Loading...
HomeMy WebLinkAboutCT 74-21; WHCBO Real Estate, LP; 1997-0147631; Easement.. " WCBO Real Estate Limited Partnership AND WEN RECORDED, PLEASE MAIL TO Carlsbad Municipal Water DMrId 5950 El Camino Real Engineem Department Carlsbad. California 92008 MAIL TAX STATEMENTS TO: ~ RECORDING REQUESTED BY EXEMPT LC # 1997-0147631 01-APR-1997 llr34 AN fee as it is to the beneff of the Please record the document at no Di (Gov. Code [6103].) Space above this line for Reconjets use. The undersigned grantor@) declare@): Assessot's Parcel No. 209-083-7.6 Documentary transfer tax is So.00 Project No. (L Name 94-211. Lots 23 and 36. ( ) computed on full value of property conveyed. or Carlsbad Oaks. Carlsbad TracI74-21. N.E. Comer of ( ) computed on full value less value of liens and encumbrances remaining at time of sale. ( ) Unincorporated area: (N City of Carlsbad , and FOR A VALUABLE CONSIDERATION, CARLSBAD MUNICIPAL WATER DISTRICT receipt of which is hereby acknowledged. Palomar Almort Road and FI Fuerte 25 .@- WlLLlAM E. PLUMMER, District Engiieer GRANT DEED OF WATER LINE EASEMENT ~~ WHCBO REAL ESTATE LIMITED PARTNERSHIP, a Delaware limited partnership does hereby grant to CARLSBAD MUNICIPAL WATER DISTRICT, a Public Agency organized in the state of California. Is successors and assigns, an easement. Purpose: the easement granted herein shall be granted for the following purposes: the construction, operation. repair, reconstrudiin and all activilies necessary to construd. reconstruct. operate, maintain and repak facililies designed for the general purpose of collecting, storing. transporting, pumping and treating all water. includflg surface water, Stream water, flood water and ground water flowing into said facilities, and all natural and artificial drainage ditches and structures of any kind, whether above or below the surface of the ground. Saa facility may indude pipelines, pumping faciliies, structures designed to control the flow of water and all facilities and structures associated with sad use which are designed to facilitate the use and proted the facility fmm natural and other forms of damage including, but not limited to, erosion control facilities, fences, gates, doors, locking devices. 1 01R0197 Rev. .. 380 alarms, lights. and all other protecth facildies and dews. me use shall also hdude a means of access Io and from said facility for the purpose of constructing. operating. reparhg. maintaining, inspecting and reconstructing said faciliy. The uses described herein shall be ezlusiw to the Grantee. Grantor herein agrees that no buildings and/or structures will be erected, walls constructed, fences bum nor trees planted. nor may the easement be used by the . Grantor or any other penon or entity. indudihg other utilities, whether public or prhrate. for uses whether compatible or hcompatiile with the uses described herein without the enpress written approwl of lhe Grantee. LOCATION Of THE EASEMENT: The easement granted herein shall be located within and upon the propeltis more palticulady described in Wibii 'A" and mibii 'Bo attached hereto and by this reference made a part hereof. FyY by the Grantor this &day of Fkbelrr GRANTOR WHCBO REAL ESTATE LIMITED PARTNERSHIP. a Delawara limited partnership . -9 A' /<haJ"e of grantor) , (tide of signatory) ". By: (sign here) (We of signatory) APPROVED AS TO FORM: GENERAL COUNSEL RONALD R. BALL n (Notarial acknowledgement of exxufkn of dRhNTOR must be attached.) CMWD 94-211 " 2 OIROIBI Rev. CERTIFICATION OF ACCEPTANCE OF DEED Thi is to certify that the intern h real property conwyed by the grant deed of easement, dated Gb~~z~, 193, from WHCBO REAL ESTATE LIMITED PARTNERSHIP. a Delawam limited DartnerShiD to the Carlsbad Municipal Water DWrict. Carlsbad, California. punuant to the Municipal Water District Act of 191 1, as amended, is hereby accepted by the undenigned officer or agent on behalf Of the Carlsbad Municipal Water District, Carlsbad. California. punuant to authority conferred by Resolution No. of the Carlsbad Municipal Water DW adopted on January 28,1992. and the grantee consents to recordation thereof by its duly authorized officer. ArETHA L. RAUTENKRANZ, Secretary I cm 94-211 06M 4/95 Rev, Lincoln Property Company Lots 23 8 38. CT 74-21, Map NO. 10372 C.M.W.D. 94-21 1 EXHIBIT "A" All that portion of Lots 23 and 38 of Carlsbad Tract No. 74-21, in the City of Carlsbad, County of San Diego, State of California, according to map thereof No. 10372, filed in the office of the County recorder of San Diego County, April. 13, 1982, more particularly described as follows. Being a strip of land 20.00 feet in width, lying 10.00 feet on each side and parallel with the following described centerline: Beginning at a point on the southerly right of way line of Loker Avenue East; said point being the westerly terminus of a line which bears North 86'27'08" West, and is 230.84 feet in length; thence southeasterly along said right of way line, South 86'27'08" East, 21.45 feet to the TRUE POINT OF BEGINNING; thence leaving said right of way line of Loker Avenue East, South 03"32'52" West, 10.00 feet; thence South 86'27'09 East, 33.55 feet, thence South 03'3252' West, 73.00 feet to a point hereafter referred to as Point A; thence continuing South 03'32'52' West, 252.27 feet to a point hereafter referred to as Point 9; thence continuing South 03'32'52' West, 22.13 feet; thence South WOO'W East, 19.05 feet to a point hereafter referred to as Point C; thence continuing South CKPWOO' East, 27.22 feet: thence North 90°00'W East, 340.42 feet to a point hereafter referred to as Point D; thence North 90'00'00" East, 346.61 feet to the beginning of a non-tangent 825.00 foot radius curve concave Northwesterly, to which a radial line bears South 90'0O'W West; thence ' Northwesterly along the arc of said curve through a central angle of 02"1950" a distance of 33.56 feet to a point hereafter referred to as Point E; thence continuing Northwesterly along said 825.00 foot radius curve through a central angle of 03O30'17" a distance of 50.46 feet to a point hereafter referred to as Point F; thence continuing Northwesterly along said 825.00 foot radius curve 383 Point F; thence continuing Northwesterly along said 825.00 foot radius curve through a central angle of OO"2009" a distance of 4.84 feet; thence North 06°1016" West, 274.25 feet to a point hereafter referred to as Point G; thence continuing North 06°1016" West, 6.22 feet; thence North 61'12'09" West, 164.24 feet to the beginning of a non-tangent 403.50 foot radius curve concave Northwesterly, to which a radial line bears North 45'5354" West; thence continuing Southwesterly along said 403.50 foot radius curve through a central angle of 17'04'14" a distance of 120.22 feet to a point hereafter referred to as Point H; thence continuing Southwesterly along the arc of said cuwe through a central angle of 03'48'13' a distance of 26.79 feet to a point hereafter referred to as Point I; thence continuing Southwesterly along the arc of said curve through a central angle of 07'26'13" a distance of 52.61 feet; thence North 17'33'14" West, 67.50' to the southerly right of way line of Lokers Avenue East. Together with strips of land 20.00 feet in width, lying 10.00 feet on each side and parallel with the following described centerlines: Commencing at the above mentioned Point A, thence South 86'27'08" East, 37.82 feet to the point of termination. Commencing at the above mentioned Point B, thence North 86'27'08' West, 32.29 feet to the point of termination, Commencing at the above mentioned Point C, thence South 90"00'00" West, 30.63 feet to the point of termination. C.M.W.D. 94-21 1 Commencing at the above mentioned Point D, thence South 00"0000" East. 57.42 feet to the point of termination. Commencing at the above mentioned Point E, thence South 87O40'11" West, 20.1 1 feet to the point of termination. Commencing at the above mentioned Point F, thence South 84°0953" West, 28.49 feet to the point of termination. Commencing at the above mentioned Point G, thence North 83O4944" East, 20.50 feet to the point of tenination. Commencing at the above mentioned Point H, thence North 28O4941' West, 20.50 feet to the point of termination. Commencing at the above mentioned Point I, thence South 25O01'27" East, 19.50 feet to the point of termination. The sidelines of the herein described easement shall be prolonged or shortened to create continuous and full easement width at all intersecting courses and curves. CHARLES S. KAHR RCE 23907 DATE Registration Expires 12/31/97 C.M.W.D. 94-211 CALIFORNIA ALL-PURPOSL ACKNOWLEDGMENT F personally known to me - OR - Ll proved to me on the basis of satisfactory evidence to be the personfs) whose namefefishm subscribed to the within instrument and acknowledged to me that hekhdthey executed the same in hi- authorized capaciw, and that by hi&e#thew or the entity upon behalf of which the person@ acted, ' signature# on the instrument the persono, executed the instrument. WITNESS my hand and official seal. OPTIONAL Though the infornation below is not required by law it may prove valuable to p8mns relying on the daument and mld plevenl Iraudulent removal and reanachrnent oi this lorn to another donunenl. Description of Attached Document Title or Type of Document: Document Date: Number of Pages: Signer@) Other Than Named Above: &&& Capacity(ies) Claimed by Signer(s) Signer's Name: 0 Individual I ' 0 Partner- 0 Limited 2 General 0 Attornev-in-Fact TNStek G Guardian or Consewator 0 Other: I II Signer Is Representing: I 0 Individual 0 Corporate Officer 0 Partner - 3 Limited 0 General Title(s): 0 Attorney-in-Fact 0 Trustee- 0 Guardian or Conservator 0 Other: Signer Is Representing: I SECRETARY OF STATE CERTIFICATE OF QUALIFICATION 2660858 8100 A" 6096076 960260398 DATE 09-09-96 .. 383 5EP E3 '96 07: 3oPll GOLDWIN, SACHS a CO. .. P.7 STATEMEM OF ORGANIZATION OF THE INCORPORATOR OF WHCBO GEN-PAR, INC. The undersigned incorporator of WHCBO GEN-PAR. INC.. a Delaware corporation. hereby certifies pursuant to Section 108 of the General Corporation Law of the State of Delaware: 1. The certificate of incorporation of said corporation was filed with the Secretary of State of the State of Delaware on September 9,1996. 2. The by-law annexed hereto have been adopted by me as and for the by-law of said corporation. 3. The following named person has been elected by me as the sole director of said corporation and shall have and exercise any and all rights, powers. privileges, and discretionary authority granted or permitted by the Certificate of Incorporation of the Corporation, the by-laws of the Corporation, or the Delaware Corporation Law or other staMes of the State of Delaware. until the first annual meeting of stockholders or until his successors are elected and qualify: David T. Hamamdo 4. The powers of the sole Incorporator hereby terminate on the date hereof. 5. The undersigned hereby waives all right, title and interest in and to 5EP 09 '96 07:30PM GOLDW4. .. SOCHS 2 CO. ,. any stock or property of the Corporation. P.8 301 IN mESS WHEREOF, I have signed this instrument as of the date when these actions were so taken this 9th day of September 1996. U Anita Rodriguez-Gougherty .. AGREEMENT OF LIMITED PARTNERSHIP OF WHCBO REAL ESTATE LIMITED PARTNERSHIP AGREEMENT OF LIMITED PARTNERSHIP of WHCBO Real Estate Limited Partnership dated as of September 9, 1996 among the undersigned (herein called the 'Partners", which term shall include any persons hereafter admitted to the Partnership and shall exdude any persons who cease to be Partners). WHEREAS, the Partners desire to form a limited partnership (the 'Partnership") pursuant to the terms and provisions of this Agreement of Limited Partnership (the "Agreement') and in accordance with the statutes and laws of the State of Delaware relating to limited partnerships, and WHCBO Gen-Par, Inc. (the "General Partner"), desires to be the General Partner: NOW, THEREFORE, the parties hereto agree as follows: ARTICLE I GENERAL PROVISIONS 5 1.01 Formation The parties hereto agree to form and enter into, and do hereby form and enter into, under the Revised Uniform Limited Partnership Act of the State of Delaware (the "Delaware Ad), a limited partnership for the purposes hereinafter described. In the event it shall be necessary for the Partnership to exist in or qualify to do business under the laws of any state or states other than or addition to the State of Delaware, the parties hereby agree that the partnership shall take such action as may be necessary lo exist or qualii to do business in any state in which such existence or qualiition shall be required, provided that in any such event the Partnership shall at all times continue to be a limited partnership formed under and governed by the provisions of the Delaware Act. 5 1.02 Partnership Name The name of the limited Partnership formed is WHCBO Real Estate Limited Partnership (the "Partnership"). The business of the partnership may be conducted under any other name deemed necessary or desirable by the General partner in order to comply with local law. 3 1.03 Purvose 303 The Partnership is organized for the purpose of investing in, purchasing, selhg and otherwise dealing with real estate assets (including mortgage loans), whether held directly or indirectly through one or more subsidiaries, and to engage in any and all activies necesw or incidental to the foregoing. Q 1.04 Place of Business and Reaistered office The principal place of business of the Partnership shall be at 100 Crescent Court, Suite 1000, Dallas, Texas 75201. The Partnership shall also maintain a registered oftice in the state of Delaware at do The Corporation Trust Company, Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801. 5 1.05 Registered Aaea The name and address of the Partnership's registered agent is The Corporation Trust Company, Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801. 5 1.06 Fiscal Year The fiscal year of the Partnership (the "Fiscal Year") for accounting and tax purposes shall be the calendar year endq on December 31. The General Partner is authorized to take such action as it may deem necessary or appropriate to ado@ a fiscal year ending on any other date. The General Partner is also authorized to make all elections for lax or other purposes as it may deem necessary or appropriate in such connection, including the establishment and implementation of transition periods. Q 1.07 Partners The names and the Business, residence or mailing address of the General Partner and the Limited Partners are as follows: General Partner WHCBO Gen-Par, Inc. do Kevin D. Naughton 85 Broad Street New York, NY 10004 Limited Partner. Lincoln Whitehall Realty (West) L.L.C. 2 do Kevin 0. Naughton 85 Broad Street New York, NY lo004 334 § 1.08 Powers The powers of the General Partner indude all powers, statutory and otherwise, possessed by general partners under the laws of the state of Delaware. Except as provided herein, the management of the Partnership shall be vested exclusively in the General Partner. Except as provided herein, the Limited Partners shall have no part in the management of the Partnership and shall have no authority or right to act on behalf of the Partnership in connection with any matter. The General Partner shall have the power and authority on behalf and in the name of the Partnership to carry out any and all the objects and purposes of the Partnership and to perform all acts in furtherance thereof including, without limitation, (1) to incur debt on behalf of the Partnership, (ii) to acquire or sell any assets of the Partnership, (iii) to provide indemnities or guarantees in the name and on behalf of the Partnership and (ii) any and all actions it deems necessary or desirable for the furtherance of the objects and purposes of the Partnership. The Limited partners agree that all determinations, decisions and actions made or taken by the General Partner shall be conclusive and absolutely binding upon the Partnership, the Limited Partners and their respective successors and assigns. § 1.09 Liabilii of Parhers Except as provided herein or by the Delaware Act, the General Partner shall have the liabilities of a partner in a partnership without limited partners to persons other than the Partnership and the Limited Partner. The Limited Partner shall have no liability under this Agreement except as provided herein or by the Delaware Act. The profits and losses of the Partnership shall be allocated among the Partners in accordance with Article IV. The Limited Partner shall not be liable for the repayment or discharge of the debts or obligations of the Partnership beyond the extent of its Capital AcroUnt. g1.10 - Term The Partnership shall dissolve, and its affairs shall be wound up, on December 31, 2046. or at such earlier time as (a) all of the Partners of the Partnership approve in writing, (b) the Partnership sells or othewise disposes of its interest in all or substantially all of its property, (c) the filing of a voluntary or involuntary petition for relief under Title 11 of the .United States Code by or against the General Partner, as defined in Section ,17402 of the Act, or (d) an entry of a decree of judicial dissolution has occurred under 51 7-802 of the Act. 3 . " ARTICLE II MANAGEMENT AND OPERATIONS OF THE PARTNERSHIP 52-01 Authoritv of the General Partner The General Partner shall have the power on behalf and in the names of the Partnership to carry out any and all of the objects and purposes of the Partnership set forth m Section 1.07 and to pedorm all acts which it may deem necessary or advisable. The Limited Pamer agrees that all determinations. decisions and actions made or taken by the General Partner shall be conclusive and absolutely binding upon the Partnership. the Limited Partner and their respective successors, assigns and personal representatives. 5 2.02 Qmanizational Expenses The General Pattner shall be solely responsible for the expenses of organizing the Partnership. ARTICLE 111 OWNERSHIP AND CONTRIBUTIONS 5 3.01 Ownenhh The General Pattner shall have a 1% undivided general partnership interest, and the Limited Partner shall have a 99% undivided limited partnership interest (each hereinafter called the 'Partnership Interesr of such partner). The Partnership shall be the owner of the property and rights conveyed to it. Q 3.02 Contniution of the General Partner The General Partner has contn'buted cash to the Partnership in the amount of $1. The General Partner may, but is not required to, lend any funds or make any additional contributions to the Partnership: provided, however, that the General Patinets aggregate contributions to the capital of the Partnership shall at all times equal at least 1/99th of the aggregate capital contributions made by the Limited Partner. 5 3.03 Contribution of the Limited Partner The Limited Partner has contributed cash to the Partnership in the amount of $99. The Limited Partner may (with the consent of the General PaNter), but is not required to, lend any funds or make any additional contnbutions to the Partnership; provided however, that the General Partner's aggregate contributions to the capital for the Partnership shall at all times equal at least 1/991h of the aggregate capital contributions made by the Limited PaMer. 5 3.04 Allocations of Pmfit and Lasses The Partnership's profits and losses shall be allocated in proportion to the respective interests of the Partners of the Partnership. 8 3-05 Distribution The distribution of any cash amounts allocated to the Partners shall be subject to the discretion of the General partner. 53.06 CaDital Accounts (a) A separate account ('Capital Account') shall be established for each Partner and maintained in accordance with the provisions of Regulations Section 1.7041(b)(2)(ii). Each Partneh Capital Account shall be (i) increased by the amount of any capital contributions made by such Partner, any profits allocated to such Partner pursuant to Article IV and the amount of any Partnership liibilii assumed by such Partner or secured by property distributed to such Partner and (ii) decreased by the amount of cash and the fair market value of any Partnership assets distributed to such Partner, the amount of Losses allocated to such Partner pursuant to Mi IV and the amount of any liabilities of such Partner which are assumed by the Partnership or secured by assets contributed by such Partner to the Partnership. (b) Immediately prior to any distribution of Partnership assets to the Partners in kind, the Capital Account of each Partner (whether or not such Partner receives a distribution of property) shall be adjusted to reflect the manner in which the unrealized gain or loss inherent in the assets to be dstnbured would be allocated among the Partners pursuant to Article IV if such assets were sold for fair market value on the date of distribution. 93.07 Interest on CaDital Contributions No Partner shall be entitled to interest on its capital contributions or its Capital Amount. 337 ARTICLE IV ALLOCATIONS AND DISTRIBUTIONS w.01 Chanae m Interest (a) A change in the Partnership Interest of the Partners may be effected pursuant to their mutual agreement. (b) For purposes of determining the Profits, Losses or any other items allocable to any period, ProMs. Losses and any such other items shall be determined on a daily, monthly, or other basis, as determined by the General Partner using any permissible method under Section 706 of the Code and the Regulations thereunder. 5 4.02 Allocation of Tax Items (a) If there is a difference between the adjusted tax basis of any Partnership asset and its fair market value as of the date of allocation of the asset, allocations of depreciation, amortization and gain or loss with respect to such asset, as computed for tax purposes, shall be made among the Partners in a manner which takes such difference into account in accordance with Section 704(c) of the Code and Regulations Section 1.704-1(b)(4)(i). (b) Allocations pursuant to this Section 4.03 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, other items or distributions pursuant to any provision of this Agreement. ARTICLE V DURATION The Partnership shall continue for an initial term ending December 31, 2046. The death or incompetence. or the voluntary or involuntary bankruptcy or retirement, of the Limited Partner or the assignment by the Limited Partner of its entire interest in the Partnership shall not dissolve the Partnership. but the Partnership shall continue, notwithstanding such event, until its expiration date as aforesaid. The withdrawal, replacement, removal or the voluntary or involuntary bankruptcy or dissolution of the General Partner, the assignment by the General Partner of its entire interest in the partnership, the death of the General Partner or the entry by a court of competent jurisdiction adjudicating him incompetent to manage his person or his property (in the case 6 of a General Partner that is a natural person), or the occurrence of any other event which causes the General Partner to cease to be a general partner under the Delaware Ad shall came the General Partner to cease to be a General Partner and shall cause the Partnership to dissolve, unless the business of the Partnership is continued by a Substitute appointed within 30 days, subjj to the provisions of Sectlon 1.04 hereof, with the prior written approval of general partners of the Limited Partner holding at least two-thirds (u3) of the profit interests in the Limited Partner. Upon the occurrence of such an appointment, such Substitute shall continue the business of the partnership without diution. ARTICLE VI TRANSFERABILITY OF PARTNERSHIP INTERESTS No Partner may sell, exchange, transfer, assign, pledge, hypothecate or otherwise dispose of all or any part of its interest in the Partnership unless (i) the requirements of the Delaware Act have been complied with in connection with such disposition, (ii) in the case of such a disposition by the Limited Partner, the General Partner provides its prior written consent thereto and general partners of the Limited Partner holding at least two-thirds (u3) of the profn interests in the Limited Partner provide their prior written consent thereto, and (iii) in the case of such a disposition by the General Partner, general partners of the Limited Partner holding at least two-thirds (U3) of the profit interests in the Limited Partner provide their prior written consent thereto. ARTICLE VI1 ADMISSION OF ADDITIONAL LIMITED PARTNERS 97.01 Addlional Partners (a) No addtional limited partners ('Additional Limited Partners') may be admitted to the partnership without the consent of all of the Partners to the Partnership. (b) After the admission of any Additional Limited Partner pursuant to thii Article VII, the partnership shaU continue as a limited pameship under the Act. ( c ) The admission of Additional Limited Partnefs to the partnership pursuant to this Article VI1 shall be accomplished by the amendment of thii Agreement of Limited Partnership and, if required by the act, the filing of an appropriate amendment of the partnership's certificate of Limited Partnership in the office of the Secretary of State of the State of Delaware. (d) The General Partner may at any time cause the Pattnership to admit additional limited partners VAddtional Limited Partners'); provided. however. that no Additional Limited Partners may receive a share of Profits and Losses without ." 333 the consent of each Partner. ARTICLE Vlll CERTAIN DEFINITIONS For the purposes of this Agreement: 'Code' means the Internal Revenue Code of 1986. as amended from time to time. 'Profis" and 'Losses' means, for each fiscal year or other periad, an amount equal to the Partnership's taxable income or loss for such year or period, determined in accordance with Section 703(a) of the Code (for this purpose, all Items of income, gain, loss or deduction required to be stated separately pursuant to Section 703(a)(l) of the Code shall be included in taxable income or loss), with the following adjustments: (a) Income of the Partnership that is exempt from Federal income tax and not otherwise taken into account in computing Profits and Losses pursuant to this definition shall be added to such taxable income or loss; (b) Any expenditures of the Partnership described in Section 705(a)(2)(9) of the Code or treated as Code Section 705(a)(2)(9) expendaures pursuant to Regulations Section 1.704-1(b)(2)(iv)(i), and not otheMlise taken into account in computing Profits or Losses pursuant to this definition shall be subtracted from such taxable income or loss; and (c) Gain or loss resulting from any disposition of Partnership assets with respect to which gain or loss is recognized for Federal income tax purposes shall be computed by reference to the fair market value of the asset disposed of, as of the date of contribution, notwithstanding that the adjusted tax basis of such asset differs from its fair market value. 'Reaulations" means the Income Tax Regulations promulgated under the Code from time to time. 8 ARTICLE IX MISCELIANEOUS 5 9.01 Amendments to the Aareement This Agreement may not be changed or amended by the General Partner without the consent of the Limited Partner prior to the withdrawal of the Limited Partner from the Partnership, provided that the Limited Partner hereby consents to any change or amendment to, or restatement of, this Agreement approved by the General Partner which (a) does not adversely affect the Limited Partner, or @) becomes effective on or after the date of the Limited Partner's withdrawal as a limited partner from the Partnership. 9 9.02 Govemina Law. Severability This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware. In particular, it shall be construed to the maximum extent possible to comply with all of the terms and conditions of the Delaware Act. If, nevertheless, it shall be determined by a court of competent jurisdiction that any provision or wording of this Agreement shall be invalid or unenforceable under said Act or other applicable law, such invalidity or unenforceabilii shall not invalidate the entire agreement. In that case, this Agreement shall be construed so as to limit any tern or provision so as to make it enforceable or valid within the requirements of any applicable law, and, in the event such term or provision cannot be so limited, this Agreement shall be construed to omit such invalid or unenforceable provisions. 99.03 Countemarts Thii Agreement may be executed in multiple counterparts. Each counterpart shall be an original, but altogether shall constitute one and the same instrument. 59.04 Indemnifiitlon of Indemnified Persons In the event that the general Partner, or any of its direct or indirect partners, directors, officers, stockholders, employees, incorporators, agents, affiliates or controlling persons (collectively, the 'Indemnified Persons"; each, including the General Partner, an 'Indemnified Person"), becomes involved, in any capacity, in any threatened pending or completed, action, proceeding or investigation, in connection with any matters arising out of or relating to the Partnership's business or affairs, the Partnership will periodically reimburse such Indemnified Person for its legal and other expenses (including the cost of any investigation and preparation) incurred in connection therewith. provided that such Indemnified Person shall promptly repay to the Partnership the amount of any such reimbursed expenses paid to it if it shall ultimately be determined that such Indemnified Person is not entitled to be indemnified by the Partnership in connection with such action, 9 proceeding or investigation as provided in the exception contained in the next proceeding sentence. To the fullest extent permitted by law, the Partnership also will indemnify and hold harmless an Indemnified Perron against any losses, dais, damages, liabilities, obligations, penalties, actions, judgment, suits, proceedings. costs, expenses and disbursements of any kind or nature whatsoever (collectively, "Costs"), to which such an Indemnified Person may become subject in connection with Paftnershi's business or affairs. except to the extent that such Costs result solely from the willful misfeasance, gross negligence or bad faith of such Indemnified Person. If for any reason (other than the willful misfeasance, gross negligence. or bad faith of such Indemnified Penon) the foregoing indemnification is unavailable to such Indemnified Person, or insuffident to hold it harmless, then the Partnership shall contribute to the amount paid or payable by such Indemnified Person as a result of such Costs in such proportion as is appropriate to refiscl not only the relative benefits received by the Partne~hip on the one hand but also the relatie fault of the Partnership and such indemnified Person, as well as any relevant equitable considerations. The reimbursement, indemnity and contnbution obligations of the Partnership under this Article IX shall be in addition to any liiilii under which the PaNIership may otheNvise have to any Indemnified Person and shall be binding upon and inure to the benefit of any successors, assigns, heirs and personal representatives of the Partnership and any Indemnified Perron. The reimbursement, indemnity and contribution obligations of the Partnership under this Article IX shall be limited to the Partnership's assets, and no Limited Partner shall have any personal liability on account thereof. The foregoing provisions shall survive any termination of this Agreement. 10 IN WITNESS WHEREOF, tho underaigned haw dub executed this Agreement of Lhited Partnership as of the day and par first written above. UNANIMOUS CONSENT IN LIEU OF FIRST MEETING OF THE BOARD OF DIRECTORS OF 433 WHCBO GEN-PAR. INC. The undersigned, being the sole director of WHCBO Gen-Par, Inc., a Delaware corporation (the 'Corporation"), does hereby consent to the adoption of and hereby adopts the following resolutions and directs that this consent be filed with the minutes of the proceedings of the Board of Directors: of Directors, the number of members of the Board of Directon shall be one. of the Board of Directors, annual meetings of stockholders shall be held for FURTHER RESOLVED, that until otherwise determined by resolution the election of directors at 1000 o'clock A.M. on the last Friday in November in each year (or, if such day is a legal holiday, then on the next succeeding business day not a legal holiday) at the principal office of the Corporation at 100 Crescent Court, Suite 1OOO. Dallas. Texas 75201 or at such other place as may be designated by resolution of the Board of Directors from lime to time. to hold the offices of the Corporation set forth opposite their respective names FURTHER RESOLVED, that the following persons are hereby elected until their respective successors are elected and qualified or until their earlier resignation or removal: Vice President - President - Daniel M. Neidch Erik M. Hansen Gary J. Rossi Edgar M. Thrift. Jr. Todd A Williams Paul Vogel Kevin D. Naughton David T. Hamamoto Stuart M. Rothenberg David M. Weil Elizabeth A OBrien Ralph F. Rosenberg Michael K. Klingher Edward M. Siskind RESOLVED, that until otherwke determined by resolution of the Board Assistant Vice President - Adam Brooks i ,, 434 Secretary - Kevin D. Naughton Treasurer - David M. Weil Assistant Treasurer - Stuart M. Rothenberg Todd A. W~lliams Edward M. Siskind Assistant Secretary - Eliith A. OBrien Ralph E Romberg Todd A. Wllliams FURTHER RESOLVED, that an oflice of the Corporation be established and maintained at 85 Broad Street, New York. New York 1 OOO4. of Directors, regular meetings of the Board of Directors be held at said office FURTHER RESOLVED, that until otheMlise determined by fie Board on the last Friday in November at 10:30 o'clock AM. FURTHER RESOLVED, that unless otherwise determined by the Board of Directors. the fiscal year of the Corporation shall be the period of twelve calendar months ending on the last Friday in November. FURTHER RESOLVED, that the form of seal, an impression of which is affixed hereto, bearing the words and figures WCBO GEN-PAR, INC., the corporate seal of the Corporation. corporate seal, 1996 Delaware" is hereby approved and adopted as and for FURTHER RESOLVED, that the form of certificate for he consent as Annex A. is hereby adopted as the certificate to represent fully Corporation's Common Stock, par value $1.00 per share attached to this paid and nonassessable shares of the Common Stock of the Corporation. FURTHER RESOLVED, that the Corporation is hereby authorized to the Corporation to Lincoln Whitehall Really (West) L.L.C. issue and sell 1000 shares of Common Stock, par value $1 .OO per share, of FURTHER RESOLVED. that any officer of the Corporation is hereby authorized to execute and deliver to Lincoln Whitehall Realty (West) L.L.C. or its nominee shares representing lo00 fully paid and nonassessable shares of Common Stock of the Corporation against receipt of the purchase price therefor. FURTHER RESOLVED, that a sum received m payment for the foregoing shares is hereby declared part of the capital for the Corporation. 2 FURMER RESOLVED, the corporation listed below is hereby appointed as the registered agent of this Corporation in the State of Delaware and its business address as shown below shall be the address of the registered office of this Corporation in said State: The Corporation Trust Company 1209 Orange street Wilmington, DE 19801 Corporation Trust Company FURMER RESOLVED, that the Corporation enter into the Agreement of Limited Partnership of WHCBO Real Estate Limited Partnership (the of the Corporation to execute and deliver the Partnership Agreement in 'Partnership Agreement') and that any officer is hereby authorized on behalf substantially the form attached to this consent as Annex C, and any cerncates of limited partnershlp or foreign limited partnership or Other to do business in any jurisdiction. documents necessary or appropriate to create such partnership or to qualify it FURTHER RESOLVED, that the Corporation is hereby authorized to Company"). be the general partner of WHCBO Real Estate Limited Partnership (the FURTHER RESOLVED, that any officer of the Corporation is hereby to execute and deliver. or cause to be made, executed and delivered, all such authorized, in the name and on behalf of the Corporation and the Company, and to perfon such other acts as such officer may deem necessary or documents, papers, certificates, agreements, undertakings, or instruments appropriate with advice of Counsel, in order to effectuate the purpose and intent of these resolutions. FURTHER RESOLVED, that for the purpose of authorizing the Corporation to do business under the laws of any state, territory or possession of the United States or of any foreign country In which it is necessary or convenient for the Corporation to transact business, the proper oflicers of the Corporation are hereby authorized in the name and on behalf of the Corporation to take such action as may be necessary or advisable to effect the qualification of the Corporation to do business as a foreign corporation m any of such states, territories, possessions or foreign countries and in connection therewith to appoint and substitute all necessary agents or attorneys for service of process, to designate or change the location of all necessary statutory offices, and to execute, acknowledge, verify, deliver. file or cause to be published any necessary applications, papers, certificates. 3 c .I r reports. consents to service of process, powers of attorney and other instruments as may be required by any of such laws, and, whenever it is expedient for the Corporation to cease doing busiws and withdraw from any such state, territory, possession or foreign country, to revoke any appointment of agent or attorney for service of process and to file such applications, papers, certificates, reports, revocation of appointment or surrender of authority as may be necessary to terminate the authonly of the Corporation to do business in any such state, territory, possession or foreign country. FURTHER RESOLVED, that the Secretary or any Assistant Secretary of the Corporation is hereby authorized and directed to procure all corporate books, books of account and stock books which may be required by the laws of Delaware or of any State in which the Corporation may do business or which may be necessary or appropriate in connection with the business of the Corporation, FURTHER RESOLVED, that the Treasurer or any Assistant Treasurer of the Corporation is hereby authorized to pay all charges and expenses incident to or arising out of the organization of the Corporation and to reimburse any person who has made any disbursement therefor. FURTHER RESOLVED, that the corporation, in its capacity as general partner of the Company, is hereby authorized to take all action necessary to permit the Company to acquire or invest in loans and real estate assets, or debt securities and other instruments, and is hereby authomed to enter into any agreement, instruments or documents deemed necessary or desirable in connection therewith. FURTHER RESOLVED, that MY and all such action heretofore taken in respect of the matters described in these resolutions be, and hereby is, ratified and confirmed by each of the Corporation and the Company as its act and deed. IN WITNESS WHEREOF, the undersigned has hereunto executed this consent this 9th day of September, 1996. 4