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NINTH AMENDED AND RESTATED PARTNERSHIP AGREEMENT
HOUSING DEVELOPMENT ASSOCIATES S.E.
Dated: December 31, 1997
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This amended and restated partnership agreement
(hereinafter referred to as the "Agreement") is made effective
as of the 31st day of December, 1997 (hereinafter referred to as
the "Ninth Amendment Date"), by and between INTERSTATE GENERAL
COMPANY, L.P., a limited partnership duly organized and existing
under the laws of the State of Delaware (hereinafter referred to
as "IGC"), and EQUUS GAMING COMPANY L.P., a limited partnership
organized and existing under the laws of the Commonwealth of
Virginia (hereinafter referred to as "Equus") and constitutes a
restatement of the Deed of Constitution of Special Partnership
executed by certain of said parties as of the 14th day of
February, 1989, including any amendments thereof (hereinafter
referred to as the "Deed").
WHEREAS
As of February 14, 1989, Interstate General Properties
Limited Partnership S.E., a limited partnership duly organized
and existing under the laws of the State of Maryland
(hereinafter referred to as "IGP") and SUPRA AND COMPANY S.E.,
a special partnership organized and existing under the laws of
the Commonwealth of Puerto Rico (hereinafter referred to as
"SUPRA"), executed a Deed of Constitution of Special Partnership
whereby they formed a special partnership (hereinafter the
"Partnership") for the purpose of conducting the business of
land development in general, building and sale of residential
and/or commercial properties, the ownership of a race track, and
the leasing of buildings and structures.
As of April 15, 1992, IGP, SUPRA and Interstate Business
Corporation, a corporation organized and existing under the laws
of the State of Delaware (hereinafter referred to as "IBC")
subscribed a "Second Amended and Restated Partnership Agreement"
whereby IBC was admitted to the Partnership with a thirty-one
percent (31%) ownership interest as of September 30, 1991.
As of December 15, 1993, IGP, SUPRA, IBC and HDA MANAGEMENT
CORPORATION, a corporation organized and existing under the laws
of the State of Delaware (hereinafter referred to as "HDAMC")
subscribed a "Third Amended and Restated Partnership Agreement"
whereby HDAMC was admitted to the Partnership with a one-percent
(1%) interest.
On July 21, 1994, the Puerto Rico Racing Board approved
HDAMC's acquisition of a fifteen percent (15%) interest. As of
that date, IGP, SUPRA, IBC, and HDAMC subscribed a "Fourth
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Amended and Restated Partnership Agreement" whereby HDAMC's
interest became fifteen percent (15%).
As of August 1, 1994, IGP, SUPRA, HDAMC and Equus
subscribed a "Fifth Amended and Restated Partnership Agreement"
whereby IBC transferred its entire ownership interest in the
Partnership to Equus, IGP transferred a forty and sixty-five one
hundredths percent (40.65%) interest in the profits (but not its
interest in the capital) of the Partnership to Equus, IBC
withdrew from the Partnership, Equus was admitted to the
Partnership, and Equus was designated a Managing Partner.
As of March 8, 1995, IGP, Supra, HDAMC and Equus subscribed
a "Sixth Amended and Restated Partnership Agreement" whereby
HDAMC transferred to Equus its entire Fifteen percent (15%)
Profits Interest (as that term is defined in the Sixth Amended
and Restated Partnership Agreement) and a portion of its Capital
Interest (as that term is defined in the Sixth Amended and
Restated Partnership Agreement) and IGP was designated a
Managing Partner.
On February 7, 1996, IGP, SUPRA, and Equus subscribed a
"Seventh Amended and Restated Partnership Agreement" whereby
HDAMC transferred its entire ownership interest in the
Partnership to Equus, IGP transferred all of its interest except
for one percent of the total profits and capital of the
Partnership to Equus, and HDAMC resigned as a Managing Partner
and withdrew from the Partnership.
On August 19, 1997, Equus and IGP subscribed an "Eighth
Amended and Restated Partnership Agreement" whereby the
Partnership redeemed SUPRA's Partnership interest and SUPRA
withdrew from the Partnership.
On December 16, 1997, Equus purchased from IGP a
0.20990099% interest in HDA. On December 30, 1997: (i) IGP
transferred its remaining 0.99009901% interest in HDA to IGC;
(ii) IGP resigned as Managing Partner; (iii) IGP withdrew from
the Partnership and (iv) IGC was admitted to the Partnership
with a 0.99009901% interest. On the Ninth Amendment Date: (1)
Equus distributed an interest in HDA to IGC in complete
redemption of IGC's general partner interest in Equus, pursuant
to an Agreement to Retire Partnership Interest of Interstate
General Company, L.P. in Equus Gaming Company, L.P. (hereinafter
the "Redemption Agreement"); (2) Equus contributed its entire
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remaining interest in HDA to Equus Entertainment Corporation
("EEC"); (3) EEC was admitted to the Partnership with a 99%
interest and was designated a Managing Partner (as that term is
defined in Section 6); (4) Equus resigned as a Managing Partner
and withdrew from the Partnership; (5) IGC was admitted to the
Partnership with a 1% interest; and (6) Equus and the Managing
Partner consented to the above-described transfers.
Now EEC and IGC (collectively the "Partners" and
individually a "Partner") desire to amend the Eighth Amended and
Restated Partnership Agreement and to set forth the rights and
obligations of the Partners in connection with the Partnership,
their participation in any profits or liabilities derived
therefrom, and their participation in any loss that may arise
from such venture. Accordingly, the Partners agree herein as
follows:
One: Constitution of Partnership. The Partners hereby
associate themselves as a partnership under the laws of the
Commonwealth of Puerto Rico and have elected to be treated as a
Special Partnership in accordance with the provisions of the
Puerto Rico Income Tax Act of 1954, as amended (the "ITA") and
Act Number 3 of September 27, 1985, amending Article 1589 of the
Civil Code of Puerto Rico, for the purpose of engaging in the
business of land development in general, the building and sale
of residential and/or commercial properties, owning of a race
track, leasing of buildings and structures, and performing any
and all acts and services necessary or desirable in connection
with the foregoing, including but not limited to the purchase,
lease or otherwise the acquisition and use of real or personal
property, entering into, making, performing and carrying out of
contracts, borrowing money for the purposes of the Partnership
and securing any such borrowing through the issuance of required
loan documents, collateral agreements, securities and other
guarantees proper or necessary to secure repayment thereof, and
in general to do and perform any and all acts authorized to be
done by partnerships under the laws of the Commonwealth of
Puerto Rico.
Two: Name and Principal Office of Partnership. The name
of the Partnership shall be HOUSING DEVELOPMENT ASSOCIATES S.E.,
and the principal offices of the Partnership shall be located at
650 ▇▇▇▇▇ ▇▇▇▇▇▇ Avenue, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇
▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇; postal address shall be G.P.O. ▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, which location may be
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changed by the Managing Partner of the Partnership from time to
time.
Three: Term of Partnership. The term of the Partnership
shall commence as of the date of execution of the Deed and shall
continue for a period of 50 years from the date thereof, unless
sooner terminated as provided in Section 22 hereof (except as
otherwise provided, references to "Section" shall refer to
Sections of this Agreement), and may be extended and continued
for such additional periods as the Partners may agree.
Four: [Reserved]
Five: Limited Purpose. The relationship between the
Partners shall be limited to the performance of the specific
purposes and objectives of the Partnership as set forth in this
Agreement. Nothing herein shall be construed to create a
general purpose partnership between the Partners; nor to
authorize any Partner to act as general agent for any other; nor
to confirm or grant to any Partner any proprietary interest in,
or to subject any Partner to any liabilities for or in respect
of, the business, assets, profits or obligations of any other
Partner, except only to the extent and for the business
contemplated by this Agreement.
Six: Management of the Partnership. The business and
affairs of the Partnership shall be supervised and controlled
exclusively by the managing partner, EEC (the "Managing
Partner"). The Managing Partner has exclusive authority to
manage the Partnership, including to retain other persons to
perform services for the Partnership. In furtherance of and
subject to the foregoing, the Managing Partner shall have the
power and authority to act on behalf of the Partnership in all
acts and contracts, and, among others, to apply for and obtain
loans, to approve the execution of contracts, execution of
deeds, granting of mortgages over its real and personal
properties and acquisition of assets and real property deemed by
it necessary or convenient for its business, either by lease or
outright purchase, to apply for and obtain any required license,
permit or governmental authorization, and to perform any other
act which the Partnership is authorized to do pursuant to the
terms hereof as well as under the laws of the Commonwealth of
Puerto Rico. Without the approval or authorization of the
Managing Partner, no party (including no Partner) may act on
behalf of the Partnership and no Partner shall be considered to
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be the agent of another. Notwithstanding the foregoing, the
Managing Partner may appoint officers of the Partnership and
delegate to such officers such powers, duties and authority as
it shall deem appropriate. The actions of the Managing Partner
require no ratification by any other Partners. The Managing
Partner shall be the agent of the Partnership for the conduct of
the Partnership's business. The Partnership shall reimburse the
Managing Partner for all reasonable out-of-pocket expenses
incurred by the Managing Partner in connection with management
of the Partnership, including reasonable directors' fees for
directors who are not then existing officers or employees of the
Partnership or any Managing Partner, and the reasonable cost of
directors' and officers' liability insurance.
Seven: Percentage Partnership Interests. The Percentage
Partnership Interest of EEC and IGC shall be, respectively,
Ninety Nine percent (99%) and One (1%).
Eight: [Reserved]
Nine: Appointment of Manager. The Managing Partner shall
have authority to appoint and employ such managers, employees,
consultants and agents for the Partnership, as it shall deem
appropriate, and may delegate to such managers, employees,
consultants and agents any and all offices, powers and authority
hereunder.
Ten: Limited Responsibility. The Partners shall not be
personally liable for the debts, liabilities or obligations of
the Partnership. Each Partner's liability and obligations with
regards to the Partnership, shall be limited to the capital
contribution actually made by such Partner to the Partnership.
Eleven: Books and records. The Partnership shall maintain
at its principal office full and proper records and books of
account based upon generally accepted accounting principles,
consistently applied. The fiscal year of the Partnership shall
be the calendar year, or such other fiscal year as shall be
determined by the Managing Partner and permitted by law.
Twelve: Inspection of Books, Appointment of Accountants.
Each of the Partners shall have the right at all reasonable
times to have any and all of the Partnership's records and books
of account inspected at its own expense by its own employees,
attorneys or accountants.
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The Managing Partner shall at all times name and appoint
such independent nationally recognized accounting and auditing
firm (the "Partnership Accountants") as in its sole discretion
shall be determined.
Thirteen: Bank Account. The Partnership shall maintain
such bank accounts as shall be approved by the Managing Partner.
The Managing Partner shall determine the individuals
authorized to draw checks against the Partnership bank accounts.
Such drawings shall require not less than two (2) signatures.
Fourteen: Profits, Losses, and Tax Allocations.
(a) The net income or net loss, respectively, for
federal and Puerto Rico tax purposes shall be determined
annually by the Partnership Accountants. The Partnership
Accountants shall prepare the income tax returns for the
Partnership as soon as possible after the end of each of the
Partnership's fiscal years.
(b) For purposes of this Agreement the terms "Profits"
and "Losses" mean the income or loss of the Partnership for
"book" purposes under Treas. Reg. Sec. 1.704-1(b)(2)(iv). In
particular, and without limitation, the terms "Profits" and
"Losses" mean, for any fiscal year, the net income or net loss,
respectively, of the Partnership as reported by the Partnership
for federal income tax purposes, except that (i) items of
income, gain, loss, and deduction relating to property
contributed to the Partnership shall be computed as if the basis
of the property to the Partnership at the time of contribution
were equal to its fair market value on that date (for purposes
of this clause (i), (A) the amount of any depreciation, amorti-
zation, or other cost recovery deduction allowable for any
period with respect to property contributed to the Partnership
shall be an amount that bears the same ratio to the fair market
value of the property on the date of contribution as the federal
income tax depreciation, amortization, or other cost recovery
deduction bears to the adjusted tax basis of the property on the
date of contribution; provided, however, that if the adjusted
tax basis of the property on the date of contribution is zero,
depreciation, amortization, or other cost recovery deduction
shall be determined with reference to the fair market value of
the property on the date of contribution using any reasonable
method selected by the Managing Partner and (B) gain or loss
resulting from any disposition of such property with respect to
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which gain or loss is recognized for federal income tax purposes
shall be computed under this sentence as if such property had an
adjusted basis on the date of contribution equal to its fair
market value on such date and all subsequent adjustments were
made in accordance with subclause (A) of this clause (i)), (ii)
any income of the Partnership that is exempt from federal income
tax and not otherwise taken into account in computing Profits or
Losses shall be added to such taxable income or loss, and any
related expenses not allowed as a deduction pursuant to Section
265 of the Internal Revenue Code of 1986 (hereinafter referred
to as "Code") shall be subtracted from such taxable income or
loss, (iii) any expenditures of the Partnership described in
Code Section 705(a)(2)(B) or treated as Code Section
705(a)(2)(B) expenditures pursuant to Treas. Reg. Sec. 1.704-1(b)
and not otherwise taken into account under this Section 14(b)
shall be subtracted from such income or loss, and (iv) if there
has been an adjustment to the Partners' capital accounts
pursuant to Section 17(d) to reflect the unrealized income,
gain, loss, or deduction inherent in Partnership property: (A)
depreciation, amortization, or other cost recovery deductions
with respect to such property for each fiscal year or other
period shall equal an amount which bears the same ratio to the
fair market value of such property on the date of such
adjustment as the federal income tax depreciation, amortization,
or other cost recovery deductions for such year or other period
bears to the adjusted tax basis of such property on such date
(provided, however, that if the adjusted tax basis of the
property on the date of such adjustment is zero, depreciation,
amortization, or other cost recovery deduction shall be
determined with reference to the fair market value of the
property on the date of adjustment using any reasonable method
selected by the Managing Partner); and (B) gain or loss
resulting from any disposition of such property with respect to
which gain or loss is recognized for federal income tax purposes
shall be computed under this sentence as if such property had an
adjusted basis on the date of such adjustment equal to its fair
market value on such date and all subsequent adjustments for
depreciation, amortization, or other cost recovery deductions
were made in accordance with subclause (A) of this clause (iv).
The term "Profits" means a net positive amount and the term
"Losses" means a net negative amount for the Partnership fiscal
year determined after making the adjustments described in this
Section 14(b) and after removing any amounts of income or gain
allocated under Sections 16(a), 16(b), or 16(c) of this
Agreement.
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(c) In the event of any changes in any Partner's
Percentage Partnership Interest during the fiscal year, then for
purposes of this Agreement, the Managing Partner shall take into
account the requirements of Code Section 706(d) and shall have
the right to select any reasonable method of determining the
varying interests of the Partners during the year which is
consistent with the terms of this Agreement and which satisfies
Code Section 706(d).
(d) All items of income, gain, loss, and deduction,
and all tax preferences, depreciation, accelerated cost recovery
system deduction and investment interest and other tax items of
the Partnership for each fiscal year (collectively referred to
as "Partnership Tax Items") shall be allocated for federal tax
purposes to the Partners in accordance with this Section 14(d).
(i) Except as provided in Sections 14(d)(ii) and
(iii), Partnership Tax Items shall be allocated for tax purposes
in accordance with the allocations of Profits, Losses, or other
items under Sections 15 and 16 hereof. For purposes of the
preceding sentence, an allocation to a Partner of a share of
Profits or Losses shall be treated as an allocation to such
Partner of the same share of each Partnership Tax Item that is
taken into account in computing such Profits or Losses.
(ii) Gain or loss upon sale or other disposition of
any property contributed to the Partnership or any depreciation,
amortization, or other cost recovery deduction allowable with
respect to the basis of property contributed to the Partnership
shall be allocated for tax purposes among the contributing and
non-contributing Partners so as to take into account the
difference between the adjusted tax basis and the fair market
value of the property on the date of its contribution to the
extent permitted by Treas. Reg. Sec. 1.704-3 or such superseding
regulations as may be promulgated in accordance with Code
Section 704(c).
(iii) If there has been an adjustment to the
Partners' capital accounts pursuant to Section 17(d) to reflect
the unrealized income, gain, loss or deduction inherent in
Partnership property, then Partnership Tax Items with respect to
such property and, if necessary, other property, shall be allo-
cated to the Partners for federal income tax purposes so as to
take into account the difference between the adjusted tax basis
of such property and the value at which it is reflected in the
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Partners' capital accounts. In making allocations pursuant to
this Section 14(d), the Managing Partner is authorized to apply
any method or convention required or permitted by Code Section
704(c). Further, the Partnership shall, to the extent possible,
continue to apply Code Section 704(c) to IGC on and after the
Ninth Amendment Date in the same manner as the Partnership and
Equus previously applied Code Section 704(c) to IGC with respect
to the interest in the Partnership that IGC held indirectly
through its interest in Equus. The allocations under this
Section 14(d)(iii) are intended to comply with paragraphs
(b)(2)(iv)(f)(4) and (b)(4)(i) of Treas. Reg. Sec. 1.704-1 and
shall be interpreted consistently with such regulation to
effectuate such intent.
Fifteen: Allocation of Losses. Losses of the Partner-
ship shall be allocated among the Partners in proportion to
their Percentage Partnership Interests.
Sixteen: Special Allocations and Allocation of Profits.
Certain items of income or gain required to be allocated to a
Partner under federal income tax regulations and the Profits of
the Partnership shall be allocated to the Partners in accordance
with the provisions of this Section 16.
(a) If there is a net decrease during a Partnership fiscal
year in Partnership Minimum Gain then, to the extent required by
Treas. Reg. Sec. 1.704-2(f), each Partner shall be allocated items
of Partnership income and gain for that year (and, if necessary,
for succeeding years) equal to that Partner's share of the net
decrease in Partnership Minimum Gain (within the meaning of
Treas. Reg. Sec. 1.704-2(g)(2)). It is the intent of the Partners
that this Section 16(a) constitute a Partnership Minimum Gain
Chargeback provision under Treas. Reg. Sec. 1.704-2(f) and be
interpreted consistently with such regulation to effectuate such
intent.
(b) If there is a net decrease during a Partnership fiscal
year in Partner Nonrecourse Debt Minimum Gain then, to the
extent required by Treas. Reg. Sec. 1.704-2(i)(4), any Partner with
a share of that Partner Nonrecourse Debt Minimum Gain (as
determined under Treas. Reg. Sec. 1.704-2(i)(5)) at the beginning
of such fiscal year shall be allocated items of Partnership
income and gain for such fiscal year (and, if necessary, for
succeeding years) equal to that Partner's share of the net
decrease in the Partner Nonrecourse Debt Minimum Gain (within
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the meaning of Treas. Reg. Sec. 1.704-2(i)(4)). It is the intent
of the Partners that this Section 16(b) constitute a Partner
Nonrecourse Debt Minimum Gain chargeback provision under Treas.
Reg. Sec. 1.704-2(i)(4) and be interpreted consistently with such
regulation to effectuate such intent.
(c) If any Partner unexpectedly receives an adjustment,
allocation, or distribution of the type contemplated by Treas.
Reg. Sec. 1.704-1(b)(2)(ii)(d)(4), (5), or (6) that causes or
increases a deficit in such Partner's Adjusted Capital Account
Balance items of Partnership income and gain shall be allocated
to all such Partners in proportion to such deficits being offset
to eliminate such deficits as quickly as possible. It is the
intent of the Partners that this Section 16(c) constitute a
qualified income offset provision under Treas. Reg. Sec. 1.704-
1(b)(2)(ii)(d) and be interpreted consistently with such
regulation to effectuate such intent.
(d) Profits of the Partnership shall be allocated among
the Partners in proportion to their Percentage Partnership
Interests.
(e) For purposes of this Section 16:
(i) The term "Adjusted Capital Account Balance" means
a Partner's capital account balance (a) increased by any amount
that such Partner is obligated to restore under Treas. Reg.
Sec. 1.704-1(b)(2)(ii)(c) (including any addition thereto pursuant
to the next to last sentences of Treas. Reg. Sec. 1.704-2(g)(1) and
(i)(5) after taking into account thereunder any changes during
such fiscal year in Partnership Minimum Gain and in Partner
Nonrecourse Debt Minimum Gain) and (b) decreased by any
adjustments, allocations, and distributions specified in Treas.
Reg. Sec. 1.704-1(b)(2)(ii)(d)(4), (5), and (6) as are reasonably
expected to be made to such Partner. A distribution or
allocation will result in a Partner having a deficit Adjusted
Capital Account Balance to the extent such distribution or
allocation either will create or increase a deficit balance in
such Partner's capital account after making the adjustments
described in the preceding sentence.
(ii) The terms "Partnership Minimum Gain" and
"Partner Nonrecourse Debt Minimum Gain" shall have the meaning
set forth in Treas. Reg. 1.704-2(d) and (i)(3), respectively.
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Seventeen: Capital Accounts. Separate capital accounts
shall be maintained for each Partner. All allocations of
Partnership income, gain, Profit and Loss and all capital
contributions by and all distributions to the Partners shall be
credited or charged, as the case may be, to the separate capital
accounts of the Partners in accordance with this Section 17.
(a) The capital accounts of each Partner shall be
increased by:
(i) The amount of any cash contributed to the
Partnership by or on behalf of such Partner;
(ii) The fair market value of any property other than
cash contributed to the Partnership by or on behalf of such
Partner; and
(iii) The amount of any Profits or items of income or
gain allocated to such Partner under Section 16 of this
Agreement or to such Partner under a similar provision in a
predecessor Partnership agreement of the Partners.
(b) The capital accounts of each Partner shall be reduced
by:
(i) The amount of any cash distributed to such
Partner,
(ii) The fair market value of any property other than
cash distributed to such Partner; and
(iii) The amount of any Losses or items of deduction
or loss allocated to such Partner under Section 15 of this
Agreement or to such Partner under a similar provision in a
predecessor Partnership agreement of the Partners.
(c) If any property other than cash is distributed to a
Partner, the capital accounts of the Partners shall be adjusted
to reflect the manner in which gain or loss that has not
previously been reflected in the capital accounts would be
allocated among the Partners under Sections 15 and 16 of this
Agreement if the distributed property had been sold by the
Partnership for a price equal to its fair market value on the
date of distribution.
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(d) The Managing Partner may, upon the occurrence of one
of the events described in Section 17(d)(ii), increase or
decrease the capital accounts of the Partners in accordance with
Section 17(d)(i) to reflect a revaluation of Partnership
property.
(i) Any adjustments made under this Section 17(d)
shall reflect the manner in which the unrealized income, gain,
loss, or deduction inherent in Partnership property (to the
extent that it has not been reflected in the capital accounts
previously) would be allocated among the Partners under Sections
15 and 16 if the Partnership had sold all of its property for
its fair market value on the date of adjustment. The
adjustments described in this Section 17(d)(i) shall be based on
the fair market value of Partnership property on the date of
adjustment.
(ii) The Managing Partner may make the capital
account adjustments described in this Section 17(d) upon the
occurrence of the following events: (A) a contribution of money
or other property (other than a de minimis amount) to the
Partnership by a new or existing Partner as consideration for an
interest in the Partnership; (B) a distribution of money or
other property (other than a de minimis amount) by the
Partnership to a retiring or continuing Partner as consideration
for an interest in the Partnership; or (C) the liquidation of
the Partnership.
(iii) The adjustments described in this Section 17(d)
are intended to comply with Treas. Reg. Sec. 1.704-1(b)(2)(iv)(f)
and shall be interpreted consistently with such regulation to
effectuate such intent. See Section 14(b)(iv) for special rules
for the computation of Profits and Losses in the case of an
Adjustment under this Section 17(d).
(e) The Managing Partner shall have the authority to make
such changes in the allocations of Profits or Losses to the
Partners under Sections 15 and 16 of this Agreement, and to make
such adjustments to the capital accounts of IGP and Equus as is
necessary in order that the allocations of Profits or Losses to
IGP and Equus have substantial economic effect (or are otherwise
recognized for United States federal tax purposes) and are
consistent with the economic arrangement of the Partners. The
allocations set forth in Sections 16(a), 16(b), and 16(c), and
such part of the allocations under Section 15 that constitute
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Nonrecourse Deductions and Partner Nonrecourse Deductions
(within the meaning of Treas. Reg. Sec. 1.704-2(c) and (i)(2),
respectively), together with allocations made under similar
provisions in a predecessor Partnership agreement of the
Partners (collectively referred to as the "Regulatory
Allocations") are intended to comply with certain requirements
of the Treasury Regulations promulgated under Code Section
704(b). It is the intent of the Partners that, to the greatest
extent possible, all Regulatory Allocations shall be offset
either with other Regulatory Allocations or with special
allocations of other items of Partnership income, gain, loss, or
deduction pursuant to this Section 17(e). Therefore,
notwithstanding any other provisions of Sections 15 and 16
(other than the Regulatory Allocations), the Managing Partner
shall make such offsetting special allocations of income, gain,
loss, or deductions in whatever manner it determines appropriate
so that, after the Regulatory Allocations and such offsetting
allocations are made, each Partner's capital account balance is,
to the greatest extent possible, equal to the capital account
balance such Partner would have had if the Regulatory
Allocations were not part of the Partnership Agreement and all
Partnership items were allocated pursuant to Sections 15 and 16
(without regard to the Regulatory Allocations). In exercising
its discretion under this Section 17(e) the Managing Partner
shall take into account future Regulatory Allocations that,
although not yet made, are likely to offset other Regulatory
Allocations previously made to the extent that taking into
account such future Regulatory Allocations would not affect the
economic arrangement of the Partners. The preceding two
sentences are intended to eliminate, to the greatest extent
possible, any economic distortions which may result from
application of the Regulatory Allocations and shall be
interpreted in a manner consistent therewith.
(f) The transferee of an interest in the Partnership shall
succeed to the capital account of the transferor of such
interest to the extent it relates to the transferred interest.
Eighteen: Cash Distributions.
(a) To the extent permitted by the Annual Tax Payment
Agreement as defined in that certain indenture by and among the
Partnership, the Partnership's subsidiary, El Comandante Capital
Corp., and Banco Popular de Puerto Rico, as Trustee, dated as of
December 15, 1993, (the "Indenture", and the closing of which is
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referred to herein as the "Closing"), the Partnership shall
distribute to the Partners for each fiscal year an amount equal
to the product of (i) the Partnership's net income for such
fiscal year determined in accordance with generally accepted
accounting principles, consistently applied, and (ii) the
highest of the then applicable highest United States federal or
Puerto Rico personal or corporate income tax rate (the "Highest
Tax Rate"). Such distributions shall be made at such times as
shall be determined by the Managing Partner, provided that
within 75 days of the close of each fiscal year the Managing
Partner shall determine the maximum amount permitted to be
distributed under this Section 18(a) for such fiscal year
("Maximum Annual Amount") and shall distribute within 90 days of
the close of such fiscal year the excess of the Maximum Annual
Amount for such fiscal year over the aggregate distributions
previously made in respect of such fiscal year. Distributions
under this Section 18(a) shall be made in proportion to the
Partners' Percentage Partnership Interests.
(b) To the extent permitted by the Indenture, the
Partnership shall make cash distributions of funds (to the
extent that such funds have not been distributed under Section
18(a)) to the Partners in such amounts and at such times as
shall be determined by the Managing Partner; provided, however,
that all distributions under this Section 18(b) shall be made to
the Partners in proportion to their Percentage Partnership
Interests. In any year in which there has been a change in the
Percentage Partnership Interests of the Partners, distributions
shall be made under this Section 18(b) to reflect properly such
change.
(c) In determining the amount available under Section
18(b) for distribution to the Partners, the Managing Partner
shall take into consideration the anticipated needs of the
Partnership for working capital and future expansion, amounts
needed to pay or reserve against existing and anticipated
operating expenses and obligations, and such other factors as
the Managing Partner deems relevant, including the reserve for
contingencies.
Nineteen: [Reserved]
Twenty: Transfer of Interests.
(a) Except as provided in this Section, the Partners may
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transfer their interest in the Partnership subject to a right of
first refusal exercisable by the Partnership. The transferring
Partner is required to advise the Partnership by written notice
of the price, terms and conditions of a third-party bona fide
written offer to purchase any interest in the Partnership at
least sixty (60) days prior to the proposed transfer. Said
right of first refusal shall be exercisable by the Partnership
at the price and on the terms and conditions set forth in such
written offer and the Partnership must notify the transferring
Partner of its intention to purchase its interest in the
Partnership at least thirty (30) days prior to the proposed date
of transfer. In the case of a gratuitous transfer of an
interest in the Partnership, said right of first refusal shall
be at fair market value as determined by an independent
appraisal. Until admitted to the Partnership as a Partner, a
transferee of an interest in the Partnership pursuant to this
Section 20 shall be entitled to receive the distributions from
this Partnership to which the transferor would otherwise be
entitled but shall not become entitled to exercise any rights of
a Partner. However, in the case of any purported transfer not
permitted under any other subsection of this Section 20, the
purported transfer shall be void and the purported transferee
shall not receive any distribution. Notwithstanding any other
provision of this Section 20, a transferee of an interest in
this Partnership shall be admitted as a Partner only with the
consent of the Managing Partner, which consent may be given or
withheld in the sole and absolute discretion of the Managing
Partner. A Partner shall cease to be a Partner upon the
transfer of all of its interest in the Partnership.
(b) Unless the Managing Partner consents to the transfer,
no Partner shall transfer any interest in the Partnership to any
other person to the extent that such transfer, if effected,
would cause a termination of the Partnership for federal income
tax purposes under Code Section 708(b). Unless the Managing
Partner consents to the transfer, any attempt to transfer an
interest in the Partnership that, if effected, would cause a
termination of the Partnership is not effective to transfer the
interest in the Partnership to the purported transferee thereof
and the purported transferee shall not be entitled to any rights
as a Partner of the Partnership.
Twenty-One: Indemnification.
The Partnership shall indemnify, to fullest extent of
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Puerto Rico law, the Managing Partner and its shareholders,
partners, directors, officers, employees, and agents against
expenses (including attorneys' fees), judgments, fines, and
amounts paid in settlement actually and reasonably incurred by
any of those persons in connection with any threatened, pending,
or completed action, suit, or proceeding, whether civil,
criminal, administrative, or investigative, if such person's
actions did not constitute gross negligence, willful misconduct
or fraud.
Twenty-Two: Termination of the Partnership.
(a) The Partnership may be terminated at any time by the
mutual agreement of all the Partners.
(b) The Partnership shall be terminated if the Managing
Partner is adjudicated bankrupt or insolvent, or if an
assignment of its assets is made for the benefit of its
creditors, or if a trustee is appointed to take care of its
assets, or if a voluntary petition for relief in bankruptcy is
filed by such Managing Partner.
(c) Upon the termination of the Partnership on account of
an event described in subsection (b) above, a majority in
interest of the Partners other than such Managing Partner shall
have a right of first refusal to purchase the assets of the
Partnership at their then fair market value as determined by
independent appraisal.
Twenty-Three: Liquidation of Partnership. Upon
termination of the Partnership for any reason, the Partnership
shall continue its business solely for the purpose of winding up
its affairs and shall be liquidated as rapidly as business
judgment permits. All decisions with respect to the disposition
of the Partnership's assets, collections, or compromise of any
amounts receivable and payment or compromise of any amounts
payable by the Partnership, shall be made by the Managing
Partner. The assets of the Partnership shall be applied for the
following in the following manner:
(a) First, to the payment or provision for payment of all
debts and obligations of the Partnership to creditors, other
than the Partners, and for the expenses of winding up the
affairs of the Partnership.
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(b) Second, to the payment of all amounts payable by the
Partnership to the Partners, other than in respect to Partners'
capital accounts.
(c) Third, all remaining assets of the Partnership shall
be distributed to the Partners in accordance with the positive
balance in each Partner's capital account as adjusted under
Section 17 to reflect all Partnership operations up to and
including the liquidation.
Twenty-Four: Amendments.
(a) Except as provided in subsection (b) below, amendments
to this Agreement require the prior approval of all Partners.
(b) The Managing Partner, after thirty (30) days notice to
the Partners and subject to subsection (c) below, may amend this
Agreement, without the approval of the other Partners: (i) to
change the name of the Partnership or its registered agent or
registered office or the location of its principal registered
office; (ii) to make any change necessary or advisable in the
good faith opinion of the Managing Partner to ensure that the
Partnership will not be treated as an association taxable as a
corporation for federal income tax purposes and will remain
qualified as a special partnership under the ITA; (iii) to make
any change that is necessary or desirable to satisfy any
requirements contained in any opinion, directive, order, ruling
or regulation of any federal or state agency (including the
Puerto Rico Racing Board), compliance with which the Managing
Partner in its good faith judgment deems to be in the best
interests of the Partnership and the Partners; (iv) to make any
change that is required to bring the Partnership into compliance
with the Puerto Rico Racing Industry and Sport Act; (v) to make
any change necessary or desirable in the good faith opinion of
the Managing Partner to facilitate the public trading of
Partnership interests including changes that may be necessary to
ensure that the Partnership interests may qualify as Listed
Securities (as that term is defined in the offering memorandum
issued in connection with the Closing); (vi) to make any change
that is of an inconsequential nature and does not affect the
Partners in any material respect; and (vii) to make any other
changes similar to the foregoing.
(c) Notwithstanding the foregoing, the Managing Partner
may not amend the Partnership Agreement in any manner that would
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disproportionately and inequitably affect the interests of the
Partners without the consent of Partners holding seventy percent
(70%) of the Percentage Interests of the Partnership.
Twenty-Five: Entire Agreement. This Agreement constitutes
the entire agreement of the parties with respect to the subject
matters hereof.
Twenty-Six: Notices. Any and all notices or other
communication or deliveries required or permitted to be given
pursuant to any of the provisions of this Agreement, shall be
deemed to have been duly given for all purposes to be sent by
certified or registered mail, return receipt requested, and
postage pre-paid, hand delivered or sent by telegraph or telex
to the parties hereto at the following addresses: (a) IGP:
▇.▇. ▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇; (b) Equus:
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇; or at
such other address as any Partner may have specified by notice
given to the other Partners in accordance with this section.
The date of giving any such notice shall be the date the same is
deposited in the mail, as such date appears in the postage
cancellation affixed by the United States Postal Service.
Twenty-Seven: Waiver of Provisions. Except as provided in
Section 4, no waiver of the provisions hereof shall be effective
unless in writing and signed by the party to be charged with
such waiver and no waiver shall be deemed a continuing waiver or
waivers in respect of any subsequent breach or default, of
either a similar or different nature, unless expressly so stated
in writing.
Twenty-Eight: Separability. Should any clause, section or
part of this Agreement be held or declared to be void or illegal
for any reason, all other clauses, sections or parts of this
Agreement which can be affected without the illegal clause,
section or part, shall nevertheless continue in full force and
effect.
Twenty-Nine: Governing Law. This Agreement shall be
governed, interpreted and construed in accordance with the laws
of the Commonwealth of Puerto Rico. It is the intention of the
parties that the Partnership be governed by the provisions of
Special Partnerships of the Civil Code of Puerto Rico. The
Partnership shall file with the Secretary of the Treasury of
the Commonwealth of Puerto Rico its option to have the Part-
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nership operate as a Special Partnership under the provisions of
Act Number 8 of July 1985, as may be amended from time to time.
Thirty: Jurisdiction of Courts. Each of the parties
hereto consents to the jurisdiction of the Courts of the Common-
wealth of Puerto Rico, with respect to any matter arising under
this Agreement, and shall subject itself to the jurisdiction of
such Courts and agrees that service of process upon it, may be
made in any matter permitted by the laws of the Commonwealth of
Puerto Rico.
Thirty-One: Successors. This Agreement and the various
rights and obligations arising hereunder shall inure to the
benefit of and be binding upon the parties hereto and their
respective successors and assigns.
Thirty-Two: Headings. The headings or captions under
sections of this Agreement are for convenience and reference
only and do not in any way modify or interpret or construe the
intent of the parties to affect any of the provisions of this
Agreement.
Thirty-Three: Certain Terms. The use of the term Partner
in this document shall be understood to include and mean the
singular and/or plural as the identity of the parties or the
situation so requires.
IN WITNESS WHEREOF, the undersigned have hereunto set their hands
as of the date and year first above written.
EQUUS ENTERTAINMENT CORPORATION
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Vice President
INTERSTATE GENERAL COMPANY L.P.
By: INTERSTATE GENERAL MANAGEMENT CORPORATION
Its Managing General Partner
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Executive Vice President
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Ratified the Ninth Amended and Restated Partnership Agreement of
Housing Development Associates S.E. dated December 31, 1997 by the
Undersigned.
EQUUS ENTERTAINMENT CORPORATION
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Vice President
INTERSTATE GENERAL COMPANY L.P.
By: INTERSTATE GENERAL MANAGEMENT CORPORATION
Its Managing General Partner
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Executive Vice President
Affidavit No. 1529
Subscribed before me by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, of legal age, married
and resident of San ▇▇▇▇, Puerto Rico, in his capacity as Executive
Vice President of Interstate General Management Corporation, the
Managing General Partner of Interstate General Company L.P., the
Managing General Partner of Interstate General Properties Limited
Partnership S.E., President of Equus Management Company, the Managing
General Partner of Equus Gaming Company L.P., to me personally known.
In San ▇▇▇▇, Puerto Rico, this 20th day of February, 1998.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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NOTARY PUBLIC