sufficient,
shall be applied and distributed in the following order:
a. Payment to creditors of the Partnership, other than Partners, in
the order of priority provided by law.
b. Payment to Partners for unpaid salaries and for the credit balances
in their drawing accounts.
c. Payment to the Partners of credit balances in their capital
accounts.
8.5. Gains or Losses in Process of Liquidation. Any gain or loss on
disposition of Partnership properties in liquidation shall be credited or
charged to the Partners in proportion to their interest in profits or losses of
the Partnership. Any property distributed in kind in liquidation shall be valued
and treated as though the property were sold and the cash proceeds
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were distributed. The difference between the value of property distributed in
kind and its book value shall be treated as a gain or loss on sale of the
property and shall be credited or charged to the Partners in proportion to their
interests in profits and losses of the Partnership.
8.6. Right to Demand Property. No Partner shall have the right to demand
and receive property in kind of his or her distribution.
ARTICLE IX
POWER OF ATTORNEY
9.1. Documents. Each Partner hereby irrevocably constitutes and appoints
each General Partner as his or her true and lawful attorney, in his or her name,
place and xxxxx, to make, execute, acknowledge and file:
a. Any certificate of Limited Partnership or other instrument which
may be required to be executed or filed by the Partnership or which the
General Partners shall deem advisable to execute or file.
b. Any and all amendments or modifications to the instruments
described herein.
c. All documents which may be required to effectuate the dissolution
and termination of the Partnership.
9.2. Property and Claims. Each Partner does hereby appoint the first named
General Partner as his or her true and lawful attorney, in his or her name,
place and xxxxx, to do the following:
a. To purchase, deal with property and to mange the same including,
without
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limitation, to sign, deliver or record all deeds, contracts of sale or
other instruments conveying title to the property, either in the names of
the Partners or in the name of the Partnership.
b. To establish bank accounts for the Partnership and to deposit and
withdraw funds therefrom, solely upon his or her signature.
c. To demand, xxx for, levy or recover all sums of money, debts, rents
or other demands or claims of any nature whatsoever which are or shall be
due the Partnership in such manner as a General Partner shall determine to
be advisable.
9.3. Powers Coupled with an Interest. Each Partner expressly agrees and
intends that the foregoing powers of attorney are coupled with an interest.
9.4. Assignment. The foregoing powers of attorney shall survive the
delivery of an assignment by any of the partners of the whole or any portion
of his or her Partnership interests.
9.5 Notice. From time to time, the General Partners may, at their sole
discretion, send notice to the Partners of actions taken. If objection is not
received by the General Partners within thirty (30) days of said notice. then
said action shall be binding upon all of the partners.
ARTICLE X
MISCELLANEOUS
10.1 Execution in Counterparts. This Agreement may be executed in any
number of counterparts with the same effect as if all Parties had all signed the
same document. All counterparts shall be construed together and shall constitute
one agreement. Each Party shall become bound by the agreement immediately upon
affixing his or her signature hereto.
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independently of the signature of any other Party.
10.2 Sole Agreement. This Agreement and the exhibits hereto constitute the
entire understanding of the Parties with respect to the subject matter hereof
and supersede all prior agreements and understandings pertaining thereto.
10.3 Choice of Law. This Agreement and all rights and liabilities of the
Partners, assignees, substituted limited partners, the Partnership and the
assets of the Partnership shall be subject to and governed by the internal laws
of the state of New York -- not the laws pertaining to choice or conflict of
laws.
10.4 Severability. If any provision of this Agreement, or the application
thereof, shall, of any reason and to any extent, be invalid or unenforceable,
the remainder of this Agreement and the application of such provision to other
persons or circumstances shall not be affected thereby. but rather shall be
enforced to the maximum extent permissible under applicable law.
10.5 Agreement Binding. This agreement shall be binding upon the parties
hereto and upon their heirs, executors, administrators, successors or assigns,
and the parties hereto agree for themselves and their heirs, executors,
administrators, successors and assigns to execute any and all instruments in
written, which are or may become necessary or proper to carry out the purpose
and intent of this Agreement.
10.6 Titles and Subtitles. Titles of the articles, paragraphs and
subparagraphs are placed herein for convenient reference only and shall not to
any extent have the effect of modifying, amending or changing the express terms
and provisions of the Partnership Agreement.
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10.7 Words and Gender or Number. As used herein, unless the context clearly
indicates the contrary, the singular number shall include the plural, the plural
the singular, and the use of any gender shall be applicable to all genders.
10.8 Partner. Unless the context requires otherwise, any reference to a
General Partner shall include all General Partners and any reference to the
General Partners shall mean any General Partner. Any reference to Partner shall
include both General Partners and Limited Partners.
10.9 Partnership Interest. Unless the content requires otherwise, any
reference to an interest in the Partnership shall mean the capital interest in
the Partnership.
10.10 Amendments. Except with respect to vested rights of the Partners,
this Partnership Agreement may be amended at any time by an 51% vote as measured
by the interest in the sharing of profits and losses. A copy of any amendment
shall be promptly mailed or delivered to each Partner at such Partner's last
known address.
10.11 Opinion of Counsel. The doing of any act or the failure to do any act
by any Partner (the effect of which may cause or result in loss or damage to the
Partnership) if pursuant to opinion of legal counsel employed by the General
Partners on behalf of the Partnership, shall not subject such Partner to any
liability.
Further, the General Partners shall not be liable for any error in judgment
or any mistake of law or fact or any act done in good faith in the exercise of
powers and authority conferred upon them, but shall be liable only for gross
negligence or willful default.
10.12 Notice. Any and all notices provided for herein shall be given in
writing by first class mail. The notice shall be addressed to the last address
known to the sender or
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delivered to the recipient in person. Notice of a meeting shall be mailed not
less than ten (10) nor more than sixty (60) days before the date of the meeting
and shall state the place, date and hour of the meeting and the purpose or
purposes of the proposed meeting.
10.13 Waiver in General. No failure by any party to insist upon the strict
performance of any covenant, duty, agreement, or condition of this Agreement, or
to exercise any right or remedy consequent upon a breach thereof, shall
constitute a waiver of any such breach or any other covenant, duty, agreement,
or condition.
10.14 Waiver of Action for Partition. Each of the Parties hereto
irrevocably waives any statutory, equitable or other rights that he or she may
have to maintain any action for partition with respect to the Partnership
property.
10.15 Arbitration. Any controversy or claim arising out of or relating to
this Agreement shall only be settled by arbitration in accordance with the rules
of the American Arbitration Association, by one Arbitrator, and shall be
enforceable in any court having competent jurisdiction.
10.16 Validity. If any portions of this Agreement shall be held invalid or
inoperative, then, insofar as it is reasonable and possible,
(a) the remainder of this Agreement shall be considered valid and
operative,
and
(b) Effect shall be given to the intent manifested by the portion held
invalid or inoperative.
GENERAL PARTNERS:
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10.17 Benefit. Except as herein otherwise provided to the contrary, this
Agreement shall be binding upon and inure to the benefit of the parties
signatory hereto, their personal representatives, and assigns.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement.
ISLAND XXXX COUNTRY CLUB, L.P.
GENERAL PARTNER:
CORPORATION
/s/ [illegible]
--------------------------------
ISLAND XXXX COUNTRY CLUB INC.
LIMITED PARTNERS:
/s/ [illegible]
-------------------------------------------
US GOLD & ENTERTAINMENT INC.
/s/ [illegible]
-------------------------------------------
INTERNATIONAL BUSINESS ADVISORY GROUP, INC.
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