Registration of Securities Issued in a Business-Combination Transaction — Form S-4
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-4 Registration Statement 278 1.27M
7: EX-3.10 Bylaws of Ahi Properties I, Inc. 13 79K
8: EX-3.11 Certificate of Incorporation & Amendments Thereto 4 45K
9: EX-3.12 Bylaws of Ai Capital Corp. 14 93K
10: EX-3.13 Certificate of Incorporation of Armor Brands, Inc. 3 47K
11: EX-3.14 Bylaws of Armor Brands, Inc. 13 79K
12: EX-3.15 Certificate of Formation and Amendments of Armor 2 40K
13: EX-3.16 Operating Agreement of Armorgroup Services, LLC 3 42K
14: EX-3.17 Certificate of Incorporation and Amendments 6 52K
15: EX-3.18 Bylaws of Armor Holdings Forensics, Inc. 14 80K
16: EX-3.19 Certificate of Formation of Armor Holdings Gp, LLC 1 38K
17: EX-3.20 Amended & Restated Operating Agreement of Armor 4 43K
18: EX-3.21 Certificate of Formation of Armor Holdings 1 38K
19: EX-3.22 Amended and Restated Operating Agreement of Armor 4 43K
20: EX-3.23 Certificate of Formation of Armor Holdings 1 38K
21: EX-3.24 Operating Agreement of Armor Holdings Mobile 11 72K
22: EX-3.25 Certificate of Formation of Armor Holdings Payroll 1 38K
23: EX-3.26 Operating Agreement of Armor Holdings Payroll 4 42K
24: EX-3.27 Certificate of Incorporation of Armor Holdings 4 48K
25: EX-3.28 Bylaws of Armor Holdings Products, Inc. 15 83K
26: EX-3.29 Certificate of Incorporation of Armor Holdings 3 46K
27: EX-3.30 Bylaws of Armor Holdings Properties, Inc. 15 83K
28: EX-3.31 Certificate of Incorporation & Amendments Thereto 4 48K
29: EX-3.32 Bylaws of Armor Holdings Safety Products Company 13 79K
30: EX-3.33 Certificate of Incorporation and Amendments 5 50K
31: EX-3.34 Bylaws of Asd Capital Corp. 14 93K
32: EX-3.35 Certificate of Incorporation & Amendments 2 41K
33: EX-3.36 Bylaws of B-Square, Inc. 21 88K
34: EX-3.37 Certificate of Incorporation and Amendments 4 48K
35: EX-3.38 Bylaws of Break Free Armor Corp. 13 79K
36: EX-3.39 Certificate of Incorporation and Amendments 9 51K
37: EX-3.40 Bylaws of Break Free, Inc. 18 86K
38: EX-3.41 Certificate of Incorporation of Casco 2 40K
39: EX-3.42 Bylaws of Casco International, Inc. 29 113K
40: EX-3.43 Certificate of Incorporation and Amendments 5 49K
41: EX-3.44 Bylaws of Ccec Capital Corp. 15 94K
42: EX-3.45 Certificate of Incorporation of Cdr International 2 38K
43: EX-3.46 Bylaws of Cdr International, Inc. 15 67K
44: EX-3.47 Certificate of Incorporation 3 46K
45: EX-3.48 Bylaws of Defense Technology Corp. of America 15 83K
46: EX-3.49 Articles of Incorporation 10 56K
2: EX-3.5 Certificate of Incorporation of 911 Ep, Inc. 4 48K
47: EX-3.50 Bylaws of Hatch Imports, Inc. 13 65K
48: EX-3.51 Certificate of Incorporation of Identicator, Inc. 4 48K
49: EX-3.52 Bylaws of Identicator, Inc. 13 79K
50: EX-3.53 Cert. of Incorporation of International Center 3 44K
51: EX-3.54 Bylaws of Intl Center for Safety 16 94K
52: EX-3.55 Certificate of Incorporation of Monadnock 3 46K
53: EX-3.56 Bylaws of Monadnock Lifetime Products, Inc. (De) 13 80K
54: EX-3.57 Articles of Incorporation of Monadnock Police 6 49K
55: EX-3.58 Bylaws of Monadnock Police Training Council, Inc. 29 113K
56: EX-3.59 Certificate of Limited Partnership & Amendments 13± 102K
3: EX-3.6 Bylaws of 911 Ep, Inc. 13 79K
57: EX-3.60 Limited Partnership Agreement & Amendments Thereto 67 195K
58: EX-3.61 Articles of Organization of Nap 2± 45K
59: EX-3.62 Operating Agreement and Amendments Thereto of Nap 33 140K
60: EX-3.63 Certificate of Incorporation of Monadnock Lifetime 4 45K
61: EX-3.64 Bylaws of Monadnock Lifetime Products, Inc. (Nh) 29 113K
62: EX-3.65 Cert. of Incorporation of Network Audit 5 52K
63: EX-3.66 Bylaws of Network Audit Systems, Inc. 13 80K
64: EX-3.67 Cert. of Incorporation & Amendments Thereto 4 48K
65: EX-3.68 Bylaws 13 79K
66: EX-3.69 Certificate of Formation of O'Gara-Hess 5 48K
4: EX-3.7 Certificate of Incorporation of Ahi Bulletproof 3 46K
67: EX-3.70 Operating Agreement of O'Gara-Hess 11 71K
68: EX-3.71 Cert. of Incorporation of Pro-Tech Armored 5 51K
69: EX-3.72 Bylaws of Pro-Tech Armored Products 26 77K
70: EX-3.73 Certificate of Incorporation and Amendment 5 52K
71: EX-3.74 Bylaws of Ramtech Development Corp. 13 79K
72: EX-3.75 Amended and Restated Articles of Incorporation 11 53K
73: EX-3.76 Bylaws of Safari Land Ltd., Inc. 27 106K
74: EX-3.77 Certificate of Incorporation of Safariland 1 38K
75: EX-3.78 Bylaws of Safariland Government Sales, Inc. 22 137K
76: EX-3.79 Certificate of Incorporation of Sai Capital Corp. 6 54K
5: EX-3.8 Bylaws of Ahi Bulletproof Acquisition Corp. 13 79K
77: EX-3.80 Bylaws of Sai Capital Corp. 15 94K
78: EX-3.81 Certificate of Incorporation 5 51K
79: EX-3.82 Bylaws of Simula Aerospace & Defense Group, Inc. 15 95K
80: EX-3.83 Certificate of Incorporation of Simula, Inc. 7 55K
81: EX-3.84 Bylaws of Simula, Inc. 16 96K
82: EX-3.85 Certificate of Incorporation of Simula Polymer 3 45K
83: EX-3.86 Bylaws of Simula Polymer Systems, Inc. 15 91K
84: EX-3.87 Articles of Incorporation 3 45K
85: EX-3.88 Bylaws of Simula Technologies, Inc. 15 91K
86: EX-3.89 Cert. of Incorporation & Amendments Thereto 4 46K
6: EX-3.9 Certificate of Incorporation of Ahi Properties I 3 47K
87: EX-3.90 By-Laws of Simula Transportation Equipment 15 94K
88: EX-3.91 Certificate of Incorporation of Speedfeed 3 46K
89: EX-3.92 Bylaws of Speedfeed Acquisition Corp. 13 79K
90: EX-3.93 Articles of Incorporation of the O'Gara Company 4 46K
91: EX-3.94 Bylaws of the O'Gara Company 12 66K
92: EX-4.2 First Supplemental Indenture 17 68K
93: EX-4.3 Second Supplement Indenture 19 78K
94: EX-4.4 Third Supplemental Indenture 19 78K
95: EX-4.6 Form of New Note 11 68K
96: EX-12.1 Statement of Computation of Ratio of Earnings 1 39K
97: EX-21.1 Subsidiaries of Armor Holdings, Inc. 6 49K
98: EX-23.1 Consent of Pricewaterhousecoopers LLP 1 37K
99: EX-23.2 Consent of Deloitte & Touche LLP 1 38K
100: EX-25.1 Form T-1 8 60K
101: EX-99.1 Form of Letter to Dtc Participants 2 42K
102: EX-99.2 Form of Letter of Transmittal 20 99K
103: EX-99.3 Form of Notice of Guaranteed Delivery 6 49K
104: EX-99.4 Form of Instruction to Book-Entry Transfer 2 40K
105: EX-99.5 Form of Letter to Clients 2 39K
106: EX-99.6 Guidelines for Certification of Taxpayer Id 4 47K
107: EX-99.7 Form of Exchange Agent Agreement 11 64K
EX-3.60 — Limited Partnership Agreement & Amendments Thereto
Exhibit Table of Contents
LIMITED PARTNERSHIP AGREEMENT
NAP PROPERTIES, LTD.
A California Limited Partnership
LIMITED PARTNERSHIP AGREEMENT
TABLE OF CONTENTS
Page
----
SECTION 1: DEFINITIONS
1.1 Affiliate ...................................................... 2
1.2 Allocations .................................................... 3
1.3 Assignee ....................................................... 3
1.4 Bankruptcy ..................................................... 3
1.5 Capital Account ................................................ 3
1.6 Internal Revenue Code .......................................... 3
1.7 Distributions .................................................. 4
1.8 Event of Dissolution ........................................... 4
1.9 General Partner ................................................ 4
1.10 Initial Limited Partner ........................................ 4
1.11 Invested Capital ............................................... 4
1.12 Limited Partner ................................................ 4
1.13 Majority for Voting Purposes (Limited Partners) ................ 4
1.14 Minimum Gain ................................................... 5
1.15 Net Income and Net Loss ........................................ 5
1.16 Net Proceeds From Operations ................................... 5
1.17 Net Proceeds From Sales or Refinancings ........................ 5
1.18 Partner ........................................................ 5
1.19 Partnership .................................................... 5
1.20 Percentage Interest ............................................ 5
1.21 Property ....................................................... 6
1.22 Reserves ....................................................... 6
1.23 Tax Matters Partner ............................................ 6
SECTION 2: ORGANIZATION
2.1 Authority To Do Business ....................................... 6
2.2 Certificate Of Limited Partnership ............................. 6
2.3 Purpose ........................................................ 6
2.4 Partnership Name ............................................... 7
2.5 Place Of Business .............................................. 7
2.6 Admission Of Limited Partners .................................. 7
2.7 Initial Limited Partner ........................................ 8
SECTION 3: TERM
3.1 Commencement ................................................... 8
3.2 Dissolution .................................................... 8
3.3 Continuation ................................................... 9
3.4 Authority To Wind Up ........................................... 10
SECTION 4: CAPITAL
4.1 Capital Contributions .......................................... 10
4.2 Additional Limited Partners .................................... 10
ii
Table of Contents (Cont'd)
4.3 General Partner as Limited Partner ............................. 11
4.4 Capital Account ................................................ 11
4.5 Loans .......................................................... 13
4.6 Reserves ....................................................... 14
SECTION 5: ALLOCATIONS AND DISTRIBUTIONS
5.1 Net Income and Net Loss ........................................ 14
5.2 Distributions .................................................. 15
5.3 Dissolution .................................................... 15
5.4 Apportionment Among Partners ................................... 16
5.5 Allocation On Transfer of Interest in Partnership .............. 16
5.6 Return of Distributions ........................................ 16
SECTION 6: PARTNERSHIP EXPENSES
6.1 Direct Expenses ................................................ 17
6.2 Reimbursable Expenses .......................................... 17
SECTION 7: BOOKS AND RECORDS
7.1 Records ........................................................ 18
7.2 Delivery of Records to Limited Partner and Inspection .......... 19
7.3 Reports ........................................................ 20
7.4 Tax Returns .................................................... 20
7.5 Tax Matters Partner ............................................ 20
SECTION 8: CHANGES IN MEMBERSHIP
8.1 Additional Partners ............................................ 21
8.2 Transfer Restrictions of Partnership Interest .................. 22
8.3 Permitted Transfers of Partnership Interest .................... 23
8.4 Buy-Out Events ................................................. 23
8.5 Effect of Buy-Out Event ........................................ 25
8.6 Procedure for Sale and Purchase ................................ 26
8.7 Purchase Price ................................................. 28
8.8 Insurance Policies ............................................. 29
8.9 Payment and Transfer of Available Interest ..................... 30
8.10 Notes and Security ............................................. 32
SECTION 9: MANAGEMENT
9.1 Control In General Partner ..................................... 33
9.2 Acts and Voting of General Partner ............................. 35
9.3 Devotion of Time ............................................... 35
9.4 Indemnification of General Partner ............................. 35
9.5 Investment Opportunities ....................................... 36
9.6 Other Matters Concerning the General Partner ................... 36
iii
Table of Contents (Cont'd)
SECTION 10: LIMITED PARTNERS' VOTING RIGHTS AND MEETINGS
10.1 No Management and Control ...................................... 37
10.2 Voting Rights .................................................. 38
10.3 Limitations .................................................... 38
10.4 Meetings of Partners ........................................... 39
10.5 Voting Procedures .............................................. 39
10.6 Action Without a Meeting ....................................... 40
10.7 Waiver of California Corporations Code Section 15637 ........... 40
SECTION 11: GENERAL PARTNER'S WITHDRAWAL OR TERMINATION
11.1 Withdrawal or Termination ...................................... 41
11.2 Liability on Removal or Withdral ............................... 41
SECTION 12: SPECIAL POWER OF ATTORNEY
12.1 Attorney-In-Fact ............................................... 42
12.2 Special Provisions ............................................. 43
12.3 Signatures ..................................................... 43
SECTION 13: REORGANIZATION
13.1 Limited Partner Approval ....................................... 43
13.2 Incorporation .................................................. 44
13.3 Merger ......................................................... 44
13.4 Valuation ...................................................... 44
SECTION 14: MISCELLANEOUS
14.1 Amendments ..................................................... 45
14.2 Arbitration .................................................... 45
14.3 Attorneys Fees ................................................. 45
14.4 Capacity To Sign ............................................... 45
14.5 Counterparts ................................................... 45
14.6 Covenant To Sign Documents ..................................... 46
14.7 Cross-References ............................................... 46
14.8 Entire Agreement ............................................... 46
14.9 Gender and Number .............................................. 46
14.10 Governing Law .................................................. 46
14.11 Headings ....................................................... 46
14.12 Joint and Several Liability .................................... 47
14.13 Notices ........................................................ 47
14.14 No Waiver....................................................... 47
14.15 Severability ................................................... 48
14.16 Successors and Assigns ......................................... 48
iv
Table of Contents (Cont'd)
SIGNATURES
General Partner ................................................ 48
Limited Partner ................................................ 48
v
LIMITED PARTNERSHIP AGREEMENT
OF
NAP PROPERTIES, LTD.,
a California Limited Partnership
This Limited Partnership Agreement ("Agreement") is made on August 11, 1989
between NEALE A. PERKINS ("Perkins"), ARLENE HAMEL ("Hamel") and DAVID M. HOLMES
("Holmes"), collectively, the "General Partner" or the "General Partners," and
NEALE A. PERKINS, (the "Initial Limited Partner"). The General Partner and the
Initial Limited Partner are sometimes referred to as the "Partners."
R E C I T A L S
A. All the Partners presently are employees of or affiliated with
Safariland Ltd., Inc. a California corporation ("Safariland"), of which Perkins
is the principal shareholder.
B. The Partnership Property, as defined below, initially shall be leased to
Safariland.
1
C. Except as otherwise provided in this Agreement or an amendment to it,
the parties intend that Partnership interests will be held by Perkins and
employees of or persons affiliated with Safariland (e.g., Holmes is legal
counsel to and a member of the Executive Committee of Safariland).
By this Agreement and with reference to the foregoing Recitals, the
Partners join together to form a limited partnership under the California
Revised Limited Partnership Act and agree to all the terms of this Agreement.
SECTION 1
DEFINITIONS
1. When used in this Agreement, the following terms shall have the meanings
stated in this Section, and not those stated in the California Revised Limited
Partnership Act:
1.1 Affiliate. (a) A person directly or indirectly controlling, controlled
by or under common control with another person; (b) a person owning or
controlling 10% or more of the outstanding voting securities or beneficial
interests of another person; (c) an officer, director or partner of another
person. "Person" includes any natural person, partnership, corporation,
association or other legal entity. Control includes the terms "controlled by"
and "under common control with" and means the
2
possession, direct or indirect, of the power to direct or cause the direction of
the management and policies of a person, whether through the ownership of voting
securities, by contract, or otherwise.
1.2 Allocations. The Allocations of the Partnership's Net Income, Net Loss
and other items of income loss, gain or credit, made for Federal income tax
purposes and shown in the Partnership's Federal income tax return.
1.3 Assignee. A person who has acquired a beneficial interest in the
Partnership from a Limited Partner in compliance with the terms of the Agreement
but who is not a substituted Limited Partner.
1.4 Bankruptcy. Institution of any proceedings under Federal or State laws
for relief of debtors, including the filing of a voluntary or involuntary
petition under the Federal Bankruptcy Law; an adjudication as insolvent or
bankrupt; an assignment of property for the benefit of creditors; the
appointment of a receiver, trustee, or a conservator of any substantial portion
of assets. Failure to obtain the dismissal of a proceeding under this Section or
the removal of a conservator, receiver or trustee within 60 days after either
event shall also be considered Bankruptcy.
1.5 Capital Account. As defined in Section 4.4.
1.6 Internal Revenue Code. The Internal Revenue Code of 1986, as amended,
or corresponding provisions of subsequent
3
revenue laws.
1.7 Distributions. Cash or property distributed to Partners arising from
their interests in the Partnership, other than payments to Partners for services
or as repayment of loans.
1.8 Event of Dissolution. As defined in Section 3.2.1.
1.9 General Partner. The persons named above and referred to collectively
as the General Partner and any person or persons who are successors to the named
General Partners.
1.10 Initial Limited Partner. The person named above as the Initial
Limited Partner, with the rights described in Section 2.7.
1.11 Invested Capital. The money contributed to the Partnership by a
Partner as capital under Section 4.1, including contributions when this
Partnership is formed and later contributions.
1.12 Limited Partner. The persons listed on the signature page as Limited
Partners and any person who becomes a Limited Partner by substitution after
receiving an assignment from a Limited Partner and the General Partner's
consent.
1.13 Majority for Voting Purposes (Limited Partners. The Limited Partners
collectively holding more than two-thirds of the Percentage Interest of all the
Limited Partners. The definition of Majority supersedes and prevails over the
Corporations Code Section 15611(1) definition of Majority.
4
1.14 Minimum Gain. The "Partnership Minimum Gain" as defined in Treasury
Regulation Section 1.704-1(b).
1.15 Net Income and Net Loss. The Net Income or Net Loss of the Partnership
for Federal income tax purposes, as determined by sound principles of tax
accounting, as applied by the Partnership's accountants.
1.16 Net Proceeds From Operations. Gross Revenues generated by the Property
and miscellaneous sources other than Net Proceeds From Sales or Refinancings,
less cash expenditures, fees for services to the General Partner or any
Affiliate of the General Partner, debt service, operating expenses, and amounts
set aside for reserves.
1.17 Net Proceeds From Sales or Refinancings. Proceeds from a sale or
refinancing of the Property after deducting expenses relating to the transaction
and retention of reasonable reserves, or net condemnation proceeds, or insurance
proceeds not used to rebuild or replace the affected property.
1.18 Partner. Any person who is a General Partner or a Limited Partner in
the Partnership.
1.19 Partnership. The limited partnership formed by the Agreement.
1.20 Percentage Interest. A Partner's percentage interest as set forth on
the signature page, unless modified under the Agreement; provided, it is the
intent of the parties that the General Partner(s) collectively shall own a 90%
5
Percentage Interest and the Limited Partners collectively shall own a 10%
Percentage Interest in the Partnership.
1.21 Property. The real property commonly known as approximately 5.64 acres
located at the corner of Mission Boulevard and Turner Avenue in the City of
Ontario, County of San Bernardino, California.
1.22 Reserves. A sum of money retained by the Partnership for
contingencies, as described in Section 4.5.
1.23 Tax Matters Partner. A Partner as defined in Section 7.5.
SECTION 2
ORGANIZATION
2.1 Authority To Do Business. The Partnership shall hold, operate, and
manage the Property and enter into contracts and do business as a limited
partnership.
2.2 Certificate of Limited Partnership. A Certificate of Limited
Partnership ("Certificate") under California Corporations Code Section 15621
shall be prepared, signed by the General Partner and filed in the Office of the
California Secretary of State.
2.3 Purpose. The purpose and activity of the Partnership shall be limited
as stated in this Section.
2.3.1 The purpose of the Partnership is to purchase, manage, finance,
refinance, and hold for investment and
6
disposition the Property.
2.3.2 Besides the primary purpose stated in Subsection 2.3.1, the
Partnership may purchase any real or personal property, make any investment, and
engage in any joint venture, general partnership, limited partnership, or other
business activity proposed by the General Partner and not prohibited by law.
2.3.3 The Partnership may do all things necessary, in the General
Partner's opinion and not prohibited by the Agreement or any law, to accomplish
the purposes of the Partnership.
2.4 Partnership Name. The name of the Partnership shall be "NAP PROPERTIES,
LTD., a California Limited Partnership" or such other name as the General
Partner may choose.
2.5 Place of Business. The principal place of business for the Partnership
shall be 1941 South Walker Avenue, Monrovia, California, 91016, or such other
place as the General Partner may choose.
2.6 Admission of Limited Partners. Persons will be admitted as Limited
Partners as follows:
2.6.1 Persons who have (a) signed the Agreement or a counterpart copy
of the Agreement; (b) made the required payment of Invested Capital; and (c)
been accepted by the General Partner to become Limited Partners.
2.6.2 Persons who purchase Limited Partnership
7
interests on the offering and issuing of additional interests after the initial
organization of the Partnership shall be admitted and become Limited Partners
according to the terms of the later offering and issuance.
2.6.3 The General Partner may establish additional reasonable rules
and procedures for the admission of additional or substitute Limited Partners
not otherwise inconsistent with this Agreement.
2.7 Initial Limited Partner. The Initial Limited Partner shall be a Limited
Partner to the extent of the Invested Capital contributed by the Initial Limited
Partner, provided that at the option of the General Partner or the Initial
Limited Partner, exercisable by notice within 60 days of the admission of any
other Limited Partner, the Initial Limited Partner's Invested Capital shall be
returned and he or she shall no longer be a Limited Partner.
SECTION 3
TERM
3.1 Commencement. The Partnership term shall begin on August 11, 1989, the
date of filing of the Certificate with the Secretary of State.
3.2 Dissolution.
3.2.1 The Partnership shall dissolve on the earlier of December 31,
2015, or the occurrence of an Event of
8
Dissolution. Each of the following shall be an Event of Dissolution:
(a) Sale of all or substantially all the Partnership's assets.
(b) Ceasing of the General Partner to be a General Partner unless
(i) at least one other General Partner remains, in which event the remaining
General Partner shall continue the business of the Partnership or (ii) all
Partners agree in writing to continue the business of the Partnership and to
admit one or more General Partners.
(c) Entry of a judicial decree of dissolution.
3.2.2 The occurrence of an Event of Dissolution shall dissolve the
Partnership and the agency relationship between the Limited Partners and the
General Partner.
3.2.3 After a dissolution, the Partnership's assets shall be
liquidated and the proceeds distributed as provided in Section 5.3.
3.2.4 When appropriate, the General and Limited Partners shall file a
Certificate of Dissolution, Certificate of Cancellation, or Certificate of
Continuation.
3.3 Continuation.
3.3.1 On occurrence of an Event of Dissolution, the Limited Partners
may continue the business of the Partnership in a new limited partnership on the
same terms as in the Agreement and with a new General Partner elected by a
Majority.
9
3.3.2 Despite Subsection 3.3.1, if the General Partner ceases to be a
General Partner and there is no remaining or surviving General Partner,
admission of a new General Partner or a decision to continue the business of the
Partnership shall be approved by the affirmative vote of all the Limited
Partners. Expenses incurred in the continuation, or attempted continuation, of
the Partnership shall be considered expenses of the Partnership.
3.4 Authority To Wind Up. If the Partnership is dissolved and not
reconstituted, the person designated by the Court decree or a vote of a Majority
shall wind up the affairs of the Partnership and shall be entitled to
compensation as approved by the Court or by a vote of a Majority.
SECTION 4
CAPITAL
4.1 Capital Contributions.
4.1.1 Each Partner has contributed, or will contribute within 120 days
of the date of this Agreement the amount shown next to his or her name on the
signature page.
4.1.2 Limited Partners shall not be required to contribute additional
capital.
4.2 Additional Limited Partners. Additional Limited Partners may be
admitted to the Partnership at any time as
10
proposed by the General Partner and in accordance with Section 2.6. Additional
Limited Partners shall be admitted effective as of the first day of the first
calendar month after the month in which the additional Limited Partner has
contributed Invested Capital. The additional Limited Partners' Percentage
Interest shall be that set forth on the signature page of this Agreement or an
amendment admitting the additional Limited Partner.
4.3 General Partner as Limited Partner. A General Partner shall also be a
Limited Partner to the extent that the General Partner's contribution is
identified as that of a Limited Partner in the Partnership records.
4.4 Capital Account.
4.4.1 Each Partner shall have a Capital Account, which shall be
maintained in accordance with Treasury Regulation Section 1.704-1(b). The
Capital Account for each Partner shall include that Partner's Invested Capital
plus the Partner's allocations of Net Income (including income exempt from tax)
and minus the Partner's allocations of Net Loss (including the Partner's share
of any Partnership expenditures that may not be deducted, amortized, or
capitalized for tax purposes) and share of Distributions.
4.4.2 "Adjusted Capital Account" shall mean the balance in a Partner's
Capital Account as of the end of the taxable year after giving effect to the
following adjustments: (a) increasing the Capital Account by any amounts that
the
11
Partner is obligated to restore or is deemed to be obligated to restore under
Treasury Regulation Section 1.704-1(b)(4)(iv)(f) and (b) decreasing the Capital
Account by the items described in Treasury Regulation Section
1.704-1(b)(2)(ii)(d)(4)-(6).
4.4.3 "Adjusted Capital Account Deficit" shall mean the deficit
balance, if any, in a Partner's Adjusted Capital Account as of the end of the
taxable year. This definition is intended to comply with and shall be
interpreted to be consistent with Treasury Regulation Section
1.704-1(b)(2)(ii)(d).
4.4.4 If any Limited Partner unexpectedly receives any adjustments,
allocations, or distributions described in Treasury Regulation Section
1.704-1(b)(2)(ii)(d)(4), (5), or (6), then items of Net Income shall be
specifically allocated to that Limited Partner in an amount and manner
sufficient to eliminate, to the extent required by the Regulation, the Adjusted
Capital Account Deficit of that Limited Partner as quickly as possible. This
Section is intended to comply with and shall be interpreted to be consistent
with the provisions of Treasury Regulation Section 1.704-1(b)(2)(ii)(d).
4.4.5 If there is a net decrease in Partnership Minimum Gain during
any Partnership year, then each Limited Partner who would otherwise have an
Adjusted Capital Account Deficit at the end of that year shall be specially
allocated items of Net Income for that year (and, if necessary, subsequent
years) in an amount and manner sufficient to eliminate the
12
Adjusted Capital Account Deficit as quickly as possible. This Section is
intended to comply with and shall be interpreted to be consistent with the
Minimum Gain chargeback requirements of Treasury Regulation Section
1.704-1(b)(4)(iv)(e).
4.4.6 To the extent an Allocation of Loss to a Limited Partner would
cause the Limited Partner to have an Adjusted Capital Account Deficit, the Loss
shall not be allocated to that Limited Partner and instead shall be allocated to
the General Partner.
4.4.7 It is the intent of the Partnership that the Agreement comply
with the terms and requirements of Treasury Regulation Section
1.704-1(b)(2)(ii)(d), including its provisions for the safe harbor test and the
qualified income offset. Treasury Regulation Section 1.704-1(b)(2)(ii)(d) is
incorporated by reference in the Agreement. If the Partnership determines that
the Allocation provisions of the Agreement are unlikely to be respected for
Federal income tax purposes, the General Partner shall have the authority to
amend the Allocation provisions of the Agreement to the minimum extent necessary
to effect the allocations and distributions plan of the Agreement. The General
Partner shall have the authority, at its sole discretion, to adopt and revise
rules, conventions, and procedures for admitting Limited Partners to reflect
their interests in the Partnership at the close of the year.
4.5 Loans. Any funds over and above Invested Capital and
13
Net Proceeds from Operations or Refinancing necessary or proper to reasonably
carry out the purposes of the Partnership may be loaned to it by the General
Partner at then-prevailing interest rates for similar loans from third parties.
4.6 Reserves. Reserves in an amount reasonably determined by the General
Partner shall be retained out of Invested Capital. When the Reserves are
reduced, the General Partner may replace the Reserves out of Net Proceeds From
Sales or Refinancings, Net Proceeds From Operations, or loans to the
Partnership. Any Reserves remaining on dissolution of the Partnership shall be
held until the final liquidation and then distributed to the Partners as Net
Proceeds From Operation or Net Proceeds from Sale or Refinancing, respectively,
according to the source of the Reserves.
SECTION 5
ALLOCATIONS AND DISTRIBUTIONS
5.1 Net Income and Net Loss. Subject to Section 5.4, Net Income and Net
Loss shall be allocated as follows:
(a) 90% to the General Partner.
(b) 10% to the Limited Partners.
This allocation may be changed pro rata to the extent that all or a portion of
the General Partners' interest in the Partnership becomes a Limited Partnership
interest as provided in this Agreement, whereupon an appropriate amendment shall
be made
14
hereto.
5.2 Distributions. Net Proceeds From Operations and, subject to first
paying off loans to the Partnership from the Partners and, in the case of
Dissolution, subject to Section 5.3, Net Proceeds From Sales and Refinancings
shall be distributed at such time as the General Partner shall reasonably
determine, as follows:
(a) 90% to the General Partner.
(b) 10% to the Limited Partners.
5.3 Dissolution. On dissolution of the Partnership without continuation,
the General Partner shall wind up the Partnership's business, liquidate the
assets, and apply the proceeds to: (a) payment of Partnership debts, including
loans from the General Partner, expenses of the liquidation, except that on
liquidation the debts owed to secured creditors shall be assumed or otherwise
transferred; and (b) creation in a trust account of a reasonable reserve, as
determined by the General Partner, for payment of contingent liabilities and
expenses. The remaining proceeds shall be distributed as Net Proceeds >From
Sales or Refinancings, except that any remaining proceeds representing
previously undistributed Net Proceeds From Operations shall be distributed as
Net Proceeds >From Operations. After passage of a reasonable time and payment of
any contingencies arising in that time, the balance of the reserve shall be
distributed to the Partners. If, after the liquidation and Distribution, any
Partner would have a
15
negative Capital Account, any Net Income resulting from the liquidation shall
first be allocated to that Partner in the amount of the deficit, and then to the
Partners in proportion to their receipt, or their entitlement to receipt, of the
proceeds for the liquidation. If, after these allocations, any Partner still has
a negative Capital Account, the Partner shall contribute to the Partnership cash
in the amount of the remaining deficit.
5.4 Apportionment Among Partners. The Net Income, Net Loss, and
Distributions allocated to the Partners shall be apportioned among them
according to their respective Percentage Interests.
5.5 Allocation on Transfer of Interest in Partnership. On the transfer of
an interest in the Partnership, the distributive share of all items of income,
gain, loss, deduction, or credit associated with that interest for the taxable
year in which the transfer occurs shall be allocated between the transferor and
the transferee according to the relative number of days in the year before and
after the effective date of the transfer.
5.6 Return of Distributions.
5.6.1 Any distribution made to the Partners shall be considered to
comply with all applicable law, including California Corporations Code Section
15666, if the Distribution is made from available Partnership assets.
5.6.2 If a Court of competent jurisdiction finds
16
that a Distribution violates California Corporations code Section 15666, the
Limited Partners shall not be required to return their respective share of the
Distribution made in violation of Section 15666.
5.6.3 Creditors of the Partnership shall be considered to have notice
of the provisions of this Section and the fact that Limited Partners shall not
be required to return a Distribution.
SECTION 6
PARTNERSHIP EXPENSES
6.1 Direct Expenses. The Partnership shall pay all expenses of the
Partnership including, without limitation, (a) all salaries, compensation, and
fringe benefits of personnel employed by the Partnership and involved in the
Partnership business; (b) all costs of borrowed money, taxes, and assessments on
the Property and other taxes applicable to the Partnership; (c) legal, audit,
accounting, consulting, Partnership-related travel expenses, and brokerage fees;
(d) expenses and taxes incurred in the distribution, transfer, and recording of
documents evidencing ownership of an interest in the Partnership or in the
Partnership business; and (e) expenses for the repair, remodeling, leasing,
refinancing, and operation of the Property.
6.2 Reimbursable Expenses. The Partnership shall reimburse
17
the General Partner or Affiliates for the actual cost of goods and materials
used for or by the Partnership. The Partnership shall also pay or reimburse the
General Partner or Affiliates for organization expenses incurred to form the
Partnership. The organization expenses shall include, without limitation, legal
and accounting fees.
SECTION 7
BOOKS AND RECORDS
7.1 Records. The General Partner shall keep at its office in California at
1941 South Walker, Monrovia, California 91016, the following Partnership
documents:
(a) A current list of the full name and last known business or
residence address of each Partner, together with each partner's contribution
and share in profits and losses.
(b) Copies of the Certificate of Limited Partnership and all
Certificates of Amendment and executed copies of any powers of attorney under
which any Certificate has been executed.
(c) Copies of the Agreement and all Amendments to the Agreement.
(d) Copies of the Partnership's Federal, State, and local income tax
or information returns and reports, if any, for the six most recent tax years.
(e) The Partnership's financial statements for the six
18
most recent tax years.
(f) The Partnership's books and records for the current and past three
tax years.
(g) Instruments evidencing the transfer of outstanding Limited
Partnership Interests.
7.2 Delivery of Records to Limited Partner and Inspection.
7.2.1 On the request of a Limited Partner, the General Partner shall
promptly deliver to the requesting Limited Partner, at the expense of the
Partnership, a copy of the information required to be maintained by Subsections
(a)-(g) of Section 7.1.
7.2.2 Each Limited Partner has the right, on reasonable request, to:
(a) Inspect and copy during normal business hours any of the
Partnership records required to be maintained by Section 7.1; and
(b) Obtain from the General Partner, promptly after they are
available, a copy of the Limited Partnership's Federal, State, and local income
tax or information returns for each year.
7.2.3 Despite anything to the contrary in this Agreement, Limited
Partners shall not be entitled to inspect or receive copies of the following:
(a) Internal memoranda of the General Partner, whether relating
to Partnership matters or any other matters;
19
(b) Correspondence and memoranda of advice from attorneys for
the Partnership or the General Partner;
(c) Correspondence and memoranda of advice to or from accountants
for the Partnership or the General Partner; and
(d) Trade secrets and customer lists of the Partnership or the
General Partner, investor information, financial statements of investors or
Limited Partners, supplier lists, and similar and related materials, documents,
and correspondence.
7.3 Reports.
7.3.1 The General Partner shall send to each Partner, within 90 days
after the end of each tax year, the information necessary for the Partner to
complete his or her Federal and State income tax or information returns.
7.3.2 If there are 35 or fewer Limited Partners, the General Partner
shall send to each Partner within 90 days after the end of each tax year a
complete copy of the Partnership's Federal, State, and local income tax or
information returns for the year.
7.4 Tax Returns. The Partnership's tax or fiscal year shall be the calendar
year. The Partnership's accountants shall be instructed to prepare and file
all required income tax returns for the Partnership. The General Partner shall
make any tax election necessary for completion of the Partnership tax return.
7.5 Tax Matters Partner. General Partner Holmes shall be
20
the Tax Matters Partner for purposes of Section 6231 (a) (7) of the Code, and
shall have all the authority granted by the code to the Tax Matters Partner, to
do all of the following:
7.5.1 Enter into a settlement agreement with the Internal Revenue
Service that purports to bind Partners.
7.5.2 File a petition as contemplated in Section 6226(a) or Section
6228 of the Code.
7.5.3 Intervene in any action as contemplated in Section 6226(b)(5) of
the Code.
7.5.4 File any request contemplated in Section 6227(b) of the Code.
7.5.5 Enter into an agreement extending the period of limitations as
contemplated in Section 6229(b)(1)(B) of the Code.
SECTION 8
CHANGES IN MEMBERSHIP
8.1 Additional Partners.
8.1.1 Admission. A new Partner may be admitted to the Partnership by
the written consent of a majority in interest of the General Partner. Each new
Partner shall be admitted only upon executing this Agreement by an appropriate
supplement to it containing the aforementioned consent of the General Partner,
and agreeing to be bound by the terms and provisions of the Agreement as they
may be modified by that supplement or other fully
21
executed supplements or amendments. Admission of a new Partner shall not cause
dissolution or termination of the Partnership.
8.1.2 Interest of New Partner. A newly admitted Partner's capital
contribution, Percentage Interest and share of the Partnership's profits or
losses shall be set forth in the executed amendment or supplement to this
Agreement which contains the consent of the General Partner to the admission of
the new Partner.
8.1.3 Tax Election. The General Partner may, at its sole discretion,
make an election under Section 754 of the Code to adjust the basis of the
Partnership's assets, to reflect the purchase price by an assignee.
8.2 Transfer Restrictions of Partnership Interest.
8.2.1 General Restriction. Except for the special provision concerning
Perkins' Partnership interest, no Partnership interest shall be transferred,
encumbered or in any way alienated or disposed of except under the terms of this
Agreement.
8.2.2 Nonrecognition of Certain Transfers.
(a) The Partnership and its General Partner will not, nor be
compelled to, recognize any transfer of a Partnership interest to any person who
has not delivered to the General Partner an executed supplement to this
Agreement agreeing to be bound by its terms and conditions.
(b) The Partnership and its General Partner will not, nor be
compelled to, recognize any transfer made other
22
than in accordance with the terms of this Agreement.
8.3 Permitted Transfers Of Partnership Interest. A Partner may transfer his
Partnership interest to a grantor's inter vivos trust established exclusively
for the benefit of the Partner and his spouse or issue. Such permitted
transferees shall hold the Partnership interest subject to all the provisions of
this Agreement as if they were original Partners; provided, should any of the
Buy-Out Events set forth below occur with respect to a transferor Partner (e.g.,
death, disability, etc.), then the buy-out rights and obligations contained in
this Agreement shall be fully applicable and a permitted transferee bound by
them.
8.4 Buy-out Events Each of the following events shall constitute a "Buy-Out
Event" affecting Partnership Interests:
8.4.1 Voluntary Sale. Except for Perkins, the intention of a Partner
to sell all or a portion of his Partnership interest for a reason other than
specified in the Buy-Out Events set forth below. In such event, the Effective
Date shall be the date the Partner gives written intention to voluntarily sell
his interest.
8.4.2 Resignation. Except for Perkins, the resignation by a Partner as
an officer, director or employee or, in the case of Holmes as legal counsel and
a member of the Executive Committee of Safariland. In such event, the Effective
Date shall be the date of such resignation.
23
8.4.3 Retirement. Except for Perkins, the retirement of a Shareholder
as an officer, director or employee or, in the case of Holmes as legal counsel
and a member of the Executive Committee of Safariland. In such event, the
Effective Date shall be the date of such retirement.
8.4.4 Termination of Employment. Except for Perkins, the good faith
termination by the Board of Directors, in the best interest of Safariland, of a
Partner as an officer, director or employee or, in the case of Holmes as legal
counsel and a member of the executive Committee of Safariland. In such event,
the Effective Date shall be the date of such termination.
8.4.5 Death. The death of a Partner. If the death is that of Perkins,
his entire interest shall not constitute an offer to sell, shall immediately
become a Limited Partnership interest, and the allocations and distributions
percentage between the General Partner and the Limited Partners set forth in
Section 5 shall be modified by amendment to this Agreement reducing the General
Partner percentage and increasing the Limited Partners percentage by Perkins'
percentage interest in the Partnership. In the event of death, the Effective
Date shall be the date of death of the Partner.
8.4.6 Disability. Except for Perkins, the disability of a Partner for
a continuous period of twenty-four (24) months. The term "disability" shall
mean: "The Partner is not able to perform the substantial and material duties of
his regular
24
occupation with and is not working in or for Safariland. In such event, the
Effective Date shall be the first day following the expiration of the 24-month
period.
8.4.7 Voluntary Bankruptcy. The filing by any Partner of a voluntary
petition in bankruptcy or the making of an assignment for the benefit of
creditors. In such event, the Effective date shall be the date of the filing of
the petition or assignment, whichever is applicable.
8.4.8 Involuntary Bankruptcy. The filing against any Partner of an
involuntary petition in bankruptcy and such petition is not dismissed within
ninety (90) days of the filing. In such event, the Effective Date shall be the
first day after the expiration of the 90-day period.
8.4.9 Dissolution of Marriage. The transfer or award of part or all of
the Partnership interest of a Partner ("Divorced Partner") to his spouse under a
decree of divorce or judgment of dissolution of marriage or separate
maintenance, or under a property settlement or separation agreement; provided,
only that portion of the interest subject to the transfer or award will be
subject to the buy-out provision of this Agreement. In such event, the Effective
Date shall be the date of the transfer or award, as the case may be.
8.5 Effect of Buy-Out Event.
8.5.1 Purchase of Partnership Interest. The occurrence of a Buy-out
Event shall constitute the offer by the
25
separated, deceased, disabled, bankrupt or divorced Partner and/or, as the case
may be, his spouse, personal representative, executor, or administrator, or the
then-trustee of any trust which holds a deceased Partner's Partnership interest
or is a party hereto (for convenience, all referred to as "Selling Partner"), to
sell his Partnership interest to the other Partners ("Remaining Partners").
8.5.2 Partnership Continues. The Partnership shall not dissolve or
terminate on the occurrence of any Buy-Out Event, but its business shall
continue without interruption and without any break in continuity. On the
occurrence of a Buy-Out Event, the Remaining Partners shall not liquidate or
wind up the affairs of the Partnership, except as otherwise provided in this
Agreement, but shall continue to conduct a partnership under the terms of this
Agreement with any successor or transferee of a Selling Partner.
8.5.3 Definition of "Available Interest". The term "Available
Interest" shall refer to that Partnership interest which is subject to the
effect of a Buy-out Event, it being expressly noted that Perkins' interest is
not subject to specified Buy-Out Events.
8.6 Procedure for Sale and Purchase. The sale and purchase of an Available
Interest shall be implemented as provided below.
8.6.1 Remaining Partners' Option to Purchase. For a period of 45
business days following the Effective Date of a Buy-
26
Out Event, the Remaining Partners shall have the option to purchase the
Available Interest (by written Election to the Selling Partner) in the manner
specified immediately below and in Sections 8.7 and 8.9 of this Agreement;
provided, if the Buy-out Event is a Dissolution of Marriage, the Divorced
Partner shall have the first right to purchase that portion of the Available
Interest awarded to his spouse ("Awarded Interest") if practical or legally
permissible; otherwise, the Divorced Partner shall have the right to purchase
any Awarded Interest acquired by the Remaining Partners under this Agreement on
the same terms and conditions as such Awarded Interest were acquired so long as
the Divorced Partner exercises his right by written notice to the Remaining
Partners within 20 days after they were acquired from the Divorced Partner's
spouse (or her heirs, legal representatives, successors or assigns).
(a) If the requests specified in all the Elections exceed the
Available Interest, then each Remaining Partner shall have the right, up to the
request each specified in his Election, to purchase such proportion of the
Available Interest as his Partnership interest bears to the Partnership
interests held by all the Partners electing to purchase.
(b) On or before the end of the 45-day period, the Remaining
Partners together shall determine what portion of the Available Interest was
effective as to each Remaining Partner's Election and each Remaining Partner
shall
27
meet the terms and conditions of the purchase within 10 days thereafter
according to Sections 8.7 (Purchase Price), 8.9 (Payment For and Transfer of
Available Interest) and 8.10 (Notes and Security).
8.6.2 Failure to Purchase All Available Interest. If all the Remaining
Partners do not or are unable to purchase all the Available Interest, then all
the Available Interest may be sold or transferred at any time to any third party
within 90 days from the last date of the option periods provided in this
Agreement. The transferee will hold the Available Interest subject to the
provisions of this Agreement. No transfer of the Available Interest shall be
made after the end of the 90-day period, nor shall any change in the terms of
transfer be permitted, without a written Notice of Intention To Transfer first
being given to the Remaining Partners in which case all the provisions of
Section 8 shall be applicable.
8.7 Purchase Price. The Purchase Price for an Available Interest shall be
determined by appraisal as follows:
8.7.1 Within 45 days after a Buy-Out Event, the Selling Partner and
the Remaining Partners (as a group) either (1) shall jointly appoint an
appraiser for this purpose, or (2) failing this joint action, shall each
separately designate an appraiser and, within 5 days after their appointment,
the two designated appraiser shall jointly designate a third appraiser. The
failure of either the Selling Partner or the Remaining
28
Partners to appoint an appraiser within the time allowed shall be deemed
equivalent to appointment of the appraiser appointed by the other party or
parties. No person shall be appointed or designated an appraiser unless that
person is then a member of the American Institute of Real Estate Appraisers or
the American Society of Appraisers.
8.7.2 If, within 10 days after the appointment of all appraisers, a
majority of the appraisers concur on the value of the interest being appraised,
that appraisal shall be binding and conclusive. If a majority of the appraisers
do not concur within that period, the determination of the appraiser whose
appraisal is neither highest nor lowest shall be binding and conclusive. The
Partnership and the Partner whose interest is to be appraised, or that Partner's
estate or successors, shall share the appraisal expenses equally.
8.7.3 A Partner's interest in the Partnership so appraised shall be
based on that Partner's proportional interest in the Partnership's profits. Real
Estate shall be appraised at fair market value.
8.8 Insurance Policies.
8.8.1 Identification of Policies. In the event the parties hereto
elect to obtain life insurance policies or disability buy-out insurance
policies, or both, for the purpose of purchasing a deceased or disabled
Partner's interest in the Partnership, then the parties shall execute an
appropriate
29
amendment identifying those life insurance policies and/or disability insurance
policies and the manner in which the proceeds of such policies are to be used
for any such purpose.
8.8.2 Unneeded Life Insurance Policies. In the event life insurance
has been purchased by the Partners on the lives of one another to fund the
Buy-Out provisions of this Agreement, then on the death of any Partner each of
the Remaining Partners shall have the option for 60 days to purchase the policy
of life insurance on the Partner's life owned by the Decedent. Each Partner
shall also have the right to purchase the policies on his life within 60 days
after the sale or transfer of all of his Partnership interest, or after
termination of this Agreement. This option shall be exercised by delivering
written notice of exercise to the Decedent's personal representative or to the
owner of the policy and paying the purchase price in cash. The purchase price
shall be equal to the cash surrender value of the policy, reduced by any unpaid
loans made against the policy. If the option is not exercised within that
period, the policy owner may surrender the policy for its cash value or dispose
of it in any other way he sees fit. The parties agree to execute such releases
and assignments as may be necessary to effectuate the provisions of this
paragraph.
8.9 Payment and Transfer of Available Interest.
8.9.1 General Provisions. On the occurrence of any event that leads to
the purchase of an Available Interest under
30
this Agreement, the consideration to be paid for the Interest or portion thereof
shall be paid to the Selling Partner, his estate, or his former spouse, as the
case may be. If the event that leads to the purchase is death of any Partner,
the Remaining Partners shall file the necessary proofs of death and collect the
proceeds of any policies of insurance covered by this Agreement and outstanding
on the life of the deceased Partner. The decedent's personal representative
shall apply for and obtain any necessary Court approval or confirmation of the
sale of the decedent's Interest under this Agreement. Likewise, the parties will
perform all necessary acts to collect under any disability pay-out policies in
the event of a Partner's disability.
8.9.2 Payment by Remaining Partners. The Remaining Partners shall pay
the purchase price, or balance of the purchase price if insurance proceeds were
first applied, in cash or, at their option, shall pay a cash payment of at least
10% of the purchase price or balance of the purchase price, as the case may be,
with the remaining balance paid under a Promissory Note as more fully provided
in Section 8.10 below.
8.9.3 Prompt Payment and Transfer of Available Interest. In all
events, consideration for the Available Interest shall be delivered as soon as
practicable to the person entitled to it, and the Remaining Partners shall cause
the transfer of the Available Interest to be reflected in the Partnership books
and records.
31
8.10 Notes and Security.
8.10.1 Form of Note. The deferred portion of the Purchase Price for
any Available Interest purchased under this Agreement shall be represented by a
Promissory Note executed by each of the purchasing Partners. The Note shall
provide for payment of principal in 12 equal quarterly installments plus accrued
interest on the unpaid balance at the maximum legal rate permitted by law but
not to exceed the rate of 12% per annum, with full privilege of prepayment of
all or any part of the principal at any time without penalty or bonus. Any
prepaid sums shall be applied against the installments thereafter falling due in
inverse order of their maturity, or against all the remaining installments
equally, at the option of the payers. The Note shall provide that, in case of
default, at the election of the holder the entire sum of principal and interest
will immediately be due and payable, and that the makers shall pay reasonable
attorney's fees to the holder in the event suit is commenced because of default.
8.10.2 Pledge of Partnership Interest. The Note shall be secured by a
pledge of the Available Interest being purchased in the transaction to which the
Note relates. The pledgeholder shall be either the Partnership's general counsel
or, if such general counsel is un-willing or unable to act, such other third
party as shall be agreed upon by the seller and purchaser, or purchasers, of the
Available Interest. The Pledge Agreement
32
shall contain such other terms and provisions as may be customary and
reasonable. As long as no default occurs in payments on the Note, the purchasers
shall be entitled to all Partnership rights attached to the pledged Partnership
interest; provided, however, any cash distributions shall be paid to the holder
of the Note as a prepayment of principal. The purchasers shall expressly waive
demand, notice of default, and notice of sale, and shall consent to public or
private sale of the pledged Partnership Interest in the event of default, in
mass or in lots at the option of the pledgeholder, and the seller shall have the
right to purchase at the sale.
SECTION 9
MANAGEMENT
9.1 Control in General Partner. Except as otherwise expressly stated in the
Agreement, the General Partner shall have exclusive control over the
Partnership's business, including the power to assign duties; sign deeds, notes,
deeds of trust, contracts and leases; and assume direction of business
operations. The General Partner shall have all the rights, power, and authority
generally conferred by law or necessary, advisable, or consistent with
accomplishing the Partnership's purposes. Without limiting the generality of the
General Partner's powers, and subject to the applicable voting rights of the
Limited Partners, the General Partner shall have the right
33
to:
9.1.1 Cause the Partnership to enter other partnerships as a general
or limited partner and exercise the authority and perform the duties required of
the Partnership as a partner in any other partnership.
9.1.2 Acquire, hold, and dispose of property or any interest in
property, real or personal.
9.1.3 Borrow money on behalf of the Partnership, encumber Partnership
assets, or place title in the name of a nominee for the purpose of obtaining
financing.
9.1.4 Prepay in whole or in part, refinance, increase, modify, or
extend any obligation.
9.1.5 Manage the Property and employ and supervise a property manager.
9.1.6 Employ from time to time, at the Partnership's expense, building
management agents, other on-site personnel, insurance brokers, real estate
brokers, loan brokers, consultants, accountants, and attorneys.
9.1.7 Pay all organization expenses incurred in the creation of the
Partnership, and all operation expenses incurred in the operation of the
Partnership.
9.1.8 Determine the amount and timing of Distributions.
9.1.9 Open and maintain Partnership bank accounts.
9.1.10 Assume the overall duties imposed on the
34
General Partner by the California Revised Limited Partnership Act.
9.1.11 Adopt and authorize a form of certificate to evidence the
limited partnership interests.
9.2 Acts and Voting of General Partner. All acts permitted or required of
the General Partner under this Agreement shall require the affirmative vote of a
majority in interest of the General Partners and all contracts or all documents
obligating the Partnership shall be signed by two of the General Partners, one
of whom must be Perkins.
9.3 Devotion of Time. The General Partner is not obligated to devote full
time to Partnership affairs. The General Partner may become involved in other
businesses and occupations and other partnerships but shall devote to the
Partnership an amount of time reasonably necessary to manage the Partnership
business and perform the General Partner's duties.
9.4 Indemnification of General Partner. The Partnership, its receiver, or
its trustee shall indemnify, hold harmless, and pay all costs, attorneys' fees,
judgments, and amounts expended in the settlement of any claims against the
General Partner, or its employees, agents, or assignees, arising from any
liability, loss, or damage for acts performed or omitted to be performed by them
in connection with the Partnership business, unless the loss, liability, or
damage was caused by the indemnified person's gross negligence, fraud, or
criminal act.
35
9.5 Investment Opportunities. Neither the General Partner nor any Affiliate
of the General Partner shall be obligated to present any particular investment
opportunity to the Partnership, even if the opportunity is of a character that,
if presented to the Partnership, could be taken by the Partnership, and it shall
have the right to take for its own account or to recommend to others any
investment opportunity.
9.6 Other Matters Concerning the General Partner.
9.6.1 The General Partner shall be protected in relying on and acting,
or refraining from acting, on any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, bond, debenture,
or other paper or document believed by it to be genuine and to have been signed
or presented by the proper party or parties.
9.6.2 The General Partner may execute any power granted or perform any
duty imposed by this Agreement either directly or through agents, including,
without limitation, any Affiliate. The General Partner may consult with counsel,
accountants, appraisers, management consultants, investment bankers, and other
consultants selected by it (who may serve as consultants for the Partnership or
any Affiliate). An opinion by any consultant on a matter that the General
Partner believes to be within its professional or expert competence shall be
full and complete protection for any action taken or omitted by the General
Partner based on the opinion and taken or omitted in good
36
faith. The General Partner shall not be responsible for the misconduct,
negligence, acts, or omissions of any consultant or of any agent or employee of
the Partnership, the General Partner, or an Affiliate and shall assume no
obligations, other than to use due care in selecting all consultants.
9.6.3 All fees, commissions, compensation, and other consideration
received by the General Partner or a partner, director, officer, or shareholder
of the General Partner shall be the exclusive property of the recipient; and the
Partnership shall have no right or claim to these receipts. The General Partner
or a partner, director, officer, or shareholder of the General Partner may
participate in any permitted agreement. This participation shall not constitute
a breach of any duty that the participant owes to the Partnership, the Limited
Partners, or Assignees under the Agreement or by operation of law.
SECTION 10
LIMITED PARTNERS' VOTING RIGHTS AND MEETINGS
10.1 No Management and Control. Limited Partners shall take no part in the
control, conduct, or operation of the Partnership and shall have no right or
authority to act for or bind the Partnership, including during the winding-up
period after dissolution of the Partnership, except that the Limited Partners
may act for and bind the Partnership during the winding-up period
37
when the General Partner has been removed and their acts are first approved by a
Majority.
10.2 Voting Rights. Limited Partners shall have the right, by vote of a
Majority, to approve or disapprove matters as specifically stated in the
Agreement, and no others.
10.2.1 Limited Partners shall have the right to vote on the following
matters:
(a) Election of a successor General Partner, subject to the
unanimous vote requirements of Section 3.3.2;
(b) Election of an additional General Partner; and
(c) Termination and dissolution of the Partnership.
10.2.2 Besides the rights granted in the preceding Subsection 10.2.1,
Limited Partners may vote to the extent and on the terms provided in the
Agreement in the following Sections:
(a) Section 3.4 on winding up the Partnership;
(b) Section 4.1, Subsection 4.1.2 on additional contributions of
capital;
10.2.3 Except as expressly provided in the Agreement, Limited Partners
shall have no voting rights.
10.3 Limitations. No Limited Partner shall have the right or power to (a)
withdraw or reduce its Invested Capital, except as a result of the dissolution
of the Partnership or as otherwise provided by law; (b) bring an action for
partition
38
against the Partnership; (c) cause the termination and dissolution of the
Partnership, except as set forth in the Agreement; or (d) demand or receive
property other than cash in return for its Invested Capital. Except as provided
in the section on Distributions and Allocations, no Limited Partner shall have
priority over any other Limited Partner either for the return of Invested
Capital or for Net Income, Net Loss, or Distributions. Other than on dissolution
of the Partnership as provided by the Agreement, no time has been agreed on when
the contribution of each Limited Partner may be returned. A Partner's obligation
to make a contribution or return money or property to the Partnership may be
compromised by the General Partner's written consent.
10.4 Meetings of Partners.
10.4.1 Meetings of Partners shall be held at the principal place of
business of the Partnership.
10.4.2 Meetings shall be held only when called by either the General
Partner or Limited Partners representing more than 50% of the Percentage
Interests of all the Limited Partners.
10.4.3 Meeting notices and procedures shall conform with California
Corporations Code Section 15637.
10.5 Voting Procedures. A Limited Partner shall be entitled to cast votes
in proporation to his or her Percentage Interest (a) at a meeting, in person, by
written proxy, or by a signed writing directing the manner in which the vote is
to be cast, which writing must be received by the General Partner
39
before the meeting; or (b) without a meeting, by a signed writing directing the
matter in which the vote is to be cast, which writing must be received by the
General Partner on or before the time and date on which the votes are to be
counted. Only the votes of Limited Partners of record on the notice date,
whether at a meeting or otherwise, shall be counted. The General Partners shall
be entitled to vote their Percentage Interest for all matters in the same
fashion as other Limited Partners. The laws of the State of California
pertaining to the validity and use of corporate (or partnership, if applicable)
proxies shall govern the validity and use of proxies given by Limited Partners.
10.6 Action Without a Meeting. Any action that may be taken at a meeting of
the Limited Partners may be taken without a meeting if a consent in writing
setting forth the action to be taken is signed by Limited Partners owning not
less than the minimum percentage of interests that would be necessary to
authorize or take such action at a meeting at which all the Limited Partners
were present and voted.
10.7 Waiver of California Corporations Code Section 15637. The Partners
waive the provisions of the California Corporations Code Section 15637, to the
extent that Section 15637 requires any different procedures, time periods, or
notices, whether substantive or not, for meetings of Limited Partners and voting
by Limited Partners. Instead of any conflicting provisions of California
Corporations Code Section 15637, the Partners
40
agree that the meetings and voting procedures for Limited Partners shall be
governed by this Section.
SECTION 11
GENERAL PARTNER'S WITHDRAWAL, OR TERMINATION
11.1 Withdrawal or Termination. A General Partner shall cease being a
General Partner on the Effective Date of any of the Buy-out Events set forth in
Section 8.4 or on his or her withdrawal, or upon dissolution and termination of
the Partnership.
11.2 Liability on Removal or Withdrawal. A General Partner shall be
discharged from, and the Partnership or any person or persons continuing the
business of the Partnership if it has dissolved shall assume and pay, as they
mature, all Partnership obligations and liabilities that exist on the date of
the General Partner's withdrawal or termination from the Partnership and shall
hold the General Partner harmless from any action or claim arising or alleged to
arise from those obligations and liabilities accruing after that date. The
Partnership or the persons continuing the business of the Partnership shall
promptly pay all creditors of the Partnership as of that date or notify those
creditors (a) of the General Partner's removal or withdrawal, (b) of the General
Partner's discharge from all the Partnership's obligations and liabilities, and
(c) of the
41
assumption thereof by the persons continuing the Partnership's business. The
Partnership, or the persons continuing the business of the Partnership if the
Partnership has dissolved, shall use its or their best efforts to procure and
execute an agreement from the Partnership's creditors discharging the removed or
withdrawing General Partner from liability to creditors as of the date of the
removal or withdrawal.
SECTION 12
SPECIAL POWER OF ATTORNEY
12.1 Attorney-in-Fact. Each Limited Partner grants each of the General
Partners a special power of attorney irrevocably making, constituting, and
appointing each General Partner as the Limited Partners' attorney-in-fact, with
power and authority to act in its name and on its behalf to execute,
acknowledge, and swear to in the execution, acknowledgment, and filing of
documents, including, without limitation:
12.1.1 The certificate of limited partnership and any amendment to the
certificate that, under the laws of the State of California or the laws of any
other State, are required to be filed or that the General Partner elects to
file;
12.1.2 Any other instrument or document required to be filed by the
Partnership under the laws of any State or by any governmental agency, or that
the General Partner elects to file;
42
and
12.1.3 Any instrument or document that may be required to effect the
continuation of the Partnership, the admission of an additional or substituted
Limited Partner, or the dissolution and termination of the Partnership (provided
that the continuation, admission, or dissolution and termination are according
to the terms of this Agreement), or to reflect any reduction in amount of the
Partner's Invested Capital or reduction in the Partner's Capital Accounts.
12.2 Special Provisions. This special power of attorney (a) is a special
power of attorney coupled with an interest, (b) is irrevocable, (c) shall
survive the granting Limited Partner's death or incapacity, and (d) is limited
to the matters stated in Section 12.1.
12.3 Signatures. Each of the General Partners may exercise the special
power of attorney on behalf of each Limited Partner by a facsimile signature of
the General Partner or by signature of the General Partner acting as an
attorney-in-fact for all the Limited Partners.
SECTION 13
REORGANIZATION
13.1 Limited-Partner Approval. Any reorganization described in this Section
may be accomplished by the General
43
Partner's action without Limited-Partner approval.
13.2 Incorporation. The Partnership may be converted into a corporate form
by (a) transfer of the Partnership's assets to a corporation and the issuance of
shares in that corporation to the Partnership, (b) by transfer of the
Partnership interests of all the Partners into a corporation in exchange for the
shares of the corporation, or (c) by other means approved by counsel for the
Partnership and the General Partner.
13.3 Merger. the Partnership's business may be merged into a corporation or
another partnership, either alone or with other partnerships that may be
affiliated with the General Partner.
13.4 Valuation. In determining the number of shares or the Partnership
interest to be received by the Partners in a new entity following an
incorporation or merger, (a) each Partner shall receive a percentage interest
through stock ownership, Partnership interest, or other appropriate format and
indicia of ownership in proportion among the Partners of this Partnership as
nearly as practical equal to the proportion that they share under the
Agreement; and (b) the value of the Partners' interests in this Partnership
shall be the amount the Partners would receive Without regard to Federal or
State income tax consequences after a sale at fair market value of the
Partnership assets and a distribution of the Net Proceeds from Sales or
Refinancings.
44
SECTION 14
MISCELLANEOUS
14.1 Amendments. The Agreement may not be altered or modified except by a
writing signed by the General Partner.
14.2 Arbitration. Any controversy between the Partners involving the
construction or application of any of the terms, covenants, or conditions of the
Agreement shall be submitted to arbitration in Los Angeles, California, on the
request of any Partner, and the arbitration shall comply with and be governed by
the provisions of the commercial arbitration rules of the American Arbitration
Association.
14.3 Attorneys' Fees. In any dispute between the Partners, whether or not
resulting in litigation, the party substantially prevailing shall be entitled
to recover from the other party all reasonable costs, including, without
limitation, reasonable attorneys' fees.
14.4 Capacity To Sign. All Partners covenant that they possess all
necessary capacity and authority to sign and enter this Agreement.
14.5 Counterparts. The Agreement may be signed in counterpart or duplicate
copies, and any signed counterpart or duplicate copy shall be equivalent to a
signed original for all purposes.
45
14.6 Covenant To Sign Documents. Each Partner shall execute, with
acknowledgment or affidavit if required, all documents and writings reasonably
necessary or expedient in the creation of the Partnership and the achievement of
its purpose.
14.7 Cross-References. All cross-references in the Agreement, unless
specifically directed to another agreement or document, refer to provisions
within the Agreement and shall not be considered to be references to the overall
transaction or to any other agreement or document.
14.8 Entire Agreement. The Agreement, which includes the Exhibits, contains
all representations and the entire understanding and agreement among the
parties. Correspondence, memorandums, and oral or written agreements that
originated before the date of the Agreement are replaced in total by the
Agreement unless otherwise expressly stated in the Agreement.
14.9 Gender and Number. As used in the Agreement, the masculine, feminine,
or neuter gender, and the singular or plural number, shall include the others
whenever the context indicates.
14.10 Governing Law. The Agreement shall be governed by and construed
according to the laws of the State of California that would apply if all
Partners were residents of California and the Agreement was made and performed
in California.
14.11 Headings. The titles and headings of the various sections of the
Agreement are intended solely for convenience of reference and are not intended
to explain, modify, or place any
46
construction on any of the provisions of the Agreement.
14.12 Joint and Several Liability. The General Partners and coventurers of
any Partner that is a partnership or joint venture shall be jointly and
severally liable for all obligations of that Partner.
14.13 Notices. Unless otherwise expressly stated in the Agreement, any
notices given under the Agreement shall be in writing and shall be served either
personally or delivered by United States mail, postage prepaid registered or
certified, return receipt requested. Notices may also effectively be given by
transmittal over electronic transmitting devices, such as facsimile, Telex,
telecopy machines, and computers if the party to whom the notice is being sent
has such a device in its office, provided that a complete copy of any notice so
transmitted shall also be mailed in the same manner as required for a mailed
notice. Notices shall be considered received at the earlier of actual receipt or
three days after deposit in United States mail, postage prepaid. Notices shall
be directed to the addresses shown in the Partnership's books and records. Any
Partner may change his or her address for notice purposes by giving notice to
the Partnership under this Section, provided that the address change shall not
be effective until 5 days after notice of the change.
14.14 No Waiver. A Partner's failure to insist on the strict performance of
any covenant or duty required by the Agreement, or to pursue any remedy under
the Agreement, shall hot
47
constitute a waiver of the breach or the remedy.
14.15 Severability. If any part of the Agreement is determined to be
illegal or unenforceable, all other parts shall remain in effect.
14.16 Successors and Assigns. Subject to the restrictions on
transferability contained in the Agreement, the Agreement and all its provisions
shall be binding on and inure to the benefit of the successors and assigns of
the Partners.
IN WITNESS WHEREOF, the Partners have signed the Agreement effective as of
the date first stated above.
Name and Address Capital Contribution Percentage Interest
-------------------------------------------------------------------
General Partner:
/s/ Neale A. Perkins
---------------------- $4,616.67 92 1/3%
NEALE A. PERKINS
/s/ Arlene Hamel
---------------------- $ 166.66 3 1/3%
ARLENE HAMEL
/s/ David M. Holmes
---------------------- $ 166.67 3 1/3%
DAVID M. HOLMES
Limited Partner:
/s/ Neale A. Perkins
---------------------- $ 50.00 1 %
NEALE A. PERKINS
48
FIRST AMENDMENT TO
LIMITED PARTNERSHIP AGREEMENT
NAP PROPERTIES, LTD.,
a California Limited Partnership
THIS FIRST AMENDMENT TO LIMITED PARTNERSHIP AGREEMENT ("First Amendment")
to that certain Limited Partnership Agreement of NAP PROPERTIES, LTD., a
California limited partnership, dated August 11, 1989 ("Agreement"), is entered
into by and between NEALE A. PERKINS ("Perkins"), ARLENE HAMEL ("Hamel") and
DAVID M. HOLMES ("Holmes"), collectively, the "General Partner" or the "General
Partners," and NEALE A. PERKINS, the "Initial Limited Partner." SCOTT T. O'BRIEN
("O'Brien") has executed this First Amendment as an additional General Partner
and shall henceforth be one of the General Partners. The General Partner and the
Initial Limited Partner are sometimes referred to as the "Partners."
1. Additional General Partner. SCOTT T. O'BRIEN shall become a General
Partner of this Limited Partnership and hereby agrees to all the terms and
conditions set forth in the Agreement.
2. Capital Contributions and Percentage Interest.
The capital contributions and percentage interest shown on page 48 of the
Agreement are amended as set forth below opposite the signatures of each party
to this First Amendment.
IN WITNESS WHEREOF, the Partners have signed this First Amendment effective
as of December 4, 1989.
Name and Address Capital Contribution Percentage Interest
------------------------------------------------------------------------
General Partner
/s/ Neale A. Perkins
---------------------- $4,000.00 80%
NEALE A. PERKINS
1941 S. Walker Avenue
Monrovia, CA 91016
/s/ Arlene Hamel
---------------------- $ 166.66 3 1/3%
ARLENE HAMEL
1941 S. Walker Avenue
Monrovia, CA 91016
SIGNATURES CONTINUED ON NEXT PAGE
-1-
/s/ Scott T. O'brien
---------------------- $ 166.67 3 1/3%
SCOTT T. O'BRIEN
1941 S. Walker Avenue
Monrovia, CA 91016
/s/ David M. Holmes
---------------------- $ 166.67 3 1/3%
DAVID M. HOLMES
27281 Las Ramblas, Ste. 155
Mission Viejo, CA 92691
Limited partner:
/s/ Neale A. Perkins
---------------------- $ 500.00 10%
NEALE A. PERKINS
1941 S. Walker Avenue
Monrovia, CA 91016
-2-
SECOND AMENDMENT TO
LIMITED PARTNERSHIP AGREEMENT
NAP PROPERTIES, LTD.,
a California Limited Partnership
THIS SECOND AMENDMENT TO LIMITED PARTNERSHIP AGREEMENT ("Second Amendment")
to that certain Limited Partnership Agreement of NAP PROPERTIES, LTD., a
California limited partnership, dated August 11, 1989 ("Agreement"), is entered
into by and between NEALE A. PERKINS ("Perkins"), SCOTT T. O'BRIEN ("O'Brien"),
ARLENE HAMEL ("Hamel") and DAVID M. HOLMES ("Holmes"), collectively, the
"General Partner" or the "General Partners," and NEALE A. PERKINS, the "Initial
Limited Partner." The General Partner and the Initial Limited Partner are
sometimes referred to as the "Partners."
1. Section 9 (Management), Paragraph 9.2 (Acts and Voting of General
Partner) is hereby revoked in its entirety and the following substituted in its
place:
"9.2 Acts and Voting of General Partner. All acts permitted or
required of the General Partner under this Agreement shall require the
affirmative vote of a majority in number of the General Partners and all
contracts or all documents obligating the Partnership shall be signed by two of
the General Partners."
2. There shall be added to Section 12 (Special Power Of Attorney) a new
paragraph 12.4 which shall read as follows:
"12.4 Attorney In Fact For General Partners. Any General Partner under
this Agreement may appoint another General Partner of the Partnership his or her
Attorney-In-Fact, to act in his or her place or stead in exercising and
performing any rights (including, but not by limitation, voting rights), duties
and. obligations of all kinds and nature which such General Partner may lawfully
exercise or perform under the Agreement or pursuant to the
-1-
laws of the State of California."
IN WITNESS WHEREOF, the Partners have signed this Second Amendment
effective as of October 5, 1990.
General Partner:
/s/ Neale A. Perkins
----------------------------------------
NEALE A. PERKINS
/s/ Arlene Hamel
----------------------------------------
ARLENE HAMEL
/s/ Scott T. O'brien
----------------------------------------
SCOTT T. O'BRIEN
/s/ David M. Holmes
----------------------------------------
DAVID M. HOLMES
Limited Partner:
/s/ Neale A. Perkins
----------------------------------------
NEALE A. PERKINS
-2-
THIRD AMENDMENT TO
LIMITED PARTNERSHIP AGREEMENT
OF NAP PROPERTIES, LTD.,
a California Limited Partnership
THIS THIRD AMENDMENT TO LIMITED PARTNERSHIP AGREEMENT ("Third Amendment")
to that certain Limited Partnership Agreement of NAP PROPERTIES, LTD., a
California limited partnership, dated August 11, 1989 ("Agreement"), is entered
into by and between NEALE A. PERKINS ("Perkins"), SCOTT T. O'BRIEN ("O'Brien"),
ARLENE HAMEL ("Hamel") and DAVID M. HOLMES ("Holmes"), collectively, the
"General Partner" or "General Partners," and the individuals identified on the
signature page below as the "Limited Partners." The General Partner and the
Limited Partner are sometimes referred to as the "Partners."
1. Additional Limited Partners: Withdrawal of Initial Limited Partner. The
individuals identified on the signature page of this Third Amendment as "Limited
Partners" are admitted as limited partners to the Partnership for the Capital
Contributions and Percentage Interest indicated opposite their respective
signatures. Such admissions shall be deemed to comply with Paragraphs 2.6.1 and
8.1.1 of the Agreement. The Initial Limited Partner hereby withdraws pursuant to
Paragraph 2.7 of the Agreement and shall be entitled to the return of his
Capital Contribution.
2. Section 1 (Definitions), Paragraph 1.21 (Property) is deleted in its
entirety and the following inserted in its place:
"1.21 Property. The real property located at 3120 E. Mission
Boulevard, City of Ontario, County of San Bernardino, State of
California.
3. Section 8 (Changes In Membership), Paragraph 8.5.1 (Purchase of
Partnership interest) is deleted in its entirety and the following inserted in
its place:
"8.5.1 purchase of Partnership Interest. The occurrence of a Buy-out
Event shall constitute an offer to sell his or her Partnership
Interest to the other Partners ("Remaining Partners") by the
separated, deceased (except for Perkins but not his immediate
successors), disabled, bankrupt or divorced
-1-
Partner and/or as the case may be, his spouse, personal
representative, executor or administrator, or the then-trustee of any
trust holding a deceased Partner's interest or who is a party hereto
(for convenience, all referred to as "Selling Partner"). Provided, (i)
if the Buy-out Event relates to a General Partner's interest then,
subject to the special provisions concerning Perkins' interest, the
"Remaining Partners" shall be the other General Partners; (ii) if the
Buy-Out Event relates to a Limited Partner's interest (except such an
interest held by the immediate successor or successors to Perkins'
interest), then the "Remaining Partners" shall be the other Limited
Partners; and (iii) if the Buy-out Event relates to the interest of a
Limited Partner who is the immediate successor or successors to
Perkins, then the Remaining Partners shall be all the Partners, both
General and Limited."
4. Section 8 (changes In Membership), Paragraph 8.7 (Purchase Price) is
deleted in its entirety and the following is inserted in its place:
"8.7 Purchase Price. The Purchase Price for an Available Interest
shall be determined as follows:
8.7.1 With 30 days after a Buy-out Event, the Selling Partner
and the Remaining Partners (as a group) shall meet to unanimously
agree upon a value for the Available Interest. Any such agreed value
will be set forth in a writing dated and signed by all the Partners.
8.7.2 If an agree-to value is not reached by the end of the
30-day period provided in 8.7.1 above, then within 20 days after the
end of the 30-day period, the Selling Partner and the Remaining
Partners (as a group) either (1) shall jointly appoint an appraiser
for this purpose, or (2) failing this joint action, shall each
separately designate an appraiser and, within 5 days after their
appointment, the two designated appraisers shall jointly designate a
third appraiser. The failure of either the Selling Partner or the
Remaining Partners to appoint an appraiser within the time allowed
shall be deemed equivalent to appointment of the
-2-
appraiser appointed by the other party or parties. No person shall be
appointed or designated an appraiser unless that person is then a
member of the American Institute of Real Estate Appraisers or the
American Society of Appraisers. The cost of any appraiser or
appraisers shall be paid one-half by the Selling Partner and one-half
by the Remaining Partners.
8.7.3 If, within 10 days after the appointment of all appraisers,
a majority of the appraisers concur on the value of the interest being
appraised, that appraisal shall by binding and conclusive (the
appraisal of a single appraiser appointed under this Agreement shall
likewise be binding and conclusive). If a majority of the appraisers
do not concur within that period, the determination of the appraiser
whose appraisal is neither highest nor lowest shall be binding and
conclusive. The Partnership and the Partner whose interest is to be
appraised, or that Partner's estate or successors, shall share the
appraisal expenses equally.
8.7.4 A Partner's interest in the Partnership so appraised or
with agree-to value shall be based on that Partner's proportional
interest in the Partnership's profits. Real Estate shall be appraised
at fair market value."
5. Section 8 (Changes In Membership), Paragraph 8.9 (Payment and Transfer
of Available Interest) is deleted in its entirety and the following inserted in
its place:
"8.9 Payment and Transfer of Available Interest.
8.9.1 General Provisions. On the occurrence of any event that
leads to the purchase of an Available Interest under this Agreement,
the consideration to be paid for the Interest or portion thereof shall
be paid to the Selling Partner, his estate, or his former spouse, as
the case may be. If the event that leads to the purchase is death of
any Partner, the Remaining Partners shall file the necessary proofs of
death and collect the proceeds of any policies of insurance covered by
this Agreement and outstanding on the life of the deceased Partner.
The decedent's personal representative shall apply for and obtain any
necessary Court approval or confirmation of the sale of the decedent's
-3-
Interest under this Agreement. Likewise, the parties will perform all
necessary acts to collect under any disability pay-out policies in the
event of a Partner's disability.
8.9.2 Payment by Remaining Partners. The remaining Partners shall
pay the purchase price, or balance of the purchase price if insurance
proceeds were first applied, in cash or, at their option, shall pay a
cash payment of at least 50% if the purchase price or balance of the
purchase price is $10,000 or less, 30% if between $10,001 and $20,000,
20% if between $20,001 and $30,000, and 10% if over $30,000, with the
remaining balance paid under a Promissory Note as more fully provided
in Section 8.10 below.
8.9.3 Prompt Payment and Transfer of Available Interest. In all
events, consideration for the Available Interest shall be delivered as
soon as practicable to the person entitled to it, and the Remaining
Partners shall cause the transfer of the Available Interest to be
reflected in the Partnership books and records."
6. Section 8 (Changes In Membership), Paragraph 8.10 (Notes and Securities)
shall have Sub-paragraph 8.10.1 (Form of Note) is deleted in its entirety and
the following inserted in its place:
"8.10.1 Form of Note. The deferred portion of the Purchase Price
for any Available Interest purchased under this Agreement shall be
represented by a Promissory Note executed by each of the purchasing
Partners. The Note shall provide for payment of principal in 2 equal
quarterly installments if the principal balance is $5,000 or less, 4
equal quarterly installments if the principal balance is between
$5,001 and $14,000, 8 equal quarterly installments if the principal
balance is between $14,001 and $24,000 and 12 equal quarterly
installments if the principal balance is over $24,000. Each
installment of principal shall have added to it accrued interest on
the unpaid balance at the maximum legal rate permitted by law but not
to exceed the rate of 12% per annum, with full privilege of prepayment
of all or any part of the principal at any time without penalty or
bonus. Any prepaid sums shall be applied against the installments
-4-
thereafter falling due in inverse order of their maturity, or against
all the remaining installments equally, at the option of the payers.
The Note shall provide that, in case of default, at the election of
the holder the entire sum of principal and interest will immediately
be due and payable, and that the makers shall pay reasonable
attorney's fees to the holder in the event suit is commenced because
of default."
IN WITNESS WHEREOF, the Partners have signed this Third Amendment effective
as of January 1, 1991.
Name and Address Capital Contribution Percentage Interest
------------------------------------------------------------------------
General Partners:
/s/ Neale A. Perkins $4,000.00 80.00000%
---------------------------
NEALE A. PERKINS
3120 E. Mission Boulevard
Ontario, CA 91761
/s/ Arlene Hamel $ 166.66 3.33333%
---------------------------
ARLENE HAMEL
3120 E. Mission Boulevard
Ontario, CA 91761
/s/ Scott T. O'Brien $ 166.67 3.33333%
---------------------------
SCOTT T. O'BRIEN
3120 E. Mission Boulevard
Ontario, CA 91761
/s/ David M. Holmes $ 166.67 3.33333%
---------------------------
DAVID M. HOLMES
27281 Las Ramblas, Ste. 155
Mission Viejo, CA 92691
SIGNATURES CONTINUED ON NEXT PAGE
-5-
Limited Partners:
/s/ Scott R. Carnahan $ 10.00 1.42857%
---------------------------
SCOTT R. CARNAHAN
---------------------------
/s/ James A. Estrada $ 10.00 1.42857%
---------------------------
JAMES A. ESTRADA
---------------------------
/s/ Donald E. Jeckell $ 10.00 1.42857%
---------------------------
DONALD E. JECKELL
---------------------------
/s/ David G. Ludt $ 10.00 1.42857%
---------------------------
DAVID G. LUDT
---------------------------
/s/ Stuart C. Moffitt $ 10.00 1.42857%
---------------------------
STUART C. MOFFITT
---------------------------
/s/ Leland F. O'Brien $ 10.00 1.42857%
---------------------------
LELAND F. O'BRIEN
---------------------------
/s/ Gary Ragusa $ 10.00 1.42857%
---------------------------
GARY RAGUSA
---------------------------
Initial Limited Partner:
/s/ Neale A. Perkins
---------------------------
NEALE A. PERKINS
3120 E. Mission Boulevard
Ontario, CA 91761
-6-
FOURTH AMENDMENT TO
LIMITED PARTNERSHIP AGREEMENT
OF NAP PROPERTIES, LTD.,
a California limited partnership
(Effective August 20, 1996)
THIS FOURTH AMENDMENT TO LIMITED PARTNERSHIP AGREEMENT ("Fourth Amendment")
to that certain Limited Partnership Agreement of NAP Properties, Ltd., a
California limited partnership, dated August 11,1989 ("Agreement") as authorized
in Paragraph 14.1 of the Agreement, is made by and between Neale A. Perkins,
Scott T. O'Brien and David M. Holmes, collectively, the "General Partner" or
"General Partners."
The following is to correct an oversight in not previously amendment the
Agreement to reflect the following changes in ownership:
1. Effective January 1, 1994, Donald E. Jeckell's and James A. Estrada's
respective limited partnership interests in the Partnership terminated.
2. Effective January 1, 1996, Arlene Hamel withdrew as a General Partner of
the Partnership and her general partnership interest in the Partnership
terminated and Stuart C. Moffitt's limited partnership interest in the
Partnership terminated.
IN WITNESS WHEREOF, the General Partners have signed this Fourth Amendment
effective August 20, 1996.
/s/ Neale A. Perkins
----------------------------------------
Neale A. Perkins
/s/ Scott T. O'Brien
----------------------------------------
Scott T. O'Brien
/s/ David M. Holmes
----------------------------------------
David M. Holmes
FIFTH AMENDMENT TO
LIMITED PARTNERSHIP AGREEMENT
OF NAP PROPERTIES, LTD.,
a California limited partnership
(Effective October 9, 1996)
THIS FIFTH AMENDMENT TO LIMITED PARTNERSHIP AGREEMENT ("Fifth Amendment")
to that certain Limited Partnership Agreement of NAP Properties, Ltd., a
California limited partnership, dated August 11,1989 ("Agreement") as authorized
in Paragraph 14.1 of the Agreement, is made by and between Neale A. Perkins,
Scott T. O'Brien and David M. Holmes, the General Partners of NAP Property
Managers, a California general partnership, the General Partner of this Limited
Partnership.
This Agreement is amended to reflect that the General Partner is NAP
Property Managers, LLC, a California limited liability company.
IN WITNESS WHEREOF, the General Partners have signed this Fifth Amendment
effective October 9, 1996.
"General Partner"
/s/ Neale A. Perkins
----------------------------------------
Neale A. Perkins
/s/ Scott T. O'Brien
----------------------------------------
Scott T. O'Brien
/s/ David M. Holmes
----------------------------------------
David M. Holmes
SIXTH AMENDMENT TO
LIMITED PARTNERSHIP AGREEMENT
OF NAP PROPERTIES, LTD.,
a California limited partnership
(Effective May 6, 1999)
THIS SIXTH AMENDMENT TO LIMITED PARTNERSHIP AGREEMENT ("Sixth Amendment")
to that certain Limited Partnership Agreement of NAP Properties, Ltd., a
California limited partnership, dated August 11,1989 ("Agreement") as authorized
in Paragraph 14.1 of the Agreement, is made by and between Neale A. Perkins,
Scott T. O'Brien and David M. Holmes, the General Partners of NAP Property
Managers, LLC, a California limited liability company, the General Partner of
this Limited Partnership.
This Agreement is amended to reflect that the sole Limited Partner of this
Partnership is the Neale A. Perkins Trust, Established March 13,1990, having
acquired the following limited partnership interests this date: SCOTT R.
CARNAHAN, 2.0%; DAVID G. LUDT, 2.0%; LELAND F. O'BRIEN, 2.0%; and GARY
RAGUSA,2.0%.
IN WITNESS WHEREOF, the General Partners have signed this Sixth Amendment
effective May 6, 1999.
"General Partner"
NAP PROPERTY MANAGERS, LLC,
a California limited liability company
By: /s/ Neale A. Perkins
----------------------------------------
Neale A. Perkins, Trustee of the
Neale A. Perkins Trust UTD 3/13/90,
Member
/s/ Patricia A. Perkins
----------------------------------------
Patricia A. Perkins, Member
SEVENTH AMENDMENT TO
LIMITED PARTNERSHIP AGREEMENT OF
NAP PROPERTIES, LTD.,
a California Limited Partnership
(Effective as of May 20, 2000)
THIS SEVENTH AMENDMENT TO LIMITED PARTNERSHIP AGREEMENT ("Seventh
Amendment") to the certain Limited Partnership Agreement of NAP Properties,
Ltd., a California limited partnership (the "Limited Partnership"), dated August
11, 1989 (the "Agreement") as authorized in Paragraph 14.1 of the Agreement, is
made by ARMOR HOLDINGS PROPERTIES, INC., a Delaware corporation and the sole
Managing Member of NAP PROPERTY MANAGERS, LLC, the sole General Partner of this
Limited Partnership.
This Agreement is amended and restated to reflect that the sole
partners of the Limited Partnership are as follows:
a) Armor Holdings Properties, Inc., as Limited Partner, having
acquired the 8% partnership interest of the Neale A. Perkins
Trust, Established March 13, 1990;and
b) NAP PROPERTY MANAGERS, LLC, as General Partner, having a 92%
partnership interest.
NAP PROPERTY MANAGERS, LLC,
General Partner
By: ARMOR HOLDINGS PROPERTIES,
INC., Managing Member
By: /s/ Robert R. Schiller
------------------------------------
Name: Robert R. Schiller
Title: Vice President
Dates Referenced Herein and Documents Incorporated by Reference
| Referenced-On Page |
|---|
| This ‘S-4’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| | 12/31/15 | | 13 | | | | | None on these Dates |
| Filed on: | | 1/7/04 |
| | 5/20/00 | | 67 |
| | 5/6/99 | | 66 |
| | 10/9/96 | | 65 |
| | 8/20/96 | | 64 |
| | 1/1/96 | | 64 |
| | 1/1/94 | | 64 |
| List all Filings |
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Filing Submission 0000950136-04-000026 – Alternative Formats (Word / Rich Text, HTML, Plain Text, et al.)
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