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Exhibit 10.8
JOINT VENTURE AGREEMENT
OF
XXXXXX FAMILY HOMES AT MORIKAMI PARK
DATED: AS OF OCTOBER 2, 1996
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TABLE OF CONTENTS
Page
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ARTICLE I
INCORPORATION BY REFERENCE AND DEFINITIONS......................................1
1.1 Incorporation by Reference....................................1
1.2 Certain Definitions...........................................1
ARTICLE II
FORMATION, NAME, PRINCIPAL OFFICE AND PURPOSE...................................7
2.1 Formation.....................................................7
2.2 Name..........................................................7
2.3 Principal Office and Place of Business........................8
2.4 Purpose and Scope of the Venture..............................8
2.5 Term..........................................................8
2.6 Title.........................................................8
2.7 Designated Person.............................................8
ARTICLE III
CAPITAL CONTRIBUTION; FINANCING.................................................9
3.1 Initial Capital Contributions.................................9
3.3 Third Party Financing........................................10
3.4 Other Matters Relating to Capital............................10
ARTICLE IV
MANAGEMENT AND OPERATION OF THE VENTURE........................................11
4.1 Major Decisions..............................................11
4.2 Operational Responsibilities.................................12
4.3 No Venturer Fees.............................................13
4.4 Liability and Indemnification................................13
4.5 Competition..................................................14
ARTICLE V
ALLOCATIONS AND DISTRIBUTIONS..................................................14
5.1 Allocations from Operations and from Capital Transactions....14
5.2 Separate Allocations.........................................15
5.3 Distribution of Available Cash...............................16
(i)
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5.4 Distribution Following Terminating Capital Transaction.......17
5.5 Distribution in Cash Only....................................17
ARTICLE VI
FISCAL MATTERS.................................................................17
6.1 Accounting Year..............................................17
6.2 Books and Records............................................17
6.3 Reports and Statements.......................................17
6.4 Tax Returns..................................................18
6.5 Tax Status...................................................18
6.6 Tax Elections................................................18
6.7 Bank Accounts................................................18
ARTICLE VII
TRANSFER OF VENTURE INTEREST...................................................18
7.1 General Prohibition..........................................18
7.2 Rights of Assignee...........................................19
7.3 Admission of Venturers.......................................19
7.4 Oriole's Put Right...........................................20
7.5 Venture Redemption Right.....................................20
ARTICLE VIII
DISSOLUTION; TERMINATION.......................................................21
8.1 Dissolution..................................................21
8.2 Wind-Up......................................................22
ARTICLE IX
GENERAL PROVISIONS.............................................................23
9.1 Relationship.................................................23
9.2 Notices......................................................23
9.3 Entire Agreement.............................................23
9.4 Agency.......................................................24
9.5 Binding Effect; No Assignment................................24
9.6 Amendment....................................................24
9.7 No Waiver....................................................24
9.8 Gender and Use of Singular and Plural........................24
9.9 Counterparts.................................................24
9.10 Headings.....................................................24
9.11 Governing Law................................................24
(ii)
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9.12 Further Assurances...........................................24
9.13 Provisions Severable.........................................24
9.14 Litigation...................................................25
9.15 Remedies.....................................................25
9.16 No Foreign Person Withholding................................25
9.17 No Recordation...............................................25
(iii)
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JOINT VENTURE AGREEMENT
OF
XXXXXX FAMILY HOMES AT MORIKAMI PARK
THIS JOINT VENTURE AGREEMENT ("Agreement") is made and entered into as
of the 2nd day of October, 1996, by and between Oriole Joint Venture, Limited, a
Florida limited partnership ("Oriole"), and Xxxxxx Family Homes, Inc., a Florida
corporation ("Xxxxxx"). Oriole and Xxxxxx are sometimes hereinafter referred to
individually as "Venturer" and collectively as "Venturers."
WITNESSETH:
WHEREAS, Xxxxxx has acquired rights to acquire certain real property
located in Palm Beach County, Florida as more fully described in Exhibit A to
this Agreement (the "Property"), but requires additional equity capital to
purchase such real properties;
WHEREAS, the Venturers desire to participate together in a joint
venture ("Venture") formed under the general partnership law of the State of
Florida for the acquisition, development, operation and disposition of the
Property; and
WHEREAS, the Venturers desire by this Agreement to establish the
Venture and to set forth all the terms, provisions, conditions and covenants by
which the Venture will be governed.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and conditions contained herein, the parties hereby agree as follows:
ARTICLE I
INCORPORATION BY REFERENCE AND DEFINITIONS
1.1 INCORPORATION BY REFERENCE. The foregoing recitals are hereby
acknowledged to be true and are incorporated herein by reference, and all
Exhibits annexed hereto and referred to herein are incorporated herein by
reference.
1.2 CERTAIN DEFINITIONS. As used in this Agreement, the following terms
shall have the meanings hereinafter set forth, except as otherwise provided
herein:
(a) ADJUSTED NET INCOME AND ADJUSTED NET LOSS. "Adjusted Net
Income" or "Adjusted Net Loss" means the net income or loss of the Venture
resulting from Venture operations during any stated period, as calculated by the
Venture Accountants for federal income tax purposes; provided that gain or loss
resulting from any disposition of property
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with respect to which gain or loss is recognized for federal income tax purposes
shall be computed by reference to the Gross Asset Value of the property disposed
of, notwithstanding that the adjusted tax basis of such property differs from
its Gross Asset Value.
(b) AFFILIATE. Any of the following: (i) any person or entity
directly or indirectly controlling, controlled by or under common control with a
Venturer; (ii) a person or entity owning or controlling ten percent (10%) or
more of the outstanding voting equity of a Venturer; (iii) any officer, director
or partner of a Venturer or an employee acting in a similar capacity; and (iv)
if such other person is an officer, director, partner or similar employee of a
Venturer, any entity for which such person acts in any such capacity.
(c) AGREEMENT. This Joint Venture Agreement of Xxxxxx Family
Homes at Morikami Park, a Florida general partnership, as originally executed
and as amended from time to time, as the context requires.
(d) APPROVED MORTGAGE. The loan from Xxxxxxx Bank, N.A. to
the Venture more fully described in Section 3.3 hereof, as same may be modified,
from time to time, as permitted herein.
(e) AVAILABLE CASH. Cash of the Venture, excluding cash
proceeds from a Terminating Capital Transaction, if any, not needed to satisfy
current liabilities, upcoming capital expenditures or as a reasonable reserve
for either and thus available for distribution to the Venturers, which may
include, but shall not be limited to, cash proceeds generated by Venture
operations and Interim Capital Transactions, including financing and refinancing
(which term, "refinancing," is defined, for all purposes under this Agreement,
to include financing which has been recast, modified, extended or increased).
(f) BANKRUPTCY. As used in this Agreement, the term
"Bankruptcy," with respect to the Venture or a Venturer, shall refer to: (i) the
appointment of a receiver, conservator, rehabilitator or similar officer for the
Venture, a Venturer or any person or entity that has majority voting rights with
respect to any Venturer, unless the appointment of such officer shall be vacated
and such officer discharged within one hundred twenty (120) days of the
appointment; (ii) the taking of possession of, or the assumption of control
over, all or any substantial part of the property of the Venture, any Venturer
or any person or entity that has majority voting rights with respect to any
Venturer by any receiver, conservator, rehabilitator or similar officer or by
the United States Government or any agency thereof, unless such property is
relinquished within one hundred twenty (120) days of the taking; (iii) the
filing of a petition in bankruptcy or the commencement of any proceeding under
any present or future federal or state law relating to bankruptcy, insolvency,
debt relief or reorganization of debtors by or against the Venture, any Venturer
or any person or entity that has majority voting rights with respect to any
Venturer provided, if filed against the Venture, any Venturer or the person or
entity that has majority voting
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rights with respect to any Venturer, such petition or proceeding is not
dismissed within sixty (60) days of the filing of the petition or the
commencement of the proceeding; (iv) the making of an assignment for the benefit
of creditors or a private composition, arrangement or adjustment with the
creditors of the Venture, any Venturer or any person or entity that has majority
voting rights with respect to any Venturer; or (v) the commencement of any
proceedings supplementary to the execution of any judgment against the Venture,
any Venturer or any person or entity that has majority voting rights with
respect to any Venturer, unless such proceeding is dismissed within sixty (60)
days of the date it was commenced.
(g) BUSINESS PLAN. The business plan to be pursued by the
Venture, as same is described in Section 2.4(b) hereof, and as same may, from
time to time be modified, as provided herein.
(h) CAPITAL ACCOUNTS. Throughout the full term of the
Venture, each Venturer shall have a separate Capital Account determined and
maintained in accordance with the provisions of Treasury Regulations Section
1.704-1(b)(2)(iv), promulgated under Code Section 704(b).
(i) CAPITAL CONTRIBUTION. The total amount of money or the
agreed fair market value of property other than money contributed by each
Venturer to the capital of the Venture, as reflected in the books of the
Venture.
(j) CAPITAL TRANSACTION. An Interim Capital Transaction or a
Terminating Capital Transaction.
(k) CODE. The Internal Revenue Code of 1986, as amended from
time to time, or any corresponding provision or provisions of any federal
internal revenue law enacted in substitution of the Internal Revenue Code of
1986.
(l) DEPRECIATION. For each fiscal year or other period, an
amount equal to the depreciation, amortization, or other cost recovery deduction
allowable for federal income tax purposes with respect to an asset for such year
or other period, except that if the Gross Asset Value of an asset differs from
its adjusted tax basis (for federal income tax purposes) at the beginning of
such year or other period, Depreciation shall be an amount which bears the same
ratio to such beginning Gross Asset Value as the federal income tax
depreciation, amortization, or other cost recovery deduction for such year or
other period bears to such beginning adjusted tax basis, provided, however, that
if the federal income tax depreciation, amortization, or other cost recovery
deduction for such year is zero, Depreciation shall be determined with reference
to such beginning Gross Asset Value using any reasonable method selected by the
Venturers.
(m) DESIGNATED PERSON. The person selected to represent each
Venturer, as more fully set forth in Section 2.7 hereof.
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(n) EVENT OF TERMINATION. Any of the events that result in
dissolution of the Venture as set forth in Section 8.1 hereof.
(o) XXXXXX. Xxxxxx Family Homes, Inc., a Florida corporation,
which is owned and controlled by Xxxx Xxxxxx and his Affiliates.
(p) GROSS ASSET VALUE. With respect to any asset, the
asset's adjusted basis for federal income tax purposes, except as follows:
(i) The initial Gross Asset Value of any asset
contributed by a Venturer to the Venture shall be the amount credited as a
Capital Contribution increased by the amount of any liability assumed or
incurred by the Venture in connection with the contribution;
(ii) The Gross Asset Value of each Venture asset
shall be adjusted to equal its gross fair market value, as determined by the
Venturers, as of the following times; (a) the acquisition of an additional
interest in the Venture by any new or existing Venturer in exchange for more
than a DE MINIMUS Capital Contribution; (b) the distribution by the Venture to a
Venturer of more than a DE MINIMUS amount of Venture property other than money
by the Venture to a retiring or continuing Venturer as consideration for an
interest in the Venture, unless all Venturers receive simultaneous distributions
of undivided interests in the distributed Property in proportion to their
Venture Percentages in the Venture; and (c) the liquidation of the Venture
within the meaning of Treasury Regulation Section 1.704-1(b)(2)(ii)(g)
("Liquidation");
(iii) The Gross Asset Value of any Venture asset
distributed to any Venturer shall be the gross fair market value of such asset
on the date of distribution; and
(iv) In the event the Venture makes an election
pursuant to Code Section 754, the Gross Asset Value of each Venture asset shall
be increased (or decreased) to reflect any adjustments to the adjusted basis of
such assets pursuant to Code Section 734(b) or Code Section 743(b), but only to
the extent that such adjustments are taken into account in determining Capital
Accounts pursuant to Treasury Regulation Section 1.704-1(b)(2)(iv)(m); provided,
however, that Gross Asset Value shall not be adjusted pursuant to this
subparagraph to the extent the Venturers determine that an adjustment pursuant
to subparagraph (ii) above is necessary or appropriate in connection with a
transaction that would otherwise result in an adjustment pursuant to this
subparagraph (iv).
If the Gross Asset Value of an asset has been determined or adjusted pursuant to
subparagraphs (i), (ii) or (iv) hereof, such Gross Asset Value shall thereafter
be adjusted
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by the Depreciation taken into account with respect to such asset for purposes
of computing Adjusted Net Income or Adjusted Net Loss.
(q) INTERIM CAPITAL TRANSACTION. A transaction pursuant to
which the Venture borrows funds or refinances existing debt, a sale,
condemnation, exchange, abandonment or other disposition of a portion (which is
less than substantially all) of the assets of the Venture, an insurance recovery
or any other transaction, other than a Terminating Capital Transaction, that, in
accordance with generally accepted accounting principles, is considered capital
in nature.
(r) LAW. The Florida Revised Uniform Partnership Act.
(s) MANAGING VENTURER. Xxxxxx, unless terminated as same
pursuant to Section 4.2 hereof.
(t) ORIOLE. Oriole Joint Venture Limited, a Florida limited
partnership.
(u) ORIOLE REDEMPTION. The right of the Venture to redeem
Oriole's Venture Interest in accordance with Section 7.5 hereof.
(v) ORIOLE'S UNRETURNED CAPITAL CONTRIBUTION. The amount
which, at any given point in time, is equal to a Oriole's total Capital
Contribution, as reflected on the Venture's books and records, reduced, but not
below zero, by all prior distributions made to Oriole pursuant to Sections
5.3(b) and 8.2(e) hereof.
(w) PER LOT AMOUNT. The sum of Three Thousand Dollars
($3,000), if Oriole's Unreturned Capital Contribution has been reduced to zero
on or prior to December 31, 1996, and, an amount equal to Six Thousand Dollars
($6,000), in all other events.
(x) PREFERRED RETURN. The amount which, at any given point in
time, is equal to thirteen percent (13%) per annum on Oriole's Unreturned
Capital Contribution, as the same exists from time to time, calculated from the
date Oriole's Capital Contribution was received by the Partnership through the
date of calculation, reduced by distributions in satisfaction of the Preferred
Return theretofore made to Oriole pursuant to Sections 5.3(a) or 8.3(d) hereof.
(y) PROPERTY. The real property located in Palm Beach
County, Florida, more fully described in EXHIBIT A annexed hereto.
(z) PURCHASE CONTRACT That certain Purchase Contract entered
into by and between Xxxxxx, as purchaser, and VRV, Inc., as seller, dated as of
February 26, 1996, as amended from time to time, with respect to the purchase
and sale of the Property.
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(aa) PUT CLOSING. The closing of the sale of Oriole's Venture
Interest to Xxxxxx in connection with the exercise of a Put Right, as more fully
set forth in Section 7.4 hereof.
(bb) PUT NOTICE. The notice delivered by Oriole exercising
its Put Right, as more fully set forth in Section 7.4 hereof.
(cc) PUT PRICE. The price that Xxxxxx will pay to acquire
Oriole's Venture Interest upon exercise of its Put Right, as determined in
accordance with Section 7.4 hereof.
(dd) PUT RIGHT. The right of Oriole, pursuant to Section 7.4
hereof, to cause Xxxxxx to purchase its Venture Interest, as more fully set
forth in Section 7.4 hereof.
(ee) REDEMPTION CLOSING. The closing of the redemption of
Oriole's Venture Interest by the Venture in connection with the exercise of a
Redemption Right, as more fully set forth in Section 7.5 hereof.
(ff) REDEMPTION NOTE. The promissory note to be delivered by
the Venture to Oriole to pay the Redemption Price in accordance with Section 7.5
hereof.
(gg) REDEMPTION NOTICE. The notice delivered by the Venture
exercising its Redemption Right, as more fully set forth in Section 7.5 hereof.
(hh) REDEMPTION PRICE. The price that the Venture will pay
to redeem Oriole's Venture Interest upon exercise of its Redemption Right, as
determined in accordance with Section 7.5 hereof.
(ii) REDEMPTION RIGHT. The right of the Venture, pursuant to
Section 7.5 hereof, to redeem Oriole's entire Venture Interest, as more fully
set forth in Section 7.5 hereof.
(jj) STIPULATED RATE. The rate of interest, calculated
annually, equal to two percent (2%), plus the annual rate of simple interest
announced from time to time by Citibank, N.A. as its commercial lending rate to
its most credit worthy borrowers for loans maturing within ninety (90) days, but
not higher than the highest nonusurious rate of simple interest for commercial
loans under applicable law, nor lower than the lowest interest rate that may be
charged without causing the imputation of interest for federal income tax
purposes.
(kk) TERM. The period commencing as of the date of this
Agreement and ending upon the occurrence of an Event of Termination.
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(ll) TERMINATING CAPITAL TRANSACTION. A sale, condemnation,
exchange or other disposition, whether by foreclosure, abandonment or otherwise,
of all or substantially all of the then remaining assets of the Venture or a
transaction that will result in a dissolution of the Venture.
(mm) TREASURY REGULATIONS OR "REGULATIONS". Treasury
Regulations shall mean regulations promulgated by the United States Treasury
Department interpreting the Code.
(nn) VENTURE. Xxxxxx Family Homes at Morikami Park, the joint
venture organized and existing pursuant to this Agreement and the Law.
(oo) VENTURE'S ACCOUNTANTS. The accountants for the Venture
as selected, from time to time, by the Managing Venturer.
(pp) VENTURE INTEREST OR INTERESTS. The entire ownership
interest of a Venturer in the Venture at any particular time, including any and
all distributions, allocations and other incidents of participation in the
Venture to which such Venturer may be entitled as provided in this Agreement and
under the Law, together with the obligations of such Venturer to comply with all
of the terms and provisions of this Agreement and the Law, and further including
its Capital Account hereunder.
(qq) VENTURE PERCENTAGE. The percentage interest of each
Venturer in the Venture which, as of the date hereof, is as follows:
(i) Oriole - 50%
(ii) Xxxxxx - 50%
ARTICLE II
FORMATION, NAME, PRINCIPAL OFFICE AND PURPOSE
2.1 FORMATION. The Venturers hereby form a joint venture partnership
pursuant to the Law and all other applicable laws of the State of Florida, for
the purposes set forth herein.
2.2 NAME. The name of the Venture shall be "Xxxxxx Family Homes at
Morikami Park" and the business and affairs of the Venture initially shall be
conducted under said name. The Venture may conduct business under such other
name or fictitious name as may be determined, from time to time, by the Managing
Venturer. The Venturers shall execute all assumed or fictitious name
certificates necessary or appropriate to be filed in the applicable records of
any county or jurisdiction in which the Venture is doing business.
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2.3 PRINCIPAL OFFICE AND PLACE OF BUSINESS. The principal office of the
Venture to which all notices to the Venture shall be sent shall be located at
000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxxx Xxxxx, Xxxxxxx 00000, or at such other
location in the State of Florida as may be determined by the Managing Venturer.
2.4 Purpose and Scope of the Venture.
(a) The business, purpose and scope of the Venture is to
acquire, own, develop, improve, maintain, manage, operate, sell, lease,
mortgage, exchange and otherwise use all or any portion of the Property for the
production of income and profit, and to engage in all manner of transactions and
activities incidental to the foregoing.
(b) It is the present intent of the Venturers to acquire the
Property and pursue the Business Plan. The Business Plan provides for the
Venture to develop, construct and market 89 single family homes to the public.
In furtherance thereof, the Venture shall undertake the necessary planning and
permitting to enable the Property to be subdivided into 89 single family
residential lots, undertake necessary land development, construct a model and
sales center, and market and construct 89 single family homes. The Venturers
agree that, notwithstanding the generality of Section 2.4(a) hereof, the purpose
and scope of the Venture shall be as more specifically provided in this
paragraph and by decisions, from time to time, of both Venturers, and the
authority of any Venturer to act on behalf of the Venture shall be limited to
activities within the scope of the Venture, as so limited.
2.5 TERM. The term of the Venture as a general partnership shall
commence as of the date of this Agreement and shall continue in full force and
effect until terminated in accordance with Article VIII of this Agreement or as
otherwise provided by the Law.
2.6 TITLE. Legal title to the Venture's property shall be held in the
name of the Venture.
2.7 DESIGNATED PERSON. For purposes of facilitating the performance of
the terms and provisions of this Agreement and the operation of the Venture,
each Venturer designates the person(s) set forth below opposite such Venturer's
name ("Designated Person") as such Venturer's authorized representative and
attorney-in-fact to take all actions, make all decisions and execute and deliver
all documents on its behalf which such Venturer, in its capacity as Venturer, is
permitted or required to take, make or execute and deliver pursuant to this
Agreement. Either Venturer may change its Designated Person by delivering to the
other Venturers and to the Venture, written notice thereof, which notice shall
be by written certification of the President, if the Venturer is a corporation,
or shall be signed by all general partners if the Venturer is a partnership. The
foregoing is intended to estop any Venturer from denying the authority of its
Designated Person to act on its
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behalf with respect to Venture matters and shall not be construed to preclude
other duly authorized persons from acting on any Venturer's behalf. The
Designated Persons, as of the date hereof, are as follows:
DESIGNATED PERSON
Oriole Xxxxxxx X. Xxxx
or Xxxx Xxxx (only one required)
Xxxxxx Xxxx Xxxxxx
ARTICLE III
CAPITAL CONTRIBUTION; FINANCING
3.1 INITIAL CAPITAL CONTRIBUTIONS. Each Venturer shall make the
following Capital Contributions to the Venture:
(a) Oriole The sum of One Million Four Hundred Thousand Dollars
($1,400,000) in cash for which Oriole shall receive a
credit to its Capital Account in the amount thereof.
Oriole shall make its Capital Contribution in connection
with a closing at which the Property will be conveyed to
the Venture, free and clear of any liens or
encumbrances other than the Approved Mortgage.
(b) Xxxxxx Simultaneous with the execution hereof, Xxxxxx shall
contribute all of its right, title and interest in and to the
Purchase Contract, all studies, appraisals, reports,
plans, specifications, drawings, designs, tests,
marketing analyses, contracts and other assets,
tangible and intangible, owned by Xxxxxx or any
Affiliate of Xxxxxx and relating to the Property or the
Business Plan and, to the extent transferable, all
governmental approvals or permits relating to the
Property, to the Venture. The Venture shall hereafter
assume all obligations of the "Purchaser" under the
Purchase Contract and indemnify and hold harmless
Xxxxxx with respect thereto. Xxxxxx and the Venture
shall execute an Assignment and Assumption
Agreement to accomplish the foregoing, which
document shall be in the form of EXHIBIT B hereto.
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Xxxxxx will receive no credit to its Capital
Account with respect to the assignment of
the Purchase Contract or any of the other
items referred to in this Section 3.1(b).
3.2 ADDITIONAL CAPITAL.
No Venturer shall be required to contribute any additional capital to
the Venture.
3.3 THIRD PARTY FINANCING. Xxxxxx has obtained a commitment for
financing a portion of the Venture's acquisition of the Property from Xxxxxxx
Bank, N.A. in the initial amount of $3,775,000 (the "Approved Mortgage"). The
Approved Mortgage shall be non-recourse as to Oriole and Oriole shall have no
obligation to guarantee such financing. Xxxxxx may secure such third-party
financing with a first mortgage lien on the Property and any other assets of the
Venture and shall, to the extent required to obtain such third-party financing,
cause Xxxx Xxxxxx, Elvine Xxxxxx, Xxxxxx and Xxxx Xxxxxx Construction Company to
personally guarantee such financing. Xxxx Xxxxxx, Elvine Xxxxxx, Xxxxxx and Xxxx
Xxxxxx Construction Company shall execute a Joinder hereto acknowledging the
foregoing obligation. The Venturers acknowledge and agree that the Approved
Mortgage is for a one year term and that the Venture will be required to
refinance such loan to obtain additional funding required for the development of
the Property and construction of single family residences thereon. The Venture
shall not modify the Approved Mortgage, obtain any additional third-party
financing, or enter into any commitments or agreements with respect to same
without the prior approval of all Venturers.
3.4 OTHER MATTERS RELATING TO CAPITAL.
(a) Loans by any Venturer to the Venture shall not be considered
Capital Contributions. If not expressly provided otherwise, loans to the Venture
from a Venturer shall accrue interest at the Stipulated Rate. Any loan by a
Venturer to the Venture must be authorized and agreed to by the Managing
Venturer.
(b) Except as may be expressly provided herein, no Venturer shall
be entitled to withdraw or to the return of any part of the Capital Contribution
of such Venturer or to receive property or assets other than cash from the
Venture for any reason whatsoever. To the extent that any distributions which
any Venturer is entitled to receive pursuant to Article V hereof would
constitute a return of capital, each of the Venturers consent to the withdrawal
of such capital.
(c) No Venturer shall be entitled to priority over any other
Venturer with respect to return of his or her loans or Capital Contribution,
except to the extent expressly provided in this Agreement.
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(d) No interest shall be paid by the Venture on Capital Contributions,
except to the extent expressly provided in this Agreement.
ARTICLE IV
MANAGEMENT AND OPERATION OF THE VENTURE
4.1 MAJOR DECISIONS. No decision shall be made with respect to any of
the major decisions enumerated below ("Major Decisions") unless and until same
has been approved in writing by all Venturers. The Major Decisions are:
(a) The sale, exchange or other disposition of all, or
substantially all, of the property and assets of the Venture;
(b) A decision to enter into any financing arrangements
including, without limitation, the Approved Mortgage, any other financing
arrangements with respect to development, construction or permanent financing of
the Property or for operating the Property and any material modifications to any
single financing;
(c) Any material modification to the Business Plan;
(d) The admission of any additional parties as members of the
Venture, whether by issuance of a new interest in the Venture or by transfer of
all or any part of a Venturer's interest in the Venture;
(e) A decision by the Venture to acquire any real property
other than the roperty;
(f) A decision to dissolve the Venture;
(g) Any transaction, not expressly authorized herein, between
the Venture and a Venturer or any Affiliate of a Venturer;
(h) Making all federal income tax elections available to the
Venture and approving all federal, state and local income tax returns of the
Venture prior to their submission to the appropriate governmental entity; and
(i) Such other decisions as, pursuant to the terms hereof,
are vested in both Venturers.
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4.2 OPERATIONAL RESPONSIBILITIES.
(a) The Venturers hereby designate Xxxxxx as the Managing
Venturer of the Venture to serve for the entire term of the Venture unless
earlier terminated in the manner hereinafter set forth. The Managing Venturer
shall act in a capacity analogous to that of a chief operating officer of the
Venture and shall be responsible for conducting the business and affairs of the
Venture.
The Managing Venturer's scope of authority and
responsibilities shall include, without in any way limiting the generality of
the foregoing, the following:
(i) Preparing and revising annual budgets for
the Venture for submission to the Venturers for approval;
(ii) Negotiating contracts with respect to
development and other activities of the Venture and executing such contracts on
behalf of the Venture and supervising performance of same;
(iii) Appearing before applicable governmental
authorities, on behalf of the Venture, to pursue land use, zoning, environmental
and other permits and licenses required by the Venture in connection with its
activities;
(iv) Retaining services of engineers, surveyors,
appraisers, architects, attorneys, real estate brokers, mortgage brokers,
corporate fiduciaries, escrow agents, insurers, advertising personnel and such
other technical or administrative advisors as are useful to carry out the
purposes of the Venture;
(v) Retaining agents and employees for the
Venture, including project managers for all or any portion of the development
and management of the Property and directing such agents or employees with
respect to the implementation of its decisions in the conduct of the day-to-day
operations of the Venture;
(vi) Negotiating and entering into and executing
agreements and other documents and instrument customarily employed in the real
estate industry in connection with the acquisition, sale, development,
construction and operation of real properties, as well as personal or mixed
property connected therewith;
(vii) Negotiating all necessary financing for the
Venture for submission to the Venturers for approval; and
(viii) Such other matters as are, from time to
time, delegated to the Managing Venturer by both Venturers.
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(b) Xxxxxx agrees to make available the services of Xxxx
Xxxxxx as Xxxxxx'x responsible officer who will undertake to perform, on
Xxxxxx'x behalf, the services of Managing Venturer in accordance with this
Agreement. In the event Xxxx Xxxxxx is unable, on behalf of Xxxxxx, to perform
the services of Managing Venturer as a result of his death or disability (i.e.,
the inability due to physical or mental reasons to perform full-time services
for a continuous period of ninety (90) days or is unwilling, in violation of
this Agreement, to perform the services of Managing Venturer, on behalf of
Xxxxxx), Oriole may elect, by written notice to Xxxxxx, to terminate Xxxxxx'x
role as Managing Venturer hereunder and to exercise such other remedies as are
available hereunder or under applicable law. Selection of a replacement Managing
Venturer shall require unanimous consent of the Venturers, which decision,
notwithstanding any other provision of this Agreement, shall be made by each
Venturer, in good faith, and in the best interests of the Venture.
4.3 NO VENTURER FEES. Xxxxxx shall receive no compensation from the
Venture for performing the functions, on behalf of the Venture, specified in
Section 4.2(a) hereof or otherwise. Moreover, Xxxxxx acknowledges that it shall
not be entitled to receive any reimbursement from the Venture for the overhead
expenditures it will incur in carrying out its responsibilities on behalf of the
Venture. Neither Xxxxxx, Oriole nor any Affiliate of either shall receive any
fee, distributions or other payment whatsoever, directly or indirectly, from the
Venture except as provided herein.
4.4 LIABILITY AND INDEMNIFICATION. No Venturer nor any of its members,
or their respective officers, shareholders, directors, Designated Persons,
employees or agents shall be liable to the Venture or any Venturer for any loss
or liability incurred in connection with any act or omission in the conduct of
the business of the Venture in accordance with the terms hereof, except for any
loss or liability which the Venture or Venturer incurs in connection with such
person's or entity's fraud, willful and wanton misconduct or gross negligence.
The Venture, to the fullest extent permitted by law, hereby agrees to defend and
indemnifies and holds harmless each Venturer and its members and their
respective officers, directors, shareholders, Designated Persons, employees and
agents from and against any and all liability, loss, cost, expense or damage
incurred or sustained by reason of any act or omission in the conduct of the
business of the Venture in accordance with the terms hereof including, but not
limited to, reasonable attorneys' and paralegals' fees through any and all
negotiations, and trial, appellate, bankruptcy and collection levels; provided,
however, the Venture shall not indemnify such person or entity or hold it
harmless with respect to any of the foregoing incurred in connection with such
person's or entity's fraud, willful and wanton misconduct or gross negligence.
Notwithstanding the foregoing, the Venture shall advance, on behalf of any
Venturer against whom a claim is filed with respect to any alleged act or
omission in the conduct of the business of the Venture, all costs and expenses
of litigation, including reasonable attorneys' and paralegals' fees through any
and all negotiations, at trial, appellate, bankruptcy and collection levels, and
will be entitled to seek reimbursement from the Venturer for such
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sums advanced only to the extent such Venturer is ultimately determined, by a
final non-appealable order or judgment, to have been guilty of fraud, willful or
wanton misconduct or gross negligence and only to the extent the Venture is not
reimbursed by any insurance policies with respect to such costs and expenses.
The provisions of this Section 4.4 shall survive termination of this Agreement.
4.5 COMPETITION. Each Venturer may have other business interests and
may engage in any other business or trade, individually, in partnership or
association with others or in any capacity whatsoever, whether or not such
business competes with the Venture. No Venturer shall be required to devote its
entire time or attention to the business of the Venture or, in any event, more
time or attention than shall reasonably be required to carry out its obligations
under this Agreement. Each Venturer recognizes specifically that the other
Venturers (directly or through Affiliates) are actively engaged in competitive
businesses with the Venture and that nothing contained in this Agreement or
otherwise shall be deemed to restrict in any way the rights of any Venturer, or
any officer, director or Affiliate of any Venturer (or member thereof) to engage
in, or to conduct any other activity, trade or business, independently or with
others (including the development of competing land sites) whether or not any
such activity, trade or business is adverse to, competes with or is
complementary with the business of the Venture or the other Venturers and
neither the Venture nor the other Venturers shall have any rights in or to such
trade, business or activity or the income or profits therefrom. The Venturers
hereby expressly agree that each is aware of, and consents to, all existing and
future business activities of the other Venturers that are in any way
competitive with the business of the Venture and that the conduct of such
activities shall not constitute a breach of any Venturer's loyalty obligation to
the Venture or the other Venturers under the Law.
ARTICLE V
ALLOCATIONS AND DISTRIBUTIONS
5.1 ALLOCATIONS FROM OPERATIONS AND FROM CAPITAL TRANSACTIONS. Except
as provided below, the Adjusted Net Income or Adjusted Net Loss of the Venture
from operations and any income (including gain) or losses resulting from any
Interim or Terminating Capital Transactions as calculated for federal income tax
purposes and reported by the Venture on its U.S. Partnership Return of Income
for each fiscal year (or portion thereof) during the term of this Agreement,
shall be allocated to the Venturers as follows:
(a) Until the amount of Adjusted Net Income allocated to
Oriole equals the aggregate amount of distributions of Preferred Return to
Oriole, any Adjusted Net Income shall be allocated as follows:
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(i) First, to Oriole, an amount equal to the
Preferred Return distributed to Oriole during the current and all prior fiscal
years until the aggregate Adjusted Net Income allocated to Oriole equals the
aggregate amount of such distributions;
(ii) Second, to any Venturer previously
allocated losses under subsection 5.1(b), Adjusted Net Income shall be allocated
ratably and in the inverse order to the manner in which such losses were
allocated, until the cumulative Adjusted Net Income allocated pursuant to this
subsection 5.1(a)(ii) hereof for the current and all prior fiscal years is equal
to the cumulative losses allocated pursuant to subsection 5.1(b) hereof for all
prior periods; and
(iii) Thereafter, Adjusted Net Income shall be
allocated to the Venturers in accordance with their respective Venture
Percentages.
(b) Any Adjusted Net Loss shall be allocated:
(i) First, to the Venturers, to the extent and
in proportion to any Adjusted Net Income previously allocated to the Venturers
pursuant to Section 5.1(a)(ii); and
(ii) Thereafter, to Adjusted Net loss shall be
allocated 99% to Xxxxxx and 1% to Oriole.
5.2 SEPARATE ALLOCATIONS. The following rules apply notwithstanding the
provisions of Section 5.1 hereof:
(a) DEPRECIATION RECAPTURE. Notwithstanding anything to the
contrary in this Article Five, and for purposes of determining the nature (as
ordinary or capital) of the income or gain allocable under such provisions, gain
(if any) recognized as ordinary income in respect of a Capital Transaction
pursuant to Code Sections 1245 and 1250 shall be deemed to be allocated to the
Venturers in proportion to their accumulated depreciation allocations.
(b) COMPLIANCE WITH REGULATORY PROVISIONS. Notwithstanding
anything to the contrary contained in this Agreement, the provisions of this
Agreement shall be construed, and allocations shall be made, in a manner
consistent with Treasury Regulations promulgated under Code Sections 704 and 752
(collectively, the "Section 704 and 752 Regulations"). In the event of a
conflict between the provisions of this Agreement and the requirements of the
Section 704 and 752 Regulations, the Section 704 and 752 Regulations shall
govern.
(c) CODE SECTION 704(c). In accordance with Code
Section 704(c) and the Regulations thereunder, income, gain, loss and deduction
with respect to any property
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contributed to the capital of the Venture shall, solely for tax purposes, be
allocated among the Venturers so as to take account of any variation between the
adjusted basis of such property to the Venture for federal income tax purposes
and its initial Gross Asset Value.
In the event the Gross Asset Value of any Venture asset is
adjusted pursuant to the second paragraph of the definition of Gross Asset
Value, subsequent allocations of income, gain, loss and deduction with respect
to such asset shall take account of any variation between the adjusted basis of
such asset for federal income tax purposes and its Gross Asset Value in the same
manner as under Code Section 704(c) and the Regulations thereunder.
Any elections or other decisions relating to such allocations
shall be made by the Venturers in any manner that reasonably reflects the
purpose and intention of this Agreement. Allocations pursuant to this Section
5.2(c) 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 Venturer's Capital
Account or share of Adjusted Net Income, Adjusted Net Loss, other items or
distributions pursuant to any provision of this Agreement.
(d) CERTAIN DISALLOWED DEDUCTIONS. In the event fees paid to a
Venturer or its Affiliates pursuant to this Agreement or any other agreement
between the Venture and such Venturer or Affiliate and deducted by the Venture,
in reliance on Sections 162 or 707(a) or (c) of the Code or otherwise, are
disallowed as deductions to the Venture and treated as Venture distributions,
then the Adjusted Net Income or Adjusted Net Loss of the Venture, as the case
may be, for the taxable year or years in which such fees are disallowed, shall
be increased or decreased, as the case may be, by such disallowed amounts and
there shall be allocated to the Venturer who received (or whose Affiliate
received) such payments an amount of gross income for such taxable year or years
equal to the amount of the fees which are disallowed and treated as Venture
distributions.
5.3 DISTRIBUTION OF AVAILABLE CASH. Periodically as determined by the
Managing Venturer, the Available Cash of the Venture, if any, shall be
distributed to the Venturers in accordance with the provisions of this Section
5.3. Available Cash will be distributed to the Venturers as follows and in the
following order of priority:
(a) FIRST: To Oriole, until such time as the Preferred Return
on Oriole's Unreturned Capital Contribution is fully satisfied, an amount equal
to the Preferred Return.
(b) SECOND: To Oriole, until such time as the Oriole
Unreturned Capital Contribution is zero, an amount equal to its Unreturned
Capital Contribution.
(c) THIRD: To each Venturer, in accordance with their
respective Venture Percentages.
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5.4 DISTRIBUTION FOLLOWING TERMINATING CAPITAL TRANSACTION.
Distributions following a Terminating Capital Transaction shall be distributed
in the manner set forth in Section 8.2 hereof.
5.5 DISTRIBUTION IN CASH ONLY. No Venturer in his capacity as a
Venturer shall have the right to demand or receive property other than cash (as
and when provided herein) from the Venture for any reason whatsoever and no
Venturer shall have the right to xxx for partition of the Venture or for the
Venture's assets.
ARTICLE VI
FISCAL MATTERS
6.1 ACCOUNTING YEAR. The fiscal year of the Venture for accounting
purposes ("Accounting Year") and for income tax purposes shall end on December
31, or on such other day as may be agreed upon by the Venturers or as may be
required by applicable law.
6.2 BOOKS AND RECORDS. The Managing Venturer shall keep, or cause to be
kept, full and accurate books and records of all transactions of the Venture on
the accrual method of accounting. All organizational records of the Venture and
other records required to be kept by the Venture under the Law shall, at all
times, be maintained at the Venture's principal office referred to in Section
2.3 hereof, and shall be open during ordinary business hours for inspection and
copying upon the reasonable request and at the expense of any Venturer and its
authorized representatives.
6.3 REPORTS AND STATEMENTS.
(a) ANNUAL REPORTS. Within ninety (90) days after the end of
each Accounting Year, the Managing Venturer shall, at the expense of the
Venture, cause to be delivered to the Venturers the following unaudited
financial statements, prepared in accordance with generally accepted accounting
principles, which shall be prepared by the Venture Accountants:
(i) A balance sheet of the Venture as of the end
of such Accounting Year; and
(ii) A profit and loss statement for such
Accounting Year.
Such financial statements shall be accompanied by such other
information as, in the judgment of the Managing Venturer, may be reasonably
necessary for the Venturers to be advised of the financial status and results of
operations of the Venture.
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(b) OTHER REPORTS. Unless Oriole agrees otherwise, Xxxxxx, as
Managing Venturer shall, at the expense of the Venture, cause current reports of
Venture affairs to be prepared and disseminated to the Venturers including,
without limitation, periodic unaudited financial statements of the Venture,
periodic budget and cash flow comparisons, narrative descriptions of the
Venture's operations during a preceding period and its financial condition at
the end of such period, reports with respect to any litigation pending or
threatened against the Venture and information concerning any actual or
potential material default by the Venture under any of its contractual
obligations.
6.4 TAX RETURNS. The Managing Venturer shall prepare or cause to be
prepared, all tax returns and statements, if any, that must be filed on behalf
of the Venture with any taxing authority and shall make or cause to be made the
timely filing thereof. The tax returns shall be prepared and distributed to the
Venturers for approval not later than the March 31 following the end of each
Accounting Year.
6.5 TAX STATUS. Any provision hereof to the contrary notwithstanding,
solely for United States federal income tax purposes, the Venture hereby
recognizes and agrees that it shall be subject to all provisions of Subchapter K
of Chapter 1 of Subtitle A of the Code. The filing with the Service of U.S.
Returns of Partnership Income shall not be construed to expand the purposes of
the Venture or any obligations or liabilities of the Venturers.
6.6 TAX ELECTIONS. The Managing Venturer shall recommend, from time to
time, whether or not to make or attempt to revoke any and all tax elections
regarding depreciation methods and recovery periods, capitalization of
construction period expenses, amortization of organizational and start-up
expenditures, basis adjustments upon admission or retirement of Venturers, and
any other federal, state or local income tax election, which elections shall be
made if approved by all of the Venturers.
6.7 BANK ACCOUNTS. The Managing Venturer may authorize the
establishment of Venture accounts for the Venture at banks, savings and loan
associations or other financial institutions ("Accounts") selected by the
Managing Venturer. The Managing Venturer shall designate the authorized
signatories for all the Accounts. No funds of the Venture shall be commingled
with funds of any Venturer or any other individual or entity.
ARTICLE VII
TRANSFER OF VENTURE INTEREST
7.1 GENERAL PROHIBITION. Except as expressly provided herein and except
with the prior written consent of all the Venturers, no Venturer shall sell,
transfer, assign, syndicate, pledge, encumber or otherwise dispose of, either
voluntarily, involuntarily, by operation of law or otherwise ("Transfer") all or
any part of its Venture Interest unless made pursuant to and in compliance with
this Article Seven and unless a copy of an executed
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and acknowledged assignment effecting such Transfer has been filed with the
Venture. A transaction which results in any person other than Xxxx Xxxxxx,
directly or indirectly, owning all of the outstanding equity interest in Xxxxxx
shall constitute a transfer of Xxxxxx'x Venture Interest. Any purported Transfer
of a Venture Interest in violation of the provisions of this Agreement shall be
void ab initio.
7.2 RIGHTS OF ASSIGNEE. Any Transfer of a Venture Interest (or any part
thereof) to a person ("Assignee") who is not admitted to the Venture as a
Venturer shall vest in such person only rights of an assignee, and shall not
entitle the Assignee to be admitted to the Venture as a Venturer. An Assignee
who has not been admitted to the Venture as a Venturer shall only have the right
to receive the share of profits, losses, tax credits and distributions of the
Venture to which the assigning Venturer would have been entitled with respect to
the Venture Interest (or a portion thereof) so assigned and shall have no right
to require any information or accounting of the Venture's transactions or
finances or to inspect Venture books, or to exercise any powers or other rights
including voting and consent rights, incidental to ownership of a Venture
Interest. Admission of an Assignee to the Venture as a Venturer in the manner
hereinafter provided shall vest in such person all rights and powers, and
subject such person to all duties and all obligations thereafter arising, of a
Venturer.
7.3 ADMISSION OF VENTURERS. A Venturer may Transfer all or any part of
its Venture Interest to an Assignee to be admitted to the Venture as a Venturer
if all of the following conditions are met:
(a) All other Venturers consent in writing to the Transfer and
the admission of the Assignee as a Venturer, which consent may be withheld in
the sole discretion of each Venturer, it being agreed that each Venturer has
entered into this Agreement in reliance upon the special expertise and
experience of the other Venturers;
(b) The Assignee agrees in writing to be bound by the
provisions of this Agreement;
(c) The Assignee executes any and all documents, including an
amendment to this Agreement, required to effectuate or evidence its admission to
the Venture;
(d) The Venture has received an opinion of counsel to the
effect that the contemplated Transfer and admission of the Assignee as a
Venturer will not cause the termination of the Venture for federal income tax
purposes or cause the Venture not to be treated as a partnership for federal
income tax purposes or cause any other materially adverse impact to the Venture
or any Venturer;
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(e) The Assignee reimburses the Venture for all reasonable
costs and expenses (including reasonable attorney's fees) incurred in connection
with the Transfer and admission;
(f) The Assignee shall have delivered to the Venture, in
writing, the consent or waiver of the applicable parties to any note, mortgage,
loan agreement, contract or similar instrument or document to which the Venture
is a party and as to which the proposed Transfer may be a violation, event of
default under, or give rise to a right of acceleration; and
(g) The Assignee is not a minor or legally incompetent.
7.4 ORIOLE'S PUT RIGHT. In the event (a) Oriole's Unreturned Capital
Contribution has not been reduced to zero by the first anniversary of this
Agreement or (b) an Event of Termination has occurred on or prior to the first
anniversary of this Agreement, Oriole shall have the right ("Put Right"),
subject to the prior right of owner of the Approved Mortgage to be repaid in
full with respect to the Approved Mortgage, at any time thereafter, to cause
Xxxxxx to purchase all, but not less than all, of Oriole's Venture Interest. If
it elects to do so, Oriole shall exercise its Put Right by delivering written
notice to Xxxxxx ("Put Notice") setting forth: (i) its decision to sell its
entire Venture Interest to Xxxxxx for the Put Price, and (ii) the amount of the
Put Price.
The Put Price shall be an amount equal to the sum of (i) the remaining
balance of Oriole's Unreturned Capital Contribution; (ii) the accrued and
outstanding Preferred Return; and (iii) $534,000 (in the event the Put Right is
exercised as a result of an event described in subsection (a) of the preceding
paragraph), or $267,000 (in the event the Put Right is exercised as a result of
the occurrence of an Event of Termination on or prior to the first anniversary
of this Agreement). Provided that the Approved Mortgage has been repaid in full,
the closing ("Put Closing") of the sale of Oriole's Venture Interest to Xxxxxx
shall occur on a date and at a time and place mutually agreed to by Oriole and
Xxxxxx, but not later than thirty (30) days after the Put Notice is delivered to
Xxxxxx. The Put Price shall be paid at the Put Closing by Xxxxxx paying 100% of
the Put Price by cashier's check, federal funds wire or law firm trust account
check. At the Put Closing, Oriole shall, in writing, represent and warrant to
Xxxxxx that Oriole's Venture Interest is owned by Oriole free and clear of all
claims and encumbrances and that valid title to Oriole's Venture Interest will
be vested in Xxxxxx (or its designees) upon consummation of the transaction.
Xxxxxx may designate one or more persons to take title to all or any portion of
the Venture Interest being conveyed. Xxxx Xxxxxx, Xxxxxx Xxxxxx and Xxxx Xxxxxx
Construction Company shall personally guarantee Xxxxxx'x obligation to pay the
Put Price at the Put Closing and they shall execute a Joinder hereto
acknowledging the foregoing obligation.
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7.5 VENTURE REDEMPTION RIGHT. Provided that Oriole's Unreturned Capital
Contribution has been reduced to zero, the Venture, by the decision of the
Managing Venturer, shall have the right ("Redemption Right") exercisable on or
before the date that the Venture closes on its first sale of an individual lot
(whether or not improved with a residential dwelling), to purchase all, but not
less than all, of Oriole's Venture Interest. If it elects to do so, the Venture
shall exercise its Redemption Right by delivering written notice to Oriole
("Redemption Notice") setting forth: (i) its decision to purchase Oriole's
entire Venture Interest for the Redemption Price, and (ii) the amount of the
"Redemption Price".
The Redemption Price shall be an amount equal to (a) $267,000,
in the event Oriole's Unreturned Capital Contribution was reduced to zero on or
prior to December 31, 1996 or (b) $534,000, in all other events. The closing
("Redemption Closing") of the redemption of Oriole's Venture Interest by the
Venture shall occur on a date and at a time and place mutually agreed to by
Oriole and the Venture, but not later than the earlier of (x) the closing by the
Venture on the first sale of an individual lot, or (y) thirty (30) days after
the Redemption Notice is delivered to Oriole. The Redemption Price shall be paid
at the Redemption Closing by delivery of a promissory note of the Venture
("Redemption Note") in the principal amount of the Redemption Price. The
Redemption Note shall not bear interest and shall be payable by the Venture to
Oriole by paying Oriole the Per Lot Amount for each lot for which a contact of
sale is entered into by the Venture on the earlier to occur of (i) the closing
of the conveyance of the lot; or (ii) that date which is five (5) months after
the date a building permit for a dwelling to be constructed on the lot under a
contract with a purchaser was obtained by the Venture. At the Redemption
Closing, Oriole shall, in writing, represent and warrant to the Venture that
Oriole's Venture Interest is owned by Oriole free and clear of all claims and
encumbrances and that valid title to Oriole's Venture Interest will be vested in
the Venture (or its designees) upon consummation of the transaction. The Venture
may designate one or more persons to take title to all or any portion of the
Venture Interest being conveyed.
ARTICLE VIII
DISSOLUTION; TERMINATION
8.1 DISSOLUTION. It is the intention of the Venturers that the business
of the Venture be continued by the Venturers pursuant to the provisions of this
Agreement until such time as the occurrence of an "Event of Termination," as
hereinafter defined, at which time the Venture shall dissolve. The occurrence of
any of the following shall be deemed an "Event of Termination:"
(a) The sale of all or substantially all of the assets of
the Venture;
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(b) The written decision by the Venturers that the
Venture should be dissolved;
(c) The date on which the Venture or a Venturer shall
suffer a Bankruptcy; or
(d) December 31, 2022.
8.2 WIND-UP. Upon the dissolution of the Venture, the Managing Venturer
shall make a final accounting of the business and affairs of the Venture and
shall proceed with reasonable promptness to liquidate the business, property and
assets of the Venture and to distribute the proceeds in the following order of
priority:
(a) To the payment of expenses of any sale, disposition
or transfer of the Venture assets in liquidation of the Venture;
(b) To the payment of just debts and liabilities of the
Venture to those parties not affiliated with a Venturer, in the order of
priority provided by law;
(c) To the establishment of a reasonable reserve for
contingent expenses, final legal, accounting and similar expenses incurred in
connection with liquidating the Venture and for other unforeseen and
miscellaneous expenses, which reasonable reserve, when no longer needed for the
purposes established, shall be distributed as provided in subparagraphs (e) and
(f) below;
(d) To Oriole, its Preferred Return, until such Preferred
Return has been paid in full;
(e) To Oriole, the Oriole Unreturned Capital
Contribution, until the Oriole Unreturned Capital Contribution is paid in full;
and
(f) To the Venturers, pro rata, in accordance with their
then respective Capital Accounts, if positive.
In the event the Venture is "liquidated" within the meaning of
Regulations Section 1.704-1(b)(2)(ii)(g), (a) distributions shall be made
pursuant to this Article Eight to the Venturers who have positive Capital
Accounts in compliance with Regulations Section 1.704-1(b)(2)(ii)(2), and (b) if
any Venturer's Capital Account has a deficit balance (after giving effect to all
contributions, distributions, and allocations for all Years, including the
Accounting Year during which such liquidation occurs), such Venturer shall
contribute to the capital of the Venture the amount necessary to restore such
deficit balance to zero in compliance with Regulations Section
1.704-1(b)(ii)(b)(3).
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The Venturers may elect to distribute the remaining property
and assets of the Venture, if any, in kind, in lieu of selling them, based upon
the then existing fair market value thereof and after allocating to the
Venturers, in accordance with their respective interests in the Venture, any
unrealized gain inherent in such assets.
The wind-up of the affairs of the Venture shall be conducted
by the Managing Venturer. In liquidating the assets of the Venture, all tangible
assets of a saleable value shall be sold at such price and terms as the Managing
Venturer determines to be fair and equitable. Any Venturer may purchase such
assets at such sale. It shall not be necessary to sell any intangible assets of
the Venture. A reasonable time shall be allowed for the orderly liquidation of
the assets of the Venture and the discharge of liabilities to creditors to
minimize the losses that might otherwise occur upon liquidation.
ARTICLE IX
GENERAL PROVISIONS
9.1 RELATIONSHIP. Nothing contained in this Agreement shall be deemed
or construed to constitute any Venturer as a general partner, employee or agent
of the other Venturer, other than in connection with activities included within
the purpose and scope of the Venture as set forth herein and subject to
limitations upon same, as set forth herein.
9.2 NOTICES. All notices, demands or other communications given
hereunder shall be in writing and shall be deemed to have been duly given only
upon hand delivery thereof, including by recognized overnight courier, or upon
the first business day after mailing by United States registered or certified
mail, return receipt requested, postage prepaid, addressed as follows:
To Oriole: c/o Oriole Homes Corp.
0000 X. Xxxxxxxx Xxxx.
Xxxxxx Xxxxx, Xxxxxxx 00000
Attention: Xx. Xxxxxxx X. Xxxx
To Xxxxxx: Xxxxxx Family Homes, Inc.
000 X. Xxxxxxxx Xxxx.
Xxxxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxx Xxxxxx
To Venture: c/x Xxxxxx Family Homes, Inc.
000 X. Xxxxxxxx Xxxx.
Xxxxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxx Xxxxxx
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or at such other address, or to such other person and at such address for that
person, as any party shall designate in writing to the other Venturer for such
purpose in the manner hereinabove set forth.
9.3 ENTIRE AGREEMENT. This Agreement sets forth all the promises,
covenants, agreements, conditions and understandings between the parties hereto,
and supersedes all prior and contemporaneous agreements, understandings,
inducements or conditions expressed or implied, oral or written, except as
herein contained.
9.4 AGENCY. Except as provided herein, nothing herein contained shall
be construed to constitute any Venturer the agent of any other Venturer or to
limit in any manner the Venturers in the carrying on of their own respective
businesses or activities.
9.5 BINDING EFFECT; NO ASSIGNMENT. This Agreement shall be binding upon
the parties hereto, their heirs, administrators, successors and assigns. No
party may assign or transfer its interests herein, or delegate its duties
hereunder, except as expressly provided herein.
9.6 AMENDMENT. The parties hereby irrevocably agree that no attempted
amendment, modification, termination, discharge or change (collectively,
"Amendment") of this Agreement shall be valid and effective, unless the parties
shall unanimously agree in writing to such Amendment.
9.7 NO WAIVER. No waiver of any provision of this Agreement shall be
effective unless it is in writing and signed by the party against whom it is
asserted, and any such written waiver shall only be applicable to the specific
instance to which it relates and shall not be deemed to be a continuing or
future waiver.
9.8 GENDER AND USE OF SINGULAR AND PLURAL. All pronouns shall be deemed
to refer to the masculine, feminine, neuter, singular or plural, as the identity
of the party or parties, or their personal representatives, successors and
assigns may require.
9.9 COUNTERPARTS. This Agreement and any amendments may be executed in
one or more counterparts, each of which shall be deemed an original but all of
which together will constitute one and the same instrument.
9.10 HEADINGS. The article and section headings contained in this
Agreement are inserted for convenience only and shall not affect in any way the
meaning or interpretation of the Agreement.
9.11 GOVERNING LAW. This Agreement shall be construed in accordance
with the laws of the State of Florida and any proceeding arising between the
parties in any manner
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pertaining or related to this Agreement shall, to the extent permitted by law,
be held in Palm Beach County, Florida.
9.12 FURTHER ASSURANCES. The parties hereto will execute and deliver
such further instruments and do such further acts and things as may be
reasonably required to carry out the intent and purposes of this Agreement.
9.13 PROVISIONS SEVERABLE. This Agreement is intended to be performed
in accordance with, and only to the extent permitted by, all applicable laws,
ordinances, rules, and regulations of the jurisdiction in which the parties do
business. If any provision of this Agreement, or the application thereof to any
person or circumstance shall, for any reason or to any extent, be invalid or
unenforceable, the remainder of this Agreement and the application of such
provision to other persons or circumstances shall not be affected thereby, but
rather shall be enforced to the greatest extent permitted by law.
9.14 LITIGATION. If any party hereto is required to engage in
litigation against any other party hereto, either as plaintiff or as defendant,
in order to enforce or defend any of its rights under this Agreement, and such
litigation results in a final judgment in favor of such party ("Prevailing
Party"), then the party or parties against whom said final judgment is obtained
shall reimburse the Prevailing Party for all direct, indirect or incidental
expenses incurred by the Prevailing Party in so enforcing or defending its
rights hereunder including, but not limited to, all attorney's fees, paralegal
fees, court costs and other expenses incurred throughout all negotiations,
trials, collection, bankruptcy or appeals undertaken in order to enforce the
Prevailing Party's rights hereunder.
9.15 REMEDIES. Each party hereto recognizes and agrees that the
violation of any term, provision or condition of this Agreement may cause
irreparable damage to the other parties which may be difficult to ascertain, and
that the award of any sum of damages may not be adequate relief to such parties.
Each party, therefore, agrees that, in addition to other remedies available in
the event of a breach of this Agreement, any party shall have a right to
equitable relief including, but not limited to, the remedy of specific
performance.
9.16 NO FOREIGN PERSON WITHHOLDING. Each of the Venturers hereby
represent and warrant for the benefit of the other that it is not a "foreign
person" within the meaning of Code Section 1445.
9.17 NO RECORDATION. Neither this Agreement nor any memorandum thereof
shall be recorded among the public records of any governmental authority.
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IN WITNESS WHEREOF, the parties have executed this Agreement the day
and year first above written.
Signed, sealed and delivered
in the presence of:
ORIOLE JOINT VENTURE LIMITED, a Florida
limited partnership
By: ORIOLE LIMITED, INC., its general partner
[witness] By: /s/ Xxxxxxx X. Xxxx
------------------------------ -----------------------------------------
Name: Xxxxxxx X. Xxxx
[witness] Title: C.E.O.
------------------------------
XXXXXX FAMILY HOMES, INC., a Florida
corporation
[witness] By: /s/ Xxxx Xxxxxx
------------------------------ -----------------------------------------
Name: Xxxx Xxxxxx
[witness] Title: President
------------------------------
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JOINDER
Reference is hereby made to that certain Joint Venture Agreement of
Xxxxxx Family Homes at Morikami Park dated as of the 2nd day of October, 1996
("Agreement"). The undesigned, by execution of this Joinder, hereby acknowledge
that they have reviewed the Agreement and hereby agree that in the event the
Venture is required to obtain third party financing as provided in Section 3.3
of the Agreement ("Debt"), or in the event Oriole exercised its Put Right in
accordance with Section 7.4 of the Agreement ("Put Debt"), the undersigned shall
absolutely and unconditionally guarantee the Debt and the Put Debt, as the case
may be, and shall execute and deliver such instruments as reasonably requested
by the payee of the Debt or the Put Debt, as the case may be, to evidence such
guarantee. Except as set forth above, the undersigned shall have no further
obligations to personally guaranty any contractual obligation of the Venture
pursuant to the terms of the Agreement.
Dated this 2nd day of October, 1996.
By: /s/ Xxxx Xxxxxx
---------------------------------------
Xxxx Xxxxxx
By: /s/ Xxxxxx Xxxxxx
---------------------------------------
Xxxxxx Xxxxxx
XXXX XXXXXX CONSTRUCTION COMPANY
BY: /s/ Xxxx Xxxxxx
---------------------------------------
Xxxx Xxxxxx, President
XXXXXX FAMILY HOMES, INC.
By: /s/ Xxxx Xxxxxx
---------------------------------------
Xxxx Xxxxxx, President
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