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General Partnership Agreement

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Sectors: Retail
Governing Law: Nevada, View Nevada State Laws
Effective Date: July 01, 1997
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GENERAL PARTNERSHIP AGREEMENT


OF


DAP/LUBECO PARTNERSHIP


PATRICIA L. BROWN & ASSOCIATES
A PROFESSIONAL LAW CORPORATION


2


TABLE OF CONTENTS


ARTICLE 1. FORMATION OF PARTNERSHIP............................................................... 1
1.1 Execution and Filing of Agreement.................................................... 1
1.2 Full Compliance...................................................................... 1


ARTICLE 2.-- NAME OF PARTNERSHIP................................................................... 2


ARTICLE 3.-- BUSINESS OF THE PARTNERSHIP........................................................... 2


ARTICLE 4.-- NAMES AND ADDRESS OF PARTNERS......................................................... 2


ARTICLE 5.-- PARTNERSHIP UNITS AND PERCENTAGES..................................................... 2


ARTICLE 6.-- TERM.................................................................................. 3


ARTICLE 7.-- BUSINESS OFFICES...................................................................... 3


ARTICLE 8.-- CAPITAL AND CONTRIBUTIONS............................................................. 3
8.1 Initial Capital Contributions........................................................ 3
8.2 Capital Calls........................................................................ 3
8.3 Non-Contribution by Partners......................................................... 3
8.4 Interest on Capital Contributions.................................................... 3
8.5 Withdrawal and Return of Capital Contributions....................................... 4


ARTICLE 9. DISTRIBUTIONS.......................................................................... 4
9.1 Distributions as Between Partners.................................................... 4
9.2 Timing of Distributions and Discretion of Partners as to Reinvestment................ 4
9.3 Distributions of Capital............................................................. 4


ARTICLE 10. ALLOCATION OF PROFITS AND LOSSES FOR TAX PURPOSES..................................... 4
10.1 General Allocation of Profits and Losses............................................. 4
10.2 Regulator Allocations................................................................ 5
(b) Allocation in the Event of Section 754 Election............................. 5
10.3 Curative Allocations................................................................. 5
10.4 Special Tax Allocations.............................................................. 6
(a) Contributed Property........................................................ 6
(b) Adjusted Property........................................................... 6
(c) Recapture of Deductions and Credits......................................... 6
(d) Binding Nature of Elections Made............................................ 6
10.5 Allocation in the Event of Transfer.................................................. 6


ARTICLE 11. BOOKS OF ACCOUNT, RECORDS AND REPORTS................................................. 7
11.1 Responsibility for Books and Records................................................. 7
11.2 Reports to Partners.................................................................. 7
11.3 Additional Reports................................................................... 7


PATRICIA L. BROWN & ASSOCIATES
A PROFESSIONAL LAW CORPORATION


3


GENERAL PARTNERSHIP AGREEMENT


Page ii


ARTICLE 12. FISCAL YEAR........................................................................... 8


ARTICLE 13. PARTNERSHIP FUNDS..................................................................... 8


ARTICLE 14. TRANSFERS OF INTERESTS................................................................ 8


ARTICLE 15. JOINT AGREEMENT....................................................................... 8


ARTICLE 16. DEFINITIONS........................................................................... 8
16.1 Act.................................................................................. 8
16.2 Agreed Value......................................................................... 8
16.3 Agreement............................................................................ 9
16.4 Bankruptcy........................................................................... 9
16.5 Capital Account...................................................................... 10
16.6 Capital Contribution................................................................. 11
16.7 Code................................................................................. 11
16.8 Incapacity........................................................................... 11
16.9 Interest............................................................................. 11
16.10 General Partner or Partner........................................................... 11
16.11 Majority of Partners................................................................. 11
16.12 Net Cash Flow........................................................................ 11
16.13 Partnership Percentages, Partnership Interests and Partnership Units................. 12
16.14 Tax Matters Partner.................................................................. 12
16.15 Taxable Income and Tax Losses........................................................ 12


ARTICLE 17. RELIANCE BY THIRD PARTIES............................................................. 12

ARTICLE 18. TITLE TO PARTNERSHIP ASSETS........................................................... 13

ARTICLE 19. DISSOLUTION OF THE PARTNERSHIP........................................................ 13

ARTICLE 20. WINDING UP, TERMINATION,
AND LIQUIDATING DISTRIBUTIONS.............................................. 13
20.1 Winding Up........................................................................... 13
20.2 Distributions........................................................................ 14
20.3 Deficit Account Restoration.......................................................... 14
20.4 Final Reports........................................................................ 15

ARTICLE 21. WAIVER OF PARTITION................................................................... 15

ARTICLE 22. NOTICES............................................................................... 15

ARTICLE 23. GOVERNING LAWS........................................................................ 15

ARTICLE 24. EFFECT................................................................................ 15

ARTICLE 25. PRONOUNS AND NUMBER................................................................... 15

ARTICLE 28. COUNTERPARTS........................................................................... 16


PATRICIA L. BROWN & ASSOCIATES
A PROFESSIONAL LAW CORPORATION


4


GENERAL PARTNERSHIP AGREEMENT
OF
DAP/LUBECO PARTNERSHIP


This General Partnership Agreement (the "Agreement") is made and entered into as of the 1st day of March, 1997, by and between DAP/LUBECO CORP., a Nevada corporation, and LUBECO MANAGEMENT, INC., a Delaware corporation, (sometimes individually referred to herein as a "Partner" or collectively as the "Partners").


W I T N S S E T H:


WHEREAS, DAP/LUBECO CORP. is a wholly-owned subsidiary of Discount Auto Parts, Inc., a Florida corporation ("DAP"); and


WHEREAS, LUBECO MANAGEMENT, INC. is a wholly-owned subsidiary of QLube, Inc., a Delaware corporation ("QLUBE") ; and


WHEREAS, DAP and QLUBE have entered into that certain Master Joint Business Agreement dated as of the 1st day of January, 1997 (the "Joint Agreement"), a copy of which is attached hereto as Schedule "A" and made a part hereof; and


WHEREAS, paragraph 3 of the Joint Agreement contemplates the formation of an entity to own and operate the business described in the Joint Agreement; and


WHEREAS, DAP and QLUBE have determined that a Nevada general partnership is an appropriate form of entity to conduct such business pursuant to the terms and conditions of the Joint Agreement and would like to own and control their interests in the partnership through the Partners.


NOW, THEREFORE, in consideration of the foregoing premises and mutual covenants contained in this Agreement, the parties agree as follows:


ARTICLE 1. FORMATION OF PARTNERSHIP


The Partners hereby form a Partnership (the "Partnership") pursuant to the Hawaii Uniform Partnership Act (the "Act") as adopted under Nevada Revised Statutes Chapter 87. The rights and duties of the Partners shall be as provided in the Act except as modified by this Agreement.


1.1 EXECUTION AND FILING OF AGREEMENT:


The parties hereto shall execute promptly all certificates and
other documents which are needed to accomplish all filing,
recording, publishing and other acts appropriate to comply
with all requirements for the formation and operation of a
general partnership under the laws of the State of Hawaii and
for the formation, qualification and operation of a general
partnership in all other jurisdictions where the Partnership
shall propose to conduct business.


PATRICIA L. BROWN & ASSOCIATES
A PROFESSIONAL LAW CORPORATION


5


GENERAL PARTNERSHIP AGREEMENT
Page 2


1.2 FULL COMPLIANCE:


Prior to or concurrently with the conducting of any business
in any jurisdiction, the Partnership shall comply, to the full
extent permitted by the laws of such jurisdiction, with all
requirements for the qualification or formation of the
Partnership to conduct business as a general partnership in
such jurisdiction.


ARTICLE 2. -- NAME OF PARTNERSHIP


The business of the Partnership shall be conducted under the name "DAP/LUBECO Partnership" or such other name as the Partners shall hereafter determine. Subject to all applicable laws, the business of the Partnership may be conducted under any other name or names as a majority in interest of the Partners deem appropriate to comply with the laws of the jurisdictions in which the Partnership does business.


ARTICLE 3. -- BUSINESS OF THE PARTNERSHIP


The purpose and business of the Partnership shall be to engage in any business which may lawfully be conducted by the Partnership under Hawaii Revised Statutes, including the business of operation of real property investment, management and leasing. The Partnership's business may include, without limitation, the acquisition, development, management, operation and disposition of real, personal and intangible property, the carrying on of any business or activities relating thereto or arising therefrom, the entering into of any partnership, joint venture or other similar arrangement to engage in any of the foregoing or the ownership of interests in any entity engaged in any of the foregoing, and anything incidental or necessary to the foregoing.


ARTICLE 4. -- NAMES AND ADDRESS OF PARTNERS


The names and addresses of the General Partners are:


DAP/LUBECO CORP.
4900 Frontage Road S.
Lakeland, Florida 33815
Attention: C. Michael Moore


LUBECO MANAGEMENT, INC.
1385 West 2200 South
Salt Lake City, Utah 84119
Attention: Kirk Umphrey


ARTICLE 5. -- PARTNERSHIP UNITS AND PERCENTAGES


The Initial Partnership Percentages of the Partners and Units to be owned by each such Partner shall be as detailed on the Schedule A attached hereto and incorporated herein by this reference.


PATRICIA L. BROWN & ASSOCIATES
A PROFESSIONAL LAW CORPORATION


6


GENERAL PARTNERSHIP AGREEMENT


Page 3


ARTICLE 6. -- TERM


The term of the Partnership began as the effective date of this Agreement and shall continue until the earliest of:


(i) the termination of the Joint Agreement;


(ii) Twenty (20) years; or


(iii) an act or event of dissolution otherwise specified in this
Agreement or the Joint Agreement or by the law as one
effecting dissolution.


ARTICLE 7. -- BUSINESS OFFICES


The principal place of business of the Partnership shall be at 4900 Frontage Road S., Lakeland, Florida 33815 or at such other location as a majority in interest of the Partners may from time to time determine.


ARTICLE 8. -- CAPITAL AND CONTRIBUTIONS


8.1 INITIAL CAPITAL CONTRIBUTIONS:


The Partners initially shall make Capital Contributions in
property totalling One Hundred Thousand and NO/100 Dollars
($100,000.00) and among them in accordance with Partnership
Unit Percentages in the amounts detailed on the attached
Schedule "B". The Partners' initial Capital Contributions
shall be made as soon as practicable after execution of this
Agreement.


8.2 CAPITAL CALLS:


In addition to the Capital Contributions required by Paragraph
8.1, any additional capital contributions shall be made, if at
all, in accordance with the provisions of subparagraph b of
paragraph 4 the Joint Agreement.


8.3 NON-CONTRIBUTION BY PARTNERS:


If any Partner fails to pay all or any portion of an
additional assessment called pursuant to Paragraph 8.2 (an
"Assessment Payment") in a timely manner, then, in that event,
the contributing Partner may make an additional contribution
to cover the amount needed and the non-contributing Partners
shall be liable to the Partnership as provided for in
subparagraph b of paragraph 4 of the Joint Agreement.


8.4 INTEREST ON CAPITAL CONTRIBUTIONS:


No Partner shall be entitled to interest on any Capital
Contribution, except as otherwise may be provided for in the
Joint Agreement.


PATRICIA L. BROWN & ASSOCIATES
A PROFESSIONAL LAW CORPORATION


7


GENERAL PARTNERSHIP AGREEMENT


Page 4


8.5 WITHDRAWAL AND RETURN OF CAPITAL CONTRIBUTIONS:


No Partner shall be entitled to withdraw any part of such
Partner's Capital Contribution, or to receive any
distributions from the Partnership except as provided by the
Joint Agreement.


ARTICLE 9. DISTRIBUTIONS


9.1 DISTRIBUTIONS AS BETWEEN PARTNERS:


Except as may otherwise be provided in the Joint Agreement,
the Partnership may distribute all or a portion of the Net
Cash Flow among the Partners in accordance with their
respective Partnership Percentages.


9.2 TIMING OF DISTRIBUTIONS AND DISCRETION OF PARTNERS AS TO
REINVESTMENT:


Partnership distributions, if any, will be made to those
persons recognized on the books of the Partnership as Partners
or as assignees of Interests on the day of the distribution.
To the extent permitted by law and as permitted by any loan
agreements entered into by the Partnership, the Partnership's
Net Cash Flow may in whole or in part be reinvested in the
Partnership's business or distributed to the Partners, as
determined by a majority in interest of the Partners.


9.3 DISTRIBUTIONS OF CAPITAL:


Except as may otherwise be provided for in the Joint
Agreement, the Partners may from time to time, by majority
vote, cause the Partnership to distribute cash and/or other
property to the Partners as a return of capital. Distributions
made pursuant to this Paragraph 9.3 need not be made in
accordance with the Partner's units or capital accounts.
Rather, distributions pursuant to this Paragraph 9.3 can be
made to any Partner, as long as that distribution is
designated as a "return of capital;" provided, however, that
distributions under this Paragraph 9.3 may only be made to a
Partner to the extent of the positive balance in that
Partner's capital account and provided, further, that no
distribution under this Paragraph 9.3 may be made that is not
pro rata to all partners without the express written consent
of a majority of the Partners.


ARTICLE 10. ALLOCATION OF PROFITS AND LOSSES FOR TAX PURPOSES


10.1 GENERAL ALLOCATION OF PROFITS AND LOSSES:


Except as otherwise provided in this Agreement or the Joint
Agreement, the profits and losses of the Partnership arising
during any taxable year of the Partnership shall be allocated
among the Partners in accordance with their respective
Partnership Percentages; provided, however, that in accordance
with Section 704(c) of the Code and the Treasury Regulations
thereunder, income, gain, loss, and deduction with respect to
any property contributed to the capital of the Partnership
shall, solely for tax purposes, be allocated among the
Partners so as to take account of any variation between the
adjusted basis of


PATRICIA L. BROWN & ASSOCIATES
A PROFESSIONAL LAW CORPORATION


8


GENERAL PARTNERSHIP AGREEMENT


Page 5


such property to the Partnership for federal income tax
purposes and its agreed upon fair market value at the time of
contribution.


10.2 REGULATOR ALLOCATIONS:


(a) MINIMUM GAIN CHARGEBACK:


Notwithstanding any other provision of this Paragraph
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