Agreement of Limited Partnership - Fairways at Grand Harbor Ltd.
THE SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE BEEN ACQUIRED FOR INVESTMENT
AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
ANY STATE SECURITIES ACT PURSUANT TO APPLICABLE EXEMPTIONS. WITHOUT SUCH
REGISTRATION, SUCH SECURITIES MAY NOT BE SOLD, PLEDGED, HYPOTHECATED OR
OTHERWISE TRANSFERRED AT ANY TIME WHATSOEVER, EXCEPT UPON DELIVERY TO THE
PARTNERSHIP OF AN OPINION OF COUNSEL SATISFACTORY TO THE GENERAL PARTNERS OF THE
PARTNERSHIP THAT REGISTRATION IS NOT REQUIRED FOR SUCH TRANSFER OR THE
SUBMISSION TO THE GENERAL PARTNERS OF THE PARTNERSHIP OF SUCH OTHER EVIDENCE AS
MAY BE SATISFACTORY TO THE GENERAL PARTNERS TO THE EFFECT THAT ANY SUCH TRANSFER
WILL NOT BE IN VIOLATION OF THE SECURITIES ACT OF 1933, AS AMENDED, OR
APPLICABLE STATE SECURITIES LAWS OR ANY RULE OR REGULATION PROMULGATED
THEREUNDER. ADDITIONALLY, ANY SALE OR OTHER TRANSFER OF THESE SECURITIES IS
SUBJECT TO CERTAIN RESTRICTIONS THAT ARE SET FORTH IN THIS AGREEMENT OF LIMITED
PARTNERSHIP.
FAIRWAYS AT GRAND HARBOR, LTD.
AGREEMENT OF LIMITED PARTNERSHIP
THIS AGREEMENT OF LIMITED PARTNERSHIP ("Agreement") is made and entered
into effective as of the day of March, 1998 by and among FAIRWAYS AT GRAND
HARBOR, INC., a Florida Corporation ("Fairways") and BANKATLANTIC VENTURE
PARTNERS 2, INC., a Florida corporation ("BVP") (Fairways and BVP are sometimes
hereinafter referred to individually as "General Partner" and collectively as
the "General Partners") and BANKATLANTIC DEVELOPMENT CORPORATION, a Florida
corporation ("BDC"), J.C. SOLOMON II ("Solomon"), and RAYMOND E. GRAZIOTTO
("Graziotto") (BDC, Solomon, and Graziotto are sometimes hereinafter referred to
individually as "Limited Partner" and collectively as "Limited Partners"), such
execution to evidence the mutual agreement of the parties to form a limited
partnership ("Partnership") under the provisions of the Florida Revised Uniform
Limited Partnership Act (1986), for the purposes and upon the terms and
conditions hereinafter set forth.
W I T N E S S E T H:
WHEREAS, a Certificate of Limited Partnership ("Certificate") legally
creating the Partnership has been filed in the office of the Secretary of State
of the State of Florida; and
WHEREAS, the Partners have formed this Partnership for the purpose of
acquiring property located in Indian River County, Florida pursuant to that
certain Agreement of Purchase and Sale and Option dated July 1, 1997, as amended
September 16, 1997, September 25, 1997, January 22, 1998 and as may be hereafter
amended, by and between Silverwood Development Corporation, as buyer, and GHA
Grand Harbor, Ltd., as seller, ("Purchase Agreement"), which Purchase Agreement
shall
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have the rights as buyer thereunder assigned from Silverwood Development
Corporation to the Partnership, and developing thereon an apartment complex; and
WHEREAS, the parties desire to express, in writing, their mutual
understandings and agreements with respect to the ownership of their interests
in the Partnership.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, and other good and valuable consideration, the parties hereto,
intending to be legally bound, do hereby agree as follows:
ARTICLE I
DEFINITIONS
1.01 Adjusted Capital Account Deficit. With respect to any Partner,
the deficit balance, if any, in such Partner's Capital Account as of the end of
the relevant Fiscal Year, after giving effect to the following adjustments:
(i) Credit to such Capital Account any amounts which such
Partner is obligated to restore pursuant to any provision of this Agreement or
is deemed to be obligated to restore pursuant to the penultimate sentences of
Regulations Sections 1.704-2(g)(1) and 1.704-2(i)(5); and
(ii) Debit to such Capital Account the items described in
Sections 1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5) and
1.704-1(b)(2)(ii)(d)(6) of the Regulations.
The foregoing definition of Adjusted Capital Account Deficit is intended to
comply with the provisions of Section 1.704-1(b)(2)(ii)(d) of the Regulations
and shall be interpreted consistently therewith.
1.02 Affiliate. When used with reference to a specified individual,
trust, partnership, corporation, joint venture, or other entity or association
("Person"), and the heirs, executors, administrators, legal representatives,
successors and assigns of such Person, (a) any Person who, directly or
indirectly, through one or more intermediaries, controls or is controlled by or
is under common control with the specified Person, (b) any Person who 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, or (c) any Person who, directly or indirectly, is the
beneficial owner of ten percent (10%) or more of any class of equity securities
of, or otherwise has a substantial beneficial interest in, the specified Person
or of which the specified Person is directly or indirectly the owner of ten
percent (10%) or more of any class of equity securities or in which the
specified Person has a substantial beneficial interest.
1.03 Agreement. This Agreement of Limited Partnership as originally
executed and as amended from time to time, as the context requires. Words such
as "herein," "hereinafter," "hereof,"
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"hereto," "hereby" and "hereunder," when used with reference to this Agreement,
refer to this Agreement as a whole, unless the context otherwise requires.
1.04 Available Cash. All cash funds of the Partnership on hand from
time to time (other than cash funds obtained as contributions to the capital of
the Partnership by the Partners and cash funds obtained from loans to the
Partnership) after (i) payment of all operating and administrative expenses of
the Partnership as of such time, (ii) provision for payment of all outstanding
and unpaid current obligations of the Partnership as of such time (including all
amounts of any principal or interest payable with respect to any loans from
Partners), and (iii) provision for a working capital reserve as determined by
the General Partners. Available Cash shall not include or reflect any proceeds
received or expenses incurred in connection with a Capital Transaction.
1.05 Bankrupt and Bankruptcy. As used in this Agreement, the term
"Bankruptcy" with respect to a Partner shall refer to the appointment of a
receiver, conservator, rehabilitator or similar officer for a Partner, or the
taking of possession of, or assumption of control over, all or any substantial
part of property of any Partner by the United States government or any agency
thereof, or the filing of a petition in bankruptcy by or against any of them, or
the commencement of any proceeding by or against any of them under any present
or future Federal Bankruptcy Act or under any present or future state statute
relative to insolvency or other relief for debtors (or similar law analogous in
purpose or effect) for the relief or reorganization of any of them or for the
composition, extension, arrangement or readjustment of any proceeding
supplementary to any execution relating to any judgment against any of them
unless, within sixty (60) days after the happening (without the consent of the
General Partners) of any such event, any such proceeding, appointment, petition,
attachment or warrant shall have been stayed, vacated, dismissed or bonded (or
if within sixty (60) days after the expiration of any such stay, such
proceeding, appointment, petition, attachment or warrant shall have been
vacated, dismissed or bonded).
1.06 Capital Accounts. Throughout the full term of the Partnership,
each Partner shall have a separate Capital Account determined and maintained in
accordance with the provisions of Regulations Section 1.704-1(b)(2)(iv)
promulgated under Code Section 704(b).
1.07 Capital Contributions. The Initial Capital and additional
amounts contributed by the Partners to the capital of the Partnership, as
described in Article III hereof.
1.08 Capital Transaction. As used in this Agreement, the term
"Capital Transaction" shall mean an "Interim Capital Transaction" or a
"Terminating Capital Transaction." An Interim Capital Transaction shall mean:
(i) a transaction pursuant to which the Partnership borrows funds (including a
refinancing); (ii) a sale; (iii) a condemnation; (iv) an exchange; (v) a
disposition of a portion (which is less than substantially all) of the assets of
the Partnership; or (vi) an insurance recovery or any other transaction which,
in accordance with generally accepted accounting principles, is considered
capital in nature, other than a Terminating Capital Transaction. A Terminating
Capital Transaction shall mean a sale, condemnation, exchange or other
disposition, whether by foreclosure, abandonment or otherwise, of all, or
substantially all, of the then remaining assets of the Partnership or a
transaction that will result in a dissolution of the Partnership.
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1.09 Certificate. The Certificate of Limited Partnership with
respect to the Partnership which shall be executed simultaneous herewith and
filed for record with the Secretary of State of the State of Florida by the
General Partners and which shall be amended in the manner and as required by the
Law.
1.10 Code. The Internal Revenue Code of 1986, as amended from time
to time.
1.11 Distribution. Distribution shall mean a distribution by the
Partnership to the Partners of cash or property from any source (unless a
specific source is indicated in this Agreement).
1.12 Fiscal Year (or Partnership Accounting Year)Fiscal Year (or
Partnership Accounting Year). The calendar year, unless otherwise determined by
the General Partners.
1.13 Initial Capital. The net capital credited to each Partner's
Capital Account as of the date of the Agreement pursuant to Section 3.01 hereof.
1.14 Law. The Florida Revised Uniform Limited Partnership Act
(1986), Sections 620.101-620.180, Florida Statutes, as amended.
1.15 Limited Partners. BDC, Solomon, Graziotto and any other
persons who may become limited partners of the Partnership in the future.
1.16 Net Proceeds of a Capital Transaction. The proceeds received
by the Partnership in connection with an Interim or Terminating Capital
Transaction after payment of all costs and expenses incurred by the Partnership
in connection with such Capital Transaction, including, without limitation,
brokers' commissions, loan fees, loan payments, other closing costs and, if the
Capital Transaction is a financing or refinancing, after the payment of any
Partnership indebtedness intended to be repaid out of such financing or
refinancing, and further reduced by provision for a working capital reserve as
determined by the General Partners.
1.17 Partners. The General Partners and the Limited Partners, and
reference to a "Partner" shall be to any of the Partners.
1.18 Partnership. Fairways at Grand Harbor, Ltd., a Florida limited
partnership.
1.19 Partnership Accountants. Such certified public accountants as
may be selected, from time to time, by the General Partners.
1.20 Partnership Interest. The entire ownership interest of a
Partner in the Partnership at any particular time, including the right of such
Partner to any and all distributions, allocations and other benefits to which
such Partner may be entitled as provided in this Agreement and the Law together
with the obligations of such Partner to comply with all of the terms and
provisions of this Agreement and the Law, and further including the Capital
Account of such Partner.
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1.21 Partnership Percentages. The percentage interests of the
Partners in the Partnership, which, as of the date hereof, are as follows:
(a) Fairways - .5%
(b) BVP - .5%
(c) BDC - 44.5%
(d) Solomon - 34.75%
(e) Graziotto - 19.75%
1.22 Person. Any individual, trust, partnership, corporation, joint
venture, or other entity or association, and the heirs, executors,
administrators, legal representatives, successors and assigns of such Person.
1.23 Profits and Losses. For each Fiscal Year or other period, an
amount equal to the Partnership's taxable income or loss for such year or period
(including gain or loss resulting from a Capital Transaction), determined by the
Partnership Accountants in accordance with Code Section 703(a) (for this
purpose, all items of income, gain, loss or deduction required to be stated
separately pursuant to Code Section 703(a)(1) shall be included in taxable
income or loss).
1.24 Regulations. Regulations shall mean regulations promulgated by
the United States Treasury Department interpreting the Code.
1.25 Required Vote. Required Vote shall mean the affirmative vote
of Limited Partners having, in the aggregate, at least seventy percent (70%) of
the Partnership Percentages of all of the Limited Partners.
1.26 Transfer. The sale, assignment, hypothecation, mortgage,
pledge or other voluntary or involuntary encumbrance or disposition of a
Partnership Interest (or, as used in Section 8.01 hereof, control of a General
Partner), whether by operation of law or otherwise, or whether in whole or in
part.
ARTICLE II
FORMATION, NAME, BUSINESS, TERM
2.01 Formation. The Partners have formed the Partnership as a
limited partnership pursuant and subject to the Law for the limited purposes and
scope set forth herein by filing the Certificate, and the Partnership shall be
continued hereby, and the rights and liabilities of the Partners shall be as
provided in the Law, except as herein otherwise expressly provided. The General
Partners and Limited Partners shall execute any and all certificates or other
documents and the General Partners shall take whatever action is required in
order for the Partnership to continue to conduct business as a Limited
Partnership in the State of Florida.
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2.02 Name. The business of the Partnership shall be conducted under
the name "Fairways at Grand Harbor, Ltd." The Partnership may conduct business
under such other name or fictitious name as the General Partners may designate.
2.03 Principal Place of Business. The principal place of business
of the Partnership shall be at such location in or outside the State of Florida
as hereinafter may be determined by the General Partners.
2.04 Business of the Partnership. The purpose and scope of the
Partnership is to: (i) acquire the Property pursuant to the Purchase Agreement,
and to execute any and all documents necessary or appropriate in connection
therewith, including but not limited to notes and mortgages; (ii) to own,
manage, and develop the Property for profit in such manner as the Partners shall
hereafter determine; and (iii) engage in all manner of transactions and
activities incidental to the foregoing or otherwise allowed under the Law. The
Partnership shall not engage in any other business or activity, except as
otherwise expressly and specifically provided in this Agreement or as the
General Partners shall otherwise agree in writing. Except as expressly provided
to the contrary in this Agreement, nothing herein shall be deemed to restrict in
any way the freedom of a Partner to conduct any other business or activity
whatsoever without any accountability to the Partnership or the other Partners.
2.05 Term. The term of the Partnership as a limited partnership
shall commence with the filing of the Certificate with the Secretary of State of
the State of Florida, and shall continue in full force and effect until
terminated in accordance with Article X of this Agreement or as otherwise
provided by the Law.
2.06 Title. Legal title to the Partnership's property shall be held
in the name of the Partnership or in such other manner as the General Partners
shall determine.
2.07 Agent for Service. Raymond E. Graziotto is hereby designated
as agent for service of the Partnership, or such other Person as the General
Partners may, from time to time, designate.
2.08 Designated Person. For purposes of facilitating the
performance of the terms and provisions of this Agreement and the operation of
the Partnership, each General Partner designates the person(s) set forth below
opposite such General Partner's name ("Designated Person") as such General
Partner's authorized representative and attorney-in-fact to take all actions,
make all decisions and execute and deliver all documents on its behalf which
such General Partner, in its capacity as General Partner, is permitted or
required to take, make or execute and deliver pursuant to this Agreement. Either
General Partner may change its Designated Person by delivering to the other
General Partners and to the Partnership, written notice thereof, which notice
shall be by written certification of the President, if the General Partner is a
corporation, or shall be signed by all general partners if the General Partner
is a partnership. The foregoing is intended to estop any General Partner from
denying the authority of its Designated Person to act on its behalf with respect
to Partnership matters and shall not be construed to preclude other duly
authorized persons from acting on any General Partner's behalf. The Designated
Persons, as of the date hereof, are as follows:
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Designated Person
-----------------
Fairways J.C. Solomon II or Raymond E. Graziotto (only
one required)
BVP John E. Abdo or Alan B. Levan (only one required)
2.09 Competition. Nothing herein shall be deemed to restrict in any
way the freedom of any Partner or their Affiliates to conduct any other business
or activity whatsoever without accountability to the Partnership or the other
Partners, even if such business or activity competes with the Business of the
Partnership.
ARTICLE III
CAPITAL CONTRIBUTIONS; LOANS
3.01 Capital Contributions.
(a) The General Partners shall contribute, by assignment,
the Purchase Agreement, in exchange for which the General Partners shall receive
a credit to their Capital Account of $5.00 each.
(b) The Limited Partners shall contribute to the capital
of the Partnership the following amounts simultaneous with the execution hereof
("Initial Capital"):
(i) BDC - $ 445.00
(ii) Solomon - $ 347.50
(iii) Graziotto - $ 197.50
(c) Capital contributions in excess of the Initial
Capital shall be required of the Limited Partners as may be determined by the
General Partners.
3.02 Partner Loans.
(a) The Partners anticipate that the Partnership shall
obtain third-party loans in addition to and/or in refinancing of the Capital
Contributions and Partner Loans, at such times and in such amounts as the
General Partners may hereafter determine, with interest payable at the then
prevailing rates, from commercial banks, savings and loan associations or other
lending institutions or persons. Unless otherwise provided in this Agreement, in
the event that at any time or from time to time additional funds in excess of
the Capital Contributions or prior "Partner Loans" (as hereinafter defined) of
the Partners are required by the Partnership for or in respect of its business
or any of its obligations, expenses, costs, liabilities or expenditures, then
the General Partners, acting for and on behalf of and in the name of the
Partnership, shall endeavor to cause the Partnership to borrow such required
additional funds, with interest payable at the then prevailing rates, from
commercial banks, savings and loan associations or other lending institutions or
persons. In the
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event that the Partnership does not borrow said required additional funds from a
third party lender, then the Limited Partners shall be required to loan the
amount of the additional funds then required based upon each Partner's relative
Partnership Percentage ("Partner Loan"). The Partner Loan shall be evidenced by
a negotiable promissory note of the Partnership and shall bear interest at the
rate of twelve percent (12%) per annum. In no event shall any such loan bear
interest at a rate in excess of the highest lawful nonusurious rate permitted by
the law applicable to the loan. Any interest paid pursuant to this subsection
shall be deemed an expense of the Partnership, and shall be treated as a payment
described in Code Section 707(a). No Partner Loan made by any Limited Partner
shall have priority as to payment or security over any Partner Loan made by any
other Limited Partner.
(b) In the event that a Partner fails to make all or any
portion of that Partner's share of the Partner Loan within seven (7) days after
written notice by the General Partners that such Partner Loan is due, then such
Partner shall be in "Default" of this Agreement ("Defaulting Partner"). In the
event of such Default, the other Partners may elect to advance as a loan to the
Partnership an amount equal to the Partner Loan that the Defaulting Partner
failed to make ("Default Loan"). The Partners electing to make Default Loans
hereunder are hereinafter referred to as the "Lending Partners." The Lending
Partners shall determine amongst themselves the proportions in which a Default
Loan shall be made, or, if they fail to agree, then pro rata based upon their
relative Partnership Percentages. In the event the Lending Partners have
advanced such monies as a Default Loan to the Partnership, then and in such
event the following shall be applicable: (i) such Default Loan shall be a demand
loan which shall bear interest at eighteen percent (18%) per annum ("Default
Rate"); (ii) all monies paid as repayment of such Default Loan shall first be
applied to the costs and expenses of the Lending Partners, including attorneys'
fees and costs with respect to such Default Loan, secondly towards accrued and
unpaid interest, and finally towards the outstanding principal balance; (iii)
interest on the Default Loan shall be due and payable monthly and all such
interest shall be deemed an expense of the Partnership, which monthly interest
payments the Partners hereby agree shall be paid by the Partnership and such
monthly obligation shall be set forth in all budgets and projections of the
Partnership; and (iv) the Default Loan may be called in whole or in part
anytime.
(c) In the event the Lending Partners shall make the
Default Loan and in the further event that the Defaulting Partner shall have
failed to fully cure the Default hereunder by paying the Default Loan, together
with interest thereon at the Default Rate from the date such Default Loan was
due until the date of the election by the Lending Partners to take advantage of
the provisions of this Section 3.02(c), the Lending Partners shall have the
right (which shall only be elected in writing) to convert all or any portion of
the Default Loan (including interest which has accrued thereon) to the capital
of the Partnership, whereupon the Partnership Interests of the Lending Partners
shall be proportionately and permanently increased and the Partnership Interest
of the Defaulting Partner shall be proportionately and permanently reduced in
the manner set forth in Section 3.02(d) below. Notwithstanding anything
contained herein to the contrary, the Lending Partners shall give the Defaulting
Partner fifteen (15) days written notice of their intentions to invoke the
provisions of Section 3.02(d) below, during which time the Defaulting Partner
shall have the right to satisfy in full the then outstanding principal balance,
together with any accrued but unpaid interest, of the Default Loan owing to the
Lending Partners.
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(d) In the event that the Lending Partners shall
determine to convert all or any portion of the Default Loan to the capital of
the Partnership pursuant to Section 3.02(c) above, the Partnership Interests of
the Partners shall be redetermined pursuant hereto so that each Partner's
redetermined Partnership Percentage shall be equal to the product of the total
Partnership Percentages of all of the Limited Partners (the same being 99%) and
a fraction, the numerator of which shall be equal to any Capital Contributions
and Partner Loans of such Partner, plus 200% of any Default Loans theretofore
made by such Partner, and the denominator of which is equal to the Capital
Contributions of all Partners, the aggregate Partner Loans theretofore made by
all Partners, and 200% of any Default Loans theretofore made by all Partners.
For purposes of the forgoing provision, the Partnership Percentages of the
General Partners shall not be redetermined. To illustrate the foregoing, assume
that the Defaulting Partner, has a Partnership Percentage of 15% and fails to
make a Partner Loan of $150,000 out of a total of $990,000 required to be made
by all Limited Partners, and the Lending Partners loan such amount to the
Partnership and elect to convert such loan to the capital of the Partnership.
Assume further that the aggregate amount of Capital Contributions and Partner
Loans theretofore made by all of the Partners (excluding the General Partners)
is $2,475,000, and the portion theretofore made by the Defaulting Partner is
$375,000. The Lending Partners make their share of a Partner Loan of $840,000,
and the Defaulting Partner fails to loan $150,000. The Lending Partners, in the
aggregate, shall have a redetermined Partnership Percentage of 88.73%, based
upon the product of 99% and a fraction having a numerator of $3,240,000 (the
initial aggregate contributions and Partner Loans of the Lending Partners of
$2,100,000, plus their share of the Partner Loans of $840,000, plus 200% of
$150,000), and a denominator of $3,615,000 (the aggregate contributions and
Partner Loans of all of the Partners of $2,475,000, plus the Lending Partners's
share of the Partner Loans of $840,000, plus 200% of $150,000). The redetermined
Partnership Percentage of the Defaulting Partner shall be 10.37%.
(e) The remedies heretofore expressly set forth are in
addition to and not in lieu of any and all other legal and equitable remedies
that may be available to the Partnership and/or the Lending Partners in the
event of a Default by the Defaulting Partner. With respect to the foregoing
remedies, the Lending Partners and the Partnership shall have the right to
pursue same on a cumulative basis, no action seeking any single remedy
constituting an election or in any other way precluding the Lending Partners or
the Partnership from simultaneously or thereafter pursuing the other remedies.
3.03 Personal Guaranties; SEPARATE OBLIGATIONS.
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(A) THE PARTNERS ACKNOWLEDGE AND AGREE THAT THE
PARTNERSHIP WILL REQUIRE THIRD-PARTY FINANCING TO CONSTRUCT THE IMPROVEMENTS
UPON THE PROPERTY ("FINANCING"), AND THE GENERAL PARTNERS HAVE NEGOTIATED WITH
BANKATLANTIC, A FEDERAL SAVINGS BANK, an Affiliate of BVP and BDC, for such
Financing. It is currently contemplated that Solomon and Graziotto shall
personally guaranty the repayment of the Financing ("Guaranty"). BDC hereby
agrees that in the event Solomon, Graziotto or any of their affiliates that may
join in the Guaranty (individually the "Specified Party" or collectively the
"Specified Parties") incur any costs, expenses, damages, liabilities, fines,
settlements, judgments, penalties, attorneys' fees and the like in connection
with any investigation, defense, prosecution, settlement or appeal of any
threatened suit, action or proceeding in which the Specified Party was or is a
party or is threatened to be made a party by reason of any claims whatsoever
arising out of or relating to the Guaranty ("Specified Losses"), that BDC agrees
to promptly pay and reimburse the Specified Parties for an amount ("Cap Amount")
equal to the lesser of (i) forty-five percent (45%) of the Specified Losses
actually paid by the Specified Parties, or (ii) the aggregate sum of Four
Million Five Hundred Thousand Dollars ($4,500,000). In the event that the
Specified Parties shall be required to make a payment to the Lender pursuant to
the Guaranty and the Specified Parties are prepared to make such payment to the
Lender, then the Specified Parties shall notify BDC of such claim and a date
within ten (10) days after such notice as to when the Specified Parties shall be
making the payment to the Lender, whereupon simultaneous with the Specified
Party making payment directly to the Lender pursuant to such Guaranty, BDC will
pay to the Specified Parties forty-five percent (45%) of the amount then being
paid to the Lender, provided that such payment, together with any other portion
of the monies payable by BDC pursuant to this Section 3.03, shall not exceed the
Cap Amount. In the event that the Specified Parties incur any other Specified
Losses other than as set forth in the immediately preceding sentence, then BDC
shall pay to the Specified Parties on a quarterly basis an amount equal to
forty-five percent (45%) of any such Specified Losses (other than payments made
directly to the Lender as provided in the preceding sentence) which have been
incurred by the Specified Parties during the preceding quarter, provided that
the aggregate amount of such payments, together with any other portion of the
monies paid by BDC pursuant to this Section 3.03, will not exceed the Cap
Amount. BDC hereby covenants and agrees that so long as the Financing shall
remain outstanding, BDC will, at all times, maintain a "Net Worth" (as defined
under generally accepted accounting principals) of at least Five Million Six
Hundred Twenty-Five Thousand Dollars ($5,625,000). The Partnership shall and
does hereby agree, to the fullest extent permitted by law and to the extent of
the Partnership's assets, to defend, indemnify and hold harmless THE LIMITED
PARTNERS, AND ANY OTHER PERSONS WHO MAY HEREAFTER BECOME LIABLE FOR THE
FINANCING PURSUANT TO THE GUARANTY, FROM AND AGAINST ANY AND ALL LIABILITY,
LOSS, COST, EXPENSE OR DAMAGE INCURRED OR SUSTAINED BY REASON OF THE GUARANTY OR
THE FINANCING. The Limited Partners hereby agree that in the event that any
Partner shall be liable pursuant to the Guaranty after all indemnification
payments have been made by the Partnership, that each of the Limited Partners
shall indemnify and hold harmless the remaining Limited Partners such that the
ultimate financial burden under the Guaranty shall be borne by the Limited
Partners proportionate to their respective Partnership Percentages (provided
that in no event shall the aggregate liability of BDC exceed the Cap Amount set
forth above). The provisions of this Section 3.03(a) shall survive the
termination of this Agreement.
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(b) The parties specifically acknowledge and agree that
the Limited Partners are acting in their capacity as Partners in this
Partnership pursuant to the express terms and provisions set forth in this
Agreement. Notwithstanding anything contained herein to the contrary, the
parties hereby acknowledge and agree that the fact that BVP or BDC are involved
in this transaction as Partners, shall not in any way affect their right and/or
the right of any Affiliate of BVP or BDC TO DEAL WITH THE PARTNERSHIP IN THEIR
SOLE AND ABSOLUTE DISCRETION IN CONNECTION WITH ANY LOANS OR OTHER TRANSACTIONS
WHICH ARE ENTERED INTO BY THE PARTNERSHIP AND ANY AFFILIATE OF BVP OR BDC,
INCLUDING, BUT NOT LIMITED TO, THE FINANCING WITH BANKATLANTIC, A FEDERAL
SAVINGS BANK ("OTHER TRANSACTIONS"). IT IS SPECIFICALLY ACKNOWLEDGED AND AGREED
THAT IN CONNECTION WITH THE OTHER TRANSACTIONS, (I) THE FACT THAT BVP OR BDC ARE
INVOLVED IN THIS PARTNERSHIP SHALL NOT IN ANY WAY AFFECT THE OBLIGATIONS OF THE
PARTNERSHIP TO ANY AFFILIATE OF BVP OR BDC PURSUANT TO THE OTHER TRANSACTIONS,
NOR DOES THE PARTNERSHIP EXPECT TO RECEIVE ANY CONCESSIONS AS THE RESULT
THEREOF; (II) THE ACTS OF ANY AFFILIATE OF BVP OR BDC PURSUANT TO THE OTHER
TRANSACTIONS ARE INDEPENDENT AND SEPARATE FROM ANY OBLIGATION OF BVP OR BDC
PURSUANT TO THE TERMS OF THIS AGREEMENT; AND THE PARTNERSHIP DOES HEREBY
RELEASE, REMISE, ACQUIT AND FOREVER DISCHARGE ANY AFFILIATE OF BVP OR BDC IN
CONNECTION WITH ANY CLAIMS THAT IT IS A JOINT VENTURER WITH THE PARTNERSHIP IN
CONNECTION WITH OTHER TRANSACTIONS AND THAT THE ONLY JOINT VENTURE WILL BE WITH
RESPECT TO THE INTERESTS OF BVP AND THE LIMITED PARTNER PURSUANT TO THE EXPRESS
TERMS AND PROVISIONS OF THIS AGREEMENT. ADDITIONALLY, THE PARTNERSHIP DOES
HEREBY REMISE, RELEASE AND DISCHARGE ANY PERMITTED TRANSFEREE OF BVP OR BDC IN
CONNECTION WITH ANY CLAIM FOR LENDER LIABILITY OR CLAIMS THAT THE PARTNERSHIP
WOULD BE ENTITLED TO CONCESSIONS, EXTENSIONS OR OTHERWISE BE ENTITLED TO RIGHTS
WHICH ARE NOT EXPRESSLY PROVIDED FOR AS BEING THE OBLIGATION OF ANY AFFILIATE OF
BVP OR BDC PURSUANT TO THE EXPRESS TERMS OF SUCH OTHER TRANSACTIONS. THE
PARTNERSHIP ACKNOWLEDGES AND AGREES THAT ANY AFFILIATE OF BVP OR BDC SHALL HAVE
THE RIGHT, IN ITS SOLE AND ABSOLUTE DISCRETION, TO ENFORCE THE TERMS AND
PROVISIONS OF ALL SUCH OTHER TRANSACTIONS ACTING IN ITS SOLE AND BEST INTEREST
AS IT DETERMINES, IN ITS SOLE AND ABSOLUTE DISCRETION, WITHOUT REGARD TO THE
FACT THAT BVP OR BDC ARE PARTNERS IN THE PARTNERSHIP.
3.04 Other Matters Relating to Capital.
(a) Interest earned on Partnership funds shall inure
solely to the benefit of the Partnership, and, except as specifically provided
herein, no interest shall be paid upon any contributions or advances to the
capital of the Partnership or upon any undistributed or reinvested income or
profits of the Partnership.
(b) Loans by a Partner to the Partnership shall not be
considered contributions to the capital of the Partnership and shall not
increase the Capital Account of the lending Partner.
(c) Except as specifically provided herein, no Partner
shall be entitled to withdraw or to a return of any part of its Capital
Contribution or to receive property or assets in return thereof, and the General
Partners shall not be liable to the Limited Partners for a return of their
Capital Contributions, except as provided in this Agreement. To the extent any
monies which any Partner is
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entitled to receive pursuant to Article IV would constitute a return of capital,
each of the Partners consent to the withdrawal of such capital.
(d) No Partner shall be entitled to priority over any
other Partner, either with respect to a return of its Capital Contribution or to
allocations of taxable income, gains, losses or credits, or to distributions,
except as provided in this Agreement.
ARTICLE IV
ALLOCATIONS AND DISTRIBUTIONS
4.01 Allocations from Operations and Capital Transactions.
(a) The Profits of the Partnership from operations, and
any income (including gain) resulting from any Interim or Terminating Capital
Transactions as calculated for federal income tax purposes and reported by the
Partnership on its U.S. Partnership Return of Income for each fiscal year (or
portion thereof) during the term of this Agreement, shall be allocated to the
Partners as follows:
(i) First, to those Partners in proportion to
and in an amount equal to the aggregate amount of Losses previously allocated to
the Partners pursuant to Section 4.01(b)(ii) hereof; and
(ii) Second, to the Partners pro rata in
accordance with their respective Partnership Percentages.
(b) The Losses of the Partnership from operations, and
any losses resulting from any Interim or Terminating Capital Transactions as
calculated for federal income tax purposes and reported by the Partnership on
its U.S. Partnership Return of Income for each fiscal year (or portion thereof)
during the term of this Agreement, shall be allocated to the Partners as
follows:
(i) First, to the Partners in proportion to and
in an amount equal to the aggregate amount of Profits previously allocated to
the Partners pursuant to Section 4.01(a)(ii) hereof; and
(ii) Second, to the Partners pro rata in
accordance with their respective Partnership Percentages.
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4.02 Special Allocations. The following special allocations shall
be made in the following order:
(a) Qualified Income Offset. In the event any Limited
Partner unexpectedly receives any adjustments, allocations, or distributions
described in Section 1.704-1(b)(2)(ii)(d)(4), Section 1.704-1(b)(2)(ii)(d)(5) or
Section 1.704-1(b)(2)(ii)(d)(6) of the Regulations, items of Partnership income
and gain shall be specially allocated to each such Limited 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 4.02(a) shall be made only
if and to the extent that such Limited Partner would have an Adjusted Capital
Account Deficit after all other allocations provided for in this Article IV have
been tentatively made as if this Section 4.02(a) were not in the Agreement.
(b) Gross Income Allocation. In the event any Limited
Partner has a deficit Capital Account at the end of any Fiscal Year which is in
excess of the sum of (i) the amount such Limited Partner is obligated to restore
pursuant to any provision of this Agreement, and (ii) the amount such Limited
Partner is deemed to be obligated to restore pursuant to the penultimate
sentences of Regulations Sections 1.704-2(g)(1) and 1.704-2(i)(5), each such
Limited 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 4.02(b) shall be made only if and to the
extent that such Limited Partner would have a deficit Capital Account in excess
of such sum after all other allocations provided for in this Article IV have
been made as if Section 4.02(a) and this Section 4.02(b) were not in the
Agreement.
(c) Curative Allocations. The allocations set forth in
this Section 4.02 (the "Regulatory Allocations") are intended to comply with
certain requirements of the Regulations. It is the intent of the Partners that,
to the extent possible, all Regulatory Allocations shall be offset either with
other Regulatory Allocations or with special allocations of other items of
Partnership income, gain, loss or deduction pursuant to this Section 4.02(c).
Therefore, notwithstanding any other provision of this Article IV (other than
the Regulatory Allocations), the General Partners shall make such offsetting
special allocations of Partnership income, gain, loss or deduction in whatever
manner they determine appropriate so that, after such offsetting allocations are
made, each Partner's Capital Account balance is, to the extent possible, equal
to the Capital Account balance such Partner would have had if the Regulatory
Allocations were not part of the Agreement and all Partnership items were
allocated pursuant to Section 4.01.
4.03 Distribution of Available Cash and Net Proceeds of an Interim
Capital Transaction. Periodically, but not less frequently than annually, the
Available Cash and Net Proceeds of an Interim Capital Transaction, if any, shall
be distributed to the Partners pro rata in accordance with their respective
Partnership Percentages.
4.04 Distribution of Net Proceeds from Terminating Capital
Transaction. The net proceeds of a Terminating Capital Transaction shall be
distributed in the manner set forth in Sections 10.03 and 10.04 hereof.
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4.05 Distribution in Cash Only. No Partner shall have the right to
demand or receive property other than cash from the Partnership for any reason
whatsoever and no Partner shall have the right to sue for partition of the
Partnership or for the Partnership's assets.
ARTICLE V
MANAGEMENT OF PARTNERSHIP
5.01 Rights, Powers and Duties of the General Partners. The overall
management and control of the business and affairs of the Partnership shall be
vested solely in the General Partners. All of the Partnership's acts and
decisions shall be authorized by the written consent of both General Partners.
The General Partners shall conduct the day-to-day operations of the Partnership.
Without limiting the foregoing, the General Partners shall have the authority:
(a) To keep all books of accounts and other records
required by the Partnership, keep vouchers, statements, receipted bills,
invoices and all other records, covering all collections, disbursements and
other data in connection with the business of the Partnership;
(b) To hire, retain or employ, fire and coordinate the
services of all employees, supervisors, attorneys, accountants, consultants,
independent contractors and other persons necessary or appropriate to carry out
the business of the Partnership;
(c) To the extent that funds of the Partnership are
available therefor, to pay all debts and other obligations of the Partnership
when due;
(d) To grant, assign, transfer, lease or let any of the
Partnership property, whether real or personal, in furtherance of the business
of the Partnership and, in connection therewith, to execute in the Partnership's
name, any and all deeds, documents, bills of sale, and other papers pertaining
to the business of the Partnership;
(e) To borrow money from any lender, including any
Partner hereunder, extend or renew any existing indebtedness and mortgage or
pledge any property in the Partnership upon such terms and conditions as the
General Partners deems appropriate;
(f) To sell at public or private sale, contract to sell,
convey, exchange, transfer and otherwise deal with the Partnership property,
real or personal, and any reinvestment thereof from time to time for such price
and upon such terms as the General Partners deems appropriate;
(g) To compromise, contest, prosecute or abandon claims
in favor of or against the Partnership and to agree to any recision or
modification of any contract or agreement; and
(h) To do any and all other things which are necessary,
incidental or required in giving effect to all of the foregoing duties and
responsibilities.
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5.02 Liability and Indemnification. The General Partners, their
officers, directors, shareholders, employees or affiliates, shall not be liable
to the Partnership or any Partner for any loss or liability incurred in
connection with any act performed or omitted in accordance with the terms of
this Agreement, except for any loss or liability incurred in connection with
fraud, willful and wanton misconduct or gross negligence of the General
Partners. The Partnership shall and does hereby agree, to the fullest extent
permitted by law and to the extent of the Partnership's assets, to defend,
indemnify and hold harmless the General Partners, their officers, directors,
shareholders, employees and affiliates, from and against any and all liability,
loss, cost, expense or damage incurred or sustained by reason of any act or
omission in the conduct of the business of the Partnership, regardless of
whether acting pursuant to their discretionary or explicit authority hereunder;
provided, however, the Partnership shall not indemnify the General Partners,
their officers, directors, shareholders, employees or affiliates or hold it or
them harmless with respect to any of the foregoing incurred in connection with
the fraud, willful and wanton misconduct or gross negligence of the General
Partners, their officers, directors, shareholders, employees or affiliates. The
provisions of this Section 5.02 shall survive the termination of this Agreement.
5.03 Exercise of Rights and Powers.
(a) The General Partners shall not be liable personally
for the return of the Capital Contributions of the Limited Partners or any
portions thereof, it being expressly understood that any such returns shall be
made solely from the assets of the Partnership.
(b) The General Partners may delegate all or any of their
powers, rights and obligations hereunder, and may appoint, employ, contract or
otherwise deal with any person, including any affiliate, for the transaction of
the business of the Partnership, which person or affiliate may, under the
supervision of the General Partners, perform any acts or services for the
Partnership as the General Partners may approve and may receive such
compensation from the Partnership on account of such services as the General
Partners deem proper.
ARTICLE VI
MATTERS REGARDING LIMITED PARTNERS
6.01 Liability of Limited Partners. Except as provided in Article
III hereof, the Limited Partners shall not be bound by, or personally liable
for, obligations or liabilities of the Partnership beyond the amount of their
Initial Capital and any additional Capital Contributions to the Partnership;
provided, however, the Limited Partners are obligated to return a distribution
from the Partnership to the extent provided by the Law.
6.02 Management. The Limited Partners shall not participate in the
operation or management of the business of the Partnership, or transact any
business for or in the name of the Partnership, and the Limited Partners shall
not have any right or power to sign for or bind the Partnership in any manner.
Nothing contained herein shall limit the right of a Limited Partner, in his
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capacity as a shareholder of the General Partners, from participating in
management decisions of the General Partners affecting the Partnership.
6.03 Power of Attorney.
(a) The Limited Partners hereby make, constitute and
appoint the General Partners, and each Person who shall hereafter become a
General Partner, with full power of substitution, their true and lawful
attorney-in-fact, and in the name, place and stead of each such Limited Partner,
with the power from time to time to execute, acknowledge, make, swear to,
verify, deliver, record, publish and/or file:
(i) Any and all amendments to the Certificate to
be filed in accordance with the Law and the applicable laws of any other state
or jurisdiction in which said attorney deems such filing to be necessary to give
effect to the provisions of this Agreement and to preserve the character of the
Partnership as a limited partnership; and
(ii) All such other instruments as said attorney
may deem necessary or desirable to carry out the provisions of this Agreement in
accordance with its terms; provided, however, that this Special Power of
Attorney shall not empower such attorney to execute any instrument or other
document which affects the substantive rights of any Limited Partner, increases
the liabilities of any Limited Partner beyond the liability contemplated by this
Agreement or which reduces the pro rata share of any Limited Partner in Profits,
Losses, allocations and Distributions to be received by such Limited Partner
under this Agreement without the prior written consent of such Limited Partner.
Said attorney shall have full power and authority to do and perform each and
every act and thing whatsoever requisite and necessary in and about the
foregoing as fully as the Limited Partners might or could do if personally
present and the Limited Partners hereby ratify and confirm all that said
attorney shall lawfully do or cause to be done by virtue hereof.
(b) The foregoing grant of authority is a Special Power
of Attorney coupled with an interest in favor of the General Partners and as
such shall be irrevocable.
6.04 Limitation of Certain Rights. The Limited Partners shall not
have the right or power to: (i) withdraw or reduce their Capital Contributions
to the Partnership except as a result of the dissolution of the Partnership or
as otherwise provided in this Agreement or by the Law; (ii) bring an action for
partition against the Partnership or with respect to any of its property; or
(iii) cause the termination or dissolution of the Partnership by court decree or
as may be permitted by the Law, such rights being specifically waived by the
Limited Partner.
ARTICLE VII
ADDITIONAL LIMITED PARTNERSHIP INTERESTS;
TRANSFERS OF PARTNERSHIP INTERESTS
7.01 General Prohibition. No Partner shall transfer any of such
Partner's Partnership Interest or such Partner's rights under this Agreement
other than pursuant the provisions of this
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Article VII, unless there is express written consent to the transfer by the
General Partners, which consent may be unreasonably withheld. Notwithstanding
the foregoing:
(a) Members of a General Partner's "Group" (as defined in
Section 8.02 hereof) shall have the right to transfer their Partnership
Interests by and among one another without the consent of the General Partners,
and
(b) A Limited Partner that is a member of a Group may
Transfer all or any portion of its Interest:
(i) In the case of an individual Limited
Partner, to such Limited Partner's spouse, natural or adoptive ancestors or
descendants, trusts for his or their exclusive benefit, or to an entity
controlled by the transferor Limited Partner if all of the equity interests in
such entity are owned by such Limited Partner's spouse, natural or adoptive
ancestors or descendants, or trusts for his or their exclusive benefit, or
(ii) In the case of a Limited Partner that is an
entity, to one or more other entities controlled by the transferor Limited
Partner; provided, however, that (y) any such Transfers shall not relieve the
transferor of any liability hereunder without the written consent of the General
Partners, and (z) each such transferee shall execute a joinder to this Agreement
and such other instruments as the General Partners shall reasonably require for
the admission of the transferee.
Notwithstanding the foregoing, no Transfer shall be permitted pursuant to the
foregoing subsections (a) or (b) if such Transfer would cause the Partnership to
terminate for federal income tax purposes pursuant to Code Section 708(b)(1)(B).
7.02 Additional Limited Partnership Interests. Except as set forth
in Section 7.01, no additional Limited Partner shall be admitted into the
Partnership without the express written consent of the General Partners, which
consent and vote may be unreasonably withheld. Any additional Limited Partner(s)
admitted into the Partnership shall be admitted upon such terms and conditions
as consented to by the General Partners.
7.03 Effect of a Transfer Not in Compliance with this Article. Any
purported Transfer of a Partnership Interest in violation of the provisions of
this Agreement shall be, as between the parties thereto and the Partnership,
null and void ab initio; provided, however, that any Transfer resulting from the
order of any court having jurisdiction with respect to the disposition of a
Partnership Interest or by operation of law shall be effective to vest in a
third party the rights of an Assignee. An Assignee, who does not become a
substitute Limited Partner, has no right to require any information or account
of the Partnership transactions or to inspect the Partnership books; such
Assignee is only entitled to receive the share of the profits or other
compensation by way of income, or the return of said Assignee's contribution to
which the assignor would otherwise be entitled. Furthermore, no such Assignee
shall be entitled to exercise any powers or give or withhold any consents or
approvals required or with respect to such Partnership Interest.
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ARTICLE VIII
TRANSFERS BY GENERAL PARTNERS AND AFFILIATES
8.01 General Prohibition. Except as otherwise provided herein,
neither General Partner shall Transfer its Partnership Interest without the
prior written consent of the other General Partner. In the event that BDC and
its Affiliates shall no longer own 51% of the issued and outstanding shares of
BVP without the prior written consent of Fairways, then as of such date BVP
shall be deemed to have violated the provisions of this Section 8.01. In the
event that Solomon, Graziotto and their Affiliates shall no longer own 51% of
the issued and outstanding shares of Fairways without the prior written consent
of BVP, then as of such date Fairways shall be deemed to have violated the
provisions of this Section 8.01. Any purported Transfer of a General Partner's
Partnership Interest in violation of the provisions of this Agreement shall be,
as between the parties thereto and the Partnership, null and void ab initio, and
as of the date of the purported Transfer the Partnership Interest of the
assigning General Partner shall be immediately and without any further action
converted to that of a Limited Partner, and the assigning General Partner shall
no longer have the right to exercise any of the rights of a General Partner as
set forth herein. Any Transfer resulting from the order of any court having
jurisdiction with respect to the disposition of a Partnership Interest or by
operation of law shall be effective to vest in a third party the rights of an
Assignee of a Limited Partner's Partnership Interest. An Assignee has no right
to require any information or account of the Partnership transactions or to
inspect the Partnership books; such Assignee is only entitled to receive the
share of the profits or other compensation by way of income, or the return of
said Assignee's contribution to which the assignor would otherwise be entitled.
Furthermore, no such Assignee shall be entitled to exercise any powers or give
or withhold any consents or approvals required or with respect to such
Partnership Interest.
8.02 Members of Group Bound by General Partners. For purposes of
this Article VIII, the Partnership Interests of BVP shall include the
Partnership Interests of BDC (sometimes hereinafter referred to as the "BVP
Group"), and the Partnership Interests of Fairways shall include the Partnership
Interests of Solomon and Graziotto (sometimes hereinafter referred to as the
"Fairways Group"), it being the intent and desire of the parties that in
exercising the rights and obligations set forth in this Article VIII that the
General and Limited Partnership Interests of each of the BVP Group and of the
Fairways Group shall be treated as a singular unit (sometimes referred to herein
as a "Group"). Except as the context may otherwise require, any references to a
General Partner shall refer to all members of such General Partner's Group. BDC
hereby appoints BVP, and Solomon and Graziotto hereby appoint Fairways, as their
respective attorneys-in-fact for all purposes of exercising any and all rights
and obligations under this Article VIII, and each shall be bound by the
determinations of their respective attorneys-in-fact. Each member of a General
Partner's Group shall be jointly and severally liable for the obligations of
that Group imposed under this Article VIII.
8.03 Blind Option.
(a) Either General Partner (hereinafter referred to as
"Initiating Partner") shall have the right to invoke a mandatory "Blind Option"
by giving written notice thereof ("Blind Option
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Notice") to the other, non-Initiating General Partner (hereinafter referred to
as "Electing Partner"). The Blind Option Notice shall contain: (a) an offer to
buy ("Offer to Buy") all, but not less than all, the (i) Partnership Interests,
and (ii) any and all loans made by the Electing Partner to the Partnership
("Partnership Loans") from the Electing Partner, which Offer to Buy shall set
forth a value of all of the Partnership's assets as more fully provided in
Section 8.03(d) hereof (referred to herein as the "Blind Option Price"); and (b)
an offer to sell ("Offer to Sell") all, but not less than all, the Initiating
Partner's Partnership Interest and Partnership Loans (collectively hereinafter
referred to as the "Interests") to the Electing Partner at the Blind Option
Price. For all purposes hereunder, the Offer to Sell shall include all of the
Interests owned by the Initiating Partner. The Blind Option Price may not be
conditioned in any manner or established as a formula. For purposes of this
Article, a Partner's Partnership Interest shall include the Partnership Interest
of any transferee of such Partner.
(b) Within sixty (60) days from the date on which the
Blind Option Notice is given, the Electing Partner shall elect either to accept
the Offer to Buy or to accept the Offer to Sell by giving written notice of such
election to the Initiating Partner ("Blind Option Election Notice"). The failure
of the Electing Partner to give the Blind Option Election Notice within said
sixty (60) day period shall be deemed an affirmative election by the Electing
Partner to accept the Offer to Buy, and a Blind Option Election Notice to that
effect shall be deemed given as of such sixtieth (60th) day.
(c) The Partner ultimately purchasing the Interests
pursuant to these provisions shall hereinafter be referred to as the "Blind
Option Purchaser," and the Partner ultimately selling its Interests pursuant to
these provisions shall hereinafter be referred to as the "Blind Option Seller."
The members of the group that is the Blind Option Purchaser shall be jointly and
severally liable to purchase the Interests of the Blind Option Seller, and the
Blind Option Seller may proceed against any one or more of the members of the
group that is the Blind Option Purchaser without any obligation to pursue other
members of the Blind Option Purchaser.
(d) The Blind Option Price to be paid by a Blind Option
Purchaser hereunder shall be an amount equal to that which the Blind Option
Seller would receive as a distribution pursuant to Section 10.03 hereof if the
Partnership's assets were sold at the value specified in the Blind Option
Notice, and the Partnership was terminated and liquidated as of the date of the
Blind Option Notice. The Blind Option Price shall be paid by cashier's check or
wire transfer at the Blind Option Closing.
(e) The closing ("Blind Option Closing") under this
Article shall be held on a date as agreed upon by the parties, but in no event
shall be held not earlier than the thirtieth (30th) day, following the date on
which the Blind Option Election Notice is given or deemed given, nor later than
the ninetieth (90th) day following the date of the Blind Option Notice. At the
Blind Option Closing, each member of the group that is the Blind Option Seller
shall: (a) represent and warrant in writing to the Blind Option Purchaser that
it is the sole owner of the Interests it is selling, that such Interests are
held free and clear of any and all pledges, claims, liens and rights of others
(other than the effect of this Agreement) and that it has the full power, right
and authority to consummate the sale of its Interests; and (b) assign and
deliver to the Blind Option Purchaser the Interests so sold, together with all
other documents necessary to transfer such Interests. In addition, at the Blind
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Option Closing, or as soon as practicable thereafter, the provisions of Section
8.05 shall be implemented with respect to the Blind Option Seller.
(f) In the event that a Blind Option Purchaser, through
no fault of the Blind Option Seller, breaches his obligation to purchase a Blind
Option Seller's Interests in the manner and within the time period provided in
Sections 8.03(d) and (e) hereof ("Blind Option Purchaser Default"), such Blind
Option Seller, in addition to any other rights and remedies which he may have at
law or in equity, may purchase all such Blind Option Purchaser's Interests at an
amount per share equal to seventy-five percent (75%) of the Blind Option Price,
which sale may be enforced by such Blind Option Seller in equity by a suit for
specific performance.
(g) During the period commencing on the date on which the
Blind Option Election Notice is given or deemed given and ending on the date of
the Blind Option Closing, the Blind Option Purchaser shall have the right to
exercise all rights of the General Partners hereunder, and the consent of the
Blind Option Seller shall not be required with respect to any actions. The
Partners hereby agree that the Blind Option Seller shall execute any and all
documents reasonably requested by counsel to the Partnership in order to
effectuate the foregoing.
8.04 Right of First Refusal.
(a) In the event that a General Partner desires to sell
all of its Interests, which for all purposes hereunder must include all of the
Interests owned by the members of the Group of such General Partner ("Offered
Interests") to any person or entity other than the Partnership or the remaining
General Partner ("Transferee"), such General Partner ("Offeror Partner") shall
first give written notice thereof to the Partnership and to the remaining
General Partner by certified or registered mail, return receipt requested
("Notice of Offer"). The Notice of Offer shall include: (i) a true copy of a
bona fide, signed, written offer by the Transferee to purchase the Offered
Interests, the purchase price offered to be paid for the Offered Interests
("Purchase Price") and the terms ("Purchase Terms") upon which such offer is
made, and the name and the residence address of the Transferee; and (ii) an
offer to sell all the Offered Interests at the Purchase Price and on the
Purchase Terms to the Partnership and, in the event the Partnership is unable or
does not desire to purchase the Offered Interests to the other General Partner
(hereinafter referred to collectively with all members of such General Partner's
Group as "Offeree Partner" and collectively as "Offeree Partners"). The Purchase
Terms must provide for payment in full at the Closing by cashier's check or wire
transfer. The failure to provide such Purchase Terms shall render the Notice of
Offer invalid and shall prohibit the sale of the Offered Interests to the
Transferee.
(b) The Partnership and the Offeree Partners shall have
the option, exercisable within thirty (30) days of the date on which the Notice
of Offer was given, to purchase all, but not less than all, the Offered
Interests at the Purchase Price and on the Purchase Terms. The Partnership and
each Offeree Partner shall give notice of its or his election to accept or
reject the offer contained in the Notice of Offer in writing to the Offeror
Partner ("Election Notice") within thirty (30) days after the date on which the
Notice of Offer was given ("Election Period").
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(c) In the event the Partnership elects not to purchase
the Offered Interests, the Offeree Partners who have indicated their election to
accept the offer contained in the Notice of Offer (hereinafter referred to
individually as "Purchasing Partner" and collectively as "Purchasing Partners")
shall have the right to purchase all the Offered Interests at the Purchase Price
and on the Purchase Terms in such individual proportions as they shall mutually
agree or, in the absence of such agreement, in such individual proportions as
the amount of each Purchasing Partner's Partnership Percentage bears to the
aggregate Partnership Percentages of all of the Purchasing Partners. The
foregoing shall not prohibit the Partnership and the Offeree Partners from
collectively purchasing all the Offered Interests in such individual proportions
as they shall mutually agree upon.
(d) In the event that neither the Partnership nor any of
the Offeree Partners elect to accept the offer contained in the Notice of Offer
within the Election Period, the Offeror Partner may sell the Offered Interests
to the Transferee for the Purchase Price and subject to the Purchase Terms;
provided, however, that said sale to the Transferee must be unconditionally
concluded within sixty (60) days after the expiration of the Election Period or
the Offeror Partner must again offer the Offered Interests to the Partnership
and the Offeree Partners in accordance with the provisions of this Section.
(e) The closing ("Closing") under this Article shall be
held on the date set forth for Closing in the Purchase Terms, which date shall
be no earlier than the ninetieth (90th) day, nor later than the one hundred
twentieth (120th) day, following the date on which the Notice of Offer is given.
At Closing, the Offeror Partner shall: (i) represent and warrant that it is the
sole owner of the Interests being sold, that such Interests are held free and
clear of any and all pledges, claims, liens and rights of others (other than the
effect of this Agreement) and that the Offeror Partner has the full power, right
and authority to consummate the transaction; and (iii) deliver to the
Partnership and/or the Purchasing Partners the Interests so sold, together with
all other documents necessary to transfer such Interests.
(f) In the event that the Partnership and/or any of the
Offeree Partners indicate in the Election Notice its or their election to accept
the offer contained in the Notice of Offer, and, through no fault of the Offeror
Partner, the Partnership and/or the Offeree Partners fail to close on the
Offered Interests within the time period provided in Section 8.04(e) hereof
("Default"), the Offeror Partner, in addition to any other rights and remedies
he may have at law or in equity, may sell, transfer, or otherwise dispose of or
pledge the Offered Interests or any portion thereof at any consideration
therefor to a third party.
8.05 Releases from Partnership Obligations. In the event that a
Partner ("Selling Partner") shall sell its Partnership Interest in accordance
with the provisions of this Article VIII to other Partner(s) ("Payor Partner"):
(a) The Partnership shall satisfy, by payment in full,
all indebtedness of the Partnership to the Selling Partner, any family members
of the Selling Partner or any entities controlled by the Selling Partner or
members of his family ("Cash Advances"), and the Partnership shall use its best
efforts to cause the Selling Partner to be released from all obligations and
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indebtedness guaranteed by the Selling Partner on behalf of the Partnership
("Guaranties"). In the event that, despite the Partnership's and the Payor
Partner's best efforts, they are unable to cause the release of the Selling
Partner from the Guaranties, the Partnership and the Payor Partner shall
indemnify the Selling Partner against all obligations of the Selling Partner
arising from the Guaranties. The Partnership and the Partner recognize that the
provisions of this Section are a material inducement to the making of the Cash
Advances and the Guaranties by the Partners. No Partner shall be required to
sell his Stock and Partnership Interests unless and until the provisions of this
Article shall be complied with or waived in writing by such Partner.
(b) The Partnership and the Partners shall have the right
and, on behalf of the Partnership, the Payor Partner shall have the obligation,
to offset in full against all sums payable to the Selling Partner by the
Partnership or the Payor Partner in exchange for the Selling Partner's
Partnership Interest, the amount of all principal and interest on loans or any
other indebtedness due the Partnership from the Selling Partner. Neither the
Partnership nor the Payor Partner shall be obligated to make any payment to the
Selling Partner until such time as the principal and interest due the
Partnership from the Selling Partner has been paid in full. To the extent
credited against sums payable to the Selling Partner, such loan or other
indebtedness shall be canceled and discharged. Such credit and offset by the
Partnership or by the Payor Partner shall be made regardless of the due date of
the Selling Partner's loans or other indebtedness. In the event that the amount
of the loans or other indebtedness due the Partnership from the Selling Partner
exceeds the sums payable to the Selling Partner in exchange for his Partnership
Interest, the amount by which such loans or other indebtedness exceeds such sums
shall be immediately due and payable at the closing of such Partnership Interest
sale regardless of the stated due date of the Selling Partner's loans or other
indebtedness. All amounts set-off pursuant to this Article by the Payor Partner
shall be immediately paid in full to the Partnership by the Payor Partner.
ARTICLE IX
FISCAL MATTERS
9.01 Books and Records. The General Partners shall keep, or cause
to be kept, full and accurate books and records of all transactions of the
Partnership. All organizational records of the Partnership shall, at all times,
be maintained at the principal office of the Partnership within or outside the
State of Florida. Each Partner shall at all times, subject to reasonable notice,
have the right to inspect the books and records of the Partnership.
9.02 Reports and Statements.
(a) Within sixty (60) days after the end of each
Partnership Accounting Year, the General Partners shall, at the expense of the
Partnership, cause to be delivered to the Limited Partners the following
financial statements:
(i) A balance sheet of the Partnership as of the
end of such Partnership accounting year; and
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(ii) A profit and loss statement for such
Partnership accounting year.
The General Partners shall accompany such financial
statements with such other information as, in the judgment of the General
Partners, may be reasonably necessary for the Limited Partners to be advised of
the financial status and results of operations of the Partnership.
(b) At the option of either General Partner, the
financial statements of the Partnership shall be audited in accordance with
generally accepted accounting principles and by an auditor reasonably acceptable
to the General Partner requesting the audit, provided, however, that the General
Partner requesting an audit shall be responsible for 75% of the fees and costs
of the auditors in preparing the audit, while the remaining Partners shall be
responsible for the remaining 25% of the fees and costs of the auditors in
preparing the audit, pro rata in accordance with their respective Partnership
Percentages. The amount payable by the General Partner requesting the audit
shall be deducted from any distributions then payable to such General Partner,
or, if no distribution is payable as of the date that the fees and costs are due
and payable to the auditor, then such General Partner shall contribute to the
capital of the Partnership the amount so payable. The fees and costs of the
auditors in preparing the audit shall be specially allocated to the Partners in
accordance with the foregoing, which special allocation shall be made prior to
any allocations under Section 4.01 hereof.
9.03 Tax Matters. The General Partners shall, at the expense of the
Partnership prepare, or cause to be prepared, for delivery to the Limited
Partner within ninety (90) days of the end of the Partnership's accounting year,
all federal and any required state and local income tax returns for the
Partnership for each fiscal year of the Partnership, and, in connection
therewith, shall make any available or necessary federal income tax elections.
9.04 Appointment of Tax Matters Partner. BVP is hereby designated,
pursuant to Code Section 6231(a)(7), as the Partnership's Tax Matters Partner
("TMP"), and is responsible for acting as the liaison between the Partnership
and the Internal Revenue Service ("Service") and as the coordinator of the
Partnership's actions pursuant to a Service tax audit of the Partnership. The
TMP shall have such duties as provided in the Code, in addition to other duties
as are provided under this Agreement. In furtherance of the duties of the TMP
described in this Agreement, the TMP shall be reimbursed by the Partnership for
all expenses, costs and liabilities expended or incurred by the TMP.
ARTICLE X
DISSOLUTION
10.01 Dissolution. The Partnership shall be dissolved only upon the
occurrence of any of the following:
(a) the determination by the General Partners that the
business of the Partnership should be terminated;
(b) the Bankruptcy or insolvency of the Partnership;
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(c) the retirement, withdrawal, dissolution, or
adjudication of Bankruptcy of a General Partner; provided, however, that the
business of the Partnership shall be continued pursuant to the provisions of
this Agreement and the Partnership shall not be dissolved or required to be
wound up if (i) at the time of such event there is at least one remaining
General Partner and that General Partner carries on the business of the
Partnership (any such remaining General Partner being hereby authorized to carry
on the business of the Partnership), or (ii) within a period of thirty (30) days
from the date of such occurrence, the Limited Partners by Required Vote, shall
consent, in writing, that the Partnership be so continued and shall designate
within such writing one or more individuals or legal entities to be admitted to
the Partnership as a successor General Partner pursuant to this Agreement. In
the event a successor General Partner is selected by the Limited Partners, the
successor General Partner shall assume all the rights, powers and obligations of
the General Partners under this Agreement upon the written acceptance, adoption
and assumption by the successor General Partner of all the terms and provisions
of, and obligations of the General Partners, under this Agreement, and the
interest of the removed General Partners shall be converted to that of a Limited
Partner. In furtherance of the foregoing provisions, the parties hereto agree to
execute, file, record and/or publish all such other instruments and documents as
may be necessary to accomplish the foregoing.
(d) the sale or other disposition (including condemnation
or casualty loss) of all or substantially all of the property and assets of the
Partnership;
(e) December 31, 2028; or
(f) the occurrence of any other event causing the
dissolution of a limited partnership under the Law.
10.02 Upon Dissolution. Upon dissolution of the Partnership, the
General Partners, or, if the dissolution is caused by the dissolution,
withdrawal, and/or adjudication of Bankruptcy of the sole remaining General
Partner, then the Limited Partners by Required Vote shall determine as speedily
as possible whether or not the Partnership shall be reformed (as a limited
partnership, general partnership or similar organization) and its business
continued under arrangements which make proper provision for its liabilities. In
the event of such reformation, such reformation shall constitute the termination
of the Partnership.
10.03 Wind-Up of Affairs. Upon dissolution, the General Partners
(or, if the dissolution is pursuant to Section 10.01(c) hereof, then such
"Liquidating Person" as shall be designated by the Required Vote of the Limited
Partners) shall proceed with dispatch and without any unnecessary delay to sell
or otherwise liquidate the Partnership assets. The Capital Account of each
Partner shall be determined. Profits or losses to the date of termination,
including realized profits (whether or not recognized for Federal income tax
purposes) or losses arising from a sale of all of the assets of the Partnership,
and unrealized profits and losses on any assets to be distributed in kind
(determined as if such assets had been sold by the Partnership for prices equal
to their respective fair market value) shall be allocated as set forth in
Article IV and credited or charged to the Capital Accounts of the
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Partners. After paying or duly providing for all liabilities to creditors of the
Partnership, the General Partners or Liquidating Person shall distribute the net
proceeds and any other liquid assets of the Partnership among the Partners in
the manner hereinafter set forth:
(a) First, to the expenses of any such sale or
disposition;
(b) Next, to the payment of just debts and liabilities of
the Partnership (including all amounts of any principal or interest payable with
respect to any loans from Partners), in the order of priority as provided by the
Law;
(c) Next, to the establishment of any reserve that the
General Partners or Liquidating Person may deem reasonably necessary for any
contingent or unforeseen liabilities and other obligations of the Partnership or
of the General Partners arising out of or in conjunction with the Partnership's
affairs;
(d) Finally, to the Partners, an amount equal to their
then existing positive Capital Account balances, as determined after taking into
account all Capital Account adjustments for the Partnership taxable year during
which such liquidation occurs.
In the event the Partnership is "liquidated" within the meaning of
Regulations Section 1.704-1(b)(2)(ii)(g), (x) distributions shall be made
pursuant to this Article X to the Partners who have positive Capital Accounts in
compliance with Regulations Section 1.704-1(b)(2)(ii)(b)(2), and (y) if any
General Partner's Capital Account has a deficit balance (after giving effect to
all contributions, distributions, and allocations for all taxable years,
including the taxable year during which such liquidation occurs), such General
Partner shall contribute to the capital of the Partnership the amount necessary
to restore such deficit balance to zero in compliance with Regulations Section
1.704-1(b)(2)(ii)(b)(3). If any Limited Partner has a deficit balance in his
Capital Account (after giving effect to all contributions, distributions and
allocations for all taxable years, including the taxable year during which such
liquidation occurs), such Limited Partner shall have no obligation to make any
contribution to the capital of the Partnership with respect to such deficit, and
such deficit shall not be considered a debt owed to the Partnership or to any
other Person for any purpose whatsoever.
The wind-up of the affairs of the Partnership shall be conducted
exclusively by the General Partners or Liquidating Person, which is hereby
authorized to do any and all acts and things authorized by law for such
purposes. In liquidating the assets of the Partnership, all assets of a saleable
value shall be sold at such price and terms as the General Partners or
Liquidating Person in good faith determines to be fair and equitable. Any
partnership, corporation or other entity in which all or any of the Partners are
in any way interested may purchase such assets at such sale in such proportions
as the General Partners and the Partners desiring to purchase may agree. A
reasonable time shall be allowed for the orderly liquidation of the assets of
the Partnership and the discharge of liabilities to creditors so as to enable
the Partnership to minimize the losses normally occurring upon a liquidation.
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If any assets of the Partnership are to be distributed in kind, such
assets shall be distributed on the basis of the then fair market value thereof
(after adjusting the Capital Accounts of all Partners for any unrealized gain or
loss inherent in such property, as set forth above). The fair market value shall
be determined by the General Partners, or, if requested by the Required Vote of
the Limited Partners, by an independent appraiser who shall be a member of the
American Institute of Real Estate Appraisers selected by agreement of the
General Partners and the Limited Partners.
10.04 Termination. The Partnership shall terminate when all
Partnership assets shall have been disposed of.
ARTICLE XI
MISCELLANEOUS
11.01 Amendments.
This Agreement may not be amended by the General Partners
without the written consent of the Required Vote of the Limited Partners:
(i) To extend the term of the Partnership;
(ii) To amend this Section 11.01;
(iii) To continue the Partnership as provided in
Section 10.01(c);
(iv) To modify or amend this Agreement in such
manner as to decrease the interests of a Limited Partner (unless such Limited
Partner consents in writing to such decrease) in Profits, Losses, allocations,
and Distributions; or
(v) To modify or amend any provision hereof
requiring the consent of the Limited Partners.
11.02 Notices. All notices, demands and other communications given
hereunder shall be in writing and shall be deemed to have been duly given (a)
upon hand delivery thereof, (b) upon telefax and written confirmation of
receipt, (c) upon receipt of any overnight deliveries, or (d) on the third (3rd)
business day after mailing United States registered or certified mail, return
receipt requested, postage prepaid, addressed as follows:
If to the General Partners: BankAtlantic Venture Partners 2, Inc.
1350 N.E. 56th Street
Ft. Lauderdale, Florida 33334
Attention: John E. Abdo, President
Facsimile: 954-491-9217
With a copy to: 1750 E. Sunrise Boulevard
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Ft. Lauderdale, Florida 33304
Attention: Alan B. Levan, Chairman
Facsimile: 954-768-0520
Fairways at Grand Harbor, Inc.
801 Uno Lago Drive
Juno Beach, Florida 33408
Attention: J.C. Solomon II, President
Facsimile: 561-625-5689
With a copy to: Ruden, McClosky, Smith, Schuster
& Russell, P.A.
200 East Broward Boulevard
15th Floor
Ft. Lauderdale, Florida 33301
Attn: Barry E. Somerstein, Esq.
Facsimile: 954-764-4996
If to BDC: 1350 N.E. 56th Street
Ft. Lauderdale, Florida 33334
Attention: John E. Abdo, President
Facsimile: 954-491-9217
If to Solomon: 801 Uno Lago Drive
Juno Beach, Florida 33408
Facsimile: 561-625-5689
If to Graziotto: 12428 Coconut Row
Palm Beach Gardens, Florida 33410
Facsimile: 561-625-5689
or to such other address or to such other person as any party shall designate to
the others for such purposes in the manner hereinabove set forth.
11.03 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.
11.04 Successors and Assigns. This Agreement and any amendments
hereto shall be binding upon and, to the extent expressly permitted by the
provisions hereof, shall inure to the benefit of the Partners, their respective
successors and assigns.
11.05 Applicable Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Florida. This Agreement is
intended to be performed in accordance with, and only to the extent permitted
by, all applicable laws, ordinances, rules, and regulations of the jurisdiction
in which the Partnership does business.
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11.06 Entire Agreement. This Agreement sets forth all (and is
intended by all parties hereto to be an integration of all) of the promises,
agreements, conditions, understandings, warranties and representations among the
parties hereto with respect to the Partnership, the Partnership business and the
Partnership assets, and there are no promises, agreements, conditions,
understandings, warranties or representations, oral or written, express or
implied, except as set forth herein.
11.07 Counterparts. This Agreement and any amendments hereto may be
executed in counterparts, each of which shall be deemed an original, and such
counterparts shall constitute but one and the same instrument.
11.08 Gender. Whenever the context requires, any pronoun used herein
may be deemed to mean the corresponding masculine, feminine or neuter in form
thereof and the singular form of any nouns and pronouns herein may be deemed to
mean the corresponding plural and vice versa as the case may require.
11.09 Arbitration. Any controversy, dispute, disagreement or claim
arising out of or related to any provision of this Agreement, or any alleged
breach of provisions relating thereto, other than with respect to any provision
hereunder for which injunctive or other equitable relief is specifically
provided for hereunder, shall be settled exclusively by binding arbitration,
which shall be conducted in Palm Beach County, Florida before a panel of three
arbitrators in accordance with the Commercial Arbitration Rules of the American
Arbitration Association as in effect from time to time, except as modified by
the agreement of all of the parties to this Agreement. The arbitrator(s) shall
use their best efforts to conduct the arbitration so that a final result,
determination, finding, judgment and/or award (the "Final Determination") is
made or rendered no later than ninety (90) business days after the delivery of
the notice of arbitration nor later than twenty (20) days following conclusion
of the arbitration hearing. The Final Determination must be signed by the
arbitrator. The Final Determination shall be final and binding on all parties
and there shall be no appeal from or reexamination of the Final Determination,
except for fraud, perjury, evident partiality or misconduct by an arbitrator
prejudicing the rights of any party and to correct manifest clerical errors. The
parties to such arbitration may enforce any Final Determination in any state or
federal court having jurisdiction over the dispute.
11.10 Remedies. Each of the Partners acknowledge and agree that in
the event that a Partner shall violate any of the restrictions or fail to
perform any of the obligations hereunder, the Partnership or the other Partners
will be without adequate remedy at law and will therefore be entitled to enforce
such restrictions or obligations by temporary or permanent injunctive or
mandatory relief obtained in an action or proceeding instituted in any court of
competent jurisdiction without the necessity of proving damages and without
prejudice to any other remedies it may have at law or in equity.
11.11 No Third Party Beneficiary. This Agreement is made solely and
specifically among and for the benefit of the parties hereto, and their
respective successors and assigns subject to the express provisions hereof
relating to successors and assigns, and no other Person shall have any
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rights, interest or claims hereunder or be entitled to any benefits under or on
account of this Agreement as a third party beneficiary or otherwise.
11.12 No Recordation. Neither this Agreement nor any memorandum
thereof shall be recorded amongst the public records of any governmental
authority.
11.13 Time of the Essence. Time is of the essence as to all time
periods set forth in this Agreement.
THIS SPACE INTENTIONALLY BLANK
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IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Agreement as of the day and year first above written.
GENERAL PARTNERS:
FAIRWAYS AT GRAND HARBOR, INC., a
Florida corporation
By:
BANKATLANTIC VENTURE
PARTNERS 2, INC., a Florida corporation
By:
LIMITED PARTNERS:
BANKATLANTIC DEVELOPMENT
CORPORATION, a Florida corporation
By:
J.C. SOLOMON II
RAYMOND E. GRAZIOTTO
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