<PAGE>
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 1)
Koll Real Estate Group, Inc.
(Name of Issuer)
Class A Common Stock
(Title of Class of Securities)
50043410 5
(CUSIP Number)
Bridge Partners, L.P.
c/o Carson Street Partners, Inc.
Attn: Mr. John W. Gildea
115 East Putnam Avenue, Greenwich, Connecticut 06830
(203) 661-6945
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
May 30, 1995
(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 disclosure
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).
Exhibit Index: Page 10
Page 1 of __ Pages
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CUSIP No. 50043410 5
- --------------------------------------------------------------------------------
1 Name of Reporting Person(1)
S.S. or I.R.S. Identification No. of Above Person
Bridge Partners, L.P.
- --------------------------------------------------------------------------------
2 Check the Appropriate Box If a Member of a Group
a. / /
b. / /
- --------------------------------------------------------------------------------
3 SEC Use Only
- --------------------------------------------------------------------------------
4 Source of Funds
WC
- --------------------------------------------------------------------------------
5 Check Box If Disclosure of Legal Proceedings Is Required Pursuant to
Items 2(d) or 2(e) / /
- --------------------------------------------------------------------------------
6 Citizenship or Place of Organization
Delaware
- --------------------------------------------------------------------------------
7 Sole Voting Power
Number of 17,518,200(2)
Shares
Beneficially 8 Shared Voting Power
Owned By -0-
Each
Reporting 9 Sole Dispositive Power
Person 17,518,200(2)
With
10 Shared Dispositive Power
-0-
- --------------------------------------------------------------------------------
11 Aggregate Amount Beneficially Owned by Each Reporting Person
17,518,200
- --------------------------------------------------------------------------------
12 Check Box If the Aggregate Amount in Row (11) Excludes Certain
Shares / /
- --------------------------------------------------------------------------------
- --------
(1) Filing jointly pursuant to Rule 13d-1(f)(1) under the Securities Exchange
Act of 1934, as amended (the "Exchange Act") with Carson Street Partners,
Inc. and John W. Gildea.
(2) Includes 5,639,400 shares of Class A Common Stock and 11,878,800 shares
of Series A Convertible Redeemable Preferred Stock (which Preferred
Stock is generally non-voting stock and which is convertible into
shares of the Class A Common Stock on a share-for-share basis), and is
calculated in accordance with Rule 13d-3(d)(1) under the Exchange Act.
Page 2 of __ Pages
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13 Percent of Class Represented By Amount in Row (11)
29.9%(3)
- --------------------------------------------------------------------------------
14 Type of Reporting Person
PN
- --------------------------------------------------------------------------------
- --------
(3) See footnote 2, above.
Page 3 of __ Pages
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CUSIP No. 50043410 5
- --------------------------------------------------------------------------------
1 Name of Reporting Person(4)
S.S. or I.R.S. Identification No. of Above Person
Carson Street Partners, Inc.
- --------------------------------------------------------------------------------
2 Check the Appropriate Box If a Member of a Group
a. / /
b. / /
- --------------------------------------------------------------------------------
3 SEC Use Only
- --------------------------------------------------------------------------------
4 Source of Funds
AF
- --------------------------------------------------------------------------------
5 Check Box If Disclosure of Legal Proceedings Is Required Pursuant to
Items 2(d) or 2(e) / /
- --------------------------------------------------------------------------------
6 Citizenship or Place of Organization
Delaware
- --------------------------------------------------------------------------------
7 Sole Voting Power
Number of 17,518,200(5)
Shares
Beneficially 8 Shared Voting Power
Owned By -0-
Each
Reporting 9 Sole Dispositive Power
Person 17,518,200(5)
With
10 Shared Dispositive Power
-0-
- --------------------------------------------------------------------------------
11 Aggregate Amount Beneficially Owned by Each Reporting Person
17,518,200
- --------------------------------------------------------------------------------
12 Check Box If the Aggregate Amount in Row (11) Excludes Certain
Shares / /
- --------------------------------------------------------------------------------
- --------
4 Filing jointly pursuant to Rule 13d-1(f)(1) under the Exchange Act with
Bridge Partners, L.P. and John W. Gildea.
5 Includes 5,639,400 shares of Class A Common Stock and 11,878,800 shares
of Series A Convertible Redeemable Preferred Stock (which Preferred
Stock is generally non-voting stock and which is convertible into
shares of the Class A Common Stock on a share-for-share basis), and is
calculated in accordance with Rule 13d-3(d)(1) under the Exchange Act.
Page 4 of __ Pages
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13 Percent of Class Represented By Amount in Row (11)
29.9%(6)
- --------------------------------------------------------------------------------
14 Type of Reporting Person
CO
- --------------------------------------------------------------------------------
- --------
(6) See footnote 5, above.
Page 5 of __ Pages
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CUSIP No. 50043410 5
- --------------------------------------------------------------------------------
1 Name of Reporting Person(7)
S.S. or I.R.S. Identification No. of Above Person
John W. Gildea
- --------------------------------------------------------------------------------
2 Check the Appropriate Box If a Member of a Group
a. / /
b. / /
- --------------------------------------------------------------------------------
3 SEC Use Only
- --------------------------------------------------------------------------------
4 Source of Funds
AF
- --------------------------------------------------------------------------------
5 Check Box If Disclosure of Legal Proceedings Is Required Pursuant to
Items 2(d) or 2(e) / /
- --------------------------------------------------------------------------------
6 Citizenship or Place of Organization
U.S.A.
- --------------------------------------------------------------------------------
7 Sole Voting Power
Number of 17,518,200(8)
Shares
Beneficially 8 Shared Voting Power
Owned By -0-
Each
Reporting 9 Sole Dispositive Power
Person 17,518,200(2)
With
10 Shared Dispositive Power
-0-
- --------------------------------------------------------------------------------
11 Aggregate Amount Beneficially Owned by Each Reporting Person
17,518,200
- --------------------------------------------------------------------------------
12 Check Box If the Aggregate Amount in Row (11) Excludes Certain
Shares / /
- --------------------------------------------------------------------------------
- --------
(7) Filing jointly pursuant to Rule 13d-1(f)(1) under the Exchange Act with
Bridge Partners, L.P. and Carson Street Partners, Inc.
(8) Includes 5,639,400 shares of Class A Common Stock and 11,878,800 shares
of Series A Convertible Redeemable Preferred Stock (which Preferred
Stock is generally non-voting stock and which is convertible into
shares of the Class A Common Stock on a share-for-share basis), and is
calculated in accordance with Rule 13d-3(d)(1) under the Exchange Act.
Page 6 of __ Pages
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13 Percent of Class Represented By Amount in Row (11)
29.9%(9)
- --------------------------------------------------------------------------------
14 Type of Reporting Person
IN
- --------------------------------------------------------------------------------
- --------
(9) See footnote 8, above.
Page 7 of __ Pages
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This Amendment No. 1 amends and restates for EDGAR purposes the
Statement on Schedule 13D relating to shares of Class A Common Stock of Koll
Real Estate Group, Inc., a Delaware corporation (the "Company") filed in hard
copy on July 25, 1995 (the "Schedule 13D") with the Securities and Exchange
Commission.
Schedule 13D is hereby restated, amended and supplemented as follows:
Item 1. Security and Issuer.
This Schedule 13D relates to the Class A Common Stock, par value $.05
per share (the "Common Stock"), of the Company. The address of the
principal executive offices of the Company is 4343 Von Karman Avenue,
Newport Beach, California 92660.
Item 2. Identity and Background.
This Schedule 13D is filed jointly on behalf of Bridge Partners, L.P.,
a Delaware limited partnership, Carson Street Partners, Inc., a
Delaware corporation ("Carson Street Partners"), and John W. Gildea, a
United States citizen ("Gildea"), pursuant to Rule 13d-1(f)(1) under
the Exchange Act.
Carson Street Partners is the sole general partner of Bridge Partners
and has the power to vote and dispose of the 5,639,400 shares of Common
Stock (the "Common Shares") and 11,878,800 shares of Series A
Convertible Redeemable Preferred Stock, par value $.01 per share, of
the Company (the "Preferred Shares" and, together with the Common
Shares, the "Shares") held by Bridge Partners. Gildea is the Chairman
of the Board of Directors, Chief Executive Officer, President and
controlling stockholder of Carson Street Partners. As a result, Gildea
and Carson Street Partners may be deemed to be the indirect beneficial
owners of the Shares held by Bridge Partners. Bridge Partners'
principal business is to invest in shares of capital stock of the
Company and the capital stock and other securities of other entities.
Carson Street Partners' principal business is the management of
investments in publicly traded companies. Gildea's principal business
is managing the investments of various entities in issuers located
principally in the United States. The principal business address and
the principal office address of Bridge Partners, Carson Street Partners
and Gildea is 115 East Putnam Avenue, Greenwich, Connecticut 06830.
The name, business address, citizenship and present principal
occupation of each director and executive officer of Carson Street
Partners are set forth on Schedule I hereto.
None of Bridge Partners, Carson Street Partners, Gildea or, to the best
knowledge of such parties, any of the persons listed on Schedule I
hereto, has, during the last five years, (i) been convicted in a
criminal proceeding (excluding traffic violations or similar
misdemeanors) or (ii) been a party to a civil proceeding of a judicial
or administrative body of competent jurisdiction and as a result of
such proceeding was or is subject to a judgment, decree or final order
enjoining future violations of, or prohibiting or mandating activities
subject to, federal or state securities laws or finding any violation
with respect to such laws.
Page 8 of __ Pages
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Item 3. Source and Amount of Funds or Other Consideration.
Bridge Partners acquired the Shares for $.30 per Share, or an aggregate
of $5,255,460, all of which funds were obtained from the working
capital of Bridge Partners.
Item 4. Purpose of Transaction.
Bridge Partners acquired the Shares pursuant to the terms of a
Securities Purchase Agreement, dated as of July 13, 1995, by and among
Libra Invest & Trade Ltd., Parkway Ventures SA, Gallant Overseas Inc.
and Bridge Partners. Bridge Partners acquired and intends to hold the
Shares for investment.
Bridge Partners intends to review on a continuing basis its investment
in the Company. As of the date of this Schedule 13D, no determination
has been made by Bridge Partners to acquire additional shares of
capital stock of the Company or to dispose of any shares of capital
stock of the Company now held by it, although Bridge Partners may
decide to so acquire or dispose of shares of capital stock of the
Company. Any such determination will depend on market conditions
prevailing from time to time and on other conditions which may be
applicable depending on the nature of the transaction or transactions
involved. Except as specifically set forth in this Item 4, Bridge
Partners has no plans or proposals which relate to or would result in
any of the actions or effects set forth in items (a) through (j) of
Item 4 of Schedule 13D, although Bridge Partners may develop such plans
or proposals.
Item 5. Interest in Securities of the Issuer.
(a) Bridge Partners directly owns the 17,518,200 Shares. As the sole
general partner of Bridge Partners, Carson Street Partners may be
deemed to be the indirect beneficial owner of the 17,518,200 Shares.
As the Chairman of the Board of Directors, Chief Executive Officer and
controlling stockholder of Carson Street Partners, Gildea may be deemed
to be the indirect beneficial owner of the 17,518,200 Shares. The
17,518,200 Shares include 11,878,800 Preferred Shares which are
currently convertible into Common Stock on a share-for-share basis.
The 17,518,200 Shares represent approximately 29.9% (computed in
accordance with rule 13d-3(d)(1) under the Act) of the 58,642,546
shares of Common Stock outstanding, based upon the Company's Quarterly
Report on Form 10-Q for the fiscal quarter ended March 31, 1995.
(b) Carson Street Partners, as the sole general partner of Bridge
Partners, has the power to vote or direct the voting and the power to
dispose or direct the disposition of the Shares held by Bridge
Partners.
Gildea, as the Chairman of the Board of Directors, Chief Executive
Officer, President and controlling stockholder of Carson Street
Partners, may be deemed to have the indirect power to vote or direct
the voting and to dispose or direct the disposition of the Shares held
by Bridge Partners.
(c) Except as set forth in this Schedule 13D and except for the sale in the
open market of 5,000 shares of Series A Convertible Redeemable
Preferred Stock by Mr. O'Donnell (see Schedule I) on July 13, 1995 for
an aggregate sales price of approximately $2,200.00, neither Bridge
Partners, Carson Street Partners, Gildea or, to the best knowledge of
such parties, any of the persons named on Schedule I hereto, owns any
shares of the capital stock of the Company or has purchased or sold any
shares of the capital stock of the
Page 9 of __ Pages
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Company during the past 60 days.
(d) Except as set forth in this Schedule 13D, no person is known by Bridge
Partners, Carson Street Partners or Gildea to have the right to receive
or the power to direct the receipt of dividends from, or the proceeds
from the sale of, the Shares beneficially owned by Bridge Partners.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect
to Securities of the Issuer.
Pursuant to an Amended and Restated Agreement of Limited Partnership of
Bridge Partners dated as of May 30, 1996 by and among Carson Street
Partners, as General Partner, and the limited partners signatory
thereto, a copy of which is attached hereto as Exhibit 2 and
incorporated herein by reference, Carson Street Partners is generally
entitled to receive 11% of all net realized gains on Bridge Partners'
investments, which investments include the Shares.
Except as set forth in this Schedule 13D, there are no contracts,
arrangements, understandings or relationships (legal or otherwise)
among the persons referred to in Item 2 of this Schedule 13D or between
such persons and any other person with respect to any of the securities
of the Company, including, but not limited to, any relating to the
transfer or voting of any of such securities, finder's fees, joint
ventures, loan or option arrangements, puts or calls, guarantees of
profits, division of profits or loss or the giving withholding of
proxies.
Item 7. Materials to Be Filed as Exhibits
1. Joint Filing Agreement, dated July 21, 1995.
2. Amended and Restated Agreement of Limited Partnership dated as of
May 30, 1996.
Page 10 of __ Pages
<PAGE>
SIGNATURE
After reasonable inquiry and to the best of their respective knowledge
and belief, the undersigned certify that the information set forth in this
statement is true, complete and correct.
Dated: June 7, 1996
BRIDGE PARTNERS, L.P.
By: CARSON STREET PARTNERS, INC.,
General Partner
By: /s/ John W. Gildea
------------------------------
Name: John W. Gildea
Title: Chief Executive Officer and President
CARSON STREET PARTNERS, INC.
By: /s/ John W. Gildea
------------------------------
Name: John W. Gildea
Title: Chief Executive Officer and President
By: /s/ John W. Gildea
------------------------------
Name: John W. Gildea
Page 11 of __ Pages
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EXHIBIT INDEX
Page
Exhibit Number
- ------- ------
1. Joint Filing Agreement, dated July 21, 1995.
2. Amended and Restated Agreement of Limited Partnership dated
as of May 30, 1996.
Page 12 of __ Pages
SCHEDULE I
Reporting Person: Carson Street Partners, Inc.
115 East Putnam Avenue
Greenwich, Connecticut 06830
Executive Officers, Directors and Controlling Person:
Name ............... John W. Gildea
Positions .......... Chairman of the Board, Chief Executive Officer,
President and controlling stockholder of Carson
Street Partners, Inc.
Principal Occupation
and Employment;
Business Address ... General Partner of Gildea Management Company, a
Delaware corporation ("GMC"), investment advisor;
the business address of GMC and Mr. Gildea is: 115
East Putnam Avenue, Greenwich, Connecticut 06830
Citizenship ........ U.S.A.
Name ............... William P. O'Donnell
Positions .......... Vice President, Secretary and Treasurer, Carson
Street Partners, Inc.
Principal Occupation
and Employment;
Business Address ... Executive officer and director of GMC, investment
advisor; the business address of GMC and Mr. O'Donnell
is: 115 East Putnam Avenue, Greenwich, Connecticut
06830.
Citizenship ........ U.S.A.
Page 13 of __ Pages
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EXHIBIT 1
Page 14 of __ Pages
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Exhibit 1
AGREEMENT
The undersigned hereby agree that this statement on Schedule 13D with
respect to beneficial ownership of shares of Class A Common Stock of Koll Real
Estate Group, Inc. is filed jointly, on behalf of each of them.
Dated: July 21, 1995
BRIDGE PARTNERS, L.P.
By: CARSON STREET PARTNERS, INC.,
General Partner
By: /s/ John W. Gildea
------------------------------
Name: John W. Gildea
Title: Chief Executive Officer
and President
CARSON STREET PARTNERS, INC.
By: /s/ John W. Gildea
----------------------------------
Name: John W. Gildea
Title: Chief Executive Officer and
President
By: /s/ John W. Gildea
----------------------------------
Name: John W. Gildea
Page 15 of __ Pages
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EXHIBIT 2
Page 16 of __ Pages
<PAGE>
BRIDGE PARTNERS, L.P.
Amended and Restated
Agreement of Limited Partnership
Dated as of May 30, 1996
<PAGE>
AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
BRIDGE PARTNERS, L.P.
This Restatement of the Agreement of Limited Partnership (the
"Agreement") of BRIDGE PARTNERS, L.P. (the "Partnership"), is made as of
the 30th day of May, 1996, among Carson Street Partners, Inc., a
Delaware corporation, as General Partner of the Partnership, and those
persons listed on Schedule A annexed hereto who execute a counterpart to
this Agreement and are hereafter admitted to the Partnership as limited
partners in accordance with the provisions hereof and whose names and
addresses shall upon such admission be added to the books and records of
the Partnership ("Limited Partners").
W I T N E S S E T H :
WHEREAS, the General Partner and the Limited Partners (collectively, the
"Partners") formed a limited partnership in accordance with the Delaware Revised
Uniform Limited Partnership Act (6 Del. C. Section 17-101 et seq.) (the "Act");
WHEREAS, the General Partner and the Limited Partners entered into
an Agreement of Limited Partnership, dated as of July 13, 1995;
WHEREAS, pursuant to Article XIII Section A, the Partners executed
certain transfer and assignment documents ("Transfer Documents");
WHEREAS, pursuant to Article XIV, Section A, of the Agreement of
Limited Partnership dated as of July 13, 1995, the Partners desire to
amend and restate the Agreement of Limited Partnership;
NOW, THEREFORE, for good and valuable consideration, the receipt
and adequacy of which are hereby acknowledged, the General Partner and
the Limited Partners (Collectively, the "Partners") agree as follows:
ARTICLE I.
Formation of Partnership
The Partners hereto have heretofore formed the Partnership under
the provisions of the Act. The General Partner executed and filed a
Certificate of Limited Partnership in accordance with the provisions of
the Act. The Partners hereto shall execute all such instruments and
shall execute, file, record and/or publish such amendments and other
documents, and do any and all other acts and things as may be appropriate
to comply with the requirements for the formation of a limited partnership
under the laws of the State of Delaware. The General Partner may take such
<PAGE>
further actions as it deems necessary or advisable to permit the Partnership
to conduct business as a limited partnership in any jurisdiction.
ARTICLE II.
Name
The business of the Partnership shall be conducted under the firm name of
"Bridge Partners, L.P." or such other name, to the extent permitted by the Act,
as the General Partner shall hereafter designate in writing to the Limited
Partners.
ARTICLE III.
Definitions
For purposes of this Agreement, unless the context otherwise
requires, the following terms shall have the following respective
meanings:
"Agreement" means this Amended and Restated Agreement of Limited
Partnership, as the same may at any time or from time to time be
amended.
"Capital Account" shall mean the capital account established and
maintained for a Partner on the books and records of the Partnership in
accordance with the provisions of Article VIII hereof.
"Capital Contribution" shall mean, as to any Partner, the cash
contributed to the Partnership by such Partner in accordance with
Article VII of this Agreement.
"Certificate of Limited Partnership" means the Certificate of
Limited Partnership of the Partnership filed in the State of Delaware as
the same may at any time or from time to time be amended.
"Code" means the Internal Revenue Code of 1986, as amended from
time to time, or any similar Federal internal revenue law enacted in
substitution for the Code.
"Fiscal Year" means the calendar year.
"General Partner" means Carson Street Partners, Inc., a Delaware
corporation, and any other person or entity acting in its capacity as a
general partner of the Partnership, and any substitute therefor as
provided herein.
"Interest" means the aggregate ownership interest of each Partner
in the income, loss, distributions, capital, assets and liabilities of
the Partnership. "Limited Partnership Interest" means an Interest of a
Limited Partner and "General Partnership Interest" means the Interest of
the General Partner. When used herein without qualification, the term
"Interests" means both Limited Partnership Interests and General
Partnership Interests. Interests need not be evidenced by certificates.
2
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"Limited Partner" means any person or entity who becomes a limited partner
of the Partnership and who is listed as such on the books and records of the
Partnership.
"Partners" means the General Partner and all Limited Partners where no
distinction is required by the context in which the term is used.
"Percentage Interest" means, as to any Partner, the ratio of such Partner's
Capital Contribution to the aggregate Capital Contributions of all Partners.
"Person" means any individual, partnership, joint venture, association,
corporation, trust or other entity.
"REDLOH" means REDLOH, L.L.C., a Limited Partner, and its successors and
assigns.
"Regulations" or "Treasury Regulations" means Treasury Regulations
promulgated in final, temporary or proposed form under the Code, as such
Treasury Regulations may be amended from time to time. Any reference herein to a
specific Treasury Regulation provision shall be deemed to include a reference to
the corresponding provision of any successor provision.
"Schedule B Percentage Interest" means, with respect to each Partner, such
Partner's percentage interest, as set forth in Schedule A, in the proceeds of
the sale of the Schedule B Stock held by the Partnership.
"Schedule B Stock" means shares of capital stock of the corporation set
forth on Schedule B hereto and any securities which at any time may be issued
or received as a distribution on or in exchange for or upon conversion or
redemption of such shares.
"Schedule C Percentage Interest" means, with respect to each Partner, such
Partner's percentage interest, as set forth in Schedule A, in the proceeds of
the sale of the shares of Schedule C Stock held by the Partnership.
"Schedule C Stock" means shares of capital stock of the corporation set
forth on Schedule C hereto and any securities which at any time may be issued or
received as a distribution on or in exchange for or upon conversion or
redemption of such shares.
"Taxable Income" or "Tax Loss" for any Fiscal Year shall mean the taxable
income or loss of the Partnership for such Fiscal Year, determined in accordance
with Section 703(a) of the Code (for this purpose, all items of income, gain,
loss or deduction required to be stated separately pursuant to Section 703(a)(1)
of the Code shall be included in taxable income or loss).
"Unrecovered Capital Contribution" shall mean, as to any Partner, with
respect to either the Schedule B Stock or the Schedule C Stock, the portion of
such Partner's Capital Contribution allocated to such Stock less the amount of
any distribution pursuant to Section (D) of
3
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Article IX designated as a distribution on account of Unrecovered Capital
Contribution with respect to such Stock.
ARTICLE IV.
Purposes
A. Purposes and Business. The purpose and business of the Partnership
shall be to purchase, hold and sell the Schedule B Stock and the Schedule C
Stock and to engage in such activities or acts, including, without limitation,
the purchase, holding and sale of the securities of other companies, which may
lawfully be conducted by a limited partnership formed pursuant to the Act.
B. Powers. The Partnership shall have the power to do any and all acts
necessary, appropriate, proper, advisable, incidental or convenient to or for
the furtherance of the purposes and business described herein and for the
protection and benefit of the Partnership.
ARTICLE V.
Names and Addresses of Partners
The General Partner of the Partnership is Carson Street Partners, Inc., a
Delaware Corporation, having its principal office at 115 East Putnam Avenue,
Greenwich, Connecticut 06830. The names and addresses of the Limited Partners
shall be as set forth in the books and records of the Partnership.
ARTICLE VI.
Principal Place of Business
The principal place of business of the Partnership at which Partnership
records will be kept shall be at 115 East Putnam Avenue, Greenwich, Connecticut
06830. The General Partner may fronm time to time change the principal place of
business of the Partnership and, in such event, the General Partner shall
promptly thereafter notify the Limited Partners. The General Partner may
establish additional places of business for the Partnership when and where
required by the business of the Partnership. The address of the registered
office of the Partnership in the State of Delaware shall be c/o The Corporation
Trust Company, Corporation Trust Center, 1209 Orange Street, Wilmington, County
of New Castle, Delaware 19801. The Partnership's registered agent at that
address is The Corporation Trust Company, or such other agent as may be
designated from time to time by the General Partner.
ARTICLE VII.
Capital Contributions
A. General Partner's Contribution. The General Partner has contributed in
cash to the capital of the Partnership the amount set forth opposite such
General Partner's name in Schedule A annexed hereto. The General Partner shall
contribute $141,000 in cash to the capital of
4
<PAGE>
the Partnership by May 30, 1998. Such contribution, when made, shall
constitute part of the General Partner's Unrecovered Capital
Contribution attributable to the Schedule B Stock. The General Partner
shall, with respect to any Limited Partnership Interest owned by it,
enjoy all of the rights and privileges and be subject to all of the
obligations and duties of a Limited Partner, in addition to its rights
and privileges as General Partner.
B. Limited Partner's Contribution. Each Limited Partner shall
contribute to the capital of the Partnership in cash the amount set
forth opposite such Partner's name in Schedule A annexed hereto, as the
same may be amended, and shall each be allocated a Limited Partnership
Interest as set forth in Schedule A.
ARTICLE VIII.
Capital Accounts
A. Capital Account.
(1) A Capital Account shall be established and maintained for
each Partner on the books and records of the Partnership.
The Capital Account of a Partner shall be credited with
(a) the amount of such Partner's Capital Contribution,
and (b) such Partner's allocable share of the
Partnership's Taxable Income allocated pursuant to
Article IX; and shall be debited with (a) such Partner's
allocable share of Partnership's Tax Loss allocated
pursuant to Article IX, (b) the amount of any cash or the
value of any property distributed to, or withdrawn by,
such Partner, and (c) the amount of Code section
705(a)(2)(B) expenditures allocated to such Partner. Any
Partner to whom an Interest has been transferred shall
succeed to the Capital Account of his transferor relating
to the Partnership Interest transferred.
(2) The foregoing provisions and the other provisions of this
Agreement relating to the maintenance of Capital Accounts
are intended to comply with Regulations Section 1.704-1(b),
and shall be interpreted and applied in a manner
consistent with such Regulation.
B. Negative Capital Accounts. At no time during the term of the
Partnership or upon dissolution and liquidation thereof shall a Partner
with a negative balance in its Capital Account have any obligation to
the Partnership or the other Partners to restore such negative balance,
except (i) as may be required by law, or (ii) in respect of any negative
balance resulting from a withdrawal of capital or distribution from the
Partnership in contravention of this Agreement.
C. General Partner Not Liable for Return of Capital or Profits.
Notwithstanding anything to the contrary contained herein, the General
Partner shall not be liable for the distribution or return of the
Capital Contributions or profits of the Limited Partners, or any
portion
5
<PAGE>
thereof, it being expressly agreed that any such distribution, return or payment
as may be made at any time or from time to time shall be made solely from the
assets of the Partnership.
ARTICLE IX.
Profits and Losses; Distributions
A. Fiscal Year; Fiscal Period; Taxable Year. The fiscal year (the
"Fiscal Year") of the Partnership for Partnership accounting purposes shall be
the same as the taxable year of the Partnership for federal income tax purposes.
Except as otherwise required by the Code, the taxable year of the Partnership
shall end on December 31st.
B. Accounting Method. For Partnership accounting purposes and
federal income tax purposes, the Partnership shall use the accrual method of
accounting.
C. Allocations of Taxable Income and Tax Loss. Gain on sale of
the Schedule B Stock shall be allocated first so as to cause the Capital Account
of each Partner on account of the Schedule B Stock to equal such Partner's
Unrecovered Capital Contribution with respect to the Schedule B Stock, and then
shall be allocated to the Partners in accordance with their Schedule B
Percentage Interests. All other Taxable Income of the Partnership on account of
the Schedule B Stock shall be allocated in accordance with the Schedule B
Percentage Interests. Gain on sale of the Schedule C Stock shall be allocated
first so as to cause the Capital Account of REDLOH on account of the Schedule C
Stock to equal such Partner's Unrecovered Capital Contributions with respect to
the Schedule C Stock, and then shall be allocated to the Partners in accordance
with their Schedule C Percentage Interests. All other Taxable Income of the
Partnership on account of the Schedule C Stock shall be allocated in accordance
with the Schedule C Percentage Interests. All Tax Losses of the Partnership on
account of either the Schedule B Stock or Schedule C Stock shall be allocated in
accordance with the Partners' relative positive Capital Account balances with
respect to such Stock.
D. Distributions. The General Partner shall have sole discretion
in determining the amount and frequency of distributions; provided, that the
General Partner shall make a distribution to the Partners in accordance with the
following provisions of this Subsection IX.D of the amount of any cash dividends
or other cash distributions received on account of the Schedule B Stock or
Schedule C Stock promptly upon, and in any event within 5 days of, the
Partnership's receipt of same, unless a majority in interest of the Limited
Partnership Interests otherwise require; and provided further that the General
Partner, upon request of a majority of the Limited Partnership Interests shall
make such other distributions at such times and in such amounts as a majority in
interest of the Limited Partnership Interests shall request; and provided
further, that upon the request of REDLOH, REDLOH may require a distribution in
kind of the Schedule C Stock; and provided further however, that no distribution
shall be made that would render the Partnership insolvent unless a majority in
interest (over 50%) of all Interests shall determine otherwise. Proceeds of sale
of the Schedule B Stock shall be distributed first, to the Partners to the
extent of their Unrecovered Capital Contributions with respect to the Schedule B
Stock and then to the Partners in accordance with their Schedule B Percentage
Interests. Proceeds of sale of Schedule C Stock shall be distributed first to
REDLOH to the extent of its Unrecovered Capital
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Contribution with respect to the Schedule C Stock, and then to the Partners in
accordance with their Schedule C Percentage Interests. Notwithstanding the
foregoing, if the Partnership recognizes a loss on the sale of either the
Schedule B Stock or the Schedule C Stock, the amount distributable to the
General Partner shall be reduced and the amount distributable to REDLOH shall be
increased such that the General Partner shall receive aggregate distributions on
account of the Schedule B Stock and the Schedule C Stock in an amount equal to
11% of the aggregate net profit recognized by the Partnership on both the
Schedule B Stock and Schedule C Stock. Prior to any distribution of sales
proceeds hereunder, the amount of any unrealized loss on either Schedule B Stock
or Schedule C Stock owned by the Partnership shall be determined and taken into
account pursuant to the prior sentences in determining the amount distributable
to the General Partner and REDLOH. To the extent gain or other distributions
have previously been distributed to the General Partner, the General Partner
agrees to pay all or a portion of such distributions to REDLOH to the extent
necessary such that the General Partner's aggregate distribution on account of
the sale of the Schedule B Stock and Schedule C Stock does not exceed 11% of the
aggregate net profit recognized by the Partnership on the Schedule B and
Schedule C Stock. Notwithstanding the foregoing, in the event of a distribution
in kind of the Schedule C Stock, REDLOH shall be entitled to all shares of
Schedule C Stock held by the Partnership subject to its obligation to pay the
General Partner an amount equal to 11% of the aggregate net profit (after taking
into account any loss on account of the Schedule B Stock) recognized by REDLOH
on the Schedule C Stock in accordance with the provisions of this Section IX.D.
Dividends on account of either the Schedule B Stock or the Schedule C Stock
shall be distributed to the Partners in accordance with their respective
Schedule B Percentage Interests or Schedule C Percentage Interests, as
applicable.
ARTICLE X.
Management and Operation of Partnership Business
A. Management of Partnership Business. The Partnership shall be managed
exclusively by the General Partner and the conduct of the Partnership's business
shall be controlled and conducted solely by the General Partner in accordance
with this Agreement. The General Partner shall not be required to devote full
time to the affairs of the Partnership.
B. Authority of General Partner. In addition to and not in limitation
of any rights and powers conferred by law or other provisions of this
Agreement, and except as limited, restricted or prohibited by the express
provisions of this Agreement, the General Partner shall have and may exercise,
on behalf of the Partnership, all powers and rights necessary, proper,
convenient or advisable to effectuate and carry out the purposes, business and
objectives of the Partnership and shall, except as otherwise provided in this
Agreement or the Act, have and possess the same rights and powers as any
general partner in a partnership without limited partners formed under the laws
of the State of Delaware.
C. Title to Assets of the Partnership. Title to assets of the
Partnership, whether real, personal or mixed or tangible or intangible, shall be
deemed to be owned by the Partnership as an entity, and no Partner, individually
or collectively, shall have any ownership interest in such assets of the
Partnership or any portion thereof. Title to any or all of the assets of the
Partnership
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may be held in the name of the Partnership, the General Partner or
of one or more nominees, as the General Partner may determine. The General
Partner declares and warrants that any assets of the Partnership for which legal
title is held in the name of the General Partner shall be held in trust by the
General Partner for the use and benefit of the Partnership in accordance with
the terms and provisions of this Agreement. All assets of the Partnership shall
be recorded as the property of the Partnership on its books and records,
irrespective of the name in which legal title to such assets of the Partnership
is held.
D. Liability of the General Partner and General Partner Representation.
The General Partner, and its affiliates, officers, directors, stockholders,
employees and agents of their respective affiliates shall not have any liability
to the Partnership or to any Partner for any loss suffered by the Partnership
which arises out of any action or inaction of the General Partner or such person
from and after the date of this Agreement if the General Partner or such person,
in good faith, determined that such course of conduct was in, or not opposed to,
the best interests of the Partnership and such course of conduct did not
constitute fraud, willful misconduct or criminal conduct. The General Partner
represents and warrants to the Partnership and to each Limited Partner that
neither the General Partner, nor any of its affiliates, officers, directors,
stockholders, employees, agents or agents of their respective affiliates, (a) is
bound by any agreement, or has performed or taken any action prior to the date
of this Agreement, inconsistent with the General Partner's duties and
obligations as General Partner under this Agreement or (b) has entered into, is
bound by or is aware of any agreement or other arrangement pursuant to which any
of the Schedule B Stock or the Schedule C Stock to be purchased by the
Partnership is subject to any lien, encumbrance, security interest, equity,
claim or rights of others of whatever nature, other than those specifically
disclosed in the Securities Purchase Agreement, dates as of July 13, 1995, among
Libra Invest and Trade Ltd., Gallant Overseas Inc., Parkway Ventures SA and the
Partnership and the Amended and Restated Stock Purchase Agreement, dated as of
May 30, 1996, among UNC Incorporated and the purchasers signatory thereto,
respectively.
5. Exculpation; Indemnification.
1. The General Partner, and its affiliates and all officers,
directors, stockholders, employees and agents of the General
Partner and its affiliates and all officers, agents and employees
of the Partnership who are Partners shall not be liable to the
Partnership, to Limited Partners or to any person who has
acquired an interest in the Partnership for any losses sustained
or liabilities incurred, including monetary damages, as a result
of any act or omission of the General Partner or any such other
person from and after the date of this Agreement if the conduct
of the General Partner or such other person did not constitute
fraud, willful misconduct or criminal conduct.
2. To the fullest extent permitted by law, the Partnership shall
indemnify and hold harmless the General Partner, its affiliates
and all officers, directors, stockholders, employees and agents
of the General Partner and its affiliates and all officers,
agents and
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employees of the Partnership who are Partners (for
purposes of this Section E, individually, an "Indemnitee")
from and against any and all losses, judgments,
liabilities, expenses (including without limitation legal
fees and expenses), and other amounts arising from any and
all claims, demands, actions, suits or proceedings, civil,
criminal, administrative or investigative, in which the
Indemnitee may be involved, or threatened to be involved,
as a party of otherwise, by reason of his, her or its
management of the affairs of the Partnership or the
General Partner or status as General Partner, an affiliate
thereof, or a partner, director, officer, employee,
stockholder or agent thereof or an officer, agent or
employee of the Partnership or a person serving at the
request of the Partnership, the General Partner or any
affiliate thereof in another entity in a similar capacity,
which relates to or arises out of the Partnership, its
property, business or affairs or the General Partner, its
properties, businesses or affairs or any document filed
with or submitted to the Securities and Exchange
Commission by the Partnership or any indemnification of
underwriters given in connection therewith, regardless of
whether the Indemnitee continues to be the General
Partner, an affiliate thereof or an officer, partner,
director, employee, stockholder or agent thereof or an
officer, agent or employee of the Partnership at the time
any such liability or expense is paid or incurred, and
regardless of whether the liability or expense accrued at
or relates to, in whole or in part, any time before, on or
after the date hereof; provided, however, that this
indemnification shall not apply to any liability or
expense that results from fraud, willful misconduct or
criminal conduct of the Indemnitee. Any indemnification
pursuant to this Section E shall be made only out of the
assetes of the Partnership.
3. An Indemnitee shall not be entitled to indemnification
under this Section E with respect to any claim, issue or
matter in which it has been adjudged liable for fraud,
willful misconduct or criminal conduct unless and only to
the extent that the court in which such action was
brought, or another court of competent jurisdiction,
determines upon application that, despite the adjudication
of liability, but in view of all of the circumstances of
the case, the Indemnitee is fairly and reasonably entitled
to indemnification for such liabilities and expenses as
the court may deem proper.
4. To the fullest extent permitted by law, expenses
(including legal fees) incurred by an Indemnitee in
defending any claim, demand, action, suit or proceeding
shall, from time to time, be advanced by the Partnership
prior to the final disposition of such claim, demand,
action, suit or proceeding upon receipt by the Partnership
of an
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undertaking by or on behalf of the Indemnitee to repay
such amount if it shall be determined that the Indemnitee
is not entitled to be indemnified as authorized in this
Section E.
5. The indemnification provided by this Section E shall be in
addition to any other rights to which an Indemnitee may be
entitled as a matter of law or otherwise, both as to
action in the Indemnitee's capacity as the General
Partner, an affiliate thereof or a partner, director,
officer, employee, stockholder or agent thereof or the
Partnership and as to action in any other capacity which
relates to or arises out of the Partnership or the
property, business or affairs of the Partnership or the
General Partner, and shall continue as to an Indemnitee
who has ceased to serve in such capacity and shall inure
to the benefit of the heirs, successors, assigns and
administrators of an Indemnitee.
6. In no event may an Indemnitee subject the Limited Partners
or any Limited Partner's assignee to personal liability by
reason of these indemnification provisions.
7. An Indemnitee shall not be denied indemnification in whole
or in part under this Section E because the Indemnitee had
an interest in the transaction with respect to which the
indemnification applies if the transaction was otherwise
permitted by the terms of this Agreement.
8. The provisions of this Section E are for the benefit of
the Indemnitees and their heirs, successors, assigns,
administrators and personal representatives and shall not
be deemed to create any rights for the benefit of any
other persons. The provisions of this Section E shall not
be amended in any way that would adversely affect the
Indemnitees who are Partners without the consent of the
Partner that is adversely affected.
F. Expenses.
1. The Partnership shall pay all organization expenses
incurred in the creation of the Partnership. The foregoing
expenses may be paid directly by the Partnership and/or
the Partnership may reimburse the General Partner for
advancing payment of such expenses on the Partnership's
behalf. Organization expenses shall mean those expenses
incurred in forming and qualifying the Partnership and any
other expenses actually incurred and directly or
indirectly related to the organization of the Partnership,
including, but not limited to, expenses such as: (a)
initial and ongoing registration fees, filing fees, and
taxes, (b) the costs of preparing, printing, amending,
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supplementing, and distributing this Agreement, (c)
travel, telephone and other expenses in connection with
the organization of the Partnership, (d) accounting,
auditing and legal fees (including disbursements related
thereto) incurred in connection therewith, and (e) any
extraordinary expenses (including, but not limited to,
legal claims and liabilities and litigation costs and any
permitted indemnification associated therewith) related
thereto.
2. All ongoing charges, costs and expenses of the
Partnership's operation and administration will be paid
by the Partnership including, but not limited to, (a)
costs related to the preparation of monthly, annual and
other reports required by law or this Agreement; (b)
periodic fees of legal counsel and independent auditors
and accountants; (c) postage, insurance and filing fees;
(d) rent, salaries and other general "overhead" expenses
incurred by the General Partner in performing services
for the Partnership; and (e) extraordinary expenses
(including, but not limited to, legal claims and
liabilities and litigation costs and any indemnification
related thereto).
G. Compensation of General Partner. The General Partner shall not
be entitled to any fees, commissions or other compensation from the
Partnership for any services rendered to or performed for the
Partnership except as may otherwise be expressly provided herein.
H. Other Business Activities of Partners. Except as otherwise
agreed in writing by any of the Partners hereto, any Partner or
affiliate thereof may have business interests or may engage in other
business ventures of any nature or description whatsoever in addition to
those relating to the Partnership, whether presently existing or
hereafter created, and may compete, directly or indirectly, with the
business of the Partnership and such activities shall not be deemed
wrongful or improper. No Partner or affiliate thereof shall incur any
liability to the Partnership or any other Partner as the result of such
Partner's pursuit of such other business interests and ventures and
competitive activity, and neither the Partnership nor any of the other
Partners shall have any right to participate in such other business
interests or ventures or to receive or share in any income or profits
derived therefrom.
I. Tax Matters Partner. The General Partner is hereby designated
as the "Tax Matters Partner" in accordance with Section 6231(a)(7) of
the Code, provided that the General Partner shall take no action other
than providing notices to the other Partners without the prior consent
of REDLOH.
J. Withdrawal and Removal of the General Partner.
(1) The General Partner may withdraw voluntarily as the General
Partner of the Partnership upon receipt of the prior written consent of
the Limited Partners holding a majority in interest (over 50%) of all
Interests (not including any Interests held by the General Partner).
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(2) The General Partner may be removed upon the affirmative vote of
the Limited Partners together holding a majority in interest (over 50%)
of all Limited Partnership Interests. Any such action for the removal of
the General Partner must also provide for the election of a new general
partner.
ARTICLE XI.
Status of Limited Partners
A. No Management or Control; Limited Liability. The Limited
Partners shall not participate in the management or control of the
Partnership's business nor shall they transact any business for the
Partnership or have the power to sign for or bind the Partnership, said
powers being vested solely and exclusively in the General Partner.
Assuming such Limited Partner does not participate in the control of the
business of the Partnership, no Limited Partner shall be bound by, or be
personally liable for, the expenses, liabilities or obligations of the
Partnership in excess of his Capital Contribution plus his share of the
Partnership's assets and profits remaining in the Partnership, if any,
and such other amounts as he may be liable for pursuant to the Act.
Except as otherwise expressly required by law, a Limited Partner, or
assignee of a Limited Partner as such, shall have no liability in excess
of (i) the amount of its Capital Contribution, (ii) its share, if any,
of any undistributed profits and assets of the Partnership, (iii) its
obligation to make other payments expressly provided for in this
Agreement and (iv) the amount of any distributions wrongfully
distributed to it. For purposes of Section 17-607(b) of the Act, no
Limited Partner or assignee of a Limited Partner that receives a
distribution in violation of Section 17-607(a) of the Act shall be
deemed to know at the time of the distribution that the distribution
violated Section 17-607(a) of the Act without actual knowledge thereof.
The payment of any such money or distribution of any such property to a
Limited Partner or assignee of a Limited Partner, whether or not deemed
to be a return of capital, shall be deemed to be a compromise within the
meaning of Section 17-502(b) of the Act, and the Limited Partner or
assignee of a Limited Partner receiving any such money or property shall
not be required to return any such money or property to any person, the
Partnership or any creditor of the Partnership. Except as provided in
the Act, each Limited Partner's Interest shall be fully paid and no
assessment shall be made against any Limited Partner. No salary shall be
paid to any Limited Partner in his capacity as a Limited Partner, nor
shall any Limited Partner have a drawing account or earn interest on his
contribution.
B. Rights, Duties, etc. The Limited Partners shall have the
following rights, powers, privileges, duties and liabilities:
1. The Limited Partners shall have the right to obtain
information of all things affecting the Partnership and
to examine, during business hours, all of the books and
records of the Partnership, for any purpose. The Limited
Partners shall be entitled to maintain custody, as agent
for the Partnership, of any certificates representing
Schedule Stock B or Schedule Stock C or any other
securities at any time acquired by the Partnership.
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2. The Limited Partners shall receive from the Partnership
the share of the distributions provided for in this
Agreement in the manner and at the times provided for in
this Agreement.
3. Limited Partners shall not have the right to demand the
return of their capital except upon the dissolution and
winding up of the Partnership and then, only as and when
provided in Article XVI. Except as provided in paragraph D
of Article IX, in no event shall a Limited Partner be
entitled to demand or receive property other than cash. No
Limited Partner shall have priority over any other Limited
Partner either as to the return of capital or as to
Taxable Income, Tax Loss or distributions. No Limited
Partner shall have the right to bring an action for
partition against the Partnership.
C. Employees, Agents or Officers of the Partnership or the General
Partner. A Limited Partner or an employee, agent or officer of a Limited
Partner may also be an employee, agent or officer of the Partnership or
the General Partner. The existence of these relationships and acting in
such capacities will not result in a Limited Partner being deemed to be
participating in the conduct or control of the business of the
Partnership.
ARTICLE XII.
Books of Account and Reports
A. Books of Account. Proper books of account shall be kept by the
General Partner and there shall be entered therein all transactions,
matters and things relating to the Partnership's business as are usually
entered into books of account kept by persons engaged in a business of
like character. The books of account shall be kept at the principal
office of the Partnership and each Limited Partner (or any duly
constituted designee of a Limited Partner) shall have, at all times
during normal business hours, free access to and the right to inspect
and copy the same for any purpose.
B. Tax Information. Appropriate tax information (adequate to enable
each Limited Partner to complete and file his federal tax return) shall
be delivered to each Limited Partner as soon as practicable following
the end of each year, but in no event later than 90 days after the end
of each Fiscal Year.
C. Calculation of Capital Account Balances. The Capital Account
balance of each Interest will be calculated at the end of each Fiscal
Year. The General Partner shall distribute to all Limited Partners the
most recently calculated Capital Account balance of each Interest within
90 days after the end of each Fiscal Year.
D. Reports. The General Partner shall provide to each Limited
Partner annual financial statements of the Partnership for each Fiscal
Year, as well as such reports and information, if any, as it may deem
necessary or appropriate.
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E. Certificates of Limited Partnership. Except as otherwise
provided in the Act or this Agreement, the General Partner shall not be
required to mail a copy of any Certificates of Limited Partnership filed
with the Secretary of State of the State of Delaware to any Limited
Partner; however, such certificates shall be maintained at the principal
business office of the Partnership and available for inspection and
copying by the Limited Partners in accordance with the provisions of
this Article XII.
ARTICLE XIII.
Transfers of Partnership Interests
A. Transfer of Limited Partnership Interest. A Limited Partner may
not sell, assign, transfer or otherwise dispose of, or pledge,
hypothecate or in any manner encumber all or any portion of his Interest
or any part of his right, title and interest in the capital or profits
of the Partnership without the prior written consent of all of the
non-transferring Partners, which consent can be given or withheld by any
such non-transferring Partner in his or its sole and absolute
discretion.
B. Transfer of General Partnership Interest. The General Partner
may not sell, assign, transfer or otherwise dispose of, or pledge,
hypothecate or in any manner encumber all or any portion of his Interest
or any part of his right, title and interest in the capital or profits
of the Partnership without the prior written consent of all of the
non-transferring Partners, which consent can be given or withheld by
any such non-transferring Partner in his or its sole and absolute
discretion.
C. Miscellaneous.
1. Any person admitted to the Partnership as a Partner shall
be subject to all of the provisions of this Agreement as
if an original signatory hereto.
2. No Limited Partnership Interest may be subdivided for
resale.
3. The General Partner shall cause the Partnership to make
the election referred to in Section 754 of the Code, and
any similar election provided by state or local law, or
any similar provision enacted in lieu thereof, if
requested by any Partner.
4. Each Limited Partner hereby agrees to indemnify and hold
harmless the Partnership and each Partner against any and
all losses, damages, liabilities or expenses (including,
without limitation, tax liabilities or loss of tax
benefits) arising, directly or indirectly, as a result of
any transfer or purported transfer by such Limited Partner
in violation of any provision contained in this Article
XIII.
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ARTICLE XIV.
Amendment of Limited Partnership Agreement and Meetings
A. Amendments to the Agreement.
1. Amendments to this Agreement may be proposed by any Partner.
Except as specifically provided herein, any such amendment will
become effective upon the vote or written consent of the Partners
holding a majority in interest (over 50%) of all Interests.
Notwithstanding the foregoing, no amendment to this Agreement
which alters the provisions of Articles VII or IX hereof may be
made without the consent of each Partner adversely affected
thereby.
2. Any provision to the contrary contained in subparagraph (1) hereof
notwithstanding, the General Partner may, without the approval of
the Limited Partners, make such amendments to this Agreement which
(a) are necessary to add to the representations, duties or
obligations of the General Partner or surrender any right or power
granted to the General Partner herein for the benefit of the
Limited Partners, (b) are necessary to cure any ambiguity, to
correct or supplement any provision herein which may be
inconsistent with any other provision herein, or to make any other
provisions with respect to matters or questions arising under
this Agreement which will not be inconsistent with the provisions
of this Agreement or (c) the General Partner deems advisable or
considers necessary to comply with any applicable law, provided
however, that no amendment shall be adopted pursuant to this
clause (c) unless the adoption thereof (i) is for the benefit of,
or not adverse to, the interests of the Limited Partners; and (ii)
does not adversely affect the limited liability of the Limited
Partners or the status of the Partnership as a partnership for
federal income tax purposes.
3. Upon amendment of this Agreement, the Certificate of Limited
Partnership shall also be amended, if required by the Act, to
reflect such change.
B. Action Without a Meeting. Any action required or permitted to be taken
by Partners by vote may be taken without a meeting on written consent, setting
forth the actions so taken, signed by the holders of the Interests having not
less than the minimum number of votes that would be necessary to authorize or
take such action at a meeting at which holders of all Interests entitled to
vote thereof were present and voted.
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ARTICLE XV.
Term
The term for which the Partnership is to exist shall commence on the
date of the filing of the Certificate of Limited Partnership in the State of
Delaware, and shall terminate on December 31, 2015, unless (i) sooner dissolved
pursuant to the provisions of Article XVI hereof or as otherwise provided by law
or (ii) extended beyond December 31, 2015 pursuant to an amendment hereto
executed by all the Partners.
ARTICLE XVI.
Termination and Dissolution
A. Events Requiring Termination and Dissolution. The Partnership shall be
terminated and dissolved upon the happening of any of the following events:
1. The expiration of its term as provided in the Agreement
2. The filing of a certificate of dissolution or revocation of the
charter of the General Partner, or the removal, adjudication of
bankruptcy or insolvency of the General Partner, or the occurrence
of any other event which under the Act causes the General Partner
to cease to be the General Partner of the Partnership, or upon the
vote for the removal of the General Partners by the Limited
Partners holding a majority in interest (over 50%) of all
Interests (not including any Interests held by the General
Partner) each of the foregoing events an "Event of Withdrawal"),
unless (a) at the time there is at least one remaining General
Partner and that remaining General Partner carries on the business
of the Partnership or (b) within ninety (90) days of such Event of
Withdrawal all the remaining Partners agree in writing to continue
the business of the Partnership and to the selection, effective as
of the date of such event, of one or more successor General
Partners. If the Partnership is dissolved as a result of an Event
of Withdrawal of the General Partner and a failure of the Partners
to continue the business of the Partnership and appoint a
successor general partner as provided in (b) above, within one
hundred and twenty (120) days of such Event of Withdrawal, Limited
Partners holding a majority in interest (over 50%) of all Interest
(not including any Interests held by the General Partner) may
elect to reconstitute and continue the business of the Partnership
by forming a new limited partnership (the "Reconstituted
Partnership") on the same terms and provisions as set forth in
this Agreement. Any such election must also provide for the
election of a general partner to the Reconstituted Partnership. If
such an election is made, all Limited Partners of the partnership
shall be
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bound thereby and continue as limited partners of the
Reconstituted Partnership.
3. The vote of Limited Partners holding a majority in interest (over
50%) of all Limited Partnership Interests to dissolve the
Partnership.
4. The occurrence of any event which would make unlawful the
continued existence of the Partnership.
The death, legal disability, bankruptcy, insolvency, dissolution, or withdrawal
of any Limited Partner (as long as such Limited Partner is not the sole Limited
Partner of the Partnership) shall not result in the dissolution or termination
of the Partnership, and such Limited Partner, his estate, custodian or personal
representative shall have no right to withdraw or value such Limited Partner's
Limited Partnership Interest. Each Limited Partner expressly agrees that in the
event of his death, he waives on behalf of himself and his estate, and he
directs the legal representative of his estate and any person interested
therein to waive, the furnishings of any inventory, accounting or appraisal
of the assets of the Partnership and any right to an audit or examination
of the books of the Partnership.
B. Distributions on Termination and Dissolution. Upon the dissolution of
the Partnership, the General Partner (or in the event the dissolution is caused
by the filing of a certificate of dissolution or the revocation of the charter
of a General Partner or its withdrawal, removal, bankruptcy or insolvency, such
person as the majority in interest of the Limited Partners may propose and
approve) shall act as liquidating trustee and shall take full charge of the
Partnership assets and liabilities. Thereafter, the business and affairs of the
Partnership shall be wound up and all assets shall be liquidated as promptly as
is consistent with obtaining the fair value thereof, and the proceeds therefrom
shall be applied and distributed in the following order of priority: (1) to the
expenses of liquidation and termination and to creditors, including Partners who
are creditors, to the extent otherwise permitted by law, in satisfaction of
liabilities of the Partnership (whether by payment or by establishment of
reserves) other than liabilities for distributions to Partners, and (2) to the
General Partner and each Limited Partner in accordance with Section D of Article
IX, less any amount owning by such Partner to the Partnership, after giving
effect to all adjustments made pursuant to Article IX and all distributions
theretofore made to the Partners pursuant to Article IX. For purposes of the
distribution of assets, the General Partner shall be deemed a creditor of the
Partnership for any expenses incurred by the General Partner for which the
Partnership is obligated to make reimbursement.
C. Certificate of Cancellation. Following the dissolution and distribution
of the assets of the Partnership, the General Partner shall cause a certificate
of cancellation to be filed in accordance with the Act.
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ARTICLE XVII.
Limitation on Liability; Litigation
A. Limitation on Liability. Except as otherwise provided in this Agreement
and as otherwise provided under Delaware law, no Limited Partner shall be liable
for claims against or debts of the Partnership in excess of his Capital
Contribution and his share of the Partnership's assets and undistributed
profits. In addition, and subject to the exceptions set forth in the immediately
preceding sentence, the Partnership shall not make a claim against a Limited
Partner with respect to amounts distributed to such Partner or amounts received
by such Partner upon redemption or any exchange of all or any portion of his
Interest unless the net assets of the Partnership (which shall not include any
right of contribution from the General Partner except to the extent previously
made by it pursuant to this Agreement) shall be insufficient to discharge the
liabilities of the Partnership which shall have arisen prior to the payment of
such amounts.
B. Litigation. The General Partner is hereby authorized to prosecute,
defend, settle or compromise actions or claims at law or in equity at the
Partnership's expense as may be necessary or proper to enforce or protect the
Partnership's interests. The General Partner shall satisfy any judgment, decree
or decision of any court, board or authority having jurisdiction or any
settlement of any suit or claim prior to judgment or final decision thereon,
first, out of any insurance proceeds available therefor, next, out of the
Partnership's assets, and thereafter out of the assets of the General Partner.
ARTICLE XVIII.
Miscellaneous
A. Notices. All notices or communications under this Agreement shall be in
writing and shall be effective upon personal delivery, or if sent by mail,
postage prepaid, or if telegraphed, by prepaid telegram; and addressed, in each
such case, to the address set forth in the books and records of the Partnership
or such other address as he may specify in writing, of the party to whom such
notice is to be given, upon the deposit of such notice in the United States
mail.
B. Headings. Article and Paragraph titles or captions contained in this
Agreement are inserted only as a matter of convenience and for reference and in
no way define, limit, extend or describe the scope of this Agreement or the
intent of any provision hereof.
C. English Usage. Whenever the single number is used in this Agreement and
when required by the context, the same shall include the plural, and the
masculine gender shall include the feminine and neuter genders and the word
"persons" shall include invididuals, corporations, firms, partnerships, trusts
or other forms of associations.
D. Counterparts. This Agreement may be executed in several counterparts,
and all so executed shall constitute one agreement, binding on all of the
Partners hereto, notwithstanding that all the Partners are not signatory to the
original or the same counterpart.
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E. Binding Nature of Agreement. The terms and provisions of this
Agreement shall be binding upon and inure to the benefit of the heirs,
custodians, executors, estates, administrators, personal
representatives, successors and assigns of the respective Partners. For
purposes of determining the rights of any Partner or assignee hereunder,
the Partnership and the General Partner may rely upon the Partnership
records as to who are Partners and assignees and all Partners and
assignees agree that their rights shall be determined and that they
shall be bound thereby.
F. Governing Law. The validity and construction of this Agreement
and all amendments hereto shall be governed by the laws of the State of
Delaware.
G. Creditors. None of the provisions of this Agreement shall be
for the benefit of or enforceable by any creditors of the Partnership.
H. Severability. In the event that any provision of this
Agreement shall be declared invalid or unenforceable, such invalidity or
unenforceability shall not affect the validity or enforceability of the
other provisions of this Agreement, it being hereby agreed that such
provisions are severable and that this Agreement shall be construed in
all respects as if such invalid or unenforceable provision were omitted.
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<PAGE>
IN WITNESS WHEREOF, the Partners hereto have hereunto set their
repsective hands as of the day and year first above written.
GENERAL PARTNER:
CARSON STREET PARTNERS, INC.
By: ____________________________________________
LIMITED PARTNERS:
________________________________________________
John Gildea
________________________________________________
William P. O'Donnell
REDLOH, L.L.C.
By: ____________________________________________
Name:
Title: President
________________________________________________
Richard H. Carrigan
20
<PAGE>
SCHEDULE A
<TABLE>
<CAPTION>
SCHEDULE B SCHEDULE C
SCHEDULE B SCHEDULE C PERCENTAGE PERCENTAGE
GENERAL PARTNER: CONTRIBUTION CONTRIBUTION INTEREST INTEREST
- ---------------- -------------- -------------- ---------- ----------
<S> <C> <C> <C> <C>
Carson Street Partners, Inc. .......... $ 52,555.00 -- 11.2620% 11.0%
LIMITED PARTNERS:
John Gildea ........................... $ 150,000.00 -- 2.5322%
William P. O'Donnell .................. $ 75,000.00 -- 1.2701%
REDLOH, L.L.C. ........................ $4,677,905.00 $14,100,000 79.2193% 89.0%
Richard H. Carrigan ................... $ 300,000.00 -- 5.7083%
-------------- ----------- --------- ---------
TOTAL ................................. $5,255,460.00 $14,100,000 100% 100%
</TABLE>
<PAGE>
SCHEDULE B
Koll Real Estate Group, Inc.
<PAGE>
SCHEDULE C
UNC Incorporated
