TABLE OF CONTENTS AGREEMENT OF LIMITED PARTNERSHIP OF ARK I, LTD.

Transcription

1 TABLE OF CONTENTS AGREEMENT OF LIMITED PARTNERSHIP OF ARK I, LTD. ARTICLE I... 1 CERTAIN DEFINITIONS... 1 ARTICLE II... 5 THE PARTNERSHIP... 5 Section 2.1 Formation... 5 Section 2.2 Name... 5 Section 2.3 Registered Agent... 5 Section 2.4 Registered Office... 6 Section 2.5 Purposes and Powers... 6 Section 2.6 Ownership of Partnership Property; Waiver of Partition 6 Section 2.7 Term of Partnership... 6 ARTICLE III... 6 CONTRIBUTIONS AND LIABILITIES... 6 Section 3.1 Initial Capital Contributions of the Partners... 6 Section 3.2 Additional Capital Contributions... 7 Section 3.3 Interest; Return of Contributions... 7 Section 3.4 Capital Accounts... 7 (a) Separate Capital Accounts... 7 (b) Exempt Income... 7 (c) Return of Capital... 7 (d) Loans Not Capital... 8 (e) Negative Balances... 8 (f) No Obligations to Third Parties... 8 (g) Modification of Capital Accounts to Comply with the Code... 8 Section 3.5 Additional Limited Partners... 8 ARTICLE IV... 8 CASH DISTRIBUTIONS; ALLOCATIONS OF INCOME AND LOSS... 8 Section 4.1 Distributions of Net Cash Flow... 8 Section 4.2 Allocation of Profits and Losses (a) Profits (b) Losses Section 4.3 Special Allocations (a) Partnership Minimum Gain Chargeback (b) Chargeback of Minimum Gain Attributable to Partner Nonrecourse Debt (c) Qualified Income Offset (d) Gross Income Allocation (e) Non-Recourse Deductions (f) Section 754 Adjustments Section 4.4 Curative Allocations Section 4.5 Tax Allocations: Code Section 704(c) Section 4.6 Allocation of Gain or Loss from Terminating Capital Transaction and Target Final Balances Section 4.7 Allocation Upon Transfer Section 4.8 Agreement to Make Changes Required by Law ARTICLE V i v8

2 MANAGEMENT Section 5.1 Participation in Management Section 5.2 General Authority of General Partner Section 5.3 Independent Activities Section 5.4 Duties of the General Partner Section 5.5 Right of Third Parties to Rely on Authority of General Partner Section 5.6 Expenses of the Partnership Section 5.7 Certain Limitations on General Partner Activities (a) Prohibited Acts (b) Approval of Limited Partners Section 5.8 Exculpation Section 5.9 Standard of Care Section 5.10 Indemnity Section 5.11 Limitation on Liability ARTICLE VI TRANSACTIONS INVOLVING THE GENERAL PARTNER ARTICLE VII ACCOUNTING, REPORTING, BANKING, AND TAX MATTERS Section 7.1 Books of Account Section 7.2 Reports Section 7.3 Fiscal Year Section 7.4 Banking Section 7.5 Tax Election for Basis Adjustment Section 7.6 Partnership Returns Section 7.7 Information ARTICLE VIII TRANSFER OF PARTNERSHIP INTERESTS Section 8.1 In General Section 8.2 Transfers Section 8.3 Additional Conditions to Transfer Section 8.4 Death of a Limited Partner or Spouse of a Limited Partner Section 8.5 Transfer of General Partner s Interests; Designation of Additional General Partners Section 8.6 Consent to Admission of New Partners Section 8.8 Withdrawal of Limited Partner (a) Withdrawal Election (b) Withdrawal Due to Bankruptcy or Insolvency (c) Withdrawal Due to Divorce (d) Community of Interests (e) Purchase Option (f) Purchase Price ARTICLE IX RESIGNATION/BANKRUPTCY OF THE GENERAL PARTNER Section 9.1 Resignation or Removal of the General Partner Section 9.2 Bankruptcy or Dissolution of the General Partner Section 9.3 Liability of General Partner after Resignation; Payment of Partnership Indebtedness Section 9.4 Bankruptcy Provisions (a) Status of Trustee (b) Assumption of Obligations ii v8

3 ARTICLE X PURCHASE OPTIONS/DEFAULT LOANS Section 10.2 Dilution Section 10.3 Default Loans ARTICLE XI APPRAISAL Section 11.1 General Section 11.2 Selection of Appraisers Section 11.3 Appointment of Appraisers Section 11.4 Costs of Appraisal Section 11.5 Qualifications of Appraiser ARTICLE XII DISSOLUTION AND WINDING UP OF PARTNERSHIP Section 12.1 Dissolution Section 12.2 Election to Continue Section 12.3 Winding Up Section 12.4 Liquidator Section 12.5 Liquidation Statements ARTICLE XIII MISCELLANEOUS PROVISIONS Section 13.1 Notices Section 13.2 Law Governing Section 13.3 Severability Section 13.4 Section Headings and Captions Section 13.5 Amendments Section 13.6 Meetings and Means of Voting Section 13.7 Binding Nature of Certain Procedures Section 13.8 Right to Rely Upon Authority Section 13.9 Successors and Assigns Section Counterparts Section Modification to be in Writing Section Integrated Agreement iii v8

4 THE LIMITED PARTNERSHIP INTEREST DESCRIBED IN THIS DOCUMENT HAS BEEN ACQUIRED FOR INVESTMENT AND HAS BEEN ISSUED PURSUANT TO A CLAIM OF EXEMPTION FROM THE REGISTRATION OR QUALIFICATION PROVISIONS OF THE SECURITIES ACT OF 1933 OR THE SECURITIES LAWS OF ANY STATE. THIS LIMITED PARTNERSHIP INTEREST MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED, EXCEPT ON DELIVERY TO THE PARTNERSHIP OF AN OPINION OF COUNSEL SATISFACTORY TO THE GENERAL PARTNER OF THE PARTNERSHIP THAT REGISTRATION IS NOT REQUIRED FOR THE TRANSFER, OR SUCH OTHER EVIDENCE SATISFACTORY TO THE GENERAL PARTNER THAT THE TRANSFER IS NOT IN VIOLATION OF THE SECURITIES ACT OF 1933 OR ANY APPLICABLE STATE SECURITIES LAWS. THE SALE, PLEDGE OR OTHER TRANSFER OF THESE SECURITIES IS ALSO SUBJECT TO THE RESTRICTIONS SET FORTH IN ARTICLE VIII OF THIS DOCUMENT. AGREEMENT OF LIMITED PARTNERSHIP OF ARK I, LTD. THIS AGREEMENT OF LIMITED PARTNERSHIP OF ARK I, LTD., (the Agreement ), is entered into as of the 3rd day of June, 2011 ( Effective Date ), by and among CALIBURN CAPITAL I, LLC, a Texas limited liability company, as General Partner, and the parties listed on Schedule I hereto as Limited Partners. ARTICLE I CERTAIN DEFINITIONS Certain terms are used in this Agreement with the meanings set forth below: Acquisition Budget shall mean the projected costs to be incurred by the Partnership in the acquisition of the Property, including expenses related to the formation of the Partnership, the negotiation of the purchase contract and the purchase price payable for the Property; and the initial improvements to be made by the Partnership to the Property, including removing an abandoned temporary office structure, restriping and repairing potholes, and adding digital pricing signage and electronic parking kiosks, all as set forth in Exhibit B hereto. Act shall mean the Texas Limited Partnership Law, including Chapters 151, 153 and 154 and the applicable provisions of Title I of the Texas Business Organizations Code, as amended from time to time. Adjusted Capital Account Deficit shall mean, with respect to any Partner, the deficit balance, if any, in the Partner s Capital Account as of the end of the relevant fiscal year, after giving effect to the following adjustments: (i) crediting to the Capital Account any amounts that the Partner is obligated to restore or is deemed to be obligated to restore pursuant to the penultimate sentences of sections 1

5 (g)(1) and (i)(5) of the Regulations; and (ii) debiting to the Capital Account of the items described in sections (b)(2)(ii)(d)(4), (5) and (6) of the Regulations. This definition of Adjusted Capital Account Deficit is intended to comply with the provisions of section (b)(2)(ii)(d) of the Regulations and shall be interpreted consistently therewith. Affiliate of any Person shall mean any Person directly or indirectly controlling, controlled by or under common control with such other Person, and shall mean any Family Member of a Person. A Person shall be deemed to control a corporation if such Person possesses, directly or indirectly, the power to direct or cause the direction of the management and policies of such corporation, whether through the ownership of voting securities, by contract or otherwise. Approval of the Limited Partners means the written approval of the Limited Partner(s) owning a majority of the Percentage Interests owned by the Limited Partners. Bankruptcy means, for any Partner, that Partner s taking or acquiescing in the taking of an action seeking relief under, or advantage of, an applicable debtor relief, liquidation, receivership, conservatorship, bankruptcy, moratorium, rearrangement, insolvency, reorganization, or similar law affecting the rights or remedies of creditors generally, as in effect from time to time (the term acquiescing including, without limitation, the failure to file, within ten (10) days after its entry, a petition, answer, or motion to vacate or to discharge an order, judgment, or decree providing for any such relief). Capital Account shall have the meaning set forth in Section 3.4 hereof. Capital Contributions shall mean, with respect to any Partner, the amount of all cash and the fair market value of other property contributed by such Partner (or such Partner s predecessor in interest) to the capital of the Partnership pursuant to Article III hereof. Capital Transaction shall mean either an Interim Capital Transaction or a Terminating Capital Transaction. Code shall mean the Internal Revenue Code of 1986 as amended. Converted Limited Partner shall mean the General Partner whose interest as a General Partner has been converted to a Limited Partner s interest in accordance with Section 9.1. Family Member shall mean a Person s spouse, siblings, parents and lineal descendants (whether by adoption or consanguinity) and shall also mean a trust, family partnership or other entity, the primary 2

6 beneficiary of which is the Person s spouse, siblings, parents and/or lineal descendants (whether by adoption or consanguinity). General Partner shall mean CALIBURN CAPITAL I, LLC., a Texas limited liability company, and any successor or additional general partners of the Partnership admitted into the Partnership pursuant to the terms of this Agreement. Gross Receipts shall mean all receipts of the Partnership whether received by the General Partner or its Affiliates on behalf or for the account of the Partnership arising from the operation of the Partnership or from a Capital Transaction. Interim Capital Transaction shall mean a capital event with respect to the Property (such as the sale or condemnation of all or a portion of any such property, a refinancing of all or a portion of any such property or the receipt of casualty or litigation proceeds or prepaid ground lease payments) that does not result in the dissolution of the Partnership. IRR means, at any time of determination, the discount rate at which the present value of the total amount of the Capital Contributions of each Partner as of such date is equal to the present value of all distributions made to such Partner pursuant to Section 4.1. (including distributions under Section 4.1 by virtue of Section 12.3(d) of this Agreement). Limited Partners shall mean the Persons listed as Limited Partners on Schedule I hereto and any substituted Limited Partner admitted pursuant to Article VIII. Liquidator shall have the meaning set forth for that term in Section Net Cash Flow shall mean, with respect to any period, the Gross Receipts of the Partnership less (i) cash operating expenses, (ii) debt service payments on or repayments of Partnership borrowings, and (iii) those reserves which the General Partner reasonably deems to be advisable for Partnership operations and/or future payments of the Preferred Return to the Partners. Non-recourse Deductions shall have the meaning set forth in section (c) of the Regulations. Operating Budget shall mean a pro forma line item budget of all costs and expenses anticipated to be incurred in connection with the Partnership to operate and maintain the Property for the period of time covered by the budget, to be prepared on an annual basis by the General Partner and Approved by the Limited Partners as provided in Section 5.7(b). 3

7 Partners shall mean the General Partner and the Limited Partners, and Partner shall refer to any one of them. Partnership shall mean ARK I, LTD., a Texas limited partnership. Partnership Agreement or Agreement shall mean this Agreement of Limited Partnership of the Partnership. Partnership Indebtedness shall mean any indebtedness of the Partnership payable to traditional lending institutions, such as banks, savings and loans, insurance companies, pension funds, and other institutions engaged in the lending of money. Percentage Interests shall mean the respective Percentage Interests of the Partners set forth on Schedule I hereto. Person shall mean an individual, a partnership, a corporation, a trust, a joint venture, an unincorporated organization, or any other entity. Preferred Return shall mean, with respect to each Partner, a sum equivalent to a cumulative six and one-half percent (6.5%) annual return, compounded annually, on that Partner s Unrecovered Capital, calculated from the date of contribution. Preferred Return Account shall mean, with respect to each Partner, that Partner s Preferred Return, reduced by all distributions made to that Partner with respect to the Preferred Return Account pursuant to Section 4.1(a) of this Agreement (including distributions under Section 4.1(a) by virtue of Section 12.3(d) of this Agreement). Profits and Losses shall mean, for each fiscal year or other period, an amount equal to the Partnership s taxable income or loss for that year or period, determined in accordance with Code section 703(a) (for this purpose, all items of income, gain, loss or deduction required to be stated separately pursuant to Code section 702(a)(1) shall be included in taxable income or loss). Property shall mean two parcels of land comprising a total approximately 56,621 square feet commonly known as 457 St. Mary s and 231 E. Nueva, and being more particularly described in Exhibit A attached hereto (collectively, the Land ), together with any and all other property and assets owned by the Partnership from time-to-time, whether real, personal or mixed, and whether tangible or intangible. Pursuit Costs shall mean all actual out-of-pocket costs incurred by the General Partner to third parties who are not Affiliates of the General Partner in connection with the due diligence, investigations, analysis, governmental approvals and planning for the acquisition, development and financing of the Property, including amounts incurred for legal, accounting, engineering, architectural and professional services. 4

8 Regulations shall mean the Income Tax Regulations, including Temporary Regulations, promulgated under the Code, as those regulations may be amended from time to time (including corresponding provisions of succeeding regulations). Terminating Capital Transaction shall mean the sale, exchange or other disposition of all or substantially all of the assets of the Partnership as part of the winding up under Section 12.3 below. Unrecovered Capital shall mean, with respect to each Partner, that Partner s Capital Contributions reduced by the cumulative amount of distributions to that Partner pursuant to Section 4.1(b), until such Partner has received back an amount equal to all of its Capital Contributions pursuant to such Section, at which time such Partner shall no longer have Unrecovered Capital. Unallocated Preferred Return shall mean, with respect to each Partner, an amount equal to the excess of (i) all distributions made to that Partner with respect to the Preferred Return Account pursuant to Section 4.1 (a) of this Agreement (including distributions under Section 4.1 (a) by virtue of Section 12.3 (d) of this Agreement), over (ii) the Profits allocated to that Partner under Section 4.2 (a) (2). Unallocated Preferred Return Account shall mean, with respect to each Partner, an account to be maintained by the Partnership reflecting that Partners Unallocated Preferred Return. ARTICLE II THE PARTNERSHIP Section 2.1 Formation. The General Partner and the Limited Partners hereby form a partnership pursuant to the Act for the purposes and upon the terms and conditions set forth in this Agreement. Each Limited Partner shall be admitted into the Partnership upon the Limited Partners execution of this Agreement and, if later, the General Partner s causing to be filed in the Office of the Secretary of State of Texas a Certificate of Limited Partnership that complies with the Act. Section 2.2 Name. The name of the Partnership is ARK I, LTD. and all business of the Partnership shall be conducted in such name, or in such other name or names as the General Partner may determine. Section 2.3 Registered Agent. The registered agent of the Partnership for service of process shall be Kevin Covey, 4515 San Pedro Ave., San Antonio, Texas The General Partner shall give written notice to each Limited Partner of any change in the Partnership s registered agent. 5

9 Section 2.4 Registered Office. The registered office of the Partnership where the books and records of the Partnership shall be kept shall be located at 4515 San Pedro Ave., San Antonio, Texas The Partnership may also have such other places of business as the General Partner deems appropriate and of which it advises the Limited Partners in writing. Section 2.5 Purposes and Powers. The purpose of the Partnership shall be (i) to acquire the Land; (ii) to improve, own, finance and operate the Land as commercial parking lots; and (iii) to take any action that the General Partner may determine to be necessary or desirable to accomplish the foregoing purposes of the Partnership, subject to the limitations set forth in this Agreement. Section 2.6 Ownership of Partnership Property; Waiver of Partition. All Partnership property, both real and personal, presently owned or hereafter acquired by the Partnership shall be owned by the Partnership and held in the name of the Partnership. Each Partner expressly waives any right it might individually have to require a partition thereof or a dissolution of the Partnership, except as otherwise specifically provided herein. Section 2.7 Term of Partnership. The term of the Partnership commenced on the day and date first written above, and shall continue perpetually, unless sooner dissolved pursuant to Article XII. ARTICLE III CONTRIBUTIONS AND LIABILITIES Section 3.1 Initial Capital Contributions of the Partners. Promptly upon the execution of this Agreement, each of the Partners shall make an initial Capital Contribution equal to the sum shown as Initial Capital Contribution opposite its name on Schedule I to this Agreement. The initial Capital Contributions shall be used by the Partnership to (i) acquire the Land in accordance with that certain Purchase and Sale Contract dated March 31, 2011, between Ithaca Investments, Ltd., an Affiliate of the General Partner as Buyer and American General/Allright Parking, as Seller, which Contract has been assigned to the Partnership;(ii)perform certain improvements to the Land to enhance its use as commercial parking lots and for initial working capital of the Partnership, all as provided in the Acquisition Budget; and (iii) pay or reimburse the General Partner for Pursuit Costs as described in the Acquisition Budget. Notwithstanding anything contained herein to the contrary, the Limited Partners acknowledge that the Partnership, the General Partner and the other Limited Partners have entered into this Agreement and made commitments in reliance on the Limited Partners timely payment to the Partnership of all amounts required to be contributed by each such Limited Partner pursuant to this Section 3.1. Accordingly, each Limited Partner agrees that he is personally liable to the Partnership and to each 6

10 Partner for the timely payment of the amounts required by this Section 3.1. Section 3.2 Additional Capital Contributions. Subject to Section 3.4(f) below, if the Partnership does not have sufficient funds to pay all operating and/or capital expenses or debt service of the Partnership, the General Partner may call upon the Limited Partners to each make additional Capital Contributions of cash to the Partnership as and when such funds are needed, pro rata among them in accordance with their respective Percentage Interests. The Limited Partners shall make such additional Capital Contributions within twenty (20) days following written notice from the General Partner. Notwithstanding the foregoing, the Limited Partners shall not have personal liability (i.e. shall have no recourse liability) either to the other Partners or third parties for the payment of additional Capital Contributions pursuant to this Section 3.2, and the sole recourse of the Partnership or the other Partners for the failure by a Limited Partner to make any such additional Capital Contributions shall be to exercise the rights and remedies set forth under Article X below. Section 3.3 Interest; Return of Contributions. Partners shall not be entitled to interest on their Capital Contributions or to any return of their Capital Contributions except as provided in this Agreement. No Partner shall have the right to demand or (except as the Liquidator may determine pursuant to Section 12.4) receive property other than cash in return for its Capital Contribution to the Partnership or have priority over any other Partner, either as to the return of Capital Contributions by the Partnership or as to distributions from the Partnership. Each Partner shall look solely to the assets of the Partnership for the return of its Capital Contributions, and if the assets of the Partnership are insufficient to return its Capital Contributions, it shall have no recourse against any other Partner for that purpose. Section 3.4 Capital Accounts. (a) Separate Capital Accounts. Each Partner shall have a separate Capital Account which shall be increased and decreased in accordance with Treasury Regulations (b)(2)(iv). (b) Exempt Income. The income of the Partnership which is exempt from federal income tax and the amount of expenditures of the Partnership described in Section 705(a)(2)(B) of the Code shall be allocated to the Partners as if such items were taxable income or deductible loss allocable pursuant to Section 4.3 or 4.4, as the case may be. (c) Return of Capital. To the extent any property which a Partner is entitled to receive pursuant to any other provision of this Agreement would constitute a return of capital, each of the Partners consent to the withdrawal of such capital. 7

11 (d) Loans Not Capital. Loans by the Partners to the Partnership (as permitted by this Agreement) shall not be considered Capital Contributions, nor shall advances or payments on behalf of the Partnership for which the General Partner is entitled to reimbursement hereunder be considered Capital Contributions. No repayment of principal or interest on any such loans, or reimbursement in respect to advances or other payments, or payments of fees to the General Partner or its Affiliates which are made by the Partnership shall be considered a return of capital or in any manner affect the General Partner s Capital Account. (e) Negative Balances. No Limited Partner with a negative balance in its Capital Account shall have any obligation to any other Partner or to any other party to restore such negative balance. (f) No Obligations to Third Parties. No provision of this Agreement shall be construed to create an obligation of a Partner to contribute additional capital to the Partnership for the benefit of any third party. (g) Modification of Capital Accounts to Comply with the Code. The provisions of this Section 3.5 and other provisions contained in this Agreement relating to the maintenance of Capital Accounts are intended to comply with section (b) of the Regulations, and shall be interpreted and applied in a manner consistent therewith. If the General Partner determines that it is necessary or prudent to modify or adjust the manner in which the Capital Accounts, or any debits or credits to the Capital Accounts, are computed in order to comply with the Regulations, the General Partner shall make a modification or adjustment, so long as it is not likely to have a material effect on the amounts distributable to a Partner pursuant to Section 12.3 on the liquidation of the Partnership. Section 3.5 Additional Limited Partners. With the prior Approval of the Limited Partners and the written consent of the General Partner, the Partnership is authorized to admit additional Limited Partners at such prices and on such terms as shall be determined by the General Partner. The General Partner may admit as substituted Limited Partners those persons acquiring Percentage Interests pursuant to Article VIII below, and the name, residence address, Percentage Interest and amount of Capital Contribution to the Partnership attributable to each such person shall be reflected in an amendment to this Agreement. ARTICLE IV CASH DISTRIBUTIONS; ALLOCATIONS OF INCOME AND LOSS Section 4.1 Distributions of Net Cash Flow. 8

12 The General Partner shall make distributions of Net Cash Flow to the extent available, within a reasonable time after the end of each calendar quarter, in the following manner: (a) First, one hundred percent (100%) to the Partners with positive balances in their Preferred Return Accounts, pro rata among them based upon the ratio that each such Partner s Preferred Return Account bears to the total amount of all Preferred Return Accounts, until the Partners Preferred Return Accounts equal zero; (b) Second, one hundred percent (100%) to the Partners with Unrecovered Capital, pro rata among them based upon the ratio that each such Partner s Unrecovered Capital bears to the total amount of Unrecovered Capital, until the Partners Unrecovered Capital has been reduced to zero; and (c) Third, eighty five percent (85%) to the Limited Partners, pro rata among them in accordance with their respective Percentage Interests, and fifteen percent (15%) to the General Partner until all distributions to the Limited Partners pursuant to this Section 4.1 (including distributions under Section 4.1 by virtue of Section 12.3(d) of this Agreement) are sufficient to provide the Limited Partners with a fifteen percent (15%) IRR; (d) Fourth, eighty percent (80%) to the Limited Partners, pro rata among them in accordance with their respective Percentage Interests, and twenty percent (20%) to the General Partner until all distributions to the Limited Partners pursuant to this Section 4.1 (including distributions under Section 4.1 by virtue of Section 12.3(d) of this Agreement) are sufficient to provide the Limited Partners with a twenty percent (20%) IRR; (e) Thereafter, seventy five percent (75%) to the Limited Partners, pro rata among them in accordance with their respective Percentage Interests, and twenty five (25%) to the General Partner; (f) Notwithstanding the foregoing, the General Partner shall cause the Partnership to distribute to each Partner within ninety (90) days after the end of each fiscal year of the Partnership (the Tax Distribution Date ), an amount equal to the excess of (i) the federal income tax liability of a Partner arising from allocations made pursuant to Sections 4.2, 4.3, 4.4, 4.5 and 4.6 of this Agreement from the date of this Agreement to the end of the relevant fiscal year over (ii) all distributions previously made to such Partner, from the Effective Date to the Tax Distribution Date. The amount distributable under this Section 4.1(f) shall be determined by the General Partner taking into account the maximum federal tax rate applicable to the Partner on ordinary income and net short-term capital gain or on net long-term capital gain, as applicable, and the amount thereof so allocated to such Partner. The amounts distributed to a Partner under this Section 4.1(f) shall be treated as an advance of any distributions to which such Partner would otherwise be entitled under 9

13 this Agreement and the amounts otherwise distributable to a Partner pursuant to any other provision of this Agreement shall be reduced by the amount distributed pursuant to this Section 4.1(f). Section 4.2 Allocation of Profits and Losses. After taking into account the special allocations set forth in this Article IV, the Profits and Losses of the Partnership other than Profits and Losses described in Section 4.6 for each calendar year (or portion thereof), shall be allocated among the Partners in the following manner: (a) Profits. (1) First, to the Partners who have been allocated losses pursuant to Sections 4.2(b)(3) and (4) during any prior year in proportion to those Losses until the cumulative amount of Profits allocated to each Partner pursuant to this Section 4.2(a)(1) for the current and all prior periods equals the cumulative amount of Losses allocated to that Partner pursuant to Sections 4.2(b)(3) and (4) for any prior periods; (2) Second, to the Partners with a positive balance in their Unallocated Preferred Return Account Prorata until the Partners Unallocated Preferred Return equals zero; (3) Third, to each Partner to the extent that aggregate Partnership distributions to the Partner pursuant to Section 4.1(c) exceed the aggregate amount of Profits previously allocated to such Partner pursuant to this Section 4.2(a)(3), in the ratio of such excess amounts; (4) Fourth, to each Partner to the extent that aggregate Partnership distributions to the Partner pursuant to Section 4.1(d) exceed the aggregate amount of Profits previously allocated to such Partner pursuant to this Section 4.2(a)(4), in the ratio of such excess amounts; (5) Fifth, to each Partner to the extent that aggregate Partnership distributions to the Partner pursuant to Section 4.1(e) exceed the aggregate amount of Profits previously allocated to such Partner pursuant to this Section 4.2(a)(5), in the ratio of such excess amounts; and (6) Sixth, to the Partners in accordance with their respective Percentage Interests. (b) Losses. Except as provided in Section 4.2(b)(4), 10

14 (1) First, to the Partners who have been allocated Profits pursuant to Section 4.2(a)(6) during any prior year in proportion to those Profits until the cumulative Losses allocated to each Partner pursuant to this Section 4.2(b)(1) for the current and all prior periods equals the cumulative Profits allocated to that Partner pursuant to Section 4.2(a)(6) for all prior periods; (2) Second, to the Partners in proportion to and to the extent of the positive balance in their respective Capital Accounts; (3) Third, to the Partners in accordance with their respective Percentage Interests; and 11

15 (4) However, if any allocation of Losses pursuant to this Section 4.2(b) would cause a Limited Partner to have an Adjusted Capital Account Deficit, those Losses instead shall be allocated to the General Partner. Section 4.3 Special Allocations. If the requisite stated conditions or facts are present, the following special allocations shall be made in the following order: (a) Partnership Minimum Gain Chargeback. Notwithstanding the other provisions of this Article IV, except as provided in Regulations Sections (f)(2) through (5), if there is a net decrease in partnership minimum gain (as defined in Regulations Section (d)) during any Partnership taxable period, each Partner shall be allocated items of Partnership income and gain for such period (and, if necessary, subsequent periods) in the manner and amounts provided in Regulation Sections (f)(6), (g)(2) and (j)(2)(i), or any successor provisions. For purposes of this Section 4.3, each Partner s adjusted Capital Account balance shall be determined, and the allocation of income or gain required hereunder shall be effected, prior to the application of any other allocations pursuant to this Article IV with respect to such taxable period (other than an allocation pursuant to Section 4.3(e). (b) Chargeback of Minimum Gain Attributable to Partner Nonrecourse Debt. Notwithstanding the other provisions of this Article IV (other than Section 4.3(a)), except as provided in Regulations Section (i)(4), if there is a net decrease in minimum gain attributable to partner nonrecourse debt (as defined in Regulation Section (i)(3)) during any Partnership taxable period, any Partner with a share of minimum gain attributable to partner nonrecourse debt at the beginning of such taxable period shall be allocated items of Partnership income and gain for such period (and if necessary, subsequent periods) in the manner and amounts provided in Regulations Sections (i)(4) and (j)(2)(ii), or any successor provisions. For purposes of this Article IV, each Partner s adjusted Capital Account balance shall be determined and the allocation of income or gain required hereunder shall be effected, prior to the application of any other allocations pursuant to this Section 4.3, other than Section 4.3(a) and other than an allocation pursuant to Section 4.3(e), with respect to such taxable period. (c) Qualified Income Offset. If a Limited Partner who is not also a General Partner unexpectedly receives any adjustments, allocations or distributions described in sections (b)(2)(ii)(d)(4), (b)(2)(ii)(d)(5), or (b)(2)(ii)(d)(6) of the Regulations, then items of Partnership income and gain shall be specially allocated to each such Limited Partner in an amount and manner sufficient to eliminate, to the extent required by the Regulations, the Adjusted Capital Account Deficit of the Limited Partner as quickly as possible, provided that an allocation pursuant to this Section 4.3(c) shall be made if and only to the extent that 12

16 the Limited Partner would have an Adjusted Capital Account Deficit after all other allocations provided for in this Article IV have been tentatively made without considering this Section 4.3(c). (d) Gross Income Allocation. If a Limited Partner who is not also a General Partner has a deficit Capital Account at the end of any Partnership fiscal year that exceeds the sum of (i) the amount the Limited Partner is obligated to restore, and (ii) the amount the Limited Partner is deemed to be obligated to restore pursuant to the penultimate sentences of sections (g)(1) and (i)(5) of the Regulations, then each sum Limited Partner shall be specially allocated items of Partnership income and gain in the amount of the excess as quickly as possible, provided that an allocation pursuant to this Section 4.3(d) shall be made if and only to the extent that the Limited Partner would have a deficit Capital Account in excess of that sum after all other allocations provided for in this Article IV have been tentatively made without considering Section 4.3(c) or this Section 4.3(d). (e) Non-Recourse Deductions. Non-recourse Deductions for any fiscal year or other period shall be allocated to the Partners pro rata based upon their relative Percentage Interests. (f) Section 754 Adjustments. To the extent an adjustment to the adjusted tax basis of any Partnership asset under Code section 734(b) or Code section 743(b) is required, pursuant to section (b)(2)(iv)(m) of the Regulations, to be taken into account in determining Capital Accounts, the amount of the adjustment to the Capital Accounts shall be treated as an item of gain (if the adjustment increases the tax basis of the asset) or loss (if the adjustment decreases the tax basis of the asset) and that gain or loss shall be specially allocated to the Partners in a manner consistent with the manner in which their Capital Accounts are required to be adjusted pursuant to that Section of the Regulations. Section 4.4 Curative Allocations. The Basic Regulatory Allocations consist of allocations pursuant to Section 4.3(a). Notwithstanding any other provisions of this Agreement, the Basic Regulatory Allocations shall be taken into account in allocating items of income, gain, loss and deduction among the Partners so that, to the extent possible, the net amount of the allocations of other items and the Basic Regulatory Allocations to each Partner shall be equal to the net amount that would have been allocated to each such Partner if the Basic Regulatory Allocations had not occurred. Section 4.5 Tax Allocations: Code Section 704(c). In accordance with Code sections 704(b) and (c) and the Regulations thereunder, income, gain, loss and deduction with respect to property actually or constructively contributed to the capital of the Partnership shall, solely for taxes purposes, be allocated among the Partners so as to take account of any variation at the time of the contribution between the adjusted basis of the property to the 13

17 Partnership for federal income tax purposes and its fair market value. If the fair market value of a Partnership asset is adjusted pursuant to Section 3.4(a), then as provided in the Regulations promulgated under Code section 704(b), subsequent allocations of income, gain, loss and deduction with respect to that Partnership asset shall take account of any variation between the adjusted basis of the asset for federal income tax purposes and its fair market value in the same manner as under Code section 704(c) and the Regulations thereunder. Any elections or other decisions relating to those allocations shall be made by the General Partner, after consulting with the limited Partner and the Partnership s accountant, in any manner that reasonably reflects the purposes and intent of this Agreement. Allocations of income, gain, loss and deduction pursuant to this Section 4.5 are solely for purposes of federal, state and local taxes and shall not affect, or in any way be taken into account in computing, any Partner s Capital Account or share of Profits, Losses or other tax items or distributions pursuant to any provision of this Agreement. Section 4.6 Allocation of Gain or Loss from Terminating Capital Transaction and Target Final Balances. Profits and Losses from a Terminating Capital Transaction or liquidation of the Partnership or any entity in which it owns an interest shall be allocated among the Partners so that after such allocations and the other tax allocations under this Agreement, the final Capital Accounts balances of the Partners are at levels ( Target Final Balances ) which would permit liquidating distributions that are made in accordance with such final Capital Account balances to be equal to the distributions that would occur under Section 4.1. To the extent that the tax allocation provisions of this Agreement would not produce the Target Final Balances, the Partners agree to take such actions as are necessary to amend such tax allocation provisions to produce such Target Final Balances. Notwithstanding the other provisions of this Agreement, allocations of income, gain, loss and deductions shall be made prospectively as necessary to produce such Target Final Balances (and, to the extent such prospective allocations would not effect such result, the prior tax returns of the Partnership shall be amended to reallocate income, gain, loss and deductions to produce such Target Final Balances). Section 4.7 Allocation Upon Transfer. If any interest in the Partnership is transferred, or is increased or decreased by reason of the admission of a new Partner or otherwise, during any fiscal year of the Partnership, each item of income, gain, loss, deduction, or credit of the Partnership for such fiscal year shall be assigned pro rata to each day in the particular period of such fiscal year to which such item is attributable (i.e., the day on or during which it is accrued or otherwise incurred) and the amount of each such item so assigned to any such day shall be allocated to the Partners based upon their respective interests in the Partnership at the close of such day. For the purpose of accounting convenience and simplicity, the Partnership shall treat a transfer of, or an increase or decrease in, an interest 14

18 in the Partnership which occurs on or before the fifteenth day of a month as occurring on the first day of such month. Admissions of Limited Partners and transfers of Interests occurring between the sixteenth day of the month and the last day of the month shall be treated as occurring on the first day of the succeeding month. Section 4.8 Agreement to Make Changes Required by Law. The Partners acknowledge that Regulations issued under Code section 704(b) require that certain provisions be included in all partnership agreements as a condition to having the allocations of tax items set forth in the agreements respected for income tax purposes. The Partners hereby adopt those provisions of the Regulations that are required to be included in a partnership agreement. The Partners agree to exercise the utmost good faith in cooperating to amend this Agreement to effect changes recommended by the Partnership s professional tax advisers to cause compliance with those Regulations, with input from the tax advisers of each Partner who desires to have any given in its behalf. ARTICLE V MANAGEMENT Section 5.1 Participation in Management. Except as set forth in Section 5.7 and any other express provision of this Agreement, the Limited Partners shall not participate in the management or control of the Partnership s business nor shall they transact any business for the Partnership, nor shall they have the power to act for or bind the Partnership, said powers being vested exclusively in the General Partner. Section 5.2 General Authority of General Partner. Subject to the limitations set forth in Section 5.7 and any other express limitations of this Agreement, the General Partner shall have all powers now or hereafter granted to a general partner of a limited partnership under the Act or which are granted to it, as a General Partner, under the provisions of this Agreement. Subject to Section 5.7 and any other express limitations of this Agreement, the General Partner shall have overall responsibility for the affairs of the Partnership and for its management and control and the General Partner shall have full power and authority to do all things reasonably deemed necessary or desirable to conduct the business of the Partnership, including, but not limited to, the following: (a) to purchase or obtain contracts of liability, casualty, and other insurance which the General Partner reasonably deems appropriate or convenient for the protection of the assets and affairs of the Partnership or for any other purpose beneficial to the Partnership; (b) to enter into agreements with other persons, including Affiliates, with respect to management of any Partnership assets, 15

19 which agreements may contain such terms, provisions, and conditions as the General Partner reasonably shall approve; (c) to borrow money and refinance Partnership indebtedness upon such terms and conditions and from such persons (including Partners) as the General Partner shall approve to carry out the purpose of the Partnership, distribute to the Partners, protect and preserve the assets of the Partnership and to incur any other indebtedness in the ordinary course of the Partnership s trade or business; (d) to pay any and all fees and expenses incurred in the organization of the Partnership or the amending of this Agreement pursuant to its provisions; and to spend the capital and income of the Partnership in the exercise of any rights or powers of the General Partner; (e) to lease and operate portions of the Property for commercial parking lot purposes; (f) to select one or more general contractors or subcontractors for the construction of improvements to the Land in accordance with the Acquisition Budget, and thereafter improve, maintain, replace and repair the Land as necessary to operate the same as a commercial parking lot and to promote the purpose of the Partnership, and to enter into contracts with contractors to perform such work on such terms and conditions as the General Partner in its sole reasonable discretion deems appropriate; (g) to appoint, employ, or contract with any person the General Partner reasonably may deem necessary or desirable for the transaction of the business of the Partnership; (h) to execute, acknowledge, and deliver any and all instruments, certificates, and agreements, and take such other steps as are necessary and appropriate to effectuate the foregoing; and (i) to perform such functions and take such actions as the General Partner may deem necessary or desirable in connection with the Partnership s ownership interests in the Parent Partnership. Any third party dealing with the General Partner in connection with the Partnership shall be entitled to rely upon an affidavit of such General Partner to the effect that it has the authority to engage in such dealings on behalf of the Partnership. Section 5.3 Independent Activities. The General Partner and each Limited Partner may, notwithstanding the existence of this Agreement, engage in whatever activities they choose independent of the Partnership or the other Partners, whether the same may be competitive with the Partnership or otherwise without having or incurring any obligation to offer any interest in such activities to 16

20 the Partnership or any other Partner. Neither this Agreement nor any activity undertaken pursuant hereto shall prevent the General 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 such Limited Partner, each Limited Partner hereby waives any such right or claim of participation. Section 5.4 Duties of the General Partner. (a) The General Partner shall use its reasonable efforts to carry out the business of the Partnership. The General Partner shall devote itself to the business of the Partnership to the extent that it reasonably may determine to be necessary. Whenever reasonably requested by the Limited Partners, the General Partner shall render a just and faithful account of all dealings and transactions relating to the business of the Partnership. (b) It is hereby agreed by all Partners that the General Partner shall be the tax-matters partner for the Partnership, as that term is defined in Section 6231(a)(7) of the Code. All costs and expenses incurred by the tax matters partner, including reasonably necessary overhead and administrative costs, in connection with the performance of its duties and privileges as tax matters partner shall be Partnership expenses. (c) Upon the request of the Limited Partners, but not more frequently than once each calendar year, the General Partner shall prepare a detailed, pro forma line item budget of all costs and expenses anticipated to be required to operate the Partnership for the period of time covered by the budget, and shall submit the proposed budget to the Limited Partners for their comment. Section 5.5 Right of Third Parties to Rely on Authority of General Partner. Notwithstanding any other provision of this Agreement to the contrary, no lender or purchaser of Partnership assets shall be required to verify any representation by the General Partner as to the extent of the interest in the assets of the Partnership which the General Partner is entitled to encumber, sell, or otherwise use, and any such lender or purchaser shall be entitled to rely exclusively on the representations of the General Partner as to its individual authority to enter into such financing or sale arrangements and shall be entitled to deal with the General Partner as if it were the sole party in interest therein both legally and beneficially. Section 5.6 Expenses of the Partnership. Except as otherwise specifically provided by this Agreement, all reasonable expenses of the Partnership, including, but not limited to, organization, offering, and operating expenses, shall be borne by the Partnership. 17

21 The General Partner and its Affiliates shall be entitled to reimbursement from the Partnership for other out-of-pocket expenses which are attributable to Partnership activities; including but not limited to the Pursuit Costs incurred by the General Partner. Section 5.7 Certain Limitations on General Partner Activities. (a) Prohibited Acts. The General Partner shall not do any of the following, without, in each instance, obtaining the written approval of the Limited Partners owning at least seventy five percent (75%) of the Percentage Interests then owned by the Limited Partners: (i) do any act in contravention of this Agreement; (ii) do any act that would make it impossible to carry on the ordinary business of the Partnership (except for a disposition of Partnership assets permitted or otherwise Approved by the Limited Partners pursuant to Section 5.7(b) below): (iii) confess a judgment against the Partnership; (iv) possess Partnership assets, or assign the rights in specific Partnership assets for other than a Partnership purpose; (v) cause the Partnership to issue additional Percentage Interests in the Partnership; (vi) change the purpose of the Partnership or engage in any business other than as expressly set forth in Section 2.5; or (vii) do any other act which the Act specifically requires to be approved by all Partners; provided, however, that to the extent the provisions of the Act may be waived by agreement of the Partners, the provisions of this Agreement providing for less than the unanimous approval of the Partners shall be fully operative. (b) Approval of Limited Partners. Notwithstanding anything to the contrary herein contained, and as a specific express limitation on the authority of the General Partner, the General Partner shall not do any of the following without, in each instance, obtaining the Approval of the Limited Partners: (1) incur any debt, whether as original financing or as refinancing of existing debt; provided that (i) by execution hereof, the Limited Partners hereby Approve the General Partner obtaining a loan of up to $1,750,000, secured by a first lien against the Land, on such market rate terms and conditions as the General Partner deems to be reasonable ( Acquisition Loan ), such loan to finance a portion of the purchase price and initial improvements for the Land as reflected on the Acquisition Budget, and (ii) following the closing of the purchase of the Land by the Partnership, the 18