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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D/A
Under the Securities Act of 1934
AMENDMENT NO. 1
MasTec, Inc.
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(Name of Issuer)
Common Stock
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(Title of Class of Securities)
576323109
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(CUSIP Number)
Darryl B. Deaktor, White & Case, 200 S. Biscayne Blvd., Suite 4900, Miami,
FL 33131 (305) 371-2700
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(Name, Address and Telephone Number of Person Authorized to Receive Notices
and Communications)
December 30, 1994
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box __.
Check the following box if a fee is being paid with the statement __ .
Page 1 of 5
SCHEDULE 13D
CUSIP No. 576323109 Page _________ of_______ Pages
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1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Jorge L. Mas
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) ___
(b) _x_
3 SEC USE ONLY
4 SOURCE OF FUNDS*
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) ___
6 CITIZENSHIP OR PLACE OF ORGANIZATION
U.S.A.
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7 SOLE VOTING POWER
5,280,000
8 SHARED VOTING POWER SHARES
100,000
9 SOLE DISPOSITIVE POWER
5,280,000
10 SHARED DISPOSITIVE POWER
100,000
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
5,380,000
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* ___
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
33.9%
14 TYPE OF REPORTING PERSON*
IN
Page 2 of 5
Item 3. Source and Amount of Funds or Other Consideration.
Jorge L. Mas acquired 5,330,000 of the securities reported in
this Schedule (the "Acquisition") in exchange for 100 shares of the common
stock of Church & Tower of Florida, Inc., a Florida corporation ("CTF"),
pursuant to an Agreement dated as of October 15, 1993, as amended, between
the Issuer and Jorge L. Mas, Jorge Mas, Juan Carlos Mas and Jose Ramon Mas
(the "Mas Family").
50,000 of the securities reported in this Schedule were not
acquired by Jorge L. Mas pursuant to the Acquisition and are owned by the
Mas Family Foundation, Inc., of which Jorge L. Mas is a member and
director. Item 5 of this Schedule is incorporated herein by reference.
Item 5. Interest in Securities of the Issuer.
(a) Jorge L. Mas is the beneficial owner of 5,380,000 shares of the
Issuer's common stock (the "Shares") representing 33.9% of the
Issuer's outstanding common stock. 5,280,000 of the Shares are
held by Jorge L. Mas Canosa Holdings I Limited Partnership, which
is controlled by Jorge L. Mas, and 100,000 of the Shares are held
by the Mas Family Foundation, Inc., which is controlled by Jorge
L. Mas and the other members of the Mas Family.
(b) (i) Jorge L. Mas Canosa Holdings I Limited Partnership, a Texas
limited partnership (the "Partnership"), owns and has the
power to vote and dispose of 5,280,000 of the Shares. The
principal business of the Partnership is to hold such
Shares. The address of the Partnership's principal office
and principal place of business is 2716 East Fifth Street,
Austin, TX 78702.
(ii) The Mas Family Foundation, Inc., a Florida not for profit
corporation (the "Foundation"), was organized exclusively
for charitable and educational purposes. The Foundation
owns and has the power to vote and dispose of 100,000 of the
Shares.
The address of the Foundation's principal office and
principal business is 8600 N.W. 36 Street, Miami, FL 33166.
(c) On December 30, 1994, Jorge L. Mas transferred 52,800 of the
Shares to Jorge L. Mas Canosa Holdings Corporation, a Texas
corporation which is wholly-owned by Jorge L. Mas; on the same
day, Jorge L. Mas and Jorge L. Mas Canosa Holdings Corporation
transferred 5,227,200 and 52,800 of the Shares, respectively, to
the Partnership in exchange for a 99% and 1% equity therein,
respectively (the "Partnership Transfer"), pursuant to that
certain Limited Partnership Agreement dated December 30, 1994.
Jorge L. Mas is the sole limited partner and Jorge L. Mas Canosa
Holdings Corporation is the sole general partner, of the
Partnership.
On December 30, 1994, each of Jorge L. Mas and Jorge Mas donated
50,000 of the Shares to the Foundation (the "Donation"). The
members of the Mas Family are the sole directors and members of
the Foundation.
Page 3 of 5
Jorge L. Mas engaged in the Partnership Transfer and the Donation
for tax and estate planning purposes.
(d) None
(e) Not applicable
Item 6. Contracts, Arrangements, Understandings or Relationships with
respect to Securities of the Issuer.
Item 5(c) of this Schedule is incorporated herein by reference.
Item 7. Exhibits.
(i) The Limited Partnership Agreement of the Jorge L. Mas Canosa
Holdings I Limited Partnership dated December 30, 1994.
Page 4 of 5
Signature
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete
and correct.
Date: January 9, 1995 /s/ Jorge L. Mas
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Jorge L. Mas
Page 5 of 5
LIMITED PARTNERSHIP AGREEMENT
OF
Jorge L. Mas Canosa Holdings I Limited Partnership
THIS AGREEMENT of Limited Partnership is made and entered into as
of December 30, 1994, by and between Jorge L. Mas Canosa Holdings
Corporation, a Texas corporation (the "General Partner") and Jorge L. Mas
Canosa (the "Limited Partner"), all of whom do hereby agree to the
following terms and conditions:
Section 1. Definitions. As used in this Agreement, the
following terms have the definitions as hereinafter indicated (unless
otherwise specifically indicated):
"Affiliate" means any Person that directly or indirectly
controls, is controlled by, or is under common control with a Partner, and
any spouse or child of any Partner.
"Agreement" means this Limited Partnership Agreement, as it may
be amended or modified from time to time in accordance with Section 18.
"Capital Account" means an amount computed as provided in
Section 5.5.
"Capital Contribution" means, with respect to any Partner, the
aggregate amount contributed by such Partner to the capital of the
Partnership.
"Code" means the Internal Revenue Code of 1986, as amended.
"General Partner" means any Person admitted pursuant to this
Agreement as a general partner to the Partnership and their successors.
"Income" means gross income of the Partnership for any year
determined on the basis utilized in preparing the Partnership's federal
income tax information return including gains realized on the sale,
exchange or other disposition of the Partnership's assets.
"Interest" or "Partnership Interest" means the ownership interest
of a Partner in Partnership capital and the Partnership generally as set
forth in Section 5.3, including the right of a Partner to any and all
benefits to which the Partner may be entitled as provided in this Agreement
and in the Partnership Act, together with the obligations of the Partner to
comply with all the terms and provisions of this Agreement and of the
Partnership Act.
"IRS" means the Internal Revenue Service.
"Limited Partner" means any Person admitted pursuant to this
Agreement as a limited partner to the Partnership.
Page 1 of 19
"Loss" means the aggregate of losses and tax deductions of the
Partnership for any year, determined on the basis utilized in preparing the
Partnership's federal income tax information return including losses
incurred on the sale, exchange or other disposition of the Partnership's
assets.
"Net Cash Flow" means gross cash receipts of the Partnership,
which includes, but is not limited to, the proceeds of loans to the
Partnership, amounts received from the Partners as capital contributions
and receipts from the sale, exchange or other disposition of all or any
Partnership property, less (i) all operating expenses of the Partnership
other than any expense not involving a cash expenditure (such as any amount
charged for amortization or depreciation); (ii) all principal payments on
account of any loans made to, and obligations of, the Partnership; (iii)
any sum expended by the Partnership for capital expenditures; and (iv) cash
reserves for working capital or other purposes, the aggregate amount of
which shall be determined by the General Partner in its sole discretion.
"Partner" means the General Partner or Limited Partner.
"Partnership" means the limited partnership entered into by the
parties to this Agreement pursuant to the Partnership Act.
"Partnership Act" means the Texas limited partnership laws, as
amended.
"Person" means any individual, partnership, corporation, trust,
association or other entity.
"Regulations" means the Treasury Regulations promulgated pursuant
to the Code, as amended.
"State" means the State of Texas.
"Substituted Limited Partner" means any person admitted to the
Partnership as a limited partner pursuant to Section 13.5.
Section 2. Organization of Partnership.
2.1 Formation. The Partnership is hereby formed by the Limited
Partner and the General Partner under the provisions of the Partnership
Act. The rights and liabilities of the Partners shall be as provided in
the Partnership Act except as herein otherwise expressly provided.
2.2 Name; Filing. The Partnership shall be called Jorge L. Mas
Canosa Holdings I Limited Partnership. All business of the Partnership
shall be conducted under such name or such other name as the General
Partner deems necessary or appropriate to comply with the requirements of
law in any jurisdiction in which the Partnership may elect to do business.
The Partners shall promptly execute and the General Partners shall file and
record with the proper offices in each jurisdiction and political
subdivision in which the Partnership does business, any certificate
required by any limited partnership act, fictitious name act or similar
statute.
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2.3 Principal Office. The principal office of the Partnership
shall be 2716 East 5th Street, Austin, Texas 78702 Attn: Jorge L. Mas
Canosa. The Partnership may change the location of its principal office to
such other place or places as may be determined from time to time by the
General Partner. The General Partner shall promptly notify the Limited
Partners of any change in the Partnership's principal office. The
Partnership may maintain other offices at other places if the General
Partner deems it advisable.
Section 3. Purpose of the Partnership and Investment Objectives.
The purpose of the Partnership is to acquire and manage investments and to
engage in such other activities and business as may be necessary or
convenient to promote or carry out such purpose.
Section 4. Term. The term of the Partnership shall continue
until December 31, 2044, unless sooner terminated because of the
dissolution or winding-up of the Partnership in accordance with this
Agreement or by operation of law or judicial decree.
Section 5. Capital Contributions and Capital Accounts.
5.1 General Partner's Capital Contributions. The General
Partner shall contribute 52,800 shares of common stock of MasTec, Inc., a
Delaware corporation, to the capital of the Partnership. Except as
otherwise provided in Section 5.6(b) or Section 5.6(c), the General Partner
shall not be obligated to make advances or loan monies to the Partnership,
except to the extent that the General Partner shall be required by the
Partnership Act to pay any Partnership liability upon which it shall be
obligated in its capacity as a general partner of the Partnership. The
General Partner shall not be liable to any Limited Partner for repayment of
the Limited Partner's Capital Contribution.
5.2 Limited Partners' Capital Contributions. The Limited
Partner shall contribute 5,227,200 shares of common stock of MasTec, Inc.,
a Delaware corporation, to the capital of the Partnership.
5.3 Percentage Ownership Interest. The Partners shall have the
following percentage ownership interest in the Partnership:
Name Percentage
____ __________
Jorge L. Mas Canosa
Holdings Corporation 1%
Jorge L. Mas Canosa 99%
Notwithstanding any provision of this Agreement to the contrary,
in no event shall the Interest (including any Interest as a Limited
Partner) of the General Partner in each material item of Partnership Income
or Loss be less than one percent of each such item at all times during the
existence of the Partnership.
5.4 Return of Capital Contribution. No Partner shall have any
right to withdraw or make a demand for withdrawal of the balance reflected
in his Capital Account (as determined under Section 5.5) until the full and
complete winding up and liquidation of the business of the Partnership.
Page 3 of 19
5.5 Capital Accounts.
(a) An individual Capital Account shall be maintained for
each Partner in accordance with Section 704(b) of the Regulations. The
Capital Account of each Partner will reflect the amount of such Partner's
initial contribution to the capital of the Partnership.
(b) Each Partner's Capital Account shall be increased by:
(i) Any additional Capital Contributions to the
capital of the Partnership,
(ii) His share of Income allocated to him under
Section 7 and his share of the gain on the sale or other disposition
of Partnership assets allocated to him under Sections 7 and 15, and
(iii) His share of Partnership income or profits, if
any, not otherwise taken into account in this Section 5.5(b).
(c) Each Partner's Capital Account shall be decreased by:
(i) Any distributions made to him pursuant to Sections
6 and 15.3(d);
(ii) His share of Loss allocated to him under
Sections 7 and his share of the loss on the sale or other disposition
of Partnership assets allocated to him under Sections 7 and 15;
(iii) His share of Partnership expenses or losses, if
any, not otherwise taken into account in this Section 5.5(c).
5.6 Additional Funds.
(a) In the event a Limited Partner or General Partner loans
funds to the Partnership, such loan shall bear interest at a daily
fluctuating interest rate per annum equal to two percentage points over the
prime rate in effect for Citibank, N.A. on the first day of each month.
(b) Except as otherwise provided in this Section 5.6(b),
the General Partner shall make such additional Capital Contributions to the
Partnership as are necessary to cause the Capital Account balance of the
General Partner to equal the lesser of: (i) one percent of the total
positive Capital Account balances of the Partners, or (ii) $500,000.
Notwithstanding the foregoing, if no Limited Partner has a positive Capital
Account balance, the Capital Account balance of the General Partner need
not have a positive balance.
(c) In the event a Limited Partner makes an additional
Capital Contribution to the Partnership, the General Partner shall make an
additional Capital Contribution in the amount necessary to cause the
aggregate additional General Partner Capital Contribution under this
Section 5.6(c) to equal the lesser of: (i) one percent of the aggregate
additional Limited Partner Capital Contribution, or (ii) the amount
necessary, if any, to cause the Capital Account of the General Partner to
satisfy the requirements of Section 5.6(b).
Page 4 of 19
Section 6. Distribution of Net Cash Flow. Net Cash Flow on hand
at the end of any fiscal year shall, except as otherwise provided in
Section 15.3(d), be distributed within 90 days after the end of such fiscal
year to the Partners, prorata in accordance with their respective
Percentage Interests.
Section 7. Allocation of Income and Loss and of Gain and Loss on
Disposition of Partnership Assets.
7.1 Allocation of Income and Loss. Subject to Section 7.2,
Income and Loss shall be allocated among the Partners at the end of each
Fiscal Year prorata in accordance with their respective Percentage
Interests.
(a)Special Allocations.
(b) Partnership Loss allocated to any Partner pursuant to
Section 7.1 shall not exceed the maximum amount of Loss that can be so
allocated without causing the Capital Account of such Partner to have a
deficit Capital Account balance (determined with the reductions specified
in Regulation Section 1.704-1(b)(2)(ii)(d)(4),(5) and (6) which exceeds the
sum of (i) the amount of such deficit the Partner is obligated to restore,
and (ii) the amount of such deficit the Partner is deemed to be obligated
to restore pursuant to the penultimate sentence of Regulation Sections
1.704-2(g)(1) and 1.704-2(i)(5).
(c) Notwithstanding any other provision of this Agreement,
except Section 7.2(c) hereof, in the event any Partner unexpectedly
receives an adjustment, allocation or distribution described in Regulation
Section 1.704-1(b)(2)(ii)(d)(4), (5) or (6) of the Regulations which
results in such Partner having a deficit Capital Account balance (after
giving effect to Regulation Section 1.704-1(b)(2)(ii)(d)(4), (5) and (6))
or otherwise has a deficit Capital Account balance which exceeds the sum of
(i) the amount of such deficit the Partner is obligated to restore, and
(ii) the amount of such deficit the Partner is deemed to be obligated to
restore pursuant to the penultimate sentence of Regulation Sections
1.704-2(g)(1) and 1.704-2(i)(5), such Partner shall be specially allocated
items of Partnership Income in an amount and manner sufficient to
eliminate, to the extent required by the Regulations, the deficit in such
Partner's Capital Account as quickly as possible. Any special allocation
made under Section 7.2(a) shall be taken into account for purposes of
determining subsequent allocations of Income and Loss, so that the total
allocations will, to the extent possible, equal the allocations that would
have been made if this Section 7.2(b) had not previously applied.
(d) Notwithstanding any other provision of this Agreement,
if there is a net decrease in the Partnership's minimum gain (as such term
is defined in Regulation Section 1.704-2(d)) during any fiscal year, each
Partner shall be specially allocated items of Partnership Income for such
year (and subsequent years if necessary) in an amount and in the manner set
forth in Regulation Section 1.704-2(g)(2) and otherwise in accordance with
Regulation Section 1.704-2(f). This Section 7.2(c) is intended to comply
with the minimum gain chargeback requirements of Regulation Section 1.704-
2(f) and shall be interpreted consistently therewith. Any special allocations
made under this Section 7.2(c) shall be taken into account for purposes of
determining subsequent allocations of Income and Loss so that the total
allocations will, to the extent possible, equal the allocations that would have
been made if this Section 7.2(c) had not previously applied.
Page 5 of 19
(e) Any item of Partner Nonrecourse Deduction (as
hereinafter defined) with respect to a Partner Nonrecourse Debt (as
hereinafter defined) shall be allocated to the Partner who bears the
economic risk of loss of the Partner Nonrecourse Debt in accordance with
Regulation Section 1.704-2(i). The term "Partner Nonrecourse Deduction"
has the meaning provided in Regulation Section 1.704-2(i)(2). The term
"Partner Nonrecourse Debt" has the meaning provided in Regulation Section
1.704-2(b)(4). Subject to Section 7.2(c) hereof, but notwithstanding any
other provision of this Agreement, in the event that there is a net
decrease in minimum gain attributable to partner nonrecourse debt
(hereinafter referred to as "Partner Nonrecourse Minimum Gain") during any
Fiscal Year of the Partnership, then, each Partner with a share of Partner
Nonrecourse Minimum Gain at the beginning of such year shall be allocated
items of Partnership Income for such year (and subsequent years if
necessary) in proportion to, and to the extent of, an amount equal to such
Partner's share (determined in a manner consistent with Regulation Section
1.704-2(g)(2)) of the net decrease in Partner Nonrecourse Minimum Gain.
Any special allocations made under this Section 7.2(d) shall be taken into
account for purposes of determining subsequent allocations of Income and
Loss so that the total allocations will, to the extent possible, equal the
allocations which would have been made if this Section 7.2(d) had not
previously applied.
(f) If the fair market value of property contributed to the
Partnership differs from the Partnership's adjusted basis in the
contributed property following the transfer, the Income or Loss with
respect to the contributed property shall be allocated in accordance with
Section 704(c) of the Code.
(g) Subject to the other subsections of this Section 7.2,
if, in any Partnership fiscal period any interest income for federal income
tax purposes shall be imputed to the Partnership with respect to any note
delivered to the Partnership by a Partner in payment of a capital
contribution, then such interest income shall be allocated in its entirety
to the Partner that is the maker of such note.
7.2 Allocation with Respect to Transferred Interests. Each item
of Income or Loss allocable to a Partner's Interest that is transferred in
whole or in part during any year shall, if permitted by law, be allocated
on a daily basis according to the varying Interests of the Partners during
the year.
7.3 No Liability of General Partners for Computation or
Determination. With respect to all matters (including disputes with
respect thereto) relating to computations and determinations required to be
made under this Agreement the General Partner may rely upon, and shall have
no liability to the Limited Partners or the Partnership if it relies upon,
the opinion of independent certified public accountants retained by the
Partnership.
Section 8. Records, Books of Account and Reports.
8.1 Maintenance of Books and Records. Proper and complete
records and books of account shall be maintained by the General Partner in
which shall be entered fully and accurately all transactions and other
matters relative to the Partnership's business as are usually entered into
records and books of accounts maintained by persons engaged in business of
Page 6 of 19
like character. In addition, the General Partner shall maintain records
adequate to file the Partnership's federal income tax information return.
The books and records shall upon reasonable notice be made available during
regular business hours at the principal office of the Partnership, or such
other place or places as the General Partner approves, for the reasonable
inspection and examination by any Partner or his duly authorized
representatives. Any Partner may at any time request that a firm of
independent certified public accountants, mutually acceptable to the
Partners, audit the Partnership's books and records. The cost of such
audit shall be born by the Partner who requested such audit; provided,
however, that if the audit shall disclose any substantial discrepancy in
any of the Partnership's books and records of account, the cost of the
audit shall be paid by the Partnership.
8.2 Tax Information.
(a) The General Partner shall serve as the Partnership's
"Tax Matters Partner" within the meaning of Section 6231(a)(7) of the Code
and shall have all of the powers and duties expressly conferred upon the
Tax Matters Partner by the Code, as well as those powers and duties that
are necessary and proper for the exercise of the Tax Matters Partner's
express powers and duties under the Code.
(b) Within ninety (90) days after the end of each calendar
year, the General Partner shall send to each person who was a holder of a
Partnership Interest at any time during the calendar year then ended
(including any assignee permitted under Section 13 without regard to
whether the assignee is a Substituted Limited Partner) all Partnership tax
information maintained on a tax basis as shall be necessary for the
preparation of the holder's federal income tax return. This information
shall also include a statement showing the share of contributions,
distributions, Income, Loss and other relevant fiscal items of the
Partnership allocable to the holder's Partnership Interest for such fiscal
year. On request by a Partner, the General Partner shall furnish such
holder with copies of all federal, state and local income tax returns or
information returns, if any, which the Partnership is required to file.
Each holder shall, on his federal income tax return, treat the Partnership
item in a manner consistent with the treatment of that item on the
Partnership's information return.
8.3 Financial Statements. Within 120 days after the end of each
fiscal year, the General Partner shall send to each Partner a balance sheet
of the Partnership as of the end of the fiscal year and statements of
income, Partners' equity and changes in financial position of the
Partnership for the fiscal year.
Section 9. Fiscal Year and Accounting Method.
9.1 Fiscal Year. The fiscal year of the Partnership shall end
on the 31st day of December of each calendar year. If, however, the
General Partner determines that a change to another fiscal year would be in
the best interests of the Partnership, the General Partner may, in its sole
discretion, change the fiscal year of the Partnership to such other fiscal
year (subject to applicable rules and regulations of the United States
Department of the Treasury) as it shall select.
Page 7 of 19
9.2 Accounting Method. The Partnership books shall be kept on
the accounting method selected by the General Partner in its sole
discretion. If the General Partner determines that a change to another
accounting method would be in the best interests of the Partnership, the
General Partner may, in its sole discretion, change to such other
accounting method (subject to applicable rules and regulations of the
United States Department of the Treasury) as it shall select.
Section 10. Status and Rights of Limited Partners.
10.1 No Participation in Management; Voting Rights. No Limited
Partner shall participate in the management or control of the Partnership's
business, transact any business for the Partnership or have the power to
act for or bind the Partnership, said powers being vested solely and
exclusively in the General Partner.
10.2 Limited Liability. No Limited Partner shall be liable for
any debts or obligations of the Partnership in excess of his contribution
to the Partnership capital plus any capital returned to the Limited Partner
as to which, by the terms of the Partnership Act, the Limited Partner shall
remain liable. All undistributed cash available for distribution by the
Partnership that would otherwise be distributed to the Limited Partner,
however, shall be available to creditors to the extent provided by law to
satisfy the debts and obligations of the Partnership until the time of
actual distribution.
Section 11. Powers, Rights and Duties of the General Partner.
11.1 General Partner's Authority. The General Partner shall
have full authority to manage the operations and affairs of the Partnership
and to make all decisions regarding the business of the Partnership.
Persons dealing with the Partnership are entitled to rely conclusively on
the power and authority of the General Partner. In no event shall any
person dealing with the General Partner or its duly authorized agents with
respect to any business or property of the Partnership be obligated to
ascertain that the terms of this Agreement have been complied with, or be
obligated to inquire into the necessity or expedience of any act or action
of the General Partner or its duly authorized agents; and every contract,
agreement, deed, mortgage, promissory note or other instrument or document
executed by the General Partner or its duly authorized representative with
respect to any business or property of the Partnership shall be conclusive
evidence in favor of any and every person relying thereon or claiming
thereunder that (i) at the time of the execution and delivery thereof this
Agreement was in full force and effect, (ii) the instrument or document was
duly executed in accordance with the terms and provisions of this Agreement
and is binding upon the Partnership, and (iii) the General Partner or its
duly authorized agents were duly authorized and empowered to execute and
deliver any and every such instrument or document for and on behalf of the
Partnership.
11.2 Authority to Contract. The General Partner shall have the
right, power and authority to do on behalf of the Partnership all things
which, in such General Partner's judgment and discretion are necessary,
proper or desirable in connection with its role and function as general
partner, including but not limited to the right, power and authority, on
behalf of the Partnership, to enter into contracts and agreements under
such terms and conditions as it deems necessary, appropriate or desirable;
Page 8 of 19
to perform all the obligations of the Partnership and enforce all rights of
the Partnership under the terms and conditions of all contracts and
agreements entered into by the Partnership; to employ and dismiss from
employment any and all employees, agents, independent contractors,
appraisers, brokers, attorneys and accountants; to let or lease all or any
portion of any Partnership property for any Partnership purpose; to borrow
money on behalf of the Partnership and use as security therefor all or any
part of any Partnership property; to acquire, own, sell, lease or otherwise
dispose of Partnership property; to repay in whole or in part, refinance,
recast, modify, consolidate or extend any debt obligation affecting any
Partnership property; to procure and maintain insurance covering all
property of the Partnership and its operations; to open, maintain, close or
transfer bank accounts on behalf of and in the name of the Partnership; to
improve or alter the Partnership property; to do any and all of the
foregoing at the price, rental or amount, for cash, securities or other
property and upon such terms as the General Partner deems proper; and to
execute, acknowledge, swear and deliver any and all of the foregoing. Any
and all acts heretofore taken by the General Partner that are permitted
under this Section 11.2 are hereby ratified and confirmed by the Partners
as the acts and deeds of the Partnership.
11.3 Delegation of Authority. Subject to the provisions of
Section 11.4, the General Partner shall devote such time to the
Partnership's business as it shall deem to be necessary to manage and
supervise the Partnership's business and affairs, but nothing in this
Agreement shall preclude the employment of any agent, third party or
Affiliate to manage or provide other services in respect of the
Partnership's properties or business subject to the control and supervision
of the General Partner. The General Partner shall have responsibility for
the safekeeping and use of all funds and assets of the Partnership, whether
or not in its immediate possession or control, and shall not employ or
permit another to employ such funds or assets in any manner except for the
exclusive benefit of the Partnership.
11.4 Other Activities. This Agreement shall not preclude or
limit, in any respect, the right of the General Partner or any of its
Affiliates, to engage or invest in any business activity of any nature or
description, including those that may be the same as or similar to the
Partnership's business and that may be in direct competition with the
Partnership. Any such activity may be engaged in independently or with
other Persons, and may include, but is not to be limited to, the conduct of
the same business as that of the Partnership for the account of any one or
all of such Persons. Neither the Partnership nor any Partner shall have
any right, by virtue of this Agreement, either to participate in or to
share in such other ventures or activities, or in the income or proceeds
derived from those ventures or activities.
11.5 Limitation on Liability. Neither the General Partner nor
any Affiliate of the General Partner shall be liable, responsible or
accountable, in damages or otherwise, to the Partnership or any Limited
Partner for acts or omissions performed or omitted in good faith on behalf
of the Partnership and in a manner reasonably believed to be in the best
interests of the Partnership and within the scope of the authority
conferred on the General Partner by this Agreement or by law, unless the
act or omission was performed or omitted fraudulently or constituted gross
negligence or wilful misconduct.
Page 9 of 19
11.6 Indemnification by Partnership.
(a) The Partnership shall indemnify, hold harmless and
defend the General Partner, its affiliates, and all agents and employees of
any of the foregoing from and against any loss, expense, damage or injury
suffered or sustained by them by reason of any acts or omissions arising
out of their activities on behalf of the Partnership or in furtherance of
the interests of the Partnership, including but not limited to any
judgment, award, settlement, reasonable attorneys' fees and other costs or
expenses incurred in connection with the defense of any actual or
threatened action, proceeding or claim, if the indemnified party believed
in good faith that the acts or omissions upon which such actual or
threatened action, proceeding or claim is based were in the best interest
of the Partnership, and if the acts or omissions were not performed or
omitted fraudulently or as a result of gross negligence or wilful
misconduct by the indemnified party. For purposes of this Section 11.6,
reliance upon the advice of legal counsel, appraisers, accountants or other
professionals, shall raise a rebuttable presumption of "good faith."
Reasonable expenses incurred by the indemnified party, in connection with
the foregoing matters may be paid or reimbursed by the Partnership in
advance of the final disposition of such proceeding upon receipt by the
Partnership of (i) written affirmation by the Person requesting
indemnification of his good faith belief that he has met the standard of
conduct necessary for indemnification by the Partnership, and (ii) a
written undertaking by or on behalf of such Person to repay such amount if
it shall ultimately be determined by a court of competent jurisdiction that
such Person has not met such standard of conduct, which undertaking shall
be an unlimited general obligation of the indemnified party but need not be
secured.
(b) To the extent the General Partner, an affiliate of the
General Partner or an agent or employee of any of the foregoing has been
successful on the merits or otherwise in defense of any action, suit or
proceeding referred to in subsection (a) above, or in defense of any claim,
issue or matter therein, the Partnership shall indemnify it against the
expenses, including attorneys' fees, actually and reasonably incurred by it
in connection therewith.
11.7 Limitations on Authority. Notwithstanding any other
provisions of this Agreement, the General Partner, without the concurrence
of the Limited Partner, shall not have the authority to:
(a) confess a judgment against the Partnership;
(b) admit a person as a general partner;
(c) dissolve the Partnership;
(d) amend this Agreement, except as provided in Section 18.
11.8 Reimbursements. The General Partner shall be reimbursed
for the organization and operating expenses of the Partnership incurred on
behalf of the Partnership. The operating expenses of the Partnership shall
include all general and administrative expenses, costs of office space used
primarily for the business of the Partnership, professional fees, costs of
utilities, supplies, clerical labor, postage and mailing, recordkeeping and
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the preparation and mailing of reports to the Limited Partners, and any
other expenses or costs actually incurred by or on behalf of the
Partnership in connection with the expenses of its business. Nothing in
the foregoing shall permit reimbursement of general overhead expense not
directly and specifically incurred for the primary benefit of the
Partnership.
Section 12. Compensation of the General Partner, Affiliates and
Others.
12.1 Limitations on Compensation. Nothing contained in this
Agreement shall be deemed to restrict the right of the General Partner to
be reimbursed for sums expended by the General Partner in the conduct of
the business of the Partnership if such expenditures are reasonable in
amount and do not exceed the actual cost to the General Partner.
Furthermore, this Section 12 shall not restrict the right of the General
Partner or any other Person to receive the income to which it would
otherwise be entitled as owner of an Interest in the Partnership as a
general partner or as a limited partner.
12.2 Compensation for Services. The General Partner or its
Affiliates shall be entitled to receive compensation for any and all
services which it is permitted to perform for the Partnership pursuant to
this Agreement, in amounts and on terms equivalent to those which could be
obtained by the Partnership in arm's length transactions with
non-affiliated parties performing comparable services.
Section 13. Transfer of Units.
13.1 Restrictions on Transfer of Limited Partners' Interest.
Except as provided in this Section 13, a Limited Partner may not sell,
assign, transfer, encumber or otherwise dispose of its Interest in whole or
in part. No assignment shall be valid or effective unless it is in
compliance with the conditions contained in this Agreement and any
unauthorized transfer or assignment shall be void.
13.2 Transfer of Limited Partner's Interest for Valuable
Consideration. If a Limited Partner desires to transfer its Partnership
Interest for valuable consideration, he must first offer in writing (or be
deemed automatically to have offered) to sell its Partnership Interest to
the General Partner at the price and upon terms no less favorable than the
price and terms of the proposed transfer. Such notice to the General
Partner shall contain a true and complete copy of the proposed contract or
other document relating to the proposed transfer, including its price,
terms and conditions, and the name, address (both home and office) and
business or occupation of the Person to whom the Limited Partner desires to
transfer his Interest. The General Partner shall have 30 days from its
receipt of the notice within which to accept or reject such offer. If the
General Partner fails to accept such offer within the 30 day period, the
Limited Partner may transfer such Interest upon the terms and conditions of
the notice given to the General Partner. If the transfer is not
consummated within 90 days after the expiration of the General Partner's
thirty day option period, the provisions of this Agreement will again apply
to the Interest as if no proposed transfer had been made. A transfer of a
Limited Partner's Interest for valuable consideration shall be considered
consummated when the Limited Partner has received the full consideration
for such Interest (a note is "received" when it is delivered, even if some
installments are to be paid later).
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13.3 Transfer of the General Partner's Interest. At any time
during the term of this Agreement, the General Partner shall have the right
to admit additional limited partners to the Partnership and to transfer a
portion of the Interest of the General Partner to such additional limited
partners. Exercise of this right and allocation of any portion of the
Partnership Interest of the General Partner shall be subject in all respect
to the following conditions: (i) compliance, without additional cost or
expense to the Partnership, with all federal and state securities laws,
regulations and requirements; (ii) execution of a partnership agreement in
satisfactory form and compliance with the terms and conditions of this
Agreement and all provisions hereof; (iii) compliance, without additional
cost or expense to the Partnership, with all federal, state and local laws,
ordinances, rules and regulations concerning taxation, including, without
limitation, issuance of any legal opinion that may be requested by a
Limited Partner; and (iv) compliance, without additional cost or expense to
the Partnership, with all other applicable statutes, laws, ordinances,
rules and regulations.
13.4 Admission of Substituted Limited Partner.
(a) Except as otherwise provided in this Agreement, an
assignee of the whole or any portion of a Limited Partner's Interest shall
not have the right to be admitted as a Limited Partner in place of its
assignor unless:
(i) the assignee shall have accepted, adopted and
approved in writing, the terms and provisions of this Agreement,
as amended, by executing a counterpart hereof, and such other
documents or instruments as the General Partner may require;
(ii) the assignment instrument shall be in form
and substance satisfactory to the General Partner;
(iii) if the assignee is a corporation, the
assignee shall have provided the General Partner with evidence
satisfactory to counsel for the Partnership of the assignee's
authority to become a limited partner under the terms and
provisions of this Agreement;
(iv) any procedure required by applicable law
shall have been performed;
(v) there shall have been paid all reasonable
legal fees of the Partnership and the General Partner and all
filing, recording and publication costs in connection with his
substitution as a Limited Partner.
(b) For the purpose of allocating profits and losses and
distributing cash received by the Partnership from operations, as provided
in Sections 6 and 7 hereof, a Substituted Limited Partner shall be treated
as having become, and appearing in the records of the Partnership as, a
Limited Partner upon his signing and delivery of all of the instruments
required by the General Partner as provided in subparagraphs (a)(i) and
(ii) above.
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(c) The General Partner shall, upon the request of a
Limited Partner, furnish documentation required by this Section 13.4 and
make all official filings, recordings and publications required under the
Partnership Act and other applicable law.
13.5 Rights of Assignee of Partnership Interest.
(a) Subject to the provisions of this Section 13, and
except as required by operation of law, the Partnership shall not be
obligated for any purpose whatsoever to recognize the assignment by a
Limited Partner of his Interest until the Partnership has received notice
of the assignment.
(b) Any person who is the assignee of all or any part of a
Limited Partner's Interest, but does not become a Substituted Limited
Partner and desires to make a further assignment of such Interest, shall be
subject to all the provisions of this Section 13.
(c) Unless and until any assignee, transferee, heir or
legatee becomes a Substituted Limited Partner (in accordance with Section
13.4), his status and rights shall be limited to the rights of an assignee
of a Limited Partner's Interest. An assignee who does not become a
Substituted Limited Partner shall have no right to obtain any information
concerning the Partnership's transactions, to inspect the Partnership's
books or to vote on any of the matters on which a Limited Partner may vote
(such rights being collectively referred to as the "residual rights") and
shall, consistent with the terms of the assignment, be entitled only to
receive the share of the profits or other compensation by way of income, or
the return of the contributions, to which his assignor would otherwise be
entitled. In the event that (i) a Limited Partner assigns his Interest to
an assignee who does not become a Substituted Limited Partner (in
accordance with Section 13.4) and (ii) the assignor agrees to exercise the
residual rights solely in favor of and in the interest of the assignee,
then the assignor shall immediately and automatically forfeit all of his
residual rights.
Section 14. Dissolution of Partnership.
14.1 Causes of Dissolution. The Partnership shall be dissolved
upon the happening of any one of the following events:
(a) The bankruptcy, insolvency, dissolution, withdrawal or
removal of the General Partner unless all the remaining general partners,
if any, agree to continue the Partnership;
(b) The written consent of Limited Partners owning a
majority of the Percentage Interests;
(c) The expiration of the term of the Partnership as
specified in Section 4; or
(d) The sale or other disposition of all of the Partnership
property and the conversion into cash of all proceeds received originally
in a form other than cash.
14.2 Definition of Bankruptcy. For purposes of this Agreement,
the "bankruptcy" of the General Partner shall be deemed to have occurred
upon the happening of any of the following:
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(a) The filing of an application by the General Partner
for, or the General Partner's consent to, the appointment of a trustee of
all or a substantial portion of its assets;
(b) The filing by the General Partner of a voluntary
petition in bankruptcy or the filing of a pleading in any court of record
admitting in writing its inability to pay its debts as they become due;
(c) The making by the General Partner of a general
assignment for the benefit of creditors;
(d) The filing by the General Partner of answers admitting
the material allegations of, or its consenting to or defaulting in
answering, a bankruptcy petition filed against it in any bankruptcy
proceeding; or
(e) The entry of any order, judgment or decree by any court
of competent jurisdiction adjudicating the General Partner a bankrupt or
appointing a trustee of all or a substantial portion of its assets, and the
order, judgment or decree continuing unstayed and in effect for a period of
30 days after such entry.
Section 15. Winding up the Partnership and Distribution of
Assets.
15.1 Powers, Duties and Authority of Liquidator. Upon the
dissolution of the Partnership pursuant to Section 14.1 hereof, the General
Partner shall commence to wind up the affairs of the Partnership and to
liquidate and sell the Partnership's assets. The General Partner shall
proceed with such liquidation in as expeditious a manner as is reasonably
practicable. The Partners shall continue to share distributions, Income
and Losses during the period of liquidation in accordance with Sections 6
and 7 hereof. The General Partner shall have the sole right and discretion
to determine the time, manner and terms of any sale or sales of Partnership
property pursuant to the liquidation, having due regard for the activity
and condition of the relevant market and general financial and economic
conditions.
15.2 Cash Reserves. After making payment or provision for
payment of all debts and liabilities of the Partnership and all expenses of
liquidation, the General Partner may set up, for a period not to exceed two
years, such cash reserves as the General Partner, in its sole discretion,
may deem reasonably necessary for any contingent or unforeseen liabilities
or obligations of the Partnership. Any amounts retained as reserves by the
Liquidator that remain at the expiration of the two year period
contemplated in Section 15.2 shall be distributed in accordance with
Section 15.3.
15.3 Distribution of Liquidation Proceeds. Liquidation proceeds
shall be distributed as follows:
(a) First, to pay the expenses of liquidation and the debts
owed by the Partnership to persons other than the Partners;
(b) Second, to pay the debts owed by the Partnership to the
Partners;
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(c) Third, to establish reserves in accordance with Section
15.2 hereof; and
(d) Fourth, to the Partners prorata in accordance with
their respective positive Capital Account balances.
15.4 Statement of Assets and Liabilities. Within a reasonable
time following the completion of the liquidation of the Partnership's
properties, the General Partner shall supply to each of the Partners a
statement which shall set forth the assets and liabilities of the
Partnership upon liquidation, each Partner's prorata share of distributions
pursuant to Section 15.3, and the amount retained as reserves by the
Liquidator pursuant to Section 15.2.
15.5 Distributions and Return of Capital From Partnership Assets
Only. The Limited Partner shall look solely to the assets of the
Partnership for all distributions with respect to the Partnership, his
Capital Contributions (including the return thereof) and his share of
profits or losses, and shall have no recourse (upon dissolution or
otherwise) against the General Partner for such sums. The Limited Partner
shall have no right to demand or receive property other than cash upon
dissolution and termination of the Partnership.
15.6 Final Termination. Upon completion of the liquidation of
the Partnership and the distribution of all the Partnership funds, the
Partnership shall terminate and the General Partner is hereby given the
authority to execute and record all documents required to effectuate the
liquidation, winding up and termination of the Partnership.
Section 16. Withdrawal or Removal of General Partner.
16.1 Withdrawal.
(a) The General Partner may not withdraw from the
Partnership unless (i) the consent of a majority, as determined by
percentage ownership interest as stated in Section 5.3, of the Limited
Partners is obtained as to its withdrawal, (ii) a substitute general
partner, if any, is admitted simultaneously with the withdrawal, (as long
as there is at least one general partner remaining it shall not be required
that the withdrawing General Partner be replaced), and (iii) counsel for
the Partnership renders an opinion (relying on such opinions from other
counsel as may be necessary) that the withdrawal of the General Partner is
in conformity with the Partnership Act and that none of the actions taken
in connection with such withdrawal will cause the dissolution of the
Partnership or will cause it to be classified other than as a limited
partnership for federal income tax purposes.
(b) In the event that the General Partner withdraws from
the Partnership or sells, transfers or assigns its entire Interest, it
shall immediately cease to act as a general partner and its interest in the
net profit, net losses, distributions or other sums payable to it pursuant
to this Agreement shall terminate; provided, however, that the withdrawing
General Partner shall remain liable for all obligations and liabilities
incurred by it as a general partner before the withdrawal, sale, transfer
or assignment shall have become effective, but shall be free of any
obligation or liability incurred on account of the activities of the
Partnership from and after the time the withdrawal, sale, transfer or
assignment shall have become effective.
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16.2 Admission of a Substitute or Additional General Partner;
General Conditions. A person shall be admitted as a general partner of the
Partnership only if the following terms and conditions are satisfied:
(a) The admission shall have been consented to by all of
the Partners and, if required, by an agreement between the Partnership and
any creditors;
(b) The successor or additional Persons to be admitted as a
general partner shall have accepted and agreed to be bound by all the terms
and provisions of this Agreement by executing a counterpart hereof and such
other documents or instruments as may be required or appropriate in order
to effect admission as a general partner of the Partnership, and a
certificate evidencing such admission shall have been filed for recordation
and all other actions required by this Section 16.2 in connection with such
admission shall have been performed;
(c) If the successor or additional Person is a corporation,
it shall have provided the Partnership with evidence satisfactory to
counsel for the Partnership of its authority to become a general partner
and to be bound by the terms and provisions of this Agreement; and
(d) Counsel for the Partnership shall have rendered an
opinion (relying on such opinions from other counsel as may be necessary)
that the admission of the successor or additional person as a general
partner of the Partnership is in conformity with the Partnership Act, and
that none of the actions taken in connection with the admission of such
person will cause the dissolution of the Partnership or will cause it to be
classified other than as a partnership for federal income tax purposes.
Section 17. Notices.
All notices and demands required or permitted to be given under
this Agreement must be in writing and must be given (i) by depositing them
in the United States mail, postage prepaid, certified or registered, return
receipt requested, (ii) by prepaid telegram, or (iii) by delivering them in
person and receiving a signed receipt. The addresses of the General
Partner and the Limited Partners shall be as follows:
General Partner:
Jorge L. Mas Canosa Holdings Corporation: 2716 East 5th Street
Austin, Texas 78702
Attn: Jorge L. Mas Canosa
Limited Partners:
Jorge L. Mas Canosa: 2716 East 5th Street
Austin, Texas 78702
The Limited Partners or any assignee may designate a different
address to which notices or demands shall thereafter be directed by written
notice given in the required manner and directed to the Partnership at its
offices. The General Partner may designate a different address to which
notices or demands shall thereafter be directed by providing written notice
to the Limited Partners in the required manner.
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Section 18. Amendment of Agreement. The General Partner shall
have the authority to amend this Agreement without any vote or other action
by the Limited Partner (i) to form, qualify or continue the Partnership as
a limited partnership (or a partnership in which the limited partners have
limited liability) in all jurisdictions in which the Partnership conducts
or plans to conduct business, (ii) to satisfy any requirements, conditions,
guidelines or options contained in any opinion, directive, order, ruling or
regulation of the Securities and Exchange Commission, the IRS or any other
federal or state agency, or in any federal or state statute, compliance
with which it deems to be in the best interests of the Partnership, (iii)
to cure any ambiguity or correct or supplement any provision contained in
this Agreement which may be incomplete or inconsistent with any other
provision contained in this Agreement, or (iv) to make any changes that the
General Partner deems necessary or advisable to reflect the admission of
additional limited partners, so long as such amendment under clauses (iii)
or (iv) do not materially adversely affect the interest of any Limited
Partner.
Section 19. Miscellaneous.
19.1 Entire Agreement. This Agreement constitutes the entire
agreement between the parties hereto with respect to the subject matter
hereof. It supersedes any prior agreement or understanding among them, and
it may not be modified or amended in any manner other than as set forth in
this Agreement.
19.2 Governing Law. This Agreement and the rights of the
parties under this Agreement shall be governed by, and interpreted in
accordance with, the laws of the State.
19.3 Binding Effect. Except as herein otherwise specifically
provided, this Agreement shall be binding upon and inure to the benefit of
the parties and their legal representatives, heirs, administrators,
executors, successors and assigns.
19.4 Phrase Reference. Wherever from the context it appears
appropriate, each term stated in either the singular or the plural shall
include the singular and the plural, and pronouns stated in the masculine,
the feminine or the neuter gender shall include the masculine, feminine and
neuter.
19.5 Caption. All captions contained in this Agreement are
inserted only as a matter of convenience and in no way define, limit or
extend the scope or intent of this Agreement or any provision hereof.
19.6 Partial Invalidity. If any provision of this Agreement, or
the application of that provision to any Person or circumstance, shall be
held invalid, the remainder of this Agreement, or the application of that
provision to Persons or circumstances other than those to which it is held
invalid, shall not be affected.
19.7 Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed an original but all of which
shall constitute one and the same instrument. It shall not be necessary
for all Partners to execute the same counterpart.
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19.8 Further Assurances. If required by the General Partner,
each party hereto agrees to execute, with acknowledgment or affidavit, any
and all documents and writings which may be necessary or expedient in
connection with the creation and maintenance of the Partnership and the
achievement of its purposes, specifically including (i) the Partnership's
Certificate of Limited Partnership and all future amendments thereto, (ii)
any amendments to this Agreement and those certificates and other documents
as the General Partner deems necessary or appropriate to form, qualify or
continue the Partnership as a limited partnership (or a partnership in
which the limited partners have limited liability) in the State and in all
other jurisdictions in which the Partnership conducts or plans to conduct
business and (iii) all agreements, certificates, tax statements,
information returns and other documents as may be required of the
Partnership or its Partners by the laws of the United States of America,
the State or any other state in which the Partnership conducts or plans to
conduct business, or any political subdivision or agency.
19.9 Consents. Any consent required by this Agreement may be
given as follows:
(a) By a written consent given by the consenting Partner at
or before the doing of the act or thing for which the consent is solicited,
provided that such consent shall be nullified by either (i) notification to
the General Partner by the consenting Partner at or before the time of, or
the negative vote by such consenting Partner at, any meeting held to
consider the doing of such act or thing, or (ii) notification to the
General Partner by the consenting Partner before the doing of any act or
thing the doing of which is not subject to approval at such a meeting; or
(b) By the affirmative vote by the consenting Partner to
the doing of the act or thing for which the consent is solicited at any
meeting duly called and held to consider the doing of such act or thing.
19.10 Force Majeure. The parties to this Agreement shall be
excused from performance of their obligations under this Agreement where
they are prevented from so performing by revolution or other disorder, war,
act of enemy, fire, flood or act of God. All parties shall perform such
parts or aspects of their obligations that are not interfered with by such
causes.
19.11 Partition. Each of the parties hereto irrevocably waives
any and all rights that he may have to maintain any action for partition of
any of the properties owned by the Partnership.
Page 18 of 19
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and in the year first above written, which
counterparts, when taken together, shall constitute one and the same
instrument.
GENERAL PARTNER
Jorge L. Mas Canosa Holdings
Corporation
By: /s/ Jorge L. Mas
____________________________
Title: Jorge L. Mas, President
LIMITED PARTNER
/s/ Jorge L. Mas
________________________________
Jorge L. Mas
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