LIMITED PARTNERSHIP AGREEMENT OF CONCORD PROCESSING, L.P.

 

 

1.5            “Bankruptcy” means, as to any Partner, that Partner’s taking or acquiescing in the taking of any action seeking relief under, or advantage of, any applicable debtor relief liquidation, receivership, conservatorship, bankruptcy, moratorium, rearrangement, insolvency, reorganization, or similar law affecting the rights or remedies of creditors generally, as in effect from time to time. For the purpose of this definition, the term “acquiescing” shall include, without limitation, the failure to file, within 60 days after its entry, a petition, answer, or motion to vacate or to discharge any order, judgment, or decree providing for any relief under any such law.

 

1.6            “Business Day” means any day on which national banking institutions in Delaware is required to be open.

 

1.7            “Capital Account” means the account established for each Partner pursuant to Exhibit B.

 

1.8            “Capital Contribution” means the amount of money contributed to the Partnership by a Partner and shall include the contributions of such Partner made in accordance with Article IV of this Agreement, including without limitation the Initial Capital Contribution, or any additional Capital Contribution, in each instance, as funded by the Partners.

 

1.9            “Certificate” means the certificate of limited partnership, or any amendment thereto, concerning the Partnership filed with the Secretary of State of the State of Texas in accordance with the Limited Partnership Act.

 

1.10          “Code” means the Internal Revenue Code of 1986, as amended.

 

1.11          “Commercially Reasonable Financing” means debt incurred for funds borrowed from a bank or other financial institution to finance the Partnership’s business.

 

1.12          “General Partner” means Concord One, LLC a Delaware limited liability company, together with each Person (if any) that subsequently becomes an additional or substituted General Partner herein in accordance with the terms of this Agreement.

 

1.13          “Initial Capital Contribution” with respect to any Partner shall mean the amount of cash contributed by such Partner to the capital of the Partnership pursuant to Exhibit A attached hereto.

 

1.14          “Limited Partner” means Concord NN, LLC, a Delaware limited liability company, together with each other Person (if any) that subsequently becomes a substituted Limited Partner, but excluding any such Person that subsequently ceases to be a Limited Partner, pursuant to the provisions of this Agreement.

 

1.15          “Limited Partnership Act” means The Texas Revised Limited Partnership Act, as amended from time to time.

 

1.16          “Limited Partnership Interest” means the interest held by any Limited Partner in the Partnership as a limited partner.

 

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1.17          “Liquidating Trustee” means the General Partner or other Person appointed pursuant to Article IX to supervise the _, liquidation of the Partnership.

 

1.18          “NN” shall mean Concord NN, LLC, a Delaware limited liability company, its permitted successors and assigns.

 

1.19          “Operations” shall mean all revenue producing activities of the Partnership other than activities relating to a Terminating Capital Transaction.

 

1.20          “Partner(s)” means the General Partner and the Limited Partner(s).

 

1.21          “Partnership” means “Concord Processing, L.P.”

 

1.22          “Percentage Interest” means all rights and interests of a Partner (expressed as a percentage on Exhibit A) under this Agreement and the Limited Partnership Act, including (i) the right of a Partner to receive distributions of revenues, allocations of income and loss and distributions of liquidation proceeds under this Agreement, and (ii) all management rights, voting rights or rights to consent of the General Partner.

 

1.23          “Person” means an individual, partnership, corporation, trust, unincorporated association, or other entity or association.

 

1.24          “Regulations” shall mean the regulations promulgated by the United States Department of the Treasury pursuant to and in respect of provisions of the Code. All references herein to sections of the Regulations shall include any corresponding provision or provisions of succeeding, similar, substitute, proposed or final Regulations.

 

1.25          “Reserves” mean, for any period, the amount set aside for, or amount allocated to, reserves established from the Partnership’s receipts for such period, in amounts deemed appropriate by the General Partner, for contingent liabilities, working capital, reasonable capital expenditures, and payment of other obligations, debts, liabilities, costs, or other Partnership expenses.

 

1.26          “Securities Laws” means the Securities Act of 1933, as amended, and the securities laws of any State together with the rules and regulations promulgated thereunder.

 

1.27          “Terminating Capital Transaction” shall mean any sale or other disposition of all or substantially all of the then remaining assets of the Partnership which is entered into in connection with the dissolution, termination, and winding up of the Partnership or which will result in the dissolution of the Partnership.

 

1.28          “Unrecovered Contribution” with respect to a Partner shall mean the Capital Contributions of such Partner minus the total amount of cash distributed by the Partnership to such Partner pursuant to Section 7. 1 (a), as applicable.

 

1.29         All other terms used herein but not defined shall have the meaning given to them in the text of this Agreement.

 

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ARTICLE 2

 

Organization

 

2.1 Formation of the Partnership. The Partners hereby form the Partnership in accordance with the terms of this Agreement pursuant to the Limited Partnership Act. Except as provided for herein, the Limited Partnership Act shall govern the rights and liabilities of the Partners.

 

2.2 Partnership Certificate. At all times prior to the termination of this Agreement, the General Partner shall cause the Partnership to comply with all requirements imposed by the Limited Partnership Act, including without limitation the filing of the Certificate and any amendments thereto, and shall take all other appropriate action to comply with any legal requirements for the continuation of the Partnership in accordance with the terms of this Agreement in each jurisdiction where the Partnership intends to conduct business.

 

2.3 Partnership Name. The business of the Partnership shall be conducted under the name of “Concord Processing, L.P.”, or such other name as the General Partner shall select from time to time.

 

2.4 Principal Office, Registered Office, Registered Agent. The principal place of business of the Partnership shall be at 1800 South Washington St., Amarillo, Texas 79102, but substitute or additional places of business may be established at such other locations as may from time to time be determined by the General Partner. The registered agent of the Partnership shall be CT Corporation and the registered office of the Partnership in the State of Texas shall be located at 350 N. St. Paul St., Dallas, Texas 75201.

 

2.5 Term of Partnership. The term of the Partnership shall commence upon the filing of the Certificate of Limited Partnership with the Secretary of State of the State of Texas, and shall continue until December 31, 2052, or until such earlier date as the Partnership is dissolved and thereafter, to the extent provided for by applicable law, until wound up and terminated pursuant to the provisions of this Agreement.

 

ARTICLE 3

 

Purposes and Powers

 

3.1 Purposes of the Partnership. The purposes of the Partnership shall be the provision of electronic transaction processing services, together with all action necessary or convenient to such purposes, which development may be funded by available cash of the Partnership, by proceeds from borrowings by the Partnership or by contributions of the Partners.

 

3.2 Powers of the Partnership. The Partnership purposes set forth in Section 3.1 hereof may be accomplished by taking any action which is permitted under the Limited Partnership Act and which is customary or reasonably related to the Partnership purposes set forth above; provided, however, that nothing contained in this Section 3.2 or elsewhere in this Agreement shall obligate the General Partner to take any action on behalf of the Partnership if it

 

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deems such action to be inappropriate or not reasonably necessary to accomplish the Partnership purposes.

 

ARTICLE 4

 

Capital Contributions

 

4.1 Initial Capital Contributions. On the date of this Agreement and simultaneously with the formation of the Partnership, the Partners shall make Capital Contributions in the amounts set forth on Exhibit A hereto (the “Initial Capital Contributions”).

 

4.2 Subsequent Funding. If the General Partner determines that debt financing is not in the best interest of the Partnership and that funds in excess of the Initial Capital Contributions are required (i) to further the purposes set forth in Article 3 of this Agreement, (ii) to pay fees, costs or expenses payable by the Partnership pursuant to this Agreement, or (iii) otherwise to meet the Partnership’s then existing obligations, and, in each case, (A) funds are not otherwise available from the Partnership’s Available Cash and (B) all of the Initial Capital Contributions, together with any equipment or other financing received by the Partnership, have been expended or budgeted for expenditure by the Partnership for purposes of Operations, then within forty-five (45) Business Days after notice from the General Partner, each of the Partners shall make further Capital Contributions in the amount so determined (“Additional Capital Contribution”) pro rata in accordance with each Partner’s respective Percentage Interest. The Additional Capital Contribution, if any, shall be in addition to the Initial Capital Contribution.

 

ARTICLE 5

 

Rights and Obligations of the Limited Partner

 

5.1            General Rights and Limitations of the Limited Partner. No Limited Partner shall be:

 

(a)              personally liable beyond its Capital Contribution for any Partnership losses or liabilities, except as may be required pursuant to the Limited Partnership Act or unless such a liability is founded on some unauthorized activity of the Limited Partner, or except for any particular obligations which a Limited Partner may decide voluntarily to undertake personally pursuant to legal arrangements outside of this Agreement;

 

(b)              allowed to take any part whatsoever in the management or control of the Partnership business (including without limitation the sale of the assets of the Partnership), or to sign for or to bind the Partnership, such power to vest solely and exclusively in the General Partner;

 

(c)              entitled to be paid any salary or to have a Partnership drawing account;

 

(d)              entitled to a return of or any interest on its Capital Contribution, or any profits, except as otherwise provided in this Agreement; or

 

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(e)              entitled to priority over any other Limited Partner, either as to return of its Capital Contribution, or as to gains, losses, or distributions, except as otherwise provided in this Agreement.

 

Notwithstanding the foregoing, a Limited Partner shall be permitted to act or exercise, and shall not be deemed to participate in the control of the business by virtue of acting in any capacity or exercising, any of the powers enumerated in the Limited Partnership Act, including, without limitation, acting as a contractor for or an agent or employee of the Partnership and accepting a salary or other payment for such services.

 

ARTICLE 6

 

Rights and Obligations of the
General Partner

 

6.1 Rights and Obligations of the General Partner as Manager. Subject to the limitations of this Agreement, the General Partner shall have (i) full, exclusive, and complete authority to manage and control the Partnership and make all decisions affecting the management and operation of the Partnership’s business, and (ii) full authority to take any action which the General Partner believes in good faith to be in furtherance of the Partnership’s business and purposes and to exercise all rights and powers generally conferred by law in connection therewith, including contracting with appropriate entities (including, subject to the limitations set forth in Section 6.5(e) hereof, the General Partner, a Limited Partner, and/or any of their respective Affiliates) to provide services to the Partnership at the reasonable expense of the Partnership and borrow money on behalf of the Partnership. No Person or governmental body dealing with the Partnership shall be required to inquire into, or obtain any consents or other documentation as to, the authority of the General Partner to take any such action or to exercise any such rights or powers. The General Partner shall manage the Partnership affairs in a prudent and business-like manner and at all times shall act in the best interests of the Partnership in fulfillment of the purposes herein expressed. Without limiting the generality of the preceding provisions, and subject to the provisions of Section 6.5, the General Partner shall have the authority, right, and power, on behalf of and at the cost and expense of the Partnership:

 

(a)              to enter into contracts with any person or entity to provide assistance regarding, and make all decisions on behalf of the Partnership with respect to the business of the Partnership;

 

(b)              to open, maintain, and close bank accounts with such financial institutions as the General Partner may designate, to designate and change signatories on such accounts, and to draw checks and other orders for the payment of monies;

 

(c)              to invest any cash assets of the Partnership in liquid investments where there is appropriate safety of principal;

 

(d)              to submit any claims or liabilities to arbitration or reference, to settle claims and confess judgments, to prosecute, defend, and settle lawsuits, and to handle all matters with governmental agencies;

 

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(e)              to engage employees, consultants, contractors, architects, engineers, accountants, attorneys, managers, and any and all other agents and assistants, both professional and non-professional, as the General Partner may deem necessary, appropriate, or advisable in furtherance of the purposes of the Partnership, and to compensate such Persons for services rendered;

 

(f)               to maintain the assets of the Partnership in good order and repair;

 

(g)              to maintain insurance of the types and in such amounts deemed appropriate by the General Partner;

 

(h)              to collect all sums due the Partnership;

 

(i)                      to cause the preparation and filing of all Partnership tax returns, and to make all elections for the Partnership thereunder;

 

(j)               subject to the limitations set forth in Section 6.5(a) and (b), to admit substitute Partners to the Partnership in accordance with the provisions hereof;

 

(k)              to the extent that funds of the Partnership are available therefor, to pay as they become due all debts and obligations of the Partnership;

 

(1)               to establish Reserves;

 

(m)             to obtain, as needed, Commercially Reasonable Financing from third parties to fund Operations and, in connection therewith, to issue evidence of indebtedness therefor and to secure the same by mortgage, deed of trust, pledge, or other security interest;

 

(n)              take any and all other action that the General Partner may deem necessary, appropriate, or advisable in furtherance of the purposes of the Partnership and not inconsistent with this Agreement.

 

6.2 Expenses of the Partnership. The Partnership shall bear all direct costs and expenses of maintenance and operation of the Partnership and the property belonging to the Partnership. The Partnership shall employ, at the Partnership’s expense, such personnel and employees, as are approved by the General Partner or as the Management Company is authorized to employ on behalf of the Partnership.

 

6.3 Limitations on Authority and Powers of the General Partner. Without the prior consent of the Limited Partner, or except as otherwise provided for in this Agreement, the General Partner shall not:

 

(a)              admit a Person as an additional or substitute Limited Partner, except in accordance with this Agreement;

 

(b)              admit or substitute any additional General Partner(s) to the Partnership;

 

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(c)              withdraw from the Partnership or sell, assign, or otherwise transfer its interest as General Partner in the Partnership to a third party;

 

(d)              commingle Partnership funds with those of any other Person;

 

(e)              amend this Agreement;

 

(f)               except as otherwise expressly permitted by this Agreement, and as limited by the ability of the General Partner to take such action, voluntarily take any action that will cause the dissolution of the Partnership;

 

(g)              except as provided in Section 4.3, require any Partner to make an Additional Capital Contribution;

 

(h)              sell, transfer, exchange, or otherwise dispose of all or substantially all of the assets of the Partnership or the business of the Partnership by virtue of a sale of the assets thereof or interests therein.

 

6.4              Exculpation and Indemnification of the Partners.

 

(a)              Neither the General Partner, any Limited Partner, nor any of their respective officers, directors, or employees shall be liable, responsible or accountable in damages or otherwise to the Partnership or the Partners for any act or omission performed or made (i) with respect to the General Partner and its officers, directors, or employees, by any of them in the capacity as a General Partner or any other capacity in which any of them act at the request of the Partnership or otherwise, and (ii) with respect to the Limited Partners and their officers, directors, or employees, by any of them in any capacity in which any of them act at the request of the Partnership or otherwise, if, in either case, such Person shall not have been guilty of gross negligence or willful misconduct with respect to such act or omission. Without limitation of the foregoing, no Partner, its officers, directors, and employees shall be so liable, responsible or accountable for any allocation, distribution or other act or omission performed or made by them in good faith reliance on financial statements of the Partnership reported on by independent certified public accountants or for any act or omission performed or made by them in good faith reliance on advice of legal counsel. No Partner nor any of its officers, directors, or employees shall be liable, responsible or accountable in damages or otherwise to the Partnership or any other Partner for any act or omission if such Person shall have been merely negligent with respect to such act or omission.

 

(b)              The Partnership shall have the power and authority to and shall, and the General Partner is hereby directed on behalf of the Partnership to, indemnify and hold harmless, and advance and reimburse expenses related thereto to, the General Partner, the Limited Partner, and any of their partners, members, officers, directors, shareholders and employees, to the fullest extent permitted by the Act and any other applicable law; provided, however, that this indemnification shall be satisfied only out of assets of the Partnership and not out of assets of the Partners.

 

(c)            None of the Partners of the Partnership, nor any partner, member, officer, director, shareholder or employee of any Partner, shall have any personal liability on any leases,

 

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agreements, loans or other obligations of the Partnership, unless such liability is voluntarily assumed by a Partner in writing.

 

ARTICLE 7

 

Income, Losses, Distributions and Fiscal Matters

 

7.1            Distributions of Available Cash Generally. Periodically as determined by the General Partner (but not less frequently than annually), the Available Cash of the Partnership (if any) shall be distributed to the Partners as follows:

 

(a)              First: To the Partners in proportion to their Percentage Interests to the extent of their Unrecovered Contribution balances until each Limited Partner’s Unrecovered Contribution balance is equal zero; and

 

(b)              Second: All remaining amounts of Available Cash shall be distributed to the Partners, pro rata in accordance with their respective Percentage Interest.

 

7.2            Allocations. Allocations of income, gain, loss and deduction for federal, state, and local income tax purposes and for purposes of maintaining the Partners’ Capital Accounts are as stated in Exhibit B.

 

7.3            No Obligation to Restore Deficit Capital Accounts. No Partner with a deficit balance in its Capital Account shall have any obligation to the Partnership or any other Partner to restore said deficit balance. In addition, no venturer or partner in any Partner shall have any liability to the Partnership or any other Partner for any deficit balance in such venturer’s or partner’s Capital Account in the Partner in which it is a partner or venturer. Furthermore, a deficit Capital Account balance of a Partner (or a Capital Account of a partner, or venturer in a Partner) shall not be deemed to be a liability of such Partner (or of such venturer or partner in such Partner) or a Partnership asset or property.

 

7.4            No Interest on Capital Accounts. Except as otherwise provided herein, no interest will be paid on any capital contributed to the Partnership or the balance in any Partner’s Capital Account.

 

7.5            Accounting. The Partnership shall keep its accounts according to the accrual method in accordance with generally accepted accounting principles applied on a consistent basis. The accounts shall readily disclose all items which the Partners are required to take into account separately for income tax purposes.

 

7.6            Fiscal Year. The Partnership fiscal year shall be the calendar year or such other year as required by applicable federal income tax law.

 

7.7            Records. The Partnership’s books and other records, including without limitation those records required pursuant to the Limited Partnership Act, shall be kept at the principal office of the Partnership. The Limited Partner, at its own expense, shall at reasonable times during business hours have access to such books for the purpose of inspecting and copying same.

 

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The books and records shall be preserved for at least six years after the term of the Partnership ends unless otherwise provided by applicable federal or state law.

 

7.8               Bank Accounts. The Partnership shall maintain bank accounts in its name at such financial institutions as the General Partner may select.

 

7.9               Tax Matters Partner. The General Partner shall be the tax matters partner of the Partnership pursuant to Section 6231(a)(7) of the Code.

 

7.10          No Right to Distribution Upon Withdrawal. Upon withdrawal, a Limited Partner shall not have the right to a distribution of the fair market value of its interest in the Limited Partnership.

 

ARTICLE 8

 

Transferability

 

8.1 Prohibition on Transfers. Neither the General Partner nor any Limited Partner may transfer its interest in the Partnership without the prior written consent of the General Partner, which consent may be withheld for any reason in its sole discretion. Any transfer in violation of this Section 8.1 shall be null and void ab initio.

 

8.2 Conditions for Transfers. If the General Partner consents to the transfer of a Partnership interest, the Partner who desires such transfer shall arrange for its transferee to be bound by the provisions of this Agreement, by having such transferee execute two counterparts of an instrument of assignment reasonably satisfactory to the General Partner and by delivering the same to the General Partner together with any such other information that may be required by the General Partner, including, but not limited to, the name and address of the transferee, information regarding the transferee to determine whether confidentiality will be preserved, and such other information as might be required under Section 6050K of the Code and the Treasury Regulations thereunder. It is understood that the proposed transferee shall be required to pay any and all reasonable filing and recording fees, legal fees, accounting fees, and other charges and fees incurred by the Partnership and its counsel as a result of any such transfer. Each assignment or transfer shall be effective in accordance with the provisions of Section 706 of the Code; provided, however, that no attempted assignment or transfer shall be effective or recognized by the Partnership or the Partners until all the requirements of this Article VIII have been satisfied. If and when the consent of the Partners as provided for in this Article VIII is secured and the other requirements of this Article VIII are satisfied, the transferee shall become a substituted Limited Partner or General Partner thus transferred, and each Partner hereby consents to such substitution. No transfer to a minor or incompetent shall be effective in any respect.

 

8.3 Status Prior to Admission as a Substituted Partner. Unless and until any assignee, transferee, heir, or legatee is admitted to the Partnership as a substituted Partner pursuant to the terms of this Agreement, its status and rights shall be limited to the rights of an assignee of a limited partnership interest under relevant provisions of the Limited Partnership Act.

 

8.4               Admission of Substituted Partner. Upon the effectiveness of an assignment under this Article VIIII, the General Partner shall, if the Partners required under Section 8.1 consent to

 

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admit such transferee as a substituted Partner, execute, file, and record with the appropriate governmental agencies such documents (including amendments to this Agreement) as are required to accomplish the substitution of the transferee as a substituted Partner. The Partnership shall treat a Person who becomes a substituted Partner as the substituted Partner with respect to the Partnership Interest assigned from the date such assignment is effective, notwithstanding the time consumed in preparing and filing the necessary documents with governmental agencies necessary to effectuate the substitution.

 

8.5 Tax Elections with Respect to Substituted Partners. Upon the transfer of all or part of an interest of a Partner in the Partnership, at the request of the transferee of such interest, the General Partner may (but shall not be required to) cause the Partnership to elect, pursuant to Section 754 of the Code or the corresponding provisions of subsequent law, to adjust the basis of the Partnership properties as provided by Sections 734 and 743 of the Code.

 

8.6 Obligations of Substituted Partners. Any Person admitted to the Partnership as a substituted Partner shall be subject to and bound by all the provisions of this Agreement as if originally a party to this Agreement.

 

ARTICLE 9

 

Dissolution and Liquidation

 

9.1 Dissolution and Termination of the Partnership. Each Partner expressly waives any right which it might otherwise have to dissolve the Partnership except as set forth in this Section 9. 1. The Partnership shall be immediately dissolved upon:

 

(a)              the expiration of the term set forth in Section 2.5;

 

(b)              the Bankruptcy, liquidation, or withdrawal of the General Partner for any reason; or

 

(c)              the occurrence of any other circumstances which by law would require that the Partnership be dissolved.

 

Nothing contained in this Section 9.1 is intended to grant to any Partner the right to dissolve the Partnership at will, or to exonerate any Partner from liability to the Partnership and the remaining Partners if it dissolves the Partnership at will.

 

9.2 Reconstitution. In the event the Partnership is dissolved pursuant to Section 9.1, the Partnership may be reconstituted and its business continued by the consent of all Partners.

 

9.3 Death, Bankruptcy or Disability of Limited Partner. The Bankruptcy or dissolution of any Partner shall not result in the dissolution of the Partnership, but the rights of a Partner to share in the profits and losses of the Partnership and to receive distributions of Partnership funds shall, on the happening of such an event, devolve upon the Partner’s successors in interest, as the case may be, subject to this Agreement, and the Partnership shall continue as a limited partnership. The Limited Partner’s successors in interest shall be liable for

 

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