Exhibit 3.17
PCA NATIONAL OF TEXAS L.P.
A Limited Partnership
Organized Under the Laws of
the State of Texas
Dated: April 25, 2000
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THE PARTNERSHIP UNITS EVIDENCED BY THIS DOCUMENT ARE SUBJECT TO RESTRICTIONS ON
ASSIGNMENT AND TRANSFER SET FORTH HEREIN. THE UNITS HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 OR ANY STATE SECURITIES LAW AND MAY NOT BE SOLD
OR OTHERWISE TRANSFERRED UNTIL REGISTERED OR UNTIL THE GENERAL PARTNER HAS
RECEIVED AN OPINION OF LEGAL COUNSEL, OR OTHER ASSURANCES SATISFACTORY TO THE
GENERAL PARTNER, THAT SUCH UNITS MAY LEGALLY BE SOLD OR OTHERWISE TRANSFERRED
WITHOUT REGISTRATION, ALL AS PROVIDED IN THIS DOCUMENT.
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LIMITED PARTNERSHIP AGREEMENT
OF
PCA NATIONAL OF TEXAS L.P.
THIS LIMITED PARTNERSHIP AGREEMENT (the "Agreement") is entered into,
effective as of the Organization Date, by and among PCA National, Inc., a North
Carolina corporation, as General Partner, and PCA Photo Corporation of Canada,
Inc. as Limited Partner, each of whom hereby agrees and certifies as follows:
ARTICLE I
THE PARTNERSHIP
1.1 Formation. On April 25, 2000 the Partnership's Certificate of
Limited Partnership was filed in the Office of the Secretary of State of Texas,
and in accordance with Act Section 2.01 the parties hereto desire to consummate
the formation of the Partnership by entering into this Agreement pursuant to the
provisions of the Act for the purposes and upon the terms and conditions
hereinafter set forth.
1.2 Purposes and Character of the Business. The purposes of the
Partnership are as follows:
(a) to purchase, exchange, or otherwise acquire
income-producing assets or interests, including real
property;
(b) to acquire, own, hold, preserve, control, invest,
reinvest, loan, or otherwise dispose of the assets of
the Partnership and to manage, control, and invest in
other businesses and entities;
(c) to provide for efficient and cost-effective management
of securities and other assets contriibuted to the
Partnership; and
(d) to conduct any other business or joint enterprise which
shall be legal for a limited partnership to conduct
under the Act.
1.3 Name and Principal Place of Business. The operations of the
Partnership shall be conducted under the name of "PCA National of Texas L.P."
The principal place of business of the Partnership is located at ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, and/or such other place or places as the General
Partner may determine from time to time.
1.4 Registered Agent and Registered Office. The registered agent, as
required by Section 1.06 of the Act, is Corporation Service Company d/b/a
CSC-Lawyers Incorporating Service Company. The registered office of the
Partnership, as required by Section 1.06 of the Act, is located at 800 Brazos,
▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇. This Section 1.4 of the Agreement may be amended from time
to time by the General Partner to reflect any change in the registered agent or
the registered office of the Partnership.
ARTICLE II
DEFINITIONS
The terms defined in this Article II wherever used and capitalized in
this Agreement shall have the following meanings:
"Act" means the Texas Revised Limited Partnership Act, Tex. Rev. Civ.
Stat. ▇▇▇. art. 6132a-1 et seq., as now enacted or hereafter amended.
"Bankruptcy" means, with respect to any Person (including the
Partnership), that Person's filing of a petition or otherwise voluntarily
commencing a case or proceeding, or filing an answer not denying the material
allegations of a complaint in any proceeding, seeking relief under any federal
or state bankruptcy, insolvency, or debtors' reorganization law; being the
voluntary or involuntary subject of an order for relief by any court under any
such law; being adjudicated a "bankrupt," "debtor," or "insolvent" under any
such law; there being appointed under any such law a "trustee," "receiver," or
"custodian" to manage his, her, or its business or properties; or there being
commenced under any such law a case or proceeding proposing such an order for
relief, adjudication, or appointment with respect to that Person or its
business, which proceeding is consented to by that Person or which is not
dismissed within ninety (90) days after being commenced.
"Book" means the method of accounting required to comply with Appendix
A, as distinguished from any other accounting method that the Partnership may
adopt for financial reporting or other purposes.
"Capital Account" means the capital account of a Partner maintained in
accordance with Section 4.1 of this Agreement.
"Code" means the Internal Revenue Code of 1986, as amended. All
references to particular sections of the Internal Revenue Code shall be deemed
to include reference to corresponding provisions of subsequent Federal tax law.
"Excess Cash" means the amount of cash (from whatever source) of the
Partnership on hand from time to time that is in excess of the required equity
of the Partnership as determined by the General Partner, taking into account the
general needs of the Partnership for working capital and investments, the
preservation of Partnership property, contingencies, debts, and the fiduciary
duties owed by the General Partner to the Limited Partners and the Partnership.
"Excess Deficit Balance" has the meaning set forth in Appendix A,
attached hereto.
"Fiscal Year" means the fiscal year of the Partnership, and its
taxable year for Federal income tax purposes, which shall be the calendar year.
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"Foreign Partner" has the meaning set forth in Section 11.3(a) of this
Agreement.
"General Partner" means those Persons listed on Schedule I as holding
one or more General Partner Units, and any other Person who is admitted as a
general partner in accordance with this Agreement and the Act, so long as such
General Partner holds at least one General Partner Unit; provided, however, that
the parties hereto hereby acknowledge and agree that it is at this time
contemplated that PCA National, Inc., a North Carolina corporation shall be
merged with and into PCA Delaware Merger Corporation, a Delaware corporation
(the "Merger") which shall subsequently be converted into PCA National LLC, a
Delaware limited liability company (the "Conversion"); provided further,
however, that at the time of the Merger and at the time of the Conversion the
entity succeeding to PCA National, Inc., a North Carolina corporation, by Merger
and then by Conversion shall constitute the valid General Partner of the
Partnership without any further action required.
"General Partner Unit" means a Unit entitling the Partner who is the
holder thereof to serve as a General Partner of the Partnership pursuant to the
terms of this Agreement.
"Indemnitee" has the meaning set forth in Section 12.1 of this
Agreement.
"Limited Partner" means those Persons listed on Schedule I as holding
one or more Limited Partner Units, and any other Person who is admitted as a
limited partner in accordance with this Agreement and the Act, so long as such
Limited Partner holds at least one Limited Partner Unit.
"Limited Partner Unit" means a Unit that is not a General Partner
Unit.
"Non-Resident Partner" has the meaning set forth in Section 11.3(b) of
this Agreement.
"Organization Date" means April 25, 2000.
"Outstanding Units" means the number of Units shown on the books and
records of the Partnership to be outstanding other than Units held by the
Partnership; provided, however, that for purposes of a written approval or
affirmative vote required to take any action hereunder, the number of
Outstanding Units shall not include Units held by an assignee who has not been
admitted as a Limited Partner pursuant to the terms of this Agreement.
"Partners" means and includes the General Partner and the Limited
Partners. In addition, any reference to a Partner shall, unless the context
clearly requires otherwise, be deemed a reference to his predecessor and
successor (other than a mere assignee) in interest.
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"Partnership Property" means all of the property owned by the
Partnership.
"Partnership Unit" or "Unit" means an interest of a Partner or an
assignee in the Partnership representing such fractional part of the interests
of all Partners or assignees pursuant to this Agreement as is equal to the
quotient of one divided by the number of Outstanding Units.
"Person" means a natural person, partnership (whether general or
limited and whether domestic or foreign), trust, estate, association,
corporation, limited liability company, limited liability partnership,
custodian, nominee, or any other individual or entity in its own or any
representative capacity.
"Residual Net Profits" has the meaning set forth in Section
4.2(b)(iii) of this Agreement.
"Securities Act" means the Securities Act of 1933, as amended.
"Termination" has the meaning set forth in Section 8.2(d) of this
Agreement.
"TMP" has the meaning set forth in Section 5.14 of this Agreement.
"Transfer" means any sale, assignment, pledge, hypothecation,
encumbrance, disposition, transfer (including, without limitation, a transfer by
will or intestate distribution), gift, or attempt to create a security interest
in any Unit or portion thereof whether voluntary or involuntary, by operation of
law or otherwise.
"Withdrawal" or "Withdraw" means, with respect to a General Partner,
an event of withdrawal as defined in Section 4.02 of the Act.
ARTICLE III
CAPITAL CONTRIBUTIONS
3.1 Capital Contributions. The Partners hereby contribute to the
Partnership that property more fully described on Schedule I, attached hereto.
From time to time, the Partners may contribute to the capital of the
Partnership, in money or other property, in proportion to their interests in the
Partnership; provided, however, that, except as provided in Sections 6.1,
8.2(e), 10.5, or 11.3 of this Agreement, no Partner shall be required to make
any such additional capital contribution unless all of the Partners unanimously
consent to the requirement that they make such additional capital contributions.
3.2 Initial Interest in the Partnership. Each Partner has subscribed
for the number of Partnership Units as further described in Schedule I, attached
hereto,
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and shall have an interest in the Partnership proportionate to such Units as
provided in this Agreement.
3.3 No Interest On Capital. No interest shall be paid by the
Partnership on the contributions to the capital of the Partnership by the
Partners.
3.4 Excess Contributions. If any Partner advances any funds to the
Partnership in excess of his, her, or its required contribution to the capital
of the Partnership, the amount of any such advance shall not be deemed a capital
contribution, but shall be an obligation of the Partnership to such Partner and
shall be repaid by the Partnership on such terms as the General Partner and such
Partner mutually determine as of the date of the advance.
ARTICLE IV
ALLOCATION OF PROFITS, GAINS, AND LOSSES;
DISTRIBUTIONS TO PARTNERS
The Partners agree that the income, profits, gains, and losses of the
Partnership shall be allocated, and cash distributions of the Partnership shall
be made, as follows:
4.1 Capital Accounts. Each Partner shall have a Capital Account
maintained as set forth in Appendix A.
4.2 Allocations of Book Income and Loss. Except as stated in Appendix
A, the Partnership's Book income and loss for any Fiscal Year shall be allocated
among the Partners in the following order of priority:
(a) Net Loss. Any net loss shall be allocated to and among the
Partners in the following order of priority:
(i) Except as provided in Section 4.2(a)(iii) with respect to
allocations that would cause a Limited Partner to have an
Excess Deficit Balance, all losses shall be allocated in an
amount equal to the excess, if any, of the residual net
profits allocated to the Partners pursuant to Section
4.2(b)(iii) over all prior allocations of losses to the
Partners pursuant to this Section 4.2(a)(i). Allocations of
losses pursuant to this Section 4.2(a)(i) are intended to
offset prior allocations, if any, of Residual Net Profits
and shall, in each case, be made to and among the Partners
in proportion to their respective Units.
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(ii) Except as provided in Section 4.2(a)(iii) with respect to
allocations that would cause a Limited Partner to have an
Excess Deficit Balance, a other losses shall be allocated to
and among the Partners in proportion to their respective
Units.
(iii) Notwithstanding the provisions of Sections 4.2(a)(i) and
(ii), losses shall not be allocated to a Limited Partner to
the extent such allocation would cause such Limited Partner
to have (or increase) an Excess Deficit Balance; rather,
such losses shall be allocated to the General Partner.
(b) Net Profit. Any net profit shall be allocated to and among the
Partners in the following order of priority:
(i) First, to the General Partner, until cumulative profits
allocated pursuant to this Section 4.2(b)(i) equal
cumulative losses allocated to the General Partner pursuant
to Section 4.2(a)(iii);
(ii) Second, to and among the Partners to the extent of the
excess, if any, of (A) the aggregate net losses resulting
from all prior allocations under Section 4.2(a)(ii) over (B)
all prior allocations of profits pursuant to this Section
4.2(b)(ii); and
(iii) Third, the balance of the net profits ("Residual Net
Profits") to and among the Partners in proportion to their
respective Units.
4.3 Tax Allocations. Except as provided in Appendix A, all items of
income, gain, loss, and deduction are to be allocated for federal income tax
purposes in the same manner as the corresponding allocations are made for Book
purposes pursuant to Section 4.2 of this Agreement.
4.4 Distributions to Partners. Excess Cash shall be distributed to the
Partners in proportion to their respective Units at such times and in such
amounts as the General Partner shall determine in the General Partner's sole
discretion; provided, however, that all distributions shall be made to all
Partners with positive capital account balances at the same time and in
proportion to the number of Units held by each Partner having a positive capital
account balance.
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4.5 Withholding. Except as otherwise required in this Article IV,
amounts withheld with respect to a Partner pursuant to Section 11.3 of this
Agreement shall be treated as amounts distributed to such Partner for all
purposes of this Agreement.
ARTICLE V
POWERS AND DUTIES OF THE GENERAL PARTNER
5.1 Management and Control of Partnership; Action By Consent. The
Partners hereby acknowledge and agree that the General Partner shall have the
sole and exclusive control of the day-to-day conduct, operation, and management
of the business of the Partnership, but only in accordance with this Agreement
and the Act. The General Partner shall manage the affairs of the Partnership in
a prudent and businesslike fashion and shall use its best efforts to carry out
the purposes and character of the business of the Partnership. The General
Partner shall devote such of its time as it deems necessary to the management of
the business of the Partnership. Nothing in this Section 5.1 shall be construed
as authorizing the General Partner to take any of the actions described
elsewhere in this Agreement without first having obtained the necessary consent
of the Partners as required herein. In accordance with Act Section 4.05(b), the
General Partner(s) may take actions by consent without a meeting.
(a) The Partners may, from time to time, elect, appoint, or
replace the General Partner only as expressly provided in
this Agreement.
(b) The General Partner may, but is not required to, receive
reasonable compensation for its services as General Partner
in accordance with this Agreement.
5.2 Appointment of Employees and Agents. The General Partner may
appoint one or more employees and agents of the Partnership and delegate the
authority to conduct the business of the Partnership in accordance with this
Agreement and any policy of delegation that may be adopted and revised from time
to time by the General Partner. Any power not delegated by the General Partner
remains with the General Partner.
5.3 Specific Powers of General Partner.
(a) Subject to the limitations imposed by the Act and this
Agreement, the authority of the General Partner includes,
without limitation, the power to:
(1) approve the annual operating and capital budgets and
strategic plans of the Partnership;
(2) authorize any commitment for a capital expenditure;
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(3) approve any obligation of the Partnership for
borrowed money, and make, issue, accept, endorse,
and execute promissory notes, drafts, bills of
exchange, letters of credit, guaranties, and other
instruments and evidences of indebtedness or of
contingent liability, and approve the granting of
any security therefor;
(4) authorize any commitment relating to a loan by the
Partnership to any Person or a guaranty by the
Partnership of any obligation of any Person;
(5) authorize any sale, lease, transfer, or other
disposition of any asset of the Partnership or any
group of assets, including the disposition of all
or substantially all the assets of the Partnership;
(6) approve the acquisition of any business or a
business division from any Person, whether by asset
purchase, stock purchase, merger, or other business
combination, including the creation and issuance of
additional Partnership Units of any class in
connection therewith;
(7) approve any purchase or lease of real property;
(8) adopt, approve, or terminate any individual or
group employee retirement plan or any other welfare
benefit plan or policy or any modifications
thereto;
(9) authorize the making, modification, amendment, or
termination of any agreement (other than this
Agreement) with any Member;
(10) authorize any distribution to Partners;
(11) change the Fiscal Year of the Partnership or make
or modify any tax elections as the General Partner
believe to be in the best interests of the
Partnership and the Partners;
(12) make any determination to indemnify any Person as
contemplated by Article XII of this Agreement;
(13) establish, amend, or modify rules for the conduct
of management by the General Partner;
(14) authorize the creation of any subsidiaries or any
other investment in, or the acquisition of stocks
or bonds or other Persons or any equity interest in
any other Person;
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(15) approve any change of the location of the principal
office of the Partnership;
(16) approve any license or other grant of rights to or
from the Partnership with respect to any patents,
trademarks, trade names, service marks, know-how,
trade secrets, or other proprietary information;
(17) open, conduct, and close checking, savings,
custodial, and other accounts on behalf of the
Partnership in such banks or other financial
institutions as the General Partner may select from
time to time;
(18) negotiate, enter into, execute, and exercise the
Partnership's rights under any and all contracts
necessary, desirable, or convenient with respect to
its business and affairs;
(19) execute any notifications, statements, reports,
returns, registrations, or other filings that are
necessary or desirable to be filed with any state
or federal agency, commission, or authority,
including, without limitation, any registration of
securities with any state or Federal securities
commission, and appear before such agency,
commission, or authority on behalf of the
Partnership;
(20) purchase or bear the cost of any insurance covering
the potential liabilities of the Partnership,
Partners, any employee of the Partnership, and any
other Person acting on behalf of the Partnership;
(21) commence, defend, or settle litigation pertaining
to the Partnership and its business or assets,
provided that the Partnership shall not bear the
expenses of any litigation brought against any
Partner acting in that capacity, any employee of
the Partnership, or any other Person acting on
behalf of the Partnership except as otherwise
provided in this Agreement;
(22) employ accountants, attorneys, contractors,
brokers, investment managers, engineers,
consultants, or other Persons on such terms, and
for such compensation, as it considers appropriate,
including, without limitation, Persons who may be
Partners, or who perform services for, or have
business, financial, family, or other relationships
with, any Partner or employee;
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(23) determine the fair market value of all Partnership
Property upon a Revaluation Event (as defined in
Appendix A) or otherwise;
(24) redeem Limited Partner Units, issue additional
Limited Partner Units, admit additional Limited
Partners, or approve any Transfer of one or more
Limited Partner Units in accordance with this
Agreement;
(25) enter into, make, and perform such contracts,
agreements, and other undertakings, to execute,
acknowledge, and deliver such instruments, and to
do such other acts as it considers necessary or
advisable for, or as may be incidental to, the
conduct of the business contemplated by this
Section 5.11(a) including, without limitation,
contracts, agreements, undertakings, and
transactions with any Partner or with any other
Person who performs services for or has any
business, financial, family, or other relationship
with any Partner; and
(26) authorize the filing of a Bankruptcy petition by or
on behalf of the Partnership.
(b) None of the powers granted in Section 5.11(a)
herein broadens or extends powers that are
specifically limited by other provisions of this
Agreement.
5.4 Duties of the General Partner. The General Partner shall,
on behalf of the Partnership and at the expense of the Partnership:
(a) maintain at the Partnership's principal place of
business a list, updated from time to time, that
accurately sets forth the names and addresses of
the Partners, the Units held by each Partner, and
the capital each Partner has paid to the
Partnership;
(b) furnish to each Partner, by the fifteenth day of
the third month following the close of each Fiscal
Year, all information required for federal and
state income tax reporting purposes with respect to
the Partnership, including a copy of Schedule K-1
to the Partnership's federal income tax return for
the Fiscal Year most recently ended;
(c) arrange for the preparation of all necessary
informational federal income tax forms on behalf of
the Partnership and for the preparation and filing
of any and all state and local
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income and franchise tax returns required to be
filed by the Partnership;
(d) maintain and preserve during the term of the
Partnership and for seven (7) years thereafter, or
for such longer time as is necessary to determine
the cost basis of the Partnership Property, at the
Partnership's office designated pursuant to Section
1.3 of this Agreement (or, if the Partnership has
been terminated, at the location designated by the
General Partner in a written notice to the
Partners), complete and accurate books of account
in accordance with the provisions of this
Agreement, a list of the names and addresses of
each Partner, copies of the Partnership's
certificate of limited partnership, this Agreement,
and copies of all financial statements and tax
returns of the Partnership for the most recent
five-year period during the term of the
Partnership;
(e) execute, acknowledge, and certify all ocuments and
instruments and take or cause to be taken all
actions which may be necessary or appropriate (i)
for the continuation of the Partnership's valid
existence as a limited partnership under the laws
of the State of Texas and of each other
jurisdiction in which such existence is necessary
to protect the limited liability of the Limited
Partners, (ii) to effectuate the provisions of this
Agreement, or (iii) to enable the Partnership to
conduct its business;
(f) obtain and maintain on behalf of the Partnership
such all-risk, public liability, workers'
compensation, Partner's liability, fidelity,
forgery, and other insurance, if any, as may be
available on commercially reasonable terms and as
may be deemed necessary or appropriate by the
General Partner;
(g) to the extent reasonably deemed necessary or
appropriate by the General Partner, cause all
persons dealing with the Partnership, the General
Partner, or any agent or employee of the
Partnership acting on behalf of the Partnership, to
be aware of the character of the Partnership as a
limited partnership;
(h) conduct the affairs of the Partnership in
compliance with the applicable laws and in the best
interests of the Partnership and of the Partners;
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(i) not permit the use of Partnership Property for
other than the benefit of the Partnership and of
the Partners;
(j) hold all Partnership Property in the Partnership
name or, in the case of cash or cash equivalents,
in one or more depository accounts as to which the
Partnership is a beneficial owner; and
(k) use reasonable efforts not to cause the Partnership
to incur debts or other liabilities and obligations
beyond the Partnership's ability to pay such
liabilities.
5.5 Standard of Care.
(a) The General Partner or any employee of the
Partnership, in the performance of his, her, or its
duties, is entitled to rely in good faith on
information, opinions, reports, and other
statements, including financial statements, books
of account, and other financial data, if prepared
or presented by (i) one or more employees of the
Partnership, or (ii) legal counsel, public
accountants, or other Persons as to matters within
the Person's professional or expert competence.
(b) The General Partner is to perform or its duties as
a General Partner in good faith, in a manner it
reasonably believes to be in or not opposed to the
best interests of the Partnership, and with the
care that an ordinarily prudent person in a similar
position would use under similar circumstances.
(c) The General Partner cannot be found to have
violated Section 5.13(b) herein unless it is
proved, by clear and convincing evidence, in an
action brought against the General Partner, that it
has not met the standard of Section 5.13(b) herein.
(d) The General Partner is to be liable in damages for
any action that it takes or fails to take as a
General Partner only if it is proved, by clear and
convincing evidence, that its action or failure to
act involved an act or omission undertaken with
deliberate intent to cause injury to the
Partnership or undertaken with reckless disregard
for the best interests of the Partnership.
5.6 Tax Matters Partner. The General Partner shall serve as
the "Tax Matters Partner" for the Partnership (the "TMP") pursuant to Code
Section 6231(a)(7). The TMP shall have the power to (i) enter into a settlement
agreement with the Internal Revenue Service (the "Service") with respect to
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determinations of Partnership tax items that shall bind each Partner who is not
entitled to receive notice of the proceedings from the Service, who is not a
member of a notice group defined in Code Section 6223(b)(2), and who has not
timely filed a statement with the United States Secretary of Treasury (or his
delegate) providing that the TMP shall not have authority to bind the Partner,
which settlement may be on such terms as the TMP shall determine in his sole
discretion to be in the best interests of the Partners as a class; (ii) in his,
her, or its sole discretion, decide whether or not to commence judicial action
for review of Partnership items included in a notice of final Partnership
administrative adjustment, with the selection of the appropriate court and the
Partnership items to be contested; (iii) in his, her, or its sole discretion,
determine whether to appeal from an adverse decision in an action commenced
pursuant to clause (ii) of this Section 5.14 and prosecute any appeal; (iv) in
his, her, or its sole discretion, intervene on behalf of the Partnership in any
judicial action commenced by any other Partner or notice group defined in Code
Section 6223(b)(2) as to Partnership tax items; (v) file a request with the
Service for an administrative adjustment as a substituted Partnership return, or
otherwise, and to request judicial review on behalf of the Partnership as to any
part of a request for administrative adjustment not allowed by the Service, with
the selection of the appropriate court, the Partnership items to be contested,
and the decision whether to appeal from an adverse decision in any such action
to be determined in the sole discretion of the TMP; (vi) in his, her, or its
sole discretion, enter into an agreement with respect to all present or former
Partners to extend the period for assessing any tax that is attributable to any
Partnership item (and no other Person shall be authorized to enter into any such
agreement); (vii) upon receipt of a notice of the commencement of administrative
proceedings by the Service, furnish to the Service the name, address, profits
interest, and taxpayer identification number of each person who is or was a
Partner at any time during the applicable Partnership taxable year and such
revised or additional information as may be required by law; and (viii) conform
to any tax administrative requirements as may be placed on Tax Matters Partners
generally by Treasury Regulations adopted after the date hereof as to income tax
or any other federal tax applicable to the Partnership. Any vacancy in the
office of the TMP shall be filled from among the remaining General Partner in
order of membership interest.
ARTICLE VI
LIMITED PARTNERS
6.1 Limited Liability of Limited Partners. Notwithstanding
anything in this Agreement to the contrary, the liability of the Limited
Partners arising out of or in any manner relating to the Partnership, or its
business shall not exceed the contribution amounts specified or required in
Article III, and Sections 8.2(e) and 11.3, of this Agreement. After such
contributions, the Limited Partners shall have no further liability to
contribute money or otherwise to, or in respect of, the liabilities or
obligations of the Partnership except as otherwise provided under the Act.
6.2 No Participation in Control or Management; Action Taken By
Consent. Except as otherwise provided in this Section 6.2, the Limited Partners
shall not
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take any part or participate in the conduct of, or have any control over, the
business of the Partnership, and the Limited Partners shall not have any right
or authority to act for or to bind the Partnership in their capacity as Limited
Partners. Notwithstanding the foregoing, the Limited Partners may take such
actions and participate in the conduct of the business of the Partnership to the
extent that the Act allows limited partners to do so without adversely affecting
their limited liability under the Act. In accordance with Act Section 3.02(b)(3)
the Limited Partner(s) may take action by consent without a meeting.
6.3 Consent. To the fullest extent permitted by law, the
Limited Partners hereby consent to the exercise by the General Partner of all of
the rights and powers conferred upon the General Partner by this Agreement.
6.4 Power of Attorney. Each of the Limited Partners
irrevocably constitutes and appoints the General Partner and its designated
representative his, her, or its true and lawful attorney to make, execute, swear
to, acknowledge, deliver, and file on his, her, or its behalf:
(a) any certificates required to be filed to evidence
the Limited Partner's admission to the Partnership
and any other instruments, and any amendments
thereto, that may be required to be filed by the
Partnership under the laws of the State of Texas or
any jurisdiction in which the Partnership shall
transact business or in which the General Partner
deems it advisable to file;
(b) any documents, certificates, or other instruments
that may be required or deemed desirable by the
General Partner to effectuate the provisions of
this Agreement or necessary to continue and to
carry on the business of the Partnership; and
(c) all documents, certificates, or other instruments
that may be required to effectuate the dissolution
and termination of the Partnership or the
organization of any successor limited partnership.
It is expressly intended by each of the Limited Partners that the
foregoing power of attorney is coupled with an interest, irrevocable, and shall
survive the disability, including death, of such Limited Partner. The foregoing
power of attorney shall survive the delivery of an assignment by the Limited
Partner of his or her entire interest in the Partnership, except that, if an
assignee of such entire interest is admitted as a substitute Limited Partner,
then the foregoing power of attorney of the assignor Limited Partner shall
survive the delivery of such assignment for the sole purpose of enabling the
General Partner to execute, acknowledge, and file any and all instruments
necessary to effectuate such substitution.
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The power of attorney granted hereby shall not constitute a
waiver of, or be used to avoid, the rights of the Limited Partners to approve
amendments to this Agreement, vote on the removal of the General Partner, or be
used in any other manner inconsistent with the status of the Partnership as a
limited partnership or the limited liability of the Limited Partners.
6.5 Death of a Limited Partner. The death of a Limited Partner
shall not dissolve or terminate the Partnership. In the event of such death, the
personal representative of the deceased Limited Partner shall have all the
economic rights of a Limited Partner in the Partnership to the extent of the
deceased Partner's interest therein, subject to the terms and conditions of this
Agreement, and the estate shall be liable for all of his or her liabilities as a
Limited Partner.
ARTICLE VII
WITHDRAWAL OR REMOVAL OF THE GENERAL PARTNER; TRANSFERS OF GENERAL PARTNER
UNITS
7.1 Transfers of General Partner Units. Subject to that
certain Acknowledgment and Consent attached hereto as Schedule II, and except as
provided in Section 10.3, the General Partner shall not sell, assign, or
encumber any or all of its General Partner Units without the written consent of
a majority in interest of the Limited Partners, and then only if:
(i) the General Partner provides ninety (90) days written
notice to the Partners; and
(ii) the General Partner provides a substitute General
Partner to the Partnership who is approved in writing
by the minimum proportion of the Limited Partners
permitted by law from time to time, but in no event
less than a majority in interest.
7.2 Removal of the General Partner. The General Partner may be
removed by vote of a majority in interest of the Limited Partners, but only for
"cause," which means (a) a final judicial determination or admission of the
General Partner's bankruptcy or insolvency, or (b) a final judicial
determination that the General Partner (i) was grossly negligent or engaged in
willful misconduct in the performance of the General Partner's obligations under
this Agreement, (ii) committed a fraud upon the Partners or upon the
Partnership, (iii) was in material breach of a fiduciary duty owed by the
General Partner as such to any other Partners, or (iv) was in material breach of
the General Partner's obligations under this Agreement. To the extent the
remaining General Partner's interests aggregate less than one per cent (1%) in
interest of the Partnership, the removed General Partner shall forfeit equal
portions of its partnership interests to any remaining General Partner.
15
ARTICLE VIII
TRANSFER OF LIMITED PARTNER UNITS;
ADMISSION OF ADDITIONAL LIMITED PARTNERS
8.1 Right of First Refusal.
(a) A Limited Partner may Transfer his, her, or
its Partnership Units, in whole or in part,
subject to the right of first refusal in the
remaining Partners to acquire such Units
pursuant to this Section 8.1. However, in no
event shall the assignee of such Units
become, or exercise the rights of, a Limited
Partner unless the General Partner, in its
sole discretion, permits the assignee to
become a substitute Limited Partner with
respect to such transferred Units and the
assignee executes a copy of or joinder to
this Agreement.
(b) Any Limited Partner who wishes to Transfer
any Partnership Units, in whole or in part,
or who has reason to believe that an
involuntary Transfer or a Transfer by
operation of law is reasonably foreseeable,
shall first give every other Partner written
notice of the intention to Transfer such
Units, or portion thereof (the "Offered
Units"), or of such Limited Partner's
knowledge that such involuntary Transfer or
Transfer by operation of law is reasonably
foreseeable. Such notice must contain a
description of the Offered Units, the
consideration that will be paid (if any),
and the terms of the Transfer and of any
payment of consideration (including, but not
limited to, the relative percentages of cash
and debt, and the duration, interest rate,
and payment schedule of any debt
instruments), and the name, address (both
home and office), and business or occupation
of the person to whom such Offered Units
would be transferred, and any other facts
that are or would reasonably be deemed
material to the proposed Transfer.
(c) Upon the receipt of such notice, each other
Partner shall have a right to buy a
Proportionate Share of the Offered Units at
the purchase price set forth in the notice.
"Proportionate Share" means that number of
Offered Units equal to the product of the
number of all Offered Units multiplied by a
fraction, the numerator of which is the
number of Units held by such Exercising
Partner, and the denominator of which is the
number of Units held by all Exercising
Partners. If one or more Partners fails to
exercise the purchase option pursuant to
this Section 8.1,
16
then the term "Proportionate Share" means,
for each Partner who exercises a purchase
option under this Section 8.1 (an
"Exercising Partner") with respect to this
Transfer when first entitled, such
Exercising Partner's Partnership Units as is
proportionate to the Partnership Units of
all other Exercising Partners, reapplying
the provisions of this paragraph (c) until
the Partners, in the aggregate, have had the
opportunity to exercise rights of first
refusal with respect to the entire Offered
Units. Each Partner may exercise this right
of first refusal by giving the transferring
Limited Partner and the General Partner
written notice within thirty (30) calendar
days after receipt of the notice.
(d) If the nontransferring Partners do not elect
to buy all of the Offered Units, the
transferring Limited Partner may complete
the intended Transfer upon the terms set
forth in the notice. If such Transfer is not
completed within thirty (30) calendar days
after expiration of the last exercise
period, any attempted Transfer will be
deemed pursuant to a new offer and this
section shall again apply.
(e) The purchase of Partnership Units pursuant
to this Section 8.1 shall take place at a
closing to be held not later than the tenth
(10th) day after the earlier of: (i) the
date on which the Partners' purchase options
have all expired, or (ii) the earliest date
on which the Partners in the aggregate
exercise their purchase options, if any, to
buy all of the Offered Units. The closing
will be held during normal business hours at
the Partnership's principal business office,
or at any other place to which the parties
agree. At the closing, the buyer shall pay
for the Offered Units and the Partnership
shall change its books to indicate the
change in ownership of the Partnership
Units.
8.2 Requirements to Transfer. Subject to that certain
Acknowledgment and Consent attached hereto as Schedule II, any and all Transfers
made pursuant to this Article VIII are subject in all respects to the following:
(a) No Transfer shall be made without assurances
to the reasonable satisfaction of the
General Partner that the Transfer does not
violate any law applicable to the
Partnership.
(b) The General Partner may reasonably require
of the transferor or transferee, as a
condition to the approval of such Transfer:
(i) (A) registration under the Securities
Act
17
and applicable state securities laws, or (B)
an opinion of counsel, from counsel and in
form and substance satisfactory to the
General Partner, that such Transfer is
exempt from registration under the
Securities Act and/or applicable state
securities laws; and (ii) representations
and warranties from the transferee or the
transferring Member concerning the facts and
circumstances establishing the basis for the
availability of exemptions under the
Securities Act and other reasonable
assurances relating to any other applicable
laws.
(c) As a condition to admission as a substitute
Partner, an assignee, transferee, legatee,
or distributee of all or part of the Units
of any Partner shall execute and acknowledge
such instruments, in form and substance
satisfactory to the General Partner, as the
General Partner reasonably deems necessary
or advisable to effect such admission and to
confirm the agreement of the Person being
admitted as such substitute Partner to be
bound by all the terms and provisions of
this Agreement. Such assignee, transferee,
legatee, or distributee shall pay all
reasonable expenses in connection with such
admission as a substitute Partner,
including, but not limited to, legal fees
and costs incurred by the Partnership in
connection therewith.
(d) If the General Partner determine that a
proposed Transfer would, alone or in
conjunction with one or more other
Transfers, terminate the Partnership as a
partnership for federal income tax purposes
(a "Termination"), the General Partner may
prohibit the proposed Transfer from
occurring until the earliest time, as
determined by the General Partner, that the
Transfer may occur without causing a
Termination. If at any time more than one
Transfer is being delayed under this Section
8.2(d), the Transfers are to be made in the
order in which the General Partner received
notice of such Transfers.
(e) If a Transfer causes a Termination, the
Partner making the Transfer shall be liable
to the Partnership and each of the other
Partners for any taxes, fines, penalties,
damages, or losses which may be due as a
result of the Termination, including,
without Imitation, costs of enforcement of
the Partnership's power to void or otherwise
prohibit the Transfer or attempted Transfer.
8.3 Acquit Partnership. Following the effective date of
Transfer of a Partnership Units pursuant to Section 8.1(e) herein, the
Partnership shall pay all finisher
18
distributions of profits or other compensation by way of income or returns of
capital in respect of the interest so assigned to the assignee thereof. In the
absence of compliance with Section 8.1, any payment in respect thereto by the
Partnership to the assigning Limited Partner, or his, her, or its personal
representative, shall acquit the Partnership of liability to the extent of such
payment to any person who may have an interest in such payment by reason of a
Transfer, or by reason of such Partner's death or otherwise.
8.4 Transfers by General Partner. Except as provided in Section 10.3,
the assignee of a General Partner Unit shall not be admitted as a substitute
General Partner without the written consent of all the other Partners. In no
event shall the assignee of any Partnership Units from a General Partner become,
or exercise the rights of a Limited Partner unless the remaining General
Partner, if any, in their sole discretion jointly permit the assignee to become
a substitute Limited Partner with respect to such transferred Units and the
assignee executes a copy of or joinder to this Agreement. The General Partner
shall not Transfer its Partnership Units in a manner such that the Partnership
would have no General Partner after such Transfer.
ARTICLE IX
AMENDMENT OF AGREEMENT
This Agreement may be amended only with the unanimous written consent
of all the Partners.
ARTICLE X
DISSOLUTION AND LIQUIDATION
10.1 Events Causing Dissolution. Subject to the provisions of Section
10.3 herein, the Partnership shall be dissolved only upon the first to occur of
any one of the following events:
(a) the written consent of all the Partners;
(b) pursuant to Act Section 8.01(3) an event of withdrawal of a
General Partner unless either there remains at least one
General Partner or within ninety (90) days after the event of
withdrawal all remaining Partners agree in writing to continue
the business or activities of the Partnership and agree to the
appointment effective as of the date of withdrawal, of one or
more new General Partners; and
(c) the entry of a decree of judicial dissolution under Section
8.02 of the Act.
19
10.2 Winding Up and Termination. Upon the dissolution of the
Partnership, the affairs of the Partnership shall be wound up and terminated in
accordance with Act Section 8.04.
Upon the winding up of the Partnership, the Partnership Property shall
be distributed as follows:
(a) to creditors, including Partners who are creditors (other
than solely as a result of the application of Act Section
6.06), to the extent otherwise permitted by law, in
satisfaction of liabilities of the Partnership (whether by
payment or the making of reasonable provision for payment
thereof);
(b) to Partners and former Partners in satisfaction of
liabilities for distributions pursuant to Act Sections 6.01
or 6.04;
(c) to the Partners in an amount equal to the positive capital
account balance of each Partner, but if such remaining
assets are not sufficient to make such a payment in full,
such remaining assets shall be distributed among the
Limited Partners in proportion to the respective amounts
owed to each, and if any assets are to be distributed in
kind, the Partners' capital accounts shall first be
adjusted so as to reflect the gain or loss that would be
realized if such assets had been sold for their respective
fair market values on the date of distribution; and
(d) the balance of such assets, if any, to the Partners in
proportion to the number of Units held by each.
10.3 Election to Continue the Partnership. Upon the occurrence of an
event set forth in Section 10.1(b) herein, the business of the Partnership shall
continue to be carried on if, within ninety (90) days after the occurrence of
such event, the remaining Partners elect to continue the Partnership by the
affirmative vote of a majority of the remaining Partners. Upon such election,
the business of the Partnership shall continue pursuant to this Agreement and
under the Act; provided, however that the remaining Partners then elect a
substitute General Partner who agrees to act as General Partner and continue the
Partnership. A substitute General Partner may be elected by the vote of the
minimum proportion of remaining Partners then permitted by law, but not less
than a majority in interest. If a substitute General Partner is so elected and
accepts, the substitute General Partner shall acquire from the departed General
Partner(s) an interest in the Partnership that entitles the substitute General
Partner to hold in the aggregate at least a one per cent (1%) interest in all
items or amounts allocated or distributed as specified pursuant to Article IV.
Subject to other written agreements and exceptions agreed to by all the
remaining Partners, the substitute General Partner shall assume from and after
the date of substitution and upon becoming a party to this Agreement, all the
20
rights, powers, and obligations of a General Partner under this Agreement. In
the event a substituted General Partner has not been appointed and admitted
within a reasonable time after the special meeting called pursuant to this
section, and there is no General Partner remaining, the Partnership shall be
dissolved and liquidated as provided in Section 10.2.
10.4 Final Accounting. Each of the Partners shall be furnished an
unaudited statement setting forth the assets and liabilities of the Partnership
as of the date of the winding up of the Partnership's affairs. Upon compliance
by the winding-up General Partner or Limited Partners with the distribution plan
set forth in Section 10.2, the Limited Partners shall cease to be limited
partners and the liquidator (whether a General Partner, Limited Partner, or any
representative of the foregoing) shall execute and cause to be filed a
certificate of cancellation of the certificate of limited partnership of the
Partnership and any and all other documents necessary with respect to such
termination and cancellation as provided in Section 2.03 of the Act.
10.5 Deficit Capital Account of a General Partner. If the Partnership
is liquidated and a General Partner has a deficit balance in its capital account
after taking into account all adjustments thereto, such General Partner shall
contribute capital to the Partnership in an amount sufficient to eliminate such
deficit by the end of the taxable year in which the liquidation occurs (or, if
later, within ninety (90) days after the date of such liquidation).
ARTICLE XI
FISCAL MATTERS AND WITHHOLDING
11.1 Tax Information and Elections. Within a reasonable period of time
after the end of each Fiscal Year, the General Partner shall furnish to the
Partners all information necessary to permit the Partners to prepare all
Federal, state and local tax returns they are required to file for the Fiscal
Year. The Partnership may make such elections, including any election under Code
Section 754, and use such methods of depreciation and accounting, as the General
Partner determine to be most favorable to the Partners.
11.2 Books and Records. The Partnership books shall be kept in
accordance with the method of accounting used by the Partnership for Federal
income tax purposes and as otherwise may be required by law. The Limited
Partners or their representatives shall have the right to inspect and copy the
books and records of the Partnership at all reasonable times after adequate
notice to the General Partner. The General Partner shall maintain and preserve
during the Term of the Partnership and for seven (7) years thereafter all
accounts, books, and other relevant Partnership documents.
The General Partner shall maintain a list of the names and addresses
of all Partners at the principal office of the Partnership. Such list shall be
made available for the review of any Limited Partner or his representative at
reasonable times, and, upon request either in person or by mail, the General
Partner shall furnish a copy of such list to any Limited Partner or his
representative for the cost of reproduction and mailing.
21
11.3 Foreign Partners and Non- Resident Partners.
(a) Each Partner is to deliver to the General Partner
such documentation as may be required by the General
Partner to determine to the satisfaction of the
General Partner (and as may otherwise be required by
law) whether such Partner is a "foreign partner," a
"foreign person," or a "United States person," as
those terms are described and defined in Code
Sections 1446(e) and 7701(a). If a Partner fails to
execute and deliver to the General Partner a
nonforeign affidavit or provide the General Partner
with other satisfactory evidence as to negate his,
her, or its status as a "foreign partner" or
"foreign person" in accordance with the provisions
of this Section 11.3(a), then: (i) the Partnership
shall be entitled hereby to withhold from
allocations and distributions to such Partner the
amounts required by the Code; (ii) such Partner
shall contribute to the Partnership, as and when
requested by the General Partner, an amount equal to
the amount of tax the Partnership will be required
to pay over to the Internal Revenue Service under
the Code, including Section 1446 thereof by reason
of such Partner's status as a "foreign partner" or
"foreign person"; and (iii) such Partner (the
"Foreign Partner") shall indemnify, defend, and hold
harmless the Partnership and each and every other
Partner from and against any and all claim and
assessments that may be asserted by any foreign,
federal, state, or local tax authority with respect
to such Foreign Partner.
(b) Each Partner is to deliver to the General Partner
such documentation as may be required by the General
Partner from time to time to determine to the
satisfaction of the General Partner (and as may
otherwise be required by law) whether such Partner
is subject to income tax withholding by the
Partnership with regard to allocations of
Partnership income to such Partner from sources
within the State of Texas or any other jurisdiction
in which the Partnership conducts its business. If a
Partner fails to execute and deliver to the General
Partner an affidavit or provide the General Partner
with other satisfactory evidence as to negate his,
her, or its status as subject to withholding in such
jurisdiction in accordance with the provisions of
this Section 11.3(b), then: (i) the Partnership
shall be entitled hereby to withhold from
allocations and distributions to such Partner the
amounts required by the applicable laws of such
jurisdiction; (ii) such Partner shall contribute to
the Partnership, as and when requested by the
General Partner,
22
an amount equal to the amount of tax the Partnership
will be required to pay over to the competent tax
authority of such jurisdiction by reason of such
Partner's status as subject to withholding by the
Partnership with regard to allocations of
Partnership income to such Partner; and (iii) such
Partner (the "Non-Resident Partner") shall
indemnify, defend, and hold harmless the Partnership
and each and every other Partner from and against
any and all claims and assessments that may be
asserted by any state or local tax authority with
respect to such Non-Resident Partner.
ARTICLE XII
INDEMNIFICATION
12.1 Right to Indemnity. If any Partner (an "Indemnitee") was or
is a party or is threatened to be made a party in any threatened, pending, or
completed action, suit, proceeding, or investigation involving a cause of action
or alleged cause of action for damages or other relief arising from or related
to the business or affairs of the Partnership or the offer or sale of any Units,
the Partnership (but without recourse to the separate assets of any Partner
other than the General Partner) shall indemnify the Indemnitee against all
losses, costs, and expenses, including attorneys' fees, judgments, and amounts
paid in settlement actually and reasonably incurred by the Indemnitee in
connection with the action, suit, proceeding, or investigation, so long as the
Indemnitee has met the standard set forth in Section 5.13 of this Agreement. The
termination of any action, suit, proceeding, or investigation by judgment,
order, settlement, or conviction upon a plea of nolo contendere or its
equivalent does not, of itself, create a presumption that an Indemnitee did not
act in good faith and in a manner he, she, or it reasonably believed to be in or
not opposed to the best interests of the Partnership and with the care that an
ordinarily prudent person in a like position would use under similar
circumstances and, with respect to any criminal action, proceeding, or
investigation, that he, she, or it had reasonable cause to believe his, her, or
its conduct was unlawful.
12.2 Determination by General Partner. Unless indemnification is
ordered by a court, the determination for purposes of Section 12.1 of this
Agreement as to whether an Indemnitee met the standard set forth in this
Agreement is to be made in the specific case by the General Partner in any
manner permitted by this Agreement and the Act.
12.3 Advancement Of Expenses. Expenses, including attorneys'
fees, incurred by any Indemnitee in defending an action, suit, proceeding, or
investigation shall be paid by the Partnership as they are incurred, in advance
of the final disposition of the action, suit, proceeding, or investigation, but
only upon the terms and conditions as the General Partner may determine.
23
12.4 Other Rights to Indemnity or Reimbursement; Survival.
Notwithstanding the foregoing, indemnification under this Article XII is to be
provided only with respect to losses, costs, expenses, judgments, and amounts
which otherwise are not compensated for by insurance carried for the benefit of
the Partnership. Indemnification under this Agreement is not exclusive of any
other rights to which those seeking indemnification may be entitled under any
rule of law (whether common law or statutory), agreement, or arrangement,
whether as to action in an official capacity and as to action in another
capacity while holding such position or while employed by or acting as agent for
the Partnership, and continues as to an Indemnitee who has ceased to serve in
any capacity on behalf of the Partnership and inures to the benefit of the
heirs, successors, executors, and administrators of the Indemnitee.
12.5 Indemnification of Employees and Agents. The Partnership
may indemnify any employee or agent of the Partnership upon such terms and
conditions, if any, as the General Partner consider appropriate.
12.6 Insurance. The Partnership may purchase and maintain
insurance or furnish similar protection, including, but not limited to, trust
funds, letters of credit, or self-insurance, for or on behalf of any Person who
is or was a Partner, employee, or agent of the Partnership, or who is or was
serving at the request of the Partnership as a partner, manager, director,
trustee, officer, employee, or agent of another partnership, limited liability
company, corporation, joint venture, trust, or other enterprise, so long as the
insurance is available on acceptable terms as determined by the General Partner.
The insurance or similar protection purchased or maintained for such Person or
Persons may be for any liability asserted against them and incurred by them in
any capacity described in this Section 12.6 or for any liability arising out of
their status as described in this Section 12.6, whether or not the Partnership
would have the power to indemnify them against that liability under this
Agreement. Insurance may be so purchased from or so maintained with a Person in
which the Partnership has a financial interest.
12.7 Savings Clause. If this Article XII or any portion hereof
is invalidated on any ground by any court of competent jurisdiction, then the
Partnership shall nevertheless indemnify each Indemnitee as to costs, charges,
and expenses (including attorneys' fees), judgments, fines, and amounts paid in
settlement with respect to any action, suit, proceeding, or investigation,
whether civil, criminal, administrative, or investigative, including any action
by or in the right of the Partnership, to the fullest extent permitted by any
applicable portion of this Article XII that has not been invalidated and to the
fullest extent permitted by applicable law.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
13.1 Notices and Addresses. All notices required or permitted
hereunder shall be in writing sent by United States postage prepaid mail or by
telegraph to the Partners at their addresses set forth in this Agreement or such
other address of which the Partnership has received notice. Notices, consents,
requests, reports, and other
24
documents shall be deemed given or served when delivered, or, if mailed, on the
day after the day of mailing, and if sent by telegram, twenty-four (24) hours
after the time of dispatch. Any notice to be delivered to the Partnership shall
be delivered to each of the General Partner.
13.2 Waiver of Appraisal. If any Partner shall die, the
inventory and appraisement of the property of the Partnership provided for under
the laws of the State of Texas, any comparable provision of the law of any other
state, or any similar provision of law which may have been enacted in
substitution therefor, shall be dispensed with and the interest of such Partner
in the Partnership shall be settled and disposed of as provided in this
Agreement.
13.3 Confidentiality. No Partner may, without the unanimous
written consent of the General Partner, divulge to any other person or entity
any information whatsoever that relates in any way to the services, business or
operations of the Partnership, whether before or after the Partnership's
dissolution.
13.4 Pronouns and Plurals. All pronouns and any variations
thereof shall be deemed to refer to the masculine, feminine, neuter, singular,
or plural, as the identity of the person or persons may require.
13.5 Further Action. The parties hereto shall execute and
deliver all documents, provide all information and take or forebear from all
such action as may be necessary or appropriate to achieve the purposes of this
Agreement.
13.6 Counterparts. This Agreement may be executed (whether in
original or via facsimile transmission) in one or more counterparts all of which
together shall constitute one agreement, binding on all parties hereto,
notwithstanding that all the parties are not signatories to the same
counterpart.
13.7 Applicable Law. This Agreement and the rights of the
Partners shall be interpreted and enforced in accordance with the laws of the
State of Texas.
13.8 Benefits. This Agreement shall inure to the benefit of and
shall bind the parties hereto, their heirs, executors, administrators, permitted
successors and permitted assigns.
13.9 Severability. The invalidity or unenforceability of any
provisions of this Agreement in a particular respect shall not affect the
validity and enforceability of any other provisions of this Agreement or of the
same provision in any other respect.
13.10 Reference to Statutory Provisions. All references to
statutory provisions shall be deeded to include reference to corresponding
provisions of subsequent law.
13.11 Waiver of Action for Partition. Each of the Partners
irrevocably waives, during the term of the Partnership and during the period of
its liquidation
25
following any dissolution, any right that such Partner may have to maintain any
action for partition with respect to any of the assets of the Partnership.
13.12 Securities Act Matters. Each Partner represents and
warrants to the Partnership and every other Partner that such Partner:
(a) is domiciled in the United States;
(b) is fully aware of, and is capable of bearing, the risks
relating to an investment in the Partnership;
(c) understands that his, her, or its interest in the
Partnership has not been registered under the Securities
Act or the securities laws of any jurisdiction in
reliance upon exemptions contained in those laws; and
(d) has acquired his, her, or its interest in the
Partnership for his, her, or its own account, with the
intention of holding the interest for investment, and
without any intention of participating directly or
indirectly in any redistribution or resale of any
portion of the interest in violation of the Securities
Act or any applicable law, including, but not limited
to, the requirement that the Partner shall not Transfer
(except to a Person resident within the State of North
Carolina) any of his, her, or its Units for a period of
nine (9) months following the Organization Date, and
subject in all other respects to the provisions of
Article VIII of this Agreement.
13.13 Integrated Agreements. This Agreement constitutes the
entire understanding and agreement among the parties hereto with respect to the
subject matter hereof and there are no agreements, understandings, restrictions,
representations, or warranties among the parties other than those set forth or
provided for herein.
13.14 Other Business Ventures. The Partners, including the
General Partner, may engage in and possess an interest in any other professional
or business venture of any nature and description whatsoever, independently or
with others, including, but not limited to, the acquisition, ownership, and
operation of ventures competitive with, and similar in nature to, the business
conducted by the Partnership.
26
IN WITNESS WHEREOF, the undersigned have executed and
delivered this Agreement effective as of the Organization Date.
PCA NATIONAL, INC., a North Carolina corporation,
General Partner
Attest:
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇, President
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇.
-------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇., Secretary
PCA PHOTO CORPORATION OF CANADA, INC., a North Carolina
corporation, Limited Partner
Attest:
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇, President
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇.
-------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇., Secretary
27
SCHEDULE I
PARTNERS, CONTRIBUTIONS, AND PARTNERSHIP UNITS
--------------------------------------------------------------------------------
Name Contribution Number of Type of Units
Units
--------------------------------------------------------------------------------
PCA National, Inc.* See Schedule I-A 1,000 General Partner
attached hereto.
--------------------------------------------------------------------------------
PCA Photo Corporation of See Schedule I-A 99,000 Limited Partner
Canada, Inc. attached hereto.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Total 100,000
--------------------------------------------------------------------------------
*The Partners contemplate that PCA National, Inc., a North Carolina corporation
shall merge with and into PCA Delaware Merger Corporation, a Delaware
corporation which soon thereafter shall convert into PCA National LLC, a
Delaware limited liability company. Each of the foregoing entities shall
constitute and succeed to the General Partner of the Partnership for so long as
it continues to exist and its immediate successor has not yet succeeded to it
by merger or by conversion.
28
