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Exhibit 3.9
AMENDED AND RESTATED LIMITED
PARTNERSHIP AGREEMENT
OF
MOBILE STORAGE GROUP (TEXAS),
L.P.
A TEXAS LIMITED
PARTNERSHIP
AMENDED AND
RESTATED
LIMITED PARTNERSHIP
AGREEMENT
OF
MOBILE STORAGE GROUP (TEXAS),
L.P.
A TEXAS LIMITED
PARTNERSHIP
THIS
AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT (the
“Agreement” ) is made and entered into as of
December __, 2003 (the “Effective Date” ), by
and among Mobile Storage Group, Inc., a California corporation (
“MSGI” ), and as the general partner (the
“General Partner” ), and MSG Investments, Inc.,
a California corporation ( “MSG Investments” ),
as the limited partner (the “Limited Partner” ).
MSGI and MSG Investments are sometimes herein referred to
individually as a “Partner” and collectively as
the “Partners .”
RECITALS
A.
MSGI is a provider of portable storage solutions with a rental
fleet that includes portable storage containers, over-the-road
trailers and portable office units located in Texas listed on
Exhibit A attached hereto (collectively, the “Texas
Assets” ).
B.
MSGI desires to contribute the Texas Assets to the Partnership (as
defined below).
C.
MSGI and MSG Investments entered into that certain Limited
Partnership Agreement dated as of July 15, 2003.
D.
MSGI and MSG Investments desire to amend and restate this Agreement
to establish their rights and responsibilities.
NOW,
THEREFORE, for good and valuable consideration, receipt of which is
hereby acknowledged, and the mutual promises contained herein, the
parties hereto agree as follows:
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ARTICLE I
FORMATION, PURPOSES,
DURATION
Section
1.1 Formation and Name .
1.1.1
Formation . The parties hereto hereby enter into and form a
limited partnership (the “ Partnership ”)
pursuant to the Texas Revised Limited Partnership Act, Tex. Rev.
Civ. Stat. Article 6132a-1, et seq . (the
“Act” ) for the limited purposes and scope set
forth in this Agreement. The Partnership shall at all times be
governed by the Act, except to the extent expressly provided herein
to the contrary.
1.1.2
Name . The name of the Partnership shall be “Mobile
Storage Group (Texas), L.P.” Except as may be approved by the
General Partner, the business of the Partnership shall be conducted
solely under such name and all assets of the Partnership shall be
held under such name.
1.1.3
Fictitious Business Name Certificate . The General Partner
shall execute a Certificate of Limited Partnership for the
Partnership (the “Certificate” ) and shall file
it with the Secretary of State of the State of Texas and, at the
option of the General Partner, record it in each county in which
the Partnership shall own real property or an interest therein. The
General Partner shall execute and record or file any other
statements or certificates required by law or advantageous for
conducting the business of the Partnership.
1.1.4
Other Acts/Filings . The Partners shall from time to time
execute or cause to be executed all such certificates and other
documents, and do or cause to be done all such filings, recordings,
publishings and other acts, as are necessary to comply with the
requirements of law for the formation and operation of the
Partnership in all jurisdictions in which the Partnership is
authorized to conduct business.
Section
1.2 Purposes and Scope of the Partnership . The purpose of
the Partnership is to conduct any lawful business, purpose or
activity, except as prohibited by the Act.
Section
1.3 Scope of Partners’ Authority . Except as
otherwise expressly and specifically provided in this Agreement, no
Partner shall have any authority to bind or act for, or assume any
obligations or responsibility on behalf of, the Partnership.
Nothing herein contained shall be considered to constitute a
Partner as the agent of any other Partner, except as specifically
authorized and provided for herein.
Section
1.4 Principal Place of Business . The principal place
of business of the Partnership shall be located at the offices of
the General Partner, 2900 East Airport Way,
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Irving, Texas 75062, or at such other location as
may be approved by the General Partner from time to time. All
notices to the Partnership shall also be provided to the General
Partner at the address set forth in Section 10.2.
Section
1.5 Term . The term of the Partnership shall commence as of
the Effective Date and shall continue, unless sooner terminated in
accordance with other provisions of this Agreement until the
Partners agree to its termination; provided, however, that the
Partnership shall, if not sooner terminated, terminate on December
31, 2021, unless otherwise extended by mutual written agreement of
the Partners. No Partner shall have the right and each Partner
hereby agrees not to withdraw from the Partnership nor to dissolve,
terminate or liquidate, or to petition a court for the dissolution,
termination or liquidation of the Partnership, except as expressly
permitted in this Agreement or approved by the Partners, and no
Partner at any time shall have the right to petition or to take any
action to subject the Property, the Project or any part thereof or
the Partnership assets or any part thereof to the authority of any
court of bankruptcy, insolvency, receivership or similar
proceeding. The Partners irrevocably waive during the term of the
Partnership and during the period of its liquidation following any
dissolution, any right that they may have to maintain any action
for partition with respect to any asset of the
Partnership.
Section
1.6 Tax Matters Partner . The General Partner shall be the
Tax Matters Partner of the Partnership.
Section
1.7 Definitions . For ease of reference, a list of all
defined terms used in this Agreement and the exhibits and schedules
hereto, together with the respective Sections of this Agreement in
which such terms are defined, is attached hereto as Exhibit
A .
ARTICLE II
CAPITAL CONTRIBUTIONS, CAPITAL
ACCOUNTS
Section
2.1 Percentage Interests and Capital Accounts .
2.1.1
Percentage Interests . The Partners shall have the following
undivided percentage interests in the Partnership (individually a
“Percentage Interest” and collectively
“Percentage Interests” ):
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MSGI
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99%
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MSG Investments
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1%
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100%
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2.1.2
Adjustments . No adjustment to the Percentage Interest of
any Partner shall be made except as a result of a transfer of a
Partner’s Partnership interest or a portion thereof pursuant
to Article VII or IX hereof.
2.2.3
Capital Accounts Defined . As used herein, the term
“Capital Account” shall mean the capital account
of each Partner in the Partnership maintained in accordance with
Section 2.4 below. The initial Capital Account balance of each
Partner, after taking into account the amount of all contributions
(including cash) contributed pursuant to Sections 2.2.1, 2.2.2 and
2.2.3, shall be as set forth in Exhibit B attached
hereto.
Section
2.2 Initial Capital Contributions . Upon execution of this
Agreement, MSGI shall cause to be conveyed to the Partnership the
Texas Assets, all Permits and contract rights affecting the Texas
Assets, and other rights related thereto, and any and all other
agreements, contracts, documents or data relating to the Texas
Assets, all of which shall be conveyed, transferred or assigned to
the Partnership, by separate written instruments, in form and
substance as required by MSGI, subject only to the Permitted
Encumbrances and the Permitted Liabilities.
Section
2.3 Additional Capital Requirements .
2.3.1
General . If additional funds are required by the
Partnership (“ Excess Additional Capital Contribution
Requirements” ), the General Partner may give notice to
the other Partners in the manner provided in Section 10.2. Such
notice shall specify in reasonable detail the amount and purpose of
any such additional capital requirement (the amount of any such
inadequacy is hereinafter referred to as a
“Shortfall” ). The General Partner shall
determine the method or methods by which the Partnership shall
obtain the required funds. Such methods may include, without
limitation, the making of additional capital contributions by the
Partners or the borrowing of funds by the Partnership from the
Partners or from third-party lenders.
2.3.2
Additional Capital Contributions . If the General Partner
elects to require the Partners to fund the Shortfall through
additional capital contributions, the General Partner shall send a
second notice to the Partners requesting that each Partner make its
respective additional capital contribution. Each Partner shall,
within twenty (20) days after receipt of such notice from the
General Partner, deliver to the General Partner for deposit in the
Partnership’s bank account an additional capital contribution
in an amount equal to such Partner’s share of the Shortfall,
determined according to the Percentage Interests of the Partners,
and the Capital Accounts of the Partners shall be credited and the
obligations for which funds were required shall be
satisfied.
2.3.3
Contribution Loans .
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(a)
In the event any Partner (the “Non-Contributing
Partner” ) fails to make any additional capital
contribution required of it under a particular Capital Contribution
Notice pursuant to Section 2.3.2 or 2.3.3 within the time specified
in Sections 2.3.2 or 2.3.3, respectively, then the General Partner
(the “Contributing Partner” ) shall have the
right, but not the obligation, to advance directly to the
Partnership as a loan to the Non-Contributing Partner (
“Contribution Loan” ) the funds required from
the Non-Contributing Partner as an Initial Cash Capital
Contribution or under such Capital Contribution Notice.
(b)
Notwithstanding any provision of this Agreement to the contrary, in
the event the Contributing Partner does not elect to advance the
full amount of the additional funds required from the
Non-Contributing Partner, then the Contributing Partner shall be
entitled in its sole discretion to (i) withdraw its corresponding
additional capital contribution made pursuant to such Capital
Contribution Notice (or withdraw its corresponding Initial Cash
Capital Contribution) (ii) treat the failure of the
Non-Contributing Partner to make the Initial Cash Capital
Contribution or additional capital contribution in question as an
Event of Default, or (iii) act under both clauses (i) and (ii)
above.
2.3.4
Repayment through Distributions . In the event the
Contributing Partner elects to make a Contribution Loan, then the
Contribution Loan shall bear interest at a rate equal to the lesser
of (a) the Prime Rate (as announced from time to time in The
Wall Street Journal ) plus four percent (4%) per annum, or (b)
the maximum legal rate of interest then permitted under applicable
law and, except as set forth in Section 2.3.3, shall be repaid out
of any subsequent distributions made pursuant to this Agreement to
which the Non-Contributing Partner for whose account the
Contribution Loan was made would otherwise be entitled, which
amounts shall be applied first to interest and then to principal,
until the Contribution Loan is paid in full. If not sooner repaid,
all Contribution Loans shall become immediately due and payable
upon the dissolution and liquidation of the Partnership.
2.3.5
Remedies . In the event any Contribution Loan has not been
repaid in full within ninety (90) days of the date the Contribution
Loan is made, then, in addition to any other rights or remedies
available to the Contributing Partner at law or in equity or
pursuant to this Agreement, at any time thereafter the Contributing
Partner may elect to proceed under any of subparagraphs (a) or (b)
below.
(a)
Unless and until the Contributing Partner has elected to proceed
under subparagraph (b) below or has elected to pursue any other
remedy available to it at law or in equity, such Contribution Loan
shall remain in place and shall bear interest and be repaid as
provided in Section 2.3.4 above.
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(b)
The Contributing Partner may elect to make written demand upon the
Non-Contributing Partner for payment in full of such Contribution
Loan, including accrued interest. Upon failure of the
Non-Contributing Partner to pay such Contribution Loan and interest
in full within ten (10) days of such demand, the Contributing
Partner may elect to treat such failure to pay as an Event of
Default as provided in Section 8.2 hereof.
2.3.6
Other Partner Loans . If capital contributions to fund a
Shortfall are not approved by the General Partner, and if loans
from third parties to the Partnership are not available or not
approved by the General Partner for such purpose, if any Partner
does not advance funds as required under Sections 2.2 or 2.3.3, any
Partner at its sole option may loan the amount of such required
funds (or any portion thereof), as applicable, to the Partnership,
which loan shall bear interest at the rate specified in Section
2.3.4.
Section
2.4 Adjustments to Capital Accounts . The Capital Account of
each Partner shall be maintained strictly in accordance with the
rules set forth in Section 1.7041(b)(2)(iv) of the Treasury
Regulations. Subject to the preceding sentence, each
Partner’s Capital Account shall be adjusted as
follows:
2.4.1
Increases in Capital Accounts . The Capital Account of each
Partner shall be increased by:
(a)
the amount of money contributed by such Partner to the Partnership
and the fair market value of any property contributed by such
Partner to the Partnership (net of any liabilities secured by such
contributed property that the Partnership is considered to assume
or take subject to under Section 752 of the Internal Revenue Code
of 1986, as amended (“ Code ”)); and
(b)
the Profits allocated to such Partner and allocations to such
Partner of other items of book income and gain, including income
and gain exempt from tax and income and gain described in Treasury
Regulations Section 1.704-1(b)(2)(iv)(g), but excluding income and
gain described in Treasury Regulations Section
1.704-1(b)(4)(i).
2.4.2
Decreases in Capital Accounts . The Capital Account of each
Partner shall be decreased by:
(a)
the amount of money distributed to such Partner by the Partnership
and the fair market value of property distributed to such Partner
by the Partnership (net of liabilities secured by such distributed
property that such Partner is considered to assume or take subject
to under Code Section 752);
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(b)
allocations of expenditures of the Partnership of the type
described in Code Section 705(a)(2)(B); and
(c)
allocations of Loss and other items of book loss, including items
of loss and deduction described in Treasury Regulations Section
1.704-1(b)(2)(iv)(g), but excluding items described in Treasury
Regulations Section 1.704-1(b)(4)(i) or (iii).
2.4.3
Capital Account of Transferee . If any Partnership interest
is transferred in accordance with Article VII, the transferee of
such interest shall succeed to the Capital Account of the
transferor to the extent it relates to the interest transferred,
except as provided in Treasury Regulations Section
1.704-1(b).
2.4.4
Adjustment to Book Values of Assets . In the event the Book
Values of Partnership assets are adjusted pursuant to Treasury
Regulations Section 1.704-1(b), the Capital Accounts of the
Partners shall be adjusted simultaneously to reflect the
allocations of gain or loss that would be made to the Partners if
there were a taxable disposition of the Partnership’s
property for its fair market value.
2.4.5
Distribution in Kind . If any assets of the Partnership are
to be distributed in kind, such assets shall be distributed on the
basis of their fair market values after the Partners’ Capital
Accounts have been adjusted to reflect the manner in which any
unrealized gain and loss with respect to such assets (that have not
been reflected in the Capital Accounts previously) would be
allocated between the Partners if there were a taxable disposition
of the Property for its fair market value.
2.4.6
Regulations Controlling . It is the intent of the Partners
that the Capital Accounts be determined and maintained in
accordance with the principles of Treasury Regulations Sections
1.704-1 and 1.704-2 at all times throughout the full term of the
Partnership and this Section 2.4 shall be so interpreted and
applied.
Section
2.5 Withdrawal of Capital . Except as otherwise provided
herein, no portion of the capital of the Partnership may be
withdrawn at any time without the Approval of the General Partner.
Upon termination of the Partnership, the Partners’ capital
shall be distributed pursuant to Section 8.5 hereof.
Section
2.6 No Third Party Rights . The right of the Partnership,
the General or any Partner, as applicable, to require any
additional contributions or payments by the Partners under the
terms of this Agreement shall not be construed as conferring any
rights or benefits to or upon any person or entity not a party to
this Agreement, including, but not limited to, any tenant or
purchaser of any part of the Property, or any creditor of the
Partnership.
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ARTICLE III
MANAGEMENT
Section
3.1 Powers and Responsibilities of the Partners .
3.1.1
Management by General Partner . The overall management and
control of the business and affairs of the Partnership shall be
vested in the General Partner in the manner described below. Except
where expressly provided to the contrary in this Agreement, the
General Partner shall have the full, exclusive and absolute right,
power and authority to manage and control the Partnership and the
property, assets and business thereof. The General Partner shall
have all right, power and authority conferred upon it by law
(except where expressly provided to the contrary in this Agreement)
or under the provisions of this Agreement.
Section
3.2 Appointment and Replacement of Managing General Partner;
Duties of Managing General Partner .
3.2.1
Appointment and Replacement of General Partner . The General
Partner shall be designated pursuant to this Section 3.2.1. The
affirmative vote or consent of holders of a majority of the
Percentage Interests shall be sufficient to elect the General
Partner. The General Partner may be removed at any time, for cause,
by holders of a majority of the Percentage Interests;
provided that no affirmative vote or consent of holders
shall be required to elect the General Partner in the case of any
General Partner that acquires its Partnership interest, either
directly or indirectly, through (i) the sale, assignment, transfer,
mortgage, charge or other encumbrance in connection with any
Security Agreement or (ii) the enforcement of any remedy under any
Security Agreement by any lender thereunder and, provided
further , that upon any such actual sale, assignment,
transfer, mortgage, charge or other encumbrance of any Partnership
interest under the Security Agreement or foreclosure of any
Partnership interest in connection with the enforcement of any
remedy under the Security Agreement, the transferee of any such
transfer shall be deemed to be the General Partner immediately
thereafter.
3.2.2
Duties of General Partner . The General Partner shall
conduct or cause to be conducted the ordinary and usual business
and affairs of the Partnership in accordance with and as limited by
this Agreement.
3.2.3
Authority of General Partner . The acts of the General
Partner shall bind the Partners and the Partnership when within the
scope of the General Partner’s authority.
3.2.4
Enumeration of Specific Duties of General Partner . The
General Partner shall devote such time to the Partnership and its
business as shall be reasonably
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necessary to conduct the business of the
Partnership in an efficient manner and to carry out the General
Partner’s responsibilities herein. Without limiting the
generality of the foregoing, and subject to the provisions of
Section 3.4 below, the General Partner shall have the right and
duty to do, accomplish and complete, for and on behalf of the
Partnership with reasonable diligence and in a prompt and
businesslike manner, all of the following:
(a)
the General Partner shall execute and deliver leases and other
legal documents necessary to carry out the business of the
Partnership;
(b)
the General Partner shall demand, receive, acknowledge and
institute legal action for recovery of any and all rents, revenues,
receipts and consideration due and payable to the Partnership, in
accordance with prudent business practices;
(c)
the General Partner shall keep all books of account and other
records of the Partnership and deliver all reports in the manner
provided in Article IV below;
(d)
the General Partner shall maintain all funds of the Partnership in
a Partnership bank account in the manner provided in Article IV
below;
(e)
the General Partner shall defend any claims, liens, demands, suits
or legal proceedings made or instituted against the Partnership or
the Partners by other parties arising out of the business of the
Partnership, through legal counsel for the Partnership giving the
Partners prompt notice of the receipt of any material claim, lien
or demand or the commencement of any suit or legal proceeding and
promptly providing the Partners all information relevant or
necessary thereto;
(f)
the General Partner shall retain or employ and coordinate the
services of all employees, supervisors, architects, engineers,
contractors, accountants, attorneys and other persons necessary or
appropriate to carry out the business of the
Partnership;
(g)
the General Partner shall pay, or cause to be paid, prior to
delinquency, all insurance premiums, debts and other obligations of
the Partnership;
(h)
the General Partner shall make distributions from the funds of the
Partnership periodically to the Partners in accordance with the
provisions of this Agreement;
(i)
the General Partner shall operate, maintain and otherwise manage
the Partnership in an efficient manner and at all times maintain an
organization
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sufficient to enable it to carry out all of its
duties, obligations and functions as General Partner under this
Agreement; and
(j)
the General Partner shall promptly comply with, or cause to be
complied with, all present and future laws, ordinances, orders,
rules, regulations and requirements of all federal, state and
municipal governments, courts, departments, commissions, boards and
officers or any other body exercising functions similar to those of
any of the foregoing (collectively, “ Laws ”),
and when in the opinion of the General Partner a reason exists to
contest compliance with such Laws, the General Partner shall
contest or assist the Partners in contesting the validity or
application of any such Laws.
3.2.5
Hiring Employees . The General Partner shall have the
authority to hire employees of the Partnership.
Section
3.3 Compensation of Partners . No payment will be made by
the Partnership to any Partner or to any Affiliate thereof for any
services performed for the Partnership by such Partner or any
member, shareholder, director or employee of such Partner or any
Affiliate of such Partner.
Section
3.4 Right to Terminate General Partner . Any Partner shall
have the right to terminate MSGI as the General Partner by written
notice to MSGI upon the voluntary or involuntary liquidation,
winding up or dissolution of MSGI.
Section
3.5 Other Business Activities . Each of the Partners
understands that the other Partners or their Affiliates may be
interested, directly or indirectly, in various other businesses and
undertakings not included in the Partnership. The Partners hereby
agree that the creation of the Partnership and the assumption by
each of the Partners of their duties hereunder shall be without
prejudice to their rights (or the rights of their Affiliates) to
have such other interests and activities and to receive and enjoy
profits or compensation therefrom, and each Partner waives any
rights it might otherwise have to share or participate in such
other interests or activities of the other Partners or their
Affiliates. Except as otherwise provided herein, the Partners and
their Affiliates may engage in or possess any interest in any other
business venture of any nature or description independently or with
others and neither the Partnership nor the other Partners shall
have any right by virtue of this Agreement in and to such venture
or the income or profits derived therefrom.
ARTICLE IV
BOOKS AND RECORDS;
BANK ACCOUNTS; REPORTS
Section
4.1 Books and Records
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4.1.1
General . At all times during the term hereof, the General
Partner, at its own expense, shall cause accurate books and records
of account to be maintained in which shall be entered all matters
relating to the Partnership, including all income, expenditures,
assets and liabilities thereof.
4.1.2
Accrual Basis . Such books and records of account shall be
maintained on an accrual basis in accordance with generally
accepted accounting principles or tax accounting principles, as
appropriate, and shall be adequate to provide each Partner with all
financial and tax information as may be needed by each Partner or
any Affiliate of each Partner for purposes of satisfying the
financial and tax reporting obligations of each Partner or its
Affiliates.
4.1.3
Information to Partners . Each Partner shall be entitled to
any additional information prepared at the expense of the
Partnership necessary for the Partner to adjust the financial basis
statements, reports and information received by such Partner from
the Partnership to such other tax basis as the Partner’s
individual needs may dictate.
Section
4.2 Location and Rights of Inspection .
4.2.1
Location . The General Partner, at its own expense, shall
keep, or cause to be kept, full and accurate records of all
transactions of the Partnership, at the principal place of business
of the Partnership as specified in Article I hereof, including, but
not limited to, the following:
(a)
A current list of the full name and last known business or
residence address of each Partner, together with the amount of
capital contributions, Capital Account and percentage share in
Profits and Losses of each Partner.
(b)
A copy of the Certificate and all amendments to the
Statement.
(c)
Copies of this Agreement and all amendments to this
Agreement.
(d)
Copies of the Partnership’s federal, state and local income
tax or information returns and reports, if any, for the six (6)
most recent tax years, as applicable.
(e)
Financial statements of the Partnership for the six (6) most recent
fiscal years, as applicable.
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(f)
The Partnership’s books and records as they relate to the
internal affairs of the Partnership for at least the current and
past three (3) fiscal years, as applicable.
4.2.2
Inspection of Records . Each Partner or such Partner’s
duly authorized representative shall have the right, upon
reasonable request, to do each of the following:
(a)
Inspect and copy, upon paying the reasonable cost thereof, during
normal business hours any of the Partnership records required to be
maintained under Section 4.2.1; and
(b)
Obtain from the General Partner, promptly after their becoming
available, a copy of the Partnership’s federal, state and
local income tax or information returns for each year.
The General Partner shall send to each Partner
within ninety (90) days after the end of each tax year the
information, consistent with the provisions of Section 4.1,
necessary for each Partner to complete such Partner’s federal
and state income tax or information returns and a copy of the
Partnership’s federal, state and local income tax or
information returns for the year.
Section
4.3 Fiscal Year . The tax and fiscal year of the Partnership
shall end on December 31 of each year unless another fiscal year is
required by the Code or the Treasury Regulations.
Section
4.4 Statements of Financial Condition . The General Partner
shall prepare a statement of the financial condition of the
Partnership as of the last day of each quarter of each fiscal year,
and an income statement and statement of Cash Flow for each
calendar month. Each statement of financial condition shall be
prepared in accordance with generally accepted accounting
principles and shall be certified to be true and correct to the
best of the General Partner’s knowledge and belief. Copies
shall be furnished to the other Partners within forty-five (45)
days after the end of each quarter as to the statements of
financial condition, or within thirty (30) days after the end of
each calendar month as to the income statements and statements of
Cash Flow. An annual statement of the financial condition of the
Partnership an annual income statement and an annual statement of
Cash Flow (unaudited) shall be furnished to each Partner within
ninety (90) days after the close of the fiscal year. Such annual
statements shall be certified to be true and correct to the best of
the General Partner’s knowledge and belief.
Section
4.5 Audit . The Partnership shall, at the
Partnership’s expense, engage a firm of independent certified
public accountants which is approved by the General Partner. The
initial accounting firm selected by the General Partner shall be
either Ernst
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& Young LLP or another nationally recognized
firm of independent certified public accountants approved by the
General Partner. The independent auditors shall at the end of each
fiscal year (a) audit the records and accounts of the Partnership,
(b) render their opinion on the statement of financial condition of
the Partnership as of the end of each fiscal year and of the
results of its operations, the changes in its financial condition
and its income for each fiscal year, as prepared by the General
Partner, and (c) render their opinion on the annual computations of
Cash Flow for each fiscal year made by the General Partner and as
to whether distributions thereof are in accordance with Section 5.1
of this Agreement.
Section
4.6 Bank Accounts . Funds of the Partnership shall be
deposited in an account or accounts of a type, in form and name and
in a bank or banks approved by the General Partner. Withdrawals
from bank accounts shall be made by agents or officers of the
General Partner.
Section
4.7 Information from Partners . Each Partner shall furnish
to the Partnership in a timely manner such information as the
Partnership may require to comply with its tax or other reporting
requirements under federal, state, local or foreign law.
ARTICLE V
DISTRIBUTIONS; ALLOCATIONS OF
PROFITS
AND LOSSES TO THE PARTNERS
Section
5.1 Distributions to Partners .
5.1.1
Definition of Cash Flow . “ Cash Flow ”
shall be computed by the General Partner on a quarterly basis and
shall consist of the gross cash receipts of the Partnership of any
kind or description received during each calendar quarter,
including not by way of limitation, the net proceeds received by
the Partnership after deducting the following:
(a)
all costs and expenses incurred in connection with the operations
of the Partnership; and
(b)
reserved cash to the extent of amounts approved by the General
Partner.
5.1.2
Distribution of Cash Flow . Within thirty (30) days after
the end of each calendar quarter, the General Partner shall
distribute the entire Cash Flow available for distribution (as
determined by the General Partner in accordance with Section
5.1.1). All distributions shall be made in accordance
with:
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(a)
First, to each of the Partners an amount equal to its Unreturned
Additional Capital (defined below) pro rata in accordance with the
amounts of the Partners’ respective Unreturned Additional
Capital.
(b)
Second, to each of the Partners an amount equal to its Unreturned
Initial Capital (defined below), pro rata in accordance with the
amounts of the Partners’ respective Unreturned Initial
Capital.
(c)
Last, to each of the Partners in accordance with the
Partners’ respective Percentage Interests.
“ Unreturned Initial Capital ”
with respect to a Partner means, as of any date of calculation, the
aggregate amount of Initial Cash Capital Contributions contributed
by such Partner pursuant to Sections 2.2.1, 2.2.2 or 2.2.3 (from
the date such Initial Cash Capital Contributions are deposited in
the Partnership account), reduced by all distributions to such
Partner with respect to such initial capital contributions pursuant
to Section 5.1.2(b).
“ Unreturned Additional Capital
” with respect to a Partner means, as of any date of
calculation, the aggregate amount of additional capital
contributions contributed by such Partner pursuant to Section 2.3
or treated as contributed under that Section pursuant to Section
2.3.4(b) (from the date such capital contributions are deposited in
the Partnership account), reduced by all distributions to such
Partner with respect to such additional capital contributions
pursuant to Section 5.1.2(b).
5.1.3
Distributions in Liquidation . Notwithstanding Section
5.1.2, distributions made in connection with the liquidation of the
Partnership or of any Partner’s interest in the Partnership
(liquidation for this purpose to have the meaning set forth in
Treasury Regulations Section 1.704-1(b)), shall be made to all
Partners whose interests are being liquidated in accordance with
their positive Capital Account balances (after taking into account
any adjustments for the Partnership taxable year during which such
liquidation occurs and after adjusting to reflect allocations that
would be made if there were a taxable disposition of the
Partnership’s property for its fair market value).
Notwithstanding the foregoing, the General Partner may retain (on a
proportional basis) from the liquidating distributions reasonable
amounts for reserves or for contingent liabilities, provided such
amounts are distributed as soon as is practicable. The timing and
method of such distributions shall comply with Treasury Regulations
Section 1.704-1(b) or any similar regulations promulgated in the
future, or if no such regulations apply, as soon as possible. The
distributions set forth in this Section 5.1.3 comply with the
requirement of Treasury Regulations Section 1.704-1(b)(2)(ii)(b)(2)
that liquidating distributions be made in accordance with positive
Capital Accounts. It is intended that such distributions will
result in the Partners receiving aggregate distributions equal to
the
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amount of distributions that would have been
received if the liquidating distribution were made pursuant to
Section 5.1.3. However, if the balances in the Capital Accounts do
not result in such intention being satisfied,
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