Special Rights of the Special Limited Partner. (a) Notwithstanding any other provisions herein (other than Section 13.8), to the extent the law of the State is not inconsistent, the Special Limited Partner shall have the right, subject to any Requisite Approvals, to: (i) dissolve the Partnership provided, however, that such dissolution shall not be caused by the Special Limited Partner unless the General Partner has violated a material provision of any Project Document, which violation has not been cured within any applicable cure period specified; (ii) remove any General Partner and elect a new General Partner upon the occurrence of a Material Event; (iii) continue the business of the Partnership with a substitute General Partner, provided that the General Partner has been removed pursuant to Section 4.5(a)(ii) above; and (iv) approve or disapprove the sale of all or substantially all of the assets of the Partnership. (b) Upon the removal of a General Partner for cause pursuant to Section 4.5(a)(ii), (i) without any further action by any Partner, the Special Limited Partner shall cause an Affiliate automatically to become a General Partner (the "Substitute General Partner") and acquire in consideration of a cash payment of $100 such portion of the Interest of the removed General Partner as counsel to the Special Limited Partner shall determine is the minimum appropriate interest in order to assure the continued status of the Partnership as a partnership under the Code and under the Act; (ii) the remaining portion of the economic Interest of the removed General Partner shall be converted to that of a special Limited Partner and shall be transferred to the Limited Partner or a designee of the Limited Partner to the extent necessary to compensate on a present value basis the Limited Partners for the action of such General Partner leading to its removal, or for the fact of its violation of the terms of this Agreement (including the cost, if any, of locating and retaining a new General Partner), not as a penalty but as damages to compensate the Partnership, provided, however, that the parties hereto agree that for events set forth in clauses (ii) (except if caused due to the Bankruptcy of the General Partner), (vi) or (viii) of the definition of Material Event herein, the entire remaining economic Interest of the removed General Partner shall be forfeited to the Partnership and for all other applicable events, the size of the transferred interest shall be determined by arbitration. Such arbitration shall be conducted in accordance with the Rules of Commercial Arbitration of the American Arbitration Association by a single arbitrator appointed pursuant to those rules. The arbitration shall take place in the City of Philadelphia, Pennsylvania; and (iii) the Substitute General Partner shall automatically be irrevocably delegated all of the powers and duties of the General Partners pursuant to Section 6.13. A General Partner so removed or converted to a special Limited Partner will not be liable as a general partner for any obligations of the Partnership incurred after the effective date of its removal, but shall remain liable for all obligations incurred prior to its removal or damages flowing from its acts or omissions prior to its removal. Such a special Limited Partner shall have no rights other than the right to receive the allocable share of any Profits, Losses, Tax Credits or distributions of the Partnership to which the General Partner would have been entitled with respect to the Interest (or portion thereof) that was converted into a special Limited Partner interest if no such conversion had occurred, and shall not be considered to be a Special Limited Partner for the purpose of exercising any rights reserved to the Special Limited Partner under this Agreement or sharing the benefits allocated to the Special Limited Partner under Article X hereof and shall not participate in the votes or consents of the Limited Partners hereunder. Each General Partner hereby grants to the Special Limited Partner an irrevocable (to the extent permitted by applicable law) power of attorney coupled with an interest to execute and deliver any and all documents and instruments on behalf of such General Partner and the Partnership as the Special Limited Partner may deem to be necessary or appropriate in order to effect the provisions of this Section 4.5 and to enable the new General Partner to manage the business of the Partnership. (c) The General Partner is hereby required, within five (5) days after its receipt of any offer to purchase the Apartment Complex or all of the Interests in the Partnership, to send a copy of such offer (or a written description of any such oral offer) to each of the Limited Partners. In connection with any proposed sale of the Apartment Complex, the Special Limited Partner (or its designee) shall have the right to (i) receive and review copies of all documents relating to the proposed sale, (ii) participate in the negotiations of the terms and conditions of the proposed sale, (iii) meet with the proposed purchaser, (iv) solicit proposals for alternative offers for the Apartment Complex, and (v) provide such other services in connection with the proposed sale as it deems to be appropriate.
Appears in 1 contract
Samples: Limited Partnership Agreement (Boston Capital Tax Credit Fund Iv Lp)
Special Rights of the Special Limited Partner. (a) Notwithstanding any other provisions herein (other than Section 13.8), to the extent the law of the State is not inconsistent, the Special Limited Partner shall have the right, subject to any Requisite Approvals, to:
(i) amend this Agreement provided, however, that no such amendment affect the rights (including, without limitation, the right to receive any fees, allocable share of Cash Flow or other distributions, or Profits or Losses and Tax Credits hereunder) or increase any of the liabilities or obligations of any General Partner without its prior written consent; including, without limitation, the Special Limited Partner shall not have the right to amend this Agreement so as to decrease the amount of any Installment or the aggregate Capital Contribution without the prior written consent of the Construction Lender or Permanent Lender, as applicable;
(ii) dissolve the Partnership provided, however, that such dissolution shall not be caused by the Special Limited Partner unless the General Partner has violated a material provision of any Project Document, which violation has not been cured within any applicable cure period specified or within 30 days if no cure period is specified, to be extended up to no more than 120 days if such cure is being diligently pursued and cannot be effected within such applicable (or 30-day) cure period;
(iiiii) remove any General Partner and elect a new General Partner (A) on the basis of the performance and discharge of such General Partner's obligations constituting fraud, bad faith, gross negligence, wilful misconduct or intentional breach of fiduciary duty, or (B) upon the occurrence of any of the following:
(1) such General Partner shall have violated any material provisions of any Project Document or other document required in connection with any Mortgage which has resulted in notice of a Material Eventdefault thereunder, or shall have violated any material provisions of any Regulations applicable to the Apartment Complex, in each case which results in any Adverse Consequences to the Partnership and has not been cured within any applicable cure period provided therefor or within 30 days if no cure period is specified, to be extended up to no more than 120 days if such cure is being diligently pursued and cannot be effected within such applicable (or 30-day) period;
(iii2) such General Partner shall have violated any material provision of this Agreement, including, but not limited to, any obligation to fund any Partnership expenses under Section 6.10 and such default has not been cured within 30 days after written notice from the Special Limited Partner to the General Partner, or such General Partner shall have violated any provisions of applicable law which shall have not been cured within 30 days, which cure period may be extended up to no more than 120 days if such cure is being diligently pursued and cannot be effected within such 30-day period;
(3) any Mortgage shall be in default and such default shall not be cured within any applicable cure period set forth in the Mortgage Loan Documents, or
(4) such General Partner shall have conducted its own affairs or the affairs of the Partnership in such a manner as would (A) cause the termination of the Partnership for federal income tax purpose or (B) cause the Partnership to be treated for federal income tax purposes as an association taxable as a corporation;
(iv) continue the business of the Partnership with a substitute General Partner, provided that the General Partner has been removed pursuant to Section 4.5(a)(ii4.5(a)(iii) above; and
(ivv) approve or disapprove the sale of all or substantially all of the assets of the Partnership.
(b) Upon the removal of a General Partner for cause pursuant to Section 4.5(a)(ii)Partner,
(i) without any further action by any Partner, the Special Limited Partner or its designee shall cause an Affiliate automatically to become a General Partner (the "Substitute General Partner") and acquire in consideration of a cash payment of $100 such portion of the Interest of the removed General Partner as counsel to the Special Investment Limited Partner Partnership shall determine is the minimum appropriate interest in order to assure the continued status of the Partnership as a partnership under the Code and under the Act;,
(ii) the remaining portion of the economic Interest of the removed General Partner shall automatically be converted to that of a special Limited Partner and shall be transferred to the Limited Partner or a designee of the Limited Partner to the extent necessary to compensate on a present value basis the Limited Partners for the action of such General Partner leading to its removal, or for the fact of its violation of the terms of this Agreement (including the cost, if any, of locating and retaining a new General Partner), not as a penalty but as damages to compensate the Partnership, provided, however, that the parties hereto agree that for events set forth in clauses (ii) (except if caused due to the Bankruptcy of the General Partner), (vi) or (viii) of the definition of Material Event herein, the entire remaining an equal economic Interest of the removed General Partner shall be forfeited to the Partnership and for all other applicable events, the size of the transferred interest shall be determined by arbitration. Such arbitration shall be conducted in accordance with the Rules of Commercial Arbitration of the American Arbitration Association by a single arbitrator appointed pursuant to those rules. The arbitration shall take place in the City of Philadelphia, Pennsylvania; andas an Additional Limited Partner,
(iii) the Substitute economic Interest of the Special Limited Partner as the Special Limited Partner shall not be affected by the new status of the Special Limited Partner or its designee as a General Partner, and
(iv) the new General Partner shall automatically be irrevocably delegated all of the powers and duties of the General Partners pursuant to Section 6.13. The Special Limited Partner or any successor General Partner proposed by the Special Limited Partner shall have the option, exercisable in its sole discretion, to acquire the Additional Limited Partner Interest, or any portion thereof, of any removed General Partner upon payment of the agreed or then present fair market value of such Interest or portion thereof. If such value is not agreed to, the fair market value of the Interest shall be as determined by a qualified, MAI- designated state-licensed real estate appraiser selected by the removed General Partner. If the Special Limited Partner does not accept such value, it may select a second similarly-qualified appraiser. If the values determined by both such appraisers differ by no more than 10%, then the purchase price shall be the arithmetic mean of the two. If the values differ by more than 10%, then the purchase price shall be determined by a third appraiser in accordance with the Arbitration procedure set forth in Section 5.1. The method of payment to the removed General Partner shall be fair; and must protect the solvency and liquidity of the Partnership. The method of payment will be deemed presumptively fair where it provides for a promissory note bearing interest at the applicable Federal Rate, known as AFR, payable from the proceeds of a Capital Transaction as set forth in Section 10.2(b) hereof. In addition, upon removal, the Partnership must promptly pay to the removed General Partner all amounts then accrued and owing to the removed General Partner, including the amount of any authorized loans made by the General Partner to the Partnership; provided, however, that notwithstanding the language of Section 6.12, Article X, Article XI and any other provision hereof, no removed General Partner or any Affiliate thereof shall be entitled to receive any fee, compensation or other remuneration from the Partnership, other than any such fee, compensation or other remuneration to the extent earned in full prior to the date of such removal. The Partnership is not authorized to enter into any arrangement whereby any fee, compensation or other remuneration could be payable directly or indirectly to any General Partner or Affiliate thereof in a manner inconsistent with the immediately preceding sentence unless the prior written consent of the Special Limited Partner shall have been obtained to such particular arrangement. The Partnership may offset against any payments to a General Partner removed under this Section 4.5 any damages suffered by the Partnership as a result of any breach of the obligations of such General Partner hereunder. A General Partner so removed or converted to a special Limited Partner will not be liable as a general partner for any obligations of the Partnership incurred after the effective date of its removal, but shall remain liable for all obligations incurred prior to its removal or damages flowing from its acts or omissions prior to its removal. Such a special Limited Partner shall have no rights other than the right to receive the allocable share of any Profits, Losses, Tax Credits or distributions of the Partnership to which the General Partner would have been entitled with respect to the Interest (or portion thereof) that was converted into a special Limited Partner interest if no such conversion had occurred, and shall not be considered to be a Special Limited Partner for the purpose of exercising any rights reserved to the Special Limited Partner under this Agreement or sharing the benefits allocated to the Special Limited Partner under Article X hereof and shall not participate in the votes or consents of the Limited Partners hereunder. Each General Partner hereby grants to the Special Limited Partner an irrevocable (to the extent permitted by applicable law) power of attorney coupled with an interest to execute and deliver any and all documents and instruments on behalf of such General Partner and the Partnership as the Special Limited Partner may deem to be necessary or appropriate in order to effect the provisions of this Section 4.5 and to enable the new General Partner to manage the business of the Partnership; provided, however the Special Limited Partner agrees that it will give ten (10) days prior Notice to the General Partner the opportunity during such ten (10) day period to execute and deliver to the Special Limited Partner any document or other instrument so requiring the General Partner's signature, after which period the Special Limited Partner may exercise its rights under such Power of Attorney.
(c) The In order to implement the provisions of Section 4.5(a)(v), the General Partner is hereby required, within five ten (510) days after its receipt of any offer to purchase the Apartment Complex or all of the Interests in the Partnership, to send a copy of such offer (or a written description of any such oral offer) to each of the Limited Partners. In connection with any proposed sale of the Apartment Complex, the Special Limited Partner (or its designee) shall have the right to (i) receive and review copies of all documents relating to the proposed sale, (ii) participate in the negotiations of the terms and conditions of the proposed sale, (iii) meet with the proposed purchaser, (iv) solicit proposals for alternative offers for the Apartment Complex, and (v) provide such other services in connection with the proposed sale as it deems to be appropriate.
Appears in 1 contract
Samples: Limited Partnership Agreement (Boston Capital Tax Credit Fund Iv Lp)
Special Rights of the Special Limited Partner. (a) Notwithstanding any other provisions herein (other than Section 13.8), to the extent the law of the State is not inconsistent, the Special Limited Partner shall have the right, subject to any Requisite Approvals, to:
(i) amend this Agreement provided, however, that no such amendment affect the vested rights (including, without limitation, the right to receive any fees, allocable share of Cash Flow or other distributions, or Profits or Losses and Tax Credits hereunder) or increase any of the liabilities or obligations of any General Partner without its prior written consent;
(ii) dissolve the Partnership provided, however, that such dissolution shall not be caused by the Special Limited Partner unless the General Partner has violated a material provision of any Project Document, which violation has not been cured within any applicable cure period specified;
(iiiii) remove any General Partner and elect a new General Partner (A) on the basis of the performance and discharge of such General Partner's obligations constituting fraud, bad faith, gross negligence, wilful misconduct or breach of fiduciary duty, or (B) upon the occurrence of a Material Event;.
(iiiiv) continue the business of the Partnership with a substitute General Partner, provided that the General Partner has been removed pursuant to Section 4.5(a)(ii4.5(a)(iii) above; and
(ivv) approve or disapprove the sale of all or substantially all of the assets of the Partnership.
(b) Upon the removal of a General Partner for cause pursuant to Section 4.5(a)(ii4.5(a)(iii),
(i) without any further action by any Partner, the Special Limited Partner shall cause an Affiliate automatically to become a General Partner (the "Substitute General Partner") and acquire in consideration of a cash payment of $100 such portion of the Interest of the removed General Partner as counsel to the Special Limited Partner shall determine is the minimum appropriate interest in order to assure the continued status of the Partnership as a partnership under the Code and under the Act;,
(ii) the remaining portion of the economic Interest of the removed General Special Limited Partner as the Special Limited Partner shall be converted to that continue unaffected by the new status of a special the Special Limited Partner and shall be transferred to the Limited Partner or as a designee of the Limited Partner to the extent necessary to compensate on a present value basis the Limited Partners for the action of such General Partner leading to its removal, or for the fact of its violation of the terms of this Agreement (including the cost, if any, of locating and retaining a new Substitute General Partner), not as a penalty but as damages to compensate the Partnership, provided, however, that the parties hereto agree that for events set forth in clauses (ii) (except if caused due to the Bankruptcy of the General Partner), (vi) or (viii) of the definition of Material Event herein, the entire remaining economic Interest of the removed General Partner shall be forfeited to the Partnership and for all other applicable events, the size of the transferred interest shall be determined by arbitration. Such arbitration shall be conducted in accordance with the Rules of Commercial Arbitration of the American Arbitration Association by a single arbitrator appointed pursuant to those rules. The arbitration shall take place in the City of Philadelphia, Pennsylvania; and,
(iii) the Substitute General Partner shall automatically be irrevocably delegated all of the powers and duties of the General Partners pursuant to Section 6.13. A General Partner so removed or converted to a special Limited Partner will not be liable as a general partner for any obligations of the Partnership incurred after the effective date of its removal, but shall remain liable for all obligations incurred prior to its removal or damages flowing from its acts or omissions prior to its removal. Such a special Limited Partner shall have no rights other than the right to receive the allocable share of any Profits, Losses, Tax Credits or distributions of the Partnership to which the General Partner would have been entitled with respect to the Interest (or portion thereof) that was converted into a special Limited Partner interest if no such conversion had occurred, and shall not be considered to be a Special Limited Partner for the purpose of exercising any rights reserved to the Special Limited Partner under this Agreement or sharing the benefits allocated to the Special Limited Partner under Article X hereof and shall not participate in the votes or consents of the Limited Partners hereunder. Each General Partner hereby grants to the Special Limited Partner an irrevocable (to the extent permitted by applicable law) power of attorney coupled with an interest to execute and deliver any and all documents and instruments on behalf of such General Partner and the Partnership as the Special Limited Partner may deem to be necessary or appropriate in order to effect the provisions of this Section 4.5 and to enable the new General Partner to manage the business of the Partnership, and
(iv) The Substitute General Partner or any Affiliate approved by such Substitute General Partner shall have the option, exercisable in its sole discretion, to acquire the remainder of the Interest of any removed General Partner upon payment of the agreed or then present fair market value of such interest or portion thereof. Any dispute as to the value of the Interest or portion thereof to be acquired pursuant to the immediately preceding sentence shall be submitted to a committee composed of three qualified real estate appraisers, one chosen by the removed General Partner, one chosen by the Substitute General Partner or the Investment Limited Partner, as the case may be, and the third chosen by the two so chosen. The proceedings of such committee shall conform to the rules of the American Arbitration Association, as far as appropriate, and its decision shall be final and binding. The expense of arbitration shall be born equally by the removed General Partner and the Partnership. The method of payment to the removed General Partner shall be fair and must protect the solvency and liquidity of the Partnership. The method of payment will be deemed presumptively fair where it provides for an interest-bearing promissory note coming due in no less than five (5) years with equal installments each year. In addition, upon removal, the Partnership must promptly pay to the removed General Partner all amounts then accrued and owing to the removed General Partner; provided, however, that notwithstanding the language of Section 6.12, Article X, Article XI and any other provision hereof, no removed General Partner or any Affiliate thereof shall be entitled to receive any fee, compensation or other remuneration from the Partnership, other than (x) the above-described payment for the Interest, or portion thereof, of the removed General Partner, and (y) any such fee, compensation or other remuneration which had already been earned in full prior the date of such removal. The Partnership is not authorized to enter into any arrangement whereby any fee, compensation or other remuneration could be payable directly or indirectly to any General Partner or Affiliate thereof in a manner inconsistent with the immediately preceding sentence unless the prior written consent of the Special Limited Partner shall have been obtained to such particular agreement. The Partnership may offset against any payments to a General Partner removed under this Section 4.5 any damages suffered by the Partnership as a result of any breach of the obligations of such General Partner hereunder.
(c) The General Partner is hereby required, within five fifteen (515) days after its receipt of any offer to purchase the Apartment Complex or all of the Interests in the Partnership, to send a copy of such offer (or a written description of any such oral offer) to each of the Limited Partners. In connection with any proposed sale of the Apartment Complex, the Special Limited Partner (or its designee) shall have the right to (i) receive and review copies of all documents relating to the proposed sale, (ii) participate in the negotiations of the terms and conditions of the proposed sale, (iii) meet with the proposed purchaser, (iv) solicit proposals for alternative offers for the Apartment Complex, and (v) provide such other services in connection with the proposed sale as it deems to be appropriate.
Appears in 1 contract
Samples: Limited Partnership Agreement (Boston Capital Tax Credit Fund Iv Lp)
Special Rights of the Special Limited Partner. (a) Notwithstanding any other provisions herein (other than Section 13.8), to the extent the law of the State is not inconsistent, the Special Limited Partner shall have the right, subject to any Requisite Approvals, to:
(i) amend this Agreement provided, however, that no such amendment affect the vested rights (including, without limitation, the right to vote hereunder, the right to receive any fees, allocable share of Cash Flow or other distributions, or Profits or Losses and Tax Credits hereunder) or alter any of the liabilities, obligations or rights of any General Partner without its prior written consent;
(ii) dissolve the Partnership provided, however, that such dissolution shall not be caused by the Special Limited Partner unless the General Partner has violated a material provision of any Project Document, which violation has a material adverse effect on the Partnership or any of its Partners and which violation has not been cured within any applicable cure period specified;
(iiiii) remove any General Partner and elect a new General Partner (A) on the basis of the performance and discharge of such General Partner's obligations constituting fraud, bad faith, gross negligence, wilful misconduct or material breach of fiduciary duty, or (B) upon the occurrence of a Material Event;.
(iiiiv) continue the business of the Partnership with a substitute General Partner, provided that the General Partner has been removed pursuant to Section 4.5(a)(ii4.5(a)(iii) above; and
(ivv) approve or disapprove the sale of all or substantially all of the assets of the Partnership.
(b) Upon the removal of a General Partner for cause pursuant to Section 4.5(a)(ii)Partner,
(i) without any further action by any Partner, the Special Limited Partner shall cause an Affiliate automatically to become a General Partner (the "Substitute General Partner") and acquire in consideration of a cash payment of $100 such portion of the Interest of the removed General Partner as counsel to the Special Limited Partner shall determine is the minimum appropriate interest in order to assure the continued status of the Partnership as a partnership under the Code and under the Act;,
(ii) the remaining portion of the economic Interest of the removed General Partner shall automatically be converted to that of a special Limited Partner and shall be transferred to the Limited Partner or a designee of the Limited Partner to the extent necessary to compensate on a present value basis the Limited Partners for the action of such General Partner leading to its removal, or for the fact of its violation of the terms of this Agreement (including the cost, if any, of locating and retaining a new General Partner), not as a penalty but as damages to compensate the Partnership, provided, however, that the parties hereto agree that for events set forth in clauses (ii) (except if caused due to the Bankruptcy of the General Partner), (vi) or (viii) of the definition of Material Event herein, the entire remaining an equal economic Interest of the removed General Partner shall be forfeited to the Partnership and for all other applicable eventsas an Additional Limited Partner, the size of the transferred interest shall be determined by arbitration. Such arbitration shall be conducted in accordance with the Rules of Commercial Arbitration of the American Arbitration Association by a single arbitrator appointed pursuant to those rules. The arbitration shall take place in the City of Philadelphia, Pennsylvania; and
(iii) the Substitute General Partner shall automatically be irrevocably delegated all of the powers and duties and obligations of the General Partners pursuant to Section 6.13. The Special Limited Partner or any successor General Partner proposed by the Special Limited Partner shall have the option, exercisable in its sole discretion, to acquire the Additional Limited Partner Interest, or any portion thereof, of any removed General Partner upon payment of the agreed or then present fair market value of such Interest or portion thereof. If such value is not agreed to, the fair market value of the Interest shall be as determined by a qualified, MAI- designated state-licensed real estate appraiser selected by the removed General Partner. If the Special Limited Partner does not accept such value, it may select a second similarly-qualified appraiser. If the values determined by both such appraisers differ by no more than 10%, then the purchase price shall be the arithmetic mean of the two. If the values differ by more than 10%, then the two appraisers shall appoint a third similarly-qualified appraiser, who shall also determine a value. In such a case, the final purchase price shall be the arithmetic mean of the two values closest in absolute dollars. The method of payment to the removed General Partner shall be fair; and must protect the solvency and liquidity of the Partnership. The method of payment will be deemed presumptively fair where it provides for a promissory note bearing interest at the AFR payable out of the proceeds of a Capital Transaction as set forth in Section 10.2(b) hereof. In addition, upon removal, the Partnership must promptly pay to the removed General Partner all amounts then accrued and owing to the removed General Partner; provided, however, that notwithstanding the language of Section 6.12, Article X, Article XI and any other provision hereof, no removed General Partner or any Affiliate thereof shall be entitled to receive any fee, compensation or other remuneration from the Partnership, other than any such fee, compensation or other remuneration (including, without limitation, the Development Fee) which had already been earned in full prior to the date of such removal. The Partnership is not authorized to enter into any arrangement whereby any fee, compensation or other remuneration could be payable directly or indirectly to any General Partner or Affiliate thereof in a manner inconsistent with the immediately preceding sentence unless the prior written consent of the Special Limited Partner shall have been obtained to such particular arrangement. The Partnership may offset against any payments to a General Partner removed under this Section 4.5 any monetary damages suffered by the Partnership as a consequential result of any breach of the obligations of such General Partner hereunder. A General Partner so removed or converted to a special Limited Partner will not be liable as a general partner for any obligations of the Partnership incurred after the effective date of its removal, but shall remain liable for all obligations incurred prior to its removal or damages flowing from its acts or omissions prior to its removal. Such a special Limited Partner shall have no rights other than the right to receive the allocable share of any Profits, Losses, Tax Credits or distributions of the Partnership to which the General Partner would have been entitled with respect to the Interest (or portion thereof) that was converted into a special Limited Partner interest if no such conversion had occurred, and shall not be considered to be a Special Limited Partner for the purpose of exercising any rights reserved to the Special Limited Partner under this Agreement or sharing the benefits allocated to the Special Limited Partner under Article X hereof and shall not participate in the votes or consents of the Limited Partners hereunder. Each General Partner hereby grants to the Special Limited Partner an irrevocable (to the extent permitted by applicable law) power of attorney coupled with an interest solely to execute and deliver any and all documents and instruments on behalf of such General Partner and the Partnership as the Special Limited Partner may deem to be necessary or appropriate in order to effect the provisions of this Section 4.5 and to enable the new General Partner to manage the business of the Partnership.
(c) The In order to implement the provisions of Section 4.5(a)(v), the General Partner is hereby required, within five (5) days after its receipt of any offer to purchase the Apartment Complex or all of the Interests in the Partnership, to send a copy of such offer (or a written description of any such oral offer) to each of the Limited Partners. In connection with any proposed sale of the Apartment Complex, the Special Limited Partner (or its designee) shall have the right to (i) receive and review copies of all documents relating to the proposed sale, (ii) participate in the negotiations of the terms and conditions of the proposed sale, (iii) meet with the proposed purchaser, and (iv) solicit proposals for alternative offers for the Apartment Complex, and (v) provide such other services in connection with the proposed sale as it deems to be appropriate.
Appears in 1 contract
Samples: Limited Partnership Agreement (Boston Capital Tax Credit Fund Iv Lp)
Special Rights of the Special Limited Partner. (a) Notwithstanding any other provisions herein (other than Section 13.8), to the extent the law of the State is not inconsistent, the Special Limited Partner shall have the right, subject to any Requisite Approvals, to:
(i) amend this Agreement provided, however, that no such amendment affect the vested rights (including, without limitation, the right to receive any fees, allocable share of Cash Flow or other distributions, or Profits or Losses and Tax Credits hereunder) or increase any of the liabilities or obligations of any General Partner without its prior written consent;
(ii) dissolve the Partnership provided, however, that such dissolution shall not be caused by the Special Limited Partner unless the General Partner has violated a material provision of any Project Document, which violation has not been cured within any applicable cure period specified;
(iiiii) remove any General Partner and elect a new General Partner (A) on the basis of the performance and discharge of such General Partner's obligations constituting fraud, bad faith, gross negligence, wilful misconduct or breach of fiduciary duty, or (B) upon the occurrence of any of the following:
(1) such General Partner shall have violated any material provisions of any Project Document or other document required in connection with any Mortgage which has resulted in notice of a Material Eventdefault thereunder, or shall have violated any material provisions of any Regulations applicable to the Apartment Complex, in each case which results in any Adverse Consequences to the Partnership and has not been cured within any applicable cure period provided therein;
(iii2) such General Partner shall have violated any material provision of this Agreement, including, but not limited to, any obligation to fund any Partnership expenses under Section 6.10 and such default has not been cured within 10 days after written notice from the Special Limited Partner to the General Partner, or such General Partner shall have violated any provisions of applicable law;
(3) any Mortgage shall be in default and such default shall not be cured within any applicable cure period set forth in the Mortgage Loan Documents, or
(4) such General Partner shall have conducted its own affairs or the affairs of the Partnership in such a manner as would (A) cause the termination of the Partnership for federal income tax purpose or (B) cause the Partnership to be treated for federal income tax purposes as an association taxable as a corporation;
(iv) continue the business of the Partnership with a substitute General Partner, provided that the General Partner has been removed pursuant to Section 4.5(a)(ii4.5(a)(iii) above; and
(ivv) approve or disapprove the sale of all or substantially all of the assets of the Partnership.
(b) Upon the removal of a General Partner for cause pursuant to Section 4.5(a)(ii)Partner,
(i) without any further action by any Partner, the Special Limited Partner or its designee shall cause an Affiliate automatically to become a General Partner (the "Substitute General Partner") and acquire in consideration of a cash payment of $100 such portion of the Interest of the removed General Partner as counsel to the Special Investment Limited Partner Partnership shall determine is the minimum appropriate interest in order to assure the continued status of the Partnership as a partnership under the Code and under the Act;,
(ii) the remaining portion of the economic Interest of the removed General Partner shall automatically be converted to that of a special Limited Partner and shall be transferred to the Limited Partner or a designee of the Limited Partner to the extent necessary to compensate on a present value basis the Limited Partners for the action of such General Partner leading to its removal, or for the fact of its violation of the terms of this Agreement (including the cost, if any, of locating and retaining a new General Partner), not as a penalty but as damages to compensate the Partnership, provided, however, that the parties hereto agree that for events set forth in clauses (ii) (except if caused due to the Bankruptcy of the General Partner), (vi) or (viii) of the definition of Material Event herein, the entire remaining an equal economic Interest of the removed General Partner shall be forfeited to the Partnership and for all other applicable events, the size of the transferred interest shall be determined by arbitration. Such arbitration shall be conducted in accordance with the Rules of Commercial Arbitration of the American Arbitration Association by a single arbitrator appointed pursuant to those rules. The arbitration shall take place in the City of Philadelphia, Pennsylvania; andas an Additional Limited Partner,
(iii) the Substitute economic Interest of the Special Limited Partner as the Special Limited Partner shall not be affected by the new status of the Special Limited Partner or its designee as a General Partner, and
(iv) the new General Partner shall automatically be irrevocably delegated all of the powers and duties of the General Partners pursuant to Section 6.13. The Special Limited Partner or any successor General Partner proposed by the Special Limited Partner shall have the option, exercisable in its sole discretion, to acquire the Additional Limited Partner Interest, or any portion thereof, of any removed General Partner upon payment of the agreed or then present fair market value of such Interest or portion thereof. If such value is not agreed to, the fair market value of the Interest shall be as determined by a qualified, MAI- designated state-licensed real estate appraiser selected by the removed General Partner. If the Special Limited Partner does not accept such value, it may select a second similarly-qualified appraiser. If the values determined by both such appraisers differ by no more than 10%, then the purchase price shall be the arithmetic mean of the two. If the values differ by more than 10%, then the two appraisers shall appoint a third similarly-qualified appraiser, who shall also determine a value. In such a case, the final purchase price shall be the arithmetic mean of the two values closest in absolute dollars. The method of payment to the removed General Partner shall be fair; and must protect the solvency and liquidity of the Partnership. The method of payment will be deemed presumptively fair where it provides for a promissory note bearing interest at the AFR payable from the proceeds of a Capital Transaction as set forth in Section 10.2(b) hereof. In addition, upon removal, the Partnership must promptly pay to the removed General Partner all amounts then accrued and owing to the removed General Partner; provided, however, that notwithstanding the language of Section 6.12, Article X, Article XI and any other provision hereof, no removed General Partner or any Affiliate thereof shall be entitled to receive any fee, compensation or other remuneration from the Partnership, other than any such fee, compensation or other remuneration which had already been earned in full prior to the date of such removal. The Partnership is not authorized to enter into any arrangement whereby any fee, compensation or other remuneration could be payable directly or indirectly to any General Partner or Affiliate thereof in a manner inconsistent with the immediately preceding sentence unless the prior written consent of the Special Limited Partner shall have been obtained to such particular arrangement. The Partnership may offset against any payments to a General Partner removed under this Section 4.5 any damages suffered by the Partnership as a result of any breach of the obligations of such General Partner hereunder. A General Partner so removed or converted to a special Limited Partner will not be liable as a general partner for any obligations of the Partnership incurred after the effective date of its removal, but shall remain liable for all obligations incurred prior to its removal or damages flowing from its acts or omissions prior to its removal. Such a special Limited Partner shall have no rights other than the right to receive the allocable share of any Profits, Losses, Tax Credits or distributions of the Partnership to which the General Partner would have been entitled with respect to the Interest (or portion thereof) that was converted into a special Limited Partner interest if no such conversion had occurred, and shall not be considered to be a Special Limited Partner for the purpose of exercising any rights reserved to the Special Limited Partner under this Agreement or sharing the benefits allocated to the Special Limited Partner under Article X hereof and shall not participate in the votes or consents of the Limited Partners hereunder. Each General Partner hereby grants to the Special Limited Partner an irrevocable (to the extent permitted by applicable law) power of attorney coupled with an interest to execute and deliver any and all documents and instruments on behalf of such General Partner and the Partnership as the Special Limited Partner may deem to be necessary or appropriate in order to effect the provisions of this Section 4.5 and to enable the new General Partner to manage the business of the Partnership.
(c) The In order to implement the provisions of Section 4.5(a)(v), the General Partner is hereby required, within five (5) days after its receipt of any offer to purchase the Apartment Complex or all of the Interests in the Partnership, to send a copy of such offer (or a written description of any such oral offer) to each of the Limited Partners. In connection with any proposed sale of the Apartment Complex, the Special Limited Partner (or its designee) shall have the right to (i) receive and review copies of all documents relating to the proposed sale, (ii) participate in the negotiations of the terms and conditions of the proposed sale, (iii) meet with the proposed purchaser, (iv) solicit proposals for alternative offers for the Apartment Complex, and (v) provide such other services in connection with the proposed sale as it deems to be appropriate.
Appears in 1 contract
Samples: Limited Partnership Agreement (Boston Capital Tax Credit Fund Iv Lp)
Special Rights of the Special Limited Partner. (a) Notwithstanding any other provisions herein (other than Section 13.8), to the extent the law of the State is not inconsistent, the Special Limited Partner shall have the right, subject to any Requisite Approvals, to:
(i) amend this Agreement provided, however, that no such amendment affect the vested rights (including, without limitation, the right to receive any fees, allocable share of Cash Flow or other distributions, or Profits or Losses and Tax Credits hereunder) or increase any of the liabilities or obligations of any General Partner without its prior written consent;
(ii) dissolve the Partnership provided, however, that such dissolution shall not be caused by the Special Limited Partner unless the General Partner has violated a material provision of any Project Document, which violation has not been cured within any applicable cure period specified;
(iiiii) remove any General Partner and elect a new General Partner (A) on the basis of the performance and discharge of such General Partner's obligations constituting fraud, bad faith, gross negligence, wilful misconduct or breach of fiduciary duty, or (B) upon the occurrence of a Material Event;.
(iiiiv) continue the business of the Partnership with a substitute General Partner, provided that the General Partner has been removed pursuant to Section 4.5(a)(ii4.5(a)(iii) above; and
(ivv) approve or disapprove the sale of all or substantially all of the assets of the Partnership.
(b) Upon the removal of a General Partner for cause pursuant to Section 4.5(a)(ii4.5(a)(iii),
(i) without any further action by any Partner, the Special Limited Partner shall cause an Affiliate automatically to become a General Partner (the "Substitute General Partner") and acquire in consideration of a cash payment of $100 such portion of the Interest of the removed General Partner as counsel to the Special Limited Partner shall determine is the minimum appropriate interest in order to assure the continued status of the Partnership as a partnership under the Code and under the Act;,
(ii) the remaining portion of the economic Interest of the removed General Partner shall automatically be converted to that of a special Limited Partner and shall be transferred forfeited to the Limited Partner or Partnership, not as a designee of the Limited Partner to the extent necessary penalty but as liquidated damages to compensate on a present value basis the Limited Partners Partnership for the action of such General Partner leading to its removal, or for the fact of its violation of the terms of this Agreement (including the costAgreement, if any, of locating and retaining a new General Partner), not as a penalty but as damages to compensate the Partnership, provided, however, that the parties hereto agree that for events set forth in clauses (ii) (except if caused due to the Bankruptcy of the General Partner), (vi) or (viii) of the definition of Material Event herein, the entire remaining economic Interest of the removed General Partner shall be forfeited to the Partnership and for all other applicable events, the size of the transferred interest shall be determined by arbitration. Such arbitration shall be conducted in accordance with the Rules of Commercial Arbitration of the American Arbitration Association by a single arbitrator appointed pursuant to those rules. The arbitration shall take place in the City of Philadelphia, Pennsylvania; and
(iii) the Substitute General Partner shall automatically be irrevocably delegated all of the powers and duties of the General Partners pursuant to Section 6.13. A General Partner so removed or converted to a special Limited Partner will not be liable as a general partner for any obligations of the Partnership incurred after the effective date of its removal, but shall remain liable for all obligations incurred prior to its removal or damages flowing from its acts or omissions prior to its removal. Such a special Limited Partner shall have no rights other than the right to receive the allocable share of any Profits, Losses, Tax Credits or distributions of the Partnership to which the General Partner would have been entitled with respect to the Interest (or portion thereof) that was converted into a special Limited Partner interest if no such conversion had occurred, and shall not be considered to be a Special Limited Partner for the purpose of exercising any rights reserved to the Special Limited Partner under this Agreement or sharing the benefits allocated to the Special Limited Partner under Article X hereof and shall not participate in the votes or consents of the Limited Partners hereunder. Each General Partner hereby grants to the Special Limited Partner an irrevocable (to the extent permitted by applicable law) power of attorney coupled with an interest to execute and deliver any and all documents and instruments on behalf of such General Partner and the Partnership as the Special Limited Partner may deem to be necessary or appropriate in order to effect the provisions of this Section 4.5 and to enable the new General Partner to manage the business of the Partnership.
(c) The General Partner is hereby required, within five fifteen (515) days after its receipt of any offer to purchase the Apartment Complex or all of the Interests in the Partnership, to send a copy of such offer (or a written description of any such oral offer) to each of the Limited Partners. In connection with any proposed sale of the Apartment Complex, the Special Limited Partner (or its designee) shall have the right to (i) receive and review copies of all documents relating to the proposed sale, (ii) participate in the negotiations of the terms and conditions of the proposed sale, (iii) meet with the proposed purchaser, (iv) solicit proposals for alternative offers for the Apartment Complex, and (v) provide such other services in connection with the proposed sale as it deems to be appropriate.
Appears in 1 contract
Samples: Limited Partnership Agreement (Boston Capital Tax Credit Fund Iv Lp)
Special Rights of the Special Limited Partner. (a) Notwithstanding any other provisions herein (other than Section 13.8Sections 13.8 and 13.14), after thirty (30) days following notice to the General Partner, to the extent the law of the State is not inconsistent, the Special Limited Partner shall have the right, subject to any Requisite ApprovalsApprovals and as to clauses (ii) and (iii) below if after such thirty (30) days following notice to the General Partner such event is continuing, to:
(i) amend this Agreement provided, however, that no such amendment affect any vested rights (including, without limitation, the right to receive any fees, allocable share of Cash Flow or other distributions, or Profits or Losses and Tax Credits hereunder) or increase any of the liabilities or obligations of any General Partner without its prior written consent;
(ii) dissolve the Partnership provided, however, that such dissolution shall not be caused by the Special Limited Partner unless the General Partner has violated a material provision of any Project Document, which violation has not been cured within any applicable cure period specified;
(iiiii) remove any General Partner and elect a new General Partner (A) on the basis of the performance and discharge of such General Partner's obligations constituting fraud, bad faith, gross negligence, wilful misconduct or breach of fiduciary duty, or (B) upon the occurrence of a Material Event;Event as set forth in subsections (ii) through (x) of the definition of Material Default as set forth herein.
(iiiiv) continue the business of the Partnership with a substitute General Partner, provided that the General Partner has been removed pursuant to Section 4.5(a)(ii4.5(a)(iii) above; and
(ivv) approve or disapprove the sale of all or substantially all of the assets of the Partnership.
(b) Upon the removal of a General Partner for cause pursuant to Section 4.5(a)(ii4.5(a)(iii),
(i) without any further action by any Partner, the Special Limited Partner shall cause an Affiliate automatically to become a General Partner (the "Substitute General Partner") and acquire in consideration of a cash payment of $100 such portion of the Interest of the removed General Partner as counsel to the Special Limited Partner shall determine is the minimum appropriate interest in order to assure the continued status of the Partnership as a partnership under the Code and under the Act;,
(ii) the remaining portion of the economic Interest of the removed General Partner shall automatically be converted to that of a special Limited Partner and shall be transferred forfeited to the Limited Partner or Partnership, not as a designee of the Limited Partner to the extent necessary penalty but as liquidated damages to compensate on a present value basis the Limited Partners Partnership for the action of such General Partner leading to its removal, or for the fact of its violation of the terms of this Agreement (including the costAgreement, if any, of locating and retaining a new General Partner), not as a penalty but as damages to compensate the Partnership, provided, however, that the parties hereto agree that for events set forth in clauses (ii) (except if caused due to the Bankruptcy of the General Partner), (vi) or (viii) of the definition of Material Event herein, the entire remaining economic Interest of the removed General Partner shall be forfeited to the Partnership and for all other applicable events, the size of the transferred interest shall be determined by arbitration. Such arbitration shall be conducted in accordance with the Rules of Commercial Arbitration of the American Arbitration Association by a single arbitrator appointed pursuant to those rules. The arbitration shall take place in the City of Philadelphia, Pennsylvania; and
(iii) the Substitute General Partner shall automatically be irrevocably delegated all of the powers and duties of the General Partners pursuant to Section 6.13. A General Partner so removed or converted to a special Limited Partner will not be liable as a general partner for any obligations of the Partnership incurred after the effective date of its removal, but shall remain liable for all obligations incurred prior to its removal or damages flowing from its acts or omissions prior to its removal. Such a special Limited Partner shall have no rights other than the right to receive the allocable share of any Profits, Losses, Tax Credits or distributions of the Partnership to which the General Partner would have been entitled with respect to the Interest (or portion thereof) that was converted into a special Limited Partner interest if no such conversion had occurred, and shall not be considered to be a Special Limited Partner for the purpose of exercising any rights reserved to the Special Limited Partner under this Agreement or sharing the benefits allocated to the Special Limited Partner under Article X hereof and shall not participate in the votes or consents of the Limited Partners hereunder. Each General Partner hereby grants to the Special Limited Partner an irrevocable (to the extent permitted by applicable law) power of attorney coupled with an interest to execute and deliver any and all documents and instruments on behalf of such General Partner and the Partnership as the Special Limited Partner may deem to be necessary or appropriate in order to effect the provisions of this Section 4.5 and to enable the new General Partner to manage the business of the Partnership.
(c) The General Partner is hereby required, within five (5) days after its receipt of any offer to purchase the Apartment Complex or all of the Interests in the Partnership, to send a copy of such offer (or a written description of any such oral offer) to each of the Limited Partners. In connection with any proposed sale of the Apartment Complex, the Special Limited Partner (or its designee) shall have the right to (i) receive and review copies of all documents relating to the proposed sale, (ii) participate in the negotiations of the terms and conditions of the proposed sale, (iii) meet with the proposed purchaser, (iv) solicit proposals for alternative offers for the Apartment Complex, and (v) provide such other services in connection with the proposed sale as it deems to be appropriate.
Appears in 1 contract
Samples: Limited Partnership Agreement (Boston Capital Tax Credit Fund Iv Lp)
Special Rights of the Special Limited Partner. (a) Notwithstanding any other provisions herein (other than Section 13.8), to the extent the law of the State is not inconsistent, the Special Limited Partner shall have the right, subject to any Requisite Approvals, to:
(i) amend this Agreement provided, however, that no such amendment affect the vested rights (including, without limitation, the right to receive any fees, allocable share of Cash Flow or other distributions, or Profits or Losses and Tax Credits hereunder) or increase any of the liabilities or obligations of any General Partner without its prior written consent;
(ii) dissolve the Partnership provided, however, that such dissolution shall not be caused by the Special Limited Partner unless the General Partner has violated a material provision of any Project Document, which violation has not been cured within any applicable cure period specified;
(iiiii) remove any General Partner and elect a new General Partner (A) on the basis of the performance and discharge of such General Partner's obligations constituting fraud, bad faith, gross negligence, wilful misconduct or breach of fiduciary duty, or (B) upon the occurrence of a Material Event;.
(iiiiv) continue the business of the Partnership with a substitute General Partner, provided that the General Partner has been removed pursuant to Section 4.5(a)(ii4.5(a)(iii) above; and
(ivv) approve or disapprove the sale of all or substantially all of the assets of the Partnership.
(b) Upon the removal of a General Partner for cause pursuant to Section 4.5(a)(ii4.5(a)(iii),
(i) without any further action by any Partner, the Special Limited Partner shall cause an Affiliate automatically to become a General Partner (the "Substitute General Partner") and acquire in consideration of a cash payment of $100 such portion of the Interest of the removed General Partner as counsel to the Special Limited Partner shall determine is the minimum appropriate interest in order to assure the continued status of the Partnership as a partnership under the Code and under the Act;,
(ii) the remaining portion of the economic Interest of the removed General Partner shall automatically be converted to that of a special Limited Partner and shall be transferred forfeited to the Limited Partner or Partnership, not as a designee of the Limited Partner to the extent necessary penalty but as liquidated damages to compensate on a present value basis the Limited Partners Partnership for the action of such General Partner leading to its removal, or for the fact of its violation of the terms of this Agreement (including the costAgreement, if any, of locating and retaining a new General Partner), not as a penalty but as damages to compensate the Partnership, provided, however, that the parties hereto agree that for events set forth in clauses (ii) (except if caused due to the Bankruptcy of the General Partner), (vi) or (viii) of the definition of Material Event herein, the entire remaining economic Interest of the removed General Partner shall be forfeited to the Partnership and for all other applicable events, the size of the transferred interest shall be determined by arbitration. Such arbitration shall be conducted in accordance with the Rules of Commercial Arbitration of the American Arbitration Association by a single arbitrator appointed pursuant to those rules. The arbitration shall take place in the City of Philadelphia, Pennsylvania; and
(iii) the Substitute General Partner shall automatically be irrevocably delegated all of the powers and duties of the General Partners pursuant to Section 6.13. A General Partner so removed or converted to a special Limited Partner will not be liable as a general partner for any obligations of the Partnership incurred after the effective date of its removal, but shall remain liable for all obligations incurred prior to its removal or damages flowing from its acts or omissions prior to its removal. Such a special Limited Partner shall have no rights other than the right to receive the allocable share of any Profits, Losses, Tax Credits or distributions of the Partnership to which the General Partner would have been entitled with respect to the Interest (or portion thereof) that was converted into a special Limited Partner interest if no such conversion had occurred, and shall not be considered to be a Special Limited Partner for the purpose of exercising any rights reserved to the Special Limited Partner under this Agreement or sharing the benefits allocated to the Special Limited Partner under Article X hereof and shall not participate in the votes or consents of the Limited Partners hereunder. Each General Partner hereby grants to the Special Limited Partner an irrevocable (to the extent permitted by applicable law) power of attorney coupled with an interest to execute and deliver any and all documents and instruments on behalf of such General Partner and the Partnership as the Special Limited Partner may deem to be necessary or appropriate in order to effect the provisions of this Section 4.5 and to enable the new General Partner to manage the business of the Partnership.
(c) The General Partner is hereby required, within five (5) days after its receipt of any offer to purchase the Apartment Complex or all of the Interests in the Partnership, to send a copy of such offer (or a written description of any such oral offer) to each of the Limited Partners. In connection with any proposed sale of the Apartment Complex, the Special Limited Partner (or its designee) shall have the right to (i) receive and review copies of all documents relating to the proposed sale, (ii) participate in the negotiations of the terms and conditions of the proposed sale, (iii) meet with the proposed purchaser, (iv) solicit proposals for alternative offers for the Apartment Complex, and (v) provide such other services in connection with the proposed sale as it deems to be appropriate.
Appears in 1 contract
Samples: Limited Partnership Agreement (Boston Capital Tax Credit Fund Iv Lp)
Special Rights of the Special Limited Partner. (a) Notwithstanding any other provisions herein (other than Section 13.8), to the extent the law of the State is not inconsistent, the Special Limited Partner shall have the right, subject to any Requisite Approvals, to:
(i) amend this Agreement provided, however, that no such amendment affect the rights (including, without limitation, the right to receive any fees, allocable share of Cash Flow or other distributions, or Profits or Losses and Tax Credits hereunder) or increase any of the liabilities or obligations of any General Partner without its prior written consent, including, without limitation, the Special Limited Partner shall not have the right to amend this Agreement so as to decrease the amount of any Installment or the aggregate Capital Contribution without the prior written consent of the Construction Lender or Permanent Lender, as applicable;
(ii) dissolve the Partnership provided, however, that such dissolution shall not be caused by the Special Limited Partner unless the General Partner has violated a material provision of any Project Document, which violation has not been cured within any applicable cure period specified or within 30 days if no cure period is specified, to be extended up to no more than 120 days if such cure is being diligently pursued and cannot be effected within such applicable (or 30-day) cure period;
(iiiii) remove any General Partner and elect a new General Partner (A) on the basis of the performance and discharge of such General Partner's obligations constituting fraud, bad faith, gross negligence, wilful misconduct or intentional breach of fiduciary duty, or (B) upon the occurrence of a Material Event;.
(iiiiv) continue the business of the Partnership with a substitute General Partner, provided that the General Partner has been removed pursuant to Section 4.5(a)(ii4.5(a)(iii) above; and
(ivv) approve or disapprove the sale of all or substantially all of the assets of the Partnership.
(b) Upon the removal of a General Partner for cause pursuant to Section 4.5(a)(ii4.5(a)(iii),
(i) without any further action by any Partner, the Special Limited Partner shall cause an Affiliate automatically to become a General Partner (the "Substitute General Partner") and acquire in consideration of a cash payment of $100 such portion of the Interest of the removed General Partner as counsel to the Special Limited Partner Partnership shall determine is the minimum appropriate interest in order to assure the continued status of the Partnership as a partnership under the Code and under the Act;,
(ii) the remaining portion of the economic Interest of the removed General Partner shall automatically be converted to that of a special Limited Partner and shall be transferred forfeited to the Limited Partner or Partnership, not as a designee of the Limited Partner to the extent necessary penalty but as liquidated damages to compensate on a present value basis the Limited Partners Partnership for the action of such General Partner leading to its removal, or for the fact of its violation of the terms of this Agreement (including the costAgreement, if any, of locating and retaining a new General Partner), not as a penalty but as damages to compensate the Partnership, provided, however, that the parties hereto agree that for events set forth in clauses (ii) (except if caused due to the Bankruptcy of the General Partner), (vi) or (viii) of the definition of Material Event herein, the entire remaining economic Interest of the removed General Partner shall be forfeited to the Partnership and for all other applicable events, the size of the transferred interest shall be determined by arbitration. Such arbitration shall be conducted in accordance with the Rules of Commercial Arbitration of the American Arbitration Association by a single arbitrator appointed pursuant to those rules. The arbitration shall take place in the City of Philadelphia, Pennsylvania; and
(iii) the Substitute General Partner shall automatically be irrevocably delegated all of the powers and duties of the General Partners pursuant to Section 6.13. A General Partner so removed or converted to a special Limited Partner will not be liable as a general partner for any obligations of the Partnership incurred after the effective date of its removal, but shall remain liable for all obligations incurred prior to its removal or damages flowing from its acts or omissions prior to its removal. Such a special Limited Partner shall have no rights other than the right to receive the allocable share of any Profits, Losses, Tax Credits or distributions of the Partnership to which the General Partner would have been entitled with respect to the Interest (or portion thereof) that was converted into a special Limited Partner interest if no such conversion had occurred, and shall not be considered to be a Special Limited Partner for the purpose of exercising any rights reserved to the Special Limited Partner under this Agreement or sharing the benefits allocated to the Special Limited Partner under Article X hereof and shall not participate in the votes or consents of the Limited Partners hereunder. Each General Partner hereby grants to the Special Limited Partner an irrevocable (to the extent permitted by applicable law) power of attorney coupled with an interest to execute and deliver any and all documents and instruments on behalf of such General Partner and the Partnership as the Special Limited Partner may deem to be necessary or appropriate in order to effect the provisions of this Section 4.5 and to enable the new General Partner to manage the business of the Partnership.
(c) The General Partner is hereby required, within five ten (510) days after its receipt of any offer to purchase the Apartment Complex or all of the Interests in the Partnership, to send a copy of such offer (or a written description of any such oral offer) to each of the Limited Partners. In connection with any proposed sale of the Apartment Complex, the Special Limited Partner (or its designee) shall have the right to (i) receive and review copies of all documents relating to the proposed sale, (ii) participate in the negotiations of the terms and conditions of the proposed sale, (iii) meet with the proposed purchaser, (iv) solicit proposals for alternative offers for the Apartment Complex, and (v) provide such other services in connection with the proposed sale as it deems to be appropriate.
Appears in 1 contract
Samples: Limited Partnership Agreement (Boston Capital Tax Credit Fund Iv Lp)
Special Rights of the Special Limited Partner. (a) Notwithstanding any other provisions herein (other than Section 13.8), to the extent the law of the State is not inconsistent, the Special Limited Partner shall have the right, subject to any Requisite Approvals, to:
(i) amend this Agreement provided, however, that no such amendment affect the vested rights (including, without limitation, the right to vote hereunder, the right to receive any fees, allocable share of Cash Flow or other distributions, or Profits or Losses and Tax Credits hereunder) or alter any of the liabilities, obligations or rights of any General Partner without its prior written consent;
(ii) dissolve the Partnership provided, however, that such dissolution shall not be caused by the Special Limited Partner unless the General Partner has violated a material provision of any Project Document, which violation has a material adverse effect on the Partnership or any of its Partners and which violation has not been cured within any applicable cure period specified;
(iiiii) remove any General Partner and elect a new General Partner (A) on the basis of the performance and discharge of such General Partner's obligations constituting fraud, bad faith, gross negligence, wilful misconduct or material breach of fiduciary duty, or (B) upon the occurrence of any of the following:
(1) such General Partner shall have violated any material provisions of any Project Document or other document required in connection with any Mortgage which has resulted in notice of a Material Eventdefault thereunder, or shall have violated any material provisions of any Regulations applicable to the Apartment Complex, in each case which results in any Adverse Consequences to the Partnership and has not been cured within any applicable cure period provided therein and further provided that, in the event of a dispute regarding the existence of such a violation or default, such dispute shall be resolved pursuant to the arbitration provisions set forth in Section 5.1(i);
(iii2) such General Partner shall have violated any material provision of this Agreement, including, but not limited to, any obligation to fund any Partnership expenses under Section 6.10 and such default has a material adverse effect on the Partnership or any of its Partners and has not been cured within ten (10) days after receipt of written notice from the Special Limited Partner to the General Partner, or such General Partner shall have violated any provisions of applicable law and further provided that, in the event of a dispute regarding the existence of such a violation or default, such dispute shall be resolved pursuant to the arbitration provisions set forth in Section 5.1(i);
(3) any Mortgage shall be in default and such default shall not be cured within any applicable cure period set forth in the Mortgage Loan Documents and further provided that, in the event of a dispute regarding the existence of such a violation or default, such dispute shall be resolved pursuant to the arbitration provisions set forth in Section 5.1(i); or
(4) such General Partner shall have conducted its own affairs or the affairs of the Partnership in such a manner as would (A) cause the termination of the Partnership for federal income tax purpose or (B) cause the Partnership to be treated for federal income tax purposes as an association taxable as a corporation;
(iv) continue the business of the Partnership with a substitute General Partner, provided that the General Partner has been removed pursuant to Section 4.5(a)(ii4.5(a)(iii) above; and
(ivv) approve or disapprove the sale of all or substantially all of the assets of the Partnership.
(b) Upon the removal of a General Partner for cause pursuant to Section 4.5(a)(ii)Partner,
(i) without any further action by any Partner, the Special Limited Partner or its designee shall cause an Affiliate automatically to become a General Partner (the "Substitute General Partner") and acquire in consideration of a cash payment of $100 such portion of the Interest of the removed General Partner as counsel to the Special Investment Limited Partner Partners shall determine is the minimum appropriate interest in order to assure the continued status of the Partnership as a partnership under the Code and under the Act;,
(ii) the remaining portion of the economic Interest of the removed General Partner shall automatically be converted to that of a special Limited Partner and shall be transferred to the Limited Partner or a designee of the Limited Partner to the extent necessary to compensate on a present value basis the Limited Partners for the action of such General Partner leading to its removal, or for the fact of its violation of the terms of this Agreement (including the cost, if any, of locating and retaining a new General Partner), not as a penalty but as damages to compensate the Partnership, provided, however, that the parties hereto agree that for events set forth in clauses (ii) (except if caused due to the Bankruptcy of the General Partner), (vi) or (viii) of the definition of Material Event herein, the entire remaining an equal economic Interest of the removed General Partner shall be forfeited to the Partnership and for all other applicable eventsas an Additional Limited Partner, the size of the transferred interest shall be determined by arbitration. Such arbitration shall be conducted in accordance with the Rules of Commercial Arbitration of the American Arbitration Association by a single arbitrator appointed pursuant to those rules. The arbitration shall take place in the City of Philadelphia, Pennsylvania; and
(iii) the Substitute new General Partner shall automatically be irrevocably delegated all of the powers powers, duties and duties obligations of the General Partners pursuant to Section 6.13. The Special Limited Partner or any successor General Partner proposed by the Special Limited Partner shall have the option, exercisable in its sole discretion, to acquire the Additional Limited Partner Interest, or any portion thereof, of any removed General Partner upon payment of the agreed or then present fair market value of such Interest or portion thereof. If such value is not agreed to, the fair market value of the Interest shall be as determined by a qualified, MAI-designated state-licensed real estate appraiser selected by the removed General Partner. If the Special Limited Partner does not accept such value, it may select a second similarly-qualified appraiser. If the values determined by both such appraisers differ by no more than 10%, then the purchase price shall be the arithmetic mean of the two. If the values differ by more than 10%, then the two appraisers shall appoint a third similarly-qualified appraiser, who shall also determine a value. In such a case, the final purchase price shall be the arithmetic mean of the two values closest in absolute dollars. The method of payment to the removed General Partner shall be fair; and must protect the solvency and liquidity of the Partnership. The method of payment will be deemed presumptively fair where it provides for a promissory note bearing interest at the AFR payable out of the proceeds of a Capital Transaction as set forth in Section 10.2(b) hereof. In addition, upon removal, the Partnership must promptly pay to the removed General Partner all amounts then accrued and owing to the removed General Partner; provided, however, that notwithstanding the language of Section 6.12, Article X, Article XI and any other provision hereof, no removed General Partner or any Affiliate thereof shall be entitled to receive any fee, compensation or other remuneration from the Partnership, other than any such fee, compensation or other remuneration (including, without limitation, the Development Fee) which had already been earned in full prior to the date of such removal. The Partnership is not authorized to enter into any arrangement whereby any fee, compensation or other remuneration could be payable directly or indirectly to any General Partner or Affiliate thereof in a manner inconsistent with the immediately preceding sentence unless the prior written consent of the Special Limited Partner shall have been obtained to such particular arrangement. The Partnership may offset against any payments to a General Partner removed under this Section 4.5 any monetary damages suffered by the Partnership as a consequential result of any breach of the obligations of such General Partner hereunder. A General Partner so removed or converted to a special Limited Partner will not be liable as a general partner for any obligations of the Partnership incurred after the effective date of its removal, but shall remain liable for all obligations incurred prior to its removal or damages flowing from its acts or omissions prior to its removal. Such a special Limited Partner shall have no rights other than the right to receive the allocable share of any Profits, Losses, Tax Credits or distributions of the Partnership to which the General Partner would have been entitled with respect to the Interest (or portion thereof) that was converted into a special Limited Partner interest if no such conversion had occurred, and shall not be considered to be a Special Limited Partner for the purpose of exercising any rights reserved to the Special Limited Partner under this Agreement or sharing the benefits allocated to the Special Limited Partner under Article X hereof and shall not participate in the votes or consents of the Limited Partners hereunder. Each General Partner hereby grants to the Special Limited Partner an irrevocable (to the extent permitted by applicable law) power of attorney coupled with an interest solely to execute and deliver any and all documents and instruments on behalf of such General Partner and the Partnership as the Special Limited Partner may deem to be necessary or appropriate in order to effect the provisions of this Section 4.5 and to enable the new General Partner to manage the business of the Partnership.
(c) The In order to implement the provisions of Section 4.5(a)(v), the General Partner is hereby required, within five (5) days after its receipt of any offer to purchase the Apartment Complex or all of the Interests in the Partnership, to send a copy of such offer (or a written description of any such oral offer) to each of the Limited Partners. In connection with any proposed sale of the Apartment Complex, the Special Limited Partner (or its designee) shall have the right to (i) receive and review copies of all documents relating to the proposed sale, (ii) participate in the negotiations of the terms and conditions of the proposed sale, (iii) meet with the proposed purchaser, and (iv) solicit proposals for alternative offers for the Apartment Complex, and (v) provide such other services in connection with the proposed sale as it deems to be appropriate.
Appears in 1 contract
Samples: Limited Partnership Agreement (Boston Capital Tax Credit Fund Iv Lp)
