BEE » Topics » Section 4.1 Identity of Partners and Percentage Interests .

This excerpt taken from the BEE 10-K filed Mar 2, 2006.

Section 4.1 Identity of Partners and Percentage Interests.


(a) Partners. The Partners of the Company shall be the Class A Partners and the Class B Limited Partners.


(b) Class A Percentage Interests. The Class A Percentage Interests for the Class A Partners are as follows:



   Class A Percentage

    Common Capital1

General Partner

   0.5000 %     —  


   44.0686 %   $ 4,806,000


   40.1865 %   $ 4,334,000

KSL Newco

   14.2449 %   $ 1,536,000

DC Corp

   1.0000 %   $ 108,000

1 Estimates—TBD at closing. The total equity for North Beach is approximately $24,600,000. The allocations among the Class A Partners and the Class B Partners will be based upon the allocations that are applied in the Hotel Partnership Agreement.



(c) Class B Percentage Interests. The initial Class B Percentage Interests and Preferred Capital of the respective Class B Limited Partners are as follows:



   Class B Percentage

    Preferred Capital2

DC Corp

   71.6744 %   $ 9,831,000


   14.0807 %   $ 1,931,000

KSL Newco

   14.2449 %   $ 1,954,000


Section 4.2 Capital Accounts. Upon the execution and delivery of this Agreement each Partner will have the Capital Account set forth on Exhibit B.


Section 4.3 Additional Capital Contributions. The Class A Partners shall be required to make Additional Capital Contributions to the Company, for the purposes and in accordance with the procedures set forth below in this Section 4.3:


(a) Necessary Expenditures and Other Costs. If at any time and from time to time after the Effective Date, the General Partner determines that the amount of the Company’s Necessary Expenditures exceeds the amount of funds then available to the Company from prior Capital Contributions, Property revenues, Loans and any reserves previously established by the Company, the Class A Partners shall make Additional Capital Contributions to fund such Necessary Expenditures. All such Additional Capital Contributions shall be made by the Class A Partners in cash or current funds, pro rata, in proportion to their respective Percentage Interests.


(b) Procedure For Additional Capital Contributions Not Due to Deadlock. (i) If, as and when Additional Capital Contributions are (i) required as determined pursuant to Section 4.3(a) or (ii) Approved by the Class A Partners pursuant to Section 6.4 hereof, the General Partner shall deliver to each Class A Partner a written notice requesting such Additional Capital Contributions (a “Capital Call Notice”). Any Capital Call Notice shall specify the date (the “Due Date”) on or before which such funds are required by the Company, which shall be at least twenty-five (25) days after delivery of the Capital Call Notice except for Additional Capital Contributions for Emergency Costs, which shall be payable within ten (10) days after delivery of the Capital Call Notice. The Capital Call Notice shall specify the use of the proceeds of the contributions to be made. Each Class A Partner shall, on or before the Due Date, pay to the Company in cash or current funds such Class A Partner’s proportionate share of the amount specified in the Capital Call Notice in accordance with its Percentage Interest. For purposes of Section 10.1(a), it

2 Estimates—TBD at closing.



shall be a Contribution Event as to a Class A Partner if the Class A Partner does not make the payment required by any Capital Call Notice by the applicable Due Date.


(c) Procedure For Additional Contributions In the Event of a Deadlock. In the event the General Partner is not able to obtain the Approval of the Class A Partners for an Additional Capital Contribution and the General Partner determines that the failure to obtain Additional Capital Contributions would have a material and adverse effect on the Company, the General Partner may give written notice (a “Subscription Notice”) thereof to the Class A Partners to such effect, setting forth in the Subscription Notice the amount or amounts which it believes to be required by the Company (the “Additional Contributions”), and the terms and conditions on which it proposes to obtain the Additional Contributions. The terms and conditions of such Subscription Notice may include preferential rights on distributions and liquidation and class voting. The Subscription Notice shall include a term sheet detailing the terms of the Additional Contributions (the “Term Sheet”). The Class A Partners shall have the right, for a period of thirty (30) days after the date of the Subscription Notice (the “Deadlock Response Period”), to subscribe for their pro rata share (in accordance with their respective Class A Percentage Interests) of the Additional Contributions. During the Deadlock Response Period, the Class A Partners may commit to subscribe for some or all of any Additional Contributions not taken up within the Deadlock Response Period (the “Unfulfilled Additional Contributions”). Any Unfulfilled Additional Contributions shall be either (i) sold to the Class A Partners pursuant to their commitments to purchase such Unfulfilled Additional Contributions or (ii) re-offered to the other Class A Partners who have subscribed to make Additional Contributions as nearly as practicable in accordance with their Percentage Interests. If the Class A Partners do not subscribe for all the requested Additional Contributions, the General Partner may offer to third parties all or some of the Additional Contributions in accordance with the terms and conditions offered to the Partners. If, as a condition to subscribing for such Additional Contributions, a third party conditions its purchase on the acquisition of a minimum amount of Additional Contributions, the General Partner may, in its sole discretion, reduce on a pro rata basis the amounts which the subscribing Class A Partners may acquire. If the General Partner is unable to obtain subscriptions for all of the amount of Additional Contributions (whether from existing Class A Partners or other persons) within ninety (90) days, the General Partner may issue a revised Subscription Notice in accordance with this Section 4.3(c). Once Additional Contributions are fully subscribed, the General Partner shall prepare an amendment to this Agreement reflecting any terms or any provisions included in the Term Sheet which require such an amendment, if any, and such amendment shall be deemed in full force and effect and the rights of all Partners shall be modified in accordance therewith.



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