EXHIBIT 3(n)
Limited Partnership Agreement ofCRIIMI MAE Services
Limited Partnership
LIMITED PARTNERSHIP AGREEMENT OF
CRIIMI MAE SERVICES LIMITED PARTNERSHIP
THIS LIMITED PARTNERSHIP AGREEMENT ("Agreement") of CRIIMI MAE Services
Limited Partnership (the "Partnership") shall be effective as of June 1, 1995,
between CRIIMI MAE Management, Inc., a Maryland corporation (the "General
Partner"), and CRIIMI MAE Services, Inc., a Maryland corporation (the "Limited
Partner").
ARTICLE I
1.1 Definitions. In addition to the defined terms set forth herein, the
capitalized terms set forth in Appendix A shall have the meanings set forth in
Appendix A.
ARTICLE II
FORMATION, NAME, PURPOSES AND OFFICES
2.1 Organization. The Partners hereby confirm and ratify the organization
and formation of the Partnership as a limited partnership pursuant to the
provisions of the Act for the limited purposes set forth in Section 2.3 below
and upon the terms and conditions set forth in this Agreement.
2.2 Partnership Name. The name of the Partnership shall be CRIIMI MAE
Services Limited Partnership, and all business of the Partnership shall be
conducted in such name or such other name as the General Partner shall select.
2.3 Purposes. The purposes and business of the Partnership shall be to
(a) perform any and all activities related to the origination, management,
servicing, holding and/or disposition of real estate loans, (b) provide real
estate advisory, asset management, and other services to commercial entities,
and (c) engage in any and all activities related or incidental to the foregoing.
2.4 Registered Office. The registered office of the Partnership in the
State of Maryland is The CRI Building, 00000 Xxxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxx
00000 and the name of the registered agent for service of process is CRICO
Services Corporation. The General Partner may change the registered office of
the Partnership to any other place within the State of Maryland upon ten (10)
days' written notice to the Limited Partners and the preparation and filing of
an amendment of the Certificate of Limited Partnership of the Partnership
reflecting such change, if required. The principal office of the Partnership
shall be located at The CRI Building, 00000 Xxxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxx
00000. The Partnership may maintain other offices at such other locations as
the General Partner shall determine from time to time.
2.5 Term. The term of the Partnership shall commence on the filing of a
Certificate of Limited Partnership in the State of Maryland, and shall continue
until the earlier of (i) December 31, 2034; or (ii) the winding up and
liquidation of the Partnership and its business following an event of
dissolution as described in Section 9.1 hereof.
2.6 Filings.
(a) The General Partner shall take any and all actions reasonably
necessary to perfect and maintain the status of the Partnership as a limited
partnership under the laws of the State of Maryland and any other states or
jurisdictions in which the Partnership engages in business. The General Partner
shall cause amendments to the Certificate to be filed whenever required by the
Act and/or such other laws. Such amendments may be executed by the General
Partner on behalf of the Partnership and the Limited Partners.
(b) Upon the dissolution of the Partnership, the General Partner
shall promptly execute and cause to be filed a certificate of cancellation in
accordance with the Act and other filings required under the laws of any other
states or jurisdictions in which the Partnership conducts business.
(c) The General Partner shall promptly deliver copies of all filings
made on behalf of the Partnership in accordance with this Section to the Limited
Partners.
2.7 Independent Activities. Except as otherwise agreed to in writing,
each of the Partners and any Affiliates shall be free to engage in, to conduct
or to participate in any business or activity whatsoever, including, without
limitation, the ownership and/or servicing of real estate mortgages. The
General Partner, in the exercise of its rights, powers and authority under this
Agreement, may contract or otherwise deal with or otherwise obligate the
Partnership to entities in which the General Partner or any one or more of its
or any Affiliate's, officers, directors, employees, agents, stockholders or
partners may have a direct or indirect ownership or other financial interest.
Neither this Agreement nor any activity undertaken pursuant hereto shall prevent
any Partner from engaging in the activities specified above, or require any
Partner to permit the Partnership or any Partner to participate in any such
activities, and as a material part of the consideration for the execution of
this Agreement by each Partner, each Partner hereby waives, relinquishes and
renounces any such right or claim of participation.
ARTICLE III
PARTNER'S CAPITAL CONTRIBUTIONS AND LOANS
3.1 Capital Contributions of the Partners. Each Partner shall make
initial Capital Contributions as set forth below which Capital Contributions are
agreed to have the values set forth to the immediate right of the Partner's name
on Exhibit A hereto. The Partners shall not be required to make any Additional
Capital Contribution to the Partnership.
(a) The General Partner will contribute the following assets to the
Partnership together with any and all rights which the General Partner may have
with respect to such assets:
Asset Value
Pooling and Servicing $538,000
Agreement and Subservicing
Agreement with Respect to
Series 1994-MC1
Software License Agreement $0
dated November 12, 1992, between
Financial Industry Computer
Systems, Inc. and C.R.I., Inc.
(b) The Limited Partner will contribute the following assets to the
Partnership together with any and all rights which the Limited Partner may have
to such assets including, but not limited to, all rights of the Limited Partner
under the agreements pursuant to which the Limited Partner acquired such assets:
Assets Value
Four separate Submanagement Agreements $5,198,418
each dated as of March 1, 1991 between
AIM Acquisition Partners, L.P. and
CRI/AIM Management, Inc. dealing,
respectively, with respect to American
Insured Mortgage Investors, Integrated
Resources American Insured Mortgage Investors
- Series 85, American Insured Mortgage
Investors - Series 86, and American Insured
Mortgage Investors L.P. - Series 88.
Servicing Agreements previously held $1,387,546
by CRICO Mortgage Company, Inc., being
listed on the attached Appendix B.
(c) Each Partner warrants that it has full power and authority to
assign the assets being contributed by it. Each Partner will hold the
Partnership harmless from any claim that such Partner lacks the authority to
assign the assets being contributed by it.
(d) The Partnership will assume all of the obligations under each
agreement contributed to it except that the contributing Partner will hold the
Partnership harmless from any and all liabilities which accrued prior to, or are
the result of events which occurred prior to, the effective date of the
contribution.
3.2 Additional Capital Contributions; Loans. With the consent of the
General Partner, any Partner may from time to time make Additional Capital
Contributions or loans to the Partnership. The General Partner shall give to
the Limited Partners prompt written notice of the making of any Additional
Capital Contribution or loan. Any such loan made to the Partnership shall be
evidenced by a promissory note, which promissory note shall bear interest at the
lesser of (x) the highest rate permit by applicable law, or (y) the Prime Rate
plus two percent. The General Partner shall be entitled to use its discretion
and judgment in determining when Additional Capital Contributions or loans are
desirable.
3.3 Capital Accounts. A separate Capital Account shall be established for
each Partner (each a "Capital Account") on the books of the Partnership on the
date on which such Partner makes its initial Capital Contribution, as provided
herein, and maintained in the manner set out in Appendix A. The foregoing
provisions and other provisions of this Agreement relating to the maintenance of
Capital Accounts are intended to comply with Section 1.704-1(b) and 1.704-2 of
the Regulations and shall be interpreted and applied in a manner consistent with
such Regulations.
3.4 Other Matters.
(a) Except as otherwise provided in Section 4.1 and 10.1 of this
Agreement, no Partner shall demand or
receive a return of its Capital Contribution. Under circumstances requiring a
return of any Capital Contribution, no Partner shall have the right to receive
property other than cash except as may be specifically provided herein or as
agreed to by the General Partner and a Majority in Interest of the Limited
Partners.
(b) No Partner shall receive any interest with respect to its Capital
Contribution or its Capital Account, except as otherwise provided in this
Agreement.
(c) The Limited Partners shall not be personally liable for the
debts, liabilities, contracts or any other obligations of the Partnership.
ARTICLE IV
DISTRIBUTIONS
4.1 Distributions of Net Cash Flow. The Partnership shall distribute to
the Partners any Net Cash Flow at such times as the General Partner shall
reasonably determine to be appropriate, but not less frequently than quarterly;
provided, however, to the extent a distribution or payment of cash would, with
the passage of time or the giving of notice or both, become an event of default
under any Partnership contract or obligation, the distribution or payment of Net
Cash Flow shall be limited to such amount that would not precipitate such an
event of default. Distributions of Net Cash Flow shall be made proportionately
to all Partners in accordance with their percentages of Partnership Interest as
such percentages may change from time to time.
ARTICLE V
ALLOCATIONS
5.1 Allocation of Profits. After giving effect to the special allocations
set forth in Sections 5.3 and 5.4 hereof, Profits for any Fiscal Year shall be
allocated to the Partners in the following order:
(a) first, to the Partners having deficit balances in their Capital
Accounts (computed after taking into account any other Profits or Losses
for the Fiscal Year and all distributions pursuant to Article IV with
respect to such Fiscal Year and after adding back each Partner's share, if
any, of Partner Nonrecourse Debt Minimum Gain or Partnership Minimum Gain)
in proportion to such deficits until the deficits are eliminated; and
(b) any remaining such Profits shall be allocated proportionately to
all Partners in accordance with their percentages of Partnership Interest
as such percentages may change from time to time.
5.2 Allocations of Losses. After giving effect to the special allocations
set forth in Section 5.3 and 5.4 hereof, Losses for any Fiscal Year shall be
allocated as set forth in Section 5.2(a) below, subject to the limitation of
Section 5.2(b) below.
(a) Losses for any Fiscal Year shall be allocated among the Partners
so as to produce balances in the Capital Accounts (computed as described in
clause (a) of Section 5.1) after the allocation of Profits pursuant to this
clause (a) for the Partners such that a distribution of an amount of cash
equal to such Capital Account Balances at the end of the Fiscal Year in
accordance with such Capital Account balances would be in the amounts,
sequences and priority set forth in Article IV.
(b) The Losses allocated pursuant to Section 5.2(a) hereof shall not
exceed the maximum amount of Losses that can be so allocated without
causing any Limited Partner to have an Adjusted Capital Account Deficit
(determined after all cash distributions for the Fiscal Year) at the end of
the Fiscal Year for which the allocation relates. All Losses in excess of
the limitation set forth in the preceding sentence shall be allocated among
those Limited Partners which will not have an Adjusted Capital Account
Deficit at the end of the Fiscal Year in the ratio of their relative
Partnership Interests. In any Fiscal Year in which all the Limited
Partners will have an Adjusted Capital Account Deficit, all Losses in
excess of the limitations described in the first two sentences of this
Section 5.2(b) shall be allocated to the General Partner.
5.3 Special Allocations. The following special allocations shall be made
in the following order:
(a) Minimum Gain Chargeback. Notwithstanding any other provisions of
this Article V, except as provided in Regulation Section 1.704-2(f), if
there is a net decrease in Partnership Minimum Gain during any Fiscal Year,
each Partner shall be allocated items of Partnership income and gain for
such year (and, if necessary, subsequent years) in an amount equal to such
Partner's share of the net decrease in Partnership Minimum Gain, determined
in accordance with Regulations Section 1.704-2(g). Allocations pursuant to
the previous sentence shall be made in proportion to the respective amounts
required to be allocated to each Partner pursuant thereto. The items to be
so allocated shall be determined in accordance with Sections 1.704-2(f)(6)
and 1.704-2(j)(2) of the Regulations. This Section 5.3(a) is intended to
comply with the minimum gain chargeback requirement in Section 1.704-2(f)
of the Regulations and shall be interpreted consistently therewith.
(b) Chargeback of Partner Nonrecourse Debt Minimum Gain.
Notwithstanding the other provisions of this Article V (other than Section
5.3(a), except as provided in Regulation Section 1.704-2(i)(4)), if there
is a net decrease in Partner Nonrecourse Debt Minimum Gain during any
Partnership Fiscal Year, any Partner with a share of Partner Nonrecourse
Debt Minimum Gain, determined in accordance with Section 1.704-2(i)(5) of
the Regulations, shall be allocated items of Partnership income and gain
for such period (and if necessary, subsequent periods) in an amount equal
to such Partner's share of the net decrease in Partner Nonrecourse Debt
Minimum Gain attributable to such Partner Nonrecourse Debt, determined in
accordance with Regulations Section 1.704-2(i)(4). Allocations pursuant to
the previous sentence shall be made in proportion to the respective amounts
required to be allocated to each Partner pursuant thereto. The items to be
so allocated shall be determined in accordance with Section 1.704-2(i)(4)
and 1.704-2(j)(2) of the Regulations. This Section 5.3(b) is intended to
comply with the minimum gain chargeback requirement in Section 1.704(i)(4)
of the Regulations and shall be interpreted consistently therewith.
(c) Qualified Income Offset. In the event any Limited Partner
unexpectedly receives any adjustments, allocations, or distributions
described in Section 1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5), or
1.704-1(b)(2)(ii)(d)(6) of the Regulations, items of Partnership income and
gain shall be specially allocated to each such Limited Partner in an amount
and manner sufficient to eliminate, to the extent required by the
Regulations, the Adjusted Capital Account Deficit of such Limited Partner
as quickly as possible, provided that an allocation pursuant to this
Section 5.3(c) shall be made only if and to the extent that such Limited
Partner would have an Adjusted Capital Account Deficit after all other
allocations provided for in this Article V have been tentatively made as if
this Section 5.3(c) were not in this Agreement. This Section 5.3(c) is
intended to constitute a "qualified income offset" within the meaning of
Regulations Section 1.704-1(b)(2)(ii), and shall be interpreted
consistently therewith.
(d) Gross Income Allocation. In the event any Limited Partner has a
deficit Capital Account at the end of any Fiscal Year which is in excess of
the sum of (i) the amount such Limited Partner is obligated to restore
pursuant to any provision of this Agreement and (ii) the amount such
Limited Partner is deemed to be obligated to restore pursuant to the
penultimate sentences of Regulations Section 1.704-2(g)(1) and 1.704-
2(i)(5), each such Limited Partner shall be specially allocated items of
Partnership income and gain in the amount of such excess as quickly as
possible, provided that an allocation pursuant to this Section 5.3(d) shall
be made only if and to the extent that such Limited Partner would have a
deficit Capital Account in excess of such sum after all other allocations
provided for in this Article V have been made as if Section 5.3(c) and
Section 5.3(d) were not in this Agreement.
(e) Nonrecourse Deductions. Nonrecourse Deductions for any Fiscal
Year shall be allocated to the Partners in accordance with their
Partnership Interests.
(f) Partner Nonrecourse Deductions. Any Partner Nonrecourse
Deductions for any Fiscal Year or other period shall be specifically
allocated to the Partner who bears the economic risk of loss with respect
to the Partner Nonrecourse Debt to which such Partner Nonrecourse
Deductions are attributable in accordance with Regulations Section 1.704-
2(i)(1).
(g) Section 754 Adjustments. To the extent an adjustment to the
adjusted tax basis of any Partnership asset pursuant to Code Section 734(b)
or Code Section 743(b) is required, pursuant to Regulations Sections 1.704-
1(b)(2)(iv)(m)(2) or (4), to be taken into account in determining Capital
Accounts, the amount of such adjustment to the Capital Accounts shall be
treated as an item of gain (if the adjustment increases the basis of the
asset) or loss (if the adjustment decreases such basis) and such gain or
loss shall be specially allocated to the partners in a manner consistent
with the manner in which their Capital Accounts are required to be adjusted
pursuant to such Section of the Regulations.
(h) Allocation of Self Charged Interest. If a Partner makes a loan
to the Partnership, to the extent permitted under Regulations Section
1.469-7, the Partnership shall allocate to such Partner any interest
deduction specially incurred by the Partnership as a result of such loan;
provided, however, that this Section 5.3(h) shall not affect the amount of
income or loss otherwise allocable to such Partner.
5.4 Curative Allocations. The allocations set forth in Section 5.2(b),
5.3(a), 5.3(c), 5.3(d), 5.3(e), 5.3(f) and 5.3(g) hereof (the "Regulatory
Allocations") are intended to comply with certain requirements of the
Regulations. It is the intent of the Partners that, to the extent possible, all
Regulatory Allocations shall be offset either with other Regulatory Allocations
or with special allocations of other items of Partnership income, gain, loss or
deduction pursuant to this Section 5.4. Therefore, notwithstanding any other
provision of this Article V (other than the Regulatory Allocations and the
following sentence), the General Partner shall make such offsetting special
allocations of Partnership income, gain, loss or deduction in whatever manner it
determines appropriate so that, after such offsetting allocations are made, each
Partner's Capital Account balance is, to the extent possible, equal to the
Capital Account balance such Partner would have had if the Regulatory
Allocations were not part of this Agreement and all Partnership items were
allocated pursuant to Section 5.1, 5.2(a), 5.3(h) and 5.5 hereof.
Notwithstanding the previous sentence, the General Partner shall not be required
to make special allocations to income or gain under this Section 5.4 to offset
Regulatory Allocations previously made under Sections 5.3(e) and 5.3(f) hereof.
5.5 Other Allocation Rules.
(a) For purposes of determining the Profits, Losses, or any other
items allocable to any period, Profits, Losses, and any such other items shall
be determined on a daily, monthly, or other basis, as determined by the General
Partner using any permissible method under Code Section 706 and the Regulations
thereunder.
(b) All allocations to the Limited Partners pursuant to this Article
V shall, except as otherwise expressly provided, be divided among them in
proportion to the Partnership Interests held by each. In the event there is
more than one General Partner, all such allocations to the General Partner shall
be divided among them as they may agree.
(c) Except as otherwise provided in this Agreement, all items of
Partnership income, gain, loss, deduction, and any other allocations not
otherwise provided for shall be divided among the Partners in the same
proportions as they share Profits or Losses, as the case may be. However,
notwithstanding any other provision of this Agreement other than Section 5.6
below, the General Partner shall be allocated not less than 1% of each item of
Partnership income gain, loss, deduction or credit, except to the extent such an
allocation would be contrary to the provisions of Section 704(b) or (c) of the
related income tax regulations.
(d) The Partners are aware of the income tax consequences of the
allocations made by this Article V and hereby agree to be bound by the
provisions of this Article V in reporting their shares of Partnership.
(e) Solely for purposes of determining a Partner's proportionate
share of the "excess nonrecourse liabilities" of the Partnership within the
meaning of Regulations Section 1.752-3(a), the Partners' interests in
Partnership profits shall be determined by the General Partner.
(f) To the extent permitted by Sections 1.704-2(h) and 1.704-2(i)(6)
of the Regulations, the General Partner shall endeavor to treat distributions as
having been made from the proceeds of a Nonrecourse Liability or a Partner
Nonrecourse Debt only to the extent that any such distribution would cause or
increase an Adjusted Capital Account deficit for any Limited Partner.
5.6 Tax Allocations: Code Section 704(c). In accordance with Code
Section 704(c) and the Regulations thereunder, income, gain, loss, and deduction
with respect to any property contributed to the capital of the Partnership
shall, solely for tax purposes, be allocated among the Partners so as to take
account of any variation between the adjusted basis of such property to the
Partnership for federal income tax purposes and its initial Gross Asset Value
(computed in accordance with subparagraph (i) of the definition of Gross Asset
Value). In the event the Gross Asset Value of any Partnership asset is adjusted
pursuant to subparagraph (ii) of the definition of Gross Asset Value, subsequent
allocations of income, gain, loss, and deduction with respect to such asset
shall take account of any variation between the adjusted basis of such asset for
federal income tax purposes and its Gross Asset Value in the same manner as
under Code Section 704(c) and the Regulations thereunder. Any elections or
other decisions relating to such allocations shall be made by the General
Partner in any manner that reasonably reflects the purpose and intention of this
Agreement. Allocations pursuant to this Section 5.6 are solely for purposes of
federal, state, and local taxes and shall not affect, or in any way be taken
into account in computing, any Partner's Capital Account or share of Profits,
Losses, other items, or distributions pursuant to any provision of this
Agreement.
ARTICLE VI
MANAGEMENT OF THE PARTNERSHIP; OPTIONS
6.1 Management.
(a) Except as otherwise expressly set forth herein, the management
and control of the business and affairs of the Partnership shall be exclusively
vested in the General Partner who shall have the sole and exclusive right to
manage the business of the Partnership and shall have all of the rights and
powers which may be possessed by general partners under the Act. The General
Partner agrees to carry out the purposes and business of the Partnership in
accordance with this Agreement; to devote to the Partnership's business such
time as reasonably shall be required; to perform, or cause and supervise the
performance of, all supervisory, management and operational services and
functions of the Partnership; and to conduct the affairs of the Partnership in
the best interest of the Partnership and the Partners.
(b) Except as otherwise permitted by this Agreement or applicable
law, the Limited Partners acting in their capacity as Limited Partners shall not
have any right to participate in the management or control of the Partnership or
its business and affairs, to bring an action for partition or sale in connection
with the property or assets of the Partnership, whether real or personal, or to
act for or bind the Partnership in any way.
6.2 Restrictions on Authority of General Partner. Notwithstanding Section
6.1, the General Partner shall not have the authority to do any of the following
without the prior written consent of all of the Limited Partners:
(i) do any act which would make it impossible to carry on
the ordinary business of the Partnership, except as otherwise specifically
permitted by this Agreement, including, without limitation, Section 6.1 hereof;
(ii) do any act in contravention of this Agreement;
(iii) extend the term of the Partnership; or
(iv) perform any act that would subject any Limited Partner
to liability as a general partner.
6.3 Indemnification of the General Partner.
(a) THE PARTNERSHIP, ITS RECEIVER, OR ITS TRUSTEE SHALL INDEMNIFY,
SAVE HARMLESS, AND PAY ALL JUDGMENTS AND CLAIMS AGAINST THE GENERAL PARTNER
RELATING TO ANY LIABILITY OR DAMAGE INCURRED BY REASON OF ANY ACT PERFORMED OR
OMITTED TO BE PERFORMED BY THE GENERAL PARTNER IN CONNECTION WITH THE BUSINESS
OF THE PARTNERSHIP, INCLUDING ATTORNEYS' FEES INCURRED BY THE GENERAL PARTNER IN
CONNECTION WITH THE DEFENSE OF ANY ACTION BASED ON SUCH ACT OR OMISSION,
INCLUDING ANY ACT OR OMISSION WHICH CONSTITUTES NEGLIGENCE.
(b) IN THE EVENT OF ANY ACTION BY A LIMITED PARTNER AGAINST THE
GENERAL PARTNER, INCLUDING A PARTNERSHIP DERIVATIVE SUIT, THE PARTNERSHIP SHALL
INDEMNIFY, SAVE HARMLESS, AND PAY ALL EXPENSES OF THE GENERAL PARTNER, INCLUDING
ATTORNEYS' FEES, INCURRED IN THE DEFENSE OF SUCH ACTION, BUT ONLY IF THE GENERAL
PARTNER IS SUCCESSFUL IN SUCH ACTION.
(c) NOTWITHSTANDING THE PROVISIONS OF SECTIONS 6.3(a) AND (b) ABOVE,
THE GENERAL PARTNER SHALL NOT BE INDEMNIFIED FROM ANY LIABILITY, CLAIM, COST OR
EXPENSE RESULTING FROM THE FRAUD, BAD FAITH, GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT OF THE GENERAL PARTNER OR A BREACH OF THIS AGREEMENT BY THE GENERAL
PARTNER WHICH CONSTITUTES FRAUD, BAD FAITH, GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT.
6.4 Partnership Expenses. All reasonable third party expenses incurred by
the General Partner (or any third party hired by the General Partner) for
performing the services described in Article VI hereof shall constitute
Operating Expenses. The General Partner shall not be required to use its own
funds in carrying out any of its responsibilities under this Agreement. In the
event that the General Partner uses its own funds to pay for Operating Expenses,
the Partnership shall reimburse the General Partner within ten (10) days
following receipt of evidence of such expenditure made by the General Partner
out of its own funds.
6.5 Insurance. The General Partner shall cause the Partnership to obtain
and keep in force, or cause to be obtained and kept in force, during the term
hereof, all insurance necessary or appropriate for entities operating in the
Partnership's line of business, and the cost thereof shall be considered an
Operating Expense.
6.6 Partnership Accounts. The General Partner shall establish and
maintain one or more depository accounts ("Partnership Accounts") for funds of
the Partnership at depositories selected by the General Partner. The
Partnership Accounts shall be administered in accordance with any contractual
agreements to which the Partnership is a party or by which it is bound, and
subject thereto, in accordance with the business judgment of the General
Partner. The General Partner shall notify the Limited Partners in writing of
the location and account numbers of all Partnership Accounts. All funds of the
Partnership shall be deposited in one of the Partnership Accounts and used
exclusively for Partnership purposes. No Partner shall commingle any other
funds with the funds of the Partnership in the Partnership Accounts.
6.7 Approval of Limited Partners. Unless a different percentage vote is
expressly indicated, all actions taken or approvals given by Limited Partners
shall require the approval of a Majority in Interest of the Limited Partners.
6.8 Reliance by Third Parties. Notwithstanding any other provision of
this Agreement to the contrary, no lender, purchaser or other Person, including
any purchaser of Property from the Partnership or any other Person dealing with
the Partnership, shall be required to verify any representation by the General
Partner as to its authority to encumber, sell, or otherwise use or deal with any
assets or properties of the Partnership, and any such lender, purchaser, or
other Person shall be entitled to rely exclusively on such representation and
shall be entitled to deal with the General Partner as if it were the sole party
in interest therein, both legally and beneficially.
ARTICLE VII
BOOKS AND RECORDS
7.1 Books and Records; Periodic Reporting.
(a) The Partnership shall keep accurate and complete books of account
and records on an accrual basis showing the assets and liabilities, operations,
transactions and financial condition of the Partnership in accordance with the
accounting principles used by the Partnership for federal income tax purposes.
All financial statements shall be accurate and in all material respects shall
present fairly the financial position and results of operation of the
Partnership. The books of account and records of the Partnership shall at all
times be maintained at the principal office of the Partnership.
(b) No later than one hundred twenty (120) days after the end of each
Fiscal Year, the General Partner shall furnish the Limited Partners with
financial statements of the Partnership, including balance sheets and income
statements. If the General Partner causes financial statements to be prepared
for periods other than annual periods, the General Partner shall furnish the
Limited Partners with such financial statements within a reasonable time after
such financial statements are prepared and received by the General Partner.
(c) The Partnership's federal, state and local income and other tax
returns shall be prepared, at the expense of the Partnership, by a firm of
certified public accountants selected by the General Partner (the "Partnership
Accountants"). All tax returns shall be signed on behalf of the Partnership and
filed by the General Partner.
7.2 Right to Inspection. Each Limited Partner shall have the right at all
reasonable times upon reasonable notice to examine and copy at its expense the
books and records of the Partnership, which books and records shall be
maintained in the State of Maryland.
7.3 Tax Matters Partner. The General Partner is hereby designated as the
tax matters partner of the Partnership.
7.4 Tax Elections. The Partnership shall be treated, and shall file its
tax returns, as a partnership for federal, state and local income and other tax
purposes. If any Partner receives notice of a tax examination of the
Partnership by any federal, state or local authority, it shall promptly give
notice thereof to the other Partners. All elections permitted to be made by the
Partnership under the Code shall be made by the General Partner. At the
discretion of the General Partner, the Partnership may make an election under
754 of the Code.
ARTICLE VIII
ADMISSION AND WITHDRAWAL OF PARTNERS; ASSIGNMENT
8.1 Admission of New Limited Partners.
(a) Subject to Section 8.1(b) and (c) below, with the written consent
of the General Partner, which consent may be arbitrarily withheld in the sole
discretion of the General Partner, the Partnership may admit one or more new
Limited Partners. Any Limited Partner so admitted shall (i) make a Capital
Contribution, and (ii) have a Partnership Interest, in such amounts as shall be
determined by the General Partner.
(b) No new Partner shall be admitted to the Partnership (i) if the
effect of such admission would be the termination of the Partnership pursuant to
Code Section 708(b)(1)(B); or (ii) if such admission would, with the giving of
notice, the passage of time or both, render untrue any representation or
warranty made by the Partnership in, or violate the terms of, or constitute a
breach of or a default under, this Agreement, or any other agreement, document,
contract or instrument to which the Partnership is a party or by which the
Partnership or its assets is bound.
(c) The admission of any new Partner to the Partnership (i) may be
conditioned on the receipt by the Partnership of opinions of counsel acceptable
to the General Partner with respect to compliance by the Partnership and the new
Partner with securities, tax and other laws and such other matters as the
General Partner may deem appropriate; and (ii) shall be conditioned on the
confirmation by the new Partner of the accuracy of the representations and
warranties, and the agreement of such new Partner to be bound by the covenants
contained in Article XI of this Agreement, insofar as such representations,
warranties and covenants pertain to such new Partner.
8.2 Withdrawal of a Partner.
(a) The General Partner may not withdraw from the Partnership.
(b) Except for removals contemplated in Section 8.3, no Limited
Partner may withdraw from the Partnership without the written consent of the
General Partner. In granting such consent, the General Partner shall condition
the withdrawal of the withdrawing Limited Partner on such matters as the General
Partner may deem appropriate, and, in granting such consents, shall determine
(i) the extent, if any, to which such withdrawing Partner shall retain an
interest in the Partnership; (ii) the terms and conditions on and timing of the
return of such withdrawing Partner's capital; and (iii) the extent, if any, to
which such withdrawing Partner shall remain obligated or liable for obligations
and liabilities of the Partnership and/or at risk with respect to ongoing
Partnership operations.
(c) No Limited Partner may withdraw from the Partnership if the
effect of such withdrawal would, with the giving of notice, the passage of time,
or both, render untrue any representation or warranty made by the Partnership
in, or violate the terms of or constitute a breach of or a default under this
Agreement, the Purchase Agreement, the Contribution Agreement or any other
agreement, document, contract or instrument to which the Partnership is a party
or by which the Partnership or its assets is bound.
(d) On the withdrawal of a Limited Partner from the Partnership in
accordance with this Section, such Limited Partner shall cease to be a Partner
for all purposes.
8.3 Assignment.
(a) No Partner nor any assignee or successor in interest of a Partner
may, without the prior written consent of the General Partner, assign, pledge,
hypothecate, encumber or otherwise transfer all or any portion of its
Partnership Interest or rights and/or obligations hereunder (an "Assignment").
Such consent may be arbitrarily withheld in the sole discretion of the General
Partner. Without the written consent of the other Partners, which consents may
be arbitrarily withheld in the sole discretion of such Partner, an assignee
shall not become a Partner, and, in any event, each assignee shall execute an
instrument in form and substance satisfactory to the General Partner agreeing to
be bound by this Section 8.3 and any other appropriate provisions of this
Agreement. Notwithstanding anything contained in this Agreement to the
contrary, in no event may a Partner, an assignee of a Partner or a successor in
interest of a Partner make an Assignment or otherwise transfer all or any
portion of its Partnership Interest if such action would with the giving of
notice, the passage of time or both, render untrue any representation or
warranty made by the Partnership in, or violate the terms of, or constitute a
breach of or a default under this Agreement, the Purchase Agreement, the
Contribution Agreement or any other agreement, document, contract or instrument
to which the Partnership is a party, or by which the Partnership or its assets
is bound. The Partnership may condition any such Assignment, including an
Assignment not requiring the consent of the Partners, on the receipt by the
Partnership of opinions of counsel acceptable to the Partnership with respect to
compliance by the Partnership and the assigning Partner with securities, tax and
other laws and such other matters as the General Partner may deem appropriate.
(b) Any Partner that has assigned all of its Partnership Interest
shall cease to be a Partner for purposes of this Agreement; provided, however,
that such Partner shall remain liable for its obligations under this Agreement
incurred prior to the Assignment of its Partnership Interest, and shall remain
liable to the Partnership and the other Partners for the actions and omissions
of such Partner prior to the Assignment of its Partnership Interest.
(c) Any purported Assignment other than in accordance with the
provisions of this Section shall be void ab initio.
(d) Notwithstanding the foregoing, in no event may the provisions of
this Section be initiated if the operation of this Section could, with the
giving of notice, the passage of time or both, violate the terms of, or
constitute a breach of or a default under, any agreement, document, contract or
instrument to which the Partnership is a party to or by which the Partnership or
its assets is bound.
ARTICLE IX
DISSOLUTION OF PARTNERSHIP
9.1 Dissolution Events. The Partnership shall be dissolved upon the
occurrence of any of the following events:
(a) The voluntary agreement of all Partners to dissolve the
Partnership;
(b) The expiration of the term specified in Section 2.5;
(c) The bankruptcy, retirement, resignation, expulsion or withdrawal
of the General Partner; and
(d) Any other act by or with respect to the Partnership or any
Partner constituting a dissolution under applicable law.
9.2 Notice of Dissolution. In the event of the occurrence of any of the
events described in Section 9.1(c) with respect to a Defaulting Partner, the
Non-Defaulting Partners shall have the right and option, exercisable unanimously
at any time thereafter (until all of such events have been fully cured) by
notice (the "Dissolution Notice") to the Defaulting Partner, to dissolve and
wind up the Partnership; and any such termination, dissolution and winding up
shall take effect immediately upon the giving of such Dissolution Notice and
pursuant to Article X.
9.3 Reconstitution of the Partnership. On the occurrence of an event
described in Section 9.1(a) or (b), the Partnership shall be liquidated, and the
affairs of the Partnership shall be wound up in accordance with the provisions
of Article X. On the occurrence of an event described in Section 9.1(d), upon
the unanimous consent within ninety days after such event of all of the Partners
not causing the dissolution of the Partnership, the Partnership shall continue
the business of the Partnership without interruption to the extent permitted
under applicable law.
ARTICLE X
LIQUIDATION OF THE PARTNERSHIP
10.1 Liquidation. In the event of dissolution of the Partnership where the
business of the Partnership shall not be continued, liquidation shall occur.
The General Partner shall supervise the liquidation of the Partnership unless a
wrongful act of the General Partner dissolved the Partnership or the Limited
Partners elect another Partner to do so. In the event of any liquidation of the
Partnership under this Agreement or the Act, except as otherwise provided
herein, the proceeds of liquidating the Partnership shall be applied and
distributed in the following order of priority (each time to be satisfied in
full in the order listed below before any of such proceeds are allocated to the
subsequent item):
(a) First, to creditors, including Partners who are creditors (to the
extent not otherwise prohibited by law), in satisfaction of liabilities of
the Partnership (whether by payment or the making of reasonable provision
for payment therefor), other than liabilities for which reasonable
provision for payment has been made and liabilities for interim
distributions to Partners and distributions to Partners on withdrawal; then
(b) Second, to the setting up of any reserves which the supervising
Partner (or, if applicable, the liquidating trustee) determines to be
reasonably necessary for any contingent liabilities of the Partnership or
of any Partner arising out of, or in connection with, a Partnership
liability; then
(c) Finally, the balance, if any, to the Partners in accordance with
Section 4.1.
10.2 Compliance with Timing Requirements of Regulations. In the event the
Partnership is "liquidated" within the meaning of Regulations Section 1.704-
1(b)(2)(ii)(g):
(i) distributions shall be made pursuant to this Article X to
the Partners who have positive Capital Accounts in compliance with
Regulations Section 1.704-1(b)(2)(ii)(b)(2);
(ii) if the General Partner's Capital Account has a deficit
balance (after giving effect to all contributions, distributions, and
allocations for all taxable years, including the year during which
such liquidation occurs), the General Partner shall contribute to the
capital of the Partnership the amount necessary to restore such
deficit balance to zero in compliance with Regulations Section 1.704-
1(b)(2)(ii)(b)(3);
(iii) if any Limited Partner has a deficit balance in its
Capital Account (after giving effect to all contributions,
distributions, and allocations for all taxable years, including the
year during which such liquidation occurs), such Limited Partner shall
have no obligation to make any contribution to the capital of the
Partnership with respect to such deficit, and such deficit shall not
be considered a debt owed to the Partnership or to any other person
for any purpose whatsoever.
10.3 Deemed Distribution and Reconstitution. Notwithstanding any other
provision of this Article X, in the event the Partnership is liquidated within
the meaning of Regulations Section 1.704-1(b)(2)(ii)(g) but the Partnership is
not liquidated under this Article X, the property of the Partnership shall not
be liquidated, the Partnership's liabilities shall not be paid or discharged,
and the Partnership's affairs shall not be wound up. Instead, the Partnership
shall be deemed to have distributed the assets of the Partnership in kind to the
Partners, who shall be deemed to have assumed and taken subject to all
Partnership liabilities, all in accordance with their respective Capital
Accounts. Immediately thereafter, the Partners shall be deemed to have
recontributed the Property in kind to the Partnership, which shall be deemed to
have assumed and taken subject to all such liabilities.
10.4 Rights of Limited Partners. Except as otherwise provided in this
Agreement, each Limited Partner shall look solely to the assets of the
Partnership for the return of its Capital Contribution and shall have no right
or power to demand or receive property other than cash from the Partnership. No
Limited Partner shall have priority over any other Limited Partner as to the
return of its Capital Contributions, distributions, or allocations.
ARTICLE XI
MISCELLANEOUS
11.1 Additional Documents and Acts. In connection with this Agreement, as
well as all transactions contemplated by this Agreement, each Partner agrees to
execute and deliver such reasonable additional documents and instruments, and to
perform such reasonable additional acts, as may be necessary or appropriate to
effectuate, carry out and perform all of the terms, provisions and conditions of
this Agreement, and all such transactions. All approvals of a Partner shall be
in writing.
11.2 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF MARYLAND WITHOUT REGARD TO
CONFLICTS OF LAW.
11.3 Severability. If this Agreement or any portion thereof is, or the
operations contemplated hereby are, found to be inconsistent with or contrary to
any valid applicable laws or official orders, rules and regulations, the
inconsistent or contrary provisions of this Agreement shall be null and void and
such laws, orders, rules and regulations shall control and, as so modified,
shall continue in full force and effect; provided, however, that nothing
contained herein shall be construed as a waiver of any right to question or
contest any such law, order, rule or regulation in any forum having
jurisdiction.
11.4 Binding Effect. Except as herein otherwise expressly stipulated to
the contrary, this Agreement shall be binding upon and inure to the benefit of
the parties signatory hereto, and their respective successors and assigns.
11.5 Agreement Restricted to Partners. This Agreement is solely for the
parties hereto and no covenant or other provision herein shall create any rights
in, or give rise to any obligation to or cause of action by, any Person not a
party hereto.
11.6 Counterparts. This Agreement may be executed in a number of
counterparts, each of which shall be deemed an original and all of which shall
constitute one and the same agreement.
11.7 Power of Attorney; Amendments. Each of the Limited Partners hereby
makes, constitutes and appoints the General Partner as its true and lawful
attorney, to make, sign, execute, acknowledge and file with respect to the
Partnership:
(a) such Certificates of Limited Partnership and such amended
Certificates of Limited Partnership and such assumed name certificates and
amendments thereto as may be required by law or pursuant to the provisions
of this Agreement;
(b) all documents required to qualify the Partnership to do business
in other states;
(c) documents of transfer of Partnership Interests and all other
instruments to effect such transfers in the event the provisions of this
Agreement have been complied with;
(d) all documents required to reflect the dissolution and termination
of the Partnership after it has been dissolved or terminated in accordance
herewith; and
(e) any amendment to this Agreement that the General Partner shall
determine to be desirable or appropriate; provided, that any amendment to
this Agreement that would adversely affect any right or interest of any
Limited Partner may only be made with the written consent of such Limited
Partner.
The foregoing power of attorney is hereby declared to be irrevocable and is
a power coupled with an interest, and it shall survive and not be affected by
the subsequent death, incompetency, legal disability, withdrawal, dissolution,
bankruptcy, insolvency or termination of any Partner or the transfer of all or
any portion of a Partnership Interest, and shall extend to each Partner's heirs,
legal representatives, successors and assigns.
11.8 Notices. All notices and demands provided for in this Agreement shall
be in writing and shall be given to the other Partners by hand, by telegram (or
telefax), or by United States Registered or Certified Mail, postage prepaid,
return receipt requested, to the addresses set forth below or to such other
addresses as any Partner hereto may be hereafter specify in writing:
(a) If to a Limited Partner:
To the address or fax number
set forth beneath the Limited Partner's
name on Exhibit A hereto
(b) If to the General Partner:
To the address or fax number
set beneath the General Partner's
name on Exhibit A hereto
Each notice or demand given by hand shall be effective as of its delivery
to the other Partners as so provided. Each notice given by telecopy or telefax
shall be effective as of the date on which such telegram or telefax is
transmitted and confirmation of delivery, or attempted delivery, thereof is
received. Each notice or demand given by mail shall be deemed delivered and
effective on the earlier to occur of (a) the date of delivery as shown by the
return receipt or (b) three (3) business days after the mailing thereof in
accordance with the provisions hereof. Any Partner may change its address for
purposes of receiving notices by giving notice thereof to the other Partner as
provided in this Article XI.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date and year first above written.
"GENERAL PARTNER"
CRIIMI MAE Management, Inc.
By: /s/ H. Xxxxxxx Xxxxxxxxxx
---------------------------
H. Xxxxxxx Xxxxxxxxxx
President
"LIMITED PARTNER"
CRIIMI MAE Services, Inc.
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------
Xxxxxxx X. Xxxxxxx
Chairman of the Board
EXHIBIT A
LIMITED PARTNERSHIP AGREEMENT OF CRIIMI MAE
SERVICES LIMITED PARTNERSHIP
Name and Address Initial Contribution Partnership
Interest
GENERAL PARTNER
CRIIMI MAE Management, Inc. $ 538,000.00 8%
00000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: H. Xxxxxxx Xxxxxxxxxx,
President
with a copy to:
Office of General Counsel
C.R.I., Inc.
00000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxx 00000
Facsimile Number: 301/468-3150
LIMITED PARTNER
CRIIMI MAE Services, Inc. $6,585,964.00 92%
00000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: H. Xxxxxxx Xxxxxxxxxx,
President
with a copy to:
Office of General Counsel
C.R.I., Inc.
00000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxx 00000
Facsimile Number: 301/468-3150
APPENDIX A
DEFINED TERMS
"Act" means the Maryland Revised Uniform Limited Partnership Act, as
amended from time to time (or any corresponding provisions of succeeding
law).
"Additional Capital Contribution" means any Capital Contribution by a
Partner other than its initial Capital Contributions.
"Adjusted Capital Account Deficit" means, with respect to any Limited
Partner, the deficit balance, if any, in such Limited Partner's Capital
Account as of the end of the relevant Fiscal Year, after giving effect to
the following adjustments:
(i) Credit to such Capital Account any amounts which such
Limited Partner is obligated to restore pursuant to any provision of
this Agreement or is deemed to be obligated to restore pursuant to the
penultimate sentences of Regulations Section 1.704-2(g)(1) and 1.704-
2(i)(5);
(ii) Debit to such Capital Account the items described in
Sections 1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5), and
1.704(b)(2)(ii)(d)(6) of the Regulations.
The foregoing definition of Adjusted Capital Account Deficit is intended to
comply with the provisions of Section 1.704-(b)(2)(ii)(d) of the
Regulations and shall be interpreted consistently therewith.
"Affiliate" means, with respect to any Person, any Person controlling,
controlled by or under common control with such Person, with the concept of
control in such context meaning the possession, directly or indirectly, of
the power to direct the management and policies of another, whether through
the ownership of voting securities, by contract or otherwise. "Affiliate"
shall also include direct lineal ancestors and descendants of a natural
Person and others related to such natural Person no more distantly than
first cousin.
"Capital Account" means, with respect to any Partner, the Capital
Account maintained for such Partner in accordance with the following
provisions:
(i) To each Partner's Capital Account there shall be credited
such Partner's Capital Contributions, such Partner's distributive
share of Profits and any items in the nature of income or gain which
are specially allocated pursuant to Section 5.3 or Section 5.4 hereof,
and the amount of any Partnership liabilities assumed by such Partner
or which are secured by any asset of the Partnership distributed to
such Partner;
(ii) To each Partner's Capital Account there shall be debited
the amount of cash and the Gross Asset Value of any Partnership asset
distributed to such Partner pursuant to any provision of this
Agreement, such Partner's distributive share of Losses and any items
in the nature of expenses or losses which are specially allocated
pursuant to Section 5.3 or Section 5.4, and the amount of any
liabilities of such Partner assumed by the Partnership or which are
secured by any property contributed by such Partner to the
Partnership;
(iii) In the event all or a portion of an interest in the
Partnership is transferred in accordance with the terms of this
Agreement, the transferee shall succeed to the Capital Account of the
transferor to the extent it relates to the transferred interest; and
(iv) In determining the amount of any credit or debit for
purposes of subparagraph (i) and (ii) of this definition, there shall
be taken into account Code Section 752(c) and any other applicable
provisions of the Code and Regulations.
The foregoing provisions and other provisions of this Agreement relating to
the maintenance of Capital Accounts are intended to comply with Regulations
Section 1.704-1(b) and 1.704-2 and shall be interpreted and applied in a
manner consistent with such Regulations. In the event the General Partner
shall determine that it is prudent to modify the manner in which the
Capital Accounts, or any debits or credits thereto (including, without
limitation, debits or credits relating to liabilities which are secured by
contributed or distributed property or which are assumed by the Partnership
or a Partner), are computed in order to comply with such Regulations, the
General Partner may make such modification, provided that it is not likely
to have a material effect on the amounts distributable to any Partner
pursuant to Section 10.1 hereof upon the dissolution and liquidation of the
Partnership. The General Partner may also (a) make any adjustments that
are necessary or appropriate to maintain equality between the Capital
Accounts of the Partners and the amount of Partnership capital reflected on
the Partnership's balance sheet, as computed for book purposes, in
accordance with Regulations Section 1.704-1(b)(2)(iv)(q), and (b) make any
appropriate modifications in the event unanticipated events might otherwise
cause this Agreement not to comply with Regulations Sections 1.704-1 and
1.704-2.
"Capital Contributions" means, with respect to any Partner, the amount
of money, in cash or from the proceeds of a draw on a letter of credit, and
the initial Gross Asset Value of any property (other than money)
contributed to the Partnership with respect to the interest in the
Partnership held by such Partner. Loans to the Partnership shall not be
considered Capital Contributions or included in the Capital Account of any
Partner. The principal amount of a promissory note which is not readily
traded on an established securities market and which is contributed to the
Partnership by the maker of the note (or a Partner related to the maker of
the note within the meaning of Regulations Section 1.704-1(b)(2)(ii)(c))
shall not be included in the Capital Account of any Partner until the
Partnership makes a taxable disposition of the note or until (and to the
extent) principal payments are made on the note, all in accordance with
Regulations Section 1.704-1(b)(2)(iv)(d)(2). Except as provided herein,
without the consent of the General Partner, no Capital Contributions will
be made by any Partner other than in cash.
"Certificate" means the Certificate of Limited Partnership of the
Partnership filed in the State Department of Assessments and Taxation of
the State of Maryland.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time (or any corresponding provisions of succeeding law).
"Depreciation" means, for each Fiscal Year or other period, an amount
equal to the depreciation, amortization, or other cost recovery deduction
allowable for U.S. federal income tax purposes with respect to an asset for
such year or other period, except that if the Gross Asset Value of an asset
differs from its adjusted basis for U.S. federal income tax purposes at the
beginning of such year or other period, Depreciation shall be an amount
which bears the same ratio to such beginning Gross Asset Value as the
federal income tax depreciation, amortization, or other cost recovery
deduction for such year or other period bears to such beginning adjusted
tax basis, provided, however, that if the federal income tax depreciation,
amortization, or other cost recovery deduction for such year is zero,
Depreciation shall be determined with reference to such beginning Gross
Asset Value using any reasonable method selected by the General Partner.
"Distribution" means any distribution of Net Cash Flow pursuant to
Section 4.1. "Fiscal Year" means (i) the period commencing on the date
hereof and ending December 31, 1995, and (ii) any subsequent twelve (12)
month period commencing on January 1 and ending on the earlier to occur of
(A) the next December 31 or (B) the date on which all assets of the
Partnership are distributed pursuant to Section 10.1 hereof and the
Certificate has been cancelled pursuant to the Act.
"Gross Asset Value" means, with respect to any asset, the asset's
adjusted basis for federal income tax purposes, except as follows:
(i) The initial Gross Asset Value of any asset contributed by
a Partner to the Partnership shall be the gross fair market value of
such asset, as agreed by the contributing Partner and the Partnership;
(ii) The Gross Asset Value of each Partnership asset shall be
adjusted to equal its respective gross fair market value, as
determined by the General Partner, as of the following times: (a) the
acquisition of an additional interest in the Partnership by any new or
existing Partner in exchange for more than a de minimis Capital
Contribution; (b) the distribution by the Partnership to a Partner of
more than a de minimis amount of Partnership assets in liquidation of
this interest in the Partnership within the meaning of Regulations
Section 1.704-(b)(2)(ii)(g); and (c) the liquidation of the
Partnership within the meaning of Regulations Section 1.704-
1(b)(2)(ii)(g); provided, however, that adjustments pursuant to
clauses (a) and (b) above shall be made only if the General Partner
determines that such adjustments are necessary or appropriate to
reflect the relative economic interests of the Partners in the
Partnership;
(iii) The Gross Asset Value of any Partnership asset distributed
to any Partner shall be adjusted to equal the gross fair market value
of such asset on the date of distribution; and
(iv) The Gross Asset Value of Partnership assets shall be
increased (or decreased) to reflect any adjustments to the adjusted
basis of such assets pursuant to Code Section 734(b) or Code Section
743(b), but only to the extent that such adjustments are taken into
account in determining Capital Accounts pursuant to Regulations
Section 1.704-1(b)(2)(iv)(m) and Section 5.3(g) hereof; provided,
however, that Gross Asset Values shall not be adjusted pursuant to
this subparagraph (iv) to the extent that General Partner determines
that an adjustment pursuant to subparagraph (ii) above is necessary or
appropriate in connection with a transaction that would otherwise
result in an adjustment pursuant to this subparagraph (iv).
If the Gross Asset Value of an asset has been determined or adjusted pursuant to
subparagraph (i), subparagraph (ii), or subparagraph (iv) above, such Gross
Asset Value shall thereafter be adjusted by the Depreciation taken into account
with respect to such asset for purposes of computing Profits and Losses.
"Gross Receipts" means all cash receipts of any kind received by the
Partnership.
"Interest" means the ownership interest of a Partner in the
Partnership and the obligations attendant thereto, all as governed by this
Agreement.
"Limited Partner" means CRIIMI MAE Services, Inc. and each Person who
becomes a limited partner pursuant to the terms of this Agreement.
"Liquidating Capital Transaction Proceeds" shall mean all cash and
other assets of the Partnership following a Liquidating Capital Transaction
and after satisfaction or creditors and creation of reserves pursuant to
Sections 10.1(a) and (b). "Majority in Interest of the Limited Partners"
means those Limited Partners holding an aggregate of 51% or more of all of
the Partnership Interests eligible to vote on a matter owned by the Limited
Partners as a group.
"Management Business" shall have the meaning specified in the
Contribution Agreement.
"Net Cash Flow" means the excess of Gross Receipts over the sum of the
amounts of (i) expenditures by the Partnership, (ii) Distributions, an
(iii) the amount of any reasonable reserves then maintained by the General
Partner, all such amounts to be determined for the period beginning on the
date hereof and ending on the last day of the quarter immediately prior to,
or which ends on, the date of a distribution of Net Cash Flow pursuant to
Section 4.1 hereof.
"Nonrecourse Deductions" has the meaning set forth in Section 1.704-
2(b)(1) of the Regulations.
"Nonrecourse Liability" has the meaning set forth in Section 1.704-
2(b)(3) of the Regulations.
"Partner Nonrecourse Debt" has the meaning set forth in Section 1.704-
2(b)(4) of the Regulations.
"Partner Nonrecourse Debt Minimum Gain" means that amount, with
respect to each Partner Nonrecourse Debt, equal to the Partnership Minimum
Gain that would result if such Partner Nonrecourse Debt were treated as a
Nonrecourse Liability, determined in accordance with the principles of
Regulations Section 1.704-2(i)(3).
"Partner Nonrecourse Deductions" means any and all items of loss,
deduction or expenditure (including any expenditure described in Section
705(g)(2)(B) of the Code) that, in accordance with the principles of
Regulations Sections 1.704-2(i)(1) and (2), are attributable to a Partner
Nonrecourse Debt.
"Partners" means the General Partner and the Limited Partners, where
no distinction is required by the context in which the term is used herein.
"Partner" means any of the Partners.
"Partnership" means CRIIMI MAE Services Limited Partnership.
"Partnership Account(s)" has the meaning assigned to such term in
Section 6.6.
"Partnership Interest" means the respective percentage interest of a
Partner in the Partnership, provided, however, that at all times the
General Partner shall have a Partnership Interest of not less than 1%. The
initial Partnership Interests of the Partners are set forth on Exhibit A.
"Partnership Minimum Gain" has the meaning set forth in Sections
1.704-2(b)(2) and (d) of the Regulations.
"Person" means any individual, partnership, corporation, trust, or
other entity.
"Prime Rate" means the prime or base rate of interest listed in the
Wall Street Journal as such rate may change from time to time. If a range
of rates is quoted, it shall be the lowest rate so quoted.
"Profits" and "Losses" mean, for each Fiscal Year or other period, an
amount equal to the Partnership's taxable income or loss or such year or
period, determined in accordance with Code Section 703(a) (for this
purpose, all items of income, gain, loss or deduction required to be stated
separately pursuant to Code Section 703(a)(1) shall be included in taxable
income or loss), with the following adjustments:
(i) Any income of the Partnership that is exempt from federal
income tax and not otherwise taken into account in computing Profits
or Losses pursuant to this definition shall be added to such taxable
income or loss;
(ii) Any expenditures of the Partnership described in Code
Section 705(a)(2)(B) or treated as Code Section 705(a)(2)(B)
expenditures pursuant to Regulations Section 1.704-1(b)(2)(iv)(i), and
not otherwise taken into account in computing Profits or Losses
pursuant to this definition shall be subtracted from such taxable
income or loss;
(iii) In the event the Gross Asset Value of any Partnership
asset is adjusted pursuant to subparagraphs (ii) or (iii) of the
definition of Gross Asset Value, the amount of such adjustment shall
be taken into account as gain or loss from the disposition of such
asset for purposes of computing Profits or Losses;
(iv) Gain or loss resulting from any disposition of Partnership
assets with respect to which gain or loss is recognized for federal
income tax purposes shall be computed by reference to the Gross Asset
Value of the property disposed of, notwithstanding that the adjusted
tax basis of such property differs from its Gross Asset Value;
(v) In lieu of the depreciation, amortization, and other cost
recovery deductions taken into account in computing such taxable
income or loss, there shall be taken into account Depreciation for
such Fiscal Year or other period, computed in accordance with the
definition of Depreciation;
(vi) To the extent an adjustment to the adjusted tax basis of
any Partnership asset pursuant to Code Section 734(b) or Code Section
743(b) is required pursuant to Regulations Section 1.704-
(b)(2)(iv)(m)(4) to be taken into account in determining Capital
Accounts as a result of a distribution other than in liquidation of a
Partner's interest in the Partnership, the amount of such adjustment
shall be treated as an item of gain (if the adjustment increases the
basis of the asset) or loss (if the adjustment decreases the basis of
the asset) from the disposition of the asset and shall be taken into
account for purposes of computing Profits or Losses; and
(vii) Notwithstanding any other provision of this definition,
any items which are specially allocated pursuant to Section 5.3 or
Section 5.4 hereof shall not be taken into account in computing
Profits or Losses.
"Property" means all real and personal property (including tangible
and intangible property) or interests therein acquired by the Partnership
pursuant to or on account of the Contribution Agreement and any other real
or personal property or interests therein appropriate in the judgment of
the General Partner.
"Regulations" means the Income Tax Regulations promulgated under the
Code, as such regulations may be amended from time to time (including
corresponding provisions of succeeding regulations).
APPENDIX B
LIST OF CRICO MORTGAGE COMPANY, INC. SERVICING AGREEMENTS
1. Sub-Servicing Agreement dated as of September 1, 1993 between
Citibank, N.A. as master servicer and CRICO Mortgage Company, Inc. as
sub-servicer, together with First Amendment to Subservicing Agreement
dated as of October 15, 1993.
2. Pooling and Servicing Agreement dated as of September 1, 1993 among
Mortgage Capital Funding, Inc. as sponsor, Citibank, N.A. as mortgage
asset seller, master servicer and REMIC administrator, CRICO Mortgage
Company, Inc. as special servicer, and The Bank of New York, as
Trustee.
3. Servicing Agreement dated as of February 10, 1994 between Citibank,
N.A. and CRICO Mortgage Company, Inc.
4. Servicing Agreement made as of April 15, 1994 among The Bank of New
York, Aurora Capital, Inc. and CRICO Mortgage Company, Inc.
5. Delegation Agreement (Coinsurance), dated as of January 11,
1993, by and between Integrated Funding, Inc. and CRICO
Mortgage Company, Inc. as amended by First Amendment to
Delegation Agreement dated April 1, 1995.
6. Loan Agreement dated as of December 1, 1986 among the City
of Burnsville, Minnesota, Greenhaven Village Apartments of
Burnsville Phase II Limited Partnership and Capitol Realty
Investors Tax Exempt Fund Limited Partnership executed by
CRICO Mortgage Company, Inc. as Servicer.
7. Escrow Agreement dated as of December 1, 1986 between the
City of Burnsville, as Issuer, Greenhaven Village Apartments
of Burnsville Phase II Limited Partnership, as Developer,
Capital Realty Investors Tax Exempt Fund Limited
Partnership, as Bondowner and CRICO Mortgage Company, Inc.
as Escrow Agent.
8. Loan Agreement dated as of December 1, 1986 among The City
of Xxxxx, Minnesota, Royal Oak Circle, a Limited Partnership
and Capital Realty Investors Tax Exempt Fund Limited
Partnership executed by CRICO Mortgage Company, Inc. as
Servicer.
9. Escrow Agreement dated as of December 1, 1986 between City
of Xxxxx, as Issuer, Royal Oak Circle, a Limited
Partnership, as Developer, Capital Realty Investors Tax
Exempt Fund Limited Partnership, as Bondowner and CRICO
Mortgage Company, Inc. as Escrow Agent.
10. Loan Agreement dated as of August 1, 1987 among The City of
Burnsville, Minnesota, Trailway Pond Apartments Limited
Partnership and Capital Realty Investors Tax Exempt Fund
Limited Partnership executed by CRICO Mortgage Company, Inc.
as Servicer.
11. Escrow Agreement dated as of August 1, 0000 xxxxxxx Xxx Xxxx
xx Xxxxxxxxxx, Xxxxxxxxx, as Issuer, Trailway Pond
Apartments Limited Partnership, as Developer, Capital Realty
Investors Tax Exempt Fund Limited Partnership, as Bondowner,
and CRICO Mortgage Company, Inc. as Escrow Agent.
12. Loan Agreement dated as of March 1, 1987 among The
Washington County Housing and Redevelopment Authority,
Valley Creek Apartments Limited Partnership and Capital
Realty Investors Tax Exempt Fund Limited Partnership
executed by CRICO Mortgage Company, Inc. as Servicer.
13. Loan Agreement dated as of March 1, 1987 between The
Washington County Housing and Redevelopment Authority, as
Issuer, Valley Creek Apartments Limited Partnership, as
Developer, Capital Realty Investors Tax Exempt Fund Limited
Partnership, as Bondowner and CRICO Mortgage Company, Inc.
as Escrow Agent.
14. Loan Agreement dated as of March 1, 1987 among The City of
White Bear Lake, Minnesota, White Xxxx Xxxxx Limited
Partnership and Capital Realty Investors Tax Exempt Fund
Limited Partnership executed by CRICO Mortgage Company, Inc.
as Servicer.
15. Loan Agreement dated as of May 1, 1987 among The Industrial
Development Authority of the City of Kansas City, Missouri,
Ethan's Xxxx Venture and Capital Realty Investors Tax Exempt
Fund Limited Partnership executed by CRICO Mortgage Company,
Inc. as Servicer.
16. Escrow Agreement dated as of May 1, 1987 among The
Industrial Development Authority of the City of Kansas City,
Missouri, the Issuer, Ethan's Xxxx Venture, the Developer,
Capital Realty Investors Tax Exempt Fund Limited
Partnership, the Bondowner, CRICO Mortgage Company, Inc.,
the Servicer, and The Merchants Bank, the Escrow Agent.
17. Loan Agreement dated as of December 1, 1987 among The City
of Eden Prairie, Minnesota, Fountain Place Apartments
Limited Partnership and Capital Realty Investors Tax Exempt
Fund Limited Partnership executed by CRICO Mortgage Company,
Inc. as Servicer.
18. Escrow Agreement dated as of December 1, 1987 between
Fountain Place Apartments Limited Partnership, as Developer,
Capital Realty Investors Tax Exempt Fund Limited
Partnership, as Bondowner executed by CRICO Mortgage
Company, Inc. as Escrow Agent.
19. Loan Agreement dated as of March 1, 1988 among Washington State
Housing Finance Commission, Xxxxx Street Crossing Limited Partnership,
Seattle-First National Bank and Capital Realty Investors Tax Exempt
Fund Limited Partnership executed by CRICO Mortgage Company, Inc. as
Servicer, as amended by Amendment to Loan Agreement dated as of
September 1, 1988 among Xxxxx Street Crossing Limited Partnership, the
Developer, Key Bank of Puget Sound, as Trustee and Capital Realty
Investors Tax Exempt Fund Limited Partnership, the Bondowner.
20. Loan Agreement dated as of August 1, 1987 among The City of
Burnsville, Minnesota, Trailway Pond Apartments Limited
Partnership and Capital Realty Investors Tax Exempt Fund
Limited Partnership executed by CRICO Mortgage Company, Inc.
as Servicer.
21. Escrow Agreement dated as of August 1, 1987 among The City
of Burnsville, Minnesota, as Issuer, Trailway Pond
Apartments Limited Partnership, as Developer, Capital Realty
Investors Tax Exempt Fund Limited Partnership, as Bondowner
and CRICO Mortgage Company, Inc. as Escrow Agent
22. Loan Agreement dated as of October 1, 1988 among The
Industrial Development Authority of the City of Kansas City,
Missouri, TCR-Ethan's Xxxx Limited Partnership and Capital
Realty Investors Tax Exempt Fund Limited Partnership
executed by CRICO Mortgage Company, Inc. as Servicer.
23. Escrow Agreement dated as of October 1, 1988 between The
Industrial Development Authority of the City of Kansas City,
Missouri, as Issuer, TCR-Ethan's Xxxx Limited Partnership,
as Developer, Capital Realty Investors Tax Exempt Fund
Limited Partnership, as Bondowner, The Merchants Bank, as
Trustee, as Escrow Agent and CRICO Mortgage Company, Inc.,
as Servicer
24. Loan Agreement dated as of August 1, 1988 among The City and
County of San Francisco, Xxxxx Courtyard Associates, and
Capital Realty Investors Tax Exempt Fund III Limited
Partnership executed by CRICO Mortgage Company, Inc. as
Servicer.
25. The Agency Servicing Agreement dated as of January 1, 1989,
among First Housing Development Corporation of Florida, as
Agency Servicer, Citizens and Southern Trust Company
(Florida), National Association, as Trustee, and the Florida
Housing Finance Agency, as the Agency, Ocean Walk Phase I
Limited Partnership, as Developer, Capital Realty Investors
Tax Exempt Fund III Limited Partnership, as Bondholder and
CRICO Mortgage Company, Inc., as Servicer.
26. Loan Agreement dated as of January 1, 1989 between Ocean
Walk Phase I Limited Partnership and Capital Realty
Investors Tax Exempt Fund III Limited Partnership executed
by CRICO Mortgage Company, Inc. as Servicer.
27. Loan Agreement dated as of January 1, 1990 among Iowa
Finance Authority, Regency Xxxxx Limited Partnership and
Capital Realty Investors Tax Exempt Fund III Limited
Partnership executed by CRICO Mortgage Company, Inc. as
Servicer.
28. Loan Agreement dated as of February 1, 1989 among Washington
County Housing and Redevelopment Authority Valley Creek
Apartments II Limited Partnership and Capital Realty
Investors Tax Exempt Fund III Limited Partnership executed
by CRICO Mortgage Company, Inc. as Servicer.
29. Loan Agreement dated as of September 1, 1988 among The
Washington County Housing and Redevelopment Authority,
Woodlane Place Apartments Limited Partnership and Capital
Realty Investors Tax Exempt Fund III Limited Partnership
executed by CRICO Mortgage Company, Inc. as Servicer.
30. Escrow Agreement dated as of September 1, 1988 between The
Washington County Housing and Redevelopment Authority, as
Issuer, Woodlane Place Apartments Limited Partnership, as
Developer, Capital Realty Investors Tax Exempt Fund III
Limited Partnership, as Bondowner and CRICO Mortgage
Company, Inc., as Escrow Agent
31. Letter Agreement dated February 21, 1995 between Greystone
and CRICO Mortgage Company concerning GNMA Pool #155615,
Silver Hill Apartments.
32. Letter Agreement dated June 22, 1995 by and between CRICO
Mortgage Company, Inc. and Advantage Properties, Inc.
regarding GNMA Pool #155615, Silver Hill Apartments.
33. Letter Agreement dated June 19, 1992 between Xxxxxx Mortgage
Group, Inc. and Daiwa Finance Corp. regarding Evergreen
Retirement Center, Cincinnati, Ohio, FHA Project No. 046-
35589, assigning interest to CRICO Mortgage Company, Inc.
34. Letter Agreement dated June 24, 1992 between CRICO Mortgage
Company, Inc. and PFC Corporation regarding Evergreen
Retirement Community, FHA Project #046-35589.
35. Letter Agreement dated October 6, 1992 between X.X. Xxxx
Company, Inc. and CRICO Mortgage Company (erroneously
addressed to CRI, Inc.) regarding Hideaway Townhouse
Company, Dublin, Ohio and Hideaway Company, Dublin, Ohio.
36. Letter Agreement dated October 2, 1992 between PFC Corporation and
CRICO Mortgage Company, Inc. regarding Xxxxxxxx Apartments, FHA
Project No. 092-11039.
37. Sub-Servicing Agreement dated as of May 24, 1995, by and
between CRICO Mortgage Company, Inc. and Bankers Trust
Company.
