DALLAS/XXXX HILLS, L.P.
AMENDED AND RESTATED AGREEMENT
OF LIMITED PARTNERSHIP
TABLE OF CONTENTS
ARTICLE I DEFINED TERMS
ARTICLE II GENERAL
2.1 Continuation of the Partnership
2.2 Principal Office
2.3 Principal Place of Business; Resident Agent
2.4 Term
2.5 Purpose
ARTICLE III CAPITAL CONTRIBUTIONS
3.1 Initial Capital Contributions; General Partner
3.2 Withdrawal of Withdrawing Limited Partners; Admission of
Limited Partners
3.3 Special Limited Partner
3.4 Investor Limited Partner
3.5 [Reserved]
3.6 Treatment of Other Advances
3.7 Capital Accounts; No Interest; Withdrawal
3.8 Liability of Limited Partners
3.9 Provision of Other Amounts
3.10 Outside Activities of Limited Partners
ARTICLE IV COMPLIANCE WITH AUTHORITY REQUIREMENTS; PARTNERSHIP
BORROWINGS
4.1 Authority Requirements
4.2 Authorization to the General Partner
4.3 Right to Mortgage
4.4 Loans
ARTICLE V RIGHTS, POWERS AND OBLIGATIONS OF THE GENERAL PARTNER AND
LIMITATIONS THEREON; PARTNERS' ACTIVITIES
5.1 Exercise of Management
5.2 Duties and Authority of General Partner
5.3 Delegation of General Partner Authority; Tax Matters
Partner
5.4 Lease, Conveyance or Refinancing of Assets of the
Partnership
5.5 Restrictions on Authority
5.6 Activities of Partners
5.7 Dealing with Affiliates
5.8 Indemnification and Liability of the General Partners
5.9 Representations and Warranties
5.10 Additional Covenants of General Partner
5.11 Obligation to Repair and Rebuild Apartment Complex
ARTICLE VI CERTAIN PAYMENTS
6.1 Development Fee
6.2 Consulting Monitoring Fee
6.3 Annual Local Administrative Fee
6.4 Supervisory Management Fee
6.5 Asset Management Fee
6.6 Amounts Earned on $1,500,000 Escrow
6.7 Contractor Fee
ARTICLE VII ACCOUNTING, REPORTS, BOOKS, BANK ACCOUNTS AND FISCAL YEAR
7.1 Bank Accounts
7.2 Books of Account; Fiscal Year
7.3 Reports
7.4 Other Reports
7.5 Tax Returns and Tax Treatment
ARTICLE VIII MANAGEMENT AGENT
8.1 Management Agent and Management Fee
ARTICLE IX PROFITS AND LOSSES; DISTRIBUTIONS
9.1 Allocations of Profits and Losses
9.2 Distribution and Application of Cash Flow and Proceeds
From Sale or Refinancing Transactions
9.3 Overriding Allocations of Profits and Losses
ARTICLE X TRANSFER OF LIMITED PARTNER INTERESTS; SUBSTITUTED
PARTNERS; ASSIGNEES
10.1 Assignment of Limited Partner Interests
10.2 Substituted Partners; Admission
10.3 Assignees
ARTICLE XI WITHDRAWAL OF A GENERAL PARTNER; NEW GENERAL PARTNERS
11.1 Withdrawal
11.2 Effect of Withdrawal; Election to Continue Business
11.3 Formation of New Partnership
11.4 Special Removal Rights
11.5 Additional General Partners
11.6 Amendment of Schedule and Agreement
11.7 Survival of Liabilities
ARTICLE XII DISSOLUTION AND TERMINATION OF THE PARTNERSHIP
12.1 Events Which Cause a Dissolution
12.2 Actions of Liquidating Agent Upon Dissolution
12.3 Statements on Termination
12.4 Priority on Liquidation; Distribution of Non-Liquid Assets
12.5 Orderly Liquidation
12.6 No Goodwill Value
ARTICLE XIII FOREIGN PARTNERS
13.1 Certification of Non-Foreign Status
13.2 Withholding of Certain Amounts Attributable to Interests
of Foreign Partners
ARTICLE XIV MISCELLANEOUS
14.1 Law Governing
14.2 Power of Attorney
14.3 Counterparts
14.4 Partners Independently Bound
14.5 Separability of Provisions
14.6 Address and Notice
14.7 Computation of Time
14.8 Titles and Captions
14.9 Entire Agreement
14.10 Agreement Binding
14.11 Parties in Interest
14.12 Amendments; Other Actions
14.13 Survival of Representations, Warranties and Agreements
14.14 Further Assurances
14.15 Remedies Cumulative
14.16 Meetings
14.17 Class Z General Partner
DALLAS/XXXX HILLS, L.P.
AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP
AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP (this "Agreement"),
dated as of the ____ day of March, 1997, by and among XXXX HILLS HOMES FOR
AMERICA, INC. as General Partner ("HOMES" or the "General Partner") XXXXX
X. XXXX ("Xxxx" or the "Class Z General Partner"), RELATED CORPORATE SLP
L.P., a Delaware limited partnership (the "Special Limited Partner"), and
RELATED CORPORATE PARTNERS V, L.P., a Delaware limited partnership (the
"Investor Limited Partner" and, together with the Special Limited Partner,
the "Limited Partners"), and XXX-XXX XX - Xxxx Hills, LTD., a Texas limited
partnership, JOCK P.R. LIVING TRUST 3/28/89, 0000 XXXXXX XXXX, INC., a
Texas corporation and XXXXXXX X. XXXXXX, as Withdrawing Limited Partners.
W I T N E S S E T H :
WHEREAS, the Partnership was formed as a limited partnership under the laws
of the State pursuant to the certificate of limited partnership ("Original
Certificate") by and among Xxxx, as general partner, and Xxx-Xxx XX-Xxxx
Hills, Ltd., a Texas limited Partnership, Jock P.R. Living Trust 3/28/89,
0000 Xxxxxx Xxxx, Inc., a Texas corporation, and Xxxxxxx X. Xxxxxx, as
original limited partners. The Original Certificate was filed with the
Filing Office on October 18, 1995 and was amended on April 17, 1996;
WHEREAS, the Investor Limited Partner was admitted to the Partnership as a
limited partner as of the Admission Date (as hereinafter defined);
WHEREAS, the parties hereto desire to enter into this Agreement to provide
for, among other things, (i) the continuation of the Partnership, (ii) the
withdrawal of the Withdrawing Limited Partners from the Partnership, (iii)
the admission of the Limited Partners and HOMES into the Partnership, (iv)
the payment of Capital Contributions by the Investor Limited Partner to the
Partnership, (v) the reallocation of Profits, Losses, Credits and
distributions of Cash Flow and other proceeds of the Partnership among the
Partners, (vi) the respective rights, obligations and interests of the
parties hereto to each other and to the Partnership and (vii) certain other
matters;
NOW, THEREFORE, in consideration of the covenants and agreements
hereinafter set forth, the parties hereto agree that the Initial Agreement
is hereby amended and restated in its entirety to read as follows:
ARTICLE I
DEFINED TERMS
Capitalized terms used in this Agreement shall, unless the context
otherwise requires, have the meanings specified in this Article I. Certain
additional defined terms are set forth elsewhere in this Agreement and,
where referenced, in the Contribution Agreement and in the Exhibits
thereto.
"Accountants" means such firm or firms of independent certified
public accountants as may be engaged by the General Partners with the
Consent of the Special Limited Partner from time to time, and shall
initially be Xxxxxx X. Xxxxxxx & Company, P.C., having an address at
000 Xxxx Xxx Xxxxxxx Xxxx., Xxxxx 0000, Xxxxxx, Xxxxx 00000.
"Adjusted Capital Account Deficit" means, with respect to any
Partner, the deficit balance, if any, in such Partner's Capital
Account as of the end of any fiscal year of the Partnership, after
giving effect to the following adjustments:
credit to such Capital Account any amounts which such
Partner is obligated to restore thereto pursuant to any provision
of this Agreement or is deemed to be obligated to restore thereto
pursuant to the penultimate sentences of Sections 1.704-2(g)(1)
and 1.704-2(i)(5) of the Regulations; and debit to such Capital
Account the items described in Section 1.704-1(b)(2)(ii)(d)(4),
1.704-1(b)(2)(ii)(d)(5), and 1.704-1(b)(2)(ii)(d)(6) of the
Regulations.
The foregoing definition of Adjusted Capital Account Deficit
is intended to comply with the provisions of Section
1.704-1(b)(2)(ii)(d) of the Regulations and shall be interpreted
consistently therewith.
"Admission Date" means the day on which the Investor Limited Partner
acquires its Interest pursuant to the terms of the Contribution
Agreement.
"Affiliate" means, when used with reference to a specified Person, any
(i) Person that directly or indirectly controls or is controlled by or
is under common control with the specified Person, (ii) Person that is
an officer of, partner in or trustee of, or serves in a similar
capacity with respect to, the specified Person or of which the
specified Person is an officer, partner or trustee, or with respect to
which the specified Person serves in a similar capacity and (iii)
Person that, directly or indirectly, is the beneficial owner of 10% or
more of any class of equity securities of the specified Person or of
which the specified Person is directly or indirectly the owner of 10%
or more of any class of equity securities. "Affiliate" of the
Partnership or a General Partner does not include a Person who is a
partner in one or more partnerships or joint ventures with the
Partnership or any other Affiliate of the Partnership if such a Person
is not otherwise an Affiliate of the Partnership or such General
Partner.
"Agreement" means this Amended and Restated Agreement of Limited
Partnership, as it may be amended from time to time.
"Apartment Complex" means the real property owned by the Partnership
located in Dallas, Texas as more fully described in the Title Policy
(the "Land"), together with (i) 41 buildings containing 386 apartments
and ancillary and appurtenant facilities (including those intended for
commercial use, if any) being constructed thereon and (ii) all
furnishings, equipment and personal property used in connection with
the operation thereof ((i) and (ii), collectively, the
"Improvements").
"Assignment" (including the verb form "Assign" and the adjectival form
"Assigned") means a valid sale, exchange, transfer or syndication or
other disposition of all or any portion of an Interest. "Assignor"
means a Partner who makes an Assignment and "Assignee" means a Person
who receives an Assignment.
"Authority" means any Government Agency, together with any applicable
housing finance authority, which is a public body corporate and
politic created by the State, or other agency authorized to issue
bonds or other evidence of indebtedness to finance residential housing
development. To the extent applicable, Authority shall also mean any
government mortgage insurance or co-insurance agency, or any other
governmental body or agency having jurisdiction over the operations of
the Apartment Complex or that provides assistance to the Partnership,
the Apartment Complex and/or its tenants and imposes requirements in
connection with such assistance.
"Bankruptcy" or "Bankrupt" means, with respect to any Partner, such
Partner making an assignment for the benefit of creditors, becoming a
party to any liquidation or dissolution action or proceeding with
respect to such Partner or any bankruptcy, reorganization, insolvency
or other proceeding for the relief of financially distressed debtors
with respect to such Partner, or a receiver, liquidator, custodian or
trustee being appointed for such Partner or a substantial part of such
Partner's assets and, if any of the same occur involuntarily, the same
not being dismissed, stayed or discharged within ninety (90) days; or
the entry of an order for relief against such Partner under Title 11
of the United States Code. A Partner shall be deemed Bankrupt if the
Bankruptcy of such Partner shall have occurred and be continuing.
"Capital Account" means, with respect to any Partner, the Capital
Account maintained for such Partner in accordance with the following
provisions:
to each Partner's Capital Account there shall be credited such
Partner's Capital Contributions, such Partner's distributive share of
Profits, and any items in the nature of income or gain which are
specially allocated pursuant to Article IX hereof, and the amount of
any Partnership liabilities assumed by such Partner or which are
secured by any property distributed to such Partner;
to each Partner's Capital Account there shall be debited the amount of
cash and the Gross Asset Value of any property distributed to such
Partner pursuant to any provision of this Agreement, such Partner's
distributive share of Losses, and any items in the nature of expenses
or losses which are specially allocated pursuant to Article IX hereof,
and the amount of any liabilities of such Partner assumed by the
Partnership or which are secured by any property contributed by such
Partner to the Partnership;
in the event any Interest is Assigned in accordance with the terms of
this Agreement, the Assignee shall succeed to the Capital Account of
the Assignor to the extent it relates to the Assigned Interest; and
in determining the amount of any liability for purposes of clauses (i)
and (ii) above, there shall be taken into account Section 752(c) of
the Code and any other applicable provisions of the Code and the
Regulations.
The foregoing provisions and the other provisions of this Agreement
relating to the maintenance of Capital Accounts are intended to comply with
Section 1.704-1(b) of the Regulations, and shall be interpreted and applied
in a manner consistent with such Regulations. In the event the General
Partners shall determine that it is prudent to modify the manner in which
the Capital Accounts, or any debits or credits thereto (including, without
limitation, debits or credits relating to liabilities which are secured by
contributed or distributed property or which are assumed by the Partnership
or the Partners), are computed in order to comply with such Regulations,
the General Partners may make such modification with the Consent of the
Special Limited Partner, provided that it is not likely to have a material
effect on the amounts distributable to any Partner pursuant to Section 12.4
hereof upon the dissolution of the Partnership. The General Partners, with
the Consent of the Special Limited Partner, also shall (a) make any
adjustments that are necessary or appropriate to maintain equality between
the aggregate Capital Accounts of the Partners and the aggregate amount of
Partnership capital reflected on the Partnership's balance sheet, as
computed for book purposes in accordance with Section 1.704-1(b)(2)(iv)(q)
of the Regulations, (b) make any appropriate modifications in the event
unanticipated events might otherwise cause this Agreement not to comply
with Section 1.704-1(b) of the Regulations, and (c) make any appropriate
modifications to the Capital Accounts of the Partners to reflect
revaluations of the Apartment Complex pursuant to Section
1.704-1(b)(2)(iv)(f) of the Regulations.
"Capital Contributions" means, with respect to any Partner, the amount
of money (other than any amounts contributed pursuant to a Partner's
obligations under the Development Deficit Guaranty Agreement) and the
initial Gross Asset Value of any property (other than money) contributed to
the Partnership with respect to the Interest held by such Partner pursuant
to the terms of this Agreement in accordance with Schedule A attached
hereto. Any reference in this Agreement to the Capital Contribution of a
then Partner shall include the contributions to the capital of the
Partnership made by any predecessor in interest of such Partner in respect
of such Interest of such Partner.
"Capital Note" means the promissory note issued by the Investor
Limited Partner to the Partnership in the form annexed hereto as Exhibit B
pursuant to Section 3.4 hereof.
"Cash Expenditures" means all disbursements of cash during the year
(excluding distributions to Partners), including, without limitation,
payment of operating expenses, payment of principal and interest on the
Partnership's indebtedness (excluding payments of principal and interest on
Voluntary Loans and Operating Loans), cost of repair and restoration of the
Apartment Complex, amounts allocated to reserves (including any amounts
required to be funded as operating reserves or replacement reserves) by the
General Partner and the payment of the fees set forth in Article VI hereof.
In addition, the net increase during the year in any escrow account or
reserve maintained by or for the Partnership shall be considered a cash
expenditure during the year. Cash Expenditures payable to Partners or
Affiliates of Partners shall be paid after Cash Expenditures payable to
third parties.
"Cash Flow" means the excess of Cash Receipts over Cash Expenditures.
Cash Flow shall be determined separately for each fiscal year or portion
thereof.
"Cash Receipts" means all cash receipts of the Partnership from
whatever source derived other than from a Sale or Refinancing Transaction,
including, without limitation, cash from operations, any amounts
attributable to construction or development savings, and Capital
Contributions. In addition, the net reduction in any year in the amount of
any escrow account or reserve maintained by or for the Partnership shall be
considered a cash receipt of the Partnership for such year. Notwithstanding
the foregoing, at the election of the General Partners, Cash Receipts
received near the end of a fiscal year and intended for use in meeting the
Partnership's obligations (including the cost of acquiring assets or paying
debts or expenses) in the subsequent fiscal year shall not be deemed
received until such following year.
"Certificate" means the Original Certificate as amended by any
amendments thereto filed in the Filing Office in accordance with the
Uniform Act.
"Class" means a specific class or grouping of Partners (i.e., the
General Partners or the Investor Limited Partner and the Special Limited
Partner).
"Class Z General Partner" means Xxxx.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time, or any successor statute.
"Compliance Period" shall have the meaning provided in Section
42(i)(1) of the Code.
"Consent of the Special Limited Partner" means the prior written
consent or approval of the Special Limited Partner, which may be granted or
withheld in its sole discretion.
"Contractor" means KRR Construction, and its successors and assigns.
"Contribution Agreement" means the Contribution Agreement dated as of
the date hereof among the General Partner, the Partnership (as constituted
immediately prior to the execution of this Agreement) and the Investor
Limited Partner.
"CPI" means the National Consumer Price Index for Urban Wage Earners
and Clerical Workers (1982 - 1984 = 100) published by the United States
Department of Labor, Bureau of Labor Statistics. If the described index
shall no longer be published, another generally recognized as authoritative
shall be substituted with the Consent of the Special Limited Partner.
"Credit" or "Credits" means the low income housing tax credit
allowable under Section 42 of the Code.
"Credit Agency" shall mean Texas Department of Housing and Community
Affairs.
"Credit Amount" means $350,260 of Credits per annum.
"Credit Conditions" means, for the duration of the Compliance Period,
any and all restrictions including, but not limited to, applicable federal,
state and local laws, rules and regulations, which must be complied with in
order to qualify for the Credits or to avoid an event of recapture in
respect of the Credits.
"Credit Period" shall have the meaning specified in Section 42 of the
Code.
"Credit Reduction Payments" shall mean an amount equal to the present
value cost to the Investor Limited Partner (assuming a 15% discount rate)
of a difference (a "Credit Reduction") between the amount of Credits
received by the Partnership and allocated to the Limited Partners and
99.99% of the amounts of Credits set forth in Exhibit A to the Recapture
Guaranty Agreement, as such amounts are adjusted pursuant to Section
3.4.B(ii) hereof, which arises as a result of a Credit Reduction other than
in connection with a Tax Credit Recapture Event (as such term is defined in
the Recapture Guaranty Agreement), which occurs after the last Note Payment
Date (as such term is defined in the Contribution Agreement). Credit
Reduction Payments shall not be required to the extent amounts equal to
such payments have been paid previously to the Limited Partners pursuant to
the Recapture Guaranty Agreement or pursuant to Section 9.2.D hereof.
"Depreciation" means, for each fiscal year of the Partnership or other
period, an amount equal to the depreciation, amortization, or other cost
recovery deduction allowable with respect to an asset for such fiscal year
or other period, except that if the Gross Asset Value of an asset differs
from its adjusted basis for Federal income tax purposes at the beginning of
such fiscal year or other period, Depreciation shall be an amount which
bears the same ratio to such beginning Gross Asset Value as the Federal
income tax depreciation, amortization, or other cost recovery deduction for
such fiscal year or other period bears to such beginning adjusted tax
basis; provided, however, that if the Federal income tax depreciation,
amortization, or other cost recovery deduction for such fiscal year is
zero, Depreciation shall be determined with reference to such beginning
Gross Asset Value using any reasonable method selected by the General
Partners.
"Developer" means Xxxx.
"Development Deficit" shall have the meaning provided in the
Development Deficit Guaranty Agreement.
"Development Deficit Guaranty Agreement" means the agreement of the
Guarantor to fund "Development Deficits", which shall be substantially in
the form of Exhibit E annexed to the Contribution Agreement.
"Entity" means any general partnership, limited partnership,
corporation, joint venture, trust, business trust, cooperative or
association.
"Filing Office" means the Office of the Secretary of State of the
State.
"Foreign Partner" means a Partner who at the time of acquisition of
such Partner's interest is a United States citizen or a resident alien of
the United States and whose status subsequently changes to that of a
non-resident alien of the United States.
"Foreign Person" means a non-resident alien, foreign corporation,
foreign partnership, foreign trust or foreign estate, within the meaning of
Sections 897, 1445 and 1446 of the Code.
"General Partner" or "General Partners" means any or all Persons
designated as General Partners in Schedule A, including, without
limitation, the Managing General Partner, and any Person or Persons who, at
the time of reference thereto, have been admitted as additional or
successor General Partners, in each such Person's capacity as a general
partner of the Partnership. If there is only one General Partner of the
Partnership, the term "General Partners" shall be deemed to refer to such
General Partner. Notwithstanding anything to the contrary herein, the term
General Partner or General Partners shall not include the Class Z General
Partner.
"Government Agency" shall have the meaning set forth in the
Contribution Agreement.
"Governmental Agreements" shall have the meaning set forth in the
Contribution Agreement.
"Governmental Permits" shall have the meaning set forth in the
Contribution Agreement.
"Gross Asset Value" means, with respect to any asset owned by the
Partnership, the asset's adjusted basis for Federal income tax purposes,
except as follows:
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 Partners with the
Consent of the Special Limited Partner;
the Gross Asset Value of each asset shall be adjusted to equal its
gross fair market value, as determined by the General Partners with the
Consent of the Special Limited Partner, as of the following times: (a) the
acquisition of an additional Interest 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 property in respect of its Interest; and (c) the liquidation of
the Partnership within the meaning of Section 1.704-1(b)(2)(ii)(g) of the
Regulations; provided, however, that adjustments pursuant to clauses (a)
and (b) above shall be made only if the General Partners with the Consent
of the Special Limited Partner reasonably determine that such adjustments
are necessary or appropriate to reflect the relative economic interests of
the Partners in the Partnership;
the Gross Asset Value of any asset distributed to any Partner shall be
the gross fair market value of such asset on the date of distribution; and
the Gross Asset Value of each asset shall be increased (or decreased)
to reflect any adjustments to the adjusted basis of such asset pursuant to
Section 734(b) or Section 743(b) of the Code, but only to the extent that
such adjustment is taken into account in determining Capital Accounts
pursuant to Section 1.704-1(b)(2)(iv)(m) of the Regulations and Article IX
hereof; provided, however, that Gross Asset Values shall not be adjusted
pursuant to this clause (iv) to the extent the General Partners determine
that an adjustment pursuant to clause (ii) above is necessary or
appropriate in connection with a transaction that would otherwise result in
an adjustment pursuant to this clause (iv).
If the Gross Asset Value of an asset has been determined or adjusted
pursuant to clause (i), (ii) or (iv) above, such Gross Asset Value shall
thereafter be adjusted by the Depreciation taken into account with respect
to such asset for purposes of computing Profits and Losses.
"Guarantor" means, collectively, the General Partner and Homes For
America Holdings, Inc., a Texas corporation.
"Guaranty Period" means the period during which Guarantor is obligated
to fund any Operating Deficit pursuant to the Operating Deficit Guaranty
Agreement.
"Housing Agency" means the Credit Agency.
"HUD" means the United States Department of Housing and Urban
Development, or any successor Federal agency.
"Improvements" has the meaning specified in the definition of
Apartment Complex.
"Initial Agreement" means the Agreement of Limited Partnership dated
February 9, 1996 among Xxxx as general partner and the Withdrawing Limited
Partner, as limited partner.
"Interest" means the entire ownership interest of a Partner in the
Partnership at any particular time, including the right of such Partner to
any and all benefits to which a Partner may be entitled as provided in this
Agreement, together with the obligations of such Partner to comply with all
terms and provisions of this Agreement.
"Investor Contributions" means $2,787,337 plus the amount of any
Capital Contributions made by or on behalf of the Investor Limited Partner
in addition to those provided for in Section 3.4.A hereof, less the amount
by which the Capital Contribution is reduced pursuant to Section 3.4.B
hereof.
"Investor Limited Partner" means Related Corporate Partners V, L.P., a
Delaware limited partnership, and any person who becomes a Substituted
Limited Partner in respect of any portion of the Interests of the Investor
Limited Partner as provided in Article X hereof. The term "Investor Limited
Partner" does not include the Special Limited Partner.
"Involuntary Withdrawal" means any Withdrawal caused by the death,
adjudication of insanity or incompetence, or Bankruptcy of a General
Partner, or the removal of such General Partner pursuant to Section 11.4.C
hereof.
"Land" has the meaning specified in the definition of Apartment
Complex.
"Lender" means any lender under any mortgage constituting the
Mortgage.
"Limited Partners" means the Investor Limited Partner and the Special
Limited Partner and any Substituted Limited Partner.
"Liquidating Agent" shall have the meaning provided in Section 12.2
hereof.
"Management Agent" means Autumn Gate Properties, Inc. or its
successors or any other person approved by each Authority the approval of
which is required and selected to provide management services to the
Apartment Complex from time to time in accordance with Article VIII hereof.
"Management Agreement" means the agreement between the Partnership and
the Management Agent for the management of the Apartment Complex entered
into pursuant to the authority granted by Article VIII hereof.
"Managing General Partner" means the General Partner, initially, and
its successors and assigns, as Managing General Partner pursuant to the
provisions of Section 5.3 hereof; provided, however, if there is only one
General Partner, such person shall be the Managing General Partner.
"Mortgage" means any mortgage or deed of trust securing an
indebtedness of the Partnership and encumbering the Apartment Complex, as
such indebtedness may be increased, decreased or refinanced in accordance
with this Agreement and the Project Documents. Where the context admits,
the term "Mortgage" shall include any mortgage, deed, deed of trust, note,
regulatory agreement, security agreement, assumption agreement or other
instrument executed in connection with a Mortgage Note which is binding on
the Partnership; and in case any Mortgage is replaced or supplemented by
any subsequent mortgage or mortgages, the term "Mortgage" shall refer to
any such subsequent mortgage or mortgages.
"Mortgage Note" means any promissory note held by a Lender evidencing
the indebtedness secured by the Mortgage. "Nonrecourse Deductions" has the
meaning set forth in Section 1.704-2(b)(1) of the Regulations.
"Nonrecourse Liability" has the meaning set forth in Section
1.704-2(b)(3) of the Regulations.
"Operating Deficit" shall have the meaning provided in the Operating
Deficit Guaranty Agreement.
"Operating Deficit Guaranty Agreement" means the agreement of the
Guarantor to fund Operating Deficits, which shall be substantially in the
form of Exhibit F annexed to the Contribution Agreement.
"Operating Loans" means loans made by the Guarantor to the Partnership
pursuant to the Operating Deficit Guaranty Agreement to fund Operating
Deficits occurring during the Guaranty Period, which loans do not bear
interest and are repayable only as provided in Article IX hereof.
"Other Guarantees" or "Guarantees" shall mean any guarantees made by
the Guarantor pursuant to the Contribution Agreement.
"Partner" or "Partners" means any or all of the General Partners and
the Limited Partners.
"Partner Nonrecourse Debt" has the meaning set forth in Section
1.704-2(b)(4) of the Regulations.
"Partner Nonrecourse Debt Minimum Gain" has the meaning set forth in
Section 1.704-2(i)(2) of the Regulations.
"Partner Nonrecourse Deductions" has the meaning set forth in Section
1.704-2(i)(1) of the Regulations.
"Partnership" means the limited partnership governed by this
Agreement, as such limited partnership may from time to time be amended or
reconstituted.
"Partnership Minimum Gain" shall have the meaning set forth in Section
1.704-2(b)(2) of the Regulations.
"Permanent Lender" shall have the meaning set forth in the
Contribution Agreement.
"Permanent Loan" shall have the meaning set forth in the Contribution
Agreement.
"Person" means any individual or Entity, and the heirs, executors,
administrators, legal representatives, successors and assigns of such
Person as the context may require.
"Prime Rate" means the rate of interest publicly announced from time
to time by Chemical Bank, New York, New York, as its prime rate.
"Profits" and "Losses" means, for each fiscal year of the Partnership
or other period, an amount equal to the Partnership's taxable income or
loss for such year or period, determined in accordance with Section 703(a)
of the Code (for this purpose, all items of income, gain, loss, or
deduction required to be stated separately pursuant to Section 703(a)(1) of
the Code shall be included in taxable income or loss), with the following
adjustments: any income of the Partnership that is exempt from Federal
income tax and not otherwise taken into account in computing Profits or
Losses shall be added to such taxable income or loss;
any expenditures of the Partnership described in Section 705(a)(2)(B)
of the Code or treated as Section 705(a)(2)(B) expenditures pursuant to
Section 1.704-1(b)(2)(iv)(i) of the Regulations and not otherwise taken
into account in computing Profits or Losses, shall be subtracted from such
taxable income or loss;
in the event the Gross Asset Value of any Partnership asset is
adjusted pursuant to clause (ii) or (iii) of the definition thereof, the
amount of such adjustment shall be taken into account as gain or loss from
the disposition of such asset for purposes of computing Profits or Losses;
gain or loss resulting from any disposition of Partnership property
with respect to which gain or loss is recognized for Federal income tax
purposes shall be computed by reference to the Gross Asset Value of the
property disposed of, notwithstanding that the adjusted tax basis of such
property differs from its Gross Asset Value;
in lieu of the depreciation, amortization, and other cost recovery
deductions taken into account in computing such taxable income or loss,
there shall be taken into account Depreciation for such fiscal year or
other period; and
notwithstanding any other provisions hereof, any items which are
specially allocated pursuant to Article IX hereof shall not be taken into
account in computing Profits or Losses.
"Project Documents" means the Contribution Agreement, the Construction
Contract, the Governmental Agreements, the Title Policy, the Management
Agreement, the Loan Documents (as such term is defined in the Contribution
Agreement), and any other document related to the financing, development,
construction, use or operation of the Apartment Complex, as any such
documents may be amended from time to time.
"Regulations" means the Income Tax Regulations promulgated under the
Code.
"Regulatory Agreement" means that certain Declaration of Land Use
Restrictive Covenants For Low-Income Housing Credits entered into on
October 1, 1996 by and between the Credit Agency and the Partnership.
"Required Reserve Amount" means (i) $285 per unit per annum for years
one through three of the Compliance Period and (ii) $200 per unit per annum
for years four through fifteen of the Compliance Period.
"Return Amount" shall have the meaning ascribed to such term in
Section 9.2.D.
"Sale or Refinancing Transaction" means any of the following items or
transactions not in the ordinary course of business: a sale, transfer,
exchange or other disposition of all or substantially all of the assets of
the Partnership, a condemnation of, or a casualty at, the Apartment Complex
or any part thereof, a claim against a title insurance company, the
refinancing of any Mortgage Note or other indebtedness of the Partnership
and any similar item or transaction; provided, however, that neither
distributions which are deemed returns of capital for Federal income tax
purposes nor the payment of Capital Contributions by the Partners shall be
included within the meaning of the term "Sale or Refinancing Transaction."
"Sale or Refinancing Transaction Proceeds" means all cash receipts of
the Partnership arising from a Sale or Refinancing Transaction (including
principal and interest received on a debt obligation received as
consideration, in whole or in part, on a Sale or Refinancing Transaction)
less any deductibles or expenses incurred in connection therewith.
"Special Limited Partner" means Related Corporate SLP L.P., and its
successors and assigns.
"State" means the State of Texas.
"Substituted Partner" means any transferee of the Interest of a
Partner who is admitted to the Partnership as a successor partner in
respect of the Interest of such Partner in accordance with Article X.
"Tax Matters Partner" means the Partner designated from time to time
as the Tax Matters Partner of the Partnership pursuant to Section 5.3.D
hereof.
"Title Policy" means the Policy of Title Insurance to be issued
pursuant to Title Commitment No. TC96-83715 of Security Union Title
Insurance Company and all the documents relating thereto.
"Total Credit Amount" means $3,473,412 of Credits.
"Unavoidable Events" means strikes, acts of God, governmental
restrictions (other than those contained in the Governmental Agreements),
severe and unusual shortages of labor or materials, enemy action, riot,
civil commotion, fire, unavoidable casualty or other causes beyond the
reasonable control of a party. Lack of funds shall not be deemed a cause
beyond the control of a party.
"Uniform Act" means the Uniform Limited Partnership Act, or its
equivalent, as it may be adopted or amended from time to time by the State,
or any successor statute governing the operation of limited partnerships.
"United States Real Property Interest" means any direct or indirect
interest in United States real property as defined in Section 897(c) of the
Code and the Regulations promulgated thereunder.
"Voluntary Loan" means a voluntary, unsecured interest-bearing loan of
any Partner to the Partnership as described in Section 4.4 hereof.
"Withdrawing" or "Withdrawal" (including the verb form "Withdraw" and
the adjectival forms "Withdrawing" and "Withdrawn") means, as to a General
Partner, the occurrence of the death, adjudication of insanity or
incompetence, Bankruptcy, dissolution or liquidation of such Partner, or
the withdrawal, removal or retirement from the Partnership of such Partner
for any reason, including any Assignment of its Interest and those
situations when a General Partner may no longer continue as a General
Partner by reason of any law or pursuant to any terms of this Agreement.
"Withdrawing Limited Partners" means Xxx-Xxx XX-Xxxx Hills Apartments,
Ltd., a Texas limited partnership, Jock P.R. Living Trust 3/28/89 0000
Xxxxxx Xxxx, Inc., a Texas corporation and Xxxxxxx X. Xxxxxx.
* * * Each definition or pronoun herein shall be deemed to refer to
the singular, plural, masculine, feminine or neuter as the context
requires. Words such as "herein," "hereinafter," "hereof," "hereto" and
"hereunder," when used with reference to this Agreement, refer to this
Agreement as a whole, unless the context otherwise requires.
ARTICLE II
GENERAL
2.1 Continuation of the Partnership.
The Partnership shall be continued as a limited partnership pursuant
to this Agreement. The name of the Partnership shall continue to be
Dallas/Xxxx Hills, L.P. or such other name selected by the General
Partner with the Consent of the Special Limited Partner as may be
acceptable to the appropriate recording officials of the State.
As soon after the execution of this Agreement as is practicable, the
General Partner shall (if required by the Uniform Act) file this
Agreement in accordance with the Uniform Act and/or amend and file the
Certificate to reflect the matters set forth herein. The General
Partner shall from time to time take all such other actions as may be
deemed by them to be necessary or appropriate to (i) effectuate and
permit the continuation of the Partnership as a limited partnership
under the laws of the State, (ii) enable the Partnership to do
business in the state where the Apartment Complex is located and (iii)
protect the limited liability of the Limited Partners under the laws
of the State and of the state where the Apartment Complex is located,
including the preparation and filing of such amendments to this
Agreement and any other certificate, document or instrument as may be
required under the laws of the State and of the state where the
Apartment Complex is located. The Partners shall execute such
certificates, documents and instruments and take such other action as
may be necessary to enable the General Partner to fulfill its
responsibilities under this Section 2.1.B. The power of attorney
granted in Section 14.2 hereof may be exercised by the General Partner
to effect the provisions of this Section 2.1.B.
2.2 Principal Office. The principal office of the Partnership shall be
located at c/o Homes for America Holdings, Inc., 000-0 Xxxx 000xx
Xxxxxx, Xxxxxxxxx, Xxx Xxxx 00000. The General Partner may maintain
such other offices on behalf of the Partnership in the State as they
may from time to time deem advisable. The Partnership's books and
records will be made available to the Investor Limited Partner or its
representatives at its principal office at all times and for any
purpose. The principal office of the Partnership may be changed by the
General Partner, in which event written notice thereof shall be given
by the General Partner to all the other Partners.
2.3 Principal Place of Business; Resident Agent. The principal place
of business of the Partnership shall be c/o Homes for America
Holdings, Inc., 000-0 Xxxx 000xx Xxxxxx, Xxxxxxxxx, Xxx Xxxx 00000.
Xxx X. Xxxxxxxxx has been appointed the Partnership's resident agent
for the service of process in the State.
2.4 Term. The Partnership shall continue in full force and effect
until the dissolution and termination of the Partnership pursuant to
Article XII hereof.
2.5 Purpose. The specific business and purpose of the Partnership is
the application for and maintenance of the Credits, investment in real
property and the provision of low income housing through the
renovation, rehabilitation, operation (including conversion to
cooperative or condominium form of ownership and the sale of apartment
units, if such action would not cause the Credit to be reduced for any
year during the Credit Period or Compliance Period) and leasing of the
Apartment Complex and any commercial space located therein, and in
connection therewith, subject to and in accordance with the terms
hereof, the permission of each applicable Authority and all
Governmental Agreements, to make and perform contracts and other
undertakings and to engage in any and all activities and transactions
as may be necessary or advisable in connection therewith, including,
but not limited to, the purchase, transfer, mortgage, pledge and
exercise of all other rights, powers, privileges and other incidences
of ownership with respect to the Apartment Complex and to borrow or
raise money without limitation as to amount or manner and to carry on
any and all activities related to any of the foregoing, subject always
to the terms and conditions of this Agreement. The business of the
Partnership shall be limited to the rehabilitation, ownership,
financing, operation and disposition of the Apartment Complex.
In order to carry out its business and purpose under Section 2.5.A
hereof, subject to the terms and conditions hereof, the Partnership is
hereby authorized to:
acquire, own and lease real property, and to hold such property for
investment purposes;
renovate, rehabilitate, own, maintain and operate the Apartment
Complex;
mortgage, lease, transfer and exchange or otherwise convey and
encumber such property and the improvements thereon (including
conversion to cooperative or condominium form of ownership and the
sale of apartment units) in furtherance of any and all of the objects
of its business in connection with the Apartment Complex;
enter into, perform and carry out contracts of any kind necessary to,
or in connection with or incidental to, the construction, renovation,
rehabilitation, ownership, financing, maintenance and operation of the
Apartment Complex, including, but not by way of limitation, any
contracts with any Authority which may be desirable or necessary to
comply with the requirements of such Authority, including any
agreements relating to regulations or restrictions contained in any
mortgages as to rents, sales, charges, capital structure, rate of
return and methods of operation;
rent dwelling units and commercial space, if any, in the Apartment
Complex from time to time in accordance with applicable Federal, state
and local regulations, in such a manner so as to qualify for the
Credit, collect the rents therefrom, pay the expenses incurred in
connection therewith, and distribute the net proceeds to the Partners,
subject to any requirements which may be imposed by any Authority; and
purchase, transfer, mortgage, pledge and exercise all other rights,
powers, privileges and other incidences of ownership with respect to
the Apartment Complex and borrow or raise money without limitation as
to amount or manner and carry on any and all activities incidental and
appropriate to effectuate the purposes of the Partnership.
ARTICLE III
CAPITAL CONTRIBUTIONS
3.1 Initial Capital Contributions; General Partner. The Capital
Contribution of the Partners as of the Admission Date are set forth in
Schedule A, and as follows:
Partner Capital Contribution
General Partner $1.00
Special Limited Partner $1.00
Investor Limited Partner $2,211,910
Class Z General Partner $1,500,000
The General Partner shall not be required to make any capital
contributions to the Partnership, except (i) to the extent provided in
Section 3.7.B and (ii) insofar as the same may be required pursuant to
the Development Deficit Guaranty Agreement in connection with the
completion of construction of the Apartment Complex (it being
understood that such contributions will be deemed to have been already
reflected in the Capital Account of the General Partner and will not
further increase the General Partner's Capital Account).
3.2 Withdrawal of Withdrawing Limited Partners; Admission of Limited
Partners. The Withdrawing Limited Partners hereby withdraw as Partners
of the Partnership. The Investor Limited Partner and the Special
Limited Partner are hereby admitted to the Partnership as the Limited
Partners. The Withdrawing Limited Partners acknowledge that they (i)
have no further interest as Partners in the Partnership as of the
Admission Date, (ii) have released all claims, if any, against the
Partnership arising out of their participation as Partners and (iii)
shall be deemed to have withdrawn as limited partners of the
Partnership as of such date.
3.3 Special Limited Partner. The Special Limited Partner shall be in a
different class from the Investor Limited Partner and, except as
otherwise expressly stated in this Agreement, shall not participate in
any rights allocable to or exercisable by the Investor Limited Partner
under this Agreement.
3.4 Investor Limited Partner.
Subject to compliance with the terms and conditions hereinafter set
forth, the Investor Limited Partner shall make Capital Contributions
to the Partnership in the amounts and as and when required pursuant to
the terms of the Contribution Agreement.
The amount of the Investor Limited Partner's Capital Contributions was
determined in part upon the amount of Credits that are expected to be
available to the Partnership, and was based upon the assumption that
the Partnership would be eligible to recognize Credits of no less than
the Total Credit Amount. The amount of the qualified basis of the
Apartment Complex and the annual rate of the Credits which the
Partnership will be able to claim with respect thereto will not be
known until the end of the first year of the Credit Period for the
Apartment Complex. Therefore, if the total amount of Credits which the
Partnership will be entitled to recognize and allocate to the Limited
Partners, as certified to the Investor Limited Partner by the
Accountants upon Completion, is (x) less than 99.99% of the Total
Credit Amount, then the amount of the Capital Contributions described
in Section 3.4.A hereof shall be reduced by $0.6830 for each $1.00 by
which 99.99% of the Total Credit Amount exceeds the total Credits
which the Accountants certify as aforesaid that the Partnership will
be entitled to claim and allocate to the Limited Partners or (y) more
than 99.99% of the Total Credit Amount, then the amount of the Capital
Note shall be increased (subject to the availability of funds) by
$0.6830 for each $1.00 by which 99.99% of the Total Credit Amount is
less than the total Credits which the Accountants certify as aforesaid
that the Partnership will be entitled to claim and allocate to the
Limited Partners.
The amounts set forth on Exhibit A to the Recapture Guaranty Agreement
shall be revised to reflect the total amount of Credits which the
Accountants certify pursuant to Section 3.4.B(i) hereof.
Notwithstanding the foregoing provisions of Section 3.4.B(i) hereof,
in the event that any installment of the Limited Partner's Capital
Contribution has not been paid to the Partnership at the time that the
Partnership files a Federal income tax return in which it claims
Credits with respect to the Apartment Complex, the calculation
required by Section 3.4.B(i) hereof (and the adjustment required by
Section 3.4.B(ii) hereof) shall be made by subtracting from the annual
amount of Credits certified by the Accountants to the Limited Partner
upon the Admission Date the portion of such annual Credits which
represents any apartment unit in the Apartment Complex with respect to
which Credits were not claimed on such Federal income tax return. For
these purposes, any Credits which the Partnership will be entitled to
claim in later taxable years as a result of Section 42(f)(3) of the
Code shall be ignored.
The Limited Partners' Capital Contributions shall first be applied to
the payment of the fee specified in Section 6.2.
The Investor Limited Partner's obligation to pay the Capital Note is
non-recourse to the Investor Limited Partner except to the extent of
the Investor Limited Partner's Interest, which shall be pledged as
security for such obligation pursuant to a Pledge Agreement in
substantially the form of Exhibit A attached hereto, and is subject to
satisfaction of the Note Payment Conditions (as such term is defined
in the Contribution Agreement).
3.5 [Reserved]
3.6 Treatment of Other Advances. If any Partner shall advance funds to
the Partnership other than the amount of its Capital Contribution, the
amount of such advance shall not be considered a contribution to the
capital of the Partnership, but shall be deemed either an Operating
Loan or a Voluntary Loan and shall be subject to the provisions of
Section 4.4 hereof.
3.7 Capital Accounts; No Interest; Withdrawal.
Capital Account balances shall be deemed to have already reflected any
contributions by the General Partner, the Class Z General Partner and
their Affiliates that are necessary to fund the completion of
rehabilitation of the Apartment Complex pursuant to the Development
Deficit Guaranty Agreement (i.e., such contributions will not increase
the Capital Account balance of the General Partner.)
No Partner shall have the right to demand a return of his Capital
Contribution, except as otherwise provided in this Agreement. No
Partner shall have priority over any other Partner, either as to
return of its Capital Contribution or as to profits, losses or
distributions, except as otherwise specifically provided herein.
Moreover, the General Partner shall not be personally liable for the
return of the Capital Contribution of any Limited Partner, or any
portion thereof, it being expressly understood that any such return
shall be made solely from assets of the Partnership, nor shall the
General Partner be required to pay the Partnership or any Partner any
deficit in its or any other Partner's Capital Account upon dissolution
or otherwise, it being understood and agreed that any deficit in any
Capital Account shall not be treated as asset of the Partnership;
provided, however, that if on final liquidation, the Capital Account
of the General Partner is negative, the General Partner shall make a
contribution to the capital of the Partnership in an amount equal to
the lesser of (A) the deficit balance in its Capital Account or (B) an
amount equal to the excess of (i) 1.01% of the Capital Contributions
of the Limited Partners over (ii) the Capital Contribution of the
General Partner. Upon dissolution of the Partnership, the Special
Limited Partner shall contribute to the Partnership an amount equal to
the lesser of (A) the deficit balance in the Special Limited Partner's
Capital Account and (B) the cumulative depreciation deductions
allocated to the Special Limited Partner by the Partnership. The
Investor Limited Partner shall not be required to pay to the
Partnership any deficit in its Capital Account upon dissolution or
otherwise, except as provided by law, with respect to third-party
creditors of the Partnership. No interest shall be paid on any Capital
Account or Capital Contribution. No Partner shall have the right to
demand or receive property other than cash for its Interest. Each of
the Partners does hereby agree to, and does hereby, waive any right
such Partner may otherwise have to cause any asset of the Partnership
to be partitioned or to file a complaint or institute any proceeding
at law or in equity seeking to have any such asset partitioned.
Subject to any adjustment in the amount of the Investor's Capital
Contribution pursuant to Section 3.4.B(i), immediately following the
date of this Agreement, the Capital Account of the General Partner
shall be $1.00, of the Investor Limited Partner shall be $2,211,910
(including the Consulting Monitoring Fee), of the Class Z General
Partner shall be $1,500,000 and of the Special Limited Partner shall
be $1.00. The Partnership assets shall be revalued for Capital Account
purposes to reflect such amounts.
3.8 Liability of Limited Partners. Neither the Special Limited Partner
nor the Investor Limited Partner shall be liable for any debts,
liabilities, contracts or obligations of the Partnership, except as
provided by law. Subject to Section 3.7, the Investor Limited Partner
and the Special Limited Partner shall be liable only to make payments
of their Capital Contributions as and when due under this Agreement.
3.9 Provision of Other Amounts. The Partners acknowledge that,
pursuant to the Contribution Agreement, the General Partner is
obligated to indemnify the Partnership against any and all liability
in respect of any and all transfer, gains, income, sales or other
taxes and transfer fees of any kind imposed or asserted with respect
to the acquisition by the Limited Partners of their Interest. No such
amounts shall be treated as loans or contributions to the Partnership,
and the provision of such amounts shall not affect the allocations and
distributions provided for in Article IX in any way whatsoever.
3.10 Outside Activities of Limited Partners. The Limited Partners may
engage or possess interests in other business ventures of every kind
and description for their own account, including, without limitation,
the ownership or management of other real estate projects,
developments or undertakings. Neither the Partnership nor any of the
other Partners shall have any rights by virtue of this Agreement in
such independent business ventures or to income or profits derived
therefrom.
ARTICLE IV
COMPLIANCE WITH AUTHORITY REQUIREMENTS;
PARTNERSHIP BORROWINGS
4.1 Authority Requirements.
During the Compliance Period, the following provisions shall apply:
(i) each of the provisions of this Agreement shall be subject to, and
the General Partner covenants to act in accordance with, the Credit
Conditions and all applicable federal, state and local laws and
regulations; (ii) the Credit Conditions and all such laws and
regulations, as amended or supplemented, shall govern the rights and
obligations of the Partners, their heirs, executors, administrators,
successors and assigns, and they shall control as to any terms in this
Agreement which are inconsistent therewith, and any such inconsistent
terms in this Agreement shall be unenforceable by or against any of
the Partners; (iii) upon any dissolution of the Partnership or any
transfer of the Apartment Complex, no title or right to the possession
and control of the Apartment Complex and no right to collect rent
therefrom shall pass to any person who is not, or does not become,
bound by the Credit Conditions in a manner that, in the opinion of
counsel to the Partnership, would not adversely affect the ability of
the owner(s) of the Apartment Complex to utilize the Credits or avoid
a recapture thereof; and (iv) any conveyance or transfer of title to
all or any portion of the Apartment Complex required or permitted
under this Agreement shall in all respects be subject to the Credit
Conditions and all conditions, approvals or other requirements of the
rules and regulations of any Authority applicable thereto.
4.2 Authorization to the General Partner.
Without in any way limiting the right or authority of the General
Partner under this Article IV or Article V hereof, the General Partner
is specifically authorized to execute all documents required by any
Authority or any Lender in connection with the acquisition,
construction or financing of the Apartment Complex; provided that the
terms and conditions of the related Governmental Agreement and/or
Mortgage and Mortgage Note were accurately and completely disclosed to
the Investor Limited Partner pursuant to the Contribution Agreement or
such requirement arises out of an amendment to such Governmental
Agreement, Mortgage or Mortgage Note made with the Consent of the
Special Limited Partner. Notwithstanding any other provision in this
Agreement, the General Partner is hereby authorized to amend this
Agreement without the consent of the Investor Limited Partner or the
Special Limited Partner to effectuate any amendments required by any
Authority or any Lender pursuant to applicable law and/or the terms
and conditions of a Governmental Agreement or Mortgage and Mortgage
Note, the terms and conditions whereof were accurately and completely
disclosed to the Investor Limited Partner pursuant to the Contribution
Agreement or such requirement arises out of an amendment to such
Governmental Agreement, Mortgage or Mortgage Note made with the
Consent of the Special Limited Partner. The General Partner may
exercise the power of attorney granted in Section 14.2 hereof to
effect the provisions of this Section 4.2.A.
The General Partner shall, at no time, do or cause to be done any act
directly or indirectly affecting the Apartment Complex except pursuant
to the requirements of each applicable Authority and Lender and (if
such approval is required) with the prior approval thereof.
4.3 Right to Mortgage.
The Partnership has obtained financing for the Apartment Complex from
the Lender and has secured the same by the Mortgage. Each and every
Mortgage provides and shall continue to provide that, except prior to
Completion, no Person, including, but not limited to, the Partnership,
any party holding a partnership interest in the Partnership, or any of
their Affiliates, shall have any personal liability for the payment of
all or any part of such Mortgage.
The execution by the General Partner or the Class Z General Partner on
behalf of the Partnership of the Project Documents is hereby ratified
provided that the terms and conditions thereof were accurately and
completely disclosed to the Investor Limited Partner pursuant to the
Contribution Agreement.
The Partners contemplate refinancing the Permanent Loan and the
General Partner will use its best efforts, at the General Partner's
expense, to refinance the Permanent Loan by February 28, 1999 (or, if
unsuccessful, by August 31, 1999) for purposes of making certain
distributions to Xxxx (the "Xxxx Refinancing"). If for any reason the
Xxxx Refinancing does not occur by August 31, 1999, the General
Partner will have a continuing obligation to use its best efforts to
refinance the Permanent Loan.
The General Partner may modify, refinance or repay the Mortgage with
the approval of each Lender and each Authority, if required, including
any required transfer or conveyance of Partnership assets for security
or mortgage purposes; provided, however, that the terms of any such
modification, refinancing or repayment must receive the Consent of the
Special Limited Partner before such transaction shall be binding on
the Partnership; it being agreed and understood that the consent of
the Special Limited Partner shall not be unreasonably withheld with
respect to the terms and conditions of the Xxxx Refinancing.
4.4 Loans. All borrowings by the Partnership shall be subject to the
terms of this Agreement, the Project Documents and applicable rules,
regulations and directives of any Authority. To the extent borrowings
are permitted, they may be made from any source, including any Partner
or an Affiliate thereof; provided, however, that any borrowings from
the General Partner or its Affiliates shall require the Consent of the
Special Limited Partner. Except as may be otherwise specifically set
forth in this Agreement, if any Partner or Affiliate thereof shall
lend any monies to the Partnership, such loan shall be unsecured and
the amount of any such loan shall not be an increase of such Partner's
Capital Contribution nor affect in any way such Partner's share of the
profits and losses or distributions of the Partnership. Any loan by a
Partner or its Affiliate, other than an Operating Loan, shall be a
Voluntary Loan, shall bear interest per annum at a rate equal to two
percent in excess of the Prime Rate (but not in excess of the lawful
maximum rate) and shall be repayable as set forth in Article IX hereof
(to the extent permitted by each Authority); provided, however, that
any Voluntary Loan shall be made solely for the benefit of the
Partnership. No Voluntary Loans by the General Partner or its
Affiliates may be made to the Partnership during the time that the
Guarantor is obligated to make Operating Loans to the Partnership.
ARTICLE V
RIGHTS, POWERS AND OBLIGATIONS OF THE
GENERAL PARTNER AND LIMITATIONS THEREON; PARTNERS' ACTIVITIES
5.1 Exercise of Management.
The overall management and control of the business, assets and affairs
of the Partnership shall be vested in the General Partner and, subject
to the specific limitations and restrictions set forth in this Article
V and in Article IV hereof, the General Partner, in extension of and
not in limitation of the powers given it by law, shall have full,
exclusive and complete charge of the management of the business of the
Partnership in accordance with its purpose stated in Section 2.5
hereof; provided, however, the General Partner shall not cause the
Partnership to enter into any contracts for services having a term in
excess of one year without the consent of the Special Limited Partner,
which consent shall not be unreasonably withheld. Neither the Special
Limited Partner nor any other Limited Partner shall take part in the
management or control of the business of the Partnership or have
authority to bind the Partnership. Notwithstanding the foregoing, the
provisions of this Section 5.1.A shall not limit the exercise by the
Special Limited Partner of any and all of the rights granted to it
under this Agreement.
The Managing General Partner (if at the time more than one Person
constitutes the Managing General Partner) shall act by vote of a
majority in interest of the Persons constituting the Managing General
Partner, except where otherwise specified herein. If at any time there
is no Managing General Partner, the General Partners shall act by vote
of a majority in interest of the General Partners, except where
otherwise specified herein.
Any General Partner, to the extent of its authorization, may from time
to time, by an instrument in writing delegate all or any of its powers
or duties hereunder to another General Partner. Such writing shall
fully authorize such other General Partner to act alone without
requirement of any other act or signature of the delegating General
Partner, to take any action of any type and to do anything and
everything which the delegating General Partner may be authorized to
take or do hereunder except insofar as said delegation may be limited
to certain acts or activities; provided, however, that any such
delegation shall not relieve the delegating General Partner of its
obligations or liabilities under its Agreement.
Each obligation of the General Partners under this Agreement shall be
the joint and several obligation of each General Partner and each such
obligation shall survive any withdrawal of a General Partner pursuant
to Article XI hereof.
5.2 Duties and Authority of General Partner.
The General Partner shall devote to the Partnership such time as may
be necessary for the proper performance of the duties of the General
Partner. The General Partner shall at all times exercise its
responsibilities as General Partner in a fiduciary manner. The
signature of a General Partner shall be required on any instrument,
document or agreement to bind the Partnership, and third parties may
rely fully on any such instrument, document or agreement signed by the
General Partner. Subject to the terms and conditions hereof, the
General Partner shall be obligated, and is hereby authorized and
directed, to:
Take all action that may be necessary or appropriate to carry out the
purposes of the Partnership as described in this Agreement;
Make inspections of the Apartment Complex and assure that the
Apartment Complex is being properly maintained in accordance therewith
and necessary repairs are being made;
Prepare or cause to be prepared in conformity with good business
practice all reports that are to be furnished to the Partners or that
are required by taxing bodies, any Authority or other governmental
agencies, including operations reports of the Apartment Complex or by
or on behalf of the General Partner, and the financial statements and
reports referred to in Section 7.3 hereof;
Cause the property of the Partnership at all times to be insured in a
manner similar to other property of like kind in the same locality and
in such amounts and on such terms as will fully and adequately protect
the Partnership (provided that such insurance shall be in an amount at
least sufficient to satisfy the provisions of Section 5.11 hereof);
Obtain and maintain in force or cause to be obtained and maintained in
force Worker's Compensation Insurance and such other insurance as may
be required by applicable law or governmental regulation;
Obtain and maintain in force or cause to be obtained and maintained in
force adequate public liability insurance;
Comply with any rehabilitation budget delivered pursuant to the
Contribution Agreement;
Enforce compliance with any construction agreements;
Provide an O&M Plan for the Apartment Complex acceptable to the
Special Limited Partner within fifteen (15) days of the date hereof.
Comply with all Governmental Agreements;
Promptly report to the Limited Partners any (I) material variance from
the qualification standards for Credits or (II) failure to comply with
the Governmental Agreements which would give rise to the Special
Removal Right under Section 11.4.A(ii); and
Do all other things (subject to the restrictions contained herein)
that may be necessary or desirable in order properly and efficiently
to administer and carry on the affairs, assets and business of the
Partnership.
The General Partner shall operate the Apartment Complex and shall
cause the Management Agent to manage the Apartment Complex in such a
manner that the Apartment Complex will be eligible to receive Credits
with respect to 100% of the apartment units in the Apartment Complex.
To that end, the General Partner agrees, without limitation, to make
all elections requested by the Special Limited Partner under Section
42 of the Code to allow the Partnership or its Partners to claim the
Credit; to file Form 8609 with respect to the Apartment Complex as
required; for at least the duration of the Compliance Period, to
operate the Apartment Complex and cause the Management Agent to manage
the Apartment Complex so as to comply with the requirements of
Sections 42(g) and (i)(3) of the Code; and to make all certifications
required by Section 42(1) of the Code.
The General Partner agrees that it shall prepare or cause to be
prepared an annual budget in connection with the operations of the
Apartment Complex for each succeeding fiscal year of the Partnership
and shall deliver the same to the Special Limited Partner not later
than November 1 of the fiscal year preceding the fiscal year to which
such budget relates. Each such budget shall contain an amount to be
added to separate reserves for payment of real estate taxes, insurance
and replacements in an amount with respect to each such reserve equal
to the greater of the amount required to be added to such reserve
during such year by any Lender or the amount that is reasonable in the
circumstances, which, in the case of the reserve for replacements,
shall be not less than an amount equal to the Required Reserve Amount.
Such budget shall not be adopted without the Consent of the Special
Limited Partner. The Partnership shall not make any expenditure of
funds, or commit to make any such expenditure, other than in response
to an Unavoidable Event, except as provided for in an annual budget so
approved by the Special Limited Partner.
If the General Partner and the Special Limited Partner agree that the
annual amount to be placed into a reserve for replacement and repairs,
as reflected in Section 5.2.C hereof (as such amount may be adjusted
from time to time by the General Partner with the Consent of the
Special Limited Partner), exceeds the amount which the Partnership is
required to place into such an account to be maintained by or under
the direction of the Lender or the Authority, the General Partner
shall each month cause the Partnership to pay one-twelfth (1/12th) of
such excess into an escrow account pursuant to the terms of the
Replacement Reserve Guaranty Agreement annexed to the Contribution
Agreement as Exhibit J.
5.3 Delegation of General Partner Authority; Tax Matters Partner.
The General Partners hereby delegate all their powers and duties
hereunder to the Managing General Partner. For all purposes of this
Agreement, including, without limitation, the delivery of certificates
and the granting of withholding of all consents and approvals, the
Managing General Partner shall have the sole right to act in the name
of and on behalf of the General Partners. On and subject to the terms
and conditions of this Agreement, the Managing General Partner is
hereby fully authorized, without the requirement of any act or
signature of the other General Partners, to take any action of any
type and to do anything and everything which a general partner of a
limited partnership organized under the Uniform Act may be authorized
to take or do thereunder, and specifically, without limitation of such
authority, to execute, sign, seal and deliver in the name and on
behalf of the Partnership:
any note, mortgage or other instrument or document in connection with
the Mortgage, the Mortgage Note or any Governmental Agreement, and all
other agreements, contracts, certificates, instruments or documents
required by any Authority and/or any Lender in connection therewith or
with the acquisition, development, construction, improvement,
operation or leasing of the Apartment Complex or otherwise required by
any Authority and/or any Lender under the Project Documents in
connection with the Apartment Complex;
any deed, lease, mortgage, mortgage note, xxxx of sale, contract or
any other instrument purporting to convey or encumber the real or
personal property of the Partnership; any rent supplement or leasing
or other contract or agreement providing for public or non-public
financial assistance, directly or indirectly, to tenants of the
Apartment Complex;
any and all agreements, contracts, documents, certificates and
instruments whatsoever involving the acquisition, development,
construction, improvement, management, maintenance, leasing and
operation of the Apartment Complex, including the employment of such
Persons as may be necessary therefor; and
any and all instruments, agreements, contracts, certificates or
documents requisite to carrying out the intention and purpose of this
Agreement, including, without limitation, the filing of all business
certificates, this Agreement and all amendments thereto, and documents
required pursuant to the Project Documents or by any Authority and/or
any Lender or deemed advisable by the Managing General Partners in
connection with any financing.
Every contract, agreement, certificate, document or other instrument
executed by the Managing General Partner shall be conclusive evidence
in favor of every person relying thereon or claiming thereunder that,
at the time of the delivery thereof, (i) the Partnership was in
existence, (ii) this Agreement had not been terminated or cancelled or
amended in any manner so as to restrict such authority (except as
shown in any instrument duly filed in the Filing Office) and (iii) the
execution and delivery thereof was duly authorized by the General
Partners. Any Person dealing with the Partnership or the Managing
General Partner may, absent actual knowledge to the contrary, rely on
a certificate signed by the Managing General Partner hereunder:
as to who are the Partners hereunder;
as to the existence or nonexistence of any fact or facts which
constitute conditions precedent to acts by any General Partner or are
in any other manner germane to the affairs of the Partnership;
as to who is authorized to execute and deliver any instrument,
contract, agreement, certificate or document for the Partnership;
as to the authenticity of any copy of this Agreement and amendments
thereto; or
as to any act or failure to act by the Partnership or as to any other
matter whatsoever involving the Partnership or the Apartment Complex.
The Partners hereby consent to the exercise by the Managing General
Partner of the powers conferred on it by this Agreement.
All of the Partners hereby agree that the Managing General Partner
shall be the "Tax Matters Partner" pursuant to the Code and in
connection with any audit of the Federal income tax returns of the
Partnership. In discharging its duties and responsibilities, the Tax
Matters Partner shall act as a fiduciary (i) to the Limited Partners
(to the exclusion of the other Partners) insofar as tax matters
related to Credits are concerned, and (ii) to the Partners in other
respects. In acting as tax matters partner, the Tax Matters Partner
shall consult with the Special Limited Partner.
5.4 Lease, Conveyance or Refinancing of Assets of the Partnership.
Except as may be otherwise expressly provided in Sections 4.1 and 4.3
hereof and elsewhere in this Agreement, the General Partner, with the
approval of each Authority (if required), is hereby authorized to
sell, lease, exchange, refinance or otherwise transfer, convey or
encumber all or substantially all of the assets of the Partnership;
provided, however, that the terms of any such sale, exchange,
refinancing or other transfer, conveyance or encumbrance must receive
the Consent of the Special Limited Partner before such transaction
shall be binding on the Partnership. Notwithstanding the foregoing, no
such consent shall be required for the leasing of apartments to
tenants in the normal course of operations, or leases or concessions
of facilities related to the operation of the Apartment Complex.
Notwithstanding any provision of this Agreement to the contrary, the
Special Limited Partner shall have the right at any time after the
fourteenth year of the Compliance Period (A) to require, by written
notice to the General Partner, that the General Partner promptly
submit a written request to the Credit Agency pursuant to Code Section
42(h)(6)(I) that the Credit Agency endeavor to locate within one year
from the date of such written request a buyer who will continue to
operate the Property as a qualified low-income building at a purchase
price that is not less than the debt encumbering the Property plus the
Partnership's equity in the Property (adjusted for cost-of-living
increases as permitted by Code Section 42(h)(6)(G)), and (B) in the
event the Credit Agency locates such a buyer, to compel the General
Partner to accept such buyer's offer to purchase the Property.
Subject to Section 5.4(B)(i) hereof and notwithstanding any other
provision of this Agreement to the contrary, the Special Limited
Partner shall have the right at any time after the end of the
Compliance Period to require, by written notice to the General Partner
(the "Required Sale Notice"), that the General Partner promptly use
its best efforts to obtain a buyer for the Apartment Complex on the
most favorable terms then obtainable. The General Partner shall submit
the terms of any proposed sale to the Special Limited Partner for its
approval as provided in Section 5.4.A hereof. If the General Partner
shall fail to so obtain a buyer for the Apartment Complex within six
months of the Required Sale Notice or if the Special Limited Partner
in its sole discretion shall withhold its consent to any proposed sale
to such buyer, then the Special Limited Partner shall have the right
at any time thereafter to obtain a buyer for the Apartment Complex on
terms acceptable to the Special Limited Partner (but not less
favorable to the Partnership than any proposed sale previously
rejected by the Special Limited Partner). In the event that the
Special Limited Partner so obtains a buyer, it shall notify the
General Partner in writing with respect to the terms and conditions of
the proposed sale and the General Partner shall cause the Partnership
promptly to sell the Apartment Complex to such buyer.
A sale of the Apartment Complex prior to the end of the Compliance
Period may only take place if the conditions of Section 42(j)(6) of
the Code will be satisfied upon such sale either (a) by having the
purchaser of the Apartment Complex post the required bond on behalf of
the Partnership or (b) with the Consent of the Special Limited
Partner, having the Partnership post such bond.
5.5 Restrictions on Authority. Notwithstanding any other provisions of
this Agreement:
No General Partner shall have authority to perform any act in
violation of any applicable laws or regulations, the Project Documents
or any agreement between the Partnership and any Authority or any
Lender, or to take any action which under the Uniform Act or this
Agreement requires the approval, ratification or consent of some or
all of the Partners without first obtaining such approval,
ratification or consent, as the case may be.
The General Partner shall not have authority to do any of the
following acts, except with the Consent of the Special Limited Partner
and the approval, to the extent required, of any Authority and any
Lender:
acquire any real or personal property (tangible or intangible) in
addition to the Apartment Complex, the aggregate value of which shall
exceed $10,000 (other than easements or similar rights necessary or
appropriate for the operation of the Apartment Complex);
become personally liable on or in respect of, or guarantee, a Mortgage
Note or a Mortgage or any other indebtedness of the Partnership;
pay any salary, fees or other compensation to a General Partner or any
Affiliate thereof, except as authorized by Section 5.7 or Articles VI,
VIII or IX hereof or specifically provided for in this Agreement;
sell all or any portion of the Apartment Complex or modify or
refinance the Mortgage or incur any indebtedness for borrowed money
except as specifically provided in this Agreement and subject to the
provisions contained in Section 5.4 hereof;
terminate the services of the Accountants, the Contractor or the
Management Agent, or terminate, amend or modify any Project Document
or grant any material waiver or consent thereunder;
engage a substitute Management Agent or approve the delegation by the
Management Agent of all or a substantial portion of its duties to a
third party;
amend or terminate the Operating Deficit Guaranty Agreement or any of
the Other Guarantees, or grant any waiver or consent thereunder;
cause the Partnership to redeem or repurchase all or any portion of
the Interest of a Partner;
accept additional Capital Contributions other than those expressly
provided for in this Agreement;
approve the Withdrawal of a General Partner or the admission of a
successor or additional General Partners or Limited Partners to the
Partnership except in accordance with the express terms hereof;
cause the Partnership to convert the Apartment Complex to cooperative
or condominium ownership;
cause or permit the Partnership to be merged with any other entity;
cause or permit the Partnership to make loans to the General Partner
or any of its Affiliates; grant any waivers or consents under any
Project Documents; or
cause or permit the Partnership to take or omit or suffer any action
that would result in a recapture of Credits previously recognized by
the Partnership or a reduction or disallowance of any Credits
anticipated to be recognized by the Partnership as contemplated by
Section 3.4.B hereof, other than an Unavoidable Event.
The enumeration of the foregoing rights shall not diminish or affect
the existence or exercise of other rights expressly granted to the
Special Limited Partner elsewhere herein.
5.6 Activities of Partners.
It is understood that the General Partner is and will be engaged in
other activities and occupations unrelated to the Partnership, and the
General Partner shall be required to devote only so much of its time as it
in its sole discretion may deem necessary to the affairs of the
Partnership. Any Partner may engage in and have an interest in other
business ventures of every nature and description, independently or with
others, including, but not limited to, the ownership, financing, leasing,
operating, construction, rehabilitation, renovation, improvement,
management and development of real property whether or not such real
property is directly or indirectly in competition with the Apartment
Complex; provided, however, that nothing herein shall be construed to
relieve the General Partner of any of its fiduciary obligations with
respect to the management, financing and disposition of the Apartment
Complex. Neither the Partnership nor any other Partner shall have any
rights by virtue of this Agreement in and to such independent ventures or
the income or profits derived therefrom, regardless of the location of such
real property and whether or not such venture was presented to such Partner
as a direct or indirect result of his connection with the Partnership or
the Apartment Complex.
5.7 Dealing with Affiliates.
Subject to the restrictions contained in this Agreement, the General
Partner may, for, in the name and on behalf of, the Partnership, enter into
agreements or contracts for performance of services for the Partnership as
an independent contractor with the General Partner or an Affiliate thereof
and the General Partner may obligate the Partnership to pay compensation
for and on account of any such services; provided, however, that unless the
terms of such compensation and/or services are specified in this Agreement,
(x) such compensation and services shall be on terms not less favorable to
the Partnership than if such compensation and services were paid to and/or
performed by a person who was not the General Partner or an Affiliate
thereof, and (y) after full and accurate disclosure to the Special Limited
Partner of the interest of the General Partner, the Consent of the Special
Limited Partner to the provision of such services by such Affiliate shall
have been obtained.
5.8 Indemnification and Liability of the General Partners.
To the maximum extent permitted by law and this Section 5.8, the
Partnership, its receiver or its trustee, shall indemnify and hold
harmless the General Partner and its Affiliates from and against any
liability, loss or damage incurred by them by reason of any act
performed or omitted to be performed by them pursuant to the authority
granted to them by this Agreement, including costs and reasonable
attorneys' fees and any amount expended in the settlement of any claim
of liability, loss or damage; provided, however, that (i) if such
liability, loss or damage arises out of any action or inaction of any
Affiliate, such action or inaction must have occurred while such party
was engaged in activities which could have been engaged in by a
General Partner in its capacity as such; (ii) if such liability, loss
or damage arises out of any action or inaction of the General Partner
or its Affiliates, (a) the General Partner or its Affiliates must have
determined, in good faith, that such course of conduct was in the best
interests of the Partnership and (b) such course of conduct did not
constitute fraud, negligence or misconduct by the General Partner or
its Affiliates; and (iii) any such indemnification shall be
recoverable only from the assets of the Partnership and not from the
assets of any Partner. All judgments against the Partnership and the
General Partner or its Affiliates, wherein the General Partner or its
Affiliates are entitled to indemnification, must first be satisfied
from Partnership assets before such General Partner or its Affiliates
are responsible for these obligations. The Partnership shall not pay
for any insurance covering liability of the General Partner or its
Affiliates for actions or omissions for which indemnification is not
permitted hereunder; provided, however, that nothing contained herein
shall preclude the Partnership from purchasing and paying for such
types of insurance, including extended coverage liability and casualty
and workers' compensation, as would be customary for any person owning
comparable assets and engaged in a similar business, or from naming
the General Partner or its Affiliates as additional insured parties
thereunder, if such addition does not add to the premiums payable by
the Partnership. Nothing contained herein shall constitute a waiver by
any Investor Limited Partner of any right which it may have against
any party under Federal or state securities laws nor shall an Investor
Limited Partner be permitted to contract away the fiduciary duty owed
to it by the General Partner or its Affiliates under common law. The
provision of advances from the Partnership to the General Partner or
its Affiliates for legal expenses and other costs incurred as a result
of a legal action is permissible if the following three conditions are
satisfied: (I) the legal action relates to the performance of duties
or services by General Partner or its Affiliates on behalf of the
Partnership; (II) the legal action is initiated by a third party who
is not an Investor Limited Partner of the Partnership or a beneficial
owner thereof; and (III) the General Partner or its Affiliates
undertake to repay to the Partnership the funds so advanced in cases
in which they would not be entitled to indemnification hereunder.
Notwithstanding anything to the contrary contained herein, in no event
shall any indemnity under this Section 5.8.A be applicable to any
expenditures or obligations of the General Partner or Affiliate
thereof which are the subject of a separate obligation or guaranty to
the Partnership or the Limited Partners by such General Partner or an
Affiliate thereof. Notwithstanding the provisions of Section 5.8.A
hereof, the General Partner and its Affiliates shall not be
indemnified or held harmless pursuant to Section 5.8.A hereof from any
liability, loss or damage incurred by them in connection with, and
shall indemnify and hold harmless the Partnership and the other
Partners from and against any liability, loss or damage incurred by
them by reason of, (i) any liability imposed by law, including for
fraud, negligence or misconduct; or (ii) any claim or settlement
involving allegations that Federal or state securities laws associated
with the offer and sale of an Interest were violated by the General
Partner or its Affiliates unless: (a) the indemnitee is successful in
defending such action on the merits of each count involving securities
laws violations and such indemnification is specifically approved by a
court of competent jurisdiction; (b) such claims have been dismissed
with prejudice on the merits by a court of competent jurisdiction and
the court specifically approves such indemnification; or (c) a court
of competent jurisdiction approves a settlement of the claims against
the entity seeking indemnification involving securities law violations
and finds that indemnification of the settlement and related costs
should be made. Any person seeking indemnification shall apprise the
court of the current position of the Securities and Exchange
Commission, the California Commissioner of Corporations, the
Massachusetts Securities Division and other applicable state
securities administrators regarding indemnification for violations of
securities laws.
5.9 Representations and Warranties.
The General Partner hereby represents and warrants to each of the
other Partners that the following are true and accurate as of the date
hereof and on the Admission Date as if made on and as of such date and
will be true and accurate on the due date of any payment of Capital
Contributions to the Partnership:
The execution and delivery of all instruments and the performance of
all acts heretofore or hereafter made or taken pertaining to the
Partnership or the Apartment Complex by the General Partner which is a
corporation or a partnership or by each Affiliate of General Partner
which is a corporation or a partnership have been or will be duly
authorized by all necessary corporate or partnership actions, as the
case may be, or other action and the consummation of any such
transactions with or on behalf of the Partnership will not constitute
a breach or violation of, or a default under, the charter or by-laws,
or partnership agreement, of such General Partner or such Affiliate or
any agreement by which such General Partner or such Affiliate or any
of its properties is bound, nor constitute a violation of any law,
administrative regulation or court decree.
No Bankruptcy has occurred with respect to the General Partner or any
Affiliates thereof.
As of the Admission Date all accounts of the Partnership required to
be maintained under the terms of the Project Documents, including,
without limitation, any account for replacement reserves, are
currently funded to required levels, including levels required by any
Authority.
The General Partner has not lent or otherwise advanced any funds to
the Partnership other than its Capital Contribution and the
Partnership has no unsatisfied obligation to make any payments of any
kind to the General Partner or any Affiliate thereof outstanding as of
the Admission Date.
No event has occurred which with the giving of notice, the passage of
time, or both, would constitute a material default under any of the
Project Documents.
Each of the representations and warranties contained in the
Contribution Agreement is true and correct on the date hereof as if
made on and as of such date.
The Partnership is acquiring the Capital Note without a view to the
sale or distribution thereof and without any present intention of
distributing or selling the same. The Partnership agrees that it (and
any holder of any interest in the Capital Note) will not sell, assign
or otherwise transfer its interest in the Capital Note (or any
fraction thereof) without the Consent of the Special Limited Partner
and unless such transfer shall be in full compliance with all
applicable securities laws and regulations.
5.10 Additional Covenants of General Partner.
The General Partner shall permit, and shall cause the Management
Agent to permit, the Special Limited Partner and its representatives
to have access to the Apartment Complex and personnel employed by the
Partnership and by the Management Agent who are concerned with
management of the Apartment Complex at all reasonable times during
normal business hours and to examine all agreements and plans and
specifications and shall deliver to the Special Limited Partner such
copies of such documents and such reports as may reasonably be
required by the Special Limited Partner. The General Partner shall
promptly upon transmission or receipt provide the Special Limited
Partner with copies of all correspondence, notices and reports sent
pursuant to and received under the Project Documents or any Authority
with respect to the Apartment Complex, together with copies of all
other correspondence relating to or affecting the Credits or that a
prudent investor in the position of the Limited Partners might
reasonably be expected to wish to examine in connection with the
transaction.
5.11 Obligation to Repair and Rebuild Apartment Complex.
With the approval of any Lender and any Authority, if such
approval is required, any insurance proceeds received by the
Partnership due to fire or other casualty affecting the Apartment
Complex occurring during the Compliance Period will be utilized to
repair and rebuild the Apartment Complex in satisfaction of the
conditions contained in Section 42(j)(4) of the Code and to the extent
required by any Lender and any Authority. Any such proceeds received
in respect of such an event occurring after the Compliance Period
shall be so utilized or, if permitted by the Project Documents and
with the Consent of the Special Limited Partner, treated as Sale or
Refinancing Proceeds.
ARTICLE VI
CERTAIN PAYMENTS
6.1 Development Fee.
As consideration for development and contracting services
provided to the Partnership, the Partnership shall pay the Developer
on the date hereof (i) a development fee of $507,623 ("Development
Fee") and (ii) a contractor fee of $96,500 ("Contractor Fee"). The
Development Fee and the Contractor Fee shall be taken into income for
Federal income tax purposes by the Developer in 1997. Upon request,
the Developer will submit to the Special Limited Partner such evidence
as may be required for the Special Limited Partner to confirm that,
for Federal income tax purposes, the Development Fee and the
Contractor Fee were taken into income as aforesaid. The Developer, by
his signature below, hereby acknowledges and agrees that the
Development Fee and the Contractor Fee have been paid in full and that
no further development or contractor fees are owing to him from the
Partnership.
6.2 Consulting Monitoring Fee.
The Partnership shall pay to RCC Asset Managers V L.L.C. a
consulting monitoring fee in the amount of $110,756 for its services
in assisting the Partnership in acquiring the Apartment Complex and in
supervising the construction of the Apartment Complex. This fee shall
be payable on the Closing Date pursuant to the Consultant Fee
Agreement which agreement is annexed to the Contribution Agreement as
Exhibit R.
6.3 Annual Local Administrative Fee.
For its services in monitoring the operations of the Partnership,
the Partnership shall pay to the Special Limited Partner an Annual
Local Administrative Fee in the amount of $5000 per annum beginning on
the Admission Date (and increased each year thereafter (to a maximum
of $12,000 per annum) by the greater of (A) 5% or (B) the percentage
increase in CPI) if there is sufficient cash available to pay same
provided that, if in any year there are not sufficient funds to pay
such fee after payment of all operating expenses of the Project, then,
in such event such fee shall accrue and be payable out of available
Cash Flow in subsequent years or if there is no available Cash Flow,
out of Sale or Refinancing Transaction Proceeds but shall be a legal
obligation only if paid to the extent Cash Flow or Sale or Refinancing
Transaction Proceeds are available. Notwithstanding anything to the
contrary contained herein, proceeds of Operating Loans shall not be
used to pay the Annual Local Administrative Fee.
6.4 Supervisory Management Fee.
For its services in supervising the Management Agent, the
Partnership shall pay the General Partner a non-cumulative supervisory
management fee (the "Supervisory Management Fee") in an amount equal
to 40% of available Cash Flow as set forth in Section 9.2.A.
6.5 Asset Management Fee.
For its services in monitoring the operations of the Apartment
Complex, the Partnership shall pay the General Partner a
non-cumulative asset management fee ("Asset Management Fee") in an
amount equal to the lesser of (A) available Cash Flow as set forth in
Section 9.2.A and (B) one (1%) percent of net rental income for the
Apartment Complex.
6.6 Amounts Earned on $1,500,000 Escrow.
Any and all amounts earned and paid to the Partnership on that
certain escrow account held by Xxxxx Fargo Bank pursuant to that
certain Escrow Agreement dated as of December 29, 1996 and executed by
Xxxxx Fargo Bank (Texas), N.A., the Credit Agency and the Partnership
shall be paid to Xxxx within a reasonable period after the
Partnership's receipt thereof but in no event later than sixty (60)
days from such receipt. Any amounts received by Xxxx pursuant to this
Section 6.6 shall reduce any payments of earnings required to be made
to Xxxx pursuant to Sections 9.2.A and 9.2.B hereof.
6.7 Contractor Fee.
As consideration for supervision and contracting services
provided to the Partnership, the Partnership shall pay the General
Partner a contractor fee in an amount equal to the lesser of (A)
$30,000 or (B) eight (8%) percent of the cost of the additional
construction work required to be performed with respect to the
Apartment Complex ("Contractor Fee"), which shall be paid by the
Partnership pursuant to a note ("Contractor Note") in substantially
the form annexed to the Contribution Agreement as Exhibit T to be
executed on the date hereof. If any or all of the Contractor Note
remains unpaid at the end of the Compliance Period, the General
Partner shall be obligated to contribute such unpaid amount to the
Partnership for payment thereof. If, in any fiscal year of the
Partnership, the Partnership's payments ("Contractor Note Payments")
in reduction of the Contractor Note (including principal and unpaid
interest thereon) are less than the depreciable portion of such fee
for such year then the full amount of such depreciable portion shall
be taken into income for Federal income tax purposes by the General
Partner in such year; in all other cases the actual amount of the
Contractor Note Payments made during such year shall be taken into
income for Federal income tax purposes by the General Partner upon
receipt thereof. Upon request, the General Partner will submit to the
Special Limited Partner such evidence as may be required for the
Special Limited Partner to confirm that, for Federal income tax
purposes, the Contractor Fee was taken into income as aforesaid.
ARTICLE VII
ACCOUNTING, REPORTS, BOOKS,
BANK ACCOUNTS AND FISCAL YEAR
7.1 Bank Accounts.
The bank accounts of the Partnership shall be maintained in such
banking institutions authorized to do business in the State or such
other states as permitted by each Authority and as the General
Partners shall determine with the Consent of the Special Limited
Partner, and withdrawals shall be made on such signature or signatures
as the General Partners shall determine. The Partnership's funds shall
not be commingled with the funds of any other Person and shall not be
used except for the business of the Partnership. All deposits
(including security deposits and other funds required to be placed in
escrow by any Authority or any Lender and other funds not needed in
the operation of the Partnership's business) shall be deposited, to
the extent permitted by each Authority, in interest-bearing accounts
or invested in obligations of or guaranteed by the United States, any
state thereof, or any agency, municipality or other political
subdivision of any of the foregoing, commercial paper (investment
grade), certificates of deposit and time deposits in commercial banks
with capital in excess of $50,000,000 and in mutual (money market)
funds investing in any or all of the foregoing; provided, however,
that any funds required to be placed in escrow by any Authority shall
be controlled by such Authority, and the General Partners shall not be
permitted to make any withdrawal from such funds without the express
written consent of such Authority to the extent required.
7.2 Books of Account; Fiscal Year.
Complete and accurate books of account, in which shall be
entered, fully and accurately, each and every transaction of the
Partnership, shall be kept or caused to be kept by the General
Partner. The books shall be kept on an accrual basis of accounting,
and the fiscal year of the Partnership shall be the calendar year. All
of the Partnership's books of account, together with an executed copy
of this Agreement and all Project Documents and copies of such other
instruments as the General Partner may execute hereunder, including
amendments thereto, shall at all times be kept at the principal office
of the Partnership and shall be available during normal business hours
for inspection by any Partner or his duly authorized representative
or, at the expense of any Partner, for audit by him or his duly
authorized representative.
7.3 Reports.
Within 45 days after the end of each of the first three quarters
of each fiscal year, the General Partner shall have prepared and shall
deliver to the Limited Partners, commencing with the first quarterly
period ending after the Admission Date, (i) a balance sheet and
statements of income (or loss) and changes in financial position and
Cash Flow for, or as of the end of, such quarter in customary form and
substance (or in such form and substance as the Special Limited
Partner shall reasonably request so as to facilitate the Investor
Limited Partner's filings with the Securities and Exchange Commission
and any other filings required by law), none of which need be audited
unless required by law, together with a report of other pertinent
information regarding the Partnership and its activities during such
quarter, including, but not limited to, a statement of the amount of
all fees and other compensation paid by the Partnership during such
quarter to the General Partner or any of its Affiliates, and (ii) a
certificate of the General Partners that each of the apartment units
in the Apartment Complex which is then occupied qualifies as a "low
income unit" under Section 42 of the Code.
The General Partner shall send to each Investor Limited Partner such
tax information as shall be necessary for inclusion by each Investor
Limited Partner in its Federal income tax returns and required state
income tax and other tax returns. The General Partner shall send this
information within 45 days after the end of each fiscal year.
Within 60 days after the end of each fiscal year of the Partnership,
the General Partner shall send to the Limited Partners (i) the balance
sheet of the Partnership as of the end of such fiscal year and
statements of income (loss), Partners' equity and cash flows for such
fiscal year, all of which shall be prepared in accordance with
generally accepted accounting principles consistently applied and
shall be accompanied by a report of the audit of the Accountants for
the Partnership reflecting no limitations as to the scope of the
Accountant's audit of such statements, and (ii) a statement of Cash
Flow for such fiscal year (which need not be audited), showing
distributions in respect of such fiscal year, which statement shall
identify distributions from (a) Cash Flow generated during the fiscal
year, (b) Cash Flow generated during prior fiscal years, (c) proceeds
from the disposition of property and investments and (d) reserves and
other sources.
If the General Partner shall fail, for any reason, to deliver to the
Limited Partners when due any of the information or statements
required by this Section 7.3, the Partnership shall pay the Limited
Partners, as liquidated damages for such failure, an amount equal to
$300 for each day that elapses after the respective due date until
such information or statements have been delivered to the Limited
Partners. The General Partner hereby guarantees the payment of any
amount due to the Limited Partners by the Partnership under this
Section 7.3.D; provided, however, that such payments shall not be
deemed to be either a capital contribution or a loan from the General
Partner and that neither the Partnership nor any Investor Limited
Partner shall be under any obligation to repay any such amount paid by
the General Partner.
7.4 Other Reports.
The General Partner shall from time to time submit to the
Partners such other written reports and information regarding the
operations of the Partnership as may be required by the Investor
Limited Partner to satisfy its reporting requirements to its partners
or governmental authorities. The General Partner shall provide to the
Partners by November 30 of each fiscal year an estimate of each
Partner's share of profits and losses for Federal and state income tax
purposes for such fiscal year.
7.5 Tax Returns and Tax Treatment.
The General Partner shall, for each fiscal year, file on behalf
of the Partnership a United States Partnership Return of Income within
the time prescribed by law for such filing. The General Partner shall
also file on behalf of the Partnership such other tax returns and
other documents from time to time as may be required by the Federal
government or by any state or any subdivision thereof. All tax returns
shall be prepared by the Accountants. The General Partner shall send a
copy of Schedule K-1 or any successor or replacement form thereof,
and, upon request, such tax return, to each Partner within 45 days
after the expiration of each fiscal year.
ARTICLE VIII
MANAGEMENT AGENT
8.1 Management Agent and Management Fee.
The General Partner shall have the responsibility for managing
the Apartment Complex and obtaining a management agent (the
"Management Agent"), the choice of which with respect to any successor
to the Management Agent at the Admission Date shall be made with the
Consent of the Special Limited Partner after accurate and complete
disclosure to the Special Limited Partner of any affiliation between
the General Partner and such successor. The Management Agent at the
Admission Date is Autumn Gate Properties, Inc., and is not an
Affiliate of the General Partners.
The Management Agent shall receive a management fee payable by the
Partnership on an annual basis in an amount not to exceed four (4%)
percent of the net rental income from the Apartment Complex for
management services in accordance with the Management Agreement as
approved by each Authority (if such approval is necessary) which is
intended to be executed by the Partnership. The term of any Management
Agreement shall not exceed one year without the Consent of the Special
Limited Partner, and no payment or penalty shall be payable by the
Partnership for failure to renew any such agreement. In the event that
the Management Agent is an Affiliate of the General Partner, the
Management Agreement will be amended to provide that forty (40%)
percent of such management fee with respect to any fiscal year of the
Partnership shall not become due and payable unless the Partnership
has positive Cash Flow with respect to that fiscal year, and any
unpaid portion of such management fee may be payable from positive
Cash Flow of the Partnership in future fiscal years of the Partnership
or from Sale or Refinancing Transaction Proceeds, as provided in
Sections 9.2.A and 9.2.B.
The General Partner will have the duty to manage the Apartment Complex
during any period when there is no Management Agent and the
Partnership will pay the General Partner for such services an annual
management fee equal to such amount as each Authority shall approve
(but not in excess of the fee set forth in Section 8.1.B hereof) from
time to time or, if no approval is required, a fee equal to the
amounts set forth in Section 8.1.B hereof. If at any time the present
Management Agent shall cease to act as the Management Agent, the
General Partner shall be authorized, subject to the Consent of the
Special Limited Partner and the approval of each Authority and Lender
(if required) to retain and to enter into a Management Agreement with
a different Management Agent on terms at least as favorable to the
Partnership as the terms and conditions of the Management Agreement
with the present Management Agent.
Subject to the approval of each Authority, if required, the Special
Limited Partner shall have the right, in the event the General Partner
is removed as General Partner pursuant to Section 11.4 hereof, to
terminate the Management Agreement and every other contract between
the Partnership and Affiliates of the General Partner so removed, upon
not less than 30 days' written notice to the party contracting with
the Partnership. All existing contracts between the Partnership and
Affiliates of the General Partner have been amended to contain this
right and the General Partner covenants not to enter any future
contract with any of their Affiliates which does not contain such
right.
ARTICLE IX
PROFITS AND LOSSES; DISTRIBUTIONS
9.1 Allocations of Profits and Losses.
For tax and accounting purposes, Profits and Losses of the
Partnership for each fiscal year shall be allocated to the respective
classes of Partners as follows:
Subject to Section 9.3 hereof, Profits other than those arising from a
Sale or Refinancing Transaction shall be allocated (i) first to the
extent of prior allocations of Losses (other than Nonrecourse
Deductions), in proportion to the amount of prior Losses allocated to
each Partner, then (ii) to each Partner until the Profits allocated to
such Partner equals the cash distributions made to such Partner
pursuant to Section 9.2.A (xi) hereof, and then (iii) to each Partner
in an amount equal to the cash distributions that would be made to
each Partner pursuant to Section 9.2.A (xi) if the Partnership had
cash available in an amount equal to such remaining Profits. Subject
to Section 9.3 hereof, Profits arising from a Sale or Refinancing
Transaction shall be allocated as follows:
First, to the Partners until each Partner has been allocated an amount
or Profits equal to the aggregate Losses previously allocated to such
Partner pursuant to Section 9.1.C hereof, to the extent such aggregate
Losses are more than the aggregate Profits allocated to such Partner
pursuant to Section 9.1.A(i) hereof and this Section 9.1.B(i);
Next, 99.98% to the Investor Limited Partner, .01% to the Special
Limited Partner and .01% to the General Partner until the Capital
Account of the Investor Limited Partner is equal to its Investor
Contributions;
Next, to the Special Limited Partner until the Capital Account of the
Special Limited Partner is equal to the amount distributable to it
pursuant to Section 9.2.B(x) and then to the General Partner until the
Capital Account of the General Partner is equal to the amount
distributable to it pursuant to Section 9.2.B(xi); and
Thereafter, 49.89% to the Investor Limited Partner, .01% to the
Special Limited Partner and 50.1% to the General Partner.
Subject to Section 9.3 hereof, Losses shall be allocated .01% to the
General Partner, 99.98% to the Investor Limited Partner and .01% to
the Special Limited Partner.
The Losses allocated pursuant to this Section 9.1.C shall not exceed
the maximum amount of Losses that can be so allocated without causing
any Investor Limited Partner to have an Adjusted Capital Account
Deficit at the end of any fiscal year of the Partnership. All Losses
in excess of the limitations set forth in this Section 9.1.C(ii) shall
be allocated to the General Partner.
Nonrecourse Liabilities of the Partnership shall be allocated among
the Partners in the same manner as Losses are allocated pursuant to
Section 9.1.C(i) hereof.
Nonrecourse Deductions for any fiscal year of the Partnership or other
period shall be specially allocated 99.98% to the Investor Limited
Partner, .01% to the Special Limited Partner and .01% to the General
Partner.
Any Partner Nonrecourse Deductions for any fiscal year of the
Partnership or other period shall be specially allocated to the
Partner who bears the risk of loss with respect to the Partner
Nonrecourse Debt to which such Partner Nonrecourse Deductions are
attributable.
All Credits shall be allocated 99.98% to the Investor Limited Partner,
.01% to the Special Limited Partner and .01% to the General Partner.
Where a distribution of an asset is made in the manner described in
Section 734 of the Code, or where a transfer of an Interest permitted
by this Agreement is made in the manner described in Section 743 of
the Code, the Partnership shall file, upon the request of the Special
Limited Partner, an election under Section 754 of the Code, in
accordance with the procedures set forth in the applicable
Regulations. Subject to Section 5.2 hereof, all other elections
required or permitted to be made by the Partnership under the Code
shall be made in such manner as, in the opinion of the Special Limited
Partner with the advice of the Accountants and legal counsel for the
Partnership, will be most advantageous to the Investor Limited
Partner.
Except as otherwise provided herein, each Partner shall be allocated
Profits and Losses in accordance with this Section 9.1 from the date
on which it is admitted to the Partnership. For purposes of
determining the Profits, Losses, or any other items allocable to any
period, Profits, Losses, and any such other items shall be determined
on a daily, monthly, or other basis, as determined by the General
Partners using any permissible method under Section 706 of the Code
and the Regulations promulgated thereunder.
Notwithstanding the other provisions of this Section 9.1, if any of
the allocations provided in this Section 9.1 would not result in an
aggregate allocation of Profits, Losses and credits to the General
Partner in an amount equal to at least .01% of the Profits, Losses and
credits allocable to all Partners in any fiscal year, then the amounts
otherwise allocable to the Limited Partner and the Special Limited
Partner shall be reduced in order to assure that the General Partner
receives an aggregate allocation of at least .01% of all Profits,
Losses and credits allocable to all Partners in any fiscal year.
If any fee or other compensation payable from the Partnership to a
Partner or an Affiliate of a Partner is treated as a distribution for
income tax purposes, there shall be allocated to the recipient Partner
or Affiliate of a Partner an amount of income equal to the amount of
such payment in the year in which such payment is made or in the first
succeeding year in which the Partnership realizes income.
9.2 Distribution and Application of Cash Flow and Proceeds From Sale
or Refinancing Transactions.
Except as otherwise provided by this Agreement or required by law
(including all applicable rules, directives and regulations of each
Authority), cash distributions shall be made to the Partners on the
following bases within 60 days after the end of each calendar quarter:
Cash Flow shall be applied in the following order of priority:
To repay any loan payable to any Partner other than the General
Partner;
To the Limited Partners, an amount or amounts equal to the unpaid
balance of any Voluntary Loan made by them and to the General Partner,
to pay the difference, if positive, between an amount or amounts equal
to the unpaid balance of any Voluntary Loan made by it and an amount
equal to any accrued and unpaid Credit Reduction Payments;
In the event the Partnership is unsuccessful in refinancing the
Permanent Loan on February 28, 1999, Cash Flow will be paid to Xxxx as
follows:
(a) If the Permanent Lender agrees to reduce the principal of the
Permanent Loan to reflect the payment of $1,500,000 and to reamortize
the Permanent Loan with such new principal balance, until Xxxx has
received an amount equal to $1,500,000 plus a non-compounded return on
the unreturned portion of such amount equal to (i) 9% beginning on
February 28, 1999 until August 31, 1999 and (ii) 11% per annum after
August 31, 1999 until Xxxx has been repaid the $1,500,000, all Cash
Flow up to an amount equal to the difference between (1) the monthly
payment of principal and interest under the Permanent Loan prior to
the reduction of the principal amount and the reamortization and (2)
the monthly payment of principal and interest under the Permanent Loan
after the reduction of the principal and the reamortization will be
paid to Xxxx, or
(b) If the Permanent Lender does not agree to reduce the principal of
the Permanent Loan to reflect the payment of the $1,500,000 and to
reamortize the Permanent Loan with such new principal balance, until
Xxxx has received an amount equal to $1,500,000 plus a non-compounded
return on the unreturned portion of such amount equal to (i) 9% per
annum beginning on February 28, 1999, until August 31, 1999 and (ii)
11% per annum after August 31, 1999 until Xxxx has been repaid the
$1,500,000, all Cash Flow will be paid to Xxxx.
To pay the difference, if positive, between any accrued but unpaid
Management Fees (described in Section 8.1.B) and an amount equal to
any accrued and unpaid Credit Reduction Payments;
To the Special Limited Partner, an amount equal to any accrued Annual
Local Administrative Fees pursuant to the terms of Section 6.3 hereof;
To the General Partner to pay any principal and interest due and
payable under the Contractor Note (reduced by an amount equal to any
accrued and unpaid Credit Reduction Payments);
To the extent of 50% of the remaining Cash Flow, to the Guarantor, to
pay the difference, if positive, between an amount or amounts equal to
the unpaid balance of any Operating Loan made by it and an amount
equal to any accrued and unpaid Credit Reduction Payments;
To the General Partner to pay the difference if positive, between (A)
a non-cumulative, non-interest bearing priority return in the amount
of $50,000 and (B) an amount equal to any accrued and unpaid Credit
Reduction Payments;
To the General Partner, to pay the difference, if positive, between
the Asset Management Fee described in Section 6.5 and an amount equal
to any accrued and unpaid Credit Reduction Payments;
To the extent of 40% of the remaining Cash Flow, to the General
Partner, to pay the difference, if positive, between the Supervisory
Management Fee and an amount equal to any accrued and unpaid Credit
Reduction Payments; and
Of the remainder, 49.89% to the Investor Limited Partner, 50.1% to the
General Partner (reduced by an amount equal to any accrued and unpaid
Credit Reduction Payments, which amount shall be distributed 99% to
the Investor Limited Partner and 1% to the Special Limited Partner)
and .01% to the Special Limited Partner.
Subject to the provisions of Sections 9.2.D and 12.4 hereof, Sale or
Refinancing Transaction Proceeds shall be applied in the following
order of priority:
To the payment of all of the expenses of such Sale or Refinancing
Transaction, and, with regard to damage recoveries or insurance or
condemnation proceeds (other than for temporary loss of use), to the
payment of all repairs, replacements or renewals resulting from damage
to or partial condemnation of the affected property;
To Xxxx, in an amount equal to the excess of (I)(A) Xxxx'x $1,500,000
Capital Account, plus (B) a return on Xxxx'x Capital Account
calculated in the same manner as interest at a rate of 9% per annum,
beginning on February 28, 1999 until August 31, 1999 on which date
such 9% rate shall increase to 11% until paid over (II) amounts
previously distributed to Xxxx pursuant to this Section 9.2.B(ii) and
9.2.A(iii);
To establish such reserves as the General Partner in its sole
discretion determines to be reasonably necessary for any contingent or
foreseeable liability or obligation of the Partnership; provided,
however, that the balance of any such reserve remaining at such time
as the General Partner shall reasonably determine that such reserve is
no longer necessary shall be distributed in accordance with
subparagraphs (iv) through (xii) of this Section 9.2.B;
To repay any loan payable to any Partner other than the General
Partner;
To the Limited Partners, an amount or amounts equal to the unpaid
balance of any Voluntary Loan made by them and to the General Partner,
to pay the difference, if positive, between an amount or amounts equal
to the unpaid balance of any Voluntary Loan made by it and an amount
equal to any accrued and unpaid Credit Reduction Payments;
To the General Partner, to pay the difference, if positive, between
(A) a one-time disposition fee in an amount equal to the difference
between (x) six (6%) percent of the gross sales price of the Apartment
Complex and (y) all expenses (including all third-party commissions)
incurred with respect to such sale and (B) an amount equal to any
accrued and unpaid Credit Reduction Payments.
To the Special Limited Partner, an amount equal to any accrued Annual
Local Administrative Fees pursuant to the terms of Section 6.3 hereof;
To the Guarantor, to pay the difference, if any, between an amount or
amounts equal to the unpaid balance of any Operating Loan made by it
and an amount equal to any accrued and unpaid Credit Reduction
Payments;
To the Investor Limited Partner until the Investor Limited Partner has
received an amount equal to the aggregate of the Investor
Contributions, reduced by the amount of all prior distributions under
this Section 9.2.B(ix);
To the Special Limited Partner, an amount equal to its Capital
Contributions, reduced by the amount of all prior distributions under
this Section 9.2.B(x);
To the General Partner, an amount equal to the difference, if
positive, between (A) an amount equal to any distributions paid to the
Investor Limited Partner under Section 9.2.(B)(ix) and (B) an amount
equal to all accrued and unpaid Credit Reduction Payments; and
The balance, if any, 49.89% to the Investor Limited Partner, .01% to
the Special Limited Partner and 50.1% to the General Partner (reduced
by an amount equal to any accrued and unpaid Credit Reduction
Payments, which amount shall be distributed 99% to the Investor
Limited Partner and 1% to the Special Limited Partner.
Except as otherwise provided in this Section 9.2, each Partner shall
share in distributions in accordance with this Section 9.2 from the
date on which such Partner is admitted to the Partnership.
In the event that the amount of the Credits finally allowed to the
Partnership and allocated to the Limited Partners during any calendar
year during the Credit Period with respect thereto is less than 99.99%
of the amount specified on Exhibit A to the Recapture Guaranty
Agreement for such year for any reason other than a change in law,
including, without limitation, the failure of the Partnership to
operate the Apartment Complex so as to have 100% of the Apartment
Units therein eligible for Credits for any such year, the "Return
Amount" shall be calculated. The "Return Amount" shall be an amount
equal to the excess of (a)(I) the amount, if any, by which 99.99% of
the Credit Amount exceeds the amount of Credits finally allowed to the
Partnership and allocated to the Limited Partners with respect to any
such calendar year plus (II) 15% per annum thereon calculated from the
end of the calendar year in question until the Return Amount is paid
as provided herein, over (b)(I) the amount, if any, by which the
Credits finally allowed to the Partnership and allocated to the
Limited Partners with respect to any other calendar year during the
Credit Period exceeds 99.99% of the Credit Amount plus (II) 15% per
annum thereon calculated from the end of the calendar year in question
until the Return Amount is paid as provided herein. If the Partnership
claims Credits for less than 12 calendar months with respect to any
taxable year, then the calculation of the Return Amount with respect
to such taxable year shall be made by proportionally pro rating the
Credit Amount. At the time of distribution of any Sale or Refinancing
Transaction Proceeds pursuant to Section 9.2.B hereof, there shall be
distributed to the Investor Limited Partner, out of any Sale or
Refinancing Transaction Proceeds that would otherwise have been
distributed to the General Partner under such section, an amount equal
to the Return Amount, before the General Partner and the Guarantor
shall be distributed any such proceeds pursuant to such section, and
an appropriate adjustment to the allocation of Profits and Losses
shall be made. A distribution pursuant to the preceding sentence shall
not be required to the extent that it would duplicate an amount
previously paid to the Investor Limited Partner pursuant to the
Recapture Guaranty Agreement or as a Credit Reduction Payment
hereunder. For purposes of this Section 9.2.D, a Credit with respect
to a taxable year shall be deemed finally allowed upon the latest to
occur of the following: (I) the period for assessment of a deficiency
for such taxable year shall have expired without a deficiency being
assessed by the Internal Revenue Service against any Partner with
respect to the Credit claimed by the Partnership for such taxable
year; or (II) if such deficiency is so assessed, the determination by
the Internal Revenue Service as to the amount of the Credit for such
taxable year is no longer subject to petition to the United States Tax
Court; or (III) if a petition with respect to such determination is
filed with such court, a decision by such court as to the amount of
the Credit for such taxable year becomes final and not subject to
appeal; or (IV) if an appeal from such decision is filed, a decision
of a court upon such appeal becomes final and not subject to further
appeal. Any Credits which are recaptured pursuant to Section 42 of the
Code, other than due to an Assignment of an Interest or a disposition
of the Apartment Complex that occurs with the Consent of the Special
Limited Partner, shall be deemed not to have been finally allowed for
purposes of this Section 9.2.D.
9.3 Overriding Allocations of Profits and Losses.
Notwithstanding anything contained in Section 9.1 hereof or this
Section 9.3 to the contrary, if there is a net decrease in Partnership
Minimum Gain during any taxable year of the Partnership, except as
otherwise permitted by Sections 1.704-2(f)(2), (3), (4) and (5) of the
Regulations, items of Partnership income and gain for such taxable
year (and subsequent years, if necessary) in the order provided in
Section 1.704-2(j)(2)(i) of the Regulations shall be allocated among
all Partners whose shares of Partnership Minimum Gain decreased during
that year in proportion to and to the extent of such Partner's share
of the net decrease in Partnership Minimum Gain during such year. The
allocation contained in this Section 9.3.A(i) is intended to be a
minimum gain chargeback within the meaning of Section 1.704-2 of the
Regulations, and shall be interpreted consistently therewith.
Notwithstanding anything contained in Section 9.1 hereof or this
Section 9.3 to the contrary, if there is a net decrease in Partner
Nonrecourse Debt Minimum Gain, except as provided in Section
1.704-2(i) of the Regulations, items of Partnership income and gain
for such taxable year (and subsequent years, if necessary) in the
order provided in Section 1.704-2(j)(2)(ii) of the Regulations shall
be allocated among all Partners whose share of Partner Nonrecourse
Debt Minimum Gain decreased during that year in proportion to and to
the extent of such Partner's share of the net decrease in Partner
Nonrecourse Debt Minimum Gain during such year. This Section 9.3.A(ii)
is intended to comply with the minimum gain chargeback requirement in
Section 1.704-2 of the Regulations and shall be interpreted
consistently therewith.
Notwithstanding any provisions of Section 9.1 hereof or this Section
9.3 to the contrary, in the event any Partner unexpectedly receives
any adjustments, allocations, or distributions described in Section
1.704-1(b)(2)(ii)(d)(4), (5), or (6) of the Regulations, items of
Partnership income and gain (including gross income) shall be
specially allocated to each such Partner in an amount and manner
sufficient to eliminate, to the extent required by the Regulations,
the Adjusted Capital Account Deficit of such Partner as quickly as
possible, provided that an allocation pursuant to this Section 9.3.B
shall be made only if and to the extent that such Partner would have
an Adjusted Capital Account Deficit. In the event that any such
adjustments, allocations or distributions create an Adjusted Capital
Account Deficit for more than one Partner in any taxable year of the
Partnership, all such items of income and gain of the Partnership for
such taxable year and all subsequent taxable years shall be allocated
among all such Partners in proportion to their respective Adjusted
Capital Account Deficits in such amount and manner sufficient to
eliminate such Adjusted Capital Account Deficits as quickly as
possible. The allocation contained in this Section 9.3.B is intended
to be a "qualified income offset" within the meaning of Section
1.704-1(b)(2)(ii)(d) of the Regulations, and shall be subject thereto.
Sections 9.3.A and 9.3.B hereof shall be applied in the order provided
in Section 1.704-2 of the Regulations.
Notwithstanding any provisions of Section 9.1 hereof or this Section
9.3 to the contrary, but subject to the provisions of Sections 9.3.A,
9.3.B and 9.3.C hereof:
(a) in accordance with Section 704(c) of the Code and the Regulations
promulgated thereunder, income, gain, loss, and deduction with respect
to any property contributed to the capital of the Partnership shall,
solely for tax purposes, be allocated among the Partners as provided
in Section 704(c) of the Code 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 initial Gross Asset Value; (b) in
the event the Gross Asset Value of any Partnership asset is adjusted
as provided herein, 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
Section 704(c) of the Code and the Regulations promulgated thereunder;
and (c) any elections or other decisions relating to the allocations
provided in this Section 9.3.D(i) shall be made by the General Partner
with the Consent of the Special Limited Partner as provided in Section
704(c) of the Code in any manner that reasonably reflects the purpose
and intention of this Agreement; allocations pursuant to this Section
9.3.D(i) 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 Profits, Losses, other
items, or distributions pursuant to any provision of this Agreement;
the General Partner shall be allocated an amount of deductions equal
to any interest expense allowed to the Partnership in connection with
any Operating Loans;
in the event that the General Partner is allocated more than .01% of
the Losses pursuant to Section 9.1.C(ii) hereof, the General Partner
shall thereafter be allocated all Profits to the extent that the
aggregate Losses theretofore allocated to the General Partner pursuant
to Section 9.1.C(ii) hereof shall have exceeded the Losses that would
have otherwise theretofore been allocated to the General Partner had
the provisions of Section 9.1.C(ii) hereof not been given effect;
in the event any Partner has a deficit Capital Account at the end of
any fiscal year of the Partnership that is in excess of the sum of (a)
the amount such Partner is obligated to restore to its Capital Account
(pursuant to the terms of such Partner's promissory note or otherwise)
and (b) the amount such Partner is deemed to be obligated to restore
to its Capital Account pursuant to the penultimate sentences of
Sections 1.704-2(g)(1) and 1.704-2(i)(5) of the Regulations, each such
Partner shall be specially allocated items of Partnership income and
gain in the amount of such excess as quickly as possible, provided
that an allocation pursuant to this Section 9.3.D(iv) shall be made if
and only to the extent that such Partner would have a deficit Capital
Account in excess of such sum after all other allocations provided for
in this Article IX have been tentatively made as if Section 9.3.B
hereof and this Section 9.3.D(iv) were not in this Agreement;
to the extent the Partnership has taxable interest income with respect
to any promissory note issued by a Partner pursuant to Section 483,
Sections 1271 through 1288 or Section 7872 of the Code:
(a) such interest income shall be specially allocated to the Partner
to whom such promissory note relates; and
(b) the amount of such interest income shall be excluded from the
Capital Contributions credited to such Partner's Capital Account in
connection with payments of principal with respect to such promissory
note; and
The Limited Partner shall be allocated an amount of Profits resulting
from a Sale or Refinancing Transaction equal to the Return Amount.
Xxxx shall be specially allocated an amount of gross income equal to
the amount distributed to Xxxx pursuant to Section 9.2.B(ii)(I)(B) and
any distributions pursuant to 9.2.A(iii) that represent the return on
the $1,500,000 payable to Xxxx and any payments to Xxxx made pursuant
to Section 6.6 hereof. The General Partner shall be specially
allocated an amount of gross income equal to the amount distributed to
the General Partner pursuant to Section 9.2.A (viii).
ARTICLE X
TRANSFER OF LIMITED PARTNER INTERESTS; SUBSTITUTED PARTNERS; ASSIGNEES
10.1 Assignment of Limited Partner Interests.
The Investor Limited Partner and the Special Limited Partner
shall have the right at any time to make an Assignment of their
Interests without the consent or approval of the General Partner or
any other Partner. The General Partner shall cooperate with the
Investor Limited Partner and the Special Limited Partner in
facilitating such Assignment by promptly furnishing complete and
accurate financial and other relevant data regarding the Partnership,
the Apartment Complex, the General Partners and the Affiliates of the
General Partner and any other matters reasonably necessary in the
judgment of the Special Limited Partner to facilitate and effect such
Assignment. Each Assignee of an Interest transferred in accordance
with this Section 10.1 shall be automatically admitted to the
Partnership as a Substituted Partner without necessity of General
Partners approval; provided, however, that each Substituted Limited
Partner shall execute such instrument or instruments as shall be
required by the General Partners to signify its agreement to be bound
by all the provisions of this Agreement, the Project Documents, if
required, and shall pay reasonable legal fees and filing costs in
connection with its substitution as a limited partner hereunder. The
Investor Limited Partner and the Special Limited Partner shall notify
the General Partner as to any proposed Assignment of their Interests.
10.2 Substituted Partners; Admission.
The General Partner may not admit any additional partners to the
Partnership without the Consent of the Special Limited Partner.
Any Assignee shall not be admitted as a Substituted Partner unless (i)
the Assignee expressly agrees to be bound, to the same extent as the
Assignor, by the provisions of this Agreement, the Project Documents
and any other documents required in connection therewith and to assume
the obligations of the Assignor hereunder and (ii) the Assignee shall
have agreed to pay all reasonable expenses and legal fees relating to
the Assignment and its admission as a Substituted Partner.
Upon the admission of a Substituted Partner, Schedule A shall be
amended to reflect the name and address of such Substituted Partner
and to eliminate the name and address of the Assignor, and an
amendment to this Agreement reflecting such admission shall be filed
in accordance with the Uniform Act. No consent or approval of the
Investor Limited Partner or Special Limited Partner (other than the
Assignor and the Assignee) shall be required and the General Partner
may exercise the power of attorney granted in Section 14.2 hereof to
effect the provisions of this Article X.
10.3 Assignees.
Any Person who acquires in any manner whatsoever any Interest,
irrespective of whether such Person has accepted and adopted in
writing the terms and provisions of this Agreement, shall be deemed by
the acceptance of the benefit of the acquisition thereof to have
agreed to be subject to and bound by all the obligations of this
Agreement that any predecessor in interest of such Person was subject
to or bound by. A Person acquiring an Interest, including the personal
representatives and heirs of a deceased Partner, shall have only such
rights, and shall be subject to all the obligations, as are set forth
in this Agreement; and, without limiting the generality of the
foregoing, such Person shall not have any right to have the value of
his Interest ascertained or receive the value of such Interest or, in
lieu thereof, profits attributable to any right in the Partnership,
except as herein set forth.
Any Assignee of an Interest pursuant to an Assignment satisfying the
conditions of this Article X who does not become a Substituted Partner
in accordance with this Article X shall have the right to receive the
same share of the Profits and Losses and distributions of the
Partnership to which his Assignor would have been entitled. If such
Assignee desires to make an Assignment of his Interest, he shall be
subject to all the provisions of this Article X to the same extent and
in the same manner as any Partner desiring to make an Assignment.
Any Partner who shall Assign all of his Interest shall cease to be a
Partner and shall no longer have any rights or privileges of a Partner
except that, unless and until his Assignee is admitted to the
Partnership as a Substituted Partner in accordance with this Article
X, such Assignor shall retain all rights and be subject to all
obligations under the Uniform Act.
In the event of an Assignment, the obligation of the Assignor to make
Capital Contributions hereunder shall be extinguished only by and to
the extent of Capital Contributions made by him or his Assignee.
In the event that an Assignment shall be made, there shall be filed
with the Partnership a duly executed and acknowledged counterpart of
the instrument making such Assignment. Such instrument must evidence
the written acceptance of the Assignee to all the terms and provisions
of this Agreement. If such an instrument is not so filed, the
Partnership need not recognize any such purported Assignment for any
purpose.
ARTICLE XI
WITHDRAWAL OF A GENERAL PARTNER; NEW GENERAL PARTNERS
11.1 Withdrawal.
A General Partner may not Withdraw (other than an Involuntary
Withdrawal) from the Partnership or Assign, pledge or encumber all or any
part of its General Partner Interest (except for that certain pledge of
Cash Flow by HOMES to Xxxx to the extent the Special Limited Partner has
reviewed and approved same) without the Consent of the Special Limited
Partner, and, to the extent required, of each Authority and each Lender.
The consent of the Investor Limited Partner shall not be required. For
purposes of this Agreement, the sale, transfer, or other conveyance, or the
pledge or encumbering, of any share of capital stock of a General Partner
shall be deemed an Assignment by that General Partner of its General
Partner Interest. Each General Partner shall indemnify and hold harmless
the Partnership and all Partners from any Withdrawal or Assignment in
violation of Section 11.1.A hereof or in violation of any of the Project
Documents. In the event of a Withdrawal of a General Partner (other than an
Involuntary Withdrawal) or the Assignment, pledge or encumbrance of any
part of its General Partner Interest in violation of Section 11.1.A hereof,
the Interest of the General Partner who so Withdrew, Assigned, pledged or
encumbered any part of its Interest shall immediately and automatically
terminate on the effective date of such Withdrawal (or the effective date
of such Assignment, pledge or encumbrance) and such General Partner shall
have no further right to participate in the management or operation of the
Partnership or to receive any future allocations of Profits and Losses, any
distributions from the Partnership or any other funds or assets of the
Partnership, nor shall it be entitled to receive or to be paid by the
Partnership any further payments of fees (including fees which have been
earned but are unpaid) or to be repaid any outstanding advances or loans
made by it to the Partnership. From and after the effective date of such
Withdrawal, Assignment, pledge or encumbrance, the rights of the
Withdrawing General Partner to receive or to be paid such allocations,
distributions, funds, assets, fees or repayments shall be reallocated to
the other General Partner or General Partners, or if the Special Limited
Partner becomes a general partner of the Partnership at that time, to the
Special Limited Partner. Notwithstanding such Withdrawal, Assignment,
pledge or encumbrance, and loss of any right to receive such allocations,
distributions, funds, assets, fees and repayments, the Withdrawing General
Partner shall remain liable to the Partnership and the other Partners for
only those obligations incurred by it while it was General Partner under
this Agreement. Notwithstanding anything herein to the contrary, any
remaining Partner shall have all other rights and remedies against the
Withdrawing General Partner as provided by law.
Upon the Involuntary Withdrawal of the General Partner, the General
Partner's Interest shall automatically become an Interest of a Class B
Limited Partner. Until the purchase of such Class B Limited Partner
Interest shall occur pursuant to the provisions of Section 11.3.B hereof,
the Class B Limited Partner shall be entitled to receive the fees payable
to the Withdrawing General Partner set forth in Article VI hereof accrued
to the date of such Withdrawal, to be repaid any outstanding advances or
loans made by the Withdrawing General Partner to the Partnership and to
share in the Profits and Losses and distributions at the same times and in
the same manner as the Withdrawing General Partner would have otherwise
received as a General Partner, but shall not be entitled to participate in
the management of the Partnership's business or to participate in any
allocation of profits and losses and distributions payable to the Investor
Limited Partner or the Special Limited Partner.
11.2 Effect of Withdrawal; Election to Continue Business.
Upon the occurrence of an event giving rise to a Withdrawal of a
General Partner, (A) any remaining General Partner, if any, or, if
there be no remaining General Partner, the Withdrawing General Partner
or its legal representative shall promptly notify the Limited Partners
of such Withdrawal (the "Withdrawal Notice"), (B) the Special Limited
Partner shall have the right to become an additional General Partner
(and to become the Managing General Partner if the Withdrawing General
Partner was previously the Managing General Partner) and (C) the
Partnership shall continue; provided, however, the Partnership shall
be dissolved and terminated if there is no General Partner (and the
Special Limited Partner does not exercise its right to become an
additional General Partner). The Withdrawal of a General Partner shall
not be deemed to be effective until the expiration of 90 days from the
day on which the Withdrawal Notice has been mailed to the Limited
Partners. A Withdrawn General Partner shall remain liable for
obligations incurred by it under this Agreement through the effective
date of its Withdrawal, whether or not such Withdrawal shall be an
Involuntary Withdrawal and in compliance with or in violation of this
Agreement.
11.3 Formation of New Partnership.
Subject to the provisions of Section 11.1.A hereof, upon the
occurrence of an event giving rise to the Withdrawal of a General Partner,
if there is then no other General Partner (and the Special Limited Partner
does not elect to become a General Partner), the Limited Partners may
unanimously elect within 120 days thereafter to form a new partnership on
substantially identical terms to those of this Agreement to carry on the
business of the Partnership. In so doing, the Limited Partners shall
designate a successor general partner to serve in place of the Withdrawing
General Partner with the approval of each Authority and each Lender, if
such approval is required; provided, however, that no Person shall be
designated or admitted as a successor general partner if he is below the
age of majority in the State or has theretofore been adjudged insane or
incompetent, and unless, in the opinion of the Partnership's counsel, such
Person has a financial net worth to assure that he shall satisfy the
financial net worth requirements of the Internal Revenue Service for the
Partnership to continue to be treated as a partnership for Federal income
tax purposes.
If the Limited Partners shall designate a successor general partner
and obtain all necessary approvals therefor, the Class B Limited Partner
Interest of the Withdrawing General Partner where the Withdrawal was
Involuntary shall be transferred to the successor general partner upon its
written assumption of the obligations of the Withdrawing General Partner
under this Agreement (except for any obligations of the Withdrawing General
Partner under this Agreement specifically excepted by the Special Limited
Partner). In such event, the successor general partner shall pay to the
Withdrawing General Partner or its legal representative as the purchase
price for its Class B Limited Partner Interest an amount to be agreed upon
between them.
If no agreement can be reached as to the amount of the purchase price
for the Class B Limited Partner Interest of the Withdrawing General Partner
under Section 11.3(B)(i) hereof and if the successor general partner does
not own a .01% interest in all material items of profits and losses and
distributions of the Partnership, each limited partner of the Partnership
(including the Person succeeding to the Interest of the Withdrawing General
Partner as a Class B Limited Partner and any other Class B Limited Partner)
shall transfer a pro rata portion of his Interest to the successor general
partner in an amount sufficient to give the successor general partner such
.01% interest and the successor general partner shall pay to each limited
partner of the Partnership (including the Person succeeding to the Interest
of the Withdrawing General Partner as a Class B Limited Partner and any
other Class B Limited Partner) as the purchase price for his Interest, an
amount determined by the Special Limited Partner.
In exercising the election permitted under Section 11.3.A hereof, the
successor general partner and all the limited partners of the Partnership
agree to be bound by the provisions of this Agreement; provided, however,
that if this Agreement is amended by them, no amendment shall be made
without the Consent of the Special Limited Partner and unless counsel to
the Partnership shall issue an opinion that the Partnership shall continue
to be treated as a partnership for Federal income tax purposes; provided,
further, however, that the amended agreement shall be as similar in form
and substance to this Agreement as practicable and the successor
partnership shall engage in the same business as the Partnership employing
the assets and name of the Partnership to the extent possible.
Any new limited partnership formed pursuant to this Section 11.3 shall
succeed to all rights and assets of the Partnership subject to all
liabilities of the Partnership. Each limited partner of the Partnership
shall be a limited partner of any limited partnership formed pursuant to
this Section 11.3 and agrees to execute all documents and take such further
action as may be necessary in connection therewith. Until such time as the
new limited partnership agreement is executed by all of the Partners, this
Agreement shall continue to be binding on all of the partners of the
Partnership. Upon execution of a declaration to be bound by the terms of
this Agreement and delivery of such declaration to any Partner of the
Partnership, the general partner of such new limited partnership shall
succeed to all the rights and liabilities of the then general partners of
the Partnership under this Agreement.
11.4 Special Removal Rights.
Notwithstanding any other provision of this Agreement to the contrary,
in the event that the General Partner or Guarantor shall:
(a) materially violate its fiduciary responsibilities as a General
Partner or as a Guarantor of the Partnership;
(b) be in material breach of this Agreement or the Contribution
Agreement or any of the Other Guaranties for ten days after notice thereof
has been given by the Special Limited Partner; provided, however, that if
such breach is of the type that cannot reasonably be cured within ten days,
the Special Limited Partner shall not have the right to remove a General
Partner under this Section 11.4.A(i)(b) with respect to such breach for a
60-day period after such notice is given so long as the General Partners
are diligently pursuing a cure of such breach at all times during such
60-day period;
(c) willfully violate any law, regulation or order applicable to the
Partnership which has a material adverse financial impact on the
Partnership or the Apartment Complex; or
(d) become Bankrupt;
the Partnership shall:
(a) be in material breach of or have suffered a material event of
default to occur under any Project Document (other than the Contribution
Agreement) or any other material agreement or document affecting the
Partnership or the Limited Partners to which it is a party; or
(b) (I) at any time (v) prior to the commencement of the Guaranty
Period, if the Guarantor is at such time in default of its obligations
under the Development Deficit Guaranty Agreement, or (w) during the
Guaranty Period if the Guarantor is at such time in default of its
obligations under the Operating Deficit Guaranty Agreement, or (x) after
termination of the Guaranty, have realized a deficit in Cash Flow in each
calendar month for a period of six consecutive months (provided that (y)
unless such deficit has been funded by Voluntary Loans by the General
Partners, the number "six" in this clause (I) shall be replaced by "one",
and (z) if such deficit in any calendar month shall exceed $10,000 (unless
such deficit has been funded with Voluntary Loans), such month shall be
deemed to be the last month in a period of six consecutive months in which
the Partnership shall have realized a deficit in Cash Flow, (II) have had
less than 100% of the apartment units in the Apartment Complex eligible to
receive the Credit in any month, (III) have had the qualified basis (as
defined in Section 42 of the Code) of the Apartment Complex at the end of
any taxable year prior to the taxable year starting January 1, 2012 be less
than the amount of such basis at the close of the preceding tax year, or
(IV) otherwise be in any situation, except where such situation is due to a
change in law, where the amount of the Credits which the Partnership is
entitled to claim under Section 42 of the Code be less than the Credit
Amount (as provided in Exhibit A to the Recapture Guaranty Agreement and as
such number is adjusted pursuant to Section 3.4.B(ii) hereof) in any year
during the Credit Period of the Partnership (other than any year therein in
which Credits may not be claimed for 12 months because the first day of the
Compliance Period was other than the first day of a calendar year); or
(a) an uncured default exists under any agreement or commitment
entered into by the Partnership or binding thereon, or any such agreement
or commitment shall have expired or shall have been terminated by any of
the parties thereto and shall not have been extended, or (b) any Lender
shall have commenced foreclosure proceedings against the Apartment Complex
and such proceedings shall not have been stayed or dismissed within 30 days
unless the Interest of the Investor Limited Partner is purchased by the
General Partners under the Development Deficit Guaranty Agreement;
then, in any such event (a "Major Default") the Special Limited
Partner shall have the right, but not the obligation, in its sole
discretion, (y) in the case of the occurrence of an event specified in
clause (i) of this Section 11.4.A, to remove such General Partner and all
of such General Partner's Affiliates as General Partner of the Partnership
and to appoint itself or any of its Affiliates to succeed such General
Partner as a General Partner of the Partnership in accordance with the
provisions of Section 11.2 hereof, and (z) upon fifteen (15) days' prior
written notice to the General Partner, in the case of the occurrence of an
event specified in clauses (ii) or (iii) of this Section 11.4.A, to remove
the General Partner as General Partner of the Partnership and to appoint
itself or any of its Affiliates to succeed such General Partner as a
General Partner of the Partnership in accordance with the provisions of
Section 11.2 hereof. Each Partner hereby irrevocably constitutes and
appoints the Special Limited Partner as its true and lawful
attorney-in-fact and agent with full power and authority to act in its
name, place and stead to execute, acknowledge, swear to, deliver, file,
record and publish any documents which the Special Limited Partner
reasonably deems necessary or appropriate to confirm and/or effect (x) the
removal of the General Partner as General Partner of the Partnership and
(y) the appointment of the Special Limited Partner or its designee as a
General Partner of the Partnership including, without limitation, to:
(i) To qualify or continue the Partnership as a limited partnership;
(ii) To reflect a modification of the Partnership or an amendment of
this Agreement or the Certificate of Limited Partnership of the Partnership
in accordance with the terms hereof; and
(iii) To effect transfers, admissions, withdrawals and substitutions
of Partners as provided under the terms of this Agreement.
The General Partner and the Guarantor agree to indemnify and hold the
Limited Partners harmless from and against all losses, costs and expenses
incurred in connection with a Major Default (other than pursuant to Section
11.4.A(ii)(b) hereof) and the exercise of any of the remedies provided
above, including, without limitation, all legal fees and other expenses of
the Limited Partners in connection with the transaction.
The removal of the General Partner pursuant to Section 11.4.A hereof
(other than Section 11.4.A(i)(d) hereof) shall be treated for purposes of
this Agreement as a voluntary Withdrawal of such General Partner from the
Partnership. The removal of the General Partner pursuant to Section
11.4.A(i)(d) shall be treated for purposes of this Agreement as an
Involuntary Withdrawal of such General Partners from the Partnership.
11.5 Additional General Partners.
At any time, the General Partner, with the Consent of the Special
Limited Partner and subject to any applicable approvals of each Authority
and each Lender, may admit an additional general partner to the Partnership
with such share of the aggregate General Partner's Interest as shall be
agreed upon between the General Partners and the additional general
partner. Any additional general partner, as a condition of receiving any
Interest, shall agree to be bound by the Project Documents and any other
document required in connection therewith and by the provisions of this
Agreement to the same extent and on the same terms as the General Partner.
11.6 Amendment of Schedule and Agreement.
Upon the admission of a successor or additional general partner or the
Withdrawal of a General Partner in accordance with the terms and conditions
hereof, Schedule A attached hereto shall be amended to reflect such
admission or Withdrawal and such amendment shall be filed as required by
the Uniform Act. The General Partner may exercise the power of attorney
granted in Section 14.2 hereof and the Special Limited Partner may exercise
the power of attorney granted in Section 11.4 hereof to effect the
provisions of this Section 11.6.
11.7 Survival of Liabilities.
It is expressly understood that no Withdrawal, Assignment, pledge or
encumbrance of a General Partners's Interest, even if it results in the
substitution of the Assignee as a Partner, shall release the Withdrawing
General Partners from any liability to the Partnership which shall survive
such Withdrawal, Assignment, pledge or encumbrance, including those set
forth in the Uniform Act.
ARTICLE XII
DISSOLUTION AND TERMINATION OF THE PARTNERSHIP
12.1 Events Which Cause a Dissolution.
The Partnership shall continue in full force and effect until December
31, 2037, except that the Partnership shall be dissolved prior thereto upon
the happening of any of the following events:
An election to dissolve the Partnership made in writing by the General
Partner, with the Consent of the Special Limited Partner;
The Withdrawal of the General Partner if the Partnership is not
continued in accordance with Section 11.2 hereof;
Any event which shall make it unlawful for the existence of the
Partnership to be continued; or
The sale or other disposition of all or substantially all of the
assets of the Partnership.
12.2 Actions of Liquidating Agent Upon Dissolution.
Upon the dissolution of the Partnership, the Partnership shall be
liquidated in accordance with this Article XII and the Uniform Act. The
liquidation shall be conducted and supervised by the General Partner or, if
there is no remaining general partner, by a person who shall be designated
for such purpose by the Special Limited Partner (the General Partner, or
such person so designated, being hereinafter referred to as the
"Liquidating Agent"). The Liquidating Agent shall have all of the rights in
connection with the liquidation and termination of the Partnership that a
general partner would have with respect to the assets and liabilities of
the Partnership during the term of the Partnership, and the Liquidating
Agent is hereby expressly authorized and empowered to effectuate the
liquidation and termination of the Partnership and the transfer of any
assets and liabilities of the Partnership. The Liquidating Agent shall have
the right from time to time, by revocable powers of attorney, to delegate
to one or more persons any or all of such rights and powers and the
authority and power to execute documents in connection therewith, and to
fix the reasonable compensation of each such person, which compensation
shall be charged as an expense of liquidation. The Liquidating Agent is
also expressly authorized to distribute the Partnership's property to the
Partners subject to liens.
12.3 Statements on Termination.
Each Partner shall be furnished with a statement prepared by the
Liquidating Agent which shall set forth the assets and liabilities of the
Partnership as at the date of complete liquidation, and each Partner's
share thereof. Upon compliance with the distribution plan set forth in
Section 12.4 hereof, the Investor Limited Partner and the Special Limited
Partner shall each cease to be a partner of the Partnership, and the
Liquidating Agent shall execute, acknowledge and cause to be filed a
certificate of termination of the Partnership.
12.4 Priority on Liquidation; Distribution of Non-Liquid Assets.
The Liquidating Agent shall, to the extent feasible, liquidate the
assets of the Partnership as promptly as shall be practicable. To the
extent the proceeds are sufficient therefor, as the Liquidating Agent shall
deem appropriate, the proceeds of such liquidation shall be applied in
accordance with the provisions of Section 9.2.B(i) through (viii) hereof,
and the balance of such proceeds shall be distributed by the Liquidating
Agent to the Partners pro rata in accordance with their respective Capital
Accounts, as such accounts are determined after all adjustments are made as
required herein to such accounts for the taxable year of the Partnership
during which the liquidation occurs.
If the Liquidating Agent shall determine with the Consent of the
Special Limited Partner that it is not feasible to liquidate all or part of
the assets of the Partnership or that an immediate sale of all or part of
such assets would cause an undue loss to the Partners, the Liquidating
Agent shall cause the fair market value of the assets not so liquidated to
be determined by independent appraisal. Such assets, as so appraised, shall
be retained or distributed by the Liquidating Agent as follows (it being
understood that the allocation of specific assets pursuant to this Section
12.4 shall require the Consent of the Special Limited Partner):
The Liquidating Agent shall retain assets having a value (which value
shall be equal to the fair market value of such assets less the amount of
any liability related thereto) equal to the amount by which the net
proceeds of the liquidated assets are insufficient to satisfy the
requirements of subparagraphs (i) through (viii) of Section 9.2.B hereof;
and
Thereafter to the Partners pro rata in accordance with their
respective Capital Accounts, as such accounts are determined after all
adjustments are made as required herein to such accounts for the taxable
year of the Partnership during which the liquidation occurs.
Any distribution of assets in kind shall be distributed on the basis
of the fair market value thereof and any Partner entitled to any interest
in such assets shall receive such interest therein as a tenant-in-common
with all other Partners so entitled. If the Liquidating Agent, with the
Consent of the Special Limited Partner, deems it not feasible to distribute
to each Partner an aliquot share of each asset, the Liquidating Agent may
allocate and distribute specific assets to one or more Partners as
tenants-in-common as the Liquidating Agent shall determine with the Consent
of the Special Limited Partner, taking into consideration, inter alia, the
basis for tax purposes of each asset distributed and the effect of
crediting or charging the Capital Accounts for any unrealized appreciation
or unrealized depreciation.
Notwithstanding any other provision of this Article XII, in the event
the Partnership is liquidated within the meaning of Section
1.704-1(b)(2)(ii)(g) of the Regulations but no Event specified in Section
12.1 hereof has occurred, the property of the Partnership shall not be
liquidated, the Partnership's liabilities shall not be paid or discharged,
and the Partnership's affairs shall not be wound up. Instead, the
Partnership shall be deemed to have distributed its property in kind to the
Partners, who shall be deemed to have assumed and taken subject to all
Partnership liabilities, all in accordance with their respective Capital
Accounts. Immediately thereafter, the Partners shall be deemed to have
recontributed such property in kind to the Partnership, which shall be
deemed to have assumed and taken subject to all such liabilities.
12.5 Orderly Liquidation.
A reasonable time shall be allowed for the orderly liquidation of the
assets of the Partnership and the discharge of liabilities so as to
minimize the losses normally attendant upon a liquidation.
12.6 No Goodwill Value.
At no time during continuation of the Partnership shall any value ever
be placed on the Partnership name, or the right to its use, or to the
goodwill appertaining to the Partnership or its business, either as among
the Partners or for the purpose of determining the value of any Interest,
nor shall the legal representatives of any Partner have any right to claim
any such value. In the event of a termination and dissolution of the
Partnership as provided in this Agreement, neither the Partnership name,
nor the right to its use, nor the same goodwill, if any, shall be
considered as an asset of the Partnership, and no valuation shall be put
thereon for the purpose of liquidation or distribution, or for any other
purpose whatsoever; nor shall any value ever be placed thereon as between
the remaining or surviving Partners and the legal representatives of the
estate of any deceased, insane, incompetent, dissolved, liquidated or
Bankrupt Partner.
ARTICLE XIII
FOREIGN PARTNERS
13.1 Certification of Non-Foreign Status.
Each Partner shall upon acquiring a Partnership Interest certify that
he is not a Foreign Person on forms to be provided by the General Partners
at the time of subscription. At any time that an Interest is transferred or
assigned, the transferee shall certify to non-foreign status prior to the
transfer or assignment of such Interest. Such certifications shall be made
on a form to be provided by the General Partners.
Each Partner shall notify the General Partners if he becomes a Foreign
Person within 30 days of such change.
Prior to a disposition of a United States Real Property Interest, a
distribution attributable to a disposition of a United States Real Property
Interest or any other distribution by the Partnership, each Partner may be
required to certify to non-foreign status.
13.2 Withholding of Certain Amounts Attributable to Interests of
Foreign Partners.
In the event that either (y) the Partnership's actual or deemed amount
realized upon disposition of any United States Real Property Interest is
attributed to a Foreign Partner or (z) the Partnership has effectively
connected taxable income for any taxable year:
any tax required to be withheld under Sections 1445 or 1446 of the
Code shall be charged to that Foreign Partner's Capital Account as if the
amount of such tax had been distributed to such Partner;
the General Partner shall have the right to make a loan to the
Partnership in an amount equal to the amount of tax required to be withheld
pursuant to Sections 1445 or 1446 of the Code to the extent that cash is
needed to make the Sections 1445 or 1446 withholding payment attributable
to that Foreign Partner; and
the General Partner may retain appropriate portions of a Foreign
Partner's distributions until any withholding obligations relating to that
Foreign Partner are satisfied and may apply such distributions to repay any
loan made pursuant to Section 13.2.A(ii) hereof.
For purposes of this Section 13.2, any person who fails to provide a
certification of a non-foreign status when requested to do so by the
General Partners shall be treated as a Foreign Person.
ARTICLE XIV
MISCELLANEOUS
14.1 Law Governing.
This Agreement shall be governed by and construed in accordance with
the laws of the State applicable to contracts made and to be performed
entirely therein.
14.2 Power of Attorney.
Each Partner hereby irrevocably constitutes and appoints each General
Partner who is an individual, each general partner of any General Partner
which is a partnership and each of the President, each Vice President and
the Secretary of any corporate General Partners, his true and lawful
attorney-in-fact and agent with full power and authority to act in his
name, place and stead to execute, acknowledge, swear to, deliver, file,
record and publish any documents which such persons reasonably deem
necessary or appropriate:
To qualify or continue the Partnership as a limited partnership;
To reflect a modification of the Partnership or an amendment of this
Agreement in accordance with the terms hereof;
To reflect the dissolution and termination of the Partnership in
accordance with the terms hereof; or
To effect transfers, admissions, withdrawals and substitutions of
Partners as specifically provided under the terms of this Agreement.
No person shall take any action as an attorney-in-fact of the Investor
Limited Partner or any Special Limited Partner which is not authorized by
the terms of this Agreement or would in any way increase the liability of
such Partner beyond the liability expressly set forth in this Agreement.
This power of attorney may be revoked by any Partner by written notice of
revocation (the "Notice of Revocation") to the General Partners. Upon
receipt by the General Partners of a Notice of Revocation, the General
Partners shall file with the appropriate office or agency an amendment to
this Agreement reflecting any such revocation, provided, however, that
until such amendment is filed, any party may rely upon this power of
attorney as being valid.
14.3 Counterparts.
This Agreement may be signed in any number of counterparts, each of
which shall be an original for all purposes, but all of which taken
together shall constitute only one agreement. The production of any
executed counterpart of this Agreement shall be sufficient for all purposes
without producing or accounting for any other counterpart thereof.
14.4 Partners Independently Bound.
The General Partner, the Special Limited Partner and the Investor
Limited Partner shall become bound by this Agreement upon execution thereof
by all Partners.
14.5 Separability of Provisions.
Each provision of this Agreement shall be considered separable and if
for any reason any provision or provisions herein (A) are determined to be
invalid or contrary to any existing or future law, such invalidity shall
not impair the operation of or affect those portions of this Agreement
which are valid or (B) would cause any of the Limited Partners to be bound
by the obligations of the Partnership (other than under the rules,
directives and regulations of any Authority) under the laws of the State as
the same may now or hereafter exist, such provision or provisions shall be
deemed void and of no effect.
14.6 Address and Notice.
All notices, demands, solicitations of consent or approval, and other
communications hereunder required or permitted shall be in writing and
shall be deemed to have been given when personally delivered or five days
after the date when deposited in the United States mail and sent postage
prepaid by registered or certified mail, return receipt requested,
addressed as follows: if intended for (A) the Partnership, to its principal
place of business or (B) the Partners, to their respective addresses set
forth on Schedule A, or to such other address which any Partner shall have
given to the Partnership for such purpose by notice hereunder; provided,
however, that copies of all such items (which shall not constitute notice
hereunder) shall also be sent to Battle Xxxxxx LLP, 00 Xxxx 00xx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000; Attention: Xxxx X. Xxxxxx, Esq.
14.7 Computation of Time.
In computing any period of time pursuant to this Agreement, the day of
the act, event or default from which the designated period of time begins
to run shall not be included.
14.8 Titles and Captions.
All article and section titles or captions contained in this Agreement
are for convenience only and shall not be deemed part of the text of this
Agreement.
14.9 Entire Agreement.
This Agreement and all agreements referenced herein and entered into
by and among the parties hereto constitute the entire understanding between
and among the parties and supersedes any prior understandings and
agreements between and among them respecting the subject matter of this
Agreement. It is expressly agreed that, unless expressly approved by the
Special Limited Partner in writing, any and all agreements previously
entered into among Xxxx, the Partnership, the General Partner or any of
their Affiliates with respect to the subject matter of this Agreement or
the Apartment Complex are deemed null and void except for the following:
(i) Agreement of Purchase and Sale of Partnership Interests in Dallas/Xxxx
Hills, L.P., dated as of September 16, 1996, as amended, together with all
contracts, agreements and documents signed or executed in connection
therewith (to the extent same have been approved in writing by the Special
Limited Partner); (ii) Promissory Note in the amount of $400,000 issued to
Xxxx by the General Partner and guaranteed by the Guarantor; (iii)
Collateral Assignment of Rights in Partnership Interests entered into by
and between the General Partner and Xxxx; and (iv) that certain Indemnity
Agreement entered into by and between Homes For America Holdings, Inc. and
Xxxx. Notwithstanding anything to the contrary in this Section 14.9, to the
extent that any of the provisions of the agreements listed as items (i)
through (iv) in the preceding sentence are inconsistent with the provisions
of this Agreement, the provisions of this Agreement shall control.
14.10 Agreement Binding.
This Agreement shall be binding upon and inure to the benefit of the
heirs, executors, administrators, legal representatives and permitted
successors and assigns of the parties hereto.
14.11 Parties in Interest.
Nothing herein shall be construed to be to the benefit of or
enforceable by any third party including, but not limited to, any creditor
of the Partnership.
14.12 Amendments; Other Actions.
This Agreement may not be amended or modified except by the General
Partner with the Consent of the Special Limited Partner and the approval,
if required, of each Authority; provided, however, that the prior written
consent of all Partners is required to any amendment which would (i) extend
the term of the Partnership as set forth in Section 12.1 hereof, (ii) amend
this Section 14.12, (iii) increase or extend the liability or obligation of
the Investor Limited Partner or any limited partner, (iv) increase the
amount of Capital Contributions payable by the Investor Limited Partner or
any limited partner, (v) accelerate the date of payment of any installment
or (vi) alter the distribution or allocation to the Partners of any profits
and losses and distributions of the Partnership; provided, further,
however, that the Limited Partners may, without the consent of the General
Partners, amend or modify this Agreement in any manner which does not
modify in any manner or to any extent the rights, privileges or liabilities
of the General Partners hereunder or items (i) through (vi) in the first
proviso to this Section 14.12.A.
Notwithstanding any other provision of this Agreement, no action may
be taken under this Agreement unless such action is taken in compliance
with the provisions of the Uniform Act.
C. The General Partners acknowledge and agree that upon receipt of
written notice from the Investor Limited Partner that it desires to
exercise the right(s) of the Special Limited Partner (a) to consent to the
actions specified in Sections 5.5B(iv), (x), (xi) and (xii) hereof, (b) to
receive information and/or reports with regard to the physical and
financial condition of the Apartment Complex and/or (c) under Section 11.4
hereof (including the right to appoint a successor General Partner upon the
removal of a General Partner), such rights shall be exercisable exclusively
by the Investor Limited Partner and this Agreement shall be deemed to have
been so amended to reflect that such rights are to be exercised exclusively
by the Investor Limited Partner.
14.13 Survival of Representations, Warranties and Agreements.
All representations, warranties and agreements shall survive until the
dissolution and termination of the Partnership, except to the extent that a
representation, warranty or agreement expressly provides otherwise.
14.14 Further Assurances.
The Partners will execute and deliver such further instruments and do
such further acts and things as may be required to carry out the intent and
purposes of this Agreement.
14.15 Remedies Cumulative.
No remedy conferred upon or reserved to the Partnership or any Partner
by this Agreement is intended to be exclusive of any other remedy. Each and
every such remedy shall be cumulative and shall be in addition to any other
remedy given to the Partnership or any Partner hereunder or now or
hereafter existing at law or in equity or by statute.
14.16 Meetings.
Meetings of the Partnership may be called by the General Partner or by
the Special Limited Partner for any matters for which the Partners may vote
as set forth in this Agreement or to obtain information concerning the
Partnership. A list of names and addresses of all Partners shall be
maintained as part of the books and records of the Partnership and shall be
made available upon request to any Partner or its representative at cost.
Upon receipt of a request either in person or by registered mail stating
the purposes of the meeting, the General Partner shall provide the
Partners, within ten days after receipt of such request, written notice of
a meeting and the purpose of such meeting to be held on a date not less
than 15 nor more than 30 days after receipt of such request, at a time and
place within or without the State convenient to the Partners.
14.17 Class Z General Partner.
The parties hereto acknowledge and agree that upon the Partnership's
receipt of a form 8609 for each building in the Apartment Complex, Xxxx'x
interest as a Class Z General Partner shall be automatically converted to
an interest as a Class Z Limited Partner; all other provisions relating to
Xxxx shall remain unchanged.
IN WITNESS WHEREOF, this Agreement has been duly executed on the day
and year first above written.
GENERAL PARTNER
XXXX HILLS HOMES FOR AMERICA, INC.
By: /s/ Xxxxxx X. XxxXxxxxxx
----------------------------
Name: Xxxxxx X. XxxXxxxxxx
----------------------------
Title: President/Director
----------------------------
CLASS Z GENERAL PARTNER
By: /s/ Xxxxx Xxxx
-------------------------------
XXXXX X. XXXX
SPECIAL LIMITED PARTNER
RELATED CORPORATE SLP L.P.
By: RCC Asset ManAgers, L.P.,
General Partner
By: RCC General Corporation,
General Partner
By: /s/ Xxxx X. Xxxxxxxxx
-----------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Executive Vice President
LIMITED PARTER
RELATED CORPORATE PARTNERS V, L.P.
By: RCC Asset Managers V. L.L.C.,
Its General Partner
By: /s/ Xxxx X. Xxxxxxxxx
--------------------------------------
Xxxx X. Xxxxxxxxx
Member
WITHDRAWING LIMITED PARTERS
XXX-XXX XX-XXXX HILLS, LTD.,
A Texas limited partnership
By: /s/ Xxxxx Xxxx
----------------------------
Xxxxx Xxxx
JOCK X.X. XXXXXXXX LIVING
TRUST 3/28/89
By: /s/ Xxxxx Xxxx (for Jock X.X. Xxxxxxx Living Trust 3/28/89)
----------------------------------------------------------------
Name:
0000 XXXXXX XXXX, INC.,
a Texas Corporation
By: /s/ Xxxxx Xxxx
-------------------------------------
Name:
/s/ Xxxxx Xxxx (for Xxxxxxx X. Xxxxxx)
--------------------------------------
XXXXXXX X. XXXXXX
SCHEDULE A TO
THE AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP
OF
DALLAS/XXXX HILLS, L.P.
dated as of ----------------, 1997
General Partner Capital Contribution
Xxxx Hills Homes For America, Inc. $1.00
0000 XxXxxxx Xxxxxx, XX
Xxxxx 000 Xxxxxxxxxx, X.X. 00000
Attention: Xxxxxx Xxxx
Special Limited Partner
Related Corporate SLP L.P. $1.00
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Investor Limited Partner
Related Corporate Partners V, L.P. $2,211,910
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Class Z General Partner
Xxxxx X. Xxxx $1,500,000
0000 Xxxxxxx Xxxx
Xxx Xxxx, Xxxxxxxxxx 00000
