12.06 Annotated Form of Basic Delaware Limited Partnership Agreement
This is a basic form of Agreement for a Delaware limited partnership. Where
appropriate, it refers to relevant statutory provisions of DRULPA and portions
of the previous text.
AGREEMENT OF LIMITED PARTNERSHIP OF ABC, L.P.THIS AGREEMENT OF LIMITED PARTNERSHIP is made and entered into as of
_____________, 20 ______, by and among ABC, Inc., a ____________ corporation, as
the general partner (the "General Partner"), John H. Smith as the initial
limited partner (the "Initial Limited Partner") and each of the persons or
entities whose names are set forth on Exhibit A attached hereto, as the limited
partners (the "Limited Partners").
WHEREAS, the General Partner and the Initial Limited Partner desire to
document the agreement among the Partners, all upon the terms and conditions
provided herein;
NOW THEREFORE, the parties hereto agree that this Agreement is hereby
entered into and reads in its entirety as follows:
1. Certain Definitions. When used herein, the following terms shall have the
meanings set forth below:
1.1 "Act" means the Delaware Revised Uniform Limited Partnership Act, 6
Del. Code Ann. ¤ 17-101 through ¤ 17-1111, as amended from time to time.
1.2 "Affiliate" means, (a) with respect to a Limited Partner, any entity
or person controlling, controlled by or under common control with such Limited
Partner and (b), with respect to the General Partner, (i) any shareholder of the
General Partner (the "Shareholders"), (ii) any of the heirs, legal
representatives, assigns (by operation of law) or successors of the
Shareholders, or (iii) any entity (other than the General Partner and/or the
Partnership) controlled directly or indirectly by any of the Shareholders. As
used in this definition of Affiliate, the term "control" of any person shall
mean the ownership, directly or indirectly, of securities of such person
possessing more than 50% of the voting power for the election of directors or
the power to designate a majority of the persons constituting the board of
directors of such person or exercising authority similar to that of a corporate
board of directors.
1.3. "Agreement" means this Amended and Restated Agreement of Limited
Partnership and all exhibits hereto, as hereinafter amended from time to time.
1.4 "Assignment" of a Partnership Interest means a transfer which entitles
the transferee to be allocated income, gain, loss, deduction, credit or similar
items and to receive distributions to which the transferor was entitled, to the
extent those items are so assigned and transferred, but which does not entitle
the transferee to become or to have or exercise the rights of a Limited Partner
under this Agreement, including, without limitation, the right to consent,
approve, vote, make any election, or otherwise take any action required or
permitted of or by any Limited Partner hereunder or under the Act. [This
definition of assignment contemplates that the Partnership will permit the
assignment of partnership interests. It also distinguishes between the concept
of assigning attributes of a Partnership Interest and the ability of an assignee
to become a substitute partner. Alternatively, the agreement could prohibit any
and all assignments of partnership interests. See: DRULPA ¤¤ 603, 702, and 704;
¤¤ 12.03[17] and [18] supra.]1.5. "Bankruptcy" means the filing of a voluntary case in bankruptcy under
the federal bankruptcy law, and, in addition, any other status constituting
bankruptcy within the meaning of the Act.
1.6. "Capital Contribution" in respect of any Partner means the total
amount of cash which has been contributed by the Partner to the capital of the
Partnership. [Alternatively, this definition could be expanded to include (1)
property contributed or services rendered or (2) property to be contributed or
services to be rendered. See: DRULPA ¤ 101; ¤ 12.03[14] supra.]
1.7. "Certificate" means the certificate of limited partnership of the
partnership executed and filed pursuant to the Act as such certificate may be
hereafter amended from time to time. [See: DRULPA ¤¤ 201 and 202; ¤ 12.03[2] and
[3] supra.]
1.8. "Code" means the Internal Revenue Code of 1986, as from time to time
amended.
1.9. "General Partner" means ABC, Inc. and any other person or entity
which is admitted to the Partnership as a substituted General Partner [or any
additional General Partner]. [The Agreement could also provide for the admission
of additional General Partners. If so, definition should be expanded to include
additional General Partners.]
1.10. "Investment Memorandum" or "Memorandum" means that private placement
memorandum dated the _____ day of ________, 20______, of which this Agreement is
an exhibit, entitled, "PRIVATE PLACEMENT MEMORANDUM, ABC, L.P., A DELAWARE
LIMITED PARTNERSHIP". [This Agreement assumes that Limited Partner interests
will be offered for sale pursuant to an offering document which complies with
Regulation D of the Securities Act of 1933, as amended.]
1.11. "Limited Partner" means each person or entity whose name is set
forth on Exhibit A hereto, and any other person or entity which is admitted to
the Partnership as a Substituted Limited Partner.
1.12. "Majority In Interest" of the Limited Partners means Limited
Partners holding _____per centum (_____%) of the Partnership Percentages of all
of the Limited Partners. [The percentage could be a bare majority of greater
than 50%, or a super majority, such as 60% or 75%. See: DRULPA ¤ 302; ¤ 12.03[7]
and [8] supra.]
1.13. "Offering Expenses" means fees and expenses incurred in connection
with the offering of Partnership Interests including fees and expenses of
attorneys, accountants and other persons incurred in connection with the
formation of the Partnership and the offering of the Partnership Interests.
1.14. "Operating Cash Flow" for a specified period shall mean the amount,
if any, by which the total gross cash receipts from Operations of the
Partnership exceed the sum of (1) the total cash disbursements of the
Partnership for any such period paid in connection with Operations of the
Partnership, including, without limitation, payments with respect to loans made
to the Partnership by any Partner pursuant to the terms of this Agreement or
under the Act, and (2) any estimated amounts reserved with respect to such
period for contingencies or for operating expenses of the Partnership (to the
extent such operating expenses are permitted under Section 9.1(a) of this
Agreement) and are deemed necessary or appropriate by the General Partner.1.15. "Operating Profit or Loss" for a specified period shall mean,
respectively, the excess of items of income and gain over items of deduction and
loss, or the excess of items of deduction and loss over items of income and
gain, from Operations of the Partnership during such period.
1.16. "Operations" shall mean all activities of the Partnership. [See:
DRULPA ¤ 106; ¤ 12.03[2] supra.]
1.17. "Partner" means the General Partner or any Limited Partner.
1.18. "Partners" mean the General Partner and the Limited Partners.
1.19. "Partnership" means the limited partnership formed pursuant to this
Agreement.
1.20. "Partnership Interest," as to any Partner, means all or any part of
the interests of that Partner in the Partnership, including without limitation
its (i) right to a distributive share of the profits and losses of the
partnership; (ii) right to a distributive share of the assets of the
Partnership; (iii) right, if a limited partner, to consent to certain actions of
the General Partner as set forth in Section 7.3 of this Agreement, and (iv)
right, if the General Partner, to participate in the management of the affairs
of the Partnership.
1.21. "Partnership Percentage" means, in the case of the General Partner,
_____ per centum (_____%), and, in the case of each Limited Partner, the
percentage set forth as such opposite the name of such Limited Partner on
Exhibit A attached hereto. [See: DRULPA ¤¤ 503 and 504; ¤ 12.03[15] and [16] supra.]
1.22. "Prime Rate" means the prime rate of interest as set by [Select
Financial Institution] as the same may change from time to time.
1.23. "Property" means any [set forth what investment and purchase will
be made by the Partnership] acquired by the Partnership.
1.24. "Security" shall have the meaning specified in Section 2(1) of the
Securities Act.
1.25. "Securities Act" means the Securities Act of 1933, as amended.
1.26. "Subscription Agreements" means those certain agreements, by and
among the Partnership, the General Partner and each Limited Partner [executing
this Agreement] pursuant to which each such Limited Partner subscribed to
acquire a Partnership Interest. [Subscription Agreements could also contain a
power of attorney whereby the subscribing Limited Partner grants the general
partner the power to execute this Agreement on his behalf. This simplifies the
procedures by which a Limited Partner becomes bound by the terms of one
Agreement. See: DRULPA ¤¤ 101(10) and 205(b); ¤ 12.03[4] supra.]
1.27. "Substituted Partner" means a transferee of a Partnership Interest
who becomes a Partner pursuant to the terms of this Agreement and succeeds, to
the extent transferred, to the rights and powers and becomes subject to the
restrictions and liabilities of the transferor Partner and to the terms of this Agreement.1.28. "Transfer" means sell, pledge, mortgage, hypothecate, assign,
transfer, distribute, encumber, donate or in any other way dispose of or enter
into any agreement, arrangement or understanding to do any of the foregoing (all
or any of the foregoing being sometimes herein referred to as a "Transfer").
1.29. "Unit" means each ________ Dollars ($_____) of [cash] [property]
[services] contributed to the Partnership as a Capital Contribution (exclusive
of interest thereon).
[Add additional definitions if warranted pursuant to terms used in Agreement.]
2. Organization.
2.1. Formation. The General Partner and the Limited Partners hereby
[continue] [form] the Partnership pursuant to the Act. [Use "continue" if
Partnership previously formed under oral agreement and "form" if Partnership is
being presently formed under this Agreement.]
2.2 Name. The name of the Partnership shall be ______________. The General
Partner may, in its sole discretion, change the name of the Partnership from
time to time and the General Partner shall give prompt written notice thereof to
the Limited Partners.
2.3. Certificate. The General Partner shall file, if, as and when required
by the Act, the Certificate and any amendments thereto. [See: DRULPA ¤ 202; ¤
12.03[3] supra.]
2.4. The Offering. A maximum of _________ (_____) Units of Partnership
Interest at a purchase price of $_____ per Unit may be issued by the General
Partner on behalf of the Partnership. [The Agreement could also provide for
different classes or groups of Units which represent categories of limited
partners. The categories could provide the limited partners with different
rights and powers for different purchase prices. See: DRULPA ¤ 302; ¤ 12.03[5] supra.]
3. Principal Offices. The principal office of the Partnership shall be at
______________ or such other place as the General Partner from time to time may
determine after giving written notice of such change to the Limited Partners.
The principal office need not be in Delaware. The Partnership shall at all times
maintain a registered office and registered agent in the State of Delaware.
[See: DRULPA ¤ 104(a)(1); ¤ 12.03[2] supra.]
4. Purposes of the Partnership. In general, the purpose of the Partnership shall
be [state the business in which the Partnership is to engage; may be one or
several such as, manufacturing of a product, real estate development, investment
in other entities, etc. See: DRULPA ¤ 106; ¤ 12.03[2] supra.] To that end, the
Partnership may engage in any and all lawful business activities in which
limited partnerships formed in the State of Delaware under the Act may
participate and do all things necessary, advisable, appropriate or expedient in
connection with or incidental to the foregoing. The Partnership shall engage in
no other principal business without the consent of a Majority in Interest. The
provisions of this Section 4 shall in no way limit the management duties and
powers given to the General Partner pursuant to Section 7 hereof.
5. Term. The Partnership shall continue for a term of __________ (_____) years
from the date of this Agreement unless prior to such date the General Partner
and a Majority In Interest of the Limited Partners elect to extend the term of
the Partnership for an additional __________ (_____) years, subject, in any
event, to the provisions for earlier dissolution contained in Sections 14.1 and
14.2 below. [DRULPA does not require a limited partnership to set forth a term
of existence in its Certificate. However, a fixed term eliminates one of the
characteristics attributable to a corporation, specifically, unlimited life. As
a result, the Agreement typically contains a date on which the Partnership will terminate.]
6. Capital Contributions.6.1 General Partner. The General Partner shall make a capital contribution
to the Partnership of One Hundred Dollars ($100.00). [If the General Partner is
to have a greater interest, initial contribution could be greater. This amount
is for example purposes only. Moreover, Capital Contributions may also consist
of (1) property contributed or to be contributed or (2) services rendered or to
be rendered. See: DRULPA ¤¤ 101(2), 401 and 501; ¤ 12.03[14] supra.]
6.2. Limited Partners.(a) Initial Limited Partner has made a capital contribution of One
Hundred Dollars ($100) to the Partnership. The Initial Limited Partner shall
withdraw from the Partnership upon the termination of the Offering period and
the closing of the sale of the Limited Partner Partnership Interests, and shall
receive in connection with such withdrawal the return of his capital
contribution of One Hundred Dollars ($100) from the Partnership, without interest.
(b) All payments by the Limited Partners for Units shall be in cash.
[Alternatively, Agreement could provide that the Capital Contribution be paid
(1) in installments pursuant to the terms of a promissory note, (2) in future
services or future contributions of property. See: DRULPA ¤¤ 101(2), 401 and
501; ¤ 12.03[14] supra.]
6.3. Default by Limited Partner. [If Capital Contribution is to be paid in
installments, or in future services or by future contributions of property, the
Agreement may set forth penalties for failure to make Capital Contributions.
See: DRULPA ¤¤ 306 and 502; ¤ 12.03[14] supra.]
(a) The failure of a Limited Partner to pay all or any portion of
his Capital Contribution when due shall constitute an event of default
("Default"), of such Limited Partner (the "Defaulting Partner"). The Partnership
shall give notice of the Default to such Defaulting Partner. If the Defaulting
Partner fails to pay the amount due within ten (10) days following the sending
of a notice of Default given by the Partnership, the General Partner may, at its
option, and without further notice: [If Capital Contribution was to be in cash:
(i) accelerate and declare to be due immediately and payable
the full amount of any unpaid principal balance of the Defaulting Partner's
promissory note (such amount shall bear interest from the payment due date of
default at the lesser of (A) _____ per centum (_____%) above the Prime Rate or
(B) the maximum legal interest rate under applicable law (including choice of
law rules), and]
(ii) if such payment of the full amount is not paid [or
contributed] within ten (10) days after notice is given the defaulting partner
that such payment is due:
A. The right to sell the entire partnership Interest of
the Defaulting Partner to a third party or parties (including, without
limitation, an existing Partner) at such price and on such other terms as the
General Partner deems appropriate;
B. Declare the Partnership Interest of the Defaulting
Partner forfeited and allocate all profit, loss and credits attributable to the
Partnership Interest among the nondefaulting partners, or
C. Redeem the Partnership Interest of the Defaulting
Partner. The Partnership is permitted to borrow funds in order to redeem the
Partnership Interest. [See: DRULPA ¤¤ 306 and 502(c).]
6.4. Use of Capital Contributions. The Capital Contributions of the
Partners shall be utilized to pay for the development of Operations and the
payment of all expenses in connection therewith.
6.5. Withdrawal of Limited Partners. No Limited partner shall be permitted
to withdraw prior to the expiration of the terms of the Partnership. [DRULPA ¤
601, 603; ¤ 12.03[17] supra.]
6.6 Withdrawal of Capital Contributions. Except as otherwise expressly
provided herein, no Partner shall have the right to withdraw or reduce the
contribution of such Partner to the capital of the Partnership without the prior
express written consent of the General partner and a Majority in Interest of
Limited Partners. [Unless this provision is included, the unanimous consent of
all partners will be required to effect a compromise. See: DRULPA ¤¤ 502(b), 602
and 603; ¤ 12.03[14] supra.]
7. Rights, Powers and Obligations of the General Partner.
7.1. Powers. Subject to the terms and provisions of this Agreement, the
management and control of the Partnership and its business, assets and affairs
shall rest exclusively with the General Partner, who shall have all the rights
and powers which may be possessed by a general partner pursuant to the Act and
such rights and powers as are otherwise conferred by law or are necessary,
desirable or convenient to the discharge of its duties under the Agreement and
to the management of the business and affairs of the Partnership.
Without limiting the generality of the foregoing powers of the General
Partner, the General Partner, unless otherwise provided in this Agreement, shall
have the following rights and powers which it may exercise in its sole
discretion at the cost, expense and risk of the Partnership: [If different
classes of General Partners are provided for, it is possible to have certain
matters voted on by some, as opposed to all classes or groups of General
Partners. For example, all General Partners must consent to items (a) through
(d), but only Class A or Group A General Partners must consent to items (d)
through (g). See: DRULPA ¤ 405; ¤ 12.03[5] supra.]
(a) To deal in any Partnership asset whether an interest in real
estate or personalty, to sell (for cash or for debt to be held by the
Partnership), exchange or convey title to, and to grant options for sale of all
or a portion of the Property;
(b) To borrow money and as security therefor to encumber all or any
part of the Property;
(c) To prosecute, defend and settle lawsuits and claims and to
handle matters with governmental agencies;
(d) To open, maintain and close bank accounts for the Partnership
and to designate and change signatories on such accounts;
(e) To incur and pay all legal, accounting, investment banking,
independent financial consulting, litigation and other fees and expenses as it
may deem necessary or appropriate for carrying on and performing the powers and
authorities herein conferred;
(f) To negotiate and make any disposition of Property on such terms
and conditions as the General Partner deems appropriate;
(g) To execute and deliver any contracts, agreements, instruments or
documents necessary, advisable or appropriate to evidence any of the
transactions specified above or contemplated hereby and on behalf of the
Partnership to exercise Partnership rights and perform Partnership obligations
under any such contracts, agreements, instruments or documents; and
(h) To take such other action as the General Partner[s] deem[s]
necessary or appropriate to carry out the purposes of the Partnership or this Agreement.
[Add specific additional powers of General Partner which relate to
Operations of Partnership.] [May also set forth the duties of persons other than
the General Partner. See DRULPA ¤ 1101(d).]
7.2. Duties. The General Partner shall devote such time, effort and
attention as the General Partner in its sole discretion shall deem necessary or
appropriate to efficiently conduct the business and affairs of the Partnership
in the best interests of the Partnership.
7.3. Limitations on Powers and Authority of the General Partner.
Notwithstanding any other provision of this Agreement, without the prior
approval of the greater of a Majority In Interest of the Limited Partners or
such other approval as may be required by applicable law, the General Partner
shall not have the right or power to do any of the following without the
approval or written consent of a Majority In Interest of the Partners:
(a) Borrow money on behalf of the Partnership;
(b) Encumber assets of the Partnership as security for, or otherwise
cause the Partnership to guarantee the payment of, indebtedness of any other
person or entity except any partnership, joint venture or other entity in which
the Partnership may now or hereafter have an interest;
(c) Admit a person as a substitute or additional General Partner;
(d) Admit a person as a limited partner except as otherwise
expressly permitted by this Agreement;
(e) Cause the Partnership to borrow money from or loan money to,
sell assets or Property to or buy assets property of, the General Partner or its Affiliates;
(f) Possess Partnership property, or sell, transfer, assign,
mortgage or pledge Partnership property, other than for a Partnership purpose;
(g) Amend this Agreement except as permitted in Section 18.4. of
this Agreement;
(h) Execute or deliver any assignment for the benefit of creditors
of the Partnership;
(i) Cause the Partnership to engage in any business except as
necessary or appropriate to carry out the Operations for which the Partnership
has been formed; or
(j) Merge the Partnership with or into any entity, whether or not
the Partnership is the surviving entity. [The Agreement may set forth appraisal
rights for the Limited Partners who do not approve of or consent to a proposed
merger. See DRULPA ¤ 212.]
[Many additional actions which may be made subject to approval of Limited
Partners without exposing them to liability as General Partners. See: DRULPA ¤
303; ¤ 12.03[7] supra.]
7.4. Investment and Other Activities of the General Partner and Its
Affiliates. The General Partner and its Affiliates may engage in any other
business or activity they choose whether or not competitive with any business or
activity of the Partnership, including, but not limited to, the ownership,
financing, leasing, operation, management, syndication, brokerage, development
of property similar in nature to the Property, and neither the Partnership nor
any Limited Partner shall have any right, title or interest in or to any such
business or activity. [See: DRULPA ¤ 1101(d); ¤ 12.03[13] supra.]
8. Status of Limited Partner.
8.1. Limited Liability. The Limited Partners shall not be bound by, or
personally liable for, the expenses, liabilities or obligations of the
Partnership, except as provided in the Act. The Limited Partners shall not be
required or obligated to make contributions of any sort whatsoever to the
capital of the Partnership in excess of their Capital Contribution; provided,
however, that a Limited Partner receiving a distribution shall be liable to the
Partnership to the extent provided by the Act. [See: DRULPA ¤ 607; ¤ 12.03[18] supra.]
8.2. Role of Limited Partner. To the extent the Limited Partners exercise
rights with respect to material matters relating to the Partnership or its
affairs, or otherwise exercise rights in relation to the Partnership, such
powers shall be exercised under and in conformity with the provisions of the Act
and this Agreement so as not to constitute taking part in the control of the
business of the Partnership.
8.3. Certain Rights of Limited Partners. The Limited Partners shall have
the following rights, powers, privileges, duties, and liabilities:
(a) [The Limited Partners shall have the right to the information to
the extent required by Section 17-305(a) of the Act, and shall be entitled to
such reports as are set forth in Section 15.3 hereof.] [See: DRULPA ¤ 305; ¤
12.03[9] supra.]
or
[Except as provided in Section 15.3, Limited Partners shall have no
right of access to information or to inspection of records unless the General
Partner in its sole and absolute discretion determines otherwise in any
particular case.] [This alternate provision should be used if the partnership
intends to restrict access to information in accordance with Section 117-305(f)
of the Act.]
(b) The Limited Partners shall receive from the Partnership the
share of the distributions in the manner and at the times provided for in this Agreement.
(c) A Limited Partner shall not have the right to demand payment of
the balance in his Capital Account at any time other than as provided herein. No
Limited Partner shall have priority over any other Limited Partner either as to
the return of capital or as to profits, losses, income tax credits or
distributions, except with respect to a Defaulting Partner as provided in
Section 6.3. No Limited Partner shall have the right to bring an action for
partition against the Partnership.
8.4. Investment and Other Activities of the Limited Partners and Their
Affiliates. The Limited Partners and their Affiliates may engage in any other
business or activity they choose whether or not competitive with any business or
activity of the Partnership, including, but not limited to, the ownership,
financing, leasing, operation, management, syndication, brokerage, development
of property similar in nature to the Property, and neither the Partnership nor
any General Partner shall have any right, title or interest in or to any such
business or activity. [See: DRULPA ¤ 1101(d); ¤ 12.03[13] supra.]
9. Expenses.
9.1. Expenses. Expenses and costs of the Partnership shall be borne as
follows:
(a) The General Partner shall pay at the expense of the Partnership
all costs and expenses of conducting the operations of the Partnership,
including but not limited to:
(i) The fees, charges and expenses of such independent agents,
attorneys, accountants, custodians, investment bankers, and other financial
advisors and consultants as it may reasonably deem necessary or advisable for
the affairs of the Partnership provided that the compensation to be paid by the
Partnership to such persons is not in excess of normal and reasonable rates for
the services performed;
(ii) The cost of preparing and filing, on behalf of the
Partnership, all required local, state and federal tax returns and other
documents relating to the Partnership, and all expenses relating to the
preparation and duplication of any and all reports to be furnished to the
Limited Partners;
(iii) The cost of any litigation by or against the Partnership
or asserting any claim in respect of Partnership assets;
(iv) The out-of-pocket costs incurred by the General Partner
in the course of Partnership business; and
[(v) The annual fee to be paid to the General Partner as fees
for services rendered and unallocated administrative expenses in an amount equal
to the sum of (i) __________ per centum (____%) of the Limited Partners'
aggregate Capital Contributions, plus (ii) one and one-half per centum (1 1/2%)
of such contributions in excess thereof.]
[Set forth additional expenses as the Operations of the Partnership
warrant.]
9.2. Advances for Expenses. In the event the Partnership does not have
readily available funds to pay all or any part of those expenses of the
Partnership and a Limited Partner advances funds (in excess of such Limited
Partner's agreed Capital Contribution) to or on behalf of the Partnership in
respect of such expenses, such advances shall be loans to the Partnership and
which loans shall be paid out of the first cash available to the Partnership
prior to any other payment or distribution to any Partner with interest at a
rate per annum equal to ___________ per centum (_____%) above the Prime Rate,
but not in excess of the rate allowed by law.
10. Capital Accounts; Allocations of Income and Loss.
10.1. Capital Accounts.
(a) A separate capital account shall be maintained for each Partner
(the "Capital Account"). The Capital Accounts may be adjusted as determined by
the General Partner upon a contribution to the capital of the Partnership or a
distribution by the Partnership.
(b) Except as specifically provided in Sections 6 and 11, no Partner
may contribute capital to, or withdraw capital from, the Partnership.
(c) Loans by a Partner to the Partnership shall not be considered
contributions to the capital of the Partnership and shall not increase the
Capital Account of the lending Partner.
10.2. Operating Profit or Loss. The Operating Profit or Loss of the
Partnership for each fiscal year, if any, shall be allocated among the Partners
in proportion with their respective Partnership Percentages. [The Agreement could set forth an alternative method of allocation. In
addition, different groups or classes or partners (both general and limited) may
be allocated different amounts. See: DRULPA ¤ 503; ¤ 12.03[15] supra.]
10.3. Transfer During Taxable Year. If any Partnership Interest is
transferred, or is otherwise increased or decreased, at any time other than the
end of a taxable year of the Partnership, the General Partner will allocate the
various items of Partnership income, gain, deduction, loss, credit and allowance
as computed for federal income tax purposes pro rata pursuant to an "interim-
closing-of-the-books" method. [This provision is not included if there is an
absolute prohibition against transfers. See: DRULPA ¤ 702; ¤ 12.03[19] supra;
see Chapter 9 supra for additional provisions that may be included in Section 10
for tax purposes.]
11. Distributions.11.1. Operating Cash Flow. Except as otherwise provided in Section 14.3
from time to time, as soon as practicable after income has been received from
any of the Partnership Operations, and, in any event, at least annually,
Operating Cash Flow, after repayment of any loans made by any Partner to the
Partnership pursuant to this Agreement, shall be promptly distributed to the
Partners in proportion with their Partnership Percentages. [The Agreement could set forth a different method of distributions. See:
DRULPA ¤ 504; ¤ 12.03[16] supra.]
11.2. Property Distributions. If distributions of property (rather than
cash) are made by the Partnership, the General Partner or if there is no General
Partner, a liquidating trustee, within the meaning of Section 17-803(a) of the
Act, selected by a Majority in Interest of the Limited Partners (the
"Liquidating Trustee"), as the case may be, shall use its best efforts to insure
that such property is distributed to each Partner in undivided interests if the
property is not made up of fungible elements, or in the appropriate units, if
fungible, with each Partner receiving such Partner's pro rata share of the value
and tax basis thereof. [See: DRULPA ¤ 803; ¤ 12.03[20] supra; see Chapter 9
supra for additional provisions that may be included in Section 11 for tax purposes.]
12. Transfers of Partnership Interests. [This section is deleted if the Transfer
of Partnership Interests is precluded. See: DRULPA ¤ 702; ¤ 12.03[19] supra.]
12.1. General Prohibition. Except through a Permitted Transfer as defined
in Section 12.2 below, no Partner shall Transfer all or any part of such
Partner's Partnership Interest without the prior written consent of the General
Partner (or if the transferring Partner is the General Partner, a Majority in
Interest of the Limited Partners) and in compliance with the requirements of
Section 12.3 below.
12.2. Permitted Transfer. A Transfer by a Partner of such Partner's
Partnership Interest shall be deemed a Permitted Transfer (herein so called) if
(a) in the case of the General Partner, such Transfer is a transfer of the
General Partner's Partnership Interest to an Affiliate of such General Partner,
and (b) in the case of a Limited Partner, such Transfer is a transfer to an
Affiliate of such Limited Partner, or (c) in the case of any Partner's
Partnership Interest, such Transfer is by gift, bequest or intestate transfer to
family members of the Partner donor.
12.3. Condition Precedent. In addition to the written consent specified in
Section 12.1 above, each of the following shall be a condition precedent to any
Transfer (including without limitation a Permitted Transfer) and no Transfer may
be made without first fulfilling each such condition:
(a) Such transferring Partner or such Partner's transferee shall
have executed, acknowledged and delivered to the Partnership such instruments of
transfer and assignment with respect to such Transfer as are in form and
substance reasonably satisfactory to the General Partner;
(b) Such transferring Partner or such Partner's transferee shall
have paid to the Partnership a fee which is sufficient to pay all reasonable
expenses incurred by the non-transferring Partners and the Partnership in
connection with such Transfer; and
(c) Such Transfer, in the opinion of counsel for the Partnership or
other counsel reasonably satisfactory to the General Partner, would not
(i) require registration under the Securities Act;
(ii) subject the Partnership or the General Partner to
registration under the Investment Company Act of 1940, as amended;
(iii) require that the General Partner or the Partnership
register as an investment advisor under the Investment Advisors Act of 1940, as amended;
(iv) violate the laws of any nation, state or the rules or
regulations of any government agency of which such counsel is aware;
(v) impair the ability of the Partnership to be taxed as a
partnership (including [without limitation] (i) result in a termination of the
Partnership for purposes of Section 708 of the Code; and (ii) result in the
Partnership being taxed as an association taxable as a corporation under Section
7701 of the Code.); or
(vi) result in the loss of the limited liability of a Limited
Partner under the Act.
12.4. Substituted Partner. No transferee of a Partnership Interest shall
become a Substituted Partner within the meaning of the Act unless:
(a) The General Partner gives prior express written consent; and
(b) The transferee elects in writing to become a Substituted Partner
and executes and acknowledges such other instruments as the General Partner
deems necessary or advisable (or, in the case of a Transfer by the General
Partner of its General Partner Partnership Interest, such instruments as the
Majority in Interest of non-transferring Partners deem necessary or advisable)
to effect the admission of such person as a Substituted Partner, including
without limitation, written acceptance and adoption by such person of all of the
provisions of this Agreement. [See: DRULPA ¤ 704; ¤ 12.03[19] supra.]
12.5. Rights of Certain Transferors and Transferees. In the event a
Transfer by a Limited Partner of all or part of such Limited Partner's
Partnership Interest is effected in accordance with the provisions of Sections
12.1, 12.2 and 12.3, but the transferee is not admitted to the Partnership as a
Substituted Limited Partner pursuant to Section 12.4, such Transfer shall be
deemed to be an Assignment and such transferee shall be entitled to be allocated
all income, gain, loss, deduction, credit or similar items and to receive all
distributions to which the transferring Limited Partner was entitled, to the
extent of the Partnership Interest (or portion thereof) so transferred. Any such
transferee who does not become a Substituted Limited Partner in accordance with
this Agreement shall not be entitled to have or exercise any of the other rights
or powers of a Limited Partner this Agreement (including, without limitation,
any right to consent, approve, vote, make any election or otherwise take any
action required or permitted of or by any Limited Partner hereunder or under the
Act) and no Limited Partner who makes an Assignment of all or any part of its
Partnership Interest shall have a right to have or exercise any of such other
rights or powers of a Limited Partner with respect to any part of the
Partnership Interest so assigned. Any Transfer by a Partner otherwise than in
accordance with the provisions of this Section 12 shall be void ab initio and
neither the other Partners nor the Partnership shall be required to recognize or
give any effect to any such Transfer. [Withdrawal penalties could also be
imposed if restriction against Transfer is violated. See DRULPA ¤ 306.]
13. Withdrawal of Partners; Removal of the General Partner; Admission of
Substitute General Partner; Death or Incapacity of Limited Partners.13.1 Withdrawal. Except as provided in the immediately following sentence,
no Partner shall have the right to withdraw or resign from the Partnership. If a
Partner makes a Transfer in accordance with Section 12 above of all of such
Partner's Partnership Interest and if each of the transferees of such entire
Interest have been admitted to the Partnership as Substituted Partners as
provided in said Article 12, such transferring Partner may resign or withdraw
from the Partnership following such admission.
13.2. Removal of General Partner.(a) The General Partner shall be removed and cease to be the general
partner of the Partnership in the event the General Partner:
(i) shall have all or substantially all of its assets placed
in the hands of a receiver or trustee;
(ii) makes an assignment for the benefit of creditors;
(iii) files a voluntary petition in Bankruptcy;
(iv) is adjudicated a bankrupt or insolvent, or has entered
against him an order for relief in any Bankruptcy or insolvency proceeding;
(v) files a petition or answer seeking for itself any
reorganization, arrangement, composition, readjustment, liquidation, dissolution
or similar relief under any statute, law or regulation;
(vi) files an answer or other pleading admitting or failing to
contest the material allegations of a petition filed against it in a proceeding
of the type described in subsections (b)-(e) of this Section 13.2;
(vii) seeks, consents to, or acquiesces in the appointment of
a trustee or receiver of it or of all or substantially all of its assets;
(viii) dissolves and commences winding up its affairs;
(ix) resigns in violation of this Agreement;
(x) withdraws in violation of this Agreement;
(xi) is removed by an event that with the passage of the
specified period becomes an event of withdrawal under Section 17-402(a)(4) or
(5) of the Act (upon such event the General Partner shall notify each limited
partner of the occurrence of the event within thirty (30) days after the date of
occurrence of the event of withdrawal; or
(xii) is removed by the vote of ___% of the Partnership
Interests.
(b) No removal in Section 13.2(a) shall become effective following
the occurrence of any of the events specified above until a substituted General
Partner has been appointed by a vote of ___% of the Partnership Interests. Such
removed General Partner shall execute an amendment to the Certificate of Limited
Partnership to reflect its removal. [This prevents the dissolution of the
Partnership if the General Partner removed is the sole General Partner. See:
DRULPA ¤ 801; ¤ 12.03[20] supra.]
13.3 Death, Bankruptcy or Incapacity of Limited Partners. The death,
Bankruptcy or legal incapacity of one or more Limited Partners shall not
terminate the Partnership; the rights of the Partner affected shall devolve upon
his executor, administrators, personal representative, trustee or guardian.
14. Dissolution and Winding Up of Partnership.
14.1 Dissolution. The Partnership shall be dissolved upon the first to
occur of any of the following events:
(a) The withdrawal of the General Partner pursuant to Section 13.2
above prior to the appointment of a substitute General Partner;
(b) The expiration of the term of the Partnership and the failure of
the General Partner and a Majority in Interest of the Limited partners to elect
to extend such term as provided in Section 5 above;
(c) The mutual written agreement of all of the Partners to dissolve
the Partnership; [This supercedes the two-thirds limited partner vote now
provided in DRULPA ¤ 801(2).]
(d) The occurrence of the events set forth in (and subject to the
terms of) Section 17-801(4) and (5) of the Act. [This includes dissolution upon
the time there are no limited partners (subject to the right to continue) and
upon judicial decree of dissolution. DRULPA ¤¤ 801 and 802; ¤ 12.03[20] supra.]
14.2. Election Upon Dissolution. Upon a dissolution of the Partnership
pursuant to Section 14.1(a) above, ___% of the Limited Partners, but not less
than a majority in interest of the Limited Partners, may affirmatively elect to
continue the business of the Partnership, and they shall select a substitute
General Partner effective as of the date of withdrawal of the General Partner.
In the event the Limited Partners fail to affirmatively elect to continue the
business of the Partnership and to select a substitute General Partner effective
as of the date of withdrawal of the General Partner within ninety (90) days of
such a withdrawal, the Partnership shall be wound up pursuant to Section 14.3
below. [See: DRULPA ¤ 801; ¤ 12.03[20] supra.]
14.3. Winding Up. Upon the failure of the Limited Partners to elect to
continue the business of the Partnership pursuant to Section 14.2 above, or upon
a dissolution of the Partnership pursuant to Section 14.1 above, the General
Partner or, if there is no General Partner, the Liquidating Trustee appointed by
the vote of a [Majority in Interest] [___%] of the Limited Partners, shall take
full account of the Partnership's assets and liabilities and shall determine
which assets shall be distributed in kind and which assets shall be liquidated,
which liquidation shall be carried out as promptly as is consistent with
obtaining the fair value thereof. The cost and expenses related to the winding
up of the Partnership, if any, shall be borne by the Partnership prior to
distribution to the Partners. Assets or the proceeds of liquidation thereof
shall be applied and distributed in the following order:
(a) To the payment of the provision of all of the Partnership's
debts and liabilities to persons [other than Partners and former Partners]
[including Partners and former Partners who are creditors] and the expenses of
liquidation (including a reasonable reserve for contingent, conditional or
unmatured claims or obligations of the Partnership and all claims and
obligations which are known but which the identity of the claimant is unknown);
(b) To the payment and discharge of all of the Partnership's debts
and liabilities for distributions to Partners; and
(c) To the Partners in accordance with the positive balances in
their Capital Accounts (determined after giving effect to the allocation of all
gains and losses realized in connection with the liquidation).
When the distribution plan set forth above has been completed, the General
Partner or the Liquidating Trustee shall prepare, all the General Partners shall
execute and acknowledge, and the Partnership shall file a Certificate of
Cancellation of the Partnership with the Delaware Secretary of State. [See:
DRULPA ¤¤ 803 and 804; ¤ 12.03[20] supra.]
15. Books of Account; Accounting and Reports; Banking; Tax Matters; Partnership
Filings. [See generally, DRULPA ¤ 305; ¤ 12.03[9] supra. This Section is for
example purposes. The only requirements are as set forth in DRULPA ¤ 305.]
15.1. Books of Account and Information. The Partnership's books and
records and this Agreement shall be maintained at the principal office of the
General Partner or at an office designated by the General Partner upon thirty
(30) days' written notice to the Limited Partners, and each Partner shall have
access thereto at all reasonable times; provided, however, that the Partnership
shall make its books and records available at its principal office within five
(5) days after receipt of a written request from a Partner. The books and
records of the Partnership shall be kept on the accounting and income tax basis
selected by the Partnership's certified public accountants in accordance with
generally accepted accounting principles applied on a consistent basis by the
Partnership, shall reflect all Partnership transactions and shall be appropriate
and adequate for the Partnership's business.
15.2. Fiscal Year. The fiscal year of the Partnership shall be the taxable
year that the Partnership is required to adopt for federal income tax purposes.
15.3 Accounting and Reports.(a) Each Limited Partner shall, upon request, be furnished by the
Partnership with an unaudited annual report containing (i) a balance sheet as of
the end of its fiscal year and statements of income for the year then ended, all
of which shall be prepared in accordance with generally accepted accounting
principles and on the accounting and income tax basis selected by the
Partnership's certified public accountants, and (ii) a report of the activities
of the Partnership during the period covered by the report. Such report shall
also set forth unaudited distributions to Unit holders of the period covered
thereby and shall separately identify distributions from (i) Cash Flow during
the period, and (ii) from any other source. The General Partner shall make every
reasonable effort to cause the Partnership to furnish such information within
one hundred twenty (120) days after the end of each fiscal year, if so requested.
(b) The General Partner will use its best efforts to deliver
appropriate tax information to each Limited Partner within ninety (90) days
after the end of each Fiscal Year. In addition, concurrently with the delivery
of such information, the General Partner shall deliver to each Limited Partner
adequate information relating to the Partnership to enable each Limited Partner
to complete and file such Partner's Federal income tax return.
15.4. Banking and Securities. All funds of the Partnership shall be
deposited in such separate bank account or accounts as shall be determined by
the General Partner, which funds shall be maintained separately from other bank
accounts of the General Partner. Funds of the Partnership may be invested in
government obligation of the United States or any of the several States,
certificates of deposit and other money market securities or like short term
obligations, consistent with the Partnership's requirements for liquidity. All
withdrawals therefrom shall be made upon checks signed by the General Partner or
by any person authorized to so do by the General Partner.
15.5. Partnership Returns: Certain Actions. The General Partner for each
fiscal year of the Partnership shall file on behalf of the Partnership a Federal
Partnership Return within the time prescribed by law (including extensions) for
such filing. The General Partner shall also file on behalf of the Partnership
such state or local income tax returns as may be required by law. The General
Partner, at the expense of the Partnership, shall take all actions legally
available to it to prevent the occurrence of any act or event which would cause
the Partnership to be characterized as an association taxable as a corporation
rather than as a partnership.
15.6. Tax Matters Partner. The Tax Matters Partner (herein so called and
as defined in Section 6231 of the Code) of the Partnership shall be the General
Partner. The General Partner shall not resign as the Tax Matters Partner unless,
on the effective date of such resignation, the Partnership has designated
another Partner as Tax Matters Partner and that such partner has given its
consent in writing to its appointment as Tax Matters Partner. The Tax Matters
Partner shall receive no additional compensation from the Partnership for its
services in that capacity, but all expenses incurred by the Tax Matters Partner
in such capacity shall be borne by the Partnership. Any amounts of tax or
expenses paid with respect to the determination of any tax imposed on the
Partnership or its Partners with respect to Partnership income or deduction
shall constitute a Partnership expense and shall be paid by the Partnership. The
Tax Matters Partner is authorized to employ such accountants, attorneys and
agents as it, in its sole discretion, determines is necessary to or useful in
the performance of its duties. In addition, the General Partner shall serve in a
similar capacity with respect to any similar tax related or other election
provided by state or local laws. If the General Partner is removed in accordance with Section 13.2 of this
Agreement, the General Partner shall cease to be the Tax Matters Partner. The
substitute General Partner shall automatically become the new Tax Matters
Partner if the General Partner is removed. If the Partnership is to dissolve and
wind up pursuant to Section 14.3 of this Agreement, the Liquidating Trustee
shall be the Tax Matters Partner. [This provision is important to avoid having
the removed General Partner remaining involved in the Partnership as a result of
his role as Tax Matters Partner.]
16. Power of Attorney and Appointment of Agent.
16.1. General. Each Limited Partner hereby makes, constitutes and appoints
the General Partner, with full power of substitution and resubstitution, its
true and lawful attorney-in-fact for it and in its name, place, and stead and
for its use and benefit, to sign, execute, certify, acknowledge, swear to, file
and record this Agreement and all certificates of limited partnership,
fictitious or assumed name certificates, and other certificates and instruments
which the General Partner deems necessary or appropriate to qualify or to
continue the Partnership as a limited partnership or to conduct the business of
the Partnership, and to sign, execute, certify, acknowledge, file and record all
instruments amending this Agreement or any such certificates or instruments, as
now or hereafter amended, that may be appropriate under this Agreement,
including without limitation agreements or other instruments or documents (a) to
reflect the exercise by the General Partner of any of the powers granted under
this Agreement; (b) to reflect the admission to the Partnership of any
Substituted Partner or to reflect the withdrawal of any Partner; and (c) which
may be required of the Partnership or of the Partners by the laws of any state
or any other jurisdiction. Each Limited Partner hereby grants to such attorney-
in-fact full power and authority to do and perform each and every act or thing
whatsoever requisite or advisable to be done in and about the foregoing as fully
as such Limited Partner might or could do if personally present, and hereby
ratifies and confirms all that each such attorney-in-fact shall lawfully do or
cause to be done by virtue hereof. [See: DRULPA ¤¤ 101 (11) and 204(b); ¤
12.03[2] supra.]16.2. Nature. The power of attorney granted pursuant to Section 16.1
above:
(a) Is a special power of attorney coupled with an interest and is
irrevocable during the existence of the Partnership and in connection with the
dissolution or winding up thereof;
(b) May be exercised by such attorney-in-fact by signing separately
as attorney-in-fact for each Limited Partner or by a single signature as
attorney-in-fact for all Limited Partners.
(c) Shall survive the Transfer to Limited Partner of all or a
portion of its interest in the Partnership, except that where the purchaser,
transferee or assignee thereof has the right to be, or with the consent of the
General Partner is, admitted as a Substituted Limited Partner, the power of
attorney shall survive the delivery of such assignment for the sole purpose of
enabling each such attorney-in-fact to execute, acknowledge, swear to and file
any such agreement, certificate, instrument or document necessary to effect such substitution.
17. Liability and Indemnification of General Partner.
17.1. Exoneration. Except in case of gross negligence or willful
misconduct, the doing of any act or the failure to do any act by the General
Partner and its agents and employees, the effect of which may cause or result in
loss or damage to the Partnership, if done in good faith to further the best
interests of the Partnership, shall not subject such General Partner to any
liability to any Limited Partner or the Partnership. [See: DRULPA ¤ 1101(d); ¤
12.03[13] supra.]
17.2. Indemnification. The Partnership shall indemnify and hold harmless
the General Partner and its agents and employees against any and all claims,
actions, demands, losses, costs, expenses (including attorneys' fees), and
damages to the fullest extent provided or permitted under the provisions of the
Act; all judgments or other assessments against the Partnership wherein the
General Partner or its agents or employees are entitled to indemnification
pursuant to this Section 17.2 shall first be satisfied out of any insurance
proceeds available therefor and next out of assets of the Partnership, provided,
however, that in no event shall any Limited Partner by personally liable for any
amount pursuant to this Section 17.2 in excess of such Limited Partner's Capital
Contribution. [See: DRULPA ¤¤ 108 and 1101(d); ¤ 12.03[13] supra.]17.3. No Personal Liability. Anything in this Agreement to the contrary
notwithstanding, the General Partner shall not be personally liable for the
return of all or any portion of the Capital Contributions of the Limited
Partners, it being expressly understood that any such return shall be made
solely from Partnership assets.
18. Miscellaneous.
18.1. Notices. Whenever this Agreement requires or permits any consent,
approval, notice, request, or demand from one party to another, the consent,
approval, notice, request, or demand must be in writing to be effective and
delivered to the party to be notified at the address stated below. Any party may
change his or its address by giving written notice to the other party of any
such change in the manner provided herein for giving notice.
(a) If to the General Partner:ABC, Inc.____________________________________________________
(b) If to the Partnership, to: ABC, L.P.____________________________________________________
(c) If to a Limited Partner, to the address set forth under the name
of such Limited Partner on Exhibit A attached hereto.
Any party hereto may change the appropriate person, address or any telex or
telecopy number to whom or to which any notice is to be directed by written
notice given to each other party in accordance with the provisions of this
Section 18.1. Any such consent, approval, notice, request or demand shall be
deemed to have been duly delivered: at the time delivered by hand, if personally
delivered; when answered back if telexed; when receipt is acknowledged, if
telecopied; and the day guaranteed for delivery after timely delivery to the
courier, if sent by express courier guaranteeing a specific day for delivery.
18.2. Captions. Section and other captions contained in this Agreement are
for reference purposes only and are in no way intended to describe, interpret,
define or limit the scope, extent or intent of this Agreement or any provision hereof.
18.3. Severability. Every provision of this Agreement is intended to be
severable. If any term or provision hereof is illegal or invalid for any reason
whatsoever, such illegality or invalidity shall not affect the validity of the
remainder of this Agreement.
18.4. Amendments. Amendments to this Agreement which are of an
inconsequential nature and do not adversely affect any Limited Partner in any
material respect, or are necessary or are desirable to comply with any
applicable law or governmental regulation, or are required or contemplated by
this Agreement (including, without limitation, any amendment to reflect the
admission of an additional Limited Partner), may be made by the General Partner
through use of the power of attorney granted to the General Partner by Section
16 of this Agreement and each Limited Partner shall be provided promptly with a
copy of each amendment made through use of such power of attorney. Except as
provided in the immediately preceding sentence, this Agreement may not be
amended without the written approval of the General Partner and a Majority in
Interest of the Limited Partners, provided, however, that no such amendment may
enlarge the obligations or diminish the rights of any Limited Partner under this
Agreement or modify the distributions of cash or allocations of Operating Profit
or Loss without the prior express written agreement of all Limited Partners
adversely affected thereby. This Agreement may not be modified or amended other
than by an agreement in writing and all the parties hereto hereby waive any
right to modify or amend this Agreement except as aforesaid.18.5. Litigation. The General Partner shall prosecute and defend all
actions at law or in equity as may be necessary to enforce or protect the
interests of the Partnership. The Partnership and the General Partner shall
respond to any final decree, judgment or decision first out of any insurance
proceeds available therefor, next out of the assets of the Partnership, and
finally out of the assets of the General Partner.
18.6. Governing Law. The local, internal laws of Delaware shall govern
validity of this Agreement, the construction of its terms, and the
interpretation of the rights and duties of the parties notwithstanding any
conflict of law doctrines of such state or other jurisdiction to the contrary.
18.7. Counterpart Execution. This Agreement may be executed in any number
of counterparts with the same effect as if all parties had executed the same
document. All counterparts shall be construed together and shall constitute one Agreement.
18.8. Parties in Interest. Each and every covenant, term, provision and
agreement herein contained shall be binding upon and inure to the benefits of
the successors and assigns of the respective parties hereto, except that no
party may assign or transfer its rights or obligations under this Agreement in
any manner other than as provided in this Agreement.
18.9. Integrated Agreement. This Agreement, including all exhibits hereto,
constitutes the entire understanding and agreement among the parties hereto with
respect to the particular subject matter hereof, and supersedes all prior and
contemporaneous agreements and understandings, inducements or conditions,
express or implied, oral or written, except as herein contained. The express
terms hereof control and supersede any course of performance or usage of trade
inconsistent with any of the terms hereof.
18.10. Gender, Etc. When used in this Agreement, singular terms include
the plural as appropriate in context, and masculine terms include the feminine
and neuter genders as appropriate in context.
18.11. Survival of Rights. Except as otherwise provided herein, this
Agreement shall be binding upon and inure to the benefit of the parties
signatory hereto, their successors, personal representatives, heirs and assigns.
18.12. Indulgences, Etc. Neither the failure nor any delay on the part of
any party hereto to exercise any right, remedy, power or privilege under this
Agreement shall operate as a waiver thereof, nor shall any single or particular
exercise of any right, remedy, power, or privilege preclude any other or further
exercise of the same or of any other right, remedy, power, or privilege with
respect to any occurrence be construed as a waiver of such right, remedy, power,
or privilege with respect to any other occurrence. No waiver shall be effective
unless it is in writing and is signed by the party asserted to have granted such waiver.18.13. Number of Days. In computing the number of days for purposes of
this Agreement, all days shall be counted, including Saturdays, Sundays, and
holidays; provided, however, that if the final day of any time period falls on a
Saturday, Sunday, or holiday, then the final day shall be deemed to be the next
day which is not a Saturday, Sunday or holiday.
18.14. Third Party Beneficiaries. Notwithstanding anything to the contrary
contained herein, no provision of this Agreement is intended to benefit any
party other than the Partners hereto, their permitted successors and assigns and
the Partnership and shall not be enforceable by any other party.
18.15. SECURITIES LAW. THE UNITS EVIDENCED BY THIS AGREEMENT HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER CERTAIN STATE
SECURITIES LAWS. THE UNITS MAY NOT BE SOLD OR OFFERED FOR SALE IN THE ABSENCE OF
AN EFFECTIVE REGISTRATION STATEMENT FOR THE UNITS UNDER THE SECURITIES ACT, AND
SUCH STATE LAWS AS MAY BE APPLICABLE, OR DELIVERY TO THE PARTNERSHIP OF AN
OPINION OF COUNSEL SATISFACTORY TO THE PARTNERSHIP THAT SUCH REGISTRATION IS NOT REQUIRED.
IN WITNESS WHEREOF, this Amended and Restated Agreement of Limited Partnership
has been executed effective as of the date hereof.
GENERAL PARTNER:
ABC, L.P.
By: ________________________________
INITIAL LIMITED PARTNER:
By: ________________________________John H. Smith
LIMITED PARTNERS:
By: ________________________________ ABC, Inc., as Attorney-in-Fact
for the Limited Partners
EXHIBIT A
GENERAL PARTNER[S]
Name and Address Partnership Percentage
LIMITED PARTNERS
Name and Address Partnership Percentage
