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EXHIBIT 10.17
SUTRO VENTURE PARTNERS I, LP
LIMITED PARTNERSHIP AGREEMENT
March 21, 1996
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TABLE OF CONTENTS
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ARTICLE I - General Provisions ................................................1
SECTION 1.01. Definitions ................................................1
(a) Agreement .......................................................1
(b) Borrower ........................................................1
(c) Capital Account .................................................1
(d) Capital Contribution ............................................1
(e) Certificate of Limited Partnership ..............................1
(f) Code ............................................................1
(g) CRLPA ...........................................................1
(h) Disability ......................................................1
(i) General Partner .................................................2
(j) Limited Partner .................................................2
(k) Partner .........................................................2
(l) Partnership .....................................................2
(m) Securities ......................................................2
(n) Sutro ...........................................................2
(o) Sutro Employee ..................................................2
(P) Voting Control ..................................................2
SECTION 1.02. Partnership Name ...........................................2
SECTION 1.03. Fiscal Year ................................................2
SECTION 1.04. Nature and Liability of Partners ...........................2
SECTION 1.05. Purposes ...................................................3
SECTION 1.06. Powers of Partnership ......................................3
SECTION 1.07. General Partner as Limited Partner .........................4
ARTICLE II - Management of Partnership ........................................4
SECTION 2.01. General ....................................................4
SECTION 2.02. Services of General Partner ................................4
SECTION 2.03. Compensation of General Partner ............................4
(a) No Management Fee ...........................................4
(b) Expenses ....................................................4
SECTION 2.04. Restrictions ...............................................5
(a) No Services by Limited Partners .............................5
(b) Partnership Credit ..........................................5
(c) Limitation on Borrowing and Pledging ........................5
(d) Additional Restrictions .....................................6
SECTION 2.05. Reliance by Third Parties ..................................6
SECTION 2.06. Partner's Transactions .....................................6
SECTION 2.07. Exculpation of Liability ...................................6
(i)
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SECTION 2.08. Indemnification ............................................6
ARTICLE III - Capital Accounts; Allocations; Distributions ....................7
SECTION 3.01. Capital Contributions ......................................7
(a) Contributions .................................................7
(b) Borrowing .....................................................7
(c) Vesting .......................................................8
SECTION 3.02. Capital Accounts ...........................................8
SECTION 3.03. Deficit Capital Accounts ...................................9
SECTION 3.04. Allocations ................................................9
(a) Book Items ....................................................9
(b) Tax Items .....................................................9
(c) Allocations on Withdrawal .....................................9
(d) Qualified Income Offset .......................................9
(e) General Partner Nonrecourse Debt .............................10
(f) Curative Allocations .........................................10
SECTION 3.05. Distributions to Partners .................................10
(a) Distributions to Partners ....................................10
(b) Application of Distributions .................................11
(c) Repayment of Distributions ...................................11
SECTION 3.06. No Interest on Capital ....................................11
ARTICLE IV - Withdrawal of Limited Partner ...................................11
SECTION 4.01. Withdrawal of Limited Partner .............................11
SECTION 4.02. Legal Representatives .....................................12
SECTION 4.03. Mandatory Withdrawal ......................................12
SECTION 4.04. Liquidating Share .........................................12
SECTION 4.05. Cessation of Participation ................................12
ARTICLE V - Transfer of Partnerships Interests ...............................13
SECTION 5.01. Assignability of Interests ................................13
SECTION 5.02. Substituted Limited Partners ..............................13
SECTION 5.03. Obligations of Assignee ...................................14
ARTICLE VI - Duration and Termination of Partnership..........................14
SECTION 6.01. Duration...................................................14
SECTION 6.02. Withdrawal of Limited Partner .............................14
SECTION 6.03. Withdrawal General Partner ................................14
SECTION 6.04. Liquidation ...............................................15
SECTION 6.05. Distribution Upon Termination .............................15
ARTICLE VII - Records; Reports to Partners....................................16
(ii)
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SECTION 7.01. Financial Records.................................. 16
SECTION 7.02. Annual Reports..................................... 16
SECTION 7.03. Inspection......................................... 17
SECTION 7.04. Tax Returns........................................ 17
ARTICLE VIII - Valuation.............................................. 17
SECTION 8.01. Valuation of Partnership Net Worth................. 17
SECTION 8.02. Valuation Date..................................... 17
SECTION 8.03. Valuing Securities and Other Assets................ 18
ARTICLE IX - Miscellaneous............................................ 18
SECTION 9.01. Admission of Limited Partners...................... 19
(a) Additional Limited Partners............................ 19
(b) Substituted Limited Partners........................... 19
(c) Procedure.............................................. 19
SECTION 9.02. Disputed Matters................................... 19
SECTION 9.03. Payments in Kind................................... 19
SECTION 9.04. General............................................ 20
SECTION 9.05. Notices............................................ 20
(a) To the Partners........................................ 20
(b) To the Partnership..................................... 20
SECTION 9.06. Execution of Certificate of Limited Partnership
and Other Documents......................................... 20
SECTION 9.07. Force Majeure...................................... 20
SECTION 9.08. Amendments......................................... 21
SECTION 9.09. Headings........................................... 21
SECTION 9.10. Power of Attorney.................................. 21
(iii)
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SUTRO VENTURE PARTNERS I, LP
LIMITED PARTNERSHIP AGREEMENT
BY THIS LIMITED PARTNERSHIP AGREEMENT made and entered into as of March
21, 1996, The Sutro Group, a corporation organized under the laws of the State
of Nevada, as general partner, and those persons and entities executing this
Agreement or counterparts thereof and listed on Exhibit A (as it may be amended
from time to time) as limited partners, hereby form a limited partnership
pursuant to the laws of the State of California.
ARTICLE I - General Provisions
SECTION 1.01. Definitions. For all purposes of this Agreement, except
as otherwise expressly provided or unless the context otherwise requires:
(a) Agreement. "Agreement" means this Limited Partnership Agreement as
it may from time to time be amended.
(b) Borrower. "Borrower" has the meaning specified in Section 3.01(c).
(c) Capital Account. "Capital Account" means those separate capital
accounts which are maintained for each Partner as defined in Section 3.02.
(d) Capital Contribution. "Capital Contribution" means the total amount
of money paid to the Partnership by each Partner as set forth on the signature
page hereof or counterpart thereof and reflected on Exhibit A hereto.
(e) Certificate of Limited Partnership. The "Certificate of Limited
Partnership", means the certificate of limited partnership for the Partnership
and all amendments thereto required under the laws of the State of California to
be signed and sworn to by the Partners of the Partnership and filed for
recording in the appropriate public offices within the State of California to
perfect or maintain the Partnership as a limited partnership under the laws of
the State of California and/or to effect the admission, withdrawal or
substitution of any Partner of the Partnership.
(f) Code. "Code" means the Internal Revenue Code, as amended.
(g) CRLPA. "CRLPA" means the California Revised Limited Partnership
Act, as amended from time to time.
(h) Disability. "Disability" means permanent inability to be gainfully
employed at Sutro or its affiliates.
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(i) General Partner. "General Partner" means The Sutro Group, a Nevada
corporation, or any person substituted for or who succeeds The Sutro Group as
such general partner pursuant to the terms of this Agreement.
(j) Limited Partner. "Limited Partner" means any person who is or shall
become a Limited Partner of the Partnership.
(k) Partner. "Partner" means the General Partner or any Limited
Partner.
(l) Partnership. "Partnership" means Sutro Venture Partners I, LP, a
California limited partnership.
(m) Securities. "Securities" means securities of every kind or
description.
(n) Sutro. "Sutro" means The Sutro Group, a Nevada Corporation. The
affiliates of Sutro shall include all corporations and partnerships (i) over
which Sutro or any of its affiliates has Voting Control, (ii) which, directly or
indirectly, have Voting Control over Sutro, and (iii) which are under Voting
Control of any corporation or partnership described in the immediately preceding
clause (ii).
(o) Sutro Employee. "Sutro Employee" means an individual employed [on a
full-time basis] by Sutro or any of its affiliates.
(p) Voting Control. "Voting Control" means the right to vote 50% or
more of the securities having the right to elect the directors of a corporation
or the right to designate a majority of the general partners of a partnership.
SECTION 1.02. Partnership Name. The Partnership shall do business under
the name and style of "Sutro Venture Partners I, LP," or such other name as the
General Partner may designate.
SECTION 1.03. Fiscal Year. The fiscal year of the Partnership shall be
the calendar year, or such other fiscal year as the General Partner shall
designate or the Code shall require.
SECTION 1.04. Nature and Liability of Partners. The General Partner
shall have such liability for the repayment, satisfaction and discharge of the
debts, liabilities and obligations of the Partnership as is provided by the
CRLPA for a general partner of a limited partnership. The Limited Partners who
execute this Agreement or are otherwise admitted as Limited Partners shall be
liable to the Partnership for the repayment, satisfaction and discharge of its
debts, liabilities and obligations only (i) to the extent of their respective
Capital Contributions and (ii) to the extent provided in Section 15666 of the
CRLPA.
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The Partners hereby agree among themselves to share in accordance with the
terms of this Agreement all losses, liabilities or expenses suffered or incurred
by virtue of the operation of the Partnership, provided that Limited Partners
shall share such losses, liabilities, and expenses only up to the limit of their
respective Capital Contributions. The General Partner agrees to assume and be
liable for all such losses, liabilities and expenses not covered by the
aggregate Capital Contributions of the Partners.
SECTION 1.05. Purposes of Partnership. The purposes of the Partnership
are to make investments in investment partnerships or companies formed for the
purpose of investing in the Securities of publicly and privately held
businesses, in order to provide incentives to investment executives and senior
management personnel of Sutro or its affiliates who are given the opportunity to
participate as Limited Partners in the Partnership. Limited Partnership
interests shall be allocated initially by Sutro based on the contributions of
such executives to the business of Sutro and its affiliates and shall be subject
to future vesting, redemption and other provisions hereof which relate to the
continued service of such executives.
SECTION 1.06. Powers of Partnership. In furtherance of the purposes of
the Partnership set forth in Section 1.05, the Partnership shall have the
following powers:
(a) To purchase or otherwise acquire, hold, and sell or
otherwise dispose of Securities, without regard to whether such
Securities are publicly traded, readily marketable, or otherwise
restricted as to transfer or resale;
(b) Subject to the limitations set forth in paragraph 2.04(c),
to possess, transfer, mortgage, pledge or otherwise deal in, and to
exercise all rights, powers, privileges and other incidents of
ownership or possession with respect to, Securities held or owned by
the Partnership, and to carry Securities in the name of a nominee or
nominees;
(c) Subject to the limitations set forth in paragraph 2.04(c),
to borrow or raise moneys, and to guarantee the obligations of others
and to sell, pledge or otherwise dispose of bonds or other obligations
of the Partnership for its purposes;
(d) To have and maintain an office within the State of
California and in connection therewith to rent, or acquire office
space, engage personnel and do such other acts and things as may be
necessary or advisable in connection with the maintenance of such
office, and on behalf of and in the name of the Partnership to pay and
incur reasonable expenses and obligations for legal, accounting,
consultative and custodial services, and all other reasonable costs and
expenses incident to the operation of the Partnership;
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(e) To form and own one or more corporations, trusts or limited
partnerships, provided that no entity so formed may do directly or indirectly
what the Partnership is prohibited by this Agreement from doing; and
(f) To enter into, make and perform all such contracts, agreements and
other undertakings as may be necessary or advisable or incident to the carrying
out of the foregoing objects and purposes.
SECTION 1.07. General Partner as Limited Partner. The General Partner
may also be a Limited Partner, and in such event its rights, powers,
restrictions and liabilities as a General Partner shall remain unaffected, and
in addition, it shall, in respect of its interest as a Limited Partner, have all
of the rights and powers and be subject to all of the restrictions and
liabilities of a Limited Partner.
ARTICLE II - Management of Partnership
SECTION 2.01. General. The management, operation and policy
determinations of the Partnership shall be, and hereby are, vested in the
General Partner who shall manage the Partnership's affairs. Except as otherwise
expressly provided herein, the General Partner shall have the power to exercise
the powers, rights and authority granted to the General Partner hereunder on
behalf and in the name of the Partnership.
SECTION 2.02. Services of General Partner. The General Partner shall
(i) provide investment advice to the Partnership and shall bear the cost of
securing information with respect to prospective investments, (ii) maintain the
books and records of the Partnership, (iii) provide routine bookkeeping and
recordkeeping services and custody of Partnership securities, and (iv) provide
office space, office and executive staff, and office supplies and equipment for
the use of the Partnership. The General Partner shall be required to devote only
such time as is necessary to perform such services and to supervise the
activities of the Partnership, and directly or through its parent or affiliates
it may engage or invest in other businesses and activities of every nature,
including those competitive with the activities of the Partnership, without the
Partnership or any Partner having any right by virtue of this Agreement to an
interest in such other businesses or activities or any profits thereof.
SECTION 2.03. Compensation of General Partner.
(a) No Management Fee. The General Partner shall not receive any fees
or compensation from the Partnership for its services to the Partnership.
(b) Expenses. The General Partner shall be reimbursed from the
Partnership for all reasonable expenditures made on behalf of the Partnership or
incurred incident to the operation of the Partnership, including, without
limitation, all
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legal, consulting and audit expenses incurred in the organization of the
Partnership, preparing any amendment to the Partnership Agreement, and
performing any other legal and audit services for the Partnership, interest
expenses, and brokerage fees, commissions and discounts incurred in connection
with the purchase or sale of Securities, and other out-of-pocket expenses
incurred in connection with the making and monitoring of the Partnership
investments and the administration of the Partnership.
SECTION 2.04. Restrictions. Partners shall be restricted in their
activities as follows:
(a) No Services by Limited Partners. The Limited Partners shall not
participate in the management of the Partnership and shall not hold themselves
out as General Partners or take any action on behalf of the Partnership or in
any way commit the Partnership to any agreement or contract and shall have no
right or authority to do any of the foregoing.
(b) Partnership Credit. No Partner shall lend or use the funds or
credit of the Partnership or employ the Partnership's name for any purpose
whatsoever, except that the General Partner may do so for the purposes of the
Partnership or as permitted by paragraph (c) of this Section.
(c) Limitation on Borrowing and Pledging.
(i) If in the reasonable judgment of the General Partner it is
desirable to do so to accomplish the purposes of the Partnership, the
Partnership may borrow money from banks or other recognized financial
institutions and secure payment of any such borrowing by hypothecation
or pledge of Partnership properties or otherwise provided that (A) any
such borrowing has an original maturity of less than one year and (B)
the aggregate of all indebtedness of the Partnership for money borrowed
outstanding at any one time does not exceed 5% of the sum of the
Capital Contributions of all Partners.
(ii) The Partnership may guarantee the obligations of others
provided that the amount guaranteed, together with any amount borrowed,
shall at no time exceed the limitation set forth in clause (i)(B)
above.
(iii) Notwithstanding the foregoing, the Partnership may
borrow funds from Sutro or its successors or assume obligations of
Limited Partners to Sutro or its successors under the terms which the
General Partner deems appropriate in connection with the redemption or
withdrawal under Article IV of the interests of Limited Partners who
are Borrowers who have outstanding obligations to Sutro under paragraph
3.01(b).
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(d) Additional Restrictions. The Partnership shall not make short sales
of Securities not owned by the Partnership.
SECTION 2.05. Reliance by Third Parties. Notwithstanding any other
provision of this Article II, any third party dealing with the Partnership may
rely conclusively upon the authority, power and right of the General Partner
acting under this Agreement. This Section shall not be deemed to limit the
liabilities and obligations of the General Partner as set forth in this
Agreement.
SECTION 2.06. Partner's Transactions. Nothing in this Agreement shall
be construed to prohibit any Partner from buying or selling securities for such
Partner's own account, including securities of the same issuers as those held by
the Partnership.
SECTION 2.07. Exculpation of Liability. The General Partner and its
Affiliates (as defined in Section 2.08) shall have no liability to the
Partnership or to any Partner for any loss suffered by the Partnership which
arises out of any action or inaction of the General Partner or its Affiliates if
the General Partner or its Affiliates, in good faith, determined that such
course of conduct was in the best interests of the Partnership and such course
of conduct did not constitute negligence or misconduct of the General Partner or
its Affiliates.
SECTION 2.08. Indemnification. The General Partner and its Affiliates
shall be indemnified by the Partnership against any losses, judgments,
liabilities, expenses and amounts paid in settlement of any claims sustained by
them in connection with the Partnership, provided that the same were not the
result of gross negligence or willful misconduct on the part of the General
Partner or its Affiliates.
Notwithstanding the above, the General Partner and its Affiliates shall
not be indemnified by the Partnership for any losses, liabilities or expenses
arising from or out of an alleged violation of federal or state securities laws
unless (1) there has been a successful adjudication on the merits of each count
involving alleged securities law violations; or (2) such claims have been
dismissed with prejudice on the merits by a court of competent jurisdiction or
(3) with respect to a settlement of claims against a particular indemnitee, a
court of competent jurisdiction approves such settlement and finds that
indemnification of the settlement and related costs should be made.
The Partnership shall not incur the cost of the portion of any
insurance which insures any party against any liability as to which such party
is herein prohibited from being indemnified.
For the purposes of Sections 2.07 and 2.08, the term "Affiliates" shall
mean any person performing services on behalf of the Partnership who: (1)
directly or indirectly controls, is controlled by, or is under common control
with the General Partner; or (2) owns or controls 10% or more of the outstanding
voting securities of the General Partner; or (3) is
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an officer, director, employee or agent of the General Partner or of any of the
persons identified in the preceding clauses (1) or (2).
The right of indemnification hereby provided shall not be exclusive of
or affect any other rights to which the General Partner or any Affiliate may be
entitled. Nothing contained in this Section 2.08 shall limit any lawful rights
to indemnification existing independently of this Section.
The right of indemnification provided by this Section 2.08 shall not be
construed to increase the liability of Limited Partners as set forth in Section
1.04.
ARTICLE III - Capital Accounts; Allocations; Distributions
SECTION 3.01. Capital Contributions.
(a) Contribution. On or prior to the date of becoming a
Limited Partner of the Partnership, each Limited Partner shall make the
Capital Contribution in cash as set forth next to his/her name on
Exhibit A. The Capital Contribution of the General Partner shall at all
times be not less than one percent (1%) of the aggregate of all
Capital Contributions of the Partners and the General Partner shall
make any additional Capital Contributions required to maintain such
Capital Contribution of not less than one percent (1%). The aggregate
of all Capital Contributions shall be, and hereby is agreed to be,
available to the Partnership to carry out the purposes and objects of
the Partnership.
(b) Borrowing. Certain Limited Partners (each, a "Borrower")
may be given the opportunity prior to the due date of any Capital
Contribution, to borrow all or any part of such contribution from Sutro
upon such terms as may be offered by Sutro. Such terms may include,
without limitation, the following:
(i) The principal of the loan may accelerate and be
payable earlier than the date due (i) to the extent of any
distributions payable to a Borrower as a Limited Partner under
Section 3.05(a)(i), (ii) upon the termination of the employment
of the Borrower by Sutro and its affiliates, except for a
termination by reason of death or Disability, or, in the sole
discretion of Sutro, normal retirement under the applicable
policies of Sutro and its affiliates, or (iii) upon the
termination of the Borrower's interest in the Partnership.
(ii) The General Partner may have the right to offset
loan obligations due Sutro against distributions or other
payments due the Borrower as a Limited Partner hereunder and to
cause the payment of such loans to the extent of such
distributions or payments.
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(c) Vesting. Notwithstanding the foregoing, the interest of
each individual Limited Partner shall be subject to a vesting
requirement that the Limited Partner remain a Sutro Employee for a
consecutive period of four (4) years after the date of such Limited
Partner's admission to the Partnership. This vesting requirement may be
waived in whole or in part by the General Partner in its discretion and
shall be waived in the event of termination of employment by reason of
death or Disability, or, in the sole discretion of Sutro, normal
retirement under the applicable policies of Sutro and its affiliates.
Upon termination of such employment of a Limited Partner for any reason
within four (4) years from the date of such Limited Partner's admission
to this Partnership, unless the General Partner otherwise determines in
its discretion:
(i) The remaining principal and accrued interest on
any loans owed by a Limited Partner who is a Borrower under
subparagraph (b) hereof shall be immediately due and payable;
(ii) The right of the Limited Partner to any
distributions of assets of the Partnership under Section 3.05
shall terminate; and
(iii) The Limited Partner shall be required to
withdraw from the Partnership in accordance with Section 4.03
and such Limited Partner's interest shall be liquidated under
Section 4.04; provided, however, that the General Partner may
elect instead, in its sole discretion, to purchase the limited
partnership interest of such Limited Partner on equivalent
terms. The proceeds of such liquidation or purchase shall be
applied to payment of the remaining principal and accrued
interest of any loans owed by a Limited Partner who is a
Borrower under subparagraph (b) hereof before any payment or
distribution thereof is made to the Limited Partner.
SECTION 3.02. Capital Accounts. A separate capital account (each, a
"Capital Account" shall be established for each Partner and shall be maintained
in accordance with the rules of Treasury Regulations Section 1.704-1(b)(2)(iv),
and this Section 3.02 shall be interpreted and applied in a manner consistent
therewith. Whenever the Partnership would be permitted to adjust the Capital
Accounts of the Partners pursuant to Treasury Regulations Section
1.704-1(b)(2)(iv)(f) Partnership shall so adjust the Capital Accounts of the
Partners. In any event, the Partnership shall adjust the Capital Accounts of the
Partners annually, and upon the admission of a new Partner or the withdrawal of
an existing Partner, to reflect revaluations of Partnership property in
accordance with Article VIII. Whenever the Capital Accounts of the Partners are
adjusted pursuant to Treasury Regulations Section 1.704-1(b)(2)(iv)(f) to
reflect revaluations of Partnership property, (i) the Capital Accounts of the
Partners shall be adjusted in accordance with Treasury Regulations Section
1.704-1(b)(2)(iv)(g) for allocations of depreciation, depletion, amortization
and gain or loss, as computed for book purposes in accordance with Article VIII,
with respect to such property, and (ii) the Partners' distributive shares of
depreciation, depletion, amortization and gain or
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loss, as computed for tax purposes, with respect to such property shall be
determined so as to take account of the variation between the adjusted federal
income tax basis and book value of such property in the same manner as under
Code Section 704(c).
SECTION 3.03. Deficit Capital Accounts. If upon the liquidation of the
General Partner's interest in the Partnership the General Partner has a deficit
balance in its Capital Account, the General Partner shall contribute to the
Partnership an amount equal to such deficit balance. Any such contribution shall
be made by the General Partner no later than the end of the taxable year of the
Partnership during which such liquidation occurs (or, if later, within ninety
(90) days after such liquidation). This Section 3.03 is intended to comply with
the requirements of Treasury Regulations Section 1.704-1(b)(2)(ii)(b)(3) and
shall be interpreted and applied in a manner consistent therewith.
SECTION 3.04. Allocations.
(a) Book Items. Items of income, gain, deduction and loss, as
computed for book purposes (including any such items resulting from any
revaluation of property under Section 3.02) for any fiscal year or
portion thereof shall be allocated among the Partners pro rata in
proportion to the Capital Account balances of the Partners.
(b) Tax Items. Items of income, gain, deduction and loss, as
computed for federal income tax purposes, shall be allocated in the
same manner as under Code Section 704(c).
(c) Allocations on Withdrawal. If a Limited Partner's interest
in the Partnership is liquidated by the Partnership pursuant to Section
4.04 and the Limited Partner receives less than the amount of the
balance in his/her Capital Account, then the excess of (i) the balance
in his/her Capital Account over (ii) the amount distributed by the
Partnership shall be allocated among all the remaining Partners in
proportion to their Capital Account balances. This provision shall be
applied so as to maintain equality between the Capital Accounts of the
Partners and the amount of Partnership capital reflected on the
Partnership's balance sheet, as computed for book purposes, in
accordance with Treasury Regulations Section 1.704-1(b)(2)(iv)(q).
Further, notwithstanding sections 3.02 and 9.01(b), if a Limited
Partner's interest is purchased by the General Partner pursuant to
Section 3.01 (c)(iii) and the purchase price is less than the balance
of the Capital Account of the Limited Partner, then (i) the excess of
(x) the balance in the Limited Partner's Capital Account over (y) the
amount paid by the General Partner shall be allocated among all the
remaining Partners in proportion to their Capital Account balances and
(ii) the General Partner (and any assignee of the General Partner)
shall have a Capital Account balance with respect to the purchased
interest in the Partnership equal to the purchase price paid by the
General Partner.
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(d) Qualified Income Offset. No allocation shall be made
pursuant to Section 3.04(a) to the extent that it shall cause or
increase a deficit balance in any Limited Partner's Capital Account (in
excess of such Partner's obligation, if any, to restore a deficit in
his/her Capital Account) as of the end of the Partnership taxable year
to which such allocation relates. In making the foregoing
determination, a Limited Partner's Capital Account shall be reduced by
the amounts described in Treasury Regulations Section
1.704-1(b)(2)(ii)(d)(4), (5) and (6). Any Limited Partner who
unexpectedly receives an adjustment, allocation or distribution
described in Treasury Regulations Section 1.704-1(b)(2)(ii)(d)(4), (5)
or (6) shall be allocated items of income and gain in an amount and
manner sufficient to eliminate, to the extent required by the Treasury
Regulations, such deficit balance as quickly as possible. This Section
3.04(d) is intended to comply with the alternate test for economic
effect set forth in Treasury Regulations Section 1.704-1(b)(2)(ii)(d)
and shall be interpreted and applied in a manner consistent therewith.
(e) General Partner Nonrecourse Debt. If a Partner makes a
nonrecourse loan to the Partnership which is "partner nonrecourse debt"
within the meaning of Treasury Regulations Section 1.704-2(b)(4), then
any item of Partnership loss, deduction or Code Section 705(a)(2)(B)
expenditure that is attributable to such debt shall be allocated to
such Partner and appropriate items of income and gain shall be "charged
back" to such Partner. This Section 3.04(e) is intended to comply with
Treasury Regulations Section 1.704-2(I) and shall be interpreted and
applied in a manner consistent herewith.
(f) Curative Allocations. The allocations set forth in
Sections 3.04(d) and 3.04(e) (the "Regulatory Allocations") are
intended to comply with the requirements of Treasury Regulations
Section 1.704-1(b)(2)(ii)(d) and Treasury Regulations Section
1.704-(2)(i), respectively. Notwithstanding any other provisions of
this Section 3.04 (other than the Regulatory Allocations), the
Regulatory Allocations shall be taken into account in allocating other
items of income, gain, deduction and loss among the Partners, pursuant
to Sections 3-04(a) and 3.04(c), so that, to the extent possible, the
net amount of such allocations of other items and the Regulatory
Allocations to each Partner shall be equal to the net amount that would
have been allocated to each such Partner if the Regulatory Allocations
had not occurred.
SECTION 3.05. Distributions to Partners.
(a) Distributions to Partners.
(i) It shall be within the sole discretion of the
General Partner as to whether, when and in what amount a
distribution of cash or other assets of the Partnership shall
be made. Such distributions (other than a distribution made in
connection with the withdrawal of a Partner under Article IV)
shall be made to
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all of the Partners in the ratio that their respective Capital
Accounts bear to one another at the time of the distribution.
(ii) The General Partner may, but shall not be
required to, make annual distributions to each Partner in an
amount which the General Partner estimates is sufficient to
pay federal and state income taxes attributable to allocations
under Section 3.04(b). Notwithstanding Section 3.05(a)(i), any
distributions made pursuant to this Section 3.05(a)(ii) shall
be made to the Partners in proportion to the excess of
cumulative income and gain over cumulative deductions and
losses allocated to each of the Partners pursuant to Section
3.04(b).
(b) Application of Distributions. To the extent that there is
any amount due to Sutro from a Limited Partner who is a Borrower under
paragraph 3.01(b), each distribution to such Borrower (except a
distribution under subsection(a)(ii) hereof) shall be applied in
payment of such obligation of such Borrower.
(c) Repayment of Distributions. Partners shall be required to
repay Partnership distributions to the extent provided in the CRLPA.
SECTION 3.06. No Interest on Capital. No Partner shall be entitled to
receive interest from the Partnership on his/her Capital Account.
ARTICLE IV -- Withdrawal of Limited Partner
SECTION 4.01. Withdrawal of Limited Partner. Except as otherwise
provided in Section 4.03 hereof, no Limited Partner shall be permitted to
withdraw from the Partnership until his interest in the Partnership is vested
under paragraph 3.01(c) and then only with the approval of the General Partner,
which approval may be withheld if the General Partner does not believe that such
withdrawal is in the best interests of the other Limited Partners, whether
because of the cash position of the Partnership, the undesirability of
liquidating any of the investments of the Partnership, or otherwise. The
following provisions shall govern with respect to any withdrawals approved by
the General Partner:
(a) No such withdrawal shall be made except as of the last day
of a fiscal year of the Partnership;
(b) Partial withdrawals shall not be permitted and a Partner
desiring to withdraw must withdraw his/her entire interest in the
Partnership;
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(c) The Partner desiring to withdraw must notify the General
Partner in writing at least sixty (60) days prior to the close of the
fiscal year in which such Partner wishes to effect his/her withdrawal;
and
(d) The General Partner may, if necessary to accommodate a
request for withdrawal by a Limited Partner, attempt to obtain a
purchaser of the whole or a part of such Limited Partner's interest.
SECTION 4.02. Legal Representatives. In the event any Limited Partner
shall die or shall be declared incompetent or insane or shall be adjudicated a
bankrupt, the legal representative of such Limited Partner shall upon written
notice to the General Partner of the happening of any of such events become an
assignee of such Limited Partner's interest subject to all of the terms of this
Agreement as then in effect. Such legal representative may not withdraw from the
Partnership except in accordance with Section 4.01. If the General Partner does
not approve withdrawal of the interest of such legal representative, the General
Partner will use its best efforts, without legal obligations, to find another
person, suitable to the General Partner, willing to assume the Partnership
interest of such legal representative.
SECTION 4.03. Mandatory Withdrawal. Unless the General Partner
otherwise determines, a Limited Partner who was a Sutro Employee at the time he
or she became a Limited Partner shall be required to withdraw from the
Partnership upon the termination of his/her employment by Sutro and its
affiliates prior to the vesting of his/her interest under paragraph 3.01(c),
except for a termination by reason of death or Disability, or, in the sole
discretion of Sutro, normal retirement under the applicable policies of Sutro
and its affiliates, and such Limited Partner's Partnership interest shall be
liquidated under Section 4.04 or purchased by the General Partner under Section
3.01(c)(iii).
SECTION 4.04. Liquidating Share. In the event any Limited Partner shall
withdraw or be required to withdraw in accordance with the provisions of this
Article IV, there shall be paid to such Limited Partner or his/her legal
representative within 60 days after the last day of the fiscal year of the
Partnership which constitutes the effective date of withdrawal, an amount equal
to such Partner's positive Capital Account balance as of the effective date of
withdrawal; provided, however, that in the event of a mandatory withdrawal under
Section 4.03, such Partner shall be paid an amount equal to the lesser of (i)
his/her Capital Contribution(s) less distributions paid to such Partner prior to
the withdrawal date, other than distributions paid under Section 3.05(a)(ii), or
(ii) his/her positive Capital Account balance.
SECTION 4.05. Cessation of Participation. From and after the effective
date of withdrawal of a Partner from the Partnership under this Article IV, no
interest shall be payable on such Partner's interest in the Partnership to the
date of payout.
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ARTICLE V - Transfer of Partnership Interests
SECTION 5.01. Assignability of Interests.
(a) Subject to the provisions of Section 4.02 hereof, the
interest of a Limited Partner shall not be assignable without the prior
written consent of the General Partner. No assignment shall be binding
upon the Partnership until the General Partner receives an executed
copy of such assignment in form and substance satisfactory to the
General Partner. The assignee of such interest may become a substituted
Limited Partner only upon the terms and conditions of Sections 5.02 and
9.01.
(b) The interest of the General Partner shall not be
assignable; provided, however, that in no event shall the interest of
the General Partner be reduced below a 1% interest in the Capital
Accounts of the Partners and that such interest may be assigned to a
successor to all or substantially all of the business of the General
Partner the Voting Control of which is held by those persons then
holding, Voting Control of the General Partner upon (i) the execution
by the General Partner of a written assignment, the execution by the
successor of this Agreement, and the written assumption by the
successor of the obligations of the General Partner hereunder; and (ii)
the receipt by the Partnership of an opinion of counsel that such
assignment and assumption will not result in the Partnership being
classified as an association for Federal income tax purposes. In the
event of such assignment, the successor shall become the General
Partner hereunder, and the predecessor and successor General Partner
shall cause the execution of any necessary papers including, without
limitation, an amendment to the Certificate of Limited Partnership to
record the substitution of the successor as General Partner.
SECTION 5.02. Substituted Limited Partners. No Limited Partner shall
have the right to substitute an assignee as a Limited Partner in his/her place.
The General Partner shall have the right, in its discretion, to admit as a
substituted Limited Partner any person, firm or corporation acquiring a
partnership interest by assignment from another Limited Partner or from the
General Partner. The admission of an assignee as a substituted Limited Partner
shall be conditioned upon the assignee's written assumption of all obligations
of the assigning Limited Partner and execution of this Agreement as a Limited
Partner. Upon acceptance of a substituted Limited Partner, the General Partner
shall forthwith amend the Certificate of Limited Partnership and any other
necessary papers to show the substitution of such assignee in place of the
assigning Limited Partner. The General Partner's failure or refusal to admit an
assignee as a substituted Limited Partner shall not affect the right of such
assignee to receive the share of profits or other distribution or compensation
to which its assignor would otherwise be entitled.
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SECTION 5.03. Obligations of Assignee. Any assignee, irrespective of
whether such assignee has accepted and adopted in writing the terms and
provisions of this Agreement, shall be deemed by the acceptance of such
assignment to have agreed to be subject to the terms and provisions of this
Agreement in the same manner as its assignor.
ARTICLE VI - Duration and Termination of Partnership
SECTION 6.01. Duration. Except as provided in Section 6.03, the
Partnership shall continue for a period of twenty (20) years from and after the
date hereof, provided, however, that with the written consent of the General
Partner and Limited Partners representing at least sixty-six and two-thirds
percent (66 2/3%) of the combined Capital Accounts of all the Limited Partners,
the Partnership may be terminated at any time after its first full fiscal year.
SECTION 6.02. Withdrawal of Limited Partner. If any Limited Partner
shall withdraw, die, be declared incompetent or insane, or be adjudicated a
bankrupt, such event shall not cause the dissolution or termination of the
Partnership, and the Partnership shall continue until terminated pursuant to
Section 6.01 or Section 6.03.
SECTION 6.03. Withdrawal of General Partner.
(a) The General Partner may withdraw at any time after March
21, 2001 by giving 90 days prior written notice to the other Partners,
If Limited Partners whose Capital Accounts constitute in excess of 66
2/3% of all Capital Accounts consent in writing executed within such
90-day period to the continuation of the Partnership and elect a new
General Partner, the Partnership shall not terminate but shall continue
in existence as though no such withdrawal or filing had occurred,
except that the new General Partner shall be substituted for the former
General Partner. Any Limited Partner who does not consent to such
continuation shall have the right to withdraw by giving notice within
90 days after having been notified of the continuation of the
Partnership and shall be paid in the manner set forth in Section 4.04.
(b) In the event that the Limited Partners shall have
determined to continue the Partnership, the former General Partner (or
its representative, successors or assigns) shall become a Limited
Partner of the Partnership upon the effective date of such continuation
to the extent of its then interest in the Partnership as a General
Partner. Thereafter, except as otherwise provided below, such former
General Partner (or its representative) shall be treated as a Limited
Partner for all purposes of this Agreement, shall be deemed to have
fully vested in its interest as a Limited Partner for purposes of
Section 3.01(c) hereof shall have all of the rights and obligations of
a Limited Partner hereunder, including the right to receive allocations
and distributions on the same basis as all other Limited Partners, and
shall not be entitled to receive any further allocations or
distributions to which the General Partner is entitled hereunder.
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Upon becoming a Limited Partner, such former General Partner's Capital
Account and Capital Commitment shall initially be the same as they were
on the effective date of such continuation. Once the General Partner
ceases to be such for whatever reason and becomes a Limited Partner
hereunder, such former General Partner will no longer be personally
liable with respect to Partnership liabilities arising out of events
and transactions occurring after its termination as General Partner
(i.e., its Capital Account will be debited for its share, if any, as
Limited Partner of the losses and expenses arising out of such
liabilities but it will not be required to make additional
contributions to the Partnership to satisfy such liabilities). However,
a former General Partner will remain personally liable for all
Partnership liabilities arising out of events and transactions
occurring prior to such former General Partner's termination as General
Partner (i.e., its Capital Account will be debited its share of losses
and expenses arising out of such liabilities and it will be required to
make additional contributions to the Partnership to the extent of a
deficit in its Capital Account due to such liabilities arising out of
events and transactions occurring prior to its termination).
SECTION 6.04. Liquidation. Upon the termination of the Partnership the
General Partner, or if there be no General Partner, then a person selected by
Limited Partners representing in excess of fifty percent (50%) of the combined
Capital Accounts of all Limited Partners, shall act as the liquidator (or
liquidators) of the Partnership with full power and authority to:
(a) sell, at such prices and upon such terms as the liquidator
in its sole discretion may deem appropriate, any or all of the
Securities, properties and assets of the Partnership, provided that
such sales shall only be made for cash and, when possible, consummated
within ninety (90) days after the date of termination; and provided
further that the liquidator shall not deal directly or indirectly with
the Partnership for its own account without the approval in writing of
all of the Limited Partners; and
(b) within ninety (90) days after the date of termination or
as soon thereafter as possible, effect distribution of the properties
and assets of the Partnership in cash or in kind in the manner set
forth in Section 6.05.
SECTION 6.05. Distribution Upon Termination. Upon liquidation of the
Partnership, the assets of the Partnership remaining after the payment, or
reasonable provision therefor, of all Partnership liabilities (and the
establishment of reasonable reserves for contingent liabilities) shall be
distributed to the Partners in proportion to and to the extent of the positive
balances of their respective Capital Accounts. This Section 6.05 is intended to
comply with the requirements of Treasury Regulations Section
1.704-1(b)(2)(ii)(b)(2) and shall be interpreted and applied in a manner
consistent therewith.
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ARTICLE VII - Records; Reports to Partners
SECTION 7.01. Financial Records. The General Partner shall keep at the
principal office of the Partnership books of account in which shall be entered
fully and accurately the transactions of the Partnership and financial records
appropriate to the business of the Partnership, as well as the following:
(a) a current list of the full name and last known business or
residence address of each Partner set forth in alphabetical order
together with the contribution and the share in profits and losses of
each Partner;
(b) a copy of the Certificate of Limited Partnership, together
with executed copies of any powers of attorney pursuant to which any
certificate has been executed;
(c) copies of the Partnership's Federal, state, and local
income tax or information returns and reports, if any, for the six most
recent taxable years;
(d) copies of this Agreement and all amendments hereto;
(e) financial statements of the Partnership for the six most
recent fiscal years; and
(f) the Partnership's books and records as they relate to the
internal affairs of the Partnership for at least the current and past
three fiscal years.
SECTION 7.02. Annual Reports. As soon as reasonably practicable after
the end of each taxable year of the Partnership, the General Partner shall
prepare and mail to each Partner and to each former Partner who withdrew during
the applicable taxable year or its legal representative, such information as is
necessary to enable such Partner or former Partner or the legal representative
of such former Partner to prepare its respective Federal and state income tax
returns. In addition, as soon as reasonably practicable after the end of each
fiscal year of the Partnership, the General Partner shall prepare and mail to
each Partner and to each former Partner who withdrew during the applicable
fiscal year or to its legal representative a report including the following:
(a) such Partner's Capital Account balance as of the close of
such fiscal year;
(b) the sum of the Capital Account balances as of such date of
all the Partners;
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(c) statement of assets and liabilities of the Partnership at
the end of such fiscal year;
(d) profit and loss statement and statement of changes in
financial position for such fiscal year;
(e) statement of holdings of Securities of the Partnership;
(f) a description of the nature of each of the Partnership's
investments, the cost thereof and the valuation thereof established
pursuant to Article VIII; and
(g) such other financial information and documents as the
General Partner deems appropriate, as a Limited Partner may reasonably
request, or as is required by this Agreement and any amendments hereto.
The financial statements referred to above shall be accompanied by the
report thereon, if any, of the independent accountants engaged by the
Partnership or, if there is no such report, by the certificate of the General
Partner that such financial statements were prepared without audit from the
books and records of the Partnership.
SECTION 7.03. Inspection. A Limited Partner shall have the right at
reasonable times to inspect the books and records of the Partnership and to
discuss its affairs with the agents of the General Partner.
SECTION 7.04. Tax Returns. The General Partner will file all Federal,
state or other income tax returns required of the Partnership and will supply to
each Limited Partner such Partner's Form K-1 submitted with the Partner's
Federal tax return. Upon the request of any Partner, subject to the approval of
the General Partner, the Partnership shall elect, pursuant to Code Section 754,
to adjust the basis of Partnership property as permitted and provided in Code
Sections 734 and 743.
ARTICLE VIII - Valuation
SECTION 8.01. Valuation of Partnership Net Worth. In determining the
net worth of the Partnership, the value of any Partnership asset, the Capital
Accounts of the Partners, the value of any distribution, or in determining value
for any other purpose under this Agreement, the provisions of this Article VIII
shall apply.
SECTION 8.02. Valuation Date. Valuation shall be determined by the
General Partner as of the close of business on the Market Day preceding the last
day of each fiscal year of the Partnership or as of the close of business on the
date with respect to which valuation is to be taken, or if such day is not a
Market Day, then on the Market Day next preceding such
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date, as the case may be. A Market Day shall be a day on which the New York
Stock Exchange is open for regular trading. If a valuation is taken other than
in connection with the annual reports described in Section 7.02, the General
Partner shall give notice of such valuation to the Limited Partners promptly
after it is determined.
SECTION 8.03. Valuing Securities and Other Assets. The following
provisions shall apply in valuing the assets of the Partnership:
(a) Listed Securities which are not restricted as to
saleableness or transferability shall be valued at the closing price as
of the Valuation Date. If any listed Security was not traded on such
date, then the mean of the closing high bid and low asked prices as of
the close of business on such date shall be used.
(b) Unlisted securities which are readily marketable shall be
valued at the mean of the closing bid and asked prices as of the
Valuation Date.
(c) Securities, whether listed or unlisted, for which market
quotations are available, but which are restricted as to saleableness
or transferability, shall be valued as provided in (a) and (b) above,
less a discount of from ten percent (10%) to twenty-five percent (25%)
of the value thereof as determined in good faith by the General
Partner. In determining the amount of such discount the General Partner
shall give consideration to the nature and length of such restriction
and the relative volatility of the market price of such Security.
(d) Securities for which market quotations are not readily
available and all other assets of the Partnership shall be valued at a
fair value as determined in good faith by the General Partner.
(e) Interests in other partnerships shall be valued by each
partnership at the times and upon the terms provided in its partnership
agreement unless the General Partner of this Partnership otherwise
determines.
(f) Liabilities shall include, in addition to those recorded
on the books of the Partnership, such other accrued or contingent
liabilities as shall be determined in accordance with generally
accepted accounting principles.
(g) In determining the value of the interest of any Partner in
the Partnership, neither the goodwill nor the right to use the firm
name or trade name of the Partnership shall be considered as an asset
of the Partnership.
ARTICLE IX - Miscellaneous
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SECTION 9.01. Admission of Limited Partners. Except as provided in this
Section, no new Limited Partner shall be admitted to the Partnership and no
additional contribution of capital by a Limited Partner to the Partnership shall
be accepted.
(a) Additional Limited Partners. Additional Limited Partners
may be admitted in the discretion of the General Partner as of the
first day of July or the first day of January of any year and the
interest of such additional Limited Partner in the Partnership shall be
established by creating a Capital Account for such additional Limited
Partner as of that day in an amount equal to the contribution made by
such additional Limited Partner to the Partnership.
(b) Substituted Limited Partners. Substituted Limited Partners
may also be admitted in the discretion of the General Partner by
assignment or transfer of the interest of a Limited Partner or the
General Partner in accordance with Article V or Sections 3.01(c)(iii),
4.01(d) or 4.02, in which case the substituted Limited Partner will
take over the Capital Account of his assignor or transferor.
(c) Procedure. The admission of a new Limited Partner, whether
an additional Limited Partner or a substituted Limited Partner, shall
be accomplished in accordance with the following procedures: Each
Limited Partner so admitted shall (i) sign a counterpart copy of this
Agreement, which shall be accepted by its execution by the General
Partner, as well as any other documents required by the General
Partner, and (ii) make payment of his/her Capital Commitment, or
purchase price in the case of a substituted Limited Partner, as
determined by the General Partner, and (iii) an amendment to the
Partnership's Certificate of Limited Partnership shall be filed to
reflect such addition. Each such new Limited Partner shall thereafter
be entitled to and subject to all the rights and liabilities of Limited
Partners as set forth herein.
SECTION 9.02. Disputed Matters. Any controversy or dispute arising out
of this Agreement, interpretation of any of the provisions hereof, or the
actions of the General or Limited Partners hereunder shall be submitted to
arbitration before the National Association of Securities Dealers, Inc. ("NASD")
under the rules then obtaining of the NASD. If the NASD refuses to accept
jurisdiction of the matter, then the dispute shall be submitted to arbitration
before the New York Stock Exchange under the rules then obtaining of said
Exchange. Any such arbitration shall be held in San Francisco, California, and
judgment upon any award thus obtained may be entered in any court having
jurisdiction thereof. In any such arbitration each party to the arbitration
shall bear its own expenses, including expenses of attorneys, financial experts
and other witnesses; and any arbitration fees and expenses of the arbitrators
shall be divided equally between the disputing parties.
SECTION 9.03. Payments in Kind. In the event the Partnership is
required or elects to make a payment or other distribution to or on behalf of
any Partner or to the legal representative, liquidator, or receiver of any
deceased, incompetent, insane or bankrupt
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Partner, the General Partner may (but shall not be obligated to) make such
payment or distribution, either wholly or partially, in Securities or other
property of the Partnership. The amount of any such payment or distribution
shall be deemed to be equal to the value of such securities or other property,
as determined under Article VIII, as of the effective date of their distribution
to or on behalf of the Partner or the Partner's legal representatives and the
decisions of the General Partner with respect to in-kind payments, including
decisions with respect to selection, apportionment and valuation of Securities
or other property, shall be conclusive and binding upon all Partners.
SECTION 9.04. General. This Agreement: (a) shall be binding on the
executors, administrators, estates, heirs and legal successors of the Partners;
(b) shall be governed by and construed in accordance with the laws of the State
of California; (c) may be executed in more than one counterpart as of the day
and year first above written; provided, however, that each separate counterpart
shall have been executed by the General Partner; and (d) contains the entire
Agreement among the Partners relating to the subject matter hereof. The waiver
of any of the provisions, terms or conditions contained in this Agreement shall
not be considered as a waiver of any of the other provisions, terms or
conditions hereof.
SECTION 9.05. Notices.
(a) To the Partners. Any notice to be given hereunder by the
Partnership to any Partner shall be in writing and signed by the
General Partner. Any such notice shall be conclusively deemed to have
been given if either delivered in person to such Partner or mailed by
registered or certified mail to such Partner at such Partner's address
set forth in Exhibit A. Any Partner may change their address for notice
by written notice to the Partnership.
(b) To the Partnership. Any notice to be given hereunder to
the Partnership shall be in writing and signed by the Partner giving
notice. Any such notice shall be conclusively deemed to have been given
if delivered in person or mailed by registered or certified mail,
postage prepaid to the General Partner at its address set forth in
Exhibit A, or such other address as the General Partner may from time
to time designate by notice to all Partners.
SECTION 9.06. Execution of Certificate of Limited Partnership and Other
Documents. The General Partner agrees to prepare and file and the Partners agree
to execute a certificate of limited partnership, any amendments thereto, and
such other instruments, documents and papers as the General Partner deems
necessary or appropriate to carry out the intent of this Agreement, and to take
such other action as the General Partner deems appropriate to maintain the
Partnership's status as a Limited Partnership under the CRLPA.
SECTION 9.07. Force Majeure. Whenever any act or thing is required of
the Partnership hereunder within any specified period of time, the Partnership
shall be entitled to
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such additional period of time to do such acts or things as shall equal any
period of delay resulting from causes beyond the reasonable control of the
Partnership, including, without limitation, bank holidays, actions of
governmental agencies, closing the New York Stock Exchange at times other than
normal closing dates, and financial crises of a nature materially affecting the
purchase and sale of Securities.
SECTION 9.08. Amendments. Except as otherwise specifically provided
herein, the terms and provisions of this Agreement may be modified or amended at
any time and from time to time only with the written consent of (1) the General
Partner and (2) Limited Partners (excluding Sutro) representing in excess of
fifty percent (50%) of the combined Capital Accounts of all Limited Partners
insofar as is consistent with the laws governing this Agreement; provided,
however, that without the specific written consent of each Partner adversely
affected thereby no such modification or amendment shall (i) increase the
obligation of a Limited Partner beyond that set forth in Section 1.04, (ii)
reduce the Capital Account of any Partner or its rights to distribution and
withdrawal with respect thereto; or (iii) amend Section 1.05 to permit
Partnership activities which would subject a Limited Partner to Federal or state
taxation which such Partner would not be subject to in the absence of such
activity. Without unanimous consent no amendment or modification may be made (x)
which would cause the Partnership to cease to be a Limited Partnership under
applicable state law or (y) which would amend this Section 9.08.
SECTION 9.09. Headings. Article, Section, Paragraph and Subparagraph
headings are for convenience of reference only, and are not part of this
Agreement, and shall not be considered in interpreting this Agreement.
SECTION 9.10. Power of Attorney. Each Limited Partner does hereby
constitute and appoint Fergus ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇, and
each of them, its true and lawful representative, in its name, place and stead,
to make, execute, sign, acknowledge, deliver and file all such instruments,
documents and certificates which may from time to time be required by the laws
of the United States of America, the State of California, or any other state in
which the Partnership shall determine to do business, or any political
subdivision or agency thereof, to effectuate, implement and continue the valid
and subsisting existence of the Partnership, including, without limitation, a
Certificate of Limited Partnership and amendments thereto and any such
certificate or amendment filed for the purpose of admitting the undersigned as
Limited Partners of the Partnership.
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IN WITNESS WHEREOF, the General Partner and the Limited Partners have
hereunto set their hands and seals as of the date first set forth above.
GENERAL PARTNER
The Sutro Group
By:____________________________________
LIMITED PARTNER
_______________________________________
_______________________________________
(Print Name)
S.S.#__________________________________
Allocation Accepted: $
=================
STATE OF )
) ss:
COUNTY OF )
Then personally appeared before me __________________________, known to me,
and acknowledged the same to be his/her free act and deed.
_______________________________________
Notary
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