1
AGREEMENT OF LIMITED PARTNERSHIP
OF
STANDARD PARKING, L.P.
THIS AGREEMENT OF LIMITED PARTNERSHIP is entered into as of January 1,
1994, by and among STANDARD PARKING CORPORATION, an Illinois corporation
("SPC"), as General Partner, and SP ASSOCIATES, an Illinois general partnership
("Associates"), as Limited Partner.
In consideration of the mutual covenants set forth in this Agreement, the
parties hereto hereby agree to form a limited partnership under the Delaware
Revised Uniform Limited Partnership Act upon the following terms and conditions:
ARTICLE I
Definitions
When used in this Agreement, the following terms have the following
meanings:
Section 1.1. Accountants. "Accountants" means Altschuler, Melvoin &
Glasser or such other firm of independent certified public accountants as shall
be engaged from time to time by the General Partner for the Partnership.
Section 1.2. Act. "Act" means the Delaware Revised Uniform Limited
Partnership Act, as amended from time to time.
Section 1.3. Affiliate. "Affiliate" means with respect to a
specified Person (a) any Person that directly or indirectly through one or more
intermediaries controls, alone or through an affiliated group, is controlled by,
or is under common control with such Person, (b) any Person that is an officer,
director, partner, or trustee of, or serves in a similar capacity with respect
to, such Person or of which such Person is an officer, director, partner, or
trustee, or with respect to which such Person serves in a similar capacity, (c)
any Person that, directly or indirectly, is the beneficial owner of 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 10% or more of any class of equity securities or in
which the specified Person has a substantial beneficial interest, or (d) any
spouse, child, or parent of the specified Person. Notwithstanding the foregoing,
a Limited Partner shall not be deemed to be an Affiliate of the Partnership
solely as a result of being a Limited Partner.
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Section 1.4. Agreement. "Agreement" means this Agreement of Limited
Partnership, as amended or otherwise modified from time to time.
Section 1.5. Assignee. "Assignee" means a person to whom an Interest
has been assigned in accordance with the provisions of this Agreement but who
has not been admitted as a Substitute Partner.
Section 1.6. Associates' Representative. "Associates'
Representative" shall have the meaning set forth in Section 8.5.
Section 1.7. Bankruptcy. "Bankruptcy" means, with respect to a
Person: (i) the commencement against such Person of proceedings for any relief
under any bankruptcy or insolvency law, or any law relating to the relief of
debtors, readjustment of indebtedness, reorganization, arrangement, composition,
or extension of debts, provided such proceedings shall not have been dismissed,
nullified, stayed, or otherwise rendered ineffective (but only so long as such
stay shall continue in force) within 90 days after the commencement of such
proceedings; (ii) the commencement by such Person of proceedings for any relief
under any bankruptcy or insolvency law, or any law relating to the relief of
debtors, readjustment of indebtedness, reorganization, arrangement, composition,
or extension of debts; (iii) a decree or order of a court having jurisdiction in
the premises for the appointment of a receiver, liquidator, or trustee or
assignee in bankruptcy or insolvency of such Person or of a substantial part of
such Person's property, or for the winding up or liquidation of its affairs,
which decree or order remains in force undischarged and unstayed for a period of
90 days; or (iv) a general assignment by such Person for the benefit of
creditors or the admission by such Person in writing of its inability to pay its
debts generally as they become due.
Section 1.8. Capital Account. "Capital Account" means, with respect
to a Partner, the sum of the Partner's Class A Capital Account, Class B Capital
Account, Class C Capital Account, and Class D Capital Account.
Section 1.9. Capital Contribution. "Capital Contribution" means,
with respect to any Partner, the amount of cash and the initial Gross Asset
Value of property other than cash (less any indebtedness assumed by the
Partnership in connection with such Capital Contribution, or to which such
contributed property is subject) which has been contributed to the Partnership
by such Partner (or, in the case of an Assignee or Substitute Partner, by any
prior holder of the Interest held by such Assignee or Substitute Partner).
Section 1.10. Capitalized Lease. "Capitalized Lease" means any lease
which is or should be capitalized on the balance sheet of the lessee in
accordance with GAAP.
Section 1.11. Capital Transaction. "Capital Transaction" means (a) a
sale, exchange, or other disposition of all or substantially all of the
Partnership Property for
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value (including an involuntary conversion by condemnation, casualty, or
otherwise), (b) the incurrence by the Partnership of indebtedness for borrowed
money or (c) the refinancing of any existing or replacement indebtedness for
borrowed money, or any part thereof.
Section 1.12. Capital Transaction Proceeds. "Capital Transaction
Proceeds" means any and all cash proceeds received by the Partnership from a
Capital Transaction, reduced by (i) expenses incurred by the Partnership in
connection with such Capital Transaction, (ii) liabilities of the Partnership
which are repaid out of the proceeds from such Capital Transaction, (iii) such
reserves as the General Partner may reasonably determine for contingent
liabilities, and (iv) amounts applied for other Partnership purposes in
accordance with this Agreement.
Section 1.13. Certificate. "Certificate" means the Certificate of
Limited Partnership filed on behalf of the Partnership in the State of Delaware,
as amended from time to time.
Section 1.14. Class A Capital Account. "Class A Capital Account"
means the Capital Account maintained under Section 3.4 with respect to a Class A
Interest.
Section 1.15. Class A Cumulative Unpaid Preference. "Class A
Cumulative Unpaid Preference" shall have the meaning set forth in Section
3.3(b).
Section 1.16. Class A Partner. "Class A Partner" means the holder of
a Class A Interest in its capacity as such.
Section 1.17. Class A Preferred Return. "Class A Preferred Return"
shall have the meaning set forth in Section 3.3(b).
Section 1.18. Class A Unrecovered Capital. "Class A Unrecovered
Capital" means, with respect to any Class A Partner as of any date, the initial
Class A Unrecovered Capital, as set forth in Section 3.3(b), reduced by the
amount of any distributions received by such Class A Partner under Section
5.2(a) as of such date.
Section 1.19. Class B Capital Account. "Class B Capital Account"
means the Capital Account maintained under Section 3.4 with respect to a Class B
Interest.
Section 1.20. Class B Cumulative Unpald Preference. "Class B
Cumulative Unpaid Preference" shall have the meaning set forth in Section
3.3(c).
Section 1.21. Class B Partner. "Class B Partner" means the holder of
a Class B Interest in its capacity as such.
Section 1.22. Class B Preferred Return. "Class B Preferred Return"
shall have the meaning set forth in Section 3.3(c).
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Section 1.23. Class B Unrecovered Capital. "Class B Unrecovered
Capital" means, with respect to any Class B Partner as of any date, the initial
Class B Unrecovered Capital, as set forth in Section 3.3(c), and decreased by
the amount of any distributions received under Section 5.2(b) as of such date.
Section 1.24. Class C Capital Account. "Class C Capital Account"
means the Capital Account maintained under Section 3.4 with respect to a Class C
Interest.
Section 1.25. Class C Cumulative Unpaid Preference. "Class C
Cumulative Unpaid Preference" shall have the meaning set forth in Section
3.3(d).
Section 1.26. Class C Partner. "Class C Partner means the holder of
a Class C Interest in its capacity as such.
Section 1.27. Class C Preferred Return. "Class C Preferred Return"
shall have the meaning set forth in Section 3.3(d).
Section 1.28. Class C Unrecovered Capital. "Class C Unrecovered
Capital" means, with respect to any Class C Partner as of any date, the initial
Class C Unrecovered Capital, as set forth in Section 3.3(d), decreased by the
amount of any distributions received under Section 5.2(c) as of such date.
Section 1.29. Class D Capital Account. "Class D Capital Account"
means the Capital Account maintained under Section 3.4 with respect to a Class D
Interest.
Section 1.30. Class D Partner. "Class D Partner" means the holder of
a Class D Interest in its capacity as such.
Section 1.31. Code. "Code" means the Internal Revenue Code of 1986,
as amended from time to time, or any successor thereto.
Section 1.32. Contingent Liability. "Contingent Liability" means any
agreement, undertaking, or arrangement by which any Person guarantees, endorses
or otherwise becomes or is contingently liable upon (by direct or indirect
agreement, contingent or otherwise, to provide funds for payment, to supply
funds to, or otherwise to invest in, a debtor, or otherwise to assure a creditor
against loss) the indebtedness, obligation or any other liability of any other
Person (other than by endorsements of instruments in the course of collection),
or guarantees the payment of dividends or other distributions upon the shares of
any other Person. The amount of any Person's obligation under any Contingent
Liability shall (subject to any limitation set forth therein) be deemed to be
the outstanding principal amount (or maximum principal amount, if larger) of the
debt, obligation or other liability guaranteed thereby.
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Section 1.33. CPI. "CPI" means the Consumer Price Index for All
Urban Consumers (All Items and Commodity Groups - Chicago Area Only). If the CPI
shall become unavailable to the public because publication is discontinued or
otherwise, the General Partner shall substitute therefore a comparable index
based upon changes in the cost of living or purchasing power of the consumer
dollar published by any other governmental agency.
Section 1.34. Depreciation. "Depreciation" means, for each fiscal
year, an amount equal to the depreciation, amortization, or other cost recovery
deduction allowable with respect to an asset for such fiscal year, except that
if the Gross Asset Value of an asset differs from its adjusted basis for federal
income tax purposes at the beginning of such fiscal year, Depreciation shall be
an amount which bears the same ratio to such beginning Gross Asset Value as the
federal income tax depreciation, amortization, or other cost recovery deduction
for such fiscal year bears to such beginning adjusted tax basis; provided,
however, that if the adjusted basis for federal income tax purposes of an asset
at the beginning of such fiscal year is zero, Depreciation shall be determined
with reference to such beginning Gross Asset Value using any reasonable method
selected by the General Partner.
Section 1.35. Disability. "Disability" means, with respect to any
Person on any date, (i) a state or condition of incapacity or, through illness,
age or similar cause, an inability to give reasoned consideration to business or
financial matters, from which state or condition such Person is not expected to
recover for a period of not less than 12 months, as certified to the Partnership
by a physician reasonably acceptable to SPC and Associates, or (ii) a failure by
such person to work on a full business time basis for a period of 12 consecutive
months by reason of incapacity, illness, age, or similar cause.
Section 1.36. Distributable Cash. "Distributable Cash" means, with
respect to any fiscal period taken into account under this Agreement: (i) all
cash received by the Partnership from all sources during the period (excluding
Capital Contributions and Capital Transaction Proceeds); minus (ii) all
expenditures paid by the Partnership during the period, including (but not
limited to) repayment of principal on Partnership loans; minus (iii) such
additions to the Partnership's reserves as the General Partner may reasonably
deem necessary for anticipated working capital and capital investment
requirements of the Partnership; plus (iv) such additional cash (not theretofore
taken into account) as the General Partner may reasonably determine to be
available for distribution to the Partners, including amounts released from
reserves. Notwithstanding anything to the contrary herein, the General Partner
may not make any additions to the Partnership's reserves as of the close of any
fiscal quarter if the effect of such additions is to cause (i) the current
assets of the Partnership as of the end of such fiscal quarter (determined in
accordance with GAAP, but reduced by the amount required to be distributed under
Section 5.1 after the close of such period, taking into account such addition to
reserves) to exceed the current payables of the Partnership as of the end of
such fiscal quarter (determined in accordance with GAAP) by more than
$1,200,000. The limitation set forth in the preceding sentence (i) shall be
adjusted as of January 1 of each fiscal year (commencing January 1, 1995) by the
percentage by which the CPI reported as of the end of the
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immediately preceding fiscal year of the Partnership shall have increased from
the CPI reported as of the end of the second preceding fiscal year of the
Partnership, and (ii) may be increased further as of any time with the written
consent of Associates (which consent shall not be unreasonably withheld) if the
General Partner determines that the Partnership requires additional reserves for
working capital, capital expenditures, or expansion of the Partnership's
business. For purposes of the foregoing, the Partnership's current assets and
current liabilities as of the end of any fiscal quarter shall be (i) as
reasonably determined by the General Partner in good faith, in the case of any
fiscal quarter other than the fourth quarter and (ii) as determined by the
Accountants, in the case of the fourth quarter.
Section 1.37. Effective Date. "Effective Date" means January 1,
1994.
Section 1.38. Event of Withdrawal. "Event of Withdrawal" means with
respect to the General Partner, the cessation of its status as a General Partner
as a result of death, dissolution, Bankruptcy, incapacity, complete withdrawal,
or any other reason, other than the dissolution of the Partnership.
Section 1.39. GAAP. "GAAP" means generally accepted accounting
principles in the United States of America as in effect from time to time,
consistently applied.
Section 1.40. Garage Management Business. "Garage Management
Business" means (i) the ownership. management, leasing, or operation of
automobile garages or other parking facilities, (ii) the development or
exploitation of' or any investment in, any technology used or useful in the
Garage Management Business (including without limitation any technology in which
AVID has an interest), and (iii) the provision of parking consulting or other
parking-related services to any Person engaged in the Garage Management
Business.
Section 1.41. General Partner. "General Partner" means, as of any
particular time, any Person who has been admitted to the Partnership as, and
continues to be, a general partner of the Partnership as of such time.
Section 1.42. Gross Asset Value. "Gross Asset Value" means, with
respect to any asset, the asset's adjusted basis for federal income tax
purposes, except as follows:
(a) The initial Gross Asset Value of any asset contributed by
a Partner to the Partnership shall be the gross fair market value of such
asset, as determined in accordance with this Agreement;
(b) The Gross Asset Values of all Partnership Property shall
be adjusted to equal the respective gross fair market values of such
property, as determined by the General Partner, as of the following times:
(i) the acquisition of an additional Interest by any new or existing
Partner in exchange for more than a de minimis Capital Contribution: (ii)
the distribution by the Partnership to a Partner of more than a de mini-
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mis amount of Partnership Property as consideration for an Interest; and
(iii) the liquidation of the Partnership within the meaning ofss.
1.704-1(b)(2)(ii)(g) of the Regulations: provided, however, that
adjustments pursuant to clauses (i) and (i) above shall be made only if
the General Partner reasonably determines that such adjustments are
necessary or appropriate to reflect the relative economic interests of the
Partners in the Partnership;
(c) The Gross Asset Value of any Partnership Property
distributed to any Partner shall be adjusted to equal the gross fair
market value of such property on the date of distribution as determined by
the distributee and the General Partner; provided that, if the distributee
is a General Partner, the determination of the fair market value of the
distributed asset shall require the consent of all the Limited Partners;
and
(d) The Gross Asset Values of Partnership assets shall be
increased (or decreased) to reflect any adjustments to the adjusted basis
of such assets pursuant to section 734(b) or section 743(b) of the Code,
but only to the extent that such adjustments are taken into account in
determining Capital Accounts pursuant toss. 1.704-1(b)(2)(iv)(m) of the
Regulations; provided, however, that Gross Asset Values shall not be
adjusted pursuant to this subsection (d) to the extent the General Partner
determines that an adjustment pursuant to subsection (b) hereof is
necessary or appropriate in connection with a transaction that would
otherwise result in an adjustment pursuant to this subsection (d).
If the Gross Asset Value of an asset has been determined or adjusted pursuant to
paragraph (a), (b), or (d) hereof, such Gross Asset Value shall thereafter be
adjusted by the Depreciation taken into account with respect to such asset for
purposes of computing Net Profits and Net Losses.
Section 1.43. Indebtedness. "Indebtedness" means, with respect to
any Person (without duplication): (i) any obligation of such Person for borrowed
money, including, without limitation, (A) any obligation of such Person
evidenced by bonds, debentures, notes or other similar debt instruments, and (B)
any obligation for borrowed money which is non-recourse to the credit of such
Person but which is secured by a Lien on any asset of such Person; (ii) any
obligation of such Person on account of deposits or advances other than in the
ordinary course of business; (iii) any obligation of such Person for the
deferred purchase price of any property or services, except Trade Accounts
Payable; (iv) any obligation of such Person as lessee under a Capitalized Lease;
(v) any Indebtedness of another Person secured by a Lien on any asset of such
first Person, whether or not such Indebtedness is assumed by such first Person;
and (vi) any Contingent Liability of such Person in respect of any of the
foregoing. For all purposes of this Agreement, the Indebtedness of any Person
shall include
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the Indebtedness of any partnership or joint venture in which such Person is a
general partner or a joint venturer.
Section 1.44. Interest. "Interest" means the entire ownership
interest of a Partner in the Partnership at any particular time, including the
right of such Partner to any and all benefits to which a Partner may be entitled
under this Agreement and the Act, together with the obligations of such Partner
to comply with all the terms and provisions of this Agreement with which such
Partner is required to comply. Reference to a Limited Partnership or General
Partnership Interest means the Interest of a Limited Partner or General Partner,
as such. Reference to a Class A, Class B, Class C, or Class D Interest means an
Interest issued pursuant to Section 3.1(c)(i), 3.1(c)(ii), 3.2(b), or
3.1(c)(iii), respectively.
Section 1.45. Investment. "Investment" means any investment, made in
cash or by delivery of any kind of property or asset, in any Person, whether by
acquisition of shares of stock or similar interest, Indebtedness, or other
obligation or security, or by loan, advance, or capital contribution, or
otherwise.
Section 1.46. Legal Counsel. "Legal Counsel" means such legal
counsel as shall be engaged from time to time by the General Partner for the
Partnership.
Section 1.47. Lien. "Lien" means any mortgage, pledge,
hypothecation, judgment lien or similar legal process, title retention lien, or
other lien or security interest, including, without limitation, the interest of
a vendor under any conditional sale or other title retention agreement and the
interest of a lessor under any Capitalized Lease.
Section 1.48. Limited Partners. "Limited Partners" means, as of any
date, any or all of the Persons who have been admitted as, and continue to be,
limited partners of the Partnership as of such date. As of the date of this
Agreement, Associates, in its capacity as the holder of the Class C Interest,
and SPC, in its capacity as the holder of the Class A Interest, are the sole
Limited Partners of the Partnership.
Section 1.49. Liquidation Preference. "Liquidation Preference"
means, (i) with respect to the Class A Partner as of any date, the sum of the
Class A Unrecovered Capital, the Class A Cumulative Unpaid Preference, plus the
accrued but unpaid Class A Preferred Return for the fiscal year as of such date,
(ii) with respect to the Class B Partner as of any date, the sum of the Class B
Unrecovered Capital, the Class B Cumulative Unpaid Preference, plus the accrued
but unpaid Class B Preferred Return for the fiscal year as of such date, or
(iii) with respect to the Class C Partner as of any date, the sum of the Class C
Unrecovered Capital, the Class C Cumulative Unpaid Preference, plus the accrued
but unpaid Class C Preferred Return for the fiscal year as of such date.
Section 1.50. Material Adverse Effect. "Material Adverse Effect"
means a material adverse effect on:
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(i) the consolidated business, assets, financial condition or
operations of the Partnership, or SPC and Standard Auto Park, Inc. taken
as a whole, as the context requires; or
(ii) the ability of Standard Auto Park, Inc. or SPC to perform
any of its material obligations under this Agreement or under the Nominee
Agreement, the Management Agreement, or the Related Agreements (as such
terms are defined in the Partnership Formation Agreement).
Section 1.51. Net Profit; Net Loss. "Net Profit" or "Net Loss"
means, for each period taken into account under Article IV, an amount equal to
the Partnership's taxable income or taxable loss for such period, determined in
accordance with federal income tax principles, with the following adjustments:
(a) There shall be added to such taxable income or taxable
loss an amount equal to any income received by the Partnership during such
period which is wholly exempt from federal income tax (e.g., interest
income which is exempt from federal income tax under section 103 of the
Code);
(b) Any expenditures of the Partnership described in section
705(a)(2)(B) of the Code or treated as section 705(a)(2)(B) expenditures
pursuant to ss. 1.704-1(b)(2)(iv)(i) of the Regulations, and not otherwise
taken into account in computing Net Profits or Net Losses, shall be
subtracted from such taxable income or loss;
(c) In the event the Gross Asset Value of any Partnership
asset is adjusted pursuant to Section 1.42(b) or (c) of this Agreement,
the amount of such adjustment shall be taken into account as gain or loss
from the disposition of such asset for purposes of computing Net Profits
or Net Losses;
(d) Gain or loss resulting from any disposition of Partnership
Property with respect to which gain or loss is recognized for federal
income tax purposes shall be computed by reference to the Gross Asset
Value of the Partnership Property disposed of, notwithstanding that the
adjusted tax basis of such Partnership Property differs from its Gross
Asset Value;
(e) In lieu of the depreciation, amortization, and other cost
recovery deductions taken into account in computing such taxable income or
loss, there shall be taken into account Depreciation for such fiscal year
or other period; and
(f) To the extent an adjustment to the adjusted tax basis of
any Partnership asset pursuant to section 734(b) or section 743(b) of the
Code is required pursuant toss. 1.704-l(b)(2)(iv)(m)(4) of the Regulations
to be taken into account in
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determining Capital Accounts as a result of a distribution other than in
liquidation of a Partner's Interest, the amount of such adjustment shall
be treated as an item of gain (if the adjustment increases the basis of
the asset) or loss (if the adjustment decreases the basis of the asset)
from the disposition of the asset and shall be taken into account for
purposes of computing Net Profits or Net Losses.
Section 1.52. Partner. "Partner" means as of any particular time any
Person who is at such time a General Partner or a Limited Partner.
Section 1.53. Partnership. "Partnership" means the limited
partnership formed pursuant to the Certificate and this Agreement.
Section 1.54. Partnership Formation Agreement. "Partnership
Formation Agreement" means that Partnership Formation Agreement by and between
Associates and SPC relating to the Partnership, including all Exhibits thereto.
Section 1.55. Partnership Property. "Partnership Property" means any
or all property, real or personal, tangible or intangible, owned of record or
beneficially by the Partnership.
Section 1.56. Permitted Lien. "Permitted Lien" means any of the
following:
(a) Liens for current Taxes not delinquent or Taxes
being contested in good faith and by appropriate proceedings and as to
which such reserves or other appropriate provisions as may be required by
GAAP are being maintained;
(b) carriers', warehousemen's, mechanics',
materialmen's, repairmen's, and other like statutory Liens arising in the
ordinary course of business securing obligations which are not overdue for
a period of more than 90 days or which are being contested in good faith
and by appropriate proceedings and as to which such reserves or other
appropriate provisions as may be required by GAAP are being maintained;
(c) pledges or deposits in connection with workers'
compensation, unemployment insurance and other social security
legislation;
(d) deposits to secure the performance of bids, trade
contracts, leases, statutory obligations and other obligations of a like
nature incurred in the ordinary course of business; and
(e) Liens relating to Indebtedness assumed by the
Partnership in accordance with the Partnership Formation Agreement.
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Section 1.57. Person. "Person" means any natural person,
corporation, firm, limited liability company, joint venture, partnership, trust,
unincorporated organization, government, or any department or agency of
government.
Section 1.58. Regulations. "Regulations" means the regulations of
the United States Treasury Department with respect to a section of the Code,
whether in proposed, temporary, or final form, as from time to time amended, or
any successor thereto.
Section 1.59. SP Parking Associates. "SP Parking Associates" means
SP Parking Associates, an Illinois general partnership and an Affiliate of
Associates.
Section 1.60. SP Parking Option Agreement. "SP Parking Option
Agreement" means that Option Agreement between SP Parking Associates and SPC
dated as of January 1,1994.
Section 1.61. Standard Auto Park, Inc. "Standard Auto Park, Inc."
means Standard Auto Park, Inc., an Illinois corporation and an Affiliate of SPC.
Section 1.62. Standard Parking Corporation MW. "Standard Parking
Corporation MW" means Standard Parking Corporation MW, an Illinois corporation
and an Affiliate of SPC.
Section 1.63. Standard/Tremont. "Standard/Tremont" means
Standard/Tremont Parking Corporation, an Illinois corporation and an Affiliate
of SPC.
Section 1.64. Standard/Wabash. "Standard/Wabash" means
Standard/Wabash Parking Corporation, an Illinois corporation and an Affiliate of
SPC.
Section 1.65. Substitute Partner. "Substitute Partner" means a
Person to whom an Interest has been assigned and who has been admitted to the
Partnership as a General Partner ("Substitute General Partner") or Limited
Partner ("Substitute Limited Partner") in accordance with this Agreement.
Section 1.66. Taxes. "Taxes" with respect to any Person means taxes,
assessments or other governmental charges or levies imposed upon such Person,
his or its income or any of his or its properties, franchises or assets.
Section 1.67. Trade Accounts Payable. "Trade Accounts Payable" of
any Person means accounts payable (including, without limitation, professional
fees, utility bills and other like expenses) of such Person with a maturity of
not greater than 90 days incurred in the ordinary course of such Person's
business.
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ARTICLE II
Organization
Section 2.1. Formation of Partnership. The parties hereby agree to form a
limited partnership pursuant to the Act and the terms of this Agreement. Subject
to Section 7.11, SPC is the General Partner and Associates is the Limited
Partner of the Partnership. The General Partner shall promptly prepare and
arrange for the execution. filing, and recording in the appropriate public
offices of a Certificate and shall do all other things required to perfect the
formation of the Partnership as a limited partnership and to authorize the
conduct of its business in all jurisdictions where the Partnership intends to
conduct business.
Section 2.2. Name. The business of the Partnership shall be
conducted under the name "Standard Parking, L.P.," or under such other name as
the General Partner may determine; provided, however, that no such name may
contain the name of, or any trade name or trademark used by, a Limited Partner
(other than SPC) or any Affiliate of a Limited Partner (other than SPC) or any
name similar thereto.
Section 2.3. Registered Office; Principal Place of Business. The
name of the Partnership's registered agent for service of process in the State
of Delaware is The Prentice-Hall Corporation System, Inc., and the address of
the Partnership's registered office in the State of Delaware is 32 Loockerman
Square, Suite L-100, in the City of Dover, County of Kent, Delaware 19901. The
Partnership's principal place of business is 55 E. Monroe Street, Suite 3440,
Chicago, Illinois 60603. The General Partner may from time to time, upon written
notice to all the Partners, change the registered agent or registered office,
change the location of the Partnership's principal place of business, or
establish additional places of business at such locations as the General Partner
from time to time may determine.
Section 2.4. Purposes and Powers. The purposes of the Partnership
are to invest in, acquire, own, operate, and sell or otherwise dispose of the
Garage Management Business, for profit. Subject to the terms and conditions of
this Agreement, the Partnership is authorized to enter into, make, and perform
all contracts (including, but not limited to, garage leases and management
agreements), and other undertakings, and engage in all other activities and
transactions, as the General Partner may deem necessary, advisable, or
convenient for carrying out the purposes of the Partnership.
Section 2.5. Title to Partnership Property. Title to Partnership
Property may be held in the name of the Partnership or a nominee of the
Partnership (which nominee may include SPC).
Section 2.6. Term. This Agreement shall be effective and the
Partnership shall commence its existence as a limited partnership upon the
Effective Date. Unless sooner
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dissolved under Section 9.1, the Partnership shall continue in existence until
December 31, 2043.
ARTICLE III
Capital
Section 3.1. Capital Contributions of SPC.
(a) Pursuant to the Partnership Formation Agreement, as of the
Effective Date, SPC shall contribute to the capital of the Partnership its
entire right, title, and interest in and to the SPC Transferred Assets (as
defined in the Partnership Formation Agreement), and the Partnership shall
assume the Assumed SPC Liabilities (as defined in the Partnership Formation
Agreement).
(b) In addition, pursuant to the Partnership Formation Agreement, as
of the Effective Date SPC shall enter into a Nominee Agreement substantially in
the form attached as an Exhibit to the Partnership Formation Agreement pursuant
to which it shall agree to hold certain contracts described in said Nominee
Agreement as nominee in trust for the sole benefit of the Partnership.
(c) In consideration for the aforementioned Capital Contributions,
SPC shall receive and have (i) as a Limited Partner, 100% of the Class A
Interests, (ii) as the General Partner, 100% of the Class B Interests, and (iii)
as the General Partner, 100% of the Class D Interests.
(d) SPC agrees that it will, at any time and from time to time after
the Effective Date, upon the reasonable request of Associates, perform, execute,
acknowledge, and deliver all such further acts, deeds, assignments, transfers,
conveyances, and assurances as Associates may reasonably deem necessary to
confirm the Partnership's title to and interest in, or to enable the Partnership
to deal with and dispose of, any of the Partnership Properties described in
Section 3.1(a) and (b).
(e) SPC shall not be required to make any additional Capital
Contributions to the Partnership.
(f) The Partners acknowledge and agree that the aggregate Gross
Asset Value of the assets contributed by SPC to the Partnership is the sum of
(i) the book value of the SPC Transferred Assets (as defined in the Partnership
Formation Agreement) as of the Effective Date (taking into account the
adjustments required to be made after the Effective Date under Section
1.2(b)(xiii) of the Partnership Formation Agreement), plus (ii) $6,600,000. The
General Partner, in its reasonable discretion, shall determine the manner in
which such Gross Asset Value is allocated among the properties so contributed.
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Section 3.2. Capital Contributions of Associates.
(a) Pursuant to the Partnership Formation Agreement, on or before
the Effective Date Associates shall have made a Capital Contribution to the
Partnership in the amount of One Million Dollars ($1,000,000).
(b) In consideration for the aforementioned Capital Contribution,
Associates shall receive and have, as a Limited Partner, 100% of the Class C
Interests.
(c) Associates shall not have any personal liability to contribute
money to, or in respect of, the liabilities or obligations of the Partnership,
nor shall Associates be personally liable for any obligations of the
Partnership, except as otherwise provided in this Section 3.2 or in the Act.
Associates shall not be required to make any additional Capital Contributions to
the Partnership other than as set forth in Section 3.2(a) of this Agreement.
Section 3.3. Partnership, Interests.
(a) The Partnership Interests shall be divided into Class A, Class
B, Class C, and Class D Interests having the rights provided in this Section
3.3.
(b) The Class A Interest shall have an initial Class A Capital
Account and an initial Class A Unrecovered Capital in the amount of $5,600,000.
The Class A Interest shall accrue a Class A Preferred Return on a daily basis in
an amount equal to $1,380.82 per day, payable out of distributions by the
Partnership in accordance with the provisions of Section 5.1(b) and 5.2(d)(ii)
of this Agreement. To the extent that the Class A Preferred Return for any
fiscal year is not paid within 90 days after the end of such year, the amount so
unpaid shall be added to the Class A Cumulative Unpaid Preference as of the
first day of the succeeding fiscal year. The Class A Cumulative Unpaid
Preference shall initially be zero and shall be reduced by distributions
received by the Class A Partner under Section 5.1(a) and Section 5.2(d)(i) of
this Agreement, but shall not be increased by any interest factor. The holder of
the Class A Interest shall be entitled to the allocations of income, gain, loss,
and deduction provided by Article IV.
(c) The Class B Interest shall have an initial Class B Capital
Account and an initial Class B Unrecovered Capital in the amount of the sum of
(i) $1,000,000, plus (ii) the excess of the book value of the SPC Transferred
Assets (as defined in the Partnership Formation Agreement) over the book value
of the liabilities included in the Assumed SPC Liabilities (as defined in the
Partnership Formation Agreement) as of the Effective Date (taking into account
the adjustments required to be made after the Effective Date under Section
1.2(b)(xiii) of the Partnership Formation Agreement); provided, however, that
the initial Class B Capital Account and initial Class B Unrecovered Capital
shall not exceed $2,250,000. The Class B Interest shall accrue a Class B
Preferred Return on a daily basis in an amount equal to $1,808.22 per day,
payable out of distributions by the Partnership in ac-
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cordance with the provisions of Section 5.1(d) and 5.2(e)(i). To the extent that
the Class B Preferred Return for any fiscal year is not paid within 90 days
after the end of such year, the amount so unpaid shall be added to the Class B
Cumulative Unpaid Preference as of the first day of the succeeding fiscal year.
The Class B Cumulative Unpaid Preference shall initially be zero and be reduced
by distributions received by the Class B Partner under Section 5.1(c) or Section
5.2(e)(i) of this Agreement, but shall not be increased by any interest factor.
The holder of the Class B Interest shall be entitled to the allocations of
income, gain, loss, and deduction provided by Article IV.
(d) The Class C Interest shall have an initial Class C Capital
Account and an initial Class C Unrecovered Capital in an amount equal to
$1,000,000. The Class C Interest shall accrue a Class C Preferred Return on a
daily basis in an amount equal to $427.40 per day, payable out of distributions
by the Partnership in accordance with the provisions of Section 5.1(b) and
5.2(d) of this Agreement. To the extent that the Class C Preferred Return for
any fiscal year is not paid within 90 days after the end of such year, the
amount so unpaid shall be added to the Class C Cumulative Unpaid Preference as
of the first day of the succeeding fiscal year. The Class C Cumulative Unpaid
Preference shall initially be zero and shall be: (i) increased as of the last
day of any fiscal year of the Partnership by an amount equal to the sum of the
products of .115911% times the outstanding balance of the Class C Cumulative
Unpaid Preference on each day during such fiscal year; and (ii) reduced, as of
the date of any distributions received by the Class C Partner under Section
5.1(a) and Section 5.2(d)(i) of this Agreement during the fiscal year, by the
amount of such distributions. The holder of the Class C Interest shall be
entitled to the distributions described in Article V of this Agreement and the
allocations of income, gain, loss, and deduction provided by Article IV.
(e) The Class D Interest shall have an initial Class D Capital
Account in the amount of zero. The holder of the Class D Interest shall be
entitled to the distributions described in Article V and the allocations of
income, gain, loss, and deduction provided by Article IV.
Section 3.4. Capital Accounts.
(a) Separate Capital Accounts shall be maintained with respect to
the Class A, Class B, Class C, and Class D Interests of each Partner. As of any
date, the Capital Account of a Partner with respect to any class of Interests
shall equal: (i) the initial Capital Account with respect to such Interest, as
set forth in Section 3.1 or 3.2; increased by (ii) any additional Capital
Contributions of such Partner with respect to such Interest after the date of
this Agreement; increased by (iii) the cumulative amount of the Net Profits and
other items of income of the Partnership allocated to such Partner with respect
to such Interest under Article IV as of such date; decreased by (iv) the
cumulative amount of Net Losses and other items of loss or deduction allocated
to such Partner with respect to such Interest under Article IV as of such date;
and further decreased by (v) the amount of any cash and the
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Gross Asset Value of any Partnership Property distributed to such Partner with
respect to such Interest (net of any liability assumed by the Partner or to
which the distributed property is subject). If property other than cash is
distributed to one or more Partners, the value of such property shall be
restated on the books of the Partnership at its Gross Asset Value immediately
prior to such distribution and the Capital Account of each Partner shall be
restated to reflect such adjustment, determined as if the Partnership had sold
such asset for its Gross Asset Value and the resulting gain or loss had been
charged or credited to the Partners' Capital Accounts as provided in this
Agreement. Following such adjustment to the Partnership's books, the Capital
Accounts of the Partners receiving the distributions shall be adjusted to
reflect the amount of the distribution.
(b) Upon a transfer of any Interest in accordance with the terms of
this Agreement, the transferee shall succeed to the Capital Account of the
transferor in respect of the Interest acquired.
(c) In the event the Gross Asset Value of the Partnership's assets
is adjusted as provided in Section 1.42, the Capital Accounts of all Partners
shall be adjusted simultaneously to reflect the aggregate net adjustment to the
Gross Asset Value of the Partnership's assets, which shall be determined as if
the Partnership recognized Net Profit or Net Loss equal to the amount of such
aggregate net adjustment, and such Net Profit or Net Loss were allocated among
the Partners and debited or credited to their respective Capital Accounts in
accordance with this Agreement.
Section 3.5. Withdrawals; Interest. Except as expressly provided
herein, no Partner may withdraw from the Partnership or receive the return of,
or interest on, its Capital Contribution, Capital Account, or other amounts.
ARTICLE IV
Allocations
Section 4.1. Annual Allocations. As of the end of each fiscal year of the
Partnership the Net Loss or Net Profit for the year shall be determined and
allocated among the Partners in accordance with this Article IV.
Section 4.2. Allocation of Net Profit. The Net Profit for any fiscal
period shall be allocated as follows:
(i) First, 100% of such Net Profit shall be allocated to those
Partners, if any, whose Class A, Class B, Class C, or Class D Capital
Account has a negative balance, to the extent of (and in proportion to)
the amounts required to eliminate such negative Capital Account balances;
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(ii) Second, the remaining Net Profit, if any, shall be
allocated to the Class A Partner, to the extent of the amount required to
increase its Class A Capital Account balance to an amount equal to its
Class A Unrecovered Capital;
(iii) Third, the remaining Net Profit, if any, shall be
allocated to the Class B Partner, to the extent of the amount required to
increase its Class B Capital Account balance to an amount equal to its
Class B Unrecovered Capital;
(iv) Fourth, the remaining Net Profit, if any, shall be
allocated to the Class C Partner, to the extent of the amount required to
increase its Class C Capital Account balance to an amount equal to its
Class C Unrecovered Capital;
(v) Fifth, the remaining Net Profit, if any, shall be
allocated to the Class A Partner and the Class C Partner, to the extent of
(and in proportion to) the amount required (i) to increase the Class A
Capital Account balance to an amount equal to the Liquidation Preference
with respect to the Class A Interest as of such date and (ii) to increase
the Class C Capital Account balance to an amount equal to the Liquidation
Preference with respect to the Class C Interest as of such date;
(vi) Sixth, the remaining Net Profit, if any, shall be
allocated to the Class B Partner, to the extent of the amount required to
increase its Class B Capital Account balance to an amount equal to the
Liquidation Preference with respect to the Class B Interest as of such
date; and
(vii) Seventh, the remaining Net Profit, if any, shall be
allocated 50% to the Class C Partner and 50% to the Class D Partner.
Section 4.3. Allocation of Net Loss. The Net Loss for any period
shall be allocated among the Partners as follows:
(a) First, such Net Loss shall be allocated to the Class C
Partner and the Class D Partner, to the extent of (and in proportion to)
the amounts required to (i) reduce the Class D Capital Account balance to
zero and (ii) reduce the Class C Capital Account to an amount equal to its
Class C Liquidation Preference;
(b) Second, the remaining Net Loss, if any, shall be allocated
100% to the Class B Partner, until its Class B Capital Account has been
reduced to an amount equal to its Class B Unrecovered Capital;
(c) Third, the remaining Net Loss, if any, shall be allocated
to the Class A Partner and the Class C Partner, to the extent of (and in
proportion to) the amount required to (i) reduce the Class A Capital
Account to an amount equal to its Class A Unrecovered Capital and (ii)
reduce the Class C Capital Account to an amount equal to the Class C
Unrecovered Capital;
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(d) Fourth, the remaining Net Loss, if any, shall be allocated
100% to the Class C Partner, until the Class C Capital Account has been
reduced to zero;
(e) Fifth, the remaining Net Loss, if any, shall be allocated
100% to the Class B Partner, until the Class B Capital Account has been
reduced to zero;
(f) Sixth, the remaining Net Loss, if any, shall be allocated
100% to the Class A Partner, until the Class A Capital Account has been
reduced to zero; and
(g) Seventh, the remaining Net Loss, if any, shall be
allocated 50% to the Class C Partner and 50% to the Class D Partner.
Section 4.4. Compliance with Section 704(b) of the Code. The
allocations set forth in this Article IV are intended to allocate Net Profits
and Net Losses to the Partners in compliance with the requirements of section
704(b) of the Code and the Treasury Regulations promulgated thereunder. To this
end, solely for purposes of Section 4.2 and 4.3, the Capital Account with
respect to each Class of Interest shall be debited by the items described in
ss.ss. 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 promulgated under section 704(b) of
the Code. If the General Partner reasonably determines that the allocation of
Net Profits or Net Losses pursuant to the provisions of this Article IV does not
satisfy the requirements of section 704(b) of the Code or the Treasury
Regulations thereunder (including the minimum gain chargeback requirement of ss.
1.704-2 of the Treasury Regulations and the qualified income offset requirement
of ss. 1.704-1(b)(2)(d) of the Treasury Regulations), then notwithstanding
anything to the contrary contained in this Agreement, Net Profits and Net Losses
shall be allocated in such manner as the General Partner shall reasonably
determine to be required by section 704(b) of the Code and the Treasury
Regulations promulgated thereunder; provided, however, that any such change in
the allocation of Net Profits or Net Losses (or any item included therein) may
not change the manner in which distributions are required to be made under this
Agreement.
Section 4.5. Allocations Pursuant to Section 704(c) of the Code. In
accordance with section 704(c) of the Code and the Regulations thereunder,
income, gain, loss, and deduction with respect to any property contributed to
the capital of the Partnership shall, solely for tax purposes, be allocated
among the Partners so as to take account of any variation between the adjusted
basis of such property to the Partnership for federal income tax purposes and
its initial Gross Asset Value. In the event the Gross Asset Value of any
Partnership asset is adjusted pursuant to Section 1.42, subsequent allocations
of income, gain, loss, and deduction with respect to such asset shall take
account of any variation between the adjusted basis of such asset for federal
income tax purposes and its Gross Asset Value in the same manner as under
section 704(c) of the Code and the Regulations thereunder. Any elections or
other decisions relating to such allocations shall be made by the General
Partner in any manner that reasonably reflects the purpose and intention of this
Agreement. Allocations
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pursuant to this Section 4.5 are solely for purposes of federal, state, and
local taxes and shall not affect, or in any way be taken into account in
computing, any Partner's Capital Account or share of Net Profits, Net Losses,
other items, or distributions pursuant to any provision of this Agreement.
Section 4.6. Changes in Partners' Interests. If during any fiscal
period of the Partnership there is a change in any Partner's Interest as a
result of the admission of one or more Partners, the withdrawal of a Partner; or
a transfer of a Partner's Interest that does not result in the termination of
the Partnership for federal income tax purposes, the Net Profit, Net Loss or any
other item allocable to the Partners under this Article IV for the period shall
be allocated among the Partners so as to reflect their varying interests in the
Partnership during the period. In the event that the change in the interests of
the Partners results from the admission or withdrawal of a Partner, the
allocation of Net Profit, Net Loss, or any other item allocable among the
Partners under this Article IV shall be made on the basis of an interim closing
of the Partnership's books as of each date on which a Partner is admitted to or
withdraws from the Partnership. In the event that the change in the Interests of
the Partners results from a transfer of all or any portion of an Interest by a
Partner, the Net Profit, Net Loss, or any other items allocable among the
Partners under this Article IV shall be determined on a daily, monthly, or other
basis, as determined by the General Partner using any permissible method under
section 706 of the Code and the Treasury Regulations promulgated thereunder.
Section 4.7. Special Allocations Relating to Partnership-Level
Taxes. Notwithstanding anything to the contrary herein, in the event that any
state, local or other income tax imposed on the Partnership as an entity (such
as the Illinois Personal Property Tax Replacement Income Tax) is reduced by
reason of the holding of an Interest by any Partner, no part of the expense of
the Partnership for such tax shall be allocated to such Partner.
ARTICLE V
Distributions
Section 5.1. Distributions of Distributable Cash. Within 30 days after the end
of each fiscal quarter (60 days in the case of the final quarter of any fiscal
year), the General Partner shall cause the Partnership to distribute the amount
of the Partnership's Distributable Cash for the portion of the fiscal year
ending on the last day of such fiscal quarter (to the extent such Distributable
Cash has not previously been distributed). Such distributions shall be made in
the following order of priority:
(a) First, such Distributable Cash, if any, shall be
distributed to the Class A Partner and the Class C Partner, to the extent
of and in proportion to the amount required to reduce the Class A
Cumulative Unpaid Preference and the Class C Cumulative Unpaid Preference
to zero;
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(b) Second, the remaining Distributable Cash, if any, shall be
distributed to the Class A Partner and the Class C Partner, until (i) the
Class A Partner has received aggregate distributions under this subsection
(b) and Section 5.2(d)(ii) for the year equal to the Class A Preferred
Return which has accrued for the portion of the fiscal year ending on the
last day of the fiscal quarter, and (ii) the Class C Partner has received
aggregate distributions under this subsection (b) and Section 5.2(d) (ii)
for the year equal to the Class C Preferred Return which has accrued for
the portion of the fiscal year ending on the last day of the fiscal
quarter, in proportion to the amounts described in (i) and (ii);
(c) Third, the remaining Distributable Cash, if any, shall be
distributed to the Class B Partner until the Class B Cumulative Unpaid
Preference of such Partner has been reduced to zero; and
(d) Fourth, the remaining Distributable Cash, if any, shall be
distributed to the Class B Partner, until the Class B Partner has received
aggregate distributions under this subsection (d) and Section 5.2(e)(ii)
for the year equal to the Class B Preferred Return which has accrued for
the portion of the fiscal year ending on the last day of the fiscal
quarter;
(e) [Fifth, the General Partner shall cause any remaining
Distributable Cash to be distributed 50% to the Class C Partner and 50% to
the Class D Partner; provided, however, that the General Partner may, for
purposes of determining the amount to be distributed under this subsection
(e) with respect to the first three fiscal quarters of any fiscal year,
establish a reasonable reserve for future distributions required under
subsections (a) through (d) of this Section 5.1 for such fiscal year, but
only if the General Partner reasonably believes that there will not be
enough Distributable Cash in future quarters of such fiscal year to make
future distributions of the amounts required to be distributed under
paragraphs (a) through (d) of this Section 5.1 for the year.
Section 5.2. Distributions of Capital Transaction Proceeds. As soon
as reasonably practicable after the completion of a Capital Transaction, the
General Partner shall cause the Partnership to distribute the Partnership's
Capital Transaction Proceeds attributable to such Capital Transaction. Such
Capital Transaction Proceeds shall be distributed in the following order of
priority:
(a) First, such Capital Transaction Proceeds, if any, shall be
distributed 100% to the Class A Partner until its Class A Unrecovered
Capital has been reduced to zero;
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(b) Second, the remaining Capital Transaction Proceeds, if
any, shall be distributed 100% to the Class B Partner until its Class B
Unrecovered Capital has been reduced to zero;
(c) Third, the remaining Capital Transaction Proceeds, if any,
shall be distributed 100% to the Class C Partner until its Class C
Unrecovered Capital has been reduced to zero;
(d) Fourth, the remaining Capital Transaction Proceeds, if
any, shall be distributed to the Class A Partner and the Class C Partner
(i) to the extent of (and in proportion to) the amount required to reduce
the Class A Cumulative Unpaid Preference and the Class C Cumulative Unpaid
Preference to zero, and (ii) then, to the extent of (and in proportion to)
the amount of any unpaid Class A Preferred Return and unpaid Class C
Preferred Return which has accrued as of the date of the distribution;
(e) Fifth, the remaining Capital Transaction Proceeds, if any,
shall be distributed to the Class B Partner (i) in the amount required to
reduce the Class B Cumulative Unpaid Preference to zero, and (ii) then in
the amount of any unpaid Class B Preferred Return which has accrued as of
the date of the distribution; and
(f) Sixth, the remaining Capital Transaction Proceeds, if any,
shall be distributed 50% to the Class C Partner and 50% to the Class D
Partner.
Section 5.3. Treatment of Taxes Withheld; Distributions With Respect
to Certain State and Local Taxes. All amounts withheld or paid by the
Partnership pursuant to the Code or any provision of any state or local tax law
with respect to any payment, distribution, or allocation to the Partners shall
be treated as amounts distributed to such Partners pursuant to this Article V
and shall be debited to their respective Capital Accounts accordingly.
Notwithstanding anything to the contrary herein, in the event that any state,
local or other income tax imposed on the Partnership as an entity (such as the
Illinois Personal Property Tax Replacement Income Tax) for any fiscal year is
reduced by reason of the holding of an Interest by any Partner, an amount equal
to the reduction attributable to such Partner shall be distributed to such
Partner within 60 days after the end of the fiscal year.
Section 5.4. Distributions of Certain Proceeds. The parties agree
that notwithstanding any provision of this Agreement, proceeds from a loan or
refinancing of existing indebtedness or from a sale of a material portion of the
Garage Management Business (other than a Capital Transaction) may not be
distributed to the Partners under Section 5.2 or any other provision of this
Agreement, until the Partners have agreed on appropriate adjustments to
distributions, including distributions in respect of the respective Class A,
Class B, and Class C Preferred Returns.
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ARTICLE VI
Fiscal Matters
Section 6.1. Records and Accounting.
(a) The General Partner shall keep a list of the names and addresses
of the Limited Partners and complete and accurate records and books of account
of the business of the Partnership at the Partnership's principal office. Each
Partner or its duly authorized representative shall have the right to inspect
the books and records of the Partnership (including, without limitation,
management agreements, leases, and other agreements, budgets (in the aggregate
and property-by-property), computer data, insurance contracts, employment
agreements, union contracts, nonaggregate financial data, and all other
information reasonably necessary to keep each Partner reasonably informed of the
Partnership's business) upon reasonable notice at all reasonable times during
normal business hours and to meet with the President and, with the consent of
SPC (which consent will not be unreasonably withheld). key executive officers of
SPC regarding the same. Associates hereby agrees that any such inspection or
meeting on its behalf will be made by one or more Associates' Representative or
by a person or persons selected by any Associates' Representative and reasonably
approved by the General Partner. In addition to the foregoing, SPC shall make
available to Associates' Representatives such non-aggregate and
property-by-property financial information and records regarding garages and
other parking facilities which are permitted to be managed, leased, or operated
by SPC or its Affiliates under Section 7.3(b) or Section 7.3(c) as Associates
shall reasonably request.
(b) The General Partner shall maintain the Partnership's books (i)
in accordance with the provisions of this Agreement and (ii) on the basis of a
calendar year (unless the Partnership is required under the Code to maintain a
different fiscal year).
Section 6.2. Financial Reports.
(a) Within 45 days after the end of each fiscal quarter (other than
the last quarter of the fiscal year), the General Partner shall cause to be
delivered to each Partner consolidated financial statements containing (i) an
unaudited balance sheet as of the end of the quarter and (ii) unaudited
statements of earnings and cash flow of the Partnership for the fiscal quarter
and for the period commencing at the end of the previous fiscal year and ending
with the end of such fiscal quarter, all of which shall be prepared in
accordance with GAAP (subject to year-end adjustments and the absence of
footnotes).
(b) Within 90 days after the close of the Partnership's fiscal year,
the General Partner will cause to be delivered to each Partner consolidated and
consolidating financial statements containing an unaudited balance sheet as of
the end of such fiscal year and unaudited statements of earnings and cash flow
for such fiscal year, all of which shall be
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prepared in accordance with GAAP. If any Limited Partner delivers to the General
Partner a written request for audited financial statements with respect to any
fiscal year on or before the 60th day before the end of such fiscal year, the
General Partner shall, at the Partnership's expense, cause audited statements
for such fiscal year to be prepared by the Accountants and delivered to the
Limited Partners not later than 90 days after the end of such fiscal year.
(c) The General Partner shall cause financial reports required to be
delivered hereunder to be in such form as is reasonably acceptable to Associates
and SPC.
Section 6.3. Tax Returns.
(a) The General Partner shall cause federal, state, and local income
tax returns for the Partnership to be prepared and timely filed with the
appropriate authorities as soon as reasonably practicable after the close of the
Partnership's taxable year. The General Partner may make such tax elections in
its sole discretion regarding depreciation methods and recovery periods, basis
adjustments, and any other federal, state, or local income tax election,
including, without limitation, the election referred to in section 754 of the
Code; provided, however, that if Associates requests in writing delivered to the
Partnership that the Partnership make an election under section 754 of the Code,
the General Partner shall cause the Partnership to make said election; and
provided further that any Partner who transfers all or any part of its Interest
shall bear all expenses arising as a result of the Partnership's election under
section 754 of the Code as it relates to the Interest so transferred. Each
Partner will, upon request, supply the information necessary to properly give
effect to such election.
(b) As soon as practicable after the close of each taxable year but
in no event later than ten (10) days after the filing of the Partnership's
federal income tax return, the General Partner shall cause to be delivered to
each Person who was a Partner during the fiscal year such tax information and
schedules as shall be necessary for the preparation by such Person of its income
tax returns, and such other tax returns and information as may be required in
various jurisdictions in which the Partnership is formed or qualified by the
nature of the Partnership's business.
Section 6.4. Partnership Funds. Pending use in the business of the
Partnership or distribution to the Partners, Partnership funds shall be
deposited in such bank account or accounts, or invested in such interest-bearing
taxable or nontaxable investments as the General Partner in its sole discretion
determines. Partnership funds shall not be commingled with funds of any other
person. Withdrawals from Partnership accounts or investments shall be made upon
such signatures as the General Partner may designate.
Section 6.5. Insurance. The Partnership shall maintain insurance on
the Partnership Properties and with respect to the Garage Management Business of
such types used in such activity as is consistent with insurance customarily
maintained by companies similarly situated. Any insurance maintained by the
Partnership with respect to Partnership
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Properties and with respect to the Garage Management Business shall name
Associates (and SP Parking Associates, if it exercises its rights under the SP
Parking Option Agreement) as an additional insured (and shall identify its
status as a limited partner of the Partnership) and shall provide at least 30
days prior notice of change (other than an increase in coverage), cancellation,
or non-renewal to Associates (and, if applicable, to SP Parking Associates).
ARTICLE VII
Rights, Powers, and Duties
of the General Partner
Section 7.1. Management Authority.
(a) Except as provided in Section 7.2, the General Partner shall
have (i) the exclusive right and authority to manage and control the business of
the Partnership and (ii) the authority and power on behalf and in the name of
the Partnership to perform all acts and enter into and perform all contracts and
other undertakings which it may deem necessary, advisable, or incidental to the
purposes of the Partnership set forth in Section 2.4. All decisions made for or
on behalf of the Partnership by the General Partner in accordance with this
Agreement shall be binding upon the Partnership.
(b) No Person dealing with the General Partner shall be required to
determine its authority to take any action on behalf of the Partnership or any
facts or circumstances bearing upon the existence of such authority. Any Person
dealing with the Partnership or the General Partner may rely upon a certificate
signed by the General Partner, thereunto duly authorized, as to (i) the identity
of the General Partner or any Limited Partner; (ii) the existence or
non-existence of any fact or facts which constitute a condition precedent to
acts by the General Partner or in any other manner germane to the affairs of the
Partnership or (iii) the identity of Persons who are authorized to execute and
deliver any instrument or document of or on behalf of the Partnership.
Section 7.2. Certain Limitations on the General Partner's Authority.
(a) Notwithstanding anything to the contrary in this Agreement, the
General Partner may not take (or cause the Partnership to take) any of the
following actions without the written consent of all the Limited Partners:
(i) Borrow any money or incur any Indebtedness (other than
Trade Accounts Payables or Indebtedness incurred in connection with
Permitted Liens) in excess of $250,000 in any fiscal year of the
Partnership;
(ii) Enter into or permit to exist any arrangements for the
leasing by the Partnership, as lessee, of any real or personal property
(or any interest therein) un-
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der any lease which (A) has a term in excess of 10 years or (B) provides
for base rent in excess of $500,000 per year;
(iii) Enter into any agreement (including any management
agreement, but excluding any lease), if such agreement (A) has a term in
excess of 10 years or (B) obligates the Partnership to pay more than
$400,000 per year to or for the benefit of the other party to such
agreement (or any Affiliate thereof);
(iv) Sell, transfer, convey, lease, or otherwise dispose of,
or grant options, warrants, or other rights with respect to, Partnership
Property (other than sales or other dispositions of obsolete assets or
assets being replaced in the ordinary course of business), except to the
extent that such sale, transfer, conveyance, or lease does not cause the
aggregate sale prices of all such transactions during the year to exceed
$150,000;
(v) Purchase or otherwise acquire (including, without
limitation, acquisition by way of Capitalized Lease), or commit to
purchase or otherwise acquire, any fixed asset if, after giving effect to
such purchase or other acquisition, the aggregate cost of all fixed assets
purchased or otherwise acquired by the Partnership exceeds $350,000 per
year; make loans in excess of $350,000 in any year to secure Garage
Management Business; or make any other loan for Partnership purposes in
excess of $50,000 per year;
(vi) Issue any Interests or other equity securities in the
Partnership after the Effective Date;
(vii) Take any action which would make it impossible to carry
on the business of the Partnership;
(viii) Take any action that would subject any Limited Partner
to liability as a general partner in any jurisdiction;
(ix) Confess a judgment against the Partnership;
(x) Possess Partnership Property, or assign its rights in
specific Partnership Property, for other than a purpose of the
Partnership;
(xi) Take any action in contravention of this Agreement or the
Act;
(xii) Settle any claim or related group of claims (A) if made
against the Partnership, for an amount requiring the Partnership to pay
$250,000 or more in excess of insurance proceeds available to the
Partnership to satisfy such claim or claims or (B) if made by the
Partnership, if such claim or claims are for an amount of $250,000 or
more; or
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(xiii) File a voluntary petition of bankruptcy, make an
assignment for the benefit of creditors, admit in writing the inability to
pay debts as they mature, or otherwise invoke general laws for the
protection for debtors.
All dollar figures set forth in this subsection (a) shall be increased as of
January 1 of each fiscal year (commencing January 1, 1995) by the percentage by
which the CPI reported as of the end of the immediately preceding fiscal year of
the Partnership shall have increased from the CPI reported as of the end of the
second preceding fiscal year of the Partnership.
(b) If the General Partner proposes to cause the Partnership to take
any of the actions described in paragraphs (i) through (vi) or (xii) of
subsection (a) hereof, it shall deliver written notice of such proposed action
(with reasonable details of the terms and conditions) to the Limited Partners
not later than 30 days prior to taking such action; provided, however, that if
circumstances not within the control of the General Partner prevents the General
Partner from providing 30 days' advance notice, then the General Partner shall
provide such advance written notice as is reasonably practicable under the
circumstances (but not less than 24 hours). If any Limited Partner fails to
object in writing to such action within 30 days after delivery of said notice by
the General Partner (or prior to the date on which such action is proposed to be
taken if fewer than 30 days' notice is provided in accordance with the previous
sentence), such Limited Partner shall be conclusively deemed to have granted its
consent to such proposed action.
(c) The Partners hereby expressly authorize the Partnership to enter
into a management agreement with Standard Auto Park, Inc. substantially in the
form prescribed by the Partnership Formation Agreement which may not be amended
without the consent of Associates.
Section 7.3. Certain Rights and Obligations of SPC and Affiliates.
(a) Except as expressly permitted by this Agreement or approved by
all the Limited Partners, during the term of this Agreement, SPC shall not,
except through the Partnership, (i) own, lease, manage, or operate, or permit
any of its Affiliates (including Myron C. Warshauer) to own, lease, manage, or
operate, any parking garage or other parking facility, (ii) invest in, own, or
otherwise participate in, or permit any of its Affiliates (including Myron C.
Warshauer) to invest in, own, or otherwise participate in, the development or
exploitation of any technology used or useful in the Garage Management Business
(including without limitation any technology in which AVID has an interest), or
(iii) otherwise engage in, invest in, or consult with respect to, or permit any
of its Affiliates (including Myron C. Warshauer) to engage in, invest in, or
consult with respect to, the Garage Management Business.
(b) Notwithstanding the provisions of subsection (a), Myron C.
Warshauer, SPC, Standard Parking Corporation MW, or any other Affiliate of SPC
owned 100%
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by Myron C. Warshauer may lease, operate, or manage (and receive all income,
profits, management fees, and other compensation of every kind and description
from such lease, operation, or management of) the Excluded Garages (as defined
below), but only so long as such garages or parking facilities constitute
Excluded Garages. Notwithstanding the foregoing, SPC may not lease, operate, or
manage (or receive any income, profits, management fees, or other compensation
of any kind or description from such lease, operation, or management of) any of
the Excluded Garages described in clause (y) below. If at any time Associates
delivers written notice to SPC to the effect that a garage or parking facility
that previously was an Excluded Garage is no longer defined as such, SPC shall
use reasonable best efforts to arrange for the Partnership to acquire the right
to manage, operate, or lease (and receive all income, profits, management fees,
and other compensation of every kind and description from such lease, operation,
or management of) such garage or parking facility as soon as practicable
thereafter. For purposes of this Agreement, the term "Excluded Garage" means any
garage or other parking facility with respect to which neither the Partnership
nor Standard Auto Park, Inc. could own, operate, manage, or lease without
causing Associates or any of its Affiliates (x) to be in breach of any contracts
to which they are parties or of any fiduciary or statutory obligations or (y) to
be a party in interest (within the meaning of ERISA) to such arrangement which
would be inconsistent with the fiduciary or statutory obligations of such
Affiliates. As of the date of this Agreement, the garages or other parking
facilities that currently constitute Excluded Garages are listed on Exhibit A.
(c) Subject to Section 7.5 and notwithstanding the provisions of
subsection (a):
(i) SPC or any of its Affiliates may continue to own, directly
or indirectly through a partnership or other entity, an interest in all of
the parking facilities listed in Exhibit B;
(ii) The Partnership, rather than SPC, shall manage the
parking facilities listed in paragraphs A and B of Exhibit B;
(iii) The management of the parking facilities listed in
paragraph C of Exhibit B shall be provided by Standard/Tremont (in the
case of the Theatre District Self Park), and by Standard/Wabash (in the
case of the Adams Wabash Self Park);
(iv) All compensation (whether in the form of management fees
or otherwise) payable by reason of the management of the parking
facilities listed in paragraph A of Exhibit B shall be paid to the
Partnership;
(v) The Partnership shall not receive any compensation of any
kind by reason of the management of the parking facility listed in
paragraph B of Exhibit B
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so long as Myron C. Warshauer or any of his Affiliates owns an interest in
such facility; and
(vi) All compensation (whether in the form of management fees
or otherwise) payable by reason of the management of the parking
facilities listed in paragraph C of Exhibit B shall be paid solely to
Standard/Tremont (in the case of the Theatre District Self Park) or
Standard/Wabash (in the case of the Adams Wabash Self Park), it being
acknowledged that the Partnership has no right to participate in such
compensation to any extent whatsoever.
(d) Nothing herein shall be construed as prohibiting SPC or any
Affiliate thereof from: (i) making any Investments or conducting any business
(other than a business or Investment which SPC or such Affiliate is prohibited
from conducting under subsection (a) hereof); (ii) making any Investment in
publicly-trade debt or equity securities of any issuer which is directly or
indirectly (through its Affiliates) engaged in the Garage Management Business,
so long as the aggregate amount of such securities held by SPC and its
Affiliates does not exceed 5% of the outstanding securities of the same class of
securities of the issuer and neither SPC nor any of its Affiliates is otherwise
in control of such issuer; or (iii) transacting business with anyone transacting
business with the Partnership; provided, however, that SPC shall not make or
permit to exist any Investment in any Person, except for (x) stocks, bonds, and
other Investments that put at risk not more than the principal amount of such
Investment and (y) other Investments outstanding on the Effective Date and
listed on Exhibit D. Notwithstanding anything else which is or might be implied
to the contrary, there shall be no such limitation on cash or Investments that
are replacements for SPC's interest in Sidcor (as defined in the Partnership
Formation Agreement), provided that, in connection herewith, SPC may not (A)
become a general partner or joint venturer (other than with respect to Sidcor),
(B) make any Investment that puts at risk more than the principal amount of such
Investment, nor (C) make any Investment which would reasonably be expected to
have a Material Adverse Effect. If the activities or Investments conducted or
held by SPC (other than activities conducted by SPC on behalf of the Partnership
in its capacity as General Partner) result in claims against the Partnership or
Associates or its Affiliates, SPC shall indemnify and hold harmless each such
Person for the amount of damage, loss, or expense suffered by such Person as a
result of such claims; and provided further that, to the extent that assets of
SPC (other than its Interest in the Partnership) are insufficient to pay the
indemnification required by this subsection (d), such indemnification shall be
payable solely out of distributions received by SPC from the Partnership or
proceeds received by SPC from any disposition of any portion of its Class B
Interest or Class D Interest; provided, however, that neither Associates nor any
of its Affiliates may initiate any action for purposes of seeking the
disposition of all or any portion of SPC's Interests in satisfaction of any
claim for indemnification hereunder. The right of Associates or any Affiliate
thereof to receive indemnification hereunder shall be such Person's sole
recourse, and in lieu of any and all other rights or remedies, for any damage,
loss, or expense suffered by such Person as a result of activities permitted by
this Agreement to be conducted by SPC outside of the Partnership.
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Section 7.4. Employees; Compensation; Life Insurance.
(a) The General Partner is authorized to offer employment to the
employees of SPC who are involved in the Garage Management Business. The wages,
salaries, and benefits of such employees shall be determined by the General
Partner. No employee, other than as listed on Exhibit C, shall have any
participation in the revenues or profits of the Partnership, and the Partnership
has not entered into, and may not enter into, any oral or written agreement with
any employee which confers on such employee any right to participate in the
capital or appreciation in the value of the Partnership.
(b) The Partnership is hereby authorized to enter into oral or
written employment agreements with Myron C. Warshauer (the "President") and
Sidney Warshauer (the "Chairman"), pursuant to which such individuals shall have
such duties as the General Partner may determine. Such employment agreements
shall provide that (i) Myron C. Warshauer shall devote his full business time
and attention to the business and affairs of the Partnership until at least age
65 (provided that if he retires prior to age 65, the sole remedies shall be that
Associates may become General Partner under Section 7.11 of this Agreement, and
the employment agreements of the President and Chairman shall be terminated, as
hereinafter provided); and (ii) Sidney Warshauer shall devote such time and
attention to Partnership matters as the General Partner determines in its sole
and absolute discretion to be necessary to the management of the Partnership's
business and affairs. Notwithstanding the foregoing, nothing herein shall be
construed to prevent Myron or Sidney Warshauer from devoting time and attention
to charitable and civic activities, personal investment activities, or the
management of garages and other parking facilities which Myron or Sidney
Warshauer or their respective Affiliates are permitted to manage or lease under
the terms of this Agreement. The Partnership shall pay the Chairman and
President salaries in the aggregate amount of $575,000 per annum, which shall be
increased as of January 1 of each year (commencing January 1, 1995) by the
percentage by which the CPI reported as of the end of the immediately preceding
fiscal year of the Partnership shall have increased from the CPI reported as of
the end of the second preceding fiscal year of the Partnership. Such salaries
shall be allocated between such Chairman and President as SPC shall determine in
its sole and absolute discretion. In addition, the Partnership shall provide
such benefits and perquisites to such executive officials as were provided to
the executive officials by SPC prior to the Effective Date and such other
benefits and perquisites as are reasonable and appropriate under the
circumstances. Notwithstanding anything to the contrary in this Agreement, the
obligation of the Partnership to pay the above-mentioned salaries and provide
for the above-mentioned benefits and perquisites shall: (x) survive the death of
either of the Chairman or the President, in which case the salary of the
deceased Chairman or President, as the case may be, shall be payable to the
survivor; (y) survive the Disability of either or both of the Chairman or
President, in which case the salaries shall continue to be paid as provided
hereunder; and (z) terminate upon (I) the death of both the Chairman and the
President, (II) the retirement of the President prior to age 65, or (III) the
death of the Chairman and the Disability or retirement of the President. If at
any time Associates becomes the General
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Partner of the Partnership pursuant to Section 7.11 of this Agreement, it shall
neither (A) terminate the employment agreement of the President or Chairman nor
(B) require Sidney Warshauer to devote more time and attention to the
Partnership's business and affairs in any fiscal year than was required by SPC
in any prior fiscal year.
(c) Except as otherwise provided in this Agreement, without the
advance written consent of all the Limited Partners, no Partner or any Affiliate
thereof may receive, directly or indirectly, any remuneration, compensation, or
benefit from the Partnership for the performance of services to the Partnership
or otherwise; provided, however, that nothing in this Agreement shall be
construed to prevent the Partnership from hiring Myron C. Warshauer's
descendants as employees on an arms-length basis under terms no less favorable
to the Partnership than would be available to a disinterested third party under
similar circumstances; and provided further, that if at any time Associates
becomes the General Partner of the Partnership pursuant to Section 7.11 of this
Agreement, nothing in this Agreement shall be construed to prevent the
Partnership from entering into transactions with Affiliates of JMB Realty
Corporation on an arms-length basis under terms no less favorable to the
Partnership than would be available to a disinterested third party under similar
circumstances.
(d) The Partnership shall, at its expense, procure and maintain term
insurance policies on the life of Myron C. Warshauer in the following amounts
and on the following terms:
(i) A $2 million policy, which shall be acquired and owned by
the Myron C. Warshauer Irrevocable Trust dated November 15, 1993, and held
under a split-dollar arrangement, pursuant to which the Partnership shall
be entitled to a return (out of any proceeds) of the lesser of the amount
of premiums which it pays and the cash value of the policy. The
Partnership shall enter into an irrevocable death benefit agreement with
Myron C. Warshauer (under terms substantially the same as the death
benefit agreement now in existence between Myron C. Warshauer and SPC),
pursuant to which the Partnership shall pay its share of any death benefit
under said life insurance policy (grossed up by the amount of any Taxes
payable by the Trust as a result of the receipt of said payment) to the
aforementioned Trust;
(ii) Various policies aggregating $2 million, which shall be
owned by the Partnership and which shall name as beneficiaries certain
executives who are parties to agreements to acquire portions of the
Interests of SPC as permitted under Section 7.10.
(iii) A $2 million policy, which shall be owned by the
Partnership and which shall name Associates as beneficiary.
In addition, the Partnership shall, at its expense, maintain the insurance
policies which are transferred to the Partnership by SPC pursuant to the
Partnership Formation Agreement.
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Section 7.5. Expenses. The Partnership shall be responsible for
paying all of its own expenses, including, but not limited to, wages, salaries,
and benefits of its employees (other than the Chairman or President, except to
the extent permitted by Section 7.4(b)), rent for office space, onsite managers,
utilities, telephone, supplies, legal and accounting expenses, and travel and
entertainment. The Partnership (i) shall not pay or bear any of the property
level expenses (including rent for such properties) incurred in connection with
the garages and other parking facilities permitted to be owned, leased, managed,
or operated by SPC or its Affiliates under Section 7.3(b) or Section 7.3(c) of
this Agreement, (ii) shall permit SPC, Standard Parking Corporation MW, or any
of their Affiliates to use Partnership personnel or facilities in connection
with the management, lease, or operation of garage or parking facilities which
SPC, Standard Parking Corporation MW, or any of their Affiliates is permitted to
manage, lease, or operate under Section 7.3(b), without reimbursement for
overhead expenses attributable thereto, and (iii) shall be entitled to
reimbursement for overhead expenses which are attributable to garage or parking
facilities entitled to be owned, managed, leased, or operated by SPC or its
Affiliates under Section 7.3(c) in accordance with arrangements in effect prior
to the Effective Date, as evidenced by the financial statements of SPC for the
period ended December 31,1992.
Section 7.6. Tax Matters Partner.
(a) The General Partner is hereby appointed the "Tax Matters
Partner" of the Partnership for all purposes pursuant to sections 6221-6231 of
the Code. As Tax Matters Partner, the General Partner will (i) furnish to each
Partner or Assignee affected by an audit of the Partnership income tax returns a
copy of each notice or other communication received from the Internal Revenue
Service or applicable state authority, (ii) keep each such Partner and Assignee
informed of any administrative or judicial proceeding, as required by section
6623(g) of the Code, (iii) allow each such Partner and Assignee an opportunity
to participate in all such administrative and judicial proceedings, and (iv)
take any action necessary to cause each Partner to be entitled to all notices
specified in section 6223(a) of the Code;
(b) The Tax Matters Partner has the authority to do all or any of
the following:
(i) File a petition as contemplated in section 6226(a) or 6228
of the Code;
(ii) Intervene in any action as contemplated in section
6226(b) of the Code;
(iii) File any request contemplated in section 6227(b) of the
Code; and
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(iv) With the consent of all the Limited Partners, enter into
an agreement extending the period of limitations as contemplated in
section 6229(b)(1)(B) of the Code.
The Tax Matters Partner may not litigate any federal income tax controversy in a
forum other than the U.S. Tax Court without obtaining the consent of all the
Limited Partners.
(c) The Partnership is not obligated to pay any fees or other
compensation to the Tax Matters Partner in its capacity as such. However, the
Partnership will reimburse the Tax Matters Partner for any and all out-of-pocket
costs and expenses (including attorneys' and other professional fees) reasonably
incurred by it in its capacity as Tax Matters Partner. Each Partner who elects
to participate in Partnership administrative tax proceedings will be responsible
for its own expenses incurred in connection with such participation. In
addition, the cost of any adjustments to a Partner and the cost of any resulting
audits or adjustments of a Partner's tax return will be borne solely by the
affected Partner. The Tax Matters Partner shall be entitled to rely on the
advice of Legal Counsel as to the nature and scope of its responsibilities and
authority as Tax Matters Partner, and any act or omission of the Tax Matters
Partner pursuant to such advice shall in no event subject the Tax Matters
Partner to liability to the Partnership or any Limited Partner.
Section 7.7. Limitation on Liability of General Partner For Certain
Acts or Omissions. Neither the General Partner, any Affiliate of the General
Partner, nor any officer, director, employee, or agent of the General Partner
shall be subject to any liability for damages or losses to the Partnership or to
any Partner on account of the act or omission of the General Partner, the
Affiliate, officer, director, employee or agent thereof, so long as such act or
omission was not done fraudulently or in bad faith or as a result of willful and
wanton misconduct or gross negligence.
Section 7.8. Indemnification. To the maximum extent permitted by
law, the Partnership will indemnify any Person, including the General Partner or
any officer, director, agent, employee, Affiliate, or stockholder thereof, who
was or is a party, or is threatened to be made a party, to any threatened,
pending or completed action, suit, or proceeding, whether civil, criminal,
administrative, or investigative (including any action by or in the right of the
Partnership) by reason of any acts, omissions, or alleged acts or omissions by
such Person on behalf of the Partnership, against expenses for which such Person
has not otherwise been reimbursed (including attorneys' fees, judgments, fines,
and amounts paid in settlement) actually and reasonably incurred in connection
with such action, suit, or proceeding, so long as such act or omission was not
done fraudulently or in bad faith or as a result of willful and wanton
misconduct or gross negligence or, with respect to any criminal action or
proceeding, such Person had no reasonable cause to believe his conduct was
unlawful. Expenses, including reasonable attorneys' fees, incurred by such
Person asserting a right to indemnification hereunder in defending any such
civil, criminal, administrative or investigative action, suit or proceeding may,
in the reasonable discretion of the General Partner, be
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paid by the Partnership in advance of the final disposition of such action, suit
or proceeding upon receipt of a written undertaking by or on behalf of such
Person to repay such amount to the extent it shall ultimately be determined that
such Person is not entitled to indemnification under this Section 7.8. The
General Partner and any Affiliate, officer, director, stockholder, employee, or
agent thereof shall be entitled to rely on the advice of counsel, public
accountants, or other independent experts and any act or omission of the General
Partner and any Affiliate, officer, director, stockholder, employee, or agent
thereof pursuant to such advice shall in no event subject such Person to
liability to the Partnership or any Limited Partner. The satisfaction of any
indemnification shall be from and limited to Partnership assets, and no Partner
shall have any personal liability on account thereof.
Section 7.9. Event of Withdrawal of the General Partner.
(a) Except as provided in Section 7.11, if, upon an Event of
Withdrawal with respect to a General Partner, such General Partner is the sole
General Partner of the Partnership, then the Partnership shall dissolve
immediately, unless all the Limited Partners elect in writing within 90 days
after such Event of Withdrawal to admit a successor General Partner, whose
admission shall be effective as of the date the prior General Partner ceased
being a General Partner of the Partnership. The Event of Withdrawal of the
General Partner shall not affect any rights or obligations of such General
Partner which matured prior to such Event of Withdrawal or the value, if any, of
its Interest at the time of such event.
(b) Upon an Event of Withdrawal of a General Partner and the
continuation of the business of the Partnership by a successor General Partner
pursuant to subsection (a), the successor General Partner shall have the
authority to make such amendments to this Agreement or the Certificate, and
shall cause to be executed and filed for recordation such amendments or other
documents or instruments, as in any such case are necessary or appropriate to
reflect the Event of Withdrawal with respect to the former General Partner and
the appointment of the successor General Partner. Consent to such amendments
shall be deemed to have been given by each Limited Partner by execution of this
Agreement.
Section 7.10. Restrictions on Withdrawal of General Partner or
Transfer of General Partner's Interest. Except in the case of (i) an assignment
of the Class A Interest pursuant to the SP Parking Option Agreement, (ii) an
assignment of the Class C Interest by Associates pursuant to Section 8.6 at such
time as Associates is the General Partner pursuant to Section 7.11, (iii) an
assignment of any portion of SPC's Class B Interest or Class D Interest pursuant
to an agreement between SPC and an employee, or (iv) an assignment of any
portion of SPC's Class B Interest or Class D Interest to any descendant or other
relative of Myron C. Warshauer, the General Partner may not voluntarily withdraw
from the Partnership or sell, transfer, assign, or grant a security or other
interest in, all or any part of its Interest (including its Interest as Limited
Partner), without the consent of all the Limited Partners. The parties hereto
agree that in the event that any Person acquires any portion of SPC's Interest
under the circumstances described in clause (iii) or (iv) of this Section
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7.10, such Person shall be admitted to the Partnership as a Limited Partner
without the consent of any other Partner; provided that any Person who acquires
any portion of SPC's Interest under the circumstances described in clause (iii)
or (iv) shall not be entitled to vote on or consent to any matter requiring the
vote or consent of Limited Partners under any provision of this Agreement
(including without limitation Section 7.2, but excluding Section 10.2 to the
extent any amendment referred to therein would (x) affect such Person's right to
receive distributions or share in Net Profits or Net Losses under this Agreement
or (b) subject such Person to personal liability for the debts, obligations, and
liabilities of the Partnership), and any such provision of this Agreement shall
be applied by disregarding the Interests acquired by such Persons under clause
(iii) or (iv).
Section 7.11. Death, Disability or Termination of Employment of
Myron C. Warshauer; Removal of the General Partner.
(a) In the event of (w) the death or Disability of Myron C.
Warshauer, (x) the retirement by Myron C. Warshauer from full business time
employment with the Partnership within the meaning of Section 7.4(b), (y) a
Change of Control (within the meaning of subsection (d)) with respect to SPC or
(z) the commencement of voluntary dissolution proceedings by SPC, Associates may
elect, within 60 days after the occurrence of such event, to invoke the
provisions of this Section 7.11 by delivery of written notice to SPC to such
effect. In the event of the removal of SPC pursuant to Section 7.12, the
provisions of this Section 7.11 shall automatically apply. In any case where
this Section 7.11 applies:
(i) Effective as of the date on which such notice is delivered
to SPC (or the date on which the General Partner is removed), (A) SPC
shall be deemed to withdraw from the Partnership as General Partner and be
admitted to the Partnership as Limited Partner with respect to its Class B
Interest and Class D Interest, (B) Associates shall be deemed to withdraw
from the Partnership as Limited Partner and be admitted to the Partnership
as General Partner with respect to its Class C Interest, (C) SPC's
authority to manage the Partnership's business and affairs shall
terminate, (D) Associates shall continue the business of the Partnership
as the substitute General Partner and shall have all the rights and
obligations to manage the Partnership as are provided under this
Agreement, and (E) all references in this Agreement to "General Partner"
shall be deemed to refer to Associates, rather than SPC.
(ii) Notwithstanding the election under this subsection (a),
all rights of SPC, Associates, and SP Parking Associates (if it is
admitted to the Partnership as a Limited Partner), as holders of the Class
A, Class B, Class C, or Class D Interests, to distributions under Article
V and allocations under Article IV shall remain in full force and effect.
(b) Upon the admission of Associates to the Partnership as a General
Partner pursuant to this Section 7.11, it shall make and file such amendments to
the Certificate,
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and shall cause to be executed and filed for recordation such other amendments,
documents, or instruments as are necessary or appropriate, to reflect the
withdrawal of SPC as General Partner and the admission of Associates as
substitute General Partner. Consent to such amendments shall be deemed to have
been given by each Limited Partner by execution of this Agreement.
(c) If, during any period in which Associates is the General Partner, (i)
the Partnership receives a bona fide written offer (the "Purchase Offer") to
purchase all or substantially all of the Partnership's business for a purchase
price payable in cash at closing equal to or greater than ten (10) times the
average of the Partnership's Distributable Cash for each of the two calendar
years immediately preceding the calendar year in which such Purchase Offer is
received, SPC (or any Person designated by SPC in writing) shall have the right,
exercisable in writing (the "SPC Purchase Notice") on or prior to the 45th day
after the receipt by SPC of written notice from Associates containing a copy of
the Purchase Offer, to purchase the entire Interest of Associates and of SP
Parking Associates, if it is then a Partner, for a purchase price equal to the
Fair Market Value of such Interest. (Each of Associates and SP Parking
Associates is hereinafter referred to as a "Selling Partner.") For purposes of
this subsection (c), the Fair Market Value of the Interest of a Selling Partner
shall be the amount that would be distributable to such Selling Partner under
Section 5.2 of this Agreement, if the Partnership had (A) accepted the
aforementioned written offer and sold all its assets and business for the
purchase price set forth therein, and (B) distributed the proceeds of such sale,
after payment of all expenses of the sale and Partnership liabilities, in
accordance with this Agreement. If SPC exercises its right to purchase (or to
cause its designee to purchase) the Interests of the Selling Partners, the
closing of each such purchase shall occur at such time, date, and place as SPC
and the Selling Partners shall agree, but in any event not later than 60 days
after the delivery of the SPC Purchase Notice by SPC to the Selling Partners. At
the closing, SPC (or its designee) shall pay the purchase price in immediately
available funds, and each Selling Partner shall deliver to SPC (or its designee)
an instrument or instruments in form and substance reasonably satisfactory to
SPC (or such designee), assigning the entire Interest of such Selling Partner to
SPC (or such designee), free and clear of all liens and encumbrances. If SPC
does not exercise its right to acquire the Interest of Associates and SP Parking
Associates under this subsection (c) within the 45-day period prescribed above,
Associates may proceed to accept the Purchase Offer on the terms set forth
therein without the consent of SPC; provided, however, that if the terms of the
Purchase Offer are thereafter amended or modified in any material manner, or if
the transaction contemplated by the Purchase Offer is not closed in accordance
with the terms specified therein within 180 days after the expiration of the
45-day period for delivery of the SPC Purchase Notice, the Purchase Offer shall
be deemed to be a new Purchase Offer and the provisions of this subsection (c)
shall thereupon apply as if such new Purchase Offer were received by Associates
upon the expiration of said 180-day period or the date on which the original
Purchase Offer is so amended and modified.
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(d) For purposes of this Section 7.11, a Change of Control shall be
deemed to occur with respect to SPC if (and only if): (a) any Person(s) other
than Myron C. Warshauer and his Affiliates and relatives (the "Current
Stockholder Group") acquire the right, by virtue of their ownership of voting
securities of SPC or otherwise, to elect or designate a majority of the members
of the Board of Directors of SPC; or (b) the stockholders of SPC approve an
agreement to merge or consolidate with another corporation, unless following the
consummation of such merger or consolidation the Current Stockholder Group,
singly or jointly, shall continue to have the right, by virtue of its ownership
of voting securities or otherwise, to elect or designate a majority of the
members of the Board of Directors of the surviving corporation.
Section 7.12. Removal of General Partner. SPC may be removed as the
General Partner by the vote of all the Limited Partners, if the Partnership
fails to earn a profit (determined in accordance with GAAP) for any two
consecutive calendar years ("Loss Years"). Any action of the Limited Partners to
remove the General Partner pursuant to this Section 7.12 shall not be effective
unless: (i) Written notice of the meeting at which a vote to remove the General
Partner will be taken is delivered to all the Partners (including the General
Partner) not later than 30 days prior to the commencement of the aforementioned
meeting and 120 days after the close of the second Loss Year; (ii) the General
Partner is given an opportunity at the meeting of the Partners to defend its
performance as General Partner; and (iii) at the meeting all the Limited
Partners vote to remove the General Partner. In the event the Limited Partners
vote to remove the General Partner in accordance with this Section 7.12, such
removal shall be effective as of the date on which such vote is taken, and the
provisions of Section 7.11 shall govern with respect to admission of Associates
as substitute General Partner and the continuation of the Partnership's
business.
ARTICLE VIII
Limited Partners
Section 8.1. Rights And Obligations Of Limited Partners And Assignees.
(a) A Limited Partner, as such, shall not be personally liable for
any of the debts, liabilities, contracts, or any other obligations of the
Partnership. Notwithstanding the foregoing, in accordance with Section 17-608 of
the Act, but not otherwise, a Limited Partner may under certain circumstances be
required to return to the Partnership, for the benefit of Partnership creditors,
amounts previously distributed to such Limited Partner as a return of capital.
(b) The General Partner shall not have any personal liability for
the repayment of the Capital Contribution of any Limited Partner.
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(c) No Limited Partner may participate in the control of the
business of the Partnership, transact any business for the Partnership, or have
any authority to sign for or bind the Partnership. The foregoing does not limit
the right of any Limited Partner to consent to major business decisions as set
forth in this Agreement.
Section 8.2. Assignments By Limited Partners And Assignees.
(a) Subject to any restrictions on transferability created by
operation of law or contained elsewhere in this Agreement, a Limited Partner may
not assign (which term shall include, for purposes of this Article VIII, a sale,
gift, pledge, hypothecation, or other disposition or transfer), all or part of
its Interest unless all the following conditions are satisfied:
(i) The assignee consents in writing in form reasonably
satisfactory to the General Partner to be bound by the terms of this
Agreement:
(ii) Such assignment is made in form reasonably satisfactory
to the General Partner;
(iii) Except in the case of an assignment described in clause
(i), (ii), (iii), or (iv) of Section 7.10 (with respect to which the
consent of the General Partner shall not be required), the General Partner
has consented in writing to such assignment, which consent may be withheld
in the sole and absolute discretion of the General Partner;
(iv) The assignor agrees to pay all the costs reasonably
incurred by the Partnership in connection with such assignment; and
(v) The assignor, Assignee, and (if deemed necessary by the
General Partner) all other Partners have executed all such certificates
and other documents and performed all such acts as the General Partner
reasonably deems necessary or appropriate to effect a valid transfer and
to preserve the rights, status, and existence of the Partnership.
(b) Notwithstanding subsection (a), no assignment of the Interest of
a Limited Partner will be permitted if such assignment would (i) jeopardize the
status of the Partnership as a partnership for federal income tax purposes, as
reasonably determined by the General Partner following consultation with Legal
Counsel, (ii) cause a termination of the Partnership for purposes of the
then-applicable provisions of the Code, as reasonably determined by the General
Partner following consultation with Legal Counsel, (iii) violate or cause the
Partnership to violate any applicable law or governmental rule or regulation,
including without limitation any applicable federal or state securities law, or
(iv) cause the
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Partnership to be deemed to be an "Investment Company" for purposes of the
Investment Company Act of 1940, as amended.
(c) If Limited Partner assigns its entire interest in the
Partnership, such Partner shall, upon the effective date of such assignment,
cease to be a Limited Partner for all purposes but shall not be relieved of any
obligations it may have had under this Agreement before the date of such
assignment. Unless otherwise consented to by the General Partner, the effective
date of an assignment under this Section 8.2 shall be the first day of the first
full calendar month following receipt by the General Partner of written notice
of assignment and fulfillment of all conditions precedent to such assignment
provided for in this Agreement.
(d) Unless and until an Assignee of an Interest in the Partnership
becomes a Substitute Limited Partner, such Assignee shall not be entitled to
exercise any of the rights provided to a limited partner under the law of the
State of Delaware or any other jurisdiction purporting by statute to grant
express rights to a limited partner of a limited partnership, except that such
Assignee shall be entitled to allocations under Article IV attributable to any
Interest in the Partnership acquired by reason of an assignment in accordance
with Section 4.6, and any distributions made with respect thereto under Article
V arising after the effective date of the assignment. An Assignee shall have the
right to become a Substitute Limited Partner only upon the satisfaction of the
following conditions:
(i) If deemed necessary by the General Partner an amended
Certificate has been duly executed and filed in the appropriate public
offices;
(ii) The conditions of Section 8.2(a) have been satisfied;
(iii) Except in the case of an assignment described in clause
(i) or (ii) of Section 7.10, the General Partner has consented in writing
to such substitution, which consent may be withheld in the sole and
absolute discretion of the General Partner; and
(iv) The assignor and Assignee execute and acknowledge such
other instruments, in form and substance satisfactory to the General
Partner, as the General Partner may deem necessary or desirable to effect
such substitution.
(e) By executing this Agreement, each Limited Partner shall be
deemed to have consented to any assignment consented to by the General Partner
and to the admission of an assignee as a Substitute Limited Partner permitted by
the General Partner. Each Limited Partner agrees, upon request of the General
Partner, to execute such certificates or other documents and perform such acts
as the General Partner deems appropriate to preserve the status of the
Partnership as a limited partnership after the completion of any assignment of
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an Interest in the Partnership pursuant to the terms of this Agreement under the
laws of the jurisdiction in which the Partnership is doing business.
(f) Any purported assignment of an Interest of a Limited Partner in
violation of the provisions of this Agreement is void.
Section 8.3. Death, Bankruptcy, or Incapacity of Limited Partner. In
the event an individual Limited Partner or Assignee dies or is adjudged
incompetent, or in the event of the Bankruptcy of a Limited Partner or Assignee,
the Partnership shall not dissolve, and the duly appointed and qualified legal
representative of such Limited Partner or Assignee shall succeed to the interest
of such Limited Partner or Assignee upon furnishing to the General Partner
satisfactory evidence of such representative's appointment and authority. Such
legal representative (i) shall have only the status of an Assignee (except that
the Executor or Administrator of the estate of a deceased Limited Partner shall
have all the rights of a Limited Partner for the purpose of settling his estate
or administering his property), and (ii) may assign the interest of such Limited
Partner or Assignee only as permitted by Section 8.2 and the Act. The provisions
of clause (ii) shall apply to any assignment or distribution by any legal
representative to the beneficiaries under the will of, or the heirs at law of,
any deceased Limited Partner or Assignee. Section 8.4. Certain Rights and
Obligations of Associates.
(a) Excluding garages presently owned or managed by Affiliates of
Associates and renewals or modifications of such arrangements, Associates shall
use reasonable good faith efforts to present to the Partnership any opportunity
to manage or lease any garage or other parking facility or otherwise engage in
the Garage Management Business (except with respect to Excluded Garages, as
defined in Section 7.3(b)) of which Associates, SP Managers, L.P. (a Delaware
limited partnership and the managing partner of Associates), any partner of SP
Managers, L.P., or any Affiliate of any partner of SP Managers, L.P. becomes
aware. Notwithstanding the foregoing, Associates shall have no duty to present
any opportunity to manage or lease any Excluded Garage to SPC or to assist SPC
in capturing any such opportunity with respect to any Excluded Garage.
(b) During the term of this Agreement and for a period of three
years thereafter, Associates agrees that neither it nor any of its Affiliates
will engage in the Garage Management Business in North America or Europe;
provided. however, that, subject to subsection (a), nothing herein shall
preclude Associates or its Affiliates from: (i) owning, directly or indirectly
through a partnership or other entity, garages or other parking facilities; (ii)
engaging in the Garage Management Business with respect to garages or other
parking facilities owned by Affiliates of Associates; (iii) engaging in the
Garage Management Business with respect to any garage or other parking facility
owned by any Person for whom Associates or any of its Affiliates serves in the
capacity of an investment advisor; (iv) engaging
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in any business other than the Garage Management Business; or (v) transacting
business with anyone transacting business with the Partnership.
(c) Associates hereby: (i) represents that under the partnership
agreement of Associates and the partnership agreement or other governing
document of SP Managers, L.P., neither a partnership interest in Associates, nor
any partnership interest in SP Managers, L.P., may be transferred without the
consent of Standard Managers, Inc. (except for transfers to any Affiliate,
relative, or trust for the benefit of a relative of the holder of such
interest); (ii) agrees that neither the partnership agreement of Associates nor
the partnership agreement of SP Managers, L.P. will be amended or modified to
permit a partnership interest in Associates or in SP Managers, L.P. to be
transferred without the consent of Standard Managers, Inc. (except for transfers
to any Affiliate, relative, or trust for the benefit of a relative of the holder
of such interest); and (iii) agrees that throughout the term of this Agreement,
Standard Managers, Inc. will be under the control of one or more Associates'
Representatives (or their respective Affiliates or descendants).
Section 8.5. Associates' Representative. The parties hereto agree
that any and all consents and other documents required to be executed by
Associates (or by SP Parking Associates, if and when it is admitted to the
Partnership as a Limited Partner), and any and all notices and disclosures
required to be made to Associates (or to SP Parking Associates), shall be signed
by, or made or delivered to, an Associates' Representative. Judd D. Malkin, Neil
Bluhm, David Richter, Steve Malkin, Barry Malkin, and Andrew Bluhm are each
hereby designated as an Associates' Representative; provided, however, that an
Associates' Representative may at any time designate any other Person, with the
consent of the General Partner (which consent cannot be unreasonably withheld),
as substitute Associates' Representative by written notice to the General
Partner.
Section 8.6. Certain Provisions Regarding the C Interest. SPC shall
have the right, at its option, to purchase (or to cause any other Person to
purchase) the entire Class C Interest held by any Class C Partner for a purchase
price equal to the greater of the Class C Unrecovered Capital or the balance in
the Class C Capital Account of such Class C Partner as of the last of the day of
the month in which the notice described below is delivered to the Class C
Partner, adjusted to eliminate any increase or decrease in such Capital Account
as is attributable to an adjustment of Gross Asset Value under section 1.42(b),
(c), or (d). Such option may be exercised, by delivery to the Class C Partner of
a written notice of exercise, at any time during the 60-day period commencing
180 days after the expiration of the Exercise Period (as defined in the SP
Parking Option Agreement), but only if SP Parking Associates fails to exercise
its option under the SP Parking Option Agreement to acquire the Class A
Interest. The closing of the purchase of the Class C Interest pursuant to the
option granted by this Section 8.6 shall occur at such time, date, and place as
SPC and the Class C Partner shall agree, but in any event not later than 45 days
after the delivery of notice of exercise by SPC. At the closing, SPC shall pay
the purchase price in immediately available funds, and the Class C Partner shall
deliver to SPC an instrument or instruments in form and sub-
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stance reasonably satisfactory to SPC, assigning the Class C Interest to SPC,
free and clear of all liens and encumbrances.
ARTICLE IX
Dissolution and
Termination
Section 9.1. Dissolution Of Partnership. The Partnership will dissolve and its
assets and business will be wound up upon the first to occur of the following
events:
(a) Expiration of the term of the Partnership;
(b) Written election of all the Partners to dissolve the
Partnership;
(c) The occurrence of an event which makes it unlawful for the
Partnership business to be continued under the Act or otherwise;
(d) The passage of 90 days after an Event of Withdrawal of the
last remaining General Partner (except under the circumstances described
in Section 7.11), unless all the Limited Partners vote to elect a new
General Partner to carry on the business of the Partnership as a successor
General Partner in accordance with Section 7.9(a); or
(e) Any other event which, under the Act, requires the
dissolution of the Partnership and the winding up of its business and
affairs.
Dissolution of the Partnership shall be effective on the date on which the event
occurs giving rise to the dissolution, but the Partnership shall not terminate
until the Certificate shall have been canceled and the assets of the Partnership
have been distributed as provided in Sections 9.2 and 9.3. Notwithstanding the
dissolution of the Partnership, prior to the termination of the Partnership, as
aforesaid, the business of the Partnership and the affairs of the Partners as
such shall continue to be governed by this Agreement.
Section 9.2. Liquidation and Distribution. Following the occurrence
of an event described in Section 9.1, the General Partner (or in the event the
dissolution is caused by an Event of Withdrawal of the last remaining General
Partner, a Person selected by Associates) will act as liquidating trustee. Such
liquidating trustee will wind up the affairs of the Partnership in the following
manner:
(a) The liquidating trustee shall use its best efforts to sell
all of the Partnership's assets in an orderly manner (so as to avoid the
loss normally associated with forced sales).
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(b) The liquidating trustee shall apply and distribute the
proceeds of all such sales, together with other funds which the
liquidating trustee was unable to dispose of in accordance with paragraph
(i), in the following order of priority: (A) First, to the payment of all
debts and liabilities of the Partnership (including debts and liabilities
owed to Partners); (B) Second, to the establishment of any reserves
reasonably necessary to provide for any contingent Partnership liabilities
and obligations (such reserves to be paid over to a bank or trust company,
as escrowee, to be held by such escrowee for the purpose of disbursing
such reserves in payment of any such contingent liability or obligation
and to pay over the balance thereafter remaining for distribution in the
manner set forth in clause (C) hereof); and (C) Third, as provided in
Section 5.2.
Section 9.3. Termination. Each of the Partners will be furnished
with a statement prepared by the Accountants, which will set forth the assets
and liabilities of the Partnership as of the date of the final distribution of
Partnership assets under Section 9.2 and the Net Profits or Net Losses and other
items allocable under Article IV of this Agreement for the fiscal period ending
on such date. Upon compliance with the distribution plan set forth in Section
9.2, the Limited Partners will cease to be such, and the General Partner or the
liquidating trustee will cause the Certificate to be canceled, whereupon the
Partnership will terminate.
ARTICLE X
Miscellaneous
Section 10.1. Further Assurances. Each Limited Partner hereby agrees that,
promptly upon the request of the General Partner, it will do, execute,
acknowledge, deliver, record, file, and register any and all such further acts,
agreements, notices, certificates, assurances, and other instruments as the
General Partner may reasonably require from time to time in order to carry out
more effectively the purposes of this Agreement.
Section 10.2 Amendments.
(a) This Agreement may be amended from time to time by the General
Partner, without the consent of any of the Limited Partners, (i) to add to the
representations, duties, or obligations of the General Partner or surrender any
right or power granted to the General Partner herein if such surrender would be
for the benefit of the Limited Partners; (ii) to delete or add any provision of
this Agreement required to be so deleted or added by a federal agency or by a
state "Blue Sky" commissioner or similar such official, which addition or
deletion is deemed by such agency commissioner, or official to be for the
benefit or protection of the Limited Partners; (iii) to take such actions as may
be necessary (if any) to avoid a Plan Asset Transparency or to avoid the
Partnership's engaging in a prohibited transaction as defined in section 4975(c)
of the Code with the General Partner or its Affiliates; (iv) to
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amend or add to the allocation provisions of Article IV to the extent necessary
on the advice of Legal Counsel to give effect to such allocations as originally
contemplated upon execution of this Agreement if amended final regulations under
section 704 to the Code are adopted by the Treasury Department; (v) on the
advice of Legal Counsel, to prevent the Partnership from being deemed an
"Investment Company" for purposes of the Investment Company Act of 1940, as
amended; and (vi) to amend any other provision of this Agreement as the General
Partner may be authorized by this Agreement; provided, however, that no
amendment shall be adopted pursuant to this Section 10.2(a) unless the adoption
thereof (1) is for the benefit of or not adverse to the interest of any Limited
Partner; (2) except as provided in clause (iii) or (iv), does not affect the
interests of any Partner in distributions of Distributable Cash or Capital
Transaction Proceeds or allocations of Net Profit or Net Loss and (3) does not
adversely affect the limited liability of the Limited Partners or the status of
the Partnership as a partnership for federal income tax purposes.
(b) In addition to the amendments otherwise authorized herein,
amendments may be made to this Agreement from time to time by the General
Partner with the written consent of all the Limited Partners.
(c) In making any amendments, there shall be prepared and filed for
recordation by the General Partner such documents and certificates as shall be
required to be prepared and filed under the Act and under the laws of the other
jurisdictions under the laws of which the Partnership is then formed or
otherwise required to make such filing. The General Partner shall give written
notice to all Partners promptly after any amendment has become effective.
Section 10.3 Notices And Addresses. All notices required to be given
under this Agreement shall be in writing and may be delivered by certified or
registered mail, postage prepaid, by hand, by facsimile, or by any nationally
recognized private courier. Such notices shall be mailed or delivered to the
Partners at the addresses set forth after the signature of such Partners or such
other address as a Partner may notify the other Partners of in writing. Any
notices to be sent to the Partnership shall be delivered to the principal place
of business of the Partnership or at such other address as the General Partner
may specify in a notice sent to all of the Partners. Notices shall be effective
(i) if mailed, on the date three days after the date of mailing, (ii) if hand
delivered or delivered by private courier, on the date of delivery, or (iii) if
transmitted by facsimile, on the date of transmission.
Section 10.4. Governing Law. The validity and effectiveness of this
Agreement shall be governed by and construed and enforced in accordance with the
internal laws of the State of Delaware, without giving effect to the provisions,
policies or principles of any state law relating to choice or conflict of laws.
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Section 10.5. Successors And Assigns. This Agreement shall be
binding upon and inure to the benefit of the Partners, Assignees, and their
respective legal representatives and successors.
Section 10.6 .Counterparts. This Agreement may be executed in
multiple counterparts. each of which may bear the signatures of less than all
the parties, but all of which together shall constitute one instrument.
Section 10.7. Entire Agreement; Severability. This Agreement,
together with the Partnership Formation Agreement, the Exhibits hereto and
thereto, and the Related Agreements (as defined in the Partnership Formation
Agreement), constitutes the entire agreement among the parties hereto with
respect to the subject matter hereof, and no party hereto shall be bound by any
communications between them on the subject matter of this Agreement unless in
writing and bearing a date contemporaneous with or subsequent to the date of
this Agreement. Any prior written agreements shall, upon the execution of this
Agreement, be null and void. The parties agree that if any term or provision of
this Agreement contravenes or is invalid under any federal, state or local law,
court decision, rule, ordinance or regulation, this Agreement shall, as to the
jurisdiction under which such legal authority is promulgated or rendered, be
construed as if it did not contain the offending term or provision, and the
remaining provisions of this Agreement shall not be affected thereby; provided,
however, that if the removal of such offending term or provision materially
alters the burdens or benefits of any of the parties under this Agreement, the
parties agree to negotiate in good faith such modifications to this Agreement as
are appropriate to insure the burdens and benefits of each party under such
modified Agreement are reasonably comparable to the burdens and benefits
originally contemplated and expected.
Section 10.8. Captions. The captions are inserted for convenience of
reference only and shall not affect the construction of this Agreement.
Section 10.9. Statutory References. Each reference in this Agreement
to a particular statute or regulation, or a provision thereof, shall be deemed
to refer to such statute or regulation, or provision thereof, or to any similar
or superseding statute or regulation, or provision thereof, as is from time to
time in effect.
Section 10.10. Partition Action. Each party hereto irrevocably
waives any right which it may have to maintain an action for partition with
respect to property of the Partnership.
Section 10.11. Confidentiality. Each Partner hereby agrees that it
(i) will not use Confidential Information other than for a Partnership purpose
(provided that nothing herein shall prevent SPC or any of its Affiliates from
using Confidential Information for the purpose of conducting the activities
which they are permitted to conduct under Section 7.3(b) or Section 7.3(c)), and
(ii) it will use its reasonable best efforts to hold Confidential Informa-
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tion (as defined below) confidential, but will in any event hold such
Confidential Information no less confidentially than is customary for it in
handling confidential information of this nature. Each Partner further agrees
not to disclose any Confidential Information (and Associates agrees that none of
the Associates' Representatives will disclose any Confidential Information)
except as required or requested pursuant to applicable law; provided that a
Partner may make disclosure (i) of summary aggregate financial information
regarding the Partnership to its partners or other owners and to any Affiliates
or assignees or transferees of partnership interests in such Partner and (ii) to
any of its outside auditors and counsel if they agree to be bound by this
Section. For this purpose the term "Confidential Information" means: (u) the
identity of any Limited Partner; (v) the identity of any client or landlord of
the Partnership, SPC, or any Affiliate of SPC; (w) the fees payable to or for
the benefit of the Partnership, the expiration date, or any other term of any
lease, management agreement, operating agreement, or other agreement with
respect to the lease, management, or operation of any parking facility; (x) the
profitability of any contract or group of contracts or any financial information
of the Partnership; (y) any trade secret; and (z) any other information
concerning the Partnership's business; provided, however, that the term
"Confidential Information" shall not include information which (A) is or becomes
generally available to the public other than, with respect to a Partner, as a
result of a disclosure by such Partner which is not legally compelled to be
disclosed in any judicial or administrative proceeding, or (B) otherwise becomes
available to a Partner on a non-confidential basis.
Section 10.12. Waiver. The waiver by any party hereto of the breach
of any term, covenant, agreement or condition herein contained shall to be
deemed a waiver of any subsequent breach of the same or any other term,
covenant, agreement or condition herein, nor shall any custom, practice or
course of dealings arising among the parties hereto in the administration hereof
be construed as a waiver or diminution of the right of any party hereto to
insist upon the strict performance by any other party hereto of the terms,
covenants, agreements and conditions herein contained.
Section 10.13. Securities Law Provisions. The Interests have not
been registered under the Federal or state securities laws of any state and,
therefore, may not be resold unless appropriate Federal and state securities
laws, as well as the provisions of Article VIII hereof, have been complied with.
Section 10.14. Consents and Approval. Whenever under this Agreement
the consent or approval of any Partner is required or permitted, such consent
must be evidenced by a written consent signed by such Partner.
Section 10.15. Remedies Not Exclusive. Unless otherwise provided in
this Agreement, any remedy contained in this Agreement for breaches of
obligations hereunder shall not be deemed to be exclusive and shall not impair
the right of any party to exercise any other right or remedy, whether for
damages, injunction or otherwise.
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Section 10.16. Identification. Wherever from the context it appears
appropriate, each term stated in either the singular or the plural shall include
the singular and the plural, and pronouns stated in either the masculine or the
neuter gender shall include the masculine, feminine and neuter.
Section 10.17. Litigation. The General Partner shall prosecute and
defend such actions at law or in equity as may be reasonably necessary, in the
judgment of the General Partner, to enforce or protect the interest of the
Partnership. The Partnership and the General Partner shall respond to any final
decree, judgment or decision of any court, board or authority having
jurisdiction in judgment, decree or decision, first out of any insurance
proceeds available therefor, next out of assets of the Partnership and finally
out of the assets of the General Partner.
Section 10.18. No Presumption Against Drafter. The parties hereto
have jointly participated in the negotiation and drafting of this Agreement. In
the event of an ambiguity or if a question of intent or interpretation arises,
this Agreement shall be construed as if drafted jointly by all of the parties
hereto and no presumptions or burdens of proof shall arise favoring any party by
virtue of the authorship of any of the provisions of this Agreement.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement of
Limited Partnership as of the date first above written.
GENERAL PARTNER
STANDARD PARKING CORPORATION,
an Illinois corporation
55 E. Monroe Street
Suite 3440
Chicago, Illinois 60603
By /s/ Myron C. Warshauer
-----------------------------------------
Myron C. Warshauer, President
LIMITED PARTNERS
SP ASSOCIATES,
an Illinois general partnership
900 N. Michigan Avenue
Suite 1900
Chicago, Illinois 60611
By SP Managers, L.P., a Delaware
limited partnership, its managing
partner
By Standard Managers, Inc., a Delaware
corporation, its general partner
By /s/ David S. Richter
------------------------------------------
David S Richter, its Vice President
STANDARD PARKING CORPORATION,
an Illinois corporation
55 E. Monroe Street
Suite 3440
Chicago, Illinois 60603
By /s/ Myron C. Warshauer
------------------------------------------
Myron C. Warshauer, President
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EXHIBIT A
Excluded Garages
A. The following garages are Excluded Garages under clause (y) of
Section 7.3(b) and may not be managed by SPC.
1. 4041 Central, Phoenix, Arizona
2. Shell Building, San Francisco, California
3. Century Park Plaza, Los Angeles, California
4. 1200 New Hampshire, Washington, D.C.
5. 1250 Connecticut, Washington, D.C.
6. INB Bank Building, Indianapolis, Indiana
7. First National Tower, Louisville, Kentucky
B. The following garage is an Excluded Garage under clause (x) of
Section 7.3(b) and may be managed by SPC.
1. Water Tower Place, Chicago, Illinois
49
EXHIBIT B
Schedule of Owned Garage
A. Garages Owned by SPC or an Affiliate for which management is to be
provided by (and management fees paid to) the Partnership:
All garages owned by SIDCOR/SW Partners:
Hollywood Towers
260 East Chestnut
Imperial Towers
2 East Oak
Franklin Lake Self Park
Franklin Van Buren Self Park
203 North LaSalle Street Self Park
B. Garages Owned by SPC or an Affiliate for which management is to be
provided by the Partnership but for which no management fee is
payable:
Clark-Fullerton
C. Garages Owned by SPC or an Affiliate for which management is to be
provided by (and management fees paid to) an Affiliate of SPC:
Theatre District Self Park (management fees to be paid to
Standard/Tremont)
Adams Wabash Self Park (management fees to be paid to
Standard/Wabash)
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EXHIBIT C
Schedule of Employees and Affiliates
With Rights to Participate in
Revenues or Profits of the Partnership
1. Agreement dated as of June 19, 1979, between Allan R. Lombardo and
Standard Parking Corporation.
2. Agreement dated as of July 23, 1981, between J. Norman Thorson and
Standard Parking Corporation, as amended on February 21, 1990.
3. Agreement dated as of June 7, 1991, between Robert B. Anthonyson and
SPC, as modified by memorandum dated September 15, 1993 from Robert
B. Anthonyson to Myron C. Warshauer.
4. Agreement dated as of April 1, 1992 between George C. Hester and
SPC.
5. Agreement, dated as of September 29, 1982, among (a) on the one
hand, SPC, and (b) on the other hand, Warshauer Management
Corporation, an Illinois corporation, Tremont Auto Park, Inc., an
Illinois corporation, Auditorium Garage, Inc., an Illinois
corporation, Stanley Warshauer, individually and as Trustee under
the Will of Benjamin Warshauer, Deceased, Steven A. Warshauer, and
Janet Warshauer, as amended on or before the date hereof.
6. Agreement dated as of May 21, 1990 among Michael K. Wolf and
Metropolitan Parking Station, Inc., Standard Auto Park, Inc.,
Standard Parking Corporation, Standard Parking Corporation of
California, Standard Parking Service, Inc., Standard/Tremont Parking
Corporation, Standard/Wabash Parking Corporation, Standard Parking.
Inc. MA and such other entities (whether then in existence or
thereafter created) that directly or indirectly, through one or more
intermediaries, control or are controlled by, or are under common
control with, Standard Parking Corporation.
7. The transfer to one or more of Allan Lombardo, Michael E. Swartz, J.
Norman Thorson, Steven A. Warshauer, James A. Wilhelm, and Michael
K. Wolf of a portion of Standard Parking Corporation's Class B
and/or Class D interest in Standard Parking, L.P. for an aggregate
purchase price not to exceed $2,000,000.
51
EXHIBIT D
Schedule of Investments
1. Interest of SPC as General Partner of SW Partners, an Illinois
limited partnership, which limited partnership is general partner in
SIDCOR/SW Partners, an Illinois general partnership.
2. Interest of SPC in Franklin Garage Limited Partnership.
52
ASSIGNMENT OF CLASS D INTEREST
IN STANDARD PARKING, L.P.,
A DELAWARE LIMITED PARTNERSHIP
1. The undersigned hereby irrevocably assigns forty percent (40%) of its
Class D Interest in STANDARD PARKING, L.P., a Delaware limited partnership
("Partnership"), as follows:
Transferor Interest Transferred Transferee
- ---------- -------------------- ----------
STANDARD PARKING DOSHER PARTNERS, L.P.,
CORPORATION, an 40% of its Class D a Delaware limited
Illinois corporation Interest partnership
not as assignee, but as substitute holder of such Class D Interest under the
Partnership agreement.
2. The undersigned hereby irrevocably constitutes and appoints MICHAEL K.
WOLF to be the attorney of the undersigned to transfer such interest on the
books of the Partnership. This Assignment shall be effective as of the date
hereof.
Dated: May 5, 1997
Standard Parking Corporation, an
Illinois corporation
--------------------------------------------
By: Myron C. Warshauer
Its: President
53
ACCEPTANCE
The undersigned hereby accepts the Assignment hereinabove described and
agrees to be bound by the terms of the STANDARD PARKING, L.P., Agreement of
Limited Partnership.
Dated: May 5, 1997
Dosher Partners, L.P., a Delaware
limited partnership
--------------------------------------------
By: Myron C. Warshauer, President of
Standard Parking Corporation, the
General Partner of Dosher Partners, L.P.
CONSENT
The undersigned hereby consent to the Assignment hereinabove described and
agree to admit DOSHER PARTNERS, L.P., as substitute holder of such Class D
Interest in STANDARD PARKING, L.P., a Delaware limited partnership.
Dated: May 5, 1997
STANDARD PARKING CORPORATION, General
Partner
--------------------------------------------
By: Myron C. Warshauer
Its: President
SP ASSOCIATES, Limited Partner
--------------------------------------------
By:
Its: