EXHIBIT 3.24.1
LIMITED PARTNERSHIP AGREEMENT
Little Rock Lodging Associates I, Limited Partnership
Little Rock Lodging Associates, Inc., an Arkansas corporation (the
"General Partner"), and each of the persons named in the Signature pages or
Exhibit "A" attached hereto (collectively as the "Limited Partners"), desiring
to form a limited partnership pursuant to the provisions of the Georgia Revised
Uniform Limited Partnership Act (the "Act") do, for that purpose, hereby enter
into this Limited Partnership Agreement ("Agreement") as of the 18 day of
October, 1996 (the "Closing Date").
ARTICLE I
FORMATION, CERTIFICATE OF LIMITED PARTNERSHIP,
NAME, ETC.
Section 1.1 Formation: The parties hereto do hereby enter into and form a
limited partnership pursuant to Sections 14-9-100 to 14-9-1204 of the Official
Code of Georgia Annotated ("O.C.G.A."), and under the laws of the State of
Georgia (the "Partnership"), on the terms and conditions hereinafter set forth.
Section 1.2 Certificate: The General Partner has executed a Certificate of
Limited Partnership and filed it with the Secretary of State of Georgia on
August 29, 1996.
Section 1.3 Name: The name of the Partnership shall be "Little Rock
Lodging Associates I, Limited Partnership" a Georgia limited partnership.
Section 1.4 Registered and Principal Office. The registered office and
principal place of business of the Partnership shall be at 3399 Peachtree Road,
N.E., Suite #1220, Atlanta, Georgia 30326, but substitute or additional places
of business may be established at such other locations as may, torn time to
time, be determined by the General Partner. The General Partner shall promptly
give notice to the other Partners of any change in the principal office or place
of business.
Section 1.5 Name and Address or Place of Residence of General Partner and
Registered Agent:
(a) The name and address of the General Partner of the Partnership
is as follows:
Little Rock Lodging Associates, Inc.
3399 Peachtree Road, N.E.
Suite #1220
Atlanta, Georgia 30326
(b) The name and place of legal residence of each of the Limited
Partners are set forth in Exhibit "A" attached hereto and made a part hereof.
The Limited Partners, who are so identified on the date hereof, are hereby
admitted as Limited Partners. Any change in interests shall be reflected in an
amendment to Exhibit "A". All references in this Agreement to Exhibit "A" mean
Exhibit "A" as in effect at the relevant time, including any amendments thereto.
(c) The registered agent for service of process shall be the General
Partner.
Section 1.6 Term: The Partnership became effective upon the execution of
the Certificate and the accomplishment of all filings required for limited
partnerships under the laws of the Stare of Georgia, and shall terminate on
October 1, 2020, unless the Partnership is sooner dissolved in accordance with
other provisions of this Agreement.
Section 1.7 Purpose: The sole purpose of the Partnership is: (i) to
acquire and conduct the "Project", as hereinafter defined; (ii) to operate,
manage, improve, lease or sell (in whole or in part) the Project; and (iii) for
all such other purposes as may be necessary or appropriate in furtherance of the
purposes identified in items (i) and (ii) above, and as permitted under Georgia
law.
Section 1.8 Authority: In order to carry our its purpose, the Partnership
is authorized, subject to other provisions of this Agreement, to do any and all
acts and things necessary, advisable or incidental to or convenient for the
furtherance and accomplishment of its purpose, and for the protection and
benefit of the Partnership, including, but not limited to, the following:
(a) To acquire, own, maintain, operate and lease the Project or sell
all or any part thereof;
(b) To borrow money and issue evidence of indebtedness in
furtherance of the Partnership business and secure any such indebtedness by
mortgage, pledge, or lien on the Project;
(c) To operate and maintain the Project including entering into
agreements with managing agents for the management of the Project;
(d) To negotiate for and conclude agreements for the sale, exchange,
lease, or other disposition of all or substantially all of the property of the
Partnership or for the refinancing of any mortgage loan on the property of the
Partnership;
(e) To prepay, in whole or in part, refinance, recast, increase,
modify or extend any mortgage, and in connection therewith to execute any
extensions, renewals or modifications thereof.
(f) To enter into any other kind of activity and to, perform and
carry out contracts of any kind, including contracts with Affiliates, necessary
to, or in conjunction with or incidental to, the accomplishment of the business
and purposes of the Partnership.
(g) Specifically, the Partnership may enter into a management
agreement with Impac Hotel Group, Inc., a hotel management concern and an
Affiliate of the General Partner, and, pursuant to which, the Partnership will
pay fees at the rate of 3% of the monthly gross hotel revenues (as defined in
the management agreement) so long as the management agreement is in effect.
(h) Specifically, the Partnership may enter into a construction
management and development agreement with Impac Hotel Development, Inc. and
Impac Design and Construction, Inc., affiliates of the General Partner. As part
of the consideration for the total fee of $428,653, the entities will fund the
fees related to the applications for a Residence Inn by Marriott franchise, and
shall only be reimbursed those costs if the project is purchased and Residence
Inn franchise is granted.
(i) To enter into an indemnification agreement with Robert Cole,
Charles Cole and Robert Flanders each of whom and all of whom are or may be
Affiliates, if any or all of them are required to guarantee the warranties and
representations made by the Partnership to any Lender.
Section 1.9 Books and Records: The General Partner shall maintain at the
Partnership's principal office the following records: (a) a current alphabetical
and separate listing of all general and limited partners of the Partnership,
including their full names and last known business addresses; (2) copies of the
Partnership's certificate of limited partnership and any amendments thereto; (3)
copies of the Partnership's four most recent years, federal, state and local
income tax returns; and (4) copies of the current written Partnership Agreement,
any merger agreement in which the Partnership is the surviving partnership, and
financial statement for the Partnership's four most recent Fiscal years. The
Partnership's Partners may inspect and copy, at the Partner's expense, these
records at the Partnership's principal office during normal business hours.
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ARTICLE II
CERTAIN DEFINITIONS
"Affiliate" means with respect to a specified person who, directly or
indirectly through one or more intermediates, controls, or is controlled by or
is under common control with the person specified.
"Agreement" means this Limited Partnership Agreement, as the same may be
amended from time to time.
"Capital Account" means, in respect to any Partner, the Capital
Contribution of such Partner as set forth in this Agreement, adjusted as set
forth in Article III hereunder. The Capital Account of the Partnership shall be
the sum of the Capital Accounts of all Partners.
"Capital Cash Flow" shall mean the proceeds received by the Partnership
from (i) any sale or other disposition of all or any substantial part of the
Project; (ii) any damage recoveries or insurance recoveries not used for repair
or restoration; (iii) any condemnation proceeds for the taking of all or part of
the Project not used for repair or restoration; (iv) any refinancing of the
Partnership Mortgages less any expenses incurred in connection with the receipt
or collection of any such proceeds, not applied or set aside for the reduction
of Partnership liabilities or the repair, restoration or improvement of the
Project.
"Capital Contribution" means, in respect to any Partner, the total amount
of money or fair market value of property contributed or agreed to be
contributed to the Partnership by such Partner as shown in Exhibit "A" and shall
include any additional Capital Contribution and Excess Capital Contribution, if
any, made pursuant to Section 3.8.
"Capital Item" shall mean (i) sale of all or part of the Project, (ii) any
insurance payments or damage recoveries paid to the Partnership in respect of
the Project not used for repair or restoration, (iii) any condemnation proceeds
paid to the Partnership for the taking of all or part of the Project not used
for repair or restoration, (iv) any proceeds derived from any refinancing of the
Partnership's Mortgages less any expenses incurred in connection with the
receipt or collection of any such proceeds, not applied or set aside for the
reduction of Partnership liabilities or the repair, restoration or improvement
of the Project.
"Certificate" means the Certificate of Limited Partnership of the
Partnership, as duly flied, and as amended from time to time as herein required,
in accordance with the laws of the State of Georgia.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, or corresponding provisions of subsequent laws.
"Fiscal Year" means the calendar year.
"General Partner" means Little Rock Lodging Associates, Inc., a Texas
corporation, and any substituted or additional General Partner a provided
herein.
"General Partner Interest" means that percent of the total interest in
capital and profits of the Partnership owned by the General Partner, subject to
adjustment as provided in Section 3.8 hereof.
"Involuntary Withdrawal" or "Involuntary Withdrawals" means the death,
incompetency or bankruptcy of the General Partner. For purposes of this
definition, bankruptcy of the General Partner shall be deemed to occur when such
General Partner files a petition in bankruptcy or voluntarily takes advantage of
any bankruptcy or insolvency laws, or is adjudicated a bankrupt, or a petition
or answer is filed proposing the adjudication of such General Partner as a
bankrupt and such General Partner consents to the filing thereof.
"Limited Partnership Interest" means that percent of the total interest in
capital and profits of the Partnership owned by a Limited Partner, subject to
adjustment as provided in Section 3.8 hereof.
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"Limited Partnership Offering" shall mean the offer to sell one hundred
(100) units of Limited Partnership Interests pursuant to the Private Placement
Memorandum of the Partnership of which the General Partner will obtain one (1)
Unit.
"Lender" means a national banking association, state banking corporation
or any other commercial lending institution selected by the General Partner.
"Limited Partners" means the persons executing this Agreement as Limited
Partners and any persons subsequently admitted to the Partnership as substituted
or additional Limited Partners.
"Limited Partners' Capital" means the sum of the Capital Contributions of
the Limited Partners.
"Nonrecourse Debt" means a Partnership liability with respect to which
none of the Partners has any personal liability as determined under Treasury
Regulation 1.752-1.
"Operating Cash Flow" shall mean the excess of cash revenue from operation
of the Project over (i) cash disbursements for costs, expenses, obligations and
liabilities of the Partnership, including debt service, without deduction for
depreciation; (ii) a Replacement Reserve Account; and (iii) a reasonable
allowance for other cash reserves for costs or expenses incident to the
ownership or operation of the Project, as determined by the General Partner.
Operating Cash Flow shall not include Capital Cash Flow.
"Partners" means, collectively, the General Partner and the Limited
Partners, and, individually, any one of the General Partner and Limited
Partners.
"Partnership" means the Limited Partnership formed pursuant to this
Agreement and the Certificate.
"Partnership Interests" means collectively the General Partnership
Interests and the Limited Partnership Interests.
"Partnership Mortgages" means any mortgage or security agreement executed
by the Partnership securing a note made by the Partnership and encumbering the
Project, or any part thereof, as such mortgages may be amended or supplemented
from time to time as therein provided.
"Partnership Notes" means any promissory notes secured by the Partnership
Mortgages, as such notes may be amended from time to time as therein provided.
"Partnership Term" means the period of time between the date the
Partnership becomes effective and the date it ceases to be effective.
"Percentage of Partnership Interest" of a Partner means the particular
Partner's Percentage of Interest in the Partnership as set forth opposite the
Partner's name in Exhibit "A" attached hereto, subject to adjustment as provided
in Section 3.8 hereof.
"Person" means any individual, partnership, corporation, trust, or other
entity.
"Profits and Losses" means the profits and losses of the Partnership for
federal income tax purposes for each Fiscal Year determined in accordance with
the accounting method followed by the Partnership for such purposes, including,
without limitation, each item of Partnership income, gain, loss, deduction
(including nonrecourse deductions as defined in Treasury Regulation 1.704-2) or
credit.
"Project" means a hotel, meeting rooms, structures and public spaces, to
be known as "Residence Inn-Little Rock," including all fixtures, furniture,
equipment and personal property located therein or thereon, together with the
real property located in Irving, Texas.
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"Representative" means the executor, administrator, guardian, trustee, or
other personal representative of a Partner.
"Replacement Reserve Account" shall mean a cash reserve account up to four
(4%) percent per year of the total such revenues of the Partnership (excluding
Capital Cash Flow) for the purpose of funding the repair, restoration or
replacement of furniture, fixtures and equipment of the Project or as that
Replacement Reserve Account is adjusted by General Partner as required by
Lender.
"Substituted Limited Partner" means any person admitted to the Partnership
as a Limited Partner pursuant to Article XI.
"Transfer" means any sale, assignment, gift, pledge or other disposition,
whether voluntary or by operation of law, of an Interest.
"Voluntary Withdrawal" or "Voluntary Withdrawls" means the resignation or
withdrawal of a General Partner other than an Involuntary Withdrawal.
Defined terms used in this Agreement and not set forth in this Article II
shall have the meanings set forth elsewhere in this Agreement, and all of such
defined terms, wherever set forth, shall be equally applicable to both the
singular and plural forms of the terms defined.
ARTICLE III
CAPITAL CONTRIBUTIONS; ACCOUNTS
Section 3.1 Contributions of the Partners:
(a) General Partner: The General Partner's initial contribution to
the capital of the Partnership is set forth in Exhibit "A"; provided, however,
the General Partner shall be obligated to contribute an amount which is not less
than one percent (1%) of the aggregate capital contributions of all Partners in
the Partnership at any time. In consideration of exposing its assets to the
liabilities incurred by the Partnership and undertaking other obligations as set
forth herein, the General Partner shall receive the interest in the Partnership
allocated to it in Section 5.6(b).
(b) Limited Partners: (i) Each Limited Partner shall in accordance
with the amounts set forth opposite his name on Exhibit "A" hereto, pay his
Capital Contribution subject to the conditions hereinafter set forth in Section
3.4 below. Each such person shall become a Limited Partner in the Partnership,
effective as of the date the General Partner accepts subscription of all or part
of the Limited Partner's subscribed Units.
(c) Partnership Interest: The General Partner's Partnership Interest
and each Limited Partner's Partnership Interest, as set forth in Exhibit "A",
shall represent his interest in the Partnership (subject to adjustment pursuant
to Section 3.8) and shall represent his proportionate interest in the
Partnership's business, property, assets, capital, profits and losses, subject
to all of the provisions of this Agreement.
Section 3.2 Capital Accounts: A Capital Account shall be maintained
for each Partner. Capital Accounts shall be increased by:
(a) The amount of money and the fair market value of property
contributed by the Partner (net of liabilities that the Partnership assumes or
takes subject to under Section 752 of the Code).
(b) The amount of any Partnership income and gain allocated to the
Partner.
Capital Accounts shall be decreased by:
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(c) The amount of money and the fair market value of property
distributed to the Partner by the Partnership (net of any liabilities that the
member assumes or takes subject to under Section 752 of the Code).
(d) Allocations to the Partner of Partnership expenditures that are
not deductible in computing the Partnership's taxable income and that are not
capital expenditures.
(e) Allocations to the Partner of Partnership loss, credit and
deduction.
Section 3.3 Compliance with Treasury Regulation 1.704-1(b)(2)(iv). The
manner in which Capital Accounts are to be maintained pursuant to this Agreement
are intended to comply with the requirements of Treasury Regulation
1.704-1(b)(2)(iv) and shall be interpreted and applied in a manner consistent
with such regulation throughout the full term of this Agreement. The following
special allocations shall be made in the following order:
(a) Minimum Gain Chargeback. If there is a net decrease in
Partnership minimum gain during the year, each Partner shall be specially
allocated items of Partnership income and gain for the year (and, if applicable,
subsequent years) equal to such Partner's share of the net decrease in
Partnership minimum gain. This allocation shall be defined, interpreted and
determined in accordance with applicable Treasury Regulations.
(b) Partner Minimum Gain Chargeback. If there is net decrease in
Partner minimum gain attributable to a Partner non-recourse debt during the
year, each Partner with a share of the Partner minimum gain shall be specially
allocated items of Partnership income and gain for the year equal to such
Partner's share of the decrease in Partner minimum gain attributable to such
Partner. This allocation shall be defined, interpreted, and determined in
accordance with applicable Treasury Regulations.
(c) Qualified Income Off-Set. If a Partner unexpectedly receives any
adjustments, allocations, or distributions described in Treasury Regulations
Sections 1.704-1(b)(2)(ii)(a)(4)-(6), items of Partnership income and gain shall
be specially allocated to each Partner in an amount and manner sufficient to
eliminate, to the extent required by Treasury Regulations, the negative Capital
Account balance of such Partner as quickly a possible. This allocation shall be
made only if a Partner would have a negative Capital Account balance after all
other allocations in this Article III are made.
Section 3.4 Limited Liability of Limited Partners: No Limited Partner
shall be liable for any of the losses, debts, liabilities, or obligations of the
Partnership or be required (except as provided in Section 3.8 hereof) to
contribute any capital beyond his required Capital Contribution or to lend any
funds to the Partnership except that a Limited Partner may be required by law
pursuant to the Act to return any or all of that portion of his Capital
Contribution which has been distributed to him.
Section 3.5 Withdrawal of Capital: Prior to the dissolution and
liquidation of the Partnership, no Limited Partner shall be entitled, without
the consent of the General Partner, to withdraw any part of his Capital
Contribution, except that distributions made in accordance with Article IV may
represent in whole or in part a return of capital.
Section 3.6 No Priority Among Limited Partners: No Limited Partner has any
priority over any other Limited Partner as to the return of his Capital
Contribution or as to allocation of profits and losses or distribution of cash.
Section 3.7 General Provisions: Loans by any Partner shall not be
considered contributions to the Partnership Capital. A Partner shall not be
entitled to withdraw any part of his Capital Contribution or to receive any
distribution from the Partnership, except as provided in Article IV and Article
XIII. A Partner shall not be entitled to make any additional Capital
Contributions to the Partnership other than the Capital Contributions required
or permitted to be made by such Partner under this Agreement. No interest shall
be paid on any capital contributed to the Partnership.
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Section 3.8 Additions to Partnership Capital: The General Partner may from
time to time determine that additional Partnership capital is required in order
to improve or to continue the ownership and operation of the Project. Upon such
a determination, additional funds may be obtained at the option of the General
Partner, in its sole discretion, by additional partnership financing in the
following manner from the following sources, without any authorization from the
Limited Partners, and such sources may be utilized as necessary, in any order or
priority by borrowing from:
(A) commercial banks;
(B) other prime lenders;
(C) General Partner;
(D) Limited Partners; or
(E) lenders other than prime lenders (including
loans secured by secondary financing against the Partnership property).
In the event that the General Partner, in its sole discretion, determines
that the most desirable source for additional Partnership capital is Additional
Capital Contributions from the Partners, the General Partner shall advise all of
the Partners by notice of (a) the aggregate amount of additional Capital
Contributions required, (b) each Partner's pro-rata share thereof based upon
each Partner's percentage interest, and (c) the date on which such Additional
Capital Contributions are required, which date shall not be earlier than 15 days
following the date of such notice. Each Partner shall have the right and option
to make Additional Capital Contributions to the Partnership in the amount of the
Partner's pro-rata share (based on the Partner's percentage interest) of such
Additional Capital Contributions on or before the date provided for in such
notice. If and to the extent that any of the Partners fails to contribute his
pro-rata share of such Additional Capital Contributions, the General Partner may
(but shall not be required to) make Capital Contributions in excess of the
General Partner's pro-rata share of the Additional Capital Contributions (herein
referred to as "Excess Capital Contributions") in order to provide wholly or
partly for the aggregate Additional Capital Contributions required by the
Partnership. The decision of the General Partner to make an Excess Capital
Contribution on behalf of any one Partner shall not obligate the General Partner
to make similar Excess Capital Contributions on behalf of any other Partner who
shall have failed to make an Additional Capital Contribution. In the event any
Partner fails to make an Additional Capital Contribution (whether or not the
General Partner elects to make an Excess Capital Contribution), then the
percentage interests of all Partners shall be automatically recalculated so that
the percentage interests of each Partner is pro-rata in accordance with the
Partner's total Capital Contributions. In the event of an adjustment in
percentage interests, Exhibit "A" shall be deemed automatically amended for all
purposes of this Agreement to reflect such modification of percentage interests.
Section 3.9 No Rights in Third Parties: The provisions of this Agreement
are for the benefit of the Partnership and the Partners, and are not intended to
be for the benefit of any person to whom any debts, liabilities or obligations
are owed by, or who otherwise has any claim against, the Partnership or any
Partner, and no creditor or other person shall obtain any rights under such
provisions or solely by reason of such provisions.
ARTICLE IV
ALLOCATION OF PROFITS AND LOSSES; DISTRIBUTIONS
Section 4.1 Profit and Losses:
(a) The Profits and Losses of the Partnership shall be determined
and allocated with respect to each Fiscal Year of the Partnership as of, the end
of such year.
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(b) All Profits and Losses, other than those arising from a sale or
other disposition of all or any portion of the Project, shall be allocated to
the General Partner and to the Limited Partners in accordance with each
Partner's Percentage of Partnership Interest.
Section 4.2 Distributions of Operating Cash Flow: At the discretion of the
General Partner, the Operating Cash Flow of the Partnership shall be distributed
among the Partners. All distributions of Operating Cash Flow shall be
distributed to the Partners, pro-rata, in proportion to the Partner's Percentage
of Interest.
Section 4.3 Distributions of Capital Cash Flow: Distributions of Capital
Cash Flow shall be made as follows:
(i) First, to the Partners until such time as each Partner shall
have received distributions of Capital Cash Flow sufficient to reduce his
Capital Account to zero:
(ii) Then, on a pro rata basis, to the Partners in proportion to the
Partner's Percentage of Interest.
Section 4.4 Restrictions with Respect to Distributions: The General
Partner shall make the distributions required or permitted by this Article IV,
subject to the following limitations, restrictions and conditions:
(a) At the time of any distribution, the Partnership must have
available to it unencumbered cash funds sufficient for such distribution after
taking into account (except in the case of liquidation of the Partnership) the
amounts which should be set aside to provide for the Replacement Reserve Account
or other reasonable reserves for the continuing conduct of the business of the
Partnership and for normal working capital.
(b) No distribution shall be made by the Partnership if immediately
after such distribution the Partnership assets do not exceed all liabilities of
the Partnership, exclusive of liabilities to the Partners on account of their
Capital Contributions and liabilities to any General Partner and liabilities
resulting from Partnership Mortgages and Partnership Notes. For purposes of this
subparagraph all assets shall be valued at market value.
(c) Distributions shall not be required to be made more frequently
than quarterly during each year, but at least annually (within 2 months
following the end of each such year).
Section 4.5 No Interest on Distributions: If any Partner shall not
withdraw the whole or any part of his share of the Operating Cash Flow upon
distribution, such Partner shall not be entitled to receive any interest
thereon; nor shall any such sum(s) thus undrawn be deemed an increase in such
Partner's share of the capital of the Partnership without the express written
consent of all other Partners.
Section 4.6 Allocations Among Partners:
(a) Whenever a proportionate part of the Partnership Profit or Loss
is credited or charged to a Partner's account, every item of income, gain, loss,
deduction or credit entering into the computation of such Profit or Loss, or
applicable to the period during which such Profit or Loss is realized, shall be
considered credited or charged, the case may be, to such account in the same
proportion. As between a Limited Partner and his transferee, unless otherwise
agreed by them, Profits and Losses for any Fiscal Year shall be allocated on a
daily basis, and the transferee shall be allocated Profits and Losses with
respect to the period commencing with the day of transfer.
(b) Distributions to General Partner or Limited Partners pursuant to
Sections 4.2 and 4.3 shall be shared by such Partners in proportion to their
respective General Partners' Percentage or Limited Partners' Percentage and made
as such percentages shall appear of record on the Partnership's books maintained
by the General Partner at the time of the distribution. The General Partner and
the Partnership shall incur no liability for making distributions in accordance
with the provisions of the preceding sentence, whether or not the General
Partner or the Partnership has knowledge or notice of any transfer of ownership
of any Interests.
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Section 4.7 Minimum Allocations to General Partner. Notwithstanding
anything to the contrary in this Article 4, if at any time the allocation
provisions of this Agreement do not result in the General Partner being
allocated at least 1% of all of the Partnership's items of income, gain, loss,
deduction or credit, then this Section shall become operative and cause the
General Partner to be allocated pro rata so much more of each of those items as
will cause it to be allocated at all times 1% of those items.
ARTICLE V
RIGHTS, POWERS AND DUTIES OF General Partner
Section 5.1 Rights and Powers of General Partner: Except as may be
expressly limited by the provisions of this Agreement, the General Partner shall
have complete authority over and exclusive control and management of the
business and affairs of the Partnership and shall devote such time to the
Partnership as may be reasonably required for the achievement of its purposes.
If not otherwise specifically stated, and except as specifically authorized in
Section 1.7, the references to action by the General Partner or by the
Partnership shall mean only action as provided in this Section 5.1. In
connection with the management of the business and affairs of the Partnership,
the General Partner may employ on behalf of the Partnership any other persons to
perform services for the Partnership, including persons employed by, affiliated
with, or related to any Partner. The General Partner, in its sole discretion,
shall have the fullest power and authority permitted by law, and without
limiting its authority and powers, the General Partner, shall have the right,
if, as and when it deems necessary or appropriate, on behalf of the Partnership,
subject only to the terms and conditions of this Agreement:
(i) To acquire, operate, maintain, and improve (including capital
expenditures of, any type) the Project in such manner and on such terms and
conditions as the General Partner shall deem necessary or appropriate;
(ii) To exercise for the Partnership any and all rights, privileges
and powers available to the Partnership as holder of any Partnership property
including, without limitation, the refinancing, replacement, renewal,
consolidation, extension, modification and creation of encumbrances, mortgages
and other secured indebtedness on the Partnership property or any part thereof,
and the modification, cancellation, extension or waiver of instruments, rights,
options, and obligations pertaining to or affecting the Partnership property or
any part thereof, all upon such terms and conditions as it deems proper;
(iii) To borrow money for Partnership purposes, and in connection
with such borrowing to execute promissory note on behalf of the Partnership; to
mortgage, pledge or otherwise encumber the property and assets held by the
Partnership to secure the obligations of the Partnership, and in connection with
any such mortgage, to grant a confession of judgment on the part of Partnership
and include in such mortgage, pledge or other instrument of security, such
provision a may be required by any lender;
(iv) To consent to the initial execution, modification, renewal or
extension of any obligations, whether or not secured, or of any guarantees, or
of any terms or provisions of any such guaranty, or to the release of any
obligers under any such guaranty; to refrain from instituting suits or actions
against such obligers; and to pay or to abstain from the payment of taxes, water
rents, sewer charges, assessments, mortgage payments, insurance premiums, and
maintenance expenses, all at such time or times and upon such terms and
conditions and under such circumstances as the General Partner, in its sole
discretion, shall deem proper;
(v) To adjust, compromise, settle or refer to arbitration any claims
in favor of or against the Partnership or any nominee of the Partnership or any
property held by the Partnership or its nominee, and to institute, prosecute and
defend any legal proceedings or arbitration proceedings as the General Partner
shall deem advisable;
(vi) To perform or cause to be performed all of the Partnership's
obligations under any agreement to which the Partnership is a party;
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(vii) To execute, acknowledge and deliver any and all instruments in
connection with any or all of the foregoing;
(viii) To expend the capital and revenues of the Partnership in
furtherance of the Partnership's business;
(ix) To sell, transfer, assign, convey, trade, exchange, or
otherwise dispose of all or any portion of the real or personal property of the
Partnership upon such terms and conditions and for such consideration as the
General Partner deems appropriate;
(x) To delegate all or any of its duties hereunder and in
furtherance of any such delegation to appoint, employ, or contract with any
person the General Partner may in its sole discretion deem necessary, including
entities owned or controlled by the General Partner (including Affiliates of the
General Partner), or desirable for the transaction of the business of the
Partnership, which persons may, under the supervision of the General Partner,
perform any of the following or other acts or services for the Partnership as
the General Partner may approve, provided, however, that the General Partner
shall continue to be primarily responsible for the performance of all such
obligations; serve as the Partnership's advisor and consultant in connection
with policy decisions made by the General Partner; act as consultants,
accountants, correspondents, attorneys, brokers, escrow agents, or in any other
capacity deemed by the General Partner necessary or desirable; investigate,
select and, on behalf of the Partnership, conduct relations with persons acting
in such capacities and pay appropriate fees to, and enter into appropriate
contracts with, or employ, or retain services performed or to be performed by,
any of them in connection with the Project; and perform or assist in the
performance of administrative or managerial functions necessary in the
management of the Partnership;
(xi) To terminate, modify, enforce, continue or otherwise deal with
the Partnership Notes and Mortgages, to refinance or sell the Partnership
property, and to take any other action with respect to agreements made between
the Partnership and a lender or any Affiliate thereof;
(xii) Generally, to possess and exercise any and all of the rights,
powers and privileges of a General Partner under the laws of the State of
Georgia.
Section 5.2 Duties: The General Partner shall manage and control the
Partnership, its business and affairs, and to carry out the business of the
Partnership as set forth herein. The General Partner shall devote itself to the
business of the Partnership to the extent it deems necessary to conduct it and
shall render to the Limited Partners, whenever reasonably requested by any of
them, a just and faithful account of all dealings and transactions in relation
to the business of the Partnership. The General Partner shall execute such
further documents and take such further action as shall be appropriate to comply
with the requirements of the Act or other laws by which the Partnership is
bound. The General Partner shall not be required to devote full time to such
duties.
Section 5.3 Dealings with Third Parties: All rights and powers of the
Partnership generally and as specifically enumerated above, may be exercised by
the General Partner and any party dealing with the Partnership may rely upon the
actions of the General Partner exercising the rights and powers authorized by
this Agreement. No party dealing with the General Partner in relation to this
Partnership shall be obliged to see to the application of any money or property
loaned, paid, or transferred to the General Partner or to see that the terms of
this Partnership Agreement are complied with or to determine whether any action
or failure to act on the part of the General Partner is in accordance with or
authorized by the terms of this Partnership. Every instrument executed by the
General Partner shall be conclusively interpreted in favor of every person
acting thereon that (i) at the time of the delivery of such instrument this
Partnership was in full force and effect; (ii) said instrument was issued in
accordance with the terms and provisions of this Partnership; (iii) the General
Partner was duly authorized and empowered to execute such instrument. The
receipt given by it shall discharge said party or parties, and they shall not be
bound to see to the application of any such money or property or be answerable
for the loss or misapplication thereof.
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Should anyone ever question the authority of the General Partner to do any
of the things provided in this Article, and thereby bind the Limited Partners,
and specifically including the General Partner's authority to mortgage, pledge,
or otherwise encumber the property and assets of the Partnership, except as
provided in Section 5.4 herein, then and in that event, the Limited Partners do
by these presents hereby name, constitute and appoint the General Partner, as
their agent and attorney-in-fact, with full and complete authority to do any and
all of the things specified in this Article, including, but not limited to,
authority to confess judgement and waive appraisement, insofar as the same
affects said constituent, or the said Partnership, or any rights or interests
that it may have in any property, real, personal or mixed, to the same extant as
though said constituent personally executed the said instrument, and for the
further purposes and to the same extent as hereinafter set forth in Section 8.1.
Section 5.4 Restrictions on Authority of General Partner:
(a) In addition to other acts expressly prohibited by this Agreement
or by law, the General Partner shall not have any authority to:
(i) do any act in contravention of this Agreement;
(ii) do any act which would make it impossible to carry on the
ordinary business of the Partnership, except as contemplated in this Agreement;
(iii) execute or deliver any general assignment for the
benefit of the creditors of the Partnership;
(iv) possess Partnership property or assign the rights of the
Partnership in specific property for other than a Partnership purpose;
(v) admit a person as a General or Limited Partner except as
otherwise provided in this Agreement; or,
(vi) knowingly or willingly consent to any act (except an act
expressly permitted by this Agreement) which would cause the Partnership to
become an association taxable as a corporation.
(b) Without the written consent of the Partners owning a majority of the
Partnership Interest, the General Partner shall not take any of the following
actions on behalf or in the name of the Partnership:
(i) demolish or drastically alter the Project;
(ii) undertake any lease or other transaction outside the
ordinary course of business then being conducted by the Partnership;
(iii) admit additional Limited Partners after the full
subscription of the Limited Partnership Offering except as otherwise provided
for in Article XI.
Section 5.6 Compensation of General Partner:
(a) General: Except as expressly provided in this Agreement, the
General Partner shall receive no compensation for serving as General Partner.
(b) Management: As compensation for its management of the
Partnership business, the General Partner shall be entitled to its General
Partnership Interest as set forth on Exhibit "A" and such interest shall be
fully earned and nonrefundable when received.
Section 5.7 Tax Matters Partner. The General Partner is hereby designated
as the "Tax Matters Partner" in accordance with Section 6231(a)(7) of the Code
and, in connection therewith and in addition to all other
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powers given thereunder, shall have all other powers needed to fully perform
hereunder, including, without limitation, the power to retain all attorneys and
accountants of its choice and the right to settle any audits without the consent
of the Limited Partners. The designation made in this paragraph is hereby
expressly consented to by each Partner as an express condition to becoming a
Partner.
ARTICLE VI
RECORDS AND ACCOUNTING
Section 6.1 Books of Account: The General Partner shall keep or cause to
be kept complete and true books of account of the Partnership in accordance with
the accounting method followed by the Partnership for Federal income tax
purposes and otherwise in accordance with sound accounting principles and
procedures applied on a consistent basis, which shall reflect all Partnership
transactions and shall be appropriate and adequate for the Partnership's
business. Such books of account, records and documents of the Partnership shall
be kept at the principal place of business of the Partnership and each Limited
Partner and his authorized representatives shall have at all times, during
normal business hours and upon reasonable notice, free access to and the right
to inspect and copy, at his expense, such books of account.
Section 6.2 Financial Reports:
(a) As soon as practicable after the close of each fiscal year, but
in no event later than 75 days after the close of any such year, the General
Partner shall deliver to each Partner an annual financial unedited report of the
Partnership for such fiscal year, including a balance sheet, a profit and loss
statement and a statement showing distributions to the Partners and allocations
to the Partners of Partnership Profits or Losses (i.e., taxable income, gains,
losses, deductions, credits and items of tax preference), and such other
information as is reasonably available to the Partnership which may be helpful
in determining the amount of taxable income to be included by each Partner in
his federal, state and local income tax returns for such year. Such annual
statement shall also be provided to any person who was a Partner at any time
during the year covered by such annual statements.
(b) The General Partner shall came the Partnership's accountants to
prepare or review the federal, state and local tax returns of the Partnership
for each fiscal year and shall timely file such returns and such returns shall
be completed on the method of tax accounting deemed appropriate by the General
Partner in accordance with Section 6.5.
Section 6.3 Fiscal Year: The fiscal year of the Partnership for both
reporting and federal income tax purposes shall begin with the first day of
January and end on the 31st day of December in each calendar year.
Section 6.4 Banking: The funds of the Partnership shall be deposited in
such bank or banks as the General Partner shall deem appropriate. Such funds
shall be withdrawn only by the General Partner or its duly authorized agents.
All deposits and other funds not needed in the operations of the business of the
Partnership may be deposited in interest-bearing accounts or invested in
short-term United States Government or other governmental (state or local)
obligations or in certificates of deposit, master notes or other evidences of
indebtedness or "Money-Market Funds.
Section 6.5 Accounting Decisions and Tax Elections: All decisions as to
accounting matters and tax elections, except as specifically provided to the
contrary herein, required or permitted to be made by the Partnership shall be
made by the General Partner in its sole discretion. Such decisions may be based
on the advice of the Partnership's accountants, upon which the General Partner
may rely.
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ARTICLE VII
LIABILITY AND INDEMNIFICATION OF THE GENERAL PARTNER
Section 7.1 Return of Capital Contribution: Anything in this Agreement to
the contrary notwithstanding, the General Partner shall not be personally liable
for the return of the Capital Contributions of the Limited Partners, or any
portion thereof, it being expressly understood that any such return shall be
made solely from Partnership assets.
Section 7.2 Liability for Actions or Omissions: The General Partner shall
nor be liable, responsible or accountable in damages or otherwise to any of the
Partners or the Partnership for any act or omission of the General Partner, or
any of them, in good faith on behalf of the Partnership and in a manner
reasonably believed by the General Partner to be within the scope of the
authority granted to the General Partner by this Agreement. The foregoing shall
not relieve the General Partner of liability for fraud, gross negligence or
wilful misfeasance.
Section 7.3 Indemnification by Partnership:
(a) The Partnership shall and hereby does indemnify, defend and save
harmless the General Partner from and against any claim, loss, expense,
liability, action or demand incurred by the General Partner in respect of any
omission to act or of any act performed by the General Partner, in the good
faith belief that it was acting or refraining from acting within the scope of
its authority under this Agreement, on behalf of the Partnership or in
furtherance of the Partnership's interests, including, without limitation,
reasonable fees and expenses of litigation and appeal (including, without
limitation, reasonable fees and expenses of attorneys engaged by the General
Partner in defense of such act or omission).
(b) The General Partner shall not be entitled to any indemnity for
any loss sustained or fees or expenses incurred by a General Partner by reason
of the fraud, gross negligence or willful misfeasance of a General Partner.
ARTICLE VIII
POWER OF ATTORNEY
Section 8.1 Appointment:
(a) Each Limited Partner hereby makes, constitutes and appoints the
General Partner, and any successor General Partner, with full power of
substitution and resubstitution, his or its true and lawful attorney-in-fact for
him and in his name, place and stead and for his use and benefit, from time to
time:
(i) To file and record this Agreement and any separation
Certificate or amended Certificate which is required to be filed or which the
General Partner deems it is advisable to file;
(ii) To make, file and record, all agreements amending this
Agreement, as now or hereafter amended, that may be appropriate to reflect or
effect, as the case may be,
(A) a change of the name or the location of the
principal place of business of the Partnership;
(B) the Transfer or acquisition of any Interests by a
Limited Partner or a General Partner in any manner permitted by this Agreement;
(C) a person becoming a substituted Limited Partner of
the Partnership as permitted by this Agreement;
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(D) a change in any provision of this Agreement effected
by the exercise by any person of any right or rights hereunder; and
(E) the dissolution of the Partnership pursuant to this
Agreement:
(iii) To make such certificates, instruments and documents as
may be required by, or may be appropriate under Georgia law in connection with
the use of the name of the Partnership by the Partnership; and
(iv) To make such certificates, instruments and documents as
such Limited Partner may be required, or as may be appropriate for such Limited
Partner to make, by Georgia law to reflect:
(A) a change of name or address of such Limited Partner;
(B) any changes in or amendments of this Agreement, or
pertaining to the Partnership, of any kind referred to in this Section; and
(C) any other changes in or amendments of this Agreement
in accordance with Section 15.1 hereof;
(v) To make, file and record amendments of the Partnership
Agreement to comply with any requirements of the Code, or the regulations
promulgated thereunder, provided the same does not materially adversely affect
the rights of the Limited Partners.
(vi) To make, file and record any documents which may be
required in connection with borrowings by the Partnership, including, without
limitation, documents required by financial institutions, and including
correction of or insertions to any document executed by a Limited Partner.
(vii) To make, file and record any documents which may be
required in connection with any filings with federal or state securities
commissions or other federal or state authorities; and
(viii) To make, file and record any instrument which the
General Partner deems to be in the best interests of the Partnership to file and
which is not inconsistent with the provisions of this Agreement.
(b) Each of the agreements, certificates, instruments and documents
made pursuant to Section 8.1(a) shall be in such form as the General Partner and
counsel for the Partnership shall deem appropriate. The power conferred by this
Article to make agreements, certificates, instruments and documents, shall be
deemed to include without limitation the powers to sign, execute, acknowledge,
swear to, verify, deliver, file, record or publish the same.
(c) Each Limited Partner authorizes the General Partner as such
attorney-in-fact to take any further action which such General Partner shall
consider necessary or advisable in connection with any action taken pursuant to
this Section 8.1 hereby giving such General Partner as such attorney-in-fact
full power and authority to do and perform each and every act or thing
whatsoever requisite or advisable to be done in and about any action taken
pursuant to this Section 8.1, as fully as such Limited Partner might or could do
if personally present, and hereby ratifying and confirming all that the General
Partner as such attorney-in-fact shall lawfully do or cause to be done by virtue
of this Section 8.1, provided, however, that the power and authority granted in
this Article VIII shall not include the power or authority to vote on behalf of
a Limited Partner if it is granted by this agreement or by the Act and is not
otherwise precluded by this Agreement.
Section 8.2 Irrevocability; Manner of Exercise: The power of attorney
granted pursuant to Section 8.1:
(a) is a special power of attorney coupled with an interest and is
irrevocable;
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(b) may be exercised by a General Partner as such
attorney-in-fact, by listing all of the Limited Partners executing any
agreement, certificate, instrument or document with the single signature of such
General Partner acting as attorney-in-fact for all of them;
(c) shall survive the Transfer by a Limited Partner of the
whole or a portion of his Interests, except that where the purchaser, transferee
or assignee thereof with the consent of the General Partner is admitted as a
substituted Limited Partner, the power of attorney shall survive the Transfer
for the sole purpose of enabling such attorney-in-fact to execute, acknowledge
and swear to and file any such agreement, certificate, instrument or document
necessary to effect such substitution; and
(d) shall, to the extent permitted under the laws of the
domicile of such Limited Partner, survive the death, incapacity or incompetency
of the Limited Partner.
ARTICLE IX
LIMITED PARTNERS
Section 9.1 Negative Covenant: No Limited Partner shall be:
(a) Allowed to take part in the management or control of the
Partnership affairs, or to sign for or bind the Partnership, such power to vest
solely and exclusively in the General Partner;
(b) Entitled to be paid any salary or to have a Partnership drawing
account;
(c) Withdraw or reduce his Capital Contribution except as a result
of the dissolution of the Partnership or as otherwise provided by law;
(d) Cause the termination or dissolution of the Partnership by
consent or otherwise (including by consent under O.C.G.A. Section 14-9-801(2),
as may be amended from time to time) such right being specifically waived by the
Limited Partners; or
(e) Demand or receive property other than cash in return for his
Capital Contribution.
Section 9.2 Representations and Warranties:
(a) Each Limited Partner warrants and represents that (i) he is
acquiring his Limited Partnership Interests in the Partnership for investment
purposes only and exclusively for his own account, and that he has no agreement,
understanding, arrangement or intention to divide or share ownership of his
Limited Partnership Interests with anyone else or to resell, transfer or dispose
of all or any portion of such Interests to any other person, and (ii) he has
either (a) an individual net worth, or joint net worth with his spouse
(exclusive of houses, home furnishings and personal automobiles) which is in
excess of $l,000,000, and (b) individual income in excess of $200,000 for the
two most recent year and for foreseeable future tax years (without taking into
account the effect of any acquisition of the Partnership Interests).
(b) Each Limited Partner acknowledges:
(i) that he and/or his purchaser representative (if any) have
such knowledge and experience in financial and business matters that he is or
they are capable of evaluating the merits and risks of the investment involved
in the purchase of a Limited Partnership Interest in the Partnership and has so
evaluated same;
(ii) that he is aware that this investment is speculative and
represents a substantial risk of loss;
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(iii) that he is able to bear the economic risk of such
investment, even if it involves a complete loss of this investments;
(iv) that in connection with his purchase of Limited
Partnership Interests in the Partnership, he has been fully informed as to the
circumstances under which he is required to take and hold such Limited
Partnership Interests pursuant to the requirements of the Securities Act of 1933
(the "Securities Act"), and applicable state securities or "Blue Sky" laws; and
(v) that the General Partner has informed him that his Limited
Partnership Interests are not registered under the Securities Act or any Blue
Sky law and may not be transferred, assigned or otherwise disposed of unless
such Limited Partnership Interests are subsequently registered under the
Securities Act and any applicable Blue Sky laws, or exemptions from such
registration requirement are then available.
(c) Each Limited Partner understands:
(i) that the Partnership and the General Partner is under no
obligation to register such Limited Partnership Interests under the Securities
Act or under any Blue Sky law or to comply with any applicable exemption under
the Securities Act or under the Blue Sky law with respect to such Limited
Partnership Interests; and
(ii) that the Partnership will not be required to supply him
with any information necessary to enable him to make a sale of such Limited
Partnership Interests pursuant to Rule 144 under the Securities Act (assuming
such Rule is applicable and is otherwise available to him with respect to such
Limited Partnership Interests).
ARTICLE X
CHANGES IN GENERAL PARTNER
Section 10.1 Voluntary Withdrawal: Unless a General Partner which is not a
corporation will remain upon and after the Voluntary Withdrawal of another
General Partner, a General Partner shall not have the right to Voluntary
Withdraw from the Partnership unless the General Partner seeking to Voluntary
Withdraw finds a person or entity willing to accept the responsibility of the
management and control of the Partnership as a substitute General Patter
entitled to the fees and allocations as to which that General Partner is
entitled pursuant to Article IV, and nominates such person for approval by the
Partners where (i) such proposed successor General Partner has had or employs
persons who have had substantial experience in real estate in general, (ii) the
Partnership would not cease to be classified as a partnership for federal income
tax purposes if such proposed successor General Partner became a General Partner
of the Partnership, (iii) the withdrawal of a General Partner and his
replacement by the successor would not result in termination of the Partnership
pursuant to Section 708(b) of the Code. A nomination shall be approved if,
within ninety (90) days after mailing the nomination, the General Partner
receives written approval (including a facsimile, telegraph or telex message)
from a majority of all Partners. A General Partner may Voluntary Withdraw from
the Partnership even if the person nominated as successor General Partner is not
approved by the Partners provided (a) the General Partner advises the Partners
when nominating a successor General Partner that it will Voluntary Withdraw
whether or not the successor General Partner is approved, and (b) the date of
retirement, which shall be specified in the aforesaid notice, is not less than
120 days after the mailing of the aforesaid notice.
If a General Partner Voluntarily Withdraws from the Partnership other than
in accordance with the foregoing provisions or if, in any such Voluntary
Withdrawal, the conditions in (i) through (iii) of this Section are not
satisfied, then
(a) the measure of the damages resulting from such retirement shall
be the after-tax effects on the Partners of any reclassification of the
Partnership as an association taxable as a corporation for federal income tax
purposes or from any termination of the Partnership under Section 708(b) of the
Code resulting from such
16
retirement and the reasonable expenses of defending against a reclassification
or alleged termination of the Partnership for federal income tax purposes
resulting from such retirement; and
(b) the withdrawing General Partner shall be entitled only to such
distributions under Article IV hereof as have become due and are unpaid on such
retirement date. Thereafter, it shall have no right to any distributions of any
kind from the Partnership absent an express agreement to the contrary.
Section 10.2 Admission of General Partner: No person shall be admitted as
a substitute or additional General Partner without the prior written consent of
all General Partners.
ARTICLE XI
TRANSFER OF PARTNERSHIP INTERESTS
ATTENTION GEORGIA RESIDENTS
"THESE SECURITIES HAVE BEEN ISSUED OR SOLD IN RELIANCE IN PART ON PARAGRAPH (13)
OF CODE SECTION 10-5-9 OF THE 'GEORGIA SECURITIES ACT OF 1973,' AND MAY NOT BE
SOLD OR TRANSFERRED EXCEPT IN A TRANSACTION WHICH IS EXEMPT UNDER SUCH ACT OR
PURSUANT TO AN EFFECTIVE REGISTRATION UNDER SUCH ACT."
Section 11.1 Transfer of Partnership Interest of General Partner: A
General Partner may transfer, whether voluntarily or by operation of law, at
judicial sale or otherwise, pledge, hypothecate or grant a security interest in
all or any portion of his Partnership Interest, but no person acquiring or
succeeding the such interest shall become or have the right to become a
substitute or additional General Partner except as provided in Article X.
Section 11.2 Transfer of Limited Partners' Interest: The Withdrawal of a
Limited Partner, the admission of a Limited Partner or the assignment by a
Limited Partner of his interests shall not dissolve or terminate the
Partnership.
(a) Requirement for Transfer: Except as otherwise provided in
Sections 11.2(b), 11.3 and 11.4, a Limited Partner or the transferee of a
Limited Partner may transfer all or part of his Interests, provided, unless
otherwise consented to by the General Partner, (i) that the transferee, if an
individual, is at least 21 years of age, (ii) that the transferee executes an
instrument reasonably satisfactory to the General Partner accepting and adopting
the provisions and agreements set forth herein, and (iii) the General Partner
shall consent to such Transfer, which consent may be given or withheld in the
General Partner' sole discretion, provided, however, that such consent shall be
withheld if the transferor Limited Partner (other than a transferor Limited
Partner who is also a General Partner) does not obtain a legal opinion,
acceptable to counsel for the Partnership, that (1) such Transfer would not
result in the close of the Partnership's taxable year with respect to all
Partners, impair the ability of the Partnership to be taxed as a partnership,
cause the termination of the Partnership within the meaning of Section 708(b) of
the Code, or cause the termination of its status as a partnership under the
Code, and (2) such Transfer does not violate any provision of any Federal or
state securities law.
(b) Requirement for Substitute: No transferee of the whole or a
portion of a Limited Partner's Limited Partnership Interest shall have the right
to become a Substituted Limited Partner in place of his assignor unless and
until all of the following conditions are satisfied:
(i) A duly executed and acknowledged written instrument of
transfer approved by the General Partner has been filed with the Partnership
setting forth the intention of the transferor that the transferee become a
Substituted Limited Partner in his place.
17
(ii) The transferor and transferee execute and acknowledge
such other instrument as the General Partner may reasonably deem necessary or
desirable to effect such substitution, including the written acceptance and
adoption by the transferee of the provisions of this Agreement.
(iii) The written consent of the General Partner to such
substitution shall be obtained, the granting or denial of which shall be within
the sole and absolute discretion of the General Partner.
(iv) A reasonable transfer fee has been paid to the
Partnership sufficient to cover all reasonable expenses connected with the
transfer and substitution.
(v) An appropriate amendment of the Certificate has been duly
filed and recorded. The General Partner agree to file such amendment and cause
it to be recorded promptly after the conditions specified in subparagraphs (i)
through (iv) above have been satisfied.
(vi) The Partnership has received an opinion of counsel, at
the request of the General Partner, satisfactory to the Partnership and its
counsel that such transfer can be made without registration under federal or
state Securities Laws together with a written representation and warranty
identical to the representation and warranty contained in Section 9.2 in its
entirety.
(c) The Partnership shall make an appropriate notation in the
records of the Partnership describing the limitations on resale contained in
section 11.2.
Any Transfer, pledge or other disposition of the Interests made or
attempted in contravention of the restrictions of this Section 11.2 is void.
Section 11.3 Death, Bankruptcy or Incompetence of a Limited Partner: The
death, bankruptcy or adjudication of incompetence of a Limited Partner will not
terminate the Partnership.
(a) In the event of the death or legal incompetency of an individual
Limited Partner, except as hereinafter provided in this Section 11.3, his
Representative shall succeed to his Interests and shall be liable for all the
liabilities and obligations of such Limited Partner under this Agreement, but
shall have the right to become a Substituted Limited Partner only in accordance
with the provisions of Section 11.2. For the purpose of settling the estate of
the deceased Limited Partner, the Representative shall have only such rights of
a Limited Partner as are necessary for such purpose.
(b) Upon the bankruptcy, insolvency, dissolution or other cessation
to exist as a legal entity of a Limited Partner who is not an individual, the
authorized representative of such entity shall have all the rights and
obligations of such Limited Partner and such power as such entity possesses to
constitute an assignee as a successor of such Interest and to join with such
assignee in making application to substitute such assignee as a Limited Partner.
Section 11.4 Effectiveness of Transfer:
(a) The Transfer by a Limited Partner or a transferee of a Limited
Partner, with the consent of the General Partner, of all or part of his
Interests shall become effective on the first day of the month following receipt
by the General Partner of evidence of such Transfer in form and substance
reasonably satisfactory to the General Partner and a transfer fee sufficient to
cover all reasonable expenses of the Partnership connected with such Transfer,
and provided that the General Partner have consented to such Transfer in
accordance with Section 11.2; provided further that the General Partner may, in
their sole discretion, establish an earlier effective date for the Transfer if
requested to do so by the transferor or transferee.
(b) No Transfer of Partnership Interests or any part thereof which
is in violation of this Article shall be valid or effective and the Partnership
shall not recognize the same for the purposes of allocating Profits and Losses,
making distributions of Distributable Cash or Sale or Refinancing Proceeds,
return of Capital Contribution
18
or other distribution with respect to such Partnership Interests, or part
thereof. The Partnership may enforce the provisions of this Article either
directly or indirectly or through its agents by refusing to register or Transfer
or permit the registration or Transfer on its books of any proposed Transfer not
in accordance with this Article XI.
(c) The Partnership shall, from such time as Partnership Interests
are registered in the name of the transferee on the Partnership's books in
accordance with the above provisions, pay to the transferee all further
distributions or other compensation by way of income or return of capital, on
account of the Partnership Interest transferred. Until the registration or
Transfer on the Partnership's books, the General Partner may proceed as if no
Transfer has occurred.
Section 11.5 Purchase of Interest by General Partner: If a General Partner
acquires an Interest as a Limited Partner, said General Partner shall, with
respect to such Interest, enjoy all of the rights and, except as provided in
Section 11.2(a), be subject to all of the obligations and duties of a Limited
Partner, provided, however, a General Partner shall not acquire directly or
indirectly (within the meaning of Section 318 of the Code) such Interests, if
such acquisition would give the General Partner eighty (80%) per cent or more
(but less than one hundred (100%) per cent) of the Interests owned by Limited
Partners, and provided further that such acquisition of such Interests shall not
reduce any liability of such General Partner under this Agreement.
ARTICLE XII
DISSOLUTION AND SUCCESSOR PARTNERSHIP
Section 12.1 Dissolution of Partnership: The Partnership shall dissolve on
October 1, 2020, or upon the earlier occurrence of any of the following events:
(a) the Involuntary Withdrawal of the General Partner if no General
Partner remains after such Involuntary Withdrawal or an event of Voluntary
Withdrawal in respect of any General Partner unless there remains a General
Partner of the Partnership after the Voluntary Withdrawal or all of the
remaining Partners agree in writing within ninety (90) days after such event of
Voluntary Withdrawal to continue the business of the Partnership and to the
appointment of one (1) or more General Partners, if necessary;
(b) upon the mutual agreement of the General Partner and Limited
Partners having an aggregate Limited Partner Percentage of at least seventy-five
(75%) percent setting forth their determination that the Partnership should be
dissolved;
(c) the sale or other disposition of the Project, unless the
Partnership receives therefrom a purchase money note or unless the disposition
involves a like-kind exchange of property in which events the Partnership shall
continue until the note is fully paid or the property received in exchange is
sold or otherwise disposed of without receipt of a purchase money note or an
exchange of property; or
(d) The vote of the Partners owning a majority of the Partnership
Interest to remove the General Partner "for cause" unless the Limited Partners
owning a majority of the Limited Partnership Interest also elect to admit one or
more substitute General Partners and to continue the business of the
Partnership. For the purpose of this sub-section (d), "for cause" shall mean (i)
willful and continuing or repeated failure or refusal by the General Partner to
perform substantial duties, or (ii) material abuse of office or malfeasance or
gross negligence by the General Partner, or if the General Partner should be
convicted of, plead guilty to, or confess to fraud, misappropriation,
embezzlement or commission of any felony in connection with Partnership property
or the Partnership; or
(e) otherwise by operation of law.
Section 12.2 Successor Partnership: If the Partnership is dissolved or to
be dissolved by reason of the Voluntary Withdrawal of all of the General
Partner, and any Limited Partner shall deliver to each of the other
19
Limited Partners within Thirty (30) days of such Voluntary Withdrawal, a written
notice demanding that a meeting of Limited Partners be held at the principal
place of business of the Partnership at the time set forth in such notice (which
shall be not less than ten (10) nor more than thirty (30) days after the date of
such notice), the Limited Partners shall hold such meeting. Limited Partners
attending such meeting, either in person or by proxy, and having an aggregate
Limited Partner Percentage of not less than one-hundred (100%) percent of the
Limited Partnership Percentage held by Limited Partners may continue the
business of the Partnership and reconstitute the Partnership as a successor
limited partnership with a new General Partner having the capacity to serve as
such and who is able to meet any requirements then imposed by the Code or any
rulings or regulations thereunder with respect to General Partner of limited
partnerships in order that the Partnership not become an association taxable as
a corporation. If such Limited Partners shall exercise such right to continue
the business of the Partnership, the person appointed by them as the new General
Partner and each of the Limited Partners shall execute an Agreement of Limited
Partnership and shall cause to be filed a Certificate of Limited Partnership.
Both the Certificate and Agreement of Limited Partnership shall contain
substantially the same provisions as those contained herein, except that the new
General Partner shall be allocated such share of the profits, losses and
distributions of the Partnership or shall be paid such fees, as the Limited
Partners appointing such new General Partner shall determine. Such new General
Partner shall indicate his acceptance of the appointment by the execution of
each of such Certificate and Agreement of Limited Partnership.
ARTICLE XIII
LIQUIDATION OF PARTNERSHIP
Section 13.1 Procedure: Unless the business of the Partnership is
continued pursuant to Section 12.2, upon the dissolution of the Partnership, the
General Partner or the person required by law to wind up the Partnership's
affairs shall cause the cancellation of this Agreement and the following shall
be accomplished:
(i) a statement setting forth the assets and liabilities of the
Partnership as at the date of dissolution shall be prepared by the Partnership's
accountant or firm of accountants and such statement shall be furnished to all
of the Partners;
(ii) the assets of the Partnership shall be liquidated as promptly
as possible, but in an orderly and businesslike manner so as not to involve
undue sacrifice;
(iii) any gain or loss realized by the Partnership upon the sale or
other disposition of its property and assets shall be allocated among the
Partners as provided in Article IV.
Section 13.2 Distribution Upon Dissolution: The proceeds of sale and all
other assets of the Partnership shall be applied and distributed as follows, and
in the following order of priority:
(i) First, to the creditors of the Partnership (including the
General Partner and Affiliates thereof) in payment of the unpaid Liabilities of
the Partnership to the extent required under agreements with such creditors and
the reasonable expenses of liquidation;
(ii) Second, to the setting up of any reserves which the General
Partner or the person required by law to wind up the Partnership's affairs may
deem reasonably necessary for any contingent or unforeseen liabilities or
obligations of the Partnership arising out of or in connection with the
Partnership's business. Said reserves may, in the discretion of the General
Partner or the person required by law to wind up the Partnership's affairs, be
paid over to an escrow agent selected by them to be held by it as escrowee for
the purpose of disbursing such reserves in payment of any of the aforementioned
contingencies, to the expiration of such period as the General Partner shall
deem advisable, to distribute the balance thereafter remaining as hereinafter
provided in this section;
(iii) Third, to the Partners in the same manner as is provided for
with respect to distribution of Capital Cash flow in Article IV.
20
ARTICLE XIV
PARTNER'S ACTIVITIES
Any Limited Partner, the General Partner, any Affiliate, any shareholder,
officer, director or employee thereof may, notwithstanding the existence of this
Agreement, engage in or possess an interest in any other business or venture of
every nature and description, independently or with others including, but not
limited to, the ownership, financing, leasing, operation, management, brokerage
and development of real property, whether the same be competitive with the
Partnership or otherwise, without having or incurring any obligation to offer
any interest in such activities to the Partnership or any party hereto. Neither
this Partnership Agreement nor any activity undertaken pursuant hereto shall
prevent the General Partner or any Limited Partner from engaging in such
activities, or require the General Partner to permit the Partnership or any
Limited Partner to participate in any such activities and as a material part of
the consideration for the General Partner's execution hereof and admission of
each Limited Partner, each Limited Partner hereby waives, relinquishes and
renounces any such right or claim of participation. Neither the Partnership nor
any General or Limited Partner shall have the right to the income of proceeds
derived from any party's other business interest, even if that business interest
is competitive with the Partnership business and such business interest shall
not be deemed wrongful or improper.
ARTICLE XV
GENERAL PROVISIONS
Section 15.1 Amendments:
(a) Amendments may be made to this Agreement from time to time by
the General Partner without the consent of the Limited Partners:
(i) to add to the representations, duties or obligations of
the General Partner
(ii) to cure any ambiguity or correct or supplement any
provision hereunder which may be inconsistent with any other provision
hereunder;
(iii) to delete or add any provision to this Agreement
required or requested to be so deleted or added by the Internal Revenue Service,
staff of the Securities and Exchange Commission, or any other Federal Agency or
by any state "Blue Sky" Commissioner or similar such official, or any lender
(other than the General Partner or an Affiliate thereof) or surety even though
such deletion or addition may adversely affect rights of Limited Partners (but
no change in the rights of Limited Partners to profits, losses or cash
distributions or to make Capital Contributions shall be made without the consent
of all Limited Partners);
(iv) to modify the allocation provisions in Articles III and
IV to comply with final Regulations subsequently issued by the Treasury
Department. The intent of such change will be to conform as closely as practical
with the present provisions Articles III and IV.
(b) Except as otherwise provided herein this Agreement may be
modified or amended only with the written consent of the General Partner and
Limited Partners owning at least fifty one (51%) per cent of the Limited
Partnership Interests.
(c) Notwithstanding any provisions of the preceding paragraphs to
the contrary, no modification or amendment of this Agreement, without the prior
written consent of all the Partners, shall:
(i) enlarge, detract from or otherwise modify the purposes of
the Partnership, or the character of its business, as set forth in Section 1.7;
21
(ii) impose or create any new or additional liability on any
Limited Partner or enlarge the obligations of any Partner or make contributions
to the capital of the Partnership as provided in this Agreement;
(iii) enlarge, detract from or otherwise modify any
obligations of the General Partner as provided in this Agreement;
(iv) alter the order of distribution and the allocations of
distributions and profits and losses set forth in this Agreement;
(v) alter the Partnership in such a manner as will result in
the Partnership no longer being classified as a "Partnership" for Federal income
tax purposes; or
(vi) modify or amend this Section 15.1 or any other provision
of this Agreement which requires the consent, action or approval of the Limited
Partners.
(d) If this Agreement shall be amended as a result of adding or
substituting a Limited Partner, the amendment to this Agreement shall be signed
by all General Partners and by the person to be substituted or added (or his
attorney-in-fact) and, if a Limited Partner is to be substituted, by the
assigning Limited Partner or his attorney-in-fact. If this Agreement shall be
amended to reflect the designation of an additional or successor General
Partner, such amendment shall be signed by all General Partner and by such
additional or successor General Partner. If this Agreement shall be amended to
reflect the withdrawal of a General Partner and the business of the Partnership
is continued, such amendment shall be signed by the remaining or successor
General Partner.
(e) In making any amendments, the General Partner shall prepare all
required documentation and make all official filings and publications as are
required by its undertakings and the other persons affected by such amendment
shall cooperate with the General Partner to the extent reasonably necessary to
enable the General Partner to meet their obligations.
Section 15.2 Complete Agreement: This Agreement sets forth all of the
promises, agreements, conditions, understandings, warranties and representations
among the parties hereto with respect to the Partnership, the Partnership
business and the property of the Partnership, and there are no promises,
agreements, conditions, understandings, warranties or representations, oral or
written, express or implied, among them other than as set forth in this
Agreement and in the other agreements referred to in this Section 15.2.
Section 15.3 Meetings and Voting: All decision and action of the
Partnership may be taken by the Partners entitled to participate therein by
submitting notices to the Partners entitled to participate in such decisions or
actions and obtaining the written consent of the requisite number of percentage
of Partners. There shall be no meetings of the Partnership, except pursuant to
Section 12.2 hereof.
Section 15.4 Notices: Any notice, payment, demand or communication
required or permitted to be given by any provision of this Agreement shall be in
writing and shall be deemed to have been delivered and given for all purposes
(a) if delivered personally to the party or to an officer of the party to whom
the same is directed, or (b) whether or not the same is actually received, if
sent by registered or certified mail, postage and charges Prepaid, addressed:
(i) if to a General Partner, to his address set forth in Section 1.5 or to such
other address as the General Partner may from time to time specify by written
notice to the Partners, and (ii) if to a Limited Partner, at such Limited
Partner's address set forth on the signature pages hereto, or to such other
address as such Limited Partner may from time to time specify by written notice
to the General Partner. Any such notice shall be deemed to be given as of the
date so delivered, if delivered personally, or as of the date on which the same
was deposited in a regularly maintained receptacle for the deposit of United
Stares mail, addressed and sent as aforesaid. Any such notice may at any time be
waived by the person entitled to receive such notice.
Section 15.5 Counterparts: This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original copy and all of
which together shall constitute one agreement binding on all parties
22
hereto, notwithstanding that all the parties shall not have signed the same
counterpart, except that no counterpart shall be binding unless signed by all
General Partner.
Section 15.6 Section Headings: The headings in this Agreement are inserted
for convenience and identification only and are in no way intended to describe,
interpret, define, or limit the scope, extent or intent of this Agreement or any
provisions hereof.
Section 15.7 Pronouns and Plurals: All pronouns used herein shall be
deemed to refer to the masculine, feminine, neuter, singular or plural as the
identity of the person or persons, or entity or entities, may require in the
context, and the singular form of nouns, pronouns and verbs shall include the
plural, and vice versa, whichever the context may require.
Section 15.8 Successors: Subject to the limits on transferability and
assignability contained in this Agreement, each and all of the covenants, terms,
provisions and agreements contained in this Agreement shall be binding, upon and
inure to the benefit of the successors, heirs, and assigns of the respective
parties hereto.
Section 15.9 Applicable Law: This Agreement shall be construed and
enforced in accordance with the laws of the State of Georgia and the Georgia
Revised Uniform Limited Partnership Act, without regard to the choice of law
principles thereof, as now in effect shall govern and supersede any provision of
this Agreement which would otherwise be in violation of such Act.
Section 15.10 Time of Essence; Number of Days. Time is of the essence in
this Agreement. In computing the number of days for purposes of this Agreement,
all days shall be counted, including Saturdays, Sundays, and holidays; provided,
however, that if the final day of any time period falls on a Saturday, Sunday,
or holiday, then the final day shall be deemed to be the next day which is not a
Saturday, Sunday or holiday.
Section 15.11 Severability: Every provision of this Agreement is intended
to be severable. If any term or provision hereof is illegal or invalid for any
reason whatsoever, such illegality or invalidity shall not affect the validity
of the remainder of this Agreement.
Section 15.12 Waiver of Action for Partition: Each of the Partners
irrevocably waives during the term of the Partnership and during the period of
its liquidation following any dissolution, any right that such Partner may have
to maintain any action for partition with respect to any of the assets of the
Partnership.
Section 15.13 Interpretation. No provision of this Agreement is to be
interpreted for or against any party because that party or that party's legal
representative drafted such provision.
23
IN WITNESS WHEREOF, the General Partner has executed this Agreement as of
the day and year first written. Each of the Limited Partners has executed this
Agreement by a separate Limited Partner's signature page hereto.
GENERAL PARTNER:
Little Rock Lodging Associates, Inc.
By: /s Robert S. Cole
---------------------------------
Robert S. Cole
President
Attested:
s/ Robert M. Flanders
---------------------------------
Robert M. Flanders
Secretary
24
Little Rock Lodging Associates I, Limited Partnership
EXHIBIT A
CAPITAL
GENERAL PARTNER: UNITS CONTRIBUTION
- ---------------- ----- ------------
Little Rock Lodging Associates, Inc., 1 $ 18,935
an Arkansas corporation
c/o Impac Hotel Group
The Lenox Building - Suite 1220
3399 Peachtree Road N.E
Atlanta, Georgia 30326
LIMITED PARTNERS
Impac Hotel Development, Inc., 28 $ 530,180
a Delaware corporation
c/o Impac Hotel Group
The Lenox Building - Suite 1220
3399 Peachtree Road N.E
Atlanta, Georgia 30326
House Family Limited Partnership, 5 $ 94,675
a Kentucky limited partnership
c/o Earnest Matt House, General Partner
510 South Main Street
London, Kentucky 40741
ProTrust Properties V, Ltd., 60 $1,136,100
a Kentucky limited partnership
771 Corporate Dr.- Suite 101
Lexington, KY 40503
c/o ProTrust
3399 Peachtree Road - Suite 2000
Atlanta, Georgia 30326
RFG Associates XIII, 5 $ 94,675
a New York general partnership
c/o Mr. Mark Paganelli
190 Linden Oaks Drive - Suite B
Rochester, New York 14625
CAPITAL
UNITS CONTRIBUTION
----- ------------
Echota Fabrics, Inc., 1 $ 18,935
a Georgia corporation
c/o Joel Ostuw
1394 U.S. 41 North
Calhoun, Georgia 30701
-2-
LIMITED PARTNER'S SIGNATURE PAGE
1. The undersigned specifically adopts and approves each and every
provision of the Agreement of Limited Partnership of Little Rock Lodging
Associates I. Limited Partnership to which this Signature Page is attached,
including, but not by way of limitation, the power of attorney to the General
Partner.
2. The undersigned acknowledges that until his Signature Page has been
executed by the General Partner and attached to a master copy of the Agreement
of Limited Partnership, there will be no acceptance of the undersigned as a
Limited Partner. Upon execution of this Signature Page by the General Partner,
the undersigned will become a Limited Partner.
3. This Signature Page has been executed in duplicate by the undersigned
and one executed copy of this Signature Page will be attached to the
undersigned's copy of the Agreement of Limited Partnership. It is agreed that
the other executed copy of this Signature Page may be attached to a master copy
of the Agreement of Limited Partnership together with the Signature Pages which
may be executed by other persons.
4. Under penalties of perjury, the undersigned certifies that (i) the
number shown on this form is the undersigned's correct taxpayer identification
number, (ii) the undersigned is not subject to backup withholding because (A)
the undersigned has not been notified that the undersigned is subject to backup
withholding as a result of a failure to report all interest or dividends or (B)
the Internal Revenue Service has notified the undersigned that the undersigned
is no longer subject to backup withholding and (iii) the undersigned is not a
foreign person within the meaning of sections 1445 and 1446 of the Internal
Revenue Code of 1986, as amended, and the regulations promulgated thereunder.
IN WITNESS WHEREOF, this Signature Page has been executed by the
undersigned this 7th day of October, 1996.
LIMITED PARTNER:
/s/ Joel Ostuw
-------------------------------
Signature
Joel Ostuw/Echota Fabrics, Inc.
-------------------------------
Name, Printed or Typed
ACCEPTED:
Little Rock Lodging Associates, Inc., -------------------------------
General Partner Street Address
By: /s/ Robert S. Cole
---------------------------------- -------------------------------
City, State and Zip Code
Title:
------------------------------- -------------------------------
Taxpayer Identification Number
Date:
--------------------------------
LIMITED PARTNER'S SIGNATURE PAGE
1. The undersigned specifically adopts and approves each and every
provision of the Agreement of Limited Partnership of Little Rock Lodging
Associates I. Limited Partnership to which this Signature Page is attached,
including, but not by way of limitation, the power of attorney to the General
Partner.
2. The undersigned acknowledges that until his Signature Page has been
executed by the General Partner and attached to a master copy of the Agreement
of Limited Partnership, there will be no acceptance of the undersigned as a
Limited Partner. Upon execution of this Signature Page by the General Partner,
the undersigned will become a Limited Partner.
3. This Signature Page has been executed in duplicate by the undersigned
and one executed copy of this Signature Page will be attached to the
undersigned's copy of the Agreement of Limited Partnership. It is agreed that
the other executed copy of this Signature Page may be attached to a master copy
of the Agreement of Limited Partnership together with the Signature Pages which
may be executed by other persons.
4. Under penalties of perjury, the undersigned certifies that (i) the
number shown on this form is the undersigned's correct taxpayer identification
number, (ii) the undersigned is not subject to backup withholding because (A)
the undersigned has not been notified that the undersigned is subject to backup
withholding as a result of a failure to report all interest or dividends or (B)
the Internal Revenue Service has notified the undersigned that the undersigned
is no longer subject to backup withholding and (iii) the undersigned is not a
foreign person within the meaning of sections 1445 and 1446 of the Internal
Revenue Code of 1986, as amended, and the regulations promulgated thereunder.
IN WITNESS WHEREOF, this Signature Page has been executed by the
undersigned this 8th day of October, 1996.
LIMITED PARTNER:
RFG Associates III
By: JML Associates.
/s/ Mark Paganelli, Vice President
----------------------------------
Signature
Mark Paganelli
----------------------------------
Name, Printed or Typed
ACCEPTED:
190 Linden Oaks Drive
Little Rock Lodging Associates, Inc., ----------------------------------
General Partner Street Address
By: /s/ Robert S. Cole Rochester, New York 14625
---------------------------------- ----------------------------------
City, State and Zip Code
Title: President Applied For
------------------------------- ----------------------------------
Taxpayer Identification Number
Date: Oct 8, 1996
--------------------------------
LIMITED PARTNER'S SIGNATURE PAGE
1. The undersigned specifically adopts and approves each and every
provision of the Agreement of Limited Partnership of Little Rock Lodging
Associates I. Limited Partnership to which this Signature Page is attached,
including, but not by way of limitation, the power of attorney to the General
Partner.
2 The undersigned acknowledges that until his Signature Page has been
executed by the General Partner and attached to a master copy of the Agreement
of Limited Partnership, there will be no acceptance of the undersigned as a
Limited Partner. Upon execution of this Signature Page by the General Partner,
the undersigned will become a Limited Partner.
3. This Signature Page has been executed in duplicate by the undersigned
and one executed copy of this Signature Page will be attached to the
undersigned's copy of the Agreement of Limited Partnership. It is agreed that
the other executed copy of this Signature Page may be attached to a master copy
of the Agreement of Limited Partnership together with the Signature Pages which
may be executed by other persons.
4. Under penalties of perjury, the undersigned certifies that (i) the
number shown on this form is the undersigned's correct taxpayer identification
number, (ii) the undersigned is not subject to backup withholding because (A)
the undersigned has not been notified that the undersigned is subject to backup
withholding as a result of a failure to report all interest or dividends or (B)
the Internal Revenue Service has notified the undersigned that the undersigned
is no longer subject to backup withholding and (iii) the undersigned is not a
foreign person within the meaning of sections 1445 and 1446 of the Internal
Revenue Code of 1986, as amended, and the regulations promulgated thereunder.
IN WITNESS WHEREOF, this Signature Page has been executed by the
undersigned this 1 day of October, 1996.
LIMITED PARTNER:
/s/ Robert M. Flanders
-------------------------------
Signature
Robert M. Flanders
-------------------------------
Name, Printed or Typed
ACCEPTED:
3445 Peachtree Rd NE
Little Rock Lodging Associates, Inc., -------------------------------
General Partner Street Address
By: /s/ Robert S. Cole Atlanta, GA 30326
---------------------------------- -------------------------------
City, State and Zip Code
Title: President [ILLEGIBLE]
------------------------------- -------------------------------
Taxpayer Identification Number
Date: Oct 8, 1996
--------------------------------
LIMITED PARTNER'S SIGNATURE PAGE
1. The undersigned specifically adopts and approves each and every
provision of the Agreement of Limited Partnership of Little Rock Lodging
Associates I. Limited Partnership to which this Signature Page is attached,
including, but not by way of limitation, the power of attorney to the General
Partner.
2 The undersigned acknowledges that until his Signature Page has been
executed by the General Partner and attached to a master copy of the Agreement
of Limited Partnership, there will be no acceptance of the undersigned as a
Limited Partner. Upon execution of this Signature Page by the General Partner,
the undersigned will become a Limited Partner.
3. This Signature Page has been executed in duplicate by the undersigned
and one executed copy of this Signature Page will be attached to the
undersigned's copy of the Agreement of Limited Partnership. It is agreed that
the other executed copy of this Signature Page may be attached to a master copy
of the Agreement of Limited Partnership together with the Signature Pages which
may be executed by other persons.
4. Under penalties of perjury, the undersigned certifies that (i) the
number shown on this form is the undersigned's correct taxpayer identification
number, (ii) the undersigned is not subject to backup withholding because (A)
the undersigned has not been notified that the undersigned is subject to backup
withholding as a result of a failure to report all interest or dividends or (B)
the internal Revenue Service has notified the undersigned that the undersigned
is no longer subject to backup withholding and (iii) the undersigned is not a
foreign person within the meaning of sections 1445 and 1446 of the Internal
Revenue Code of 1986, as amended, and the regulations promulgated thereunder.
IN WITNESS WHEREOF, this Signature Page has been executed by the
undersigned this 7 day of October, 1996.
LIMITED PARTNER:
HOUSE FAMILY LIMITED PARTNERSHIP
/s/ Earnest Matt House GENERAL PARTNER
--------------------------------------
Signature
EARNEST MATT HOUSE
--------------------------------------
Name, Printed or Typed
ACCEPTED:
1195 West Laurel Road
Little Rock Lodging Associates, Inc., -------------------------------------
General Partner Street Address
By: /s/ Robert S. Cole LONDON, KENTUCKY 40741
---------------------------------- --------------------------------------
City, State and Zip Code
Title: President 61-1278912
------------------------------- --------------------------------------
Taxpayer Identification Number
Date: Oct 8, 1996
-------------------------------
LIMITED PARTNER'S SIGNATURE PAGE
1. The undersigned specifically adopts and approves each and every
provision of the Agreement of Limited Partnership of Little Rock Lodging
Associates I. Limited Partnership to which this Signature Page is attached,
including, but not by way of limitation, the power of attorney to the General
Partner.
2. The undersigned acknowledges that until his Signature Page has been
executed by the General Partner and attached to a master copy of the Agreement
of Limited Partnership, there will be no acceptance of the undersigned as a
Limited Partner. Upon execution of this Signature Page by the General Partner,
the undersigned will become a Limited Partner.
3. This Signature Page has been executed in duplicate by the undersigned
and one executed copy of this Signature Page will be attached to the
undersigned's copy of the Agreement of Limited Partnership. It is agreed that
the other executed copy of this Signature Page may be attached to a master copy
of the Agreement of Limited Partnership together with the Signature Pages which
may be executed by other persons.
4. Under penalties of perjury, the undersigned certifies that (i) the
number shown on this form is the undersigned's correct taxpayer identification
number, (ii) the undersigned is not subject to backup withholding because (A)
the undersigned has not been notified that the undersigned is subject to backup
withholding as a result of a failure to report all interest or dividends or (B)
the Internal Revenue Service has notified the undersigned that the undersigned
is no longer subject to backup withholding and (iii) the undersigned is not a
foreign person within the meaning of sections 1445 and 1446 of the Internal
Revenue Code of 1986, as amended, and the regulations promulgated thereunder.
IN WITNESS WHEREOF, this Signature Page has been executed by the
undersigned this 16th day of October, 1996.
LIMITED PARTNER:
ProTrust Properties V, Ltd
By ProTrust Holdings II, LLC
/s/ Jeffrey J. Neal, Manager
--------------------------------------
Signature
Jeffrey J. Neal
--------------------------------------
Name, Printed or Typed
ACCEPTED:
3399 Peachtree Rd. N.E. Suite 2050
Little Rock Lodging Associates, Inc., --------------------------------------
General Partner Street Address
By: /s/ Robert S. Cole Atlanta, GA 36326
---------------------------------- --------------------------------------
City, State and Zip Code
Title: President 61-1308515
------------------------------- --------------------------------------
Taxpayer Identification Number
Date: Oct 16, 1996
--------------------------------
AMENDMENT TO
THE LIMITED PARTNERSHIP AGREEMENT
OF LITTLE ROCK LODGING ASSOCIATES I, LIMITED PARTNERSHIP
This Amendment to the Limited Partnership Agreement of Little Rock Lodging
Associates I, Limited Partnership (the "Limited Partnership") is made and
entered into as of the 1 day of January, 1998 by and among Little Rock Lodging
Associates, Inc., an Arkansas corporation, (the "General Partner") the sole
general partner of the Limited Partnership and each or the limited partners
whose names and signatures appear hereafter (the "Limited Partners")
(collectively, with the General Partner, the "Partners"). The Partners desire to
amend that certain Limited Partnership Agreement, as amended, between the
General Partner and the Limited Partners, dated as or the 16th day or October,
1996 (the "Partnership Agreement").
NOW, THEREFORE in consideration of the premises and certain other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Partners agree as follows:
1. The Partnership Agreement is hereby amended by deleting Section 1.5(a) of the
Partnership Agreement and replacing it with the following:
(a) The name and address of the General Partner of the
Partnership is as follows:
Impac SPE #3, Inc.
3445 Peachtree Rd., N.E.
Suite 700
Atlanta, Georgia 30326
2. Exhibit A to the Partnership Agreement is hereby deleted and the Amendment to
Exhibit A to the Partnership Agreement attached hereto is hereby approved and
substituted.
IN WITNESS WHEREOF, the General Partner and the Limited Partner have
executed this Amendment to the Partnership Agreement on the date first written
above.
[SIGNATURE PAGES TO FOLLOW]
GENERAL PARTNER SIGNATURE PAGE
The undersigned specifically adopts and approve each and every provision
of the Amendment to the Limited Partnership Agreement of Little Rock Lodging
Associates I, Limited Partnership to which this signature page shall be attached
and made a part thereof.
IN WITNESS WHEREOF, the General Partner has executed this Agreement as of
the day and year first written above. Each of the Limited Partners required to
authorized this Amendment has executed this Agreement by separate Limited
Partner's signature page hereto.
GENERAL PARTNER:
LITTLE ROCK LODGING ASSOCIATES, INC.
By: /s/ Robert S. Cole
----------------------------------
Robert S. Cole
President
SEEN AND AGREED:
IMPAC SPE #3, INC.
By: /s/ Robert S. Cole
----------------------------------
Robert S. Cole
President
LIMITED PARTNERS SIGNATURE PAGE
The undersigned (i) if a party to the Partnership Agreement prior to the
date of this Amendment does hereby specifically adopt and approve each and every
provision of this Amendment to the Partnership Agreement of Little Rock Lodging
Associates I, Limited Partnership to which this signature page shall be attached
and made a part thereof and (ii) if the undersigned was not a party to the
Partnership Agreement prior to the date of this amendment, the undersigned
hereby agrees to become a party to the Partnership agreement and be bound by its
terms.
IN WITNESS WHEREOF, the undersigned Limited Partner has executed this
Agreement as of the day and year written above. The General Partner has executed
this Agreement by separate General Partner's signature page hereto.
LIMITED PARTNER:
IMPAC HOTEL GROUP, L.L.C
By: /s/ Robert S. Cole
----------------------------------
Robert S. Cole, Managing Member
AMENDMENT TO EXHIBIT A TO THE
LIMITED PARTNERSHIP AGREEMENT OF
LITTLE ROCK LODGING ASSOCIATES I, LIMITED PARTNERSHIP
Capital Contribution
--------------------
Limited Partner
Impac Hotel Group, L.L.C. $_________________
3445 Peachtree Road
Suite 700
Atlanta, Georgia 30326
General Partner
Impac SPE, #3 Inc. $_________________
3445 Peachtree Road
Suite 700
Atlanta, Georgia 30326
AMENDMENT NO. 2 TO
THE LIMITED PARTNERSHIP AGREEMENT
OF LITTLE ROCK LODGING ASSOCIATES I, LIMITED PARTNERSHIP
This Amendment to the Limited Partnership Agreement of Little Rock Lodging
Associates I, Limited Partnership (the "Limited Partnership") is made and
entered into as of the 23rd day of July, 1999 by and among Impac SPE #3, Inc.,
an Arkansas corporation, (the "General Partner") the sole general partner of the
Limited Partnership and each of the limited partners whose names and signatures
appear hereafter (the "Limited Partners") (collectively, with the General
Partner, the "Partners"). The Partners desire to amend that certain Limited
Partnership Agreement, as amended, between the General Partner and the Limited
Partners, dated as of the 16th day of October, 1996 (the "Partnership
Agreement").
NOW, THEREFORE in consideration of the premises and certain other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Partners agree as follows:
1. The Partnership Agreement is hereby amended by deleting Section 1.5(a) of the
Partnership Agreement and replacing it with the following:
(a) The name and address of the General Partner of the
Partnership is as follows:
Lodgian Richmond SPE, Inc.
3445 Peachtree Rd., N.E.
Suite 700
Atlanta, Georgia 30326
2. Exhibit A to the Partnership Agreement is hereby deleted and the Amendment to
Exhibit A to the Partnership Agreement attached hereto is hereby approved and
substituted.
IN WITNESS WHEREOF, the General Partner and the Limited Partner have
executed this Amendment to the Partnership Agreement on the date first written
above.
[SIGNATURE PAGES TO FOLLOW]
GENERAL PARTNER SIGNATURE PAGE
The undersigned hereby specifically adopts and approves each and every
provision of the Amendment to the Limited Partnership Agreement of Little Rock
Lodging Associates I, Limited Partnership to which this signature page shall be
attached and of which made a part.
IN WITNESS WHEREOF, the General Partner has executed this Agreement as of
the day and year written above. Each of the Limited Partners required to
authorize this Amendment has executed this Agreement by separate Limited
Partner's signature page hereto.
GENERAL PARTNER:
IMPAC SPE #3, INC.
By: /s/ Robert S. Cole
----------------------------------
Robert S. Cole
President
SEEN AND AGREED:
LODGIAN RICHMOND SPE, INC.
By: /s/ Robert S. Cole
----------------------------------
Robert S. Cole
President
-2-
LIMITED PARTNERS SIGNATURE PAGE
The undersigned (i) if a party to the Partnership Agreement prior to the
date of this Amendment does hereby specifically adopt and approve each and every
provision of this Amendment to the Partnership Agreement of Little Rock Lodging
Associates I, Limited Partnership to which this signature page shall be attached
and made a part thereof and (ii) if the undersigned was not a party to the
Partnership Agreement prior to the date of this amendment, the undersigned
hereby agrees to become a party to the Partnership Agreement and be bound by its
terms.
IN WITNESS WHEREOF, the undersigned Limited Partner has executed this
Agreement as of the day and year first written above. The General Partner has
executed this Agreement by separate General Partner's signature page hereto.
LIMITED PARTNER:
IMPAC HOTEL GROUP, L.L.C.
By: /s/ Robert S. Cole
----------------------------------
Robert S. Cole, Managing Partner
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AMENDMENT TO EXHIBIT A TO THE
LIMITED PARTNERSHIP AGREEMENT OF
LITTLE ROCK LODGING ASSOCIATES I, LIMITED PARTNERSHIP
Capital Contribution
Limited Partner
Impac Hotel Group, L.L.C. $____________________
3445 Peachtree Road
Suite 700
Atlanta, Georgia 30326
General Partner
Lodgian Richmond SPE, Inc. $_____________________
3445 Peachtree Road
Suite 700
Atlanta, Georgia 30326
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