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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
Wilshire Real Estate Investment Trust Inc.
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(Name of Issuer)
Common Stock, par value $0.0001 per share
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(Title of Class of Securities)
971892104
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(CUSIP Number)
Value Partners, Ltd.
Suite 4660 West
2200 Ross Avenue
Dallas, Texas 75201
Attn: Timothy G. Ewing
(214) 522-2100
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(Name, Address, Telephone Number of Person Authorized to Receive Notices and
Communications)
February 1, 1999
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(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 that is the subject of this Schedule 13D, and is filing this
schedule because of Rule Sections 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g),
check the following box [x].
Note: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See Rule 13d-7(b) for other
parties to whom copies are to be sent.
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
(the "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).
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CUSIP NO. 971892104 13D
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1 NAMES OF REPORTING PERSON
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Value Partners, Ltd., 75-2291866
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [ ]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS
WC
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED [ ]
PURSUANT TO ITEM 2(d) OR 2(e)
N/A
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
Texas
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NUMBER OF SHARES BENEFICIALLY 7 SOLE VOTING POWER
OWNED BY EACH REPORTING
PERSON WITH 1,000,000
--------------------------------
8 SHARED VOTING POWER
0*
--------------------------------
9 SOLE DISPOSITIVE POWER
1,000,000
--------------------------------
10 SHARED DISPOSITIVE POWER
0*
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,000,000*
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES [ ]
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
8.7%
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14 TYPE OF REPORTING PERSON
PN
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*But see Item 5.
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CUSIP NO. 971892104 13D
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1 NAMES OF REPORTING PERSON
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Ewing & Partners, 75-2741747
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [ ]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS
N/A
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED [ ]
PURSUANT TO ITEM 2(d) OR (e)
N/A
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
Texas
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NUMBER OF SHARES BENEFICIALLY 7 SOLE VOTING POWER
OWNED BY EACH REPORTING
PERSON WITH 0
-------------------------------
8 SHARED VOTING POWER
1,000,000*
-------------------------------
9 SOLE DISPOSITIVE POWER
0
-------------------------------
10 SHARED DISPOSITIVE POWER
1,000,000*
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,000,000*
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES [ ]
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
8.7%*
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14 TYPE OF REPORTING PERSON
PN
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*But See Item 5.
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CUSIP NO. 971892104 13D
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1 NAMES OF REPORTING PERSON
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Timothy G. Ewing
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [ ]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS
N/A
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) OR 2(e) [ ]
N/A
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States of America
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NUMBER OF SHARES BENEFICIALLY 7 SOLE VOTING POWER
OWNED BY EACH REPORTING
PERSON WITH 0
-------------------------------
8 SHARED VOTING POWER
1,000,000*
-------------------------------
9 SOLE DISPOSITIVE POWER
0
-------------------------------
10 SHARED DISPOSITIVE POWER
1,000,000*
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,000,000*
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES [ ]
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
8.7%*
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14 TYPE OF REPORTING PERSON
IN
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*But See Item 5.
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Item 1. Security and Issuer
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This Schedule 13D relates to shares of the common stock, par value $0.0001
per share (the "Common Stock"), of Wilshire Real Estate Investment Trust Inc.
(the "Company"), whose principal executive offices are located at 1776 SW
Madison Street, Portland, Oregon 97205.
Item 2. Identity and Background
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(a)-(b) Value Partners, Ltd. ("Value Partners") is a Texas limited
partnership. Ewing & Partners, a Texas general partnership, is the general
partner of Value Partners. Timothy G. Ewing and Ewing Asset Management, Inc.,
a Texas limited liability company ("EAM"), are the general partners of Ewing &
Partners, and Mr. Ewing is the managing general partner of Ewing & Partners.
EAM is controlled by Mr. Ewing. The principal place of business for Value
Partners, Ewing & Partners, EAM and Mr. Ewing is Suite 4660 West, 2200 Ross
Avenue, Dallas, Texas 75201.
Value Partners, Ewing & Partners and Mr. Ewing are sometimes hereinafter
referred to as the "Reporting Persons."
(c) The principal business of Value Partners is investment in and trading
of capital stocks, warrants, bonds, notes, debentures and other securities. The
principal business of Ewing & Partners is the management of Value Partners. The
principal business of EAM is being a general partner of Ewing & Partners. The
principal occupation of Mr. Ewing is general partner of Ewing & Partners.
(d) During the last five years, none of the Reporting Persons nor EAM has
been convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors).
(e) During the last five years, none of the Reporting Persons nor EAM has
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.
(f) Value Partners is a Texas limited partnership, Ewing & Partners is
a Texas general partnership and EAM is a Texas limited liability company. Mr.
Ewing is a citizen of the United States of America.
Item 3. Source and Amount of Funds or Other Consideration
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Value Partners holds an aggregate of 1,000,000 shares of Common Stock. The
funds for the purchases of these shares aggregated $10.1 million and were
derived from the working capital of Value Partners.
1
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Item 4. Purpose of Transaction
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The shares of Common Stock purchased by Value Partners have been acquired
for investment purposes. Value Partners may make additional purchases of Common
Stock either in the open market or in private transactions depending on its
evaluation of the Company's business, financial condition, prospects, the market
for the Common Stock, other opportunities available to Value Partners, general
market and economic conditions and other future developments. Depending on the
same factors, Value Partners may decide to sell all or part of its investment in
the Common Stock, although it has no current intention to do so.
Although Value Partners' purchases of Common Stock have been made for
investment, as a result of recent losses reported by the Company, Value Partners
intends to evaluate means of enhancing the value of its and other shareholders'
investment in the Common Stock of the Company, including without limitation the
appropriateness of (i) changes in the board of directors or management of the
Company; (ii) the composition of the assets of the Company; (iii) the investment
policies and practices of the Company; (iv) the Company's status as a real
estate investment trust under the Internal Revenue Code of 1986, as amended;
(v) the status of Wilshire Realty Services Corporation, a wholly-owned
subsidiary of Wilshire Financial Services Group Inc. ("WFSG"), as manager of
the Company; (vi) consummated and proposed transactions between the Company
and WFSG, whether pursuant to WFSG's proposed restructuring plan or otherwise;
and (vii) a merger or other change in control involving the Company. Value
Partners has made no decisions to seek to acquire the Company or to seek to
control or otherwise influence the management and/or policies of the Company
and does not have any specific plans or proposals in regard to any of the
foregoing matters at this time.
Other than as set forth above, none of the Reporting Persons has any
specific plans or proposals which relate to or would result in: (a) the
acquisition by any person of additional securities of the Company, or the
disposition of securities of the Company; (b) an extraordinary corporate
transaction, such as a merger, reorganization or liquidation, involving the
Company or any of its subsidiaries; (c) a sale or transfer of a material amount
of assets of the Company or any of its subsidiaries; (d) any change in the
present board of directors or management of the Company, including any plans or
proposals to change the number or term of directors or to fill any existing
vacancies on the board; (e) any material change in the present capitalization or
dividend policy of the Company; (f) any other material change in the Company's
business or corporate structure; (g) changes in the Company's charter, bylaws or
instruments corresponding thereto or other actions which may impede the
acquisition of control of the Company by any person; (h) causing a class of
securities of the Company to be delisted from a national securities exchange or
to cease to be authorized to be quoted in an inter-dealer quotation system of a
registered national securities association; (i) a class of equity securities of
the Company becoming eligible for termination of registration pursuant to
Section 12(g)(4) of the Act; or (j) any action similar to any of those
enumerated above.
2
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Item 5. Interest in Securities of the Issuer
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(a) According to the Company's Quarterly Report on Form 10-Q for the
quarter ended September 30, 1998, a total of 11,500,000 shares of Common Stock
were issued and outstanding as of October 31, 1998. As of February 8, 1998,
Value Partners beneficially owned 1,000,000 shares of Common Stock, representing
8.7% of the outstanding Common Stock.
(b) Value Partners has the sole power to vote and dispose of the
1,000,000 shares of Common Stock beneficially owned by it. Value Partners does
not share the power to vote or to direct the vote of, or the power to dispose or
to direct the disposition of, the Common Stock owned by it. Notwithstanding the
foregoing, Ewing & Partners, as a general partner of Value Partners, may be
deemed, for purposes of determining beneficial ownership pursuant to Rule 13d-3,
to have the shared power with Value Partners to vote or direct the vote of, and
the shared power with Value Partners to dispose of or to direct the disposition
of, the Common Stock owned by Value Partners. Mr. Ewing, as managing general
partner of Ewing & Partners, also may be deemed, for purposes of determining
beneficial ownership pursuant to Rule 13d-3, to have the shared power with Value
Partners to vote or to direct the vote of, and the shared power to dispose or to
direct the disposition of, the Common Stock owned by Value Partners. Although
EAM holds a 1% general partner interest in Ewing & Partners, EAM does not have
any shared voting or dispositive power over the Common Stock owned by Value
Partners, as Section 8 of the general partnership agreement for Ewing & Partners
gives such power solely to Mr. Ewing as the managing general partner of Ewing &
Partners.
(c) None of the Reporting Persons has effected any transactions in the
Common Stock during the 60 days preceding the filing of this Schedule 13D.
(d) Ewing & Partners and Mr. Ewing may be deemed to have the power to
direct the receipt of dividends from, or the proceeds from the sale of, the
Common Stock owned by Value Partners.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect
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to Securities of the Issuer
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The Reporting Persons have no contracts, arrangements, understandings or
relationships (legal or otherwise) between themselves and any person with
respect to any securities of the Company other than those described below:
(a) The Amended and Restated Agreement of Limited Partnership of Value
Partners, dated as of October 1, 1993, pursuant to the terms of which Ewing &
Partners, as General Partner, has the sole power to manage the affairs of Value
Partners, including the right to vote the shares of the Company and to dispose
of such shares. This agreement is filed as Exhibit 1 hereto.
3
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(b) The Amended and Restated Partnership Agreement of Ewing & Partners,
dated as of January 1, 1998, pursuant to the terms of which Mr. Ewing, as
managing general partner, has the power to manage the affairs of Ewing &
Partners, including the right to vote the shares of the Company and to dispose
of such shares. This agreement is filed as Exhibit 2 hereto.
(c) The Reporting Persons decided to jointly file this Schedule 13D, as
evidenced by the Joint Filing Agreement filed as Exhibit 3 hereto.
Item 7. Material to Be Filed as Exhibits
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The following documents are filed as exhibits to this Schedule 13D:
Exhibit 1 Second Amended and Restated Agreement of
Limited Partnership of Value Partners, dated as of
January 1, 1998.
Exhibit 2 Amended and Restated Management Agreement between Ewing &
Partners and Value Partners (included as Exhibit A to
Exhibit 1 to this Schedule 13D).
Exhibit 3 Amended and Restated Agreement of General Partnership of
Ewing & Partners, dated as of January 1, 1998.*
Exhibit 4 Joint Filing Agreement, dated as of February 8, 1998, among
Value Partners, Ewing & Partners and Mr. Ewing.
________________
* Incorporated by reference to Amendment No. 9 to the Schedule 13D
filed on January 8, 1998 by Value Partners, Ewing & Partners and
Mr. Ewing with respect to their interests in Allstate Financial
Corporation.
4
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SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, each of
the undersigned certifies that the information set forth in this statement is
true, complete and correct.
VALUE PARTNERS, LTD.
By: EWING & PARTNERS, as General Partner
February 8, 1999 By: /s/ Timothy G. Ewing
----------------------------
Timothy G. Ewing,
as Managing Partner
EWING & PARTNERS
February 8, 1999 By: /s/ Timothy G. Ewing
----------------------------
Timothy G. Ewing,
as Managing Partner
February 8, 1999 /s/ Timothy G. Ewing
------------------------------
Timothy G. Ewing
5
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<PAGE>
EXHIBIT 1
SECOND AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF VALUE PARTNERS, LTD.
January 1, 1998
THE LIMITED PARTNERSHIP INTERESTS WILL NOT BE REGISTERED UNDER
THE SECURITIES ACT OF 1933 AND ARE NOT ASSIGNABLE OR
TRANSFERABLE EXCEPT AS PROVIDED IN THE PARTNERSHIP AGREEMENT.
<PAGE>
TABLE OF CONTENTS
ARTICLE I. Definitions . . . . . . . . . . . . . . . . . . . . .1
1.1 Definitions . . . . . . . . . . . . . . . . . . . . . .1
ARTICLE II. Continuation, Name, Purposes, Registered Office,
Registered Agent and Term . . . . . . . . . . . . .4
2.1 Continuation. . . . . . . . . . . . . . . . . . . . . .4
2.2 Name. . . . . . . . . . . . . . . . . . . . . . . . . .4
2.3 Purposes. . . . . . . . . . . . . . . . . . . . . . . .4
2.4 Registered Office . . . . . . . . . . . . . . . . . . .5
2.5 Registered Agent. . . . . . . . . . . . . . . . . . . .5
2.6 Term of Partnership . . . . . . . . . . . . . . . . . .5
ARTICLE III. Capital Contributions . . . . . . . . . . . . . . .5
3.1 Capital Contribution of General Partner . . . . . . . .5
3.2 Capital Contribution of Limited Partners. . . . . . . .5
3.3 Additional Contributions. . . . . . . . . . . . . . . .5
ARTICLE IV. Allocations of Net Profits and Net Losses. . . . . .5
4.1 Allocation of Net Profits . . . . . . . . . . . . . . .5
4.2 Allocation of Net Loss. . . . . . . . . . . . . . . . .6
4.3 Restriction on Allocation to the General Partner. . . .6
4.4 Federal Income Tax Allocations. . . . . . . . . . . . .6
4.5 Allocation on Transfer. . . . . . . . . . . . . . . . .7
4.6 Allocation on Distribution of Assets in Kind. . . . . .7
4.7 Determination by General Partner of Certain Matters . .7
ARTICLE V. Capital Accounts. . . . . . . . . . . . . . . . . . .7
5.1 Capital Accounts. . . . . . . . . . . . . . . . . . . .7
5.2 Computation of Opening Capital Accounts . . . . . . . .7
5.3 Computation of Closing Capital Accounts . . . . . . . .8
5.4 Obligation to Repay or Restore. . . . . . . . . . . . .8
5.5 Tax Elections . . . . . . . . . . . . . . . . . . . . .8
ARTICLE VI. Partnership Expenses . . . . . . . . . . . . . . . .8
6.1 Operating Expenses. . . . . . . . . . . . . . . . . . .8
ARTICLE VII. Withdrawals and Distributions; Admission of
Partners. . . . . . . . . . . . . . . . . . . . . .8
7.1 Interest. . . . . . . . . . . . . . . . . . . . . . . .8
7.2 Withdrawals by the Partners . . . . . . . . . . . . . .8
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7.3 Exclusion of Limited Partners . . . . . . . . . . . . .9
7.4 Admission of Additional Partners. . . . . . . . . . . .9
7.5 Assignment or Transfer of Partnership Interests . . . .9
7.6 Distribution in Kind. . . . . . . . . . . . . . . . . 10
7.7 Loans to Partners . . . . . . . . . . . . . . . . . . 11
ARTICLE VIII. Management, Duties and Restrictions. . . . . . . 11
8.1 Management. . . . . . . . . . . . . . . . . . . . . . 11
8.2 No Control by Limited Partners. . . . . . . . . . . . 12
8.3 Activities of the Partners of the General Partner . . 12
ARTICLE IX. Dissolution of the Partnership . . . . . . . . . . 12
9.1 Dissolution . . . . . . . . . . . . . . . . . . . . . 12
9.2 Events Affecting a Limited Partner. . . . . . . . . . 12
ARTICLE X. Liquidation of the Partnership. . . . . . . . . . . 13
10.1 Liquidation Procedures . . . . . . . . . . . . . . . 13
ARTICLE XI. Financial Accounting and Reports . . . . . . . . . 13
11.1 Financial and Tax Accounting and Reports . . . . . . 13
11.2 Valuation of Assets. . . . . . . . . . . . . . . . . 14
11.3 Supervision; Inspection of Books . . . . . . . . . . 14
11.4 Annual Report; Financial Statements. . . . . . . . . 14
11.5 Special Meetings . . . . . . . . . . . . . . . . . . 14
11.6 Consent in Lieu of Meeting . . . . . . . . . . . . . 15
ARTICLE XII. Other Provisions. . . . . . . . . . . . . . . . . 15
12.1 Execution and Filing of Documents. . . . . . . . . . 15
12.2 Other Instruments and Acts . . . . . . . . . . . . . 15
12.3 Binding Agreement. . . . . . . . . . . . . . . . . . 15
12.4 Governing Law. . . . . . . . . . . . . . . . . . . . 15
12.5 Notices. . . . . . . . . . . . . . . . . . . . . . . 15
12.6 Power of Attorney. . . . . . . . . . . . . . . . . . 15
12.7 Amendment. . . . . . . . . . . . . . . . . . . . . . 16
12.8 Entire Agreement . . . . . . . . . . . . . . . . . . 16
12.9 Titles; Subtitles. . . . . . . . . . . . . . . . . . 16
12.10 Exculpation . . . . . . . . . . . . . . . . . . . . 16
12.11 Indemnification . . . . . . . . . . . . . . . . . . 16
12.12 Limitation of Liability of the Limited Partners . . 17
12.13 Confidentiality . . . . . . . . . . . . . . . . . . 17
12.14 Ambiguities . . . . . . . . . . . . . . . . . . . . 17
ii
<PAGE>
SECOND AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF VALUE PARTNERS, LTD.
THIS SECOND AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP is
effective as of the 1st day of January 1998, by and between Ewing & Partners,
a Texas partnership, as general partner (the "General Partner") and the Limited
Partners admitted into the Partnership listed on Schedule A. The General
Partner and the Limited Partners, hereby agree as follows:
ARTICLE I.
Definitions
1.1 Definitions: Unless the context requires otherwise, the following
terms have the meanings specified in this paragraph:
Act: The Texas Revised Limited Partnership Act.
Agreement: This Agreement of Limited Partnership and any amendments
thereto.
Applicable Rate: Interest at the prime rate announced by Morgan
Guaranty Trust Company of New York, compounded at the beginning of
each Fiscal Quarter.
Bankruptcy: A person or entity shall be deemed bankrupt if:
(a) any proceeding is commenced against such person or entity
as "debtor" for any relief under bankruptcy or insolvency laws,
or laws relating to the relief of debtors, reorganizations,
arrangements, compositions, or extensions and such proceeding is not
dismissed within sixty (60) days after such proceeding has commenced,
or
(b) such person or entity commences any proceeding for relief
under bankruptcy or insolvency laws or laws relating to the relief of
debtors, reorganizations, arrangements, compositions, or extensions.
Capital Account: The capital account of a Partner established
and maintained in accordance with paragraph 5.1.
Closing Capital Account: A Partner's Capital Account as of the
end of an Interim Period.
Closing Date: The first day on which the General Partner
accepts Limited Partners into the Partnership.
Date of Dissolution: The date on which the Partnership is
dissolved pursuant to paragraph 9.1.
<PAGE>
Fiscal Year: The 12 month period ending December 31 of each year;
provided, however, that the initial Fiscal Year shall be the period beginning
on July 1, 1989 and ending December 31, 1989 and the last Fiscal Year shall be
the period beginning on January 1 of the calendar year in which the final
liquidation and termination of the Partnership is completed and ending on the
date such liquidation and termination is completed.
General Partner: Ewing & Partners, a Texas partnership, and its
permitted successors and assigns.
Interim Period: A period subsequent to the Closing Date commencing on
the day on which a new Partner is admitted to the Partnership or the day on
which a Partner makes an additional capital contribution to the Partnership
or the day following the day on which the interest of a Partner is reduced or
terminated (if any of the foregoing events occurs other than on the last day
of a Fiscal Year). An Interim Period shall end on the last day of the Fiscal
Year in which the Interim Period began or on the day immediately preceding the
beginning of a new Interim Period, whichever is earlier. An Interim Period
shall also commence on the first day of a Fiscal Year.
Internal Revenue Code: The United States Internal Revenue Code of
1986, as now existing or hereafter amended.
Limited Partners: The Limited Partners listed on Schedule A hereto.
Majority in Interest of the Limited Partners: Limited Partners having
Partnership Percentages representing more than fifty percent (50%) of the
Partnership Percentages of all Limited Partners.
Management Agreement: The amended and restated management agreement
between Ewing & Partners and the Partnership with respect to managerial and
support services to be provided and fees to be charged to the Partnership,
included as Exhibit A hereto.
Net Asset Value: The Net Asset Value of the Partnership shall equal
the total assets, less the total liabilities of the Partnership as of the
relevant valuation date, using the accrual method and determined on the basis
of generally accepted accounting principles consistently applied, including
unrealized profits or losses on open positions and also including other properly
accrued credits or debits. Net Asset Value as of the close of an Interim Period
shall be determined prior to giving effect to any withdrawals made as of the
last day of such Interim Period. Partnership assets shall be valued in
accordance with paragraph 11.2. Those costs incurred in organizing the
Partnership shall be amortized over the Partnership's initial sixty months of
operations. Any unamortized costs shall be considered in determining Net Asset
Value.
Net Profit and Net Loss: With respect to any Interim Period, the
difference between (i) the Net Asset Value of the Partnership as of the close
of business on the last day of such Interim Period, and (ii) the Net Asset Value
of the Partnership as of the beginning of business on the first day of the
Interim Period, after giving effect to withdrawals as of the last day of the
previous Interim Period, and contributions as of the first day of the Interim
Period.
2
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Opening Capital Account: A Partner's Capital Account as determined under
paragraph 5.2.
Operating Expenses: Shall have the meaning assigned to it in paragraph
6.1.
Partner: A partner of the Partnership, including the Limited Partners
and the General Partner.
Partnership: Value Partners, Ltd., a Texas limited partnership.
Partnership Percentage: At the beginning of each Interim Period, the
Partnership Percentage for each Partner for such Interim Period shall be
determined by dividing the amount of each Partner's Opening Capital Account by
the sum of the Opening Capital Accounts of all of the Partners for such Interim
Period.
Partnership Term: The period of duration of the Partnership, as set
forth in paragraph 2.6.
Preferred Return: An amount calculated at the end of each Fiscal Year
equal to 6%, on an annualized basis, of a Partner's capital account from the
beginning of the Interim Period immediately following the later of (i) the last
Interim Period for which the General Partner received an allocation of Net
Profits pursuant to paragraph 4.1(c) with respect to such capital, (ii) the date
such capital was contributed to the Partnership (in the event an allocation of
Net Profits to the General Partnership pursuant to paragraph 4.1(c) has not been
made with respect to such capital) and (iii) the date which is 24 months prior
to the date on which the current allocation of Net Profits is made pursuant to
paragraph 4.1(c) with respect to such capital. The Preferred Return is
adjusted, on a time-weighted basis, for all contributions occurring during a
Fiscal Year.
In the event an allocation of Net Profits to the General Partner
pursuant to paragraph 4.1(c) was not made in the previous Fiscal Year, the
Preferred Return in the current Fiscal Year shall be the same amount as that
of the previous Fiscal Year adjusted on a time-weighted basis for any
contributions made during the year. The Preferred Return will accrue only on
capital which remains in the Partnership until the end of an Interim Period
in which an allocation of Net Profits to the General Partner occurs.
Securities: Capital stock, preorganization certificates and
subscriptions, warrants, bonds, notes, debentures, whether subordinated,
convertible or otherwise, trust receipts and other securities of whatever kind
or nature of any person, corporation, government or entity whatsoever, whether
readily marketable or not, in rights and options relating thereto, including put
and call options written by the Partnership or by others.
Securities Act: The Securities Act of 1933, as amended.
Tax Matters Partner: Ewing & Partners or such other Partner as the
General Partner may designate.
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ARTICLE II.
Continuation, Name, Purposes, Registered Office,
Registered Agent and Term
2.1 Continuation. The General Partner and the Limited Partners hereby
continue the Partnership pursuant to the Second Amended and Restated Certificate
of Limited Partnership of Value Partners, Ltd. (the "Certificate") filed with
the Office of the Secretary of State of Texas on January 27, 1998.
2.2 Name. The name of the Partnership is Value Partners, Ltd. The business
of the Partnership shall be conducted under the Partnership name. The
Partnership shall have the exclusive right to use the Partnership name as long
as the Partnership continues. Upon termination of the Partnership, the
Partnership shall assign the name and goodwill attached to the Partnership name
to the General Partner.
2.3 Purposes. The Partnership is organized to enter into, make, and perform
all contracts and other undertakings, and engage in all activities and
transactions and to incur expenses on behalf of the Partnership, as the General
Partner may deem necessary or advisable to the carrying out of the foregoing
objects and purposes, including without limitation:
(a) to purchase Securities and hold them for investment;
(b) to purchase, hold, sell, exchange, transfer, mortgage, pledge and
otherwise acquire and dispose of and exercise all rights, powers, privileges
and other incidents of ownership or possession with respect to Securities;
(c) to acquire a long position or a short position with respect to any
Security and to make purchases or sales increasing, decreasing or
liquidating such position or changing from a long position to a short
position or from a short position to a long position, without any limitation
as to the frequency of the fluctuation in such positions or as to the
frequency of the changes in the nature of such positions;
(d) to borrow or raise monies, and, from time to time without limitation
as to amount or manner and time of repayment, to issue, accept, endorse and
execute promissory notes, drafts, bills of exchange, warrants, bonds,
debentures and other negotiable or nonnegotiable instruments and evidences
of indebtedness, and to secure the payment of such or other obligations of
the Partnership by mortgage upon, or hypothecation or pledge of, all or part
of the property of the Partnership, whether at the time owned or thereafter
acquired;
(e) to maintain for the conduct of Partnership affairs one or more
offices and in connection therewith rent or acquire office space, engage
personnel, whether part-time or full time, and do such other acts and incur
such expenses as the General Partner may deem necessary or advisable in
connection with the maintenance and administration of such office or
offices; and
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(f) to engage independent attorneys, accountants or such other persons
as the General Partner may deem necessary or advisable.
2.4 Registered Office. The registered office of the Partnership shall be c/o
Ewing & Partners, Suite 4660 West, Dallas, Texas 75201, or such other place or
places as the General Partner may from time to time designate.
2.5 Registered Agent. The registered agent of the Partnership for service of
process in the State of Texas shall be Timothy G. Ewing, Suite 4660 West,
Dallas, Texas 75201.
2.6 Term of Partnership. The term of the Partnership commenced upon the
filing and recording of the Partnership's original certificate of limited
partnership on April 20, 1989, and shall continue until December 31, 2039.
ARTICLE III.
Capital Contributions
3.1 Capital Contribution of General Partner. The General Partner shall
contribute from time to time an amount sufficient to maintain its Capital
Account at an amount equal to at least 1% of Partnership Capital.
3.2 Capital Contribution of Limited Partners. Each Limited Partner shall
make a capital contribution on the Closing Date in such amount as may be
required by the General Partner as a condition of such admission. Contributions
of property, if any, shall be valued at their fair market value in accordance
with paragraph 11.2.
3.3 Additional Contributions. No Partner shall be obligated to make any
contributions to the capital of the Partnership other than as required by this
Article III.
ARTICLE IV.
Allocations of Net Profits and Net Losses
4.1 Allocation of Net Profits. Net Profits for each Interim Period shall be
allocated as follows:
(a) Each Partner shall be allocated 100% of his Partnership Percentage
of Net Profits up to an amount which equals the Preferred Return;
(b) Each Limited Partner shall be allocated 80% of his Partnership
Percentage of Net Profits in excess of the Preferred Return;
(c) The remaining Net Profits shall be allocated to the General Partner.
Provided, however, that the allocation of Net Profit to the General Partner
shall only be determined as of the end of the Fiscal Year (except with respect
to a Partner withdrawing at any time other than the close of the Fiscal Year).
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4.2 Allocation of Net Loss. Each Partner shall be allocated a share of Net
Loss equal to his Partnership Percentage.
4.3 Restriction on Allocation to the General Partner. Notwithstanding
paragraph 4.1 to the contrary, if the allocation of Net Profit for any Interim
Period to the General Partner with respect to a Limited Partner would violate
Rule 205-3(c)(3) of the Rules and Regulations under the Investment Advisors Act
of 1940 or any successor provision thereto (the "Rule"), the allocation of Net
Profit to such Limited Partner in Section 4.1(b) shall be increased to 100% of
his Partnership Percentage, but only to the extent necessary to comply with the
Rule, and the allocation to the General Partner shall be correspondingly
reduced. If, in any subsequent Interim Period, the allocation of Net Profit to
the General Partner with respect to such Limited Partner is no longer limited by
the Rule, the allocation of Net Profit to such Limited Partner shall be made in
accordance with paragraph 4.1, taking into account the Net Profit of the
Partnership for such Interim Period as well as each prior Interim Period in
which such limitation was in effect. In connection with such determination,
the Preferred Return shall be adjusted to take account of the actual period
for which the Net Profit allocation is being made.
4.4 Federal Income Tax Allocations. Solely for federal income tax purposes:
(a) Each item of income, gain, loss, deduction or credit for each
Interim Period shall be allocated among the Partners in a manner that reflects
as nearly as possible the amounts of and components of Net Profit and Net Loss
allocated to the Partners pursuant to paragraphs 4.1, 4.2 and 4.3.
(b) Notwithstanding contrary provisions of this Article IV, gain or loss
with respect to non-cash property contributed to the Partnership by any Partner
shall, to the extent required by Section 704(c) of the Internal Revenue Code, be
allocated for federal income tax purposes in a manner to take account of the
difference between the basis of such property at the time of contribution and
its initial value on the Partnership's books. The General Partner shall make
allocations of gain or loss with respect to Partnership property in a manner
which takes account of the difference between the tax basis of such property
and the value of the property on the books of the Partnership at the time of
admission of a new Partner or any additional capital contribution by a Partner,
consistent with the method used by the Partnership in making allocations under
Section 704(c) of the Internal Revenue Code.
(c) Anything contained herein to the contrary notwithstanding, there shall
first be allocated to each Partner with a deficit capital account in excess of
any obligation by the Partner to restore such deficit balance, resulting from
any adjustment, allocation or distribution described in Treasury regulations
Section 1.704-1(b)(2)(ii)(d)(4), (5) or (6), such Partner's allocable share of
all Partnership gross income up to the amount by which such deficit capital
account balance exceeds such Partner's obligation to restore such deficit
balance.
4.5 Allocation on Transfer. If any interest in the Partnership is transferred
during any Interim Period of the Partnership, each item of Net Profit or Net
Loss for such Interim Period shall be assigned pro rata to each day in the
particular period of such Interim Period to which such item is attributable
(i.e., the day on or during which it is accrued or otherwise incurred) and the
amount
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of each such item so assigned to any such day shall be allocated to the Partners
based upon their respective interests in the Partnership at the close of such
day.
4.6 Allocation on Distribution of Assets in Kind. Income or loss shall be
deemed realized on the distribution of assets in kind and shall be computed as
if the distributed asset were sold for its fair market value and the resulting
Net Profit or Net Loss were allocated among the Partners pursuant to paragraph
4.1, 4.2 or 4.3.
4.7 Determination by General Partner of Certain Matters. All matters
concerning the valuation of Securities, the determination and allocation of
Net Profits and Losses among the Partners, the federal income tax allocations
among the Partners, and accounting procedures, not specifically and expressly
provided for by the terms of this Agreement, shall be determined by the General
Partner, whose determination shall be final and conclusive as to all of the
Partners.
ARTICLE V.
Capital Accounts
5.1 Capital Accounts. Each Partner shall have a Capital Account which shall
be maintained in accordance with Treasury Regulations Section 1.704-1(b)(2)(iv).
Such Capital Account shall be increased by:
(a) the amount of his cash capital contributions and the fair market
value of his property in the case of noncash contributions to the Partnership
pursuant to Article III;
(b) the amount of Net Profit allocated to him pursuant to paragraph 4.1;
(c) the amount allocated to General Partner pursuant to paragraph 4.3;
and shall be decreased by
(d) such Partner's share of expenditures of the Partnership described in
Section 705(a)(2)(B) of the Internal Revenue Code (relating to expenditures
which are neither deductible nor properly chargeable to capital);
(e) his share of the excess of the adjusted tax basis of distributed
assets over the fair market value of such assets;
(f) the amount of Net Loss allocated pursuant to paragraph 4.2; and
(g) the fair market value of property distributed to him.
5.2 Computation of Opening Capital Accounts. Each Partner's initial Opening
Capital Account shall be an amount equal to the aggregate capital contributions
made by such Partner to the Partnership on the formation of the Partnership (or,
if such Partner was admitted to the Partnership subsequent to such date, on the
date of such Partner's admission to the Partnership). On the first day of each
subsequent Interim Period, each Partner's Opening Capital Account shall be an
amount equal to the Closing Capital Account of such Partner for the immediately
preceding Interim Period.
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5.3 Computation of Closing Capital Accounts. As of the last day of each
Interim Period, the Closing Capital Account of each Partner for such Fiscal
Year shall be computed by adjusting each Partner's Capital Account for the
items described in paragraph 5.1 which relate to such period.
5.4 Obligation to Repay or Restore. No Partner shall be required to pay to
the Partnership or to any other Partner any deficit or negative balance which
may exist from time to time in his Capital Account as a result of the provisions
hereof for the allocation of the Partnership's Net Loss, for the withdrawal of
capital, and for the distribution of the Partnership's assets in liquidation
of the Partnership.
5.5 Tax Elections. The General Partner is authorized, in its sole discretion,
to make all elections permitted or required of the Partnership under Treasury
regulations Section 1.704-1, Section 754 of the Internal Revenue Code and
pursuant to any other provisions of the Internal Revenue Code.
ARTICLE VI.
Partnership Expenses
6.1 Operating Expenses. Subject to the provisions of the Management Agreement,
the Partnership shall bear (or reimburse the General Partner for its payment of)
all direct costs and expenses of every kind and description incurred in
connection with the organization, operations, liquidation and dissolution of the
Partnership (collectively, "Operating Expenses"). Ewing & Partners shall
provide managerial and support services for the Partnership, and shall be
entitled to such fees and expense reimbursement as set forth in the Management
Agreement with Ewing & Partners.
ARTICLE VII.
Withdrawals and Distributions;
Admission of Partners
7.1 Interest. Except as otherwise provided in this Agreement, no interest
shall be paid to any Partner on account of his interest in the capital of or
on account of his investment in the Partnership.
7.2 Withdrawals by the Partners. Each Partner shall have the right,
exercisable by delivery of written notice to the General Partner prior to
thirty (30) days prior to the close of a Fiscal Year, to withdraw all or a
part of his Closing Capital Account subject to the following conditions:
(i) no such withdrawal shall be permitted which would result in a Limited
Partner's Capital Account being reduced below $200,000 as of the end of the
Fiscal Year of withdrawal, unless the Limited Partner withdraws the total
balance of its Capital Account; (ii) no withdrawal shall be permitted with
respect to any Limited Partner during any period in which the allocation
of Net Profit to the General Partner is restricted pursuant to paragraph 4.3.
In addition, the withdrawing Partner shall pay to the General Partner a fee
of 2% of the amount withdrawn with respect to permitted withdrawals occurring
prior to the end of the second Fiscal Year end after such Partner's original
capital contribution. The General Partner shall deliver the amount determined
in accordance with this
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paragraph within 90 days after the close of the Fiscal Year, together with
interest on the withdrawn amount from the effective date of withdrawal at the
Applicable Rate. In lieu of delivering cash to a Partner upon a withdrawal of
all or any part of his Capital Account, the General Partner may distribute
Securities in kind to satisfy such withdrawal in accordance with paragraph 7.6.
7.3 Exclusion of Limited Partners. The General Partner may, in its sole and
absolute discretion, exclude from the Partnership any Limited Partner upon at
least forty-five (45) days prior notice in writing given to such Limited
Partner. The interest of such Limited Partner shall terminate on the date
specified in such notice and within ninety (90) days after the date of such
termination such Limited Partner shall be paid the amount of his Closing Capital
Account as of the date of such termination, together with interest on the amount
so paid from the effective date of such termination at the Applicable Rate,
after subtracting the legal and accounting costs associated with such
withdrawal. On the effective date of such termination, such Partner's Capital
Account shall be reduced to zero (0) and thereafter he shall be a creditor of
the Partnership to the extent of the amount payable to him by the Partnership
pursuant to this paragraph 7.3.
7.4 Admission of Additional Partners. The General Partner may, from time to
time, admit additional Limited Partners in its sole discretion, provided that
the total number of Partners in the Partnership shall not exceed 99. The
General Partner may admit additional general partners into the Partnership who
are employed by or affiliated with Ewing & Partners without the consent of the
Limited Partners, provided that (i) any interest in Net Profits or income
allocated to such additional general partners shall not affect in any manner
the allocation to the Limited Partners of such items; and (ii) Ewing & Partners
shall be designated the managing General Partner, with exclusive power to sign
for and bind the Partnership.
7.5 Assignment or Transfer of Partnership Interests.
(a) Except as provided in paragraph 7.4, the General Partner shall not
sell, assign or transfer, in whole or in part, its Partnership interest or its
share of the Partnership's capital, assets or property or enter into any
agreement, the result of which would be for another person, firm or corporation
to become directly or indirectly interested in the Partnership without the prior
written consent of a Majority in Interest of the Limited Partners.
Notwithstanding the foregoing to the contrary, the General Partner shall be
entitled to mortgage or pledge its interest in the Partnership.
(b) No Limited Partner shall sell, assign, pledge, mortgage, or otherwise
dispose of or transfer, in whole or in part, its Partnership interest or its
share of the Partnership's capital, assets or property or enter into any
agreement, the result of which would be for another person, firm or corporation
to become directly or indirectly interested in the Partnership without the prior
written consent of the General Partner.
(c) No transfer, sale or other disposition of the Partnership interest of a
Limited Partner shall be permitted until the General Partner shall have received
an opinion of counsel satisfactory to it that the effect of such transfer or
disposition would not:
(i) result in a violation of the Securities Act;
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(ii) require the Partnership to register as an investment company
under the Investment Company Act of 1940, as amended;
(iii) result in a termination of the Partnership under Section 708
of the Internal Revenue Code or in any adverse tax consequences to the
Limited Partners; or
(iv) result in a violation of any law, rule, or regulation by the
Limited Partner, the Partnership, the General Partner, or any partner of the
General Partner.
Such legal opinion shall be provided to the General Partner by the
transferring Limited Partner or the proposed transferee (except that the
opinion in clause (iv) regarding the Partnership, the General Partner and the
partners of the General Partner shall be rendered by counsel to the Partnership
or the General Partner), and all reasonable costs associated with such opinions
shall be borne by the transferring Limited Partner or the proposed transferee.
(d) A person to whom the interest of a Limited Partner has been
transferred in accordance with paragraphs 7.5(b) and (c) (the "Transferee")
above shall be admitted to the Partnership as a substituted Limited Partner
only with the consent of the General Partner, which consent may be granted or
withheld in the absolute discretion of the General Partner and may be
arbitrarily withheld, and then only upon the execution of this Agreement, and
such other instruments as the General Partner may require in order to evidence
the undertaking of such person to perform and comply with the terms and
conditions of this Agreement. The Transferee shall bear all costs and expenses
incident to the procurement of requisite legal opinions and the substitution of
the Transferee as a Limited Partner.
7.6 Distribution in Kind. The General Partner may, in its discretion,
distribute the assets of the Partnership in kind to the Partners. All
distributions of assets in kind shall be made at fair market value as
determined pursuant to paragraph 11.2 in the same manner that the Partners
would have received if the assets were sold, the Net Profit or Loss were
allocated in accordance with paragraphs 4.1, 4.2 and 4.3 and the proceeds
from such sale were distributed in accordance with paragraph 10.1(b)(iii).
7.7 Loans to Partners. Upon the request of a Partner, the Partnership shall
have the power, in the sole discretion of the General Partner, to loan to such
requesting Partner an amount up to 25% of his Opening Capital Account balance.
Each such loan shall be repayable in full at the end of the Fiscal Year in which
it is made and shall be secured by the interest of the Partner in the
Partnership. If the Partnership incurs indebtedness to provide such loan, the
loan shall bear interest at 200 basis points in excess of the Partnership's cost
of funds; if the Partnership does not incur indebtedness to provide the loan,
the loan shall bear interest at 200 basis points over the Applicable Rate. The
General Partner may, from time to time, adjust the margin and the base on which
the interest rate for any loan under this paragraph is determined (provided that
such adjustment shall not affect the interest rate on outstanding loans). All
out-of-pocket expenses incurred by the General Partner or the Partnership in
connection with any loan made pursuant to this paragraph 7.7 shall be paid by
the Partner to whom such loan is made.
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ARTICLE VIII.
Management, Duties and Restrictions
8.1 Management. The General Partner shall have the sole and exclusive right
to manage, control, and conduct the business of the Partnership, subject to the
right of the General Partner to delegate as it sees fit such managerial rights
and obligations as are specifically set forth in the Management Agreement, and
to do any and all acts on behalf of the Partnership, including but not limited
to, the following:
(a) conduct accounts, including margin accounts, with brokers, which power
shall include the authority to pay, or authorize the payment and reimbursement
of, brokerage commissions which may be in excess of the lowest rates available
and which are paid to brokers who execute transactions for the account of the
Partnership and who supply or pay the cost of property or services (such as rent
for office space, salaries for employees, research services, telephone lines,
news and quotation equipment and computer facilities) utilized by the
Partnership or any other investment fund or investment partnership in which the
General Partner is authorized to participate pursuant to paragraph 2.3 hereof,
provided that the Partnership, directly or through any such other investment
fund or investment partnership, in employing such brokers, obtains "best
execution," taking into account the research and execution capabilities of
the brokers and their financial stability and reputation;
(b) open, maintain and close bank accounts and draw checks or other orders
for the payment of moneys;
(c) lend, with or without security, any of the funds or properties of the
Partnership and, from time to time without limit as to amount, borrow or raise
funds and secure the payment of obligations of the Partnership by mortgage upon,
or pledge or hypothecation of, all or any part of the property of the
Partnership;
(d) do any and all acts on behalf of the Partnership, and exercise all
rights of the Partnership, with respect to its interest in any person, firm,
corporation or other entity, including without limitation the voting of
securities, participation in arrangements with creditors, the institution and
settlement or compromise of suits and administrative proceedings and other like
or similar matters; and
(e) act for and on behalf of the Partnership in all matters incidental to
the foregoing.
The signed statement of the General Partner, reciting that it has authority to
undertake any act or has the necessary votes or consents of the Partners to take
any such act, when delivered to any third party, shall conclusively establish
its capacity to act, and any such third party shall be entitled to rely in good
faith upon such statement. Such statement shall not, however, be determinative
as between the Partners unless the action in question was in fact authorized
with this Agreement.
8.2 No Control by Limited Partners. The Limited Partners shall take no part
in the control or management of the business or affairs of the Partnership nor
shall the Limited Partners
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have any authority to act for or on behalf of the Partnership except as is
specifically permitted by this Agreement.
8.3 Activities of the Partners of the General Partner. The partners of the
General Partner shall devote such time to the business of the Partnership as
they shall deem necessary to manage and supervise the business of the
Partnership in an efficient manner. The partners of the General Partner may
have other business interests and may engage in other activities in addition
to those relating to the Partnership, which shall not be required to be their
exclusive activity and interest, subject to their fiduciary duty to act with
the utmost good faith in all dealings with the Partnership.
ARTICLE IX.
Dissolution of the Partnership
9.1 Dissolution. The Partnership shall be dissolved upon the happening of any
of the following events:
(a) The expiration of the Partnership Term, as provided in paragraph 2.6;
(b) The date specified in a notice from the General Partner to the Limited
Partners which states the intention that the Partnership shall be dissolved
as of the specified date; or
(c) Upon the Bankruptcy or dissolution of the General Partner.
9.2 Events Affecting a Limited Partner. The death, temporary or permanent
incapacity, insanity, Incompetency, Bankruptcy, liquidation, dissolution,
reorganization, merger, sale of substantially all the stock or assets of, or
other change in the ownership or nature of a Limited Partner shall not dissolve
the Partnership.
ARTICLE X.
Liquidation of the Partnership
10.1 Liquidation Procedures.
(a) Upon dissolution of the Partnership the General Partner, or if there
is no General Partner, such person or persons as a Majority in Interest of
the Limited Partners shall designate as liquidating trustees shall commence
immediately to wind up the affairs of the Partnership. The General Partner or
such liquidating trustees shall use their best judgment as to when to dispose
of the Partnership's assets or to make distributions in kind in order to
maximize the return to the Partners from such assets.
(b) The assets of the Partnership remaining after payment of the costs and
expenses of winding up shall be applied in the following priority:
(i) to the creditors of the Partnership, other than Partners, all
amounts due them from the Partnership in the order of priority established
by law;
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(ii) to the Partners, all amounts due them in repayment of any debts
of the Partnership to the Partners;
(iii) to the Partners, pro rata in proportion to the balances in their
Capital Accounts, after appropriate allocation of Net Profits or Losses.
(iv) The General Partner or the liquidating trustees may, in their sole
discretion, distribute any assets to a liquidating trust. In the event a
liquidating trust is established, the Partners shall appoint three (3)
trustees (which trustees may include the General Partner and any of its
partners). Two (2) of the trustees shall be selected by a Majority in
Interest of the Limited Partners and one (1) of the liquidating trustees
shall be selected by the General Partner. The trustees shall supervise
the orderly liquidation of the assets held by such trust. During the term
of the trust the trust assets shall be distributed at such times and in
such amounts as the trustees shall determine. The trust shall terminate at
the end of three (3) years or such later date as the trust assets may be
distributed in kind to the Partners.
(c) Net Profits and Net Losses and all other gains and losses during the
period of liquidation following dissolution of the Partnership shall be
allocated among the Partners in the manner provided in Article IV.
ARTICLE XI.
Financial Accounting and Reports
11.1 Financial and Tax Accounting and Reports. The tax returns of the
Partnership shall be filed on an accrual basis (if the General Partner deems
it advantageous for the Partnership to do so). The General Partner shall
cause the Partnership's tax returns to be prepared and Schedule K-1 or any
successor form to be prepared and delivered in a timely manner to the Limited
Partners. In the event of an income tax audit of the Partnership or any
judicial or administrative proceeding in connection with the income tax returns
of the Partnership the Tax Matters Partner shall be authorized to act for, and,
to the extent provided by the Internal Revenue Code, his decision shall be
binding upon the Partnership and all Partners. The books and records of the
Partnership shall be kept in accordance with generally accepted accounting
principles consistently applied and shall be audited at the end of each Fiscal
Year by independent certified public accountants selected by the General
Partner.
11.2 Valuation of Assets. For purposes of determining the value of Securities,
Securities which are listed on a national securities exchange shall be valued at
their last sales price on the date of determination, or, if no sales occurred on
such day, at the mean between the "bid" and "asked" prices on such day.
Securities which are not listed shall be valued at their last closing "bid"
prices if held "long" by the Partnership and their last closing "asked" prices
if held "short" by the Partnership. Securities which are in the form of put or
call options shall be valued at their fair market value, and Securities which
are commodities or commodity contracts shall be valued at their last prior sales
prices. All other Securities and other assets of the Partnership shall be
assigned such fair market value as the General Partner may determine in good
faith, as well as all other values
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assigned to Securities or other assets by the General Partner pursuant to this
paragraph 11.2, shall be final and conclusive as to all of the Partners.
11.3 Supervision; Inspection of Books. Proper and complete books of account
of the business of the Partnership shall be kept under the supervision of the
General Partner at the principal place of business of the Partnership. Such
books shall be open to inspection by the Limited Partners, or their accredited
representatives, at any reasonable time during normal business hours.
11.4 Annual Report; Financial Statements. The General Partner shall transmit
to the Limited Partners within ninety (90) days after the close of each of the
Partnership's Fiscal Years or as soon as practicable thereafter, audited
financial statements of the Partnership prepared in accordance with generally
accepted accounting principles consistently applied, including an income
statement for the year then ended, a balance sheet as of the end of such year,
and a statement of changes in the Partners' Capital Accounts. The financial
statements shall be audited by an independent public accounting firm. The
financial statements shall be accompanied by a report from the General Partner
to the Limited Partners commenting on the affairs of the Partnership during the
Fiscal Year then ended.
11.5 Special Meetings. The termination or continuation of the Partnership, and
any other matter requiring the consent of any of the Limited Partners pursuant
to this Agreement may be considered at a meeting of the Partners held not less
than twenty (20) nor more than sixty (60) days after notification thereof shall
have been given by the General Partner to all Partners. Such notification (i)
may be given by the General Partner, in its sole discretion, at any time, and
(ii) shall be given by the General Partner within thirty (30) days after receipt
by the General Partner of a request for such a meeting made by a Majority in
Interest of the Limited Partners. Any such notification shall state briefly the
purpose, time and place of the meeting. All such meetings may be held at the
principal offices of the Partnership and during normal business hours, or at
such other places as the General Partner deems appropriate.
11.6 Consent in Lieu of Meeting. Any action which may be taken by the Partners
at a meeting may be effected through the execution of written consents by the
requisite percentage in interest of the Partners.
ARTICLE XII.
Other Provisions
12.1 Execution and Filing of Documents. The General Partner and each Limited
Partner (or the General Partner as such Partner's attorney-in-fact) shall
execute and file such certificates and other documents as may be required by
the Act and other applicable laws. The General Partner shall cause the
Partnership to be qualified, formed, reformed or registered under assumed or
fictitious name statutes or similar laws in any jurisdiction in which the
Partnership owns property or transacts business if such qualification,
formation, reformation or registration is necessary in order to protect the
limited liability of the Limited Partners or to permit the Partnership lawfully
to own property or transact business as a limited partnership. The General
Partner shall execute, file and publish all such certificates, notices,
statements or other instruments appropriate to permit the business and to
maintain the limited liability of the Limited Partners.
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12.2 Other Instruments and Acts. The Partners agree to execute any other
instruments or perform any other acts that are or may be necessary to
effectuate and carry on the Partnership created by this Agreement.
12.3 Binding Agreement. This Agreement shall be binding upon the permitted
transferees, successors, assigns, and legal representatives of the Partners.
12.4 Governing Law. This Agreement shall be governed by and construed under
the laws of the State of Texas.
12.5 Notices. Any notice or other communication that one Partner desires to
give to another Partner or the Partnership or that the Partnership desires to
give to a Partner shall be in writing, and shall be deemed effectively given
upon personal delivery or upon deposit in any United States mail box, by
registered or certified mail, postage prepaid, or upon transmission by telegram
or telex, addressed, in the case of a Partner, to the Partner at the address
shown in Schedule A attached hereto or at such other address as a Partner may
designate by fifteen (15) days' advance notice to the other Partners and, in the
case of the Partnership, to its registered office designated in paragraph 2.4;
provided, however, that any notice to a Partner with an address outside the
United States shall be deemed effectively given only upon personal delivery
or upon transmission by telegram or telex with a confirmation copy sent by air
mail.
12.6 Power of Attorney. Each Limited Partner, by his execution hereof, hereby
makes, constitutes and appoints the General Partner as his true and lawful agent
and attorney-in-fact, with full power of substitution and full power and
authority in his name, place and stead to make, execute, sign, acknowledge,
swear to, record and file (a) this Agreement and any amendment to any thereof;
(b) the original certificate of limited partnership of the Partnership and all
amendments thereto required or permitted by law or the provisions of this
Agreement; (c) all certificates and other instruments deemed advisable by the
General Partner to carry out the provisions of this Agreement and applicable
law or to permit the Partnership to become or to continue as a limited
partnership wherein the Limited Partners have limited liability in the
jurisdiction where the Partnership may be doing business; (d) all instruments
that the General Partner deems appropriate to reflect a change or modification
of this Agreement or the Partnership in accordance with this Agreement,
including without limitation the admission, withdrawal, expulsion, or
substitution of Limited Partners; (e) all conveyances and other instruments
or papers deemed advisable by the General Partner to effect the dissolution
and termination of the Partnership; (f) all fictitious or assumed name
certificates required or permitted to be filed on behalf of the Partnership;
and (g) all other instruments or papers which may be required or permitted by
law to be filed on behalf of the Partnership. The foregoing power of attorney
is irrevocable and coupled with an interest.
12.7 Amendment
(a) Except for such amendments as result from the operation of the
various provisions of this Agreement, this Agreement may be amended only with
the written consent of a Majority in Interest of the Limited Partners.
(b) The General Partner, acting alone, may make ministerial changes in the
Partnership Agreement for the purpose of correcting errors and inconsistencies
and to comply
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with federal, state and local rules, regulations and laws, provided that the
liability of the Limited Partners for Partnership debts shall not be increased
by such amendment nor shall the right of the Limited Partners to Partnership
allocations or distributions be adversely affected thereby. The General
Partner, acting alone, may amend this Agreement to reduce the share of Net
Profit allocated to the General Partner for any Interim Period and increase
allocations of such items to Limited Partners.
12.8 Entire Agreement. This Agreement shall constitute the entire agreement
of the Partners and supersede all prior agreements between the Partners with
respect to the Partnership.
12.9 Titles; Subtitles. The titles and subtitles used in this Agreement are
used for convenience only and shall not be considered in the interpretation
of this Agreement.
12.10 Exculpation. Neither the General Partner, nor any of its partners,
employees, agents, or affiliates, shall be liable to any Limited Partner or the
Partnership for any action taken or failure to act on behalf of the Partnership
within the scope of authority conferred on the General Partner by this
Agreement, or by law, or done in reliance in good faith on the opinion of legal
counsel, unless such act or omission was performed or omitted fraudulently or
in bad faith or constituted gross negligence.
12.11 Indemnification. To the extent permitted by state or federal law, the
Partnership agrees to indemnify, out of the assets of the Partnership only, the
General Partner and its partners, employees, agents and affiliates hereof and
to save and hold them harmless from and in respect of any loss suffered by
the Partnership which arises out of any action or inaction by him or it if
the indemnified party, in good faith, determined that such course of conduct
was in the best interests of the Partnership and such course of conduct did
not constitute gross negligence or misconduct of the indemnified party. To the
extent permitted by state or federal law, the General Partner, its partners,
employees, agents and affiliates shall be indemnified by the Partnership against
any losses, judgments, liabilities, expenses, and amounts paid in settlement of
any claims sustained by him or it in connection with the Partnership, including
but not limited to any judgment, award, settlement, reasonable attorneys' fees,
and other costs or expenses incurred in connection with the defense or
settlement of any actual or threatened action, proceeding or claim, provided
that the same was not the result of gross negligence or misconduct on the part
of the indemnified party.
12.12 Limitation of Liability of the Limited Partners. No Limited Partner shall
be bound by, nor be personally liable for, the expenses, liabilities, or
obligations of the Partnership in excess of its Capital Contribution to the
Partnership plus such additional amounts determined pursuant to paragraph 5.4.
12.13 Confidentiality. Each Partner recognizes and acknowledges that
confidential information of various kinds may exist, from time to time, with
respect to the business and assets of the Partnership. Accordingly, each
Partner covenants that, except with prior written consent of the General Partner
or except pursuant to his ordinary duties on behalf of the Partnership, he
shall at all times keep confidential and not divulge, furnish or make accessible
to anyone (except the Partnership's authorized representatives) any confidential
information to which he has been or shall become privy relating to the business
or assets of the Partnership. The provisions of this paragraph 12.13 shall not
apply to any information to the extent it is or shall become generally
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known to the public or the trade (without commission of a tortious act) or to
the extent it is or shall become available in trade or other publications.
12.14 Ambiguities. The General Partner shall have full power and authority to
resolve questions of interpretation and construction arising under this
Agreement, and its resolution of such ambiguities or questions shall be final
and binding on the Partnership and all of its Partners and their legal
representatives.
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IN WITNESS WHEREOF, the Partners have executed this Agreement as of the day
and year first above written.
GENERAL PARTNER:
EWING & PARTNERS
By: /s/ Timothy G. Ewing
---------------------
Name: Timothy G. Ewing
Title: General Partner
LIMITED PARTNERS:
By: EWING & PARTNERS, Attorney-in-Fact for
those persons listed as Limited Partners
in Schedule A hereto
By: /s/ Timothy G. Ewing
---------------------
Name: Timothy G. Ewing
Title: General Partner
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EXHIBIT "A"
-----------
AMENDED AND RESTATED
MANAGEMENT AGREEMENT
BETWEEN
EWING & PARTNERS AND
VALUE PARTNERS, LTD.
AGREEMENT dated effective as of January 1, 1998, by and between Ewing &
Partners, a Texas general partnership (the "Management Company"), and Value
Partners, Ltd., a Texas limited partnership (the "Partnership").
1. The capitalized terms used without definition in this Agreement have the
respective meanings specified in the Limited Partnership agreement governing the
Partnership (the "Partnership Agreement") as in effect on the date hereof.
2. The Partnership agrees to bear all Operating Expenses (as hereinafter
defined) of the Management Company which are attributable to the Partnership on
the terms and conditions herein set forth. To the extent that the Management
Company pays or has paid such Operating Expenses attributable to the Partner-
ship, the Partnership will reimburse the Management Company. Operating Expenses
include all expenses incident to operating the business of the Partnership
including, but not limited to, expenses incurred in investigating and monitoring
investments for the Partnership; any taxes which may be assessed against the
Partnership; outside accountants and auditing expenses; custodian's fees;
commissions or brokerage fees or similar charges incurred in connection with
the purchase and sale of securities (including any merger fees payable to third
parties); interest expense for borrowed money; all expenses attributable to the
Partnership relating to litigation and threatened litigation involving the
Partnership; normal and extraordinary investment banking, legal and accounting
services provided to the Partnership, unless such services are provided by
employees of the Management Company; all expenses incurred in connection with
the organization of the Partnership; and all other nonrecurring or extraordinary
expenses attributable to the business of the Partnership. In addition, if the
Management Company's duties under this Agreement necessitate the renting of
office space in addition to the premises already occupied by the Management
Company, or the purchase of additional equipment, such expenses shall be
considered operating expenses of the Partnership. Expenses payable by the
Management Company for which it will not be reimbursed by the Partnership
include compensation of employees of the Management Company (including salaries
of the general partners of the Management Company in their capacity as employees
of the Management Company) and expenses associated with the Management Company's
office space, equipment and facilities (including its telephone system).
<PAGE>
3. The Management Company agrees to maintain a staff trained and experienced
in the business of providing financial support and business counsel. Such staff
shall be adequate for the performance of the Management Company's duties under
this Agreement. Services to be rendered by the Management Company shall include
identification of potential investments to be made by the Partnership, the
provision of administrative, accounting and clerical services to the Partner-
ship, the coordination of consultants in connection with the acquisition of
investment opportunities, and the provision of advisers and consultants for
the management of investment opportunities acquired by the Partnership. The
Management Company shall also render assistance within the areas of expertise
of its staff. In addition to the services of its own staff, the Management
Company will arrange for and coordinate the services of other professionals and
consultants as the General Partner of the Partnership may deem appropriate. The
management, policies and operations of the Partnership shall be the
responsibility of the General Partner acting pursuant to and in accordance
with the Partnership Agreement and all decisions relating to Partnership
matters, including the selection and management of the Partnership's invest-
ments, shall be made by the General Partner acting pursuant to and in accordance
with the Partnership Agreement.
4. Subject to the limitations set forth below, the Partnership shall pay the
Management Company a quarterly management fee (the "Management Fee") which shall
be, for each fiscal quarter, an amount equal to 0.25% of the Net Asset Value of
the Partnership as of the last day of the fiscal quarter. The Management Fee is
payable as of the close of the last day of the fiscal quarter and is subject to
year-end adjustment in connection with the Partnership's audit.
5. Commencing on the date hereof, services shall be performed hereunder for
the term of the Partnership as set forth in the Partnership Agreement (including
any extensions thereof) plus one year from the end of said term or until such
time as liquidation of the Partnership is completed, whichever is sooner.
However, if the Partnership is dissolved prior to expiration of its specified
term, this Agreement shall terminate one year from the date of such dissolution
or upon completion of the liquidation of the Partnership, whichever is sooner.
6. This Agreement may also be terminated without cause and without penalty
at any time on 180 day's prior written notice to the Partnership.
7. To the extent permitted by state or federal law, the Management Company
shall have no liability to the Partnership or to any Partner for any loss
suffered by the Partnership which arises out of any action or inaction by the
Management Company if the Management Company, in good faith, determined that
such course of conduct was in the best interests of the Partnership and such
course of conduct did not constitute gross negligence or misconduct of the
Management Company. To the extent permitted by state or federal law, the
Management Company shall be indemnified by the Partnership against any losses,
judgments, liabilities, expenses, and amounts paid in settlement of any claims
sustained by it in connection with the Partnership, including but not limited to
any judgment, award, settlement, reasonable attorneys' fees, and other costs
or expenses incurred in connection with the defense or settlement of any actual
or threatened action, proceeding or claim,
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provided that the same was not the result of gross negligence or misconduct on
the part of the Management Company.
8. This Agreement can be modified or amended only by a writing signed by the
parties hereto and only with the written consent of a Majority in Interest of
the Limited Partners of the Partnership, determined as provided in the Partner-
ship Agreement.
EWING & PARTNERS
By: /s/ Timothy G. Ewing
---------------------
Timothy G. Ewing
Managing Partner
VALUE PARTNERS, LTD.
By: EWING & PARTNERS,
General Partner
By: /s/ Timothy G. Ewing
----------------------------------
Timothy G. Ewing, Managing Partner
3
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<PAGE>
EXHIBIT 4
JOINT FILING AGREEMENT
In accordance with Rule 13d-1(k) under the Securities Exchange Act of 1934,
as amended, the undersigned agree to the joint filing on behalf of each of them
of a Statement on Schedule 13D (including any and all amendments thereto) with
respect to the Common Stock, par value $.0001 per share, of Wilshire Real Estate
Investment Trust Inc., and further agree that this Joint Filing Agreement
shall be included as an Exhibit to such joint filings.
The undersigned further agree that each party hereto is responsible for
timely filing of such Statement on Schedule 13D and any amendments thereto, and
for the accuracy and completeness of the information concerning such party
contained therein; provided, however, that no party is responsible for the
accuracy or completeness of the information concerning any other party, unless
such party knows or has reason to believe that such information is inaccurate.
This Joint Filing Agreement may be signed in counterparts with the same
effect as if the signature on each counterpart were upon the same instrument.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
February 8, 1999.
VALUE PARTNERS, LTD.
By: EWING & PARTNERS,
as General Partner
By: /s/ Timothy G. Ewing
---------------------------
Timothy G. Ewing,
as Managing Partner
EWING & PARTNERS
By: /s/ Timothy G. Ewing
---------------------------
Timothy G. Ewing,
as Managing Partner
/s/ Timothy G. Ewing
---------------------------
Timothy G. Ewing
<PAGE>
