Exhibit 10.11
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SECOND AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
XXXXXXX-JUDGE GROVE,
A NEW YORK LIMITED PARTNERSHIP
dated as of
February 9, 2005
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SECOND AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
XXXXXXX-JUDGE GROVE,
A NEW YORK LIMITED PARTNERSHIP
This SECOND AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP, dated as
of February 9, 2005 is entered into by and among CJG Management, Ltd., a Florida
limited partnership ("CJG Management"), as the general partner and those persons
and entities whose names and addresses appear on the books and records of the
Partnership as partners.
WITNESSETH:
WHEREAS, a limited partnership having the name "Xxxxxxx-Judge Grove" was
previously formed under the Laws of the State of New York (the "Partnership");
and
WHEREAS, CJG Management is the sole general partner of the Partnership; and
WHEREAS, the parties to this Second Amended and Restated Agreement of
Limited Partnership currently constitute all of the partners in the Partnership;
and
WHEREAS, the parties to this Second Amended and Restated Agreement of
Limited Partnership intend to amend and restate the Agreement of Limited
Partnership governing the Partnership upon the terms and conditions hereinafter
set forth;
NOW, THEREFORE, for valuable consideration, the parties do hereby agree
that the Partnership shall continue under, and the actions of each of the
parties to this Second Amended and Restated Agreement of Limited Partnership
with respect to the Partnership shall, to the extent not inconsistent with the
laws of the State of New York, be governed by, the terms and conditions of this
Agreement set forth below.
ARTICLE I
Certain Definitions; General Provisions
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Section 1.01 Continuation. The parties hereto hereby continue the
Partnership under the name Xxxxxxx-Judge Grove, L.P., in accordance with, and
subject to the terms and conditions set forth in, this Agreement.
Section 1.02 Certain Definitions. As used herein:
"Adjusted Capital Account" shall mean, with respect to any
Partner, the balance in the Partner's Capital Account (whether
positive or negative) as of the end of the Fiscal Year, (i) increased
by the sum of (A) any amount which such Partner is obligated to
contribute to the Partnership, (B) such Partner's share of minimum
gain attributable to partnership nonrecourse liabilities (within the
meaning of Treasury Regulations Section 1.704-2) as of the end of the
Fiscal Year, (C) such Partner's share of minimum gain attributable to
partner nonrecourse liabilities (within the meaning of Treasury
Regulations 1.704-2) as of the end of the Fiscal Year, and (D) any
amount for which such Partner is personally liable with respect to
liabilities of the Partnership (except to the extent that such amount
would duplicate the amount of any items under clauses (A), (B) or
(C)), and (ii) decreased by such Partner's share of the reasonably
expected net adjustments, allocations and distributions described in
Treasury Regulations Section 1.704-1(b)(2)(ii)(d)(4), (5) and (6).
"Affiliate" means, with respect to a Partner, any Person (i)
which directly or indirectly owns 50% or more of, or (ii) 50% or more
of which is directly or indirectly owned by, or (iii) 50% or more of
which directly or indirectly is owned by one or more other Persons
directly or indirectly owning 50% or more of, such Partner. For
purposes of the preceding sentence, a Person shall be deemed to own
that portion of another Person equal to (x) if such other Person is a
partnership, trust or any other unincorporated association or entity,
the percentage interest in income or capital of such partnership,
trust or unincorporated association or entity, or (y) if such other
Person is a corporation, the percentage of total shares or voting
shares of such corporation, whichever is greater, owned by such first
Person.
"Capital Account" means the amount or value of the Capital
Contributions made by a Partner and the allocations to such Partner of
Partnership items of income, gains, losses and deductions (pursuant to
Section 2.03(b) and predecessor provisions of prior limited
partnership agreements of the Partnership) and distributions (pursuant
to Section 5.01 and Section 7.03 and predecessor provisions of prior
limited partnership agreements of the Partnership), as adjusted by any
and all adjustments required to be made in order to maintain Capital
Account balances in compliance with Treasury Regulations Section
1.704-l(b).
The Capital Account for each Partner shall be adjusted at the
time of, and to reflect, an adjustment of the Gross Asset Value of all
Partnership assets pursuant to subparagraph (ii) of the definition of
Gross Asset Value in this Section 1.02 in accordance with Treasury
Regulations Section 1.704-1(b)(2)(iv), including Treasury Regulations
Section 1.704-1(b)(2)(iv)(f).
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"Capital Contribution" means the cash or fair market value of
other property previously contributed by a Partner (or its predecessor
in interest and properly allocable to such Partner) to the
Partnership, or that may in the future be contributed by a Partner
pursuant to this Agreement.
"Code" means the Internal Revenue Code of 1986, as amended from
time to time. A reference to a section of the Code shall be deemed to
include any amendatory or successor provision thereto.
"Distributable Funds" means the amount of cash (including cash
held in Partnership reserves and net refinancing proceeds) that the
Managing Partner anticipates will be available to the Partnership
during such period of time as the Managing Partner deems relevant to
such determination, reduced by the sum of (i) the amount of cash that
the Managing Partner, in its sole discretion, anticipates will be
required to meet all of the obligations of the Partnership (including,
but not limited to, capital expenditures and payments of principal and
interest on any debts and other obligations of the Partnership) during
such period, and (ii) the amount of cash that the Managing Partner, in
its sole discretion, believes necessary or appropriate for the
Partnership to retain.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time. A reference to a Section of ERISA
shall be deemed to include a reference to any amendatory or successor
provision thereto.
"GAAP" means generally accepted accounting principles and
practices in effect in the United States from time to time.
"GAAP Profits" means the profits of the Partnership for a fiscal
year calculated using GAAP.
"General Partner" means CJG Management, in its capacity as a
general partner in the Partnership, and any other Person which both
(a) acquires, pursuant to this Agreement, an Interest as a general
partner in the Partnership and (b) is admitted to the Partnership as a
general partner pursuant to this Agreement.
"Gross Asset Value" means, with respect to any asset, the asset's
adjusted basis for federal income tax purposes, except as follows:
(i) The initial Gross Asset Value of any asset contributed by a
Partner to the Partnership shall be the gross fair market value of
such asset, as determined by the contributing Partner and the General
Partner, provided that, if the contributing Partner is the General
Partner, the determination of the fair market value of the contributed
asset shall require the consent of a majority of the Limited Partners;
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(ii) The Gross Asset Values of all Partnership assets shall be
adjusted to equal their respective gross fair market values,
determined in accordance with Treasury Regulations Section
1.704-1(b)(2)(iv)(h), as of the date of the following: (A) the
acquisition of an additional interest in the Partnership by any new or
existing Partner in exchange for more than a de minimis capital
contribution; (B) the distribution by the Partnership to a Partner of
more than a de minimis amount of Partnership property as consideration
for an interest in the Partnership; and (C) the liquidation of the
Partnership within the meaning of Treasury Regulations Section
1.704-1(b)(2)(ii)(g); provided, however, that adjustments pursuant to
clauses (A) and (B) above shall be made only if the General Partner
reasonably determines that such adjustments are necessary or
appropriate to reflect the relative economic interests of the
Partners;
(iii) The Gross Asset Value of any Partnership asset distributed
to any Partner shall be adjusted to equal the gross fair market value
of such asset on the date of distribution as determined by the
distributee and the General Partner, provided that, if the distributee
is the General Partner, the determination of the fair market value of
the distributed asset shall require the consent of a majority of the
Limited Partners; and
(iv) The Gross Asset Values of Partnership assets shall be
increased (or decreased) to reflect any adjustments to the adjusted
basis of such assets pursuant to Code Section 734(b) or Section
743(b), but only to the extent that such adjustments are taken into
account in determining capital accounts pursuant to Treasury
Regulations Section 1.704-1(b)(2)(iv)(m) and the following:
(A) To the extent an adjustment to the adjusted tax basis of
any Partnership asset pursuant to Code Section 734(b) or Section
743(b) is required pursuant to Treasury Regulations Section
1.704-1(b)(2)(iv)(m)(4) to be taken into account in determining
capital accounts as a result of a distribution other than in complete
liquidation of a Partner's interest, the amount of such adjustment
shall be treated as an item of gain (if the adjustment increases the
basis of the asset) or loss (if the adjustment decreases the basis of
the asset) from the disposition of the asset and shall be taken into
account for purposes of computing Net Profits or Net Losses;
(B) To the extent an adjustment to the adjusted tax basis of
any Partnership asset pursuant to Code Section 734(b) or Section
743(b) is required pursuant to Treasury Regulations Section
1.704-1(b)(2)(iv)(m)(2) or Section 1.704-1(b)(2)(iv)(m)(4) to be taken
into account in determining capital accounts as the result of a
distribution to a Partner in complete liquidation of the Partner's
interest in the Partnership, the amount of such adjustment to the
capital accounts shall be treated as an item of gain (if the
adjustment increases the basis of the asset) or loss (if the
adjustment decreases such basis) and such gain or loss shall
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be specially allocated to the Partners in accordance with their
interests in the Partnership in the event Treasury Regulations Section
1.704-1(b)(2)(iv)(m)(2) applies, or to the Partner to whom such
distribution was made in the event Treasury Regulations Section
1.704-1(b)(2)(iv)(m)(4) applies; provided, however, that Gross Asset
Values shall not be adjusted pursuant to this subparagraph (iv) to the
extent the General Partner determines that an adjustment pursuant to
subparagraph (ii) is necessary or appropriate in connection with a
transaction that would otherwise result in an adjustment pursuant to
this subparagraph (iv).
If the Gross Asset Value of an asset has been determined or
adjusted pursuant to subparagraphs (i), (ii), or (iv), such Gross
Asset Value shall thereafter be adjusted by the depreciation taken
into account with respect to such asset for purposes of computing Net
Profits and Net Losses. For purposes of this definition of Gross Asset
Value, a capital contribution or distribution shall be considered de
minimis if its value is less than $1,000.
"Incentive Bonus" means an amount equal to five percent of the
GAAP Profits of the Partnership for a Fiscal Year in excess of
$500,000.
"Incentive Compensation Plan" means a deferred compensation plan
pursuant to which appropriate financial incentives are provided to
employees and consultants of the Partnership as determined by the
Managing Partner.
"Interest" has the meaning specified in Section 2.03(a).
"IRS" means the United States Internal Revenue Service.
"Limited Partner" means each of the Persons the names of which
appear on the books and records of the Partnership as partners in its
capacity as a limited partner in the Partnership, and any other Person
which both (a) acquires, pursuant to this Agreement, an Interest as a
limited partner in the Partnership and (b) is admitted to the
Partnership as a limited partner.
"Major Decision" has the meaning specified in Section 3.02.
"Majority-In-Interest" means one or more Partners which, in the
aggregate, hold greater than 50% of the Percentage Interests held by
all Partners.
"Managing Partner" means CJG Management for so long as it is a
General Partner and has not been removed (pursuant to Section
3.02(a)(v)), dissolved or otherwise ceases to be the managing partner
of the Partnership, and any other General Partner selected to be the
managing partner of the Partnership pursuant to Section 3.02(a)(ii).
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"Net Losses" means, for each Fiscal Year or other period, an
amount equal to the Partnership's loss, if any, for such Fiscal Year
or period, as the case may be, determined in accordance with Section
703(a) of the Code (with all items of income, gain, loss and deduction
required to be stated separately pursuant to Section 703(a)(1) of the
Code to be included in computing such loss); provided, however, such
loss shall be adjusted by any and all adjustments required to be made
in order to determine Capital Account balances in compliance with
Treasury Regulations Section 1.704-l(b).
"Net Profits" means, for each Fiscal Year or other period, an
amount equal to the Partnership's taxable income, if any, for such
Fiscal Year or period, as the case may be, determined in accordance
with Section 703(a) of the Code (with all items of income, gain, loss
and deduction required to be stated separately pursuant to Section
703(a)(1) of the Code to be included in computing such profit);
provided, however, such income shall be adjusted by any and all
adjustments required to be made in order to determine Capital Account
balances in compliance with Treasury Regulations Section 1.704-l(b).
"Notices" has the meaning specified in Section 10.01(a).
"Partners" means, collectively, the General Partners (including
the Managing Partner), and the Limited Partners, and any Person(s)
admitted to the Partnership as General Partner(s) or Limited
Partner(s) pursuant to this Agreement.
"Percentage Interest" means, for each Partner, its interest in
the distributions by, and income, gains, losses, deductions and
credits of, the Partnership, as set forth, as at the date hereof in
the books and records of the Partnership and as changed, from time to
time, pursuant to the terms of this Agreement.
"Person" means an individual, corporation, association, limited
liability company, partnership, trust, unincorporated organization or
a government or any agency or political subdivision thereof.
"Property" means the parcel or parcels of real property in Palm
Beach County, Florida owned by the Partnership, together with all
improvements thereon, the citrus and other trees planted and to be
planted thereon, the easements, rights and privileges appurtenant
thereto, and such other real property or interests therein, whether or
not contiguous with the real property described above, that may be
purchased or otherwise acquired by the Partnership from time to time.
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"Recognition and Retention Plan" means a deferred compensation
plan pursuant to which the Managing Partner can provide appropriate
financial incentives to employees, former employees and former general
partners of the Partnership.
"State" means the State of New York.
"Transfer" means any sale, assignment, gift, hypothecation,
pledge or other disposition, whether voluntary or by operation of law,
of an Interest or any portion thereof, or any such sale or other
disposition of an ownership or voting interest, directly or
indirectly, in a Partner, other than to the Partnership.
"Withdrawing Partner" has the meaning specified in Section
7.01(d).
Section 1.03 Name. The name of the Partnership shall be "Xxxxxxx-Judge
Grove L.P."
Section 1.04 Principal Place of Business. The Partnership's principal place
of business shall continue to be in Palm Beach County, Florida, or at such other
place as the Managing Partner may designate from time to time.
Section 1.05 Purposes; Powers. The purposes of the Partnership shall
continue to be to own the Property and all of the machinery, equipment,
inventory and other property, real or personal, tangible or intangible, owned or
acquired by the Partnership (or in which the Partnership owns or acquires any
interest) from time to time used in those businesses in which it may engage
pursuant to this Agreement; to engage in the business of citrus production and
other businesses related to citrus production, processing and sales; and to
engage in the business of holding real estate for investment and for
development. The Partnership shall have the power to do any and all acts and
things necessary, appropriate, proper, advisable, incidental to or convenient
for the furtherance and accomplishment of such purposes.
Section 1.06 Duration. The Partnership shall continue until dissolved
pursuant to Section 7.01.
Section 1.07 General Partner. CJG Management is the sole General Partner of
the Partnership on the date hereof. The management of the business and affairs
of the Partnership shall be conducted as provided in ARTICLE III.
Section 1.08 Limited Partners. The persons and entities whose names appear
as such on the books and records of the Partnership are the Limited Partners of
the Partnership on the date hereof. The Limited Partners shall not participate
in making the decisions of the Partnership, and in no event shall the Limited
Partners have the power to manage or transact any Partnership business or act
for or in the name of, or otherwise bind, the Partnership or take part in the
control of the business of the Partnership, except that the Limited Partners
shall have such rights and powers as are expressly granted to them in this
Agreement. No Limited Partner shall take any action which would, if taken, cause
(i) a partition of the Property, or any other asset of
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the Partnership, or (ii) a dissolution of the Partnership. No Limited Partner in
its capacity as such shall ever be personally liable for any part of debts or
other obligations of the Partnership, or obligated to make further Capital
Contributions to the Partnership.
Section 1.09 Statutory Compliance. The Partnership shall exist under, be
governed by, and this Agreement shall be construed in accordance with, the New
York Revised Uniform Limited Partnership Act. All real and personal property
owned by the Partnership (including, if and to the extent owned by the
Partnership, the Property) is and shall continue to be owned by the Partnership
as an entity and held in its name, and no Partner has or shall have any
ownership interest in any such property in its individual name. The Managing
Partner shall cause to be executed and filed on behalf and at the expense of the
Partnership (i) all certificates and other documents required by law to be filed
in connection with the continuation of the Partnership and this amendment and
restatement of the agreement of limited partnership of the Partnership, and (ii)
such other documents, instruments and certificates as it may deem necessary,
appropriate, helpful or convenient with respect to the continuation of, and the
conduct of business by, the Partnership.
ARTICLE II
Capital Contributions, Other Financing;
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Interests in the Partnership
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Section 2.01 Capital Contributions.
(a) Each of the Partners (other those Limited Partners who formerly held
Interests as General Partners or Special Limited Partners) or each Partner's
predecessor-in-interest has made a Capital Contribution to the Partnership prior
to the date hereof in the amount set forth in the books and records of the
Partnership.
(b) The Managing Partner may, from time to time, make, and may cause the
Partnership to accept from Persons (including Partners) offering to make, loans
and additional Capital Contributions to the Partnership, on such terms as it may
deem necessary, appropriate, helpful or convenient subject to the terms of this
Agreement.
Section 2.02 Financing of the Partnership. The money required to finance
the business of the Partnership shall be derived from the revenues of the
Partnership and from loans and Capital Contributions to the Partnership.
Section 2.03 Interests in the Partnership; Allocation of Profits, Gains,
Losses and Deductions.
(a) Each Partner has an ownership interest in the Partnership (an
"Interest") measured by its respective Percentage Interest. Each Partner's
Percentage Interest, as of the date hereof, is set forth in the books and
records of the Partnership.
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(b) The income, gains, losses and deductions of the Partnership shall be
determined for each Fiscal Year in accordance with the accounting methods
followed by the Partnership for federal income tax purposes, and shall be
allocated as follows:
(i) Subject to subsections (iii) and (iv) of this Section 2.03(b), the
Net Losses of the Partnership shall be allocated to the Partners in the
following order of priority:
(I) First, to the Partners in accordance with their Percentage
Interests, to the extent that the amount of Net Profits previously
allocated to the Partners under Section 2.03(b)(ii)(IV) exceed the sum
of (i) distributions previously made to the Partners under Section
5.02(a) plus (ii) the Net Losses theretofore allocated to the Partners
under this Section 2.03(b)(i)(I);
(II) Second, to each Partner in proportion to the amount the
positive balance in its Adjusted Capital Account bears to the
aggregate of positive balances in all Adjusted Capital Accounts, until
the Adjusted Capital Accounts of the Partners are reduced to zero; and
(III) Third, to the General Partner.
(ii) Subject to subsections (iii) and (iv) of this Section 2.03(b),
the Net Profits of the Partnership shall be allocated in the following
order of priority:
(I) First, to the General Partner ratably (as described in
Section 2.03(b)(i)(III)) until the General Partner has been allocated
Net Profits equal to the amount of Net Losses previously allocated to
it under Section 2.03(b)(i)(III);
(II) Second, to each Partner in proportion to the amount of Net
Losses previously allocated to each Partner under Section 2.03(b)
(i)(II) bears to the aggregate of all Net Losses so allocated to all
Partners, until the Partners have been allocated Net Profits equal to
the amount of Net Losses previously so allocated;
(III) Third, to each Partner in proportion to the amount of Net
Losses previously allocated to each Partner under Section
2.03(b)(i)(I) bears to the aggregate of all Net Losses so allocated to
all Partners until the Partners have been allocated Net Profits equal
to the amount of Net Losses previously so allocated; and
(IV) Fourth, to the Partners in accordance with their Percentage
Interests.
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(iii) Notwithstanding paragraphs (i) and (ii) of this Section 2.03(b):
(I) Minimum Gain Chargeback. Notwithstanding any other provision
of this Agreement, if there is a net decrease in Partnership minimum
gain (as defined in Treasury Regulations Section 1.704-2(g)(2)), items
of income and gain shall be allocated to all Partners in accordance
with Treasury Regulations Section 1.704-2(f), and such allocations are
intended to comply with the minimum gain chargeback requirements of
Treasury Regulations Section 1.704-2 and shall be interpreted
consistently therewith.
(II) Section 704(c) Allocation. (1) Solely for federal, state and
local income tax purposes and not for book or Capital Account
purposes, depreciation, amortization, gain or loss with respect to the
property that is properly reflected on the Partnership's books at a
value (computed in accordance with subparagraph (i) of the definition
of "Gross Asset Value" in Section 1.02) that differs from its adjusted
basis for federal income tax purposes shall be allocated in accordance
with the principles and requirements of Code Section 704(c) and the
Treasury Regulations promulgated thereunder, and in accordance with
the requirements of the relevant provisions of the Treasury
Regulations issued under Code Section 704(b). For Capital Account
purposes, depreciation, amortization, gain or loss with respect to
property that is properly reflected on the Partnership's books at a
value that differs from its adjusted basis for tax purposes shall be
determined in accordance with the rules of Treasury Regulations
Section 1.704-1(b)(2)(iv)(g).
(2) In the event the Gross Asset Value of any Partnership
asset is adjusted pursuant to subparagraph (ii) of the definition of
"Gross Asset Value" in Section 1.02, subsequent allocations of income,
gain, loss, and deduction with respect to such asset shall take
account of any variation between the adjusted basis of such asset for
federal income tax purposes and its Gross Asset Value in the same
manner as under Code Section 704(c) and the Treasury Regulations
promulgated thereunder.
(3) In accordance with Treasury Regulations Sections
1.704-1(b)(2)(iv)(f)(2), unrealized income, gain, loss or deduction in
Partnership assets as of the time of the adjustment of the capital
accounts pursuant to the definition of "Capital Account" in Section
1.02 (that had not been reflected in the Capital Accounts previously)
shall be allocated among the Partners on a taxable disposition of any
Partnership asset, the Gross Asset Value of which has been adjusted
pursuant to subparagraph (ii) of the definition of "Gross Asset Value"
in Section 1.02, as if there were a taxable disposition of such
Partnership assets at the time of the adjustment of the capital
accounts.
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(4) In accordance with Treasury Regulations Sections
1.704-1(b)(2)(iv)(f)(3) and 1.704-1(b)(2)(iv)(g), capital accounts
shall be adjusted for allocations to them of depreciation, depletion,
amortization, and gain or loss, as computed for book purposes, with
respect to any Partnership asset, the Gross Asset Value of which has
been adjusted pursuant to subparagraph (ii) of the definition of
"Gross Asset Value" in Section 1.02.
(5) In accordance with Treasury Regulations Section
1.704-1(b)(2)(iv)(f)(4), Partners' distributive shares of
depreciation, depletion, amortization, and gain or loss, as computed
for tax purposes, with respect to any Partnership asset, the Gross
Asset Value of which has been adjusted pursuant to subparagraph (ii)
of the definition of "Gross Asset Value" in Section 1.02, shall be
determined so as to take account of the variation between the adjusted
tax basis and the Gross Asset Value of such Partnership assets in the
same manner as under Code Section 704(c).
(6) Any elections or other decisions relating to such
allocations shall be made by the General Partner in any manner that
reasonably reflects the purpose and intention of this Agreement,
provided that the Partnership shall elect to apply the allocation
method permitted by the Treasury Regulations under Code Section
704(c). Allocations pursuant to this Section 2.03 are solely for
purposes of federal, state, and local taxes and shall not affect, or
in any way be taken into account in computing, any Partner's Capital
Account or share of Net Profits, Net Losses, other items, or
distributions pursuant to any provisions of this Agreement.
(III) Risk of Loss Allocation. Any item of Partner Nonrecourse
Deduction (as hereinafter defined) with respect to a Partner
Nonrecourse Debt (as hereinafter defined) shall be allocated to the
Partner or Partners who bear the economic risk of loss for such
Partner Nonrecourse Debt in accordance with Treasury Regulations
Section 1.704-2(i). The term "Partner Nonrecourse Deduction" means any
item of loss that is attributable to a Partner Nonrecourse Debt
pursuant to Treasury Regulations Section 1.704-2(i)(1) and (2). The
term "Partner Nonrecourse Debt" means any nonrecourse debt of the
Partnership (within the meaning of Treasury Regulations Section
1.704-2(b)(4)) for which any Partner bears the economic risk of loss
(within the meaning of Treasury Regulations Section 1.704-2(b)(4)).
Subject to subparagraph (I) hereof, but notwithstanding any other
provision of this Agreement, in the event that there is a net decrease
in minimum gain attributable to a Partner Nonrecourse Debt (such
minimum gain being hereinafter referred to as "Partner Nonrecourse
Minimum Gain") for a taxable year of the Partnership, then, after
taking into account allocations pursuant to subparagraph (a) hereof,
but before any other allocations are made for such taxable year, each
Partner with a share of Partner Nonrecourse Gain attributable to such
Partner Nonrecourse Debt at the beginning of such year shall be
allocated items of income and gain for such year (and if necessary,
for
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subsequent years) equal to such Partner's share of the net decrease in
Partner Nonrecourse Minimum Gain as determined under Treasury
Regulations Section 1.704-2(i)(4).
(IV) Allocation of Excess Nonrecourse Liabilities. For the
purpose of determining each Partner's share of Partnership nonrecourse
liabilities pursuant to Treasury Regulations Section 1.752-3(a), and
solely for such purpose, each Partner's interest in Partnership
profits is hereby specified to be such Partner's Percentage Interests.
(V) Other Allocation Rules.
(1) Net Profits, Net Losses, and any other items of income,
gain, loss, or deduction shall be allocated to the Partners pursuant
to this Section 2.03 as of the last day of each Fiscal Year, provided
that Net Profits, Net Losses, and such other items shall also be
allocated at such times as the Gross Asset Values of Partnership
Property are adjusted pursuant to subparagraph (ii) of the definition
of Gross Asset Value in Section 1.02.
(2) For purposes of determining the Net Profits, Net Losses,
or any other items allocable to any period, Net Profits, Net Losses,
and any such other items shall be determined on a daily, monthly, or
other basis, as determined by the General Partner using any
permissible method under Code Section 706 and the Treasury Regulations
promulgated thereunder.
(3) All allocations to the Partners pursuant to this Section
2.03 shall, except as otherwise provided, be divided among them in
proportion to the Interests held by each.
(VI) Unexpected Allocations and Distributions. No allocation may
be made to a Limited Partner to the extent such allocation causes or
increases a deficit balance in such Limited Partner's Capital Account
in excess of any amount that such Limited Partner is obligated to
restore (taking into account Treasury Regulations Sections
1.704-1(b)(2)(ii)(d), 1.704-2(i)(5) and 1.704-2(g)(1)(ii)) as of the
end of the taxable year to which such allocation relates.
Notwithstanding any other provision of this Agreement except
subparagraphs (I) and (III) hereof, in the event that a Limited
Partner unexpectedly receives an adjustment, allocation or
distribution described in Treasury Regulations Section
1.704-1(b)(2)(ii)(d)(4), (5) or (6) which - results in such Limited
Partner having a negative Capital Account balance (as determined
above), then such Limited Partner shall be allocated items of income
and gain (including items of gross income) in an amount and manner
sufficient to eliminate, to the extent required by the Treasury
Regulations, such negative balance in such Limited Partner's Capital
Account as quickly as possible.
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(VII) The Partners are aware of the income tax consequences of
the allocations made by this Section 2.03 and agree to be bound by the
provisions of this Section 2.03 in reporting their shares of
Partnership income and loss for income tax purposes, except to the
extent otherwise required by law.
(iv) Adjustment of Capital Accounts. After all allocations for a
taxable year are made, Capital Accounts shall be adjusted by the
Partnership to the extent necessary to comply with all applicable laws,
regulations and administrative pronouncements. Notwithstanding anything
contained in this Agreement to the contrary, any and all distributions to
the Partners to be made under Section 7.02 shall be made in the order of
priority set forth in Section 5.02. The tax allocation provisions of this
Agreement are intended to produce final Capital Account balances that are
at levels ("Target Final Balances") which permit liquidating distributions
that are made in accordance with such final Capital Accounts balances to be
equal to the distributions that would occur under Section 5.02(a) if such
liquidating proceeds were distributed pursuant to Section 5.02(a). To the
extent that the tax allocation provisions of this Agreement would not
produce the Target Final Balances, the Partners agree to take such actions
as are necessary to amend such tax allocation provisions to produce such
Target Final Balances. Notwithstanding the other provisions of this
Agreement, allocations of income, gain, loss and deduction (including items
of gross income, gain, loss and deduction) for the year in which
distributions to the Partners are made under Section 7.02 shall be made as
necessary to produce such Target Final Balances (and, to the extent such
allocations would not effect such result, at the discretion of the Managing
Partner, the prior tax returns of the Partnership shall be amended to
reallocate items of gross income, gain, loss and deduction to produce such
Target Final Balances).
Section 2.04 Withdrawal of Capital; Limitation on Distributions. No Partner
shall be entitled to withdraw any part of its Capital Account in, or to receive
any distributions from, the Partnership, except as provided in Section 5.01 and
Section 7.02. No Partner shall be entitled to demand or receive interest on its
Capital Account or any property other than cash from the Partnership.
ARTICLE III
Management
----------
Section 3.01 In General.
(a) The Managing Partner shall be responsible for the management of the
business, activities and affairs of the Partnership. The Managing Partner shall
have all the rights and powers which may by law be possessed by it and such
rights and powers as are necessary, advisable or convenient to the discharge of
its duties hereunder. Without limiting the generality of the foregoing, but
subject to the requirements and provisions of Section 3.02, the Managing Partner
shall have all of the following rights and powers which it may exercise on
behalf of the
13
Partnership without the approval of any other Partner, at the cost, expense and
risk of the Partnership:
(i) to expend the capital of the Partnership in a manner that it in
good faith believes to be in furtherance of the Partnership's business,
subject to the limitations, if any, on the rights and powers of the
Managing Partner to do so set forth elsewhere in this Agreement;
(ii) to hold, level, clear, grade, develop, prepare, plant trees on,
build buildings, roads, drainage and other facilities on, otherwise
improve, maintain, subdivide, lease, sell and otherwise manage the
Property; to purchase, plant and maintain citrus and other trees, a citrus
and other tree nursery and citrus and other xxxxxx on the Property; to
develop, maintain, manage, improve and attempt to enhance the value of the
citrus and other agricultural product businesses (and the other businesses
and assets) of the Partnership; and to enter into and fulfill its
obligations under agreements of any and every nature and description with
others with respect to such activities and businesses, which agreements may
contain such terms, provisions and conditions as the Managing Partner in
its sole and absolute discretion may approve;
(iii) to purchase such contracts of liability, casualty, frost, wind,
flood and other insurance as the Managing Partner may deem advisable,
appropriate, convenient or beneficial to the Partnership;
(iv) to purchase, plant, maintain, graft, and transplant seedling
rootstock, citrus and other trees, and other crops; to clear, prepare,
irrigate, fertilize, spray, care for and maintain, or cause to be cleared,
prepared, irrigated, fertilized, sprayed, cared for and maintained, and to
provide for the drainage of, the real property owned by the Partnership; to
grow, produce, genetically engineer, store, manage, sell (by such means as
the Managing Partner determines to be appropriate, convenient or beneficial
to the Partnership, including, without limitation, by sales at retail,
including at the Partnership's real property if the Managing Partner
determines that to do so might be appropriate, convenient or beneficial),
process, pack and otherwise deal with citrus and other fruits, vegetables,
crops and other agricultural products, and products derived and to be
derived therefrom, and to purchase or otherwise acquire from any Person any
of such items for any of such purposes;
(v) to hold real property for investment and for development and to
enter into financial arrangements, including all necessary financial
commitments, for development of the Property;
(vi) to organize or acquire and own corporations and other entities to
serve the actual and perceived needs and purposes of the Partnership;
(vii) to purchase stock in and advance funds to cooperatives through
which citrus and other fruits, and other agricultural products of the
Partnership, are or may be
14
sold, or through which equipment and supplies for use by the Partnership
are or may be purchased;
(viii) to invest and reinvest Partnership funds in government
securities, certificates of deposit, banker's acceptances or other
financial investments;
(ix) to borrow money on behalf of the Partnership, to assume
obligations on behalf of the Partnership and to discharge the Partnership's
obligations under any promissory note (or other document) evidencing the
indebtedness of the Partnership or under any mortgage, deed of trust, trust
to secure debt or other pledge, assignment or security instrument securing
payment of such promissory note (or other document) or encumbering the
Property and, in furtherance of the foregoing, to execute and deliver, in
the name and on behalf of the Partnership, any notes, mortgages, deeds of
trust, deeds to secure debt and other security instruments and other
documents encumbering, reencumbering and/or relating to the Property and
other assets of the Partnership, including, without limitation, any and all
such notes, mortgages, deeds of trust, deeds to secure debt and other
security instruments and other documents with respect to any financing or
refinancing obtained for the purpose of acquiring any interest in real
property and/or satisfying existing financing;
(x) to sell, dispose of, trade, exchange, convey, quitclaim, mortgage,
encumber, hypothecate (including as cross-collateral if the Managing
Partner in good faith believes that to do so would be in the best interests
of the Partnership), subdivide, surrender, release or abandon, with or
without consideration of any and every nature and description, upon such
terms and conditions as the Managing Partner may deem advisable,
appropriate or convenient, all or any portion of the Property, fruit and
other agricultural crops and products, and any of the other assets of the
Partnership, subject to the consent requirement of Section 3.02(a);
(xi) to execute leases, subleases, licenses, rental agreements,
occupancy agreements, use agreements and concession agreements with respect
to all or any portion of the Property or any of the other assets, products
and businesses of the Partnership;
(xii) to enter into such agreements, contracts, guarantees, documents
and instruments with such Persons (including, without limitation,
governmental agencies and instrumentalities), and to give such receipts,
releases and discharges with respect to all of the foregoing and any
matters related or incident thereto, as the Managing Partner in good faith
may deem advisable, appropriate, helpful or convenient for the Partnership
from time to time;
(xiii) to delegate any and all of its duties hereunder, and in
furtherance of any such delegation to appoint, employ or contract with any
Persons that it in its sole discretion may deem necessary, advisable,
helpful or convenient for the transaction of one or more of the businesses
of the Partnership, including Persons that are Affiliates, officers,
directors or employees of the Managing Partner or of any other Partner
15
(including those in which it or Persons directly or indirectly controlling
it may have a proprietary interest). Such Persons may, under the direct or
indirect supervision of the Managing Partner, administer the day-to-day
operations of the Partnership; may serve as the Partnership's advisors and
consultants in connection with the policy decisions made and contemplated
to be made by the Managing Partner; may act as grove managers, business
managers, product managers, project managers, architects, engineers,
consultants, builders, accountants, correspondents, attorneys, brokers,
escrow agents or in any and all other capacities deemed by the Managing
Partner to be necessary, desirable, appropriate or convenient; may
investigate, select, and on behalf of the Partnership conduct relations
with Persons acting in such capacities and, subject to Section 3.04, may
pay compensation (including, without limitation, compensation that is
dependent in whole or in part on one or more measurable variable factors
relating to the profitability of, or cash flow, cost savings or other
revenue enhancement generated by or from, the Partnership as a whole or one
or more discrete products, xxxxxx or fields, ventures or undertakings of
the Partnership) to, and enter into contracts with, or employ, or pay for
services performed or to be performed by, any of them in connection with
the Property, or any part of it, any of the other assets, investments,
businesses, crops or products of the Partnership or ventures made, or
undertakings entered into, by the Partnership; may perform or assist in the
performance of such administrative or managerial functions necessary in the
management of one or more of the Partnership, the Property, and the
Partnership's businesses and assets, as determined by the Managing Partner;
and may perform such other acts or services as the Managing Partner in its
sole and absolute discretion may approve;
(xiv) to admit additional Persons to the Partnership as Partners,
provided that, if (x) the new Partner will be a General Partner or (y) the
new Partners would have rights, powers, liabilities and/or obligations that
differ in material respects from those of some or all of the other
Partners, the Managing Partner shall obtain the consent of the Limited
Partners as required by Section 3.02(a) prior to admitting the new
Partners;
(xv) to offer to purchase or redeem the Interests of one or more of
the Partners selected by the Managing Partner from time to time, on such
terms and conditions as the Managing Partner deems appropriate, to
consummate such purchases and redemptions, and to obtain funds to enable it
to consummate such purchases and redemptions on such terms as the Managing
Partner may deem to be necessary, advisable, appropriate or convenient;
(xvi) to adopt and implement the Recognition and Retention Plan and
Incentive Compensation Plan so as to provide additional financial
incentives to key employees of the Partnership; provided, however, none of
the remaining awards available for grant under the Recognition and
Retention Plan shall be granted;
(xvii) to reinvest all or any portion of amounts received by the
Partnership from the condemnation of all or any portion of the Property, or
the sale of all or any portion of
16
the Property under threat of condemnation, so as to defer the recognition
of gain under Section 1033 of the Code; and
(xviii) to do and undertake to do any and all other things and to
execute and deliver, in the name and on behalf of the Partnership, any and
all certificates, documents, instruments and agreements necessary,
advisable, appropriate, helpful or convenient in the discretion of the
Managing Partner to effectuate any of the foregoing.
(b) The Managing Partner shall (or shall cause others to) diligently
attempt to discharge (to the extent funds are available therefor) the following
obligations on behalf and at the expense of the Partnership in a manner
consistent with this Agreement:
(i) Protect and preserve the title to and the interest of the
Partnership in its property and assets, real, personal and mixed,
including, for so long as it is an asset of the Partnership, the Property.
(ii) Keep all books of account and other records of the Partnership
and provide to the Partners reports and statements as required by ARTICLE
IV.
(iii) Maintain all funds of the Partnership (other than xxxxx cash and
funds from time to time invested in financial products or other Partnership
assets) in one or more bank accounts established pursuant to Section 4.03.
(iv) Make periodic distributions to the Partners as required by
Section 5.02.
(v) Perform all other obligations provided elsewhere in this Agreement
to be performed by the Managing Partner.
(c) Third parties dealing with the Partnership shall be fully protected in
relying, without further inquiry, upon any action taken or instrument executed
on behalf of the Partnership by the Managing Partner, and on behalf of the
Managing Partner by the President or any other officer of its general partner,
or any other Person specifically empowered by the Managing Partner so to act.
(d) If the Managing Partner determines that it is in the best interest of
the Partnership to sell additional Interests, each of the then Limited Partners
shall have the right, but not the obligation, to purchase the additional
Interests.
(i) The Managing Partner shall deliver notice (the "Offer Notice") to
each Limited Partner of the Partnership's intent to sell additional
Interests and the purchase price of the Interests. Each Limited Partner
shall have 30 days (the "Offer Period") after the receipt of the Offer
Notice to elect to purchase its pro rata share of the Interests being
offered by delivering notice of its acceptance to the Managing Partner.
17
(ii) If the existing Partners do not elect to purchase all of the
additional Interests, the Managing Partner shall deliver notice to those
Partners who elected to purchase Interests offering to those Partners the
right to purchase the remainder of the Interests. A Partner shall have 15
days to elect to purchase the unsold Interests. A Partner electing to
purchase pursuant to this Section 3.01(d)(iii) shall be obligated to
purchase that portion of the unsold Interests equal to such Partners
Percentage Interest over the aggregate Percentage Interests of those
Partners electing to purchase pursuant to this Section 3.01(d)(iii).
(iii) Any Interests not subscribed to by the Limited Partners may be
offered to other Persons by the Managing Partner, subject to the provisions
of Section 3.01(a)(xiv).
Section 3.02 Major Decisions. Notwithstanding any other provision of this
Agreement, each of the actions described below (a "Major Decision") must be
approved by:
(a) all of the General Partners and the specified percentage of Percentage
Interests of the Limited Partners:
(i) amendment of this Agreement -- two thirds;
(ii) selection of a new Managing Partner -- majority;
(iii) amendments to the Recognition and Retention Plan described in
Section 3.07(b) or to the Incentive Compensation Plan described in Section
3.08(b) -- two thirds; and
(iv) admission of a General Partner or of a Partner or Partners with
rights, powers, liabilities and/or obligations different from other
Partners -- two thirds; and
(v) a merger by the Partnership with or into another entity -- two
thirds.
(b) two-thirds of the Percentage Interest of all Partners for removal of
the Managing Partner.
Before a Major Decision may be made, the Managing Partner shall send to
each Partner a written notice (the "Major Decision Notice") with such
information as the Managing Partner deems appropriate. Each Partner that fails
to give notice to the Managing Partner that the Partner disapproves of a
proposed Major Decision within forty-five days following the date on which the
Managing Partner sent the Major Decision Notice shall be deemed to have approved
such proposed Major Decision. All votes pursuant to this Section 3.02 must be
cast in writing (including by facsimile transmission and e-mail), unless a
Partner is deemed to have approved a Major Decision in the manner described in
the preceding sentence.
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Section 3.03 Tax Matters Partner; Tax Elections.
(a) The Managing Partner shall be the "tax matters partner" (as that term
is used in the Code) of the Partnership. The tax matters partner shall
(i) cause to be prepared and shall sign all tax returns of the
Partnership,
(ii) monitor any governmental tax authority in any audit that such
authority may conduct of the Partnership's books and records or other
documents of which the tax matters partner is aware,
(iii) give Notice to all Partners as follows:
(I) within 30 days after it receives notice from the IRS of any
administrative proceeding with respect to an examination of, or a
proposed adjustment to, any item of income, gain, loss, deduction or
credit of the Partnership,
(II) from time to time, of the current status of such
administrative proceeding,
(III) within 30 days of the final outcome of such administrative
proceeding, as to such outcome, and
(IV) at least five days prior to submitting a request for
administrative adjustment on behalf of the Partnership,
(iv) promptly send to each Partner a copy of all nonministerial
notices or communications received by the Partnership from, or sent by the
Partnership to, the IRS and
(v) take all other action to be taken by it as contemplated in
Sections 6221 through 6232 of the Code.
The Partnership will reimburse the tax matters partner for all expenses
reasonably incurred by it (including reasonable overhead expenses) in
connection with any administrative or judicial proceeding with respect to
the tax liabilities of the Partners which relate to the Partnership.
(b) At the request of any Partner, the Partnership shall make an election
to adjust its basis in its assets pursuant to section 754 of the Code. The
Partner making such request shall pay to the Partnership, within ten days after
demand therefor by the Managing Partner, all costs and expenses paid or incurred
by the Partnership as a result of the making of such election.
19
(c) The Partnership shall make an election to amortize its organizational
expenditures pursuant to section 709 of the Code, and to amortize any "start-up"
expenditures pursuant to section 195 of the Code.
Section 3.04 Contracts with Partners and Affiliates. The Managing Partner
may cause the Partnership to enter into contracts and agreements with Partners
and Affiliates of Partners if it in good faith determines that to do so is
necessary, appropriate or convenient for the Partnership; provided, however,
that the Managing Partner shall not knowingly permit the Partnership to enter
into such a contract or agreement unless the Managing Partner in good faith
determines that the compensation to be paid to such Partner or Affiliate
pursuant thereto (or the formula or other method by which such compensation is
to be determined) is reasonable under the circumstances. The Managing Partner is
specifically authorized to cause the Partnership to (i) engage Xxxxxxxxx Xxxxxxx
as the chief operating officer of the Partnership, with compensation to be paid
by the Partnership to him in such amount (or determined by such formula or other
method) as the Managing Partner deems reasonable under the circumstances, and
(ii) reimburse each Partner for such of the actual expenses the Managing Partner
shall determine were incurred and paid by the Managing Partner on behalf of the
Partnership in good faith to promote the Partnership's best interests or the
interests of all of its Partners.
Section 3.05 Resignation or other Termination of Managing Partner.
(a) The Managing Partner may resign from the performance of all of its
functions and duties as such hereunder at any time upon giving 30 days' advance
Notice of such resignation to each of the General Partners. Upon such
resignation, or in the event of the death, disability, withdrawal or removal
pursuant to Section 3.02(a)(v) of the Managing Partner, the Interest of the
resigning or otherwise terminated Managing Partner shall remain that of a
General Partner, and the Partners shall elect a new Managing Partner from among
the General Partners in the manner set forth in Section 3.02(a). If there is no
remaining General Partner, the Limited Partners shall admit one or more new
General Partners pursuant to Section 3.02(a).
(b) If neither Xxxxx Xxxxxxx nor Xxxxxxxxx Xxxxxxx is the controlling
shareholder (directly or indirectly) of the general partner of CJG Management,
CJG Management shall remain the Managing Partner unless all of the General
Partners except CJG Management and a majority of the Limited Partners determine
pursuant to the procedures in Section 3.02 that CJG Management shall be removed
as the Managing Partner and replaced by a new Managing Partner.
Section 3.06 Other Businesses. No Partner shall be prohibited from owning,
operating or investing in, either directly or indirectly, any real property or
any interest therein, either in the State of Florida or elsewhere, or from
engaging or possessing an interest in any citrus or related or unrelated
businesses of any nature or description, independently or with others, whether
or not in competition with the Partnership in any of such cases, and the other
Partners shall not have any rights by virtue of this Agreement in respect of
such property or other businesses, or the
20
income or profits derived therefrom. Each Partner shall be free to fully and
aggressively pursue all of its other business interests.
Section 3.07 Recognition and Retention Plan.
(a) Not later than 120 days after the end of each Fiscal Year, the
Partnership shall distribute the Incentive Bonus to those employees of the
Partnership, former employees and former general partners (or any combination
thereof) ("Distributees") as determined by the Managing Partner pursuant to the
Recognition and Retention Plan. The aggregate distributions to the Distributees
shall equal not less than 85% of the Incentive Bonus. That portion of the
Incentive Bonus that is not distributed to the Distributees shall revert to the
Partnership. If the Partnership does not have sufficient cash to pay the
Incentive Bonus for a Fiscal Year, then the amount unpaid shall accrue and shall
be paid in the next succeeding year.
(b) The Managing Partner shall have the right to make amendments to the
Recognition and Retention Plan, provided, that the Managing Partner shall not
amend the Recognition and Retention Plan with respect to the following matters,
except with the consent of the Limited Partners, as defined in Section 3.02(a):
(i) an increase in the percentage of the profits of the Partnership
constituting the Incentive Bonus to an amount in excess of 5%; or
(ii) an increase of the percentage of the Incentive Bonus payable to
the Managing Partner and its Affiliates if as a result of the increase,
more than 20% of the Incentive Bonus would be paid to the Managing Partner
and its Affiliates.
Section 3.08 Incentive Compensation Plan.
(a) The General Partners shall determine the employees and consultants of
the Partnership to whom awards under the Incentive Compensation Plan shall be
made. Awards under the Incentive Compensation Plan shall vest in the employees
and consultants to whom they are awarded only as long as the recipient continues
in the employ of or to serve as a consultant to the Partnership in accordance
with the terms of the Incentive Compensation Plan.
(b) The Managing Partner shall have the right to make amendments to the
Incentive Compensation Plan, provided that the Managing Partner shall not amend
the Incentive Compensation Plan with respect to the following matters, except
with the consent of the Limited Partners, as defined in Section 3.02(a):
(i) an increase in the total amount of awards available for grant
under the Incentive Compensation Plan;
(ii) acceleration of the rate of vesting of awards under the Incentive
Compensation Plan; or
21
(iii) a change in the formula pursuant to which the right to payment
under the Incentive Compensation Plan is determined.
Section 3.09 Net Worth Maintenance. The Managing Partner shall at all times
maintain a net worth of at least $10,000.
ARTICLE IV
Books; Budgets; Fiscal Year
---------------------------
Section 4.01 Administrative Services; Books; Records and Reports.
(a) The Managing Partner shall cause to be performed all general and
administrative services on behalf of the Partnership in order to assure that
complete and accurate books and records of the Partnership continue to be
maintained at the Partnership's principal place of business showing the names,
addresses and Interests of each of the Partners, all receipts and expenditures,
assets and liabilities, profits and losses, and all other records necessary for
recording the Partnership's business and affairs, including a Capital Account
for each Partner. Notwithstanding the preceding sentence, the books of the
Partnership shall continue to be kept on the accrual basis method of accounting
in accordance with GAAP, consistently applied for financial accounting purposes,
and the books and records shall be open to inspection and examination by each
Partner and its representatives at all reasonable times. In the event of a
Transfer of an Interest, the successor to the transferring Partner shall succeed
to the transferring Partner's Capital Account as of the date of the Transfer.
For purposes of the preceding sentence, all income, gain, loss and deductions
allocable pursuant to this Agreement for a Fiscal Year with respect to any
Interest that may have been the subject of a Transfer during such Fiscal Year
shall be allocable between the transferor and transferee based upon the number
of days that each was recognized by the Partnership as the owner of such
Interest, without regard to the results of Partnership operations during the
particular days of such Fiscal Year.
(b) The books of the Partnership shall be audited annually by a nationally
recognized firm of Certified Public Accountants and the Managing Partner shall
cause to be prepared, in accordance with sound accounting practice, and
delivered to all Partners, at the expense of the Partnership:
(i) within a reasonable time after the end of each Fiscal Year, but in
no event later than the 120th day after the end of each Fiscal Year, a copy
of the Partnership's financial statements, tax returns and Schedule K-l for
such Partner with respect to such Fiscal Year, together with such
information with respect to the Partnership as may be required to enable
each Partner properly to complete its Federal income tax return, any
required income tax return of any state and any other reporting or filing
requirement imposed by any governmental authority relating to the income or
activities of the Partnership; and
22
(ii) from time to time and with reasonable promptness, such further
information available to the Managing Partner in respect of the business,
affairs and financial condition of the Partnership as any Partner
reasonably may request.
(c) The Managing Partner shall cause an independent appraiser to prepare,
as of June 30 of each Fiscal Year prior to the termination of the Partnership
and as of the date of such termination, an appraisal of all of the Partnership's
real property, equipment and other assets. Such appraisal shall (i) set forth
the appraiser's opinion of the aggregate value as of such date of all of such
assets, and (ii) allocate such aggregate value among the real property,
equipment, other tangible assets (other than fruit), fruit, intangible assets,
and other asset categories from time to time required by the Managing Partner.
Section 4.02 Fiscal Year. The fiscal year of the Partnership shall be July
1 to June 30.
Section 4.03 Bank Accounts. The Managing Partner shall cause the
Partnership to maintain one or more bank accounts in banks of recognized
standing, which bank accounts shall include a checking account, and into which
bank accounts shall be deposited all funds of the Partnership (other than xxxxx
cash) not otherwise applied.
ARTICLE V
Distributions
-------------
Section 5.01 Payment of Expenses. Prior to making any Distributions to the
Partners, the Managing Partner shall pay or make provision for all expenses of
the Partnership, including but not limited to (i) the payment of the salaries of
all employees of the Partnership, and (ii) amounts to which employees are
entitled under the Recognition and Retention Plan and the Incentive Compensation
Plan.
Section 5.02 Distributions. Except as provided in Section 7.03,
Distributable Funds shall be distributed to the Partners as follows:
(a) Except as provided in clause (b) below, after payment of all expenses
as provided in Section 5.01, distributions of Distributable Funds shall be made
to the Partners in proportion to their Percentage Interests.
(b) If the Partnership has been dissolved pursuant to ARTICLE VII, and if
no election to continue the business of the Partnership has been made pursuant
to Section 7.02, the Distributable Funds of the Partnership shall be distributed
in accordance with Section 7.03.
Section 5.03 Restoration of Funds. Except as otherwise required by this
Agreement or by law, no Partner shall be required to restore to the Partnership
any funds distributed to it pursuant to Section 5.02.
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ARTICLE VI
Transfers of Partnership Interests
----------------------------------
Section 6.01 Prohibition on Transfers. No Transfer of an Interest may be
made without the consent, in writing and in the sole discretion, of the Managing
Partner, and then only if in compliance with this ARTICLE VI.
Section 6.02 Sale to a Specific Person. If a Partner wishes to sell its
Interest or any part thereof to a specific Person other than pursuant to Section
6.05 (provided, that the Partner may sell a portion of its Interest only if (i)
the portion to be sold is equal to or exceeds a Percentage Interest of 1%, and
(ii) the Partner will hold after the sale a Percentage Interest equal to or more
than .5%):
(a) the Partner desiring to make such sale (the "Seller") shall give the
Managing Partner not less than 60 days' prior written Notice of its intention to
make such sale, which Notice shall specify the Interest proposed to be conveyed,
the identity of the Person to which such sale is proposed to be made (the
"Buyer"), and the price and other terms of the proposed sale; and
(b) if the Managing Partner has not elected to acquire for the Partnership
such Interest on the same terms and at the same price as specified in such
notice, and which election is made in writing transmitted not more than 30 days
after receipt of the Notice from Seller; and
(c) if the Managing Partner, in its sole discretion, shall have consented
in writing, transmitted not more than 30 days after receipt of the Notice from
Seller, to the contemplated Transfer; then
(d) Seller may sell such Interest to the Buyer at the specified price and
upon the specified terms, but only if:
(i) the Buyer shall execute and deliver to the Managing Partner a
document satisfactory to the Managing Partner in all respects pursuant to
which the Buyer covenants to be bound by all of the terms and conditions of
this Agreement; and
(ii) the Seller shall deliver to the Managing Partner, if requested by
the Managing Partner so to do, an opinion of the Seller's counsel
(reasonably satisfactory to counsel to the Partnership) or Seller shall
reimburse the Partnership for an opinion of counsel to the Partnership to
the effect that the contemplated sale, if consummated, will not:
(I) result in a violation of the Securities Act of 1933 or any
other applicable federal or state law or the order of any court or
other tribunal having jurisdiction over the Partnership or any of its
assets; or
24
(II) be a breach or violation of, or an event of default under,
or give rise to a right to accelerate any indebtedness of the
Partnership under, any contract, instrument or agreement to which the
Partnership is a party or by which it or any of its property is or may
be bound; or
(III) result in, or create a prohibited transaction under, or
cause the Partnership to become a "party in interest" as defined in
Section 3(14) of ERISA, or otherwise result in the holder of an
Interest or the assets of the Partnership being subject to the
provisions of ERISA; or
(IV) result, directly or indirectly, in the termination of the
Partnership under Section 708 of the Code; or
(V) cause the classification of the Partnership as a partnership
for purposes of the Code to be lost, jeopardized or otherwise
adversely affected;
and
(iii) the Seller and the Buyer shall deliver such additional
documents, instruments and agreements as reasonably shall have been
required by the Managing Partner in connection with the sale; and
(iv) the Seller or the Buyer shall pay to the Partnership all costs,
expenses and liabilities incurred by the Partnership in connection with
such sale, and each of them shall have indemnified the Partnership (in a
manner reasonably satisfactory to the Managing Partner) for any such costs,
expenses and liabilities that may be incurred by the Partnership as a
result of or in connection with such sale.
Section 6.03 Violative Transfers. If a Partner attempts to make a Transfer
in violation of this ARTICLE VI, the attempted transfer shall be void ab initio,
and the Partner attempting to make such Transfer shall be liable to the
Partnership for all damages that the Partnership sustains as a result of such
attempted Transfer.
Section 6.04 Acquisitions of Interests by Partnership or Managing Partner.
Notwithstanding anything to the contrary contained in this ARTICLE VI, the
Partnership or the Managing Partner may offer to acquire or redeem, and may
acquire or redeem, the Interests of one or more of the Partners upon mutually
acceptable terms and conditions without first complying with any of the terms or
conditions set forth in the foregoing provisions of this ARTICLE VI.
Section 6.05 Transfers to Related Parties.
(a) A Limited Partner's Interest may be transferred without the consent of
the Managing Partner upon the following events, subject to the provisions of
Section 6.05(c) and the
25
requirement that written verification of the applicable event and proper
documentation is delivered to the Managing Partner prior to transfer:
(i) the death of an individual Limited Partner;
(ii) the termination of a trust that is a Limited Partner; or
(iii) the dissolution or reorganization of a partnership or
corporation that is a Limited Partner.
(b) A transferee pursuant to this Section 6.05 shall comply with the
provisions of Section 6.02(d) hereof.
(c) If a transfer pursuant to this Section 6.05 would result in a Limited
Partner's holding a Percentage Interest of less than .21875%, the Partnership
shall have the right, but not the obligation, to redeem the Limited Partner's
Interest. A Limited Partner or his personal representative (if the Limited
Partner is deceased) seeking to make a Transfer described in this Section
6.05(c) shall deliver Notice of the proposed Transfer to the Managing Partner.
The Managing Partner shall have 30 days to elect to exercise the option granted
in this Section 6.05(c) by delivering Notice of exercise to the Limited Partner.
The closing of the purchase shall be 30 days after the delivery of the Notice of
election. The purchase price for the Interest shall be an amount equal to (x)
80% of (i) the aggregate value of the Partnership 's assets determined pursuant
to Section 4.01(c) minus (ii) the aggregate liabilities of the Partnership as of
the appraisal date, (y) multiplied by the Percentage Interest.
ARTICLE VII
Dissolution and Liquidation
---------------------------
Section 7.01 Dissolution. Notwithstanding Section 9.01, the Partnership
shall be dissolved upon the first to occur of the following:
(a) October 14, 2019;
(b) The sale, transfer or other disposition of all or substantially all of
the assets of the Partnership;
(c) The acquisition by a Partner of all of the Interests of the other
Partners;
(d) The death, legal disability, dissolution, bankruptcy or insolvency of a
General Partner or an assignment by a General Partner for the benefit of its
creditors (any such Partner is referred to herein as a "Withdrawing Partner");
or
(e) The agreement so to do by two-thirds in Interest of the Partners.
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Section 7.02 Election to Continue the Business. Upon dissolution of the
Partnership pursuant to Section 7.01(d), the remaining Partners, by the
affirmative vote of Partners holding more than the Majority-in-Interest of the
Interests of all Partners (excluding for this purpose the Interest of the
Withdrawing Partner) may elect to reconstitute the Partnership. If they so
elect, the reconstituted Partnership shall continue the Partnership business,
and either (i) the Partnership, or at their option the remaining Partners in
such proportions as they shall agree, shall acquire the Interest of the
Withdrawing Partner as provided in this Section 7.02, or (ii) if neither the
Partnership nor the remaining Partners elects to acquire the Interest of the
Withdrawing Partner, such Interest shall be converted to that of a Limited
Partner under this Agreement. If the Partnership or the remaining Partners do
elect to acquire the Interest of the Withdrawing Partner as provided in this
Section 7.02, then, within 30 days of the event described in Section 7.01(d),
the Partnership shall, in good faith, appoint an appraiser to appraise the
Interest of the Withdrawing Partner and advise such Withdrawing Partner of such
appointment. The appraiser so selected shall be qualified in accordance with
applicable M.A.I. standards by education, experience and training to appraise
the assets and liabilities of the Partnership. The cost of the appraisal shall
be borne by the Partnership as constituted before the dissolution. The
appraiser, within 90 days after being so appointed, shall submit to all Partners
a written report and appraisal stating therein its opinion as to the value of
the Interest of the Withdrawing Partner as of the date of the event described in
Section 7.01(d) for the purposes of an all cash sale subject to existing
liabilities and encumbrances. At a closing to be held within 90 days following
receipt of the appraisal, the Partnership or the remaining Partners, as the case
may be, shall purchase, and the Withdrawing Partner shall sell, the Interest of
the Withdrawing Partner in exchange for payment of the cash price set forth in
the appraisal.
Section 7.03 Winding up Affairs and Distribution of Assets. Upon
dissolution of the Partnership (except dissolution pursuant to Section 7.01(c)),
and in the absence of an election to continue the business of the Partnership
pursuant to Section 7.02, the Managing Partner or, if none, a liquidating agent
selected by vote of a Majority-In-Interest of the Partners (the "Liquidator")
shall proceed to wind up the affairs of the Partnership, liquidate the remaining
property and assets of the Partnership and terminate the Partnership. The
proceeds of such liquidation (and the assets and property of the Partnership
that the Managing Partner or Liquidator determines to be not readily susceptible
to liquidation at a reasonable price) shall be applied in the following order of
priority: (a) first, to the expenses of such liquidation; (b) second, to the
debts and liabilities of the Partnership to third parties (including Partners
and Affiliates of Partners), if any, in the order of priority provided by law;
(c) third, a reasonable reserve shall be set up to provide for any contingent or
unforeseen liabilities or obligations of the Partnership to such third parties
(to be held and disbursed, at the discretion of the Partners, by an escrow agent
selected by them) and at the expiration of such period as the Partners may deem
advisable, the balance shall be distributed as provided in clause (d) hereof;
and (d) fourth, to each of the Partners in proportion to the positive balances
in their Capital Accounts (as adjusted to reflect the allocation of gain and
loss from the liquidation of Partnership assets and distributions to the
Partners pursuant to Section 5.02(b), above), until the balances in each of such
Capital Accounts have been reduced to zero.
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Section 7.04 Distribution in Kind. If any asset of the Partnership is to be
distributed in kind, such asset shall be valued to determine the amount of Net
Profits or Net Losses that would result if such asset were to be sold at its
fair market value, and such Net Profits or Net Losses shall be allocated to the
Capital Accounts in accordance with Section 7.023.
ARTICLE VIII
Indemnification; Exculpation
----------------------------
Section 8.01 Indemnification.
(a) The Partnership agrees to indemnify and advance expenses to each Person
to the full extent permitted by New York law, including indemnification for, and
advancement of expenses with regard to, derivative actions and actions to which
such Person is made a party that are brought in the right of the Partnership to
procure a judgment in its favor by reason of the fact that such Person or his
testator or intestate (if the Person is a natural person) is or was a General
Partner in the Partnership; provided, however, that the indemnity provided by
this Section 8.01 shall not apply to such acts as to which a judgment or final
adjudication adverse to the General Partner (or his testator or intestate if the
General Partner is a natural person) establishes that such acts were committed
in bad faith or were the result of active and deliberate dishonesty and were
material to the cause of action so adjudicated, or that he (or his testator or
intestate, if the Person is a natural person) personally gained in fact a
financial profit or other advantage to which he was not legally entitled.
(b) Each of the General Partners of the Partnership is hereby authorized
and empowered to (i) perform and do all other acts or things, (ii) execute and
deliver or file all other documents, agreements and papers, (iii) pay all
expenses, and (iv) take all further actions as in the General Partner's opinion
may be necessary or desirable in order to carry out the purposes and intent of
this Section 8.01.
Section 8.02 Exculpation. Except in the case of active and deliberate
fraud, willful misconduct or bad faith on the part of a Partner, the doing of
any act or the failure to do any act by a Partner, its constituent partners, its
officers, directors or shareholders, or its or their Affiliates, the effect of
which may be to cause or result in loss, cost, damage or expense to the
Partnership or another Partner, if done or omitted pursuant to the advice of
legal counsel or done or omitted in good faith in an attempt to promote the best
interests of the Partnership, shall not subject such Partner or its heirs,
administrators, executors, successors and assigns, nor its principals, officers,
directors, trustees, constituent partners, shareholders, Affiliates or other
owners or representatives to any liability, and such Partner is hereby
exculpated from liability from any such act or failure to act.
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ARTICLE IX
Continuity
----------
Section 9.01 Continuity. In the event of the withdrawal of a Partner or the
admission of a new Partner pursuant hereto, and subject to Section 7.01, the
business of the Partnership shall not be terminated, but the other Partners
shall continue the business of the Partnership and this Agreement shall continue
in full force and effect.
ARTICLE X
Miscellaneous
-------------
Section 10.01 Notices.
(a) All notices, consents, calls, approvals, designations, reports,
requests, waivers, elections and other communications (collectively, "Notices")
authorized or required to be given pursuant to this Agreement shall be given in
writing and (i) personally served on the Partner (or a general partner or an
officer of the Partner) to whom it is given, or (ii) mailed by registered or
certified mail, postage prepaid, or (iii) sent by facsimile transmission, with
electronic confirmation of complete transmission received by the sender, in each
case addressed as follows:
If to the General Partner:
c/x Xxxxxxx-Judge Grove L.P.
0000 Xxxxxxxx Xxxxx-Xxxxxxx Xxxx
Xxxxxxxxxxx, Xxxxxxx 00000
If to a Limited Partner, at the address set forth in the books and
records of the Partnership.
(b) All Notices shall be deemed given when delivered or, if mailed as
provided in Section 10.01(a), on the second day after the day of mailing or, if
sent by facsimile transmission as provided in Section 10.01(a), at the time of
confirmation of transmission. Any Partner may change his address for the receipt
of Notices at any time by giving Notice thereof to the Managing Partner.
Section 10.02 Entire Agreement. This Agreement supersedes all prior
agreements and understandings among the Partners with respect to the subject
matter hereof.
Section 10.03 Modification. No change or modification of this Agreement
shall be of any force unless such change or modification is in writing and has
been signed by a sufficient number of Partners as required elsewhere by this
Agreement.
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Section 10.04 Waivers. No waiver of any breach of any of the terms of this
Agreement shall be effective unless such waiver is in writing and signed by the
Partner against whom such waiver is claimed. No waiver of any breach shall be
deemed a waiver of any other or subsequent breach.
Section 10.05 Severability. If any provision of this Agreement shall be
held to be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
Section 10.06 Further Assurances. Each Partner shall execute such deeds,
assignments, endorsements, and other instruments and documents and shall give
such further assurances as shall be necessary to perform its obligations
hereunder.
Section 10.07 Investment and ERISA Representations.
(a) Each Partner represents and warrants that its Interest has been
acquired under this Agreement for its own account, for investment, and not with
a view to, or for sale in connection with, any distribution thereof, nor with
any present intention of distributing or selling such Interest, and that it will
not Transfer, or attempt to Transfer, its Interest in violation of the
Securities Act of 1933 or any other applicable federal or state law.
(b) Each Partner represents and warrants that (i) it is not acquiring its
Interest with funds of a pension plan subject to ERISA, and (ii) its acquisition
of its Interest does not and will not result in or create a prohibited
transaction under, or result in the Partnership becoming a "party in interest"
as defined in Section 3(14) of, ERISA, or otherwise result in any other holder
of an Interest or the assets of the Partnership being subject to such statute.
Section 10.08 Amendment of Certificate of Limited Partnership. The
Certificate of Limited Partnership of the Partnership may be amended or
supplemented by the Managing Partner without the prior agreement of the other
Partners whenever permitted by law.
Section 10.09 Governing Law. This Agreement shall be governed by and be
construed in accordance with the internal laws of the State and without
reference to any conflict of law or choice of law principles of the State that
might apply the substantive law of another jurisdiction.
Section 10.10 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same instrument.
Section 10.11 Limitation on Rights of Others. No Person other than a
Partner is, nor is it intended that any such other Person be treated as, a
direct, indirect, intended or incidental third party beneficiary of this
Agreement for any purpose whatsoever, nor shall any other Person have any legal
or equitable right, remedy or claim under or in respect of this Agreement.
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Section 10.12 Construction; Gender; Number. This Agreement has been fully
negotiated by the parties hereto and shall be construed and interpreted as if
prepared by all the parties jointly, rather than by one or more, but less than
all, of them. Any rule of construction to the effect that any ambiguity shall be
interpreted in the manner least favorable to the drafting party shall not apply
to this Agreement. As used in this Agreement, the masculine, feminine or neuter
gender, and the singular or plural number, shall be deemed to be or include the
other genders or number, as the case may be, whenever the context so indicates
or requires.
Section 10.13 Remedies Not Exclusive. Whenever the Partnership or any
Partner exercises one or more of the remedies provided for herein, such exercise
shall not preclude the exercise of any one or more remedies otherwise available
to it hereunder (unless this Agreement expressly provides otherwise), under
contract, at law, in equity or otherwise.
Section 10.14 Power of Attorney.
(a) Each Partner constitutes and appoints the Managing Partner its true and
lawful attorney with full power of substitution and resubstitution to make,
execute, sign, acknowledge and file amendments and modifications to the
Certificate of Limited Partnership for the Partnership and/or other certificates
related thereto, and upon the Partnership's termination, certificates of
dissolution and termination of the Partnership, and also to make, execute, sign,
acknowledge and file such other certificates and statements as may be required
by law or as deemed by the Managing Partner to be in the best interests of the
Partnership. The grant of a power of attorney hereunder is a special power of
attorney coupled with an interest and shall survive a Partner's disability,
incompetence, death or assignment by such Partner of its Interest pursuant to
this Agreement.
(b) No document or amendment executed by the Managing Partner pursuant to
Section 10.14(a) shall, in the absence of the prior consent of all Partners, (i)
reduce the obligations of the General Partners, (ii) affect the rights or
restrictions regarding the assignability of Interests in the Partnership by
Limited Partners, (iii) modify the term of the Partnership, (iv) amend this
Section 10.14(b), or (v) reduce the rights or interests or enlarge the
obligations of the Partners other than the General Partners.
(c) In exercising the power of attorney granted pursuant to this Section
10.14, the Managing Partner may act on behalf of a Partner singly or on behalf
of all or any group of Partners collectively to the extent permitted by law.
(d) The Managing Partner shall promptly notify all Partners of any
documents or amendments executed pursuant to this Section 10.14.
Section 10.15 Attorneys and Other Consultants. Notwithstanding anything to
the contrary contained herein, each of the Partners acknowledges that all
attorneys and other consultants retained by the Partnership also may have been
and may be engaged by one or more of the Partners as their attorneys and other
consultants, respectively. Each of the Partners hereby waives any claim of
conflict-of-interest that the Partner otherwise might have as a result of such
31
engagement. In addition, each of the Partners hereby approves the engagement of
such attorneys and consultants by one or more of the Partners individually, and
cessation of representation and other business arrangements with the Partnership
by such attorneys and other consultants if any circumstances arrives in which,
in the opinion of any Partner for whom such attorneys or consultants has been
engaged, it would be inappropriate for such attorneys or consultants, as the
case may be, to represent or otherwise act for both the Partnership and such
Partner.
Section 10.16 Costs of Litigation. If any litigation, arbitration,
mediation, reference or other proceeding to resolve a dispute among two or more
Partners arising out of this Agreement, the interpretation or enforcement
hereof, or the transactions contemplated hereby, is commenced and a judgment
therein is rendered by a court, an arbitrator, a mediator or any other Person
having requisite jurisdiction, the prevailing parties in such dispute shall be
entitled to reimbursement from the other parties thereto of all costs of such
proceedings, and the tribunal shall award such costs (including, without
limitation, attorneys' fees and disbursements, court costs and costs of the
arbitrator or mediator, as applicable, at trial and on appeal) to the prevailing
parties, which award shall not be computed in accordance with any schedule, but
shall be in an amount necessary to fully reimburse the prevailing parties for
all costs actually incurred by them in good faith, regardless of the size of the
judgment or award.
Section 10.17 Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the Partners and their respective successors and
permitted assigns.
IN WITNESS WHEREOF, the Partners have duly executed this Agreement as of
the day and year first above written.
GENERAL PARTNER
CJG Management, Ltd.
By: Managed Citrus, Inc.
Its General Partner
By:____________________________
Xxxxxxxxx Xxxxxxx, President
LIMITED PARTNER
Dated:_______________ _____________________________________________
(Signature)
_____________________________________________
Printed Name. (If signing in a representative
capacity, please sign as such and show the
person/entity for whom you are signing.)
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