EXHIBIT 10.4
AMENDED AND RESTATED JOINT VENTURE AGREEMENT
OF THE FUND IX, FUND X, FUND XI AND REIT
JOINT VENTURE
AMENDED AND RESTATED
JOINT VENTURE AGREEMENT
OF
THE FUND IX, FUND X, FUND XI AND REIT JOINT VENTURE
THIS AMENDED AND RESTATED JOINT VENTURE AGREEMENT OF THE FUND IX, FUND X,
FUND XI AND REIT JOINT VENTURE (the "Agreement") is made and entered into as of
the 11th day of June, 1998, by and among ▇▇▇▇▇ REAL ESTATE FUND IX, L.P., a
Georgia limited partnership having ▇▇▇ ▇. ▇▇▇▇▇, III and ▇▇▇▇▇ Partners, L.P., a
Georgia limited partnership, as general partners ("Fund IX"), ▇▇▇▇▇ REAL ESTATE
FUND X, L.P., a Georgia limited partnership having ▇▇▇ ▇. ▇▇▇▇▇, III and ▇▇▇▇▇
Partners, L.P., a Georgia limited partnership, as general partners ("Fund X"),
▇▇▇▇▇ REAL ESTATE FUND XI, L.P., a Georgia limited partnership having ▇▇▇ ▇.
▇▇▇▇▇, III and ▇▇▇▇▇ Partners, L.P., a Georgia limited partnership, as general
partners ("Fund XI"), and ▇▇▇▇▇ OPERATING PARTNERSHIP, L.P., a Delaware limited
partnership having ▇▇▇▇▇ Real Estate Investment Trust, Inc., a Maryland
corporation, as general partner (the "▇▇▇▇▇ REIT"), for the purpose of amending
and restating that certain Joint Venture Agreement of Fund IX and Fund X
Associates dated March 20, 1997, as amended (the "Original Agreement"), and to
effect the admission of Fund XI and the ▇▇▇▇▇ REIT to the Joint Venture. Each
of the parties may also be referred to herein as a "Venturer" and together as
the "Venturers."
W I T N E S S E T H :
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WHEREAS, Fund IX and Fund X have previously formed a joint venture (the
"Joint Venture") pursuant to the terms of that certain Joint Venture Agreement
of Fund IX and Fund X Associates dated March 20, 1997 (as amended, the "Original
Agreement"); and
WHEREAS, the Joint Venture has previously acquired and currently owns the
following three properties: (i) the ABB Building located in Knoxville, ▇▇▇▇
County, Tennessee, (ii) the Ohmeda Building located in Louisville, Boulder
County, Colorado, and (iii) the 360 Interlocken Building located in Broomfield,
Boulder County, Colorado; and
WHEREAS, it is contemplated that the Joint Venture shall acquire certain
additional Properties, including but not limited to: (i) the purchase of the
Lucent Technologies Building located in Oklahoma City, Oklahoma, and (ii) the
acquisition of the Iomega Building located in Ogden, ▇▇▇▇▇ County, Utah, to be
transferred and contributed to the Joint Venture by Fund X as an additional
Capital Contribution; and
WHEREAS, the parties desire to effect the admission of Fund XI and the
▇▇▇▇▇ REIT to the Joint Venture pursuant to the terms and provisions hereof; and
WHEREAS, the parties desire to amend and restate the Original Agreement in
its entirety as hereinafter set forth.
NOW, THEREFORE, for and in consideration of the mutual covenants
hereinafter set forth, the parties hereto hereby covenant and agree as follows:
ADMISSION OF FUND XI AND
THE ▇▇▇▇▇ REIT TO THE JOINT VENTURE
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Fund XI and the ▇▇▇▇▇ REIT are hereby admitted to the Joint Venture
pursuant to the terms and provisions of this Agreement.
RESTATEMENT OF ORIGINAL AGREEMENT
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The Original Agreement is hereby amended and restated in its entirety as
follows:
1. DEFINITIONS.
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For the purposes of this Agreement, the following defined terms shall
have the meanings ascribed thereto.
1.1 "Administrative Venturer" means the Entity responsible for the
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conduct of the ordinary and usual business of the Venture and the implementation
of the decisions of the Venturers, all as is more fully set forth in Subsection
4.2 hereof. The initial Administrative Venturer shall be Fund IX.
1.2 "Agreed Value" means with respect to Contributed Property the
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fair market value of such property as of the date of contribution to the Venture
as determined by the general partners of the Venturers.
1.3 "Approve," "Approved" or "Approval" means, as to the subject
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matter thereof and as the context may require, an express consent evidenced by
and contained in a written statement signed by the approving Entity. A copy of
each such written statement shall be kept at the office of the respective
Venturer and shall be available for inspection by the other Venturer upon
request.
1.4 "Bankrupt" or "Bankruptcy" means the occurrence of one or more
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of the following events:
(i) The appointment of a permanent or temporary receiver of the assets
and properties of the Venture or a Venturer, and the failure to secure the
removal thereof within 60 days after such appointment;
(ii) The adjudication of the Venture or a Venturer as bankrupt or the
commission by the Venture or a Venturer of an act of bankruptcy;
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(iii) The making by the Venture or a Venturer of an assignment for the
benefit of creditors;
(iv) The levying upon or attachment by process of the assets and
properties of the Venture or a Venturer; or
(v) The use by the Venture or a Venturer, whether voluntary or
involuntary, of any debt or relief proceedings under the present or future law
of any state or of the United States.
1.5 "Capital Account" means a separate account maintained for each
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Venturer in a manner which complies with Treasury Regulation Section 1.704-1(b),
as may be amended or revised from time to time.
1.6 "Capital Contributions" means the aggregate contributions to
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the capital of the Venture made by the Venturers as Capital Contributions
pursuant to Subsection 3.1 hereof.
1.7 "Contributed Property" means the interest of each Venturer
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contributing property (excluding cash or cash equivalents) to the Venture in
such property.
1.8 "Defaulting Venturer" means any Venturer failing to perform any
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of the obligations of such Venturer under this Agreement or violating the
provisions of this Agreement.
1.9 "Distribution Percentage Interests" means collectively the
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interests in the income, gains, losses, deductions, credits, Net Cash Flow,
Extraordinary Receipts, as determined by Subsection 3.2 hereof, as such may be
adjusted from time to time as provided in this Agreement.
1.10 "Entity" means any person, corporation, partnership (general or
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limited), joint venture, association, joint stock company, trust or other
business entity or organization.
1.11 "Extraordinary Receipts" means those funds of the Venture which
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are derived from (i) the net proceeds of any casualty insurance insuring any of
the Properties or any portion thereof, to the extent not applied to the repair,
restoration or replacement of the Properties or any portion thereof as may be
Approved by the Venturers; (ii) the net proceeds of any condemnation, or any
taking by eminent domain, or any transfer in lieu thereof, of any of the
Properties, or any portion thereof, to the extent not applied to the repair,
restoration or reconstruction of any remaining portion of the Properties as may
be Approved by the Venturers; (iii) the net proceeds of any sale of any of the
Properties, or any portion thereof; and (iv) the net proceeds of any
indebtedness (or any refinancing of such indebtedness) secured in whole or in
part by any of the Properties or any portion thereof.
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1.12 "Fiscal Year" means the fiscal year of the Venture established
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under Subsection 3.4(c) hereof.
1.13 "I.R.C." means the Internal Revenue Code of 1986, as amended.
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1.14 "Lease" means a lease or rental agreement now or hereafter
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existing between the Venture, as lessor or landlord (whether initially or by
assignment) and an Entity.
1.15 "Leasing Agreements" means, collectively, those certain Leasing
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and Tenant Coordinating Agreements between the Venturers as "Owner" and ▇▇▇▇▇
Management Company, Inc. as "Agent" therein, concerning the leasing of the
Properties.
1.16 "Major Decisions" means any decision or action to (i) convey by
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the Venture substantially all the assets of the Venture; (ii) acquire any
Property; (iii) finance or borrow or execute any promissory note or other
obligation (other than a Lease) or mortgage or other encumbrance in the name of
or on behalf of the Venture; (iv) retain the services of a manager other than
▇▇▇▇▇ Management Company, Inc.; (v) approve each construction and architectural
contract and all architectural plans, specifications and drawings and all
revisions or changes thereof in connection with the development and construction
of any improvements for any Property; (vi) reduce any portion of the insurance
program for the Properties or the Venture; (vii) determine any fee or other
amount to be paid to either Venturer or any affiliate of a Venturer; (viii) make
any expenditure or incur any obligation by or on behalf of the Venture involving
a sum in excess of $15,000 for any transaction or group of similar transactions
except for expenditures made and obligations incurred pursuant to and
specifically set forth in a budget Approved by the Venturers; (ix) adjust,
settle or compromise any claim, obligation, debt, demand, suit or judgment
against the Venture or any Venturer in its capacity as a Venturer, or waive any
breach of or default in any monetary or non-monetary obligation owed to the
Venture, involving singly or in the aggregate an amount in excess of $15,000, or
in the initiation of any such claim or suit for the benefit of the Venture; (x)
convey or sell any Property or authorize the conveyance or sale of all
Properties; and (xi) make any other decision or action which by the provisions
of this Agreement is required to be Approved by the Venturers or which in a
material respect affects the Venture or any of the assets or operations thereof.
All Major Decisions shall be made by the Venturers in a timely manner with due
regard for the necessity of obtaining and evaluating the information necessary
for making such Major Decisions.
1.17 "Management Agreements" means, collectively, those certain
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Management Agreements between the Venturers as "Owner" and ▇▇▇▇▇ Management
Company, Inc. as "Manager" therein, concerning the management of the Property.
1.18 "Manager" means ▇▇▇▇▇ Management Company, Inc.
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1.19 "Net Cash Flow" means for a given fiscal period, those funds of
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the Venture constituting the gross cash receipts of the Venture from the
operation of the Properties (including interest and proceeds from business
interruption or rent insurance) for such period
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exclusive of Capital Contributions by the Venturers and Extraordinary Receipts,
which are available for distribution to the Venturers following (i) the payment
of all operating, fixed cost and capital expenditures of the Venture, for which
no reserves have been established, applicable to such period; (ii) the payment
of all principal and interest with respect to any debt secured by any mortgage
permitted by this Agreement applicable to such period; and (iii) the
establishment by the Venturers of appropriate reserves for taxes, debt service,
maintenance, repairs and other expenses and working capital requirements of the
Venture including, without limitation, accruals for real estate taxes, insurance
and other annual expense items (unless and to the extent the same are escrowed
with a mortgagee).
1.20 "Nondefaulting Venturer" in the context wherein one or more
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Venturers become a Defaulting Venturer, means the remaining Venturer or
Venturers (provided the remaining Venturer or Venturers are not also Defaulting
Venturers).
1.21 "Notice" means a written advice or notification required or
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permitted by this Agreement, as more particularly provided in Subsection 8.1
hereof.
1.22 "Prime Rate" means the rate of interest announced from time to
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time by NationsBank of Georgia, N.A. as its prime rate. In the event the prime
rate of NationsBank of Georgia, N.A. is hereafter discontinued or becomes
unascertainable, the Administrative Venturer shall designate a comparable
reference rate to be the Prime Rate.
1.23 "Property" means any and all tract or tracts of land (and all
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rights and appurtenances incident thereto) owned or to be owned by the Venture
and all improvements located, constructed or developed thereon or to be
constructed or developed thereon.
1.24 "Properties" means, collectively, all Property of the Venture at
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any given time.
1.25 "Purchasing Party" means the Venturers other than the Selling
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Party in the event of a proposed transfer described in Subsection 6.4 hereof.
1.26 "Selling Party" means the Venturer desiring to transfer its
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interest in a transaction described in Subsection 6.4 hereof.
1.27 "Venture" means this joint venture formed pursuant to the laws of
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the State of Georgia by this Agreement.
1.28 "Venturer" or "Venturers" means the party or parties to this
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Agreement and all permitted successors and assigns thereof.
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1.29 Other terms defined in this Agreement:
Term Section
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"Assignment" 6.1
"Right of First Refusal" 6.2
"Certification" 6.4(a)
"Accepting Venturer" 6.5(a)
"Dissenting Venturer" 6.5(a)
2. THE VENTURE.
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2.1 Formation of Venture. Fund IX and Fund X have previously formed
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the Joint Venture on March 20, 1997, pursuant to the terms of the Original
Agreement and for the limited purposes and scope set forth therein and herein.
The rights and obligations of the Venturers and the status, administration and
termination of the Venture shall be governed by the laws of the State of
Georgia. The Venture is being formed for the sole purpose of acquiring, owning,
developing, operating and eventually selling the Properties.
2.2 Purposes and Scope of Venture. Subject to the provisions of
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this Agreement, the activities of the Venture shall be limited strictly to the
acquisition, ownership, financing, development, leasing, operation, sale and
management of the Properties for the production of income and profit, including
all activities reasonably necessary or desirable to accomplish such purposes,
and shall not be extended by implication or otherwise unless Approved by all
venturers. Nothing in this Agreement shall be deemed to restrict in any way the
freedom of any Venturer to conduct any other business or activity whatsoever
(including, without limitation, the acquisition, development, leasing, sale,
operation and management of other real property) without any accountability to
the Venture or any other Venturer, even if such business or activity competes
with the business of the Venture, it being understood by each Venturer that the
other Venturer may be interested directly or indirectly in various other
businesses and undertakings not included in the Venture.
2.3 Name of Venture. The business and affairs of the Venture shall
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be conducted solely under the name "The Fund IX, Fund X, Fund XI and REIT Joint
Venture" (or such other names as shall be approved by the Venturers), and such
name shall be used at all times in connection with the business and affairs of
the Venture. The Venturers shall execute any assumed or fictitious name
certificate or certificates required by law to be filed in connection with the
formation of the Venture and shall cause such certificate or certificates to be
filed in the appropriate records.
2.4 Scope of Authority. Except as otherwise expressly and
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specifically provided in this Agreement, no Venturer shall have any authority to
act for, or assume any obligations or responsibility on behalf of, any other
Venturer or the Venture.
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2.5 Principal Place of Business. The principal place of business
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and initial office of the Venture shall be located at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, and may be relocated as may be from time to time
Approved by the Venturers.
2.6 Representations, Warranties and Indemnity. In order to induce
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the other Venturer to enter into this Agreement, each Venturer does hereby make
to each other Venturer the representations and warranties hereinafter set forth,
and does hereby agree to indemnify and hold each other Venturer harmless from
any and all loss, expense or liability any other Venturer may suffer as a result
of any inaccuracy as of the date hereof in any representation and warranty set
forth below:
(a) Authorization. The execution and delivery of this Agreement
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has been duly authorized by the agreements by which each Venturer was either
created or currently governed.
(b) Claims. There is no claim, litigation, proceeding or
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governmental investigation pending, or, so far as is known to each Venturer,
threatened, against or relating to each Venturer, or the transactions
contemplated by this Agreement which does or would reasonably be expected
materially and adversely to affect the ability of each Venturer to enter into
this Agreement or to carry out its obligations hereunder, and there is not any
basis for any such claim, litigation, proceeding or governmental investigation.
(c) Conflicts. Neither the consummation of the transactions
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contemplated by this Agreement to be performed, nor the fulfillment of the
terms, conditions and provisions of this Agreement, conflict with or will result
in the breach of any of the terms, conditions or provisions of, or constitute a
default under, the agreements by which each Venturer was created or is currently
governed or any material agreement, indenture, instrument or undertaking to
which each Venturer is a party.
(d) Investment Objectives. The investment objectives of each
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Venturer with respect to the Properties and the objectives of the Venture are:
(i) to maximize Net Cash Flow; (ii) to preserve, protect and return the
Venturers' investment in the Venture; and (iii) to realize appreciation upon the
sale of the Properties.
(e) Charges to the Venturer. Neither Venturer will be charged,
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directly or indirectly, more than once for the same services.
2.7 Term of Venture.
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(a) Commencement. The Venture term shall begin on the date of
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this Agreement as set forth above and end upon dissolution of the Venture.
(b) Dissolution and Termination. Dissolution shall occur upon the
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occurrence of any of the events described in Section 7 of this Agreement. Upon
dissolution, the
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assets shall be liquidated in due course and distributed as provided in
Subsection 3.3(c)(i) hereof. The Venture shall continue until termination in
accordance with the relevant dissolution and termination provisions of the
Georgia Uniform Partnership Act.
3. FINANCIAL STRUCTURE.
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3.1 Capital Contributions. The Venturers shall from time to time make
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Capital Contributions to the Venture in such amounts as are agreed to by the
Venturers.
3.2 Distribution Percentage Interest. The Distribution Percentage
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Interest of each of the Venturers shall be equal to the percentage equivalent
(rounded to the nearest one-hundredth of a percent) of a fraction, the numerator
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of which is the aggregate of all Capital Contributions (or the Agreed Value
thereof) made by each such Venturer to the Joint Venture, and the denominator of
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which is the aggregate amount of all Capital Contributions (or the Agreed Value
thereof) made to the Joint Venture by all of the Venturers. Each Venturer's
interest in the Venture shall always be proportional to its Capital
Contributions. By their execution hereof, the Venturers hereby acknowledge and
agree that the Agreed Value of the tract of land located in ▇▇▇▇ County,
Tennessee, which was transferred and contributed to the Joint Venture by Fund IX
in March, 1997, for all purposes under this Agreement, shall be deemed to be
$1,306,393 (which amount was equivalent to the purchase price and all
acquisition and development costs and expenses expended by Fund IX to such date
with respect to such property). The Venturers further acknowledge and agree
that, upon its transfer and contribution to the Joint Venture by Fund X, the
Agreed Value of the Iomega Building, for all purposes under this Agreement,
shall be deemed to be $5,059,624 (which amount is equivalent to the purchase
price and all acquisition costs and expenses expended to date by Fund X with
respect to the Iomega Building).
Each Venturer (the "First Venturer") does hereby agree to indemnify
and hold the other Venturers (collectively, the "Second Venturer") harmless from
and against any claim, action, liability, loss, damage, cost or expense,
including, without limitation, attorney's fees and expenses incurred by the
Second Venturer by reason of (i) any act or omission of the First Venturer in
connection with the operation of the Venture and the Properties, or (ii) the
claims made by third parties to the extent that the Second Venturer's percentage
share of the total liability, loss, damage, cost or expense incurred by the
Venture and the Venturers in connection with such claims exceeds its
Distribution Percentage Interest at the time such liability, loss, damage, cost
or expense is suffered or incurred. Upon dissolution, each Venturer shall look
solely to the assets of the Venture for the return of its investment, and if the
Venture Property remaining after payment or discharge of the debts and
liabilities of the Venture, including debts and liabilities owed to one or more
of the Venturers, is insufficient to return the aggregate Capital Contributions
of each Venturer, such Venturers shall have no recourse against the Venture or
any other Venturer.
3.3 Allocations and Distributions. Allocations for accounting
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purposes and for federal, state and local income tax purposes of each item of
income, loss, deduction and gain,
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and distributions of Net Cash Flow and Extraordinary Receipts shall be allocated
among the Venturers as follows:
(a) Allocation of Tax Items. For federal, state and local income
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tax purposes and for purposes of maintaining the Venturers' Capital Accounts,
except as otherwise provided herein, each item of income, gain, loss and
deduction of the Venture for each tax year shall be allocated to the Venturers
in accordance with their Distribution Percentage Interests.
(b) Net Cash Flow. All distributions of Net Cash Flow shall be
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made in accordance with the Venturers' Distribution Percentage Interests and
shall be made at such intervals as may be approved by the Venturers, but in no
event less frequently than quarterly.
(c) Extraordinary Receipts. Distributions of Extraordinary
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Receipts shall be made as follows:
(i) Distributions Not in Connection With Dissolution.
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Distribution of Extraordinary Receipts not generated in connection with an event
of dissolution shall be made as follows: first, to the establishment of any
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reserve approved by the Venturers; and second, to the Venturers based on their
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respective Distribution Percentage Interests.
(ii) Distributions in Connection With Dissolution.
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Distribution of Extraordinary Receipts generated in connection with an event of
dissolution (as well as the other assets of the Venture) shall be made as
follows: first, to the payment of debts and liabilities of the Venture to
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creditors (including all mortgages, but excluding any other debts or liabilities
to Venturers or affiliates of Venturers), and to the expenses of liquidation;
second, to the establishment of such reserves as the Venturers may deem
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reasonably necessary for contingent or unforeseen liabilities or obligations of
the Venture, which may be held in escrow for a reasonable period of time and
then distributed pursuant to the remainder of this Subsection; third, to the
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repayment of any remaining debts and obligations of the Venture to the Venturers
or affiliates of the Venturers; and fourth, to the Venturers in accordance with
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the positive balances in their respective Capital Accounts.
(d) Compliance with Section 704(c). To comply with Section 704(c)
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of the I.R.C., items of income, gain, loss, depreciation and cost recovery
deductions attributable to Contributed Property shall be allocated for federal
income tax purposes among the Venturers in the manner provided under Section
704(c) of the I.R.C. taking into account the variation, if any, between the
Agreed Value of such Property and its adjusted tax basis at the time of
contribution.
(e) Qualified Income Offset. Notwithstanding any provision to the
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contrary contained herein, in the event that any Venturer receives an
adjustment, allocation or distribution described in Treasury Regulations
Sections 1.704-1(b)(2)(ii)(d)(4), (5) or (6) which causes a deficit balance in
such Venturer's Capital Account, such Venturer will be allocated items of income
or gain (consisting of a pro rata portion of each item of partnership income,
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including gross income, and gain for such year) in an amount and manner
sufficient to eliminate such deficit balance as quickly as possible, all in
accordance with Treasury Regulations Section 1.704-1(b)(2)(ii)(d). (It is the
intent of the Venturers that the foregoing provision constitute a "Qualified
Income Offset," as defined in Treasury Regulations Section 1.704-1(b)(2)(ii)(d),
and the foregoing provision shall in all events be interpreted so as to
constitute a valid "Qualified Income Offset.")
3.4 Income Taxes and Accounting.
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(a) Income Tax Returns. All income tax returns of the Venture
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shall be prepared on an accrual basis (except to the extent as may otherwise be
Approved by all Venturers or be required by law, statute or regulation governing
such tax and returns).
(b) Elections. Any provision of this Agreement to the contrary
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notwithstanding, solely for federal income tax purposes, each of the Venturers
hereby recognizes that the Venture will be subject to all provisions of
Subchapter K of Chapter 1 of Subtitle A of the I.R.C.; provided, however, that
the filing of U.S. Partnership Returns of Income shall not be construed to
extend the purposes of the Venture or expand the obligations or liabilities of
the Venturers. The Venture shall file an election under Section 754 of the
I.R.C. only in the event of a transfer or proposed transfer by any one or more
Venturers of all or any part of their interest or interests in the Venture to
any Entity. Such election shall be filed by the Venture upon the request of any
Venturer made with respect to the income tax return for the period which
includes the date of transfer of such interest in the Venture; such request
shall be in writing and shall be made not less than 60 days prior to the initial
date established by law for filing such income tax return.
(c) Fiscal Year. The Venture shall operate on a calendar year
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basis.
(d) Books of Account. The books of account of the Venture and the
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Venturer's Properties shall be kept and maintained at all times by the
Administrative Venturer or the delegated representative thereof at the principal
place of business of the Administrative Venturer. The books of account shall be
maintained on an accrual basis, unless otherwise determined by the
Administrative Venturer, in accordance with generally accepted accounting
principles, consistently applied, and shall show all items of income and expense
relating to the Venture and the Properties.
(e) Reports. The Administrative Venturer shall cause to be
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prepared at the expense of the Venture and furnished to each of the Venturers
the information and data with respect to the Venture during the Fiscal Year as
shall enable each Venturer on a timely basis to prepare or cause to be prepared
the reports required under their respective partnership agreements to be made to
their partners. In addition, within 60 days after the end of each Fiscal Year,
the Administrative Venturer shall use its best efforts to cause to be prepared
and to deliver to each Venturer a report setting forth in sufficient detail all
such information and data with respect to business transactions effected by or
involving the Venture during such Fiscal Year as
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shall enable the Venture and each Venturer to prepare its federal, state and
local income tax returns on a timely basis in accordance with the laws, rules
and regulations then prevailing. The Administrative Venturer shall cause to be
prepared federal, state and local tax returns required of the Venture and submit
such returns to the Venturers no later than 30 days prior to the date required
for the filing thereof and shall file the same.
(f) Records. Any Venturer shall have the right at all reasonable
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times during usual business hours to audit, examine and make copies of the books
of account of the Venture. Such right may be exercised through any agent or
employee of such Venturer designated by such Venturer or by an independent
certified public accountant designated by such Venturer. Any Venturer shall bear
all expenses incurred in any examination or audit made for such Venturer's
account.
(g) Audits. In the event that the Internal Revenue Service or any
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other governmental agency with jurisdiction shall conduct, commence or give
notification of intent to conduct or commence any audit or other investigation
of the books, records, tax returns or other affairs of the Venture, the
Administrative Venturer shall immediately advise the Venturers thereof by
Notice. The Administrative Venturer shall be the "tax matters partner," as that
term is defined by I.R.C., if one is needed for the Venture.
3.5 Banking. Funds of the Venture shall be deposited in an account
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or accounts of a type, in form and name and in a bank or banks selected by the
Administrative Venturer. No funds other than Venture funds shall be deposited
in any such account. Withdrawals from bank accounts shall be made by the
Administrative Venturer and by such other parties as may be designated by the
Venturers.
4. MANAGEMENT.
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4.1 Authority of Administrative Venturer. The overall management
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and control of the business and affairs of the Venture shall be vested in the
Venturers, collectively, acting by and through the Administrative Venturer. The
Administrative Venturer shall have responsibility for establishing the policies
and operating procedures with respect to the business and affairs of the Venture
and for making all decisions, except as otherwise provided herein and except
Major Decisions, as to all matters which the Venture has authority to perform,
as fully as if the Venturers were themselves making such decisions. All
decisions, other than Major Decisions, with respect to the management and
control of the Venture made by the Administrative Venturer shall be binding on
the Venture and all Venturers. The Administrative Venturer shall be responsible
for performing, or for causing to be performed, all acts necessary to accomplish
the purposes of the Venture. No act shall be taken, sum expended, decision made
or obligation incurred by the Venture, or any Venturer, with respect to a matter
within the scope of any of the Major Decisions, unless such matter has been
Approved by all of the Venturers. Except as otherwise expressly provided for in
this Agreement, documents executed by or behalf of the Venture shall be executed
only with the Approval of the Administrative Venturer.
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4.2 Administrative Venturer. The initial Administrative Venturer
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shall be Fund IX. The Administrative Venturer shall, at the expense of the
Venture, discharge or cause the discharge of the duties of the Administrative
Venturer unless and until (i) the Administrative Venturer resigns as the
Administrative Venturer, or (ii) the Administrative Venturer becomes a
Defaulting Venturer. In the event of an occurrence described in either clause
(i) or (ii) of the immediately preceding sentence, the then current
Administrative Venturer shall thereupon be relieved from any further performance
of the functions of the Administrative Venturer under this Agreement and a
replacement for the Administrative Venturer shall be appointed by the remaining
Venturers. In the event an Entity not a Venturer shall be appointed to be
Administrative Venturer, such Entity shall discharge the functions of the
Administrative Venturer under this Agreement but shall not be entitled to any of
the rights, titles or interests of a Venturer. The breach or violation by the
Administrative Venturer of any provision of this Subsection, or of any other
duty or obligation imposed upon the Administrative Venturer by this Agreement,
shall subject to the Administrative Venturer to the provisions of Subsection 4.4
hereof as a Defaulting Venturer (provided the Administrative Venturer is then
also a Venturer) only if such breach or violation by the Administrative Venturer
involves fraud, negligence or willful misconduct. Furthermore, the
Administrative Venturer shall be liable to the Venture and to the Venturers for
any breach or violation of the Administrative Venturer's duties and obligations
under this Subsection only if such breach or violation involves fraud,
negligence or willful misconduct.
(a) Records. The Administrative Venturer shall maintain or cause
-------
to be maintained at the expense of the Venture, books of account as described in
Subsection 3.4(d) hereof.
(b) Property Taxes and Licenses. The Administrative Venturer
---------------------------
shall cause to be filed each year timely ad valorem tax returns for the
Properties.
(c) Leases. The Administrative Venturer is authorized to
------
negotiate and execute Leases on behalf of the Venture without further Approval
of the Venturers and is authorized to delegate this responsibility pursuant to a
management agreement. Initially, this responsibility will be delegated to the
Manager under the Management Agreements and Leasing Agreements by and between
the Venturers and the Manager.
(d) Indemnity. The Venture shall indemnify and hold the
---------
Administrative Venturer harmless against all claims, actions, liability, loss,
damage, cost or expense, including attorney's fees and expenses, by reason of
any act or omission of the Administrative Venturer that is duly authorized and
performed in accordance with the terms and provisions of this Agreement.
However, any Entity which is both the Administrative Venturer and a Venturer
shall be responsible as a Venturer, to the extent of the proportionate liability
thereof, for such obligation for the Venture to so indemnify and hold harmless
the Administrative Venturer. The liability of the Venturers under this
Subsection shall be several, and not joint, and shall be shared in proportion to
the Distribution Percentage Interests of the Venturers.
12
4.3 Compensation of Venturers. No payment will be made by the
-------------------------
Venture to any Venturer for the services of such Venturer or any affiliate,
partner or employee of any Venturer, other than as provided in the Management
Agreements and the Leasing Agreements.
4.4 Defaulting Venturer. If any Venturer fails to perform any of
-------------------
its obligations under this Agreement or violates the terms of this Agreement,
such Venturer shall be a Defaulting Venturer, and any Nondefaulting Venturer
shall have the right to give such Defaulting Venturer a Notice specifically
setting forth the nature of the default and stating that such Defaulting
Venturer shall have a period of 15 days to pay any sums of money specified
therein as due and owing to the Venture or to any Venturer, or 30 days (or such
longer period as is specified in the next succeeding sentence) to cure any other
default specified in such Notice. If the monies specified are not paid within
such 15 day period or such Defaulting Venturer does not cure all other defaults
within such 30 day period, or, if the defaults are not capable of being cured
within such 30 day period, such Defaulting Venturer has not commenced in good
faith the curing of such defaults within such 30 days period and does not
thereafter prosecute to completion with diligence and continuity the curing
thereof, a Nondefaulting Venturer shall have all rights provided in Subsections
4.4(a) through 4.4(c) below, in addition to any other rights it may have under
the Georgia Uniform Partnership Act. If a Defaulting Venturer completely cures
all of such defaults within the aforesaid cure periods, then such defaults shall
be deemed no longer to exist and such Venturer shall be deemed no longer to
constitute a Defaulting Venturer unless and until another default by such
Venturer occurs. A Defaulting Venturer shall have no power or authority to bind
the Venture or the Venturers but shall cooperate with and, to the extent
requested, assist a Nondefaulting Venturers in every way possible.
(a) Equitable Relief. The Nondefaulting Venturer may bring any
----------------
proceeding in the nature of injunction, specific performance or other equitable
remedy, it being acknowledged by each of the Venturers that damages at law may
be an inadequate remedy for a default or threatened breach of this Agreement.
(b) Damages. The Nondefaulting Venturer may bring any action at
-------
law by or on behalf of itself or the Venture as may be permitted in order to
recover damages.
(c) Dissolution. The Nondefaulting Venturer may institute such
-----------
proceedings as may be appropriate to secure an accounting and to dissolve, wind
up and terminate the Venture.
(d) Additional Remedies. The rights and remedies of the Venturers
-------------------
under this Agreement shall not be mutually exclusive; that is, the exercise of
one or more of the provisions hereof shall not preclude the exercise of any
other provisions hereof, except as may be expressly provided in this Agreement.
Each of the Venturers confirms that damages at law may be an inadequate remedy
for a breach or threatened breach of this Agreement and agrees that, in the
event of a breach or threatened breach of any provision hereof, the respective
rights and obligations hereunder shall be enforceable by specific performance,
injunction or other
13
equitable remedy, but nothing herein contained is intended to, nor shall it,
limit or affect any right or rights at law or by statute or otherwise of any
Venturer aggrieved as against any other Venturer for breach or threatened breach
of any provisions of this Agreement, it being the intention of this Subsection
to make clear the Agreement of the Venturers that the respective rights and
obligations of the Venturers under this Agreement shall be enforceable in equity
as well as at law or otherwise.
4.5 Limitation on Authority. Notwithstanding any provision of this
-----------------------
Agreement to the contrary, no Venturer shall have the authority to take any
action which, if taken singularly by such Venturer separate from the Venture,
would be prohibited by such Venturer's governing documents.
4.6 Holding Title as Nominee. With the consent of the other
------------------------
Venturers, any Venturer shall be authorized to hold title to a Property or
Properties as agent or as nominee on behalf of the Venture.
5. INSURANCE.
---------
5.1 Minimum Insurance Requirements. The Venture shall carry and
------------------------------
maintain in force the insurance hereinafter described, the premiums for which
shall be a cost and expense of the Venture.
(a) Liability Insurance. Comprehensive general liability
-------------------
insurance for the benefit of the Venture and the Venturers as named insureds
against claims for "personal injury" liability.
(b) Other Insurance. Such other insurance as the Venturers may
---------------
reasonably deem to be necessary or as may be required by any mortgagee of any
Property of the Venture.
5.2 Insureds. All of the policies of insurance described in
--------
Subsection 5.1 shall name the Venture and each of the Venturers as named
insureds, as their respective interests may appear. All such insurance shall be
effected under policies issued by insurers and be in forms and for amounts
Approved by the Venturers.
6. TRANSFERS AND OTHER DISPOSITIONS.
--------------------------------
6.1 Prohibited Transfers. No Venturer may sell, transfer, assign,
--------------------
mortgage, pledge, hypothecate or otherwise dispose of, encumber or permit or
suffer any encumbrance on (all referred to as "Assignment"), all or any part of
the interest of such Venturer in the Venture or in the Properties (including,
but not limited to, the right to receive any distributions under this Agreement)
unless such an Assignment is Approved by all Venturers, provided that this
restriction on Assignment shall not apply to the Assignment of units of
partnership interests or
14
beneficial interests in a Venturer. Any Assignment made in violation of this
Section 6 shall be void.
6.2 Exceptions. The prohibition in Subsection 6.1 hereof shall not
----------
apply to an Assignment permitted under Subsection 6.4 hereof ("Right of First
Refusal").
6.3 Notice. Each Venturer shall promptly by Notice inform the other
------
Venturer of the occurrence of any disposition not required to have been Approved
by the other Venturer.
6.4 Right of First Refusal. If any Selling Party shall desire to
----------------------
transfer (for the purposes of this Subsection the terms "transfer" and
"transferred" include any and all types of disposition) all or any portion of
its interest in the Venture to any Entity, such Selling Party may consummate
such transfer only if (i) such sale is a sale of Selling Party's interest in the
Venture separate and distinct from any other property, (ii) the consideration
payable is cash and/or note(s) and not an interest in other property, and (iii)
the provisions and conditions of Subsections (a) through (d) hereof have been
complied with.
(a) Certification. The Selling Party shall deliver to the
-------------
Purchasing Party a written certification ("Certification") reflecting (i) the
name of the prospective transferee of the entire interest of the Selling Party
in the Venture; (ii) the price for which, and the terms upon which, the Selling
Party is willing to transfer and such prospective transferee is willing to buy
the entire interest of the Selling Party in the Venture (which price and terms
shall be based either upon preliminary discussions and negotiations, evidenced
in a writing signed by the prospective transferee, between the Selling Party and
such prospective transferee or upon a fully negotiated and executed purchase
agreement, a copy of which shall be furnished to the Purchasing Party); and
(iii) whether the Selling Party has any interest, financial or otherwise, in the
prospective transferee and whether, to the best knowledge of the Selling Party,
there exists any other contract or offer for the purchase of all or any portion
of the Properties or of the Selling Party's interest in the Venture. Such
Certification shall be accompanied by a request (in the form of a Notice) by the
Selling Party to the Purchasing Party to either Approve such transfer and
prospective transferee or to purchase the Selling Party's interest in the
Venture for the price and upon the terms provided in such Certification. The
Selling Party may transfer the interest of the Selling Party in the Venture only
to such prospective transferee or to the Purchasing Party. The Purchasing Party
must either approve such prospective transferee or purchase the interest of the
Selling Party in the Venture.
(b) Purchasing Party's Rights. The Purchasing Party shall have
-------------------------
the right either (i) to allow the Selling Party to transfer the interest of the
Selling Party in the Venture for a price and upon terms no more favorable to the
prospective transferee than those reflected, and to the prospective transferee
named in the Certification, or (ii) to purchase the Selling Party's entire
interest in the Venture at the price contained in the Certification and on the
other terms and conditions of the Certification. The price for which, and the
terms upon which, the Selling Party shall transfer its interest in the Venture
shall, by way of illustration and not limitation, be deemed "more favorable"
than those reflected in the Certification if (i) the
15
total actual transfer price is lower than that set forth in such Certification,
(ii) a lesser portion of the price is paid in cash at the time of the transfer
than that set forth in such Certification, or (iii) the portion of the price not
paid in cash at the time of the transfer is payable over a longer period of
time, at a lower interest rate or with lower or less frequent periodic payments
than those set forth in such Certification.
(c) Notice of Election. The Purchasing Party shall have a period
------------------
of 60 days after receipt of the Selling Party's Certification specified in
Subsection 6.4(a) hereof to serve upon the Selling Party a Notice which shall
specify whether such Purchasing Party will Approve a transfer to such
prospective transferee, or whether the Purchasing Party shall purchase the
entire interest of the Selling Party as provided in Subsection 6.4(b) hereof. If
the Purchasing Party fails to give such Notice within the allocated time, the
Purchasing Party shall be deemed to have approved the transfer of the interest
to such prospective transferee, and the Purchasing Party shall, if requested by
the Selling Party, execute, acknowledge and deliver such documents, or cause the
same to be executed, acknowledged and delivered, including without limitation,
the rights and restrictions contained in this Section 6 with respect to further
transfers. Any such new Venturer shall execute and deliver to the other
Venturers such documents as the other Venturers may reasonably request
confirming the assumption by such new Venturer of the obligations of the Selling
Party under this Agreement. At the time of closing of a transfer to a third
party transferee pursuant to this Subsection 6.4, the Purchasing Party shall
execute and deliver to the Selling Party and such transferee a written estoppel
certificate in recordable form pursuant to which the Purchasing Party shall
certify and agree that to the best of the Purchasing Party's knowledge and
belief the pending transfer is permitted pursuant to this Subsection (provided,
that to the best of the Purchasing Party's knowledge and belief such transfer
is, in fact, permitted by this Subsection). In such estoppel certificate, the
Purchasing Party shall waive any further right whatsoever to attempt to force a
rescission or setting aside of such transfer; provided, however, the Purchasing
Party shall expressly reserve any rights thereafter to pursue any action for
damages against both the Selling Party and the transferee should the Purchasing
Party thereafter determine that, contrary to the Purchasing Party's earlier best
knowledge and belief, the transfer was in fact not consummated in strict
accordance with the terms of this Section 6.
(d) Power of Attorney. In the event that either (i) the
-----------------
Purchasing Party shall have failed to respond, in the manner and within the time
required by Subsection 6.4(c) hereof, to the Selling Party's Certification
specified in Subsection 6.4(a) hereof, or (ii) the Purchasing Party shall have
served upon the Selling Party a Notice specifying that the Purchasing Party has
approved a transfer to a prospective transferee of the Selling Party as
contemplated by Subsection 6.4(c) hereof, and the Purchasing Party shall have
thereafter failed or refused, within ten days after receipt of a Notice from the
other Venturer requesting same, to execute, acknowledge and deliver such
documents, or cause the same to be done, as shall be required to effectuate a
transfer of such interest in accordance with the Certification, then, and in
either of such events, the Selling Party may execute, acknowledge and deliver
such documents for, on behalf of and in the stead of the Purchasing Party, and
such execution, acknowledgment and delivery by the Selling Party shall be for
all purposes as effective against and binding upon
16
the Purchasing Party as though such execution, acknowledgment and delivery had
been by the Purchasing Party; provided, however, that no such documents executed
by the Selling Party shall contain any undertaking on behalf of the Purchasing
Party beyond the scope of the undertakings necessary for the Selling Party to
effectuate such transfer. Each Venturer does hereby irrevocably constitute and
appoint each other Venturer as the true and lawful attorney in fact of such
Venturer and the successors and assigns thereof, in the name, place and stead of
such Venturer or the successors or assigns thereof, as the case may be, to
execute, acknowledge and deliver such documents in the event such Venturer shall
be the Purchasing Party under the circumstances contemplated by this Subsection
6.4(d). It is expressly understood, intended and agreed by each Venturer, for
such Venturer and the successors and assigns thereof, that the grant of the
power of attorney to each other Venturer pursuant to this Subsection 6.4(d) is
coupled with an interest, is irrevocable and shall survive the death,
termination or legal incompetency of such granting Venturer, as the case may be,
or the assignment of the interest of such granting Venturer in the Venture, or
the dissolution of the Venture.
6.5 Offer from Third Party to Purchase Properties.
---------------------------------------------
(a) In the event that one or more of the Venturers receives a
bona fide offer from an unrelated third party for the sale of all or
substantially all of the Properties or last remaining Property owned by the
Venturer at the time of such offer, which offer such Venturer or Venturers wish
to accept (the "Accepting Venturer"), but the other Venturer or Venturers wish
to reject, the Venturer or Venturers not desiring to sell the Properties
pursuant to said offer (the "Dissenting Venturer") must elect within thirty (30)
days after receipt by the Dissenting Venturer of notice of said offer from the
Accepting Venturer to either (i) purchase the Accepting Venturer's entire
interest in the Venture on the same terms and conditions as the third party
offer to purchase; or (ii) consent to the sale of the Properties or last
remaining Property of the Venturer pursuant to such third party offer. The
Accepting Venturer shall deliver to the Dissenting Venturer a written notice
(the "Notice") reflecting (i) the name and address of the person or entity
desiring to purchase the Properties or last remaining Property of the Venture;
(ii) the sales price to be paid by such person or entity; and (iii) shall
include a copy of the third party offer. In the event that the Dissenting
Venturer elects to purchase the Accepting Venturer's entire interest in the
Venture, the purchase price payable for the Accepting Partner's interest in the
Venture shall be equal to the amount such Accepting Venturer would have received
if the Property or Properties had been sold to such unrelated third party in
accordance with the terms of its offer, after payment of all sales commissions
and other fees and expenses which would have been due and payable upon the sale
of said Property or Properties and the repayment of all debts of the Venture, if
any.
(b) As set forth above, the Dissenting Venturer shall have 30
days after receipt of the Notice in which to make its election. The election of
the Dissenting Venturer shall be made by written notice to the Accepting
Venturer. In the event that the Dissenting Venturer elects to purchase the
Accepting Venturer's interest in the Venture pursuant to alternative (i) above,
the Dissenting Venturer shall have an additional 30 days following the receipt
of the Notice within which to close the purchase of the Accepting Venturer's
interest in the Venture.
17
The failure of the Dissenting Venturer to either elect to purchase the Accepting
Venturer's interest in the Venture pursuant to subparagraph (a)(i) above within
30 days after the receipt by the Dissenting Venturer of the Notice, or the
failure to close the purchase of the Accepting Venturer's interest in the
Venture within the foregoing time period shall be conclusively deemed to
constitute a consent to the sale of the Properties or last remaining Property of
the Venturer pursuant to such third party offer.
(c) The closing of any purchase and sale under this Section 6.5
shall be held at the principal office of the Venturer or at such other place as
shall be mutually agreed to by the Venturers within 30 days following the
receipt by the Accepting Venturer of written notice that the Dissenting Venturer
has exercised its option to purchase the Accepting Venturer's interest in the
Venture. At the closing, an appropriate assignment of the Accepting Venturer's
interest in the Venture, with covenants against Assignor's acts, together with
such other instruments and documents as may be necessary or appropriate to
effect the transfer of the Accepting Venturer's interest in the Venture, shall
be executed and delivered. The Venturers shall also execute and deliver an
amendment to this Agreement, if appropriate. The purchase price payable to the
Accepting Venturer shall be paid at closing by wire transfer of immediately
available federal funds. Effective the date of closing, the Accepting Venturer
shall cease to be a member of the Venture, and the Accepting Venturer shall have
no further rights, duties or obligations with respect to the Venture arising out
of this Agreement. Subsequent to the closing date, the Accepting Venturer shall
have no further interest in the Venture's capital, income, profits, losses,
gains, allocations or distributions.
(d) Upon any default or breach of any provision of this Section
6.5, the nonbreaching party shall be entitled to ▇▇▇ such defaulting party and
recover damages or enforce the terms hereof by specific performance.
(e) In the event that either (i) the Dissenting Venturer shall
have failed to respond, in the manner and within the time required by Subsection
6.5(a) hereof, to the Accepting Venturer's Notice specified in Subsection 6.5(a)
hereof, or (ii) the Dissenting Venturer shall have served upon the Accepting
Venturer a notice specifying its intent to approve the transfer of the
Properties or Property, and the Dissenting Venturer shall have thereafter failed
or refused within ten (10) days after receipt of a notice from the Accepting
Venturer requesting same to execute, acknowledge and deliver such documents,
instruments and writings, or to cause the same to be done, as required to
effectuate the contemplated sale of the Properties, or (iii) the Dissenting
Venturer shall have failed to close the purchase of the Accepting Venturer's
interest in the Venture within the time period set forth in Subsection 6.5(c)
hereof, then, in such event, the Accepting Venturer may execute, acknowledge and
deliver such documents, instruments and writings for, and on behalf of, and in
the name, place and stead of, the Dissenting Venturer, and such execution,
acknowledgment and delivery by such Accepting Venturer shall be for all purposes
as effective against and binding upon the Venture and the Dissenting Venturer as
if such execution, acknowledgment and delivery had been made by the Dissenting
Venturer; provided, however, that no such documents executed by the Accepting
Venturer pursuant to the terms hereof shall contain any undertaking on behalf of
the Dissenting
18
Venturer beyond the scope of the undertaking as necessary for the Accepting
Venturer to effectuate the transfer and sale of the Properties of the Venture.
Each Venturer does hereby irrevocably constitute and appoint each other Venturer
as its true and lawful attorney-in-fact of such Venturer and its successors and
assigns, in the name, place and stead of such Venturer or its successors or
assigns, as the case may be, to execute, acknowledge and deliver any and all
such deeds, assignments, documents, instruments and writings in the event such
Venturer shall be the Dissenting Venturer under the circumstances contemplated
by this Subsection 6.5(e). It is expressly understood, intended and agreed by
each Venturer, for such Venturer and its successors and assigns, that the grant
of the power of attorney to each other Venturer pursuant to this Subsection
6.5(e) is coupled with an interest, is irrevocable and shall survive the death,
termination or legal incompetence of such granting Venturer, as the case may be,
or the assignment of the interest of such granting Venturer in the Venture, or
the dissolution of the Venture.
7. DISSOLUTION AND TERMINATION.
---------------------------
The Venture shall dissolve on December 31, 2028, or upon the
occurrence of any of the following:
(i) A decree of a court of competent jurisdiction declaring
dissolution;
(ii) Sale of all or substantially all of the assets of the Venture
and the receipt and distribution of the proceeds therefrom;
(iii) The Venture or any Venturer is adjudicated insolvent or
bankrupt;
(iv) Termination of any of the Venturers; or
(v) Unanimous consent of the Venturers.
Upon the occurrence of any of the events set forth in this Section 7, Notice
thereof shall be given to all of the Venturers by the Administrative Venturer
and the Administrative Venturer shall, as required by Subsection 2.7(b) hereof,
proceed to terminate and wind up the Venture and shall distribute the
Extraordinary Receipts (and the other assets of the Venture) resulting therefrom
in accordance with Subsection 3.3(c) hereof.
8. MISCELLANEOUS PROVISIONS.
------------------------
8.1 Notices. Notices given under this Agreement shall be in writing
-------
and shall be deemed to have been properly given or served by the deposit of such
with the United States Postal Service, or any official successor thereto,
designated as registered or certified mail, return receipt requested, bearing
adequate postage and addressed as hereinafter provided. The time period in which
a response to any such Notice must be given or any action taken with respect
thereto, however, shall commence to run from the date of receipt on the return
receipt of the
19
Notice. Rejection or other refusal to accept or the inability to deliver because
of changed address or status of which no Notice was given to the Administrative
Venturer shall be deemed to be receipt of the Notice sent. In the event that
registered or certified mail is not being accepted for prompt delivery, each
Notice may then be served by personal service addressed as hereinafter provided.
By giving to the other Venturers at least 30 days' Notice thereof, any Venturer
shall have the right from time to time during the term of this Agreement to
change his Notice address(es) and to specify as his Notice address(es) any other
address(es) within the continental United States of America. Each Notice to the
Venturers shall be sent to the addresses set forth below (unless such Notice
address is properly changed):
▇▇▇▇▇ Real Estate Fund IX, L.P.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ Real Estate Fund X, L.P.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ Real Estate Fund XI, L.P.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ Operating Partnership, L.P.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
8.2 Governing Law. This Agreement and the obligations of the
-------------
Venturers hereunder shall be interpreted, construed and enforced in accordance
with the laws of the State of Georgia, including the Georgia Uniform Partnership
Act.
8.3 Fees and Commissions. Except as may otherwise be provided
--------------------
herein, each Venturer hereby represents to each other Venturer that there are no
claims for brokerage or other commissions or finder's or other similar fees in
connection with the transactions contemplated by this Agreement insofar as such
claims shall be based on arrangements or agreements made by or on behalf of the
Venturer so representing, and each Venturer so representing hereby indemnifies
and agrees to hold harmless each other Venturer from and against all
liabilities, cost, damages and expenses from any such claims.
8.4 Waiver. No consent or waiver, express or implied, by any
------
Venturer to or of any breach or default by any other Venturer in the performance
by such other Venturer of the obligations thereof under this Agreement shall be
deemed or construed to be a consent or waiver to or of any other breach or
default in the performance by such other Venturer of the same or any other
obligations of such other Venturer under this Agreement. Failure on the part of
any Venturer to complain or any act or failure to act of any other Venturer or
to declare any
20
other Venturer in default, irrespective of how long such failure continues,
shall not constitute a waiver of such Venturer of the rights thereof under this
Agreement.
8.5 Severability. If any provision of this Agreement or the
------------
application thereof to any Entity or circumstances shall be invalid or
unenforceable to any extent, the remainder of this Agreement and the application
of such provisions to any other Entity or circumstance shall not be affected
thereby and shall be enforced to the greatest extent permitted by law.
8.6 Status Reports. Recognizing that each Venturer may find it
--------------
necessary from time to time to establish to third parties such as accountants,
banks, mortgagees or the like, the then current status of performance hereunder,
upon the written request of any other Venturer, made from time to time by
Notice, each Venturer shall furnish promptly a written statement (in recordable
form, if requested) on the status of any matter pertaining to this Agreement to
the best of the knowledge and belief of the Venturer making such statement.
8.7 Entire Agreement - Amendment. This Agreement constitutes the
----------------------------
entire agreement of the Venturers with respect to the subject matter hereof.
Neither this Agreement nor any provision hereof may be changed, waived,
discharged or terminated orally, but only by an instrument in writing signed by
the Venturer against whom enforcement of the change, waiver, discharge or
termination is sought. The execution of any amendment to this Agreement, or the
execution of any other agreement or amendment thereto, by all Venturers shall
establish that such execution was made in accordance with any applicable
requirements for Approval.
8.8 Terminology. All personal pronouns used in this Agreement,
-----------
whether used in the masculine, feminine or neuter gender, shall include all
other genders; the singular shall include the plural; and the plural shall
include the singular. Titles of Sections, Subsections and Paragraphs in this
Agreement are for convenience only, and neither limit nor amplify the provisions
of this Agreement, and all references in this Agreement to Sections, Subsections
or Paragraphs shall refer to the Section, Subsection or Paragraph of this
Agreement unless specific reference is made to another document or instrument.
8.9 Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which shall be deemed to be an original and all of which
together shall comprise but a single instrument.
8.10 Successors and Assigns. Subject to the restrictions on transfers
----------------------
and encumbrances set forth herein, this Agreement shall inure to the benefit of
and be binding upon the Venturers and their respective heirs, executors, legal
representatives, successors and assigns. Whenever in this Agreement a reference
to any Entity or Venturer is made, such reference shall be deemed to include a
reference to the heirs, executors, legal representatives, successors and assigns
of such Entity or Venturer.
21
IN WITNESS WHEREOF, the undersigned Venturers have executed this Amended
and Restated Joint Venture Agreement of The Fund IX, Fund X, Fund XI and REIT
Joint Venture under seal as of the day and year first above written.
▇▇▇▇▇ REAL ESTATE FUND IX, L.P.
A Georgia Limited Partnership
By: ▇▇▇▇▇ Partners, L.P.
A Georgia Limited Partnership
(As General Partner)
By: ▇▇▇▇▇ Capital, Inc.
A Georgia Corporation
(As General Partner)
Signed, sealed and delivered By: /s/ ▇▇▇ ▇. ▇▇▇▇▇, III
in the presence of: ------------------------------
▇▇▇ ▇. ▇▇▇▇▇, III
President
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
Unofficial Witness [Corporate Seal]
/s/ ▇▇▇▇▇ ▇. Malatista
------------------------------
Notary Public
Notary Public, Gwinnett County,
Georgia
My Commission Expires
June 24, 2000
Signed, sealed and delivered By: /s/ ▇▇▇ ▇. ▇▇▇▇▇, III
in the presence of: ------------------------------
▇▇▇ ▇. ▇▇▇▇▇, III
General Partner
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
Unofficial Witness
/s/ ▇▇▇▇▇ ▇. Malatista
------------------------------
Notary Public
Notary Public, Gwinnett County,
Georgia
My Commission Expires
June 24, 2000
22
▇▇▇▇▇ REAL ESTATE FUND X, L.P.
A Georgia Limited Partnership
By: ▇▇▇▇▇ Partners, L.P.
A Georgia Limited Partnership
(As General Partner)
By: ▇▇▇▇▇ Capital, Inc.
A Georgia Corporation
(As General Partner)
Signed, sealed and delivered By: /s/ ▇▇▇ ▇. ▇▇▇▇▇, III
in the presence of: ------------------------------
▇▇▇ ▇. ▇▇▇▇▇, III
President
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
Unofficial Witness [Corporate Seal]
/s/ ▇▇▇▇▇ ▇. Malatista
------------------------------
Notary Public
Notary Public, Gwinnett County,
Georgia
My Commission Expires
June 24, 2000
Signed, sealed and delivered By: /s/ ▇▇▇ ▇. ▇▇▇▇▇, III
in the presence of: ------------------------------
▇▇▇ ▇. ▇▇▇▇▇, III
General Partner
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
Unofficial Witness
/s/ ▇▇▇▇▇ ▇. Malatista
------------------------------
Notary Public
Notary Public, Gwinnett County,
Georgia
My Commission Expires
June 24, 2000
23
▇▇▇▇▇ REAL ESTATE FUND XI, L.P.
A Georgia Limited Partnership
By: ▇▇▇▇▇ Partners, L.P.
A Georgia Limited Partnership
(As General Partner)
By: ▇▇▇▇▇ Capital, Inc.
A Georgia Corporation
(As General Partner)
Signed, sealed and delivered By: /s/ ▇▇▇ ▇. ▇▇▇▇▇, III
in the presence of: ------------------------------
▇▇▇ ▇. ▇▇▇▇▇, III
President
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
Unofficial Witness [Corporate Seal]
/s/ ▇▇▇▇▇ ▇. Malatista
------------------------------
Notary Public
Notary Public, Gwinnett County,
Georgia
My Commission Expires
June 24, 2000
Signed, sealed and delivered By: /s/ ▇▇▇ ▇. ▇▇▇▇▇, III
in the presence of: ------------------------------
▇▇▇ ▇. ▇▇▇▇▇, III
General Partner
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
Unofficial Witness
/s/ ▇▇▇▇▇ ▇. Malatista
------------------------------
Notary Public
Notary Public, Gwinnett County,
Georgia
My Commission Expires
June 24, 2000
24
▇▇▇▇▇ OPERATING PARTNERSHIP, L.P.
A Delaware Limited Partnership
By: ▇▇▇▇▇ Real Estate Investment Trust, Inc.
A Maryland Corporation
(As General Partner)
Signed, sealed and delivered By: /s/ ▇▇▇ ▇. ▇▇▇▇▇, III
in the presence of: ------------------------------
▇▇▇ ▇. ▇▇▇▇▇, III
President
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
Unofficial Witness [Corporate Seal]
/s/ ▇▇▇▇▇ ▇. Malatista
------------------------------
Notary Public
Notary Public, Gwinnett County,
Georgia
My Commission Expires
June 24, 2000
25