<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. )*
POWERCERV CORPORATION
- --------------------------------------------------------------------------------
(NAME OF ISSUER)
COMMON STOCK, $.01 PAR VALUE
- --------------------------------------------------------------------------------
(TITLE OF CLASS OF SECURITIES)
73931P 10 5
- --------------------------------------------------------------------------------
(CUSIP NUMBER)
STEPHEN M. WAGMAN, ESQ., POWERCERV CORPORATION,
400 N. ASHLEY STREET, TAMPA, FLORIDA 33602 (813) 226-2600
- --------------------------------------------------------------------------------
(NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON
AUTHORIZED TO RECEIVE NOTICES AND COMMUNICATIONS)
12/31/96
- --------------------------------------------------------------------------------
(DATE OF EVENT WHICH REQUIRES FILING OF THIS STATEMENT)
If the filing person has previously filed a statement on Schedule 13G
to report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(b)(3) or (4), check the following
box [ ].
Check the following box if a fee is being paid with the statement [ ].
(A fee is not required only if the reporting person: (1) has a previous
statement on file reporting beneficial ownership of more than five percent of
the class of securities described in Item 1: and (2) has filed no amendment
subsequent thereto reporting beneficial ownership of five percent or less of
such class.) (See Rule 13d-7.)
NOTE: Six copies of this statement, including all exhibits, should be
filed with the Commission. See Rule 13d-1(a) for other parties to whom copies
are to be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities,
and for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 ("Act") or otherwise subject to the liabilities of that section of
the Act but shall be subject to all other provisions of the Act (however, see
the Notes).
(continued on following pages)
(Page 1 of 6 Pages)
<PAGE> 2
CUSIP No. 73931P 10 5 SCHEDULE 13D Page 2 of 6 Pages
--------------------- -------- --------
(1) Names of Reporting Persons
S.S. or I.R.S. Identification Nos. of Above Persons
R.C.F., INC. 88-0352800
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(2) Check the Appropriate Box if a Member of a Group* (a) [ ]
(b) [ ]
---------------------------------------------------------------------
(3) SEC Use Only
---------------------------------------------------------------------
(4) SOURCE OF FUNDS*
00
---------------------------------------------------------------------
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS
IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)
[ ]
---------------------------------------------------------------------
(6) Citizenship or Place of Organization
Nevada - USA
---------------------------------------------------------------------
(7) Sole Voting Power
Number of 2,288,500
Shares --------------------------------------------------------
Beneficially (8) Shared Voting Power
Owned by -0-
Each --------------------------------------------------------
Reporting (9) Sole Dispositive Power
Person With -0-
--------------------------------------------------------
(10) Shared Dispositive Power
-0-
--------------------------------------------------------
(11) Aggregate Amount Beneficially Owned by Each Reporting Person
2,288,500
---------------------------------------------------------------------
(12) Check Box if Aggregate Amount in Row (11) Excludes Certain
Shares* [ ]
---------------------------------------------------------------------
(13) Percent of Class Represented by Amount in Row (11)
16.5%
---------------------------------------------------------------------
(14) Type of Reporting Person*
CO
---------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE> 3
CUSIP No. 73931P 10 5 SCHEDULE 13D Page 3 of 6 Pages
--------------------- -------- --------
(1) Names of Reporting Persons
S.S. or I.R.S. Identification Nos. of Above Persons
ROY E. CRIPPEN III
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(2) Check the Appropriate Box if a Member of a Group* (a) [ ]
(b) [ ]
---------------------------------------------------------------------
(3) SEC Use Only
---------------------------------------------------------------------
(4) SOURCE OF FUNDS*
00
---------------------------------------------------------------------
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS
IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)
[ ]
---------------------------------------------------------------------
(6) Citizenship or Place of Organization
USA
---------------------------------------------------------------------
(7) Sole Voting Power
Number of -0-
Shares --------------------------------------------------------
Beneficially (8) Shared Voting Power
Owned by -0-
Each --------------------------------------------------------
Reporting (9) Sole Dispositive Power
Person With 2,288,500
--------------------------------------------------------
(10) Shared Dispositive Power
--------------------------------------------------------
(11) Aggregate Amount Beneficially Owned by Each Reporting Person
2,288,500
---------------------------------------------------------------------
(12) Check Box if Aggregate Amount in Row (11) Excludes Certain
Shares* [ ]
---------------------------------------------------------------------
(13) Percent of Class Represented by Amount in Row (11)
16.5%
---------------------------------------------------------------------
(14) Type of Reporting Person*
IN
---------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE> 4
ITEM 1. SECURITY AND ISSUER.
TITLE OF SECURITIES: common stock, $.01 par value
("Common Stock") of PowerCerv
Corporation ("Issuer")
NAME AND ADDRESS OF ISSUER: PowerCerv Corporation
400 N. Ashley Street,
Suite 2700
Tampa, Florida 33602
ITEM 2. IDENTITY AND BACKGROUND.
INFORMATION WITH RESPECT TO R.C.F., INC.:
Item 2.(a) Name and State of Organization:
R.C.F., Inc., a Nevada Corporation, as general
partner of R.C.F. Company Limited Partnership
Item 2.(b) Principal Business:
Investor
Item 2.(c) Address of Principal Business:
c/o Stephen M. Rice, Esq.
Jones, Jones, Close & Brown
3773 Howard Hughes Parkway, 3rd FL. S.
Las Vegas, Nevada
Item 2.(d) Criminal Proceedings:
None
Item 2.(e) Civil Proceedings:
None
INFORMATION WITH RESPECT TO ROY E. CRIPPEN III:
Item 2.(a) Roy E. Crippen III
Item 2.(b) Occupation:
Executive Vice President and Chief Technology Officer
of PowerCerv Corporation
Item 2.(c) Business Address:
c/o PowerCerv Corporation
400 North Ashley Drive, Suite 2700 Tampa, Florida
33602
Item 2.(d) Criminal Proceedings:
None
Item 2.(e) Civil Proceedings:
None
Item 2.(f) Citizenship:
USA
Page 4 of 6 Pages
<PAGE> 5
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION. On December 31,
1996, beneficial ownership of the securities was acquired by each of R.C.F.,
Inc., as general partner and Roy E. Crippen III, as a limited partner ("RCLP")
of R.C.F. Company Limited Partnership ("RCF Ltd"), a Nevada limited partnership,
by reason of the issuance of partnership interests in RCF Ltd. to R.C.F., Inc.
and RCLP. All shares of Common Stock acquired by RCF Ltd. were originally owned
by Roy E. Crippen III, individually, and Roy E. Crippen (1995) Annuity Trust,
which shares were acquired by each prior to the Issuer's initial public offering
completed March, 1996.
ITEM 4. PURPOSE OF TRANSACTION. The shares of Common Stock were transferred
by Roy E. Crippen III and Roy E. Crippen (1995) Annuity Trust to RCF Ltd solely
for tax planning purposes. See Item 3 above.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
INFORMATION WITH RESPECT TO R.C.F., INC.:
Item 5.(a) See Items 11 and 13 of the applicable cover page.
Item 5.(b) See Items 7, 8, 9 and 10 of the applicable cover
page.
Item 5.(c) None, other than as described in Item 3.
Item 5.(d) Roy E. Crippen III, as director, officer, and sole
shareholder of R.C.F., Inc., the general partner of
RCF Ltd, has the right to receive and direct the
receipt of dividends from, and proceeds from the sale
of, the shares indicated in item 11 of the applicable
cover page. Mr. Crippen also has the right to
receive proceeds from the sale of such securities as
a limited partner of RCF Ltd. Roy E. Crippen (1995)
Annuity Trust, as limited partner of RCF Ltd, has the
right to receive proceeds relating to the sale of
less than five percent of the outstanding Common
Stock.
Item 5.(e) Not applicable.
INFORMATION WITH RESPECT TO ROY E. CRIPPEN III:
Item 5.(a) See Items 11 and 13 of the applicable cover page.
Item 5.(b) See Items 7, 8, 9 and 10 of the applicable cover
page.
Item 5.(c) None, other than as described in Item 3.
Item 5.(d) R.C.F., Inc., which is the general partner of RCF
Ltd, and is owned and controlled by Roy E. Crippen
III, has the right to receive and to direct the
receipt of dividends from, and proceeds from the sale
of, the shares indicated in item 11 of the applicable
cover page. Roy E. Crippen (1995) Annuity Trust, as
limited partner of RCF Ltd, has the right to receive
proceeds relating to the sale of less than five
percent of the outstanding Common Stock.
Item 5.(e) Not applicable.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO SECURITIES OF THE ISSUER.
See Items 3 and 5 above for a description of the limited partnership
agreement to which R.C.F., Inc. and Roy E. Crippen III are parties.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
Exhibit 1. Amended and Restated Limited Partnership Agreement of
R.C.F. Company Limited Partnership, a Nevada limited
partnership.
Page 5 of 6 Pages
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SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Date: January 10, 1997
R.C.F., Inc.
/s/ Roy E. Crippen III
----------------------------------
Signature
By: Roy E. Crippen III, President
Date: January 10, 1997
/s/ Roy E. Crippen
----------------------------------
Roy E. Crippen III
The original statement shall be signed by each person on whose behalf
the statement is filed or his authorized representative. If the statement is
signed on behalf of a person by his authorized representative (other than an
executive officer or general partner of this filing person), evidence of the
representative's authority to sign on behalf of such person shall be filed with
the statement, provided, however, that a power of attorney for this purpose
which is already on file with the Commission may be incorporated by reference.
The name and any title of each person who signs the statement shall be typed or
printed beneath his signature.
ATTENTION: INTENTIONAL MISSTATEMENTS OR OMISSIONS OF FACT CONSTITUTE
FEDERAL CRIMINAL VIOLATIONS (SEE 18 U.S.C. 1001).
Page 6 of 6 Pages
<PAGE> 7
EXHIBIT 1
AMENDED AND RESTATED
LIMITED PARTNERSHIP AGREEMENT
OF
R.C.F. COMPANY LIMITED PARTNERSHIP,
A NEVADA LIMITED PARTNERSHIP
<PAGE> 8
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page No.
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<S> <C>
ARTICLE I
FORM AND INTERPRETATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -1-
Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -1-
Captions and Certain Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -5-
Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -5-
Limitation of Grant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -5-
ARTICLE II
ORGANIZATION OF PARTNERSHIP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -5-
Formation, Name, Office and Registered Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -5-
Purpose of Partnership . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -6-
Term of Partnership . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -7-
Authorized Acts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -7-
Co-Ownership of Partnership Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -8-
Representations and Warranties of the Limited Partners . . . . . . . . . . . . . . . . . . . . . . . . . . . -8-
ARTICLE III
PARTNERSHIP CAPITAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -10-
Capital Contributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -10-
Capital Account . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -11-
Expenses Paid by Partners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -12-
Loans by Partners; Restrictions on Borrowing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -12-
ARTICLE IV
PROFITS AND LOSSES AND TAXABLE INCOME AND TAXABLE LOSS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -13-
Allocations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -13-
ARTICLE V
DISTRIBUTIONS, WITHDRAWALS AND LOANS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -14-
Distributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -14-
Limitation on Distributions to Partners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -16-
ARTICLE VI
AUTHORITY, DUTIES, AND LIABILITIES OF PARTNERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -16-
Duties of Managing General Partner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -16-
Managing General Partner's Fees and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -17-
Authority of Managing General Partner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -17-
</TABLE>
<PAGE> 9
<TABLE>
<S> <C>
Special Limitation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -19-
Dealing with Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -19-
Indemnification of General Partner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -20-
Liability of Limited Partners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -20-
Authority of Limited Partners and Non-Managing General Partners . . . . . . . . . . . . . . . . . . . . . -20-
ARTICLE VII
TRANSFER OF PARTNERSHIP INTERESTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -21-
Limited Partners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -21-
General Partner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -21-
Restriction on Transfer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -21-
Admission of Substitute Partner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -22-
Rights of Partner After Assignment and Substitution . . . . . . . . . . . . . . . . . . . . . . . . . . . -22-
Allocations and Distributions After Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -23-
ARTICLE VIII
RETIREMENT, WITHDRAWAL, OR REMOVAL OF PARTNERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -23-
Withdrawal of Limited Partner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -23-
Retirement, Removal, or Withdrawal of Managing General Partner . . . . . . . . . . . . . . . . . . . . . . -24-
Retirement of Limited Partner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -24-
Rights of Partner After Retirement, Removal, or Withdrawal . . . . . . . . . . . . . . . . . . . . . . . . -25-
ARTICLE IX
DISSOLUTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -25-
Events of Dissolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -25-
Winding-Up and Distributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -25-
Distribution of Liquidation Proceeds and Assets and Allocation of Gains and Losses . . . . . . . . . . . . -26-
Limitation of Liability of Partners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -26-
Waiver of Right of Partition of Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -27-
ARTICLE X
ACCOUNTING YEAR, BOOKS, RECORDS, AND REPORTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -27-
Books and Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -27-
Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -27-
Bank Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -27-
Tax Elections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -28-
Accounting Method and Fiscal Year . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -28-
</TABLE>
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<TABLE>
<S> <C>
ARTICLE XI
GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -28-
Power of Attorney . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -28-
Partnership Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -29-
Conveyances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -29-
Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -29-
Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -29-
Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -30-
Binding Effect; Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -30-
Choice of Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -30-
Complete Agreement; Modification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -30-
Evidence of Partnership Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -31-
Tax Matters Partner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -31-
Gender and Number . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -31-
Title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -31-
</TABLE>
-iii-
<PAGE> 11
AMENDED AND RESTATED
R.C.F. COMPANY LIMITED PARTNERSHIP AGREEMENT
This Amended and Restated Limited Partnership Agreement ("Agreement")
is entered into pursuant to the provisions of the Nevada Uniform Limited
Partnership Act, dated as of December 26, 1996, by and among R.C.F., Inc., a
Nevada corporation (as the "Managing General Partner"), Roy E. Crippen III
("Crippen"), and Roy E. Crippen III, as Trustee of the Roy Edward Crippen III
(1995) Annuity Trust ("Crippen Annuity Trust"), (each as a "Limited Partner").
The General Partner and the Limited Partners wish to amend and restate the
Agreement of Limited Partnership of R.C.F. Company Limited Partnership on the
following terms and conditions:
ARTICLE I
FORM AND INTERPRETATION
1. Definitions. The following capitalized terms, as used in this
Agreement and in the attached exhibits, which constitute a part of this
Agreement, have the meanings ascribed to them below and include the plural as
well as the singular number:
"Act" means the Nevada Uniform Limited Partnership Act, as amended, or
any subsequent Nevada law concerning partnerships that are enacted in
substitution for the Act.
"Affiliate" of a Partner means (1) another Partner of the Partnership;
(2) a legal or personal representative of any Partner; (3) the Partner's lineal
descendants and spouse (other than a spouse who is legally separated from the
Partner under a decree of divorce or separate maintenance); (4) a trustee of a
trust for the benefit of any Person referred to in clause (1), (2) or (3); (5)
a Person, other than an individual, of which 80% or more of the voting or
equity interests is owned directly or indirectly by a Partner and/or one or
more of the Persons referred to in clauses (1) through (4); (6) a Person owning
80% or more of the voting or equity interests of a Partner that is not an
individual; or (7) a Person other than an individual, 80% or more of the voting
or equity interests of which is owned by the same Person that owns 80% or more
of the voting or equity interests of a Partner that is not an individual.
"Agreement" means this Limited Partnership Agreement as originally
executed and as subsequently amended or supplemented from time to time in
accordance with section 54.
"Assignment" means a sale, exchange, gift, pledge, transfer or
disposition of any kind whatsoever and, in the case of a Person that is not an
individual, it includes the sale, exchange, pledge, transfer or disposition of
a majority of either voting control or the equity interests in such Person.
<PAGE> 12
"Bankruptcy" means taking advantage of any bankruptcy or insolvency
act (including the Bankruptcy Reform Act of 1978 or similar law, and also any
proceeding under state or local insolvency or debtor relief laws), or a final
adjudication of insolvency or an assignment of a major portion of a Person's
assets for the benefit of creditors.
"Capital Account" has the meaning set forth in section 12.
"Capital Contribution" means the total amount of cash, and net fair
market value of securities and other property contributed by a Partner to the
equity of the Partnership, or agreed to be contributed by a Partner to the
equity of the Partnership, pursuant to section 11(a), and reduced by any return
of capital to the Partner within the meaning of section 11(c). Any reference
in this Agreement to the Capital Contribution of either a Partner or an
assignee of a Partner shall include the Capital Contribution of any prior
Partner to whose Partnership Interest the then existing Partner or assignee
succeeded.
"Cash Flow" means the excess of cash derived by the Partnership from
all sources, including from capital contributions, loans, sales of securities
and other activities, (but excluding cash derived from the winding-up and
liquidation of the Partnership pursuant to section 37) over the sum of all cash
disbursements, including repayments of loans from Partners, loans to Partners
for the Partnership, and distributions to Partners pursuant to section 16(a) or
(b) (but excluding disbursements pursuant to section 16(c), plus a reasonable
allowance for reserves for repairs, investments in Property (including
Marketable Securities), replacements, contingencies and anticipated obligations
(including debt service, capital improvements and replacements to the extent
not funded by reserves) as reasonably determined by the Managing General
Partner. Notwithstanding the preceding sentence, in determining the reasonable
allowance for reserves, the Managing General Partner shall reduce such
allowance to the extent necessary to ensure that annual distributions of Cash
Flow to each Partner will be in an amount at least equal to the annual income
tax liability (exclusive of income tax liability resulting from a transaction
pursuant to section 16(b) or (c)) of each such Partner (determined assuming
that the maximum possible income tax rate is applicable) resulting from the
allocation to the Partner of his share of the Partnership's Taxable Income and
Taxable Loss. If the Partners elect, pursuant to Section 761 of the Code, for
the Partnership not to be subject to Subchapter K of Chapter 1, then Cash Flow
shall be calculated separately for each Partner and shall not be subject to a
holdback for a reserve on the theory that each Partner owns the assets of the
Partnership contributed by such Person directly. For this purpose, if a
Partner has contributed Marketable Securities to the Partnership, such
Marketable Securities (including stock dividends thereon, stock splits or other
recapitalizations) shall be allocated to the contributing Partner (or such
Partner's assigns).
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"Code" means the Internal Revenue Code of 1986, as amended, or any
subsequent federal law concerning income taxes that is enacted in substitution
for the Code.
"General Partner" means any Person admitted as a general partner in
accordance with this Agreement.
"General Partnership Interest" means the Partnership Interest of a
General Partner, in his capacity as a General Partner.
"Limited Partner" means any Person admitted as a limited partner in
accordance with this Agreement.
"Limited Partnership Interest" means the Partnership Interest of a
Limited Partner, in the capacity as a Limited Partner.
"Majority in Interest" when used in regard to the degree of consent,
approval or agreement required among the Partners, means Partners whose
aggregate Percentage Interests constitute over 50% of the total aggregate
Percentage Interests then outstanding.
"Managing General Partner" means the Person designated in this
Agreement as the general partner responsible for management of the affairs of
the Partnership, including all voting rights with respect to, and control over,
Marketable Securities, and thereafter any Person which becomes a general
partner responsible for management of the affairs of the Partnership pursuant
to this Agreement, in the Person's capacity as a managing general partner of
the Partnership. Initially, the Managing General Partner shall be R.C.F., Inc.
"Marketable Securities" means securities, including stock, which are
traded on an established securities market, whether or not registered under the
Securities Act of 1933. The term shall also include the shares of PowerCerv
Corporation and any successor thereto.
"Partner" means each Person which is a General Partner or a Limited
Partner.
"Partnership" means the R.C.F. COMPANY LIMITED PARTNERSHIP, the
limited partnership formed in accordance with the Act pursuant to this
Agreement.
"Partnership Interest" includes only a Partner's Capital Contribution
and right to receive his Percentage Interest and excludes Partnership Rights.
"Partnership Rights" excludes the Partnership Interest of a Partner,
and includes, in addition to other rights provided in this Agreement, the
rights provided to
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<PAGE> 14
him by the Act except to the extent such rights are inconsistent with the
provisions of this Agreement.
"Percentage Interest" means a Partner's percentage share (as initially
stated opposite such Partner's name on Exhibit A as amended from time to time),
of the Profits and Losses, Taxable Income or Taxable Loss, cash and other
distributions and liquidation proceeds of the Partnership all subject to and
interpreted in accordance with the terms of this Agreement. The Percentage
Interests of Partners shall be proportionate to the Capital Accounts of the
Partnership at all times so that, for example, if a Partner's Capital Account
is 100 and the aggregate of all Capital Accounts is 1000, the Partner's
Percentage Interest in the Partnership is 10%. In the event of a change among
the Partners in the Percentage Interests in the Partnership during the year,
the Partnership shall use a closing-of-the-books method with respect to such
change or changes in Percentage Interests in computing a Partner's share of
Profits and Losses, Taxable Income and Taxable Losses, and entitlement to
distributions during such year.
"Person" means any individual and any general or limited partnership,
corporation, estate, joint venture, trust, business trust, cooperative,
association or other organization.
"Profits and Losses" means the annual net income or loss of the
Partnership determined on a generally accepted accounting principles basis, as
disclosed on the annual financial statements of the Partnership. If the
Partners have elected for the Partnership to be excluded from the application
of Subchapter K of Chapter 1 of the Code, the provisions relating to Profits
and Losses shall be of no effect during such period at the Partnership level,
but will be separately computed for each Partner.
"Property" means any real, personal, tangible or intangible property
contributed by a Partner to the equity of the Partnership or otherwise acquired
by the Partnership.
"Pro Rata" means in the proportion that the Percentage Interest of
each Partner bears to the total Percentage Interests of all the Partners.
"Retirement" means the death, Bankruptcy, adjudication of incompetency
as determined by a court of appropriate jurisdiction, dissolution and
liquidation or termination of existence, merger or consolidation (except as
provided in sections 33 and 34) of a Partner, or the sale, lease or other
disposition of all or substantially all the property of a Partner (except as
provided in sections 33 and 34).
"Taxable Income or Taxable Loss" means the net income or loss of the
Partnership for federal income tax purposes, as determined at the close of the
Partnership's fiscal year by the accountants employed by the Partnership to
prepare its income tax returns. If the Partners have elected for the
Partnership to be excluded
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from the application of Subchapter K of Chapter 1 of the Code, the provision
shall be of no effect for federal income tax purposes during such period, but
will be separately computed for each Partner.
2. Captions and Certain Terms. The titles and captions preceding
the text of the articles and sections of this Agreement are solely for
convenience of reference and neither constitute a part of this Agreement nor
affect its meaning, interpretation, or effect. The words "hereby," "herein,"
"hereof," "hereto," "hereunder," and terms of similar import refer to this
Agreement as a whole and not to any particular article, section, subsection or
other part of this Agreement.
3. Severability. If any article, section or other provision of
this Agreement, or its application, is held to be invalid, illegal or
unenforceable in any respect or for any reason, the remainder of this Agreement
and the application of such article, section or other provision to a person or
circumstance with respect to which it is valid, legal and enforceable is not
affected.
4. Limitation of Grant. Nothing in this Agreement, whether
express or implied, is intended or may be construed to confer upon, or to grant
to, any creditor or any other Person (other than the Partners and their legal
and personal representatives, heirs, successors and permitted assignees) any
right, remedy or claim under or because of this Agreement or any covenant,
condition or stipulation of it.
ARTICLE II
ORGANIZATION OF PARTNERSHIP
5. A. Formation, Name, Office and Registered Agent. The
Partners hereto do hereby amend and restate a partnership under he provisions
of the Act, and the rights and liabilities of the Partners shall be as provided
in the Act except as herein otherwise expressly provided. The name of the
Partnership is "R.C.F. COMPANY LIMITED PARTNERSHIP." The recordkeeping office
of the Partnership is located at c/o Stephen M. Rice, Jones, Jones, Close &
Brown, Chartered, 300 South Fourth Street, Las Vegas, Nevada 81901-6026. The
principal business office of the Partnership is located at 300 South Fourth
Street, Las Vegas, Nevada 81901-6026. The Managing General Partner may change
the name of the Partnership or the location of its principal business office at
any time and from time to time by giving written notice of such change to each
Partner. The registered agent and registered office of the Partnership is
Stephen M. Rice, Jones, Jones, Close & Brown, Chartered, 300 South Fourth
Street, Las Vegas, Nevada 81901-6026
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<PAGE> 16
B. General and Limited Partners. R.C.F., Inc. is the
initial Managing General Partner of the Partnership. Crippen and the Crippen
Annuity Trust are the initial Limited Partners of the Partnership.
C. Certificate of Limited Partnership. In connection
with the execution of this Agreement, the Managing General Partner has signed
or shall sign a certificate of limited partnership, pursuant to the Act. The
Managing General Partner has signed or shall cause the certificate to be filed
with the Nevada Secretary of State. The Managing General Partner shall amend
the certificate when required under this Agreement and shall execute the
amended certificate as required by the Act.
6. Purpose of Partnership.
(a) Except as provided in 6(c) below, the
purposes of the Partnership are to:
(i) invest in, own, sell, acquire,
manage and exercise the voting
rights associated with Marketable
Securities, including securities
issued by PowerCerv Corporation,
(ii) after approval by a Majority in
Interest, acquire, hold, sell, own,
improve, develop or lease other
types of property in addition to
Marketable Securities, and
(iii) engage in any other lawful activity
for profit approved by an
affirmative vote of a Majority in
Interest.
(b) Notwithstanding Section 6(a), unless
unanimously approved by the Partners, the
Partnership shall not engage in any
activity(ies) which would result, based upon
opinion of tax counsel, in the
characterization of the Partnership as an
investment company as that term is used in
Section 721(b) or any successor provision of
the Code.
(c) Subsequent to the date of commencement of
existence of the Partnership, the Partners
may make the election set forth in Treas.
Reg. Section 1.761-2 to have the Partnership
excluded from the application of Subchapter K
of Chapter 1 of the Code until such time as a
Majority in Interest determine to have the
Partnership engage in an activity other than
investing in PowerCerv Corporation and other
intangible assets. Until such time as the
Partnership engages in other than investment
activities, and if the aforementioned
election is made, it is the intention of the
Partners that the
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<PAGE> 17
Partnership shall be only for investment
purposes and shall not actively conduct
business. It is the intention of the Partners
that the Partnership shall have legal title
to, and ownership of, Marketable Securities,
so as to effectuate the co-ownership of the
Marketable Securities by the Partners. As is
evidenced by various provisions of this
Agreement, each Partner reserves the right
separately to take or dispose of their shares
or interests in the Marketable Securities and
the other assets contributed by such Partner
to the Partnership. Further, during the
period Subchapter K does not apply to the
Partnership, this Agreement is to be
interpreted in a manner that will give effect
to such election.
7. Term of Partnership. The term of the Partnership shall
continue until the earlier of (i) December 31, 2037, or (ii) the death or
adjudication of incompetency as determined by a court of appropriate
jurisdiction of Roy E. Crippen III, unless the Partnership is earlier
dissolved and terminated under this Agreement.
8. Authorized Acts. In furtherance of its purposes, but subject
to every other provision of this Agreement, the Partnership, through, and only
through, the actions of the Managing General Partner acting alone, is
authorized to do the following:
(a) acquire by purchase, lease or otherwise, any
real or personal, tangible or intangible property that may be necessary,
convenient or incidental to the accomplishment of the purposes of the
Partnership;
(b) construct, operate, maintain, finance,
improve, own, sell, convey, exchange, assign, mortgage or lease any property
(or a part thereof) as may be necessary, convenient or incidental to the
accomplishment of the purposes of the Partnership;
(c) borrow money and issue evidences of
indebtedness in furtherance of any purpose of the Partnership and secure the
same by a mortgage, pledge, security interest or other liens on the property,
any part thereof, any interest therein or on any improvements thereto;
(d) prepay, in whole or in part, refinance,
increase, renew, modify or extend any indebtedness of the Partnership and, in
connection therewith, extend, renew or modify any mortgage, pledge, security
interest or other lien affecting any property;
(e) invest and reinvest the assets of the
Partnership in, and purchase, acquire, hold, sell, transfer and exchange
securities of all kinds, including Marketable Securities;
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<PAGE> 18
(f) lend money to Partners;
(g) exercise the voting rights associated with
property owned by the Partnership; and
(h) enter into any activity and perform and carry
out any contract in connection with, or necessary or incidental to, the
accomplishment of the purposes of the Partnership.
9. Co-Ownership of Partnership Interests. Any consent required
by a Partner shall require the action or vote of each Person (or in such other
manner as such Persons have designated in writing to the Partnership) having an
interest in such Partnership Interest, with a majority approval needed for
consent. On the death of a co-owner of a Partnership Interest held in either
joint tenancy with right of survivorship or tenancy by the entirety, the
Partnership Interest is owned solely by the survivor as a Partner, and not as
an assignee. The Partnership need not (although it may) recognize the death of
a co-owner of a Partnership Interest until the Managing General Partner
receives notice of the death. A co-owner of a Partnership Interest may sever
the tenancy by giving to the Managing General Partner notice to that effect,
and signed by the co-owner requesting the severance in the case of a joint
tenancy, and by both co-owners in the case of a tenancy by the entirety. Upon
receipt of the notice and the certificate evidencing the Partnership Interest
owned by the co-owners, the Managing General Partner shall cause the
Partnership Interest to be allocated as directed by the co-owners and shall
indicate on the Partnership records such allocation. In absence of joint
direction, the interests shall be allocated between the owners as the severed
ownership interests would be valued for federal estate tax purposes.
10. Representations and Warranties of the Limited Partners. As a
condition to becoming a Limited Partner of the Partnership, each Limited
Partner represents, warrants, and covenants to each General Partner and the
Partnership as follows:
(a) He will not assign, sell, mortgage, pledge,
or otherwise transfer or encumber any of his rights under this Agreement except
as expressly permitted under this Agreement and applicable laws;
(b) He was granted full and unrestricted access
to the Partnership's business premises, offices and properties and its
business, partnership and financial books and records as he required, and was
permitted to examine the foregoing, to question the General Partners, and to
make all other investigations that he considered appropriate to determine or
verify the business or condition (financial or otherwise) of the Partnership
and to consummate the transactions contemplated by this Agreement;
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<PAGE> 19
(c) The Partnership furnished him all additional
information concerning the Partnership's business and affairs that he
requested;
(d) He was permitted to ask questions of, and to
receive answers from, the General Partners concerning the terms and conditions
of an investment in a Limited Partnership Interest, and to obtain all
additional information he considered necessary to verify the accuracy of the
information received by him from the General Partner, and he understands the
risks associated with an investment in the Partnership and that such an
investment is highly speculative;
(e) Because of his considerable knowledge and
experience in financial and business matters in general and securities
investments in particular, he is able to evaluate the merits, risks, and other
factors bearing on the suitability of a Limited Partnership Interest as an
investment;
(f) His income and net worth are such that he is
not now, and does not contemplate being, required to dispose of any investment
in the Partnership to satisfy any existing or expected obligation, and he is
otherwise fully able to bear the economic risks of his proposed investment in
the Partnership, including the risk of losing all or any part of his investment
in the Partnership and the probable inability to sell, transfer, or pledge, or
otherwise dispose of an investment in the Partnership for an indefinite period;
(g) He is acquiring a Limited Partnership
Interest solely for his own account, as principal, for investment purposes and
not with a view to or for resale in connection with any distribution or
underwriting of any Partnership Interests;
(h) He understands that the Limited Partnership
Interest that he will purchase has not been and will not be registered under
either the Securities Act of 1933 or any state securities law, that he must
hold the Limited Partnership Interest indefinitely unless the Partnership
Interests are subsequently registered under those laws or transferred in
reliance on advice of counsel satisfactory to the Partnership that registration
under those laws is not required, and that stop-transfer instructions will be
noted in the appropriate records of the Partnership;
(i) He understands that the document evidencing a
Limited Partnership Interest acquired by him will bear the following legend:
These securities have not been registered under either the
Securities Act of 1933 or any state securities law and were
acquired pursuant to an investment representation by the
record owner. These securities are not transferable absent
either registration under the Act and every applicable state
securities law or advice of counsel satisfactory to the
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<PAGE> 20
Partnership that registration in not required. Additionally, these
securities are subject to certain transfer restrictions set forth in
the Limited Partnership Agreement of the Partnership. Reference may
be made to the Limited Partnership Agreement for the details of those
restrictions.
(j) He understands that a legend substantially
identical to the one described above will be placed on every new document
issued upon a transfer of a Limited Partnership Interest;
(k) He shall not sell, transfer, pledge, or
otherwise dispose of any part of his Limited Partnership Interest, unless the
Partnership Interests are registered under the Securities Act of 1933 and under
every applicable state securities law or unless the Partnership is furnished
with advice of counsel satisfactory to it that registration under those laws is
not required; and
(l) He understands that the Partnership does not
file periodic reports with the Securities and Exchange Commission pursuant to
the Securities Exchange Act of 1934.
ARTICLE III
PARTNERSHIP CAPITAL
11. Capital Contributions.
(a) Upon executing this Agreement, each Partner
shall make or has made a Capital Contribution in the amount and of the type,
and initially shall have a Percentage Interest equal to the percentage, set
forth opposite his name on EXHIBIT A. Each Partner's Percentage Interest
initially shall be proportionate to the number of shares of common stock of
PowerCerv Corporation contributed by such Partner to the capital of the
Partnership as such number of shares bears to the total number of such shares
received by the Partnership from all Partners. Partners may make (but Limited
Partners are not required to make) additional Capital Contributions at such
time and in such amount as they in their sole discretion shall determine but
only if the Managing General Partner consents to such additional Capital
Contributions. Upon the assignment of any Partnership Interest, the making of
an additional Capital Contribution or any return of a Capital Contribution, or
any substitution of a Partner, EXHIBIT A shall be amended to accurately reflect
the name, address, Capital Contribution and Percentage Interest of each
Partner.
(b) Notwithstanding (a) above, no Capital
Contributions shall be made or permitted by any Partner which would result,
directly or indirectly, in the
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Partnership being treated as an investment company under section 721(b) of the
Code, and any such attempted Capital Contribution shall be void ab initio. The
Managing General Partner shall withhold its consent to the making of an
additional Capital Contribution, unless it has satisfied itself (by seeking
advice of legal counsel or otherwise) that the making of the additional Capital
Contribution will not result, directly or indirectly, in the Partnership being
treated as an investment company under section 721(b) of the Code.
(c) A Partner shall not receive from the Managing
General Partner or out of Partnership Property, and the Managing General
Partner and the Partnership shall not return to a Partner, any part of his
Capital Contribution, except as set forth in Articles V, VIII and IX of this
Agreement and such distribution is determined to be a return of a Partner's
Capital Contribution, and then only if all liabilities of the Partnership,
except liabilities to the Partners on account of their Capital Contributions,
have been paid or there remains property of the Partnership sufficient to pay
them. The Partnership shall not pay interest on Capital Contributions, and, a
Partner may demand and receive only cash in return for his Capital
Contribution, except to the extent provided for in Articles V and IX of this
Agreement or unless the Liquidator (as defined in section 37) decides to
distribute Partnership property in kind upon the dissolution, winding-up, and
termination of the Partnership, or unless the distribution of property to a
Partner is unanimously approved by the Partners. Each Partner, by signing this
Agreement or a counterpart of it, consents to all distributions authorized by
this Agreement and releases all other Partners from all liability to both him
and the Partnership for all distributions made in accordance with this
Agreement.
12. Capital Account.
(a) The Managing General Partner shall establish
and maintain a Capital Account for each Partner in the Partnership's books of
account. Capital Accounts shall be maintained and adjusted in accordance with
generally accepted accounting principles. A Limited Partner shall not be
obligated to restore a deficit balance in its Capital Account, except to the
extent required by the Act. Consistent with these capital account maintenance
rules, the Managing General Partner shall credit to each Partner's Capital
Account the amounts of the Partner's Capital Contributions and any Profits
allocated to the Partner. The Managing General Partner shall charge to or
deduct from each Partner's Capital Account the amounts of all distributions (in
cash or other property) or the Partner and any Losses allocated to the Partner.
If any interest in the Partnership is transferred in accordance with the terms
of this Agreement, the transferee shall succeed to the Capital Account of the
transferror to the extent it relates to the transferred interest.
(b) The provisions of this section and the other
provisions of this Agreement pertaining to the maintenance of Capital Accounts
are intended to comply
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with Treasury Regulation Section 1.704-1(b) (or any successor provision
thereto), and shall be interpreted and applied in a manner consistent with such
Regulations. In the event that Managing General Partner determines that it is
prudent to modify the manner in which the Capital Accounts are computed in
order to comply with such Regulations, provided that it is not likely to have a
material effect on the amounts distributable to any Partner without such
Partner's consent and upon receipt of an opinion of tax counsel to the
Partnership concluding that such modification will be given effect for federal
income tax purposes, the Managing General Partner may make such modification.
(c) The Managing General Partner shall revalue
the Partnership's Property (based on its fair market value as of the moment
immediately preceding the relevant event) and shall adjust Capital Accounts to
take into account any resulting Profit or Loss (determined as if the
Partnership sold all its Property for cash equal to the Property's fair market
value) upon the occurrence of either of the following events: (1) the making
by any Partner of any non-Pro Rata additional Capital Contribution, (2) the
partial or complete withdrawal of a Partner's Partnership Interest, or (3) the
admission of a Partner.
13. Expenses Paid by Partners. Any Partnership expense reasonably
paid by any Partner on behalf of the Partnership is an indebtedness of the
Partnership to the Partner and does not increase the Partner's Partnership
Interest or Percentage Interest. The Partnership shall reimburse the Partner
as soon as practicable and may pay interest on the indebtedness.
14. Loans by Partners; Restrictions on Borrowing. The Managing
General Partner may borrow money on behalf of the Partnership from any Partner
in such amounts and for such purposes as it considers necessary, convenient or
incidental to the accomplishment of the purposes of the Partnership. Each loan
to the Partnership by a Partner (excluding reimbursable expenses) shall be
evidenced by a promissory note or similar instrument of the Partnership, may be
secured by a lien on the Property, may bear interest at a rate determined by
agreement between such Partner and the Managing General Partner and may be
subject to such other terms and conditions as are agreed to by such Partner and
the Managing General Partner. The Partnership may prepay each loan from a
Partner in whole or in part, at any time and from time to time, without premium
or penalty. The Managing General Partner may not borrow money from persons
other than Partners or pledge Partnership assets without the express written
consent of the non-managing General Partner.
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ARTICLE IV
PROFITS AND LOSSES AND TAXABLE INCOME AND TAXABLE LOSS
15. Allocations.
(a) Allocation of Profits and Losses.
(i) Profits and Losses of the
Partnership shall be determined for each fiscal year of the Partnership in
accordance with the cash method of accounting, with such exceptions thereto as
are set forth in this Agreement, and otherwise in accordance with generally
accepted accounting principles applied in a consistent manner.
(ii) Except as otherwise provided, the
Partnership's Losses, if any, arising in a fiscal year shall be allocated among
the Partners as follows:
(1) FIRST: To the extent of the
aggregate positive Capital Account balances of the Partners as of the end of
the fiscal year, Pro Rata to the Partners taking into account any changes in
Partnership Percentage Interests during the fiscal year.
(2) SECOND: Pro Rata, to the
General Partners.
(iii) Profits arising in a fiscal year
shall be allocated among the Partners as follows:
(1) FIRST: To the General Partners
until Profits allocated to the General Partners during the term of the
Partnership pursuant to this Section 15(a)(ii)(1) equal Losses allocated to the
General Partners during the term of the Partnership pursuant to Section
15(a)(ii)(2) then
(2) SECOND: To the Partners Pro
Rata taking into account any changes in Partnership Percentage Interests during
the fiscal year.
(b) Allocation of Taxable Income and Taxable
Loss.
(i) Except as otherwise provided in this
section 15(b), allocations of tax items among the Partners shall be consistent
with corresponding book (Profits and Losses) items (if any). For tax purposes,
Profits and Losses, or any item thereof, shall be appropriately adjusted to
reflect Taxable Income and Taxable Loss, or any item thereof, as determined
under the Code and shall be allocated among the Partners in such a manner as to
comply with the provisions of the Code and
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<PAGE> 24
Regulations thereunder (including, if necessary, the "minimum gain chargeback
provisions" of the Regulations under Section 704 of the Code). For example,
any gain or loss recognized by the Partnership with respect to property
contributed to the Partnership by a Partner shall be shared among the Partners
so as to take account of the variation, if any, between the basis of the
property to the Partnership and its fair market value at the time of
contribution or revaluation, whichever is applicable, so as to comply with the
requirements of Section 704 of the Code. Thus, for example, if a Partner
contributes Property to the Partnership whose agreed fair market value exceeds
its adjusted basis in the hands of the contributing Partner ("built-in gain"),
and there have been no events giving rise to a revaluation, built-in gain with
respect to such contributed Property shall first be allocated to such
contributing Partner when the Partnership recognizes gain upon a disposition of
such contributed Property, but not in an amount in excess of such built-in
gain; the remaining balance of such recognized gain, if any, shall be allocated
among the Partners as set forth herein. The allocation of built-in gain to a
contributing Partner shall not increase such Partner's Capital Account, because
such gain was already taken into account when the built-in gain property was
contributed to the Partnership. A Partner who contributes property other than
cash shall provide the Managing General Partner with information necessary to
verify the contributing Partner's adjusted tax basis in the items of property
contributed by him to the Partnership.
(ii) Generally, except as provided in
section 15(b)(i), Taxable Income and Taxable Loss (and each such income and
loss item) shall be allocated Pro Rata among the Partners. In the event,
however, that non-Pro Rata distributions of property are made to a Partner or
the net proceeds from the sale of property are distributed non-Pro Rata to a
Partner, Taxable Income and Taxable Loss derived from such distributions or
sales shall be allocated 100% to such Partner, subject only to such
modifications as are necessary to comply with Section 704 of the Code. In
addition, no allocations of Taxable Loss shall be made to a Limited Partner
that would create a deficit balance in the Limited Partner's Capital Account.
ARTICLE V
DISTRIBUTIONS, WITHDRAWALS AND LOANS
16. Distributions.
(a) Cash Flow Distributions. Cash Flow shall be
distributed Pro Rata among the Partners.
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<PAGE> 25
(b) Partial or Complete Withdrawal by a Partner
From the Partnership.
(i) In the event of a partial or
complete withdrawal of a Partner from the Partnership pursuant to Article VIII,
the Managing General Partner shall, as promptly as is reasonably possible,
distribute to the Partner any assets then owned by the Partnership that were
previously contributed by such Partner to the Partnership but this distribution
shall be limited to the extent it would cause the Capital Account of such
Partner to be negative. In addition to the preceding amounts, if the Partner
has a positive Capital Account balance, then the Partnership shall distribute
to the Partner his Pro Rata share of the Marketable Securities of PowerCerv
Corporation if such shares were not contributed by other Partners, cash and
other readily divisible assets of the Partnership. The withdrawing Partner
shall also be entitled to receive cash equal in value to his Pro Rata share of
the fair market value (as reasonably determined by the Managing General
Partner) of any non-readily divisible assets owned by the Partnership. The
Managing General Partner shall, as promptly as possible, distribute this
additional amount of cash, if any, to the withdrawing Partner. Cash
distributions to the withdrawing Partner shall be reduced by such Partner's Pro
Rata share of the liabilities of the Partnership and by any expenses incurred
by the Partnership with respect to the withdrawal of the Partner.
(ii) A Partner may request that all or a
portion of the Marketable Securities subject to the requested withdrawal be
sold by the Partnership and the net proceeds (after selling and other expenses)
distributed as directed by him. In the event that the Managing General Partner
is unable or unwilling to sell these Marketable Securities, it shall distribute
them to the Partner, unless it is notified by the Partner to cancel the
withdrawal.
(iii) The Managing General Partner shall not
be required to distribute to the requesting Partner any assets that the
Partnership is legally restricted or prohibited from distributing to the
Partner, unless steps can be taken to remove the restriction or prohibition; in
which case the requesting Partner shall be charged with the expense of removing
such restriction or prohibition. Any distribution hereunder shall also be
subject to the limitations set forth in sections 11(c) and 17, respectively.
(c) Liquidating Distributions. The net proceeds
from liquidation of the Partnership's assets pursuant to its dissolution,
winding-up, and termination shall be distributed, and all Profits and Losses
resulting from the liquidation of the Partnership Property shall be allocated,
among the Partners in the proportions and orders of priority specified in this
section 16(c).
(i) The Liquidator shall distribute the
net proceeds from liquidation of the Partnership's assets as follows:
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(1) FIRST: To pay all the
liabilities of the Partnership that are then due and payable, except for both
Capital Contributions of Partners and liabilities to the Partners, in the order
of priority required by Nevada law; then
(2) SECOND: To establish any
reasonable reserve that the Liquidator may determine is required for unpaid,
future, or contingent liabilities or obligations of the Partnership; then
(3) THIRD: To pay all liabilities
of the Partnership to the Partners; Pro Rata according to the amounts of their
respective liabilities; then
(4) FOURTH: To the Partners to the
extent of any positive balances in their Capital Accounts, Pro Rata according
to the amounts of their respective positive balances; then
(5) FIFTH: Any remaining net
proceeds shall be distributed Pro Rata among the Partners.
(ii) Any Profits and Losses and Taxable
Income and Taxable Loss resulting from the disposition of the Partnership's
assets in the process of liquidation shall be allocated among the Partners in
the manner provided in section 15. Any Property distributed in kind in the
liquidation shall be valued and treated as if the Property were sold and the
cash proceeds were distributed. The Profits and Losses arising from the
constructive sale of the Property described in the preceding sentence shall be
allocated among the Partners in the manner provided in section 15.
17. Limitation on Distributions to Partners. A Partner may
receive distributions from the Partnership only to the extent the Partnership's
total assets exceed its total liabilities, other than liabilities to the
Partners on account of their Capital Contributions.
ARTICLE VI
AUTHORITY, DUTIES, AND LIABILITIES OF PARTNERS
18. Duties of Managing General Partner. Except as provided in
section 56, the Managing General Partner, and no other Partner, shall manage
the affairs of the Partnership, shall apply himself diligently for the
Partnership, and shall devote to the Partnership such time as is necessary and
appropriate to manage the business of the Partnership. The Managing General
Partner is not required to devote all its business time to the Partnership, and
it may engage in other business ventures and employment,
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including those in competition with the Partnership. In the performance of its
duties, the Managing General Partner may hire employees and agents of the
Partnership and generally shall supervise and direct all the daily operations
of the Partnership.
19. Managing General Partner's Fees and Expenses.
(a) Fees to Managing General Partner. In
consideration for performing services described herein, the Managing General
Partner may be paid a fee as agreed to by a Majority in Interest. Such fees
shall be deemed earned when the services have been performed and, regardless of
when paid, shall be non-executory from the date earned and shall be the
obligation of the Partnership from and after that date.
(b) Expenses. Except as otherwise provided
herein, the Partnership shall pay all expenses of the Partnership (which
expenses may be either billed directly to the Partnership or reimbursed to the
Managing General Partner) which may include, but are not limited to: (i) all
costs of borrowed money, taxes and assessments on the Property and other taxes
applicable to the Partnership; (ii) all costs for goods and materials, whether
purchased by the Partnership directly or by the Managing General Partner on
behalf of the Partnership; (iii) legal, audit, accounting, brokerage and other
professional fees; (iv) fees and expenses paid to independent contractors,
mortgage bankers, brokers, insurance brokers and other agents; (v) expenses of
organizing, revising, amending, converting, modifying or terminating the
Partnership; (vi) expenses in connection with distributions made by the
Partnership to, and communications and bookkeeping work necessary in
maintaining relations with, Partners; (vii) expenses in connection with
preparing and mailing reports to Partners; (viii) costs of any accounting,
statistical or bookkeeping equipment necessary for the maintenance of the books
and records of the Partnership; (ix) the cost of preparation and dissemination
of informational material and documentation relating to the Partnership; (x)
except with respect to litigation solely among the Partners as such, costs
incurred in connection with any litigation in which the Partnership is
involved, as well as in the examination, investigation or other proceedings,
conducted against the Partnership by any regulatory agency, including legal and
accounting fees incurred in connection therewith; (xi) costs of any computer
services or equipment or services of personnel used for or by the Partnership;
and (xii) expenses of professionals employed by the Partnership in connection
with any of the foregoing, including attorneys, accountants and appraisers.
20. Authority of Managing General Partner. Except as otherwise
provided herein, the Managing General Partner may bind the Partnership to do
all acts that are necessary, appropriate, or incidental to the accomplishment
of the purposes of the Partnership. Any person dealing with the Partnership or
the Managing General Partner may rely on a certificate signed by the Managing
General Partner as to the identity of any Partner, the existence or absence of
any fact or condition that is necessary to permit action by either the
Partnership or the Managing General Partner
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or germane in any other way to the affairs of the Partnership, and the persons
who are authorized to execute and deliver any documents or instruments of or on
behalf of the Partnership. Without limiting the generality of the foregoing,
the Managing General Partner is specifically authorized to do the following:
(a) to negotiate and enter into leases and
agreements with land or building owners or other Persons, and to incur
obligations for, and on behalf of, the Partnership in connection with
Partnership business;
(b) to borrow money on behalf of the Partnership
and, as security therefor, to encumber the Property;
(c) to prepay, in whole or in part, refinance,
increase, modify or extend any obligation affecting the Property;
(d) to sell, exchange, convey and lease the
Property;
(e) to employ from time to time, at the expense
of the Partnership, other Persons required for the operation and management of
the Partnership business, including accountants, attorneys and others, who may
be Partners, on such terms and for such compensation as the Managing General
Partner determines to be reasonable and this may include Persons which are
Affiliates;
(f) to pay all attorney's and accountant's fees
and other costs incurred in connection with the formation of the Partnership
business and the completion of all steps necessary or advisable for the
Partnership to comply with applicable laws;
(g) to assume the responsibilities imposed on the
Managing General Partner by the Act;
(h) to compromise, arbitrate or otherwise adjust
claims in favor of or against the Partnership and to carry such insurance as
the Managing General Partner considers advisable;
(i) to exercise the voting rights associated with
the securities and other Property owned by the Partnership;
(j) to commence or defend litigation with respect
to the Partnership or any assets of the Partnership as the Managing General
Partner considers advisable, at the expense of the Partnership;
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(k) to make, execute, acknowledge and deliver
documents of transfer and conveyance and any other instruments that may be
necessary or appropriate to carry out its powers; and
(l) to do all such acts and take all such
proceedings and execute all such rights and privileges, although not
specifically mentioned herein, as the Managing General Partner considers
necessary to conduct the business of the Partnership and to carry out the
purposes of the Partnership.
Notwithstanding the foregoing, the Managing General
Partner shall not take any of the following actions without the consent of a
Majority in Interest:
(1) assign all or any part of the
property for the benefit of its creditors or confess a judgment against the
Partnership;
(2) take any action in
contravention of the Act, the certificate of limited partnership or this
Agreement;
(3) sell, lease, transfer, assign,
pledge or encumber the property of the Partnership (except with respect to
transactions to which section 16(b)(ii), section 32 or section 37 applies);
(4) loan an amount of money in
excess of $10,000 to a Partner; or
(5) admit a Person as a General
Partner of the Partnership.
21. Special Limitation. During the period the Partners have
determined that the Partnership will only be availed of only for investment
purposes, which shall be the period, if any, contemplated by Section 6(c),
except to the extent section 16(b)(ii) applies, the Managing General Partner
may not purchase, sell, or exchange Marketable Securities without the consent
of the Partners to whom the Marketable Securities are deemed owned or allocated
for federal income tax purposes, but the Managing General Partner shall have
voting rights and all other aspects of management and control over such
Marketable Securities.
22. Dealing with Affiliates. The Managing General Partner may
employ and enter into contracts and other arrangements with any Person,
including an Affiliate, and may obligate the Partnership to pay reasonable
compensation for services rendered by such Persons on terms that, in the
judgment of the Managing General Partner, are not less favorable to the
Partnership than would be available from an unrelated party.
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23. Indemnification of General Partner. The Managing General
Partner need not secure the performance of its duties by bond or otherwise. A
General Partner is not liable, responsible, or accountable in damages or
otherwise to any Partner or to the Partnership for any act taken or omission
made in good faith on behalf of the Partnership and in a manner that such
General Partner reasonably believes to be within the scope of the authority
granted to it by this Agreement and in the best interest of the Partnership,
except for gross negligence or willful misconduct. Any loss, expense
(including attorneys' fees) or damage incurred by a General Partner by reason
of any act or omission by it in good faith on behalf of the Partnership and in
a manner that it reasonably believes to be within the scope of the authority
granted to it by this Agreement and in the best interest of the Partnership
(but not, in any event, any loss, expense or damage incurred by a General
Partner by reason of gross negligence or willful misconduct) shall be paid to
the indemnified General Partner from the Partnership's assets, to the extent
available.
24. Liability of Limited Partners. The liability of each Limited
Partner is limited to its Capital Contributions. Except as provided by the
Act, a Limited Partner is not required to contribute money to, or for the
liabilities of the Partnership, and is not personally liable for any loss,
liability or other obligations of the Partnership.
25. Authority of Limited Partners and Non-Managing General
Partners. The Limited Partners shall not participate in the management of, or
have any control over, the business or policies of the Partnership, nor any
control over Marketable Securities, except as required by the Act or permitted
by section 20 and section 56, and the Limited Partners shall not transact any
business in the name of the Partnership. Notwithstanding the foregoing, the
Partners may make the election set forth in Treas. Reg. Section 1.761-2 to
have the Partnership excluded from the provisions of Subchapter K of Chapter 1
of the Code. In the event a Partner ceases (whether through removal, death, or
resignation) to serve as Managing General Partner, a Majority in Interest of
the Partners shall appoint another Partner to serve as the Managing General
Partner.
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ARTICLE VII
TRANSFER OF PARTNERSHIP INTERESTS
26. Limited Partners. A Limited Partner shall not pledge,
encumber or hypothecate his interest in the Partnership without the consent of
the Managing Partner. Otherwise, subject to sections 28 and 29, and only if
the Managing General Partner consents, a Limited Partner may make an Assignment
of a Limited Partnership Interest. However, an Assignment does not relieve the
Limited Partner of his obligations and liabilities under this Agreement, or
constitute the assignee a Limited Partner, or confer on the assignee any
Partnership Rights. An assignee of a Limited Partner's Partnership Interest
may be admitted and substituted as a Limited Partner and acquire Partnership
Rights only upon the satisfactory completion of the requirements specified in
section 29. The failure or refusal of the Managing General Partner to consent
to the admission of an assignee as a Limited Partner does not affect the right
of the assignee to the Partnership Interest of his predecessor in interest.
27. General Partner. Subject to section 28, a General Partner may
make an Assignment, directly or indirectly, of all or any part of its
Partnership Interest. However, an Assignment does not relieve such General
Partner of its obligations and liabilities under this Agreement, or constitute
the assignee a General Partner, or confer on the assignee any Partnership
Rights. Subject to section 28, and only if a Majority in Interest consents, a
General Partner may make an Assignment of both its Partnership Interest and its
Partnership Rights if the assignee assumes in writing all such General
Partner's obligations and liabilities under this Agreement and if all the
applicable requirements of section 29 are satisfied. Upon compliance with the
immediately preceding sentence, an assignee of such General Partner has all the
rights and powers granted to such General Partner under this Agreement and has
all the obligations and liabilities of such General Partner under this
Agreement.
28. Restriction on Transfer. Notwithstanding any other provision
of this Agreement, an assignment of a Partnership Interest shall not be made,
and consent thereto shall be withheld:
(a) Unless the Managing General Partner has
satisfied itself (by seeking advice of legal counsel or otherwise, with any
resulting Partnership expense to be reimbursed by the assignor) that the
assignment will not have any significant adverse tax effect upon the
Partnership or the other Partners;
(b) Unless the Managing General Partner has
satisfied itself (by advice of legal counsel, with any resulting Partnership
expense to be reimbursed by the assignor) that the proposed assignment may be
made without registration under any applicable securities law; and it will not
violate any applicable securities law (including investor suitability
standards);
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(c) If the Assignment is sought to be made to:
(i) a minor or incompetent, except if
made by will or intestate succession, or
(ii) to a Person which is not an
Affiliate.
29. Admission of Substitute Partner. Subject to the other
provisions of this Agreement, an assignee of a Partnership Interest may be
admitted as a Partner and granted Partnership Rights only if:
(a) the Assignment is made pursuant to a written
instrument in a form satisfactory to the Managing General Partner and specifies
the intention of the assignor that the assignee be substituted as a Partner;
(b) the Managing General Partner consents to the
admission by executing two counterparts of this Agreement that evidences the
Partnership Rights of the assignee, and if the assignee is to be admitted as a
Partner a Majority in Interest consent to the admission;
(c) the assignee accepts, signs and agrees to be
bound by this Agreement, by executing two counterparts of this Agreement,
including an amended EXHIBIT A, and such other documents or instruments as the
Managing General Partner requires to effect the admission of the assignee as a
Partner;
(d) the assignee provides the Managing General
Partner with evidence satisfactory to it of the assignee's authority to become
a Partner under the terms of this Agreement;
(e) the assignee pays all filing, publication and
other costs (including reasonable attorneys' fees) incurred by either the
Partnership or the Managing General Partner in connection with the admission
and substitution of the assignee as a Partner.
Notwithstanding an assignee's satisfaction of any or all of
the conditions specified above, the Managing General Partner, in its absolute
discretion, may refuse to consent to the assignee's admission as a Partner, in
which event the assignee will not obtain any Partnership Rights, but will
retain only the rights of an assignee under sections 26 or 27.
30. Rights of Partner After Assignment and Substitution. Upon the
Assignment of all his Partnership Interest, and the admission of a substitute
partner, a Partner shall cease to be a Partner and to have any Partnership
Rights.
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31. Allocations and Distributions After Assignment. For the
purposes of allocations of Profits and Losses, Taxable Income or Taxable Loss,
and distributions, an Assignment of a Partnership Interest is effective as to
the Partnership, and shall be reflected in the records of the Partnership, as
of the date that the Managing General Partner receives written notice of the
Assignment. The Taxable Income or Taxable Loss, Profits and Losses and cash
and other distributions in respect of the assigned Partnership Interest with
respect to the fiscal year in which the Assignment of the Partnership Interest
occurs shall be divided between the assignor and the assignee according to the
method provided to the Managing General Partner by the assignor and the
assignee, so long as such method is permitted under the Code and does not
adversely affect the other Partners or the Partnership from a tax or economic
perspective. The method of allocation shall be provided to the Managing
General Partner in the written notice of the Assignment. Any additional costs
for computing the allocations hereunder shall be paid by the assignor or
assignee, as the case may be. The written notice referred to above shall also
contain information as to whether the assignor or assignee shall be responsible
for the payment of such additional cost, if any.
ARTICLE VIII
RETIREMENT, WITHDRAWAL, OR REMOVAL OF PARTNERS
32. Withdrawal of Limited Partner.
(a) A Limited Partner may, at any time, withdraw
all or part of his Partnership Interest from the Partnership by providing
written notice thereof to the Managing General Partner. Immediately after the
receipt of such written notice from a Partner, the Managing General Partner
shall make the appropriate distributions to the Partner in partial or complete
redemption of his Partnership Interest as set forth in section 16(b).
(b) A partial withdrawal by a Partner shall be
made in increments of one-tenth (1/10th) of one percent (1%) of a Percentage
Interest. The written notice of withdrawal from a Partner to the Managing
General Partner must state whether the withdrawal is a partial or complete
withdrawal and, if a partial withdrawal, must state the Percentage Interest
that is being withdrawn. A Partner shall not make a partial withdrawal that
will result in his remaining Percentage Interest becoming less than one-tenth
(1/10th) of one percent (1%) immediately after the withdrawal.
(c) The Managing General Partner agrees that it
will fully cooperate to the extent permitted by law to accomplish a withdrawal
requested by a Partner hereunder. It also agrees that it will not take any
action that will obstruct or render impossible the application of this section
32 (such as to pledge the Partnership's
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Marketable Securities as collateral to creditors of the Partnership), unless
such action is essential to accomplish the purposes of the Partnership.
(d) The withdrawal of a Partner does not dissolve
or terminate the Partnership unless there is only one Partner then remaining.
The remaining Partners shall amend this Agreement to reflect the partial or
complete withdrawal of the Partner from the Partnership, if and to the extent
necessary.
(e) Upon the giving of the notice of withdrawal
pursuant to Paragraph (a), and upon the dissolution of the Partnership, the
voting rights with respect to any stock of PowerCerv Corporation allocable to
the Percentage Interest being withdrawn shall be vested in the withdrawing
Partner or Partners, and the Partnership shall have no voting rights with
respect to such stock.
(f) The complete withdrawal of all the Limited
Partners shall constitute a dissolution of the Partnership pursuant to Article
IX.
33. Retirement, Removal, or Withdrawal of Managing General
Partner. The Managing General Partner may not withdraw all of its General
Partnership Interest and the non-managing General Partner may completely
withdraw his General Partnership Interest without the consent of a Majority in
Interest. A Majority-In-Interest may remove the Managing General Partner upon
written notice which shall take effect upon delivery. The Retirement, removal,
or withdrawal of the Managing General Partner shall dissolve the Partnership
unless a General Partner is appointed to serve in its place. Notwithstanding
the foregoing or anything else in this Agreement to the contrary, a merger,
consolidation, or reorganization of a Managing General Partner who is not a
natural person, or a sale of all or substantially all its assets that includes
its Partnership Interest, is not a Retirement or withdrawal of such Managing
General Partner if the resulting, surviving or acquiring Person is an Affiliate
and becomes substituted as the Managing General Partner of the Partnership.
The resulting, surviving or acquiring Person is substituted as the Managing
General Partner without further act if it gives notice of the substitution to
the Partners before the effective date of the merger, consolidation,
reorganization or sale. Each Partner consents to the admission and
substitution of such substitute Managing General Partner pursuant to this
section 33, and no further consent or approval of any Partner is required.
34. Retirement of Limited Partner. The Retirement of a Limited
Partner does not dissolve or terminate the Partnership except as provided in
section 36(g), but the legal or personal representatives, heirs, successors,
assignees, or stockholders of a Retired Limited Partner, subject to section 26,
shall succeed to the Partnership Interests of the Retired Limited Partner and
may make an Assignment of the Partnership Interests within the limitations set
forth in this Agreement.
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35. Rights of Partner After Retirement, Removal, or Withdrawal. A
Partner ceases to have any Partnership Rights upon his Retirement, removal, or
complete withdrawal from the Partnership. However, until the appropriate
distributions, if any, are made to a Retired, removed, or withdrawn Partner for
his Partnership Interest, the Retired, removed, or withdrawn Partner is
entitled to receive the allocations of Profits and Losses, Taxable Income or
Taxable Loss and all distributions referred to in section 16 applicable to his
Partnership Interest.
ARTICLE IX
DISSOLUTION
36. Events of Dissolution. The Partnership shall be dissolved,
and unless reconstituted shall be terminated, upon:
(a) the expiration of its term;
(b) the vote of a Majority in Interest to
dissolve the Partnership;
(c) the Partnership being adjudicated insolvent
or bankrupt;
(d) the Retirement, removal, or withdrawal of the
last General Partner;
(e) the death of Roy E. Crippen III; or
(f) the sale of all or substantially all of the
Partnership's Property.
(g) the complete withdrawal of the Limited
Partners.
37. Winding-Up and Distributions. Upon the dissolution of the
Partnership pursuant to section 36, and unless the Partnership is
reconstituted, the winding-up of the Partnership's business and the liquidation
and distribution of Partnership assets must be carried out with due diligence
and in a timely manner, and consistent with both the requirements of applicable
law and the following provisions of this section:
(a) The Managing General Partner shall be
responsible for taking all actions relating to the winding-up, liquidation, and
distribution of assets of the Partnership, unless its Retirement, removal, or
withdrawal causes the dissolution, in which case the fiscal agent, liquidator,
or receiver appointed (without judicial action) by a Majority in Interest shall
be so responsible. The Managing General Partner, or the appointed fiscal
agent, liquidator, or receiver, is referred to in this Agreement as the
"Liquidator." A Limited Partner can be appointed to be the Liquidator. The
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Liquidator shall file all certificates or notices of the dissolution of the
Partnership as required by law. Upon the complete liquidation and distribution
of the Partnership assets, the Partnership shall terminate, and the Liquidator
shall execute, acknowledge, and cause to be filed all certificates and notices
required by law to terminate the Partnership.
(b) The Liquidator shall proceed without
unnecessary delay to sell and otherwise liquidate the Partnership's assets.
Unless directed otherwise by a Majority in Interest, all Marketable Securities,
including interests in PowerCerv Corporation, cash and other readily divisible
or fungible assets of the Partnership shall be distributed directly to the
Partners in the manner set forth in section 16(c)(i). The Liquidator shall
promptly sell the other assets of the Partnership unless it determines that an
immediate sale of part or all of such assets would cause undue loss to the
Partners. In such case, the Liquidator, to avoid such loss, may defer the
liquidation of the Partnership assets for a reasonable time, except for those
liquidations that are necessary to satisfy the debts and liabilities of the
Partnership to persons and parties other than the Partners. The Liquidator
shall distribute the proceeds from the liquidation of the Partnership's assets
as provided in section 16(c).
(c) Upon the dissolution of the Partnership
pursuant to section 36, and unless the Partnership is reconstituted, the
Liquidator shall cause the accountants for the Partnership to prepare within
ninety (90) days after the occurrence of the event of dissolution, and
immediately thereafter shall furnish to each Partner, a statement setting forth
the assets and liabilities of the Partnership as of the date of its
dissolution. The Liquidator, promptly following the complete liquidation and
distribution of the Partnership's assets, shall cause the Partnership's
accountants to prepare, and the Liquidator shall furnish to each person who is
a Partner immediately before the dissolution, a statement showing the manner in
which the Partnership assets were liquidated and distributed.
38. Distribution of Liquidation Proceeds and Assets and Allocation
of Gains and Losses. The net proceeds from liquidation of the Partnership's
assets and the unliquidated Property of the Partnership shall be distributed,
and all Profits and Losses resulting from the liquidation of the Partnership
shall be allocated, among the Partners in the proportions and orders of
priority specified in section 16(c).
39. Limitation of Liability of Partners. Upon the dissolution of
the Partnership and the distribution of the net liquidation proceeds pursuant
to section 36 and section 16(c), each Partner shall look solely to the assets
of the Partnership for the payment of his unreturned Capital Contributions, and
if the Partnership's assets remaining after the payment or discharge of the
debts and liabilities of the Partnership are insufficient to pay the full
amount of the unreturned Capital Contributions of each Partner, the Partner
shall have no recourse or claim against any Partner or the
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Partnership with respect to its unreturned Capital Contributions, except for
claims for fraud, gross negligence, or breach of fiduciary duty.
40. Waiver of Right of Partition of Assets. Each Partner, and for
his heirs, successors, and assigns, waives his right to the partition of the
assets of the Partnership upon the dissolution and liquidation of the
Partnership.
ARTICLE X
ACCOUNTING YEAR, BOOKS, RECORDS, AND REPORTS
41. Books and Records. The Managing General Partner shall
maintain at the principal office of the Partnership a complete and accurate set
of books of records and accounts, in which it shall make full and complete
entries of all dealings or transactions relating to the Partnership's business
and where it shall keep all supporting documentation of transactions with
respect to the conduct of the Partnership's business. Each Partner or his duly
authorized representative, upon five days' advance notice to the Managing
General Partner, may examine during normal business hours the books of the
Partnership and all other records and information concerning the operation of
the Partnership.
42. Reports. If requested by a Partner at least 30 days prior to
the end of a quarter, within 60 days after the end of each fiscal quarter in
each fiscal year of the Partnership, the Managing General Partner shall cause
to be prepared and sent to each Partner a balance sheet, income statement and
cash flow statement of the Partnership for and as of the end of that fiscal
quarter, in each case unaudited but accompanied by a report of the activities
of the Partnership for that quarter. Within 90 days after the end of each
fiscal year of the Partnership, the Managing General Partner shall cause to be
prepared and sent to each Partner a financial report consisting of (a) a
balance sheet as of the end of the fiscal year; (b) statements of income,
partner's equity, and changes in financial position for the fiscal year; (c) if
requested by a Partner, the opinion of the Partnership's certified public
accountant concerning the foregoing financial statements; (d) a summary of the
Partnership's activities for the fiscal year; (e) a statement showing the
distributions to each Partner during the fiscal year and identifying any
distributions which constitute a return of Capital Contribution; and (f) a
statement showing the amount of Taxable Income or Taxable Loss, and listing
each item of income, gain, loss, deduction, or credit allocated or charged
against the Partner for federal and state income tax purposes.
43. Bank Accounts. The Managing General Partner shall maintain
the bank accounts of the Partnership in such financial institutions as the
Managing General Partner considers appropriate. The consent of the Managing
General Partner is required to open an account and to determine who is
authorized to withdraw funds
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therefrom. The Managing General Partner shall make or permit withdrawals from
the Partnership's bank accounts on the signature of the Managing General
Partner.
44. Tax Elections. If the Partnership has not made the election
set froth in Treas. Reg. Section 1.761-2, or if Subchapter K of Chapter 1 of
the Code applies to the Partnership, the Partnership shall file an election
under Section 754 of the Code, relating to the optional adjustment to the basis
of partnership property, at the first time it is permitted to do so after the
beginning of the term of this Partnership. The Managing General Partner shall
make or waive, at its discretion, all other tax elections required or permitted
to be made by the Partnership under the Code.
45. Accounting Method and Fiscal Year. The Managing General
Partner shall maintain the Partnership records and books of accounts in
accordance with the cash method of accounting, with such modifications as are
set forth in this Agreement, and otherwise in accordance with generally
accepted accounting principles consistently applied. The fiscal year of the
Partnership is the calendar year.
ARTICLE XI
GENERAL PROVISIONS
46. Power of Attorney. Each Limited Partner (including each
substitute Limited Partner), by executing a counterpart of this Agreement,
irrevocably constitutes and appoints, with full power of substitution, the
Managing General Partner as his true and lawful attorney-in-fact, with full
power and authority in his name, place and stead to make, execute, acknowledge,
deliver, swear to, publish, record and file:
(a) any certificate or other instrument that may
be required to be filed, published or recorded by the Partnership under the Act
or any other law of Nevada or that the Managing General Partner considers
advisable to file, publish or record;
(b) all documents (including schedules and
amendments to this Agreement) that may be required to effect the continuation
or reinstatement of the Partnership, admit an additional or substitute Partner
(other than any approval required of Limited Partners), reduce the Capital
Contributions of a Partner, or dissolve and terminate the Partnership; and
(c) all amendments to this Agreement adopted in
accordance with section 54.
The foregoing power of attorney is coupled with an interest, resulting from
each Limited Partner's reliance on the power of the attorney-in-fact to act as
contemplated
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by this Agreement for the purposes described in this section 46. The foregoing
power of attorney shall survive the Retirement of a Limited Partner and the
Assignment by any Limited Partner of all or any part of his Partnership
Interest, except that when an assignee is granted Partnership Rights and
admitted as a substitute Limited Partner the power of Attorney of the assignor
Limited Partner shall survive the Assignment only for the purpose of enabling
the Managing General Partner to make, execute, acknowledge, deliver, swear to,
publish, record and file every instrument necessary to effect the substitution.
47. Partnership Contracts. The Managing General Partner may enter
into agreements and contracts on behalf of the Partnership only if they are in
writing and clearly indicate to the other parties that the Partnership is a
general partnership of which the Managing General Partner is a general partner.
48. Conveyances. Subject to section 20, the Managing General
Partner may sign any deed, mortgage, lease, bill of sale, security agreement,
pledge, contract or other instrument or commitment purporting to convey or
encumber any of the Partnership's Property or any interest therein, whether now
or subsequently owned or leased at any time by the Partnership, and no other
signature is required.
49. Notices. To be effective, a notice required or permitted by
this Agreement must be in writing, or by telegram, telex or telecopy if
promptly confirmed in writing. A notice is given when delivered or, if mailed,
when deposited in a United States postal service letterbox to be sent by
first-class, postage-prepaid, certified mail, with return receipt requested
(whether or not the sender receives the return receipt), and addressed, if to a
Partner, at his registered address listed on EXHIBIT A and, if to the Managing
General Partner or the Partnership, to the attention of such Managing General
Partner at the Partnership's principal business office.
50. Consents. Any consent required by this Agreement may be given
as follows:
(a) by a writing given by the consenting Partner
and received by the Managing General Partner or other appropriate recipient at
or before the occurrence of the action or other thing for which the consent was
solicited, unless the consent is nullified by:
(i) A writing from the consenting
Partner that is received by the Managing General Partner before the occurrence
of the action or other thing for which the consent was solicited; or
(ii) the negative vote by the consenting
Partner at any meeting called for the purpose of considering the action or
other thing.
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(b) by the affirmative vote of the consenting
Partner at any meeting called for the purpose of considering the action or
other thing for which the Partner's consent was solicited.
51. Meetings. The Managing General Partner may call meetings of
the Partners for any purpose, at any, time. The Managing General Partner shall
call a meeting of the Partners within 30 days after he receives from a Majority
in Interest a written request for a meeting, stating the purpose of the
requested meeting and the matters proposed for consideration. Meetings of the
Partners may be held at such time, date and place as the Managing General
Partner designates. The Managing General Partner shall give notice of any
meeting of the Partners not less than ten nor more than 60 days before the date
of the meeting, to each Partner at his registered address listed on EXHIBIT A.
The notice shall state the time, date and place of the meeting, the purpose of
the meeting and the Partner at whose direction or request the meeting is
called. Except in the case of emergency, meetings of the Partnership shall be
held in Nevada. If a meeting is adjourned to another time or place, notice of
the adjourned meeting is not required if the time and place of the adjournment
is announced at the called meeting. The presence in person or by proxy of a
Majority in Interest constitutes a quorum at a meeting. Any notice of a
meeting required by this section may be waived in writing at, before or after
the meeting and shall be deemed to be waived by each Partner who is present in
person or by proxy at the meeting. Only those persons who are Partners at the
close of business on the day before the meeting are entitled to vote at the
meeting. Any Partner entitled to vote at a meeting may authorize any person to
act for him by written proxy if a copy of the proxy is delivered to the
Managing General Partner before the commencement of the meeting. To be
effective, a proxy must be signed by the Partner (and, if applicable, each
co-owner) or his duly appointed attorney-in-fact, and no proxy shall be valid
for more than 11 months after its date. A proxy is revocable at the pleasure
of the Partner granting it.
52. Binding Effect; Counterparts. The covenants and agreements
contained in this Agreement are binding on, and inure to the benefit of, the
legal and personal representatives, heirs, successors and permitted assignees
of the parties to this Agreement. The parties may execute this Agreement in
any number of counterparts, each of which will be an original, but all of which
together will constitute one and the same agreement.
53. Choice of Law. This Agreement and the rights and obligations
of the Partners under it are governed by, and construed and enforced in
accordance with, the laws of Nevada.
54. Complete Agreement; Modification. This Agreement contains the
final, complete and exclusive expression of the understanding among the
Partners with respect to the Partnership and its purposes and objectives and
supersedes any prior or contemporaneous agreement or representation, oral or
written, by any of them. Except
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to admit a new or a substitute Partner or to reflect the withdrawal or
Retirement of a Partner, this Agreement and every provision of it may be
modified or amended only by an agreement in writing signed by or on behalf of
all Partners.
55. Evidence of Partnership Interests. The Partnership Interest
of each Partner is evidenced exclusively by a counterpart of this Agreement
(including EXHIBIT A) that has been signed and dated by the Managing General
Partner.
56. Tax Matters Partner. The Managing General Partner or its
designee shall be the "tax matters partner" of the Partnership for federal
income tax purposes. Pursuant to Section 6223(c)(2) of the Code, upon receipt
of notice from the Internal Revenue Service of the beginning of an
administrative proceeding with respect to the Partnership, the General Partner,
as the tax matters partner, shall furnish the Internal Revenue Service with the
names, addresses, and Percentage Interests of each of the Partners. The
General Partner agrees not to enter into a settlement agreement pursuant to
Section 6224 of the Code without providing at least 30 days advance written
notice to each Partner. As tax matters partner, the General Partner shall have
absolute discretion regarding whether to seek judicial review of any
administrative determination and, if it determines to seek judicial review of
Internal Revenue Service action pursuant to Section 6226 of the Code, then the
General Partner shall select the judicial forum for such review. The tax
matters partner shall receive no compensation for its services as such. The
Partnership shall bear all third party costs and expenses incurred by the tax
matters partner in performing its duties as such. Nothing herein shall be
construed to restrict the Partnership from engaging an accounting firm or law
firm to assist the tax matters partner in discharging its duties hereunder.
57. Gender and Number. As used in this Agreement, the masculine
gender includes the feminine and neuter, and the singular includes the plural.
58. Title. Title to any Property acquired by the Partnership
shall be taken in the name of the Partnership.
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IN WITNESS WHEREOF, this Agreement has been executed by or on behalf
of each Partner as of the date indicated in the first paragraph of this
Agreement.
MANAGING GENERAL PARTNER:
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R.C.F., Inc.
LIMITED PARTNER:
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Roy E. Crippen III
ROY EDWARD CRIPPEN III (1995) ANNUITY TRUST
By:
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Roy E. Crippen III, as Trustee
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