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EXHIBIT 3.1
AMENDMENT TO AMENDED AND RESTATED
LIMITED PARTNERSHIP AGREEMENT
OF SYNTHETIC INDUSTRIES L.P.
Dated as of November 11, 1986
Pursuant to Section 7(c)(xvi) thereof
B A C K G R O U N D
SI Management L.P. (the "GENERAL PARTNER") desires to amend the Amended
and Restated Limited Partnership Agreement dated as of November 11, 1986 of
Synthetic Industries L.P. (the "AGREEMENT") pursuant to Section 7(c)(xvi) of
the Agreement in order to comply with comments received from the Securities
Division of the Tennessee Department of Commerce and Insurance. The Limited
Partners have agreed, by their execution and delivery of the Agreement as
Limited Partners that the amendments effected hereby shall be binding upon them
and the Partnership. Capitalized terms used herein without definition shall
have the meanings ascribed to them in the Agreement.
NOW, THEREFORE, the Agreement is hereby amended as follows:
1. The section of the Agreement entitled "Certain Definitions" is
hereby amended by adding thereto the following definitions solely for the
purpose of calculating in Section 5 hereof compliance with the Statement of
Policy of the North American Securities Administrators Association, Inc. on
Real Estate Programs adopted on November 20, 1986 (the "GUIDELINES"):
"ACQUISITION EXPENSES" The total of all expenses paid by any
party in connection with the Investment in Stock of the Synthetic Group,
including, but not limited to, legal fees and expenses, travel and
communication expenses, costs of appraisals and accounting fees and
expenses.
"ACQUISITION FEES" The total of all fees and commissions paid by
any party in connection with the Investment in Stock of the Synthetic
Group, including, but not limited to, a Development Fee (except a
Development Fee paid to a person other than the General Partner or its
Affiliates) or any fee of a similar nature, however designated.
"AFFILIATE" As defined in subparagraph 7(f)(v) hereof.
"CASH FLOW" Program cash funds provided from operations of the
Partnership after deducting cash funds used to pay all other expenses,
debt payments, capital improvements and replacements.
"CASH AVAILABLE FOR DISTRIBUTION" Cash Flow less amounts set
aside for restoration, increase or creation of reserves.
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"DEVELOPMENT FEE" A fee for packaging of properties acquired or
to be acquired by the Partnership, including negotiating and approving
plans and undertaking to assist in obtaining necessary financing for the
Purchase Price of the Stock of the Synthetic Group, either initially or
at a later date.
"EQUITY LOAN" The loan in the amount of $64,000,000 obtained by
the Partnership from IR Synthetic Credit Corp., the proceeds of which
were used, among other things, to pay a portion of the Purchase Price of
the Stock of Synthetic Group.
"FRONT END FEES" Fees and expenses paid by any party for any
services rendered during the Partnership's organizational or acquisition
phase, including Organizational and Offering Expenses, Acquisition Fees,
Acquisition Expenses, and any other similar fees however designated by
the General Partner or its Affiliates.
"INVESTMENT IN STOCK OF THE SYNTHETIC GROUP" The amount of
Capital Contributions used, indirectly through payment of the Equity
Loan, to pay a portion of the Purchase Price of the Stock of the
Synthetic Group, including working capital reserves allocable thereto
(except that working capital reserves in excess of 5% shall not be
included), and other cash payments such as interest and taxes but
excluding Front End Fees.
"ORGANIZATIONAL AND OFFERING EXPENSES" Those expenses incurred in
connection with and in preparing the offering of Interests pursuant to a
private offering exemption from registration under Regulation D
promulgated under Section 4(2) of the Securities Act of 1933, and for
exemption or registration under the various state "Blue Sky" laws; and
subsequently offering and distributing it to qualified investors,
including sales commissions paid to broker-dealers in connection with
distribution of the Interests, printing fees and "Blue Sky" filing and
registration fees.
"PURCHASE PRICE OF THE STOCK OF THE SYNTHETIC GROUP" The
aggregate amount paid upon the purchase of stock of members of the
Synthetic Group, including interest expense incurred (from November 8,
1986 and through December 4, 1986) in connection with such purchase of
stock, and Acquisition Fees and satisfaction of outstanding loans and
obligations of such companies, but excluding points and prepaid
interest.
"SYNTHETIC GROUP" Synthetic Industries, Inc., Polyweave
Corporation and Synthetic Industries Limited.
2. Paragraph 7 is amended as follows:
(a) The seventeenth line of subparagraph 7(f)(ii) is amended
and restated in its entirety to read: "broker-dealer selling the
Interests."
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(b) The thirty-fourth and thirty-fifth lines of subparagraph
7(f)(ii) are amended and restated in their entirety to read: "securities
laws violations, the party seeking indemnification."
(c) The third line of subparagraph 7(f)(iii) is amended by
deleting "any Corporation."
(d) The sixth line of subparagraph 7(f)(iii) is amended by
deleting "or any such Corporation."
(e) The seventh line of subparagraph 7(f)(iii) is amended by
deleting "each such Corporation."
(f) The nineteenth line of subparagraph 7(f)(iii) is amended
by deleting "or any Corporation."
(g) The first and second lines of subparagraph 7(f)(v) are
amended and restated in their entirety to read as follows: "'Affiliate'
shall mean any person performing."
(h) The first line of subparagraph 7(g)(i) is amended to
replace "12(d)" by "12(e)."
(i) The twelfth line of subparagraph 7(g)(i) is amended by
deleting "and".
(j) The thirteenth line of subparagraph 7(g)(i) is deleted in
its entirety.
(k) The fourteenth line of subparagraph 7(g)(i) is amended by
deleting "sole General Partner."
(l) Subparagraph 7(g)(ii) is amended and restated in its
entirety to read as follows:
"In the event that the General Partner is terminated pursuant to
this subparagraph 7(g) or the General Partner voluntarily
withdraws as a general partner, the Partnership shall have the
option either: (i) to permit the General Partner to retain its
entire Interest other than any interest transferred pursuant to
subparagraph 7(g)(i) above (the "TRANSFERRED INTEREST") (the
interest of the General Partner other than the Transferred
Interest being referred to as the "REMAINING INTEREST"), or (ii)
to purchase from the General Partner all of the interest of the
General Partner except (A) the Transferred Interest and (B) a
7.5% interest in the Partnership from and after receipt by the
Partners of the Priority Return (the "RETAINED INTEREST") (the
interest of the General Partner other than the Transferred
Interest and the Retained Interest being referred to as the
"PURCHASED INTEREST"). The Remaining
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Interest or the Retained Interest, as the case may be, shall
automatically be converted to the interest of a Special Limited
Partner, which shall be entitled to distributions pursuant to
subparagraph 6(f) hereof to the extent of said interest, and no
more, provided that it shall at a minimum be entitled to one-
quarter of the distribution provided for in clause (iii) of
subparagraph 6(f) and shall have no right otherwise to
participate in distributions to the Limited Partners pursuant
hereto or to participate in management of the affairs of the
Partnership or to vote with the other Limited Partners, and the
Special Limited Partner's interest shall be disregarded in
determining whether action has been taken by the Limited
Partners. The purchase price payable by the Partnership to the
General Partner for the Purchased Interest, if any, shall be the
appraised value of the Purchased Interest as determined in
accordance with Section 12(j) and shall be payable in five equal
annual installments of principal, commencing on the first
anniversary of the effective date of such purchase, plus, if, and
only if, the General Partner is terminated pursuant to this
subparagraph 7(g), interest calculated at the annual rate,
compounded daily, announced by Chemical Bank, New York, as its
prime or reference rate, such rate to change as such prime or
reference rate changes from time to time. The obligation of the
Partnership to make such payment shall be evidenced by the
Partnership's promissory note to the General Partner; provided,
however, that the entire unpaid principal amount, together with
all accrued and unpaid interest thereon, shall be immediately due
and payable at the time of any Sale of Business or Public
Offering; and provided, further, that, if, and only if, the
General Partner has voluntarily withdrawn as a general partner,
such promissory note shall be payable only to the extent of the
distributions which the General Partner would have received had
the Partnership not purchased the Purchased Interest."
(m) Subparagraph 7(h) is amended by:
(A) amending and restating the first sentence thereof
to read in its entirety as follows:
"Upon the occurrence of any event described in
subparagraph 11(a)(iv), the Limited Partners having one
hundred percent (100%) of the Interests of the Limited
Partners who are then Partners in the Partnership shall
have ninety (90) days after the occurrence of such event
to agree in writing to continue the business of the
Partnership and to appoint, as of the date of the
occurrence of such event, one or more additional general
partners (the "NEWLY-APPOINTED PARTNER(S)"), in which
event the Partnership shall not be dissolved"; and
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(B) replacing the word "remaining" in the second
sentence of subparagraph 7(h) and in subparagraphs 7(h)(i) and
7(h)(ii) by the words "Newly-Appointed Partner(s)."
(n) Subparagraph 7(i) is deleted in its entirety.
(o) Subparagraph 7(j) is renumbered Subparagraph 7(i).
3. Paragraph 11 is amended as follows:
(a) The first line of subparagraph 11(a)(iii) is amended by
deleting "all of the General Partner, concurred in by".
(b) The third line of subparagraph 11(a)(iv) is amended by
deleting "or 7(h)".
(c) The third line of subparagraph 11(b) is amended by
correcting "ahlal" to read "shall."
(d) The eighth line of subparagraph 11(c) is amended and
restated in its entirety to read:
"cash and/or securities subject to any liabilities of the".
(e) The tenth line of subparagraph 11(c) is amended by
replacing the section reference after the word "subparagraph" to read
"6(f)."
(f) The eleventh line of subparagraph 11(c) is amended and
restated in its entirety to read:
"to this subparagraph is made in securities, the securities so".
4. Paragraph 12 is amended as follows:
(a) The seventeenth line of subparagraph 12(d) is amended by
deleting "7(h)".
(b) Subparagraph 12(e) of the Agreement is hereby amended and
restated to read in its entirety as follows:
"(e) The Balance Sheet of the Partnership as at the end of each
fiscal year, as well as statements of income, of changes in
financial position and of partners' equity for the year then
ended shall be prepared by the Partnership and examined by the
Partnership's accountants, and the General Partner shall furnish
each Limited Partner with a copy of such statements and the
report of such accountants,
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together with an unaudited statement of cash flow for such fiscal
year, without reference to non-cash items such as depreciation,
not later than March 31 following the end of such fiscal year."
(c) Subparagraph 12(j) is amended and restated to read in its
entirety as follows:
"(j) For the purposes of this Agreement, the appraised value of
an Interest shall be determined by an independent appraiser of
recognized professional standing who is in the regular business
of appraising businesses similar to the Business. Such appraiser
shall be selected, at the request of the General Partner, by any
authorized representative of the American Arbitration Association
or any successor organization thereto; provided, however, in the
event of removal of the General Partner pursuant to subparagraph
7(g) the appraisal of the Purchased Interest of the General
Partner shall be made jointly by an appraiser selected and paid
for by the Limited Partners and an appraiser selected and paid
for by the General Partner; provided, further, that in the event
the appraisers referred to in the preceding proviso cannot agree
upon a value for the Purchased Interest, the two appraisers shall
appoint a third appraiser, at the expense equally of the General
Partner, on the one hand, and the Limited Partners, on the other,
whose determination shall be binding and conclusive. Except as
otherwise provided in the preceding sentence, the appraisal made
by such appraiser shall be binding and conclusive as between the
selling Partner or Partners and the person purchasing such
Interest. The cost of such appraisal shall be borne equally by
the selling and purchasing parties, and by the latter, among
themselves, in proportion to their respective shares, except that
in the case of any transfer resulting from an event described in
subparagraph 10(a), the entire cost of appraisal shall be borne
by the selling Partner."
5. In accordance with the Guidelines, a percentage of Capital
Contributions must be committed to Investment in Stock of the Synthetic Group
which is equal to the greater of: (a) 80% of the Capital Contributions reduced
by .1625% for each 1% of financing of the Purchase Price of the Stock of the
Synthetic Group. To calculate the percent of financing of the Purchase Price
of the Stock of the Synthetic Group, in accordance with the Guidelines, the
amount of financing is divided by the Purchase Price of the Stock of the
Synthetic Group, excluding Front End Fees; the quotient is multiplied by .1625%
to determine the percentage to be deducted from 80%. The following are
examples of application of the formula using Capital Contributions of $1
Million in each case: (1) No financing -- 80% to be committed to Investment in
Stock of the Synthetic Group; (2) 50% financing -- 50% x .1625% = 8.125%; 80% -
8.125% = 71.875% to be committed to Investment in Stock of the Synthetic Group;
(3) 80% financing -- 80 x .1625% = 13%; 80% - 13% = 67% to be committed to
Investment in Stock of the Synthetic Group. Pursuant to this formula, the
percentage financed was 72.6%, calculated by dividing the amount financed of
$137,887,000 by the Purchase Price of the Stock of the Synthetic Group,
excluding
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Front End Fees, of $189,700,000; the minimum Investment in Stock of the
Synthetic Group is 68.21%, computed by multiplying 72.6% x .1625% = 11.79% and
subtracting 80% - 11.79% = 68.21%. The General Partner hereby represents to
the Limited Partners that not less than 77.5% of the aggregate proceeds of the
Capital Contributions of the Limited Partners made to the Partnership pursuant
to the Equity Sale will be applied, for purposes of the Guidelines, toward
Investment in Stock of the Synthetic Group, i.e., of the Capital Contributions
of the Limited Partners of $78,400,000, at least $60,829,252, or 77.5%, will be
used, through payment of the Equity Loan, to make such Investment in Stock of
the Synthetic Group.
6. Except as otherwise provided in this Amendment to Amended and
Restated Limited Partnership Agreement, the Agreement shall remain in full
force and effect without any other amendment, modification or alteration.
IN WITNESS WHEREOF, the undersigned has executed this Amendment on May
__, 1987, effective as of November 11, 1986.
SI MANAGEMENT L.P.
By: SI Management Service Corp.,
general partner
By
-----------------------------------
Name:
Title:
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THE INTERESTS IN SYNTHETIC INDUSTRIES L.P. HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 AND MAY NOT BE RESOLD UNLESS SUBSEQUENTLY
REGISTERED UNDER SUCH ACT OR UNLESS AN EXEMPTION FROM SUCH REGISTRATION IS
AVAILABLE. ADDITIONAL RESTRICTIONS ON TRANSFERABILITY ARE CONTAINED IN
PARAGRAPH 9 OF THIS AGREEMENT.
SYNTHETIC INDUSTRIES L.P.
AMENDED AND RESTATED
LIMITED PARTNERSHIP AGREEMENT
AGREEMENT by and among SI MANAGEMENT L.P. (the "GENERAL PARTNER") as
general partner (collectively with each person who shall at any time become a
general partner, herein referred to as the "GENERAL PARTNER" or "GENERAL
PARTNERS") and SI INVESTING CO. ("INITIAL LIMITED PARTNER"), as limited partner,
and each person who shall at any time become a limited partner under this
Agreement by executing a signature page hereof as a limited partner (such
persons including the Initial Limited Partner are herein collectively referred
to as the "LIMITED PARTNERS"). Dated as of November 11, 1986.
Dated as of November 11, 1986
WHEREAS, the General Partner and the Initial Limited Partner have formed
Synthetic Industries L.P. as a limited partnership under the laws of the State
of Delaware by executing and delivering a Limited Partnership Agreement dated
as of November 11, 1986 (the "ORIGINAL AGREEMENT") and causing a Certificate of
Limited Partnership to be filed in the office of the Secretary of State of the
State of Delaware;
WHEREAS, the General Partner and the Initial Partner desire to amend and
restate the Original Agreement as set forth herein; and
WHEREAS, the General Partner and the Initial Limited Partner desire that
Additional Limited Partners be admitted after the date hereof in reduction of
the Interest (as hereinafter defined) of the Initial Limited Partner as
contemplated hereby;
NOW, THEREFORE, in consideration of the premises, the Partners hereby
agree as follows:
CERTAIN DEFINITIONS
For purposes of this Agreement, the following terms shall have the
following respective meanings:
"ACT" The Delaware Revised Uniform Limited Partnership Act, as
amended.
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"ADDITIONAL LIMITED PARTNERS" Limited Partners, other than the
Initial Limited Partner, admitted to the Partnership as a result of, or
subsequent to, the Equity Sale.
"BUSINESS" The acquisition, ownership and operation of the assets
and business of Synthetic Industries, Inc., a converter of polypropylene
resins into woven products, and such other ancillary and related
businesses as the General Partner shall determine to be desirable.
"CAPITAL ACCOUNT" The account maintained by the General Partners
for each Partner pursuant to subparagraph 5(e) hereof.
"CAPITAL CONTRIBUTION" The amount of cash contributed by the
Partners to the Partnership in accordance with subparagraph 5(a).
"CERTIFICATE" The Certificate of Limited Partnership and any
amendment thereto required to be filed by the Partnership pursuant to
the laws of the State of Delaware.
"CODE" The Internal Revenue Code of 1986, as amended.
"CORPORATION" As defined in subparagraph 7(c) - (xii) hereto.
"DISTRIBUTIONS" Distributions of cash or other property made by
the Partnership to the Partners from any source.
"EQUITY SALE" The proposed sale by the Partnership of Units to
Additional Limited Partners which shall be deemed to have commenced on
the first day of the calendar month in which the first purchaser of an
Interest is admitted to the Partnership pursuant to subparagraph 3(c)
hereof and to have terminated on the first day of the calendar month in
which the last purchaser of an Interest is admitted to the Partnership
pursuant to subparagraph 3(c) hereof.
"GENERAL PARTNER" The general partner or general partners, from
time to time, of the Partnership, including SI Management L.P. and any
additional or successor general partner or general partners.
"INITIAL LIMITED PARTNER" SI Investing Co.
"INTEREST" The individual interest of each Partner in the
Partnership.
"LIMITED PARTNERS" The limited partner or limited partners, from
time to time, of the Partnership, including the Initial Limited Partner
and any additional or successor limited partner or limited partners
admitted to the Partnership pursuant to the terms of this Agreement.
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"PARTNER" A partner in the Partnership.
"PARTNERSHIP" Synthetic Industries L.P.
"PRIORITY RETURN" As defined in subparagraph 6(d) hereof.
"PUBLIC OFFERING" A transaction described in subparagraph 6(g)
and 7(c) - (xii) hereof.
"SCHEDULE OF PARTNERS' CONTRIBUTIONS" The Schedule attached to
each counterpart of this Agreement setting forth the Capital
Contribution and the Interest of the Partner(s) signatory to such
counterpart.
"TRANSFER" Any sale, transfer, gift, assignment or pledge or
grant of a security interest, by operation of law or otherwise, in or of
an Interest, excluding, however, any grant of such a security interest
in favor of the Partnership or any lender or surety approved by the
Partnership, and each of their assigns.
"UNIT" An Interest in the Partnership, of a size described in the
Confidential Memorandum distributed in connection with the Equity Sale,
to be sold pursuant to the Equity Sale to investors who will become
Additional Limited Partners.
FORMATION AND PURPOSE;
ADMISSION OF LIMITED PARTNERS
1. The Partnership has been formed in accordance with the laws of
the State of Delaware. The General Partner, on behalf of the Partnership, has
caused to be executed and filed in the office of the Secretary of State of the
State of Delaware a Certificate of Limited Partnership, and shall take such
further action as it may deem necessary or proper to permit the Partnership to
conduct business as a limited partnership in any state.
2. The Partnership is called Synthetic Industries L.P. The address
of the partnership will be c/o the General Partner at 000 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, or such other address as may be designated from time to
time by the General Partner. The agent for service of process upon the
Partnership shall be Delaware Corporate Organizers, Inc., 0000 Xxxxx Xxxxxx
Xxxxxx, X.X. Xxx 0000, Xxxxxxxxxx, Xxx Xxxxxx Xxxxxx, Xxxxxxxx 00000, or such
other agent as may be designated from time to time by the General Partner. The
registered office of the Partnership in the State of Delaware shall be c/o such
agent for service of process or such other address as may be designated from
time to time by the General Partner.
3. (a) The term of the Partnership shall end on December 31, 2035,
unless sooner terminated in accordance with this Agreement.
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(b) The General Partner of the Partnership is SI Management L.P.
(c) Subject to the provisions of Paragraph 9 relating to Transfers,
each Limited Partner signatory to this Agreement shall become a Limited Partner
upon the execution of a counterpart of this Agreement by such signatory and the
General Partner.
(d) To the extent that any Units are not sold in the Equity Sale, at
the time of termination of the Equity Sale, SI Management Service Corp., the
general partner of the General Partner, shall purchase such unsold Units or
portion thereof and shall obtain an Interest as a Limited Partner equal to the
Interests represented by the unsold Units. Upon termination of the Equity
Sale, the Initial Limited Partner shall withdraw as a Limited Partner effective
as of such date.
(e) In the event that any Additional Limited Partner shall lawfully
rescind his purchase of an Interest, the Interest of said rescinding Additional
Limited Partner shall be reallocated to SI Management Service Corp. effective
as of the date on which the Interest was sold to the rescinding Additional
Limited Partner, and SI Management Service Corp. shall make a Capital
Contribution equal to the sales price of the Units or portion thereof
representing such Interest. The General Partner may use its best efforts to
resell any such Interest on behalf of the Partnership at the sole cost and
expense of the Partnership.
4. The purposes of the Partnership shall be to engage in the
Business and, directly or indirectly, through one or more subsidiaries, to own,
operate, manage, finance, mortgage, sell and lease or otherwise dispose of the
Business or any part thereof. In furtherance of the purposes of the
Partnership, the Partnership shall have the power to do any and all other
things whatsoever necessary or desirable in connection with the foregoing or
otherwise contemplated by this Agreement.
CONTRIBUTIONS
5. (a) The Capital Contribution of each Partner signatory to this
Agreement shall be as specified in the Schedule of Partners' Contributions
attached to this counterpart and shall be made at the time he becomes a party
to this Agreement.
(b) No Partner shall be required or obligated to make any further
contribution, except as provided in this Paragraph 5 and subparagraph 3(d) and
3(e) hereof, and except that upon the admission of Limited Partners as a result
of the Equity Sale, the General Partner shall contribute additional capital to
the Partnership so that the General Partner will have contributed an aggregate
of 1% of the Capital Contributions of all Partners.
(c) If a Partner advances any funds to the Partnership in excess of
his Capital Contribution, such advances shall be treated as loans to the
Partnership the rate per annum equal to 1% in excess of the rate announced from
time to time by Chemical Bank, N.A. as its prime or
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reference rate, such rate to change as such prime or reference rate changes
(but in no event more than the applicable maximum legal rate of interest).
Such loans shall be repaid before any Distributions are made to any of the
Partners pursuant to Paragraph 6, but no such loans shall be repaid to any
General Partner as long as the Partnership is indebted to any Limited Partner
for any such loan. Notwithstanding the foregoing, no Limited Partner shall be
required or obligated to make any such loans, and nothing in this subparagraph
5(c) shall prevent a Partner or an affiliate or affiliates of any Partner, with
the consent of the General Partners, from making loans to the Partnership
bearing interest in excess of the rate set forth above.
(d) The General Partner is hereby authorized to complete or cause to
be completed any items omitted from this Agreement, or the Schedules or
Exhibits annexed or relating hereto, to reflect such omitted items, including,
without limitation, the Capital Contribution and Interest and other information
called for by the Schedule of Partners' Contributions attached to this
counterpart, and to modify or correct any such Schedule or Exhibit or cause the
same to be modified or corrected. Such completion, modification or correction
may be made from time to time as and when the General Partner considers it
appropriate in order to reflect the Agreement of the parties or the Capital
Contributions made by, subscribed for or agreed to by the Partners. From time
to time the General Partner may make or cause to be made a composite Schedule
of Partners' Contributions and Interests based on the then current Capital
Contributions, Interests and other information relating to the Partners, and
such composite Schedule of Partners' Contributions and Interests shall be
conclusive as to the Capital Contributions and Interest of each Partner absent
manifest error.
(e) (i) The General Partner shall maintain a capital account (the
"CAPITAL ACCOUNT") for each Partner.
(ii) Each Partner's Capital Account shall be credited with all
Capital Contributions of such Partner to the Partnership and such
Partner's allocable share of all Partnership profits, and shall be
charged with all Distributions to such Partner and such Partner's
allocable share of all Partnership losses.
(iii) The foregoing provisions of this paragraph 5(e) are
intended to comply with Treasury Regulation Section 1.704-1, and shall
be interpreted and applied in a manner consistent with such Regulation.
DISTRIBUTIONS AND ALLOCATIONS
6. (a) (i)(A) Except as provided in clause (B), below, prior to
the admission of the last Additional Limited Partner pursuant to
the Equity Sale, for all purposes including, without limitation,
federal, state and local income tax purposes, income, gains,
losses, deductions and credits shall be allocated 1% to the
General Partner and 99% to the Initial Limited Partner.
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(B) The Interests in the Partnership sold pursuant to
the Equity Sale shall reduce the Interest held by the Initial
Limited Partner.
(ii) Notwithstanding any provision in this Agreement to the
contrary, and notwithstanding the actual Capital Contribution of the
Initial Limited Partner, until the date as of which purchasers of all
Units are admitted to the Partnership as Limited Partners, the Initial
Limited Partner shall be entitled to the aggregate percentage of all
allocations and Distributions to be allocated or made to the Limited
Partners pursuant to this Agreement not attributable to the Interests of
purchasers of Units who have been admitted to the Partnership as Limited
Partners prior to such date.
(iii) The allocation to the Initial Limited Partner and to the
General Partner as specified in this subparagraph is subject to
adjustment pursuant to subparagraphs 7(a)(i), 7(c)(viii) and (ix),
7(g)(ii) and 10(b)(iii) and Paragraph 9.
(b) The terms "PROFITS" and "LOSSES" shall mean, respectively, the
net profits and the net losses of the Partnership for Federal income tax
purposes, as determined by the General Partner and approved by the
Partnership's accountants.
(c) (i) Profits of the Partnership (other than gain recognized by
the Partnership from the sale or other disposition of all or
substantially all of its assets not in connection with establishment of
a Corporation [a "SALE OF BUSINESS"], or upon liquidation and
termination of the Partnership) shall be allocated among the Partners in
the following manner:
(A) Prior to the admission of the last Additional
Limited Partner pursuant to the Equity Sale, in the same
proportions as cash or other property is distributable in
accordance with the provisions of clause (ii) of subparagraph
6(f);
(B) Thereafter until the aggregate amount of Profits
allocated to the Partners pursuant to this clause equals the
aggregate amount of cash or other property distributed to the
Partners pursuant to the provisions of clause (iii)(A) of
subparagraph 6(f) in the same proportions as cash or other
property is distributable in accordance with the provisions of
clause (iii)(A) of subparagraph 6(f); and
(C) Thereafter, in the same proportions as cash or
other property is distributable in accordance with the provisions
of clause (iii)(B) of subparagraph 6(f).
(ii) Losses of the Partnership shall be allocated among and
charged to the Capital Accounts in the following manner and order of
priority:
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(A) First, to the Partners, pro rata, to the extent of
and in proportion to any positive difference obtained by
subtracting from their Capital Contributions the sum of (x) prior
Losses allocated to such Partners in excess of Profits credited
to such Partners pursuant to clause (i) of this subparagraph 6(c)
and (y) Distributions made to such Partners pursuant to clause
(iii)(A) of subparagraph 6(f) hereof;
(B) Second, pro rata to the Partners to the extent of,
and in proportion to, their respective Capital Accounts; and
(C) Third, to the Partners in the same proportions as
Profits are allocated in accordance with clause (i) of this
subparagraph 6(c).
(d) The "PRIORITY RETURN" shall be deemed to occur at such time as
the amount distributed to the Partners shall have equaled the aggregate Capital
Contributions of the Partners, plus a return of 6% per annum, compounded
annually on the amount from time to time equal to the excess of the aggregate
Capital Contributions of the Partners over the aggregate Distributions to the
Partners.
(e) (i) Except as set forth in clause (ii) of this subparagraph
6(e), for purposes of Subchapter K of the Code, the distributive shares
of the Partners in each item of Partnership taxable income and gains or
losses, deductions and credits for any fiscal year of the Partnership
shall be in the same proportions as their respective shares of Profits
allocated under subparagraph 6(c) hereof, in fiscal years in which the
Partnership has Profits and the distributive share of such items for any
fiscal year of the Partnership will be in the same proportions as their
respective shares of Losses allocated under subparagraph 6(c) hereof in
fiscal years in which the Partnership has Losses.
(ii) Any gain after the Equity Sale (including ordinary income)
recognized by the Partnership upon a Sale of Business or upon the
liquidation and termination of the Partnership shall be credited to the
Partners (after giving effect to all charges and credits thereto for the
then current fiscal year of the Partnership pursuant to subparagraphs
6(c), 6(e)(i) and 6(f) and all prior charges, credits and Distributions,
if any, during such fiscal year of the Partnership pursuant to this
clause (ii) of subparagraph 6(e), but not including any charges, credits
or Distributions pursuant to this clause (ii) of subparagraph 6(e) with
respect to the transaction pursuant to which the gain is then being
allocated) and distributions shall be made as specifically set forth in
this subparagraph 6(e)(ii) as follows:
If the Capital Account of a Partner or Partners, including the Capital
Account of a General Partner, has a debit balance, such gain (which
shall first be the long-term capital gain portion thereof to the extent
possible) shall be first credited to any such Partner or Partners whose
Capital Account has a debit balance in the ratio of such respective
debit balances, until the balance of each such Partner's Capital Account
is equal to zero; then there shall be distributed to the Partners the
amount of the balance in their Capital Accounts until the
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Priority Return shall have occurred; then, until the Priority Return
shall have occurred, there shall be allocated to the Partners in the
ratio of 99% to the Limited Partners (in accordance with the ratio of
their Capital Contributions) and 1% to the General Partner an amount of
long-term capital gain which, if the amount so allocated to the Limited
Partners were thereupon distributed to them, would cause the Priority
Return to have occurred, and such amount of long-term capital gain so
allocated to the Partners shall be distributed. In the event that the
amount of long-term capital gain so distributed is insufficient to cause
the Priority Return to have occurred, there shall be allocated to
Partners in the ratio of 99% to the Limited Partners (in accordance with
the ratio of their Capital Contributions) and 1% to the General Partner
an amount of short-term capital gain and ordinary income attributable to
such sale (including the aggregate amount which would be treated as
ordinary income under Section 1245 or Section 1250 of the Code) which,
if the amount so allocated to the Limited Partners were distributed to
them, would cause the Priority Return to have occurred, and such amount
of short-term capital gain and ordinary income so allocated to the
Partners shall be distributed to them. In the event that the Priority
Return shall have been received prior to such sale, or shall have been
received as a result of the allocations and distributions of the
proceeds of such sale as set forth in the preceding two sentences, the
balance, if any, of the gain shall be allocated so that first, the
balance, if any, of the long-term capital gain shall be allocated to the
least extent necessary to cause the aggregate Capital Accounts of the
General Partner and of the Limited Partners to be in a ratio to each
other of 30% for the General Partner and 70% for the Limited Partners
(in accordance with the ratio of their Capital Contributions); second,
the balance, if any, of the long-term capital gain shall be allocated
30% to the General Partner and 70% to the Limited Partners (in
accordance with the ratio of their Capital Contributions); and, third,
the balance, if any, of the gain which is short-term capital gain and
ordinary income shall be allocated between the General Partner and the
Limited Partners in the same ratio as the aggregate gain has been
allocated without giving effect to this clause third.
(f) (i) In addition to the Distributions specifically required to
be made pursuant to subparagraph 6(e)(ii) hereof, from time to time, the
General Partner shall determine the amount of cash or other property,
including, without limitation, securities of a Corporation (as defined
in subparagraph 7(c)(xii)), available for distribution to the Partners,
taking into consideration the current financial condition of the
Partnership, anticipated operating income and expenses, interest on and
amortization of any debt of the Partnership, restrictions, if any,
imposed on the Partnership from time to time, by its lenders, and those
of its subsidiaries and affiliates, capital expenditures, working
capital needs and such reserves as shall be deemed necessary and prudent
by the General Partner. The General Partner shall, consistent with the
foregoing and the restrictions, if any, imposed on the Partnership, from
time to time, by its lenders, and those of its subsidiaries and
affiliates, seek to maximize the amount of cash or other property
available for distribution, provided that nothing in this subparagraph
6(f) shall be deemed to require the General Partner to sell the Business
at any time.
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(ii) Prior to the Equity Sale distributions shall be made in
accordance with Capital Accounts after the application of subparagraph
6(a)(i)(A) hereof.
(iii) After the Equity Sale, and until immediately prior to the
sale referred to in subparagraph 6(e)(ii) hereof, after such
determination in clause 6(f)(i) has been made, Distributions shall be
made (A) until the Priority Return shall have occurred as provided in
subparagraph 6(d), 1% to the General Partner and 99% to the Limited
Partners (in accordance with the ratio of their Capital Contributions);
and (B) after the Priority Return shall have occurred as provided in
subparagraph 6(d), 30% in the aggregate to the General Partners and in
the aggregate 70% to the Limited Partner (in accordance with the ratio
of their Capital Contributions).
(iv) If property other than cash, including securities of a
Corporation, is distributed to the Partners, then, for all purposes of
this Agreement, including, without limitation, for the purpose of
charging the Capital Accounts and determining whether the Priority
Return has occurred, it shall be valued at its fair value as determined
by the General Partner. The General Partner shall notify the Partners
of the fair value of any such property at the time Distribution thereof
is made.
(v) After the Sale of Business or liquidation referred to in
subparagraph 6(e)(ii) hereof, distributions shall be made pro rata in
accordance with Capital Accounts (after taking into account the
allocations in such subparagraph and subparagraph 6(c)(ii)).
(g) Notwithstanding the provisions of this Paragraph 6, if the
General Partner determines to cause the Partnership to engage in a transaction
pursuant to which a Corporation (as defined in clause (xii) of subparagraph
7(c)) would make a public offering of its equity securities ("PUBLIC
OFFERING"), the General Partner shall have the right to do all of the
following:
(i) in good faith, estimate the anticipated date of the Public
Offering (the "ESTIMATED PUBLIC OFFERING DATE") and the results of the
operations of the Business through the Estimated Public Offering Date,
including estimates of the amount of cash which will be available for
Distribution to the Partners during such period ("ESTIMATED CASH FLOW
DISTRIBUTION");
(ii) in good faith, estimate the cash, the value of other
property, and the amount of securities (both equity and debt) the
Partnership holds or would receive from the Corporation and the cash the
Partnership would receive as a result of the Public Offering (which may
include cash to be realized by the Corporation to be used to repay debt
securities delivered to the Partnership in connection with the
transaction and the net proceeds of the Corporation's equity securities,
if any, to be sold by the Partnership as part of the Public Offering);
and
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(iii) determine the amount of the Distributions to the Partners
after the Estimated Public Offering Date, i.e., above the Estimated Cash
Flow Distribution, which would cause the Priority Return to occur (the
"ESTIMATED PRIORITY RETURN DISTRIBUTION").
For purposes of subparagraphs 6(d) and 6(f), the Priority Return shall
be deemed to have occurred as of the Estimated Public Offering Date if, by the
60th day following the closing date of the sale of the Corporation's securities
offered in the Public Offering, the Partnership has made cash Distributions to
the Partners equal to the sum of the Estimated Cash Flow Distribution and the
Estimated Priority Return Distribution (the "FINAL PRIORITY RETURN
DISTRIBUTIONS"), which Distributions shall be made to the Partners in
accordance with clause (iii)(A) of subparagraph 6(f). Any other Distributions,
whether in cash or property, including securities received from the
Corporation, shall be made in accordance with clause (iii)(B) of subparagraph
6(f) at such time as the General Partner deems appropriate, even if such
Distributions are made prior to the actual receipt by the Partners of all or a
portion of the Final Priority Return Distributions.
The General Partner shall have the right to revise the estimates
referred to in clauses (i), (ii) and (iii) of this subparagraph 6(g) to account
for any changes which become known to the General Partner in the assumptions
made by the General Partner upon which such estimates were based, including,
without limitation, delays in the commencement, or the closing date of the sale
of the Corporation's securities offered in the Public Offering, or changes in
the anticipated public offering price of the Corporation's securities. Unless,
for any reason, the General Partner determines to abandon a proposed Public
Offering, the estimates made by the General Partner pursuant to clauses (i),
(ii) and (iii) of this subparagraph 6(g), and the computations based thereon,
shall be binding on the Partners for the purposes of this subparagraph 6(g) and
subparagraphs 6(d) and 6(f), notwithstanding that the actual amounts of the
items estimated differ in amount from such estimates.
(h) Any item of income, gain, loss, deduction, or credit of the
Partnership arising during any calendar month in which a purchaser of an
Interest is admitted to the Partnership shall be allocated and credited to the
Capital Account of such Limited Partner by treating such Limited Partner in
accordance with subparagraphs 3(c) hereof as having made his Capital
Contribution on the first day of the calendar month in which such Limited
partner is admitted to the Partnership.
(i) Any other provision of this Agreement notwithstanding, the
General Partner shall at all times be entitled to not less than an aggregate of
1% of each item of income, gain, loss, deduction and credit.
(j) The General Partner is also authorized to make such other and
further special allocations as are permitted by law and are necessary, in its
opinion, to insure that the allocation of Profits and Losses for tax purposes
have substantial economic effect.
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GENERAL PARTNER
POWERS AND DUTIES
7. (a) Except as set forth in this Section 7(a), each General
Partner shall have the power and right to:
(i) transfer all or part of his Interest by will or intestacy
if the remaining General Partner(s), if any, elects to continue the
business of the Partnership pursuant to subparagraph 10(b); upon
satisfaction of the conditions in subparagraphs 10(b) and (c), the
transferee shall be admitted as a Limited Partner;
(ii) engage in or possess any interest in other business
ventures of every nature and description, independently or with others,
including, but not limited to, those in competition with the operations
of the Partnership, and neither the Partnership nor any other Partner
shall, as a result of his interest in the Partnership, have any rights
in or to such business venture or the income or profits derived
therefrom.
(b) The Partnership shall be managed by the General Partner, and the
conduct of the Partnership's business shall be controlled and conducted solely
by the General Partner subject to and in accordance with this Agreement. The
General Partner shall devote such time to the affairs of the Partnership as is
reasonably necessary for the performance by the General Partner of its duties
(including its fiduciary duty to the Limited Partners).
(c) In addition to and not in limitation of any rights and powers
conferred by law or other provisions of this Agreement, and except as limited,
restricted or prohibited by the express provisions of this Agreement, each
General Partner shall have and may exercise on behalf of the Partnership all
powers and rights necessary, proper, convenient or advisable to effectuate and
carry out the purposes, business and objectives of the Partnership, subject to
subparagraph 7(e). Such powers and rights, which shall be exclusive to the
General Partner, shall include, without limitation, the power and right to:
(i) manage the Business, including through persons employed by
the General Partner for such purpose;
(ii) execute such documents as it may deem necessary or
desirable in connection with the management of the Business or for other
Partnership purposes;
(iii) acquire, sell, assign, finance, convey, lease, mortgage or
otherwise dispose of all or any part of the Business;
(iv) borrow money;
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(v) perform or cause to be performed all of the Partnership's
obligations under any Agreement to which the Partnership is a party or
any obligations of the Partnership or otherwise in respect of any
indebtedness secured in whole or in part by, or by lien on, or security
interest in, any portion of the Business and/or other property of the
Partnership;
(vi) employ, engage, retain or deal with any persons, firms or
corporations to act as managing agents, brokers, accountants or lawyers
or in such other capacity as the General Partner may deem necessary or
desirable, provided the compensation for such services is reasonable.
The fact that a General Partner or an employee or affiliate of a General
Partner or a Limited Partner is employed by, or is directly or
indirectly affiliated or connected with, any such person, firm or
corporation shall not prohibit the General Partner or the Partnership
from employing or otherwise dealing with such person, firm or
corporation;
(vii) sign checks on Partnership bank accounts and execute
and/or accept any instrument or agreement incident to the Partnership
business and in furtherance of its purposes. Any such instrument or
agreement so executed or accepted for the Partnership by a General
Partner in its name shall be deemed executed and accepted on behalf of
the Partnership by such General Partner;
(viii) admit additional Limited Partners;
(ix) admit one or more additional General Partners. In the
event of the admission to the Partnership of additional General
Partners, and except as otherwise expressly provided in this Agreement,
the aggregate share of income, gains, losses, deductions and credits and
of Distributions of the Partnership which are allocable to the General
Partners pursuant to this Agreement shall, for so long as there is more
than one General Partner, be allocated among the General Partners in
such manner as the General Partners shall have agreed;
(x) xxx, defend, compromise, and settle lawsuits in the name
of or on behalf of the Partnership;
(xi) act as the Partnership's "tax matters partner," as defined
in Section 6231(a)(7) of the Code, file tax returns, represent the
Partnership in connection with all examinations of the Partnership's
affairs by tax authorities, including, without limitation, resulting
administrative and judicial proceedings, and make such elections under
the Code, including, without limitation, adjustments pursuant to Section
754 of the Code, as it shall determine to be in the best interest of the
Partnership (and, in such connection, each Limited Partner agrees to
cooperate with the tax matters partner and to do all things reasonably
requested by the tax matters partners, including, without limitation,
refraining from taking action, if so requested); provided, however, that
so long
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as SI Management L.P. is a General Partner, it shall act as the "tax
matters partner" of the Partnership;
(xii) effect a Public Offering of securities of a corporation (a
"Corporation") owned in whole or in part, directly or indirectly, and
controlled by, the Partnership (and to which any of the assets of the
Partnership or another Corporation may have been transferred in
anticipation of such Public Offering or otherwise); cause any
Corporation to make, from time to time, one or more public offerings of
its securities in addition to the offering specified above; and cause
the Partnership to sell all or any portion of any Corporation's
securities from time to time owned by the Partnership in any of such
public offerings, provided, however, the General Partner shall not
permit any Partner to sell all or a portion of the Corporation's
securities in any such public offering without affording a similar
opportunity to all Partners pro rata in accordance with the relative
amounts of the Corporation's securities owned by the Partners;
(xiii) subject to subparagraph 7(j), sell or otherwise transfer
any or all of the assets of the Partnership or any Corporation,
including, without limitation, by merger or dissolution of any such
Corporation;
(xiv) appoint persons to act as officers of the Partnership and
delegate to such persons such authority to act on behalf of the
Partnership and such duties and functions as the General Partner shall
determine, including such duties as would normally be delegated to
officers of a corporation holding similar offices;
(xv) amend the provisions of Paragraph 6 of this Agreement if
the Partnership is advised at any time by the Partnership's accountants
or attorneys that the allocations of income, gains, losses, deductions,
credits and distributions among Partners in accordance with Paragraph 6
hereof are unlikely to be respected for Federal income tax purposes
either because of the promulgation of Treasury Regulations under Section
704 of the Code or other developments in the law, but only to the
minimum extent necessary in accordance with the advice of such
accountants or attorneys so as to maintain to the maximum extent
possible the method of allocations and distributions provided in this
Agreement. The General Partner shall be entitled to rely upon the
advice of the Partnership's accountants or attorneys with respect to the
matter referred to in this subparagraph 7(c)(xv) and shall incur no
liability in connection with any such amendments of allocations or
Distributions made in reliance thereon, and no such amendments or
allocations or Distributions shall give rise to any claim or cause of
action by any Limited Partner;
(xvi) amend the provisions of this Agreement to delete or add
any provisions required to be so deleted or added by a State "Blue Sky"
commissioner or similar such official; provided, however, that no
amendment shall be adopted pursuant to this subparagraph 7(c)(xvi)
unless the adoption thereof (A) is consistent with the remainder of
subparagraph 7(c) hereof, (B) does not affect the method of allocation
of cash distributions
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or the method of allocation of Profits or Losses provided in Paragraph 6
hereof, except to the extent such amendment is permitted by subparagraph
7(c)(xv), (C) is for the benefit of, and not adverse to, the interests
of the Limited Partners, and (D) does not affect the limited liability
of the Limited Partners or the status of the Partnership as a
partnership for Federal income tax purposes;
(xvii) without limiting the generality of any other power granted
to the General Partner pursuant to this Agreement, to cause cash funds
of the Partnership, the Company or any Affiliate to be deposited in non-
interest bearing accounts at banks with which Integrated Resources, Inc.
and/or its Affiliate maintain banking relations, including banks from
which Integrated Resources, Inc., and/or its Affiliates borrow funds and
with which informal arrangements exist pursuant to which Integrated
Resources, Inc., and/or its Affiliates maintain compensating balances.
Each Partner consents to the maintenance of such banking arrangements
and to the realization by Integrated Resources, Inc. and/or its
Affiliates of any benefits resulting from treatment by such banks of the
Partnership's, the Company's or such Affiliate's funds deposited in such
accounts as being applicable towards the informal compensating balance
arrangements of Integrated Resources, Inc. and/or its Affiliates;
(xviii) without limiting the generality of any other power
granted to the General Partner pursuant to this Agreement, to cause cash
funds of the Partnership, the Company or any Affiliate to be utilized to
purchase shares in money market funds sponsored by Integrated Resources,
Inc. and/or its Affiliates, on the same terms and conditions which third
parties purchase shares of such money market funds. Each Partner
acknowledges that Integrated Resources, Inc. and/or its Affiliates will
earn its customary fees as sponsor of such money market funds and that
it is possible that such funds may have a lower rate of return than
other money market funds. Each Partner consents to such arrangements
and to the realization by Integrated Resources, Inc. and/or its
Affiliates of the benefits resulting therefrom;
(xix) appoint one or more attorneys-in-fact authorized pursuant
to general or limited powers of attorney, as the General Partner shall
deem appropriate, to act on behalf of the Partnership with the same
authority as may be exercised by the General Partner thereunder; and
(xx) perform any other act deemed by the General Partner to be
necessary or appropriate to the business of the Partnership.
(d) The General Partner shall, at all times during the term of the
Partnership, accurately record or cause to be recorded each transaction of the
Partnership, including all transactions relating to the operation of the
Business, and keep or cause to be kept full and accurate books of the
Partnership. Such books, and a certified copy of the Certificate and
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amendments thereto, shall be open for reasonable inspection and examination by
the Limited Partners or their duly authorized representatives.
(e) The General Partner shall be responsible for the management of
the affairs of the Partnership, operation of the business of the Partnership,
and performance of the duties described in this Paragraph 7.
(f) (i) Subject to the limitations set forth in clauses (ii)
through (v) of this subparagraph 7(f), all expenses incurred by the
Partnership shall be paid by the Partnership. A General Partner shall
be entitled to reimbursement from the Partnership for reasonable,
documented, out-of-pocket expenses incurred by it on behalf of the
Partnership; provided that expenses incurred by a General Partner in the
ordinary course of its business as a General Partner of the Partnership,
including expenses in respect of the employees of any General Partner or
in respect of the other normal overhead expenses of any General Partner,
shall not be reimbursed.
(ii) The General Partner and its Affiliates (as defined in
subparagraph 7(f)(v) below) shall not be liable, responsible or
accountable in damages or otherwise to the Partnership, any Corporation
or any Partner, and the General Partner and its Affiliates shall be
indemnified by the Partnership against any losses, judgments,
liabilities, expenses and amounts paid in settlement, sustained by it in
connection with the Partnership or any Corporation, provided that the
General Partner or its Affiliates in good faith determine that such
course of conduct was in the best interest of the Partnership and that
such course of conduct did not constitute negligence or misconduct on
its or their part. Notwithstanding the foregoing, the General Partner,
its Affiliates and any person acting as a broker-dealer with respect to
the sale of Interests shall not be indemnified by the Partnership or any
Limited Partner for any losses, liabilities or expenses arising under
federal or state securities laws unless: (1) there has been a successful
adjudication on the merits of each count involving alleged securities
law violations as to the particular indemnitee, or (2) such claims have
been dismissed with prejudice on the merits by a court of competent
jurisdiction as to the particular indemnitee or (3) a court of competent
jurisdiction either approves a settlement of the claims against a
particular indemnitee and finds that indemnification of the settlement
and related costs should be made or approves indemnification of
litigation costs if a successful defense is made. In any claim for
indemnification for federal or state securities law violations with
respect to the sale of Interests, the party seeking indemnification
shall apprise the court of the position of the Securities and Exchange
Commission and any applicable state securities regulatory authority,
including, without limitation, the Massachusetts Securities Division,
with respect to the issue of indemnification for securities law
violations.
(iii) In the event that any action, suit or proceeding is
instituted against the Partnership, any Corporation or any General
Partner or any of their Affiliates with respect to the business, assets,
liabilities or activities of the Partnership or any such Corporation,
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the Partnership and each such Corporation, General Partner or Affiliate
may obtain separate legal counsel and other expert assistance to defend
or assist in defending any such action, suit or proceeding. Each such
General Partner or Affiliate shall have advanced to it by the
Partnership, at its request, funds for payment of all expenses and costs
reasonably incurred in connection with the defense of any action, suit
or proceeding only if (1) such action, suit or proceeding relates to the
performance of duties or services by the General Partner or Affiliate
thereof of the behalf of the Partnership or any Corporation; and (2)
such action, suit or proceeding is initiated by a third party who is not
a Limited Partner of the Partnership; and (3) such General Partner or
Affiliate, as the case may be, undertakes to repay the advanced funds to
the Partnership, without interest, if it is determined that such General
Partner or Affiliate is not entitled to indemnification under this
Paragraph. No General Partner or Affiliate shall be advanced funds from
the Partnership for legal expenses and other related costs incurred as a
result of any legal action, suit or proceeding initiated by a Limited
Partner of the Partnership against such General Partner or Affiliate.
(iv) The Partnership shall not incur the cost of that portion
of any insurance, other than public liability insurance, which insures
any party against any liability the indemnification of which is not
permitted under this Paragraph.
(v) "AFFILIATE" for purposes of this subparagraph 7(f) only
shall mean any person performing services on behalf of the Partnership
who, (w) directly or indirectly controls, is controlled by or is under
common control with a General Partner; or (x) owns or controls ten
percent (10%) or more of the outstanding voting securities of a General
Partner; or (y) is an officer, director, partner or trustee of a General
Partner; or (z) if a General Partner is an officer, director, partner or
trustee, is any company for which such General Partner acts in any such
capacity.
(g) (i) Subject to subparagraph 12(d) hereof, if at any time after
the admission of Limited Partners pursuant to the Equity Sale, Limited
Partners whose Interests in the aggregate exceed fifty percent (50%) of
the Interests of all Limited Partners determine in their discretion that
a General Partner is not fully performing its powers, duties and
obligations in the best interest of the Partnership, or that it is
otherwise in the best interest of the Partnership to do so, they may, at
a meeting convened in accordance with subparagraph 12(d) hereof, remove
such General Partner from such office, and, in the event the removed
General Partner is the sole General Partner, the Limited Partners
holding 100% of the Interests of the Limited Partners may designate a
successor general partner. In the event of such removal, (A) such
General Partner shall cease to function as such but shall continue to be
entitled to receive Distributions pursuant to clause (iv) of
subparagraph 6(f) after the Partners have received the Priority Return
and clause (vi) of subparagraph 6(f), and (B) the Partners shall be
required to transfer to the successor general partner no less than a 1%
Interest in the Partnership for the value of such Interest as determined
in accordance with Paragraph 12(j) hereof, which Interest shall be
allocated
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from the removed General Partner and the Limited Partners (and from each
of the Limited Partners pro rata based on their respective Capital
Contributions), respectively, as follows: prior to the receipt by the
Partners of the Priority Return, 1% of such interest from the removed
General Partner and 99% of such interest from the Limited Partners, and,
after the receipt by the Partners of the Priority Return, 30% of such
interest from the removed General Partner and 70% of such interest from
the Limited Partners.
(ii) In the event that the General Partner is terminated
pursuant to this subparagraph 7(g) and retains any interest in the
Partnership, its interest shall automatically be converted to the
interest of a Special Limited Partner, which shall be entitled to
distributions pursuant to subparagraph 6(f) hereof to the extent of said
interest, and no more, provided that it shall at a minimum be entitled
to the distribution provided for in clause (iii) of subparagraph 6(f)
and shall have no right otherwise to participate in distributions to the
Limited Partners pursuant hereto or to participate in management of the
affairs of the Partnership or to vote with the other Limited Partners,
and the Special Limited Partner's interest shall be disregarded in
determining whether action has been taken by the Limited Partners.
(h) Upon the occurrence of any event described in subparagraph
11(a)(iv) at a time when there is more than one General Partner, the remaining
General Partner or General Partners shall have sixty (60) days after the
occurrence of such event to elect to continue the business of the Partnership
(such election requiring the unanimous consent of the remaining General
Partners), during which period the Partnership shall not be dissolved. If the
remaining General Partner or General Partners elect to continue the business of
the Partnership, the Partnership shall be continued and the following
provisions shall apply:
(i) In the event of the bankruptcy or insolvency of a General
Partner which is not discharged or vacated within (90) days from the
date thereof, or the dissolution of a General Partner, the remaining
General Partner or General Partners shall succeed pro rata, in
proportion to their respective proportionate Interests, to the Interest
of the bankrupt, insolvent or dissolved General Partner and the latter
shall not be entitled to any compensation for its Interest.
(ii) In the event of the retirement or resignation of a General
Partner, unless such event shall occur as the result of the Transfer of
the Interest of such General Partner in accordance with the provisions
of this Agreement, the remaining General Partner or General Partners so
electing to continue the business of the Partnership shall succeed pro
rata, in proportion to their respective Interests, to the Interest of
the retiring or resigning General Partner, and the latter shall not be
entitled to any compensation for its Interest.
(iii) In the event of the death of a General Partner, the
provisions of subparagraph 7(a)(i) shall apply. In the event of the
insanity of a General Partner, the
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legal representative of the insane General Partner shall be considered
the transferee of the insane General Partner by intestacy, and the
provisions of subparagraph 7(a)(i) shall apply.
(i) Subparagraph 7(h) hereof shall not apply to matters as to which
subparagraph 7(g) specifically applies.
(j) Notwithstanding the general grant of authority to the General
Partner in subparagraph 7(c), subject to subparagraph 12(d) hereof, after the
Equity Sale, the General Partner, without the consent, approval or ratification
of two-thirds in Interest of the Limited Partners, may not cause the
Partnership or a Corporation, as the case may be, to sell, exchange, mortgage,
pledge, transfer, finance or refinance all or substantially all of the assets
of the Partnership or such Corporation, as the case may be, other than in the
ordinary course of the business of the Partnership or such Corporation, as the
case may be, or in connection with the establishment of a Corporation wholly-
owned, directly or indirectly, by the Partnership, or to sell additional
Interests in the Partnership, unless the General Partner shall have given the
Limited Partners 30 days notice of its intention to enter into such a sale,
exchange, mortgage, pledge, transfer, financing or refinancing, or sale of
Interests to persons who, upon purchase, would become limited partners and the
Limited Partners shall not have obtained the opinion of counsel described in
subparagraph 12(d). In the event of any sale of such additional Interests,
whether or not consent of the Limited Partners is obtained or is not required,
the General Partner shall be required to offer to sell such interests to the
Limited Partners on a pro rata basis prior to any offer to persons who are not
Limited Partners.
LIMITED PARTNERS
RESTRICTIONS AND LIMITATIONS
8. (a) No Limited Partner shall take part in the management or
control of the business of the Partnership. Limited Partners shall have no
rights other than those provided for herein or granted by law where not
inconsistent with a valid provisions hereof.
(b) In no event shall any Limited Partner be liable to pay for any
loss beyond the amount of his Capital Contribution, nor shall he be personally
liable for any debts of the partnership. Each Limited Partner understands,
however, that, to the extent required by applicable partnership law, if he
receives the return in whole or in part of his Capital Contribution, he may be
liable to the Partnership for any sum, not in excess of the amount so returned
with interest, necessary to discharge the Partnership's liabilities to all
creditors who extended credit or whose claims arose before such return.
(c) No Limited Partner shall have (i) the right to withdraw or reduce
his Capital Contribution except as provided in this Agreement or (ii) except
pursuant to subparagraph 5(c), priority over any other Limited Partner either
as to return of capital or as to income, gains, losses, deductions or credits
of the Partnership.
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9. (a) A Limited Partner may not Transfer his Interest in the
Partnership or any part thereof except as permitted in this Agreement, and any
act in violation of this Paragraph 9 shall not be binding upon or recognized by
the Partnership regardless of whether any General Partner shall have knowledge
thereof.
(b) Except as hereinafter provided in subparagraph 9(d), no Transfer
by a Limited Partner of all or any part of his Interest or of his right to
receive Distributions when made shall be effective, nor shall any proposed
transferee of all or any part of his Interest be admitted to the Partnership as
a Limited Partner or be entitled to receive Distributions from the Partnership
applicable to the Interest acquired by reason of such Transfer, unless:
(i) the transferor has executed and delivered to the General
Partner an assignment in form satisfactory to the General Partner; and
(ii) the written consent of the General Partner to such
Transfer has been obtained, which consent may be withheld in the
complete discretion of the General Partner.
(c) No consent by the General Partner to any Transfer of all or any
part of a Limited Partner's Interest or to the admission of a proposed
transferee as a Limited Partner in the Partnership shall be effective unless:
(i) the transferee executes and delivers to the General
Partner an undertaking of the transferee to be bound by all the terms
and provisions of this Agreement, and such other instruments as may be
required by law, and, where the transferee is to be admitted as a
Limited Partner, a counterpart of this Agreement;
(ii) the transferee executes and delivers to the General
Partner a confirmation that the proposed transferee is acquiring the
Interest for his own account, for investment only and not with a view
toward the resale or distribution thereof; and
(iii) if requested by the General Partner, the transferee
executes and delivers to the General Partner an undertaking to pay all
reasonable expenses incurred by the Partnership in connection with the
Transfer, including, but not limited to, the cost of preparing, filing
and publishing such amendments to the Certificate as may be required by
law.
(d) Notwithstanding the provisions of subparagraph 9(b), any Limited
Partner may, without obtaining the General Partner's consent, transfer all or
any part of his Interest by will or intestacy; provided, however, that in no
event shall such Transfer be deemed effective to entitle the transferee to be
admitted as a Limited Partner unless and until all the conditions of
subparagraphs 9(b) and (c) are complied with.
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(e) Anything to the contrary contained herein notwithstanding:
(i) No Transfer of an Interest may be made in any 12 month
period by a Limited Partner if such Transfer, when added to all other
Transfers of Interests by Partners which have already taken place in
such period, would represent a Transfer by Partners who have made
Capital Contributions aggregating forty-nine (49%) per cent or more of
the aggregate Capital Contributions of all Partners. This limitation is
herein referred to as the "forty-nine (49%) per cent limitation".
(ii) Subparagraph 9(e)(i) hereof shall not apply to a Transfer
by gift, bequest or inheritance, or to a Transfer to the Partnership in
liquidation of a Partner's Interest pursuant to subparagraph 9(e)(iii),
and, for purposes of the forty-nine (49%) per cent limitation, any such
Transfer shall not be treated as such.
(iii) If, after the forty-nine (49%) per cent limitation is
reached in any 12 month period, a Transfer of an Interest would
otherwise take place by operation of law, or if any Transfer of an
Interest would otherwise take place by operation of law which would
cause a violation of the forty-nine (49%) per cent limitation (but not
including any Transfer referred to in subparagraph 9(e)(ii) hereof),
then, unless the General Partner rejects such Transfer pursuant to
subparagraph 9(e)(iv), said Interest shall be deemed transferred by the
transferor to the Partnership in liquidation of said Interest
immediately prior to the date on which such Transfer would otherwise
have taken place for a price equal to the fair market value of said
Interest on the date on which such Transfer would otherwise have taken
place. The price shall be paid within ninety (90) days after the date
on which such Transfer is deemed to have occurred. If the General
Partner and the transferor do not agree upon the fair market value of
the Interest, the liquidation price shall be the appraisal value
thereof, determined in accordance with Paragraph 11. The liquidation
price shall be paid in cash within thirty (30) days after such
determination.
(iv) Notwithstanding the provisions of subparagraph 9(e)(iii),
the General Partner shall have 90 days after receipt of notice or
obtaining actual knowledge of a Transfer described in subparagraph
9(e)(iii) to determine, in its discretion, whether to reject any such
Transfer to the Partnership in liquidation of such Interest. The
General Partner shall notify the transferring Partner of its
determination within said 90 day period.
(f) Each Limited Partner hereby indemnifies the Partnership and each
Partner against any and all loss, damage or expense (including, without
limitation, tax liabilities or loss of tax benefits) arising, directly or
indirectly, as a result of any Transfer or purported Transfer by that Limited
Partner in violation of any provision contained in this Paragraph 9. Each
Limited Partner also indemnifies and holds harmless the Partnership, the
General Partner, any corporation or entity affiliated with any of the above,
the officers, directors and employees of any of the foregoing and any
professional advisors thereto from and against any and all loss, damage,
liability or expense, including costs and reasonable attorneys' fees, to which
the Partnership or
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any such person may be put or which it may incur by reason of or in connection
with any misrepresentation made by the Limited Partner, any breach of any of
his warranties or his failure to fulfill any of his covenants or agreements
under this Agreement. Moreover, with respect to any action to which the
General Partner is a party, the Partnership shall indemnify and hold harmless
the General Partner, provided its actions were taken in good faith and did not
involve misconduct or negligence.
(g) No Limited Partner shall have the right to bring an action for
partition against the Partnership.
10. (a) The Interest of a Limited Partner shall be deemed offered for
sale to a purchaser designated by the General Partner upon the happening of any
of the following events:
(i) a petition under any bankruptcy, insolvency or
reorganization law or statute having been filed by such Limited Partner
or such Limited Partner having made an assignment for the benefit of
creditors, having admitted in writing his inability to pay his debts as
they mature or having been adjudicated a bankrupt; or
(ii) a petition under any bankruptcy, insolvency or
reorganization law or statute having been filed against such Limited
Partner and not having been dismissed within ninety (90) days from the
date of such filing; or
(iii) a receiver having been appointed to manage such Limited
Partner's property; or
(iv) a creditor of such Limited Partner having attached his
Interest, and such attachment not having been discharged or vacated
within ninety (90) days from the date it became effective.
The General Partner shall have ninety (90) days after receipt of notice
or actual knowledge of the occurrence of any of the foregoing within which to
designate such a purchaser and transmit written notice thereof to such Limited
Partner. If the General Partner does not make such designation within ninety
(90) days, as aforesaid, the offer shall be deemed withdrawn. The purchase
price for such Interest in the case of (i), (ii), (iii) or (iv) above shall be
its appraised value as determined in accordance with Paragraph 12(j). The
purchaser shall tender to the selling Limited Partner the purchase price, in
cash, within ten (10) days after such determination. Upon tender of payment of
the purchase price to the selling Limited Partner, his Interest shall be deemed
transferred to the aforesaid purchaser.
DISSOLUTION
11. (a) Except as otherwise herein provided, the Partnership shall be
dissolved upon the earliest of:
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(i) the expiration of its term as provided in this Agreement;
(ii) the sale or other disposition of all or substantially all
of the assets of the Business (other than to a Corporation);
(iii) a determination by all of the General Partner, concurred
in by the written consent of Limited Partners whose Interests in the
aggregate exceed fifty percent (50%) of the Interests of the Limited
Partners who are then Partners of the Partnership, to dissolve the
Partnership; or
(iv) subject to the provisions of subparagraphs 7(g) and 7(h),
the removal, pursuant to subparagraphs 7(g) or 7(h), retirement, death,
dissolution, insanity or resignation of a General Partner, or the
bankruptcy or insolvency of a General Partner which is not discharged or
vacated within ninety (90) days from the date thereof.
(b) Upon dissolution, all certificates or notices thereof required by
law shall be filed and the Partnership business shall be concluded as
hereinafter provided.
(c) Upon dissolution, unless the business of the Partnership is
continued pursuant to subparagraph 11(e), all property of the Partnership,
including, without limitation, securities held by the Partnership in any
Corporation, to the extent available after payment or making provision for
payment, when due, of any debts of the Partnership, shall be distributed to the
Partners in cash and/or in kind subject to any liabilities of the Partnership,
in accordance with the provisions of subparagraph 6(f). In the event a
Distribution pursuant to this subparagraph is made in kind, the property so
distributed shall be valued at its fair value for the purpose of charging the
Capital Accounts of the Partners and determining whether the Priority Return
has occurred, and, for the purpose of determining gain or loss to be allocated
among the Partners as provided in this Agreement, shall be deemed to have been
sold for cash for its fair value.
(d) The Partnership shall prepare and furnish to each Partner a
statement setting forth the assets and liabilities of the Partnership as of the
date of complete liquidation. Upon complete liquidation of the Partnership
property, the Limited Partners shall cease to be such and the General Partner
shall execute, acknowledge and cause to be filed all certificates necessary to
terminate the Partnership.
(e) Upon the occurrence of any of the events specified in
subparagraph 11(a)(iv), if for any reason the business of the Partnership is
not continued pursuant to subparagraph 7(g) or 7(h), then, and in such event,
the Limited Partners having one hundred (100%) percent of the Interests of the
Limited Partners who are then Partners of the Partnership may elect within one
hundred and twenty (120) days of the occurrence of any such event to form a new
limited partnership on substantially identical terms to the Partnership to
carry on the business of the Partnership and may, by unanimous vote or action,
select a general partner or such new limited partnership. In such event, the
general partner of such new limited partnership shall succeed to
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the Interest of the General Partner or General Partners, in which event the
general partner of such new limited partnership shall pay each General Partner
whom he succeeds an amount equal to the appraised value of the Interest of such
General Partner. The new limited partnership shall succeed to all rights and
assets of the Partnership subject to all liabilities of the Partnership. Each
Limited Partner shall be a limited partner of any limited partnership formed
pursuant to this paragraph and agrees to execute all documents and take such
further action as may be necessary in connection therewith. Until such time as
the new limited partnership agreement is executed by all of the partners, this
Agreement shall continue to be binding on all of the Limited Partners; and upon
execution of a declaration to be bound by the terms of this Agreement and
delivery of such declaration to any Limited Partner, the general partner of
such new limited partnership shall succeed to all the rights and liabilities of
the General Partner under this Agreement.
GENERAL PROVISIONS
12. (a) Each General Partner may also be a Limited Partner in the
Partnership.
(b) Each Limited Partner irrevocably constitutes and appoints each
General Partner acting singly, with full power of substitution, as his true and
lawful attorney in his name, place and xxxxx to make, execute, acknowledge,
deliver, swear to, record, and file:
(i) any counterparts of this Agreement;
(ii) any certificate of limited partnership required by law or
considered necessary or desirable by the General Partner, and all
amendments thereto, including, but not limited to, (A) any amendments
reflecting the admission of a signatory to this Agreement or a
counterpart thereof as a Partner in the Partnership, and (B) any
amendment reflecting any increase in the Capital Contribution of a
Partner;
(iii) all certificates and other instruments necessary to
qualify or continue the qualification of the Partnership in the states
where it may be doing business;
(iv) all assignments, conveyances or other instruments or
documents necessary to effect the dissolution of the Partnership;
(v) all other filings with agencies of the federal government,
of any state or local government, or of any other jurisdiction which the
General Partner considers necessary or desirable for Partnership
purposes;
(vi) any changes in this Agreement as are required in the
judgment of the General Partner in order to comply with the laws of the
United States, including, without limitation, the Code, the State of
Delaware and/or any other state in which the Partnership transacts
business; and
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(vii) any and all documents and instruments relating to the
incorporation of a Corporation or a public offering of the Corporation's
securities, including a Public Offering.
It is expressly intended by each Partner that said power of attorney is coupled
with an interest, that it shall be irrevocable; and that it shall survive the
dissolution, death or incapacity of such Partner or the transfer by such
Partner of the whole or any part of his Interest. The General Partner will not
be required to deliver to any Limited Partner a copy of each document filed
with the Secretary of State of the State of Delaware pursuant to the Act.
(c) All notices or offers required or permitted pursuant to this
Agreement shall be in writing and shall be deemed to be sufficiently given or
served for all purposes when presented personally or sent by registered mail:
(i) to the Partnership or the General Partner at the address
of the General Partner shown on the Schedule of Partners' Contributions
attached hereto, or to such other address or addresses as the General
Partner may hereafter specify by notice to the Partners; or
(ii) to any Limited Partner at its address specified in the
Schedule of Partners' Contributions attached hereto, or as any Limited
Partner may hereafter specify by notice to the Partnership.
(d) Except as provided below, meetings of the Partners may be called
by the General Partner, or by the Limited Partners holding more than ten
percent (10%) of the then outstanding Interest for any matters for which the
Partners may vote as set forth in this Agreement or for a report from the
General Partner on matters pertaining to the Partnership business and
activities. Within seven (7) days after receipt of a written request, either
in person or by registered mail, stating the purpose of the meeting, the
General Partner shall mail to all Partners written notice of the place and
purpose of such meeting to be held on a date not less than fourteen (14) nor
more than twenty-eight (28) days after receipt of said request. Anything in
this Agreement to the contrary notwithstanding, the rights of the Limited
Partners as outlined in this subparagraph 12(d) and in subparagraphs 7(g), 7(h)
and 12(h)(ii) shall not come into existence or be effective in any manner unless
and until (a) the Partnership has received an unqualified opinion of counsel of
recognized standing, which counsel is selected by Limited Partners whose
aggregate Interests exceeds 10% of the aggregate Interests of all of the Limited
Partners ("SPECIAL COUNSEL"), and which opinion is affirmatively approved in
writing by the same percentage in Interest of the Limited Partners as is
required to take the action to which the opinion relates, as to the legality of
such action, and (b) either (i) the Partnership has received an opinion of
Special Counsel, which opinion is affirmatively approved in writing by the same
percentage in Interest of the Limited Partners as is required to take the action
to which the opinion relates, that such action may be effected without
subjecting any Limited Partner to liability as a general partner under the laws
of the State of Delaware or of any other jurisdiction in which the Partnership
is doing business, or (ii) a court
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or courts having appropriate jurisdiction has entered a judgment to the
foregoing effect, and (c) either (i) the Partnership has received an opinion of
Special Counsel, which opinion is affirmatively approved in writing by the same
percentage in Interest of the Limited Partners as is required to take the
action to which the opinion relates, that such action may be effected without
changing the Partnership's status for tax purposes, or (ii) either a court
having appropriate jurisdiction has entered a judgment, or the Internal Revenue
Service has issued a ruling, to the foregoing effect.
(e) An annual statement showing the income, expenses, assets and
liabilities of the Partnership at the end of the fiscal year shall be prepared
by the General Partner and examined by the Partnership's accountants, and the
General Partner shall furnish each Limited Partner with a copy of such
statement not later than the March 31 following the end of such fiscal year.
(f) Unless and until otherwise determined by the General Partner, the
fiscal year of the Partnership shall be the calendar year, except in the year
the Partnership commences or, if the Partnership terminates for any reason, in
the year of termination, in which cases the then current fiscal year shall
either begin on the date of commencement or end on the date of such
termination, as the case may be. The Partnership shall use the method of
accounting directed by the General Partner.
(g) This Agreement shall be governed by and construed in accordance
with the laws of the State of Delaware.
(h) (i) This Agreement constitutes the entire agreement among the
Partners concerning the subject matter hereof. No covenant,
representation or condition not expressed in this Agreement shall affect
or be effective to interpret, change, or restrict the express provisions
of this Agreement. The provisions of this Agreement may not be modified
or waived except by written agreement executed by the parties to be
bound thereby.
(ii) Notwithstanding the foregoing, subject to subparagraph
12(d), this Agreement shall be amended upon the written request of
Limited Partners whose Interests in the aggregate exceed fifty percent
(50%) of the Interests of the Limited Partners who are then Partners in
the Partnership setting forth the terms of the amendment so requested.
Amendments made upon the request of such majority in Interest of the
Limited Partners shall be made in accordance with the terms set forth in
such written request, provided, however, that no such amendment shall in
any way (A) alter, modify or expand the rights, obligations and
liabilities of a General Partner without the consent of all General
Partners, (B) alter or modify the percentage of Distributions or the
Distributions allocated to each Partner, (C) increase the liability or
the required Capital Contribution of any Partner without the consent of
such Partner, (D) diminish the rights, obligations and liabilities of
any Limited Partner without the consent of such Limited Partner, or (E)
amend the specific rights granted to the Limited Partners herein.
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(i) The Partners will execute and deliver such further instruments
and do such further acts and things as may be required to carry out the purpose
and intent of this Agreement.
(j) For the purposes of this Agreement, the appraised value of an
Interest shall be determined by an independent appraiser of recognized
professional standing who is in the regular business of appraising businesses
similar to the Business. Such appraiser shall be selected, at the request of
the General Partner, by any authorized representative of the American
Arbitration Association or any successor organization thereto. The appraisal
made by such appraiser shall be binding and conclusive as between the selling
Partner or Partners and the person purchasing such Interest. The cost of such
appraisal shall be borne equally by the selling and purchasing parties, and by
the latter, among themselves, in proportion to their respective shares, except
that in the case of any transfer resulting from an event described in
subparagraph 10(a), the entire cost of appraisal shall be borne by the selling
Partner.
(k) Except as otherwise herein provided, this Agreement shall be
binding upon and inure to the benefit of the Partners and their successors,
personal representatives, heirs and assigns. None of the provisions of this
Agreement shall be for the benefit of or enforceable by any creditors of the
Partnership.
(l) This Agreement may be executed in any number of counterparts and
each of such counterparts shall for all purposes constitute one Agreement,
binding on all the Partners, notwithstanding that all Partners are not
signatories to the same counterpart. All references herein to this Agreement
are deemed to refer to all such counterparts.
(m) Whenever the singular number is used in this Agreement and when
required by the context, the same shall include the plural, and the masculine
gender shall include the feminine and neuter genders.
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IN WITNESS WHEREOF, this Agreement has been executed by the Partners as
of the day and year first above written.
GENERAL PARTNER:
SI MANAGEMENT L.P.
By: SI Management Service Corp.,
general partner
By
--------------------------------
AGREED AND
CONSENTED TO:
LIMITED PARTNERS:
INITIAL LIMITED PARTNER:
SI MANAGEMENT SI INVESTING CO.
SERVICE CORP.
By By
------------------------------- ----------------------------------
Each person having executed a signature
page attached hereto.
35
SCHEDULE OF PARTNERS' CONTRIBUTIONS
(Before Equity Sale)
Initial Allocation
Capital Contribution of Profits
-------------------- ------------------
GENERAL PARTNER:
NAME: SI Management L.P. $1.00 1%
ADDRESS: c/o Integrated Resources, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
INITIAL LIMITED PARTNER:
NAME: SI Investing Co. $99.00 99%
ADDRESS: c/o Integrated Resources, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
LIMITED PARTNERS:
NAME:
ADDRESS:
NAME:
ADDRESS:
