Exhibit 10.1
AGREEMENT OF LIMITED PARTNERSHIP
OF
HPMC DEVELOPMENT PARTNERS, L.P.
A DELAWARE LIMITED PARTNERSHIP
DATED AS OF THE 23RD DAY OF APRIL, 1998
THE INTERESTS ISSUED UNDER THIS AGREEMENT HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR REGISTERED OR
QUALIFIED UNDER THE APPLICABLE STATE SECURITIES LAWS, IN RELIANCE UPON
EXEMPTIONS FROM REGISTRATION AND QUALIFICATION PROVIDED IN THE SECURITIES ACT
AND THE APPLICABLE STATE SECURITIES LAWS, AND MAY NOT BE SOLD OR TRANSFERRED IN
THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND
QUALIFICATION OR REGISTRATION UNDER THE APPLICABLE STATE SECURITIES LAWS, OR AN
OPINION OF COUNSEL SATISFACTORY TO THE ISSUER THAT SUCH REGISTRATION OR
QUALIFICATION IS NOT REQUIRED.
IN ADDITION, THE INTERESTS ISSUED UNDER THIS AGREEMENT MAY BE SOLD OR
TRANSFERRED ONLY IN COMPLIANCE WITH THE RESTRICTIONS ON TRANSFER SET FORTH
HEREIN.
AGREEMENT OF LIMITED PARTNERSHIP
OF
HPMC DEVELOPMENT PARTNERS, L.P.
A DELAWARE LIMITED PARTNERSHIP
THIS AGREEMENT OF LIMITED PARTNERSHIP ("Agreement") is made and entered
into as of the 23rd day of April, 1998, by and among HCG DEVELOPMENT, L.L.C., a
Delaware limited liability company, as the managing general partner ("Highridge
GP" or for so long as Highridge GP is a General Partner, the "Managing General
Partner"), SUMMIT PARTNERS I, L.L.C., a Delaware limited liability company, as a
limited partner (the "Highridge Limited Partner"), and XXXX-XXXX CALIFORNIA
DEVELOPMENT ASSOCIATES L.P., a California limited partnership, as a limited
partner (the "Xxxx-Xxxx Limited Partner" and together with the Highridge Limited
Partner, the "Limited Partners"), with reference to the following:
RECITALS
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A. The Managing General Partner and the Limited Partners desire to form a
limited partnership pursuant to the provisions of the Revised Uniform Limited
Partnership Act of the State of Delaware, Delaware Code, Title 6 Sections
117-101, ET SEQ., as amended from time to time, and to constitute themselves as
HPMC DEVELOPMENT PARTNERS, L.P., a Delaware limited partnership (the
"Partnership") for the purposes set forth in Sections 1.5 and 1.11, and on the
terms and conditions set forth in this Agreement.
B. The Managing General Partner and each of the Limited Partners desires
to make its respective capital contributions to the Partnership as described in
this Agreement and to be admitted as a Partner of the Partnership.
C. In order to effect the foregoing, the parties hereto desire to enter
into this Agreement as set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein (the receipt and sufficiency of which hereby are acknowledged
by each party hereto), the parties hereto, intending to be legally bound, agree
as follows:
ARTICLE 1
GENERAL PROVISIONS
1.1 FORMATION. The Managing General Partner, as the general partner, and
the Highridge Limited Partner and the Xxxx-Xxxx Limited Partner, as limited
partners, hereby form the Partnership as a limited partnership pursuant to the
terms of this Agreement and the Act. This Agreement shall constitute the
agreement of limited partnership among the Partners. All capitalized terms used
and not otherwise defined herein shall have the meanings set forth in Section
1.10 and Exhibit A. The Partners further agree to take such other actions as
may from time to time be necessary or appropriate under the laws of the States
of Delaware and California with respect to the formation, operation,
qualification and continued good standing of the Partnership as a limited
partnership in such jurisdictions.
1.2 NAME OF PARTNERSHIP. Subject to Section 1.3., the name of the
Partnership shall be "HPMC DEVELOPMENT PARTNERS, L.P.," or such other name as
may be reasonably Approved by the General Partners from time to time.
1.3 CERTIFICATE OF LIMITED PARTNERSHIP. The Managing General Partner
shall execute the Certificate of Limited Partnership (the "CERTIFICATE") for the
Partnership, and the Managing General Partner shall (i) cause the Certificate to
be filed in the Office of the Secretary of State of the State of Delaware as
required by the Act, and (ii) cause the Partnership to take any other steps that
are necessary for the Partnership to own the Investments and operate the
Properties and to conduct the Partnership's business in Delaware and California,
promptly after the date hereof. The Certificate shall be amended whenever, and
within the time periods, required by the Act, or otherwise when reasonably
Approved by the Partners.
1.4 PRINCIPAL OFFICE, RESIDENT AGENT AND REGISTERED OFFICE. The principal
office of the Partnership shall be located at 000 Xxxxxxxxxxx Xxxxxxxxx, Xxxxx
000, Xx Xxxxxxx, Xxxxxxxxxx 00000, or at such other place or places as from time
to time be reasonably Approved by the General Partners; PROVIDED, HOWEVER, that
the Partnership shall at all times maintain a registered agent and an office in
the State of Delaware and the State of California. The name and address of the
registered agent for service of process on the Partnership in the State of
Delaware is Paracorp Incorporated, 00 Xxxx Xxxxx Xxxxxx, Xxxxx, Xxxxxxxx 00000.
The address of the registered office of the Partnership in the State of Delaware
is c/o Paracorp Incorporated, 00 Xxxx Xxxxx Xxxxxx, Xxxxx, Xxxxxxxx 00000. The
name and address of the registered agent for service of process on the
Partnership in the State of California is Xxxx Xxxxxxxx, Esq., 000 Xxxxxxxxxxx
Xxxxxxxxx, Xxxxx 000, Xx Xxxxxxx, Xxxxxxxxxx 00000. The address of the
registered office of the Partnership in the State of California shall be the
principal office of the Partnership. Such principal office, registered agent or
registered office may be changed upon the reasonable Approval of the General
Partners, so long as in accordance with the Act; concurrently with any such
change, written notice thereof shall be
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given to each Partner. Promptly following execution and delivery of this
Agreement, and filing of the Certificate with the Secretary of State of the
State of Delaware, the Managing General Partner shall cause the Partnership to
register as a foreign limited partnership in the Office of the Secretary of
State of California and in such other jurisdictions as are necessary or
desirable. Such registration shall be amended by the General Partners whenever
required by the laws of each such jurisdiction.
1.5 PURPOSES OF PARTNERSHIP. The purposes of the Partnership shall be:
1.5.1 Subject to the other provisions of this Agreement, to
acquire the Investments for investment purposes, and to own, hold, rehabilitate,
develop with office buildings, manage, maintain, entitle, plat, subdivide,
operate, finance, refinance, rezone, improve, lease, and to sell, exchange or
otherwise dispose of the El Segundo Land (more particularly described on Exhibit
D-1) and the Summit Ridge Land (more particularly described on Exhibit D-2), and
any other property Approved by the Partners (as improved from time to time, the
"Properties") and interests therein, whether directly or through Investment
Entities formed by the Partnership as provided in Section 1.5.2.
1.5.2 Subject to the other provisions of this Agreement, to
acquire any other assets that are incidental to the foregoing which have been
Approved by the Partners (the Properties and other assets owned by the
Partnership, including interests in Entities owning Properties or interests
therein, are referred to as the "Investments"). The Partnership shall, unless
otherwise Approved by the Partners, cause each Property to be acquired,
developed and owned by a separate limited liability company or limited
partnership formed by the Partnership for the purpose of acquiring the same or
interests therein (each such partnership or limited liability company, together
with any Entity in which such limited liability company or partnership owns a
direct or indirect equity ownership interest, an "Investment Entity"), and the
Partnership may form one or more other subsidiaries to serve as a general
partner of any limited partnership or as a member of any limited liability
company formed for Partnership purposes on terms reasonably Approved by the
Partners. The Partnership may take all actions required or permitted to be
taken by it under each Investment Entity Agreement (such actions to be required
to be Approved by the Partners to the extent required by this Agreement). The
Partnership may engage in any and all other general business activities
incidental or reasonably related to the foregoing.
1.6 FUNDING PROPORTIONS; RESIDUAL PERCENTAGES
1.6.1 The respective Funding Proportions and Residual Percentages in
the Partnership of the Partners are set forth on Exhibit B.
1.6.2 Unless the context otherwise clearly indicates, the term
"interest" or "interests" in the Partnership shall include both General Partner
interests and Limited Partner interests. A Partner's interest in the
Partnership shall mean and include its share of the capital
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of the Partnership, its share of the Profits and Losses, its share of Gain or
Loss on Disposition and other tax items of the Partnership, its share of the
distributions of the Partnership, its Capital Account, and its other rights and
obligations, all as determined under this Agreement.
1.7 OTHER QUALIFICATIONS. At the expense of the Partnership, the General
Partners shall cause the Partnership to be qualified to do business in each
jurisdiction in which such qualification becomes necessary (including
California), on or before the date on which such qualification becomes
necessary.
1.8 TERM OF PARTNERSHIP. The term of the Partnership commenced as of the
date of filing the Certificate and shall continue until the Partnership shall be
dissolved, liquidated and terminated pursuant to the provisions of Article 8.
1.9 TITLE TO PARTNERSHIP PROPERTY. Unless otherwise Approved by the
Partners, legal title to all of the Partnership's assets, including the
Properties and the Investments, shall be held by the Partnership, either
directly or through Investment Entities formed by the Partnership to acquire
such assets. It is expressly understood and agreed that the manner of holding
title to Partnership property is solely for the convenience of the Partners;
accordingly, legal representatives, beneficiaries, distributees, partners,
shareholders, members, successors or assigns of any Partner shall have no right,
title or interest in or to any such Partnership property by reason of the manner
in which title is held, but all such property shall be treated as Partnership
property subject to the terms of this Agreement.
1.10 DEFINITIONS. Capitalized terms that are used in this Agreement shall
have the meanings set forth on Exhibit A.
1.11 AUTHORIZED ACTS. In furtherance of its purposes, and subject to the
provisions of this Agreement, the Partnership and its General Partners shall
have the full power and authority to take in the Partnership's name all actions
that are necessary, useful, appropriate or helpful in connection therewith,
including the actions described in Section 5.1.1 hereof.
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1.12 AUTHORIZED REPRESENTATIVES. The "Authorized Representatives" of a
Partner that is not a natural person shall be those representatives designated
by notice to all other Partners by such Partner from time to time to represent
such Partner in connection with the Partnership, unless and until replaced or
removed by notice from such Partner to all Partners. The written statements and
representations of an Authorized Representative for a Partner that is not a
natural Person shall be the only authorized statements and representations of
such Partner with respect to the matters covered by this Agreement. The initial
Authorized Representatives are (i) Xxxx X. Xxxx, Xxxxxx X. Xxxxxxxxx, Xxxxxx X.
Xxxxxxxxx and Xxxx Xxxxxxx for the Highridge Partners, and (ii) Xxxxxx Xxxx,
Xxxxxxxx X. Xxxxx, Xxxxx X. Xxxxxx and Xxxxx Xxxxxxxxx for the Xxxx-Xxxx
Partners. The written statement or representation of any one Authorized
Representative of such Partner shall be sufficient to bind such Partner with
respect to all matters pertaining to the Partnership. The term "Approved by" or
"Consented to by" or "Consent of" or "satisfactory to" with respect to a Partner
that is not a natural Person means a decision or action which has been consented
to in writing by the Authorized Representative of such Partner (or orally to the
extent that the Partners have adopted a course of conduct pursuant to which
certain Approvals, other than those described below in this Section 1.12, are
granted orally), and with respect to a Partner who is an individual, means a
decision or action which has been consented to in writing by such individual.
In order for a decision or action to be "Approved by the Partners" (or any
variation thereof), the decision or action must be Approved by at least one
Authorized Representative of each Partner who then continues to have Approval
rights with respect to such action or decision under this Agreement. In order
for a decision or action to be "Approved by the General Partners" (or any
variation thereof), the decision or action must be Approved by at least one
Authorized Representative of each then General Partner. Notwithstanding
anything in this Agreement to the contrary (including any course of conduct
regarding oral Approvals that has been adopted by the Partners), the following
Approvals must be given in writing (to the extent Approval is required therefor)
in order to be effective: (1) acquisition by the Partnership or an Investment
Entity of a Property other than the El Segundo Land and the Summit Ridge Land
(the acquisition of which hereby is Approved by the Partners pursuant to the
Approved Development Plans with respect thereto that are described on Exhibit
C), (2) any borrowing by the Partnership or an Investment Entity, (3) the sale
or other disposition of any Investment or Property, (4) adopting or materially
modifying a Development Plan for any Property or any Approved Budget contained
therein, including any Approved Overhead Budget contained therein or Approved by
the Partners in connection therewith (the Partners hereby confirm that the
initial Approved Development Plan, Approved Budget, and Approved Overhead Budget
for each of the El Segundo Land and the Summit Ridge Land are described on
Exhibit C), (5) liquidating the Partnership or any Investment Entity and (6)
issuing a Funding Notice as provided in Section 2.1.2.1(ii). Section 5.1.6.2
sets forth the procedure for obtaining Approvals.
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ARTICLE 2
CAPITAL CONTRIBUTIONS
AND ADDITIONAL CONTRIBUTIONS
2.1 CAPITAL CONTRIBUTIONS.
2.1.1 INITIAL CAPITAL CONTRIBUTIONS. (a) Each Partner has
contributed the amount in cash to the capital of the Partnership that is set
forth for such Partner on Exhibit B as its Section 2.1.1 Contribution (Cash).
(b) The Highridge Partners hereby assign to the Partnership, by
contribution to the capital of the Partnership, their entire right, title and
interest in and to the land located in El Segundo California that is more
particularly described on Exhibit D-1 (the "El Segundo Land"). The aggregate
agreed value of the El Segundo Land (and its Gross Asset Value) that shall
constitute Section 2.1.1 Contributions of the Highridge Partners and shall be
credited to the Capital Accounts of the Highridge Partners (in the proportion
set forth on Exhibit B) equals $9,000,000, of which $7,000,000 shall constitute
Invested Capital of the Highridge Partners and $2,000,000 shall constitute the
"Highridge Subordinated Contributions" (on which Highridge Subordinated
Contribution Return accrues). The Partnership shall contribute its interest in
the El Segundo Land to an Investment Entity prior to its development. For
convenience, the foregoing contribution to the Partnership and subsequent
contribution by the Partnership to such Investment Entity may be accomplished by
a direct deed of title to the El Segundo Land from Affiliates of the Highridge
Partners to such Investment Entity (and such direct deed hereby is Approved by
the Partners). The Highridge Partners shall timely execute and record such
documents as are necessary to reflect the transfer of legal title to the El
Segundo Land to such Investment Entity (in form reasonably Approved by the
Xxxx-Xxxx Limited Partner).
2.1.2 ADDITIONAL CAPITAL CONTRIBUTIONS.
2.1.2.1 GENERAL RULES. Except as provided in this Section
2.1.2, no Partner shall be required to make any Capital Contributions other than
those described in Sections 2.1.1, 3.5.4 and 4.3.2. Each Partner shall be
required to make additional Capital Contributions to the Partnership if any
General Partner or the Xxxx-Xxxx Limited Partner gives notice to all Partners (a
"Funding Notice") that meets the requirements of this Section 2.1.2. If a
Funding Notice is properly issued, the amount of additional Capital
Contributions so required from each Partner ("Required Additional
Contributions") shall be (except as otherwise provided in this Section 2.1.2)
the amount to be contributed by such Partner pursuant to the Sections of this
Agreement referenced below in this Section 2.1.2.1 upon the occurrence of the
circumstances giving rise to the obligation of one or more of the Partners to
make such Required Additional Contributions under this Agreement, as specified
in such
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Funding Notice (the collective dollar obligation of the Partners with respect
thereto for such Funding Notice is referred to as a "Shortfall"):
(i) the Xxxx-Xxxx Partners shall be required to fund 100% of any
additional Required Additional Contributions in order to make the Capital
Equalization Distribution described in Section 2.1.2.3;
(ii) except as specifically Approved in writing by the Partners after
the execution of this Agreement, no Funding Notice may be issued except to
the extent amounts described in preceding clause (i) or clause (iii) of
this Section 2.1.2.1, and/or in Sections 3.5.4 and 4.3.2 are required to be
contributed to the Partnership by one or more Partners; and
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(iii) Notwithstanding any provision of this Agreement to the
contrary, (a) if and to the extent that distributions have been made to the
Partners pursuant to the preferential distribution thereof described in
Sections 4.1.1 (d), (e) or (f) (but not pursuant to Section 2.1.2.3 except
as provided below, and not in payment of Undistributed Highridge
Subordinated Contributions or Undistributed Highridge Subordinated Return
pursuant to the preferential distribution thereof described in Section
4.1.2), such distributions shall be recontributed to satisfy any Shortfall
of the Partnership other than a Shortfall described in clause (i) of this
Section 2.2.2.1 (in the ratio distributed to the Partners under such
Sections) in response to a Funding Notice concerning such Shortfall (such
recontributions to constitute Required Additional Contributions for
purposes of this Agreement); and (b) if and to the extent distributions
have been made to the Highridge Partners pursuant to Section 2.1.2.3, the
Highridge Partners shall recontribute (and the Xxxx-Xxxx Limited Partner
shall contribute) in response to such Funding Notice (prior to making the
recontributions described in preceding clause (a)) such portion of such
distributions as are necessary for the Invested Capital of Highridge
Partners and the Xxxx-Xxxx Limited Partner (determined after taking into
account such recontribution by the Highridge Partners and contribution by
the Xxxx-Xxxx Limited Partner) to be in the ratio of their respective
Funding Proportions (such recontribution and contribution by such Partners
to constitute Required Additional Contributions for all purposes of this
Agreement).
Except as provided below, no Partner shall be required to issue a
Funding Notice under any circumstances. Notwithstanding the preceding
sentence, the Managing General Partner shall be required to issue a Funding
Notice within five (5) days after receiving notice from the Xxxx-Xxxx
Limited Partner that a Funding Notice is required in order to fund the
amounts described in this Section 2.1.2 that are then due and payable (the
Xxxx-Xxxx Limited Partner shall not be required to issue such a notice
under any circumstances). A Funding Notice may be issued by the Xxxx-Xxxx
Limited Partner if the Managing General Partner shall fail to do so within
such 5-day period. Each Funding Notice shall describe the Shortfall and
set forth the Required Additional Contribution of each Partner as
determined pursuant to this Section 2.1.2. If a Funding Notice is properly
issued as provided above in this Section 2.1.2, each Partner shall
contribute its Required Additional Contributions on or before the Due Date
therefor under Section 2.2.1. The provisions of this Section 2.1.2 which
provide that a Funding Notice must be validly issued before additional
Capital Contributions are required to be made shall not affect in any way
the obligation of any Partner to pay to the Partnership or to the other
Partners, as the case may be, any amount required to be paid by such
Partner to them under this Agreement (it being agreed that the issuance of
a Funding Notice shall not be required in order for the Partnership or any
Partner to enforce any such payment obligation).
2.1.2.2 SPECIAL DISTRIBUTION. Notwithstanding the other
provisions of this Agreement, to the extent the amount of the construction
financing for the El Segundo
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Land and Summit Ridge Land exceeds $27.2 million but does not exceed $28.2
million, a special distribution shall be made to the Xxxx-Xxxx Limited Partner,
which distribution (a) shall be deemed to have been made pursuant to Section
4.1.1(c) in partial repayment of the Invested Capital of the Xxxx-Xxxx Limited
Partner (such distribution not to exceed $1 million), and (b) shall be made
prior to any other distributions to the Partners under Article 4.
2.1.2.3 CAPITAL EQUALIZATION. Notwithstanding any other
provision of this Agreement, at any time after the later to occur of (a) the
date that is one year after the date of this Agreement or (b) the El Segundo
Valuation Date, Highridge GP may elect, by notice to the Xxxx-Xxxx Limited
Partner to cause a special distribution to be made by the Partnership to the
Highridge Partners as provided in this Section 2.1.2.3 (the "Capital
Equalization Distribution"). The Capital Equalization Distribution shall be
made from cash on hand of the Partnership that is available for distribution to
the Partners under Sections 4.1.1, 4.1.2 and 4.2.3 before any distribution is
made under those Sections to the Partners. To the extent there is insufficient
cash on hand to make the entire Capital Equalization Distribution, Highridge GP
may issue a Funding Notice to the Xxxx-Xxxx Limited Partner pursuant to which
the Xxxx-Xxxx Limited Partner shall be obligated to fund 100% of such deficit
(which amount shall be distributed to the Highridge Partners upon receipt by the
Partnership). Any such contribution by the Xxxx-Xxxx Limited Partner shall
constitute Capital Contributions (and Invested Capital) of the Xxxx-Xxxx Limited
Partner for all purposes of this Agreement. The maximum amount of such
contribution from the Xxxx-Xxxx Limited Partner shall not exceed the lesser of
(i) $4,000,000 or (ii) the maximum amount of Required Additional Contributions
then remaining with respect to the Xxxx-Xxxx Limited Partner. The Capital
Equalization Distribution shall be deemed to be a distribution made to the
Highridge Partners under Section 4.1.1(c) in repayment of the Highridge
Partners' Invested Capital (pro rata to each Highridge Partner in proportion to
the then Invested Capital of each Highridge Partner). The amount of the Capital
Equalization Distribution shall equal the amount that is necessary to cause the
Invested Capital of the Highridge Partners (determined after making the Capital
Equalization Distribution and taking into account any distributions to the
Partners made pursuant to Sections 2.1.1.2 above and 2.1.2.4 below) to equal 20%
of the aggregate Invested Capital of all Partners (determined after making the
Capital Equalization Distribution and after the Xxxx-Xxxx Limited Partner's
Invested Capital has been increased for purposes of this computation by any
Xxxx-Xxxx Limited Partner contribution that would then be required to be made
pursuant to this Section 2.1.2.3). Notwithstanding the foregoing, in no event
shall the Capital Equalization Distribution exceed $4,000,000.
2.1.2.4 MEZZANINE FINANCING. The Xxxx-Xxxx Limited
Partner shall have the right, upon notice to the Highridge Partners but subject
to the reasonable Approval of the Managing General Partner, to cause the
Partnership to obtain Third Party Mezzanine Financing (with respect to which no
Partner or its Affiliates shall be required to provide any personal guaranties
of repayment without such Partner's Approval), PROVIDED, HOWEVER, that if such
financing is obtained, the Xxxx-Xxxx Limited Partner shall cause the Capital
Equalization Distribution to be made to the Highridge Partners as provided
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in Section 2.1.2.3 prior to making any distributions to the Partners under
Article 4 thereafter (including distributions of the proceeds of such Third
Party Mezzanine Financing). As an alternative to Xxxx-Xxxx making the
contribution described in Section 2.1.2.3 in order to make such Capital
Equalization Distribution, the Partners may accomplish the same result by making
first distributions to the Highridge Partners from the proceeds of such Third
Party Mezzanine Financing as necessary to place the Partners' Invested Capital
in the same ratio as if the contribution and distribution described in Section
2.1.2.3 had occurred. Distributions to the Highridge Partners pursuant to this
Section 2.1.2.4 shall be deemed to have been made pursuant to Section 4.1.1(c)
in repayment of the Highridge Partners' Invested Capital.
2.1.3 CONTRIBUTIONS OF SERVICES. The Residual Percentage of any
Partner in excess of such Partner's Funding Proportion shall be deemed to be a
profits interest that has been received in exchange for services rendered or to
be rendered by such Partner to or for the benefit of the Partnership (such
excess Residual Percentage having no currently predictable distributions or
value).
2.2 THIRD-PARTY LOANS AND ADDITIONAL CAPITAL CONTRIBUTIONS AND CAPITAL
CALLS.
2.2.1 If a Funding Notice is properly given by a Partner pursuant
to Section 2.1.2, each Partner shall have the obligation, subject to the
limitations contained in Section 2.1.2, to contribute its Required Additional
Contributions within five (5) days after the later to occur of (i) the date on
which the Funding Notice with respect thereto has been received (or deemed
received under Section 9.5) or (ii) the required funding date that is set forth
in the Funding Notice (the expiration of such five-day period is referred to as
the "Due Date"). There shall be a cure period of five (5) days after the Due
Date for each Partner to contribute its Required Additional Contribution, as
provided in Section 2.2.2.
2.2.2 If any Partner fails to contribute the full amount of its
Capital Contributions required to be made pursuant to Section 2.1.2 and Section
2.2.1 within five (5) days after the Due Date thereunder (such Partner and any
other Partner in such Partner's Partner Group thereupon being collectively
referred to as the "Defaulting Partner"), then, as the exclusive remedies of the
Partnership and the other Partners who are not Defaulting Partners (the
"Non-Defaulting Partners"), the Non-Defaulting Partner shall have the following
remedies, exercisable by notice from the Non-Defaulting Partners to the
Defaulting Partner: (i) to elect to treat the Defaulting Partner as a Terminated
Partner under Section 7.9 (and pursue the remedies under this Agreement that
apply after a Partner becomes a Terminated Partner), (ii) to cause the
Partnership to xxx the Defaulting Partner for actual (and not consequential)
damages that shall be limited to the portion of the Defaulting Partner's share
of the Shortfall Disbursement that was not received timely, plus interest at the
rate equal to the lesser of (x) fifteen percent (15%) per annum or (y) the
maximum interest rate permitted by law, and plus the costs of collection, and
(iii) to elect to lend (or to cause the Non-Defaulting Partners' Affiliates to
lend), to the Defaulting Partner or to the Partnership, as Approved by the
Non-Defaulting Partners, the amount of such Capital Contribution that was not
made
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timely by the Defaulting Partner. The remedies described in clauses (i), (ii)
and (iii) of this Section 2.2.2 shall be cumulative, and all or any of them may
be elected and apply simultaneously, except as provided in Section 2.2.2.1.
2.2.2.1 If the Non-Defaulting Partners choose to lend (or to
cause their Affiliates to lend) the amount of the Required Additional
Contribution not made timely by the Defaulting Partner, the loan shall be a
recourse loan to the Partnership or to the Defaulting Partner, as elected by the
Non-Defaulting Partners, and shall bear interest, compounded monthly, at the
rate equal to the lesser of (i) the maximum interest rate permitted by law or
(ii) fifteen percent (15%) per annum, from the date such loan is made until the
date of repayment. Such loan shall be deemed to have been made to the
Defaulting Partner (and not to the Partnership) only if the Non-Defaulting
Partners (or the Non-Defaulting Partners' Affiliate) has paid such amount
directly to the Partnership and specifies, by notice to the Partners given
within two (2) Business Days after such funding, that the loan is being made to
the Defaulting Partner, in which case (1) said amount shall be deemed to have
been contributed to the Partnership by the Defaulting Partner for purposes of
determining the Capital Contributions made by the Defaulting Partner, its
Invested Capital and the Preferred Return thereon, (2) the remedies against the
Defaulting Partner described in Sections 2.2.2(ii) and 9.2 shall not apply with
respect to said amount, and (3) the Defaulting Partner shall still be deemed to
be a Terminated Partner for purposes of applying the remedies contained in
Section 7.9 and for all other provisions of this Agreement. Repayment of any
such loan to the Defaulting Partner shall be effected by the General Partners
being required to cause the Partnership to pay directly to the Non-Defaulting
Partners all distributions otherwise payable to the Defaulting Partner under
this Agreement as and when payable, instead of making such distributions to the
Defaulting Partner (with such distributions being deemed for all purposes to
have been made to the Defaulting Partner and then paid by the Defaulting Partner
to the Non-Defaulting Partners or their Affiliates, as the case may be).
Repayment of any such loan to the Partnership shall be made as provided in
Section 4.1 and Section 4.2.2. Any payments made with respect to loans
described in this Section 2.2.2.1 shall first be deemed to pay accrued but
unpaid interest, and then be deemed to repay principal.
2.2.2.2 If none of the Partners timely contributes any portion
of its
Required Capital Contribution pursuant to a Funding Notice, there shall be no
remedy of any Partner or the Partnership against any other Partner by reason of
the failure to make such Required Capital Contributions.
2.2.3 Except as otherwise specifically set forth in this
Agreement, no Partner shall have the right (i) to withdraw such Partner's
Capital Contribution or to demand or receive the return of a Capital
Contribution or to make any claim to any portion of Partnership capital or (ii)
to demand or receive property other than cash in return for a Capital
Contribution or to receive any cash in return for a Capital Contribution.
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2.2.4 Except as expressly provided in this Agreement, no Partner
shall have personal liability to make any Capital Contribution.
2.2.5 A deficit Capital Account of a Partner (or of a partner,
member or venturer of a Partner) shall not be deemed to be a liability of such
Partner (or of such partner, member or venturer) or an asset or property of the
Partnership (or any Partner). Furthermore, no Partner shall have any obligation
to the Partnership, any other Partner or any creditor of any of them or of any
Investment Entity for any deficit balance in such Partner's Capital Account.
2.3 USE OF CAPITAL CONTRIBUTIONS; CERTAIN EXPENSES. The initial cash
Capital Contributions made pursuant to Section 2.1.1(a) shall be used as
follows: (i) to pay unpaid third-party formation and start-up costs of the
Partnership and the Investment Entities, the acquisition costs of the
Investments (including the costs of entering into and performing under the
Acquisition Documents) that have been Approved by the Partners, and any
reimbursements (limited to each Partner's cost) included in the Initial Approved
Budget contained in the Approved Development Plan attached as Exhibit C with
respect to due diligence, formation and start-up expenditures; including
attorneys' fees and expenses and formation and qualification costs (and to
reimburse each Partner, limited to such Partner's cost, for portions thereof
already paid by such Partner or its Affiliates), such amounts (a) to include the
Partners' attorneys fees and expenses in connection with the preparation of this
Agreement, and the documents contemplated hereby, and (b) to be paid or
reimbursed to the Partners by the Partnership out of such Capital Contributions
promptly after invoices for such amounts are submitted to the Partnership and to
each Partner, and (ii) the balance, if any, shall be held in reserves pending
expenditure as set forth in an Approved Budget (or otherwise as Approved by the
Partners) or as permitted without such Approval under Section 5.1.3.2, Section
5.1.3.3 or Section 5.1.3.4; PROVIDED, HOWEVER, that $1 million of the expense
reimbursement with respect to the El Segundo Land and the Summit Ridge Land
payable to the Highridge Partners that is described on Exhibit M shall not be
paid currently as provided above but shall instead be paid to the Highridge
Partners as a Partnership expense, together with interest at an annual rate of
10% per annum from the Agreement Date to the date of payment, on the date which
is thirty days after the date on which this Agreement has been executed and
delivered by all parties hereto. The Partners hereby confirm that the expense
reimbursements of the Highridge Partners that are described on Exhibit M have
been Approved by the Partners.
2.4 PARTNER LOANS. (a) If available cash flow, borrowings and Capital
Contributions are insufficient for the reasonable requirements of the
Partnership, the Xxxx-Xxxx Limited Partner if it is not a Terminated Partner,
shall have the unilateral right (but not the obligation) to finance (directly,
or through an Affiliate) any Partnership expenditure at an interest rate equal
to the lesser of (i) ten percent (10%) per annum or (ii) the maximum rate
permitted by law, provided, however, that prior to making any loan pursuant to
this Section 2.4(a), the Xxxx-Xxxx Limited Partner shall, unless a Highridge
Partner is a Terminated Partner, give at least ten (10) Business Days prior
written notice to the Highridge
12
GP and offer to the Highridge Partners the opportunity to participate (in
proportion to the Partners' Funding Proportions) in such loan. Any notice from
the Xxxx-Xxxx Limited Partner pursuant to this Section 2.4(a) shall specify the
amount of such loan, the share thereof which the Highridge Partners may lend and
the earliest date on which such loan is to be made to the Partnership (which
date shall not, except in case of Emergency, be earlier than ten (10) Business
Days after such notice is received by the Highridge GP). The Highridge Partners
may participate in any loan pursuant to this Section 2.4(a), if at all, only by
delivery to the Xxxx-Xxxx Limited Partner, not later than the date specified in
such notice, of its share of such loan. All loans described in this Section
2.4(a) shall be repayable as provided for in Sections 4.1 and 4.2.
(b) [INTENTIONALLY OMITTED.]
2.5 CONTRIBUTIONS TO INVESTMENT ENTITIES. Notwithstanding anything in
this Agreement to the contrary, to the extent that the reasonable needs of the
business of any Investment Entity require funding of expenditures in excess of
the reserves, other assets and available borrowings of the Partnership and such
Investment Entity that have been Approved by the Partners (whether in an
Approved Budget, Approved Development Plan or otherwise) for the payment thereof
other than with respect to a Property that is the subject of an Abandonment
Decision, (a) the Xxxx-Xxxx Limited Partner may (but shall not be required to)
elect, by notice to the Managing General Partner, or (b) the Managing General
Partner may (but shall not be required to) elect, by notice to the Xxxx-Xxxx
Limited Partner, to cause the Partnership to retain (in lieu of distributing the
same under Article 4) otherwise distributable Net Available Cash, Net Mortgage
Proceeds and Capital Receipts from any source (including other Properties and
Investment Entities) and cause the Partnership to contribute such amounts to
such Investment Entity for use by it for the payment of such expenditures;
PROVIDED, HOWEVER, that the maximum aggregate amount of cash that is retained
pursuant to all notices given pursuant to this Section 2.5 with respect to any
Investment Entity shall not exceed twenty-five percent (25%) of the Capital
Contributions made by the Partnership to such Investment Entity for all periods
(regardless of whether distributed back to the Partnership), other than Capital
Contributions made by the Partnership to such Investment Entity pursuant to this
Section 2.5.
ARTICLE 3
INCOME TAX ALLOCATIONS
3.1 ESTABLISHMENT AND MAINTENANCE OF CAPITAL ACCOUNTS; PARTNERSHIP STATUS.
The General Partners shall establish and cause the Partnership to maintain a
single book Capital Account for each Partner which reflects each Partner's
Capital Contributions to the Partnership and a single tax capital account which
reflects the adjusted tax basis of the Capital Contributions (including the El
Segundo Land and the amounts described in Section 2.1.2.2)
13
contributed by each Partner to the Partnership. Each Capital Account and tax
capital account shall also reflect the allocations and distributions made
pursuant to Articles 3 and 4 and otherwise be adjusted in accordance with Code
Section 704 and the principles set forth in Regulations Sections 1.704-l(b) and
1.704-2. In applying such principles, any expenditures of the Partnership
described in Code Section 705(a)(2)(B) or treated as Code Section 705(a)(2)(B)
expenditures pursuant to Regulations Section 1.704-l(b)(2)(iv)(i) shall be
allocated among the Partners in the same manner as such expenditures would be
allocated among the Partners pursuant to this Article 3 if such expenditures
were treated as additional items of deduction of the Partnership (as computed
for book purposes) that were recognized and required to be allocated among the
Partners pursuant to this Article 3 with respect to the Partnership Accounting
Year in which such expenditures were made. The Partners intend that the
Partnership be treated as a partnership for tax purposes.
3.2 PROFIT AND LOSS ALLOCATIONS. Except as expressly provided to the
contrary in this Section 3.2, for purposes of determining Capital Account
balances under this Section 3.2, (a) Profit and Loss with respect to any
Partnership Accounting Year shall be allocated prior to reducing Capital
Accounts by any distributions with respect to such Partnership Accounting Year,
and (b) Section 3.2 shall be applied before applying Section 3.3.
3.2.1 LOSS FROM OPERATIONS. For each Partnership Accounting Year
from the Agreement Date until the termination of the Partnership, Loss from
Partnership operations shall be allocated among the Partners in the following
order of priority:
3.2.1.1 First, among the Partners as necessary to cause each
Partner's
Capital Account balance to equal the sum of (i) the amount of Net Available Cash
that would be distributed to such Partner pursuant to Section 4.1 with respect
to such Partnership Accounting Year if the Partnership distributed all of the
Net Available Cash for such Partnership Accounting Year without any portion
thereof being withheld as reserves or reinvested, plus (ii) the amount that
would be distributed to such Partner pursuant to Sections 4.1 and 4.2.3 if the
Partnership (a) distributed all Capital Receipts and Net Mortgage Proceeds
received with respect to such Partnership Accounting Year (without any portion
thereof being retained as reserves or reinvested) pursuant to Section 4.1 and
(b) then sold all of its remaining assets (including its interest in every
Investment Entity) for their adjusted tax basis (or adjusted book basis in the
case of Revalued Property) and distributed the proceeds therefrom and its
reserves (net of debt repayments) to the Partners pursuant to Sections 4.1 and
4.2.3; and
3.2.1.2 Second, after giving effect to the allocations made
pursuant to Sections 3.2.1.1 among the Partners in proportion to the Partners'
respective Funding Proportions.
3.2.2 PROFIT FROM OPERATIONS. For purposes of applying Section
3.2.1 and this Section 3.2.2, a Partner's Capital Account balance shall be
deemed to be increased by such Partner's share of Partnership Minimum Gain and
Partner Nonrecourse Debt Minimum
14
Gain determined as of the end of such Partnership Accounting Year. For each
Partnership Accounting Year, Profit from Partnership operations shall be
allocated among the Partners as necessary to cause the Capital Account balance
of each Partner to equal the sum of (i) the amount of Net Available Cash that
would be distributed to such Partner under Section 4.1 with respect to such
Partnership Accounting Year (if no portion thereof were withheld as reserves or
reinvested), plus (ii) the amount that would be distributed to such Partner
pursuant to Sections 4.1 and 4.2.3 if the Partnership (a) distributed all
Capital Receipts and Net Mortgage Proceeds received with respect to such
Partnership Accounting Year (without any portion thereof being retained as
reserves or reinvested) pursuant to Section 4.1, and (b) then sold all of its
remaining assets (including its interest in every Investment Entity) for their
adjusted tax basis (or adjusted book basis in the case of Revalued Property),
and distributed the proceeds therefrom and its reserves (net of debt repayments)
to the Partners pursuant to Sections 4.1 and 4.2.3.
3.3 ALLOCATIONS OF GAIN OR LOSS ON DISPOSITION. For purposes of
determining Capital Account balances under this Section 3.3, Gain or Loss on
Disposition shall be allocated prior to reducing Capital Accounts by the
distributions of Capital Receipts from the Disposition.
3.3.1 GAIN ON DISPOSITION. Gain on Disposition shall be allocated
to the Partners in the following order of priority:
3.3.1.1 First, to the Partners in proportion to, and to the
extent of, any deficit balances in their respective Capital Accounts until all
such Capital Accounts have been restored to zero; and
3.3.1.2 Second, after giving effect to the allocations made
pursuant to Section 3.3.1.1, among the Partners as necessary to cause the
Capital Account balance of each Partner to equal the sum of (i) the amount that
would be distributed to such Partner pursuant to Sections 4.1 if the Partnership
then distributed all of the proceeds received by the Partnership with respect to
such Disposition (net of debt repayments) and did not establish reserves or
reinvest any of the proceeds of such Disposition, plus (ii) the amount that
would be distributed to such Partner pursuant to Sections 4.1 and 4.2.3 if the
Partnership then sold all of its assets remaining after such Disposition and the
distribution of the proceeds of such Disposition for their adjusted tax basis
(or adjusted book basis in the case of Revalued Property) and distributed the
proceeds therefrom and its reserves (net of debt repayments) to the Partners
pursuant to Sections 4.1 and 4.2.3.
3.3.2 LOSS ON DISPOSITION. Loss on Disposition shall be allocated
to the Partners in the following order of priority:
3.3.2.1 First, among the Partners as necessary to cause each
Partner's
15
Capital Account balance to equal the sum of (i) the amount that would be
distributed to such Partner pursuant to Section 4.1 with respect to such
Disposition if the Partnership then distributed all of the proceeds received by
the Partnership with respect to such Disposition under Section 4.1. (net of debt
repayments) and did not establish reserves or reinvest any of the proceeds of
such Disposition, plus (ii) the amount that would be distributed to such Partner
pursuant to Sections 4.1 and 4.2.3 if the Partnership then sold all of its
assets remaining after such Disposition and the distribution for the proceeds of
such Disposition for their adjusted tax basis (or adjusted book basis in the
case of Revalued Property) and distributed the proceeds therefrom and its
reserves (net of debt repayments) to the Partners pursuant to Sections 4.1 and
4.2.3; and
3.3.2.2 Second, after giving effect to the allocations made
pursuant to
Section 3.3.2.1, any balance among the Partners in proportion to the Partners'
respective Funding Proportions.
3.3.3 RULES OF CONSTRUCTION.
3.3.3.1 For purposes of applying Section 3.3 as a result
of a
Disposition, a Partner's Capital Account balance shall be deemed to be increased
by such Partner's share of Partnership Minimum Gain and Partner Nonrecourse Debt
Minimum Gain remaining after such Disposition as determined under the
Regulations under Code Section 704(b).
3.3.2.2 Except as is otherwise provided in this Article 3, an
allocation of Partnership taxable income or taxable loss to a Partner shall be
treated as an allocation to such Partner of the same share of each item of
income, gain, loss and deduction that has been taken into account in computing
such taxable income or taxable loss.
3.4 MINIMUM GAIN CHARGEBACK AND QUALIFIED INCOME OFFSET.
3.4.1 NO IMPERMISSIBLE DEFICITS. Notwithstanding any other
provision of this Agreement, taxable loss or items of deduction (as computed for
book purposes) shall not be allocated to a Partner to the extent that the
Partner has or would have, as a result of such allocations, an Adjusted Capital
Account Deficit. Any taxable loss or items of deduction (as computed for book
purposes) which otherwise would be allocated to a Partner, but which cannot be
allocated to such Partner because of the application of the immediately
preceding sentence, shall instead be allocated to the other Partners.
3.4.2 QUALIFIED INCOME OFFSET. In order to comply with the
"qualified income offset" requirement of the Regulations under Code Section
704(b), and notwithstanding any other provision of this Agreement to the
contrary except Section 3.4.3 below, in the event a Partner for any reason
(whether or not expected) has an Adjusted Capital Account Deficit, items of
Profits and Gain on Disposition (consisting of a pro rata portion of each item
of
16
income comprising the Partnership's Profits and Gain on Disposition, including
both gross income and gain for the taxable year, all as computed for book
purposes) shall be allocated to such Partner in an amount and manner sufficient
to eliminate as quickly as possible the Adjusted Capital Account Deficit.
3.4.3 MINIMUM GAIN CHARGEBACK. In order to comply with the
"minimum gain chargeback" requirements of Regulations Sections 1.704-2(f)(1) and
1.704-2(i)(4), and notwithstanding any other provision of this Agreement to the
contrary, in the event there is a net decrease in a Partner's share of
Partnership Minimum Gain and/or Partner Nonrecourse Debt Minimum Gain during a
Partnership taxable year, such Partner shall be allocated items of income and
gain (as computed for book purposes) for that year (and if necessary, other
years) as required by and in accordance with Regulations Sections 1.704-2(f)(1)
and 1.704-2(i)(4) before any other allocation is made.
3.5 OTHER TAX ALLOCATION PROVISIONS.
3.5.1 INCOME CHARACTERIZATION. For purposes of determining the
character (as ordinary income or capital gain) of any Gain on Disposition
allocated to the Partners pursuant to Section 3.3 or 3.4, such portion of the
taxable income of the Partnership allocated pursuant to such Sections which is
treated as ordinary income attributable to the recapture of depreciation shall,
to the extent possible, be allocated among the Partners in the proportion which
(i) the amount of depreciation previously allocated to each Partner bears to
(ii) the total of such depreciation allocated to all Partners. This Section
3.5.1 shall not alter the amount of allocations among the Partners pursuant to
Section 3.3 but merely the character of income so allocated.
3.5.2 CHANGE IN RESIDUAL PERCENTAGES. Notwithstanding the
foregoing, in
the event any Partner's Residual Percentage changes during a fiscal year for any
reason, including the Transfer of any interest in the Partnership or an
adjustment of the Partners' Residual Percentages hereunder, the allocations of
taxable income or loss under this Article 3, and distributions, shall be
adjusted as necessary to reflect the varying interests of the Partners during
such year using an interim closing of the books method as of the date of such
change, or such other method as is reasonably Approved by the Partners.
3.5.3 MANDATORY ALLOCATIONS -- SECTION 704(C) AND PARTNER
NONRECOURSE DEBT.
17
3.5.3.1 Notwithstanding the foregoing, (i) in the event Code
Section 704(c) or Code Section 704(c) principles applicable under Regulations
Section 1.704-1(b)(2)(iv) require allocations of income or loss of the
Partnership in a manner different than that set forth above, the provisions of
Code Section 704(c) and the Regulations thereunder shall control such
allocations among the Partners; and (ii) all tax deductions and taxable losses
of the Partnership (as computed for book purposes) that, pursuant to Regulations
Section 1.704-2(i), are attributable to a Partner Nonrecourse Debt for which a
Partner (or a Person related to such Partner under Treasury Regulations Section
1.752-4(b)) bears the economic risk of loss (within the meaning of Regulations
Section 1.752-2) shall be allocated to such Partner as required by Regulations
Section 1.704-2(c).
3.5.3.2 Any item of income, gain, loss and deduction with
respect to any property (other than cash) that has been contributed by a Partner
to the capital of the Partnership or which has been revalued for Capital Account
purposes pursuant to Regulations Section 1.704-1(b)(2)(iv) and which is required
or permitted to be allocated to such Partner for income tax purposes under Code
Section 704(c) so as to take into account the variation between the tax basis of
such property and its fair market value at the time of its contribution or at
the time of its revaluation for Capital Account purposes pursuant to Regulations
Section 1.704-1(b)(2)(iv) (such contributed or revalued property, including the
El Segundo Land, is referred to as "Revalued Property") shall be allocated
solely for income tax purposes in the manner so required or permitted under Code
Section 704(c) using the "traditional method" described in Regulations Section
1.704-3(b) (or any successor Regulation), such allocations to be made as shall
be reasonably Approved by the Partners; PROVIDED, HOWEVER, that curative
allocations consisting solely of the special allocation of gain or loss upon the
sale or other disposition of the Revalued Property shall be made in accordance
with Regulations Section 1.704-3(c) to the extent necessary to eliminate any
disparity, to the extent possible, between the Partners' Capital Accounts and
tax capital accounts attributable to such property; and FURTHER PROVIDED,
however, that any other method allowable under applicable Regulations may be
used in connection with any Revalued Property as shall be Approved by the
Xxxx-Xxxx Limited Partner. Allocations under this Section 3.5.3.2 are solely
for purposes of federal, state and local taxes and shall not affect, or in any
way be taken into account in computing, any Partner's Capital Account or share
of Profit, Loss, Gain or Loss on Disposition or other items or distributions
under any provision of this Agreement. Notwithstanding anything in this
Agreement to the contrary, the determination of Gross Asset Value for any asset
contributed to the Partnership, distributed from the Partnership or any other
Revalued Property shall be as Approved by the Partners or as determined pursuant
to the appraisal proceeding described in Section 5.10(iii). The Gross Asset
Value of the El Segundo Land is set forth in Section 2.1.1(b).
3.5.4 GUARANTEE OF PARTNERSHIP INDEBTEDNESS. Except for
arrangements expressly described in this Agreement (including loans described in
Section 2.2.2 or Section 2.4), and except for any guaranties issued by the
Managing General Partner and its Affiliates in connection with financing of the
Partnership (the "Managing General Partner Guaranties"),
18
no Partner shall enter into (or permit any Person related to the Partner to
enter into) any arrangement with respect to any liability of the Partnership
that would result (for any reason other than the general liability of a General
Partner for the liabilities of the Partnership) in such Partner (or a Person
related to such Partner under Regulations Section 1.752-4(b)) bearing the
economic risk of loss (within the meaning of Regulations Section 1.752-2) with
respect to such liability unless such arrangement has been Approved by the
Partners or is otherwise permitted by this Agreement. This Section 3.5.4 shall
not prohibit any General Partner, Limited Partner or Affiliate of a Partner
electing to participate therein from making a loan described in Section 2.2.2 or
Section 2.4. To the extent a Partner is permitted to guarantee the repayment of
any Partnership indebtedness under this Agreement, each of the other Partners
shall be afforded the opportunity to guarantee such Partner's pro rata share of
such indebtedness, determined in accordance with the Partners' respective
Funding Proportions. If (a) a loan is to be made to the Partnership or any
Investment Entity, (b) such loan is guaranteed by any Partners or their
Affiliates (which guaranty shall occur only upon the Approval of such Partner),
(c) a Partner or an Affiliate of a Partner is required to pay, and pays, money
on account of such guaranty (including payments made pursuant to the Managing
General Partner Guaranties), and (d) the Partner making (or whose Affiliate
made) such payments is entitled to be indemnified by the Partnership with
respect to such payments under Section 5.5.2 and, after liquidating the
Partnership's assets in order to satisfy the indemnity contained in
Section 5.5.2, there are insufficient proceeds to entirely satisfy the indemnity
obligation of the Partnership to such Partner or such Affiliate with respect to
such payments, then the other Partners (the "Recontributing Partners") shall be
required to make Capital Contributions to the Partnership, within ten (10)
Business Days after receiving notice requesting reimbursement from the Partner
making (or whose Affiliate made) such payments, which notice may be given at any
time after the events described in clauses (a) through (d) of this Section 3.5.4
have occurred (or, if later, the Determination Date described in Section 5.9
with respect to such reimbursement), in the amount necessary for (i) the Partner
(and its Affiliates) making such payments, and (ii) the Recontributing Partners,
to bear the portion of such payments that has not been reimbursed under
Section 5.5.2 ("Unreimbursed Payments") in the "Appropriate Sharing Ratio"
(defined below). In no event shall a Partner be required to make Capital
Contributions pursuant to this Section 3.5.4 in excess of the aggregate amount
distributed to the Recontributing Partner pursuant to Sections 4.1.1 and 4.2.3
(but not distributions made pursuant to Section 4.1.2 in payment of
Undistributed Highridge Subordinated Contributions or Undistributed Highridge
Subordinated Return). Any such Capital Contributions so made shall immediately
be distributed to the Partner who made, or whose Affiliate made, such payments.
The Appropriate Sharing Ratios of the Partners with respect to
Unreimbursed Payments shall be determined as follows:
3.5.4.1 With respect to the portion of the Unreimbursed
Payments that does not exceed the aggregate amounts distributed to the Partners
for all periods pursuant to Sections 4.1.1(d), (e) and (f) (but not in payment
of Undistributed Highridge Subordinated
19
Contributions or Undistributed Highridge Subordinated Return pursuant to the
preferential distribution thereof described in Section 4.1.2), such Appropriate
Sharing Ratio of each Partner shall be the percentage of such distributions so
received by such Partner; and
3.5.4.2 With respect to the portion of the Unreimbursed
Payments exceeding the aggregate amounts distributed to the Partners for all
periods pursuant to Sections 4.1.1(d), (e) and (f) (but not in payment of
Undistributed Highridge Subordinated Contributions or Undistributed Highridge
Subordinated Return pursuant to the preferential distribution thereof described
in Section 4.1.2), such Appropriate Sharing Ratio of each Partner shall be such
Partner's Funding Proportion.
3.5.5 REFERENCES TO REGULATIONS. Any reference in this Agreement
to a provision of final, proposed and/or temporary Regulations shall, in the
event such provision is modified or renumbered, be deemed to refer to the
successor provision as so modified or renumbered, but only to the extent such
successor provision applies to the Partnership under the effective date rules
applicable to such successor provision or the Partners otherwise so reasonably
Approve under applicable elections contained in such Regulations.
3.5.6 TAX DEFINITIONS.
3.5.6.1 "NONRECOURSE DEDUCTIONS" has the meaning set forth in
Regulations Section 1.704-2(c). The amount of Nonrecourse Deductions for a
Partnership Accounting Year equals the excess, if any, of the net increase, if
any, in the amount of Partnership Minimum Gain during that fiscal year, over the
aggregate amount of any distributions during that fiscal year of proceeds of a
Nonrecourse Liability that are allocable to an increase in Partnership Minimum
Gain, determined according to the provisions of Regulations Section 1.704-2(c).
20
3.5.6.2 "NONRECOURSE LIABILITY" has the meaning set forth in
Regulations Section 1.704-2(b)(3).
3.5.6.3 "PARTNER NONRECOURSE DEBT 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, determined in accordance with Regulations Section
1.704-2(i)(2).
3.5.6.4 "PARTNER NONRECOURSE DEBT" has the meaning for
such term set forth in Regulations Section 1.704-2(b)(4).
3.5.6.5 "PARTNER NONRECOURSE DEDUCTIONS" has the meaning
for such term set forth in Regulations Section 1.704-2(i). The amount of
Partner Nonrecourse Deductions with respect to a Partner Nonrecourse Debt for a
Partnership Accounting Year equals the excess, if any, (i) of the net increase,
if any, in the amount of the Partnership Minimum Gain attributable to such
Partner Nonrecourse Debt during such Partnership Accounting Year, over (ii) the
aggregate amount of any distributions during such year to the Partner that bears
the economic risk of loss for such Partner Nonrecourse Debt to the extent such
distributions are from proceeds of such Partner Nonrecourse Debt and are
allocable to an increase in Partner Nonrecourse Debt Minimum Gain attributable
to such Partner Nonrecourse Debt, determined according to the provisions of
Regulations Section 1.704-2(i).
3.5.6.6 "PARTNERSHIP MINIMUM GAIN" has the meaning
ascribed to such term in Regulations Section 1.704-2(d)(1) (and includes the
Partnership's share of the Partnership Minimum Gain of any Investment Entity).
3.6 INTENT OF ALLOCATIONS. The parties intend that the foregoing tax
allocation provisions of this Article 3 shall produce final Capital Account
balances of the Partners that would permit liquidating distributions, if such
distributions were made in accordance with final Capital Account balances
(instead of being made in the order of priorities set forth in Sections 4.1 and
4.2.3), to be made (after unpaid loans and interest thereon, including those
owed to Partners have been paid) in a manner identical to the order of
priorities set forth in Sections 4.1. and 4.2.3. To the extent that the tax
allocation provisions of this Article 3 would fail to produce such final Capital
Account balances, (i) such provisions shall be amended by the Partners if and to
the extent necessary to produce such result and (ii) taxable income and taxable
loss of the Partnership for prior open years (or items of gross income and
deduction of the Partnership for such years) shall be reallocated among the
Partners to the extent it is not possible to achieve such result with
allocations of items of income (including gross income) and deduction for the
current year and future years, as reasonably Approved by the Partners. This
Section 3.6 shall control notwithstanding any reallocation or adjustment of
taxable income, taxable loss, or items thereof by the Internal Revenue Service
or any other taxing authority.
3.7 BASIS ELECTIONS. In the event of a transfer of all or any part of a
Partner's interest in the Partnership, the Partnership shall elect to adjust the
basis of the Partnership's assets under Code Section 754 if reasonably Approved
by the Partners. The transferor or
21
transferee of a Partnership interest shall pay all costs of preparing and filing
all instruments or documents necessary to effectuate such election if made.
3.8 GENERAL ALLOCATION RULES. The General Partners shall cause the Profit
and Loss of the Partnership and Gain or Loss on Disposition be allocated by the
Partnership's accountants with respect to each Partnership Accounting Year (or
part thereof) as of the end of, and within ninety (90) days after the end of,
such year, or as soon thereafter as is practically possible. All Profit and
Loss and Gain or Loss on Disposition shall be allocated to the Partners shown on
the records of the Partnership to have been Partners as of the last day of the
Partnership Accounting Year for which such allocation is to be made, except
that, if a Partner sells or exchanges its interest in the Partnership or
otherwise is admitted as a substituted Partner, the Profit or Loss and Gain or
Loss on Disposition shall be allocated between the transferor and the transferee
by taking into account their varying interests during the Partnership Accounting
Year in accordance with Code Section 706(d), using the interim closing of the
books method or such other method as shall be reasonably Approved by the
Partners.
3.9 SHARING OF PARTNERSHIP NONRECOURSE DEBT AND NONRECOURSE DEDUCTIONS.
Throughout the term of the Partnership, the nonrecourse debt of the Partnership
(other than Partner Nonrecourse Debt) and the Nonrecourse Deductions of the
Partnership shall be allocated for tax purposes among the Partners in accordance
with their respective Funding Proportions. To the extent that any Partner's
share of such nonrecourse debt as so specified exceeds the amounts referred to
in Regulations Sections 1.752-3(a)(1) and (2), it is intended that the foregoing
shares shall be viewed and treated as reasonably consistent with allocations
(which have substantial economic effect) of some significant item of partnership
income or gain within the meaning of Regulations Section 1.752-3(a)(3).
3.10 ADJUSTMENT OF GROSS ASSET VALUE. Gross Asset Value, with respect to
any asset, shall be the adjusted basis for federal income tax purposes of that
asset, except as follows:
3.10.1 The initial Gross Asset Value of any asset contributed by a
Partner to the Partnership shall be the fair market value of the asset on the
date of the contribution, as reasonably Approved by the Partners. The Gross
Asset Value of the El Segundo Land is set forth in Section 2.2.1(b). The Gross
Asset Value of any Pre-Formation Property is set forth in Section 2.1.2.2.
3.10.2 The Gross Asset Values of all Partnership assets shall be
adjusted to equal the respective fair market values of the assets, as reasonably
Approved by the Partners (subject to Section 5.10(iii)):
3.10.2.1 If the Partners reasonably Approve that an adjustment
is necessary or appropriate to reflect the relative economic interests of the
Partners in the Partnership, as a result of (i) the acquisition of an additional
interest in the Partnership by any new or existing Partner in exchange for more
than a DE MINIMIS capital contribution; or (ii) the
22
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
3.10.2.2 As of the liquidation of the Partnership within the
meaning of Regulations Section 1.704-1(b)(2)(ii)(g).
3.10.3 The Gross Asset Value of any Partnership asset
distributed to any Partner shall be the gross fair market value of the asset on
the date of distribution as reasonably Approved by the Partners (subject to
Section 5.10(iii)), less any liabilities assumed by the distributee Partner or
to which such asset is subject as of the time of distribution.
3.10.4 The Gross Asset Values of Partnership assets shall be
increased or decreased to reflect any adjustment to the adjusted basis of the
assets under Code Section 734(b) or 743(b), but only to the extent that the
adjustment is taken into account in determining Capital Accounts under
Regulations Section 1.704-1(b)(2)(iv)(m), provided that Gross Asset Values shall
not be adjusted under this Section 3.10.4 to the extent that the Partners
reasonably Approve that an adjustment under Section 3.10.2 is necessary or
appropriate in connection with a transaction that would otherwise result in an
adjustment under this Section 3.10.4.
After the Gross Asset Value of any asset has been determined or
adjusted under Section 3.10.1, 3.10.2 or 3.10.4, Gross Asset Value shall be
adjusted by the depreciation taken into account with respect to the asset for
purposes of computing Profits or Losses.
Section 8.3.8 contains special rules for valuing distributions of
property other than cash that is received by the Partnership in connection with
the disposition of Partnership (or Investment Entity) assets.
3.11 TAX PAYMENT LOANS. On or before April 15 of each year, the
Partnership shall, upon the written request of any Partner who is not a
Terminated Partner ("Borrowing Partner"), lend (to the extent the Partnership
has available funds, determined prior to making distributions for the preceding
calendar year) (a "Tax Payment Loan") to the Borrowing Partner an amount equal
to the lesser of (i) the excess of (a) the Borrowing Partner's allocation of
Profits (computed without regard to tax-exempt income), Gain on Disposition (as
recomputed for tax purposes with reference to adjusted tax basis) and other
items of taxable income of the Partnership for the preceding calendar year,
reduced by the Borrowing Partner's allocation of Losses (computed without regard
to tax- exempt income), Loss on Disposition (as recomputed for tax purposes with
reference to adjusted tax basis) and other tax deductible items of the
Partnership for the preceding calendar year, multiplied by the Maximum Tax Rate,
over (b) the Borrowing Partner's distributions from the Partnership for such
preceding calendar year; or (ii) the excess of (a) the Borrowing Partner's
cumulative allocations of Profits (computed without regard to tax-exempt
income), Gain on Disposition (as recomputed for tax purposes with reference to
23
adjusted tax basis) and other items of taxable income of the Partnership from
the Agreement Date through the end of the preceding calendar year, reduced by
the Borrowing Partner's cumulative allocation of Losses (computed without regard
to tax-exempt income), Loss on Disposition (as recomputed for tax purposes with
reference to adjusted tax basis) and other tax deductible items of the
Partnership from the Agreement Date through the end of the preceding calendar
year, multiplied by the Maximum Tax Rate applicable to such allocations, over
(b) the sum of (x) the Borrowing Partner's cumulative distributions from the
Partnership from the Agreement Date through the end of the preceding calendar
year (net of repayments thereof under Section 4.3.2) and (y) the outstanding
balance(s) of all the unpaid Tax Payment Loans to such Borrowing Partner. A
copy of any request for a Tax Payment Loan shall be given by the requesting
Partner to the other Partner. Such loan shall bear interest at an annual rate
equal to the lesser of (1) ten percent (10%) per annum, or (2) the maximum
interest rate permitted by law, and shall be repayable both (A) out of future
distributions to the Borrowing Partner (such payment to be made by withholding
such distributions, with such distributions being deemed to have been
distributed to the Borrowing Partner and then paid by the Borrowing Partner to
the Partnership), and (B) if earlier, upon the liquidation of the Partnership or
upon demand following the Borrowing Partner's ceasing for any reason to be a
Partner hereunder, which payments shall be made from (x) the distributions
otherwise payable to such Partner in connection with the liquidation (such
amounts being deemed to have been distributed to such Partner and then paid by
such Partner to the Partnership) and (y) to the extent such distributions are
insufficient, from such Partner's other assets. If Tax Payment Loans are made
to any of the Highridge Partners, each of Xxxx X. Xxxx and Xxxxxx X. Xxxxxxxxx
shall be personally and severally (but not jointly) liable for the payment of
fifty percent (50%) of (I) the unrepaid balance of any such Tax Payment Loan
made to the Highridge Partners after applying clauses (A) and (B) of the
preceding sentence of this Section 3.11 for all periods, plus (II) the costs of
collection, including reasonable attorneys fees and expenses. Payments shall
first be applied to unpaid interest and then principal. Tax Payment Loans made
to a Borrowing Partner shall be full recourse loans to such Borrowing Partner
and shall be evidenced by promissory notes in form Approved by the Partners. To
the extent an allocation of Profits, Gain on Disposition or other items of
taxable income to a Borrowing Partner with respect to which a Tax Payment Loan
is to be made are attributable to one or more Investment Entities and the
Partnership does not otherwise have sufficient funds to make any Tax Payment
Loan requested by such Borrowing Partner, the Partnership shall seek to borrow
from the Investment Entities the necessary amounts (each such loan an
"Investment Entity Tax Loan"). The Partners shall use reasonable efforts to
cause each Investment Entity Agreement, including those with third parties, to
provide for the making of Investment Entity Tax Loans to the Partnership to the
extent required. Each Investment Entity Tax Loan shall bear interest at the
same rate as a Tax Payment Loan and shall be repayable at the same time as the
related Tax Payment Loan is repayable above, with payments first being applied
to interest and then principal and paid by the Partnership to the appropriate
Investment Entity. Except as provided in this Section 3.11, in no event shall
the Partnership or any Investment Entity be required to borrow money or to sell
any asset in order to fund any Tax Payment Loan. Notwithstanding anything to
the contrary contained in this Section 3.11, no Tax Payment Loan shall be made
by the Partnership with respect to any calendar year without the Approval of the
Xxxx-Xxxx Limited Partner unless the Tax Payment Loan for such year is at least
$250,000.
3.12 APPROVALS RELATING TO TAX ISSUES.
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Notwithstanding anything to the contrary contained in this Agreement,
except as provided in this Section 3.12, during all periods except after the
Xxxx-Xxxx Limited Partner has become a Terminated Partner, all material tax
elections, other decisions relating to taxes and tax returns, require only the
reasonable Approval of the Xxxx-Xxxx Limited Partner unless it then is a
Terminated Partner, PROVIDED, HOWEVER, that Highridge GP (unless it is then a
Terminated Partner) shall reasonably Approve any settlement with the Internal
Revenue Service or any other tax authorities (whether under Section 5.4 or
otherwise), and any extension of the statute of limitations, with respect to the
Highridge Partners. Notwithstanding the other provisions of this Section 3.12,
and during all periods, the determination of Gross Asset Value for any property
shall require the reasonable Approval of the Partners, subject to the provisions
of Section 5.10(iii).
ARTICLE 4
LOAN REPAYMENTS AND
DISTRIBUTIONS
4.1 NET AVAILABLE CASH, NET MORTGAGE PROCEEDS AND CAPITAL RECEIPTS. The
General Partners shall cause the Partnership's accountants (i) at the end of
each quarter, to determine the amount of Net Available Cash and, (ii) upon the
occurrence of any event giving rise to Net Mortgage Proceeds or Capital
Receipts, to determine the amount of such Net Mortgage Proceeds and Capital
Receipts, if any. Subject to the Partnership's obligation, if any, to make the
Capital Equalization Distribution under Section 2.1.2.3, the distributions
described in Section 2.1.2.2 and 2.1.2.4, and to make Tax Payment Loans under
Section 3.11, all Net Available Cash, Net Mortgage Proceeds and Capital Receipts
for any period shall be distributed in the following order of priority, within
thirty (30) days after the end of each calendar quarter, after first repaying
any loans to the Partnership from the Partners under Sections 2.2.2.1 and 2.4
except as provided in this Section 4.1 (loans which have been outstanding the
longest shall be repaid first and if two or more Partners have loans which have
been outstanding for equal periods, repayment of such loans shall be made pro
rata, in proportion to such Partners' then respective loan balances, with
payments first repaying accrued but unpaid interest and then repaying
principal), and subject to the terms of Sections 4.2, 4.3 and 8.3.8 (and subject
to recontribution to the Partnership as provided in Section 4.3.2):
4.1.1 Prior to the El Segundo Valuation Date:
(a) First, distributions shall be made to the Xxxx-Xxxx Partners to
the extent of, and in proportion to, their respective Undistributed
Preferred Return;
(b) Next, the balance shall be distributed to the Highridge Partners
to the extent of, and in proportion to, their respective Undistributed
Preferred Return;
(c) Next, the balance shall be distributed to the Partners, pro rata,
to the extent of, and in proportion to, their respective Invested Capital;
25
(d) Next, the balance shall be distributed to the Highridge Partners
to the extent of, and in proportion to, their respective Undistributed
Highridge Subordinated Return;
(e) Next, the balance shall be distributed to the Highridge Partners
to the extent of, and in proportion to, their respective Undistributed
Highridge Subordinated Contributions; and
(f) Next, the balance shall be distributed to the Partners, pro rata,
in proportion to their respective Residual Percentages.
Notwithstanding the priority distributions contained in this Section
4.1.1, distributions shall be made to the Highridge Partners as provided in
Section 2.1.2.3 (which distributions shall be deemed to have been made pursuant
to this Section 4.1.1 to the extent, and in the manner, provided in Section
2.1.2.3).
4.1.2 From and after the El Segundo Valuation Date, distributions
shall continue to be made in the order of priority set forth in Section 4.1.1
except that the provisions of Sections 4.1.1 (d) and 4.1.1 (e) shall cease to
apply, and notwithstanding the first paragraph of this Section 4.1, prior to
making distributions in the order of priority set forth in Section 4.1.1,
distributions shall (except as provided in Sections 2.1.2.2, 2.1.2.3 and
2.1.2.4) first be made to the Highridge Partners, pro rata, to the extent of,
and in proportion to, their respective Undistributed Highridge Subordinated
Return and Undistributed Highridge Subordinated Contributions (with such
distributions being deemed to first pay Undistributed Highridge Subordinated
Return and then to repay Undistributed Highridge Subordinated Contributions).
Notwithstanding anything in this Agreement to the contrary, the Xxxx-Xxxx
Limited Partner shall have the option, exercisable by notice to Highridge GP
given at any time if accompanied by a check in the correct aggregate amount
payable to the Highridge Partners, to contribute to the Partnership (as
additional Capital Contributions) 80% of the sum of the then Undistributed
Highridge Subordinated Contributions and Undistributed Highridge Subordinate
Return, which contribution shall thereupon be distributed to the Highridge
Partners in payment of such amounts (at which time the Highridge Partners shall
be deemed to have contributed the remaining 20% thereof to the Partnership in
cash, as additional Capital Contributions, and to thereupon have received a
distribution thereof in full payment of the entire Highridge Undistributed
Subordinated Return and Highridge Undistributed Subordinated Contributions).
4.2 PROCEEDS AND DISTRIBUTIONS IN LIQUIDATION. Subject to Section 8.3.8,
the proceeds received by the Partnership in connection with the liquidation and
winding up of the Partnership shall be applied in the following order of
priority:
4.2.1 First, to the payment of creditors of the Partnership (other
than the repayment of any unpaid Partner loans) except secured creditors whose
obligations will be assumed or otherwise transferred on a liquidation of the
Partnership property or assets;
26
4.2.2 Next, to the payment of the expenses incurred in dissolution
and termination and then to the repayment of any unpaid Partner loans in the
same priority as is described in Section 4.1; and
4.2.3 The balance, if any, shall be distributed to the Partners in
the order of priority set forth in Sections 4.1.1 and 4.1.2.
4.3 GENERAL DISTRIBUTION RULES.
4.3.1 The timing and amount of all distributions shall be in
accordance with Sections 4.1, 4.2, 8.3.8, 8.5 and 8.6. All distributions of
cash shall be made to the Partners shown on the records of the Partnership to
have been Partners on the date of the distribution. All distributions, upon
request by a Partner, shall be made by wire transfer in immediately available
funds to such Partner's account specified in such request. Distributions of Net
Available Cash, Net Mortgage Proceeds and Capital Receipts made to a Partner
shall be deemed to be advances on account of such Partner's share of the
distributable amounts thereof. For purposes of this Agreement, the term
"distributable" with respect to such distributions shall mean the amount of such
distributions as finally determined pursuant to the provisions of this Agreement
by the Partnership's accountants for the Partnership Accounting Year in respect
of which they were made and for the term of the Partnership.
4.3.2 The Partnership's accountants shall determine whether there
has been an over-distribution to any Partner occurring by reason of a mistake at
the following times: (i) within one hundred twenty (120) days after the end of
each Partnership Accounting Year and (ii) cumulatively during the term of this
Agreement within One Hundred Twenty (120) days after any disposition of an
Investment by the Partnership or all or substantially all of the investments of
any Investment Entity. Any over-distribution to any Partner in respect of
either a Partnership Accounting Year or during the term of this Agreement shall
be repaid by such Partner to the Partnership and distributed to the Partner
which has received an under-distribution not later than thirty (30) days after
any Partner has given notice thereof to the other Partners, which notice shall
be given as soon as is practicable after the end of such Partnership Accounting
Year or such disposition of an Investment, as applicable. If not paid within
thirty (30) days of such notice, the amount of any over-distribution shall
thereafter accrue interest at the lesser of (i) fifteen percent (15%) per annum
or (ii) the highest rate, if any, that would be permitted by applicable law
under these conditions. Such returned over-distribution and any interest paid
with respect thereto as provided in this Section 4.3.2 shall be promptly
distributed by the Partnership to the Partners receiving any under-distribution
to the extent necessary to eliminate such under-distribution. Notwithstanding
anything to the contrary in this Agreement, the obligation of the Partner
receiving an over-distribution to return such over-distribution to the
Partnership and any interest thereon shall constitute a recourse obligation of
such Partner (but not to the partners, members, managers, officers or
shareholders of such Partner or its members or partners). Any over-distribution
returned to the Partnership shall have the same character as the character of
the corresponding, earlier distribution to the Partner which received such
over-distribution. To the extent that any Partner or its Affiliates receives
any commitment fee, finders fee or other compensation (that is not expressly
permitted by this Agreement) by reason of the Partnership's or an Investment
27
Entity's participation in an Investment or a Property, such fee or compensation
shall be deemed to be Net Available Cash of the Partnership when paid, and to
the extent such fee or compensation is received by such Partner or its
Affiliates and not by the Partnership, such fee or compensation shall be deemed
to be an over-distribution to such Partner under this Section 4.3.2 that must be
paid to the Partnership (any such Partner shall notify the other Partners of the
receipt thereof immediately upon receipt by it or its Affiliates).
4.4 SOURCE OF DISTRIBUTIONS. Except as provided in Section 4.3.2, each
Partner shall look solely to the assets of the Partnership for the return of its
Capital Contributions and its share of distributions and shall have no recourse
upon dissolution or otherwise against the other Partners except as provided in
this Agreement. No holder of an interest in the Partnership shall have any
right to receive any distributions except as provided in this Agreement or any
right to demand or receive property other than cash upon dissolution and
termination of the Partnership.
ARTICLE 5
MANAGEMENT; DUTIES AND POWERS OF THE MANAGING GENERAL PARTNER; RIGHTS AND DUTIES
OF MANAGING GENERAL PARTNER
5.1 MANAGEMENT OF BUSINESS; OFFICERS; PARTNER OBLIGATIONS; REIMBURSEMENTS;
MAJOR DECISIONS; RETAINED APPROVALS.
5.1.1 MANAGEMENT; POWERS. Subject to the Approval rights of the
Partners under this Agreement, the Partnership shall be managed by the Managing
General Partner, and no Limited Partner shall take part in the control of the
Partnership's business. The Managing General Partner of the Partnership shall
be Highridge GP unless and until replaced by a Co-General Partner as provided in
Section 7.9.5 (thereafter, such Co-General Partner shall be the Managing General
Partner). Except as otherwise provided in this Agreement (including the right
of the Xxxx-Xxxx Limited Partner to Approve Major Decisions under Section 5.1.5
and certain other Approvals granted to the Xxxx-Xxxx Limited Partner under this
Agreement), the Managing General Partner shall be responsible for supervising
and undertaking the business of the Partnership, implementing the supervision
procedures set forth on Exhibit J for employees of the Highridge Partners and
Affiliates of the Highridge Partners who are performing work relating to the
Partnership and the Properties, and shall make all decisions affecting the
day-to-day operations of the Partnership and the Investments and the Properties.
Except to the extent the Approval of the Partners, or the Approval of the
General Partners, or the Approval of a Xxxx-Xxxx Partner is expressly required
under this Agreement, no consent or Approval of any Limited Partner or
Co-General Partner shall be required with respect to any action or decision of
the Managing General Partner regarding Partnership or Investment Entity matters.
Whenever the Approval of the Partners is required, the Partners shall act
through their Authorized Representatives as provided in Section 1.12. No
Partner shall receive any compensation for serving as a General Partner or as
the Managing General Partner. Each Partner shall cause each of its Authorized
Representatives to devote as much time as is reasonably necessary to fulfill
such Partner's obligations under this Agreement.
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The Managing General Partner, at Partnership expense, shall be
responsible for obtaining and providing the Partners (within a reasonable time
after request therefor has been made by any Partner) with any information that
the Managing General Partner reasonably deems appropriate (or that the Xxxx-Xxxx
Partners have requested) with respect to the Partnership, Investment Entities,
Investments and Properties, conducting due diligence concerning proposed
Investments and Properties, negotiating the purchase on behalf of the
Partnership of any Investments or Properties that are Approved by the Partners
for acquisition, and supervising and implementing the acquisition, financing,
development, stabilization and marketing programs that have been Approved by the
Partners, all pursuant to the supervision procedures set forth on Exhibit J.
The Partners hereby Approve the acquisition and development of the El Segundo
Land and the Summit Ridge Land pursuant to the Approved Development Plans with
respect thereto that are described on Exhibit C, and each Partner shall use its
reasonable efforts to cause the Partnership and/or the Investment Entities to
obtain construction financing on each of such Properties as soon as possible
after the execution and delivery of this Agreement as necessary to implement
such Approved Development Plans (any Partner may propose such financing to the
other Partners for their Approval). The due diligence documents provided to the
Xxxx-Xxxx Partners and their Affiliates prior to the execution and delivery of
this Agreement with respect to the El Segundo Land are listed on Exhibit K. At
Partnership expense, the Highridge Partners shall provide to the Xxxx-Xxxx
Partners any additional information in the possession of the Highridge Partners
or their Affiliates concerning the El Segundo land within a reasonable time
after written request therefor is received from the Xxxx-Xxxx Limited Partner.
Each General Partner, in extension and not in limitation of the powers given to
it by law or this Agreement, shall have full power and shall have the
obligation, without the necessity of obtaining the Approval of any other Partner
(except as otherwise set forth in this Agreement), and at the expense of the
Partnership, to take all actions required to conduct the day-to-day operations
of the Partnership and, subject to the availability of Partnership funds and the
funding limitations of Section 5.1.3.5, implement the Major Decisions and other
decisions that have been Approved by the Partners and pay expenses of the
Partnership to the extent the Approval of the other Partners with respect
thereto is not required under this Agreement. The Managing General Partner
shall not have the power to implement any Major Decision unless such Major
Decision has been Approved by the Partners, as set forth in Section 5.1.6.2
hereof. The Managing General Partner shall negotiate all documents with respect
to Investment and Property transactions that are Approved by the Partners (or
are permitted to be entered into without such Approval as provided in this
Agreement), including contracts with surveyors, architects, governmental
authorities and others concerning entitlements, easements, surveying,
landscaping, insuring, zoning, construction, grading, improvements, and the
like, all leases of space in the Properties on behalf of any Investment Entity,
offers and terms of sale of the Partnership and Investment Entity assets, and
contracts for necessary goods or services or borrowings regarding the
Investments and Properties; all to the extent Approved by the Partners from time
to time to the extent such Approval is required pursuant to this Agreement. The
execution by any General Partner of any document shall be sufficient to bind and
shall be binding upon the Partnership for all purposes, and third parties shall
be entitled to rely on the authority of the Managing General Partner to take any
action on behalf of the Partnership. Notwithstanding the foregoing, (i) the
Managing General Partner shall not take any action requiring Approval of the
Partners, or the Approval of the General Partners, or the Approval of a
Xxxx-Xxxx Partner
29
under this Agreement unless the provisions of this Agreement concerning such
Approval have been satisfied, and (ii) except as otherwise provided in
Section 5.9, no Co-General Partner shall exercise any authority with respect to
the matters with respect to which authority and responsibility has been given to
the Managing General Partner hereunder unless and until (a) the Managing General
Partner has become a Terminated Partner or a Removal Default has occurred with
respect to the Managing General Partner (thereafter, the Xxxx-Xxxx Limited
Partner may cause any Co-General Partner appointed by it to become the Managing
General Partner and to assume such authority and responsibility as provided in
Section 7.9), or (b) a Performance Default has occurred with respect to the
Managing General Partner concerning an Investment or Property (thereafter, the
Xxxx-Xxxx Limited Partner shall have the rights described in Section 5.10(ii)
and Section 7.9.5 with respect to such Property). The Managing General Partner
(or a Co-Managing General Partner that has become the Managing General Partner
under Section 7.9) shall use its reasonable efforts to comply with all
provisions of this Agreement, and, at Partnership expense, to cause the
Partnership to comply with all applicable laws and regulations. The cost of
preparing any Investment Entity Agreement shall be a Partnership expense.
Subject to the other provisions of this Agreement including required
Approvals of the Partners under this Agreement, the Partnership, the General
Partners and the Partnership's officers appointed on its or their behalf under
Section 5.1.4.1 are hereby authorized:
5.1.1.1 Subject to the Approved Budget limitations of Article
5, to pursue any rights of the Partnership (and cause each Investment Entity to
pursue any rights of such Investment Entity) with respect to each Investment and
Property pursuant to any agreement to which it (or such Investment Entity) is a
party, and to own and operate any Investment or any other asset acquired by the
Partnership pursuant to the provisions of this Agreement, including taking the
actions described in Section 1.5;
5.1.1.2 To own the Investments (including Partnership
Interests) for investment purposes and to finance, sell, convey, assign,
transfer (including by contribution to a real estate investment trust or to a
partnership, limited liability Partnership or any other Entity in which a real
estate investment trust is a partner, member or owner of equity ownership
interests (collectively, a "REIT")) or mortgage the Investments (including the
Partnership Interests), any other asset of the Partnership or any of them, as
well as any personal property necessary, convenient or incidental to the
accomplishment of the purposes of the Partnership, all on terms as shall be
Approved by the Partners;
5.1.1.3 To acquire by purchase or lease, any real or personal
property that may be necessary, convenient or incidental to other the
accomplishment of the purposes of the Partnership, including Investments and
interests in Investment Entities, and to cause Investment Entities to do so;
5.1.1.4 To operate, maintain, improve, develop and lease any
assets acquired by the Partnership (and to cause Investment Entities to do so
with respect to assets acquired by them);
30
5.1.1.5 To cause the Partnership to take any and all actions
necessary convenient or appropriate as a general partner or limited partner of
any partnership or as a member and/or manager of any limited liability company
in which the Partnership has an interest and exercise all rights or powers
relating thereto and execute appropriate documents on behalf of the Partnership
in connection therewith;
5.1.1.6 To borrow money on behalf of itself or cause Investment
Entities to do so (whether secured or unsecured) and issue evidences of
indebtedness in furtherance of any or all of the purposes of the Partnership or
any Investment Entity, and to secure the same by mortgage, deed of trust, pledge
or other lien on any assets of the Partnership or any Investment Entity;
5.1.1.7 To borrow money on the general credit of the
Partnership or any Investment Entity (and to cause Investment Entities to do so)
for use in the Partnership or any Investment Entity business;
5.1.1.8 To enter into, perform and carry out contracts of any
kind, including contracts with Affiliates of any of the Partners, necessary to,
in connection with or incidental to the accomplishment of the purposes of the
Partnership or any Investment Entity;
5.1.1.9 To issue Funding Notices calling for additional Capital
Contributions in accordance with the provisions of this Agreement;
5.1.1.10 To enter into any kind of lawful activity and to
perform and carry out contracts of any kind necessary to or in connection with
or incidental to the accomplishment of the purposes of the Partnership, so long
as said activities and contracts may lawfully be carried on or performed by a
limited partnership under the laws of the states in which the Partnership is
qualified to do business. Each General Partner is hereby authorized to cause
the Partnership to execute and deliver all documents and instruments necessary
or appropriate, in the reasonable judgment of such General Partner, to close any
of the transactions that have been Approved by the Partners (or that do not
require the Approval of the Partners or the Approval of the General Partners).
Except as otherwise provided in this Agreement, no Partner shall cause the
Partnership to execute and deliver any acquisition, conveyance, loan or lease
documents without first obtaining the Approval of the Partners to the Material
terms of such document. The Material terms with respect to certain of the
entitlement, acquisition, development, and leasing documents for the Summit
Ridge Land and the El Segundo Land have been Approved by the Partners and are
contained in the Approved Development Plans referred to on Exhibit C. The
Material terms of any other document in connection with the acquisition,
entitlement, development, conveyance, loan or lease of a Property will be deemed
to have been Approved by the Partners if the actions described on Exhibit L
("Operating Approval Standards") have been Approved by the Partners with respect
to such Property. Notwithstanding anything to the contrary contained in this
Agreement, the Xxxx-Xxxx Limited Partner shall have the right to Approve the
final version of any acquisition, conveyance, loan or lease document to which
the Partnership or any Investment Entity is to become a party if the Xxxx-Xxxx
Limited Partner has specifically requested by notice to Highridge GP that it
Approve the final version of such document before it is entered into;
31
PROVIDED, HOWEVER, that the Managing General Partner may, without the Approval
of any Xxxx-Xxxx Partner being required, execute and deliver on behalf of the
Partnership or any Investment Entity any lease of space in a Property unless any
of the following applies (in which case, the Xxxx-Xxxx Limited Partner shall
have the right to Approve such lease): (a) the lease has a term of less than
five (5) years (determined without regard to renewal rights granted to the
tenant thereunder and with regard to early termination rights of the tenant
thereunder), (b) the lease has a term of greater than ten (10) years (including
any tenant renewal rights that are not exerciseable at market rates in effect at
the time of renewal), (c) the lease covers greater than 15% of the rentable
space in a Property or greater than 20,000 square feet of the rentable space in
a Property, (d) the lease rents are more than 5% below the budgeted rental rate
set forth in the most recent Approved Budget with respect to such Property, (e)
the lease provides for payment by the Partnership or an Investment Entity of
tenant improvements that are more than 5% above the permitted tenant improvement
amount parameters that have been Approved in advance by the Partners for such
Property (or, if no such tenant improvement parameters have been Approved in
advance by the Partners, the lease provides for such payment of tenant
improvements that are more than $30 per square foot of rentable space), (f) the
aggregate leasing commissions payable by the Partnership and Investment Entities
in connection with the lease are more than 5% above the leasing commission
parameters that have been Approved by the Partners (or if no such leasing
commission parameters have been Approved in advance by the Partners, more than
5% above prevailing market rate commissions then in effect for similar
properties in similar locations), or (g) the lease form is materially different
from the standard form of lease that has been Approved in advance by the
Partners for such Property; PROVIDED, HOWEVER, that once the terms of such
documents have been Approved by the Partners, any General Partner may cause the
Partnership to execute and deliver any such documents with such changes thereto
as shall be reasonably Approved by the General Partners, without further
Approval of the Partners being required unless such change adversely affects the
Partnership in a Material manner, and only one General Partner's execution of
such documents shall be required on behalf of the Partnership in order for such
documents to be binding on the Partnership. Third parties shall be entitled to
rely on the authority of any General Partner to execute and deliver any document
on behalf of the Partnership without the execution thereof by any other Partner
being required. For purposes of this Agreement, the term "Material" (or any
variation thereof) means any item that (i) would result in a difference to the
Partnership of at least $100,000 with respect to any such item, or at least
$500,000 in the aggregate for all such items, in each case for any 12-month
period, or (ii) would result in a change in the scope of any Property
development as set forth in an Approved Development Plan. All construction
contracts having payments exceeding $100,000 shall require competitive bids,
copies of which shall be submitted to the Xxxx-Xxxx Limited Partner for review
before any such contract is entered into; and
5.1.1.11 To enter into and to perform the Partnership's
obligations under any other agreement to which it becomes a party (and cause any
Investment Entity to do so).
5.1.2 COMPENSATION; REIMBURSEMENT. No compensation shall be
payable by the Partnership to any Partner or to an Affiliate of any Partner
unless provision for such compensation is made (a) in the Approved Development
Plans (including the Approved
32
Budgets and Approved Overhead Budgets) attached as Exhibit C that have been
Approved by the Partners, or (b) in any other subsequent Approved Development
Plan. Unless reimbursement is prohibited under Section 5.5 or another provision
of this Agreement, the Partnership shall reimburse each Partner for its actual
and reasonable out-of-pocket expenses incurred in connection with Partnership
business to the extent such Partner is authorized to take the action resulting
in such expenses and is not otherwise reimbursed with respect thereto under this
Agreement or pursuant to an Approved Development Plan, subject to Sections 2.3
and 5.5.
5.1.3 BUDGETS
5.1.3.1 ANNUAL OPERATING BUDGET; INVESTMENT BUDGETS; OVERHEAD
BUDGETS. The Managing General Partner shall include in each proposed
Development Plan a proposed budget in connection with each Property and related
Investment, including the reasonably anticipated cash receipts therefrom, and
the reasonably anticipated costs of owning and operating such Property and
Investment, including costs of acquisition, insurance, entitlement, zoning,
development, landscaping, easements, subdivision, grading, infrastructure,
surveying, advertising, governmental approvals, operation, development,
management, leasing (including tenant improvements to be funded by the
Partnership if Approved by the Partners), repair, maintenance and renovation of
the Property for each Partnership Accounting Year, and shall deliver the same to
the Xxxx-Xxxx Limited Partner for its review and Approval. Each such budget
shall contain the amount to be (i) expended from reserves with respect to each
Investment, and (ii) added to the reserves of the Partnership with respect to
each Investment, including reserves required by lenders to the Partnership. Each
such budget shall also forecast the amount and timing of distributions to the
Partnership with respect to each Investment for the period covered by such
budget. At least annually (within 30 days prior to year-end), the Managing
General Partner shall also prepare and submit to the Partners for Approval a
budget for the operation of the Partnership for the following year that covers
those projected costs, if any, of operating the Partnership to the extent the
same are not contained in the Approved Budgets in effect for the Investments and
Properties for such period (such budget to require the Approval of the Partners
before it becomes an Approved Budget). The initial Approved Partnership
operating budget is contained in the Approved Development Plans described on
Exhibit C. The Highridge Partners shall be entitled to receive non-accountable
overhead payments from the Partnership in connection with the services performed
by them, their Affiliates and the employees thereof for the benefit of the
Partnership and the Investment Entities with respect to the El Segundo Land and
the Summit Ridge Land (in full reimbursement of all of their internal costs with
respect thereto, and those of their Affiliates and employees and partners
thereof), payable in advance on the first day of each month in thirty (30) equal
monthly installments commencing as of January 1, 1998 (with the installments for
the months of January through April 1998 being payable upon the execution and
delivery of this Agreement by all of the Partners), equal (and limited in the
aggregate to) 2.5% of total development costs with respect thereto (the
"Overhead Payments") pursuant to the Approved Budget for such Properties (the
amount described in an Approved Budget for such Overhead Payments is referred to
as the "Approved Overhead Budget"). The obligation to make Overhead Payments
shall be a Partnership expense and shall be payable prior to making
distributions to Partners. The unpaid Overhead Payments that are payable to
33
the Highridge Partners shall be limited to actual cost reimbursement (excluding
the salary, benefits and other compensation of Xxxx X. Xxxx, Xxxxxx X. Xxxxxxxxx
and Xxxxxx X. Xxxxxxxxx) from and after the date on which any Highridge Partner
has become a Terminated Partner or has committed a Removal Default. The initial
Approved Budget (including the Approved Overhead Budget) for each of the El
Segundo Land and the Summit Ridge Land is contained in the Approved Development
Plans for such Properties that are described in Exhibit C.
5.1.3.2 APPROVED BUDGETS. Each Authorized Representative of the
Xxxx-Xxxx Limited Partner shall have a period of ten (10) Business Days after a
proposed budget is submitted to them (whether or not submitted as part of a
proposed Development Plan) to notify the Managing General Partner in writing (i)
whether such Authorized Representative, on behalf of the Xxxx-Xxxx Limited
Partner, Approves the proposed budget or (ii) of any revisions such
representative believes should be made to such proposed budget. A proposed
budget (or any proposed revision thereof) shall not be deemed to have been
Approved by the Xxxx-Xxxx Limited Partner unless actually Approved by at least
one Authorized Representative of the Xxxx-Xxxx Limited Partner within such
ten-day period. If at least one Authorized Representative of the Xxxx-Xxxx
Limited Partner so Approves a proposed budget (or a Development Plan in which
such budget is contained), such budget shall be deemed Approved by the Partners
and shall constitute an "Approved Budget" for the Partnership for the applicable
Partnership Accounting Year covered thereby. If within such ten (10) Business
Day period, the Xxxx-Xxxx Limited Partner does not Approve a budget for the
applicable Partnership Accounting Year with respect to any Investment or
Property, then the most recent Approved Budget for such Investment or Property
other than items in such budget consisting of additional investment outlays that
may be made at the discretion of the Partnership (such discretionary outlays are
referred to as "Discretionary Outlays"), shall continue as the Approved Budget
for the next Partnership Accounting Year with the following exceptions: (a) all
extraordinary items for the current Partnership Accounting Year shall be
deleted; and (b) Non-Discretionary Items for the upcoming Partnership Accounting
Year shall be included at the actual cost.
5.1.3.3 INITIAL BUDGET; SUPPLEMENTS. The initial Approved
Budgets are contained in the Development Plans described in Exhibit C. The
Managing General Partner shall cause the Partnership to prepare supplements or
revisions to each Approved Budget from time to time within a reasonable time
after it is reasonably likely that such Approved Budget will not be met or after
a request for such a supplement or revision is received by the Managing General
Partner from the Xxxx-Xxxx Limited Partner, or if the Managing General Partner
otherwise desires to do so, which supplements or revisions shall be submitted to
the Xxxx-Xxxx Limited Partner for Approval in the same manner as that which is
provided for the Approval of budgets under Section 5.1.3.2 (if and when so
Approved, such supplement or, revision shall become part of the Approved Budget
to which it relates).
5.1.3.4 DEVELOPMENT PLANS. The initial acquisition and
development plan with respect to the acquisition, development, renovation and
capital improvements, financing, stabilization and marketing currently Approved
for each of the El Segundo Land and the Summit Ridge Land is described on
Exhibit C (together with any other development
34
plan that has been Approved by the Partners from time to time, the "Development
Plans"). The Managing General Partner shall deliver to the Xxxx-Xxxx Limited
Partner (within a reasonable time after request therefor is made and the same
are available), for the Xxxx-Xxxx Limited Partner's Approval, all plans and
specifications and any schematic and conceptual presentations for the proposed
development of each Property, and shall also deliver to the Xxxx-Xxxx Limited
Partner within a reasonable time after request such other details and
information regarding the Partnership, Investment Entities, Investments and the
Properties as the Xxxx-Xxxx Limited Partner shall reasonably request from time
to time, including proposals as to the identity of architectural and engineering
firms, construction contractors, construction managers, property managers, and
other consultants to be used to implement the Subsequent Development Plan. No
architectural or engineering firm, construction contractor, construction manager
or property manager, shall be retained with respect to any Property without the
Xxxx-Xxxx Limited Partner's Approval. The Managing General Partner shall modify
and update any Development Plan on at least a quarterly basis, if necessary, and
submit such proposed modification or update to such Development Plan to the
Xxxx-Xxxx Limited Partner for its Approval in the same manner as provided in
Section 5.1.3.2 with respect to budgets. The Managing General Partner's
representatives shall meet with the Xxxx-Xxxx Limited Partner's representatives
no less frequently than monthly and at any other time reasonably requested by
the Xxxx-Xxxx Limited Partner (telephonically or in person) to discuss the
status of the Properties. In addition, the Managing General Partner shall
provide the Xxxx-Xxxx Limited Partner with a schedule of renovation and capital
improvement meetings (which shall be held weekly) and the Xxxx-Xxxx Limited
Partner shall have the right to participate in such meetings. The Managing
General Partner shall provide the Xxxx-Xxxx Limited Partner with a copy of any
minutes of such meetings and any materials distributed at such meetings,
promptly after such meeting.
5.1.3.5 PERMITTED EXPENDITURES. The Managing General Partner
shall not, without the Approval of the Xxxx-Xxxx Limited Partner, make any
expenditure of funds of the Partnership or an Investment Entity, or commit to
make any such expenditure, other than in response to an Emergency, except as
provided for in an Approved Budget (to the extent an expenditure is described in
an Approved Budget or is otherwise permitted without Approval under this
Section 5.1.3.5, it may be paid if the Partnership has sufficient available
funds, whether in reserves or otherwise, to pay such expenditure; and, except as
provided in Section 2.1.2, Funding Notices may be issued with respect thereto
only upon the Approval of the Xxxx-Xxxx Limited Partner); PROVIDED, HOWEVER, the
provisions of this Section 5.1.3 shall in no way limit a General Partner's
authority to cause the Partnership or an Investment Entity to pay (but not to
issue Funding Notices as necessary to do so unless permitted under Section
2.1.2) Emergency expenditures or Non-Discretionary Items when due that are
billed to or incurred by the Partnership or any Investment Entity in excess of
the amounts budgeted therefor; and PROVIDED, FURTHER, that the Managing General
Partner may cause the Partnership to incur up to 110% (less any contingency
percentage already contained in the Approved Budget) of the aggregate amount
budgeted for expenditures for any period in any Approved Budget (excluding
extraordinary expenditures such as acquisition cost and tenant improvements,
Overhead Payments and contingency amounts, contained in such Approved Budget)
without the further Approval of the Partners being required. Notice of
Emergency expenditures or actions shall be given by the General Partner making
such expenditures or
35
taking such actions to the other Partners as soon as practicable after such
expenditures are made or actions are taken. The General Partners shall use
reasonable commercial efforts not to permit the Partnership or any Investment
Entity to commit waste with respect to any Property.
5.1.4 EMPLOYEES; DUTIES OF THE MANAGING GENERAL PARTNER.
5.1.4.1 EMPLOYEES. The Partnership shall have no employees
unless otherwise Approved by the Partners. The internal compensation and
reimbursement costs incurred by the Highridge Partners with respect to any
Highridge Partners' employees or partners (or those of their Affiliates)
providing services to the partnership or the Investment Entities are intended to
be reimbursed through Overhead Payments made pursuant to Section 5.1.3.1 (and,
except as provided in Section 5.2(a), additional reimbursement to the Highridge
Partners and their Affiliates shall not be made with respect to internal
personnel and operating costs).
5.1.4.2 MANAGING GENERAL PARTNER DUTIES. The Managing
General Partner shall use its reasonable efforts, subject to the availability of
Partnership funds, to acquire the Investments and cause the Investment Entities
to acquire the Properties that have been Approved by the Partners for
acquisition (limited as of the Agreement Date to the El Segundo Land and the
Summit Ridge Land), and to take the other actions that are described in
Section 1.5 and 1.11 that have been Approved by the Partners, (ii) cause the
Major Decisions and other actions that have been Approved by the Partners to be
implemented, (iii) cause proposed Development Plans and budgets to be prepared
and submitted to the Partners under Sections 5.1.3 and 5.1.4 for Approval as
required pursuant to Section 5.1.6.2, (iv) cause the Partnership to timely issue
the reports and tax returns required under this Agreement and (v) undertake its
other obligations under this Agreement. No General Partner shall be required to
conduct the Partnership's day-to-day operations and implement Major Decisions as
such General Partner's sole and exclusive function, and any Partner and its
Affiliates may (and expect to) have other business interests and may (and expect
to) engage in other activities in addition to those relating to the Partnership,
without having or incurring any obligation to offer any interest in such
activities to the Partnership, any Investment Entity, or any Partner (or their
Affiliates). The Managing General Partner shall be obligated to devote, and
cause its Controlling Persons to devote, as much of their business time to the
Partnership's business as shall be reasonably required to meet the Managing
General Partner's obligations hereunder, which shall be a significant portion of
such Controlling Persons' business time.
From and after the Approval of any transaction or action with respect
to the Investments or Properties by the Partners, any General Partner shall have
the authority, without the further Approval of the Partners being required,
(a) to cause the Partnership to proceed to document the transaction with respect
to the Investments and Properties on terms that have been Approved by the
Partners in all Material respects as provided in (and to the extent required by)
Section 5.1.1.10, with such changes thereto as shall be reasonably be Approved
by the Partners, without further Approval of the Partners being required unless
such change affects the Partnership in a Material manner (as described in
Section 5.1.1.10), and (b) to cause the Partnership to execute and deliver, and
cause the Partnership to perform its
36
obligations under, the documents to be executed by the Partnership in connection
with such transaction (including the acquisition of Investments or Properties
pursuant to Acquisition Documents that have been Approved by the Partners),
subject to the conditions for doing so that were Approved by the Partners (to
the extent such Approval is required), the Approved Budget limitations of
Section 5.1.3.5 with respect thereto, and any restrictions on the General
Partners' authority that are contained in this Agreement and that may be
applicable from time to time.
5.1.5 MAJOR DECISIONS. The following are major decisions (the
"Major Decisions") requiring the Approval (or reasonable Approval, if so
indicated) of the Partners, except as otherwise provided in this Agreement;
PROVIDED, HOWEVER, that a Partner's Approval shall not be required after such
Partner has lost its Approval rights under Section 7.9 or another provision of
this Agreement except to the extent provided in Section 0.0.0.0:
5.1.5.1 Any act in contravention of this Agreement or extending
the term of the Partnership;
5.1.5.2 Any act which would make it impossible to carry on the
ordinary business of the Partnership, except the liquidation of the Partnership
under the circumstances permitted in Article 8, or the sale, exchange or other
disposition of any Partnership Interest or other Investment or any other
Partnership or Investment Entity assets that has been Approved by the Partners
or otherwise is permitted under this Agreement;
5.1.5.3 Any action which would cause the Partnership to become
an entity other than a Delaware limited partnership;
5.1.5.4 Changing the purposes of the Partnership;
5.1.5.5 Amending this Agreement;
5.1.5.6 Making in-kind distributions (except as provided in
Section 8.3.8), or causing any Investment Entity to take any action with respect
to any Investment Entity asset that would be a Major Decision if such action
were taken by the Partners or the Partnership with respect to a Partnership
asset;
5.1.5.7 Establishing or adjusting Gross Asset Value under
Section 3.10 for any contributed or distributed asset or other Revalued Property
(reasonable Approval only, subject to Sections 5.10(iii) and 8.3.8), or
Approving the terms of the tenancy-in-common agreement described in
Section 8.3.8;
5.1.5.8 Indemnification of any Person other than a Partner or
its Affiliates pursuant to Section 5.5.2 or otherwise as permitted by this
Agreement or as Approved by the Partners;
5.1.5.9 Except as provided in Sections 3.5.4, 3.11 and 4.3.2,
entering into any agreement (i) which would cause any Partner to become
personally liable on
37
or in respect of or to guarantee any indebtedness of the Partnership or
(ii) which is not nonrecourse to such Partner;
5.1.5.10 Causing the Partnership to redeem or repurchase all or
any portion of the interest of a Partner except as provided in Section 7.9, or,
except as otherwise provided in Section 5.1.1.10, causing the Partnership to
enter into any contract in connection with the acquisition, development, leasing
or disposition of any Investment that is not in all Material respects consistent
with the description thereof contained in an Approved Development Plan or which
has not otherwise been Approved by the Partners (subject to Section 5.1.1.10,
the Approved Budget limitations of Section 5.1.3.5, and the other provisions of
this Section 5.1.5, no Approval of the Partners shall be required for any
contract under which the aggregate amount payable by the Partnership or the
Investment entities will be less than $100,000 per year, other than
acquisitions, borrowings, leases, and dispositions of assets; in each case,
except to the extent provided in Section 5.1.1.10); or to borrow money from a
Partner or its Affiliates except pursuant to Sections 2.2.2 or 2.4;
5.1.5.11 Causing or permitting the Partnership to be merged with
any other entity; selling Partnership or Investment Entity assets for
consideration, including notes payable, or otherwise disposing of Partnership or
Investment Entity assets, including contributions to a REIT;
5.1.5.12 Causing or permitting the Partnership to make a loan
to, or enter into any contract with, any Partner or any Affiliate of a Partner,
other than Tax Payment Loans permitted under Section 3.11, unless the terms of
such loan or contract comply in all material respects with the parameters with
respect thereto that have been Approved by the Partners or are contained in an
Approved Development Plan;
5.1.5.13 Dissolving, terminating or liquidating the Partnership,
except as provided in Article 8 of this Agreement;
5.1.5.14 Disposing of any Property or Investment (or any portion
thereof) or permitting an encumbrance to be placed on Partnership or Investment
Entity assets;
5.1.5.15 Incur or pay costs related to the Partnership any
Investment or Property by or on behalf of the Partnership in excess of the
amounts permitted under Sections 2.3.1 and 5.1.3.5 except pursuant to an
Approved Budget;
5.1.5.16 Obtain any third-party loans (including an operating
line of credit) on behalf of the Partnership or an Investment Entity, or,
execute or deliver on behalf of the Partnership any guarantee or other agreement
whereby the Partnership is or may become liable for any obligations of any other
Entity;
5.1.5.17 Acquire any Property or Investment other than pursuant
to Approved Development Plans, or take any action on behalf of the Partnership
that is not within the scope of the Partnership purposes as set forth in
Sections 1.4 and 1.11;
38
5.1.5.18 Modify, prepay or refinance any indebtedness of the
Partnership, or any Investment Entity, or select any lenders to make loans to
the Partnership or any Investment Entity;
5.1.5.19 Make any distribution except as permitted under this
Agreement except in connection with the liquidation of the Partnership under
Article 8;
5.1.5.20 Commence, dismiss, terminate or settle any material
litigation matter, material condemnation claim, or any other matter or claim
(including an insurance claim) in connection with any Property exceeding an
aggregate for any Partnership Accounting Year of the greater of (a) $50,000 or
(b) 1% of the acquisition and development expenditures made by the Partnership
with respect to such Property;
5.1.5.21 Determine the terms of any participation (e.g.,
distribution and control issues) of third-party investors in the Partnership or
any Investment Entity;
5.1.5.22 Except as otherwise provided in Article 7, admit
additional or transferee Partners to the Partnership as substituted Partners or
enter into financing that participates in profits; or, except as provided in
Article 7, permit any Transfer of any interest in the Partnership to the extent
Approval of the Partners for such Transfer is required under this Agreement;
5.1.5.23 Confess any judgment against the Partnership or any
Investment Entity or cause the Partnership or any Investment Entity to file for
Bankruptcy or other relief from creditors;
5.1.5.24 Establish insurance requirements for the Partnership or
settle insurance claims in excess of the dollar limit in Section 5.1.5.20;
5.1.5.25 Establish or release reserves for use by the
Partnership except pursuant to an Approved Budget or as otherwise provided in
this Agreement (reasonable Approval only), or permitting (or requiring) any
Partner to make additional Capital Contributions to the Partnership except as
expressly provided in this Agreement or issue any Funding Notice except as
provided in Section 2.1.2.1(ii);
5.1.5.26 Except as provided in Section 5.1.4.2, voluntarily
deviate to a Material extent (as provided in Section 5.1.1.10) from the terms of
acquisition, disposition or other course of action with respect to any
Investment or Property (whether owned by the Partnership or a proposed
acquisition) that required the Approval of the Partners (regardless of whether
contained in an Approved Development Plan), except that, to the extent actions
are permitted to be taken hereunder in connection with an Emergency or an event
of Force Majeure and are not prohibited by contracts of the Partnership
(including contracts entered into in connection with the acquisition or
disposition of Partnership Assets), a General Partner may deviate from any
course of action Approved by the Partners as necessary to respond to such
Emergency or as is necessary as the result of such event of Force Majeure,
subject to the Approved Budget Limitations of Section 5.1.3.5;
39
5.1.5.27 Engage attorneys or for the Partnership or any
Investment Entity (which attorneys shall be selected upon the reasonable
Approval of the Partners). Price Waterhouse or another national accounting firm
Approved by the Xxxx-Xxxx Limited Partner shall be the Partnership's accountants
for all purposes, and the Partners hereby Approve the following as the initial
attorneys authorized to perform services for the Partnership and the Investment
Entities: Battle Xxxxxx LLP; Xxxx Xxxxxxxx, Esq.; Pircher, Xxxxxxx & Xxxxx;
Pryor, Cashman, Xxxxxxx & Xxxxx; Xxxxx, Xxxxxx & Xxxxxx; Xxxxx, Xxxxx & Xxxxxx;
and L. Xxxxx Xxxx, Esq.;
5.1.5.28 Approve the form of lease, tenant improvement allowance
or leasing commissions (except as provided in Section 5.1.1.10), project names
or any leasing agent for the Properties other than Highridge Partners or their
Affiliates as set forth in an Approved Development Plan or Approved Budget
(reasonable Approval only); or issue any press releases or otherwise speak with
the press concerning the terms of this Agreement (except that the Authorized
Representatives of a Partner may disclose the details of a Property acquisition,
development, financing, lease or disposition to the press after the same has
occurred or in connection with advertising a Property for lease or sale); or
5.1.5.29 Take any other action that is required to be Approved
by the Partners under this Agreement.
The enumeration of the foregoing rights shall not diminish or affect the
existence or exercise of other rights expressly granted to each of the Partners
under this Agreement. In the event of a deadlock in obtaining the Approval of
the Partners with respect to any Major Decision, the deadlock shall be resolved
as provided in Sections 5.10 and 5.11.
5.1.6 RETAINED APPROVALS; PROCEDURE FOR PARTNER REVIEW AND
APPROVAL.
5.1.6.1 RETAINED APPROVALS. Notwithstanding anything to the
contrary contained in this Agreement, after the loss of Approval rights by a
Partner under Section 7.9 (the "Non-Voting Partner"), the Non-Voting Partner
shall still retain Approval rights with respect to:
(a) The determination of Gross Asset Value for any
property (subject to Sections 5.10(iii) and 8.3.8);
(b) Any act in contravention of this Agreement or
extending the term of the Partnership;
(c) Any action which would cause the Partnership to
become an entity other than a Delaware limited liability Partnership;
(d) Changing the purposes of the Partnership;
(e) Amending this Agreement except as expressly
provided in this Agreement (but only to the extent such amendment would
materially and
40
adversely affect the Non-Voting Partner or its Affiliates, unless such
amendment is permitted to be made without the Non-Voting Partner's Approval
under Section 7.9);
(f) Indemnification of any Person other than a
Partner or its Affiliates pursuant to Section 5.5.2 or except as otherwise
permitted by this Agreement;
(g) Except as provided in Sections 3.11 and 4.3.2,
entering into any agreement (A) which would cause the Non-Voting Partner or
its Affiliates to become personally liable on or in respect of or to
guarantee any indebtedness of the Partnership or (B) which is not
nonrecourse to the Non-Voting Partner and its Affiliates;
(h) Causing the Partnership to redeem or repurchase
all or any portion of the interest of a Partner except as provided in
Section 7.9;
(i) Borrow money from a Partner or its Affiliates
except pursuant to Sections 2.2.2 or 2.4;
(j) Acquire any Investment or cause any Investment
Entity to acquire any Property, other than Investments and Properties that
were Approved by the Partners for acquisition prior to the Non-Voting
Partner losing its Approval rights with respect thereto under Section 7.9,
take any action on behalf of the Partnership that is not within the scope
of the Partnership purposes as set forth in Sections 1.5 and 1.11, or
permit any Investment Entity to take any act that would require the
Approval of the Non-Voting Partner under this Section 5.1.6.1 if taken by
the Partnership;
(k) Unless in compliance with the requirements of
Section 5.2, pay any salary, fees or other compensation to, or enter into
any contract with, any Affiliate of any Partner (but only with respect to
contracts that do not satisfy clauses (i) and (ii) of Section 5.2) or make
loans to any Partner other than Tax Payment Loans;
(l) Prepay any Partnership indebtedness except
(i) in connection with the disposition of any Investment or Property,
(ii) in connection with the liquidation of the Partnership, (iii) to the
extent such indebtedness is refinanced or (iv) in connection with
restructuring of Partnership indebtedness; or enter into any borrowing,
refinancing or modification of an existing borrowing other than on
commercially reasonable terms for the reasonable needs of the Partnership's
business; or entering into any participating financing if the Partners'
interests are not diluted pro rata by such participation;
(m) With respect to the substitution of a
transferee or additional Partner as a Partner, except as otherwise provided
in Section 7.9, the Non-Voting Partner shall have the right to Approve the
admission of any new Partner (other than pursuant to Section 7.9) to the
extent that the Non-Voting Partner's interest in the
41
Partnership is diluted by the admission of the new Partner on a basis that
is not pro rata with the dilution of the interests of all of the other
Partners of the Partnership; and
(n) Establish reserves for the Partnership, or make
expenditures from reserves, with respect to the Partnership or any
Investment Entity except as permitted by this Agreement, or issue any
Funding Notice except as provided in Section 2.1.2.1(ii).
5.1.6.2 APPROVAL PROCEDURE. Notice of the request for a
Partner's Approval of any matter for which such Approval is required pursuant to
this Agreement shall be delivered by the requesting Partner to each of the
Authorized Representatives of the other Partner, together with the requesting
Partner's summary and analysis of any matter for which such Approval is
requested and the requesting Partner's recommendations with respect to any
matter for which Approval is requested. Unless some other time is specified in
this Agreement, each Authorized Representative of such other Partner shall
approve or disapprove such matter by notice to the other Partner given within
ten (10) Business Days following delivery of such notice. Failure of any
Authorized Representative to timely respond by written notice (or orally, if
permitted under Section 1.12) to the requesting Partner, indicating Approval or
disapproval of such matter, shall be deemed withholding of the Approval by such
Authorized Representative of such matter for which Approval is requested. From
and after any such submission to such Authorized Representative, and continuing
until the matters addressed in such submission are Approved, each such
Authorized Representative shall, upon request to the Partner who has possession
thereof, be furnished promptly with access to or, if feasible, copies of such
additional pertinent information which become available to such Partner that are
requested by the Partner whose Approval has been sought. Notwithstanding
anything in this Agreement to the contrary, no Authorized Representative of a
Partner shall have the right to Approve any action if such Partner no longer has
Approval rights with respect to such issue under Sections 7.9 and 5.1.6.1.
Section 1.12 sets forth each Partner's Authorized Representatives and the
actions that constitute the granting of a Partner's Approval.
5.2 AFFILIATE TRANSACTIONS; EXCLUSIVITY; XXXX-XXXX PROPERTY MANAGEMENT
OPTION.
(a) AFFILIATE TRANSACTIONS. If all of the material terms thereof are
clearly identified and fully described in an Approved Development Plan or are
otherwise Approved by the Partners, any Partner or its Affiliates may provide
services, including property management services, accounting services,
construction services, legal or paralegal services (but only to the extent
permitted by law), office administration, and/or document control services, to
the Partnership and/or any Investment Entity, subject to the following
conditions: (i) the fees for such services must be no greater than the fees
charged generally by qualified, unaffiliated third-parties having comparable
expertise and performing similar services in the geographical area in which the
services are to be performed; and (ii) the other terms of the agreement pursuant
to which such services will be performed shall generally be no more onerous than
the terms of agreements used by qualified, unaffiliated third-parties having
42
comparable experience performing similar services in the geographical area in
which the particular services are to be rendered.
(b) EXCLUSIVITY. Notwithstanding anything in this Agreement to the
contrary, there shall be no restriction against the acquisition or ownership by
any Partner or its Affiliates of any asset, including any office project,
regardless of whether the same is competitive with a Property owned by the
Partnership or an Investment Entity.
(c) XXXX-XXXX PROPERTY MANAGEMENT OPTION. The Xxxx-Xxxx Limited
Partner has the option to elect to allow the Partnership to serve as the
property manager for any property in which such Partner or such Partner's
Affiliates have an interest (but which is not a Property owned by the
Partnership or any Investment Entity) pursuant to the terms of a management
agreement (the "Management Agreement") to be Approved by the Partners. If
significant lease-up or rehabilitation services are required to be rendered by
the Partnership in connection with a property for which such election has been
made, the Highridge Partners or their Affiliates shall be entitled to receive a
lease-up and rehabilitation fee equal to 10% of the Xxxx-Xxxx Limited Partner's
(or such Affiliate's) profit from such property after it has recovered its
investment therein plus a 10% cumulative annual return thereon (compounded
quarterly), but only if such fee is Approved by the Xxxx-Xxxx Limited Partner in
connection with the election to allow the Partnership to manage such property
and the terms of such payment are set forth in the Management Agreement.
5.3 REPORTING REQUIREMENTS; FINANCIALS; MEETINGS.
5.3.1 GOVERNMENTAL REPORTS; MEETINGS. The Managing General
Partner shall, at Partnership expense, use reasonable efforts to cause to be
prepared and timely filed with appropriate federal, state and foreign regulatory
and administrative bodies, all reports required to be filed with such entities
under then current applicable laws, rules and regulations, subject to the
reasonable Approval of the Partners, other than reports filed with local
government agencies in connection with the entitlement and development of a
Property (copies of which shall be furnished to the Xxxx-Xxxx Limited Partner
within a reasonable time after the Xxxx-Cali Limited Partner has requested a
copy thereof by notice to Highridge GP). Such reports shall be prepared on the
accounting or reporting basis required by such regulatory bodies. Each Partner
shall be provided with a copy of any such report. No meeting of the Partners
shall be required unless requested by any Partner upon notice to all Partners,
which notice may be given by any Partner at any time. All Partners shall be
given written notice of any meeting of the Partnership at least twenty (20) days
prior to any such meeting by the Partner requesting such meeting. Any meetings
shall be held at the record-keeping office of the Partnership or at any other
reasonably convenient location within the United States as the requesting
Partner may reasonably Approve and specify in such notice. The Partners may
adopt a course of conduct that provides for such meetings to be held
telephonically.
5.3.2 ACCESS; AUDIT. The Managing General Partner shall permit
any Partner to review and copy, during normal business hours at the office of
the Partnership, all Partnership financial records and information. Each
Partner shall have the right to have such
43
records and information audited at Partnership expense; PROVIDED, HOWEVER, if
such audit reveals material errors or omissions in such records and information
due to a Major Default by any Partner, such Partner's Partner Group shall
reimburse the Partnership for the expense of audit. The Managing General
Partner shall maintain (at the office of the Partnership) reports required or
otherwise prepared and delivered hereunder or under any Investment Entity
Agreement, copies of which shall be furnished to each Partner when available, at
the Partnership's expense, together with (upon request from any Partner) such
supplementary records and reports as are necessary to reflect the allocation
among the Partners of the tax items and distributions of the Partnership shown
on any reports furnished (or required to be furnished) to the Partners under
this Agreement.
5.3.3 FINANCIAL AND STATUS REPORTS. (a) The Managing General
Partner shall cause the following reports to be issued at Partnership expense:
(i) The Managing General Partner shall use reasonable efforts to cause to
be issued to the Partners annual financial reports, in reasonable detail, which
shall be prepared and audited by the Partnership's independent certified public
accountants at Partnership expense, by February 15 the following the close of
each year (including a balance sheet and income and expense statements, both on
an Investment-by-Investment basis and on a consolidated basis, showing sources
and uses of funds, cash on hand, distributions, changes in financial position,
tax information, Undistributed Preferred Return, Invested Capital, Undistributed
Highridge Subordinated Contributions, Undistributed Highridge Subordinated
Return, and unrepaid Partner loans on a Partner-by-Partner basis). Such
financial reports shall be prepared using GAAP, or such other method as shall be
Approved by the Xxxx-Xxxx Limited Partner from time to time upon reasonable
advance notice to the Managing General Partner;
(ii) The Managing General Partner shall use reasonable efforts to cause to
be issued to the Partners quarterly unaudited financial reports, in reasonable
detail, within twenty-five (25) days after the close of each calendar quarter
other than the fourth quarter of each year (commencing with the calendar quarter
ending on June 30, 1998), internally prepared by the Managing General Partner
and reviewed by the Partnership's accountants, including a balance sheet and
income and expense statements, both on an Investment-by-Investment basis and on
a consolidated basis (showing receipts on a tenant-by-tenant basis, and material
defaults, to the extent requested by the Xxxx-Xxxx Limited Partner upon
reasonable notice), sources and uses of funds, cash on hand, distributions,
changes in financial position, Undistributed Preferred Return, Invested Capital,
Undistributed Highridge Subordinated Contributions, Undistributed Highridge
Subordinated Return, and unrepaid Partner loans;
(iii) The Managing General Partner shall use reasonable efforts to
cause to be issued to the Partners a monthly income and expense statement, in
reasonable detail, internally prepared by the Managing General Partner on both
an Investment-by-Investment and consolidated basis within twenty (20) days after
the close of each month (including December), showing sources and uses of
Partnership funds and changes in the Partnership's financial position during
such month. In connection with preparing such monthly income and expense
statement, the Managing General Partner shall use commercially reasonable
efforts to review the data provided by third parties (including property
managers and accountants) that is to be
44
presented in such income and expense statement, such review to be commenced and
completed to the extent possible, after using commercially reasonable efforts to
do so, before the Managing General Partner furnishes such statement to the
Partners. If such review is not completed prior to furnishing such statement,
such review shall be completed as soon as is practicable thereafter (with notice
being given to the Partners by the Managing General Partner of any variance from
such statement that is discovered by the Managing General Partner in such
review); and
(iv) The Managing General Partner shall keep the Xxxx-Xxxx Limited Partner
reasonably apprised of pending due diligence, acquisition, construction,
leasing, marketing and disposition efforts with respect to proposed and owned
Investments and Properties within a reasonable time after any material new
development has occurred or the Xxxx-Xxxx Limited Partner requests an update;
and
(b) In preparing reports required under this Agreement, the Managing
General Partner may rely on information furnished by third parties (including
property managers and accountants) to the extent that it is reasonable to do so.
(c) Notwithstanding anything in this Agreement to the contrary, (i)
all Partnership and Investment Entity financials shall be prepared on the basis
required by the auditors for the Xxxx-Xxxx Limited Partner, and (ii) the
Partners shall make such amendments to this Agreement that reduce or eliminate
the rights (but not the obligations) of the Xxxx-Xxxx Partners, or add to or
increase the rights (but not the obligations) of the Highridge Partners, under
this Agreement as are reasonably requested by the Xxxx-Xxxx Limited Partner from
time to time in consultation with its auditors, in order to accommodate the
objectives of: (A) the Xxxx-Xxxx Limited Partner not being required to
consolidate with the Partnership for accounting purposes and (B) the Xxxx-Xxxx
Limited Partner being able to report its share of the Partnership's income and
losses using the equity method of accounting.
5.4 TAX MATTERS PARTNER; TAX RETURNS. The Managing General Partner is
hereby designated as the "Tax Matters Partner", as such term is defined in
Section 6231(a)(7) of the Code, and it shall serve as such at Partnership
expense with all powers granted to a tax matters partner under the Code, except
that the Managing General Partner shall not take any action as the Tax Matters
Partner (including entering into any negotiation or settlement with any taxing
authority, or extending the statute of limitations with respect to any
Partnership item) without the reasonable Approval of the Xxxx-Xxxx Limited
Partner. The Xxxx-Xxxx Limited Partner may elect to serve as the Tax Matters
Partner instead of the Highridge GP, effective upon notice from the Xxxx-Xxxx
Limited Partner to the Highridge GP which may be given at any time after the
Highridge GP ceases to be a General Partner or has committed a Performance
Default. The Partners' Approval rights with respect to Approving tax decisions
(including settlements and extending the statute of limitations) are set forth
in Section 3.12. Each Partner shall give prompt notice to each other Partner of
any and all notices it receives from the Internal Revenue Service (or any other
taxing authority) concerning the Partnership, including any notice of audit, any
notice of action with respect to a revenue agent's report, any notice of a
30-day appeal letter and any notice of a deficiency in tax concerning the
Partnership's federal, state or local income tax returns. At Partnership
expense, the Tax Matters Partner
45
shall furnish each Partner with status reports regarding any negotiation between
the Internal Revenue Service (or other taxing authority) and the Partnership
promptly after any material new development, and the Xxxx-Xxxx Limited Partner
shall be given sufficient advance notice by the Managing General Partner so that
it shall have the opportunity to participate, and permit its professional tax
advisers to participate, in person in all of such negotiations. The Tax Matters
Partner shall use its reasonable efforts to cause the Partnership's accountants
to prepare and file on a timely basis, with due regard to extensions (such
extensions to be applied for unless reasonably Approved to the contrary by the
Xxxx-Xxxx Limited Partner, all tax and information returns which the Partnership
may be required to file. No tax or information return shall be filed without
the reasonable Approval of the Xxxx-Xxxx Limited Partner. Drafts of the
Partnership's tax returns shall be submitted to the Xxxx-Xxxx Limited for review
and reasonable Approval at least thirty (30) days prior to the due date therefor
(determined with due regard for extensions). The Managing General Partner shall
cause the Partnership's accountants to prepare and deliver, at Partnership
expense, to each Partner on a timely basis an information reporting return (K-1)
reflecting each Partner's distributive share of all income, gain, loss,
deductions, allowances or credits of the Partnership for each Partnership
Accounting Year, as computed pursuant to Article 3. If there is a dispute as to
the content of the Partnership's or Investment Partnership's tax returns, such
returns shall be filed as directed by the Xxxx-Xxxx Limited Partner, with each
other Partner having the right to file an inconsistent position return with the
applicable taxing authority(ies).
5.5 INDEMNIFICATION AND LIABILITY OF THE PARTNERS. See Section 9.2 for
certain conventions concerning the extent to which the acts of Affiliates or
employees of a Partner or its Affiliates will not be taken into account for
purposes of this Section 5.5 in determining whether such Partner is liable (or
is not entitled to indemnification) with respect thereto.
5.5.1 No Partner shall be liable, responsible or accountable in
damages or otherwise to any of the other Partners or to the Partnership for any
act or omission performed or omitted by it on behalf of the Partnership, except
for a Major Default, gross negligence, and damages for a breach of this
Agreement by such Partner that is not cured within the time provided in
Section 9.2, or the breach by such Partner or its Affiliates of any agreement
with the Partnership or an Investment Entity that is not cured within the time
provided in such Agreement.
5.5.2 Except to the extent to the extent attributable to a Major
Default, gross negligence by a Partner or a Partner's Affiliates, a Partner's
breach of this Agreement that is not cured within the time provided in
Section 9.2, or the breach by such Partner or its Affiliates of any agreement
with the Partnership or an Investment Entity that is not cured within the time
provided in such Agreement, the Partnership shall indemnify and hold harmless
each Partner and its Affiliates (and their partners, shareholders, or members)
from and against any obligations, actual damages, penalties, actions, judgments,
suits, expenses, disbursements, losses, costs or liabilities of any kind or
nature whatsoever which may be imposed upon, incurred or asserted against such
Partner or its Affiliates (or their partners, shareholders, members and their
Affiliates), including reasonable attorneys' and paralegals' fees and court
costs, except to the extent the same are reimbursed to such Partner or its
Affiliates by insurance proceeds or indemnities from third parties, in
connection with, due to
46
or arising out of (i) such Partner's serving as a Partner (including serving as
the Managing General Partner or as a Co-General Partner of the Partnership), or
(ii) the execution and delivery by such Partner (or its Affiliates) of any
guarantee or payment or performance (including the General Partner Guaranties),
any completion agreement or guarantee, any hazardous or toxic substance
indemnity or guarantee or any other agreement Approved by the Partners (or
permitted to be entered into without such Approval) whereby such Partner or
Affiliate undertakes any monetary, performance or indemnification obligation on
behalf of the Partnership or any Investment Entity in connection with the
ownership, operation or financing of an Investment or Property.
5.5.3 Each Partner shall indemnify and hold harmless each other
Partner and the Partnership from and against any direct (and not consequential
or incidental) obligations, actual damages, penalties, actions, judgments,
suits, expenses, disbursements, losses, costs or liabilities (collectively, the
"Liabilities") incurred or paid by such other Partner, the Partnership or an
Investment Entity, or their Affiliates (to the extent such Liabilities are not
reimbursed by insurance proceeds or indemnities from third parties), to the
extent such Liabilities are caused by such Partner's (or its Affiliate's) Major
Default, gross negligence, or breach of this Agreement that is not cured within
the time provided in Section 9.2, or the breach by such Partner or its
Affiliates of any agreement with the Partnership or an Investment Entity that is
not cured within the time provided in such agreement.
5.5.4 Each Partner hereby grants to each of the other Partners and
the Partnership, as security for the performance of all obligations of such
Partner pursuant to this Agreement, a security interest in and to its interest
in the Partnership, pursuant to and in accordance with the provisions of the
Uniform Commercial Code of California, and agrees in the event such Partner is
finally adjudicated to be liable to the Partnership or another Partner for any
amount and fails, within thirty (30) days thereafter to pay the amount owed, the
non-defaulting Partner(s) and the Partnership shall each have and are hereby
granted all the rights, remedies and recourse afforded a secured party under the
Uniform Commercial Code of California, including foreclosing upon the defaulting
Partner's interest in the Partnership and selling such interest at public or
private sale or retaining such interest in accordance with the Uniform
Commercial Code of California. To evidence such security interest, each Partner
shall from time to time execute and deliver such documents as may be reasonably
requested by any other General Partner, including a financing statement (which
may be recorded or filed in accordance with applicable law) and continuation
statements. If the Partnership interest of a defaulting Partner is foreclosed
and sold or the interest retained as aforesaid, each non-defaulting Partner is
hereby authorized on behalf of the defaulting Partner and designated the
attorney-in-fact of the defaulting Partner to execute any and all documents and
take such other action as may be required to effectuate the sale and transfer of
the defaulting Partner's Partnership interest. Such authorization and
designation shall be deemed coupled with an interest and shall be irrevocable.
5.5.5 In any case where indemnity is sought by a Partner, such
Partner shall give notice of the request for indemnification to the Partnership
and the other Partners from whom the indemnity is required and give them the
opportunity to the extent reasonably
47
possible, to participate in the defense of the claim giving rise to the claim
for indemnity, all at Partnership expense.
5.5.6 All indemnity payments and reimbursements payable under this
Agreement to a Partner or an Affiliate of a Partner shall be treated as amounts
owed to a creditor of the Partnership, shall be paid in the ordinary course of
business, without regard to whether the Partnership has Net Available Cash, and,
shall be paid by the Partnership, PARI PASSU with other creditors of the
Partnership, in all cases prior to making distributions to Partners under
Sections 4.1 and 4.2. No Partner shall have any liability under this Agreement
for failing to take any action under this Agreement or any agreement with the
Partnership or an Investment Entity if (i) such Partner is prohibited from
taking such action without the Approval of a Partner in the other Partner Group
under this Agreement and (ii) such Partner in the other Partner Group fails to
grant such Approval to take such action. No Partner shall have any liability
for failing to grant any Approval permitted to be granted by it under this
Agreement.
5.5.7 Notwithstanding anything to the contrary contained in this
Agreement, no Partner Group or its Affiliates shall receive any reimbursement
from the Partnership or another Partner for any portion of the salaries or
benefits of its Controlling Persons or the rent or utility costs of such
Partner's offices except as Approved by the other Partner Group.
5.6 CONTROL CHANGE. If the Managing General Partner becomes a Terminated
Partner or commits a Removal Default, the Xxxx-Xxxx Limited Partner may appoint
a Co-General Partner, and such Co-General Partner may elect to become the
Managing General Partner and to assume the Managing General Partner's authority
and responsibilities under this Agreement as provided in Section 7.9.5 (subject
to Section 5.9). If the Managing General Partner has committed a Performance
Default with respect to an Investment or a Property, the Xxxx-Xxxx Limited
Partner shall have the rights with respect to such Investment or Property set
forth in Sections 5.10(ii) and 7.9.5 (including the appointment of a Co-General
Partner to take all actions with respect to such Investment or Property on
behalf of the Partnership, with the Managing General Partner having no further
Approval rights with respect to such Investment or Property except those set
forth in Section 5.1.6.1).
5.7 LIMITATION OF LIABILITY. Each Partner's liability shall be limited as
set forth in this Agreement, the Act and other applicable law. Except as
provided in Sections 2.1.2, 2.2.2.1, 3.5.4, 3.11, 4.3.2, 5.5.1, 5.5.3 or 7.6, a
Partner will not be personally liable for any debts or losses of the Partnership
beyond the Partner's interest in the Partnership, other than distributions
received by a Partner as to which, by terms of the Act, such Partner is
obligated to return. No partner, officer, director, shareholder or manager of a
Partner shall be liable for the obligations of such Partner to the Partnership
or the other Partners under any circumstances other than a Major Default that
has actually been committed by such partner, officer, director, shareholder or
manager or as provided in Section 3.11.
5.8 NO PRIORITIES. Except as specifically provided in this Agreement, no
Partner shall have any priority over any other Partner as to the return of his
or its Capital Contributions or as to distributions or allocations of Profits or
Losses or other tax items.
48
5.9 DETERMINATION DATE FOR INDEMNITY PAYMENTS, REMOVAL DEFAULTS,
PERFORMANCE DEFAULTS AND MAJOR DEFAULTS; ARBITRATION.
5.9.1 For purposes of this Agreement, until the "Determination
Date" (defined below) has occurred, (i) no amount shall be due and owing by any
Partner to the Partnership or to another Partner pursuant to Section 3.5.4,
5.5.1 or 5.5.3, 7.6 or 9.2, and (ii) no Major Default, Performance Default or
Removal Default shall be deemed to have occurred and no Partner shall be deemed
to have become a Terminated Partner for purposes of applying Section 7.9 other
than by reason of such Partner becoming a Defaulting Partner under Section
2.2.2, in each case if there is a bona fide dispute as to whether such amount is
due or whether a Partner is a Terminated Partner (other than by reason of such
Partner becoming a Defaulting Partner under Section 2.2.2) or has committed a
Performance Default or Removal Default. Except for the purpose of determining
that a Control Change Notice issued by the Xxxx Xxxx Limited Partner is
effective as provided below in this Section 5.9 upon an alleged Major Default,
Performance Default or Removal Default by the Managing General Partner or
because the Managing General Partner is a Terminated Partner, the "Determination
Date" shall be deemed to have occurred only upon the earlier to occur of the
following: (a) the final determination by a Court described in Section 9.4 that
an amount described in Section 3.5.4, 5.5.1, 5.5.3, 7.6 or 9.2 is due and
payable, or the Major Default, Performance Default or Removal Default in
question has occurred or a Partner has become a Terminated Partner (as the case
may be) and the expiration of the time to file a notice of appeal from such
determination has expired without such notice having been filed; or (b) the
affirmation of a determination described in preceding clause (a) by the entry of
judgment to such effect by the court to which such determination has been
appealed.
5.9.2 Notwithstanding the provisions of this Section 5.9, if the
Xxxx-Xxxx Limited Partner alleges in good faith, by issuing a Control Change
Notice to the Managing General Partner stating that the Managing General Partner
has committed a Major Default Performance Default, or Removal Default or that
the Managing General Partner otherwise is a Terminated Partner, and the Managing
General Partner in good faith gives notice to the Xxxx-Xxxx Limited Partner
within five (5) Business Days after receiving such Control Change Notice that it
disputes whether such Major Default, Performance Default or Removal Default or
any event giving rise to Terminated Partner status has occurred, the Xxxx-Xxxx
Limited Partner may commence an expedited arbitration proceeding held in Los
Angeles, California pursuant to applicable California arbitration rules to
determine whether such Major Default, Performance Default or Removal Default or
other event giving rise to Terminated Partner status has occurred by giving
notice to the Managing General Partner appointing a qualified arbitrator and
stating that the Xxxx-Xxxx Limited Partner is invoking the arbitration
proceedings of this Section 5.9. Within five (5) Business Days after receiving
such notice, the Managing General Partner shall, by notice to the Xxxx-Xxxx
Limited Partner, appoint a second qualified arbitrator. If the Managing General
Partner fails timely to so appoint such second qualified arbitrator, or fails
timely to notify the Xxxx-Xxxx Limited Partner that the Managing General Partner
disputes whether such Major Default, Performance Default, Removal Event or
event giving rise to Terminated Partner status has occurred, the Determination
Date shall be deemed to have occurred solely for the purposes set forth below in
this Section 5.9. If the
49
Managing General Partner timely so appoints such second qualified arbitrator,
the two arbitrators so appointed shall appoint a third qualified arbitrator
within five (5) Business Days after the notice of the appointment of the second
arbitrator is received from the Managing General Partner by the Xxxx-Xxxx
Limited Partner. Within five (5) Business Days after being appointed, the third
arbitrator shall (A) consider the evidence submitted by the Partners and (B)
upon notice to all Partners, determine (solely for purposes of determining
whether such Control Change Notice is valid and effective) whether the Managing
General Partner has committed a Major Default, Performance Default, or Removal
Event or event giving rise to Terminated Partner status. If the third
arbitrator determines that the Managing General Partner has committed a Major
Default, Performance Default, or Removal Event, or that any event giving rise to
Terminated Partner status has occurred, then the Determination Date shall be
deemed to have occurred solely for purposes of determining whether such Control
Change Notice is effective and thereby enabling (i) the Co-General Partner
appointed by the Xxxx-Xxxx Limited Partner pursuant to Section 7.9.5 to become
the Managing General Partner and permanently assume the Managing General
Partner's authority and responsibility under Section 7.9.5 if a Removal Default
or any event giving rise to Terminated Partner status was held to have occurred
in the arbitration, or who may, in the case of a Performance Default that is
held in the arbitration to have occurred with respect to an Investment or
Property, take all actions with respect to such Investment or Property on behalf
of the Partnership, with the Managing General Partner having no further Approval
rights with respect to such Investment or Property except those set forth in
Section 5.1.6.1, or (ii) the Xxxx-Xxxx Limited Partner to have the rights set
forth in Section 5.10(ii). The Determination Date shall not be deemed to have
occurred for any other purpose unless and until otherwise provided in this
Agreement. During the period beginning on the date on which such Control Change
Notice is received by the Managing General Partner and ending with the
determination by the foregoing arbitration that the subject Major Default,
Performance Default, Removal Event, or event giving rise to Terminated Partner
status has not occurred, all actions permitted to be taken under this Agreement
by the Managing General Partner without the consent of the Xxxx-Xxxx Limited
Partner in connection with the operation of the Partnership's business (or, in
the case of a Performance Default, in connection with the Investment or Property
that is the subject of the Performance Default being arbitrated) shall, upon the
election in writing by the Xxxx-Xxxx Limited Partner made by giving notice to
the Highridge Partners (which election may specify which Approval rights it
desires and may be supplemented by notice from the Xxxx-Xxxx Limited Partner to
add or remove Approval rights specified in such notice), require the Approval of
the Xxxx-Xxxx Limited Partner (and the Managing General Partner shall be
absolved of all responsibility and liability to the Partnership and the
Xxxx-Xxxx Partners for failing to undertake all such actions for which the
Xxxx-Xxxx Limited Partner has withheld its Approval during such period). The
costs of the arbitration shall be funded 50% by each Partner Group, and the
Partners shall bear their own attorneys fees, during the arbitration. The
prevailing Partner Group shall be repaid all of such expenses by the
non-prevailing Partner Group within ten (10) days after receiving notice of the
third arbitrator's decision. A "qualified arbitrator" means any Person who has
had over fifteen (15) years of experience in drafting, negotiating and/or
interpreting partnership and/or operating agreements involving the ownership and
operation of commercial real estate.
50
5.10 DEADLOCK/PARTNER SALE RIGHTS. Either Highridge GP or the Xxxx-Xxxx
Limited Partner (provided such Partner has not become a Terminated Partner or
committed a Performance Default or Removal Event) may at any time give notice to
the other (a "Deadlock Notice") if such Partner asserts that there is an
irreconcilable difference of opinion among the Partner Groups (a "Deadlock") as
to the course of action to be taken with respect to any Major Decision on which
they both have Approval rights. The Deadlock Notice shall describe the Deadlock
and the resolution proposed by the Partner issuing the Deadlock Notice. If a
Deadlock Notice is properly issued, the Partners shall meet in good faith during
the 30-day period after the Deadlock Notice has been received. If the Major
Decision that is the subject of the Deadlock is not resolved within such 30-day
period, then:
(i) In the case of any Deadlock that occurs prior to the First
Offer Date (defined in Section 5.11), there shall be no mechanism to
resolve the Deadlock and arbitration or litigation shall not be used to
resolve any such Deadlock except as provided in Section 5.10 (iii), this
clause (i), in clauses (ii) and (iii) of this Section 5.10, or in Section
5.4 in the case of tax returns. In the case of a Deadlock occurring on or
after the First Offer Date, the provisions of this clause (i), Sections
5.10(ii) and (iii), 5.4 (tax returns) and 5.11 (the first-offer procedure)
shall apply. In the case of a Deadlock that occurs at any time regarding
(A) whether a Funding Notice is permitted or required to be issued under
Section 2.1(b), or (B) what actions should be taken with respect to the
sale or other disposition of assets that is being made in connection with
the liquidation of the Partnership where both the Highridge GP and the
Xxxx-Xxxx Limited Partner have Approval rights with respect thereto, the
dispute may be resolved through an expedited arbitration conducted in
accordance with a procedure that is analogous to that contained in Section
5.9.2 (with conforming changes being made to the terminology contained
therein and with either Highridge GP or the Xxxx-Xxxx Limited Partner being
able to invoke such arbitration proceeding by notice to the other).
(ii) SPECIAL RULES FOR PERFORMANCE DEFAULTS. From and after
the date on which a Performance Default with respect to an Investment or
Project has been held to have occurred under Section 5.9.2 for purposes of
issuing a Control Change Notice under Section 7.9.5, the Xxxx-Xxxx Limited
Partner may propose to the Highridge GP that any action be taken (or not be
taken) at any time by the Partnership or an Investment Entity with respect
to such Investment or Project. If Highridge GP does not agree with such
proposal, such Deadlock shall be resolved in the manner directed and
Approved by the Xxxx-Xxxx Limited Partner (and Highridge GP shall cause the
Partnership and such Investment Entity promptly to take, or refrain from
taking, as appropriate, such action in the manner so directed and Approved
by the Xxxx-Xxxx Limited Partner). In the case of a Performance Default,
the Xxxx-Xxxx Limited Partner shall also have the rights set forth in
Section 7.9.5 with respect to appointing a Co-General Partner.
(iii) GROSS ASSET VALUE DEADLOCKS. In the case of a Major
Decision described in Section 5.1.5.7 or 8.3.8, concerning the Gross Asset
Value of any property, the dispute concerning such Major Decision shall be
resolved in the following manner (subject to the special rules contained in
Section 8.3.8). Unless and
51
until such Gross Asset Value has been Approved by the Partners or
determined as provided in this paragraph (iii), the transaction giving rise
to the determination of Gross Asset Value shall not be consummated by any
Partner. Either Highridge GP or the Xxxx-Xxxx Limited Partner (the
"Invoking Partner") may give notice to the other of them (the "Other
Partner") stating that such Partner is invoking the following procedure,
setting forth its proposed Gross Asset Value for such property (the "GAV
Notice"), and appointing a "qualified appraiser" (defined below). Within
five (5) Business Days after receiving a GAV Notice, the Other Partner
shall, by notice to the Invoking Partner, appoint a second qualified
appraiser. If the Other Partner fails timely to so appoint such second
qualified appraiser, the Gross Asset Value shall be deemed to be that set
forth in the GAV Notice. If the Other Partner timely so appoints such
second qualified appraiser, the two appraisers so appointed shall appoint a
third qualified appraiser within five (5) Business Days after the notice of
the appointment of the second appraiser is received by the Invoking
Partner. Within five (5) Business Days after being appointed, the third
appraiser shall (A) consider the evidence submitted by the such Partners
and (B) upon notice to both of such Partners, determine such Gross Asset
Value. The cost of the appraisal shall be funded by the Partnership, and
the Partner Groups shall bear their own attorneys fees, during the
appraisal. A "qualified appraiser" means any M.A.I. appraiser who has had
over fifteen (15) years of experience in valuing commercial real estate in
Los Angeles, California.
(iv) PARTNER SALE RIGHTS. The Xxxx-Xxxx Limited Partner
shall have the right to cause the Partnership to cause the sale or other
disposition of any Property at any time if (a) a Co-General Partner has
assumed the Managing General Partner's authority and responsibility, or the
Xxxx-Xxxx Limited Partner or a Co-General Partner has assumed control of
such Property, under Section 5.10(ii) or Section 7.9.5, (b) the Managing
General Partner becomes a Terminated Partner, (c) [INTENTIONALLY OMITTED]
or (d) the Xxxx-Xxxx Limited Partner reasonably determines prior to
completion of such Property that development of such Property should be
abandoned (an "Abandonment Decision"). The right to cause a sale or other
disposition of a Property pursuant to the foregoing clauses (a) through (c)
shall be hereinafter referred to as the "Xxxx-Xxxx Sale Right." If the
Xxxx-Xxxx Limited Partner becomes a Terminated Partner, the Managing
General Partner shall have the right to cause the Partnership to sell such
Property (or any or all Properties if the Xxxx-Xxxx Limited Partner has
become a Terminated Partner) at any time (the "Managing General Partner
Sale Right"). If the Co-General Partner makes an Abandonment Decision
pursuant to this Section 5.10(iv), the Partners' obligations to fund the
completion of such Property shall cease for any future development and the
Partners shall separately fund and bear, without reimbursement from the
Partnership, any Investment Partnership or any Partner or its Affiliates,
any abandonment costs (including any amounts that are due and payable by a
Partner or any Affiliate of a Partner under any Managing General Partner
Guaranty to the extent indemnification is available with respect thereto
under Section 5.5) in the ratio of 80% by the Xxxx-Xxxx Partners and 20% by
the Highridge Partners.
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Any Property to be sold in accordance with clause (d) of this Section
5.10(iv) or upon a liquidation in accordance with Article 8 that does not
occur as the result of the exercise of the Xxxx-Xxxx Sale Right or the
Managing General Partner Sale Right shall be sold in a manner reasonably
Approved by the Partners or, if necessary, as determined pursuant to the
procedure described in Section 5.10(i)(B). If the Xxxx-Xxxx Limited
Partner has the Xxxx-Xxxx Sale Right with respect to any Property, upon
notice to the Managing General Partner, the Xxxx-Xxxx Limited Partner shall
have the right to cause the Partnership to sell or otherwise dispose of
such Property as it shall Approve, including the right to cause the
Partnership to sell or contribute such Property to a REIT (whether or not
Controlled by Xxxx-Xxxx Realty or its Affiliates). Notwithstanding
anything to the contrary contained in this Agreement, if any Property has
achieved 95% Stabilization, the Co-General Partner shall have the right to
cause the Partnership to sell or contribute such Property to a REIT that is
Controlled by Xxxx-Xxxx Realty or its Affiliates. Any sale or contribution
of a Property by the Partnership or an Investment Entity (regardless of
whether made pursuant to the Xxxx-Xxxx Sale Right under this Section
5.10(iv), pursuant to Section 5.11 or any other provision of this
Agreement) to an Affiliate of any Xxxx-Xxxx Partner or to a REIT that is
Controlled by Xxxx-Xxxx-Realty or its Affiliate shall be made at fair
market value as determined through the "FMV Appraisal Procedure" set forth
herein, provided however, that if the Xxxx-Xxxx Limited Partner elects to
contribute a Property to a REIT instead of effecting a sale of the
Property, the Highridge Partners shall have the option to receive cash for
their indirect interests in such Property (equal to the amount they would
have received if the Property were sold for cash) instead of REIT stock or
partnership interests.
If Highridge GP does not Approve the value proposed by the Xxxx-Xxxx
Limited Partner, the "FMV Appraisal Procedure" which shall be invoked by
the Xxxx-Xxxx Limited Partner as a condition precedent to a transfer of a
Property to a REIT Controlled by the Xxxx-Xxxx Limited Partner or its
Affiliates is as follows. The Xxxx-Xxxx Limited Partner shall give notice
to the Managing General Partner stating that the Xxxx-Xxxx Limited Partner
is invoking the FMV Appraisal Procedure, setting forth its proposed fair
market value for the Property (the "FMV Notice"), and appointing a
"qualified appraiser" (defined below). Within five (5) Business Days after
receiving an FMV Notice, the Managing General Partner shall, by notice to
the Co-General Partner, appoint a second qualified appraiser. If the
Managing General Partner fails timely to so appoint such second qualified
appraiser, the fair market value shall be deemed to be that set forth in
the FMV Notice. If the Managing General Partner timely so appoints such
second qualified appraiser, the two appraisers so appointed shall appoint a
third qualified appraiser within ten (10) Business Days after the notice of
the appointment of the second appraiser is received from Highridge GP by
the Managing General Partner. Within five (5) Business Days after being
appointed, the appraisers shall (A) consider the evidence submitted by such
Partners and (B) upon notice to both of such Partners, determine such fair
market value. The fair market value shall be the amount determined by the
three appraisers, or if there is a dispute among the three appraisers as to
value, the value established by the third appraiser shall be the fair
market value (but the fair market value shall not exceed the highest, or be
less than the lowest, value
53
established by the other two appraisers). The cost of the appraisal shall
be funded by the Partnership, and the Partners shall bear their own
attorneys fees, during the appraisal. A "qualified appraiser" means any
M.A.I. appraiser who has had over fifteen (15) years of experience in
valuing commercial real estate in Los Angeles, California.
5.11 PROPERTY DEADLOCK. Notwithstanding the provisions of Sections 5.9
and 5.10, if (A) either Partner Group desires to sell or otherwise dispose of
any Property at any time after the expiration of thirty-six (36) months after
the completion of such Property if 95% Stabilization (as defined in Exhibit H)
has not occurred by such date and such Partner Group does not then have the
right to dispose of such Property pursuant to the Managing General Partner Sale
Right or the Xxxx-Xxxx Sale Right (as appropriate) under Section 5.10(iv), (B)
on or after the date on which 95% Stabilization of a Property has occurred,
either Partner Group desires to sell or otherwise dispose of such Property and
such Partner Group does not then have the right to dispose of such Property
pursuant to the Xxxx-Xxxx Sale Right or the Managing General Partner Sale Right
(as appropriate) under Section 5.10(iv), or (C) there is a dispute as to whether
any Major Decision (other than those described in the last sentence of Section
5.10(i)) should be Approved (or reasonably Approved) by the Partners with
respect to such Property (the events referred to in the preceding clauses (A),
(B) and (C) of this Section 5.11 are individually referred to as a "Property
Deadlock"), the resolution of such Property Deadlock shall only be made pursuant
to this Section 5.11.
(a) If a Property Deadlock occurs, either of the Highridge
Partners or the Xxxx-Xxxx Partners (the "Proponent Group") (provided no Partner
in such Partner Group shall be a Terminated Partner, shall have committed a
Performance Default with respect to such Property, or shall have committed a
Removal Default, and, PROVIDED, FURTHER, that no prior election to sell or
otherwise dispose of such Property shall have been made and be pending under
Section 5.10(iv) or otherwise shall have been Approved by the Partners and be
pending), may give the other Partner Group (the "Respondent Group") notice (the
"First Offer Notice") setting forth a gross value for such Property (the
"Proponent Group First Offer Price").
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Within ten (10) Business Days after receiving the First Offer Notice, the
Respondent Group may give notice to the Proponent Group (the "Appraisal Notice")
electing to establish the gross value of the Property by appraisal (in lieu of
using the Proponent Group First Offer Price). In order for the Appraisal
Notice to be effective, the Appraisal Notice must both (1) appoint the first of
the three qualified appraisers who will establish the gross value of the
Property (including any reserves of the Partnership and any Investment Entity
allocable to such Property) by appraisal (the "Appraised First Offer Price"),
and (2) elect one of the following procedures:
(i) BUY-OUt. If elected by the Respondent Group, the Respondent
Group irrevocably elects to purchase the Proponent Group's interest in the
Property for the amount the Proponent Group would receive if the Property
were sold for the Appraised First Offer Price and the net proceeds thereof
(after repayment of Partnership or Investment Entity debt allocable to such
Property and after deducting reasonable reserves for contingencies for such
Property) were paid and/or distributed by the Partnership to the Partners
pursuant to Sections 4.1 and 4.2 ("Proponent Group Interest Purchase
Price"); or
(ii) NON-BINDING APPRAISAL. If elected by the Respondent Group, the
Proponent Group shall have the option, exercisable by notice to the
Respondent Group given within thirty (30) days (or 60 days if the Proponent
Group is the Highridge Group and an All-Cash Election has been made under
Section 5.11(b)) after receiving the Appraised First Offer Price, to
purchase the interest of the Respondent Group in such Property for the
amount the Respondent Group would receive if the Property were sold for the
Appraised First Offer Price and the net proceeds thereof (after repayment
of Partnership or Investment Entity debt allocable to such Property and
after deducting reasonable reserves for contingencies for such Property)
were paid and/or distributed by the Partnership (the "Respondent Group
Interest Purchase Price"). If within the foregoing 30 or 60-day period (as
applicable), the Proponent Group does not elect to purchase the Respondent
Group's interest in such Property pursuant to the foregoing, then, the
Respondent Group shall have the option to elect by notice to Proponent
Group, given within the thirty (30) day period (or 60-day period if the
Respondent Group is the Highridge Partners and an All-Cash Election has
been made by the Xxxx-Xxxx Partners as provided in Section 5.11(b)) after
the expiration of such 30-day period (or 60-day period, as applicable), to
purchase the Proponent Group's interest in such Property for the Proponent
Group Interest Purchase Price. If within the foregoing thirty 30 or 60-day
period (as applicable), the Respondent Group does not elect to purchase the
Proponent Group's interest in such Property pursuant to the foregoing, then
the Proponent Group shall have the right to unilaterally cause the sale of
the Property (without the Approval of any other Partner being required) for
a price not less favorable to the Partnership than the Appraised First
Offer Price. The Proponent Group shall have one hundred twenty (120) days
to close such sale (which period shall be extended to one hundred eighty
(180) days if a binding, non-contingent, sale contract has been executed
prior to expiration of such 120 day period).
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If an Appraisal Notice is timely given by the Respondent Group within ten
(10) Business Days after receiving a First Offer Notice, the Proponent Group
shall, within five (5) Business Days after receiving such Appraisal Notice,
appoint a second appraiser to establish the Appraised First Offer Price as set
forth above. If the Proponent Group does not timely appoint the second
appraiser, the value established by the first appraiser shall control. Within
five (5) Business Days after the first appraiser receives notice of the identity
of the second appraiser, the first and second appraisers shall appoint a third
appraiser. Within ten (10) business days after the third appraiser is
appointed, the appraisers shall issue to the Proponent Group and the Respondent
Group their determination of the Appraised First Offer Price. In the case of a
dispute among the three appraisers as to value, the value established by the
third appraiser shall be the Appraised First Offer Price for the purpose of this
Section 5.11 (but the Appraised First Offer Price shall not exceed the highest,
or be less than the lowest, value established by the other two appraisers). The
cost of the appraisal shall be borne 50% by the Proponent Group and 50% by the
Respondent Group.
If an Appraisal Notice is not timely given by the Respondent Group within
the ten (10) Business Day period prescribed above, then the Respondent Group
shall have thirty (30) days (or sixty (60) days if the Highridge Partners are
the Respondent Group and an All-Cash Election has been made by the Proponent
Group) after receiving the First Offer Notice to elect, by giving notice to the
Proponent Group, to purchase the Proponent Group's interest in the Property for
the amount the Proponent Group would receive if the Property were sold for the
Proponent Group's First Offer Price and the net proceeds (after repayment of
Partnership and Investment Entity debt allocable to the Property and after
deducting reasonable reserves for contingencies for such Property) were
distributed and/or paid by the Partnership pursuant to Sections 4.1 and 4.2
("Non-Appraisal Interest Purchase Price") to the Partners and, except as
provided in Section 5.11(c) below, the Respondent Group shall have sixty (60)
days thereafter to close on the purchase of the Proponent Group's interest in
the Property. If the Respondent Group fails to elect to purchase the interest
of the Proponent Group within the 30- or 60-day period (as applicable) after
receiving the First Offer Notice as specified above, the Proponent Group may
unilaterally cause the sale of the Property for a price not less favorable to
the Partnership than the Proponent Group's First Offer Price. In such event,
the Proponent Group shall have one hundred twenty (120) days after the
expiration of the specified 30- to 60-day period (as applicable) to close such
sale of the Property (which period shall be extended to one hundred eighty (180)
days if a binding, non-contingent, sale contract has been executed prior to the
expiration of the foregoing 120-day period).
(b) The Respondent Group or Proponent Group that elects to
purchase the other Partner Group's interest in a Property following invocation
of the first-offer procedure of this Section 5.11 shall have sixty (60) days
after the election to close the purchase of such interest in such Property,
PROVIDED, HOWEVER, that if: (x) the Xxxx-Xxxx Partners are the Proponent Group
and state in the First Offer Notice, or (y) the Xxxx-Xxxx Partners are the
Respondent Group and state in the Appraisal Notice, that they elect not to
permit deferred payment terms for the Highridge Partners as purchaser (an
"All-Cash Election"), then the Highridge Partners shall have sixty (60) days
(instead of 30 days) after the purchase price is established for the Xxxx-Xxxx
Partners' interest in such Property to elect to purchase and ninety (90) days
thereafter to close such purchase. If the Highridge Partners are
56
the purchaser of the Xxxx-Xxxx Partners' interest in a Property and the
Xxxx-Xxxx Partners did not make an All-Cash Election, the terms of the purchase
shall be as follows: 25% of the interest purchase price shall be paid in cash as
the down payment at the closing, and the balance of the purchase price shall be
payable one year after closing. If the Xxxx-Xxxx Partners are the purchaser of
the Highridge Partners' interest in a Property, or if the Xxxx-Xxxx Partners
made an All-Cash Election, the entire purchase price for such interest shall be
paid at closing. At closing, (i) the Partnership shall distribute the Property
to the purchasing Partner Group, (ii) the selling Partner Group shall be deemed
to have received a distribution of the Proponent Group Interest Purchase Price
or the Respondent Group Interest Purchase Price (as applicable, depending on
whether the selling Partner Group is the Proponent Group or the Respondent
Group) under this Agreement, and (iii) the purchasing Partner Group shall be
deemed to have received a distribution of the Proponent Group First Offer Price
or the Appraised First Offer Price (as applicable), less allocable the debt, and
less the purchase price payable to the selling Partner Group. The purchasing
Partner Group shall be obligated to pay any release price to the Partnership's
or Investment Entity's lenders as necessary to permit the purchasing Partner
Group to own the Property if the debt encumbering the Property is not assumable
by the purchasing Partner Group, PROVIDED, HOWEVER, that if (A) the Highridge
Partners purchase the Xxxx-Xxxx Partners' interests in a Property, and (B) the
Xxxx-Xxxx Partners did not make an All-Cash Election, the Xxxx-Xxxx Partners
shall lend or arrange to have lent (subject in each case to any obligation not
to breach loan covenants on their debt and that of their Affiliates) to the
Highridge Partners 75% of such release price for a one-year period on a
non-recourse basis (subject to standard recourse carve-outs for environmental
liability and wrongful acts) at a rate equal to the greater of 100 basis points
over the Prime Rate or 300 basis points over LIBOR. If the purchasing Partner
Group wrongfully fails to close timely the purchase of the selling Partner
Group's interest in the Property, the selling Partner Group shall have as its
exclusive remedies for such failure the right to assume complete control over
the disposition of that Property (without the Approval of any other Partner
being required) and the right to purchase the breaching Partner Group's interest
in that Property (and receive a distribution of that Property in respect
thereof) for 80% of the amount that the breaching Partner Group would have
received if the Property were sold for the Proponent Group First Offer Price or
Appraised First Offer Price (as applicable), and the damage provisions of
Section 9.2 shall not apply to such breach.
The Proponent Group Interest Purchase Price, the Respondent Group
Interest Purchase Price and the Non-Appraisal Interest Purchase Price shall be
readjusted to account for the release of any reserves for contingencies
previously reducing such amounts when such amounts become available for
distribution to the Partners.
(c) Notwithstanding anything in this Agreement to the contrary, by
notice to Highridge GP given by the Xxxx-Xxxx Limited Partner at any time at
least five (5) Business Days before a payment of purchase price to the Highridge
Partners is required under this Section 5.11, the Xxxx-Xxxx Limited Partner may
elect to satisfy all or any portion of its obligation to pay the purchase price
payable to the Highridge Partners under this Section 5.11 by the delivery of
shares of common stock in Xxxx-Xxxx Realty that may be sold immediately on a
national securities exchange without further registration or restriction and
that constitute marginable securities (such shares to be valued at the average
closing price per share on a
57
national securities exchange for the ten trading days preceding the date that is
five (5) Business Days prior to the date on which the payment in shares is being
made); PROVIDED, HOWEVER, that the Highridge Partners shall have the option,
exercisable by Highridge GP giving notice to the Xxxx-Xxxx Limited Partner prior
to the time such Xxxx-Xxxx Realty shares are issued to the Highridge Partners,
to contribute all of their interests in the Partnership to Xxxx-Xxxx Realty,
L.P. and to receive operating partnership units in Xxxx-Xxxx Realty, L.P. in
lieu of receiving such shares in Xxxx-Xxxx Realty (such operating partnership
units to be subject to the one-year holding period before conversion or
redemption that is customarily applicable to such units that are issued to
Persons contributing property in exchange therefor).
ARTICLE 6
BOOKS, RECORDS AND BANK ACCOUNTS
6.1 BOOKS AND RECORDS. At Partnership expense, the Managing General
Partner shall cause to be kept (at the office of the Partnership referred to in
Section 1.3.2) accurate, just and true books of account, in which shall be
entered fully and accurately each and every transaction of the Partnership. The
books and records of the Partnership shall separately identify, and account for,
the Partnership's investment in, and the Profits, Losses, Gain or Loss or
Disposition and distributions attributable to, each of the Investments,
Properties and each Investment Entity. The books shall be kept in accordance
with the Partnership's method of reporting for federal income tax purposes
(which shall be the accrual method of accounting). Tax accounting elections,
including methods of depreciation and deduction or capitalization of interest,
taxes and insurance premiums during a construction period, if any, shall be made
as the Xxxx-Xxxx Limited Partner shall reasonably Approve. The Partnership's
financial statements shall be prepared in accordance with generally accepted
accounting principles, consistently applied.
6.2 BANK ACCOUNTS. The funds of the Partnership shall be deposited in the
name of the Partnership, in such bank account or accounts as the Partners shall
reasonably Approve and reasonably direct from time to time. Such funds shall be
invested by the Managing General Partner, or by the Xxxx-Xxxx Limited Partner at
its election made by giving notice to the Managing General Partner, in such high
quality, short term instruments as shall be reasonably Approved by the Partners
(which may or may not bear interest as the Partners shall reasonably Approve).
Each of the Managing General Partner and any Co-General Partner, unless it has
become a Terminated Partner or has committed a Removal Default, shall be
individual signatories on all Partnership accounts, with the signature of any
such Partner or its designee being sufficient to effect withdrawals.
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ARTICLE 7
TRANSFERS OF PARTNERSHIP INTERESTS
7.1 RESTRICTIONS ON TRANSFER. (a) Except as hereinafter provided, no
Partner shall be permitted to Transfer all or any part of its interest in the
Partnership or permit any Transfer of ownership interests in such Partner or, in
the case of the Highridge Partners, in the partners, members or shareholders of
such Partners (or in Persons owning, directly or indirectly through tiered
entities, an interest in such Partners). Any attempted or actual Transfer shall
be null and void AB INITIO and of no force and effect. Notwithstanding any
other provision of this Agreement, no interest in the Partnership or ownership
interest in any Partner may be pledged or hypothecated other than to its
Affiliates without the Approval of the Partners.
(b) Notwithstanding the foregoing, a Partner may Transfer all or part
of its interest in the Partnership, or allow the Transfer of ownership interests
in such Partner or in direct or indirect the partners, members or shareholders
thereof, as follows:
7.1.1 To the Partnership or another Partner or a partner, member,
shareholder or Affiliate of a Partner;
7.1.2 If the proposed transferor is a natural Person, by
succession or testamentary disposition upon his death;
7.1.3 If the proposed transferor is a natural Person, to a trust
for the benefit of any Family Member with respect to the proposed transferor,
but only if the proposed transferor retains Control of the interest so
transferred;
7.1.4 Any other Transfer which is Approved by the Partners
(excluding any Partner that is a Terminated Partner or who has committed a
Removal Default); and
7.1.5 Ownership interests in a Highridge Partner (or in the direct
or indirect partners, members or shareholders of the Highridge Partners) may be
Transferred (but not pledged or hypothecated to Persons other than Affiliates of
the Highridge Partners) without restriction if, at all times after such Transfer
of interests: (a) Xxxx X. Xxxx, Xxxxxx X. Xxxxxxxxx, Xxxxxx X. Xxxxxxxxx and/or
their Family Members continue to own (directly or indirectly through tiered
Entities) over 50% of the interests in capital and profits of each Highridge
Partner, and (b) Xxxx X. Xxxx, Xxxxxx X. Xxxxxxxxx and/or Xxxxxx X. Xxxxxxxxx
continue to have voting control (whether directly or through tiered Entities) of
each Highridge Partner with respect to Major Decisions;
7.1.6 The interests in the Partnership of the Xxxx-Xxxx Partners,
and ownership interests in the Xxxx-Xxxx Partners, may be Transferred without
restriction to a REIT (or other Entity) Controlled by the Xxxx-Xxxx Partners or
their Affiliates or successors;
59
The following shall be conditions to any Transfer of any interest in the
Partnership pursuant to this Article 7: (i) the transferee shall assume in
writing each of the obligations of the transferor to the Partnership; (ii) such
transferee shall agree in writing to be bound by each of the terms and
conditions of this Agreement; (iii) the transferee shall deliver to the
Partnership instruments of assumption and security reasonably Approved by the
Partners other than the Partner Group making the Transfer, for the payment and
performance of all obligations of or attendant to the interest so transferred
and assumed; and (iv) the requirements of Sections 7.4 and 7.5 shall be
satisfied.
7.2 NO TAG-ALONG RIGHTS. There shall be no right of any Partner or its
Affiliates to participate in any Transfer permitted by another Partner under
this Agreement.
7.3 BANKRUPTCY OR DISSOLUTION OF PARTNERS. The Bankruptcy or dissolution
(without reconstitution within sixty (60) days thereafter) of any General
Partner (whether or not the Managing General Partner) shall dissolve (and
require the liquidation of) the Partnership, except as otherwise provided in
Section 8.4. The Bankruptcy or dissolution of a Limited Partner shall not
dissolve the Partnership. Upon the occurrence of a Bankruptcy or the
dissolution (without reconstitution within sixty (60) days thereafter) of any
Partner, such Partner shall become a Terminated Partner under Section 7.9, and
the trustee in Bankruptcy, receiver or other legal representative of the
Bankrupt Partner or other legal representatives of the dissolved Partner, shall
have all the rights of an assignee of the Partner, including the same right
(subject to the same limitations) as the Bankrupt or dissolved Partner would
have had under the provisions of Section 7.1 to assign its interest in the
Partnership, subject to the substitution rules of Section 7.4 and the provisions
of Section 7.9.
7.4 SUBSTITUTION OF PARTNER. Subject to the restrictions and Approval
rights of the Partners as set forth in Section 7.1 and the provisions of Section
7.5, the assignee of any Transfer by a Partner (a "Partner Assignee") shall
become a substitute Partner only if (i) the assignor Partner so provides in an
instrument of assignment, (ii) the Partner Assignee agrees in writing to be
bound by the provisions of this Agreement and of the Articles and any amendments
hereto and thereto and executes and delivers a copy of this Agreement
(appropriately modified to take account of the Transfer), and (iii) each Partner
Approves such substitution, which Approval may be given or withheld in its
reasonable discretion. If the foregoing conditions (and the other provisions of
this Article 7) are satisfied, the Partner Assignee shall become a substitute
Partner upon payment to the Partnership of all costs and expenses of reviewing
the instrument of assignment, if appropriate, and, if required by law, an
amendment to the Certificate to reflect such substitution. In such event, if
and as required by law, the Managing General Partner shall prepare or cause to
be prepared an amendment to the Certificate to be signed by the Managing General
Partner and, to the extent required, by the Partner Assignee. The Managing
General Partner shall attend to the due execution and filing of an amendment to
the Certificate, if such amendment is required. Unless admitted to the
Partnership as a Partner as provided in this Agreement, no Person shall be
considered a Partner, and the Partnership, each Partner and any other Persons
having business with the Partnership need deal only with the Partners so
admitted and shall not be required to deal with any other Person by reason of an
assignment or pledge by a Partner (or realization of a pledge) or by reason of
the death of a Partner (the Partners hereby confirming that no pledge or
60
hypothecation of interests in the Partnership or interests in the Partners shall
be permitted to Persons who are not Affiliates of a Partner without the Approval
of the Partners). In the absence of the substitution of a Partner for a
deceased Partner as provided in Section 7.1(a) or this Section 7.4, any payment
to the executors, administrators or personal representatives of such deceased
Partner shall acquit the Partnership of all liability with respect to such
payment to any other Persons who may be interested in such payment by reason of
the death of such Partner. A Partner Assignee of an interest in the Partnership
who is not admitted as a substitute Partner as provided in this Section 7.4
shall be entitled to receive the economic benefits of the interest purported to
be Transferred, but shall not be considered a Partner for any purposes and shall
have no Approval rights under this Agreement and none of the rights of a Partner
under this Agreement or under the Act.
7.5 ADDITIONAL TRANSFER RESTRICTIONS.
7.5.1 Notwithstanding any provision of this Agreement to the
contrary, and subject to the limitations in Sections 7.1 through 7.4, a
Partner's ability to Transfer all or any portion of its Partnership interest, or
ownership interests in such Partner, or, in the case of any Highridge Partner,
to permit the Transfer of direct or indirect (through one or more
intermediaries) ownership interests in such Partner relating specifically or
generally to such Partner's interest in the Partnership, shall be subject to the
following additional restrictions:
7.5.1.1 No Transfer of all or any portion of such interest
shall be effective unless (i) such Transfer complies with the Transfer
restrictions in all agreements to which the Partnership, any Investment Entity
or such Partner is a party, and (ii) such interest is registered under the
Securities Act and any applicable state securities laws, or an exemption from
registration is available, and, for any direct Transfer of an interest in the
Partnership, the Partnership shall have received an opinion of counsel,
reasonably Approved by the Partners other than the Partner making the Transfer,
to such effect (unless the requirement that the Partnership receive such legal
opinion is waived by the Approval of the Partners other than the Partner making
the Transfer);
7.5.1.2 No Partner shall be permitted to Transfer any
portion of its Partnership interest or take any other action which would cause
the Partnership to be (i) treated as a "publicly traded partnership" within the
meaning of Code Section 7704 or (ii) classified as a corporation (or as an
association taxable as a corporation) within the meaning of Code Section
7701(a);
7.5.1.3 No Partner shall be permitted to Transfer all or
any portion of its Partnership interest or to take any other action (including,
in the case of any Partner which is a corporation, limited liability company or
partnership or a partner, member or shareholder of a partnership or limited
liability company which is a Partner, a Transfer of any interest in such
partnership, limited liability or corporation or in the partners, members or
shareholders thereof) which would result in a termination of the Partnership as
a partnership within the meaning of Code Section 708(b)(1)(B) (a "Tax
Termination") unless such Partner indemnifies the other Partners against any
adverse tax consequences suffered by the Partnership as a result thereof;
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7.5.1.4 Unless arrangements concerning withholding are
reasonably Approved by the Partners other than the Partner making the Transfer
(if such withholding is required of the Partnership), no Partner shall be
permitted to Transfer all or any portion of its interest in the Partnership to
any Person, unless such Person is a United States Person as defined in Code
Section 7701(a)(30) and is not subject to withholding of any federal tax; and
7.5.1.5 No Partner shall be permitted to Transfer all or
any portion of its Partnership interest if such Transfer will (i) cause the
assets of the Partnership or any Investment Entity to be deemed to be "plan
assets" under ERISA or its accompanying regulations or the Code or (ii) result
in any "prohibited transaction" under ERISA or its accompanying regulations
affecting the Partnership or any Investment Entity.
7.5.2 Any purported transfer or any other action taken in
violation of this Section 7.5 shall be void AB INITIO.
7.6 TRANSFER INDEMNIFICATION AND CONTRIBUTION PROVISIONS.
Each Partner shall indemnify, defend and hold the Partnership and each
other Partner, and the shareholders, partners, employees, agents, members and
Affiliates thereof, harmless from any Liabilities in any way arising from the
failure of a Transfer of any interest in the Partnership (including any Transfer
of an interest in any partners, members or shareholders of the indemnifying
Partner, or in the direct or indirect partners, members or shareholders therein,
and regardless of whether occurring before or after the date of this Agreement)
to comply with all applicable federal and state securities laws, including all
registration or qualification requirements and anti-fraud requirements, or
arising from the impact of such Transfer upon compliance of the Partnership and
its Partners with those securities laws in connection with any previous Transfer
of an interest in the Partnership. Should the preceding indemnity be
unenforceable to any extent, then, to such extent the Partner otherwise required
to so indemnify the Partnership and the other Partners shall be obligated to
contribute to any loss, liability, cost or expense resulting from the actions,
omissions or events set forth in the above indemnification to the extent of its
responsibility therefor, as determined by the trier of fact.
7.7 BASIS FOR RESTRICTIONS AND REMEDIES. The Partners acknowledge that
the relationship of each Partner to the other Partners is a personal
relationship and that the restrictions on the power of each Partner to withdraw
or Transfer its interest in the Partnership or permit the Transfer of ownership
interests in such Partner (and in indirect and direct owners of the Highridge
Partners), and the remedies of this Agreement, including Section 7.9 (and the
purchase and redemption rights contained therein), (i) are necessary to preserve
such personal relationship and safeguard the investment of the other Partners in
the Partnership, (ii) were a material inducement to the other Partners entering
into this Agreement, and (iii) shall be enforceable notwithstanding the
Bankruptcy of any Partner or its Affiliates, or any applicable prohibition
against restraints on alienation.
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7.8 REPRESENTATIONS, WARRANTIES AND COVENANTS.
Each Partner hereby represents and warrants to each of the other
Partners as follows:
7.8.1 Such Partner, if not a natural Person, is duly formed and
validly existing under the laws of the jurisdiction of its organization with
full power and authority to enter into this Agreement and to conduct its
business to the extent contemplated in this Agreement;
7.8.2 This Agreement has been duly authorized, executed and
delivered by such Partner and constitutes the valid and legally binding
agreement of such Partner, enforceable in accordance with its terms against such
Partner, except as such enforceability may be limited by bankruptcy, insolvency,
moratorium and other similar laws relating to creditors' rights generally, by
general equitable principles and by any implied covenant of good faith and fair
dealing;
7.8.3 The execution and delivery of this Agreement by such Partner
and the performance of its duties and obligations hereunder do not result in a
breach of any of the terms, conditions or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, credit agreement, note or other
evidence of indebtedness, or any lease or other agreement, or any license,
permit, franchise or certificate to which such Partner or any of its Affiliates
is a party or by which any of them are bound or to which any of their properties
are subject, or require any authorization or approval under or pursuant to any
of the foregoing, or violate any statute, regulation, law, order, writ,
injunction, judgment or decree to which such Partner is subject;
7.8.4 Neither such Partner nor any of its Affiliates is in default
(nor has any event occurred which with notice, lapse of time, or both, would
constitute a default) in the performance of any obligation, agreement or
condition contained in any indenture, mortgage, deed of trust, credit agreement,
note or other evidence of indebtedness or any lease or other agreement, or any
license, permit, franchise or certificate, to which it is a party or by which it
is bound or to which any of its properties are subject, nor is it in violation
of any statute, regulation, law, order, writ, injunction, judgment or decree to
which it is subject; but only, in each case, if such default or violation would
materially and adversely affect such Partner's ability to carry out its
obligations under this Agreement;
7.8.5 There is no litigation, investigation or other proceeding
pending or, to the knowledge of such Partner, threatened against such Partner or
any of its Affiliates which, if adversely determined, would materially and
adversely affect such Partner's ability to carry out its obligations under this
Agreement, and, to the knowledge of such Partner and its Affiliates, (i) there
is no lawsuit pending against such Partner or its Affiliates alleging fraud
against them and (ii) there is no criminal investigation or indictment pending
against such Partner or its Affiliates;
7.8.6 To the knowledge of such Partner and such Partner's
Affiliates, no consent, approval or authorization of, or filing, registration or
qualification with, any court or
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governmental authority on the part of such Partner is required for the execution
and delivery of this Agreement by such Partner and the performance of its
obligations and duties hereunder;
7.8.7 Such Partner is acquiring its interest in the Partnership
for investment purposes and without a view toward its resale or distribution;
7.8.8 Such Partner is sophisticated in real estate transactions,
has been granted access to such financial and other material information
concerning the Partnership, its purchase of the initial Investments and
Properties, the Initial Development Plan and all Due Diligence Materials with
respect to the foregoing as it has requested or may require in connection with
its investment in the Partnership, is able, either directly or through its
agents and representatives, to evaluate such information and any Due Diligence
Materials provided or made available to it from time to time hereunder, and is
able to bear the financial risk of loss presented by an investment in the
Partnership (which includes the risk of loss of such Partner's entire
investment), particularly in light of the risks that would be disclosed by a
detailed analysis of the Initial Development Plan and any Due Diligence
Materials with respect to the initial Investments or Properties (its access to
which, to the full extent such Partner has requested, hereby is confirmed by
such Partner) and the fact that the initial Investments are subject to
unpredictable real estate values, and the other risks of owning equity or debt
investments concerning real estate;
7.8.9 Such Partner has consulted with independent counsel of its
choice and recognizes that, although Battle Xxxxxx LLP ("BFLLP") serves as
special counsel to Affiliates of both Partner Groups on unrelated matters, BFLLP
has not represented the Highridge Partners or their Affiliates in connection
with the Partnership, is acting as the attorney for only the Xxxx-Xxxx Partners
in connection with the preparation and execution of this Agreement and the
formation of the Partnership and Investment Entities, and has not provided tax
or other legal advice to the Highridge Partners or their Affiliates in
connection therewith (the Highridge Partners and their Affiliates are relying on
Xxxx Xxxxxxxx, Esq. as their counsel in connection therewith). Each Partner
hereby waives all potential conflicts of interest resulting from BFLLP's
representation of Xxxx-Xxxx Partners hereunder, of the Highridge Partners (or
their Affiliates) and the Xxxx-Xxxx Partners (or their Affiliates) in unrelated
transactions, and resulting from BFLLP's or Xxxx Xxxxxxxx'x representation of
the Partnership or any Investment Entity in the future on matters for which
BFLLP or Xxxx Xxxxxxxx is retained as counsel by the Partnership or such
Investment Entity, PROVIDED, HOWEVER, that BFLLP shall not represent the
Partnership, any Partner, or any Partner's Affiliates in any adversarial
controversy among the Partnership, and/or any Partner or any Partner's
Affiliates (and no conflict waiver has been issued with respect to such
representation by BFLLP or by any Partner or its Affiliates in any such
controversy);
7.8.10 Such Partner is aware that transfers of interests in
the Partnership and within such Partner are subject to the restrictions set
forth in Article 7 hereof and that an investment in the Partnership is a
long-term investment, without liquidity;
7.8.11 Such Partner is not relying upon any of the other
Partners, nor any of their Affiliates as such Partner's agent to assess the
merits or risks of this investment, and such
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Partner understands that no projection of performance shall be actionable if not
achieved except in the circumstances specifically set forth in this Agreement;
7.8.12 None of the other Partners is acting as the
representative or agent or in any other capacity, fiduciary or otherwise, on
behalf of such Partner in connection with the Partnership, any Investment
Entity, the Investments or the other matters referred to in this Agreement;
7.8.13 None of the other Partners nor any of the other
Partner's agents or representatives has made any binding representations,
warranties, projections or assurances to such Partner with respect to the
Partnership, the Investments, the performance of the Partnership and the
Investments, the safety or the risks involved and/or the tax or economic
consequences thereof;
7.8.14 Such Partner is aware that the other Partner and/or the
other Partner's Affiliates now and in the future will be, and in the past have
been, engaged in businesses which are competitive with that of the Partnership
and/or the Investments, and that, no Partner or its Affiliates is required to
bring any Investments opportunities to the attention of the Partnership or any
Partner (or their Affiliates) for investment.
7.8.15 Such Partner is aware that compensation and
reimbursements may be payable to Affiliates of the Partners by the Partnership,
as addressed in this Agreement, including pursuant to the Approved Budget
attached as Exhibit C;
7.8.16 Such Partner understands that the federal, state and
local tax liability of such Partner with respect to the taxable income and gain
allocated to such Partner hereunder for any year may exceed the cash
distributions from the Partnership to such Partner and, if Tax Payment Loans are
unavailable for any reason, such Partner may have to look to sources other than
distributions from the Partnership to pay such tax;
7.8.17 Such Partner understands that it may lose its Approval
rights (and be subject to having such Partner's interest purchased by the
Partnership in certain circumstances) under Section 7.9 and the other provisions
of this Agreement if the Partner becomes a Terminated Partner or has committed a
Removal Default or Performance Default, and that it has waived its rights to a
trial by jury in any dispute concerning this Agreement or the Partnership under
Section 9.4;
7.8.18 Except as specifically provided in this Section 7.8,
such Partner is not relying upon any representation or warranty of any other
Partner, the Partnership, any Investment Entity or any of their respective
Affiliates, express or implied, oral or written, other than those contained in
this Agreement;
7.8.19 No Partner is required to cause the Controlling Persons
of such Partner to devote any specific portion of their time to Partnership
business other than as necessary to fulfill such Partner's obligations under
this Agreement, and such Controlling Persons are
65
expected to spend substantial amounts of their time on activities that are
unrelated to the Partnership;
7.8.20 Such Partner understands that the Partnership and its
Partners are relying on the accuracy of the representations set forth in this
Section 7.8 (or contained elsewhere in this Agreement) in entering into this
Agreement without requiring that the interests in the Partnership be registered
under federal or state securities laws;
7.8.21 With respect to the El Segundo Land, the Highridge
Partners make the representations and warranties set forth on Exhibit H; and
7.8.22 Each Partner Group represents that the ownership
interests in such Partner Group (and, in the case of the Highridge Partners, in
the direct and indirect owners thereof through all tiered Entities) is as set
forth on Exhibit E, and each of the Highridge Partners represents that the
partnership agreement or operating agreement pursuant to which each of the
Highridge Partners (and each of the direct and indirect, through one or more
intermediaries, partners or members thereof) is operated will at all times
during the term of this Agreement contain Transfer restrictions that prohibit a
violation of the Transfer restrictions contained in this Agreement.
7.9 TERMINATED PARTNER; REMOVAL DEFAULTS; PERFORMANCE DEFAULTS; PURCHASE
RIGHTS; CONTROL CHANGE NOTICES.
7.9.1 When a Partner becomes a Terminated Partner or is a Partner
in a Partner Group in which any Partner has committed a Removal Default, such
Partner shall automatically cease to have any Approval or voting rights under
this Agreement with respect to the Partnership and the Investment entities (and
each Property and Investment), except as provided in Section 5.1.6.1. When a
Partner becomes a Terminated Partner, (i) such Partner shall cease to be a
General Partner as provided in Section 7.9.5, (ii) upon the election of the
Partner Group who is not the Terminated Partner (the "Electing Partner"), given
by notice from the Electing Partner to the Terminated Partner (a "Purchase
Notice") at any time after a Partner becomes a Terminated Partner, the
Terminated Partner shall sell the Terminated Partner's entire interest in the
Partnership to the Partnership (or to the Electing Partner Group or its designee
as set forth in Section 7.9.4), at a price (the "Buy-Out Price") to be
determined as hereinafter provided. The Electing Partner shall notify the
Terminated Partner in writing of its election (exercisable at any time after a
Partner becomes a Terminated Partner) under this clause (ii); and (iii) the
other provisions applicable by reason of becoming a Terminated Partner
(including Sections 7.9.5 and 8.1.1) shall apply.
If a Purchase Notice has been given under clause (ii) above, the Electing
Partner and the Terminated Partner shall attempt to agree upon the Buy-Out Price
of the Terminated Partner's entire interest in the Partnership. If such
agreement is not reached within thirty (30) days after the notice of election is
given, the Terminated Partner, on the one hand, and the Electing Partner, on the
other hand, shall each, within ten (10) additional days, appoint an M.A.I.
accredited appraiser by notice to the other. The two appraisers so appointed
shall, within five (5) additional days, appoint a third M.A.I. accredited
appraiser and the three
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appraisers shall meet to determine the gross proceeds which would have been
received by the Partnership if the Partnership and each Investment Entity sold,
on the Termination Date, all of their assets (other than interests in each
other) for cash at their then fair market value, less all costs and expenses of
sale, including closing costs, real estate brokerage commissions and fees, title
insurance premiums and escrow fees, appropriate reserves and legal and other
expenses incident to such sale (the "Appraised Value"). The Appraised Value
shall equal the amount determined by the three appraisers, or if there is a
dispute among the three appraisers as to value, the value established by the
third appraiser shall be the Appraised Value (but the Appraised Value shall not
exceed the highest, or be less than the lowest, value established by the other
two appraisers). The cost of such appraisal shall be borne 50% by the Electing
Partner and 50% by the Terminated Partner. The Buy-Out Price shall equal
(i) the amount the Terminated Partner would receive under Sections 4.1 and 4.2
if all of the assets of the Partnership and each Investment Entity (other than
interests in each other) were sold to a third party for the Appraised Value and
the Partnership were liquidated, after paying creditors and withholding
therefrom any amounts payable by the Terminated Partner under Sections 4.3.2,
5.5.3 and 9.2 and the other provisions of this Agreement, minus (ii) in the case
of a Major Default, 10% of the Buy-Out Price (determined before adjustment
thereof under this clause (ii)). If the Partnership redeems the Terminated
Partner, there shall be no discount in the Buy-Out Price for any encumbrances to
which such redeemed interest is subject, but the Partnership shall apply the
proceeds of such redemption to satisfy such encumbrances instead of making
distributions thereof to the Terminated Partner to the extent required by law
(such distributions being deemed for all purposes to have been made to the
Terminated Partner by the Partnership and then paid by the Terminated Partner to
satisfy such encumbrances). If the interest of the Terminated Partner is
purchased by the Electing Partner (or its designee), and not by the Partnership,
pursuant to Section 7.9.4, the Buy-Out Price for the Terminated Partner's
interest as determined above shall be reduced to the extent the Electing Partner
or its designee acquires the Terminated Partner's interest subject to (or
assumes) the encumbrances on such interest at the closing. Within ten (10) days
following the determination of the Buy-Out Price, the Electing Partner may
elect, in its sole and absolute discretion, by notice to the Terminated Partner,
to rescind any notice pursuant to this Section 7.9.1, in which event the right
to elect to cause the Terminated Partner to sell its interest to the Partnership
or to the other Partner (or its designee) pursuant to this Section 7.9.1 as a
result of the event(s) which led to the Purchase Notice (but not any future
event which would authorize any such notice) shall no longer be of any force or
effect.
7.9.2 The purchase and sale of the Terminated Partner's interest
in the Partnership pursuant to this Section 7.9 shall be consummated on or
before the thirtieth (30th) day following the date upon which the Buy-Out Price
was determined (whether by agreement of the Terminated Partner and the Electing
Partner or by appraisal), at the offices of the Partnership, or at such other
time and place as may be agreed upon by the Terminated Partner and the Electing
Partner. At the closing of such purchase and sale (the "Closing Date"), the
Terminated Partner shall execute and deliver to the Partnership (or the Electing
Partner or its designee, as appropriate) such instruments of assignment,
conveyance and transfer as the Electing Partner may reasonably deem necessary or
appropriate to consummate the purchase and sale, and the purchaser shall pay
cash to the Terminated Partner in the amount of the Buy-Out Price (adjusted for
encumbrances to the extent provided in Section 7.9.1).
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7.9.3 Following the Closing Date, (a) the Partnership shall
indemnify and hold the Terminated Partner harmless from and against all
liabilities of the Partnership arising from acts taken or omitted to be taken by
the Partnership after the date of the closing of the sale of the Terminated
Partner's interest to the Partnership (or to the Electing Partner or its
designee, as appropriate), and (b) the indemnity and liability provisions of
Sections 3.5.4 and 5.5 shall continue to apply with respect to the Terminated
Partner and its Affiliates.
7.9.4 The Partnership shall fund the purchase of the Terminated
Partner's interest pursuant to this Section 7.9 by borrowings or, if the
remaining Partner so Approves, by additional Capital Contributions from the
Electing Partner, such borrowings or Capital Contributions to occur when needed
to make the required payment of the Buy-Out Price. If the Electing Partner so
Approves, the interest of the Terminated Partner shall be purchased by the
Electing Partner (or its designee, which designee shall be admitted as a Partner
hereunder simultaneously with the closing of such purchase of the Terminated
Partner's interest in order to avoid a termination of the Partnership, if the
remaining Partner so elects by giving notice thereof to the Terminated Partner
prior to such closing).
7.9.5 (a) The Xxxx-Xxxx Limited Partner shall have the right to
appoint a Co-General Partner by notice to the Highridge Partners at any time
after it has issued (or simultaneously with its issuance of) a Control Change
Notice to the Highridge Partners under this Section 7.9.5, and such Co-General
Partner shall automatically be admitted as a general partner of the Partnership
under the Act, and become a General Partner of the Partnership under this
Agreement, upon the Co-General Partner and each other Xxxx-Xxxx Partner
executing and delivering to all of the Partners an amendment to this Agreement
pursuant to which the Co-General Partner agrees to be bound by the terms of this
Agreement (such amendment need not be executed or Approved by any Highridge
Partner in order to be valid). The interest in the Partnership granted to any
Co-General Partner shall be as specified by notice to the Highridge Partners
from the Xxxx-Xxxx Limited Partner and shall reduce the interest in the
Partnership of the Xxxx-Xxxx Limited Partner accordingly. Any Co-General
Partner shall be an Affiliate of the Xxxx-Xxxx Limited Partner.
At any time after the Managing General Partner has been deemed to be a
Terminated Partner or to have committed a Removal Default under Section 5.9, the
Xxxx-Xxxx Limited Partner may elect, effective immediately upon the Xxxx-Xxxx
Limited Partner giving notice to the Highridge Partners, that the Co-General
Partner shall become the Managing General Partner and shall assume the Managing
General Partner's authority and responsibility in connection with the operation
of the Partnership (but the Managing General Partner shall retain Approval
rights to the extent set forth in Section 5.1.6.1). Such assumption shall be
effective, the Managing General Partner shall cease to be the Managing General
Partner and shall have its entire interest reconstituted from a General
Partner's interest to that of a Limited Partner having equivalent distribution
and tax allocation rights to that previously held by it as a General Partner,
the Co-General Partner shall become the Managing General Partner, and the
Partnership shall be reconstituted and continued and shall not dissolve, upon
the later to occur of (i) five (5) Business Days after the receipt by the
Managing General Partner of such notice from the Xxxx-Xxxx Limited Partner that
it has elected such assumption by the Co-
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General Partner pursuant to this Section 7.9.5 (together with any notice
described in Section 7.9.5(b), a "Control Change Notice"), or (ii) if the
Managing General Partner in good faith denies the assertion that it is a
Terminated Partner or that it has committed a Removal Default by giving notice
of such denial to the Xxxx-Xxxx Limited Partner within five (5) Business Days
after receipt by the Managing General Partner of a Control Change Notice, the
Determination Date for purposes of this Section 7.9.5, as determined pursuant to
the procedure described in Section 5.9. Notwithstanding anything to the
contrary contained in this Agreement, the Co-General Partner shall have the
right to cause the Partnership to borrow money at any time pursuant to any loan
agreement (and/or other documents entered into by the Managing General Partner
and/or its Affiliates in connection with such agreement) that has been Approved
by the Managing General Partner prior to the Managing General Partner becoming a
Terminated Partner or being deemed to have committed a Removal Default under
this Agreement, even if under such agreement (and/or such other documents), the
Managing General Partner and/or its Affiliates would have personal liability
with respect to the repayment of such borrowings (but the indemnity provisions
of Article 5 shall continue to apply with respect to the Highridge Partners and
any such borrowing).
(b) If the Managing General Partner is deemed to have
committed a Performance Default with respect to a Property or Investment under
Section 5.9, and the Xxxx-Xxxx Limited Partner has appointed a Co-General
Partner as provided in this Section 7.9.5, such Co-General Partner shall be
entitled to assume complete control over the construction, stabilization,
operation and disposition of such Property or Investment. If the Xxxx-Xxxx
Limited Partner has not appointed a Co-General Partner, the Xxxx-Xxxx Limited
Partner shall nonetheless have the rights set forth in Section 5.10(ii) with
respect to such Property or Investment. The Xxxx-Xxxx Limited Partner may give
notice to the Managing General Partner at any time after it in good faith
believes that the Managing General Partner has committed a Performance Default
stating that it believes that such Performance Default has occurred (such notice
shall constitute a "Control Change Notice" for purposes of this Agreement). The
change in control described in this Section 7.9.5(b) (and the rights of the
Xxxx-Xxxx Limited Partner under Section 5.10(ii) to control certain actions and
decisions) shall be effective upon the later to occur of (i) five (5) Business
Days after the receipt by the Managing General Partner of the Control Change
Notice with respect to such Performance Default, or (ii) if the Managing General
Partner in good faith denies the assertion that it has committed a Performance
Default by giving notice of such denial to the Xxxx-Xxxx Limited Partner within
five (5) Business Days after receipt by it of a Control Change Notice, the
Determination Date for purposes of this Section 7.9.5, as determined pursuant to
the procedure described in Section 5.9.
7.9.6 The Partners have agreed to the remedies contained in this
Section 7.9 for the reasons set forth in Section 7.7.
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ARTICLE 8
TERM, DISSOLUTION AND TERMINATION
8.1 EVENTS OF DISSOLUTION. The Partnership shall continue until DECEMBER
31, 2005, or such later date as is Approved by the Partners; PROVIDED, HOWEVER,
that dissolution and liquidation shall occur prior to that date upon the
occurrence of any one of the following events:
8.1.1 An election to dissolve the Partnership being made in
writing by the Approval of the Partners other than any Terminated Partner or
Partner who has committed a Removal Default;
8.1.2 The sale for cash, exchange or other disposition of all or
substantially all of the assets of the Partnership and each Investment Entity;
8.1.3 The Bankruptcy or dissolution (without reconstitution within
sixty (60) days thereafter) of any General Partner, unless the Partnership is
reconstituted and continued as provided in Section 8.4; or
8.1.4 Any other event resulting in the dissolution or liquidation
of the Partnership that is expressly described in this Agreement.
8.2 LIMITATION ON DISSOLUTION. Until the dissolution of the Partnership
otherwise occurs, no Partner shall voluntarily retire, resign or withdraw from
the Partnership, take any step voluntarily to dissolve itself or voluntarily
cause a dissolution of the Partnership, except as provided in this Agreement
(including Section 8.1).
8.3 LIQUIDATION AND WINDING UP.
8.3.1 If the Partnership is dissolved for any reason and is not
reconstituted pursuant to Section 8.4.1, each of the Xxxx-Xxxx Limited Partner
and the Managing General Partner, unless such Partner is a Terminated Partner or
has committed a Removal Default (collectively, the "Liquidator") shall commence
to wind up the affairs of the Partnership, to liquidate and sell the Properties
and to liquidate the Investment Entities in an orderly manner as reasonably
Approved by the Partners (subject to Section 5.10(i)) as soon as is practicable
thereafter. A third-party liquidator may be appointed if Approved by the
Partners. Any Liquidator other than the Partners shall have sufficient business
expertise and competence to conduct the winding up and termination of the
business of the Partnership. No Liquidator who is a Partner shall be paid any
compensation or fee for conducting the liquidation of the Partnership or any
Investment Entity. Notwithstanding anything to the contrary contained in this
Agreement, if one Partner Group has the unilateral right (without the Approval
of the other Partner Group) to cause the sale or other disposition of a Property
or Investment under any provision of this Agreement, such Partner Group shall be
the Liquidator with respect to such Property or Investment and may sell or
otherwise dispose of such Property or Investment on such terms as shall be
Approved by such Partner Group (whether during the term of the
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Partnership or in liquidation), subject, however, to the restrictions on
transfers of such Property or Investment to Affiliates of such Partner Group
that are contained in this Agreement (including Section 5.11).
8.3.2 The Liquidator shall proceed with such liquidation in as
expeditious a manner as is reasonably practicable. The holders of interests in
the Partnership shall continue to share income and losses during the period of
liquidation in accordance with Article 4.
8.3.3 If a Partner or an Affiliate of a Partner desires to
purchase any of the Partnership's remaining assets, the price, terms and
conditions of such purchase shall be subject to the Approval of the Partners and
the restrictions described in this Agreement (including Section 5.11) on
transactions with Affiliates.
8.3.4 Except as expressly provided in this Article 8, any
Liquidator which is not a Partner shall have and may exercise all of the powers
conferred upon the Managing General Partner under the terms of this Agreement
(but subject to all of the applicable limitations, contractual and otherwise,
upon the exercise of such powers), to the extent necessary or desirable in the
good faith judgment of the Liquidator to carry out the duties and functions of
the Liquidator hereunder for and during the Liquidation Period.
8.3.5 If (i) the Partnership is dissolved for any reason and is
not reconstituted and continued pursuant to Section 8.4.1, (ii) all General
Partners have become Bankrupt or been dissolved, and (iii) within ninety (90)
days following the date of dissolution a Liquidator or successor Liquidator has
not been appointed by the remaining Partners pursuant to Section 8.3.1, any
interested party shall have the right to seek judicial supervision of the
winding up of the Partnership pursuant to the Act.
8.3.6 After making payment or provision for payment of all debts
and liabilities of the Partnership and all expenses of liquidation, the
Liquidator shall establish, for a period not to exceed twelve (12) months after
the date the liquidation is complete, such cash reserves as are reasonably
necessary for any foreseeable, contingent or unforeseen liabilities or
obligations of the Partnership, the Investment Entities or the Partners or their
Affiliates with respect to the Partnership obligations.
8.3.7 After the liquidation of the Partnership or the acquisition
of an Investment or Property from the Partnership by a Partner Group, the
Partners and/or their Affiliates may employ Persons who previously were employed
by the Partnership or an Investment Entity, PROVIDED, HOWEVER, that neither the
Xxxx-Xxxx Partners nor the Highridge Partners may engage the services of any
Partnership or Investment Entity employee (other than any on-site employee of a
Property in which all of the interests of the Partners have been acquired by one
Partner Group if such employee has no responsibilities with respect to any other
Property owned by the Partnership or an Investment Entity, E.G., a day xxxxxx)
except upon six months' prior notice to the other (whether within the first
twelve (12) months after the liquidation of the Partnership or otherwise), and
no employee of the Partnership shall render services simultaneously to the
Partnership or an Investment Entity and to any Partner or its Affiliates without
the Approval of both the Xxxx-Xxxx Partners and the Highridge Partners.
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8.3.8 This Section 8.3.8 shall apply if Partnership assets or
Investment Entity assets are sold for consideration that includes notes payable
to the Partnership (or payable to an Investment Entity) or interests in a REIT,
and the provisions of this Section 8.3.8 shall apply notwithstanding any other
provision of this Agreement.
(a) To the extent such consideration includes notes payable, such
notes payable shall, upon receipt by the Partnership or any Investment Entity,
be distributed in-kind to the Partners. The Gross Asset Value of such notes at
the time of such distribution shall be the principal amount payable under such
notes if held to maturity. Each Partner shall have an undivided interest in
such notes equal to the percentage obtained by multiplying the Gross Asset Value
of such notes by a fraction whose numerator equals the amount such Partner would
receive under Sections 4.1 and 4.2 if cash equal to such Gross Asset Value were
paid to the Partner pursuant to such Sections as loan repayments or
distributions instead of such notes, and whose denominator equals such Gross
Asset Value. The Partner shall own such notes pursuant to a tenancy-in-common
agreement to be reasonably Approved by the Partners at the time of such
disposition (such tenancy-in-common agreement shall be prepared at Partnership
expense).
(b) To the extent such consideration consists of interests in a REIT,
such interests shall, upon receipt by the Partnership or any Investment Entity,
be distributed in-kind to the Partners except as otherwise set forth below in
Section 8.3.8(c). The Gross Asset Value of such interests at the time of such
distribution ("REIT Share Value") shall be:
(i) in the case of publicly traded stock, the share
price at the time of such receipt by the Partnership multiplied by the
number of shares of stock received by the Partnership;
(ii) in the case of interests that are convertible into
publicly traded stock, the share price (at the time of the receipt by
the Partnership of such interests) of such publicly traded stock
multiplied by the number of shares of such stock into which such
interests are convertible;
(iii) in the case of interests that are neither
publicly traded nor convertible into publicly traded stock, the value
of the property of the Partnership or Investment Entity disposed of to
the REIT as set forth in the documents pursuant to which such
disposition was made to the REIT (or if no such value is set forth in
such documents, the fair market value of such property determined
under Section 5.10(iii), such determination to be made without regard
to any restrictions to which such interests are subject or any
minority or liquidity discount with respect thereto).
Each Partner shall receive a distribution of such portion of the interests in
the REIT equal to the percentage obtained by multiplying the aggregate REIT
Share Value of all interests in the REIT that are received by the Partnership or
Investment Entity by a fraction (A) whose numerator equals the amount such
Partner would receive under Sections 4.1 and 4.2 if cash
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equal to such aggregate REIT Share Value were paid to the Partners pursuant to
such Sections as loan repayments or distributions instead of such interests in
the REIT, and (B) whose denominator equals such aggregate REIT Share Value.
(c) Notwithstanding the provisions of Section 8.3.8(b), distributions
of interests in a REIT shall not be required (unless otherwise Approved by the
General Partners) for so long as such distribution is prohibited by the
documents pursuant to which such interests were received (the Partners
conducting the transaction with the REIT shall make reasonable, good faith
attempts to avoid such a prohibition). If the interests in the REIT are not
distributed to the Partners at the time of their receipt by reason of the
operation of this Section 8.3.8(c), (I) such interests shall nevertheless be
deemed to have been distributed to the Partners, for all purposes of this
Agreement, at the time of their receipt by the Partnership or Investment Entity
in proportion to the percentage thereof that each Partner would receive if such
interests were distributed at the time receipt under Section 8.3.8(b), and (II)
upon the ultimate distribution of such interests in the REIT or the proceeds
from the sale or other disposition thereof by the Partnership, each Partner
shall receive the percentage thereof determined pursuant to clause (I) of this
Section 8.3.8(c) (regardless of the value of such interests at the time of such
ultimate distribution or the amount of the proceeds from the sale or other
disposition thereof).
(d) The Partners conducting the transaction with the REIT shall use
reasonable good faith efforts to structure any disposition of Partnership or
Investment Entity assets for notes or interests in a REIT in a manner that will
facilitate compliance with this Section 8.3.8.
8.4 RECONSTITUTION AFTER BANKRUPTCY OR DISSOLUTION OF A GENERAL PARTNER.
8.4.1 Upon the Bankruptcy or dissolution (without reconstitution
within sixty (60) days thereafter) of any of the General Partners, the
Partnership shall be dissolved and liquidated unless within ninety (90) days
subsequent to such event the remaining Partners (other than Partners in the same
Partner Group as the Bankrupt General Partner) so elect, by giving notice to all
Partners, to reconstitute the Partnership and to continue the business of the
Partnership. If such election is made, then (i) the Partnership shall not be
dissolved and liquidated; (ii) the Partnership and the business of the
Partnership may be reconstituted and continued, under and pursuant to the
provisions of this Agreement; (iii) the Terminated Partner's interest in the
Partnership may be purchased as set forth in Section 7.9, and upon such
Bankruptcy or dissolution, the other rights against a Terminated Partner under
Section 7.9 shall also apply to the extent applicable; and (iv) the Certificate
shall be amended to reflect such continuation.
8.5 DISTRIBUTION UPON DISSOLUTION AND CAPITAL ACCOUNT ADJUSTMENTS. Upon
dissolution of the Partnership without reconstitution as permitted by this
Article 8, the Partnership's assets shall be sold or otherwise disposed of to
third parties as directed by the Liquidator (subject to Sections 5.10, 5.11 and
8.3.8), and, after paying or providing for liabilities owing to creditors and
the establishment of such reserves as are reasonably necessary for foreseeable,
contingent or unforeseen liabilities or obligations of the Partnership, the
Investment Entities, or the Partners or their Affiliates with respect to
Partnership or
73
Investment Entity obligations for a period of up to twelve (12) months after the
liquidation has been completed, the remaining liquidation proceeds (and the
reserves, after the expiration of a reasonable period of time of up to twelve
(12) months after the liquidation has been completed) shall be distributed
pursuant to Section 4.2 (subject to Section 8.3.8).
8.6 COMPLIANCE WITH TIMING REQUIREMENTS OF TREASURY REGULATIONS.
Notwithstanding anything in this Article 8 to the contrary, in the event the
Partnership is "liquidated" within the meaning of Regulations Section
1.704-1(b)(2)(ii)(g), distributions shall be made to the Partners within the
time required by Regulations Section 1.704-1(b)(2)(ii)(b)(2) to the extent
practicable. However, a liquidation occurring as a result of a Tax Termination
shall be treated as provided in Regulations Section 1.708-1(b)(1)(iv), or
otherwise as required by successor Regulations, if any.
ARTICLE 9
MISCELLANEOUS
9.1 OTHER INTERESTS. No Partner and no Affiliate of a Partner shall have
any right, by virtue of this Agreement or otherwise, to share or participate in
or to Approve any other investments or activities of any other Partner or the
income or proceeds derived therefrom. No Partner and no Affiliate of any
Partner shall be obligated to offer or to bring to the attention of the
Partnership, any other Partner or its Affiliates, any property or other business
investment or opportunity, whether or not within the scope of the Partnership's
purposes, and any Partner and any Affiliate of any Partner may at any time
during the term of the Partnership own, invest in, develop or manage, directly
or indirectly, any property or other business investment or opportunity, whether
or not competitive with the Partnership, any Investment Entity, the Properties,
the Investments or the Partnership's or any Investment Entity's other assets,
and whether or not within the scope of the Partnership purposes. Each of the
Partners acknowledges and agrees that each Partner and its Affiliates have
engaged or invested in, are now engaged and investing in and will in the future
be offered, consider, engage and/or invest in other business or real property
ventures of every kind and nature, including the ownership, acquisition,
financing, leasing, operating, management, syndication, brokerage and
development of real property and other investments and opportunities to make or
purchase loans which are competitive with the Properties and/or the Investments
and the business of the Partnership and the Investment Entities, and none of the
Partners or their Affiliates shall have any obligation or responsibility to
disclose, account for or offer any of such real properties, investments or
opportunities to the Partnership or any Partner or their Affiliates, and the
Partnership, the Partners and their Affiliates shall have no rights or interests
therein.
74
9.2 DAMAGES; CERTAIN CURE RIGHTS; OFFSET. Each Partner shall be liable to
the Partnership and the other Partners for any actual (but not consequential or
incidental) damages arising from any breach of this Agreement. Except as
provided in Sections 2.1.2, 2.2.2.1, 3.5.4, 3.11, 4.3.2, 5.5.1, 5.5.3 or 7.6,
the liability of any Partner shall be limited to such Partner's interest in the
Partnership. Upon any alleged breach or default of this Agreement by any
Partner, it shall be a condition to any action against such Partner that such
Partner shall have received notice of such alleged breach or default (which may
be any notice otherwise required by this Agreement) and that such Partner shall
have failed to completely (at its expense, without right of reimbursement from
the Partnership or the other Partners) cure or commence to completely cure such
alleged breach or default within thirty (30) days following such notice and
failed, at all times thereafter, to use diligent efforts to pursue such cure to
completion, but in no event beyond ninety (90) days. Notwithstanding anything
in this Agreement to the contrary, (a) there shall be no cure period for a Major
Default, and (b) the only cure period for failure timely to make a Capital
Contribution under Article 2 is set forth in Sections 2.2.1 and 2.2.2.
Notwithstanding anything in this Agreement to the contrary, all amounts payable
to a Partner under this Agreement or to a Partner or an Affiliate of a Partner
under any agreement with the Partnership or an Investment Entity shall be
subject to offset for amounts owed to the Partnership or the other Partners and
their Affiliates by such Partner or its Affiliates under this Agreement or such
agreement with such Affiliate and shall be withheld and either retained by the
Partnership or reallocated to the other Partners in a reasonable manner, as the
case may be. If a Partner breaches this Agreement and fails to cure such breach
within the time required by this Section 9.2, the Partners of the other Partner
Group may take such actions (or cause the Partnership or any Investment Entity
to take such actions) as are reasonably necessary to cure such breach at the
breaching Partner's expense. If the Partners have established a course of
conduct of granting Approvals orally as provided in Section 1.12, no Partner
will be liable for any breach of this Agreement (regardless of whether such
breach is capable of being cured) if such Partner reasonably and in good faith
believed that such action was consented to orally by the other Partner Group;
PROVIDED, HOWEVER, that the foregoing shall not apply with respect to the
Approvals described in the last sentence of Section 1.12. Notwithstanding
anything in this Agreement to the contrary, (i) no Highridge Partner shall be
liable for any mistakes made by it in implementing the Development Plan for any
Property that are made in good faith and do not constitute gross negligence,
actual fraud or intentional misappropriation of funds and (ii) for purposes of
applying Section 5.5 and this Section 9.2, a Highridge Partner shall not be
liable for (or be ineligible to receive indemnification under Section 5.5 by
reason of) the acts of any Affiliate of the Highridge Partners or of any
employee of any Highridge Partner or their Affiliates, or be liable for (or be
ineligible to receive indemnification under Section 5.5 by reason of) the acts
of any Affiliate of any Highridge Partner, except to the extent that the act of
such employee or Affiliate in question (A) occurred as a result of the failure
of a Highridge Partner to conduct the employee and Affiliate supervision
procedures to the extent required under Exhibit J or (B) occurred with the prior
actual and specific knowledge of Xxxx X. Xxxx, Xxxxxx X. Xxxxxxxxx or Xxxxxx X.
Xxxxxxxxx.
9.3 NO AGENCY. Except as provided herein, nothing herein contained shall
be construed to constitute any Partner hereof the agent of any other Partner
hereof or to limit in any manner the carrying on of each Partner's respective
businesses or activities.
75
9.4 GOVERNING LAW. It is the intent of the parties hereto that all
questions with respect to the construction of this Agreement and the rights and
liabilities of the parties hereto shall be determined in accordance with the
provisions of the laws of the State of Delaware as applicable to a limited
partnership formed under the Act. The United States District Court for the
Central District of California, the Superior Court for Los Angeles County,
California and the United States District Court for the Eastern District of New
York shall be the exclusive appropriate venues to litigate questions of
interpretation under this Agreement or the rights of the parties hereunder.
Each of the parties hereto hereby waives any and all rights to a trial by jury
with respect to any dispute among the Partners or their Affiliates or among a
Partner (or its Affiliates) and the Partnership concerning this Agreement, the
Partnership, any Investment Entity or any Investment or Property. In any
dispute among the Partners concerning the Partnership or this Agreement, the
prevailing Partner(s) shall be entitled to recover its reasonable attorneys'
fees and costs (including litigation and collection costs) from the
non-prevailing Partner(s).
9.5 NOTICES. Any notices or solicitations of Approval required or
permitted to be given under the terms of this Agreement shall be in writing and
shall be deemed to have been given when (i) personally delivered with signed
delivery receipt obtained, (ii) when transmitted by facsimile machine, if
followed by a mailing thereof pursuant to this Section 9.5 before the end of the
first business day thereafter, with printed confirmation of successful
transmission to the facsimile number set forth in the appropriate address listed
below being obtained by the sender from the sender's facsimile machine or
telephonically from the addressee, or (iii) when deposited in the United States
first class mail if sent postage prepaid by registered or certified mail, return
receipt requested, in each case addressed as follows:
IF TO ANY OF THE XXXX-XXXX PARTNERS, to it in care of:
Xx. Xxxxxxxx X. Xxxxx
Xxxxx X. Xxxxxx, Esq.
Xxxx-Xxxx Realty Corporation
00 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxx Xxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Battle Xxxxxx LLP
1999 Avenue of the Stars, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxx, Esq.
Phone: (000) 000-0000
Fax: (000) 000-0000
76
IF TO ANY OF THE HIGHRIDGE PARTNERS, to it in care of:
Mr. Xxxx Xxxx
Xx. Xxxx Xxxxxxxxx
Xx. Xxxxxx Xxxxxxxxx
c/o Highridge Partners, Inc.
000 Xxxxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xx Xxxxxxx, Xxxxxxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Xxxx Xxxxxxxx, Esq.
000 Xxxxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xx Xxxxxxx, Xxxxxxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
The time to respond to any notice shall commence to run on the date of delivery
at the appropriate addresses (or attempted delivery if delivery is refused
during normal business hours). A Partner may change the address to which
notices shall be sent to it, or any of its Authorized Representatives, by
written notice to all Partners (said change of address or of Authorized
Representatives to be effective upon receipt by all Partners).
9.6 PRONOUNS AND PLURALS. References herein to the singular shall include
the plural and to the plural shall include the singular, and references to the
masculine gender shall include the feminine and neuter genders (and vice versa),
except where the same shall not be appropriate.
9.7 WAIVER. No consent or waiver, express or implied, by any Partner to
or of any breach or default by any other Partner in the performance by the other
of its obligations hereunder shall be deemed or construed to be a consent or
waiver to or of any other breach or default by the other in the performance by
such other party of the same or any other obligations of such Partner hereunder.
Failure on the part of any Partner to object to or complain of any act or
failure to act of any other Partner or to declare any other Partner in default,
irrespective of how long such failure continues, shall not constitute a waiver
by such Partner of its rights hereunder.
9.8 SEVERABILITY. If any provision of this Agreement or the application
thereof to any Person or circumstance shall be invalid or unenforceable to any
extent, the remainder of this Agreement and the application of such provisions
to other Persons or circumstances shall not be affected thereby and shall be
enforced to the greatest extent permitted by law.
77
9.9 TITLES AND CAPTIONS. All Article or Section titles or captions
contained in this Agreement are for convenience only and shall not be deemed a
part of the content of this Agreement.
9.10 AGREEMENT IN COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same instrument when taken together. In addition, this
Agreement may contain more than one counterpart of the signature page and the
Agreement may be executed by the affixing of the signatures of each of the
Partners to one or more of such counterpart signature pages; all of such
signature pages shall be read as though one, and shall have the same force and
effect as though all of the signers had signed a single signature page. A
Partner shall be deemed to have executed and delivered this Agreement if and
when it has manually executed a counterpart signature page to this Agreement,
transmitted a copy of the same by facsimile to the other Partners at such other
Partner's facsimile number set forth above, and received a printed confirmation
of the successful receipt thereof by such other Partner. This Agreement shall
not be binding on Partners hereto unless each Partner shall have executed and
delivered a copy of this Agreement to the other Partners. If this Agreement is
executed and delivered by facsimile, each Partner who transmits its signature
page for this Agreement by facsimile shall promptly forward a manually executed
signature page to the other Partner (but a Partner's failure to do so promptly
shall not affect the validity of its execution and delivery of this Agreement by
facsimile transmission).
9.11 BINDING AGREEMENT. This Agreement shall inure to the benefit of and be
binding upon the undersigned Partners and their respective heirs, executors,
legal or personal representatives, successors and assigns. Whenever in this
instrument a reference to any party or Partner is made, such reference shall be
deemed to include a reference to the heirs, executors, legal or personal
representatives, successors and assigns of such party or Partner.
9.12 FURTHER ASSURANCES. Each Partner shall execute and deliver such
further instruments and do such further acts and things as may reasonably be
required to carry out the intent and purposes of this Agreement promptly upon
request from any other Partner.
9.13 WAIVER OF PARTITION. Unless otherwise specifically provided in this
Agreement (including Article 8), no Partner shall, and each Partner hereby
irrevocably waives the right to, either directly or indirectly, take any action
to require partition or appraisement of the Partnership, any Property, any
Investment, any Investment Entity, or any part thereof, and, notwithstanding any
provision of applicable law to the contrary, each Partner hereby irrevocably
waives any and all right to maintain any action for partition or to compel any
sale with respect to its interest in the Partnership or with respect to the
assets of the Partnership or the Investment Entities, or any part thereof.
9.14 ENTIRE AGREEMENT. This Agreement contains the final and entire
agreement among the parties hereto with respect to the subject matter hereof,
including the Investments, and they shall not be bound by any terms, conditions,
statements or representations, oral or written, with respect thereto that are
not contained herein.
78
9.15 AMENDMENTS. Except as expressly provided in this Agreement (including
Section 7.9.5), this Agreement may be modified or amended only upon the Approval
of the Partners.
9.16 NO DRAFTING PRESUMPTION. In interpreting the provisions of this
Agreement, no presumption shall apply against any Partner that otherwise would
operate against such Partner by reason of such document having been drafted by
such Partner or at the direction of such Partner or an Affiliate of such
Partner.
9.17 NO THIRD-PARTY BENEFICIARIES. Except for the representations
concerning conflict waivers pertaining to BFLLP in Section 7.8.9 (which shall
inure to the benefit of BFLLP), the provisions of this Agreement are not
intended to be for the benefit of any creditor or other Person (other than the
Partners in their capacities as such) to whom any debts, liabilities or
obligations are owed by (or who otherwise have a claim against or dealings with)
the Partnership or the Partners, and no such creditor or other Person shall
obtain any rights under any of such provisions (whether as a third-party
beneficiary or otherwise) or shall by reason of any such provisions make any
claim in respect to any debt, liability or obligation (or otherwise) including
any debt, liability or obligation with respect to Capital Contributions, against
the Partnership or the Partners. In addition, no deficit balance in any
Partner's Capital Account or in the capital account of any partner or Partner of
a Partner shall be an asset of the Partnership, and no Partner shall be
obligated to restore any such deficit balance.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, this Agreement of Limited Partnership is executed, and
is effective for all purposes, as of the date first set forth above.
GENERAL PARTNER:
HCG DEVELOPMENT, L.L.C.,
a Delaware limited liability company
By: Highridge Asset Management, L.L.C.,
a Delaware limited liability company
By: Highridge Management, Inc.,
a California corporation, its
Managing Member
By:
---------------------------------
Name:
----------------------------
Title:
---------------------------
[SIGNATURES CONTINUED ON NEXT PAGE]
80
LIMITED PARTNERS:
SUMMIT PARTNERS I, L.L.C.,
a Delaware limited liability company
By: Highridge Asset Management, L.L.C.,
a Delaware limited liability company,
its Manager
By: Highridge Management Inc.,
a California corporation
its Managing Member
By:
---------------------------------
Name:
----------------------------
Title:
---------------------------
XXXX-XXXX CALIFORNIA DEVELOPMENT ASSOCIATES L.P.,
a California limited partnership
By: XXXX-XXXX SUB XXI, INC.,
a Delaware corporation, its general partner
By:
--------------------------------------
By:
---------------------------------
Name:
----------------------------
Title:
---------------------------
EXECUTED BY EACH OF THE UNDERSIGNED
SOLELY TO CONFIRM THE PROVISIONS OF
SECTION 3.11 THAT APPLY TO HIM:
-------------------------
XXXX X. XXXX
-------------------------
XXXXXX X. XXXXXXXXX
[END OF SIGNATURES]
81
EXHIBIT A
DEFINED TERMS
Capitalized terms that are used in the Agreement of Limited Partnership to
which this Exhibit is attached shall have the meaning set forth below in this
Exhibit A:
"ABANDONMENT DECISION" is defined in Section 5.10(iv).
"ACQUISITION DOCUMENTS" means the documentation necessary to acquire any
Investment or Property that has been Approved by the Partners for acquisition,
including any acquisition loan documentation.
"ACT" shall mean the Delaware Revised Uniform Limited Partnership Act, as
amended from time to time (Delaware Code, Title 6, Sections 17-101, ET SEQ.).
"ADJUSTED CAPITAL ACCOUNT DEFICIT" shall mean, with respect to any Partner,
the deficit balance, if any, in such Partner's Capital Account as of the end of
the relevant tax year, after giving effect to the following adjustments:
Credit to such Capital Account any amounts which such
Partner is obligated to restore or is deemed to be obligated to restore to the
Partnership pursuant to the penultimate sentences of Regulations Sections
1.704-2(g)(1) and 1.704-2(i)(5); and
Debit to such Capital Account the items described in
Sections 1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5), and
1.704-1(b)(2)(ii)(d)(6) of the Regulations.
The foregoing definition of Adjusted Capital Account Deficit is intended to
comply with the provisions of Section 1.704-1(b)(2)(ii)(d) of the Regulations
and shall be interpreted consistently therewith.
"AFFILIATE" shall mean (a) with respect to any Highridge Partner: Xxxx X.
Xxxx, Xxxxxx X. Xxxxxxxxx, their Family Members, the Highridge GP, the Highridge
Limited Partner, and any Entity Controlled, Controlling or under common Control
(directly or indirectly) by or with one or more of them and/or their Affiliates,
and (b) with respect to any Xxxx-Xxxx Partner: the Xxxx-Xxxx Limited Partner,
any Co-General Partner and any Entity Controlled, Controlling or under Common
Control (directly or indirectly) by or with one or more of them and/or any of
their Affiliates. For the purposes of this Agreement, the term "Control," or
any derivative thereof (including "Controlled by" or "Controlling"), when used
with respect to any specified Person, shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of such Person, whether through ownership of voting securities or
partnership or other ownership interests, or by contract; PROVIDED, HOWEVER,
that, without limiting the generality of the foregoing, (a) any Person which,
together with its Affiliates, owns, directly or indirectly, securities
representing more than 50% of the value or ordinary voting power of a
corporation or more than 50% of the partnership, general partnership, membership
or other ownership interests (based upon
A-1
value or vote) of any other Person is deemed to Control such corporation or
other Person, (b) a general partner shall always be deemed to Control any
partnership of which it is a general partner, and (c) a member-manager of a
limited liability company shall always be deemed to Control any limited
liability partnership of which it is a member- manager.
"AGREEMENT" shall mean and refer to this Agreement of Limited Partnership
and all Exhibits referred to herein and attached hereto, each of which is hereby
made a part hereof, as amended and in effect from time to time.
"AGREEMENT DATE" shall mean the date first written above as of which this
Agreement is effective.
"ALL CASH ELECTION" is defined in Section 5.11(b).
"APPRAISAL NOTICE" is defined in Section 5.11(a).
"APPRAISAL FIRST OFFER PRICE" is defined in Section 5.11(a).
"APPRAISED VALUE" is defined in Section 7.9.
"APPROVAL" (and any variation thereof) of a Partner shall mean the prior
written (or oral to the extent permitted by Section 1.12) consent or approval of
such Partner, which may be granted or withheld in its sole discretion unless
otherwise expressly provided to the contrary in this Agreement. Such Approval
shall be valid for a Partner who is not a natural person only if given by an
Authorized Representative of such Partner. Use of the term "reasonable" or
"reasonably" in connection with the term "Approval" or any variation thereof or
with the term "satisfactory" means that such Approval shall not be withheld or
delayed unreasonably. Unless either of such terms is used in connection with
the term "Approval" (or any variation thereof), such Approval may be granted or
withheld in a Partner's sole discretion. If the Approval of any Partner to any
action is required under this Agreement and such Partner shall not have given
notice of disapproval or Approval of such action to the other Partners within
ten (10) Business Days after receipt of the notice requesting that such Approval
be given (or such earlier or later date as may be established pursuant to this
Agreement for the giving or withholding of such Approval), such Partner shall be
deemed not to have given such Approval. Except as provided in Section 5.1, the
Approval of a Partner shall not be required from and after the date on which
such Partner has ceased to have Approval rights under this Agreement, regardless
of whether this Agreement otherwise requires the "Approval" of such Partner or
the "Approval" of the Partners". The terms "Approved by the Partners" and
"Approved by the General Partners" (or any variation of such terms) are defined
in Section 1.12.
"APPROVED DEVELOPMENT PLAN" means a Development Plan (or supplement
thereto) with respect to a Property or Investment that has been Approved by the
Partners as provided in Section 5.1.3.4 of this Agreement.
"APPROVED OVERHEAD BUDGET" is defined in Section 5.1.3.1.
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"APPROPRIATE SHARING RATIO" is defined in Section 3.5.4.
"AUTHORIZED REPRESENTATIVES" is defined in Section 1.12 hereof.
"BANKRUPT" shall mean, with respect to any Partner, if:
(a) such Partner, or a Person that Controls such Partner (the
"Controlling Person"), shall (i) apply for or consent to the appointment of, or
the taking of possession by, a receiver, custodian, trustee, administrator,
liquidator or the like of itself or of all or of a substantial portion of its
assets, (ii) admit in writing its inability, or be generally unable or deemed
unable under any applicable law, to pay its debts as such debts become due,
(iii) convene a meeting of creditors for the purpose of consummating an
out-of-court arrangement, or entering into a composition, extension or similar
arrangement, with creditors in respect of all or a substantial portion of its
debts, (iv) make a general assignment for the benefit of its creditors, (v)
place itself or allow itself to be placed, voluntarily or involuntarily, under
the protection of the law of any jurisdiction relating to bankruptcy,
insolvency, reorganization, winding-up, or composition or adjustment of debts,
or (vi) take any action for the purpose of effecting any of the foregoing; or
(b) a proceeding or case shall be commenced in any court of
competent jurisdiction, seeking (i) the liquidation, reorganization,
dissolution, winding-up, or composition or readjustment of debts, of such
Partner or a Controlling Person with respect thereto, (ii) the appointment of a
trustee, receiver, custodian, administrator, liquidator or the like of such
Partner or of a Controlling Person with respect thereto or of all or a
substantial portion of such Partner's or such Controlling Person's assets, or
(iii) similar relief in respect of such Partner or such Controlling Person under
any law relating to bankruptcy, insolvency, reorganization, winding-up, or
composition or adjustment of debts, without the consent of the other Partner and
such proceeding or case shall continue undismissed for a period of ninety (90)
days, or an order, judgment or decree approving or ordering any of the foregoing
shall be entered and continue unstayed and in effect for a period of sixty (60)
days, or an order for relief or other legal instrument of similar effect against
such Partner or such Controlling Person shall be entered in an involuntary case
under such law and shall continue for a period of sixty (60) days.
"BANKRUPTCY" shall mean any condition described in the definition of
"Bankrupt" which renders a Partner a Bankrupt.
"BANKRUPTCY CODE" shall mean Title 11 of the United States Code, 11 U.S.C.
Section 101 ET SEQ., as is now in effect or hereafter amended.
"BFLLP" is defined in Section 7.8.9.
"BORROWING MEMBER" is defined in Section 3.11.
A-3
"BUSINESS DAY" shall mean any day on which commercial banks are authorized
to do business and are not required by law or executive order to close in both
Los Angeles, California and New York, New York.
"BUY-OUT PRICE" is defined in Section 7.9.1.
"CAPITAL ACCOUNT" shall mean, with respect to any Partner, the book Capital
Account maintained for such Partner in accordance with the provisions of Section
3.1.
"CAPITAL CONTRIBUTION" or "CAPITAL CONTRIBUTIONS" shall mean the amount of
cash and the net fair market value (as reasonably Approved by the Partners) of
any property contributed to the capital of the Partnership by the Partners
pursuant to this Agreement. The term "Capital Contributions" with respect to a
Partner shall include (i) the contributions of such Partner made pursuant to
Sections 2.1 and 2.2 and any other Section of this Agreement pursuant to which
Capital Contributions are deemed made by the Partners (including Section 4.1.2),
and (ii) such Partner's payments that are Approved by the Partners (to the
extent such Approval is required under this Agreement) which are made to
third-party creditors of the Partnership with respect to Partnership obligations
unless and until reimbursed by the Partnership, but only to the extent
reimbursable to such Partner under this Agreement. The Capital Contribution of
the Highridge Partners attributable to their contribution of the El Segundo Land
is set forth in Section 2.2.2(b).
"CAPITAL EQUALIZATION DISTRIBUTION" is defined in Section 2.1.2.3.
"CAPITAL RECEIPTS" shall mean (i) the sum of (a) the proceeds received by
the Partnership from the sale, exchange or any other disposition of all or any
portion of any Investment (including any Partnership Interest), plus (b) all
amounts received by the Partnership from any Investment Entity on account of the
sale, exchange or other disposition of all or any portion of any Property,
Investment or other asset owned by such Investment Entity reduced by (ii) the
sum of (a) all expenditures made by the Partnership in connection with such
sale, exchange or other disposition that are required in connection with such
sale, exchange or other disposition or that are reasonably Approved by the
Partners, plus (b) loan repayments made from such proceeds as are required
pursuant to loan documentation or otherwise Approved by the Partners, plus
(c) amounts set aside as reserves therefrom that have been reasonably Approved
by the Partners.
"CERTIFICATE" shall mean the Certificate of Limited Partnership of the
Partnership, as filed with the Office of the Secretary of State of the State of
Delaware in accordance with the Act, and as in effect from time to time.
"CLOSING DATE" is defined in Section 7.9.2.
"CODE" shall mean the Internal Revenue Code of 1986, as amended and in
effect from time to time (or any corresponding provision of succeeding law).
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"CO-GENERAL PARTNER" means any General Partner appointed by the Xxxx-Xxxx
Limited Partner as provided in Section 7.9.5.
"CONTROL" or "Controlled by" or "Controlling", is defined in the definition
of "Affiliate."
"CONTROL CHANGE NOTICE" is defined in Section 7.9.5.
"CONTROLLING PERSON" is defined in the definition of the term "Bankrupt".
"DEADLOCK" is defined in Section 5.10.
"DEADLOCK NOTICE" is defined in Section 5.10.
"DEFAULTING PARTNER" shall have the meaning set forth in Section 2.2.2.
"DEVELOPMENT PLAN" is defined in Section 5.1.3.4.
"DETERMINATION DATE" is defined in Section 5.9.
"DISCRETIONARY OUTLAYS" is defined in Section 5.1.3.2.
"DISPOSITION" is defined in the definition of "Gain or Loss on
Disposition."
"DUE DATE" is defined in Section 2.2.1.
"DUE DILIGENCE MATERIALS" shall mean any documents that have been made
available to the Partners under Section 5.1.6.2 in connection with acquiring and
Approving Investments, including any Investment Entity's acquisition of a
Property, such as lease abstracts, contracts (including service contracts and
brokerage agreements), title reports, surveys, engineering and geological
studies and reports, environmental investigations and reports, cost analyses,
feasibility studies, financial projections, leases and other such materials
relating to any Investment, Property or proposed investment by the Partnership
or any Investment Entity, including the documents described on Exhibit K.
"ELECTING MEMBER(S)" is defined in Section 7.9.1.
"EL SEGUNDO LAND" is defined in Section 2.1.1(b).
"EL SEGUNDO VALUATION DATE" means the earlier to occur of (a) the sale or
other disposition of the El Segundo Land Property (as developed) for a gross
disposition price of at lest $55 million or (b) the Partnership receiving an
appraisal for the El Segundo Land Property (as then developed) from an appraiser
who has been Approved by the Partners of at least $55 million.
A-5
"EMERGENCY" shall mean an event which reasonably requires immediate action
involving the expenditure of funds or other action in order to avert or mitigate
significant damage to Persons or property in connection with the Partnership,
any Investment Entity or any of their assets if it is not possible (after a
reasonable effort) for a Partner to reach or obtain the Approval of the other
Partners whose Approval to take such action otherwise would be required.
"ENTITY" shall mean any general partnership, limited partnership, limited
liability company, corporation, joint venture, trust, business trust,
joint-stock company, cooperative, association or other firm or any governmental
or political subdivision or agency, department or instrumentality thereof.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any successor statute.
"FAMILY MEMBER" with respect to an individual shall mean such individual's
present or former spouse, brothers and sisters (whether by whole or half blood),
lineal ascendants or descendants or their respective spouses, or a trustee or
custodian for the benefit of any of them.
"FIRST OFFER NOTICE" is defined in Section 5.11.
"FMV APPRAISAL PROCEDURE" is defined in Section 5.11.
"FMV NOTICE" is defined in Section 5.10(iv).
"FORCE MAJEURE" shall mean any act of God (including weather disturbance,
earthquake, fire, mechanical failure of equipment, disease and the like), labor
strike or work stoppage or slowdown, material shortages, sabotage, war, riot,
moratorium, governmental action or inaction, or any other act of any third party
that reasonably prevents an action from being taken through no fault of the
Partner who is required to take such action or such Partner's Affiliates.
"FUNDING NOTICE" is defined in Section 2.1.2.
"FUNDING PROPORTION" shall mean the percentage set forth as such for each
Partner on Exhibit B hereto.
"GAIN" OR "LOSS" ON "DISPOSITION" shall mean (i) the gain or loss (as the
case may be) of the Partnership for federal income tax purposes (as computed for
book purposes), arising from a sale, exchange or other taxable disposition
(including casualty or condemnation) of all or a portion of any Investment
(including any Partnership Interest) and (ii) the Partnership's distributive
share of the gain or loss for federal income tax purposes arising from the sale,
exchange or other taxable disposition of all or a portion of any of the asset of
any Investment Entity. Gain or loss resulting from any disposition of Revalued
Property for which there is a difference between Gross Asset Value and adjusted
tax basis (as computed for tax as opposed
A-6
to book purposes) shall be computed by reference to the Gross Asset Value (as
reasonably Approved by the Partners) of the property disposed of (as adjusted
for book purposes from time to time).
"GAV NOTICE" is defined in Section 5.10(iii).
"GENERAL PARTNER(S)" means the Managing General Partner and any Co-General
Partner for so long as such Partner shall be a General Partner under this
Agreement.
"GROSS ASSET VALUE" shall mean, with respect to any asset, the adjusted
basis of the asset for federal income tax purposes, adjusted as provided in
Section 3.10.
"HIGHRIDGE PARTNERS" shall mean the Managing General Partner, the Highridge
Limited Partner, and any other Person to whom either of them have transferred
all or a portion of their interest in the Partnership pursuant to this
Agreement.
"HIGHRIDGE SUBORDINATED CONTRIBUTION RETURN" shall mean an amount equal to
the Mezzanine Debt Rate (expressed as a percentage) for the actual numbers of
days for which the Highridge Subordinated Contribution Return is being
determined, cumulative and compounded quarterly, multiplied by the Undistributed
Highridge Subordinated Contributions outstanding from time to time, computed by
using April 23, 1998 as the date on which Highridge Subordinated Contributions
are deemed to have been made to the Partnership and using the actual dates on
which distributions in repayment thereof are made from time to time to the
Highridge Partners.
"HIGHRIDGE SUBORDINATED CONTRIBUTIONS" is defined in Section 2.1.1(b).
"INCLUDING" or "INCLUDING" shall mean "including, without limitation."
"INCOME TAX REGULATIONS" or "REGULATIONS" shall mean the final or temporary
regulations promulgated from time to time under the Code or, if no final or
temporary regulations with respect to a tax issue then are in effect, proposed
regulations then in effect if reasonably Approved by the Partners, and
administrative and judicial interpretations thereof.
"INDEPENDENT TAX COUNSEL" shall mean a nationally recognized tax counsel
reasonably Approved by the Partners that is capable of advising the Partnership
with respect to specified tax matters.
"INITIAL DEVELOPMENT PLAN" is defined in Section 5.1.3.4.
"INVESTED CAPITAL" with respect to each Partner shall mean the aggregate of
all Capital Contributions made from time to time to the Partnership by such
Partner other than the Highridge Subordinated Contributions, reduced by the
aggregate of all distributions previously made (or deemed made) to such Partner
pursuant to Section 4.1.1(c) in repayment of the Invested Capital of such
Partner.
A-7
"INVESTMENT ENTITY" is defined in Section 1.5.1.
"INVESTMENT ENTITY AGREEMENT" shall mean, individually or collectively, the
operating agreement or limited partnership agreement pursuant to which each
Investment Entity is formed and operated, as in effect from time to time, with
such changes therein as may be Approved by the Partners.
"INVESTMENT ENTITY TAX LOAN" is defined in Section 3.11.
"INVESTMENTS" is defined in Section 1.5.2.
"INVOKING PARTNER" is defined in Section 5.10(iii).
"LIABILITIES" is defined in Section 5.5.3.
"LIQUIDATOR" is defined in Section 8.3.
"XXXX-XXXX LIMITED PARTNER" is defined in the Heading to this Agreement.
"XXXX-XXXX PARTNERS" shall mean the Xxxx-Xxxx Limited Partner, any
Co-General Partner, and any other Person to whom any of them have transferred
all or a portion of their interest in the Partnership pursuant to this
Agreement.
"XXXX-XXXX REALTY" means Xxxx-Xxxx Realty Corporation.
"XXXX-XXXX SALE RIGHT" is defined in Section 5.10(iv).
"MAJOR DECISIONS" is defined in Section 5.1.5.
"MAJOR DEFAULT NOTICE" is defined in Section 5.9.
"MAJOR DEFAULT" means, with respect to a Partner, that such Partner or any
of such Partner's Affiliates has engaged in actual fraud with respect to the
Partnership, an investment Entity, any Investment or any Property or has
intentionally misappropriated Partnership or Investment Entity Funds.
"MANAGING GENERAL PARTNER" is defined in the Heading to this Agreement.
"MANAGING GENERAL PARTNER GUARANTIES" is defined in Section 3.5.4.
"MANAGING GENERAL PARTNER SALE RIGHT" is defined in Section 5.10(iv).
"MANAGEMENT AGREEMENT" is defined in Section 5.2(b).
"MATERIAL" (and any variation thereof) is defined in Section 5.1.1.10.
A-8
"MAXIMUM TAX RATE" shall mean the highest combined effective maximum tax
rate in effect from time to time with respect to any Partner (based on the
assumption that individual rates apply to such Partner) for federal, state and
local income tax purposes, computed by taking into account the tax savings
resulting from the deductibility of state and local income taxes to the extent
permitted for federal purposes and taking into account the tax on
self-employment income (also based on the assumption that each Member is an
individual taxpayer). The Maximum Tax Rate shall be computed by the
Partnership's accountants at the Borrowing Partners' expense whenever the
Maximum Tax Rate needs to be determined under Section 3.11.
"MEZZANINE DEBT RATE" shall mean (i) fifteen percent (15%) per annum unless
and until the Partnership or an Investment Entity obtains any Third Party
Mezzanine Financing with respect to the El Segundo Land, and (ii) from and after
such obtaining of such Third Party Mezzanine Financing, the interest rate in
effect from time to time on such Third Party Mezzanine Financing.
"NET AVAILABLE CASH," with respect to any period, shall mean (i) the sum of
all cash receipts of the Partnership during such period from all sources
(including Capital Contributions, cash on hand at the beginning of such period
to the extent not held in reserves, distributions from the Investment Entities
and any funds released during such period from cash reserves previously
established), minus (ii) the sum of (a) Capital Receipts, (b) Net Mortgage
Proceeds, (c) Operating Costs, and (d) any Investment Entity Tax Loans, for such
period.
"NET MORTGAGE PROCEEDS" shall mean (i) the sum of (a) the proceeds of any
loan made to the Partnership and the proceeds from refinancing any such loan,
plus (b) any amount released from cash escrow accounts established under any
loan to the Partnership, plus (c) the proceeds received by the Partnership from
any Investment Entity on account of any loan made to such Investment Entity and
the proceeds from refinancing any such loan received from any Investment Entity,
other than Investment Entity Tax Loans, reduced by (ii) the sum of (a) any
amounts required to fund the Partnership's expenditures that are reasonably
Approved by the Partners or that are otherwise permitted to be withheld from
such amounts for such purpose under this Agreement, (b) any and all expenses
incurred by the Partnership in connection with such loan or refinancing that are
reasonably Approved by the Partners, (c) amounts used as permitted under this
Agreement to repay other indebtedness of the Partnership, plus (d) amounts
thereof retained as reserves under this Agreement for Shortfall Disbursements by
the Partnership (such reserves to be reasonably Approved by the Partners).
"95% STABILIZATION" shall mean, with respect to a Property, the date on
which completion of such Property has occurred and binding leases for at least
95% of the leaseable space in such Property have been entered into for which
either (i) rent payments have commenced or (ii) all required building permits
with respect to such lease have been obtained, to the knowledge of the Highridge
Partners (as defined in Exhibit H), the tenant improvements required to be made
under such lease that are a condition precedent to the commencement of rent
payments under such lease ("Required Tenant Improvements") can be completed
within six months, and rent payments will commence within six months if all
Required Tenant Improvements were made before the expiration of such six-month
period.
A-9
"NON-DEFAULTING MEMBER" is defined in Section 2.2.2.
"NON-DISCRETIONARY ITEMS" shall mean expenditures payable by the
Partnership or any Investment Entity for increases over the amount set forth in
the Partnership's most recent Approved Budget for the following items, but only
to the extent not reasonably anticipated at the time such Approved Budget was
submitted to the Partners for Approval under Section 0.0.0.0: taxes (including
real estate taxes, but excluding any Partner's tax liability), utilities,
bonding costs, insurance (including earthquake insurance, and insurance
described under Section 5.1.1 to the extent provided therein), debt service and
expenses or other amounts required to be paid by the Partnership or any
Investment Entity under contracts or agreements of the Partnership or any
Investment Entity that have been Approved by the Partners(or are permitted to be
entered into without such Approval).
"NONRECOURSE DEDUCTIONS" is defined in Section 3.5.6.
"NONRECOURSE LIABILITY" is defined in Section 3.5.6.
"NON-VOTING PARTNER" is defined in Section 5.1.6.1.
"OPERATING COSTS" for a period shall mean the sum of (i) all cash
expenditures of the Partnership (which expenditures shall be subject to the
Approved Budget limitations of Section 5.1.3) made during such period for
current costs and expenses (except to the extent constituting a reduction in
computing Net Mortgage Proceeds or Capital Receipts for such period), including
acquisition costs of the Investments (including the Partnership Interests), due
diligence expenditures, payments of interest and principal or other monetary
obligations due under any loan made to the Partnership; accounting, legal and
auditing fees; taxes payable by the Partnership; public or private utility
charges; sales, use, payroll taxes and withholding taxes related thereto; and
all other advertising, management, leasing, government approval, and other
operating, construction and development costs, expenses and capital expenditures
(including fees of land use consultants, engineers, architects, municipal
development fees, bond costs and the like) actually paid with respect to the
Investments or the Partnership's business generally (subject to the Approved
Budget limitations of Section 5.1.3) or reimbursed or paid to Partners
(including Overhead Payments), plus (ii) such reserves established from time to
time during such period upon the reasonable Approval of the Partners (except to
the extent constituting a reduction in computing Net Mortgage Proceeds or
Capital Receipts for such period), plus (iii) any amounts contributed by the
Partnership to any Investment Entity pursuant to the applicable Investment
Entity Agreement during such period (whether pursuant to Section 2.5 or
otherwise).
"OTHER PARTNER" is defined in Section 5.10(iii).
"OVERHEAD PAYMENTS" is defined in Section 5.1.3.1.
"PARTNER ASSIGNEE" is defined in Section 7.4.
A-10
"PARTNER GROUP" means either (a) the Highridge Partners or (b) the
Xxxx-Xxxx Partners (there are two Partner Groups).
"PARTNER NONRECOURSE DEBT" is defined in Section 3.5.6 hereof.
"PARTNER NONRECOURSE DEBT MINIMUM GAIN" is defined in Section 3.5.6 hereof.
"PARTNERS" shall mean the Managing General Partner, the Highridge Limited
Partner, the Xxxx-Xxxx Limited Partner and any Co-General Partner admitted as
such pursuant to this Agreement (each a "Partner"), in their respective
capacities as Partners, and any of their successors in their respective
capacities as Partners admitted to the Partnership as Partners hereunder, and
any other Person admitted as a Partner under this Agreement, for so long as any
such Person is a Partner under the terms of this Agreement.
"PARTNER NONRECOURSE DEDUCTIONS" is defined in Section 3.5.6 hereof.
"PARTNERSHIP" shall mean HPMC Development Partners, L.P., a Delaware
limited Partnership formed under the Act and operated pursuant to this
Agreement.
"PARTNERSHIP ACCOUNTING YEAR" shall mean and refer to the accounting year
of the Partnership ending on December 31 of each calendar year or such shorter
fiscal period during such year for which a relevant determination is being made
under this Agreement.
"PARTNERSHIP INTEREST" shall mean the interest in any Investment Entity
acquired by the Partnership, as in effect from time to time under the applicable
Investment Entity Agreement.
"PARTNERSHIP MINIMUM GAIN" is defined in Section 3.5.6 hereof.
"PERFORMANCE DEFAULT" with respect to the Managing General Partner and its
Affiliates shall be deemed to have occurred (subject to Section 5.9) with
respect to a Property or Investment if (a) the Managing General Partner shall
have failed to cause compliance with any Approved Development Plan with respect
to such Property or Investment in any Material respect for any reason other than
Force Majeure, or (b) if a Highridge Partner or an Affiliate of any Highridge
Partner has breached the provisions of any agreement entered into between such
Person and the Partnership or any Investment Entity and has failed to cure such
breach within the time required by such agreement (but this clause (b) shall
apply with respect to a Property or Investment only if such breach was not
willful and therefore does not constitute a Removal Default for which separate
remedies are provided elsewhere in this Agreement).
"PERSON" shall mean any individual or Entity.
"PREFERRED RETURN" shall mean an amount equal to ten percent (10%) per
annum, on a calendar year basis, for the actual number of days for which the
Preferred Return is being determined, cumulative and compounded quarterly,
multiplied by the Invested Capital of each of the Partners outstanding from time
to time, computed by using April 23, 1998 as the date which the Section 2.1.1
Contributions of the Partners shown on Exhibit B were made by the
A-11
Partners, the actual dates on which a Partner's Capital Contributions (other
than such Section 2.1.1 Contributions and the Highridge Subordinated
Contributions) are made to the Partnership from time to time (if any), and using
the actual dates on which distributions are made (or deemed made) to such
Partner pursuant to Section 4.1.1(c).
"PRIME RATE" shall mean the so-called "Reference Rate" announced by Bank of
America N.T.&S.A. at Los Angeles, California, from time to time.
"PROFIT" OR "LOSS" shall mean, for each Partnership Accounting Year, an
amount equal to the Partnership's net taxable income or loss (as computed for
book purposes) for such Accounting Year (determined without regard to any items
of income, gain or deduction, as computed for book purposes, taken into account
in computing the Partnership's Gain or Loss on Disposition for such Accounting
Year), determined in accordance with Code Section 703(a) (for this purpose, all
items of income, gain, loss or deduction, as computed for book purposes,
required to be stated separately pursuant to Code Section 703(a)(1) shall be
included in computing such taxable income or loss), including the Partnership's
allocated share thereof from any Investment Entity, with the following
adjustments:
Any income of the Partnership that is exempt from federal income tax and is
not otherwise taken into account in computing Profit or Loss shall be added to
such taxable income or loss (as computed for book purposes);
In the event the agreed fair market value of any Partnership asset is
adjusted pursuant to Regulations Section 1.704-l(b)(2)(iv)(f) or other pertinent
sections of such Regulations, the amount of such adjustment shall be taken into
account as Gain or Loss on Disposition of such asset for purposes of computing
Profit or Loss; and 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, amortization or other cost
recovery computed with reference to Gross Asset Value of Partnership property
reasonably Approved by the Partners (subject to Section 5.10(iii)) (if different
from its adjusted tax basis) pursuant to Regulations Section
1.704-l(b)(2)(iv)(g) for such Partnership Accounting Year; and
Notwithstanding any other provisions, any items which are specially
allocated pursuant to Sections 3.3, 3.4, 3.5, 3.6 and 3.9 shall not be taken
into account in computing Profit or Loss.
"PROPERTIES" is defined in Section 1.5.1.
"PROPERTY DEADLOCK" is defined in Section 5.11(a).
"PROPONENT GROUP" is defined in Section 5.11(a).
"PROPONENT GROUP FIRST OFFER PRICE" is defined in Section 5.11(a).
"PROPONENT GROUP INTEREST PURCHASE PRICE" is defined in Section 5.11(a).
A-12
"PURCHASE NOTICE" is defined in Section 7.9.1.
"RECONTRIBUTING MEMBER" is defined in Section 3.5.4.
"REGULATIONS" is defined in the definition of "Income Tax Regulations."
"REIT" is defined in Section 5.1.1.2.
"REIT SHARE VALUE" is defined in Section 8.3.8.
"REQUIRED ADDITIONAL CONTRIBUTIONS" is defined in Section 2.1.2.
"REMOVAL DEFAULT" means, with respect to the Managing General Partner, that
such Partner or any of such Partner's Affiliates has committed gross negligence
with respect to the Partnership, an Investment Entity, an Investment or a
Property, or has willfully breached the provisions of this Agreement, any
Investment Entity Agreement or any other agreement entered into between such
Person and the Partnership or any Investment Entity, in each case if the same is
not cured within the time required by Section 9.2 of this Agreement, such
Investment Entity Agreement, or such other agreement (as applicable).
"RESIDUAL PERCENTAGE" of a Partner as of any relevant time shall mean the
Residual Percentage set forth on Exhibit B for such Partner.
"RESPONDENT GROUP" is defined in Section 5.11(a).
"RESPONDENT GROUP INTEREST PURCHASE PRICE" is defined in Section 5.11(a).
"REVALUED PROPERTY" is defined in Section 3.5.3.2, and includes the El
Segundo Land.
"SECTION 2.2.1 CONTRIBUTION" is defined in Section 2.2.1.
"SHORTFALL" is defined in Section 2.1.2.
"SUBSEQUENT DEVELOPMENT PLAN" is defined in Section 5.1.3.4.
"SUMMIT RIDGE LAND" shall mean that certain parcel of real property that is
described on Exhibit D-2 (including improvements thereon) that is to be acquired
by purchase by the Partnership (or an Investment Entity formed by the
Partnership) from a seller who is not an Affiliate of any Partner.
"TAX MATTERS PARTNER" is defined in Section 5.4 (which references the
Code).
"TAX PAYMENT LOAN" is defined in Section 3.11.
"TAX TERMINATION" is defined in Section 7.5.1.3.
A-13
"TERMINATED PARTNER" shall mean (i) any Partner that has failed to make a
Capital Contribution when required and who has become a Defaulting Partner by
reason thereof under Section 2.2.2, (ii) any Partner that becomes Bankrupt,
(iii) any Partner which has been dissolved (and has not been reconstituted
within sixty (60) days thereafter) or, if an individual, who has died, (iv) any
Partner which has committed a Major Default or (v) any Partner who has breached
the restrictions on Transfer of its interest in the Partnership contained in
Article 7. If any Partner in a Partner Group is a Terminated Partner, all
Partners in such Partner Group shall also be deemed to be Terminated Partners,
and shall be subject to all of the remedies applicable against a Terminated
Partner under this Agreement, including the loss of its Approval rights and the
obligation to sell its interest in the Partnership as provided in Section 7.9.
"TERMINATION DATE" shall mean the date upon which a Partner became a
Terminated Partner.
"THIRD PARTY MEZZANINE FINANCING" with respect to a Property means that
portion of the Partnership's or Investment Entity's financing with respect to
such Property which, when added to the Partnership's conventional financing with
respect to such Property, will cause such Property to be 85% financed with debt.
"TRANSFER" shall mean (i) the issuance, transfer, sale, gift, grant,
conveyance, assignment, encumbrance, pledge, hypothecation or redemption,
directly or indirectly, of any equity ownership interest (whether stock, general
partnership interest, partnership interest, membership interest or otherwise) in
the Partnership or in any Person holding a direct (or indirect through tiered
Entities) interest in the Partnership, or the merger or consolidation of any
such Person into or with another Person, as the case may be; and (ii) the
execution and delivery by any Person holding a direct (or indirect through
tiered Entities) interest in the Partnership of a contract of sale, option or
other agreement providing for any of the foregoing.
"UNDISTRIBUTED HIGHRIDGE SUBORDINATED CONTRIBUTIONS" shall mean the
Highridge Subordinated Contributions less distributions previously made (or
deemed made) to the Highridge Partners under Section 4.1.1(e) and 4.1.2 (to the
extent deemed Undistributed to repay Highridge Subordinated Contributions under
Section 4.1.2).
"UNDISTRIBUTED HIGHRIDGE SUBORDINATED RETURN" means an amount equal to the
Highridge Subordinated Contribution Return accrued to the date the Undistributed
Highridge Subordinated Return is being determined, less all distributions made
(or deemed made) to the Highridge Partners pursuant to Sections 4.1.1(d) and
4.1.2 (to the extent deemed to pay Undistributed Highridge Subordinated Return
under Section 4.1.2).
"UNDISTRIBUTED PREFERRED RETURN" with respect to a Partner means an amount
equal to the Preferred Return of each Partner accrued to the date the
Undistributed Preferred Return is being determined, less all distributions made
(or deemed made) to such Partner pursuant to Sections 4.1.1(a) and (b).
"UNREIMBURSED PAYMENTS" is defined in Section 3.5.4.
A-14
EXHIBIT B
FUNDING PROPORTIONS, SECTION 2.1.1 CONTRIBUTIONS
AND RESIDUAL PERCENTAGES
Section 2.1.1 Funding Residual
Partner Contributions (Cash) Proportion Percentage
------- -------------------- ---------- ----------
Highridge GP $ 50,000 1% 1%
Highridge Limited Partner $ 950,000 19% 49%
Xxxx-Xxxx Limited Partner $19,200,000 80% 50%
----------- ---- ----
Total $20,200,000 100% 100%
=========== ==== ====
Section 2.1.1
Contributions
(Agreed Value of
El Segundo Land)
-----------------
Highridge
Invested Subordinated
Partner Capital Contributions
-------- -------- -------------
Highridge GP $ 350,000 $ 100,000
Highridge Limited Partner 6,650,000 1,900,000
---------- -----------
Totals $7,000,000 $ 2,000,000
========== ===========
Note: The Section 2.1.1 Contributions shown on this Exhibit B are deemed
contributed to the Partnership as of April 23, 1998. All additional
Capital Contributions shall be made only as provided in the
Partnership Agreement.
B-1
EXHIBIT C
INITIAL DEVELOPMENT PLAN
(INCLUDING APPROVED BUDGET AND APPROVED OVERHEAD BUDGET)
FOR THE EL SEGUNDO LAND AND
THE SUMMIT RIDGE (XXXXXXX XXXX) LAND
For purposes of this Agreement, the Partners confirm that the
Development Plan (including the Approved Budget and Approved Overhead budget)
for each of the El Segundo Land and the Summit Ridge (Xxxxxxx Xxxx) Land shall
be the document having such title that has been separately delivered and
Approved in writing by the Partners as of even date herewith.
C-1
EXHIBIT D-1
LEGAL DESCRIPTION OF THE EL SEGUNDO LAND
[BEGINS NEXT PAGE]
X-0-0
XXXXXXX X-0
LEGAL DESCRIPTION OF THE SUMMIT RIDGE (XXXXXXX XXXX) LAND
[BEGINS NEXT PAGE]
D-2
EXHIBIT E
OWNERSHIP OF PARTNERS
Members % Capital % Profits
Partner or Partners Interest Interest
------- ----------- --------- ---------
Highridge GP __________* _____% _____%
__________ _____% _____%
__________ _____% _____%
__________ _____% _____%
Highridge Limited
Partner __________* _____% _____%
__________ _____% _____%
__________ _____% _____%
__________ _____% _____%
Xxxx-Xxxx Limited General Partner: Aggregate Aggregate
Partner Xxxx-Xxxx Sub XXI, 100% 100%
Inc., a Delaware
corporation and
Limited Partner:
Xxxx-Xxxx Realty, L.P.,
a Delaware limited
partnership (both
Controlled by Xxxx-Xxxx
Realty Corporation)
-----------------
- SEE CHART ATTACHED AS EXHIBIT E-2 (BEGINS NEXT PAGE).
E-1
EXHIBIT F
[INTENTIONALLY OMITTED]
F-1
EXHIBIT G
CLAIMS AND ENCUMBRANCES
ON EL SEGUNDO LAND
(INCLUDING ENVIRONMENTAL)
None except those listed or described in the
Title Report and Survey or the Environmental
Reports (as such terms are defined in Exhibit H)
G-1
EXHIBIT H
EL SEGUNDO LAND
REPRESENTATIONS AND WARRANTIES
In order to induce the Xxxx-Xxxx Limited Partner to enter into
the Partnership Agreement to which this Exhibit H is attached, each of the
Highridge Partners hereby represents and warrants the following with respect to
the El Segundo Land as of the date of the execution and delivery of this
Agreement and the Contribution of the El Segundo Land to the Partnership under
this Agreement (the term "knowledge" as used in this Exhibit H with respect to
the Highridge Partners means the actual and specific knowledge of any of Xxxx X.
Xxxx, Xxxxxx X. Xxxxxxxxx, Xxxxxx X. Xxxxxxxxx or Xxxx Xxxxxxx):
(a) Immediately prior to their contribution of the El Segundo
Land to the Partnership pursuant to this Agreement, the Highridge Partners owned
good and marketable title to (and owned all of the ownership interests in) the
El Segundo Land, subject only to the matters shown on Exhibit G and the title
report and survey with respect to the El Segundo Land that were furnished by the
Highridge Partners to the Xxxx-Xxxx Limited Partner prior to executing this
Agreement, and any updates thereof (the "Title Report and Survey");
(b) Upon the execution and delivery of this Agreement by all of
the parties hereto, the Highridge Partners or their Affiliates will have no
remaining ownership interest in, or rights with respect to, the El Segundo Land
except for the indirect interest of the Highridge Partners therein as the owners
of interests as Partners in the Partnership;
(c) None of the Highridge Partners has assigned, pledged or
otherwise hypothecated or encumbered its ownership interests in the El Segundo
Land prior to the contribution of the El Segundo Land to the Partnership, and
none of the Highridge Partners has knowledge of any claims or encumbrances that
are pending with respect to the El Segundo Land other than those set forth on
Exhibit G, the Title Report and Survey or the Environmental Reports (defined in
paragraph (e) of this Exhibit H);
(d) The adjusted tax basis of the El Segundo Land of each of the
Highridge Partners at the date of their contribution of the El Segundo Land to
the Partnership is as set forth in the schedule that has been (or shall be,
within ten Business Days after the execution of this Agreement) provided to the
Xxxx-Xxxx Partners by the Highridge Partners, and such amount is the correct
amount to be credited to the Highridge Partners' tax capital accounts referred
to in Section 3.5.3.2 with respect to their contribution of the El Segundo Land;
(e) To the knowledge of the Highridge Partners, there are no
actions, suits, labor disputes, litigation or proceedings currently pending or
threatened against or related to all or any part of the El Segundo Land, the
environmental condition thereof, or the operation thereof, except as set forth
on Exhibit G, the Title Report and Survey or the Phase I environmental survey
and materials prepared in connection therewith that have been furnished
H-1
to the Xxxx-Xxxx Limited Partner by the Highridge Partners prior to the
execution of this Agreement that are listed on Exhibit K (collectively, the
"Environmental Reports");
(f) The Highridge Partners have provided the Xxxx-Xxxx Limited
Partner with the documentation and materials concerning the El Segundo Land that
are set forth on Exhibit K, and such documentation and materials are true copies
of such documentation and materials;
(g) To the knowledge of the Highridge Partners, (i) there are no
notices, suits, investigations or judgments relating to any violations
(including, without limitation, Environmental Laws, as defined in paragraph (k)
of this Exhibit H, of any laws, ordinances or regulations affecting the El
Segundo Land, (ii) no agency, board, bureau, commission, department, office or
body of any municipal, county, state or federal governmental unit, or any
subdivision thereof, having, asserting or acquiring jurisdiction over all or any
part of the El Segundo Land or the management, operation, use or improvement
thereof (collectively, the "GOVERNMENTAL AUTHORITIES") is contemplating the
issuance thereof, and (iii) there are no outstanding orders, judgments,
injunctions, decrees, directives or writ of any Governmental Authorities against
or involving the El Segundo Land;
(h) To the knowledge of the Highridge Partners, there are no
recorded leases (except as disclosed on the Title Report and Survey) or
unrecorded leases of any portion of the El Segundo Land;
(i) To the knowledge of the Highridge Partners, the Investment
Entity that will own the El Segundo Land (and/or the Partnership) has, or will
be able to obtain, all permits, licenses and approvals of all Governmental
Authorities (as defined in paragraph (g) of this Exhibit H) as are necessary to
develop the El Segundo Land with an office building as contemplated by the
Approved Development Plan with respect to the El Segundo Land that is described
in Exhibit C;
(j) Except as disclosed on Exhibit G or in the Environmental
Reports, and to the knowledge of the Highridge Partners:
(i) There are no Contaminants (as defined in paragraph (k)
of this Exhibit H) on, under, at, emanating from or affecting the El Segundo
Land, except those in compliance with all applicable Environmental Laws (as
defined in paragraph (k) of this Exhibit H);
(ii) Neither any of the Highridge Partners or their
Affiliates nor any current occupant, nor any prior owner or occupant, of the El
Segundo Land has received any Notice (as defined in paragraph (k) of this
Exhibit H) or advice from any Governmental Authority (as defined in paragraph
(g) of this Exhibit H) or any other third party with respect to Contaminants on,
under, at, emanating from or affecting the El Segundo Land, and no Contaminants
have been Discharged (as defined in this Exhibit H) which would allow a
Governmental Authority to demand that a cleanup be undertaken;
H-3
(iii) No portion of the El Segundo Land has ever been
used by any of the Highridge Partners or their Affiliates or any former owner or
current or former occupant to generate, manufacture, refine, produce, treat,
store, handle, dispose of, transfer or process Contaminants, whether or not any
of those parties has received Notice or advice from any Governmental Authority
or any other third party with respect thereto;
(iv) None of the Highridge Partners or their Affiliates has
transported any Contaminants, and no current or former occupant or former owner
has transported any Contaminants, from the El Segundo Land to another location
which was not done in compliance with all applicable Environmental Laws;
(v) No Section 104(e) informational request has been
received by any of the Highridge Partners or their Affiliates that has been
issued pursuant to CERCLA (as defined in this Exhibit H);
(vi) There is no asbestos or asbestos containing material in
any friable state or otherwise in violation of Environmental Laws on the El
Segundo Land;
(vii) There are no transformers and capacitators
containing polychlorinated biphenyls ("PCBS"), or any "PCB Items," as defined in
40 C.F.R. Section 761.3, located on or affecting the El Segundo Land (or if
present, they are present in compliance with all Environmental Laws);
(viii) There are no above ground storage tanks or
Underground Storage Tanks (as defined in this Exhibit H) at the El Segundo Land,
regardless of whether such tanks are regulated tanks or not;
(ix) All pre-existing above ground storage tanks and
Underground Storage Tanks at the El Segundo Land have been removed and their
contents disposed of in accordance with and pursuant to Environmental Laws;
(x) The El Segundo Land has not been used as a transfer
station, incinerator, resource or recovery facility, landfill or other similar
facility, for receiving or treating, storing or disposing of Contaminants,
garbage and refuse, and other discarded materials resulting from, without
limitation, industrial, commercial, agricultural, domestic or community
activities, including, without limitation, sanitary, hazardous, medical, special
or other waste or as a sanitary landfill facility as defined in 42 U.S.C.
Section 6903(26);
(xi) The Highridge Partners and each occupant of the El
Segundo Land have all environmental certificates, licenses and permits
("PERMITS") required to operate the El Segundo Land and there is no violation of
any statute, ordinance, rule, regulation, order, code, directive or requirement,
including, without limitation, Environmental Laws, with respect to any Permit,
nor any pending application for any Permit;
(xii) The El Segundo Land is not subject to any
statutory land use regulation, including, without limitation, wetlands
regulations, administered by the United
H-3
States of America, Army Corps of Engineers, the U.S. Environmental Protection
Agency or any other Governmental Authority;
(xiii) Except as provided in the Title Report and Survey
or in the Environmental Reports, there are no federal or state liens as referred
to under CERCLA or Cal. Water Code Section 13305, Cal. Health & Safety Code
Section 25365.6, or any other applicable Environmental Laws that have attached
to the El Segundo Land;
(xiv) The El Segundo Land is in compliance with the
warning requirements and discharge prohibitions of the California Safe Drinking
Water and Toxic Enforcement Act of 1986 ("Proposition 65"), Cal. Health & Safety
Code Section 25249.5 ET SEQ.;
(xv) None of the Highridge Partners or their Affiliates has
engaged in or has permitted any occupant to engage in any activity on the El
Segundo Land in violation of Environmental Laws; and
(xvi) The El Segundo Land is in material compliance with
Environmental Laws; and
(k) The following terms shall have the following meanings when
used in this Exhibit H:
(i) "Contaminants" shall include, without limitation, any
regulated substance, toxic substance, hazardous substance, hazardous waste,
pollution, pollutant or contaminant, as defined or referred to in the California
Hazardous Substance Account Act (Health & Safety Code Section 25300 et seq.);
Chapter 6.5 of Division 20 of the Health and Safety Code (Section 25100 et
seq.), entitled "Hazardous Waste Control," the Oil Spill Prevention and Response
Act (Government Code Section 8574.1 et seq. and Public Resources Code
Sections 13000 et seq.); the Xxxxxx-Cologne Water Quality Control Act (Water
Code Sections 8750 et seq.); the California Clean Air Act (Health & Safety Code
Sections 39000 et seq.); Chapter 6.95 of Division 20 of the Health and Safety
Code (Sections 25500 et seq.), entitled "Hazardous Materials Release Response
Plans and Inventory," Proposition 65, as defined above, the "Tanks Laws" as
defined below; the Resource Conservation and Recovery Act, AS AMENDED, 42 U.S.C.
Section 6901 ET SEQ.; the Comprehensive Environmental Response, Compensation and
Liability Act, AS AMENDED, 42 U.S.C. Section 9601 ET SEQ. ("CERCLA"); the Water
Pollution and Control Act, 33 U.S.C. Section 1251 ET SEQ.; together with any
amendments thereto, regulations promulgated thereunder and all substitutions
thereof, as well as words of similar purport or meaning referred to in any other
applicable federal, state, county or municipal environmental statute, ordinance,
code, rule or regulation, including, without limitation, lead-based paint,
radon, asbestos, polychlorinated biphenyls, urea formaldehyde and petroleum
products and petroleum-based derivatives. Where a statute, ordinance, code,
rule or regulation defines any of these terms more broadly than another, the
broader definition shall apply.
(ii) "Discharge" shall mean the releasing, spilling,
leaking, leaching, disposing, pumping, pouring, emitting, emptying, treating or
dumping of Contaminants at,
H-4
into, onto or migrating from or onto the El Segundo Land, regardless of whether
the result of an intentional or unintentional action or omission.
(iii) "Environmental Documents" shall mean all
environmental documentation in the possession or under the control of Seller
concerning the El Segundo Land, or its environs, including without limitation,
all sampling plans, cleanup plans, preliminary assessment plans and reports,
site investigation plans and reports, remedial investigation plans and reports,
remedial action plans and reports, or the equivalent, sampling results, sampling
result reports, data, diagrams, charts, maps, analysis, conclusions, quality
assurance/quality control documentation, correspondence to or from any
Governmental Authority, submissions to any Governmental Authority and
directives, orders, approvals and disapprovals issued by any Governmental
Authority.
(iv) "Environmental Laws" shall mean each and every
applicable federal, state, county or municipal statute, ordinance, rule,
regulation, order, code, directive or requirement, together with all successor
statutes, ordinances, rules, regulations, orders, codes, directives or
requirements, of any Governmental Authority in any way related to Contaminants.
(v) "Governmental Authority" is defined in paragraph (g) of
this Exhibit H.
(vi) "Notice" shall mean, in addition to its ordinary
meaning, any written communication of any nature, whether in the form of
correspondence, memoranda, order, directive or otherwise.
(vii) "Tank Laws" shall mean Cal. Health & Safety Code
Section 25280 ET SEQ., the federal underground storage tank law (Subtitle I) of
the Resource Conservation and Recovery Act, AS AMENDED, 42 U.S.C. Section 6901
ET SEQ., and any other applicable state, county or municipal statute, ordinance,
code, rule or regulation applicable to underground or above ground tanks,
together with any amendments thereto, regulations promulgated thereunder, and
all substitutions thereof, and any successor legislation and regulations.
(viii) "Underground Storage Tank" shall mean each and
every "underground storage tank," whether or not subject to the Tank Laws, as
well as the "monitoring system," the "leak detection system," the "discharge
detection system" and the "tank system" associated with the "underground storage
tank," as those terms are defined by the Tank Laws.
H-5
EXHIBIT I
[INTENTIONALLY OMITTED]
I-1
EXHIBIT J
PROCEDURES FOR SUPERVISING
EMPLOYEE AND AFFILIATE COMPLIANCE
THE HIGHRIDGE PARTNERS SHALL BE RESPONSIBLE FOR THE FOLLOWING IN CONNECTION
WITH THE WORK TO BE PERFORMED FOR THE PARTNERSHIP AND THE INVESTMENT
ENTITIES BY AFFILIATES OF THE HIGHRIDGE PARTNERS AND THEIR EMPLOYEES:
1. XXXX X. XXXX ("LONG"), XXXXXX X. XXXXXXXXX ("ESR") AND/OR XXXXXX X.
XXXXXXXXX ("SAB"), OR AN OFFICER OF HIGHRIDGE PARTNERS APPOINTED BY THEM SHALL,
ON A MONTHLY BASIS, REVIEW THE BUDGETS, CASH FLOW SUMMARIES, LEASING SUMMARIES
(OR STATUS REPORTS) AND CONSTRUCTION OR DEVELOPMENT STATUS REPORTS AND GENERALLY
CONDUCT MONTHLY (OR MORE FREQUENTLY AS REQUIRED) MEETINGS WITH ALL HIGHRIDGE
PARTNERS' AND THEIR AFFILIATES' SUPERVISORY EMPLOYEES (XXXX XXXXXXX AND XXX
XXXXX UNLESS AND UNTIL CHANGED BY THE HIGHRIDGE PARTNERS UPON NOTICE TO THE
XXXX-XXXX LIMITED PARTNER) WORKING ON THE PROPERTIES TO ASCERTAIN THE STATUS OF
THE PROPERTIES AND LONG, ESR AND/OR SAB SHALL PROVIDE DIRECTION AND GUIDANCE TO
SUCH EMPLOYEES AS REQUIRED FROM TIME TO TIME IN CONNECTION WITH THE PROPERTIES
AND INVESTMENTS.
2. LONG, ESR AND/OR SAB SHALL CAUSE TO BE FURNISHED TO EACH SUCH
SUPERVISORY EMPLOYEE AND AFFILIATE A COPY OF EACH APPROVED DEVELOPMENT PLAN AND
APPROVED BUDGET AND A LIST OF THE ACTIONS THAT REQUIRE THE CONSENT OF THE
XXXX-XXXX PARTNERS UNDER THIS AGREEMENT (INCLUDING ANY APPROVED LEASING
PARAMETERS) AND PERIODICALLY PROVIDE EACH SUCH SUPERVISORY EMPLOYEE AND
AFFILIATE WITH A LIST OF THE CHANGES IN THE APPROVED DEVELOPMENT PLAN AND/OR
APPROVED BUDGETS THAT HAVE BEEN APPROVED BY THE PARTNERS FROM TIME TO TIME, AND,
UPON ANY OF LONG, ESR AND/OR SAB HAVING ACTUAL KNOWLEDGE OF ANY ACT OF ANY
EMPLOYEE OF THE HIGHRIDGE PARTNERS OR THEIR AFFILIATES, OR ANY ACT OF AN
AFFILIATE OF THE HIGHRIDGE PARTNERS THAT WOULD BE A BREACH OF THIS AGREEMENT
(INCLUDING A MAJOR DEFAULT) IF THE ACTION WERE TAKEN BY A HIGHRIDGE PARTNER, OR
ACTUAL KNOWLEDGE OF ANY MATERIAL DEVIATION FROM ANY APPROVED DEVELOPMENT PLAN,
APPROVED BUDGET OR CONTRACT PREVIOUSLY APPROVED BY THE PARTNERS OR BY THE
XXXX-XXXX LIMITED PARTNER, THE HIGHRIDGE PARTNERS SHALL GIVE PROMPT NOTICE
THEREOF TO THE XXXX-XXXX LIMITED PARTNER.
3. IF LONG, ESR OR SAB SUSPECTS THAT AN EMPLOYEE OF THE HIGHRIDGE PARTNERS
OR THEIR AFFILIATES, OR THAT AN AFFILIATE OF HIGHRIDGE PARTNERS, HAS COMMITTED
FRAUD OR MISAPPROPRIATION OF FUNDS, THE HIGHRIDGE PARTNERS SHALL NOTIFY THE
XXXX-CALI LIMITED PARTNER PROMPTLY, AND THE HIGHRIDGE GP AND THE PARTNERS SHALL
REASONABLY APPROVE THE COURSE OF ACTION TO BE TAKEN IN RESPONSE THERETO.
4. COPIES OF WRITTEN SUMMARIES OR STATUS OR PERFORMANCE REPORTS, ANY OTHER
INFORMATION REASONABLY REQUESTED BY THE XXXX-XXXX LIMITED PARTNER, AND NOTICE OF
ANY MATERIAL DEVIATION FROM AN APPROVED DEVELOPMENT PLAN, APPROVED BUDGET OR
CONTRACT APPROVED BY THE PARTNERS OR BY THE XXXX-XXXX LIMITED PARTNER THAT IS
RECEIVED FROM EMPLOYEES OF THE HIGHRIDGE PARTNERS OR THEIR AFFILIATES SHALL BE
FURNISHED BY THE HIGHRIDGE PARTNERS TO THE XXXX-XXXX LIMITED PARTNER PROMPTLY
AFTER BEING SUBMITTED TO ANY OF LONG, ESR AND/OR SAB.
J-1
EXHIBIT K
DUE DILIGENCE MATERIALS
PROVIDED BY THE HIGHRIDGE PARTNERS TO
THE XXXX-XXXX LIMITED PARTNER
CONCERNING THE EL SEGUNDO LAND
[BEGINS NEXT PAGE]
K-1
EXHIBIT L
OPERATING APPROVAL STANDARDS
[BEGINS NEXT PAGE]
L-1
EXHIBIT M
HIGHRIDGE REIMBURSEMENT SCHEDULE FOR
THE EL SEGUNDO LAND AND SUMMIT RIDGE (XXXXXXX XXXX) LAND
[BEGINS NEXT PAGE]
M-1
TABLE OF CONTENTS
ARTICLE 1 GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . 2
1.1 Formation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.2 Name of Partnership. . . . . . . . . . . . . . . . . . . . . . . . 2
1.3 Certificate of Limited Partnership . . . . . . . . . . . . . . . . 2
1.4 Principal Office, Resident Agent and Registered Office . . . . . . 2
1.5 Purposes of Partnership. . . . . . . . . . . . . . . . . . . . . . 3
1.6 Funding Proportions; Residual Percentages. . . . . . . . . . . . . 3
1.7 Other Qualifications . . . . . . . . . . . . . . . . . . . . . . . 4
1.8 Term of Partnership. . . . . . . . . . . . . . . . . . . . . . . . 4
1.9 Title to Partnership Property. . . . . . . . . . . . . . . . . . . 4
1.10 Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.11 Authorized Acts. . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.12 Authorized Representatives . . . . . . . . . . . . . . . . . . . . 4
ARTICLE 2 CAPITAL CONTRIBUTIONS AND ADDITIONAL CONTRIBUTIONS . . . . . . . . 5
2.1 Capital Contributions. . . . . . . . . . . . . . . . . . . . . . . 5
2.2 Third-Party Loans and Additional Capital Contributions and Capital
Calls. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2.3 Use of Capital Contributions; Certain Expenses . . . . . . . . . . 10
2.4 Partner Loans. . . . . . . . . . . . . . . . . . . . . . . . . . . 11
2.5 Contributions to Investment Entities . . . . . . . . . . . . . . . 11
ARTICLE 3 INCOME TAX ALLOCATIONS . . . . . . . . . . . . . . . . . . . . . . 12
3.1 Establishment and Maintenance of Capital Accounts;
Partnership Status . . . . . . . . . . . . . . . . . . . . . . . . 12
3.2 Profit and Loss Allocations. . . . . . . . . . . . . . . . . . . . 12
3.3 Allocations of Gain or Loss on Disposition . . . . . . . . . . . . 13
3.4 Minimum Gain Chargeback and Qualified Income Offset. . . . . . . . 15
3.5 Other Tax Allocation Provisions. . . . . . . . . . . . . . . . . . 15
3.6 Intent of Allocations. . . . . . . . . . . . . . . . . . . . . . . 19
3.7 Basis Elections. . . . . . . . . . . . . . . . . . . . . . . . . . 19
3.8 General Allocation Rules . . . . . . . . . . . . . . . . . . . . . 20
3.9 Sharing of Partnership Nonrecourse Debt and Nonrecourse Deductions 20
3.10 Adjustment of Gross Asset Value. . . . . . . . . . . . . . . . . . 20
3.11 Tax Payment Loans. . . . . . . . . . . . . . . . . . . . . . . . . 21
3.12 Approvals Relating to Tax Issues.. . . . . . . . . . . . . . . . . 23
ARTICLE 4 LOAN REPAYMENTS AND DISTRIBUTIONS. . . . . . . . . . . . . . . . . 23
4.1 Net Available Cash, Net Mortgage Proceeds and Capital Receipts
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
4.2 Proceeds and Distributions in Liquidation. . . . . . . . . . . . . 24
4.3 General Distribution Rules . . . . . . . . . . . . . . . . . . . . 25
4.4 Source of Distributions. . . . . . . . . . . . . . . . . . . . . . 26
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ARTICLE 5 MANAGEMENT; DUTIES AND POWERS OF THE MANAGING GENERAL PARTNER;
RIGHTS AND DUTIES OF MANAGING GENERAL PARTNER. . . . . . . . . . . 26
5.1 Management of Business; Officers; Partner Obligations; Reimbursements;
Major Decisions; Retained Approvals. . . . . . . . . . . . . . . . 26
5.2 Affiliate Transactions; Exclusivity; Xxxx-Xxxx Property Management
Option.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
5.3 Reporting Requirements; Financials; Meetings . . . . . . . . . . . 41
5.4 Tax Matters Partner; Tax Returns . . . . . . . . . . . . . . . . . 43
5.5 Indemnification and Liability of the Partners. . . . . . . . . . . 44
5.6 Control Change . . . . . . . . . . . . . . . . . . . . . . . . . . 46
5.7 Limitation of Liability. . . . . . . . . . . . . . . . . . . . . . 46
5.8 No Priorities. . . . . . . . . . . . . . . . . . . . . . . . . . . 46
5.9 Determination Date for Indemnity Payments, Removal Defaults,
Performance Defaults and Major Defaults; Arbitration . . . . . . . 46
5.10 Deadlock/Partner Sale Rights . . . . . . . . . . . . . . . . . . . 48
5.11 Property Deadlock.. . . . . . . . . . . . . . . . . . . . . . 52
ARTICLE 6 BOOKS, RECORDS AND BANK ACCOUNTS . . . . . . . . . . . . . . . . . 55
6.1 Books and Records. . . . . . . . . . . . . . . . . . . . . . . . . 55
6.2 Bank Accounts. . . . . . . . . . . . . . . . . . . . . . . . . . . 56
ARTICLE 7 TRANSFERS OF PARTNERSHIP INTERESTS . . . . . . . . . . . . . . . . 56
7.1 Restrictions on Transfer . . . . . . . . . . . . . . . . . . . . . 56
7.2 No Tag-Along Rights. . . . . . . . . . . . . . . . . . . . . . . . 57
7.3 Bankruptcy or Dissolution of Partners. . . . . . . . . . . . . . . 57
7.4 Substitution of Partner. . . . . . . . . . . . . . . . . . . . . . 57
7.5 Additional Transfer Restrictions . . . . . . . . . . . . . . . . . 58
7.6 Transfer Indemnification and Contribution Provisions . . . . . . . 59
7.7 Basis for Restrictions and Remedies. . . . . . . . . . . . . . . . 60
7.8 Representations, Warranties and Covenants. . . . . . . . . . . . . 60
7.9 Terminated Partner; Removal Defaults; Performance Defaults; Purchase
Rights; Control Change Notices . . . . . . . . . . . . . . . . . . 63
ARTICLE 8 TERM, DISSOLUTION AND TERMINATION. . . . . . . . . . . . . . . . . 67
8.1 Events of Dissolution. . . . . . . . . . . . . . . . . . . . . . . 67
8.2 Limitation on Dissolution. . . . . . . . . . . . . . . . . . . . . 67
8.3 Liquidation and Winding Up . . . . . . . . . . . . . . . . . . . . 67
8.4 Reconstitution After Bankruptcy or Dissolution of a General Partner 70
8.5 Distribution Upon Dissolution and Capital Account Adjustments. . . 71
8.6 Compliance with Timing Requirements of Treasury Regulations. . . . 71
ARTICLE 9 MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . . . . . . 71
9.1 Other Interests. . . . . . . . . . . . . . . . . . . . . . . . . . 71
9.2 Damages; Certain Cure Rights; Offset . . . . . . . . . . . . . . . 72
9.3 No Agency. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
9.4 Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . . . 73
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9.5 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
9.6 Pronouns and Plurals . . . . . . . . . . . . . . . . . . . . . . . 74
9.7 Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
9.8 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
9.9 Titles and Captions. . . . . . . . . . . . . . . . . . . . . . . . 75
9.10 Agreement in Counterparts. . . . . . . . . . . . . . . . . . . . . 75
9.11 Binding Agreement. . . . . . . . . . . . . . . . . . . . . . . . . 75
9.12 Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . 75
9.13 Waiver of Partition. . . . . . . . . . . . . . . . . . . . . . . . 75
9.14 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . 76
9.15 Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
9.16 No Drafting Presumption. . . . . . . . . . . . . . . . . . . . . . 76
9.17 No Third-Party Beneficiaries . . . . . . . . . . . . . . . . . . . 76
EXHIBIT A DEFINED TERMS . . . . . . . . . . . . . . . . . . . . . . . . A-1
EXHIBIT B FUNDING PROPORTIONS, SECTION 2.1.1 CONTRIBUTIONS AND RESIDUAL
PERCENTAGES . . . . . . . . . . . . . . . . . . . . . . . . . B-1
EXHIBIT C INITIAL DEVELOPMENT PLAN. . . . . . . . . . . . . . . . . . . C-1
EXHIBIT D-1 LEGAL DESCRIPTION OF THE EL SEGUNDO LAND. . . . . . . . . . X-0-0
XXXXXXX X-0 LEGAL DESCRIPTION OF THE SUMMIT RIDGE (XXXXXXX XXXX) LAND . . D-2
EXHIBIT E OWNERSHIP OF PARTNERS . . . . . . . . . . . . . . . . . . . . E-1
EXHIBIT F [Intentionally Omitted] . . . . . . . . . . . . . . . . . . . F-1
EXHIBIT G CLAIMS AND ENCUMBRANCES ON EL SEGUNDO LAND
(including environmental) . . . . . . . . . . . . . . . . . . X-0
XXXXXXX X XX XXXXXXX XXXX REPRESENTATIONS AND WARRANTIES. . . . . . . . H-1
EXHIBIT I [INTENTIONALLY OMITTED] . . . . . . . . . . . . . . . . . . . I-1
EXHIBIT J PROCEDURES FOR SUPERVISING EMPLOYEE
AND AFFILIATE COMPLIANCE . . . . . . . . . . . . . . . . . . J-1
EXHIBIT K DUE DILIGENCE MATERIALS PROVIDED BY THE HIGHRIDGE PARTNERS TO
THE XXXX-XXXX LIMITED PARTNER CONCERNING THE EL SEGUNDO LAND. K-1
EXHIBIT L OPERATING APPROVAL STANDARDS. . . . . . . . . . . . . . . . . L-1
EXHIBIT M HIGHRIDGE REIMBURSEMENT SCHEDULE FOR THE EL SEGUNDO LAND AND
SUMMIT RIDGE (XXXXXXX XXXX) LAND. . . . . . . . . . . . . . . M-1
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