EXHIBIT 10.18
JOINT VENTURE AGREEMENT
OF
FUND X AND FUND XI ASSOCIATES
JOINT VENTURE AGREEMENT
OF
FUND X AND FUND XI ASSOCIATES
THIS JOINT VENTURE AGREEMENT (the "Agreement") is made and entered into as
of the 15th day of July, 1998, by and between ▇▇▇▇▇ REAL ESTATE FUND X, L.P., a
Georgia limited partnership having ▇▇▇ ▇. ▇▇▇▇▇, III and ▇▇▇▇▇ Partners, L.P., a
Georgia limited partnership, as general partners ("Fund X"), and ▇▇▇▇▇ REAL
ESTATE FUND XI, L.P., a Georgia limited partnership having ▇▇▇ ▇. ▇▇▇▇▇, III and
▇▇▇▇▇ Partners, L.P., a Georgia limited partnership, as general partners ("Fund
XI"). Each of the parties may also be referred to herein as a "Venturer" and
together as the "Venturers."
W I T N E S S E T H :
WHEREAS, the Venturers desire to joint venture the acquisition,
development, operation and sale of real properties according to the terms and
conditions set forth herein;
NOW, THEREFORE, for and in consideration of the mutual covenants
hereinafter set forth, the parties hereto covenant and agree as follows:
1. DEFINITIONS.
For the purposes of this Agreement, the following defined terms
shall have the meanings ascribed thereto.
1.1 "Administrative Venturer" means the Entity responsible for the
conduct of the ordinary and usual business of the Venture and the implementation
of the decisions of the Venturers, all as is more fully set forth in Subsection
4.2 hereof. The initial Administrative Venturer shall be Fund X.
1.2 "Agreed Value" means with respect to Contributed Property the
fair market value of such property as of the date of contribution to the Venture
as determined by the general partners of the Venturers.
1.3 "Approve," "Approved" or "Approval" means, as to the subject
matter thereof and as the context may require, an express consent evidenced by
and contained in a written statement signed by the approving Entity. A copy of
each such written statement shall be kept at the office of the respective
Venturer and shall be available for inspection by the other Venturer upon
request.
1.4 "Bankrupt" or "Bankruptcy" means the occurrence of one or more
of the following events:
(i) The appointment of a permanent or temporary receiver of the
assets and properties of the Venture or a Venturer, and the failure to secure
the removal thereof within 60 days after such appointment;
(ii) The adjudication of the Venture or a Venturer as bankrupt or
the commission by the Venture or a Venturer of an act of bankruptcy;
(iii) The making by the Venture or a Venturer of an assignment for
the benefit of creditors;
(iv) The levying upon or attachment by process of the assets and
properties of the Venture or a Venturer; or
(v) The use by the Venture or a Venturer, whether voluntary or
involuntary, of any debt or relief proceedings under the present or future law
of any state or of the United States.
1.5 "Capital Account" means a separate account maintained for each
Venturer in a manner which complies with Treasury Regulation Section 1.704-1(b),
as may be amended or revised from time to time.
1.6 "Capital Contributions" means the aggregate contributions to the
capital of the Venture made by the Venturers as Capital Contributions pursuant
to Subsection 3.1 hereof.
1.7 "Contributed Property" means the interest of each Venturer
contributing property (excluding cash or cash equivalents) to the Venture in
such property.
1.8 "Defaulting Venturer" means any Venturer failing to perform any
of the obligations of such Venturer under this Agreement or violating the
provisions of this Agreement.
1.9 "Distribution Percentage Interests" means collectively the
interests in the income, gains, losses, deductions, credits, Net Cash Flow,
Extraordinary Receipts, as determined by Subsection 3.2 hereof, as such may be
adjusted from time to time as provided in this Agreement.
1.10 "Entity" means any person, corporation, partnership (general or
limited), joint venture, association, joint stock company, trust or other
business entity or organization.
1.11 "Extraordinary Receipts" means those funds of the Venture which
are derived from (i) the net proceeds of any casualty insurance insuring any of
the Properties or any
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portion thereof, to the extent not applied to the repair, restoration or
replacement of the Properties or any portion thereof as may be Approved by the
Venturers; (ii) the net proceeds of any condemnation, or any taking by eminent
domain, or any transfer in lieu thereof, of any of the Properties, or any
portion thereof, to the extent not applied to the repair, restoration or
reconstruction of any remaining portion of the Properties as may be Approved by
the Venturers; (iii) the net proceeds of any sale of any of the Properties, or
any portion thereof; and (iv) the net proceeds of any indebtedness (or any
refinancing of such indebtedness) secured in whole or in part by any of the
Properties or any portion thereof.
1.12 "Fiscal Year" means the fiscal year of the Venture established
under Subsection 3.4(c) hereof.
1.13 "I.R.C." means the Internal Revenue Code of 1986, as amended.
1.14 "Lease" means a lease or rental agreement now or hereafter
existing between the Venture, as lessor or landlord (whether initially or by
assignment) and an Entity.
1.15 "Leasing Agreements" means, collectively, those certain Leasing
and Tenant Coordinating Agreements between the Venturers as "Owner" and ▇▇▇▇▇
Management Company, Inc. as "Agent" therein, concerning the leasing of the
Properties.
1.16 "Major Decisions" means any decision or action to (i) convey by
the Venture substantially all the assets of the Venture; (ii) acquire any
Property or an interest in any Property; (iii) finance or borrow or execute any
promissory note or other obligation (other than a Lease) or mortgage or other
encumbrance in the name of or on behalf of the Venture; (iv) retain the services
of a manager other than ▇▇▇▇▇ Management Company, Inc.; (v) approve each
construction and architectural contract and all architectural plans,
specifications and drawings and all revisions or changes thereof in connection
with the development and construction of any improvements for the Properties;
(vi) reduce any portion of the insurance program for the Properties or the
Venture; (vii) determine any fee or other amount to be paid to either Venturer
or any affiliate of a Venturer; (viii) make any expenditure or incur any
obligation by or on behalf of the Venture involving a sum in excess of $15,000
for any transaction or group of similar transactions except for expenditures
made and obligations incurred pursuant to and specifically set forth in a budget
Approved by the Venturers; (ix) adjust, settle or compromise any claim,
obligation, debt, demand, suit or judgment against the Venture or any Venturer
in its capacity as a Venturer, or waive any breach of or default in any monetary
or non-monetary obligation owed to the Venture, involving singly or in the
aggregate an amount in excess of $15,000, or in the initiation of any such claim
or suit for the benefit of the Venture; (x) convey or sell any Properties or
authorize the conveyance or sale of all Properties; (xi) admit any new Venturer
to the Venture; (xii) cause the Venture to be admitted as a joint venturer to
any other joint venture; and (xiii) make any other decision or action which by
the provisions of this Agreement is required to be Approved by the Venturers or
which in a material respect affects the Venture or any of the assets or
operations thereof. All Major Decisions shall be made by
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the Venturers in a timely manner with due regard for the necessity of obtaining
and evaluating the information necessary for making such Major Decisions.
1.17 "Management Agreements" means, collectively, those certain
Management Agreements between the Venturers as "Owner" and ▇▇▇▇▇ Management
Company, Inc. as "Manager" therein, concerning the management of the Property.
1.18 "Manager" means ▇▇▇▇▇ Management Company, Inc.
1.19 "Net Cash Flow" means for a given fiscal period, those funds of
the Venture constituting the gross cash receipts of the Venture from the
operation of the Properties (including interest and proceeds from business
interruption or rent insurance) for such period exclusive of Capital
Contributions by the Venturers and Extraordinary Receipts, which are available
for distribution to the Venturers following (i) the payment of all operating,
fixed cost and capital expenditures of the Venture, for which no reserves have
been established, applicable to such period; (ii) the payment of all principal
and interest with respect to any debt secured by any mortgage permitted by this
Agreement; and (iii) the establishment by the Venturers of appropriate reserves
for taxes, debt service, maintenance, repairs and other expenses and working
capital requirements of the Venture including, without limitation, accruals for
real estate taxes, insurance and other annual expense items (unless and to the
extent the same are escrowed with a mortgagee).
1.20 "Nondefaulting Venturer" in the context wherein one or more
Venturers become a Defaulting Venturer, means the remaining Venturers (provided
the remaining Venturers are not also Defaulting Venturers).
1.21 "Notice" means a written advice or notification required or
permitted by this Agreement, as more particularly provided in Subsection 8.1
hereof.
1.22 "Prime Rate" means the rate of interest announced from time to
time by NationsBank of Georgia, N.A. as its prime rate. In the event the prime
rate of NationsBank of Georgia, N.A. is hereafter discontinued or becomes
unascertainable, the Administrative Venturer shall designate a comparable
reference rate to be the Prime Rate.
1.23 "Property" means any particular tract of land (and all rights
and appurtenances incident thereto) owned or to be owned by the Venture or owned
or to be owned by any joint venture, partnership, limited liability company or
other entity in which the Venture owns an economic or beneficial interest and
all improvements located, constructed or developed thereon or to be constructed
or developed thereon.
1.24 "Properties" means, collectively, all Property of the Venture
at any given time.
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1.25 "Purchasing Party" means the Venturer other than the Selling
Party in the event of a proposed transfer described in Subsection 6.4 hereof.
1.26 "Selling Party" means the Venturer desiring to transfer its
interest in a transaction described in Subsection 6.4 hereof.
1.27 "Venture" means the joint venture formed pursuant to the laws
of the State of Georgia by this Agreement.
1.28 "Venturer" or "Venturers" means the party or parties to this
Agreement and all permitted successors and assigns thereof.
1.29 Other terms defined in this Agreement:
Term Section
---- -------
"Assignment" 6.1
"Right of First Refusal" 6.2
"Certification" 6.4(a)
2. THE VENTURE.
2.1 Formation of Venture. The Venturers hereby enter into and form
the Venture as a joint venture for the limited purposes and scope set forth
herein. The rights and obligations of the Venturers and the status,
administration and termination of the Venture shall be governed by the laws of
the State of Georgia. The Venture is being formed for the sole purpose of
acquiring, owning, developing, operating and eventually selling the Properties.
2.2 Purposes and Scope of Venture. Subject to the provisions of this
Agreement, the activities of the Venture shall be limited strictly to the
acquisition, ownership, financing, development, leasing, operation, sale and
management of the Properties for the production of income and profit, either
directly or through the ownership of joint ventures, partnerships, limited
liability companies or other entities, and to contract to purchase and acquire
ownership interests in such Properties or entities which own such Properties,
including all activities reasonably necessary or desirable to accomplish such
purposes, and shall not be extended by implication or otherwise unless Approved
by all venturers. Nothing in this Agreement shall be deemed to restrict in any
way the freedom of any Venturer to conduct any other business or activity
whatsoever (including, without limitation, the acquisition, development,
leasing, sale, operation and management of other real property) without any
accountability to the Venture or any other Venturer, even if such business or
activity competes with the business of the Venture, it being understood by each
Venturer that the other Venturer may be interested directly or indirectly in
various other businesses and undertakings not included in the Venture.
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2.3 Name of Venture. The business and affairs of the Venture shall
be conducted under the name "Fund X and Fund XI Associates" (or such other names
as shall be approved by both Venturers), and such name shall be used at all
times in connection with the business and affairs of the Venture. The Venturers
shall execute any assumed or fictitious name certificate or certificates
required by law to be filed in connection with the formation of the Venture and
shall cause such certificate or certificates to be filed in the appropriate
records.
2.4 Scope of Authority. Except as otherwise expressly and
specifically provided in this Agreement, no Venturer shall have any authority to
act for, or assume any obligations or responsibility on behalf of, any other
Venturer or the Venture.
2.5 Principal Place of Business. The principal place of business and
initial office of the Venture shall be located at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, and may be relocated as may be from time to time
Approved by the Venturers.
2.6 Representations, Warranties and Indemnity. In order to induce
the other Venturer to enter into this Agreement, each Venturer does hereby make
to each other Venturer the representations and warranties hereinafter set forth,
and does hereby agree to indemnify and hold each other Venturer harmless from
any and all loss, expense or liability any other Venturer may suffer as a result
of any inaccuracy as of the date hereof in any representation and warranty set
forth below:
(a) Authorization. The execution and delivery of this
Agreement has been duly authorized by the agreements by which each Venturer was
either created or currently governed.
(b) Claims. There is no claim, litigation, proceeding or
governmental investigation pending, or, so far as is known to each Venturer,
threatened, against or relating to each Venturer, or the transactions
contemplated by this Agreement which does or would reasonably be expected
materially and adversely to affect the ability of each Venturer to enter into
this Agreement or to carry out its obligations hereunder, and there is not any
basis for any such claim, litigation, proceeding or governmental investigation.
(c) Conflicts. Neither the consummation of the transactions
contemplated by this Agreement to be performed, nor the fulfillment of the
terms, conditions and provisions of this Agreement, conflict with or will result
in the breach of any of the terms, conditions or provisions of, or constitute a
default under, the agreements by which each Venturer was created or is currently
governed or any material agreement, indenture, instrument or undertaking to
which each Venturer is a party.
(d) Investment Objectives. The investment objectives of each
Venturer with respect to the Properties and the objectives of the Venture are:
(i) to maximize Net Cash Flow; (ii) to preserve, protect and return the
Venturers' investment in the Venture; and (iii) to realize appreciation upon the
sale of the Properties.
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(e) Charges to the Venturer. Neither Venturer will be charged,
directly or indirectly, more than once for the same services.
2.7 Term of Venture.
(a) Commencement. The Venture term shall begin on the date of
this Agreement as set forth above and end upon dissolution of the Venture.
(b) Dissolution and Termination. Dissolution shall occur upon
the occurrence of any of the events described in Section 7 of this Agreement.
Upon dissolution, the assets shall be liquidated in due course and distributed
as provided in Subsection 3.3(c)(i) hereof. The Venture shall continue until
termination in accordance with the relevant dissolution and termination
provisions of the Georgia Uniform Partnership Act.
3. FINANCIAL STRUCTURE.
3.1 Capital Contributions. The Venturers shall from time to time
make Capital Contributions to the Venture in such amounts as are agreed to by
the Venturers.
3.2 Distribution Percentage Interest. The Distribution Percentage
Interest of each of the Venturers shall be equal to the percentage equivalent
(rounded to the nearest one-hundredth of a percent) of a fraction, the numerator
of which is the aggregate of all Capital Contributions (or the Agreed Value
thereof) made by the Venturer pursuant to Subsection 3.1 hereof, and the
denominator of which is the aggregate amount of all Capital Contributions (or
the Agreed Value thereof) made by all of the Venturers pursuant to Subsection
3.1 hereof. Each Venturer's interest in the Venture shall always be proportional
to its Capital Contributions.
Each Venturer (the "First Venturer") does hereby agree to indemnify
and hold the other Venturer (the "Second Venturer") harmless from and against
any claim, action, liability, loss, damage, cost or expense, including, without
limitation, attorney's fees and expenses incurred by the Second Venturer by
reason of (i) any act or omission of the First Venturer in connection with the
operation of the Venture and the Properties, or (ii) the claims made by third
parties to the extent that the Second Venturer's percentage share of the total
liability, loss, damage, cost or expense incurred by the Venture and the
Venturers in connection with such claims exceeds its Distribution Percentage
Interest at the time such liability, loss, damage, cost or expense is suffered
or incurred. Upon dissolution, each Venturer shall look solely to the assets of
the Venture for the return of its investment, and if the Venture Property
remaining after payment or discharge of the debts and liabilities of the
Venture, including debts and liabilities owed to one or more of the Venturers,
is insufficient to return the aggregate Capital Contributions of each Venturer,
such Venturers shall have no recourse against the Venture or any other Venturer.
3.3 Allocations and Distributions. Allocations for accounting
purposes and for federal, state and local income tax purposes of each item of
income, loss, deduction and gain,
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and distributions of Net Cash Flow and Extraordinary Receipts shall be allocated
among the Venturers as follows:
(a) Allocation of Tax Items. For federal, state and local
income tax purposes and for purposes of maintaining the Venturers' Capital
Accounts, except as otherwise provided herein, each item of income, gain, loss
and deduction of the Venture for each tax year shall be allocated to the
Venturers in accordance with their Distribution Percentage Interests.
(b) Net Cash Flow. All distributions of Net Cash Flow shall be
made to the Venturers in accordance with each such Venturer's Distribution
Percentage Interest and shall be made at such intervals as may be approved by
the Venturers, but in no event less frequently than quarterly.
(c) Extraordinary Receipts. Distributions of Extraordinary
Receipts shall be made as follows:
(i) Distributions Not in Connection With Dissolution.
Distribution of Extraordinary Receipts not generated in connection with an event
of dissolution shall be made as follows: first, to the establishment of any
reserve approved by the Venturers; and second, to the Venturers based on their
respective Distribution Percentage Interests.
(ii) Distributions in Connection With Dissolution.
Distribution of Extraordinary Receipts generated in connection with an event of
dissolution (as well as the other assets of the Venture) shall be made as
follows: first, to the payment of debts and liabilities of the Venture to
creditors (including all mortgages, but excluding any other debts or liabilities
to Venturers or affiliates of Venturers), and to the expenses of liquidation;
second, to the establishment of such reserves as the Venturers may deem
reasonably necessary for contingent or unforeseen liabilities or obligations of
the Venture, which may be held in escrow for a reasonable period of time and
then distributed pursuant to the remainder of this Subsection; third, to the
repayment of any remaining debts and obligations of the Venture to the Venturers
or affiliates of the Venturers; and fourth, to the Venturers in accordance with
the positive balances in their respective Capital Accounts.
(d) Compliance with Section 704(c). To comply with Section
704(c) of the I.R.C., items of income, gain, loss, depreciation and cost
recovery deductions attributable to Contributed Property shall be allocated for
federal income tax purposes among the Venturers in the manner provided under
Section 704(c) of the I.R.C. taking into account the variation, if any, between
the Agreed Value of such Property and its adjusted tax basis at the time of
contribution.
(e) Qualified Income Offset. Notwithstanding any provision to
the contrary contained herein, in the event that any Venturer receives an
adjustment, allocation or distribution described in Treasury Regulations
Sections 1.704-1(b)(2)(ii)(d)(4), (5) or (6) which causes a deficit balance in
such Venturer's Capital Account, such Venturer will be allocated
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items of income or gain (consisting of a pro rata portion of each item of
partnership income, including gross income, and gain for such year) in an amount
and manner sufficient to eliminate such deficit balance as quickly as possible,
all in accordance with Treasury Regulations Section 1.704-1(b)(2)(ii)(d). (It is
the intent of the Venturers that the foregoing provision constitute a "Qualified
Income Offset," as defined in Treasury Regulations Section 1.704-1(b)(2)(ii)(d),
and the foregoing provision shall in all events be interpreted so as to
constitute a valid "Qualified Income Offset.")
3.4 Income Taxes and Accounting.
(a) Income Tax Returns. All income tax returns of the Venture
shall be prepared on an accrual basis (except to the extent as may otherwise be
Approved by all Venturers or be required by law, statute or regulation governing
such tax and returns).
(b) Elections. Any provision of this Agreement to the contrary
notwithstanding, solely for federal income tax purposes, each of the Venturers
hereby recognizes that the Venture will be subject to all provisions of
Subchapter K of Chapter 1 of Subtitle A of the I.R.C.; provided, however, that
the filing of U.S. Partnership Returns of Income shall not be construed to
extend the purposes of the Venture or expand the obligations or liabilities of
the Venturers. The Venture shall file an election under Section 754 of the
I.R.C. only in the event of a transfer or proposed transfer by any one or more
Venturers of all or any part of their interest or interests in the Venture to
any Entity. Such election shall be filed by the Venture upon the request of any
Venturer made with respect to the income tax return for the period which
includes the date of transfer of such interest in the Venture; such request
shall be in writing and shall be made not less than 60 days prior to the initial
date established by law for filing such income tax return.
(c) Fiscal Year. The Venture shall operate on a calendar year
basis.
(d) Books of Account. The books of account of the Venture and
the Venturer's Properties shall be kept and maintained at all times by the
Administrative Venturer or the delegated representative thereof at the principal
place of business of the Administrative Venturer. The books of account shall be
maintained on an accrual basis, unless otherwise determined by the
Administrative Venturer, in accordance with generally accepted accounting
principles, consistently applied, and shall show all items of income and expense
relating to the Venture and the Properties.
(e) Reports. The Administrative Venturer shall cause to be
prepared at the expense of the Venture and furnished to each of the Venturers
the information and data with respect to the Venture during the Fiscal Year as
shall enable each Venturer on a timely basis to prepare or cause to be prepared
the reports required under their respective partnership agreements to be made to
their partners. In addition, within 60 days after the end of each Fiscal Year,
the Administrative Venturer shall use its best efforts to cause to be prepared
and to deliver to each Venturer a report setting forth in sufficient detail all
such information and data with
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respect to business transactions effected by or involving the Venture during
such Fiscal Year as shall enable the Venture and each Venturer to prepare its
federal, state and local income tax returns on a timely basis in accordance with
the laws, rules and regulations then prevailing. The Administrative Venturer
shall cause to be prepared federal, state and local tax returns required of the
Venture and submit such returns to the Venturers no later than 30 days prior to
the date required for the filing thereof and shall file the same.
(f) Records. Any Venturer shall have the right at all
reasonable times during usual business hours to audit, examine and make copies
of the books of account of the Venture. Such right may be exercised through any
agent or employee of such Venturer designated by such Venturer or by an
independent certified public accountant designated by such Venturer. Any
Venturer shall bear all expenses incurred in any examination or audit made for
such Venturer's account.
(g) Audits. In the event that the Internal Revenue Service or
any other governmental agency with jurisdiction shall conduct, commence or give
notification of intent to conduct or commence any audit or other investigation
of the books, records, tax returns or other affairs of the Venture, the
Administrative Venturer shall immediately advise the Venturers thereof by
Notice. The Administrative Venturer shall be the "tax matters partner," as that
term is defined by I.R.C., if one is needed for the Venture.
3.5 Banking. Funds of the Venture shall be deposited in an account
or accounts of a type, in form and name and in a bank or banks selected by the
Administrative Venturer. No funds other than Venture funds shall be deposited in
any such account. Withdrawals from bank accounts shall be made by the
Administrative Venturer and by such other parties as may be designated by the
Venturers.
4. MANAGEMENT.
4.1 Authority of Administrative Venturer. The overall management and
control of the business and affairs of the Venture shall be vested in the
Venturers, collectively, acting by and through the Administrative Venturer. The
Administrative Venturer shall have responsibility for establishing the policies
and operating procedures with respect to the business and affairs of the Venture
and for making all decisions, except as otherwise provided herein and except
Major Decisions, as to all matters which the Venture has authority to perform,
as fully as if the Venturers were themselves making such decisions. All
decisions, other than Major Decisions, with respect to the management and
control of the Venture made by the Administrative Venturer shall be binding on
the Venture and all Venturers. The Administrative Venturer shall be responsible
for performing, or for causing to be performed, all acts necessary to accomplish
the purposes of the Venture. No act shall be taken, sum expended, decision made
or obligation incurred by the Venture, or any Venturer, with respect to a matter
within the scope of any of the Major Decisions, unless such matter has been
Approved by all of the Venturers. Except as otherwise expressly provided for in
this Agreement, documents executed by or behalf of the Venture shall be executed
only with the Approval of the Administrative Venturer.
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4.2 Administrative Venturer. The initial Administrative Venturer
shall be Fund X. The Administrative Venturer shall, at the expense of the
Venture, discharge or cause the discharge of the duties of the Administrative
Venturer unless and until (i) the Administrative Venturer resigns as the
Administrative Venturer, or (ii) the Administrative Venturer becomes a
Defaulting Venturer. In the event of an occurrence described in either clause
(i) or (ii) of the immediately preceding sentence, the then current
Administrative Venturer shall thereupon be relieved from any further performance
of the functions of the Administrative Venturer under this Agreement and a
replacement for the Administrative Venturer shall be Fund XI or shall be
appointed by Fund XI. In the event an Entity not a Venturer shall be appointed
to be Administrative Venturer, such Entity shall discharge the functions of the
Administrative Venturer under this Agreement but shall not be entitled to any of
the rights, titles or interests of a Venturer. The breach or violation by the
Administrative Venturer of any provision of this Subsection, or of any other
duty or obligation imposed upon the Administrative Venturer by this Agreement,
shall subject to the Administrative Venturer to the provisions of Subsection 4.4
hereof as a Defaulting Venturer (provided the Administrative Venturer is then
also a Venturer) only if such breach or violation by the Administrative Venturer
involves fraud, negligence or willful misconduct. Furthermore, the
Administrative Venturer shall be liable to the Venture and to the Venturers for
any breach or violation of the Administrative Venturer's duties and obligations
under this Subsection only if such breach or violation involves fraud,
negligence or willful misconduct.
(a) Records. The Administrative Venturer shall maintain or
cause to be maintained at the expense of the Venture, books of account as
described in Subsection 3.4(d) hereof.
(b) Property Taxes and Licenses. The Administrative Venturer
shall cause to be filed each year timely ad valorem tax returns for the
Properties.
(c) Leases. The Administrative Venturer is authorized to
negotiate and execute Leases on behalf of the Venture without further Approval
of the Venturers and is authorized to delegate this responsibility pursuant to a
management agreement. Initially, this responsibility will be delegated to the
Manager under the Management Agreements and Leasing Agreements by and between
the Venturers and the Manager.
(d) Indemnity. The Venture shall indemnify and hold the
Administrative Venturer harmless against all claims, actions, liability, loss,
damage, cost or expense, including attorney's fees and expenses, by reason of
any act or omission of the Administrative Venturer that is duly authorized and
performed in accordance with the terms and provisions of this Agreement.
However, any Entity which is both the Administrative Venturer and a Venturer
shall be responsible as a Venturer, to the extent of the proportionate liability
thereof, for such obligation for the Venture to so indemnify and hold harmless
the Administrative Venturer. The liability of the Venturers under this
Subsection shall be several, and not joint, and shall be shared in proportion to
the Distribution Percentage Interests of the Venturers.
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4.3 Compensation of Venturers. No payment will be made by the
Venture to any Venturer for the services of such Venturer or any affiliate,
partner or employee of any Venturer, other than as provided in the Management
Agreements and the Leasing Agreements.
4.4 Defaulting Venturer. If any Venturer fails to perform any of its
obligations under this Agreement or violates the terms of this Agreement, such
Venturer shall be a Defaulting Venturer and the Nondefaulting Venturer shall
have the right to give such Defaulting Venturer a Notice specifically setting
forth the nature of the default and stating that such Defaulting Venturer shall
have a period of 15 days to pay any sums of money specified therein as due and
owing to the Venture or to any Venturer, or 30 days (or such longer period as is
specified in the next succeeding sentence) to cure any other default specified
in such Notice. If the monies specified are not paid within such 15 day period
or such Defaulting Venturer does not cure all other defaults within such 30 day
period, or, if the defaults are not capable of being cured within such 30 day
period, such Defaulting Venturer has not commenced in good faith the curing of
such defaults within such 30 days period and does not thereafter prosecute to
completion with diligence and continuity the curing thereof, the Nondefaulting
Venturer shall have all rights provided in Subsections 4.4(a) through 4.4(c)
below, in addition to any other rights it may have under the Georgia Uniform
Partnership Act. If a Defaulting Venturer completely cures all of such defaults
within the aforesaid cure periods, then such defaults shall be deemed no longer
to exist and such Venturer shall be deemed no longer to constitute a Defaulting
Venturer unless and until another default by such Venturer occurs. A Defaulting
Venturer shall have no power or authority to bind the Venture or the Venturers
but shall cooperate with and, to the extent requested, assist the Nondefaulting
Venturers in every way possible.
(a) Equitable Relief. The Nondefaulting Venturer may bring any
proceeding in the nature of injunction, specific performance or other equitable
remedy, it being acknowledged by each of the Venturers that damages at law may
be an inadequate remedy for a default or threatened breach of this Agreement.
(b) Damages. The Nondefaulting Venturer may bring any action
at law by or on behalf of itself or the Venture as may be permitted in order to
recover damages.
(c) Dissolution. The Nondefaulting Venturer may institute such
proceedings as may be appropriate to secure an accounting and to dissolve, wind
up and terminate the Venture.
(d) Additional Remedies. The rights and remedies of the
Venturers under this Agreement shall not be mutually exclusive; that is, the
exercise of one or more of the provisions hereof shall not preclude the exercise
of any other provisions hereof, except as may be expressly provided in this
Agreement. Each of the Venturers confirms that damages at law may be an
inadequate remedy for a breach or threatened breach of this Agreement and agrees
that, in the event of a breach or threatened breach of any provision hereof, the
respective rights and obligations hereunder shall be enforceable by specific
performance, injunction or other
12
equitable remedy, but nothing herein contained is intended to, nor shall it,
limit or affect any right or rights at law or by statute or otherwise of any
Venturer aggrieved as against any other Venturer for breach or threatened breach
of any provisions of this Agreement, it being the intention of this Subsection
to make clear the Agreement of the Venturers that the respective rights and
obligations of the Venturers under this Agreement shall be enforceable in equity
as well as at law or otherwise.
4.5 Limitation on Authority. Notwithstanding any provision of this
Agreement to the contrary, neither Venturer shall have the authority to take any
action which, if taken singularly by such Venturer separate from the Venture,
would be prohibited by such Venturer's
4.6 Holding Title as Nominee. With the consent of the other
Venturers, any Venturer shall be authorized to hold title to a Property or
Properties as agent or as nominee on behalf of the Venture.
5. INSURANCE.
5.1 Minimum Insurance Requirements. The Venture shall carry and
maintain in force the insurance hereinafter described, the premiums for which
shall be a cost and expense of the Venture.
(a) Liability Insurance. Comprehensive general liability
insurance for the benefit of the Venture and the Venturers as named insureds
against claims for "personal injury" liability.
(b) Other Insurance. Such other insurance as the Venturers may
reasonably deem to be necessary or as may be required by any mortgagee of any
Property of the Venture.
5.2 Insureds. All of the policies of insurance described in
Subsection 5.1 shall name the Venture and each of the Venturers as named
insureds, as their respective interests may appear. All such insurance shall be
effected under policies issued by insurers and be in forms and for amounts
Approved by both Venturers.
6. TRANSFERS AND OTHER DISPOSITIONS.
6.1 Prohibited Transfers. No Venturer may sell, transfer, assign,
mortgage, pledge, hypothecate or otherwise dispose of, encumber or permit or
suffer any encumbrance on (all referred to as "Assignment"), all or any part of
the interest of such Venturer in the Venture or in the Properties (including,
but not limited to, the right to receive any distributions under this Agreement)
unless such an Assignment is Approved by all Venturers, provided that this
restriction on Assignment shall not apply to the Assignment of units of
partnership interests or beneficial interests in a Venturer. Any Assignment made
in violation of this Section 6 shall be void.
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6.2 Exceptions. The prohibition in Subsection 6.1 hereof shall not
apply to an Assignment permitted under Subsection 6.4 hereof ("Right of First
Refusal").
6.3 Notice. Each Venturer shall promptly by Notice inform the other
Venturer of the occurrence of any disposition not required to have been Approved
by the other Venturer.
6.4 Right of First Refusal. If any Selling Party shall desire to
transfer (for the purposes of this Subsection the terms "transfer" and
"transferred" include any and all types of disposition) all or any portion of
its interest in the Venture to any Entity, such Selling Party may consummate
such transfer only if (i) such sale is a sale of Selling Party's interest in the
Venture separate and distinct from any other property, (ii) the consideration
payable is cash and/or note(s) and not an interest in other property, and (iii)
the provisions and conditions of Subsections (a) through (d) hereof have been
complied with.
(a) Certification. The Selling Party shall deliver to the
Purchasing Party a written certification ("Certification") reflecting (i) the
name of the prospective transferee of the entire interest of the Selling Party
in the Venture; (ii) the price for which, and the terms upon which, the Selling
Party is willing to transfer and such prospective transferee is willing to buy
the entire interest of the Selling Party in the Venture (which price and terms
shall be based either upon preliminary discussions and negotiations, evidenced
in a writing signed by the prospective transferee, between the Selling Party and
such prospective transferee or upon a fully negotiated and executed purchase
agreement, a copy of which shall be furnished to the Purchasing Party); and
(iii) whether the Selling Party has any interest, financial or otherwise, in the
prospective transferee and whether, to the best knowledge of the Selling Party,
there exists any other contract or offer for the purchase of all or any portion
of the Properties or of the Selling Party's interest in the Venture. Such
Certification shall be accompanied by a request (in the form of a Notice) by the
Selling Party to the Purchasing Party to either Approve such transfer and
prospective transferee or to purchase the Selling Party's interest in the
Venture for the price and upon the terms provided in such Certification. The
Selling Party may transfer the interest of the Selling Party in the Venture only
to such prospective transferee or to the Purchasing Party. The Purchasing Party
must either approve such prospective transferee or purchase the interest of the
Selling Party in the Venture.
(b) Purchasing Party's Rights. The Purchasing Party shall have
the right either (i) to allow the Selling Party to transfer the interest of the
Selling Party in the Venture for a price and upon terms no more favorable to the
prospective transferee than those reflected, and to the prospective transferee
named in the Certification, or (ii) to purchase the Selling Party's entire
interest in the Venture at the price contained in the Certification and on the
other terms and conditions of the Certification. The price for which, and the
terms upon which, the Selling Party shall transfer its interest in the Venture
shall, by way of illustration and not limitation, be deemed "more favorable"
than those reflected in the Certification if (i) the total actual transfer price
is lower than that set forth in such Certification, (ii) a lesser portion of the
price is paid in cash at the time of the transfer than that set forth in such
Certification, or (iii) the portion of the price not paid in cash at the time of
the transfer is payable over a
14
longer period of time, at a lower interest rate or with lower or less frequent
periodic payments than those set forth in such Certification.
(c) Notice of Election. The Purchasing Party shall have a
period of 60 days after receipt of the Selling Party's Certification specified
in Subsection 6.4(a) hereof to serve upon the Selling Party a Notice which shall
specify whether such Purchasing Party will Approve a transfer to such
prospective transferee, or whether the Purchasing Party shall purchase the
entire interest of the Selling Party as provided in Subsection 6.4(b) hereof. If
the Purchasing Party fails to give such Notice within the allocated time, the
Purchasing Party shall be deemed to have approved the transfer of the interest
to such prospective transferee, and the Purchasing Party shall, if requested by
the Selling Party, execute, acknowledge and deliver such documents, or cause the
same to be executed, acknowledged and delivered, including without limitation,
the rights and restrictions contained in this Section 6 with respect to further
transfers. Any such new Venturer shall execute and deliver to the other
Venturers such documents as the other Venturers may reasonably request
confirming the assumption by such new Venturer of the obligations of the Selling
Party under this Agreement. At the time of closing of a transfer to a third
party transferee pursuant to this Subsection 6.4, the Purchasing Party shall
execute and deliver to the Selling Party and such transferee a written estoppel
certificate in recordable form pursuant to which the Purchasing Party shall
certify and agree that to the best of the Purchasing Party's knowledge and
belief the pending transfer is permitted pursuant to this Subsection (provided,
that to the best of the Purchasing Party's knowledge and belief such transfer
is, in fact, permitted by this Subsection). In such estoppel certificate, the
Purchasing Party shall waive any further right whatsoever to attempt to force a
rescission or setting aside of such transfer; provided, however, the Purchasing
Party shall expressly reserve any rights thereafter to pursue any action for
damages against both the Selling Party and the transferee should the Purchasing
Party thereafter determine that, contrary to the Purchasing Party's earlier best
knowledge and belief, the transfer was in fact not consummated in strict
accordance with the terms of this Section 6.
(d) Power of Attorney. In the event that either (i) the
Purchasing Party shall have failed to respond, in the manner and within the time
required by Subsection 6.4(c) hereof, to the Selling Party's Certification
specified in Subsection 6.4(a) hereof, or (ii) the Purchasing Party shall have
served upon the Selling Party a Notice specifying that the Purchasing Party has
approved a transfer to a prospective transferee of the Selling Party as
contemplated by Subsection 6.4(c) hereof, and the Purchasing Party shall have
thereafter failed or refused, within ten days after receipt of a Notice from the
other Venturer requesting same, to execute, acknowledge and deliver such
documents, or cause the same to be done, as shall be required to effectuate a
transfer of such interest in accordance with the Certification, then, and in
either of such events, the Selling Party may execute, acknowledge and deliver
such documents for, on behalf of and in the stead of the Purchasing Party, and
such execution, acknowledgment and delivery by the Selling Party shall be for
all purposes as effective against and binding upon the Purchasing Party as
though such execution, acknowledgment and delivery had been by the Purchasing
Party; provided, however, that no such documents executed by the Selling Party
shall contain any undertaking on behalf of the Purchasing Party beyond the scope
of the undertakings
15
necessary for the Selling Party to effectuate such transfer. Each Venturer does
hereby irrevocably constitute and appoint each other Venturer as the true and
lawful attorney in fact of such Venture and the successors and assigns thereof,
in the name, place and stead of such Venturer or the successors or assigns
thereof, as the case may be, to execute, acknowledge and deliver such documents
in the event such Venturer shall be the Purchasing Party under the circumstances
contemplated by this Subsection 6.4(d). It is expressly understood, intended and
agreed by each Venturer, for such Venturer and the successors and assigns
thereof, that the grant of the power of attorney to each other Venturer pursuant
to this Subsection 6.4(d) is coupled with an interest, is irrevocable and shall
survive the death, termination or legal incompetency of such granting Venturer,
as the case may be, or the assignment of the interest of such granting Venturer
in the Venture, or the dissolution of the Venture.
7. DISSOLUTION AND TERMINATION.
The Venture shall dissolve on December 31, 2028, or upon the
occurrence of any of the following:
(i) A decree of a court of competent jurisdiction declaring
dissolution;
(ii) Sale of all or substantially all of the assets of the Venture;
(iii) The Venture or either Venturer is adjudicated insolvent or
bankrupt;
(iv) Termination of either of the Venturers; or
(v) Unanimous consent of the Venturers.
Upon the occurrence of any of the events set forth in this Section 7, Notice
thereof shall be given to all of the Venturers by the Administrative Venturer
and the Administrative Venturer shall, as required by Subsection 2.7(b) hereof,
proceed to terminate and wind up the Venture and shall distribute the
Extraordinary Receipts (and the other assets of the Venture) resulting therefrom
in accordance with Subsection 3.3(c) hereof.
8. MISCELLANEOUS PROVISIONS.
8.1 Notices. Notices given under this Agreement shall be in writing
and shall be deemed to have been properly given or served by the deposit of such
with the United States Postal Service, or any official successor thereto,
designated as registered or certified mail, return receipt requested, bearing
adequate postage and addressed as hereinafter provided. The time period in which
a response to any such Notice must be given or any action taken with respect
thereto, however, shall commence to run from the date of receipt on the return
receipt of the Notice. Rejection or other refusal to accept or the inability to
deliver because of changed address or status of which no Notice was given to the
Administrative Venturer shall be deemed to be receipt of the Notice sent. In the
event that registered or certified mail is not being
16
accepted for prompt delivery, each Notice may then be served by personal service
addressed as hereinafter provided. By giving to the other Venturer at least 30
days' Notice thereof, any Venturer shall have the right from time to time during
the term of this Agreement to change his Notice address(es) and to specify as
his Notice address(es) any other address(es) within the continental United
States of America. Each Notice to the Venturers shall be sent to the addresses
set forth below (unless such Notice address is properly changed):
▇▇▇▇▇ Real Estate Fund X, L.P.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ Real Estate Fund XI, L.P.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
8.2 Governing Law. This Agreement and the obligations of the
Venturers hereunder shall be interpreted, construed and enforced in accordance
with the laws of the State of Georgia, including the Georgia Uniform Partnership
Act.
8.3 Fees and Commissions. Except as may otherwise be provided
herein, each Venturer hereby represents to each other Venturer that there are no
claims for brokerage or other commissions or finder's or other similar fees in
connection with the transactions contemplated by this Agreement insofar as such
claims shall be based on arrangements or agreements made by or on behalf of the
Venturer so representing, and each Venturer so representing hereby indemnifies
and agrees to hold harmless each other Venturer from and against all
liabilities, cost, damages and expenses from any such claims.
8.4 Waiver. No consent or waiver, express or implied, by any
Venturer to or of any breach or default by any other Venturer in the performance
by such other Venturer of the obligations thereof under this Agreement shall be
deemed or construed to be a consent or waiver to or of any other breach or
default in the performance by such other Venturer of the same or any other
obligations of such other Venturer under this Agreement. Failure on the part of
any Venturer to complain or any act or failure to act of any other Venturer or
to declare any other Venturer in default, irrespective of how long such failure
continues, shall not constitute a waiver of such Venturer of the rights thereof
under this Agreement.
8.5 Severability. If any provision of this Agreement or the
application thereof to any Entity or circumstances shall be invalid or
unenforceable to any extent, the remainder of this Agreement and the application
of such provisions to any other Entity or circumstance shall not be affected
thereby and shall be enforced to the greatest extent permitted by law.
8.6 Status Reports. Recognizing that each Venturer may find it
necessary from time to time to establish to third parties such as accountants,
banks, mortgagees or the like, the then current status of performance hereunder,
upon the written request of any other Venturer,
17
made from time to time by Notice, each Venturer shall furnish promptly a written
statement (in recordable form, if requested) on the status of any matter
pertaining to this Agreement to the best of the knowledge and belief of the
Venturer making such statement.
8.7 Entire Agreement - Amendment. This Agreement constitutes the
entire agreement of the Venturers with respect to the subject matter hereof.
Neither this Agreement nor any provision hereof may be changed, waived,
discharged or terminated orally, but only by an instrument in writing signed by
the Venturer against whom enforcement of the change, waiver, discharge or
termination is sought. The execution of any amendment to this Agreement, or the
execution of any other agreement or amendment thereto, by all Venturers shall
establish that such execution was made in accordance with any applicable
requirements for Approval.
8.8 Terminology. All personal pronouns used in this Agreement,
whether used in the masculine, feminine or neuter gender, shall include all
other genders; the singular shall include the plural; and the plural shall
include the singular. Titles of Sections, Subsections and Paragraphs in this
Agreement are for convenience only, and neither limit nor amplify the provisions
of this Agreement, and all references in this Agreement to Sections, Subsections
or Paragraphs shall refer to the Section, Subsection or Paragraph of this
Agreement unless specific reference is made to another document or instrument.
8.9 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
together shall comprise but a single instrument.
8.10 Successors and Assigns. Subject to the restrictions on
transfers and encumbrances set forth herein, this Agreement shall inure to the
benefit of and be binding upon the Venturers and their respective heirs,
executors, legal representatives, successors and assigns. Whenever in this
Agreement a reference to any Entity or Venturer is made, such reference shall be
deemed to include a reference to the heirs, executors, legal representatives,
successors and assigns of such Entity or Venturer.
18
IN WITNESS WHEREOF, the undersigned Venturers have executed this Joint
Venture Agreement of Fund X and Fund XI Associates under seal as of the day and
year first above written.
▇▇▇▇▇ REAL ESTATE FUND X, L.P.
A Georgia Limited Partnership
By: ▇▇▇▇▇ Partners, L.P.
A Georgia Limited Partnership
(As General Partner)
By: ▇▇▇▇▇ Capital, Inc.
A Georgia Corporation
(As General Partner)
Signed, sealed and delivered By: /s/ ▇▇▇ ▇. ▇▇▇▇▇, III
in the presence of: -------------------------
▇▇▇ ▇. ▇▇▇▇▇, III
President
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------- [Corporate Seal]
Unofficial Witness
/s/ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
--------------------------------
Notary Public
Notary Public, Gwinnett County, Georgia
My Commission Expires June 24, 2000
Signed, sealed and delivered By: /s/ ▇▇▇ ▇. ▇▇▇▇▇, III
in the presence of: -------------------------
▇▇▇ ▇. ▇▇▇▇▇, III
General Partner
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Unofficial Witness
/s/ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
--------------------------------
Notary Public
Notary Public, Gwinnett County, Georgia
My Commission Expires June 24, 2000
19
▇▇▇▇▇ REAL ESTATE FUND XI, L.P.
A Georgia Limited Partnership
By: ▇▇▇▇▇ Partners, L.P.
A Georgia Limited Partnership
(As General Partner)
By: ▇▇▇▇▇ Capital, Inc.
A Georgia Corporation
(As General Partner)
Signed, sealed and delivered By: /s/ ▇▇▇ ▇. ▇▇▇▇▇, III
in the presence of: -------------------------
▇▇▇ ▇. ▇▇▇▇▇, III
President
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------- [Corporate Seal]
Unofficial Witness
/s/ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
--------------------------------
Notary Public
Notary Public, Gwinnett County, Georgia
My Commission Expires June 24, 2000
Signed, sealed and delivered By: /s/ ▇▇▇ ▇. ▇▇▇▇▇, III
in the presence of: -------------------------
▇▇▇ ▇. ▇▇▇▇▇, III
General Partner
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Unofficial Witness
/s/ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
--------------------------------
Notary Public
Notary Public, Gwinnett County, Georgia
My Commission Expires June 24, 2000
20