Withholding of Fee Payments. In the event that (a) a General Partner or any successor General Partner or the general partner of any Affiliated Limited Partnership shall not have substantially complied with any material provisions under this Agreement or the applicable limited partnership agreement, or (b) any financing commitment of any lender, or any agreement entered into by the Partnership for financing related to the Apartment Complex or the property of any Affiliated Limited Partnership shall have terminated prior to their respective termination date(s), or (c) foreclosure proceedings shall have been commenced against the Apartment Complex or the property of such Affiliated Limited Partnership, then (i) such General Partner shall be in default of this Agreement, and the Partnership shall withhold payment of any installment of fees payable pursuant to Sections 8.10 and 8.11, and (ii) the General Partner shall be liable for the Partnership's payment of any and all installments of the Development Fee payable pursuant to Section 8.10, to the extent that the Investment Partnership has withheld any Installment(s) pursuant to Section 5.03 as a result of the above-described default. All amounts so withheld by the Partnership under this Section 8.12 shall be promptly released only after the General Partner has cured the default justifying the withholding, as demonstrated by evidence reasonably acceptable to the Investment Partnership. 8.13. Removal of the General Partner. (a) BCTC 94, Inc., acting on behalf of the Investment Partnership, so long as the Investment Partnership is a Partner, shall have the right to remove any or all General Partners (i) for any intentional misconduct or gross negligence in the discharge of its duties and obligations as a General Partner, or (ii) upon the occurrence of any of the following: (A) such General Partner shall have violated any of the material provisions of the Extended Use Commitment, the Loan Documents, or any provisions of any other Project Document or other document required in connection with the Mortgage Loan, or any provisions of the Agency regulations applicable to the Apartment Complex; (B) such General Partner shall have violated any material provision of this Agreement or any provision of applicable law, which violations shall include, without limitation (i) withdrawal of the General Partner without the Consent of the Investment Partnership pursuant to the Section 6.01(a), (ii) the failure of the General Partner to make Subordinated Loans required under this Agreement or (iii) the failure of a sole General Partner which is a corporation to satisfy the requirements of Section 8.08; (C) such General Partner shall have caused the Mortgage Loan to go into default; or (D) such General Partner shall have conducted its own affairs or the affairs of the Partnership in such manner as would: (1) cause the termination of the Partnership for federal income tax purposes; or (2) cause the Partnership to be treated for federal income tax purposes as an association, taxable as a corporation. (b) BCTC 94, Inc. shall give Notice to all Partners of its determination that any such General Partner shall be removed. The General Partner shall have thirty (30) days after receipt of such Notice to cure any default or other reason for such removal, in which event it shall remain as General Partner. If, at the end of such cure period such General Partner has not cured any default or other reason for such removal, (i) without any further action by any Partner, BCTC 94, Inc. or its designee shall automatically become a General Partner and acquire in consideration of a cash payment of $5 such portion of the Interest of the removed General Partner as counsel to the Investment 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 an equal economic Interest as an Additional Limited Partner, (iii) the economic Interest of BCTC 94, Inc. as the Special Limited Partner shall continue unaffected by the new status of BCTC 94, Inc. 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 hereunder. (c) BCTC 94, Inc. or any successor General Partner proposed by the Special Limited Partner shall have the option, exercisable in its sole discretion, to acquire (i) the Additional Limited Partner Interest of any removed General Partner and/or (ii) the Class A Limited Partner Interest, or any portion thereof, 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 Partner whose Interest is to be purchased, one chosen by the General Partner, 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 Partner whose Interest is to be purchased and the Partnership. The method of payment will be deemed presumptively fair where it provides for a promissory note bearing simple interest at eight percent (8%) per annum coming due in no less than five (5) years with equal installments each year. (d) Upon removal, no General Partner or any Affiliate thereof shall be entitled to receive any fee, compensation or other remuneration from the Partnership, other than the above- described payment for the Interest, or portion thereof, of the Removed General Partner. 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 BCTC 94, Inc. shall have been obtained to such particular arrangement. The Partnership may offset against any payments to a General Partner removed under this Section 8.13 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 will not be liable as a general partner for any obligations of the Partnership incurred after the effective date of its removal, but shall be and remain liable for all obligations and liabilities incurred by it as General Partner before such removal became effective, including, but not limited to, its obligations set forth in Section 8.09 hereof. (e) The General Partner and the Class A Limited Partner hereby grants to each of the Investment Partnership and BCTC 94, Inc. an irrevocable power of attorney, coupled with an interest, to execute any and all documents on behalf of the Partners and the Partnership as shall be legally necessary and sufficient to effect all of the foregoing provisions of this Section 8.13. The election by the Investment Partnership to remove such General Partner under this Section shall not limit or restrict the availability and use of any other remedy which the Investment Partnership or any other Partner might have with respect to the General Partner in connection with its undertakings and responsibilities under this Agreement. 8.14.
Appears in 1 contract
Withholding of Fee Payments. In the event that (a) a the General Partner Partners or any successor General Partner or the general partner of any Affiliated Limited Partnership Partners shall not have substantially complied with any material provisions under this Agreement or the applicable limited partnership agreementPartnership Agreement, after Notice from BCTC 94 of such noncompliance and failure to cure such noncompliance within a period of thirty (30) days (or such longer period of time as shall be reasonably necessary to effect such cure, if such cure cannot be effected within thirty (30) days and the General Partners are diligently pursuing such cure) from and after the date of such Notice, or (b) any financing commitment of any lender, the Construction Lender or any agreement entered into by the Lender shall have declared the Partnership for financing related to be in default under the Apartment Complex Construction Loan or the property of any Affiliated Limited Partnership shall have terminated prior to their respective termination date(s)Mortgage Loan, as applicable, or (c) foreclosure proceedings shall have been commenced against the Apartment Complex or the property of such Affiliated Limited PartnershipComplex, then (i) such General Partner the Developer shall be in default of this Agreement and the General Partners shall be in default of the Partnership Agreement, and the Partnership shall withhold payment of any installment of fees the Development Fee payable pursuant to Sections 8.10 Section 3(a) of this Agreement and 8.11Section 8.10(a) of the Partnership Agreement, and (ii) the General Partner Partners shall be liable for the Partnership's payment of any and all installments of the Development Fee payable pursuant to Section 8.103(a) of this Agreement and Section 8.10(a) of the Partnership Agreement, to the extent that the Investment Partnership BCTC IV has withheld any Installment(s) pursuant to Section 5.03 of the Partnership Agreement as a result of the a default as described above-described default. All amounts so withheld by the Partnership under this Section 4 or Section 8.12 of the Partnership Agreement shall be promptly released to the Developer only after the Developer and/or the General Partner has Partners have cured the default justifying the withholding, as demonstrated by evidence reasonably acceptable to the Investment Partnership. 8.13. Removal of the General Partner. (a) BCTC 94, Inc., acting on behalf of the Investment Partnership, so long as the Investment Partnership is a Partner, shall have the right to remove any or all General Partners (i) for any intentional misconduct or gross negligence in the discharge of its duties and obligations as a General Partner, or (ii) upon the occurrence of any of the following: (A) such General Partner shall have violated any of the material provisions of the Extended Use Commitment, the Loan Documents, or any provisions of any other Project Document or other document required in connection with the Mortgage Loan, or any provisions of the Agency regulations applicable to the Apartment Complex; (B) such General Partner shall have violated any material provision of this Agreement or any provision of applicable law, which violations shall include, without limitation (i) withdrawal of the General Partner without the Consent of the Investment Partnership pursuant to the Section 6.01(a), (ii) the failure of the General Partner to make Subordinated Loans required under this Agreement or (iii) the failure of a sole General Partner which is a corporation to satisfy the requirements of Section 8.08; (C) such General Partner shall have caused the Mortgage Loan to go into default; or (D) such General Partner shall have conducted its own affairs or the affairs of the Partnership in such manner as would: (1) cause the termination of the Partnership for federal income tax purposes; or (2) cause the Partnership to be treated for federal income tax purposes as an association, taxable as a corporation. (b) BCTC 94, Inc. shall give Notice to all Partners of its determination that any such General Partner shall be removed. The General Partner shall have thirty (30) days after receipt of such Notice to cure any default or other reason for such removal, in which event it shall remain as General Partner. If, at the end of such cure period such General Partner has not cured any default or other reason for such removal, (i) without any further action by any Partner, BCTC 94, Inc. or its designee shall automatically become a General Partner and acquire in consideration of a cash payment of $5 such portion of the Interest of the removed General Partner as counsel to the Investment 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 an equal economic Interest as an Additional Limited Partner, (iii) the economic Interest of BCTC 94, Inc. as the Special Limited Partner shall continue unaffected by the new status of BCTC 94, Inc. 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 hereunder. (c) BCTC 94, Inc. or any successor General Partner proposed by the Special Limited Partner shall have the option, exercisable in its sole discretion, to acquire (i) the Additional Limited Partner Interest of any removed General Partner and/or (ii) the Class A Limited Partner Interest, or any portion thereof, 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 Partner whose Interest is to be purchased, one chosen by the General Partner, 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 Partner whose Interest is to be purchased and the Partnership. The method of payment will be deemed presumptively fair where it provides for a promissory note bearing simple interest at eight percent (8%) per annum coming due in no less than five (5) years with equal installments each year. (d) Upon removal, no General Partner or any Affiliate thereof shall be entitled to receive any fee, compensation or other remuneration from the Partnership, other than the above- described payment for the Interest, or portion thereof, of the Removed General Partner. 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 BCTC 94, Inc. shall have been obtained to such particular arrangement. The Partnership may offset against any payments to a General Partner removed under this Section 8.13 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 will not be liable as a general partner for any obligations of the Partnership incurred after the effective date of its removal, but shall be and remain liable for all obligations and liabilities incurred by it as General Partner before such removal became effective, including, but not limited to, its obligations set forth in Section 8.09 hereof. (e) The General Partner and the Class A Limited Partner hereby grants to each of the Investment Partnership and BCTC 94, Inc. an irrevocable power of attorney, coupled with an interest, to execute any and all documents on behalf of the Partners and the Partnership as shall be legally necessary and sufficient to effect all of the foregoing provisions of this Section 8.13. The election by the Investment Partnership to remove such General Partner under this Section shall not limit or restrict the availability and use of any other remedy which the Investment Partnership or any other Partner might have with respect to the General Partner in connection with its undertakings and responsibilities under this Agreement. 8.14.
Appears in 1 contract
Samples: Development Services Agreement (Boston Capital Tax Credit Fund Iv Lp)
Withholding of Fee Payments. In the event that (a) a General Partner or any successor General Partner or the general partner of any Affiliated Limited Partnership shall not have substantially complied with any material provisions under this Agreement thisAgreement or the applicable limited partnership agreement, or (b) any financing commitment of any lender, or any agreement entered into by the Partnership thePartnership for financing related to the Apartment Complex or the property of any Affiliated Limited Partnership shall have terminated prior to their respective termination date(s), or (c) foreclosure proceedings shall have been commenced against the Apartment Complex or the property of such Affiliated suchAffiliated Limited Partnership, then (i) such General Partner shall be in default of this Agreement, and the Partnership shall withhold payment of any installment of fees payable pursuant to Sections 8.10 and 8.11, and (ii) the General Partner shall be liable for the Partnership's payment of any and all installments of the Development Fee payable pursuant to Section 8.10, to the extent that the Investment Partnership has withheld any Installment(s) pursuant to Section 5.03 as a result of the above-described default. All amounts so withheld by the Partnership under this Section 8.12 shall be promptly released only after the General Partner has cured the default justifying the withholding, as demonstrated by evidence reasonably acceptable to the Investment Partnership. 8.13. Removal of the General Partner. (a) BCTC 94, Inc., acting on behalf of the Investment Partnership, so long as the Investment Partnership is a Partner, shall have the right to remove any or all General Partners GeneralPartners (i) for any intentional misconduct or gross negligence in the discharge of its duties and obligations as a General Partner, or (ii) upon the occurrence of any of the following: (A) such General Partner shall have violated any of the material provisions of the Extended Use Commitment, the Loan Documents, or any provisions of any other Project Document or other document required in connection with the Mortgage Loan, ,or any provisions of the Agency regulations applicable to the Apartment Complex; (B) such General Partner shall have violated any material provision of this Agreement or any provision of applicable law, which violations shall include, without limitation (i) withdrawal of the General Partner without the Consent of the Investment Partnership pursuant to the Section 6.01(a), (ii) the failure of the General Partner to make Subordinated Loans required under this Agreement or (iii) the failure of a sole General Partner which is a corporation to satisfy the requirements of Section 8.08; (C) such General Partner shall have caused the Mortgage Loan to go into default; or (D) such General Partner shall have conducted its own affairs or the affairs of the Partnership in such manner as would: (1) cause the termination of the Partnership for federal income tax purposes; or (2) cause the Partnership to be treated for federal income tax purposes as an association, taxable as a corporation. (b) BCTC 94, Inc. shall give Notice to all Partners of its determination that any such General Partner shall be removed. The General Partner shall have thirty (30) days after receipt of such Notice to cure any default or other reason for such removal, in which event it shall remain as General Partner. If, at the end of such cure period such General Partner has not cured any default or other reason for such removal, (i) without any further action by any Partner, BCTC 94, Inc. or its designee shall automatically become a General Partner and acquire in consideration of a cash payment of $5 such portion of the Interest of the removed General Partner as counsel to the Investment 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 an equal economic Interest as an Additional Limited Partner, (iii) the economic Interest of BCTC 94, Inc. as the Special Limited Partner shall continue unaffected by the new status of BCTC 94, Inc. 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 hereunder. (c) BCTC 94, Inc. or any successor General Partner proposed by the Special Limited Partner shall have the option, exercisable in its sole discretion, to acquire (i) the Additional Limited Partner Interest of any removed General Partner and/or (ii) the Class A Limited Partner Interest, or any portion thereof, 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 Partner whose Interest is to be purchased, one chosen by the General Partner, 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 Partner whose Interest is to be purchased and the Partnership. The method of payment will be deemed presumptively fair where it provides for a promissory note bearing simple interest at eight percent (8%) per annum coming due in no less than five (5) years with equal installments each year. (d) Upon removal, no General Partner or any Affiliate thereof shall be entitled to receive any fee, compensation or other remuneration from the Partnership, other than the above- described payment for the Interest, or portion thereof, of the Removed General Partner. 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 BCTC 94, Inc. shall have been obtained to such particular arrangement. The Partnership may offset against any payments to a General Partner removed under this Section 8.13 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 will not be liable as a general partner for any obligations of the Partnership thePartnership incurred after the effective date of its removal, but shall be and remain liable for all obligations and liabilities incurred by it as General Partner before such removal became effective, including, but not limited to, its obligations set forth in Section 8.09 hereof. (e) The General Partner and the Class A Limited Partner hereby grants to each of the Investment Partnership and BCTC 94, Inc. an irrevocable power of attorney, coupled with an interest, to execute any and all documents on behalf of the Partners and the Partnership as shall be legally necessary and sufficient to effect all of the foregoing provisions of this Section thisSection 8.13. The election by the Investment Partnership to remove such General Partner under this Section thisSection shall not limit or restrict the availability and use of any other remedy which the Investment Partnership or any other Partner might have with respect to the General Partner in connection with its undertakings and responsibilities under this Agreement. 8.14.
Appears in 1 contract
Withholding of Fee Payments. In the event that (a) a General Partner or any successor General Partner or the general partner of any Affiliated Limited Partnership shall not have substantially complied with any material provisions under this Agreement or the applicable limited partnership agreement, or (b) any financing commitment of any lender, or any agreement entered into by the Partnership for financing related to the Apartment Complex or the property of any Affiliated Limited Partnership shall have terminated prior to their respective termination date(s), or (c) foreclosure proceedings shall have been commenced against the Apartment Complex or the property of such Affiliated Limited Partnership, then (i) such General Partner shall be in default of this Agreement, and the Partnership shall withhold payment of any installment of fees payable pursuant to Sections 8.10 and 8.11, and (ii) the General Partner shall be liable for the Partnership's payment of any and all installments of the Development Fee payable pursuant to Section 8.10, to the extent that the Investment Partnership has withheld any Installment(s) pursuant to Section 5.03 as a result of the above-described default. All amounts so withheld by the Partnership under this Section 8.12 shall be promptly released only after the General Partner has cured the default justifying the withholding, as demonstrated by evidence reasonably acceptable to the Investment Partnership. 8.13. Removal of the General Partner. (a) BCTC 94, Inc., acting on behalf of the Investment Partnership, so long as the Investment Partnership is a Partner, shall have the right to remove any or all General Partners Partner (i) for any intentional misconduct or gross negligence in the discharge of its duties and obligations as a General PartnerPartner (provided that such misconduct or failure results in, or is likely to result in, a material detriment to or an impairment of the Apartment Complex or assets of the Partnership), or (ii) upon the occurrence of any of the following: (A) such General Partner shall have violated any of the material provisions of: (i) the Loan Documents, including a payment default which continues uncured for a period of thirty (30) days during the first ten years of the term of the City Loan; in years 11-15 of the City Loan and in the event that the HUD Section 8 Contracts are not renewed, then a material default under the City Loan Documents shall not include a payment default; in the event that the HUD Section 8 Contracts are renewed in any event after said ten years, including on an annual basis during years 11-15, then any payment default which continues uncured for a period of thirty (30) days under the City Loan Documents shall be considered a material default; (ii) the Extended Use Commitment, the Loan Documents, or ; (iii) any provisions of any other Project Document or other document required in connection with the Mortgage LoanLoans, or (iv) any provisions of the Agency regulations applicable to the Apartment Complex; (B) such General Partner shall have violated any material provision of this Agreement or any provision of applicable law, which violations shall include, without limitation (i) withdrawal of the General Partner without the Consent of the Investment Partnership pursuant to the Section 6.01(a), (ii) the failure of the General Partner to make Subordinated Loans required under this Agreement or (iii) the failure of a sole General Partner which is a corporation to satisfy the requirements of Section 8.08; (C) such General Partner shall have caused the Mortgage Loan either Loans to go into default; or (D) such General Partner shall have conducted its own affairs or the affairs of the Partnership in such manner as would: (1) cause the termination of the Partnership for federal income tax purposes; or (2) cause the Partnership to be treated for federal income tax purposes as an association, taxable as a corporation. (b) BCTC 94, Inc. shall give Notice to all Partners of its determination that any such General Partner shall be removed. The General Partner shall have thirty sixty (3060) days after receipt of such Notice to cure any default or other reason for such removal, or to provide BCTC 94, Inc. with evidence satisfactory to BCTC 94, Inc. that the General Partner is diligently pursuing the cure of said default or remedy for other reason for such removal, in which event it shall remain as General Partner. If, at the end of such cure period such General Partner has not cured any default or other reason for such removal, or has not provided BCTC 94, Inc. at least five (5) days prior to the end of such cure period, with evidence that such General Partner is proceeding diligently to the satisfaction of BCTC 94, Inc., to cure said default or other reason for such removal, then (i) without any further action by any Partner, BCTC 94, Inc. or its designee shall automatically become a General Partner and acquire in consideration of a cash payment of $5 such portion of the Interest of the removed General Partner as counsel to the Investment 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 an equal economic Interest as an Additional Limited Partner, provided that such removed General Partner and any guarantor of its obligations shall have no further liability to the Partnership or the Partners for liabilities incurred after the date of withdrawal, but shall be and remain liable for all obligations and liabilities incurred by such removed General Partner, or arising out of any events occurring before such removal became effective, including but not limited to its obligations set forth in Section 8.09 hereof. Additionally, the loans previously made to the Partnership by the removed General Partner will be paid when properly due and payable according to their respective loan terms, except that the Partnership may offset against any payments due thereunder to a General Partner removed under this Section 8.13, any damages suffered by the Partnership as a result of any breach of the obligations of such General Partner hereunder, (iii) the economic Interest of BCTC 94, Inc. as the Special Limited Partner shall continue unaffected by the new status of BCTC 94, Inc. 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 Partner hereunder. (c) BCTC 94, Inc. or any successor General Partner proposed by the Special Limited Partner shall have the option, exercisable in its sole discretion, to acquire (i) the Additional Limited Partner Interest of any removed General Partner and/or (ii) the Class A 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. 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 Partner whose Interest is to be purchasedremoved General Partner, one chosen by the successor General Partner, 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 whose Interest is to be purchased and the Partnership. The method of payment will be deemed presumptively fair where it provides for a promissory note bearing simple interest at eight nine percent (89%) per annum coming due in no less than five (5) years with equal installments each year, and a cash down payment of fifteen percent (15%), and may provide for a mortgage to secure said promissory note in the event that such promissory note exceeds $100,000. (d) Upon removal, no General Partner or any Affiliate thereof shall be entitled to receive any fee, compensation or other remuneration from the Partnership, other than the above- described payment for the Interest, or portion thereof, of the Removed General PartnerPartner or pursuant to Section 8.13(b) above. 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 BCTC 94, Inc. shall have been obtained to such particular arrangement. The Partnership may offset against any payments to a General Partner removed under this Section 8.13 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 will not be liable as a general partner for any obligations of the Partnership incurred after the effective date of its removal, but shall be and remain liable for all obligations and liabilities incurred by it as General Partner before such removal became effective, including, but not limited to, its obligations set forth in Section 8.09 hereof. (e) The General Partner and the Class A Limited Partner hereby grants to each of the Investment Partnership and BCTC 94, Inc. an irrevocable power of attorney, coupled with an interest, to execute any and all documents on behalf of the Partners and the Partnership as shall be legally necessary and sufficient to effect all of the foregoing provisions of this Section 8.13. The election by the Investment Partnership to remove such General Partner under this Section shall not limit or restrict the availability and use of any other remedy which the Investment Partnership or any other Partner might have with respect to the General Partner in connection with its their undertakings and responsibilities under this Agreement. 8.14.
Appears in 1 contract
Samples: Boston Capital Tax Credit Fund Iv Lp
Withholding of Fee Payments. In the event that (a) a the General Partner or any successor General Partner or the general partner of any Affiliated Limited Partnership shall not have substantially complied with any material provisions under this Agreement or the applicable limited partnership agreementAgreement, or (b) any financing commitment of the Lender, the Second Lender, or any other lender, or any agreement entered into by the Partnership for financing related to the Apartment Complex or the property of any Affiliated Limited Partnership shall have terminated prior to their respective termination date(s), or (c) foreclosure proceedings shall have been commenced against the Apartment Complex or the property of such Affiliated Limited PartnershipComplex, then (i) such the General Partner shall be in default of this Agreement, and the Partnership shall withhold payment of any installment of fees payable to the Developer, pursuant to Sections 8.10 Section 8.10, and to the General Partner, pursuant to Section 8.11, and (ii) the General Partner shall be liable for the Partnership's payment of any and all installments of the Development Fee payable pursuant to Section 8.10, to the extent that the Investment Partnership has withheld any Installment(s) pursuant to Section 5.03 as a result of the above-described default. All amounts so withheld by the Partnership under this Section Sec- tion 8.12 shall be promptly released only after the General Partner has cured the default justifying the withholding, as demonstrated by evidence reasonably acceptable to the Investment PartnershipBCTC 94. 8.13. Removal of the General Partner. (a) BCTC 94, Inc., acting on behalf of the Investment Partnership, so long as the Investment Partnership is a Partner, shall have the right to remove any or all the General Partners Partner (i) for any intentional misconduct or gross negligence failure to exercise reasonable care with respect to any material matter in the discharge of its duties and obligations as General Partner (provided that such misconduct or failure results in, or is likely to result in, a General Partnermaterial detriment to or an impairment of the Apartment Complex or assets of the Partnership), or (ii) upon the occurrence of any of the following: following (except to the extent that any such violation or action described in (A) such or (C) below is a result of events beyond the General Partner's reasonable control): (A) the General Partner shall have materially violated any of the material provisions of the Extended Use Commitment, FHLB Grant Agreement and/or the Loan DocumentsRegulatory Agreement and/or the Declaration of Covenants, or any provisions of any other Project Document or other document required in connection with the Mortgage Loan, the Second Loan, or the FHLB Grant, or any provisions of the HUD, Lender and/or Agency regulations applicable to the Apartment Complex; (B) such the General Partner shall have materially violated any material provision of this Agreement Agreement, or materially violated any provision of applicable law, which violations shall includeviolation, without limitation (i) withdrawal of in either case, results in a material adverse effect on the General Partner without the Consent of the Investment Partnership pursuant to the Section 6.01(a), (ii) the failure of the General Partner to make Subordinated Loans required under this Agreement or (iii) the failure of a sole General Partner which is a corporation to satisfy the requirements of Section 8.08and/or its operations; (C) such the General Partner shall have caused the Mortgage Loan or the Second Loan to go into defaultdefault and such default remains uncured beyond the time provided for cure thereof by the terms of the applicable Project Documents; or (D) such the General Partner shall have conducted its own affairs or the affairs of the Partnership in such manner as would: (1) cause the termination of the Partnership for federal income tax purposes; or (2) cause the Partnership to be treated for federal income tax purposes as an association, taxable as a corporation. (b) BCTC 94, Inc. 94 shall give Notice to all Partners and to the Lender and the Second Lender of its determination that any such the General Partner shall be removedremoved and of the reasons for such determination. The General Partner shall have thirty (30) days after receipt of such Notice to cure any default or other reason for such removal, in which event it shall remain as General Partner. If, at the end of such cure period such thirty (30) day period, the General Partner has not cured any default or other reason for such removal, (i) it shall cease to be General Partner and the powers and authorities conferred on it as General Partner under this Agreement shall cease and the Interest of such General Partner shall be transferred to BCTC 94 which, without any further action by any Partneraction, BCTC 94, Inc. or its designee shall automatically become a General Partner and acquire in consideration of a cash payment of $5 such portion of the Interest of the removed General Partner as counsel to the Investment 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 an equal economic Interest as an Additional Limited Partner, (iii) the economic Interest of BCTC 94, Inc. as the Special Limited Partner shall continue unaffected by the new status of BCTC 94, Inc. 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 hereunder. (c) BCTC 94, Inc. or any successor General Partner proposed by the Special Limited Partner shall have the option, exercisable in its sole discretion, to acquire (i) In the Additional Limited Partner Interest of any removed event that the General Partner and/or (ii) the Class A Limited Partner Interest, or any portion thereof, upon payment of the agreed or then present fair market value of such Interest or portion thereof. Any dispute is removed as aforesaid prior 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 appraisersFinal Closing, one chosen by the Partner whose Interest is to be purchased, one chosen by the General Partner, 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 Partner whose Interest is to be purchased and the Partnership. The method of payment will be deemed presumptively fair where it provides for a promissory note bearing simple interest at eight percent (8%) per annum coming due in no less than five (5) years with equal installments each year. (d) Upon removal, no General Partner or any Affiliate thereof shall be entitled to receive any fee, compensation or other remuneration from the Partnership, other than the above- described payment for the Interest, or portion thereof, of the Removed General Partner. 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 BCTC 94, Inc. shall have been obtained to such particular arrangement. The Partnership may offset against any payments to a General Partner removed under this Section 8.13 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 will not be liable as a general partner for any obligations of the Partnership incurred after the effective date of its removal, but shall be and shall remain liable for all obligations and liabilities incurred by it as General Partner of the Partnership before such removal became shall become effective, including, including but not limited to, to the obligations and liabilities of the General Partner with respect to its obligations set forth in Section 8.09 hereofof this Agreement with regard to Excess Development Costs; provided however, that if amounts otherwise payable as fees are applied to meet the General Partner's obligations stated in Sections 5.03 and 8.09 of this Agreement, such application shall serve to reduce any such liabilities of the General Partner or any successor, except for any liability incurred as the result of its negligence, misconduct, fraud or breach of its fiduciary duties as General Partner of the Partnership. If the General Partner is removed as a Partner of the Partnership prior to the Final Closing as aforesaid, neither the Developer nor the General Partner shall be entitled to payment of any further installments of the Development Fee or other fees which otherwise would have been due and payable under various Sections of this Article VIII. (eii) The In the event that the General Partner is removed as aforesaid after the Final Closing, it shall be and the Class A Limited shall remain liable for all obligations and liabilities incurred by it as General Partner hereby grants to each of the Investment Partnership before such removal shall become effective, including but not limited to the General Partner's obligations and liabilities under Section 8.09(b) of this Agreement; provided, however, that if amounts otherwise payable to the General Partner or the Developer as fees are applied by the Partnership to pay Operating Deficits, such application shall serve to reduce any such liabilities after the Final Closing, except for any liability incurred as the result of its negligence, misconduct, fraud or breach of its fiduciary duty as the General Partner of the Partnership. If the General Partner is removed as a Partner of the Partnership at any time after the Final Closing, the Developer shall continue to be paid subsequent to such removal, in accordance with the terms and conditions of this Agreement, any installments of the Development Fee which would otherwise have been due and payable to it pursuant to Section 8.10, and which are not otherwise being withheld; provided, however, upon any such removal of the General Partner after the Final Closing, no further installments of the Incentive Partnership Management Fee shall be paid which are attributable to any period after such removal. (d) BCTC 94, Inc. 94 hereby is granted an irrevocable power of attorney, coupled with an interest, to execute any and all documents on behalf of the Partners and the Partnership as shall be legally necessary and sufficient to effect all of the foregoing provisions of this Section 8.13. The election by the Investment Partnership BCTC 94 to remove such the General Partner under this Section shall not limit or restrict the availability and use of any other remedy which the Investment Partnership Partnership, BCTC 94 or any other Partner might have with respect to the General Partner in connection with its undertakings and responsibilities under this Agreement. 8.14.
Appears in 1 contract
Samples: Boston Capital Tax Credit Fund Iv Lp
Withholding of Fee Payments. In the event that (a) a the General Partner or any successor General Partner or the general partner of any Affiliated Limited Partnership shall not have substantially complied with any material provisions under this Agreement or the applicable limited partnership agreementAgreement, or (b) any financing commitment of the First Mortgage Lender, the Second Mortgage Lender or any other lender, or any agreement entered into by the Partnership for financing related to the Apartment Complex or the property of any Affiliated Limited Partnership shall have terminated prior to their respective termination date(s), or (c) foreclosure proceedings shall have been commenced against the Apartment Complex or the property of such Affiliated Limited PartnershipComplex, then (i) such the General Partner shall be in default of this Agreement, and the Partnership shall withhold payment of any installment of fees payable to the General Partner pursuant to Sections 8.10 and and/or 8.11, and (ii) the General Partner shall be liable for the Partnership's payment of any and all installments of the unpaid Development Fee payable pursuant to Section 8.10, to the extent that the Investment Partnership has withheld any Installment(s) pursuant to Section 5.03 as a result of the above-described default. All amounts so withheld by the Partnership under this Section 8.12 shall be promptly released to the General Partner only after the General Partner has cured the default justifying the withholding, as demonstrated by evidence reasonably acceptable to the Investment PartnershipBCTC 94. 8.13. Removal of the General Partner. (a) BCTC 94, Inc., acting on behalf of the Investment Partnership, so long as the Investment Partnership is a Partner, shall have the right to remove any or all a General Partners Partner (i) for any intentional misconduct or gross negligence failure to exercise reasonable care with respect to any material matter in the discharge of its duties and obligations as a General PartnerPartner (provided that such violation results in, or is likely to result in, a material detriment to or an impairment of the Apartment Complex or assets of the Partnership), or (ii) upon the occurrence of any of the following: (A) such the General Partner shall have violated any of the material provisions of the Extended Use Commitment, the Loan DocumentsRegulatory Agreement, or any provisions of any other Project Document or other document required in connection with the First Mortgage Loan or the Second Mortgage Loan, or any provisions of the Agency regulations applicable to the Apartment Complex; (B) such the General Partner shall have violated any material provision of this Agreement Agreement, or violated any provision of applicable law, which violations shall include, without limitation (i) withdrawal of the General Partner without the Consent of the Investment Partnership pursuant to the Section 6.01(a), (ii) the failure of the General Partner to make Subordinated Loans required under this Agreement or (iii) the failure of a sole General Partner which is a corporation to satisfy the requirements of Section 8.08; (C) such General Partner shall have caused the Mortgage Loan to go into default; or (D) such General Partner shall have conducted its own affairs or the affairs of the Partnership in such manner as would: (1) cause the termination of the Partnership for federal income tax purposes; or (2) cause the Partnership to be treated for federal income tax purposes as an association, taxable as a corporation. (b) BCTC 94, Inc. shall give Notice to all Partners of its determination that any such General Partner shall be removed. The General Partner shall have thirty (30) days after receipt of such Notice to cure any default or other reason for such removal, in which event it shall remain as General Partner. If, at the end of such cure period such General Partner has not cured any default or other reason for such removal, (i) without any further action by any Partner, BCTC 94, Inc. or its designee shall automatically become a General Partner and acquire in consideration of a cash payment of $5 such portion of the Interest of the removed General Partner as counsel to the Investment 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 an equal economic Interest as an Additional Limited Partner, (iii) the economic Interest of BCTC 94, Inc. as the Special Limited Partner shall continue unaffected by the new status of BCTC 94, Inc. 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 hereunder. (c) BCTC 94, Inc. or any successor General Partner proposed by the Special Limited Partner shall have the option, exercisable in its sole discretion, to acquire (i) the Additional Limited Partner Interest of any removed General Partner and/or (ii) the Class A Limited Partner Interest, or any portion thereof, 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 Partner whose Interest is to be purchased, one chosen by the General Partner, 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 Partner whose Interest is to be purchased and the Partnership. The method of payment will be deemed presumptively fair where it provides for a promissory note bearing simple interest at eight percent (8%) per annum coming due in no less than five (5) years with equal installments each year. (d) Upon removal, no General Partner or any Affiliate thereof shall be entitled to receive any fee, compensation or other remuneration from the Partnership, other than the above- described payment for the Interest, or portion thereof, of the Removed General Partner. 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 BCTC 94, Inc. shall have been obtained to such particular arrangement. The Partnership may offset against any payments to a General Partner removed under this Section 8.13 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 will not be liable as a general partner for any obligations of the Partnership incurred after the effective date of its removal, but shall be and remain liable for all obligations and liabilities incurred by it as General Partner before such removal became effective, including, but not limited to, its obligations set forth in Section 8.09 hereof. (e) The General Partner and the Class A Limited Partner hereby grants to each of the Investment Partnership and BCTC 94, Inc. an irrevocable power of attorney, coupled with an interest, to execute any and all documents on behalf of the Partners and the Partnership as shall be legally necessary and sufficient to effect all of the foregoing provisions of this Section 8.13. The election by the Investment Partnership to remove such General Partner under this Section shall not limit or restrict the availability and use of any other remedy which the Investment Partnership or any other Partner might have with respect to the General Partner in connection with its undertakings and responsibilities under this Agreement. 8.14.;
Appears in 1 contract
Samples: Boston Capital Tax Credit Fund Iv Lp
