Authority of General Partner. A. Except to the extent otherwise provided herein, including, without limitation, Sections 5.3A, 5.4 and 5.5, the General Partner for, and in the name of, and on behalf of, the Partnership is hereby authorized: (i) to enter into any kind of activity and to perform and carry out contracts of any kind necessary to, or in connection with, or incidental to the accomplishment of the purposes of the Partnership, so long as said activities and contracts may be lawfully carried on or performed by a limited partnership under applicable laws and regulations; (ii) to engage Persons, including the Sponsors as provided in Article IX, to provide services or goods to the Partnership, upon such terms as the General Partner deems fair and reasonable and in the best interest of the Partnership, provided, however, that, as to services or goods provided by a Sponsor (except for those services specifically authorized under the NASAA Guidelines to be performed by a Sponsor), (a) the compensation for such services or goods must be the lesser of the cost of such services or goods to the Sponsor or ninety percent (90%) of the competitive price that would be charged by non-affiliated persons or entities rendering similar types and quality of services in the same or comparable geographic locations; (b) the compensation and other terms of such contracts shall be fully disclosed to the Investors in the reports of the Partnership; (c) the Sponsor must have been previously engaged in the business of providing such services or goods, independent of the Partnership and as an ongoing business; (d) all such transactions shall be embodied in a written contract that describes the services or goods to be provided and the compensation to be paid, which contract may only be modified by the Majority Vote of the Investors, and ,which contract shall permit termination without penalty on sixty (60) days notice; and (e) except for those services to be provided under agreements referred to in this Agreement or the Prospectus, any services provided by a Sponsor will be provided only under extraordinary circumstances where services are not available elsewhere; (iii) to acquire by lease or purchase, improve, develop, own, construct, finance, maintain, mortgage, lease or exchange incident to a tax-free swap any real estate and any personal property necessary, convenient or incidental to the accomplishment of the purposes of the Partnership, including without limitation, any Property; (iv) to grant options with respect to, sell, convey, or assign any Property or any other real estate or personal property necessary, convenient or incidental to the accomplishment of the purposes of the Partnership; (v) to execute any and all agreements, contracts, documents, certifications and instruments necessary or convenient in connection with the acquisition, development, construction, management, maintenance and operation of any Property, including without limitation, the Investment Advisory Agreement and the Leases; (vi) to borrow money and issue evidences of indebtedness in furtherance of any or all of the purposes of the Partnership, and to secure the same by deed of trust, mortgage, security interest, pledge or other lien or encumbrance on any Property or any other assets of the Partnership and to borrow money on the general credit of the Partnership for use in the business of the Partnership and to take any action and enter into any agreement necessary or advisable in connection with such borrowing; (vii) to repay in whole or in part, negotiate, refinance, recast, increase, renew, modify or extend any secured, or other indebtedness affecting any Partnership Property and in connection therewith to execute any extensions, renewals or modifications of any evidences of indebtedness secured by deeds of trust, mortgages, security interests, pledges or other encumbrances covering any Partnership Property or assets, provided, however, that it is the Partnership's objective to acquire the Properties on an all-cash basis and the General Partner does not anticipate that it will be necessary to borrow money to acquire the Properties or to maintain the Partnership's investment in the Properties; (viii) to engage a real estate agent (including a Sponsor) to sell any Partnership Property or assets or portions thereof upon such terms and conditions as are deemed fair and reasonable by the General Partner and to be in the best interest of the Partnership, and to pay reasonable compensation for such services; provided, however, that any real estate commission paid shall not exceed the lesser of the competitive real estate commission for like properties located in the same geographic area or six percent (6%) of the contract price for the Sale of any Partnership Property or assets, and, in addition, if a Sponsor provides substantial services in such regard, to pay the Sponsor up to one-half of such real estate commission, provided, however, that the payment of such real estate commission to the Sponsor shall be subordinated to the payment to Investors of their Adjusted Capital Balance plus the unpaid portion, if any, of their Preferred Return; (ix) to recognize transferees of Units as Investors and to admit substitute Limited Partners in accordance with the terms described in the Prospectus and Article VII of this Agreement; (x) to invest Working Capital Reserves and, pending the investment of the Partnership's assets in the Properties, to invest the Partnership's assets (excluding Working Capital Reserves), in interest-bearing accounts and short-term investments, including obligations of federal, state and local governments and their agencies, regulated investment companies, commercial paper and certificates of deposit of federally-insured commercial banks, savings banks or savings and loan associations; provided, however, that such investments are short-term, highly-liquid and provide appropriate safety of principal; (xi) to purchase and cancel or otherwise retire or dispose of the Partnership Interests or Units of any Partner or Investor according to the provisions of this Agreement; (xii) to execute and deliver all documents necessary or appropriate (a) for the sale of Units, including the Prospectus and filings under the Securities Act of 1933 and any other federal and state laws relating to the sale of securities and (b) to file state and local tax returns at the Partnership level on behalf of the Investors and Partners; (xiii) to require Investors to become Limited Partners (in which case the General Partner shall have the power to amend this Agreement without the Majority Vote of the Investors) and to take such other action with respect to the manner in which Units are being or may be transferred or traded as may be necessary or appropriate to preserve the tax status of the Partnership as a partnership for federal income tax purposes and the tax treatment of the Investors as Partners (but such action shall be taken only to the minimum extent required by an opinion of Counsel and only with the Majority Vote of Investors if the changes would adversely affect the Investors); (xiv) to take such steps (including amendment of this Agreement) as the General Partner determines are advisable or necessary and will not result in any material adverse effect on the economic position of a majority in interest of the Investors with respect to the Partnership in order to preserve the tax status of the Partnership as a partnership for federal income tax purposes and the tax treatment of the Investors as Partners, including, without limitation, removing the Units from public trading markets and imposing restrictions on transfers of Units or Interests (provided such restrictions on transfers do not cause the Partnership's assets to be deemed "plan assets" within the meaning of ERISA) (but such action shall be taken only to the minimum extent required by an opinion of Counsel and only with the Majority Vote of Investors if the changes would adversely affect the Investors); (xv) to establish and maintain the Working Capital Reserves described in Section 3.3E; (xvi) to pay or reimburse any reasonable out-of-pocket expenses incurred by any Affiliate of the General Partner in connection with any report pursuant to Section 10.3, provided that no fee shall be paid to any Affiliate in connection with any such report;
Appears in 3 contracts
Samples: Limited Partnership Agreement (Realty Parking Properties Lp), Limited Partnership Agreement (Realty Parking Properties Lp), Limited Partnership Agreement (Realty Parking Properties Lp)
Authority of General Partner. A. Except to the extent otherwise provided herein, including, without limitation, Sections 5.3A, 5.4 and 5.5, the General Partner for, and in the name of, and on behalf of, the Partnership is hereby authorized:
(i) to enter into any kind of activity and to perform and carry out contracts of any kind necessary to, or in connection with, or incidental to the accomplishment of the purposes of the Partnership, so long as said activities and contracts may be lawfully carried on or performed by a limited partnership under applicable laws and regulations;
(ii) to engage Persons, including the Sponsors a Sponsor as provided in Article IX, to provide services or goods to the Partnership, upon such terms as the General Partner deems fair and reasonable and in the best interest of the Partnership, provided, however, that, as to services or goods provided by a Sponsor (except for those services for which compensation is specifically authorized under the NASAA Guidelines to be performed by a Sponsorin Sections 9.1 and 9.2 of this Agreement), (a) the compensation for goods or services must be necessary to the prudent operation of the Partnership, (b) the compensation, price or fee must be equal to either (1) the lesser of (A) the cost of such services or goods to such Sponsor or (B) ninety percent (90%) of the competitive price that would be charged by non-affiliated persons or entities rendering similar services in the same or comparable geographic location or (C) ninety percent (90%) of the compensation, price or fee charged by such Sponsor for rendering comparable services or selling or leasing comparable goods on competitive terms or (2) if at least ninety-five percent (95%) of gross revenues attributable to the business of rendering such services or selling or leasing such goods are derived from persons or entities other than Affiliates, the compensation, price or fee charged by any non-affiliated persons or entities who is rendering comparable services or selling or leasing comparable goods on competitive terms in the same geographic location; (c) all such transactions shall be embodied in a written contract that precisely describes the services or goods to be provided and the compensation to be paid, which contract may only be modified by the Majority Vote of the Investors, and which contract shall permit termination without penalty on sixty (60) days notice; (d) the goods and services to be provided and the written contract referred to in subparagraph (c) above and the compensation and other terms of such contracts must be fully disclosed in the Prospectus; (e) the Sponsor must have been previously engaged in the business of rendering such services or selling or leasing such goods as an ordinary and ongoing business for a period of at least three years; (f) the Sponsor must receive at least thirty-three percent (33%) of gross revenues for such goods or services from persons or entities other than Affiliates; and (g) except for those services to be provided pursuant to Subsection 5.2(A)(ii)(a)-(f) above and under agreements providing the compensation referred to in Sections 9.1 and 9.2 of this Agreement, any additional goods and services provided by a Sponsor will be provided only (1) under extraordinary circumstances, (2) if the compensation, price or fee is competitive with the compensation, price or fee of any non-affiliated persons or entities who is rendering comparable services or selling or leasing comparable goods on competitive terms which could not reasonably be made available to the Partnership, (3) if the fees and other terms of the contract are fully disclosed, (4) if the Sponsor has been previously engaged in the business of rendering such services or selling or leasing such goods, independently of the Partnership and as an ordinary and ongoing business, (5) if the compensation to be paid to the Sponsor equals the lesser of the cost of such services or goods to the such Sponsor or ninety percent (90%) of the competitive price that would be charged by non-affiliated persons or entities rendering similar types and quality of services in the same or comparable geographic locations; , (b6) the compensation and other terms of such contracts shall be fully disclosed to the Investors in the reports of the Partnership; if there is compliance with Subsection 5.2(A)(ii)(a) and (c) the Sponsor must have been previously engaged in the business of providing such services or goods, independent of the Partnership and as an ongoing business; (d) all such transactions shall be embodied in a written contract that describes the services or goods to be provided and the compensation to be paid, which contract may only be modified by the Majority Vote of the Investors, and ,which contract shall permit termination without penalty on sixty (60) days notice; and (e) except for those services to be provided under agreements referred to in this Agreement or the Prospectus, any services provided by a Sponsor will be provided only under extraordinary circumstances where services are not available elsewhereabove;
(iii) to acquire by lease or purchase, improve, develop, own, construct, finance, maintain, mortgage, lease or exchange incident to a tax-free swap any real estate and any personal property necessary, convenient or incidental to the accomplishment of the purposes of the Partnership, including without limitation, any Property;
(iv) to grant options with respect to, sell, convey, or assign any Partnership Property or any other real estate or personal property necessary, convenient or incidental to the accomplishment of the purposes of the Partnership;
(v) to execute any and all agreements, contracts, documents, certifications and instruments necessary or convenient in connection with the acquisition, development, construction, management, maintenance and operation of any Partnership Property, including without limitation, the Investment Advisory Parking Consulting Agreement and the Leases;
(vi) to borrow money and issue evidences of indebtedness in furtherance of funds secured by any or all of the purposes Partnership Properties; to mortgage, pledge or otherwise hypothecate a portion or all of the PartnershipPartnership Properties in connection with such borrowings, and including without limitation to secure the same by deed of trust, mortgage, security interest, pledge or other lien or encumbrance on any Partnership Property or any other assets of the Partnership and Partnership; to borrow money funds on the general credit of the Partnership for use in the business Partnership; to issue evidences of the Partnership indebtedness; and to take any action and enter into any agreement necessary or advisable in connection with such borrowingborrowings; such funds may be borrowed from the General Partner, the Consultant, or any of their Affiliates, banks, other institutional lenders or private lenders, in order to complete the investment of the Net Proceeds of the Offering, to supplement working capital reserves, to make distributions to Investors, for use in the business of the Partnership or in furtherance of any or all of the purposes of the Partnership, including without limitation, to repurchase Units as long as such repurchase does not materially impair the capital or operation of the Partnership;
(vii) to repay in whole or in part, negotiate, refinance, recast, increase, renew, modify or extend any secured, or other indebtedness affecting any Partnership Property and in connection therewith to execute any extensions, renewals or modifications of any evidences of indebtedness secured by deeds of trust, mortgages, security interests, pledges or other encumbrances covering any Partnership Property or assets, provided, however, that it is the Partnership's objective to acquire the Properties on an all-cash basis and the General Partner does not anticipate that it will be necessary to borrow money to acquire the Properties or to maintain (although the Partnership's investment in General Partner may obtain financing and place mortgages on the PropertiesProperties at a later date);
(viii) to engage a real estate agent person (including a SponsorSponsor or the Consultant) to sell any Partnership Property or assets or portions thereof upon such terms and conditions as are deemed fair and reasonable by the General Partner and to be in the best interest of the Partnership, and to pay reasonable compensation for such services; provided, however, that any real estate commission the total compensation paid to all persons (including the Consultant) shall be limited to a Competitive Real Estate Commission, not to exceed the lesser of the competitive real estate commission for like properties located in the same geographic area or six percent (6%) of the contract price for the Sale of any Partnership Property or assets, and, in addition, if a Sponsor provides substantial amount of the services in such regardthe sales effort, to pay the Sponsor up to one-half of such real estate commissionthe Competitive Real Estate Commission, not to exceed 1.5%, provided, however, that the payment of such real estate commission to the Sponsor shall be subordinated to the payment to Investors of their Adjusted Capital Balance plus a six percent (6%) annual cumulative return; if the unpaid portionSponsor participates with an independent broker on resale, if any, of their Preferred Returnthe subordination requirement shall apply only to the commission earned by the Sponsor;
(ix) to recognize transferees of Units as Investors and to admit substitute Limited Partners in accordance with the terms described in the Prospectus and Article VII of this Agreement;
(x) to invest Working Capital Reserves and, pending the investment of the Partnership's assets in the Properties, to invest the PartnershipPart- nership's assets (excluding in Interim Investments as determined by the General Partner in its sole discretion and to similarly invest the Working Capital Reserves), in interest-bearing accounts and short-term investments, including obligations of federal, state and local governments and their agencies, regulated investment companies, commercial paper and certificates of deposit of federally-insured commercial banks, savings banks or savings and loan associations; provided, however, that such investments are short-term, highly-liquid and provide appropriate safety of principal;
(xi) to purchase and cancel or otherwise retire or dispose of the Partnership Interests or Units of any Partner or Investor according to the provisions of this AgreementAgreement and as described in the Prospectus;
(xii) to execute and deliver all documents necessary or appropriate (a) for the sale of Units, including the Prospectus and filings under the Securities Act of 1933 and any other federal and state laws relating to the sale of securities and (b) to file state and local income tax returns at the Partnership level on behalf of the Investors and Partners;
(xiii) to require Investors to become Limited Partners (in which case the General Partner shall have the power to amend this Agreement without the Majority Vote of the Investors) and to take such other action with respect to the manner in which Units are being or may be transferred or traded as may be necessary or appropriate to preserve the tax status of the Partnership as a partnership for federal income tax purposes and the tax treatment of the Investors as Partners (but such action shall be taken only to the minimum extent required by determined advisable pursuant to an opinion of Counsel and only with the Majority Vote of Investors if the changes would adversely affect the Investors);
(xiv) to take such steps (including amendment of this Agreement) as the General Partner determines are advisable or necessary and will not result in any material adverse effect on the economic position of a majority in interest of the Investors with respect to the Partnership in order to preserve the tax status of the Partnership as a partnership for federal income tax purposes and the tax treatment of the Investors as Partners, including, without limitation, removing the Units from public trading markets and imposing restrictions on transfers of Units or Interests (provided such restrictions on transfers do not cause the Partnership's assets to be deemed "plan assets" within the meaning of ERISA) (but such action shall be taken only to the minimum extent required by determined advisable pursuant to an opinion of Counsel and only with the Majority Vote of Investors if the changes would adversely affect the Investors);
(xv) to establish and maintain the Working Capital Reserves described in Section 3.3E; ;
(xvi) to pay or reimburse any reasonable out-of-pocket expenses incurred by any Affiliate of the General Partner or any of its Affiliates in connection with any report pursuant to Section 10.3, provided that such payment or reimbursement shall not exceed the lesser of (a) the cost of such services to the General Partner or such Affiliate or (b) ninety percent (90%) of the amount the Partnership would be required to pay to independent parties for comparable report preparation in the same geographic location and no fee profit shall be paid to made by the General Partner or any Affiliate in connection with any such report;
(xvii) upon the Majority Vote of the Investors to the matters set forth in Sections 5.4A(xvi), 5.4A(xvii) or 5.4A(xviii), to take any actions to the extent authorized by the Investors to facilitate the purposes described in such sections, including, without limitation, amendments to this Agreement to change the dates upon which transfers of Units will be recognized, and the General Partner shall give prior written notice to the Investors of any such amendment;
(xviii) to take such steps as the General Partner determines are advisable or necessary and will not result in any material adverse effect on the economic position of a majority in interest of the Investors with respect to the Partnership to restructure the Partnership and its activities to obtain a prohibited transaction exemption from the Department of Labor or to comply with any exemption in final plan asset regulations adopted by the Department of Labor, including, but not limited to, establishing a fixed percentage of Units permitted to be held by qualified plans or other tax-exempt investors or discontinuing sales to such entities after a given date, in the event that either the assets of the Partnership constitute "plan assets" for purposes of ERISA or the transactions contemplated hereunder constitute prohibited transactions under ERISA or the Code;
(xix) invest in general partnerships or joint ventures with non-Affiliates that own or operate one or more particular properties if the Partnership, alone or together with any publicly registered Affiliate of the Partnership meeting the requirements of Subsection 5.2(A)(xx) below, acquires a controlling interest in such general partnership or joint venture, but in no event shall duplicate fees be permitted. For purposes of this Subsection 5.2(A)(xix) and Subsection 5.2(A)(xxii) below, "controlling interest" means an equity interest possessing the power to direct or cause the direction of the management and policies of the general partnership or joint venture, including the authority to: (a) review all contracts entered into by the general partnership or joint venture that will have a material effect on its business or property; (b) cause a sale or refinancing of the property or its interest therein subject in certain cases where required by the partnership or joint venture agreement, to limits as to time, minimum amounts and/or a right of first refusal by the joint venture partner or consent of the joint venture partner; (c) approve budgets and major capital expenditures, subject to a stated minimum amount; (d) veto any sale or refinancing of the property, or, alternatively, to receive a specified preference on sale or refinancing proceeds; and (e) exercise a right of first refusal on any desired sale or refinancing by the joint venture partner of its interest in the property except for transfer to an Affiliate of the joint venture partner.
Appears in 3 contracts
Samples: Partnership Agreement (Realty Parking Properties Ii Lp), Limited Partnership Agreement (Realty Parking Properties Ii Lp), Limited Partnership Agreement (Realty Parking Properties Ii Lp)
