AGREEMENT OF GENERAL PARTNERSHIP
OF
MEADOW POINTE GENERAL PARTNERSHIP
Dated: October 3, 1999
TABLE OF CONTENTS
Page
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ARTICLE 1
ORGANIZATION OF THE PARTNERSHIP.....................................1
1.1 Formation..................................................1
1.2 Name.......................................................1
1.3 Business and Purpose.......................................1
1.4 Principal Place of Business................................2
ARTICLE 2
TERM OF PARTNERSHIP.................................................2
2.1 Term.......................................................2
2.2 Partition..................................................2
ARTICLE 3
CAPITAL CONTRIBUTIONS AND FINANCING.................................2
3.1 Initial Capital Contributions..............................2
3.2 Development Contributions..................................2
3.3 Additional Capital Contributions...........................3
3.4 Return of Capital..........................................3
3.5 Revaluation of Partnership Property........................3
ARTICLE 4
ALLOCATIONS AND DISTRIBUTIONS TO PARTNERS...........................4
4.1 Allocations; Fiscal Year...................................4
4.2 Allocation of Profits, Gains and Losses....................4
(a) Losses............................................4
(b) Profits and Gains.................................4
4.3 Allocation of Tax Items....................................4
4.4 Gain or Loss From Property Contributed to Partnership......4
4.5 Gain or Loss From Revaluation of Property..................4
4.6 Distributions..............................................5
ARTICLE 5
MANAGEMENT OF THE PARTNERSHIP.......................................5
5.1 Management.................................................5
5.2 Executive Manager; Representatives.........................5
5.3 Managing Partner's Duties..................................6
5.4 Major Decisions............................................8
5.5 Replacement of Managing Partner............................9
5.6 Representatives on CDD Board..............................10
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5.7 Tax Matters Partner.......................................10
5.8 Contracts of the Partnership..............................10
5.9 Consents and Approvals....................................10
5.10 Restrictions on Partners..................................10
ARTICLE 6
ACCOUNTING AND TAX MATTERS.........................................10
6.1 Books and Records.........................................10
6.2 Annual Financial Reports..................................11
6.3 Accountants...............................................11
6.4 Bank Accounts.............................................11
ARTICLE 7
RESTRICTIONS ON TRANSFER...........................................11
7.1 General Restrictions......................................11
7.2 Permitted Transfer........................................11
7.3 Partners Bound By Agreement...............................11
7.4 Reciprocal Buy-Sell Procedure.............................12
(a) Reciprocal Buy-Sell..............................12
(b) Election to Withdraw or Cause to Withdraw........12
(c) Buy-Sell Price...................................12
(d) Closing..........................................13
ARTICLE 8
INDEMNIFICATION....................................................14
8.1 Indemnification by a Partner of a Partner.................14
8.2 Reliance..................................................14
8.3 Litigation Instituted by a Third Party....................14
8.4 Covenants of Partners.....................................14
8.5 Indemnification by Partners...............................14
8.6 Indemnification by Partnership............................14
8.7 Failure to Pay............................................15
8.8 Terms of Indemnification..................................15
ARTICLE 9
PAYMENT OF INDEMNIFICATION CONTRIBUTION............................16
9.1 Loan......................................................16
9.2 Interest Rate.............................................16
9.3 Distributions While Loan is Outstanding...................16
9.4 Security Interest.........................................16
ARTICLE 10
TERMINATION, DISSOLUTION AND LIQUIDATION...........................17
10.1 Termination and Dissolution...............................17
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10.2 Method of Liquidation.....................................18
10.3 Reasonable Time for Liquidation...........................19
10.4 Date of Termination.......................................19
ARTICLE 11
MISCELLANEOUS......................................................19
11.1 Insurance.................................................19
11.2 Limited Purpose...........................................19
11.3 Preformation Expenses.....................................19
11.4 Other Activities..........................................19
11.5 Further Assurances........................................20
11.6 Entire Agreement..........................................20
11.7 Assignments...............................................20
11.8 Notices...................................................20
11.9 Binding Effect............................................21
11.10 Headings..................................................21
11.11 Specific Performance......................................21
11.12 Governing Law.............................................21
11.13 Jurisdiction and Venue....................................21
11.14 No Construction Against Draftsmen.........................21
11.15 Severability..............................................21
11.16 Enforcement Costs.........................................22
11.17 Ability to Enter Agreement................................22
11.18 Amendments................................................22
11.19 Creditor Liens............................................22
11.20 Arbitration...............................................22
11.21 Non-Competition Agreement.................................23
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AGREEMENT OF GENERAL PARTNERSHIP
OF
MEADOW POINTE GENERAL PARTNERSHIP
THIS AGREEMENT OF GENERAL PARTNERSHIP (this "Agreement") is made as of
the 3rd day of October, 1999, by and between MEADOW POINTE EAST, LLC, a Delaware
limited liability company ("MEADOW POINTE"), and DEVCO III, L.L.C., a Florida
limited liability company ("Devco"). Meadow Pointe and Devco are hereinafter
collectively referred to as the "Partners" and individually as a "Partner."
RECITALS:
The Partners desire to conduct a business together as general partners
under the laws of the State of Florida.
In consideration of the mutual covenants contained in this Agreement,
and for other good and valuable consideration, the receipt and adequacy of which
is hereby acknowledged, the Partners hereby agree to become partners and form a
general partnership under the Uniform Partnership Act of the State of Florida
(the "Act"), to engage in the business described in this Agreement for the
period and upon the terms and conditions set forth in this Agreement.
ARTICLE 1
ORGANIZATION OF THE PARTNERSHIP
1.1 Formation. The Partners hereby form a partnership under the Act on
the terms and conditions set forth in this Agreement (the "Partnership").
1.2 Name. The business of the Partnership shall be conducted under the
firm name and style of "Meadow Pointe General Partnership." The business and
affairs of the Partnership shall at all times be conducted solely under the name
of the Partnership or under such other names upon which the Partners shall
unanimously agree.
1.3 Business and Purpose. The business and purpose of the Partnership
shall be to:
(a) develop, market and sell the real property located in
Pasco County, Florida and described in Exhibit A attached hereto (the
"Property"), pursuant to the terms and conditions of that certain Agreement for
Development, Sale and Purchase of Unimproved Real Property between Clearwater
Bay Associates, Inc., a Florida corporation ("Seller"), and the Partnership (the
"Purchase Agreement");
(b) do all other things the Partners agree in writing to do in
accordance with the terms of this Agreement; and
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(c) conduct such other activities as may be necessary or
incidental to the foregoing.
Any and all of the foregoing shall be exclusively on and
subject to the terms and conditions set forth in this Agreement. The powers and
purposes of the Partnership hereby granted shall be limited strictly to the
foregoing, all for the production of income and profit, and shall not be
extended by implication or otherwise except by the unanimous written agreement
of the Partners.
1.4 Principal Place of Business. The Partnership's principal place of
business shall be at 00000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx, Xxxxxxx 00000. The
business of the Partnership may be conducted at such other place or places as
may from time to time be selected by the Partners.
ARTICLE 2
TERM OF PARTNERSHIP
2.1 Term. The Partnership term (the "Term") shall commence on the date
hereof and shall continue through the close of business on June 30, 2025, unless
the Partnership is sooner terminated in accordance with Section 10.l herein.
2.2 Partition.
(a) No Partner shall have the right, and each Partner agrees
that it shall not take any action, to withdraw from the Partnership except as
expressly permitted herein, nor to dissolve, terminate, liquidate or petition a
court for the dissolution, termination or liquidation of the Partnership, except
as provided in this Agreement.
(b) No Partner shall take any action to subject any of the
Partnership's assets to the authority of any court of bankruptcy, insolvency,
receivership or similar proceeding, nor shall either Partner have any ownership
interest in or have the right to obtain a judicial partition of any of such
assets.
ARTICLE 3
CAPITAL CONTRIBUTIONS AND FINANCING
3.1 Initial Capital Contributions. Each of Meadow Pointe and Devco
shall make an initial capital contribution to the Partnership of One Thousand
and No/100 Dollars ($1,000.00) in cash by cashier's check.
3.2 Development Contributions. Meadow Pointe agrees to advance to the
Partnership up to and including (but not in excess of) an aggregate amount equal
to One Million and No/100 Dollars ($1,000,000.00) (the "Advance"). The Advance
(and interest accrued thereon) shall be
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treated as debt of the Partnership and such debt shall bear and accrue interest
at the prime rate (or similar base rate) of Xxxxx Fargo & Company, adjusted from
day to day, plus one (1) point, but not in excess of the maximum rate that may
legally be charged. The Advance (and interest accrued thereon) shall be repaid
to Meadow Pointe pursuant to the terms and conditions set forth in the grid
promissory note attached hereto as Exhibit B. The Advance shall be used to pay
for the following up-front development costs, as necessary:
(a) the modification of an existing Development Regional
Impact and Development Order issued by Pasco County with respect to the
Property;
(b) the establishment of a contingency fund for working
capital; and
(c) the payment of the annual fee, and the repayment of draws,
if any, on a Letter of Credit to be established by Meadow Pointe in favor of
Seller in order to secure the payment of (I) assessments on any Community
Development District Series A Bonds on the Property for a period of one year
after the lapse of the capitalized interest account established by each such
Community Development District (a "CDD") and (ii) certain ad valorem taxes
related to the Property.
3.3 Additional Capital Contributions. Only after funds contributed by
the Partners pursuant to Sections 3.1 and the Advance to the Partnership
pursuant to Section 3.2 above have been exhausted shall the Partners be required
to make additional capital contributions. If, subject to the foregoing sentence,
the General Partners determine that additional funds are required to carry out
the purpose of the Partnership in accordance with this Agreement, each Partner
shall be required to contribute one-half (1/2) of the additional funds required
in the form of an additional capital contribution within ninety (90) days of
receiving written notice of such determination.
3.4 Return of Capital. No Partner shall be entitled to receive interest
on its Capital Account or on its capital contributions. Except as otherwise
provided herein, no Partner shall have the right to demand or to receive the
return of all or any part of its Capital Account or its capital contributions
from the Partnership.
3.5 Revaluation of Partnership Property. Upon (a) the admission of any
Partner to the Partnership, (b) the liquidation of a Partner's interest in the
Partnership, (c) the making of any additional capital contributions or partial
withdrawals by a Partner which changes the Partner's relative percentage
interest in the Partnership (other than a de minimus amount) as determined by
reference to the relative balances in the Partner's Capital Accounts, or (d)
immediately before liquidation of the Partnership, all the property of the
Partnership shall be revalued at its fair market value as determined by the
General Partners, and the Partners' Capital Accounts shall be adjusted to
reflect the manner in which the unrealized income, gain, loss or deduction
inherent in such property (that has not been reflected in adjustments to the
Partners' Capital Accounts previously) would be allocated among the Partners if
the property were sold at its fair market value on the valuation date.
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ARTICLE 4
ALLOCATIONS AND DISTRIBUTIONS TO PARTNERS
4.1 Allocations; Fiscal Year. The profits, gains and losses of the
Partnership shall be determined for each calendar or fiscal year of the
Partnership in accordance with the books of the Partnership (within the meaning
of Regulation ss.1.704-1(b)(2)(iv)(g)) and the method of accounting selected by
the Partners. "Profits" and "gains" or "losses" as used herein include each item
of Partnership income, gain, loss and deduction determined in accordance with
the books of the Partnership. The fiscal year of the Partnership shall end on
December 31.
4.2 Allocation of Profits, Gains and Losses. The profits, gains
or losses of the Partnership shall be allocated as follows:
(a) Losses. Losses for any year shall be allocated:
(I) first, to the Partners up to the positive
balance of their Capital Accounts, ratably in accordance with the positive
balances of their Capital Accounts; and
(ii) next, to the Partners, ratably in accordance
with the respective basis of each Partner of its interest in the Partnership.
(b) Profits and Gains. Any profits or gains of the Partnership
for any year shall be allocated as follows:
(I) first, to any Partner previously allocated
losses under Section 4.2(a) hereof, to the extent of such losses (reduced by
allocations under this clause for all prior years), ratably and in inverse
order to the manner in which such losses were allocated; and
(ii) thereafter, 50% to Meadow Pointe and 50% to
Devco.
4.3 Allocation of Tax Items. After the application of Sections 4.4 and
4.5, the items of income, gain, loss and deduction, for federal and state income
tax purposes, shall be allocated among the Partners in proportion to the
corresponding "book" items in Section 4.2.
4.4 Gain or Loss From Property Contributed to Partnership. In
accordance with Regulation ss.704(c) of the Code, income, gain, loss and
deduction with respect to any property contributed to the capital of the
Partnership by a Partner shall, solely for tax purposes, be allocated among the
Partners so as to take account of any variation between the adjusted basis of
such property to the Partnership for federal income tax purposes and its fair
market value at the time of contribution.
4.5 Gain or Loss From Revaluation of Property. Allocations of income,
gain, loss and deduction with respect to property which has been adjusted on the
books of the Partnership to fair market value pursuant to Section 3.5 shall,
following such adjustment, take account of any variation
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between the adjusted basis of such property for federal income tax purposes and
its value on the Partnership's books in the same manner as under ss.704(c) of
the Code.
4.6 Distributions. Distributions of available cash flow shall be made
to the Partners at such time as the Partners may, from time to time, determine;
provided, however, that to the extent there is available cash flow,
distributions shall be made to the Partners at least annually in an amount equal
to such Partner's federal income tax liability attributable to ownership of an
interest in the Partnership, as if each Partner were subject to income tax at
the highest marginal rate set forth in Section 1 of the Code, which is currently
39.6%. The balance of available cash flow, if any, shall be distributed 50% to
Meadow Pointe and 50% to Devco. As used in this Section 4.6, "available cash
flow" means all of the Partnership's gross cash proceeds from any source less
the portion thereof required to pay any and all outstanding and unpaid
Partnership debt (including any Advance (and accrued and unpaid interest
thereon) pursuant to Section 3.2 herein) and to pay or establish reserves for
ordinary and necessary expenses and fees and capital improvements, replacements
and contingencies, all as reasonably determined by the Partners. Available cash
flow shall not be reduced by depreciation, amortization or other similar
non-cash allowances, and shall be increased by any reductions in reserve which,
when previously established, reduced available cash flow. Notwithstanding
anything to the contrary contained herein, until the Advance (and any accrued
and unpaid interest thereon) is repaid in full, the Partners shall not make any
distributions pursuant to this Section 4.6.
ARTICLE 5
MANAGEMENT OF THE PARTNERSHIP
5.1 Management. The Partnership shall have a managing partner who shall
have the authority and responsibility to manage the day-to-day business and
affairs of the Partnership (the "Managing Partner"). Subject to Section 5.5
herein, the Partners hereby appoint Devco as the Managing Partner of the
Partnership. Subject to Section 5.4 herein, the Managing Partner shall have the
power, authority and discretion to take action for and on behalf of the
Partnership. All decisions, elections and actions taken by the Managing Partner
for and on behalf of the Partnership shall be final and binding on the other
Partner, subject to the consent of both Partners as to Major Decisions. Within
the scope of its authority, the Managing Partner shall have the right to execute
any and all documents and such execution shall be binding upon the Partnership
and the other Partner.
5.2 Executive Manager; Representatives. Notwithstanding anything herein
to the contrary, each of the Partners hereby acknowledges and agrees that Xxxxxx
X. Xxxx shall be primarily responsible for, and shall devote the amount of time
reasonably necessary to, the performance of Devco's obligations as the Managing
Partner under Section 5.1 herein (the "Executive Manager") and hereby authorizes
the Executive Manager to execute any and all documents on behalf of the
Partnership within the scope of his authority, which documents shall be binding
upon the Partnership and both Partners. The Partners shall cause the Partnership
to enter into a management agreement with Devco and Xxxxxx X. Xxxx on terms
acceptable to the Partners
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to provide for, among other things, an initial budget and the payment of a
management fee to Devco (the "Management Agreement"), a copy of which is
attached hereto as Exhibit C.
5.3 Managing Partner's Duties. The Managing Partner shall implement or
cause to be implemented all decisions approved by the Partners and shall conduct
or cause to be conducted the ordinary and usual business and affairs of the
Partnership in accordance with and as limited by this Agreement, including the
following:
(a) protect all interests of the Partnership;
(b) maintain, or cause to be maintained, in accordance with
generally accepted accounting principles, applied in a consistent manner, books
and records pertaining to the Partnership's business showing all of its assets
and liabilities, receipts and disbursements, profits and losses, Partners'
capital contributions, distributions and Capital Accounts and all transactions
entered into by the Partnership;
(c) prepare, or cause to be prepared, and deliver to each of
the Partners within fifteen (15) days of the end of each month, a balance sheet
and income statement compared to the budget set forth in the Development Plan
and Budget for such month and the year-to-date;
(d) within thirty (30) days after the date of this Agreement,
the Managing Partner shall deliver the Development Plan and Budget, a form of
which is attached hereto as Exhibit D, to Meadow Pointe for its approval. The
Managing Partner shall use commercially reasonable efforts to implement the
Development Plan and Budget and each subsequently approved Development Plan and
Budget (each of which may be amended from time to time pursuant to Section
5.4(j) herein) in accordance with the terms thereof;
(e) within sixty (60) days after the end of each fiscal year,
the Managing Partner shall prepare or cause the independent accounting firm
approved by the Partners to prepare and deliver to each Partner a report setting
forth in sufficient detail all such information and data with respect to
business transactions affected by or involving the Partnership during such
fiscal year as shall enable the Partnership and the Partners to prepare their
state, federal and local income tax returns in accordance with the laws, rules
and regulations then prevailing (including a balance sheet, income statement,
changes in cash positions and capital accounts, and comparison of actual results
to budget). The Managing Partner shall also prepare or cause such independent
accountants to prepare Federal, state and local tax returns required of the
Partnership and shall file the same on or before the due date (or an extension
thereof) and shall pay any taxes required to be paid by the Partnership;
(f) maintain all funds of the Partnership in the name of the
Partnership in an account in a bank or banks located in Pasco County, Florida,
approved by the Partners;
(g) make distributions periodically to the Partners in
accordance with Sections 4.6 and 5.4(k) herein;
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(h) undertake such actions as are necessary or desirable in
order that the Partnership promptly complies with all material present and
future laws, ordinances, orders, rules, regulations and requirements of all
governmental authorities having jurisdiction, which may be applicable to the
Partnership and the operations and management thereof;
(I) perform other obligations provided elsewhere in this
Agreement to be performed by the Managing Partner;
(j) subject to Section 5.4(n) herein, engage, at the
Partnership's expense, a firm of independent certified public accountants to
audit the Partnership's financial statements and to provide other services to
the Partnership;
(k) cause Seller to submit the Property to new Community
Development Districts having geographical boundaries established by the
Partnership;
(l) coordinate the acquisition of the Property;
(m) apply for, conduct negotiations for, and seek to obtain in
Seller's name all permits (including, but not limited to, an amendment to the
existing Development Order ("DO"), the existing Development of Regional Impact
("DRI") and the existing Master Planned Unit Development Approval ("PUD") with
respect to the Property, and all governmental, quasi-governmental and utility
permits, licenses and approvals relating to or required in connection with the
development, use, marketing or sale of all or any portion of the Property in
accordance with the Site Development Plan attached hereto as Exhibit E
(collectively, the "Permits");
(n) negotiate with residential builders and other parties for
the sale of single family residential lots on the Property and any of the
Property designated "commercial" on the amended DO and close all such sales;
(o) monitor, advise Meadow Pointe and its representatives with
respect to, and use its best efforts to take all actions necessary to insure
that all Permits (including, but not limited to, the DO, the PUD and the DRI)
remain effective and in good standing, and that the development, use,
operation, marketing, and sale of the Property is in accordance with the Permits
(including, but not limited to, the DO, the PUD and the DRI) and other
applicable governmental laws, ordinances, rules, regulations, and requirements;
(p) consult with Meadow Pointe from time to time concerning
possible changes to the DO, the PUD, and the DRI that are necessary or desirable
to facilitate the development, use, operation, marketing, and sale of the
Property in accordance with the Development Plan and Budget and, if approved by
Meadow Pointe in writing, apply for, conduct negotiations for, and seek to
obtain all such approved changes to the DO, the PUD and the DRI;
(q) use its best efforts to cause the Property to be
development to be finished in accordance with the Development Plan and Budget
and the Permits, supervise and coordinate the development of the Property in a
manner that is consistent with good business practices required of
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an owner of such a project, file notices of commencement, and furnish Meadow
Pointe monthly, or more often as Meadow Pointe may reasonably require, written
progress reports disclosing in reasonable detail the status of the development,
including receipts, disbursements, construction costs, current cash requirements
and available invoice copies;
(r) inspect the Property as often as necessary and at regular
intervals so as to be kept informed as to the stage of development and condition
of the Property and the quality of the work being performed; and
(s) if deemed advisable by the Partners, coordinate and
supervise the extension of the existing CDD II on the eastern portion of Meadow
Pointe to include a portion of the Property, which extension thereof shall have
the geographic boundaries agreed upon by both Partners.
Both Partners hereby acknowledge that affiliates of the Partners are currently
developing a master planned community adjacent to the Property which is from
time to time referred to herein as "Meadow Pointe Property."
5.4 Major Decisions. The following decisions or courses of actions are
deemed to be "Major Decisions" in the conduct of the business and affairs of the
Partnership, each of which require the prior written consent of both Partners
before the Managing Partner (or the Executive Manager) can take action on any
such Major Decision:
(a) decisions with respect to purchasing and developing (I)
that certain tract of land known to the Partners as the "Xxxxxx Xxxxxxx
Property" consisting of approximately 118 acres and which is located south of
Meadow Pointe Property and the Property and (ii) any portion of that certain
tract of land known to the Partners as the "Xxxxxx Ranch";
(b) merge with any Person;
(c) approve or amend the Site Development Plan attached hereto
as Exhibit E;
(d) enter into any agreement which will impose material
restrictions on the manner in which the Partnership conducts its business and
affairs;
(e) the purchase price of the Property;
(f) any other decision or course of action which by any
provision of this Agreement expressly is required to be approved by the
Partners;
(g) borrow or commit to borrow any material amount of
money in the name of the Partnership;
(h) except as set forth herein, dissolve, liquidate or
terminate the Partnership;
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(I) require the Partners to make additional capital
contributions pursuant to Section 3.3 herein;
(j) approve or amend each Development Plan and Budget or
approve expenditures in excess of any line-item budgeted for therein;
(k) approve any distribution(s) of available cash flow;
(l) incur any liens on Partnership property;
(m) except as otherwise provided for herein, admit new
partners;
(n) except as otherwise provided for herein, select and retain
legal counsel and other professionals to provide services to the Partnership;
(o) commence and make decisions with respect to legal actions
to enforce or defend the rights of the Partnership not in the ordinary course of
business;
(p) enter into agreements with Partners or affiliates of the
Partners to provide goods, property, or services to the Partnership;
(q) arrange and approve any investment of the
Partnership's capital;
(r) alter the Partnership's business and purpose;
(s) approve all non-CDD expenditures;
(t) amend this Agreement;
(u) amend or modify the Management Agreement; or
(v) take any other action which requires the consent of all
Partners under this Agreement.
5.5 Replacement of Managing Partner. In the event that the Managing
Partner (a) is an insolvent Partner, (b) ceases to be a Partner of the
Partnership, (c) is willfully or grossly negligent in the management of the
business and affairs of the Partnership, or (d) breaches a fiduciary obligation
to the other Partner, then upon any such event and written notice from Meadow
Pointe to the Managing Partner and the failure of the Managing Partner to cure
such event within ten (10) business days, Meadow Pointe shall become the new
Managing Partner. Upon the replacement of the Managing Partner with a new
Managing Partner, the Partners shall execute such instruments as shall be
reasonably necessary to evidence such replacement and if any instrument has been
recorded evidencing the authority of the previous Managing Partner, such
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instrument shall be modified of record to evidence the replacement of the
previous Managing Partner and selection of the new Managing Partner.
5.6 Representatives on CDD Board. Each of the Partners acknowledges and
agrees that with respect to, and at all times after the formation of, each CDD
formed by Seller relating to the Property, pursuant to Chapter 190, Florida
Statutes, as amended, for the purpose of providing funds for the construction
and acquisition of certain improvements on the Property, Meadow Pointe shall be
entitled to nominate a majority of the Partnership's representatives (each, a
"Representative") on each such CDD Board and Devco shall be entitled to nominate
the Partnership's other Representatives on each such CDD Board. Each
Representative shall have the power and authority to serve as a Representative
on behalf of the Partner who appointed such Representative unless and until such
Partner designates in writing a new Representative. In no event may a
Representative delegate his decision-making authority to any other Person except
another Representative. Each Partner hereby ratifies and affirms any and all
decisions and actions taken by its respective Representatives with respect to
the CDD Board to which such Representative was nominated.
5.7 Tax Matters Partner. Meadow Pointe shall be the "tax matters
partner" of the Partnership as defined in Section 6231 of the Code and shall
have all of the powers and duties expressly conferred on the tax matters partner
by the Code. Meadow Pointe shall advise and consult with Devco with respect to
any tax matters prior to acting upon such matters.
5.8 Contracts of the Partnership. All contracts on behalf of the
Partnership shall be made in the name of the Partnership. Except as otherwise
agreed to by the Partners, no contract shall be made on behalf of the
Partnership solely in the name of a Partner without disclosure to third parties
of the existence of the Partnership.
5.9 Consents and Approvals. In any instance under this Agreement in
which the consent or approval of a Partner to any proposed action is required,
such consent or approval shall be in the Partner's sole and absolute discretion
unless otherwise set forth herein. If any Partner shall fail to respond within
fifteen (15) days after receipt of a written request for response, such Partner
shall be deemed to have consented to such request.
5.10 Restrictions on Partners. Unless otherwise authorized pursuant to
this Agreement, no Partner shall have the power or authority to bind the
Partnership in any contract, agreement, promise or undertaking or to act for or
on behalf of the Partnership in any respect whatsoever, nor shall any Partner
take or cause to be taken any action which will in any way impede the other
Partners or the Partnership from carrying out its responsibilities under this
Agreement.
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ARTICLE 6
ACCOUNTING AND TAX MATTERS
6.1 Books and Records. The books and records and all files of the
Partnership shall be kept at its principal office. Each Partner, its
accountants, attorneys and other professional representatives shall, during
regular business hours, have free access to the Partnership's books and records,
upon reasonable prior notice, for the purpose of inspecting or copying the same.
The Managing Partner shall cause the Partnership to retain copies of the records
of the Partnership for a fiscal year for a period of six (6) years after that
fiscal year.
6.2 Annual Financial Reports. Audited annual financial statements
(consisting of a year-end balance sheet and the related statements of income,
capital and cash flows for the Fiscal Year) shall be prepared and copies thereof
shall be delivered to each Partner within sixty (60) days of the end of each
Fiscal Year.
6.3 Accountants. Pursuant to Section 5.4(n) herein, the Partners agree
that Xxxxxx & Xxxxxx Co., P.A., located at 000 Xxxxxx Xxxxxx, Xxxxx 000, Xxxx
Xxxxx, Xxxxxxx 00000, Attn: Xxxx Xxxxxx, shall be the Partnership's accountants
and shall prepare the Partnership's financial statements, tax returns and other
tax related filings.
6.4 Bank Accounts. Each Partner and the Executive Manager shall have
the authority to sign checks for the payment of Partnership debts and
obligations incurred in the ordinary course of business and expressly included
in the Development Plan and Budget; provided, however, that any check for an
amount in excess of Ten Thousand and No/100 Dollars ($10,000) shall require the
joint signature of both Partners.
ARTICLE 7
RESTRICTIONS ON TRANSFER
7.1 General Restrictions. Except as otherwise expressly provided in
this Agreement, no Partner shall sell, transfer, pledge, assign, hypothecate,
encumber, or in any other manner dispose of any portion or all of its interest
in the Partnership without the prior written consent of the other Partner;
provided, however, that each Partner may transfer all or a portion of its
interest in the Partnership to an affiliate of such Partner. A Partner may
withhold such consent for any reason or for no reason. Any unauthorized attempt
to do any of the foregoing shall be null and void.
7.2 Permitted Transfer. If Meadow Pointe or any of its affiliates
enters into an agreement to sell all or substantially all of its/their assets, a
merger, a consolidation or any other business combination with a third party,
Meadow Pointe shall have the right to assign all or any portion of its interest
in the Partnership (including any of its payment or performance obligations) to
a third party upon thirty (30) days prior written notice to Devco.
11
7.3 Partners Bound By Agreement. Any person or entity acquiring an
interest in the Partnership shall be bound by all of the terms and conditions of
this Agreement to the same extent as its transferor and shall confirm the same,
upon request, by signing a counterpart of this Agreement.
7.4 Reciprocal Buy-Sell Procedure.
(a) Reciprocal Buy-Sell. If (I) the Partners are unable to
reach agreement as to a Major Decision after ten (10) business days after either
Partner notifies the other Partner in writing that an impasse has been reached
on a Major Decision, or (ii) except as set forth in Section 7.2, either Partner,
after January 1, 2003, desires to sell its interest in the Partnership at any
time, either Partner may institute the following reciprocal buy-sell procedure
(hereinafter referred to as the "Buy-Sell Procedure") by giving written notice
(hereinafter referred to as the "Buy-Sell Notice") to the other Partner. The
Partner giving a Buy-Sell Notice shall be referred to hereinafter in this
Section 7.4 as the "Offeror" and the Partner receiving such notice shall be
referred to hereinafter as the "Offeree." To be effective, the Buy-Sell Notice
shall be in writing and shall state an amount in U.S. cash (hereinafter referred
to as the "Buy-Sell Value"), as determined in the sole and absolute discretion
of the Offeror, for use in determining Buy-Sell Price pursuant to Section 7.4(c)
hereof (hereinafter referred to as the "Buy-Sell Price"). The Buy-Sell Notice
shall constitute an irrevocable offer by the Offeror either to (I) withdraw from
the Partnership in exchange for the Buy-Sell Price, as hereinafter defined, or
(ii) permit the withdrawal of the Offeree from the Partnership in exchange for
the Buy- Sell Price.
(b) Election to Withdraw or Cause to Withdraw. The Offeree
shall elect one of the following options: (I) to withdraw and to calculate the
Buy-Sell Price pursuant to Section 7.4(c) herein based upon the Buy-Sell Value
set forth in the Buy-Sell Notice; or (ii) to cause the Offeror to withdraw from
the Partnership and to pay the Offeror a Buy-Sell Price pursuant to Section
7.4(c) hereof based upon the Buy-Sell Value set forth in the Buy-Sell Notice.
The Offeree shall give notice of such election (hereinafter referred to as a
"Notice of Election") to the Offeror prior to the thirtieth (30th) day following
the date upon which the Buy-Sell Notice is given. The failure by the Offeree to
give an effective and timely Notice of Election shall conclusively be deemed an
election by the Offeree to withdraw from the Partnership for a Buy-Sell Price to
be calculated pursuant to Section 7.4(c) hereof based upon the Buy-Sell Value
set forth in the Buy-Sell Notice, and the date of the Notice of Election with
respect to such deemed election shall be the thirtieth (30th) day following the
giving of the Buy-Sell Notice. The party designated in accordance with the
provisions of this Section 7.4(b) to withdraw from the Partnership is
hereinafter collectively referred to as the "Withdrawing Party" and the other
party is hereinafter referred to as the "Continuing Party."
(c) Buy-Sell Price. The Buy-Sell Price payable to the
Withdrawing Party shall be an amount in cash (U.S.) equal to the amount of cash
which such Withdrawing Party would have received on the Buy-Sell Closing Date
(as hereinafter defined) if the Partnership had distributed an amount equal to
the net amount available for distribution by the Partnership following a sale of
all of the assets of the Partnership for the Buy-Sell Value as stated in the
Buy-Sell Notice, after the satisfaction of all Partnership liabilities,
including, without limitation, loans made pursuant to Section 3.3 herein (less
the aggregate amount of any distributions distributed to the Withdrawing
12
Party between the date of the Buy-Sell Notice and the Buy-Sell Closing Date) to
the Partners in liquidation of the Partnership in the order and priority set
forth in Section 10.2 hereof, assuming the prior allocation of any gain or loss
which would have been recognized by the Partnership in connection with any sale
of the Partnership assets for such amount; provided, however, that if the
Withdrawing Party is indebted to the Partnership or the Continuing Party on the
date of the Buy-Sell Notice, the Buy-Sell Price shall be reduced by the amount,
including accrued and unpaid interest, owed to the Partnership or the Continuing
Party by such Withdrawing Party on the Buy-Sell Closing Date.
(d) Closing.
(I) Effective as of the Buy-Sell Closing Date,
the Withdrawing Party shall cease to be a Partner of the Partnership and the
provisions of this Section 7.4(d) shall apply. Subsequent to the Buy-Sell
Closing Date, the Withdrawing Party shall have no further interest in the
Partnership's capital, profits, losses, gains or distributions. Within one
hundred and twenty (120) days after the date of the Notice of Election (the
"Buy-Sell Closing Date"), the Buy-Sell Price shall be paid to the Withdrawing
Party by U.S. federal funds, and the Partners shall execute and deliver an
amendment to this Agreement, reflecting the withdrawal of the Withdrawing
Party from the Partnership as of the Buy-Sell Closing Date. On or prior to the
Buy-Sell Closing Date, the Continuing Party shall contribute such amount to
the capital of the Partnership as shall be necessary to enable the Partnership
to pay the Buy-Sell Price to the Withdrawing Party on the Buy-Sell Closing Date.
In the event the Continuing Party should fail to make such required
contribution, or in the event the Partnership should fail to purchase the
Withdrawing Party's interest and pay the full amount of the Buy-Sell Price to
the Withdrawing Party by the Buy-Sell Closing Date, the Continuing Party
shall be in default, the Withdrawing Party shall have the right to proceed
against the Continuing Party at law for damages (notwithstanding any
limitation of liability otherwise contained in the Agreement) or to seek
specific performance of Continuing Party's obligations under this Section 7.4,
and the right to recover all attorneys' fees and costs of litigation incurred in
the enforcement of its rights under this Section 7.4, the Withdrawing Party
shall have no obligation to sell its interest in the Partnership to the
Continuing Party and the Withdrawing Party shall be fully reinstated to all
authority, rights and obligations it held in the Partnership immediately before
the Buy-Sell Closing Date. In the event the Withdrawing Party fails to close the
sale of its interest in the Partnership on the Buy-Sell Closing Date, the
Continuing Party shall have the right to proceed against the Withdrawing Party
at law for damages (notwithstanding any limitation of liability otherwise
contained in this Agreement) or to seek specific performance of Withdrawing
Party's obligations under this Section 7.4, and the right to recover all
attorneys' fees and costs of litigation incurred in the enforcement of its
rights under this Section 7.4.
(ii) Notwithstanding anything herein to the
contrary, if Devco is the Continuing Party under this Section 7.4, Devco
shall, effective as of the Buy-Sell Closing Date, assume all guarantees
of CDDs and deliver written evidence thereof (satisfactory in form and
substance to Meadow Pointe) to Meadow Pointe, and Devco shall deliver to Meadow
Pointe at the Buy-Sell Closing, a general release (satisfactory in form and
substance to Meadow Pointe) in favor of Meadow Pointe with respect to any such
CDD. Meadow Pointe, as the Withdrawing Party, shall
13
terminate any Letter of Credit with respect to the guarantee of any such CDD,
effective as of the Buy-Sell Closing Date.
ARTICLE 8
INDEMNIFICATION
8.1 Indemnification by a Partner of a Partner. Each Partner (herein,
the "Indemnifying Partner") hereby agrees to indemnify and hold each other
Partner and its affiliates, principals, officers, directors, shareholders,
Representatives, agents and employees and the Partnership harmless from and
against any and all liabilities, losses, damages, claims, demands, actions and
rights of action (including reasonable attorneys' and paralegals' fees and
costs, whether suit is instituted or not, and if instituted, whether at the
pretrial, trial or appellate level) which shall or may arise by virtue of
anything done or omitted to be done by the Indemnifying Partner (itself or
through its affiliates, principals, officers, directors, shareholders,
Representatives, agents and employees) outside the scope, or in breach of the
terms of this Agreement or the gross negligence or willful misconduct of such
parties. The Indemnifying Partner shall be notified promptly of the existence of
any such claim, demand, action or right of action and shall be given reasonable
opportunity to participate in the defense thereof.
8.2 Reliance. Each Partner may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, bond, debenture, or other
paper or document reasonably believed by such Partner to be genuine, to have
been signed or presented by the proper party or parties and which is delivered
or given for the benefit of the Partnership.
8.3 Litigation Instituted by a Third Party. If litigation is instituted
by any party not a Partner or an affiliate of any Partner against the
Partnership and/or a Partner (whether while a Partner or after any permitted
withdrawal of a Partner from the Partnership), as a result of the alleged act or
omission of any Partner or the Partnership while acting under or by reason of
this Agreement, the Partnership shall pay all legal fees and/or disbursement of
the Partnership and any Partner pertaining to such litigation.
8.4 Covenants of Partners. Each Partner agrees (a) to pay its debts
punctually and (b) not to knowingly cause or suffer anything to be done whereby
the Partnership's property may be attached or taken in execution and agrees in
the event of a breach of the above to indemnify and hold harmless the
Partnership and the other Partner as an Indemnifying Partner in accordance with
Section 8.1 above.
8.5 Indemnification by Partners. Each Partner hereby agrees to
indemnify the Partnership from and against any and all fees and costs which
shall or may arise relating directly to any tax audit of that Partner's
corporate or individual tax return.
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8.6 Indemnification by Partnership. Except as specifically provided to
the contrary in Sections 8.1, 8.2, 8.3, 8.4 and 8.5 above and for acts of gross
negligence, willful misconduct and fraud, the Partnership shall indemnify and
save harmless the Partners and their affiliates, principals, officers,
directors, shareholders, representatives, agents and employees to the extent
that such other Partner is called upon for any payment, judgment, damage or cost
of any kind arising out of or in connection with this Agreement, including,
without limitation, acts done by such parties in furtherance of the purposes of
the Partnership prior to the date of this Agreement. This indemnification shall
be a cost of the Partnership. Neither the Partnership nor any Partner shall seek
indemnification or contribution from the other Partner for any matter arising
out of the matters set forth in this Section 8.6, it being the understanding of
the Partnership and the Partners that, except for gross negligence, wilful
misconduct and fraud, these items are released and discharged and the
Partnership shall be solely responsible for these items.
8.7 Failure to Pay. If any Partner shall fail to make any payment
required pursuant to this Section (such Partner being hereinafter sometimes
called the "Noncontributing Partner"), the other Partner, as its sole remedy,
after an additional period of fifteen (15) days after giving notice to the
Noncontributing Partner and the Noncontributing Partner failing to cure such
default within such time, may (but shall not be required to) individually, or
collectively on an equal basis, contribute on behalf of the Noncontributing
Partner pursuant to Article 9 all or any part of such Partner's indemnification
contribution that should have been made by the Noncontributing Partner.
8.8 Terms of Indemnification. Each indemnity provided for under this
Agreement shall be subject to the following provisions:
(a) The indemnity shall cover the costs and expenses of the
indemnitee, including reasonable attorneys' fees and court costs, related to any
actions, suits or judgments incident to any of the matters covered by such
indemnity.
(b) The indemnitee shall notify the indemnitor of any claim (a
"Notice of Claim") against the indemnitee covered by the indemnity promptly but
in no event later than ten (10) days after the indemnitee has notice of such
claim, but failure to notify the indemnitor shall in no case prejudice the
rights of the indemnitee under this Agreement unless the indemnitor shall be
prejudiced by such failure and then only to the extent the indemnitor shall be
prejudiced by such failure. The Notice of Claim shall specify the nature and
details of such facts and circumstances (including any amount claimed) which may
give rise to indemnification under this Article 8. If the claim or demand set
forth in the Notice of Claim relates to a claim or demand asserted by a thirty
party (a "Third Party Claim"), the indemnitor shall have the right to employ
counsel acceptable to the indemnitee to defend any such claim or demand, and the
indemnitee shall have the right to participate in the defense of any such Third
Party Claim. The indemnitor shall notify the indemnitee, in writing, within
fifteen (15) days after the Date of the Notice of Claim (as hereinafter
defined), of the indemnitor's decision to defend in good faith any Third Party
Claim. So long as the indemnitor is defending in good faith any such Third Party
Claim, the indemnitee shall not settle or compromise such Third Party Claim. The
indemnitee shall make available to the indemnitor or its representatives all
records and other materials reasonably required by them for their use in
contesting any Third
15
Party Claim and shall cooperate with the indemnitor in connection therewith. If
the indemnitor does not so elect to defend any such Third Party Claim, the
indemnitee shall have no obligation to do so and the indemnitee may settle such
liability, and the liability of the indemnitor hereunder shall be conclusively
established by such settlement, which amount of such liability shall include
both the settlement consideration and the reasonable costs and expenses,
including attorneys' fees, incurred by the indemnitee in effecting such
settlement.
(c) Within thirty (30) days after either the indemnitor and
the indemnitee reach agreement on the amount of any indemnification obligation
of the indemnitor, or any such indemnification obligation is otherwise
determined (in either case, the "Indemnification Amount"), the indemnitee shall
demand payment of the Indemnification Amount from the indemnitor, who shall pay
such amount due in cash within thirty (30) days of the indemnitee's demand
therefor. With respect to any Indemnification Amount or portion thereof not paid
by the indemnitor within such thirty (30) day period, the indemnitee may, at his
option, from time to time, in addition to any other remedies or rights he may
have with respect to the collection thereof, cause the indemnitor to offset the
amount of any Indemnification Amount due the indemnitee from the indemnitor
hereunder against any agreements with the indemnified party. The term "Date of
the Notice of Claim" as used herein shall mean the date the notice is deemed
delivered pursuant to Section 11.8 herein.
(d) No indemnity hereunder shall be construed to limit or
diminish the coverage of any indemnitee under any insurance obtained by the
Company. Payment shall not be a condition precedent to any indemnification
provided in this Agreement.
ARTICLE 9
PAYMENT OF INDEMNIFICATION CONTRIBUTION
9.1 Loan. If a Partner makes all or any part of an indemnification
contribution made pursuant to Article 8 which such Partner was required to make,
the contribution of such Partner shall be treated as a loan to the other Partner
(the "Loan").
9.2 Interest Rate. The Loan shall bear interest at a rate per annum
equal to the greater of eighteen percent (18%) or the highest legal rate of
interest permitted by law. The Loan shall be due and payable on or before the
date of the Partnership's termination or dissolution, but may be prepaid at any
time without penalty. Any partial payment shall be applied first in reduction of
the balance of interest and then of principal due.
9.3 Distributions While Loan is Outstanding. If the Partnership makes
any distributions while there is a balance due under the Loan, including
applicable interest, the Partnership shall pay to the contributing Partner the
sums which would otherwise be distributed to the Noncontributing Partner (up to
the full balance due, including applicable interest), and such sums shall be
applied first in reduction of the balance of interest and then of principal due.
16
9.4 Security Interest. Each Partner hereby grants to the other Partner
a security interest in its interest in the Partnership as security for the
repayment of any advance made by a contributing Partner pursuant to this
Section. This Partnership Agreement shall be the Security Agreement relative to
such security interest. While the Loan is outstanding, the noncontributing
Partner will execute such further documents to evidence or perfect the aforesaid
security interest as the contributing Partner may reasonably request. If the
noncontributing Partner fails to deliver to the contributing Partner any
document required by this Section within ten (10) days after demand, the
contributing Partner shall have and is hereby irrevocably granted the power and
authority, coupled with an interest, to execute any such financing statements or
other documents on behalf of the noncontributing Partner as its
attorney-in-fact.
ARTICLE 10
TERMINATION, DISSOLUTION AND LIQUIDATION
10.1 Termination and Dissolution. The Partnership shall be terminated
and dissolved upon the occurrence of any of the following events, unless the
Partners agree in writing, within ten (10) days after the occurrence of any such
event, to continue the business of the Partnership:
(a) expiration of the term of the Partnership;
(b) the Partners agree in writing to dissolve the
Partnership and wind up its affairs;
(c) entry of a decree of judicial dissolution of the
Partnership pursuant to the provisions of the Act;
(d) a final and nonappealable judgment is entered by a court
of competent jurisdiction ruling that a Partner is Bankrupt or insolvent, or a
final and nonappealable order for relief is entered by a court with appropriate
jurisdiction against a Partner, in each case under any federal or state
Bankruptcy or insolvency laws as now or hereafter in effect, unless prior to the
entry of such order or judgment the remaining Partner agrees in writing to
continue the business of the Partnership and to the appointment, effective as of
a date prior to the date of such order or judgment, of a substitute partner;
(e) the occurrence of any event which makes it unlawful for
the business of the Partnership to be carried on or for the Partners to carry on
the business of the Partnership;
(f) either Partner fails to perform or comply with any of its
material obligations hereunder at the time or times and in the manner required
under this Agreement, provided that the other Partner gives the non-performing
Partner thirty (30) days' prior written notice of such default or breach and the
non-performing Partner fails to commence curing any default or breach within
such
17
30-day period or after commencing the same fails to pursue the curing of such
default with due diligence;
(g) Xxxxxx X. Xxxx is not the Executive Manager of the
Partnership for any reason and the Partners are unable to agree on a replacement
for him within thirty (30) days after his termination is effective;
(h) subject to Section 5.4(j) herein, the amounts expended by
the Partnership exceed the Development Plan and Budget;
(I) the Partnership fails to sell and close lots according to
the schedule attached hereto as Exhibit F, provided that such delay is not the
direct result of governmental action or inaction beyond the control of the
Partners or acts of God over which the Partnership has no reasonable control;
(j) all portions of the Property have been sold;
(k) after using its best efforts, the Managing Partner is
unable to cause Seller to establish one (1) or more additional CDDs or to obtain
CDD Series A Bonds and Series B Bonds in amounts deemed by both Partners to be
sufficient and on terms and conditions satisfactory to the Partners to be able
to finance infrastructure on the Property;
(l) any other act requiring dissolution of the Partnership
pursuant to the Act, as such Act may be amended from time to time;
(m) after using its best efforts, the Managing Partner is
unable to cause Seller to amend the existing DO, the existing DRI or the
existing PUD; or
(n) if the Purchase Agreement is terminated for any reason.
10.2 Method of Liquidation. Immediately before liquidation of the
Partnership, the Partnership's property shall be revalued at its fair market
value as determined by the Partnership's accountants, and the Partners' Capital
Accounts shall be appropriately adjusted to reflect such revaluation. If any
Partner has a deficit balance in its Capital Account after adjustment to reflect
such revaluation, such Partner shall, before the later of the end of the
Partnership's taxable year or the expiration of ninety (90) days following the
liquidation, contribute to the Partnership the amount necessary to eliminate
such deficit balance, and such amount shall be used to satisfy creditors' claims
or for distribution to other Partners in satisfaction of their Capital Account
balances. Upon the termination and liquidation of the Partnership, the
Partnership's assets shall be applied and distributed as follows:
(a) first, to satisfy the liabilities and obligations of
the Partnership, other than liabilities or obligations to the Partners;
18
(b) next, to the establishment of any reserves deemed
necessary by the Partners for the payment of any contingent or unforseen
liabilities or obligations of the Partnership and, at the expiration of such
period as the Partners deem advisable, the balance of such reserves shall be
applied and distributed in the manner hereinafter provided in this Section 10.2;
then
(c) next, to satisfy the liabilities and obligations of the
Partnership to any Partner (including, without limitation, an Advance made
pursuant to Section 3.2 herein); and
(d) finally, to the Partners in accordance with the positive
balances of their respective Capital Accounts.
10.3 Reasonable Time for Liquidation. A reasonable time shall be
allowed for the orderly liquidation of the Partnership's assets pursuant to
Section 10.2 hereof in order to reduce the risk of loss which might be attendant
upon such a liquidation.
10.4 Date of Termination. The Partnership shall be terminated when all
of its assets shall have been applied and distributed in accordance with the
provisions of Section 10.2 hereof. The establishment of any reserves in
accordance with the provisions of Section 10.2 hereof shall not have the effect
of extending the term of the Partnership, but any such reserves shall be
distributed in the manner provided in Section 10.2 hereof upon expiration of the
period of such reserve.
ARTICLE 11
MISCELLANEOUS
11.1 Insurance. The Partnership shall carry and maintain in force such
levels of insurance as deemed appropriate by the Partners and in accordance with
the Development Plan and Budget, the premiums for which shall be a cost and
expense in connection with the operation of the Partnership.
11.2 Limited Purpose. Nothing in this Agreement shall be deemed, held
or construed as creating an association, general partnership or joint enterprise
among the Partners for any purpose other than that specifically set forth
herein.
11.3 Preformation Expenses. Each of the Partners will pay its own
attorneys' fees and all other costs incurred by it in connection with the
negotiation of this Agreement.
11.4 Other Activities. Each Partner and any of its affiliates,
principals, officers, directors, shareholders, agents and employees, or any
person or entity holding a legal or beneficial interest in a Partner may engage
in or possess an interest in other business ventures of every nature and
description, independently or with others. The Partners represent and warrant to
each other that their engagement in any permitted business venture will not in
any way interfere with or limit their ability to adequately perform each of
their duties, obligations and responsibilities under this Agreement. Neither the
Partnership nor the Partners (not engaging in such permitted activities) shall
have any right by virtue of this Agreement to enter into or participate in such
other Partners' permitted
19
independent ventures or to share the income or profits derived therefrom or any
other rights therein, and each of the Partners hereby waives whatever statutory
or other rights to the contrary which it may now or hereafter possess.
11.5 Further Assurances. The Partners hereby agree from time to time to
execute and deliver such further and other transfers, assignments and documents
and do all matters and things which may be convenient or necessary to more
effectively and completely carry out the intentions of this Agreement.
11.6 Entire Agreement. This Agreement represents the entire
understanding and agreement between the Partners with respect to the subject
matter hereof, and supersedes all other negotiations, understandings and
representations (if any) made by and between the Partners.
11.7 Assignments. Except as set forth in Section 7.2 herein, neither
Partner may assign its rights and/or obligations hereunder without the prior
written consent of each other party to this Agreement.
11.8 Notices. All notices and other communications required or
permitted under this Agreement shall be in writing (including facsimile, telex,
telefax and telegraphic communication) and shall be (as elected by the person
giving such notice) hand delivered by messenger or courier service,
telecommunicated, or mailed (airmail if international) by registered or
certified mail (postage prepaid), return receipt requested, addressed to:
With a copy to:
MEADOW POINTE EAST, L.L.C. Xxxxx X. Xxxxxxx, Esq.
c/o BF Enterprises, Inc. Gunster, Yoakley, Xxxxxx-Xxxxx
& Xxxxxxx, P.A.
000 Xxxx Xxxxxx 000 X. Xxxxxxx Xxxxx
Xxxxx 0000 Xxxxx 000-Xxxx
Xxx Xxxxxxxxx, XX 94104 Xxxx Xxxx Xxxxx, XX 00000
Attn: Xxxxx X. Xxxxx, Esq.
Xxxxxx X. Xxxxxxx
Fax: (000) 000-0000
Fax: (000) 000-0000
With a copy to:
DEVCO III, L.L.C Akerman, Senterfitt & Xxxxxx
00000 Xxxxx Xxxxxxx Xxxxxx 000 X. Xxxxxx
Xxxxx, Xxxxxxx 00000 Suite 1500
Attn: Xxxxxx X. Xxxx Xxxxx, Xxxxxxx 00000
Fax: (000) 000-0000 Attn: Xxxx X. Xxxxxxx, Esq.
Fax: (000) 000-0000
20
or to such other address as any party may designate by notice complying with the
terms of this Section. Each such notice shall be deemed delivered on: (a) the
date delivered if by personal delivery; (b) the date telecommunicated if by
telegraph; (c) the date of transmission with confirmed answer back if by
facsimile, telex, telefax or other telegraphic method; and (d) the date upon
which the return receipt is signed or delivery is refused or the notice is
designated by the postal authorities as not deliverable, as the case may be, if
mailed.
11.9 Binding Effect. All of the terms and provisions of this Agreement,
whether so expressed or not, shall be binding upon, inure to the benefit of, and
be enforceable by the Partners and their respective legal representatives,
successors and permitted assigns.
11.10 Headings. The headings contained in this Agreement are for
convenience of reference only and shall not limit or otherwise affect in any way
the meaning or interpretation of this Agreement.
11.11 Specific Performance. Each of the Partners acknowledge that the
Partners will be irreparably damaged (and damages at law would be an inadequate
remedy) if this Agreement is not specifically enforced. Therefore, in the event
of a breach or threatened breach by any Partner of any provision of this
Agreement, then the other Partners shall be entitled, in addition to all other
rights or remedies, to injunctions restraining such breach, without being
required to show any actual damage or to post any bond or other security and/or
to a decree for specific performance of the provisions of this Agreement.
11.12 Governing Law. This Agreement and all transactions contemplated
by this Agreement shall be governed by, and construed and enforced in accordance
with, the laws of the State of Florida without regard to principles of conflicts
of laws.
11.13 Jurisdiction and Venue. The Partners acknowledge that a
substantial portion of negotiations, anticipated performance and execution of
this Agreement occurred or shall occur in Palm Beach County, Florida, and that,
therefore, each of the Partners irrevocably and unconditionally (I) agrees that
any suit, action or legal proceeding arising out of or relating to this
Agreement shall be brought in the courts of record of the State of Florida in
Palm Beach County or the District Court of the United States, Southern District
of Florida; (ii) consents to the jurisdiction of each such court in any suit,
action or proceeding; (iii) waives any objection which it may have to the laying
of venue of any suit, action or proceeding in any of such courts; and (iv)
agrees that service of any court paper may be effected on such Partner by mail,
as provided in this Agreement, or in such other manner as may be provided under
applicable laws or court rules in Florida.
11.14 No Construction Against Draftsmen. The Partners acknowledge that
this is a negotiated Agreement, and that in no event shall the terms hereof be
construed against either Partner on the basis that such party, or its counsel,
drafted this Agreement.
11.15 Severability. If any provision of this Agreement or any other
agreement entered into pursuant hereto is contrary to, prohibited by or deemed
invalid under applicable law or regulation,
21
such provision shall be inapplicable and deemed omitted to the extent so
contrary, prohibited or invalid, but the remainder hereof shall not be
invalidated thereby and shall be given full force and effect so far as possible.
If any provision of this Agreement may be construed in two or more ways, one of
which would render the provision invalid or otherwise voidable or unenforceable
and another of which would render the provision valid and enforceable, such
provision shall have the meaning which renders it valid and enforceable.
11.16 Enforcement Costs. If any legal action or other proceeding is
brought for the enforcement of this Agreement, or because of an alleged dispute,
breach, default or misrepresentation in connection with any provision of this
Agreement, the successful or prevailing party or parties shall be entitled to
recover reasonable attorneys' fees, sales and use taxes, court costs and all
expenses even if not taxable as court costs (including, without limitation, all
such fees, taxes, costs and expenses incident to arbitration, appellate,
bankruptcy and post-judgment proceedings), incurred in that action or
proceeding, in addition to any other relief to which such party or parties may
be entitled. Attorneys' fees shall include, without limitation, paralegal' fees,
investigative fees, administrative costs, sales and use taxes and all other
charges billed by the attorney to the prevailing party.
11.17 Ability to Enter Agreement. Each Partner represents and warrants
that it is duly organized, validly existing and in good standing under the laws
of the state of its organization, with all requisite corporate power and
authority to enter into this Agreement and to perform its obligations hereunder.
11.18 Amendments. The provisions of this Agreement may not be amended,
supplemented, waived or changed orally, but only by a writing signed by the
party as to whom enforcement of any such amendment, supplement, waiver or
modification is sought and making specific reference to this Agreement.
11.19 Creditor Liens. Creditors of individual Partners shall solely be
entitled to a charging lien on Partnership property and shall not be entitled to
own Partnership property.
11.20 Arbitration. Notwithstanding anything to the contrary in this
Agreement, all claims for monetary damages and disputes relating in any way to
the performance, interpretation, validity, or breach of this Agreement shall be
referred to final and binding arbitration, before a single arbitrator, under the
commercial arbitration rules of the American Arbitration Association in Pasco
County, Florida. The arbitrator shall be selected by the parties and if the
parties are unable to reach agreement on selection of the arbitrator within
thirty (30) days after the notice of arbitration is served, then the arbitrator
will be selected by the American Arbitration Association. All documents,
materials, and information in the possession of a party to this Agreement and in
any way relevant to the claims or disputes shall be made available to the other
parties for review and copying not later than sixty (60) days after the notice
of arbitration is served. To the extent that a party would be required to make
confidential information available to any other, an agreement or an order shall
be entered in the proceeding protecting the confidentiality of and limiting
access to such information before a party is required to produce such
information. Information produced by a party shall be
22
used exclusively in the arbitration or litigation that may arise, and shall not
otherwise be disclosed. In no event shall a party be entitled to punitive
damages in any arbitration or judicial proceeding and all parties hereby waive
their rights to any punitive damages. In the event an arbitration panel or a
court concludes that the punitive damages waiver contained in the previous
sentence is unenforceable, then the parties agree that the court with subject
matter jurisdiction over the confirmation of the award shall have sole and
exclusive jurisdiction to determine issues of entitlement and amount of punitive
damages. The arbitrator shall NOT have subject matter jurisdiction to decide any
issues relating to the statute of limitations or to any request for injunctive
relief, and the parties hereby stipulate to stay the arbitration proceeding
(without the need of a bond) until any such issues in dispute are resolved.
Judgment upon the award rendered by the arbitrator shall be final, binding and
conclusive upon the parties and their respective administrators, executors,
legal representatives, heirs, successors and permitted assigns, and may be
entered in any court of competent jurisdiction.
11.21 Non-Competition Agreement. Neither Devco, Xxxxxx X. Xxxx nor
Meadow Pointe shall, during the term of this Agreement and for three (3) years
after the occurrence of any event set forth in Sections 7.1, 7.4, 10.1(f),
10.1(g), 10.1(h), 10.1(I), 10.1(k), 10.1(m) or 10.1(n), without the other
parties' written consents, directly or indirectly, enter into an agreement with
any person or entity to provide financing or development or construction
services for lots similar to those on the Property or other multi-family sites
for residential housing (a "Transaction") within four (4) miles of the Property
in Hillsborough or Pasco Counties (the "Service Area"), without first providing
the other parties the opportunity to participate in any such Transaction. In the
event Devco, Xxxxxx X. Xxxx or Meadow Pointe desire to enter into any such
Transaction, then it/he shall promptly provide the other parties with written
notice thereof. The parties shall thereafter have a period of ninety (90) days
following the receipt of such notice within which to agree upon the terms and
conditions of the other parties' participation in the Transaction; provided,
however, that each of Meadow Pointe and Devco (which shall for purposes of this
Section 11.21 include Xxxxxx X. Xxxx) be entitled, but not obligated, to
participate in the Transaction on an equal (50%) basis (economic, ownership or
otherwise). Each of the parties shall use their best efforts to agree upon
commercially reasonable terms and conditions acceptable to the parties to allow
the other parties to participate in any such Transaction. In the event the
parties shall not have agreed upon or consummated such affiliation within such
ninety (90) day period, the party that introduced the Transaction to the other
parties pursuant to this Section 11.21 shall thereafter be permitted to enter
into negotiations with such person or entity and consummate the Transaction. The
parties hereto acknowledge and agree that neither J. Xxxxxx Xxxxxx, Xx., nor J.
Xxxxxx Xxxxxx, Xx., or any entities that they own or control (except Devco),
shall be subject to the terms and conditions of this Section 11.21.
11.22 Confidentiality; Public Announcements.
(a) Each of the Partners shall maintain in confidence, and
will cause their members, directors, officers, employees, agents and advisors to
maintain in confidence, any written, oral or other information obtained in
confidence from the other party in connection with this Agreement and the
transactions contemplated herein, unless (a) such information is already known
to such party or to others not bound by a duty of confidentiality or such
information becomes
23
publicly available through no fault of such party, (b) the use of such
information is necessary or appropriate in making any filing or obtaining any
consent required for the consummation of any transactions contemplated herein,
or (c) the furnishing or use of such information is required by a legal
proceeding or legal requirements.
(b) Any public announcement or similar publicity with respect
to this Agreement or any transaction contemplated hereby (including, without
limitation, any press release) will be issued, if at all, at such time and in
such manner as Meadow Pointe shall determine, in its sole and absolute
discretion, unless required by a legal requirements.
24
The undersigned have duly executed this Agreement as of the day and
year first above written.
MEADOW POINTE EAST, LLC, a Delaware
limited liability company
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President
DEVCO III, L.L.C., a Florida limited
liability company
By: /s/ Xxxxxx X. Xxxx
-----------------------------
Name: Xxxxxx X. Xxxx
Title: President
25
JOINDER AGREEMENT
THIS JOINDER is intended to be and is hereby made a part of and
incorporated in the foregoing Agreement of General Partnership of Meadow Pointe
General Partnership (the "Agreement"). Terms not otherwise defined herein shall
have the meanings ascribed thereto in the Agreement.
TO INDUCE Meadow Pointe to enter into the Agreement, and with the
understanding that Meadow Pointe intends to rely hereon, the undersigned, an
executive of Devco, hereby agrees to be bound by the terms and conditions of
Section 4.2 and Article 11 (including, without limitation, Section 11.21) of the
Agreement.
IN WITNESS WHEREOF, the undersigned have executed this Joinder this 3rd
day of October, 1999.
/s/ Xxxxxx X. Xxxx
------------------------
Xxxxxx X. Xxxx
EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
(Not Available)
A-1
EXHIBIT B
FORM OF GRID PROMISSORY NOTE (NON-NEGOTIABLE)
U.S. $1,000,000 October __, 1999
FOR VALUE RECEIVED, MEADOW POINTE GENERAL PARTNERSHIP, a Florida
general partnership ("Maker"), hereby promises to pay to the order of MEADOW
POINTE EAST, L.L.C., a Delaware limited liability company ("Lender"), at its
offices at 000 Xxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 (or at
such other place or places as Lender or the holder hereof may designate in
writing, from time to time), the principal sum, not to exceed ONE MILLION AND
NO/100 DOLLARS (U.S.$1,000,000.00) (the "Loan"), or such lesser sum outstanding
at the time when payment is due hereunder, in lawful money of the United States
of America, together with interest accruing thereon from the date hereof at the
rates and times hereinafter provided calculated on the daily principal balance
from time to time outstanding hereunder as is indicated from time to time on the
Grid Schedule attached hereto as Exhibit "A."
1. Principal and Interest Payments.
Maker promises to pay interest (calculated on the basis of a 360-day
year for the actual number of days elapsed) on the outstanding principal
balance, plus accrued interest from time to time outstanding hereunder from the
date hereof at the prime rate (or similar base rate) of Xxxxx Fargo & Company,
adjusted from day to day, plus one (1) point (the "Interest"). The unpaid
principal balance and all accrued interest, shall be due and payable as follows:
(a) Maker shall repay the principal due and payable, together
with any unpaid and accrued Interest due and payable hereunder, in full by no
later than October 6, 2004 (the "Due Date"), which shall be a date five (5)
years after the date hereof; provided, however, that Maker agrees that to the
extent it has available cash flow, it will use such available cash flow, from
time to time, to repay the principal due and payable, together with any unpaid
and accrued Interest due and payable hereunder, in full; and
(b) Accrued Interest shall be paid semiannually on January 1
and July 1 of each calendar year subsequent to the date hereof.
(c) All payments hereunder will be made by cash, check or wire
transfer in such coins or currency of the United States of America as at the
time of payment shall be legal tender for the payment of public and private
debts.
2. Intent Not to Commit Usury.
Nothing herein contained, nor any transactions related hereto, shall be
construed or so operate as to require Maker to pay interest at a greater rate
than is now lawful in such case to contract for,
B-1
or to make any payment, or to do any act contrary to applicable law. Should any
interest or other charges paid by Maker or any party liable for the payment of
this Note in connection with the Loan result in the computation or earning of
interest in excess of the maximum rate of interest that is legally permitted
under applicable law, then any and all such excess shall be and the same is
hereby waived by Lender and the holder hereof, and any and all such excess paid
by Maker shall be automatically credited against and in reduction of the balance
due under this indebtedness, and the portion of said excess which exceeds the
balance due under this indebtedness shall be paid by Lender to Maker and parties
liable for the payment of this Note.
3. Consent to Extensions of Time. It is agreed that the granting to
Maker of this Note or any other party of an extension or extensions of time for
the payment of any sum or sums due hereunder or under any document delivered in
connection with this Note or for the performance of any covenant or stipulation
thereof shall not in any way release or affect the liability of Maker of this
Note.
4. Waivers.
Maker and all endorsers, sureties and guarantors of this Note hereby
waive demand, presentment, notice of nonpayment, dishonor and protest.
5. Attorneys' Fees.
In case suit shall be brought for the collection hereof, or if it is
necessary to place the same in the hands of an attorney for collection, Maker
and all endorsers and guarantors of this Note agree to pay reasonable attorneys'
fees for making such collection, including but not limited to, all fees and
costs incident to any appellate, post-judgment and bankruptcy proceedings that
may result, whether the holder hereof is obligated therefor or not.
6. Jurisdiction and Venue.
Any civil action or legal proceeding arising out of or relating to this
Note shall be brought in the courts of record of the State of Florida in Palm
Beach County or the United States District Court, Southern District of Florida,
West Palm Beach Division. Each party consents to the jurisdiction of such court
in any such civil action or legal proceeding and waives any objection to the
laying of venue of any such civil action or legal proceeding in such court.
Service of any court paper may be effected on such party by mail, as provided in
this Note, or in such other manner as may be provided under applicable laws,
rules of procedure or local rules.
7. Governing Law.
The provisions of this Note, and any documents or instruments related
hereto or executed in conjunction herewith, shall be construed according to the
laws of the State of Florida, except if federal law would allow the payment of
interest hereunder at a higher maximum rate than would applicable Florida law,
such federal law shall apply to the determination of the highest applicable
lawful rate of interest hereunder.
B-2
7. Limitation on Advances and Use of Proceeds of this Note.
Maker may request advances hereunder solely for the payment of the
actual up-front development costs incurred by Maker in connection with
development and construction of real property located in Pasco County, Florida
and for no other purpose. No funds advanced by Lender shall be utilized for any
purpose other than as specified herein. Advances under this Note shall be made
not more than once each month. All advances hereunder shall be made by cashier's
check or by wire transfer of funds into a bank account in the State of Florida
maintained by Maker or an authorized agent of Maker. Maker hereby irrevocably
authorizes and instructs the holder hereof to note on the Grid Schedule attached
hereto as Exhibit "A" all advances of principal made hereunder, all accruals of
interest hereunder and all repayments of principal or interest hereunder. The
amounts noted thereon shall be conclusive and binding upon the parties as to the
indebtedness evidenced hereby absent fraud or manifest error. Lender shall have
no obligation to make any advances to Maker if Devco III, L.L.C., a Florida
limited liability company ("Devco"), or Xxxxxx X. Xxxx is in breach of any
provision of the Agreement of General Partnership of Maker, between Devco and
Lender.
8. Consent to Changes.
Maker consents and agrees that the granting to Maker or to any other
party of any extension of time for the performance of any covenant or
stipulation herein or the release of Maker or any other party, or the agreement
of Lender not to xxx Maker or any other party, or the suspension of the right to
enforce this Note against Maker or any other party, or the discharge of Maker or
any other party, shall not in any way release or affect the liability of Maker,
all rights against such parties being expressly reserved.
9. Amendment.
The provisions of this Note may not be amended, supplemented, waived or
changed orally, but only by a writing signed by the party as to whom enforcement
of any such amendment, supplement, waiver or modification is sought and making
specific reference to this Note. Maker has executed this Note as a principal and
not as a surety or accommodation party.
10. Assumability.
This Note shall not be assumable without Lender's prior written
consent, which may be withheld for any reason whatsoever.
11. Prepayment.
This Note may be prepaid, in whole or in part, at any time without
penalty provided that any partial payment shall be applied against the principal
amount outstanding and shall not postpone the due date of any subsequent payment
unless Lender shall otherwise agree in writing in its sole discretion.
B-3
IN WITNESS WHEREOF, Maker has executed this Note as of the day and year
first above written.
WITNESS: MEADOW POINTE GENERAL
PARTNERSHIP
By: MEADOW POINT EAST, LLC, a
Delaware limited liability company,
and a general partner
__________________________ By:
Print Name: ________________ Name:
Title:
--------------------------
Print Name: ________________
STATE OF CALIFORNIA
COUNTY OF __________
Personally appeared before me, the undersigned authority in and for the
said county and state, on this ___ day of _____________, 1999, within my
jurisdiction, the within named ________________, who acknowledged that he is the
__________ of MEADOW POINT EAST, LLC, a Delaware limited liability company, and
that for and on behalf of the said corporation, and as its act and deed he/she
executed the above and foregoing instrument, after first having been duly
authorized by said corporation so to do.
Print Name:
(NOTARY SEAL) NOTARY PUBLIC - STATE OF CALIFORNIA
Commission Number:
My commission expires:
B-4
EXHIBIT "A"
GRID SCHEDULE
Principal Principal Interest Interest
Date Advance Repayment Accrual Repayment Balance
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B-5
EXHIBIT C
FORM OF MANAGEMENT AGREEMENT
THIS MANAGEMENT AGREEMENT (the "Agreement") is made and entered into as
of this ____ day of October, 1999, by and among MEADOW POINTE GENERAL
PARTNERSHIP, a Florida general partnership (the "Partnership"), DEVCO III, LLC,
a Florida limited liability company ("Devco"), and XXXXXX X. XXXX (the
"Executive Manager"), individually. Capitalized terms not defined herein shall
have the meaning ascribed to them in that certain Agreement of General
Partnership between Devco and Meadow Pointe East, L.L.C., a Delaware limited
liability company, of even date herewith (the "Partnership Agreement").
WITNESSETH:
WHEREAS, the Partnership has entered into an Agreement for Development,
Sale and Purchase of Real Property, dated October __, 1999, with Clearwater Bay
Associates, Inc., a Florida corporation (the "Purchase Agreement"), pursuant to
which the Partnership has agreed to develop and market single family building
lots and building units in a master planned development presently known as
Xxxxxx Chapel Lakes (the "Property"); and
WHEREAS, pursuant to the terms of the Partnership Agreement, Devco and
the Executive Manager have agreed, and are obligated, to develop and manage the
Property in accordance with the Purchase Agreement and the Partnership
Agreement; and
WHEREAS, the Partnership, Devco and the Executive Manager desire to
enter into this Agreement for the purpose of defining the terms of their
relationship with respect to the development and management of the Property.
NOW, THEREFORE, in consideration of the mutual premises herein
contained, the parties hereto do hereby agree as follows:
1. MANAGEMENT AGREEMENT. Pursuant to the terms and conditions of this
Agreement, the Partnership hereby employs Devco as its manager of the Property
pursuant to the terms and conditions of this Agreement and the Partnership
Agreement. The Executive Manager agrees to fully perform all obligations of
Devco under this Agreement and the Partnership Agreement.
2. MANAGEMENT. The Executive Manager and Devco each agree that they
will use their best efforts to develop and manage the Property in accordance
with the terms of the Purchase Agreement and the Partnership Agreement
throughout the term of this Agreement. The Partnership hereby grants to Devco
the authority described in Section 1.3 of the Partnership Agreement.
C-1
3. CAPITAL IMPROVEMENTS. The Development Plan and Budget (the "Budget")
(approved pursuant to the terms of the Partnership Agreement) constitutes the
authorization for Devco to expend money to develop and market the Property.
Except for expenditures made and obligations incurred which were included in the
Budget, previously approved by the Partnership, or otherwise not required to be
approved by the Partnership, Devco shall not have any authority to make any
expenditure or incur any obligation on behalf of the Partnership.
4. PARTNERSHIP EXPENSES. The expense of any third party independent
contractor retained by the Partnership or by Devco on behalf of the Partnership
and in accordance with the Budget or otherwise approved of by the Partnership
shall be an expense of the Partnership.
5. EXECUTIVE MANAGER'S FEE. In consideration to oversee, supervise and
develop the Property on behalf of Devco under this Agreement and for the benefit
of the Partnership, the Executive Manager shall be paid the sum of One Hundred
Fifty Thousand Dollars ($150,000) per year during the term hereof from monies of
the Partnership and/or the CDDs (as defined in Section 8 herein), as applicable.
This fee shall be paid in equal monthly installments beginning one (1) month
from the date hereof.
6. PAYMENTS AND REIMBURSEMENTS TO DEVCO. Subject to Section 7 below, in
accordance with the Budget, as amended from time to time, the Partnership shall
promptly pay or, if applicable, reimburse Devco for all costs and expenses
reasonably incurred by Devco in connection with the performance of its duties
hereunder, including office overhead expense, professional and clerical expense,
and other standard annual charges listed on Exhibit A attached hereto and
approved by the Partnership. Except for the fee to be paid to the Executive
Manager as set forth in Section 5 above, the Partnership shall not pay or
reimburse Devco for any additional amounts for the services of the Executive
Manager.
7. MANAGEMENT FEES FROM THE COMMUNITY DEVELOPMENT
DISTRICTS. As more particularly set forth in the Purchase Agreement, the
Partnership plans to establish one or more community development districts
pursuant to Chapter 190, Florida Statutes (individually and collectively, the
"CDDs"), to finance and manage the construction of certain public infrastructure
improvements that will benefit the Property. As set forth in the Purchase
Agreement and Exhibit "F" thereto, the Partnership intends to enter into one or
more Project Management Agreements with the CDDs pursuant to which the
Partnership shall be compensated for supervising the construction of
infrastructure improvements by the CDDs. Devco will provide construction
management services to the CDDs on behalf of the Partnership, however, Devco
will not receive any management fees directly from the CDDs (including monies to
pay the Executive Manager's fee described in Section 5 above). The parties
anticipate that such fees will be paid to the Partnership by the CDDs and the
Partnership will, in turn, make payments to Devco (including all or a portion of
the Executive Manager's fee, as applicable). However, if and to the extent that
Devco receives such management fees from the CDDs (other than compensation
received by the Executive Manager or by other Devco employees for serving on the
board of supervisors of the CDDs), such fees paid directly by the CDDs shall be
credited against the amounts due to Devco hereunder.
C-2
8. NON-ASSIGNABILITY. This Agreement is not assignable by Devco or the
Executive Manager without the prior written consent of both partners of the
Partnership.
9. EMPLOYEES; INDEPENDENT CONTRACTOR. Devco shall have in its employ at
all times a sufficient number of capable employees to enable it to reasonably,
properly, adequately, safely and economically manage, operate, maintain and
account for the Property. All matters pertaining to the employment, supervision,
compensation, promotion and discharge of such employees are the responsibility
of Devco, which is in all respects the employer of such employees. Devco shall
fully comply with all acts and regulations having to do with workmen's
compensation, social security, unemployment insurance, hours of labor, wages,
working conditions and other employer/employee related subjects. Neither Devco
nor the Executive Manager shall be considered employees of the Partnership.
Devco shall at all times during the term of this Agreement be considered an
independent contractor of the Partnership.
10. MANAGEMENT FEE UPON TERMINATION. Notwithstanding anything
contained herein to the contrary, if the Partnership terminates this Agreement
pursuant to Section 11 hereof, then in such event Devco shall only be entitled
to receive, as full and sole compensation under this Agreement, all payments
already paid or accrued pursuant to Sections 5, 6 and 7 hereof as of the date of
termination. Upon any such termination, the Partnership shall pay all reasonable
and customary costs and expenses incurred by Devco pursuant to the terms of this
Agreement and the Partnership Agreement through the date of the termination.
11. TERM AND TERMINATION.
(a) Term. This Agreement shall become effective on the date
hereof and shall continue in full force and effect, until earlier terminated
pursuant to Section 11(b) herein.
(b) Termination. This Agreement shall terminate immediately
upon the occurrence of the earlier of the following events:
(i) In the Partnership's reasonable discretion,
For Cause (as hereinafter defined).
(ii) Upon the termination of the Partnership for
any reason or the occurrence of any event described in Article 10 of the
Partnership Agreement.
(iii) Upon the termination of the Purchase Agreement
for any reason.
(iv) If Devco ceases to be a partner of the
Partnership.
(c) Termination for Cause. "For Cause" shall mean (i) a
default by Devco in any respect in the performance or observance of any
covenant, or term of this Agreement or the Partnership Agreement, provided that
the breach shall be material and adverse to the Partnership and that Devco shall
fail either (A) to cure, terminate or remove such default within thirty (30)
days after
C-3
written notice thereof from the Partnership to Devco, or (B) if such default
cannot be cured within the aforesaid 30-day period, to diligently pursue the
cure of such default within such additional period as shall be reasonable to
cure such default, provided Devco is capable of curing such default and such
cure may be accomplished without damage or expense to the Partnership by reason
of the cure; or (ii) if Devco engages in criminal misconduct or commits fraud
which results in a loss to the Partnership.
(d) Effect of Termination. Upon termination of this Agreement,
Devco shall, as soon as practicable but in no event later than the thirtieth
(30th) day after notice is given in accordance with Section 13 hereof:
(i) Surrender and deliver to the Partnership:
(A) all funds held by Devco in
connection with the Property; and
(B) any other monies of the Partnership
in possession of Devco in any bank account;
(ii) Deliver to the Partnership as received any
monies due the Partnership under this Agreement but received by Devco after the
effective date of such termination;
(iii) Deliver to the Partnership all materials,
equipment, tools and supplies, keys, contracts and documents relating to the
Property, and copies of such other accountings, papers, and records as the
Partnership shall request pertaining to the Property;
(iv) If applicable, assign the existing contracts
relating to the development of the Property to the Partnership or such third
parties as the Partnership shall direct;
(v) Vacate any portion of the Property then
occupied by Devco as a consequence of this Agreement; and
(vi) Furnish all such information in order to
effectuate an orderly and systematic ending of Devco's duties and activities
hereunder. Within ten (10) days after any such termination, Devco shall
deliver to the Partnership any written reports required hereunder for any
period not covered by prior reports at the time of termination. With regard to
the originals of all papers and records pertaining to the Property, the
possession of which are retained by Devco after termination, Devco shall:
(A) make the same available for inspection and reproduction by the Partnership
at reasonable times upon request of the Partnership; (B) deliver same into the
Partnership's possession in the event the Partnership in good faith requires
same for use in a legal or quasi-legal proceeding; and (C) not destroy the
same without first offering to deliver the same to the Partnership.
12. ASSIGNMENTS. Neither party may assign its rights and/or obligations
hereunder without the prior written consent of each other party to this
Agreement.
C-4
13. NOTICES. All notices and other communications required or permitted
under this Agreement shall be in writing (including facsimile, telex, telefax
and telegraphic communication) and shall be (as elected by the person giving
such notice) hand delivered by messenger or courier service, telecommunicated,
or mailed (airmail if international) by registered or certified mail (postage
prepaid), return receipt requested, addressed to:
With a copy to:
MEADOW POINTE GENERAL Xxxxx X. Xxxxxxx, Esq.
PARTNERSHIP Gunster, Yoakley, Xxxxxx-Xxxxx & Xxxxxxx, P.A.
c/o BF Enterprises, Inc. 000 X. Xxxxxxx Xxxxx
000 Xxxx Xxxxxx Xxxxx 000-Xxxx
Xxxxx 0000 Xxxx Xxxx Xxxxx, XX 00000
Xxx Xxxxxxxxx, XX 00000 Fax: (000) 000-0000
Attn: Xxxxx X. Xxxxx, Esq.
Xxxxxx X. Xxxxxxx
Fax: (000) 000-0000
With a copy to:
DEVCO III, L.L.C. Akerman, Senterfitt & Xxxxxx
00000 Xxxxx Xxxxxxx Xxxxxx 000 X. Xxxxxx
Xxxxx, Xxxxxxx 00000 Suite 1500
Attn: Xxxxxx X. Xxxx Xxxxx, Xxxxxxx 00000
Fax: (000) 000-0000 Attn: Xxxx X. Xxxxxxx, Esq.
Fax: (000) 000-0000
or to such other address as any party may designate by notice complying with the
terms of this Section 13. Each such notice shall be deemed delivered on: (a) the
date delivered if by personal delivery; (b) the date telecommunicated if by
telegraph; (c) the date of transmission with confirmed answer back if by
facsimile, telex, telefax or other telegraphic method; and (d) the date upon
which the return receipt is signed or delivery is refused or the notice is
designated by the postal authorities as not deliverable, as the case may be, if
mailed.
14. BINDING EFFECT. All of the terms and provisions of this Agreement,
whether so expressed or not, shall be binding upon, inure to the benefit of, and
be enforceable by the parties hereto and their respective legal representatives,
successors and permitted assigns.
15. HEADINGS. The headings contained in this Agreement are for
convenience of reference only and shall not limit or otherwise affect in any way
the meaning or interpretation of this Agreement.
C-5
16. GOVERNING LAW. This Agreement and all transactions contemplated by
this Agreement shall be governed by, and construed and enforced in accordance
with, the laws of the State of Florida without regard to principles of conflicts
of laws.
17. NO CONSTRUCTION AGAINST DRAFTSMEN. The parties acknowledge that
this is a negotiated Agreement, and that in no event shall the terms hereof be
construed against either party on the basis that such party, or its counsel,
drafted this Agreement.
18. SEVERABILITY. If any provision of this Agreement or any other
agreement entered into pursuant hereto is contrary to, prohibited by or deemed
invalid under applicable law or regulation, such provision shall be inapplicable
and deemed omitted to the extent so contrary, prohibited or invalid, but the
remainder hereof shall not be invalidated thereby and shall be given full force
and effect so far as possible. If any provision of this Agreement may be
construed in two or more ways, one of which would render the provision invalid
or otherwise voidable or unenforceable and another of which would render the
provision valid and enforceable, such provision shall have the meaning which
renders it valid and enforceable.
19. ABILITY TO ENTER INTO AGREEMENT. Each party represents and warrants
that it is duly organized, validly existing and in good standing under the laws
of the state of its organization, with all requisite corporate power and
authority to enter into this Agreement and to perform its obligations hereunder.
20. AMENDMENTS. The provisions of this Agreement may not be amended,
supplemented, waived or changed orally, but only by a writing signed by the
party as to whom enforcement of any such amendment, supplement, waiver or
modification is sought and making specific reference to this Agreement.
21. ARBITRATION. Notwithstanding anything to the contrary in this
Agreement, all claims for monetary damages and disputes relating in any way to
the performance, interpretation, validity, or breach of this Agreement shall be
referred to final and binding arbitration, before a single arbitrator, under the
commercial arbitration rules of the American Arbitration Association in Pasco
County, Florida. The arbitrator shall be selected by the parties and if the
parties are unable to reach agreement on selection of the arbitrator within
thirty (30) days after the notice of arbitration is served, then the arbitrator
will be selected by the American Arbitration Association. All documents,
materials, and information in the possession of a party to this Agreement and in
any way relevant to the claims or disputes shall be made available to the other
parties for review and copying not later than sixty (60) days after the notice
of arbitration is served. To the extent that a party would be required to make
confidential information available to any other, an agreement or an order shall
be entered in the proceeding protecting the confidentiality of and limiting
access to such information before a party is required to produce such
information. Information produced by a party shall be used exclusively in the
arbitration or litigation that may arise, and shall not otherwise be disclosed.
In no event shall a party be entitled to punitive damages in any arbitration or
judicial proceeding and all parties hereby waive their rights to any punitive
damages. In the event an arbitration panel or a court concludes that the
punitive damages waiver contained in the previous sentence is
C-6
unenforceable, then the parties agree that the court with subject matter
jurisdiction over the confirmation of the award shall have sole and exclusive
jurisdiction to determine issues of entitlement and amount of punitive damages.
The arbitrator shall NOT have subject matter jurisdiction to decide any issues
relating to the statute of limitations or to any request for injunctive relief,
and the parties hereby stipulate to stay the arbitration proceeding (without the
need of a bond) until any such issues in dispute are resolved. Judgment upon the
award rendered by the arbitrator shall be final, binding and conclusive upon the
parties and their respective administrators, executors, legal representatives,
heirs, successors and permitted assigns, and may be entered in any court of
competent jurisdiction.
22. RELATIONSHIP OF PARTIES. The parties are aware and agree that the
relationship between the Partnership and Devco (including the Executive Manager)
under this Agreement shall be that of an independent contractor and not an agent
or employee.
23. NO THIRD PARTY BENEFICIARY. This Agreement is solely between the
parties hereto and no person or persons not a party hereto shall have any rights
or privileges whatsoever either as a third party beneficiary or otherwise.
24. INCONSISTENCIES. Notwithstanding anything herein to the contrary,
if any provision in this Agreement shall be deemed inconsistent with the
Partnership Agreement, such provision herein shall be deemed invalid to the
extent so inconsistent and the Partnership Agreement shall control such matter
between the parties to this Agreement.
25. ENFORCEMENT COSTS. If any civil action, arbitration or other legal
proceeding is brought for the enforcement of this Agreement, or because of an
alleged dispute, breach, default or misrepresentation in connection with any
provision of this Agreement, the successful or prevailing party or parties shall
be entitled to recover reasonably attorneys' fees, sales and use taxes, court
costs and all expenses even if not taxable as court costs (including, without
limitation, all such fees, taxes, costs and expenses incident to arbitration,
appellate, bankruptcy and post-judgment proceedings), incurred in that civil
action, arbitration or legal proceeding, in addition to any other relief to
which such party or parties may be entitled. Attorneys' fees shall include,
without limitation, paralegal fees, investigative fees, administration costs,
sales and use taxes and all other charges billed by the attorney to the
prevailing party.
26. JURISDICTION AND VENUE. The parties acknowledge that a substantial
portion of the negotiations, anticipated performance and execution of this
Agreement occurred or shall occur in Pasco County, Florida. Any civil action,
arbitration or legal proceeding arising out of or relating to this Agreement
shall be brought in the courts of record of the State of Florida in Pasco County
or the United States District Court, Southern District of Florida. Each party
consents to the jurisdiction of such court in any such civil action, arbitration
or legal proceeding and waives any objection to the laying of venue of any such
civil action, arbitration or legal proceeding in such court. Service of any
court paper may be effected on such party by mail, as provided in this
Agreement, or in such other manner as may be provided under applicable laws,
rules or procedure or local rules.
C-7
IN WITNESS WHEREOF, the parties have hereunto executed this Agreement
the day and year first above written.
MEADOW POINTE GENERAL
PARTNERSHIP:
MEADOW POINTE EAST, L.L.C.,
General Partner
By:_____________________________
Name:
Title:
DEVCO III, L.L.C., General Partner
By:_____________________________
Name:
Title:
EXECUTIVE MANAGER:
Xxxxxx X. Xxxx
DEVCO, III, L.L.C.
By:_____________________________
Name:
Title:
C-8
EXHIBIT "A"
EXPENSES
(See Attachment)
C-9
EXHIBIT D
FORM OF DEVELOPMENT PLAN AND BUDGET
D-1
EXHIBIT E
SITE DEVELOPMENT PLAN
E-1
EXHIBIT F
SCHEDULE OF PROPOSED SALES
F-1
