Partnership Agreement Porter Family Partnership |
AGREEMENT made the 8th day of December, 1979 by and between
Louise P. Bahnson of 612 Dorseyville Road, Pittsburgh, Pennsylvania, Mary P.
Buddington of 21 South Street, Marion, Massachusetts, Jane P. Ryder of Indies
West M-2, 2200 Gulf Shore Boulevard N., Naples, Florida, and Suzanne P. Wilkins
of 110 Highland Street, West Newton, Massachusetts, hereinafter sometimes referred
to as the "Founders". Witnesseth: WHEREAS, the parties are all sisters and each owns, as tenant in common with the others, an undivided one-quarter (1/4) interest in the family summer house located at 49 Maryland Avenue, Monument Beach, Phinney's Point, Barnstable County, Massachusetts, which they inherited from their mother, Alice H. Porter, as described in a deed recorded in the Barnstable County Registry of Deeds, Book 379, Page 384; and WHEREAS, the parties desire that the property remain in the family for the benefit of succeeding generations of each of the parties and without involvement in the estates of any one or more of the parties; and WHEREAS, the parties further desire to provide a formal structure for the management and use of said summer home by themselves, their families and their descendants; NOW THEREFOR, in consideration of the mutual covenants and conditions herein set forth, the parties have mutually agreed and hereby do mutually agree to become associated together as general partners for the purposes set forth herein under the name of the PORTER FAMILY PARTNERSHIP, hereinafter referred to as the "Partnership", upon the following terms and conditions. 1. Purpose The sole and only business and purpose for which the Partnership is formed and shall engage in is the holding, management, preservation and care of the real property located at 49 Maryland Avenue, Monument Beach, Phinneys' Point, Barnstable County, Massachusetts, and any other real property acquired by or on behalf of the Partnership, and the holding, management and transfer of any cash, bank accounts, certificates of deposit, stocks, bonds, promissory notes, governmental obligations and other securities which may from time to time be held by the Partnership incidental to the management of said real property. Upon execution of this Agreement the parties hereby covenant and agree to execute, acknowledge and deliver to each other a nominee trust instrument entitled "PORTER FAMILY TRUST", which Trust and deed shall be recorded forthwith in the Barnstable County Registry of Deeds. 2. Term; Death Of Partner. The Partnership shall commence on the date of the execution of this Instrument and shall continue until terminated as hereinafter provided. In the even that any of the partners, or persons who shall subsequently become partners hereunder, shall die, it is hereby agreed that the Partnership shall not thereby be dissolved but shall continue as a Partnership between the surviving partners and the successor partners designated as hereinafter provided as though such deceased partner had withdrawn from said Partnership during her or his lifetime and had assented to such continuance, and no liability shall in any way attach to the assets, property, effects and estate of such deceased partner because or on account of any then-existing obligation of the Partnership, and the remaining and successor partners will jointly and severally save and keep the estate of such deceased partner harmless on account thereof. 2A. Designation of Successor Partners. It is the desire and intent of the original partners that they and their families shall share, as equally as is reasonably practicable, in the use and enjoyment of the property held by the Partnership, and that upon their deaths their spouses and issue shall become and continue to be entitled to the use and enjoyment of such property, in common with the families of the other partners and their successors subject to the provisions of this Agreement. Accordingly, each of the Founders shall be an original partner and thereafter there shall always be four (4) partners hereunder, except as hereinafter provided, one (1) representing each of the Founders and her descendants, subject to the terms and conditions hereof, to be selected as hereinafter provided. Any Founder may resign as a partner and may by written notice to the other partners appoint her own successor. Upon the death or incapacity of any partner or the resignation of any partner other than a Founder, a successor partner shall be chosen by the majority vote of the living issue of the Founder whose family branch such deceased partner represented. For all purposes of this Agreement, voting by issue of a deceased Founder shall be limited to members of the oldest generation of living issue of a deceased Founder, which generation has at least one (1) such issue who is living, competent to act and willing to exercise such voting rights. Every successor partner hereunder shall serve as a nominee partner on behalf of all of the issue living from time to time of the deceased Founder whose family branch such successor partner represents. Written notice of the designation of such successor partner together with his or her acceptance thereof shall be given to the remaining partners within three (3) months from the death, resignation or removal of such partner. In the event the remaining partners have not received the written designation and acceptance of a successor partner with three (3) months from the death, resignation or removal of a partner, the remaining partners may by a majority vote designate from among the then living issue of the Founder whose family branch such partner represented, one (1) person to become a successor partner and thereupon written notice of such designation shall be given to each of the living issue of such Founder who are of full age and competent to act. Any successor partner may resign at any time and may be removed at any time by a majority vote of the then living issue, who are entitled to vote, of the Founder whose family branch such partner represents. 3. Management. a. Voting Each partner shall have one (1) vote and all Partnership decisions shall require the affirmative vote of at least three quarters (3/4) of the partners then serving, except as otherwise specifically required herein. b. Election of Trustees. Each partner shall have the right but not the obligation to designate one (1) person, including herself or himself, to serve as a Trustee of the PORTER FAMILY TRUST, and may from time to time by written notice to the other partners remove the Trustee so designated either with or without naming a successor Trustee. The persons so designated by the partners as Trustees from time to time shall serve as Trustees of the PORTER FAMILY TRUST for the benefit of the Partnership until their death, resignation or removal. c. Manager. The partners may from time to time appoint or employ a Manager who shall be responsible for the day-to-day management, maintenance and security of the real estate owned by the Partnership, and such Manager may but need not be one of the partners or other member of a family branch. Such manager shall receive such compensation, if any, as the partners may determine. d. Compensation. No partner shall receive a salary or other compensation for serving as such partner, unless serving as Manager as aforesaid. e. Use and Enjoyment Of Partnership Property. It is the desire and intention of the parties in establishing this Partnership that the summer home to be transferred by them to the Partnership shall be available for reasonable use and enjoyment by themselves and by their respective spouses, issue, and spouses of issue, including spouses of deceased issue. Accordingly, the partners shall establish whatever schedules and other procedures they deem reasonable and necessary for allocating the time for use and enjoyment of the summer home among the four (4) original partners and their descendants. The partners may establish reasonable rules and regulations governing the use of said premises and shall have full power and authority to take all legal steps necessary to enforce such rules and regulations. Such rules and regulations may but need not make provision for the payment of reasonable fees or rents by those using said premises to help defray the cost to the Partnership of maintaining the same. 4. Financial. a. Capital Contributions. The partners shall make equal contributions of capital to the Partnership as needed from time to time, either by paying the same themselves or by raising the same from among the members of the original family group of which they are a part. The partners may from time to time exclude from the use and enjoyment of the summer home any family member or members who decline to make a proportionate capital contribution to the Partnership when requested to do so by the partners. Any partner failing to make an equal capital contribution within a reasonable time after request for the same may by decision of the majority of the other partners be excluded from voting and otherwise participating in the affairs of the Partnership and from the use and enjoyment of the summer home until such time as the required capital contribution has been made. In the event the required contribution has not been made within one (1) year from the date of the request for the same, the other partners by majority vote may permanently remove such partner from the Partnership and thereafter be permanently excluded from the Partnership and from the use and enjoyment of the summer home, except as may otherwise be determined from time to time by the remaining partners. Upon such removal or withdrawal the number of partners shall thereafter be reduced to three (3) and all decisions shall require a 2/3rds vote unless otherwise specified herein. In the event of the permanent exclusion from the Partnership of a partner and all members of the family branch which such partner represents, or in the event of the voluntary permanent withdrawal of a partner or her or his family branch from participation in the Partnership, as the case may be, such partner or family branch may submit to the remaining partners an appraisal of the value of the summer home by a qualified real estate appraiser as of the date of such removal or withdrawal, at the expense of such partner, and the remaining partners shall either accept such valuation or obtain an additional appraisal at the expense of such removed or withdrawing partner and the average of both such appraisals shall be accepted by all parties as the value of the summer home on said date. Thereafter, in the event of the sale of the summer home and termination of the Partnership and distribution of its assets, the excluded family branch shall be entitled to share proportionately in the net proceeds remaining from such sale upon termination of the Partnership, but only to the extent of the appraised valuation determined as aforesaid at the time of such removal or withdrawal or the sale price of the summer home, whichever shall be less, and only after such family branch shall have reimbursed the other partners for their proportionate share of all capital contributions paid to the Partnership by the remaining partners from the date of such removal or withdrawal to the date of such termination and distribution. Additionally, the members of an excluded family branch may be readmitted to the Partnership by the unanimous vote of the partners then serving, for such capital contribution, if any, and upon such other terms and conditions as the partners may unanimously determine. b. Expenses and Losses. The partners shall be responsible for the payment of all real estate taxes and assessments and all other expenses of maintaining, repairing, improving and/or replacing the summer home premises owned by the Partnership, and they shall be responsible for maintaining insurance on said premises in such amounts and for such coverages as they shall determine. To the extent that such costs are not defrayed by rents, fees or other income, they shall be defrayed from the capital of the Partnership. c. Banking. All funds of the Partnership shall be deposited in Partnership bank accounts, as designated from time to time by the partners and all withdrawals from such accounts shall be made by such one or more of the partners or such other person as shall be designated by the partners from time to time. d. Books Of Accounts. No partner shall, without the consent of the other partners, (a) endorse any note, or act as an accomodation party, or otherwise become surety for any person; (b) on behalf of the Partnership borrow or lend money, or make, deliver or accept any extraordinary commercial paper, or execute any mortgage, security agreement, bond or lease; (c) purchase or contract to purchase, or sell or contract to sell any property for or of the Partnership; (d) assign, mortgage, grant a security interest in , or sell her or his share in the Partnership or in its capital assets or property; (e) attempt or purport to admit any new partners: (f) use the credit of the Partnership or use the assets of the Partnership for any purpose not contemplated hereunder; or (g) engage in any business or make any agreement on behalf of the Partnership not within the express scope of the Partnership as defined by this Agreement. 6. Termination. The Partnership may be terminated and dissolved at any time by a vote of three-quarters (3/4) of the partners, in which event the partners shall proceed with reasonable promptness to sell the assets of the Partnership. With respect to sale of the summer home owned by the Partnership, either on termination of the Partnership or at any other time, the partners shall give notice of such proposed sale to all of the living issue of each of the original partners hereunder who are of full age and competent to act, giving them a reasonable opportunity to purchase the same if they so desire. In the event that more than one of the partners or more than one of the other persons so notified desires to purchase said premises then they shall be sold to the highest bidder. After sale of all Partnership assets, the proceeds shall be used and distributed as follows: (a) first, all Partnership liabilities and liquidating expenses and obligations shall be paid; and (b) the remaining Partnership assets shall be divided into four (4) equal shares, or into as many equal shares as there are then participating family branches if less than four (4), and one (1) such equal share shall be distributed to each of the original partners hereunder who is the deceased and whose family branch is still participating hereunder. Payment to any such issue who is then a minor or under any other legal disability or incapacity may be made to the parent, legal guardian or spouse of such issue or to such other person acting on behalf of such issue as the partners shall in their discretion determine and such payment shall be a full discharge of the partners' obligations hereunder. 7. Miscellaneous. (a) Arbitration. Any controversy or claim arising out of or relating to any provision of this Agreement or the breach hereof, shall be settled by arbitration in accordance with the rules then in effect of the American Arbitration Association, to the extent consistent with the laws of the Commonwealth of Massachusetts. It is agreed that any party to any award rendered in any such arbitration proceedings may seek a judgment upon the reward and that judgment may be entered thereon by any court having jurisdiction. Neither the failure of the partners to achieve a three-quarters (3/4) vote on any decision nor the dissent of any partner from a three-quarters (3/4) vote of the other partners on any decision shall be deemed a controversy or claim which may be made the subject of arbitration under this paragraph. (b) Governing Law. All provisions of this Agreement shall be construed, shall be given effect and shall be enforced in accordance with the laws of the Commonwealth of Massachusetts. (c) Persons Bound. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, executors, administrators, and assigns. This Agreement may be amended only by an instrument in writing unanimously agreed to and signed by all of the partners. IN WITNESS WHEREOF, the parties have hereunto set their hands and seals to this to three (3) counterparts hereof, each of which shall be deemed to be an original, on the day and year first above written. . |
