EXHIBIT 10.5
PARTNERSHIP AGREEMENT
GLENBRIAR JOINT VENTURE
THIS AGREEMENT is made and entered into as of the 1st day of
January, 1994, by and between GIC Investment Corporation, a California
corporation ("GIC") whose address is ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and Westco
Community Builders, Inc., a California corporation ("WCB"), whose
address is ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
together referred to herein as the "Partners."
In consideration of the premises and mutual covenants
contained herein, the parties hereto agree to the terms, covenants
and conditions as hereinafter set forth.
SECTION 1
ORGANIZATION OF THE PARTNERSHIP
1.1 FORMATION . The parties hereto hereby form a joint venture
general partnership pursuant to the terms and conditions of this
Agreement for the purpose of owning, subdividing and developing a
tract of land comprising approximately 105 acres located in Tracy,
California known as the Glenbriar project (the "Property").
1.2 NAME. The name of this Partnership shall be the
"Glenbriar Joint Venture."
1.3 PLACE OF BUSINESS. The principal place of business of this
Venture shall be located at the offices of WCB in San Leandro,
California until changed by designation of the partners.
1.4 PURPOSE.
1.4.1 The purpose of this Venture shall be to acquire,
subdivide, own, and develop lots on the Property and conduct
related activities. The Partners expressly agree that the Venture
is formed solely to conduct this single business and that any
expansion of the business of the Venture shall require consent of
the Partners.
1.4.2 Except as otherwise expressly and specifically
provided herein, no Partner shall have any authority to bind or act
for, or assume any obligations or responsibility on behalf of, the
other Partner. This Agreement shall not be deemed to create a
partnership between the Partners with respect to any activities
whatsoever other than those activities within the scope and
business purposes of the Venture as set forth in Section 1.4.1
above.
1.5 TERM. The Venture shall commence as of the date of this
Agreement and shall continue until the Venture shall be dissolved
and terminated in accordance with the provisions of applicable law
or Section 9.1 hereof.
1.6 COMPLIANCE WITH LAW. The Partners shall execute and cause
to be filed and published a Fictitious Business Name Statement as
required by the California Business and Professions Code. From time
to time, thereafter, the Partners shall do or cause to be done all
such filings, recordings, publishings and other acts, as may be
necessary or appropriate to comply with all requirements for the
operation of a general partnership pursuant to the laws of the
State of California and of all other jurisdictions wherein the
Venture shall conduct its business.
SECTION 2
DEFINITIONS
As used herein, each of the following terms shall have the
meaning assigned to it
below:
2.1 "Adjusted Invested Capital." The Capital Contribution
of a Partner reduced by any Distributions.
2.2 "Affiliate." (i) any person or entity directly or
indirectly controlling, controlled by, or under common control with
the other person or entity; (ii) any person or entity who directly
or indirectly owns, controls, or holds the power to vote 10% or
more of the outstanding voting securities of the other person or
entity; (iii) any person or entity who has directly or indirectly
10% or more of its outstanding voting shares, owned, controlled or
held with power to vote by the other person or entity; (iv) any
officer, director or partner of the other person; and (v) if the
other person is an officer, director or partner, any company for
which the person acts in any such capacity.
2.3 "Assign One to whom a Partner has assigned all or part
of its Interest in the Venture pursuant to the terms of Section 7
of this Agreement.
2.4 "Assignor." A Partner who assigns all or part of its
Interest in the Venture pursuant to the terms of Section 7 of
this Agreement.
2.5 "Bankruptcy." Whenever a petition (whether voluntary or
involuntary) in bankruptcy has been filed with respect to a Partner
and remains in effect, without being dismissed or stayed, for a
period of not less than 60 days.
2.6 "Capital Account." An account established and maintained
for each Partner, which initially will reflect the amount of its
Capital Contribution and will from time to time be adjusted in
accordance with the provisions of Section 3.3 of this Agreement.
2.7 "Capital Contribution. " Cash, property or services
contributed by a Partner to Venture capital.
2.8 "Code." The Internal Revenue Code of 1986, as
amended.
2.9 "Distribution. "An amount of cash or property
distributed to a partner on account of the Partner's interest in
the Venture.
2. 10 "Intangible Property. " All the personal property
described in the Assignment and Assumption Agreement dated November
23, 1993 by and between WCB and Homestead Land Development
Corporation which was delivered as part of WCB's purchase of the
Property.
2.11 "Interest . " The interest of a Partner in the profits,
losses, capital, distributions and assets of the Venture. "
2.12 "Net Cash Flow." Cash revenues from operations and other
investments of the Venture (including proceeds of sales or
refinancings, exchange, condemnation or other disposition of
Venture property) less the payment of operation costs and expenses
of the Property and mortgage and other loans of the Venture and the
retention of a reasonable reserve for costs of operations and
working capital, but not non-cash expenditures such as cost
recovery, depreciation or amortization of expenses.
2.13 "Notice . " A communication given in writing and
delivered personally or mailed as provided in Section 10.3.
2.14 "Override Preferred Return." An amount equal to a forty
percent (40%) cumulative but not compounded yield on Adjusted
Invested Capital, which is inclusive of the Preferred Return.
2.15 "Partners." All the General Partners of the Venture.
2.16 "Preferred Return." An amount equal to a twelve percent
(12%) per annum cumulative but not compounded yield on Adjusted
Invested Capital.
2.17 "Profits" and "Losses" means, for each fiscal year or
other period, an amount equal to the Venture's taxable income or
loss for such year or period, determined in accordance with Code
Section 703(a) (for this purpose, all items of income, gain, loss
or deduction required to be stated separately pursuant to Code
Section 703(a)(1) shall be included in taxable income or loss).
2.18 "Property". That tract of land consisting of
approximately 105 acres located at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ more particularly described in Exhibit A.
2.19 "Regulations" means the Income Tax Regulations
promulgated under the Code, as such regulations may be amended from
time to time (including corresponding provisions of succeeding
regulations).
2.20 "Service ." The Internal Revenue Service.
2.21 "Venture." The joint venture partnership formed
pursuant to this Agreement.
SECTION 3
CAPITAL CONTRIBUTIONS; CAPITAL ACCOUNTS
3.1 CAPITAL CONTRIBUTIONS OF THE PARTNERS.
3. 1. 1 WCB shall contribute to the Venture (i) title
to the Property, (ii) title to all the Intangible Property,
subject to accrued but unpaid costs and expenses relating
to these assets as of the date of contribution which shall not
exceed $25,000.00. The parties agree that the WCB shall receive a
capital account credit of $463,988.31 upon making such
contribution, provided, however, that the parties agree that
WCB's capital shall be adjusted if necessary to equal its
investment in the Property and the Intangible Property. WCB
shall be entitled to receive from capital contributed by GIC the
sum of $347,991.23 (75 % of the agreed contribution). Thereafter,
WCB shall contribute 25 % of all capital required by the
Venture, to a maximum of $375,000.00.
3.1.2 GIC shall initially contribute the sum of
$347,991.23 and shall be required to contribute 75 % of all capital
required by the Venture, to a maximum of $1,125,000. 00.
3.1.3 The Partners shall be required to contribute
additional capital to the Venture in such amounts as the Partners
may determine by mutual agreement.
3.2 PARTNERSHIP INTERESTS. In return for their Capital
Contributions, and subject to all the provisions of this Agreement,
the Partners shall have the following Interests in the Venture:
GIC: 75 %
WCB: 25 %
3.3 CAPITAL ACCOUNTS. A Capital Account shall be established
and maintained for each Partner, which initially shall reflect the
amount of its Capital Contribution, and shall from time to time be
(i) increased by its distributive share of profits of the Venture,
and (ii) decreased by an amount equal to the distributions made by
the Venture to it and its allocable share of losses of the Venture.
Except as otherwise expressly provided in this Agreement, no
Partner shall be permitted to make any withdrawals from or in
respect to its Capital Account.
3.4 INTEREST AND RIGHT TO PROPERTY. No interest shall be paid
on or in respect to any Capital Contribution by any Partner, and
except as is expressly provided herein no Partner shall have the
right to demand and receive cash or other property in return for
its Capital Contribution. The Partners agree that WCB shall
contribute legal title to the Property to the Venture, but that
they may mutually agree to hold the Property as tenants in common
in lieu of in the name of the Venture or by one of the Partners for
the benefit of the Venture.
3.5 BORROWINGS. If the Partners mutually determine that the
Venture requires the use of additional funds which cannot, in the
opinion of the Partners, be obtained on terms more advantageous to
the Venture than by borrowing such funds from third parties, the
Partners and/or their Affiliates, may, from time to time loan such
funds to the Venture in such amounts and on such terms as the
Partners agree are necessary to pay all costs relating to the
business of the Venture. No such loan shall be deemed to constitute
an increase in the Capital Account or Capital Contribution of the
Partners nor shall the making of any such loan entitle the Partners
to any increases in their share of profits of the Venture.
Repayment of any such loans, together with interest thereon, shall
be required before any Distributions are made to a Partner on
account of the Partner's Interest in the Venture.
SECTION 4
INTEREST OF PARTNERS IN DISTRIBUTIONS
4.1 DISTRIBUTION OF NET CASH FLOW. Distributions of Net
Cash Flow in each year shall be made as follows:
4.1.1 First, to the Partners until the Partners have
cumulatively received Distributions in an amount equal to their
Capital Contributions (such Distributions to be in proportion to
the unrecovered Capital Contributions as of the date of the
Distribution);
4.1.2 Next, to the Partners until they have received
Distributions equal to their cumulative Preferred Return (such
Distributions to be in proportion to the unrecovered Preferred
Return as of the date of the Distribution);
4.1.3 Next, 60% to GIC and 40% to WCB until GIC has
received Distributions equal to its cumulative Override Preferred
Return; and
4.1.4 Thereafter, 40% to GIC and 60% to WCB.
SECTION 5
ALLOCATION TO PARTNERS OF PROFITS AND LOSSES;
OTHER INCOME TAX MATTERS
5.1 PROFITS. Except as provided in Sections 5.3, 5.4
and 5.5 hereof, Profits for any fiscal year shall be allocated in
the following order and priority:
5. 1. 1 First, to the Partners until the cumulative
Profits allocated to each pursuant to this Section 5. 1. 1 are
equal to the cumulative Losses allocated pursuant to Section 5.2.2
hereof for all prior periods;
5.1.2 Next, to the Partners in the amount of any
accrued but undistributed Preferred Return allocable to their
Capital Contributions;
5.1.3 Next, 60% to GIC and 40% to WBC until the
cumulative amount of profits allocated to GIC pursuant to Sections
5.1.2 and 5.1.3 equals any accrued but undistributed Override
Preferred Return allocable to.GIC;
5.1.4 The balance, if any, 40% to GIC and 60% to
WCB.
5.2 LOSSES. Except as provided in Sections 5.3 and
5.4 hereof, Losses for any fiscal year shall be allocated in the
following order and priority:
5.2.1 To the extent Profits have been allocated
pursuant to Sections 5.1.4, 5.1.3 or 5.1.2 hereof for any prior
year, Losses shall be allocated first to offset any Profits
allocated pursuant to Section 5.1.4 prorata among the Partners in
proportion to their shares of the Profits being offset, then
likewise with respect to allocations pursuant to Section 5.1.3
and then with respect to Section 5.1.2; and
5.2.2 Thereafter, Losses shall be allocated 75% to
GIC and 25% to WCB.
5.3 REGULATORY ALLOCATIONS.
5.3.1 Minimum Gain Chargeback Notwithstanding anything
herein to the contrary, if there is a net decrease in the Venture's
"Minimum Gain" during a Venture's taxable year as determined under
Regulations Section 1.704-1(b)(4)(f), all Partners with deficit
Capital Account balances at the end of such year shall be allocated
income and gain for such year (and if necessary, in subsequent
years) in the amount and in the proportions needed to eliminate
such deficits as quickly as possible. Such allocations shall
consist of the items of income and gain described in Regulations
Section 1.704-1(b)(4)(e).
5.3.2 Section 734(b) or 743(b) Adjustments. To the "tent
an adjustment to the adjusted tax basis of any Venture asset
pursuant to Code Section 734(b) or Code Section 743(b) is required,
pursuant to Regulations Section 1.704-1(b)(2)(iv)(m), to be taken
into account in determining Capital Accounts, the amount of such
adjustment to the Capital Accounts shall be treated as an item of
gain (if the adjustments increases the basis of the asset) or loss
(if the adjustment decreases such basis) and such gain or loss
shall be specially allocated to the Partners in a manner consistent
with the manner in which their Capital Accounts are required to be
adjusted pursuant to such Section of the Regulations.
5.3.3 Intent of Allocations. The allocations set forth in
Section 5.3 hereof (the "Regulatory Allocations) are intended to
comply with certain requirements of Regulations Section 1. 704-1
(b). The Regulatory Allocations may not be consistent with the
manner in which the Partners intend to divide Venture
distributions. Accordingly, the Partners shall divide other
allocations of Profits, Losses and other items among the Partners
so as to prevent the Regulatory Allocations from distorting the
manner in which Venture distributions will be divided among the
Partners pursuant to Section 4.1 hereof. In general, the Partners
anticipate that this will be accomplished by specially allocating
other Profits, Losses and items of income, gain, loss and deduction
among the Partners so that the net amount of the Regulatory
Allocations and such special allocations to each such Person is
zero.
5.4 DETERMINATION OF INCOME AND LOSS. At the end of each
fiscal year of the Venture, or at such other time as the Partners
shall deem necessary or appropriate, each item of income, expense,
gain, loss and deduction of the Venture shall be determined for the
period then ending and shall be allocated to the Capital Account of
each Partner in accordance with the provisions hereof. in
determining the Distributions of Net Cash Flow for purposes of
allocating Profits in each Venture fiscal year, the Net Cash Flow
available for distribution at each fiscal year end which is
distributed by the Venture within seventy-five (75) days thereafter
shall be deemed allocated to the Partners in said prior fiscal
year.
5.5 TAX MATTERS PARTNER. The Tax Matters Partner ("TMP") for
the Venture shall be GIC. The TMP shall employ experienced tax
counsel to represent the Venture in connection with any tax audit
or investigation of the Venture and in connection with all
subsequent administrative and judicial proceedings arising out of
such audit. The fees and expenses of such counsel shall be a
Venture expense and shall be paid by the Venture. Such counsel
shall be responsible for representing the Venture; it shall be the
responsibility of the Partners, at their expense, to employ tax
counsel to represent their respective separate interests. All
expenses incurred by the TMP in serving as the TMP shall be Venture
expenses and shall be paid by the Venture.
SECTION 6
MANAGEMENT OF THE VENTURE BUSINESS
6.1 THE PARTNERS RIGHTS GENERALLY Except as expressly provided
herein, the Partners shall be jointly responsible for the
management of the Venture business and property. Subject to the
provisions of Section 6.2 hereof, WBC shall have primary day-to-day
responsibility for managing the Venture business and shall render
such services required in connection with the management of the
Venture business and properties as the Partners shall mutually
agree.
6.2 MANAGEMENT POWER. Except as otherwise expressly provided
herein, the Partners shall have equal power and authority to make
all decisions relating to the management and control of the Venture
business and properties; provided, however , that unanimous
agreement of the Partners shall be required to:
6.2.1 expend any of the Venture's capital and profits in
furtherance of the Venture's business;
6.2.2 sell, pledge, hypothecate, dispose of, trade,
exchange, quitclaim, surrender or release Venture properties or
interests therein;
6.2.3 loan money to the Venture or borrow money from
third Persons for, in the name of and on behalf of the Venture;
provided, however, that it shall be solely the decision of GIC
whether the Venture shall exercise rights to borrow funds which are
set forth in a letter from ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ to ▇▇▇▇▇ ▇▇▇▇▇ dated
November 24, 1993 relating to a stand-by loan commitment, a copy of
which is attached hereto as Exhibit B;
6.2.4 adjust, compromise, settle or refer to arbitration
any claim in favor of or against the Venture, and institute,
prosecute and defend any legal action or proceeding or any
arbitration proceeding;
6.2.5 purchase any goods or equipment other than ordinary
business supplies intended for routine office use.
6.3 MANAGEMENT FEES. REIMBURSEMENT AND PAYMENT OF COSTS.
6.3.1 The Venture shall pay to WBC a management fee of
$60,000.00 for services rendered as project manager. This fee shall
be payable at the rate of $5,000.00 per month for the first 12
months of the term of the Venture commencing January 1, 1994.
6.3.2 The Venture shall directly pay or shall reimburse
the Partners and their Affiliates for the actual costs of goods and
materials used for or by the Venture, excluding any indirect
expenses incurred in performing their services for the Venture,
such as salaries or similar compensation, general office rent,
utilities or other general overhead items not directly allocable to
the Venture's business.
6.4 AUTHORITY. The Partners shall have the power to execute,
deliver, perform and accept on behalf of the Venture any document,
instrument or agreement incident to the Venture's business and in
furtherance of its purposes, and any such document, instrument or
agreement shall be deemed executed, delivered, performed and
accepted, as the case may be, by the Venture. No Person shall be
required to determine the Partners' authority to engage in any act
or undertaking on behalf of the Venture; and third parties dealing
with the Venture may rely conclusively upon the power and authority
of the Partners to act as set forth herein and shall not be
required to inquire into or ascertain the authority of the Partners
to so act.
6.5 NONEXCLUSIVITY. Each Partner shall devote to the affairs
of the Venture so much time as it, in its sole discretion, deems
necessary or advisable to properly carry on the Venture's business
and to perform its duties as a Partner hereunder; provided,
however, that no Partner shall be required to devote full time and
attention to the Venture or to its business. Any Partner may,
independently or with others, engage in or possess an interest in
any business venture involved in the ownership, construction,
financing, leasing, operation and management of real property and
interests therein; and neither the Venture nor any of the Partners
as such shall have the right, by virtue of this Agreement or the
relationship created hereby, to participate in any such venture or
in the income, profits or losses derived therefrom. The fact that
a Partner or any Affiliate of that Partner is employed by, or is
directly or indirectly interested in or connected with, any person
with whom the Venture transacts business shall not prohibit the
Partners from dealing with that person, and neither the Venture nor
any Partners shall have any rights in or with respect to that
person or to any income, profits or losses derived therefrom.
SECTION 7
ADDITIONAL PARTNERS; WITHDRAWAL OF PARTNERS;
TRANSFER OF PARTNERSHIP INTERESTS;
SUBSTITUTED PARTNERS: AND ASSIGNMENT
7.1 ADDITIONAL PARTNERS. Except as otherwise expressly
provided herein, no one shall be admitted to the Venture as a
partner without the unanimous written consent of all the Partners.
7.2 WITHDRAWAL OF PARTNERS. Except as otherwise expressly
provided herein, no Partner may voluntarily retire or withdraw from
the Venture without the prior written consent of the remaining
Partners.
7.3 TRANSFER OR SALE OF PARTNERSHIP INTERESTS.
7.3.1 Right of Refusal: Procedure. If any Partner wishes
to sell, exchange, gift or otherwise voluntarily transfer its
Venture Interest or property or any part thereof (the "Offered
Interest"), that Partner (the "Electing Partner"), or its
authorized representative, shall give written notice (the "Offering
Notice") to the other Partner (the Non-electing Partner) prior to
such sale, exchange or transfer. The price and all material
financial and other terms of purchase of the Offered Interest shall
be the same as described in the Offering Notice. Unless otherwise
expressly stated, the terms shall be delivery of the entire Offered
Interest free and clear of liens or encumbrances (but subject to
liens and encumbrances affecting the Property) in consideration for
cash at closing.
7.3.2 Exercise of Option and Closing of Purchase. The
Non-electing Partner shall have ninety (90) days from the effective
date of the Offering Notice within which to give notice to the
Electing Partner of its election to purchase the Offered Interest.
Purchase of the Offered Interest shall be thereafter completed
within thirty (30) days after notice of the Nonelecting Partner's
exercise of its election.
7.3.3 Nonexercise of Option. If the Nonelecting Partner
does not elect to purchase the interest of the Electing Partner the
Partner who wishes to transfer its Offered Interest thereafter may
transfer the Offered Interest to any person, provided that such
transfer is accomplished within ninety (90) days thereafter on the
same terms and conditions as described in the Offering Notice and
the transferee agrees in writing to be fully bound by each and
every term of this Agreement.
7.3.4 Permitted Transfers with Consent . Notwithstanding
any of the above, upon the prior written consent of the other
Partner each Partner may transfer or assign all or any part its
Venture Interest. The Partners may, in their sole discretion,
withhold their consent to the assignment or transfer of all or any
part of the Venture Interest of a Partner. Any such transfer to
which the Partners shall consent shall be effective as of the first
day of the month in which the transfer was made. Notwithstanding
the foregoing, the disposing Partner shall remain responsible for
its obligations to the Venture unless and until the transferee or
assignee of that Partner is admitted to the Venture as a
Substituted Partner as provided in Section 7.5 hereof.
7.3.5 Transfers in Violation of Agreement . If a Partner
at any time attempts to sell, assign, transfer, pledge,
hypothecate, grant a security interest in, encumber or otherwise
dispose of all or any part of its Venture Interest in violation of
the provisions of this Agreement, no purchaser, assignee,
transferee, pledgee, lender or holder of the security interest or
encumbrance with respect thereto shall be deemed a Substituted
Partner, and the Venture, the other Partners, or any of them,
shall, in addition to all other rights and remedies which they may
have at law, in equity or under the provisions of this Agreement,
be entitled to a decree or order restraining and enjoining such
attempted sale, assignment, transfer, pledge,hypothecation, grant
or security interest, encumbrance or other disposition, and the
transferor shall not be entitled to plead in defense thereto that
there would be an adequate remedy at law, it being recognized and
agreed that the injury and damage resulting from such breach would
be impossible to measure monetarily.
7.4 RETIREMENT, WITHDRAWAL, BANKRUPTCY OR DISSOLUTION OF A
PARTNER.
7.4.1 On the retirement, withdrawal, Bankruptcy, or
dissolution of a Partner, the remaining Partner shall have the
option to purchase the Venture Interest of the former Partner from
that Partner's representative or successor-in-interest, in which
event the value of said interest shall be determined by appraisal.
7.4.2 Within sixty (60) days from the date of notice to
the remaining Partner of the event giving rise to such right, the
purchasing partner shall give the retiring Partner, its
representative or successor-in-interest notice of its election to
purchase the Venture Interest and shall designate an appraiser to
conduct the appraisal. The retiring Partner or its representative
or successor-in-interest must within fifteen (15) days of receipt
of remaining Partner's notice notify the remaining Partner in
writing that he has either (i) elected to accept the appraiser
selected or (ii) appoint an appraiser and the two (2) appraisers so
selected shall then select an additional appraiser similarly
qualified. Failure of the departing Partner or its
successor-in-interest to select an appraiser within said period
shall constitute acceptance of the appraiser designated by the
remaining Partner.
7.4.3 Said appraiser or appraisers shall make an
independent appraisal of the assets and liabilities of the Venture
and the concurring opinion of two of said appraisers shall
determine the net worth on a fair market value basis of the
Venture. Good will shall be valued at one dollar ($I). If none of
the appraisers concur, then the value which is neither the highest
nor the lowest shall be the net worth of the Venture. Appraisal
shall be completed within fortyfive (45) days of the date that all
appraisers are appointed.
7.4.4 The value of the interest to be purchased shall be
determined by taking the net worth of the Venture and then
determining the amount of the resulting net worth would be
distributed to the departing Partner under Section 9.2 if the
Venture were to liquidate as of the date of the valuation.
7.4.5 Unless buyer(s) and seller(s) agree otherwise, the
purchase price of said interest shall be paid in full within
thirty-six (36) months from the time appraisal is completed and the
principal shall bear interest at the then prime rate published by
Bank of America at its San Francisco office, payable not less
frequently than quarterly. The obligation created thereby shall be
secured by the selling Partner's interest in the Venture.
7.5 SUBSTITUTED PARTNERS. Anything herein to the contrary
notwithstanding, no successor-in-interest of a Partner and no
assignee or transferee of all or any part of the Venture Interest
of a Partner shall be admitted to the Venture as a Substituted
Partner except upon: (i) submitting to the Partners a duly executed
and acknowledged counterpart of the instrument or instruments
effecting or evidencing the transfer; (ii) submitting to the
Partners a counterpart of this Agreement (as amended through the
date of transfer) signed by the transferee and appropriately
signifying the transferee's agreement to be bound by all the
provisions of this Agreement (as amended through the date of
transfer); (iii) the transferee's obtaining the remaining Partners'
written consent thereto; and (iv) the transferee's paying all costs
and expenses, including, without limitation, attomeys'fees of the
Venture incurred in effecting the substitution. An assignee who
does not, for any reason, become a Substituted Partner shall be
entitled as a result of the assignment only to receive the economic
benefits of the Venture Interest to which its assignor otherwise
would be entitled, and the assignee shall not have any right to
demand or to receive any account of the Venture's business or to
inspect the Venture's books and records or any other rights as a
Partner, unless and until he is admitted to the Venture as a
Substituted Partner.
SECTION 8
BANKING AND ACCOUNTING
8.1 DEPOSIT OF PARTNERSHIP FUNDS. Venture funds shall be
deposited in the name of the Venture in one or more savings or bank
accounts or the account of some other financial institution to be
designated by the Partners and shall be withdrawn by checks made in
the name of Venture and signed as may be determined from time to
time by the Partners.
8.2 BOOKS OF ACCOUNT. The Venture shall maintain, at the
office of the Venture or of its accountant, books, records, and
accounts which fairly present the operations of the Venture on such
basis, of accounting as is determined by the partners in
consultation with the Venture's accountants. The books shall be
available for inspection by the Partners at all reasonable times.
The fiscal year of the Venture shall be the calendar year.
8.3 STATEMENTS. Not later than 75 days after the close of each
fiscal year of the Venture, the Venture shall deliver to each
Partner a balance sheet of the Venture as at the end of, and an
income statement for, that year, and a statement setting forth that
Partner's. allocable share of all items of Venture income, gain,
loss, deduction, credit and tax preference for that fiscal which
are to be included by that Partner on its federal income tax return
for that year.
SECTION 9
DISSOLUTION: LIQUIDATION: AND TERMINATION
9.1 DISSOLUTION. Subject to the laws of the State of
California, the Venture shall be dissolved and its assets
liquidated upon the first to occur of:
9. 1. 1 the death, retirement, withdrawal, removal,
Bankruptcy, or judicially declared mental incompetence of any
Partner, unless the Venture's business is continued pursuant to
Section 9.2 hereof
9.1.2 the sale, assignment, transfer, exchange or other
disposition of all or substantially all of the Venture's assets and
the collection and distribution of the proceeds thereof; or
9.1.3 the election of the Partners to dissolve the
Venture; provided that such election shall be effective 30 days
following Notice thereof to all the Partners.
9.2 LIQUIDATION .
9.2.1 Upon dissolution of the Venture, the Partners shall
take (or cause to be taken) a full accounting of the Venture's
assets and liabilities as of the date of such dissolution and,
subject to the right of the Partners to continue the business of
the Venture for the purpose of winding up its affairs. The Partners
shall proceed with reasonable promptness to liquidate the Venture's
assets (including, without limitation, by way of the sale,
assignment, transfer, exchange, lease, sublease or other
disposition of any or all of the Venture properties) and to
terminate its business; provided, however, that the assets of the
Venture which are, in the opinion of the Partners, suitable for
distribution in kind, may be distributed in kind to the extent that
the liquidation thereof is not necessary to satisfy the
requirements of clause (i) below. The cash process from the
liquidation shall be applied in the following order:
9.2.1.1 First, to the payment of all taxes, debts
and other obligations and liabilities of the Venture (excluding
therefrom the principal and accrued interest on all then
outstanding loans made by the Partners to the Venture) and to the
necessary expenses of liquidation thereof; provided, however , that
all debts, obligations and other liabilities of the Venture as to
which personal liability exists with respect to any Partner shall,
to the extent permitted by applicable law, be satisfied, or a
reserve established therefor, prior to the satisfaction of any
debt, obligation or other liability of the Venture as to which no
such personal liability exists.
9.2.1.2 Second, to the payment and discharge of
all indebtedness of the Venture owed to the Partners;
9.2.1.3 Third, all remaining assets of the Venture
shall be allocated to the Partners in proportion to their positive
capital accounts as of the date as of the date of dissolution.
9.2.2 It is the intent of the Partners that on
liquidation the assets of the Venture be distributed according to
the provisions of Section 4.1 of this Agreement. Therefore, the
Partners shall be required to make such allocations of profits and
losses on liquidation which will cause their capital accounts to
conform to this intent.
9.2.3 The Partners shall administer the liquidation of
the Venture and the termination of its business but shall receive
no compensation therefor except for fees and compensation
specifically referred to herein. The Partners shall be allowed a
reasonable time for the orderly liquidation of the Venture's assets
and the discharge of liabilities to creditors so as to minimize
losses resulting from the liquidation of the Venture's assets.
9.2.4 Except as otherwise expressly provided herein, no
dissolution or termination of the Venture shall relieve, release or
discharge any Partner, or any of its successors, assigns, heirs or
legal representatives, from any previous breach or default of, or
any obligation theretofore incurred or accrued under, any provision
of this Agreement, and any and all such liabilities, claims,
demands or causes of action arising from any such breaches,
defaults, and obligations shall survive such dissolution and
termination.
9.3 TERMINATION. Upon compliance with the foregoing plan of
liquidation and distribution, the Partners shall file or cause a
Certificate of Dissolution of Venture to be filed in the
appropriate office(s) in the State of California and the
Partnership thereupon shall be terminated.
SECTION 10
GENERAL
10.1 MEDIATION AND ARBITRATION. In the event any controversy
arises between the Partners as to the interpretation or enforcement
of this Agreement, the parties shall attempt to utilize mediation
by a neutral third party mediator to resolve such dispute. In the
event the parties are unable to resolve the dispute through
mediation, it shall be submitted to arbitration pursuant to and in
accordance with the provisions of the California Code of Civil
Procedure governing arbitration (CCP 1280, et seq.). Unless the
parties otherwise agree, on application of any party to a dispute
a single neutral arbitrator shall be selected by the Presiding
Judge of the Superior Court of the City and County of San
Francisco. The arbitration shall be conducted in San Francisco. The
parties shall be entitled to conduct depositions of such witnesses
as each may choose and each party shall be entitle to obtain
documents from the other pursuant to reasonable discovery
supervised by the arbitrator and subject to the arbitrator's
determination as to scope. The arbitrator shall be required to
include findings of fact and conclusions of law with any award. The
costs of arbitration shall be borne by the losing party or in such
proportion as the arbitrator shall decide.
10.2 COVENANT TO SIGN DOCUMENTS. Each Partner covenants, for
himself and its successors and assigns, to execute, with
acknowledgment or verification if required, any and all documents
and writings which may be necessary or expedient in the creation of
the Venture and the achievements of its purposes.
10.3 NOTICES. Unless otherwise provided herein, any offer,
acceptance, election, approval, consent, certification, request,
waiver, notice or other communication required or permitted to be
given hereunder (hereinafter collectively referred to as a
"Notice"), shall be deemed given only if in writing and delivered
personally (with receipt acknowledged) or mailed first class,
certified or registered mail, return receipt requested, postage
prepaid to the Partner at the address set forth in the Preamble to
this Agreement. A Partner may designate another address by delivery
or mailing Notices thereof to the other Partners in accordance with
the provisions in this Section 10.3.
10.4 RECOVERY OF ATTORNEYS' FEES. If the Venture or any
Partner on behalf of the Venture is a party to an action or
arbitration to enforce any of the terms of this Agreement or of any
other contract relating to the Venture, or any action or
arbitration in any other way pertaining to Venture affairs or this
Agreement, the Venture or such Partner, then the prevailing party,
shall be entitled to recover its or its costs, including reasonable
attorneys' fees, incurred in prosecuting or defending the action or
arbitration.
10.5 RIGHT OF PARTNERS TO PURCHASE OTHER PROPERTY. Nothing
contained herein shall preclude any Partner from purchasing any
other property, or rights therein, or in any manner investing in,
participating in, developing or managing any other Venture of any
kind, without notice to the other Partners, without participation
by the other Partners, and without liability to them or any of
them.
10.6 AMENDMENT. Except as otherwise expressly provided herein
or as otherwise required by law, this Agreement may only be amended
upon the written consent of a majority in Interest of the Partners;
provided, that (i) any amendment which shall reduce the Partnership
Interest or enlarge the obligations of any Partner shall require
the consent of that Partner.
10.7 ENTIRE AGREEMENT. This Agreement contains the entire
agreement between the parties and supersedes all prior writing or
representations. Upon due execution, it shall be binding upon the
parties, their executors, administrators, heirs, successors and
assigns.
10.8 CHOICE OF LAWS. The laws of the State of California shall
govern all matters with respect to this Agreement, including all
matters related to formation, construction and performance of this
Agreement.
10.9 WAIVERS. Except as otherwise expressly provided herein,
no purported waiver by any party of any breach by another party of
any of its obligations, agreements or covenants hereunder, or any
part thereof, shall be effective unless made in a writing
subscribed by the party or parties sought to be bound thereby, and
no failure to pursue or elect any remedy with respect to any
default under or breach of any provision of this Agreement, or any
part thereof, shall be deemed to be a waiver of any other,
subsequent, similar or different default or breach, or any election
of remedies available in connection therewith, nor shall the
acceptance or receipt by any party of any money or other
consideration due him or it under this Agreement, with or without
knowledge of any breach hereunder, constitute a waiver of any
provision of this Agreement with respect to such or any other
breach.
10.10 SEPARABILITY. Each provision of this Agreement shall be
considered to be separable and if, for any reason, any such
provision or provisions, or any part thereof, are determined to be
invalid and contrary to any existing or future applicable law, such
invalidity shall not impair the operation of or affect those
portions of this Agreement which are valid, but this Agreement
shall be construed and enforced in all respects as if such invalid
or unenforceable provision or provisions had been omitted.
10. 11 HEADINGS, GENDER AND NUMBER. The section headings
herein contained have been inserted only as a matter of convenience
of reference and in no way define, limit or
describe the scope or intent of any provisions of this Agreement
nor in any way affect any such provisions. Where appropriate as
used herein, the masculine gender shall be deemed to include the
feminine, the feminine gender shall be deemed to include the
masculine, the singular number shall be deemed to include the
plural and the plural number shall be deemed to include the
singular.
10. 12 BENEFIT. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective
executors, administrators and successors, but shall not be deemed
for the benefit of creditors or any other Persons, nor shall it be
deemed to permit any assignment by a Partner of any of its rights
or obligations hereunder except as expressly provided herein.
IN WITNESS WHEREOF, each party has executed this General
Partnership Agreement on the date set forth below the name of each.
PARTNERS :
GIC INVESTMENT CORPORATION
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Dated: April 18, 1995
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, President
WESTCO COMMUNITY BUILDERS, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇ Dated: April 18, 1995
▇▇▇▇▇ ▇▇▇▇▇
AMENDMENT TO PARTNERSHIP AGREEMENT
GLENBRIAR JOINT VENTURE
THIS AGREEMENT is made and entered into as of the 18th day of
April, 1995, by and between GIC Investment Corporation, a
California corporation ("GIC") and Westco Community Builders, Inc.,
a California corporation ("WCB"), together referred to herein as
the "Partners". for the purpose of amending that certain
partnership agreement entered into between the Partners and
effective as of January 1, 1994, and otherwise known as the
Glenbriar Joint Venture (the "Partnership Agreement").
In consideration of GIC paying to WCB the sum of Three Hundred
Eighty Six Thousand One Hundred Fifteen Dollars ($386,115.00) and
further in consideration of the promises and mutual covenants
contained herein, the parties hereto agree to the terms, covenants
and conditions as hereinafter set forth.
1. Section 2.14, "Override Preferred Return", as contained in
the Partnership Agreement, shall be deleted.
2. The last sentence of Section 3.1.1 of the Partnership
Agreement shall be amended to provide that after the date of this
amendment, WCB shall contribute 1% of all capital required by the
Venture.
3. Section 3.1.2 of the Partnership Agreement shall be amended
to provide that after the date of this amendment, GIC shall
contribute 99% of all capital required by the Venture, to a maximum
of $1,980,000.
4. Section 3.2 of the Partnership Agreement shall be amended
to provide that the Partners shall have the following Interests in
the Venture:
GIC: 99%
WCB: 1%
5. GIC shall succeed to 96% of WCB's Capital Account as of the
date of this amendment (which portion the parties agree is
$333,238.62).
6. Section 4.1.2 of the Partnership Agreement shall be amended
by adding the following language:
"Such distribution of preferred return to be 75% to
GIC and 25% to WCB until such time as WCB has received its accrued
preferred return up to April 25, 1995 (which portion the parties
agree is $ 34,189.54), and thereafter distributions of preferred
return shall be 99% to GIC and 1% to WCB."
7. Section 4.1.3 of the Partnership Agreement shall be amended
to provide "Thereafter 60% to GIC and 40% to WCB."
8. Section 4.1.4 of the Partnership Agreement shall be
deleted.
9. A new Section 4.2 shall be added to the Partnership
Agreement and provide:
"4.2 Notwithstanding the provisions of Section 4.1, WCB
shall receive, in each fiscal year, distributions of net cash flow
in an amount not less than 40% of the amount of profit allocated
to WCB pursuant to Section 5.1.3 hereof, and thereafter GIC shall
receive the next distributions until such time as total cumulative
distributions of Net Cash Flow are consistent with Section 4.1 of
this agreement without considering this Section 4.2."
10. Section 5.1.3 of the Partnership Agreement shall be
amended to provide "The balance, if any, 60% to GIC and 40% to
WCB."
11. Section 5.1.4 of the Partnership Agreement shall be
deleted.
12. Section 5.2.1 of the Partnership Agreement shall be
amended to provide:
115.2.1 To the extent Profits have been allocated
pursuant to Section 5.1.3 or 5.1.2 hereof for any prior year,
Losses shall be allocated first to offset any Profits allocated
pursuant to Section 5.1.3 prorata among the Partners in proportion
to their shares of the Profits being offset, then likewise with
respect to allocations pursuant to Section 5.1.2.11
13. Section 6.2.3 of the Partnership Agreement shall be
amended to provide:
116.2.3 loan money to the Venture or borrow money from
third Persons for, in the name of and on behalf of the Venture;
provided, however, that GIC may solely make the decision to borrow
funds on behalf of the Partnership and to encumber the Property in
an amount up to $500,000 for the purpose of reducing the Partners
Capital Contributions to the Venture. In such case, WCB shall
cooperate with such actions or efforts."
IN WITNESS WHEREOF, each party has executed this amendment
to the Partnership Agreement on the date set forth below.
PARTNERS :
GIC INVESTMENT CORPORATION
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Dated: April 18, 1995
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, President
WESTCO COMMUNITY BUILDERS, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇ Dated: April 18, 1995
▇▇▇▇▇ ▇▇▇▇▇
AMENDMENT TO PARTNERSHIP AGREEMENT
ADDENDUM NO, I
Section 6.3. 1 of the Partnership Agreement shall be further
amended as follows
The Venture shall extend payment of the management fee to WCB
beyond the 12-month term described in the Partnership Agreement.
The management fee shall be paid by the Venture on a continuous and
uninterrupted basis commencing on January 1, 1994 through a date,
determined by GIC Investment Corporation, as a reasonable
termination point based upon the amount of time that WCB needs to
spend on the project, The management fee shall remain unmodified at
a rate of $5,000.00 per month.
PARTNERS :
GIC INVESTMENT CORPORATION
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Dated: April 18, 1995
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, President
WESTCO COMMUNITY BUILDERS, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇ Dated: April 18, 1995
▇▇▇▇▇ ▇▇▇▇▇
GLENBRIAR JOINT VENTURE
REVISED STATEMENT OF PARTNERSHIP
THE UNDERSIGNED, constituting all of the Partners of GLENBRIAR JOINT VENTURE,
a general partnership created under the laws of the State of California, as
of January 1, 1994, hereby amend and revise the Statement of Partnership
previously recorded as Instrument No. 94101821, on September 8, 1994, in the
records of the San ▇▇▇▇▇▇▇ County Recorder, State of California, and hereby
make this Statement under and pursuant to Section 15010.5 of the California
Corporation Code, to wit:
1. The name of the Partnership is:
GLENBRIAR JOINT VENTURE
2. The names of the Partners are:
WESTCO COMMUNITY BUILDERS, INC.
DOVER INVESTMENTS CORPORATION
3. The persons named in Paragraph 2 of this Statement are all
of the Partners of said Partnership.
THIS STATEMENT was executed on July 2, 1997, at San Francisco, CA.
WESTCO COMMUNITY BUILDERS, INC.,
a California corporation
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, Executive Vice Presidnet
DOVER INVESTMENTS CORPORATION,
a California corporation
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇. President