Exhibit 10.26
LIMITED PARTNERSHIP AGREEMENT
OF
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ HARRISBURG LP
THIS LIMITED PARTNERSHIP AGREEMENT (such Agreement, as amended from
time to time after the date hereof, is hereafter referred to as the "Agreement")
is entered into effective as of the 30th day of September, 2003 by and among
those persons listed on Exhibit "A" attached hereto.
B A C K G R O U N D
WHEREAS, the Partnership was formed by the filing of a Certificate of
Limited Partnership with the Secretary of State of the Commonwealth of
Pennsylvania on September 24, 2003.
WHEREAS, the Partnership intends to acquire and develop the 838,000
square foot retail mall located at ▇▇▇▇▇▇ Street and Interstate 83 in the
Township of Swatara, Dauphin County, Pennsylvania (the "Property");
WHEREAS, the Partners hereto desire to enter into this Agreement to
define and express all of their respective rights and obligations with respect
to the operation of the Partnership as a limited liability Partnership;
NOW, THEREFORE, incorporating the entire background herein by
reference, the parties hereto, intending to be legally bound, hereby agree as
follows:
ARTICLE 1. DEFINITIONS
Capitalized terms used in this Agreement and not defined elsewhere
herein shall have the following meanings:
"Act" means the Pennsylvania Revised Uniform Limited Partnership Act as
the same may be amended.
"Additional Capital Contribution" has the meaning set forth in Section
5.2(b) of this Agreement.
"Additional Capital Contributions Preferred Return" means, with respect
to any Partner, a cumulative compounded (quarterly on the first day of each
January, April, July and October) return equal to twelve percent (12%) per annum
(based on a banking year of 365 days) on such Partner's Unreturned Additional
Capital Contributions Account balance outstanding from time to time, computed on
each Additional Capital Contribution from the date such is made.
"Affiliate" (whether or not capitalized) means (i) any Person,
directly, or indirectly controlling, controlled by or in common control with a
specified Person; (ii) any Person owning or controlling ten percent (10%) or
more of the outstanding voting interests of a specified Person; (iii) any
employee, officer, partner, member, manager, director or trustee of such
specified Person; and (iv) if a specified Person is an officer, Partner,
Partner, partner or trustee of a Person, the Person for which such Person acts
in such capacity.
"Agreement" means this Partnership Agreement, as the same may be
amended from time to time.
"Agreement of Sale" means that certain Agreement for Purchase and Sale
of Real Estate dated December 16, 2002, between The Prudential Insurance Company
of America, a New Jersey corporation, as Seller and ▇▇▇▇▇▇▇ Equities of Arizona,
L.L.C., an Arizona limited liability company, as Purchaser, as amended; ▇▇▇▇▇▇▇
Limited Partner shall cause ▇▇▇▇▇▇▇ Equities of Arizona, L.L.C. to assign the
Agreement of Sale to the Partnership without warranty promptly following
execution of this Agreement, provided, however, that such assignment shall be on
the condition that the Partnership shall promptly reimburse ▇▇▇▇▇▇▇ Equities of
Arizona, L.L.C. for reasonable expenses incurred in connection with the Property
and/or the Agreement prior to the assignment as detailed in Section 5.1, below
and shall indemnify the assignor for any liabilities arising under the Agreement
after the assignment.
"Appraiser" shall mean a "big four" (or the equivalent at the time)
certified public accounting firm.
"Approval of the Partners" or "Approved by the Partners" shall mean
approval by ▇▇▇▇▇▇▇ General Partner and the holders of a majority of the limited
partnership interests in the Partnership not held by ▇▇▇▇▇▇▇ Limited Partner or
▇▇▇▇▇▇▇ General Partner.
"Bankruptcy" means, with respect to any Person, a "Voluntary
Bankruptcy" or an "Involuntary Bankruptcy." A "Voluntary Bankruptcy" means, with
respect to any Person, the inability of such Person generally to pay its debts
as such debts become due, or an admission in writing by such Person of its
inability to pay its debts generally or a general assignment by such Person for
the benefit of creditors; the filing of any petition or answer by such Person
seeking to adjudicate it a bankrupt or insolvent, or seeking for itself any
liquidation, winding up, reorganization, arrangement, adjustment, protection,
relief, or composition of such Person or its debts under any law relating to
bankruptcy, insolvency or reorganization or relief of debtors, or seeking,
consenting to, or acquiescing in the entry of an order for relief or the
appointment of a receiver, trustee, custodian, or other similar official for
such Person or for any substantial part of its property, or corporate action
taken by such Person to authorize any of the actions set forth above. An
"Involuntary Bankruptcy" means, with respect to any Person, without the consent
or acquiescence of such Person, the entering of an order (not subject to appeal)
for relief or approving a petition for relief or reorganization or any other
petition seeking any reorganization, arrangement, composition, readjustment,
liquidation, dissolution, or other similar relief under any present or future
bankruptcy, insolvency or similar statute, law, or regulation, or the filing of
any such petition against such Person which petition shall not be dismissed
within ninety (90) days, or, without the consent or acquiescence of such Person,
the entering of an order appointing a trustee, custodian, receiver, or
liquidator of such Person or of all or any substantial part of the property of
such Person which order shall not be dismissed within sixty (60) days.
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"Book Value" shall have the meaning set forth in Section 7.5 of this
Agreement.
"Budget" shall have the meaning set forth in Section 8.6 of this
Agreement.
"Business Day" means a day of the year, excluding all Saturdays and
Sundays, on which national banks are open for business to the public in the
Commonwealth of Pennsylvania.
"Capital Account" means, with respect to any Partner, such Partner's
Capital Account determined in accordance with Section 5.6 of this Agreement.
"Capital Contribution" means, with respect to any Partner, the amount
of money or Book Value of other property contributed to the Partnership by such
Partner pursuant to Sections 5.1 and 5.2 of this Agreement, reduced by the
amount of any liability which either relates to the property and is assumed by
the Partnership or is a liability to which such property is subject.
"Capital Transaction" means (i) a transaction pursuant to which the
Partnership (or any entity in which the Partnership has a direct or indirect
interest) finances or refinances mortgage indebtedness; (ii) a sale,
condemnation, exchange or a casualty not followed by reconstruction, or other
disposition, whether by foreclosure or otherwise, of all or a portion of an
asset owned by the Partnership or any entity in which the Partnership has a
direct or indirect interest; or (iii) an insurance recovery or any other
transaction with respect to the Partnership (or any entity in which the
Partnership has a direct or indirect interest) which, in accordance with
generally accepted accounting principles, is considered capital in nature.
"Certificate of Limited Partnership" means the Partnership's
Certificate of Limited Partnership filed with the Commonwealth of Pennsylvania,
as the same may be amended from time to time.
"Code" means the Internal Revenue Code of 1986, as amended. All
references herein to Code sections shall include corresponding provisions of
future federal tax statutes.
"Depreciation" means, for each fiscal year or other period, an amount
equal to the depreciation, amortization or other cost recovery deduction
allowable with respect to an asset for such year or other period, except that if
the Book Value of an asset differs from its adjusted basis for federal income
tax purposes at the beginning of such year or other period, Depreciation shall
be an amount which bears the same ratio to such beginning Book Value as the
federal income tax depreciation, amortization or other cost recovery deduction
for such year or other period bears to such beginning adjusted tax basis;
provided, however, that if the federal income tax depreciation, amortization or
other cost recovery deduction for such year or other period is zero,
Depreciation shall be determined with reference to such beginning Book Value
using any reasonable method selected by the Partners.
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"Distributable Cash from Operations" for any period means the total
annual cash gross receipts of the Partnership during such period derived from
all sources (including from any reserves previously established by the General
Partner with the Approval of the Partners) less (i) Net Cash from Capital
Transactions received during such period, (ii) the Operating Expenses of the
Partnership paid during such period, (iii) any amounts set aside during such
period by the General Partner with the Approval of the Partners for the
restoration or creation of commercially reasonable reserves, and (iv) amounts
received during such period by the Partnership in respect of Capital
Contributions.
"▇▇▇▇▇▇▇ General Partner" shall mean ▇▇▇▇▇▇▇ Harrisburg General Partner
Inc, a Pennsylvania corporation, or any permitted successor to such general
partnership interest.
"▇▇▇▇▇▇▇ Limited Partner" shall mean ▇▇▇▇▇▇▇ Harrisburg Limited
Partnership, LP, a Pennsylvania limited partnership, or any permitted successor
to such general partnership interest.
"Fund III Partners" means, individually and collectively, ▇▇▇▇▇▇-▇▇▇▇▇
Real Estate Fund III, L.P., ▇▇▇▇▇▇-▇▇▇▇▇ Real Estate Parallel Fund III, L.P.,
▇▇▇▇▇▇-▇▇▇▇▇ Capital Real Estate Fund II, L.P. and ▇▇▇▇▇▇-▇▇▇▇▇ Real Estate
Equity Fund III, L.P. each a Delaware limited partnership, as set forth on
Exhibit "A" attached hereto and their permitted successors and assigns.
"General Partner" means the Partner with authority to act on certain
matters affecting the Partnership pursuant to Section 8.3 of this Agreement. The
initial General Partner shall be ▇▇▇▇▇▇▇ General Partner.
"Indemnitee" has the meaning set forth in Section 8.12(a) of this
Agreement.
"Initial Mortgage Loan" means that certain loan in the original
principal sum of $16,875,742 to be made by Commerce Bank, N.A. ("Lender") to the
Partnership.
"Interest" means a Partner's economic rights and other interest in the
Partnership as a Partner as provided in this Agreement.
"Majority in Interest" means those Partners whose Percentage Interests
in the aggregate are greater than fifty percent (50%) of the Percentage
Interests owned by all of the Partners.
"Management Agreement" has the meaning set forth in Section 12.1 of
this Agreement.
"Minimum Gain" means "minimum gain" as defined in Section 1.704-2(d) of
the Regulations with respect to the Partnership.
"Necessary Funds" has the meaning set forth in Sections 5.2(f) and
5.2(g) of this Agreement.
"Net Cash from Capital Transactions" means cash proceeds received by
the Partnership as a result of a Capital Transaction, after payment of the
Partnership's expenses relating to such Capital Transaction and such
indebtedness of the Partnership as the Partners shall unanimously determine to
pay with the proceeds thereof, and after setting aside reasonable reserves in
connection with the Capital Transaction as determined by the General Partner
with the Approval of the Partners.
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"Operating Expenses" means all cash expenditures including, without
limitation, expenditures for property management, salaries, accounting,
bookkeeping, computer or accounting equipment use, travel properly chargeable to
the Partnership, telephone, payments of principal of and interest on loans to
and/or notes from the Partnership (including payment, in accordance with their
terms, of any loans from or notes to any Partner or Affiliate, there being no
obligation created hereby for any Partner or Affiliate to make any such loans),
or other fees payable by the Partnership. Notwithstanding the foregoing,
Operating Expenses shall not include: (i) any overhead expense of any Partner or
salaries paid by it to its Affiliates (except as otherwise provided in Article
XII hereof); (ii) any cash or capital expenditures expended up to the whole of
the accumulated cash reserve of the Partnership not otherwise allocated for
specific purposes (any capital expenditures in excess of accumulated cash
reserves shall be deemed an Operating Expense); and (iii) non-cash items such as
Depreciation and amortization.
"Partner" means the General Partner and any Person listed on Exhibit
"A" attached hereto as a limited partner and any other Person admitted as a
Partner pursuant to this Agreement.
"Partner Loan" has the meaning set forth in Section 5.2(d) of this
Agreement.
"Partner Minimum Gain" means "partner nonrecourse debt minimum gain" as
defined in Section 1.704-2(i)(2) of the Regulations, and as determined in
accordance with Section 1.704-2(i)(3) of the Regulations.
"Partnership" means ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ HARRISBURG LP, a Pennsylvania
limited partnership.
"Percentage Interest" with respect to any Partner, means the aggregate
Capital Contributions made to the Partnership by such Partner divided by the sum
of the aggregate Capital Contributions made to the Partnership by all the
Partners, expressed as a percentage. The initial Percentage Interests of the
Partners are as set forth on Exhibit "A" attached hereto. The Percentage
Interests of the Partners shall be adjusted from time to time to the extent
specified in this Agreement.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, trust, non-incorporated
organization or any governmental entity or any agency or political subdivision
thereof.
"Prime Rate" means the interest rate announced from time to time by ▇▇
▇▇▇▇▇▇ Chase Bank (or any successor thereto) as its prime lending rate
(regardless of how such rate is specifically described).
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"Priority Return" means an annual cumulative return, compounded
quarterly on the first day of January, April, July, and October, equal to twelve
percent (12%) per annum (based on a banking year of 365 days) on such Partner's
Unreturned Capital Contributions Account balance outstanding from time to time.
"Profit or Profits" and "Loss or Losses" means, for each fiscal year or
other period, an amount equal to the Partnership's taxable income or loss for
such year or period, as determined by the Partnership's accountants, 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 Profits or Losses), with the adjustments
required by Section 1.704-1(b)(2)(iv) of the Regulations and the following
adjustments:
(i) Any income of the Partnership that is exempt from
federal income tax and not otherwise taken into account in computing Profits and
Losses shall be added back;
(ii) Any expenditure of the Partnership that is
described, or is treated pursuant to Section 1.704(b)(2)(iv)(i) of the
Regulations as described, in Code Section 705(a)(2)(B) and not otherwise taken
into account in computing Profits or Losses shall be subtracted;
(iii) If the Book Value of any Partnership asset is
adjusted pursuant to this Agreement, the amount of such adjustment shall be
taken into account as gain or loss from the disposition of such asset for
purposes of computing Profits or Losses;
(iv) Gain or loss resulting from any taxable
disposition of Partnership property shall be computed by reference to the Book
Value of the Partnership property disposed of, notwithstanding that the adjusted
tax basis of such Property differs from its Book Value;
(v) In lieu of the depreciation, amortization and
other cost recovery deductions taken into account in computing taxable income or
loss, there shall be taken into account Depreciation computed in accordance with
this Agreement; and
(vi) Notwithstanding any other provision of this
Agreement, any item which is allocated pursuant to Section 7.3 hereof shall not
be taken into account in computing Profits or Losses.
"Promote" means the total of distributions to ▇▇▇▇▇▇▇ Limited Partner
pursuant to clause A of Sections 6.2(a)(iv) and 6.2(b)(v), as adjusted pursuant
to Section 6.2(c).
"Property" has the meaning stated in the Background section of this
Agreement.
"Property Manager" has the meaning set forth in Section 12.1(a) of this
Agreement.
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"Regulations" means the regulations promulgated under the Code, as the
same may be amended or supplemented from time to time.
"Regulatory Allocations" has the meaning set forth in Section 7.3 of
this Agreement.
"Transfer" with respect to any Interest in the Partnership, means any
sale, bequest, assignment, pledge, encumbrance or gift thereof, or attempt to
deliver a security interest therein, but shall not include a voluntary pledge or
assignment pursuant to a written agreement by a Partner of only the rights to
recover proceeds as distributed by the Partnership with respect to any Interest
nor shall include a collateral assignment of one Partner's Interest to another
Partner.
"Unreturned Additional Capital Contributions Account" with respect to
any Partner, means a bookkeeping account which shall at any time be equal to the
Additional Capital Contributions made to the Partnership pursuant to Section
5.2(a) hereof by such Partner, if any, reduced by distributions made to such
Partner pursuant to Sections 6.2(a)(ii) and 6.2(b)(ii) of this Agreement.
"Unreturned Capital Contributions Account" with respect to any Partner,
means a bookkeeping account which shall at any time be equal to the Capital
Contribution made to the Partnership by such Partner pursuant to Section 5.1
hereof, reduced by distributions made to such Partner pursuant to Section
6.2(b)(iv) of this Agreement.
ARTICLE 2. ORGANIZATION
2.1 Formation. The Partnership was formed by the filing of its
Certificate of limited partnership with the Commonwealth of Pennsylvania under
and pursuant to the Act.
2.2 Name. The name of the Partnership is "▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇-HARRISBURG, LP".
2.3 Principal Place of Business; Registered Office; Registered Agent.
The principal place of business of the Partnership shall be at ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇. The Partnership may establish one or more other
places of business within or without the Commonwealth of Pennsylvania as
determined by the Partners.
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ARTICLE 3. PURPOSE
3.1 Formation. The purpose of the Partnership is limited solely to
acquiring, owning, holding, developing, redeveloping, holding, selling, leasing,
transferring, exchanging, operating, financing and managing the Property;
engaging in and conducting such activities directly related to the foregoing
purpose as may be necessary, advisable, or appropriate, in the reasonable
opinion of the Partners to further the foregoing purpose; and exercising any
powers permitted under the Act which are incidental to the foregoing or
necessary or appropriate to accomplish the foregoing. The Partnership shall not
engage in any business or activity other than as permitted in this Article III.
ARTICLE 4. TERM
The term of the Partnership commenced on the date of filing the
Certificate of Formation with the Office of the Secretary of the Commonwealth of
Pennsylvania, and shall be for a term of fifty (50) years unless dissolved
sooner pursuant to Article X of this Agreement.
ARTICLE 5. CONTRIBUTIONS TO CAPITAL; STATUS OF PARTNERS;
CAPITAL ACCOUNTS
5.1 Capital Contributions. (a) Each Partner shall make a Capital
Contribution to the Partnership in the amount set forth next to such Partner's
name listed on Exhibit "A" attached hereto, in accordance with Exhibit "A", with
the amount designated as the Initial Capital Contributions made to the
Partnership no later than the required date for acquisition of the Property
under the Agreement of Sale. In the event any Partner fails to timely make any
installment of such Capital Contribution, the Partnership and the other Partners
shall have the rights and remedies available on account of such failure under
applicable law, including, without limitation, the rights set forth in Section
5.2(b) through 5.2(d) as if the failure to make such installment was a failure
to contribute Necessary Funds. Notwithstanding the foregoing, each Partner shall
prepay to the Partnership within ten (10) days following notice by the General
Partner such portion of such Partner's Initial Capital Contribution as is
necessary to (a) timely make any payments or deposits required under the
Agreement of Sale, (b) reimburse ▇▇▇▇▇▇▇ Equities of Arizona, L.L.C. for the
reasonable expenses incurred by such entity in connection with the Property
and/or the Agreement of Sale prior to the execution of this Agreement, and (c)
reimburse any Partner for any reasonable expenses incurred by such Partner in
connection with the Property or the Agreement of Sale prior to the Partnership's
acquisition of the Property; provided, however, that such prepayments shall not
be in excess of the pre-closing budget attached hereto as Exhibit "D" and that
all such required prepayments shall be made by the Partners in proportion to
their respective initial Capital Contributions shown on Exhibit A. The Partners
acknowledge that ▇▇▇▇▇▇▇ Limited Partner and the Fund III Partners (collectively
and not individually) shall each be credited with an initial payment of their
Capital Contribution as a result of the ▇▇▇▇▇▇▇ money deposit made by each
pursuant to the Agreement of Sale and any interest earned on such ▇▇▇▇▇▇▇ money
as applicable to the time periods and the Partner that posted such ▇▇▇▇▇▇▇
money.
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(b) The ▇▇▇▇▇▇▇ Limited Partner may acquire from the Fund III
Partners a portion of the Fund III Partner's limited partnership interest in the
Partnership upon the following conditions:
(i) The acquisition must be completed within sixty (60)
days following acquisition of the Property pursuant
to an assignment and assumption agreement reasonably
acceptable to the parties and an amendment to Exhibit
"A" to the Partnership Agreement;
(ii) After such acquisition, the total Capital
Contributions of the ▇▇▇▇▇▇▇ General Partner and the
▇▇▇▇▇▇▇ Limited Partner, together, shall not exceed
25% of the aggregate Capital Contributions of all
Partners;
(iii) The Fund III Partners shall receive as consideration
for the assignment an amount equal to the
proportionate share of capital it contributed
relating to the limited partnership interest assigned
plus an amount equal to the Priority Return accruing
on such capital from the date first paid by the Fund
III Partners until the date payment is received by
the Fund III Partners.
(iv) For example, assuming total Capital Contributions of
all partners equals $14,440,000 and the ▇▇▇▇▇▇▇
Limited Partner acquires an additional 15% interest
sixty (60) days after the closing on the acquisition
of the Property which date is also sixty (60) days
after the Fund III Partners contributed their
capital, then the Fund III Partners must receive from
the ▇▇▇▇▇▇▇ Limited Partner in consideration of such
assignment $2,203,200.00, which represents the
following:
1. $14,400,000 x 15% = $2,160,000
2. $2,160,000 x 12% x 60/365 = $43,200
3. $2,160,000 + $43,200 = $2,203,200
5.2 Additional Capital Contributions.
(a) Subject to the provisions of Section 5.2(e), if, at any time
and from time to time, either (i) the Partners shall unanimously determine that
the Partnership requires capital to meet Partnership obligations or needs or
(ii) any Partner shall determine that the Partnership requires a contribution of
Necessary Funds, each Partner shall contribute as an Additional Capital
Contribution to the capital of the Partnership such Partner's pro rata share of
the total Additional Capital Contributions so determined, based on such
Partner's Percentage Interest in the Partnership. The General Partner shall give
written notice to the Partners of the need for Additional Capital Contributions.
Each Partner shall contribute its pro rata share of Additional Capital
Contributions within thirty (30) days after having received written notice
thereof from the General Partner.
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(b) For the purposes of Sections 5.2(b) through 5.2(e), all of the
Fund III Partners shall be deemed together to be one Partner. If any Partner (a
"Non-Contributing Partner") does not contribute any required Additional Capital
Contribution within the prescribed time therefor, (i) the Partnership and the
other Partners shall have the remedies hereafter set forth in this Section 5.2,
but shall have no other remedies against the Non-Contributing Partner on account
of its failure to make any contribution of any required Additional Capital
Contribution, (ii) the Partners shall send an additional notice to all Partners
setting forth such fact and the amount unpaid, and (iii) the other Partners who
have contributed their shares of such required Additional Capital Contribution
(each, a "Contributing Partner") shall have the right (the "Additional Capital
Contribution Election"), but not the obligation, to make an Additional Capital
Contribution to the Partnership in the amount which the Non-Contributing Partner
failed or declined to contribute.
(c) Except as otherwise provided in Section 5.2(d), the
Contributing Partner which shall have made an Additional Capital Contribution
for a Non-Contributing Partner shall have its Percentage Interest in the
Partnership increased and the Non-Contributing Partner shall have its Percentage
Interest in the Partnership decreased so that each Partner's Percentage Interest
in the Partnership shall be based on the amount of Capital Contributions
contributed by such Partner divided by the total Capital Contributions
contributed to the Partnership by all Partners, provided, however, that if the
Additional Capital Contribution made by the Contributing Partner was for
Necessary Funds, the foregoing increase in the Contributing Partner's Percentage
Interest shall be doubled and the foregoing decrease in the Non-Contributing
Partner's Percentage Interest shall be doubled.
(d) In lieu of making an Additional Capital Contribution and
increasing its Percentage Interest in the Partnership pursuant to Section 5.2(c)
hereof, a Contributing Partner who is otherwise eligible to make an Additional
Capital Contribution for a Non-Contributing Partner may elect to treat any
Additional Capital Contribution and/or the Non-Contributing Partner's share of
Necessary Funds as a non-recourse loan (rather than a Capital Contribution) to
the Non-Contributing Partner (a "Partner Loan"), which loan shall bear interest
at the annual interest rate equal to the Priority Return rate; and, an amount
equal to the Partner Loan shall be treated as having been contributed to the
Partnership as an Additional Capital Contribution by the Non-Contributing
Partner. Such loans shall be repaid only as set forth in Section 6.5 hereof.
Such election shall be made by a Contributing Partner giving notice thereof in
writing to the Partnership and the Non-Contributing Partner at the time of the
making of the Additional Capital Contribution.
(e) The other Partners shall, at the request of a Contributing
Partner, execute and deliver such amendments to this Agreement and, if necessary
or appropriate, the Certificate of Formation, as the Contributing Partner may
reasonably request, to reflect the adjustments pursuant to this Section 5.2.
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The term "Necessary Funds" shall mean any and all funds needed by the
Partnership (and which the Partnership is contractually prohibited from or
otherwise cannot borrow on reasonable terms) which are in excess of the
Partnership's net operating revenues and reserves for such purposes to: (i) pay
the costs and expenses for the redevelopment (to the extent reflected in the
Budget), maintenance, repair, management and leasing (to the extent reflected in
the Budget) of the Partnership's Property, (ii) pay the costs of performing the
Partnership's agreements under any leases, contracts, agreements, commitments or
other instruments to which the Partnership is or shall become a party or whereby
it or its assets are or shall become bound (other than mortgage loans) provided
that such leases, contracts, agreements, commitments or other instructions were
Approved by the Partners (iii) pay, when due, real estate and other taxes
affecting the Partnership's Property and insurance premiums for the
Partnership's Property, (iv) comply with all legal requirements and insurance
requirements now or hereafter applicable to the Partnership's Property and the
operation and management thereof, (v) restore the Partnership's Property in the
event of a fire or other casualty, if a determination is made by the Partnership
to perform such restoration or if the Partnership is contractually obligated to
restore such damage, (vi) pay, when due, amounts owed by the Partnership to the
Partnership's employees and trade and other creditors, (vii) fund any item set
forth on the Partnership's Budget which has been Approved by the Partners,
including reserves and (viii) pay the Partnership liabilities when due, in
connection with any mortgage loans or other indebtedness Approved by the
Partners.
In the event the amount of funds needed by the Partnership to complete
construction or development is in excess of the approved Budget in effect on the
date hereof (for reasons which may include, without limitation, interest costs
incurred as a result of a delay in the scheduled completion date for
construction of the Property), and (1) the need for such excess funds is
attributable to (i) casualty or an Act of God or other force majeure type of
event beyond the reasonable control of the Partnership or the General Partner,
or (ii) any change in the scope of construction Approved by the Partners as an
additional capital expenditure, and (2) the amount of such needed funds is in
excess of the unallocated amounts remaining in the contingency category of the
Budget, then all such shall constitute Necessary Funds hereunder and shall be
funded pursuant to the above procedures for the Partners to make Additional
Capital Contributions of Necessary Funds. If any Partner fails to timely
contribute its required amount under the preceding sentence, the rights and
remedies of the Partners shall be as set forth in Sections 5.2(b) through
5.2(d).
a. Return of Capital Contributions. Except as specifically
provided in this Agreement, no Partner shall be entitled to demand or receive
the return of its Capital Contribution. Upon dissolution and liquidation of the
Partnership, except as provided in Section 6.3, the Partners shall look solely
to the Partnership assets for the return of their Capital Contributions, and no
Partner shall be liable for such return, even if such Partnership assets are
insufficient to return the full amount of such Capital Contributions.
b. Limited Liability. The liability of each of the Partners to
the Partnership shall be limited to the amount of Capital Contributions that
such Partner shall have made to the Partnership.
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c. Interest on Capital. No interest shall be payable on any
Capital Contributions made to the Partnership or on balances in the Partner's
Capital Accounts.
d. Capital Accounts. The Partnership shall maintain a separate
Capital Account for each Partner in accordance with Section 1.704-l(b)(2)(iv) of
the Regulations. In the event that the terms of such regulation are inconsistent
with the provisions of this Agreement, the terms of the regulation shall
control.
ARTICLE 6. DISTRIBUTIONS
6.1 Timing of Distributions of Cash.
(a) Distributable Cash from Operations. To the extent the
Partnership has more than a de minimis amount of Distributable Cash from
Operations, it shall distribute Distributable Cash From Operations no less
frequently than quarterly.
(b) Distributions of Net Cash from Capital Transactions. The
Partnership shall distribute Net Cash from Capital Transactions within
forty-five (45) days of the Partnership's receipt of such Net Cash from Capital
Transactions.
6.2 Priority of Distributions.
(a) Distributable Cash from Operations. Distributable Cash from
Operations shall be distributed as follows:
(i) First, to the Partners, an amount equal to the unpaid
Additional Capital Contributions Preferred Return
owing to the Partners, distributed to each Partner
pro rata in proportion to the amount of such
Partner's unpaid Additional Capital Contributions
Preferred Return;
(ii) Second, to the Partners, pro rata in proportion to
each Partner's Unreturned Additional Capital
Contributions Account, until each Partner's
Unreturned Additional Capital Contributions Account
has been reduced to zero.
(iii) Third, to the Partners, an amount equal to the unpaid
Priority Return owing to the Partners, distributed to
each Partner pro rata in proportion to the amount of
such Partner's unpaid Priority Return; and
(iv) Thereafter, (A) twenty percent (20%) to ▇▇▇▇▇▇▇
Limited Partner and (B) eighty percent (80%) to the
Partners pro rata in accordance with their respective
Percentage Interests (including, without limitation,
▇▇▇▇▇▇▇ Limited Partner).
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(b) Net Cash from Capital Transactions. Net Cash from Capital
Transactions shall be distributed as follows:
(i) First, to the Partners, an amount equal to the unpaid
Additional Capital Contributions Preferred Return
owing to the Partners, distributed to each Partner
pro rata in proportion to the amount of such
Partner's unpaid Additional Capital Contributions
Preferred Return;
(ii) Second, to the Partners, pro rata in proportion to
each Partner's Unreturned Additional Capital
Contributions Account balance, until each Partner's
Unreturned Additional Capital Contributions Account
balance has been reduced to zero;
(iii) Third, to the Partners, an amount equal to the unpaid
Priority Return owing to the Partners, distributed to
each Partner pro rata in proportion to the amount of
such Partner's unpaid Priority Return;
(iv) Fourth, to the Partners, pro rata in proportion to
each Partner's Unreturned Capital Contributions
Account balance, until each Partner's Unreturned
Capital Contributions Account balance has been
reduced to zero; and
(v) Thereafter, (A) twenty percent (20%) to ▇▇▇▇▇▇▇
Limited Partner and (B) eighty percent (80%) to the
Partners pro rata in accordance with their respective
Percentage Interests (including, without limitation,
▇▇▇▇▇▇▇ Limited Partner).
(c) Increase in Promote. Upon the receipt by the Partners of
distributions resulting in the realization of a twenty percent (20%) annualized
internal rate of return on their investment from the inception, distributions
thereafter occurring under Sections 6.2(a)(iv) and 6.2(b)(v) shall be adjusted
so that thirty percent (30%) shall be distributed to ▇▇▇▇▇▇▇ Limited Partner and
seventy percent (70%) to the Partners (including, without limitation, ▇▇▇▇▇▇▇
Limited Partner) pro rata in accordance with their respective Percentage
Interests.
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6.3 Shortfall Distribution. Notwithstanding any contrary provision of
this Agreement, if, upon liquidation of the Partnership pursuant to Article X
hereof, the amount available for distribution to the Fund III Partners is less
than the sum of (a) the Fund III Partners' unpaid Priority Returns and
Unreturned Capital Contributions Account balance (b) the Fund III Partners'
unpaid Additional Capital Contributions Preferred Returns and Unreturned
Additional Capital Contributions Account balance (such difference being termed
herein a "Shortfall"), then ▇▇▇▇▇▇▇ Limited Partner shall contribute to the
Partnership, for the purpose of funding a special distribution to the Fund III
Partners, the lesser of (a) the amount of the Shortfall, and (b) the total of
distributions to ▇▇▇▇▇▇▇ Limited Partner pursuant to clause A of Section
6.2(a)(iv). The Partnership shall distribute to the Fund III Partners any amount
so contributed by ▇▇▇▇▇▇▇ Limited Partner in accordance with the priorities set
forth in Section 6.2(b).
6.4 Distribution of Proceeds from Dissolution. In the event of the
dissolution and liquidation of the Partnership pursuant to Article X of this
Agreement, the net cash proceeds and/or other assets (the value of which shall
be determined by an Appraiser Approved by the Partners or, in the absence of
Approval by the Partners, by the American Arbitration Association) of the
Partnership available for distribution shall, except as provided in Section 6.3
hereof, be distributed among the Partners in the amounts and with the priorities
set forth in Section 6.2(b), as adjusted pursuant to Section 6.2(c), of this
Agreement. If any of the assets of the Partnership is to be distributed in kind,
the fair market value of such asset shall be determined as of the time of such
distribution (or at such other day reasonably close to the day of such
distribution as the General Partner shall determine). There shall be allocated
among the Partners, in accordance with Article VII of this Agreement, the amount
of Profit or Loss, if any, which would have been realized by the Partnership if
such assets had been sold by the Partnership for prices equal to their
respective fair market values as so determined.
6.5 Taxes Withheld. Unless treated as a Tax Payment Loan (as
hereinafter defined), any amount paid by the Partnership for or with respect to
any Partner on account of any withholding tax or other tax payable with respect
to the income, profits or distributions of the Partnership pursuant to the Code,
the Regulations, or any state or local statute, regulation or ordinance
requiring such payment (a "Withholding Tax Act") shall be treated as a
distribution to such Partner for all purposes of this Agreement, consistent with
the character or source of the income, profits or cash which gave rise to the
payment or withholding obligation. To the extent that the amount required to be
remitted by the Partnership under the Withholding Tax Act exceeds the amount
then otherwise distributable to such Partner, the excess shall constitute a loan
from the Partnership to such Partner (a "Tax Payment Loan") which shall be
payable upon demand and shall bear interest, from the date that the Partnership
makes the payment to the relevant taxing authority, at the greater of the Prime
Rate, plus two (2) percentage points, compounded monthly or the interest rate
specified for the Additional Capital Contributions Preferred Return. So long as
any Tax Payment Loan or the interest thereon remains unpaid, the Partnership
shall make future distributions due to such Partner under this Agreement by
applying the amount of any such distribution first to the payment of any unpaid
interest on all Tax Payment Loans of such Partner and then to the repayment of
the principal of all Tax Payment Loans of such Partner.
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The Partners shall have the authority to take all actions necessary to
enable the Partnership to comply with the provisions of any Withholding Tax Act
applicable to the Partnership and to carry out the provisions of this Section.
Nothing in this Section shall create any obligation on the Partners to advance
funds to the Partnership or to borrow funds from third parties in order to make
any payment on account of any liability of the Partnership under a Withholding
Tax Act.
6.6 Distributions to Non-Contributing Partners. Notwithstanding
anything to the contrary contained in this Agreement, distributions payable by
the Partnership to a Non-Contributing Partner (as defined in Section 5.2(b)
hereof) shall be distributed on behalf of such Non-Contributing Partner to each
Contributing Partner having made a Partner Loan to such Non-Contributing Partner
as set forth in Section 5.2(d) hereof until the principal of, and interest on,
each such Contributing Partner's Partner Loan has been paid in full. If there
shall be more than one Partner Loan to the Non-Contributing Partner, then
distributions to the Contributing Partners on behalf of the Non-Contributing
Partner shall be made pro rata, in the same ratio as the outstanding principal
amounts of their respective Partner Loans bear to each other. Such distributions
shall be applied on account of such Partner Loans first to interest and any
balance to principal.
ARTICLE 7. ALLOCATION OF PROFITS AND LOSSES
7.1 Allocation of Profits. After giving effect to the Regulatory
Allocations set forth in Section 7.3 of this Agreement, Profits for any fiscal
year or other period of the Partnership shall be allocated among the Partners as
follows:
(a) First, to the Partners, in an amount sufficient to
reverse the cumulative amount of any Losses allocated
to the Partners in the current and all prior fiscal
years pursuant to Section 7.2(e) of this Agreement,
allocated to each Partner in proportion to the
allocation of such Losses to such Partner;
(b) Second, to the Partners, in an amount sufficient to
reverse the cumulative amount of any Losses allocated
to the Partners in the current and all prior fiscal
years pursuant to Section 7.2(d) of this Agreement,
allocated to each Partner in proportion to the
allocation of such Losses to such Partner.
(c) Third, to the Partners, until the cumulative amount
allocated pursuant to this Section 7.1(c) for the
current and all prior fiscal years is equal to the
cumulative Additional Capital Contributions Preferred
Return for all Partners for the current and all prior
fiscal years, but only to the extent amounts have
been distributed to Partners (a) under Sections
6.2(a)(i) and 6.2(b)(i), or (b) upon liquidation, out
of amounts returned by the ▇▇▇▇▇▇▇ Limited Partner to
the Partnership pursuant to Section 6.3 and then used
by the Partnership to pay the Fund III Partners'
Additional Capital Contributions Preferred Returns;
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(d) Fourth, to the Partners, until the cumulative amount
allocated pursuant to this Section 7.1(d) for the
current and all prior fiscal years is equal to the
cumulative Priority Return of all Partners in the
current and all prior fiscal years, but only to the
extent amounts have been distributed to Partners (a)
under Sections 6.2(a)(iii) and 6.2(b)(iii), or (b)
upon liquidation, out of amounts returned by the
▇▇▇▇▇▇▇ Limited Partner to the Partnership pursuant
to Section 6.3 and then used by the Partnership to
pay the Fund III Partners' Priority Returns;
(e) Thereafter, to the Partners in proportion to their
respective Percentage Interests for the applicable
fiscal period, provided that:
(i) Profits (and, if necessary, items thereof) for any fiscal year or
other period of the Partnership shall be allocated first to ▇▇▇▇▇▇▇ Limited
Partner to the extent of any promote distribution paid by the Partnership to
▇▇▇▇▇▇▇ Limited Partner pursuant to Section 6.2(a)(iv) or 6.2(b)(v) for such
fiscal year or other period; and
(ii) The Partners intend to allocate Profits (and Losses) in such a
manner so that upon liquidation of the Partnership, each Partner's Capital
Account shall equal the amount of cash such Partner would be entitled to receive
if the Partnership sold its assets for their respective Book Values and, after
satisfying all Partnership liabilities, distributed the proceeds from such sale,
as well as all other funds of the Partnership, to the Partners pursuant to
Section 6.2(b), as adjusted by Sections 6.2(c) and 6.3 (the "Targeted
Distribution Amounts"). In order to achieve such result, the Partners, acting
jointly, with the assistance of the Partnership's tax advisors, may specially
allocate Profits (or, if necessary, items thereof) in a manner so as to cause
the Partners' Capital Accounts projected as of a jointly envisioned liquidation
date to equal the Targeted Distribution Amounts.
7.2 Allocation of Losses. After giving effect to the Regulatory
Allocations set forth in Section 7.3 hereof, Losses for any fiscal year or other
period shall be allocated among the Partners as follows:
(a) First, to the Partners, by application of a rule similar to the
rule of Section 7.1(e)(ii);
(b) Second, to the Partners, in an amount sufficient to reverse the
cumulative amount of any Profits allocated to the Partners in the current and
all prior fiscal years pursuant to Section 7.1(e) of this Agreement, allocated
to each Partner in proportion to the allocation of such Profits to such Partner;
(c) Third, to the Partners, to the extent of and in proportion to
the excess for each Partner of its Capital Account over its Unreturned
Additional Capital Contributions Account; and
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(d) Fourth, to the Partners, to the extent of and in proportion to
each Partner's Capital Account; and
(e) Thereafter, to the General Partner.
7.3 Regulatory Allocations. The following allocations ("Regulatory
Allocations") shall be made for purposes of compliance with the Regulations:
(a) Partnership Nonrecourse Deductions. Loss attributable under
Section 1.704-2(c) of the Regulations to "partnership nonrecourse liabilities"
within the meaning of Section 1.704-2(b)(1) of the Regulations shall be
allocated among the Partners in accordance with Percentage Interests.
(b) Partner Nonrecourse Deductions. Loss attributable under Section
1.704-2(i)(2) of the Regulations to "partner nonrecourse debt" within the
meaning of Section 1.704-2(b)(4) of the Regulations shall be allocated, in
accordance with Section 1.704-2(i)(l) of the Regulations, to the Partner who
bears the economic risk of loss with respect to the debt to which the Loss is
attributable.
(c) Minimum Gain Chargeback. If in any year there is a net decrease
in Minimum Gain (other than a decrease attributable to a "book up" in the Book
Value of the Partnership's assets, a decrease offset by an increase in Partner
Minimum Gain or any other decrease for which a minimum gain chargeback is not
required under Section 1.704-2(f) of the Regulations), then each Partner shall
be allocated Profits (or, if necessary, items thereof) equal to that Partner's
share of the net decrease in Minimum Gain for the year, as determined by Section
1.704-2(g)(2) of the Regulations. The items of Profit to be allocated under this
subsection are determined under Section 1.704-2(j)(2) of the Regulations. In the
event there is insufficient Profit for the year to chargeback fully each
Partner's share of the decrease in Minimum Gain, then the chargeback for the
year shall be in proportion to each Partner's share of the decrease and any
decrease that has not been charged back shall be carried over and be treated as
a decrease in Minimum Gain in the following year. This subsection is intended to
comply with the minimum gain chargeback requirement of Section 1.704-2(f) of the
Regulations and shall be interpreted consistently therewith.
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(d) Partner Minimum Gain Chargeback. If in any year there is a net
decrease in Partner Minimum Gain (other than a decrease attributable to a "book
up" in the Book Value of the Partnership's assets, a decrease offset by an
increase in Minimum Gain or any other decrease for which a Partner Minimum Gain
chargeback is not required under Section 1.704-2(i)(4) of the Regulations),
then, after the allocation set forth above in Section 7.3(c), each Partner shall
be allocated Profits (or, if necessary, items thereof) equal to that Partner's
share of the net decrease in Partner Minimum Gain for the year, as determined by
Section 1.704-2(i)(3) of the Regulations. The items of Profit to be allocated
under this subsection are determined under Section 1.704-2(j)(2) of the
Regulations. In the event there is insufficient Profit for the year to
chargeback fully each Partner's share of the decrease in Partner Minimum Gain,
then the chargeback for the year shall be in proportion to each Partner's share
of the decrease and any decrease that has not been charged back shall be carried
over and be treated as a decrease in Partner Minimum Gain in the following year.
This subsection is intended to comply with the requirement of Section
1.704-2(i)(4) of the Regulations that there be a chargeback of partner
nonrecourse debt minimum gain and shall be interpreted consistently therewith.
(e) Qualified Income Offset. In the event any Partner receives any
adjustment, allocation or distribution described in Section
1.704-1(b)(2)(ii)(d)(4), (5) or (6) of the Regulations that was not reasonably
expected at the end of the preceding year and that causes, or increases, a
deficit in the Partner's Capital Account, Profit (composed of a pro rata portion
of each item remaining after the allocations in earlier subsections of this
section) shall be allocated to that Partner in an amount and manner sufficient
to eliminate any portion of the deficit balance in the Partner's Capital Account
that is attributable to the adjustment, allocation, or distribution referred to
above. If there is insufficient Profit in any year to make the allocation called
for under this subsection, then the shortfall shall be carried over to
subsequent years and shall be treated as items to be offset in those years.
Allocations under this subsection shall be made only to the extent that a
Partner has a deficit in his, her or its Capital Account after all other
allocations provided in Article VII have been tentatively made as if this
subsection were not in the Agreement. For purposes of this subsection, a
Partner's Capital Account balance shall be increased by any amounts which such
Partner is obligated to restore or is deemed to be obligated to restore pursuant
to the next to last sentences of Sections 1.704-(2)(g)(1) and 1.704-2(i)(5) of
the Regulations, and decreased by the items described in Section
1.704-l(b)(2)(ii)(d)(4), (5) and (6) of the Regulations, to the extent such
items had not previously taken into account.
(f) Fractions Rule. All the provisions of this Article VII are
limited by and subject to Section 514(c)(9)(E) of the Code and Section
1.514(c)-2 of the Regulations (the "Fractions Rule") for all Partners which are,
or one or more of whose partners are, "qualified organizations" within the
meaning of Section 514(c)(9)(E) of the Code. No allocation shall be made under
this Agreement if, as a result of such allocation, the Partnership would fail to
comply with the Fractions Rule. Whenever an adjustment to the allocations
hereunder is required so that the allocations used by the Partnership in filing
its tax returns would be consistent with the requirements of Sections 704(b) and
514(c)(9)(E) of the Code, such adjustment shall be determined by the Partners
or, in the absence of consensus among the Partners, by the General Partner with
concurrence of the Partnership's outside accountants.
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7.4 Other Allocation Rules.
(a) Allocations Consistent with Economic Agreement. The allocations
set forth in Section 7.3 of this Agreement are required for compliance with
Treasury Regulations pertaining to partnerships. Any allocation made pursuant to
Section 7.3 shall be taken into account in subsequent allocations of Profits,
Losses and items of income, gain, loss and deduction among the Partners so that,
to the extent possible, the cumulative allocation of all items to each Partner
shall be equal to the cumulative allocation of such items that would have
occurred but for the allocation pursuant to Section 7.3. Notwithstanding the
foregoing, an allocation pursuant to this Section 7.4(a) shall be made only to
the extent that the Partners reasonably determine a need for such allocation in
order for the cumulative allocation of tax items to the Partners to be
consistent with the economic agreement among the Partners.
(b) Special Allocations on Liquidation. When applying Sections
7.1(e)(ii) and 7.2(a) of this Agreement upon the liquidation and dissolution of
the Partnership, the Partners, acting jointly, with the assistance of the
Partnership's tax advisors, are hereby authorized to allocate Profits and Losses
(or, if necessary, items thereof) not only for the fiscal year of Partnership
liquidation but also for prior years for which tax returns have not yet been
filed.
(c) Section 704(c) Allocations. When the Book Value of a
Partnership asset differs from the adjusted basis of such asset for income tax
purposes, then, solely for tax purposes, and not for purposes of adjusting
Capital Accounts, the items of income, gain, loss, deduction and credit with
respect to such asset shall be allocated among the Partners to take account of,
and to eliminate, this difference in accordance with the principles of Code
Section 704(c) and the Regulations thereunder. Such allocations may be made
using any reasonable method selected by the General Partner and permitted by the
Regulations.
(d) Section 706(d) Allocations. In the event of a reduction,
transfer and/or modification of an interest in the Partnership in accordance
with this Agreement, allocations of Profits and Losses shall be made for the
fiscal year in which the reduction, transfer and/or modification occurs by
taking into account the varying interests of the Partners in accordance with
Section 706(d) of the Code. Specifically, for such fiscal year, Profits and
Losses shall be allocated pro rata to each Partner based on the number of days
such Partner holds the reduced, transferred and/or modified Interest during such
fiscal year; provided, however, that the Partners may, in their discretion,
allocate such Profits or Losses by closing the books of the Partnership as of
the close of business on the date of reduction, transfer and/or modification.
Such allocation shall be made without regard to the date, amount or receipt of
any distributions which may have been made with respect to such reduced,
transferred and/or modified Interest.
7.5 Determination of Book Value of Partnership Assets.
(a) Except as set forth below, the Book Value of any Partnership
asset is its adjusted basis for federal income tax purposes.
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(b) The initial Book Value of any asset contributed by a Partner to
the Partnership shall be the gross fair market value of such asset at the time
of contribution, as determined by the General Partner and the Partner
contributing such asset or, in the case of a contribution of property by the
General Partner, as determined by the General Partner and the Fund III Partners.
(c) The Book Value of any asset distributed to a Partner by the
Partnership shall be the gross fair market value of such asset at the time of
distribution.
(d) Upon termination of the Partnership for federal income tax
purposes under Code Section 708(b)(2)(B), the Book Value of all the
Partnership's assets shall be adjusted by the Partnership to equal their
respective gross fair market values. In addition, the Book Values of the
Partnership's assets may be so adjusted as of the following times: (a) the
admission of a new Partner to the Partnership or acquisition by an existing
Partner from the Partnership of an additional interest in the Partnership, in
each case in exchange for more than a de minimis amount of money or property;
and (b) the distribution by the Partnership of more than a de minimis amount of
money or property to a withdrawing, retiring or continuing partner in
consideration for the retirement of all or a portion of such Partner's interest
in the Partnership; provided that an adjustment described in clause (a) or
clause (b) shall be made only if the Partners reasonably determine that such
adjustment is necessary or appropriate to reflect the relative economic
interests of the Partners in the Partnership. The General Partner shall promptly
report any such adjustment to the Limited Partners.
(e) The Book Values of Partnership assets shall be increased (or
decreased) to the extent of any adjustment to the basis of such assets pursuant
to Code Section 734(b) or Code Section 743(b) that is taken into account in
computing Capital Accounts pursuant to Section 1.704-1(b)(2)(iv)(m) of the
Regulations; provided, however, that no such adjustment to Book Values shall be
made without Approval of the Partners or a written determination by the
Partnership's outside accountants that such adjustment is required under the
Code.
(f) If the Book Value of an asset has been determined or adjusted
pursuant hereto, such Book Value shall thereafter be adjusted by the
Depreciation taken into account with respect to such asset for purposes of
computing Profits and Losses.
ARTICLE 8. MANAGEMENT; RIGHTS, POWERS,
AND OBLIGATIONS OF THE PARTNERS
8.1 Management and Control of the Partnership. Except as otherwise
provided in this Agreement, management and control of the business and the
affairs of the Partnership shall be vested in the General Partner.
8.2 Meetings of the Partners.
(a) Regular Meetings. A regular meeting of the Partners shall be
held at such place or places, on such date or dates, and at such time or times
as shall be established by the General Partner, Approved by the Partners, and
publicized among all Partners. In the absence of Approval by the Partners, a
regular meeting shall be held at the Property at 10:00 AM on the first Monday in
November of each calendar year commencing with the year 2004. A notice of such
meeting shall be required to be given to each Partner of the Partners by sending
written notice not less than ten (10) days before the meeting pursuant to the
notice provisions of this Agreement. The meeting shall be held at such place as
is designated in the notice of the meeting.
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(b) Special Meetings. Special meetings of the Partners may be
called by any of the Partners and shall be held at such place, on such date and
at such time as may be Approved by the Partners. In the absence of a place, date
or time Approved by the Partners, a special meeting shall be held at the
Property at 10:00 AM on the tenth (10th) Business Day following the date of the
notice of the Special Meeting. Notice of the place, date and time of each such
special meeting shall be given to each Partner who did not join in an Approval
by the Partners of the date, time and place of the special meeting by sending
written notice within three (3) Business Days following the Approval of the
Partners of the date, time and place thereof or, if such special meeting is held
without Approval of the Partners, not less than five (5) Business Days prior to
date of the special meeting; any notice of the special meeting shall be given
pursuant to the notice provisions of this Agreement. Unless otherwise indicated
in the notice thereof, any and all business may be transacted at a special
meeting. The requirement for such notice may be waived by any Partner and shall
be deemed waived by any Partner that participates in any special meeting.
(c) Action by the Partners. Except to the extent a unanimous vote
is specifically required by any other provision of this Agreement, all action
required or permitted to be taken by the Partners shall require the Approval of
the Partners either (i) at a duly held meeting at which a quorum is established
or (ii) by written consent if a copy of the form of such written consent has
previously been mailed or sent by facsimile transmission to each Partner to the
address or facsimile number appearing on the records of the Partnership.
(d) Quorum. At any meeting of the Partners, Partners holding ninety
one percent (91%) of the Percentage Interests shall constitute a quorum for all
purposes. If a quorum shall fail to attend any meeting, a majority of those
present may adjourn the meeting to another place, date or time, without further
notice or waiver thereof.
(e) Meeting by Telephone. At the request of the General Partner or
any Partner, the meeting of the Partners shall be held by telephone conference
or similar communications equipment.
8.3 General Partner and Officers.
(a) General Partner. ▇▇▇▇▇▇▇ General Partner shall initially be the
General Partner of the Partnership. Except as otherwise expressly stated in this
Agreement, including without limitation in Section 8.4, the General Partner
shall have the authority to take any actions of any nature.
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(b) General Partner. ▇▇▇▇▇▇▇ General Partner shall be the initial
General Partner. The General Partner shall manage the day-to-day affairs of the
Partnership and its business. The General Partner shall make all decisions for
the Partnership that are not expressly reserved for Approval by the Partners
pursuant to this Agreement.
(c) Officers. The General Partner shall have the authority to
appoint officers for the Partnership with such authority as the General Partner
may specify in writing, but in no event with more authority than the authority
of the General Partner under this Agreement. Any such officer may be removed and
his authority terminated upon notice by the General Partner.
8.4 Actions Requiring Approval of the Partners. Notwithstanding
anything to the contrary contained herein, the General Partner shall not,
without the prior Approval of the Partners, do any of the following:
(a) Budget Amendments or Variations. Adopt, amend or modify any
Budget or business plan, make any expenditures which exceed the limitations
thereof by more than ten percent of the total applicable line item in the Budget
(but not more than $50,000 in the aggregate) except in the case of (i) emergency
repairs to the Property (i.e., repairs which, if not made prior to the Approval
of the Partners, threaten material injury to the Property, to the Partnership or
to any other Persons or property); (ii) expenditures for utilities, real estate
taxes and assessments and insurance premiums with respect to the Property; (iii)
amounts required to be paid by the Partnership or any Affiliate thereof as
landlord pursuant to any lease of space in the Property previously approved by
the Partners or otherwise meeting the requirements of Section 8.5(c) below and
(iv) amounts payable by the Partnership on any loan or other legally binding
agreement by which the Partnership is bound to the extent such loan or agreement
was Approved by the Partners or entered into pursuant to the authority expressly
granted to the General Partner under this Agreement. Notwithstanding anything to
the contrary in this Section 8.4(a), the General Partner may amend or modify a
Budget Line item by more than 10% if such amendment or modification results in
less than a Five Thousand ($5,000.00) Dollar increase to such line item and no
limit shall apply to a modification of the Budget that is necessitated due to an
increase in the following line items as described above: a) real estate taxes or
other municipal impositions, b) insurance and c) debt service;
(b) Acquisition or Sale of Property. Except for leases permitted
pursuant to Section 8.4(c) below, sell, exchange or otherwise transfer or lease
all or any portion of the Partnership's property, or acquire additional
Partnership property or any interest therein; provided, however, that without
any such prior written approval, the General Partner may, to the extent
expressly authorized in the Budget, make purchases, sales, exchanges,
conveyances or transfers of tangible personalty or fixtures of the Partnership;
(c) Leases. Enter into any lease of any portion of the Property,
which lease does not conform to leasing parameters Approved by the Partners from
time to time in writing, or enter into any lease for more than 15,000 square
feet even if it does so conform to such parameters;
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(d) Encumbrances. Except for liens arising by operation of law or
except in connection with the Initial Mortgage Loan, subject all or any portion
of the Partnership's property to any mortgage, lien or other encumbrance;
(e) Borrowings. Incur or issue any borrowing, guaranty or the like
(other than the Initial Mortgage Loan) or any refinancing or replacement thereof
on similar terms and conditions;
(f) Certain Agreements. Enter into, amend or modify any of the
terms and conditions of any management, leasing or development agreement or any
other agreement with the General Partner or any of its Affiliates, including,
without limit thereto, the Management Agreement or terminate the Management
Agreement (but the foregoing shall not imply that any such agreement can be
amended or modified without the written consent of all parties to such
agreement);
(g) Legal Actions. Except with respect to action for (i) tax
protests, (ii) claims for damages of less than $100,000 or (iii) rent
collection, prosecute, waive, settle or compromise any claims or causes of
action of the Partnership against any third party (or parties), nor agree on
behalf of the Partnership to pay any disputed claims or causes of action against
the Partnership if such claims, causes of action, agreement or payment would
cause Partnership expenditures to exceed the Budget;
(h) Other. Engage in: (i) any transactions with any Affiliate of
any Partner, (ii) mergers or consolidations or (iii) acts not permitted under
this Partnership Agreement;
(i) Business of Partnership. Without the consent of all Partners:
(A) Do any act which would make it impossible to carry on
the ordinary business of the Partnership;
(B) Confess a judgment against the Partnership other than
in connection with the Initial Mortgage Loan and/or
any refinancing or replacement thereof;
(C) Possess property of the Partnership, or assign the
rights of any Partner in any Partnership property,
for other than a Partnership purpose.
(j) Tax Matters. Extend any federal or state statute of limitations
with respect to income taxation of a "partnership item", as defined in Code
Section 6231(a)(3) and the Regulations thereunder, or agree to the settlement of
a tax controversy concerning a partnership item with any federal, state or local
taxing authority.
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8.5(a) Property Acquisition Approval. The Partners hereby approve the
acquisition of the Property on terms and conditions no less favorable to the
Partnership than those set forth in the Agreement of Sale; and
8.5(b) Initial Mortgage Loan Approval. The Partners hereby approve the
Partnership entering into the Initial Mortgage Loan.
8.6 Initial Development Budget. Attached hereto as Exhibit "C" (the
"Initial Development Budget") is the preliminary development budget and business
plan for the Partnership through December 31, 2004 as proposed by the General
Partner. From and after the written approval thereof by the Fund III Partners,
the General Partner shall be authorized to make the expenditures and incur the
obligations provided for and otherwise implement the Initial Development Budget.
At least ninety (90) days prior to the commencement of each fiscal year of the
Partnership (beginning for the fiscal year 2005), the General Partner shall
cause to be prepared and shall submit to the Limited Partners a budget and
business plan in such detail as may be Approved by the Partners (but without
obligation to be more detailed than the Initial Development Budget) setting
forth the estimated receipts and disbursements (capital, operating and other) on
a cash basis and accrual basis in accordance with generally accepted accounting
principles for such fiscal year and a business plan for the forthcoming fiscal
year. At the request of any Partner, the General Partner shall meet with the
Partners at such time, date and place as the Partners holding a majority of the
Percentage Interests may designate to discuss each proposed budget. At such
meetings, the General Partner shall provide to the Limited Partners such
information and back up materials as the Partners may reasonably request
regarding each proposed budget. The Partners shall consider such budget and
business plan and shall, at least sixty (60) days prior to the commencement of
the upcoming fiscal year, approve or reject such budget and business plan with
such additions, deletions and revisions as may be Approved by the Partners. The
General Partner shall use diligent efforts to revise the proposed budget in form
and substance to conform to the changes Approved by the Partners, in its
reasonable judgment. Each budget and business plan Approved by the Partners
pursuant to this Agreement is hereafter called the "Budget". When Approved by
the Partners, the General Partner shall cause copies of the Budget to be
delivered to the Limited Partners and to implement the Budget. The General
Partner shall be authorized to make the expenditures and incur the obligations
provided for in and otherwise implement the Budget, without the need for such
implementation, expenditures or obligations to be further approved. The General
Partner shall submit the first proposed Budget to the Limited Partners for
review and approval not later than ninety (90) days prior to the commencement of
the time period to which such Budget relates. Until final approval of a Budget
by the Limited Partners, the General Partner shall be authorized to operate the
Property on the basis of the previous fiscal year's Budget, together with an
increase in such Budget equal to the actual increase in expenses associated with
real estate taxes and assessments, insurance premiums and utilities relating to
the Property. The General Partner may amend a Budget only with the prior written
Approval of the Partners.
8.7 Acquisition and Initial Mortgage Loan Budget. Attached hereto as
Exhibit "D" (the "Acquisition Budget") is the acquisition budget that shows the
sources of funds including Initial Capital Contributions of the Partners and
loan proceeds and uses of such funds in connection with pre-development
expenditures, the initial acquisition and financing of the Property. The General
Partner shall be authorized to make the expenditures and incur the obligations
provided for and otherwise implement the Acquisition Budget.
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8.8 Authority to Bind Partnership. Except as authorized in writing by
the Partners, none of the Limited Partners and no single General Partner other
than the General Partner, shall have the right or authority to act for or bind
the Partnership.
8.9 Independent Activities. Subject to any other agreement among the
parties, Partners and Affiliates of Partners may, notwithstanding the existence
of this Agreement, engage in whatever activities they choose without having or
incurring any obligation to offer any interest in such activities to the
Partnership or any Partner, and neither this Agreement nor any activity
undertaken pursuant hereto shall prevent the Partners or any Affiliate of a
Partner from engaging in any activity, or require the Partners or any Affiliate
of a Partner to permit the Partnership or any Partner to participate herein.
8.10 Private Debts. Each Partner hereby indemnifies the Partnership and
each other Partner and holds it and them harmless against any and all actions,
proceedings, costs, claims, liabilities and demands in respect of the
indemnifying Partner's own separate debts and liabilities, whether existing or
future (including, without limitation, Bankruptcy proceedings).
8.11 Indemnification.
(a) General Provisions. Except as otherwise set forth herein, the
Partners, the General Partner, officers of the Partnership, and any committee
thereof, and their respective Affiliates, officers, agents and employees (each
herein referred to as an "Indemnitee"), shall be indemnified, held harmless and
defended by the Partnership (out of Partnership assets, including the proceeds
of liability insurance) to the fullest extent permitted by applicable law
against any claim, demand, controversy, dispute, cost, loss, damage, expense
(including reasonable attorneys' fees), judgment and/or liability incurred by or
imposed upon the Indemnitee in connection with any action, suit or proceeding
(including any proceeding before any administrative or legislative body or
agency) to which the Indemnitee may be a party or otherwise involved, or with
which the Indemnitee may be threatened, by reason of any action or omission of
the Indemnitee (or the Indemnitee's employee) in connection with the conduct of
Partnership affairs. Such indemnification extends to the Indemnitee in its
capacity, at the time the cause of action arose or thereafter, as a General
Partner, a Partner, an officer of the Partnership, or any committee thereof or
as a partner, officer, member, manager, director, employee or other agent of any
other organization in which the Partnership owns an interest or of which the
Partnership is a creditor, which other organization the Indemnitee (or its
employee) serves in such capacity at the request of the Partnership (whether or
not the Indemnitee or its employee continues to serve in such capacity at the
time such action, suit or proceeding is brought or threatened). The
indemnification set forth herein shall not extend with respect to actions or
omissions of the Indemnitee (or its employee) which shall have been finally
adjudicated (by settlement or otherwise) in any such action, suit or proceeding
to have constituted actual fraud or willful misconduct or gross negligence or
the failure of General Partner to obtain and maintain the insurance coverages
specified in any Property Management Agreement or Development Agreement. In the
event of settlement of any action, suit or proceeding brought or threatened,
such indemnification shall apply to all matters covered by the settlement. The
foregoing right of indemnification shall be in addition to any rights to which
any Indemnitee may otherwise be entitled and shall inure to the benefit of the
executors, administrators, personal representatives, successors or assigns of
each such Indemnitee.
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(b) Advance Payment of Expenses. The Partnership shall pay the
expenses incurred by an Indemnitee in defending a civil or criminal action, suit
or proceeding, or in opposing any claim arising in connection with any potential
or threatened civil or criminal action, suit or proceeding, in advance of the
final disposition of such action, suit or proceeding, upon receipt of an
undertaking by such Indemnitee to repay such payment if he shall be determined
to be not entitled to indemnification therefore as provided herein; provided,
however, that in such instance the Indemnitee is not commencing an action, suit,
or proceeding against the Partnership, or defending an action, suit or
proceeding commenced against him by the Partnership or any Partner thereof or
opposing a claim by the Partnership or any Partner thereof arising in connection
with any such potential or threatened action, suit or proceeding.
(c) Insurance. The Partnership may purchase and maintain insurance
with such limits or coverages as are Approved by the Partners or required under
any loan documents or other binding contract to which the Partnership is a
party, at the expense of the Partnership and to the extent available, for the
protection of any Indemnitee against any liability incurred by such Indemnitee
in any such capacity or arising out of his status as such, whether or not the
Partnership has the power to indemnify such Indemnitee against such liability.
The Partnership may purchase and maintain insurance for the protection of any
officer, Partner, employee, consultant or other agent of any other organization
in which the Partnership owns an interest or of which the Partnership is a
creditor against similar liabilities, whether or not the Partnership has the
power to indemnify him or it against such liabilities. Any amounts payable by
the Partnership to an Indemnitee pursuant to the provisions of Section 8.11(a)
hereto shall be payable first from the proceeds of any insurance recovery
pursuant to policies purchased by the Partnership and then from the other assets
of the Partnership; provided, that the foregoing shall not affect the
Partnership's obligation to advance expenses pursuant to Section 8.11(b) hereof
in circumstances in which the insurance Partnership who has issued such policy
will not advance such expenses.
8.12 Holding of Assets. All Partnership property, whether real,
personal or mixed, owned by the Partnership shall be held in the name of the
Partnership.
8.13 Removal of the General Partner.
(a) Right to Remove
(i) The Partners shall have the right to remove the
General Partner, in accordance with the provisions of
this Section 8.13, from such office and to terminate
any Management Agreement and/or other agreement, if
any, with the General Partner or any of its
Affiliates. Effective as of the removal of the
General Partner from the status as General Partner of
the Partnership, the former General Partner shall not
have any further right to receive payment of the
Promote.
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(ii) A Majority-in-Interest of the Partners shall exercise
such rights by giving Notice thereof (a "Termination
Notice") to the General Partner. Any removal of the
General Partner pursuant to this Section 8.13(a)
shall be effective as of the date of the giving of
the Termination Notice or such later date as the
Partners shall have designated in the Termination
Notice (the "Removal Date"). Nothing in this Section
8.13(a) shall require the consent of the General
Partner. The Partners may exercise the removal right
contained in this Section 8.13(a) only upon (a) the
General Partner's commission of a criminal act or
fraud, gross negligence or willful misconduct in
performing its duties, (b) failure (x) of the General
Partner to take such actions as are necessary for the
satisfaction of the General Partner's obligations
under this Agreement including, without limit
thereto, failure to comply with the reporting
provisions of Article XIV or (y) of an Affiliate of
the General Partner to take such actions as Property
Manager under the Management Agreement, if any, as
are necessary for the satisfaction of such Property
Manager's obligations under the Management Agreement,
and the failure of Manager to cure the failure
specified in (x) or (y) above for a period of at
least thirty (30) days (or such longer period of time
not to exceed an additional one hundred twenty (120)
days as may be reasonably required to cure such
failure so long as such cure is diligently and
continuously pursued) following written instructions
from the Partners to such General Partner or Property
Manager specifying in reasonable detail those actions
which the Partners believe are necessary to fulfill
such obligations, (c) the General Partner's material
breach of this Agreement or the occurrence of an
event of default under the Management Agreement (and
termination of the Management Agreement, if the
Property Manager is an Affiliate of the General
Partner) if such breach or event of default is not
cured within a period of thirty (30) days (or such
longer period of time not to exceed an additional one
hundred twenty (120) days as may be reasonably
required to cure such failure so long as such cure is
diligently and continuously pursued) following
written notification from the Partners specifying in
reasonable detail the nature of such breach; (d) the
termination or transfer to an unaffiliated third
party of the Management Agreement by the General
Partner or the Property Manager, (e) the taking by
the General Partner of any material action expressly
requiring Approval by the Partners, without first
obtaining such approval, or (f) the Bankruptcy of the
General Partner or the Property Manager.
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(b) Upon removal of a General Partner, the replacement General
Partner shall be appointed by the Fund III Partners acting collectively.
8.14 Removal of Affiliated General Partner or Developer. Each of the
Fund III Partners shall have the independent right to remove the Property
Manager or Developer (but not the General Partner) upon either (a) the
occurrence of an Event of Default under any Management Agreement or Development
Agreement that is not cured within any applicable notice or cure period
specified therein, or (b) the failure to meet the objective performance
standards set forth on Exhibit "F" attached hereto.
ARTICLE 9. TRANSFER OF INTERESTS IN THE PARTNERSHIP
9.1 Transfer of Partner's Interest; Withdrawal of Partners.
(a) No Partner may, without the written consent of all of the
non-transferring Partners, voluntarily or involuntarily Transfer all or any part
of its Interest in the Partnership (which shall include direct or indirect
interests in such Partner), except as follows.
(i) In the case of incompetency of a Partner or the
holder of a direct or indirect interest in a Partner,
the interest of such Person shall vest in its
personal representative and, in the case of death, in
his/her/its beneficiaries. In the case of Bankruptcy
of a Partner, its Partnership Interest shall vest in
the trustee, receiver or administrator of the
bankrupt's estate.
(ii) Each Partner or the holder of a direct or indirect
interest in a Partner who is a natural person shall
have the right to Transfer all or any part of his/her
Partnership Interests to one or more charities,
his/her spouse, parents, and/or issue of any of the
foregoing and/or trusts, family partnerships or other
business entities (provided such entities remain
under the control of such Partner, holder, spouse,
parents, and/or issue) for the benefit of one or more
of himself/herself and/or one or more of his/her
spouse, parents and/or issue of any of the foregoing.
(iii) Subject to Section 9.4 hereof, each Fund III Partner
shall have the right to Transfer all or any part of
its Partnership Interests to other Fund III Partners
and/or to one or more of such Fund III Partner's
Affiliates without seeking approval or other consents
from the non- transferring Partners.
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(iv) The ▇▇▇▇▇▇▇ General Partner and the ▇▇▇▇▇▇▇ Limited
Partner are owned by ▇▇▇▇▇▇▇ Equities of Arizona, LLC
("FEA"), which, in turn is owned as described in a
certain email from ▇▇▇▇▇ ▇▇▇▇▇▇▇ to ▇▇▇▇ ▇▇▇▇▇▇ dated
September 17, 2003 and in the attachment thereto. No
interest in the ▇▇▇▇▇▇▇ Limited Partner ▇▇▇▇▇▇▇
General Partner or FEA may be Transferred if
following such Transfer ▇▇▇▇▇ ▇▇▇▇▇▇▇ fails to retain
voting control, and a capital and profits interest of
at least 51% in each such entity; Provided, however,
the death or incapacity of ▇▇▇▇▇ ▇▇▇▇▇▇▇ shall not be
considered a violation of this Agreement so long as
effective management control of both FEA and the
Property Manager vests in the hands of an
experienced, competent, real estate professional
reasonably acceptable to the majority in interest of
the Limited Partners, after giving full and fair
consideration to the other members of FEA or to such
other individuals as ▇▇▇▇▇ ▇▇▇▇▇▇▇ may have
previously designated in writing.
9.2 Substitution of Partners.
(a) Notwithstanding anything herein to the contrary, no transferee
of a Partner's Interest in the Partnership shall become a substituted Partner
with respect to the transferred Interest unless and until the General Partner
and all of the Partners entitled to participate in decisions to be made by
Partners shall have given their written consent thereto (which written consent
may be withheld by any Partner arbitrarily) and the transferee shall have:
(i) assumed all of the obligations of its predecessor
under this Agreement with respect to the Interest
transferred accruing from and after the effective
date of the transfer;
(ii) delivered to the Partners a statement, acknowledging
the assumption of such liability and that the
transferee has read the provisions of this Agreement
and intends to be legally bound as a Partner by all
the terms and conditions of this Agreement and any
amendments or modifications thereof, and shall have
executed a counterpart of the Agreement as then in
effect; and
(iii) paid all reasonable expenses (including, without
limitation, legal and accounting fees) incurred by
the Partnership in connection with such transfer,
including but not limited to the cost of the
preparation, filing and publishing of any amendment
to the Partnership's Certificate of Formation and any
fictitious name or similar registrations necessary or
desirable in connection therewith.
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9.3 Withdrawal. Except as otherwise specifically provided in this
Agreement, a Partner may not withdraw from the Partnership or have the right to
receive Partnership distributions, the return of such Partner's Capital
Contributions or the fair value of such Partner's Interest, at any time prior to
the dissolution and winding up of the Partnership.
9.4 Compliance with Securities Laws. The Partners acknowledge and
confirm that their Partnership Interests may constitute securities. The
Partnership Interests have not been registered under any federal or state
securities laws by virtue of exemptions from the registration provisions thereof
and consequently cannot be sold except pursuant to appropriate registration or
exemption from registration, as applicable. No Transfer of all or any part of
the Partnership Interest of a Partner (except a transfer upon the death,
incapacity or Bankruptcy of a Partner to his/her personal representative and
beneficiaries or pursuant to Article XII hereof), including, without limitation,
any transfer of a right to distributions, Profits or Losses to a Person who does
not become a Partner, may be made unless such Transfer (a) may be effected
without registration of the interest under the Securities Act of 1933, as
amended, and (b) does not violate any applicable federal or state securities
laws (including any investment suitability standards) applicable to the
Partnership or the Partners. In no event may any Partner Transfer all or any
portion of his Partnership Interest in violation of the provisions of applicable
securities laws.
9.5 Other Prohibited Transfers. No Partner shall sell or otherwise
Transfer its interest in the Partnership, other than pursuant to Articles V and
XII hereof, if such Transfer would (i) require the Partnership, or the Interest
being transferred, to be registered under, or otherwise to be brought in
compliance with, state or federal securities laws, (ii) cause a termination of
the Partnership for federal income tax purposes, (iii) cause any of the
transactions contemplated by this Agreement to be "prohibited transactions"
under the Employee Retirement Income Security Act of 1974, as amended from time
to time, or the regulations promulgated thereunder from time to time ("ERISA")
or the Code or the Regulations, (iv) cause any Partner to become a fiduciary, as
that term is defined in ERISA or the Code, with respect to another Partner or
cause any Fund III Partner to become a fiduciary, as that term is defined in
ERISA or the Internal Revenue Code, (v) cause the Partnership to be in breach of
or default under any mortgage, deed of trust or other security agreement
encumbering the Property or other Partnership assets, or (vi) cause the
Partnership to be classified as a publicly traded partnership under Section
7704(b) of the Code. The transferring Partner shall, prior to effecting any
transfer, give the Partnership reasonable assurances that the transferring
Partner shall pay any transfer taxes resulting from such transfer.
ARTICLE 10. DISSOLUTION AND WINDING UP OF THE PARTNERSHIP
10.1 Dissolution.
(a) The Partnership shall be dissolved and its affairs wound up
upon the happening of any of the following events:
(i) The sale or other disposition (not including an
exchange) of all or substantially all of the
Partnership's assets, except under circumstances
where all or a portion of the purchase price is
payable after the closing of the sale or disposition;
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(ii) The insolvency or Bankruptcy of the Partnership, or
an assignment by the Partnership for the benefit of
creditors;
(iii) A determination and written consent by all of the
Partners, that the Partnership should be dissolved;
or
(iv) Upon the occurrence of an event specified under the
Act as one effecting dissolution, except that where,
under the terms of this Agreement, the Partnership is
not to dissolve, then the Partnership shall
immediately be reconstituted and reformed on all the
applicable terms, conditions, and provisions of this
Agreement.
(b) After dissolution of the Partnership, the Partnership shall not
terminate until the Partnership's Certificate shall have been canceled and the
assets of the Partnership shall have been distributed as provided in Section
10.2 below. Notwithstanding the dissolution of the Partnership, prior to the
termination of the Partnership as aforesaid, the business of the Partnership and
the affairs of the Partners, as such, shall continue to be governed by this
Agreement.
10.2 Winding Up/Liquidation. Except as otherwise provided in this
Agreement, upon dissolution of the Partnership, the Partners shall liquidate the
assets of the Partnership, apply and distribute the proceeds thereof as
contemplated by this Agreement and cause the cancellation of the Partnership's
Certificate of Formation. As soon as possible after the dissolution of the
Partnership, a full account of the assets and liabilities of the Partnership
shall be taken, and a statement shall be prepared by the independent accountants
then acting for the Partnership setting forth the assets and liabilities of the
Partnership. A copy of such statement shall be furnished to each of the Partners
within ninety (90) days after such dissolution. Thereafter, the assets shall be
liquidated as promptly as is consistent with obtaining the fair value thereof
and as shall be necessary to make timely the distributions described below; and,
the proceeds from disposition of such assets shall be applied and distributed in
the following order:
(a) The Partnership shall pay its debts and its expenses of
liquidation. The Partnership shall establish or continue any reserve which the
Partners deem reasonably necessary for any liability to be satisfied in the
future or for any contingent or unforeseen liability. The Partnership shall
utilize such reserves for the payment of such liabilities and contingencies. At
the expiration of such period as the Partners shall reasonably deem advisable,
the Partnership shall distribute the balance, if any, remaining in such reserves
in accordance with Section 10.2(b); and
(b) Subject to Section 6.3 hereof, the balance, if any, shall be
distributed to the Partners in accordance with their positive Capital Account
balances, determined after taking into account all Capital Account adjustments
for the Company's taxable year during which the liquidation occurs. Any such
distribution to the Partners in respect of their Capital Accounts shall be made
in compliance with the time requirements set forth in Section
1.704-1(b)(2)(iii)(b)(2) of the Regulations.
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ARTICLE 11. BUY-SELL PROVISIONS
11.1 Buy-Sell Provisions.
(a) From and after two years following the acquisition of the
Property, the Fund III Partners may determine to sell the Property and give
notice of such determination to ▇▇▇▇▇▇▇ General Partner that they desire to do
so. If ▇▇▇▇▇▇▇ General Partner, within thirty (30) days thereafter, does not
give notice of its agreement to attempt to have the Property sold on such terms,
then any Partner shall have the right to initiate a buy-sell procedure in the
following manner. The party initiating the buy-sell procedure shall hereinafter
be referred to as the "Initiator". The party which is not the Initiator is
hereinafter referred to as the "Recipient". For purposes of this Section 11.1,
the Fund III Partners shall be treated as a single Partner and ▇▇▇▇▇▇▇ General
Partner and ▇▇▇▇▇▇▇ Limited Partner shall be treated as a single Partner.
(b) To initiate the buy-sell procedure, the Initiator must deliver
to the Recipient a written notice stating that the Initiator is initiating the
buy-sell procedure pursuant to this Article XI (the "Buy-Sell Notice").
(c) The Buy-Sell Notice shall contain at least the following:
(i) a statement that the Initiator is initiating the
buy-sell procedure pursuant to this Article XI; and
(ii) the purchase price (the "Designated Purchase Price"),
which shall be an all cash price, which the
Initiator, as a third-party buyer, would be willing
to pay for all of the assets of the Partnership as of
the date of the Buy-Sell Notice, free and clear of
all liens, and liabilities of the Partnership.
(d) The Recipient shall have the option either:
(i) to sell all of its right, title and Interest in the
Partnership (including Partner Loans) to the
Initiator for an amount equal to the amount that the
Recipient would have received if the Partnership had
sold all of its assets for the Designated Purchase
Price on the date of the Buy-Sell Notice and the
Partnership had immediately paid all Partnership
liabilities and distributed the net proceeds to each
Partner in accordance with Section 6.2(b), 6.2(c) and
6.3, if applicable, in liquidation and satisfaction
of its Interest in the Partnership; or
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(ii) to purchase all of the right, title and Interest of
the Initiator in the Partnership (including Partner
Loans) for an amount equal to the amount the
Initiator would have been entitled to receive if the
Partnership had sold all of its assets for the
Designated Purchase Price on the date of the Buy-Sell
Notice and the Partnership had immediately paid all
Partnership liabilities and distributed the net
proceeds to each Partner in accordance with Section
6.3, in liquidation and satisfaction of its Interest
in the Partnership; with the foregoing amount
calculated on the assumption that the Partnership
would not have incurred any closing costs, brokerage
costs, or other expenses in selling its assets that
would normally be incurred if the sale were an arm's
length transaction., unless actually incurred.
(e) The Recipient shall have thirty (30) days (the "Response
Period") from the date of the Buy-Sell Notice to notify the Initiator of its
election, pursuant to Section 11.1(d)(i) or 11.1(d)(ii), to sell or buy.
(f) If the Recipient shall not have notified the Initiator of the
Recipient's Election within the Response Period, then, the Recipient shall be
conclusively deemed to have elected to sell all of its right, title and Interest
in the Partnership to the Initiator at the price set forth above in Section
11.1(d)(i).
(g) If, following an election by the Recipient to purchase the
Partnership Interest of the Initiator pursuant to Section 11.1(d)(ii), the
Recipient shall have failed to consummate the purchase on the date of the
Buy-Sell Closing (as such date shall have been determined in accordance with
Section 11.1(k)) in accordance with the provisions of this Agreement, then the
Recipient shall, at the Initiator's option, to be exercised and consummated by
the Initiator within sixty (60) days after the Recipient's failure to consummate
such purchase, sell all of its right, title and Interest in the Partnership to
the Initiator, as if the Recipient had initially elected to sell pursuant to
Section 11.1(d)(i), except that the price that the Initiator would pay the
Recipient, in full payment for all of the right, title and Interest of Recipient
in the Partnership, shall be ninety percent (90%) of the amount that the
Recipient would have received if the Recipient had initially elected to sell its
interest in the Partnership to Initiator pursuant to Section 11.1(d)(i).
(h) If the Recipient shall not have elected to purchase all of the
right, title and Interest of Initiator in the Partnership in accordance with
Section 11.1(d)(ii), and the Initiator shall have failed to consummate such
purchase in accordance with the provisions of the Agreement, the Recipient shall
have the right, at its option, to purchase all of the right, title and Interest
of the Initiator in the Partnership, in accordance with Section 11.1(d)(ii),
which right shall be exercised and closed within one hundred twenty (120) days
after such failure, except that the price that the Recipient would pay to the
Initiator, in full payment for all of the right, title and interest of Initiator
in the Partnership, shall be ninety percent (90%) of the amount that the
Initiator would have received if the Recipient had initially elected to buy the
Partnership Interest of the Initiator pursuant to Section 11(d)(ii).
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(i) In lieu of purchasing Partnership Interests (and Partner Loans)
pursuant to the buy-sell procedure, the buying Partner may elect, for the
Designated Purchase Price, to cause the Partnership to convey and transfer all
of the assets of the Partnership, to the buying Partner or its designee,
provided that the buying Partner pays all realty transfer taxes, recording fees
and other costs in connection with such conveyance and transfer in excess of
those that would have been payable if Partnership Interests had been
transferred. In such event, all of the proceeds of such sale shall be
distributed to the Partner or Partners pursuant to Section 6.2(b) and 6.3 if
applicable. In any such transaction, the buying Partner shall be entitled to a
credit against the purchase price in the amount of the buying Partner's
entitlement to distributions resulting therefrom (the parties intending that the
buying Partner not be required to fund the amounts that would be returned to the
buying Partner as a Distribution immediately following the transaction).
(j) Each Partner shall pay for the fees and expenses of its own
counsel in connection with any transfers pursuant to this Article XI. Except as
otherwise provided in this Article XI, all other expenses of the transactions
contemplated by this Article XI shall be paid by the party acquiring the
Partnership Interests, except that any real estate transfer taxes, documentary,
recording tax or similar taxes on the transfer of Partnership Interests shall be
shared equally by the selling and buying Partners.
(k) The "Buy-Sell Closing" shall occur during normal business hours
at a place to be designated by the buying Partner either in New York City, New
York, southeastern Pennsylvania or southern New Jersey or at such other place as
the parties to such transaction may mutually agree (the "Closing Site"). At the
closing, the buying Partner (or the Partnership as reconstituted following the
transfer) shall simultaneously with the transfer satisfy all Partnership
obligations (including liens on the Property) which become due as a result of
such purchase and sale. No call for a Capital Contribution may be made to
provide the Partnership with funds necessary to satisfy any obligation of the
Partnership which becomes due as a result of a purchase and sale pursuant to
this Article XI. The time and date of the Closing shall be specified by the
buying Partner by at least ten (10) days prior notice to the selling Partner and
shall be on a date not later than sixty (60) days after the time prescribed in
Section 11.1(e); provided, however, that the ▇▇▇▇▇▇▇ General Partner shall have
a right to extend the date for closing for two additional thirty (30) day
periods by providing the Fund III Partners such extension at least ten (10) days
written notice of the need of such cash extension and increasing the Deposit
described in Section 11.2 below by $250,000 for each such thirty (30) day period
requested. No extension of time to close shall be effective unless the required
increase in Deposit is timely made. At the Buy-Sell Closing the selling
Partner(s) shall execute such assignments of Partnership Interest, Partner Loans
and other documents and assurances as the buying Partner may reasonably require
to consummate the sale and vest in the buying Partner or its nominee the entire
right, title and Interest of the selling Partner(s) in the Partnership;
provided, however, that all instruments executed in connection with the Buy-Sell
Closing shall be without recourse, representation or warranty whatsoever except
that each selling Partner shall (as to its own Interest only) represent that (i)
the Partnership Interest and Partner Loans being sold by it are free and clear
of all liens, encumbrances and rights of others, (ii) it has full right and
authority to sell such Partnership Interest and that the sale has been duly
authorized and (iii) that the selling party has not taken any action in
violation of this Operating Agreement or not in the ordinary course of business.
Pending the Buy-Sell Closing, the Property shall be operated and maintained and
the business of the Partnership conducted consistent with prior practices and
the then current Budget. Pending the Buy-Sell Closing, the Partners shall
cooperate with respect to the negotiation and execution of any applications and
commitments for financing to be secured by Partnership Property, provided, that
the selling Partner shall have no liability thereunder and the buying Partner
shall indemnify, defend and hold harmless the selling Partner and the
Partnership from all claims, loss and damages in connection therewith. On the
date preceding the Buy-Sell Closing, the Partnership shall make a distribution
of any Distributable Cash from Operations and Net Cash from Capital Transactions
then available pursuant to Section 6.2 hereof.
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(l) The purchase price for the interests being sold and all other
amounts payable in connection with the transactions contemplated hereby shall be
payable at the Buy-Sell Closing by federal wire of immediately available funds.
(m) At the Buy-Sell Closing, the selling Partner and the buying
Partner shall deliver favorable opinions of their respective counsel to the
effect that the transactions to occur at the Buy-Sell Closing have been duly
authorized.
11.2 Closing. Upon the determination of which Partners are to be the
purchasers, the purchasing Partners shall, within ten (10) days, pay a cash
deposit or post an irrevocable sight draft letter of credit or certificate of
deposit equal to $500,000.00 (the "Deposit") with a reputable title insurance
company selected by the purchasing Partners pursuant to an escrow agreement
acceptable to the selling and purchasing Partners, who agree to act reasonably
in connection therewith. Any cash portion of the Deposit shall be placed in an
interest bearing account at a bank mutually acceptable to the Partners and any
interest on such cash or on any certificate of deposit shall be added to, and
constitute a portion of, the Deposit for purposes of this Section. Each of the
following (unless and except to the extent waived by all of the purchasing
Partners) shall be a condition of the purchasing Partners' obligations to
proceed with any such purchase: (i) that the Partnership shall have continued to
be operated in accordance with this Agreement and all other applicable
agreements in all material respects through the date of sale, (ii) that the
purchasing Partners shall have obtained all third-party consents required in
connection with such sale, and (iii) that there shall be no suit, action or
proceeding pending on the date of sale before or by any court or governmental
body seeking to restrain or prohibit, or to impose material damages or other
relief in connection with, the sale. The Partnership Interests (and Partner
Loans) shall be purchased and the purchase price shall be paid at a Closing. At
the Closing, the Partnership Interests (and Partner Loans) shall be duly
conveyed, free of all liens and encumbrances, and the purchase price shall be
paid by wire transfer of immediately available federal funds. At the election of
the purchasing Partners, the Partnership Interests (and Partner Loans) to be
purchased may be acquired in the name of a nominee (whether or not such nominee
is an Affiliate of the purchasing Partners or any of them), provided, that (x)
the purchasing Partners shall have designated such nominee by written notice
given at least five (5) days prior to the date of purchase, (y) the buyers shall
have represented to the sellers that the nature of such nominee is not such as
to cause the sale to violate ERISA and (z) unless the sellers shall otherwise
elect, both such nominee and the purchasing Partners shall be required to
indemnify, defend and save the sellers harmless from and against any cost,
claim, charge or liability including, without limit thereto, court costs,
counsel and other consulting fees and expenses, brought against or incurred by
the sellers in the event that the representation made pursuant to clause (y)
immediately preceding shall have been false or misleading. In the event of the
failure of the selling Partners or any of them to proceed with the sale of their
Partnership Interests (and Partner Loans) at the Closing as herein provided, the
same shall constitute a default under this Agreement and the purchasing Partners
shall be entitled, at their election, by written notice given to the selling
Partners within thirty (30) days after the date of such failure, either (1) to
receive from the selling Partners as liquidated damages and their exclusive
remedy an amount equal to the Deposit, or (2) to pursue any and all remedies
available under this Agreement or at law or equity, including specific
performance. In the event of the failure of the purchasing Partners (or their
nominee) to proceed with the purchase of the Partnership Interests (and Partner
Loans) at the Closing as herein provided, the selling Partners may elect, by
written notice given to the purchasing Partners within thirty (30) days after
the date of such failure, either (1) to receive from the purchasing Partners as
liquidated damages and as their exclusive remedy an amount equal to the Deposit
(and to apply the Deposit to payment of the same), or (2) to exercise the rights
described in Sections 11.1(g) or (h) in which case the Deposit shall not be
forfeited, but at the consummation of closing, the Deposit shall be returned to
the party who posted it.
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ARTICLE 12. PROPERTY MANAGEMENT; INITIAL DEVELOPMENT;
INITIAL FINANCING
12.1 Property Management.
(a) ▇▇▇▇▇▇▇ Equities Management, LLC, an Affiliate of ▇▇▇▇▇▇▇
General Partner and ▇▇▇▇▇▇▇ Limited Partner, may be engaged by the Partnership
to provide property management services for the Property (the "Property
Manager"), pursuant to a management agreement to be Approved by the Partners
(the "Management Agreement").
12.2 INITIAL FINANCING. The Partners will endeavor to obtain a
conventional, non- recourse loan from Commerce Bank pursuant to the commitment
letter attached hereto as Exhibit "B".
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ARTICLE 13. BOOKS AND RECORDS, ACCOUNTING, REPORTS, TAX MATTERS
PARTNER MEETINGS, FISCAL YEAR, BANKING
13.1 Books and Records. The General Partner shall cause to be kept full
and accurate books of the Partnership. All books and records of the Partnership
shall be kept at the Partnership's principal office and shall be available at
reasonable times for inspection and copying by the Partners or their duly
authorized representatives. The books of the Partnership shall be kept on the
accrual basis method of accounting in accordance with generally accepted
accounting principles. The General Partner shall cause to be prepared by the
Partnership's accountants and shall deliver to the Partners the reports
described on Exhibit "E" at the times indicated thereon.
13.2 Tax Returns. No later than forty-five (45) days prior to the
filing of the Partnership's federal, state and local income and other tax
returns, the General Partner will furnish a draft to the Partners. Within
fifteen (15) days after receipt of the draft, the Partners will provide notice
to the General Partner as to whether the Partners consent to the filing of the
return consistent with the draft or object to the manner in which one or more
Partnership items are reflected in the return. The tax advisors of the Partners
will attempt to resolve any differences. If they are unable to do so, the matter
will be referred to the chief financial officers of the Partners for resolution
and they will jointly resolve any differences. In the event any differences are
not resolved prior to the date for filing any of the Partnership's tax returns,
then such returns shall be filed in the form specified by the Partnership's
independent accounting firm.
(a) The General Partner shall employ KPMG or another public
accounting firm, to be mutually agreed upon by the Partners, to prepare at the
Partnership's expense the federal and state income tax returns of the
Partnership. The General Partner shall further use its best efforts to cause the
accounting firm to:
(i) provide its best estimate of each Partner's
distributive share of all income, gains, losses,
deductions and credits of the Partnership for each
taxable year within ten (10) days following the close
of each taxable year, and
(ii) subject to and within the time periods required by
this Section 13.2, prepare and deliver to each
Partner an information reporting return (Form 1065
K-1) reflecting such Partner's distributive share of
all income, gains, losses, deductions and credits of
the Partnership for the taxable year just ended.
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13.3 Tax Matters Partner. The General Partner shall serve as the "Tax
Matters Partner" defined as having the meaning ascribed to the term "tax matters
partner" for purposes of Section 6231 of the Code. The Tax Matters Partner shall
not have the obligation to prepare the Partnership's tax returns, as such tax
returns shall be prepared in accordance with Section 13.2(a) hereof. The Tax
Matters Partner shall give prompt written notice to each Partner upon receipt of
advice that the Internal Revenue Service intends to examine or audit any tax
returns of the Partnership. The General Partner shall give prompt written notice
to each Partner upon receipt of advice that the Internal Revenue Service intends
to examine or audit any tax returns of the Partnership. The Tax Matters Partner
shall not, without the consent of the Fund III Partners:
(i) agree to extend any statute of limitations with
respect to the Partnership under Section 6229 of the
Code;
(ii) file a request for administrative adjustment
(including a request for substituted return
treatment) under Section 6227 of the Code;
(iii) file a petition for judicial review, or any appeal
with respect to any judicial determination, under
Section 6226 or 6228 of the Code;
(iv) take any action to consent to, or to refuse to
consent to, a settlement reflected in a decision of a
court; or
(v) enter into any tax settlement agreement affecting the
Partnership.
13.4 Notice of Proceedings, Filings, Meetings. The Tax Matters Partner
shall promptly give written notice to the Partners of the commencement of any
administrative or judicial proceedings involving the tax treatment of any items
of Partnership income, loss, deduction and credit, and shall further keep the
Partners fully informed of, and provide the Partners an opportunity to
participate fully in, all material developments involved in such proceedings. In
addition, the Tax Matters Partner shall give the Partners prompt written notice
of, and provide the Partners an opportunity to participate in the preparation of
any material submission to the Internal Revenue Service or to any Court in
connection with any such proceedings. The Tax Matters Partner shall also give
written notice to the Partners of its intention to meet with any representative
of the Internal Revenue Service at least thirty (30) days prior to such meeting
(or immediately upon arranging such meeting if such meeting is arranged fewer
than thirty (30) days prior to such meeting), and shall provide the Partners or
their agents, employees or accountants with an opportunity to participate in
such meeting (and shall inform any Partners who do not participate in the
meeting of the results of the meeting within two (2) Business Days after such
meeting). The Tax Matters Partner shall inform the Partners of the contents of
any material communication (oral or written) from or to the Internal Revenue
Service within two (2) Business Days of receiving or sending such communication
(or on the same day, if any action is required in response to such communication
within fewer than thirty (30) days of receipt of such communication).
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13.5 Legal Uncertainties. The General Partner shall, and any Partner
may, inform the Partners of any material legal issues or uncertainties relating
to the preparation of the Partnership's federal, state and local tax returns. If
the Partners do not agree on the proper tax treatment of any such item, the
General Partner shall submit the relevant alternatives to the Partners and shall
prepare the Partnership's returns in accordance with the treatment Approved by
the Partners or, in the absence of such approval, as proposed by the
Partnership's independent accounting firm.
13.6 Partner Returns. Subject to Section 13.13, each Partner shall file
tax returns consistent with the tax treatment of the Partnership's tax returns,
which tax treatment shall be Approved by the Partners prior to the filing of the
first required Partnership tax return or, in the absence of such approval, as
proposed by the Partnership's independent accounting firm.
13.7 Tax Elections. Except as otherwise restricted by this Agreement,
the General Partner shall cause the Partnership to make such tax elections
(including, without limitation, the election under Section 754 of the Code) as
may be Approved by the Partners or, in the absence of such approval, as proposed
by the Partnership's independent accounting firm.
13.8 Meetings. The General Partner shall call an annual meeting of all
Partners to review the status of the Partnership. Such meeting shall be held at
the time and place designated by the General Partner with the Approval of the
Partners in a written notice to all Partners.
13.9 Capital Accounts. No Partner shall have any obligation to
eliminate a deficit balance in its Capital Account at any time, or to bring its
Capital Account into any particular parity with any other Partner's Capital
Account at any time, although this sentence shall not limit a Partner's
obligations pursuant to other sections of this Agreement.
13.10 Fiscal Year. The fiscal year of Partnership shall be the calendar
year
13.11 Partnership Funds. All funds of the Partnership shall be
deposited in its name in a separate bank account or accounts or in an account or
accounts of a savings and loan association or brokerage firm as shall be
determined by the General Partner with the Approval of the Partners.
13.12 Classification as a Partnership. For so long as the Partnership
has more than one Partner, the Partnership shall be taxable as a partnership for
federal income tax purposes, as required by Treasury Regulation Section
1.301.7701-3(b)(1)(i). During such time as the Partnership would be classified
as a partnership under the foregoing sentence, neither the Partnership nor any
Partner shall take any action that would result in the Partnership being taxed
as other than a "partnership" for federal income tax purposes, including, but
not limited to, electing to be taxed as other than a "partnership" by filing
Form 8832, "Entity Classification Election."
13.13 REOC Compliance. The Partnership shall be operated to qualify at
all times as a real estate operating Partnership ("REOC") within the meaning of
Section 2510.3-101(e) of the Department of Labor Regulations promulgated under
ERISA (the "Plan Assets Regulation"). In order to continue to qualify under the
Plan Assets Regulation as a REOC after the date on which the Partnership makes
its initial long term investment of funds (the "Initial Valuation Date"), the
Partnership must qualify as a REOC (i) on any date within a period not in excess
of ninety (90) days (the "Annual Valuation Period") beginning not later than one
(1) year after the Initial Valuation Date, and (ii) on any date within each
subsequent Annual Valuation Period. The ▇▇▇▇▇▇-▇▇▇▇▇ Group shall have the
unilateral right, on behalf of the Partnership, to adopt the Annual Valuation
Period.
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13.14 UBTI. The General Partner shall use commercially reasonable
efforts, in consultation with the Partners, to conduct the affairs of the
Partnership so as to avoid generating, or to minimize the generation of,
unrelated business taxable income (determined, for this purpose, without regard
to Section 514 of the Code) to investors in the Fund III Partners.
ARTICLE 14. MISCELLANEOUS
14.1 Agreement for Further Execution. The Partners agree to sign, swear
or acknowledge any certificates or filings required by the laws of the State of
Delaware or any other state; to sign, swear or acknowledge any amendment or
cancellation of such certificate or filings whether or not such amendment or
cancellation is required by law; to sign, swear or acknowledge such other
certificates, filings, documents or affidavits of assumed name, trade name or
the like (and any amendments or cancellations thereof that may be required for
conduct of the Partnership's business); and, to cause the filing of any of the
same for record wherever such filing shall be required by law. This Section 14.1
shall not prejudice or affect the rights of the Partners to approve certain
amendments to this Agreement as herein provided.
14.2 Amendments.
(a) No alteration, modification or amendment of this Agreement
shall be made unless in writing and signed (in counterpart or otherwise) by all
Partners.
14.3 Notices.
(a) Any notice to be given under this Agreement shall be made in
writing and sent by express, registered or certified mail, return receipt
requested, postage prepaid, fax, or commercial delivery service, addressed as
set forth below:
(i) If to the Partnership:
c/▇ ▇▇▇▇▇▇▇ Equities of Arizona, L.L.C.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
With a copy to:
▇▇▇▇▇▇-▇▇▇▇▇ Partners, L.P.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇ ▇. ▇▇▇▇▇
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If to ▇▇▇▇▇▇▇ General Partner or ▇▇▇▇▇▇▇ Limited
Partner:
▇▇▇▇▇▇▇ Equities of Arizona, L.L.C.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇ Equities of Arizona, L.L.C.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇
and to:
▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
If to a Fund III Partner
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇ ▇. ▇▇▇▇▇
With a copy to:
Askot & Weiner, LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇▇▇ ▇▇▇▇▇, Esq.
(b) Any Partner may change the address to which notice is to be
sent by giving notice of such change to the Partnership in conformity with this
Section 14.3.
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(c) Any such notice shall be deemed to be delivered, given and
received for all purposes as of the date delivered if delivered by a commercial
delivery service or by confirmed fax, or as of the date on which the same was
deposited in a regularly maintained receptacle for the deposit of United States
mail, if sent by express, registered or certified mail. Any delivery by fax
shall only be deemed effective if an additional copy of such notice is sent by
commercial delivery service on the date of fax delivery.
14.4 Governing Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the Commonwealth of Pennsylvania as interpreted
by the courts of said State, notwithstanding any rules regarding choice of law
to the contrary.
14.5 Binding Nature of Agreement. Except as otherwise provided in this
Agreement, this Agreement shall be binding upon and inure to the benefit of the
Partners and their personal representatives and their permitted successors and
assigns. Notwithstanding the foregoing, except as specifically permitted by this
Agreement, neither the General Partner nor any Partner may delegate to any other
Person any rights or powers to make any decisions, or to take any actions, on
behalf of, or with respect to, the Partnership.
14.6 Additional Partners. Each substitute, additional or successor
Partner shall become a signatory hereof by signing such number of counterparts
of this Agreement and such other instrument or instruments, and in such manner,
as the Partners shall determine. By so signing, each substitute, additional or
successor Partner, as the case may be, shall be deemed to have adopted and to
have agreed to be bound by all the provisions of this Agreement; provided,
however, that no such counterpart shall be binding until it shall have been
signed by the Partnership.
14.7 Validity. In the event that all or any portion of any provision of
this Agreement shall be held to be invalid, the same shall not affect in any
respect whatsoever the validity of the remainder of this Agreement.
14.8 Entire Agreement. This Agreement constitutes the entire
understanding and agreement among the parties hereto with respect to the subject
matter hereof, and supersedes all prior and contemporaneous agreements and
understandings, inducements or conditions, express or implied, oral or written.
14.9 Indulgences, Etc. Neither the failure nor any delay on the part of
any party hereto to exercise any right, remedy, power or privilege under this
Agreement shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege preclude any other or further
exercise of the same; nor shall any waiver of any right, remedy, power or
privilege with respect to any occurrence be construed as a waiver of such right,
remedy, power or privilege with respect to any other occurrence. No waiver shall
be effective unless it is in writing and signed by the party asserted to have
granted such waiver.
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14.10 Execution in Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original as
against any party whose signature appears thereon, and all of such shall
together constitute one and the same instrument.
14.11 Paragraph. The paragraph headings in this Agreement are for
convenience only, form no part of this Agreement, and shall not affect its
interpretation.
14.12 Gender, Etc. Words used herein, regardless of the number and
gender specifically used, shall be deemed and construed to include any other
number, singular or plural, and any other gender, masculine, feminine or neuter,
as the context requires.
14.13 Number of Days. In computing the number of days for the purpose
of this Agreement, all days shall be counted, including Saturdays, Sundays and
holidays; provided, however, that if the final day of any time period falls on a
Saturday, Sunday or holiday, then such final day shall be deemed to be the next
day which is not a Saturday, Sunday or holiday.
14.14 Interpretation. No provision of this Agreement is to be
interpreted for or against any party because that party or that party's legal
representative drafted such provision.
14.15 Corporate Authority. Any corporation or trust signing this
Agreement represents and warrants that the execution, delivery and performance
of this Agreement by such corporation or trust has been duly authorized by all
necessary corporate or trustee action.
14.16 Third Party Beneficiaries. Notwithstanding anything herein to the
contrary, no provision of this Agreement is intended to benefit any party other
than the Partners hereto and their successors and assigns in the Partnership;
and, no such provision shall be enforceable by any other party.
ARTICLE 15. ARTICLE 15. COVENANTS WITH RESPECT TO SINGLE PURPOSE
BANKRUPTCY REMOTE ENTITY, INDEBTEDNESS, OPERATIONS,
FUNDAMENTAL CHANGES OF THE PARTNERSHIP
15.1 General. Notwithstanding any other provisions of this Agreement,
the Partnership shall each conduct its operations as a Single Purpose Bankruptcy
Remote Entity and as such shall take all actions necessary to cause the
Partnership to comply with, and will refrain from taking any actions in
violation of, the conditions set forth in the defined term "Single Purpose
Bankruptcy Remote Entity" (as such term is defined in Section 16.2 below).
15.2 Single Purpose Bankruptcy Remote Entity [if required by Lender].
"Single Purpose Bankruptcy Remote Entity" means a corporation, limited
partnership or limited liability Partnership which at all times since its
formation and at all times thereafter (i) was and is organized solely for the
purpose of (A) owning, holding, selling, leasing, transferring, exchanging,
operating and managing the Property and entering into the Initial Mortgage Loan;
and (B) transacting any and all lawful business for which a limited partnership
may be organized under the Act that is incident, necessary and appropriate to
accomplish the foregoing.
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15.3 Representations and Warranties of Partnership. The Partnership
represents, warrants and covenants as of the date of hereof and (except for
items (f) and (m), which are representations made only as of the date hereof,
and are not continuing covenants) until such time as the indebtedness secured
hereby is paid in full, that the Partnership:
(a) Does not own and will not own any assets other than (i) the
Property, and (ii) incidental personal property necessary for the operation of
the Property, and (iii) the cash proceeds thereof;
(b) Is not engaged and will not engage in any business other than
the ownership, management and operation of the Property;
(c) Will not enter into any contract or agreement with any
Affiliate of the Partnership or any Affiliate of the General Partner except upon
terms and conditions that are intrinsically fair and substantially similar to
those that would be available on an arms-length basis with third parties other
than an Affiliate;
(d) Has not incurred and will not incur any debt, secured or
unsecured, direct or contingent (including guaranteeing any obligation), other
than (i) the indebtedness secured hereby, and (ii) Affiliate advances or trade
payables or accrued expenses incurred in the ordinary course of business of
operating the Property; no other debt may be secured (senior, subordinate or
pari passu) by the Property;
(e) Has not made and will not make any loans or advances to any
third party (including any Affiliate);
(f) Is solvent and reasonably expects to be able to pay its debts
from its assets as the same shall become due;
(g) Has done or caused to be done and will do all things necessary
to preserve its existence, and will not, nor will any Partner thereof, amend,
modify or otherwise change its Certificate of Formation, Operating Agreement, or
other organizational documents in a manner which adversely affects the
Partnership's existence as a single purpose bankruptcy remote entity;
(h) Shall continuously maintain the Partnership's existence and
right to do business in the state were the Property is located;
(i) Will conduct and operate its business as presently conducted
and operated;
(j) Will maintain books and records and bank accounts separate from
those of its affiliates, including its general partners;
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(k) Will be, and at all times will hold itself out to the public
as, a legal entity separate and distinct from any other entity (including any
Affiliate thereof, including any General Partner or any Affiliate of any manager
of the Partnership);
(l) Will file its own tax returns;
(m) Has adequate capital for the normal obligations reasonably
foreseeable in a business of its size and character and in light of its
contemplated business operations;
(n) Will not seek, acquiesce in; or suffer or permit the
dissolution or winding up, in whole or in part, of the Partnership;
(o) Will not enter into any transaction of merger or consolidation,
or acquire by purchase or otherwise all or substantially all of the business or
assets of, or any stock or beneficial ownership of, any entity;
(p) Will not commingle the funds and other assets of the
Partnership with those of the General Partner, any Affiliate or any other
Person;
(q) Has and will maintain its assets in such a manner that it is
not costly or difficult to segregate, ascertain or identify its individual
assets from those of any Affiliate or any other Person; and
(r) Does not and will not hold itself out to be responsible for the
debts or obligations of any other Person.
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IN WITNESS WHEREOF, the undersigned have set their hands and seals as
of the day and year first above written.
PARTNERS:
▇▇▇▇▇▇▇ HARRISBURG GENERAL
PARTNER INC, a Pennsylvania corporation
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, President
▇▇▇▇▇▇▇ HARRISBURG LIMITED
PARTNERSHIP, LP, a Pennsylvania limited
partnership
By: ▇▇▇▇▇▇▇ HARRISBURG GENERAL
PARTNER INC, a Pennsylvania corporation
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, President
▇▇▇▇▇▇-▇▇▇▇▇ REAL ESTATE FUND III, L.P.
By: ▇▇▇▇▇▇-▇▇▇▇▇ Group III, L.P.,
its general partner
By: ▇▇▇▇▇▇-▇▇▇▇▇ Group III, LLC,
its general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
-46-
▇▇▇▇▇▇-▇▇▇▇▇ REAL ESTATE
PARALLEL FUND III, L.P.
By: ▇▇▇▇▇▇-▇▇▇▇▇ Group III, L.P.,
its general partner
By: ▇▇▇▇▇▇-▇▇▇▇▇ Group III, LLC,
its general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
▇▇▇▇▇▇-▇▇▇▇▇ CAPITAL REAL
ESTATE FUND III, L.P.
By: ▇▇▇▇▇▇-▇▇▇▇▇ Group III, L.P.,
its general partner
By: ▇▇▇▇▇▇-▇▇▇▇▇ Group III, LLC,
its general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
▇▇▇▇▇▇-▇▇▇▇▇ REAL ESTATE
EQUITY FUND III, L.P.
By: ▇▇▇▇▇▇-▇▇▇▇▇ Group III, L.P.,
its general partner
By: ▇▇▇▇▇▇-▇▇▇▇▇ Group III, LLC,
its general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
-47-
SCHEDULE 8.5A
DESCRIPTION OF PURCHASE AND SALE AGREEMENTS
EXHIBIT "A"
PARTNERS
Percentage Initial Capital
Name and Address Interest Contribution
---------------- -------- ------------
▇▇▇▇▇▇▇ Harrisburg General Partner Inc. 1% $144,000
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇-▇▇▇▇▇ Real Estate 73.6542% $10,635,667
Fund III, L.P.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇-▇▇▇▇▇ Real Estate 1.65861% $239,503
Parallel Fund III, L.P.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇-▇▇▇▇▇ Capital 10.87938% $1,570,982
Real Estate Fund III, L.P.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇-▇▇▇▇▇ Real Estate 3.80781% $549,848
Equity Fund III, L.P.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ Harrisburg Limited
Partnership, LP 9% $1,300,000
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
TOTAL 100% $14,440,000
EXHIBIT "B"
INITIAL MORTGAGE LOAN
EXHIBIT "C"
INITIAL OPERATING/DEVELOPMENT BUDGET
EXHIBIT "D"
PRE-CLOSING/ACQUISITION BUDGETS
Sources of Funds: Uses of Funds:
EXHIBIT "E"
REPORTING REQUIREMENTS FOR PROPERTY
---------------------------------------------------------------------------- ---------------------------------------
TASK DUE
---------------------------------------------------------------------------- ---------------------------------------
1. INCOME & EXPENSE STATEMENT (Monthly and YTD Actual vs. Budget Monthly/20th day following month end
---------------------------------------------------------------------------- ---------------------------------------
2. BALANCE SHEET Monthly/20th day following month end
---------------------------------------------------------------------------- ---------------------------------------
3. VARIANCE ANALYSIS (LINE ITEMS 5% OR GREATER) Monthly/20th day following month end
---------------------------------------------------------------------------- ---------------------------------------
4. STATEMENT OF CASH FLOW (Monthly and YTD Actual vs. Budget Monthly/20th day following month end
---------------------------------------------------------------------------- ---------------------------------------
5. MANAGEMENT FEE CALCULATION Monthly/20th day following month end
---------------------------------------------------------------------------- ---------------------------------------
6. AGED ACCOUNTS RECEIVABLE Monthly/20th day following month end
---------------------------------------------------------------------------- ---------------------------------------
7. ACCOUNTS RECEIVABLE ANALYSIS Quarterly/30th day following month end
---------------------------------------------------------------------------- ---------------------------------------
8. RENT ROLL Monthly/20th day following month end
---------------------------------------------------------------------------- ---------------------------------------
9. LEASING ACTIVITY AND OCCUPANCY REPORT Monthly/20th day following month end
---------------------------------------------------------------------------- ---------------------------------------
10. ANALYSIS OF ESCROWS (INSURANCE, REAL ESTATE TAXES, and Quarterly/30th day following end of
REPLACEMENT RESERVES) quarter
---------------------------------------------------------------------------- ---------------------------------------
11. CONSTRUCTION COST REPORT Monthly/20th day following month end
BUDGET vs. ACTUAL
BID/EST./CONTRACTS
CHANGE ORDER LOG
DRAW REQUEST
PROGRESS PHOTOGRAPHS
UPDATED CRITICAL PATH SCHEDULE
---------------------------------------------------------------------------- ---------------------------------------
12. MANAGEMENT REPORT
a. Economic Analysis
b. Market Update Quarterly/30th day following end of
c. Leasing Status quarter
d. Construction Status
e. Pertinent Activity
---------------------------------------------------------------------------- ---------------------------------------
13. DETAILED OPERATING AND CAPITAL BUDGET Annual
Preliminary -- 90 days prior to
year end.
Final -- 45 days prior to year
end
---------------------------------------------------------------------------- ---------------------------------------
14. TAX RETURNS FEBRUARY 15
---------------------------------------------------------------------------- ---------------------------------------
15. Annual Financial Statements (audited by KPMG, if requested by FEBRUARY 1
▇▇▇▇▇▇-▇▇▇▇▇)
---------------------------------------------------------------------------- ---------------------------------------
EXHIBIT "F"
OBJECTIVE PERFORMANCE STANDARDS
OBJECTIVE PERFORMANCE STANDARD FOR PROPERTY MANAGER.
Failure to achieve 85% of Net Operating Income set forth in the Approved
Operating Budget for four (4) out of any six (6) consecutive calendar quarters,
excluding failure resulting from casualty events (including war or terrorist
damage), anchor tenant bankruptcy or insolvency, labor shortages or strikes, and
acts of God.
