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EXHIBIT 10.1
AGREEMENT OF LIMITED PARTNERSHIP
OF
BERKSHIRE INCOME REALTY-OP, L.P.
This Agreement of Limited Partnership of Berkshire Income Realty-OP,
L.P. is entered into by and between BIR GP, L.L.C., as general partner (the
"GENERAL PARTNER"), and Berkshire Income Realty, Inc., as special limited
partner (the "SPECIAL SPECIAL LIMITED PARTNER"). The General Partner and the
Special Limited Partner are hereinafter referred to collectively as the
"PARTNERS."
The Partners hereby form a limited partnership pursuant to and in
accordance with the Delaware Revised Uniform Limited Partnership Act of 6 DEL.C.
Section 17-101, ET SEQ. (the "ACT"), and hereby agree as follows:
1. NAME. The name of the limited partnership formed hereby is
Berkshire Income Realty-OP, L.P. (the "PARTNERSHIP").
2. PURPOSE. The Partnership is organized for all purposes and
may engage in all activities permitted under the Act.
3. REGISTERED OFFICE. The registered office of the Partnership
in the State of Delaware is at 1013 Centre Road, Wilmington, Delaware 19805.
4. REGISTERED AGENT. The name and address of the registered
agent of the Partnership for service of process on the Partnership in the
State of Delaware is Corporation Service Company, 1013 Centre Road,
Wilmington, Delaware 19805.
5. PARTNERS. The names and business addresses of the Partners
are as follows:
GENERAL PARTNER
BIR GP, L.L.C.
One Beacon Street
Suite 1500
Boston, Massachusetts 02108
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SPECIAL LIMITED PARTNER
Berkshire Income Realty, Inc.
One Beacon Street
Suite 1500
Boston, Massachusetts 02108
6. POWERS. The powers of the General Partner include all
powers, statutory and otherwise, possessed by general partners under the laws
of the State of Delaware.
7. TERM. The Partnership shall dissolve, and its affairs shall
be wound up, on December 31, 2052, or at such time as (a) all of the Partners
of the Partnership so agree in writing, (b) the Partnership sells or otherwise
disposes of its interest in all or substantially all of its property, (c) an
event of withdrawal of the General Partner has occurred under the Act, or (d) an
entry of a decree of judicial dissolution has occurred under Section 17-802 of
the Act.
8. CAPITAL CONTRIBUTIONS. The Partners of the Partnership
have contributed the following amounts, in cash, and no other property, to the
Partnership:
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GENERAL PARTNER
BIR GP, L.L.C., $1.00
SPECIAL LIMITED PARTNER
Berkshire Income Realty, Inc., $1.00
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9. ADDITIONAL CONTRIBUTIONS. No Partner of the Partnership is
required to make any additional capital contribution to the Partnership.
10. ALLOCATIONS OF PROFITS AND LOSSES. The Partnership's profits
and losses shall be allocated in proportion to the capital contributions of the
partners of the Partnership.
11. DISTRIBUTIONS. At the time determined by the General
Partner, but at least once during each fiscal year of the Partnership, the
General Partner shall cause the Partnership to distribute any cash held by it
which is not reasonably necessary for the operation of the Partnership. Cash
available for distribution shall be distributed to the Partners of the
Partnership in the same proportion as their then capital account balances.
12. ASSIGNMENTS. The Special Limited Partner may assign all or
part of its partnership interest in the Partnership only with the consent of the
General Partner. The Special Limited Partner has no right to grant an assignee
of its partnership interest in the Partnership the right to become a substituted
limited partner of the Partnership.
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13. WITHDRAWAL. Except as provided in the following Section 14,
no right is given to any Partner of the Partnership to withdraw from the
Partnership.
14. ADDITIONAL PARTNERS.
(a) Without the approval of the Special Limited Partner,
the General Partner may admit additional limited partners to the Partnership.
Upon the admission of additional limited partners to the Partnership, the
Special Limited Partner shall withdraw from the Partnership and shall be
entitled to receive forthwith the return of its capital contribution, without
interest or deduction.
(b) After the admission of any additional limited partners
pursuant to this Section 14, the Partnership shall continue as a limited
partnership under the Act.
(c) The admission of additional limited partners to the
Partnership pursuant to this Section 14 shall be accomplished by the amendment
of this Agreement of Limited Partnership and, if required by the Act, the filing
of an appropriate amendment of the Partnership's Certificate of Limited
Partnership in the office of the Secretary of State of the State of Delaware.
15. GOVERNING LAW. This Agreement shall be governed by, and
construed under, the laws of the State of Delaware, all rights and remedies
being governed by said laws.
16. COUNTERPARTS. This Agreement may be executed in any number
of counterparts and by the different parties hereto on separate counterparts,
each of which when so executed and delivered shall be an original, but all
of the counterparts shall together constitute one and the same instrument.
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IN WITNESS WHEREOF, the undersigned, intending to be bound hereby,
have duly executed this Agreement of Limited Partnership as of the 22nd day of
July 2002.
GENERAL PARTNER:
BIR GP, L.L.C.
By: Berkshire Income Realty, Inc.,
its managing member
By: /s/ David C. Quade
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Name: David C. Quade
Title: President
SPECIAL LIMITED PARTNER:
Berkshire Income Realty, Inc.
By: /s/ David C. Quade
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Name: David C. Quade
Title: President