EXHIBIT 10.17
AGREEMENT OF LIMITED PARTNERSHIP OF
BEHRINGER HARVARD PLAZA XXXXXXXX XX
THIS AGREEMENT OF LIMITED PARTNERSHIP (the "AGREEMENT") is made and
entered into effective as of the ___ day of July, 2004, by and among BEHRINGER
HARVARD PLAZA XXXXXXXX XX, LLC, a Texas limited liability company (the "GENERAL
PARTNER"), BEHRINGER HARVARD SHORT-TERM OPPORTUNITY FUND I LP, a Texas limited
partnership, and XXXXXXX PLAZA, LTD., a Texas limited partnership (each a "CLASS
A LIMITED PARTNER"), and DUNHILL PARTNERS, INC., a Texas corporation (the "CLASS
B LIMITED PARTNER").
ARTICLE I.
FORMATION, NAME, PRINCIPAL PLACE OF BUSINESS - AGENT
PURPOSES, TERM AND DEFINITIONS
1.1 FORMATION. The Partnership was formed by filing the Certificate
under and pursuant to the TRLPA (as hereinafter defined).
1.2 NAME. The business of the Partnership shall be conducted under the
name of "Behringer Harvard Plaza Xxxxxxxx XX."
1.3 PARTNERSHIP OFFICE, REGISTERED OFFICE AND REGISTERED AGENT. The
Partnership shall maintain its principal office in the State of Texas at 0000
Xxxxx Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000, or at such other place
as the General Partner, subject to approval by a Partnership Vote, may from time
to time designate. The Registered Office in the State of Texas is 0000 Xxxxx
Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxx, 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, 2053, 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 General Partner and/or the Class A Limited Partners (as the case may be)
under Section 3.2.
"ADDITIONAL CAPITAL CONTRIBUTIONS ACCOUNT" means an account
maintained for the General Partner and each Class A Limited Partner 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.
"ALTERNATE ASSET MANAGEMENT FEE" has the meaning set forth in
Section 4.8(c).
"ASSET MANAGEMENT FEE" has the meaning set forth in Section 4.8(c).
"ASSETS" means all of the assets of the Partnership (including,
without limitation, the Property).
"BH PARTNERS" means Behringer Plaza Xxxxxxxx XX, LLC, a Texas
limited liability company, and Behringer Harvard Short-Term Opportunity Fund I,
LP, a Texas limited partnership.
"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 (other than
the Class B Limited 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, dated June 2, 2004.
"CLASS A LIMITED PARTNER" means Behringer Harvard Short-Term
Opportunity Fund I LP, a Texas limited partnership, Xxxxxxx Plaza, Ltd., a Texas
limited partnership, and any other Person who has been admitted as a Class A
Limited Partner in the Partnership pursuant to the provisions of this Agreement.
"CLASS B LIMITED PARTNER" means Dunhill Partners, Inc., a Texas
corporation, and any other Person who has been admitted as a Class B Limited
Partner in the Partnership pursuant to the provisions of this Agreement.
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"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 a 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 a Partnership Vote, deems reasonably necessary to the proper operation of the
Partnership's business.
"DPMSI" means Dunhill Property Management Services, Inc., a Texas
corporation.
"DUNHILL PARTNERS" means Xxxxxxx Plaza, Ltd., a Texas limited
partnership, and Dunhill Partners, Inc., a Texas corporation.
"GENERAL PARTNER" means Behringer Harvard Plaza Xxxxxxxx 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 a 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 a
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 a 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 a 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 a
Partnership Vote; and
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(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 a 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 a 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. After the Gross Asset Value of an asset
has been adjusted under clause (a), clause (b), or clause (d) above, Gross Asset
Value will be adjusted by the Depreciation taken into account with respect to
the asset for purposes of computing Profits and Losses.
"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
General Partner and/or the Class A Limited Partners (as the case may be) under
Section 3.1.
"INITIAL CAPITAL CONTRIBUTION ACCOUNT" means, as to the General
Partner and the Class A Limited Partners, (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 a 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 that certain Leasing Agreement by and
between the Partnership and Dunhill Partners, Inc., a Texas corporation, in the
form attached hereto as EXHIBIT D.
"LIMITED PARTNERS" means the Class A Limited Partners, the Class B
Limited Partner 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.
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"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 loan encumbering
the Property in the original principal amount of $10,450,000.00, as evidenced by
that certain Promissory Note dated March 30, 2001 (the "Note"), made by
Aristocrat Fund IV L.P., a Texas limited partnership ("MAKER"), payable to
Xxxxxx Brothers Bank, FSB, a federal stock savings bank ("ORIGINAL LENDER"), and
secured by that certain Deed of Trust and Security Agreement made by Maker in
favor of Barnet X. Xxxxxxx, Xx., as Trustee, for the benefit of Original Lender,
dated of even date with the Note and recorded in the Real Property Records of
Dallas County, Texas, which Mortgage Loan has been assumed by the Partnership
pursuant to a Loan Assumption and Substitution Agreement dated on or about the
date hereof by and among the Partnership, Maker and the current holder of the
Mortgage Loan.
"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).
"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 approved in writing by a Partnership Vote, 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 a 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
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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 CONSENT" means the consent of the General Partner and all
of the Class A Limited 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.
"PARTNERSHIP" means Behringer Harvard Plaza Xxxxxxxx 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 General Partner and the
Class A Limited Partners. A Partnership Vote may be conducted at a meeting of
the General Partner and the Class A 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 Class A 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 Class A
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 Class A 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.
All matters requiring a Partnership Vote shall require the unanimous consent (or
deemed consent) of the General Partner and each Class A Limited Partner in order
to be approved by a Partnership Vote. If a written consent or consents setting
forth the matter to be determined is signed by the General Partner and the Class
A Limited Partners, such matter shall be deemed to have been approved by
Partnership Vote.
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The Class B Limited Partner shall have no right to participate in a Partnership
Vote or to otherwise vote with respect to matters of the 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;
(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.
"PROPERTY MANAGEMENT SUBCONTRACT" means that certain Property
Management Subcontract, by and between HPT and Dunhill Property Management
Services, Inc., a Texas corporation, in the form attached hereto as EXHIBIT C.
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"PURCHASE AGREEMENT" means that certain Purchase and Sale Agreement
by and between Xxxxxxx Plaza, Ltd., a Texas limited partnership, as purchaser,
and Aristocrat Fund IV, L.P., a Texas limited partnership, as seller, dated as
of February 27, 2004, as amended by that certain First Amendment to Purchase and
Sale Agreement, dated as of March 25, 2004.
"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
the approval of the Class A Limited Partners.
"RESIDUAL PERCENTAGE" means (a) as to the General Partner, one
percent (1%), (b) as to Behringer Harvard Short-Term Opportunity Fund I LP,
eighty six and fifty one-hundredths percent (84.71%), and (c) as to Xxxxxxx
Plaza, Ltd., fourteen and twenty-nine one hundredths percent (14.29%). The Class
B Limited Partner shall have no Residual Percentage.
"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.
"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.
"TRLPA" means the Texas Revised Limited Partnership Act, as it may
be amended from time to time.
ARTICLE II.
PARTNERS
2.1 GENERAL PARTNER.The name and address of the General Partner is as
follows:
NAME ADDRESS
---- -------
Behringer Harvard Plaza Xxxxxxxx XX, LLC 0000 Xxxxx Xxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
Attn: Chief Legal Officer
2.2 CLASS A LIMITED PARTNERS.The name and address of the Class A Limited
Partners are as follows:
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NAME ADDRESS
---- -------
Behringer Harvard Short-Term Opportunity 0000 Xxxxx Xxxxxxxx Xxxxxxx
Fund I LP Xxxxx 000
Xxxxxx, Xxxxx 00000
Attn: Chief Legal Officer
Xxxxxxx Plaza, Ltd. 0000 Xxxxxxxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
Attn: Xxxxxxx X. Xxxxxxxxxx
2.3 CLASS B LIMITED PARTNER.The name and address of the Class B Limited
Partner is as follows:
NAME ADDRESS
---- -------
Dunhill Partners, Inc. 0000 Xxxxxxxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
Attn: Xxxxxxx X. Xxxxxxxxxx
ARTICLE III.
CAPITAL
3.1 INITIAL CAPITAL CONTRIBUTIONS. The Partners have made the following
Initial Capital Contributions:
PARTNER INITIAL CAPITAL CONTRIBUTION
------- ----------------------------
GENERAL PARTNER:
Behringer Harvard Plaza $10.00
Xxxxxxxx XX, LLC
CLASS A LIMITED PARTNERS:
Behringer Harvard Short-Term $3,000,000.00
Opportunity Fund I, LP
Xxxxxxx Plaza, Ltd. 500,000.00 and its rights and
obligations under the
Purchase Agreement
CLASS B LIMITED PARTNER:
Dunhill Partners, Inc. $0.00
3.2 ADDITIONAL CAPITAL CONTRIBUTIONS.
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(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 may send the Class A Limited Partners written notice ("ADDITIONAL
CAPITAL NOTICE") requesting that the Class A 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 Class A Limited Partner shall be
obligated to make an Additional Capital Contribution equal to the product of its
Residual Percentage and the amount of the Cash Needs; PROVIDED, HOWEVER, that
without approval by a Partnership Vote, the aggregate amount of the Cash Needs
for which Additional Capital Contributions may be requested by the General
Partner pursuant to this Section 3.2 shall not exceed Three Hundred Thousand
Dollars ($300,000.00). 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 Class 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:
(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.
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(d) In addition to, or in lieu of, requesting Additional Capital
Contributions to the Partnership pursuant to Section 3.2(a) above, the General
Partner, or any other Partner upon request by the General Partner, may lend or
advance money to the Partnership to pay Operating Expenses, provided the
financing terms are 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.
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 a Partnership Vote. A Partner's interest in the Partnership may not
be redeemed or purchased by the Partnership without the prior approval by a
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
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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.
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 a Partnership Vote pursuant to
Section 4.3 of this Agreement:
(a) to take actions normal or customary for the owner of businesses
similar to that operated by the Partnership;
(b) to perform any and all acts necessary or appropriate in
connection with the business of the Partnership;
(c) to procure and maintain appropriate insurance covering the
property of the Partnership;
(d) to take and hold all property and assets of the Partnership,
real, personal and mixed, in the name of the Partnership;
(e) 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; and
(f) 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 a Partnership
Vote. All Major Decisions shall be made by the General Partner and the Class A
Limited 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);
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(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 on an
Operating Budget therefor (the "105% LIMITATION"); provided, that the General
Partner may (without the prior approval of a 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
$50,000 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) 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 expressly authorized or approved pursuant to the
terms of this Agreement;
(g) any act in contravention of this Agreement;
(h) any act which would make it impossible to carry on the ordinary
business of the Partnership;
(i) any confession of a judgment against the Partnership in excess
of $25,000; or
(j) 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;
(k) 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;
(l) any admission of any new Partner to the Partnership;
(m) causing the Partnership to be admitted as a joint venturer,
partner, or member to any joint venture, partnership, limited liability company,
or any other entity, as the case may be; and
(n) any other decision or action which by the provisions of this
Agreement is required to be approved by a Partnership Vote.
4.4 OPERATING BUDGETS. The Partnership shall operate under annual
Operating Budgets which shall be prepared in accordance with the Property
Management Subcontract; provided, that if the Property Management Subcontract is
not in effect then the Operating Budgets shall be prepared by the
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General Partner and approved by a Partnership Vote. After an annual Operating
Budget has been approved, the General Partner shall implement it on behalf of
the Partnership (including in accordance with the Property Management
Subcontract) 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 Class A Limited Partners any proposed
Operating Budget for each calendar year by November 15 of the preceding calendar
year. Provided that each of the Class A 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 Class A Limited
Partners to review the Operating Budget, each Class A 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 Class A
Limited Partners. If an Operating Budget for any calendar year has not been
approved 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; PROVIDED, HOWEVER, that no payments or reimbursements
to any Partner or any of their Affiliates (other than any payments of the Asset
Management Fee and/or the Alternate Asset Management Fee, payments pursuant to
the Property Management Subcontract and the Leasing Agreement, payment of the
sales commission pursuant to Section 4.8(d), and reimbursements to the General
Partner for out-of-pocket expenses incurred in connection with the Property and
in accordance with the previous Operating Budget) nor capital expenditures
(other than deposits into Reserves) shall be made by the Partnership for that
year until an Operating Budget for such year is approved, unless otherwise
approved by a Partnership Vote.
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.
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 each of the Management Agreement, the Property
Management Subcontract, and the Leasing Agreement have been approved by a
Partnership Vote.
4.8 MANAGEMENT AND LEASING OF PROPERTY; SALES COMMISSION.
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(a) Dunhill Partners, Inc. shall be the leasing agent for the
Partnership with respect to the Property pursuant to the terms of the Leasing
Agreement, and shall receive a leasing fee from the Partnership in accordance
therewith.
(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. HPT shall subcontract with
DPMSI for DPMSI to perform management services in respect of the Property in
accordance with the Property Management Subcontract, pursuant to which DPMSI
shall receive a management fee from HPT as set forth in the Property Management
Subcontract. If the Management Agreement is terminated for any reason while the
Property Management Subcontract is still in effect, and provided that DPMSI is
not then in default under the Property Management Subcontract, the General
Partner shall either (i) cause the Partnership to contract with DPMSI to provide
property management services to the Partnership pursuant to the terms of a
management agreement the terms and conditions of which are identical to the
terms of the Management Agreement, or (ii) cause any replacement manager with
whom the Partnership contracts to perform management services in respect of the
Property to enter into a subcontract with DPMSI to perform management services
in respect of the Property, the terms and conditions of which are identical to
the terms and conditions of the Property Management Subcontract. There shall be
no lapse in the services to be provided by, or the payments to be made to, DPMSI
as a result of any termination of the Management Agreement. Nothing contained in
the foregoing provisions shall be construed to prohibit or impair any right that
HPT may have to terminate the Property Management Subcontract pursuant to the
terms of the Property Management Subcontract.
(c) The General Partner (or an Affiliate designated by the General
Partner) shall be the asset manager for the Property in the manner provided in,
and pursuant to the terms of, the Agreement of Limited Partnership of Behringer
Harvard Short-Term Opportunity Fund I LP (the "ST PARTNERSHIP AGREEMENT"), and,
accordingly, shall receive an asset management fee (the "ASSET MANAGEMENT FEE")
from the Partnership in the amount set forth in Section 12.4 of the ST
Partnership Agreement. A true and correct copy of the ST Partnership Agreement
(as same exists on the date hereof) is attached hereto as EXHIBIT E.
Notwithstanding the foregoing provisions, however, if HPT terminates the
Property Management Subcontract without cause under Section 7.2(g) of the
Property Management Subcontract, then so long thereafter as the Partnership owns
the Property, the General Partner shall cause fifty percent (50%) of the Asset
Management Fee to be paid to Dunhill Partners, Inc. The ST Partnership Agreement
shall not be amended in a manner that will impair the right of Dunhill Partners,
Inc. to share in the Asset Management Fee pursuant to the preceding sentence,
unless Dunhill Partners, Inc. gives its written consent to such amendment.
(d) Dunhill Partners, Inc. shall be entitled to act as the exclusive
listing agent in connection with any sale of the Property. Accordingly, Dunhill
Partners, Inc. 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 fee payable under Section 12.7 of the ST Partnership Agreement. In
consideration of such efforts, Dunhill Partners, Inc. shall be entitled to
receive a commission equal to one and one-half percent (1.5%) of the gross sales
proceeds received by the Partnership for the Property, payable if and when the
closing of the sale of the Property occurs.
4.9 OTHER COMPENSATION. Except as provided in this Agreement, no Partner
or its Affiliate shall be entitled to any compensation unless approved by
Partnership Vote.
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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) Each 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
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
Partner or such person, and (2) any such indemnification will only be
recoverable from the assets of the Partnership and the 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 Partner, or the withdrawal, adjudication
of bankruptcy or insolvency of the 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 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
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.
16
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; (e) true and full information regarding the amount
of cash and a description and statement of the agreed value of any other
property or services contributed by each Partner and which each Partner has
agreed to contribute in the future, and the date on which each became a Partner;
and (f) other information regarding the affairs of the Partnership to which that
Partner is entitled pursuant to the TRLPA (including all Partnership books and
records). Under no circumstances shall any information regarding the Partnership
or its business be kept confidential from any Partner.
5.5 LIABILITY TO THIRD PARTIES. Except as otherwise provided by the
TRLPA, the debts, obligations and liabilities of the Partnership, whether
arising in contract, tort, or otherwise, shall be solely the debts, obligations
and liabilities of the Partnership, and no Partner shall be obligated personally
for any such debt, obligation or liability of the Partnership solely by reason
of being a Partner.
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 otherwise approved by a Partnership
Vote), the Partnership shall distribute Distributable Cash in the following
order of priority:
(a) First, to the General Partner and the Class A Limited 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 General Partner and the Class A Limited 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 General Partner and the Class A Limited Partners,
pro rata in accordance with their Residual Percentages until the General Partner
and the Class A Limited Partners have received distributions sufficient to
provide an IRR of fifteen percent (15%) to such Partners;
(d) Next, seventy five percent (75%) to the General Partner and the
Class A Limited Partners, pro rata in accordance with their Residual
Percentages, and twenty five percent (25%) to the Class B Limited Partner, until
the General Partner and the Class A Limited Partners have received distributions
sufficient to provide an IRR of twenty percent (20%) to such Partners; and
(e) Thereafter, fifty percent (50%) to the General Partner and the
Class A Limited Partners, pro rata in accordance with their Residual
Percentages, and fifty percent (50%) to the Class B Limited Partner.
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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 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
18
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 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 approved by Partnership
Vote. Any deductions, income, gain or loss specially allocated pursuant to this
19
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 ("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
approved by Partnership Vote 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 approved
by Partnership Vote. 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 approved by
Partnership Vote, 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"):
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(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 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 (h) and (i) 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 with
the written consent of the General Partner and the approval of the Class A
Limited Partners and the General Partner pursuant to a 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;
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(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:
(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.
(a) At any time after the first (1st) anniversary of the date of
this Agreement, either (i) both the BH Partners, or (ii) both the Dunhill
Partners (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 8.6 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 8.6 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 8.6(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) Each purchasing Partner shall, within seven (7) business days
after the election or deemed election referred to in clause (a) above, make a
cash deposit equal to two and one-half percent (2.5%) of the amount of the
purchase price to be paid in accordance with clause (a) above (the "DEPOSIT").
Any cash portion of the Deposit shall be placed in an interest bearing account
at a bank mutually acceptable to the Partners and any interest on such cash or
on any certificate of deposit shall be added to,
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and constitute a portion of, the Deposit for purposes of this Section 8.6. The
closing pursuant to this Section 8.6 shall occur on the ninetieth (90th) day
after the election to purchase has been made or deemed made, or at such earlier
date as the purchasing Partners may specify on ten (10) business days prior
written notice; PROVIDED, HOWEVER, that each of the following (unless and except
to the extent waived by the purchasing Partners) shall be a condition of the
purchasing Partners' obligations to proceed with any such purchase: (i) the
Partnership shall have continued to be operated in accordance with this
Agreement and all other applicable agreements in all material respects through
the date of sale; (ii) the purchasing Partners shall have obtained all
third-party consents required in connection with such sale; (iii) the purchasing
Partners shall have obtained releases of any guaranties of indebtedness of the
Partnership executed by the selling Partners or any Affiliates of (or principals
in) the selling Partners; (iv) there shall be no suit, action or proceeding
involving the Partnership pending on the date of sale before or by any court or
governmental body seeking to restrain or prohibit, or seeking material damages
or other relief; and (v) no adverse event has occurred which has a materially
detrimental impact on the value of the Property. The Partnership shall
indemnify, defend and hold harmless the selling Partners against all liabilities
of the Partnership that arise from and after the closing. The closing shall be
held at the principal business office of the Partnership. 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 Partners,
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 Affiliated Person of
the purchasing Partner), provided, that (x) the purchasing Partners shall have
designated such nominee by written notice prior to the date of purchase, and (y)
unless the sellers shall otherwise elect, both such nominee and the purchasing
Partners shall be required to join in any indemnities required to be given
pursuant to this paragraph. In the event of the failure of the selling Partners
or any of them to proceed with the sale of their interests in the Partnership at
the closing as herein provided, the purchasing Partners shall be entitled at
their election, by written notice given to the selling Partners within ten (10)
business days after the date of such failure, either (1) to receive from the
selling Partners as liquidated damages and its exclusive remedy an amount equal
to the Deposit (together with a return of the Deposit), or (2) to pursue any and
all remedies available under this Agreement or at law or equity, including
specific performance. In the event of the failure of the purchasing Partners (or
any nominee) to proceed with the purchase of the interests in the Partnership at
the closing as herein provided, the selling Partners may elect, by written
notice given to the purchasing Partners within twenty-five (25) business days
after the date of such failure, either (p) to receive the Deposit from the bank
holding the same as liquidated damages or (q) to purchase from the purchasing
Partners their interests in the Partnership, subject to the terms and conditions
set forth herein, except that the Buy-Sell Value (used to determine the purchase
price) shall be reduced by twenty-five percent (25%). If the selling Partners
elect within the aforesaid twenty-five (25) business day period to purchase the
purchasing Partners' interests in the Partnership, the closing shall occur not
more than ninety (90) days after the election to purchase has been given, or at
such earlier date as the electing Partner may specify on five (5) business days
prior written notice.
(c) If the determination of the Buy-Sell Value produces a negative
Buy-Sell Value, and such negative Buy-Sell Value is the result of any
obligations that are recourse to the Partner whose interest is being purchased,
including, without limitation, whether such recourse arises by agreement or by
operation of law, then the selling Partners under this Section 8.6 shall pay the
amount of the negative Buy-Sell Value, to the extent caused by such recourse
obligations, to the purchasing Partner in cash at the time and place of closing
of the foregoing transaction.
8.7 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
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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 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 approved by a 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.
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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 approved by a 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 the prior
approval by a 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
Partners holding not less than one hundred percent (100%) 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;
(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.
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(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 Partners
(including the General Partner) holding not less than one hundred percent (100%)
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 Partnership's Certificate of
Limited Partnership 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.
(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.
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(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 Partnership's Certificate of Limited Partnership. 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;
(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
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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.
ARTICLE XIII.
SPECIAL PURPOSE ENTITY PROVISIONS
13.1 GOVERNING PROVISIONS. Notwithstanding anything to the contrary
contained in this Agreement, for so long as the Mortgage Loan remains
outstanding, in the event of any conflict between the provisions contained in
this Article XIII and the other provisions of this Agreement or any provision in
the Certificate, the provisions contained in this Article XIII shall control and
govern.
13.2 PROHIBITED ACTIVITIES. For so long as the Mortgage Loan remains
outstanding: (a) the Partnership shall not incur, assume, or guaranty any other
indebtedness except for unsecured trade and operational indebtedness incurred in
the ordinary course of business with trade creditors that is less than $10,000
and paid within sixty (60) days after the date first incurred; (b) the
Partnership shall not dissolve or liquidate, consolidate or merge with or into
any other entity or convey or transfer its properties and assets substantially
as an entirety to any entity; (c) the Partnership will not voluntarily commence
a case
28
with respect to itself, as debtor, under the Federal Bankruptcy Code or any
similar federal or state statute without the unanimous consent of all of the
Partners of the Partnership; (d) no Partner may withdraw from the Partnership or
Transfer its interest in the Partnership in violation of the documents that
evidence or secure the Mortgage Loan; (e) the General Partner shall not engage
in any business other than the activity of acting as the General Partner in the
Partnership; and (f) no material amendment to this Agreement or the Certificate
may be made without first obtaining approval of the holder of the Mortgage Loan.
13.3 INDEMNIFICATION. Notwithstanding any provision hereof to the
contrary, any indemnification set forth in this Agreement shall be fully
subordinated to any obligations respecting the Property (including, without
limitation, the Mortgage Loan), and such indemnification shall not constitute a
claim against the Partnership in the event that cash flow is insufficient to pay
such obligations.
13.4 SEPARATENESS COVENANTS. Notwithstanding any provision hereof to the
contrary, for so long as the Mortgage Loan remains outstanding, in order to
preserve and ensure its separate and distinct identity, in addition to the other
provisions set forth in this Agreement, the Partnership shall conduct its
affairs in accordance with the following provisions:
(a) The Partnership shall maintain its records, books of account,
bank accounts, financial statements, accounting records and other entity
documents separate and apart from those of any affiliate; except that the
Partnership's financial position, assets, liabilities, net worth and operating
results may be included in the consolidated financial statements of an
affiliate,
(b) The Partnership shall not commingle assets with those of any
affiliate.
(c) The Partnership shall conduct its own business in its own name.
(d) The Partnership shall pay any liabilities out of its own funds,
including salaries of any employees, not funds of any affiliate.
(e) The Partnership shall maintain an arm's length relationship with
any affiliate.
(f) The Partnership shall not guarantee or become obligated for the
debts of any other entity, including any affiliate, or hold out its credit as
being available to satisfy the obligations of others.
(g) The Partnership shall not pledge its assets for the benefit of
any other entity, including any affiliate.
(h) The Partnership shall hold itself out as an entity separate from
any affiliate.
(i) The Partnership shall at all times have a special purpose
limited liability company as a general partner.
13.5 DISSOLUTION. Notwithstanding any provision hereof to the contrary,
for as long as the Mortgage Loan remains outstanding: (a) the Partnership shall
not terminate solely as a consequence of the bankruptcy of one or more of the
General Partners of the Partnership so long as there remains a solvent General
Partner of the Partnership; and (b) subject to applicable law, dissolution of
the Partnership shall not occur so long as the Partnership remains mortgagor of
the Property.
13.6 DEFINITIONS. For purpose of this Article XIII only, the term
"AFFILIATE" means any Person controlling or controlled by or under common
control with the partnership including, without limitation
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(a) any Person who has a familial relationship, by blood, marriage or otherwise
with any partner or employee of the partnership, or any affiliate thereof and
(b) any Person which receives compensation for administrative, legal or
accounting services from this partnership, or any affiliate. For purposes of
this definition, "control" when used with respect to any specified Person, means
the power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
ARTICLE XIV.
MISCELLANEOUS PROVISIONS
14.1 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.
14.2 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.
14.3 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.
14.4 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.
14.5 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.
14.6 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.
14.7 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.
14.8 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
30
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.
14.9 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.
14.10 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.
14.11 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.
14.12 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.
14.13 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.
14.14 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.
14.15 TIME OF ESSENCE. TIME IS OF THE ESSENCE in connection with this
Agreement.
14.16 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 a mediation administered by the American Arbitration
Association (the "AAA") under its Commercial Mediation Rules before resorting to
arbitration. Thereafter, any unresolved Dispute shall be resolved among the
parties by binding arbitration administered by the AAA in accordance with its
Commercial Arbitration Rules and judgment on the award rendered by the
arbitrator may be entered in any court having jurisdiction. The arbitration
proceedings shall be conducted in Dallas, Texas on an expedited basis before a
neutral arbitrator (or multiple arbitrators if called for by the Commercial
Arbitration Rules, with all references herein to the arbitrator to include
multiple arbitrators). Each arbitrator shall be an attorney with excellent
academic and professional credentials, who (i) is a member of the Bar of the
State of Texas, (ii) has been actively engaged in the practice of law for at
least fifteen (15) years, and (iii) specializes in commercial transactions, with
substantial experience with limited partnerships that own and operate
significant commercial real estate. Attorneys selected as arbitrators need not
have any special experience or training
31
in arbitration proceedings. Any attorney who serves as an arbitrator shall be
compensated at a rate equal to his or her current regular hourly billing rate.
Upon the request of either party, the arbitrator's award shall include findings
of fact and conclusions of law provided that such findings may be in summary
form and the arbitrator shall render his or her decision based on applicable
law. The prevailing party in the arbitration proceeding shall be entitled to an
award of all reasonable out-of-pocket costs and expenses (including attorneys'
and arbitrators' fees) related to the entire arbitration proceeding. Upon
request of either party, the arbitrator may require that the subject arbitration
proceedings be kept confidential and no party shall disclose or permit the
disclosure of any information produced or disclosed in the arbitration
proceedings until the award is final. A party shall not be prevented from
seeking temporary injunctive relief before a court of competent jurisdiction in
an emergency situation, but responsibility for resolution of the Dispute shall
be appropriately transferred to the arbitrator upon appointment in accordance
with the provisions hereof.
ARTICLE XV.
SECURITIES LAW CONSIDERATIONS
15.1 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 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.
15.2 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.
15.3 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.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement of
Limited Partnership as of the date first above written.
GENERAL PARTNER:
---------------
BEHRINGER HARVARD PLAZA XXXXXXXX XX, LLC, a Texas
limited liability company
By:______________________________________
Name:____________________________________
Its:_____________________________________
CLASS A LIMITED PARTNERS:
------------------------
BEHRINGER HARVARD SHORT-TERM
OPPORTUNITY FUND I, LP, a Texas
limited partnership
By: ________________________________________
Xxxxxx X. Xxxxxxxxx, its General Partner
By: Behringer Harvard Advisors II LP, a
Texas limited partnership, its General
Partner
By: Harvard Property Trust, LLC
Its General Partner
By:_______________________________
Xxxxxx X. Xxxxxxxxx, President
XXXXXXX PLAZA, LTD.,
a Texas limited partnership
By: GP Xxxxxxx Plaza, Inc.,
a Texas limited partnership
By:______________________________
Name:____________________________
Title:___________________________
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CLASS B LIMITED PARTNER:
-----------------------
DUNHILL PARTNERS, INC.,
a Texas corporation
By: _________________________
Name: _______________________
Title: ______________________
34
