AGREEMENT OF LIMITED PARTNERSHIP OF
BEHRINGER HARVARD 1221 XXXX XX
THIS AGREEMENT OF LIMITED PARTNERSHIP (this "AGREEMENT") is made and
entered into effective as of the 24th day of July, 2004, by and among BEHRINGER
HARVARD 1221 XXXX XX, LLC, a Texas limited liability company (the "GENERAL
PARTNER"), BEHRINGER HARVARD SHORT-TERM OPPORTUNITY FUND I LP, a Texas limited
partnership ("BH FUND"), and REALTY AMERICA GROUP (1221 XXXX ROAD), LP, a Texas
limited partnership ("REALTY AMERICA").
ARTICLE I.
FORMATION, NAME, PRINCIPAL PLACE OF BUSINESS - AGENT
PURPOSES, TERM AND DEFINITIONS
1.1 FORMATION. For and in consideration of the mutual covenants
herein contained, the Partners hereby form a limited partnership (hereinafter
the "PARTNERSHIP") under and pursuant to the Texas Revised Limited Partnership
Act, Tex. Rev. Civ. Stat. Xxx., art 6132a-1 (such Act hereinafter referred to as
"TRLPA"). The Partnership shall be governed by TRLPA. The Certificate (as
hereinafter defined) has been or shall promptly be filed and recorded in such
office and places as is required by TRLPA.
1.2 NAME. The business of the Partnership shall be conducted under
the name of "Behringer Harvard 1221 Xxxx XX."
1.3 PARTNERSHIP OFFICE, REGISTERED OFFICE AND REGISTERED AGENT. The
Partnership shall maintain its principal office in the State of Texas at 00000
Xxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000, or at such other place as the
General Partner, subject to Approval by Partnership Vote, may from time to time
designate. The Registered Office in the State of Texas is 00000 Xxxxxx Xxxxxxx,
Xxxxx 000, Xxxxxxx, Xxxxx 00000, and the agent for service of process at such
address shall be Xxxxxx X. Xxxxxxx, III. The Partnership may maintain such
different or additional offices as the General Partner may determine.
1.4 PURPOSES. The nature and business of the Partnership and the
purposes to be conducted and promoted by the Partnership are to engage solely in
the following activities:
(a) To acquire, own, maintain, operate, manage, finance
(including pursuant to the Mortgage Loan, as hereinafter defined), lease,
refinance, and sell or exchange the Property (as hereinafter defined); and
(b) To exercise all powers enumerated in TRLPA or this
Agreement necessary or convenient to the conduct, promotion or attainment of the
business or purposes set forth in Section 1.4(a).
1.5 TERM. The Partnership shall continue until December 31, 2054,
unless the Partnership is terminated sooner pursuant to Article XII.
1.6 DEFINITIONS. As used in this Agreement, unless the context
clearly requires otherwise, the following words and phrases shall have the
following meanings:
"ADDITIONAL CAPITAL CONTRIBUTIONS" means all amounts contributed (or
deemed to be contributed) to the Partnership as additional Capital Contributions
by the Partners under Section 3.2.
"ADDITIONAL CAPITAL CONTRIBUTIONS ACCOUNT" means an account maintained
for the Partners equal to (a) all Additional Capital Contributions to the
Partnership made (or deemed made) by such Partner pursuant to Section 3.2, less
(b) the aggregate distributions made to such Partner pursuant to Section 6.1(a)
of this Agreement.
"ADJUSTMENT DATE" means the close of business on the last day of any
fiscal year of the Partnership.
"AFFILIATE" means, with respect to any Person (a) any other Person,
directly or indirectly controlling, controlled by or under common control with
such Person; (b) any Person owning or controlling ten percent (10%) or more of
the outstanding voting securities of such specified Person; (c) any officer,
director, partner, member or trustee of such specified Person; and (d) if any
Person who is an Affiliate is an officer, director, partner, member or trustee
of another Person, such other Person. The term "control" shall mean the ability,
directly or indirectly, to control the management of an entity.
"AGREEMENT" means this Agreement of Limited Partnership.
"APPROVAL BY PARTNERSHIP VOTE" means approval by the General Partner and
a Majority in Interest of the Limited Partners pursuant to a Partnership Vote.
"ASSET MANAGEMENT FEE" has the meaning set forth in Section 4.8(d).
"ASSETS" means all of the assets of the Partnership (including, without
limitation, the Property).
"CAPITAL ACCOUNT" means, with respect to each Partner, the account
established and maintained on the books and records of the Partnership for each
Partner pursuant to Section 3.3 below, adjusted as provided for therein.
"CAPITAL CONTRIBUTION" means the amount of money and the Gross Asset
Value of other property or consideration contributed to the capital of the
Partnership by a Partner.
"CAPITAL CONTRIBUTION BALANCE" means, for each Partner, the cumulative
Capital Contributions of that Partner less the cumulative distributions to that
Partner in return thereof pursuant to Sections 6.1(a) and (b).
"CASH NEEDS" has the meaning set forth in Section 3.2.
"CERTIFICATE" means the Certificate of Limited Partnership of the
Partnership.
"CODE" means the Internal Revenue Code of 1986 as it may be amended or
revised from time to time, or any provision of succeeding law.
"DEPRECIATION" means, with regard to any Partnership asset for any
fiscal year or other period, the depreciation, depletion or amortization, as the
case may be, allowed or allowable for federal income tax purposes; provided,
however, that if there is a difference between the Gross Asset Value and the
adjusted tax basis of such asset, Depreciation shall mean "book depreciation,
depletion or amortization" as determined under Section 1.704-1(b)(2)(iv)(g)(3)
of the Regulations.
"DISTRIBUTABLE CASH" means all cash, revenues, and funds received by the
Partnership, and any amounts released from Reserves to the extent the General
Partner, subject to Approval by
2
Partnership Vote, deems that the amount released is no longer required to be
retained in Reserves, less the sum of the following to the extent paid or set
aside by the Partnership: (a) all principal and interest payments on
indebtedness of the Partnership (including the Mortgage Loan) and all other sums
paid to lenders; (b) all cash expenditures incurred incident to the normal
operation of the Partnership business; (c) such amounts as may be added to
Reserves as the General Partner, subject to Approval by Partnership Vote, deems
reasonably necessary to the proper operation of the Partnership's business.
"GENERAL PARTNER" means Behringer Harvard 1221 Xxxx XX, LLC, a Texas
limited liability company, and any other Person who has been admitted as a
General Partner in the Partnership pursuant to the provisions of this Agreement.
"GROSS ASSET VALUE" means, except as set forth below, the adjusted basis
of an asset for federal income tax purposes:
(a) 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 at the
time of contribution, as determined by Approval by Partnership Vote;
(b) The Gross Asset Value of all Partnership assets shall be adjusted to
equal their respective gross fair market values, as determined by Approval by
Partnership Vote, as of the following times: (i) the acquisition of an
additional interest in the Partnership by any new or existing Partners in
exchange for more than a DE MINIMIS Capital Contribution and any such other time
as the General Partner, subject to Approval by Partnership Vote, reasonably
determines that such adjustment is necessary or appropriate to reflect the
relative economic interest of the Partners in the Partnership; (ii) the
distribution by the Partnership to a Partner of more than a DE MINIMIS amount of
Partnership property as consideration for an interest in the Partnership and any
such other time as the General Partner, subject to Approval by Partnership Vote,
reasonably determines that such adjustment is necessary or appropriate to
reflect the relative economic interests of the Partners in the Partnership; and
(iii) the liquidation of the Partnership within the meaning of Regulations
Section 1.704-1(b)(2)(ii)(g);
(c) The Gross Asset Value of any Partnership asset distributed to any
Partner shall be the gross fair market value of such asset on the date of
distribution, as determined by the General Partner subject to Approval by
Partnership Vote; and
(d) The Gross Asset Values 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) as determined by the
General Partner subject to Approval by Partnership Vote, but only to the extent
that such adjustments are taken into account in determining Capital Accounts
pursuant to Section 1.704-1(b)(2)(iv)(m) of the Regulations; provided, however,
that Gross Asset Values shall not be adjusted pursuant to this subsection (d) to
the extent the General Partner, subject to Approval by Partnership Vote,
determines that an adjustment pursuant to subsection (b) hereof is necessary or
appropriate in connection with a transaction that would otherwise result in an
adjustment pursuant this subsection (d).
(e) After the Gross Asset Value of an asset has been determined or
adjusted pursuant to subsections (a), (b), or (d) hereof, Gross Asset Value will
be adjusted by the Depreciation taken into account with respect to the asset for
purposes of computing Profits or Losses. If the Gross Asset Value of an asset
has been determined or adjusted pursuant to subsections (a), (b), (c) or (d) of
this provision, such Gross Asset Value shall thereafter be computed in
accordance with Section 1.704-1(b)(2)(iv) of the Regulations.
3
"HPT" means HPT Management Services LP, a Texas limited partnership.
"IMPROVEMENTS" means any improvements and related amenities now located
or to be constructed on the Property.
"INITIAL CAPITAL CONTRIBUTIONS" means all amounts contributed (or deemed
to be contributed) to the Partnership as a Capital Contribution by the Partners
under Section 3.1.
"INITIAL CAPITAL CONTRIBUTION ACCOUNT" means, for each Partner (a) the
Initial Capital Contribution made by such Partner pursuant to Section 3.1 of
this Agreement, less (b) the aggregate distributions made to such Partner
pursuant to Section 6.1(b) of this Agreement.
"IRR" means an internal rate of return of the specified percentage per
annum on Capital Contributions as calculated using Microsoft Excel, IRR
Function, or, if the General Partner believes such method of calculation is not
appropriate, then any other method of calculation selected by the General
Partner, subject to Approval by Partnership Vote. For purposes of computing IRR,
the General Partner shall take into account all Capital Contributions made by a
Partner to the Partnership pursuant to Sections 3.1 and 3.2 and all
distributions received by a Partner pursuant to Sections 6.1 and 12.2. A
Partner's Initial Capital Contributions shall be deemed invested on the closing
date of the acquisition of the Property by the Partnership, and all Additional
Capital Contributions and all distributions shall be deemed to have been made of
the last day of the month in which the same are made or received.
"LEASING AGREEMENT" means a leasing agreement by and between the
Partnership and Peloton providing for the performance by Peloton of leasing
services with respect to the Property and payment by the Partnership to Peloton
of leasing commissions (not to exceed market rate commissions) with respect to
executed leases of the Property.
"LIMITED PARTNERS" means BH Fund and Realty America, and any other
Person who is admitted as a limited partner in the Partnership pursuant to the
provisions of Article VIII.
"MAJOR DECISION" has the meaning set forth in Section 4.3 of this
Agreement.
"MAJORITY IN INTEREST" shall mean Limited Partners owning more than
sixty percent (60%) of the initial Residual Percentages (as set forth in clause
(a) of the definition of Residual Percentages).
"MANAGEMENT AGREEMENT" means that certain Amended and Restated Property
Management and Leasing Agreement, by and between the Partnership and HPT, in the
form attached hereto as EXHIBIT B.
"MORTGAGE LOAN" shall mean that certain mortgage in the approximate
amount of Six Million Dollars ($6,000,000) encumbering the Property to be
borrowed by the Partnership in connection with the acquisition of the Property
by the Partnership.
"NONRECOURSE DEDUCTIONS" has the meaning set forth in Sections
1.704-2(b)(1) and 1.704-2(c) of the Regulations. Subject to the preceding
sentence, the amount of Nonrecourse Deductions for a Partnership fiscal year
equals the excess, if any, of the net increase, if any, in the amount of
Partnership Minimum Gain during the fiscal year (determined under Section
1.704-2(d) of the Regulations) over the aggregate amount of any distributions
during the fiscal year of proceeds of a Nonrecourse Liability that are allocable
to an increase in Partnership Minimum Gain (determined under Section 1.704-2(h)
of the Regulations).
4
"NONRECOURSE LIABILITY" has the meaning set forth in Section
1.704-2(b)(3) of the Regulations.
"OPERATING BUDGET" means the annual budget, prepared by the General
Partner and with respect to which Approval by Partnership Vote has been
obtained, and setting forth the estimated capital and operating expenses of the
Partnership for the then current or immediately succeeding calendar year and for
each month and each calendar quarter of such calendar year, in such detail as
determined by Approval by Partnership Vote.
"OPERATING EXPENSES" means all the cash expenditures made or required to
be made by the Partnership in connection with the operation of the Partnership
in the ordinary course of business, including without limitation, cash
expenditures made or required to be made by the Partnership in connection with
the ownership, management, improvement, operation, maintenance, financing and
upkeep of the Property, as well as debt service (principal and interest) and
capital expenditures of the Partnership; provided, however, Operating Expenses
shall not include (a) any overhead or general administrative costs or expenses
of the General Partner or salaries or other compensation paid to its employees,
officers, directors or shareholders (unless specifically provided for in this
Agreement); (b) any expenditures paid or payable from cash Reserves of the
Partnership (provided that to the extent any capital expenditures are made in
excess of any such Reserves established for such capital expenditures, such
excess amounts shall be included as an Operating Expense); and (c) non-cash
items such as depreciation and amortization.
"PARTIALLY ADJUSTED CAPITAL ACCOUNTS" means, with respect to any Partner
as of an Adjustment Date, the Capital Account of such Partner as of the
beginning of the fiscal year ending on such Adjustment Date (where such Capital
Account does not reflect such Partner's share of either cumulative Partner
Minimum Gain or cumulative Partnership Minimum Gain), after giving effect to all
allocations of items of income, gain, loss or deduction not included in Profits
and Losses and all Capital Contributions and distributions during such period,
but before giving effect to any allocations of Profits or Losses for such period
pursuant to Section 7.1 hereof, increased by (a) such Partner's share of
Partnership Minimum Gain as of the end of such fiscal year, and (b) such
Partner's share of Partner Minimum Gain as of the end of such fiscal year.
"PARTNER" means each of the General Partner and the Limited Partners,
and "PARTNERS" means collectively all of such Partners.
"PARTNER MINIMUM GAIN" means an 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.
"PARTNER NONRECOURSE DEBT" has the meaning set forth in Section
1.704-2(b)(4) of the Regulations.
"PARTNER NONRECOURSE DEDUCTIONS" has the meaning set forth in Section
1.704-2(i) of the Regulations. Subject to the foregoing, the amount of Partner
Nonrecourse Deductions with respect to a Partner Nonrecourse Debt for a
Partnership fiscal year equals the excess, if any, of the net increase, if any,
in the amount of Partner Minimum Gain attributable to such Partner Nonrecourse
Debt during that fiscal year over the aggregate amount of any distribution
during that fiscal year to the Partner that bears the economic risk of loss for
such Partner Nonrecourse Debt to the extent such distributions are from the
proceeds of such Partner Nonrecourse Debt and are allocable to an increase in
Partner Minimum Gain attributable to such Partner Nonrecourse Debt, determined
in accordance with Section 1.704-2(i) of the Regulations.
5
"PARTNERSHIP" means Behringer Harvard 1221 Xxxx XX, a Texas limited
partnership.
"PARTNERSHIP MINIMUM GAIN" has the meaning set forth in Section
1.704-2(d) of the Regulations. Subject to the foregoing, Partnership Minimum
Gain shall equal the amount of gain, if any, which would be recognized by the
Partnership with respect to each nonrecourse liability of the Partnership (or
Property owner) if the Partnership were to Transfer the Partnership property (or
the Property owner were to Transfer the Property owner property) which is
subject to such nonrecourse liability in full satisfaction thereof.
"PARTNERSHIP VOTE" shall mean a vote of the Partners. A Partnership Vote
may be conducted at a meeting of the General Partner and the Limited Partners,
which meeting may take place by means of telephone conference, video conference
or similar communications equipment by means of which all Persons participating
therein can hear each other. Alternatively, a Partnership Vote may be conducted
by notice sent by the General Partner to the Limited Partners, which notice
shall set forth (a) the matter with respect to which the Partnership Vote is to
be made and (b) the time period within which the General Partner and the Limited
Partners must respond to the notice. Such time period shall not be less than
seven (7) business days or more than fourteen (14) business days. If the General
Partner or any Limited Partner does not respond to the notice within the time
period specified in the notice, such Partner shall be deemed to have given its
written consent in favor of the matter set forth in the notice. If a written
consent or consents setting forth the matter to be determined is signed by the
General Partner and a Majority in Interest of the Limited Partners, Approval by
Partnership Vote shall be deemed to have been obtained with respect to such
matter.
"PELOTON" means Peloton Real Estate Partners, a Texas general
partnership.
"PERSON" means any individual or entity, and the heirs, executors,
administrators, legal representatives, successors and assigns of such Person
where the context so admits, and, unless the context otherwise requires, the
singular shall include the plural, and the masculine gender shall include the
feminine and the neuter and vice versa.
"PROFITS" AND "LOSSES" means, for each fiscal year or other period, an
amount equal to the Partnership's taxable income or loss for such year or
period, 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:
(a) Any income of the Partnership that is exempt from federal income tax
and not otherwise taken into account in computing Profits and Losses pursuant to
this subsection (a) shall be added to such taxable income or loss;
(b) Any expenditure 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(b)(2)(iv)(i), and not otherwise taken into account in
computing Profits or Losses pursuant to this subsection (b) shall be subtracted
from such taxable income or loss;
(c) In the event the Gross Asset Value of any of the Partnership assets
is adjusted pursuant to subsections (b) or (c) 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;
6
(d) 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;
(e) 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 computed in accordance with Section
1.704-1(b)(2)(iv)(g) of the Regulations for such fiscal year or other period;
and
(f) Notwithstanding anything contained herein to the contrary, any items
which are specially allocated pursuant to Sections 7.3(a), 7.3(b), 7.3(c),
7.3(d), 7.3(e) and 7.3(f) shall not be taken into account in computing Profits
or Losses.
"PROPERTY" means the tract of land (and all rights and appurtenances
incident thereto) described in EXHIBIT A attached hereto and all Improvements
located, or to be constructed, or developed thereon.
"PURCHASE AGREEMENT" means that certain Agreement of Sale and Purchase
by and between Realty America Group (1221 Xxxx Road), LP, a Texas limited
partnership, as purchaser, and 98 Cusa Plano, L.P., a Delaware limited
partnership, as seller, dated as of July 6, 2004, together with all amendments
thereto, it being agreed that the right, title and interest of Realty America
Group (1221 Xxxx Road), LP, in and to the Purchase Agreement shall be assigned
to the Partnership concurrently with the execution of this Agreement..
"REGULATIONS" means the federal income tax regulations, including
temporary regulations, promulgated under the Code, as such regulations may be
amended from time to time (including corresponding provisions of succeeding
regulations).
"RESERVES" means funds set aside or amounts allocated to reserves for
working capital, taxes, insurance, debt service or other costs and expenses
incident to the ownership and operation of the Property. The amount of funds to
be set aside in Reserves shall be determined by the General Partner subject to
Approval by Partnership Vote.
"RESIDUAL PERCENTAGE" means (a) the following percentages until such
time as the Limited Partners have received the Threshold Return: (i) as to the
General Partner, one-tenth of one percent (0.1%); (ii) as to BH Fund, eighty
nine and nine-tenths percent (89.9%); and (iii) as to Realty America, ten
percent (10%); and (b) the following percentages after the Limited Partners have
received the Threshold Return: (i) as to the General Partner, one-tenth of one
percent (0.1%); (ii) as to BH Fund, sixty two and nine-tenths percent (62.9%);
and (iii) as to Realty America, thirty seven percent (37%).
"TARGET ACCOUNT" means, with respect to any Partner as of any Adjustment
Date, a balance (which may be positive or negative) equal to the hypothetical
amount that such Partner would receive upon the liquidation of the Partnership,
assuming that (a) all assets of the Partnership were sold for an amount equal to
their respective Gross Asset Values, (b) all liabilities of the Partnership
allocable to those properties became due and were satisfied in accordance with
their terms (limited with respect to each non-recourse liability, to the Gross
Asset Value of the asset securing such liability), and (c) all net assets of the
Partnership were distributed pursuant to Section 6.1 hereof, computed after the
Capital Contributions have been made for the period ending on such Adjustment
Date. The General Partner shall determine Gross Asset Value from year to year or
at any point in time as needed.
7
"THRESHOLD RETURN" means an IRR of twenty five percent (25%).
"TRANSFER" means, with respect to a particular property, right or
interest, the assignment, sale, transfer, pledge, disposition, hypothecation,
mortgage, pledge or the grant of a lien or security interest in such right or
interest (or any part thereof), whether voluntarily, involuntarily or by
operation of law, and whether for consideration or no consideration.
ARTICLE II.
PARTNERS
2.1 GENERAL PARTNER.The name and address of the General Partner is
as follows:
Name Address
---- -------
Behringer Harvard 1221 Xxxx XX, LLC 00000 Xxxxxx Xxxxxxx, Xxxxx 000,
Xxxxxxx, Xxxxx 00000
Attn: Chief Legal Officer
2.2 LIMITED PARTNERS. The names and addresses of the Limited
Partners are as follows:
Name Address
---- -------
Behringer Harvard Short-Term Opportunity 00000 Xxxxxx Xxxxxxx, Xxxxx 000,
Fund I LP Xxxxxxx, Xxxxx 00000
Attn: Chief Legal Officer
Realty America Group (1221 Xxxx Road), LP 0000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attn: Xxxx X. Xxxxxx, III
ARTICLE III.
CAPITAL
3.1 INITIAL CAPITAL CONTRIBUTIONS. Prior to acquisition of the
Property by the Partnership, the Partners shall make Initial Capital
Contributions to the Partnership of cash in the amounts set forth opposite their
respective names on EXHIBIT C attached hereto and made a part hereof.
3.2 ADDITIONAL CAPITAL CONTRIBUTIONS.
(a) If at any time the General Partner determines that the
Partnership requires funds to close the acquisition of the Property or for
Operating Expenses, or that within ninety (90) days the Partnership will require
funds for Operating Expenses (collectively, "CASH NEEDS"), then the General
Partner shall use reasonable efforts to secure third party or Partner loans to
fulfill such Cash Needs. If such efforts to secure third party or Partner loans
are unsuccessful, the General Partner may send the Limited Partners written
notice ("ADDITIONAL CAPITAL NOTICE") requesting that the Limited Partners,
together with the General Partner, contribute in cash such amounts as are
necessary to satisfy such Cash Needs and describing the purpose for which the
funds are needed. If so requested, the General Partner and each Limited Partner
shall be obligated to make an Additional Capital Contribution equal to the
product of its
8
Residual Percentage and the amount of the Cash Needs. The time for the payment
of any Additional Capital Contribution to the Partnership shall be determined by
the General Partner, but shall in no event be less than ten (10) days after the
delivery of the Additional Capital Notice.
(b) If the General Partner or a Limited Partner fails to
timely contribute all or any portion of any Additional Capital Contribution
required of such Partner, then such Partner shall be considered a "DELINQUENT
PARTNER." The Partnership may, upon notice to a Delinquent Partner, exercise
either one of the following remedies as its sole remedy:
(i) permit the non-Delinquent Partner(s) to advance
that portion of the Additional Capital Contribution that is in default as a loan
(a "DEFAULT LOAN") with the following results: (A) the sum thus advanced shall
constitute a loan to the Delinquent Partner; (B) such loan and all accrued
unpaid interest thereon shall be due on demand, or if no demand is made, twelve
(12) months after such advance is made; (C) the loan shall bear interest at the
lesser of twelve percent (12%) per annum or the highest rate permitted by
applicable law, from the date made until the date fully repaid compounding
monthly; (D) all Partnership distributions and other payments that otherwise
would be made to the Delinquent Partner (whether before or after dissolution of
the Partnership) under this Agreement (including those under Article 6) shall be
paid to the non-Delinquent Partner until the loan and all interest accrued
thereon is paid in full (with all such payments being applied first to accrued
and unpaid interest and then to principal and being deemed to be a distribution
or payment (as may apply) to the Delinquent Partner, and, in turn, a payment by
the Delinquent Partner with respect to the loan from the non-Delinquent
Partner); and (E) the non-Delinquent Partner may, in addition to the other
rights granted herein, take such action as the non-Delinquent Partner may deem
appropriate to obtain payment of the loan at the expense of the Delinquent
Partner; or
(ii) permit the non-Delinquent Partner to contribute
that portion of the Additional Capital Contribution that is in default as an
Additional Capital Contribution made by the non-Delinquent Partner, in which
case the non-Delinquent Partner shall have its Residual Percentage increased and
the Delinquent Partner shall have its Residual Percentage decreased in the
following manner: (A) the Residual Percentage of the non-Delinquent Partner
immediately following such Additional Capital Contributions shall be increased
by an amount equal to 110% x A/B, where `A' equals the amount the non-Delinquent
Partner contributed in respect of the Delinquent Partner's required Additional
Capital Contribution, and `B' equals the sum of all unreturned Capital
Contributions previously made to the Partnership after giving effect to the
amounts advanced under this Section 3.2(b)(ii) on behalf of the Delinquent
Partner; and (B) the Residual Percentage of the Delinquent Partner shall be
decreased by the increase of the non-Delinquent Partner's Residual Percentage.
(c) The exercise by the Partnership of the remedies set
forth in Section 3.2(b) above shall be determined by the non-Delinquent Partner
in its sole discretion and not by the Delinquent Partners.
(d) With respect to any efforts by the General Partner to
obtain loans to the Partnership from a third party or a Partner (including the
General Partner), the financing terms must be substantially similar to (or more
favorable than) loans which the Partnership could obtain on a competitive
arms-length basis. If the General Partner is unable to determine whether the
financing terms are competitive on an arms-length basis, the General Partner may
seek a Partnership Vote on the issue, or may seek and rely upon the advice of an
independent expert in financing. If any Partner makes any loan or loans to the
Partnership or advances money on its behalf, the amount of any loan or advance
shall not be treated as a Capital Contribution but shall be treated as a debt
due from the Partnership to such Partner.
9
3.3 CAPITAL ACCOUNTS. The Partnership shall establish and maintain
on its books and records for each Partner a capital account (collectively the
"CAPITAL ACCOUNTS") in accordance with Section 1.704-1(b)(2)(iv) of the
Regulations. Subject to the foregoing, each Partner's Capital Account generally
shall be:
(a) increased by (i) the amount of money contributed by such
Partner to the Partnership, including Partnership liabilities assumed by such
Partner; (ii) the fair market value of property (net of liabilities securing
such property that the Partnership has assumed, or taken subject to, under
Section 752 of the Code), or other consideration contributed by such Partner to
the Partnership; and (iii) allocations to such Partner of Net Profits (and items
thereof, including certain tax exempt income) and income and gain described in
Section 1.704-1(b)(2)(iv)(g) of the Regulations; and
(b) decreased by (i) the amount of money distributed to such
Partner by the Partnership, including such Partner's individual liabilities
assumed by the Partnership; (ii) the fair market value of all property
distributed to such Partner by the Partnership (net of liabilities that such
Partner is considered to assume or take subject to under Section 752 of the
Code); and (iii) allocations to such Partner of Net Losses and deductions,
including expenses described in Section 705(a)(2)(B) of the Code which are not
deductible for tax purposes.
3.4 INTEREST ON AND WITHDRAWAL OF CAPITAL CONTRIBUTIONS. Neither the
General Partner nor the Limited Partners shall be entitled to receive any
interest on Capital Contributions, nor shall the General Partner or the Limited
Partners be entitled to withdraw or otherwise receive a return of their Capital
Contributions from the Partnership, except pursuant to the terms and conditions
of this Agreement. No Partner shall be required to contribute or lend any cash
or property to the Partnership to enable the Partnership to return any Partner's
Capital Contributions.
3.5 RESIGNATION; REDEMPTION. Except as otherwise expressly permitted
by this Agreement, no Partner may resign or withdraw from the Partnership
without Approval by Partnership Vote. A Partner's interest in the Partnership
may not be redeemed or purchased by the Partnership without prior Approval by
Partnership Vote.
3.6 TRANSFERS. If any interest in the Partnership is Transferred in
accordance with the terms of this Agreement, the Transferee will succeed to the
Capital Account of the Transferor to the extent it relates to the Transferred
interest.
ARTICLE IV.
MANAGEMENT
4.1 GENERAL POWERS OF GENERAL PARTNER. Except as provided in Section
4.3 hereof, the General Partner, acting alone, shall be authorized and empowered
to make all decisions and to act on behalf of the Partnership and be solely
responsible for the operation and management of the business of the Partnership,
with all rights and powers generally conferred by applicable law or necessary,
advisable or consistent in connection therewith, including without limitation to
cause the Partnership to make all decisions, take all actions as may be
necessary for the Partnership to perform fully, and promptly satisfy and
discharge each and every obligation or responsibility of the Partnership. The
General Partner may take all necessary and appropriate action to consummate a
Major Decision if the Major Decision was approved (or deemed approved) in
advance pursuant to Section 4.3 hereof. For any other action that does not or
would not constitute a Major Decision, the General Partner may take all
necessary and appropriate action without further authorization.
10
4.2 SPECIFIC POWERS OF THE GENERAL PARTNER. By way of illustration
of the General Partner's power and authority pursuant to Section 4.1 and not as
a limitation thereon, the General Partner shall have the unilateral right and
power to take any and all of the following actions on behalf of the Partnership
except to the extent any such action requires Approval by Partnership Vote
pursuant to Section 4.3 of this Agreement:
(a) to consummate the transaction contemplated in the
Purchase Agreement and the Mortgage Loan and to execute all documents necessary
or advisable in connection therewith; provided, however, that no material change
in the terms of the Purchase Agreement shall be made without Approval by
Partnership Vote.
(b) to take actions normal or customary for the owner of
businesses similar to that operated by the Partnership;
(c) to perform any and all acts necessary or appropriate in
connection with the business of the Partnership;
(d) to procure and maintain appropriate insurance covering
the property of the Partnership;
(e) to take and hold all property and assets of the
Partnership, real, personal and mixed, in the name of the Partnership;
(f) to coordinate all accounting and clerical functions of
the Partnership and employ and contract such accountants, lawyers, managers,
agents and other management or service personnel as may from time to time be
required to carry on the business of the Partnership;
(g) to negotiate and execute leases of the Property; and
(h) to engage in any kind of activity and to perform and
carry out contracts of any kind necessary to, or in connection with, or
incidental to, the development and operation of the Property as may be lawfully
carried on or performed by a limited partnership under the laws of each state in
which the Partnership is then formed, qualified, or does business.
4.3 MAJOR DECISIONS. All "Major Decisions" (hereinafter defined)
with respect to the Partnership business shall require Approval by Partnership
Vote. All Major Decisions shall be made by the Partners in a timely manner with
due regard for the necessity of obtaining and evaluating the information
necessary for making such Major Decisions. A "MAJOR DECISION" as used in this
Agreement means any decision with respect to the following matters:
(a) any merger or consolidation of the Partnership with
another entity;
(b) any acquisition of any real property other than the
Property;
(c) any borrowing by the Partnership or guarantee of debt of
any other Person, or permitting the Partnership to incur any debt or other
obligations other than the Mortgage Loan or trade payables with respect to the
Property (each of which is expressly approved hereby); provided, however, that
the General Partner may, without such action being Approved by Partnership Vote,
(i) obtain interim financing not to exceed eighty five percent (85%) of the
total cost of the Property and secure a first lien mortgage to pay off the
interim debt, which first lien mortgage shall not be at a rate in excess of 200
basis points over the corresponding treasury rate, (ii) refinance the Property
at a lower interest rate, and (iii)
11
refinance the Property, if as a result of such refinancing the personal
guarantees of the Partners or their Affiliates are removed, provided, however,
that the terms of such refinancing shall be subject to Approval by Partnership
Vote.
(d) except for expenditures made and obligations incurred
pursuant to an Operating Budget, making any expenditure or incurring any
obligation by or for the Partnership, or approving any such expenditure or
obligation to be made or incurred by the Partnership, in excess of 105% of the
amount set forth in an Operating Budget therefor (the "105% LIMITATION");
provided, that the General Partner may (without prior Approval by Partnership
Vote) make expenditures that it reasonably determines are necessary or
appropriate that exceed such 105% Limitation provided that the aggregate amount
of such expenditures do not exceed the lesser of: (i) fifteen percent (15%) of
the Operating Budget, or (ii) Fifty Thousand Dollars ($50,000.00) in any
12-month period; provided, further, that if emergency repairs to the Property
are necessary to avoid imminent danger of injury to the Property or to an
individual, the General Partner may make such expenditures as may be necessary
to alleviate such situation (without regard to the foregoing limitations) and
shall promptly notify the Limited Partners in writing of the event giving rise
to such repairs and the actions taken with respect thereto;
(e) causing the Partnership to file a voluntarily bankruptcy
petition, seeking or consenting to the appointment of a receiver, liquidator,
assignee, trustee, sequestrator, custodian or any similar official for the
Partnership or a substantial portion of its assets, causing the Partnership to
file a petition or answer seeking for itself any reorganization, arrangement,
composition, readjustment, liquidation or similar relief under any statute, law
or regulation, causing the Partnership to file an answer or other pleading
admitting or failing to contest the material allegations of a petition filed
against it in any proceeding of this nature or to take any action in furtherance
of the foregoing;
(f) causing the Partnership to file any lawsuit, other than
lawsuits arising from the normal day-to-day operation of the Property, such as
suits to collect unpaid rent and eviction suits;
(g) any payment by the Partnership of any compensation to a
Partner or an Affiliate of a Partner, or any transaction between the Partnership
and any Partner or Affiliate of a Partner, except to the extent that any payment
to, or transaction with, a Partner is set forth in an approved Operating Budget
or expressly authorized or approved pursuant to the terms of this Agreement;
(h) executing or approving any agreement or contract with
any Person to be an agent for the Partnership or to be other than an independent
contractor, or which permits any such Person to sign any agreement or contract,
including, without limitation, brokerage, listing or commission agreements or
service contracts, on behalf of the Partnership;
(i) the dedication of any portion of the Property to any
federal, state or local government or political subdivision;
(j) approval of a management or leasing agreement related to
the Property;
(k) executing or approving any agreement, contract, or
arrangement, with a term of more than one year that is not terminable with
30-days notice without penalty;
(l) assigning the Partnership's rights in specific
Partnership property for other than Partnership purposes;
(m) any act in contravention of this Agreement;
12
(n) any act which would make it substantially impractical to
carry on the ordinary business of the Partnership, other than a Transfer of all
or substantially all of the assets of the Partnership with respect to which
Approval by Partnership Vote has been obtained;
(o) any confession of a judgment against the Partnership;
(p) making, executing or delivering any assignment for the
benefit of creditors of the Partnership, or signing any bond, confession of
judgment, indemnity bond or surety bond by or on behalf of the Partnership;
(q) any Transfer (other than leases of the Property executed
in the ordinary course of business) of all or any part of (i) the Property, or
(ii) any other Partnership asset the value of which exceeds $25,000;
(r) any admission of any new Partner to the Partnership;
(s) the dissolution or termination of the Partnership
(t) the approval of any tax election that adversely affects
a Limited Partner;
(u) any change in the nature, purpose or scope of business
of the Partnership; and
(v) any other decision or action which by the provisions of
this Agreement is required to be authorized by Approval by Partnership Vote.
4.4 OPERATING BUDGETS. The Partnership shall operate under annual
Operating Budgets which shall be prepared in accordance with the Management
Agreement. After an annual Operating Budget has been approved, the General
Partner shall implement it on behalf of the Partnership and may cause the
Partnership to incur the expenditures and obligations therein provided. The
General Partner shall submit (or request the manager of the Property to submit)
to the Limited Partners any proposed Operating Budget for each calendar year by
November 15 of the preceding calendar year. Provided that each of the Limited
Partners receives the proposed Operating Budget for each calendar year by
November 15 of the preceding calendar year, together with all supporting
information necessary for the Limited Partners to review the Operating Budget,
each Limited Partner will approve, reject, or provide changes to the Operating
Budget by December 15 of the year in which the proposed Operating Budget was
submitted to the Limited Partners. If an Operating Budget for any calendar year
has not been approved by a Majority in Interest by January 1 of that year, the
Partnership shall continue to operate under the Operating Budget for the
previous year with such adjustments as may be necessary to reflect deletion of
non-recurring expense items set forth on the previous Operating Budget and
increased insurance costs, taxes, utility costs, and debt service payments.
4.5 LIMITED PARTNER PARTICIPATION IN MANAGEMENT. The Limited
Partners, as limited partners, shall not participate in the operation or
management of the business of the Partnership, or transact any business for or
in the name of the Partnership, and the Limited Partners, as the limited
partners, shall not have any right or power to sign for or bind the Partnership
in any manner, except as expressly provided under the provisions of this
Agreement. Any rights of the Limited Partners to consent to and approve of
certain matters under the provisions of this Agreement shall not be deemed a
participation in the operation and management of the business of the Partnership
or the exercise of control of the Partnership business. Except as may be
otherwise expressly provided herein, the Limited Partners shall not have the
right to vote on any matter concerning the management and affairs of the
Partnership.
13
4.6 PAYMENT OF COSTS AND EXPENSES. The Partnership will be
responsible for paying all costs and expenses of forming and continuing the
Partnership, acquiring the Property, and conducting the business of the
Partnership, including, without limitation, accounting costs, legal expenses and
office supplies. In the event any such costs and expenses are incurred and paid
by the General Partner on behalf of the Partnership, then, except as expressly
provided to the contrary in this Agreement, such Partner shall be entitled to be
reimbursed for such payment so long as such cost or expense was reasonably
necessary and is reasonable in amount. The Partnership may use the proceeds of
any revenues of the Partnership to reimburse a Partner for any such costs and
expenses so paid.
4.7 TRANSACTIONS WITH AFFILIATES. Any agreement whereby any service
or activity to be performed for the Partnership is to be performed by an
Affiliate of a Partner shall require Approval by a Partnership Vote. The
Partners hereby acknowledge and agree that Approval by Partnership Vote has been
obtained with respect to the Management Agreement.
4.8 FEES PAYABLE BY THE PARTNERSHIP.
(a) Upon the acquisition of the Property, the Partnership
shall pay a brokerage commission equal to one percent (1%) of the purchase price
for the Property (as defined in the Purchase Agreement), with fifty percent
(50%) of such fee being paid to Realty America (or its designated Affiliate) and
fifty percent (50%) of such fee being paid to Peloton (or its designated
Affiliate).
(b) The Partnership shall contract with HPT for HPT to
perform management services in respect of the Property in accordance with the
Management Agreement, pursuant to which HPT will receive a management fee from
the Partnership as set forth in the Management Agreement.
(c) The Partners acknowledge and agree that HPT may, at its
option, subcontract with an affiliate of the Xxxxxxxx Xxxx Company to perform
management services in respect of the Property in accordance with the Management
Agreement.
(d) The Partnership shall enter into the Leasing Agreement
with Peloton (and the General Partner is hereby authorized to execute the
Leasing Agreement on behalf of the Partnership).
(e) The Partnership shall pay to Behringer Harvard Advisors
II LP, an affiliate of the General Partner, an annual asset management fee equal
to one-half of one percent (0.5%) of gross revenues from the Property, payable
on each anniversary of the date of this Agreement, but in no event an amount in
excess of one-half of one percent (0.5%) of the value of the Property per year.
(f) Realty America and Peloton shall be entitled to act as
listing agents in connection with any sale of the Property. Accordingly, Realty
America and Peloton shall perform such services as are customarily performed by
listing agents for property similar to the Property in the Dallas/Fort Worth
area, and such services shall be substantial services in connection with the
sales effort performed on behalf of the Partnership as agent for the General
Partner (or Affiliate designated by the General Partner) in respect of the
disposition of the Property. In consideration of such efforts, the Partnership
shall pay to Realty America and Peloton a market rate sales commission, payable
if and when the closing of the sale of the Property occurs, with fifty percent
(50%) of such fee being paid to Realty America (or its designated Affiliate) and
fifty percent (50%) of such fee being paid to Peloton (or its designated
Affiliate). Notwithstanding the preceding sentence: (a) in no event shall the
total sales commission payable by the Partnership pursuant to the preceding
sentence exceed two percent (2%) of the gross sales proceeds received by the
Partnership for the Property; and (b) if any broker other than Realty America or
Peloton is involved in the sale of the Property, Realty America and Peloton
shall be obligated to pay any commission due to such broker.
14
4.9 OTHER COMPENSATION. Except as provided in this Agreement, no
Partner or its Affiliate shall be entitled to any compensation unless Approval
by Partnership Vote is obtained with respect thereto.
ARTICLE V.
RIGHTS AND POWERS OF PARTNERS
5.1 LIMITATION OF LIABILITY.
(a) LIMITATION ON LIABILITY OF LIMITED PARTNERS. The Limited
Partners shall not be bound by, or personally liable for, obligations or
liabilities of the Partnership to outside third parties beyond the amount of
their Capital Contributions to the Partnership, and the Limited Partners shall
not be required to contribute any capital to the Partnership for any obligations
to third parties in excess of the Capital Contributions actually made under
Sections 3.1 and 3.2 hereof.
(b) LIMITATION ON LIABILITY OF GENERAL PARTNER. The General
Partner (including its members, officers, directors, agents, employees and
representatives) shall not be liable or responsible in damages or otherwise to
the Partnership or any Partner for any liability or loss relating to the
performance or nonperformance of any act concerning the business of the
Partnership, provided the General Partner was not guilty of gross negligence or
willful misconduct.
5.2 INDEMNIFICATION.
(a) The General Partner (including its members, partners,
officers, directors, agents, employees and representatives) shall be indemnified
by the Partnership to the fullest extent permitted by law, against any losses,
judgments, liabilities, expenses and amounts paid in settlement of any claims
sustained by it or any of them in connection with the Partnership, provided that
the General Partner has determined in good faith that such course of conduct was
in, and not opposed to, the best interests of the Partnership and such liability
or loss was not the result of gross negligence or willful misconduct, or a
material breach of this Agreement on the part of the General Partner or such
person, and (2) any such indemnification will only be recoverable from the
assets of the Partnership and the Limited Partners shall not have any liability
on account thereof. All rights to indemnification permitted herein and payment
of associated expenses shall not be affected by the dissolution or other
cessation of the existence of the General Partner, or the withdrawal,
adjudication of bankruptcy or insolvency of the General Partner.
(b) Expenses incurred in defending a threatened or pending
civil, administrative or criminal action, suit or proceeding against any person
who may be entitled to indemnification pursuant to this Section 5.2 may be paid
by the Partnership in advance of the final disposition of such action, suit or
proceeding, if (i) the legal action relates to the performance of duties or
services by such person on behalf of the Partnership, (ii) the legal action is
initiated by a third party who is not a Limited Partner, and (iii) such person
undertakes to repay the advanced funds to the Partnership in cases in which it
is not entitled to indemnification under this Section 5.2.
(c) The term "General Partner" as used in this Section 5.2
shall include any additional or substitute general partner and any Affiliate of
a General Partner performing services on behalf of the Partnership.
5.3 OTHER BUSINESS ACTIVITIES. Subject to the other express
provisions of this Agreement, each Partner and any Affiliate thereof may engage
in and possess interests in other business ventures of any and every type and
description, independently or with others, including ones in direct or indirect
15
competition with the Partnership, with no obligation to offer to the Partnership
or any other Partner the right to participate therein or to account therefor.
5.4 INFORMATION. In addition to the other rights specifically set
forth in this Agreement, each Partner is entitled to the following information:
(a) true and full information regarding the status of the business and financial
condition of the Partnership; (b) promptly after becoming available, a copy of
the Partnership's federal, state and local income tax returns for each year; (c)
a current list of the name and last known business, residence or mailing address
of each Partner; (d) a copy of this Agreement, the Certificate, and all
amendments to such documents; and (e) other information regarding the affairs of
the Partnership to which that Partner is entitled pursuant to the TRLPA.
5.5 PRESS RELEASES. No public announcement, press release or other
disclosure of the terms of this Agreement or the activities of the Partnership,
or the plans of the Partnership will be made unless same is proposed by the
General Partner and authorized by Approval by Partnership Vote. However,
notwithstanding the preceding sentence, any Partner shall have the right,
without obtaining the consent of any other Partner, to make such disclosures as
may, in the reasonable judgment of such Partner's counsel, be required by
applicable law.
ARTICLE VI.
DISTRIBUTIONS/ALLOCATIONS OF PROFITS AND LOSSES
6.1 DISTRIBUTIONS OF DISTRIBUTABLE CASH. Within twenty (20) days
following the end of each month (unless Approval by Partnership Vote is
otherwise obtained), the Partnership shall distribute Distributable Cash in the
following order of priority:
(a) First, to the Partners in proportion to their respective
Additional Capital Contribution Account balances until their respective
Additional Capital Contribution Account balances are reduced to zero;
(b) Next, to the Partners in proportion to their respective
Initial Capital Contribution Account balances until their respective Initial
Capital Contribution Account balances are reduced to zero;
(c) Next, to the Partners, pro rata in accordance with their
Residual Percentages (as calculated pursuant to clause (a) of the definition of
such term) until the Partners have received distributions sufficient to provide
the Threshold Return to such Partners; and
(d) Next, to the Partners, pro rata in accordance with their
Residual Percentages (as calculated pursuant to clause (b) of the definition of
such term).
ARTICLE VII.
ALLOCATION OF PROFITS AND LOSSES
7.1 ALLOCATION OF PROFITS AND LOSSES. After application of Section
7.3 hereof, Profits and Losses for each fiscal year shall be allocated among the
Partners so as to reduce, proportionately, in the case of any Profits, the
difference between their respective Target Accounts and Partially Adjusted
Capital Accounts for such fiscal year and, in the case of Losses, the difference
between their respective Partially Adjusted Capital Accounts and Target Accounts
for such fiscal year. To the extent that, in the fiscal year in which all or
substantially all of the Partnership's assets are disposed of, or in the fiscal
year in which the Partnership is liquidated, the allocation of Profit or Loss
set forth in the preceding sentence
16
does not cause each Partner's Partially Adjusted Capital Account balance to
equal the balance of its Target Account, items of income or gain will be
reallocated to any Partner with a Partially Adjusted Capital Account which is
less than its Target Account, and items of loss, deduction or expense will be
reallocated to any Partner with a Partially Adjusted Capital Account that is
greater than its Target Account in such manner as to reduce, to the greatest
extent possible, the difference between each Partner's respective balance in its
Target Account and its Partially Adjusted Capital Account balance.
7.2 LIMITATION ON LOSS ALLOCATIONS. Notwithstanding anything in this
Agreement to the contrary, no Losses or item of deduction shall be allocated to
a Partner if such allocation would cause the Capital Account of such Partner to
have a deficit in excess of the sum of (a) the amount of additional capital such
Partner would be required to contribute to the Partnership if the Partnership
were to dissolve on the last day of the accounting period to which such
allocation relates plus (b) such Partner's distributive share of Partnership
Minimum Gain as of the last day of such accounting period, determined pursuant
to Regulations Section 1.704-2(g)(1), plus (c) such Partner's share of Partner
Minimum Gain as of the last day of such year, determined pursuant to Regulation
Section 1.704-2(i)(5). Any amounts not allocated to a Partner pursuant to the
limitations set forth in this paragraph shall be allocated to the other Partners
to the extent possible without violating the limitations set forth in this
paragraph. For purposes of the foregoing provisions, the balance of a Partner's
Capital Account shall be determined after reducing such Capital Account by (i)
all anticipated allocations of loss or deduction pursuant to Sections 704(e)(2)
and 706(d) of the Code, and Section 1.751-1(b)(2)(ii) of the Regulations, and
(ii) anticipated distributions to such Partner to the extent such anticipated
distributions exceed anticipated increases to such Partner's Capital Account
during or prior to the year of distribution (other than increases which may not
be taken into account pursuant to Section 1.704-1(b)(2)(ii)(d)(6) of the
Regulations).
7.3 SPECIAL ALLOCATIONS. The following special allocations shall be
made in the following order:
(a) MINIMUM GAIN CHARGEBACK. Except as otherwise provided in
Section 1.704-2(f) of the Regulations, in the event there is a net decrease in
Partnership Minimum Gain during a Partnership taxable year, each Partner shall
be allocated (before any other allocation is made pursuant to this Section 7.3)
items of income and gain for such year (and, if necessary, for subsequent years)
equal to that Partner's share of the net decrease in Partnership Minimum Gain.
The determination of a Partner's share of the net decrease in Partnership
Minimum Gain shall be determined in accordance with Regulations Section
1.704-2(g). The items to be specially allocated to the Partners in accordance
with this Section 7.3(a) shall be determined in accordance with Regulation
Section 1.704-2(f)(6). This Section 7.3(a) is intended to comply with the
Minimum Gain chargeback requirement set forth in Section 1.704-2(f) of the
Regulations and shall be interpreted consistently therewith.
(b) PARTNER MINIMUM GAIN CHARGEBACK. Except as otherwise
provided in Section 1.704-2(i)(4), in the event there is a net decrease in
Partner Minimum Gain during a Partnership taxable year, each Partner who has a
share of that Partner Minimum Gain as of the beginning of the year, to the
extent required by Regulation Section 1.704-2(i)(4), shall be specially
allocated items of Partnership income and gain for such year (and, if necessary,
subsequent years) equal to that Partner's share of the net decrease in Partner
Minimum Gain. Allocations pursuant to this subparagraph (b) shall be made in
accordance with Regulation Section 1.704-2(i)(4). This Section 7.3(b) is
intended to comply with the requirement set forth in Regulation Section
1.704-2(i)(4) and shall be interpreted consistently therewith.
(c) QUALIFIED INCOME OFFSET ALLOCATION. In the event any
Partner unexpectedly receives any adjustments, allocations or distributions
described in Regulation Sections 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) or which would cause the
17
negative balance in such Partner's Capital Account to exceed the sum of (i) his
obligation to restore a Capital Account deficit upon liquidation of the
Partnership, plus (ii) his share of Partnership Minimum Gain determined pursuant
to Regulation Section 1.704-2(g)(1), plus (iii) such Partner's share of Partner
Minimum Gain determined pursuant to Regulation Section 1.704-2(i)(5), items of
Partnership income and gain shall be specially allocated to such Partner in an
amount and manner sufficient to eliminate such excess negative balance in his
Capital Account as quickly as possible. This Section 7.3(c) is intended to
comply with the alternative test for economic effect set forth in Regulation
Section 1.704-1(b)(2)(ii)(d) and shall be interpreted consistently therewith.
(d) GROSS INCOME ALLOCATION. In the event any Partner has a
deficit Capital Account at the end of any Partnership fiscal year which is in
excess of the sum of (i) any amounts such Partner is obligated to restore
pursuant to this Agreement, plus (ii) such Partner's distributive share of
Minimum Gain as of such date, plus such Partner's share of Partner Minimum Gain
determined pursuant to Regulation Section 1.704-2(i)(5), each such 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 7.3(d) shall be made only if and to the extent that such Partner would
have a deficit Capital Account in excess of such sum after all other allocations
provided for in this Section 7.3 have been made, except assuming that Section
7.3(c) above and this Section 7.3(d) were not contained in this Agreement.
(e) ALLOCATION OF NONRECOURSE DEDUCTIONS. Nonrecourse
Deductions shall be allocated to the Partners in accordance with their
respective Residual Percentages.
(f) ALLOCATION OF PARTNER NONRECOURSE DEDUCTIONS. Partner
Nonrecourse Deductions shall be allocated as prescribed by the Regulations.
(g) BASIS ADJUSTMENT UNDER SECTION 754. To the extent an
adjustment to the adjusted tax basis of any Partnership assets pursuant to Code
Section 734(b) or Code Section 743(b) is required, pursuant to Regulations
Section 1.704-1(b)(2)(iv)(m), 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.
7.4 BUILT-IN GAIN OR LOSS/SECTION 704(C) TAX ALLOCATIONS. In the
event that the Capital Accounts of the Partners are credited with or adjusted to
reflect the Gross Asset Value of the Partnership's property and assets, the
Partners' distributive shares of depreciation, depletion, amortization, and gain
or loss, as computed for tax purposes, with respect to such property, shall be
determined pursuant to Section 704(c) of the Code and the Regulations
thereunder, so as to take account of the variation between the adjusted tax
basis and Gross Asset Value of such property in a manner determined by Approval
by Partnership Vote. Any deductions, income, gain or loss specially allocated
pursuant to this Section 7.4 shall not be taken into account for purposes of
determining Profits or Losses or for purposes of adjusting a Partner's Capital
Account.
7.5 RECAPTURE. Ordinary income arising from the recapture of
depreciation and unrecaptured Section 1250 gain shall be allocated to the
Partners in the manner that is prescribed by the Regulations, or if the
Regulations do not prescribe a manner in which depreciation is to be recaptured,
then depreciation shall be recaptured in the same manner as such depreciation
was allocated to the Partners.
7.6 RETENTION OF SECTION 751 ASSETS. Upon the occurrence of an event
which would otherwise cause a reduction in a Partner's respective interest in
the Partnership's Section 751 assets
18
("substantially appreciated inventory" and "unrealized receivables" as defined
in Section 751 of the Code), such as the admission of new Partners or otherwise,
no such reduction shall occur with respect to Partners who were Partners
immediately preceding such event and who continue to be Partners after the
occurrence of such event but, rather, each such Partner shall retain his
respective interest in the Partnership's Section 751 assets existing immediately
prior to such event.
7.7 PROHIBITION AGAINST RETROACTIVE ALLOCATIONS. Notwithstanding
anything in this Agreement to the contrary, no Partner shall be allocated any
loss, credit or income attributable to a period prior to his admission to the
Partnership. In the event that a Partner Transfers all or a portion of his
Partnership interest, or if there is a reduction in a Partner's Residual
Percentage due to the admission of new Partners or otherwise, each Partner's
distributive share of Partnership items of income, loss, credit, etc., shall be
determined by taking into account each Partner's varying interests in the
Partnership during the Partnership's taxable year. For this purpose, each
Partner's distributive share shall be estimated by taking the pro rata portion
of the distributive share such Partner would have included in his taxable income
had he maintained his Residual Percentage throughout the Partnership year. Such
proration shall be based upon the portion of the year during which such Partner
held the Residual Percentage, except that extraordinary, nonrecurring items
shall be allocated to the persons holding Partnership interests at the time such
extraordinary items occur.
7.8 ALLOCATION OF NONRECOURSE LIABILITIES. The "excess nonrecourse
liabilities" of the Partnership (within the meaning of Section 1.752-3(a)(3) of
the Regulations) shall be allocated to the Partners in accordance with their
respective Residual Percentages.
ARTICLE VIII.
TRANSFER OF PARTNERSHIP INTEREST
8.1 PROHIBITION ON DISPOSITION OF GENERAL PARTNER'S INTEREST. Unless
Approval by Partnership Vote is otherwise obtained, or except as otherwise
permitted in this Agreement, the General Partner may not, directly or
indirectly, by operation of law or otherwise (a) withdraw or resign from the
Partnership, or (b) Transfer any or all of its interest in the Partnership. In
addition, the General Partner shall not permit the Transfer of any interest in
the General Partner unless Approval by Partnership Vote is obtained with respect
to such Transfer. Any act in violation of this Section 8.1 shall be null and
void as against the Partnership and the Limited Partners, except as otherwise
required by law.
8.2 GENERAL PARTNER CEASING TO BE A GENERAL PARTNER. Unless Approval
by Partnership Vote is otherwise obtained, a General Partner shall cease to be a
General Partner of the Partnership upon the happening of any of the following
events (hereinafter each referred to as an "EVENT OF WITHDRAWAL"):
(a) such General Partner makes an assignment for the benefit
of creditors; files a voluntary petition of bankruptcy; is adjudicated as
bankrupt or insolvent or is the subject of an order for relief under the
bankruptcy laws; files a petition or answer seeking for itself any
reorganization, arrangement or similar relief under any statute, law or
regulation; files an answer or other pleading admitting or failing to contest
the material allegations of a petition filed against it in any proceeding of
this nature; or seeks, consents to or acquiesces in the appointment of a
trustee, receiver or liquidator of all or any substantial part of its
properties;
(b) such General Partner fails to dismiss within one hundred
twenty (120) days after the commencement of any proceeding which attempts to
attach or charge the General Partner's Partnership interest or which seeks
reorganization, arrangement, composition, readjustment, liquidation, dissolution
or similar relief against the General Partner under any statute, law or
regulation, or if within
19
ninety (90) days after a court order attaching or charging its Partnership
interest or the appointment without its consent or acquiescence of a trustee,
receiver or liquidator of such General Partner or all or any substantial part of
its properties, the order or appointment is not vacated or stayed, or within
ninety (90) days after the expiration of any such stay, the order or appointment
is not vacated;
(c) In the case of any General Partner which is a
corporation, limited partnership or limited liability company, the filing of a
certificate of dissolution or its equivalent for the corporation, limited
partnership or limited liability company, or the revocation of its charter or
authority to do business in the jurisdiction of its formation;
(d) The withdrawal of a General Partner from the Partnership
as provided in Section 8.1 above; or
(e) The Transfer by a General Partner of all or any part of
its interest in the Partnership except as approved by Partnership Vote pursuant
to Section 8.1.
Any person ceasing to be a General Partner (other than as a
result of paragraph (d) and (e) of this Section 8.2) shall automatically become
a limited partner of the Partnership having the same percentage interest in the
profits, losses and distributions of the Partnership that it had while it was a
general partner, and provided further that in the event that the Partners elect
to continue the Partnership pursuant to Section 12.1(b) below, and a new General
Partner is admitted to the Partnership to enable the Partnership to continue,
then the General Partner being converted to a limited partner shall Transfer a
..005% Residual Percentage to the newly admitted general partner. Such Transfer
shall not reduce the interest in the Partnership of any Partner other than the
General Partner which is being converted to a limited partner.
8.3 GENERAL PROHIBITION AGAINST TRANSFERS OF LIMITED PARTNER'S
INTEREST. A Limited Partner may not Transfer any or all of such Partner's
interest in the Partnership except as permitted in Section 8.4. Any act in
violation of this Article shall be null and void as against the Partnership and
the Partners, except as otherwise provided by law.
8.4 CONDITIONS UPON TRANSFERS BY A LIMITED PARTNER. A Limited
Partner may Transfer all or any part of such Partner's interest in the
Partnership only with the written consent of the General Partner and Approval by
Partnership Vote; provided, however, that the General Partner's written consent
shall not be given unless:
(i) the General Partner is satisfied that the
proposed Transfer will not have any adverse effect upon the Partnership or the
Partners under federal income tax laws then in effect or cause any default in
any loan documents of the Partnership or the Property owner;
(ii) the General Partner has received, if requested,
an opinion from counsel for the Partnership to the effect that such Transfer
will not violate federal or state securities laws or regulations; and
(iii) the person, firm or entity to acquire such
interest agrees to comply with all terms of this Agreement, including without
limitation Section 8.5 below.
8.5 SUBSTITUTION OF ASSIGNEE. No Transferee of the whole or any
portion of a Limited Partner's interest in the Partnership shall have the right
to be admitted to the Partnership and become a Limited Partner unless and until
all of the Partners in their absolute discretion consent and all of the
following conditions are satisfied:
20
(a) the Transferor and Transferee execute and acknowledge a
written instrument of assignment, together with such other instruments as the
General Partner may deem necessary or desirable to effect the admission of the
Transferee as a substitute Limited Partner; and
(b) an instrument specifically Transferring such interest,
signed by both assignor and assignee, shall be filed with the General Partner,
and until such instrument is so filed, the Partnership shall not recognize any
Transfer of interest for the purposes of making payments of profits, income or
any other distribution with respect to such interest.
8.6 BUY-SELL IN EVENT OF OFFER TO PURCHASE ASSETS.
(a) If a BONA FIDE offer is made to the Partnership for the
purchase of the then-remaining portion of the Property still owned by the
Partnership, the General Partner shall notify the Partners of such offer, and if
one or more Partners desires to accept such offer and the other Partners do not,
then the Partners who do not want to accept the offer (whether one or more, the
"PURCHASING PARTNER") shall, at the request of the Partners who want to accept
the offer (whether one or more, the "SELLING PARTNER"), purchase the interest in
the Partnership owned by the Selling Partner. The purchase price payable by the
Purchasing Partner to the Selling Partner shall be an amount equal to the amount
which the Selling Partner would have received had the Property been sold by the
Partnership for the amount offered which the Selling Partner wished to accept.
Closing shall occur at the offices of the Partnership no later than 60 days
following the date notice from the Selling Partner is delivered to the
Purchasing Partner, requesting that the Purchasing Partner purchase the Selling
Partner's Partnership Interest.
(b) At the closing, the applicable interests in the
Partnership shall be duly conveyed, free of all liens and encumbrances. The
purchase price shall be paid by wire transfer of immediately available federal
funds, unless a different manner of payment was set forth in the offer or is
otherwise agreed to by the Partnership. At the election of the Purchasing
Partner, the applicable interests in the Partnership to be purchased may be
acquired in the name of a nominee (whether or not such nominee is an Affiliate
of the Purchasing Partner), provided, that the Purchasing Partner shall have
designated such nominee by written notice prior to the date of purchase. It
shall be a condition of the Selling Partner's obligation to proceed with any
such purchase that the Purchasing Partner shall have obtained releases of any
guaranties of indebtedness of the Partnership executed by the Selling Partner or
any Affiliates of (or principals in) the Selling Partner. The Purchasing
Partner, in addition to paying at the closing the purchase price, shall be
obligated to loan to the Partnership an amount sufficient to discharge at the
closing all outstanding and unpaid obligations of the Partnership to the Selling
Partner as of such time.
(c) Upon receipt of the purchase price, the Selling Partner
shall execute and deliver all documents reasonably required to transfer the
interest in the Partnership being sold. The Selling Partner shall also execute
such resignations and other documents as may be reasonably required by counsel
for the Partnership to accomplish the withdrawal of the Selling Partner as a
Partner of the Partnership and the Purchasing Partner shall assume all of the
Selling Partner's obligations to the Partnership and any of its creditors under
any loans to the Partnership permitted by this Agreement, such assumptions to be
in form reasonably satisfactory to counsel for the Selling Partner.
(d) It is expressly agreed that the remedy at law for breach
of any of the obligations set forth in this Section 8.6 is inadequate in view of
(i) the complexities and uncertainties in measuring the actual damages that
would be sustained by reason of the failure of a Partner to comply fully with
each of said obligations, and (ii) the uniqueness of the Partnership business
and Partners' relationship. Accordingly, each of the aforesaid obligations shall
be, and is hereby expressly made, enforceable by specific performance.
21
8.7 BUY-SELL AFTER FIRST ANNIVERSARY.
(a) Any Partner (the "OFFEROR") may make an offer in writing
to the other Partners (the "OFFEREE"), which shall state an amount (the
"BUY-SELL VALUE") determined in the sole and absolute discretion of the Offeror.
The Buy-Sell Value shall be the amount that the Offeror chooses to be the value
of the Assets. An offer made pursuant to this Section 8.7 shall constitute an
irrevocable offer by the Offeror to the Offeree either (i) to sell all, but not
less than all, of the Offeror's interests in the Partnership (including any
interests held by, or Transferred to, its Affiliates), or (ii) to purchase all,
but not less than all, of the Offeree's interests in the Partnership (including
any interests held by or Transferred to its Affiliates). The Offeree shall have
fifteen (15) days after receipt of an offer made pursuant to this Section 8.7 to
elect either (i) to sell its interests in the Partnership at a price equal to
the amount the Offeree would have received pursuant to a liquidation of the
Partnership if the Assets had been sold to a third party for the Buy-Sell Value
and the proceeds therefrom had been applied and distributed in accordance with
Section 12.2 (assuming that all allocations resulting from the sale had been
made and no reserves are established); or (ii) to buy the Offeror's interest in
the Partnership at a price equal to the amount the Offeror would have received
pursuant to a liquidation of the Partnership if the Assets had been sold to a
third party for the Buy-Sell Value and the proceeds therefrom had been applied
and distributed in accordance with Section 12.2 (assuming that all allocations
resulting from the sale had been made and no reserves are established). If the
Offeree fails to make such an election within fifteen (15) days after receipt of
an offer under this Section 8.7(a), the Offeree shall be deemed to have elected
to sell its interests in the Partnership. In any case in which there is more
than one purchasing Partner, the purchasing Partners shall determine the
proportions of the interests in the Partnership to be purchased by each such
Partner.
(b) Closing shall occur at the offices of the Partnership no
later than 60 days following the date after the election to purchase has been
made or deemed made. At the closing, the applicable interests in the Partnership
shall be duly conveyed, free of all liens and encumbrances, and the purchase
price shall be paid by wire transfer of immediately available federal funds. At
the election of the purchasing Partner, the applicable interests in the
Partnership to be purchased may be acquired in the name of a nominee (whether or
not such nominee is an Affiliate of the Purchasing Partner), provided, that the
Purchasing Partner shall have designated such nominee by written notice prior to
the date of purchase. It shall be a condition of the selling Partner's
obligation to proceed with any such purchase that the purchasing Partner shall
have obtained releases of any guaranties of indebtedness of the Partnership
executed by the selling Partner or any Affiliates of (or principals in) such
selling Partner. The purchasing Partner, in addition to paying at the closing
the purchase price, shall be obligated to loan to the Partnership an amount
sufficient to discharge at the closing all outstanding and unpaid obligations of
the Partnership to the selling Partner as of such time.
(c) Upon receipt of the purchase price, the selling Partner
shall execute and deliver all documents reasonably required to transfer the
interest in the Partnership being sold. The selling Partner shall also execute
such resignations and other documents as may be reasonably required by counsel
for the Partnership to accomplish the withdrawal of the selling Partner as a
Partner of the Partnership and the purchasing Partner shall assume all of the
selling Partner's obligations to the Partnership and any of its creditors under
any loans to the Partnership permitted by this Agreement, such assumptions to be
in form reasonably satisfactory to counsel for the selling Partner.
(d) It is expressly agreed that the remedy at law for breach
of any of the obligations set forth in this Section 8.7 is inadequate in view of
(i) the complexities and uncertainties in measuring the actual damages that
would be sustained by reason of the failure of a Partner to comply fully with
each of said obligations, and (ii) the uniqueness of the Partnership business
and Partners' relationship.
22
Accordingly, each of the aforesaid obligations shall be, and is hereby expressly
made, enforceable by specific performance.
8.8 AUTHORITY OF GENERAL PARTNER. For purposes of Section 8.6 and
Section 8.7 above, the General Partner and BH Fund shall be treated as one
Partner, and the General Partner shall make all decisions on behalf of the
General Partner and BH Fund regarding the initiation of the buy/sell procedure
or any other decision to be made pursuant to Section 8.6 or Section 8.7. BH Fund
hereby irrevocably constitutes and appoints the General Partner as its
attorney-in-fact with full power to bind BH Fund hereunder and execute documents
of transfer on its behalf.
8.9 COST AND EXPENSE OF TRANSFER; ALLOCATION OF PROFITS AND LOSSES.
All costs and expenses incurred by the Partnership in connection with any
disposition of a Partner's interest, including any filing, recording and
publishing costs and the fees and disbursements of counsel, shall be paid by the
Partner disposing of such interest. If an interest in the Partnership is
disposed of pursuant to this Article VIII, the selling Partner shall
nevertheless be entitled to a portion of the profits and be charged with a
portion of the losses allocated to such interest or part thereof for the fiscal
year of the Partnership in which such disposition occurs, consistent with
Section 7.7 above.
ARTICLE IX.
OWNERSHIP OF PARTNERSHIP PROPERTY
All real or personal property, including all improvements placed or
located thereon, acquired by the Partnership shall be owned by and in the name
of the Partnership, such ownership being subject to the other terms and
provisions of this Agreement.
ARTICLE X.
FISCAL MATTERS
10.1 FISCAL YEAR. The fiscal year of the Partnership shall be the
calendar year.
10.2 RECORDS; FINANCIAL STATEMENTS.
(a) Proper books and records shall be kept with reference to
all Partnership transactions at the principal place of business of the
Partnership, and each Partner shall at all reasonable times during business
hours have access thereto. The books shall be kept in such manner of accounting
as shall properly reflect the actions of the Partnership in accordance with
accounting principles generally accepted within the industry and consistently
applied on such basis as will, in the opinion of the Partnership's accountants,
be most advantageous to the Partnership. The books and records shall include the
designation and identification of any property in which the Partnership owns a
beneficial interest. The books and records of the Partnership shall be reviewed
annually at the expense of the Partnership by an independent certified public
accountant selected by the General Partner, who shall prepare and deliver to the
Partnership, for filing, the appropriate federal Partnership income tax
return(s) before March 31 of each year. The General Partner shall provide each
Limited Partner with a copy of the Partnership income tax return at least ten
(10) business days prior to filing such return. The Partnership shall report its
operations for tax purposes on the accrual basis.
(b) The General Partner shall, at Partnership expense,
furnish (or request the manager of the Property to furnish) to the Partners (i)
on or before the twentieth (20th) day of each calendar quarter, an unaudited
statement setting forth and describing in reasonable detail the receipts and
23
expenditures of the Partnership during the preceding calendar quarter and
comparing the results of operations of the Partnership for such calendar quarter
and for the year to date to the appropriate Operating Budget, (ii) on or before
one hundred twenty (120) days after the end of each fiscal year, a balance sheet
of the Partnership dated as of the end of such fiscal year, a statement of the
Partners' Capital Accounts and Capital Contribution Balances, a statement of
Distributable Cash, and a statement setting forth the Profits and Losses for
such fiscal year, audited by an independent firm of certified public accountants
as determined by Approval by Partnership Vote, and (iii) from time to time, all
other information relating to the Partnership and the business and its affairs
reasonably requested by any Partner.
10.3 ACCOUNTS. All funds of the Partnership shall be deposited in its
name in an account or accounts maintained at a bank designated by the General
Partner or with an agent designated by the General Partner. Checks shall be
drawn upon the Partnership account or accounts only for purposes of the
Partnership and shall be signed by the General Partner.
10.4 FEDERAL TAX ELECTIONS. All elections for federal tax purposes,
including but not limited to an election to adjust the basis of the assets of
the Partnership pursuant to Section 754 of the Code, and the adoption of
accelerated depreciation or cost recovery methods required or permitted to be
made by the Partnership under the Code shall be determined by Approval by
Partnership Vote.
10.5 TAX AUDITS. The General Partner shall be designated as the "tax
matters partner" of the Partnership as defined in Sections 6221 ET SEQ, of the
Code and, in the event of an audit of the Partnership by the Internal Revenue
Service ("IRS"), the General Partner, at Partnership expense, shall have the
exclusive right to conduct all negotiations with the Internal Revenue Service on
behalf of the Partnership, and the attorneys and accountants selected by the
Partners to conduct such negotiations are hereby specifically authorized by the
Partners to act on behalf of the Partnership in such negotiations, and each
Partner will execute such further authority as the IRS may require to permit the
General Partner and its selected attorneys and accountants to so represent the
Partners; provided the General Partner shall not take any action take any action
contemplated by Sections 6222 through 6232 of the Code without prior Approval by
Partnership Vote. This provision is not intended to authorize the General
Partner to take any action left to the determination of an individual Partner
under Sections 6222 through 6232 of the Code.
ARTICLE XI.
AMENDMENT
11.1 AUTHORITY TO AMEND. Except as provided in Section 11.2 below,
this Agreement may only be altered or amended by a written instrument signed by
the General Partner and Limited Partners holding a Majority in Interest of the
Residual Percentages, provided that no amendment may reduce a Partner's economic
interest in the Partnership without the Partner's prior written consent.
11.2 AMENDMENTS BY GENERAL PARTNER WHICH REQUIRE NO APPROVAL.
Notwithstanding Section 11.1 hereof, the following amendments to this Agreement
may be made by the General Partner, without approval of the Limited Partners:
(a) a clarification which does not change the substance
hereof;
(b) a change in the name of the Partnership;
(c) a change in the name and address of a Partner designated
in Article II pursuant to a request from that Partner;
24
(d) a modification which is necessary or appropriate, in the
opinion of counsel for the Partnership, to satisfy the requirements of the Code
with respect to partnerships or of any federal or state securities laws or
regulations, provided such amendment does not adversely affect the economic
interests of any Limited Partner without that Limited Partner's consent.
ARTICLE XII.
DISSOLUTION OF THE PARTNERSHIP
12.1 DISSOLUTION.
(a) It is the intention of the Partners that the Partnership
shall be continued by the Partners, or those remaining, pursuant to the
provisions of this Agreement, notwithstanding the occurrence of any event which
would otherwise result in a dissolution of the Partnership pursuant to the law
of the State of Texas, and no Partner shall be released or relieved of any duty
or obligation hereunder by reason of any such dissolution; provided, however,
that the Partnership shall be terminated, its affairs wound up and its property
and assets distributed on the earlier of:
(i) expiration of the Partnership term as provided
in Section 1.5 hereof;
(ii) the written consent of the General Partner and
the Limited Partners holding a Majority in Interest of the Residual Percentages;
(iii) an Event of Withdrawal of a General Partner (as
defined in Article VIII hereof) unless at the time of the Event of Withdrawal,
there is at least one (1) other General Partner or the provisions of Section
12.1(b) below are satisfied;
(iv) the disposition (including condemnation or
casualty loss) of all or substantially all of the property and assets of the
Partnership and receipt of the proceeds from such sale of other disposition
(except under circumstances where (x) all or a portion of the purchase price is
payable after the closing of the sale or other disposition, or (y) the
Partnership retains a material economic or ownership interest in the entity to
which all or substantially all of its assets are Transferred); or
(v) dissolution by law or appropriate judicial
decree.
(b) Upon the occurrence of any Event of Withdrawal of a
General Partner at a time when there is no other General Partner, the
Partnership shall be continued if, within a period of ninety (90) days from the
date of such occurrence, all other Partners agree in writing that the
Partnership shall be continued and designate one or more individuals or legal
entities to be admitted to the Partnership as a General Partner, which agreement
shall be effective as of the date of the occurrence of the applicable Event of
Withdrawal. Any such individual or legal entity shall, upon admission to the
Partnership, succeed to all of the rights and powers of a General Partner
hereunder.
(c) Dissolution of the Partnership shall be effective on
December 31, 2053 or the day on which the event occurs giving rise to the
dissolution, but the Partnership shall not terminate until the Certificate shall
have been canceled and the assets of the Partnership shall have been distributed
as provided below. Notwithstanding the dissolution of the Partnership, prior to
the termination of the Partnership as aforesaid, the business of the Partnership
and the affairs of the Partners shall continue to be governed by this Agreement.
25
(d) The bankruptcy, insolvency, dissolution, or adjudication
of incompetency of a Limited Partner shall not cause the dissolution of the
Partnership. In the event of the bankruptcy, or incompetency of a Limited
Partner, its administrators or representatives ("Successor") shall have the same
rights that such Limited Partner would have had if it had not become bankrupt,
except that, in the event of bankruptcy, such Successor shall have no right to
participate in the management of the Partnership or vote on any Partnership
matter unless such Successor is admitted to the Partnership as a Limited Partner
pursuant to Section 8.5, and the interest of such Limited Partner in the
Partnership shall, until the termination of the Partnership, otherwise be
subject to the terms, provisions and conditions of this Agreement as if such
Limited Partner had not become bankrupt. In the event of any other withdrawal of
a Limited Partner, the Limited Partner shall only be entitled to Partnership
distributions distributable to it but not actually paid to it prior to such
withdrawal and shall not have any right to have its interest in the Partnership
purchased or paid for.
(e) Notwithstanding anything in this Agreement to the
contrary, upon a sale of all or substantially all of the assets of the
Partnership in a single transaction (a "SINGLE SALE TRANSACTION") where all or
any portion of the consideration payable to the Partnership is to be received by
the Partnership more than ninety (90) days after the date on which such Single
Sale Transaction occurs, the Partnership shall continue for purposes of
collecting the deferred payments and making distributions to the Partners. In
such event (i) gain recognized and cash distributed in any year as a result of
such Single Sale Transaction shall be allocated and distributed among the
Partners in the same proportion as such gain and cash would have been allocated
and distributed were the entire gain resulting from such Single Sale Transaction
required to be recognized for Federal income tax purposes in the year in which
such Single Sale Transaction occurred; and (ii) income attributable to interest
on deferred payments shall be allocated among, and such interest shall be
distributed to, the Partners as if the deferred payment obligations received by
the Partnership had been distributed to the Partners pursuant to Section 6.1.
12.2 WIND-UP OF AFFAIRS. As expeditiously as possible following the
occurrence of an event giving rise to a termination of the Partnership pursuant
to Section 12.1 above, the General Partner(s) or, if none, all of the Limited
Partners or a liquidator appointed by all of the Limited Partners (the General
Partner, Limited Partners or such liquidator, as the case may be, is referred to
here as the "LIQUIDATOR") shall liquidate the assets of the Partnership, apply
and distribute the proceeds thereof as contemplated by this Agreement and cause
the cancellation of the Certificate. As soon as possible after the dissolution
of the Partnership, a full account of the assets and liabilities of the
Partnership shall be taken, and a statement shall be prepared by the independent
accountants then acting for the Partnership setting forth the assets and
liabilities of the Partnership. A copy of such statement shall be furnished to
each of the Partners within ninety (90) days after such dissolution. Thereafter,
the Liquidator shall wind up the affairs of the Partnership and distribute the
Partnership assets in the following order of priority:
(a) to creditors (including Partners who are creditors) in
satisfaction of the liabilities of the Partnership, other than liabilities to
existing and former Partners for distributions from the Partnership;
(b) to the establishment of any reserves which the
Liquidator deems reasonably necessary for any contingencies or unforeseen
liabilities or obligations of the Partnership. Such reserves shall be paid over
by the Liquidator to an escrow agent or shall be held by the Liquidator for the
purpose of disbursing such reserves in payment of any of such contingencies. At
the expiration of such period as the Liquidator deems advisable, the balance
thereof shall be distributed in the manner and order provided in this Section;
(c) to existing and former Partners in satisfaction of any
liabilities to them, if any, for distributions from the Partnership;
26
(d) to Partners in accordance with Section 6.1 above.
Notwithstanding anything to the contrary, in the event the Partnership
is "liquidated" within the meaning of Regulations Section 1.704-1(b)(2)(ii)(g)
and an event described in Section 12.1(a) shall have occurred, liquidating
distributions shall be made pursuant to this Section 12.2 by the end of the
taxable year in which the Partnership is liquidated, or, if later, within ninety
(90) days after the date of such liquidation. Distributions pursuant to the
preceding sentence may be made to a trust for the purpose of an orderly
liquidation of the Partnership by the trust in accordance with the Act.
12.3 COMPLIANCE WITH TREASURY REGULATIONS. It is the intent of the
Partners that the allocations provided in Section 7.1 result in distributions
required pursuant to Section 12.2(d) being in accordance with positive Capital
Accounts as provided for in the Treasury Regulations under Code Section 704(b).
However, if after giving hypothetical effect to the allocations required by
Section 7.1, the Capital Accounts of the Partners are in such ratios or balances
that distributions pursuant to Section 12.2(d) would not be in accordance with
the positive Capital Accounts of the Partners as required by the Treasury
Regulations under Code Section 704(b), such failure shall not affect or alter
the distributions required by Section 12.2(d). Rather, the liquidator will have
the authority to make other allocations of Profits and Losses (or items thereof)
among the Partners which, to the extent possible, will result in the Capital
Accounts of each Partners having a balance prior to distribution equal to the
amount of distributions to be received by such Partners pursuant to Section
12.2(d).
12.4 NO DEFICIT CAPITAL ACCOUNT OBLIGATION. Notwithstanding anything
else to the contrary in this Agreement, upon a liquidation within the meaning of
Section 1.704-1(b)(2)(ii)(g) of the Regulations, if any Partner has a deficit
Capital Account (after giving effect to all contributions, distributions,
allocations and other Capital Account adjustments for all taxable years,
including the year during which such liquidation occurs), such Partner shall
have no obligation to make any Capital Contribution, and the negative balance of
such Partner's Capital Account shall not be considered a debt owed by such
Partner to the Partnership or to any other Person for any purpose whatsoever.
12.5 DISTRIBUTION IN KIND. If any assets of the Partnership are to be
distributed in kind, the net fair market value of such assets as of the date of
dissolution shall be determined by independent appraisal or by agreement of the
Partners. Prior to distribution, such assets shall be deemed to have been sold
for their fair market values and the Capital Accounts of the Partners shall be
adjusted pursuant to the terms of this Agreement to reflect the allocation of
gain or loss which would have resulted from such deemed sale.
12.6 CANCELLATION OF CERTIFICATE. Upon the dissolution and the final
liquidation of the Partnership, there shall be filed for record as provided by
Texas law a Certificate of Cancellation executed by the General Partner.
12.7 RETURN OF CONTRIBUTION NONRECOURSE TO OTHER PARTNERS. Except as
provided by law or as expressly provided in this Agreement, upon dissolution
each Partner shall look solely to the assets of the Partnership for the return
of its Capital Contribution. If the Partnership property remaining after the
payment or discharge of the debts and liabilities of the Partnership is
insufficient to return the cash contribution of one or more Partners, such
Partner or Partners shall have no recourse against any other Partner.
27
ARTICLE XIII.
MISCELLANEOUS PROVISIONS
13.1 NOTICES. Except as may be otherwise specifically provided in
this Agreement, all notices required or permitted hereunder shall be in writing
and shall be deemed to be delivered on the earlier of (i) when delivered in
person, or (ii) when delivered by commercial courier such as Federal Express,
Express Mail or other overnight delivery service where delivery is evidenced by
written receipt, addressed to the appropriate party at the addresses set forth
in Article II, or such other address of the party as may have been changed as
provided herein. Any party may change the address to which notices will be given
by giving notice of such change to the other parties, in accordance with the
provisions of this Section 14.1.
13.2 GOVERNING LAW. This Agreement shall be construed under and in
accordance with the laws of the State of Texas, excluding any conflicts of law
rule or principle which might refer such construction to the laws of another
state or country.
13.3 EXECUTION OF OTHER AGREEMENTS. The parties hereto covenant and
agree that they will execute such other further instruments and documents as are
or may become necessary or convenient to effectuate and carry out the
Partnership created by this Agreement.
13.4 NO ACTION FOR PARTITION. No Partner shall be entitled to bring
an action for partition against the Partnership, and each Partner hereby
irrevocably waives, during the term of the Partnership and during the period of
its liquidation following any dissolution, any right to maintain an action for
partition with respect to any of the assets of the Partnership.
13.5 PARAGRAPH HEADINGS. The headings used in this Agreement are used
for administrative purposes only and do not constitute substantive matter to be
considered in construing the terms of this Agreement.
13.6 BINDING EFFECT AND BENEFIT. This Agreement is binding on, and
shall inure to the benefit of, all of the parties hereto and to their respective
heirs, executors, administrators, legal representatives, and successors and
assigns where permitted by this Agreement.
13.7 SEVERABILITY. In case any one or more of the provisions
contained in this Agreement shall for any reason be held to be invalid, illegal
or unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision hereof, and this Agreement shall be
construed as if such invalid, illegal or unenforceable provision had never been
contained herein.
13.8 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, all of which together shall constitute a single contract, and each
of such counterparts shall for all purposes be deemed to be an original. This
Agreement may be executed and delivered by fax (telecopier); any original
signatures that are initially delivered by fax shall be physically delivered
with reasonable promptness thereafter. This Agreement shall become binding when
one or more counterparts hereof, individually or taken together, shall bear the
signatures of all of the parties reflected hereon as the signatories.
13.9 GENDER. Wherever the context so requires, all words herein in
the neuter gender shall be deemed to include the feminine or masculine genders,
and vice versa, all singular words shall include the plural, and all plural
words shall include the singular.
28
13.10 ENTIRE AGREEMENT. This Agreement, together with all Exhibits
hereto and all other documents referred to herein, constitutes the entire
agreement among the parties hereto with respect to the subject matter hereof,
and supersedes all prior and contemporaneous agreements, understanding,
inducements or conditions, express or implied, oral or written.
13.11 VALIDITY. In the event that all or any portion of any provision
of this Agreement shall be held to be invalid, the same shall not affect in any
respect whatsoever the validity of the remainder of this Agreement.
13.12 INDULGENCES, ETC. Neither the failure nor any delay on the part
of any party hereto to exercise any right, remedy, power or privilege under this
Agreement shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege preclude any other or further
exercise of the same or any other right, remedy, power or privilege; nor shall
any waiver of any right, remedy, power or privilege with respect to any
occurrence be construed as a waiver of such right, remedy, power or privilege
with respect to any other occurrence. No waiver shall be effective unless it is
in writing and signed by the party asserted to have granted such waiver.
13.13 REMEDIES. In the event of any breach of this Agreement by any
Partner or default by any Partner in connection with performing any obligation
of such Partner under this Agreement, the Partnership's and the non-defaulting
Partner's rights and remedies contained herein or in any other agreement shall
be cumulative and shall not be exclusive of any other rights or remedies which
the Partnership or the non-defaulting Partner may have at law or in equity.
13.14 INTERPRETATION. No provision of this Agreement is to be
interpreted for or against either party because that party or that party's legal
representative drafted such provision.
13.15 TIME OF ESSENCE. TIME IS OF THE ESSENCE in connection with this
Agreement.
13.16 ALTERNATIVE DISPUTE RESOLUTION. If a dispute, controversy or
claim (whether based upon contract, tort, statute, common law or otherwise)
(collectively a "DISPUTE") arises from or relates directly or indirectly to the
subject matter hereof, and if the Dispute cannot be settled through direct
discussions, the parties hereto shall first endeavor to resolve the Dispute by
participating in at least eight (8) hours of mediation administered by the
American Arbitration Association under its Commercial Mediation Rules before
filing a lawsuit to determine the resolution of such Dispute.
13.17 NOTICE OF INDEMNIFICATION. THE PARTIES TO THIS AGREEMENT HEREBY
ACKNOWLEDGE AND AGREE THAT THIS AGREEMENT CONTAINS CERTAIN INDEMNIFICATION
PROVISIONS PURSUANT TO SECTION 5.2.
ARTICLE XIV.
SECURITIES LAW CONSIDERATIONS
14.1 NO REGISTRATION/RESTRICTION ON SALE. THE PARTNERSHIP INTERESTS
HAVE NOT BEEN REGISTERED WITH THE UNITED STATES SECURITIES AND EXCHANGE
COMMISSION UNDER THE SECURITIES ACT OF 1933, NOR HAVE THEY BEEN REGISTERED WITH
THE SECURITIES COMMISSION OF ANY OTHER APPLICABLE STATE, INCLUDING WITHOUT
LIMITATION THE STATE OF TEXAS. THE PARTNERSHIP INTERESTS MAY BE ACQUIRED FOR
INVESTMENT PURPOSES ONLY AND MAY NOT BE OFFERED FOR SALE, PLEDGED, HYPOTHECATED,
SOLD OR TRANSFERRED EXCEPT IN COMPLIANCE WITH THE
29
TERMS AND CONDITIONS OF THIS AGREEMENT AND IN A TRANSACTION WHICH IS EITHER
EXEMPT FROM REGISTRATION UNDER SUCH ACTS OR PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER SUCH ACTS.
14.2 COMPLIANCE WITH SECURITIES LAWS. The Limited Partners
acknowledge and confirm that their Limited Partnership interests have not been
registered under any federal or state securities laws by virtue of exemptions
from the registration provisions thereof and consequently cannot be sold except
pursuant to appropriate registration or exemption from registration as
applicable. No Transfer of all or any part of a Limited Partnership interest
(except a Transfer upon the death, incapacity or bankruptcy of a Limited Partner
to his personal representative and beneficiaries), including, without
limitation, any Transfer of a right to distributions, profits and/or losses to a
person who does not become a Partner, may be made unless the Partnership is
provided with an opinion of counsel acceptable to the General Partner (both as
to the identity of the counsel and the substance of the opinion) to the effect
that such offer or assignment (a) may be effected without registration under the
Securities Act of 1933, as amended, or the Investment Company Act of 1940, as
amended, and (b) does not violate any applicable federal or state securities
laws (including any investment suitability standards) applicable to the
Partnership or the General Partner.
14.3 ACCESS TO INFORMATION. Each of the Limited Partners represents
to the General Partner and the Partnership that before determining to enter into
this Agreement and to invest in the Partnership, each Limited Partner made an
independent investigation into the Partnership and the General Partner and that
it received whatever information it deemed necessary or relevant in order to
decide whether to enter into this Agreement or invest in the Partnership. Each
Limited Partner acknowledges that the financial materials provided to the
Limited Partners are only estimates of expected future operations based on
assumptions about future markets and there is no assurance that such projections
will be realized.
14.4 AMENDMENTS TO AGREEMENT. Notwithstanding anything contained
herein to the contrary, in the event that legal counsel for BH Fund reasonably
determines that an amendment to this Agreement is necessary or advisable in
order for this Agreement to comply with the limited partnership agreement of BH
Fund, applicable securities laws, or NASAA Guidelines, then each Partner shall,
within ten (10) days after request from BH Fund, execute such an amendment;
provided, however, that no such amendment may reduce a Partner's economic
interest in the Partnership without the Partner's prior written consent.
[SIGNATURE PAGES FOLLOW]
30
IN WITNESS WHEREOF, the parties hereto have executed this Agreement of
Limited Partnership as of the date first above written.
GENERAL PARTNER:
BEHRINGER HARVARD 1221 XXXX XX, LLC,
a Texas limited liability company
By:____________________________________
Name:__________________________________
Its:___________________________________
[This space intentionally left blank]
31
LIMITED PARTNERS:
BEHRINGER HARVARD SHORT-TERM
OPPORTUNITY FUND I, LP, a Texas
limited partnership
By: Behringer Harvard Advisors II LP,
a Texas limited partnership, its
General Partner
By: Harvard Property Trust, LLC
Its General Partner
By:_________________________
Name:_______________________
Title:______________________
[This space intentionally left blank]
32
REALTY AMERICA GROUP (1221 XXXX ROAD),
LP, a Texas limited partnership
By: Realty America Group Investments,
LLC, a Texas limited liability
company
Its General Partner
By:_______________________________
Name: Xxxx X. Xxxxxx, III
Title: Member
[This space intentionally left blank]
33
Exhibit A
---------
Legal Description of Property
TRACT I:
Being all of that certain tract of land situated in the Xxxxxx XxXxxxx Survey,
Abstract No. 553, Collin County, Texas, as described in deed to Premier
Wholesale Club, Inc., and recorded in Volume 2267, Page 000, Xxxx Xxxxxxx,
Xxxxxx Xxxxxx, Xxxxx, also being all of Xxx 0, Xxxxx 0, XXXX/Xxxx Xxxx Xxxxxxxxx
Addition, an addition to the City of Plano, as recorded in Cabinet F, Page 621,
Plat Records, Collin County, Texas, and as shown by replat recorded in Cabinet
G, Page 97, said Plat Records, and being more particularly described by metes
and bounds as follows:
BEGINNING at the Southwest corner of the remainder of that certain tract of land
as described in deed to X.X. Xxxx and Co. and recorded in Volume 1958, Page 462,
of said Deed Records also being on the north line of that certain tract of land
as described in deed to Westwind Properties, Inc. and recorded in Volume 1803,
Page 534, of said Deed Records;
THENCE North 89 degrees 26 minutes 36 seconds West, 554.28 feet along said
northerly line to a one inch iron rod, found, being the northwesterly corner of
said Westwind tract, also being on the easterly right-of-way line of Commerce
Street (a 60 foot wide public right-of-way);
THENCE North 00 degrees 54 minutes 00 seconds East, 477.28 feet along said
easterly right-of-way line to a one inch iron rod found, being the southwesterly
corner of the remainder of that certain tract of land as described in deed to
Xxxxxxx Xxxxxxx and recorded in Volume 1007, Page 184, of said Deed Records;
THENCE South 89 degrees 06 minutes 00 seconds East, 800.00 feet along the
southerly line of said Gartner tract to an "X" cut set in concrete being the
southeasterly corner of said Gartner tract, also being on the westerly
right-of-way line of Xxxx Road (a 130' right-of-way);
THENCE South 00 degrees 23 minutes 00 seconds West, 212.48 feet along said
westerly right-of-way line to an "X" cut found, being the northeasterly corner
of the aforementioned Xxxx tract;
THENCE North 89 degrees 06 minutes 00 seconds West, 247.65 feet along the
northerly line of said Xxxx tract to a one inch iron rod, found, being the
northwesterly corner of said Xxxx tract;
THENCE South 00 degrees 54 minutes 00 seconds West, 261.49 feet along the
westerly line of said Xxxx tract to the POINT OF BEGINNING and containing
316,036 square feet or 7.255 acres of land, more or less.
TRACT II:
Nonexclusive EASEMENT for ingress and egress as created in Easement Agreement,
dated December 3, 1985, filed December 6, 1985, recorded in Volume 2267, Page
000, Xxxx Xxxxxxx Xxxxxx Xxxxxx, Xxxxx.
34
TRACT III:
Nonexclusive EASEMENT for ingress and egress as created in Easement Agreement,
dated December 14, 1985, filed December 17, 1985, recorded in Volume 2273, Page
000, Xxxx Xxxxxxx, Xxxxxx Xxxxxx, Xxxxx.
TRACT IV:
BEING a tract of land situated in the XXXXXX XXXXXXX SURVEY, ABSTRACT XX. 000,
Xxxx xx Xxxxx, XXXXXX Xxxxxx, Xxxxx, and being that same tract of land conveyed
under County Clerk No. 00-0000000, Land Records of COLLIN County, Texas, and
being Xxx 0, Xxxxx X xx xxx Xxxxxxxxxx Xxxx of COLLIN EQUITIES ADDITION, an
Addition to the City of Plano, Texas, as recorded in Cabinet K. Page 361, Plat
Records of COLLIN County, Texas, and being more particularly described as
follows:
BEGINNING at a 1/2 inch iron rod set for the Southeast corner of West Plano
Medical Center as recorded in Cabinet E, Page 103, and also being in the West
line of Commerce Drive (a 60 foot right of way) and also being the most Easterly
Northeast Corner of Collin Equities Addition, Block A, Lot 2;
THENCE South 00 degrees 54 minutes 00 seconds West, along the West line of
Commerce Drive, a distance of 510.00 feet to a 1/2 inch iron set for a corner,
said point also being the Northeast corner of Xxxxxxxxx Business Park as
recorded in Cabinet F, Page 92, Plat Records of COLLIN County, Texas;
THENCE North 89 degrees 06 minutes 00 seconds West, along the North line of said
Xxxxxxxxx Business Park, a distance of 430.00 feet to a 1 inch iron rod found
for corner;
THENCE North 00 degrees 53 minutes 20 seconds East, a distance of 510.00 feet to
a 1 inch iron rod found for corner, said point also being in the South line of
the aforementioned West Plano Medical Center, an Addition to the City of Plano;
THENCE South 89 degrees 06 minutes 00 seconds East, a distance of 430.10 feet to
the POINT OF BEGINNING AND CONTAINING 5.035 acres of land, more or less.
35
Exhibit B
---------
Amended and Restated Property Management and Leasing Agreement
[See Attached]
36
Exhibit C
---------
Initial Capital Contributions
Name of Partner Initial Capital Contribution
--------------- ----------------------------
Behringer Harvard 1221 Xxxx XX, LLC $ 100
Behringer Harvard Short-Term Opportunity $4,499,900
Fund I LP
Realty America Group (1221 Xxxx Road), L.P. $ 500,000
37
