Management. (a) The General Partner shall conduct, direct and manage all activities of the Partnership. Except as otherwise expressly provided in this Agreement, all management powers over the business and affairs of the Partnership shall be exclusively vested in the General Partner, and no Limited Partner or Assignee shall have any management power over the business and affairs of the Partnership. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or which are granted to the General Partner under any other provision of this Agreement, the General Partner, subject to Section 7.3, shall have full power and authority to do all things and on such terms as it, in its sole discretion, may deem necessary or appropriate to conduct the business of the Partnership, to exercise all powers set forth in Section 2.5 and to effectuate the purposes set forth in Section 2.4, including the following: (i) the making of any expenditures, the lending or borrowing of money, the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtedness, including indebtedness that is convertible into Partnership Securities, and the incurring of any other obligations; (ii) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership; (iii) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the Partnership or the merger or other combination of the Partnership with or into another Person (the matters described in this clause (iii) being subject, however, to any prior approval that may be required by Section 7.3); (iv) the use of the assets of the Partnership (including cash on hand) for any purpose consistent with the terms of this Agreement, including the financing of the conduct of the operations of the Partnership Group; subject to Section 7.6(a), the lending of funds to other Persons (including other Group Members), the repayment or guarantee of obligations of the Partnership Group and the making of capital contributions to any member of the Partnership Group; (v) the negotiation, execution and performance of any contracts, conveyances or other instruments (including instruments that limit the liability of the Partnership under contractual arrangements to all or particular assets of the Partnership, with the other party to the contract to have no recourse against the General Partner or its assets other than its interest in the Partnership, even if same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case); (vi) the distribution of Partnership cash; (vii) the selection and dismissal of employees (including employees having titles such as “president,” “vice president,” “secretary” and “treasurer”) and agents, outside attorneys, accountants, consultants and contractors and the determination of their compensation and other terms of employment or hiring; (viii) the maintenance of such insurance for the benefit of the Partnership Group and the Partners as it deems necessary or appropriate; (ix) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies or other relationships (including the acquisition of interests in, and the contributions of property to, any Group Member from time to time) subject to the restrictions set forth in Section 2.4; (x) the control of any matters affecting the rights and obligations of the Partnership, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigation and the incurring of legal expense and the settlement of claims and litigation; (xi) the indemnification of any Person against liabilities and contingencies to the extent permitted by law; (xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.8); (xiii) unless restricted or prohibited by Section 5.7, the purchase, sale or other acquisition or disposition of Partnership Securities, or the issuance of additional options, rights, warrants and appreciation rights relating to Partnership Securities; and (xiv) the undertaking of any action in connection with the Partnership’s participation in any Group Member as a member or partner. (b) Notwithstanding any other provision of this Agreement, the Operating Company Agreement, the Delaware Act or any applicable law, rule or regulation, each of the Partners and the Assignees and each other Person who may acquire an interest in Partnership Securities hereby (i) approves, ratifies and confirms the execution, delivery and performance by the parties thereto of the Operating Company Agreement, any other limited liability company or partnership agreement of any other Group Member, the Underwriting Agreement, the Omnibus Agreement, the Contribution Agreement and the other agreements described in or filed as exhibits to the Registration Statement that are related to the transactions contemplated by the Registration Statement; (ii) agrees that the General Partner (on its own or through any officer of the Partnership) is authorized to execute, deliver and perform the agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership without any further act, approval or vote of the Partners or the Assignees or the other Persons who may acquire an interest in Partnership Securities; and (iii) agrees that the execution, delivery or performance by the General Partner, any Group Member or any Affiliate of any of them, of this Agreement or any agreement authorized or permitted under this Agreement (including the exercise by the General Partner or any Affiliate of the General Partner of the rights accorded pursuant to Article XV), shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement (or any other agreements) or of any duty stated or implied by law or equity.
Appears in 3 contracts
Samples: Contribution Agreement (Natural Resource Partners Lp), Agreement of Limited Partnership (Natural Resource Partners Lp), Limited Partnership Agreement (Natural Resource Partners Lp)
Management. (a) The General Partner shall conduct, direct and manage all activities of the Partnership. Except as otherwise expressly provided in this Agreement, all management powers over the business and affairs of the Partnership are and shall be exclusively vested in the General Partner, and no Limited Partner or Assignee shall have any right to participate in or exercise control or management power over the business and affairs of the Partnership. The General Partner may not be removed by the Partners with or without cause, except with the Consent of the General Partner. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or which that are granted to the General Partner under any other provision of this Agreement, the General Partner, subject to the other provisions hereof including Section 7.3, shall have full power and authority to do all things and on such terms as it, in its sole discretion, may deem deemed necessary or appropriate desirable by it to conduct the business of the Partnership, to exercise all powers set forth in Section 2.5 3.2 hereof and to effectuate the purposes set forth in Section 2.43.1 hereof, including the followingincluding, without limitation:
(i) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money or selling assets to permit the Partnership to make distributions to its Partners in such amounts as will permit the Company (so long as the Company qualifies as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Code Section 4981) and to make distributions to its stockholders sufficient to permit the Company to maintain REIT status or otherwise to satisfy the REIT Requirements), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtednessindebtedness (including the securing of same by deed to secure debt, including indebtedness that is convertible into Partnership Securitiesmortgage, deed of trust or other lien or encumbrance on the Partnership’s assets) and the incurring of any other obligationsobligations that it deems necessary for the conduct of the activities of the Partnership;
(ii) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership;
(iii) the acquisition, dispositionsale, mortgagetransfer, pledgeexchange or other disposition of any, encumbrance, hypothecation all or exchange of any or substantially all of the assets of the Partnership (including, but not limited to, the exercise or grant of any conversion, option, privilege or subscription right or any other right available in connection with any assets at any time held by the Partnership) or the merger merger, consolidation, reorganization or other combination or conversion of the Partnership with or into another Person (the matters described in this clause (iii) being subject, however, to any prior approval that may be required by Section 7.3)entity;
(iv) the mortgage, pledge, encumbrance or hypothecation of any assets of the Partnership, the use of the assets of the Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms that it sees fit, including including, without limitation, the financing of the conduct operations and activities of the operations General Partner, the Partnership or any of the Partnership Group; subject to Section 7.6(a)Partnership’s Subsidiaries, the lending of funds to other Persons (including other Group Members)including, without limitation, the Partnership’s Subsidiaries) and the repayment or guarantee of obligations of the Partnership, its Subsidiaries and any other Person in which the Partnership Group has an equity investment, and the making of capital contributions to any member of and equity investments in the Partnership GroupPartnership’s Subsidiaries;
(v) the management, operation, leasing, landscaping, repair, alteration, demolition, replacement or improvement of any Property, including, without limitation, any Contributed Property, or other asset of the Partnership or any Subsidiary;
(vi) the negotiation, execution and performance of any contracts, leases, conveyances or other instruments (including instruments that limit the liability of General Partner considers useful or necessary to the Partnership under contractual arrangements to all or particular assets conduct of the Partnership, with ’s operations or the other party to the contract to have no recourse against implementation of the General Partner or its assets Partner’s powers under this Agreement, including contracting with contractors, developers, consultants, accountants, legal counsel, other than its interest in professional advisors and other agents and the payment of their expenses and compensation out of the Partnership, even if same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case);
(vi) the distribution of Partnership cash’s assets;
(vii) the selection distribution of Partnership cash or other Partnership assets in accordance with this Agreement, the holding, management, investment and dismissal reinvestment of employees (including employees having titles such as “president,” “vice president,” “secretary” cash and “treasurer”) and agentsother assets of the Partnership, outside attorneys, accountants, consultants and contractors and the determination collection and receipt of their compensation revenues, rents and other terms income of employment or hiringthe Partnership;
(viii) the maintenance of such insurance for the benefit of the Partnership Group and the Partners as it deems necessary or appropriate, including, without limitation, (i) casualty, liability and other insurance on the Properties of the Partnership and (ii) liability insurance for the Indemnitees hereunder;
(ix) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies companies, joint ventures or other relationships that it deems desirable (including including, without limitation, the acquisition of interests in, and the contributions of property to, any Group Member Subsidiary and any other Person in which it has an equity investment from time to time) subject ); provided, however, that, as long as the Company has determined to continue to qualify as a REIT, the restrictions set forth General Partner may not engage in any such formation, acquisition or contribution that would cause the Company to fail to qualify as a REIT within the meaning of Code Section 2.4856(a);
(x) the control of any matters affecting the rights and obligations of the Partnership, including the bringing settlement, compromise, submission to arbitration or any other form of dispute resolution, or abandonment, of any claim, cause of action, liability, debt or damages, due or owing to or from the Partnership, the commencement or defense of suits, legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, and defending the representation of actions at law the Partnership in all suits or in equity and otherwise engaging in the conduct legal proceedings, administrative proceedings, arbitrations or other forms of litigation and dispute resolution, the incurring of legal expense expense, and the settlement of claims and litigation;
(xi) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.8);
(xiii) unless restricted or prohibited by Section 5.7, the purchase, sale or other acquisition or disposition of Partnership Securities, or the issuance of additional options, rights, warrants and appreciation rights relating to Partnership Securities; and
(xivxi) the undertaking of any action in connection with the Partnership’s participation direct or indirect investment in any Group Member Subsidiary or any other Person (including, without limitation, the contribution or loan of funds by the Partnership to such Persons);
(xii) except as otherwise specifically set forth in this Agreement, the determination of the fair market value of any Partnership property distributed in kind using such reasonable method of valuation as it may adopt; provided that such methods are otherwise consistent with the requirements of this Agreement;
(xiii) the enforcement of any rights against any Partner pursuant to representations, warranties, covenants and indemnities relating to such Partner’s contribution of property or assets to the Partnership;
(xiv) the exercise, directly or indirectly, through any attorney-in-fact acting under a member general or partnerlimited power of attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(xv) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(xvi) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest, pursuant to contractual or other arrangements with such Person;
(xvii) the making, execution and delivery of any and all deeds, leases, notes, deeds to secure debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate in the judgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement;
(xviii) the issuance of additional Partnership Units, as appropriate and in the General Partner’s sole and absolute discretion, in connection with Capital Contributions by Additional Limited Partners and additional Capital Contributions by Partners pursuant to Article IV hereof;
(xix) the interpretation of the terms and provisions of this Agreement; and
(xx) an election to dissolve the Partnership pursuant to Section 13.1(c) hereof.
(b) Notwithstanding any other provision of this Agreement, the Operating Company Agreement, the Delaware Act or any applicable law, rule or regulation, each Each of the Limited Partners and the Assignees and each other Person who may acquire an interest agrees that, except as provided in Partnership Securities hereby (i) approvesSection 7.3 hereof, ratifies and confirms the execution, delivery and performance by the parties thereto of the Operating Company Agreement, any other limited liability company or partnership agreement of any other Group Member, the Underwriting Agreement, the Omnibus Agreement, the Contribution Agreement and the other agreements described in or filed as exhibits to the Registration Statement that are related to the transactions contemplated by the Registration Statement; (ii) agrees that the General Partner (on its own or through any officer of the Partnership) is authorized to execute, deliver and perform the above-mentioned agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership without any further act, approval or vote of the Partners Partners, notwithstanding any other provision of this Agreement, the Act or the Assignees any applicable law, rule or the other Persons who may acquire an interest in Partnership Securities; and (iii) agrees that the regulation. The execution, delivery or performance by the General Partner, any Group Member Partner or any Affiliate the Partnership of any of them, of this Agreement or any agreement authorized or permitted under this Agreement (including the exercise by the General Partner or any Affiliate of the General Partner of the rights accorded pursuant to Article XV), shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement (or any other agreements) or of any duty stated or implied by law or equity.
(c) At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain working capital and other reserves in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
(d) In exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner (including the General Partner) of any action taken by it. The General Partner and the Partnership shall not have liability to a Limited Partner under any circumstances as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner pursuant to its authority under this Agreement.
Appears in 3 contracts
Samples: Limited Partnership Agreement (NorthStar Realty Europe Corp.), Agreement of Limited Partnership (NorthStar Realty Europe Corp.), Limited Partnership Agreement (Northstar Realty Finance Corp.)
Management. (a) The General Partner shall conduct, direct and manage all activities of the Partnership. A. Except as otherwise expressly provided in this Agreement, all management powers over the business and affairs of the Partnership are and shall be exclusively vested in the General Partner, and no Limited Partner or Assignee shall have any right to participate in or exercise control or management power over the business and affairs of the Partnership. The General Partner may not be removed by the Limited Partners with or without cause, except with the consent of the General Partner. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or which are granted to the General Partner under any other provision of this Agreement, the General Partner, subject to the other provisions hereof including Section 7.37.3 and Section 11.2, shall have full power and authority to do all things and on such terms as it, in its sole discretion, may deem deemed necessary or appropriate desirable by it to conduct the business of the Partnership, to exercise all powers set forth in Section 2.5 3.2 and to effectuate the purposes set forth in Section 2.43.1 (subject to the proviso in Section 3.2), including the followingincluding, without limitation:
(i1) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money to permit the Partnership to make distributions to its Partners in such amounts as will permit the Company (so long as the Company has determined to qualify as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Section 4981 of the Code) and to make distributions to its stockholders sufficient to permit the Company to maintain REIT status), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtednessindebtedness (including the securing of same by deed, including indebtedness that is convertible into Partnership Securitiesmortgage, deed of trust or other lien or encumbrance on the Partnership’s assets) and the incurring of any other obligationsobligations it deems necessary for the conduct of the activities of the Partnership;
(ii2) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership, the registration of any Class of securities of the Partnership under Exchange Act and the listing of any debt securities of the Partnership on any exchange;
(iii3) subject to Section 11.2, the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the Partnership (including the exercise or grant of any conversion, option, privilege, or subscription right or other right available in connection with any assets at any time held by the Partnership) or the merger or other combination of the Partnership with or into another Person entity on such terms as the General Partner deems proper (all of the matters described in this clause (iii) being subject, however, foregoing subject to any prior approval that may be only to the extent required by Section 7.3);
(iv4) the acquisition, disposition, mortgage, pledge, encumbrance or hypothecation of any or all of the assets of the Partnership, and the use of the assets of the Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms the General Partner deems proper, including including, without limitation, the financing of the conduct of the operations of the Company, the Partnership Group; subject to Section 7.6(a)or any Subsidiary of the Company and/or the Partnership, the lending of funds to other Persons (including other Group Members)including, without limitation, the Company or any Subsidiary of the Company and/or the Partnership) and the repayment or guarantee of obligations of the Partnership Group and its Subsidiaries and any other Person in which it has an equity investment, and the making of capital contributions to its Subsidiaries;
(5) the management, operation, leasing, landscaping, repair, alteration, demolition or improvement of any member real property or improvements owned by the Partnership or any Subsidiary of the Partnership Groupor any Person in which the Partnership has made a direct or indirect equity investment;
(v6) the negotiation, execution execution, and performance of any contracts, leases, conveyances or other instruments (including instruments that limit the liability of General Partner considers useful or necessary to the Partnership under contractual arrangements to all or particular assets conduct of the Partnership, with ’s operations or the other party to the contract to have no recourse against implementation of the General Partner or its assets Partner’s powers under this Agreement, including contracting with contractors, developers, consultants, accountants, legal counsel, other than its interest in professional advisors and other agents and the payment of their expenses and compensation out of the Partnership, even if same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case)’s assets;
(vi7) the distribution of Partnership cashcash or other Partnership assets in accordance with this Agreement;
(vii8) the holding, managing, investing and reinvesting of cash and other assets of the Partnership;
(9) the collection and receipt of revenues and income of the Partnership;
(10) the establishment of one or more divisions of the Partnership, the selection and dismissal of employees of the Partnership (including including, without limitation, employees having titles such as “president,” “vice president,” “secretary” and “treasurer”) ” of the Partnership), and agents, outside attorneys, accountants, consultants and contractors of the Partnership, and the determination of their compensation and other terms of employment or hiringhiring including waivers of conflicts of interest and the payment of their expenses and compensation out of the Partnership’s assets;
(viii11) the maintenance of such insurance for the benefit of the Partnership Group and Partnership, the Partners and directors and officers thereof as it deems necessary or appropriate;
(ix12) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies corporations or other relationships that it deems desirable (including including, without limitation, the acquisition of interests in, and the contributions of property to, any Group Member Subsidiary and any other Person in which it has an equity investment from time to time) subject ); provided, that, as long as the Company has determined to continue to qualify as a REIT, the restrictions set forth Partnership may not engage in Section 2.4any such formation, acquisition or contribution that would cause the Company to fail to qualify as a REIT;
(x13) the control of any matters affecting the rights and obligations of the Partnership, including the bringing settlement, compromise, submission to arbitration or any other form of dispute resolution, or abandonment of, any claim, cause of action, liability, debt or damages, due or owing to or from the Partnership, the commencement or defense of suits, legal proceedings, administrative proceedings, arbitration or other forms of dispute resolution, and defending the representation of actions at law the Partnership in all suits or in equity and otherwise engaging in the conduct legal proceedings, administrative proceedings, arbitrations or other forms of litigation and dispute resolution, the incurring of legal expense expense, and the settlement of claims and litigation;
(xi) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.8);
(xiii) unless restricted or prohibited by Section 5.7, the purchase, sale or other acquisition or disposition of Partnership Securities, or the issuance of additional options, rights, warrants and appreciation rights relating to Partnership Securities; and
(xiv14) the undertaking of any action in connection with the Partnership’s participation direct or indirect investment in any Group Member as a member Subsidiary or partner.any other Person (including, without limitation, the contribution or loan of funds by the Partnership to such Persons, incurring indebtedness on behalf of, or guarantying the obligations of, any such Persons);
(b15) Notwithstanding the determination of the fair market value of any Partnership property distributed in kind using such reasonable method of valuation as the General Partner may adopt;
(16) the exercise, directly or indirectly, through any attorney-in-fact acting under a general or limited power of attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(17) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other provision Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(18) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest pursuant to contractual or other arrangements with such Person;
(19) the making, execution and delivery of any and all deeds, leases, notes, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate, in the judgment of the General Partner, for the accomplishment of any of the powers of the General Partner enumerated in this Agreement;
(20) the maintenance of the Partnership’s books and records;
(21) the issuance of additional Partnership Units of any Class, as appropriate and in the General Partner’s sole and absolute discretion, in connection with capital contributions by Additional Limited Partners and additional capital contributions by Partners pursuant to Article 4 hereof;
(22) the distribution of cash to acquire Partnership Units of any Class held by a Limited Partner in connection with a Limited Partner’s exercise of its Redemption Right under Section 8.5 hereof;
(23) the amendment and restatement of Exhibit A hereto to reflect at all times the capital contributions and Percentage Interests of the Partners as the same are adjusted from time to time to the extent necessary to reflect redemptions, Capital Contributions, the issuance of Partnership Units of any Class, the admission of any Additional Limited Partner or Substituted Limited Partner or otherwise, which amendment and restatement, notwithstanding anything in this Agreement to the contrary, shall not be deemed an amendment to this Agreement, as long as the Operating Company matter or event being reflected in Exhibit A hereto otherwise is authorized by this Agreement, ;
(24) the Delaware Act taking of any and all acts and things necessary or any applicable law, rule or regulation, each prudent to ensure that the Partnership will not be classified as a “publicly traded partnership” for purposes of Section 7704 of the Partners Code, including but not limited to imposing restrictions on transfers and restrictions on redemptions; and
(25) to take such other action, execute, acknowledge, swear to or deliver such other documents and instruments, and perform any and all other acts that the Assignees General Partner deems necessary or appropriate for the formation, continuation and each other Person who may acquire an interest in conduct of the business and affairs of the Partnership Securities hereby (iincluding, without limitation, all actions consistent with allowing the Company at all times to qualify as a REIT unless the Company voluntarily terminates its REIT status) approves, ratifies and confirms to possess and enjoy all the execution, delivery rights and performance powers of a general partner as provided by the parties thereto Act.
B. Each of the Operating Company Agreement, any other limited liability company or partnership agreement of any other Group Member, the Underwriting Agreement, the Omnibus Agreement, the Contribution Agreement and the other agreements described in or filed as exhibits to the Registration Statement that are related to the transactions contemplated by the Registration Statement; (ii) Limited Partners agrees that the General Partner (on its own or through any officer of the Partnership) is authorized to execute, deliver and perform the above-mentioned agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership without any further act, approval or vote of the Partners Partners, notwithstanding any other provision of this Agreement (except as provided in Section 7.3), the Act or any applicable law, rule or regulation, to the Assignees fullest extent permitted under the Act or the other Persons who may acquire an interest in Partnership Securities; and (iii) agrees that the applicable law, rule or regulation. The execution, delivery or performance by the General Partner, any Group Member Partner or any Affiliate the Partnership of any of them, of this Agreement or any agreement authorized or permitted under this Agreement (including the exercise by the General Partner or any Affiliate of the General Partner of the rights accorded pursuant to Article XV), shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement (or any other agreements) or of any duty stated or implied by law or equity.
C. At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain working capital and other reserves in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
D. At all times from and after the date hereof, the General Partner may cause the Partnership to obtain and maintain (i) casualty, liability and other insurance on the properties of the Partnership, (ii) liability insurance for the Indemnities hereunder and (iii) such other insurance as the General Partner, in its sole and absolute discretion, determines to be necessary.
E. In exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner (including the General Partner) of any action taken (or not taken) by it. The General Partner and the Partnership shall not have liability to a Limited Partner under any circumstances as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner pursuant to its authority under this Agreement.
Appears in 3 contracts
Samples: Limited Partnership Agreement (Cole Real Estate Income Strategy (Daily Nav), Inc.), Limited Partnership Agreement (Cole Real Estate Income Strategy (Daily Nav), Inc.), Limited Partnership Agreement (Cole Real Estate Income Strategy (Daily Nav), Inc.)
Management. (a) The General Partner shall conduct, direct and manage all activities of the Partnership. Except as otherwise expressly provided in this Agreement, all management powers over the business and affairs of the Partnership shall be exclusively vested in the General Partner, and no Limited Partner or Assignee shall have any management power over the business and affairs of the Partnership. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or which are granted to the General Partner under any other provision of this Agreement, the General Partner, subject to Section 7.3, shall have full power and authority to do all things and on such terms as it, in its sole discretion, may deem necessary or appropriate to conduct the business of the Partnership, to exercise all powers set forth in Section 2.5 and to effectuate the purposes set forth in Section 2.4, including the following:
(i) the making of any expenditures, the lending or borrowing of money, the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtedness, including indebtedness that is convertible into Partnership Securities, and the incurring of any other obligations;
(ii) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership;
(iii) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the Partnership or the merger or other combination of the Partnership with or into another Person (the matters described in this clause (iii) being subject, however, to any prior approval that may be required by Section 7.3);
(iv) the use of the assets of the Partnership (including cash on hand) for any purpose consistent with the terms of this Agreement, including the financing of the conduct of the operations of the Partnership Group; subject to Section 7.6(a), the lending of funds to other Persons (including other Group Members), the repayment or guarantee of obligations of the Partnership Group and the making of capital contributions to any member of the Partnership Group;
(v) the negotiation, execution and performance of any contracts, conveyances or other instruments (including instruments that limit the liability of the Partnership under contractual arrangements to all or particular assets of the Partnership, with the other party to the contract to have no recourse against the General Partner or its assets other than its interest in the Partnership, even if same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case);
(vi) the distribution of Partnership cash;
(vii) the selection and dismissal of employees (including employees having titles such as “"president,” “" "vice president,” “" "secretary” " and “"treasurer”") and agents, outside attorneys, accountants, consultants and contractors and the determination of their compensation and other terms of employment or hiring;
(viii) the maintenance of such insurance for the benefit of the Partnership Group and the Partners as it deems necessary or appropriate;
(ix) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further other limited or general partnerships, joint ventures, corporations, limited liability companies or other relationships (including the acquisition of interests in, and the contributions of property to, any Group Member from time to time) subject to the restrictions set forth in Section 2.4;
(x) the control of any matters affecting the rights and obligations of the Partnership, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigation and the incurring of legal expense and the settlement of claims and litigation;
(xi) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.8);
(xiii) unless restricted or prohibited by Section 5.7, the purchase, sale or other acquisition or disposition of Partnership Securities, or the issuance of additional options, rights, warrants and appreciation rights relating to Partnership Securities; and
(xiv) the undertaking of any action in connection with the Partnership’s 's participation in the Operating Partnership or any Group Member other subsidiary of the Partnership as a member or partner.
(b) Notwithstanding any other provision of this Agreement, the Operating Company Partnership Agreement, the Delaware Act or any applicable law, rule or regulation, each of the Partners and the Assignees and each other Person who may acquire an interest in Partnership Securities hereby (i) approves, ratifies and confirms the execution, delivery and performance by the parties thereto of the Operating Company Agreement, any other limited liability company or partnership agreement of any other Group Member, the Underwriting Partnership Agreement, the Omnibus Agreement, the Contribution Agreement Agreement, the Distribution Agreement, and the Purchase Contract dated _________, 2004 between Penn Octane Corporation and the Operating Partnership and the other agreements described in or filed as exhibits to the Registration Statement that are related to the transactions contemplated by the Registration Statement; (ii) agrees that the General Partner (on its own or through any officer of the Partnership) is authorized to execute, deliver and perform the agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership without any further act, approval or vote of the Partners or the Assignees or the other Persons who may acquire an interest in Partnership Securities; and (iii) agrees that the execution, delivery or performance by the General Partner, any Group Member or any Affiliate of any of them, of this Agreement or any agreement authorized or permitted under this Agreement (including the exercise by the General Partner or any Affiliate of the General Partner of the rights accorded pursuant to Article XV), shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement (or any other agreements) or of any duty stated or implied by law or equity.
Appears in 3 contracts
Samples: Limited Partnership Agreement (Rio Vista Energy Partners Lp), Limited Partnership Agreement (Rio Vista Energy Partners Lp), Limited Partnership Agreement (Rio Vista Energy Partners Lp)
Management. (a) The Managing General Partner of the Partnership generally shall conduct, direct and manage all activities of the PartnershipPartnership generally, and the Managing General Partner of each Series shall conduct, direct and manage all activities of the Series for which it serves as Managing General Partner. Except as otherwise expressly provided in this Agreement, (i) all management powers over the business and affairs of the Partnership generally shall be exclusively vested in the Managing General PartnerPartner of the Partnership generally, and no Limited Partner or Assignee other General Partner shall have any management power over the business and affairs of (or authority to bind) the PartnershipPartnership generally and (ii) all management powers over the business and affairs of each Series shall be exclusively vested in the Managing General Partner of such Series, and no Limited Partner or other General Partner shall have any management power over the business and affairs of (or authority to bind) such Series. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or which that are granted to the a Managing General Partner under any other provision of this Agreement, the each Managing General Partner, subject to any approval required by Section 7.37.4, Section 7.5 or any other provision of this Agreement, shall have full power and authority to do all things and on such terms as it, in its sole discretion, may deem it determines to be necessary or appropriate to conduct the business of the PartnershipPartnership generally or the applicable Series, as the case may be, to exercise all powers set forth in Section 2.5 and to effectuate the purposes set forth in Section 2.4, including the following:
(i) the making of any expenditures, the lending or borrowing of money, the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtedness, including indebtedness that is convertible into Partnership Securities, and the incurring of any other obligations;
(ii) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the PartnershipPartnership and each Series (other than in connection with the matters set forth in Section 9.3);
(iii) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the Partnership applicable Series or the merger or other combination of the Partnership with or into another Person (the matters described in this clause (iii) being subject, however, to any prior approval that may be required by Section 7.3)Person;
(iv) the use of the assets of the Partnership applicable Series (including cash on hand) for any purpose consistent with the terms of this Agreement, including the financing of the conduct of the operations of the Partnership Group; subject to Section 7.6(a), the lending of funds to other Persons (including other Group Members), the repayment or guarantee of obligations of the Partnership Group and the making of capital contributions to any member of the Partnership Group;
(v) the negotiation, execution and performance of any contracts, conveyances or other instruments (including instruments that limit the liability on behalf of the Partnership under contractual arrangements to all generally or particular assets of the Partnership, with the other party to the contract to have no recourse against the General Partner or its assets other than its interest in the Partnership, even if same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case)applicable Series;
(vi) the distribution of Partnership cashcash or property of the applicable Series;
(vii) the selection and dismissal of employees (including employees having titles such as “president,” “vice president,” “secretary” and “treasurer”) and agents, outside attorneys, accountants, consultants and contractors and the determination of their compensation and other terms of employment or hiring;
(viii) the maintenance of such separate or joint insurance policies for the benefit of the Partnership Group and the Partnership, any Series, any Partners as it deems necessary or appropriateany Indemnitees;
(ixviii) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies or other relationships (including the acquisition of interests in, and the contributions of property to, any Group Member from time to time) subject to the restrictions set forth in Section 2.4;
(xix) the control of any matters affecting the rights and obligations of the PartnershipPartnership or the applicable Series, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigation litigation, arbitration or mediation and the incurring of legal expense and the settlement of claims and litigation;; and
(xix) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.8);
(xiii) unless restricted or prohibited by Section 5.7, the purchase, sale or other acquisition or disposition of Partnership Securities, or the issuance of additional options, rights, warrants and appreciation rights relating to Partnership Securities; and
(xiv) the undertaking of any action in connection with the Partnership’s participation in any Group Member as a member or partner.
(b) Notwithstanding any other provision of this Agreement, the Operating Company Agreement, the Delaware Act or any applicable law, rule or regulation, each of the Partners and the Assignees and each other Person who may acquire an interest in Partnership Securities hereby (i) approves, ratifies and confirms the execution, delivery and performance by the parties thereto of the Operating Company Agreement, any other limited liability company or partnership agreement of any other Group Member, the Underwriting Agreement, the Omnibus Agreement, the Contribution Agreement and the other agreements described in or filed as exhibits to the Registration Statement that are related to the transactions contemplated by the Registration Statement; (ii) agrees that the General Partner (on its own or through any officer of the Partnership) is authorized to execute, deliver and perform the agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership without any further act, approval or vote of the Partners or the Assignees or the other Persons who may acquire an interest in Partnership Securities; and (iii) agrees that the execution, delivery or performance by the General Partner, any Group Member or any Affiliate of any of them, of this Agreement or any agreement authorized or permitted under this Agreement (including the exercise by the General Partner or any Affiliate of the General Partner of the rights accorded pursuant to Article XV), shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement (or any other agreements) or of any duty stated or implied by law or equity.
Appears in 3 contracts
Samples: Limited Partnership Agreement (Enbridge Energy Partners Lp), Limited Partnership Agreement (Enbridge Energy Partners Lp), Contribution Agreement (Enbridge Energy Partners Lp)
Management. (a) The General Partner shall conduct, direct and manage all activities of the Partnership. Except as otherwise expressly provided in this Agreement, all management powers over the business and affairs of the Partnership shall be exclusively vested in the General Partner, and no Limited Partner or Assignee shall have any management power over the business and affairs of the Partnership. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or which are granted to the General Partner under any other provision of this Agreement, the General Partner, subject to Section 7.3, shall have full power and authority to do all things and on such terms as it, in its sole discretion, may deem necessary or appropriate to conduct the business of the Partnership, to exercise all powers set forth in Section 2.5 and to effectuate the purposes set forth in Section 2.4, including the following:
(i) the making of any expenditures, the lending or borrowing of money, the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtedness, including indebtedness that is convertible into Partnership Securities, and the incurring of any other obligations;
(ii) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership;
(iii) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the Partnership or the merger or other combination of the Partnership with or into another Person (the matters described in this clause (iii) being subject, however, to any prior approval that may be required by Section 7.3);
(iv) the use of the assets of the Partnership (including cash on hand) for any purpose consistent with the terms of this Agreement, including the financing of the conduct of the operations of the Partnership Group; subject to Section 7.6(a), the lending of funds to other Persons (including other Group Members), the repayment or guarantee of obligations of the Partnership Group and the making of capital contributions to any member of the Partnership Group;
(v) the negotiation, execution and performance of any contracts, conveyances or other instruments (including instruments that limit the liability of the Partnership under contractual arrangements to all or particular assets of the Partnership, with the other party to the contract to have no recourse against the General Partner or its assets other than its interest in the Partnership, even if same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case);
(vi) the distribution of Partnership cash;
(vii) the selection and dismissal of employees (including employees having titles such as “president,” “vice president,” “secretary” and “treasurer”) and agents, outside attorneys, accountants, consultants and contractors and the determination of their compensation and other terms of employment or hiring;
(viii) the maintenance of such insurance for the benefit of the Partnership Group and the Partners as it deems necessary or appropriate;
(ix) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies or other relationships (including the acquisition of interests in, and the contributions of property to, any Group Member from time to time) subject to the restrictions set forth in Section 2.4;
(x) the control of any matters affecting the rights and obligations of the Partnership, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigation and the incurring of legal expense and the settlement of claims and litigation;
(xi) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.84.7);
(xiii) unless restricted or prohibited by Section 5.7, the purchase, sale or other acquisition or disposition of Partnership Securities, or the issuance of additional options, rights, warrants and appreciation rights relating to Partnership Securities; and
(xiv) the undertaking of any action in connection with the Partnership’s participation in any Group Member as a member or partner.
(b) Notwithstanding any other provision of this Agreement, the Operating Company Agreement, the Delaware Act or any applicable law, rule or regulation, each of the Partners and the Assignees and each other Person who may acquire an interest in Partnership Securities hereby (i) approves, ratifies and confirms the execution, delivery and performance by the parties thereto of the Operating Company Agreement, any other limited liability company or partnership agreement of any other Group Member, the Underwriting Agreement, the Omnibus Agreement, the Contribution Agreement and the other agreements described in or filed as exhibits to the Registration Statement that are related to the transactions contemplated by the Registration Statement; (ii) agrees that the General Partner (on its own or through any officer of the Partnership) is authorized to execute, deliver and perform the agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership without any further act, approval or vote of the Partners or the Assignees or the other Persons who may acquire an interest in Partnership Securities; and (iii) agrees that the execution, delivery or performance by the General Partner, any Group Member or any Affiliate of any of them, of this Agreement or any agreement authorized or permitted under this Agreement (including the exercise by the General Partner or any Affiliate of the General Partner of the rights accorded pursuant to Article XV), shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement (or any other agreements) or of any duty stated or implied by law or equity.
Appears in 3 contracts
Samples: Limited Partnership Agreement (Natural Resource Partners Lp), Limited Partnership Agreement (Natural Resource Partners Lp), Limited Partnership Agreement
Management. (a) The General Partner shall conduct, direct and manage all activities of the Partnership. Except as otherwise expressly provided in this Agreement, all management powers over the business and affairs of the Partnership are and shall be exclusively vested in the General Partner, and no Limited Partner or Assignee shall have any right to participate in or exercise control or management power over the business and affairs of the Partnership. The General Partner may not be removed by the Partners with or without cause, except with the consent of the General Partner. In addition to the powers now or hereafter granted to a general partner of a limited partnership under applicable law or which that are granted to the General Partner under any other provision of this Agreement, the General Partner, subject to the other provisions hereof including, without limitation, Section 7.37.03, shall have full power and authority to do all things and on such terms as it, in its sole discretion, may deem deemed necessary or appropriate desirable by it to conduct the business of the Partnership, to exercise all powers set forth in Section 2.5 3.02 hereof and to effectuate the purposes set forth in Section 2.43.01 hereof, including the followingincluding, without limitation:
(i) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money or selling assets to permit the Partnership to make distributions in such amounts as will permit the Parent (so long as the Parent desires to maintain or restore its qualification as a REIT) to avoid the payment of any income or excise tax under the Code and to make distributions to its stockholders sufficient to permit the Parent to maintain or restore REIT qualification or otherwise to satisfy the REIT Requirements), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtednessindebtedness (including the securing of same by deed to secure debt, including indebtedness that is convertible into Partnership Securitiesmortgage, deed of trust or other lien or encumbrance on the Partnership’s assets) and the incurring of any other obligationsobligations that it deems necessary for the conduct of the activities of the Partnership;
(ii) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership;
(iii) subject to Section 11.02 hereof, the acquisition, dispositionsale, mortgagelease, pledgetransfer, encumbranceexchange or other disposition of any, hypothecation all or exchange of any or substantially all of the assets of the Partnership (including, but not limited to, the exercise or grant of any conversion, option, privilege or subscription right or any other right available in connection with any assets at any time held by the Partnership) or the merger merger, consolidation, reorganization or other combination of the Partnership with or into another Person (the matters described in this clause (iii) being subject, however, to any prior approval that may be required by Section 7.3)entity;
(iv) the mortgage, pledge, encumbrance or hypothecation of any assets of the Partnership, the assignment of any assets of the Partnership in trust for creditors or on the promise of the assignee to pay the debts of the Partnership, the use of the assets of the Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms that it sees fit, including including, without limitation, the financing of the operations and activities of the General Partner, the Parent, the Partnership or any of the Partnership’s Subsidiaries, the lending of funds to other Persons (including, without limitation, the Partnership’s Subsidiaries) and the repayment of obligations of the Partnership, its Subsidiaries and any other Person in which the Partnership has an equity investment, and the making of capital contributions to and equity investments in the Partnership’s Subsidiaries;
(v) the use of the assets of the Partnership (including, without limitation, cash on hand) for any purpose consistent with the terms of this Agreement and on any terms it sees fit, including, without limitation, the financing of the conduct of the operations of the Parent, the General Partner, the Partnership Group; subject to Section 7.6(a)or any of the Partnership’s Subsidiaries, the lending of funds to other Persons (including other Group Members)including, without limitation, the Parent, the General Partner and its Subsidiaries and the Partnership’s Subsidiaries) and the repayment or guarantee of obligations of the Partnership Group and its Subsidiaries and any other Person in which the Partnership has an equity investment and the making of capital contributions to its Subsidiaries;
(vi) the management, operation, leasing, landscaping, repair, alteration, demolition, replacement or improvement of any member Property, including, without limitation, any Contributed Property, or other asset of the Partnership Groupor any Subsidiary, whether pursuant to a Services Agreement or otherwise;
(vvii) the negotiation, execution and performance of any contracts, leases, conveyances or other instruments (including instruments that limit the liability of General Partner considers useful or necessary to the Partnership under contractual arrangements to all or particular assets conduct of the Partnership, with ’s operations or the other party to the contract to have no recourse against implementation of the General Partner or its assets other than its interest in the PartnershipPartner’s powers under this Agreement, even if same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case);
(vi) the distribution of Partnership cash;
(vii) the selection and dismissal of employees (including employees having titles such as “president,” “vice president,” “secretary” and “treasurer”) and agentscontracting with contractors, outside attorneysdevelopers, consultants, government authorities, accountants, consultants legal counsel, other professional advisors and contractors other agents and the determination payment of their expenses and compensation and other terms out of employment or hiringthe Partnership’s assets;
(viii) the distribution of Partnership cash or other Partnership assets in accordance with this Agreement, the holding, management, investment and reinvestment of cash and other assets of the Partnership and the collection and receipt of revenues, rents and income of the Partnership;
(ix) the maintenance of such insurance (including, without limitation, directors and officers insurance) for the benefit of the Partnership Group and the Partners (including, without limitation, the Parent and the General Partner) as it the General Partner deems necessary or appropriate, including, without limitation, (i) casualty, liability and other insurance on the Properties and (ii) liability insurance for the Indemnitees hereunder;
(ixx) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies companies, joint ventures or other relationships that the General Partner deems desirable (including including, without limitation, the acquisition of interests in, and the contributions of property to, any Group Member Subsidiary and any other Person in which it has an equity investment from time to time) subject ); provided, however, that as long as the Parent desires to maintain or restore its qualification as a REIT, the restrictions set forth General Partner may not engage in Section 2.4any such formation, acquisition or contribution that would cause the Parent to fail to qualify as a REIT;
(xxi) the filing of applications, communicating and otherwise dealing with any and all governmental agencies having jurisdiction over, or in any way affecting, the Partnership’s assets or any other aspect of the Partnership business;
(xii) the control of any matters affecting the rights and obligations of the Partnership, including the bringing settlement, compromise, submission to arbitration or any other form of dispute resolution, or abandonment, of any claim, cause of action, liability, debt or damages, due or owing to or from the Partnership, the commencement or defense of suits, legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, and defending the representation of actions at law the Partnership in all suits or in equity and otherwise engaging in the conduct legal proceedings, administrative proceedings, arbitrations or other forms of litigation and dispute resolution, the incurring of legal expense expense, and the settlement of claims and litigation;
(xi) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.8);
(xiii) unless restricted or prohibited by Section 5.7, the purchase, sale or other acquisition or disposition of Partnership Securities, or the issuance of additional options, rights, warrants and appreciation rights relating to Partnership Securities; and
(xiv) the undertaking of any action in connection with the Partnership’s participation direct or indirect investment in any Group Member Subsidiary or any other Person (including, without limitation, the contribution or loan of funds by the Partnership to such Persons);
(xiv) except as otherwise specifically set forth in this Agreement, the determination of the fair market value of any Partnership property distributed in-kind using such reasonable method of valuation as it may adopt; provided, that such methods are otherwise consistent with the requirements of this Agreement;
(xv) the enforcement of any rights against any Partner pursuant to representations, warranties, covenants and indemnities relating to such Partner’s contribution of property or assets to the Partnership;
(xvi) the exercise, directly or indirectly, through any attorney-in-fact acting under a general or limited power-of-attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(xvii) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(xviii) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest, pursuant to contractual or other arrangements with such Person;
(xix) the making, execution and delivery of any and all deeds, leases, notes, deeds to secure Debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate in the judgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement;
(xx) the issuance of additional Partnership Units, as appropriate and in the General Partner’s sole and absolute discretion, in connection with Capital Contributions by Additional Limited Partners and additional Capital Contributions by Partners pursuant to Article IV hereof;
(xxi) the selection and dismissal of Parent Employees (including, without limitation, employees having titles or offices such as president, vice president, secretary and treasurer), and agents, outside attorneys, accountants, consultants and contractors of the Partnership, the Parent or the General Partner, the determination of their compensation and other terms of employment or hiring and the delegation to any such Parent Employee the authority to conduct the business of the Partnership in accordance with the terms of this Agreement;
(xxii) the distribution of cash to acquire Partnership Units held by a Limited Partner in connection with a Limited Partner’s exercise of its Redemption right under Section 8.06 hereof;
(xxiii) the amendment and restatement of Exhibit A hereto to reflect accurately at all times the Capital Contributions and Percentage Interests of the Partners as the same are adjusted from time to time to the extent necessary to reflect redemptions, Capital Contributions, the issuance of Partnership Units, the admission of any Additional Limited Partner or any Substituted Limited Partner or otherwise, which amendment and restatement, notwithstanding anything in this Agreement to the contrary, shall not be deemed an amendment to this Agreement, as long as the matter or event being reflected in Exhibit A hereto otherwise is authorized by this Agreement;
(xxiv) the determination regarding whether a payment to a Partner who exercises its Redemption right under Section 8.06 that is assumed by the General Partner will be paid in the form of the Cash Amount or the Common REIT Shares Amount, except as such determination may be limited by Section 8.06.
(xxv) the collection and receipt of revenues and income of the Partnership;
(xxvi) the registration of any class of securities of the Partnership under the Securities Act or the Exchange Act, and the listing of any securities of the Partnership on any exchange.
(xxvii) an election to dissolve the Partnership pursuant to Section 13.01(b) hereof; and
(xxviii) the taking of any action necessary or appropriate to enable the Parent to qualify as a member REIT (so long as the Parent desires to maintain or partnerrestore its qualification as a REIT).
(b) Notwithstanding any other provision of this Agreement, the Operating Company Agreement, the Delaware Act or any applicable law, rule or regulation, each Each of the Limited Partners and the Assignees and each other Person who may acquire an interest agrees that, except as provided in Partnership Securities hereby (i) approvesSection 7.03 hereof, ratifies and confirms the execution, delivery and performance by the parties thereto of the Operating Company Agreement, any other limited liability company or partnership agreement of any other Group Member, the Underwriting Agreement, the Omnibus Agreement, the Contribution Agreement and the other agreements described in or filed as exhibits to the Registration Statement that are related to the transactions contemplated by the Registration Statement; (ii) agrees that the General Partner (on its own or through any officer of the Partnership) is authorized to execute, deliver and perform the above-mentioned agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership without any further act, approval or vote of the Partners Partners, notwithstanding any other provision of this Agreement, the Act or any applicable law, rule or regulation and, in the absence of any specific corporate action on the part of the General Partner to the contrary, the taking of any action or the Assignees execution of any such document or writing by an officer of the General Partner or the other Persons who may acquire an interest Partner, in Partnership Securities; the name and on behalf of the General Partner, in its capacity as the general partner of the Partnership, shall conclusively evidence (iii1) agrees that the execution, delivery or performance approval thereof by the General Partner, any Group Member in its capacity as the general partner of the Partnership, (2) the General Partner’s determination that such action, document or any Affiliate writing is necessary or desirable to conduct the business and affairs of any the Partnership, exercise the powers of them, of this Agreement or any agreement authorized or permitted the Partnership under this Agreement (including and the exercise Act or effectuate the purposes of the Partnership, or any other determination by the General Partner required by this Agreement in connection with the taking of such action or any Affiliate execution of such document or writing, and (3) the authority of such officer with respect thereto.
(c) At all times from and after the date hereof, the General Partner may cause the Partnership to obtain and maintain (i) casualty, liability and other insurance on the Properties and (ii) liability insurance for the Indemnitees hereunder.
(d) At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain working capital and other reserves in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
(e) In exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner (including the General Partner) of any action taken (or not taken) by it. Except as may be provided in a separate written agreement between the rights accorded pursuant to Article XV)Partnership and the Limited Partners, the General Partner and the Partnership shall not constitute have liability to a breach Limited Partner under any circumstances as a result of a tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner of any duty pursuant to its authority under this Agreement provided, that the General Partner may owe the Partnership or the Limited Partners or any other Persons has acted in good faith and pursuant to its authority under this Agreement (or any other agreements) or of any duty stated or implied by law or equityAgreement.
Appears in 3 contracts
Samples: Second Amended and Restated Agreement of Limited Partnership (Trade Street Residential, Inc.), Second Amended and Restated Agreement of Limited Partnership (Trade Street Residential, Inc.), Limited Partnership Agreement (Trade Street Residential, Inc.)
Management. (a) The General Partner shall conduct, direct and manage all activities of the Partnership. Except as otherwise expressly provided in this Agreement, all management powers over the business and affairs of the Partnership are and shall be exclusively vested in the General Partner, and no Limited Partner or Assignee shall have any right to participate in or exercise control or management power over the business and affairs of the Partnership. The General Partner may not be removed by the Partners with or without cause, except with the consent of the General Partner. In addition to the powers now or hereafter granted to a general partner of a limited partnership under applicable law or which that are granted to the General Partner under any other provision of this Agreement, the General Partner, subject to the other provisions hereof including, without limitation, Section 7.37.03, shall have full power and authority to do all things and on such terms as it, in its sole discretion, may deem deemed necessary or appropriate desirable by it to conduct the business of the Partnership, to exercise all powers set forth in Section 2.5 3.02 hereof and to effectuate the purposes set forth in Section 2.43.01 hereof, including the followingincluding, without limitation:
(i) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money or selling assets to permit the Partnership to make distributions in such amounts as will permit the General Partner (so long as the General Partner desires to maintain or restore its qualification as a REIT) to avoid the payment of any income or excise tax under the Code and to make distributions to its stockholders sufficient to permit the General Partner to maintain or restore REIT qualification or otherwise to satisfy the REIT Requirements), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtednessindebtedness (including the securing of same by deed to secure debt, including indebtedness that is convertible into Partnership Securitiesmortgage, deed of trust or other lien or encumbrance on the Partnership’s assets) and the incurring of any other obligationsobligations that it deems necessary for the conduct of the activities of the Partnership;
(ii) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership, the registration of any class of securities of the Partnership under the Exchange Act and the listing of any debt securities of the Partnership on any exchange;
(iii) subject to Section 11.02 hereof, the acquisition, dispositionsale, mortgagelease, pledgetransfer, encumbranceexchange or other disposition of any, hypothecation all or exchange of any or substantially all of the assets of the Partnership (including, but not limited to, the exercise or grant of any conversion, option, privilege or subscription right or any other right available in connection with any assets at any time held by the Partnership) or the merger merger, consolidation, reorganization or other combination of the Partnership with or into another Person (the matters described in this clause (iii) being subject, however, to any prior approval that may be required by Section 7.3)entity;
(iv) the mortgage, pledge, encumbrance or hypothecation of any assets of the Partnership, the assignment of any assets of the Partnership in trust for creditors or on the promise of the assignee to pay the debts of the Partnership, the use of the assets of the Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms that it sees fit, including including, without limitation, the financing of the operations and activities of the General Partner, the Partnership or any of the Partnership’s Subsidiaries, the lending of funds to other Persons (including, without limitation, the Partnership’s Subsidiaries) and the repayment of obligations of the Partnership, its Subsidiaries and any other Person in which the Partnership has an equity investment, and the making of capital contributions to and equity investments in the Partnership’s Subsidiaries;
(v) the use of the assets of the Partnership (including, without limitation, cash on hand) for any purpose consistent with the terms of this Agreement and on any terms it sees fit, including, without limitation, the financing of the conduct of the operations of the General Partner, the Partnership Group; subject to Section 7.6(a)or any of the Partnership’s Subsidiaries, the lending of funds to other Persons (including other Group Members)including, without limitation, the General Partner and its Subsidiaries and the Partnership’s Subsidiaries) and the repayment or guarantee of obligations of the Partnership Group and its Subsidiaries and any other Person in which the Partnership has an equity investment and the making of capital contributions to its Subsidiaries;
(vi) the management, operation, leasing, landscaping, repair, alteration, demolition, replacement or improvement of any member Property, including, without limitation, any Contributed Property, or other asset of the Partnership Groupor any Subsidiary, whether pursuant to a Services Agreement or otherwise;
(vvii) the negotiation, execution and performance of any contracts, leases, conveyances or other instruments (including instruments that limit the liability of General Partner considers useful or necessary to the Partnership under contractual arrangements to all or particular assets conduct of the Partnership, with ’s operations or the other party to the contract to have no recourse against implementation of the General Partner or its assets other than its interest in the PartnershipPartner’s powers under this Agreement, even if same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case);
(vi) the distribution of Partnership cash;
(vii) the selection and dismissal of employees (including employees having titles such as “president,” “vice president,” “secretary” and “treasurer”) and agentscontracting with contractors, outside attorneysdevelopers, consultants, government authorities, accountants, consultants legal counsel, other professional advisors and contractors other agents and the determination payment of their expenses and compensation and other terms out of employment or hiringthe Partnership’s assets;
(viii) the distribution of Partnership cash or other Partnership assets in accordance with this Agreement, the holding, management, investment and reinvestment of cash and other assets of the Partnership and the collection and receipt of revenues, rents and income of the Partnership;
(ix) the maintenance of such insurance (including, without limitation, directors and officers insurance) for the benefit of the Partnership Group and the Partners (including, without limitation, the General Partner) as it the General Partner deems necessary or appropriate, including, without limitation, (i) casualty, liability and other insurance on the Properties and (ii) liability insurance for the Indemnitees hereunder;
(ixx) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies companies, joint ventures or other relationships that the General Partner deems desirable (including including, without limitation, the acquisition of interests in, and the contributions of property to, any Group Member Subsidiary and any other Person in which it has an equity investment from time to time) subject ); provided, however, that as long as the General Partner desires to maintain or restore its qualification as a REIT, the restrictions set forth General Partner may not engage in Section 2.4any such formation, acquisition or contribution that would cause it to fail to qualify as a REIT;
(xxi) the filing of applications, communicating and otherwise dealing with any and all governmental agencies having jurisdiction over, or in any way affecting, the Partnership’s assets or any other aspect of the Partnership business;
(xii) the control of any matters affecting the rights and obligations of the Partnership, including the bringing settlement, compromise, submission to arbitration or any other form of dispute resolution, or abandonment, of any claim, cause of action, liability, debt or damages, due or owing to or from the Partnership, the commencement or defense of suits, legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, and defending the representation of actions at law the Partnership in all suits or in equity and otherwise engaging in the conduct legal proceedings, administrative proceedings, arbitrations or other forms of litigation and dispute resolution, the incurring of legal expense expense, and the settlement of claims and litigation;
(xi) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.8);
(xiii) unless restricted or prohibited by Section 5.7, the purchase, sale or other acquisition or disposition of Partnership Securities, or the issuance of additional options, rights, warrants and appreciation rights relating to Partnership Securities; and
(xiv) the undertaking of any action in connection with the Partnership’s participation direct or indirect investment in any Group Member Subsidiary or any other Person (including, without limitation, the contribution or loan of funds by the Partnership to such Persons);
(xiv) except as otherwise specifically set forth in this Agreement, the determination of the fair market value of any Partnership property distributed in-kind using such reasonable method of valuation as it may adopt; provided, that such methods are otherwise consistent with the requirements of this Agreement;
(xv) the enforcement of any rights against any Partner pursuant to representations, warranties, covenants and indemnities relating to such Partner’s contribution of property or assets to the Partnership;
(xvi) the exercise, directly or indirectly, through any attorney-in-fact acting under a general or limited power-of-attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(xvii) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(xviii) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest, pursuant to contractual or other arrangements with such Person;
(xix) the making, execution and delivery of any and all deeds, leases, notes, deeds to secure Debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate in the judgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement;
(xx) the issuance of additional Partnership Units, as appropriate and in the General Partner’s sole and absolute discretion, in connection with Capital Contributions by Additional Limited Partners and additional Capital Contributions by Partners pursuant to Article IV hereof;
(xxi) the selection and dismissal of General Partner Employees (including, without limitation, employees having titles or offices such as president, vice president, secretary and treasurer), and agents, outside attorneys, accountants, consultants and contractors of the Partnership or the General Partner, the determination of their compensation and other terms of employment or hiring and the delegation to any such General Partner Employee the authority to conduct the business of the Partnership in accordance with the terms of this Agreement;
(xxii) the distribution of cash to acquire Partnership Units held by a Limited Partner in connection with a Limited Partner’s exercise of its Redemption right under Section 8.06 hereof;
(xxiii) the amendment and restatement of Exhibit A hereto to reflect accurately at all times the Capital Contributions and Percentage Interests of the Partners as the same are adjusted from time to time to the extent necessary to reflect redemptions, Capital Contributions, the issuance of Partnership Units, the admission of any Additional Limited Partner or any Substituted Limited Partner or otherwise, which amendment and restatement, notwithstanding anything in this Agreement to the contrary, shall not be deemed an amendment to this Agreement, as long as the matter or event being reflected in Exhibit A hereto otherwise is authorized by this Agreement;
(xxiv) the determination regarding whether a payment to a Partner who exercises its Redemption Right under Section 8.06 that is assumed by the General Partner will be paid in the form of the Cash Amount or the REIT Shares Amount, except as such determination may be limited by Section 8.06.
(xxv) the collection and receipt of revenues and income of the Partnership;
(xxvi) the registration of any class of securities of the Partnership under the Securities Act or the Exchange Act, and the listing of any debt securities of the Partnership on any exchange.
(xxvii) an election to dissolve the Partnership pursuant to Section 13.01(d) hereof; and
(xxviii) the taking of any action necessary or appropriate to enable the General Partner to qualify as a member REIT (so long as the General Partner desires to maintain or partnerrestore its qualification as a REIT).
(b) Notwithstanding any other provision of this Agreement, the Operating Company Agreement, the Delaware Act or any applicable law, rule or regulation, each Each of the Limited Partners and the Assignees and each other Person who may acquire an interest agrees that, except as provided in Partnership Securities hereby (i) approvesSection 7.03 hereof, ratifies and confirms the execution, delivery and performance by the parties thereto of the Operating Company Agreement, any other limited liability company or partnership agreement of any other Group Member, the Underwriting Agreement, the Omnibus Agreement, the Contribution Agreement and the other agreements described in or filed as exhibits to the Registration Statement that are related to the transactions contemplated by the Registration Statement; (ii) agrees that the General Partner (on its own or through any officer of the Partnership) is authorized to execute, deliver and perform the above-mentioned agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership without any further act, approval or vote of the Partners Partners, notwithstanding any other provision of this Agreement, the Act or any applicable law, rule or regulation and, in the absence of any specific corporate action on the part of the General Partner to the contrary, the taking of any action or the Assignees execution of any such document or writing by an officer of the other Persons who may acquire an interest General Partner, in Partnership Securities; the name and on behalf of the General Partner, in its capacity as the general partner of the Partnership, shall conclusively evidence (iii1) agrees that the execution, delivery or performance approval thereof by the General Partner, any Group Member in its capacity as the general partner of the Partnership, (2) the General Partner’s determination that such action, document or any Affiliate writing is necessary or desirable to conduct the business and affairs of any the Partnership, exercise the powers of them, of this Agreement or any agreement authorized or permitted the Partnership under this Agreement (including and the exercise Act or effectuate the purposes of the Partnership, or any other determination by the General Partner required by this Agreement in connection with the taking of such action or any Affiliate execution of such document or writing, and (3) the authority of such officer with respect thereto.
(c) At all times from and after the date hereof, the General Partner may cause the Partnership to obtain and maintain (i) casualty, liability and other insurance on the Properties and (ii) liability insurance for the Indemnitees hereunder.
(d) At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain working capital and other reserves in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
(e) In exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner (including the General Partner) of any action taken (or not taken) by it. Except as may be provided in a separate written agreement between the rights accorded pursuant to Article XV)Partnership and the Limited Partners, the General Partner and the Partnership shall not constitute have liability to a breach Limited Partner under any circumstances as a result of a tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner of any duty pursuant to its authority under this Agreement provided, that the General Partner may owe the Partnership or the Limited Partners or any other Persons has acted in good faith and pursuant to its authority under this Agreement (or any other agreements) or of any duty stated or implied by law or equityAgreement.
Appears in 3 contracts
Samples: Agreement of Limited Partnership, Limited Partnership Agreement (Empire State Realty Trust, Inc.), Limited Partnership Agreement (Empire State Realty Trust, Inc.)
Management. (a) The General Partner shall conduct, direct and manage exercise full control over all activities of the Partnership. Except as otherwise expressly provided in this Agreement, all management powers over the business and affairs of the Partnership shall be exclusively vested in the General Partner, and no Limited Partner or Assignee shall have any right of control or management power over the business and affairs of the Partnership. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or which are granted to the General Partner under any other provision of this Agreement, the General Partner, subject to Section 7.36.3, shall have full power and authority to do all things and on such terms as it, in its sole discretion, may deem necessary or appropriate (i) to conduct the business of the Partnership, to exercise all powers set forth in Section 2.5 3.2 and to effectuate the purposes set forth in Section 2.43.1, including the following:
including, without limitation, (iA) the making of any expenditures, the lending or borrowing of money, the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtedness, including indebtedness that is convertible into Partnership Securities, and the incurring of any other obligations;
obligations and the securing of same by mortgage, deed of trust or other lien or encumbrance; (iiB) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership;
; (iiiC) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the Partnership or the merger or other combination of the Partnership with or into another Person (the matters described in this clause (iiiC) being subject, subject however, to any prior approval that may be required by Section 7.36.3);
; (ivD) the use of the assets of the Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement including, including without limitation, the financing of the conduct of the operations of the Partnership Group; subject to Section 7.6(a)or the Operating Companies, the lending of funds to other Persons (including other Group Members)including, without limitation, the Operating Companies) and the repayment or guarantee of obligations of the Partnership Group and the Operating Companies and the making of capital contributions to any member of the Partnership Group;
Operating Companies; (vE) the negotiation, execution and performance of any contracts, conveyances or other instruments (including including, without limitation, instruments that limit the liability of the Partnership under contractual arrangements to all or particular assets of the Partnership, with the other party to the contract to have no recourse against the General Partner or its assets other than its interest in the Partnership, even if same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case);
; (viF) the distribution of Partnership cash;
; (viiG) the selection and dismissal of employees and agents (including including, without limitation, employees having titles such as “"president,” “" "vice president,” “" "secretary” " and “"treasurer”") and agents, outside attorneys, accountants, consultants and contractors and the determination of their compensation and other terms of employment or hiring;
; (viiiH) the maintenance of such insurance for the benefit of the Partnership Group Partners and the Partners as it deems necessary or appropriate;
Partnership and the Operating Companies (ixincluding, without limitation, the assets and operations of the Partnership and the Operating Companies); (I) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies corporations or other relationships (including including, without limitation, the acquisition of interests interest in, and the contributions of property to, any Group Member the Operating Companies from time to time) subject to the restrictions set forth in Section 2.4;
); (xJ) the control of any matters affecting the rights and obligations of the Partnership, including including, without limitation, the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigation and the incurring of legal expense and the settlement of claims and litigation;
; (xiK) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
; (xiiL) the entering into of listing agreements with the New York Stock Exchange and any National Securities Exchange other securities exchange and the delisting of some or all of the Limited Partner Interests Units from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.81.6);
; and (xiiiM) unless restricted or prohibited by Section 5.7, the purchase, sale or other acquisition or disposition of Units and, subject to Section 4.4(c), other Partnership Securities, or the issuance of additional options, rights, warrants securities; and appreciation rights relating (ii) to Partnership Securities; and
(xiv) the undertaking of undertake any action in connection with the Partnership’s 's participation in any Group Member the Operating Companies as a the managing member (including, without limitation, contributions or partnerloans of funds by the Partnership to the Operating Companies).
(b) Notwithstanding any other provision of this Agreement, the Charter Documents of the Operating Company AgreementCompanies and the Joint Ventures, the Delaware Act or any applicable law, rule or regulation, each of the Partners and the Assignees and each other Person who may acquire an interest in Partnership Securities Units hereby (i) approves, ratifies and confirms the execution, delivery and performance by the parties thereto of each of the Operating Company Agreement, any other limited liability company or partnership agreement of any other Group Member, the Underwriting Agreement, the Omnibus Agreement, the Contribution Agreement and the other agreements described in or filed as exhibits an exhibit to the Registration Statement that are related to Statement, specifically including, but not limited to, the transactions contemplated by Revolving Credit Facility and the notes, security agreements and other documents evidencing or securing the same or relating thereto, the Conveyance Agreement and the deeds, assignments, bills of sale and other documents relating thereto, the applicable Charter Documents, the Underwriting Agreement and the Management Agreement (each such capitalized term having the meaning assigned thereto in the Registration Statement); (ii) agrees that the General Partner (on its own or through any officer of the Partnership) is authorized to execute, deliver and perform the agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership without any further act, approval or vote of the Partners or the Assignees or the other Persons who may acquire an interest in Partnership SecuritiesUnits; and (iii) agrees that none of the execution, delivery or performance by the General Partner, any Group Member the Partnership, the Operating Companies or any Affiliate thereof of any of them, of this Agreement or any agreement authorized or permitted under this Agreement (including including, without limitation, the exercise by the General Partner or any Affiliate of the General Partner of the rights accorded pursuant to Article XV), XVII) shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or the Assignees or any other Persons under this Agreement (or any other agreements) or of any duty stated or implied by law or equity.
Appears in 3 contracts
Samples: Limited Partnership Agreement (El Paso Corp/De), Limited Partnership Agreement (El Paso Energy Partners Lp), Limited Partnership Agreement (Gulfterra Energy Partners L P)
Management. (a) The General Partner shall conduct, direct and manage all activities of the Partnership. A. Except as otherwise expressly provided in this Agreement, all management powers over the business and affairs of the Partnership shall be are exclusively vested in the General Partner, and no Limited Partner or Assignee shall have any right to participate in or exercise control or management power over the business and affairs of the Partnership. The General Partner may not be removed by the Limited Partners with or without cause, except with the consent of the General Partner. In addition to the powers now or hereafter granted a general partner of a limited partnership under the Act and other applicable law or which are granted to the General Partner under any other provision of this Agreement, the General Partner, subject to the other provisions hereof including Section 7.3, shall have full power and authority to do all things and on such terms as it, in its sole discretion, may deem deemed necessary or appropriate desirable by it to conduct the business of the Partnership, to exercise all powers set forth in Section 2.5 3.2 and to effectuate the purposes set forth in Section 2.43.1, including the followingincluding, without limitation:
(i) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money to permit the Partnership to make distributions to its Partners in such amounts as will permit the General Partner (for so long as the General Partner has determined to qualify as a REIT) to avoid the payment of any Federal income tax (including, for this purpose, any excise tax pursuant to Section 4981 of the Code) and to make distributions to its stockholders sufficient to permit the General Partner to maintain REIT status), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtednessindebtedness (including the securing of same by mortgage, including indebtedness that is convertible into Partnership Securities, deed of trust or other lien or encumbrance on all or any of the Partnership's assets) and the incurring of any other obligationsobligations it deems necessary for the conduct of the activities of the Partnership;
(ii) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership;
(iii) subject to the provisions of Section 7.3.D, the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the Partnership or the merger or other combination of the Partnership with or into another Person (the matters described in this clause (iii) being subject, however, to any prior approval that may be required by Section 7.3)entity;
(iv) the mortgage, pledge, encumbrance or hypothecation of all or any assets of the Partnership, and the use of the assets of the Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms it sees fit, including including, without limitation, the financing of the conduct of or the operations of the Partnership Group; subject to Section 7.6(a)General Partner or the Partnership, the lending of funds to other Persons (including other Group Members)including, without limitation, the General Partner (if necessary to permit the financing or capitalization of a subsidiary of the General Partner or the Partnership) and any Subsidiaries of the Partnership) and the repayment or guarantee of obligations of the Partnership Group Partnership, any of its Subsidiaries and the making of capital contributions to any member of the Partnership Groupother Person in which it has an equity investment;
(v) the negotiation, execution execution, and performance of any contracts, leases, conveyances or other instruments (including instruments that limit the liability of General Partner considers useful or necessary to the Partnership under contractual arrangements to all or particular assets conduct of the Partnership, with 's operations or the other party to the contract to have no recourse against implementation of the General Partner or its assets other than its interest in the Partnership, even if same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case)Partner's powers under this Agreement;
(vi) the distribution of Partnership cashcash or other Partnership assets in accordance with this Agreement;
(vii) the selection and dismissal of employees of the Partnership (including including, without limitation, employees having titles such as “"president,” “" "vice president,” “" "secretary” " and “"treasurer”) "), and agents, outside attorneys, accountants, consultants and contractors and of the Partnership, the determination of their compensation and other terms of employment or hiring, including waivers of conflicts of interest and the payment of their expenses and compensation out of the Partnership's assets;
(viii) the maintenance of such insurance for the benefit of the Partnership Group and the Partners as it deems necessary or appropriate;
(ix) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies ventures or other relationships that it deems desirable (including including, without limitation, the acquisition of interests in, and the contributions of property to, to any Group Member Subsidiary and any other Person in which it has an equity investment from time to time) subject ); provided that, as long as the General Partner has determined to continue to qualify as a REIT, the restrictions set forth Partnership may not engage in Section 2.4any such formation, acquisition or contribution that would cause the General Partner to fail to qualify as a REIT;
(x) the control of any matters affecting the rights and obligations of the Partnership, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigation and the incurring of legal expense and the settlement of claims and litigation;
(xi) , and the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.8);
(xiii) unless restricted or prohibited by Section 5.7, the purchase, sale or other acquisition or disposition of Partnership Securities, or the issuance of additional options, rights, warrants and appreciation rights relating to Partnership Securities; and
(xivxi) the undertaking of any action in connection with the Partnership’s participation 's direct or indirect investment in any Group Member as a member Person (including, without limitation, contributing or partner.loaning Partnership funds to, incurring indebtedness on behalf of, or guarantying the obligations of any such Persons);
(bxii) Notwithstanding any subject to the other provision of provisions in this Agreement, the Operating Company determination of the fair market value of any Partnership property distributed in kind using such reasonable method of valuation as it may adopt; provided that, such methods are otherwise consistent with requirements of this Agreement;
(xiii) the management, operation, leasing, landscaping, repair, alteration, demolition or improvement of any real property or improvements owned by the Delaware Act Partnership or any applicable law, rule or regulation, each Subsidiary of the Partners Partnership or any Person in which the Partnership has made a direct or indirect equity investment;
(xiv) holding, managing, investing and reinvesting cash and other assets of the Assignees Partnership;
(xv) the collection and each receipt of revenues and income of the Partnership;
(xvi) the exercise, directly or indirectly through any attorney-in-fact acting under a general or limited power of attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(xvii) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person who may acquire an interest in which the Partnership Securities hereby has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(ixviii) approves, ratifies and confirms the execution, delivery and performance by the parties thereto exercise of any of the Operating Company Agreement, any other limited liability company or partnership agreement powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest, pursuant to contractual or other Group Memberarrangements with such Person; and
(xix) the making, the Underwriting Agreementexecution and delivery of any and all deeds, the Omnibus Agreementleases, the Contribution Agreement and the notes, deeds to secure debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or other agreements described in writing necessary or filed as exhibits to appropriate in the Registration Statement that are related to judgment of the transactions contemplated by General Partner for the Registration Statement; (ii) accomplishment of any of the powers of the General Partner enumerated in this Agreement.
B. Each of the Limited Partners agrees that the General Partner (on its own or through any officer of the Partnership) is authorized to execute, deliver and perform the above-mentioned agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership without any further act, approval or vote of the Partners partners, notwithstanding any other provisions of this Agreement (except as provided in Section 7.3), the Act or the Assignees any applicable law, rule or the other Persons who may acquire an interest in Partnership Securities; and (iii) agrees that the regulation. The execution, delivery or performance by the General Partner, any Group Member or any Affiliate of any of them, of this Agreement or any agreement authorized or permitted under this Agreement (including the exercise by the General Partner or any Affiliate of the General Partner of the rights accorded pursuant to Article XV), shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement (or any other agreements) or of any duty stated or implied by law or equity.the
Appears in 2 contracts
Samples: Limited Partnership Agreement (Amb Property Lp), Limited Partnership Agreement (Amb Property Corp)
Management. (a) The General Partner shall conduct, direct and manage all activities of the Partnership. A. Except as otherwise expressly provided in this Agreement, all management powers over the business and affairs of the Partnership are and shall be exclusively vested in the General Partner, and no Limited Partner or Assignee shall have any right to participate in or exercise control or management power over the business and affairs of the Partnership. The General Partner may not be removed by the Limited Partners with or without cause. In addition to the powers now or hereafter granted to a general partner of a limited partnership under applicable law or which are granted to the General Partner under any other provision of this Agreement, the General Partner, subject to Section 7.37.3 hereof, shall have full power and authority to do all things and on such terms as itdeemed necessary, in its sole discretion, may deem necessary desirable or appropriate convenient by it to conduct the business of the Partnership, to exercise all powers set forth in Section 2.5 3.2 hereof and to effectuate the purposes set forth in Section 2.43.1 hereof, including the followingincluding, without limitation:
(i1) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money to permit the Partnership to make distributions to its Partners in such amounts as will permit the Company (so long as the Company desires to maintain its qualification as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Section 4981 of the Code) and to make distributions to its shareholders in amounts sufficient to permit the Company to maintain its REIT status), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences evidence of indebtednessindebtedness (including the securing of the same by deed, including indebtedness that is convertible into Partnership Securitiesmortgage, deed of trust or other lien or encumbrance on the Partnership’s assets) and the incurring of any other obligationsobligations it deems necessary for the conduct of the activities of the Partnership;
(ii2) the making of tax, regulatory and other filingsfilings or elections, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership;
(iii3) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the Partnership (including the exercise or grant of any conversion, option, privilege, or subscription right or other right available in connection with any assets at any time held by the Partnership) or the merger or other combination of the Partnership with or into another Person entity (all of the matters described in this clause (iii) being subject, however, foregoing subject to any prior approval that may be only to the extent required by Section 7.37.3 hereof);
(iv4) the mortgage, pledge, encumbrance or hypothecation of any assets of the Partnership, the use of the assets of the Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms that it sees fit, including including, without limitation, the financing of the conduct of the operations of the Partnership Group; subject to Section 7.6(a)Partnership, the Company or any of the Partnership’s or the Company’s Subsidiaries, the lending of funds to other Persons (including other Group Members)including, without limitation, the Subsidiaries of the Partnership and/or the Company) and the repayment or guarantee of obligations of the Partnership Group and its Subsidiaries and any other Person in which it has an equity investment, and the making of capital contributions to any member of the Partnership Groupits Subsidiaries;
(v5) the management, operation, leasing, landscaping, repair, alteration, demolition, disposition or improvement of any real property or improvements owned by the Partnership or any Subsidiary of the Partnership;
(6) the negotiation, execution execution, delivery and performance of any contracts, conveyances or other instruments (including instruments that limit the liability of General Partner considers useful or necessary or convenient to the Partnership under contractual arrangements to all or particular assets conduct of the Partnership, with ’s operations or the other party to the contract to have no recourse against implementation of the General Partner or its assets Partner’s powers under this Agreement, including, without limitation, contracting with consultants, accountants, legal counsel, other than its interest in professional advisors and other agents and the payment of their expenses and compensation out of the Partnership, even if same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case)’s assets;
(vi7) the distribution of Partnership cashcash or other Partnership assets in accordance with this Agreement;
(vii8) holding, managing, investing and reinvesting cash and other assets of the Partnership;
(9) the collection and receipt of revenues and income of the Partnership;
(10) the establishment of one or more divisions of the Partnership, the selection and dismissal of employees of the Partnership (including including, without limitation, employees having who may be designated as officers with titles such as “president,” “vice president,” “secretary” and “treasurer”) ” of the Partnership), and agents, outside attorneys, accountants, consultants and contractors of the Partnership, and the determination of their compensation and other terms of employment or hiring;
(viii11) the maintenance of such insurance for the benefit of the Partnership Group and the Partners as it deems necessary or appropriate;
(ix12) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventureslimited liability companies, real estate investment trusts, corporations, limited liability companies entities that are treated as REITs, “taxable REIT subsidiaries” or as foreign corporations for federal income tax purposes, joint ventures or other relationships that it deems desirable (including including, without limitation, the acquisition of interests in, and the contributions of property or the making of loans to, its or the Company’s Subsidiaries and any Group Member other Person in which it has an equity investment from time to time) subject time or the incurrence of indebtedness on behalf of such Persons or the guarantee of obligations of such Persons and the making of any tax, regulatory or other filing or election with respect to any of the restrictions set forth foregoing Persons); provided, that as long as the Company has determined to continue to qualify as a REIT, the Partnership may not engage in Section 2.4any such formation, acquisition or contribution that would cause the Company to fail to qualify as a REIT;
(x13) the control of any matters affecting the rights and obligations of the Partnership, including the bringing and defending settlement, compromise, submission to arbitration or any other form of actions at law dispute resolution, or in equity and otherwise engaging in abandonment of, any claim, cause of action, liability, debt or damages, due or owing to or from the conduct Partnership, the commencement or defense of litigation suits, legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, and the incurring representation of the Partnership in all suits or legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, the incurrence of legal expense expense, and the settlement of claims and litigation;
(xi) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.8);
(xiii) unless restricted or prohibited by Section 5.7, the purchase, sale or other acquisition or disposition of Partnership Securities, or the issuance of additional options, rights, warrants and appreciation rights relating to Partnership Securities; and
(xiv14) the undertaking of any action in connection with the Partnership’s participation direct or indirect investment in any Group Member as a member Subsidiary or partner.any other Person (including, without limitation, the contribution or loan of funds by the Partnership to such Persons);
(b15) Notwithstanding the determination of the fair market value of any Partnership property distributed in kind using such reasonable method of valuation as the General Partner may adopt;
(16) the enforcement of any rights against any Partner pursuant to representations, warranties, covenants and indemnities relating to such Partner’s contribution of property or assets to the Partnership;
(17) the exercise, directly or indirectly, through any attorney-in-fact acting under a general or limited power of attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(18) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other provision Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(19) the exercise of this Agreement, the Operating Company Agreement, the Delaware Act or any applicable law, rule or regulation, each of the Partners and powers of the Assignees and each other General Partner enumerated in this Agreement on behalf of any Person who may acquire in which the Partnership does not have an interest in Partnership Securities hereby pursuant to contractual or other arrangements with such Person;
(i20) approvesthe making, ratifies and confirms the execution, delivery and performance by of any and all deeds, leases, notes, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary, appropriate or convenient, in the parties thereto judgment of the Operating Company AgreementGeneral Partner, any other limited liability company or partnership agreement for the accomplishment of any of the powers of the General Partner enumerated in this Agreement;
(21) the issuance of additional Partnership Units and other Group Memberpartnership interests, as appropriate, in connection with Capital Contributions by Additional Limited Partners and additional Capital Contributions by Partners pursuant to Article 4 hereof; and
(22) the Underwriting Agreement, taking of any action necessary or appropriate to enable the Omnibus Agreement, Company to qualify as a REIT.
B. Each of the Contribution Agreement and the other agreements described in or filed as exhibits to the Registration Statement that are related to the transactions contemplated by the Registration Statement; (ii) Limited Partners agrees that the General Partner (on its own or through any officer of the Partnership) is authorized to execute, deliver and perform the above-mentioned agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership without any further act, approval or vote of the Partners Partners, notwithstanding any other provision of this Agreement (except as provided in Section 7.3), the Act or any applicable law, rule or regulation, to the Assignees fullest extent permitted under the Act or the other Persons who may acquire an interest in Partnership Securities; and (iii) agrees that the applicable law, rule or regulation. The execution, delivery or performance by the General Partner, any Group Member Partner or any Affiliate the Partnership of any of them, of this Agreement or any agreement authorized or permitted under this Agreement (including the exercise by the General Partner or any Affiliate of the General Partner of the rights accorded pursuant to Article XV), shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement (or any other agreements) or of any duty stated or implied by law or equity.
C. At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain at any and all times working capital accounts and other cash or similar balances in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
D. In exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner of any action taken by it. The General Partner and the Partnership shall not be liable to a Limited Partner under any circumstances as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner taken pursuant to its authority under this Agreement and in accordance with the terms of Section 7.3.
Appears in 2 contracts
Samples: Limited Partnership Agreement (PennyMac Mortgage Investment Trust), Limited Partnership Agreement (PennyMac Mortgage Investment Trust)
Management. (a) The General Managing Partner shall conduct, direct and manage all activities of the Partnership. Except as otherwise expressly provided in this Agreement, all management powers over the business and affairs of the Partnership shall be exclusively vested in the General Managing Partner, and no Limited Partner or Assignee shall have any management power over the business and affairs of the Partnership. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or which that are granted to the General Managing Partner under any other provision of this Agreement, the General Managing Partner, subject to Section 7.3, shall have full power and authority to do all things and on such terms as itit determines, in its sole discretion, may deem to be necessary or appropriate to conduct the business of the Partnership, to exercise all powers set forth in Section 2.5 and to effectuate the purposes set forth in Section 2.4, including the following:
(i) the making of any expenditures, the lending or borrowing of money, the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtedness, including indebtedness that is convertible or exchangeable into Partnership Securities or options, rights, warrants or appreciation rights relating to Partnership Securities, and the incurring of any other obligations;
(ii) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership;
(iii) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the Partnership or the merger or other combination of the Partnership with or into another Person (the matters described in this clause (iii) being subject, however, to any prior approval that may be required by Section 7.37.3 and Article XIV);
(iv) the use of the assets of the Partnership (including cash on hand) for any purpose consistent with the terms of this Agreement, including the financing of the conduct of the operations of the Partnership Group; subject to Section 7.6(a), the lending of funds to other Persons (including other Group Members), Persons; the repayment or guarantee of obligations of the Partnership any Group Member and the making of capital contributions Capital Contributions to any member of the Partnership GroupGroup Member;
(v) the negotiation, execution and performance of any contracts, conveyances or other instruments (including instruments that limit the liability of the Partnership under contractual arrangements to all or particular assets of the Partnership, with the other party to the contract to have no recourse against the General Managing Partner or its assets other than its their interest in the Partnership, even if same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case);
(vi) the distribution of Partnership cash;
(vii) the selection and dismissal of employees (including employees having titles such as “president,” “vice president,” “secretary” and “treasurer”titles as the Managing Partner may determine in its sole discretion) and agents, outside attorneys, accountants, consultants and contractors and the determination of their compensation and other terms of employment or hiring;
(viii) the maintenance of such insurance for the benefit of the Partnership Group and Group, the Partners as it deems necessary or appropriateand Indemnitees;
(ix) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies companies, corporations or other relationships (including the acquisition of interests in, and the contributions of property to, any Group Member the Partnership’s Subsidiaries from time to time) subject to the restrictions set forth in Section 2.4;
(x) the control of any matters affecting the rights and obligations of the Partnership, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigation litigation, arbitration or mediation and the incurring of legal expense and the settlement of claims and litigation;
(xi) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.84.7);
(xiii) unless restricted or prohibited by Section 5.7, the purchase, sale or other acquisition or disposition of Partnership Securities, Securities or the issuance of additional options, rights, warrants and or appreciation rights relating to Partnership Securities; and;
(xiv) the undertaking of any action in connection with the Partnership’s participation in the management of the Partnership Group through its directors, officers or employees or the Partnership’s direct or indirect ownership of the Group Members, including all things described in or contemplated by the Registration Statement and the agreements described in or filed as exhibits to the Registration Statement; and
(xv) cause to be registered for resale under the Securities Act and applicable state or non-U.S. securities laws, any Group Member as a member securities of, or partnerany securities convertible or exchangeable into securities of, the Partnership held by any Person, including the Managing Partner or any Affiliate of the Managing Partner.
(b) In exercising its authority under this Agreement, the Managing Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner (including the Managing Partner) of any action taken (or not taken) by it. The Managing Partner and the Partnership shall not have any liability to a Limited Partner for monetary damages, equitable relief or otherwise for losses sustained, liabilities incurred or benefits not derived by such Limited Partner in connection with such decisions so long as the Managing Partner has acted pursuant to its authority under this Agreement.
(c) Notwithstanding any other provision of this Agreement, the Operating Company Agreement, the Delaware Limited Partnership Act or any applicable law, rule or regulation, each of the Partners and the Assignees and each other Person who may acquire an interest in Partnership Securities hereby (i) approves, ratifies and confirms the execution, delivery and performance by the parties thereto of the Operating Company Agreement, any other limited liability company or partnership agreement of any other Group Member, the Underwriting Purchase and Sale Agreement, the Omnibus Investment Agreement, the Contribution Agreement Amended and Restated Exchange Agreement, the Amended and Restated Tax Receivable Agreement, the Group Partnership Agreements and the other agreements described in or filed as exhibits to the Registration Statement that are related to the transactions contemplated by the Registration Statement; (ii) agrees that the General Managing Partner (on its own or through its delegation of such authority to any officer of the Partnership) is authorized to execute, deliver and perform the agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership Partnership, in each case in such form and with such terms as it in its sole discretion shall determine, without any further act, approval or vote of the Partners or the Assignees or the other Persons who may acquire an interest in Partnership Securities; and (iii) agrees that the execution, delivery or performance by the General Managing Partner, any Group Member or any Affiliate of any of them, of this Agreement or any agreement authorized or permitted under this Agreement (including the exercise by the General Managing Partner or any Affiliate of the General Managing Partner of the rights accorded pursuant to Article XV), shall not constitute a breach by the General Managing Partner of any duty that the General Managing Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement (or any other agreements) or of any duty stated existing at law, in equity or implied by law or equityotherwise.
Appears in 2 contracts
Samples: Limited Partnership Agreement (KKR & Co. L.P.), Limited Partnership Agreement (KKR & Co. L.P.)
Management. (a) The General Partner shall conduct, direct and manage all activities of the Partnership. A. Except as otherwise expressly provided in this Agreement, all management powers over the business and affairs of the Partnership are and shall be exclusively vested in the General Partner, and no Limited Partner or Assignee shall have any right to participate in or exercise control or management power over the business and affairs of the Partnership. The General Partner may not be removed by the Limited Partners with or without cause. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or which are granted to the General Partner under any other provision of this Agreement, the General Partner, subject to Section 7.37.3 hereof, shall have full power and authority to do all things and on such terms as it, in its sole discretion, may deem deemed necessary or appropriate desirable by it to conduct the business of the Partnership, to exercise all powers set forth in Section 2.5 3.2 hereof and to effectuate the purposes set forth in Section 2.43.1 hereof, including the followingincluding, without limitation:
(i1) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money to permit the Partnership to make distributions to its Partners in such amounts as will permit the General Partner (so long as the General Partner qualifies as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Section 4981 of the Code) and to make distributions to the General Partner such that the General Partner can distribute to its shareholders amounts sufficient to permit the General Partner to maintain REIT status), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtednessindebtedness (including the securing of same by deed to secure debt, including indebtedness that is convertible into Partnership Securitiesmortgage, deed of trust or other lien or encumbrance on the Partnership's assets) and the incurring of any other obligationsobligations it deems necessary for the conduct of the activities of the Partnership;
(ii2) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership;
(iii3) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the Partnership (including the exercise or grant of any conversion, option, privilege, or subscription right or other right available in connection with any assets at any time held by the Partnership) or the merger or other combination of the Partnership with or into another Person entity (all of the matters described in this clause (iii) being subject, however, foregoing subject to any prior approval that may be only to the extent required by Section 7.37.3 hereof);
(iv4) the use of the assets of the Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms it sees fit, including including, without limitation, the financing of the conduct of the operations of the General Partner, the Partnership Group; subject to Section 7.6(a)or any of the Partnership's Subsidiaries, the lending of funds to other Persons (including other Group Members)including, without limitation, the Subsidiaries of the Partnership and/or the General Partner) and the repayment or guarantee of obligations of the Partnership Group and its Subsidiaries and any other Person in which it has an equity investment, and the making of capital contributions to any member of the Partnership Groupits Subsidiaries;
(v5) the management, operation, leasing, landscaping, repair, alteration, demolition or improvement of any real property or improvements owned by the Partnership or any Subsidiary of the Partnership;
(6) the negotiation, execution execution, and performance of any contracts, conveyances or other instruments (including instruments that limit the liability of General Partner considers useful or necessary to the Partnership under contractual arrangements to all or particular assets conduct of the Partnership, with 's operations or the other party to the contract to have no recourse against implementation of the General Partner or its assets Partner's powers under this Agreement, including contracting with contractors, developers, consultants, accountants, legal counsel, other than its interest in professional advisors and other agents and the payment of their expenses and compensation out of the Partnership, even if same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case)'s assets;
(vi7) the distribution of Partnership cashcash or other Partnership assets in accordance with this Agreement;
(vii8) holding, managing, investing and reinvesting cash and other assets of the Partnership;
(9) the collection and receipt of revenues and income of the Partnership;
(10) the establishment of one or more divisions of the Partnership, the selection and dismissal of employees of the Partnership, any division of the Partnership, or the General Partner (including including, without limitation, employees having titles such as “"president,” “" "vice president,” “" "secretary” " and “"treasurer”) " of the Partnership, any division of the Partnership, or the General Partner), and agents, outside attorneys, accountants, consultants and contractors of the General Partner or the Partnership or any division of the Partnership, and the determination of their compensation and other terms of employment or hiring;
(viii11) the maintenance of such insurance for the benefit of the Partnership Group and the Partners as it deems necessary or appropriate;
(ix12) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies ventures or other relationships that it deems desirable (including including, without limitation, the acquisition of interests in, and the contributions of property to, its Subsidiaries and any Group Member other Person in which it has an equity investment from time to time) subject to the restrictions set forth in Section 2.4);
(x13) the control of any matters affecting the rights and obligations of the Partnership, including the bringing settlement, compromise, submission to arbitration or any other form of dispute resolution, or abandonment of, any claim, cause of action, liability, debt or damages, due or owing to or from the Partnership, the commencement or defense of suits, legal proceedings, administrative proceedings, arbitration or other forms of dispute, resolution, and defending the representation of actions at law the Partnership in all suits or in equity and otherwise engaging in the conduct legal proceedings, administrative proceedings, arbitrations or other forms of litigation and dispute resolution, the incurring of legal expense expense, and the settlement of claims and litigation;
(xi) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.8);
(xiii) unless restricted or prohibited by Section 5.7, the purchase, sale or other acquisition or disposition of Partnership Securities, or the issuance of additional options, rights, warrants and appreciation rights relating to Partnership Securities; and
(xiv14) the undertaking of any action in connection with the Partnership’s participation 's direct or indirect investment in its Subsidiaries or any Group Member other Person (including, without limitation, the contribution or loan of funds by the Partnership to such Persons);
(15) the determination of the fair market value of any Partnership property distributed in kind using such reasonable method of valuation as it may adopt;
(16) the exercise, directly or indirectly, through any attorney-in-fact acting under a member general or partnerlimited power of attorney, any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(17) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(18) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest pursuant to contractual or other arrangements with such Person; and
(19) the making, execution and delivery of any and all deeds, leases, notes, deeds to secure debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate in the judgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement.
(b) Notwithstanding any other provision of this Agreement, the Operating Company Agreement, the Delaware Act or any applicable law, rule or regulation, each B. Each of the Limited Partners and the Assignees and each other Person who may acquire an interest in Partnership Securities hereby (i) approves, ratifies and confirms the execution, delivery and performance by the parties thereto of the Operating Company Agreement, any other limited liability company or partnership agreement of any other Group Member, the Underwriting Agreement, the Omnibus Agreement, the Contribution Agreement and the other agreements described in or filed as exhibits to the Registration Statement that are related to the transactions contemplated by the Registration Statement; (ii) agrees that the General Partner (on its own or through any officer of the Partnership) is authorized to execute, deliver and perform the above-mentioned agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership without any further act, approval or vote of the Partners Partners, notwithstanding any other provision of this Agreement (except as provided in Section 7.3), the Act or any applicable law, rule or regulation, to the Assignees fullest extent permitted under the Act or the other Persons who may acquire an interest in Partnership Securities; and (iii) agrees that the applicable law. The execution, delivery or performance by the General Partner, any Group Member Partner or any Affiliate the Partnership of any of them, of this Agreement or any agreement authorized or permitted under this Agreement (including the exercise by the General Partner or any Affiliate of the General Partner of the rights accorded pursuant to Article XV), shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement (or any other agreements) or of any duty stated or implied by law or equity.
C. At all times from and after the date hereof, the General Partner may cause the Partnership to obtain and maintain (i) casualty, liability and other insurance on the properties of the Partnership and (ii) liability insurance for the Indemnitees hereunder.
D. At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain at any and all times working capital accounts and other cash or similar balances in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
E. In exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner of any action taken by it; provided that, if the General Partner decides to refinance (directly or indirectly) any outstanding indebtedness of the Partnership, the General Partner shall use reasonable efforts to structure such refinancing in a manner that minimizes any adverse tax consequences therefrom to the Limited Partners, and provided further that, in deciding whether or not to dispose of any property that represents more than one percent of the Partnership's total assets, the General Partner shall consider in good faith the income tax consequences of such disposition for both the General Partners and the Limited Partners. The General Partner and the Partnership shall not have liability to a Limited Partner under any circumstances as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner pursuant to its authority under this Agreement.
Appears in 2 contracts
Samples: Agreement of Limited Partnership (Colonial Properties Trust), Agreement of Limited Partnership (Colonial Properties Trust)
Management. (a) The Management by the General Partner shall conduct, direct and manage all activities of the PartnershipPartner. Except as otherwise expressly provided in this Agreement, all management powers over full, complete and exclusive discretion to manage and control the business and affairs of the Partnership are and shall be exclusively vested in the General Partner, and no Limited Partner or Assignee shall have any right to participate in or exercise control or management power over the business and affairs of the Partnership. The General Partner may not be removed by the Limited Partners with or without cause.
(b) Power and Authority of the General Partner. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or which are granted to the General Partner under any other provision of this Agreement, the General Partner, subject to Section 7.3, Partner shall have full power and authority to do all things and on such terms as it, in its sole discretion, may deem deemed necessary or appropriate desirable by it to conduct the business of the Partnership, to exercise all powers set forth in Section 2.5 3.2 hereof and to effectuate the purposes set forth in Section 2.43.1 hereof, including the followingincluding, without limitation:
(i) (A) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money to permit the Partnership to make distributions to its Partners in such amounts as will permit the General Partner (so long as the General Partner qualifies as a REIT) to (1) avoid the payment of any Federal income or excise tax (including any excise tax pursuant to Section 4981 of the Code) and (2) make distributions to its stockholders in amounts sufficient to permit the General Partner to maintain REIT status), (B) the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, (C) the issuance of evidences any evidence of indebtednessindebtedness (including the securing of the same by deed, including indebtedness that is convertible into Partnership Securitiesmortgage, deed of trust or other lien or encumbrance on the Partnership’s assets), and (D) the incurring of any other obligationsobligations it deems necessary for the conduct of the activities of the Partnership, including the payment of all expenses associated with the General Partner;
(iii) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the PartnershipPartnership or the General Partner;
(iiiii) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets assets, including Real Estate Assets, of the Partnership (including the exercise or grant of any conversion, option, privilege, or subscription right or other right available in connection with any assets at any time held by the Partnership) or the merger or other combination of the Partnership with or into another Person (entity on such terms as the matters described in this clause (iii) being subject, however, to any prior approval that may be required by Section 7.3)General Partner deems proper;
(iviii) the use of the assets of the Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms the General Partner sees fit, including including, without limitation,
(A) the financing of the conduct of the operations of the General Partner, the Partnership Group; subject to Section 7.6(a), or any of the Partnership’s Subsidiaries,
(B) the lending of funds to other Persons (including other Group Members)including, without limitation, the Subsidiaries of the Partnership and/or the General Partner) and the repayment or guarantee of obligations of the Partnership Group and its Subsidiaries and any other Person in which it has an equity investment, and
(C) the making of capital contributions to the Partnership’s Subsidiaries;
(iv) the development, expansion, construction, management, operation, leasing, repair, alteration, demolition or improvement of any member real property in which the Partnership or any Subsidiary of the Partnership Groupowns a direct or indirect interest;
(v) the negotiation, execution execution, and performance of any contracts, conveyances or other instruments (including instruments that limit the liability of General Partner considers useful or necessary to the Partnership under contractual arrangements to all or particular assets conduct of the Partnership, with ’s operations or the other party to the contract to have no recourse against implementation of the General Partner or its assets Partner’s powers under this Agreement, including contracting with contractors, developers, consultants, accountants, legal counsel, other than its interest in professional advisors and other agents and the payment of their expenses and compensation out of the Partnership, even if same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case)’s assets;
(vi) the distribution of Partnership cashcash or other Partnership assets in accordance with this Agreement;
(vii) the holding, management, investment and reinvestment of cash and other assets of the Partnership;
(viii) the collection and receipt of revenues and income of the Partnership;
(ix) the establishment of one or more divisions of the Partnership, the selection and dismissal of employees of the Partnership (including including, without limitation, employees having titles such as “president,” “vice president,” “secretary” and “treasurer”) ” of the Partnership), and agents, outside attorneys, accountants, consultants and contractors of the Partnership, and the determination of their compensation and other terms of employment or hiringengagement;
(viii) the maintenance of such insurance for the benefit of the Partnership Group and the Partners as it deems necessary or appropriate;
(ixx) the formation of, or acquisition of an interest (including non-voting interests in entities controlled by Affiliates of the Partnership or third parties) in, and the contribution of property and the making of loans to, any further limited or general partnershipsother Entities that the General Partner deems desirable (including, joint ventureswithout limitation, corporations, limited liability companies or other relationships (including the acquisition of interests in, and the contributions of funds or property to, or making of loans to, Subsidiaries of the Partnership and any Group Member other Person from time to time) subject ), or the incurrence of indebtedness on behalf of such Persons or the guarantee of the obligations of such Persons; provided that, as long as the General Partner has determined to elect to qualify as a REIT or to continue to qualify as a REIT, the restrictions set forth Partnership may not engage in Section 2.4any such formation, acquisition or contribution that would cause the General Partner to fail to qualify as a REIT;
(xxi) the control of any matters affecting the rights and obligations of the Partnership, including including:
(A) the bringing and defending settlement, compromise, submission to arbitration or any other form of actions at law dispute resolution, or abandonment of, any claim, cause of action, liability, debt or damages, due or owing to or from the Partnership,
(B) the commencement or defense of suits, legal proceedings, administrative proceedings, arbitration or other forms of dispute resolution, and
(C) the representation of the Partnership in equity and otherwise engaging in the conduct all suits or legal proceedings, administrative proceedings, arbitrations or other forms of litigation and dispute resolution, the incurring of legal expense expenses, and the settlement of claims and litigation;
(xi) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.8);
(xiii) unless restricted or prohibited by Section 5.7, the purchase, sale or other acquisition or disposition of Partnership Securities, or the issuance of additional options, rights, warrants and appreciation rights relating to Partnership Securities; and
(xiv) the undertaking of any action in connection with the Partnership’s participation direct or indirect investment in its Subsidiaries or any Group Member as a member other Person (including, without limitation, the contribution or partner.loan of funds by the Partnership to such Persons);
(bxiii) Notwithstanding the determination of the fair market value of any Partnership Assets distributed in kind using such reasonable method of valuation as the General Partner, in its sole discretion, may adopt;
(xiv) the exercise, directly or indirectly, through any attorney-in-fact acting under a general or limited power of attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(xv) the exercise of any of the powers of the General Partner enumerated in this Agreement or the undertaking of any action on behalf of or in connection with any Subsidiary of the Partnership or any other provision Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(xvi) the making, execution and delivery of any and all deeds, leases, notes, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate, in the judgment of the General Partner, for the accomplishment of any of the foregoing;
(xvii) the issuance of additional Partnership Interests in connection with Capital Contributions by Additional Limited Partners and additional Capital Contributions by Partners pursuant to Article 4 hereof;
(xviii) the opening of bank accounts on behalf of, and in the name of, the Partnership and its Subsidiaries; and
(xix) the amendment and restatement of Exhibit A to reflect accurately at all times the Capital Contributions of, Partnership Units held by and Percentage Interests of the Partners as the same are adjusted from time to time to the extent necessary to reflect any Capital Contributions, redemptions, issuance of Partnership Units, admission of any Additional Limited Partner or any Substituted Limited Partner or otherwise, which amendment and restatement, notwithstanding anything in this Agreement to the contrary, shall not be deemed an amendment of this Agreement, as long as the Operating Company Agreement, the Delaware Act matter or any applicable law, rule or regulation, each of the Partners and the Assignees and each other Person who may acquire an interest event being reflected in Partnership Securities hereby (i) approves, ratifies and confirms the execution, delivery and performance by the parties thereto of the Operating Company Agreement, any other limited liability company or partnership agreement of any other Group Member, the Underwriting Agreement, the Omnibus Agreement, the Contribution Agreement and the other agreements described in or filed as exhibits to the Registration Statement that are related to the transactions contemplated by the Registration Statement; (ii) agrees that the General Partner (on its own or through any officer of the Partnership) Exhibit A otherwise is authorized to execute, deliver and perform the agreements referred to in clause (i) of by this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership without any further act, approval or vote of the Partners or the Assignees or the other Persons who may acquire an interest in Partnership Securities; and (iii) agrees that the execution, delivery or performance by the General Partner, any Group Member or any Affiliate of any of them, of this Agreement or any agreement authorized or permitted under this Agreement (including the exercise by the General Partner or any Affiliate of the General Partner of the rights accorded pursuant to Article XV), shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement (or any other agreements) or of any duty stated or implied by law or equityAgreement.
Appears in 2 contracts
Samples: Limited Partnership Agreement (Healthcare Trust of America, Inc.), Limited Partnership Agreement (Healthcare Trust of America, Inc.)
Management. (a) The General Partner shall conduct, direct and manage all activities of the Partnership. 7.1.1 Except as otherwise expressly provided in this Agreement, all management powers over the business and affairs of the Partnership are and shall be exclusively vested in the General Partner, and no Limited Partner or Assignee shall have any right to participate in or exercise control or management power over the business and affairs of the Partnership. The General Partner may not be removed by the Partners with or without cause, except with the consent of the General Partner. In addition to the powers now or hereafter granted to a general partner of a limited partnership under applicable law or which that are granted to the General Partner under any other provision of this Agreement, the General Partner, subject to Section 7.3the other provisions hereof, shall have full power and authority to do all things and on such terms as it, in its sole discretion, may deem deemed necessary or appropriate desirable by it to conduct the business of the Partnership, to exercise all powers set forth in Section 2.5 3.2 hereof and to effectuate the purposes set forth in Section 2.43.1 hereof, including the followingincluding, without limitation:
(ia) the making of any expenditures, the lending or borrowing of moneymoney (including making prepayments on loans and borrowing money or selling assets to permit the Partnership to make distributions to its Partners in such amounts as will permit the General Partner (so long as the General Partner desires to maintain or restore its status as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Code Section 4981) and to make distributions sufficient to permit the General Partner to maintain or restore REIT status or otherwise to satisfy the REIT Requirements), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtednessindebtedness (including the securing of same by deed to secure debt, including indebtedness that is convertible into Partnership Securitiesmortgage, deed of trust or other lien or encumbrance on the Partnership’s assets) and the incurring of any other obligationsobligations that it deems necessary for the conduct of the activities of the Partnership;
(iib) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership;
(iiic) the acquisition, dispositionsale, mortgagelease, pledgetransfer, encumbranceexchange or other disposition of any, hypothecation all or exchange of any or substantially all of the assets of the Partnership (including, but not limited to, the exercise or grant of any conversion, option, privilege or subscription right or any other right available in connection with any assets at any time held by the merger Partnership) or, subject to Section 8.6, the merger, consolidation, reorganization or other combination of the Partnership with or into another Person (the matters described in this clause (iii) being subject, however, to any prior approval that may be required by Section 7.3)entity;
(ivd) the mortgage, pledge, encumbrance or hypothecation of any assets of the Partnership, the use of the assets of the Partnership (including cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms that it sees fit, including the financing of the conduct operations and activities of the operations General Partner, the Partnership or any of the Partnership Group; subject to Section 7.6(a)Partnership’s Subsidiaries, the lending of funds to other Persons (including other Group Members), the Partnership’s Subsidiaries) and the repayment or guarantee of obligations of the Partnership, its Subsidiaries and any other Person in which the Partnership Group has an equity investment, and the making of capital contributions to and equity investments in the Partnership’s Subsidiaries;
(e) the management, operation, leasing, landscaping, repair, alteration, demolition, replacement or improvement of any member Property, including any Contributed Property, or other asset of the Partnership Groupor any Subsidiary, whether pursuant to a Services Agreement or otherwise;
(vf) the negotiation, execution and performance of any contracts, leases, conveyances or other instruments (including instruments that limit the liability General Partner considers useful or necessary to the conduct of the Partnership’s operations or the implementation of the General Partner’s powers under this Agreement, including contracting with contractors, developers, consultants, accountants, legal counsel, the Advisor’s other professional advisors and other agents and the payment of their expenses and compensation out of the Partnership’s assets; provided, however, that the Advisory Agreement must contain a provision (the “Voting Direction Provision”) that requires the Advisor to vote its shares of Proportionate Voting Preferred Stock in proportion to the votes (the “LP Direction Votes”) that the Advisor receives from the holders of Partnership under contractual arrangements Units (other than the General Partner), that are issued pursuant to all the Master Agreement or particular pursuant to any option delivered pursuant thereto or in connection with the consummation of the transactions contemplated thereby. The Advisor shall not cast any votes with respect to the share of Proportionate Voting Preferred Stock unless it receives LP Direction Votes with respect thereto.
(g) the distribution of Partnership cash or other Partnership assets in accordance with this Agreement, the holding, management, investment and reinvestment of cash and other assets of the Partnership, with and the other party to the contract to have no recourse against the General Partner or its assets other than its interest in collection and receipt of revenues, rents and income of the Partnership, even if same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case);
(vi) the distribution of Partnership cash;
(vii) the selection and dismissal of employees (including employees having titles such as “president,” “vice president,” “secretary” and “treasurer”) and agents, outside attorneys, accountants, consultants and contractors and the determination of their compensation and other terms of employment or hiring;
(viiih) the maintenance of such insurance for the benefit of the Partnership Group and the Partners as it deems necessary or appropriate, including (i) casualty, liability and other insurance on the Properties and (ii) liability insurance for the Indemnitees hereunder;
(ixi) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies companies, joint ventures or other relationships that it deems desirable (including the acquisition of interests in, and the contributions of property to, any Group Member Subsidiary and any other Person in which it has an equity investment from time to time) subject to the restrictions set forth in Section 2.4);
(xj) the control of any matters affecting the rights and obligations of the Partnership, including the bringing settlement, compromise, submission to arbitration or any other form of dispute resolution, or abandonment, of any claim, cause of action, liability, debt or damages, due or owing to or from the Partnership, the commencement or defense of suits, legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, and defending the representation of actions at law the Partnership in all suits or in equity and otherwise engaging in the conduct legal proceedings, administrative proceedings, arbitrations or other forms of litigation and dispute resolution, the incurring of legal expense expense, and the settlement of claims and litigation;
(xi) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.8);
(xiii) unless restricted or prohibited by Section 5.7, the purchase, sale or other acquisition or disposition of Partnership Securities, or the issuance of additional options, rights, warrants and appreciation rights relating to Partnership Securities; and
(xivk) the undertaking of any action in connection with the Partnership’s participation direct or indirect investment in any Group Member as a member Subsidiary or partner.any other Person (including the contribution of Property or contribution or loan of funds by the Partnership to such Persons);
(bl) Notwithstanding any other provision of except as otherwise specifically set forth in this Agreement, the Operating Company Agreement, the Delaware Act or any applicable law, rule or regulation, each determination of the Partners fair market value of any Partnership property distributed in kind using such method of valuation as it may reasonably adopt as long as such method is otherwise consistent with the requirements of this Agreement;
(m) the enforcement of any rights against any Partner pursuant to representations, warranties, covenants and indemnities relating to such Partner’s contribution of property or assets to the Assignees and each other Person who may acquire an interest in Partnership Securities hereby Partnership;
(in) approvesthe exercise, ratifies and confirms directly or indirectly, through any attorney-in-fact acting under a general or limited power of attorney, of any right, including the executionright to vote, delivery and performance appurtenant to any asset or investment held by the parties thereto Partnership;
(o) the exercise of any of the Operating Company Agreement, any other limited liability company or partnership agreement powers of any other Group Member, the Underwriting Agreement, the Omnibus Agreement, the Contribution Agreement and the other agreements described in or filed as exhibits to the Registration Statement that are related to the transactions contemplated by the Registration Statement; (ii) agrees that the General Partner (enumerated in this Agreement on its own behalf of or through in connection with any officer Subsidiary of the PartnershipPartnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(p) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest, pursuant to contractual or other arrangements with such Person;
(q) the making, execution and delivery of any and all deeds, leases, notes, deeds to secure debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate in the judgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement;
(r) the issuance of additional Partnership Units, as appropriate and in the General Partner’s sole and absolute discretion, in connection with Capital Contributions by Additional Limited Partners and additional Capital Contributions by Partners pursuant to Section 4 hereof;
(s) the selection and dismissal of Partnership Employees (including employees having titles or offices such as president, vice president, secretary and treasurer), and agents, outside attorneys, accountants, consultants and contractors of the Partnership or the General Partner, the determination of their compensation and other terms of employment or hiring and the delegation to any such Partnership Employee the authority to conduct the business of the Partnership in accordance with the terms of this Agreement; and
(t) an election to dissolve the Partnership pursuant to Section 13.1.2 hereof.
7.1.2 Except as provided in Section 14.2 hereof, the General Partner is authorized to execute, deliver and perform the above-mentioned agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership without any further act, approval or vote of the Partners Partners, notwithstanding any other provision of this Agreement, the Act or any applicable law, rule or regulation. To the Assignees or the other Persons who may acquire an interest in Partnership Securities; and (iii) agrees that fullest extent permitted by law, the execution, delivery or performance by the General Partner, any Group Member Partner or any Affiliate the Partnership of any of them, of this Agreement or any agreement authorized or permitted under this Agreement (including the exercise by the General Partner or any Affiliate of the General Partner of the rights accorded pursuant to Article XV), shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement (or any other agreements) or of any duty stated or implied by law or equity.
7.1.3 At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain working capital and other reserves in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
7.1.4 In exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner (including the General Partner) of any action taken by it. The General Partner and the Partnership shall not have liability to a Limited Partner under any circumstances as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner pursuant to its authority under this Agreement.
7.1.5 The General Partner may not take any action in contravention of this Agreement, including, without limitation:
(a) taking any action that would make it impossible to carry on the ordinary business of the Partnership, except as otherwise provided in this Agreement;
(b) possessing Property, or assigning any rights in specific Property, for other than a Partnership purpose except as otherwise provided in this Agreement, including Section 7.9;
(c) admitting a Person as a Partner, except as otherwise provided in this Agreement;
(d) performing any act that would subject a Limited Partner to liability as a general partner in any jurisdiction or any other liability except as otherwise provided in this Agreement or under the Act; or
(e) entering into any contract, mortgage, loan or other agreement that prohibits or restricts the ability of (a) the General Partner or the Partnership from satisfying its obligations under Section 8.5 hereof in full or (b) a Limited Partner from exercising its rights under Section 8.5 hereof to effect a Redemption in full, except, in either case, with the written consent of such Limited Partner adversely affected by the prohibition or restriction.
Appears in 2 contracts
Samples: Limited Partnership Agreement (Pacific Office Properties Trust, Inc.), Limited Partnership Agreement (Pacific Office Properties Trust, Inc.)
Management. (a) The General Partner shall conduct, direct and manage all activities of the Partnership. Except as otherwise expressly provided in this Agreement, all management powers over the business and affairs of the Partnership are and shall be exclusively vested in the General Partner, and no Limited Partner or Assignee shall have any right to participate in or exercise control or management power over the business and affairs of the Partnership. The General Partner may not be removed by the Limited Partners, with or without cause, except with the consent of the General Partner. In addition to the powers now or hereafter granted to a general partner of a limited partnership under applicable law or which are granted to the General Partner under any other provision of this Agreement, the General Partner, subject to Section 7.37.3 hereof, shall have full power and authority to do all things and on such terms as itdeemed necessary, in its sole discretion, may deem necessary desirable or appropriate convenient by it to conduct the business of the Partnership, to exercise all powers set forth in Section 2.5 3.2 hereof and to effectuate the purposes set forth in Section 2.43.1 hereof, including the followingincluding, without limitation:
(i) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money to permit the Partnership to make distributions to its Partners in such amounts as will permit STAG REIT (so long as STAG REIT desires to maintain its qualification as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Section 4981 of the Code) and to make distributions to its stockholders in amounts sufficient to permit STAG REIT to maintain its qualification as a REIT), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences evidence of indebtednessindebtedness (including the securing of the same by deed, including indebtedness that is convertible into Partnership Securitiesmortgage, deed of trust or other lien or encumbrance on the Partnership’s assets) and the incurring of any other obligationsobligations it deems necessary for the conduct of the activities of the Partnership;
(ii) the making of tax, regulatory and other filingsfilings or elections, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership;
(iii) the acquisition, dispositionsale, mortgagelease, pledgetransfer, encumbrance, hypothecation exchange or exchange other disposition of any or all of the assets of the Partnership (including the exercise or grant of any conversion, option, privilege, or subscription right or other right available in connection with any assets at any time held by the Partnership) or the merger or other combination of the Partnership with or into another Person entity (all of the matters described in this clause (iii) being subject, however, foregoing subject to any prior approval that may be only to the extent required by Section 7.37.3 or 8.9 hereof);
(iv) the mortgage, pledge, encumbrance or hypothecation of any assets of the Partnership, the use of the assets of the Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms that it sees fit, including including, without limitation, the financing of the conduct of the operations of the Partnership Group; subject to Section 7.6(a)Partnership, the General Partner, STAG REIT or any of the Partnership’s, the General Partner’s or STAG REIT’s Subsidiaries, the lending of funds to other Persons (including other Group Members)including, without limitation, the Subsidiaries of the Partnership, the General Partner and/or STAG REIT) and the repayment or guarantee of obligations of the Partnership Group and its Subsidiaries and any other Person in which it has an equity investment, and the making of capital contributions to any member of the Partnership Groupits Subsidiaries;
(v) the negotiation, execution execution, delivery and performance of any contracts, conveyances or other instruments (including instruments that limit the liability of General Partner considers useful or necessary or convenient to the Partnership under contractual arrangements to all or particular assets conduct of the Partnership, with ’s operations or the other party to the contract to have no recourse against implementation of the General Partner or its assets Partner’s powers under this Agreement, including, without limitation, contracting with consultants, accountants, legal counsel, other than its interest in professional advisors and other agents and the payment of their expenses and compensation out of the Partnership, even if same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case)’s assets;
(vi) the distribution of Partnership cashcash or other Partnership assets in accordance with this Agreement;
(vii) holding, managing, investing and reinvesting cash and other assets of the Partnership;
(viii) the collection and receipt of revenues and income of the Partnership;
(ix) the establishment of one or more divisions of the Partnership, the selection and dismissal of employees of the Partnership (including including, without limitation, employees having who may be designated as officers with titles such as “president,” “vice president,” “secretary” and “treasurer”) ” of the Partnership), and agents, outside attorneys, accountants, consultants and contractors of the Partnership, and the determination of their compensation and other terms of employment or hiring;
(viiix) the maintenance of such insurance for the benefit of the Partnership Group and the Partners as it deems necessary or appropriate;
(ixxi) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventureslimited liability companies, real estate investment trusts, corporations, limited liability companies entities that are treated as REITs, “taxable REIT subsidiaries” or foreign corporations for federal income tax purposes, joint ventures or other relationships that it deems desirable (including including, without limitation, the acquisition of interests in, and the contributions of property or the making of loans to, its, STAG REIT’s or the General Partner’s Subsidiaries and any Group Member other Person in which it has an equity investment from time to time) subject time or the incurrence of indebtedness on behalf of such Persons or the guarantee of obligations of such Persons and the making of any tax, regulatory or other filing or election with respect to any of the restrictions set forth foregoing Persons); provided, that as long as STAG REIT has determined to continue to qualify as a REIT, the Partnership may not engage in Section 2.4any such formation, acquisition or contribution that would cause STAG REIT to fail to qualify as a REIT;
(xxii) the control of any matters affecting the rights and obligations of the Partnership, including the bringing and defending settlement, compromise, submission to arbitration or any other form of actions at law dispute resolution, or in equity and otherwise engaging in abandonment of, any claim, cause of action, liability, debt or damages, due or owing to or from the conduct Partnership, the commencement or defense of litigation suits, legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, and the incurring representation of the Partnership in all suits or legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, the incurrence of legal expense expense, and the settlement of claims and litigation;
(xi) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.8);
(xiii) unless restricted or prohibited by Section 5.7, the purchase, sale or other acquisition or disposition of Partnership Securities, or the issuance of additional options, rights, warrants and appreciation rights relating to Partnership Securities; and
(xiv) the undertaking of any action in connection with the Partnership’s participation direct or indirect investment in any Group Member Subsidiary or any other Person (including, without limitation, the contribution or loan of funds by the Partnership to such Persons);
(xiv) except as otherwise specifically set forth in this Agreement, the determination of the fair market value of any Partnership property distributed in kind using such reasonable method of valuation as the General Partner may adopt;
(xv) the enforcement of any rights against any Partner pursuant to representations, warranties, covenants and indemnities relating to such Partner’s contribution of property or assets to the Partnership;
(xvi) the exercise, directly or indirectly, through any attorney-in-fact acting under a general or limited power of attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(xvii) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(xviii) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest pursuant to contractual or other arrangements with such Person;
(xix) the making, execution, delivery and performance of any and all deeds, leases, notes, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary, appropriate or convenient, in the judgment of the General Partner, for the accomplishment of any of the powers of the General Partner enumerated in this Agreement;
(xx) the issuance of additional OP Units and other partnership interests, as appropriate, in connection with Capital Contributions by Additional Limited Partners and additional Capital Contributions by Partners pursuant to Article 4 hereof;
(xxi) the taking of any action necessary or appropriate to enable STAG REIT to qualify as a member REIT;
(xxii) the management, operation, leasing, landscaping, repair, alteration, demolition, replacement or partnerimprovement of any Property;
(xxiii) an election to dissolve the Partnership pursuant to Section 13.1(c) hereof;
(xxiv) the amendment and restatement of Exhibit A hereto to reflect accurately at all times the Capital Contributions and Percentage Interests of the Partners as the same are adjusted from time to time to the extent necessary to reflect redemptions, Capital Contributions, the issuance of OP Units, the admission of any Additional Limited Partner or any Substituted Limited Partner or otherwise;
(xxv) the registration of any class of securities of the Partnership under the Securities Act or the Exchange Act, and the listing of any debt securities of the Partnership on any exchange; and
(xxvi) the taking of any and all acts necessary or prudent to ensure that the Partnership will not be classified as a “publicly traded partnership” under Code Section 7704.
(b) Notwithstanding any other provision of this Agreement, the Operating Company Agreement, the Delaware Act or any applicable law, rule or regulation, each Each of the Limited Partners and the Assignees and each other Person who may acquire an interest in Partnership Securities hereby (i) approves, ratifies and confirms the execution, delivery and performance by the parties thereto of the Operating Company Agreement, any other limited liability company or partnership agreement of any other Group Member, the Underwriting Agreement, the Omnibus Agreement, the Contribution Agreement and the other agreements described in or filed as exhibits to the Registration Statement that are related to the transactions contemplated by the Registration Statement; (ii) agrees that the General Partner (on its own or through any officer of the Partnership) is authorized to execute, deliver and perform the above-mentioned agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership without any further act, approval or vote of the Partners Partners, notwithstanding any other provision of this Agreement (except as provided in Section 7.3), the Act or any applicable law, rule or regulation, to the Assignees fullest extent permitted under the Act or the other Persons who may acquire an interest in Partnership Securities; and (iii) agrees that the applicable law, rule or regulation. The execution, delivery or performance by the General Partner, any Group Member Partner or any Affiliate the Partnership of any of them, of this Agreement or any agreement authorized or permitted under this Agreement (including the exercise by the General Partner or any Affiliate of the General Partner of the rights accorded pursuant to Article XV), shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement (or any other agreements) or of any duty stated or implied by law or equity.
(c) At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain working capital accounts and other cash or similar balances in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
(d) In exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner of any action taken by it. The General Partner and the Partnership shall not be liable to a Limited Partner under any circumstances as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner taken pursuant to its authority under this Agreement and in accordance with the terms of Section 7.3.
Appears in 2 contracts
Samples: Agreement of Limited Partnership (STAG Industrial, Inc.), Agreement of Limited Partnership (STAG Industrial, Inc.)
Management. (a) The General Partner shall conduct, direct and manage all activities of the Partnership. A. Except as otherwise expressly provided in this Agreement, all management powers over the business and affairs of the Partnership shall be are exclusively vested in the General Partner, and no Limited Partner or Assignee shall have any right to participate in or exercise control or management power over the business and affairs of the Partnership. The General Partner may not be removed by the Limited Partners with or without cause, except with the consent of the General Partner. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or which are granted to the General Partner under any other provision of this Agreement, the General Partner, subject to the other provisions of this Agreement, including without limitation Section 7.3, shall have full power and authority to do all things and on such terms as it, in its sole discretion, may deem deemed necessary or appropriate desirable by it to conduct the business of the Partnership, to exercise all powers set forth in Section 2.5 3.2 and to effectuate the purposes set forth in Section 2.43.1, including the followingincluding, without limitation:
(i1) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money to permit the Partnership to make distributions to its Partners in such amounts as will permit the General Partner (so long as the General Partner has determined to qualify as a REIT) to avoid the incurrence of any federal income tax (including, for this purpose, any excise tax pursuant to Section 4981 of the Code) and to make distributions to its shareholders sufficient to permit the General Partner to maintain REIT status), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtednessindebtedness (including the securing of same by mortgage, including indebtedness that is convertible into Partnership Securities, deed of trust or other lien or encumbrance on the Partnership’s assets) and the incurring of any other obligationsobligations it deems necessary for the conduct of the activities of the Partnership;
(ii2) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership;
(iii3) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the Partnership or the merger or other combination of the Partnership with or into another Person (the matters described in this clause (iii) being subject, however, to any prior approval that may be required by Section 7.3)entity;
(iv4) the mortgage, pledge, encumbrance or hypothecation of any assets of the Partnership, and the use of the assets of the Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms it sees fit, including including, without limitation, the financing of the conduct of or the operations of the Partnership Group; subject to Section 7.6(a)General Partner or the Partnership, the lending of funds to other Persons (including other Group Members)including, without limitation, the General Partner (if necessary to permit the financing or capitalization of a Subsidiary of the Partnership) or any Subsidiaries of the Partnership) and the repayment or guarantee of obligations of the Partnership Group Partnership, any of its Subsidiaries and the making of capital contributions to any member of the Partnership Groupother Person in which it has an equity investment;
(v5) the negotiation, execution execution, and performance of any contracts, leases, conveyances or other instruments (including instruments that limit the liability of General Partner considers useful or necessary to the Partnership under contractual arrangements to all or particular assets conduct of the Partnership, with ’s operations or the other party to the contract to have no recourse against implementation of the General Partner or its assets other than its interest in the Partnership, even if same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case)Partner’s powers under this Agreement;
(vi6) the distribution of Partnership cashcash or other Partnership assets in accordance with this Agreement;
(vii7) the selection and dismissal of employees of the Partnership (including including, without limitation, employees having titles such as “president,” “vice president,” “secretary” and “treasurer”) ), and agents, outside attorneys, accountants, consultants and contractors and of the Partnership, the determination of their compensation and other terms of employment or hiring, including waivers of conflicts of interest and the payment of their expenses and compensation out of the Partnership’s assets;
(viii) 8) the maintenance of such insurance (including, without limitation, directors and officers insurance) for the benefit of the Partnership Group and the Partners as it deems necessary or appropriate;
(ix9) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies ventures or other relationships that it deems desirable (including including, without limitation, the acquisition of interests in, and the contributions of property to, to any Group Member Subsidiary and any other Person in which it has an equity investment from time to time) subject ); provided that, as long as the General Partner has determined to continue to qualify as a REIT, the restrictions set forth Partnership may not engage in Section 2.4any such formation, acquisition or contribution that would cause the General Partner to fail to qualify as a REIT;
(x10) the control of any matters affecting the rights and obligations of the Partnership, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigation and the incurring of legal expense and the settlement of claims and litigation;
(xi) , and the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.8);
(xiii) unless restricted or prohibited by Section 5.7, the purchase, sale or other acquisition or disposition of Partnership Securities, or the issuance of additional options, rights, warrants and appreciation rights relating to Partnership Securities; and
(xiv11) the undertaking of any action in connection with the Partnership’s participation direct or indirect investment in any Group Member as a member Person (including, without limitation, contributing or partner.loaning Partnership funds to, incurring indebtedness on behalf of, or guarantying the obligations of any such Persons);
(b12) Notwithstanding any subject to the other provision of provisions in this Agreement, the Operating Company determination of the fair market value of any Partnership property distributed in kind using such reasonable method of valuation as it may adopt, provided that such methods are otherwise consistent with requirements of this Agreement;
(13) the management, operation, leasing, landscaping, repair, alteration, demolition or improvement of any real property or improvements owned by the Delaware Act Partnership or any applicable law, rule or regulation, each Subsidiary of the Partners Partnership or any Person in which the Partnership has made a direct or indirect equity investment;
(14) holding, managing, investing and reinvesting cash and other assets of the Assignees Partnership;
(15) the collection and each receipt of revenues and income of the Partnership;
(16) the exercise, directly or indirectly through any attorney-in-fact acting under a general or limited power of attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(17) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person who may acquire in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(18) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest in Partnership Securities hereby pursuant to contractual or other arrangements with such Person;
(i19) approves, ratifies and confirms the execution, delivery and performance by the parties thereto maintenance of the Operating Company AgreementPartnership’s books and records; and
(20) the making, any other limited liability company or partnership agreement execution and delivery of any other Group Memberand all deeds, leases, notes, deeds to secure debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate in the Underwriting judgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement, .
B. Each of the Omnibus Agreement, the Contribution Agreement and the other agreements described in or filed as exhibits to the Registration Statement that are related to the transactions contemplated by the Registration Statement; (ii) Limited Partners agrees that the General Partner (on its own or through any officer of the Partnership) is authorized to execute, deliver and perform the above-mentioned agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership without any further act, approval or vote of the Partners Partners, notwithstanding any other provisions of this Agreement (except as provided in Section 7.3), the Act or the Assignees any applicable law, rule or the other Persons who may acquire an interest in Partnership Securities; and (iii) agrees that the regulation. The execution, delivery or performance by the General Partner, any Group Member Partner or any Affiliate the Partnership of any of them, of this Agreement or any agreement authorized or permitted under this Agreement (including the exercise by the General Partner or any Affiliate of the General Partner of the rights accorded pursuant to Article XV), shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement (or any other agreements) or of any duty stated or implied by law or equity.
C. At all times from and after the date hereof, the General Partner may cause the Partnership to obtain and maintain (i) casualty, liability and other insurance on the properties of the Partnership and (ii) liability insurance for the Indemnities hereunder.
D. At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain working capital reserves in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
E. Except as provided in this Agreement with respect to the qualification of the General Partner as a REIT and as may be provided in a separate written agreement between the Partnership and a Limited Partner, in exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner (including the General Partner) of any action taken by the General Partner. Except as provided in this Agreement with respect to the qualification of the General Partner as a REIT and as may be provided in a separate written agreement between the Partnership and a Limited Partner, the General Partner and the Partnership shall not have liability to a Partner under any circumstances as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner pursuant to its authority under this Agreement.
Appears in 2 contracts
Samples: Limited Partnership Agreement (Seritage Growth Properties), Limited Partnership Agreement (Seritage Growth Properties)
Management. (a) The General Partner shall conduct, direct and manage all activities of the Partnership. Except as otherwise expressly provided in this Agreement, all management powers over including the provisions of Section 8.02, the business and affairs of the Partnership shall be exclusively vested in and controlled by the General Partner, and no Limited Partner or Assignee shall have any management power over the business and affairs of the Partnership. In addition .
(b) Subject to the powers now or hereafter granted a general partner provisions of a limited partnership under applicable law or which are granted to Section 8.02, the General Partner under any other provision of this Agreement, the General Partner, subject to Section 7.3, shall have full power and the sole authority to do all things authorize and on such terms as it, in its sole discretion, may deem necessary or appropriate approve any matters pertaining to conduct the Partnership's business and any matters pertaining to the business of any SPV, including, without limitation, the Partnership, to exercise all powers set forth in Section 2.5 and to effectuate the purposes set forth in Section 2.4, including the followingfollowing matters:
(i) the The making of any expenditures, decision and the lending or borrowing implementing of money, the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtednessany decision to acquire any Property, including indebtedness that is convertible into Partnership Securities, any decision to admit (A) any additional Class B Interest Holders and/or any additional Class A Interest Holders and the incurring terms and conditions upon which such admission will occur (including any decision to accept Capital Contributions from any such additional Class A Interest Holder and/or any additional Class B Interest Holder and any valuation thereof) and/or (B) accept additional Capital Contributions from any existing Partners for the purpose of any other obligationsacquiring one or more additional Properties;
(ii) the making of taxAny financing, regulatory and other filings, refinancing or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership;
(iii) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange securitization of any or all of the assets of the Partnership or the merger or other combination of the Partnership with or into another Person (the matters described in this clause (iii) being subject, however, to any prior approval that may be required by Section 7.3);
(iv) Property and the use of the assets of the Partnership (including cash on hand) for any purpose consistent with the terms of this Agreementproceeds thereof, including the including, without limitation, construction, interim and permanent financing, and any other financing of the conduct or refinancing of the operations of the Partnership Group; subject or any SPV and the execution and delivery of any documents, agreements or instruments evidencing, securing or relating to any such financing or any amendment, modification, extension or termination of (or making any material decision, taking any material action, providing any material consent or approval or waiving any material right under) any such documents, agreements or instruments;
(iii) Any restructuring, improvement, rehabilitation, alteration, repair, or completion of construction or reconstruction of all or any portion of any Property;
(iv) The establishment of reserves reasonably required in light of anticipated operational needs, acquisitions and contingent and non-contingent liabilities (or reserves retained for purposes of implementing Section 7.6(a6.02 hereof), and the lending of funds to other Persons (including other Group Members), the repayment or guarantee of obligations determination of the Partnership Group amount of available Operating Cash Flow and Capital Proceeds and the making timing of capital contributions to any member distributions of the Partnership Groupavailable Operating Cash Flow and Capital Proceeds or reserves retained for purposes of implementing Section 6.02 hereof;
(v) the negotiation, execution and performance The institution of any contracts, conveyances or other instruments (including instruments that limit legal proceedings in the liability name of the Partnership under contractual arrangements to all or particular assets any SPV, settlement of any legal proceedings against the Partnership or any SPV and confession of any judgment against the Partnership, with the other party to the contract to have no recourse against the General Partner any SPV or its assets other than its interest in the Partnership, even if same results in the terms any property of the transaction being less favorable to the Partnership than would otherwise be the case)or any SPV or making any decision, taking any action, providing any consent or approval or waiving any rights thereunder;
(vi) All personnel matters involving the distribution Partnership and any SPV, including, without limitation, the hiring or discharge of employees and contractors of the Partnership cashor any SPV, delegation of authority to any employees or contractors, establishment or amendment of employment policies and benefit plans, etc.;
(vii) Determining the selection amount of overhead and dismissal of employees (including employees having titles such as “president,” “vice president,” “secretary” and “treasurer”) and agentsother reimbursements or any salary, outside attorneys, accountants, consultants and contractors and the determination compensation or other remuneration payable to any Partner or any of their compensation Affiliates pursuant to the terms hereof or any separate agreement between the Partnership or any SPV and other terms a Partner, or any of employment or hiringtheir Affiliates;
(viii) The appointment of the maintenance Partnership Accountant or any change in the Partnership Accountant or the selection of such insurance any other auditor or independent accounting firm for the Partnership or any SPV, or the making of any decision to change any other auditor or independent accounting firm of the Partnership or any SPV;
(A) The filing of any voluntary petition in bankruptcy on behalf of the Partnership or any SPV, (B) the consenting to the filing of any involuntary petition in bankruptcy against the Partnership or any SPV, (C) the filing of any petition seeking, or the consenting to, reorganization or relief under any applicable federal or state law relating to bankruptcy or insolvency by or on behalf of the Partnership or any SPV, (D) the consenting to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of the Partnership, any SPV or a substantial part of its or their property, (E) the making of any assignment for the benefit of creditors by or on behalf of the Partnership Group and the Partners as it deems necessary or appropriate;
any SPV, (ixF) the formation of, admission in writing of the Partnership's or acquisition any SPV's inability to pay its debts generally as they become due or (G) the taking of an interest in, and any action by the contribution Partnership or any SPV in furtherance of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies or other relationships (including the acquisition of interests in, and the contributions of property to, any Group Member from time to time) subject to the restrictions set forth in Section 2.4such action;
(x) The making of all material tax elections, determinations and other decisions under the control of Code and any matters affecting decision to settle or compromise any matter raised by the rights and obligations of the Partnership, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigation and the incurring of legal expense and the settlement of claims and litigationInternal Revenue Service;
(xi) the indemnification Any sale, exchange, transfer or other disposition of all or any part of any Person against liabilities Property, or any sale, transfer or other disposition of all or any part of the Partnership's interest in any SPV and contingencies to the extent permitted by lawexecution and delivery of any documents, agreements, contracts, binding letters of intent or other document or instrument relating thereto or any amendment, modification, extension or termination of (or making any material decision, taking any material action, providing any material consent or approval or waiving any material right under) any such agreement, contract, binding letter of intent or other document or instrument;
(xii) the entering into The Partnership's or any SPV's incurrence of listing agreements any liabilities or obligations with regard to any National Securities Exchange and the delisting debt or loan guaranties, letters of some credit, hedge or all of the Limited Partner Interests fromhedging agreements, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.8)similar contingent liabilities;
(xiii) unless restricted The making of any decision and the implementing of any decision to form an SPV and to assign, transfer or prohibited by Section 5.7convey all or any portion of any Property or the rights to acquire any Property to such SPV and the execution and delivery of any documents, the purchaseagreements or instruments implementing, sale evidencing or relating to any such decision or action (including any organizational documents relating to any SPV) or amending, modifying, extending or terminating of (or making any material decision, taking any material action, providing any material consent or approval or waiving any material rights under) any such document, agreement or other acquisition instrument;
(xiv) Any decision to dissolve, windup and terminate the Partnership or disposition any SPV and any decision to distribute all or any portion of any Property (or any other property of the Partnership Securities, or the issuance of additional options, rights, warrants and appreciation rights relating to Partnership Securitiesany SPV) in kind; and
(xivxv) With regard to any SPV or any other Person in which the undertaking Partnership holds a direct or indirect equity interest, the making of any decision, taking any action in connection or providing any consent or approval with regard to any matter which might otherwise require an action by the Partnership’s participation in any Group Member as a member or partner.
(bc) Notwithstanding For matters requiring approval of the Management Board, the General Partner shall prepare and submit any other provision necessary materials to the Management Board for its approval prior to taking any final action with respect to such matters.
(d) Subject to the terms of this Agreement, the Operating Company Agreement, the Delaware Act or any applicable law, rule or regulation, each of the Partners and the Assignees and each other Person who may acquire an interest in Partnership Securities hereby (i) approves, ratifies and confirms the execution, delivery and performance by the parties thereto of the Operating Company Agreement, any other limited liability company or partnership agreement of any other Group Member, the Underwriting Agreement, the Omnibus Agreement, the Contribution Agreement and the other agreements described in or filed as exhibits to the Registration Statement that are related to the transactions contemplated limitations imposed by the Registration Statement; (ii) agrees that law, the General Partner (on its own or through any officer shall have all of the Partnershipsame powers as a general partner of a general partnership under the laws of the State of Delaware.
(e) is authorized The Limited Partners shall not have any right or power to execute, deliver and perform the agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described participate in or contemplated by have any control over the Registration Statement on behalf of Partnership's or any SPV's business affairs or operations or to act for or to bind the Partnership without any further act, approval or vote of the Partners or the Assignees or the other Persons who may acquire an interest in Partnership Securities; and (iii) agrees that the execution, delivery or performance by the General Partner, any Group Member or any Affiliate of SPV in any of themmanner whatsoever, of this Agreement or any agreement authorized nor shall they be required or permitted under this Agreement (including the exercise to consent to, acquiesce in, vote on or approve any action or act taken or decision made by the General Partner or any Affiliate of the General Partner of the rights accorded pursuant to Article XV), shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement (or any other agreements) or of any duty stated or implied by law or equityexcept as otherwise specifically provided herein.
Appears in 2 contracts
Samples: Limited Partnership Agreement (Heinz Hj Finance Co), Limited Partnership Agreement (Heinz Hj Finance Co)
Management. (a) The General Partner shall conduct, direct and manage all activities of the Partnership. A. Except as otherwise expressly provided in this Agreement, all management powers over the business and affairs of the Partnership are and shall be exclusively vested in the General Partner, and no . The Limited Partner or Assignee Partners shall not have any right to participate in or exercise control or management power over the business and affairs of the Partnership. The General Partner may not be removed by the Limited Partners. In addition to the powers now or hereafter granted to a general partner of a limited partnership under applicable law or which are granted to the General Partner under any other provision of this Agreement, the General Partner, subject to Section 7.37.3 hereof, shall have full power and authority to do all things and on such terms as it, in its sole discretion, may deem deemed necessary or appropriate desirable by it to conduct the business of the Partnership, to exercise all powers set forth in Section 2.5 3.2 hereof and to effectuate the purposes set forth in Section 2.43.1 hereof, including, without limitation:
(1) the execution, acknowledgement, verification, delivery, filing and recording, for and in the name of the Partnership, and, to the extent necessary, the General Partner and the Initial Limited Partner, of any and all documents and instruments, including the following:LCIF Merger Agreement and the performance of any and all acts required by applicable law or which GP-1 deems necessary or advisable in order to give effect to the consummation of the LCIF Merger;
(i2) the making of any expenditures, the lending lending, borrowing or guarantee of money (including, without limitation, making prepayments on loans and borrowing money to permit the Partnership to make distributions to its Partners in such amounts as will permit LXP (so long as LXP qualifies as a REIT) in general, including, without limitation, to avoid the payment of moneyany federal income tax (including, for this purpose, any excise tax pursuant to Section 4981 of the Code), to make distributions to its stockholders sufficient to permit LXP to maintain REIT status), the incurrence of inter-company indebtedness and the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtedness, including indebtedness that is convertible into Partnership Securities, and the incurring of any other obligations;
(ii) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership;
(iii3) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the Partnership or the merger or other combination of the Partnership with or into another Person entity (all of the matters described in this clause (iii) being subject, however, foregoing subject to any prior approval that may be only to the extent required by Section 7.37.3 hereof);
(iv4) the use of the assets of the Partnership (including cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms the General Partner sees fit, including the financing of the conduct of the operations of the Partnership Group; subject to Section 7.6(a), the lending of funds to other Persons (including other Group Members), the repayment or guarantee of obligations of the Partnership Group and the making of capital contributions or loans to any member of the Partnership Groupits Subsidiaries;
(v5) the management, operation, leasing, landscaping, repair, alteration, demolition or improvement of any real property or improvements owned by the Partnership or any Subsidiary of the Partnership;
(6) the negotiation, execution and performance of any contracts, conveyances or other instruments (including instruments that limit the liability of General Partner considers useful or necessary to the Partnership under contractual arrangements to all or particular assets conduct of the Partnership, with 's operations or the other party to the contract to have no recourse against implementation of the General Partner or its assets other than its interest in the Partnership, even if same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case)Partner's powers under this Agreement;
(vi7) the distribution of Partnership cashcash or other Partnership assets in accordance with this Agreement;
(vii) the selection and dismissal of employees (including employees having titles such as “president,” “vice president,” “secretary” and “treasurer”) and agents, outside attorneys, accountants, consultants and contractors and the determination of their compensation and other terms of employment or hiring;
(viii) the maintenance of such insurance for the benefit of the Partnership Group and the Partners as it deems necessary or appropriate;
(ix) 8) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies or other relationships (including joint ventures that the acquisition of interests in, and the contributions of property to, any Group Member from time to time) subject to the restrictions set forth in Section 2.4General Partner deems desirable;
(x) the control of any matters affecting the rights and obligations of the Partnership, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigation and the incurring of legal expense and the settlement of claims and litigation;
(xi) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.8);
(xiii) unless restricted or prohibited by Section 5.7, the purchase, sale or other acquisition or disposition of Partnership Securities, or the issuance of additional options, rights, warrants and appreciation rights relating to Partnership Securities; and
(xiv9) the undertaking of any action in connection with the Partnership’s participation 's direct or indirect investment in its Subsidiaries or any Group Member other Person (including, without limitation, the contribution or loan of funds by the Partnership to such Persons);
(10) the determination of the fair market value of any Partnership property distributed in kind using such reasonable method of valuation as the General Partner may adopt;
(11) the exercise, directly or indirectly, through any attorney-in-fact acting under a member general or partnerlimited power of attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership; and
(12) the making, execution and delivery of any and all deeds, leases, notes, deeds to secure debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate in the judgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement.
(b) Notwithstanding any other provision of this AgreementB. At all times from and after the date hereof, the Operating Company Agreement, General Partner may cause the Delaware Act or any applicable law, rule or regulation, each of the Partners Partnership to obtain and the Assignees and each other Person who may acquire an interest in Partnership Securities hereby maintain (i) approvescasualty, ratifies liability and confirms other insurance on the execution, delivery and performance by the parties thereto properties of the Operating Company Agreement, any other limited liability company or partnership agreement of any other Group Member, the Underwriting Agreement, the Omnibus Agreement, the Contribution Agreement Partnership and the other agreements described in or filed as exhibits to the Registration Statement that are related to the transactions contemplated by the Registration Statement; (ii) agrees that liability insurance for the Indemnitees hereunder.
C. At all times from and after the date hereof, the General Partner (on its own or through any officer of the Partnership) is authorized to execute, deliver and perform the agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of may cause the Partnership without to establish and maintain any further actand all reserves, approval working capital accounts and other cash or vote of the Partners or the Assignees or the other Persons who may acquire an interest similar balances in Partnership Securities; and (iii) agrees that the execution, delivery or performance by such amounts as the General Partner, any Group Member or any Affiliate of any of themin its sole discretion, of this Agreement or any agreement authorized or permitted under this Agreement (including the exercise by the General Partner or any Affiliate of the General Partner of the rights accorded pursuant deems appropriate and reasonable from time to Article XV), shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement (or any other agreements) or of any duty stated or implied by law or equitytime.
Appears in 2 contracts
Samples: Limited Partnership Agreement (Lepercq Corporate Income Fund L P), Limited Partnership Agreement (Lexington Realty Trust)
Management. (a) The General Partner shall conduct, direct and manage all activities of the Partnership. Except as otherwise expressly provided in this Agreement, all management powers over the business and affairs of the Partnership are and shall be exclusively vested in the General Partner, and no Limited Partner or Assignee shall have any right to participate in or exercise control or management power over the business and affairs of the Partnership. The General Partner may not be removed by the Partners with or without cause, except with the consent of the General Partner. In addition to the powers now or hereafter granted to a general partner of a limited partnership under applicable law or which that are granted to the General Partner under any other provision of this Agreement, the General Partner, subject to the other provisions hereof including, without limitation, Section 7.37.03, shall have full power and authority to do all things and on such terms as it, in its sole discretion, may deem deemed necessary or appropriate desirable by it to conduct the business of the Partnership, to exercise all powers set forth in Section 2.5 3.02 hereof and to effectuate the purposes set forth in Section 2.43.01 hereof, including the followingincluding, without limitation:
(i) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money or selling assets to permit the Partnership to make distributions in such amounts as will permit the General Partner (so long as the General Partner desires to maintain or restore its qualification as a REIT) to avoid the payment of any income or excise tax under the Code and to make distributions to its stockholders sufficient to permit the General Partner to maintain or restore REIT qualification or otherwise to satisfy the REIT Requirements), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtednessindebtedness (including the securing of same by deed to secure debt, including indebtedness that is convertible into Partnership Securitiesmortgage, deed of trust or other lien or encumbrance on the Partnership’s assets) and the incurring of any other obligationsobligations that it deems necessary for the conduct of the activities of the Partnership;
(ii) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership, the registration of any class of securities of the Partnership under the Exchange Act and the listing of any debt securities of the Partnership on any exchange;
(iii) subject to Section 11.02 hereof, the acquisition, dispositionsale, mortgagelease, pledgetransfer, encumbranceexchange or other disposition of any, hypothecation all or exchange of any or substantially all of the assets of the Partnership (including, but not limited to, the exercise or grant of any conversion, option, privilege or subscription right or any other right available in connection with any assets at any time held by the Partnership) or the merger merger, consolidation, reorganization or other combination of the Partnership with or into another Person (the matters described in this clause (iii) being subject, however, to any prior approval that may be required by Section 7.3)entity;
(iv) the mortgage, pledge, encumbrance or hypothecation of any assets of the Partnership, the assignment of any assets of the Partnership in trust for creditors or on the promise of the assignee to pay the debts of the Partnership, the use of the assets of the Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms that it sees fit, including including, without limitation, the financing of the operations and activities of the General Partner, the Partnership or any of the Partnership’s Subsidiaries, the lending of funds to other Persons (including, without limitation, the Partnership’s Subsidiaries) and the repayment of obligations of the Partnership, its Subsidiaries and any other Person in which the Partnership has an equity investment, and the making of capital contributions to and equity investments in the Partnership’s Subsidiaries;
(v) the use of the assets of the Partnership (including, without limitation, cash on hand) for any purpose consistent with the terms of this Agreement and on any terms it sees fit, including, without limitation, the financing of the conduct of the operations of the General Partner, the Partnership Group; subject to Section 7.6(a)or any of the Partnership’s Subsidiaries, the lending of funds to other Persons (including other Group Members)including, without limitation, the General Partner and its Subsidiaries and the Partnership’s Subsidiaries) and the repayment or guarantee of obligations of the Partnership Group and its Subsidiaries and any other Person in which the Partnership has an equity investment and the making of capital contributions to its Subsidiaries;
(vi) the management, operation, leasing, landscaping, repair, alteration, demolition, replacement or improvement of any member Property, including, without limitation, any Contributed Property, or other asset of the Partnership Groupor any Subsidiary, whether pursuant to a Services Agreement or otherwise;
(vvii) the negotiation, execution and performance of any contracts, leases, conveyances or other instruments (including instruments that limit the liability of General Partner considers useful or necessary to the Partnership under contractual arrangements to all or particular assets conduct of the Partnership, with ’s operations or the other party to the contract to have no recourse against implementation of the General Partner or its assets other than its interest in the PartnershipPartner’s powers under this Agreement, even if same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case);
(vi) the distribution of Partnership cash;
(vii) the selection and dismissal of employees (including employees having titles such as “president,” “vice president,” “secretary” and “treasurer”) and agentscontracting with contractors, outside attorneysdevelopers, consultants, government authorities, accountants, consultants legal counsel, other professional advisors and contractors other agents (including the Transfer Agent) and the determination payment of their expenses and compensation and other terms out of employment or hiringthe Partnership’s assets;
(viii) the distribution of Partnership cash or other Partnership assets in accordance with this Agreement, the holding, management, investment and reinvestment of cash and other assets of the Partnership and the collection and receipt of revenues, rents and income of the Partnership;
(ix) the maintenance of such insurance (including, without limitation, directors and officers insurance) for the benefit of the Partnership Group and the Partners (including, without limitation, the General Partner) as it the General Partner deems necessary or appropriate, including, without limitation, (i) casualty, liability and other insurance on the Properties and (ii) liability insurance for the Indemnitees hereunder;
(ixx) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies companies, joint ventures or other relationships that the General Partner deems desirable (including including, without limitation, the acquisition of interests in, and the contributions of property to, any Group Member Subsidiary and any other Person in which it has an equity investment from time to time) subject ); provided, however, that as long as the General Partner desires to maintain or restore its qualification as a REIT, the restrictions set forth General Partner may not engage in Section 2.4any such formation, acquisition or contribution that would cause it to fail to qualify as a REIT;
(xxi) the filing of applications, communicating and otherwise dealing with any and all governmental agencies having jurisdiction over, or in any way affecting, the Partnership’s assets or any other aspect of the Partnership business;
(xii) the taking of any action necessary or appropriate to comply with all regulatory requirements applicable to the Partnership in respect of its business, including preparing or causing to be prepared all financial statements required under applicable regulations and contractual undertakings and all reports, filings and documents, if any, required under the Exchange Act, the Securities Act, or by National Securities Exchange requirements;
(xiii) the control of any matters affecting the rights and obligations of the Partnership, including the bringing settlement, compromise, submission to arbitration or any other form of dispute resolution, or abandonment, of any claim, cause of action, liability, debt or damages, due or owing to or from the Partnership, the commencement or defense of suits, legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, and defending the representation of actions at law the Partnership in all suits or in equity and otherwise engaging in the conduct legal proceedings, administrative proceedings, arbitrations or other forms of litigation and dispute resolution, the incurring of legal expense expense, and the settlement of claims and litigation;
(xi) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xiixiv) the undertaking of any action in connection with the Partnership’s direct or indirect investment in any Subsidiary or any other Person (including, without limitation, the contribution or loan of funds by the Partnership to such Persons);
(xv) except as otherwise specifically set forth in this Agreement, the determination of the fair market value of any Partnership property distributed in-kind using such reasonable method of valuation as it may adopt; provided, that such methods are otherwise consistent with the requirements of this Agreement;
(xvi) the enforcement of any rights against any Partner pursuant to representations, warranties, covenants and indemnities relating to such Partner’s contribution of property or assets to the Partnership;
(xvii) the exercise, directly or indirectly, through any attorney-in-fact acting under a general or limited power-of-attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(xviii) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(xix) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest, pursuant to contractual or other arrangements with such Person;
(xx) the making, execution and delivery of any and all deeds, leases, notes, deeds to secure Debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate in the judgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement;
(xxi) the issuance of additional Partnership Units, as appropriate and in the General Partner’s sole and absolute discretion, in connection with Capital Contributions by Additional Limited Partners and additional Capital Contributions by Partners pursuant to Article IV hereof;
(xxii) the selection and dismissal of General Partner Employees (including, without limitation, employees having titles or offices such as president, vice president, secretary and treasurer), and agents, outside attorneys, accountants, consultants and contractors of the Partnership or the General Partner, the determination of their compensation and other terms of employment or hiring and the delegation to any such General Partner Employee the authority to conduct the business of the Partnership in accordance with the terms of this Agreement;
(xxiii) the distribution of cash to acquire Partnership Units held by a Limited Partner in connection with a Limited Partner’s exercise of its Redemption right under Section 8.06 hereof;
(xxiv) maintaining, or causing to be maintained, the books and records of the Partnership or the Transfer Agent to reflect accurately at all times the Capital Contributions and Percentage Interests of the Partners as the same are adjusted from time to time to the extent necessary to reflect redemptions, Capital Contributions, the number of Partnership Units (including any issuance thereof), the admission of any Additional Limited Partner or any Substituted Limited Partner or otherwise;
(xxv) the determination regarding whether a payment to a Partner who exercises its Redemption Right under Section 8.06 that is assumed by the General Partner will be paid in the form of the Cash Amount or the REIT Shares Amount, except as such determination may be limited by Section 8.06.
(xxvi) the collection and receipt of revenues and income of the Partnership;
(xxvii) the registration of any class of securities of the Partnership under the Securities Act or the Exchange Act;
(xxviii) the entering into of listing agreements with any National Securities Exchange and the listing of any securities of the Partnership on any such exchange;
(xxix) the delisting of some or all of the Limited Partner Interests Partnership Units from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.8)National Securities Exchange;
(xiiixxx) unless restricted or prohibited by an election to dissolve the Partnership pursuant to Section 5.7, the purchase, sale or other acquisition or disposition of Partnership Securities, or the issuance of additional options, rights, warrants and appreciation rights relating to Partnership Securities13.01(d) hereof; and
(xivxxxi) the undertaking taking of any action in connection with necessary or appropriate to enable the Partnership’s participation in any Group Member General Partner to qualify as a member REIT (so long as the General Partner desires to maintain or partnerrestore its qualification as a REIT).
(b) Notwithstanding any other provision of this Agreement, the Operating Company Agreement, the Delaware Act or any applicable law, rule or regulation, each Each of the Limited Partners and the Assignees and each other Person who may acquire an interest agrees that, except as provided in Partnership Securities hereby (i) approvesSection 7.03 hereof, ratifies and confirms the execution, delivery and performance by the parties thereto of the Operating Company Agreement, any other limited liability company or partnership agreement of any other Group Member, the Underwriting Agreement, the Omnibus Agreement, the Contribution Agreement and the other agreements described in or filed as exhibits to the Registration Statement that are related to the transactions contemplated by the Registration Statement; (ii) agrees that the General Partner (on its own or through any officer of the Partnership) is authorized to execute, deliver and perform the above-mentioned agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership without any further act, approval or vote of the Partners Partners, notwithstanding any other provision of this Agreement, the Act or any applicable law, rule or regulation and, in the absence of any specific corporate action on the part of the General Partner to the contrary, the taking of any action or the Assignees execution of any such document or writing by an officer of the other Persons who may acquire an interest General Partner, in Partnership Securities; the name and on behalf of the General Partner, in its capacity as the general partner of the Partnership, shall conclusively evidence (iii1) agrees that the execution, delivery or performance approval thereof by the General Partner, any Group Member in its capacity as the general partner of the Partnership, (2) the General Partner’s determination that such action, document or any Affiliate writing is necessary or desirable to conduct the business and affairs of any the Partnership, exercise the powers of them, of this Agreement or any agreement authorized or permitted the Partnership under this Agreement (including and the exercise Act or effectuate the purposes of the Partnership, or any other determination by the General Partner required by this Agreement in connection with the taking of such action or any Affiliate execution of such document or writing, and (3) the authority of such officer with respect thereto.
(c) At all times from and after the date hereof, the General Partner may cause the Partnership to obtain and maintain (i) casualty, liability and other insurance on the Properties and (ii) liability insurance for the Indemnitees hereunder.
(d) At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain working capital and other reserves in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
(e) In exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner (including the General Partner) of any action taken (or not taken) by it. Except as may be provided in a separate written agreement between the rights accorded pursuant to Article XV)Partnership and the Limited Partners, the General Partner and the Partnership shall not constitute have liability to a breach Limited Partner under any circumstances as a result of a tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner of any duty pursuant to its authority under this Agreement provided, that the General Partner may owe the Partnership or the Limited Partners or any other Persons has acted in good faith and pursuant to its authority under this Agreement (or any other agreements) or of any duty stated or implied by law or equityAgreement.
Appears in 2 contracts
Samples: Limited Partnership Agreement (Empire State Realty OP, L.P.), Limited Partnership Agreement (Empire State Realty Trust, Inc.)
Management. (a) The Managing General Partner of the Partnership generally shall conduct, direct and manage all activities of the PartnershipPartnership generally, and the Managing General Partner of each Series shall conduct, direct and manage all activities of the Series for which it serves as Managing General Partner. Except as otherwise expressly provided in this Agreement, (i) all management powers over the business and affairs of the Partnership generally shall be exclusively vested in the Managing General PartnerPartner of the Partnership generally, and no Limited Partner or Assignee other General Partner shall have any management power over the business and affairs of (or authority to bind) the PartnershipPartnership generally and (ii) all management powers over the business and affairs of each Series shall be exclusively vested in the Managing General Partner of such Series, and no Limited Partner or other General Partner shall have any management power over the business and affairs of (or authority to bind) such Series. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or which that are granted to the a Managing General Partner under any other provision of this Agreement, the each Managing General Partner, subject to any approval required by Section 7.37.3 or any other provision of this Agreement, shall have full power and authority to do all things and on such terms as it, in its sole discretion, may deem it determines to be necessary or appropriate to conduct the business of the PartnershipPartnership generally or the applicable Series, as the case may be, to exercise all powers set forth in Section 2.5 and to effectuate the purposes set forth in Section 2.4, including the following:
(i) the making of any expenditures, the lending or borrowing of money, the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtedness, including indebtedness that is convertible into Partnership Securities, and the incurring of any other obligations;
(ii) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the PartnershipPartnership and each Series (other than in connection with the matters set forth in Section 9.3);
(iii) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the Partnership applicable Series or the merger or other combination of the Partnership with or into another Person (the matters described in this clause (iii) being subject, however, to any prior approval that may be required by Section 7.3)Person;
(iv) the use of the assets of the Partnership applicable Series (including cash on hand) for any purpose consistent with the terms of this Agreement, including the financing of the conduct of the operations of the Partnership Group; subject to Section 7.6(a), the lending of funds to other Persons (including other Group Members), the repayment or guarantee of obligations of the Partnership Group and the making of capital contributions to any member of the Partnership Group;
(v) the negotiation, execution and performance of any contracts, conveyances or other instruments (including instruments that limit the liability on behalf of the Partnership under contractual arrangements to all generally or particular assets of the Partnership, with the other party to the contract to have no recourse against the General Partner or its assets other than its interest in the Partnership, even if same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case)applicable Series;
(vi) the distribution of Partnership cashcash or property of the applicable Series;
(vii) the selection and dismissal of employees (including employees having titles such as “president,” “vice president,” “secretary” and “treasurer”) and agents, outside attorneys, accountants, consultants and contractors and the determination of their compensation and other terms of employment or hiring;
(viii) the maintenance of such separate or joint insurance policies for the benefit of the Partnership Group and the Partnership, any Series, any Partners as it deems necessary or appropriateany Indemnitees;
(ixviii) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies or other relationships (including the acquisition of interests in, and the contributions of property to, any Group Member from time to time) subject to the restrictions set forth in Section 2.4;
(xix) the control of any matters affecting the rights and obligations of the PartnershipPartnership or the applicable Series, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigation litigation, arbitration or mediation and the incurring of legal expense and the settlement of claims and litigation;; and
(xix) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.8);
(xiii) unless restricted or prohibited by Section 5.7, the purchase, sale or other acquisition or disposition of Partnership Securities, or the issuance of additional options, rights, warrants and appreciation rights relating to Partnership Securities; and
(xiv) the undertaking of any action in connection with the Partnership’s participation in any Group Member as a member or partner.
(b) Notwithstanding any other provision of this Agreement, the Operating Company Agreement, the Delaware Act or any applicable law, rule or regulation, each of the Partners and the Assignees and each other Person who may acquire an interest in Partnership Securities hereby (i) approves, ratifies and confirms the execution, delivery and performance by the parties thereto of the Operating Company Agreement, any other limited liability company or partnership agreement of any other Group Member, the Underwriting Agreement, the Omnibus Agreement, the Contribution Agreement and the other agreements described in or filed as exhibits to the Registration Statement that are related to the transactions contemplated by the Registration Statement; (ii) agrees that the General Partner (on its own or through any officer of the Partnership) is authorized to execute, deliver and perform the agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership without any further act, approval or vote of the Partners or the Assignees or the other Persons who may acquire an interest in Partnership Securities; and (iii) agrees that the execution, delivery or performance by the General Partner, any Group Member or any Affiliate of any of them, of this Agreement or any agreement authorized or permitted under this Agreement (including the exercise by the General Partner or any Affiliate of the General Partner of the rights accorded pursuant to Article XV), shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement (or any other agreements) or of any duty stated or implied by law or equity.
Appears in 2 contracts
Samples: Contribution Agreement (Enbridge Energy Partners Lp), Limited Partnership Agreement (Enbridge Energy Partners Lp)
Management. (a) The General Partner shall conduct, direct and manage all activities of the Partnership. Except as otherwise expressly provided in this Agreement, all management powers over the business and affairs of the Partnership are and shall be exclusively vested in the General Partner, and no Limited Partner or Assignee shall have any right to participate in or exercise control or management power over the business and affairs of the Partnership. The General Partner may not be removed by the Limited Partners, except with the consent of the General Partner. In addition to the powers now or hereafter granted to a general partner of a limited partnership under applicable law or which that are granted to the General Partner under any other provision of this Agreement, the General Partner, subject to the other provisions hereof including Section 7.37.03, shall have full power and authority to do all things and on such terms as it, in its sole discretion, may deem deemed necessary or appropriate desirable by it to conduct the business of the Partnership, to exercise all powers set forth in Section 2.5 3.02 hereof and to effectuate the purposes set forth in Section 2.43.01 hereof, including the followingincluding, without limitation:
(i) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money or selling assets to permit the Partnership to make distributions to its Partners in such amounts as will permit the General Partner (so long as the General Partner desires to maintain or restore its qualification as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Code Section 4981) and to make distributions to its stockholders sufficient to permit the General Partner to maintain or restore REIT qualification or otherwise to satisfy the REIT Requirements), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtednessindebtedness (including the securing of same by deed to secure debt, including indebtedness that is convertible into Partnership Securitiesmortgage, deed of trust or other lien or encumbrance on the Partnership’s assets) and the incurring of any other obligationsobligations that it deems necessary for the conduct of the activities of the Partnership;
(ii) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership, the registration of any class of securities of the Partnership under the Exchange Act and the listing of any debt securities of the Partnership on any exchange;
(iii) subject to Section 11.02 hereof, the acquisition, dispositionsale, mortgagelease, pledgetransfer, encumbranceexchange or other disposition of any, hypothecation all or exchange of any or substantially all of the assets of the Partnership (including, but not limited to, the exercise or grant of any conversion, option, privilege or subscription right or any other right available in connection with any assets at any time held by the Partnership) or the merger merger, consolidation, reorganization or other combination of the Partnership with or into another Person (the matters described in this clause (iii) being subject, however, to any prior approval that may be required by Section 7.3)entity;
(iv) the mortgage, pledge, encumbrance or hypothecation of any assets of the Partnership, the use of the assets of the Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms that it sees fit, including including, without limitation, the financing of the operations and activities of the General Partner, the Partnership or any of the Partnership’s Subsidiaries, the lending of funds to other Persons (including, without limitation, the Partnership’s Subsidiaries) and the repayment of obligations of the Partnership, its Subsidiaries and any other Person in which the Partnership has an equity investment, and the making of capital contributions to and equity investments in the Partnership’s Subsidiaries;
(v) the use of the assets of the Partnership (including, without limitation, cash on hand) for any purpose consistent with the terms of this Agreement and on any terms it sees fit, including, without limitation, the financing of the conduct of the operations of the General Partner, the Partnership Group; subject to Section 7.6(a)or any of the Partnership’s Subsidiaries, the lending of funds to other Persons (including other Group Members)including, without limitation, the General Partner and its Subsidiaries and the Partnership’s Subsidiaries) and the repayment or guarantee of obligations of the Partnership Group and its Subsidiaries and any other Person in which the Partnership has an equity investment and the making of capital contributions to its Subsidiaries;
(vi) the management, operation, leasing, landscaping, repair, alteration, demolition, replacement or improvement of any member Property, including, without limitation, any Contributed Property, or other asset of the Partnership Groupor any Subsidiary, whether pursuant to a Services Agreement or otherwise;
(vvii) the negotiation, execution and performance of any contracts, leases, conveyances or other instruments (including instruments that limit the liability of General Partner considers useful or necessary to the Partnership under contractual arrangements to all or particular assets conduct of the Partnership, with ’s operations or the other party to the contract to have no recourse against implementation of the General Partner or its assets Partner’s powers under this Agreement, including contracting with contractors, developers, consultants, accountants, legal counsel, other than its interest in professional advisors and other agents and the payment of their expenses and compensation out of the Partnership, even if same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case)’s assets;
(viviii) the distribution of Partnership cashcash or other Partnership assets in accordance with this Agreement, the holding, management, investment and reinvestment of cash and other assets of the Partnership and the collection and receipt of revenues, rents and income of the Partnership;
(vii) the selection and dismissal of employees (including employees having titles such as “president,” “vice president,” “secretary” and “treasurer”) and agents, outside attorneys, accountants, consultants and contractors and the determination of their compensation and other terms of employment or hiring;
(viiiix) the maintenance of such insurance for the benefit of the Partnership Group and the Partners as it the General Partner deems necessary or appropriate, including, without limitation, (i) casualty, liability and other insurance on the Properties and (ii) liability insurance for the Indemnitees hereunder;
(ixx) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies companies, joint ventures or other relationships that the General Partner deems desirable (including including, without limitation, the acquisition of interests in, and the contributions of property to, any Group Member Subsidiary and any other Person in which it has an equity investment from time to time); provided, however, that as long as the General Partner has determined to continue to qualify as a REIT, the General Partner may not engage in any such formation, acquisition or contribution that would cause it to fail to qualify as a REIT within the meaning of Code Section 856(a) subject (so long as the General Partner desires to the restrictions set forth in Section 2.4maintain its qualification as a REIT);
(xxi) the filing of applications, communicating and otherwise dealing with any and all governmental agencies having jurisdiction over, or in any way affecting, the Partnership’s assets or any other aspect of the Partnership business;
(xii) the control of any matters affecting the rights and obligations of the Partnership, including the bringing settlement, compromise, submission to arbitration or any other form of dispute resolution, or abandonment, of any claim, cause of action, liability, debt or damages, due or owing to or from the Partnership, the commencement or defense of suits, legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, and defending the representation of actions at law the Partnership in all suits or in equity and otherwise engaging in the conduct legal proceedings, administrative proceedings, arbitrations or other forms of litigation and dispute resolution, the incurring of legal expense expense, and the settlement of claims and litigation;
(xi) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.8);
(xiii) unless restricted or prohibited by Section 5.7, the purchase, sale or other acquisition or disposition of Partnership Securities, or the issuance of additional options, rights, warrants and appreciation rights relating to Partnership Securities; and
(xiv) the undertaking of any action in connection with the Partnership’s participation direct or indirect investment in any Group Member Subsidiary or any other Person (including, without limitation, the contribution or loan of funds by the Partnership to such Persons);
(xiv) except as otherwise specifically set forth in this Agreement, the determination of the fair market value of any Partnership property distributed in-kind using such reasonable method of valuation as it may adopt; provided, that such methods are otherwise consistent with the requirements of this Agreement;
(xv) the enforcement of any rights against any Partner pursuant to representations, warranties, covenants and indemnities relating to such Partner’s contribution of property or assets to the Partnership;
(xvi) the exercise, directly or indirectly, through any attorney-in-fact acting under a general or limited power-of-attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(xvii) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(xviii) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest, pursuant to contractual or other arrangements with such Person;
(xix) the making, execution and delivery of any and all deeds, leases, notes, deeds to secure Debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate in the judgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement;
(xx) the issuance of additional Partnership Units, as appropriate and in the General Partner’s sole and absolute discretion, in connection with Capital Contributions by Additional Limited Partners and additional Capital Contributions by Partners pursuant to Article IV hereof;
(xxi) the selection and dismissal of employees (including, without limitation, employees having titles or offices such as president, vice president, secretary and treasurer), and agents, outside attorneys, accountants, consultants and contractors of the Partnership or the General Partner, the determination of their compensation and other terms of employment or hiring and the delegation to any such employees the authority to conduct the business of the Partnership in accordance with the terms of this Agreement;
(xxii) the distribution of cash to acquire Partnership Units held by a Limited Partner in connection with a Limited Partner’s exercise of its Redemption right under Section 8.06 hereof;
(xxiii) the amendment and restatement of Exhibit A hereto to reflect accurately at all times the Capital Contributions and Percentage Interests of the Partners as the same are adjusted from time to time to the extent necessary to reflect redemptions, Capital Contributions, the issuance of Partnership Units, the admission of any Additional Limited Partner or any Substituted Limited Partner or otherwise, which amendment and restatement, notwithstanding anything in this Agreement to the contrary, shall not be deemed an amendment to this Agreement, as long as the matter or event being reflected in Exhibit A hereto otherwise is authorized by this Agreement;
(xxiv) the determination regarding whether a payment to a Partner who exercises its Redemption Right under Section 8.06 that is assumed by the General Partner will be paid in the form of the Cash Amount or the REIT Shares Amount, except as such determination may be limited by Section 8.06;
(xxv) the collection and receipt of revenues and income of the Partnership;
(xxvi) the registration of any class of securities of the Partnership under the Securities Act or the Exchange Act, and the listing of any debt securities of the Partnership on any exchange;
(xxvii) an election to dissolve the Partnership pursuant to Section 13.01(b) hereof; and
(xxviii) the taking of any action necessary or appropriate to enable the General Partner to qualify as a member or partnerREIT (so long as the General Partner desires to maintain its qualification as a REIT).
(b) Notwithstanding any other provision of this Agreement, the Operating Company Agreement, the Delaware Act or any applicable law, rule or regulation, each Each of the Limited Partners and the Assignees and each other Person who may acquire an interest agrees that, except as provided in Partnership Securities hereby (i) approvesSection 7.03 hereof, ratifies and confirms the execution, delivery and performance by the parties thereto of the Operating Company Agreement, any other limited liability company or partnership agreement of any other Group Member, the Underwriting Agreement, the Omnibus Agreement, the Contribution Agreement and the other agreements described in or filed as exhibits to the Registration Statement that are related to the transactions contemplated by the Registration Statement; (ii) agrees that the General Partner (on its own or through any officer of the Partnership) is authorized to execute, deliver and perform the above- mentioned agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership without any further act, approval or vote of the Partners Partners, notwithstanding any other provision of this Agreement, the Act or any applicable law, rule or regulation.
(c) At all times from and after the Assignees or Effective Date, the General Partner may cause the Partnership to establish and maintain working capital and other Persons who may acquire an interest reserves in Partnership Securities; and (iii) agrees that the execution, delivery or performance by such amounts as the General Partner, any Group Member or any Affiliate of any of themin its sole and absolute discretion, of this Agreement or any agreement authorized or permitted deems appropriate and reasonable from time to time.
(d) In exercising its authority under this Agreement Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner (including the exercise General Partner) of any action taken (or not taken) by it. Except as may be provided in a separate written agreement between the Partnership and the Limited Partners, the General Partner and the Partnership shall not have liability to a Limited Partner under any circumstances as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner or any Affiliate of the General Partner of the rights accorded pursuant to Article XV)its authority under this Agreement provided, shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons has acted in good faith and pursuant to its authority under this Agreement (or any other agreements) or of any duty stated or implied by law or equityAgreement.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (ZAIS Financial Corp.), Merger Agreement (ZAIS Financial Corp.)
Management. (a) The General Partner shall conduct, direct and manage all activities of the Partnership. Except as otherwise expressly provided in this Agreement, all management powers over the business and affairs of the Partnership are and shall be exclusively vested in the General Partner, and no Limited Partner or Assignee shall have any right to participate in or exercise control or management power over the business and affairs of the Partnership. The General Partner may not be removed by the Partners with or without cause, except with the consent of the General Partner. In addition to the powers now or hereafter granted to a general partner of a limited partnership under applicable law or which that are granted to the General Partner under any other provision of this Agreement, the General Partner, subject to the other provisions hereof including Section 7.37.03, shall have full power and authority to do all things and on such terms as it, in its sole discretion, may deem deemed necessary or appropriate desirable by it to conduct the business of the Partnership, to exercise all powers set forth in Section 2.5 3.02 hereof and to effectuate the purposes set forth in Section 2.43.01 hereof, including the followingincluding, without limitation:
(i) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money or selling assets to permit the Partnership to make distributions to its Partners in such amounts as will permit the General Partner (so long as the General Partner desires to maintain or restore its qualification as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Code Section 4981) and to make distributions to its stockholders sufficient to permit the General Partner to maintain or restore REIT qualification or otherwise to satisfy the REIT Requirements), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtednessindebtedness (including the securing of same by deed to secure debt, including indebtedness that is convertible into Partnership Securitiesmortgage, deed of trust or other lien or encumbrance on the Partnership’s assets) and the incurring of any other obligationsobligations that it deems necessary for the conduct of the activities of the Partnership;
(ii) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership, the registration of any class of securities of the Partnership under the Exchange Act and the listing of any debt securities of the Partnership on any exchange;
(iii) subject to Section 11.02 hereof, the acquisition, dispositionsale, mortgagelease, pledgetransfer, encumbranceexchange or other disposition of any, hypothecation all or exchange of any or substantially all of the assets of the Partnership (including, but not limited to, the exercise or grant of any conversion, option, privilege or subscription right or any other right available in connection with any assets at any time held by the Partnership) or the merger merger, consolidation, reorganization or other combination of the Partnership with or into another Person (the matters described in this clause (iii) being subject, however, to any prior approval that may be required by Section 7.3)entity;
(iv) the mortgage, pledge, encumbrance or hypothecation of any assets of the Partnership, the use of the assets of the Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms that it sees fit, including including, without limitation, the financing of the operations and activities of the General Partner, the Partnership or any of the Partnership’s Subsidiaries, the lending of funds to other Persons (including, without limitation, the Partnership’s Subsidiaries) and the repayment of obligations of the Partnership, its Subsidiaries and any other Person in which the Partnership has an equity investment, and the making of capital contributions to and equity investments in the Partnership’s Subsidiaries;
(v) the use of the assets of the Partnership (including, without limitation, cash on hand) for any purpose consistent with the terms of this Agreement and on any terms it sees fit, including, without limitation, the financing of the conduct of the operations of the General Partner, the Partnership Group; subject to Section 7.6(a)or any of the Partnership’s Subsidiaries, the lending of funds to other Persons (including other Group Members)including, without limitation, the General Partner and its Subsidiaries and the Partnership’s Subsidiaries) and the repayment or guarantee of obligations of the Partnership Group and its Subsidiaries and any other Person in which the Partnership has an equity investment and the making of capital contributions to its Subsidiaries;
(vi) the management, operation, leasing, landscaping, repair, alteration, demolition, replacement or improvement of any member Property, including, without limitation, any Contributed Property, or other asset of the Partnership Groupor any Subsidiary, whether pursuant to a Services Agreement or otherwise;
(vvii) the negotiation, execution and performance of any contracts, leases, conveyances or other instruments (including instruments that limit the liability of General Partner considers useful or necessary to the Partnership under contractual arrangements to all or particular assets conduct of the Partnership, with ’s operations or the other party to the contract to have no recourse against implementation of the General Partner or its assets Partner’s powers under this Agreement, including contracting with contractors, developers, consultants, accountants, legal counsel, other than its interest in professional advisors and other agents and the payment of their expenses and compensation out of the Partnership, even if same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case)’s assets;
(viviii) the distribution of Partnership cashcash or other Partnership assets in accordance with this Agreement, the holding, management, investment and reinvestment of cash and other assets of the Partnership and the collection and receipt of revenues, rents and income of the Partnership;
(vii) the selection and dismissal of employees (including employees having titles such as “president,” “vice president,” “secretary” and “treasurer”) and agents, outside attorneys, accountants, consultants and contractors and the determination of their compensation and other terms of employment or hiring;
(viiiix) the maintenance of such insurance for the benefit of the Partnership Group and the Partners as it the General Partner deems necessary or appropriate, including, without limitation, (i) casualty, liability and other insurance on the Properties and (ii) liability insurance for the Indemnitees hereunder;
(ixx) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies companies, joint ventures or other relationships that the General Partner deems desirable (including including, without limitation, the acquisition of interests in, and the contributions of property to, any Group Member Subsidiary and any other Person in which it has an equity investment from time to time); provided, however, that as long as the General Partner has determined to continue to qualify as a REIT, the General Partner may not engage in any such formation, acquisition or contribution that would cause it to fail to qualify as a REIT within the meaning of Code Section 856(a) subject (so long as the General Partner desires to the restrictions set forth in Section 2.4maintain its qualification as a REIT);
(xxi) the filing of applications, communicating and otherwise dealing with any and all governmental agencies having jurisdiction over, or in any way affecting, the Partnership’s assets or any other aspect of the Partnership business;
(xii) the control of any matters affecting the rights and obligations of the Partnership, including the bringing settlement, compromise, submission to arbitration or any other form of dispute resolution, or abandonment, of any claim, cause of action, liability, debt or damages, due or owing to or from the Partnership, the commencement or defense of suits, legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, and defending the representation of actions at law the Partnership in all suits or in equity and otherwise engaging in the conduct legal proceedings, administrative proceedings, arbitrations or other forms of litigation and dispute resolution, the incurring of legal expense expense, and the settlement of claims and litigation;
(xi) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.8);
(xiii) unless restricted or prohibited by Section 5.7, the purchase, sale or other acquisition or disposition of Partnership Securities, or the issuance of additional options, rights, warrants and appreciation rights relating to Partnership Securities; and
(xiv) the undertaking of any action in connection with the Partnership’s participation direct or indirect investment in any Group Member Subsidiary or any other Person (including, without limitation, the contribution or loan of funds by the Partnership to such Persons);
(xiv) except as otherwise specifically set forth in this Agreement, the determination of the fair market value of any Partnership property distributed in-kind using such reasonable method of valuation as it may adopt; provided, that such methods are otherwise consistent with the requirements of this Agreement;
(xv) the enforcement of any rights against any Partner pursuant to representations, warranties, covenants and indemnities relating to such Partner’s contribution of property or assets to the Partnership;
(xvi) the exercise, directly or indirectly, through any attorney-in-fact acting under a general or limited power-of-attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(xvii) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(xviii) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest, pursuant to contractual or other arrangements with such Person;
(xix) the making, execution and delivery of any and all deeds, leases, notes, deeds to secure Debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate in the judgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement;
(xx) the issuance of additional Partnership Units, as appropriate and in the General Partner’s sole and absolute discretion, in connection with Capital Contributions by Additional Limited Partners and additional Capital Contributions by Partners pursuant to Article IV hereof;
(xxi) the selection and dismissal of General Partner Employees (including, without limitation, employees having titles or offices such as president, vice president, secretary and treasurer), and agents, outside attorneys, accountants, consultants and contractors of the Partnership or the General Partner, the determination of their compensation and other terms of employment or hiring and the delegation to any such General Partner Employee the authority to conduct the business of the Partnership in accordance with the terms of this Agreement;
(xxii) the distribution of cash to acquire Partnership Units held by a Limited Partner in connection with a Limited Partner’s exercise of its Redemption right under Section 8.06 hereof;
(xxiii) the amendment and restatement of Exhibit A hereto to reflect accurately at all times the Capital Contributions and Percentage Interests of the Partners as the same are adjusted from time to time to the extent necessary to reflect redemptions, Capital Contributions, the issuance of Partnership Units, the admission of any Additional Limited Partner or any Substituted Limited Partner or otherwise, which amendment and restatement, notwithstanding anything in this Agreement to the contrary, shall not be deemed an amendment to this Agreement, as long as the matter or event being reflected in Exhibit A hereto otherwise is authorized by this Agreement;
(xxiv) the determination regarding whether a payment to a Partner who exercises its Redemption Right under Section 8.06 that is assumed by the General Partner will be paid in the form of the Cash Amount or the REIT Shares Amount, except as such determination may be limited by Section 8.06.
(xxv) the collection and receipt of revenues and income of the Partnership;
(xxvi) the registration of any class of securities of the Partnership under the Securities Act or the Exchange Act, and the listing of any debt securities of the Partnership on any exchange.
(xxvii) an election to dissolve the Partnership pursuant to Section 13.01(d) hereof; and
(xxviii) the taking of any action necessary or appropriate to enable the General Partner to qualify as a member or partnerREIT (so long as the General Partner desires to maintain its qualification as a REIT).
(b) Notwithstanding any other provision of this Agreement, the Operating Company Agreement, the Delaware Act or any applicable law, rule or regulation, each Each of the Limited Partners and the Assignees and each other Person who may acquire an interest agrees that, except as provided in Partnership Securities hereby (i) approvesSection 7.03 hereof, ratifies and confirms the execution, delivery and performance by the parties thereto of the Operating Company Agreement, any other limited liability company or partnership agreement of any other Group Member, the Underwriting Agreement, the Omnibus Agreement, the Contribution Agreement and the other agreements described in or filed as exhibits to the Registration Statement that are related to the transactions contemplated by the Registration Statement; (ii) agrees that the General Partner (on its own or through any officer of the Partnership) is authorized to execute, deliver and perform the above-mentioned agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership without any further act, approval or vote of the Partners Partners, notwithstanding any other provision of this Agreement, the Act or any applicable law, rule or regulation.
(c) At all times from and after the Assignees or date hereof, the General Partner may cause the Partnership to establish and maintain working capital and other Persons who may acquire an interest reserves in Partnership Securities; and (iii) agrees that the execution, delivery or performance by such amounts as the General Partner, any Group Member or any Affiliate of any of themin its sole and absolute discretion, of this Agreement or any agreement authorized or permitted deems appropriate and reasonable from time to time.
(d) In exercising its authority under this Agreement Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner (including the exercise General Partner) of any action taken (or not taken) by it. Except as may be provided in a separate written agreement between the Partnership and the Limited Partners, the General Partner and the Partnership shall not have liability to a Limited Partner under any circumstances as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner or any Affiliate of the General Partner of the rights accorded pursuant to Article XV)its authority under this Agreement provided, shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons has acted in good faith and pursuant to its authority under this Agreement (or any other agreements) or of any duty stated or implied by law or equityAgreement.
Appears in 2 contracts
Samples: Limited Partnership Agreement (DLC Realty Trust, Inc.), Limited Partnership Agreement (DLC Realty Trust, Inc.)
Management. (a) The General Partner shall conduct, direct and manage all activities of the Partnership. Except as otherwise expressly provided in this Agreement, all management powers over the business and affairs of the Partnership are and shall be exclusively vested in the General Partner, and no Limited Partner or Assignee shall have any right to participate in or exercise control or management power over the business and affairs of the Partnership. The General Partner may not be removed by the Limited Partners with or without cause, except with the consent of the General Partner. In addition to the powers now or hereafter granted to a general partner of a limited partnership under applicable law the Act or which that are granted to the General Partner under any other provision of this Agreement, the General Partner, subject to the other provisions hereof including, without limitation, Section 7.315.15, shall have full power and authority to do all things and on such terms as it, in its sole discretion, may deem deemed necessary or appropriate desirable by it to conduct the business of the Partnership, to exercise all powers set forth in Section 2.5 3.02 hereof and to effectuate the purposes set forth in Section 2.43.01 hereof, including the followingincluding, without limitation:
(i) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money or selling assets to permit the Partnership to make distributions in such amounts as will permit the Parent (so long as the Parent desires to qualify as a REIT) to avoid the payment of any income or excise tax under the Code and to make distributions to its stockholders sufficient to permit the Parent to qualify as a REIT or otherwise to satisfy the REIT Requirements), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtednessindebtedness (including the securing of same by deed to secure debt, including indebtedness that is convertible into Partnership Securitiesmortgage, deed of trust or other lien or encumbrance on the Partnership’s assets) and the incurring of any other obligationsobligations that it deems necessary for the conduct of the activities of the Partnership;
(ii) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership;
(iii) subject to Section 11.02 hereof, the acquisition, dispositionsale, mortgagelease, pledgetransfer, encumbranceexchange or other disposition of any, hypothecation all or exchange of any or substantially all of the assets of the Partnership (including, but not limited to, the exercise or grant of any conversion, option, privilege or subscription right or any other right available in connection with any assets at any time held by the Partnership) or the merger merger, consolidation, reorganization or other combination of the Partnership with or into another Person (the matters described in this clause (iii) being subject, however, to any prior approval that may be required by Section 7.3)entity;
(iv) the mortgage, pledge, encumbrance or hypothecation of any assets of the Partnership, the assignment of any assets of the Partnership in trust for creditors or on the promise of the assignee to pay the debts of the Partnership, the use of the assets of the Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms that it sees fit, including including, without limitation, the financing of the operations and activities of the General Partner, the Parent, the Partnership or any of the Partnership’s Subsidiaries, the lending of funds to other Persons (including, without limitation, the Partnership’s Subsidiaries) and the repayment of obligations of the Partnership, its Subsidiaries and any other Person in which the Partnership has an equity investment, and the making of capital contributions to and equity investments in the Partnership’s Subsidiaries;
(v) the use of the assets of the Partnership (including, without limitation, cash on hand) for any purpose consistent with the terms of this Agreement and on any terms it sees fit, including, without limitation, the financing of the conduct of the operations of the Parent, the General Partner, the Partnership Group; subject to Section 7.6(a)or any of the Partnership’s Subsidiaries, the lending of funds to other Persons (including other Group Members)including, without limitation, the Parent, the General Partner and its Subsidiaries and the Partnership’s Subsidiaries) and the repayment or guarantee of obligations of the Partnership Group and its Subsidiaries and any other Person in which the Partnership has an equity investment and the making of capital contributions to its Subsidiaries;
(vi) the management, operation, leasing, maintenance, repair, alteration, demolition, replacement or improvement of any member Property, including, without limitation, any Contributed Property, or other asset of the Partnership Groupor any Subsidiary, whether pursuant to a Services Agreement or otherwise;
(vvii) the negotiation, execution and performance of any contracts, leases, conveyances or other instruments (including instruments that limit the liability of General Partner considers useful or necessary to the Partnership under contractual arrangements to all or particular assets conduct of the Partnership, with ’s operations or the other party to the contract to have no recourse against implementation of the General Partner or its assets other than its interest in the PartnershipPartner’s powers under this Agreement, even if same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case);
(vi) the distribution of Partnership cash;
(vii) the selection and dismissal of employees (including employees having titles such as “president,” “vice president,” “secretary” and “treasurer”) and agentscontracting with contractors, outside attorneysdevelopers, consultants, government authorities, accountants, consultants legal counsel, other professional advisors and contractors other agents (including the Transfer Agent) and the determination payment of their expenses and compensation and other terms out of employment or hiringthe Partnership’s assets;
(viii) the distribution of Partnership cash or other Partnership assets in accordance with this Agreement, the holding, management, investment and reinvestment of cash and other assets of the Partnership and the collection and receipt of revenues, rents and income of the Partnership;
(ix) the maintenance of such insurance (including, without limitation, directors and officers insurance) for the benefit of the Partnership Group and the Partners (including, without limitation, the Parent and the General Partner) as it the General Partner deems necessary or appropriate, including, without limitation, (i) casualty, liability and other insurance on the Properties and (ii) liability insurance for the Indemnitees hereunder;
(ixx) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies companies, joint ventures or other relationships that the General Partner deems desirable (including including, without limitation, the acquisition of interests in, and the contributions of property to, any Group Member Subsidiary and any other Person in which it has an equity investment from time to time) subject ); provided, however, that as long as the Parent desires to qualify as a REIT, the restrictions set forth General Partner may not engage in Section 2.4any such formation, acquisition or contribution that would cause the Parent not to qualify as a REIT;
(xxi) the filing of applications, communicating and otherwise dealing with any and all governmental agencies having jurisdiction over, or in any way affecting, the Partnership’s assets or any other aspect of the Partnership business;
(xii) the control of any matters affecting the rights and obligations of the Partnership, including the bringing settlement, compromise, submission to arbitration or any other form of dispute resolution, or abandonment, of any claim, cause of action, liability, debt or damages, due or owing to or from the Partnership, the commencement or defense of suits, legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, and defending the representation of actions at law the Partnership in all suits or in equity and otherwise engaging in the conduct legal proceedings, administrative proceedings, arbitrations or other forms of litigation and dispute resolution, the incurring of legal expense expense, and the settlement of claims and litigation;
(xi) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.8);
(xiii) unless restricted or prohibited by Section 5.7, the purchase, sale or other acquisition or disposition of Partnership Securities, or the issuance of additional options, rights, warrants and appreciation rights relating to Partnership Securities; and
(xiv) the undertaking of any action in connection with the Partnership’s participation direct or indirect investment in any Group Member Subsidiary or any other Person (including, without limitation, the contribution or loan of funds by the Partnership to such Persons);
(xiv) except as otherwise specifically set forth in this Agreement, the determination of the fair market value of any Partnership property distributed in-kind using such reasonable method of valuation as it may adopt; provided, that such methods are otherwise consistent with the requirements of this Agreement;
(xv) the enforcement of any rights against any Partner pursuant to representations, warranties, covenants and indemnities relating to such Partner’s contribution of property or assets to the Partnership;
(xvi) the exercise, directly or indirectly, through any attorney-in-fact acting under a general or limited power-of-attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(xvii) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(xviii) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest, pursuant to contractual or other arrangements with such Person;
(xix) the making, execution and delivery of any and all deeds, leases, notes, deeds to secure Debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate in the judgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement;
(xx) the issuance of additional Partnership Units in connection with Capital Contributions by Additional Limited Partners and additional Capital Contributions by Partners pursuant to Article IV hereof;
(xxi) the selection and dismissal of Parent Employees (including, without limitation, employees having titles or offices such as president, vice president, secretary and treasurer), and agents, outside attorneys, investment and other advisers, managers, accountants, consultants and contractors of the Partnership, the Parent or the General Partner, the determination of their compensation and other terms of employment or hiring and the delegation to any such Parent Employee the authority to conduct the business of the Partnership in accordance with the terms of this Agreement;
(xxii) the distribution of cash to acquire Partnership Units held by a Limited Partner in connection with a Limited Partner’s exercise of its Redemption right under Section 8.06 hereof;
(xxiii) maintaining, or causing to be maintained, the books and records of the Partnership or the Transfer Agent to reflect accurately at all times the Capital Contributions and Partnership Interests of the Holders as the same are adjusted from time to time to the extent necessary to reflect redemptions, Capital Contributions, the number of Partnership Units (including any issuance thereof), the admission of any Additional Limited Partner or any Substituted Limited Partner or otherwise;
(xxiv) the determination regarding whether a payment to a Limited Partner who exercises its Redemption right under Section 8.06 that is assumed by the General Partner will be paid in the form of the Cash Amount or the Common REIT Shares Amount, except as such determination may be limited by Section 8.06.
(xxv) the collection and receipt of revenues and income of the Partnership;
(xxvi) the registration of any class of securities of the Partnership under the Securities Act or the Exchange Act, and the listing of any securities of the Partnership on any exchange.
(xxvii) an election to dissolve the Partnership pursuant to Section 13.01(b) hereof; and
(xxviii) the taking of any action necessary or appropriate to enable the Parent to qualify as a member or partnerREIT (so long as the Parent desires to qualify as a REIT).
(b) Notwithstanding any other provision of this Agreement, the Operating Company Agreement, the Delaware Act or any applicable law, rule or regulation, each Each of the Limited Partners and the Assignees and each other Person who may acquire an interest agrees that, except as provided in Partnership Securities hereby (i) approvesSection 15.15 hereof, ratifies and confirms the execution, delivery and performance by the parties thereto of the Operating Company Agreement, any other limited liability company or partnership agreement of any other Group Member, the Underwriting Agreement, the Omnibus Agreement, the Contribution Agreement and the other agreements described in or filed as exhibits to the Registration Statement that are related to the transactions contemplated by the Registration Statement; (ii) agrees that the General Partner (on its own or through any officer of the Partnership) is authorized to execute, deliver and perform the above-mentioned agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership without any further act, approval or vote of the Partners Limited Partners, notwithstanding any other provision of this Agreement, the Act or any applicable law, rule or regulation and, in the absence of any specific corporate action on the part of the General Partner to the contrary, the taking of any action or the Assignees execution of any such document or writing by an officer of the other Persons who may acquire an interest General Partner, in Partnership Securities; the name and on behalf of the General Partner, in its capacity as the general partner of the Partnership, shall conclusively evidence (iii1) agrees that the execution, delivery or performance approval thereof by the General Partner, any Group Member in its capacity as the general partner of the Partnership, (2) the General Partner’s determination that such action, document or any Affiliate writing is necessary or desirable to conduct the business and affairs of any the Partnership, exercise the powers of them, of this Agreement or any agreement authorized or permitted the Partnership under this Agreement (including and the exercise Act or effectuate the purposes of the Partnership, or any other determination by the General Partner required by this Agreement in connection with the taking of such action or any Affiliate execution of such document or writing, and (3) the authority of such officer with respect thereto.
(c) The General Partner may cause the Partnership to obtain and maintain (i) casualty, liability and other insurance on the Properties and (ii) liability insurance for the Indemnitees hereunder.
(d) The General Partner may cause the Partnership to establish and maintain working capital and other reserves in such amounts as the General Partner deems appropriate and reasonable from time to time.
(e) In exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner (including the General Partner) of any action taken (or not taken) by it. Except as may be provided in a separate written agreement between the rights accorded pursuant to Article XV)Partnership and the Limited Partners, the General Partner and the Partnership shall not constitute have liability to a breach Limited Partner under any circumstances as a result of a tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner of any duty pursuant to its authority under this Agreement provided, that the General Partner may owe the Partnership or the Limited Partners or any other Persons has acted pursuant to its authority under this Agreement (or any other agreements) or of any duty stated or implied by law or equityAgreement.
Appears in 2 contracts
Samples: Second Amended and Restated Agreement of Limited Partnership (Gladstone Commercial Corp), Limited Partnership Agreement (GLADSTONE LAND Corp)
Management. (a) The General Partner shall conduct, direct and manage all activities of the Partnership. A. Except as otherwise expressly provided in this Agreement, all management powers over the business and affairs of the Partnership are and shall be exclusively vested in the General Partner, and no Limited Partner or Assignee shall have any right to participate in or exercise control or management power over the business and affairs of the Partnership. The General Partner may not be removed by the Limited Partners with or without cause. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or which are granted to the General Partner under any other provision of this Agreement, the General Partner, subject to Section 7.3the other provisions hereof including Sections 7.3 and 11.2, shall have full power and authority to do all things and on such terms as it, in its sole discretion, may deem deemed necessary or appropriate desirable by it to conduct the business of the PartnershipPartnership (including, without limitation, all actions consistent with allowing the General Partner at all times to qualify as a REIT unless the General Partner voluntarily terminates its REIT status), to exercise all powers set forth in Section 2.5 3.2 and to effectuate the purposes set forth in Section 2.43.1, including the followingincluding, without limitation:
(i1) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money to permit the Partnership to make distributions to its Partners in such amounts as will permit the General Partner (so long as the General Partner has determined to qualify as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Section 4981 of the Code) and to make distributions to its stockholders sufficient to permit the General Partner to maintain REIT status), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtednessindebtedness (including the securing of same by mortgage, including indebtedness that is convertible into Partnership Securities, deed of trust or other lien or encumbrance on the Partnership’s assets) and the incurring of any other obligationsobligations it deems necessary for the conduct of the activities of the Partnership;
(ii2) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership, the registration of any class of securities of the Partnership under the Securities Exchange Act of 1934, as amended, and the listing of any debt securities of the Partnership on any exchange;
(iii3) subject to the provisions of Section 11.2, the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the Partnership or the merger or other combination of the Partnership with or into another Person (the matters described in this clause (iii) being subject, however, to any prior approval that may be required by Section 7.3)entity;
(iv4) the acquisition, disposition, mortgage, pledge, encumbrance or hypothecation of any assets of the Partnership, and the use of the assets of the Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms it sees fit, including including, without limitation, the financing of the conduct of or the operations of the Partnership Group; subject to Section 7.6(a)General Partner or the Partnership, the lending of funds to other Persons (including other Group Members)including, without limitation, the General Partner or any Subsidiaries of the Partnership) and the repayment or guarantee of obligations of the Partnership Group Partnership, any of its Subsidiaries and any other Person in which it has an equity investment, and the making of capital contributions to any member of the Partnership Groupits Subsidiaries;
(v5) the management, operation, leasing, landscaping, repair, alteration, demolition or improvement of any real property or improvements owned by the Partnership or any Subsidiary of the Partnership;
(6) the negotiation, execution execution, and performance of any contracts, leases, conveyances or other instruments (including instruments that limit the liability of General Partner considers useful or necessary to the Partnership under contractual arrangements to all or particular assets conduct of the Partnership, with ’s operations or the other party to the contract to have no recourse against implementation of the General Partner or its assets Partner’s powers under this Agreement, including contracting with contractors, developers, consultants, accountants, legal counsel, other than its interest in professional advisors and other agents and the payment of their expenses and compensation out of the Partnership, even if same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case)’s assets;
(vi7) the distribution of Partnership cashcash or other Partnership assets in accordance with this Agreement;
(vii) 8) the establishment of one or more divisions of the Partnership, the selection and dismissal of employees of the Partnership (including including, without limitation, employees having titles such as “president,” “vice president,” “secretary” and “treasurer”) ), and agents, outside attorneys, accountants, consultants and contractors and of the Partnership, the determination of their compensation and other terms of employment or hiring, including waivers of conflicts of interest and the payment of their expenses and compensation out of the Partnership’s assets;
(viii9) the maintenance of such insurance for the benefit of the Partnership Group and the Partners and directors and officers of the Partnership or the General Partner as it deems necessary or appropriate;
(ix10) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, limited liability companies, joint ventures, corporations, limited liability companies corporations or other relationships that it deems desirable (including including, without limitation, the acquisition of interests in, and the contributions of property to, to any Group Member Subsidiary and any other Person in which it has an equity investment from time to time) subject ); provided, that, as long as the General Partner has determined to continue to qualify as a REIT, the restrictions set forth Partnership may not engage in Section 2.4any such formation, acquisition or contribution that could cause the General Partner to fail to qualify as a REIT;
(x11) the control of any matters affecting the rights and obligations of the Partnership, including the bringing settlement, compromise, submission to arbitration or any other form of dispute resolution, or abandonment of, any claim, cause of action, liability, debt or damages, due or owing to or from the Partnership, the commencement or defense of suits, legal proceedings, administrative proceedings, arbitration or other forms of dispute resolution, and defending the representation of actions at law the Partnership in all suits or in equity and otherwise engaging in the conduct legal proceedings, administrative proceedings, arbitrations or other forms of litigation and dispute resolution, the incurring of legal expense expense, and the settlement of claims and litigation;
(xi) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.8);
(xiii) unless restricted or prohibited by Section 5.7, the purchase, sale or other acquisition or disposition of Partnership Securities, or the issuance of additional options, rights, warrants and appreciation rights relating to Partnership Securities; and
(xiv12) the undertaking of any action in connection with the Partnership’s participation direct or indirect investment in any Group Member as a member Person (including, without limitation, contributing or partner.loaning Partnership funds to, incurring indebtedness on behalf of, or guarantying the obligations of any such Persons);
(b13) Notwithstanding any subject to the other provision of provisions in this Agreement, the Operating Company determination of the fair market value of any Partnership property distributed in kind using such reasonable method of valuation as it may adopt, provided, that such methods are otherwise consistent with requirements of this Agreement;
(14) the management, operation, leasing, landscaping, repair, alteration, demolition or improvement of any real property or improvements owned by the Delaware Act Partnership or any applicable lawSubsidiary of the Partnership or any Person in which the Partnership has made a direct or indirect equity investment;
(15) holding, rule managing, investing and reinvesting cash and other assets of the Partnership;
(16) the collection and receipt of revenues and income of the Partnership;
(17) the exercise, directly or regulationindirectly through any attorney-in-fact acting under a general or limited power of attorney, each of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(18) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(19) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest pursuant to contractual or other arrangements with such Person;
(20) the making, execution and delivery of any and all deeds, leases, notes, deeds to secure debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate in the judgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement;
(21) the issuance of additional Partnership Interests as provided in Sections 4.3, 4.4 or 4.5;
(22) the distribution of cash to acquire Partnership Units held by a Limited Partner in connection with a Limited Partner’s exercise of its Redemption Right under Section 8.6 hereof;
(23) the amendment and restatement of Exhibit A hereto to reflect accurately at all times the Capital Contributions and Percentage Interests of the Partners as the same are adjusted from time to time to the extent necessary to reflect redemptions, Capital Contributions, the issuance of Partnership Units, the admission of any Additional Limited Partner or any Substituted Limited Partner or otherwise, which amendment and restatement, notwithstanding anything in this Agreement to the Assignees contrary, shall not be deemed an amendment to this Agreement, as long as the matter or event being reflected in Exhibit A hereto otherwise is authorized by this Agreement;
(24) the taking of any and each other Person who may acquire an interest in all acts and things necessary or prudent to ensure that the Partnership Securities hereby (i) approves, ratifies and confirms the execution, delivery and performance by the parties thereto will not be classified as a “publicly traded partnership” taxable as a corporation under Section 7704 of the Operating Company Agreement, any other limited liability company or partnership agreement Code; and
(25) the delegation to another Person of any other Group Member, the Underwriting Agreement, the Omnibus Agreement, the Contribution Agreement and the other agreements described in powers now or filed as exhibits hereafter granted to the Registration Statement that are related to General Partner.
B. Each of the transactions contemplated by the Registration Statement; (ii) Limited Partners agrees that the General Partner (on its own or through any officer of the Partnership) is authorized to execute, deliver and perform the above-mentioned agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership without any further act, approval or vote of the Partners Partners, notwithstanding any other provisions of this Agreement (except as provided in Section 7.3 or 11.2), the Assignees Act or any applicable law, rule or regulation to the fullest extent permitted under the Act or other Persons who may acquire an interest in Partnership Securities; and (iii) agrees that the applicable law, rule or regulation. The execution, delivery or performance by the General Partner, any Group Member Partner or any Affiliate the Partnership of any of them, of this Agreement or any agreement authorized or permitted under this Agreement (including the exercise by the General Partner or any Affiliate of the General Partner of the rights accorded pursuant to Article XV), shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement (or any other agreements) or of any duty stated or implied by law or equity.
C. At all times from and after the date hereof, the General Partner may cause the Partnership to obtain and maintain (i) casualty, liability and other insurance on the properties of the Partnership and (ii) liability insurance for the benefit of any or all Indemnitees.
D. At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain working capital reserves in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
E. In exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner (including the General Partner) of any action taken (or not taken) by the General Partner. The General Partner and the Partnership shall not have liability to a Partner under this Agreement as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner pursuant to its authority under this Agreement.
F. Except as otherwise provided herein, to the extent the duties of the General Partner require expenditures of funds to be paid to third parties, the General Partner shall not have any obligations hereunder except to the extent that Partnership funds are reasonably available to it for the performance of such duties, and nothing herein contained shall be deemed to authorize or require the General Partner, in its capacity as such, to expend its individual funds for payment to third parties or to undertake any individual liability or obligation on behalf of the Partnership.
Appears in 2 contracts
Samples: Agreement of Limited Partnership (Digital Realty Trust, Inc.), Limited Partnership Agreement (Digital Realty Trust, Inc.)
Management. (a) The General Partner shall conduct, direct and manage all activities of the Partnership. A. Except as otherwise expressly provided in this Agreement, all management powers over the business and affairs of the Partnership are and shall be exclusively vested in the General Partner, and no Limited Partner or Assignee shall have any right to participate in or exercise control or management power over the business and affairs of the Partnership. The General Partner may not be removed by the Limited Partners with or without cause. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or which are granted to the General Partner under any other provision of this Agreement, the General Partner, subject to Section 7.3, Partner shall have full power and authority to do all things and on such terms as it, in its sole discretion, may deem deemed necessary or appropriate desirable by it to conduct the business of the Partnership, to exercise all powers set forth in Section 2.5 3.2 hereof, and to effectuate the purposes set forth in Section 2.43.1 hereof, including the followingincluding, without limitation:
(ia) the making of any expenditures, the lending or borrowing of money, including, without limitation, making prepayments on loans and borrowing money to permit the Partnership to make distributions to its Partners in such amounts as will enable the General Partner to make distributions to Kramont OP sufficient to permit Kramont OP to make distributions to the Company sufficient to permit the Company (so long as the Company qualifies as a REIT) to avoid the payment of any Federal income tax (including, for this purpose, any excise tax pursuant to section 4981 of the Code) and to make distributions to its shareholders in amounts sufficient to permit the Company to maintain REIT status, (b) the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, (c) the issuance of evidences of indebtednessindebtedness (including the securing of the same by deed, including indebtedness that is convertible into Partnership Securitiesmortgage, and deed of trust, or other lien or encumbrance on the Partnership's assets), (d) the incurring of any other obligationsobligations it deems necessary for the conduct of the activities of the Partnership, and (e) the execution and delivery, on the Partnership's behalf, of evidences of indebtedness and documents granting security for the payment thereof (with or without warrant of attorney to confess judgment against the Partnership upon default) and, without limiting the generality of the foregoing, the granting of a warrant of attorney to confess judgment against the Partnership;
(ii2) the making of tax, regulatory regulatory, and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership;
(iii3) the acquisition, disposition, transfer, mortgage, pledge, encumbrance, hypothecation hypothecation, or exchange of any or all of the assets of the Partnership (including the exercise or grant of any conversion, option, privilege, or subscription right or other right available in connection with any assets at any time held by the Partnership), or the merger or other combination or conversion of the Partnership with or into another entity; provided that (a) no disposition of an interest in a property listed on Exhibit E (whether by disposition of such property or by disposition of the Partnership's interest in an Entity owning such property) may be made prior to the date listed with respect to such property on Exhibit E (but only to the extent the Person identified with reference to the property on Exhibit E is a Limited Partner hereunder), without the consent of each individual listed with respect to such property on Exhibit E (b) (x) prior to August 1, 2000, except with the matters consent or at the request of Meshon and Xxxx Xxxxx (but only to the extent each is a Limited Partner hereunder), in the case of the Woodbourne Square Shopping Center shopping center, (y) prior to August 1, 1998, except with the consent or at the request of Meshon, in the case of the Rio Grande Plaza shopping center, or (z) prior to July 31, 2002, except with the consent or at the request of Meshon and Xxxx Xxxxx (but only to the extent each is a Limited Partner hereunder), in the case of the Chesterbrook Shopping Center Plaza shopping center, or, notwithstanding clauses (x), (y),and (z), except as required under the Master Agreement, the Partnership shall take no action (other than making capital improvements to the property involved, causing a sale not otherwise prohibited hereunder of the property involved or the Partnership's interest therein, making the principal amortization payments scheduled under the respective loan documents in effect on the date hereof, or issuing additional Partnership Interests under Section 4.3) which, of itself, would cause a reduction in the share of Meshon or Xxxx Xxxxx, (but only to the extent each is a Limited Partner hereunder) of the liabilities to which the Rio Grande Plaza, Woodbourne Square Shopping Center and Chesterbrook Shopping Center Plaza shopping centers are subject, if such reduction would, of itself, cause a realization or recognition of income to Meshon or Xxxx Xxxxx (to the extent a party hereto); provided that the consent of any individual described in this clause (iiiSection 7.1A(3) being subject, however, to any prior approval that may shall not be required by Section 7.3)after such individual's death;
(iv) the use of the assets of the Partnership (including cash on hand) for any purpose consistent with the terms of this Agreement, including the financing of the conduct of the operations of the Partnership Group; subject to Section 7.6(a), the lending of funds to other Persons (including other Group Members), the repayment or guarantee of obligations of the Partnership Group and the making of capital contributions to any member of the Partnership Group;
(v) the negotiation, execution and performance of any contracts, conveyances or other instruments (including instruments that limit the liability of the Partnership under contractual arrangements to all or particular assets of the Partnership, with the other party to the contract to have no recourse against the General Partner or its assets other than its interest in the Partnership, even if same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case);
(vi) the distribution of Partnership cash;
(vii) the selection and dismissal of employees (including employees having titles such as “president,” “vice president,” “secretary” and “treasurer”) and agents, outside attorneys, accountants, consultants and contractors and the determination of their compensation and other terms of employment or hiring;
(viii) the maintenance of such insurance for the benefit of the Partnership Group and the Partners as it deems necessary or appropriate;
(ix) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies or other relationships (including the acquisition of interests in, and the contributions of property to, any Group Member from time to time) subject to the restrictions set forth in Section 2.4;
(x) the control of any matters affecting the rights and obligations of the Partnership, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigation and the incurring of legal expense and the settlement of claims and litigation;
(xi) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.8);
(xiii) unless restricted or prohibited by Section 5.7, the purchase, sale or other acquisition or disposition of Partnership Securities, or the issuance of additional options, rights, warrants and appreciation rights relating to Partnership Securities; and
(xiv) the undertaking of any action in connection with the Partnership’s participation in any Group Member as a member or partner.
(b) Notwithstanding any other provision of this Agreement, the Operating Company Agreement, the Delaware Act or any applicable law, rule or regulation, each of the Partners and the Assignees and each other Person who may acquire an interest in Partnership Securities hereby (i) approves, ratifies and confirms the execution, delivery and performance by the parties thereto of the Operating Company Agreement, any other limited liability company or partnership agreement of any other Group Member, the Underwriting Agreement, the Omnibus Agreement, the Contribution Agreement and the other agreements described in or filed as exhibits to the Registration Statement that are related to the transactions contemplated by the Registration Statement; (ii) agrees that the General Partner (on its own or through any officer of the Partnership) is authorized to execute, deliver and perform the agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership without any further act, approval or vote of the Partners or the Assignees or the other Persons who may acquire an interest in Partnership Securities; and (iii) agrees that the execution, delivery or performance by the General Partner, any Group Member or any Affiliate of any of them, of this Agreement or any agreement authorized or permitted under this Agreement (including the exercise by the General Partner or any Affiliate of the General Partner of the rights accorded pursuant to Article XV), shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement (or any other agreements) or of any duty stated or implied by law or equity.
Appears in 2 contracts
Samples: Merger Agreement (Kranzco Realty Trust), Merger Agreement (Cv Reit Inc)
Management. (a) The General Partner shall conduct, direct and manage all activities of the Partnership. A. Except as otherwise expressly provided in this Agreement, all management powers over the business and affairs of the Partnership are and shall be exclusively vested in the General Partner, and no Limited Partner or Assignee shall have any right to participate in or exercise control or management power over the business and affairs of the Partnership. The General Partner may not be removed by the Partners with or without cause, except with the consent of the General Partner. In addition to the powers now or hereafter granted to a general partner of a limited partnership under applicable law or which that are granted to the General Partner under any other provision of this Agreement, the General Partner, subject to the other provisions hereof including Section 7.3, shall have full power and authority to do all things and on such terms as it, in its sole discretion, may deem deemed necessary or appropriate desirable by it to conduct the business of the Partnership, to exercise all powers set forth in Section 2.5 3.2 hereof and to effectuate the purposes set forth in Section 2.43.1 hereof, including the followingincluding, without limitation:
(i) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money or selling assets to permit the Partnership to make distributions to its Partners in such amounts as will permit the Parent (so long as the Parent desires to maintain or restore its status as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Code Section 4981) and to make distributions to its stockholders sufficient to permit the Parent to maintain or restore REIT status or otherwise to satisfy the REIT Requirements), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtednessindebtedness (including the securing of same by deed to secure debt, including indebtedness that is convertible into Partnership Securitiesmortgage, deed of trust or other lien or encumbrance on the Partnership's assets) and the incurring of any other obligationsobligations that it deems necessary for the conduct of the activities of the Partnership;
(ii) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership, the registration of any class of securities of the Partnership under the Exchange Act and the listing of any debt securities of the Partnership on any exchange;
(iii) the acquisition, dispositionsale, mortgagelease, pledgetransfer, encumbranceexchange or other disposition of any, hypothecation all or exchange of any or substantially all of the assets of the Partnership (including, but not limited to, the exercise or grant of any conversion, option, privilege or subscription right or any other right available in connection with any assets at any time held by the Partnership) or the merger merger, consolidation, reorganization or other combination of the Partnership with or into another Person (the matters described in this clause (iii) being subject, however, to any prior approval that may be required by Section 7.3)entity;
(iv) the mortgage, pledge, encumbrance or hypothecation of any assets of the Partnership, the use of the assets of the Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms that it sees fit, including including, without limitation, the financing of the conduct operations and activities of the operations General Partner, the Partnership or any of the Partnership Group; subject to Section 7.6(a)Partnership's Subsidiaries, the lending of funds to other Persons (including other Group Members)including, without limitation, the Partnership's Subsidiaries) and the repayment or guarantee of obligations of the Partnership, its Subsidiaries and any other Person in which the Partnership Group has an equity investment, and the making of capital contributions to any member of and equity investments in the Partnership GroupPartnership's Subsidiaries;
(v) the management, operation, leasing, landscaping, repair, alteration, demolition, replacement or improvement of any Property, including, without limitation, any Contributed Property, or other asset of the Partnership or any Subsidiary, whether pursuant to a Services Agreement or otherwise;
(vi) the negotiation, execution and performance of any contracts, leases, conveyances or other instruments (including instruments that limit the liability of General Partner considers useful or necessary to the Partnership under contractual arrangements to all or particular assets conduct of the Partnership, with 's operations or the other party to the contract to have no recourse against implementation of the General Partner or its assets Partner's powers under this Agreement, including contracting with contractors, developers, consultants, accountants, legal counsel, other than its interest in professional advisors and other agents and the payment of their expenses and compensation out of the Partnership, even if same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case);
(vi) the distribution of Partnership cash's assets;
(vii) the selection distribution of Partnership cash or other Partnership assets in accordance with this Agreement, the holding, management, investment and dismissal reinvestment of employees (including employees having titles such as “president,” “vice president,” “secretary” cash and “treasurer”) and agents, outside attorneys, accountants, consultants and contractors other assets of the Partnership and the determination collection and receipt of their compensation revenues, rents and other terms income of employment or hiringthe Partnership;
(viii) the maintenance of such insurance for the benefit of the Partnership Group and the Partners as it deems necessary or appropriate, including, without limitation, (i) casualty, liability and other insurance on the Properties and (ii) liability insurance for the Indemnitees hereunder;
(ix) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies companies, joint ventures or other relationships that it deems desirable (including including, without limitation, the acquisition of interests in, and the contributions of property to, any Group Member Subsidiary and any other Person in which it has an equity investment from time to time) subject ); provided, however, that, as long as the Parent has determined to continue to qualify as a REIT, the restrictions set forth General Partner may not engage in any such formation, acquisition or contribution that would cause the Parent to fail to qualify as a REIT within the meaning of Code Section 2.4856(a);
(x) the control of any matters affecting the rights and obligations of the Partnership, including the bringing settlement, compromise, submission to arbitration or any other form of dispute resolution, or abandonment, of any claim, cause of action, liability, debt or damages, due or owing to or from the Partnership, the commencement or defense of suits, legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, and defending the representation of actions at law the Partnership in all suits or in equity and otherwise engaging in the conduct legal proceedings, administrative proceedings, arbitrations or other forms of litigation and dispute resolution, the incurring of legal expense expense, and the settlement of claims and litigation;
(xi) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.8);
(xiii) unless restricted or prohibited by Section 5.7, the purchase, sale or other acquisition or disposition of Partnership Securities, or the issuance of additional options, rights, warrants and appreciation rights relating to Partnership Securities; and
(xivxi) the undertaking of any action in connection with the Partnership’s participation 's direct or indirect investment in any Group Member as a member Subsidiary or partner.any other Person (including, without limitation, the contribution or loan of funds by the Partnership to such Persons);
(bxii) Notwithstanding any other provision of except as otherwise specifically set forth in this Agreement, the Operating determination of the fair market value of any Partnership property distributed in-kind using such reasonable method of valuation as it may adopt; provided that such methods are otherwise consistent with the requirements of this Agreement;
(xiii) the enforcement of any rights against any Partner pursuant to representations, warranties, covenants and indemnities relating to such Partner's contribution of property or assets to the Partnership;
(xiv) the exercise, directly or indirectly, through any attorney-in-fact acting under a general or limited power-of-attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(xv) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(xvi) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest, pursuant to contractual or other arrangements with such Person;
(xvii) the making, execution and delivery of any and all deeds, leases, notes, deeds to secure debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate in the judgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement;
(xviii) the issuance of additional Partnership Units, as appropriate and in the General Partner's sole and absolute discretion, in connection with Capital Contributions by Additional Limited Partners and additional Capital Contributions by Partners pursuant to Article IV hereof;
(xix) the selection and dismissal of Company AgreementEmployees (including, without limitation, employees having titles or offices such as president, vice president, secretary and treasurer), and agents, outside attorneys, accountants, consultants and contractors of the Partnership or the General Partner, the Delaware Act determination of their compensation and other terms of employment or hiring and the delegation to any applicable law, rule or regulation, each such Company Employee the authority to conduct the business of the Partnership in accordance with the terms of this Agreement;
(xx) the distribution of cash to acquire Partnership Units held by a Limited Partner in connection with a Limited Partner's exercise of its Redemption Right under Section 8.6 hereof;
(xxi) the amendment and restatement of Exhibit A hereto to reflect accurately at all times the Capital Contributions and Percentage Interests of the Partners as the same are adjusted from time to time to the extent necessary to reflect redemptions, conversion of Earnout Units, Capital Contributions, the issuance of Partnership Units, the admission of any Additional Limited Partner or any Substituted Limited Partner or otherwise, which amendment and restatement, notwithstanding anything in this Agreement to the Assignees contrary, shall not be deemed an amendment to this Agreement, as long as the matter or event being reflected in Exhibit A hereto otherwise is authorized by this Agreement;
(xxii) the collection and each other Person who may acquire an interest in Partnership Securities hereby (i) approves, ratifies receipt of revenues and confirms the execution, delivery and performance by the parties thereto income of the Operating Company AgreementPartnership; and
(xxiii) an election to dissolve the Partnership pursuant to Section 13.1.D hereof.
B. Each of the Limited Partners agrees that, any other limited liability company or partnership agreement of any other Group Memberexcept as provided in Section 7.3 hereof, the Underwriting Agreement, the Omnibus Agreement, the Contribution Agreement and the other agreements described in or filed as exhibits to the Registration Statement that are related to the transactions contemplated by the Registration Statement; (ii) agrees that the General Partner (on its own or through any officer of the Partnership) is authorized to execute, deliver and perform the above-mentioned agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership without any further act, approval or vote of the Partners Partners, notwithstanding any other provision of this Agreement, the Act or any applicable law, rule or regulation.
C. At all times from and after the Assignees or date hereof, the General Partner may cause the Partnership to establish and maintain working capital and other Persons who may acquire an interest reserves in Partnership Securities; and (iii) agrees that the execution, delivery or performance by such amounts as the General Partner, any Group Member or any Affiliate of any of themin its sole and absolute discretion, of this Agreement or any agreement authorized or permitted deems appropriate and reasonable from time to time.
D. In exercising its authority under this Agreement Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner (including the exercise General Partner) of any action taken (or not taken) by it. Except as may be provided in a separate written agreement between the Partnership and the Limited Partners, the General Partner and the Partnership shall not have liability to a Limited Partner under any circumstances as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner or any Affiliate of the General Partner of the rights accorded pursuant to Article XV), shall not constitute a breach by the General Partner of any duty its authority under this Agreement; provided that the General Partner may owe the Partnership or the Limited Partners or any other Persons has acted in good faith and pursuant to its authority under this Agreement (or any other agreements) or of any duty stated or implied by law or equityAgreement.
Appears in 2 contracts
Samples: Limited Partnership Agreement (Feldman Mall Properties, Inc.), Agreement of Limited Partnership (Feldman Mall Properties, Inc.)
Management. (a) The General Partner shall conduct, direct and manage all activities of the Partnership. 7.1.1 Except as otherwise expressly provided in this Agreement, all management powers over the business and affairs of the Partnership are and shall be exclusively vested in the General Partner, and no Limited Partner or Assignee shall have any right to participate in or exercise control or management power over the business and affairs of the Partnership. The General Partner may not be removed by the Partners with or without cause, except with the consent of the General Partner. In addition to the powers now or hereafter granted to a general partner of a limited partnership under applicable law or which that are granted to the General Partner under any other provision of this Agreement, the General Partner, subject to Section 7.3the other provisions hereof, shall have full power and authority to do all things and on such terms as it, in its sole discretion, may deem deemed necessary or appropriate desirable by it to conduct the business of the Partnership, to exercise all powers set forth in Section 2.5 3.2 hereof and to effectuate the purposes set forth in Section 2.43.1 hereof, including the followingincluding, without limitation:
(ia) the making of any expenditures, the lending or borrowing of moneymoney (including making prepayments on loans and borrowing money or selling assets to permit the Partnership to make distributions to its Partners in such amounts as will permit the General Partner (so long as the General Partner desires to maintain or restore its status as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Code Section 4981) and to make distributions sufficient to permit the General Partner to maintain or restore REIT status or otherwise to satisfy the REIT Requirements), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtednessindebtedness (including the securing of same by deed to secure debt, including indebtedness that is convertible into Partnership Securitiesmortgage, deed of trust or other lien or encumbrance on the Partnership’s assets) and the incurring of any other obligationsobligations that it deems necessary for the conduct of the activities of the Partnership;
(iib) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership;
(iiic) the acquisition, dispositionsale, mortgagelease, pledgetransfer, encumbranceexchange or other disposition of any, hypothecation all or exchange of any or substantially all of the assets of the Partnership (including, but not limited to, the exercise or grant of any conversion, option, privilege or subscription right or any other right available in connection with any assets at any time held by the merger Partnership) or, subject to Section 8.6, the merger, consolidation, reorganization or other combination of the Partnership with or into another Person (the matters described in this clause (iii) being subject, however, to any prior approval that may be required by Section 7.3)entity;
(ivd) the mortgage, pledge, encumbrance or hypothecation of any assets of the Partnership, the use of the assets of the Partnership (including cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms that it sees fit, including the financing of the conduct operations and activities of the operations General Partner, the Partnership or any of the Partnership Group; subject to Section 7.6(a)Partnership’s Subsidiaries, the lending of funds to other Persons (including other Group Members), the Partnership’s Subsidiaries) and the repayment or guarantee of obligations of the Partnership, its Subsidiaries and any other Person in which the Partnership Group has an equity investment, and the making of capital contributions to and equity investments in the Partnership’s Subsidiaries;
(e) the management, operation, leasing, landscaping, repair, alteration, demolition, replacement or improvement of any member Property, including any Contributed Property, or other asset of the Partnership Groupor any Subsidiary, whether pursuant to a Services Agreement or otherwise;
(vf) the negotiation, execution and performance of any contracts, leases, conveyances or other instruments (including instruments that limit the liability General Partner considers useful or necessary to the conduct of the Partnership’s operations or the implementation of the General Partner’s powers under this Agreement, including contracting with contractors, developers, consultants, accountants, legal counsel, the Advisor’s other professional advisors and other agents and the payment of their expenses and compensation out of the Partnership’s assets; provided, however, that the Advisory Agreement must contain a provision (the “Voting Direction Provision”) that requires the Advisor to vote the shares of Proportionate Voting Preferred Stock in proportion to the votes (the “LP Direction Votes”) that the Advisor receives from the holders of Partnership under contractual arrangements Units (other than the General Partner), that are issued pursuant to all the Master Agreement or particular pursuant to any option delivered pursuant thereto or in connection with the consummation of the transactions contemplated thereby. The Advisor shall not cast any votes with respect to the share of Proportionate Voting Preferred Stock unless it receives LP Direction Votes with respect thereto.
(g) the distribution of Partnership cash or other Partnership assets in accordance with this Agreement, the holding, management, investment and reinvestment of cash and other assets of the Partnership, with and the other party to the contract to have no recourse against the General Partner or its assets other than its interest in collection and receipt of revenues, rents and income of the Partnership, even if same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case);
(vi) the distribution of Partnership cash;
(vii) the selection and dismissal of employees (including employees having titles such as “president,” “vice president,” “secretary” and “treasurer”) and agents, outside attorneys, accountants, consultants and contractors and the determination of their compensation and other terms of employment or hiring;
(viiih) the maintenance of such insurance for the benefit of the Partnership Group and the Partners as it deems necessary or appropriate, including (i) casualty, liability and other insurance on the Properties and (ii) liability insurance for the Indemnitees hereunder;
(ixi) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies companies, joint ventures or other relationships that it deems desirable (including the acquisition of interests in, and the contributions of property to, any Group Member Subsidiary and any other Person in which it has an equity investment from time to time) subject to the restrictions set forth in Section 2.4);
(xj) the control of any matters affecting the rights and obligations of the Partnership, including the bringing settlement, compromise, submission to arbitration or any other form of dispute resolution, or abandonment, of any claim, cause of action, liability, debt or damages, due or owing to or from the Partnership, the commencement or defense of suits, legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, and defending the representation of actions at law the Partnership in all suits or in equity and otherwise engaging in the conduct legal proceedings, administrative proceedings, arbitrations or other forms of litigation and dispute resolution, the incurring of legal expense expense, and the settlement of claims and litigation;
(xi) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.8);
(xiii) unless restricted or prohibited by Section 5.7, the purchase, sale or other acquisition or disposition of Partnership Securities, or the issuance of additional options, rights, warrants and appreciation rights relating to Partnership Securities; and
(xivk) the undertaking of any action in connection with the Partnership’s participation direct or indirect investment in any Group Member as a member Subsidiary or partner.any other Person (including the contribution of Property or contribution or loan of funds by the Partnership to such Persons);
(bl) Notwithstanding any other provision of except as otherwise specifically set forth in this Agreement, the Operating Company Agreement, the Delaware Act or any applicable law, rule or regulation, each determination of the Partners fair market value of any Partnership property distributed in kind using such method of valuation as it may reasonably adopt as long as such method is otherwise consistent with the requirements of this Agreement;
(m) the enforcement of any rights against any Partner pursuant to representations, warranties, covenants and indemnities relating to such Partner’s contribution of property or assets to the Assignees and each other Person who may acquire an interest in Partnership Securities hereby Partnership;
(in) approvesthe exercise, ratifies and confirms directly or indirectly, through any attorney-in-fact acting under a general or limited power of attorney, of any right, including the executionright to vote, delivery and performance appurtenant to any asset or investment held by the parties thereto Partnership;
(o) the exercise of any of the Operating Company Agreement, any other limited liability company or partnership agreement powers of any other Group Member, the Underwriting Agreement, the Omnibus Agreement, the Contribution Agreement and the other agreements described in or filed as exhibits to the Registration Statement that are related to the transactions contemplated by the Registration Statement; (ii) agrees that the General Partner (enumerated in this Agreement on its own behalf of or through in connection with any officer Subsidiary of the PartnershipPartnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(p) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest, pursuant to contractual or other arrangements with such Person;
(q) the making, execution and delivery of any and all deeds, leases, notes, deeds to secure debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate in the judgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement;
(r) the issuance of additional Partnership Units, as appropriate and in the General Partner’s sole and absolute discretion, in connection with Capital Contributions by Additional Limited Partners and additional Capital Contributions by Partners pursuant to Section 4 hereof;
(s) the selection and dismissal of Partnership Employees (including employees having titles or offices such as president, vice president, secretary and treasurer), and agents, outside attorneys, accountants, consultants and contractors of the Partnership or the General Partner, the determination of their compensation and other terms of employment or hiring and the delegation to any such Partnership Employee the authority to conduct the business of the Partnership in accordance with the terms of this Agreement; and
(t) an election to dissolve the Partnership pursuant to Section 13.1.2 hereof.
7.1.2 Except as provided in Section 14.2 hereof, the General Partner is authorized to execute, deliver and perform the above-mentioned agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership without any further act, approval or vote of the Partners Partners, notwithstanding any other provision of this Agreement, the Act or the Assignees any applicable law, rule or the other Persons who may acquire an interest in Partnership Securities; and (iii) agrees that the regulation. The execution, delivery or performance by the General Partner, any Group Member Partner or any Affiliate the Partnership of any of them, of this Agreement or any agreement authorized or permitted under this Agreement (including the exercise by the General Partner or any Affiliate of the General Partner of the rights accorded pursuant to Article XV), shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement (or any other agreements) or of any duty stated or implied by law or equity.
7.1.3 At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain working capital and other reserves in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
7.1.4 In exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner (including the General Partner) of any action taken by it. The General Partner and the Partnership shall not have liability to a Limited Partner under any circumstances as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner pursuant to its authority under this Agreement.
7.1.5 The General Partner may not take any action in contravention of this Agreement, including, without limitation:
(a) taking any action that would make it impossible to carry on the ordinary business of the Partnership, except as otherwise provided in this Agreement;
(b) possessing Property, or assigning any rights in specific Property, for other than a Partnership purpose except as otherwise provided in this Agreement, including Section 7.9;
(c) admitting a Person as a Partner, except as otherwise provided in this Agreement;
(d) performing any act that would subject a Limited Partner to liability as a general partner in any jurisdiction or any other liability except as otherwise provided in this Agreement or under the Act; or
(e) entering into any contract, mortgage, loan or other agreement that prohibits or restricts the ability of (a) the General Partner or the Partnership from satisfying its obligations under Section 8.5 hereof in full or (b) a Limited Partner from exercising its rights under Section 8.5 hereof to effect a Redemption in full, except, in either case, with the written consent of such Limited Partner adversely affected by the prohibition or restriction.
Appears in 2 contracts
Samples: Limited Partnership Agreement (Arizona Land Income Corp), Partnership Agreement (Arizona Land Income Corp)
Management. (ai) The General Partner shall conduct, direct and manage all activities of the Partnership. Except as otherwise expressly provided in this Agreement, all management powers over full, complete and exclusive discretion to manage and control the business and affairs of the Partnership are and shall be exclusively vested in the General Partner, and no Limited Partner or Assignee shall have any right to participate in or exercise control or management power over the business and affairs of the Partnership. .
(ii) The General Partner may not be removed by the Associate General Partner or the Limited Partners with or without cause.
(iii) In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or which are granted to the General Partner under any other provision of this Agreement, the General Partner, subject to Section 7.3, Partner shall have full power and authority to do all things and on such terms as it, in its sole discretion, may deem deemed necessary or appropriate desirable by it to conduct the business of the Partnership, to exercise all powers set forth in Section 2.5 3.2 hereof and to effectuate the purposes set forth in Section 2.43.1 hereof, including the followingincluding, without limitation:
(i1) the making of any expenditures, the lending or borrowing of money, including, without limitation, making prepayments on loans and borrowing money to permit the Partnership to make distributions to its Partners in such amounts as will permit the General Partner (so long as the General Partner qualifies as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Section 4981 of the Code) and to make distributions to its stockholders in amounts sufficient to permit the General Partner to maintain REIT status,
(2) the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, ,
(3) the issuance of evidences evidence of indebtednessindebtedness (including the securing of the same by deed, including indebtedness that is convertible into Partnership Securitiesmortgage, and deed of trust or other lien or encumbrance on the Partnership’s assets) and
(4) the incurring of any other obligationsobligations it deems necessary for the conduct of the activities of the Partnership, including the payment of all expenses associated with the General Partner;
(iiB) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the PartnershipPartnership or the General Partner;
(iiiC) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any all or substantially all of the assets of the Partnership (including the exercise or grant of any conversion, option, privilege, or subscription right or other right available in connection with any assets at any time held by the Partnership) or the merger merger, consolidation or other combination (a “ Business Combination”) of the Partnership with or into another Person (Entity on such terms as the matters described in this clause (iii) being subjectGeneral Partner deems proper, however, to any prior approval provided that may the General Partner shall be required by Section 7.3)to send to the Associate General Partner and each Limited Partner a notice of such proposed Business Combination no less than 15 days prior to the record date for the vote of the General Partner’s stockholders on such Business Combination, if any;
(ivD) the use of the assets of the Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms it sees fit, including including, without limitation,
(1) the financing of the conduct of the operations of the General Partner, the Partnership Group; subject to Section 7.6(a), or any of the Partnership’s Subsidiaries,
(2) the lending of funds to other Persons (including other Group Members)including, without limitation, the Subsidiaries of the Partnership and/or the General Partner) and the repayment or guarantee of obligations of the Partnership Group and its Subsidiaries and any other Person in which it has an equity investment, and
(3) the making of capital contributions to its Subsidiaries;
(E) the expansion, development, construction, leasing, repair, alteration, demolition or improvement of any member property in which the Partnership or any Subsidiary of the Partnership Groupowns an interest;
(vF) the negotiation, execution execution, and performance of any contracts, conveyances or other instruments (including instruments that limit the liability of General Partner considers useful or necessary to the Partnership under contractual arrangements to all or particular assets conduct of the Partnership, with ’s operations or the other party to the contract to have no recourse against implementation of the General Partner or its assets Partner’s powers under this Agreement, including contracting with contractors, developers, consultants, accountants, legal counsel, other than its interest in professional advisors and other agents and the payment of their expenses and compensation out of the Partnership, even if same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case)’s assets;
(viG) the distribution of Partnership cashcash or other Partnership assets in accordance with this Agreement;
(viiH) holding, managing, investing and reinvesting cash and other assets of the Partnership;
(I) the collection and receipt of revenues and income of the Partnership;
(J) the establishment of one or more divisions of the Partnership, the selection and dismissal of employees of the Partnership (including including, without limitation, employees having titles such as “president,” “vice president,” “secretary” and “treasurer”) ” of the Partnership), and agents, outside attorneys, accountants, consultants and contractors of the Partnership, and the determination of their compensation and other terms of employment or hiringengagement;
(viiiK) the maintenance of such insurance for the benefit of the Partnership Group and the Partners and directors and officers thereof as it deems necessary or appropriate;
(ixL) the formation of, or acquisition of an interest (including non-voting interests in entities controlled by Affiliates of the Partnership or third parties) in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies Entities or other relationships (including that it deems desirable, including, without limitation, the acquisition of interests in, and the contributions of funds or property to, or making of loans to, its Subsidiaries and any Group Member other Person from time to time) subject , or the incurrence of indebtedness on behalf of such Persons or the guarantee of the obligations of such Persons; provided that, as long as the General Partner has determined to elect to qualify as a REIT or to continue to qualify as a REIT, the restrictions set forth Partnership may not engage in Section 2.4any such formation, acquisition or contribution that would cause the General Partner to fail to qualify as a REIT;
(xM) the control of any matters affecting the rights and obligations of the Partnership, including including
(1) the bringing and defending settlement, compromise, submission to arbitration or any other form of actions at law dispute resolution, or abandonment of, any claim, cause of action, liability, debt or damages, due or owing to or from the Partnership,
(2) the commencement or defense of suits, legal proceedings, administrative proceedings, arbitration or other forms of dispute resolution, and
(3) the representation of the Partnership in equity and otherwise engaging in the conduct all suits or legal proceedings, administrative proceedings, arbitrations or other forms of litigation and dispute resolution, the incurring of legal expense expenses, and the settlement of claims and litigation;
(xi) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.8);
(xiii) unless restricted or prohibited by Section 5.7, the purchase, sale or other acquisition or disposition of Partnership Securities, or the issuance of additional options, rights, warrants and appreciation rights relating to Partnership Securities; and
(xivN) the undertaking of any action in connection with the Partnership’s participation direct or indirect investment in its Subsidiaries or any Group Member as a member other Person (including, without limitation, the contribution or partner.loan of funds by the Partnership to such Persons);
(bO) Notwithstanding the determination of the fair market value of any Partnership property distributed in kind using such reasonable method of valuation as the General Partner, in its sole discretion, may adopt;
(P) the exercise, directly or indirectly, through any attorney-in-fact acting under a general or limited power of attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(Q) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other provision Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(R) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest pursuant to contractual or other arrangements with such Person;
(S) the making, execution and delivery of any and all deeds, leases, notes, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate, in the judgment of the General Partner, for the accomplishment of any of the foregoing;
(T) the issuance of additional Partnership Units in connection with Capital Contributions by Additional Limited Partners and additional Capital Contributions by Partners pursuant to Article 4 hereof;
(U) the opening of bank accounts on behalf of, and in the name of, the Partnership and its Subsidiaries; and
(V) the amendment and restatement of Exhibit A to reflect accurately at all times the Capital Contributions and Percentage Interests of the Partners as the same are adjusted from time to time to the extent necessary to reflect redemptions, Capital Contributions, the issuance of Partnership Units, the admission of any Additional Limited Partner or any Substituted Limited Partner or otherwise, which amendment and restatement, notwithstanding anything in this Agreement to the contrary, shall not be deemed an amendment of this Agreement, as long as the Operating Company matter or event being reflected in Exhibit A otherwise is authorized by this Agreement, the Delaware Act or any applicable law, rule or regulation, .
(i) The Associate General Partner and each of the Limited Partners and the Assignees and each other Person who may acquire an interest in Partnership Securities hereby (i) approves, ratifies and confirms the execution, delivery and performance by the parties thereto of the Operating Company Agreement, any other limited liability company or partnership agreement of any other Group Member, the Underwriting Agreement, the Omnibus Agreement, the Contribution Agreement and the other agreements described in or filed as exhibits to the Registration Statement that are related to the transactions contemplated by the Registration Statement; (ii) agrees agree that the General Partner (on its own or through any officer of the Partnership) is authorized to execute, deliver and perform the above-mentioned agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership without any further act, approval or vote of the Partners Partners, notwithstanding any other provision of this Agreement to the fullest extent permitted under the Act or the Assignees other applicable law, rule or the other Persons who may acquire an interest in Partnership Securities; and regulation.
(iiiii) agrees that the The execution, delivery or performance by the General Partner, any Group Member Partner or any Affiliate the Partnership of any of them, of this Agreement or any agreement authorized or permitted under this Agreement (including the exercise by the General Partner or any Affiliate of the General Partner of the rights accorded pursuant to Article XV), shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement (or any other agreements) or of any duty stated or implied by law or equity.
(c) At all times from and after the date hereof, the General Partner at the expense of the Partnership, may or may not, cause the Partnership to obtain and maintain
(i) casualty, liability and other insurance on the properties of the Partnership;
(ii) liability insurance for the Indemnitees hereunder; and
(iii) such other insurance as the General Partner, in its sole and absolute discretion, determines to be appropriate and reasonable.
(d) At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain at any and all times working capital accounts and other cash or similar balances in such amount as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
(i) In exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner (including the General Partner) of any action taken (or not taken) by it. The General Partner and the Partnership shall not have liability to the Associate General Partner or any Limited Partner for monetary damages or otherwise for losses sustained, liabilities incurred or benefits not delivered by the Associate General Partner or such Limited Partner in connection with such decisions, provided that the General Partner has acted in good faith pursuant to its authority under this Agreement. The Limited Partners expressly acknowledge that the General Partner is acting on behalf of the Partnership, the General Partner, and the General Partner’s stockholders, collectively.
(ii) The General Partner and the Partnership shall not have liability to the Associate General Partner or any Limited Partner under any circumstances as a result of an income tax liability incurred by the Associate General Partner or such Limited Partner as a result of an action (or inaction) by the General Partner taken pursuant to its authority under and in accordance with this Agreement.
Appears in 2 contracts
Samples: Limited Partnership Agreement (Lightstone Value Plus Real Estate Investment Trust Ii Inc), Limited Partnership Agreement (Lightstone Value Plus Real Estate Investment Trust Ii Inc)
Management. (a) The General Partner shall conduct, direct and manage all activities of the Partnership. A. Except as otherwise expressly provided in this Agreement, all management powers over the business and affairs of the Partnership are and shall be exclusively vested in the General Partner, and no Limited Partner or Assignee shall have any right to participate in or exercise control or management power over the business and affairs of the Partnership. The General Partner may not be removed by the Limited Partners with or without cause. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or which are granted to the General Partner under any other provision of this Agreement, the General Partner, subject to Section 7.3the other provisions hereof including Sections 7.3 and 11.2, shall have full power and authority to do all things and on such terms as it, in its sole discretion, may deem deemed necessary or appropriate desirable by it to conduct the business of the Partnership, to exercise all powers set forth in Section 2.5 3.2 and to effectuate the purposes set forth in Section 2.43.1, including the followingincluding, without limitation:
(i1) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money to permit the Partnership to make distributions to its Partners in such amounts as will permit the General Partner (so long as the General Partner has determined to qualify as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Section 4981 of the Code) and to make distributions to its stockholders sufficient to permit the General Partner to maintain REIT status), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtednessindebtedness (including the securing of same by mortgage, including indebtedness that is convertible into Partnership Securities, deed of trust or other lien or encumbrance on the Partnership's assets) and the incurring of any other obligationsobligations it deems necessary for the conduct of the activities of the Partnership;
(ii2) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership, the registration of any class of securities of the Partnership under the Securities Exchange Act of 1934, as amended, and the listing of any debt securities of the Partnership on any exchange;
(iii3) subject to the provisions of Section 11.2, the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the Partnership or the merger or other combination of the Partnership with or into another Person (the matters described in this clause (iii) being subject, however, to any prior approval that may be required by Section 7.3)entity;
(iv4) the acquisition, disposition, mortgage, pledge, encumbrance or hypothecation of any assets of the Partnership, and the use of the assets of the Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms it sees fit, including including, without limitation, the financing of the conduct of or the operations of the Partnership Group; subject to Section 7.6(a)General Partner or the Partnership, the lending of funds to other Persons (including other Group Members)including, without limitation, the General Partner or any Subsidiaries of the Partnership) and the repayment or guarantee of obligations of the Partnership Group Partnership, any of its Subsidiaries and any other Person in which it has an equity investment, and the making of capital contributions to any member of the Partnership Groupits Subsidiaries;
(v5) the management, operation, leasing, landscaping, repair, alteration, demolition or improvement of any real property or improvements owned by the Partnership or any Subsidiary of the Partnership;
(6) the negotiation, execution execution, and performance of any contracts, leases, conveyances or other instruments (including instruments that limit the liability of General Partner considers useful or necessary to the Partnership under contractual arrangements to all or particular assets conduct of the Partnership, with 's operations or the other party to the contract to have no recourse against implementation of the General Partner or its assets Partner's powers under this Agreement, including contracting with contractors, developers, consultants, accountants, legal counsel, other than its interest in professional advisors and other agents and the payment of their expenses and compensation out of the Partnership, even if same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case)'s assets;
(vi7) the distribution of Partnership cashcash or other Partnership assets in accordance with this Agreement;
(vii) 8) the establishment of one or more divisions of the Partnership, the selection and dismissal of employees of the Partnership (including including, without limitation, employees having titles such as “"president,” “" "vice president,” “" "secretary” " and “"treasurer”) "), and agents, outside attorneys, accountants, consultants and contractors and of the Partnership, the determination of their compensation and other terms of employment or hiring, including waivers of conflicts of interest and the payment of their expenses and compensation out of the Partnership's assets;
(viii9) the maintenance of such insurance for the benefit of the Partnership Group and the Partners and directors and officers of the Partnership or the General Partner as it deems necessary or appropriate;
(ix10) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies ventures or other relationships that it deems desirable (including including, without limitation, the acquisition of interests in, and the contributions of property to, to any Group Member Subsidiary and any other Person in which it has an equity investment from time to time) subject ); provided, that, as long as the General Partner has determined to continue to qualify as a REIT, the restrictions set forth Partnership may not engage in Section 2.4any such formation, acquisition or contribution that could cause the General Partner to fail to qualify as a REIT;
(x11) the control of any matters affecting the rights and obligations of the Partnership, including the bringing settlement, compromise, submission to arbitration or any other form of dispute resolution, or abandonment of, any claim, cause of action, liability, debt or damages, due or owing to or from the Partnership, the commencement or defense of suits, legal proceedings, administrative proceedings, arbitration or other forms of dispute resolution, and defending the representation of actions at law the Partnership in all suits or in equity and otherwise engaging in the conduct legal proceedings, administrative proceedings, arbitrations or other forms of litigation and dispute resolution, the incurring of legal expense expense, and the settlement of claims and litigation;
(xi) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.8);
(xiii) unless restricted or prohibited by Section 5.7, the purchase, sale or other acquisition or disposition of Partnership Securities, or the issuance of additional options, rights, warrants and appreciation rights relating to Partnership Securities; and
(xiv12) the undertaking of any action in connection with the Partnership’s participation 's direct or indirect investment in any Group Member as a member Person (including, without limitation, contributing or partner.loaning Partnership funds to, incurring indebtedness on behalf of, or guarantying the obligations of any such Persons);
(b13) Notwithstanding any subject to the other provision of provisions in this Agreement, the Operating Company determination of the fair market value of any Partnership property distributed in kind using such reasonable method of valuation as it may adopt, provided, that such methods are otherwise consistent with requirements of this Agreement;
(14) the management, operation, leasing, landscaping, repair, alteration, demolition or improvement of any real property or improvements owned by the Delaware Act Partnership or any applicable lawSubsidiary of the Partnership or any Person in which the Partnership has made a direct or indirect equity investment;
(15) holding, rule managing, investing and reinvesting cash and other assets of the Partnership;
(16) the collection and receipt of revenues and income of the Partnership;
(17) the exercise, directly or regulationindirectly through any attorney-in-fact acting under a general or limited power of attorney, each of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(18) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(19) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest pursuant to contractual or other arrangements with such Person;
(20) the making, execution and delivery of any and all deeds, leases, notes, deeds to secure debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate in the judgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement;
(21) the issuance of additional Partnership interests, as appropriate, in connection with the contribution of Additional Funds pursuant to Section 4.3;
(22) the distribution of cash to acquire Partnership Units held by a Limited Partner in connection with a Limited Partner's exercise of its Redemption Right under Section 8.6 hereof; and
(23) the amendment and restatement of Exhibit A hereto to reflect accurately at all times the Capital Contributions and Percentage Interests of the Partners as the same are adjusted from time to time to the extent necessary to reflect redemptions, Capital Contributions, the issuance of Partnership Units, the admission of any Additional Limited Partner or any Substituted Limited Partner or otherwise, which amendment and restatement, notwithstanding anything in this Agreement to the Assignees and each other Person who may acquire contrary, shall not be deemed an interest amendment to this Agreement, as long as the matter or event being reflected in Partnership Securities hereby (i) approves, ratifies and confirms the execution, delivery and performance Exhibit A hereto otherwise is authorized by the parties thereto this Agreement.
B. Each of the Operating Company Agreement, any other limited liability company or partnership agreement of any other Group Member, the Underwriting Agreement, the Omnibus Agreement, the Contribution Agreement and the other agreements described in or filed as exhibits to the Registration Statement that are related to the transactions contemplated by the Registration Statement; (ii) Limited Partners agrees that the General Partner (on its own or through any officer of the Partnership) is authorized to execute, deliver and perform the above-mentioned agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership without any further act, approval or vote of the Partners Partners, notwithstanding any other provisions of this Agreement (except as provided in Section 7.3 or 11.2), the Assignees Act or any applicable law, rule or regulation to the fullest extent permitted under the Act or other Persons who may acquire an interest in Partnership Securities; and (iii) agrees that the applicable law, rule or regulation. The execution, delivery or performance by the General Partner, any Group Member Partner or any Affiliate the Partnership of any of them, of this Agreement or any agreement authorized or permitted under this Agreement (including the exercise by the General Partner or any Affiliate of the General Partner of the rights accorded pursuant to Article XV), shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement (or any other agreements) or of any duty stated or implied by law or equity.
C. At all times from and after the date hereof, the General Partner may cause the Partnership to obtain and maintain (i) casualty, liability and other insurance on the properties of the Partnership and (ii) liability insurance for the Indemnities hereunder.
D. At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain working capital reserves in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
E. In exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner (including the General Partner) of any action taken (or not taken) by the General Partner. The General Partner and the Partnership shall not have liability to a Partner under this Agreement as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner pursuant to its authority under this Agreement.
F. Except as otherwise provided herein, to the extent the duties of the General Partner require expenditures of funds to be paid to third parties, the General Partner shall not have any obligations hereunder except to the extent that Partnership funds are reasonably available to it for the performance of such duties, and nothing herein contained shall be deemed to authorize or require the General Partner, in its capacity as such, to expend its individual funds for payment to third parties or to undertake any individual liability or obligation on behalf of the Partnership.
Appears in 2 contracts
Samples: Limited Partnership Agreement (Maguire Properties Inc), Agreement of Limited Partnership (Maguire Properties Inc)
Management. (a) The General Partner shall conduct, direct and manage all activities of the Partnership. Except as otherwise expressly provided in this Agreement, all management powers over the business and affairs of the Partnership are and shall be exclusively vested in the General Partner, and no Limited Partner or Assignee shall have any right to participate in or exercise control or management power over the business and affairs of the Partnership. The General Partner may not be removed by the Limited Partners, except with the consent of the General Partner. In addition to the powers now or hereafter granted to a general partner of a limited partnership under applicable law or which that are granted to the General Partner under any other provision of this Agreement, the General Partner, subject to the other provisions hereof including Section 7.37.03, shall have full power and authority to do all things and on such terms as it, in its sole discretion, may deem deemed necessary or appropriate desirable by it to conduct the business of the Partnership, to exercise all powers set forth in Section 2.5 3.02 hereof and to effectuate the purposes set forth in Section 2.43.01 hereof, including the followingincluding, without limitation:
(i) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money or selling assets to permit the Partnership to make distributions to its Partners in such amounts as will permit the General Partner (so long as the General Partner desires to maintain or restore its qualification as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Code Section 4981) and to make distributions to its stockholders sufficient to permit the General Partner to maintain or restore REIT qualification or otherwise to satisfy the REIT Requirements), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtednessindebtedness (including the securing of same by deed to secure debt, including indebtedness that is convertible into Partnership Securitiesmortgage, deed of trust or other lien or encumbrance on the Partnership’s assets) and the incurring of any other obligationsobligations that it deems necessary for the conduct of the activities of the Partnership;
(ii) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership, the registration of any class of securities of the Partnership under the Exchange Act and the listing of any debt securities of the Partnership on any exchange;
(iii) subject to Section 11.02 hereof, the acquisition, dispositionsale, mortgagelease, pledgetransfer, encumbranceexchange or other disposition of any, hypothecation all or exchange of any or substantially all of the assets of the Partnership (including, but not limited to, the exercise or grant of any conversion, option, privilege or subscription right or any other right available in connection with any assets at any time held by the Partnership) or the merger merger, consolidation, reorganization or other combination of the Partnership with or into another Person (the matters described in this clause (iii) being subject, however, to any prior approval that may be required by Section 7.3)entity;
(iv) the mortgage, pledge, encumbrance or hypothecation of any assets of the Partnership, the use of the assets of the Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms that it sees fit, including including, without limitation, the financing of the operations and activities of the General Partner, the Partnership or any of the Partnership’s Subsidiaries, the lending of funds to other Persons (including, without limitation, the Partnership’s Subsidiaries) and the repayment of obligations of the Partnership, its Subsidiaries and any other Person in which the Partnership has an equity investment, and the making of capital contributions to and equity investments in the Partnership’s Subsidiaries;
(v) the use of the assets of the Partnership (including, without limitation, cash on hand) for any purpose consistent with the terms of this Agreement and on any terms it sees fit, including, without limitation, the financing of the conduct of the operations of the General Partner, the Partnership Group; subject to Section 7.6(a)or any of the Partnership’s Subsidiaries, the lending of funds to other Persons (including other Group Members)including, without limitation, the General Partner and its Subsidiaries and the Partnership’s Subsidiaries) and the repayment or guarantee of obligations of the Partnership Group and its Subsidiaries and any other Person in which the Partnership has an equity investment and the making of capital contributions to its Subsidiaries;
(vi) the management, operation, leasing, landscaping, repair, alteration, demolition, replacement or improvement of any member Property, including, without limitation, any Contributed Property, or other asset of the Partnership Groupor any Subsidiary, whether pursuant to a Services Agreement or otherwise;
(vvii) the negotiation, execution and performance of any contracts, leases, conveyances or other instruments (including instruments that limit the liability of General Partner considers useful or necessary to the Partnership under contractual arrangements to all or particular assets conduct of the Partnership, with ’s operations or the other party to the contract to have no recourse against implementation of the General Partner or its assets Partner’s powers under this Agreement, including contracting with contractors, developers, consultants, accountants, legal counsel, other than its interest in professional advisors and other agents and the payment of their expenses and compensation out of the Partnership, even if same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case)’s assets;
(viviii) the distribution of Partnership cashcash or other Partnership assets in accordance with this Agreement, the holding, management, investment and reinvestment of cash and other assets of the Partnership and the collection and receipt of revenues, rents and income of the Partnership;
(vii) the selection and dismissal of employees (including employees having titles such as “president,” “vice president,” “secretary” and “treasurer”) and agents, outside attorneys, accountants, consultants and contractors and the determination of their compensation and other terms of employment or hiring;
(viiiix) the maintenance of such insurance for the benefit of the Partnership Group and the Partners as it the General Partner deems necessary or appropriate, including, without limitation, (i) casualty, liability and other insurance on the Properties and (ii) liability insurance for the Indemnitees hereunder;
(ixx) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies companies, joint ventures or other relationships that the General Partner deems desirable (including including, without limitation, the acquisition of interests in, and the contributions of property to, any Group Member Subsidiary and any other Person in which it has an equity investment from time to time); provided, however, that as long as the General Partner has determined to continue to qualify as a REIT, the General Partner may not engage in any such formation, acquisition or contribution that would cause it to fail to qualify as a REIT within the meaning of Code Section 856(a) subject (so long as the General Partner desires to the restrictions set forth in Section 2.4maintain its qualification as a REIT);
(xxi) the filing of applications, communicating and otherwise dealing with any and all governmental agencies having jurisdiction over, or in any way affecting, the Partnership’s assets or any other aspect of the Partnership business;
(xii) the control of any matters affecting the rights and obligations of the Partnership, including the bringing settlement, compromise, submission to arbitration or any other form of dispute resolution, or abandonment, of any claim, cause of action, liability, debt or damages, due or owing to or from the Partnership, the commencement or defense of suits, legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, and defending the representation of actions at law the Partnership in all suits or in equity and otherwise engaging in the conduct legal proceedings, administrative proceedings, arbitrations or other forms of litigation and dispute resolution, the incurring of legal expense expense, and the settlement of claims and litigation;
(xi) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.8);
(xiii) unless restricted or prohibited by Section 5.7, the purchase, sale or other acquisition or disposition of Partnership Securities, or the issuance of additional options, rights, warrants and appreciation rights relating to Partnership Securities; and
(xiv) the undertaking of any action in connection with the Partnership’s participation direct or indirect investment in any Group Member Subsidiary or any other Person (including, without limitation, the contribution or loan of funds by the Partnership to such Persons);
(xiv) except as otherwise specifically set forth in this Agreement, the determination of the fair market value of any Partnership property distributed in-kind using such reasonable method of valuation as it may adopt; provided, that such methods are otherwise consistent with the requirements of this Agreement;
(xv) the enforcement of any rights against any Partner pursuant to representations, warranties, covenants and indemnities relating to such Partner’s contribution of property or assets to the Partnership;
(xvi) the exercise, directly or indirectly, through any attorney-in-fact acting under a general or limited power-of-attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(xvii) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(xviii) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest, pursuant to contractual or other arrangements with such Person;
(xix) the making, execution and delivery of any and all deeds, leases, notes, deeds to secure Debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate in the judgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement;
(xx) the issuance of additional Partnership Units, as appropriate and in the General Partner’s sole and absolute discretion, in connection with Capital Contributions by Additional Limited Partners and additional Capital Contributions by Partners pursuant to Article IV hereof;
(xxi) the selection and dismissal of employees (including, without limitation, employees having titles or offices such as president, vice president, secretary and treasurer), and agents, outside attorneys, accountants, consultants and contractors of the Partnership or the General Partner, the determination of their compensation and other terms of employment or hiring and the delegation to any such employees the authority to conduct the business of the Partnership in accordance with the terms of this Agreement;
(xxii) the distribution of cash to acquire Partnership Units held by a Limited Partner in connection with a Limited Partner’s exercise of its Redemption right under Section 8.06 hereof;
(xxiii) the amendment and restatement of Exhibit A hereto to reflect accurately at all times the Capital Contributions and Percentage Interests of the Partners as the same are adjusted from time to time to the extent necessary to reflect redemptions, Capital Contributions, the issuance of Partnership Units, the admission of any Additional Limited Partner or any Substituted Limited Partner or otherwise, which amendment and restatement, notwithstanding anything in this Agreement to the contrary, shall not be deemed an amendment to this Agreement, as long as the matter or event being reflected in Exhibit A hereto otherwise is authorized by this Agreement;
(xxiv) the determination regarding whether a payment to a Partner who exercises its Redemption Right under Section 8.06 that is assumed by the General Partner will be paid in the form of the Cash Amount or the REIT Shares Amount, except as such determination may be limited by Section 8.06;
(xxv) the collection and receipt of revenues and income of the Partnership;
(xxvi) the registration of any class of securities of the Partnership under the Securities Act or the Exchange Act, and the listing of any debt securities of the Partnership on any exchange;
(xxvii) an election to dissolve the Partnership pursuant to Section 13.01(b) hereof; and
(xxviii) the taking of any action necessary or appropriate to enable the General Partner to qualify as a member or partnerREIT (so long as the General Partner desires to maintain its qualification as a REIT).
(b) Notwithstanding any other provision of this Agreement, the Operating Company Agreement, the Delaware Act or any applicable law, rule or regulation, each Each of the Limited Partners and the Assignees and each other Person who may acquire an interest agrees that, except as provided in Partnership Securities hereby (i) approvesSection 7.03 hereof, ratifies and confirms the execution, delivery and performance by the parties thereto of the Operating Company Agreement, any other limited liability company or partnership agreement of any other Group Member, the Underwriting Agreement, the Omnibus Agreement, the Contribution Agreement and the other agreements described in or filed as exhibits to the Registration Statement that are related to the transactions contemplated by the Registration Statement; (ii) agrees that the General Partner (on its own or through any officer of the Partnership) is authorized to execute, deliver and perform the above-mentioned agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership without any further act, approval or vote of the Partners Partners, notwithstanding any other provision of this Agreement, the Act or any applicable law, rule or regulation.
(c) At all times from and after the Assignees or Effective Date, the General Partner may cause the Partnership to establish and maintain working capital and other Persons who may acquire an interest reserves in Partnership Securities; and (iii) agrees that the execution, delivery or performance by such amounts as the General Partner, any Group Member or any Affiliate of any of themin its sole and absolute discretion, of this Agreement or any agreement authorized or permitted deems appropriate and reasonable from time to time.
(d) In exercising its authority under this Agreement Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner (including the exercise General Partner) of any action taken (or not taken) by it. Except as may be provided in a separate written agreement between the Partnership and the Limited Partners, the General Partner and the Partnership shall not have liability to a Limited Partner under any circumstances as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner or any Affiliate of the General Partner of the rights accorded pursuant to Article XV)its authority under this Agreement provided, shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons has acted in good faith and pursuant to its authority under this Agreement (or any other agreements) or of any duty stated or implied by law or equityAgreement.
Appears in 2 contracts
Samples: Limited Partnership Agreement (Ready Capital Corp), Limited Partnership Agreement (ZAIS Financial Corp.)
Management. (a) The General Partner shall conduct, direct and manage all activities of the Partnership. Except as otherwise expressly provided in this Agreement, all management powers over the business and affairs of the Partnership are and shall be exclusively vested in the General Partner, and no Limited Partner or Assignee shall have any right to participate in or exercise control or management power over the business and affairs of the Partnership. The General Partner may not be removed by the Limited Partners with or without cause, except with the consent of the General Partner, which it may give or withhold at its sole and absolute discretion. In addition to the powers now or hereafter granted to a general partner of a limited partnership under applicable law or which are granted to the General Partner under any other provision of this Agreement, the General Partner, subject to Section 7.3Sections 7.3 and 7.12, shall have full power and authority to do all things and on such terms as it, in its sole discretion, may deem deemed necessary or appropriate desirable by it to conduct the business of the Partnership, to exercise all powers set forth in Section 2.5 3.2 and to effectuate the purposes set forth in Section 2.43.1, including the followingincluding:
(i) the making of any expenditures, the lending or borrowing of moneymoney (including making prepayments on loans and borrowing money to permit the Partnership to make distributions to its Partners in such amounts as will permit the Company (so long as the Company desires to maintain its qualification as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Code Section 4981) and to make distributions to its shareholders in amounts sufficient to permit the Company to maintain its REIT status), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences evidence of indebtednessindebtedness (including the securing of the same by deed, including indebtedness that is convertible into Partnership Securitiesmortgage, deed of trust or other lien or encumbrance on the Partnership’s assets) and the incurring of any other obligationsobligations it deems necessary for the conduct of the activities of the Partnership;
(ii) the making of tax, regulatory and other filingsfilings or elections, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership;
(iii) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the Partnership (including the exercise or grant of any conversion, option, privilege, or subscription right or other right available in connection with any assets at any time held by the Partnership) or the merger or other combination of the Partnership with or into another Person entity (all of the matters described in this clause (iii) being subject, however, foregoing subject to any prior approval that may be only to the extent required by Section 7.3);
(iv) the mortgage, pledge, encumbrance or hypothecation of any assets of the Partnership, the use of the assets of the Partnership (including cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms that it sees fit, including the financing of the conduct of the operations of the Partnership Group; subject to Section 7.6(a)Partnership, the Company or any of the Partnership’s or the Company’s Subsidiaries, the lending of funds to other Persons (including other Group Members), the Subsidiaries of the Partnership and/or the Company) and the repayment or guarantee of obligations of the Partnership Group and its Subsidiaries and any other Person in which it has an equity investment, and the making of capital contributions to any member of the Partnership Groupits Subsidiaries;
(v) the management, operation, leasing, landscaping, repair, alteration, demolition, disposition or improvement of any real property or improvements owned by the Partnership or any Subsidiary of the Partnership;
(vi) the negotiation, execution execution, delivery and performance of any contracts, conveyances or other instruments (including instruments that limit the liability of General Partner considers useful or necessary or convenient to the Partnership under contractual arrangements to all or particular assets conduct of the Partnership, with ’s operations or the other party to the contract to have no recourse against implementation of the General Partner or its assets Partner’s powers under this Agreement, including contracting with consultants, accountants, legal counsel, other than its interest in professional advisors and other agents and the payment of their expenses and compensation out of the Partnership, even if same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case);
(vi) the distribution of Partnership cash’s assets;
(vii) the distribution of Partnership cash or other Partnership assets in accordance with this Agreement;
(viii) holding, managing, investing and reinvesting cash and other assets of the Partnership;
(ix) the collection and receipt of revenues and income of the Partnership;
(x) the establishment of one or more divisions of the Partnership, the selection and dismissal of employees of the Partnership (including employees having who may be designated as officers with titles such as “president,” “vice president,” “secretary” and “treasurer”) ” of the Partnership), and agents, outside attorneys, accountants, consultants and contractors of the Partnership, and the determination of their compensation and other terms of employment or hiring;
(viiixi) the maintenance of such insurance for the benefit of the Partnership Group and the Partners as it deems necessary or appropriate;
(ixxii) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventureslimited liability companies, real estate investment trusts, corporations, limited liability companies entities that are treated as REITs, “taxable REIT subsidiaries” or as foreign corporations for federal income tax purposes, joint ventures or other relationships that it deems desirable (including the acquisition of interests in, and the contributions of property or the making of loans to, its or the Company’s Subsidiaries and any Group Member other Person in which it has an equity investment from time to time) subject time or the incurrence of indebtedness on behalf of such Persons or the guarantee of obligations of such Persons and the making of any tax, regulatory or other filing or election with respect to any of the restrictions set forth foregoing Persons); provided, that as long as the Company has determined to continue to qualify as a REIT, the Partnership may not engage in Section 2.4any such formation, acquisition or contribution that would cause the Company to fail to qualify as a REIT;
(xxiii) the control of any matters affecting the rights and obligations of the Partnership, including the bringing and defending settlement, compromise, submission to arbitration or any other form of actions at law dispute resolution, or in equity and otherwise engaging in abandonment of, any claim, cause of action, liability, debt or damages, due or owing to or from the conduct Partnership, the commencement or defense of litigation suits, legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, and the incurring representation of the Partnership in all suits or legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, the incurrence of legal expense expense, and the settlement of claims and litigation;
(xi) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.8);
(xiii) unless restricted or prohibited by Section 5.7, the purchase, sale or other acquisition or disposition of Partnership Securities, or the issuance of additional options, rights, warrants and appreciation rights relating to Partnership Securities; and
(xiv) the undertaking of any action in connection with the Partnership’s participation direct or indirect investment in any Group Member Subsidiary or any other Person (including the contribution or loan of funds by the Partnership to such Persons);
(xv) the determination of the fair market value of any Partnership property distributed in kind using such reasonable method of valuation as the General Partner may adopt;
(xvi) the enforcement of any rights against any Partner pursuant to representations, warranties, covenants and indemnities relating to such Partner’s contribution of property or assets to the Partnership;
(xvii) the exercise, directly or indirectly, through any attorney-in-fact acting under a general or limited power of attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(xviii) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(xix) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest pursuant to contractual or other arrangements with such Person;
(xx) the making, execution, delivery and performance of any and all deeds, leases, notes, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary, appropriate or convenient, in the judgment of the General Partner, for the accomplishment of any of the powers of the General Partner enumerated in this Agreement;
(xxi) the issuance of additional Partnership Units and other partnership interests, as appropriate, in connection with Capital Contributions by Additional Limited Partners and additional Capital Contributions by Partners pursuant to Article 4; and
(xxii) the taking of any action necessary (or appropriate by the General Partner, in its discretion) to enable the Company to qualify as a member or partnerREIT.
(b) Notwithstanding any other provision of this Agreement, the Operating Company Agreement, the Delaware Act or any applicable law, rule or regulation, each Each of the Limited Partners and the Assignees and each other Person who may acquire an interest in Partnership Securities hereby (i) approves, ratifies and confirms the execution, delivery and performance by the parties thereto of the Operating Company Agreement, any other limited liability company or partnership agreement of any other Group Member, the Underwriting Agreement, the Omnibus Agreement, the Contribution Agreement and the other agreements described in or filed as exhibits to the Registration Statement that are related to the transactions contemplated by the Registration Statement; (ii) agrees that the General Partner (on its own or through any officer of the Partnership) is authorized to execute, deliver and perform the above-mentioned agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership without any further act, approval or vote of the Partners Partners, notwithstanding any other provision of this Agreement (except as provided in Section 7.3), the Act or any applicable law, rule or regulation, to the Assignees fullest extent permitted under the Act or the other Persons who may acquire an interest in Partnership Securities; and (iii) agrees that the applicable law, rule or regulation. The execution, delivery or performance by the General Partner, any Group Member Partner or any Affiliate the Partnership of any of them, of this Agreement or any agreement authorized or permitted under this Agreement (including the exercise by the General Partner or any Affiliate of the General Partner of the rights accorded pursuant to Article XV), shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement (or any other agreements) or of any duty stated or implied by law or equity.
(c) At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain at any and all times working capital accounts and other cash or similar balances in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
(d) In exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to (except as otherwise provided by this Agreement with respect to the qualification of the Company as a REIT), take into account the tax consequences to any Partner of any action taken by it. The General Partner and the Partnership shall not be liable to a Limited Partner under any circumstances as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner taken pursuant to its authority under this Agreement and in accordance with the terms of Section 7.3.
Appears in 2 contracts
Samples: Limited Partnership Agreement (Essential Properties Realty Trust, Inc.), Limited Partnership Agreement (Essential Properties Realty Trust, Inc.)
Management. (a) The General Partner shall conduct, direct and manage all activities of the Partnership. A. Except as otherwise expressly provided in this Agreement, all management powers over the business and affairs of the Partnership are and shall be exclusively vested in the General Partner, and no Limited Partner or Assignee shall have any right to participate in or exercise control or management power over the business and affairs of the Partnership. The General Partner may not be removed by the Partners with or without cause, except with the consent of the General Partner. In addition to the powers now or hereafter granted to a general partner of a limited partnership under applicable law or which that are granted to the General Partner under any other provision of this Agreement, the General Partner, subject to the other provisions hereof including Section 7.3, shall have full power and authority to do all things and on such terms as it, in its sole discretion, may deem deemed necessary or appropriate desirable by it to conduct the business of the Partnership, to exercise all powers set forth in Section 2.5 3.2 hereof and to effectuate the purposes set forth in Section 2.43.1 hereof, including the followingincluding, without limitation:
(i) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money or selling assets to permit the Partnership to make distributions to its Partners in such amounts as will permit the General Partner (so long as the General Partner desires to maintain or restore its status as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Code Section 4981) and to make distributions to its stockholders sufficient to permit the General Partner to maintain or restore REIT status or otherwise to satisfy the REIT Requirements), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtednessindebtedness (including the securing of same by deed to secure debt, including indebtedness that is convertible into Partnership Securitiesmortgage, deed of trust or other lien or encumbrance on the Partnership’s assets) and the incurring of any other obligationsobligations that it deems necessary for the conduct of the activities of the Partnership;
(ii) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership, the registration of any class of securities of the Partnership under the Exchange Act and the listing of any debt securities of the Partnership on any exchange;
(iii) the acquisition, dispositionsale, mortgagelease, pledgetransfer, encumbranceexchange or other disposition of any, hypothecation all or exchange of any or substantially all of the assets of the Partnership (including, but not limited to, the exercise or grant of any conversion, option, privilege or subscription right or any other right available in connection with any assets at any time held by the Partnership) or the merger merger, consolidation, reorganization or other combination of the Partnership with or into another Person (the matters described in this clause (iii) being subject, however, to any prior approval that may be required by Section 7.3)entity;
(iv) the mortgage, pledge, encumbrance or hypothecation of any assets of the Partnership, the use of the assets of the Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms that it sees fit, including including, without limitation, the financing of the conduct operations and activities of the operations General Partner, the Partnership or any of the Partnership Group; subject to Section 7.6(a)Partnership’s Subsidiaries, the lending of funds to other Persons (including other Group Members)including, without limitation, the Partnership’s Subsidiaries) and the repayment or guarantee of obligations of the Partnership, its Subsidiaries and any other Person in which the Partnership Group has an equity investment, and the making of capital contributions to any member of and equity investments in the Partnership GroupPartnership’s Subsidiaries;
(v) the negotiation, execution and performance of any contracts, leases, conveyances or other instruments (including instruments that limit the liability of General Partner considers useful or necessary to the Partnership under contractual arrangements to all or particular assets conduct of the Partnership, with ’s operations or the other party to the contract to have no recourse against implementation of the General Partner or its assets Partner’s powers under this Agreement, including contracting with contractors, developers, consultants, accountants, legal counsel, other than its interest in professional advisors and other agents and the payment of their expenses and compensation out of the Partnership, even if same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case)’s assets;
(vi) the distribution of Partnership cashcash or other Partnership assets in accordance with this Agreement, the holding, management, investment and reinvestment of cash and other assets of the Partnership and the collection and receipt of revenues and income of the Partnership;
(vii) the selection maintenance of such insurance for the benefit of the Partnership and the Partners as it deems necessary or appropriate, including, without limitation, (i) casualty, liability and other insurance on the Properties and (ii) liability insurance for the Indemnitees hereunder;
(viii) the formation of, or acquisition of an interest in, and the contribution of property to, any further limited or general partnerships, limited liability companies, joint ventures or other relationships that it deems desirable (including, without limitation, the acquisition of interests in, and the contributions of property to, any Subsidiary and any other Person in which it has an equity investment from time to time); provided, however, that, as long as the General Partner has determined to continue to qualify as a REIT, the General Partner may not engage in any such formation, acquisition or contribution that would cause the General Partner to fail to qualify as a REIT within the meaning of Code Section 856(a);
(ix) the control of any matters affecting the rights and obligations of the Partnership, including the settlement, compromise, submission to arbitration or any other form of dispute resolution, or abandonment, of any claim, cause of action, liability, debt or damages, due or owing to or from the Partnership, the commencement or defense of suits, legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, and the representation of the Partnership in all suits or legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, the incurring of legal expense, and the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(x) the undertaking of any action in connection with the Partnership’s direct or indirect investment in any Subsidiary or any other Person (including, without limitation, the contribution or loan of funds by the Partnership to such Persons);
(xi) except as otherwise specifically set forth in this Agreement, the determination of the fair market value of any Partnership property distributed in-kind using such reasonable method of valuation as it may adopt; provided that such methods are otherwise consistent with the requirements of this Agreement;
(xii) the enforcement of any rights against any Partner pursuant to representations, warranties, covenants and indemnities relating to such Partner’s contribution of property or assets to the Partnership;
(xiii) the exercise, directly or indirectly, through any attorney-in-fact acting under a general or limited power-of-attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(xiv) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(xv) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest, pursuant to contractual or other arrangements with such Person;
(xvi) the making, execution and delivery of any and all deeds, leases, notes, deeds to secure debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate in the judgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement;
(xvii) the issuance of additional Partnership Units, as appropriate and in the General Partner’s sole and absolute discretion, in connection with Capital Contributions by Additional Limited Partners and additional Capital Contributions by Partners pursuant to Article IV hereof;
(xviii) the selection, designation of powers, authority and duties and dismissal of employees or personnel of the Partnership (including including, without limitation, employees or personnel having titles such as “president,” “vice president,” “secretary” and “treasurer”) and agents, outside attorneys, accountants, consultants and contractors and of the Partnership, the General Partner or the Manager the determination of their compensation and other terms of employment or service or hiring, and the delegation to any such Person the authority to conduct the business of the Partnership in accordance with the terms of this Agreement;
(viiixix) the maintenance distribution of such insurance for cash to acquire Partnership Units held by a Limited Partner in connection with a Limited Partner’s exercise of its Redemption under Section 8.6 hereof;
(xx) the benefit amendment and restatement of Exhibit A hereto to reflect accurately at all times the Partnership Group Capital Contributions and Percentage Interests of the Partners as it deems the same are adjusted from time to time to the extent necessary to reflect redemptions, Capital Contributions, the issuance of Partnership Units, the admission of any Additional Limited Partner or appropriateany Substituted Limited Partner or otherwise, which amendment and restatement, notwithstanding anything in this Agreement to the contrary, shall not be deemed an amendment to this Agreement, as long as the matter or event being reflected in Exhibit A hereto otherwise is authorized by this Agreement;
(ixxxi) an election to dissolve the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies or other relationships (including the acquisition of interests in, and the contributions of property to, any Group Member from time Partnership pursuant to time) subject to the restrictions set forth in Section 2.4;
(x) the control of any matters affecting the rights and obligations of the Partnership, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigation and the incurring of legal expense and the settlement of claims and litigation;
(xi) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.8);
(xiii) unless restricted or prohibited by Section 5.7, the purchase, sale or other acquisition or disposition of Partnership Securities, or the issuance of additional options, rights, warrants and appreciation rights relating to Partnership Securities13.1.D hereof; and
(xivxxii) the undertaking taking of any action in connection with the Partnership’s participation in any Group Member as a member necessary or partner.
(b) Notwithstanding any other provision of this Agreement, the Operating Company Agreement, the Delaware Act or any applicable law, rule or regulation, each of the Partners and the Assignees and each other Person who may acquire an interest in Partnership Securities hereby (i) approves, ratifies and confirms the execution, delivery and performance by the parties thereto of the Operating Company Agreement, any other limited liability company or partnership agreement of any other Group Member, the Underwriting Agreement, the Omnibus Agreement, the Contribution Agreement and the other agreements described in or filed as exhibits appropriate to the Registration Statement that are related to the transactions contemplated by the Registration Statement; (ii) agrees that enable the General Partner (on its own or through any officer to qualify as a REIT.
B. Each of the Partnership) Limited Partners agrees that, except as provided in Section 7.3 hereof, the General Partner is authorized to execute, deliver and perform the above-mentioned agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership without any further act, approval or vote of the Partners Partners, notwithstanding any other provision of this Agreement, the Act or any applicable law, rule or regulation, to the Assignees full extent permitted under the Act or the other Persons who may acquire an interest in Partnership Securities; and (iii) agrees that the applicable law. The execution, delivery or performance by the General Partner, any Group Member Partner or any Affiliate the Partnership of any of them, of this Agreement or any agreement authorized or permitted under this Agreement (including the exercise by the General Partner or any Affiliate of the General Partner of the rights accorded pursuant to Article XV), shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement (or any other agreements) or of any duty stated or implied by law or equity.
C. At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain working capital and other reserves in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
D. In exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner (including the General Partner) of any action taken (or not taken) by it. The General Partner and the Partnership shall not have liability to a Limited Partner for monetary damages or otherwise for losses sustained, liabilities incurred or benefits not derived by such Limited Partner in connection with such decisions; provided that the General Partner has acted in good faith and pursuant to its authority under this Agreement.
Appears in 2 contracts
Samples: Limited Partnership Agreement (Invesco Mortgage Capital Inc.), Limited Partnership Agreement (Invesco Agency Securities Inc.)
Management. (a) The General Partner shall conduct, direct and manage all activities of the Partnership. A. Except as otherwise expressly provided in this Agreement, all management powers over the business and affairs of the Partnership are and shall be exclusively vested in the General Partner, and no Limited Partner or Assignee shall have any right to participate in or exercise control or management power over the business and affairs of the Partnership. The General Partner may not be removed by the Partners with or without cause, except with the Consent of the General Partner. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or which that are granted to the General Partner under any other provision of this Agreement, the General Partner, subject to the other provisions hereof including Section 7.3, shall have full power and authority to do all things and on such terms as it, in its sole discretion, may deem deemed necessary or appropriate desirable by it to conduct the business of the Partnership, to exercise all powers set forth in Section 2.5 3.2 hereof and to effectuate the purposes set forth in Section 2.43.1 hereof, including the followingincluding, without limitation:
(i1) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money to permit the Partnership to make distributions to its Partners in such amounts as will permit the Special Limited Partner (so long as the Special Limited Partner qualifies as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Code Section 4981) and to make distributions to its shareholders sufficient to permit the Special Limited Partner to maintain REIT status or otherwise to satisfy the REIT Requirements), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtednessindebtedness (including the securing of same by deed to secure debt, including indebtedness that is convertible into Partnership Securitiesmortgage, deed of trust or other lien or encumbrance on the Partnership’s assets) and the incurring of any other obligationsobligations that it deems necessary for the conduct of the activities of the Partnership;
(ii2) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership;
(iii3) the acquisition, dispositionsale, mortgagetransfer, pledge, encumbrance, hypothecation exchange or exchange other disposition of any or all of the assets of the Partnership (including, but not limited to, the exercise or grant of any conversion, option, privilege or subscription right or any other right available in connection with any assets at any time held by the Partnership) or the merger merger, consolidation, reorganization or other combination of the Partnership with or into another Person (the matters described in this clause (iii) being subject, however, to any prior approval that may be required by Section 7.3)entity;
(iv4) the mortgage, pledge, encumbrance or hypothecation of any assets of the Partnership, the use of the assets of the Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms that it sees fit, including including, without limitation, the financing of the conduct operations and activities of the operations General Partner, the Partnership or any of the Partnership Group; subject to Section 7.6(a)Partnership’s Subsidiaries, the lending of funds to other Persons (including other Group Members)including, without limitation, the Partnership’s Subsidiaries) and the repayment or guarantee of obligations of the Partnership Group Partnership, its Subsidiaries and any other Person in which it has an equity investment, and the making of capital contributions to and equity investments in the Partnership’s Subsidiaries;
(5) the management, operation, leasing, landscaping, repair, alteration, demolition, replacement or improvement of any member Property, including, without limitation, any Contributed Property, or other asset of the Partnership Groupor any Subsidiary;
(v6) the negotiation, execution and performance of any contracts, leases, conveyances or other instruments (including instruments that limit the liability General Partner considers useful or necessary to the conduct of the Partnership’s operations or the implementation of the General Partner’s powers under this Agreement, including contracting with contractors, developers, consultants, accountants, legal counsel, other professional advisors and other agents and the payment of their expenses and compensation out of the Partnership’s assets;
(7) the distribution of Partnership under contractual arrangements to all cash or particular other Partnership assets in accordance with this Agreement, the holding, management, investment and reinvestment of cash and other assets of the Partnership, with and the other party to the contract to have no recourse against the General Partner or its assets other than its interest in collection and receipt of revenues, rents and income of the Partnership, even if same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case);
(vi) the distribution of Partnership cash;
(vii) 8) the selection and dismissal of employees of the Partnership or the General Partner (including including, without limitation, employees having titles or offices such as “president,” “vice president,” “secretary” and “treasurer”) ), and agents, outside attorneys, accountants, consultants and contractors of the Partnership or the General Partner and the determination of their compensation and other terms of employment or hiring;
(viii9) the maintenance of such insurance for the benefit of the Partnership Group and the Partners as it deems necessary or appropriate;
(ix10) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies companies, joint ventures or other relationships that it deems desirable (including including, without limitation, the acquisition of interests in, and the contributions of property to, any Group Member Subsidiary and any other Person in which it has an equity investment from time to time) subject ); provided, however, that, as long as the Special Limited Partner has determined to continue to qualify as a REIT, the restrictions set forth General Partner may not engage in any such formation, acquisition or contribution that would cause the Special Limited Partner to fail to qualify as a REIT or the General Partner or another wholly owned subsidiary of the Special Limited Partner to fail to qualify as a “qualified REIT subsidiary” within the meaning of Code Section 2.4856(i)(2);
(x11) the control of any matters affecting the rights and obligations of the Partnership, including the bringing settlement, compromise, submission to arbitration or any other form of dispute resolution, or abandonment, of any claim, cause of action, liability, debt or damages, due or owing to or from the Partnership, the commencement or defense of suits, legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, and defending the representation of actions at law the Partnership in all suits or in equity and otherwise engaging in the conduct legal proceedings, administrative proceedings, arbitrations or other forms of litigation and dispute resolution, the incurring of legal expense expense, and the settlement of claims and litigation;
(xi) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.8);
(xiii) unless restricted or prohibited by Section 5.7, the purchase, sale or other acquisition or disposition of Partnership Securities, or the issuance of additional options, rights, warrants and appreciation rights relating to Partnership Securities; and
(xiv12) the undertaking of any action in connection with the Partnership’s participation direct or indirect investment in any Group Member as a member Subsidiary or partner.any other Person (including, without limitation, the contribution or loan of funds by the Partnership to such Persons);
(b13) Notwithstanding the determination of the fair market value of any other provision Partnership property distributed in kind using such reasonable method of valuation as it may adopt; provided that such methods are otherwise consistent with the requirements of this Agreement;
(14) the enforcement of any rights against any Partner pursuant to representations, warranties, covenants and indemnities relating to such Partner’s contribution of property or assets to the Operating Company AgreementPartnership;
(15) the exercise, directly or indirectly, through any attorney- in-fact acting under a general or limited power of attorney, of any right, including the Delaware Act right to vote, appurtenant to any asset or investment held by the Partnership;
(16) the exercise of any applicable law, rule or regulation, each of the Partners and the Assignees and each other Person who may acquire an interest in Partnership Securities hereby (i) approves, ratifies and confirms the execution, delivery and performance by the parties thereto powers of the Operating Company Agreement, any other limited liability company or partnership agreement of any other Group Member, the Underwriting Agreement, the Omnibus Agreement, the Contribution Agreement and the other agreements described in or filed as exhibits to the Registration Statement that are related to the transactions contemplated by the Registration Statement; (ii) agrees that the General Partner (enumerated in this Agreement on its own behalf of or through in connection with any officer Subsidiary of the PartnershipPartnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(17) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest, pursuant to contractual or other arrangements with such Person;
(18) the making, execution and delivery of any and all deeds, leases, notes, deeds to secure debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate in the judgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement;
(19) the issuance of additional Partnership Units, as appropriate and in the General Partner’s sole and absolute discretion, in connection with Capital Contributions by Additional Limited Partners and additional Capital Contributions by Partners pursuant to Article 4 hereof; and
(20) an election to dissolve the Partnership pursuant to Section 13.1C hereof.
B. Each of the Limited Partners agrees that, except as provided in Section 7.3 hereof, the General Partner is authorized to execute, deliver and perform the above-mentioned agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership without any further act, approval or vote of the Partners Partners, notwithstanding any other provision of this Agreement (except as provided in Section 7.3 hereof), the Act or the Assignees any applicable law, rule or the other Persons who may acquire an interest in Partnership Securities; and (iii) agrees that the regulation. The execution, delivery or performance by the General Partner, any Group Member Partner or any Affiliate the Partnership of any of them, of this Agreement or any agreement authorized or permitted under this Agreement (including the exercise by the General Partner or any Affiliate of the General Partner of the rights accorded pursuant to Article XV), shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement (or any other agreements) or of any duty stated or implied by law or equity.
C. At all times from and after the date hereof, the General Partner may cause the Partnership to obtain and maintain (i) casualty, liability and other insurance on the Properties of the Partnership and (ii) liability insurance for the Indemnitees hereunder.
D. At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain working capital and other reserves in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
E. In exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner (including the General Partner) of any action taken by it. The General Partner and the Partnership shall not have liability to a Limited Partner under any circumstances as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner pursuant to its authority under this Agreement so long as the action or inaction is taken in good faith.
Appears in 2 contracts
Samples: Limited Partnership Agreement (Aimco OP L.P.), Limited Partnership Agreement (Aimco OP L.P.)
Management. (a) The General Partner shall conduct, direct and manage all activities of the Partnership. A. Except as otherwise expressly provided in this Agreement, all management powers over the business and affairs of the Partnership are and shall be exclusively vested in the General Partner, and no Limited Partner or Assignee shall have any right to participate in or exercise control or management power over the business and affairs of the Partnership. The General Partner may not be removed by the Partners with or without cause, except with the Consent of the General Partner. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or which that are granted to the General Partner under any other provision of this Agreement, the General Partner, subject to the other provisions hereof including Section 7.3, shall have full power and authority to do all things and on such terms as it, in its sole discretion, may deem deemed necessary or appropriate desirable by it to conduct the business of the Partnership, to exercise all powers set forth in Section 2.5 3.2 hereof and to effectuate the purposes set forth in Section 2.43.1 hereof, including the followingincluding, without limitation:
(i1) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money to permit the Partnership to make distributions to its Partners in such amounts as will permit the Previous General Partner (so long as the Previous General Partner qualifies as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Code Section 4981) and to make distributions to its shareholders sufficient to permit the Previous General Partner to maintain REIT status or otherwise to satisfy the REIT Requirements), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtednessindebtedness (including the securing of same by deed to secure debt, including indebtedness that is convertible into Partnership Securitiesmortgage, deed of trust or other lien or encumbrance on the Partnership's assets) and the incurring of any other obligationsobligations that it deems necessary for the conduct of the activities of the Partnership;
(ii2) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership;
(iii3) the acquisition, dispositionsale, mortgagetransfer, pledge, encumbrance, hypothecation exchange or exchange other disposition of any or all of the assets of the Partnership (including, but not limited to, the exercise or grant of any conversion, option, privilege or subscription right or any other right available in connection with any assets at any time held by the Partnership) or the merger merger, consolidation, reorganization or other combination of the Partnership with or into another Person (the matters described in this clause (iii) being subject, however, to any prior approval that may be required by Section 7.3)entity;
(iv4) the mortgage, pledge, encumbrance or hypothecation of any assets of the Partnership, the use of the assets of the Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms that it sees fit, including including, without limitation, the financing of the conduct operations and activities of the operations General Partner, the Partnership or any of the Partnership Group; subject to Section 7.6(a)Partnership's Subsidiaries, the lending of funds to other Persons (including other Group Members)including, without limitation, the Partnership's Subsidiaries) and the repayment or guarantee of obligations of the Partnership Group Partnership, its Subsidiaries and any other Person in which it has an equity investment, and the making of capital contributions to and equity investments in the Partnership's Subsidiaries;
(5) the management, operation, leasing, landscaping, repair, alteration, demolition, replacement or improvement of any member Property, including, without limitation, any Contributed Property, or other asset of the Partnership Groupor any Subsidiary;
(v6) the negotiation, execution and performance of any contracts, leases, conveyances or other instruments (including instruments that limit the liability General Partner considers useful or necessary to the conduct of the Partnership's operations or the implementation of the General Partner's powers under this Agreement, including contracting with contractors, developers, consultants, accountants, legal counsel, other professional advisors and other agents and the payment of their expenses and compensation out of the Partner ship's assets;
(7) the distribution of Partnership under contractual arrangements to all cash or particular other Partnership assets in accordance with this Agreement, the holding, management, investment and reinvestment of cash and other assets of the Partnership, with and the other party to the contract to have no recourse against the General Partner or its assets other than its interest in collection and receipt of revenues, rents and income of the Partnership, even if same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case);
(vi) the distribution of Partnership cash;
(vii) 8) the selection and dismissal of employees of the Partnership or the General Partner (including including, without limitation, employees having titles or offices such as “"president,” “" "vice president,” “" "secretary” " and “"treasurer”) "), and agents, outside attorneys, accountants, consultants and contractors of the Partnership or the General Partner and the determination of their compensation and other terms of employment or hiring;
(viii9) the maintenance of such insurance for the benefit of the Partnership Group and the Partners as it deems necessary or appropriate;
(ix10) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies companies, joint ventures or other relationships that it deems desirable (including including, without limitation, the acquisition of interests in, and the contributions of property to, any Group Member Subsidiary and any other Person in which it has an equity investment from time to time) subject ); provided, however, that, as long as the Previous General Partner has determined to continue to qualify as a REIT, the restrictions set forth General Partner may not engage in any such formation, acquisition or contribution that would cause the Previous General Partner to fail to qualify as a REIT or the General Partner to fail to qualify as a "qualified REIT subsidiary" within the meaning of Code Section 2.4856(i)(2);
(x11) the control of any matters affecting the rights and obligations of the Partnership, including the bringing settlement, compromise, submission to arbitration or any other form of dispute resolution, or abandonment, of any claim, cause of action, liability, debt or damages, due or owing to or from the Partnership, the commencement or defense of suits, legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, and defending the representation of actions at law the Partnership in all suits or in equity and otherwise engaging in the conduct legal proceedings, administrative proceedings, arbitrations or other forms of litigation and dispute resolution, the incurring of legal expense expense, and the settlement of claims and litigation;
(xi) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.8);
(xiii) unless restricted or prohibited by Section 5.7, the purchase, sale or other acquisition or disposition of Partnership Securities, or the issuance of additional options, rights, warrants and appreciation rights relating to Partnership Securities; and
(xiv12) the undertaking of any action in connection with the Partnership’s participation 's direct or indirect investment in any Group Member as a member Subsidiary or partner.any other Person (including, without limitation, the contribution or loan of funds by the Partnership to such Persons);
(b13) Notwithstanding the determination of the fair market value of any other provision Partnership property distributed in kind using such reasonable method of valuation as it may adopt; provided that such methods are otherwise consistent with the requirements of this Agreement;
(14) the enforcement of any rights against any Partner pursuant to representations, warranties, covenants and indemnities relating to such Partner's contribution of property or assets to the Operating Company AgreementPartnership;
(15) the exercise, directly or indirectly, through any attorney- in-fact acting under a general or limited power of attorney, of any right, including the Delaware Act right to vote, appurtenant to any asset or investment held by the Partnership;
(16) the exercise of any applicable law, rule or regulation, each of the Partners and the Assignees and each other Person who may acquire an interest in Partnership Securities hereby (i) approves, ratifies and confirms the execution, delivery and performance by the parties thereto powers of the Operating Company Agreement, any other limited liability company or partnership agreement of any other Group Member, the Underwriting Agreement, the Omnibus Agreement, the Contribution Agreement and the other agreements described in or filed as exhibits to the Registration Statement that are related to the transactions contemplated by the Registration Statement; (ii) agrees that the General Partner (enumerated in this Agreement on its own behalf of or through in connection with any officer Subsidiary of the PartnershipPartnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(17) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest, pursuant to contractual or other arrangements with such Person;
(18) the making, execution and delivery of any and all deeds, leases, notes, deeds to secure debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate in the judgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement;
(19) the issuance of additional Partnership Units, as appropriate and in the General Partner's sole and absolute discretion, in connection with Capital Contributions by Additional Limited Partners and additional Capital Contributions by Partners pursuant to Article 4 hereof; and
(20) an election to dissolve the Partnership pursuant to Section 13.1.C hereof.
B. Each of the Limited Partners agrees that, except as provided in Section 7.3 hereof, the General Partner is authorized to execute, deliver and perform the above-mentioned agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership without any further act, approval or vote of the Partners Partners, notwithstanding any other provision of this Agreement (except as provided in Section 7.3 hereof), the Act or the Assignees any applicable law, rule or the other Persons who may acquire an interest in Partnership Securities; and (iii) agrees that the regulation. The execution, delivery or performance by the General Partner, any Group Member Partner or any Affiliate the Partnership of any of them, of this Agreement or any agreement authorized or permitted under this Agreement (including the exercise by the General Partner or any Affiliate of the General Partner of the rights accorded pursuant to Article XV), shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement (or any other agreements) or of any duty stated or implied by law or equity.
C. At all times from and after the date hereof, the General Partner may cause the Partnership to obtain and maintain (i) casualty, liability and other insurance on the Properties of the Partnership and (ii) liability insurance for the Indemnitees hereunder.
D. At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain working capital and other reserves in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
E. In exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner (including the General Partner) of any action taken by it. The General Partner and the Partnership shall not have liability to a Limited Partner under any circumstances as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner pursuant to its authority under this Agreement so long as the action or inaction is taken in good faith.
Appears in 2 contracts
Samples: Limited Partnership Agreement (Aimco Properties Lp), Limited Partnership Agreement (Aimco Properties Lp)
Management. (a) The Except as delegated to the Manager Group as set forth in the Management Services Agreement or as otherwise provided therein or in the NEE Partners Partnership Agreement, the General Partner shall conduct, direct and manage all activities of the Partnership. Except as otherwise expressly provided in this Agreement, but without limitation on the ability of the General Partner to delegate its rights and power to other Persons, all management powers over the business and affairs of the Partnership shall be exclusively vested in the General Partner, and no Limited Partner or Assignee in its capacity as such shall have any management power over the business and affairs of the Partnership. In addition to the powers now or hereafter granted to a general partner of a limited partnership under applicable law or which that are granted to the General Partner under any other provision of this Agreement, the General Partner, subject to Section 7.3, shall have full power and authority to do all things and on such terms as it, in its sole discretion, may deem it determines to be necessary or appropriate to conduct the business of the Partnership, to exercise all powers set forth in Section 2.5 and to effectuate the purposes set forth in Section 2.4, including the following:
(i) the making of any expenditures, the lending or borrowing of money, the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtedness, including indebtedness that is convertible into or exchangeable for Partnership SecuritiesInterests, and the incurring of any other obligations;
(ii) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership;
(iii) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the Partnership or the merger or other combination of the Partnership with or into another Person (the matters described in this clause (iii) being subject, however, to any prior approval that may be required by Section 7.37.3 and Article XIV);
(iv) the use of the assets of the Partnership (including cash on hand) for any purpose consistent with the terms of this Agreement, including (A) the financing of the conduct of the operations of the Partnership Group; (B) subject to Section 7.6(a), the lending of funds to other Persons (including other Group Members), ; (C) the repayment or guarantee of obligations of the Partnership any Group Member; and (D) the making of capital contributions to any member of the Partnership GroupGroup Member;
(v) the negotiation, execution and performance of any contracts, conveyances or other instruments (including instruments that limit the liability of the Partnership under contractual arrangements to all or particular assets of the Partnership, with the other party to the contract to have having no recourse against the General Partner or its assets other than its interest in the Partnership, even if the same results in the terms of the transaction being are less favorable to the Partnership than would otherwise be the case);
(vi) the distribution of Partnership cashcash held by the Partnership;
(vii) the selection and dismissal of employees (including employees having titles such as “president,” “vice president,” “secretary” and “treasurer”) and agents, internal and outside attorneys, accountants, consultants and contractors and the determination of their compensation and other terms of employment or hiring;
(viii) the maintenance of such insurance for the benefit of the Partnership Group and Group, the Partners as it deems necessary or appropriateand Indemnitees;
(ix) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies or other relationships Persons (including the acquisition of interests in, and the contributions of property to, any Group Member from time to time) subject to the restrictions set forth in Section 2.4;
(x) the control of any matters affecting the rights and obligations of the Partnership, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigation litigation, arbitration or mediation and the incurring of legal expense and the settlement of claims and litigation;
(xi) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.8);
(xiii) unless restricted or prohibited by Section 5.7, the purchase, sale or other acquisition or disposition of Partnership SecuritiesInterests, or the issuance of additional options, rights, warrants and appreciation rights relating to Derivative Partnership Securities; andInterests;
(xivxiii) the undertaking of any action in connection with the Partnership’s participation in the management of any Group Member; and
(xiv) the entering into of agreements with any of its Affiliates to render services to a Group Member or to itself in the discharge of its duties as a member or partnerGeneral Partner of the Partnership.
(b) Notwithstanding any other provision of this Agreement, the Operating Company any Group Member Agreement, the Delaware Act or any applicable law, rule or regulation, each of the Partners and the Assignees and each other Person who may acquire an interest in Partnership Securities Interests hereby (i) approves, ratifies and confirms the execution, delivery and performance by the parties thereto of the Operating Company Agreement, any other limited liability company or partnership agreement of any other Group Member, the Underwriting Agreement, the Omnibus Agreement, the Contribution Agreement and the other agreements described in or filed as exhibits to the Registration Statement that are related to the transactions contemplated by the Registration Statement; (ii) agrees that the General Partner (on its own or through any officer of the Partnership) is authorized to execute, deliver and perform the agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership without any further act, approval or vote of the Partners or the Assignees or the other Persons who may acquire an interest in Partnership Securities; and (iii) agrees that the execution, delivery or performance by the General Partner, any Group Member or any Affiliate of any of them, them of this Agreement or any agreement authorized or permitted under this Agreement (including the exercise by the General Partner or any Affiliate of the General Partner of the rights accorded pursuant to Article XV), XVII) shall not constitute a breach by the General Partner of any duty or any other obligation of any type whatsoever that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement (or any other agreements) or of any duty stated existing at law, in equity or implied otherwise.
(c) Notwithstanding any other provision of this Agreement, the consent of the NEE Partners General Partner, which may be granted or withheld in its sole discretion, shall be required for the following actions:
(i) Sale of all or substantially all assets of the Partnership Group as set forth in Section 7.3.
(ii) Merger, consolidation, or conversion of the Partnership, as set forth in Section 14.2, or the merger, consolidation, or conversion of any other Group Member.
(iii) Dissolution of the Partnership, as set forth in Section 12.1(b), or the dissolution of any other Group Member.
(iv) Transfer by law the General Partner of all or equityany part of its General Partner Interest to another Person as set forth in Section 4.6.
(v) Amendment of this Agreement.
Appears in 2 contracts
Samples: Limited Partnership Agreement (NextEra Energy Partners, LP), Limited Partnership Agreement (NextEra Energy Partners, LP)
Management. (a) The General Partner shall conduct, direct and manage all activities of the Partnership. A. Except as otherwise expressly provided in this Agreement, all management powers over the business and affairs of the Partnership are and shall be exclusively vested in the General Partner, and no Limited Partner or Assignee shall have any right to participate in or exercise control or management power over the business and affairs of the Partnership. The General Partner may not be removed by the Limited Partners with or without cause, except with the consent of the General Partner. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or which are granted to the General Partner under any other provision of this Agreement, the General Partner, subject to Section 7.37.3 hereof, shall have full power and authority to do all things and on such terms as it, in its sole discretion, may deem deemed necessary or appropriate desirable by it to conduct the business of the Partnership, to exercise all powers set forth in Section 2.5 3.2 hereof and to effectuate the purposes set forth in Section 2.43.1 hereof, including the followingincluding, without limitation:
(i1) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtednessindebtedness (including the securing of same by deed to secure debt, including indebtedness that is convertible into Partnership Securitiesmortgage, deed of trust or other lien or encumbrance on the Partnership's assets) and the incurring of any other obligationsobligations it deems necessary for the conduct of the activities of the Partnership;
(ii2) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership;
(iii3) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the Partnership (including the exercise or grant of any conversion, option, privilege, or subscription right or other right available in connection with any assets at any time held by the Partnership) or the merger or other combination of the Partnership with or into another Person (the matters described in this clause (iii) being subject, however, to any prior approval that may be required by Section 7.3)entity;
(iv4) the use of the assets of the Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms it sees fit, including including, without limitation, the financing of the conduct of the operations of the General Partner, the Partnership Group; subject to Section 7.6(a)or any of the Partnership's Subsidiaries, the lending of funds to other Persons (including other Group Members)including, without limitation, the Partnership's Subsidiaries) and the repayment or guarantee of obligations of the Partnership Group and its Subsidiaries and any other Person in which it has an equity investment and the making of capital contributions to any member of the Partnership Groupits Subsidiaries;
(v5) the management, operation, leasing, landscaping, repair, alteration, demolition or improvement of any real property or improvements owned by the General Partner, the Partnership of any of the Partnership's Subsidiaries;
(6) the negotiation, execution execution, and the performance of any contracts, conveyances or other instruments (including instruments that limit the liability of General Partner considers useful or necessary to the Partnership under contractual arrangements to all or particular assets conduct of the Partnership, with 's operations or the other party to the contract to have no recourse against implementation of the General Partner or its assets Partner's powers under this Agreement, including contracting with contractors, developers, consultants, accountants, legal counsel, other than its interest in professional advisors and other agents and the payment of their expenses and compensation out of the Partnership, even if same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case)'s assets;
(vi7) the distribution of Partnership cashcash or other Partnership assets in accordance with this Agreement;
(vii8) holding, managing, investing and reinvesting cash and other assets of the Partnership;
(9) the collection and receipt of revenues and income of the Partnership;
(10) the establishment of one or more divisions of the Partnership, the selection and dismissal of employees of the Partnership, any division of the Partnership, or the General Partner (including including, without limitation, employees having titles such as “"president,” “" "vice president,” “" "secretary” " and “"treasurer”) " of the Partnership, any division of the Partnership, or the General Partner), and agents, outside attorneys, accountants, consultants and contractors of the General Partner, the Partnership or any division of the Partnership, and the determination of their compensation and other terms of employment or hiring;
(viii11) the maintenance of such insurance for the benefit of the Partnership Group and the Partners as it deems necessary or appropriate;
(ix12) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies ventures or other relationships that it deems desirable (including including, without limitation, the acquisition of interests in, and the contributions of property to, its Subsidiaries and any Group Member other Person in which it has an equity investment from time to time) subject to the restrictions set forth in Section 2.4);
(x13) the control of any matters affecting the rights and obligations of the Partnership, including the bringing settlement, compromise, submission to arbitration or any other form of dispute resolution, or abandonment of any claim, cause of action, liability, debt or damages due or owing to or from the Partnership, the commencement or defense of suits, legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, and defending the representation of actions at law the Partnership in all suits or in equity and otherwise engaging in the conduct legal proceedings, administrative proceedings, arbitrations or other forms of litigation and dispute resolution, the incurring of legal expense expense, and the settlement of claims and litigation;
(xi) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.8);
(xiii) unless restricted or prohibited by Section 5.7, the purchase, sale or other acquisition or disposition of Partnership Securities, or the issuance of additional options, rights, warrants and appreciation rights relating to Partnership Securities; and
(xiv14) the undertaking of any action in connection with the Partnership’s participation 's direct or indirect investment in its Subsidiaries or any Group Member other Person (including, without limitation, the contribution or loan of funds by the Partnership to such Persons);
(15) the determination of the fair market value of any Partnership property distributed in kind using such reasonable method of valuation as it may adopt;
(16) the exercise, directly or indirectly through any attorney-in-fact acting under a member general or partnerlimited power of attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(17) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(18) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest pursuant to contractual or other arrangements with such Person;
(19) the making, execution and delivery of any and all deeds, leases, notes, deeds to secure debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate in the judgment of the General Partner for the accomplishment of any of the powers of the General Partner; and
(20) the distribution of cash to acquire Partnership Units held by a Limited Partner in connection with a Limited Partner's exercise of its Redemption Right under Section 8.6.
(b) Notwithstanding any other provision of this Agreement, the Operating Company Agreement, the Delaware Act or any applicable law, rule or regulation, each B. Each of the Limited Partners and the Assignees and each other Person who may acquire an interest in Partnership Securities hereby (i) approves, ratifies and confirms the execution, delivery and performance by the parties thereto of the Operating Company Agreement, any other limited liability company or partnership agreement of any other Group Member, the Underwriting Agreement, the Omnibus Agreement, the Contribution Agreement and the other agreements described in or filed as exhibits to the Registration Statement that are related to the transactions contemplated by the Registration Statement; (ii) agrees that the General Partner (on its own or through any officer of the Partnership) is authorized to execute, deliver and perform the above-mentioned agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership without any further act, approval or vote of the Partners Partners, notwithstanding any other provision of this Agreement, the Act or any applicable law, rule or regulation, to the Assignees fullest extent permitted under the Act or the other Persons who may acquire an interest in Partnership Securities; and (iii) agrees that the applicable law. The execution, delivery or performance by the General Partner, any Group Member Partner or any Affiliate the Partnership of any of them, of this Agreement or any agreement authorized or permitted under this Agreement (including the exercise by the General Partner or any Affiliate of the General Partner of the rights accorded pursuant to Article XV), shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any an other Persons under this Agreement (or any other agreements) or of any duty stated or implied by law or equity.
C. At all times from and after the date hereof, the General Partner at the expense of the Partnership, may or may not, cause the Partnership to obtain and maintain (i) casualty, liability and other insurance on the properties of the Partnership and (ii) liability insurance for the Indemnitees hereunder.
D. At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain at any and all times working capital accounts and other cash or similar balances in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
E. The General Partner shall have the full power and authority in the name and on behalf of the Partnership in its capacity as the General Partner, to take all such actions and to execute, deliver, and file all such agreements, instruments, reports and documents as may be necessary or advisable in connection with the formation of the General Partner, the issuance of Units in connection with a proposed transaction or any transactions described in or contemplated by the General Partner's Registration Statement on Form S-1 as may be filed with the Securities and Exchange Commission.
F. Notwithstanding anything to the contrary contained in this Agreement, any agreement of merger or consolidation of the Partnership entered into in accordance with the provisions of this Agreement may, as provided in Section 17- 211(g) of the Delaware Revised Uniform Limited Partnership Act, (1) effect any amendment to this Agreement or (2) effect the adoption of a new partnership agreement for the Partnership if it is the surviving or resulting limited partnership in the merger or consolidation (provided that no such amendment shall be so effected if it would, under Section 7.3 hereof, require the consent of the Limited Partners (unless the requisite consent or consents shall be obtained), and no provision shall be included in any such new partnership agreement if such provision would, under Section 7.3 hereof, require the consent of the Limited Partners if it were being incorporated in this Agreement by amendment (unless the requisite consent shall be obtained).
Appears in 2 contracts
Samples: Agreement of Limited Partnership (Cavanaughs Hospitality Corp), Agreement of Limited Partnership (Cavanaughs Hospitality Corp)
Management. (a) The General Partner shall conduct, direct and manage all activities of the Partnership. A. Except as otherwise expressly provided in this Agreement, all management powers over the business and affairs of the Partnership are and shall be exclusively vested in the General Partner, and no Limited Partner or Assignee shall have any right to participate in or exercise control or management power over the business and affairs of the Partnership. The General Partner may not be removed by the Partners with or without cause, except with the consent of the General Partner. In addition to the powers now or hereafter granted to a general partner of a limited partnership under applicable law or which that are granted to the General Partner under any other provision of this Agreement, the General Partner, subject to the other provisions hereof including Section 7.3, shall have full power and authority to do all things and on such terms as it, in its sole discretion, may deem deemed necessary or appropriate desirable by it to conduct the business of the Partnership, to exercise all powers set forth in Section 2.5 3.2 hereof and to effectuate the purposes set forth in Section 2.43.1 hereof, including the followingincluding, without limitation:
(i1) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money or selling assets to permit the Partnership to make distributions to its Partners in such amounts as will permit the General Partner (so long as the General Partner desires to maintain or restore its status as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Code Section 4981) and to make distributions to its stockholders sufficient to permit the General Partner to maintain or restore REIT status or otherwise to satisfy the REIT Requirements), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtednessindebtedness (including the securing of same by deed to secure debt, including indebtedness that is convertible into Partnership Securitiesmortgage, deed of trust or other lien or encumbrance on the Partnership’s assets) and the incurring of any other obligationsobligations that it deems necessary for the conduct of the activities of the Partnership;
(ii2) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership;
(iii3) the acquisition, dispositionsale, mortgagelease, pledgetransfer, encumbranceexchange or other disposition of any, hypothecation all or exchange of any or substantially all of the assets of the Partnership (including, but not limited to, the exercise or grant of any conversion, option, privilege or subscription right or any other right available in connection with any assets at any time held by the Partnership) or the merger merger, consolidation, reorganization or other combination of the Partnership with or into another Person (the matters described in this clause (iii) being subject, however, to any prior approval that may be required by Section 7.3)entity;
(iv4) the mortgage, pledge, encumbrance or hypothecation of any assets of the Partnership, the use of the assets of the Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms that it sees fit, including including, without limitation, the financing of the conduct operations and activities of the operations General Partner, the Partnership or any of the Partnership Group; subject to Section 7.6(a)Partnership’s Subsidiaries, the lending of funds to other Persons (including other Group Members)including, without limitation, the Partnership’s Subsidiaries) and the repayment or guarantee of obligations of the Partnership, its Subsidiaries and any other Person in which the Partnership Group has an equity investment, and the making of capital contributions to and equity investments in the Partnership’s Subsidiaries;
(5) the management, operation, leasing, landscaping, repair, alteration, demolition, replacement or improvement of any member Property, including, without limitation, any Contributed Property, or other asset of the Partnership Groupor any Subsidiary, whether pursuant to a Services Agreement or otherwise;
(v6) the negotiation, execution and performance of any contracts, leases, conveyances or other instruments (including instruments that limit the liability General Partner considers useful or necessary to the conduct of the Partnership’s operations or the implementation of the General Partner’s powers under this Agreement, including contracting with contractors, developers, consultants, accountants, legal counsel, other professional advisors and other agents and the payment of their expenses and compensation out of the Partnership’s assets;
(7) the distribution of Partnership under contractual arrangements to all cash or particular other Partnership assets in accordance with this Agreement, the holding, management, investment and reinvestment of cash and other assets of the Partnership, with and the other party to the contract to have no recourse against the General Partner or its assets other than its interest in collection and receipt of revenues, rents and income of the Partnership, even if same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case);
(vi) the distribution of Partnership cash;
(vii) the selection and dismissal of employees (including employees having titles such as “president,” “vice president,” “secretary” and “treasurer”) and agents, outside attorneys, accountants, consultants and contractors and the determination of their compensation and other terms of employment or hiring;
(viii) 8) the maintenance of such insurance for the benefit of the Partnership Group and the Partners as it deems necessary or appropriate, including, without limitation, (i) casualty, liability and other insurance on the Properties and (ii) liability insurance for the Indemnitees hereunder;
(ix9) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies companies, joint ventures or other relationships that it deems desirable (including including, without limitation, the acquisition of interests in, and the contributions of property to, any Group Member Subsidiary and any other Person in which it has an equity investment from time to time) subject ); provided, however, that, as long as the General Partner has determined to continue to qualify as a REIT, the restrictions set forth General Partner may not engage in any such formation, acquisition or contribution that would cause the General Partner to fail to qualify as a REIT within the meaning of Code Section 2.4856(a);
(x10) the control of any matters affecting the rights and obligations of the Partnership, including the bringing settlement, compromise, submission to arbitration or any other form of dispute resolution, or abandonment, of any claim, cause of action, liability, debt or damages, due or owing to or from the Partnership, the commencement or defense of suits, legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, and defending the representation of actions at law the Partnership in all suits or in equity and otherwise engaging in the conduct legal proceedings, administrative proceedings, arbitrations or other forms of litigation and dispute resolution, the incurring of legal expense expense, and the settlement of claims and litigation;
(xi) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.8);
(xiii) unless restricted or prohibited by Section 5.7, the purchase, sale or other acquisition or disposition of Partnership Securities, or the issuance of additional options, rights, warrants and appreciation rights relating to Partnership Securities; and
(xiv11) the undertaking of any action in connection with the Partnership’s participation direct or indirect investment in any Group Member as a member Subsidiary or partner.any other Person (including, without limitation, the contribution or loan of funds by the Partnership to such Persons);
(b12) Notwithstanding any other provision of except as otherwise specifically set forth in this Agreement, the Operating Company Agreement, the Delaware Act or any applicable law, rule or regulation, each determination of the Partners fair market value of any Partnership property distributed in kind using such reasonable method of valuation as it may adopt; provided that such methods are otherwise consistent with the requirements of this Agreement;
(13) the enforcement of any rights against any Partner pursuant to representations, warranties, covenants and indemnities relating to such Partner’s contribution of property or assets to the Assignees and each other Person who may acquire an interest in Partnership Securities hereby Partnership;
(i14) approvesthe exercise, ratifies and confirms directly or indirectly, through any attorney-in-fact acting under a general or limited power of attorney, of any right, including the executionright to vote, delivery and performance appurtenant to any asset or investment held by the parties thereto Partnership;
(15) the exercise of any of the Operating Company Agreement, any other limited liability company or partnership agreement powers of any other Group Member, the Underwriting Agreement, the Omnibus Agreement, the Contribution Agreement and the other agreements described in or filed as exhibits to the Registration Statement that are related to the transactions contemplated by the Registration Statement; (ii) agrees that the General Partner (enumerated in this Agreement on its own behalf of or through in connection with any officer Subsidiary of the PartnershipPartnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(16) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest, pursuant to contractual or other arrangements with such Person;
(17) the making, execution and delivery of any and all deeds, leases, notes, deeds to secure debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate in the judgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement;
(18) the issuance of additional Partnership Units, as appropriate and in the General Partner’s sole and absolute discretion, in connection with Capital Contributions by Additional Limited Partners and additional Capital Contributions by Partners pursuant to Article 4 hereof;
(19) the selection and dismissal of Company Employees (including, without limitation, employees having titles or offices such as president, vice president, secretary and treasurer), and agents, outside attorneys, accountants, consultants and contractors of the Partnership or the General Partner, the determination of their compensation and other terms of employment or hiring and the delegation to any such Company Employee the authority to conduct the business of the Partnership in accordance with the terms of this Agreement; and
(20) an election to dissolve the Partnership pursuant to Section 13.1.C hereof.
B. Each of the Limited Partners agrees that, except as provided in Section 7.3 hereof, the General Partner is authorized to execute, deliver and perform the above-mentioned agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership without any further act, approval or vote of the Partners Partners, notwithstanding any other provision of this Agreement, the Act or the Assignees any applicable law, rule or the other Persons who may acquire an interest in Partnership Securities; and (iii) agrees that the regulation. The execution, delivery or performance by the General Partner, any Group Member Partner or any Affiliate the Partnership of any of them, of this Agreement or any agreement authorized or permitted under this Agreement (including the exercise by the General Partner or any Affiliate of the General Partner of the rights accorded pursuant to Article XV), shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement (or any other agreements) or of any duty stated or implied by law or equity.
C. At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain working capital and other reserves in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
D. In exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner (including the General Partner) of any action taken by it. The General Partner and the Partnership shall not have liability to a Limited Partner under any circumstances as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner pursuant to its authority under this Agreement.
Appears in 2 contracts
Samples: Agreement of Limited Partnership (Hilltop Holdings Inc.), Limited Partnership Agreement (Affordable Residential Communities Inc)
Management. (a) The General Partner shall conduct, direct and manage all activities of the Partnership. A. Except as otherwise expressly provided in this Agreement, all management powers over the business and affairs of the Partnership are and shall be exclusively vested in the -25- 30 General Partner, and no Limited Partner or Assignee shall have any right to participate in or exercise control or management power over the business and affairs of the Partnership. The General Partner may not be removed by the Limited Partners with or without cause. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or which are granted to the General Partner under any other provision of this Agreement, the General Partner, subject to Section 7.3, shall have full power and authority to do all things and on such terms as it, in its sole discretion, may deem deemed necessary or appropriate desirable by it to conduct the business of the Partnership, to exercise all powers set forth in Section 2.5 3.2 hereof and to effectuate the purposes set forth in Section 2.43.1 hereof, including the followingincluding, without limitation:
(i1) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money to permit the Partnership to make distributions to its Partners in such amounts as will permit the General Partner (so long as the General Partner qualifies as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Section 4981 of the Code) and to make distributions to its shareholders in amounts sufficient to permit the General Partner to maintain REIT status), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences evidence of indebtednessindebtedness (including the securing of the same by deed, including indebtedness that is convertible into Partnership Securitiesmortgage, deed of trust or other lien or encumbrance on the Partnership's assets) and the incurring of any other obligationsobligations it deems necessary for the conduct of the activities of the Partnership;
(ii2) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership;
(iii3) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the Partnership (including the exercise or grant of any conversion, option, privilege, or subscription right or other right available in connection with any assets at any time held by the Partnership) or the merger or other combination of the Partnership with or into another Person (the matters described in this clause (iii) being subject, however, to any prior approval that may be required by Section 7.3)entity;
(iv4) the use of the assets of the Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms it sees fit, including including, without limitation, the financing of the conduct of the operations of the General Partner, the Partnership Group; subject to Section 7.6(a)or any of the Partnership's Subsidiaries, the lending of funds to other Persons (including other Group Members)including, without limitation, the Subsidiaries of the Partnership and/or the General Partner) and the repayment or guarantee of obligations of the Partnership Group and its Subsidiaries and any other Person in which it has an equity investment, and the making of capital contributions to its Subsidiaries, the holding of any
(5) the management, operation, leasing, collection of rents, marketing, landscaping, repair, alteration, renovation, rehabilitation, demolition or improvement of the Original Properties or any member other real property or improvements owned by the Partnership or any Subsidiary of the Partnership Groupand the performance of any and other acts necessary or appropriate to the operation of such properties, including, without limitation, applications for rezoning or objections to rezoning of such properties;
(v6) the negotiation, execution execution, and performance of any contracts, conveyances or other instruments (including instruments that limit the liability General Partner considers useful or necessary to the conduct of the Partnership's operations or the implementation of the General Partner's powers under this Agreement, including, without limitation, the execution and delivery of leases on behalf of or in the name of the Partnership, contracting with contractors, developers, consultants, accountants, legal counsel, other professional advisors and other agents and the payment of their expenses and compensation out of the Partnership's assets;
(7) the opening and closing of bank accounts, the investment of Partnership under contractual arrangements to all funds in securities, certificates of deposit and other instruments, and the distribution of Partnership cash or particular other Partnership assets in accordance with this Agreement;
(8) the holding, managing, investing and reinvesting cash and other assets of the Partnership, with ;
(9) the other party to collection and receipt of revenues and income of the contract to have no recourse against Partnership;
(10) the General Partner establishment of one or its assets other than its interest in more divisions of the Partnership, even if same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case);
(vi) the distribution of Partnership cash;
(vii) the selection and dismissal of employees of the Partnership (including including, without limitation, employees having titles such as “"president,” “" "vice president,” “" "secretary” " and “"treasurer”) " of the Partnership), and agents, outside attorneys, accountants, consultants and contractors of the Partnership, and the determination of their compensation and other terms of employment or hiringhiring (whether or not any of the foregoing are also employed by, consultants to, independent contractors for, or otherwise do business with the General Partner or its Affiliates in related or unrelated matters);
(viii11) the maintenance of such insurance for the benefit of the Partnership Group and the Partners as it deems necessary or appropriateappropriate (whether or not such is done as part of a group, combined or other policy or policies under which the Partnership and the General Partner (or its Affiliates) are also insured, so -27- 32 long as the General Partner fairly allocates the expense thereof among the covered parties);
(ix12) the formation of, or acquisition of an interest in, and the contribution of some or all of property and the making of loans (or any part thereof or interest therein) to, any further limited or general partnerships, joint ventures, corporations, limited liability companies ventures or other relationships that it deems desirable (including including, without limitation, the acquisition of interests in, and the contributions of property to, its Subsidiaries and any Group Member other Person in which it has an equity investment from time to time) subject to the restrictions set forth in Section 2.4);
(x13) the control of any and all matters affecting the rights and obligations of the Partnership, including the bringing settlement, compromise, submission to arbitration or any other form of dispute resolution, or abandonment of, any claim, cause of action, liability, debt or damages, due or owing to or from the Partnership, the commencement or defense of suits, legal proceedings, administrative proceedings, arbitration or other forms of dispute resolution, and defending the representation of actions at law the Partnership in all suits or in equity and otherwise engaging in the conduct legal proceedings, administrative proceedings, arbitrations or other forms of litigation and dispute resolution, the incurring of legal expense expense, and the settlement of claims and litigation;
(xi) the indemnification of any Person against liabilities and contingencies to the extent permitted by lawlaw and consistent with the terms of this Agreement, including in each and all of the foregoing instances any such matter or thing in which the General Partner or its Affiliates have a direct interest;
(xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.8);
(xiii) unless restricted or prohibited by Section 5.7, the purchase, sale or other acquisition or disposition of Partnership Securities, or the issuance of additional options, rights, warrants and appreciation rights relating to Partnership Securities; and
(xiv14) the undertaking of any action in connection with the Partnership’s participation 's direct or indirect investment in its Subsidiaries or any Group Member other Person (including without limitation, the contribution or loan of funds by the Partnership to such Persons);
(15) the determination of the fair market value of any Partnership property distributed in kind using such reasonable method of valuation as the General Partner may adopt;
(16) the exercise, directly or indirectly, through any attorney-in-fact acting under a member general or partnerlimited power of attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(17) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or an interest jointly with any such Subsidiary or other Person;
(18) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in
(19) the making, execution and delivery of any and all deeds, leases, notes, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate, in the judgment of the General Partner, for the accomplishment of any of the powers of the General Partner enumerated in this Agreement; and
(20) the issuance of additional Limited Partnership Units or Partnership Interests, as appropriate, in connection with Capital Contributions by Additional Limited Partners and additional Capital Contributions by Partners pursuant to Article 4 hereof.
(b) Notwithstanding any other provision of this Agreement, the Operating Company Agreement, the Delaware Act or any applicable law, rule or regulation, each B. Each of the Limited Partners and the Assignees and each other Person who may acquire an interest in Partnership Securities hereby (i) approves, ratifies and confirms the execution, delivery and performance by the parties thereto of the Operating Company Agreement, any other limited liability company or partnership agreement of any other Group Member, the Underwriting Agreement, the Omnibus Agreement, the Contribution Agreement and the other agreements described in or filed as exhibits to the Registration Statement that are related to the transactions contemplated by the Registration Statement; (ii) agrees that the General Partner (on its own or through any officer of the Partnership) is authorized to execute, deliver and perform the above-mentioned agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership without any further act, approval or vote of the Partners Partners, notwithstanding any other provision of this Agreement, the Act or any applicable law, rule or regulation, to the Assignees fullest extent permitted under the Act or the other Persons who may acquire an interest in Partnership Securities; and (iii) agrees that the applicable law, rule or regulation. The execution, delivery or performance by the General Partner, any Group Member Partner or any Affiliate the Partnership of any of them, of this Agreement or any agreement authorized or permitted under this Agreement (including the exercise by the General Partner or any Affiliate of the General Partner of the rights accorded pursuant to Article XV), shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement (or any other agreements) or of any duty stated or implied by law or equity.
C. At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain at any and all times working capital accounts and other cash or similar balances in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
D. In exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner of any action taken by it. The General Partner and the Partnership shall not have liability to a Limited Partner under any circumstances as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner taken pursuant to its authority under this Agreement and in accordance with the terms hereof.
Appears in 1 contract
Samples: Limited Partnership Agreement (Pacific Gulf Properties Inc)
Management. (a) The General Partner shall conduct, direct and manage all activities of the Partnership. A. Except as otherwise expressly provided in this Agreement, all management powers over the business and affairs of the Partnership shall be are exclusively vested in the General Partner, and no Limited Partner or Assignee shall have any right to participate in or exercise control or management power over the business and affairs of the Partnership. The General Partner may not be removed by the Limited Partners with or without cause, except with the consent of the General Partner. In addition to the powers now or hereafter granted a general partner of a limited partnership under the Act and other applicable law or which are granted to the General Partner under any other provision of this Agreement, the General Partner, subject to the other provisions hereof including Section 7.3, shall have full power and authority to do all things and on such terms as it, in its sole discretion, may deem deemed necessary or appropriate desirable by it to conduct the business of the Partnership, to exercise all powers set forth in Section 2.5 3.2 hereof and to effectuate the purposes set forth in Section 2.43.1 hereof, including the followingincluding, without limitation:
(i1) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans, borrowing money to fund operations through reverse repurchase agreements and other forms of financings, and borrowing money to permit the Partnership to make distributions to its Partners in such amounts as will permit the General Partner (so long as the General Partner has determined to qualify as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Section 4981 of the Code) and to make distributions to its stockholders sufficient to permit the General Partner to maintain REIT status), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtedness, indebtedness (including indebtedness that is convertible into Partnership Securities, the securing of same by pledge or other lien or encumbrance on all or any of the Partnership's assets) and the incurring of any other obligationsobligations it deems necessary for the conduct of the activities of the Partnership;
(ii2) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership;
(iii3) the acquisitionpurchase, dispositionorigination, mortgageholding, pledgefinancing, encumbrancesale or securitization (including, hypothecation without limitation, by issuing or exchange causing the issuance of CMOs and REMICs) of any Mortgage Assets or all of the other assets of the Partnership Partnership, or the merger or other combination of the Partnership with or into another Person (the matters described in this clause (iii) being subject, however, to any prior approval that may be required by Section 7.3)entity;
(iv4) the use pledge, hypothecation or other encumbrance of the all or any assets of the Partnership (including cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms it sees fit, including including, without limitation, the financing of the conduct of or the operations of the Partnership Group; subject to Section 7.6(a)General Partner or the Partnership, the lending of funds to other Persons (including other Group Members)including, without limitation, the General Partner (if necessary to permit the financing or capitalization of a subsidiary of the General Partner or the Partnership) and any Subsidiaries of the Partnership) and the repayment or guarantee of obligations of the Partnership Group Partnership, any of its Subsidiaries and the making of capital contributions to any member of the Partnership Groupother Person in which it has an equity investment;
(v5) the negotiation, execution execution, and performance of any contracts, conveyances or other instruments (including instruments documents, instruments, agreements or other writings that limit the liability of General Partner considers useful or necessary to the Partnership under contractual arrangements to all or particular assets conduct of the Partnership, with 's operations or the other party to the contract to have no recourse against implementation of the General Partner or its assets other than its interest in the Partnership, even if same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case)Partner's powers under this Agreement;
(vi6) the distribution of Partnership cashcash or other Partnership assets in accordance with this Agreement;
(vii7) the selection and dismissal of employees of the Partnership (including including, without limitation, employees having titles such as “"president,” “" "vice president,” “" "secretary” " and “"treasurer”) "), and agents, outside attorneys, accountants, consultants and contractors and of the Partnership, the determination of their compensation and other terms of employment or hiring, including waivers of conflicts of interest and the payment of their expenses and compensation out of the Partnership's assets;
(viii) 8) the maintenance of such insurance for the benefit of the Partnership Group and the Partners as it deems necessary or appropriate;
(ix9) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies ventures or other relationships that it deems desirable (including including, without limitation, the acquisition of interests in, and the contributions of property toto HCP, any Group Member Subsidiary of HCP or the Partnership, and any other Person in which it has an equity investment from time to time) subject ); provided that, as long as the General Partner has determined to continue to qualify as a REIT, the restrictions set forth Partnership may not engage in Section 2.4any such formation, acquisition or contribution that would cause the General Partner to fail to qualify as a REIT;
(x10) the control of any matters affecting the rights and obligations of the Partnership, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigation and the incurring of legal expense and the settlement of claims and litigation;
(xi) , and the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.8);
(xiii) unless restricted or prohibited by Section 5.7, the purchase, sale or other acquisition or disposition of Partnership Securities, or the issuance of additional options, rights, warrants and appreciation rights relating to Partnership Securities; and
(xiv11) the undertaking of any action in connection with the Partnership’s participation 's direct or indirect investment in any Group Member as a member Person (including, without limitation, contributing or partner.loaning Partnership funds to, incurring indebtedness on behalf of, or guarantying the obligations of any such Persons);
(b12) Notwithstanding any subject to the other provision of provisions in this Agreement, the Operating determination of the fair market value of any Partnership property distributed in kind using such reasonable method of valuation as it may adopt, provided that such methods are otherwise consistent with requirements of this Agreement;
(13) the engagement in hedging activities to the extent consistent with the Company's continued qualification as a REIT, including, without limitation, mandatory and optional forward selling of Mortgage Loans and Mortgage-Backed Securities, interest rate caps and floors and the buying and selling of futures and options on futures;
(14) holding, managing, investing and reinvesting cash and other assets of the Partnership;
(15) the collection and receipt of revenues and income of the Partnership;
(16) the exercise, directly or indirectly through any attorney-in-fact acting under a general or limited power of attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(17) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(18) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest, pursuant to contractual or other arrangements with such Person;
(19) the deposit, investment and reinvestment of Company cash in such accounts and funds as the General Partner shall determine to be appropriate pending the distribution of such cash or the use of such cash for Company purposes; and
(20) the making, execution and delivery of any and all purchase and sale agreements, loan or other financing agreements (including, without limitation, reverse repurchase agreements), deeds and leases (including, without limitation, to property acquired upon or in lieu of the foreclosure of Mortgage Assets), notes, employment and consulting agreements, management agreements, security agreements, conveyances, contracts (including, without limitation, hedging contracts), guarantees, warranties, indemnities, waivers, releases, legal instruments, certificates or other writings necessary or appropriate in the judgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement, including, without limitation, in connection with the Delaware Act purchase, origination, holding, financing, hedging, sale or securitization (including, without limitation, by issuing or causing the issuance of CMOs and REMICs) of any applicable law, rule Mortgage Assets or regulation, each other assets of the Partners and the Assignees and each other Person who may acquire an interest in Partnership Securities hereby (i) approves, ratifies and confirms the execution, delivery and performance by the parties thereto Partnership.
B. Each of the Operating Company Agreement, any other limited liability company or partnership agreement of any other Group Member, the Underwriting Agreement, the Omnibus Agreement, the Contribution Agreement and the other agreements described in or filed as exhibits to the Registration Statement that are related to the transactions contemplated by the Registration Statement; (ii) Limited Partners agrees that the General Partner (on its own or through any officer of the Partnership) is authorized to execute, deliver and perform the above-mentioned agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership without any further act, approval or vote of the Partners or the Assignees or the other Persons who may acquire an interest in Partnership Securities; and (iii) agrees that the executionpartners, delivery or performance by the General Partner, notwithstanding any Group Member or any Affiliate of any of them, of this Agreement or any agreement authorized or permitted under this Agreement (including the exercise by the General Partner or any Affiliate of the General Partner of the rights accorded pursuant to Article XV), shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement (or any other agreements) or of any duty stated or implied by law or equity.other
Appears in 1 contract
Samples: Limited Partnership Agreement (Hanover Capital Holdings Inc)
Management. (a) The General Partner shall conduct, direct and manage all activities of the Partnership. A. Except as otherwise expressly provided in this Agreement, all management powers over the business and affairs of the Partnership are and shall be exclusively vested in the General Partner, and no Limited Partner or Assignee shall have any right to participate in or exercise control or management power over the business and affairs of the Partnership. The General Partner may not be removed by the Partners with or without cause, except with the consent of the General Partner. In addition to the powers now or hereafter granted to a general partner of a limited partnership under applicable law or which that are granted to the General Partner under any other provision of this Agreement, the General Partner, subject to the other provisions hereof including Section 7.3, shall have full power and authority to do all things and on such terms as it, in its sole discretion, may deem deemed necessary or appropriate desirable by it to conduct the business of the Partnership, to exercise all powers set forth in Section 2.5 3.2 hereof and to effectuate the purposes set forth in Section 2.43.1 hereof, including the followingincluding, without limitation:
(i) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money or selling assets to permit the Partnership to make distributions to its Partners in such amounts as will permit the Parent (so long as the Parent desires to maintain or restore its status as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Code Section 4981) and to make distributions to its stockholders sufficient to permit the Parent to maintain or restore REIT status or otherwise to satisfy the REIT Requirements), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtednessindebtedness (including the securing of same by deed to secure debt, including indebtedness that is convertible into Partnership Securitiesmortgage, deed of trust or other lien or encumbrance on the Partnership’s assets) and the incurring of any other obligations;obligations that it deems necessary for the conduct of the activities of the Partnership; Back to Contents
(ii) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership, the registration of any class of securities of the Partnership under the Exchange Act and the listing of any debt securities of the Partnership on any exchange;
(iii) the acquisition, dispositionsale, mortgagelease, pledgetransfer, encumbranceexchange or other disposition of any, hypothecation all or exchange of any or substantially all of the assets of the Partnership (including, but not limited to, the exercise or grant of any conversion, option, privilege or subscription right or any other right available in connection with any assets at any time held by the Partnership) or the merger merger, consolidation, reorganization or other combination of the Partnership with or into another Person (the matters described in this clause (iii) being subject, however, to any prior approval that may be required by Section 7.3)entity;
(iv) the mortgage, pledge, encumbrance or hypothecation of any assets of the Partnership, the use of the assets of the Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms that it sees fit, including including, without limitation, the financing of the conduct operations and activities of the operations General Partner, the Partnership or any of the Partnership Group; subject to Section 7.6(a)Partnership’s Subsidiaries, the lending of funds to other Persons (including other Group Members)including, without limitation, the Partnership’s Subsidiaries) and the repayment or guarantee of obligations of the Partnership, its Subsidiaries and any other Person in which the Partnership Group has an equity investment, and the making of capital contributions to any member of and equity investments in the Partnership GroupPartnership’s Subsidiaries;
(v) the management, operation, leasing, landscaping, repair, alteration, demolition, replacement or improvement of any Property, including, without limitation, any Contributed Property, or other asset of the Partnership or any Subsidiary, whether pursuant to a Services Agreement or otherwise;
(vi) the negotiation, execution and performance of any contracts, leases, conveyances or other instruments (including instruments that limit the liability of General Partner considers useful or necessary to the Partnership under contractual arrangements to all or particular assets conduct of the Partnership, with ’s operations or the other party to the contract to have no recourse against implementation of the General Partner or its assets Partner’s powers under this Agreement, including contracting with contractors, developers, consultants, accountants, legal counsel, other than its interest in professional advisors and other agents and the payment of their expenses and compensation out of the Partnership, even if same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case);
(vi) the distribution of Partnership cash’s assets;
(vii) the selection distribution of Partnership cash or other Partnership assets in accordance with this Agreement, the holding, management, investment and dismissal reinvestment of employees (including employees having titles such as “president,” “vice president,” “secretary” cash and “treasurer”) and agents, outside attorneys, accountants, consultants and contractors other assets of the Partnership and the determination collection and receipt of their compensation revenues, rents and other terms income of employment or hiringthe Partnership;
(viii) the maintenance of such insurance for the benefit of the Partnership Group and the Partners as it deems necessary or appropriate, including, without limitation, (i) casualty, liability and other insurance on the Properties and (ii) liability insurance for the Indemnitees hereunder;
(ix) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies companies, joint ventures or other relationships that it deems desirable (including including, without limitation, the acquisition of interests in, and the contributions of property to, any Group Member Subsidiary and any other Person in which it has an equity investment from time to time) subject ); provided, however, that, as long as the Parent has determined to continue to qualify as a REIT, the restrictions set forth General Partner may not engage in any such formation, acquisition or contribution that would cause the Parent to fail to qualify as a REIT within the meaning of Code Section 2.4;856(a); Back to Contents
(x) the control of any matters affecting the rights and obligations of the Partnership, including the bringing settlement, compromise, submission to arbitration or any other form of dispute resolution, or abandonment, of any claim, cause of action, liability, debt or damages, due or owing to or from the Partnership, the commencement or defense of suits, legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, and defending the representation of actions at law the Partnership in all suits or in equity and otherwise engaging in the conduct legal proceedings, administrative proceedings, arbitrations or other forms of litigation and dispute resolution, the incurring of legal expense expense, and the settlement of claims and litigation;
(xi) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.8);
(xiii) unless restricted or prohibited by Section 5.7, the purchase, sale or other acquisition or disposition of Partnership Securities, or the issuance of additional options, rights, warrants and appreciation rights relating to Partnership Securities; and
(xivxi) the undertaking of any action in connection with the Partnership’s participation direct or indirect investment in any Group Member as a member Subsidiary or partner.any other Person (including, without limitation, the contribution or loan of funds by the Partnership to such Persons);
(bxii) Notwithstanding any other provision of except as otherwise specifically set forth in this Agreement, the Operating determination of the fair market value of any Partnership property distributed in-kind using such reasonable method of valuation as it may adopt; provided that such methods are otherwise consistent with the requirements of this Agreement;
(xiii) the enforcement of any rights against any Partner pursuant to representations, warranties, covenants and indemnities relating to such Partner’s contribution of property or assets to the Partnership;
(xiv) the exercise, directly or indirectly, through any attorney-in-fact acting under a general or limited power-of-attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(xv) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(xvi) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest, pursuant to contractual or other arrangements with such Person;
(xvii) the making, execution and delivery of any and all deeds, leases, notes, deeds to secure debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate in the judgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement;
(xviii) the issuance of additional Partnership Units, as appropriate and in the General Partner’s sole and absolute discretion, in connection with Capital Contributions by Additional Limited Partners and additional Capital Contributions by Partners pursuant to Article IV hereof; Back to Contents
(xix) the selection and dismissal of Company AgreementEmployees (including, without limitation, employees having titles or offices such as president, vice president, secretary and treasurer), and agents, outside attorneys, accountants, consultants and contractors of the Partnership or the General Partner, the Delaware Act determination of their compensation and other terms of employment or hiring and the delegation to any applicable law, rule or regulation, each such Company Employee the authority to conduct the business of the Partnership in accordance with the terms of this Agreement;
(xx) the distribution of cash to acquire Partnership Units held by a Limited Partner in connection with a Limited Partner’s exercise of its Redemption Right under Section 8.6 hereof;
(xxi) the amendment and restatement of Exhibit A hereto to reflect accurately at all times the Capital Contributions and Percentage Interests of the Partners as the same are adjusted from time to time to the extent necessary to reflect redemptions, conversion of Earnout Units, Capital Contributions, the issuance of Partnership Units, the admission of any Additional Limited Partner or any Substituted Limited Partner or otherwise, which amendment and restatement, notwithstanding anything in this Agreement to the Assignees contrary, shall not be deemed an amendment to this Agreement, as long as the matter or event being reflected in Exhibit A hereto otherwise is authorized by this Agreement;
(xxii) the collection and each other Person who may acquire an interest in Partnership Securities hereby (i) approves, ratifies receipt of revenues and confirms the execution, delivery and performance by the parties thereto income of the Operating Company AgreementPartnership; and
(xxiii) an election to dissolve the Partnership pursuant to Section 13.1.D hereof.
B. Each of the Limited Partners agrees that, any other limited liability company or partnership agreement of any other Group Memberexcept as provided in Section 7.3 hereof, the Underwriting Agreement, the Omnibus Agreement, the Contribution Agreement and the other agreements described in or filed as exhibits to the Registration Statement that are related to the transactions contemplated by the Registration Statement; (ii) agrees that the General Partner (on its own or through any officer of the Partnership) is authorized to execute, deliver and perform the above-mentioned agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership without any further act, approval or vote of the Partners Partners, notwithstanding any other provision of this Agreement, the Act or any applicable law, rule or regulation.
C. At all times from and after the Assignees or date hereof, the General Partner may cause the Partnership to establish and maintain working capital and other Persons who may acquire an interest reserves in Partnership Securities; and (iii) agrees that the execution, delivery or performance by such amounts as the General Partner, any Group Member or any Affiliate of any of themin its sole and absolute discretion, of this Agreement or any agreement authorized or permitted deems appropriate and reasonable from time to time.
D. In exercising its authority under this Agreement Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner (including the exercise General Partner) of any action taken (or not taken) by it. Except as may be provided in a separate written agreement between the Partnership and the Limited Partners, the General Partner and the Partnership shall not have liability to a Limited Partner under any circumstances as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner or any Affiliate of the General Partner of the rights accorded pursuant to Article XV), shall not constitute a breach by the General Partner of any duty its authority under this Agreement; provided that the General Partner may owe the Partnership or the Limited Partners or any other Persons has acted in good faith and pursuant to its authority under this Agreement (or any other agreements) or of any duty stated or implied by law or equityAgreement.
Appears in 1 contract
Samples: Limited Partnership Agreement (Feldman Mall Properties, Inc.)
Management. (a) The General Partner shall conduct, direct and manage all activities of the Partnership. A. Except as otherwise expressly provided in this Agreement, all management powers over the business and affairs of the Partnership shall be are exclusively vested in the General Partner, and no Limited Partner or Assignee shall have any right to participate in or exercise control or management power over the business and affairs of the Partnership; provided, however, that the General Partner may be removed by the holders of a majority of the Class A Common Units, with or without cause, such removal effective upon the delivery of written notice thereof by the Limited Partners to the General Partner. In addition to the powers now or hereafter granted a general partner of a limited partnership under the Act and other applicable law or which are granted to the General Partner under any other provision of this Agreement, the General Partner, subject to the other provisions hereof including Section 7.3, shall have full power and authority to do all things and on such terms as it, in its sole discretion, may deem deemed necessary or appropriate desirable by it to conduct the business of the Partnership, to exercise all powers set forth in Section 2.5 3.2 and to effectuate the purposes set forth in Section 2.43.1, including the followingincluding, without limitation:
(i) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money to permit the Partnership to make distributions to its Partners in such amounts as will permit AMB, in its capacity as the sole general partner of the Operating Partnership and as the indirect owner of 100% of the equity interests of the General Partner (for so long as AMB has determined to qualify as a REIT), to avoid the payment of any Federal income tax (including, for this purpose, any excise tax pursuant to Section 4981 of the Code) and to make distributions to its stockholders sufficient to permit AMB to maintain REIT status), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtednessindebtedness (including the securing of same by mortgage, including indebtedness that is convertible into Partnership Securities, deed of trust or other lien or encumbrance on all or any of the Partnership’s assets) and the incurring of any other obligationsobligations it deems necessary for the conduct of the activities of the Partnership;
(ii) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership;
(iii) subject to the provisions of Section 7.3.D, the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the Partnership or the merger or other combination of the Partnership with or into another Person (the matters described in this clause (iii) being subject, however, to any prior approval that may be required by Section 7.3)entity;
(iv) the mortgage, pledge, encumbrance or hypothecation of all or any assets of the Partnership, and the use of the assets of the Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms it sees fit, including including, without limitation, the financing of the conduct of or the operations of the Partnership Group; subject to Section 7.6(a)General Partner or the Partnership, the lending of funds to other Persons (including other Group Members)including, without limitation, the General Partner (if necessary to permit the financing or capitalization of a subsidiary of the General Partner or the Partnership) and any Subsidiaries of the Partnership) and the repayment or guarantee of obligations of the Partnership Group Partnership, any of its Subsidiaries and the making of capital contributions to any member of the Partnership Groupother Person in which it has an equity investment;
(v) the negotiation, execution execution, and performance of any contracts, leases, conveyances or other instruments (including instruments that limit the liability of General Partner considers useful or necessary to the Partnership under contractual arrangements to all or particular assets conduct of the Partnership, with ’s operations or the other party to the contract to have no recourse against implementation of the General Partner or its assets other than its interest in the Partnership, even if same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case)Partner’s powers under this Agreement;
(vi) the distribution of Partnership cashcash or other Partnership assets in accordance with this Agreement;
(vii) the selection and dismissal of employees of the Partnership (including including, without limitation, employees having titles such as “president,” “vice president,” “secretary” and “treasurer”) ), and agents, outside attorneys, accountants, consultants and contractors and of the Partnership, the determination of their compensation and other terms of employment or hiring, including waivers of conflicts of interest and the payment of their expenses and compensation out of the Partnership’s assets;
(viii) the maintenance of such insurance for the benefit of the Partnership Group and the Partners as it deems necessary or appropriate;
(ix) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies ventures or other relationships that it deems desirable (including including, without limitation, the acquisition of interests in, and the contributions of property to, to any Group Member Subsidiary and any other Person in which it has an equity investment from time to time) subject ); provided that as long as AMB, in its capacity as the indirect owner of 100% of the equity interests of the General Partner and as the sole general partner of the Operating Partnership, has determined to continue to qualify as a REIT, the restrictions set forth Partnership may not engage in Section 2.4any such formation, acquisition or contribution that would cause AMB to fail to qualify as a REIT;
(x) the control of any matters affecting the rights and obligations of the Partnership, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigation and the incurring of legal expense and the settlement of claims and litigation;
(xi) , and the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.8);
(xiii) unless restricted or prohibited by Section 5.7, the purchase, sale or other acquisition or disposition of Partnership Securities, or the issuance of additional options, rights, warrants and appreciation rights relating to Partnership Securities; and
(xivxi) the undertaking of any action in connection with the Partnership’s participation direct or indirect investment in any Group Member as a member Person (including, without limitation, contributing or partner.loaning Partnership funds to, incurring indebtedness on behalf of, or guarantying the obligations of any such Persons);
(bxii) Notwithstanding any subject to the other provision of provisions in this Agreement, the Operating Company determination of the fair market value of any Partnership property distributed in kind using such reasonable method of valuation as it may adopt; provided that, such methods are otherwise consistent with requirements of this Agreement;
(xiii) the management, operation, leasing, landscaping, repair, alteration, demolition or improvement of any real property or improvements owned by the Delaware Act Partnership or any applicable law, rule or regulation, each Subsidiary of the Partners Partnership or any Person in which the Partnership has made a direct or indirect equity investment;
(xiv) holding, managing, investing and reinvesting cash and other assets of the Assignees Partnership;
(xv) the collection and each receipt of revenues and income of the Partnership;
(xvi) the exercise, directly or indirectly through any attorney-in-fact acting under a general or limited power of attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(xvii) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person who may acquire in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(xviii) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest interest, pursuant to contractual or other arrangements with such Person;
(xix) the making, execution and delivery of any and all deeds, leases, notes, deeds to secure debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or other agreements in Partnership Securities hereby writing necessary or appropriate in the judgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement; and
(ixx) approves, ratifies and confirms the execution, delivery and performance making of loans by the parties thereto Partnership to its Partners, for any purpose, provided that such loans be upon arm’s-length terms.
B. Each of the Operating Company Agreement, any other limited liability company or partnership agreement of any other Group Member, the Underwriting Agreement, the Omnibus Agreement, the Contribution Agreement and the other agreements described in or filed as exhibits to the Registration Statement that are related to the transactions contemplated by the Registration Statement; (ii) Limited Partners agrees that the General Partner (on its own or through any officer of the Partnership) is authorized to execute, deliver and perform the above-mentioned agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership without any further act, approval or vote of the Partners Partners, notwithstanding any other provisions of this Agreement (except as provided in Section 7.3), the Act or the Assignees any applicable law, rule or the other Persons who may acquire an interest in Partnership Securities; and (iii) agrees that the regulation. The execution, delivery or performance by the General Partner, any Group Member Partner or any Affiliate the Partnership of any of them, of this Agreement or any agreement authorized or permitted under this Agreement (including the exercise by the General Partner or any Affiliate of the General Partner of the rights accorded pursuant to Article XV), shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement (or any other agreements) or of any duty stated or implied by law or equity.
C. At all times from and after the date hereof, the General Partner may cause the Partnership to obtain and maintain (i) casualty, liability and other insurance (including, without limitation, earthquake insurance) on the properties of the Partnership and (ii) liability insurance for the Indemnities hereunder.
D. At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain working capital and other reserves in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
E. In exercising its authority under this Agreement, the General Partner may, but other than as set forth in the following sentence and as expressly set forth in the agreements listed on Exhibit H hereto, shall be under no obligation to, take into account the tax consequences to any Partner (including the General Partner) of any action taken by the General Partner. The General Partner and the Partnership shall not have liability to a Limited Partner under any circumstances as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner pursuant to its authority under this Agreement.
F. Except as otherwise provided herein, to the extent the duties of the General Partner require expenditures of funds to be paid to third parties, the General Partner shall not have any obligations hereunder except to the extent that Partnership funds are reasonably available to it for the performance of such duties, and nothing herein contained shall be deemed to authorize or require the General Partner, in its capacity as such, to expend its individual funds for payment to third parties or to undertake any individual liability or obligation on behalf of the Partnership.
Appears in 1 contract
Management. (a) The General Partner shall conduct, direct and manage all activities of the Partnership. A. Except as otherwise expressly provided in this Agreement, all management powers over the business and affairs of the Partnership are and shall be exclusively vested in the General Partner, and no Limited Partner or Assignee shall have any right to participate in or exercise control or management power over the business and affairs of the Partnership. The General Partner may not be removed by the Partners with or without cause, except with the consent of the General Partner. In addition to the powers now or hereafter granted to a general partner of a limited partnership under applicable law or which that are granted to the General Partner under any other provision of this Agreement, the General Partner, subject to Section 7.3the other provisions hereof, shall have full power and authority to do all things and on such terms as it, in its sole discretion, may deem deemed necessary or appropriate desirable by it to conduct the business of the Partnership, to exercise all powers set forth in Section 2.5 3.2 hereof and to effectuate the purposes set forth in Section 2.43.1 hereof, including the followingincluding, without limitation:
(i1) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money or selling assets to permit the Partnership to make distributions to its Partners in such amounts as will permit the General Partner (so long as the General Partner desires to maintain or restore its status as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Code Section 4981) and to make distributions sufficient to permit the General Partner to maintain or restore REIT status or otherwise to satisfy the REIT Requirements), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtednessindebtedness (including the securing of same by deed to secure debt, including indebtedness that is convertible into Partnership Securitiesmortgage, deed of trust or other lien or encumbrance on the Partnership’s assets) and the incurring of any other obligationsobligations that it deems necessary for the conduct of the activities of the Partnership;
(ii2) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership;
(iii3) the acquisition, dispositionsale, mortgagelease, pledgetransfer, encumbranceexchange or other disposition of any, hypothecation all or exchange of any or substantially all of the assets of the Partnership (including, but not limited to, the exercise or grant of any conversion, option, privilege or subscription right or any other right available in connection with any assets at any time held by the Partnership) or the merger merger, consolidation, reorganization or other combination of the Partnership with or into another Person (the matters described in this clause (iii) being subject, however, to any prior approval that may be required by Section 7.3)entity;
(iv4) the mortgage, pledge, encumbrance or hypothecation of any assets of the Partnership, the use of the assets of the Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms that it sees fit, including including, without limitation, the financing of the conduct operations and activities of the operations General Partner, the Partnership or any of the Partnership Group; subject to Section 7.6(a)Partnership’s Subsidiaries, the lending of funds to other Persons (including other Group Members)including, without limitation, the Partnership’s Subsidiaries) and the repayment or guarantee of obligations of the Partnership, its Subsidiaries and any other Person in which the Partnership Group has an equity investment, and the making of capital contributions to and equity investments in the Partnership’s Subsidiaries;
(5) the management, operation, leasing, landscaping, repair, alteration, demolition, replacement or improvement of any member Property, including, without limitation, any Contributed Property, or other asset of the Partnership Groupor any Subsidiary, whether pursuant to a Services Agreement or otherwise;
(v6) the negotiation, execution and performance of any contracts, leases, conveyances or other instruments (including instruments that limit the liability General Partner considers useful or necessary to the conduct of the Partnership’s operations or the implementation of the General Partner’s powers under this Agreement, including contracting with contractors, developers, consultants, accountants, legal counsel, the Advisor’s other professional advisors and other agents and the payment of their expenses and compensation out of the Partnership’s assets; provided, however, that the Advisory Agreement must contain a provision (the “Voting Direction Provision”) that requires the Advisor to vote the shares of Special Voting Preferred Stock in proportion to the votes (the “LP Direction Votes”) that the Advisor receives from the holders of Partnership under contractual arrangements Units (other than the General Partner), subject to all the Advisor Voting Direction Exclusions. The Advisor shall be entitled to vote its Special Voting Preferred Stock in its sole discretion to the extent Vornado Realty Trust is not granted LP Direction Votes in respect of its Partnership Units by virtue of the Advisor Voting Direction Exclusions;
(7) the distribution of Partnership cash or particular other Partnership assets in accordance with this Agreement, the holding, management, investment and reinvestment of cash and other assets of the Partnership, with and the other party to the contract to have no recourse against the General Partner or its assets other than its interest in collection and receipt of revenues, rents and income of the Partnership, even if same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case);
(vi) the distribution of Partnership cash;
(vii) the selection and dismissal of employees (including employees having titles such as “president,” “vice president,” “secretary” and “treasurer”) and agents, outside attorneys, accountants, consultants and contractors and the determination of their compensation and other terms of employment or hiring;
(viii) 8) the maintenance of such insurance for the benefit of the Partnership Group and the Partners as it deems necessary or appropriate, including, without limitation, (i) casualty, liability and other insurance on the Properties and (ii) liability insurance for the Indemnitees hereunder;
(ix9) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies companies, joint ventures or other relationships that it deems desirable (including including, without limitation, the acquisition of interests in, and the contributions of property to, any Group Member Subsidiary and any other Person in which it has an equity investment from time to time) subject to the restrictions set forth in Section 2.4);
(x10) the control of any matters affecting the rights and obligations of the Partnership, including the bringing settlement, compromise, submission to arbitration or any other form of dispute resolution, or abandonment, of any claim, cause of action, liability, debt or damages, due or owing to or from the Partnership, the commencement or defense of suits, legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, and defending the representation of actions at law the Partnership in all suits or in equity and otherwise engaging in the conduct legal proceedings, administrative proceedings, arbitrations or other forms of litigation and dispute resolution, the incurring of legal expense expense, and the settlement of claims and litigation;
(xi) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.8);
(xiii) unless restricted or prohibited by Section 5.7, the purchase, sale or other acquisition or disposition of Partnership Securities, or the issuance of additional options, rights, warrants and appreciation rights relating to Partnership Securities; and
(xiv11) the undertaking of any action in connection with the Partnership’s participation direct or indirect investment in any Group Member as a member Subsidiary or partner.any other Person (including, without limitation, the contribution of Property or contribution or loan of funds by the Partnership to such Persons);
(b12) Notwithstanding any other provision of except as otherwise specifically set forth in this Agreement, the Operating Company Agreement, the Delaware Act or any applicable law, rule or regulation, each determination of the Partners fair market value of any Partnership property distributed in kind using such reasonable method of valuation as it may adopt; provided that such methods are otherwise consistent with the requirements of this Agreement;
(13) the enforcement of any rights against any Partner pursuant to representations, warranties, covenants and indemnities relating to such Partner’s contribution of property or assets to the Assignees and each other Person who may acquire an interest in Partnership Securities hereby Partnership;
(i14) approvesthe exercise, ratifies and confirms directly or indirectly, through any attorney-in-fact acting under a general or limited power of attorney, of any right, including the executionright to vote, delivery and performance appurtenant to any asset or investment held by the parties thereto Partnership;
(15) the exercise of any of the Operating Company Agreement, any other limited liability company or partnership agreement powers of any other Group Member, the Underwriting Agreement, the Omnibus Agreement, the Contribution Agreement and the other agreements described in or filed as exhibits to the Registration Statement that are related to the transactions contemplated by the Registration Statement; (ii) agrees that the General Partner (enumerated in this Agreement on its own behalf of or through in connection with any officer Subsidiary of the PartnershipPartnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(16) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest, pursuant to contractual or other arrangements with such Person;
(17) the making, execution and delivery of any and all deeds, leases, notes, deeds to secure debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate in the judgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement;
(18) the issuance of additional Partnership Units, as appropriate and in the General Partner’s sole and absolute discretion, in connection with Capital Contributions by Additional Limited Partners and additional Capital Contributions by Partners pursuant to Article IV hereof;
(19) the selection and dismissal of Company Employees (including, without limitation, employees having titles or offices such as president, vice president, secretary and treasurer), and agents, outside attorneys, accountants, consultants and contractors of the Partnership or the General Partner, the determination of their compensation and other terms of employment or hiring and the delegation to any such Company Employee the authority to conduct the business of the Partnership in accordance with the terms of this Agreement; and
(20) an election to dissolve the Partnership pursuant to Section 13.1.B hereof.
B. Except as provided in Section 14.2 hereof, the General Partner is authorized to execute, deliver and perform the above-mentioned agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership without any further act, approval or vote of the Partners Partners, notwithstanding any other provision of this Agreement, the Act or the Assignees any applicable law, rule or the other Persons who may acquire an interest in Partnership Securities; and (iii) agrees that the regulation. The execution, delivery or performance by the General Partner, any Group Member Partner or any Affiliate the Partnership of any of them, of this Agreement or any agreement authorized or permitted under this Agreement (including the exercise by the General Partner or any Affiliate of the General Partner of the rights accorded pursuant to Article XV), shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement (or any other agreements) or of any duty stated or implied by law or equity.
C. At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain working capital and other reserves in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
D. In exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner (including the General Partner) of any action taken by it. The General Partner and the Partnership shall not have liability to a Limited Partner under any circumstances as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner pursuant to its authority under this Agreement.
E. The General Partner may not take any action in contravention of this Agreement, including, without limitation:
(1) taking any action that would make it impossible to carry on the ordinary business of the Partnership, except as otherwise provided in this Agreement;
(2) possessing Property, or assigning any rights in specific Property, for other than a Partnership purpose except as otherwise provided in this Agreement, including, without limitation, Section 7.9;
(3) admitting a Person as a Partner, except as otherwise provided in this Agreement;
(4) performing any act that would subject a Limited Partner to liability as a general partner in any jurisdiction or any other liability except as provided Section 10.4 hereof or under the Act; or
(5) entering into any contract, mortgage, loan or other agreement that prohibits or restricts the ability of (a) the General Partner or the Partnership from satisfying its obligations under Section 8.6 hereof in full or (b) a Limited Partner from exercising its rights under Section 8.6 hereof to effect a Redemption in full, except, in either case, with the written consent of such Limited Partner affected by the prohibition or restriction.
Appears in 1 contract
Samples: Limited Partnership Agreement (Newkirk Realty Trust, Inc.)
Management. (a) The General Partner shall conduct, direct and manage all activities of the Partnership. Except as otherwise expressly provided in this Agreement, all management powers over the business and affairs of the Partnership shall be exclusively vested in the General Partner, and no Limited Partner or Assignee shall have any management power over the business and affairs of the Partnership. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or which are granted to the General Partner under any other provision of this Agreement, the General Partner, subject to Section 7.3, shall have full power and authority to do all things and on such terms as it, in its sole discretion, may deem necessary or appropriate to conduct the business of the Partnership, to exercise all powers set forth in Section 2.5 and to effectuate the purposes set forth in Section 2.4, including the following:
(i) the making of any expenditures, the lending or borrowing of money, the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtedness, including indebtedness that is convertible into a Partnership SecuritiesInterest, and the incurring of any other obligations;; All American Pipeline, L.P.
(ii) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership;
(iii) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the Partnership or the merger or other combination of the Partnership with or into another Person (the matters described in this clause (iii) being subject, however, to any prior approval that may be required by Section 7.3);
(iv) the use of the assets of the Partnership (including cash on hand) for any purpose consistent with the terms of this Agreement, including the financing of the conduct of the operations of the Partnership Group; , subject to Section 7.6(a)7.6, the lending of funds to other Persons (including other Group Membersthe MLP and any Member of the Partnership Group), the repayment or guarantee of obligations of the MLP or any member of the Partnership Group and the making of capital contributions to any member of the Partnership Group;
(v) the negotiation, execution and performance of any contracts, conveyances or other instruments (including instruments that limit the liability of the Partnership under contractual arrangements to all or particular assets of the Partnership, with the other party to the contract to have no recourse against the General Partner or its assets other than its interest in the Partnership, even if same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case);
(vi) the distribution of Partnership cash;
(vii) the selection and dismissal of employees (including employees having titles such as “"president,” “" "vice president,” “" "secretary” " and “"treasurer”") and agents, outside attorneys, accountants, consultants and contractors and the determination of their compensation and other terms of employment or hiring;
(viii) the maintenance of such insurance for the benefit of the Partnership Group and the Partners as it deems necessary or appropriate;
(ix) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies corporations or other relationships (including the acquisition of interests in, and the contributions of property to, any Group Member from time to time) subject to the restrictions set forth in Section 2.4;
(x) the control of any matters affecting the rights and obligations of the Partnership, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigation and the incurring of legal expense and the settlement of claims and litigation;; and All American Pipeline, L.P.
(xi) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.8);
(xiii) unless restricted or prohibited by Section 5.7, the purchase, sale or other acquisition or disposition of Partnership Securities, or the issuance of additional options, rights, warrants and appreciation rights relating to Partnership Securities; and
(xiv) the undertaking of any action in connection with the Partnership’s participation in any Group Member as a member or partner.
(b) Notwithstanding any other provision of this Agreement, the Operating Company MLP Agreement, the Delaware Texas Act or any applicable law, rule or regulation, each of the Partners and the Assignees and each other Person who may acquire an interest in the Partnership Securities hereby (i) approves, ratifies and confirms the execution, delivery and performance by the parties thereto of the Operating Company Partnership Agreement, any other limited liability company or partnership agreement of any other Group Memberthe MLP Agreement, the Underwriting Agreement, the Omnibus Agreement, the Contribution and Conveyance Agreement and the other agreements and documents described in or filed as exhibits to the Registration Statement that are related to the transactions contemplated by the Registration Statement; (ii) agrees that the General Partner (on its own or through any officer of the Partnership) is authorized to execute, deliver and perform the agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership without any further act, approval or vote of the Partners or the Assignees or the other Persons who may acquire an interest in Partnership Securitiesthe Partnership; and (iii) agrees that the execution, delivery or performance by the General Partner, the MLP, any Group Member or any Affiliate of any of them, of this Agreement or any agreement authorized or permitted under this Agreement (including the exercise by the General Partner or any Affiliate of the General Partner of the rights accorded pursuant to Article XV), shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement (or any other agreements) or of any duty stated or implied by law or equity.
Appears in 1 contract
Samples: Agreement of Limited Partnership (Plains All American Pipeline Lp)
Management. (a) The General Partner shall conduct, direct and manage all activities of the Partnership. Except as otherwise expressly provided in this Agreement, all management powers over the business and affairs of the Partnership shall be are exclusively vested in the General Partner, and no Limited Partner or Assignee shall have any right to participate in or exercise control or management power over the business and affairs of the Partnership. The General Partner may not be removed by the Limited Partners with or without cause, except with the consent of the General Partner. In addition to the powers now or hereafter granted a general partner General Partner of a limited partnership under applicable law or which are granted to the General Partner under any other provision of this Agreement, the General Partner, subject to the other provisions hereof including Section 7.3, shall have full power and authority to do all things and on such terms as it, in its sole discretion, may deem deemed necessary or appropriate desirable by it to conduct the business of the Partnership, to exercise all powers set forth in Section 2.5 3.2 hereof and to effectuate the purposes set forth in Section 2.43.1 hereof, including the followingincluding, without limitation:
(i) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money to permit the Partnership to make distributions to its Partners in such amounts as will permit the Company (so long as the Company has determined to qualify as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Section 4981 of the Code) and to make distributions to its stockholders sufficient to permit the Company to maintain REIT status), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtednessindebtedness (including the securing of same by mortgage, including indebtedness that is convertible into Partnership Securities, deed of trust or other lien or encumbrance on all or any of the Partnership’s assets) and the incurring of any other obligationsobligations it deems necessary for the conduct of the activities of the Partnership;
(ii) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership;
(iii) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the Partnership or the merger or other combination of the Partnership with or into another Person (the matters described in this clause (iii) being subject, however, to any prior approval that may be required by Section 7.3)entity;
(iv) the mortgage, pledge, encumbrance or hypothecation of all or any assets of the Partnership, and the use of the assets of the Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms it sees fit, including including, without limitation, the financing of the conduct of or the operations of the Partnership Group; subject to Section 7.6(a)General Partner, the Company, or the Partnership, the lending of funds to other Persons (including other Group Members)including, without limitation, the General. Partner or the Company (if necessary to permit the financing or capitalization of a subsidiary of the General Partner, the Company, or the Partnership) or any Subsidiaries of the Partnership) and the repayment or guarantee of obligations of the Partnership Group Partnership, the Company, any of its Subsidiaries and the making of capital contributions to any member of the Partnership Groupother Person in which it has an equity investment;
(v) the negotiation, execution execution, and performance of any contracts, leases, conveyances or other instruments (including instruments that limit the liability of General. Partner considers useful or necessary to the Partnership under contractual arrangements to all or particular assets conduct of the Partnership, with ’s operations or the other party to the contract to have no recourse against implementation of the General Partner or its assets other than its interest in the Partnership, even if same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case)Partner’s powers under this Agreement;
(vi) the distribution of Partnership cashcash or other Partnership assets in accordance with this Agreement;
(vii) the selection and dismissal of employees of the Partnership (including including, without limitation, employees having titles such as “president,” “vice president,” “secretary” and “treasurer”) ), and agents, outside attorneys, accountants, consultants and contractors and of the Partnership, the determination of their compensation and other terms of employment or hiring, including waivers of conflicts of interest and the payment of their expenses and compensation out of the Partnership’s assets;
(viii) the maintenance of such insurance for the benefit of the Partnership Group and the Partners as it deems necessary or appropriate;
(ix) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies ventures or other relationships that it deems desirable (including including, without limitation, the acquisition of interests in, and the contributions of property to, to any Group Member Subsidiary and any other Person in which it has an equity investment from time to time) subject ); PROVIDED THAT, as long as the Company has determined to continue to qualify as a REIT, the restrictions set forth Partnership may not engage in Section 2.4any such formation, acquisition or contribution that would cause the Company to fail to qualify as a REIT;
(x) the control of any matters affecting the rights and obligations of the Partnership, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigation and the incurring of legal expense and the settlement of claims and litigation;
(xi) , and the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.8);
(xiii) unless restricted or prohibited by Section 5.7, the purchase, sale or other acquisition or disposition of Partnership Securities, or the issuance of additional options, rights, warrants and appreciation rights relating to Partnership Securities; and
(xivxi) the undertaking of any action in connection with the Partnership’s participation direct or indirect investment in any Group Member Person (including, without limitation, contributing or loaning Partnership funds to, incurring indebtedness on behalf of, or guarantying the obligations of any such Persons);
(xii) subject to the other provisions in this Agreement, the determination of the fair market value of any Partnership property distributed in kind using such reasonable method of valuation as it may adopt, PROVIDED THAT such methods are otherwise consistent with requirements of this Agreement;
(xiii) the management, operation, leasing, landscaping, repair, alteration, demolition or improvement of any real property or improvements owned by the Partnership or any Subsidiary of the Partnership or any Person in which the Partnership has made a member direct or partnerindirect equity investment;
(xiv) holding, managing, investing and reinvesting cash and other assets of the Partnership;
(xv) the collection and receipt of revenues and income of the Partnership;
(xvi) the exercise, directly or indirectly through any attorney-in-fact acting under a general or limited power of attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(xvii) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(xviii) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest pursuant to contractual or other arrangements with such Person; and
(xix) the making, execution and delivery of any and all deeds, leases, notes, deeds to secure debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate in the judgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement.
(b) Notwithstanding any other provision of this Agreement, the Operating Company Agreement, the Delaware Act or any applicable law, rule or regulation, each Each of the Limited Partners and the Assignees and each other Person who may acquire an interest in Partnership Securities hereby (i) approves, ratifies and confirms the execution, delivery and performance by the parties thereto of the Operating Company Agreement, any other limited liability company or partnership agreement of any other Group Member, the Underwriting Agreement, the Omnibus Agreement, the Contribution Agreement and the other agreements described in or filed as exhibits to the Registration Statement that are related to the transactions contemplated by the Registration Statement; (ii) agrees that the General Partner (on its own or through any officer of the Partnership) is authorized to execute, deliver and perform the above-mentioned agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership without any further act, approval or vote of the Partners partners, notwithstanding any other provisions of this Agreement (except as provided in Section 7.3), the Act or the Assignees any applicable law, rule or the other Persons who may acquire an interest in Partnership Securities; and (iii) agrees that the regulation. The execution, delivery or performance by the General Partner, any Group Member Partner or any Affiliate the Partnership of any of them, of this Agreement or any agreement authorized or permitted under this Agreement (including the exercise by the General Partner or any Affiliate of the General Partner of the rights accorded pursuant to Article XV), shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement (or any other agreements) or of any duty stated or implied by law or equity.
(c) At all times from and after the date hereof, the General Partner may cause the Partnership to obtain and maintain (i) casualty, liability and other insurance on the properties of the Partnership and (ii) liability insurance for the Indemnitees hereunder.
(d) At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain working capital and other reserves in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
(e) Other than as set forth in the following sentence, and subject to Section 11.2(d), in exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner (including the General Partner or the Company) of any action taken by it. The General Partner, on behalf of the Partnership, shall use commercially reasonable efforts to cooperate with the Limited Partners to minimize any taxes payable in connection with any repayment, refinancing, replacement or restructuring of Debt, or any sale, exchange or any other disposition of assets, of the Partnership, including, without limitation, amending this Agreement to provide obligations on the part of any affected Partner to restore deficit balances in their Capital Accounts as of the time of liquidation of the Partnership and to maintain a corresponding level of recourse debt to match such obligations or maintaining a level of non-recourse debt that can be allocated to, and included in the Partnership tax basis of, such Partners, pursuant to the regulations under Section 752 of the Code. The General Partner and the Partnership shall not have liability to a Limited Partner under any circumstances as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner pursuant to its authority under this Agreement.
(f) Except as otherwise provided herein, to the extent the duties of the General Partner require expenditures of funds to be paid to third parties, the General Partner shall not have any obligations hereunder except to the extent that Partnership funds are reasonably available to it for the performance of such duties, and nothing herein contained shall be deemed to authorize or require the General Partner, in its capacity as such, to expend its individual funds for payment to third parties or to undertake any individual liability or obligation on behalf of the Partnership.
Appears in 1 contract
Samples: Limited Partnership Agreement (Parkway Properties Inc)
Management. (a) The General Partner shall conduct, direct and manage all activities of the Partnership. A. Except as otherwise expressly provided in this Agreement, all management powers over the business and affairs of the Partnership shall be exclusively are vested in the General Partner, and no Limited Partner or Assignee shall have any right to participate in or exercise control or management power over the business and affairs of the Partnership. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or which are granted to the General Partner under any other provision of this Agreement, the General Partner, subject to Section 7.39.01 hereof, shall have full power and authority to do all things and on such terms as it, in its sole discretion, may deem deemed necessary or appropriate desirable to conduct the business of the Partnership, to exercise all powers set forth in Section 2.5 3.02 hereof and to effectuate the purposes purpose set forth in Section 2.43.01 hereof, including without limitation, those matters set forth below in this Section 7.01. The General Partner hereby delegates to the followingBoard of Directors of the Partnership all of its management powers hereunder, other than those expressly reserved in Section 9.01 hereto:
(i1) the making of any expenditures, the lending or borrowing of money, the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences evidence of indebtednessindebtedness (including the securing of the same by deed, including indebtedness that is convertible into Partnership Securitiesmortgage, deed of trust or other lien or encumbrance on the Partnership’s and the Partnership’s Subsidiaries’ assets) and the incurring of any other obligationsobligations it deems necessary for the conduct of the activities of the Partnership or its Subsidiaries;
(ii2) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership, the registration of any offering of any class of securities of the Partnership under the Securities Act and the registration of any such class under the Exchange Act and the listing of any securities of the Partnership on any securities market;
(iii3) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the Partnership or the Partnership’s Subsidiaries, including, without limitation, in connection with a resecuritization transaction and including the exercise or grant of any conversion, option, privilege, or subscription right or other right available in connection with any assets at any time held by the Partnership or its Subsidiaries or the merger or other combination of the Partnership with or into another Person entity (all of the matters described in this clause (iii) being subject, however, foregoing subject to any prior approval that may be only to the extent required by Section 7.37.03 hereof);
(iv4) the use of the assets of the Partnership or of its Subsidiaries (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and the Act and on any terms it sees fit, including including, without limitation, the financing of the conduct of the operations of the General Partner, the Partnership Group; subject to Section 7.6(a)or any of the Partnership’s Subsidiaries, the lending of funds to other Persons (including other Group Members)including, without limitation, the Subsidiaries of the Partnership ) and the repayment or guarantee of obligations of the Partnership Group and its Subsidiaries and any other Person in which it has an equity investment, and the making of capital contributions to any member of the Partnership Groupits Subsidiaries;
(v5) delegation of any or all of its authority to the Manager or to officers and employees of the General Partner, the Partnership or the Manager;
(6) the establishment of reserves;
(7) the purchase, sale, management, operation, leasing, landscaping, repair, alteration, demolition or improvement of any real property or improvements owned by the Partnership or any Subsidiary of the Partnership;
(8) the negotiation, execution execution, and performance of any contracts, conveyances or other instruments (including instruments that limit the liability of General Partner considers useful or necessary to the Partnership under contractual arrangements to all or particular assets conduct of the Partnership, with ’s operations or the other party to the contract to have no recourse against implementation of the General Partner or its assets Partner’s powers under this Agreement, including contracting with contractors, developers, consultants, accountants, legal counsel, other than its interest in professional advisors and other agents and the payment of their expenses and compensation out of the Partnership, even if same results in the terms ’s or any of the transaction being less favorable to the Partnership than would otherwise be the case)its Subsidiaries’ assets;
(vi9) the opening and maintenance of bank accounts for the Partnership and the drawing of checks and orders for the payment of money;
(10) the distribution of Partnership cashcash or other Partnership assets in accordance with this Agreement;
(vii11) holding, managing, investing and reinvesting cash and other assets of the Partnership and its Subsidiaries;
(12) the selection collection and dismissal receipt of employees revenues and income of the Partnership;
(including employees having titles such as “president,” “vice president,” “secretary” and “treasurer”13) and agents, outside attorneys, accountants, consultants and contractors and the establishment of one or more divisions of the Partnership;
(14) the determination of their the hiring and compensation and other terms of employment or hiringemployees;
(viii15) the maintenance of such insurance for the benefit of the Partnership Group Partnership, its Subsidiaries, their respective partners, members or interest holders and directors and officers of the Partners General Partner as it deems necessary or appropriate;
(ix16) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies ventures or other relationships that it deems desirable (including including, without limitation, the acquisition of interests in, and the contributions of property to, its Subsidiaries and any Group Member other Person in which it has an equity investment from time to time) subject to the restrictions set forth in Section 2.4);
(x17) the control of any matters affecting the rights and obligations of the PartnershipPartnership and its Subsidiaries, including the bringing settlement, compromise, submission to arbitration or any other form of dispute resolution, or abandonment of, any claim, cause of action, liability, debt or damages, due or owing to or from the Partnership or any of its Subsidiaries, the commencement or defense of suits, legal proceedings, administrative proceedings, arbitration or other forms of dispute resolution, and defending the representation of actions at law the Partnership in all suits or in equity and otherwise engaging in the conduct legal proceedings, administrative proceedings, arbitrations or other forms of litigation and dispute resolution, the incurring of legal expense expense, and the settlement of claims and litigation;
(xi) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.8);
(xiii) unless restricted or prohibited by Section 5.7, the purchase, sale or other acquisition or disposition of Partnership Securities, or the issuance of additional options, rights, warrants and appreciation rights relating to Partnership Securities; and
(xiv18) the undertaking of any action in connection with the Partnership’s participation direct or indirect investment in its Subsidiaries or any Group Member other Person (including, without limitation, the contribution or loan of funds by the Partnership to such Persons);
(19) the determination of the fair market value of any Partnership property distributed in kind using such reasonable method of valuation as the General Partner may adopt;
(20) the exercise, directly or indirectly, through any attorney-in-fact acting under a member general or partnerlimited power of attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(21) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(22) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest pursuant to contractual or other arrangements with such Person;
(23) the making, execution and delivery of any and all deeds, leases, notes, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate, in the judgment of the General Partner, for the accomplishment of any of the powers of the General Partner enumerated in this Agreement; and
(24) the issuance of additional Partnership Units, as appropriate, in connection with Capital Contributions by Additional Limited Partners pursuant to Article IV hereof.
(b) Notwithstanding any other provision of this Agreement, the Operating Company Agreement, the Delaware Act or any applicable law, rule or regulation, each B. Each of the Limited Partners and the Assignees and each other Person who may acquire an interest in Partnership Securities hereby (i) approves, ratifies and confirms the execution, delivery and performance by the parties thereto of the Operating Company Agreement, any other limited liability company or partnership agreement of any other Group Member, the Underwriting Agreement, the Omnibus Agreement, the Contribution Agreement and the other agreements described in or filed as exhibits to the Registration Statement that are related to the transactions contemplated by the Registration Statement; (ii) agrees that the General Partner (on its own or through any officer officers of the PartnershipPartnership or such other person (including the Manager) as the Board of Directors may appoint, is authorized to execute, deliver and perform the above-mentioned agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership without any further act, approval or vote of the Partners Partners, notwithstanding any other provision of this Agreement (except as provided in Section 7.03), the Act or any applicable law, rule or regulation, to the Assignees fullest extent permitted under the Act or other applicable law, rule or regulation.
C. At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain at any and all times working capital accounts and other Persons who may acquire an interest cash or similar balances in Partnership Securities; and (iii) agrees that the execution, delivery or performance by such amounts as the General Partner, deems appropriate and reasonable from time to time.
D. The General Partner shall not have any Group Member greater fiduciary or similar duty to the Partnership or any Affiliate of the Partners than an officer of a corporation for profit organized under the General Business Corporation Law of Delaware would have to such corporation or its shareholders.
E. In exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner of any action taken by it. The General Partner and the Partnership shall not have liability to a Limited Partner under any circumstances, as a result of them, an income tax liability incurred by such Limited Partner as a result of this Agreement an action (or any agreement authorized or permitted under this Agreement (including the exercise inaction) by the General Partner or any Affiliate of the General Partner of the rights accorded taken pursuant to Article XV), shall not constitute a breach by its authority under this Agreement and in accordance with the General Partner terms of any duty Section 7.03. The Limited Partners expressly acknowledge that the General Partner may owe is acting on behalf of the Partnership or and its Partners collectively.
F. The General Partner may not be removed by the Limited Partners with or any other Persons under this Agreement (or any other agreements) or of any duty stated or implied by law or equitywithout cause.
Appears in 1 contract
Samples: Limited Partnership Agreement (Highland Financial Partners, L.P.)
Management. (a) The General Partner shall conduct, direct and manage all activities of the Partnership. A0 Except as otherwise expressly provided in this Agreement, all management powers over full, complete and exclusive discretion to manage and control the business and affairs of the Partnership are and shall be exclusively vested in the General Partner, and no Limited Partner or Assignee shall have any right to participate in or exercise control or management power over the business and affairs of the Partnership. The General Partner may not be removed by the Limited Partners with or without cause. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or which are granted to the General Partner under any other provision of this Agreement, the General Partner, subject to Section 7.3, Partner shall have full power and authority to do all things and on such terms as it, in its sole discretion, may deem deemed necessary or appropriate desirable by it to conduct the business of the Partnership, to exercise all powers set forth in Section 2.5 3.2 hereof and to effectuate the purposes set forth in Section 2.43.1 hereof, including the followingincluding, without limitation:
(ia) the making of any expenditures, the lending or borrowing of money, including, without limitation, making prepayments on loans and borrowing money to permit the Partnership to make distributions to its Partners in such amounts as will permit the Company (so long as the Company qualifies as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Section 4981 of the Code) and to make distributions to its stockholders in amounts sufficient to permit the Company to maintain REIT status, (b) the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, (c) the issuance of evidences evidence of indebtednessindebtedness (including the securing of the same by deed, including indebtedness that is convertible into Partnership Securitiesmortgage, deed of trust or other lien or encumbrance on the Partnership's assets) and (d) the incurring of any other obligationsobligations it deems necessary for the conduct of the activities of the Partnership, including the payment of all expenses associated with the Company;
(ii2) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the PartnershipPartnership or the Company;
(iii3) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the Partnership (including the exercise or grant of any conversion, option, privilege, or subscription right or other right available in connection with any assets at any time held by the Partnership) or the merger or other combination of the Partnership with or into another Person (the matters described in this clause (iii) being subject, however, to any prior approval that may be required by Section 7.3)entity;
(iv4) the use of the assets of the Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms it sees fit, including including, without limitation, the financing of the conduct of the operations of the Company, the Partnership Group; subject to Section 7.6(a)or any of the Partnership's Subsidiaries, the lending of funds to other Persons (including other Group Members)including, without limitation, the Subsidiaries of the Partnership and/or the Company) and the repayment or guarantee of obligations of the Partnership Group and its Subsidiaries and any other Person in which it has an equity investment, and the making of capital contributions to its Subsidiaries; (5) the expansion, development, construction, leasing, repair, alteration, demolition or improvement of any member Hotel owned by the Partnership or any Subsidiary of the Partnership Group;
Partnership; (v6) the negotiation, execution execution, and performance of any contractscontracts (including, without limitation, the Participating Leases), conveyances or other instruments (including instruments that limit the liability of General Partner considers useful or necessary to the Partnership under contractual arrangements to all or particular assets conduct of the Partnership, with 's operations or the other party to the contract to have no recourse against implementation of the General Partner or its assets Partner's powers under this Agreement, including contracting with contractors, developers, consultants, accountants, legal counsel, other than its interest in professional advisors and other agents and the payment of their expenses and compensation out of the Partnership, even if same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case);
's assets; (vi7) the distribution of Partnership cash;
(vii) the selection and dismissal of employees (including employees having titles such as “president,” “vice president,” “secretary” and “treasurer”) and agents, outside attorneys, accountants, consultants and contractors and the determination of their compensation and other terms of employment or hiring;
(viii) the maintenance of such insurance for the benefit of the Partnership Group and the Partners as it deems necessary or appropriate;
(ix) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies cash or other relationships (including the acquisition of interests in, and the contributions of property to, any Group Member from time to time) subject to the restrictions set forth Partnership assets in Section 2.4;
(x) the control of any matters affecting the rights and obligations of the Partnership, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigation and the incurring of legal expense and the settlement of claims and litigation;
(xi) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the entering into of listing agreements accordance with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.8);
(xiii) unless restricted or prohibited by Section 5.7, the purchase, sale or other acquisition or disposition of Partnership Securities, or the issuance of additional options, rights, warrants and appreciation rights relating to Partnership Securities; and
(xiv) the undertaking of any action in connection with the Partnership’s participation in any Group Member as a member or partner.
(b) Notwithstanding any other provision of this Agreement, the Operating Company Agreement, the Delaware Act or any applicable law, rule or regulation, each of the Partners and the Assignees and each other Person who may acquire an interest in Partnership Securities hereby (i) approves, ratifies and confirms the execution, delivery and performance by the parties thereto of the Operating Company Agreement, any other limited liability company or partnership agreement of any other Group Member, the Underwriting Agreement, the Omnibus Agreement, the Contribution Agreement and the other agreements described in or filed as exhibits to the Registration Statement that are related to the transactions contemplated by the Registration Statement; (ii) agrees that the General Partner (on its own or through any officer of the Partnership) is authorized to execute, deliver and perform the agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership without any further act, approval or vote of the Partners or the Assignees or the other Persons who may acquire an interest in Partnership Securities; and (iii) agrees that the execution, delivery or performance by the General Partner, any Group Member or any Affiliate of any of them, of this Agreement or any agreement authorized or permitted under this Agreement (including the exercise by the General Partner or any Affiliate of the General Partner of the rights accorded pursuant to Article XV), shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement (or any other agreements) or of any duty stated or implied by law or equity.;
Appears in 1 contract
Samples: Limited Partnership Agreement (Meristar Hospitality Corp)
Management. (a) The General Partner shall conduct, direct and manage all activities of the Partnership. Except as otherwise expressly provided in this Agreement, all management powers over the business and affairs of the Partnership LLC are and shall be exclusively vested in the General PartnerManager Member, and no Limited Partner or Assignee Member (other than the Manager Member) shall have any right to participate in or exercise control or management power over the business and affairs of the PartnershipLLC. The Manager Member may not be removed by the Members with or without cause. In addition to the powers now or hereafter granted a general partner manager of a limited partnership liability company under applicable law or which are granted to the General Partner Manager Member under any other provision of this Agreement, the General PartnerManager Member, subject to Section 7.3Sections 4.3, 10.6 and 10.7 hereof, and shall have full power and authority to do all things and on such terms as it, in its sole discretion, may deem deemed necessary or appropriate desirable by it to conduct the business of the PartnershipLLC, to exercise all powers set forth in Section 2.5 2.3 hereof and to effectuate the purposes set forth in Section 2.42.2 hereof, including the followingincluding, without limitation:
(i) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money to permit the LLC to make distributions to its Members in such amounts as will permit the Company (so long as the Company qualifies as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Section 4981 of the Code) and to make distributions to its shareholders in amounts sufficient to permit the Company to maintain REIT status), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences evidence of indebtednessindebtedness (including the securing of the same by deed, including indebtedness that is convertible into Partnership Securitiesmortgage, deed of trust or other lien or encumbrance on the LLC's assets) and the incurring of any other obligationsobligations it deems necessary for the conduct of the activities of the LLC;
(ii) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the PartnershipLLC;
(iii) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the Partnership LLC (including the exercise or grant of any conversion, option, privilege, or subscription right or other right available in connection with any assets at any time held by the LLC) or the merger or other combination of the Partnership LLC with or into another Person entity (all of the matters described in this clause (iii) being subject, however, foregoing subject to any prior approval that may be only to the extent required by Section 7.34.3 hereof);
(iv) the use of the assets of the Partnership LLC (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms it sees fit, including including, without limitation, the financing of the conduct of the operations of the Partnership Group; subject to Section 7.6(a)Company, the LLC or any of the LLC's Subsidiaries, the lending of funds to other Persons (including other Group Members)including, without limitation, Company or the Subsidiaries of the LLC and/or the Company) and the repayment or guarantee of obligations of the Partnership Group LLC and its Subsidiaries and any other Person in which it has an equity investment, and the making of capital contributions to any member of the Partnership Groupits Subsidiaries;
(v) the management, operation, leasing, landscaping, repair, alteration, demolition or improvement of any real property or improvements owed by the LLC or any Subsidiary of the LLC;
(vi) the negotiation, execution execution, and performance of any contracts, conveyances or other instruments (including instruments that limit the liability Manager Member considers useful or necessary to the conduct of the Partnership under contractual arrangements to all LLC's operations or particular assets the implementation of the PartnershipManager Member's powers under this Agreement, including contracting with contractors, developers, consultants, accountants, legal counsel, other professional advisors and other agents and the other party to the contract to have no recourse against the General Partner or its assets other than its interest in the Partnership, even if same results in the terms payment of their expenses and compensation out of the transaction being less favorable to the Partnership than would otherwise be the case);
(vi) the distribution of Partnership cashLLC's assets;
(vii) the distribution of LLC cash or other LLC assets in accordance with this Agreement;
(viii) holding, managing, investing and reinvesting cash and other assets of the LLC;
(ix) the collection and receipt of revenues and income of the LLC;
(x) the establishment of one or more divisions of the LLC, the selection and dismissal of employees of the LLC (including including, without limitation, employees having titles such as “"president,” “" "vice president,” “" "secretary” " and “"treasurer”) " of the LLC), and agents, outside attorneys, accountants, consultants and contractors of the LLC, and the determination of their compensation and other terms of employment or hiring;
(viiixi) the maintenance of such insurance for the benefit of the Partnership Group LLC and the Partners Members as it deems necessary or appropriate;
(ixxii) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited liability companies, limited or general partnerships, joint ventures, corporations, limited liability companies ventures or other relationships that it deems desirable (including including, without limitation, the acquisition of interests in, and the contributions of property to, its Subsidiaries and any Group Member other Person in which it has an equity investment from time to time) subject to the restrictions set forth in Section 2.4);
(xxiii) the control of any matters affecting the rights and obligations of the PartnershipLLC, including the bringing settlement, compromise, submission to arbitration or any other form of dispute resolution, or abandonment of, any claim, cause of action, liability, debt or damages, due or owing to or from the LLC, the commencement or defense of suits, legal proceedings, administrative proceedings, arbitration or other forms of dispute resolution, and defending the representation of actions at law the LLC in all suits or in equity and otherwise engaging in the conduct legal proceedings, administrative proceedings, arbitrations or other forms of litigation and dispute resolution, the incurring of legal expense expense, and the settlement of claims and litigation;
(xi) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.8);
(xiii) unless restricted or prohibited by Section 5.7, the purchase, sale or other acquisition or disposition of Partnership Securities, or the issuance of additional options, rights, warrants and appreciation rights relating to Partnership Securities; and
(xiv) the undertaking of any action in connection with the Partnership’s participation LLC's direct or indirect investment in its Subsidiaries or any Group Member as a member other Person (including, without limitation, the contribution or partner.loan of funds by the LLC to such Persons);
(bxv) Notwithstanding any other provision of this Agreement, the Operating Company Agreement, the Delaware Act or any applicable law, rule or regulation, each determination of the Partners and fair market value of any LLC property distributed in kind using such reasonable method of valuation as the Assignees and each other Person who Manager Member may acquire an interest in Partnership Securities hereby adopt;
(ixvi) approvesthe exercise, ratifies and confirms directly or indirectly, through any attorney-in-fact acting under a general or limited power of attorney, of any right, including the executionright to vote, delivery and performance appurtenant to any asset or investment held by the parties thereto LLC;
(xvii) the exercise of any of the Operating Company Agreement, any other limited liability company or partnership agreement of any other Group Member, the Underwriting Agreement, the Omnibus Agreement, the Contribution Agreement and the other agreements described in or filed as exhibits to the Registration Statement that are related to the transactions contemplated by the Registration Statement; (ii) agrees that the General Partner (on its own or through any officer powers of the Partnership) is authorized to execute, deliver and perform the agreements referred to Manager Member enumerated in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement Agreement on behalf of the Partnership without or in connection with any further act, approval or vote Subsidiary of the Partners or the Assignees or the other Persons who may acquire an interest in Partnership Securities; and (iii) agrees that the execution, delivery or performance by the General Partner, any Group Member LLC or any Affiliate other Person in which the LLC has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(xviii) the exercise of any of them, the powers of the Manager Member enumerated in this Agreement on behalf of any Person in which the LLC does not have an interest pursuant to contractual or other arrangements with such Person;
(xix) the making, execution and delivery of any agreement authorized and all deeds, leases, notes, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or permitted under this Agreement (including legal instruments or agreements in writing necessary or appropriate, in the exercise by the General Partner or any Affiliate judgment of the General Partner Manager Member, for the accomplishment of any of the rights accorded powers of the Manager Member enumerated in this Agreement; and
(xx) the issuance of additional Units, as appropriate, in connection with Capital Contributions by Additional Members and additional Capital Contributions by Members pursuant to Article XV), shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement (or any other agreements) or of any duty stated or implied by law or equityArticles 3 hereof.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Kimco Realty Corp)
Management. (a) The General Partner shall conduct, direct and manage all activities of the Partnership. 7.1.1 Except as otherwise expressly provided in this Agreement, all management powers over the business and affairs of the Partnership are and shall be exclusively vested in the General Partner, and no Limited Partner or Assignee shall have any right to participate in or exercise control or management power over the business and affairs of the Partnership. The General Partner may not be removed by the Partners with or without cause, except with the consent of the General Partner. In addition to the powers now or hereafter granted to a general partner of a limited partnership under applicable law or which that are granted to the General Partner under any other provision of this Agreement, the General Partner, subject to Section 7.3the other provisions hereof, shall have full power and authority to do all things and on such terms as it, in its sole discretion, may deem deemed necessary or appropriate desirable by it to conduct the business of the Partnership, to exercise all powers set forth in Section 2.5 3.2 hereof and to effectuate the purposes set forth in Section 2.43.1 hereof, including the followingincluding, without limitation:
(ia) the making of any expenditures, the lending or borrowing of moneymoney (including making prepayments on loans and borrowing money or selling assets to permit the Partnership to make distributions to its Partners in such amounts as will permit the General Partner (so long as the General Partner desires to maintain or restore its status as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Code Section 4981) and to make distributions sufficient to permit the General Partner to maintain or restore REIT status or otherwise to satisfy the REIT Requirements), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtednessindebtedness (including the securing of same by deed to secure debt, including indebtedness that is convertible into Partnership Securitiesmortgage, deed of trust or other lien or encumbrance on the Partnership’s assets) and the incurring of any other obligationsobligations that it deems necessary for the conduct of the activities of the Partnership;
(iib) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership;
(iiic) the acquisition, dispositionsale, mortgagelease, pledgetransfer, encumbranceexchange or other disposition of any, hypothecation all or exchange of any or substantially all of the assets of the Partnership (including, but not limited to, the exercise or grant of any conversion, option, privilege or subscription right or any other right available in connection with any assets at any time held by the merger Partnership) or, subject to Section 8.6, the merger, consolidation, reorganization or other combination of the Partnership with or into another Person (the matters described in this clause (iii) being subject, however, to any prior approval that may be required by Section 7.3)entity;
(ivd) the mortgage, pledge, encumbrance or hypothecation of any assets of the Partnership, the use of the assets of the Partnership (including cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms that it sees fit, including the financing of the conduct operations and activities of the operations General Partner, the Partnership or any of the Partnership Group; subject to Section 7.6(a)Partnership’s Subsidiaries, the lending of funds to other Persons (including other Group Members), the Partnership’s Subsidiaries) and the repayment or guarantee of obligations of the Partnership, its Subsidiaries and any other Person in which the Partnership Group has an equity investment, and the making of capital contributions to and equity investments in the Partnership’s Subsidiaries;
(e) the management, operation, leasing, landscaping, repair, alteration, demolition, replacement or improvement of any member Property, including any Contributed Property, or other asset of the Partnership Groupor any Subsidiary, whether pursuant to a Services Agreement or otherwise;
(vf) the negotiation, execution and performance of any contracts, leases, conveyances or other instruments (including instruments that limit the liability General Partner considers useful or necessary to the conduct of the Partnership’s operations or the implementation of the General Partner’s powers under this Agreement, including contracting with contractors, developers, consultants, accountants, legal counsel, the Advisor’s other professional advisors and other agents and the payment of their expenses and compensation out of the Partnership’s assets;
(g) the distribution of Partnership under contractual arrangements to all cash or particular other Partnership assets in accordance with this Agreement, the holding, management, investment and reinvestment of cash and other assets of the Partnership, with and the other party to the contract to have no recourse against the General Partner or its assets other than its interest in collection and receipt of revenues, rents and income of the Partnership, even if same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case);
(vi) the distribution of Partnership cash;
(vii) the selection and dismissal of employees (including employees having titles such as “president,” “vice president,” “secretary” and “treasurer”) and agents, outside attorneys, accountants, consultants and contractors and the determination of their compensation and other terms of employment or hiring;
(viiih) the maintenance of such insurance for the benefit of the Partnership Group and the Partners as it deems necessary or appropriate, including (i) casualty, liability and other insurance on the Properties and (ii) liability insurance for the Indemnitees hereunder;
(ixi) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies companies, joint ventures or other relationships that it deems desirable (including the acquisition of interests in, and the contributions of property to, any Group Member Subsidiary and any other Person in which it has an equity investment from time to time) subject to the restrictions set forth in Section 2.4);
(xj) the control of any matters affecting the rights and obligations of the Partnership, including the bringing settlement, compromise, submission to arbitration or any other form of dispute resolution, or abandonment, of any claim, cause of action, liability, debt or damages, due or owing to or from the Partnership, the commencement or defense of suits, legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, and defending the representation of actions at law the Partnership in all suits or in equity and otherwise engaging in the conduct legal proceedings, administrative proceedings, arbitrations or other forms of litigation and dispute resolution, the incurring of legal expense expense, and the settlement of claims and litigation;
(xi) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.8);
(xiii) unless restricted or prohibited by Section 5.7, the purchase, sale or other acquisition or disposition of Partnership Securities, or the issuance of additional options, rights, warrants and appreciation rights relating to Partnership Securities; and
(xivk) the undertaking of any action in connection with the Partnership’s participation direct or indirect investment in any Group Member as a member Subsidiary or partner.any other Person (including the contribution of Property or contribution or loan of funds by the Partnership to such Persons);
(bl) Notwithstanding any other provision of except as otherwise specifically set forth in this Agreement, the Operating Company Agreement, the Delaware Act or any applicable law, rule or regulation, each determination of the Partners fair market value of any Partnership property distributed in kind using such method of valuation as it may reasonably adopt as long as such method is otherwise consistent with the requirements of this Agreement;
(m) the enforcement of any rights against any Partner pursuant to representations, warranties, covenants and indemnities relating to such Partner’s contribution of property or assets to the Assignees and each other Person who may acquire an interest in Partnership Securities hereby Partnership;
(in) approvesthe exercise, ratifies and confirms directly or indirectly, through any attorney-in-fact acting under a general or limited power of attorney, of any right, including the executionright to vote, delivery and performance appurtenant to any asset or investment held by the parties thereto Partnership;
(o) the exercise of any of the Operating Company Agreement, any other limited liability company or partnership agreement powers of any other Group Member, the Underwriting Agreement, the Omnibus Agreement, the Contribution Agreement and the other agreements described in or filed as exhibits to the Registration Statement that are related to the transactions contemplated by the Registration Statement; (ii) agrees that the General Partner (enumerated in this Agreement on its own behalf of or through in connection with any officer Subsidiary of the PartnershipPartnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(p) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest, pursuant to contractual or other arrangements with such Person;
(q) the making, execution and delivery of any and all deeds, leases, notes, deeds to secure debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate in the judgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement;
(r) the issuance of additional Partnership Units, as appropriate and in the General Partner’s sole and absolute discretion, in connection with Capital Contributions by Additional Limited Partners and additional Capital Contributions by Partners pursuant to Section 4 hereof;
(s) the selection and dismissal of Partnership Employees (including employees having titles or offices such as president, vice president, secretary and treasurer), and agents, outside attorneys, accountants, consultants and contractors of the Partnership or the General Partner, the determination of their compensation and other terms of employment or hiring and the delegation to any such Partnership Employee the authority to conduct the business of the Partnership in accordance with the terms of this Agreement; and
(t) an election to dissolve the Partnership pursuant to Section 13.1.2 hereof.
7.1.2 Except as provided in Section 14.2 hereof, the General Partner is authorized to execute, deliver and perform the above-mentioned agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership without any further act, approval or vote of the Partners Partners, notwithstanding any other provision of this Agreement, the Act or any applicable law, rule or regulation. To the Assignees or the other Persons who may acquire an interest in Partnership Securities; and (iii) agrees that fullest extent permitted by law, the execution, delivery or performance by the General Partner, any Group Member Partner or any Affiliate the Partnership of any of them, of this Agreement or any agreement authorized or permitted under this Agreement (including the exercise by the General Partner or any Affiliate of the General Partner of the rights accorded pursuant to Article XV), shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement (or any other agreements) or of any duty stated or implied by law or equity.
7.1.3 At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain working capital and other reserves in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
7.1.4 In exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner (including the General Partner) of any action taken by it. The General Partner and the Partnership shall not have liability to a Limited Partner under any circumstances as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner pursuant to its authority under this Agreement.
7.1.5 The General Partner may not take any action in contravention of this Agreement, including, without limitation:
(a) taking any action that would make it impossible to carry on the ordinary business of the Partnership, except as otherwise provided in this Agreement;
(b) possessing Property, or assigning any rights in specific Property, for other than a Partnership purpose except as otherwise provided in this Agreement, including Section 7.9;
(c) admitting a Person as a Partner, except as otherwise provided in this Agreement;
(d) performing any act that would subject a Limited Partner to liability as a general partner in any jurisdiction or any other liability except as otherwise provided in this Agreement or under the Act; or
(e) entering into any contract, mortgage, loan or other agreement that prohibits or restricts the ability of (a) the General Partner or the Partnership from satisfying its obligations under Section 8.5 hereof in full or (b) a Limited Partner from exercising its rights under Section 8.5 hereof to effect a Redemption in full, except, in either case, with the written consent of such Limited Partner adversely affected by the prohibition or restriction.
Appears in 1 contract
Samples: Limited Partnership Agreement (Pacific Office Properties Trust, Inc.)
Management. (a) The General Partner shall conduct, direct and manage all activities of the Partnership. A. Except as otherwise expressly provided in this Agreement, all management powers over the business and affairs of the Partnership are and shall be exclusively vested in the General Partner, and no Limited Partner or Assignee shall have any right to participate in or exercise control or management power over the business and affairs of the Partnership. The General Partner may not be removed by the Partners with or without cause, except with the consent of the General Partner. In addition to the powers now or hereafter granted to a general partner of a limited partnership under applicable law or which that are granted to the General Partner under any other provision of this Agreement, the General Partner, subject to the other provisions hereof including Section 7.3, shall have full power and authority to do all things and on such terms as it, in its sole discretion, may deem deemed necessary or appropriate desirable by it to conduct the business of the Partnership, to exercise all powers set forth in Section 2.5 3.2 hereof and to effectuate the purposes set forth in Section 2.43.1 hereof, including the followingincluding, without limitation:
(i1) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money or selling assets to permit the Partnership to make distributions to its Partners in such amounts as will permit the Parent REIT (so long as the Parent REIT desires to maintain or restore its status as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Code Section 4981) and to make distributions sufficient to permit the Parent REIT to maintain or restore REIT status or otherwise to satisfy the REIT Requirements), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtednessindebtedness (including the securing of same by deed to secure debt, including indebtedness that is convertible into Partnership Securitiesmortgage, deed of trust or other lien or encumbrance on the Partnership's assets) and the incurring of any other obligationsobligations that it deems necessary for the conduct of the activities of the Partnership;
(ii2) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership;
(iii3) the acquisition, dispositionsale, mortgagelease, pledgetransfer, encumbranceexchange or other disposition of any, hypothecation all or exchange of any or substantially all of the assets of the Partnership (including, but not limited to, the exercise or grant of any conversion, option, privilege or subscription right or any other right available in connection with any assets at any time held by the Partnership) or the merger merger, consolidation, reorganization or other combination of the Partnership with or into another Person (the matters described in this clause (iii) being subject, however, to any prior approval that may be required by Section 7.3)entity;
(iv4) the mortgage, pledge, encumbrance or hypothecation of any assets of the Partnership, the use of the assets of the Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms that it sees fit, including including, without limitation, the financing of the conduct operations and activities of the operations Parent REIT, the General Partner, the Partnership or any of the Partnership Group; subject to Section 7.6(a)Partnership's Subsidiaries, the lending of funds to other Persons (including other Group Members)including, without limitation, the Partnership's Subsidiaries) and the repayment or guarantee of obligations of the Partnership, its Subsidiaries and any other Person in which the Partnership Group has an equity investment, and the making of capital contributions to and equity investments in the Partnership's Subsidiaries;
(5) the management, operation, leasing, landscaping, repair, alteration, demolition, replacement or improvement of any member Property, including, without limitation, any Contributed Property, or other asset of the Partnership Groupor any Subsidiary, whether pursuant to a Services Agreement or otherwise;
(v6) the negotiation, execution and performance of any contracts, leases, conveyances or other instruments (including instruments that limit the liability General Partner considers useful or necessary to the conduct of the Partnership's operations or the implementation of the General Partner's powers under this Agreement, including contracting with contractors, developers, consultants, accountants, legal counsel, other professional advisors and other agents and the payment of their expenses and compensation out of the Partnership's assets;
(7) the distribution of Partnership under contractual arrangements to all cash or particular other Partnership assets in accordance with this Agreement, the holding, management, investment and reinvestment of cash and other assets of the Partnership, with and the other party to the contract to have no recourse against the General Partner or its assets other than its interest in collection and receipt of revenues, rents and income of the Partnership, even if same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case);
(vi) the distribution of Partnership cash;
(vii) the selection and dismissal of employees (including employees having titles such as “president,” “vice president,” “secretary” and “treasurer”) and agents, outside attorneys, accountants, consultants and contractors and the determination of their compensation and other terms of employment or hiring;
(viii) 8) the maintenance of such insurance for the benefit of the Partnership Group and the Partners as it deems necessary or appropriate, including, without limitation, (i) casualty, liability and other insurance on the Properties and (ii) liability insurance for the Indemnitees hereunder;
(ix9) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies companies, joint ventures or other relationships that it deems desirable (including including, without limitation, the acquisition of interests in, and the contributions of property to, any Group Member Subsidiary and any other Person in which it has an equity investment from time to time) subject ); provided, however, that, as long as the Parent REIT has determined to continue to qualify as a REIT, the restrictions set forth General Partner may not engage in any such formation, acquisition or contribution that would cause the Parent REIT to fail to qualify as a REIT within the meaning of Code Section 2.4856(a);
(x10) the control of any matters affecting the rights and obligations of the Partnership, including the bringing settlement, compromise, submission to arbitration or any other form of dispute resolution, or abandonment, of any claim, cause of action, liability, debt or damages, due or owing to or from the Partnership, the commencement or defense of suits, legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, and defending the representation of actions at law the Partnership in all suits or in equity and otherwise engaging in the conduct legal proceedings, administrative proceedings, arbitrations or other forms of litigation and dispute resolution, the incurring of legal expense expense, and the settlement of claims and litigation;
(xi) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.8);
(xiii) unless restricted or prohibited by Section 5.7, the purchase, sale or other acquisition or disposition of Partnership Securities, or the issuance of additional options, rights, warrants and appreciation rights relating to Partnership Securities; and
(xiv11) the undertaking of any action in connection with the Partnership’s participation 's direct or indirect investment in any Group Member as a member Subsidiary or partner.any other Person (including, without limitation, the contribution or loan of funds by the Partnership to such Persons);
(b12) Notwithstanding any other provision of except as otherwise specifically set forth in this Agreement, the Operating Company Agreement, the Delaware Act or any applicable law, rule or regulation, each determination of the Partners fair market value of any Partnership property distributed in kind using such reasonable method of valuation as it may adopt; provided that such methods are otherwise consistent with the requirements of this Agreement;
(13) the enforcement of any rights against any Partner pursuant to representations, warranties, covenants and indemnities relating to such Partner's contribution of property or assets to the Assignees and each other Person who may acquire an interest in Partnership Securities hereby Partnership;
(i14) approvesthe exercise, ratifies and confirms directly or indirectly, through any attorney-in-fact acting under a general or limited power of attorney, of any right, including the executionright to vote, delivery and performance appurtenant to any asset or investment held by the parties thereto Partnership;
(15) the exercise of any of the Operating Company Agreement, any other limited liability company or partnership agreement powers of any other Group Member, the Underwriting Agreement, the Omnibus Agreement, the Contribution Agreement and the other agreements described in or filed as exhibits to the Registration Statement that are related to the transactions contemplated by the Registration Statement; (ii) agrees that the General Partner (enumerated in this Agreement on its own behalf of or through in connection with any officer Subsidiary of the PartnershipPartnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(16) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest, pursuant to contractual or other arrangements with such Person;
(17) the making, execution and delivery of any and all deeds, leases, notes, deeds to secure debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate in the judgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement;
(18) the issuance of additional Partnership Units, as appropriate and in the General Partner's sole and absolute discretion, in connection with Capital Contributions by Additional Limited Partners and additional Capital Contributions by Partners pursuant to Article 4 hereof;
(19) the selection and dismissal of Company Employees (including, without limitation, employees having titles or offices such as president, vice president, secretary and treasurer), and agents, outside attorneys, accountants, consultants and contractors of the Partnership or the General Partner, the determination of their compensation and other terms of employment or hiring and the delegation to any such Company Employee the authority to conduct the business of the Partnership in accordance with the terms of this Agreement; and
(20) an election to dissolve the Partnership pursuant to Section 13.1.C hereof.
B. Each of the Limited Partners agrees that, except as provided in Section 7.3 hereof, the General Partner is authorized to execute, deliver and perform the above-mentioned agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership without any further act, approval or vote of the Partners Partners, notwithstanding any other provision of this Agreement, the Act or the Assignees any applicable law, rule or the other Persons who may acquire an interest in Partnership Securities; and (iii) agrees that the regulation. The execution, delivery or performance by the General Partner, any Group Member Partner or any Affiliate the Partnership of any of them, of this Agreement or any agreement authorized or permitted under this Agreement (including the exercise by the General Partner or any Affiliate of the General Partner of the rights accorded pursuant to Article XV), shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement (or any other agreements) or of any duty stated or implied by law or equity.
C. At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain working capital and other reserves in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
D. In exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner (including the General Partner) of any action taken by it. The General Partner and the Partnership shall not have liability to a Limited Partner under any circumstances as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner pursuant to its authority under this Agreement.
Appears in 1 contract
Samples: Agreement of Limited Partnership (Arbor Realty Trust Inc)
Management. (ai) The General Partner shall conduct, direct and manage all activities of the Partnership. Except as otherwise expressly provided in this Agreement, all management powers over full, complete and exclusive discretion to manage and control the business and affairs of the Partnership are and shall be exclusively vested in the General Partner, and no Limited Partner or Assignee shall have any right to participate in or exercise control or management power over the business and affairs of the Partnership. .
(ii) The General Partner may not be removed by the Limited Partners with or without cause.
(iii) In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or which are granted to the General Partner under any other provision of this Agreement, the General Partner, subject to Section 7.37.11, shall have full power and authority to do all things and on such terms as it, in its sole discretion, may deem deemed necessary or appropriate desirable by it to conduct the business of the Partnership, to exercise all powers set forth in Section 2.5 3.2 hereof and to effectuate the purposes set forth in Section 2.43.1 hereof, including the followingincluding:
(i1) the making of any expenditures, the lending or borrowing of money, including making prepayments on loans and borrowing money to permit the Partnership to make distributions to its Partners in such amounts as will permit the Initial Limited Partner (so long as the Initial Limited Partner qualifies as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Section 4981 of the Code) and to make distributions to its Stockholders in amounts sufficient to permit the Initial Limited Partner to maintain REIT status,
(2) the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, ,
(3) the issuance of evidences evidence of indebtednessindebtedness (including the securing of the same by deed, including indebtedness that is convertible into Partnership Securitiesmortgage, and deed of trust or other lien or encumbrance on the Partnership’s assets) and
(4) the incurring of any other obligationsobligations it deems necessary for the conduct of the activities of the Partnership, including the payment of all expenses associated with the General Partner;
(iiB) the acquisition, purchase, ownership, operating, leasing and disposition of any real property and any other property or assets, including mortgages and real estate-related notes, whether directly or indirectly;
(C) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the PartnershipPartnership or the Initial Limited Partner;
(iiiD) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any all or substantially all of the assets of the Partnership (including the exercise or grant of any conversion, option, privilege, or subscription right or other right available in connection with any assets at any time held by the Partnership) or the merger merger, consolidation or other combination (each a “Business Combination”) of the Partnership with or into another Person (Entity on such terms as the matters described in this clause (iii) being subjectGeneral Partner deems proper, provided, however, to any prior approval that may the General Partner shall be required by Section 7.3)to send to each Limited Partner a notice of such proposed Business Combination no less than 15 days prior to the record date for the vote of the Initial Limited Partner’s Stockholders on such Business Combination, if any;
(ivE) the use of the assets of the Partnership (including cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms it sees fit, including including,
(1) the financing of the conduct of the operations of the Initial Limited Partner, the Partnership Group; subject to Section 7.6(a), or any of the Partnership’s Subsidiaries,
(2) the lending of funds to other Persons (including other Group Members), the Subsidiaries of the Partnership and/or the Initial Limited Partner) and the repayment or guarantee of obligations of the Partnership Group and its Subsidiaries and any other Person in which it has an equity investment, and
(3) the making of capital contributions to its Subsidiaries;
(F) the expansion, development, redevelopment, construction, leasing, repair, rehabilitation, repositioning, alteration, demolition or improvement of any member property in which the Partnership or any Subsidiary of the Partnership Groupowns an interest;
(vG) the negotiation, execution execution, and performance of any contracts, conveyances or other instruments (including instruments that limit the liability of General Partner considers useful or necessary to the Partnership under contractual arrangements to all or particular assets conduct of the Partnership, with ’s operations or the other party to the contract to have no recourse against implementation of the General Partner or its assets Partner’s powers under this Agreement, including contracting with contractors, developers, consultants, accountants, legal counsel, other than its interest in professional advisors and other agents and the payment of their expenses and compensation out of the Partnership, even if same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case)’s assets;
(viH) the distribution of Partnership cashcash or other Partnership assets in accordance with this Agreement;
(viiI) holding, managing, investing and reinvesting cash and other assets of the Partnership;
(J) the collection and receipt of revenues and income of the Partnership;
(K) the establishment of one or more divisions of the Partnership, the selection and dismissal of employees of the Partnership (including employees having titles such as “president,” ”, “vice president,” ”, “secretary” and “treasurer”) ” of the Partnership), and agents, outside attorneys, accountants, consultants and contractors of the Partnership, and the determination of their compensation and other terms of employment or hiringengagement;
(viiiL) the maintenance of such insurance for the benefit of the Partnership Group and the Partners and directors and officers thereof as it deems necessary or appropriate;
(ixM) the formation of, or acquisition of an interest (including non-voting interests in entities controlled by Affiliates of the Partnership or third parties) in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies Entities or other relationships (that it deems desirable, including the acquisition of interests in, and the contributions of funds or property to, or making of loans to, its Subsidiaries and any Group Member other Person from time to time) subject , or the incurrence of indebtedness on behalf of such Persons or the guarantee of the obligations of such Persons; provided, however, that as long as the Initial Limited Partner has determined to elect to qualify as a REIT or to continue to qualify as a REIT, the restrictions set forth Partnership may not engage in Section 2.4any such formation, acquisition or contribution that would cause the Initial Limited Partner to fail to qualify as a REIT;
(xN) the control of any matters affecting the rights and obligations of the Partnership, including including
(1) the bringing and defending settlement, compromise, submission to arbitration or any other form of actions at law dispute resolution, or abandonment of, any claim, cause of action, liability, debt or damages, due or owing to or from the Partnership,
(2) the commencement or defense of suits, legal proceedings, administrative proceedings, arbitration or other forms of dispute resolution, and
(3) the representation of the Partnership in equity and otherwise engaging in the conduct all suits or legal proceedings, administrative proceedings, arbitrations or other forms of litigation and dispute resolution, the incurring of legal expense expenses, and the settlement of claims and litigation;
(xi) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.8);
(xiii) unless restricted or prohibited by Section 5.7, the purchase, sale or other acquisition or disposition of Partnership Securities, or the issuance of additional options, rights, warrants and appreciation rights relating to Partnership Securities; and
(xivO) the undertaking of any action in connection with the Partnership’s participation direct or indirect investment in its Subsidiaries or any Group Member as a member other Person (including the contribution or partner.loan of funds by the Partnership to such Persons);
(bP) Notwithstanding the determination of the fair market value of any Partnership property distributed in kind using such reasonable method of valuation as the General Partner, in its sole discretion, may adopt;
(Q) the exercise, directly or indirectly, through any attorney-in-fact acting under a general or limited power of attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(R) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other provision Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(S) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest pursuant to contractual or other arrangements with such Person;
(T) the making, execution and delivery of any and all deeds, leases, notes, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate, in the judgment of the General Partner, for the accomplishment of any of the foregoing;
(U) the issuance of additional Partnership Units in connection with Capital Contributions by Additional Limited Partners and additional Capital Contributions by Partners pursuant to Article 4 hereof;
(V) the authorization, issuance, sale, redemption or purchase of any Partnership Units or any securities of the Partnership;
(W) the opening of bank accounts on behalf of, and in the name of, the Partnership and its Subsidiaries; and
(X) the amendment and restatement of Exhibit A to reflect accurately at all times the Capital Contributions and Percentage Interests of the Partners as the same are adjusted from time to time to the extent necessary to reflect redemptions, Capital Contributions, the issuance of Partnership Units, the admission of any Additional Limited Partner or any Substituted Limited Partner or otherwise, which amendment and restatement, notwithstanding anything in this Agreement to the contrary, shall not be deemed an amendment of this Agreement, as long as the Operating Company matter or event being reflected in Exhibit A otherwise is authorized by this Agreement, the Delaware Act or any applicable law, rule or regulation, each of the Partners and the Assignees and each other Person who may acquire an interest in Partnership Securities hereby .
(i) approves, ratifies and confirms the execution, delivery and performance by the parties thereto Each of the Operating Company Agreement, any other limited liability company or partnership agreement of any other Group Member, the Underwriting Agreement, the Omnibus Agreement, the Contribution Agreement and the other agreements described in or filed as exhibits to the Registration Statement that are related to the transactions contemplated by the Registration Statement; (ii) agrees Limited Partners agree that the General Partner (on its own or through any officer of the Partnership) is authorized to execute, deliver and perform the above-mentioned agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership without any further act, approval or vote of the Partners Partners, notwithstanding any other provision of this Agreement to the fullest extent permitted under the Act or the Assignees other applicable law, rule or the other Persons who may acquire an interest in Partnership Securities; and regulation.
(iiiii) agrees that the The execution, delivery or performance by the General Partner, any Group Member Partner or any Affiliate the Partnership of any of them, of this Agreement or any agreement authorized or permitted under this Agreement (including the exercise by the General Partner or any Affiliate of the General Partner of the rights accorded pursuant to Article XV), shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement (or any other agreements) or of any duty stated or implied by law or equity.
(c) At all times from and after the date hereof, the General Partner at the expense of the Partnership, may or may not, cause the Partnership to obtain and maintain
(i) casualty, liability and other insurance on the properties of the Partnership;
(ii) liability insurance for the Indemnitees hereunder; and
(iii) such other insurance as the General Partner, in its sole and absolute discretion, determines to be appropriate and reasonable.
(d) At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain at any and all times working capital accounts and other cash or similar balances in such amount as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
(i) In exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner (including the General Partner) of any action taken (or not taken) by it. The General Partner and the Partnership shall not have liability to any Limited Partner for monetary damages or otherwise for losses sustained, liabilities incurred or benefits not derived by such Limited Partner in connection with such decisions; provided, that the General Partner has acted in good faith pursuant to its authority under this Agreement. The Limited Partners expressly acknowledge that the General Partner is acting on behalf of the Partnership, the General Partner, the Initial Limited Partner and the Initial Limited Partner’s Stockholders, collectively.
(ii) The General Partner and the Partnership shall not have liability to any Limited Partner or the Special Limited Partner under any circumstances as a result of an income tax liability incurred by such Limited Partner or the Special Limited Partner as a result of an action (or inaction) by the General Partner taken pursuant to its authority under and in accordance with this Agreement.
Appears in 1 contract
Samples: Limited Partnership Agreement (Phillips Edison Grocery Center REIT III, Inc.)
Management. (a) The General Partner shall conduct, direct and manage all activities of the Partnership. A. Except as otherwise expressly provided in this Agreement, all management powers over the business and affairs of the Partnership are and shall be exclusively vested in the General Partner, and no Limited Partner or Assignee shall have any right to participate in or exercise control or management power over the business and affairs of the Partnership. The General Partner may not be removed by the Limited Partners with or without cause. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or which are granted to the General Partner under any other provision of this Agreement, the General Partner, subject to Section 7.3, Partner shall have full power and authority to do all things and on such terms as it, in its sole discretion, may deem deemed necessary or appropriate desirable by it to conduct the business of the Partnership, to exercise all powers set forth in Section 2.5 3.2 hereof and to effectuate the purposes set forth in Section 2.43.1 hereof, including including, without limitation (but in all cases subject to the following:terms of this Agreement):
(i1) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, money to be used to pay off a portion of the existing debt encumbering the Partnership's assets) and making prepayments on loans and borrowing money to permit the Partnership to make distributions to its Partners in such amounts as will permit PGP (so long as PGP qualifies as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Section 4981 of the Code) and to make distributions to its shareholders in amounts sufficient to permit PGP to maintain REIT status), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences evidence of indebtednessindebtedness (including the securing of the same by deed, including indebtedness that is convertible into Partnership Securitiesmortgage, deed of trust or other lien or encumbrance on the Partnership's assets) and the incurring of any other obligationsobligations it deems necessary for the conduct of the activities of the Partnership;
(ii2) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership;
(iii) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the Partnership or the merger or other combination of the Partnership with or into another Person (the matters described in this clause (iii) being subject, however, to any prior approval that may be required by Section 7.3);
(iv) the use of the assets of the Partnership (including cash on hand) for any purpose consistent with the terms of this Agreement, including the financing of the conduct of the operations of the Partnership Group; subject to Section 7.6(a), the lending of funds to other Persons (including other Group Members), the repayment or guarantee of obligations of the Partnership Group and the making of capital contributions to any member of the Partnership Group;
(v) the negotiation, execution and performance of any contracts, conveyances or other instruments (including instruments that limit the liability of the Partnership under contractual arrangements to all or particular assets of the Partnership, with the other party to the contract to have no recourse against the General Partner or its assets other than its interest in the Partnership, even if same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case);
(vi) the distribution of Partnership cash;
(vii) the selection and dismissal of employees (including employees having titles such as “president,” “vice president,” “secretary” and “treasurer”) and agents, outside attorneys, accountants, consultants and contractors and the determination of their compensation and other terms of employment or hiring;
(viii) the maintenance of such insurance for the benefit of the Partnership Group and the Partners as it deems necessary or appropriate;
(ix) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies or other relationships (including the acquisition of interests in, and the contributions of property to, any Group Member from time to time) subject to the restrictions set forth in Section 2.4;
(x) the control of any matters affecting the rights and obligations of the Partnership, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigation and the incurring of legal expense and the settlement of claims and litigation;
(xi) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.8);
(xiii) unless restricted or prohibited by Section 5.7, the purchase, sale or other acquisition or disposition of Partnership Securities, or the issuance of additional options, rights, warrants and appreciation rights relating to Partnership Securities; and
(xiv) the undertaking of any action in connection with the Partnership’s participation in any Group Member as a member or partner.
(b) Notwithstanding any other provision of this Agreement, the Operating Company Agreement, the Delaware Act or any applicable law, rule or regulation, each of the Partners and the Assignees and each other Person who may acquire an interest in Partnership Securities hereby (i) approves, ratifies and confirms the execution, delivery and performance by the parties thereto of the Operating Company Agreement, any other limited liability company or partnership agreement of any other Group Member, the Underwriting Agreement, the Omnibus Agreement, the Contribution Agreement and the other agreements described in or filed as exhibits to the Registration Statement that are related to the transactions contemplated by the Registration Statement; (ii) agrees that the General Partner (on its own or through any officer of the Partnership) is authorized to execute, deliver and perform the agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership without any further act, approval or vote of the Partners or the Assignees or the other Persons who may acquire an interest in Partnership Securities; and (iii) agrees that the execution, delivery or performance by the General Partner, any Group Member or any Affiliate of any of them, of this Agreement or any agreement authorized or permitted under this Agreement (including the exercise by the General Partner or any Affiliate of the General Partner of the rights accorded pursuant to Article XV), shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement (or any other agreements) or of any duty stated or implied by law or equity.
Appears in 1 contract
Samples: Limited Partnership Agreement (Pacific Gulf Properties Inc)
Management. (a) The General Partner shall conduct, direct and manage all activities of the Partnership. A. Except as otherwise expressly provided in this Agreement, all management powers over the business and affairs of the Partnership are and shall be exclusively vested in the General Partner, and no Limited Partner or Assignee shall have any right to participate in or exercise control or management power over the business and affairs of the Partnership. The General Partner may not be removed by the Partners with or without cause, except with the consent of the General Partner. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or which that are granted to the General Partner under any other provision of this Agreement, the General Partner, subject to Section 7.3the other provisions hereof, including Sections 7.3 and 7.4 hereof, shall have full power and authority to do all things and on such terms as it, in its sole discretion, may deem deemed necessary or appropriate desirable by it to conduct the business of the Partnership, to exercise all powers set forth in Section 2.5 3.2 hereof and to effectuate the purposes set forth in Section 2.43.1 hereof, including the followingincluding, without limitation:
(i1) the making of any expenditures, the lending or borrowing of moneymoney (including making prepayments on loans and borrowing money to permit the Partnership to make distributions to its Partners in such amounts as will permit the General Partner (so long as the General Partner qualifies as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Code Section 4981) and to make distributions to its shareholders sufficient to permit the General Partner to maintain REIT status or otherwise to satisfy the REIT Requirements), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtednessindebtedness (including the securing of same by mortgage, including indebtedness that is convertible into Partnership Securities, deed of trust or other lien or encumbrance on the Partnership's assets) and the incurring of any other obligationsobligations that it deems necessary for the conduct of the activities of the Partnership;
(ii2) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership;
(iii3) the acquisition, dispositionsale, transfer, exchange or other disposition of any assets of the Partnership;
(4) the mortgage, pledge, encumbrance, encumbrance or hypothecation or exchange of any or all of the assets of the Partnership or (including the merger or other combination of the Partnership with or into another Person (the matters described in this clause (iii) being subjectReal Property), however, to any prior approval that may be required by Section 7.3);
(iv) the use of the assets of the Partnership (including cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms that it sees fit, including the financing of the conduct operations and activities of the operations of the Partnership Group; subject to Section 7.6(a)Partnership, the lending of funds to other Persons (including other Group Members), and the repayment or guarantee of obligations of the Partnership Group and the making of capital contributions to any member of the Partnership GroupPartnership;
(v5) the management, operation, leasing, landscaping, repair, alteration, demolition, replacement or improvement of any property, including the Real Property, or other asset of the Partnership;
(6) the negotiation, execution and performance of any contracts, Leases, conveyances or other instruments (including instruments that limit the liability of General Partner considers useful or necessary to the Partnership under contractual arrangements to all or particular assets conduct of the Partnership's operations or the implementation of the General Partner's powers under this Agreement, including contracting with property managers (including as to the Real Property or other property, contracting with the contributing or any other party to Limited Partner or its Affiliates for property management services), contractors, developers, consultants, accountants, legal counsel, other professional advisors and other agents and the contract to have payment of their expenses and compensation out of the Partnership's assets; provided, however, that in no recourse against event shall the General Partner enter into any such contract or its assets other than its interest lease for any consideration in the Partnership, even if same results in the terms excess of the transaction being less favorable amount an independent third party would charge and expect to the Partnership than would otherwise be the case)receive as reimbursable expenses or compensation for comparable goods or services;
(vi7) the establishment and maintenance of working capital and other reserves in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate from time to time;
(8) the distribution of Partnership cashcash or other Partnership assets in accordance with this Agreement, the holding, management, investment and reinvestment of cash and other assets of the Partnership and the collection and receipt of revenues, rents and income of the Partnership;
(vii9) the selection and dismissal of employees (including employees having titles such as “president,” “vice president,” “secretary” and “treasurer”) and agents, outside attorneys, accountants, consultants and contractors of the Partnership or the General Partner and the determination of their compensation and other terms of employment or hiring;
(viii10) the maintenance of such insurance for the benefit of the Partnership Group and the Partners as it deems necessary or appropriate, including casualty insurance on the Real Property to the same extent as maintained on the General Partner's properties held outside the Partnership;
(ix) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies or other relationships (including the acquisition of interests in, and the contributions of property to, any Group Member from time to time) subject to the restrictions set forth in Section 2.4;
(x11) the control of any matters affecting the rights and obligations of the Partnership, including the bringing settlement, compromise, submission to arbitration or any other form of dispute resolution, or abandonment, of any claim, cause of action, liability, debt or damages, due or owing to or from the Partnership, the commencement or defense of suits, legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, and defending the representation of actions at law the Partnership in all suits or in equity and otherwise engaging in the conduct legal proceedings, administrative proceedings, arbitrations or other forms of litigation and dispute resolution, the incurring of legal expense expense, and the settlement of claims and litigation;
(xi) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii12) the entering into enforcement of listing agreements with any National Securities Exchange rights against any Partner pursuant to representations, warranties, covenants and indemnities relating to such Partner's contribution of property or assets to the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.8)Partnership;
(xiii13) unless restricted the exercise, directly or prohibited indirectly, through any attorney-in-fact acting under a general or limited power of attorney, of any right, including the right to vote, appurtenant to any asset or investment held by Section 5.7the Partnership;
(14) the making, execution and delivery of any and all deeds, leases, notes, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate in the purchase, sale or other acquisition or disposition judgment of Partnership Securities, or the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement; and
(15) the issuance of additional options, rights, warrants and appreciation rights relating to Partnership Securities; and
(xiv) the undertaking of any action Units in connection with the Partnership’s participation in any Group Member as a member or partnerCapital Contributions by Additional Limited Partners and additional Capital Contributions by Partners pursuant to Article 4 hereof.
(b) Notwithstanding B. Each of the Limited Partners agrees that, notwithstanding any other provision of this Agreement, the Operating Company Agreement, the Delaware Act or any applicable law, rule or regulation, each of the Partners and the Assignees and each other Person who may acquire an interest except as provided in Partnership Securities hereby (i) approvesSection 7.3 hereof, ratifies and confirms the execution, delivery and performance by the parties thereto of the Operating Company Agreement, any other limited liability company or partnership agreement of any other Group Member, the Underwriting Agreement, the Omnibus Agreement, the Contribution Agreement and the other agreements described in or filed as exhibits to the Registration Statement that are related to the transactions contemplated by the Registration Statement; (ii) agrees that the General Partner (on its own or through any officer of the Partnership) is authorized to execute, deliver and perform the above-mentioned agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership without any further act, approval or vote of the Partners or the Assignees or the other Persons who may acquire an interest in Partnership Securities; and (iii) agrees that the execution, delivery or performance by the General Partner, any Group Member or any Affiliate of any of them, of this Agreement or any agreement authorized or permitted under this Agreement (including the exercise by the General Partner or any Affiliate of the General Partner of the rights accorded pursuant to Article XV), shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement (or any other agreements) or of any duty stated or implied by law or equityPartners.
Appears in 1 contract
Samples: Limited Partnership Agreement (Cornerstone Realty Income Trust Inc)
Management. (a) The General Partner shall conduct, direct and manage all activities of the Partnership. A. Except as otherwise expressly provided in this Agreement, all management powers over the business and affairs of the Partnership shall be are exclusively vested in the General Partner, and no Limited Partner or Assignee shall have any right to participate in or exercise control or management power over the business and affairs of the Partnership. The General Partner may not be removed by the Limited Partners with or without cause, except with the consent of the General Partner. In addition to the powers now or hereafter granted a general partner of a limited partnership under the Act and other applicable law or which are granted to the General Partner under any other provision of this Agreement, the General Partner, subject to the other provisions hereof including Section 7.3, shall have full power and authority to do all things and on such terms as it, in its sole discretion, may deem deemed necessary or appropriate desirable by it to conduct the business of the Partnership, to exercise all powers set forth in Section 2.5 3.2 and to effectuate the purposes set forth in Section 2.43.1, including the followingincluding, without limitation:
(i) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money to permit the Partnership to make distributions to its Partners in such amounts as will permit the General Partner (for so long as the General Partner has determined to qualify as a REIT) to avoid the payment of any Federal income tax (including, for this purpose, any excise tax pursuant to Section 4981 of the Code) and to make distributions to its stockholders sufficient to permit the General Partner to maintain REIT status), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtednessindebtedness (including the securing of same by mortgage, including indebtedness that is convertible into Partnership Securities, deed of trust or other lien or encumbrance on all or any of the Partnership's assets) and the incurring of any other obligationsobligations it deems necessary for the conduct of the activities of the Partnership;
(ii) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership;
(iii) subject to the provisions of Section 7.3.D, the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the Partnership or the merger or other combination of the Partnership with or into another Person (the matters described in this clause (iii) being subject, however, to any prior approval that may be required by Section 7.3)entity;
(iv) the mortgage, pledge, encumbrance or hypothecation of all or any assets of the Partnership, and the use of the assets of the Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms 41 of this AgreementAgreement and on any terms it sees fit, including including, without limitation, the financing of the conduct of or the operations of the Partnership Group; subject to Section 7.6(a)General Partner or the Partnership, the lending of funds to other Persons (including other Group Members)including, without limitation, the General Partner (if necessary to permit the financing or capitalization of a subsidiary of the General Partner or the Partnership) and any Subsidiaries of the Partnership) and the repayment or guarantee of obligations of the Partnership Group Partnership, any of its Subsidiaries and the making of capital contributions to any member of the Partnership Groupother Person in which it has an equity investment;
(v) the negotiation, execution execution, and performance of any contracts, leases, conveyances or other instruments (including instruments that limit the liability of General Partner considers useful or necessary to the Partnership under contractual arrangements to all or particular assets conduct of the Partnership, with 's operations or the other party to the contract to have no recourse against implementation of the General Partner or its assets other than its interest in the Partnership, even if same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case)Partner's powers under this Agreement;
(vi) the distribution of Partnership cashcash or other Partnership assets in accordance with this Agreement;
(vii) the selection and dismissal of employees of the Partnership (including including, without limitation, employees having titles such as “"president,” “" "vice president,” “" "secretary” " and “"treasurer”) "), and agents, outside attorneys, accountants, consultants and contractors and of the Partnership, the determination of their compensation and other terms of employment or hiring, including waivers of conflicts of interest and the payment of their expenses and compensation out of the Partnership's assets;
(viii) the maintenance of such insurance for the benefit of the Partnership Group and the Partners as it deems necessary or appropriate;
(ix) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies ventures or other relationships that it deems desirable (including including, without limitation, the acquisition of interests in, and the contributions of property to, to any Group Member Subsidiary and any other Person in which it has an equity investment from time to time) subject ); provided that, as long as the General Partner has determined to continue to qualify as a REIT, the restrictions set forth Partnership may not engage in Section 2.4any such formation, acquisition or contribution that would cause the General Partner to fail to qualify as a REIT;
(x) the control of any matters affecting the rights and obligations of the Partnership, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigation and the incurring of legal expense and the settlement of claims and litigation;
(xi) , and the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.8);
(xiii) unless restricted or prohibited by Section 5.7, the purchase, sale or other acquisition or disposition of Partnership Securities, or the issuance of additional options, rights, warrants and appreciation rights relating to Partnership Securities; and
(xivxi) the undertaking of any action in connection with the Partnership’s participation 's direct or indirect investment in any Group Member as a member Person (including, without limitation, 42 contributing or partner.loaning Partnership funds to, incurring indebtedness on behalf of, or guarantying the obligations of any such Persons);
(bxii) Notwithstanding any subject to the other provision of provisions in this Agreement, the Operating Company determination of the fair market value of any Partnership property distributed in kind using such reasonable method of valuation as it may adopt; provided that, such methods are otherwise consistent with requirements of this Agreement;
(xiii) the management, operation, leasing, landscaping, repair, alteration, demolition or improvement of any real property or improvements owned by the Delaware Act Partnership or any applicable law, rule or regulation, each Subsidiary of the Partners Partnership or any Person in which the Partnership has made a direct or indirect equity investment;
(xiv) holding, managing, investing and reinvesting cash and other assets of the Assignees Partnership;
(xv) the collection and each receipt of revenues and income of the Partnership;
(xvi) the exercise, directly or indirectly through any attorney-in-fact acting under a general or limited power of attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(xvii) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person who may acquire an interest in which the Partnership Securities hereby has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(ixviii) approves, ratifies and confirms the execution, delivery and performance by the parties thereto exercise of any of the Operating Company Agreement, any other limited liability company or partnership agreement powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest, pursuant to contractual or other Group Memberarrangements with such Person; and
(xix) the making, the Underwriting Agreementexecution and delivery of any and all deeds, the Omnibus Agreementleases, the Contribution Agreement and the notes, deeds to secure debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or other agreements described in writing necessary or filed as exhibits to appropriate in the Registration Statement that are related to judgment of the transactions contemplated by General Partner for the Registration Statement; (ii) accomplishment of any of the powers of the General Partner enumerated in this Agreement.
B. Each of the Limited Partners agrees that the General Partner (on its own or through any officer of the Partnership) is authorized to execute, deliver and perform the above-mentioned agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership without any further act, approval or vote of the Partners partners, notwithstanding any other provisions of this Agreement (except as provided in Section 7.3), the Act or the Assignees any applicable law, rule or the other Persons who may acquire an interest in Partnership Securities; and (iii) agrees that the regulation. The execution, delivery or performance by the General Partner, any Group Member Partner or any Affiliate the Partnership of any of them, of this Agreement or any agreement authorized or permitted under this Agreement (including the exercise by the General Partner or any Affiliate of the General Partner of the rights accorded pursuant to Article XV), shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or 43 the Limited Partners or any other Persons under this Agreement (or any other agreements) or of any duty stated or implied by law or equity.
C. At all times from and after the date hereof, the General Partner may cause the Partnership to obtain and maintain (i) casualty, liability and other insurance (including, without limitation, earthquake insurance) on the properties of the Partnership and (ii) liability insurance for the Indemnities hereunder.
D. At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain working capital and other reserves in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
E. In exercising its authority under this Agreement, the General Partner may, but other than as set forth in the following sentence and as expressly set forth in the agreements listed on Exhibit I hereto, shall be under no obligation to, take into account the tax consequences to any Partner (including the General Partner) of any action taken by the General Partner. The General Partner, on behalf of the Partnership, shall use commercially reasonable efforts to cooperate with the Limited Partners to minimize any taxes payable in connection with any sale, exchange or any other disposition of assets of the Partnership. The General Partner and the Partnership shall not have liability to a Limited Partner under any circumstances as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner pursuant to its authority under this Agreement.
F. Except as otherwise provided herein, to the extent the duties of the General Partner require expenditures of funds to be paid to third parties, the General Partner shall not have any obligations hereunder except to the extent that Partnership funds are reasonably available to it for the performance of such duties, and nothing herein contained shall be deemed to authorize or require the General Partner, in its capacity as such, to expend its individual funds for payment to third parties or to undertake any individual liability or obligation on behalf of the Partnership.
Appears in 1 contract
Management. (a) The General Partner shall conduct, direct and manage all activities of the Partnership. A. Except as otherwise expressly provided in this Agreement, all management powers over the business and affairs of the Partnership are and shall be exclusively vested in the General Partner, and no Limited Partner or Assignee shall have any right to participate in or exercise control or management power over the business and affairs of the Partnership. The General Partner may not be removed by the Limited Partners with or without cause. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or which are granted to the General Partner under any other provision of this Agreement, the General Partner, subject to Section 7.37.3 hereof, shall have full power and authority to do all things and on such terms as it, in its sole discretion, may deem deemed necessary or appropriate desirable by it to conduct the business of the Partnership, to exercise all powers set forth in Section 2.5 3.2 hereof and to effectuate the purposes set forth in Section 2.43.1 hereof, including the followingincluding, without limitation:
(i1) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money to permit the Partnership to make distributions to its Partners in such amounts as will permit the General Partner (so long as the General Partner qualifies as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Section 4981 of the Code) and to make distributions to the General Partner such that the General Partner can distribute to its shareholders amounts sufficient to permit the General Partner to maintain REIT status), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtednessindebtedness (including the securing of same by deed to secure debt, including indebtedness that is convertible into Partnership Securitiesmortgage, deed of trust or other lien or encumbrance on the Partnership's assets) and the incurring of any other obligationsobligations it deems necessary for the conduct of the activities of the Partnership;
(ii2) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership;
(iii3) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the Partnership (including the exercise or grant of any conversion, option, privilege, or subscription right or other right available in connection with any assets at any time held by the Partnership) or the merger or other combination of the Partnership with or into another Person entity (all of the matters described in this clause (iii) being subject, however, foregoing subject to any prior approval that may be only to the extent required by Section 7.37.3 hereof);
(iv4) the use of the assets of the Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms it sees fit, including including, without limitation, the financing of the conduct of the operations of the General Partner, the Partnership Group; subject to Section 7.6(a)or any of the Partnership's Subsidiaries, the lending of funds to other Persons (including other Group Members)including, without limitation, the Subsidiaries of the Partnership and/or the General Partner) and the repayment or guarantee of obligations of the Partnership Group and its Subsidiaries and any other Person in which it has an equity investment, and the making of capital contributions to any member of the Partnership Groupits Subsidiaries;
(v5) the management, operation, leasing, landscaping, repair, alteration, demolition or improvement of any real property or improvements owned by the Partnership or any Subsidiary of the Partnership;
(6) the negotiation, execution execution, and performance of any contracts, conveyances or other instruments (including instruments that limit the liability of General Partner considers useful or necessary to the Partnership under contractual arrangements to all or particular assets conduct of the Partnership, with 's operations or the other party to the contract to have no recourse against implementation of the General Partner or its assets Partner's powers under this Agreement, including contracting with contractors, developers, consultants, accountants, legal counsel, other than its interest in professional advisors and other agents and the payment of their expenses and compensation out of the Partnership, even if same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case)'s assets;
(vi7) the distribution of Partnership cashcash or other Partnership assets in accordance with this Agreement, including distributions of equity interests in Subsidiaries of the Partnership made on a pro rata basis to holders of Common Units, provided that, in connection with the receipt of any such distribution, the General Partner either shall (i) prior to receiving such distribution, enter into a purchase and sale agreement, pursuant to its powers under Article III of the Declaration of Trust, to dispose of such equity interests or other Partnership assets that it receives in such distribution in exchange for cash or (ii) distribute such equity interests or other Partnership assets to the holders of REIT Shares;
(vii8) holding, managing, investing and reinvesting cash and other assets of the Partnership;
(9) the collection and receipt of revenues and income of the Partnership;
(10) the establishment of one or more divisions of the Partnership, the selection and dismissal of employees of the Partnership, any division of the Partnership, or the General Partner (including including, without limitation, employees having titles such as “president,” “vice president,” “secretary” and “treasurer”) ” of the Partnership, any division of the Partnership, or the General Partner), and agents, outside attorneys, accountants, consultants and contractors of the General Partner or the Partnership or any division of the Partnership, and the determination of their compensation and other terms of employment or hiring;
(viii11) the maintenance of such insurance for the benefit of the Partnership Group and the Partners as it deems necessary or appropriate;
(ix12) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies ventures or other relationships that it deems desirable (including including, without limitation, the acquisition of interests in, and the contributions of property to, its Subsidiaries and any Group Member other Person in which it has an equity investment from time to time) subject to the restrictions set forth in Section 2.4);
(x13) the control of any matters affecting the rights and obligations of the Partnership, including the bringing settlement, compromise, submission to arbitration or any other form of dispute resolution, or abandonment of, any claim, cause of action, liability, debt or damages, due or owing to or from the Partnership, the commencement or defense of suits, legal proceedings, administrative proceedings, arbitration or other forms of dispute, resolution, and defending the representation of actions at law the Partnership in all suits or in equity and otherwise engaging in the conduct legal proceedings, administrative proceedings, arbitrations or other forms of litigation and dispute resolution, the incurring of legal expense expense, and the settlement of claims and litigation;
(xi) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.8);
(xiii) unless restricted or prohibited by Section 5.7, the purchase, sale or other acquisition or disposition of Partnership Securities, or the issuance of additional options, rights, warrants and appreciation rights relating to Partnership Securities; and
(xiv14) the undertaking of any action in connection with the Partnership’s participation 's direct or indirect investment in its Subsidiaries or any Group Member other Person (including, without limitation, the contribution or loan of funds by the Partnership to such Persons);
(15) the determination of the fair market value of any Partnership property distributed in kind using such reasonable method of valuation as it may adopt;
(16) the exercise, directly or indirectly, through any attorney-in-fact acting under a member general or partnerlimited power of attorney, any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(17) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(18) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest pursuant to contractual or other arrangements with such Person; and
(19) the making, execution and delivery of any and all deeds, leases, notes, deeds to secure debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate in the judgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement.
(b) Notwithstanding any other provision of this Agreement, the Operating Company Agreement, the Delaware Act or any applicable law, rule or regulation, each B. Each of the Limited Partners and the Assignees and each other Person who may acquire an interest in Partnership Securities hereby (i) approves, ratifies and confirms the execution, delivery and performance by the parties thereto of the Operating Company Agreement, any other limited liability company or partnership agreement of any other Group Member, the Underwriting Agreement, the Omnibus Agreement, the Contribution Agreement and the other agreements described in or filed as exhibits to the Registration Statement that are related to the transactions contemplated by the Registration Statement; (ii) agrees that the General Partner (on its own or through any officer of the Partnership) is authorized to execute, deliver and perform the above-mentioned agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership without any further act, approval or vote of the Partners Partners, notwithstanding any other provision of this Agreement (except as provided in Section 7.3), the Act or any applicable law, rule or regulation, to the Assignees fullest extent permitted under the Act or the other Persons who may acquire an interest in Partnership Securities; and (iii) agrees that the applicable law. The execution, delivery or performance by the General Partner, any Group Member Partner or any Affiliate the Partnership of any of them, of this Agreement or any agreement authorized or permitted under this Agreement (including the exercise by the General Partner or any Affiliate of the General Partner of the rights accorded pursuant to Article XV), shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement (or any other agreements) or of any duty stated or implied by law or equity.
C. At all times from and after the date hereof, the General Partner may cause the Partnership to obtain and maintain (i) casualty, liability and other insurance on the properties of the Partnership and (ii) liability insurance for the Indemnitees hereunder.
D. At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain at any and all times working capital accounts and other cash or similar balances in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
E. In exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner of any action taken by it; provided that, if the General Partner decides to refinance (directly or indirectly) any outstanding indebtedness of the Partnership, the General Partner shall use reasonable efforts to structure such refinancing in a manner that minimizes any adverse tax consequences therefrom to the Limited Partners, and provided further that, in deciding whether or not to dispose of any property that represents more than one percent of the Partnership's total assets, the General Partner shall consider in good faith the income tax consequences of such disposition for both the General Partners and the Limited Partners. The General Partner and the Partnership shall not have liability to a Limited Partner under any circumstances as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner pursuant to its authority under this Agreement.
Appears in 1 contract
Samples: Limited Partnership Agreement (Colonial Realty Limited Partnership)
Management. (a) The General Partner shall conduct, direct and manage all activities of the Partnership. A. Except as otherwise expressly provided in this Agreement, all management powers over the business and affairs of the Partnership shall be are exclusively vested in the General Partner, and no Limited Partner or Assignee shall have any right to participate in or exercise control or management power over the business and affairs of the Partnership. The General Partner may not be removed by the Limited Partners with or without cause, except with the consent of the General Partner. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or which are granted to the General Partner under any other provision of this Agreement, the General Partner, subject to the other provisions hereof including Section 7.3, shall have full power and authority to do all things and on such terms as it, in its sole discretion, may deem deemed necessary or appropriate desirable by it to conduct the business of the Partnership, to exercise all powers set forth in Section 2.5 3.2 hereof and to effectuate the purposes set forth in Section 2.43.1 hereof, including the followingincluding, without limitation:
(i1) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money to permit the Partnership to make distributions to its Partners in such amounts as will permit the General Partner (so long as the General Partner has determined to qualify as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Section 4981 of the Code) and to make distributions to its stockholders sufficient to permit the General Partner to maintain REIT status), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtednessindebtedness (including the securing of same by mortgage, including indebtedness that is convertible into Partnership Securities, deed of trust or other lien or encumbrance on the Partnership's assets) and the incurring of any other obligationsobligations it deems necessary for the conduct of the activities of the Partnership;
(ii2) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership;
(iii3) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the Partnership or the merger or other combination of the Partnership with or into another Person (the matters described in this clause (iii) being subject, however, to any prior approval that may be required by Section 7.3)entity;
(iv4) the mortgage, pledge, encumbrance or hypothecation of any assets of the Partnership, and the use of the assets of the Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms it sees fit, including including, without limitation, the financing of the conduct of or the operations of the Partnership Group; subject to Section 7.6(a)General Partner or the Partnership, the lending of funds to other Persons (including other Group Members)including, without limitation, the General Partner (if necessary to permit the financing or capitalization of a subsidiary of the General Partner or the Partnership) or any Subsidiaries of the Partnership) and the repayment or guarantee of obligations of the Partnership Group Partnership, any of its Subsidiaries and the making of capital contributions to any member of the Partnership Groupother Person in which it has an equity investment;
(v5) the negotiation, execution execution, and performance of any contracts, leases, conveyances or other instruments (including instruments that limit the liability of General Partner considers useful or necessary to the Partnership under contractual arrangements to all or particular assets conduct of the Partnership, with 's operations or the other party to the contract to have no recourse against implementation of the General Partner or its assets other than its interest in the Partnership, even if same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case)Partner's powers under this Agreement;
(vi6) the distribution of Partnership cashcash or other Partnership assets in accordance with this Agreement;
(vii7) the selection and dismissal of employees of the Partnership (including including, without limitation, employees having titles such as “"president,” “" "vice president,” “" "secretary” " and “"treasurer”) "), and agents, outside attorneys, accountants, consultants and contractors and of the Partnership, the determination of their compensation and other terms of employment or hiring, including waivers of conflicts of interest and the payment of their expenses and compensation out of the Partnership's assets;
(viii) 8) the maintenance of such insurance for the benefit of the Partnership Group and the Partners as it deems necessary or appropriate;
(ix9) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies ventures or other relationships that it deems desirable (including including, without limitation, the acquisition of interests in, and the contributions of property to, to any Group Member Subsidiary and any other Person in which it has an equity investment from time to time) subject ); PROVIDED THAT, as long as the General Partner has determined to continue to qualify as a REIT, the restrictions set forth Partnership may not engage in Section 2.4any such formation, acquisition or contribution that would cause the General Partner to fail to qualify as a REIT;
(x10) the control of any matters affecting the rights and obligations of the Partnership, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigation and the incurring of legal expense and the settlement of claims and litigation;
(xi) , and the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.8);
(xiii) unless restricted or prohibited by Section 5.7, the purchase, sale or other acquisition or disposition of Partnership Securities, or the issuance of additional options, rights, warrants and appreciation rights relating to Partnership Securities; and
(xiv11) the undertaking of any action in connection with the Partnership’s participation 's direct or indirect investment in any Group Member as a member Person (including, without limitation, contributing or partner.loaning Partnership funds to, incurring indebtedness on behalf of, or guarantying the obligations of any such Persons);
(b12) Notwithstanding any subject to the other provision of provisions in this Agreement, the Operating Company determination of the fair market value of any Partnership property distributed in kind using such reasonable method of valuation as it may adopt, PROVIDED THAT such methods are otherwise consistent with requirements of this Agreement;
(13) the management, operation, leasing, landscaping, repair, alteration, demolition or improvement of any real property or improvements owned by the Delaware Act Partnership or any applicable law, rule or regulation, each Subsidiary of the Partners Partnership or any Person in which the Partnership has made a direct or indirect equity investment;
(14) holding, managing, investing and reinvesting cash and other assets of the Assignees Partnership;
(15) the collection and each receipt of revenues and income of the Partnership;
(16) the exercise, directly or indirectly through any attorney-in-fact acting under a general or limited power of attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(17) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person who may acquire in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(18) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest pursuant to contractual or other arrangements with such Person; and
(19) the making, execution and delivery of any and all deeds, leases, notes, deeds to secure debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in Partnership Securities hereby (i) approves, ratifies and confirms writing necessary or appropriate in the execution, delivery and performance by the parties thereto judgment of the Operating Company Agreement, any other limited liability company or partnership agreement General Partner for the accomplishment of any other Group Member, of the Underwriting powers of the General Partner enumerated in this Agreement, .
B. Each of the Omnibus Agreement, the Contribution Agreement and the other agreements described in or filed as exhibits to the Registration Statement that are related to the transactions contemplated by the Registration Statement; (ii) Limited Partners agrees that the General Partner (on its own or through any officer of the Partnership) is authorized to execute, deliver and perform the above-mentioned agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership without any further act, approval or vote of the Partners partners, notwithstanding any other provisions of this Agreement (except as provided in Section 7.3), the Act or the Assignees any applicable law, rule or the other Persons who may acquire an interest in Partnership Securities; and (iii) agrees that the regulation. The execution, delivery or performance by the General Partner, any Group Member Partner or any Affiliate the Partnership of any of them, of this Agreement or any agreement authorized or permitted under this Agreement (including the exercise by the General Partner or any Affiliate of the General Partner of the rights accorded pursuant to Article XV), shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement (or any other agreements) or of any duty stated or implied by law or equity.
C. At all times from and after the date hereof, the General Partner may cause the Partnership to obtain and maintain (i) casualty, liability and other insurance on the properties of the Partnership and (ii) liability insurance for the Indemnities hereunder.
D. At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain working capital reserves in such amounts as the General Partner, in it sole and absolute discretion, deems appropriate and reasonable from time to time.
E. In exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner (including the General Partner) of any action taken by it. The General Partner and the Partnership shall not have liability to a Partner under any circumstances as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner pursuant to its authority under this Agreement.
Appears in 1 contract
Samples: Limited Partnership Agreement (Arden Realty Group Inc)
Management. (a) The General Partner shall conduct, direct and manage all activities of the Partnership. A. Except as otherwise expressly provided in this Agreement, all management powers over the business and affairs of the Partnership shall be are exclusively vested in the General Partner, and no Limited Partner or Assignee shall have any right to participate in or exercise control or management power over the business and affairs of the Partnership. The General Partner may not be removed by the Limited Partners with or without cause. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law the Act or which are granted to the General Partner under any other provision of this Agreement, the General Partner, subject to Section 7.3the other provisions hereof, shall have full power and authority to do all things and on such terms as it, in its sole discretion, may deem deemed necessary or appropriate desirable by it to conduct the business of the Partnership, to exercise all powers set forth in Section 2.5 3.2 hereof and to effectuate the purposes set forth in Section 2.43.1 hereof, including the followingincluding, without limitation:
(i1) the making of any expenditures, the lending or of money, borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money to permit the Partnership to make distributions to its Partners in such amounts as will permit the General Partner (so long as the General Partner has determined to qualify as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Section 4981 of the Code), to make distributions to its stockholders sufficient to permit the General Partner to maintain REIT status), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtednessindebtedness (including the securing of same by mortgage, including indebtedness that is convertible into Partnership Securities, deed of trust or other lien or encumbrance on the Partnership's assets) and the incurring of any other obligationsobligations it deems necessary for the conduct of the activities of the Partnership; provided, that all such borrowing, incurrence of -------- Debt and prepayments shall be subject to the limitations set forth in Sections 4.2 and 4.3;
(ii2) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership;
(iii3) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the Partnership or the merger or other combination of the Partnership with or into another Person (entity; provided that as long as the matters described General Partner has -------- determined to continue to qualify as a REIT, the General Partner may not engage in this clause (iii) being subjectany such acquisition, howeverdisposition, mortgage, pledge, encumbrance, hypothecation or exchange that would cause it to any prior approval that may be required by Section 7.3);fail to qualify as a REIT
(iv4) the mortgage, pledge, encumbrance or hypothecation of any assets of the Partnership, and the use of the assets of the Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms it sees fit, including including, without limitation, the financing of the conduct of the operations of the General Partner, the Partnership Group; subject to Section 7.6(a), the lending of funds to other Persons (including other Group Members), and the repayment or guarantee of obligations of the Partnership Group and the making of capital contributions to any member of the Partnership Groupother Person in which it has an equity investment;
(v5) the negotiation, execution and performance of any contracts, leases, deeds, conveyances or other instruments (including instruments that limit the liability of General Partner considers useful or necessary to the Partnership under contractual arrangements to all or particular assets conduct of the Partnership, with 's operations or the other party to the contract to have no recourse against implementation of the General Partner or its assets other than its interest in the Partnership, even if same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case)Partner's powers under this Agreement;
(vi6) the distribution of Partnership cashcash or other Partnership assets in accordance with this Agreement;
(vii7) the selection and dismissal of any employees of the Partnership (including including, without limitation, employees having titles such as “"president,” “" "vice president,” “" "secretary” " and “"treasurer”) "), and agents, outside attorneys, accountants, consultants and contractors of the Partnership and the determination of their compensation and other terms of employment or hiring;
(viii8) the selection and employment of third parties to perform services for and on behalf of the Partnership, including, but not limited to management, leasing and development services, and the General Partner may require that such third party service providers xxxx the Partnership directly for payment or reimbursement for such services;
(9) the maintenance of such insurance for the benefit of the Partnership Group and the Partners as it deems necessary or appropriate;
(ix10) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies ventures or other relationships that it deems desirable (including including, without limitation, the acquisition of interests in, and the contributions of property to, any Group Member Person in which it has an equity investment from time to time) subject ); provided -------- that as long as the General Partner has determined to continue to qualify as a REIT, the restrictions set forth General Partner may not engage in Section 2.4any such formation, acquisition or contribution that would cause it to fail to qualify as a REIT;
(x11) the control of any matters affecting the rights and obligations of the Partnership, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigation and the incurring of legal expense and the settlement of claims and litigation;
(xi) , and the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.8);
(xiii) unless restricted or prohibited by Section 5.7, the purchase, sale or other acquisition or disposition of Partnership Securities, or the issuance of additional options, rights, warrants and appreciation rights relating to Partnership Securities; and
(xiv12) the undertaking of any action in connection with the Partnership’s participation 's direct or indirect investment in any Group Member as a member Person (including, without limitation, the contribution or partner.loan of funds by the Partnership to such Persons);
(b13) Notwithstanding the determination of the fair market value of any other provision Partnership property distributed in kind using such reasonable method of valuation as it may adopt, provided that such methods are otherwise consistent with industry standards and the requirements of this Agreement; and
(14) the enforcement of any rights against any Partner pursuant to representations, warranties, covenants and indemnities relating to such Partner's contribution of property or assets to the Operating Company Agreement, the Delaware Act or any applicable law, rule or regulation, each Partnership.
B. Each of the Limited Partners and the Assignees and each other Person who may acquire an interest in Partnership Securities hereby (i) approves, ratifies and confirms the execution, delivery and performance by the parties thereto of the Operating Company Agreement, any other limited liability company or partnership agreement of any other Group Member, the Underwriting Agreement, the Omnibus Agreement, the Contribution Agreement and the other agreements described in or filed as exhibits to the Registration Statement that are related to the transactions contemplated by the Registration Statement; (ii) agrees that the General Partner (on its own or through any officer of the Partnership) is authorized to execute, deliver and perform the above-mentioned agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership without any further act, approval or vote of the Partners Partners, notwithstanding any other provisions of this Agreement (except as provided in Section 7.3), the Act or the Assignees any applicable law, rule or the other Persons who may acquire an interest in Partnership Securities; and (iii) agrees that the regulation. The execution, delivery or performance by the General Partner, any Group Member Partner or any Affiliate the Partnership of any of them, of this Agreement or any agreement authorized or permitted under this Agreement (including the exercise by the General Partner or any Affiliate of the General Partner of the rights accorded pursuant to Article XV), shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement (or any other agreements) or of any duty stated or implied by law or equity.
C. At all times from and after the date hereof, the General Partner may cause the Partnership to obtain and maintain (i) casualty, liability and other insurance on the properties of the Partnership and (ii) liability insurance for the Indemnities hereunder.
D. At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain working capital reserves in such amounts as the General Partner, in it sole and absolute discretion, deems appropriate and reasonable from time to time.
E. In exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner (including the General Partner) of any action taken by it. The General Partner and the Partnership shall not have liability to a Partner under any circumstances as a result of an income tax liability incurred by such Partner as a result of an action (or inaction) by the General Partner pursuant to its authority under this Agreement.
Appears in 1 contract
Samples: Agreement of Limited Partnership (Center Trust Inc)
Management. (a) The General Partner shall conduct, direct and manage all activities of the Partnership. A. Except as otherwise expressly provided in this Agreement, including but not limited to Section 13.9, all management powers over the business and affairs of the Partnership are and shall be exclusively vested in the General Partner, and no Limited Partner or Assignee nor any Preferred Limited Partner shall have any right to participate in or exercise control or management power over the business and affairs of the Partnership. The General Partner may not be removed by the Limited Partners or the Preferred Limited Partners with or without cause. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or which are granted to the General Partner under any other provision of this Agreement, the General Partner, subject to Section 7.3, Partner shall have full power and authority to do all things and on such terms as it, in its sole discretion, may deem deemed necessary or appropriate desirable by it to conduct the business of the Partnership, to exercise all powers set forth in Section 2.5 3.2 hereof and to effectuate the purposes set forth in Section 2.43.1 hereof, including the followingincluding, without limitation:
(ia) the making of any expenditures, the lending or borrowing of money, including, without limitation, making prepayments on loans and borrowing money to permit the Partnership to make distributions to its Partners in such amounts as will permit the Company (so long as the Company qualifies as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Section 4981 of the Code) and to make distributions to its shareholders in amounts sufficient to permit the Company to maintain REIT status, (b) the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, (c) the issuance of evidences evidence of indebtednessindebtedness (including the securing of the same by deed, including indebtedness that is convertible into Partnership Securitiesmortgage, deed of trust or other lien or encumbrance on the Partnership’s assets) and (d) the incurring of any other obligationsobligations it deems necessary for the conduct of the activities of the Partnership;
(ii2) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership;
(iii3) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the Partnership (including, the exercise or grant of any conversion, option, privilege, or subscription right or other right available in connection with any assets at any time held by the Partnership) or the merger or other combination of the Partnership with or into another Person (the matters described in this clause (iii) being subject, however, to any prior approval that may be required by Section 7.3)entity;
(iv4) the use of the assets of the Partnership (including including, without limitation, cash on hand) hand for any purpose consistent with the terms of this AgreementAgreement and on any terms it sees fit, including without limitation, the financing of the conduct of the operations of the Company, the Partnership Group; subject to Section 7.6(a)or any of the Partnership’s Subsidiaries, the lending of funds to other Persons (including other Group Members)without limitation, the Subsidiaries of the Partnership and/or the Company) and the repayment or guarantee of obligations of the Partnership Group and its Subsidiaries and any other Person in which it has an equity investment, and the making of capital contributions to any member of the Partnership Groupits Subsidiaries;
(v5) the management, operation, expansion, development, construction, leasing, landscaping, repair, alteration, demolition or improvement of any real property or improvements owned by the Partnership or any Subsidiary of the Partnership;
(6) the negotiation, execution execution, and performance of any contracts, conveyances or other instruments (including instruments that limit the liability of General Partner considers useful or necessary to the Partnership under contractual arrangements to all or particular assets conduct of the Partnership, with ’s operations or the other party to the contract to have no recourse against implementation of the General Partner or its assets Partner’s powers under this Agreement, including contracting with contractors, developers, consultants, accountants, legal counsel, other than its interest in professional advisors and other agents and the payment of their expenses and compensation out of the Partnership, even if same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case)’s assets;
(vi7) the distribution of Partnership cashcash or other Partnership assets in accordance with this Agreement;
(vii8) holding, managing, investing, and reinvesting cash and other assets of the Partnership;
(9) the collection and receipt of revenues and income of the Partnership;
(10) the establishment of one or more divisions of the Partnership, the selection and dismissal of employees (including of the Partnership including, without limitation, employees having titles such as “president,” “vice president,” “secretary” and “treasurer”) ” of the Partnership, and agents, outside attorneys, accountants, consultants and contractors of the Partnership, and the determination of their compensation and other terms of employment or hiringengagement;
(viii11) the maintenance of such insurance for the benefit of the Partnership Group and the Partners as it deems necessary or appropriate;
(ix12) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies ventures or other relationships that it deems desirable (including including, without limitation, the acquisition of interests in, and the contributions of property to, its Subsidiaries and any Group Member other Person in which it has an equity investment from time to time) subject to the restrictions set forth in Section 2.4);
(x13) the control of any matters affecting the rights and obligations of the Partnership, including the bringing settlement, compromise, submission to arbitration or any other form of dispute resolution, or abandonment of, any claim, cause of action, liability, debt or damages, due or owing to or from the Partnership, the commencement or defense of suits, legal proceedings, administrative proceedings, arbitration or other forms of dispute resolution, and defending the representation of actions at law the Partnership in all suits or in equity and otherwise engaging in the conduct legal proceedings, administrative proceedings, arbitrations or other forms of litigation and dispute resolution, the incurring of legal expense expenses, and the settlement of claims and litigation;
(xi) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.8);
(xiii) unless restricted or prohibited by Section 5.7, the purchase, sale or other acquisition or disposition of Partnership Securities, or the issuance of additional options, rights, warrants and appreciation rights relating to Partnership Securities; and
(xiv14) the undertaking of any action in connection with the Partnership’s participation direct or indirect investment in its Subsidiaries or any Group Member as a member other Person (including, without limitation, the contribution or partner.loan of funds by the Partnership to such Persons);
(b15) Notwithstanding the determination of the fair market value of any Partnership property distributed in kind using such reasonable method of valuation as the General Partner may adopt;
(16) the exercise, directly or indirectly, through any attorney-in-fact acting under a general or limited power of attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(17) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other provision Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(18) the exercise of this Agreement, the Operating Company Agreement, the Delaware Act or any applicable law, rule or regulation, each of the Partners and powers of the Assignees and each other General Partner enumerated in this Agreement on behalf of any Person who may acquire in which the Partnership does not have an interest pursuant to contractual or other arrangements with such Person;
(19) the making, execution and delivery of any and all deeds, leases, notes, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in Partnership Securities hereby (i) approveswriting necessary or appropriate, ratifies and confirms in the execution, delivery and performance by the parties thereto judgment of the Operating Company AgreementGeneral Partner, any other limited liability company or partnership agreement for the accomplishment of any other Group Memberof the foregoing; and
(20) the issuance of additional OP Units, the Underwriting Agreementas appropriate, the Omnibus Agreement, the Contribution Agreement and the other agreements described in or filed as exhibits to the Registration Statement that are related to the transactions contemplated by the Registration StatementMaster Agreement and/or in connection with Capital Contributions by Additional Limited Partners and additional Capital Contributions by Partners pursuant to Article 4 hereof; and
(ii21) The opening of bank accounts on behalf of, and in the name of, the Partnership and its Subsidiaries.
B. Each of the Limited Partners agrees that the General Partner (on its own or through any officer of the Partnership) is authorized to execute, deliver and perform the above-mentioned agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership without any further act, approval or vote of the Partners Partners, notwithstanding any other provision of this Agreement to the fullest extent permitted under the Act or the Assignees other applicable law, rule or the other Persons who may acquire an interest in Partnership Securities; and (iii) agrees that the regulation. The execution, delivery or performance by the General Partner, any Group Member Partner or any Affiliate the Partnership of any of them, of this Agreement or any agreement authorized or permitted under this Agreement (including the exercise by the General Partner or any Affiliate of the General Partner of the rights accorded pursuant to Article XV), shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement (or any other agreements) or of any duty stated or implied by law or equity.
C. At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain at any and all times working capital accounts and other cash or similar balances in such amount as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
D. In exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner of any action taken by it; provided, that if the General Partner decides to refinance (directly or indirectly) any outstanding indebtedness of the Partnership, the General Partner shall use reasonable efforts to structure such refinancing in a manner that minimizes any adverse tax consequences resulting therefrom to the Limited Partners. The General Partner and the Partnership shall not have liability to a Limited Partner under any circumstances as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner taken pursuant to its authority under and in accordance with this Agreement.
Appears in 1 contract
Samples: Limited Partnership Agreement (Ramco Gershenson Properties Trust)
Management. (a) The General Partner shall conduct, direct and manage all activities of the Partnership. Except as otherwise expressly provided in this Agreement, all management powers over the business and affairs of the Partnership are and shall be exclusively vested in the General Partner, and no Limited Partner or Assignee shall have any right to participate in or exercise control or management power over the business and affairs of the Partnership. The General Partner may be removed by the Limited Partners with or without cause with the approval of the Limited Partners holding a majority of the Percentage Interests. In addition to the powers now or hereafter granted to a general partner of a limited partnership under applicable law or which are granted to the General Partner under any other provision of this Agreement, the General Partner, subject to Section 7.3the terms of this Agreement, shall have full power and authority to do all things and on such terms as itdeemed necessary, in its sole discretion, may deem necessary desirable or appropriate convenient by it to conduct the business of the Partnership, to exercise all powers set forth in Section 2.5 3.2 and to effectuate the purposes set forth in Section 2.43.1. Notwithstanding the foregoing, including except as expressly contemplated by the followingManagement Agreement or is delegated to the Investment Committee pursuant to Section 7.12, the General Partner shall not do any of the following without the prior approval of the Board of Directors:
(i1) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money to permit the Partnership to make distributions to its Partners in such amounts as will permit the Company (so long as the Company desires to maintain its qualification as a REIT) to avoid the payment of any U.S. federal income tax (including, for this purpose, any excise tax pursuant to Section 4981 of the Code) and to make distributions to its shareholders in amounts sufficient to permit the Company to maintain its REIT status), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences evidence of indebtednessindebtedness (including the securing of the same by deed, including indebtedness that is convertible into Partnership Securitiesmortgage, and deed of trust or other lien or encumbrance on the incurring Partnership’s assets or any assets of any other obligationsits Subsidiaries);
(ii2) the making of tax, regulatory and other filingsfilings or elections, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership;
(iii3) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the Partnership (including the exercise or grant of any conversion, option, privilege, or subscription right or other right available in connection with any assets at any time held by the Partnership) or the merger or other combination of the Partnership with or into another Person entity (all of the matters described in this clause (iii) being subject, however, foregoing subject to any prior approval that may be only to the extent required by Section 7.3);
(iv4) the mortgage, pledge, encumbrance or hypothecation of any assets of the Partnership, the use of the assets of the Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms that it sees fit, including including, without limitation, the financing of the conduct of the operations of the Partnership Group; subject to Section 7.6(a)Partnership, the Company or any of the Partnership’s or the Company’s Subsidiaries, the lending of funds to other Persons (including other Group Members)including, without limitation, the Subsidiaries of the Partnership and/or the Company) and the repayment or guarantee of obligations of the Partnership Group and its Subsidiaries and any other Person in which it has an equity investment, and the making of capital contributions to any member of the Partnership Groupits Subsidiaries;
(v5) the negotiation, execution execution, delivery and performance of any contractscontracts (including leases), conveyances or other instruments (including instruments that limit the liability of General Partner considers useful or necessary or convenient to the Partnership under contractual arrangements to all or particular assets conduct of the Partnership, with ’s operations or the other party to the contract to have no recourse against implementation of the General Partner or its assets Partner’s powers under this Agreement, including, without limitation, contracting with consultants, accountants, legal counsel, other than its interest in professional advisors and other agents and the payment of their expenses and compensation out of the Partnership, even if same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case)’s assets;
(vi6) the distribution of Partnership cashcash or other Partnership assets in accordance with this Agreement;
(vii7) holding, managing, investing and reinvesting cash and other assets of the Partnership;
(8) the amending, restating and/or supplementing this Agreement, any side letter contemplated by Section 15.11, or the Certificate;
(9) the establishment of one or more divisions of the Partnership, the selection and dismissal of employees of the Partnership (including including, without limitation, employees having who may be designated as officers with titles such as “president,” “vice president,” “secretary” and “treasurer”) ” of the Partnership), and agents, outside attorneys, accountants, consultants and contractors of the Partnership, and the determination of their compensation and other terms of employment or hiring;
(viii) the maintenance of such insurance for the benefit of the Partnership Group and the Partners as it deems necessary or appropriate;
(ix10) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventureslimited liability companies, real estate investment trusts, corporations, limited liability companies entities that are treated as REITs, “taxable REIT subsidiaries” or as foreign corporations for federal income tax purposes, Joint Ventures or other relationships that it deems desirable (including including, without limitation, the acquisition of interests in, and the contributions of property or the making of loans to, its or the Company’s Subsidiaries and any Group Member other Person in which it has an equity investment from time to time) subject time or the incurrence of indebtedness on behalf of such Persons or the guarantee of obligations of such Persons and the making of any tax, regulatory or other filing or election with respect to any of the restrictions set forth foregoing Persons); provided, that as long as the Company has determined to continue to qualify as a REIT, the Partnership may not engage in Section 2.4any such formation, acquisition or contribution that would cause the Company to fail to qualify as a REIT;
(x11) the control of any matters affecting the rights and obligations of the Partnership, including the bringing and defending settlement, compromise, submission to arbitration or any other form of actions at law dispute resolution, or in equity and otherwise engaging in abandonment of, any claim, cause of action, liability, Debt or damages, due or owing to or from the conduct Partnership, the commencement or defense of litigation suits, legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, and the incurring representation of the Partnership in all suits or legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, the incurrence of legal expense expense, and the settlement of claims and litigation;
(xi) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.8);
(xiii) unless restricted or prohibited by Section 5.7, the purchase, sale or other acquisition or disposition of Partnership Securities, or the issuance of additional options, rights, warrants and appreciation rights relating to Partnership Securities; and
(xiv12) the undertaking of any action in connection with the Partnership’s participation direct or indirect investment in any Group Member Subsidiary or any other Person (including, without limitation, the contribution or loan of funds by the Partnership to such Persons);
(13) the determination of the fair market value of any Partnership Property distributed in kind using such reasonable method of valuation as the General Partner may adopt;
(14) the enforcement of any rights against any Partner pursuant to representations, warranties, covenants and indemnities relating to such Partner’s contribution of property or assets to the Partnership;
(15) the exercise, directly or indirectly, through any attorney-in-fact acting under a member general or partnerlimited power of attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(16) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(17) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest pursuant to contractual or other arrangements with such Person;
(18) the making, execution, delivery and performance of any and all deeds, leases, notes, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary, appropriate or convenient, in the judgment of the General Partner, for the accomplishment of any of the powers of the General Partner enumerated in this Agreement;
(19) the issuance of additional Partnership Units and other partnership interests to any Partners or other Persons.
(b) Notwithstanding Subject to the any other provision rights of the Partners and any direction or approval of the Board of Directors set forth in this Agreement, the Operating Company Agreementincluding, the Delaware Act or any applicable lawbut not limited to, rule or regulationSection 7.1(a), each of the Limited Partners and the Assignees and each other Person who may acquire an interest in Partnership Securities hereby (i) approves, ratifies and confirms the execution, delivery and performance by the parties thereto of the Operating Company Agreement, any other limited liability company or partnership agreement of any other Group Member, the Underwriting Agreement, the Omnibus Agreement, the Contribution Agreement and the other agreements described in or filed as exhibits to the Registration Statement that are related to the transactions contemplated by the Registration Statement; (ii) agrees that the General Partner (on its own or through any officer of the Partnership) is authorized to execute, deliver and perform the above-mentioned agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership Partnership, and otherwise to exercise any power of the General Partner under this Agreement or the Act, without any further act, approval or vote of the Partners or any other Person, notwithstanding any other provision of this Agreement (except as provided in Section 7.3), the Assignees Act or any applicable law, rule or regulation, to the fullest extent permitted under the Act or other Persons who may acquire an interest in Partnership Securities; and (iii) agrees that the applicable law, rule or regulation. The execution, delivery or performance by the General Partner, any Group Member Partner or any Affiliate the Partnership of any of them, of this Agreement or any agreement authorized or permitted under this Agreement (including the exercise by the General Partner or any Affiliate of the General Partner of the rights accorded pursuant to Article XV), shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement (or any other agreements) or of any duty stated or implied by law or equity.
(c) At all times from and after the date hereof, the General Partner, at the direction of the Board of Directors, may cause the Partnership to establish and maintain working capital accounts and other cash or similar balances in such amounts as the General Partner, after consultation with the Board of Directors, deems appropriate and reasonable from time to time.
(d) At all times from and after the date hereof, the General Partner may cause, and if directed by the Board of Directors, shall cause, the Partnership to obtain and maintain (i) casualty, liability and other insurance on the Properties and (ii) liability insurance for the Indemnitees hereunder.
(e) In exercising its authority under this Agreement, the General Partner (solely to the extent directed by the Board of Directors, and in all cases in accordance with such directions from the Board of Directors) may take into account the tax consequences to any Partner of any action taken (or not taken) by it. The General Partner, the Board of Directors, and the Partnership shall not be liable to a Limited Partner under any circumstances as a result of an income tax or other tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner taken pursuant to its authority under this Agreement or at the direction of the Board of Directors.
Appears in 1 contract
Samples: Limited Partnership Agreement (Vinebrook Homes Trust, Inc.)
Management. (a) The General Partner shall conduct, direct and manage all activities of the Partnership. 7.1.1 Except as otherwise expressly provided in this Agreement, all management powers over the business and affairs of the Partnership are and shall be exclusively vested in the General Partner, and no Limited Partner or Assignee shall have any right to participate in or exercise control or management power over the business and affairs of the Partnership. The General Partner may not be removed by the Partners with or without cause, except with the consent of the General Partner. In addition to the powers now or hereafter granted to a general partner of a limited partnership under applicable law or which that are granted to the General Partner under any other provision of this Agreement, the General Partner, subject to Section 7.3the other provisions hereof, shall have full power and authority to do all things and on such terms as it, in its sole discretion, may deem deemed necessary or appropriate desirable by it to conduct the business of the Partnership, to exercise all powers set forth in Section 2.5 3.2 hereof and to effectuate the purposes set forth in Section 2.43.1 hereof, including the followingincluding, without limitation:
(ia) the making of any expenditures, the lending or borrowing of moneymoney (including making prepayments on loans and borrowing money or selling assets to permit the Partnership to make distributions to its Partners in such amounts as will permit the General Partner (so long as the General Partner desires to maintain or restore its status as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Code Section 4981) and to make distributions sufficient to permit the General Partner to maintain or restore REIT status or otherwise to satisfy the REIT Requirements), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtednessindebtedness (including the securing of same by deed to secure debt, including indebtedness that is convertible into Partnership Securitiesmortgage, deed of trust or other lien or encumbrance on the Partnership’s assets) and the incurring of any other obligationsobligations that it deems necessary for the conduct of the activities of the Partnership;
(iib) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership;
(iiic) the acquisition, dispositionsale, mortgagelease, pledgetransfer, encumbranceexchange or other disposition of any, hypothecation all or exchange of any or substantially all of the assets of the Partnership (including, but not limited to, the exercise or grant of any conversion, option, privilege or subscription right or any other right available in connection with any assets at any time held by the merger Partnership) or, subject to Section 8.6, the merger, consolidation, reorganization or other combination of the Partnership with or into another Person (the matters described in this clause (iii) being subject, however, to any prior approval that may be required by Section 7.3)entity;
(ivd) the mortgage, pledge, encumbrance or hypothecation of any assets of the Partnership, the use of the assets of the Partnership (including cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms that it sees fit, including the financing of the conduct operations and activities of the operations General Partner, the Partnership or any of the Partnership Group; subject to Section 7.6(a)Partnership’s Subsidiaries, the lending of funds to other Persons (including other Group Members), the Partnership’s Subsidiaries) and the repayment or guarantee of obligations of the Partnership, its Subsidiaries and any other Person in which the Partnership Group has an equity investment, and the making of capital contributions to and equity investments in the Partnership’s Subsidiaries;
(e) the management, operation, leasing, landscaping, repair, alteration, demolition, replacement or improvement of any member Property, including any Contributed Property, or other asset of the Partnership Groupor any Subsidiary, whether pursuant to a Services Agreement or otherwise;
(vf) the negotiation, execution and performance of any contracts, leases, conveyances or other instruments (including instruments that limit the liability General Partner considers useful or necessary to the conduct of the Partnership’s operations or the implementation of the General Partner’s powers under this Agreement, including contracting with contractors, developers, consultants, accountants, legal counsel, the Advisor’s other professional advisors and other agents and the payment of their expenses and compensation out of the Partnership’s assets; provided, however, that the Advisory Agreement must contain a provision (the “Voting Direction Provision”) that requires the Advisor to vote its shares of Proportionate Voting Preferred Stock in proportion to the votes (the “LP Direction Votes”) that the Advisor receives from the holders of Partnership under contractual arrangements Units (other than the General Partner), that are issued pursuant to all the Master Agreement or particular pursuant to any option delivered pursuant thereto or in connection with the consummation of the transactions contemplated thereby. The Advisor shall not cast any votes with respect to the share of Proportionate Voting Preferred Stock unless it receives LP Direction Votes with respect thereto.
(g) the distribution of Partnership cash or other Partnership assets in accordance with this Agreement, the holding, management, investment and reinvestment of cash and other assets of the Partnership, with and the other party to the contract to have no recourse against the General Partner or its assets other than its interest in collection and receipt of revenues, rents and income of the Partnership, even if same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case);
(vi) the distribution of Partnership cash;
(vii) the selection and dismissal of employees (including employees having titles such as “president,” “vice president,” “secretary” and “treasurer”) and agents, outside attorneys, accountants, consultants and contractors and the determination of their compensation and other terms of employment or hiring;
(viiih) the maintenance of such insurance for the benefit of the Partnership Group and the Partners as it deems necessary or appropriate, including (i) casualty, liability and other insurance on the Properties and (ii) liability insurance for the Indemnitees hereunder;
(ixi) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies companies, joint ventures or other relationships that it deems desirable (including the acquisition of interests in, and the contributions of property to, any Group Member Subsidiary and any other Person in which it has an equity investment from time to time) subject to the restrictions set forth in Section 2.4);
(xj) the control of any matters affecting the rights and obligations of the Partnership, including the bringing settlement, compromise, submission to arbitration or any other form of dispute resolution, or abandonment, of any claim, cause of action, liability, debt or damages, due or owing to or from the Partnership, the commencement or defense of suits, legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, and defending the representation of actions at law the Partnership in all suits or in equity and otherwise engaging in the conduct legal proceedings, administrative proceedings, arbitrations or other forms of litigation and dispute resolution, the incurring of legal expense expense, and the settlement of claims and litigation;
(xi) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.8);
(xiii) unless restricted or prohibited by Section 5.7, the purchase, sale or other acquisition or disposition of Partnership Securities, or the issuance of additional options, rights, warrants and appreciation rights relating to Partnership Securities; and
(xivk) the undertaking of any action in connection with the Partnership’s participation direct or indirect investment in any Group Member as a member Subsidiary or partner.any other Person (including the contribution of Property or contribution or loan of funds by the Partnership to such Persons);
(bl) Notwithstanding any other provision of except as otherwise specifically set forth in this Agreement, the Operating Company Agreement, the Delaware Act or any applicable law, rule or regulation, each determination of the Partners fair market value of any Partnership property distributed in kind using such method of valuation as it may reasonably adopt as long as such method is otherwise consistent with the requirements of this Agreement;
(m) the enforcement of any rights against any Partner pursuant to representations, warranties, covenants and indemnities relating to such Partner’s contribution of property or assets to the Assignees and each other Person who may acquire an interest in Partnership Securities hereby Partnership;
(in) approvesthe exercise, ratifies and confirms directly or indirectly, through any attorney-in-fact acting under a general or limited power of attorney, of any right, including the executionright to vote, delivery and performance appurtenant to any asset or investment held by the parties thereto Partnership;
(o) the exercise of any of the Operating Company Agreement, any other limited liability company or partnership agreement powers of any other Group Member, the Underwriting Agreement, the Omnibus Agreement, the Contribution Agreement and the other agreements described in or filed as exhibits to the Registration Statement that are related to the transactions contemplated by the Registration Statement; (ii) agrees that the General Partner (enumerated in this Agreement on its own behalf of or through in connection with any officer Subsidiary of the PartnershipPartnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(p) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest, pursuant to contractual or other arrangements with such Person;
(q) the making, execution and delivery of any and all deeds, leases, notes, deeds to secure debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate in the judgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement;
(r) the issuance of additional Partnership Units, as appropriate and in the General Partner’s sole and absolute discretion, in connection with Capital Contributions by Additional Limited Partners and additional Capital Contributions by Partners pursuant to Section 4 hereof;
(s) the selection and dismissal of Partnership Employees (including employees having titles or offices such as president, vice president, secretary and treasurer), and agents, outside attorneys, accountants, consultants and contractors of the Partnership or the General Partner, the determination of their compensation and other terms of employment or hiring and the delegation to any such Partnership Employee the authority to conduct the business of the Partnership in accordance with the terms of this Agreement; and
(t) an election to dissolve the Partnership pursuant to Section 13.1.2 hereof.
7.1.2 Except as provided in Section 14.2 hereof, the General Partner is authorized to execute, deliver and perform the above-mentioned agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership without any further act, approval or vote of the Partners Partners, notwithstanding any other provision of this Agreement, the Act or the Assignees any applicable law, rule or the other Persons who may acquire an interest in Partnership Securities; and (iii) agrees that the regulation. The execution, delivery or performance by the General Partner, any Group Member Partner or any Affiliate the Partnership of any of them, of this Agreement or any agreement authorized or permitted under this Agreement (including the exercise by the General Partner or any Affiliate of the General Partner of the rights accorded pursuant to Article XV), shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement (or any other agreements) or of any duty stated or implied by law or equity.
7.1.3 At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain working capital and other reserves in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
7.1.4 In exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner (including the General Partner) of any action taken by it. The General Partner and the Partnership shall not have liability to a Limited Partner under any circumstances as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner pursuant to its authority under this Agreement.
7.1.5 The General Partner may not take any action in contravention of this Agreement, including, without limitation:
(a) taking any action that would make it impossible to carry on the ordinary business of the Partnership, except as otherwise provided in this Agreement;
(b) possessing Property, or assigning any rights in specific Property, for other than a Partnership purpose except as otherwise provided in this Agreement, including Section 7.9;
(c) admitting a Person as a Partner, except as otherwise provided in this Agreement;
(d) performing any act that would subject a Limited Partner to liability as a general partner in any jurisdiction or any other liability except as otherwise provided in this Agreement or under the Act; or
(e) entering into any contract, mortgage, loan or other agreement that prohibits or restricts the ability of (a) the General Partner or the Partnership from satisfying its obligations under Section 8.5 hereof in full or (b) a Limited Partner from exercising its rights under Section 8.5 hereof to effect a Redemption in full, except, in either case, with the written consent of such Limited Partner adversely affected by the prohibition or restriction.
Appears in 1 contract
Samples: Limited Partnership Agreement (Arizona Land Income Corp)
Management. (a) The Management By the General Partner shall conduct, direct and manage all activities of the PartnershipPartner. Except as otherwise expressly provided in this Agreement, all management powers over full, complete and exclusive discretion to manage and control the business and affairs of the Partnership are and shall be exclusively vested in the General Partner, and no Limited Partner or Assignee other than the Advisor shall have any right to participate in or exercise control or management power over the business and affairs of the Partnership. The General Partner may not be removed by the Limited Partners with or without cause.
(b) Power and Authority of the General Partner. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or which are granted to the General Partner under any other provision of this Agreement, the General Partner, subject to Section 7.3, Partner shall have full power and authority to do all things and on such terms as it, in its sole discretion, may deem deemed necessary or appropriate desirable by it to conduct the business of the Partnership, to exercise all powers set forth in Section 2.5 3.2 hereof and to effectuate the purposes set forth in Section 2.43.1 hereof, including the followingincluding, without limitation:
(i) (A) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money to permit the Partnership to make distributions to its Partners in such amounts as will permit Landwin REIT (so long as Landwin REIT qualifies as a REIT) to (1) avoid the payment of any Federal income or excise tax (including any excise tax pursuant to Section 4981 of the Code) and (2) make distributions to its stockholders in amounts sufficient to permit Landwin REIT to maintain REIT status), (B) the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, (C) the issuance of evidences any evidence of indebtednessindebtedness (including the securing of the same by deed, including indebtedness that is convertible into Partnership Securitiesmortgage, deed of trust or other lien or encumbrance on the Partnership’s assets), and (D) the incurring of any other obligationsobligations it deems necessary for the conduct of the activities of the Partnership, including the payment of all expenses associated with the General Partner;
(ii) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the PartnershipPartnership or the General Partner;
(iii) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets assets, including Real Estate Assets, of the Partnership (including the exercise or grant of any conversion, option, privilege, or subscription right or other right available in connection with any assets at any time held by the Partnership) or the merger or other combination of the Partnership with or into another Person (entity on such terms as the matters described in this clause (iii) being subject, however, to any prior approval that may be required by Section 7.3)General Partner deems proper;
(iv) the use of the assets of the Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms the General Partner sees fit, including including, without limitation,
(A) the financing of the conduct of the operations of the General Partner, Landwin REIT, the Partnership Group; subject to Section 7.6(a), or any of the Partnership’s Subsidiaries,
(B) the lending of funds to other Persons (including other Group Members)including, without limitation, the Subsidiaries of the Partnership and/or the General Partner) and the repayment or guarantee of obligations of the Partnership Group and its Subsidiaries and any other Person in which it has an equity investment, and
(C) the making of capital contributions to any member of the Partnership GroupPartnership’s Subsidiaries;
(v) the development, expansion, construction, management, operation, leasing, repair, alteration, demolition or improvement of any real property in which the Partnership or any Subsidiary of the Partnership owns a direct or indirect interest;
(vi) the negotiation, execution execution, and performance of any contracts, conveyances or other instruments (including instruments that limit the liability of General Partner considers useful or necessary to the Partnership under contractual arrangements to all or particular assets conduct of the Partnership, with ’s operations or the other party to the contract to have no recourse against implementation of the General Partner or its assets Partner’s powers under this Agreement, including contracting with contractors, developers, consultants, accountants, legal counsel, other than its interest in professional advisors and other agents and the payment of their expenses and compensation out of the Partnership, even if same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case);
(vi) the distribution of Partnership cash’s assets;
(vii) the distribution of Partnership cash or other Partnership assets in accordance with this Agreement;
(viii) the holding, management, investment and reinvestment of cash and other assets of the Partnership;
(ix) the collection and receipt of revenues and income of the Partnership;
(x) the establishment of one or more divisions of the Partnership, the selection and dismissal of employees of the Partnership (including including, without limitation, employees having titles such as “president,” “vice president,” “secretary” and “treasurer”) ” of the Partnership), and agents, outside attorneys, accountants, consultants and contractors of the Partnership, and the determination of their compensation and other terms of employment or hiringengagement;
(viii) the maintenance of such insurance for the benefit of the Partnership Group and the Partners as it deems necessary or appropriate;
(ixxi) the formation of, or acquisition of an interest (including non-voting interests in entities controlled by Affiliates of the Partnership or third parties) in, and the contribution of property and the making of loans to, any further limited or general partnershipsother Entities that the General Partner deems desirable (including, joint ventureswithout limitation, corporations, limited liability companies or other relationships (including the acquisition of interests in, and the contributions of funds or property to, or making of loans to, Subsidiaries of the Partnership and any Group Member other Person from time to time) subject ), or the incurrence of indebtedness on behalf of such Persons or the guarantee of the obligations of such Persons; provided that, as long as Landwin REIT has determined to elect to qualify as a REIT or to continue to qualify as a REIT, the restrictions set forth Partnership may not engage in Section 2.4any such formation, acquisition or contribution that would cause Landwin REIT to fail to qualify as a REIT;
(xxii) the control of any matters affecting the rights and obligations of the Partnership, including including:
(A) the bringing and defending settlement, compromise, submission to arbitration or any other form of actions at law dispute resolution, or abandonment of, any claim, cause of action, liability, debt or damages, due or owing to or from the Partnership,
(B) the commencement or defense of suits, legal proceedings, administrative proceedings, arbitration or other forms of dispute resolution, and
(C) the representation of the Partnership in equity and otherwise engaging in the conduct all suits or legal proceedings, administrative proceedings, arbitrations or other forms of litigation and dispute resolution, the incurring of legal expense expenses, and the settlement of claims and litigation;
(xi) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.8);
(xiii) unless restricted or prohibited by Section 5.7, the purchase, sale or other acquisition or disposition of Partnership Securities, or the issuance of additional options, rights, warrants and appreciation rights relating to Partnership Securities; and
(xiv) the undertaking of any action in connection with the Partnership’s participation direct or indirect investment in its Subsidiaries or any Group Member as a member other Person (including, without limitation, the contribution or partner.loan of funds by the Partnership to such Persons);
(bxiv) Notwithstanding the determination of the fair market value of any Partnership Assets distributed in kind using such reasonable method of valuation as the General Partner, in its sole discretion, may adopt;
(xv) the exercise, directly or indirectly, through any attorney-in-fact acting under a general or limited power of attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(xvi) the exercise of any of the powers of the General Partner enumerated in this Agreement or the undertaking of any action on behalf of or in connection with any Subsidiary of the Partnership or any other provision Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(xvii) the making, execution and delivery of any and all deeds, leases, notes, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate, in the judgment of the General Partner, for the accomplishment of any of the foregoing;
(xviii) the issuance of additional Partnership Interests in connection with Capital Contributions by Additional Limited Partners and additional Capital Contributions by Partners pursuant to Article 4 hereof;
(xix) the opening of bank accounts on behalf of, and in the name of, the Partnership and its Subsidiaries; and
(xx) the amendment and restatement of Exhibit A to reflect accurately at all times the Capital Contributions of, Partnership Units held by and Percentage Interests of the Partners as the same are adjusted from time to time to the extent necessary to reflect any Capital Contributions, redemptions, issuance of Partnership Units, admission of any Additional Limited Partner or any Substituted Limited Partner or otherwise, which amendment and restatement, notwithstanding anything in this Agreement to the contrary, shall not be deemed an amendment of this Agreement, as long as the Operating Company Agreement, the Delaware Act matter or any applicable law, rule or regulation, each of the Partners and the Assignees and each other Person who may acquire an interest event being reflected in Partnership Securities hereby (i) approves, ratifies and confirms the execution, delivery and performance by the parties thereto of the Operating Company Agreement, any other limited liability company or partnership agreement of any other Group Member, the Underwriting Agreement, the Omnibus Agreement, the Contribution Agreement and the other agreements described in or filed as exhibits to the Registration Statement that are related to the transactions contemplated by the Registration Statement; (ii) agrees that the General Partner (on its own or through any officer of the Partnership) Exhibit A otherwise is authorized to execute, deliver and perform the agreements referred to in clause (i) of by this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership without any further act, approval or vote of the Partners or the Assignees or the other Persons who may acquire an interest in Partnership Securities; and (iii) agrees that the execution, delivery or performance by the General Partner, any Group Member or any Affiliate of any of them, of this Agreement or any agreement authorized or permitted under this Agreement (including the exercise by the General Partner or any Affiliate of the General Partner of the rights accorded pursuant to Article XV), shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement (or any other agreements) or of any duty stated or implied by law or equityAgreement.
Appears in 1 contract
Samples: Agreement of Limited Partnership (Landwin REIT Inc)
Management. (a) The General Partner shall conduct, direct and manage all activities of the Partnership. A. Except as otherwise expressly provided in this Agreement, all management powers over the business and affairs of the Partnership are and shall be exclusively vested in the General Partner, and no Limited Partner or Assignee shall have any right to participate in or exercise control or management power over the business and affairs of the Partnership. The General Partner may not be removed by the Limited Partners with or without cause. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or which are granted to the General Partner under any other provision of this Agreement, the General Partner, subject to Section 7.37.3 hereof, shall have full power and authority to do all things and on such terms as it, in its sole discretion, may deem deemed necessary or appropriate desirable by it to conduct the business of the Partnership, to exercise all powers set forth in Section 2.5 3.2 hereof and to effectuate the purposes set forth in Section 2.43.1 hereof, including the followingincluding, without limitation:
(i1) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money to permit the Partnership to make distributions to its Partners in such amounts as will permit the Gables Trust (so long as the Gables Trust qualifies as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Section 4981 of the Code) and to make distributions to its Partners such that the Gables Trust can distribute to its shareholders amounts sufficient to permit the Gables Trust to maintain REIT status), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences evidence of indebtednessindebtedness (including the securing of same by deed to secure debt, including indebtedness that is convertible into Partnership Securitiesmortgage, deed of trust or other lien or encumbrance on the Partnership's assets) and the incurring of any other obligationsobligations it deems necessary for the conduct of the activities of the Partnership;
(ii2) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership;
(iii3) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the Partnership (including the exercise or grant of any conversion, option, privilege, or subscription right or other right available in connection with any assets at any time held by the Partnership) or the merger or other combination of the Partnership with or into another Person entity (all of the matters described in this clause (iii) being subject, however, foregoing subject to any prior approval that may be only to the extent required by Section 7.37.3 hereof);
(iv4) the use of the assets of the Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms it sees fit, including including, without limitation, the financing of the conduct of the operations of the Gables Trust, the General Partner, the Partnership Group; subject to Section 7.6(a)or any of the Partnership's Subsidiaries, the lending of funds to other Persons (including other Group Members)including, without limitation, the Subsidiaries of the Partnership and/or the Gables Trust) and the repayment or guarantee of obligations of the Partnership Group and its Subsidiaries and any other Person in which it has an equity investment, and the making of capital contributions to any member of the Partnership Groupits Subsidiaries;
(v5) the management, operation, leasing, landscaping, repair, alteration, demolition or improvement of any real property or improvements owed by the Partnership or any Subsidiary of the Partnership;
(6) the negotiation, execution execution, and performance of any contracts, conveyances or other instruments (including instruments that limit the liability of General Partner considers useful or necessary to the Partnership under contractual arrangements to all or particular assets conduct of the Partnership, with 's operations or the other party to the contract to have no recourse against implementation of the General Partner or its assets Partner's powers under this Agreement, including contracting with contractors, developers, consultants, accountants, legal counsel, other than its interest in professional advisors and other agents and the payment of their expenses and compensation out of the Partnership, even if same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case)'s assets;
(vi7) the distribution of Partnership cashcash or other Partnership assets in accordance with this Agreement;
(vii8) holding, managing, investing and reinvesting cash and other assets of the Partnership;
(9) the collection and receipt of revenues and income of the Partnership;
(10) the establishment of one or more divisions of the Partnership, the selection and dismissal of employees of the Partnership, any division of the Partnership, or the General Partner (including including, without limitation, employees having titles such as “"president,” “" "vice president,” “" "secretary” " and “"treasurer”) " of the Partnership, any division of the Partnership, or the General Partner), and agents, outside attorneys, accountants, consultants and contractors of the General Partner or the Partnership or any division of the Partnership, and the determination of their compensation and other terms of employment or hiring;
(viii11) the maintenance of such insurance for the benefit of the Partnership Group and the Partners as it deems necessary or appropriate;
(ix12) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies ventures or other relationships that it deems desirable (including including, without limitation, the acquisition of interests in, and the contributions of property to, its Subsidiaries and any Group Member other Person in which it has an equity investment from time to time) subject to the restrictions set forth in Section 2.4);
(x13) the control of any matters affecting the rights and obligations of the Partnership, including the bringing settlement, compromise, submission to arbitration or any other form of dispute resolution, or abandonment of, any claim, cause of action, liability, debt or damages, due or owing to or from the Partnership, the commencement or defense of suits, legal proceedings, administrative proceedings, arbitration or other forms of dispute, resolution, and defending the representation of actions at law the Partnership in all suits or in equity and otherwise engaging in the conduct legal proceedings, administrative proceedings, arbitrations or other forms of litigation and dispute resolution, the incurring of legal expense expense, and the settlement of claims and litigation;
(xi) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.8);
(xiii) unless restricted or prohibited by Section 5.7, the purchase, sale or other acquisition or disposition of Partnership Securities, or the issuance of additional options, rights, warrants and appreciation rights relating to Partnership Securities; and
(xiv14) the undertaking of any action in connection with the Partnership’s participation 's direct or indirect investment in its Subsidiaries or any Group Member other Person (including, without limitation, the contribution or loan of funds by the Partnership to such Persons);
(15) the determination of the fair market value of any Partnership property distributed in kind using such reasonable method of valuation as the General Partner may adopt;
(16) the exercise, directly or indirectly, through any attorney-in-fact acting under a member general or partnerlimited power of attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(17) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(18) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest pursuant to contractual or other arrangements with such Person; and
(19) the making, execution and delivery of any and all deeds, leases, notes, deeds to secure debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreement in writing necessary or appropriate in the judgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement.
(b) Notwithstanding any other provision of this Agreement, the Operating Company Agreement, the Delaware Act or any applicable law, rule or regulation, each B. Each of the Limited Partners and the Assignees and each other Person who may acquire an interest in Partnership Securities hereby (i) approves, ratifies and confirms the execution, delivery and performance by the parties thereto of the Operating Company Agreement, any other limited liability company or partnership agreement of any other Group Member, the Underwriting Agreement, the Omnibus Agreement, the Contribution Agreement and the other agreements described in or filed as exhibits to the Registration Statement that are related to the transactions contemplated by the Registration Statement; (ii) agrees that the General Partner (on its own or through any officer of the Partnership) is authorized to execute, deliver and perform the above-mentioned agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership without any further act, approval or vote of the Partners Partners, notwithstanding any other provision of this Agreement (except as provided in Section 7.3), the Act or any applicable law, rule or regulation, to the Assignees fullest extent permitted under the Act or the other Persons who may acquire an interest in Partnership Securities; and (iii) agrees that the applicable law. The execution, delivery or performance by the General Partner, any Group Member Partner or any Affiliate the Partnership of any of them, of this Agreement or any agreement authorized or permitted under this Agreement (including the exercise by the General Partner or any Affiliate of the General Partner of the rights accorded pursuant to Article XV), shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement (or any other agreements) or of any duty stated or implied by law or equity.
C. At all times from and after the date hereof, the General Partner may cause the Partnership to obtain and maintain (i) casualty, liability and other insurance on the properties of the Partnership and (ii) liability insurance for the Indemnitees hereunder.
D. At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain at any and all times working capital accounts and other cash or similar balances in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
E. In exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner of any action taken by it; provided that, if the General Partner decides to refinance (directly or indirectly) any outstanding indebtedness of the Partnership, the General Partner shall use reasonable efforts to structure such refinancing in a manner that minimizes any adverse tax consequences therefrom to the Limited Partners, and provided further that, in deciding whether or not to dispose of any property that represents more than one percent of the Partnership's total assets, the General Partner shall consider in good faith the income tax consequences of such disposition for both the General Partner and the Limited Partners. The General Partner and the Partnership shall not have liability to a Limited Partner under any circumstances as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner pursuant to its authority under this Agreement.
Appears in 1 contract
Samples: Limited Partnership Agreement (Gables Realty Limited Partnership)
Management. (a) The General Partner shall conduct, direct and manage all activities of the Partnership. A. Except as otherwise expressly provided in this Agreement, all management powers over the business and affairs of the Partnership are and shall be exclusively vested in the General Partner, and no Limited Partner or Assignee shall have any right or obligation to participate in or exercise control or management power over the business and affairs of the Partnership, or any liability in connection with the General Partner’s exercise of such control and management power. The General Partner may not be removed by the Partners, with or without cause, except with the consent of the General Partner. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or which that are granted to the General Partner under any other provision of this Agreement, the General Partner, subject to the other provisions hereof including, without limitation, Section 3.1, Section 3.2, and Section 7.3, shall have full and exclusive power and authority authority, without the consent or approval of any Limited Partner, to do all things and on such terms as it, in its sole discretion, may deem deemed necessary or appropriate desirable by it to conduct the business of the Partnership, to exercise or direct the exercise of all of the powers set forth in Section 2.5 of the Partnership under the Act and this Agreement and to effectuate the purposes set forth in Section 2.43.1 hereof, including the followingincluding, without limitation:
(i1) the making of any expenditures, the lending or borrowing of moneymoney or selling of assets (including, without limitation, making prepayments on loans and borrowing money to permit the Partnership to make distributions to the Holders in such amounts as will permit the General Partner (so long as the General Partner qualifies as a REIT) to prevent the imposition of any Federal income tax on the General Partner (including, for this purpose, any excise tax pursuant to Code Section 4981) and to make distributions to its stockholders sufficient to permit the General Partner to maintain REIT status or otherwise to satisfy the REIT Requirements), the assumption or guarantee of, or other contracting for, indebtedness and other LA\4346025.6 liabilities, the issuance of evidences of indebtednessindebtedness (including the securing of same by deed to secure debt, including indebtedness that is convertible into Partnership Securitiesmortgage, deed of trust or other lien or encumbrance on the Partnership’s assets) and the incurring of any other obligationsobligations that the General Partner deems necessary for the conduct of the activities of the Partnership;
(ii2) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership;
(iii3) the taking of any and all acts necessary or prudent to ensure that the Partnership will not be classified as a “publicly traded partnership” taxable as a corporation under Code Section 7704;
(4) subject to Section 11.2 and Section 16.7 hereof, the acquisition, dispositionsale, mortgagetransfer, pledgeexchange or other disposition of any, encumbrance, hypothecation all or exchange of any or substantially all of the assets (including the goodwill) of the Partnership (including, but not limited to, the exercise or grant of any conversion, option, privilege or subscription right or any other right available in connection with any assets at any time held by the Partnership) or the merger merger, consolidation, reorganization or other combination of the Partnership with or into another Person (the matters described in this clause (iii) being subject, however, to any prior approval that may be required by Section 7.3)entity;
(iv5) the mortgage, pledge, encumbrance or hypothecation of any assets of the Partnership, the assignment of any assets of the Partnership in trust for creditors or on the promise of the assignee to pay the debts of the Partnership, the use of the assets of the Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms that the General Partner sees fit, including including, without limitation, the financing of the conduct operations and activities of the operations General Partner, the Partnership or any of the Partnership Group; subject to Section 7.6(a)Partnership’s Subsidiaries, the lending of funds to other Persons (including other Group Members)including, without limitation, the General Partner and/or the Partnership’s Subsidiaries) and the repayment or guarantee of obligations of the Partnership, its Subsidiaries and any other Person in which the Partnership Group has an equity investment, and the making of capital contributions to any member of and equity investments in the Partnership GroupPartnership’s Subsidiaries;
(v6) the management, operation, leasing, landscaping, repair, alteration, demolition, replacement or improvement of any Property;
(7) the negotiation, execution and performance of any contracts, including leases (including ground leases), easements, management agreements, rights of way and other property-related agreements, conveyances or other instruments (including instruments that limit the liability General Partner considers useful or necessary to the conduct of the Partnership’s operations or the implementation of the General Partner’s powers under this Agreement, including contracting with contractors, developers, consultants, governmental authorities, accountants, legal counsel, other professional advisors and other agents and the payment of their expenses and compensation, as applicable, out of the Partnership’s assets;
(8) the distribution of Partnership under contractual arrangements to all cash or particular other Partnership assets in accordance with this Agreement, the holding, management, investment and reinvestment of cash and other assets of the Partnership, with and the other party to the contract to have no recourse against the General Partner or its assets other than its interest in collection and receipt of revenues, rents and income of the Partnership, even if same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case);
(vi) the distribution of Partnership cash;
(vii9) the selection and dismissal of employees of the Partnership (including if any) or the General Partner (including, without limitation, employees having titles or offices such as “president,” “vice president,” “secretary” and “treasurer”) ), and agents, outside attorneys, accountants, consultants and contractors of the Partnership or the General Partner and the determination of their compensation and other terms of employment or hiring;; LA\4346025.6
(viii10) the maintenance of such insurance (including, without limitation, directors and officers insurance) for the benefit of the Partnership Group and the Partners (including, without limitation, the General Partner) as it the General Partner deems necessary or appropriate;
(ix11) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies companies, joint ventures or other relationships that it deems desirable (including including, without limitation, the acquisition of interests in, and the contributions of property to, any Group Member Subsidiary and any other Person in which the General Partner has an equity investment from time to time) subject ); provided, however, that, as long as the General Partner has determined to continue to qualify as a REIT, the restrictions set forth Partnership will not engage in Section 2.4any such formation, acquisition or contribution that would cause the General Partner to fail to qualify as a REIT;
(x12) the control of any matters affecting the rights and obligations of the Partnership, including the bringing settlement, compromise, submission to arbitration or any other form of dispute resolution, or abandonment, of any claim, cause of action, liability, debt or damages, due or owing to or from the Partnership, the commencement or defense of suits, legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, and defending the representation of actions at law the Partnership in all suits or in equity and otherwise engaging in the conduct legal proceedings, administrative proceedings, arbitrations or other forms of litigation and dispute resolution, the incurring of legal expense expense, and the settlement of claims and litigation;
(xi) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.8);
(xiii) unless restricted or prohibited by Section 5.7, the purchase, sale or other acquisition or disposition of Partnership Securities, or the issuance of additional options, rights, warrants and appreciation rights relating to Partnership Securities; and
(xiv13) the undertaking of any action in connection with the Partnership’s participation direct or indirect investment in any Group Member as a member Subsidiary or partner.any other Person (including, without limitation, the contribution or loan of funds by the Partnership to such Persons);
(b14) Notwithstanding the determination of the fair market value of any other provision Partnership property distributed in kind using such reasonable method of valuation as the General Partner may adopt; provided, however, that such methods are otherwise consistent with the requirements of this Agreement;
(15) the enforcement of any rights against any Partner pursuant to representations, warranties, covenants and indemnities relating to such Partner’s contribution of property or assets to the Operating Company AgreementPartnership;
(16) the exercise, directly or indirectly, through any attorney-in-fact acting under a general or limited power of attorney, of any right, including the Delaware Act right to vote, appurtenant to any asset or investment held by the Partnership;
(17) the exercise of any applicable law, rule or regulation, each of the Partners and the Assignees and each other Person who may acquire an interest in Partnership Securities hereby (i) approves, ratifies and confirms the execution, delivery and performance by the parties thereto powers of the Operating Company Agreement, any other limited liability company or partnership agreement of any other Group Member, the Underwriting Agreement, the Omnibus Agreement, the Contribution Agreement and the other agreements described in or filed as exhibits to the Registration Statement that are related to the transactions contemplated by the Registration Statement; (ii) agrees that the General Partner (enumerated in this Agreement on its own behalf of or through in connection with any officer Subsidiary of the PartnershipPartnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(18) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest, pursuant to contractual or other arrangements with such Person;
(19) the making, execution and delivery of any and all deeds, leases, notes, deeds to secure debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases, confessions of judgment or any other legal instruments or agreements in writing necessary or appropriate in the judgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement; LA\4346025.6
(20) the issuance of additional Partnership Units in connection with Capital Contributions by Additional Limited Partners and additional Capital Contributions by Partners pursuant to Article 4 hereof;
(21) an election to dissolve the Partnership pursuant to Section 13.1.B hereof;
(22) the distribution of cash to acquire Common Units held by a Common Limited Partner in connection with a Common Redemption under Section 15.1 hereof;
(23) the distribution of cash to acquire Series A Preferred Units held by a Series A Limited Partner in connection with a Series A Redemption under Section 16.5 hereof;
(24) an election to acquire Tendered Common Units or Tendered Series A Units in exchange for REIT Shares; and
(25) the redemption of Series B Preferred Units.
B. Each of the Limited Partners agrees that, except as provided in Section 7.3 hereof, the General Partner is authorized to execute, deliver and perform the above-mentioned agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership without any further act, approval or vote of the Partners or any other Persons, notwithstanding any other provision of the Assignees Act or any applicable law, rule or regulation.
C. At all times from and after the date hereof, the General Partner may cause the Partnership to obtain and maintain (i) casualty, liability and other insurance on the Properties of the Partnership and (ii) liability insurance for the Indemnitees hereunder.
D. At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain working capital and other reserves in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
E. The determination as to any of the following matters, made by or at the direction of the General Partner consistent with this Agreement and the Act, shall be final and conclusive and shall be binding upon the Partnership and every Limited Partner: the amount of assets at any time available for distribution or the redemption of Common Units; the amount and timing of any distribution; any determination to redeem Tendered Units; the amount, purpose, time of creation, increase or decrease, alteration or cancellation of any reserves or charges and the propriety thereof (whether or not any obligation or liability for which such reserves or charges shall have been created shall have been paid or discharged); the amount of any Partner’s Capital Account, Adjusted Capital Account or Adjusted Capital Account Deficit; the amount of Net Income, Net Loss or Depreciation for any period; any special allocations of Net Income or Net Loss pursuant to Sections 6.2.D, 6.2.E, 6.2.F, 6.2.G, 6.2.H, 6.3, 6.4, 18.5 or 19.5; the Gross Asset Value of any Partnership asset; the Value of any REIT Share; the timing and amount of any adjustment to the Adjustment Factor; any adjustment to the number of outstanding LTIP Units pursuant to Section 18.3 or Performance Units pursuant to Section 19.3; the timing, number and redemption or repurchase price of the redemption or repurchase of any Partnership Units pursuant to Section 4.7.B; any interpretation of the terms, preferences, conversion or other Persons who may acquire an interest LA\4346025.6 rights, voting powers or rights, restrictions, limitations as to dividends or distributions, qualifications or terms or conditions of redemption of any class or series of Partnership Interest; the fair value, or any sale, bid or asked price to be applied in determining the fair value, of any asset owned or held by the Partnership Securitiesor of any Partnership Interest; the number of authorized or outstanding Units of any class or series; any matter relating to the acquisition, holding and (iii) agrees that disposition of any assets by the executionPartnership; or any other matter relating to the business and affairs of the Partnership or required or permitted by applicable law, delivery this Agreement or performance otherwise to be determined by the General Partner, any Group Member or any Affiliate of any of them, of this Agreement or any agreement authorized or permitted .
F. In exercising its authority under this Agreement and subject to Section 7.8.B, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner of any action taken (including or not taken) by it. The General Partner and the exercise Partnership shall not have liability to a Limited Partner under any circumstances as a result of any tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner or any Affiliate of the General Partner of the rights accorded pursuant to Article XV), shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons its authority under this Agreement (or any other agreements) or of any duty stated or implied by law or equityAgreement.
Appears in 1 contract
Samples: Limited Partnership Agreement (Hudson Pacific Properties, L.P.)
Management. (a) The General Partner shall conduct, direct and manage all activities of the Partnership. Except as otherwise expressly provided in this Agreement, all management powers over the business and affairs of the Partnership are and shall be exclusively vested in the General Partner, and no Limited Partner or Assignee shall have any right to participate in or exercise control or management power over the business and affairs of the Partnership. The General Partner may not be removed by the Limited Partners with or without cause, except with the consent of the General Partner. In addition to the powers now or hereafter granted to a general partner of a limited partnership under applicable law the Act or which that are granted to the General Partner under any other provision of this Agreement, the General Partner, subject to the other provisions hereof including, without limitation, Section 7.315.15, shall have full power and authority to do all things and on such terms as it, in its sole discretion, may deem deemed necessary or appropriate desirable by it to conduct the business of the Partnership, to exercise all powers set forth in Section 2.5 3.02 hereof and to effectuate the purposes set forth in Section 2.43.01 hereof, including the followingincluding, without limitation:
(i) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money or selling assets to permit the Partnership to make distributions in such amounts as will permit the Parent (so long as the Parent desires to qualify as a REIT) to avoid the payment of any income or excise tax under the Code and to make distributions to its stockholders sufficient to permit the Parent to qualify as a REIT or otherwise to satisfy the REIT Requirements), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtednessindebtedness (including the securing of same by deed to secure debt, including indebtedness that is convertible into Partnership Securitiesmortgage, deed of trust or other lien or encumbrance on the Partnership’s assets) and the incurring of any other obligationsobligations that it deems necessary for the conduct of the activities of the Partnership;
(ii) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership;
(iii) subject to Section 11.02 hereof, the acquisition, dispositionsale, mortgagelease, pledgetransfer, encumbranceexchange or other disposition of any, hypothecation all or exchange of any or substantially all of the assets of the Partnership (including, but not limited to, the exercise or grant of any conversion, option, privilege or subscription right or any other right available in connection with any assets at any time held by the Partnership) or the merger merger, consolidation, reorganization or other combination of the Partnership with or into another Person (the matters described in this clause (iii) being subject, however, to any prior approval that may be required by Section 7.3)entity;
(iv) the mortgage, pledge, encumbrance or hypothecation of any assets of the Partnership, the assignment of any assets of the Partnership in trust for creditors or on the promise of the assignee to pay the debts of the Partnership, the use of the assets of the Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms that it sees fit, including including, without limitation, the financing of the operations and activities of the General Partner, the Parent, the Partnership or any of the Partnership’s Subsidiaries, the lending of funds to other Persons (including, without limitation, the Partnership’s Subsidiaries) and the repayment of obligations of the Partnership, its Subsidiaries and any other Person in which the Partnership has an equity investment, and the making of capital contributions to and equity investments in the Partnership’s Subsidiaries;
(v) the use of the assets of the Partnership (including, without limitation, cash on hand) for any purpose consistent with the terms of this Agreement and on any terms it sees fit, including, without limitation, the financing of the conduct of the operations of the Parent, the General Partner, the Partnership Group; subject to Section 7.6(a)or any of the Partnership’s Subsidiaries, the lending of funds to other Persons (including other Group Members)including, without limitation, the Parent, the General Partner and its Subsidiaries and the Partnership’s Subsidiaries) and the repayment or guarantee of obligations of the Partnership Group and its Subsidiaries and any other Person in which the Partnership has an equity investment and the making of capital contributions to its Subsidiaries;
(vi) the management, operation, leasing, maintenance, repair, alteration, demolition, replacement or improvement of any member Property, including, without limitation, any Contributed Property, or other asset of the Partnership Groupor any Subsidiary, whether pursuant to a Services Agreement or otherwise;
(vvii) the negotiation, execution and performance of any contracts, leases, conveyances or other instruments (including instruments that limit the liability of General Partner considers useful or necessary to the Partnership under contractual arrangements to all or particular assets conduct of the Partnership, with ’s operations or the other party to the contract to have no recourse against implementation of the General Partner or its assets other than its interest in the PartnershipPartner’s powers under this Agreement, even if same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case);
(vi) the distribution of Partnership cash;
(vii) the selection and dismissal of employees (including employees having titles such as “president,” “vice president,” “secretary” and “treasurer”) and agentscontracting with contractors, outside attorneysdevelopers, consultants, government authorities, accountants, consultants legal counsel, other professional advisors and contractors other agents (including the Transfer Agent) and the determination payment of their expenses and compensation and other terms out of employment or hiringthe Partnership’s assets;
(viii) the distribution of Partnership cash or other Partnership assets in accordance with this Agreement, the holding, management, investment and reinvestment of cash and other assets of the Partnership and the collection and receipt of revenues, rents and income of the Partnership;
(ix) the maintenance of such insurance (including, without limitation, directors and officers insurance) for the benefit of the Partnership Group and the Partners (including, without limitation, the Parent and the General Partner) as it the General Partner deems necessary or appropriate, including, without limitation, (i) casualty, liability and other insurance on the Properties and (ii) liability insurance for the Indemnitees hereunder;
(ixx) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies companies, joint ventures or other relationships that the General Partner deems desirable (including including, without limitation, the acquisition of interests in, and the contributions of property to, any Group Member Subsidiary and any other Person in which it has an equity investment from time to time) subject ); provided, however, that as long as the Parent desires to qualify as a REIT, the restrictions set forth General Partner may not engage in Section 2.4any such formation, acquisition or contribution that would cause the Parent not to qualify as a REIT;
(xxi) the filing of applications, communicating and otherwise dealing with any and all governmental agencies having jurisdiction over, or in any way affecting, the Partnership’s assets or any other aspect of the Partnership business;
(xii) the control of any matters affecting the rights and obligations of the Partnership, including the bringing settlement, compromise, submission to arbitration or any other form of dispute resolution, or abandonment, of any claim, cause of action, liability, debt or damages, due or owing to or from the Partnership, the commencement or defense of suits, legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, and defending the representation of actions at law the Partnership in all suits or in equity and otherwise engaging in the conduct legal proceedings, administrative proceedings, arbitrations or other forms of litigation and dispute resolution, the incurring of legal expense expense, and the settlement of claims and litigation;
(xi) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.8);
(xiii) unless restricted or prohibited by Section 5.7, the purchase, sale or other acquisition or disposition of Partnership Securities, or the issuance of additional options, rights, warrants and appreciation rights relating to Partnership Securities; and
(xiv) the undertaking of any action in connection with the Partnership’s participation direct or indirect investment in any Group Member Subsidiary or any other Person (including, without limitation, the contribution or loan of funds by the Partnership to such Persons);
(xiv) except as otherwise specifically set forth in this Agreement, the determination of the fair market value of any Partnership property distributed in-kind using such reasonable method of valuation as it may adopt; provided, that such methods are otherwise consistent with the requirements of this Agreement;
(xv) the enforcement of any rights against any Partner pursuant to representations, warranties, covenants and indemnities relating to such Partner’s contribution of property or assets to the Partnership;
(xvi) the exercise, directly or indirectly, through any attorney-in-fact acting under a general or limited power-of-attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(xvii) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(xviii) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest, pursuant to contractual or other arrangements with such Person;
(xix) the making, execution and delivery of any and all deeds, leases, notes, deeds to secure Debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate in the judgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement;
(xx) the issuance of additional Partnership Units in connection with Capital Contributions by Additional Limited Partners and additional Capital Contributions by Partners pursuant to Article IV hereof;
(xxi) the selection and dismissal of Parent Employees (including, without limitation, employees having titles or offices such as president, vice president, secretary and treasurer), and agents, outside attorneys, investment and other advisers, managers, accountants, consultants and contractors of the Partnership, the Parent or the General Partner, the determination of their compensation and other terms of employment or hiring and the delegation to any such Parent Employee the authority to conduct the business of the Partnership in accordance with the terms of this Agreement;
(xxii) the distribution of cash to acquire Partnership Units held by a Limited Partner in connection with a Limited Partner’s exercise of its Redemption right under Section 8.06 hereof;
(xxiii) maintaining, or causing to be maintained, the books and records of the Partnership or the Transfer Agent to reflect accurately at all times the Capital Contributions and Partnership Interests of the Holders as the same are adjusted from time to time to the extent necessary to reflect redemptions, Capital Contributions, the number of Partnership Units (including any issuance thereof), the admission of any Additional Limited Partner or any Substituted Limited Partner or otherwise;
(xxiv) the determination regarding whether a payment to a Limited Partner who exercises its Redemption right under Section 8.06 that is assumed by the General Partner will be paid in the form of the Cash Amount or the Common REIT Shares Amount, except as such determination may be limited by Section 8.06;
(xxv) the collection and receipt of revenues and income of the Partnership;
(xxvi) the registration of any class of securities of the Partnership under the Securities Act or the Exchange Act, and the listing of any securities of the Partnership on any exchange;
(xxvii) an election to dissolve the Partnership pursuant to Section 13.01(b) hereof; and
(xxviii) the taking of any action necessary or appropriate to enable the Parent to qualify as a member or partnerREIT (so long as the Parent desires to qualify as a REIT).
(b) Notwithstanding any other provision of this Agreement, the Operating Company Agreement, the Delaware Act or any applicable law, rule or regulation, each Each of the Limited Partners and the Assignees and each other Person who may acquire an interest agrees that, except as provided in Partnership Securities hereby (i) approvesSection 15.15 hereof, ratifies and confirms the execution, delivery and performance by the parties thereto of the Operating Company Agreement, any other limited liability company or partnership agreement of any other Group Member, the Underwriting Agreement, the Omnibus Agreement, the Contribution Agreement and the other agreements described in or filed as exhibits to the Registration Statement that are related to the transactions contemplated by the Registration Statement; (ii) agrees that the General Partner (on its own or through any officer of the Partnership) is authorized to execute, deliver and perform the above-mentioned agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership without any further act, approval or vote of the Partners Limited Partners, notwithstanding any other provision of this Agreement, the Act or any applicable law, rule or regulation and, in the absence of any specific corporate action on the part of the General Partner to the contrary, the taking of any action or the Assignees execution of any such document or writing by an officer of the other Persons who may acquire an interest General Partner, in Partnership Securities; the name and on behalf of the General Partner, in its capacity as the general partner of the Partnership, shall conclusively evidence (iii1) agrees that the execution, delivery or performance approval thereof by the General Partner, any Group Member in its capacity as the general partner of the Partnership, (2) the General Partner’s determination that such action, document or any Affiliate writing is necessary or desirable to conduct the business and affairs of any the Partnership, exercise the powers of them, of this Agreement or any agreement authorized or permitted the Partnership under this Agreement (including and the exercise Act or effectuate the purposes of the Partnership, or any other determination by the General Partner required by this Agreement in connection with the taking of such action or any Affiliate execution of such document or writing, and (3) the authority of such officer with respect thereto.
(c) The General Partner may cause the Partnership to obtain and maintain (i) casualty, liability and other insurance on the Properties and (ii) liability insurance for the Indemnitees hereunder.
(d) The General Partner may cause the Partnership to establish and maintain working capital and other reserves in such amounts as the General Partner deems appropriate and reasonable from time to time.
(e) In exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner (including the General Partner) of any action taken (or not taken) by it. Except as may be provided in a separate written agreement between the rights accorded pursuant to Article XV)Partnership, Parent and any Limited Partner, the General Partner and the Partnership shall not constitute have liability to a breach Limited Partner under any circumstances as a result of a tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner of any duty pursuant to its authority under this Agreement provided, that the General Partner may owe the Partnership or the Limited Partners or any other Persons has acted pursuant to its authority under this Agreement (or any other agreements) or of any duty stated or implied by law or equityAgreement.
Appears in 1 contract
Samples: Limited Partnership Agreement (Ryman Hospitality Properties, Inc.)
Management. (a) The General Partner shall conduct, direct and manage all activities of the Partnership. A. Except as otherwise expressly provided in this Agreement, all management powers over the business and affairs of the Partnership are and shall be exclusively vested in the General Partner, and no Limited Partner or Assignee shall have any right to participate in or exercise control or management power over the business and affairs of the Partnership. The General Partner may not be removed by the Limited Partners with or without cause. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or which are granted to the General Partner under any other provision of this Agreement, the General Partner, subject to Section 7.3, Partner shall have full power and authority to do all things and on such terms as it, in its sole discretion, may deem deemed necessary or appropriate desirable by it to conduct the business of the Partnership, to exercise all powers set forth in Section 2.5 3.2 hereof and to effectuate the purposes set forth in Section 2.43.1 hereof, including including, without limitation (but in all cases subject to the following:terms of this Agreement):
(i1) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, money to be used to pay off a portion of the existing debt encumbering the Partnership's assets) and making prepayments on loans and borrowing money to permit the Partnership to make distributions to its Partners in such amounts as will permit PGP (so long as PGP qualifies as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Section 4981 of the Code) and to make distributions to its shareholders in amounts sufficient to permit PGP to maintain REIT status), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences evidence of indebtednessindebtedness (including the securing of the same by deed, including indebtedness that is convertible into Partnership Securitiesmortgage, deed of trust or other lien or encumbrance on the Partnership's assets) and the incurring of any other obligationsobligations it deems necessary for the conduct of the activities of the Partnership;
(ii2) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership;
(iii3) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the Partnership (including the exercise or grant of any conversion, option, privilege, or subscription right or other right available in connection with any assets at any time held by the Partnership) or the merger or other combination of the Partnership with or into another Person (the matters described in this clause (iii) being subject, however, to any prior approval that may be required by Section 7.3)entity;
(iv4) the use of the assets of the Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms it sees fit, including including, without limitation, the financing of the conduct of the operations of the General Partner, the Partnership Group; subject to Section 7.6(a)or any of the Partnership's Subsidiaries, the lending of funds to other Persons (including other Group Members)including, without limitation, the Subsidiaries of the Partnership and/or the General Partner) and the repayment or guarantee of obligations of the Partnership Group and its Subsidiaries and any other Person in which it has an equity investment, and the making of capital contributions to its Subsidiaries, the holding of any member real, personal and mixed property of the Partnership Groupin the name of the Partnership or in the name of a nominee or trustee and the creation, by grant or otherwise, of easements or servitudes;
(v5) the negotiationmanagement, execution and performance operation, leasing, collection of any contractsrents, conveyances marketing, landscaping, repair, alteration, renovation, rehabilitation, demolition or other instruments (including instruments that limit the liability improvement of the Partnership under contractual arrangements to all or particular assets of the Partnership, with the other party to the contract to have no recourse against the General Partner or its assets other than its interest in the Partnership, even if same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case);
(vi) the distribution of Partnership cash;
(vii) the selection and dismissal of employees (including employees having titles such as “president,” “vice president,” “secretary” and “treasurer”) and agents, outside attorneys, accountants, consultants and contractors and the determination of their compensation and other terms of employment or hiring;
(viii) the maintenance of such insurance for the benefit of the Partnership Group and the Partners as it deems necessary or appropriate;
(ix) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies or other relationships (including the acquisition of interests in, and the contributions of property to, any Group Member from time to time) subject to the restrictions set forth in Section 2.4;
(x) the control of any matters affecting the rights and obligations of the Partnership, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigation and the incurring of legal expense and the settlement of claims and litigation;
(xi) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.8);
(xiii) unless restricted or prohibited by Section 5.7, the purchase, sale or other acquisition or disposition of Partnership Securities, or the issuance of additional options, rights, warrants and appreciation rights relating to Partnership Securities; and
(xiv) the undertaking of any action in connection with the Partnership’s participation in any Group Member as a member or partner.
(b) Notwithstanding any other provision of this Agreement, the Operating Company Agreement, the Delaware Act or any applicable law, rule or regulation, each of the Partners and the Assignees and each other Person who may acquire an interest in Partnership Securities hereby (i) approves, ratifies and confirms the execution, delivery and performance by the parties thereto of the Operating Company Agreement, any other limited liability company or partnership agreement of any other Group Member, the Underwriting Agreement, the Omnibus Agreement, the Contribution Agreement and the other agreements described in or filed as exhibits to the Registration Statement that are related to the transactions contemplated by the Registration Statement; (ii) agrees that the General Partner (on its own or through any officer of the Partnership) is authorized to execute, deliver and perform the agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership without any further act, approval or vote of the Partners or the Assignees or the other Persons who may acquire an interest in Partnership Securities; and (iii) agrees that the execution, delivery or performance by the General Partner, any Group Member or any Affiliate of any of them, of this Agreement or any agreement authorized or permitted under this Agreement (including the exercise by the General Partner or any Affiliate of the General Partner of the rights accorded pursuant to Article XV), shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement (or any other agreements) or of any duty stated or implied by law or equity.Property
Appears in 1 contract
Samples: Limited Partnership Agreement (Pacific Gulf Properties Inc)
Management. (a) The General Partner shall conduct, direct and manage all activities of the Partnership. A. Except as otherwise expressly provided in this Agreement, all management powers over the business and affairs of the Partnership are and shall be exclusively vested in the General Partner, and no and, except as provided in Section 8.1E hereof, neither Metropolis nor the Limited Partner or Assignee shall have any right to participate in or exercise control or management power over the business and affairs of the Partnership. The General Partner may not be removed by the Metropolis or the Limited Partner with or without cause. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or which are granted to the General Partner under any other provision of this Agreement, the General PartnerPartner shall have, subject to Section 7.38.1E hereof, shall have full power and authority to do all things and on such terms as it, in its sole discretion, may deem deemed necessary or appropriate desirable by it to conduct the business of the Partnership, to exercise all powers set forth in Section 2.5 4.2 hereof and to effectuate the purposes set forth in Section 2.44.1 hereof, including the followingincluding, without limitation:
(ia) the making of any expenditures, the lending or borrowing of money, including, without limitation, making prepayments on loans and borrowing money to permit the Partnership to make distributions to its Partners in such amounts as will permit Metropolis (so long as Metropolis qualifies as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Section 4981 of the Code) and to make distributions to its stockholders in amounts sufficient to permit Metropolis to maintain REIT status, (b) the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, (c) the issuance of evidences evidence of indebtednessindebtedness (including the securing of the same by deed, including indebtedness that is convertible into Partnership Securitiesmortgage, deed of trust or other lien or encumbrance on the Partnership's assets) and (d) the incurring of any other obligationsobligations it deems necessary for the conduct of the activities of the Partnership;
(ii2) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership;
(iii3) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the Partnership (including the exercise or grant of any conversion, option, privilege, or subscription right or other right available in connection with any assets at any time held by the Partnership) or the merger or other combination of the Partnership with or into another Person (the matters described in this clause (iii) being subject, however, to any prior approval that may be required by Section 7.3)entity;
(iv4) the use of the assets of the Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms it sees fit, including including, without limitation, the financing of the conduct of the operations of the Partnership Group; subject to Section 7.6(a), the lending of funds to other Persons (including other Group Members)Partnership, the repayment or guarantee of obligations of the Partnership Group and the Subsidiaries of the Partnership and any other Person in which the Partnership has an equity investment, and the making of capital contributions to any member of the Partnership GroupPartnership's Subsidiaries;
(v5) the management, operation, expansion, development, construction, leasing, landscaping, repair, alteration, demolition or improvement of any real property or improvements owned by the Partnership or any Subsidiary of the Partnership;
(6) the negotiation, execution execution, and performance of any contracts, conveyances or other instruments (including instruments that limit the liability of General Partner considers useful or necessary to the Partnership under contractual arrangements to all or particular assets conduct of the Partnership, with 's operations or the other party to the contract to have no recourse against implementation of the General Partner or its assets Partner's powers under this Agreement, including (i) contracting with property managers, leasing agents, contractors, developers, consultants, accountants, legal counsel, other than its interest in professional advisors and other agents, and (ii) the payment of such related expenses and compensation out of the Partnership, even if same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case)'s assets;
(vi7) the distribution of Partnership cashcash or other Partnership assets in accordance with this Agreement;
(vii8) holding, managing, investing and reinvesting cash and other assets of the Partnership;
(9) the collection and receipt of revenues and income of the Partnership;
(10) the establishment of one or more divisions of the Partnership, the selection and dismissal of employees of the Partnership (including including, without limitation, employees having titles such as “"president,” “" "vice president,” “" "secretary” " and “"treasurer”) " of the Partnership), and agents, outside attorneys, accountants, consultants and contractors of the Partnership, and the determination of their compensation and other terms of employment or hiringengagement;
(viii11) the maintenance of such insurance for the benefit of the Partnership Group and the Partners as it deems necessary or appropriate;
(ix12) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies ventures or other relationships that it deems desirable (including including, without limitation, the acquisition of interests in, and the contributions of property to, its Subsidiaries and any Group Member other Person in which it has an equity investment from time to time) subject to the restrictions set forth in Section 2.4);
(x13) the control of any matters affecting the rights and obligations of the Partnership, including the bringing settlement, compromise, submission to arbitration or any other form of dispute resolution, or abandonment of, any claim, cause of action, liability, debt or damages, due or owing to or from the Partnership, the commencement or defense of suits, legal proceedings, administrative proceedings, arbitration or other forms of dispute resolution, and defending the representation of actions at law the Partnership in all suits or in equity and otherwise engaging in the conduct legal proceedings, administrative proceedings, arbitrations or other forms of litigation and dispute resolution, the incurring of legal expense expenses, and the settlement of claims and litigation;
(xi) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.8);
(xiii) unless restricted or prohibited by Section 5.7, the purchase, sale or other acquisition or disposition of Partnership Securities, or the issuance of additional options, rights, warrants and appreciation rights relating to Partnership Securities; and
(xiv14) the undertaking of any action in connection with the Partnership’s participation 's direct or indirect investment in its Subsidiaries or any Group Member other Person (including, without limitation, the contribution or loan of funds by the Partnership to such Persons);
(15) the determination of the fair market value of any Partnership property distributed in kind using such reasonable method of valuation as the General Partner may adopt;
(16) the exercise, directly or indirectly, through any attorney-in-fact acting under a member general or partnerlimited power of attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(17) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(18) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest pursuant to contractual or other arrangements with such Person;
(19) the making, execution and delivery of any and all deeds, leases, notes, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate, in the judgment of the General Partner, for the accomplishment of any of the foregoing;
(20) the issuance of additional Partnership Interests, as appropriate, in connection with Capital Contributions by Partners pursuant to Article 5 hereof; and
(21) the opening of bank accounts on behalf of, and in the name of, the Partnership and its Subsidiaries.
(b) Notwithstanding any other provision of this Agreement, the Operating Company Agreement, the Delaware Act or any applicable law, rule or regulation, each of the Partners B. Metropolis and the Assignees and each other Person who may acquire an interest in Partnership Securities hereby (i) approves, ratifies and confirms the execution, delivery and performance by the parties thereto of the Operating Company Agreement, any other limited liability company or partnership agreement of any other Group Member, the Underwriting Agreement, the Omnibus Agreement, the Contribution Agreement and the other agreements described in or filed as exhibits to the Registration Statement that are related to the transactions contemplated by the Registration Statement; (ii) agrees Limited Partner agree that the General Partner (on its own or through any officer of the Partnership) is authorized to execute, deliver and perform the above-mentioned agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership without any further act, approval or vote of the Partners (except as provided in Section 8.1E), notwithstanding any other provision of this Agreement, to the fullest extent permitted under the Act or the Assignees other applicable law, rule or the other Persons who may acquire an interest in Partnership Securities; and (iii) agrees that the regulation. The execution, delivery or performance by the General Partner, any Group Member Partner or any Affiliate the Partnership of any of them, of this Agreement or any agreement authorized or permitted under this Agreement (including the exercise by the General Partner or any Affiliate of the General Partner of the rights accorded pursuant to Article XV), shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership Partnership, Metropolis or the Limited Partners Partner or any other Persons under this Agreement (or any other agreements) or of any duty stated or implied by law or equity.
C. At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain at any and all times working capital accounts and other cash or similar balances in such amount as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
D. Except as provided in Section 8.1E, in exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner of any action taken by it. The General Partner and the Partnership shall not have liability to the Limited Partner or Metropolis under any circumstances as a result of an income tax liability incurred by the Limited Partner or its partners or Metropolis or its shareholders as a result of an action (or inaction) by the General Partner taken pursuant to its authority under and in accordance with this Agreement.
E. Notwithstanding anything to the contrary set forth in this Agreement, until the Approval Right Termination Date, the General Partner shall not, without the prior written consent of the Limited Partner (which may be given or withheld in its sole and absolute discretion) cause or permit (to the extent within the General Partner's reasonable control) any Adverse Transaction to occur; provided however that the General Partner shall be under no obligation to commence litigation or to incur any expense (unless JMB/NYC LP shall fund such expense) in order to avoid or prevent an Adverse Transaction from occurring.
F. In connection with such management and subject to any limitations set forth elsewhere in this Agreement, the General Partner:
1. Shall maintain or cause to be maintained, at the expense of the Partnership, complete and accurate records of all correspondence, documents or instruments of any nature relating to the Partnership business. Such records, together with such supporting evidence thereof as is in the control and possession of the Partnership or of the General Partner, shall be kept in the principal office of the General Partner or of the Partnership for such periods as the General Partner deems appropriate. The Partners and/or their authorized representatives, shall have the right to inspect and/or copy any or all of the above-described records during normal business hours.
2. Shall execute any and all documents or instruments of any kind which the General Partner may reasonably deem appropriate in carrying out the purposes of the Partnership.
3. Shall maintain, or cause to have maintained, at the expense of the Partnership, adequate records and accounts of all transactions, operations and expenditures and shall furnish or cause to be furnished the Partners with annual statements of account as of the end of each calendar year.
G. The General Partner may employ or retain such counsel, accountants, appraisers or other experts or advisors as the General Partner may reasonably deem appropriate for the purpose of discharging its duties hereunder, and shall be entitled to pay the fees of any such persons from the funds of the Partnership. The General Partner may act, and shall be protected in acting in good faith, on the opinion or advice of, or information obtained from, any such counsel, accountant, appraiser or other expert or advisor, whether retained or employed by the Partnership, the General Partner, or otherwise, in relation to any matter connected with the administration or operation of the business and affairs of the Partnership.
Appears in 1 contract
Samples: Partnership Agreement (Metropolis Realty Trust Inc)
Management. (a) The General Partner shall conduct, direct and manage all activities of the Partnership. A. Except as otherwise expressly provided in this Agreement, all management powers over the business and affairs of the Partnership are and shall be exclusively vested in the General Partner, and no Limited Partner or Assignee shall have any right to participate in or exercise control or management power over the business and affairs of the Partnership. The General Partner may not be removed by the Partners with or without cause, except with the consent of the General Partner. In addition to the powers now or hereafter granted to a general partner of a limited partnership under applicable law or which that are granted to the General Partner under any other provision of this Agreement, the General Partner, subject to the other provisions hereof including Section 7.3, shall have full power and authority to do all things and on such terms as it, in its sole discretion, may deem deemed necessary or appropriate desirable by it to conduct the business of the Partnership, to exercise all powers set forth in Section 2.5 3.2 hereof and to effectuate the purposes set forth in Section 2.43.1 hereof, including the followingincluding, without limitation:
(i1) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money or selling assets to permit the Partnership to make distributions to its Partners in such amounts as will permit the Parent REIT (so long as the Parent REIT desires to maintain or restore its status as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Code Section 4981) and to make distributions sufficient to permit the Parent REIT to maintain or restore REIT status or otherwise to satisfy the REIT Requirements), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtednessindebtedness (including the securing of same by deed to secure debt, including indebtedness that is convertible into Partnership Securitiesmortgage, deed of trust or other lien or encumbrance on the Partnership’s assets) and the incurring of any other obligationsobligations that it deems necessary for the conduct of the activities of the Partnership;
(ii2) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership;
(iii3) the acquisition, dispositionsale, mortgagelease, pledgetransfer, encumbranceexchange or other disposition of any, hypothecation all or exchange of any or substantially all of the assets of the Partnership (including, but not limited to, the exercise or grant of any conversion, option, privilege or subscription right or any other right available in connection with any assets at any time held by the Partnership) or the merger merger, consolidation, reorganization or other combination of the Partnership with or into another Person (the matters described in this clause (iii) being subject, however, to any prior approval that may be required by Section 7.3)entity;
(iv4) the mortgage, pledge, encumbrance or hypothecation of any assets of the Partnership, the use of the assets of the Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms that it sees fit, including including, without limitation, the financing of the conduct operations and activities of the operations Parent REIT, the General Partner, the Partnership or any of the Partnership Group; subject to Section 7.6(a)Partnership’s Subsidiaries, the lending of funds to other Persons (including other Group Members)including, without limitation, the Partnership’s Subsidiaries) and the repayment or guarantee of obligations of the Partnership, its Subsidiaries and any other Person in which the Partnership Group has an equity investment, and the making of capital contributions to and equity investments in the Partnership’s Subsidiaries;
(5) the management, operation, leasing, landscaping, repair, alteration, demolition, replacement or improvement of any member Property, including, without limitation, any Contributed Property, or other asset of the Partnership Groupor any Subsidiary, whether pursuant to a Services Agreement or otherwise;
(v6) the negotiation, execution and performance of any contracts, leases, conveyances or other instruments (including instruments that limit the liability General Partner considers useful or necessary to the conduct of the Partnership’s operations or the implementation of the General Partner’s powers under this Agreement, including contracting with contractors, developers, consultants, accountants, legal counsel, other professional advisors and other agents and the payment of their expenses and compensation out of the Partnership’s assets;
(7) the distribution of Partnership under contractual arrangements to all cash or particular other Partnership assets in accordance with this Agreement, the holding, management, investment and reinvestment of cash and other assets of the Partnership, with and the other party to the contract to have no recourse against the General Partner or its assets other than its interest in collection and receipt of revenues, rents and income of the Partnership, even if same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case);
(vi) the distribution of Partnership cash;
(vii) the selection and dismissal of employees (including employees having titles such as “president,” “vice president,” “secretary” and “treasurer”) and agents, outside attorneys, accountants, consultants and contractors and the determination of their compensation and other terms of employment or hiring;
(viii) 8) the maintenance of such insurance for the benefit of the Partnership Group and the Partners as it deems necessary or appropriate, including, without limitation, (i) casualty, liability and other insurance on the Properties and (ii) liability insurance for the Indemnitees hereunder;
(ix9) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies companies, joint ventures or other relationships that it deems desirable (including including, without limitation, the acquisition of interests in, and the contributions of property to, any Group Member Subsidiary and any other Person in which it has an equity investment from time to time) subject ); provided, however, that, as long as the Parent REIT has determined to continue to qualify as a REIT, the restrictions set forth General Partner may not engage in any such formation, acquisition or contribution that would cause the Parent REIT to fail to qualify as a REIT within the meaning of Code Section 2.4856(a);
(x10) the control of any matters affecting the rights and obligations of the Partnership, including the bringing settlement, compromise, submission to arbitration or any other form of dispute resolution, or abandonment, of any claim, cause of action, liability, debt or damages, due or owing to or from the Partnership, the commencement or defense of suits, legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, and defending the representation of actions at law the Partnership in all suits or in equity and otherwise engaging in the conduct legal proceedings, administrative proceedings, arbitrations or other forms of litigation and dispute resolution, the incurring of legal expense expense, and the settlement of claims and litigation;
(xi) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.8);
(xiii) unless restricted or prohibited by Section 5.7, the purchase, sale or other acquisition or disposition of Partnership Securities, or the issuance of additional options, rights, warrants and appreciation rights relating to Partnership Securities; and
(xiv11) the undertaking of any action in connection with the Partnership’s participation direct or indirect investment in any Group Member as a member Subsidiary or partner.any other Person (including, without limitation, the contribution of Property or contribution or loan of funds by the Partnership to such Persons);
(b12) Notwithstanding any other provision of except as otherwise specifically set forth in this Agreement, the Operating Company Agreement, the Delaware Act or any applicable law, rule or regulation, each determination of the Partners fair market value of any Partnership property distributed in kind using such reasonable method of valuation as it may adopt; provided that such methods are otherwise consistent with the requirements of this Agreement;
(13) the enforcement of any rights against any Partner pursuant to representations, warranties, covenants and indemnities relating to such Partner’s contribution of property or assets to the Assignees and each other Person who may acquire an interest in Partnership Securities hereby Partnership;
(i14) approvesthe exercise, ratifies and confirms directly or indirectly, through any attorney-in-fact acting under a general or limited power of attorney, of any right, including the executionright to vote, delivery and performance appurtenant to any asset or investment held by the parties thereto Partnership;
(15) the exercise of any of the Operating Company Agreement, any other limited liability company or partnership agreement powers of any other Group Member, the Underwriting Agreement, the Omnibus Agreement, the Contribution Agreement and the other agreements described in or filed as exhibits to the Registration Statement that are related to the transactions contemplated by the Registration Statement; (ii) agrees that the General Partner (enumerated in this Agreement on its own behalf of or through in connection with any officer Subsidiary of the PartnershipPartnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(16) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest, pursuant to contractual or other arrangements with such Person;
(17) the making, execution and delivery of any and all deeds, leases, notes, deeds to secure debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate in the judgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement;
(18) the issuance of additional Partnership Units, as appropriate and in the General Partner’s sole and absolute discretion, in connection with Capital Contributions by Additional Limited Partners and additional Capital Contributions by Partners pursuant to Article IV hereof;
(19) the selection and dismissal of Company Employees (including, without limitation, employees having titles or offices such as president, vice president, secretary and treasurer), and agents, outside attorneys, accountants, consultants and contractors of the Partnership or the General Partner, the determination of their compensation and other terms of employment or hiring and the delegation to any such Company Employee the authority to conduct the business of the Partnership in accordance with the terms of this Agreement; and
(20) an election to dissolve the Partnership pursuant to Section 13.1C hereof.
B. Each of the Limited Partners agrees that, except as provided in Section 7.3 hereof, the General Partner is authorized to execute, deliver and perform the above-mentioned agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership without any further act, approval or vote of the Partners Partners, notwithstanding any other provision of this Agreement, the Act or the Assignees any applicable law, rule or the other Persons who may acquire an interest in Partnership Securities; and (iii) agrees that the regulation. The execution, delivery or performance by the General Partner, any Group Member Partner or any Affiliate the Partnership of any of them, of this Agreement or any agreement authorized or permitted under this Agreement (including the exercise by the General Partner or any Affiliate of the General Partner of the rights accorded pursuant to Article XV), shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement (or any other agreements) or of any duty stated or implied by law or equity.
C. At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain working capital and other reserves in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
D. In exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner (including the General Partner) of any action taken by it. The General Partner and the Partnership shall not have liability to a Limited Partner under any circumstances as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner pursuant to its authority under this Agreement.
Appears in 1 contract
Samples: Agreement of Limited Partnership (Arbor Realty Trust Inc)
Management. (a) The General Partner shall conduct, direct and manage all activities of the Partnership. A. Except as otherwise expressly provided in this Agreement, all management powers over the business and affairs of the Partnership are and shall be exclusively vested in the General Partner, and and, except as provided in Section 8.1E hereof, no Limited Partner or Assignee shall have any right to participate in or exercise control or management power over the business and affairs of the Partnership. The General Partner may not be removed by the Limited Partners with or without cause. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or which are granted to the General Partner under any other provision of this Agreement, the General PartnerPartner shall have, subject to Section 7.38.1E hereof, shall have full power and authority to do all things and on such terms as it, in its sole discretion, may deem deemed necessary or appropriate desirable by it to conduct the business of the Partnership, to exercise all powers set forth in Section 2.5 4.2 hereof and to effectuate the purposes set forth in Section 2.44.1 hereof, including the followingincluding, without limitation:
(ia) the making of any expenditures, the lending or borrowing of money, including, without limitation, making prepayments on loans and borrowing money to permit the Partnership to make distributions to its Partners in such amounts as will permit the General Partner (so long as the General Partner qualifies as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Section 4981 of the Code) and to make distributions to its stockholders in amounts sufficient to permit the General Partner to maintain REIT status, (b) the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, (c) the issuance of evidences evidence of indebtednessindebtedness (including the securing of the same by deed, including indebtedness that is convertible into Partnership Securitiesmortgage, deed of trust or other lien or encumbrance on the Partnership's assets) and (d) the incurring of any other obligationsobligations it deems necessary for the conduct of the activities of the Partnership;
(ii2) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership;
(iii3) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the Partnership (including the exercise or grant of any conversion, option, privilege, or subscription right or other right available in connection with any assets at any time held by the Partnership) or the merger or other combination of the Partnership with or into another Person (the matters described in this clause (iii) being subject, however, to any prior approval that may be required by Section 7.3)entity;
(iv4) the use of the assets of the Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms it sees fit, including including, without limitation, the financing of the conduct of the operations of the Partnership Group; subject to Section 7.6(a)General Partner, the Partnership, the Property Owning Partnerships or any of the Partnership's Subsidiaries, the lending of funds to other Persons (including other Group Members)including, without limitation, the Property Owning Partnerships, the Subsidiaries of the Partnership and/or the General Partner) and the repayment or guarantee of obligations of the Partnership, the Property Owning Partnerships and the Subsidiaries of the Partnership Group and any other Person in which the Partnership has an equity investment, and the making of capital contributions to any member of the Partnership GroupProperty Owning Partnerships and the Partnership's Subsidiaries;
(v5) the management, operation, expansion, development, construction, leasing, landscaping, repair, alteration, demolition or improvement of any real property or improvements owned by the Partnership or any Subsidiary of the Partnership;
(6) the negotiation, execution execution, and performance of any contracts, conveyances or other instruments (including instruments that limit the liability of General Partner considers useful or necessary to the Partnership under contractual arrangements to all or particular assets conduct of the Partnership, with 's operations or the other party to the contract to have no recourse against implementation of the General Partner or its assets Partner's powers under this Agreement, including (i) contracting with property managers, leasing agents, contractors, developers, consultants, accountants, legal counsel, other than its interest in professional advisors and other agents, and (ii) the payment of such related expenses and compensation out of the Partnership, even if same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case)'s assets;
(vi7) the distribution of Partnership cashcash or other Partnership assets in accordance with this Agreement;
(vii8) holding, managing, investing and reinvesting cash and other assets of the Partnership;
(9) the collection and receipt of revenues and income of the Partnership;
(10) the establishment of one or more divisions of the Partnership, the selection and dismissal of employees of the Partnership (including including, without limitation, employees having titles such as “"president,” “" "vice president,” “" "secretary” " and “"treasurer”) " of the Partnership), and agents, outside attorneys, accountants, consultants and contractors of the Partnership, and the determination of their compensation and other terms of employment or hiringengagement;
(viii11) the maintenance of such insurance for the benefit of the Partnership Group and the Partners as it deems necessary or appropriate;
(ix12) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies ventures or other relationships that it deems desirable (including including, without limitation, the acquisition of interests in, and the contributions of property to, its Subsidiaries, the Property Owning Partnerships and any Group Member other Person in which it has an equity investment from time to time) subject to the restrictions set forth in Section 2.4);
(x13) the control of any matters affecting the rights and obligations of the Partnership, including the bringing settlement, compromise, submission to arbitration or any other form of dispute resolution, or abandonment of, any claim, cause of action, liability, debt or damages, due or owing to or from the Partnership, the commencement or defense of suits, legal proceedings, administrative proceedings, arbitration or other forms of dispute resolution, and defending the representation of actions at law the Partnership in all suits or in equity and otherwise engaging in the conduct legal proceedings, administrative proceedings, arbitrations or other forms of litigation and dispute resolution, the incurring of legal expense expenses, and the settlement of claims and litigation;
(xi) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.8);
(xiii) unless restricted or prohibited by Section 5.7, the purchase, sale or other acquisition or disposition of Partnership Securities, or the issuance of additional options, rights, warrants and appreciation rights relating to Partnership Securities; and
(xiv14) the undertaking of any action in connection with the Partnership’s participation 's direct or indirect investment in its Subsidiaries, the Property Owning Partnerships or any Group Member other Person (including, without limitation, the contribution or loan of funds by the Partnership to such Persons);
(15) the determination of the fair market value of any Partnership property distributed in kind using such reasonable method of valuation as the General Partner may adopt;
(16) the exercise, directly or indirectly, through any attorney-in-fact acting under a member general or partnerlimited power of attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(17) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership, the Property Owning Partnerships or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(18) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest pursuant to contractual or other arrangements with such Person;
(19) the making, execution and delivery of any and all deeds, leases, notes, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate, in the judgment of the General Partner, for the accomplishment of any of the foregoing;
(20) the issuance of additional Partnership Interests, as appropriate, in connection with Capital Contributions by Additional Limited Partners and additional Capital Contributions by Partners pursuant to Article 5 hereof; and
(21) The opening of bank accounts on behalf of, and in the name of, the Partnership and its Subsidiaries.
(b) Notwithstanding any other provision of this Agreement, the Operating Company Agreement, the Delaware Act or any applicable law, rule or regulation, each B. Each of the Limited Partners and the Assignees and each other Person who may acquire an interest in Partnership Securities hereby (i) approves, ratifies and confirms the execution, delivery and performance by the parties thereto of the Operating Company Agreement, any other limited liability company or partnership agreement of any other Group Member, the Underwriting Agreement, the Omnibus Agreement, the Contribution Agreement and the other agreements described in or filed as exhibits to the Registration Statement that are related to the transactions contemplated by the Registration Statement; (ii) agrees that the General Partner (on its own or through any officer of the Partnership) is authorized to execute, deliver and perform the above-mentioned agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership without any further act, approval or vote of the Partners (except as provided in Section 8.1E), notwithstanding any other provision of this Agreement, to the fullest extent permitted under the Act or the Assignees other applicable law, rule or the other Persons who may acquire an interest in Partnership Securities; and (iii) agrees that the regulation. The execution, delivery or performance by the General Partner, any Group Member Partner or any Affiliate the Partnership of any of them, of this Agreement or any agreement authorized or permitted under this Agreement (including the exercise by the General Partner or any Affiliate of the General Partner of the rights accorded pursuant to Article XV), shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement (or any other agreements) or of any duty stated or implied by law or equity.
C. At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain at any and all times working capital accounts and other cash or similar balances in such amount as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
D. Except as provided in Section 8.1E, in exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner of any action taken by it. The General Partner and the Partnership shall not have liability to a Limited Partner under any circumstances as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner taken pursuant to its authority under and in accordance with this Agreement.
E. Notwithstanding anything to the contrary set forth in this Agreement, until the Approval Right Termination Date, the General Partner shall not, without the prior written consent of the Upper Tier Limited Partnership (which may be given or withheld in its sole and absolute discretion) cause or permit (to the extent within the General Partner's reasonable control) any Adverse Transaction to occur, provided however that the General Partner shall be under no obligation to commence litigation or to incur any expense (unless JMB LP shall fund such expense) in order to avoid or prevent an Adverse Transaction from occurring. In addition, until the Approval Right Termination Date, the General Partner shall not, without the prior written consent of the Upper Tier Limited Partnership (which may be given or withheld in its sole and absolute discretion), have the power to take, on behalf of the Partnership as a limited partner of the Property Owning Partnerships, the following actions:
1. Consent to any Adverse Transaction (as such term is defined in the Property Owning Partnership Agreements) pursuant to Section 6.1E of the Property Owning Partnership Agreements;
2. Consent to the amendment of the Property Owning Partnership Agreements in a manner that would be prohibited under Sections 15.1B and 15.1C hereof with respect to this Agreement; and
3. Consent to the dissolution of the Property Owning Partnerships pursuant to Section 11.1C of the Property Owning Partnership Agreements. 11764.0001 340937.14 27
Appears in 1 contract
Samples: Limited Partnership Agreement (Metropolis Realty Trust Inc)
Management. (a) The General Partner shall conduct, direct and manage all activities of the Partnership. A. Except as otherwise expressly provided in this Agreement, all management powers over the business and affairs of the Partnership are and shall be exclusively vested in the General Partner, and no Limited Partner or Assignee shall have any right to participate in or exercise control or management power over the business and affairs of the Partnership. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or which are granted to the General Partner under any other provision of this Agreement, the General Partner, subject to Section 7.37.3 hereof, shall have full power and authority to do all things and on such terms as it, in its sole discretion, may deem deemed necessary or appropriate desirable by it to conduct the business of the Partnership, to exercise all powers set forth in Section 2.5 3.2 hereof and to effectuate the purposes set forth in Section 2.43.1 hereof, including the followingincluding, without limitation:
(i1) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money to permit the Partnership to make distributions to its Partners in such amounts as will permit the General Partner (so long as the General Partner qualifies as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Section 4981 of the Code) and to make distributions to its stockholders sufficient to permit the General Partner to maintain REIT status), provided that, except as provided in Section 10.4, the General Partner is prohibited from lending money or permitting the Partnership to lend money to any Irvine Person, the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtednessindebtedness (including the securing of same by deed to secure debt, including indebtedness that is convertible into Partnership Securitiesmortgage, deed of trust or other lien or encumbrance on the Partnership's assets) and the incurring of any other obligationsobligations it deems necessary for the conduct of the activities of the Partnership;
(ii2) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership;
(iii3) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the Partnership (including the exercise or grant of any conversion, option, privilege, or subscription right or any other right available in connection with any assets at any time held by the Partnership) or the merger or other combination of the Partnership with or into another Person entity (all of the matters described in this clause (iii) being subject, however, foregoing subject to any prior approval that may be only to the extent required by Section 7.37.3 hereof);, provided that, in the event of any sale, exchange, disposition or other transfer of any Property of the Partnership, or the merger or other combination of the Partnership with or into another entity, the Partnership shall no later than the end of the calendar quarter in which such sale, exchange, disposition, other transfer, merger or combination becomes a taxable event to the General Partner or any of the Common Limited Partners effect a distribution of cash pro rata by Junior Percentage Interests (or, at the option of the General Partner, a promissory note of the Partnership, bearing interest (to the extent permitted by law) at a rate per annum equal to the dividend yield on the REIT Shares, based on the most recent quarterly dividend and the Value as of the date of issuance of such note, and due and payable as soon as reasonably practicable but in no event later than 45 days after the date of issuance), in addition to its then regular quarterly distribution with respect to the Junior Partnership Interests, in an amount such that the pro rata share thereof received by each such Partner shall equal or exceed the total liability of such Partner for federal, state and local income and franchise taxes resulting from such sale, exchange, disposition, other transfer, merger or combination and from such distribution as determined in accordance with the books and records of the Partnership (which determination will be conclusive and binding absent manifest error).
(iv4) the use of the assets of the Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms it sees fit, including including, without limitation, the financing of the conduct of the operations of the General Partner, the Partnership Group; subject to Section 7.6(a)or any of the Partnership's Subsidiaries, the lending of funds to other Persons (including other Group Members)including, without limitation, the Partnership's Subsidiaries) and the repayment or guarantee of obligations of the Partnership Group and its Subsidiaries and any other Person in which it has an equity investment and the making of capital contributions to any member of the Partnership Groupits Subsidiaries;
(v5) the management, operation, leasing, landscaping, repair, alteration, demolition, replacement or improvement of any real property or improvements owned by the Partnership or any Subsidiary of the Partnership;
(6) the negotiation, execution execution, and performance of any contracts, conveyances or other instruments (including instruments that limit the liability of General Partner considers useful or necessary to the Partnership under contractual arrangements to all or particular assets conduct of the Partnership, with 's operations or the other party to the contract to have no recourse against implementation of the General Partner or its assets Partner's powers under this Agreement, including contracting with contractors, developers, consultants, accountants, legal counsel, other than its interest in professional advisors and other agents and the payment of their expenses and compensation out of the Partnership, even if same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case)'s assets;
(vi7) the distribution of Partnership cashcash or other Partnership assets in accordance with this Agreement;
(vii8) holding, managing, investing and reinvesting cash and other assets of the Partnership;
(9) the collection and receipt of revenues and income of the Partnership;
(10) the establishment of one or more divisions of the Partnership, the selection and dismissal of employees of the Partnership, any division of the Partnership or the General Partner (including including, without limitation, employees designated as officers having titles such as “"president,” “", "vice president,” “", "secretary” " and “"treasurer”) " of the Partnership, any division of the Partnership or the General Partner), and agents, outside attorneys, accountants, consultants and contractors of the Partnership, any division of the Partnership or the General Partner and the determination of their compensation and other terms of employment or hiring;
(viii11) the maintenance of such insurance for the benefit of the Partnership Group and the Partners as it deems necessary or appropriate;
(ix12) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies ventures or other relationships that it deems desirable (including including, without limitation, the acquisition of interests in, and the contributions of property to, its Subsidiaries and any Group Member other Person in which it has an equity investment from time to time) subject to the restrictions set forth in Section 2.4);
(x13) the control of any matters affecting the rights and obligations of the Partnership, including the bringing settlement, compromise, submission to arbitration or any other form of dispute resolution, or abandonment of, any claim, cause of action, liability, debt or damages, due or owing to or from the Partnership, the commencement or defense of suits, legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, and defending the representation of actions at law the Partnership in all suits or in equity and otherwise engaging in the conduct legal proceedings, administrative proceedings, arbitrations or other forms of litigation and dispute resolution, the incurring of legal expense expense, and the settlement of claims and litigation;
(xi) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.8);
(xiii) unless restricted or prohibited by Section 5.7, the purchase, sale or other acquisition or disposition of Partnership Securities, or the issuance of additional options, rights, warrants and appreciation rights relating to Partnership Securities; and
(xiv14) the undertaking of any action in connection with the Partnership’s participation 's direct or indirect investment in its Subsidiaries or any Group Member other Person (including, without limitation, the contribution or loan of funds by the Partnership to such Persons);
(15) the exercise, directly or indirectly, through any attorney-in-fact acting under a general or limited power of attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(16) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(17) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest, pursuant to contractual or other arrangements with such Person;
(18) the making, execution and delivery of any and all deeds, leases, notes, deeds to secure debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or 45 51 appropriate in the judgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement; and
(19) the issuance of additional Partnership Units as a member or partnerappropriate in connection with Capital Contributions by Additional Limited Partners and additional Capital Contributions by Partners pursuant to Article 4 hereof.
(b) Notwithstanding any other provision of this Agreement, the Operating Company Agreement, the Delaware Act or any applicable law, rule or regulationB. Except as provided in Section 7.3 hereof, each of the Limited Partners and the Assignees and each other Person who may acquire an interest in Partnership Securities hereby (i) approves, ratifies and confirms the execution, delivery and performance by the parties thereto of the Operating Company Agreement, any other limited liability company or partnership agreement of any other Group Member, the Underwriting Agreement, the Omnibus Agreement, the Contribution Agreement and the other agreements described in or filed as exhibits to the Registration Statement that are related to the transactions contemplated by the Registration Statement; (ii) agrees that the General Partner (on its own or through any officer of the Partnership) is authorized to execute, deliver and perform the above-mentioned agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership without any further act, approval or vote of the Partners Partners, notwithstanding any other provision of this Agreement, the Act or the Assignees any applicable law, rule or the other Persons who may acquire an interest in Partnership Securities; and (iii) agrees that the regulation. The execution, delivery or performance by the General Partner, any Group Member Partner or any Affiliate the Partnership of any of them, of this Agreement or any agreement authorized or permitted under this Agreement (including the exercise by the General Partner or any Affiliate of the General Partner of the rights accorded pursuant to Article XV), shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement (or any other agreements) or of any duty stated or implied by law or equity.
C. At all times from and after the Prior Agreement Effective Date, the General Partner may cause the Partnership to obtain and maintain (i) casualty, liability and other insurance on the Properties of the Partnership and (ii) liability insurance for the Indemnitees hereunder.
D. At all times from and after the Prior Agreement Effective Date, the General Partner may cause the Partnership to establish and maintain any and all reserves, working capital accounts and other cash or cash equivalents in such amounts as the General Partner, in its sole discretion, deems appropriate and reasonable from time to time.
E. In exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner of any action taken by it. Except as otherwise provided in the Declaration of Trust, the General Partner and the Partnership shall not have liability to a Limited Partner under any circumstances as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner pursuant to its authority under this Agreement so long as the action or inaction is taken in good faith.
Appears in 1 contract
Samples: Limited Partnership Agreement (Irvine Apartment Communities L P)
Management. (a) The General Partner shall conduct, direct and manage all activities of the Partnership. A. Except as otherwise expressly provided in this Agreement, all management powers over the business and affairs of the Partnership shall be are exclusively vested in the General Partner, and no Limited Partner or Assignee shall have any right to participate in or exercise control or management power over the business and affairs of the Partnership. The General Partner may not be removed by the Limited Partners with or without cause, except with the consent of the General Partner. In addition to the powers now or hereafter granted a general partner of a limited partnership under the Act and other applicable law or which are granted to the General Partner under any other provision of this Agreement, the General Partner, subject to the other provisions hereof including Section 7.3, shall have full power and authority to do all things and on such terms as it, in its sole discretion, may deem deemed necessary or appropriate desirable by it to conduct the business of the Partnership, to exercise all powers set forth in Section 2.5 3.2 hereof and to effectuate the purposes set forth in Section 2.43.1 hereof, including the followingincluding, without limitation:
(i1) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money to permit the Partnership to make distributions to its Partners in such amounts as will permit the General Partner (so long as the General Partner has determined to qualify as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Section 4981 of the Code) and to make distributions to its stockholders sufficient to permit the General Partner to maintain REIT status), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtednessindebtedness (including the securing of same by mortgage, including indebtedness that is convertible into Partnership Securities, deed of trust or other lien or encumbrance on all or any of the Partnership's assets) and the incurring of any other obligationsobligations it deems necessary for the conduct of the activities of the Partnership;
(ii2) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership;
(iii3) subject to the provisions of Section 7.3.D hereof, the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the Partnership or the merger or other combination of the Partnership with or into another Person (the matters described in this clause (iii) being subject, however, to any prior approval that may be required by Section 7.3)entity;
(iv4) the mortgage, pledge, encumbrance or hypothecation of all or any assets of the Partnership, and the use of the assets of the Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms it sees fit, including including, without limitation, the financing of the conduct of or the operations of the Partnership Group; subject to Section 7.6(a)General Partner or the Partnership, the lending of funds to other Persons (including other Group Members)including, without limitation, the General Partner (if necessary to permit the financing or capitalization of a subsidiary of the General Partner or the Partnership) and any Subsidiaries of the Partnership) and the repayment or guarantee of obligations of the Partnership Group Partnership, any of its Subsidiaries and the making of capital contributions to any member of the Partnership Groupother Person in which it has an equity investment;
(v5) the negotiation, execution execution, and performance of any contracts, leases, conveyances or other instruments (including instruments that limit the liability of General Partner considers useful or necessary to the Partnership under contractual arrangements to all or particular assets conduct of the Partnership, with 's operations or the other party to the contract to have no recourse against implementation of the General Partner or its assets other than its interest in the Partnership, even if same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case)Partner's powers under this Agreement;
(vi6) the distribution of Partnership cashcash or other Partnership assets in accordance with this Agreement;
(vii7) the selection and dismissal of employees of the Partnership (including including, without limitation, employees having titles such as “"president,” “" "vice president,” “" "secretary” " and “"treasurer”) "), and agents, outside attorneys, accountants, consultants and contractors and of the Partnership, the determination of their compensation and other terms of employment or hiring, including waivers of conflicts of interest and the payment of their expenses and compensation out of the Partnership's assets;
(viii) 8) the maintenance of such insurance for the benefit of the Partnership Group and the Partners as it deems necessary or appropriate;
(ix9) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies ventures or other relationships that it deems desirable (including including, without limitation, the acquisition of interests in, and the contributions of property to, to any Group Member Subsidiary and any other Person in which it has an equity investment from time to time) subject ); provided that, as long as the General Partner has -------- ---- determined to continue to qualify as a REIT, the restrictions set forth Partnership may not engage in Section 2.4any such formation, acquisition or contribution that would cause the General Partner to fail to qualify as a REIT;
(x10) the control of any matters affecting the rights and obligations of the Partnership, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigation and the incurring of legal expense and the settlement of claims and litigation;
(xi) , and the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.8);
(xiii) unless restricted or prohibited by Section 5.7, the purchase, sale or other acquisition or disposition of Partnership Securities, or the issuance of additional options, rights, warrants and appreciation rights relating to Partnership Securities; and
(xiv11) the undertaking of any action in connection with the Partnership’s participation 's direct or indirect investment in any Group Member as a member Person (including, without limitation, contributing or partner.loaning Partnership funds to, incurring indebtedness on behalf of, or guarantying the obligations of any such Persons);
(b12) Notwithstanding any subject to the other provision of provisions in this Agreement, the Operating Company determination of the fair market value of any Partnership property distributed in kind using such reasonable method of valuation as it may adopt, provided that such methods are -------- ---- otherwise consistent with requirements of this Agreement;
(13) the management, operation, leasing, landscaping, repair, alteration, demolition or improvement of any real property or improvements owned by the Delaware Act Partnership or any applicable law, rule or regulation, each Subsidiary of the Partners Partnership or any Person in which the Partnership has made a direct or indirect equity investment;
(14) holding, managing, investing and reinvesting cash and other assets of the Assignees Partnership;
(15) the collection and each receipt of revenues and income of the Partnership;
(16) the exercise, directly or indirectly through any attorney-in-fact acting under a general or limited power of attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(17) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person who may acquire an interest in which the Partnership Securities hereby has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(i18) approves, ratifies and confirms the execution, delivery and performance by the parties thereto exercise of any of the Operating Company Agreement, any other limited liability company or partnership agreement powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest, pursuant to contractual or other Group Memberarrangements with such Person; and
(19) the making, the Underwriting Agreementexecution and delivery of any and all deeds, the Omnibus Agreementleases, the Contribution Agreement and the notes, deeds to secure debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or other agreements described in writing necessary or filed as exhibits to appropriate in the Registration Statement that are related to judgment of the transactions contemplated by General Partner for the Registration Statement; (ii) accomplishment of any of the powers of the General Partner enumerated in this Agreement.
B. Each of the Limited Partners agrees that the General Partner (on its own or through any officer of the Partnership) is authorized to execute, deliver and perform the above-mentioned agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership without any further act, approval or vote of the Partners partners, notwithstanding any other provisions of this Agreement (except as provided in Section 7.3), the Act or the Assignees any applicable law, rule or the other Persons who may acquire an interest in Partnership Securities; and (iii) agrees that the regulation. The execution, delivery or performance by the General Partner, any Group Member Partner or any Affiliate the Partnership of any of them, of this Agreement or any agreement authorized or permitted under this Agreement (including the exercise by the General Partner or any Affiliate of the General Partner of the rights accorded pursuant to Article XV), shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement (or any other agreements) or of any duty stated or implied by law or equity.
C. At all times from and after the date hereof, the General Partner may cause the Partnership to obtain and maintain (i) casualty, liability and other insurance (including, without limitation, earthquake insurance) on the properties of the Partnership and (ii) liability insurance for the Indemnities hereunder.
D. At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain working capital and other reserves in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
E. In exercising its authority under this Agreement, the General Partner may, but, other than as set forth in the following sentence, in Section 11.2.D and as expressly set forth in the Contribution Agreement, shall be under no obligation to, take into account the tax consequences to any Partner (including the General Partner) of any action taken by the General Partner. The General Partner, on behalf of the Partnership, shall use commercially reasonable efforts to cooperate with the Common Limited Partners to minimize any taxes payable in connection with any repayment, refinancing, replacement or restructuring of Debt, or any sale, exchange or any other disposition of assets, of the Partnership. The General Partner and the Partnership shall not have liability to a Limited Partner under any circumstances as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner pursuant to its authority under this Agreement.
F. Except as otherwise provided herein, to the extent the duties of the General Partner require expenditures of funds to be paid to third parties, the General Partner shall not have any obligations hereunder except to the extent that Partnership funds are reasonably available to it for the performance of such duties, and nothing herein contained shall be deemed to authorize or require the General Partner, in its capacity as such, to expend its individual funds for payment to third parties or to undertake any individual liability or obligation on behalf of the Partnership.
Appears in 1 contract
Management. (a) The General Partner shall conduct, direct and manage all activities of the Partnership. Except as otherwise expressly provided in this Agreement, all management powers over the business and affairs of the Partnership are and shall be exclusively vested in the General Partner, and no Limited Partner or Assignee shall have any right to participate in or exercise control or management power over the business and affairs of the Partnership. The General Partner may not be removed by the Limited Partners, except with the consent of the General Partner. In addition to the powers now or hereafter granted to a general partner of a limited partnership under applicable law or which that are granted to the General Partner under any other provision of this Agreement, the General Partner, subject to the other provisions hereof including Section 7.37.03 and Section 11.02, shall have full power and authority to do all things and on such terms as it, in its sole discretion, may deem deemed necessary or appropriate desirable by it to conduct the business of the Partnership, to exercise all powers set forth in Section 2.5 3.02 hereof and to effectuate the purposes set forth in Section 2.43.01 hereof, including the followingincluding, without limitation:
(i) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money or selling assets to permit the Partnership to make distributions to its Partners in such amounts as will permit the General Partner (so long as the General Partner desires to maintain or restore its qualification as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Code Section 4981) and to make distributions to its stockholders sufficient to permit the General Partner to maintain or restore REIT qualification or otherwise to satisfy the REIT Requirements), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtednessindebtedness (including the securing of same by deed to secure debt, including indebtedness that is convertible into Partnership Securitiesmortgage, deed of trust or other lien or encumbrance on the Partnership’s assets) and the incurring of any other obligationsobligations that it deems necessary for the conduct of the activities of the Partnership;
(ii) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership, the registration of any class of securities of the Partnership under the Exchange Act and the listing of any debt securities of the Partnership on any exchange;
(iii) subject to Section 11.02 hereof, the acquisition, dispositionsale, mortgagelease, pledgetransfer, encumbranceexchange or other disposition of any, hypothecation all or exchange of any or substantially all of the assets of the Partnership (including, but not limited to, the exercise or grant of any conversion, option, privilege or subscription right or any other right available in connection with any assets at any time held by the Partnership) or the merger merger, consolidation, reorganization or other combination of the Partnership with or into another Person (the matters described in this clause (iii) being subject, however, to any prior approval that may be required by Section 7.3)entity;
(iv) the mortgage, pledge, encumbrance or hypothecation of any assets of the Partnership, the use of the assets of the Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms that it sees fit, including including, without limitation, the financing of the operations and activities of the General Partner, the Partnership or any of the Partnership’s Subsidiaries, the lending of funds to other Persons (including, without limitation, the Partnership’s Subsidiaries) and the repayment of obligations of the Partnership, its Subsidiaries and any other Person in which the Partnership has an equity investment, and the making of capital contributions to and equity investments in the Partnership’s Subsidiaries;
(v) the use of the assets of the Partnership (including, without limitation, cash on hand) for any purpose consistent with the terms of this Agreement and on any terms it sees fit, including, without limitation, the financing of the conduct of the operations of the General Partner, the Partnership Group; subject to Section 7.6(a)or any of the Partnership’s Subsidiaries, the lending of funds to other Persons (including other Group Members)including, without limitation, the General Partner and its Subsidiaries and the Partnership’s Subsidiaries) and the repayment or guarantee of obligations of the Partnership Group and its Subsidiaries and any other Person in which the Partnership has an equity investment and the making of capital contributions to its Subsidiaries;
(vi) the management, operation, leasing, landscaping, repair, alteration, demolition, replacement or improvement of any member Property, including, without limitation, any Contributed Property, or other asset of the Partnership Groupor any Subsidiary, whether pursuant to a Services Agreement or otherwise;
(vvii) the negotiation, execution and performance of any contracts, leases, conveyances or other instruments (including instruments that limit the liability of General Partner considers useful or necessary to the Partnership under contractual arrangements to all or particular assets conduct of the Partnership, with ’s operations or the other party to the contract to have no recourse against implementation of the General Partner or its assets Partner’s powers under this Agreement, including contracting with contractors, developers, consultants, accountants, legal counsel, other than its interest in professional advisors and other agents and the payment of their expenses and compensation out of the Partnership, even if same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case)’s assets;
(viviii) the distribution of Partnership cashcash or other Partnership assets in accordance with this Agreement, the holding, management, investment and reinvestment of cash and other assets of the Partnership and the collection and receipt of revenues, rents and income of the Partnership;
(vii) the selection and dismissal of employees (including employees having titles such as “president,” “vice president,” “secretary” and “treasurer”) and agents, outside attorneys, accountants, consultants and contractors and the determination of their compensation and other terms of employment or hiring;
(viiiix) the maintenance of such insurance for the benefit of the Partnership Group and the Partners as it the General Partner deems necessary or appropriate, including, without limitation, (i) casualty, liability and other insurance on the Properties and (ii) liability insurance for the Indemnitees hereunder;
(ixx) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies companies, joint ventures or other relationships that the General Partner deems desirable (including including, without limitation, the acquisition of interests in, and the contributions of property to, any Group Member Subsidiary and any other Person in which it has an equity investment from time to time); provided, however, that as long as the General Partner has determined to continue to qualify as a REIT, the General Partner may not engage in any such formation, acquisition or contribution that would cause it to fail to qualify as a REIT within the meaning of Code Section 856(a) subject (so long as the General Partner desires to the restrictions set forth in Section 2.4maintain its qualification as a REIT);
(xxi) the filing of applications, communicating and otherwise dealing with any and all governmental agencies having jurisdiction over, or in any way affecting, the Partnership’s assets or any other aspect of the Partnership business;
(xii) the control of any matters affecting the rights and obligations of the Partnership, including the bringing settlement, compromise, submission to arbitration or any other form of dispute resolution, or abandonment, of any claim, cause of action, liability, debt or damages, due or owing to or from the Partnership, the commencement or defense of suits, legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, and defending the representation of actions at law the Partnership in all suits or in equity and otherwise engaging in the conduct legal proceedings, administrative proceedings, arbitrations or other forms of litigation and dispute resolution, the incurring of legal expense expense, and the settlement of claims and litigation;
(xi) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.8);
(xiii) unless restricted or prohibited by Section 5.7, the purchase, sale or other acquisition or disposition of Partnership Securities, or the issuance of additional options, rights, warrants and appreciation rights relating to Partnership Securities; and
(xiv) the undertaking of any action in connection with the Partnership’s participation direct or indirect investment in any Group Member Subsidiary or any other Person (including, without limitation, the contribution or loan of funds by the Partnership to such Persons);
(xiv) except as otherwise specifically set forth in this Agreement, the determination of the fair market value of any Partnership property distributed in-kind using such reasonable method of valuation as it may adopt; provided, that such methods are otherwise consistent with the requirements of this Agreement;
(xv) the enforcement of any rights against any Partner pursuant to representations, warranties, covenants and indemnities relating to such Partner’s contribution of property or assets to the Partnership;
(xvi) the exercise, directly or indirectly, through any attorney-in-fact acting under a general or limited power-of-attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(xvii) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(xviii) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest, pursuant to contractual or other arrangements with such Person;
(xix) the making, execution and delivery of any and all deeds, leases, notes, deeds to secure Debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate in the judgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement;
(xx) the issuance of additional Partnership Units, as appropriate and in the General Partner’s sole and absolute discretion, in connection with Capital Contributions by Additional Limited Partners and additional Capital Contributions by Partners pursuant to Article IV hereof;
(xxi) the selection and dismissal of Company Employees (including, without limitation, employees having titles or offices such as president, vice president, secretary and treasurer), and agents, outside attorneys, accountants, consultants and contractors of the Partnership or the General Partner, the determination of their compensation and other terms of employment or hiring and the delegation to any such Company Employee the authority to conduct the business of the Partnership in accordance with the terms of this Agreement;
(xxii) the distribution of cash to acquire Partnership Units held by a Limited Partner in connection with a Limited Partner’s exercise of its Redemption right under Section 8.06 hereof;
(xxiii) the amendment and restatement of Exhibit A hereto to reflect accurately at all times the Capital Contributions and Percentage Interests of the Partners as the same are adjusted from time to time to the extent necessary to reflect redemptions, Capital Contributions, the issuance of Partnership Units, the admission of any Additional Limited Partner or any Substituted Limited Partner or otherwise, which amendment and restatement, notwithstanding anything in this Agreement to the contrary, shall not be deemed an amendment to this Agreement, as long as the matter or event being reflected in Exhibit A hereto otherwise is authorized by this Agreement;
(xxiv) the determination regarding whether a payment to a Partner who exercises its Redemption Right under Section 8.06 that is assumed by the General Partner will be paid in the form of the Cash Amount or the REIT Shares Amount, except as such determination may be limited by Section 8.06;
(xxv) the collection and receipt of revenues and income of the Partnership;
(xxvi) the registration of any class of securities of the Partnership under the Securities Act or the Exchange Act, and the listing of any debt securities of the Partnership on any exchange;
(xxvii) an election to dissolve the Partnership pursuant to Section 13.01(b) hereof;
(xxviii) the taking of any action necessary or appropriate to enable the General Partner to qualify as a member REIT (so long as the General Partner desires to maintain its qualification as a REIT); and
(xxix) the taking of any action necessary or partnerappropriate to prevent the Partnership or the General Partner from being subject to regulation under the Investment Company Act.
(b) Notwithstanding any other provision of this Agreement, the Operating Company Agreement, the Delaware Act or any applicable law, rule or regulation, each Each of the Limited Partners and the Assignees and each other Person who may acquire an interest agrees that, except as provided in Partnership Securities hereby (i) approvesSection 7.03 hereof, ratifies and confirms the execution, delivery and performance by the parties thereto of the Operating Company Agreement, any other limited liability company or partnership agreement of any other Group Member, the Underwriting Agreement, the Omnibus Agreement, the Contribution Agreement and the other agreements described in or filed as exhibits to the Registration Statement that are related to the transactions contemplated by the Registration Statement; (ii) agrees that the General Partner (on its own or through any officer of the Partnership) is authorized to execute, deliver and perform the above-mentioned agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership without any further act, approval or vote of the Partners Partners, notwithstanding any other provision of this Agreement, the Act or any applicable law, rule or regulation.
(c) At all times from and after the Assignees or date hereof, the General Partner may cause the Partnership to establish and maintain working capital and other Persons who may acquire an interest reserves in Partnership Securities; and (iii) agrees that the execution, delivery or performance by such amounts as the General Partner, any Group Member or any Affiliate of any of themin its sole and absolute discretion, of this Agreement or any agreement authorized or permitted deems appropriate and reasonable from time to time.
(d) In exercising its authority under this Agreement Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner (including the exercise General Partner) of any action taken (or not taken) by it. Except as may be provided in a separate written agreement between the Partnership and the Limited Partners, the General Partner and the Partnership shall not have liability to a Limited Partner under any circumstances as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner or any Affiliate of the General Partner of the rights accorded pursuant to Article XV)its authority under this Agreement provided, shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons has acted in good faith and pursuant to its authority under this Agreement (or any other agreements) or of any duty stated or implied by law or equityAgreement.
Appears in 1 contract
Samples: Limited Partnership Agreement (Hannon Armstrong Sustainable Infrastructure Capital, Inc.)
Management. (a) The General Partner shall conduct, direct and manage all activities of the Partnership. A. Except as otherwise expressly provided in this Agreement, all management powers over the business and affairs of the Partnership are and shall be exclusively vested in the General Partner, and no Limited Partner or Assignee shall have any right to participate in or exercise control or management power over the business and affairs of the Partnership. The General Partner may not be removed by the Limited Partners with or without cause. In addition to the powers now or hereafter granted to a general partner of a limited partnership under applicable law or which are granted to the General Partner under any other provision of this Agreement, the General Partner, subject to Section 7.37.3 hereof, shall have full power and authority to do all things and on such terms as it, in its sole discretion, may deem deemed necessary or appropriate desirable by it to conduct the business of the Partnership, to exercise all powers set forth in Section 2.5 3.2 hereof and to effectuate the purposes set forth in Section 2.43.1 hereof, including the followingincluding, without limitation:
(i1) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money to permit the Partnership to make distributions to its Partners and Assignees in such amounts as will permit Life Storage, Inc. (so long as Life Storage, Inc. qualifies as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Section 4981 of the Code) and to make distributions to its Partners such that Life Storage, Inc. can distribute to its shareholders amounts sufficient to permit Life Storage, Inc. to maintain REIT status), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences evidence of indebtednessindebtedness (including the securing of the same by deed to secure Debt, including indebtedness that is convertible into Partnership Securitiesmortgage, deed of trust or other lien or encumbrance on the Partnership’s assets) and the incurring of any other obligationsobligations it deems necessary for the conduct of the activities of the Partnership;
(ii2) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership;
(iii3) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the Partnership (including the exercise or grant of any conversion, option, privilege, or subscription right or other right available in connection with any assets at any time held by the Partnership) or the merger or other combination of the Partnership with or into another Person entity (all of the matters described in this clause (iii) being subject, however, foregoing subject to any prior approval that may be only to the extent required by Section 7.37.3 hereof);
(iv4) the use of the assets of the Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms it sees fit, including including, without limitation, the financing of the conduct of the operations of Life Storage, Inc., the Partnership Group; subject to Section 7.6(a)or any of the Partnership’s Subsidiaries, the lending of funds to other Persons (including other Group Members)including, without limitation, the Subsidiaries of the Partnership, the General Partner and/or Life Storage, Inc.) and the repayment or guarantee of obligations of the Partnership Group and its Subsidiaries and any other Person in which it has an equity investment, and the making of capital contributions to any member of the Partnership GroupPartnership’s Subsidiaries;
(v5) the management, operation, leasing, landscaping, repair, alteration, demolition or improvement of any real property or improvements owned by the Partnership or any Subsidiary of the Partnership;
(6) the negotiation, execution execution, and performance of any contracts, conveyances or other instruments (including instruments that limit the liability of General Partner considers useful or necessary to the Partnership under contractual arrangements to all or particular assets conduct of the Partnership, with ’s operations or the other party to the contract to have no recourse against implementation of the General Partner or its assets Partner’s powers under this Agreement, including contracting with contractors, developers, consultants, accountants, legal counsel, other than its interest in professional advisors and other agents and the payment of their expenses and compensation out of the Partnership, even if same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case)’s assets;
(vi7) the distribution of Partnership cashcash or other Partnership assets in accordance with this Agreement;
(vii8) holding, managing, investing and reinvesting cash and other assets of the Partnership;
(9) the collection and receipt of revenues and income of the Partnership;
(10) the establishment of one or more divisions of the Partnership, the selection and dismissal of employees of the Partnership, any division of the Partnership, or the General Partner (including including, without limitation, employees having titles such as “president,” “vice president,” “secretary” and “treasurer”) ” of the Partnership, any division of the Partnership, or the General Partner), and agents, outside attorneys, accountants, consultants and contractors of the General Partner or the Partnership or any division of the Partnership, and the determination of their compensation and other terms of employment or hiring;
(viii11) the maintenance of such insurance for the benefit of the Partnership Group and Partnership, the Partners and/or Indemnitees as it deems necessary or appropriate;
(ix12) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies ventures or other relationships that it deems desirable (including including, without limitation, the acquisition of interests in, and the contributions of property to, the Partnership’s Subsidiaries and any Group Member other Person in which it has an equity investment from time to time) subject to the restrictions set forth in Section 2.4);
(x13) the control of any matters affecting the rights and obligations of the Partnership, including the bringing settlement, compromise, submission to arbitration or any other form of dispute resolution, or abandonment of, any claim, cause of action, liability, debt or damages, due or owing to or from the Partnership, the commencement or defense of suits, legal proceedings, administrative proceedings, arbitration or other forms of dispute, resolution, and defending the representation of actions at law the Partnership in all suits or in equity and otherwise engaging in the conduct legal proceedings, administrative proceedings, arbitrations or other forms of litigation and dispute resolution, the incurring of legal expense expense, and the settlement of claims and litigation;
(xi) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.8);
(xiii) unless restricted or prohibited by Section 5.7, the purchase, sale or other acquisition or disposition of Partnership Securities, or the issuance of additional options, rights, warrants and appreciation rights relating to Partnership Securities; and
(xiv14) the undertaking of any action in connection with the Partnership’s participation direct or indirect investment in its Subsidiaries or any Group Member other Person (including, without limitation, the contribution or loan of funds by the Partnership to such Persons);
(15) the determination of the fair market value of any Partnership property distributed in kind using such reasonable method of valuation as the General Partner may adopt;
(16) the exercise, directly or indirectly, through any attorney-in-fact acting under a member general or partnerlimited power of attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(17) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(18) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest pursuant to contractual or other arrangements with such Person;
(19) the making, execution and delivery of any and all deeds, leases, notes, deeds to secure Debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate in the judgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement; and
(20) the distribution of cash to acquire Common Partnership Units held by a Limited Partner in connection with a Limited Partner’s exercise of its Redemption Right under Section 8.6 or pursuant to any Partnership Unit Designation.
(b) Notwithstanding B. The Partnership is hereby authorized to execute, deliver and perform, and the General Partner on behalf of the Partnership is authorized to execute and deliver the above-mentioned agreements and transactions on behalf of the Partnership and all documents, agreements, certificates or financing statements contemplated thereby or related thereto, all without any further act, approval or vote of any Partner, notwithstanding any other provision of this AgreementAgreement (except as provided in Section 7.3), the Operating Company Agreement, the Delaware Act or any applicable law, rule or regulation, each of the Partners and the Assignees and each other Person who may acquire an interest in Partnership Securities hereby (i) approves, ratifies and confirms the execution, delivery and performance by the parties thereto of the Operating Company Agreement, any other limited liability company or partnership agreement of any other Group Member, the Underwriting Agreement, the Omnibus Agreement, the Contribution Agreement and the other agreements described in or filed as exhibits to the Registration Statement that are related to fullest extent permitted under the transactions contemplated by the Registration Statement; (ii) agrees that the General Partner (on its own Act or through any officer of the Partnership) is authorized to executeother applicable law, deliver and perform the agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in rule or contemplated by the Registration Statement on behalf of the Partnership without any further act, approval or vote of the Partners or the Assignees or the other Persons who may acquire an interest in Partnership Securities; and (iii) agrees that the regulation. The execution, delivery or performance by the General Partner, any Group Member Partner or any Affiliate the Partnership of any of them, of this Agreement or any agreement authorized or permitted under this Agreement (including the exercise by the General Partner or any Affiliate of the General Partner of the rights accorded pursuant to Article XV), shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement (or any other agreements) or of any duty stated or implied by law or equity.
C. The General Partner may cause the Partnership to obtain and maintain (i) casualty, liability and other insurance on the properties of the Partnership and (ii) liability insurance for the Indemnitees hereunder.
D. The General Partner may cause the Partnership to establish and maintain at any and all times working capital accounts and other cash or similar balances in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
E. In exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner of any action taken by it. The General Partner and the Partnership shall not have liability to a Limited Partner under any circumstances as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner pursuant to its authority under this Agreement.
Appears in 1 contract
Management. (a) The General Partner shall conduct, direct and manage all activities of the Partnership. Except as otherwise expressly provided in this Agreement, all management powers over the business and affairs of the Partnership are and shall be exclusively vested in the General Partner, and no Limited Partner or Assignee shall have any right to participate in or exercise control or management power over the business and affairs of the Partnership. The General Partner may not be removed by the Limited Partners, except with the consent of the General Partner. In addition to the powers now or hereafter granted to a general partner of a limited partnership under applicable law or which that are granted to the General Partner under any other provision of this Agreement, the General Partner, subject to the other provisions hereof including Section 7.37.03, shall have full power and authority to do all things and on such terms as it, in its sole discretion, may deem deemed necessary or appropriate desirable by it to conduct the business of the Partnership, to exercise all powers set forth in Section 2.5 3.02 hereof and to effectuate the purposes set forth in Section 2.43.01 hereof, including the followingincluding, without limitation:
(i) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money or selling assets to permit the Partnership to make distributions to its Partners in such amounts as will permit the General Partner (so long as the General Partner desires to maintain or restore its qualification as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Code Section 4981) and to make distributions to its stockholders sufficient to permit the General Partner to maintain or restore REIT qualification or otherwise to satisfy the REIT Requirements), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtednessindebtedness (including the securing of same by deed to secure debt, including indebtedness that is convertible into Partnership Securitiesmortgage, deed of trust or other lien or encumbrance on the Partnership’s assets) and the incurring of any other obligationsobligations that it deems necessary for the conduct of the activities of the Partnership;
(ii) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership, the registration of any class of securities of the Partnership under the Exchange Act and the listing of any debt securities of the Partnership on any exchange;
(iii) subject to Section 11.02 hereof, the acquisition, dispositionsale, mortgagelease, pledgetransfer, encumbranceexchange or other disposition of any, hypothecation all or exchange of any or substantially all of the assets of the Partnership (including, but not limited to, the exercise or grant of any conversion, option, privilege or subscription right or any other right available in connection with any assets at any time held by the Partnership) or the merger merger, consolidation, reorganization or other combination of the Partnership with or into another Person (the matters described in this clause (iii) being subject, however, to any prior approval that may be required by Section 7.3)entity;
(iv) the mortgage, pledge, encumbrance or hypothecation of any assets of the Partnership, the use of the assets of the Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms that it sees fit, including including, without limitation, the financing of the operations and activities of the General Partner, the Partnership or any of the Partnership’s Subsidiaries, the lending of funds to other Persons (including, without limitation, the Partnership’s Subsidiaries) and the repayment of obligations of the Partnership, its Subsidiaries and any other Person in which the Partnership has an equity investment, and the making of capital contributions to and equity investments in the Partnership’s Subsidiaries;
(v) the use of the assets of the Partnership (including, without limitation, cash on hand) for any purpose consistent with the terms of this Agreement and on any terms it sees fit, including, without limitation, the financing of the conduct of the operations of the General Partner, the Partnership Group; subject to Section 7.6(a)or any of the Partnership’s Subsidiaries, the lending of funds to other Persons (including other Group Members)including, without limitation, the General Partner and its Subsidiaries and the Partnership’s Subsidiaries) and the repayment or guarantee of obligations of the Partnership Group and its Subsidiaries and any other Person in which the Partnership has an equity investment and the making of capital contributions to its Subsidiaries;
(vi) the management, operation, leasing, landscaping, repair, alteration, demolition, replacement or improvement of any member Property, including, without limitation, any Contributed Property, or other asset of the Partnership Groupor any Subsidiary, whether pursuant to a Services Agreement or otherwise;
(vvii) the negotiation, execution and performance of any contracts, leases, conveyances or other instruments (including instruments that limit the liability of General Partner considers useful or necessary to the Partnership under contractual arrangements to all or particular assets conduct of the Partnership, with ’s operations or the other party to the contract to have no recourse against implementation of the General Partner or its assets Partner’s powers under this Agreement, including contracting with contractors, developers, consultants, accountants, legal counsel, other than its interest in professional advisors and other agents and the payment of their expenses and compensation out of the Partnership, even if same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case)’s assets;
(viviii) the distribution of Partnership cashcash or other Partnership assets in accordance with this Agreement, the holding, management, investment and reinvestment of cash and other assets of the Partnership and the collection and receipt of revenues, rents and income of the Partnership;
(vii) the selection and dismissal of employees (including employees having titles such as “president,” “vice president,” “secretary” and “treasurer”) and agents, outside attorneys, accountants, consultants and contractors and the determination of their compensation and other terms of employment or hiring;
(viiiix) the maintenance of such insurance for the benefit of the Partnership Group and the Partners as it the General Partner deems necessary or appropriate, including, without limitation, (i) casualty, liability and other insurance on the Properties and (ii) liability insurance for the Indemnitees hereunder;
(ixx) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies companies, joint ventures or other relationships that the General Partner deems desirable (including including, without limitation, the acquisition of interests in, and the contributions of property to, any Group Member Subsidiary and any other Person in which it has an equity investment from time to time); provided, however, that as long as the General Partner has determined to continue to qualify as a REIT, the General Partner may not engage in any such formation, acquisition or contribution that would cause it to fail to qualify as a REIT within the meaning of Code Section 856(a) subject (so long as the General Partner desires to the restrictions set forth in Section 2.4maintain its qualification as a REIT);
(xxi) the filing of applications, communicating and otherwise dealing with any and all governmental agencies having jurisdiction over, or in any way affecting, the Partnership’s assets or any other aspect of the Partnership business;
(xii) the control of any matters affecting the rights and obligations of the Partnership, including the bringing settlement, compromise, submission to arbitration or any other form of dispute resolution, or abandonment, of any claim, cause of action, liability, debt or damages, due or owing to or from the Partnership, the commencement or defense of suits, legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, and defending the representation of actions at law the Partnership in all suits or in equity and otherwise engaging in the conduct legal proceedings, administrative proceedings, arbitrations or other forms of litigation and dispute resolution, the incurring of legal expense expense, and the settlement of claims and litigation;
(xi) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.8);
(xiii) unless restricted or prohibited by Section 5.7, the purchase, sale or other acquisition or disposition of Partnership Securities, or the issuance of additional options, rights, warrants and appreciation rights relating to Partnership Securities; and
(xiv) the undertaking of any action in connection with the Partnership’s participation direct or indirect investment in any Group Member Subsidiary or any other Person (including, without limitation, the contribution or loan of funds by the Partnership to such Persons);
(xiv) except as otherwise specifically set forth in this Agreement, the determination of the fair market value of any Partnership property distributed in-kind using such reasonable method of valuation as it may adopt; provided, that such methods are otherwise consistent with the requirements of this Agreement;
(xv) the enforcement of any rights against any Partner pursuant to representations, warranties, covenants and indemnities relating to such Partner’s contribution of property or assets to the Partnership;
(xvi) the exercise, directly or indirectly, through any attorney-in-fact acting under a general or limited power-of-attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(xvii) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(xviii) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest, pursuant to contractual or other arrangements with such Person;
(xix) the making, execution and delivery of any and all deeds, leases, notes, deeds to secure Debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate in the judgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement;
(xx) the issuance of additional Partnership Units, as appropriate and in the General Partner’s sole and absolute discretion, in connection with Capital Contributions by Additional Limited Partners and additional Capital Contributions by Partners pursuant to Article IV hereof;
(xxi) the selection and dismissal of employees (including, without limitation, employees having titles or offices such as president, vice president, secretary and treasurer), and agents, outside attorneys, accountants, consultants and contractors of the Partnership or the General Partner, the determination of their compensation and other terms of employment or hiring and the delegation to any such employees the authority to conduct the business of the Partnership in accordance with the terms of this Agreement;
(xxii) the distribution of cash to acquire Partnership Units held by a Limited Partner in connection with a Limited Partner’s exercise of its Redemption right under Section 8.06 hereof;
(xxiii) the amendment and restatement of Exhibit A hereto to reflect accurately at all times the Capital Contributions and Percentage Interests of the Partners as the same are adjusted from time to time to the extent necessary to reflect redemptions, Capital Contributions, the issuance of Partnership Units, the admission of any Additional Limited Partner or any Substituted Limited Partner or otherwise, which amendment and restatement, notwithstanding anything in this Agreement to the contrary, shall not be deemed an amendment to this Agreement, as long as the matter or event being reflected in Exhibit A hereto otherwise is authorized by this Agreement;
(xxiv) the determination regarding whether a payment to a Partner who exercises its Redemption Right under Section 8.06 that is assumed by the General Partner will be paid in the form of the Cash Amount or the REIT Shares Amount, except as such determination may be limited by Section 8.06;
(xxv) the collection and receipt of revenues and income of the Partnership;
(xxvi) the registration of any class of securities of the Partnership under the Securities Act or the Exchange Act, and the listing of any debt securities of the Partnership on any exchange;
(xxvii) an election to dissolve the Partnership pursuant to Section 13.01(b) hereof; and
(xxviii) the taking of any action necessary or appropriate to enable the General Partner to qualify as a member or partnerREIT (so long as the General Partner desires to maintain its qualification as a REIT).
(b) Notwithstanding any other provision of this Agreement, the Operating Company Agreement, the Delaware Act or any applicable law, rule or regulation, each Each of the Limited Partners and the Assignees and each other Person who may acquire an interest agrees that, except as provided in Partnership Securities hereby (i) approvesSection 7.03 hereof, ratifies and confirms the execution, delivery and performance by the parties thereto of the Operating Company Agreement, any other limited liability company or partnership agreement of any other Group Member, the Underwriting Agreement, the Omnibus Agreement, the Contribution Agreement and the other agreements described in or filed as exhibits to the Registration Statement that are related to the transactions contemplated by the Registration Statement; (ii) agrees that the General Partner (on its own or through any officer of the Partnership) is authorized to execute, deliver and perform the above-mentioned agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership without any further act, approval or vote of the Partners Partners, notwithstanding any other provision of this Agreement, the Act or any applicable law, rule or regulation.
(c) At all times from and after the Assignees or date hereof, the General Partner may cause the Partnership to establish and maintain working capital and other Persons who may acquire an interest reserves in Partnership Securities; and (iii) agrees that the execution, delivery or performance by such amounts as the General Partner, any Group Member or any Affiliate of any of themin its sole and absolute discretion, of this Agreement or any agreement authorized or permitted deems appropriate and reasonable from time to time.
(d) In exercising its authority under this Agreement Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner (including the exercise General Partner) of any action taken (or not taken) by it. Except as may be provided in a separate written agreement between the Partnership and the Limited Partners, the General Partner and the Partnership shall not have liability to a Limited Partner under any circumstances as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner or any Affiliate of the General Partner of the rights accorded pursuant to Article XV)its authority under this Agreement provided, shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons has acted in good faith and pursuant to its authority under this Agreement (or any other agreements) or of any duty stated or implied by law or equityAgreement.
Appears in 1 contract
Samples: Limited Partnership Agreement (Sutherland Asset Management Corp)
Management. (a) The General Partner shall conduct, direct and manage all activities of the Partnership. A. Except as otherwise expressly provided in this Agreement, all management powers over the business and affairs of the Partnership are and shall be exclusively vested in the General Partner, and no Limited Partner or Assignee shall have any right to participate in or exercise control or management power over the business and affairs of the Partnership. The General Partner may not be removed by the Partners with or without cause, except with the consent of the General Partner. In addition to the powers now or hereafter granted to a general partner of a limited partnership under applicable law or which that are granted to the General Partner under any other provision of this Agreement, the General Partner, subject to the other provisions hereof including Section 7.3, shall have full power and authority to do all things and on such terms as it, in its sole discretion, may deem deemed necessary or appropriate desirable by it to conduct the business of the Partnership, to exercise all powers set forth in Section 2.5 3.2 hereof and to effectuate the purposes set forth in Section 2.43.1 hereof, including the followingincluding, without limitation:
(i1) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money or selling assets to permit the Partnership to make distributions to its Partners in such amounts as will permit the General Partner (so long as the General Partner desires to maintain or restore its status as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Code Section 4981) and to make distributions to its stockholders sufficient to permit the General Partner to maintain or restore REIT status or otherwise to satisfy the REIT Requirements), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtednessindebtedness (including the securing of same by deed to secure debt, including indebtedness that is convertible into Partnership Securitiesmortgage, deed of trust or other lien or encumbrance on the Partnership's assets) and the incurring of any other obligationsobligations that it deems necessary for the conduct of the activities of the Partnership;
(ii2) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership;
(iii3) the acquisition, dispositionsale, mortgagelease, pledgetransfer, encumbranceexchange or other disposition of any, hypothecation all or exchange of any or substantially all of the assets of the Partnership (including, but not limited to, the exercise or grant of any conversion, option, privilege or subscription right or any other right available in connection with any assets at any time held by the Partnership) or the merger merger, consolidation, reorganization or other combination of the Partnership with or into another Person (the matters described in this clause (iii) being subject, however, to any prior approval that may be required by Section 7.3)entity;
(iv4) the mortgage, pledge, encumbrance or hypothecation of any assets of the Partnership, the use of the assets of the Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms that it sees fit, including including, without limitation, the financing of the conduct operations and activities of the operations General Partner, the Partnership or any of the Partnership Group; subject to Section 7.6(a)Partnership's Subsidiaries, the lending of funds to other Persons (including other Group Members)including, without limitation, the Partnership's Subsidiaries) and the repayment or guarantee of obligations of the Partnership, its Subsidiaries and any other Person in which the Partnership Group has an equity investment, and the making of capital contributions to and equity investments in the Partnership's Subsidiaries;
(5) the management, operation, leasing, landscaping, repair, alteration, demolition, replacement or improvement of any member Property, including, without limitation, any Contributed Property, or other asset of the Partnership Groupor any Subsidiary, whether pursuant to a Services Agreement or otherwise;
(v6) the negotiation, execution and performance of any contracts, leases, conveyances or other instruments (including instruments that limit the liability General Partner considers useful or necessary to the conduct of the Partnership's operations or the implementation of the General Partner's powers under this Agreement, including contracting with contractors, developers, consultants, accountants, legal counsel, other professional advisors and other agents and the payment of their expenses and compensation out of the Partnership's assets;
(7) the distribution of Partnership under contractual arrangements to all cash or particular other Partnership assets in accordance with this Agreement, the holding, management, investment and reinvestment of cash and other assets of the Partnership, with and the other party to the contract to have no recourse against the General Partner or its assets other than its interest in collection and receipt of revenues, rents and income of the Partnership, even if same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case);
(vi) the distribution of Partnership cash;
(vii) the selection and dismissal of employees (including employees having titles such as “president,” “vice president,” “secretary” and “treasurer”) and agents, outside attorneys, accountants, consultants and contractors and the determination of their compensation and other terms of employment or hiring;
(viii) 8) the maintenance of such insurance for the benefit of the Partnership Group and the Partners as it deems necessary or appropriate, including, without limitation, (i) casualty, liability and other insurance on the Properties and (ii) liability insurance for the Indemnitees hereunder;
(ix9) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies companies, joint ventures or other relationships that it deems desirable (including including, without limitation, the acquisition of interests in, and the contributions of property to, any Group Member Subsidiary and any other Person in which it has an equity investment from time to time) subject ); provided, however, that, as long as the General Partner has determined to continue to qualify as a REIT, the restrictions set forth General Partner may not engage in any such formation, acquisition or contribution that would cause the General Partner to fail to qualify as a REIT within the meaning of Code Section 2.4856(a);
(x10) the control of any matters affecting the rights and obligations of the Partnership, including the bringing settlement, compromise, submission to arbitration or any other form of dispute resolution, or abandonment, of any claim, cause of action, liability, debt or damages, due or owing to or from the Partnership, the commencement or defense of suits, legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, and defending the representation of actions at law the Partnership in all suits or in equity and otherwise engaging in the conduct legal proceedings, administrative proceedings, arbitrations or other forms of litigation and dispute resolution, the incurring of legal expense expense, and the settlement of claims and litigation;
(xi) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.8);
(xiii) unless restricted or prohibited by Section 5.7, the purchase, sale or other acquisition or disposition of Partnership Securities, or the issuance of additional options, rights, warrants and appreciation rights relating to Partnership Securities; and
(xiv11) the undertaking of any action in connection with the Partnership’s participation 's direct or indirect investment in any Group Member as a member Subsidiary or partner.any other Person (including, without limitation, the contribution or loan of funds by the Partnership to such Persons);
(b12) Notwithstanding any other provision of except as otherwise specifically set forth in this Agreement, the Operating Company Agreement, the Delaware Act or any applicable law, rule or regulation, each determination of the Partners fair market value of any Partnership property distributed in kind using such reasonable method of valuation as it may adopt; provided that such methods are otherwise consistent with the requirements of this Agreement;
(13) the enforcement of any rights against any Partner pursuant to representa tions, warranties, covenants and indemnities relating to such Partner's contribution of property or assets to the Assignees and each other Person who may acquire an interest in Partnership Securities hereby Partnership;
(i14) approvesthe exercise, ratifies and confirms directly or indirectly, through any attorney-in-fact acting under a general or limited power of attorney, of any right, including the executionright to vote, delivery and performance appurtenant to any asset or investment held by the parties thereto Partnership;
(15) the exercise of any of the Operating Company Agreement, any other limited liability company or partnership agreement powers of any other Group Member, the Underwriting Agreement, the Omnibus Agreement, the Contribution Agreement and the other agreements described in or filed as exhibits to the Registration Statement that are related to the transactions contemplated by the Registration Statement; (ii) agrees that the General Partner (enumerated in this Agreement on its own behalf of or through in connection with any officer Subsidiary of the PartnershipPartnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(16) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest, pursuant to contractual or other arrangements with such Person;
(17) the making, execution and delivery of any and all deeds, leases, notes, deeds to secure debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate in the judgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement;
(18) the issuance of additional Partnership Units, as appropriate and in the General Partner's sole and absolute discretion, in connection with Capital Contributions by Additional Limited Partners and additional Capital Contributions by Partners pursuant to Article 4 hereof;
(19) the selection and dismissal of Company Employees (including, without limitation, employees having titles or offices such as president, vice president, secretary and treasurer), and agents, outside attorneys, accountants, consultants and contractors of the Partnership or the General Partner, the determination of their compensation and other terms of employment or hiring and the delegation to any such Company Employee the authority to conduct the business of the Partnership in accordance with the terms of this Agreement; and
(20) an election to dissolve the Partnership pursuant to Section 13.1.C hereof.
B. Each of the Limited Partners agrees that, except as provided in Section 7.3 hereof, the General Partner is authorized to execute, deliver and perform the above-mentioned agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership without any further act, approval or vote of the Partners Partners, notwithstanding any other provision of this Agreement, the Act or the Assignees any applicable law, rule or the other Persons who may acquire an interest in Partnership Securities; and (iii) agrees that the regulation. The execution, delivery or performance by the General Partner, any Group Member Partner or any Affiliate the Partnership of any of them, of this Agreement or any agreement authorized or permitted under this Agreement (including the exercise by the General Partner or any Affiliate of the General Partner of the rights accorded pursuant to Article XV), shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement (or any other agreements) or of any duty stated or implied by law or equity.
C. At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain working capital and other reserves in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
D. In exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner (including the General Partner) of any action taken by it. The General Partner and the Partnership shall not have liability to a Limited Partner under any circumstances as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner pursuant to its authority under this Agreement.
Appears in 1 contract
Samples: Agreement of Limited Partnership (Affordable Residential Communities Inc)
Management. (a) The General Partner shall conduct, direct and manage all activities of the Partnership. A. Except as otherwise expressly provided in this Agreement, all management powers over the business and affairs of the Partnership are and shall be exclusively vested in the General Partner, and no Limited Partner or Assignee shall have any right to participate in or exercise control or management power over the business and affairs of the Partnership. The General Partner may not be removed by the Limited Partners with or without cause, except with the consent of the General Partner. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or which are granted to the General Partner under any other provision of this Agreement, the General Partner, subject to the other provisions hereof including Section 7.37.3 and Section 11.2, shall have full power and authority to do all things and on such terms as it, in its sole discretion, may deem deemed necessary or appropriate desirable by it to conduct the business of the Partnership, to exercise all powers set forth in Section 2.5 3.2 and to effectuate the purposes set forth in Section 2.43.1 (subject to the proviso in Section 3.2), including the followingincluding, without limitation:
(i1) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money to permit the Partnership to make distributions to its Partners in such amounts as will permit the Company (so long as the Company has determined to qualify as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Section 4981 of the Code) and to make distributions to its stockholders sufficient to permit the Company to maintain REIT status), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtednessindebtedness (including the securing of same by deed, including indebtedness that is convertible into Partnership Securitiesmortgage, deed of trust or other lien or encumbrance on the Partnership’s assets) and the incurring of any other obligationsobligations it deems necessary for the conduct of the activities of the Partnership;
(ii2) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership, the registration of any class of securities of the Partnership under Exchange Act and the listing of any debt securities of the Partnership on any exchange;
(iii3) subject to Section 11.2, the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the Partnership (including the exercise or grant of any conversion, option, privilege, or subscription right or other right available in connection with any assets at any time held by the Partnership) or the merger or other combination of the Partnership with or into another Person entity on such terms as the General Partner deems proper (all of the matters described in this clause (iii) being subject, however, foregoing subject to any prior approval that may be only to the extent required by Section 7.3);
(iv4) the acquisition, disposition, mortgage, pledge, encumbrance or hypothecation of any or all of the assets of the Partnership, and the use of the assets of the Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms the General Partner deems proper, including including, without limitation, the financing of the conduct of the operations of the Company, the Partnership Group; subject to Section 7.6(a)or any Subsidiary of the Company and/or the Partnership, the lending of funds to other Persons (including other Group Members)including, without limitation, the Company or any Subsidiary of the Company and/or the Partnership) and the repayment or guarantee of obligations of the Partnership Group and its Subsidiaries and any other Person in which it has an equity investment, and the making of capital contributions to its Subsidiaries;
(5) the management, operation, leasing, landscaping, repair, alteration, demolition or improvement of any member real property or improvements owned by the Partnership or any Subsidiary of the Partnership Groupor any Person in which the Partnership has made a direct or indirect equity investment;
(v6) the negotiation, execution execution, and performance of any contracts, leases, conveyances or other instruments (including instruments that limit the liability of General Partner considers useful or necessary to the Partnership under contractual arrangements to all or particular assets conduct of the Partnership, with ’s operations or the other party to the contract to have no recourse against implementation of the General Partner or its assets Partner’s powers under this Agreement, including contracting with contractors, developers, consultants, accountants, legal counsel, other than its interest in professional advisors and other agents and the payment of their expenses and compensation out of the Partnership, even if same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case)’s assets;
(vi7) the distribution of Partnership cashcash or other Partnership assets in accordance with this Agreement;
(vii8) the holding, managing, investing and reinvesting of cash and other assets of the Partnership;
(9) the collection and receipt of revenues and income of the Partnership;
(10) the establishment of one or more divisions of the Partnership, the selection and dismissal of employees of the Partnership (including including, without limitation, employees having titles such as “president,” “vice president,” “secretary” and “treasurer”) ” of the Partnership), and agents, outside attorneys, accountants, consultants and contractors of the Partnership, and the determination of their compensation and other terms of employment or hiringhiring including waivers of conflicts of interest and the payment of their expenses and compensation out of the Partnership’s assets;
(viii11) the maintenance of such insurance for the benefit of the Partnership Group and Partnership, the Partners and directors and officers thereof as it deems necessary or appropriate;
(ix12) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies corporations or other relationships that it deems desirable (including including, without limitation, the acquisition of interests in, and the contributions of property to, any Group Member Subsidiary and any other Person in which it has an equity investment from time to time) subject ); provided, that, as long as the Company has determined to continue to qualify as a REIT, the restrictions set forth Partnership may not engage in Section 2.4any such formation, acquisition or contribution that would cause the Company to fail to qualify as a REIT;
(x13) the control of any matters affecting the rights and obligations of the Partnership, including the bringing settlement, compromise, submission to arbitration or any other form of dispute resolution, or abandonment of, any claim, cause of action, liability, debt or damages, due or owing to or from the Partnership, the commencement or defense of suits, legal proceedings, administrative proceedings, arbitration or other forms of dispute resolution, and defending the representation of actions at law the Partnership in all suits or in equity and otherwise engaging in the conduct legal proceedings, administrative proceedings, arbitrations or other forms of litigation and dispute resolution, the incurring of legal expense expense, and the settlement of claims and litigation;
(xi) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.8);
(xiii) unless restricted or prohibited by Section 5.7, the purchase, sale or other acquisition or disposition of Partnership Securities, or the issuance of additional options, rights, warrants and appreciation rights relating to Partnership Securities; and
(xiv14) the undertaking of any action in connection with the Partnership’s participation direct or indirect investment in any Group Member as a member Subsidiary or partner.any other Person (including, without limitation, the contribution or loan of funds by the Partnership to such Persons, incurring indebtedness on behalf of, or guarantying the obligations of, any such Persons);
(b15) Notwithstanding the determination of the fair market value of any Partnership property distributed in kind using such reasonable method of valuation as the General Partner may adopt;
(16) the exercise, directly or indirectly, through any attorney-in-fact acting under a general or limited power of attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(17) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other provision Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(18) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest pursuant to contractual or other arrangements with such Person;
(19) the making, execution and delivery of any and all deeds, leases, notes, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate, in the judgment of the General Partner, for the accomplishment of any of the powers of the General Partner enumerated in this Agreement;
(20) the maintenance of the Partnership’s books and records;
(21) the issuance of additional Partnership Units, as appropriate and in the General Partner’s sole and absolute discretion, in connection with capital contributions by Additional Limited Partners and additional capital contributions by Partners pursuant to Article 4 hereof;
(22) the distribution of cash to acquire Partnership Units held by a Limited Partner in connection with a Limited Partner’s exercise of its Redemption Right under Section 8.5 hereof;
(23) the amendment and restatement of Exhibit A hereto to reflect at all times the capital contributions and Percentage Interests of the Partners as the same are adjusted from time to time to the extent necessary to reflect redemptions, Capital Contributions, the issuance of Partnership Units, the admission of any Additional Limited Partner or Substituted Limited Partner or otherwise, which amendment and restatement, notwithstanding anything in this Agreement to the contrary, shall not be deemed an amendment to this Agreement, as long as the Operating Company matter or event being reflected in Exhibit A hereto otherwise is authorized by this Agreement, ;
(24) the Delaware Act taking of any and all acts and things necessary or any applicable law, rule or regulation, each prudent to ensure that the Partnership will not be classified as a “publicly traded partnership” for purposes of Section 7704 of the Partners Code, including but not limited to imposing restrictions on transfers and restrictions on redemptions; and
(25) to take such other action, execute, acknowledge, swear to or deliver such other documents and instruments, and perform any and all other acts that the Assignees General Partner deems necessary or appropriate for the formation, continuation and each other Person who may acquire an interest in conduct of the business and affairs of the Partnership Securities hereby (iincluding, without limitation, all actions consistent with allowing the Company at all times to qualify as a REIT unless the Company voluntarily terminates its REIT status) approves, ratifies and confirms to possess and enjoy all the execution, delivery rights and performance powers of a general partner as provided by the parties thereto Act.
B. Each of the Operating Company Agreement, any other limited liability company or partnership agreement of any other Group Member, the Underwriting Agreement, the Omnibus Agreement, the Contribution Agreement and the other agreements described in or filed as exhibits to the Registration Statement that are related to the transactions contemplated by the Registration Statement; (ii) Limited Partners agrees that the General Partner (on its own or through any officer of the Partnership) is authorized to execute, deliver and perform the above-mentioned agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership without any further act, approval or vote of the Partners Partners, notwithstanding any other provision of this Agreement (except as provided in Section 7.3), the Act or any applicable law, rule or regulation, to the Assignees fullest extent permitted under the Act or the other Persons who may acquire an interest in Partnership Securities; and (iii) agrees that the applicable law, rule or regulation. The execution, delivery or performance by the General Partner, any Group Member Partner or any Affiliate the Partnership of any of them, of this Agreement or any agreement authorized or permitted under this Agreement (including the exercise by the General Partner or any Affiliate of the General Partner of the rights accorded pursuant to Article XV), shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement (or any other agreements) or of any duty stated or implied by law or equity.
C. At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain working capital and other reserves in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
D. At all times from and after the date hereof, the General Partner may cause the Partnership to obtain and maintain (i) casualty, liability and other insurance on the properties of the Partnership, (ii) liability insurance for the Indemnities hereunder and (iii) such other insurance as the General Partner, in its sole and absolute discretion, determines to be necessary.
E. In exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner (including the General Partner) of any action taken (or not taken) by it. The General Partner and the Partnership shall not have liability to a Limited Partner under any circumstances as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner pursuant to its authority under this Agreement.
Appears in 1 contract
Samples: Limited Partnership Agreement (Cole Real Estate Income Strategy (Daily Nav), Inc.)
Management. (a) The General Partner shall conduct, direct and manage all activities of the Partnership. A. Except as otherwise expressly provided in this Agreement, all management powers over the business and affairs of the Partnership are and shall be exclusively vested in the General Partner, and no Limited Partner or Assignee shall have any right to participate in or exercise control or management power over the business and affairs of the Partnership. The General Partner may not be removed by the Partners with or without cause, except with the Consent of the General Partner. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law the Act or which that are granted to the General Partner under any other provision of this Agreement, the General Partner, subject to the other provisions hereof including Section 7.3, shall have full power and authority to do all things and on such terms as it, in its sole discretion, may deem deemed necessary or appropriate desirable by it to conduct the business of the Partnership, to exercise all powers set forth in Section 2.5 3.2 hereof and to effectuate the purposes set forth in Section 2.43.1 hereof, including the followingincluding, without limitation:
(i1) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money or selling assets to permit the Partnership to make distributions to its Partners in such amounts as will permit the General Partner (so long as the General Partner qualifies as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Code Section 4981) and to make distributions to its shareholders sufficient to permit the General Partner to maintain REIT status or otherwise to satisfy the REIT Requirements), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtednessindebtedness (including the securing of same by deed to secure debt, including indebtedness that is convertible into Partnership Securitiesmortgage, deed of trust or other lien or encumbrance on the Partnership's assets) and the incurring of any other obligationsobligations that it deems necessary for the conduct of the activities of the Partnership;
(ii2) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership;
(iii3) the acquisition, dispositionsale, mortgagetransfer, pledgeexchange or other disposition of any, encumbrance, hypothecation all or exchange of any or substantially all of the assets of the Partnership (including, but not limited to, the exercise or grant of any conversion, option, privilege or subscription right or any other right available in connection with any assets at any time held by the Partnership) or the merger merger, consolidation, reorganization or other combination of the Partnership with or into another Person (the matters described in this clause (iii) being subject, however, to any prior approval that may be required by Section 7.3)entity;
(iv4) the mortgage, pledge, encumbrance or hypothecation of any assets of the Partnership, the use of the assets of the Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms that it sees fit, including including, without limitation, the financing of the conduct operations and activities of the operations General Partner, the Partnership or any of the Partnership Group; subject to Section 7.6(a)Partnership's Subsidiaries, the lending of funds to other Persons (including other Group Members)including, without limitation, the Partnership's Subsidiaries) and the repayment or guarantee of obligations of the Partnership, its Subsidiaries and any other Person in which the Partnership Group has an equity investment, and the making of capital contributions to and equity investments in the Partnership's Subsidiaries;
(5) the management, operation, leasing, landscaping, repair, alteration, demolition, replacement or improvement of any member Property, including, without limitation, any Contributed Property, or other asset of the Partnership Groupor any Subsidiary, whether pursuant to the Management Agreement or otherwise;
(v6) the negotiation, execution and performance of any contracts, leases, conveyances or other instruments (including instruments that limit the liability General Partner considers useful or necessary to the conduct of the Partnership's operations or the implementation of the General Partner's powers under this Agreement, including contracting with contractors, developers, consultants, accountants, legal counsel, other professional advisors and other agents (including, without limitation, the Manager) and the payment of their expenses and compensation out of the Partnership's assets;
(7) the distribution of Partnership under contractual arrangements to all cash or particular other Partnership assets in accordance with this Agreement, the holding, management, investment and reinvestment of cash and other assets of the Partnership, with and the other party to the contract to have no recourse against the General Partner or its assets other than its interest in collection and receipt of revenues, rents and income of the Partnership, even if same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case);
(vi) the distribution of Partnership cash;
(vii) the selection and dismissal of employees (including employees having titles such as “president,” “vice president,” “secretary” and “treasurer”) and agents, outside attorneys, accountants, consultants and contractors and the determination of their compensation and other terms of employment or hiring;
(viii) 8) the maintenance of such insurance for the benefit of the Partnership Group and the Partners as it deems necessary or appropriate, including, without limitation, (i) casualty, liability and other insurance on the Properties of the Partnership and (ii) liability insurance for the Indemnitees hereunder;
(ix9) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies companies, joint ventures or other relationships that it deems desirable (including including, without limitation, the acquisition of interests in, and the contributions of property to, any Group Member Subsidiary and any other Person in which it has an equity investment from time to time) subject ); provided, however, that, as long as the General Partner has determined to continue to qualify as a REIT, the restrictions set forth General Partner may not engage in any such formation, acquisition or contribution that would cause the General Partner to fail to qualify as a REIT within the meaning of Code Section 2.4856(a);
(x10) the control of any matters affecting the rights and obligations of the Partnership, including the bringing settlement, compromise, submission to arbitration or any other form of dispute resolution, or abandonment, of any claim, cause of action, liability, debt or damages, due or owing to or from the Partnership, the commencement or defense of suits, legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, and defending the representation of actions at law the Partnership in all suits or in equity and otherwise engaging in the conduct legal proceedings, administrative proceedings, arbitrations or other forms of litigation and dispute resolution, the incurring of legal expense expense, and the settlement of claims and litigation;
(xi) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.8);
(xiii) unless restricted or prohibited by Section 5.7, the purchase, sale or other acquisition or disposition of Partnership Securities, or the issuance of additional options, rights, warrants and appreciation rights relating to Partnership Securities; and
(xiv11) the undertaking of any action in connection with the Partnership’s participation 's direct or indirect investment in any Group Member as a member Subsidiary or partner.any other Person (including, without limitation, the contribution or loan of funds by the Partnership to such Persons);
(b12) Notwithstanding any other provision of except as otherwise specifically set forth in this Agreement, the Operating Company Agreement, the Delaware Act or any applicable law, rule or regulation, each determination of the Partners fair market value of any Partnership property distributed in kind using such reasonable method of valuation as it may adopt; provided that such methods are otherwise consistent with the requirements of this Agreement;
(13) the enforcement of any rights against any Partner pursuant to representations, warranties, covenants and indemnities relating to such Partner's contribution of property or assets to the Assignees and each other Person who may acquire an interest in Partnership Securities hereby Partnership;
(i14) approvesthe exercise, ratifies and confirms directly or indirectly, through any attorney-in-fact acting under a general or limited power of attorney, of any right, including the executionright to vote, delivery and performance appurtenant to any asset or investment held by the parties thereto Partnership;
(15) the exercise of any of the Operating Company Agreement, any other limited liability company or partnership agreement powers of any other Group Member, the Underwriting Agreement, the Omnibus Agreement, the Contribution Agreement and the other agreements described in or filed as exhibits to the Registration Statement that are related to the transactions contemplated by the Registration Statement; (ii) agrees that the General Partner (enumerated in this Agreement on its own behalf of or through in connection with any officer Subsidiary of the PartnershipPartnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(16) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest, pursuant to contractual or other arrangements with such Person;
(17) the making, execution and delivery of any and all deeds, leases, notes, deeds to secure debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate in the judgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement;
(18) the issuance of additional Partnership Units, as appropriate and in the General Partner's sole and absolute discretion, in connection with Capital Contributions by Additional Limited Partners and additional Capital Contributions by Partners pursuant to Article 4 hereof; and
(19) an election to dissolve the Partnership pursuant to Section 13.1.C hereof.
B. Each of the Limited Partners agrees that, except as provided in Section 7.3 hereof, the General Partner is authorized to execute, deliver and perform the above-mentioned agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership without any further act, approval or vote of the Partners Partners, notwithstanding any other provision of this Agreement, the Act or the Assignees any applicable law, rule or the other Persons who may acquire an interest in Partnership Securities; and (iii) agrees that the regulation. The execution, delivery or performance by the General Partner, any Group Member Partner or any Affiliate the Partnership of any of them, of this Agreement or any agreement authorized or permitted under this Agreement (including the exercise by the General Partner or any Affiliate of the General Partner of the rights accorded pursuant to Article XV), shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement (or any other agreements) or of any duty stated or implied by law or equity.
C. At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain working capital and other reserves in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
D. In exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner (including the General Partner and the Special Limited Partner) of any action taken by it. The General Partner and the Partnership shall not have liability to a Limited Partner under any circumstances as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner pursuant to its authority under this Agreement.
Appears in 1 contract
Samples: Agreement of Limited Partnership (Newcastle Investment Corp)
Management. (a) The General Partner shall conduct, direct and manage all activities of the PartnershipCompany. Except as otherwise expressly provided in this Agreement, all management powers over the business and affairs of the Partnership Company shall be exclusively vested in the General Partner, and no Limited Partner or Assignee shall have any management power over the business and affairs of the PartnershipCompany. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or which that are granted to the General Partner under any other provision of this Agreement, the General Partner, subject to Section 7.3, Partner shall have full power and authority to do all things and on such terms as itit determines, in its sole discretion, may deem necessary to be necessary, appropriate, proper, advisable or appropriate to conduct incidental to, or in furtherance of, conducting the business of the PartnershipCompany, to exercise exercising all powers set forth in Section 2.5 and to effectuate effectuating the purposes set forth in Section 2.4, including the following:
(i) the making of any expenditures, the lending or borrowing of money, the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtedness, including indebtedness that is convertible or exchangeable into Partnership Company Securities or options, rights, warrants or appreciation rights relating to Company Securities, and the incurring of any other obligations;
(ii) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the PartnershipCompany;
(iii) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the Partnership Company or the merger or other combination of the Partnership Company with or into another Person (the matters described in this clause (iii) being subject, however, to any prior approval that may be required by Section 7.3Article XIV and Article XVI);
(iv) the use of the assets of the Partnership Company (including cash on hand) for any purpose consistent with the terms of this Agreement, including the financing of the conduct of the operations of the Partnership Company Group; subject to Section 7.6(a), the lending of funds to other Persons (including other Group Members), Persons; the repayment or guarantee of obligations of the Partnership any Group Member or other Person and the making of capital contributions to any member of the Partnership GroupGroup Member or other Person;
(v) the negotiation, execution and performance of any contracts, conveyances or other instruments (including instruments that limit the liability of the Partnership Company under contractual arrangements to all or particular assets of the PartnershipCompany, with the other party to the contract to have no recourse against the General Partner or its assets other than its their interest in the PartnershipCompany, even if same results in the terms of the transaction being less favorable to the Partnership Company than would otherwise be the case);
(vi) subject to Article XVI, the distribution of Partnership Company cash;
(vii) the selection and dismissal of employees (including employees having such titles such as “president,” “vice president,” “secretary” and “treasurer”the General Partner may determine in its sole discretion) and agents, representatives, outside attorneys, accountants, consultants and contractors and the determination of their compensation and other terms of employment or hiring;
(viii) the maintenance of such insurance for the benefit of the Partnership Group and Company Group, the Partners as it deems necessary or appropriateand Indemnitees;
(ix) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies companies, corporations or other entities or relationships (including the acquisition of interests in, and the contributions of property to, any Group Member the Company’s Subsidiaries from time to time) ), subject to the restrictions set forth in Section 2.4;
(x) the control of any matters affecting the rights and obligations of the PartnershipCompany, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigation litigation, arbitration or mediation and the incurring of legal expense and the settlement of claims and litigation;
(xi) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.84.7);
(xiii) unless restricted or prohibited by Section 5.7subject to Article XVI, the purchase, sale or other acquisition or disposition of Partnership Securities, Company Securities or the issuance of additional options, rights, warrants and or appreciation rights relating to Partnership Company Securities; and;
(xiv) the undertaking of any action in connection with the PartnershipCompany’s participation in the management of the Company Group through its directors, officers or employees or the Company’s direct or indirect ownership of the Group Members, including all things described in or contemplated by the Registration Statement and the agreements described in or filed as exhibits to the Registration Statement; and
(xv) the registration for resale under the Securities Act and applicable state or non-U.S. securities laws of any Group Member as a member securities of, or partnerany securities convertible or exchangeable into securities of, the Company held by any Person, including the General Partner or any Affiliate of the General Partner.
(b) In exercising its authority under this Agreement, the General Partner may, but shall be under no obligation or duty to, take into account the tax consequences to any Partner (including the General Partner) of any action taken (or not taken) by it. The General Partner and the Company shall not have any liability to a Limited Partner for monetary damages, equitable relief or otherwise for losses sustained, liabilities incurred or benefits not derived by such Limited Partner in connection with such decisions.
(c) Notwithstanding any other provision of this Agreement, the Operating Company Agreement, the Delaware Limited Partnership Act or any applicable law, rule or regulation, each of the Partners and the Assignees and each other Person who may acquire an interest in Partnership Company Securities hereby (i) approves, ratifies and confirms the execution, delivery and performance by the parties thereto of the Operating Company Agreement, any other limited liability company or partnership agreement of any other Group Member, the Underwriting Exchange Agreement, the Omnibus Tax Receivable Agreement, the Contribution Agreement Investor Rights Agreement, the Ares Operating Group Governing Agreements and the other agreements described in or filed as exhibits to the Registration Statement that are related to the transactions contemplated by the Registration Statement; (ii) agrees that the General Partner (on its own or through its delegation of such authority to any officer of the PartnershipCompany) is authorized to execute, deliver and perform the agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership Company, in each case in such form and with such terms as it in its sole discretion shall determine, without any further act, approval or vote of the Partners or the Assignees or the other Persons who may acquire an interest in Partnership Company Securities; and (iii) agrees that the execution, delivery or performance by the General Partner, any Group Member or any Affiliate of any of them, of this Agreement or any agreement authorized or permitted under this Agreement (including the exercise by the General Partner or any Affiliate of the General Partner of the rights accorded pursuant to Article XV), shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership Company or the Limited Partners or any other Persons under this Agreement (or any other agreements) or of any duty stated (fiduciary or implied by law otherwise) existing at law, in equity or equityotherwise.
Appears in 1 contract
Management. (a) The General Partner shall conduct, direct and manage all activities of the Partnership. A. Except as otherwise expressly provided in this Agreement, all management powers over the business and affairs of the Partnership are and shall be exclusively vested in the General Partner, and no Limited Partner or Assignee shall have any right to participate in or exercise control or management power over the business and affairs of the Partnership. The General Partner may not be removed by the Partners with or without cause, except with the Consent of the General Partner. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or which that are granted to the General Partner under any other provision of this Agreement, the General Partner, subject to the other provisions hereof including Section 7.3, shall have full power and authority to do all things and on such terms as it, in its sole discretion, may deem deemed necessary or appropriate desirable by it to conduct the business of the Partnership, to exercise all powers set forth in Section 2.5 3.2 hereof and to effectuate the purposes set forth in Section 2.43.1 hereof, including the followingincluding, without limitation:
(i1) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money or selling assets to permit the Partnership to make distributions to its Partners in such amounts as will permit the General Partner (so long as the General Partner qualifies as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Code Section 4981) and to make distributions to its shareholders sufficient to permit the General Partner to maintain REIT status or otherwise to satisfy the REIT Requirements), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtednessindebtedness (including the securing of same by deed to secure debt, including indebtedness that is convertible into Partnership Securitiesmortgage, deed of trust or other lien or encumbrance on the Partnership's assets) and the incurring of any other obligationsobligations that it deems necessary for the conduct of the activities of the Partnership;
(ii2) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership;
(iii3) the acquisition, dispositionsale, mortgagetransfer, pledgeexchange or other disposition of any, encumbrance, hypothecation all or exchange of any or substantially all of the assets of the Partnership (including, but not limited to, the exercise or grant of any conversion, option, privilege or subscription right or any other right available in connection with any assets at any time held by the Partnership) or the merger merger, consolidation, reorganization or other combination of the Partnership with or into another Person (the matters described in this clause (iii) being subject, however, to any prior approval that may be required by Section 7.3)entity;
(iv4) the mortgage, pledge, encumbrance or hypothecation of any assets of the Partnership, the use of the assets of the Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms that it sees fit, including including, without limitation, the financing of the conduct operations and activities of the operations General Partner, the Partnership or any of the Partnership Group; subject to Section 7.6(a)Partnership's Subsidiaries, the lending of funds to other Persons (including other Group Members)including, without limitation, the Partnership's Subsidiaries) and the repayment or guarantee of obligations of the Partnership, its Subsidiaries and any other Person in which the Partnership Group has an equity investment, and the making of capital contributions to and equity investments in the Partnership's Subsidiaries;
(5) the management, operation, leasing, landscaping, repair, alteration, demolition, replacement or improvement of any member Property, including, without limitation, any Contributed Property, or other asset of the Partnership Groupor any Subsidiary, whether pursuant to a Management Agreement or otherwise;
(v6) the negotiation, execution and performance of any contracts, leases, conveyances or other instruments (including instruments that limit the liability General Partner considers useful or necessary to the conduct of the Partnership's operations or the implementation of the General Partner's powers under this Agreement, including contracting with contractors, developers, consultants, accountants, legal counsel, other professional advisors and other agents (including, without limitation, the Manager) and the payment of their expenses and compensation out of the Partnership's assets;
(7) the distribution of Partnership under contractual arrangements to all cash or particular other Partnership assets in accordance with this Agreement, the holding, management, investment and reinvestment of cash and other assets of the Partnership, with and the other party to the contract to have no recourse against the General Partner or its assets other than its interest in collection and receipt of revenues, rents and income of the Partnership, even if same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case);
(vi) the distribution of Partnership cash;
(vii) the selection and dismissal of employees (including employees having titles such as “president,” “vice president,” “secretary” and “treasurer”) and agents, outside attorneys, accountants, consultants and contractors and the determination of their compensation and other terms of employment or hiring;
(viii) 8) the maintenance of such insurance for the benefit of the Partnership Group and the Partners as it deems necessary or appropriate, including, without limitation, (i) casualty, liability and other insurance on the Properties of the Partnership and (ii) liability insurance for the Indemnitees hereunder;
(ix9) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies companies, joint ventures or other relationships that it deems desirable (including including, without limitation, the acquisition of interests in, and the contributions of property to, any Group Member Subsidiary and any other Person in which it has an equity investment from time to time) subject ); provided, however, that, as long as the General Partner has determined to continue to qualify as a REIT, the restrictions set forth General Partner may not engage in any such formation, acquisition or contribution that would cause the General Partner to fail to qualify as a REIT within the meaning of Code Section 2.4856(a);
(x10) the control of any matters affecting the rights and obligations of the Partnership, including the bringing settlement, compromise, submission to arbitration or any other form of dispute resolution, or abandonment, of any claim, cause of action, liability, debt or damages, due or owing to or from the Partnership, the commencement or defense of suits, legal proceedings, admin istrative proceedings, arbitrations or other forms of dispute resolution, and defending the representation of actions at law the Partnership in all suits or in equity and otherwise engaging in the conduct legal proceedings, administrative proceedings, arbitrations or other forms of litigation and dispute resolution, the incurring of legal expense expense, and the settlement of claims and litigation;
(xi) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.8);
(xiii) unless restricted or prohibited by Section 5.7, the purchase, sale or other acquisition or disposition of Partnership Securities, or the issuance of additional options, rights, warrants and appreciation rights relating to Partnership Securities; and
(xiv11) the undertaking of any action in connection with the Partnership’s participation 's direct or indirect investment in any Group Member as a member Subsidiary or partner.any other Person (including, without limitation, the contribution or loan of funds by the Partnership to such Persons);
(b12) Notwithstanding any other provision of except as otherwise specifically set forth in this Agreement, the Operating Company Agreement, the Delaware Act or any applicable law, rule or regulation, each determination of the Partners fair market value of any Partnership property distributed in kind using such reasonable method of valuation as it may adopt; provided that such methods are otherwise consistent with the requirements of this Agreement;
(13) the enforcement of any rights against any Partner pursuant to represen tations, warranties, covenants and indemnities relating to such Partner's contribution of property or assets to the Assignees and each other Person who may acquire an interest in Partnership Securities hereby Partnership;
(i14) approvesthe exercise, ratifies and confirms directly or indirectly, through any attorney-in-fact acting under a general or limited power of attorney, of any right, including the executionright to vote, delivery and performance appurtenant to any asset or investment held by the parties thereto Partnership;
(15) the exercise of any of the Operating Company Agreement, any other limited liability company or partnership agreement powers of any other Group Member, the Underwriting Agreement, the Omnibus Agreement, the Contribution Agreement and the other agreements described in or filed as exhibits to the Registration Statement that are related to the transactions contemplated by the Registration Statement; (ii) agrees that the General Partner (enumerated in this Agreement on its own behalf of or through in connection with any officer Subsidiary of the PartnershipPartnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(16) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest, pursuant to contractual or other arrangements with such Person;
(17) the making, execution and delivery of any and all deeds, leases, notes, deeds to secure debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate in the judgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement;
(18) the issuance of additional Partnership Units, as appropriate and in the General Partner's sole and absolute discretion, in connection with Capital Contributions by Additional Limited Partners and additional Capital Contributions by Partners pursuant to Article 4 hereof; and
(19) an election to dissolve the Partnership pursuant to Section 13.1.C hereof.
B. Each of the Limited Partners agrees that, except as provided in Section 7.3 hereof, the General Partner is authorized to execute, deliver and perform the above-mentioned agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership without any further act, approval or vote of the Partners Partners, notwithstanding any other provision of this Agreement, the Act or the Assignees any applicable law, rule or the other Persons who may acquire an interest in Partnership Securities; and (iii) agrees that the regulation. The execution, delivery or performance by the General Partner, any Group Member Partner or any Affiliate the Partnership of any of them, of this Agreement or any agreement authorized or permitted under this Agreement (including the exercise by the General Partner or any Affiliate of the General Partner of the rights accorded pursuant to Article XV), shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement (or any other agreements) or of any duty stated or implied by law or equity.
C. At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain working capital and other reserves in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
D. In exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner (including the General Partner and the Special Limited Partner) of any action taken by it. The General Partner and the Partnership shall not have liability to a Limited Partner under any circumstances as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner pursuant to its authority under this Agreement.
E. Within a reasonable time prior to an anticipated acquisition by the General Partner, on behalf of the Partnership, of assets of a type which would qualify as "stock or securities" under and as such term is defined in Section 351(e) of the Code, the General Partner shall give notice thereof to the DCI Limited Partners, which notice shall set forth, in reasonable detail based on relevant information reasonably available at the time such notice is given, a description of such assets and the percentage that such assets will represent of all of the assets of the Partnership immediately following such acquisition.
Appears in 1 contract
Samples: Limited Partnership Agreement (Northstar Capital Investment Corp /Md/)
Management. (a) The General Partner shall conduct, direct and manage all activities of the Partnership. Except as otherwise expressly provided in this Agreement, all management powers over the business and affairs of the Partnership are and shall be exclusively vested in the General Partner, and no Limited Partner or Assignee shall have any right to participate in or exercise control or management power over the business and affairs of the Partnership. The General Partner may not be removed by the Partners with or without cause, except with the Consent of the General Partner. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or which that are granted to the General Partner under any other provision of this Agreement, the General Partner, subject to the other provisions hereof including Section 7.3, shall have full power and authority to do all things and on such terms as it, in its sole discretion, may deem deemed necessary or appropriate desirable by it to conduct the business of the Partnership, to exercise all powers set forth in Section 2.5 3.2 hereof and to effectuate the purposes set forth in Section 2.43.1 hereof, including the followingincluding, without limitation:
(i) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money or selling assets to permit the Partnership to make distributions to its Partners in such amounts as will permit the General Partner (so long as the General Partner qualifies as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Code Section 4981) and to make distributions to its shareholders sufficient to permit the General Partner to maintain REIT status or otherwise to satisfy the REIT Requirements), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtednessindebtedness (including the securing of same by deed to secure debt, including indebtedness that is convertible into Partnership Securitiesmortgage, deed of trust or other lien or encumbrance on the Partnership's assets) and the incurring of any other obligationsobligations that it deems necessary for the conduct of the activities of the Partnership;
(ii) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership;
(iii) the acquisition, dispositionsale, mortgagetransfer, pledgeexchange or other disposition of any, encumbrance, hypothecation all or exchange of any or substantially all of the assets of the Partnership (including, but not limited to, the exercise or grant of any conversion, option, privilege or subscription right or any other right available in connection with any assets at any time held by the Partnership) or the merger merger, consolidation, reorganization or other combination of the Partnership with or into another Person (the matters described in this clause (iii) being subject, however, to any prior approval that may be required by Section 7.3)entity;
(iv) the mortgage, pledge, encumbrance or hypothecation of any assets of the Partnership, the use of the assets of the Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms that it sees fit, including including, without limitation, the financing of the conduct operations and activities of the operations General Partner, the Partnership or any of the Partnership Group; subject to Section 7.6(a)Partnership's Subsidiaries, the lending of funds to other Persons (including other Group Members)including, without limitation, the Partnership's Subsidiaries) and the repayment or guarantee of obligations of the Partnership, its Subsidiaries and any other Person in which the Partnership Group has an equity investment, and the making of capital contributions to any member of and equity investments in the Partnership GroupPartnership's Subsidiaries;
(v) the management, operation, leasing, landscaping, repair, alteration, demolition, replacement or improvement of any Property, including, without limitation, any Contributed Property, or other asset of the Partnership or any Subsidiary;
(vi) the negotiation, execution and performance of any contracts, leases, conveyances or other instruments (including instruments that limit the liability of General Partner considers useful or necessary to the Partnership under contractual arrangements to all or particular assets conduct of the Partnership, with 's operations or the other party to the contract to have no recourse against implementation of the General Partner or its assets Partner's powers under this Agreement, including contracting with contractors, developers, consultants, accountants, legal counsel, other than its interest in professional advisors and other agents and the payment of their expenses and compensation out of the Partnership, even if same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case);
(vi) the distribution of Partnership cash's assets;
(vii) the selection distribution of Partnership cash or other Partnership assets in accordance with this Agreement, the holding, management, investment and dismissal reinvestment of employees (including employees having titles such as “president,” “vice president,” “secretary” cash and “treasurer”) and agentsother assets of the Partnership, outside attorneys, accountants, consultants and contractors and the determination collection and receipt of their compensation revenues, rents and other terms income of employment or hiringthe Partnership;
(viii) the maintenance of such insurance for the benefit of the Partnership Group and the Partners as it deems necessary or appropriate, including, without limitation, (i) casualty, liability and other insurance on the Properties of the Partnership and (ii) liability insurance for the Indemnitees hereunder;
(ix) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies companies, joint ventures or other relationships that it deems desirable (including including, without limitation, the acquisition of interests in, and the contributions of property to, any Group Member Subsidiary and any other Person in which it has an equity investment from time to time) subject ); provided, however, that, as long as the General Partner has determined to continue to qualify as a REIT, the restrictions set forth General Partner may not engage in any such formation, acquisition or contribution that would cause the General Partner to fail to qualify as a REIT within the meaning of Code Section 2.4856(a);
(x) the control of any matters affecting the rights and obligations of the Partnership, including the bringing settlement, compromise, submission to arbitration or any other form of dispute resolution, or abandonment, of any claim, cause of action, liability, debt or damages, due or owing to or from the Partnership, the commencement or defense of suits, legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, and defending the representation of actions at law the Partnership in all suits or in equity and otherwise engaging in the conduct legal proceedings, administrative proceedings, arbitrations or other forms of litigation and dispute resolution, the incurring of legal expense expense, and the settlement of claims and litigation;
(xi) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.8);
(xiii) unless restricted or prohibited by Section 5.7, the purchase, sale or other acquisition or disposition of Partnership Securities, or the issuance of additional options, rights, warrants and appreciation rights relating to Partnership Securities; and
(xivxi) the undertaking of any action in connection with the Partnership’s participation 's direct or indirect investment in any Group Member Subsidiary or any other Person (including, without limitation, the contribution or loan of funds by the Partnership to such Persons);
(xii) except as otherwise specifically set forth in this Agreement, the determination of the fair market value of any Partnership property distributed in kind using such reasonable method of valuation as it may adopt; provided that such methods are otherwise consistent with the requirements of this Agreement;
(xiii) the enforcement of any rights against any Partner pursuant to representations, warranties, covenants and indemnities relating to such Partner's contribution of property or assets to the Partnership;
(xiv) the exercise, directly or indirectly, through any attorney-in- fact acting under a member general or partnerlimited power of attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(xv) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(xvi) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest, pursuant to contractual or other arrangements with such Person;
(xvii) the making, execution and delivery of any and all deeds, leases, notes, deeds to secure debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate in the judgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement;
(xviii) the issuance of additional Partnership Units, as appropriate and in the General Partner's sole and absolute discretion, in connection with Capital Contributions by Additional Limited Partners and additional Capital Contributions by Partners pursuant to Article 4 hereof; and
(xix) an election to dissolve the Partnership pursuant to Section 13.1(c) hereof.
(b) Notwithstanding any other provision of this Agreement, the Operating Company Agreement, the Delaware Act or any applicable law, rule or regulation, each Each of the Limited Partners and the Assignees and each other Person who may acquire an interest agrees that, except as provided in Partnership Securities hereby (i) approvesSection 7.3 hereof, ratifies and confirms the execution, delivery and performance by the parties thereto of the Operating Company Agreement, any other limited liability company or partnership agreement of any other Group Member, the Underwriting Agreement, the Omnibus Agreement, the Contribution Agreement and the other agreements described in or filed as exhibits to the Registration Statement that are related to the transactions contemplated by the Registration Statement; (ii) agrees that the General Partner (on its own or through any officer of the Partnership) is authorized to execute, deliver and perform the above-mentioned agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership without any further act, approval or vote of the Partners Partners, notwithstanding any other provision of this Agreement, the Act or the Assignees any applicable law, rule or the other Persons who may acquire an interest in Partnership Securities; and (iii) agrees that the regulation. The execution, delivery or performance by the General Partner, any Group Member Partner or any Affiliate the Partnership of any of them, of this Agreement or any agreement authorized or permitted under this Agreement (including the exercise by the General Partner or any Affiliate of the General Partner of the rights accorded pursuant to Article XV), shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement (or any other agreements) or of any duty stated or implied by law or equity.
(c) At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain working capital and other reserves in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
(d) In exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner (including the General Partner) of any action taken by it. The General Partner and the Partnership shall not have liability to a Limited Partner under any circumstances as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner pursuant to its authority under this Agreement.
Appears in 1 contract
Management. (a) The General Partner shall conduct, direct and manage all activities of the Partnership. Except as otherwise expressly provided in this Agreement, all management powers over the business and affairs of the Partnership are and shall be exclusively vested in the General Partner, and no Limited Partner or Assignee shall have any right to participate in or exercise control or management power over the business and affairs of the Partnership. The General Partner may not be removed by the Partners with or without cause, except with the Consent of the General Partner. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or which that are granted to the General Partner under any other provision of this Agreement, the General Partner, subject to the other provisions hereof including Section 7.3, shall have full power and authority to do all things and on such terms as it, in its sole discretion, may deem deemed necessary or appropriate desirable by it to conduct the business of the Partnership, to exercise all powers set forth in Section 2.5 3.2 hereof and to effectuate the purposes set forth in Section 2.43.1 hereof, including the followingincluding, without limitation:
(i) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money or selling assets to permit the Partnership to make distributions to its Partners in such amounts as will permit the General Partner (so long as the General Partner qualifies as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Code Section 4981) and to make distributions to its shareholders sufficient to permit the General Partner to maintain REIT status or otherwise to satisfy the REIT Requirements), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtednessindebtedness (including the securing of same by deed to secure debt, including indebtedness that is convertible into Partnership Securitiesmortgage, deed of trust or other lien or encumbrance on the Partnership's assets) and the incurring of any other obligationsobligations that it deems necessary for the conduct of the activities of the Partnership;
(ii) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership;
(iii) the acquisition, dispositionsale, mortgagetransfer, pledgeexchange or other disposition of any, encumbrance, hypothecation all or exchange of any or substantially all of the assets of the Partnership (including, but not limited to, the exercise or grant of any conversion, option, privilege or subscription right or any other right available in connection with any assets at any time held by the Partnership) or the merger merger, consolidation, reorganization or other combination of the Partnership with or into another Person (the matters described in this clause (iii) being subject, however, to any prior approval that may be required by Section 7.3)entity;
(iv) the mortgage, pledge, encumbrance or hypothecation of any assets of the Partnership, the use of the assets of the Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms that it sees fit, including including, without limitation, the financing of the conduct operations and activities of the operations General Partner, the Partnership or any of the Partnership Group; subject to Section 7.6(a)Partner ship's Subsidiaries, the lending of funds to other Persons (including other Group Members)including, without limitation, the Partnership's Subsidiaries) and the repayment or guarantee of obligations of the Partnership, its Subsidiaries and any other Person in which the Partnership Group has an equity investment, and the making of capital contributions to any member of and equity investments in the Partnership GroupPartnership's Subsidiaries;
(v) the management, operation, leasing, landscaping, repair, alteration, demolition, replacement or improvement of any Property, including, without limitation, any Contributed Property, or other asset of the Partnership or any Subsidiary;
(vi) the negotiation, execution and performance of any contracts, leases, conveyances or other instruments (including instruments that limit the liability of General Partner considers useful or necessary to the Partnership under contractual arrangements to all or particular assets conduct of the Partnership, with 's operations or the other party to the contract to have no recourse against implementation of the General Partner or its assets Partner's powers under this Agreement, including contracting with contractors, developers, consultants, accountants, legal counsel, other than its interest in professional advisors and other agents and the payment of their expenses and compensation out of the Partnership, even if same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case);
(vi) the distribution of Partnership cash's assets;
(vii) the selection distribution of Partnership cash or other Partnership assets in accordance with this Agreement, the holding, management, investment and dismissal reinvestment of employees (including employees having titles such as “president,” “vice president,” “secretary” cash and “treasurer”) and agentsother assets of the Partnership, outside attorneys, accountants, consultants and contractors and the determination collection and receipt of their compensation revenues, rents and other terms income of employment or hiringthe Partnership;
(viii) the maintenance of such insurance for the benefit of the Partnership Group and the Partners as it deems necessary or appropriate, including, without limitation, (i) casualty, liability and other insurance on the Properties of the Partnership and (ii) liability insurance for the Indemnitees hereunder;
(ix) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies companies, joint ventures or other relationships that it deems desirable (including including, without limitation, the acquisition of interests in, and the contributions of property to, any Group Member Subsidiary and any other Person in which it has an equity investment from time to time) subject ); provided, however, that, as long as the General Partner has determined to continue to qualify as a REIT, the restrictions set forth General Partner may not engage in any such formation, acquisition or contribution that would cause the General Partner to fail to qualify as a REIT within the meaning of Code Section 2.4856(a);
(x) the control of any matters affecting the rights and obligations of the Partnership, including the bringing settlement, compromise, submission to arbitration or any other form of dispute resolution, or abandonment, of any claim, cause of action, liability, debt or damages, due or owing to or from the Partnership, the commencement or defense of suits, legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, and defending the representation of actions at law the Partner ship in all suits or in equity and otherwise engaging in the conduct legal proceedings, administrative proceedings, arbitrations or other forms of litigation and dispute resolution, the incurring of legal expense expense, and the settlement of claims and litigation;
(xi) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.8);
(xiii) unless restricted or prohibited by Section 5.7, the purchase, sale or other acquisition or disposition of Partnership Securities, or the issuance of additional options, rights, warrants and appreciation rights relating to Partnership Securities; and
(xivxi) the undertaking of any action in connection with the Partnership’s participation 's direct or indirect investment in any Group Member Subsidiary or any other Person (including, without limitation, the contribution or loan of funds by the Partnership to such Persons);
(xii) except as otherwise specifically set forth in this Agreement, the determination of the fair market value of any Partnership property distributed in kind using such reasonable method of valuation as it may adopt; provided that such methods are otherwise consistent with the requirements of this Agreement;
(xiii) the enforcement of any rights against any Partner pursuant to representations, warranties, covenants and indemnities relating to such Partner's contribution of property or assets to the Partnership;
(xiv) the exercise, directly or indirectly, through any attorney-in-fact acting under a member general or partnerlimited power of attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(xv) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(xvi) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest, pursuant to contractual or other arrangements with such Person;
(xvii) the making, execution and delivery of any and all deeds, leases, notes, deeds to secure debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate in the judgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement;
(xviii) the issuance of additional Partnership Units, as appropriate and in the General Partner's sole and absolute discretion, in connection with Capital Contributions by Additional Limited Partners and additional Capital Contributions by Partners pursuant to Article 4 hereof; and
(xix) an election to dissolve the Partnership pursuant to Section 13.1(c) hereof.
(b) Notwithstanding any other provision of this Agreement, the Operating Company Agreement, the Delaware Act or any applicable law, rule or regulation, each Each of the Limited Partners and the Assignees and each other Person who may acquire an interest agrees that, except as provided in Partnership Securities hereby (i) approvesSection 7.3 hereof, ratifies and confirms the execution, delivery and performance by the parties thereto of the Operating Company Agreement, any other limited liability company or partnership agreement of any other Group Member, the Underwriting Agreement, the Omnibus Agreement, the Contribution Agreement and the other agreements described in or filed as exhibits to the Registration Statement that are related to the transactions contemplated by the Registration Statement; (ii) agrees that the General Partner (on its own or through any officer of the Partnership) is authorized to execute, deliver and perform the above-mentioned agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership without any further act, approval or vote of the Partners Partners, notwithstanding any other provision of this Agreement, the Act or the Assignees any applicable law, rule or the other Persons who may acquire an interest in Partnership Securities; and (iii) agrees that the regulation. The execution, delivery or performance by the General Partner, any Group Member Partner or any Affiliate the Partnership of any of them, of this Agreement or any agreement authorized or permitted under this Agreement (including the exercise by the General Partner or any Affiliate of the General Partner of the rights accorded pursuant to Article XV), shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement (or any other agreements) or of any duty stated or implied by law or equity.
(c) At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain working capital and other reserves in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
(d) In exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner (including the General Partner) of any action taken by it. The General Partner and the Partnership shall not have liability to a Limited Partner under any circumstances as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner pursuant to its authority under this Agreement.
Appears in 1 contract
Management. (a) The General Partner shall conduct, direct and manage all activities of the Partnership. A. Except as otherwise expressly provided in this Agreement, all management powers over the business and affairs of the Partnership are and shall be exclusively vested in the General Partner, and no Limited Partner or Assignee shall have any right to participate in or exercise control or management power over the business and affairs of the Partnership. The General Partner may not be removed by the Limited Partners. In addition to the powers now or hereafter granted to a general partner of a limited partnership under applicable law or which are granted to the General Partner under any other provision of this Agreement, the General Partner, subject to Section 7.3the terms of this Agreement, shall have full power and authority to do all things and on such terms as itdeemed necessary, in its sole discretion, may deem necessary desirable or appropriate convenient by it to conduct the business of the Partnership, to exercise all powers set forth in Section 2.5 3.2 and to effectuate the purposes set forth in Section 2.43.1, including the followingincluding, without limitation:
(i1) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money to permit the Partnership to make distributions to its Partners in such amounts as will permit the Company (so long as the Company desires to maintain its qualification as a REIT) to avoid the payment of any U.S. federal income tax (including, for this purpose, any excise tax pursuant to Section 4981 of the Code) and to make distributions to its shareholders in amounts sufficient to permit the Company to maintain its REIT status), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences evidence of indebtednessindebtedness (including the securing of the same by deed, including indebtedness that is convertible into Partnership Securitiesmortgage, deed of trust or other lien or encumbrance on the Partnership’s assets or any assets of its Subsidiaries) and the incurring of any other obligationsobligations it deems necessary for the conduct of the activities of the Partnership;
(ii2) the making of tax, regulatory and other filingsfilings or elections, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership;
(iii3) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the Partnership (including the exercise or grant of any conversion, option, privilege, or subscription right or other right available in connection with any assets at any time held by the Partnership) or the merger or other combination of the Partnership with or into another Person entity (all of the matters described in this clause (iii) being subject, however, foregoing subject to any prior approval that may be only to the extent required by Section 7.3);
(iv4) the mortgage, pledge, encumbrance or hypothecation of any assets of the Partnership, the use of the assets of the Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms that it sees fit, including including, without limitation, the financing of the conduct of the operations of the Partnership Group; subject to Section 7.6(a)Partnership, the Company or any of the Partnership’s or the Company’s Subsidiaries, the lending of funds to other Persons (including other Group Members)including, without limitation, the Subsidiaries of the Partnership and/or the Company) and the repayment or guarantee of obligations of the Partnership Group and its Subsidiaries and any other Person in which it has an equity investment, and the making of capital contributions to any member of the Partnership Groupits Subsidiaries;
(v5) the management, operation, leasing, landscaping, repair, alteration, demolition, disposition or improvement of any real property or improvements owned by the Partnership or any Subsidiary or the Partnership;
(6) the negotiation, execution execution, delivery and performance of any contractscontracts (including leases), conveyances or other instruments (including instruments that limit the liability of General Partner considers useful or necessary or convenient to the Partnership under contractual arrangements to all or particular assets conduct of the Partnership, with ’s operations or the other party to the contract to have no recourse against implementation of the General Partner or its assets Partner’s powers under this Agreement, including, without limitation, contracting with consultants, accountants, legal counsel, other than its interest in professional advisors and other agents and the payment of their expenses and compensation out of the Partnership, even if same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case)’s assets;
(vi7) the distribution of Partnership cashcash or other Partnership assets in accordance with this Agreement;
(vii8) holding, managing, investing and reinvesting cash and other assets of the Partnership;
(9) the collection and receipt of revenues and income of the Partnership;
(10) the amending, restating and/or supplementing of this Agreement or the Certificate;
(11) the establishment of one or more divisions of the Partnership, the selection and dismissal of employees of the Partnership (including including, without limitation, employees having who may be designated as officers with titles such as “president,” “vice president,” “secretary” and “treasurer”) ” of the Partnership), and agents, outside attorneys, accountants, consultants and contractors of the Partnership, and the determination of their compensation and other terms of employment or hiring;
(viii12) the maintenance of such insurance for the benefit of the Partnership Group and the Partners as it deems necessary or appropriate;
(ix13) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventureslimited liability companies, real estate investment trusts, corporations, limited liability companies entities that are treated as REITs, “taxable REIT subsidiaries” or as foreign corporations for federal income tax purposes, joint ventures or other relationships that it deems desirable (including including, without limitation, the acquisition of interests in, and the contributions of property or the making of loans to, its or the Company’s Subsidiaries and any Group Member other Person in which it has an equity investment from time to time) subject time or the incurrence of indebtedness on behalf of such Persons or the guarantee of obligations of such Persons and the making of any tax, regulatory or other filing or election with respect to any of the restrictions set forth foregoing Persons); provided, that as long as the Company has determined to continue to qualify as a REIT, the Partnership may not engage in Section 2.4any such formation, acquisition or contribution that would cause the Company to fail to qualify as a REIT;
(x14) the control of any matters affecting the rights and obligations of the Partnership, including the bringing and defending settlement, compromise, submission to arbitration or any other form of actions at law dispute resolution, or in equity and otherwise engaging in abandonment of, any claim, cause of action, liability, Debt or damages, due or owing to or from the conduct Partnership, the commencement or defense of litigation suits, legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, and the incurring representation of the Partnership in all suits or legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, the incurrence of legal expense expense, and the settlement of claims and litigation;
(xi) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.8);
(xiii) unless restricted or prohibited by Section 5.7, the purchase, sale or other acquisition or disposition of Partnership Securities, or the issuance of additional options, rights, warrants and appreciation rights relating to Partnership Securities; and
(xiv15) the undertaking of any action in connection with the Partnership’s participation direct or indirect investment in any Group Member Subsidiary or any other Person (including, without limitation, the contribution or loan of funds by the Partnership to such Persons);
(16) the determination of the fair market value of any Partnership property distributed in kind using such reasonable method of valuation as the General Partner may adopt;
(17) the enforcement of any rights against any Partner pursuant to representations, warranties, covenants and indemnities relating to such Partner’s contribution of property or assets to the Partnership;
(18) the exercise, directly or indirectly, through any attorney-in-fact acting under a general or limited power of attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(19) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(20) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest pursuant to contractual or other arrangements with such Person;
(21) the making, execution, delivery and performance of any and all deeds, leases, notes, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary, appropriate or convenient, in the judgment of the General Partner, for the accomplishment of any of the powers of the General Partner enumerated in this Agreement;
(22) the issuance of additional Partnership Units and other partnership interests to any Partners or other Persons; and
(23) the taking of any action necessary or appropriate to enable the Company to qualify as a member or partnerREIT.
(b) Notwithstanding B. Each of the Limited Partners agrees that the General Partner is authorized to execute, deliver and perform the above-mentioned agreements and transactions on behalf of the Partnership, and otherwise to exercise any power of the General Partner under this Agreement or the Act, without any further act, approval or vote of the Partners, notwithstanding any other provision of this AgreementAgreement (except as provided in Section 7.3), the Operating Company Agreement, the Delaware Act or any applicable law, rule or regulation, each of the Partners and the Assignees and each other Person who may acquire an interest in Partnership Securities hereby (i) approves, ratifies and confirms the execution, delivery and performance by the parties thereto of the Operating Company Agreement, any other limited liability company or partnership agreement of any other Group Member, the Underwriting Agreement, the Omnibus Agreement, the Contribution Agreement and the other agreements described in or filed as exhibits to the Registration Statement that are related to fullest extent permitted under the transactions contemplated by the Registration Statement; (ii) agrees that the General Partner (on its own Act or through any officer of the Partnership) is authorized to executeother applicable law, deliver and perform the agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in rule or contemplated by the Registration Statement on behalf of the Partnership without any further act, approval or vote of the Partners or the Assignees or the other Persons who may acquire an interest in Partnership Securities; and (iii) agrees that the regulation. The execution, delivery or performance by the General Partner, any Group Member Partner or any Affiliate the Partnership of any of them, of this Agreement or any agreement authorized or permitted under this Agreement (including the exercise by the General Partner or any Affiliate of the General Partner of the rights accorded pursuant to Article XV), shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement (or any other agreements) or of any duty stated or implied by law or equity.
C. At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain at any and all times working capital accounts and other cash or similar balances in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
D. In exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner of any action taken by it. The General Partner and the Partnership shall not be liable to a Limited Partner under any circumstances as a result of an income tax or other tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner taken pursuant to its authority under this Agreement and in accordance with the terms of Section 7.3.
Appears in 1 contract
Samples: Limited Partnership Agreement (Nexpoint Diversified Real Estate Trust)
Management. (a) The Except as delegated to the Manager Group as set forth in the Management Services Agreement or as otherwise provided therein or in the NEE Partners Partnership Agreement, the General Partner shall conduct, direct and manage all activities of the Partnership. Except as otherwise expressly provided in this Agreement, but without limitation on the ability of the General Partner to delegate its rights and power to other Persons, all management powers over the business and affairs of the Partnership shall be exclusively vested in the General Partner, and no Limited Partner or Assignee in its capacity as such shall have any management power over the business and affairs of the Partnership. In addition to the powers now or hereafter granted to a general partner of a limited partnership under applicable law or which that are granted to the General Partner under any other provision of this Agreement, the General Partner, subject to Section 7.3, shall have full power and authority to do all things and on such terms as it, in its sole discretion, may deem it determines to be necessary or appropriate to conduct the business of the Partnership, to exercise all powers set forth in Section 2.5 and to effectuate the purposes set forth in Section 2.4, including the following:
(i) the making of any expenditures, the lending or borrowing of money, the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtedness, including indebtedness that is convertible into or exchangeable for Partnership SecuritiesInterests, and the incurring of any other obligations;
(ii) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership;
(iii) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the Partnership or the merger or other combination of the Partnership with or into another Person (the matters described in this clause (iii) being subject, however, to any prior approval that may be required by Section 7.37.3 and Article XIV);
(iv) the use of the assets of the Partnership (including cash on hand) for any purpose consistent with the terms of this Agreement, including (A) the financing of the conduct of the operations of the Partnership Group; (B) subject to Section 7.6(a), the lending of funds to other Persons (including other Group Members), ; (C) the repayment or guarantee of obligations of the Partnership any Group Member; and (D) the making of capital contributions to any member of the Partnership GroupGroup Member;
(v) the negotiation, execution and performance of any contracts, conveyances or other instruments (including instruments that limit 927933.17-WILSR01A - MSW the liability of the Partnership under contractual arrangements to all or particular assets of the Partnership, with the other party to the contract to have having no recourse against the General Partner or its assets other than its interest in the Partnership, even if the same results in the terms of the transaction being are less favorable to the Partnership than would otherwise be the case);
(vi) the distribution of Partnership cashcash held by the Partnership;
(vii) the selection and dismissal of employees (including employees having titles such as “president,” “vice president,” “secretary” and “treasurer”) and agents, internal and outside attorneys, accountants, consultants and contractors and the determination of their compensation and other terms of employment or hiring;
(viii) the maintenance of such insurance for the benefit of the Partnership Group and Group, the Partners as it deems necessary or appropriateand Indemnitees;
(ix) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies or other relationships Persons (including the acquisition of interests in, and the contributions of property to, any Group Member from time to time) subject to the restrictions set forth in Section 2.4;
(x) the control of any matters affecting the rights and obligations of the Partnership, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigation litigation, arbitration or mediation and the incurring of legal expense and the settlement of claims and litigation;
(xi) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.8);
(xiii) unless restricted or prohibited by Section 5.7, the purchase, sale or other acquisition or disposition of Partnership SecuritiesInterests, or the issuance of additional options, rights, warrants and appreciation rights relating to Derivative Partnership Securities; andInterests;
(xivxiii) the undertaking of any action in connection with the Partnership’s participation in the management of any Group Member; and
(xiv) the entering into of agreements with any of its Affiliates to render services to a Group Member or to itself in the discharge of its duties as a member or partnerGeneral Partner of the Partnership.
(b) Notwithstanding any other provision of this Agreement, the Operating Company any Group Member Agreement, the Delaware Act or any applicable law, rule or regulation, each of the Partners and the Assignees and each other Person who may acquire an interest in Partnership Securities Interests hereby (i) approves, ratifies and confirms the execution, delivery and performance by the parties thereto of the Operating Company Agreement, any other limited liability company or partnership agreement of any other Group Member, the Underwriting Agreement, the Omnibus Agreement, the Contribution Agreement and the other agreements described in or filed as exhibits to the Registration Statement that are related to the transactions contemplated by the Registration Statement; (ii) agrees that the General Partner (on its own or through any officer of the Partnership) is authorized to execute, deliver and perform the agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership without any further act, approval or vote of the Partners or the Assignees or the other Persons who may acquire an interest in Partnership Securities; and (iii) agrees that the execution, delivery or performance by the General Partner, any Group Member or any Affiliate of any of them, them of this Agreement or any agreement authorized or permitted under this Agreement (including the exercise by the General Partner or any Affiliate of the General Partner of the rights accorded pursuant to Article XV), XVII) shall not constitute a breach by the General Partner of any duty or any other obligation of any type whatsoever that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement (or any other agreements) or of any duty stated existing at law, in equity or implied otherwise. 927933.17-WILSR01A - MSW
(c) Notwithstanding any other provision of this Agreement, the consent of the NEE Partners General Partner, which may be granted or withheld in its sole discretion, shall be required for the following actions:
(i) Sale of all or substantially all assets of the Partnership Group as set forth in Section 7.3.
(ii) Merger, consolidation, or conversion of the Partnership, as set forth in Section 14.2, or the merger, consolidation, or conversion of any other Group Member.
(iii) Dissolution of the Partnership, as set forth in Section 12.1(b), or the dissolution of any other Group Member.
(iv) Transfer by law the General Partner of all or equityany part of its General Partner Interest to another Person as set forth in Section 4.6.
(v) Amendment of this Agreement.
Appears in 1 contract
Samples: Limited Partnership Agreement (Nextera Energy Partners, Lp)
Management. (a) The General Partner shall conduct, direct and manage all activities of the Partnership. A. Except as otherwise expressly provided in this Agreement, all management powers over the business and affairs of the Partnership are and shall be exclusively vested in the General Partner, and no Limited Partner or Assignee shall have any right to participate in or exercise control or management power over the business and affairs of the Partnership. The General Partner may not be removed by the Partners with or without cause, except with the Consent of the General Partner. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or which that are granted to the General Partner under any other provision of this Agreement, the General Partner, subject to the other provisions hereof including Section 7.3, shall have full power and authority to do all things and on such terms as it, in its sole discretion, may deem deemed necessary or appropriate desirable by it to conduct the business of the Partnership, to exercise all powers set forth in Section 2.5 3.2 hereof and to effectuate the purposes set forth in Section 2.43.1 hereof, including the followingincluding, without limitation:
(i1) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money to permit the Partnership to make distribu- tions to its Partners in such amounts as will permit the Previous General Partner (so long as the Previous General Partner qualifies as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Code Section 4981) and to make distributions to its shareholders sufficient to permit the Previous General Partner to maintain REIT status or otherwise to satisfy the REIT Requirements), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtednessindebtedness (including the securing of same by deed to secure debt, including indebtedness that is convertible into Partnership Securitiesmortgage, deed of trust or other lien or encumbrance on the Partnership- 's assets) and the incurring of any other obligationsobligations that it deems necessary for the conduct of the activities of the Partnership;
(ii2) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership;
(iii3) the acquisition, dispositionsale, mortgagetransfer, pledge, encumbrance, hypothecation exchange or exchange other disposition of any or all of the assets of the Partnership (including, but not limited to, the exercise or grant of any conversion, option, privilege or subscription right or any other right available in connection with any assets at any time held by the Partnership) or the merger merger, consolida- tion, reorganization or other combination of the Partnership with or into another Person (the matters described in this clause (iii) being subject, however, to any prior approval that may be required by Section 7.3)entity;
(iv) the use of the assets of the Partnership (including cash on hand) for any purpose consistent with the terms of this Agreement, including the financing of the conduct of the operations of the Partnership Group; subject to Section 7.6(a), the lending of funds to other Persons (including other Group Members), the repayment or guarantee of obligations of the Partnership Group and the making of capital contributions to any member of the Partnership Group;
(v) the negotiation, execution and performance of any contracts, conveyances or other instruments (including instruments that limit the liability of the Partnership under contractual arrangements to all or particular assets of the Partnership, with the other party to the contract to have no recourse against the General Partner or its assets other than its interest in the Partnership, even if same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case);
(vi) the distribution of Partnership cash;
(vii) the selection and dismissal of employees (including employees having titles such as “president,” “vice president,” “secretary” and “treasurer”) and agents, outside attorneys, accountants, consultants and contractors and the determination of their compensation and other terms of employment or hiring;
(viii) the maintenance of such insurance for the benefit of the Partnership Group and the Partners as it deems necessary or appropriate;
(ix) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies or other relationships (including the acquisition of interests in, and the contributions of property to, any Group Member from time to time) subject to the restrictions set forth in Section 2.4;
(x) the control of any matters affecting the rights and obligations of the Partnership, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigation and the incurring of legal expense and the settlement of claims and litigation;
(xi) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.8);
(xiii) unless restricted or prohibited by Section 5.7, the purchase, sale or other acquisition or disposition of Partnership Securities, or the issuance of additional options, rights, warrants and appreciation rights relating to Partnership Securities; and
(xiv) the undertaking of any action in connection with the Partnership’s participation in any Group Member as a member or partner.
(b) Notwithstanding any other provision of this Agreement, the Operating Company Agreement, the Delaware Act or any applicable law, rule or regulation, each of the Partners and the Assignees and each other Person who may acquire an interest in Partnership Securities hereby (i) approves, ratifies and confirms the execution, delivery and performance by the parties thereto of the Operating Company Agreement, any other limited liability company or partnership agreement of any other Group Member, the Underwriting Agreement, the Omnibus Agreement, the Contribution Agreement and the other agreements described in or filed as exhibits to the Registration Statement that are related to the transactions contemplated by the Registration Statement; (ii) agrees that the General Partner (on its own or through any officer of the Partnership) is authorized to execute, deliver and perform the agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership without any further act, approval or vote of the Partners or the Assignees or the other Persons who may acquire an interest in Partnership Securities; and (iii) agrees that the execution, delivery or performance by the General Partner, any Group Member or any Affiliate of any of them, of this Agreement or any agreement authorized or permitted under this Agreement (including the exercise by the General Partner or any Affiliate of the General Partner of the rights accorded pursuant to Article XV), shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement (or any other agreements) or of any duty stated or implied by law or equity.
Appears in 1 contract
Samples: Limited Partnership Agreement (Apartment Investment & Management Co)
Management. (a) The General Partner shall conduct, direct and manage all activities of the Partnership. A. Except as otherwise expressly provided in this Agreement, all management powers over the business and affairs of the Partnership are and shall be exclusively vested in the General Partner, and no Limited Partner or Assignee shall have any right to participate in or exercise control or management power over the business and affairs of the Partnership. The General Partner may not be removed by the Partners with or without cause, except with the consent of the General Partner. In addition to the powers now or hereafter granted to a general partner of a limited partnership under applicable law or which that are granted to the General Partner under any other provision of this Agreement, the General Partner, subject to the other provisions hereof including Section 7.3, shall have full power and authority to do all things and on such terms as it, in its sole discretion, may deem deemed necessary or appropriate desirable by it to conduct the business of the Partnership, to exercise all powers set forth in Section 2.5 3.2 hereof and to effectuate the purposes set forth in Section 2.43.1 hereof, including the followingincluding, without limitation:
(i) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money or selling assets to permit the Partnership to make distributions to its Partners in such amounts as will permit the General Partner (so long as the General Partner desires to maintain or restore its status as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Code Section 4981) and to make distributions to its stockholders sufficient to permit the General Partner to maintain or restore REIT status or otherwise to satisfy the REIT Requirements), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtednessindebtedness (including the securing of same by deed to secure debt, including indebtedness that is convertible into Partnership Securitiesmortgage, deed of trust or other lien or encumbrance on the Partnership’s assets) and the incurring of any other obligationsobligations that it deems necessary for the conduct of the activities of the Partnership;
(ii) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership, the registration of any class of securities of the Partnership under the Exchange Act and the listing of any debt securities of the Partnership on any exchange;
(iii) the acquisition, dispositionsale, mortgagelease, pledgetransfer, encumbranceexchange or other disposition of any, hypothecation all or exchange of any or substantially all of the assets of the Partnership (including, but not limited to, the exercise or grant of any conversion, option, privilege or subscription right or any other right available in connection with any assets at any time held by the Partnership) or the merger merger, consolidation, reorganization or other combination of the Partnership with or into another Person (the matters described in this clause (iii) being subject, however, to any prior approval that may be required by Section 7.3)entity;
(iv) the mortgage, pledge, encumbrance or hypothecation of any assets of the Partnership, the use of the assets of the Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms that it sees fit, including including, without limitation, the financing of the conduct operations and activities of the operations General Partner, the Partnership or any of the Partnership Group; subject to Section 7.6(a)Partnership’s Subsidiaries, the lending of funds to other Persons (including other Group Members)including, without limitation, the Partnership’s Subsidiaries) and the repayment or guarantee of obligations of the Partnership, its Subsidiaries and any other Person in which the Partnership Group has an equity investment, and the making of capital contributions to any member of and equity investments in the Partnership GroupPartnership’s Subsidiaries;
(v) the negotiation, execution and performance of any contracts, leases, conveyances or other instruments (including instruments that limit the liability of General Partner considers useful or necessary to the Partnership under contractual arrangements to all or particular assets conduct of the Partnership, with ’s operations or the other party to the contract to have no recourse against implementation of the General Partner or its assets Partner’s powers under this Agreement, including contracting with contractors, developers, consultants, accountants, legal counsel, other than its interest in professional advisors and other agents and the payment of their expenses and compensation out of the Partnership, even if same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case)’s assets;
(vi) the distribution of Partnership cashcash or other Partnership assets in accordance with this Agreement, the holding, management, investment and reinvestment of cash and other assets of the Partnership and the collection and receipt of revenues and income of the Partnership;
(vii) the selection maintenance of such insurance for the benefit of the Partnership and the Partners as it deems necessary or appropriate, including, without limitation, (i) casualty, liability and other insurance on the Properties and (ii) liability insurance for the Indemnitees hereunder;
(viii) the formation of, or acquisition of an interest in, and the contribution of property to, any further limited or general partnerships, limited liability companies, joint ventures or other relationships that it deems desirable (including, without limitation, the acquisition of interests in, and the contributions of property to, any Subsidiary and any other Person in which it has an equity investment from time to time); provided, however, that, as long as the General Partner has determined to continue to qualify as a REIT, the General Partner may not engage in any such formation, acquisition or contribution that would cause the General Partner to fail to qualify as a REIT within the meaning of Code Section 856(a);
(ix) the control of any matters affecting the rights and obligations of the Partnership, including the settlement, compromise, submission to arbitration or any other form of dispute resolution, or abandonment, of any claim, cause of action, liability, debt or damages, due or owing to or from the Partnership, the commencement or defense of suits, legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, and the representation of the Partnership in all suits or legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, the incurring of legal expense, and the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(x) the undertaking of any action in connection with the Partnership’s direct or indirect investment in any Subsidiary or any other Person (including, without limitation, the contribution or loan of funds by the Partnership to such Persons);
(xi) except as otherwise specifically set forth in this Agreement, the determination of the fair market value of any Partnership property distributed in-kind using such reasonable method of valuation as it may adopt; provided that such methods are otherwise consistent with the requirements of this Agreement;
(xii) the enforcement of any rights against any Partner pursuant to representations, warranties, covenants and indemnities relating to such Partner’s contribution of property or assets to the Partnership;
(xiii) the exercise, directly or indirectly, through any attorney-in-fact acting under a general or limited power-of-attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(xiv) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(xv) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest, pursuant to contractual or other arrangements with such Person;
(xvi) the making, execution and delivery of any and all deeds, leases, notes, deeds to secure debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate in the judgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement;
(xvii) the issuance of additional Partnership Units, as appropriate and in the General Partner’s sole and absolute discretion, in connection with Capital Contributions by Additional Limited Partners and additional Capital Contributions by Partners pursuant to Article IV hereof;
(xviii) the selection, designation of powers, authority and duties and dismissal of employees or personnel of the Partnership (including including, without limitation, employees or personnel having titles such as “president,” “vice president,” “secretary” and “treasurer”) and agents, outside attorneys, accountants, consultants and contractors and of the Partnership, the General Partner or the Manager the determination of their compensation and other terms of employment or service or hiring, and the delegation to any such Person the authority to conduct the business of the Partnership in accordance with the terms of this Agreement;
(viiixix) the maintenance distribution of such insurance for cash to acquire Partnership Units held by a Limited Partner in connection with a Limited Partner’s exercise of its Redemption under Section 8.6 hereof;
(xx) the benefit amendment and restatement of Exhibit A hereto to reflect accurately at all times the Partnership Group Capital Contributions and Percentage Interests of the Partners as it deems the same are adjusted from time to time to the extent necessary to reflect redemptions, Capital Contributions, the issuance of Partnership Units, the admission of any Additional Limited Partner or appropriateany Substituted Limited Partner or otherwise, which amendment and restatement, notwithstanding anything in this Agreement to the contrary, shall not be deemed an amendment to this Agreement, as long as the matter or event being reflected in Exhibit A hereto otherwise is authorized by this Agreement;
(ixxxi) an election to dissolve the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies or other relationships (including the acquisition of interests in, and the contributions of property to, any Group Member from time Partnership pursuant to time) subject to the restrictions set forth in Section 2.4;
(x) the control of any matters affecting the rights and obligations of the Partnership, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigation and the incurring of legal expense and the settlement of claims and litigation;
(xi) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.8);
(xiii) unless restricted or prohibited by Section 5.7, the purchase, sale or other acquisition or disposition of Partnership Securities, or the issuance of additional options, rights, warrants and appreciation rights relating to Partnership Securities13.1.D hereof; and
(xivxxii) the undertaking taking of any action in connection with the Partnership’s participation in any Group Member as a member necessary or partner.
(b) Notwithstanding any other provision of this Agreement, the Operating Company Agreement, the Delaware Act or any applicable law, rule or regulation, each of the Partners and the Assignees and each other Person who may acquire an interest in Partnership Securities hereby (i) approves, ratifies and confirms the execution, delivery and performance by the parties thereto of the Operating Company Agreement, any other limited liability company or partnership agreement of any other Group Member, the Underwriting Agreement, the Omnibus Agreement, the Contribution Agreement and the other agreements described in or filed as exhibits appropriate to the Registration Statement that are related to the transactions contemplated by the Registration Statement; (ii) agrees that enable the General Partner (on its own or through any officer to qualify as a REIT.
B. Each of the Partnership) Limited Partners agrees that, except as provided in Section 7.3 hereof, the General Partner is authorized to execute, deliver and perform the above-mentioned agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership without any further act, approval or vote of the Partners Partners, notwithstanding any other provision of this Agreement, the Act or any applicable law, rule or regulation, to the Assignees full extent permitted under the Act or the other Persons who may acquire an interest in Partnership Securities; and (iii) agrees that the applicable law. The execution, delivery or performance by the General Partner, any Group Member Partner or any Affiliate the Partnership of any of them, of this Agreement or any agreement authorized or permitted under this Agreement (including the exercise by the General Partner or any Affiliate of the General Partner of the rights accorded pursuant to Article XV), shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement (or any other agreements) or of any duty stated or implied by law or equity.
C. At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain working capital and other reserves in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
D. In exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner (including the General Partner) of any action taken (or not taken) by it. The General Partner and the Partnership shall not have liability to a Limited Partner for monetary damages or otherwise for losses sustained, liabilities incurred or benefits not derived by such Limited Partner in connection with such decisions, provided that the General Partner has acted in good faith and pursuant to its authority under this Agreement.
Appears in 1 contract
Samples: Limited Partnership Agreement (MFResidential Investments, Inc.)
Management. (ai) The General Partner shall conduct, direct and manage all activities of the Partnership. Except as otherwise expressly provided in this Agreement, all management powers over full, complete and exclusive discretion to manage and control the business and affairs of the Partnership are and shall be exclusively vested in the General Partner, and no Limited Partner or Assignee shall have any right to participate in or exercise control or management power over the business and affairs of the Partnership. .
(ii) The General Partner may not be removed by the Limited Partners with or without cause.
(iii) In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or which are granted to the General Partner under any other provision of this Agreement, the General Partner, subject to Section 7.37.11, shall have full power 24 = 1 and authority to do all things and on such terms as it, in its sole discretion, may deem deemed necessary or appropriate desirable by it to conduct the business of the Partnership, to exercise all powers set forth in Section 2.5 3.2 hereof and to effectuate the purposes set forth in Section 2.43.1 hereof, including the followingincluding, without limitation:
(i1) the making of any expenditures, the lending or borrowing of money, including, without limitation, making prepayments on loans and borrowing money to permit the Partnership to make distributions to its Partners in such amounts as will permit the General Partner (so long as the General Partner qualifies as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Section 4981 of the Code) and to make distributions to its stockholders in amounts sufficient to permit the General Partner to maintain REIT status,
(2) the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, ,
(3) the issuance of evidences evidence of indebtednessindebtedness (including the securing of the same by deed, including indebtedness that is convertible into Partnership Securitiesmortgage, and deed of trust or other lien or encumbrance on the Partnership’s assets) and
(4) the incurring of any other obligationsobligations it deems necessary for the conduct of the activities of the Partnership, including the payment of all expenses associated with the General Partner;
(iiB) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the PartnershipPartnership or the General Partner;
(iiiC) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any all or substantially all of the assets of the Partnership (including the exercise or grant of any conversion, option, privilege, or subscription right or other right available in connection with any assets at any time held by the Partnership) or the merger merger, consolidation or other combination (each a “Business Combination”) of the Partnership with or into another Person (Entity on such terms as the matters described in this clause (iii) being subjectGeneral Partner deems proper, however, to any prior approval provided that may the General Partner shall be required by Section 7.3)to send to each Limited Partner a notice of such proposed Business Combination no less than 15 days prior to the record date for the vote of the General Partner’s stockholders on such Business Combination, if any;
(ivD) the use of the assets of the Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms it sees fit, including including, without limitation,
(1) the financing of the conduct of the operations of the General Partner, the Partnership Group; subject to Section 7.6(a), or any of the Partnership’s Subsidiaries,
(2) the lending of funds to other Persons (including other Group Members)including, without limitation, the Subsidiaries of the Partnership and/or the General Partner) 25 = 1 and the repayment or guarantee of obligations of the Partnership Group and its Subsidiaries and any other Person in which it has an equity investment, and
(3) the making of capital contributions to its Subsidiaries;
(E) the expansion, development, construction, leasing, repair, alteration, demolition or improvement of any member property in which the Partnership or any Subsidiary of the Partnership Groupowns an interest;
(vF) the negotiation, execution execution, and performance of any contracts, conveyances or other instruments (including instruments that limit the liability of General Partner considers useful or necessary to the Partnership under contractual arrangements to all or particular assets conduct of the Partnership, with ’s operations or the other party to the contract to have no recourse against implementation of the General Partner or its assets Partner’s powers under this Agreement, including contracting with contractors, developers, consultants, accountants, legal counsel, other than its interest in professional advisors and other agents and the payment of their expenses and compensation out of the Partnership, even if same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case)’s assets;
(viG) the distribution of Partnership cashcash or other Partnership assets in accordance with this Agreement;
(viiH) holding, managing, investing and reinvesting cash and other assets of the Partnership;
(I) the collection and receipt of revenues and income of the Partnership;
(J) the establishment of one or more divisions of the Partnership, the selection and dismissal of employees of the Partnership (including including, without limitation, employees having titles such as “president,” “vice president,” “secretary” and “treasurer”) ” of the Partnership), and agents, outside attorneys, accountants, consultants and contractors of the Partnership, and the determination of their compensation and other terms of employment or hiringengagement;
(viiiK) the maintenance of such insurance for the benefit of the Partnership Group and the Partners and directors and officers thereof as it deems necessary or appropriate;
(ixL) the formation of, or acquisition of an interest (including non-voting interests in entities controlled by Affiliates of the Partnership or third parties) in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies Entities or other relationships (including that it deems desirable, including, without limitation, the acquisition of interests in, and the contributions of funds or property to, or making of loans to, its Subsidiaries and any Group Member other Person from time to time) subject , or the incurrence of indebtedness on behalf of such Persons or the guarantee of the obligations of such Persons; provided that, as long as the General Partner has determined to elect to qualify as a REIT or to continue to qualify as a REIT, the restrictions set forth Partnership may not engage in Section 2.4any such formation, acquisition or contribution that would cause the General Partner to fail to qualify as a REIT;
(xM) the control of any matters affecting the rights and obligations of the Partnership, including 26 = 1
(1) the bringing and defending settlement, compromise, submission to arbitration or any other form of actions at law dispute resolution, or abandonment of, any claim, cause of action, liability, debt or damages, due or owing to or from the Partnership,
(2) the commencement or defense of suits, legal proceedings, administrative proceedings, arbitration or other forms of dispute resolution, and
(3) the representation of the Partnership in equity and otherwise engaging in the conduct all suits or legal proceedings, administrative proceedings, arbitrations or other forms of litigation and dispute resolution, the incurring of legal expense expenses, and the settlement of claims and litigation;
(xi) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.8);
(xiii) unless restricted or prohibited by Section 5.7, the purchase, sale or other acquisition or disposition of Partnership Securities, or the issuance of additional options, rights, warrants and appreciation rights relating to Partnership Securities; and
(xivN) the undertaking of any action in connection with the Partnership’s participation direct or indirect investment in its Subsidiaries or any Group Member other Person (including, without limitation, the contribution or loan of funds by the Partnership to such Persons);
(O) the determination of the fair market value of any Partnership property distributed in kind using such reasonable method of valuation as the General Partner, in its sole discretion, may adopt;
(P) the exercise, directly or indirectly, through any attorney-in-fact acting under a member general or partnerlimited power of attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(Q) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(R) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest pursuant to contractual or other arrangements with such Person;
(S) the making, execution and delivery of any and all deeds, leases, notes, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate, in the judgment of the General Partner, for the accomplishment of any of the foregoing;
(T) the issuance of additional Partnership Units in connection with Capital Contributions by Additional Limited Partners and additional Capital Contributions by Partners pursuant to Article 4 hereof; (U)the opening of bank accounts on behalf of, and in the name of, the Partnership and its Subsidiaries; and 27 = 1
(V) maintaining, or causing the transfer agent to maintain the Partnership Interest Records to reflect accurately at all times the Capital Contributions and Percentage Interests of the Partners as the same are adjusted from time to time to the extent necessary to reflect redemptions, Capital Contributions, the issuance of Partnership Units, the admission of any Additional Limited Partner or any Substituted Limited Partner or otherwise.
(b) Notwithstanding any other provision of this Agreement, the Operating Company Agreement, the Delaware Act or any applicable law, rule or regulation, each (iv)(i)Each of the Limited Partners and the Assignees and each other Person who may acquire an interest in Partnership Securities hereby (i) approves, ratifies and confirms the execution, delivery and performance by the parties thereto of the Operating Company Agreement, any other limited liability company or partnership agreement of any other Group Member, the Underwriting Agreement, the Omnibus Agreement, the Contribution Agreement and the other agreements described in or filed as exhibits to the Registration Statement that are related to the transactions contemplated by the Registration Statement; (ii) agrees agree that the General Partner (on its own or through any officer of the Partnership) is authorized to execute, deliver and perform the above-mentioned agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership without any further act, approval or vote of the Partners or the Assignees or the Partners, notwithstanding any other Persons who may acquire an interest in Partnership Securities; and (iii) agrees that the execution, delivery or performance by the General Partner, any Group Member or any Affiliate of any of them, provision of this Agreement or any agreement authorized or to the fullest extent permitted under this Agreement (including the exercise by the General Partner Act or any Affiliate of the General Partner of the rights accorded pursuant to Article XV)other applicable law, shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership rule or the Limited Partners or any other Persons under this Agreement (or any other agreements) or of any duty stated or implied by law or equityregulation.
Appears in 1 contract
Samples: Agreement of Limited Partnership (Independence Realty Trust, Inc)
Management. (a) The General Partner shall conduct, direct and manage all activities of the Partnership. A. Except as otherwise expressly provided in this Agreement, all management powers over the business and affairs of the Partnership are and shall be exclusively vested in the General Partner, and no . The Limited Partner or Assignee Partners shall not have any right to participate in or exercise control or management power over the business and affairs of the Partnership. The General Partner may not be removed by the Limited Partners. In addition to the powers now or hereafter granted to a general partner of a limited partnership under applicable law or which are granted to the General Partner under any other provision of this Agreement, the General Partner, subject to Section 7.37.3 hereof, shall have full power and authority to do all things and on such terms as it, in its sole discretion, may deem deemed necessary or appropriate desirable by it to conduct the business of the Partnership, to exercise all powers set forth in Section 2.5 3.2 hereof and to effectuate the purposes set forth in Section 2.43.1 hereof, including, without limitation:
(1) the execution, acknowledgement, verification, delivery, filing and recording, for and in the name of the Partnership, and, to the extent necessary, the General Partner and the Initial Limited Partner, of any and all documents and instruments, including the following:LCIF Merger Agreement and the performance of any and all acts required by applicable law or which GP-1 deems necessary or advisable in order to give effect to the consummation of the LCIF Merger;
(i2) the making of any expenditures, the lending lending, borrowing or guarantee of money (including, without limitation, making prepayments on loans and borrowing money to permit the Partnership to make distributions to its Partners in such amounts as will permit LXP (so long as LXP qualifies as a REIT) in general, including, without limitation, to avoid the payment of moneyany federal income tax (including, for this purpose, any excise tax pursuant to Section 4981 of the Code), to make distributions to its stockholders sufficient to permit LXP to maintain REIT status), the incurrence of inter-company indebtedness and the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtedness, including indebtedness that is convertible into Partnership Securities, and the incurring of any other obligations;
(ii) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership;
(iii3) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the Partnership or the merger or other combination of the Partnership with or into another Person entity (all of the matters described in this clause (iii) being subject, however, foregoing subject to any prior approval that may be only to the extent required by Section 7.37.3 hereof);
(iv4) the use of the assets of the Partnership (including cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms the General Partner sees fit, including the financing of the conduct of the operations of the Partnership Group; subject to Section 7.6(a), the lending of funds to other Persons (including other Group Members), the repayment or guarantee of obligations of the Partnership Group and the making of capital contributions or loans to any member of the Partnership Groupits Subsidiaries;
(v5) the management, operation, leasing, landscaping, repair, alteration, demolition or improvement of any real property or improvements owned by the Partnership or any Subsidiary of the Partnership;
(6) the negotiation, execution and performance of any contracts, conveyances or other instruments (including instruments that limit the liability of General Partner considers useful or necessary to the Partnership under contractual arrangements to all or particular assets conduct of the Partnership, with 's operations or the other party to the contract to have no recourse against implementation of the General Partner or its assets other than its interest in the Partnership, even if same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case)Partner's powers under this Agreement;
(vi7) the distribution of Partnership cashcash or other Partnership assets in accordance with this Agreement;
(vii) the selection and dismissal of employees (including employees having titles such as “president,” “vice president,” “secretary” and “treasurer”) and agents, outside attorneys, accountants, consultants and contractors and the determination of their compensation and other terms of employment or hiring;
(viii) the maintenance of such insurance for the benefit of the Partnership Group and the Partners as it deems necessary or appropriate;
(ix) 8) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies or other relationships (including joint ventures that the acquisition of interests in, and the contributions of property to, any Group Member from time to time) subject to the restrictions set forth in Section 2.4General Partner deems desirable;
(x) the control of any matters affecting the rights and obligations of the Partnership, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigation and the incurring of legal expense and the settlement of claims and litigation;
(xi) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.8);
(xiii) unless restricted or prohibited by Section 5.7, the purchase, sale or other acquisition or disposition of Partnership Securities, or the issuance of additional options, rights, warrants and appreciation rights relating to Partnership Securities; and
(xiv9) the undertaking of any action in connection with the Partnership’s participation 's direct or indirect investment in its Subsidiaries or any Group Member other Person (including, without limitation, the contribution or loan of funds by the Partnership to such Persons);
(10) the determination of the fair market value of any Partnership property distributed in kind using such reasonable method of valuation as the General Partner may adopt;
(11) the exercise, directly or indirectly, through any attorney-in-fact acting under a member general or partnerlimited power of attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership; and
(12) the making, execution and delivery of any and all deeds, leases, notes, deeds to secure debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate in the judgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement.
B. At all times from and after the date hereof, the General Partner may cause the Partnership to obtain and maintain (bi) Notwithstanding casualty, liability and other insurance on the properties of the Partnership and (ii) liability insurance for the Indemnitees hereunder.
C. At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain any and all reserves, working capital accounts and other provision of cash or similar balances in such amounts as the General Partner, in its sole discretion, deems appropriate and reasonable from time to time.
D. In exercising its authority under this Agreement, the Operating Company AgreementGeneral Partner may, but shall not be obligated to, take into account the Delaware Act or tax consequences to any applicable law, rule or regulation, each Partner of the Partners any action taken by it. The General Partner and the Assignees and each other Person who may acquire Partnership shall not, however, have liability to an interest in Partnership Securities hereby Additional Limited Partner under any circumstances as a result of an income tax liability incurred by such Additional Limited Partner as a result of an action (ior inaction) approves, ratifies and confirms the execution, delivery and performance by the parties thereto of the Operating Company Agreement, any other limited liability company or partnership agreement of any other Group Member, the Underwriting Agreement, the Omnibus Agreement, the Contribution Agreement and the other agreements described in or filed as exhibits to the Registration Statement that are related to the transactions contemplated by the Registration Statement; (ii) agrees that the General Partner (on its own or through any officer of the Partnership) is authorized to execute, deliver and perform the agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership without any further act, approval or vote of the Partners or the Assignees or the other Persons who may acquire an interest in Partnership Securities; and (iii) agrees that the execution, delivery or performance by the General Partner, any Group Member or any Affiliate of any of them, of this Agreement or any agreement authorized or permitted under this Agreement (including the exercise by the General Partner or any Affiliate of the General Partner of the rights accorded pursuant to Article XV)its authority under this Agreement.
E. Notwithstanding anything to the contrary that may be contained herein, shall not constitute a breach by the General Partner of any duty that the General Partner may owe allocate Shared Debt among LXP and the Partnership or the Limited Partners based on their gross rental revenues as ultimately determined by LXP. Nothing herein shall impact any joint and several liability or any other Persons under this Agreement (or any other agreements) or of any duty stated or implied by law or equityguaranty, as applicable, with respect to such Shared Debt.
Appears in 1 contract
Management. (a) The General Partner shall conduct, direct and manage all activities of the Partnership. A. Except as otherwise expressly provided in this Agreement, all management powers over the business and affairs of the Partnership shall be are exclusively vested in the General Partner, and no Limited Partner or Assignee shall have any right to participate in or exercise control or management power over the business and affairs of the Partnership. The General Partner may not be removed by the Limited Partners with or without cause, except with the consent of the General Partner. In addition to the powers now or hereafter granted a general partner of a limited partnership under the Act and other applicable law or which are granted to the General Partner under any other provision of this Agreement, the General Partner, subject to the other provisions hereof including Section 7.3, shall have full power and authority to do all things and on such terms as it, in its sole discretion, may deem deemed necessary or appropriate desirable by it to conduct the business of the Partnership, to exercise all powers set forth in Section 2.5 3.2 and to effectuate the purposes set forth in Section 2.43.1, including the followingincluding, without limitation:
(i) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money to permit the Partnership to make distributions to its Partners in such amounts as will permit the General Partner (for so long as the General Partner has determined to qualify as a REIT) to avoid the payment of any Federal income tax (including, for this purpose, any excise tax pursuant to Section 4981 of the Code) and to make distributions to its stockholders sufficient to permit the General Partner to maintain REIT status), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtednessindebtedness (including the securing of same by mortgage, including indebtedness that is convertible into Partnership Securities, deed of trust or other lien or encumbrance on all or any of the Partnership's assets) and the incurring of any other obligationsobligations it deems necessary for the conduct of the activities of the Partnership;
(ii) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership;
(iii) subject to the provisions of Section 7.3.D, the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the Partnership or the merger or other combination of the Partnership with or into another Person (the matters described in this clause (iii) being subject, however, to any prior approval that may be required by Section 7.3)entity;
(iv) the mortgage, pledge, encumbrance or hypothecation of all or any assets of the Partnership, and the use of the assets of the Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this Agreement, including the financing of the conduct of the operations of the Partnership Group; subject to Section 7.6(a), the lending of funds to other Persons (including other Group Members), the repayment or guarantee of obligations of the Partnership Group and the making of capital contributions to any member of the Partnership Group;
(v) the negotiation, execution and performance of any contracts, conveyances or other instruments (including instruments that limit the liability of the Partnership under contractual arrangements to all or particular assets of the Partnership, with the other party to the contract to have no recourse against the General Partner or its assets other than its interest in the Partnership, even if same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case);
(vi) the distribution of Partnership cash;
(vii) the selection and dismissal of employees (including employees having titles such as “president,” “vice president,” “secretary” and “treasurer”) and agents, outside attorneys, accountants, consultants and contractors and the determination of their compensation and other terms of employment or hiring;
(viii) the maintenance of such insurance for the benefit of the Partnership Group and the Partners as it deems necessary or appropriate;
(ix) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies or other relationships (including the acquisition of interests in, and the contributions of property to, any Group Member from time to time) subject to the restrictions set forth in Section 2.4;
(x) the control of any matters affecting the rights and obligations of the Partnership, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigation and the incurring of legal expense and the settlement of claims and litigation;
(xi) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.8);
(xiii) unless restricted or prohibited by Section 5.7, the purchase, sale or other acquisition or disposition of Partnership Securities, or the issuance of additional options, rights, warrants and appreciation rights relating to Partnership Securities; and
(xiv) the undertaking of any action in connection with the Partnership’s participation in any Group Member as a member or partner.
(b) Notwithstanding any other provision of this Agreement, the Operating Company Agreement, the Delaware Act or any applicable law, rule or regulation, each of the Partners and the Assignees and each other Person who may acquire an interest in Partnership Securities hereby (i) approves, ratifies and confirms the execution, delivery and performance by the parties thereto of the Operating Company Agreement, any other limited liability company or partnership agreement of any other Group Member, the Underwriting Agreement, the Omnibus Agreement, the Contribution Agreement and the other agreements described in or filed as exhibits to the Registration Statement that are related to the transactions contemplated by the Registration Statement; (ii) agrees that the General Partner (on its own or through any officer of the Partnership) is authorized to execute, deliver and perform the agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership without any further act, approval or vote of the Partners or the Assignees or the other Persons who may acquire an interest in Partnership Securities; and (iii) agrees that the execution, delivery or performance by the General Partner, any Group Member or any Affiliate of any of them, of this Agreement or any agreement authorized or permitted under this Agreement (including the exercise by the General Partner or any Affiliate of the General Partner of the rights accorded pursuant to Article XV), shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement (or any other agreements) or of any duty stated or implied by law or equity.terms
Appears in 1 contract
Samples: Agreement of Limited Partnership (Amb Property Corp)
Management. (a) The General Partner shall conduct, direct and manage all activities of the Partnership. A. Except as otherwise expressly provided in this Agreement, all management powers over the business and affairs of the Partnership shall be are exclusively vested in the General Partner, and no Limited Partner or Assignee shall have any right to participate in or exercise control or management power over the business and affairs of the Partnership. The General Partner may not be removed by the Limited Partners with or without cause. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law the Act or which are granted to the General Partner under any other provision of this Agreement, the General Partner, subject to Section 7.3the other provisions hereof, shall have full power and authority to do all things and on such terms as it, in its sole discretion, may deem deemed necessary or appropriate desirable by it to conduct the business of the Partnership, to exercise all powers set forth in Section 2.5 3.2 hereof and to effectuate the purposes set forth in Section 2.43.1 hereof, including the followingincluding, without limitation:
(i1) the making of any expenditures, the lending or of money, borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money to permit the Partnership to make distributions to its Partners in such amounts as will permit Parent (so long as Parent has determined to qualify as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Section 4981 of the Code), and as will permit Parent to make distributions to its stockholders sufficient to permit Parent to maintain REIT status), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtednessindebtedness (including the securing of same by mortgage, including indebtedness that is convertible into Partnership Securities, deed of trust or other lien or encumbrance on the Partnership’s assets) and the incurring of any other obligationsobligations it deems necessary for the conduct of the activities of the Partnership; provided, that all such borrowing, incurrence of Debt and prepayments shall be subject to the limitations set forth in Section 4.2;
(ii2) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership;
(iii3) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the Partnership or the merger or other combination of the Partnership with or into another Person (entity; provided that as long as Parent has determined to continue to qualify as a REIT, the matters described General Partner may not engage in this clause (iii) being subjectany such acquisition, howeverdisposition, mortgage, pledge, encumbrance, hypothecation or exchange that would cause Parent to any prior approval that may be required by Section 7.3)fail to qualify as a REIT;
(iv4) the mortgage, pledge, encumbrance or hypothecation of any assets of the Partnership, and the use of the assets of the Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms it sees fit, including including, without limitation, the financing of the conduct of the operations of the Partnership Group; subject to Section 7.6(a)General Partner, the lending of funds to other Persons (including other Group Members), and the repayment or guarantee of obligations of the Partnership Group and the making of capital contributions to any member of the Partnership Groupother Person in which it has an equity investment;
(v5) the negotiation, execution and performance of any contracts, leases, deeds, conveyances or other instruments (including instruments that limit the liability of General Partner considers useful or necessary to the Partnership under contractual arrangements to all or particular assets conduct of the Partnership, with ’s operations or the other party to the contract to have no recourse against implementation of the General Partner or its assets other than its interest in the Partnership, even if same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case)Partner’s powers under this Agreement;
(vi6) the distribution of Partnership cashcash or other Partnership assets in accordance with this Agreement;
(vii7) the selection and dismissal of any employees of the Partnership (including including, without limitation, employees having titles such as “president,” “vice president,” “secretary” and “treasurer”) ), and agents, outside attorneys, accountants, consultants and contractors of the Partnership and the determination of their compensation and other terms of employment or hiring;
(viii8) the selection and employment of third parties to perform services for and on behalf of the Partnership, including, but not limited to management, leasing and development services, and the General Partner may require that such third party service providers bxxx the Partnership directly for payment or reimbursement for such services;
(9) the maintenance of such insurance for the benefit of the Partnership Group and the Partners as it deems necessary or appropriate;
(ix10) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies ventures or other relationships that it deems desirable (including including, without limitation, the acquisition of interests in, and the contributions of property to, any Group Member Person in which it has an equity investment from time to time) subject ); provided that as long as Parent has determined to continue to qualify as a REIT, the restrictions set forth General Partner may not engage in Section 2.4any such formation, acquisition or contribution that would cause Parent to fail to qualify as a REIT;
(x11) the control of any matters affecting the rights and obligations of the Partnership, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigation and the incurring of legal expense and the settlement of claims and litigation;
(xi) , and the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.8);
(xiii) unless restricted or prohibited by Section 5.7, the purchase, sale or other acquisition or disposition of Partnership Securities, or the issuance of additional options, rights, warrants and appreciation rights relating to Partnership Securities; and
(xiv12) the undertaking of any action in connection with the Partnership’s participation direct or indirect investment in any Group Member as a member Person (including, without limitation, the contribution or partner.loan of funds by the Partnership to such Persons);
(b13) Notwithstanding the determination of the fair market value of any other provision Partnership property distributed in kind using such reasonable method of valuation as it may adopt, provided that such methods are otherwise consistent with industry standards and the requirements of this Agreement; and
(14) the enforcement of any rights against any Partner pursuant to representations, warranties, covenants and indemnities relating to such Partner’s contribution of property or assets to the Operating Company Agreement, the Delaware Act or any applicable law, rule or regulation, each Partnership.
B. Each of the Limited Partners and the Assignees and each other Person who may acquire an interest in Partnership Securities hereby (i) approves, ratifies and confirms the execution, delivery and performance by the parties thereto of the Operating Company Agreement, any other limited liability company or partnership agreement of any other Group Member, the Underwriting Agreement, the Omnibus Agreement, the Contribution Agreement and the other agreements described in or filed as exhibits to the Registration Statement that are related to the transactions contemplated by the Registration Statement; (ii) agrees that the General Partner (on its own or through any officer of the Partnership) is authorized to execute, deliver and perform the above-mentioned agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership without any further act, approval or vote of the Partners Partners, notwithstanding any other provisions of this Agreement (except as provided in Section 7.3), the Act or the Assignees any applicable law, rule or the other Persons who may acquire an interest in Partnership Securities; and (iii) agrees that the regulation. The execution, delivery or performance by the General Partner, any Group Member Partner or any Affiliate the Partnership of any of them, of this Agreement or any agreement authorized or permitted under this Agreement (including the exercise by the General Partner or any Affiliate of the General Partner of the rights accorded pursuant to Article XV), shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement (or any other agreements) or of any duty stated or implied by law or equity.
C. At all times from and after the date hereof, the General Partner may cause the Partnership to obtain and maintain (i) casualty, liability and other insurance on the properties of the Partnership and (ii) liability insurance for the Indemnities hereunder.
D. At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain working capital reserves in such amounts as the General Partner, in it sole and absolute discretion, deems appropriate and reasonable from time to time.
E. In exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner (including the General Partner) of any action taken by it. The General Partner and the Partnership shall not have liability to a Partner under any circumstances as a result of an income tax liability incurred by such Partner as a result of an action (or inaction) by the General Partner pursuant to its authority under this Agreement.
Appears in 1 contract
Samples: Agreement of Limited Partnership (Pan Pacific Retail Properties Inc)
Management. (a) The General Partner shall conduct, direct and manage all activities of the Partnership. A. Except as otherwise expressly provided in this Agreement, all management powers over the business and affairs of the Partnership are and shall be exclusively vested in the General Partner, and no Limited Partner or Assignee shall have any right to participate in or exercise control or management power over the business and affairs of the Partnership. The General Partner may not be removed by the Limited Partners with or without cause, except with the consent of the General Partner. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or which are granted to the General Partner under any other provision of this Agreement, the General Partner, subject to Section 7.3the other provisions hereof including Sections 7.3 and 11.2, shall have full power and authority to do all things and on such terms as it, in its sole discretion, may deem deemed necessary or appropriate desirable by it to conduct the business of the Partnership, to exercise all powers set forth in Section 2.5 3.2 and to effectuate the purposes set forth in Section 2.43.1, including the followingincluding, without limitation:
(i1) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money to permit the Partnership to make distributions to its Partners in such amounts as will permit the General Partner (so long as the General Partner has determined to qualify as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Section 4981 of the Code) and to make distributions to its stockholders sufficient to permit the General Partner to maintain REIT status), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtednessindebtedness (including the securing of same by mortgage, including indebtedness that is convertible into Partnership Securities, deed of trust or other lien or encumbrance on all or any of the Partnership's assets) and the incurring of any other obligationsobligations it deems necessary for the conduct of the activities of the Partnership;
(ii2) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership, the registration of any class of securities of the Partnership under the Exchange Act, and the listing of any debt securities of the Partnership on any exchange;
(iii3) subject to the provisions of Section 11.2, the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the Partnership or the merger or other combination of the Partnership with or into another Person (the matters described in this clause (iii) being subject, however, to any prior approval that may be required by Section 7.3)entity;
(iv4) the acquisition, disposition, mortgage, pledge, encumbrance or hypothecation of all or any assets of the Partnership, and the use of the assets of the Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms it sees fit, including including, without limitation, the financing of the conduct of or the operations of the Partnership Group; subject to Section 7.6(a)General Partner or the Partnership, the lending of funds to other Persons (including other Group Members)including, without limitation, the General Partner or any Subsidiaries of the Partnership) and the repayment or guarantee of obligations of the Partnership Group Partnership, any of its Subsidiaries and any other Person in which it has an equity investment, and the making of capital contributions to any member of the Partnership Groupits Subsidiaries;
(v5) the management, operation, leasing, landscaping, repair, alteration, demolition or improvement of any real property or improvements owned by the Partnership or any Subsidiary of the Partnership;
(6) the negotiation, execution execution, and performance of any contracts, leases, conveyances or other instruments (including instruments that limit the liability of General Partner considers useful or necessary to the Partnership under contractual arrangements to all or particular assets conduct of the Partnership, with 's operations or the other party to the contract to have no recourse against implementation of the General Partner or its assets Partner's powers under this Agreement, including contracting with contractors, developers, consultants, accountants, legal counsel, other than its interest in professional advisors and other agents and the payment of their expenses and compensation out of the Partnership, even if same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case)'s assets;
(vi7) the distribution of Partnership cashcash or other Partnership assets in accordance with this Agreement;
(vii) 8) the establishment of one or more divisions of the Partnership, the selection and dismissal of employees of the Partnership (including including, without limitation, employees having titles such as “"president,” “" "vice president,” “" "secretary” " and “"treasurer”) "), and agents, outside attorneys, accountants, consultants and contractors and of the Partnership, the determination of their compensation and other terms of employment or hiring, including waivers of conflicts of interest and the payment of their expenses and compensation out of the Partnership's assets;
(viii9) the maintenance of such insurance for the benefit of the Partnership Group and the Partners and directors and officers of the Partnership or the General Partner as it deems necessary or appropriate;
(ix10) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies ventures or other relationships that it deems desirable (including including, without limitation, the acquisition of interests in, and the contributions of property to, to any Group Member Subsidiary and any other Person in which it has an equity investment from time to time) subject ); provided, that, as long as the General Partner has determined to continue to qualify as a REIT, the restrictions set forth Partnership may not engage in Section 2.4any such formation, acquisition or contribution that could cause the General Partner to fail to qualify as a REIT;
(x11) the control of any matters affecting the rights and obligations of the Partnership, including the bringing settlement, compromise, submission to arbitration or any other form of dispute resolution, or abandonment of, any claim, cause of action, liability, debt or damages, due or owing to or from the Partnership, the commencement or defense of suits, legal proceedings, administrative proceedings, arbitration or other forms of dispute resolution, and defending the representation of actions at law the Partnership in all suits or in equity and otherwise engaging in the conduct legal proceedings, administrative proceedings, arbitrations or other forms of litigation and dispute resolution, the incurring of legal expense expense, and the settlement of claims and litigation;
(xi) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.8);
(xiii) unless restricted or prohibited by Section 5.7, the purchase, sale or other acquisition or disposition of Partnership Securities, or the issuance of additional options, rights, warrants and appreciation rights relating to Partnership Securities; and
(xiv12) the undertaking of any action in connection with the Partnership’s participation 's direct or indirect investment in any Group Member as a member Person (including, without limitation, contributing or partner.loaning Partnership funds to, incurring indebtedness on behalf of, or guarantying the obligations of any such Persons);
(b13) Notwithstanding any subject to the other provision of provisions in this Agreement, the Operating Company determination of the fair market value of any Partnership property distributed in kind using such reasonable method of valuation as it may adopt, provided, that such methods are otherwise consistent with requirements of this Agreement;
(14) the management, operation, leasing, landscaping, repair, alteration, demolition or improvement of any real property or improvements owned by the Delaware Act Partnership or any applicable lawSubsidiary of the Partnership or any Person in which the Partnership has made a direct or indirect equity investment;
(15) holding, rule managing, investing and reinvesting cash and other assets of the Partnership;
(16) the collection and receipt of revenues and income of the Partnership;
(17) the exercise, directly or regulationindirectly through any attorney-in-fact acting under a general or limited power of attorney, each of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(18) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(19) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest pursuant to contractual or other arrangements with such Person;
(20) the making, execution and delivery of any and all deeds, leases, notes, deeds to secure debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate in the judgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement;
(21) the issuance of additional Partnership interests, as appropriate, in connection with the contribution of Additional Funds pursuant to Section 4.3;
(22) the distribution of cash to acquire Common Units held by a Limited Partner in connection with a Limited Partner's exercise of its Redemption Right under Section 8.6 hereof; and
(23) the amendment and restatement of Exhibit A hereto to reflect accurately at all times the Capital Contributions and Percentage Interests of the Partners as the same are adjusted from time to time to the extent necessary to reflect redemptions, Capital Contributions, the issuance of Partnership Units, the admission of any Additional Limited Partner or any Substituted Limited Partner or otherwise, which amendment and restatement, notwithstanding anything in this Agreement to the Assignees and each other Person who may acquire contrary, shall not be deemed an interest amendment to this Agreement, as long as the matter or event being reflected in Partnership Securities hereby (i) approves, ratifies and confirms the execution, delivery and performance Exhibit A hereto otherwise is authorized by the parties thereto this Agreement.
B. Each of the Operating Company Agreement, any other limited liability company or partnership agreement of any other Group Member, the Underwriting Agreement, the Omnibus Agreement, the Contribution Agreement and the other agreements described in or filed as exhibits to the Registration Statement that are related to the transactions contemplated by the Registration Statement; (ii) Limited Partners agrees that the General Partner (on its own or through any officer of the Partnership) is authorized to execute, deliver and perform the above-mentioned agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership without any further act, approval or vote of the Partners Partners, notwithstanding any other provisions of this Agreement (except as provided in Section 7.3 or 11.2), the Assignees Act or any applicable law, rule or regulation to the fullest extent permitted under the Act or other Persons who may acquire an interest in Partnership Securities; and (iii) agrees that the applicable law, rule or regulation. The execution, delivery or performance by the General Partner, any Group Member Partner or any Affiliate the Partnership of any of them, of this Agreement or any agreement authorized or permitted under this Agreement (including the exercise by the General Partner or any Affiliate of the General Partner of the rights accorded pursuant to Article XV), shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement (or any other agreements) or of any duty stated or implied by law or equity.
C. At all times from and after the date hereof, the General Partner may cause the Partnership to obtain and maintain (i) casualty, liability and other insurance on the properties of the Partnership and (ii) liability insurance for the Indemnities hereunder.
D. At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain working capital and other reserves in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
E. In exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner (including the General Partner) of any action taken (or not taken) by the General Partner. The General Partner and the Partnership shall not have liability to a Partner under this Agreement as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner pursuant to its authority under this Agreement.
F. Except as otherwise provided herein, to the extent the duties of the General Partner require expenditures of funds to be paid to third parties, the General Partner shall not have any obligations hereunder except to the extent that Partnership funds are reasonably available to it for the performance of such duties, and nothing herein contained shall be deemed to authorize or require the General Partner, in its capacity as such, to expend its individual funds for payment to third parties or to undertake any individual liability or obligation on behalf of the Partnership.
Appears in 1 contract
Samples: Limited Partnership Agreement (Maguire Properties Inc)
Management. (a) The General Partner shall conduct, direct and manage all activities of the Partnership. Except as otherwise expressly provided in this Agreement, all management powers over the business and affairs of the Partnership are and shall be exclusively vested in the General Partner, and no Limited Partner or Assignee shall have any right to participate in or exercise control or management power over the business and affairs of the Partnership. The General Partner may not be removed by the Partners with or without cause, except with the consent of the General Partner. In addition to the powers now or hereafter granted to a general partner of a limited partnership under applicable law or which that are granted to the General Partner under any other provision of this Agreement, the General Partner, subject to the other provisions hereof including Section 7.37.03, shall have full power and authority to do all things and on such terms as it, in its sole discretion, may deem deemed necessary or appropriate desirable by it to conduct the business of the Partnership, to exercise all powers set forth in Section 2.5 3.02 hereof and to effectuate the purposes set forth in Section 2.43.01 hereof, including the followingincluding, without limitation:
(i) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money or selling assets to permit the Partnership to make distributions to its Partners in such amounts as will permit the Corporation (so long as the Corporation desires to maintain or restore its qualification as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Code Section 4981) and to make distributions to its stockholders sufficient to permit the Corporation to maintain or restore REIT qualification or otherwise to satisfy the REIT Requirements), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtednessindebtedness (including the securing of same by deed to secure debt, including indebtedness that is convertible into Partnership Securitiesmortgage, deed of trust or other lien or encumbrance on the Partnership's assets) and the incurring of any other obligationsobligations that it deems necessary for the conduct of the activities of the Partnership;
(ii) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership, the registration of any class of securities of the Partnership under the Exchange Act and the listing of any debt securities of the Partnership on any exchange;
(iii) subject to Section 11.02 hereof, the acquisition, dispositionsale, mortgagelease, pledgetransfer, encumbranceexchange or other disposition of any, hypothecation all or exchange of any or substantially all of the assets of the Partnership (including, but not limited to, the exercise or grant of any conversion, option, privilege or subscription right or any other right available in connection with any assets at any time held by the Partnership) or the merger merger, consolidation, reorganization or other combination of the Partnership with or into another Person (the matters described in this clause (iii) being subject, however, to any prior approval that may be required by Section 7.3)entity;
(iv) the mortgage, pledge, encumbrance or hypothecation of any assets of the Partnership, the use of the assets of the Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms that it sees fit, including including, without limitation, the financing of the operations and activities of the General Partner, the Partnership or any of the Partnership's Subsidiaries, the lending of funds to other Persons (including, without limitation, the Partnership's Subsidiaries) and the repayment of obligations of the Partnership, its Subsidiaries and any other Person in which the Partnership has an equity investment, and the making of capital contributions to and equity investments in the Partnership's Subsidiaries;
(v) the use of the assets of the Partnership (including, without limitation, cash on hand) for any purpose consistent with the terms of this Agreement and on any terms it sees fit, including, without limitation, the financing of the conduct of the operations of the General Partner, the Corporation, the Partnership Group; subject to Section 7.6(a)or any of the Partnership's Subsidiaries, the lending of funds to other Persons (including other Group Members)including, without limitation, the General Partner, the Corporation and their Subsidiaries and the Partnership's Subsidiaries) and the repayment or guarantee of obligations of the Partnership Group and its Subsidiaries and any other Person in which the Partnership has an equity investment and the making of capital contributions to its Subsidiaries;
(vi) the management, operation, leasing, landscaping, repair, alteration, demolition, replacement or improvement of any member Property, including, without limitation, any Contributed Property, or other asset of the Partnership Groupor any Subsidiary, whether pursuant to a Services Agreement or otherwise;
(vvii) the negotiation, execution and performance of any contracts, leases, conveyances or other instruments (including instruments that limit the liability of General Partner considers useful or necessary to the Partnership under contractual arrangements to all or particular assets conduct of the Partnership, with 's operations or the other party to the contract to have no recourse against implementation of the General Partner or its assets Partner's powers under this Agreement, including contracting with contractors, developers, consultants, accountants, legal counsel, other than its interest in professional advisors and other agents and the payment of their expenses and compensation out of the Partnership, even if same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case)'s assets;
(viviii) the distribution of Partnership cashcash or other Partnership assets in accordance with this Agreement, the holding, management, investment and reinvestment of cash and other assets of the Partnership and the collection and receipt of revenues, rents and income of the Partnership;
(vii) the selection and dismissal of employees (including employees having titles such as “president,” “vice president,” “secretary” and “treasurer”) and agents, outside attorneys, accountants, consultants and contractors and the determination of their compensation and other terms of employment or hiring;
(viiiix) the maintenance of such insurance for the benefit of the Partnership Group and the Partners as it the General Partner deems necessary or appropriate, including, without limitation, (i) casualty, liability and other insurance on the Properties and (ii) liability insurance for the Indemnitees hereunder;
(ixx) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies companies, joint ventures or other relationships that the General Partner deems desirable (including including, without limitation, the acquisition of interests in, and the contributions of property to, any Group Member Subsidiary and any other Person in which it has an equity investment from time to time); provided, however, that as long as the Corporation has determined to continue to qualify as a REIT, the General Partner may not engage in any such formation, acquisition or contribution that would cause the Corporation to fail to qualify as a REIT within the meaning of Code Section 856(a) subject (so long as the Corporation desires to the restrictions set forth in Section 2.4maintain its qualification as a REIT);
(xxi) the filing of applications, communicating and otherwise dealing with any and all governmental agencies having jurisdiction over, or in any way affecting, the Partnership's assets or any other aspect of the Partnership business;
(xii) the control of any matters affecting the rights and obligations of the Partnership, including the bringing settlement, compromise, submission to arbitration or any other form of dispute resolution, or abandonment, of any claim, cause of action, liability, debt or damages, due or owing to or from the Partnership, the commencement or defense of suits, legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, and defending the representation of actions at law the Partnership in all suits or in equity and otherwise engaging in the conduct legal proceedings, administrative proceedings, arbitrations or other forms of litigation and dispute resolution, the incurring of legal expense expense, and the settlement of claims and litigation;
(xi) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.8);
(xiii) unless restricted or prohibited by Section 5.7, the purchase, sale or other acquisition or disposition of Partnership Securities, or the issuance of additional options, rights, warrants and appreciation rights relating to Partnership Securities; and
(xiv) the undertaking of any action in connection with the Partnership’s participation 's direct or indirect investment in any Group Member Subsidiary or any other Person (including, without limitation, the contribution or loan of funds by the Partnership to such Persons);
(xiv) except as otherwise specifically set forth in this Agreement, the determination of the fair market value of any Partnership property distributed in-kind using such reasonable method of valuation as it may adopt; provided, that such methods are otherwise consistent with the requirements of this Agreement;
(xv) the enforcement of any rights against any Partner pursuant to representations, warranties, covenants and indemnities relating to such Partner's contribution of property or assets to the Partnership;
(xvi) the exercise, directly or indirectly, through any attorney-in-fact acting under a general or limited power-of-attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(xvii) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(xviii) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest, pursuant to contractual or other arrangements with such Person;
(xix) the making, execution and delivery of any and all deeds, leases, notes, deeds to secure Debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate in the judgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement;
(xx) the issuance of additional Partnership Units, as appropriate and in the General Partner's sole and absolute discretion, in connection with Capital Contributions by Additional Limited Partners and additional Capital Contributions by Partners pursuant to Article IV hereof;
(xxi) the selection and dismissal of Company Employees (including, without limitation, employees having titles or offices such as president, vice president, secretary and treasurer), and agents, outside attorneys, accountants, consultants and contractors of the Partnership or the General Partner, the determination of their compensation and other terms of employment or hiring and the delegation to any such Company Employee the authority to conduct the business of the Partnership in accordance with the terms of this Agreement;
(xxii) the distribution of cash to acquire Partnership Units held by a Limited Partner in connection with a Limited Partner's exercise of its Redemption right under Section 8.06 hereof;
(xxiii) the amendment and restatement of Exhibit A hereto to reflect accurately at all times the Capital Contributions and Percentage Interests of the Partners as the same are adjusted from time to time to the extent necessary to reflect redemptions, Capital Contributions, the issuance of Partnership Units, the admission of any Additional Limited Partner or any Substituted Limited Partner or otherwise, which amendment and restatement, notwithstanding anything in this Agreement to the contrary, shall not be deemed an amendment to this Agreement, as long as the matter or event being reflected in Exhibit A hereto otherwise is authorized by this Agreement;
(xxiv) the determination regarding whether a payment to a Partner who exercises its Redemption Right under Section 8.06 that is assumed by the General Partner will be paid in the form of the Cash Amount or the REIT Shares Amount, except as such determination may be limited by Section 8.06.
(xxv) the collection and receipt of revenues and income of the Partnership;
(xxvi) the registration of any class of securities of the Partnership under the Securities Act or the Exchange Act, and the listing of any debt securities of the Partnership on any exchange.
(xxvii) an election to dissolve the Partnership pursuant to Section 13.01(b) hereof; and
(xxviii) the taking of any action necessary or appropriate to enable the Corporation to qualify as a member or partnerREIT (so long as the Corporation desires to maintain its qualification as a REIT).
(b) Notwithstanding any other provision of this Agreement, the Operating Company Agreement, the Delaware Act or any applicable law, rule or regulation, each Each of the Limited Partners and the Assignees and each other Person who may acquire an interest agrees that, except as provided in Partnership Securities hereby (i) approvesSection 7.03 hereof, ratifies and confirms the execution, delivery and performance by the parties thereto of the Operating Company Agreement, any other limited liability company or partnership agreement of any other Group Member, the Underwriting Agreement, the Omnibus Agreement, the Contribution Agreement and the other agreements described in or filed as exhibits to the Registration Statement that are related to the transactions contemplated by the Registration Statement; (ii) agrees that the General Partner (on its own or through any officer of the Partnership) is authorized to execute, deliver and perform the above-mentioned agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership without any further act, approval or vote of the Partners Partners, notwithstanding any other provision of this Agreement, the Act or any applicable law, rule or regulation.
(c) At all times from and after the Assignees or date hereof, the General Partner may cause the Partnership to establish and maintain working capital and other Persons who may acquire an interest reserves in Partnership Securities; and (iii) agrees that the execution, delivery or performance by such amounts as the General Partner, any Group Member or any Affiliate of any of themin its sole and absolute discretion, of this Agreement or any agreement authorized or permitted deems appropriate and reasonable from time to time.
(d) In exercising its authority under this Agreement Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner (including the exercise General Partner) of any action taken (or not taken) by it. Except as may be provided in a separate written agreement between the Partnership and the Limited Partners, the General Partner and the Partnership shall not have liability to a Limited Partner under any circumstances as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner or any Affiliate of the General Partner of the rights accorded pursuant to Article XV)its authority under this Agreement provided, shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons has acted in good faith and pursuant to its authority under this Agreement (or any other agreements) or of any duty stated or implied by law or equityAgreement.
Appears in 1 contract
Samples: Limited Partnership Agreement (Retail Opportunity Investments Partnership, LP)
Management. (a) The General Partner shall conduct, direct and manage all activities of the Partnership. A. Except as otherwise expressly provided in this Agreement, all management powers over the business and affairs of the Partnership are and shall be exclusively vested in the General Partner, and no Limited Partner or Assignee shall have any right to participate in or exercise control or management power over the business and affairs of the Partnership. The General Partner may not be removed by the Limited Partners with or without cause. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or which are granted to the General Partner under any other provision of this Agreement, the General Partner, subject to Section 7.3the other provisions hereof including Sections 7.3 and 11.2, shall have full power and authority to do all things and on such terms as itdeemed necessary, in its sole discretionappropriate, may deem necessary convenient or appropriate desirable by it to conduct the business of the Partnership, to exercise all powers set forth in Section 2.5 3.2 and to effectuate the purposes set forth in Section 2.43.1, including the followingincluding, without limitation:
(i1) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money to permit the Partnership to make distributions to its Partners in such amounts as will permit the Company (so long as the Company has determined to qualify as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Section 4981 of the Code) and to make distributions to its stockholders sufficient to permit the Company to maintain REIT status), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtednessindebtedness (including the securing of same by mortgage, including indebtedness that is convertible into Partnership Securities, deed of trust or other lien or encumbrance on the Partnership’s assets) and the incurring of any other obligationsobligations it deems necessary for the conduct of the activities of the Partnership;
(ii2) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the PartnershipPartnership or which the General Partner agrees to cause the Partnership to file, the registration of any class of securities of the Partnership under the Securities Exchange Act, and the listing of any debt securities of the Partnership on any exchange and communication with any and all governmental authorities;
(iii3) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the Partnership or the merger or other combination of the Partnership with or into another Person (the matters described in this clause (iii) being subject, however, to any prior approval that may be required by Section 7.3)entity;
(iv4) the acquisition, ownership, disposition, lease, management, mortgage, pledge, encumbrance or hypothecation of any assets of the Partnership, and the use of the assets of the Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms it sees fit, including including, without limitation, the financing of the conduct of or the operations of the Partnership Group; subject to Section 7.6(a)General Partner or the Partnership, the lending of funds to other Persons (including other Group Members)including, without limitation, the General Partner or any Subsidiaries of the Partnership) and the repayment or guarantee of obligations of the Partnership Group Partnership, any of its Subsidiaries and any other Person in which it has an equity investment, and the making of capital contributions to any member its Subsidiaries, and specifically including entering into agreements incident to the acquisition of property through which the Partnership indemnifies the contributing party for tax liabilities incurred related to the Partnership’s disposition of the property or reducing the debt of the Partnership Groupallocable to the contributing party;
(v5) the negotiation, execution execution, and performance of any contracts, leases, conveyances or other instruments (including instruments that limit the liability of General Partner considers appropriate, useful or necessary to the Partnership under contractual arrangements to all or particular assets conduct of the Partnership, with ’s operations or the other party to the contract to have no recourse against implementation of the General Partner or its assets Partner’s powers under this Agreement, including contracting with contractors, developers, consultants, accountants, legal counsel, other than its interest in professional advisors and other agents and the payment of their expenses and compensation out of the Partnership, even if same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case)’s assets;
(vi6) the distribution of Partnership cashcash or other Partnership assets in accordance with this Agreement;
(vii7) the establishment of one or more divisions of the Partnership, the selection and dismissal of employees of the Partnership (including including, without limitation, employees having titles such as “president,” “vice president,” “secretary” and “treasurer”) ), and agents, outside attorneys, accountants, consultants and contractors and of the Partnership, the determination of their compensation and other terms of employment or hiring, including waivers of conflicts of interest and the payment of their expenses and compensation out of the Partnership’s assets;
(viii) 8) the maintenance of such insurance for the benefit of the Partnership Group Partnership, its assets and the Partners and directors and officers of the Partnership, the General Partner or the direct or indirect parent of the General Partner in such amounts, on such terms and of such types as it deems necessary or appropriate;
(ix9) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies ventures or other relationships that it deems desirable (including including, without limitation, the acquisition of interests in, and the contributions of property to, to any Group Member Subsidiary and any other Person in which it has an equity investment from time to time) subject ); provided, that, as long as the Company has determined to continue to qualify as a REIT, the restrictions set forth Partnership may not engage in Section 2.4any such formation, acquisition or contribution that could cause the Company to fail to qualify as a REIT;
(x10) the control of any matters affecting the rights and obligations of the Partnership, including the bringing settlement, compromise, submission to arbitration or any other form of dispute resolution, or abandonment of, any claim, cause of action, liability, debt or damages, due or owing to or from the Partnership, the commencement or defense of suits, legal proceedings, administrative proceedings, arbitration or other forms of dispute resolution, and defending the representation of actions at law the Partnership in all suits or in equity and otherwise engaging in the conduct legal proceedings, administrative proceedings, arbitrations or other forms of litigation and dispute resolution, the incurring of legal expense expense, and the settlement of claims and litigation;
(xi) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.8);
(xiii) unless restricted or prohibited by Section 5.7, the purchase, sale or other acquisition or disposition of Partnership Securities, or the issuance of additional options, rights, warrants and appreciation rights relating to Partnership Securities; and
(xiv11) the undertaking of any action in connection with the Partnership’s participation direct or indirect investment in any Group Member as a member Person (including, without limitation, contributing or partner.loaning Partnership funds to, incurring indebtedness on behalf of, or guarantying the obligations of any such Persons);
(b12) Notwithstanding any subject to the other provision of provisions in this Agreement, the Operating Company determination, in good faith, of the fair market value of any Partnership property distributed in kind using such reasonable method of valuation as it may adopt, provided, that such methods are otherwise consistent with requirements of this Agreement;
(13) the management, operation, leasing, landscaping, repair, alteration, demolition or improvement of any real property or improvements owned by the Delaware Act Partnership or any applicable lawSubsidiary of the Partnership or any Person in which the Partnership has made a direct or indirect equity investment;
(14) holding, rule managing, investing and reinvesting cash and other assets of the Partnership;
(15) the collection and receipt of revenues and income of the Partnership;
(16) the exercise, directly or regulationindirectly through any attorney-in-fact acting under a general or limited power of attorney, each of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(17) the exercise of any of the powers of the General Partner under this Agreement on behalf of, in connection with or jointly with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest;
(18) the exercise of any of the powers of the General Partner under this Agreement on behalf of any Person in which the Partnership does not have an interest pursuant to contractual or other arrangements with such Person;
(19) the making, execution and delivery of any and all deeds, leases, notes, deeds to secure debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases, documents, legal instruments or agreements, in writing, as may be necessary or appropriate in the judgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement;
(20) the issuance of additional Partnership Interests, as appropriate, in connection with the contribution of Additional Funds pursuant to Section 4.3;
(21) the distribution of cash to acquire Partnership Units held by a Limited Partner in connection with a Limited Partner’s exercise of its Redemption right under Section 8.6 hereof; and
(22) the amendment and restatement of Exhibit A hereto to reflect the Capital Contributions and Percentage Interests of the Partners as the same are adjusted from time to time to the extent necessary to reflect redemptions, Capital Contributions, the issuance of Partnership Units, the admission of any Additional Limited Partner or any Substituted Limited Partner or otherwise, which amendment and restatement, notwithstanding anything in this Agreement to the Assignees and each other Person who may acquire contrary, shall not be deemed an interest amendment to this Agreement, as long as the matter or event being reflected in Partnership Securities hereby (i) approves, ratifies and confirms the execution, delivery and performance Exhibit A hereto otherwise is authorized by the parties thereto this Agreement.
B. Each of the Operating Company Agreement, any other limited liability company or partnership agreement of any other Group Member, the Underwriting Agreement, the Omnibus Agreement, the Contribution Agreement and the other agreements described in or filed as exhibits to the Registration Statement that are related to the transactions contemplated by the Registration Statement; (ii) Limited Partners agrees that the General Partner (on its own or through any officer of the Partnership) is authorized to perform the actions authorized by Section 7.1.A. and to execute, deliver and perform the above-mentioned agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership without any further act, approval or vote of the Partners Partners, notwithstanding any other provisions of this Agreement (except as provided in Section 7.3 or 11.2), the Assignees Act or any applicable law, rule or regulation to the fullest extent permitted under the Act or other Persons who may acquire an interest in Partnership Securities; and (iii) agrees that the applicable law, rule or regulation. The execution, delivery or performance performance, the taking of any action or the failure to take any action, by the General Partner, any Group Member Partner or any Affiliate the Partnership of any of them, of this Agreement or any agreement authorized or permitted under this Agreement (including the exercise by the General Partner or any Affiliate of the General Partner of the rights accorded pursuant to Article XV), shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement (or any other agreements) or of any duty stated or implied by law or equity.
C. In addition to the authority granted to it in Section 7.1.A.(8), at all times from and after the date hereof, the General Partner may cause the Partnership to obtain and maintain (i) casualty, liability and other insurance on the properties of the Partnership and (ii) liability insurance for the Indemnities hereunder.
D. At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain working capital reserves in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
E. In exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner (including the Company, Communities GP and Communities LP) of any action taken (or not taken) by the General Partner. The General Partner and the Partnership shall not have liability to a Partner under this Agreement as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner pursuant to its authority under this Agreement.
F. Except as otherwise provided herein, to the extent the duties of the General Partner require expenditures of funds to be paid to third parties, the General Partner shall not have any obligations hereunder to make such payments except to the extent that Partnership funds are reasonably available to it for the performance of such duties, and nothing herein contained shall be deemed to authorize or require the General Partner, in its capacity as such, to expend its individual funds for payment to third parties or to undertake any individual liability or obligation on behalf of the Partnership.
G. The General Partner shall not permit the Partnership to engage in any “prohibited transaction” as defined in Section 857(b)(6)(B)(iii) of the Code.
Appears in 1 contract
Samples: Limited Partnership Agreement (Campus Crest Communities, Inc.)
Management. (a) The General Partner shall conduct, direct and manage all activities of the Partnership. Except as otherwise expressly provided in this Agreement, all management powers over the business and affairs of the Partnership are and shall be exclusively vested in the General Partner, and no Limited Partner or Assignee shall have any right to participate in or exercise control or management power over the business and affairs of the Partnership. The General Partner may not be removed by the Limited Partners with or without cause, except with the consent of the General Partner, which it may give or withhold at its sole and absolute discretion. In addition to the powers now or hereafter granted to a general partner of a limited partnership under applicable law or which are granted to the General Partner under any other provision of this Agreement, the General Partner, subject to Section 7.3, shall have full power and authority to do all things and on such terms as it, in its sole discretion, may deem deemed necessary or appropriate desirable by it to conduct the business of the Partnership, to exercise all powers set forth in Section 2.5 3.2 and to effectuate the purposes set forth in Section 2.43.1, including the followingincluding:
(i) the making of any expenditures, the lending or borrowing of moneymoney (including making prepayments on loans and borrowing money to permit the Partnership to make distributions to its Partners in such amounts as will permit the Company (so long as the Company desires to maintain its qualification as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Code Section 4981) and to make distributions to its shareholders in amounts sufficient to permit the Company to maintain its REIT status), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences evidence of indebtednessindebtedness (including the securing of the same by deed, including indebtedness that is convertible into Partnership Securitiesmortgage, deed of trust or other lien or encumbrance on the Partnership’s assets) and the incurring of any other obligationsobligations it deems necessary for the conduct of the activities of the Partnership;
(ii) the making of tax, regulatory and other filingsfilings or elections, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership;
(iii) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the Partnership (including the exercise or grant of any conversion, option, privilege, or subscription right or other right available in connection with any assets at any time held by the Partnership) or the merger or other combination of the Partnership with or into another Person entity (all of the matters described in this clause (iii) being subject, however, foregoing subject to any prior approval that may be only to the extent required by Section 7.3);
(iv) the mortgage, pledge, encumbrance or hypothecation of any assets of the Partnership, the use of the assets of the Partnership (including cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms that it sees fit, including the financing of the conduct of the operations of the Partnership Group; subject to Section 7.6(a)Partnership, the Company or any of the Partnership’s or the Company’s Subsidiaries, the lending of funds to other Persons (including other Group Members), the Subsidiaries of the Partnership and/or the Company) and the repayment or guarantee of obligations of the Partnership Group and its Subsidiaries and any other Person in which it has an equity investment, and the making of capital contributions to any member of the Partnership Groupits Subsidiaries;
(v) the management, operation, leasing, landscaping, repair, alteration, demolition, disposition or improvement of any real property or improvements owned by the Partnership or any Subsidiary of the Partnership;
(vi) the negotiation, execution execution, delivery and performance of any contracts, conveyances or other instruments (including instruments that limit the liability of General Partner considers useful or necessary or convenient to the Partnership under contractual arrangements to all or particular assets conduct of the Partnership, with ’s operations or the other party to the contract to have no recourse against implementation of the General Partner or its assets Partner’s powers under this Agreement, including contracting with consultants, accountants, legal counsel, other than its interest in professional advisors and other agents and the payment of their expenses and compensation out of the Partnership, even if same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case);
(vi) the distribution of Partnership cash’s assets;
(vii) the distribution of Partnership cash or other Partnership assets in accordance with this Agreement;
(viii) holding, managing, investing and reinvesting cash and other assets of the Partnership;
(ix) the collection and receipt of revenues and income of the Partnership;
(x) the establishment of one or more divisions of the Partnership, the selection and dismissal of employees of the Partnership (including employees having who may be designated as officers with titles such as “president,” “vice president,” “secretary” and “treasurer”) ” of the Partnership), and agents, outside attorneys, accountants, consultants and contractors of the Partnership, and the determination of their compensation and other terms of employment or hiring;
(viiixi) the maintenance of such insurance for the benefit of the Partnership Group and the Partners as it deems necessary or appropriate;
(ixxii) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventureslimited liability companies, corporations, limited liability companies entities that are treated as REITs, “taxable REIT subsidiaries” or as foreign corporations for federal income tax purposes, joint ventures or other relationships that it deems desirable (including the acquisition of interests in, and the contributions of property or the making of loans to, its or the Company’s Subsidiaries and any Group Member other Person in which it has an equity investment from time to time) subject time or the incurrence of indebtedness on behalf of such Persons or the guarantee of obligations of such Persons and the making of any tax, regulatory or other filing or election with respect to any of the restrictions set forth foregoing Persons); provided, that as long as the Company has determined to continue to qualify as a REIT, the Partnership may not engage in Section 2.4any such formation, acquisition or contribution that would cause the Company to fail to qualify as a REIT;
(xxiii) the control of any matters affecting the rights and obligations of the Partnership, including the bringing and defending settlement, compromise, submission to arbitration or any other form of actions at law dispute resolution, or in equity and otherwise engaging in abandonment of, any claim, cause of action, liability, debt or damages, due or owing to or from the conduct Partnership, the commencement or defense of litigation suits, legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, and the incurring representation of the Partnership in all suits or legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, the incurrence of legal expense expense, and the settlement of claims and litigation;
(xi) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.8);
(xiii) unless restricted or prohibited by Section 5.7, the purchase, sale or other acquisition or disposition of Partnership Securities, or the issuance of additional options, rights, warrants and appreciation rights relating to Partnership Securities; and
(xiv) the undertaking of any action in connection with the Partnership’s participation direct or indirect investment in any Group Member Subsidiary or any other Person (including the contribution or loan of funds by the Partnership to such Persons);
(xv) the determination of the fair market value of any Partnership property distributed in kind using such reasonable method of valuation as the General Partner may adopt;
(xvi) the enforcement of any rights against any Partner pursuant to representations, warranties, covenants and indemnities relating to such Partner’s contribution of property or assets to the Partnership;
(xvii) the exercise, directly or indirectly, through any attorney-in-fact acting under a general or limited power of attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(xviii) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(xix) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest pursuant to contractual or other arrangements with such Person;
(xx) the making, execution, delivery and performance of any and all deeds, leases, notes, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary, appropriate or convenient, in the judgment of the General Partner, for the accomplishment of any of the powers of the General Partner enumerated in this Agreement;
(xxi) the issuance of additional Partnership Units and other partnership interests, as appropriate, in connection with Capital Contributions by Additional Limited Partners and additional Capital Contributions by Partners pursuant to Article 4; and
(xxii) the taking of any action necessary (or appropriate by the General Partner, in its discretion) to enable the Company to qualify as a member or partnerREIT.
(b) Notwithstanding any other provision of this Agreement, the Operating Company Agreement, the Delaware Act or any applicable law, rule or regulation, each Each of the Limited Partners and the Assignees and each other Person who may acquire an interest in Partnership Securities hereby (i) approves, ratifies and confirms the execution, delivery and performance by the parties thereto of the Operating Company Agreement, any other limited liability company or partnership agreement of any other Group Member, the Underwriting Agreement, the Omnibus Agreement, the Contribution Agreement and the other agreements described in or filed as exhibits to the Registration Statement that are related to the transactions contemplated by the Registration Statement; (ii) agrees that the General Partner (on its own or through any officer of the Partnership) is authorized to execute, deliver and perform the above-mentioned agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership without any further act, approval or vote of the Partners or the Assignees or the Partners, notwithstanding any other Persons who may acquire an interest in Partnership Securities; and (iii) agrees that the execution, delivery or performance by the General Partner, any Group Member or any Affiliate of any of them, provision of this Agreement (except as provided in Section 7.3), the Act or any agreement authorized applicable law, rule or regulation, to the fullest extent permitted under this Agreement (including the exercise by the General Partner Act or any Affiliate of the General Partner of the rights accorded pursuant to Article XV)other applicable law, shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement (or any other agreements) or of any duty stated or implied by law or equity.rule or
Appears in 1 contract
Samples: Limited Partnership Agreement (Angel Oak Mortgage, Inc.)
Management. (a) The General Partner shall conduct, direct and manage all activities of the Partnership. A. Except as otherwise expressly provided in this Agreement, all management powers over the business and affairs of the Partnership shall be are exclusively vested in the General Partner, and no Limited Partner or Assignee shall have any right to participate in or exercise control or management power over the business and affairs of the Partnership. The General Partner may not be removed by the Limited Partners with or without cause, except with the consent of the General Partner. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or which are granted to the General Partner under any other provision of this Agreement, the General Partner, subject to the other provisions of this Agreement, including without limitation Section 7.3, shall have full power and authority to do all things and on such terms as it, in its sole discretion, may deem deemed necessary or appropriate desirable by it to conduct the business of the Partnership, to exercise all powers set forth in Section 2.5 3.2 and to effectuate the purposes set forth in Section 2.43.1, including the followingincluding, without limitation:
(i1) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money to permit the Partnership to make distributions to its Partners in such amounts as will permit the General Partner (so long as the General Partner has determined to qualify as a REIT) to avoid the incurrence of any federal income tax (including, for this purpose, any excise tax pursuant to Section 4981 of the Code) and to make distributions to its shareholders sufficient to permit the General Partner to maintain REIT status), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtednessindebtedness (including the securing of same by mortgage, including indebtedness that is convertible into Partnership Securities, deed of trust or other lien or encumbrance on the Partnership’s assets) and the incurring of any other obligationsobligations it deems necessary for the conduct of the activities of the Partnership;
(ii2) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership;
(iii3) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the Partnership or the merger or other combination of the Partnership with or into another Person (the matters described in this clause (iii) being subject, however, to any prior approval that may be required by Section 7.3)entity;
(iv4) the mortgage, pledge, encumbrance or hypothecation of any assets of the Partnership, and the use of the assets of the Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms it sees fit, including including, without limitation, the financing of the conduct of or the operations of the Partnership Group; subject to Section 7.6(a)General Partner or the Partnership, the lending of funds to other Persons (including other Group Members)including, without limitation, the General Partner (if necessary to permit the financing or capitalization of a Subsidiary of the Partnership) or any Subsidiaries of the Partnership) and the repayment or guarantee of obligations of the Partnership Group Partnership, any of its Subsidiaries and the making of capital contributions to any member of the Partnership Groupother Person in which it has an equity investment;
(v5) the negotiation, execution execution, and performance of any contracts, leases, conveyances or other instruments (including instruments that limit the liability of General Partner considers useful or necessary to the Partnership under contractual arrangements to all or particular assets conduct of the Partnership, with ’s operations or the other party to the contract to have no recourse against implementation of the General Partner or its assets other than its interest in the Partnership, even if same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case)Partner’s powers under this Agreement;
(vi6) the distribution of Partnership cashcash or other Partnership assets in accordance with this Agreement;
(vii7) the selection and dismissal of employees of the Partnership (including including, without limitation, employees having titles such as “president,” “vice president,” “secretary” and “treasurer”) ), and agents, outside attorneys, accountants, consultants and contractors and of the Partnership, the determination of their compensation and other terms of employment or hiring, including waivers of conflicts of interest and the payment of their expenses and compensation out of the Partnership’s assets;
(viii) 8) the maintenance of such insurance (including, without limitation, directors and officers insurance) for the benefit of the Partnership Group and the Partners as it deems necessary or appropriate;
(ix9) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies ventures or other relationships that it deems desirable (including including, without limitation, the acquisition of interests in, and the contributions of property to, to any Group Member Subsidiary and any other Person in which it has an equity investment from time to time) subject ); provided that, as long as the General Partner has determined to continue to qualify as a REIT, the restrictions set forth Partnership may not engage in Section 2.4any such formation, acquisition or contribution that would cause the General Partner to fail to qualify as a REIT;
(x10) the control of any matters affecting the rights and obligations of the Partnership, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigation and the incurring of legal expense and the settlement of claims and litigation;
(xi) , and the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.8);
(xiii) unless restricted or prohibited by Section 5.7, the purchase, sale or other acquisition or disposition of Partnership Securities, or the issuance of additional options, rights, warrants and appreciation rights relating to Partnership Securities; and
(xiv11) the undertaking of any action in connection with the Partnership’s participation direct or indirect investment in any Group Member as a member Person (including, without limitation, contributing or partner.loaning Partnership funds to, incurring indebtedness on behalf of, or guarantying the obligations of any such Persons);
(b12) Notwithstanding any subject to the other provision of provisions in this Agreement, the Operating Company determination of the fair market value of any Partnership property distributed in kind using such reasonable method of valuation as it may adopt, provided that such methods are otherwise consistent with requirements of this Agreement;
(13) the management, operation, leasing, landscaping, repair, alteration, demolition or improvement of any real property or improvements owned by the Delaware Act Partnership or any applicable law, rule or regulation, each Subsidiary of the Partners Partnership or any Person in which the Partnership has made a direct or indirect equity investment;
(14) holding, managing, investing and reinvesting cash and other assets of the Assignees Partnership;
(15) the collection and each receipt of revenues and income of the Partnership;
(16) the exercise, directly or indirectly through any attorney-in-fact acting under a general or limited power of attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(17) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person who may acquire in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(18) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest in Partnership Securities hereby pursuant to contractual or other arrangements with such Person;
(i19) approves, ratifies and confirms the execution, delivery and performance by the parties thereto maintenance of the Operating Company AgreementPartnership’s books and records; and
(20) the making, any other limited liability company or partnership agreement execution and delivery of any other Group Memberand all deeds, leases, notes, deeds to secure debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate in the Underwriting judgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement, .
B. Each of the Omnibus Agreement, the Contribution Agreement and the other agreements described in or filed as exhibits to the Registration Statement that are related to the transactions contemplated by the Registration Statement; (ii) Limited Partners agrees that the General Partner (on its own or through any officer of the Partnership) is authorized to execute, deliver and perform the above-mentioned agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership without any further act, approval or vote of the Partners Partners, notwithstanding any other provisions of this Agreement (except as provided in Section 7.3), the Act or the Assignees any applicable law, rule or the other Persons who may acquire an interest in Partnership Securities; and (iii) agrees that the regulation. The execution, delivery or performance by the General Partner, any Group Member Partner or any Affiliate the Partnership of any of them, of this Agreement or any agreement authorized or permitted under this Agreement (including the exercise by the General Partner or any Affiliate of the General Partner of the rights accorded pursuant to Article XV), shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement (or any other agreements) or of any duty stated or implied by law or equity.
C. At all times from and after July 7, 2015, the General Partner may cause the Partnership to obtain and maintain (i) casualty, liability and other insurance on the properties of the Partnership and (ii) liability insurance for the Indemnitees hereunder.
D. At all times from and after July 7, 2015, the General Partner may cause the Partnership to establish and maintain working capital reserves in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
E. Except as provided in this Agreement with respect to the qualification of the General Partner as a REIT and as may be provided in a separate written agreement between the Partnership and a Limited Partner, in exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner (including the General Partner) of any action taken by the General Partner. Except as provided in this Agreement with respect to the qualification of the General Partner as a REIT and as may be provided in a separate written agreement between the Partnership and a Limited Partner, the General Partner and the Partnership shall not have liability to a Partner under any circumstances as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner pursuant to its authority under this Agreement.
Appears in 1 contract
Samples: Limited Partnership Agreement (Seritage Growth Properties)
Management. (a) The General Partner shall conduct, direct and manage all activities of the Partnership. Except as otherwise expressly provided in this Agreement, all management powers over the business and affairs of the Partnership are and shall be exclusively vested in the General Partner, and no Limited Partner or Assignee shall have any right to participate in or exercise control or management power over the business and affairs of the Partnership. The General Partner may not be removed by the Limited Partners with or without cause, except with the consent of the General Partner. In addition to the powers now or hereafter granted to a general partner of a limited partnership under applicable law or which that are granted to the General Partner under any other provision of this Agreement, the General Partner, subject to the other provisions hereof including Section 7.37.03 hereof, shall have full power and authority to do all things and on such terms as it, in its sole discretion, may deem deemed necessary or appropriate desirable by it to conduct the business of the Partnership, to exercise all powers set forth in Section 2.5 3.02 hereof and to effectuate the purposes set forth in Section 2.43.01 hereof, including the followingincluding, without limitation:
(i) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money or selling assets to permit the Partnership to make distributions to its Partners in such amounts as will permit the General Partner (so long as the General Partner desires to maintain or restore its qualification as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Code Section 4981) and to make distributions to its stockholders sufficient to permit the General Partner to maintain or restore REIT qualification or otherwise to satisfy the REIT Requirements), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtednessindebtedness (including the securing of same by deed to secure debt, including indebtedness that is convertible into Partnership Securitiesmortgage, deed of trust or other lien or encumbrance on the Partnership’s assets) and the incurring of any other obligationsobligations that it deems necessary for the conduct of the activities of the Partnership;
(ii) the making of tax, regulatory and other filingsfilings or elections, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership, the registration of any class of securities of the Partnership under the Securities Act or the Exchange Act and the listing of any debt securities of the Partnership on any exchange;
(iii) subject to Section 11.02 hereof, the acquisition, dispositionsale, mortgagelease, pledgetransfer, encumbranceexchange or other disposition of any, hypothecation all or exchange of any or substantially all of the assets of the Partnership (including, but not limited to, the exercise or grant of any conversion, option, privilege or subscription right or any other right available in connection with any assets at any time held by the Partnership) or the merger merger, consolidation, reorganization or other combination of the Partnership with or into another Person (the matters described in this clause (iii) being subject, however, to any prior approval that may be required by Section 7.3)entity;
(iv) the mortgage, pledge, encumbrance or hypothecation of any assets of the Partnership, the use of the assets of the Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms that it sees fit, including including, without limitation, the financing of the operations and activities of the General Partner, the Partnership or any of the Partnership’s Subsidiaries, the lending of funds to other Persons (including, without limitation, the Partnership’s Subsidiaries) and the repayment of obligations of the Partnership, its Subsidiaries and any other Person in which the Partnership has an equity investment, and the making of capital contributions to and equity investments in the Partnership’s Subsidiaries;
(v) the use of the assets of the Partnership (including, without limitation, cash on hand) for any purpose consistent with the terms of this Agreement and on any terms it sees fit, including, without limitation, the financing of the conduct of the operations of the General Partner, the Partnership Group; subject to Section 7.6(a)or any of the Partnership’s Subsidiaries, the lending of funds to other Persons (including other Group Members)including, without limitation, the General Partner and its Subsidiaries and the Partnership’s Subsidiaries) and the repayment or guarantee of obligations of the Partnership Group and its Subsidiaries and any other Person in which the Partnership has an equity investment and the making of capital contributions to its Subsidiaries;
(vi) the management, operation, leasing, landscaping, repair, alteration, demolition, replacement or improvement of any member Property, including, without limitation, any Contributed Property, or other asset of the Partnership Groupor any Subsidiary, whether pursuant to a Services Agreement or otherwise;
(vvii) the negotiation, execution execution, delivery and performance of any contracts, leases, conveyances or other instruments (including instruments that limit the liability of General Partner considers useful or necessary to the Partnership under contractual arrangements to all or particular assets conduct of the Partnership, with ’s operations or the other party to the contract to have no recourse against implementation of the General Partner or its assets Partner’s powers under this Agreement, including contracting with contractors, developers, consultants, accountants, legal counsel, other than its interest in professional advisors and other agents and the payment of their expenses and compensation out of the Partnership, even if same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case)’s assets;
(viviii) the distribution of Partnership cashcash or other Partnership assets in accordance with this Agreement, the holding, management, investment and reinvestment of cash and other assets of the Partnership and the collection and receipt of revenues, rents and income of the Partnership;
(vii) the selection and dismissal of employees (including employees having titles such as “president,” “vice president,” “secretary” and “treasurer”) and agents, outside attorneys, accountants, consultants and contractors and the determination of their compensation and other terms of employment or hiring;
(viiiix) the maintenance of such insurance for the benefit of the Partnership Group and the Partners as it the General Partner deems necessary or appropriate, including, without limitation, (i) casualty, liability and other insurance on the Properties and (ii) liability insurance for the Indemnitees hereunder;
(ixx) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventureslimited liability companies, REITs, corporations, limited liability companies entities that are treated as REITs, “taxable REIT subsidiaries” or foreign corporations for federal income tax purposes, joint ventures or other relationships that the General Partner deems desirable (including including, without limitation, the acquisition of interests in, and the contributions of property to, any Group Member Subsidiary and any other Person in which it has an equity investment from time to time); provided, however, that as long as the General Partner has determined to continue to qualify as a REIT, the General Partner may not engage in any such formation, acquisition or contribution that would cause it to fail to qualify as a REIT within the meaning of Code Section 856(a) subject (so long as the General Partner desires to the restrictions set forth in Section 2.4maintain its qualification as a REIT);
(xxi) the filing of applications, communicating and otherwise dealing with any and all governmental agencies having jurisdiction over, or in any way affecting, the Partnership’s assets or any other aspect of the Partnership business;
(xii) the control of any matters affecting the rights and obligations of the Partnership, including the bringing settlement, compromise, submission to arbitration or any other form of dispute resolution, or abandonment, of any claim, cause of action, liability, debt or damages, due or owing to or from the Partnership, the commencement or defense of suits, legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, and defending the representation of actions at law the Partnership in all suits or in equity and otherwise engaging in the conduct legal proceedings, administrative proceedings, arbitrations or other forms of litigation and dispute resolution, the incurring of legal expense expense, and the settlement of claims and litigation;
(xi) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.8);
(xiii) unless restricted or prohibited by Section 5.7, the purchase, sale or other acquisition or disposition of Partnership Securities, or the issuance of additional options, rights, warrants and appreciation rights relating to Partnership Securities; and
(xiv) the undertaking of any action in connection with the Partnership’s participation direct or indirect investment in any Group Member Subsidiary or any other Person (including, without limitation, the contribution or loan of funds by the Partnership to such Persons);
(xiv) except as otherwise specifically set forth in this Agreement, the determination of the fair market value of any Partnership property distributed in-kind using such reasonable method of valuation as it may adopt; provided, that such methods are otherwise consistent with the requirements of this Agreement;
(xv) the enforcement of any rights against any Partner pursuant to representations, warranties, covenants and indemnities relating to such Partner’s contribution of property or assets to the Partnership;
(xvi) the exercise, directly or indirectly, through any attorney-in-fact acting under a general or limited power of attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(xvii) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(xviii) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest, pursuant to contractual or other arrangements with such Person;
(xix) the making, execution, delivery and performance of any and all deeds, leases, notes, deeds to secure Debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate in the judgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement;
(xx) the issuance of additional Partnership Units, as appropriate and in the General Partner’s sole and absolute discretion, in connection with Capital Contributions by Additional Limited Partners and additional Capital Contributions by Partners pursuant to Article IV hereof;
(xxi) the selection and dismissal of General Partner Employees (including, without limitation, employees having titles or offices such as president, vice president, secretary and treasurer), and agents, outside attorneys, accountants, consultants and contractors of the Partnership or the General Partner, the determination of their compensation and other terms of employment or hiring and the delegation to any such General Partner Employee the authority to conduct the business of the Partnership in accordance with the terms of this Agreement;
(xxii) the distribution of cash to acquire Partnership Units held by a Limited Partner in connection with a Limited Partner’s exercise of its Redemption right under Section 8.06 hereof;
(xxiii) the amendment and restatement of Exhibit A hereto to reflect accurately at all times the Capital Contributions and Percentage Interests of the Partners as the same are adjusted from time to time to the extent necessary to reflect redemptions, Capital Contributions, the issuance of Partnership Units, the admission of any Additional Limited Partner or any Substituted Limited Partner or otherwise, which amendment and restatement, notwithstanding anything in this Agreement to the contrary, shall not be deemed an amendment to this Agreement, as long as the matter or event being reflected in Exhibit A hereto otherwise is authorized by this Agreement;
(xxiv) the determination regarding whether a payment to a Partner who exercises its Redemption Right under Section 8.06 hereof that is assumed by the General Partner will be paid in the form of the Cash Amount or the REIT Shares Amount, except as such determination may be limited by Section 8.06 hereof;
(xxv) an election to dissolve the Partnership pursuant to Section 13.01(d) hereof;
(xxvi) doing any and all acts and things necessary or prudent to ensure that the Partnership will not be classified as a member “publicly traded partnership” taxable as a corporation under Code Section 7704; and
(xxvii) the taking of any action necessary or partnerappropriate to enable the General Partner to qualify as a REIT (so long as the General Partner desires to maintain its qualification as a REIT).
(b) Notwithstanding any other provision of this Agreement, the Operating Company Agreement, the Delaware Act or any applicable law, rule or regulation, each Each of the Limited Partners and the Assignees and each other Person who may acquire an interest agrees that, except as provided in Partnership Securities hereby (i) approvesSection 7.03 hereof, ratifies and confirms the execution, delivery and performance by the parties thereto of the Operating Company Agreement, any other limited liability company or partnership agreement of any other Group Member, the Underwriting Agreement, the Omnibus Agreement, the Contribution Agreement and the other agreements described in or filed as exhibits to the Registration Statement that are related to the transactions contemplated by the Registration Statement; (ii) agrees that the General Partner (on its own or through any officer of the Partnership) is authorized to execute, deliver and perform the above-mentioned agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership without any further act, approval or vote of the Partners Partners, notwithstanding any other provision of this Agreement, the Act or any applicable law, rule or regulation.
(c) At all times from and after the Assignees or date hereof, the General Partner may cause the Partnership to establish and maintain working capital and other Persons who may acquire an interest reserves in Partnership Securities; and (iii) agrees that the execution, delivery or performance by such amounts as the General Partner, any Group Member or any Affiliate of any of themin its sole and absolute discretion, of this Agreement or any agreement authorized or permitted deems appropriate and reasonable from time to time.
(d) In exercising its authority under this Agreement Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner (including the exercise General Partner) of any action taken (or not taken) by it. Except as may be provided in a separate written agreement between the Partnership and the Limited Partners, the General Partner and the Partnership shall not have liability to a Limited Partner under any circumstances as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner or any Affiliate of the General Partner of the rights accorded pursuant to Article XV)its authority under this Agreement provided, shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons has acted in good faith and pursuant to its authority under this Agreement (or any other agreements) or of any duty stated or implied by law or equityAgreement.
Appears in 1 contract
Samples: Agreement of Limited Partnership (Schottenstein Realty Trust, Inc.)
Management. (a) The General Partner shall conduct, direct and manage all activities of the Partnership. A. Except as otherwise expressly provided in this Agreement, all management powers over the business and affairs of the Partnership shall be are exclusively vested in the General Partner, and no Limited Partner or Assignee shall have any right to participate in or exercise control or management power over the business and affairs of the Partnership; provided, however, that the General Partner may be removed by the holders of a majority of the Class A Common Units, with or without cause, such removal effective upon the delivery of written notice thereof by the Limited Partners to the General Partner. In addition to the powers now or hereafter granted a general partner of a limited partnership under the Act and other applicable law or which are granted to the General Partner under any other provision of this Agreement, the General Partner, subject to the other provisions hereof including Section 7.3, shall have full power and authority to do all things and on such terms as it, in its sole discretion, may deem deemed necessary or appropriate desirable by it to conduct the business of the Partnership, to exercise all powers set forth in Section 2.5 3.2 and to effectuate the purposes set forth in Section 2.43.1, including the followingincluding, without limitation:
(i) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money to permit the Partnership to make distributions to its Partners in such amounts as will permit AMB, in its capacity as the sole general partner of the Operating Partnership and as the indirect owner of 100% of the equity interests of the General Partner (for so long as AMB has determined to qualify as a REIT), to avoid the payment of any Federal income tax (including, for this purpose, any excise tax pursuant to Section 4981 of the Code) and to make distributions to its stockholders sufficient to permit AMB to maintain REIT status), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtednessindebtedness (including the securing of same by mortgage, including indebtedness that is convertible into Partnership Securities, deed of trust or other lien or encumbrance on all or any of the Partnership's assets) and the incurring of any other obligationsobligations it deems necessary for the conduct of the activities of the Partnership;
(ii) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership;
(iii) subject to the provisions of Section 7.3.D, the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the Partnership or the merger or other combination of the Partnership with or into another Person (the matters described in this clause (iii) being subject, however, to any prior approval that may be required by Section 7.3)entity;
(iv) the mortgage, pledge, encumbrance or hypothecation of all or any assets of the Partnership, and the use of the assets of the Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms it sees fit, including including, without limitation, the financing of the conduct of or the operations of the Partnership Group; subject to Section 7.6(a)General Partner or the Partnership, the lending of funds to other Persons (including other Group Members)including, without limitation, the General Partner (if necessary to permit the financing or capitalization of a subsidiary of the General Partner or the Partnership) and any Subsidiaries of the Partnership) and the repayment or guarantee of obligations of the Partnership Group Partnership, any of its Subsidiaries and the making of capital contributions to any member of the Partnership Groupother Person in which it has an equity investment;
(v) the negotiation, execution execution, and performance of any contracts, leases, conveyances or other instruments (including instruments that limit the liability of General Partner considers useful or necessary to the Partnership under contractual arrangements to all or particular assets conduct of the Partnership, with 's operations or the other party to the contract to have no recourse against implementation of the General Partner or its assets other than its interest in the Partnership, even if same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case)Partner's powers under this Agreement;
(vi) the distribution of Partnership cashcash or other Partnership assets in accordance with this Agreement;
(vii) the selection and dismissal of employees of the Partnership (including including, without limitation, employees having titles such as “"president,” “" "vice president,” “" "secretary” " and “"treasurer”) "), and agents, outside attorneys, accountants, consultants and contractors and of the Partnership, the determination of their compensation and other terms of employment or hiring, including waivers of conflicts of interest and the payment of their expenses and compensation out of the Partnership's assets;
(viii) the maintenance of such insurance for the benefit of the Partnership Group and the Partners as it deems necessary or appropriate;
(ix) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies ventures or other relationships that it deems desirable (including including, without limitation, the acquisition of interests in, and the contributions of property to, to any Group Member Subsidiary and any other Person in which it has an equity investment from time to time) subject ); provided that as long as AMB, in its capacity as the indirect owner of 100% of the equity interests of the General Partner and as the sole general partner of the Operating Partnership, has determined to continue to qualify as a REIT, the restrictions set forth Partnership may not engage in Section 2.4any such formation, acquisition or contribution that would cause AMB to fail to qualify as a REIT;
(x) the control of any matters affecting the rights and obligations of the Partnership, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigation and the incurring of legal expense and the settlement of claims and litigation;
(xi) , and the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.8);
(xiii) unless restricted or prohibited by Section 5.7, the purchase, sale or other acquisition or disposition of Partnership Securities, or the issuance of additional options, rights, warrants and appreciation rights relating to Partnership Securities; and
(xivxi) the undertaking of any action in connection with the Partnership’s participation 's direct or indirect investment in any Group Member as a member Person (including, without limitation, contributing or partner.loaning Partnership funds to, incurring indebtedness on behalf of, or guarantying the obligations of any such Persons);
(bxii) Notwithstanding any subject to the other provision of provisions in this Agreement, the Operating Company determination of the fair market value of any Partnership property distributed in kind using such reasonable method of valuation as it may adopt; provided that, such methods are otherwise consistent with requirements of this Agreement;
(xiii) the management, operation, leasing, landscaping, repair, alteration, demolition or improvement of any real property or improvements owned by the Delaware Act Partnership or any applicable law, rule or regulation, each Subsidiary of the Partners Partnership or any Person in which the Partnership has made a direct or indirect equity investment;
(xiv) holding, managing, investing and reinvesting cash and other assets of the Assignees Partnership;
(xv) the collection and each receipt of revenues and income of the Partnership;
(xvi) the exercise, directly or indirectly through any attorney-in-fact acting under a general or limited power of attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(xvii) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person who may acquire in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(xviii) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest interest, pursuant to contractual or other arrangements with such Person;
(xix) the making, execution and delivery of any and all deeds, leases, notes, deeds to secure debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or other agreements in Partnership Securities hereby writing necessary or appropriate in the judgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement; and
(ixx) approves, ratifies and confirms the execution, delivery and performance making of loans by the parties thereto Partnership to its Partners, for any purpose, provided that such loans be upon arm's-length terms.
B. Each of the Operating Company Agreement, any other limited liability company or partnership agreement of any other Group Member, the Underwriting Agreement, the Omnibus Agreement, the Contribution Agreement and the other agreements described in or filed as exhibits to the Registration Statement that are related to the transactions contemplated by the Registration Statement; (ii) Limited Partners agrees that the General Partner (on its own or through any officer of the Partnership) is authorized to execute, deliver and perform the above-mentioned agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership without any further act, approval or vote of the Partners Partners, notwithstanding any other provisions of this Agreement (except as provided in Section 7.3), the Act or the Assignees any applicable law, rule or the other Persons who may acquire an interest in Partnership Securities; and (iii) agrees that the regulation. The execution, delivery or performance by the General Partner, any Group Member Partner or any Affiliate the Partnership of any of them, of this Agreement or any agreement authorized or permitted under this Agreement (including the exercise by the General Partner or any Affiliate of the General Partner of the rights accorded pursuant to Article XV), shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement (or any other agreements) or of any duty stated or implied by law or equity.
C. At all times from and after the date hereof, the General Partner may cause the Partnership to obtain and maintain (i) casualty, liability and other insurance (including, without limitation, earthquake insurance) on the properties of the Partnership and (ii) liability insurance for the Indemnities hereunder.
D. At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain working capital and other reserves in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
E. In exercising its authority under this Agreement, the General Partner may, but other than as set forth in the following sentence and as expressly set forth in the agreements listed on Exhibit H hereto, shall be under no obligation to, take into account the tax consequences to any Partner (including the General Partner) of any action taken by the General Partner. The General Partner and the Partnership shall not have liability to a Limited Partner under any circumstances as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner pursuant to its authority under this Agreement.
F. Except as otherwise provided herein, to the extent the duties of the General Partner require expenditures of funds to be paid to third parties, the General Partner shall not have any obligations hereunder except to the extent that Partnership funds are reasonably available to it for the performance of such duties, and nothing herein contained shall be deemed to authorize or require the General Partner, in its capacity as such, to expend its individual funds for payment to third parties or to undertake any individual liability or obligation on behalf of the Partnership.
Appears in 1 contract
Samples: Agreement of Limited Partnership (Amb Property Corp)
Management. (a) The General Partner shall conduct, direct and manage all activities of the Partnership. A. Except as otherwise expressly provided in this Agreement, all management powers over the business and affairs of the Partnership shall be are exclusively vested in the General Partner, and no Limited Partner or Assignee shall have any right to participate in or exercise control or management power over the business and affairs of the Partnership. The General Partner may not be removed by the Limited Partners with or without cause, except with the consent of the General Partner. In addition to the powers now or hereafter granted a general partner of a limited partnership under the Act and other applicable law or which are granted to the General Partner under any other provision of this Agreement, the General Partner, subject to the other provisions hereof including Section 7.3, shall have full power and authority to do all things and on such terms as it, in its sole discretion, may deem deemed necessary or appropriate desirable by it to conduct the business of the Partnership, to exercise all powers set forth in Section 2.5 3.2 hereof and to effectuate the purposes set forth in Section 2.43.1 hereof, including the followingincluding, without limitation:
(i1) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money to permit the Partnership to make distributions to its Partners in such amounts as will permit the General Partner (so long as the General Partner has determined to qualify as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Section 4981 of the Code) and to make distributions to its stockholders sufficient to permit the General Partner to maintain REIT status), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtednessindebtedness (including the securing of same by mortgage, including indebtedness that is convertible into Partnership Securities, deed of trust or other lien or encumbrance on all or any of the Partnership's assets) and the incurring of any other obligationsobligations it deems necessary for the conduct of the activities of the Partnership;
(ii2) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership;
(iii3) subject to the provisions of Section 7.3.D hereof, the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the Partnership or the merger or other combination of the Partnership with or into another Person (the matters described in this clause (iii) being subject, however, to any prior approval that may be required by Section 7.3)entity;
(iv4) the mortgage, pledge, encumbrance or hypothecation of all or any assets of the Partnership, and the use of the assets of the Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms it sees fit, including including, without limitation, the financing of the conduct of or the operations of the Partnership Group; subject to Section 7.6(a)General Partner or the Partnership, the lending of funds to other Persons (including other Group Members)including, without limitation, the General Partner (if necessary to permit the financing or capitalization of a subsidiary of the General Partner or the Partnership) and any Subsidiaries of the Partnership) and the repayment or guarantee of obligations of the Partnership Group Partnership, any of its Subsidiaries and the making of capital contributions to any member of the Partnership Groupother Person in which it has an equity investment;
(v5) the negotiation, execution execution, and performance of any contracts, leases, conveyances or other instruments (including instruments that limit the liability of General Partner considers useful or necessary to the Partnership under contractual arrangements to all or particular assets conduct of the Partnership, with 's operations or the other party to the contract to have no recourse against implementation of the General Partner or its assets other than its interest in the Partnership, even if same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case)Partner's powers under this Agreement;
(vi6) the distribution of Partnership cashcash or other Partnership assets in accordance with this Agreement;
(vii7) the selection and dismissal of employees of the Partnership (including including, without limitation, employees having titles such as “"president,” “" "vice president,” “" "secretary” " and “"treasurer”) "), and agents, outside attorneys, accountants, consultants and contractors and of the Partnership, the determination of their compensation and other terms of employment or hiring, including waivers of conflicts of interest and the payment of their expenses and compensation out of the Partnership's assets;
(viii) 8) the maintenance of such insurance for the benefit of the Partnership Group and the Partners as it deems necessary or appropriate;
(ix9) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies ventures or other relationships that it deems desirable (including including, without limitation, the acquisition of interests in, and the contributions of property to, to any Group Member Subsidiary and any other Person in which it has an equity investment from time to time) subject ); provided that, as long as the General Partner has -------- ---- determined to continue to qualify as a REIT, the restrictions set forth Partnership may not engage in Section 2.4any such formation, acquisition or contribution that would cause the General Partner to fail to qualify as a REIT;
(x10) the control of any matters affecting the rights and obligations of the Partnership, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigation and the incurring of legal expense and the settlement of claims and litigation;
(xi) , and the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.8);
(xiii) unless restricted or prohibited by Section 5.7, the purchase, sale or other acquisition or disposition of Partnership Securities, or the issuance of additional options, rights, warrants and appreciation rights relating to Partnership Securities; and
(xiv11) the undertaking of any action in connection with the Partnership’s participation 's direct or indirect investment in any Group Member as a member Person (including, without limitation, contributing or partner.loaning Partnership funds to, incurring indebtedness on behalf of, or guarantying the obligations of any such Persons);
(b12) Notwithstanding any subject to the other provision of provisions in this Agreement, the Operating Company determination of the fair market value of any Partnership property distributed in kind using such reasonable method of valuation as it may adopt, provided that such methods are -------- ---- otherwise consistent with requirements of this Agreement;
(13) the management, operation, leasing, landscaping, repair, alteration, demolition or improvement of any real property or improvements owned by the Delaware Act Partnership or any applicable law, rule or regulation, each Subsidiary of the Partners Partnership or any Person in which the Partnership has made a direct or indirect equity investment;
(14) holding, managing, investing and reinvesting cash and other assets of the Assignees Partnership;
(15) the collection and each receipt of revenues and income of the Partnership;
(16) the exercise, directly or indirectly through any attorney-in-fact acting under a general or limited power of attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(17) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person who may acquire an interest in which the Partnership Securities hereby has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(i18) approves, ratifies and confirms the execution, delivery and performance by the parties thereto exercise of any of the Operating Company Agreement, any other limited liability company or partnership agreement powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest, pursuant to contractual or other Group Memberarrangements with such Person; and
(19) the making, the Underwriting Agreementexecution and delivery of any and all deeds, the Omnibus Agreementleases, the Contribution Agreement and the notes, deeds to secure debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or other agreements described in writing necessary or filed as exhibits to appropriate in the Registration Statement that are related to judgment of the transactions contemplated by General Partner for the Registration Statement; (ii) accomplishment of any of the powers of the General Partner enumerated in this Agreement.
B. Each of the Limited Partners agrees that the General Partner (on its own or through any officer of the Partnership) is authorized to execute, deliver and perform the above-mentioned agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership without any further act, approval or vote of the Partners partners, notwithstanding any other provisions of this Agreement (except as provided in Section 7.3), the Act or the Assignees any applicable law, rule or the other Persons who may acquire an interest in Partnership Securities; and (iii) agrees that the regulation. The execution, delivery or performance by the General Partner, any Group Member Partner or any Affiliate the Partnership of any of them, of this Agreement or any agreement authorized or permitted under this Agreement (including the exercise by the General Partner or any Affiliate of the General Partner of the rights accorded pursuant to Article XV), shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement (or any other agreements) or of any duty stated or implied by law or equity.
C. At all times from and after the date hereof, the General Partner may cause the Partnership to obtain and maintain (i) casualty, liability and other insurance (including, without limitation, earthquake insurance) on the properties of the Partnership and (ii) liability insurance for the Indemnities hereunder.
D. At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain working capital and other reserves in such amounts as the General Partner, in it sole and absolute discretion, deems appropriate and reasonable from time to time.
E. In exercising its authority under this Agreement, the General Partner may, but, other than as set forth in the following sentence and to Section 11.2.D, shall be under no obligation to, take into account the tax consequences to any Partner (including the General Partner) of any action taken by the General Partner. The General Partner, on behalf of the Partnership, shall use commercially reasonable efforts to cooperate with the Limited Partners to minimize any taxes payable in connection with any repayment, refinancing, replacement or restructuring of Debt, or any sale, exchange or any other disposition of assets, of the Partnership. The General Partner and the Partnership shall not have liability to a Limited Partner under any circumstances as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner pursuant to its authority under this Agreement.
F. Except as otherwise provided herein, to the extent the duties of the General Partner require expenditures of funds to be paid to third parties, the General Partner shall not have any obligations hereunder except to the extent that Partnership funds are reasonably available to it for the performance of such duties, and nothing herein contained shall be deemed to authorize or require the General Partner, in its capacity as such, to expend its individual funds for payment to third parties or to undertake any individual liability or obligation on behalf of the Partnership.
Appears in 1 contract
Management. (a) The General Partner shall conduct, direct and manage all activities of the Partnership. A. Except as otherwise expressly provided in this Agreement, all management powers over the business and affairs of the Partnership are and shall be exclusively vested in the General Partner, and no Limited Partner or Assignee shall have any right to participate in or exercise control or management power over the business and affairs of the Partnership. The General Partner may not be removed by the Partners with or without cause, except with the consent of the General Partner. In addition to the powers now or hereafter granted to a general partner of a limited partnership under applicable law or which that are granted to the General Partner under any other provision of this Agreement, the General Partner, subject to the other provisions hereof including Section 7.3, shall have full power and authority to do all things and on such terms as it, in its sole discretion, may deem deemed necessary or appropriate desirable by it to conduct the business of the Partnership, to exercise all powers set forth in Section 2.5 3.2 hereof and to effectuate the purposes set forth in Section 2.43.1 hereof, including the followingincluding, without limitation:
(i1) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money or selling assets to permit the Partnership to make distributions to its Partners in such amounts as will permit the Parent REIT (so long as the Parent REIT desires to maintain or restore its status as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Code Section 4981) and to make distributions sufficient to permit the Parent REIT to maintain or restore REIT status or otherwise to satisfy the REIT Requirements), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtednessindebtedness (including the securing of same by deed to secure debt, including indebtedness that is convertible into Partnership Securitiesmortgage, deed of trust or other lien or encumbrance on the Partnership’s assets) and the incurring of any other obligationsobligations that it deems necessary for the conduct of the activities of the Partnership;
(ii2) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership;
(iii3) the acquisition, dispositionsale, mortgagelease, pledgetransfer, encumbranceexchange or other disposition of any, hypothecation all or exchange of any or substantially all of the assets of the Partnership (including, but not limited to, the exercise or grant of any conversion, option, privilege or subscription right or any other right available in connection with any assets at any time held by the Partnership) or the merger merger, consolidation, reorganization or other combination of the Partnership with or into another Person (the matters described in this clause (iii) being subject, however, to any prior approval that may be required by Section 7.3)entity;
(iv4) the mortgage, pledge, encumbrance or hypothecation of any assets of the Partnership, the use of the assets of the Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms that it sees fit, including including, without limitation, the financing of the conduct operations and activities of the operations Parent REIT, the General Partner, the Partnership or any of the Partnership Group; subject to Section 7.6(a)Partnership’s Subsidiaries, the lending of funds to other Persons (including other Group Members)including, without limitation, the Partnership’s Subsidiaries) and the repayment or guarantee of obligations of the Partnership, its Subsidiaries and any other Person in which the Partnership Group has an equity investment, and the making of capital contributions to and equity investments in the Partnership’s Subsidiaries;
(5) the management, operation, leasing, landscaping, repair, alteration, demolition, replacement or improvement of any member Property, including, without limitation, any Contributed Property, or other asset of the Partnership Groupor any Subsidiary, whether pursuant to a Services Agreement or otherwise;
(v6) the negotiation, execution and performance of any contracts, leases, conveyances or other instruments (including instruments that limit the liability General Partner considers useful or necessary to the conduct of the Partnership’s operations or the implementation of the General Partner’s powers under this Agreement, including contracting with contractors, developers, consultants, accountants, legal counsel, other professional advisors and other agents and the payment of their expenses and compensation out of the Partnership’s assets;
(7) the distribution of Partnership under contractual arrangements to all cash or particular other Partnership assets in accordance with this Agreement, the holding, management, investment and reinvestment of cash and other assets of the Partnership, with and the other party to the contract to have no recourse against the General Partner or its assets other than its interest in collection and receipt of revenues, rents and income of the Partnership, even if same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case);
(vi) the distribution of Partnership cash;
(vii) the selection and dismissal of employees (including employees having titles such as “president,” “vice president,” “secretary” and “treasurer”) and agents, outside attorneys, accountants, consultants and contractors and the determination of their compensation and other terms of employment or hiring;
(viii) 8) the maintenance of such insurance for the benefit of the Partnership Group and the Partners as it deems necessary or appropriate, including, without limitation, (i) casualty, liability and other insurance on the Properties and (ii) liability insurance for the Indemnitees hereunder;
(ix9) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies companies, joint ventures or other relationships that it deems desirable (including including, without limitation, the acquisition of interests in, and the contributions of property to, any Group Member Subsidiary and any other Person in which it has an equity investment from time to time) subject ); provided, however, that, as long as the Parent REIT has determined to continue to qualify as a REIT, the restrictions set forth General Partner may not engage in any such formation, acquisition or contribution that would cause the Parent REIT to fail to qualify as a REIT within the meaning of Code Section 2.4856(a);
(x10) the control of any matters affecting the rights and obligations of the Partnership, including the bringing settlement, compromise, submission to arbitration or any other form of dispute resolution, or abandonment, of any claim, cause of action, liability, debt or damages, due or owing to or from the Partnership, the commencement or defense of suits, legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, and defending the representation of actions at law the Partnership in all suits or in equity and otherwise engaging in the conduct legal proceedings, administrative proceedings, arbitrations or other forms of litigation and dispute resolution, the incurring of legal expense expense, and the settlement of claims and litigation;
(xi) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.8);
(xiii) unless restricted or prohibited by Section 5.7, the purchase, sale or other acquisition or disposition of Partnership Securities, or the issuance of additional options, rights, warrants and appreciation rights relating to Partnership Securities; and
(xiv11) the undertaking of any action in connection with the Partnership’s participation direct or indirect investment in any Group Member as a member Subsidiary or partner.any other Person (including, without limitation, the contribution of Property or contribution or loan of funds by the Partnership to such Persons);
(b12) Notwithstanding any other provision of except as otherwise specifically set forth in this Agreement, the Operating Company Agreement, the Delaware Act or any applicable law, rule or regulation, each determination of the Partners fair market value of any Partnership property distributed in kind using such reasonable method of valuation as it may adopt; provided that such methods are otherwise consistent with the requirements of this Agreement;
(13) the enforcement of any rights against any Partner pursuant to representations, warranties, covenants and indemnities relating to such Partner’s contribution of property or assets to the Assignees and each other Person who may acquire an interest in Partnership Securities hereby Partnership;
(i14) approvesthe exercise, ratifies and confirms directly or indirectly, through any attorney-in-fact acting under a general or limited power of attorney, of any right, including the executionright to vote, delivery and performance appurtenant to any asset or investment held by the parties thereto Partnership;
(15) the exercise of any of the Operating Company Agreement, any other limited liability company or partnership agreement powers of any other Group Member, the Underwriting Agreement, the Omnibus Agreement, the Contribution Agreement and the other agreements described in or filed as exhibits to the Registration Statement that are related to the transactions contemplated by the Registration Statement; (ii) agrees that the General Partner (enumerated in this Agreement on its own behalf of or through in connection with any officer Subsidiary of the PartnershipPartnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(16) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest, pursuant to contractual or other arrangements with such Person;
(17) the making, execution and delivery of any and all deeds, leases, notes, deeds to secure debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate in the judgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement;
(18) the issuance of additional Partnership Units, as appropriate and in the General Partner’s sole and absolute discretion, in connection with Capital Contributions by Additional Limited Partners and additional Capital Contributions by Partners pursuant to Article 4 hereof;
(19) the selection and dismissal of Company Employees (including, without limitation, employees having titles or offices such as president, vice president, secretary and treasurer), and agents, outside attorneys, accountants, consultants and contractors of the Partnership or the General Partner, the determination of their compensation and other terms of employment or hiring and the delegation to any such Company Employee the authority to conduct the business of the Partnership in accordance with the terms of this Agreement; and
(20) an election to dissolve the Partnership pursuant to Section 13.1.C hereof.
B. Each of the Limited Partners agrees that, except as provided in Section 7.3 hereof, the General Partner is authorized to execute, deliver and perform the above-mentioned agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership without any further act, approval or vote of the Partners Partners, notwithstanding any other provision of this Agreement, the Act or the Assignees any applicable law, rule or the other Persons who may acquire an interest in Partnership Securities; and (iii) agrees that the regulation. The execution, delivery or performance by the General Partner, any Group Member Partner or any Affiliate the Partnership of any of them, of this Agreement or any agreement authorized or permitted under this Agreement (including the exercise by the General Partner or any Affiliate of the General Partner of the rights accorded pursuant to Article XV), shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement (or any other agreements) or of any duty stated or implied by law or equity.
C. At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain working capital and other reserves in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
D. In exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner (including the General Partner) of any action taken by it. The General Partner and the Partnership shall not have liability to a Limited Partner under any circumstances as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner pursuant to its authority under this Agreement.
Appears in 1 contract
Samples: Agreement of Limited Partnership (Arbor Realty Trust Inc)
Management. (a) The General Partner shall conduct, direct and manage all activities of the Partnership. A. Except as otherwise expressly provided in this Agreement, all management powers over the business and affairs of the Partnership are and shall be exclusively vested in the General Partner, and no Limited Partner or Assignee shall have any right to participate in or exercise control or management power over the business and affairs of the Partnership. The General Partner may not be removed by the Partners with or without cause, except with the consent of the General Partner. In addition to the powers now or hereafter granted to a general partner of a limited partnership under applicable law or which that are granted to the General Partner under any other provision of this Agreement, the General Partner, subject to the other provisions hereof including Section 7.3, shall have full power and authority to do all things and on such terms as it, in its sole discretion, may deem deemed necessary or appropriate desirable by it to conduct the business of the Partnership, to exercise all powers set forth in Section 2.5 3.2 hereof and to effectuate the purposes set forth in Section 2.43.1 hereof, including the followingincluding, without limitation:
(i1) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money or selling assets to permit the Partnership to make distributions to its Partners in such amounts as will permit the Parent REIT (so long as the Parent REIT desires to maintain or restore its status as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Code Section 4981) and to make distributions sufficient to permit the Parent REIT to maintain or restore REIT status or otherwise to satisfy the REIT Requirements), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtednessindebtedness (including the securing of same by deed to secure debt, including indebtedness that is convertible into Partnership Securitiesmortgage, deed of trust or other lien or encumbrance on the Partnership's assets) and the incurring of any other obligationsobligations that it deems necessary for the conduct of the activities of the Partnership;
(ii2) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership;
(iii3) the acquisition, dispositionsale, mortgagelease, pledgetransfer, encumbranceexchange or other disposition of any, hypothecation all or exchange of any or substantially all of the assets of the Partnership (including, but not limited to, the exercise or grant of any conversion, option, privilege or subscription right or any other right available in connection with any assets at any time held by the Partnership) or the merger merger, consolidation, reorganization or other combination of the Partnership with or into another Person (the matters described in this clause (iii) being subject, however, to any prior approval that may be required by Section 7.3)entity;
(iv4) the mortgage, pledge, encumbrance or hypothecation of any assets of the Partnership, the use of the assets of the Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms that it sees fit, including including, without limitation, the financing of the conduct operations and activities of the operations Parent REIT, the General Partner, the Partnership or any of the Partnership Group; subject to Section 7.6(a)Partnership's Subsidiaries, the lending of funds to other Persons (including other Group Members)including, without limitation, the Partnership's Subsidiaries) and the repayment or guarantee of obligations of the Partnership, its Subsidiaries and any other Person in which the Partnership Group has an equity investment, and the making of capital contributions to and equity investments in the Partnership's Subsidiaries;
(5) the management, operation, leasing, landscaping, repair, alteration, demolition, replacement or improvement of any member Property, including, without limitation, any Contributed Property, or other asset of the Partnership Groupor any Subsidiary, whether pursuant to a Services Agreement or otherwise;
(v6) the negotiation, execution and performance of any contracts, leases, conveyances or other instruments (including instruments that limit the liability General Partner considers useful or necessary to the conduct of the Partnership's operations or the implementation of the General Partner's powers under this Agreement, including contracting with contractors, developers, consultants, accountants, legal counsel, other professional advisors and other agents and the payment of their expenses and compensation out of the Partnership's assets;
(7) the distribution of Partnership under contractual arrangements to all cash or particular other Partnership assets in accordance with this Agreement, the holding, management, investment and reinvestment of cash and other assets of the Partnership, with and the other party to the contract to have no recourse against the General Partner or its assets other than its interest in collection and receipt of revenues, rents and income of the Partnership, even if same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case);
(vi) the distribution of Partnership cash;
(vii) the selection and dismissal of employees (including employees having titles such as “president,” “vice president,” “secretary” and “treasurer”) and agents, outside attorneys, accountants, consultants and contractors and the determination of their compensation and other terms of employment or hiring;
(viii) 8) the maintenance of such insurance for the benefit of the Partnership Group and the Partners as it deems necessary or appropriate, including, without limitation, (i) casualty, liability and other insurance on the Properties and (ii) liability insurance for the Indemnitees hereunder;
(ix9) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies companies, joint ventures or other relationships that it deems desirable (including including, without limitation, the acquisition of interests in, and the contributions of property to, any Group Member Subsidiary and any other Person in which it has an equity investment from time to time) subject ); provided, however, that, as long as the Parent REIT has determined to continue to qualify as a REIT, the restrictions set forth General Partner may not engage in any such formation, acquisition or contribution that would cause the Parent REIT to fail to qualify as a REIT within the meaning of Code Section 2.4856(a);
(x10) the control of any matters affecting the rights and obligations of the Partnership, including the bringing settlement, compromise, submission to arbitration or any other form of dispute resolution, or abandonment, of any claim, cause of action, liability, debt or damages, due or owing to or from the Partnership, the commencement or defense of suits, legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, and defending the representation of actions at law the Partnership in all suits or in equity and otherwise engaging in the conduct legal proceedings, administrative proceedings, arbitrations or other forms of litigation and dispute resolution, the incurring of legal expense expense, and the settlement of claims and litigation;
(xi) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.8);
(xiii) unless restricted or prohibited by Section 5.7, the purchase, sale or other acquisition or disposition of Partnership Securities, or the issuance of additional options, rights, warrants and appreciation rights relating to Partnership Securities; and
(xiv11) the undertaking of any action in connection with the Partnership’s participation 's direct or indirect investment in any Group Member as a member Subsidiary or partner.any other Person (including, without limitation, the contribution of Property or contribution or loan of funds by the Partnership to such Persons);
(b12) Notwithstanding any other provision of except as otherwise specifically set forth in this Agreement, the Operating Company Agreement, the Delaware Act or any applicable law, rule or regulation, each determination of the Partners fair market value of any Partnership property distributed in kind using such reasonable method of valuation as it may adopt; provided that such methods are otherwise consistent with the requirements of this Agreement;
(13) the enforcement of any rights against any Partner pursuant to representations, warranties, covenants and indemnities relating to such Partner's contribution of property or assets to the Assignees and each other Person who may acquire an interest in Partnership Securities hereby Partnership;
(i14) approvesthe exercise, ratifies and confirms directly or indirectly, through any attorney-in-fact acting under a general or limited power of attorney, of any right, including the executionright to vote, delivery and performance appurtenant to any asset or investment held by the parties thereto Partnership;
(15) the exercise of any of the Operating Company Agreement, any other limited liability company or partnership agreement powers of any other Group Member, the Underwriting Agreement, the Omnibus Agreement, the Contribution Agreement and the other agreements described in or filed as exhibits to the Registration Statement that are related to the transactions contemplated by the Registration Statement; (ii) agrees that the General Partner (enumerated in this Agreement on its own behalf of or through in connection with any officer Subsidiary of the PartnershipPartnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(16) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest, pursuant to contractual or other arrangements with such Person;
(17) the making, execution and delivery of any and all deeds, leases, notes, deeds to secure debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate in the judgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement;
(18) the issuance of additional Partnership Units, as appropriate and in the General Partner's sole and absolute discretion, in connection with Capital Contributions by Additional Limited Partners and additional Capital Contributions by Partners pursuant to Article IV hereof;
(19) the selection and dismissal of Company Employees (including, without limitation, employees having titles or offices such as president, vice president, secretary and treasurer), and agents, outside attorneys, accountants, consultants and contractors of the Partnership or the General Partner, the determination of their compensation and other terms of employment or hiring and the delegation to any such Company Employee the authority to conduct the business of the Partnership in accordance with the terms of this Agreement; and
(20) an election to dissolve the Partnership pursuant to Section 13.1C hereof.
B. Each of the Limited Partners agrees that, except as provided in Section 7.3 hereof, the General Partner is authorized to execute, deliver and perform the above-mentioned agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership without any further act, approval or vote of the Partners Partners, notwithstanding any other provision of this Agreement, the Act or the Assignees any applicable law, rule or the other Persons who may acquire an interest in Partnership Securities; and (iii) agrees that the regulation. The execution, delivery or performance by the General Partner, any Group Member Partner or any Affiliate the Partnership of any of them, of this Agreement or any agreement authorized or permitted under this Agreement (including the exercise by the General Partner or any Affiliate of the General Partner of the rights accorded pursuant to Article XV), shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement (or any other agreements) or of any duty stated or implied by law or equity.
C. At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain working capital and other reserves in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
D. In exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner (including the General Partner) of any action taken by it. The General Partner and the Partnership shall not have liability to a Limited Partner under any circumstances as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner pursuant to its authority under this Agreement.
Appears in 1 contract
Samples: Limited Partnership Agreement (Arbor Realty Trust Inc)
Management. (a) The General Partner shall conduct, direct and manage all activities of the Partnership. Except as otherwise expressly provided in this Agreement, all management powers over the business and affairs of the Partnership are and shall be exclusively vested in the General Partner, and no Limited Partner or Assignee shall have any right to participate in or exercise control or management power over the business and affairs of the Partnership. The General Partner may not be removed by the Limited Partners with or without cause, except with the consent of the General Partner, which it may give or withhold at its sole and absolute discretion. In addition to the powers now or hereafter granted to a general partner of a limited partnership under applicable law or which are granted to the General Partner under any other provision of this Agreement, the General Partner, subject to Section 7.3, shall have full power and authority to do all things and on such terms as it, in its sole discretion, may deem deemed necessary or appropriate desirable by it to conduct the business of the Partnership, to exercise all powers set forth in Section 2.5 3.2 and to effectuate the purposes set forth in Section 2.43.1, including the followingincluding:
(i) the making of any expenditures, the lending or borrowing of moneymoney (including making prepayments on loans and borrowing money to permit the Partnership to make distributions to its Partners in such amounts as will permit the Company (so long as the Company desires to maintain its qualification as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Code Section 4981) and to make distributions to its shareholders in amounts sufficient to permit the Company to maintain its REIT status), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences evidence of indebtednessindebtedness (including the securing of the same by deed, including indebtedness that is convertible into Partnership Securitiesmortgage, deed of trust or other lien or encumbrance on the Partnership’s assets) and the incurring of any other obligationsobligations it deems necessary for the conduct of the activities of the Partnership;
(ii) the making of tax, regulatory and other filingsfilings or elections, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership;
(iii) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the Partnership (including the exercise or grant of any conversion, option, privilege, or subscription right or other right available in connection with any assets at any time held by the Partnership) or the merger or other combination of the Partnership with or into another Person entity (all of the matters described in this clause (iii) being subject, however, foregoing subject to any prior approval that may be only to the extent required by Section 7.3);
(iv) the mortgage, pledge, encumbrance or hypothecation of any assets of the Partnership, the use of the assets of the Partnership (including cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms that it sees fit, including the financing of the conduct of the operations of the Partnership Group; subject to Section 7.6(a)Partnership, the Company or any of the Partnership’s or the Company’s Subsidiaries, the lending of funds to other Persons (including other Group Members), the Subsidiaries of the Partnership and/or the Company) and the repayment or guarantee of obligations of the Partnership Group and its Subsidiaries and any other Person in which it has an equity investment, and the making of capital contributions to any member of the Partnership Groupits Subsidiaries;
(v) the management, operation, leasing, landscaping, repair, alteration, demolition, disposition or improvement of any real property or improvements owned by the Partnership or any Subsidiary of the Partnership;
(vi) the negotiation, execution execution, delivery and performance of any contracts, conveyances or other instruments (including instruments that limit the liability of General Partner considers useful or necessary or convenient to the Partnership under contractual arrangements to all or particular assets conduct of the Partnership, with ’s operations or the other party to the contract to have no recourse against implementation of the General Partner or its assets Partner’s powers under this Agreement, including contracting with consultants, accountants, legal counsel, other than its interest in professional advisors and other agents and the payment of their expenses and compensation out of the Partnership, even if same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case);
(vi) the distribution of Partnership cash’s assets;
(vii) the distribution of Partnership cash or other Partnership assets in accordance with this Agreement;
(viii) holding, managing, investing and reinvesting cash and other assets of the Partnership;
(ix) the collection and receipt of revenues and income of the Partnership;
(x) the establishment of one or more divisions of the Partnership, the selection and dismissal of employees of the Partnership (including employees having who may be designated as officers with titles such as “president,” “vice president,” “secretary” and “treasurer”) ” of the Partnership), and agents, outside attorneys, accountants, consultants and contractors of the Partnership, and the determination of their compensation and other terms of employment or hiring;
(viiixi) the maintenance of such insurance for the benefit of the Partnership Group and the Partners as it deems necessary or appropriate;
(ixxii) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventureslimited liability companies, corporations, limited liability companies entities that are treated as REITs, “taxable REIT subsidiaries” or as foreign corporations for federal income tax purposes, joint ventures or other relationships that it deems desirable (including the acquisition of interests in, and the contributions of property or the making of loans to, its or the Company’s Subsidiaries and any Group Member other Person in which it has an equity investment from time to time) subject time or the incurrence of indebtedness on behalf of such Persons or the guarantee of obligations of such Persons and the making of any tax, regulatory or other filing or election with respect to any of the restrictions set forth foregoing Persons); provided, that as long as the Company has determined to continue to qualify as a REIT, the Partnership may not engage in Section 2.4any such formation, acquisition or contribution that would cause the Company to fail to qualify as a REIT;
(xxiii) the control of any matters affecting the rights and obligations of the Partnership, including the bringing and defending settlement, compromise, submission to arbitration or any other form of actions at law dispute resolution, or in equity and otherwise engaging in abandonment of, any claim, cause of action, liability, debt or damages, due or owing to or from the conduct Partnership, the commencement or defense of litigation suits, legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, and the incurring representation of the Partnership in all suits or legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, the incurrence of legal expense expense, and the settlement of claims and litigation;
(xi) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.8);
(xiii) unless restricted or prohibited by Section 5.7, the purchase, sale or other acquisition or disposition of Partnership Securities, or the issuance of additional options, rights, warrants and appreciation rights relating to Partnership Securities; and
(xiv) the undertaking of any action in connection with the Partnership’s participation direct or indirect investment in any Group Member Subsidiary or any other Person (including the contribution or loan of funds by the Partnership to such Persons);
(xv) the determination of the fair market value of any Partnership property distributed in kind using such reasonable method of valuation as the General Partner may adopt;
(xvi) the enforcement of any rights against any Partner pursuant to representations, warranties, covenants and indemnities relating to such Partner’s contribution of property or assets to the Partnership;
(xvii) the exercise, directly or indirectly, through any attorney-in-fact acting under a general or limited power of attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(xviii) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(xix) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest pursuant to contractual or other arrangements with such Person;
(xx) the making, execution, delivery and performance of any and all deeds, leases, notes, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary, appropriate or convenient, in the judgment of the General Partner, for the accomplishment of any of the powers of the General Partner enumerated in this Agreement;
(xxi) the issuance of additional Partnership Units and other partnership interests, as appropriate, in connection with Capital Contributions by Additional Limited Partners and additional Capital Contributions by Partners pursuant to Article 4; and
(xxii) the taking of any action necessary (or appropriate by the General Partner, in its discretion) to enable the Company to qualify as a member or partnerREIT.
(b) Notwithstanding any other provision of this Agreement, the Operating Company Agreement, the Delaware Act or any applicable law, rule or regulation, each Each of the Limited Partners and the Assignees and each other Person who may acquire an interest in Partnership Securities hereby (i) approves, ratifies and confirms the execution, delivery and performance by the parties thereto of the Operating Company Agreement, any other limited liability company or partnership agreement of any other Group Member, the Underwriting Agreement, the Omnibus Agreement, the Contribution Agreement and the other agreements described in or filed as exhibits to the Registration Statement that are related to the transactions contemplated by the Registration Statement; (ii) agrees that the General Partner (on its own or through any officer of the Partnership) is authorized to execute, deliver and perform the above-mentioned agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership without any further act, approval or vote of the Partners Partners, notwithstanding any other provision of this Agreement (except as provided in Section 7.3), the Act or any applicable law, rule or regulation, to the Assignees fullest extent permitted under the Act or the other Persons who may acquire an interest in Partnership Securities; and (iii) agrees that the applicable law, rule or regulation. The execution, delivery or performance by the General Partner, any Group Member Partner or any Affiliate the Partnership of any of them, of this Agreement or any agreement authorized or permitted under this Agreement (including the exercise by the General Partner or any Affiliate of the General Partner of the rights accorded pursuant to Article XV), shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement (or any other agreements) or of any duty stated or implied by law or equity.
(c) At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain at any and all times working capital accounts and other cash or similar balances in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
(d) In exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to (except as otherwise provided by this Agreement with respect to the qualification of the Company as a REIT), take into account the tax consequences to any Partner of any action taken by it. The General Partner and the Partnership shall not be liable to a Limited Partner under any circumstances as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner taken pursuant to its authority under this Agreement and in accordance with the terms of Section 7.3.
Appears in 1 contract
Samples: Limited Partnership Agreement (Angel Oak Mortgage, Inc.)
Management. (a) The General Partner shall conduct, direct and manage all activities of the Partnership. Except as otherwise expressly provided in this Agreement, all management powers over the business and affairs of the Partnership are and shall be exclusively vested in the General Partner, and no Limited Partner or Assignee shall have any right to participate in or exercise control or management power over the business and affairs of the Partnership. The General Partner may not be removed by the Limited Partners, except with the consent of the General Partner. In addition to the powers now or hereafter granted to a general partner of a limited partnership under applicable law or which that are granted to the General Partner under any other provision of this Agreement, the General Partner, subject to the other provisions hereof including Section 7.37.03 and Section 11.02, shall have full power and authority to do all things and on such terms as it, in its sole discretion, may deem deemed necessary or appropriate desirable by it to conduct the business of the Partnership, to exercise all powers set forth in Section 2.5 3.02 hereof and to effectuate the purposes set forth in Section 2.43.01 hereof, including the followingincluding, without limitation:
(i) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money or selling assets to permit the Partnership to make distributions to its Partners in such amounts as will permit the General Partner (so long as the General Partner desires to maintain or restore its qualification as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Code Section 4981) and to make distributions to its stockholders sufficient to permit the General Partner to maintain or restore REIT qualification or otherwise to satisfy the REIT Requirements), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtednessindebtedness (including the securing of same by deed to secure debt, including indebtedness that is convertible into Partnership Securitiesmortgage, deed of trust or other lien or encumbrance on the Partnership’s assets) and the incurring of any other obligationsobligations that it deems necessary for the conduct of the activities of the Partnership;
(ii) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership, the registration of any class of securities of the Partnership under the Exchange Act and the listing of any debt securities of the Partnership on any exchange;
(iii) subject to Section 11.02 hereof, the acquisition, dispositionsale, mortgagelease, pledgetransfer, encumbranceexchange or other disposition of any, hypothecation all or exchange of any or substantially all of the assets of the Partnership (including, but not limited to, the exercise or grant of any conversion, option, privilege or subscription right or any other right available in connection with any assets at any time held by the Partnership) or the merger merger, consolidation, reorganization or other combination of the Partnership with or into another Person (the matters described in this clause (iii) being subject, however, to any prior approval that may be required by Section 7.3)entity;
(iv) the mortgage, pledge, encumbrance or hypothecation of any assets of the Partnership, the use of the assets of the Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms that it sees fit, including including, without limitation, the financing of the operations and activities of the General Partner, the Partnership or any of the Partnership’s Subsidiaries, the lending of funds to other Persons (including, without limitation, the Partnership’s Subsidiaries) and the repayment of obligations of the Partnership, its Subsidiaries and any other Person in which the Partnership has an equity investment, and the making of capital contributions to and equity investments in the Partnership’s Subsidiaries;
(v) the use of the assets of the Partnership (including, without limitation, cash on hand) for any purpose consistent with the terms of this Agreement and on any terms it sees fit, including, without limitation, the financing of the conduct of the operations of the General Partner, the Partnership Group; subject to Section 7.6(a)or any of the Partnership’s Subsidiaries, the lending of funds to other Persons (including other Group Members)including, without limitation, the General Partner and its Subsidiaries and the Partnership’s Subsidiaries) and the repayment or guarantee of obligations of the Partnership Group and its Subsidiaries and any other Person in which the Partnership has an equity investment and the making of capital contributions to its Subsidiaries;
(vi) the management, operation, leasing, landscaping, repair, alteration, demolition, replacement or improvement of any member Property, including, without limitation, any Contributed Property, or other asset of the Partnership Groupor any Subsidiary, whether pursuant to a Services Agreement or otherwise;
(vvii) the negotiation, execution and performance of any contracts, leases, conveyances or other instruments (including instruments that limit the liability of General Partner considers useful or necessary to the Partnership under contractual arrangements to all or particular assets conduct of the Partnership, with ’s operations or the other party to the contract to have no recourse against implementation of the General Partner or its assets Partner’s powers under this Agreement, including contracting with contractors, developers, consultants, accountants, legal counsel, other than its interest in professional advisors and other agents and the payment of their expenses and compensation out of the Partnership, even if same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case)’s assets;
(viviii) the distribution of Partnership cashcash or other Partnership assets in accordance with this Agreement, the holding, management, investment and reinvestment of cash and other assets of the Partnership and the collection and receipt of revenues, rents and income of the Partnership;
(vii) the selection and dismissal of employees (including employees having titles such as “president,” “vice president,” “secretary” and “treasurer”) and agents, outside attorneys, accountants, consultants and contractors and the determination of their compensation and other terms of employment or hiring;
(viiiix) the maintenance of such insurance for the benefit of the Partnership Group and the Partners as it the General Partner deems necessary or appropriate, including, without limitation, (i) casualty, liability and other insurance on the Properties and (ii) liability insurance for the Indemnitees hereunder;
(ixx) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies companies, joint ventures or other relationships that the General Partner deems desirable (including including, without limitation, the acquisition of interests in, and the contributions of property to, any Group Member Subsidiary and any other Person in which it has an equity investment from time to time); provided, however, that as long as the General Partner has determined to continue to qualify as a REIT, the General Partner may not engage in any such formation, acquisition or contribution that would cause it to fail to qualify as a REIT within the meaning of Code Section 856(a) subject (so long as the General Partner desires to the restrictions set forth in Section 2.4maintain its qualification as a REIT);
(xxi) the filing of applications, communicating and otherwise dealing with any and all governmental agencies having jurisdiction over, or in any way affecting, the Partnership’s assets or any other aspect of the Partnership business;
(xii) the control of any matters affecting the rights and obligations of the Partnership, including the bringing settlement, compromise, submission to arbitration or any other form of dispute resolution, or abandonment, of any claim, cause of action, liability, debt or damages, due or owing to or from the Partnership, the commencement or defense of suits, legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, and defending the representation of actions at law the Partnership in all suits or in equity and otherwise engaging in the conduct legal proceedings, administrative proceedings, arbitrations or other forms of litigation and dispute resolution, the incurring of legal expense expense, and the settlement of claims and litigation;
(xi) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.8);
(xiii) unless restricted or prohibited by Section 5.7, the purchase, sale or other acquisition or disposition of Partnership Securities, or the issuance of additional options, rights, warrants and appreciation rights relating to Partnership Securities; and
(xiv) the undertaking of any action in connection with the Partnership’s participation direct or indirect investment in any Group Member Subsidiary or any other Person (including, without limitation, the contribution or loan of funds by the Partnership to such Persons);
(xiv) except as otherwise specifically set forth in this Agreement, the determination of the fair market value of any Partnership property distributed in-kind using such reasonable method of valuation as it may adopt; provided, that such methods are otherwise consistent with the requirements of this Agreement;
(xv) the enforcement of any rights against any Partner pursuant to representations, warranties, covenants and indemnities relating to such Partner’s contribution of property or assets to the Partnership;
(xvi) the exercise, directly or indirectly, through any attorney-in-fact acting under a general or limited power-of-attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(xvii) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(xviii) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest, pursuant to contractual or other arrangements with such Person;
(xix) the making, execution and delivery of any and all deeds, leases, notes, deeds to secure Debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate in the judgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement;
(xx) the issuance of additional Partnership Units, as appropriate and in the General Partner’s sole and absolute discretion, in connection with Capital Contributions by Additional Limited Partners and additional Capital Contributions by Partners pursuant to Article IV hereof;
(xxi) the selection and dismissal of Company Employees (including, without limitation, employees having titles or offices such as president, vice president, secretary and treasurer), and agents, outside attorneys, accountants, consultants and contractors of the Partnership or the General Partner, the determination of their compensation and other terms of employment or hiring and the delegation to any such Company Employee the authority to conduct the business of the Partnership in accordance with the terms of this Agreement;
(xxii) the distribution of cash to acquire Partnership Units held by a Limited Partner in connection with a Limited Partner’s exercise of its Redemption right under Section 8.06 hereof;
(xxiii) the amendment and restatement of Exhibit A hereto to reflect accurately at all times the Capital Contributions and Percentage Interests of the Partners as the same are adjusted from time to time to the extent necessary to reflect redemptions, Capital Contributions, the issuance of Partnership Units, the admission of any Additional Limited Partner or any Substituted Limited Partner or otherwise, which amendment and restatement, notwithstanding anything in this Agreement to the contrary, shall not be deemed an amendment to this Agreement, as long as the matter or event being reflected in Exhibit A hereto otherwise is authorized by this Agreement;
(xxiv) the determination regarding whether a payment to a Partner who exercises its Redemption Right under Section 8.06 that is assumed by the General Partner will be paid in the form of the Cash Amount or the REIT Shares Amount, except as such determination may be limited by Section 8.06;
(xxv) the collection and receipt of revenues and income of the Partnership;
(xxvi) the registration of any class of securities of the Partnership under the Securities Act or the Exchange Act, and the listing of any debt securities of the Partnership on any exchange;
(xxvii) an election to dissolve the Partnership pursuant to Section 13.01(b) hereof;
(xxviii) the taking of any action necessary or appropriate to enable the General Partner to qualify as a member REIT (so long as the General Partner desires to maintain its qualification as a REIT); and
(xxix) the taking of any action necessary or partnerappropriate to prevent the Partnership or the General Partner from being subject to regulation under the Investment Company Act.
(b) Notwithstanding any other provision of this Agreement, the Operating Company Agreement, the Delaware Act or any applicable law, rule or regulation, each Each of the Limited Partners and the Assignees and each other Person who may acquire an interest agrees that, except as provided in Partnership Securities hereby (i) approvesSection 7.03 hereof, ratifies and confirms the execution, delivery and performance by the parties thereto of the Operating Company Agreement, any other limited liability company or partnership agreement of any other Group Member, the Underwriting Agreement, the Omnibus Agreement, the Contribution Agreement and the other agreements described in or filed as exhibits to the Registration Statement that are related to the transactions contemplated by the Registration Statement; (ii) agrees that the General Partner (on its own or through any officer of the Partnership) is authorized to execute, deliver and perform the above- mentioned agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership without any further act, approval or vote of the Partners Partners, notwithstanding any other provision of this Agreement, the Act or any applicable law, rule or regulation.
(c) At all times from and after the Assignees or date hereof, the General Partner may cause the Partnership to establish and maintain working capital and other Persons who may acquire an interest reserves in Partnership Securities; and (iii) agrees that the execution, delivery or performance by such amounts as the General Partner, any Group Member or any Affiliate of any of themin its sole and absolute discretion, of this Agreement or any agreement authorized or permitted deems appropriate and reasonable from time to time.
(d) In exercising its authority under this Agreement Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner (including the exercise General Partner) of any action taken (or not taken) by it. Except as may be provided in a separate written agreement between the Partnership and the Limited Partners, the General Partner and the Partnership shall not have liability to a Limited Partner under any circumstances as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner or any Affiliate of the General Partner of the rights accorded pursuant to Article XV)its authority under this Agreement provided, shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons has acted in good faith and pursuant to its authority under this Agreement (or any other agreements) or of any duty stated or implied by law or equityAgreement.
Appears in 1 contract
Samples: Limited Partnership Agreement (Hannon Armstrong Sustainable Infrastructure Capital, Inc.)