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Exhibit 10.44
GENERAL PARTNERSHIP AGREEMENT
THIS GENERAL PARTNERSHIP AGREEMENT (this "Agreement") is effective by
and between the persons who become partners hereto from time to time by
executing a General Partner Execution Page substantially in the form of Exhibit
A hereto (collectively, the "Partners" and individually, a "Partner").
W I T N E S S E T H:
WHEREAS, the Partners are forming a general partnership (the
"Partnership") in, and in accordance with the laws of, the state of Wisconsin
for the purpose of investing from time to time in debt and equity securities
pursuant to the terms and conditions set forth herein; and
WHEREAS, the Partners have joined the Partnership to allow
them to combine their resources; to make investments of sufficient size so that
the Partnership's economic bargaining power enables it to negotiate the terms
upon which investments will be made and to exercise significant influence over
decisions by all investors in connection with such investments; to pool the
available expertise of the Partners; and to increase the liquidity of the
Partners with respect to the interests in the Partnership's investments by
providing for the transfer thereof on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the
terms and conditions contained herein, the Partners hereby agree as follows:
1. DEFINED TERMS. For purposes of this Agreement, capitalized
terms shall have the meanings assigned to them in Exhibit B hereto.
2. FORMATION OF PARTNERSHIP. The Partnership and its
operations shall commence as of the date of this Agreement.
3. NAME. The name of the Partnership shall be "CGRM
INVESTMENT PARTNERSHIP."
4. TERM. The term of the Partnership shall continue at will
until the Partnership is terminated pursuant to the provisions hereof.
5. PURPOSE. The purpose of the Partnership shall be to provide
for the investment of funds by the buying and selling of securities of every
kind and description.
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6. TITLE TO PARTNERSHIP PROPERTY. All property owned by the
Partnership shall be owned by the Partnership as an entity, and no partner,
individually, shall have any ownership of such property. The Partnership may
hold any of its assets in its own name, in the name of a Pool, or in the name of
its nominee, which nominee may be one or more individuals, partnerships, trusts
or other entities.
7. POOLS, UNITS AND CONTRIBUTIONS OF CAPITAL.
7.1. INVESTMENT POOLS. The Investment Committee shall
establish one or more separate Pools for the Partnership's assets, based upon
such criteria as are established by it in its sole discretion. The assets and
liabilities of each Pool shall be segregated from those of any other Pool and be
separately managed by the Investment Committee, and the income, gains,
deductions and losses from each Pool shall be separately determined and
accounted for according to the terms of this Agreement.
7.2. PARTNERSHIP UNITS. The interests of the Partners in the
Pools shall be divided into Units of One Thousand Dollars ($1,000) each
representing ownership of interests in the capital and assets of the given Pool.
There shall be no fractional Units.
7.3. ADDITIONAL CONTRIBUTIONS TO CAPITAL. Upon the acquisition
of a Security pursuant to ARTICLE 18 below, the Investment Committee shall
assign the Security to a Pool, whether previously existing or newly created, and
issue Units in such Pool to each Partner who made an Additional Contribution to
Capital with respect to such Security based on the amount so contributed.
7.4. INTEREST ON CAPITAL. No interest shall be paid on any
capital contribution to the Partnership.
7.5. FISCAL PERIOD; CAPITAL CONTRIBUTION DATES. Additional
Contributions to Capital shall be permitted in accordance with ARTICLE 18 below.
A Fiscal Period for a Pool shall begin on each day on which capital
contributions are permitted with respect to such Pool and shall end on the day
prior to the next day on which capital contributions are permitted and on the
end of each fiscal year.
8. CURRENT INCOME CHARACTERIZATION AND ACCOUNTS.
8.1. CHARACTERIZATION OF CURRENT INCOME. The Accrued Current
Income and Cash Current Income of the Partnership with respect to each Pool
shall be divided by Income Type as shall be
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determined from time to time by the Investment Committee. The Partnership shall
account for all Current Income separately by Income Type on the books of the
Partnership for each Pool and as specifically provided in this Agreement.
8.2. CURRENT INCOME ACCOUNTS.
(a) ESTABLISHMENT BY INCOME TYPE. A separate Income
Account shall be maintained for each Partner participating in the
given Pool for each Income Type earned by such Pool for each Fiscal
Period in which he or she held Units of such Pool.
(b) ADJUSTMENTS. The Income Accounts of a Partner
shall be adjusted at the end of each Fiscal Period as follows:
(i) ACCRUED CURRENT INCOME. There shall be
credited the share of the Accrued Current Income for the
Fiscal Period of each Income Type allocable to such Partner in
accordance with SUBSECTION 10.1(A) below.
(ii) CASH CURRENT INCOME. There shall be debited
the amount of Cash Current Income for the Fiscal Period of
each Income Type distributed to such Partner with respect to
the Fiscal Period in accordance with SUBSECTION 10.1(B) below.
(iii) IN-KIND DISTRIBUTIONS. There shall be
debited the amount, by Income Type, of Accrued Current Income
payable, if any, with respect to Securities distributed in
kind to the Partner with respect to such Fiscal Period
pursuant to SECTION 20.4 below.
9. UNREALIZED GAIN AND UNREALIZED LOSS ACCOUNTS.
9.1. UNREALIZED GAIN ACCOUNT.
(a) ESTABLISHMENT. A separate Unrealized Gain Account
shall be maintained for each Partner with respect to each Pool in
which he or she participates.
(b) ADJUSTMENTS. Each Unrealized Gain Account of a
Partner shall be adjusted at the end of each Fiscal Period as
follows:
(i) UG ADJUSTMENT. There shall be credited an
amount equal to the UG Adjustment for the Fiscal
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Period for the given Pool multiplied by the Partner's Unit
Percentage for such Pool in such Fiscal Period.
(ii) REALIZED GAIN. There shall be debited the
amount of Realized Gain, if any, allocated to the Partner for
such Pool pursuant to SECTION 10.4 below.
(iii) REALIZED LOSS. There shall be credited an
amount equal to the Realized Loss, if any, allocated to the
Partner for such Pool pursuant to SECTION 10.4 below.
(iv) UNREALIZED APPRECIATION. There shall be
debited the amount of Unrealized Appreciation on any Gain
Securities distributed in kind to the Partner from such Pool
with respect to such Fiscal Period pursuant to ARTICLE 20
below.
(v) ALLOCATIONS AWAY. There shall be debited an
amount equal to Realized Gain, if any, allocated away from the
Partner pursuant to SUBSECTION 10.4(C) below in connection
with a sale of Units in the Pool by another Partner in the
Fiscal Period.
9.2.UNREALIZED LOSS ACCOUNT.
(a) ESTABLISHMENT. A separate Unrealized Loss Account
shall be maintained for each Partner with respect to each Pool in
which he or she participates.
(b) ADJUSTMENTS. Each Unrealized Loss Account of a
Partner shall be adjusted at the end of each Fiscal Period as
follows:
(i) UL ADJUSTMENT. There shall be credited an
amount equal to the UL Adjustment for the Fiscal Period for
the given Pool multiplied by the Partner's Unit Percentage
for such Pool in such Fiscal Period.
(ii) REALIZED LOSS. There shall be debited the
amount of Realized Loss, if any, allocated to the Partner
for such Pool pursuant to SECTION 10.4 below.
(iii) REALIZED GAIN. There shall be credited an
amount equal to the Realized Gain, if any, allocated to the
Partner for such Pool pursuant to SECTION 10.4 below.
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(iv) UNREALIZED DEPRECIATION. There shall be debited
the amount of Unrealized Depreciation on any Loss Securities
distributed in kind to the Partner from such Pool with respect
to such Fiscal Period pursuant to ARTICLE 20 below.
(v) ALLOCATIONS AWAY. There shall be debited an
amount equal to Realized Loss, if any, allocated away from the
Partner pursuant to SUBSECTION 10.4(C) below in connection
with a sale of Units in the Pool by another Partner in the
Fiscal Period.
9.3. TIMING. Whenever this Agreement makes reference to a
Partner's balance in his or her Unrealized Gain Account (or Unrealized Loss
Account) "as of the end of a Fiscal Period," such balance shall be determined
after adjustments for the Fiscal Period as provided in PARAGRAPHS 9.1(B)(I) and
9.2(B)(I), but before adjustments for the Fiscal Period as provided in
PARAGRAPHS 9.1(B)(II), (III), (IV), AND (V) and 9.2(B)(II), (III), (IV), AND
(V), respectively.
10. ALLOCATIONS AND DISTRIBUTIONS. All items of income,
deduction, loss and gain shall be allocated and all distributions of cash (other
than pursuant to a dissolution of the Partnership) shall be made to the Partners
in accordance with the following provisions:
10.1. CURRENT INCOME.
(a) ALLOCATIONS FOR ACCOUNT PURPOSES. The Accrued
Current Income of the Partnership for each Pool in each Fiscal
Period shall be allocated for account maintenance purposes by Income
Type among the Partners in proportion to their respective Unit
Percentages in such Pool for such Fiscal Period.
(b) CASH DISTRIBUTIONS. An amount of cash equal to the
Cash Current Income of the Partnership received during each Fiscal
Period from each Pool shall be distributed to the Partners
participating in such Pool as follows:
(i) POSITIVE INCOME ACCOUNTS. First, by Income Type
to those Partners with positive balances in Income Accounts of
the respective Income Types from such Pool with respect to
prior Fiscal Periods in the chronological order thereof, for
each such Fiscal Period in proportion to and to the extent of
such positive balances for that Period.
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(ii) PRO RATA. Second, the excess, if any, by Income
Type to the Partners in proportion to their respective Unit
Percentages in such Pool.
(c) DISTRIBUTIONS TO SELLING PARTNERS. There shall be no
special distributions to Selling Partners with respect to their
Income Accounts. In the event a Partner sells all of his Units in a
Pool or withdraws entirely from the Partnership and has a remaining
balance in his or her Income Account for such Pool as of the end of
the Fiscal Period of Sale, such Partner shall be considered to have
retained an income interest in the Partnership and be entitled to
distributions of Cash Current Income received and, in the case of
write-downs, allocations of Accrued Current Income adjustments made
in subsequent Fiscal Periods by Income Type pursuant to SUBSECTIONS
10.1(A) AND (B) above until the balance in each of his or her Income
Accounts by Income Type, as adjusted in accordance with SUBSECTION
8.2(B) above, has been reduced to zero.
(d) ALLOCATIONS FOR TAX PURPOSES. For tax purposes,
taxable and nontaxable Current Income of the Partnership shall be
allocated by Income Type among the Partners in accordance with the
amounts of Cash Current Income that is distributed to the Partners
with respect to a Fiscal Period.
10.2. EXPENSES.
(a) INVESTMENT MANAGEMENT EXPENSE. Investment Management
Expenses shall be deemed to have been incurred in the Fiscal Period
to which they would be chargeable under the accrual method of
accounting for purposes of charging the Partners therefor. All
Investment Management Expenses for a Pool in a Fiscal Period shall
be allocated and charged to the Partners in proportion to their Unit
Percentages in such Pool for the Fiscal Period. Investment
Management Expenses paid by the Partnership shall be treated as
distributions to the Partners, in each case to the extent of such
expenses charged to him.
(b) TRANSACTION COSTS. Transaction Costs shall be treated
as increases or decreases, as the case may be, in the acquisition
costs or proceeds from disposition of Securities.
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10.3. DISTRIBUTIONS OF GAIN AND LOSS. Distributions of
proceeds of any sale, exchange or other disposition of Securities shall be made
pursuant to SECTION 20.4 below.
10.4. ALLOCATIONS OF GAIN AND LOSS.
(a) GENERAL ALLOCATIONS. Subject to the special
allocation provisions of SUBSECTIONS 10.4(B) AND (C) below, the
Realized Gain or Realized Loss or both, if any, from each Pool for
each Fiscal Period shall be allocated pursuant to this SUBSECTION
10.4(A).
(i) REALIZED GAINS. Realized Gains shall be
allocated to those Partners participating in such Pool who had
positive balances in their Unrealized Gain Accounts for such
Pool as of the end of such Fiscal Period to the extent of and
in proportion to such positive balances.
(ii) REALIZED LOSSES. Realized Losses shall be
allocated to those Partners participating in such Pool who had
negative balances in their Unrealized Loss Accounts for such
Pool as of the end of such Fiscal Period to the extent of and
in proportion to such negative balances.
(b) INITIAL PRIORITY ALLOCATION OF GAINS AND LOSSES TO
SELLING PARTNERS. Notwithstanding SUBSECTION 10.4(A), in the event
one or more Partners has a balance in a Redemption UGA or Redemption
ULA as of the end of the Fiscal Period (including Partners electing
to sell all or a portion of their Units in a Pool as of the last day
of such Fiscal Period), there shall be an Initial Priority
Allocation of the Partnership's Realized Gain and Realized Loss from
such Pool for such Fiscal Period, to be made in the following
manner:
(i) REALIZED GAIN. Realized Gain from such Pool
shall be allocated:
(A) first to any Partner who sold all of his
or her Units in a Pool in any preceding Fiscal Period
and carried over a positive balance in such Partner's
Redemption UGA or Redemption ULA to the current Fiscal
Period;
(B) next to any Partner who sells all or a
portion of his or her Units in a Pool as of the end of
the current Fiscal Period and would
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otherwise carry over a positive balance in such
Partner's Redemption UGA or Redemption ULA; and
(C) the remainder among all Partners
participating in such Pool in the manner set forth in
SUBSECTION 10.4(A) above after adjusting the Selling
Partner's Unit Percentage in such Pool and Unrealized
Gain Account to reflect such sales and the allocations
pursuant to this PARAGRAPH 10.4(B)(I).
(ii) REALIZED LOSS. Realized Loss from such Pool
shall be allocated:
(A) first to any Partner who sold all of his
or her Units in a Pool in any preceding Fiscal Period
and carried over a negative balance in such Partner's
Redemption ULA or Redemption UGA to the current Fiscal
Period;
(B) next to any Partner who sells all or a
portion of his or her Units in a Pool as of the end of
the current Fiscal Period and would otherwise carry over
a negative balance in such Partner's Redemption ULA or
Redemption UGA; and
(C) the remainder among all Partners
participating in such Pool in the manner set forth in
SUBSECTION 10.4(A) above after adjusting the Selling
Partner's Unit Percentage in such Pool and Unrealized
Loss Account to reflect such sales and the allocations
pursuant to this PARAGRAPH 10.4(B)(II).
(c) SECONDARY PRIORITY ALLOCATIONS. In the event that any
Partner who sold all of his or her Units in a Pool in a preceding
Fiscal Period carried over a balance other than zero to the current
Fiscal Period in either his or her Redemption UGA or Redemption ULA
and such balance or balances were not reduced to zero as of the end
of the current Fiscal Period by the Initial Priority Allocations
made pursuant to SUBSECTION 10.4(B) above, there shall be Secondary
Priority Allocations of the Realized Gain or Realized Loss or both
of the Partnership from prior Fiscal Periods in the same fiscal year
in the manner and to the extent set forth in this SUBSECTION
10.4(C).
(i) SAME CHARACTER. If there is a balance remaining
in either such Partner's Redemption UGA or
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Redemption ULA, there shall be a special allocation of
Realized Gain and Realized Loss, as the case may be, with
respect to Fiscal Periods prior to the Fiscal Period of Sale
during the same fiscal year of the sale as follows:
(A) An amount of Realized Gain shall be
allocated to such Selling Partner and away from the
Continuing Partners up to an amount sufficient to offset
any positive balance in such Partner's Redemption UGA or
Redemption ULA after such allocation; and
(B) An amount of Realized Loss shall be
allocated to such Selling Partner and away from the
Continuing Partners up to an amount sufficient to offset
any negative balance in such Partner's Redemption ULA or
Redemption UGA after such allocation.
(ii) OPPOSITE CHARACTER. In the event that there
shall still remain a balance in either the Redemption UGA or
Redemption ULA of any such Selling Partner after the special
allocation pursuant to PARAGRAPH 10.4(C)(I) above, there shall
be an additional allocation of Realized Gain and Realized
Loss, as the case may be, as follows:
(A) If there remains a positive balance in
such Partner's Redemption UGA or Redemption ULA, there
shall be a special allocation of Realized Loss with
respect to Fiscal Periods during the same fiscal year of
the sale (and not previously specially allocated
pursuant to PARAGRAPH 10.4(C)(1) above) away from the
Selling Partner and to the Continuing Partners (in
proportion to their respective Unrealized Loss Account
balances), up to an amount sufficient to offset such
positive balance in such Partner's Redemption UGA or
Redemption ULA; and
(B) If there remains a negative balance in
such Partner's Redemption ULA or Redemption UGA, there
shall be a special allocation of Realized Gain with
respect to Fiscal Periods during the same fiscal year of
the sale (and not previously specially allocated
pursuant to PARAGRAPH 10.4(C) II) above) away from the
Selling Partner and to the Continuing Partners (in
proportion to
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their respective balances), up to an amount equal to
offset such negative balance in such Partner's
Redemption ULA or Redemption UGA.
10.5. ORDERING OF PRIORITY ALLOCATIONS.
(a) CONTINUING PARTNERS. The Realized Gain or Realized
Loss or both to be specially allocated to a Selling Partner or
Partners pursuant to SUBSECTION 10.4(C) above shall be allocated
away from the Continuing Partners in the given Pool in proportion to
the aggregate Realized Gains or Realized Losses, as the case may be,
allocated to the Continuing Partners from the Pool with respect to
prior Fiscal Periods within such fiscal year before any adjustments
pursuant to SUBSECTION 10.4(C) above with respect to the current
Fiscal Period.
(b) SELLING PARTNERS. If there is more than one Partner
to whom a Priority Allocation is being made under any given
Paragraph of SUBSECTIONS 10.4(B) OR (C) above, the Priority
Allocation shall be made in proportion to and to the extent of the
respective balances being offset in the Redemption UGAs and
Redemption ULAs as a result thereof.
(c) PRIOR SALES. Priority Allocations being made under
any given Paragraph of SUBSECTION 10.4(B) OR (C) above shall be made
first with respect to the earliest Fiscal Period to which such
Allocation is being made and sequentially thereafter to subsequent
Fiscal Periods. In the event that a Partner elects to sell all of
his or her Units in a Pool and there has been a sale of all of
another Partner's Units in such Pool in prior Fiscal Periods, the
Priority Allocations, if any, required under SUBSECTIONS 10.4(B) OR
(C) above for the subsequent Selling Partner shall not affect, and
shall be made after giving effect to, the Priority Allocations made
with respect to such prior Selling Partner.
(d) SHORT-TERM AND LONG-TERM ALLOCATIONS. Realized Gains
and Realized Losses shall be characterized as either short-term or
long-term at the time of recognition and shall be accounted for as
such on the books of the Partnership. Except as provided below,
whenever an allocation of Realized Gain and Realized Loss is made
under this Agreement, such allocation shall consist of short-term
and long-term gains or losses, as the case may be, in the same
proportion as the total short-term and long-term gains and losses of
the given Pool for such Fiscal Period, as the case may be, bear to
the total Realized Gain and Realized Loss of
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such Pool for the Fiscal Period. If within a fiscal year a Partner
or Partners shall withdraw from a Pool or if a Partner or Partners
shall sell Units in a Pool on dates other than the last day of the
fiscal year, the Investment Committee shall make adjustments in the
proportions of Realized Gains and Realized Losses allocated to the
Partners that consist of short-term and long-term gains and losses
as shall equitably take into account such interim year events, and
the determination thereof by the Investment Committee shall be final
and conclusive as to all of the Partners.
(e) CURATIVE ALLOCATIONS. The allocations set forth in
this ARTICLE 10 are intended to comply in substance with the
requirements of Section 1.704-1(b) of the Regulations by providing
for the allocation of tax attributes in accordance with the actual
economic substance of each Partner's investment. Accordingly,
notwithstanding anything in this ARTICLE 10 to the contrary, the
Investment Committee, in consultation with the Partnership's
accountants and attorneys, may make any special allocation of
income, gain, loss or deduction for tax purposes deemed necessary to
make the allocations provided herein for any fiscal year comply with
the Regulations promulgated under Section 704 of the Code. To the
extent any such special allocation differs from the allocation that
would otherwise have been made under this ARTICLE 10, it shall be
taken into account in computing subsequent allocations of income,
gain, loss or deduction among the Partners so that, to the extent
possible, the net amount of allocations of such items to the
Partners shall be equal to the net amount that would have been
allocated to each Partner if such special allocation had not
occurred.
11. DISTRIBUTIONS AND EXPENSES.
11.1 DISTRIBUTIONS. Distributions shall be made at the time
and in the manner determined by the Investment Committee in accordance with this
Agreement.
11.2. EXPENSES.
(a) TRANSACTION COSTS. Transaction Costs shall be treated
as increases or decreases, as the case may be, in the acquisition
costs or proceeds from dispositions of Securities.
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(b) OTHER EXPENSES. All other expenses of the Partnership
shall be allocated between the Pools in proportion to their relative
values, or upon such other reasonable method as is determined by the
Investment Committee.
12. FISCAL YEAR. The fiscal year of the Partnership shall be
the calendar year.
13. BOOKS AND RECORDS. Full and accurate books of the
Partnership shall be maintained at the Partnership's principal place of
business, showing all receipts and expenditures, assets and liabilities, profits
and losses, and all other records necessary for recording the Partnership's
business and affairs, including those sufficient to record the allocations and
distributions provided herein. Such books and records shall be open to the
inspection and examination by all Partners in person or by their duly authorized
representatives at reasonable times.
14. REPORTS. Each Partner who was a member of the Partnership
during each fiscal year shall, within ninety (90) days of the end of such fiscal
year, be furnished with a copy of the financial statements of the Partnership,
along with a statement of such Partner's share of the Partnership's profits or
losses, and deductible items, for such fiscal year, in sufficient detail to
allow such Partner to prepare his or her state and federal income tax returns in
accordance with the laws, rules and regulations then prevailing.
15. METHOD OF ACCOUNTING. The Partnership's books and accounts
shall be maintained in accordance with the cash method of accounting for
financial and income tax reporting purposes. The Partnership's method of
accounting may be modified from time to time in the discretion of the Investment
Committee in reliance upon advice of the Partnership's custodian of assets,
counsel, accountants or any of the foregoing.
16. VALUATION OF SECURITIES. The value of Securities held by
each Pool shall be determined by the Investment Committee as of the first day of
each Fiscal Period of the Pool within thirty (30) days thereof. Notice of such
valuation shall be provided to each Partner within fifteen (15) days of such
determination.
17. SECTION 754 ELECTION. The Partnership shall not file an
election in accordance with Section 754 of the Code to adjust the basis of
Partnership property in the case of a distribution of property within the
meaning of Section 734 of the Code, and in the case of a transfer of a
Partnership interest,
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within the meaning of Section 743 of the Code, without the consent of all
Partners.
18. MANAGEMENT OF THE PARTNERSHIP.
18.1. INVESTMENT COMMITTEE. The overall management and
control of the business and affairs of the Partnership shall be vested solely in
the Investment Committee.
(a) MEMBERS. The Investment Committee shall consist of
four (4) members, each of whom must be an Active Partner.
(b) ELECTION. The members of the Investment Committee
shall be elected by the affirmative vote of Partners whose interests
in the Partnership as of the Valuation Date immediately preceding
such vote represent more than fifty percent (50%) of all interests
in the Partnership.
(c) TERM. Each member of the Investment Committee shall
serve until the earlier of the following: (i) his or her successor
is duly elected; (ii) he or she resigns or ceases to be an Active
Partner; or (iii) he or she is removed by the affirmative vote of
Partners whose interests in the Partnership as of the Valuation Date
immediately preceding such vote represent more than fifty percent
(50%) of all interests in the Partnership.
18.2. AUTHORITY OF THE INVESTMENT COMMITTEE. In managing the
business and affairs of the Partnership, each member of the Investment
Committee, acting in the manner described in SECTION 18.3 below, shall have all
the rights, powers and duties of a general partner as provided in the Wisconsin
Partnership Act, including, but not limited to, the right to invest Partnership
funds, sell Partnership Securities, and execute any deed or instrument in
pursuance of any of the foregoing. No other Partner shall have implied,
apparent, or actual authority to act on behalf of the Partnership except as
expressly, affirmatively, and actually authorized pursuant to this ARTICLE 18.
18.3. PARTNERSHIP ACTIONS. All actions of the Partnership
shall be taken pursuant to this SECTION 18.3.
(a) PARTNER CONSENT. Any action that may be taken by the
Partnership under this Agreement may be taken by the consent of a
number of Partners whose aggregate capital accounts at the time of
the consent represent eighty percent (80%) by value of the aggregate
capital of the
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Partnership. Unless a Partner affirmatively dissents in writing
within twenty-four (24) hours of notice of an action taken by the
Investment Committee, he or she will be conclusively presumed to
have consented to such action.
(b) MAJORITY CONSENT. Except as specifically provided to
the contrary in SECTIONS 18.4 AND 18.5 below, actions of the
Investment Committee shall be taken with the approval of a majority
by number of its members. Notwithstanding the foregoing, the
Investment Committee may, in its sole discretion, delegate authority
to any of its members to act unilaterally with respect to managerial
tasks of the Partnership, including maintaining the various Partner
accounts and acting as the tax matters partner for the Partnership
as defined in Section 6231(a)(7) of the Code.
(b) AUTHORITY TO ACT. Each member of the Investment
Committee shall have the authority to unilaterally perform actions
on behalf of the Partnership that are approved by the Investment
Committee pursuant to SUBSECTION (A), above. Any person dealing with
the Partnership or the Investment Committee may rely upon a
certificate signed by any member of the Investment Committee as to:
(i) PARTNERS. The identity of the Partners and the
members of the Investment Committee;
(ii) POWER. The existence or non-existence of any
fact or facts that constitute a condition precedent to acts by
the Partnership, the Investment Committee or the Partners, or
any other matter germane to the affairs of the Partnership;
(iii) AUTHORIZATION. The persons who are authorized
to execute and deliver any instrument or document on behalf of
the Partnership; or
(iv) FACTS. Any act or failure to act by the
Investment Committee or the Partners or as to any other matter
whatsoever involving the Partnership, the Investment Committee
or any Partner.
18.4. ACQUISITION OF SECURITIES. Approval, pursuant to
SUBSECTION 18.3(A) above, of the acquisition of Securities shall be given in the
manner provided in this SECTION 18.4.
(a) DETERMINATION OF SUITABILITY. The Investment
Committee shall review such Securities as it deems appropriate in
its sole discretion to determine the suitability of
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such Securities as potential investment opportunities for the
Partnership. In making such determination with respect to each such
Security, the Investment Committee and the members thereof shall:
(i) CONTACT. Be the exclusive contact as between the
Partnership and the person or persons offering or presenting
the Security as a potential investment unless the Investment
Committee has specially appointed another person to so act;
(ii) POTENTIAL. Consider the potential for capital
appreciation or income or both presented by the Security;
(iii) RISK. Evaluate the potential liabilities or
losses presented by any credit or other obligations associated
with the Security or by the Security itself;
(iv) SUITABILITY. Assess the Security's suitability
in terms of the Partnership's investment policies as
established from time to time;
(v) ETHICS. Ascertain whether investment in the
Security is inconsistent with the professional
responsibilities and interests of the Partners; and
(vi) OTHER CONSIDERATIONS. Review the Security with
respect to any other matter deemed relevant by the Investment
Committee.
(b) EFFECT OF SUITABILITY DETERMINATION. A determination
by the Investment Committee of the suitability of a Security as an
investment for the Partnership shall be conclusive and binding;
provided, however, that the Investment Committee may, of its own
accord, reevaluate any Security previously rejected by it. If the
Investment Committee determines:
(i) UNSUITABLE. That a Security is not a suitable
investment, the Partnership shall not invest any of its
capital in or with respect to such Security; or
(ii) SUITABLE. That a Security is a suitable
investment, it shall establish the maximum investment amount
for the Partnership and the Partners with respect to such
Security and notify the Partners of
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such results in the manner provided in SUBSECTION (C) below.
(c) NOTICE OF SUITABILITY. The notice given to each
Partner of each suitable Security (the "Notice of Suitability")
shall include the following:
(i) DESCRIPTION. A description of the Security being
considered, including, when appropriate, the offering
memorandum or similar document received by the Investment
Committee.
(ii) PARTNERSHIP'S INVESTMENT. The maximum
investment that the Partnership will be allowed to make with
respect to such Security;
(iii) PARTNER'S INVESTMENT. As to each Partner, the
maximum participation that such Partner will be allowed with
respect to such Security;
(iv) PROCEDURE. The time period within which the
receiving Partner must respond to the Investment Committee
pursuant to SUBSECTION (D) below.
(d) PARTNER RESPONSE. Each Partner shall, within the
time period specified in the Notice of Suitability:
(i) INTEREST OF PARTNER. Advise the Investment
Committee of whether such Partner is in favor of or opposes an
investment by the Partnership in such Security; and
(ii) LEVEL OF PARTICIPATION. If in favor of an
investment in such Security, provide the Investment Committee
with a non-binding estimate of the amount such Partner would
be willing to contribute with respect to such Security, not to
exceed the maximum participation for such Partner provided in
the Notice of Suitability.
(e) INVESTMENT DETERMINATION. After receipt of the
Partner responses to a Notice of Suitability, the Investment
Committee shall make a determination by majority vote of whether
there is sufficient Partner interest in investing in the Security,
which determination shall be binding and conclusive; provided,
however, that the Investment Committee may, of its own accord,
reevaluate any
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Security previously rejected by it. If the Investment Committee
determines:
(i) INSUFFICIENT PARTNER INTEREST. That there is
not sufficient Partner interest in making such investment, it
shall so inform the Partners, and the Partnership shall not
invest any of its capital in or with respect to such Security;
or
(ii) SUFFICIENT PARTNER INTEREST. That there is
sufficient Partner interest in making such investment, it
shall calculate the investment proposed to be made by the
Partnership in the Security and provide to the Partners who
responded in favor of investing in such Security a notice in
the form provided in SUBSECTION (F) below.
(f) NOTICE OF INVESTMENT. The notice given to each
Partner of the proposed investment by the Partnership in a Security
(the "Notice of Investment") shall include the following:
(i) CONTRIBUTION. The amount of the Additional
Contribution to Capital to be made by such Partner with
respect to such Security, not to exceed the amount estimated
by the Partner as the amount he or she would be willing to
contribute in response to the Notice of Intent, and the terms
and conditions of the Contribution; and
(ii) PARTICIPATION. The anticipated level of
participation of the Partner with respect to such Security
upon such Additional Contribution to Capital.
(g) APPROVAL OF INVESTMENT. Any Partner receiving a
Notice of Intent must respond in the manner provided therein to
participate in the proposed investment in the Security, including
the timely payment of the Additional Contribution to Capital. Upon
the receipt of the Additional Contributions to Capital of such
Partners, the Investment Committee shall determine whether
sufficient capital contributions have been made to meet the intended
investment level anticipated by the Investment Committee. If the
Investment Committee determines:
(i) DISAPPROVAL. That there has not been a
sufficient Additional Contributions to Capital to make the
proposed investment, it shall determine whether or not to
resubmit consideration of the Security to the
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Partners who have made Additional Contributions to Capital
with respect thereto in a manner similar to that provided in
SUBSECTION (F) above. If it determines not to so resubmit or
that the Security cannot or should not otherwise be acquired,
the Partnership shall not invest any of its capital in or with
respect to such Security and the Additional Contributions to
Capital shall be returned to the respective Partners who made
them; or
(ii) APPROVAL. That there has been sufficient
Additional Contributions to Capital to make the proposed
investment and, by the unanimous consent of its members, that
the Security should be acquired, it shall approve and
authorize the acquisition of such Security pursuant to
SUBSECTION 18.3(B) above.
18.5. DISPOSITION OF SECURITIES. The disposition of Securities
shall be approved pursuant to SUBSECTION 18.3(A) above in the manner provided in
this SECTION 18.5.
(a) EVALUATION OF PROPOSED DISPOSITION. The Investment
Committee shall evaluate Securities held by the Partnership at the
times and in the manner it deems appropriate in its sole discretion.
If the Investment Committee proposes to dispose of a Security, it
shall provide notice to the Partners of the proposed disposition,
the material terms thereof and the manner in which each Partner may
provide to the Investment Committee comments with respect to the
proposed disposition.
(b) APPROVAL OF DISPOSITION. The Investment Committee
shall determine in its sole discretion whether to dispose of a
Security taking into consideration the factors listed in SUBSECTION
18.4(A) above, and the comments, if any, of the Partners with
respect to the proposed disposition. If it determines by the
unanimous consent of its members that the Security should be
disposed of, it shall approve and authorize the disposition of such
Security pursuant to SUBSECTION 18.3(B) above.
(c) DISTRIBUTION OF PROCEEDS. Proceeds from the
disposition of a Security shall be distributed in accordance with
SECTION 20.4 BELOW.
18.6. SERVICES OF INVESTMENT COMMITTEES. During the existence
of the Partnership, the Investment Committee shall devote such time and effort
to the Partnership business as may be necessary to promote adequately the
interests of the Partnership
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and the mutual interests of the Partners; however, it is specifically understood
and agreed that the members of the Investment Committee shall not be required to
devote their full-time attention to Partnership business.
18.7. LIABILITY OF MEMBERS OF THE INVESTMENT COMMITTEE;
INDEMNIFICATION. No member of the Investment Committee shall be liable,
responsible or accountable in damages or otherwise to the Partnership or the
Partners for any act or omission performed or omitted in good faith on behalf of
the Partnership and in a manner believed by the member to be within the scope of
the authority granted by this Agreement and in the best interests of the
Partnership if he or she shall not have been guilty of gross negligence or
willful misconduct with respect to such acts or omissions. Each member of the
Investment Committee shall be indemnified by the Partnership for any act
performed by him or her within the scope of the authority conferred upon him or
her by this Agreement; provided, however, such indemnity shall be payable only
if the member acted in good faith and in a manner he or she believed to be in,
or not opposed to, the best interests of the Partnership and the Partners. Any
indemnity under this SECTION 18.7 shall be paid from, and only to the extent of,
Partnership assets, and the Partners shall not have any personal liability on
account thereof.
19. ADMISSION OF NEW PARTNERS.
19.1. ADMISSION. Additional Partners may be admitted to the
Partnership by the Investment Committee on such terms and conditions as it shall
determine. The admission of any new Partners shall be subject to the condition
that each such new Partner shall execute a General Partner Execution Page
pursuant to which he or she agrees to be bound by the terms and provisions
hereof.
19.2. CAPITAL CONTRIBUTIONS OF NEW PARTNERS. Each new Partner
shall have no economic interest in or to the assets of the Partnership unless
and until he or she makes an Additional Contribution to Capital pursuant to
SECTION 18.4 above, and then only as and to the extent represented by the Units
received pursuant to SECTION 7.3 above.
19.3. CONTINUATION OF PARTNERSHIP. Admission of a new
Partner shall not be cause for dissolution of the Partnership.
20. NATURE OF PARTNERS' INTERESTS.
20.1. PARTNER'S OWNERSHIP OF PARTNERSHIP PROPERTY. Each
Partner shall have and own during a Fiscal Period an
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20
undivided interest in each Pool in which he or she has invested, equal to his or
her Unit Percentage therein for such Fiscal Period. No Partner shall have an
interest in and to specific Securities held by the Partnership, nor may any
Partner compel the distribution of any Security or an interest therein in kind.
20.2. ASSIGNABILITY OF INTERESTS. Interests in the
Partnership are not assignable and any attempted or purported sale, exchange,
assignment, or other transfer shall be void.
20.3. ASSIGNABILITY OF UNITS. A Partner may not sell, assign,
exchange, distribute, or otherwise transfer all or any portion of his or her
Units to any person, except to another Partner effective on the last day of a
Fiscal Period with the consent of the Investment Committee or to the
Partnership, pursuant to SECTION 20.4 below. Any other attempted assignment or
substitution shall be void. Any such sale by a Partner of all of his or her
Units shall not effect a transfer or assignment of his or her Partnership
Interest.
20.4. PROCEDURE FOR SALE OR REDEMPTION. Except as provided in
ARTICLE 22 below, Units shall be sold or redeemed by the Partnership only
pursuant to this SECTION 20.4.
(a) SALE OF UNITS. Any Partner desiring to sell all or a
portion of his Units to another Partner must give at least sixty
(60) days' prior notice of the proposed sale and the material terms
thereof to the Investment Committee. The Investment Committee shall
promptly notify all Partners proposing to buy or sell Units of a
Pool of the material terms of such proposed transfers to attempt to
establish uniformity in the valuation thereof. The Investment
Committee shall reasonably determine whether to allow any such
proposed sale to proceed, taking into consideration the effect of
the proposed sale price on the allocation of Unrealized Gains and
Unrealized Losses, and inform the affected Partners of its decision
at least fifteen (15) days prior to the proposed sale date.
(b) LIQUIDATION OF POOL. Upon the liquidation of all or
part of the Securities in a given Pool, the Partnership shall
purchase from each Partner holding Units in such Pool a number of
Units in such Pool bearing the same ratio to the number of such
Units as the liquidated Securities bore to the total value of the
Pool. The purchase price for such Units shall be the Net Asset Value
per Unit. There shall be no purchase of fractional Units. The
purchase price shall be paid as promptly as is reasonably possible
following the purchase date.
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21
(c) COMPLETE REDEMPTION OF PARTNER. A Partner may
withdraw from the Partnership only with the consent of the
Investment Committee, subject at all times to applicable securities
laws and any other restrictions on the transactions described in
this Subsection.
(i) VALUATION. The price at which the Selling
Partner's Units will be redeemed, if any, shall be determined
by the mutual agreement of the Selling Partner and the
Investment Committee. If such parties are unable to reach such
agreement, the Selling Partner shall cease to be an Active
Partner and the Selling Partner's sole remedy shall be to
remain a Partner until the Pools in which he participates have
been liquidated and he has received his purchase price
pursuant to SUBSECTION (B) above.
(ii) REDEMPTION DISTRIBUTION. Upon a Partner's
withdrawal, the Partnership shall, to the extent reasonably
practicable, distribute to the Partner cash or property or
both, as determined by the Investment Committee in its sole
discretion, having an aggregate value equal to the aggregate
value of the Units held by the withdrawing Partner. Such
distributions shall be given the effect described in ARTICLE
10 above relating to allocations of income, gain, deduction
and loss.
(iii) INCOMPLETE DISTRIBUTION. To the extent the
Partnership cannot with reasonable practicality make such a
distribution, the withdrawing Partner shall retain an economic
interest in the Partnership until he or she has received full
value for his or her Units. Such withdrawing Partner shall
cease to be considered an Active Partner as of the effective
day of his or her withdrawal.
(d) RETAINED INTEREST. Notwithstanding the provisions of
SUBSECTIONS (B) AND (C) above, a Selling Partner shall, for purposes
of ARTICLE 10 above, be considered to be participating in any Pool
with respect to which he or she has sold or redeemed all of his or
her Units until the balance in each of his or her capital accounts
for such Pool, as adjusted in accordance with SECTION 9 above, has
been reduced to zero to the extent provided therein and shall also
be subject to the provisions of SUBSECTION 10.1(C) above as provided
therein.
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22
(e) HARDSHIP SALES. Notwithstanding the foregoing
provisions of this SECTION 20.4, the Investment Committee may allow
sales or purchases of Units in cases of hardship on the terms and
conditions determined by it in its sole discretion.
20.5. AUTHORITY OF PARTNERS. Except as provided in ARTICLE 18
above with respect to Partners who are members of the Investment Committee, no
Partner shall have any authority to act for or on behalf of the Partnership.
21. ABSOLUTE RESTRICTIONS ON TRANSFER. No transfer,
assignment or issuance of Units or any interest in the Partnership may be made
if, in the opinion of counsel for the Partnership, such transfer or assignment
would create a default under any material contract or agreement to which the
Partnership is a party, may result in the Partnership's being treated as an
association for federal income tax purposes, or would violate any applicable
federal or state securities laws.
22. DISSOLUTION AND TERMINATION.
22.1. EVENTS OF DISSOLUTION. The Partnership shall be
dissolved upon the withdrawal, termination, dissolution or bankruptcy of a
Partner unless, within the time specified in this Agreement, the remaining
Partners elect to continue the business of the Partnership and elect a successor
member to the Investment Committee, if necessary, pursuant to the terms and
conditions of this Agreement. Dissolution of the Partnership shall be effective
on the day on which the event occurs giving rise to the dissolution, but the
Partnership shall not terminate until the assets of the Partnership shall have
been distributed as provided herein. Notwithstanding the dissolution of the
Partnership, prior to the termination of the Partnership as aforesaid, the
business of the Partnership and the affairs of the Partners, as such, shall
continue to be governed by this Agreement. Upon dissolution, the Investment
Committee or, if there be none, a liquidator appointed by Partners representing
a majority by value of all of the Units in the Partnership shall liquidate the
assets of the Partnership, apply and distribute the proceeds thereof as
contemplated by this Agreement and cause the termination of the Partnership.
22.2. CONTINUATION OF THE PARTNERSHIP. Notwithstanding the
occurrence of an event specified in SECTION 22.1 above, the Partnership shall
not be dissolved and its business and affairs shall not be discontinued if the
remaining Partners elect to continue the Partnership and the Partnership
business. If the
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23
Partners do not elect to continue the business, the Partnership shall be
dissolved and terminated.
22.3. WINDING UP OF THE PARTNERSHIP. After payment from each
Pool of liabilities owing to its creditors, the Investment Committee or
liquidator shall set up such reserves for each Pool as he or she deems
reasonably necessary for any contingent or unforeseen liabilities or obligations
of such Pools. Said reserves may be paid over by the Investment Committee or
liquidator to a bank, to be held in escrow for the purpose of paying any such
contingent or unforeseen liabilities or obligations and, at the expiration of
such period as the Investment Committee or liquidator may deem advisable, such
reserves shall be distributed to the Partners or their assigns in the manner set
forth in SECTION 22.4 below.
22.4. DISTRIBUTIONS UPON LIQUIDATION.
(a) CASH DISTRIBUTION. After paying liabilities and
providing for reserves in the manner described in SECTION 22.3,
above, the Investment Committee or liquidator shall cause the
remaining net assets of each Pool to be liquidated or distributed to
the Partners holding Units in such Pool in proportion to their
respective capital accounts with respect to such Pools. In the event
that any part of such net assets consist of notes or accounts
receivable or other non-cash assets, the Investment Committee or
liquidator shall take whatever steps he or she deems appropriate to
convert such assets into cash or into any other form which would
facilitate the distribution thereof.
(b) IN-KIND DISTRIBUTION. If any assets of a pool are to
be distributed in kind, undivided interests as tenants in common in
such assets shall be distributed to the Partners holding Units in
such Pool in proportion to the capital accounts maintained with
respect to such Pool.
(c) NO RECOURSE. Each holder of Units shall look solely
to the assets of the given Pool for all distributions from the
Partnership and the return of his or her Capital Contribution
thereto and shall have no recourse (upon dissolution or otherwise)
against any other Pool, the Investment Committee, any Partner, or
any of their affiliates.
23. MISCELLANEOUS.
23.1. SUCCESSORS AND ASSIGNS. Subject to the restrictions on
transfer set forth herein, this Agreement, and each and
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24
every provision hereto, shall be binding upon and shall inure to the benefit of
the Partners, their respective successors and assigns, and each and every
successor-in-interest to any Partner, whether such successor acquires such
interest by way of gift, purchase, foreclosure, or by any other method, shall
hold such interest subject to all of the terms and provisions of this Agreement.
23.2. POWER OF ATTORNEY. A Partner, by the execution of this
Agreement or any counterpart thereof, does hereby irrevocably constitute and
appoint the separate members of the Investment Committee and any person or
entity who becomes a substitute or additional member of the Investment
Committee, in each case with full power of substitution, his or her true and
lawful agent and attorney-in-fact, with full power and authority in his or her
name, place and stead, to make, execute, acknowledge, swear to, deliver, file
and record such documents and instruments as may be necessary or appropriate to
carry out the provisions of this Agreement, including, but not limited to, such
amendments to this Agreement, as amended from time to time, as are necessary to
effectuate the provisions of this Agreement, to admit a substituted or
additional Partner to the Partnership pursuant to ARTICLE 19 above, or to carry
out the purpose of this Agreement or comply with applicable law. The foregoing
power of attorney, being coupled with an interest, is hereby declared to be
irrevocable, and shall survive the death, dissolution or incapacity of any
Partner.
23.3. ENTIRE AGREEMENT. This Agreement constitutes the full
and complete agreement of the parties hereto with respect to the subject matter
hereof.
23.4. ARBITRATION.
(a) GENERAL DISPUTES. Any dispute arising with respect
to this Agreement, or the making or validity thereof, or its
interpretation, or any breach thereof, shall be determined and
settled by arbitration in the city of Milwaukee, Wisconsin, pursuant
to the rules then obtaining of the American Arbitration Association,
which shall be the sole and exclusive remedy for such disputes
except as otherwise provided herein. Any award rendered shall be
final and conclusive upon the parties and a judgment thereon may be
entered in any court having jurisdiction.
(b) VALUATION DISPUTES. Notwithstanding the foregoing and
except as specifically provided to the contrary herein, disputes as
to valuation shall be resolved by the mutual agreement of the
Partner or Partners disputing
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the given valuation on the one hand and the Investment Committee on
the other hand. In the absence of such agreement as to valuation,
Partners to which such valuation is relevant are prohibited from
engaging in any transaction to which such valuation was so relevant.
23.4. APPLICABLE LAW. This Agreement and the rights and
obligations of the parties hereunder shall be governed by and interpreted,
construed and enforced in accordance with the laws of the State of Wisconsin.
23.5. COUNTERPARTS. This Agreement may be executed in
counterparts, all of which shall constitute but one and the same Agreement. Any
General Partner Execution Page, as executed from time to time, is an integral
part of this Agreement and is incorporated herein by this reference.
IN WITNESS WHEREOF each Partner has executed this Agreement as
of the date of his or her respective Execution Page.
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EXHIBIT A
GENERAL PARTNER EXECUTION PAGE
The undersigned, desiring to become a Partner of CGRM Investment
Partnership hereby agrees to all of the terms of the Partnership Agreement of
CGRM Investment Partnership and agrees to be bound by the terms and provisions
thereof, including specifically the power of attorney granted therein.
Executed by the undersigned as a Partner of CGRM Investment
Partnership.
Partner:
-----------------------------------
(Signature of Partner)
-----------------------------------
(Name of Partner - Print)
-----------------------------------
(Street Address)
-----------------------------------
(City) (State) (Zip Code)
-----------------------------------
(Taxpayer Identification or Social
Security Number)
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EXHIBIT B
DEFINITIONS
For the purposes of the General Partnership Agreement of CGRM
Investment Partnership with respect to each separate Pool for any Fiscal Period,
the following terms shall have the meanings so provided:
"Active Partner" means any Partner other than a Partner who
has sold or redeemed all of his or her Units and is considered a
Partner solely for the purpose of eliminating remaining balances in his
or her accounts, or a Partner that has requested redemption, but could
not reach agreement with the Investment Committee as to valuation.
"Accrued Current Income" means the Current Income earned
during the Fiscal Period by the Partnership as determined under the
accrual method of accounting employing generally accepted accounting
principles to the extent possible.
"Additional Contribution to Capital" means any contribution
made to the capital of the Partnership pursuant to SECTION 18.4.
"Cash Current Income" means the Current Income received during
such Fiscal Period by the Partnership as determined on the cash
receipts and disbursements method of accounting as defined in Section
1.451-1(a) of the Regulations.
"Code" means the Internal Revenue Code of 1986, as amended.
"Continuing Partners" shall mean the Partners who have not had
all of their Units in a Pool purchased or redeemed as of the end of the
current Fiscal Period for purposes of making the Secondary Priority
Allocations as set forth in SUBSECTION 10.4(C).
"Current Income" means the aggregate gross income from all
sources other than proceeds from the sale, exchange or other
disposition of Securities.
"Current Income Account" means the account maintained pursuant
to SECTION 8.1 for the purpose of allocating Current Income to the
Partners.
"Fiscal Period" means, with respect to any given Pool, any
period within a fiscal year of the Partnership beginning on January 1
of each year and on the day on which Additional
28
Capital Contributions may be made pursuant to SECTION 18.4, and ending
on the day immediately preceding the first day of the next Fiscal
Period.
"Fiscal Period of Sale" means a Fiscal Period as of the last
day of which a Partner sells all or a portion of his or her Units or
the Partnership redeems all or a portion of a Partner's Units in
accordance with ARTICLE 20.
"Gain Security" means any Security that has a market value
greater than the Partnership's Tax Basis in such Security as of the end
of a Fiscal Period.
"Gain Securities Appreciation" means the positive number
determined as of the end of a Fiscal Period for a given Pool as the
difference between (1) the aggregate fair market value of all Gain
Securities that are held by that Pool at the end of the Fiscal Period
and that are either still held in the next Fiscal Period or distributed
in kind to a Partner or Partners as of the end of the Fiscal Period,
and (2) the Partnership's aggregate Tax Basis in such Gain Securities.
"Income Type" means the separate categories of Current Income
with respect to which any given Partner is or may be subjected to a tax
treatment that is different than that imposed on other categories of
Current Income, such as dividends, interest, U.S. Government interest,
state and local government interest, and so forth, as determined by the
Investment Committee pursuant to SECTION 8.1.
"Investment Committee" means the committee elected pursuant to
SECTION 18.1 to manage the affairs of the Partnership.
"Investment Management Expenses" means all expenses, fees and
costs for investment management, consulting or advisory services (other
than Transaction Costs directly incurred by the Partnership), and all
other costs and expenses relating to the Partnership or the Partners'
investment therein.
"Loss Security" means any Security that has a market value
less than the Partnership's Tax Basis in such Security as of the end of
a Fiscal Period.
"Loss Securities Depreciation" means the negative number
determined as of the end of a Fiscal Period for a given Pool as the
difference between (1) the aggregate fair
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market value of all Loss Securities that are held by that Pool at the
end of the Fiscal Period and that are either still held in the next
Fiscal Period or distributed in kind to a Partner or Partners as of the
end of the Fiscal Period, and (2) the Partnership's aggregate Tax Basis
in such Loss Securities.
"Net Asset Value" means the amount of cash, aggregate fair
market value of Securities and aggregate fair market value of any other
assets held by the Pool being valued as of the end of the Fiscal
Period, decreased by the amount of undistributed Cash Current Income
received by such Pool in such Fiscal Period and in any prior Fiscal
Period and decreased by the amount of aggregate liabilities of such
Pool.
"Net Asset Value per Unit" as of the end of a Fiscal Period
shall mean the Net Asset Value of a Pool's assets divided by the number
of Units in such Pool outstanding as of the end of such Fiscal Period,
including any Units being sold or redeemed as of such day.
"Partner" means each person who executes this Agreement as a
partner pursuant to a General Partner Execution Page.
"Partnership" means the general partnership formed pursuant to
and continued under the terms of this Agreement.
"Pool" means the separate investment pools established by the
Investment Committee pursuant to SECTION 7.1.
"Priority Allocation" means any allocation under SUBSECTION
10.4(B) OR (C) of Realized Gain and Realized Loss from a Pool,
respectively, to the extent of the Redemption UGA and Redemption ULA,
respectively, of Partners selling or redeeming all or a portion of
their Units in such Pool.
"Realized Gain" means the aggregate gains from the sale,
exchange, or other disposition of a Pool's property realized under the
principles of the Code by the Partnership during the Fiscal Period,
whether considered short-term or long-term capital gains and without
offset for or netting with any Realized Losses.
"Realized Loss" means the aggregate losses from the sale,
exchange, or other disposition of a Pool's property realized under the
principles of the Code by the Partnership during the Fiscal Period,
whether considered short-term
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or long-term capital losses and without offset for or netting with
Realized Gains.
"Redemption UGA" means the account established for any Partner
selling Units with respect to each given Fiscal Period of Sale, the
balance of which account shall be equal to the balance (if any and
whether positive or negative) in the Unrealized Gain Account for that
Partner as of the end of the Fiscal Period of Sale multiplied by a
ratio, the numerator of which is the number of Units in such Pool being
sold from that Partner and the denominator of which is the number of
Units owned by that Partner in such Pool prior to such sale.
"Redemption ULA" means the account established for any Partner
selling Units with respect to each given Fiscal Period of Sale, the
balance of which account shall be equal to the balance (if any and
whether positive or negative) in the Unrealized Loss Account for that
Partner as of the end of the Fiscal Period of Sale multiplied by a
ratio, the numerator of which is the number of Units in such Pool being
sold from that Partner and the denominator of which is the number of
Units owned by that Partner in such Pool prior to such sale.
"Regulations" means the Treasury Regulations promulgated under
and pursuant to the Code.
"Secondary Priority Allocation" means the allocation of
Realized Gains and Realized Losses made pursuant to SUBSECTION 10.4(C)
to eliminate any remaining Redemption UGA or Redemption ULA, as the
case may be.
"Security" means real estate and personal property in whatever
form or nature; business enterprises, corporations, partnerships and
other business entities or any interest in the foregoing; cash, cash
equivalents, mutual funds, and other investments; common or capital
stocks, shares in investment trusts, funds or companies, preferred
stocks, shares of beneficial interests, debt, bonds, notes, debentures,
puts, calls, option contacts, warrants and rights to purchase
securities, financial and stock index options and futures; trust
receipts, commercial paper, obligations or other evidences of
indebtedness issued by corporations, trusts, associations, domestic or
foreign, or issued and guaranteed by the United States of America or
any agency or instrumentality thereof, by any foreign country, by any
state of the United States or by any political subdivision or agency or
any state or foreign country, or "when-issued"
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contracts for any such type of securities; certificates of deposit,
demand or time deposits, bills, acceptances, repurchase agreements,
limited partnership interests and other obligations; causes in action,
instruments or evidence of indebtedness commonly referred to as
securities, whether readily marketable or not.
"Selling Partner" means any Partner selling Units in a Pool
(to the Partnership or to another Partner) or redeeming his or her
Partnership Interest.
"Tax Basis" means the adjusted basis of the Partnership in a
Security as determined under the principles of the Code.
"Transaction Costs" means all commissions, transfer taxes and
all other expenses properly chargeable on a transaction basis to sales,
exchanges, purchases, redemptions or other acquisitions or dispositions
of Securities.
"UG Adjustment" means an amount determined for each Pool in
each Fiscal Period that is equal to the difference between (i) the sum
of Gain Securities Appreciation of such Pool determined as of the end
of such Fiscal Period plus the Realized Gain of such Pool for the
Fiscal Period, and (ii) Gain Securities Appreciation of such Pool
determined as of the end of the prior Fiscal Period less the Unrealized
Appreciation on any Gain Securities distributed in kind to a Partner
from such Pool as of the end of such prior Fiscal Period. The amount so
determined may be positive or negative.
"UL Adjustment" means an amount determined for each Pool in
each Fiscal Period that is equal to the difference between (i) the sum
of Loss Securities Depreciation of such Pool determined as of the end
of such Fiscal Period plus the Realized Loss of such Pool for the
Fiscal Period, and (ii) Loss Securities Depreciation of such Pool
determined as of the end of the prior Fiscal Period less the Unrealized
Depreciation on any Loss Securities distributed in kind to a Partner
from such Pool as of the end of such prior Fiscal Period. The amount so
determined may be negative or positive.
"Unit" means the interest of a Partner in a given Pool as
provided in SECTION 7.2.
"Unit Percentage" means that percentage that is determined for
each Partner in each Pool for each Fiscal
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32
Period by dividing the number of Units owned by a Partner in that Pool
as of the beginning of such Fiscal Period, including any new Units
issued pursuant to SECTION 7.2 as of the first day of such Fiscal
Period, divided by the total number of Units in such Pool outstanding
as of the beginning of such Fiscal Period, including all new Units
issued pursuant to SECTION 7.2 as of the first day of such Fiscal
Period.
"Unrealized Appreciation" means, with respect to any Gain
Security, the excess of the fair value of the Gain Security determined
as of the end of the business day immediately preceding the event
requiring calculation of Unrealized Appreciation over the Tax Basis of
the Partnership in the Gain Security. The amount so determined will
always be a positive number.
"Unrealized Depreciation" means, with respect to any Loss
Security, the difference between the fair value of the Loss Security
determined as of the end of the business day immediately preceding the
event requiring calculation of Unrealized Depreciation and the Tax
Basis of the Partnership in the Loss Security. The amount so determined
will always be a negative number.
"Unrealized Gain Account" means the account maintained
pursuant to SECTION 9.1 for the purpose of allocating gains to the
Partners.
"Unrealized Loss Account" means the account maintained
pursuant to SECTION 9.2 for the purpose of allocating losses to the
Partners.
33
EXHIBIT A
GENERAL PARTNER EXECUTION PAGE
The undersigned, desiring to become a Partner of CGRM Investment
Partnership hereby agrees to all of the terms of the Partnership Agreement of
CGRM Investment Partnership and agrees to be bound by the terms and provisions
thereof, including specifically the power of attorney granted therein.
Executed by the undersigned as a Partner of CGRM Investment
Partnership.
Partner:
-----------------------------------
(Signature of Partner)
-----------------------------------
(Name of Partner - Print)
-----------------------------------
(Street Address)
-----------------------------------
(City) (State) (Zip Code)
-----------------------------------
(Taxpayer Identification or Social
Security Number)
