LIMITED PARTNERSHIP AGREEMENT
OF
OKLAHOMA HILLS GAS, L.P.
MARCH 6, 2003
TABLE OF CONTENTS
PAGE
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ARTICLE I. DEFINITIONS 1
ARTICLE II. ORGANIZATION 6
2.1 Name 6
2.2 Place of Business 6
2.3 Registered Office 6
ARTICLE III. PURPOSE 6
3.1 Purpose 6
3.2 Powers of Partnership 6
ARTICLE IV. TERM 7
ARTICLE V. CONTRIBUTIONS TO CAPITAL AND STATUS OF PARTNERS 7
5.1 Capital Contributions and Loan Amounts 7
5.2 Additional Limited Partners 8
ARTICLE VI. DISTRIBUTIONS; ALLOCATION OF PROFITS AND LOSSES; CAPITAL
ACCOUNTS 8
6.1 Cash Available for Distribution 8
6.2 Allocation of Profits and Losses 8
6.3 Special Tax Allocations; Other Allocation Rules; Tax Allocations: Code Section
704(c) 9
6.4 Allocations in the Event of Transfer 9
6.5 Capital Accounts 10
6.6 Tax Distributions 11
ARTICLE VII. MANAGEMENT; RIGHTS, POWERS, AND OBLIGATIONS OF THE
PARTNERS 11
7.1 Management of the Partnership 11
7.2 Certain Limitations of the General Partner 11
7.3 Meetings of the Partners 12
7.4 Voting by the Partners 12
7.5 Independent Activities 13
7.6 Execution of Agreements and Instruments 13
7.7 Holding of Assets 13
7.8 Prior Expenses 13
ARTICLE VIII. TRANSFER OF INTERESTS IN THE PARTNERSHIP 13
8.1 Prohibited Transfers 13
8.2 General Partner 13
8.3 Limited Partners 14
ARTICLE IX. WITHDRAWAL AND REMOVAL OF A PARTNER 16
9.1 Withdrawal 16
9.2 Removal of a Limited Partner 16
9.3 Death or Disability of a Limited Partner 17
9.4 Effect of Removal 17
9.5 Valuation of the Interest of a Partner 17
9.6 Payments to a Removed Limited Partner 17
ARTICLE X. DISSOLUTION AND WINDING UP OF THE PARTNERSHIP 18
10.1 Dissolution of the Partnership 18
10.2 Winding Up of the Partnership 18
10.3 Distribution In Kind 19
ARTICLE XI. BOOKS OF ACCOUNTS, ACCOUNTING, REPORTS, FISCAL YEAR,
BANKING AND TAX MATTERS PARTNER 19
11.1 Accounting, Books and Records 19
11.2 Other Records 19
11.3 Reports 20
11.4 Fiscal Year 20
11.5 Partnership Funds 20
11.6 Tax Matters Partner 20
ARTICLE XII. INDEMNIFICATION 21
12.1 Indemnification 21
ARTICLE XIII. MISCELLANEOUS 22
13.1 Agreement for Further Execution 22
13.2 Amendments 22
13.3 Notices 23
13.4 Governing Law and Jurisdiction 23
13.5 Binding Nature of Agreement 24
13.6 Additional Partners 24
13.7 Validity 24
13.8 Entire Agreement 24
13.9 Indulgences, Etc 24
13.10 Execution in Counterparts 24
13.11 Paragraph 24
13.12 Number of Days 24
13.13 Interpretation 24
13.14 Corporate Authority 25
13.15 Third Party Beneficiaries 25
13.16 Appointment of Attorney-in-fact 25
Exhibit A - Partners
Exhibit B - Special Allocations
LIMITED PARTNERSHIP AGREEMENT
OF
OKLAHOMA HILLS , L.P.
THIS LIMITED PARTNERSHIP AGREEMENT is entered into effective as of March 6,
2003, by and among NANG, Incorporated, a Delaware corporation (the "General
Partner"), and those persons listed as Limited Partners on Exhibit A attached
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hereto, as amended from time to time after the date hereof.
Intending to be legally bound, the parties hereto agree as follows:
ARTICLE I. DEFINITIONS.
Capitalized terms used in this Agreement and not defined elsewhere herein
shall have the following meanings:
"Act" means the Delaware Revised Uniform Limited Partnership Act, as
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amended from time to time.
"Adjusted Capital Account Deficit" means, with respect to any Partner, the
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deficit balance, if any, in such Partner's Capital Account as of the end of the
relevant fiscal year, after giving effect to the following adjustments:
(i) credit to such Capital Account any amounts which such Partner
is obligated to restore or is deemed to be obligated to restore pursuant to the
next to last sentences of Regulations Sections 1 .704-(2)(g)(1) and 1
..704-2(i)(5); and
(ii) debit to such Capital Account the items described in Sections
1.704-1 (b)(2)(ii)(d)(4), (5), and (6) of the Regulations.
The foregoing definition of Adjusted Capital Account Deficit is intended to
comply with the provisions of Section l.704-1(b)(2)(ii)(d) of the Regulations
and shall be interpreted consistently therewith.
An "Affiliate" (whether or not capitalized) of, or a Person, association,
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partnership or corporation "affiliated" with, a specified Person, association,
partnership or corporation, is a Person, association, partnership or corporation
that directly, or indirectly through one or more intermediaries, controls, is
controlled by, or is under common control with, the specified Person,
association, partnership or corporation.
"Agreement" means this limited partnership agreement, as the same may be
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amended from time to time.
"Appraiser" has the meaning set forth in Section 9.5(a) of this Agreement.
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"Bankruptcy" means, with respect to any Person, a "Voluntary Bankruptcy" or
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an "Involuntary Bankruptcy." A "Voluntary Bankruptcy" means, with respect to any
Person, the inability of such Person generally to pay its debts as such debts
become due, or an admission in writing by such Person of its inability to pay
its debts generally or a general assignment by such Person for the benefit of
creditors; the filing of any petition or answer by such Person seeking to
adjudicate it a bankrupt or insolvent, or seeking for itself any liquidation,
winding up, reorganization, arrangement, adjustment, protection, relief, or
composition of such Person or its debts under any law relating to bankruptcy,
insolvency or reorganization or relief of debtors, or seeking, consenting to, or
acquiescing in the entry of an order for relief or the appointment of a
receiver, trustee, custodian, or other similar official for such Person or for
any substantial part of its property, or corporate action taken by such Person
to authorize any of the actions set forth above. An "Involuntary Bankruptcy"
means, with respect to any Person, without the consent or acquiescence of such
Person, the entering of an order for relief or approving a petition for relief
or reorganization or any other petition seeking any reorganization, arrangement,
composition, readjustment, liquidation, dissolution, or other similar relief
under any present or future bankruptcy, insolvency or similar statute, law, or
regulation, or the filing of any such petition against such Person which
petition shall not be dismissed within ninety (90) days, or, without the consent
or acquiescence of such Person, the entering of an order appointing a trustee,
custodian, receiver, or liquidator of such Person or of all or any substantial
part of the property of such Person which order shall not be dismissed within
sixty (60) days.
"Capital Account" means, with respect to any Partner, such Partner's
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Capital Account determined in accordance with Section 6.6.
"Capital Contribution" means, with respect to any Partner, the amount of
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money contributed to the Partnership by such Partner pursuant to Section 5.2.
"Cash Available for Distribution" for any fiscal year or other period means
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the excess of (a) the amount of gross cash receipts of any kind received by the
Partnership (including from any reserves previously established which the
General Partner determines are no longer required by the Partnership) less (b)
(i) Operating Expenses, (ii) any reserves established or increased by the
General Partner which it deems reasonably necessary for the operation of the
Partnership including, reserves for working capital and maturing debt
obligations and other cash requirements of the Partnership, and (iii) amounts
received by the Partnership as Capital Contributions.
"Certificate of Limited Partnership" means the Partnership's Certificate of
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Limited Partnership filed with the Secretary of State of the State of Delaware,
as the same may be amended from time to time.
"Code" means the Internal Revenue Code of 1986, as amended. All references
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herein to Code sections shall include corresponding provisions of future federal
tax statutes.
"Depreciation" means, for each fiscal year or other period, an amount equal
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to the depreciation, amortization or other cost recovery deduction allowable
with respect to an asset for such year or other period, except that if the Gross
Asset Value of an asset differs
from its adjusted basis for federal income tax purposes at the beginning of such
year or other period, Depreciation shall be an amount which bears the same ratio
to such beginning Gross Asset Value as the federal income tax depreciation,
amortization
or other cost recovery deduction for such year or other period bears to such
beginning adjusted tax basis; provided, however, that if the federal income tax
depreciation, amortization or other cost recovery deduction for such year or
other period is zero, Depreciation shall be determined with reference to such
beginning Gross Asset Value using any reasonable method selected by the General
Partner.
"General Partner" means NANG, Incorporated.
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"Gross Asset Value" means, with respect to any asset, the asset's adjusted
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basis for federal income tax purposes, except as follows:
(i) The initial Gross Asset Value of any asset contributed by a
Partner to the Partnership shall be the gross fair market value of such asset,
as agreed by the contributing Partner and the General Partner;
(ii) The Gross Asset Values of all Partnership assets shall be
adjusted to equal their respective gross fair market values, as determined by
the General Partner, as of the following times: (a) the acquisition of an
additional Interest in the Partnership (other than pursuant to the original
purchase at the time of formation of the Partnership) by any new or existing
Partner in exchange for more than a de minimis Capital Contribution, (b) the
distribution by the Partnership to a Partner of more than a de minim is amount
of Partnership Property (other than cash) as consideration for an Interest in
the Partnership; and (c) the liquidation of the Partnership within the meaning
of Regulations Section 1.704-1(b)(2)(ii)(g): provided, however, that the
adjustments pursuant to clauses (a) and (b) above shall be made only if the
General Partner reasonably determines that such adjustments are necessary or
appropriate to reflect the relative economic interests of the Partners in the
Partnership;
(iii) The Gross Asset Value of any Partnership asset distributed
to any Partner shall be the gross fair market value of such asset on the date of
distribution;
(iv) The Gross Asset Values of Partnership assets shall be
increased (or decreased) to reflect any adjustments to the adjusted basis of
such assets pursuant to Code Section 734(b) or Code Section 743(b), but only to
the extent that such adjustments are taken into account in determining Capital
Accounts pursuant to Regulations Section 1.704-1(b)(2)(iv)(m) and Section 6.3(h)
hereof, provided, however, that Gross Asset Values shall not be adjusted
pursuant hereto to the extent the General Partner determines that an adjustment
pursuant hereto is necessary or appropriate in connection with a transaction
that would otherwise result in an adjustment pursuant hereto; and
(v) If the Gross Asset Value of an asset has been determined or
adjusted pursuant hereto, such Gross Asset Value shall thereafter be adjusted by
the Depreciation taken into account with respect to such asset for purposes of
computing Profits and Losses.
"Indemnitee" has the meaning set forth in Section 12.1(a) of this
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Agreement.
"Interest" means a Partner's economic rights and other interest in the
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Partnership as a Partner as provided in this Agreement.
"Limited Partner" means any person named as a Limited Partner on Exhibit A
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in his, her or its capacity as a Limited Partner of the Partnership and any
other person admitted to the Partnership as a Limited Partner.
"Limited Partner A" means Far Group, Inc., a Washington corporation.
"Limited Partner B" means BWP Gas LLC, a Delaware Limited Liability
Company.
"Majority in Interest" means with respect to any particular group of
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Partners, those Partners whose Percentage Interests in the aggregate are greater
than fifty percent (5 0%) of the Percentage Interests owned by all of the
Partners within the group.
"Nonrecourse Deductions" has the meaning set forth in Section 1
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..704-2(b)(1) of the Regulations.
"Nonrecourse Liability" has the meaning set forth in Section 1 .704-2(b)(3)
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of the Regulations.
"Operating Expenses" means cash disbursements for operating expenses of,
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and proper payments by, the Partnership, including, but not limited to (i) legal
representation relating to the Partnership, (ii) accounting and tax preparation
and (iii) amounts paid to satisfy the Partnership's obligations with respect to
working interests in oil and gas wells held by the Partnership.
"Partner" means the General Partner or any Limited Partner.
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"Partner Nonrecourse Debt" has the meaning set forth in Section 1
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..704-2(b)(4) of the Regulations.
"Partner Minimum Gain" means an amount, with respect to each Partner
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Nonrecourse Debt, equal to the Partnership Minimum Gain that would result if
such Partner Nonrecourse Debt were treated as a Nonrecourse Liability,
determined in accordance with Section 1 .704-2(i)(3) of the Regulations.
"Partner Nonrecourse Deductions" has the meaning set forth in Sections 1
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..704-2(i)(1) and l.704-2(i)(2) of the Regulations.
"Partnership" means 1025 Partners, L.P., a Delaware limited partnership.
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"Partnership Minimum Gain" has the meaning set forth in Sections 1
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..704-2(b)(2) and 1.704-2(d) of the Regulations.
"Partnership Property" means all properties and assets which the
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Partnership may own or have an interest in from time to time.
"Percentage Interest" means the Interest of a Partner expressed as a
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percentage. The Percentage Interest of each Partner as of the date hereof is as
set forth on Exhibit A.
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"Person" means any individual, corporation, partnership, limited liability
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company, joint venture, association, joint-stock company, trust,
non-incorporated organization or government or any agency or political
subdivision thereof.
"Prime Rate" means the interest rate published from time to time by the
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Wall Street Journal as the prime lending rate (regardless of how such rate is
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specifically described).
"Profitor Profits" and "Loss or Losses" means, for each fiscal year or
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other period, an amount equal to the Partnership's taxable income or loss for
such year or period, as determined by the Partnership's accountants, in
accordance with Code Sec.703(a) (for this purpose, all items of income, gain,
loss or deduction required to be stated separately pursuant to Sec.703(a)(1) of
the Code shall be included in Profits or Losses), with the adjustments required
to comply with the capital account maintenance rules of Treasury Regulations
Sec. 1.704-1 (b)(2)(iv) and the following adjustments:
(i) Any income of the Partnership that is exempt from federal
income tax and not otherwise taken into account in computing Profits and Losses
shall be added back;
(ii) Any expenditures of the Partnership described in
Sec.705(a)(2)(B) of the Code or treated as Sec.705(a)(2)(B) expenditures
pursuant to Treasury Regulations Sec.1.704-(b)(2)(iv)(i), and not otherwise
taken into account in computing Profits or Losses, shall be subtracted from such
taxable income or loss;
(iii) If the Gross Asset Value of any Partnership asset is
adjusted pursuant to this Agreement, the amount of such adjustment shall be
taken into account in the taxable year as gain or loss from the disposition of
such asset for purposes of computing Profits or Losses;
(iv) Gain or loss resulting from any disposition of Partnership
Property with respect to which gain or loss is recognized for federal income tax
purposes shall be computed by reference to the Gross Asset Value of the
Partnership Property disposed of, notwithstanding that the adjusted tax basis of
such Property differs from its Gross Asset Value; and
(v) In lieu of the depreciation, amortization and other cost
recovery deductions taken into account in computing such taxable income or loss,
there shall be taken into account Depreciation for such fiscal year or other
period, computed in accordance with this Agreement.
"Purchase Price" has the meaning set forth in Section 9.4 of this
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Agreement.
"Regulations" means the regulations promulgated under the Code, as the same
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may be amended or supplemented from time to time.
"Regulatory Allocations" has the meaning set forth in Section 1(h) of
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Exhibit B of this Agreement.
"Removal Event" has the meaning set forth in Section 9.2 of this Agreement.
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"Service" has the meaning set forth in Section 11.6 of this Agreement.
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"Term" has the meaning set forth in Article IV of this Agreement.
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"Transfer," with respect to any Interest in the Partnership, means any
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sale, bequest, assignment, pledge, encumbrance or gift thereof, or attempt to
deliver a security interest therein, but shall not include a voluntary pledge or
assignment pursuant to a written agreement by a Partner of only the rights to
recover proceeds as distributed by the Partnership with respect to any Interest
nor shall include a collateral assignment of one Partner's Interest to another
Partner.
"Unreturned Capital Balance" with respect to any Partner means all cash
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paid toward such Partner's Capital Contribution, reduced by distributions made
to such Partner.
"Valuation Date" has the meaning set forth in Section 9.5(a) of this
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Agreement.
ARTICLE II. ORGANIZATION
2.1 Name. The name of the Partnership is "OKLAHOMA HILLS GAS, L.P."
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2.2 Place of Business. The principal place of business of the
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Partnership shall be at such place as determined by the General Partner. The
Partnership may establish additional places of business within or without the
State of Delaware as and when required by the business of the Partnership.
2.3 Registered Office. The registered office for the Partnership shall
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be located at such place as may be designated by the General Partner.
ARTICLE III. PURPOSE.
3.1 Purpose. The purpose for which the Partnership is formed is to
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purchase leasehold interests in certain oil and gas prospects located in the
Potato Hills Deep Gas Exploration located in Oklahoma. In addition, the
Partnership may engage in any lawful activity for which limited partnerships may
be organized under the laws of the State of Delaware and otherwise in accordance
with the terms of this Agreement.
3.2 Powers of Partnership. The Partnership shall have all the powers
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permitted by law which are necessary or desirable in carrying out the purposes
and business of the Partnership, including, but not limited to, the following:
(a) Transact business in any state or nation in which the
Partnership may lawfully act, for itself or as principal, agent or
representative for any Person, respecting the business of the Partnership;
(b) Enter into, make, perform and carry out, or cancel and
rescind, contracts and other obligations for any lawful purpose pertaining to
the business of the Partnership;
(c) Apply for, register, obtain, purchase or otherwise acquire
trademarks, trade names, labels and designs relating to or useful in connection
with any business of the Partnership, and to use, exercise, develop and license
the use of the same;
(d) Employ on behalf of the Partnership legal counsel, accountants
and other professional advisors with respect to any business of the Partnership;
(e) Compromise, submit to arbitration, sue on, and defend claims
in favor of or against the Partnership; and
(f) Exercise all of the general rights, privileges and powers
permitted by the provisions of the Act, as adopted or hereafter amended or
supplemented.
ARTICLE IV. TERM
The Partnership shall continue in perpetuity from the date hereof unless
dissolved sooner pursuant to Article X of this Agreement (the "Term").
ARTICLE V. CONTRIBUTIONS TO CAPITAL AND STATUS OF PARTNERS
5.1 Capital Contributions and Loan Amounts.
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(a) General Partner. The General Partner has made a capital
contribution to the Partnership in the amount set forth on Exhibit A to this
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Agreement.
(b) Limited Partners. Each Limited Partner shall make an initial
Capital Contribution, as described in Exhibit A to this Agreement. The name,
mailing address, taxpayer identification number, Capital Contribution,
Percentage Interest of each Partner is set forth in Exhibit A.
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(c) Additional Capital Contributions.
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(i) The Partners shall be obligated to make all additional
contributions to the capital of the Partnership, for whatever purpose, in any
amounts requested by the General Partner, provided that, solely with respect to
any Capital Calls made for the purpose of paying administrative expenses of the
Partnership, the General Partner shall only be permitted to request two
additional contributions to the capital of the Partnership per calendar year in
the aggregate amount of $300,000. The General Partner shall deliver written
notice requesting any additional Capital Contribution to the Partnership (a
"Capital Call") to each Limited Partner. Each Limited Partner shall be
obligated to satisfy its pro rata portion of any Capital Call within fifteen
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(15) business days of receiving such written request.
(d) Withdrawal of Capital Contributions. No Partner shall have the
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right to withdraw or reduce its Capital Contribution, or to receive any
distributions from the Partnership, except as otherwise provided herein. No
Partner shall have the right to demand or receive any Partnership Property other
than cash from the Partnership. No interest or royalties shall be paid to any
Partner on its Capital Contribution. No Partner shall have priority over any
other Partner, either as to the return of its Capital Contribution or as to
Profits, Losses or distributions, except as may be specifically set forth in
this Agreement.
5.2 Additional Limited Partners. Additional Limited Partners may be
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admitted to the Partnership with the consent of the General Partner and without
the consent of the Limited Partners. Any dilution of the Percentage Interest
resulting from the admission of additional Limited Partners shall be borne by
all Partners pro rata in accordance with their Percentage Interests.
ARTICLE VI. DISTRIBUTIONS; ALLOCATION OF PROFITS AND LOSSES;
CAPITAL ACCOUNTS.
6.1 Cash Available for Distribution.
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(a) Distributions Prior to Liquidation. Cash Available for
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Distribution, if any, shall be distributed at times and in amounts which the
General Partner may, in its reasonable discretion, determine. Amounts not
distributed in liquidation of the Partnership shall be distributed as follows:
(i) First, 99 percent to the Limited Partners in proportion to
and to the extent of their Unreturned Capital Balances and one
percent to the General Partner until all Unreturned Capital
Balances have been reduced to zero;
(ii) Then, 84 percent to Limited Partner A, 15 percent to Limited
Partner B and 1 percent to the General Partner.
Notwithstanding the foregoing, the General Partner may in its sole and absolute
discretion and at any time make a distribution to the Limited Partners in
proportion to their respective Unreturned Capital Account balances.
(b) Liquidating Distributions. Distributions in liquidation of the
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Partnership and redemption of Interests shall be made in accordance with Capital
Accounts, determined after taking into account all allocations under this
Article VI, including Profits or Losses with respect to property distributed in
kind.
6.2 Allocation of Profits and Losses.
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(a) Allocation of Profits. After giving effect to the Regulatory
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Allocations set forth in Exhibit B of this Agreement, Profits for any fiscal
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year or other
period of the Partnership will be credited to the Capital Accounts of the
Partners in the following order of priority:
(i) First, to each Partner in proportion to and to the extent of
the excess, if any, of (A) cumulative prior allocations of Losses
to the Partner under subsection (b) of this Section 6.2 over (B)
cumulative prior allocations to the Partner under this clause
(i);
(ii) Then, to each Partner in proportion to and to the extent of
the excess, if any, of (A) cumulative distributions to the
Partner under Section 6.1(a) as of the date of allocation over
(B) cumulative prior allocations under this clause (ii);
(iii) Then, 84 percent to Limited Partner A and 15 percent to
Limited Partner B and 1 percent to the General Partner.
(b) Allocation of Losses. After giving effect to the Regulatory
Allocations set forth in Exhibit B of this Agreement, Losses for any fiscal year
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or other period will be allocated as follows:
(i) First, to each Partner in proportion to and to the extent of
the excess, if any, of (A) cumulative Profits allocated to the
Partner for all prior years under subsection (a) of this Section
6.2 over (B) cumulative prior Losses allocated during the same
period under this clause
(ii) Then, to Partners, if any, with positive Capital Account
balances, in proportion to and to the extent of such balances;
(iii) Then entirely to the General Partner.
Notwithstanding the foregoing, the Losses allocated pursuant to this Section
6.2(b) shall not exceed the maximum amount of Losses that can be so allocated
without causing any Partner to have an Adjusted Capital Account Deficit at the
end of the fiscal year. In the event some but not all of the Partners would have
Adjusted Capital Account Deficits as a consequence of an allocation of Losses
pursuant to Section 6.2(b), this limitation shall be applied on a Partner by
Partner basis so as to allocate the maximum permissible Losses to each Partner
Section 1.704-1 (b)(2)(ii)(d) of the Regulations, and otherwise shall be
allocated entirely to the General Partner.
6.3 Special Tax Allocations; Other Allocation Rules; Tax Allocations:
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Code Section 704(c). Special tax allocations, other allocation rules and tax
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allocations relating to Code Section 704(c) are as set forth on Exhibit B
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attached hereto and made a part hereof.
6.4 Allocations in the Event of Transfer.
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(a) If all or any portion of an Interest is transferred in
accordance with Article VIII hereof (other than a hypothecation or any other
encumbrance which secures
an indebtedness but is not accompanied by immediate rights to distributions),
Profits, Losses, each item thereof and all other items attributable to such
Interest for the period from the beginning of the year in which the transfer is
effected through the date of transfer shall be allocated to the transferor, and
all items attributable for the balance of the year shall be allocated to the
transferee. The General Partner may, in its sole discretion, determine the
apportionment between pre- and post-transfer allocations on the basis of the
number of days of the year in each period or by an interim closing of books as
of the end of the date of transfer, except that any items attributable to a
transaction giving rise to capital gain or loss (including gain on the
disposition of "Section 1231 property" within the meaning of Section 1231 of the
Cod) shall be allocated entirely to the period in which the transaction giving
rise to the gain or loss occurred. The Partnership shall not make any
adjustments for items of income, gain, loss, credit, or deduction realized or
incurred prior to transfer but deferred in whole or part to a subsequent period.
(b) Solely for purposes of allocating Profits, Losses and each
item thereof as set forth in Sections 6.2 through 6.4, the Partnership shall
recognize the Transfer of such Interest not later than the end of the calendar
month during which it receives written notice of such Transfer and the other
requirements of Article VIII hereof are satisfied, provided that if the
Partnership does not receive a written notice stating the date such Interest was
transferred and such other information as the General Partner may reasonably
require within thirty (30) days after the end of the calendar year during which
the Transfer occurs, then all of such items shall be allocated, and all
distributions shall be made, to the Person who, according to the books and
records of the Partnership, on the last day of the accounting period during
which the Transfer occurs, was the owner of the Interest. The General Partner
and the Partnership shall incur no liability for making allocations and
distributions in accordance with the provisions of this Section 6.4, whether or
not the General Partner or the Partnership has knowledge of any Transfer of
ownership of any Interest.
6.5 Capital Accounts.
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(a) A Capital Account shall be maintained for each Partner. The
provisions of this Agreement relating to the maintenance of Capital Accounts are
intended to comply with the Regulations promulgated under Section 704(b) of the
Code. The Capital Account of each Partner shall be increased by (a) the cash
amounts of such Partner's Capital Contribution, (b) the Gross Asset Value of any
property or services contributed to the Partnership by the Partner as agreed to
by the contributing Partner and the Partnership, less any indebtedness to which
such property is subject or which is assumed by the Partnership in connection
with the contribution (except that any amount by which such indebtedness exceeds
such Gross Asset Value of the property shall be treated as a debit to the
Partner's Capital Account), and (c) such Partner's share of Profits and any
items in the nature of income and gain specially allocated to it, and shall be
decreased by (y) the amount of cash and the Gross Asset Value of other property
actually distributed to such Partner by the Partnership less any indebtedness to
which such property is subject or which is assumed by the Partner in connection
with the distribution (except that any amount by which such indebtedness exceeds
such Gross Asset Value of the property shall be treated as a credit to the
Partner's Capital Account), and (z) such Partner's share of Losses.
(b) In the event a Partner Transfers all or any portion of its
Interest in accordance with the provisions of this Agreement, the transferee
shall succeed to the individual Capital Account of the transferor to the extent
such Capital Account relates to the transferred Interest.
(c) It is the intent of this Agreement that each Partner's
allocations and distributions shall be made in accordance with Section 704(b) of
the Code. If the Partnership is advised by legal counsel that any matter or
matters contained in this Agreement are unlikely to be effective for federal
income tax purposes, the General Partner is hereby granted the power to amend
the allocation and/or distribution provisions of this Agreement, on the advice
of legal counsel to the Partnership, to the minimum extent necessary to effect
the allocation of Profits and Losses herein.
(d) No Partner shall be required at any time to make any cash
contribution to the Partnership by reason of any deficit balance in its Capital
Account, and no such deficit balance shall increase or otherwise affect the
liability of a Partner to third parties
6.6 Tax Distributions. Prior to any distributions pursuant to Section
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6.1 hereof (or otherwise), the Partnership shall distribute Cash Available for
Distribution to the Partners in such amounts as the General Partner, in good
faith, estimates (the "Estimated Tax Liability") to be sufficient to permit each
Partner to pay all federal and state income taxes which each Partner will incur
as a result of the required inclusion of each Partner's proportionate share of
the Profits of the Partnership in determining each Partner's federal and state
tax liability, provided that such distribution shall be made no later than the
10th day of January of the year following the year in question and such amount
shall be confirmed by the General Partner as soon thereafter as is reasonably
practicable. Any distribution made under this Section 6.6 shall be applied
against such amounts such Partner is entitled to receive pursuant to Section 6.1
hereof. In the event such Partner receives an amount pursuant to this Section
6.6 which the General Partner in good faith determines is (i) less than the
Estimated Tax Liability, then the Partnership shall promptly distribute any
shortfall, or (ii) greater than the amount such Partner was entitled to receive
pursuant to Section 6.1 hereof, such Partner shall immediately return to the
Partnership the difference between the amount received and the amount which
should have been distributed.
ARTICLE VII. MANAGEMENT; RIGHTS, POWERS, AND OBLIGATIONS OF
THE PARTNERS
7.1 Management of the Partnership. Subject to Section 7.2 hereof, the
--------------------------------
management and control of the Partnership and its business and affairs, and the
exercise of the powers of the Partnership described in Section 3.2 hereof, shall
be vested in the General Partner.
7.2 Certain Limitations of the General Partner. Without obtaining the
-----------------------------------------------
affirmative vote of a Majority in Interest of the Limited Partners, voting as a
separate class, the General Partner shall not do or permit any of the following
acts on behalf of the Partnership unless otherwise specifically stated herein:
(i) Act in contravention of this Agreement;
(ii) Except as provided in Article X, do any act which would
make it impossible to carry on the ordinary business of the Partnership;
(iii) Confess a judgment against the Partnership;
(iv) Execute or deliver any assignment for the benefit of the
creditors of the Partnership;
(v) Impose a lien, lease, security interest, easement,
liability or otherwise encumber Partnership Property, other than the Senior
Security Interest and the Class A Security Interest; or
(vi) sell or dispose of all or substantially all of the
assets of the Partnership Property in a transaction outside of the Partnership's
ordinary course of business.
7.3 Meetings of the Partners.
---------------------------
(a) Meetings of Partners. Except as otherwise specifically
----------------------
provided in this Agreement, special meetings of the Partners may be called by
the General Partner, by written notice to the Partners given not less than ten
(10) nor more than sixty (60) days prior to the date of such meeting. Meetings
shall be held at such place within or without the State of Delaware as is
designated in the notice of the meeting.
(b) Quorum. Except as provided in other sections of this Agreement
------
where less than all of the Partners are entitled to vote, the Partners necessary
to approve any action to be taken at such meeting must be present for the
conduct of business at any meeting of the Partners.
(c) Written Consent. Any action of the Partners may be taken
----------------
without a meeting if the Partners required to approve such action consent
thereto in writing.
(d) Meeting by Telephone. The meeting of the Partners may be held
----------------------
by telephone conference or similar communications equipment.
(e) Proxies. A Partner may authorize one or more Persons to act
-------
for such Partner by proxy, provided the proxy is signed by such Partner. A proxy
shall not be valid after the expiration of one (1) year from its date.
(f) Waiver of Notice. Any notice required under this Agreement for
------------------
the holding of meetings of the Partners may be waived by any Partner by an
instrument in writing signed by such Partner either before or after the meeting
to which such waiver relates.
7.4 Voting by the Partners. Unless otherwise stated in this Agreement,
-------------------------
an affirmative vote of a Majority in Interest of the Limited Partners, voting as
a class, shall be required to adopt any matter subject to a vote of the Limited
Partners.
7.5 Independent Activities. Subject to any other agreement among the
-----------------------
parties, Partners and Affiliates of Partners may, notwithstanding the existence
of this Agreement, engage in whatever activities they choose without having or
incurring any obligation to offer any interest in such activities to the
Partnership or any Partner, and neither this Agreement nor any activity
undertaken pursuant hereto shall prevent the Partners or any Affiliate of a
Partner from engaging in any activity, or require the Partners or any Affiliate
of a Partner to permit the Partnership or any Partner to participate therein.
7.6 Execution of Agreements and Instruments. Any agreement or
-------------------------------------------
instrument may be executed on behalf of the Partnership by the General Partner
or as otherwise authorized by the General Partner.
7.7 Holding of Assets. All Partnership Property, whether real, personal
-------------------
or mixed, owned by the Partnership shall be held in the name of the Partnership.
7.8 Prior Expenses. To the extent expenses have been incurred in
---------------
connection with the Partnership prior to the date of this Agreement, the
Partnership shall pay such expenses or shall reimburse the General Partner or
any other Person as appropriate for such expenses if already paid.
ARTICLE VIII. TRANSFER OF INTERESTS IN THE PARTNERSHIP
8.1 Prohibited Transfers. Neither the General Partner nor any of the
---------------------
Limited Partners may sell, assign, transfer or otherwise dispose of, or pledge,
hypothecate or transfer or in any manner encumber, his or its Partnership
Interest or any part thereof except as permitted in this Article VIII, and any
act in violation of this Article VIII shall not be binding upon or recognized b,
the Partnership regardless of whether the General Partner shall have knowledge
thereof
8.2 General Partner.
----------------
(a) Upon the withdrawal, retirement, resignation, removal, death,
insanity, dissolution or bankruptcy of a General Partner (the "Terminating
General Partner") and the continuation of the business of the Partnership by the
remaining General Partner[] (or if there is no remaining General Partner, a
newly appointed General Partner, appointed upon the consent of a Majority in
Interest of the Limited Partners), the Partnership Interest of such Terminating
General Partner shall be converted to a Limited Partnership Interest; provided,
however, that the distributions, Profits and Losses to which the Terminating
General Partner shall be entitled shall not be changed from those to which the
Terminating General Partner was entitled while a General Partner.
(b) Until the dissolution and liquidation of the Partnership, no
General Partner shall voluntarily withdraw, retire or resign from the
Partnership without the consent of the then remaining General Partners, or if
there is no other General Partner, of a Majority in Interest of the Limited
Partners. Although such withdrawal, retirement or
resignation in breach of this Subsection 8.2(b) may not be enjoined, such
General Partner shall be liable in damages to the Partnership for such breach. A
sole remaining General Partner seeking to withdraw, may do so only upon
obtaining the prior written approval of a Majority-in-Interest of the Limited
Partners.
8.3 Limited Partners.
-----------------
(a) The General Partner may (1) pursuant to this Section 8.3,
admit as a substituted Limited Partner any successor in interest to a Limited
Partner either deceased or under legal disability, and (2) pursuant to this
Section 8.3 admit as substituted Limited Partners assignees of Limited Partners:
(i) A substituted Limited Partner is a person admitted to all
the rights of a Limited Partner;
(ii) An assignee is a person to whom a Limited Partner has
assigned his Interest in the Partnership but who has not become a substituted
Limited Partner. An assignee shall have no right to require any information or
accounting of the Partnership's transactions or to inspect the Partnership's
books but shall only be entitled to receive the share of the distributions and
allocations to which his assignor would otherwise be entitled as set forth in
Article VI.
(b) No assignee of the whole or any portion of a Limited Partner's
Interest shall have the right to become a substituted Limited Partner in place
of his assignor or have any other rights of a Limited Partner hereunder unless
all of the following conditions are satisfied:
(i) The written consent of the General Partner to such
substitution shall be obtained, the granting or denial of which shall be within
the sole and absolute discretion of the General Partner;
(ii) A duly executed and acknowledged written instrument of
assignment has been filed with the Partnership which sets forth the intention of
the assignor that the assignee become a substituted Limited Partner in his
place;
(iii) The assignor and assignee execute and acknowledge such
other instruments as the General Partner may deem necessary or desirable to
effect such admission, including, without limitation, an opinion of counsel,
acceptable to the General Partner, to the effect that the assignment of the
interest will not violate the applicable provision of the Securities Act of 1933
and any applicable state securities laws, the written acceptance and adoption by
the assignee of the provisions of this Agreement and his execution,
acknowledgment, and delivery to the General Partner of a Power of Attorney, the
form and content of which are more fully described in Paragraph 12 hereof; and
(iv) A transfer fee not to exceed $300.00 per transaction has
been paid to the Partnership.
(c) Any person admitted to the Partnership as a Substituted
Limited Partner shall be subject to all of the provisions of this Agreement as
if originally a party to it.
(d) Subject to the provisions of subparagraph 8.3(j) hereof,
compliance with the suitability standards imposed by the Partnership, applicable
"blue sky" laws, if any, and the rules of any other applicable governmental
authority and subject to the written consent of the General Partner (except that
assignments to heirs and personal representatives may be made without consent
upon the death of a Limited Partner), a Limited Partner shall have the right to
assign all or a portion of his Interest by a written assignment, the terms of
which are not in contravention of any of the provisions of this Agreement, which
assignment has been duly executed by the assignor and received by the
Partnership and recorded on the books thereof Any assignment in contravention of
any of the provisions of this Subsection 8.3(d) shall be of no force and effect
and shall not be binding upon or recognized by the Partnership. THE INTERESTS
EVIDENCED BY THIS AGREEMENT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE. THE INTERESTS ACQUIRED BY
LIMITED PARTNERS MAY NOT BE SOLD OR OFFERED FOR SALE IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT FOR THE INTERESTS UNDER THE SECURITIES ACT OF
1933, AS AMENDED, AND SUCH STATE LAWS AS MAY BE APPLICABLE, OR AN OPINION OF
COUNSEL SATISFACTORY TO THE PARTNERSHIP THAT SUCH REGISTRATION IS NOT REQUIRED.
(i) Except as provided in Subsections 8.3(h), 8.3(i) and
8.3(j), an assignee of an Interest shall be entitled to receive distributions of
cash or other property from the Partnership attributable to the Interest
acquired by reasons of such assignment from and after the effective date of the
assignment of an Interest to him. The "effective date" of an assignment of an
Interest shall be the last day of the calendar month in which the written
instrument of assignment, in form and substance satisfactory to the General
Partner, is received and approved by the General Partner.
(ii) Anything contained herein to the contrary
notwithstanding, both the Partnership and the General Partner shall be entitled
to treat the assignor of a Partnership Interest as the absolute owner thereof in
all respects, and shall incur no liability for distributions of cash or other
property made in good faith to him until such times as the written assignment
has been received by, and recorded on the books of the Partnership, in
accordance with the provisions of Subsection 8.3(d)(i).
(e) The General Partner may elect to treat an assignee who has not
become a substituted Limited Partner as a substituted Limited Partner in the
place of his assignor, should it deem, in its sole and absolute discretion, that
such treatment be in the best interest of the Partnership for any of its
purposes or for any of the purposes of this Agreement.
(f) No consent of any of the Limited Partners is required to elect
the substitution of a Limited Partner, except that a Limited Partner who assigns
his Interest shall, in order for the assignee to be admitted as a substituted
Limited Partner, evidence his intention that the assignee be admitted as a
substituted Limited Partner in his place
and must execute such instruments as the General Partner shall, in its sole and
absolute discretion, determine to be necessary or desirable in connection
therewith.
(g) The General Partner shall be required to amend this Agreement
only quarterly but may, in its sole and absolute discretion, within a reasonable
time after the date of their written consent to the substitution of an assignee
as a substituted Limited Partner, amend this Agreement to reflect the addition
of said assignee as a Limited Partner. Neither copies of this Agreement nor any
amendment thereto need be delivered to any of the Limited Partners and such
requirement in any statute is hereby waived. However, upon request, the General
Partner will promptly thereafter furnish the requesting Limited Partner with a
copy of this Agreement and any amendments thereto as of the date of request.
(h) Upon the death or legal incompetency of an individual Limited
Partner, his personal representative shall have all of the rights of a Limited
Partner for the purpose of settling or the managing his estate, and such power
as the decedent or incompetent possessed to constitute a successor as an
assignee of his Interest in the Partnership and to join with such assignee in
making application to substitute such assignee as a Limited Partner. However,
such personal representative shall not have the right to become a substituted
Limited Partner in the place of his predecessor in interest unless the
conditions of this Article VIII are first satisfied (except with respect to the
requirement that the assignor execute and acknowledge instruments).
(i) Upon the bankruptcy, dissolution or other cessation to exist as a
legal entity of a General or Limited Partner, not an individual, the authorized
representative of such entity shall have all of the rights of a Limited Partner
for the purpose of effecting the orderly winding up and the disposition of the
business of such entity and such power as such entity possessed to constitute a
successor as an assignee of its interest in the Partnership and to join with
such assignee in making application to substitute such assignee as a Limited
Partner. However, such personal representative shall not have the right to
become a substituted Limited Partner in the place of his predecessor in interest
unless the conditions of this paragraph are first satisfied (except with respect
to the requirement that the assignor execute and acknowledge instruments).
(j) No assignment or transfer of an interest in the Partnership may
be made which would result in the termination of the Partnership under Section
708 of the Code.
ARTICLE IX. WITHDRAWAL AND REMOVAL OF A PARTNER
9.1 Withdrawal. No Partner may withdraw or resign voluntarily from the
----------
Partnership.
9.2 Removal of a Limited Partner. Upon the occurrence of any of the
--------------------------------
following events (each, a "Removal Event"), the Partnership shall have the
option (but not the obligation) to remove a Limited Partner. A Limited Partner
may only be removed pursuant to this Section 9.2 in the event of:
(a) The dissolution, termination, or Bankruptcy of the Limited
Partner;
(b) Any assignment or attempted assignment of the Interest of a
Limited Partner or attempted withdrawal of the Limited Partner contrary to this
Agreement; or
(c) The material breach of this Agreement by the Limited Partner
that is not cured (if such material breach is capable of being cured) within
thirty (30) days of the receipt of notice form the General Partner of the
occurrence of such material breach.
9.3 Death or Disability of a Limited Partner. In the event of the death
-------------------------------------------
or disability of an individual Limited Partner, the Partnership shall have the
assignable option (but not the obligation) to acquire all or any portion of such
Limited Partner's Interest by notifying the Limited Partner, the Limited
Partner's estate or the Limited Partner's representative, as the case may be,
within ninety (90) days of the date of death or determination of disability of
such Limited Partner of the Partnership's intention to acquire the Interest of
such Limited Partner in the Partnership. The price and terms of purchase
pursuant to which the Partnership shall be entitled to exercise the option
granted in this Section 9.3 shall be those set forth in Section 9.4 hereof
9.4 Effect of Removal. If the Partnership exercises the options
-------------------
described in Sections 9.2 or 9.3, then the Partnership shall redeem the removed
Partner's Interest for the purchase price (the "Purchase Price") determined
under Section 9.5 to be paid on the terms described in Section 9.6.
9.5 Valuation of the Interest of a Partner. For purposes of this
--------------------------------------------
Article IX, the Purchase Price for a removed, deceased or Disabled Limited
Partner's Interest shall be the value of such Limited Partner's Interest
determined as follows:
(a) The General Partner shall select an independent, third-party
appraiser, experienced in appraising limited partnership interests similar to
the Interests (the "Appraiser"). The Appraiser will determine the value of the
Limited Partner's Interest as of the end of the calendar month immediately
preceding the Removal Event based upon the value of the Partnership's assets net
of liabilities assuming all assets were sold at such value and all liabilities
were satisfied by cash payments at their present value and any resulting deemed
Profit or Loss was allocated to the Partners pursuant to the terms of this
Agreement. The determination of the value of a Limited Partner's Interest shall
assume the going concern of the Partnership and shall not take into account
minority discounts for the Capital Account being valued. The date on which the
Interest is to be valued pursuant to this Section shall be referred to herein as
a "Valuation Date." The Appraiser shall within sixty (60) days of the Removal
Event prepare a statement and report of the amount of the Limited Partner's
Interest as of the Valuation Date. A copy of such statement and report will be
forwarded to each Partner.
(b) The Partnership's name and goodwill shall, as among the
Partners, be deemed to have no value and shall belong to the Partnership, and no
Partner shall have any right or claim individually to the use thereof
9.6 Payments to a Removed Limited Partner. The Purchase Price, as
------------------------------------------
determined under Section 9.5, shall be paid to the removed, deceased or disabled
Limited Partner, or its successor in interest as follows:
(a) Ten percent (10%) in cash or immediately available funds by
the ninetieth (90th) day following the date of the Removal Event, death or
disability (the "Closing Date"), and
(b) The balance of principal together with interest on the unpaid
principal balance at a rate of interest equal to the Prime Rate in effect on the
business day prior to the Closing Date in twelve (12) equal installments,
payable each March 31, June 30, September 30 and December 31, commencing on the
first March 31, June 30, September 30 or December 31 following the Closing Date;
provided, however, that (i) the Partnership may, at any time and from time to
time at its sole option and election, without penalty or premium, repay the
balance, in whole or in part, and (ii) the balance shall become immediately due
and payable (A) if any installment of the balance shall not have been paid when
due and the Partnership shall have failed to cure such default within ten (10)
days after the Partnership's receipt of a written notice of such default or (B)
if the Partnership is dissolved.
ARTICLE X. DISSOLUTION AND WINDING UP OF THE PARTNERSHIP
10.1 Dissolution of the Partnership. The Partnership shall be dissolved
---------------------------------
upon the first to occur of any of the following events:
(a) An order by a court of competent jurisdiction decrees that the
Partnership be dissolved;
(b) The determination of the General Partners and a Majority in
Interest of the Limited Partners to dissolve; or
(c) The sale or other disposition of all or substantially all of
the assets of the Partnership.
The occurrence of any Removal Event of any Limited Partner shall not cause
the dissolution of the Partnership.
10.2 Winding Up of the Partnership. Upon a dissolution of the
---------------------------------
Partnership, the General Partner or other Person appointed by the General
Partner, shall take full account of the Partnership's assets and liabilities and
the assets shall be liquidated as promptly as is consistent with obtaining the
fair value thereof and as shall be necessary to timely make the distributions
below described, and the proceeds therefrom, to the extent sufficient therefor,
shall be applied and distributed in the following order:
(a) First, to the payment and discharge of all of the
Partnership's debts and liabilities other than liabilities owing to the
Partners, including establishment of any necessary contingency reserves;
(b) Then, to the payment of any liabilities owing to the Partners;
(c) Then, to the Partners in accordance with Unreturned Capital
Balances.
(d) Then, after taking into account all distributions and
allocations of Profits and Losses provided for in this Agreement, to the
Partners in accordance with positive Capital Account Balances.
10.3 Distribution In Kind. Any Partnership Property distributed in kind
----------------------
in the liquidation shall be valued and treated pursuant to Section 9.5. The
difference between the value of any item of Partnership Property distributed in
kind and its book value shall be treated as a gain or loss on the disposition of
Partnership Property and shall be allocated among the Partners as provided in
Article VI.
ARTICLE XI. BOOKS OF ACCOUNTS, ACCOUNTING, REPORTS, FISCAL
YEAR, BANKING AND TAX MATTERS PARTNER
11.1 Accounting, Books and Records. The Partnership shall maintain at
--------------------------------
its principal place of business or such other places as the General Partner
shall determine books of account for the Partnership which shall show a true and
accurate record of all costs and expenses incurred, all charges made, all
credits made and received, and all income derived in connection with the conduct
of the Partnership and the operation of its business in accordance with
generally accepted accounting principles consistently applied and, to the extent
inconsistent therewith in accordance with this Agreement. The Partnership shall
use the accrual method of accounting in preparation of its annual reports and
for tax purposes and shall keep its books and records accordingly. Each Partner
or its designated representative shall have the right, during ordinary business
hours, to have access to, inspect and copy, at its sole expense, the contents of
such books or records.
11.2 Other Records.
--------------
(a) The Partnership shall maintain at its principal place of
business the following:
(i) A current list of the full names and last known business
address of each Partner;
(ii) A copy of the Certificate of Limited Partnership, all
amendments thereto, and executed copies of any powers of attorney pursuant to
which the same have been executed;
(iii) A copy of this Agreement, all amendments thereto, and
executed copies of any written powers of attorney pursuant to which the same
have been executed;
(iv) Copies of any federal, state, and local income tax
returns and reports of the Partnership for the three most recent years; and
(v) Copies of any financial statements of the Partnership for
the three most recent years.
(b) Except as otherwise set forth herein, each Partner shall have
the right, exercisable upon written demand, to examine the items described in
Section 11.2(a) during ordinary business hours and for any purpose reasonably
related to the Partner's Interest in the Partnership (which purpose must be
stated in the written demand), and shall have the right, at its own expense, to
make copies of all such items.
11.3 Reports.
--------
(a) The General Partner shall be responsible for the preparation
of financial reports of the Partnership and the coordination of financial
matters of the Partnership with the Accountant.
(b) Within 90 days after the end of each fiscal year, the General
Partner shall transmit to each Partner financial statements based upon the
annual audit of the books and financial records of the Partnership, prepared in
accordance with generally accepted accounting principles, and, to the extent
inconsistent therewith, in accordance with this Agreement, including the
following:
(i) A copy of the balance sheet of the Partnership as of the
last day of such fiscal year;
(ii) A statement of income or loss for the Partnership for
such fiscal year;
(iii) A statement of the Partners' Capital Accounts and
changes therein for such fiscal year; and
(iv) A statement of Partnership cash flow for such fiscal
year.
(c) Within ninety (90) days after the end of each fiscal year, the
General Partner shall transmit to each Partner a report indicating such
Partner's share of all items of income or gain, expense, loss or other deduction
and tax credit of the Partnership for such fiscal year, and such additional
information to enable the Partners to complete their respective tax returns.
(d) The General Partner shall transmit to the Limited Partners
such other reports and information as the Limited Partners may reasonably
request.
11.4 Fiscal Year. The fiscal year of Partnership shall be the calendar
------------
year.
11.5 Partnership Funds. All funds of the Partnership shall be deposited
------------------
in its name in a separate bank account or accounts or in an account or accounts
of a savings and loan association or brokerage firm as shall be determined by
the General Partner.
11.6 Tax Matters Partner. The General Partner shall serve as the
---------------------
Partnership's "tax matters partner" (as such term is defined in the Code). In
such capacity, the Tax Matters Partner is hereby authorized and empowered to act
for and represent the Partnership and each of the Partners before (i) the
Internal Revenue Service ("Service") in any audit or examination of any
Partnership tax return, and (ii) any court selected by the
Partners for judicial review of any adjustment assessed by the Service. The
Partners specifically acknowledge, without limiting the general applicability of
this Section, that the Tax Matters Partner shall not be liable, responsible or
accountable in damages or otherwise to the Partnership or any Partner with
respect to any action taken by him in his capacity as the Tax Matters Partner,
provided he used reasonable business judgment with respect to the action taken.
All out-of-pocket expenses incurred by the Tax Matters Partner in his capacity
as the Tax Matters Partner shall be considered expenses of the Partnership for
which the Tax Matters Partner shall be entitled to full reimbursement.
ARTICLE XII. INDEMNIFICATION
12.1 Indemnification.
---------------
(a) General Provisions. Except as otherwise set forth herein, the
-------------------
Partner and their members, partners, Affiliates, directors, officers, agents and
employees (herein referred to as an "Indemnitee"), shall be indemnified, held
harmless and defended by the Partnership (out of Partnership assets, including
the proceeds of liability insurance) against any claim, demand, controversy,
dispute, cost, loss, damage, expense (including reasonable attorneys' fees),
judgment and/or liability incurred by or imposed upon the Indemnitee in
connection with any action, suit or proceeding (including any proceeding before
any administrative or legislative body or agency) to which the Indemnitee may be
a party or otherwise involved, or with which the Indemnitee may be threatened,
by reason of any action or omission of the Indemnitee (or the Indemnitee's
employee) in connection with the conduct of Partnership affairs. Such
indemnification extends to the Indemnitee in its capacity, at the time the cause
of action arose or thereafter, as general partner, member of any committee or as
a member, Affiliate, director, officer, partner, employee or other agent of any
other organization in which the Partnership owns an interest or of which the
Partnership is a creditor, which other organization the Indemnitee (or its
employee) serves in such capacity at the request of the Partnership (whether or
not the Indemnitee or its employee continues to serve in such capacity at the
time such action, suit or proceeding is brought or threatened). The
indemnification set forth herein shall not extend with respect to actions or
omissions of the Indemnitee (or its employee) which shall have been finally
adjudicated (by settlement or otherwise) in any such action, suit or proceeding
to have constituted actual fraud, willful misconduct or gross negligence. In the
event of settlement of any action, suit or proceeding brought or threatened,
such indemnification shall apply to all matters covered by the settlement. The
foregoing right of indemnification shall be in addition to any rights to which
any Indemnitee may otherwise be entitled and shall inure to the benefit of the
executors, administrators, personal representatives, successors or assigns of
each such Indemnitee.
(b) Advance Payment of Expenses. The Partnership shall pay the
------------------------------
expenses incurred by an Indemnitee in defending a civil or criminal action, suit
or proceeding, or in opposing any claim arising in connection with any potential
or threatened civil or criminal action, suit or proceeding, in advance of the
final disposition of such action, suit or proceeding, upon receipt of an
undertaking by such Indemnitee to repay such payment if he shall be determined
to be not entitled to indemnification therefore as provided herein; provided,
however, that in such instance the Indemnitee is not commencing an action, suit,
or proceeding against the Partnership, or defending an
action, suit or proceeding commenced against him by the Partnership or any
Partner thereof or opposing a claim by the Partnership or any Partner thereof
arising in connection with any such potential or threatened action, suit or
proceeding.
(c) Insurance. The Partnership may purchase and maintain insurance
----------
with such limits or coverages as the General Partner reasonably deems
appropriate, at the expense of the Partnership and to the extent available, for
the protection of any Indemnitee against any liability incurred by such
Indemnitee in any such capacity or arising out of his status as such, whether or
not the Partnership has the power to indemnify such Indemnitee against such
liability. The Partnership may purchase and maintain insurance for the
protection of any officer, director, employee, consultant or other agent of any
other organization in which the Partnership owns an interest or of which the
Partnership is a creditor against similar liabilities, whether or not the
Partnership has the power to indemnify him or it against such liabilities. Any
amounts payable by the Partnership to an Indemnitee pursuant to the provisions
of Section 12.1(a) above shall be payable first from the proceeds of any
insurance recovery pursuant to policies purchased by the Partnership and then
from the other assets of the Partnership; provided, that the foregoing shall not
affect the Partnership's obligation to advance expenses pursuant to Section
12.1(b) hereof in circumstances in which the insurance Partnership who has
issued such policy will not advance such expenses.
ARTICLE XIII. MISCELLANEOUS
13.1 Agreement for Further Execution. The Partners agree to sign, swear
----------------------------------
or acknowledge any certificates or filings required by the laws of the State of
Delaware or any other state, to sign, swear or acknowledge any amendment or
cancellation of such certificate or filings whether or not such amendment or
cancellation is required by law; to sign, swear or acknowledge such other
certificates, filings, documents or affidavits of assumed name, trade name or
the like (and any amendments or cancellations thereof that may be required for
conduct of the Partnership's business) and to cause the filing of any of the
same for record wherever such filing shall be required by law. This Section 13.1
shall not prejudice or affect the rights of the Partners to approve certain
amendments to this Agreement as herein provided.
13.2 Amendments.
----------
(a) Except as otherwise provided in this Agreement, no alteration,
modification or amendment of this Agreement shall be made unless in writing and
signed (in counterpart or otherwise) by the General Partner and a Majority in
Interest of the Limited Partners, except that no alteration, modification or
amendment of any Section hereof which would materially and adversely affect the
economic interests of one or more (but not all) of the Limited Partners may be
made (except as provided below) without the unanimous consent of all Limited
Partners so adversely affected. Notwithstanding the foregoing, no increase in
the amount required to be contributed to the Partnership by the Partners, other
than as required herein or under applicable law, may be made without the consent
of all the Partners.
(b) Any provision to the contrary contained herein
notwithstanding, the General Partner may, without the consent or approval of any
Partners, make such
amendments to this Agreement binding on the Partners, (i) to correct a
typographical error, cure any ambiguity, correct or supplement any provision
herein which may be inconsistent with any other provisions herein, (ii) to make
any other amendment if such amendment is not adverse to the interests of the
Limited Partners as a whole or as a class or if such amendment benefits the
Limited Partners as a whole or as a class; and (iii) to reflect the addition of
Limited Partners pursuant to Section 5.2; provided, however, that no amendment
shall be adopted pursuant to this Section 13.2(b) unless the adoption thereof
does not affect the status of the Partnership as a partnership for federal
income tax purposes.
13.3 Notices.
-------
(a) Any notice to be given under this Agreement shall be made in
writing and sent by express, registered or certified mail, return receipt
requested, postage prepaid, fax, or commercial delivery service, addressed as
set forth below:
(i) If to the General Partner or the Partnership:
1286 Homer Street, Fourth Floor
Vancouver, British Columbia
V6B 2Y5
Canada
(ii) If to any Partner, such notice shall be mailed to the
address of the Partner appearing on the records of the Partnership.
(b) Any Partner may change the address to which notice is to be
sent by giving notice of such change to the Partnership in conformity with this
Section 13.3.
(c) Any such notice shall be deemed to be delivered, given and
received for all purposes as of the date delivered if delivered by a commercial
delivery service or by confirmed fax, or as of the date on which the same was
deposited in a regularly maintained receptacle for the deposit of United States
mail, if sent by express, registered or certified mail.
13.4 Governing Law and Jurisdiction. This Agreement shall be governed
--------------------------------
by, and construed in accordance with, the laws of the State of Delaware as
interpreted by the courts of saidState, notwithstanding any rules regarding
choice of law to the contrary. The parties to this Agreement agree to the
exclusive jurisdiction of the courts of New Castle County, Delaware and the
Federal courts of the District of Delaware for resolution of controversies
arising out of or relating to this Agreement and any related instruments,
agreements or documents.
13.5 Binding Nature of Agreement. Except as otherwise provided, this
------------------------------
Agreement shall be binding upon and inure to the benefit of the Partners and
their personal representatives, successors and assigns.
13.6 Additional Partners. Each substitute, additional or successor
--------------------
Partner shall become a signatory hereof by signing such number of counterparts
of this Agreement and
such other instrument or instruments and in such manner, as the General Partner
shall determine. By so signing, each substitute, additional or successor
Partner, as the case may be, shall be deemed to have adopted and to have agreed
to be bound by all the provisions of this Agreement; provided, however, that no
such counterpart shall be binding until it shall have been signed by the
Partnership.
13.7 Validity. In the event that all or any portion of any provision of
---------
this Agreement shall be held to be invalid, the same shall not affect in any
respect whatsoever the validity of the remainder of this Agreement.
13.8 Entire Agreement. This Agreement and the agreements attached
-----------------
hereto as Exhibits constitute the entire understanding and agreement among the
parties hereto with respect to the subject matter hereof, and supersedes all
prior and contemporaneous agreements and understandings, inducements or
conditions, express or implied, oral or written, except as contained herein.
13.9 Indulgences, Etc. Neither the failure nor any delay on the part of
-----------------
any party hereto to exercise any right, remedy, power or privilege under this
Agreement shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege preclude any other or further
exercise of the same or any waiver of any right, remedy, power or privilege with
respect to any occurrence be construed as a waiver of such right, remedy, power
or privilege with respect to any other occurrence. No waiver shall be effective
unless it is in writing and signed by the party asserted to have granted such
waiver.
13.10 Execution in Counterparts. This Agreement may be executed in any
---------------------------
number of counterparts, each of which shall be deemed to be an original as
against any party whose signature appears thereon, and all of such shall
together constitute one and the same instrument.
13.11 Paragraph. The paragraph headings in this Agreement are for
---------
convenience only, form no part of this Agreement, and shall not affect its
interpretation.
13.12 Number of Days. In computing the number of days for the purpose
----------------
of this Agreement, all days shall be counted, including Saturdays, Sundays and
holidays; provided, however, that if the final day of any time period falls on a
Saturday, Sunday or holiday, then such final day shall be deemed to be the next
day which is not a Saturday, Sunday or holiday.
13.13 Interpretation. No provision of this Agreement is to be
--------------
interpreted for or against any party because that party or that party's legal
representative drafted such provision.
13.14 Corporate Authority. Any corporation or trust signing this
--------------------
Agreement represents and warrants that the execution, delivery and performance
of this Agreement by such corporation or trust has been duly authorized by all
necessary corporate or trustee action.
13.15 Third Party Beneficiaries. Notwithstanding anything herein to the
---------------------------
contrary, no provision of this Agreement is intended to benefit any party other
than the Partners hereto and their successors and assigns in the Partnership and
shall not be enforceable by any other party.
13.16 Appointment of Attorney-in-fact. Each Partner hereby irrevocably
---------------------------------
constitutes and appoints the General Partner its true and lawful
attorney-in-fact, with full power of substitution, and with the General Partner
having full power and authority in its name, place and stead to execute,
acknowledge, deliver, swear to, file and record with the appropriate public
offices such certificates, instruments and documents as may be necessary or
appropriate to carry out the provisions of this Agreement or effectuate any
action taken by or on behalf of the Partnership, including, but not limited to,
any amendments to this Agreement or the Certificate of Limited Partnership
approved by the Partners as provided herein. The appointment by the Partners of
the General Partner as attorney-in-fact shall be deemed to be a power coupled
with an interest, in recognition of the fact that each of the Partners under
this Agreement will be relying upon the power of the General Partner to act as
contemplated by this Agreement in any filing and other action by the General
Partner on behalf of the Partnership and, shall to the fullest extent permitted
by applicable law, survive the Bankruptcy, death or incompetency of any Partner
hereby giving such power.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the undersigned have set their hands and seals as of
the day and year first above written.
GENERAL PARTNER:
NANG, Incorporated
By: "HARRY BRISCOE"
-------------------------------
Harry Briscoe, President
LIMITED PARTNERS:
Limited Partner A
FAR GROUP, INC.
By: "HARRY BRISCOE"
------------------------------
Harry Briscoe, President
Limited Partner B
BWP GAS, LLC
HBA Gas, Inc.
Managing Member
By: "ERNEST A. BARTLETT
------------------------------
Ernest A. Bartlett
Managing Member
PARTNERS AS OF MARCH 6, 2003
- ---------------------- ------------ -----------
CAPITAL PERCENTAGE
CONTRIBUTION INTEREST
- ---------------------- ------------ -----------
LIMITED PARTNERS:
- ---------------------- ------------ -----------
Limited Partner A 98%
FAR Group, Inc.
1286 Homer Street, 4th
Floor
Vancouver, British
Columbia
V6B 2Y5
Canada
Limited Partner B 1%
BWPGas, LLC
Cranley Lodge
132 1/2 Fulham Road
London SW3 682
United Kingdom
- ---------------------- ------------ -----------
GENERAL PARTNER:
- ---------------------- ------------ -----------
NANG, Incporated 1.%
10203 Birchridge Drive
Humble, TX 77338
- ---------------------- ------------ -----------
EXHIBIT B
SPECIAL ALLOCATIONS
1. Special Tax Allocations.
-------------------------
(a) Qualified Income Offset. In the event any Partner unexpectedly
-----------------------
receives any adjustments, allocations, or distributions described in Regulations
Section 1.704-1 (b)(2)(ii)(d)(4),(5), or (6), items of Partnership income and
gain shall be specially allocated to each such Partner in an amount and manner
sufficient to eliminate, to the extent required by the Regulations, the Adjusted
Capital Account Deficit of such Partner as quickly as possible, provided that an
allocation pursuant to this Section 1(a) shall be made if and only to the extent
that such Partner would have an Adjusted Capital Account Deficit after all other
allocations provided for in Article VI hereof have been tentatively made as if
this Section 1(a) were not in the Agreement.
(b) Gross Income Allocation. In the event any Partner has a
-------------------------
deficit Capital Account at the end of any Partnership fiscal year that is in
excess of the sum of (i) the amount such Partner is obligated to restore, and
(ii) the amount such Partner is deemed to be obligated to restore pursuant to
the next to last sentences of Regulation Sections 1 .704-2(g)(l) and
1.704-2(i)(5), each such Partner shall be specially allocated items of
Partnership income and gain in the amount of such excess as quickly as possible,
provided that an allocation pursuant to this Section 1(b) shall be made if and
only to the extent that such Partner would have a deficit Capital Account in
excess of such sum after all other allocations provided for in this Article 6
have been tentatively made as if Section 1(a) hereof and this Section 1(b) were
not in the Agreement.
(c) Partnership Minimum Gain Chargeback. Except as otherwise
--------------------------------------
provided in Section 1.704-2(f) of the Regulations, notwithstanding any other
provision of Article VI hereof if there is a net decrease in Partnership Minimum
Gain during any fiscal year, each Partner shall be specially allocated items of
Partnership income and gain for such fiscal year (and, if necessary, subsequent
fiscal years) in an amount equal to such Partner's share of the net decrease in
Partnership Minimum Gain, determined in accordance with Regulations Section
1.704-2(g). Allocations pursuant to the previous sentence shall be made in
proportion to the respective amounts required to be allocated to each Partner
pursuant thereto. The items to be so allocated shall be determined in accordance
with Section l.704-2(f)(6) and 1.704-2(j)(2) of the Regulations. This Section
1(c) is intended to comply with the minimum gain chargeback requirement in
Section 1.704-2(f) of the Regulations and shall be interpreted consistently
therewith.
(d) Partner Minimum Gain Chargeback. Except as otherwise provided
----------------------------------
in Section 1 .704-2(i)(4) of the Regulations, notwithstanding any other
provision of Article VI hereof, if there is a net decrease in Partner Minimum
Gain attributable to a Partner Nonrecourse Debt during any fiscal year, each
Partner who has a share of the Partner Minimum Gain attributable to such Partner
Nonrecourse Debt, determined in accordance with Section 1 .704-2(i)(5) of the
Regulations, shall be specially allocated items of Partnership income and gain
for such fiscal year (and, if necessary, subsequent fiscal years) in an amount
equal to such Partner's share of the net decrease in Partner
Minimum Gain attributable to such Partner Nonrecourse Debt, determined in
accordance with Regulations Section 1 .704-2(i)(4). Allocations pursuant to the
previous sentence shall be made in proportion to the respective amounts required
to be allocated to each Partner pursuant thereto. The items to be so allocated
shall be determined in accordance with Section 1 .704-2(i)(4) and 1 .704-2(j)(2)
of the Regulations. This Section 1(d) is intended to comply with the minimum
gain chargeback requirement in Section 1 .704-2(i)(4) of the Regulations and
shall be interpreted consistently therewith.
(e) Nonrecourse Deductions. Nonrecourse Deductions for any Fiscal
-----------------------
year shall be specially allocated among the Partners in proportion to their
Limited Partnership Interests.
(f) Partner Nonrecourse Deductions. Any Partner Nonrecourse
-------------------------------
Deductions for any Fiscal year shall be specially allocated to the Partner who
bears the economic risk of loss with respect to the Partner Nonrecourse Debt to
which such Partner Nonrecourse Deductions are attributable in accordance with
Regulations Section 1.704-2(i)(1).
(g) Code Section 754 Adjustment. To the extent an adjustment to
------------------------------
the adjusted tax basis of any Partnership asset pursuant to Code Section 734(b)
or Code Section 743(b) is required to be taken into account in determining
Capital Accounts, the amount of such adjustment to the Capital Accounts shall be
treated as an item of gain (if the adjustment increased the basis of the asset)
or loss (if the adjustment decreases such basis) and such gain or loss shall be
specially allocated to the Partners in a manner consistent with the manner in
which their Capital Accounts are required to be adjusted pursuant to such
Section 1 .704-1(b)(2)(iv)(m) of the Regulations.
(h) Curative Allocations. The Regulatory Allocations consist of
---------------------
the allocations pursuant to Sections 1(a) through 1(g) hereof Notwithstanding
any other provision of this Agreement, the Regulatory Allocations shall be taken
into account in allocating items of income, gain, loss and deduction among the
Partners so that, to the extent possible, the net amount of such allocations of
other items and the Regulatory Allocations to each Partner shall be equal to the
net amount that would have been allocated to each Partner if the Regulatory
Allocations had not occurred.
2. Other Allocations Rules.
-------------------------
(a) For purposes of determining the Profits, Losses, or any other
items allocable to any period, Profits, Losses, and any such other items shall
be determined on a daily, monthly or other basis, as determined by the General
Partner using any permissible method under Code Section 706 and the Regulations
thereunder.
(b) Except as otherwise provided in this Agreement, all items of
Partnership income, gain, loss, deductions, and any other allocations not
otherwise provided for shall be divided among the Partners in the same
proportions as they share Profits or Losses, as the case may be, for the year.
(c) The Partners are aware of the income tax consequences of the
allocations made by this Exhibit B and hereby agree to be bound by the
----------
provisions of this Exhibit B in reporting their shares of Partnership income and
---------
loss for income tax purposes.
3. Tax Allocations: Code Section 704(c). In accordance with Code
----------------------------------------
Section 704(c) and the Regulations thereunder, income, gain, loss, and deduction
with respect to any property contributed to the capital of the Partnership
shall, solely for tax purposes, be allocated among the Partners so as to take
account of any variation between the adjusted basis of such property to the
Partnership for federal income tax purposes and its initial Gross Asset Value.
In the event the Gross Asset Value of any Partnership asset is adjusted pursuant
to this Agreement, subsequent allocations of income, gain, loss and deduction
with respect to such asset shall take account of any variation between the
adjusted basis of such asset for federal income tax purposes and its Gross Asset
Value in the same manner as under Code Section 704(c) and the Regulations
thereunder. Any elections or other decisions relating to such allocations shall
be made by the General Partner in any manner that reasonably reflects the
purpose and intention of this Agreement. Allocations pursuant to this Section
are solely for purposes of federal, state, and local taxes and shall not affect,
or in any way be taken into account in computing, any Partner's Capital Account
or share of Profits, Losses, other items, or distributions pursuant to any
provision of this Agreement.