Exhibit 3.50.10
AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
THE PONDS OF PEMBROKE LIMITED PARTNERSHIP,
AN ILLINOIS LIMITED PARTNERSHIP
TABLE OF
CONTENTS
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AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
THE PONDS OF PEMBROKE LIMITED PARTNERSHIP,
AN ILLINOIS LIMITED PARTNERSHIP
This AMENDED AND RESTATED AGREEMENT
OF LIMITED PARTNERSHIP (this “Agreement”) is entered
into this 7th day of May, 1997, by and between Brookdale
Holdings, Inc., a Delaware corporation (“BHI”), as
the General Partner, and Brookdale Living Communities, Inc., a
Delaware corporation (“BLC”), as the Limited Partner,
pursuant to the provisions of the Illinois Revised Uniform Limited
Partnership Act, as amended, on the following terms and
conditions:
WITNESSETH:
WHEREAS, KILICO Realty Corporation,
an Illinois corporation (“KRC”), The Prime
Group, Inc., an Illinois corporation (“Prime”) and
Arnold G. Gough, an individual, (“Gough”), entered into
that certain Agreement of Limited Partnership of The Ponds of
Pembroke Limited Partnership, dated as of December 11, 1987,
as amended as of December 11, 1990 and as further amended as
of August 15, 1991 (effective as of December 11, 1990),
as of December 31, 1991, as of March 22, 1994 and as of
August 31, 1994 (as so amended, the “Original
Agreement”);
WHEREAS, among other things, the
amendments referred to in the immediately preceding recital
effected (i) the transfer of the interest of Gough in the
Partnership (as hereinafter defined) from Gough to Kemper Investors
Life Insurance Company, an Illinois insurance corporation
(“KILICO”), (ii) the withdrawal of Gough as a
limited partner of the Partnership; and (iii) the admission of
KILICO as a limited partner of the Partnership;
WHEREAS, pursuant to that certain
letter agreement, dated September 17, 1996, by and among
Prime, KRC and KILICO, as amended (the “Kemper
Agreement”), KRC and KILICO (collectively, the “Kemper
Transferors”) have agreed to convey certain interests in the
Partnership to Prime or its designee or assignee;
WHEREAS, pursuant to that certain
Formation Agreement, dated as of the date hereof (the
“Formation Agreement”), by and among (i) BLC,
(ii) BHI, (iii) Mark J. Schulte, an individual,
(iv) Prime, and (v) Prime Group Limited Partnership, an
Illinois limited partnership, as of the date hereof, the rights to
acquire the interests in the Partnership from the Kemper
Transferors pursuant to the Kemper Agreement are being assigned to
BLC, and BLC has agreed to assume the obligation to pay the
purchase price under the Kemper Agreement;
WHEREAS, pursuant to the Formation
Agreement, Prime is assigning, as of the date hereof immediately
after the KRC Assignment, a twenty five percent (25%) Interest in
the Partnership to BLC (or to BHI as its designee);
WHEREAS, the parties hereto desire
to amend and restate the Original Agreement in its entirety, and
desire to reflect herein, among other things, (i) the
withdrawal of Prime, KRC and KILICO as partners of the Partnership,
(ii) the admission of BHI as the General Partner of the
Partnership; (iii) the admission of BLC as the Limited Partner
of the Partnership; and (iv) certain
other amendments to the Original Agreement so
that the Original Agreement, as amended and restated, reads, in its
entirety, as follows:
ARTICLE I
CERTAIN
DEFINITIONS
For purposes of this Agreement, the following
terms shall have the meanings set forth in this
Article I (such meanings to be equally applicable in
both the singular and plural forms of the term defined).
1.1.
“
Act ” means the Illinois Revised Uniform Limited
Partnership Act, as amended from time to time (or any corresponding
provisions of succeeding law).
1.2.
“
Adjusted Capital Account Deficit ” means, with respect
to any Partner, the deficit balance, if any, in such
Partner’s Capital Account as of the end of the relevant
Partnership taxable year, after giving effect to the following
adjustments:
(i)
Credit to such
Capital Account any amounts which such Partner is obligated to
restore pursuant to any provision of this Agreement or pursuant to
Regulations Section 1.704-1(b)(2)(ii)(c) or is deemed to
be obligated to restore pursuant to the penultimate sentences of
Regulations Sections 1.704-2(g)(1) and 1.704-2(i)(5);
and
(ii)
Debit to such
Capital Account the items described in Regulations Sections
1.704-1(b) (2) (ii) (d) (4) ,
1.704-1(b) (2) (ii) (d) (5) and
1.704-1(b) (2) (ii) (d) (6) .
The foregoing definition of Adjusted Capital
Account Deficit is intended to comply with the provisions of
Regulations Section 1.704-1(b)(2)(ii)(d) and shall be
interpreted consistently therewith.
1.3.
“
Affiliate ” means any (i) Person owning a
majority interest in any corporate Partner; (ii) Person owning
an interest as a general partner of any Partner or a majority
interest as a limited partner of any Partner; (iii) Person who
is an officer, director, trustee, partner or stockholder of any
Partner or of any Person described in the preceding clause (ii); or
(iv) Person that is controlling, controlled by or under common
control with a Partner or any Person described in the preceding
clauses (i), (ii) or (iii).
1.4.
“
Agreement ” or “ Partnership Agreement
” means this Amended and Restated Agreement of Limited
Partnership, as amended from time to time. Words such
as “herein,” “hereinafter,”
“hereof,” and “hereunder” refer to this
Agreement as a whole, unless the context otherwise
requires.
1.5.
“
Assignee ” means any Person who has acquired a
beneficial interest in the Interest of a Partner in the
Partnership.
1.6.
“
Available Cash Flow ” means, with respect to the
applicable period of measurement (i.e., any period beginning on the
first day of the fiscal year or other period commencing immediately
after the last day of the calculation of Available Cash Flow which
was distributed, and ending on the last day of the month, quarter
or other applicable period
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immediately preceding the
date of calculation, the excess, if any, of the gross cash receipts
of the Partnership for such period from all sources whatsoever,
including, without limitation, the following:
(a)
(i) all
rents, revenues, income and proceeds derived by the Partnership
from its operations, including, without limitation, distributions
received by the Partnership from any entity in which the
Partnership has an interest; (ii) all proceeds and revenues
received on account of any sales of property of the Partnership or
received by the Partnership for payments of principal, interest,
costs, fees, penalties or otherwise on account of any loans made by
the Partnership or financings or refinancings of any property of
the Partnership; (iii) the amount of any insurance proceeds
and condemnation awards received by the Partnership; (iv) all
Capital Contributions received by the Partnership from its
Partners; (v) all cash amounts previously reserved by the
Partnership, if the specific purposes for which such amounts were
reserved are no longer applicable; and (vi) the proceeds of
liquidation of the Partnership’s property in accordance with
this Agreement:
over the sum of:
(b)
(i) all
operating costs and expenses of the Partnership and capital
expenditures made during such period (without deduction, however,
for any capital expenditures, charges for depreciation or other
expenses not paid in cash or expenditures from reserves described
in (vii) below); (ii) all costs and expenses expended or
payable during such period in connection with the sale or other
disposition, or financing or refinancing, of property of the
Partnership or the recovery of insurance or condemnation proceeds;
(iii) all fees provided for under this Agreement;
(iv) all debt service, including principal and interest, paid
during such period on all indebtedness of the Partnership;
(v) all Capital Contributions, advances, reimbursements or
similar payments made to any Person (whether a partnership,
corporation or other entity) in which the Partnership has an
interest; (vi) all loans made by the Partnership; and
(vii) any and all reserves reasonably determined by the
Managing General Partner to be necessary or appropriate for working
capital, capital improvements, payments of periodic expenditures,
debt service or other purposes.
1.7.
“
BHI ” means Brookdale Holdings, Inc., a Delaware
corporation.
1.8.
“
BLC ” means Brookdale Living Communities, Inc., a
Delaware corporation.
1.9.
“
Capital Account ” means, with respect to any Partner,
the Capital Account maintained for such Partner in accordance with
the following provisions:
(i)
To each
Partner’s Capital Account there shall be credited the amount
of cash and the Gross Asset Value of any Property contributed by
such Partner to the Partnership, such Partner’s distributive
share of Profits and any items in the nature of income or gain
which are specially allocated pursuant to Sections 4.3 or
4.4 hereof, and
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the amount of any
Partnership liabilities assumed by such Partner or which are
secured by any Property distributed to such Partner.
(ii)
To each
Partner’s Capital Account there shall be debited the amount
of cash and the Gross Asset Value of any Property distributed to
such Partner pursuant to any provision of this Agreement, such
Partner’s distributive share of Losses and any items in the
nature of expenses or losses which are specially allocated pursuant
to Sections 4.3 or 4.4 hereof, and the amount of any
liabilities of such Partner assumed by the Partnership or which are
secured by Property contributed by such Partner to the
Partnership.
(iii)
In determining
the amount of any liability for purposes of the foregoing
subparagraphs (i) and (ii), there shall be taken into account
Code Section 752(c) and any other applicable provisions
of the Code and Regulations.
The foregoing provisions and the
other provisions of this Agreement relating to the maintenance of
Capital Accounts are intended to comply with Regulations Sections
1.704-1(b) and 1.704-2, and shall be interpreted and applied
in a manner consistent with such Regulations. In the event
the Managing General Partner shall determine that it is prudent to
modify the manner in which the Capital Accounts, or any debits or
credits thereto (including, without limitation, debits or credits
relating to liabilities which are secured by contributed or
distributed property or which are assumed by the Partnership,
General Partner or the Limited Partners) are computed in order to
comply with such Regulations, the Managing General Partner may make
such modification, provided that it is not likely to have a
material adverse effect on the amounts distributable to any Partner
pursuant to Article IX hereof upon the dissolution of
the Partnership. The Managing General Partner also shall
(i) make any adjustments that are necessary or appropriate to
maintain equality between the Capital Accounts of the Partners and
the amount of Partnership capital reflected on the
Partnership’s balance sheet, as computed for book purposes,
in accordance with Regulations Section 1.704-1(b)(2)(iv)(q),
and (ii) make any appropriate modifications in the event
unanticipated events might otherwise cause this Agreement not to
comply with Regulations Sections 1.704-1(b) or
1.704-2.
1.10.
“
Capital Contributions ” means, with respect to any
Partner, the amount of money and the initial Gross Asset Value of
any property (other than money), net of the amount of any debt to
which such property is subject, contributed to the Partnership with
respect to the Interest in the Partnership held by such
Partner. The principal amount of a promissory note which is
not readily tradable on an established securities market and which
is contributed to the Partnership by the maker of the note shall
not be included in the Capital Account of any Person until the
Partnership makes a taxable disposition of the note or until (and
to the extent) such Partner makes principal payments on the note,
all in accordance with Regulations
Section 1.704-1(b)(2)(iv)(d)(2).
1.11.
“
Certificate ” shall mean the Certificate of Limited
Partnership of the Partnership filed with the Secretary of State of
Illinois in accordance with the Act or the applicable predecessor
statute thereof, as such Certificate may be amended from time to
time.
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1.12.
“
Code ” means the Internal Revenue Code of 1986, as
amended from time to time (or any corresponding provisions of
succeeding law).
1.13.
“
Depreciation ” means, for each Partnership taxable
year or other period, an amount equal to the depreciation,
amortization or other cost recovery deduction allowable with
respect to an asset for such year or other period, except that, if
the Gross Asset Value of an asset differs from its adjusted basis
for federal income tax purposes at the beginning of such year or
other period, Depreciation shall be an amount which bears the same
ratio to such beginning Gross Asset Value as the federal income tax
depreciation, amortization or other cost recovery deduction for
such year or other period bears to such beginning adjusted tax
basis; provided , however , that, if the federal
income tax depreciation, amortization or other cost recovery
deduction for such year is zero, Depreciation shall be determined
with reference to such beginning Gross Asset Value using any
reasonable method selected by the Managing General Partner; and
provided , further , however , that to the
extent the “remedial” method described in Regulations
Section 1.704-3 is elected pursuant to the terms of this
Agreement, Depreciation will be determined in a manner consistent
therewith.
1.14.
“
General Partner ” means any Person which (i) is
referred to as such in the first paragraph of this Agreement or has
become a General Partner pursuant to the terms of this Agreement
and (ii) has not ceased to be a General Partner pursuant to
the terms of this Agreement. “General Partners”
means all such Persons if at any time there shall be more than one
General Partner. All references in this Agreement to a
majority in interest or a specified percentage of the General
Partners shall mean General Partners whose combined Percentage
Interests represent more than 50°s or such specified
percentage, respectively, of the Percentage Interests then held by
all General Partners.
1.15.
“ Gross
Asset Value ” means, with respect to any asset, the
asset’s adjusted basis for federal income tax purposes,
except as follows:
(i)
The initial Gross
Asset Value of any asset contributed by a Partner to the
Partnership shall be the gross fair market value of such asset, as
determined by the contributing Partner and the
Partnership;
(ii)
The Gross Asset
Values of all Partnership assets shall be adjusted to equal their
respective gross fair market values, as reasonably determined by
the Managing General Partner, as of the following times:
(a) the acquisition of an additional Interest in the
Partnership by any new or existing Partner in exchange for more
than a de minimis Capital Contribution; (b) the distribution
by the Partnership to a Partner of more than a de minimis amount of
Partnership assets, including money, as consideration for an
Interest in the Partnership; and (c) the liquidation of the
Partnership within the meaning of Regulations
Section 1.704-1(b)(2)(ii)(g); provided, however, that
adjustments pursuant to clauses (a) and (b) above shall
be made only if the Managing General Partner reasonably determines
that such adjustments are necessary or appropriate to reflect the
relative economic interests of the Partners in the
Partnership;
(iii)
The Gross Asset
Value of any Partnership asset distributed to any Partner shall be
the gross fair market value of such asset on the date of
distribution; and
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(iv)
The Gross Asset
Values of Partnership assets shall be increased (or decreased) to
reflect any adjustments to the adjusted basis of such assets
pursuant to Code Section 734(b) or 743(b), but only to
the extent that such adjustments are taken into account in
determining Capital Accounts pursuant to Regulations
Section 1.704-1(b)(2)(iv)(m) and the definition of
“Capital Account” hereof; provided, however, that Gross
Asset Values shall not be adjusted pursuant to this subparagraph
(iv) to the extent the Managing General Partner determines
that an adjustment pursuant to the foregoing subparagraph
(ii) of this definition hereof is necessary or appropriate in
connection with a transaction that would otherwise result in an
adjustment pursuant to this subparagraph (iv).
If the Gross Asset Value of an asset has been
determined or adjusted pursuant to any of the foregoing
subparagraphs (i), (ii) or (iv), such Gross Asset Value shall
thereafter be adjusted by the Depreciation taken into account with
respect to such asset for purposes of computing Profits and
Losses.
1.16.
“
Interest ” means a Partner’s ownership interest
in the Partnership, including any and all benefits to which the
holder of such an Interest may be entitled as provided in this
Agreement, together with all obligations of such Partner to comply
with the terms and provisions of this Agreement.
1.17.
“
Limited Partner ” means the Person (i) the name
of which is set forth on Exhibit A attached hereto and
designated as such or who has become a Limited Partner pursuant to
the terms of this Agreement and (ii) who holds an
Interest. “Limited Partners” means all such
Persons if at any time there shall be more than one Limited
Partner. All references in this Agreement to a majority in
interest or a specified percentage of the Limited Partners shall
mean Limited Partners whose combined Percentage Interests represent
more than 50% or such specified percentage, respectively, of the
Percentage Interests then held by all Limited Partners.
1.18.
“
Managing General Partner ” means the General Partner
elected as such pursuant to this Agreement, as described in
Section 6.1(a) .
1.19.
“
Nonrecourse Deductions ” has the meaning set forth in
Regulations Section 1.704-2(b). The amount of
Nonrecourse Deductions for a Partnership taxable year equals the
excess, if any, of the net increase, if any, in the amount of
Partnership Minimum Gain during that Partnership taxable year over
the aggregate amount of any distributions during that Partnership
taxable year of proceeds of a Nonrecourse Liability, that are
allocable to an increase in Partnership Minimum Gain, determined
according to the provisions of Regulations
Section 1.704-2(c).
1.20.
“
Nonrecourse Liability ” has the meaning set forth in
Regulations Section 1.704-2(b)(3).
1.21.
“
Partner Minimum Gain ” has the meaning set forth in
the definition of “partner nonrecourse debt minimum
gain” in Regulations Section 1.704-2(i)(2), and will be
computed as provided in Regulations
Section 1.704-2(i)(3).
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1.22.
“
Partner Nonrecourse Debt ” has the meaning set forth
in Regulations Section 1.704-2(b)(4).
1.23.
“
Partner Nonrecourse Deductions ” has the meaning set
forth in Regulations Section 1.704-2(i). The amount of
Partner Nonrecourse Deductions with respect to a Partner
Nonrecourse Debt for a Partnership taxable year equals the excess,
if any, of the net increase, if any, in the amount of Partnership
Minimum Gain attributable to such Partner Nonrecourse Debt during
that Partnership taxable year over the aggregate amount of any
distributions during that Partnership taxable year to the Partner
that bears the economic risk of loss for such Partner Nonrecourse
Debt to the extent such distributions are from the proceeds of such
Partner Nonrecourse Debt and are allocable to an increase in
Partnership Minimum Gain attributable to such Partner Nonrecourse
Debt, determined in accordance with Regulations
Section 1.704-2(i).
1.24.
“
Partners ” means the General Partners and the Limited
Partners, where no distinction is required by the context in which
the term is used herein. “Partner” means any one
of the Partners. All references in this Agreement to a
majority interest or a specified percentage of the Partners shall
mean Partners whose combined Percentage Interests represent more
than 50% or such specified percentage, respectively, of the
Percentage Interests then held by all Partners.
1.25.
“
Partnership ” means the partnership formed pursuant to
the Original Agreement and continued pursuant to this Agreement and
the partnership continuing the business of this Partnership in the
event of dissolution as herein provided.
1.26.
“
Partnership Minimum Gain ” has the meaning set forth
in Regulations Section 1.704-2(b)(2), and will be computed as
provided in Regulations Section 1.704-2(d).
1.27.
“
Percentage Interest ” means the percentage set forth
for the General Partners and Limited Partners on
Exhibit A hereto.
1.28.
“
Person ” means any individual, general partnership,
limited partnership, corporation, trust or other association or
entity.
1.29.
“
Profits” and “Losses ” and reference to
any item of income, gain, loss or deduction thereof, means, for
each Partnership taxable year or other period, an amount equal to
the Partnership’s taxable income or loss for such 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 703(a)(1) shall be included in taxable
income or loss), with the following adjustments:
(i)
Any income of the
Partnership that is exempt from federal income tax and not
otherwise taken into account in computing Profits or Losses
pursuant to this definition shall be added to such taxable income
or loss;
(ii)
Any expenditures
of the Partnership described in Code
Section 705(a)(2)(B) or treated as Code
Section 705(a)(2)(B) expenditures pursuant to Regulations
Section 1.704-1(b)(2)(iv)(i) and not otherwise taken into
account in
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computing Profits
or Losses pursuant to this definition shall be subtracted from such
taxable income or loss;
(iii)
In the event the
Gross Asset Value of any Partnership asset is adjusted pursuant to
subparagraph (ii) or (iv) of the definition of Gross
Asset Value hereof, the amount of such adjustment shall be taken
into account as gain or loss from the disposition of such asset for
purposes of computing Profits or Losses;
(iv)
Gain or loss
resulting from any disposition of property with respect to which
gain or loss is recognized for federal income tax purposes shall be
computed by reference to the Gross Asset Value of the property
disposed of notwithstanding that the adjusted tax basis of such
property differs from its Gross Asset Value;
(v)
In lieu of the
depreciation, amortization and other cost recovery deductions taken
into account in computing such taxable income or loss, there shall
be taken into account Depreciation for such Partnership taxable
year or other period, computed in accordance with the definition of
Depreciation herein; and
(vi)
Notwithstanding
any other provision of this definition of “Profits” and
“Losses,” any items which are specially allocated
pursuant to Sections 4.3 or 4.4 hereof shall not be
taken into account in computing Profits or Losses.
1.30.
“
Project ” means the senior and assisted living
facility described in Exhibit B attached hereto and all
of the Partnership’s interest therein, including all real
estate related thereto and buildings and improvements
thereon.
1.31.
“
Property ” means all real and personal property
acquired by the Partnership and any improvements thereto and shall
include both tangible and intangible property.
1.32.
“
Recapture Gain ” has the meaning set forth in
Section 4.6 (e) .
1.33.
“
Regulations ” means the Income Tax Regulations,
including Temporary Regulations, promulgated under the Code, as
such regulations may be amended from time to time (including
corresponding provisions of succeeding regulations).
1.34.
“ Tax
Matters Partner ” shall mean BHI or any successor
Managing General Partner.
1.35.
“
Transfer ” means, as a noun, any voluntary or
involuntary transfer, sale, pledge, hypothecation or other
disposition or encumbrance and, as a verb, voluntarily or
involuntarily to transfer, sell, pledge, hypothecate or otherwise
dispose of or encumber.
1.36.
“
Transferee ” has the meaning set forth in
Section 4.5(c) .
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ARTICLE II
THE
PARTNERSHIP
2.1.
Organization
. The
Partners hereby agree to (i) continue the Partnership as a
limited partnership pursuant to the provisions of the Act and upon
the terms and conditions set forth in this Agreement and
(ii) amend and restate herein the Partnership Agreement in its
entirety.
2.2.
Partnership
Name . The name of the
Partnership shall be “The Ponds of Pembroke Limited
Partnership” and all business of the Partnership shall be
conducted in such name or such other name as the Managing General
Partner shall determine. The Partnership shall hold all of
its property in the name of the Partnership and not in the name of
any Partner.
2.3.
Purpose
. The
purpose and business of the Partnership shall be to own real
property, including, without limitation, the Project, to acquire,
lease, own, mortgage or otherwise encumber personal property,
fixtures and real property to accomplish the foregoing; to operate,
manage, lease (or cause the operation, management and leasing by
independent contractors including a Partner or its Affiliates) the
Project and any other Property owned by the Partnership, and
otherwise deal in and with the business and assets of the
Partnership; to do any and all other acts which may be necessary or
incidental to any of the foregoing or the promotion or conduct of
the business of the Partnership or any of the Partnership Property,
including, without limitation, being a partner in another
partnership or other partnerships; and to pursue or conduct any
other business or activity approved by the Partners.
2.4.
Principal
Place of Business . The principal place
of business of the Partnership shall be c/o Brookdale Living
Communities, Inc., 77 West Wacker Drive, Chicago, Illinois
60601 or such other location as may be designated from time to
time.
2.5.
Term . The term of the
Partnership commenced on the date on which the Certificate was
filed in the office of the Secretary of State of Illinois in
accordance with the Act and shall continue until the winding up and
liquidation of the Partnership and its business is completed, as
provided in Article IX hereof.
2.6.
Filings; Agent
for Service of Process .
(a)
The Certificate
has been filed in the office of the Secretary of State of Illinois
in accordance with the provisions of the Act. The Managing
Partner shall take any and all other actions reasonably necessary
to perfect and maintain the status of the Partnership as a limited
part
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