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Ecoscience - Agreement of Limited Partnership
EXHIBIT 10.67
VILLAGE FARMS OF TEXAS, L.P.
AGREEMENT OF LIMITED PARTNERSHIP
Dated as of February 6, 1996
THE LIMITED PARTNERSHIP INTEREST REPRESENTED HEREBY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR THE SECURITIES LAWS OF CERTAIN STATES AND HAVE BEEN OFFERED AND SOLD IN RELIANCE ON EXEMPTIONS FROM THE REGISTRATION REQUIREMENT OF THE ACT AND SUCH LAWS. THE LIMITED PARTNERSHIP INTEREST IS SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY BE TRANSFERRED ONLY IN A MANNER WHICH IS IN COMPLIANCE WITH THE PROVISIONS OF THIS AGREEMENT, AND MAY ONLY BE TRANSFERRED IN A TRANSACTION THAT IS REGISTERED UNDER THE ACT OR EXEMPT FROM SUCH REGISTRATION.
TABLE OF CONTENTS
LIST OF SCHEDULES
Schedule 1.1(a) Calculation of Internal Rate of Return Schedule 1.1(b) Project Budget Schedule 1.1(c) Project Documents Schedule 1.1(d) Site Schedule 6.3 Initial Officers of the Partnership
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AGREEMENT OF LIMITED PARTNERSHIP
This Agreement of Limited Partnership dated as of February 6, 1996 of VILLAGE FARMS OF TEXAS, L.P. (the "Partnership") is by and among COGENTRIX OF FORT DAVIS I, INC., a Delaware corporation ("Cogentrix GP" and a "General Partner"), COGENTRIX OF FORT DAVIS II, INC., a Delaware corporation ("Cogentrix LP" and a "Limited Partner"), VILLAGE FARMS OF DELAWARE, L.L.C., a Delaware limited liability company ("VF Delaware" and a "General Partner"), and VILLAGE FARMS, L.L.C., a Delaware limited liability company ("VF" and a "limited partner").
VF Delaware is a newly-formed Delaware limited liability company owned 99% by Agro Power Development, Inc., a New York corporation ("Agro Power"), and 1% by VF. VF is a newly-formed Delaware limited liability company owned 99% by Agro Power and 1% by VF Delaware. Agro Power has entered into agreements and instruments (as more fully defined hereafter, the "Project Documents") related to the development and operation of a venlo style greenhouse located in the vicinity of Fort Davis, Texas for the purpose of producing and selling beefsteak tomatoes (as more fully defined hereafter, the "Project"). In order to continue with the development of the Project and obtain financing for construction and working capital needs, Agro Power desires that Cogentrix GP and Cogentrix LP contribute in the aggregate $4,656,781.00 to the Project. In order to encourage Cogentrix to contribute such funds to the Project, Agro Power has agreed (1) to organize VF Delaware and VF and cause them to form the Partnership with Cogentrix GP and Cogentrix LP pursuant to which all Project Documents will be assigned to the Partnership, as VF Delaware's contribution to the Partnership, in exchange for a 1% interest in the Partnership, and likewise as VF's contribution to the Partnership in exchange for a 49% interest in the Partnership, (2) that, in exchange for a contribution to the capital of the Partnership of $980 by Cogentrix LP, Cogentrix LP will receive a 49% interest in the Partnership, and (3) that, in exchange for a contribution to the capital of the Partnership of $20 by Cogentrix GP, Cogentrix GP will receive a 1% interest in the Partnership. Cogentrix GP and Cogentrix LP have agreed to make such contributions to the capital of the Partnership on the terms and conditions set forth herein.
Accordingly, in consideration of the covenants and agreements contained herein and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, and intending to be legally bound, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
1.1 Certain Defined Terms.
As used in this Agreement, the following terms have the following meanings (such definitions to be equally applicable to both singular and plural forms of the terms defined):
"Abandonment" has the meaning set forth in subsection 6.2(e).
"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 fiscal year, after giving effect to the following adjustments:
(a) Credit to such Capital Account any amounts which such Partner is
obligated to restore pursuant to any provision of this Agreement or is
deemed to be obligated to restore pursuant to the penultimate sentence of
Regulations Section 1.704-2(g)(1) and 1.704-2(i)(5); and
(b) debit to such Capital Account the items described in Regulations
Sections 1.704-1(b)(2)(ii)(d)(4), (5) and (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.
"Administrative Agent" means CoBank, ACB.
"Adverse Consequence" means all actions, suits, proceedings, hearings, investigations, charges, complaints, claims, demands, injunctions, judgments, orders, decrees, rulings, damages, dues, penalties, fines, costs, amounts paid in settlement, liabilities, obligations, Taxes, liens, losses, expenses and fees, including, but not limited to, court costs, arbitral costs, costs of investigation, and attorneys' fees.
"Affiliate" of any designated Person, means each Person which, directly or indirectly, controls or is controlled by or is under common control with such designated Person and, without limiting the generality of the foregoing, shall include (a) any Person which beneficially owns or holds ten percent (10%) or more of any class of voting securities of such designated Person or ten percent (10%) or more of the equity interest in such designated Person and (b) any Person of which such designated Person beneficially owns and holds ten percent (10%) or more of any class of voting securities or in which such designated Person beneficially owns or holds ten percent (10%) or more of the equity interest. For the purposes of this definition, the terms "controls", "controlled by" and "under common control with," as used with respect to any Person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities or by contract or otherwise. Notwithstanding the foregoing, neither Cogentrix GP or Cogentrix LP, on the one hand, nor VF Delaware or VF, on the other hand, shall be deemed to be Affiliates of one another.
"After-Tax" means after deducting Cogentrix GP's or Cogentrix LP's, as applicable, notional project Federal and state income tax. As used in this definition of After-Tax, the notional project Federal and state income tax of Cogentrix GP and Cogentrix LP shall be calculated as follows:
(a) The Partnership's taxable income would be calculated from the
Schedule K most recently filed with the Internal Revenue Service (or the
appropriate successor form or schedule), which for purposes of clarity
would include operating income as
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shown on such Schedule and all separately stated items of income or loss
(except tax exempt income) as shown on such Schedule.
(b) Assuming the Partnership were taxable as a for-profit corporation,
the Partnership's Federal and state income tax would be determined based on
the taxable income calculated in (a). For these purposes, it will be
assumed that all of the Partnership's taxable income shall be taxed at a
blended Federal/state rate of 38.0% (subject to adjustment upward or
downward, as applicable, to reflect changes in the highest marginal
corporate Federal tax rate).
(c) The Partnership's notional income tax obligation as calculated in
(b) shall be allocated among the Partners in the same manner as Profits and
Losses are allocated among the Partners under Article IV hereof.
Provided that, for each quarter end and at year end until such time as the Partnership has filed a Schedule K with the Internal Revenue Service and a true-up of taxable income has occurred, notional project Federal and state income tax for Cogentrix GP and Cogentrix LP shall be calculated by multiplying Estimated Taxable Income allocated to Cogentrix GP and Cogentrix LP under Article IV hereof, as the case may be, by 38.0% (subject to adjustment upward or downward, as applicable, to reflect changes in the highest marginal corporate Federal tax rate).
"Agreement" means this Agreement of Limited Partnership, as amended, supplemented or otherwise modified and in effect from time to time.
"Agro Power" means Agro Power Development Inc., a New York corporation with offices at 10 Alvin Court, East Brunswick, New Jersey 08816.
"Agro Power Investment" means all cash contributions to the capital of the Partnership made by VF Delaware and VF pursuant to this Agreement.
"Appraisal Procedure" means a procedure whereby two independent appraisers, one chosen by each General Partner, shall agree upon the determinations then the subject of appraisal. Each General Partner shall deliver a written notice to the other appointing its appraiser within 15 days after receipt from the other of a written notice appointing its appraiser. Each appraiser then shall prepare a written appraisal with respect to the determinations which then are the subject of appraisal. If within 30 days after appointment of the two appraisers they are unable to agree upon the amount in question, a third independent appraiser shall be chosen within 10 days thereafter by the mutual consent of such first two appraisers or, if such first two appraisers fail to agree upon the appointment of a third appraiser, such appointment shall be made by the American Arbitration Association, or any organization successor thereto, from a panel of arbitrators having experience in the business of operating a hydroponic hot house and marketing the product produced therein and a familiarity with equipment used or operated in such business. The decision of the third appraiser so appointed and chosen shall be given within 30 days after the selection of such third appraiser. If three appraisers shall be appointed and the determination of one appraiser is disparate from the median by more than twice the amount by which the other determination is disparate from the median, then the determination of such appraiser shall be excluded, the remaining two determinations shall be averaged and such
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average shall be binding and conclusive on the General Partners; otherwise the average of all three determinations shall be binding and conclusive on the General Partners. (For example, if the two appraisers appointed by the General Partners determine a value of $100 and $200, and the third appraiser determines a value of $150, then the involved value shall be conclusively determined to be $150 ($100 + $200 + $150 divided by 3). As a further example, consider the first example but the third appraiser places a value of $190. In this case, the $100 valuation shall be disregarded and the value shall be conclusively determined to be $195 ($190 + $200 divided by 2). The $100 valuation is disregarded because the median of the three appraisers was $190 and the difference between $100 and $190 is $90, which is more than twice the difference between $200 and $190 which is $10, which multiplied by two is $20.) If a General Partner shall appoint an appraiser and the other Person shall fail to appoint an appraiser in the manner specified herein, the determination of the appraiser so appointed shall be binding and conclusive on the General Partners. The expenses of the appraisal procedure shall be borne solely by the Partnership.
"Budgets" has the meaning set forth in subsection 6.2(i).
"Business Day" means a day other than a Saturday, a Sunday or any other day on which commercial banks in Texas, North Carolina or New Jersey are authorized or required by law or executive order to be closed.
"Buy-Out Offer" has the meaning set forth in Section 11.2.
"Buy-Out Offeree" has the meaning set forth in Section 11.2.
"Buy-Out Offeror" has the meaning set forth in Section 11.2.
"Capital Account" means, with respect to any Partner, the capital account maintained for such Partner in the Partnership Books in accordance with the following provisions:
(a) To each Partner's Capital Account there shall be credited such
Partner's Capital Contributions, such Partner's distributive share of
Profits and any other items in the nature of income or gain which are
allocated under this Agreement.
(b) To each Partner's Capital Account there shall be debited the
amount of cash and the Gross Asset Value of any property (other than money)
(net of any liabilities assumed by such Partner or to which the property is
subject) distributed to such Partner pursuant to any provision of this
Agreement, and such Partner's distributive share of Losses and any other
items in the nature of deductions or losses which are allocated under this
Agreement.
(c) In the event all or a portion of an interest in the Partnership is
transferred in accordance with the terms of this Agreement in a transaction
that does not result in a termination of the Partnership under Code Section
708(b)(1)(B), the transferee shall succeed to the Capital Account of the
transferor to the extent it relates to the transferred interest.
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(d) In determining the amount of any liability for purposes of clause
(a) and clause (b) hereof, there shall be taken into account Code Section
752(c) and any other applicable provisions of the Code and the Regulations.
(e) If a Partner owns more than one Partnership Interest, one Capital
Account shall be maintained for the Partnership Interests of the Partner.
(f) Each Partner's Capital Account shall in all other respects be
maintained in accordance with the provisions of Regulations Section
1.704-1(b).
The foregoing provisions and the other provisions of this Agreement relating to the maintenance of capital accounts are intended to comply with Regulations Section 1.704-1(b), and shall be interpreted and applied in a manner consistent with such Regulations.
"Capital Contribution" means, with respect to any Partner, the amount of money and the initial Gross Asset Value of any property (other than money) (net of any liabilities assumed by the Partnership or to which the property is subject) contributed to the Partnership with respect to any Partnership Interest held by such Partner pursuant to the terms of this Agreement.
"Capital Lease" means any lease of property, real or personal, which in accordance with GAAP, would be required to be capitalized on a balance sheet of the lessee.
"Code" means the Internal Revenue Code of 1986, as amended from time to time.
"Cogentrix GP Designee" has the meaning set forth in Section 6.1(a).
"Cogentrix GP" means Cogentrix of Fort Davis Texas I, Inc., a Delaware corporation.
"Cogentrix Investment" means (a) the respective Initial Capital Contribution of Cogentrix GP and Cogentrix LP, (b) all subsequent contributions to the capital of the Partnership made by Cogentrix GP or Cogentrix LP (as the case may be) pursuant to this Agreement in excess of any Agro Power Investment and (c) all payments made by Cogentrix GP, Cogentrix LP or any of their Affiliates pursuant to any of the Project Loan Documents (it being understood for purposes of (c) that the Partnership is not an Affiliate of Cogentrix GP or Cogentrix LP) which shall be allocated for the purposes of this Agreement between Cogentrix GP and Cogentrix LP pursuant to their agreement.
"Cogentrix LP" means Cogentrix of Fort Davis Texas II, Inc., a Delaware corporation.
"Commonly Controlled Entity" means, with respect to any Person, an entity, whether or not incorporated, which is under common control with such Person within the meaning of Section 414(b) or (c) of the Code.
"Construction Agreement" means the Commercial Design and Construction Contract dated February 12, 1996, by and among the Partnership, Cogentrix Energy, Inc. and Agro Power, as it may be amended, supplemented or otherwise modified and in effect from time to time.
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"Construction/Term Facility" means a loan facility in the amount of $21,123,125.00 provided by the Construction/Term Lender pursuant to the Project Loan Documents.
"Construction/Term Lender" means Farm Credit Bank of Texas or its successor under the Construction/Term Facility.
"Cumulative Distributions to Cogentrix" means the aggregate, cumulative distributions of Net Distributable Cash received by Cogentrix GP and Cogentrix LP from the Partnership.
"Cumulative Distributions to VF" means the aggregate, cumulative distributions of Net Distributable Cash received by VF Delaware and VF from the Partnership.
"Delaware Act" means the Delaware Revised Uniform Limited Partnership Act, 6 Del.C. " 17-101, et seq., as it may be amended from time to time and any successor to such Act.
"Depreciation" means, for each fiscal year or other period, an amount equal to the deprecation, amortization, or other cost recovery deduction allocable with respect to an asset for such period, except that if the Gross Asset Value of an asset differs from its adjusted basis for Federal tax purposes at the beginning of such period, Depreciation shall be an amount which bears the same ratio to such beginning Gross Asset Value as the Federal income tax depreciation, amortization or other cost recovery deduction for such period bears to such beginning adjusted tax basis; provided that if the Federal income tax depreciation, amortization, or other cost recovery deduction for such period is zero, Depreciation shall be determined with reference to such beginning Gross Asset Value using any reasonable method selected by the Management Committee.
"Dollars" and "$" means dollars in lawful currency of the United States of America.
"Equity Funding Date" means the day on which all of the conditions to the initial drawdown under the Construction/Term Loan Facility (other than the contributions to the capital of the Partnership to be made by Cogentrix GP and Cogentrix LP under Section 3.2) have been met to the satisfaction of the Administrative Agent and the Construction/Term Lender.
"ERISA" means the Employment Retirement Income Security Act of 1974, as amended from time to time.
"ERISA Affiliate" means, with respect to any Person, any corporation or trade or business which is a member of the same controlled group of corporations (within the meaning of Section 414(b) of the Code) as such Person or is under common control (within the meaning of Section 414(c) of the Code) with such Person.
"Estimated Taxable Income" means book income of the Partnership computed in accordance with GAAP adjusted to reflect the estimated depreciation and amortization timing differences between financial reporting and income tax reporting.
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"First Priority Return" means the receipt by Cogentrix GP and Cogentrix LP of cash distributions from Net Distributable Cash in an aggregate amount sufficient to provide each of Cogentrix GP and Cogentrix LP, as the case may be, with an Internal Rate of Return on its respective Cogentrix Investment hereunder of [information omitted and subject to request for confidential treatment]% calculated in accordance with Schedule 1.1(a) (it being understood that any amounts which are part of Cogentrix Investment pursuant to subsection (b) or (c) of the definition of Cogentrix Investment shall only be entitled to such return from the date they are actually paid or made).
"GAAP" means generally accepted accounting principles as in effect from time to time in the United States.
"General Partner" means each of Cogentrix GP and VF Delaware and any Person admitted to the Partnership as an additional General Partner in accordance with the provisions of this Agreement, until such time as such Person ceases to be a general partner of the Partnership as provided herein or in the Delaware Act.
"Governmental Authority" means any nation or government, any state or other political subdivision thereof and any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government.
"Gross Asset Value" means, with respect to any asset, the asset's adjusted basis for Federal income tax purposes, except as follows:
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 agreement of the Partners;
The Gross Asset Value of all Partnership assets shall be adjusted to
equal their respective gross fair market values, as determined by agreement
of the Partners, and in the event the Partners fail to so agree, as
determined by the Appraisal Procedure, as of the following times: (i) 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; (ii) the distribution by the Partnership to a Partner of more
than a de minimis amount of property as consideration for an interest in
the Partnership if the Management Committee reasonably determines that such
adjustment is necessary or appropriate to reflect the relative economic
interests of the Partners in the Partnership; and (iii) the liquidation of
the Partnership within the meaning of Regulations Section
1.704-1(b)(2)(ii)(g);
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 as determined by agreement of the Partners and, in the event
the Partners fail to so agree, as determined by the Appraisal Procedure;
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 Code Section 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); provided,
however, that Gross Asset Values shall not be adjusted to the extent the
Partners agree (and in the event the Partners fail to so agree, as
determined by the Appraisal Procedure) that an adjustment pursuant to
clause (ii) of this definition is necessary or appropriate in connection
with a transaction that would otherwise result in an adjustment pursuant to
clause (iv) of this definition. If the Gross Asset Value of an asset has
been determined or adjusted pursuant to clauses (i) and (ii) of this
definition or clause (iv) of this definition, such Gross Asset Value shall
thereafter be adjusted by the Depreciation taken into account with respect
to such asset; and
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the Gross Asset Value of any asset owned indirectly by the Partnership
through a subsidiary partnership shall be determined pursuant to the terms
of the partnership agreement for such subsidiary partnership.
"Indebtedness" means, with respect to any Person, (a) indebtedness of such Person for borrowed money or for the deferred purchase price of property or of services (other than obligations under agreements for the purchase of goods and services in the normal course of business which are not more than 30 days past due; (b) obligations of such Person under Capital Leases; (c) obligations of such Person pursuant to interest hedging transactions; (d) obligations of such Person in respect of letters of credit; (e) obligations of such Person under direct and indirect guarantees in respect of, and obligations (contingent or otherwise) to purchase or otherwise acquire, or otherwise assure a creditor against loss in respect of, indebtedness or obligations of others of the kinds referred to in clause (a), (b,), (c) or (d) above (other than endorsements of negotiable instruments in the ordinary course of business); and (f) any obligations of such Person or a Commonly Controlled Entity to a Multi-Employer Plan. For purposes of clarity, "Indebtedness" includes the obligations of the Partnership to repay amounts borrowed under, and to pay other amounts owing under, the Project Loan Documents.
"Initial Capital Contribution" means, with respect to Cogentrix GP, the amount of $20 and, with respect to Cogentrix LP, means the amount of $980.
"Internal Rate of Return" (whether or not capitalized) means the return to capital calculated at each calendar quarter end in accordance with Schedule 1.1(a), attached hereto and incorporated herein by reference.
"Lien" means any mortgage, deed of trust, security interest, pledge, hypothecation, encumbrance or lien (statutory or other) of any kind or nature whatsoever (including, without limitation, any agreement to give any of the foregoing, any conditional sale or other title retention agreement, any financing lease having substantially the same economic effect as any such agreement, and the filing of any statement under the Uniform Commercial Code or comparable law of any jurisdiction).
"Limited Partner" means each of Cogentrix LP and VF and any Person who becomes a limited partner of the Partnership in accordance with the terms of this Agreement and is shown as such on the books and records of the Partnership.
"Losses" has the meaning given to it in the definition of "Profits."
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"Management Agreement" means the Management Agreement dated the same date as this Agreement by and between the Partnership and Agro Power, as it may be amended, supplemented or otherwise modified and in effect from time to time, pursuant to which Agro Power will provide operation and maintenance services to the Partnership.
"Management Committee" means the Management Committee of the Partnership referred to in Section 6.1.
"Marketing Agreement" means the Marketing Agreement dated the same date as this Agreement by and between the Partnership and VF, as it may be amended, supplemented or otherwise modified and in effect from time to time, pursuant to which VF will agree to market tomatoes produced by the Partnership.
"Multi-Employer Plan" means, with respect to any Person, a Multi-Employer Plan as defined in Section 3(37) of ERISA to which contributions have been made by such Person or any ERISA Affiliate and which is covered by Title IV of ERISA.
"Net Distributable Cash" means for any period, an amount equal to all cash received by the Partnership during such period, including cash, but not limited to, cash from operations, reductions in reserves, casualty proceeds, rebates and other extraordinary items, less (a) principal, interest and other payments made under or pursuant to the Construction Term Facility, (b) interest and fees paid pursuant to the Revolving Facility, or other borrowings, (c) all cash expenditures of and payments made by the Partnership, and (d) any reserves established by the Management Committee of the Partnership, and subject to the limitations on distributions, if any, imposed pursuant to the terms of the Project Loan Documents.
"Nonrecourse Deductions" shall have the meaning set forth in Regulations Sections 1.704-2(b) and (c). The amount of Nonrecourse Deductions for a Partnership fiscal year equals the excess, if any, of the net increase, if any, in the amount of Partnership minimum gain during the fiscal year over the aggregate amount of any distributions during that fiscal 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).
"Operating Budget" means the business plan and budget required to be provided to the Partnership pursuant to the Management Agreement.
"Operating Management Fee" means a management fee to be paid to Agro Power in accordance with the Management Agreement.
"Partner" means any of the General Partners or the Limited Partners.
"Partner Nonrecourse Deductions" shall have the meaning specified in Regulations Section 1.704-2(i)(2).
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"Partnership" means Village Farms of Texas, L.P., the limited partnership formed pursuant to this Agreement and the filing of the Certificate of Limited Partnership with the Delaware Secretary of State.
"Partnership Books" means the books and records maintained by the Partnership and reviewed within sixty (60) days of each fiscal year end by the Management Committee, in which records and information relating to the ownership of the Partnership, the constituency of the Management Committee and actions taken by the Management Committee or the Partners is maintained, including but not limited to, a register of the Partners, each Partner's Capital Account, each Partner's Percentage Interest, actions taken by the Management Committee and the Partners, and this Agreement and any amendments hereto.
"Partnership Interest" means, with respect to any Partner, the interest of such Partner in the Partnership, whether general or limited, at any particular time, including the rights and obligations of such Partner as provided in this Agreement and the Delaware Act.
"Partnership Percentage" means, with respect to any Partner, at any time, the percentage specified as such Partner's "Partnership Percentage" at the time such Partner was admitted to the Partnership, as adjusted in accordance with the terms of this Agreement. The initial Partnership Percentages are as follows:
Cogentrix GP 1%
Cogentrix LP 49%
VF Delaware 1%
VF 49%
"Permitted Liens" means Liens in favor of any Person other than the Partners or any of their respective Affiliates, that (a) arise in the ordinary course of business of the Partnership (including, without limitation, landlord's materialmen's, mechanic's, worker's, repairmen's and employee's Liens and similar Liens which arise in connection with any tax, assessment, governmental charge or levy) and (b) do not secure Indebtedness.
"Person" means an individual, partnership, corporation, business trust, joint stock company, trust, unincorporated association, joint venture, governmental authority or other entity of whatever nature.
"Profits" and "Losses" mean, for any period, an amount equal to the Partnership's taxable income or loss for such 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:
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;
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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 computing Profits or Losses pursuant to this definition shall be
subtracted from such taxable income or loss;
gain and loss with respect to the disposition of any Partnership asset
(both directly owned assets and assets owned indirectly through a
subsidiary partnership) shall be computed with respect to the Gross Asset
Value rather than adjusted tax basis of such asset;
in lieu of the depreciation, amortization, and other cost recovery
deductions taken into account in computing taxable income or loss, there
shall be taken into account Depreciation for such fiscal year or other
period; and
in the event of an adjustment in the Gross Asset Value of any
Partnership asset pursuant to clause (b) of the definition of "Gross Asset
Value" herein, 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 and Losses.
"Project" means an approximately 41-acre venlo style greenhouse to be located on the Site which is to be constructed in two phases of 20.5-acres each and on which the Partnership will produce tomatoes for sale under the Marketing Agreement.
"Project Assets" has the meaning set forth in Section 3.1(a).
"Project Budget" means the pro forma budget of total Project costs attached hereto as Schedule 1.1(b), as amended or modified from time to time in accordance with subsection 6.2(i).
"Project Credit Facilities" means, collectively, the Construction/Term Facility and the Revolving Facility.
"Project Documents" means the agreements and instruments listed on Schedule 1.1(c) attached hereto and incorporated herein by reference as the same may be amended, supplemented or otherwise modified in accordance with Section 6.2 hereof and in effect from time to time.
"Project Loan Documents" means the agreements and instruments executed by, between or among the Partnership, Administrative Agent, Construction/Term Loan Lender, Revolver Lender, and any other party relating to the Construction/Term Loan Facility and/or the Revolving Facility, as the same may be amended, supplemented or otherwise modified in accordance with Section 6.2 hereof and in effect from time to time.
"Regulations" means the temporary, proposed and final regulations under the Code and any successor provisions thereto.
"Requirement of Law" means, as to any Person, (a) the certificate of incorporation and by-laws or partnership agreement or other organizational or governing documents of such
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Person, and (b) any law, treaty, rule or regulation or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its properties or to which such Person or any of its properties is subject and the violation of which, or which determination, could reasonably be expected to (i) have a material adverse effect on the business, operations, properties, condition (financial or otherwise) or prospects of such Person or (ii) materially adversely affect the ability of such Person to perform its obligations under the Project Loan Documents or the Project Documents to which it is a party.
"Revolver Lender" means Texas Production Credit Association or its successor under the Revolving Facility.
"Revolving Facility" means a loan facility in the amount of $2,500,000.00 provided by the Revolver Lender pursuant to the Project Loan Documents.
"Second Priority Return" means the receipt by Cogentrix GP and Cogentrix LP of cash distributions of Net Distributable Cash in an aggregate amount sufficient to provide each of Cogentrix GP and Cogentrix LP, as the case may be, with an Internal Rate of Return on its respective Cogentrix Investment of [information omitted and subject to request for confidential treatment]% inclusive of the First P...
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