Restrictions on General Partner’s Authority. A. The General Partner may not take any action in contravention of this Agreement, including, without limitation: (1) take any action that would make it impossible to carry on the ordinary business of the Partnership, except as otherwise provided in this Agreement; (2) possess Partnership property, or assign any rights in specific Partnership property, for other than a Partnership purpose, except as otherwise provided in this Agreement; (3) admit a Person as a Partner, except as otherwise provided in this Agreement; (4) perform any act that would subject a Limited Partner to liability as a general partner in any jurisdiction or any other liability, except as provided herein or under the Act; or (5) enter into any contract, mortgage, loan or other agreement that prohibits or restricts, or has the effect of prohibiting or restricting, the ability of (a) the General Partner, the Previous 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. B. The General Partner shall not, without the prior Consent of the Limited Partners, undertake, on behalf of the Partnership, any of the following actions or enter into any transaction that would have the effect of such transactions: (1) except as provided in Section 7.3C hereof, amend, modify or terminate this Agreement other than to reflect the admission, substitution, termination or withdrawal of Partners pursuant to Article 11 or Article 12 hereof; (2) make a general assignment for the benefit of creditors or appoint or acquiesce in the appointment of a custodian, receiver or trustee for all or any part of the assets of the Partnership; (3) institute any proceeding for bankruptcy on behalf of the Partnership; or (4) subject to the rights of Transfer provided in Sections 11.1C and 11.2 hereof, approve or acquiesce to the Transfer of the Partnership Interest of the General Partner, or admit into the Partnership any additional or successor General Partners. C. Notwithstanding Section 7.3B hereof, the General Partner shall have the power, without the Consent of the Limited Partners, to amend this Agreement as may be required to facilitate or implement any of the following purposes: (1) to add to the obligations of the General Partner or surrender any right or power granted to the General Partner or any Affiliate of the General Partner for the benefit of the Limited Partners; (2) to reflect the admission, substitution or withdrawal of Partners or the termination of the Partnership in accordance with this Agreement, and to amend Exhibits A and C in connection with such admission, substitution or withdrawal; (3) to reflect a change that is of an inconsequential nature and does not adversely affect the Limited Partners in any material respect, or to cure any ambiguity, correct or supplement any provision in this Agreement not inconsistent with law or with other provisions, or make other changes with respect to matters arising under this Agreement that will not be inconsistent with law or with the provisions of this Agreement; (4) to satisfy any requirements, conditions or guidelines contained in any order, directive, opinion, ruling or regulation of a federal or state agency or contained in federal or state law; (5) (a) to reflect such changes as are reasonably necessary (i) for the General Partner or any other wholly owned subsidiary of a Special Limited Partner, as the case may be, to maintain its status as a “qualified REIT subsidiary” (within the meaning of Code Section 856(i)(2)) or (ii) for any Special Limited Partner to maintain its status as a REIT or to satisfy the REIT Requirements; (b) to reflect the Transfer of all or any part of a Partnership Interest among the General Partner, the Special Limited Partners or any “qualified REIT subsidiary” (within the meaning of Code Section 856(i)(2)) with respect to any Special Limited Partner; (6) to modify the manner in which Capital Accounts are computed (but only to the extent set forth in the definition of “Capital Account” or contemplated by the Code or the Regulations); and (7) the issuance of additional Partnership Interests in accordance with Section 4.2. The General Partner will provide notice to the Limited Partners when any action under this Section 7.3C is taken. D. Notwithstanding Sections 7.3B and 7.3C hereof, this Agreement shall not be amended, and no action may be taken by the General Partner, without the Consent of each Partner adversely affected, if such amendment or action would (i) convert a Limited Partner Interest in the Partnership into a General Partner Interest (except as a result of the General Partner acquiring such Partnership Interest), (ii) modify the limited liability of a Limited Partner, (iii) alter the rights of any Partner to receive the distributions to which such Partner is entitled, pursuant to Article 5 or Section 13.2A(4) hereof, or alter the allocations specified in Article 6 hereof (except, in any case, as permitted pursuant to Sections 4.2 and 7.3C hereof), (iv) alter or modify the Redemption rights, Cash Amount or REIT Shares Amount as set forth in Sections 8.6 and 11.2 hereof, or amend or modify any related definitions, or (v) amend this Section 7.3D; provided, however, that the Consent of each Partner adversely affected shall not be required for any amendment or action that affects all Partners holding the same class or series of Partnership Units on a uniform or pro rata basis. Further, no amendment may alter the restrictions on the General Partner’s authority set forth elsewhere in this Section 7.3 without the Consent specified therein. Any such amendment or action consented to by any Partner shall be effective as to that Partner, notwithstanding the absence of such consent by any other Partner.
Appears in 4 contracts
Samples: Limited Partnership Agreement (Aimco Properties L.P.), Limited Partnership Agreement (Apartment Income REIT Corp.), Limited Partnership Agreement (Apartment Income REIT Corp.)
Restrictions on General Partner’s Authority. A. The General Partner may not take any action in contravention of this Agreement, including, without limitation:
(1i) take any action that would make it impossible to carry on the ordinary business of the Partnership, except as otherwise provided in this Agreement;
(2ii) possess Partnership property, or assign any rights in specific Partnership property, for other than a Partnership purpose, purpose except as otherwise provided in this Agreement;
(3iii) admit a Person as a Partner, except as otherwise provided in this AgreementAgreement (including with respect to the PLPs, who shall become Partners upon their receipt of Performance Units);
(4iv) perform any act that would subject a Limited Partner to liability as a general partner in any jurisdiction or any other liability, liability except as provided herein or under the Act; or
(5v) enter into any contract, mortgage, loan or other agreement that prohibits or restricts, or has the effect of prohibiting or restricting, the ability of (a) the General Partner, the Previous General Partner or the Partnership from satisfying its obligations under Section 8.6 hereof in full or (b) a Limited Partner from exercising to exercise its rights under Section 8.6 hereof to effect a Redemption in full, except, in either case, except with the written consent of such Limited Partner affected by the prohibition or restrictionPartner.
B. The General Partner shall not, without the prior Consent of the Partners (in addition to any Consent of the Limited PartnersPartners required by any other provision hereof), undertake, on behalf of the Partnership, any of the following actions or enter into any transaction that which would have the effect of such transactions:
(1i) except as provided in Section 7.3C hereof7.3.D below, amend, modify or terminate this Agreement other than to reflect the admission, substitution, termination or withdrawal of Partners partners pursuant to Article 11 or Article 12 hereof12;
(2ii) make a general assignment for the benefit of creditors or appoint or acquiesce in the appointment of a custodian, receiver or trustee for all or any part of the assets of the Partnership;
(3iii) institute any proceeding for bankruptcy on behalf of the Partnership;
(iv) confess a judgment against the Partnership; or
(4v) subject to the rights of Transfer provided in Sections 11.1C and 11.2 hereofenter into a merger (including a triangular merger), approve consolidation or acquiesce to the Transfer other combination of the Partnership Interest of the General Partner, with or admit into the Partnership any additional or successor General Partnersanother entity.
C. Except in the case of a Liquidating Event pursuant to Section 13.1 (other than Section 13.1.F), the General Partner shall not, without the prior Consent of the Limited Partners, undertake, on behalf of the Partnership, any actions or enter into any transaction which would have the effect of a dissolution of the Partnership, including a sale, exchange, transfer or other disposition of all or substantially all of the Partnership’s assets in a single transaction or a series of related transactions.
D. Notwithstanding Sections 7.3.B and 7.3.C, but subject to Section 7.3B hereof7.3.E, the General Partner shall have the power, without the Consent of the Limited Partners, to amend this Agreement as may be required to facilitate or implement any of the following purposes:
(1i) to add to the obligations of the General Partner or surrender any right or power granted to the General Partner or any Affiliate of the General Partner for the benefit of the Limited Partners;
(2ii) to reflect the issuance of additional Partnership Interests pursuant to Sections 4.3.C, 4.3.F and 4.4, or the admission, substitution substitution, termination, reduction in Partnership Units or withdrawal of Partners or the termination of the Partnership in accordance with this Agreement, and to amend Exhibits Agreement (which may be effected through the replacement of Exhibit A and C in connection with such admission, substitution or withdrawalan amended Exhibit A);
(3iii) to set forth or amend the designations, rights, powers, duties, and preferences of the holders of any additional Partnership Interests issued pursuant to Article 4;
(iv) to reflect a change that is of an inconsequential nature and does not adversely affect the Limited Partners in any material respect, or to cure any ambiguityambiguity in, correct or supplement any provision in this Agreement not inconsistent with law or with other provisionsprovision, or make other changes with respect to matters arising under under, this Agreement that will not be inconsistent with law or with the provisions of this Agreement;
(4v) to satisfy any requirements, conditions conditions, or guidelines contained in any order, directive, opinion, ruling or regulation of a federal or Federal, state of local agency or contained in federal Federal, state or state local law;.
(5) (avi) to reflect such changes as are reasonably necessary (i) for the General Partner or any other wholly owned subsidiary of a Special Limited Partner, as the case may be, to maintain its status as a “qualified REIT subsidiary” (within the meaning of Code Section 856(i)(2)) or (ii) for any Special Limited Partner to maintain its status as a REIT REIT, including changes which may be necessitated due to a change in applicable law (or to satisfy an authoritative interpretation thereof) or a ruling of the REIT RequirementsIRS; and
(bvii) to reflect the Transfer of all or any part of a Partnership Interest among the General Partnermodify, the Special Limited Partners or any “qualified REIT subsidiary” (within the meaning of Code Section 856(i)(2)) with respect to any Special Limited Partner;
(6) to modify the manner in which Capital Accounts are computed (but only to the extent as set forth in the definition of “Capital Account,” or contemplated by the Code or the Regulations); and
(7) the issuance of additional Partnership Interests manner in accordance with Section 4.2which Capital Accounts are computed. The General Partner will provide notice to the Limited Partners when any action under this Section 7.3C 7.3.D is taken.
D. E. Notwithstanding Sections 7.3B 7.3.B, 7.3.C and 7.3C hereof7.3.D, this Agreement shall not be amended, and no action may be taken by the General Partner, including in either case through merger or sale of assets of the Partnership or otherwise, without the Consent of each Common Limited Partner or Preferred Limited Partner adversely affected, affected if such amendment or action would (i) convert a Limited Partner Interest Partner’s interest in the Partnership into a General Partner Interest general partner’s interest (except as a the result of the General Partner acquiring such Partnership Interestinterest), (ii) modify the limited liability of a Limited Partner, (iii) alter the rights of any the Partner to receive the distributions to which such Partner is entitled, pursuant to Article 5 5, Section 13.2.A(4), Article 18, Article 19, Article 20, Article 21 or Section 13.2A(4) hereof, Article 22 or alter the allocations specified in Article 6 hereof (except, in any case, except as permitted pursuant to Sections 4.2 Section 4.3 and 7.3C hereofSection 7.3.D), (iv) alter or modify the rights to a Redemption rights, Cash Amount or the REIT Shares Amount as set forth in Sections 8.6 Section 8.6, and 11.2 related definitions hereof, (v) alter the redemption or amend or modify any related definitionsexchange rights as set forth in Sections 18.5, 18.8 19.5 and 19.8 hereof, respectively, or (vvi) amend this Section 7.3D; provided, however, that the Consent of each Partner adversely affected shall not be required for any amendment or action that affects all Partners holding the same class or series of Partnership Units on a uniform or pro rata basis. 7.3.E. Further, no amendment may alter the restrictions on the General Partner’s authority set forth elsewhere in this Section 7.3 without the Consent specified thereinin such section. Any such amendment In addition, (a) Section 11.2 of this Agreement shall not be amended, and no action in contravention of Section 11.2 shall be taken, including in either case through merger or sale of assets of the Partnership or otherwise, without the Consent of the Limited Partners and (b) this Agreement shall not be amended, and no action consented shall be taken, including in either case through merger or sale of assets of the Partnership or otherwise, which would adversely affect the rights of the Persons set forth in Exhibit G to by any receive Performance Units as described herein.
F. Other than incident to a transaction pursuant to Sections 11.2.B or 11.2.C, the General Partner shall be effective not undertake to dispose of any Partnership Property specified in the agreements listed in Exhibit H in a taxable sale or taxable exchange prior to the dates specified in such agreements without the prior consent of each Limited Partner which contributed all or any portion of an interest in such Property to the Partnership, as to that Partner, notwithstanding the absence of set forth in such consent by any other Partneragreements.
Appears in 4 contracts
Samples: Agreement of Limited Partnership (Amb Property Corp), Limited Partnership Agreement (Amb Property Lp), Limited Partnership Agreement (Amb Property Corp)
Restrictions on General Partner’s Authority. A. The General Partner may not take any action in contravention of this Agreement, including, without limitation:
(1) take any action that would make it impossible to carry on the ordinary business of the Partnership, except as otherwise provided in this Agreement;
(2) possess Partnership property, or assign any rights in specific Partnership property, for other than a Partnership purpose, purpose except as otherwise provided in this Agreement;
(3) admit a Person as a Partner, except as otherwise provided in this Agreement;; or
(4) perform any act that would subject a Limited Partner to liability as a general partner in any jurisdiction or any other liability, liability except as provided herein or under the Act; or
(5) enter into any contract, mortgage, loan or other agreement that prohibits or restricts, or has the effect of prohibiting or restricting, the ability of (a) the General Partner, the Previous General Partner or the Partnership from satisfying its obligations under Section 8.6 hereof in full or (b) a Limited Partner from exercising to exercise its rights under Section 8.6 hereof to effect a Redemption in full, except, in either case, except with the written consent of such Limited Partner affected by the prohibition or restrictionPartner.
B. The General Partner shall not, without the prior Consent of the Partners (in addition to any Consent of the Limited PartnersPartners required by any other provision hereof), undertake, on behalf of the Partnership, any of the following actions or enter into any transaction that which would have the effect of such transactions:
(1) except as provided in Section 7.3C hereof7.3.E, amend, modify or terminate this Agreement other than to reflect the admission, substitution, termination or withdrawal of Partners partners pursuant to Article 11 or Article 12 hereof;
(2) make a general assignment for the benefit of creditors or appoint or acquiesce in the appointment of a custodian, receiver or trustee for all or any part of the assets of the Partnership;
(3) institute any proceeding for bankruptcy on behalf of the Partnership; or
(4) subject to confess a judgment against the rights Partnership.
C. The General Partner shall not, without the prior Consent of Transfer provided in Sections 11.1C and 11.2 hereofthe Limited Partners, undertake, on behalf of the Partnership, any of the following actions or enter into any transaction which would have the effect of such transactions:
(1) approve or acquiesce to the Transfer transfer of the Partnership Interest of the General Partner, or Partner to any Person other than the Partnership; or
(2) admit into the Partnership any additional Additional or successor substitute General Partners. in each case other than incident to a transaction pursuant to Section 11.2.B or Section 11.2.C.
D. In each case other than incident to a transaction pursuant to Section 11.2.B or Section 11.2.C, the General Partner shall not, without the prior Consent of the Limited Partners, undertake, on behalf of the Partnership, any actions or enter into any transaction which would have the effect of a dissolution of the Partnership, including a sale, exchange, transfer or other disposition of all or substantially all of the Partnership’s assets in a single transaction or a series of related transactions.
C. E. Notwithstanding Sections 7.3.B, 7.3.C and 7.3.D hereof, but subject to Section 7.3B 7.3.F hereof, the General Partner shall have the power, without the Consent of the Limited Partners, to amend this Agreement as may be required to facilitate or implement any of the following purposes:
(1) to add to the obligations of the General Partner or surrender any right or power granted to the General Partner or any Affiliate of the General Partner for the benefit of the Limited Partners;
(2) to reflect the issuance of additional Partnership Interests pursuant to Sections 4.3.C and 4.4 or the admission, substitution substitution, termination, reduction in Partnership Units or withdrawal of Partners or the termination of the Partnership in accordance with this Agreement, and to amend Exhibits Agreement (which may be effected through the replacement of Exhibit A and C in connection with such admission, substitution or withdrawalan amended Exhibit A);
(3) to set forth or amend the designations, rights, powers, duties and preferences of the holders of any additional Partnership Interests issued pursuant to Article 4;
(4) to reflect a change that is of an inconsequential nature and does not adversely affect the Limited Partners in any material respect, or to cure any ambiguityambiguity in, correct or supplement any provision in this Agreement not inconsistent with law or with other provisionsprovisions in, or make other changes with respect to matters arising under under, this Agreement that will not be inconsistent with law or with the provisions of this Agreement;
(45) to satisfy any requirements, conditions conditions, or guidelines contained in any order, directive, opinion, ruling or regulation of a federal or state agency or contained in federal or state law;
(5) (a6) to reflect such changes as are reasonably necessary (i) for the General Partner or any other wholly owned subsidiary of a Special Limited Partner, as the case may be, to maintain its status as a “qualified REIT subsidiary” (within the meaning of Code Section 856(i)(2)) or (ii) for any Special Limited Partner to maintain its status as a REIT REIT, including changes which may be necessitated due to a change in applicable law (or to satisfy an authoritative interpretation thereof) or a ruling of the REIT Requirements; (b) to reflect the Transfer of all or any part of a Partnership Interest among the General Partner, the Special Limited Partners or any “qualified REIT subsidiary” (within the meaning of Code Section 856(i)(2)) with respect to any Special Limited PartnerIRS;
(67) to modify the manner in which Capital Accounts are computed (but only to the extent modify, as set forth in the definition of “Capital Account,” or contemplated by the Code or the Regulations)manner in which Capital Accounts are computed; and
(7) the issuance 8) to amend or modify any provisions of additional Partnership Interests this Agreement in accordance connection with Section 4.2a Termination Transaction. The General Partner will provide notice to the Limited Partners when any action under this Section 7.3C 7.3.E is taken.
D. F. Notwithstanding Sections 7.3B 7.3.B, 7.3.C, 7.3.D and 7.3C 7.3.E hereof, this Agreement shall not be amendedamended with respect to any Partner adversely affected, and no action may be taken by the General Partner, including in either case directly or indirectly through merger or sale of assets of the Partnership or otherwise, without the Consent of each such Partner adversely affected, affected if such amendment or action would (i) convert a Limited Partner Interest Partner’s interest in the Partnership into a General Partner Interest general partner’s interest (except as a the result of the General Partner acquiring such Partnership Interestinterest), (ii) modify the limited liability of a Limited Partner, (iii) alter the rights of any the Partner to receive the distributions to which such Partner is entitled, pursuant to Article 5 or Section 13.2A(4) hereof13.2.A(4), or alter the allocations specified in Article 6 hereof (except, in any case, except as permitted pursuant to Sections 4.2 4.3, 5.4 6.2.C and 7.3C Section 7.3.E(2) hereof), (iv) materially alter or modify the rights to a Redemption rights, Cash Amount or the REIT Shares Amount as set forth in Sections 8.6 Section 8.6, and 11.2 related definitions hereof, or amend or modify any related definitions, or (v) amend this Section 7.3D; provided, however, that the Consent of each Partner adversely affected shall not be required for any amendment or action that affects all Partners holding the same class or series of Partnership Units on a uniform or pro rata basis. 7.3.F. Further, no amendment may alter the restrictions on the General Partner’s authority set forth elsewhere in this Section 7.3 without the Consent specified thereinin such section. Any such amendment or In addition, notwithstanding Sections 7.3.B, 7.3.C, 7.3.D and 7.3.E hereof, Section 11.2 of this Agreement shall not be amended, and no action consented to by any Partner in contravention of Section 11.2 hereof shall be effective as to that Partnertaken, notwithstanding without the absence Consent of such consent by any other Partnerthe Limited Partners.
Appears in 3 contracts
Samples: Limited Partnership Agreement (Shearson American REIT, Inc.), Limited Partnership Agreement (Excel Trust, Inc.), Limited Partnership Agreement (Excel Trust, Inc.)
Restrictions on General Partner’s Authority. A. The General Partner may not take any action in contravention of this Agreement, including, without limitation:
(1i) take any action that would make it impossible to carry on the ordinary business of the Partnership, except as otherwise provided in this Agreement;
(2ii) possess Partnership property, or assign any rights in specific Partnership property, for other than a Partnership purpose, purpose except as otherwise provided in this Agreement;
(3iii) admit a Person as a Partner, except as otherwise provided in this AgreementAgreement (including with respect to the PLPs, who shall become Partners upon their receipt of Performance Units);
(4iv) perform any act that would subject a Limited Partner to liability as a general partner in any jurisdiction or any other liability, liability except as provided herein or under the Act; or
(5v) enter into any contract, mortgage, loan or other agreement that prohibits or restricts, or has the effect of prohibiting or restricting, the ability of (a) the General Partner, the Previous General Partner or the Partnership from satisfying its obligations under Section 8.6 hereof in full or (b) a Limited Partner from exercising to exercise its rights under Section 8.6 hereof to effect a Redemption in full, except, in either case, except with the written consent of such Limited Partner affected by the prohibition or restrictionPartner.
B. The General Partner shall not, without the prior Consent of the Partners (in addition to any Consent of the Limited PartnersPartners required by any other provision hereof), undertake, on behalf of the Partnership, any of the following actions or enter into any transaction that which would have the effect of such transactions:
(1i) except as provided in Section 7.3C hereof7.3.D below, amend, modify or terminate this Agreement other than to reflect the admission, substitution, termination or withdrawal of Partners partners pursuant to Article 11 or Article 12 hereof12;
(2ii) make a general assignment for the benefit of creditors or appoint or acquiesce in the appointment of a custodian, receiver or trustee for all or any part of the assets of the Partnership;
(3iii) institute any proceeding for bankruptcy on behalf of the Partnership;
(iv) confess a judgment against the Partnership; or
(4v) subject to the rights of Transfer provided in Sections 11.1C and 11.2 hereofenter into a merger (including a triangular merger), approve consolidation or acquiesce to the Transfer other combination of the Partnership Interest of the General Partner, with or admit into the Partnership any additional or successor General Partnersanother entity.
C. Except in the case of a Liquidating Event pursuant to Section 13.1 (other than Section 13.1.F), the General Partner shall not, without the prior Consent of the Limited Partners, undertake, on behalf of the Partnership, any actions or enter into any transaction which would have the effect of a dissolution of the Partnership, including a sale, exchange, transfer or other disposition of all or substantially all of the Partnership's assets in a single transaction or a series of related transactions.
D. Notwithstanding Sections 7.3.B, 7.3.C and 7.3.D, but subject to Section 7.3B hereof7.3.E, the General Partner shall have the power, without the Consent of the Limited Partners, to amend this Agreement as may be required to facilitate or implement any of the following purposes:
(1) to add to the obligations of the General Partner or surrender any right or power granted to the General Partner or any Affiliate of the General Partner for the benefit of the Limited Partners;
(2) to reflect the admission, substitution or withdrawal of Partners or the termination of the Partnership in accordance with this Agreement, and to amend Exhibits A and C in connection with such admission, substitution or withdrawal;
(3) to reflect a change that is of an inconsequential nature and does not adversely affect the Limited Partners in any material respect, or to cure any ambiguity, correct or supplement any provision in this Agreement not inconsistent with law or with other provisions, or make other changes with respect to matters arising under this Agreement that will not be inconsistent with law or with the provisions of this Agreement;
(4) to satisfy any requirements, conditions or guidelines contained in any order, directive, opinion, ruling or regulation of a federal or state agency or contained in federal or state law;
(5) (a) to reflect such changes as are reasonably necessary (i) for the General Partner or any other wholly owned subsidiary of a Special Limited Partner, as the case may be, to maintain its status as a “qualified REIT subsidiary” (within the meaning of Code Section 856(i)(2)) or (ii) for any Special Limited Partner to maintain its status as a REIT or to satisfy the REIT Requirements; (b) to reflect the Transfer of all or any part of a Partnership Interest among the General Partner, the Special Limited Partners or any “qualified REIT subsidiary” (within the meaning of Code Section 856(i)(2)) with respect to any Special Limited Partner;
(6) to modify the manner in which Capital Accounts are computed (but only to the extent set forth in the definition of “Capital Account” or contemplated by the Code or the Regulations); and
(7) the issuance of additional Partnership Interests in accordance with Section 4.2. The General Partner will provide notice to the Limited Partners when any action under this Section 7.3C is taken.
D. Notwithstanding Sections 7.3B and 7.3C hereof, this Agreement shall not be amended, and no action may be taken by the General Partner, without the Consent of each Partner adversely affected, if such amendment or action would (i) convert a Limited Partner Interest in the Partnership into a General Partner Interest (except as a result of the General Partner acquiring such Partnership Interest), (ii) modify the limited liability of a Limited Partner, (iii) alter the rights of any Partner to receive the distributions to which such Partner is entitled, pursuant to Article 5 or Section 13.2A(4) hereof, or alter the allocations specified in Article 6 hereof (except, in any case, as permitted pursuant to Sections 4.2 and 7.3C hereof), (iv) alter or modify the Redemption rights, Cash Amount or REIT Shares Amount as set forth in Sections 8.6 and 11.2 hereof, or amend or modify any related definitions, or (v) amend this Section 7.3D; provided, however, that the Consent of each Partner adversely affected shall not be required for any amendment or action that affects all Partners holding the same class or series of Partnership Units on a uniform or pro rata basis. Further, no amendment may alter the restrictions on the General Partner’s authority set forth elsewhere in this Section 7.3 without the Consent specified therein. Any such amendment or action consented to by any Partner shall be effective as to that Partner, notwithstanding the absence of such consent by any other Partner.to
Appears in 3 contracts
Samples: Agreement of Limited Partnership (Amb Property Corp), Limited Partnership Agreement (Amb Property Corp), Agreement of Limited Partnership (Amb Property Corp)
Restrictions on General Partner’s Authority. A. The General Partner may not take any action in contravention of this Agreement, including, without limitation:
(1i) take any action that would make it impossible to carry on the ordinary business of the Partnership, except as otherwise provided in this Agreement;
(2ii) possess Partnership property, or assign any rights in specific Partnership property, for other than a Partnership purpose, purpose except as otherwise provided in this Agreement;
(3iii) admit a Person as a Partner, except as otherwise provided in this AgreementAgreement (including with respect to the PLPs, who shall become Partners upon their receipt of Performance Units);
(4iv) perform any act that would subject a Limited Partner to liability as a general partner in any jurisdiction or any other liability, liability except as provided herein or under the Act; or
(5v) enter into any contract, mortgage, loan or other agreement that prohibits or restricts, or has the effect of prohibiting or restricting, the ability of (a) the General Partner, the Previous General Partner or the Partnership from satisfying its obligations under Section 8.6 hereof in full or (b) a Limited Partner from exercising to exercise its rights under Section 8.6 hereof to effect a Redemption in full, except, in either case, except with the written consent of such Limited Partner affected by the prohibition or restrictionPartner.
B. The General Partner shall not, without the prior Consent of the Partners (in addition to any Consent of the Limited PartnersPartners required by any other provision hereof), undertake, on behalf of the Partnership, any of the following actions or enter into any transaction that which would have the effect of such transactions:
(1i) except as provided in Section 7.3C hereof7.3.D below, amend, modify or terminate this Agreement other than to reflect the admission, substitution, termination or withdrawal of Partners partners pursuant to Article 11 or Article 12 hereof12;
(2ii) make a general assignment for the benefit of creditors or appoint or acquiesce in the appointment of a custodian, receiver or trustee for all or any part of the assets of the Partnership;
(3iii) institute any proceeding for bankruptcy on behalf of the Partnership;
(iv) confess a judgment against the Partnership; or
(4v) subject to the rights of Transfer provided in Sections 11.1C and 11.2 hereofenter into a merger (including a triangular merger), approve consolidation or acquiesce to the Transfer other combination of the Partnership Interest of the General Partner, with or admit into the Partnership any additional or successor General Partnersanother entity.
C. Except in the case of a Liquidating Event pursuant to Section 13.1 (other than Section 13.1.F), the General Partner shall not, without the prior Consent of the Limited Partners, undertake, on behalf of the Partnership, any actions or enter into any transaction which would have the effect of a dissolution of the Partnership, including a sale, exchange, transfer or other disposition of all or substantially all of the Partnership's assets in a single transaction or a series of related transactions.
D. Notwithstanding Sections 7.3.B and 7.3.C, but subject to Section 7.3B hereof7.3.E, the General Partner shall have the power, without the Consent of the Limited Partners, to amend this Agreement as may be required to facilitate or implement any of the following purposes:
(1i) to add to the obligations of the General Partner or surrender any right or power granted to the General Partner or any Affiliate of the General Partner for the benefit of the Limited Partners;
(2ii) to reflect the issuance of additional Partnership Interests pursuant to Sections 4.3.C, 4.3.F and 4.4, or the admission, substitution substitution, termination, reduction in Partnership Units or withdrawal of Partners or the termination of the Partnership in accordance with this Agreement, and to amend Exhibits Agreement (which may be effected through the replacement of Exhibit A and C in connection with such admission, substitution or withdrawalan amended Exhibit A);
(3iii) to set forth or amend the designations, rights, powers, duties, and preferences of the holders of any additional Partnership Interests issued pursuant to Article 4;
(iv) to reflect a change that is of an inconsequential nature and does not adversely affect the Limited Partners in any material respect, or to cure any ambiguityambiguity in, correct or supplement any provision in this Agreement not inconsistent with law or with other provisionsprovision, or make other changes with respect to matters arising under under, this Agreement that will not be inconsistent with law or with the provisions of this Agreement;
(4v) to satisfy any requirements, conditions conditions, or guidelines contained in any order, directive, opinion, ruling or regulation of a federal or Federal, state of local agency or contained in federal Federal, state or state local law;.
(5) (avi) to reflect such changes as are reasonably necessary (i) for the General Partner or any other wholly owned subsidiary of a Special Limited Partner, as the case may be, to maintain its status as a “qualified REIT subsidiary” (within the meaning of Code Section 856(i)(2)) or (ii) for any Special Limited Partner to maintain its status as a REIT REIT, including changes which may be necessitated due to a change in applicable law (or to satisfy an authoritative interpretation thereof) or a ruling of the REIT RequirementsIRS; and
(bvii) to reflect modify, as set forth in the Transfer definition of all or any part of a Partnership Interest among the General Partner, the Special Limited Partners or any “qualified REIT subsidiary” (within the meaning of Code Section 856(i)(2)) with respect to any Special Limited Partner;
(6) to modify "Capital Account," the manner in which Capital Accounts are computed (but only to the extent set forth in the definition of “Capital Account” or contemplated by the Code or the Regulations); and
(7) the issuance of additional Partnership Interests in accordance with Section 4.2computed. The General Partner will provide notice to the Limited Partners when any action under this Section 7.3C 7.3.D is taken.
D. E. Notwithstanding Sections 7.3B 7.3.B, 7.3.C and 7.3C hereof7.3.D, this Agreement shall not be amended, and no action may be taken by the General Partner, including in either case through merger or sale of assets of the Partnership or otherwise, without the Consent of each Common Limited Partner or Preferred Limited Partner adversely affected, affected if such amendment or action would (i) convert a Limited Partner Interest Partner's interest in the Partnership into a General Partner Interest general partner's interest (except as a the result of the General Partner acquiring such Partnership Interestinterest), (ii) modify the limited liability of a Limited Partner, (iii) alter the rights of any the Partner to receive the distributions to which such Partner is entitled, pursuant to Article 5 5, Section 13.2.A(4), Article 18, Article 19, Article 20 or Section 13.2A(4) hereof, Article 21 or alter the allocations specified in Article 6 hereof (except, in any case, except as permitted pursuant to Sections 4.2 Section 4.3 and 7.3C hereofSection 7.3.D), (iv) alter or modify the rights to a Redemption rights, Cash Amount or the REIT Shares Amount as set forth in Sections 8.6 Section 8.6, and 11.2 related definitions hereof, (v) alter the redemption or amend or modify any related definitionsexchange rights as set forth in Sections 18.5, 18.8 19.5 and 19.8 hereof, respectively, or (vvi) amend this Section 7.3D; provided, however, that the Consent of each Partner adversely affected shall not be required for any amendment or action that affects all Partners holding the same class or series of Partnership Units on a uniform or pro rata basis. 7.3.E. Further, no amendment may alter the restrictions on the General Partner’s 's authority set forth elsewhere in this Section 7.3 without the Consent specified thereinin such section. Any such amendment In addition, (a) Section 11.2 of this Agreement shall not be amended, and no action in contravention of Section 11.2 shall be taken, including in either case through merger or sale of assets of the Partnership or otherwise, without the Consent of the Limited Partners and (b) this Agreement shall not be amended, and no action consented shall be taken, including in either case through merger or sale of assets of the Partnership or otherwise, which would adversely affect the rights of the Persons set forth in Exhibit G to by any receive Performance Units as described herein.
F. Other than incident to a transaction pursuant to Sections 11.2.B or 11.2.C, the General Partner shall be effective not undertake to dispose of any Partnership Property specified in the agreements listed in Exhibit H in a taxable sale or taxable exchange prior to the dates specified in such agreements without the prior consent of each Limited Partner which contributed all or any portion of an interest in such Property to the Partnership, as to that Partner, notwithstanding the absence of set forth in such consent by any other Partneragreements.
Appears in 2 contracts
Samples: Agreement of Limited Partnership (Amb Property Lp), Agreement of Limited Partnership (Amb Property Corp)
Restrictions on General Partner’s Authority. A. The General Partner may not take any action in contravention of this Agreement, including, without limitation:
(1i) take any action that would make it impossible to carry on the ordinary business of the Partnership, except as otherwise provided in this Agreement;
(2ii) possess Partnership property, or assign any rights in specific Partnership property, for other than a Partnership purpose, purpose except as otherwise provided in this Agreement;
(3iii) admit a Person as a Partner, except as otherwise provided in this Agreement;
(4iv) perform any act that would subject a Limited Partner to liability as a general partner in any jurisdiction or any other liability, liability except as provided herein or under the Act; or
(5v) enter into perform any contract, mortgage, loan or other agreement act that prohibits or restricts, or has the effect of prohibiting or restricting, the ability of (a) the General Partner, the Previous General Partner or would subject the Partnership from satisfying its obligations to regulation as an "investment company" as such term is defined 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 fullthe Investment Company Act of 1940, except, in either case, with the written consent of such Limited Partner affected by the prohibition or restrictionas amended.
B. The General Partner shall not, without the prior Consent of the Partners (in addition to any Consent of the Limited PartnersPartners required by any other provision hereof), undertake, on behalf of the Partnership, any of the following actions or enter into any transaction that which would have the effect of such transactions:
(1i) except as provided in Section 7.3C hereof7.3.D below, amend, modify or terminate this Agreement other than to reflect the admission, substitution, termination or withdrawal of Partners partners pursuant to Article 11 or Article 12 hereof12;
(2ii) make a general assignment for the benefit of creditors or appoint or acquiesce in the appointment of a custodian, receiver or trustee for all or any part of the assets of the Partnership;
(3iii) institute any proceeding for bankruptcy on behalf of the Partnership;
(iv) confess a judgment against the Partnership; or
(4v) subject to the rights of Transfer provided in Sections 11.1C and 11.2 hereofenter into a merger (including a triangular merger), approve consolidation or acquiesce to the Transfer other combination of the Partnership Interest of the General Partner, with or admit into the Partnership any additional or successor General Partnersanother entity.
C. Except in the case of a Liquidating Event pursuant to Section 13.1 (other than Section 13.1.F), the General Partner shall not, without the prior Consent of the Limited Partners, undertake, on behalf of the Partnership, any actions or enter into any transaction which would have the effect of a dissolution of the Partnership, including a sale, exchange, transfer or other disposition of all or substantially all of the Partnership's assets in a single transaction or a series of related transactions.
D. Notwithstanding Sections 7.3.B and 7.3.C, but subject to Section 7.3B hereof7.3.E, the General Partner shall have the power, without the Consent of the Limited Partners, to amend this Agreement as may be required to facilitate or implement any of the following purposes:
(1i) to add to the obligations of the General Partner or surrender any right or power granted to the General Partner or any Affiliate of the General Partner for the benefit of the Limited Partners;
(2ii) to reflect the issuance of additional Partnership Interests pursuant to Section 4.3.B, or the admission, substitution substitution, termination, reduction in Partnership Units or withdrawal of Partners or the termination of the Partnership in accordance with this Agreement, and to amend Exhibits Agreement (which may be effected through the replacement of Exhibit A and C in connection with such admission, substitution or withdrawalan amended Exhibit A);
(3iii) to set forth or amend the designations, rights, powers, duties, and preferences of the holders of any additional Partnership Interests issued pursuant to Article 4;
(iv) to reflect a change that is of an inconsequential nature and does not adversely affect the Limited Partners in any material respect, or to cure any ambiguityambiguity in, correct or supplement any provision in this Agreement not inconsistent with law or with other provisionsprovision, or make other changes with respect to matters arising under under, this Agreement that will not be inconsistent with law or with the provisions of this Agreement;
(4v) to satisfy any requirements, conditions conditions, or guidelines contained in any order, directive, opinion, ruling or regulation of a federal or Federal, state of local agency or contained in federal Federal, state or state local law;.
(5) (avi) to reflect such changes as are reasonably necessary (i) for AMB, in its capacity as the sole stockholder of the General Partner or any other wholly owned subsidiary of a Special Limited Partner, and as the case may besole general partner of the Operating Partnership, to maintain its status as a “qualified REIT subsidiary” REIT, including changes which may be necessitated due to a change in applicable law (within the meaning of Code Section 856(i)(2)or an authoritative interpretation thereof) or a ruling of the IRS; and
(ii) for any Special Limited Partner to maintain its status as a REIT or to satisfy the REIT Requirements; (bvii) to reflect modify, as set forth in the Transfer definition of all or any part of a Partnership Interest among the General Partner, the Special Limited Partners or any “qualified REIT subsidiary” (within the meaning of Code Section 856(i)(2)) with respect to any Special Limited Partner;
(6) to modify "Capital Account," the manner in which Capital Accounts are computed (but only to the extent set forth in the definition of “Capital Account” or contemplated by the Code or the Regulations); and
(7) the issuance of additional Partnership Interests in accordance with Section 4.2computed. The General Partner will provide notice to the Limited Partners when any action under this Section 7.3C 7.3.D is taken.
D. E. Notwithstanding Sections 7.3B 7.3.B, 7.3.C and 7.3C hereof7.3.D, this Agreement shall not be amended, and no action may be taken by the General Partner, including in either case through merger or sale of assets of the Partnership or otherwise, without the Consent of each Common Limited Partner or Preferred Limited Partner adversely affected, affected if such amendment or action would (i) convert a Limited Partner Interest Partner's interest in the Partnership into a General Partner Interest general partner's interest (except as a the result of the General Partner acquiring such Partnership Interestinterest), (ii) modify the limited liability of a Limited Partner, (iii) alter the rights of any the Partner to receive the distributions to which such Partner is entitled, pursuant to Article 5 or Section 13.2A(413.2.A(4) hereof, or alter Articles 16 or 17 or the allocations specified in Article 6 hereof (except, in any case, except as permitted pursuant to Sections 4.2 4.3 and 7.3C hereof7.3.D), (iv) alter the Series C Redemption or modify the Redemption rights, Cash Amount or REIT Shares Amount exchange rights as set forth in Sections 8.6 16.5 and 11.2 hereof16.8, respectively, or amend the Series D Redemption or modify any related definitionsexchange rights as set forth in Sections 17.5 and 17.8, respectively, or (v) amend this Section 7.3D; provided, however, that the Consent of each Partner adversely affected shall not be required for any amendment or action that affects all Partners holding the same class or series of Partnership Units on a uniform or pro rata basis. 7.3.E. Further, no amendment may alter the restrictions on the General Partner’s 's authority set forth elsewhere in this Section 7.3 without the Consent specified therein. Any in such amendment or action consented to by any section.
F. The General Partner shall be effective not undertake to dispose of any Partnership Property specified in the agreements listed in Exhibit G in a taxable sale or taxable exchange prior to the dates specified in such agreements without the prior consent of each Limited Partner which contributed all or any portion of an interest in such Property to the Partnership, as to that Partner, notwithstanding the absence of set forth in such consent by any other Partneragreements.
Appears in 2 contracts
Samples: Limited Partnership Agreement (Amb Property Lp), Limited Partnership Agreement (Amb Property Corp)
Restrictions on General Partner’s Authority. A. The General Partner may not take any action in contravention of this Agreement, including, without limitation:
(1i) take any action that would make it impossible to carry on the ordinary business of the Partnership, except as otherwise provided in this Agreement;
(2ii) possess Partnership property, or assign any rights in specific Partnership property, for other than a Partnership purpose, purpose except as otherwise provided in this Agreement;
(3iii) admit a Person as a Partner, except as otherwise provided in this AgreementAgreement (including with respect to the PLPs, who shall become Partners upon their receipt of Performance Units);
(4iv) perform any act that would subject a Limited Partner to liability as a general partner in any jurisdiction or any other liability, liability except as provided herein or under the Act; or
(5v) enter into any contract, mortgage, loan or other agreement that prohibits or restricts, or has the effect of prohibiting or restricting, the ability of (a) the General Partner, the Previous General Partner or the Partnership from satisfying its obligations under Section 8.6 hereof in full or (b) a Limited Partner from exercising to exercise its rights under Section 8.6 hereof to effect a Redemption in full, except, in either case, except with the written consent of such Limited Partner affected by the prohibition or restrictionPartner.
B. The General Partner shall not, without the prior Consent of the Partners (in addition to any Consent of the Limited PartnersPartners required by any other provision hereof), undertake, on behalf of the Partnership, any of the following actions or enter into any transaction that which would have the effect of such transactions:
(1i) except as provided in Section 7.3C hereof7.3.D below, amend, modify or terminate this Agreement other than to reflect the admission, substitution, termination or withdrawal of Partners partners pursuant to Article 11 or Article 12 hereof12;
(2ii) make a general assignment for the benefit of creditors or appoint or acquiesce in the appointment of a custodian, receiver or trustee for all or any part of the assets of the Partnership;
(3iii) institute any proceeding for bankruptcy on behalf of the Partnership;
(iv) confess a judgment against the Partnership; or
(4v) subject to the rights of Transfer provided in Sections 11.1C and 11.2 hereofenter into a merger (including a triangular merger), approve consolidation or acquiesce to the Transfer other combination of the Partnership Interest of the General Partner, with or admit into the Partnership any additional or successor General Partnersanother entity.
C. Except in the case of a Liquidating Event pursuant to Section 13.1 (other than Section 13.1.F), the General Partner shall not, without the prior Consent of the Limited Partners, undertake, on behalf of the Partnership, any actions or enter into any transaction which would have the effect of a dissolution of the Partnership, including a sale, exchange, transfer or other disposition of all or substantially all of the Partnership's assets in a single transaction or a series of related transactions.
D. Notwithstanding Sections 7.3.B and 7.3.C, but subject to Section 7.3B hereof7.3.E, the General Partner shall have the power, without the Consent of the Limited Partners, to amend this Agreement as may be required to facilitate or implement any of the following purposes:
(1i) to add to the obligations of the General Partner or surrender any right or power granted to the General Partner or any Affiliate of the General Partner for the benefit of the Limited Partners;
(2ii) to reflect the issuance of additional Partnership Interests pursuant to Sections 4.3.C, 4.3.F and 4.4, or the admission, substitution substitution, termination, reduction in Partnership Units or withdrawal of Partners or the termination of the Partnership in accordance with this Agreement, and to amend Exhibits Agreement (which may be effected through the replacement of Exhibit A and C in connection with such admission, substitution or withdrawalan amended Exhibit A);
(3iii) to set forth or amend the designations, rights, powers, duties, and preferences of the holders of any additional Partnership Interests issued pursuant to Article 4;
(iv) to reflect a change that is of an inconsequential nature and does not adversely affect the Limited Partners in any material respect, or to cure any ambiguityambiguity in, correct or supplement any provision in this Agreement not inconsistent with law or with other provisionsprovision, or make other changes with respect to matters arising under under, this Agreement that will not be inconsistent with law or with the provisions of this Agreement;
(4v) to satisfy any requirements, conditions conditions, or guidelines contained in any order, directive, opinion, ruling or regulation of a federal or Federal, state of local agency or contained in federal Federal, state or state local law;.
(5) (avi) to reflect such changes as are reasonably necessary (i) for the General Partner or any other wholly owned subsidiary of a Special Limited Partner, as the case may be, to maintain its status as a “qualified REIT subsidiary” (within the meaning of Code Section 856(i)(2)) or (ii) for any Special Limited Partner to maintain its status as a REIT REIT, including changes which may be necessitated due to a change in applicable law (or to satisfy an authoritative interpretation thereof) or a ruling of the REIT RequirementsIRS; and
(bvii) to reflect modify, as set forth in the Transfer definition of all or any part of a Partnership Interest among the General Partner, the Special Limited Partners or any “qualified REIT subsidiary” (within the meaning of Code Section 856(i)(2)) with respect to any Special Limited Partner;
(6) to modify "Capital Account," the manner in which Capital Accounts are computed (but only to the extent set forth in the definition of “Capital Account” or contemplated by the Code or the Regulations); and
(7) the issuance of additional Partnership Interests in accordance with Section 4.2computed. The General Partner will provide notice to the Limited Partners when any action under this Section 7.3C 7.3.D is taken.
D. E. Notwithstanding Sections 7.3B 7.3.B, 7.3.C and 7.3C hereof7.3.D, this Agreement shall not be amended, and no action may be taken by the General Partner, including in either case through merger or sale of assets of the Partnership or otherwise, without the Consent of each Partner adversely affected, affected if such amendment or action would (i) convert a Limited Partner Interest Partner's interest in the Partnership into a General Partner Interest general partner's interest (except as a the result of the General Partner acquiring such Partnership Interestinterest), (ii) modify the limited liability of a Limited Partner, (iii) alter the rights of any the Partner to receive the distributions to which such Partner is entitled, pursuant to Article 5 5, Section 13.2.A(4) or Section 13.2A(4) hereof, Article 16 or alter the allocations specified in Article 6 hereof (except, in any case, except as permitted pursuant to Sections 4.2 Section 4.3 and 7.3C hereofSection 7.3.D), (iv) alter or modify the rights to a Redemption rights, Cash Amount or the REIT Shares Amount as set forth in Sections 8.6 Section 8.6, and 11.2 related definitions hereof, or amend or modify any related definitions, or (v) amend this Section 7.3D; provided, however, that the Consent of each Partner adversely affected shall not be required for any amendment or action that affects all Partners holding the same class or series of Partnership Units on a uniform or pro rata basis. 7.3.E. Further, no amendment may alter the restrictions on the General Partner’s 's authority set forth elsewhere in this Section 7.3 without the Consent specified thereinin such section. Any such amendment In addition, (a) Section 11.2 of this Agreement shall not be amended, and no action in contravention of Section 11.2 shall be taken, including in either case through merger or sale of assets of the Partnership or otherwise, without the Consent of the Limited Partners and (b) this Agreement shall not be amended, and no action consented shall be taken, including in either case through merger or sale of assets of the Partnership or otherwise, which would adversely affect the rights of the Persons set forth in Exhibit G to by any receive Performance Units as described herein.
F. Other than incident to a transaction pursuant to Sections 11.2.B or 11.2.C, the General Partner shall be effective as not undertake to that Partner, notwithstanding dispose of any Partnership Property specified in the absence of such consent by any other Partner.agreements listed in Exhibit H in a taxable sale or taxable exchange prior to the dates specified in
Appears in 2 contracts
Samples: Limited Partnership Agreement (Amb Property Lp), Limited Partnership Agreement (Amb Property Corp)
Restrictions on General Partner’s Authority. A. The General Partner may not take any action in contravention of this Agreement, including, without limitation:
(1i) take any action that would make it impossible to carry on the ordinary business of the Partnership, except as otherwise provided in this Agreement;
(2ii) possess Partnership property, or assign any rights in specific Partnership property, for other than a Partnership purpose, purpose except as otherwise provided in this Agreement;
(3iii) admit a Person as a Partner, except as otherwise provided in this AgreementAgreement (including with respect to the PLPs, who shall become Partners upon their receipt of Performance Units);
(4iv) perform any act that would subject a Limited Partner to liability as a general partner in any jurisdiction or any other liability, liability except as provided herein or under the Act; or
(5v) enter into any contract, mortgage, loan or other agreement that prohibits or restricts, or has the effect of prohibiting or restricting, the ability of (a) the General Partner, the Previous General Partner or the Partnership from satisfying its obligations under Section 8.6 hereof in full or (b) a Limited Partner from exercising to exercise its rights under Section 8.6 hereof to effect a Redemption in full, except, in either case, except with the written consent of such Limited Partner affected by the prohibition or restrictionPartner.
B. The General Partner shall not, without the prior Consent of the Partners (in addition to any Consent of the Limited PartnersPartners required by any other provision hereof), undertake, on behalf of the Partnership, any of the following actions or enter into any transaction that which would have the effect of such transactions:
(1i) except as provided in Section 7.3C hereof7.3.D below, amend, modify or terminate this Agreement other than to reflect the admission, substitution, termination or withdrawal of Partners partners pursuant to Article 11 or Article 12 hereof12;
(2ii) make a general assignment for the benefit of creditors or appoint or acquiesce in the appointment of a custodian, receiver or trustee for all or any part of the assets of the Partnership;
(3iii) institute any proceeding for bankruptcy on behalf of the Partnership;
(iv) confess a judgment against the Partnership; or
(4v) subject to the rights of Transfer provided in Sections 11.1C and 11.2 hereofenter into a merger (including a triangular merger), approve consolidation or acquiesce to the Transfer other combination of the Partnership Interest of the General Partner, with or admit into the Partnership any additional or successor General Partnersanother entity.
C. Except in the case of a Liquidating Event pursuant to Section 13.1 (other than Section 13.1.F), the General Partner shall not, without the prior Consent of the Limited Partners, undertake, on behalf of the Partnership, any actions or enter into any transaction which would have the effect of a dissolution of the Partnership, including a sale, exchange, transfer or other disposition of all or substantially all of the Partnership's assets in a single transaction or a series of related transactions.
D. Notwithstanding Sections 7.3.B and 7.3.C, but subject to Section 7.3B hereof7.3.E, the General Partner shall have the power, without the Consent of the Limited Partners, to amend this Agreement as may be required to facilitate or implement any of the following purposes:
(1i) to add to the obligations of the General Partner or surrender any right or power granted to the General Partner or any Affiliate of the General Partner for the benefit of the Limited Partners;
(2ii) to reflect the issuance of additional Partnership Interests pursuant to Sections 4.3.C, 4.3.F and 4.4, or the admission, substitution substitution, termination, reduction in Partnership Units or withdrawal of Partners or the termination of the Partnership in accordance with this Agreement, and to amend Exhibits Agreement (which may be effected through the replacement of Exhibit A and C in connection with such admission, substitution or withdrawalan amended Exhibit A);
(3iii) to set forth or amend the designations, rights, powers, duties, and preferences of the holders of any additional Partnership Interests issued pursuant to Article 4;
(iv) to reflect a change that is of an inconsequential nature and does not adversely affect the Limited Partners in any material respect, or to cure any ambiguityambiguity in, correct or supplement any provision in this Agreement not inconsistent with law or with other provisionsprovision, or make other changes with respect to matters arising under under, this Agreement that will not be inconsistent with law or with the provisions of this Agreement;
(4v) to satisfy any requirements, conditions conditions, or guidelines contained in any order, directive, opinion, ruling or regulation of a federal or Federal, state of local agency or contained in federal Federal, state or state local law;.
(5) (avi) to reflect such changes as are reasonably necessary (i) for the General Partner or any other wholly owned subsidiary of a Special Limited Partner, as the case may be, to maintain its status as a “qualified REIT subsidiary” (within the meaning of Code Section 856(i)(2)) or (ii) for any Special Limited Partner to maintain its status as a REIT REIT, including changes which may be necessitated due to a change in applicable law (or to satisfy an authoritative interpretation thereof) or a ruling of the REIT RequirementsIRS; and
(bvii) to reflect modify, as set forth in the Transfer definition of all or any part of a Partnership Interest among the General Partner, the Special Limited Partners or any “qualified REIT subsidiary” (within the meaning of Code Section 856(i)(2)) with respect to any Special Limited Partner;
(6) to modify "Capital Account," the manner in which Capital Accounts are computed (but only to the extent set forth in the definition of “Capital Account” or contemplated by the Code or the Regulations); and
(7) the issuance of additional Partnership Interests in accordance with Section 4.2computed. The General Partner will provide notice to the Limited Partners when any action under this Section 7.3C 7.3.D is taken.
D. E. Notwithstanding Sections 7.3B 7.3.B, 7.3.C and 7.3C hereof7.3.D, this Agreement shall not be amended, and no action may be taken by the General Partner, including in either case through merger or sale of assets of the Partnership or otherwise, without the Consent of each Common Limited Partner or Preferred Limited Partner adversely affected, affected if such amendment or action would (i) convert a Limited Partner Interest Partner's interest in the Partnership into a General Partner Interest general partner's interest (except as a the result of the General Partner acquiring such Partnership Interestinterest), (ii) modify the limited liability of a Limited Partner, (iii) alter the rights of any the Partner to receive the distributions to which such Partner is entitled, pursuant to Article 5 5, Section 13.2.A(4), Article 17, Article 18, Article 19 or Section 13.2A(4) hereof, Article 20 or alter the allocations specified in Article 6 hereof (except, in any case, except as permitted pursuant to Sections 4.2 Section 4.3 and 7.3C hereofSection 7.3.D), (iv) alter or modify the rights to a Redemption rights, Cash Amount or the REIT Shares Amount as set forth in Sections 8.6 Section 8.6, and 11.2 related definitions hereof, (v) alter the redemption or amend or modify any related definitionsexchange rights as set forth in Sections 17.5, 17.8, 18.5, 18.8 19.5 and 19.8 hereof, respectively, or (vvi) amend this Section 7.3D; provided, however, that the Consent of each Partner adversely affected shall not be required for any amendment or action that affects all Partners holding the same class or series of Partnership Units on a uniform or pro rata basis. 7.3.E. Further, no amendment may alter the restrictions on the General Partner’s 's authority set forth elsewhere in this Section 7.3 without the Consent specified thereinin such section. Any such amendment In addition, (a) Section 11.2 of this Agreement shall not be amended, and no action in contravention of Section 11.2 shall be taken, including in either case through merger or sale of assets of the Partnership or otherwise, without the Consent of the Limited Partners and (b) this Agreement shall not be amended, and no action consented shall be taken, including in either case through merger or sale of assets of the Partnership or otherwise, which would adversely affect the rights of the Persons set forth in Exhibit G to by any receive Performance Units as described herein.
F. Other than incident to a transaction pursuant to Sections 11.2.B or 11.2.C, the General Partner shall be effective not undertake to dispose of any Partnership Property specified in the agreements listed in Exhibit H in a taxable sale or taxable exchange prior to the dates specified in such agreements without the prior consent of each Limited Partner which contributed all or any portion of an interest in such Property to the Partnership, as to that Partner, notwithstanding the absence of set forth in such consent by any other Partneragreements.
Appears in 2 contracts
Samples: Agreement of Limited Partnership (Amb Property Corp), Agreement of Limited Partnership (Amb Property Lp)
Restrictions on General Partner’s Authority. A. The General Partner may not take any action in contravention of this Agreement, including, without limitation:
(1) take any action that would make it impossible to carry on the ordinary business of the Partnership, except as otherwise provided in this Agreement;
(2) possess Partnership property, or assign any rights in specific Partnership property, for other than a Partnership purpose, except as otherwise provided in this Agreement;
(3) admit a Person as a Partner, except as otherwise provided in this Agreement;
(4) perform any act that would subject a Limited Partner to liability as a general partner in any jurisdiction or any other liability, except as provided herein or under the Act; or
(5) enter into any contract, mortgage, loan or other agreement that prohibits or restricts, or has the effect of prohibiting or restricting, the ability of (a) the General Partner, the Previous 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.
B. The General Partner shall not, without the prior Consent of the Limited Partners, undertake, on behalf of the Partnership, any of the following actions or enter into any transaction that would have the effect of such transactions:
(1) except as provided in Section 7.3C hereof, amend, modify or terminate this Agreement other than to reflect the admission, substitution, termination or withdrawal of Partners pursuant to Article 11 or Article 12 hereof;
(2) make a general assignment for the benefit of creditors or appoint or acquiesce in the appointment of a custodian, receiver or trustee for all or any part of the assets of the Partnership;
(3) institute any proceeding for bankruptcy on behalf of the Partnership; or
(4) subject to the rights of Transfer provided in Sections 11.1C and 11.2 hereof, approve or acquiesce to the Transfer of the Partnership Interest of the General Partner, or admit into the Partnership any additional or successor General Partners.
C. Notwithstanding Section 7.3B hereof, the General Partner shall have the power, without the Consent of the Limited Partners, to amend this Agreement as may be required to facilitate or implement any of the following purposes:
(1) to add to the obligations of the General Partner or surrender any right or power granted to the General Partner or any Affiliate of the General Partner for the benefit of the Limited Partners;
(2) to reflect the admission, substitution or withdrawal of Partners or the termination of the Partnership in accordance with this Agreement, and to amend Exhibits A and C in connection with such admission, substitution or withdrawal;
(3) to reflect a change that is of an inconsequential nature and does not adversely affect the Limited Partners in any material respect, or to cure any ambiguity, correct or supplement any provision in this Agreement not inconsistent with law or with other provisions, or make other changes with respect to matters arising under this Agreement that will not be inconsistent with law or with the provisions of this Agreement;
(4) to satisfy any requirements, conditions or guidelines contained in any order, directive, opinion, ruling or regulation of a federal or state agency or contained in federal or state law;
(5) (a) to reflect such changes as are reasonably necessary (i) for the General Partner or any other wholly owned subsidiary of a the Special Limited Partner, as the case may be, to maintain its status as a “qualified REIT subsidiary” (within the meaning of Code Section 856(i)(2)) or (ii) for any the Special Limited Partner to maintain its status as a REIT or to satisfy the REIT Requirements; (b) to reflect the Transfer of all or any part of a Partnership Interest among the General Partner, the Special Limited Partners Partner or any “qualified REIT subsidiary” (within the meaning of Code Section 856(i)(2)) with respect to any the Special Limited Partner;
(6) to modify the manner in which Capital Accounts are computed (but only to the extent set forth in the definition of “Capital Account” or contemplated by the Code or the Regulations); and
(7) the issuance of additional Partnership Interests in accordance with Section 4.2. The General Partner will provide notice to the Limited Partners when any action under this Section 7.3C is taken.
D. Notwithstanding Sections 7.3B and 7.3C hereof, this Agreement shall not be amended, and no action may be taken by the General Partner, without the Consent of each Partner adversely affected, if such amendment or action would (i) convert a Limited Partner Interest in the Partnership into a General Partner Interest (except as a result of the General Partner acquiring such Partnership Interest), (ii) modify the limited liability of a Limited Partner, (iii) alter the rights of any Partner to receive the distributions to which such Partner is entitled, pursuant to Article 5 or Section 13.2A(4) hereof, or alter the allocations specified in Article 6 hereof (except, in any case, as permitted pursuant to Sections 4.2 and 7.3C hereof), (iv) alter or modify the Redemption rights, Cash Amount or REIT Shares Amount as set forth in Sections 8.6 and 11.2 hereof, or amend or modify any related definitions, or (v) amend this Section 7.3D; provided, however, that the Consent of each Partner adversely affected shall not be required for any amendment or action that affects all Partners holding the same class or series of Partnership Units on a uniform or pro rata basis. Further, no amendment may alter the restrictions on the General Partner’s authority set forth elsewhere in this Section 7.3 without the Consent specified therein. Any such amendment or action consented to by any Partner shall be effective as to that Partner, notwithstanding the absence of such consent by any other Partner.
Appears in 2 contracts
Samples: Limited Partnership Agreement (Aimco OP L.P.), Limited Partnership Agreement (Aimco OP L.P.)
Restrictions on General Partner’s Authority. A. The General Partner may not take any action in contravention of this Agreement, including, without limitation:
(1i) take any action that would make it impossible to carry on the ordinary business of the Partnership, except as otherwise provided in this Agreement;
(2ii) possess Partnership property, or assign any rights in specific Partnership property, for other than a Partnership purpose, purpose except as otherwise provided in this Agreement;
(3iii) admit a Person as a Partner, except as otherwise provided in this AgreementAgreement (including with respect to the PLPs, who shall become Partners upon their receipt of Performance Units);
(4iv) perform any act that would subject a Limited Partner to liability as a general partner in any jurisdiction or any other liability, liability except as provided herein or under the Act; or
(5v) enter into any contract, mortgage, loan or other agreement that prohibits or restricts, or has the effect of prohibiting or restricting, the ability of (a) the General Partner, the Previous General Partner or the Partnership from satisfying its obligations under Section 8.6 hereof in full or (b) a Limited Partner from exercising to exercise its rights under Section 8.6 hereof to effect a Redemption in full, except, in either case, except with the written consent of such Limited Partner affected by the prohibition or restrictionPartner.
B. The General Partner shall not, without the prior Consent of the Partners (in addition to any Consent of the Limited PartnersPartners required by any other provision hereof), undertake, on behalf of the Partnership, any of the following actions or enter into any transaction that which would have the effect of such transactions:
(1i) except as provided in Section 7.3C hereof7.3.D below, amend, modify or terminate this Agreement other than to reflect the admission, substitution, termination or withdrawal of Partners partners pursuant to Article 11 or Article 12 hereof12;
(2ii) make a general assignment for the benefit of creditors or appoint or acquiesce in the appointment of a custodian, receiver or trustee for all or any part of the assets of the Partnership;
(3iii) institute any proceeding for bankruptcy on behalf of the Partnership;
(iv) confess a judgment against the Partnership; or
(4v) subject to the rights of Transfer provided in Sections 11.1C and 11.2 hereofenter into a merger (including a triangular merger), approve consolidation or acquiesce to the Transfer other combination of the Partnership Interest of the General Partner, with or admit into the Partnership any additional or successor General Partnersanother entity.
C. Except in the case of a Liquidating Event pursuant to Section 13.1 (other than Section 13.1.F), the General Partner shall not, without the prior Consent of the Limited Partners, undertake, on behalf of the Partnership, any actions or enter into any transaction which would have the effect of a dissolution of the Partnership, including a sale, exchange, transfer or other disposition of all or substantially all of the Partnership's assets in a single transaction or a series of related transactions.
D. Notwithstanding Sections 7.3.B and 7.3.C, but subject to Section 7.3B hereof7.3.E, the General Partner shall have the power, without the Consent of the Limited Partners, to amend this Agreement as may be required to facilitate or implement any of the following purposes:
(1i) to add to the obligations of the General Partner or surrender any right or power granted to the General Partner or any Affiliate of the General Partner for the benefit of the Limited Partners;
(2ii) to reflect the issuance of additional Partnership Interests pursuant to Sections 4.3.C, 4.3.F and 4.4, or the admission, substitution substitution, termination, reduction in Partnership Units or withdrawal of Partners or the termination of the Partnership in accordance with this Agreement, and to amend Exhibits Agreement (which may be effected through the replacement of Exhibit A and C in connection with such admission, substitution or withdrawalan amended Exhibit A);
(3iii) to set forth or amend the designations, rights, powers, duties, and preferences of the holders of any additional Partnership Interests issued pursuant to Article 4;
(iv) to reflect a change that is of an inconsequential nature and does not adversely affect the Limited Partners in any material respect, or to cure any ambiguityambiguity in, correct or supplement any provision in this Agreement not inconsistent with law or with other provisionsprovision, or make other changes with respect to matters arising under under, this Agreement that will not be inconsistent with law or with the provisions of this Agreement;
(4v) to satisfy any requirements, conditions conditions, or guidelines contained in any order, directive, opinion, ruling or regulation of a federal or Federal, state of local agency or contained in federal Federal, state or state local law;.
(5) (avi) to reflect such changes as are reasonably necessary (i) for the General Partner or any other wholly owned subsidiary of a Special Limited Partner, as the case may be, to maintain its status as a “qualified REIT subsidiary” (within the meaning of Code Section 856(i)(2)) or (ii) for any Special Limited Partner to maintain its status as a REIT REIT, including changes which may be necessitated due to a change in applicable law (or to satisfy an authoritative interpretation thereof) or a ruling of the REIT RequirementsIRS; and
(bvii) to reflect modify, as set forth in the Transfer definition of all or any part of a Partnership Interest among the General Partner, the Special Limited Partners or any “qualified REIT subsidiary” (within the meaning of Code Section 856(i)(2)) with respect to any Special Limited Partner;
(6) to modify "Capital Account," the manner in which Capital Accounts are computed (but only to the extent set forth in the definition of “Capital Account” or contemplated by the Code or the Regulations); and
(7) the issuance of additional Partnership Interests in accordance with Section 4.2computed. The General Partner will provide notice to the Limited Partners when any action under this Section 7.3C 7.3.D is taken.
D. E. Notwithstanding Sections 7.3B 7.3.B, 7.3.C and 7.3C hereof7.3.D, this Agreement shall not be amended, and no action may be taken by the General Partner, including in either case through merger or sale of assets of the Partnership or otherwise, without the Consent of each Common Limited Partner or Preferred Limited Partner adversely affected, affected if such amendment or action would (i) convert a Limited Partner Interest Partner's interest in the Partnership into a General Partner Interest general partner's interest (except as a the result of the General Partner acquiring such Partnership Interestinterest), (ii) modify the limited liability of a Limited Partner, (iii) alter the rights of any the Partner to receive the distributions to which such Partner is entitled, pursuant to Article 5 5, Section 13.2.A(4), Article 17, Article 18, Article 19, Article 20 or Section 13.2A(4) hereof, Article 21 or alter the allocations specified in Article 6 hereof (except, in any case, except as permitted pursuant to Sections 4.2 Section 4.3 and 7.3C hereofSection 7.3.D), (iv) alter or modify the rights to a Redemption rights, Cash Amount or the REIT Shares Amount as set forth in Sections 8.6 Section 8.6, and 11.2 related definitions hereof, (v) alter the redemption or amend or modify any related definitionsexchange rights as set forth in Sections 17.5, 17.8, 18.5, 18.8 19.5 and 19.8 hereof, respectively, or (vvi) amend this Section 7.3D; provided, however, that the Consent of each Partner adversely affected shall not be required for any amendment or action that affects all Partners holding the same class or series of Partnership Units on a uniform or pro rata basis. 7.3.E. Further, no amendment may alter the restrictions on the General Partner’s 's authority set forth elsewhere in this Section 7.3 without the Consent specified thereinin such section. Any such amendment In addition, (a) Section 11.2 of this Agreement shall not be amended, and no action in contravention of Section 11.2 shall be taken, including in either case through merger or sale of assets of the Partnership or otherwise, without the Consent of the Limited Partners and (b) this Agreement shall not be amended, and no action consented shall be taken, including in either case through merger or sale of assets of the Partnership or otherwise, which would adversely affect the rights of the Persons set forth in Exhibit G to by any receive Performance Units as described herein.
F. Other than incident to a transaction pursuant to Sections 11.2.B or 11.2.C, the General Partner shall be effective not undertake to dispose of any Partnership Property specified in the agreements listed in Exhibit H in a taxable sale or taxable exchange prior to the dates specified in such agreements without the prior consent of each Limited Partner which contributed all or any portion of an interest in such Property to the Partnership, as to that Partner, notwithstanding the absence of set forth in such consent by any other Partneragreements.
Appears in 2 contracts
Samples: Agreement of Limited Partnership (Amb Property Corp), Agreement of Limited Partnership (Amb Property Lp)
Restrictions on General Partner’s Authority. A. The General Partner may not take any action in contravention of this Agreement, including, without limitation:
(1) take any action that would make it impossible to carry on the ordinary business of the Partnership, except as otherwise provided in this Agreement;
(2) possess Partnership property, or assign any rights in specific Partnership property, for other than a Partnership purpose, purpose except as otherwise provided in this Agreement;
(3) admit a Person as a Partner, except as otherwise provided in this Agreement;; or
(4) perform any act that would subject a Limited Partner to liability as a general partner in any jurisdiction or any other liability, liability except as provided herein or under the Act; or
(5) enter into any contract, mortgage, loan or other agreement that prohibits or restricts, or has the effect of prohibiting or restricting, the ability of (a) the General Partner, the Previous General Partner or the Partnership from satisfying its obligations under Section 8.6 hereof in full or (b) a Limited Partner from exercising to exercise its rights under Section 8.6 hereof to effect a Redemption in full, except, in either case, except with the written consent of such Limited Partner affected by the prohibition or restrictionPartner.
B. The General Partner shall not, without the prior Consent of the Partners (in addition to any Consent of the Limited PartnersPartners required by any other provision hereof), undertake, on behalf of the Partnership, any of the following actions or enter into any transaction that which would have the effect of such transactions:
(1) except as provided in Section 7.3C hereof7.3.E, amend, modify or terminate this Agreement other than to reflect the admission, substitution, termination or withdrawal of Partners partners pursuant to Article 11 or Article 12 hereof;
(2) make a general assignment for the benefit of creditors or appoint or acquiesce in the appointment of a custodian, receiver or trustee for all or any part of the assets of the Partnership;
(3) institute any proceeding for bankruptcy on behalf of the Partnership; or
(4) subject to confess a judgment against the rights Partnership.
C. The General Partner shall not, without the prior Consent of Transfer provided in Sections 11.1C and 11.2 hereofthe Limited Partners, undertake, on behalf of the Partnership, any of the following actions or enter into any transaction which would have the effect of such transactions:
(1) approve or acquiesce to the Transfer transfer of the Partnership Interest of the General Partner, or Partner to any Person other than the Partnership; or
(2) admit into the Partnership any additional Additional or successor substitute General Partners. in each case other than incident to a transaction pursuant to Section 11.2.B or Section 11.2.C.
D. In each case other than incident to a transaction pursuant to Section 11.2.B or Section 11.2.C, the General Partner shall not, without the prior Consent of the Limited Partners, undertake, on behalf of the Partnership, any actions or enter into any transaction which would have the effect of a dissolution of the Partnership, including a sale, exchange, transfer or other disposition of all or substantially all of the Partnership’s assets in a single transaction or a series of related transactions.
C. E. Notwithstanding Sections 7.3.B, 7.3.C and 7.3.D hereof, but subject to Section 7.3B 7.3.F hereof, the General Partner shall have the power, without the Consent of the Limited Partners, to amend this Agreement as may be required to facilitate or implement any of the following purposes:
(1) to add to the obligations of the General Partner or surrender any right or power granted to the General Partner or any Affiliate of the General Partner for the benefit of the Limited Partners;
(2) to reflect the issuance of additional Partnership Interests pursuant to Sections 4.3.C, 4.4, 5.4 and 6.2.C or the admission, substitution substitution, termination, reduction in Partnership Units or withdrawal of Partners or the termination of the Partnership in accordance with this Agreement, and to amend Exhibits Agreement (which may be effected through the replacement of Exhibit A and C in connection with such admission, substitution or withdrawalan amended Exhibit A);
(3) to set forth or amend the designations, rights, powers, duties and preferences of the holders of any additional Partnership Interests issued pursuant to Article 4;
(4) to reflect a change that is of an inconsequential nature and does not adversely affect the Limited Partners in any material respect, or to cure any ambiguityambiguity in, correct or supplement any provision in this Agreement not inconsistent with law or with other provisionsprovisions in, or make other changes with respect to matters arising under under, this Agreement that will not be inconsistent with law or with the provisions of this Agreement;
(45) to satisfy any requirements, conditions conditions, or guidelines contained in any order, directive, opinion, ruling or regulation of a federal or state agency or contained in federal or state law;
(5) (a6) to reflect such changes as are reasonably necessary (i) for the General Partner or any other wholly owned subsidiary of a Special Limited Partner, as the case may be, to maintain its status as a “qualified REIT subsidiary” (within the meaning of Code Section 856(i)(2)) or (ii) for any Special Limited Partner to maintain its status as a REIT REIT, including changes which may be necessitated due to a change in applicable law (or to satisfy an authoritative interpretation thereof) or a ruling of the REIT Requirements; (b) to reflect the Transfer of all or any part of a Partnership Interest among the General Partner, the Special Limited Partners or any “qualified REIT subsidiary” (within the meaning of Code Section 856(i)(2)) with respect to any Special Limited PartnerIRS;
(67) to modify the manner in which Capital Accounts are computed (but only to the extent modify, as set forth in the definition of “Capital Account,” or contemplated by the Code or the Regulations)manner in which Capital Accounts are computed; and
(7) the issuance 8) to amend or modify any provisions of additional Partnership Interests this Agreement in accordance connection with Section 4.2a Termination Transaction. The General Partner will provide notice to the Limited Partners when any action under this Section 7.3C 7.3.E is taken.
D. F. Notwithstanding Sections 7.3B 7.3.B, 7.3.C, 7.3.D and 7.3C 7.3.E hereof, this Agreement shall not be amendedamended with respect to any Partner adversely affected, and no action may be taken by the General Partner, including in either case directly or indirectly through merger or sale of assets of the Partnership or otherwise, without the Consent of each such Partner adversely affected, affected if such amendment or action would (i) convert a Limited Partner Interest Partner’s interest in the Partnership into a General Partner Interest general partner’s interest (except as a the result of the General Partner acquiring such Partnership Interestinterest), (ii) modify the limited liability of a Limited Partner, (iii) alter the rights of any the Partner to receive the distributions to which such Partner is entitled, pursuant to Article 5 or Section 13.2A(4) hereof13.2.A(4), or alter the allocations specified in Article 6 hereof (except, in any case, except as permitted pursuant to Sections 4.2 4.3, 5.4 6.2.C and 7.3C Section 7.3.E(2) hereof), (iv) materially alter or modify the rights to a Redemption rights, Cash Amount or the REIT Shares Amount as set forth in Sections 8.6 Section 8.6, and 11.2 related definitions hereof, or amend or modify any related definitions, or (v) amend this Section 7.3D; provided, however, that the Consent of each Partner adversely affected shall not be required for any amendment or action that affects all Partners holding the same class or series of Partnership Units on a uniform or pro rata basis. 7.3.F. Further, no amendment may alter the restrictions on the General Partner’s authority set forth elsewhere in this Section 7.3 without the Consent specified thereinin such section. Any such amendment or In addition, notwithstanding Sections 7.3.B, 7.3.C, 7.3.D and 7.3.E hereof, Section 11.2 of this Agreement shall not be amended, and no action consented to by any Partner in contravention of Section 11.2 hereof shall be effective as to that Partnertaken, notwithstanding without the absence Consent of such consent by any other Partnerthe Limited Partners.
Appears in 2 contracts
Samples: Limited Partnership Agreement (Excel Trust, Inc.), Limited Partnership Agreement (Excel Trust, Inc.)
Restrictions on General Partner’s Authority. A. (a) The General Partner may not take any action in contravention of an express prohibition or limitation of this Agreement, including, Agreement without limitation:
(1) take any action that would make it impossible to carry on the ordinary business written Consent of a Majority in Interest of the Partnership, except Limited Partners or such other percentage of the Limited Partners as otherwise may be specifically provided in for under a provision of this Agreement;
(2) possess Partnership property, or assign any rights in specific Partnership property, for other than a Partnership purpose, except as otherwise provided in this Agreement;
(3) admit a Person as a Partner, except as otherwise provided in this Agreement;
(4) Agreement and may not perform any act that would subject a Limited Partner to liability as a general partner in any jurisdiction or any other liability, liability except as provided herein or under the Act; or.
(5) enter into any contract, mortgage, loan or other agreement that prohibits or restricts, or has the effect of prohibiting or restricting, the ability of (a) the General Partner, the Previous 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.
B. The General Partner shall not, without the prior Consent of the Limited Partners, undertake, on behalf of the Partnership, any of the following actions or enter into any transaction that would have the effect of such transactions:
(1i) except as provided in Section 7.3C Sections 4.2(a), 5.5, 6.2(b), 6.3(b)(vii) and 7.3(c) hereof, amend, modify or terminate this Agreement other than to reflect the admission, substitution, termination or withdrawal of Partners pursuant to Article 11 XI or Article 12 XII hereof;
(2ii) make a general assignment for the benefit of creditors or appoint or acquiesce in the appointment of a custodian, receiver or trustee for all or any part of the assets of the Partnership;; or
(3iii) institute any proceeding for bankruptcy on behalf of the Partnership; or
. Except as set forth below in Sections 7.3(d) and (4e) subject to the rights of Transfer or as otherwise expressly provided in Sections 11.1C and 11.2 hereofthis Agreement, approve or acquiesce to the Transfer of the Partnership Interest of this Agreement may be amended if it is approved by the General Partner, or admit into Partner and it receives the Partnership any additional or successor General Consent of Limited Partners.
C. (c) Notwithstanding Section 7.3B 7.3(b) hereof, the General Partner shall have the power, without the Consent of the Limited Partners, to amend this Agreement as may be required to facilitate or implement any of the following purposes:
(1i) to add to the obligations of the General Partner or surrender any right or power granted to the General Partner or any Affiliate of the General Partner for the benefit of the Limited Partners;
(2ii) to reflect the admission, substitution or withdrawal of Partners or the termination of the Partnership in accordance with this Agreement, and to amend Exhibits Exhibit A and C in connection with such admission, substitution or withdrawal;
(3iii) to reflect a change that is of an inconsequential nature and does not adversely affect the Limited Partners in any material respect, or to cure any ambiguity, correct or supplement any provision in this Agreement not inconsistent with law or with other provisions, or make other changes with respect to matters arising under this Agreement that will not be inconsistent with law or with the provisions of this AgreementAgreement (including, without limitation, pursuant to Section 6.3(b)(vii));
(4iv) to satisfy any requirements, conditions or guidelines contained in any order, directive, opinion, ruling or regulation of a federal or state agency or contained in federal or state law;
(5) (a) to reflect such changes as are reasonably necessary (i) for the General Partner or any other wholly owned subsidiary of a Special Limited Partner, as the case may be, to maintain its status as a “qualified REIT subsidiary” (within the meaning of Code Section 856(i)(2)) or (ii) for any Special Limited Partner Company to maintain its status as a REIT or to satisfy the REIT Requirements; (b) to reflect the Transfer of all or any part of a Partnership Interest among between the General Partner, the Special Limited Partners Company and any entity that is wholly owned, directly or any “qualified REIT subsidiary” (within indirectly, by the meaning of Code Section 856(i)(2)) with respect to any Special Limited PartnerCompany;
(6vi) to modify the manner in which Capital Accounts are computed (but only to the extent set forth in the definition of “Capital Account” or contemplated by the Code or the Regulations); and;
(7vii) the issuance of to issue additional Partnership Interests in accordance with Section 4.2;
(viii) to reflect any modification to this Agreement as is necessary or desirable (as determined by the General Partner in its sole and absolute discretion), including, without limitation, the definition of “Adjustment Factor,” to reflect the direct ownership of assets by the Company or the General Partner; and
(ix) to effectuate a split, reverse split, subdivision or combination or Partnership Common Units that applies equally to all Partnership Common Units. The General Partner will provide notice to the Limited Partners when any action under this Section 7.3C 7.3(c) is taken.
D. (d) Except as set forth in Section 7.3(c) hereof, without the Consent of a Majority in Interest of the Outside Limited Partners, this Agreement shall not be amended in a manner that disproportionately effects such Limited Partners, if such amendment would (i) alter the rights of any Partner to receive the distributions to which such Partner is entitled, pursuant to Article V or Section 13.2 hereof, or alter the allocations specified in Article VI hereof (except, in any case, as permitted pursuant to Sections 4.2, 5.5, 6.2(b) and 6.3(b)(vii)), (ii) alter or modify the Redemption rights, Cash Amount or REIT Shares Amount as set forth in Sections 8.6 and 11.2 hereof, or amend or modify any related definitions, or (iii) amend this Section 7.3(d).
(e) Notwithstanding Sections 7.3B 7.3(c) and 7.3C 7.3(d) hereof, this Agreement shall not be amended, and no action may be taken by the General Partner, without the Consent of each Partner adversely affectedaffected thereby, if such amendment or action would (i) convert a Limited Partner Interest in the Partnership into a General Partner Interest (except as a result of the General Partner acquiring such Partnership Interest), (ii) modify the limited liability of a Limited Partner, or (iii) alter the rights of any Partner to receive the distributions to which such Partner is entitled, pursuant to Article 5 or Section 13.2A(4) hereof, or alter the allocations specified in Article 6 hereof (except, in any case, as permitted pursuant to Sections 4.2 and 7.3C hereof), (iv) alter or modify the Redemption rights, Cash Amount or REIT Shares Amount as set forth in Sections 8.6 and 11.2 hereof, or amend or modify any related definitions, or (v) amend this Section 7.3D; provided, however, that the Consent of each Partner adversely affected shall not be required for any amendment or action that affects all Partners holding the same class or series of Partnership Units on a uniform or pro rata basis. Further, no amendment may alter the restrictions on the General Partner’s authority set forth elsewhere in this Section 7.3 without the Consent specified therein7.3(e). Any such amendment or action consented to by any Partner shall be effective as to that Partner, notwithstanding the absence of such consent by any other Partner.
Appears in 2 contracts
Samples: Limited Partnership Agreement (NorthStar Realty Europe Corp.), Limited Partnership Agreement (Northstar Realty Finance Corp.)
Restrictions on General Partner’s Authority. A. The General Partner may not take any action in contravention of this Agreement, including, without limitation:
(1i) take any action that would make it impossible to carry on the ordinary business of the Partnership, except as otherwise provided in this Agreement;
(2ii) possess Partnership property, or assign any rights in specific Partnership property, for other than a Partnership purpose, purpose except as otherwise provided in this Agreement;
(3iii) admit a Person as a Partner, except as otherwise provided in this AgreementAgreement (including with respect to the PLPs, who shall become Partners upon their receipt of Performance Units);
(4iv) perform any act that would subject a Limited Partner to liability as a general partner in any jurisdiction or any other liability, liability except as provided herein or under the Act; or
(5v) enter into any contract, mortgage, loan or other agreement that prohibits or restricts, or has the effect of prohibiting or restricting, the ability of (a) the General Partner, the Previous General Partner or the Partnership from satisfying its obligations under Section 8.6 hereof in full or (b) a Limited Partner from exercising to exercise its rights under Section 8.6 hereof to effect a Redemption in full, except, in either case, except with the written consent of such Limited Partner affected by the prohibition or restrictionPartner.
B. The General Partner shall not, without the prior Consent of the Partners (in addition to any Consent of the Limited PartnersPartners required by any other provision hereof), undertake, on behalf of the Partnership, any of the following actions or enter into any transaction that which would have the effect of such transactions:
(1i) except as provided in Section 7.3C hereof7.3.D below, amend, modify or terminate this Agreement other than to reflect the admission, substitution, termination or withdrawal of Partners partners pursuant to Article 11 or Article 12 hereof12;
(2ii) make a general assignment for the benefit of creditors or appoint or acquiesce in the appointment of a custodian, receiver or trustee for all or any part of the assets of the Partnership;
(3iii) institute any proceeding for bankruptcy on behalf of the Partnership;
(iv) confess a judgment against the Partnership; or
(4v) subject to the rights of Transfer provided in Sections 11.1C and 11.2 hereofenter into a merger (including a triangular merger), approve consolidation or acquiesce to the Transfer other combination of the Partnership Interest of the General Partner, with or admit into the Partnership any additional or successor General Partnersanother entity.
C. Except in the case of a Liquidating Event pursuant to Section 13.1 (other than Section 13.1.F), the General Partner shall not, without the prior Consent of the Limited Partners, undertake, on behalf of the Partnership, any actions or enter into any transaction which would have the effect of a dissolution of the Partnership, including a sale, exchange, transfer or other disposition of all or substantially all of the Partnership's assets in a single transaction or a series of related transactions.
D. Notwithstanding Sections 7.3.B and 7.3.C, but subject to Section 7.3B hereof7.3.E, the General Partner shall have the power, without the Consent of the Limited Partners, to amend this Agreement as may be required to facilitate or implement any of the following purposes:
(1i) to add to the obligations of the General Partner or surrender any right or power granted to the General Partner or any Affiliate of the General Partner for the benefit of the Limited Partners;
(2ii) to reflect the issuance of additional Partnership Interests pursuant to Sections 4.3.C, 4.3.F and 4.4, or the admission, substitution substitution, termination, reduction in Partnership Units or withdrawal of Partners or the termination of the Partnership in accordance with this Agreement, and to amend Exhibits Agreement (which may be effected through the replacement of Exhibit A and C in connection with such admission, substitution or withdrawalan amended Exhibit A);
(3iii) to set forth or amend the designations, rights, powers, duties, and preferences of the holders of any additional Partnership Interests issued pursuant to Article 4;
(iv) to reflect a change that is of an inconsequential nature and does not adversely affect the Limited Partners in any material respect, or to cure any ambiguityambiguity in, correct or supplement any provision in this Agreement not inconsistent with law or with other provisionsprovision, or make other changes with respect to matters arising under under, this Agreement that will not be inconsistent with law or with the provisions of this Agreement;
(4v) to satisfy any requirements, conditions conditions, or guidelines contained in any order, directive, opinion, ruling or regulation of a federal or Federal, state of local agency or contained in federal Federal, state or state local law;.
(5) (avi) to reflect such changes as are reasonably necessary (i) for the General Partner or any other wholly owned subsidiary of a Special Limited Partner, as the case may be, to maintain its status as a “qualified REIT subsidiary” (within the meaning of Code Section 856(i)(2)) or (ii) for any Special Limited Partner to maintain its status as a REIT REIT, including changes which may be necessitated due to a change in applicable law (or to satisfy an authoritative interpretation thereof) or a ruling of the REIT RequirementsIRS; and
(bvii) to reflect modify, as set forth in the Transfer definition of all or any part of a Partnership Interest among the General Partner, the Special Limited Partners or any “qualified REIT subsidiary” (within the meaning of Code Section 856(i)(2)) with respect to any Special Limited Partner;
(6) to modify "Capital Account," the manner in which Capital Accounts are computed (but only to the extent set forth in the definition of “Capital Account” or contemplated by the Code or the Regulations); and
(7) the issuance of additional Partnership Interests in accordance with Section 4.2. The General Partner will provide notice to the Limited Partners when any action under this Section 7.3C is takencomputed.
D. Notwithstanding Sections 7.3B and 7.3C hereof, this Agreement shall not be amended, and no action may be taken by the General Partner, without the Consent of each Partner adversely affected, if such amendment or action would (i) convert a Limited Partner Interest in the Partnership into a General Partner Interest (except as a result of the General Partner acquiring such Partnership Interest), (ii) modify the limited liability of a Limited Partner, (iii) alter the rights of any Partner to receive the distributions to which such Partner is entitled, pursuant to Article 5 or Section 13.2A(4) hereof, or alter the allocations specified in Article 6 hereof (except, in any case, as permitted pursuant to Sections 4.2 and 7.3C hereof), (iv) alter or modify the Redemption rights, Cash Amount or REIT Shares Amount as set forth in Sections 8.6 and 11.2 hereof, or amend or modify any related definitions, or (v) amend this Section 7.3D; provided, however, that the Consent of each Partner adversely affected shall not be required for any amendment or action that affects all Partners holding the same class or series of Partnership Units on a uniform or pro rata basis. Further, no amendment may alter the restrictions on the General Partner’s authority set forth elsewhere in this Section 7.3 without the Consent specified therein. Any such amendment or action consented to by any Partner shall be effective as to that Partner, notwithstanding the absence of such consent by any other Partner.
Appears in 2 contracts
Samples: Limited Partnership Agreement (Amb Property Lp), Limited Partnership Agreement (Amb Property Corp)
Restrictions on General Partner’s Authority. A. The General Partner may not take any action in contravention of this Agreement, including, without limitation:
(1) take any action that would make it impossible to carry on the ordinary business of the Partnership, except as otherwise provided in this Agreement;
(2) possess Partnership property, or assign any rights in specific Partnership property, for other than a Partnership purpose, except as otherwise provided in this Agreement;
(3) admit admitting a Person as a Partner, except as otherwise provided in this Agreement;
(43) perform 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 herein or under the Act; or;
(54) enter entering into any contract, mortgage, loan or other agreement that expressly prohibits or restricts, or has the effect of prohibiting or restricting, the ability of restricts (a) the General Partner, the Previous General Special Limited Partner or the Partnership from satisfying performing its specific obligations under Section 8.6 hereof in full 15.1 hereof, or (b) a Limited Partner from exercising its rights under Section 8.6 15.1 hereof to effect a Redemption in fullRedemption, except, in either case, with the written consent of such Limited Partner affected by the prohibition or restriction.
B. The General Partner shall not, without the prior Consent of the Limited Partners, undertake, undertake on behalf of the Partnership, any of the following actions or enter into any transaction that would have the effect of, any of such transactionsthe following actions:
(1) except as provided in Section 7.3C 7.3.C hereof, amend, modify or terminate this Agreement other than to reflect the admission, substitution, termination or withdrawal of Partners pursuant to Article 11 or Article 12 hereofAgreement;
(2) except as otherwise permitted by this Agreement, or in connection with a Termination Transaction effected in accordance with Section 11.7, Transfer any portion of the Partnership Interest of the General Partner or admit into the Partnership any additional or successor General Partner;
(3) except as otherwise permitted by this Agreement, or in connection with a Termination Transaction effected in accordance with Section 11.7, voluntarily withdraw as a general partner of the Partnership;
(4) make a general assignment for the benefit of creditors or appoint or acquiesce in the appointment of a custodian, receiver or trustee for all or any part of the assets of the Partnership;
(35) institute any proceeding for bankruptcy on behalf of the Partnership;
(6) a merger or consolidation of the Partnership with or into any other Person, or a conversion of the Partnership into any other entity, other than in connection with a Termination Transaction effected in accordance with Section 11.7; or
(47) a sale, lease, exchange or other transfer of all or substantially all of the assets of the Partnership not in the ordinary course of business, whether in a single transaction or a series of related transactions, other than in connection with a Termination Transaction effected in accordance with Section 11.7.
C. Notwithstanding Section 7.3.B hereof but subject to the rights of Transfer provided in Sections 11.1C and 11.2 hereof, approve or acquiesce to the Transfer any Holder of the any Partnership Interest of the General Partner, or admit into the set forth in a Partnership any additional or successor General Partners.
C. Notwithstanding Unit Designation and Section 7.3B hereof7.3.D, the General Partner shall have the power, without the Consent of the Partners or the consent or approval of any Limited PartnersPartner, to amend this Agreement as may be required to facilitate or implement any of the following purposes:
(1) to add to the obligations of the General Partner or surrender any right or power granted to the General Partner or any Affiliate of the General Partner for the benefit of the Limited Partners;
(2) to reflect the admission, substitution or withdrawal of Partners Partners, the Transfer of any Partnership Interest or the termination of the Partnership in accordance with this Agreement, and to amend Exhibits A and C the Register in connection with such admission, substitution substitution, withdrawal or withdrawalTransfer;
(3) to reflect a change that is of an inconsequential nature and or does not adversely affect the Limited Partners in any material respect, or to cure any ambiguity, correct or supplement any provision in this Agreement not inconsistent with law or with other provisions, or make other changes with respect to matters arising under this Agreement that will not be inconsistent with law or with the provisions of this Agreement;
(4) to satisfy any requirements, conditions or guidelines contained in any order, directive, opinion, ruling or regulation of a federal Federal or state agency or contained in federal Federal or state law;
(5) (a) to reflect such changes as are reasonably necessary (i) for the General Partner or any other wholly owned subsidiary of a Special Limited Partner, as the case may be, to maintain its status as a “qualified REIT subsidiary” (within the meaning of Code Section 856(i)(2)) or (ii) for any Special Limited Partner to maintain its status as a REIT or to satisfy the REIT Requirements; (b) to reflect the Transfer of all or any part of a Partnership Interest among the General Partner, the Special Limited Partners or any “qualified REIT subsidiary” (within the meaning of Code Section 856(i)(2)) with respect to any Special Limited Partner;
(6) to modify either or both of the manner in which items of Net Income or Net Loss are allocated pursuant to Article 6 or the manner in which Capital Accounts are adjusted, computed or maintained (but in each case only to the extent set forth in the definition of “Capital Account” or Section 5.5 or as contemplated by the Code or the Regulations); and;
(7) to reflect the issuance of additional Partnership Interests in accordance with Article 4;
(8) to set forth or amend the designations, preferences, conversion or other rights, voting powers, restrictions, limitations as to distributions, qualifications or terms or conditions of redemption of any additional Partnership Units issued pursuant to Article 4;
(9) if the Partnership is the Surviving Partnership in any Termination Transaction, to modify Section 4.2. The General 15.1 or any related definitions to provide the holders of interests in such Surviving Partnership rights that are consistent with Section 11.7C(v); and
(10) to reflect any other modification to this Agreement that is reasonably necessary for the business or operations of the Partnership or the Special Limited Partner will provide notice to the Limited Partners when any action under this and that does not violate Section 7.3C is taken.7.3.D.
D. Notwithstanding Sections 7.3B 7.3.B, 7.3.C and 7.3C Article 14 hereof, this Agreement shall not be amended, and no action may be taken by the General Partner, without the Consent consent of each Partner Partner, if any, adversely affectedaffected thereby, if such amendment or action would (i) convert a Limited Partner Interest in into a general partner of the Partnership into a General Partner Interest (except as a result of the Limited Partner becoming the General Partner acquiring such Partnership Interestpursuant to Section 12.1 or 13.1.A of this Agreement), (ii) modify the limited liability of a Limited Partner, (iii) adversely alter the rights of any Partner to receive the distributions to which such Partner is entitled, entitled pursuant to Article 5 or Section 13.2A(413.2.A(4) hereof, or alter the allocations specified in Article 6 hereof (except, in any case, as permitted pursuant to Sections 4.2 4.2, 5.5 and 7.3C 7.3.C hereof), (iv) alter or modify in a manner that adversely affects any Partner the Redemption rights, Cash Amount or REIT Shares Amount as set forth in Sections 8.6 and 11.2 Section 15.1 hereof, or amend or modify any related definitionsdefinitions (except for amendments to this Agreement or other actions that provide rights consistent with Section 11.7C(v)), or (v) amend this Section 7.3D7.3.D; provided, however, that the Consent consent of each any individual Partner adversely affected shall not be required for any amendment or action that affects all Partners holding the same class or series of Partnership Units on a uniform or pro rata basis, if approved by a Majority in Interest of the Partners of such class or series. Further, no amendment may alter the restrictions on the General Partner’s authority set forth elsewhere in this Section 7.3 without the Consent consent specified therein. Any such amendment or action consented to by any Partner shall be effective as to that Partner, notwithstanding the absence of such consent by any other Partner.
Appears in 2 contracts
Samples: Limited Partnership Agreement (Avenue N Holdings LLC), Agreement of Limited Partnership (CareTrust REIT, Inc.)
Restrictions on General Partner’s Authority. A. The General Partner may not take any action in contravention of this Agreement, including, without limitation:
(1i) take any action that would make it impossible to carry on the ordinary business of the Partnership, except as otherwise provided in this Agreement;
(2ii) possess Partnership property, or assign any rights in specific Partnership property, for other than a Partnership purpose, purpose except as otherwise provided in this Agreement;
(3iii) admit a Person as a Partner, except as otherwise provided in this Agreement;
(4iv) perform any act that would subject a Limited Partner to liability as a general partner in any jurisdiction or any other liability, liability except as provided herein or under the Act; or
(5v) enter into perform any contract, mortgage, loan or other agreement act that prohibits or restricts, or has the effect of prohibiting or restricting, the ability of (a) the General Partner, the Previous General Partner or would subject the Partnership from satisfying its obligations to regulation as an "investment company" as such term is defined 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 fullthe Investment Company Act of 1940, except, in either case, with the written consent of such Limited Partner affected by the prohibition or restrictionas amended.
B. The General Partner shall not, without the prior Consent of the Partners (in addition to any Consent of the Limited PartnersPartners required by any other provision hereof), undertake, on behalf of the Partnership, any of the following actions or enter into any transaction that which would have the effect of such transactions:
(1i) except as provided in Section 7.3C hereof7.3.D below, amend, modify or terminate this Agreement other than to reflect the admission, substitution, termination or withdrawal of Partners partners pursuant to Article 11 or Article 12 hereof12;
(2ii) make a general assignment for the benefit of creditors or appoint or acquiesce in the appointment of a custodian, receiver or trustee for all or any part of the assets of the Partnership;
(3iii) institute any proceeding for bankruptcy on behalf of the Partnership;
(iv) confess a judgment against the Partnership; or
(4v) subject to the rights of Transfer provided in Sections 11.1C and 11.2 hereofenter into a merger (including a triangular merger), approve consolidation or acquiesce to the Transfer other combination of the Partnership Interest of the General Partner, with or admit into the Partnership any additional or successor General Partnersanother entity.
C. Except in the case of a Liquidating Event pursuant to Section 13.1 (other than Section 13.1.F), the General Partner shall not, without the prior Consent of the Limited Partners, undertake, on behalf of the Partnership, any actions or enter into any transaction which would have the effect of a dissolution of the Partnership, including a sale, exchange, transfer or other disposition of all or substantially all of the Partnership's assets in a single transaction or a series of related transactions.
D. Notwithstanding Sections 7.3.B and 7.3.C, but subject to Section 7.3B hereof7.3.E, the General Partner shall have the power, without the Consent of the Limited Partners, to amend this Agreement as may be required to facilitate or implement any of the following purposes:
(1i) to add to the obligations of the General Partner or surrender any right or power granted to the General Partner or any Affiliate of the General Partner for the benefit of the Limited Partners;
(2ii) to reflect the issuance of additional Partnership Interests pursuant to Section 4.3.B, or the admission, substitution substitution, termination, reduction in Partnership Units or withdrawal of Partners or the termination of the Partnership in accordance with this Agreement, and to amend Exhibits Agreement (which may be effected through the replacement of Exhibit A and C in connection with such admission, substitution or withdrawalan amended Exhibit A);
(3iii) to set forth or amend the designations, rights, powers, duties, and preferences of the holders of any additional Partnership Interests issued pursuant to Article 4;
(iv) to reflect a change that is of an inconsequential nature and does not adversely affect the Limited Partners in any material respect, or to cure any ambiguityambiguity in, correct or supplement any provision in this Agreement not inconsistent with law or with other provisionsprovision, or make other changes with respect to matters arising under under, this Agreement that will not be inconsistent with law or with the provisions of this Agreement;
(4v) to satisfy any requirements, conditions conditions, or guidelines contained in any order, directive, opinion, ruling or regulation of a federal or Federal, state of local agency or contained in federal Federal, state or state local law;.
(5) (avi) to reflect such changes as are reasonably necessary (i) for AMB, in its capacity as the sole stockholder of the General Partner or any other wholly owned subsidiary of a Special Limited Partner, and as the case may besole general partner of the Operating Partnership, to maintain its status as a “qualified REIT subsidiary” REIT, including changes which may be necessitated due to a change in applicable law (within the meaning of Code Section 856(i)(2)or an authoritative interpretation thereof) or a ruling of the IRS; and
(ii) for any Special Limited Partner to maintain its status as a REIT or to satisfy the REIT Requirements; (bvii) to reflect modify, as set forth in the Transfer definition of all or any part of a Partnership Interest among the General Partner, the Special Limited Partners or any “qualified REIT subsidiary” (within the meaning of Code Section 856(i)(2)) with respect to any Special Limited Partner;
(6) to modify "Capital Account," the manner in which Capital Accounts are computed (but only to the extent set forth in the definition of “Capital Account” or contemplated by the Code or the Regulations); and
(7) the issuance of additional Partnership Interests in accordance with Section 4.2computed. The General Partner will provide notice to the Limited Partners when any action under this Section 7.3C 7.3.D is taken.
D. E. Notwithstanding Sections 7.3B 7.3.B, 7.3.C and 7.3C hereof7.3.D, this Agreement shall not be amended, and no action may be taken by the General Partner, including in either case through merger or sale of assets of the Partnership or otherwise, without the Consent of each Common Limited Partner or Preferred Limited Partner adversely affected, affected if such amendment or action would (i) convert a Limited Partner Interest Partner's interest in the Partnership into a General Partner Interest general partner's interest (except as a the result of the General Partner acquiring such Partnership Interestinterest), (ii) modify the limited liability of a Limited Partner, (iii) alter the rights of any the Partner to receive the distributions to which such Partner is entitled, pursuant to Article 5 or Section 13.2A(413.2.A(4) hereofor Articles 16, 17 or alter 18 or the allocations specified in Article 6 hereof (except, in any case, except as permitted pursuant to Sections 4.2 4.3 and 7.3C hereof7.3.D), (iv) alter the Series C Redemption or modify the Redemption rights, Cash Amount or REIT Shares Amount exchange rights as set forth in Sections 8.6 16.5 and 11.2 hereof16.8, respectively, the Series D Redemption or amend exchange rights as set forth in Sections 17.5 and 17.8, respectively or modify any related definitionsthe Series E Redemption or exchange rights as set forth in Sections 18.5 and 18.8, respectively, or (v) amend this Section 7.3D; provided, however, that the Consent of each Partner adversely affected shall not be required for any amendment or action that affects all Partners holding the same class or series of Partnership Units on a uniform or pro rata basis. 7.3.E. Further, no amendment may alter the restrictions on the General Partner’s 's authority set forth elsewhere in this Section 7.3 without the Consent specified therein. Any in such amendment or action consented to by any section.
F. The General Partner shall be effective not undertake to dispose of any Partnership Property specified in the agreements listed in Exhibit G in a taxable sale or taxable exchange prior to the dates specified in such agreements without the prior consent of each Limited Partner which contributed all or any portion of an interest in such Property to the Partnership, as to that Partner, notwithstanding the absence of set forth in such consent by any other Partneragreements.
Appears in 2 contracts
Samples: Agreement of Limited Partnership (Amb Property Corp), Agreement of Limited Partnership (Amb Property Lp)
Restrictions on General Partner’s Authority. A. The General Partner may not take any action in contravention of this Agreement, including, without limitation:
(1) take any action that would make it impossible to carry on the ordinary business of the Partnership, except as otherwise provided in this Agreement;
(2) possess Partnership property, or assign any rights in specific Partnership property, for other than a Partnership purpose, purpose except as otherwise provided in this Agreement;
(3) admit a Person as a Partner, except as otherwise provided in this Agreement;
(4) perform any act that would subject a Limited Partner to liability as a general partner in any jurisdiction or any other liability, liability except as provided herein or under the Act; or
(5) enter into any contract, mortgage, loan or other agreement that prohibits or restricts, or has the effect of prohibiting or restricting, the ability of (a) the General Partner, the Previous 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.
B. The General Partner shall not, without the prior Consent of the Limited Partners, undertake, on behalf of the Partnership, any of the following actions or enter into any transaction that would have the effect of such transactions:
(1) except as provided in Section 7.3C 7.3.C hereof, amend, modify or terminate this Agreement other than to reflect the admission, substitution, termination or withdrawal of Partners pursuant to Article 11 or Article 12 hereof;
(2) make a general assignment for the benefit of creditors or appoint or acquiesce in the appointment of a custodian, receiver or trustee for all or any part of the assets of the Partnership;
(3) institute any proceeding for bankruptcy on behalf of the Partnership; or
(4) subject to the rights of Transfer provided in Sections 11.1C 11.1.C and 11.2 hereof, approve or acquiesce to the Transfer of the Partnership Interest of the General Partner, or admit into the Partnership any additional or successor General Partners.
C. Notwithstanding Section 7.3B 7.3.B hereof, the General Partner shall have the power, without the Consent of the Limited Partners, to amend this Agreement as may be required to facilitate or implement any of the following purposes:
(1) to add to the obligations of the General Partner or surrender any right or power granted to the General Partner or any Affiliate of the General Partner for the benefit of the Limited Partners;
(2) to reflect the admission, substitution or withdrawal of Partners or the termination of the Partnership in accordance with this Agreement, and to amend Exhibits A and C in connection with such admission, substitution or withdrawal;
(3) to reflect a change that is of an inconsequential nature and does not adversely affect the Limited Partners in any material respect, or to cure any ambiguity, correct or supplement any provision in this Agreement not inconsistent with law or with other provisions, or make other changes with respect to matters arising under this Agreement that will not be inconsistent with law or with the provisions of this Agreement;
(4) to satisfy any requirements, conditions or guidelines contained in any order, directive, opinion, ruling or regulation of a federal or state agency or contained in federal or state law;
(5) (a) to reflect such changes as are reasonably necessary (i) for either the General Partner or any other wholly owned subsidiary of a the Special Limited Partner, as the case may be, to maintain its status as a “"qualified REIT subsidiary” (" within the meaning of Code Section 856(i)(2)) or (ii) for any Special Limited the Previous General Partner to maintain its status as a REIT or to satisfy the REIT RequirementsRequirement; (b) to reflect the Transfer of all or any part of a Partnership Interest among the Previous General Partner, the General Partner, the Special Limited Partners Partner or any “other "qualified REIT subsidiary” " (within the meaning of Code Section 856(i)(2)) with respect to any Special Limited the Previous General Partner;
(6) to modify the manner in which Capital Accounts are computed (but only to the extent set forth in the definition of “"Capital Account” " or contemplated by the Code or the Regulations); and
(7) the issuance of additional Partnership Interests in accordance with Section 4.2. The General Partner will provide notice to the Limited Partners when any action under this Section 7.3C 7.3.C is taken.
D. Notwithstanding Sections 7.3B 7.3.B and 7.3C 7.3.C hereof, this Agreement shall not be amended, and no action may be taken by the General Partner, without the Consent of each Partner adversely affected, if such amendment or action would (i) convert a Limited Partner Interest in the Partnership into a General Partner Interest (except as a result of the General Partner acquiring such Partnership Interest), (ii) modify the limited liability of a Limited Partner, (iii) alter the rights of any Partner to receive the distributions to which such Partner is entitled, pursuant to Article 5 or Section 13.2A(413.2.A(4) hereof, or alter the allocations specified in Article 6 hereof (except, in any case, as permitted pursuant to Sections 4.2 and 7.3C 7.3.C hereof), (iv) alter or modify the Redemption rights, Cash Amount or REIT Shares Amount as set forth in Sections 8.6 and 11.2 hereof, or amend or modify any related definitions, or (v) amend this Section 7.3D7.3.D; provided, however, that the Consent of each Partner adversely affected shall not be required for any amendment or action that affects all Partners holding the same class or series of Partnership Units on a uniform or pro rata basis. Further, no amendment may alter the restrictions on the General Partner’s 's authority set forth elsewhere in this Section 7.3 without the Consent specified therein. Any such amendment or action consented to by any Partner shall be effective as to that Partner, notwithstanding the absence of such consent by any other Partner.
Appears in 2 contracts
Samples: Limited Partnership Agreement (Aimco Properties Lp), Limited Partnership Agreement (Aimco Properties Lp)
Restrictions on General Partner’s Authority. A. The General Partner may not take any action in contravention of this Agreement, including, without limitation:
(1) take any action that would make it impossible to carry on the ordinary business of the Partnership, except as otherwise provided in this Agreement;
(2) possess Partnership property, or assign any rights in specific Partnership property, for other than a Partnership purpose, purpose except as otherwise provided in this Agreement;
(3) admit a Person as a Partner, except as otherwise provided in this Agreement;
(4) perform any act that would subject a Limited Partner to liability as a general partner in any jurisdiction or any other liability, liability except as provided herein or under the Act; or
(5) enter into any contract, mortgage, loan or other agreement that prohibits or restricts, or has the effect of prohibiting or restricting, the ability of (a) the General Partner, the Previous General Partner or the Partnership from satisfying its obligations under Section 8.6 hereof in full or (b) a Limited Partner from exercising to exercise its rights under Section 8.6 hereof to effect a Redemption in full, except, in either case, except with the written consent of such Limited Partner affected by the prohibition or restrictionPartner.
B. The General Partner shall not, without the prior Consent of the Limited Partners, (in addition to any Consent of the Limited Partners required by any other provision hereof) undertake, on behalf of the Partnership, any of the following actions or enter into any transaction that which would have the effect of such transactions:
(1) except as provided in Section 7.3C hereof7.3.E, amend, modify or terminate this Agreement other than to reflect the admission, substitution, termination or withdrawal of Partners partners pursuant to Article 11 or Article 12 hereof;
(2) make a general assignment for the benefit of creditors or appoint or acquiesce in the appointment of a custodian, receiver or trustee for all or any part of the assets of the Partnership;
(3) institute any proceeding for bankruptcy on behalf of the Partnership; or
(4) subject to confess a judgment against the rights Partnership.
C. The General Partner shall not, without the prior Consent of Transfer provided in Sections 11.1C and 11.2 hereofthe Limited Partners, undertake, on behalf of the Partnership, any of the following actions or enter into any transaction which would have the effect of such transactions:
(1) approve or acquiesce to the Transfer transfer of the Partnership Interest of the General Partner, or Partner to any Person other than the Partnership; or
(2) admit into the Partnership any additional Additional or successor Substitute General Partners.. in each case other than incident to a transaction pursuant to Section 11.2.B or Section 11.2.C.
C. D. If the aggregate Limited Partnership Interests of all Limited Partners represents 5.0% or more of the aggregate Partnership Interests, the General Partner shall not, without the prior Consent of the Limited Partners, undertake, on behalf of the Partnership, any of the following actions or enter into any transaction which would have the effect of such transactions:
(1) dissolve the Partnership, or
(2) prior to the seventh anniversary of the date of this Agreement, sell any of the property listed on Exhibit C, in each case other than incident to a transaction pursuant to Section 11.2.B or Section 11.2.C.
E. Notwithstanding Sections 7.3.B, 7.3.C and 7.3.D hereof, but subject to Section 7.3B 7.3.F hereof, the General Partner shall have the power, without the Consent of the Limited Partners, to amend this Agreement as may be required to facilitate or implement any of the following purposes:
(1) to add to the obligations of the General Partner or surrender any right or power granted to the General Partner or any Affiliate of the General Partner for the benefit of the Limited Partners;
(2) to reflect the issuance of additional Partnership Interests pursuant to Sections 4.3.C and 4.4 or the admission, substitution substitution, termination, or withdrawal of Partners or the termination of the Partnership in accordance with this Agreement, and to amend Exhibits A and C in connection with such admission, substitution or withdrawal;
(3) to reflect a change that is of an inconsequential nature and does not adversely affect the Limited Partners in any material respect, or to cure any ambiguityambiguity in, correct or supplement any provision in this Agreement not inconsistent with law or with other provisionsin, or make other changes with respect to matters arising under under, this Agreement that will not be inconsistent with law or with the provisions of this Agreement;
(4) to satisfy any requirements, conditions conditions, or guidelines contained in any order, directive, opinion, ruling or regulation of a federal or state agency or contained in federal or state law;
(5) (a) to reflect such changes as are reasonably necessary (i) for the General Partner or any other wholly owned subsidiary of a Special Limited Partner, as the case may be, to maintain its status as a “qualified REIT subsidiary” (within the meaning of Code Section 856(i)(2)) or (ii) for any Special Limited Partner to maintain its status as a REIT REIT, including changes which may be necessitated due to a change in applicable law (or to satisfy an authoritative interpretation thereof) or a ruling of the REIT RequirementsIRS; (b) to reflect the Transfer of all or any part of a Partnership Interest among the General Partner, the Special Limited Partners or any “qualified REIT subsidiary” (within the meaning of Code Section 856(i)(2)) with respect to any Special Limited Partner;and
(6) to modify the manner in which Capital Accounts are computed (but only to the extent modify, as set forth in the definition of “Capital Account,” or contemplated by the Code or the Regulations); and
(7) the issuance of additional Partnership Interests manner in accordance with Section 4.2which Capital Accounts are computed. The General Partner will provide notice to the Limited Partners when any action under this Section 7.3C 7.3.E is taken.
D. F. Notwithstanding Sections 7.3B 7.3.B, 7.3.C, 7.3.D and 7.3C 7.3.E hereof, this Agreement shall not be amended, and no action may be taken by the General Partner, without the Consent of each Common Limited Partner or Preferred Limited Partner adversely affected, affected if such amendment or action would (i) convert a Limited Partner Interest Partner’s interest in the Partnership into a General Partner Interest general partner’s interest (except as a the result of the General Partner acquiring such Partnership Interestinterest), (ii) modify the limited liability of a Limited Partner, (iii) alter the rights of any Partner to receive the distributions to which such Partner is entitled, pursuant to Article 5 or Section 13.2A(4) hereof, or alter the allocations specified in Article 6 hereof (except, in any case, as permitted pursuant to Sections 4.2 and 7.3C hereof), (iv) alter or modify the Redemption rights, Cash Amount or REIT Shares Amount as set forth in Sections 8.6 and 11.2 hereof, or amend or modify any related definitions, or (v) amend this Section 7.3D; provided, however, that the Consent of each Partner adversely affected shall not be required for any amendment or action that affects all Partners holding the same class or series of Partnership Units on a uniform or pro rata basis. Further, no amendment may alter the restrictions on the General Partner’s authority set forth elsewhere in this Section 7.3 without the Consent specified therein. Any such amendment or action consented to by any Partner shall be effective as to that Partner, notwithstanding the absence of such consent by any other Partner.,
Appears in 2 contracts
Samples: Limited Partnership Agreement (Kilroy Realty, L.P.), Agreement of Limited Partnership (Kilroy Realty, L.P.)
Restrictions on General Partner’s Authority. A. The General Partner may not take any action in contravention of this Agreement, including, without limitation:
(1i) take any action that would make it impossible to carry on the ordinary business of the Partnership, except as otherwise provided in this Agreement;
(2ii) possess Partnership property, or assign any rights in specific Partnership property, for other than a Partnership purpose, purpose except as otherwise provided in this Agreement;
(3iii) admit a Person as a Partner, except as otherwise provided in this Agreement;
(4iv) perform any act that would subject a Limited Partner to liability as a general partner in any jurisdiction or any other liability, liability except as provided herein or under the Act; or
(5v) enter into perform any contract, mortgage, loan or other agreement act that prohibits or restricts, or has the effect of prohibiting or restricting, the ability of (a) the General Partner, the Previous General Partner or would subject the Partnership from satisfying its obligations to regulation as an "investment company" as such term is defined 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 fullthe Investment Company Act of 1940, except, in either case, with the written consent of such Limited Partner affected by the prohibition or restrictionas amended.
B. The General Partner shall not, without the prior Consent of the Partners (in addition to any Consent of the Limited PartnersPartners required by any other provision hereof), undertake, on behalf of the Partnership, any of the following actions or enter into any transaction that which would have the effect of such transactions:
(1i) except as provided in Section 7.3C hereof7.3.D below, amend, modify or terminate this Agreement other than to reflect the admission, substitution, termination or withdrawal of Partners partners pursuant to Article 11 or Article 12 hereof12;
(2ii) make a general assignment for the benefit of creditors or appoint or acquiesce in the appointment of a custodian, receiver or trustee for all or any part of the assets of the Partnership;
(3iii) institute any proceeding for bankruptcy on behalf of the Partnership;
(iv) confess a judgment against the Partnership; or
(4v) subject to the rights of Transfer provided in Sections 11.1C and 11.2 hereofenter into a merger (including a triangular merger), approve consolidation or acquiesce to the Transfer other combination of the Partnership Interest of the General Partner, with or admit into the Partnership any additional or successor General Partnersanother entity.
C. Notwithstanding Except in the case of a Liquidating Event pursuant to Section 7.3B hereof13.1 (other than Section 13.1.F), the General Partner shall have the powernot, without the prior Consent of the Limited Partners, to amend this Agreement as may be required to facilitate or implement any undertake, on behalf of the following purposes:
(1) to add to Partnership, any actions or enter into any transaction which would have the obligations effect of a dissolution of the General Partner or surrender any right or power granted to the General Partner or any Affiliate of the General Partner for the benefit of the Limited Partners;
(2) to reflect the admissionPartnership, substitution or withdrawal of Partners or the termination of the Partnership in accordance with this Agreementincluding a sale, and to amend Exhibits A and C in connection with such admissionexchange, substitution or withdrawal;
(3) to reflect a change that is of an inconsequential nature and does not adversely affect the Limited Partners in any material respect, or to cure any ambiguity, correct or supplement any provision in this Agreement not inconsistent with law or with other provisions, or make other changes with respect to matters arising under this Agreement that will not be inconsistent with law or with the provisions of this Agreement;
(4) to satisfy any requirements, conditions or guidelines contained in any order, directive, opinion, ruling or regulation of a federal or state agency or contained in federal or state law;
(5) (a) to reflect such changes as are reasonably necessary (i) for the General Partner or any other wholly owned subsidiary of a Special Limited Partner, as the case may be, to maintain its status as a “qualified REIT subsidiary” (within the meaning of Code Section 856(i)(2)) or (ii) for any Special Limited Partner to maintain its status as a REIT or to satisfy the REIT Requirements; (b) to reflect the Transfer of all or any part of a Partnership Interest among the General Partner, the Special Limited Partners or any “qualified REIT subsidiary” (within the meaning of Code Section 856(i)(2)) with respect to any Special Limited Partner;
(6) to modify the manner in which Capital Accounts are computed (but only to the extent set forth in the definition of “Capital Account” or contemplated by the Code or the Regulations); and
(7) the issuance of additional Partnership Interests in accordance with Section 4.2. The General Partner will provide notice to the Limited Partners when any action under this Section 7.3C is taken.
D. Notwithstanding Sections 7.3B and 7.3C hereof, this Agreement shall not be amended, and no action may be taken by the General Partner, without the Consent of each Partner adversely affected, if such amendment or action would (i) convert a Limited Partner Interest in the Partnership into a General Partner Interest (except as a result of the General Partner acquiring such Partnership Interest), (ii) modify the limited liability of a Limited Partner, (iii) alter the rights of any Partner to receive the distributions to which such Partner is entitled, pursuant to Article 5 or Section 13.2A(4) hereof, or alter the allocations specified in Article 6 hereof (except, in any case, as permitted pursuant to Sections 4.2 and 7.3C hereof), (iv) alter or modify the Redemption rights, Cash Amount or REIT Shares Amount as set forth in Sections 8.6 and 11.2 hereof, or amend or modify any related definitions, or (v) amend this Section 7.3D; provided, however, that the Consent of each Partner adversely affected shall not be required for any amendment or action that affects all Partners holding the same class or series of Partnership Units on a uniform or pro rata basis. Further, no amendment may alter the restrictions on the General Partner’s authority set forth elsewhere in this Section 7.3 without the Consent specified therein. Any such amendment or action consented to by any Partner shall be effective as to that Partner, notwithstanding the absence of such consent by any other Partner.transfer or
Appears in 1 contract
Restrictions on General Partner’s Authority. A. The General Partner may not take any action in contravention of this Agreement, including, without limitation:
(1i) take any action that would make it impossible to carry on the ordinary business of the Partnership, except as otherwise provided in this Agreement;
(2ii) possess Partnership property, or assign any rights in specific Partnership property, for other than a Partnership purpose, purpose except as otherwise provided in this Agreement;
(3iii) admit a Person as a Partner, except as otherwise provided in this Agreement;
(4iv) perform any act that would subject a Limited Partner to liability as a general partner in any jurisdiction or any other liability, liability except as provided herein or under the Act; or
(5v) enter into perform any contract, mortgage, loan or other agreement act that prohibits or restricts, or has the effect of prohibiting or restricting, the ability of (a) the General Partner, the Previous General Partner or would subject the Partnership from satisfying its obligations to regulation as an "investment company" as such term is defined 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 fullthe Investment Company Act of 1940, except, in either case, with the written consent of such Limited Partner affected by the prohibition or restrictionas amended.
B. The General Partner shall not, without the prior Consent of the Partners (in addition to any Consent of the Limited PartnersPartners required by any other provision hereof), undertake, on behalf of the Partnership, any of the following actions or enter into any transaction that which would have the effect of such transactions:
(1i) except as provided in Section 7.3C hereof7.3.D below, amend, modify or terminate this Agreement other than to reflect the admission, substitution, termination or withdrawal of Partners partners pursuant to Article 11 or Article 12 hereof12;
(2ii) make a general assignment for the benefit of creditors or appoint or acquiesce in the appointment of a custodian, receiver or trustee for all or any part of the assets of the Partnership;
(3iii) institute any proceeding for bankruptcy on behalf of the Partnership;
(iv) confess a judgment against the Partnership; or
(4v) subject to the rights of Transfer provided in Sections 11.1C and 11.2 hereofenter into a merger (including a triangular merger), approve consolidation or acquiesce to the Transfer other combination of the Partnership Interest of the General Partner, with or admit into the Partnership any additional or successor General Partnersanother entity.
C. Except in the case of a Liquidating Event pursuant to Section 13.1 (other than Section 13.1.F), the General Partner shall not, without the prior Consent of the Limited Partners, undertake, on behalf of the Partnership, any actions or enter into any transaction which would have the effect of a dissolution of the Partnership, including a sale, exchange, transfer or other disposition of all or substantially all of the Partnership's assets in a single transaction or a series of related transactions.
D. Notwithstanding Sections 7.3.B and 7.3.C, but subject to Section 7.3B hereof7.3.E, the General Partner shall have the power, without the Consent of the Limited Partners, to amend this Agreement as may be required to facilitate or implement any of the following purposes:
(1i) to add to the obligations of the General Partner or surrender any right or power granted to the General Partner or any Affiliate of the General Partner for the benefit of the Limited Partners;
(2ii) to reflect the issuance of additional Partnership Interests pursuant to Section 4.3.B, or the admission, substitution substitution, termination, reduction in Partnership Units or withdrawal of Partners or the termination of the Partnership in accordance with this Agreement, and to amend Exhibits Agreement (which may be effected through the replacement of Exhibit A and C in connection with such admission, substitution or withdrawalan amended Exhibit A);
(3iii) to set forth or amend the designations, rights, powers, duties, and preferences of the holders of any additional Partnership Interests issued pursuant to Article 4;
(iv) to reflect a change that is of an inconsequential nature and does not adversely affect the Limited Partners in any material respect, or to cure any ambiguityambiguity in, correct or supplement any provision in this Agreement not inconsistent with law or with other provisionsprovision, or make other changes with respect to matters arising under under, this Agreement that will not be inconsistent with law or with the provisions of this Agreement;
(4v) to satisfy any requirements, conditions conditions, or guidelines contained in any order, directive, opinion, ruling or regulation of a federal or Federal, state of local agency or contained in federal Federal, state or state local law;.
(5) (avi) to reflect such changes as are reasonably necessary (i) for AMB, in its capacity as the sole stockholder of the General Partner or any other wholly owned subsidiary of a Special Limited Partner, and as the case may besole general partner of the Operating Partnership, to maintain its status as a “qualified REIT subsidiary” REIT, including changes which may be necessitated due to a change in applicable law (within the meaning of Code Section 856(i)(2)or an authoritative interpretation thereof) or a ruling of the IRS; and
(ii) for any Special Limited Partner to maintain its status as a REIT or to satisfy the REIT Requirements; (bvii) to reflect modify, as set forth in the Transfer definition of all or any part of a Partnership Interest among the General Partner, the Special Limited Partners or any “qualified REIT subsidiary” (within the meaning of Code Section 856(i)(2)) with respect to any Special Limited Partner;
(6) to modify "Capital Account," the manner in which Capital Accounts are computed (but only to the extent set forth in the definition of “Capital Account” or contemplated by the Code or the Regulations); and
(7) the issuance of additional Partnership Interests in accordance with Section 4.2computed. The General Partner will provide notice to the Limited Partners when any action under this Section 7.3C 7.3.D is taken.
D. E. Notwithstanding Sections 7.3B 7.3.B, 7.3.C and 7.3C hereof7.3.D, this Agreement shall not be amended, and no action may be taken by the General Partner, including in either case through merger or sale of assets of the Partnership or otherwise, without the Consent of each Common Limited Partner or Preferred Limited Partner adversely affected, affected if such amendment or action would (i) convert a Limited Partner Interest Partner's interest in the Partnership into a General Partner Interest general partner's interest (except as a the result of the General Partner acquiring such Partnership Interestinterest), (ii) modify the limited liability of a Limited Partner, (iii) alter the rights of any the Partner to receive the distributions to which such Partner is entitled, pursuant to Article 5 or Section 13.2A(413.2.A(4) hereofor Articles 17, 18 or alter 19 or the allocations specified in Article 6 hereof (except, in any case, except as permitted pursuant to Sections 4.2 4.3 and 7.3C hereof7.3.D), (iv) alter the Series D Redemption or modify the Redemption rights, Cash Amount or REIT Shares Amount exchange rights as set forth in Sections 8.6 17.5 and 11.2 hereof17.8, respectively, the Series E Redemption or exchange rights as set forth in Sections 18.5 and 18.8, respectively, the Series F Redemption or exchange rights as set forth in Sections 19.5 and 19.8, respectively, the Series H Redemption or exchange rights as set forth in Sections 21.5 and 21.8, respectively, or amend the Series I Redemption or modify any related definitionsexchange rights as set forth in Sections 22.5 and 22.8, respectively, or (v) amend this Section 7.3D; provided, however, that the Consent of each Partner adversely affected shall not be required for any amendment or action that affects all Partners holding the same class or series of Partnership Units on a uniform or pro rata basis. 7.3.E. Further, no amendment may alter the restrictions on the General Partner’s 's authority set forth elsewhere in this Section 7.3 without the Consent specified therein. Any in such amendment or action consented to by any section.
F. The General Partner shall be effective not undertake to dispose of any Partnership Property specified in the agreements listed in Exhibit G in a taxable sale or taxable exchange prior to the dates specified in such agreements without the prior consent of each Limited Partner which contributed all or any portion of an interest in such Property to the Partnership, as to that Partner, notwithstanding the absence of set forth in such consent by any other Partneragreements.
Appears in 1 contract
Restrictions on General Partner’s Authority. A. The General Partner may not take any action in contravention of this Agreement, including, without limitation:
(1i) take any action that would make it impossible to carry on the ordinary business of the Partnership, except as otherwise provided in this Agreement;
(2ii) possess Partnership property, or assign any rights in specific Partnership property, for other than a Partnership purpose, purpose except as otherwise provided in this Agreement;
(3iii) admit a Person as a Partner, except as otherwise provided in this AgreementAgreement (including with respect to the PLPs, who shall become Partners upon their receipt of Performance Units);
(4iv) perform any act that would subject a Limited Partner to liability as a general partner in any jurisdiction or any other liability, liability except as provided herein or under the Act; or
(5v) enter into any contract, mortgage, loan or other agreement that prohibits or restricts, or has the effect of prohibiting or restricting, the ability of (a) the General Partner, the Previous General Partner or the Partnership from satisfying its obligations under Section 8.6 hereof in full or (b) a Limited Partner from exercising to exercise its rights under Section 8.6 hereof to effect a Redemption in full, except, in either case, except with the written consent of such Limited Partner affected by the prohibition or restrictionPartner.
B. The General Partner shall not, without the prior Consent of the Partners (in addition to any Consent of the Limited PartnersPartners required by any other provision hereof), undertake, on behalf of the Partnership, any of the following actions or enter into any transaction that which would have the effect of such transactions:
(1i) except as provided in Section 7.3C hereof7.3.D below, amend, modify or terminate this Agreement other than to reflect the admission, substitution, termination or withdrawal of Partners partners pursuant to Article 11 or Article 12 hereof12;
(2ii) make a general assignment for the benefit of creditors or appoint or acquiesce in the appointment of a custodian, receiver or trustee for all or any part of the assets of the Partnership;
(3iii) institute any proceeding for bankruptcy on behalf of the Partnership;
(iv) confess a judgment against the Partnership; or
(4v) subject to the rights of Transfer provided in Sections 11.1C and 11.2 hereofenter into a merger (including a triangular merger), approve consolidation or acquiesce to the Transfer other combination of the Partnership Interest of the General Partner, with or admit into the Partnership any additional or successor General Partnersanother entity.
C. Except in the case of a Liquidating Event pursuant to Section 13.1 (other than Section 13.1.F), the General Partner shall not, without the prior Consent of the Limited Partners, undertake, on behalf of the Partnership, any actions or enter into any transaction which would have the effect of a dissolution of the Partnership, including a sale, exchange, transfer or other disposition of all or substantially all of the Partnership’s assets in a single transaction or a series of related transactions.
D. Notwithstanding Sections 7.3.B and 7.3.C, but subject to Section 7.3B hereof7.3.E, the General Partner shall have the power, without the Consent of the Limited Partners, to amend this Agreement as may be required to facilitate or implement any of the following purposes:
(1i) to add to the obligations of the General Partner or surrender any right or power granted to the General Partner or any Affiliate of the General Partner for the benefit of the Limited Partners;
(2ii) to reflect the issuance of additional Partnership Interests pursuant to Sections 4.3.C, 4.3.F and 4.4, or the admission, substitution substitution, termination, reduction in Partnership Units or withdrawal of Partners or the termination of the Partnership in accordance with this Agreement, and to amend Exhibits Agreement (which may be effected through the replacement of Exhibit A and C in connection with such admission, substitution or withdrawalan amended Exhibit A);
(3iii) to set forth or amend the designations, rights, powers, duties, and preferences of the holders of any additional Partnership Interests issued pursuant to Article 4;
(iv) to reflect a change that is of an inconsequential nature and does not adversely affect the Limited Partners in any material respect, or to cure any ambiguityambiguity in, correct or supplement any provision in this Agreement not inconsistent with law or with other provisionsprovision, or make other changes with respect to matters arising under under, this Agreement that will not be inconsistent with law or with the provisions of this Agreement;
(4v) to satisfy any requirements, conditions conditions, or guidelines contained in any order, directive, opinion, ruling or regulation of a federal or Federal, state of local agency or contained in federal Federal, state or state local law;.
(5) (avi) to reflect such changes as are reasonably necessary (i) for the General Partner or any other wholly owned subsidiary of a Special Limited Partner, as the case may be, to maintain its status as a “qualified REIT subsidiary” (within the meaning of Code Section 856(i)(2)) or (ii) for any Special Limited Partner to maintain its status as a REIT REIT, including changes which may be necessitated due to a change in applicable law (or to satisfy an authoritative interpretation thereof) or a ruling of the REIT RequirementsIRS; and
(bvii) to reflect the Transfer of all or any part of a Partnership Interest among the General Partnermodify, the Special Limited Partners or any “qualified REIT subsidiary” (within the meaning of Code Section 856(i)(2)) with respect to any Special Limited Partner;
(6) to modify the manner in which Capital Accounts are computed (but only to the extent as set forth in the definition of “Capital Account,” or contemplated by the Code or the Regulations); and
(7) the issuance of additional Partnership Interests manner in accordance with Section 4.2which Capital Accounts are computed. The General Partner will provide notice to the Limited Partners when any action under this Section 7.3C 7.3.D is taken.
D. E. Notwithstanding Sections 7.3B 7.3.B, 7.3.C and 7.3C hereof7.3.D, this Agreement shall not be amended, and no action may be taken by the General Partner, including in either case through merger or sale of assets of the Partnership or otherwise, without the Consent of each Common Limited Partner or Preferred Limited Partner adversely affected, affected if such amendment or action would (i) convert a Limited Partner Interest Partner’s interest in the Partnership into a General Partner Interest general partner’s interest (except as a the result of the General Partner acquiring such Partnership Interestinterest), (ii) modify the limited liability of a Limited Partner, (iii) alter the rights of any the Partner to receive the distributions to which such Partner is entitled, pursuant to Article 5 5, Section 13.2.A(4), Article 20, Article 21, Article 22, Article 23, Article 24, Article 25 or Section 13.2A(4) hereof, Article 26 or alter the allocations specified in Article 6 hereof (except, in any case, except as permitted pursuant to Sections 4.2 Section 4.3 and 7.3C hereofSection 7.3.D), (iv) alter or modify the rights to a Redemption rights, Cash Amount or the REIT Shares Amount as set forth in Sections 8.6 Section 8.6, and 11.2 related definitions hereof, or amend or modify any related definitions, or (v) amend this Section 7.3D; provided, however, that the Consent of each Partner adversely affected shall not be required for any amendment or action that affects all Partners holding the same class or series of Partnership Units on a uniform or pro rata basis. 7.3.E. Further, no amendment may alter the restrictions on the General Partner’s authority set forth elsewhere in this Section 7.3 without the Consent specified thereinin such section. Any such amendment In addition, (a) Section 11.2 of this Agreement shall not be amended, and no action in contravention of Section 11.2 shall be taken, including in either case through merger or sale of assets of the Partnership or otherwise, without the Consent of the Limited Partners and (b) this Agreement shall not be amended, and no action consented shall be taken, including in either case through merger or sale of assets of the Partnership or otherwise, which would adversely affect the rights of the Persons set forth in Exhibit G to by any receive Performance Units as described herein.
F. Other than incident to a transaction pursuant to Sections 11.2.B or 11.2.C, the General Partner shall be effective not undertake to dispose of any Partnership Property specified in the agreements listed in Exhibit H in a taxable sale or taxable exchange prior to the dates specified in such agreements without the prior consent of each Limited Partner which contributed all or any portion of an interest in such Property to the Partnership, as to that Partner, notwithstanding the absence of set forth in such consent by any other Partneragreements.
Appears in 1 contract
Restrictions on General Partner’s Authority. A. (a) The General Partner may shall not take any action in contravention of this Agreement, including, . Specifically (but without limitation), the General Partner shall not:
(1i) take any action that would make it impossible to carry on the ordinary business of the Partnership, except as otherwise provided in this Agreement;
(2ii) possess Partnership property, or assign any rights in specific Partnership property, for other than a Partnership purpose, purpose except as otherwise provided in this Agreement;
(3iii) admit a Person as a Partner, except as otherwise provided in this Agreement;
(4iv) perform any act that would subject a Limited Partner to liability as a general partner in any jurisdiction Jurisdiction or any other liability, liability except as provided herein or under the Act; or
(5v) enter into any contract, mortgage, loan or other agreement that prohibits or restricts, or has the effect of prohibiting or restrictingrestricting (except delays permitted under the definition "Specified Redemption Date"), the ability of (aA) the General Partner, the Previous General Partner or the Partnership from satisfying its obligations under Section 8.6 hereof in full or (bB) 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 the Limited Partner affected by the prohibition or restriction.
B. (b) The General Partner shall not, without the prior Consent of the Limited Partners, undertake, on behalf of the Partnership, any of the following actions or enter into any transaction that would have the effect of such transactionsactions:
(1i) except as provided in Section 7.3C 7.3(c) hereof, amend, modify or terminate this Agreement other than to reflect the admission, substitution, termination or withdrawal of Partners pursuant to Article 11 I I or Article 12 hereof;
(2ii) make a general assignment for the benefit of creditors or appoint or acquiesce in the appointment of a custodian, receiver or trustee for all or any part of the assets of the Partnership;
(3iii) institute any proceeding for bankruptcy on behalf of the Partnership; or
(4iv) subject to the rights of Transfer provided in Sections 11.1C and Section 11.2 hereof, approve or acquiesce to the Transfer of the Partnership Interest of the General Partner, or admit into the Partnership any additional or successor General Partners.
C. (c) Notwithstanding Section 7.3B Sections 7.3(b) and 14.2 hereof, the General Partner shall have the power, without the Consent of the Limited Partners, to amend this Agreement as may be required to facilitate or implement any of the following purposes:
(1i) for the benefit of the Limited Partners, to add to the obligations of the General Partner or surrender any right or power granted to the General Partner or any Affiliate of the General Partner for the benefit of the Limited PartnersPartner;
(2ii) to reflect the admission, substitution or withdrawal of Partners or the termination of the Partnership in accordance with this Agreement, and to amend Exhibits Exhibit A and C in connection with such admission, substitution or withdrawal;; ---------
(3iii) to reflect a change that is of an inconsequential nature and does not adversely affect any of the Limited Partners in any material respect, or to cure any ambiguity, correct or supplement any provision in this Agreement not inconsistent with law or with other provisionsprovisions of this Agreement, or make other changes with respect to matters arising under this Agreement that will not be inconsistent with law or with the other provisions of this Agreement;
(4iv) to reflect a change consistent with an express grant of authority to the General Partner under this Agreement;
(v) to satisfy any requirements, conditions or guidelines contained in any applicable order, directive, opinion, ruling or regulation of a federal or state agency or contained in federal or state law;
(5) (avi) to reflect such changes as are reasonably necessary (i) for the General Partner or any other wholly owned subsidiary of a Special Limited Partner, as the case may be, to maintain its status as a “qualified REIT subsidiary” (within the meaning of Code Section 856(i)(2)) or (ii) for any Special Limited Partner Meridian to maintain its status as a REIT or to satisfy the REIT Requirements; (b) to reflect the Transfer of all or any part of a Partnership Interest among the General Partner, the Special Limited Partners or any “qualified REIT subsidiary” (within the meaning of Code Section 856(i)(2)) with respect to any Special Limited Partner;and
(6vii) to modify the manner in which Capital Accounts are computed (but only to the extent set forth in the definition of “"Capital Account” " or contemplated by the Code or the Treasury Regulations); and
(7) the issuance of additional Partnership Interests in accordance with Section 4.2. The General Partner will provide notice to the Limited Partners when any action under this Section 7.3C 73(c) is taken.
D. (d) Notwithstanding Sections 7.3B 7.3(b), 7.3(c) and 7.3C 14.2 hereof, this Agreement shall not be amended, and no action may be taken by the General Partner, without 'Without the Consent of each Partner adversely affected, if such amendment or action would (i) convert a Limited Partner Interest in the Partnership into a General Partner Interest (except as a result of the General Partner acquiring such Partnership Interest), (ii) modify the limited liability of a Limited Partner, (iii) alter the rights of any the Partner to receive the distributions to which such Partner is entitled, pursuant to Article 5 or Section 13.2A(413.2(a)(iv) hereof, or alter the allocations specified in Article 6 hereof (except, except in any case, case as permitted pursuant to Sections 4.2 4.4 and 7.3C 7.3(c) hereof), (iv) alter or modify the Redemption rightsRights, Cash Amount or REIT Shares Amount as set forth in Sections 8.6 and 11.2 11.3 hereof, or amend or modify any related definitions, or (v) amend or modify the provisions of any Partner Schedule, or (vi) amend this Section 7.3D; provided, however, that the Consent of each Partner adversely affected shall not be required for any amendment or action that affects all Partners holding the same class or series of Partnership Units on a uniform or pro rata basis7.3(d). Further, no amendment may alter the restrictions on the General Partner’s 's authority set forth elsewhere in this Section 7.3 without the Consent specified therein. Any such amendment or action consented to by any Partner shall be effective as to that Partner, notwithstanding the absence of such consent by any other Partner.
Appears in 1 contract
Restrictions on General Partner’s Authority. A. The General Partner may not take any action in contravention of this Agreement, including, without limitation:
(1) take any action that would make it impossible to carry on the ordinary business of the Partnership, except as otherwise provided in this Agreement;
(2) possess Partnership property, or assign any rights in specific Partnership property, for other than a Partnership purpose, purpose except as otherwise provided in this Agreement;
(3) admit a Person as a Partner, except as otherwise provided in this Agreement;
(4) perform any act that would subject a Limited Partner to liability as a general partner in any jurisdiction or any other liability, liability except as provided herein or under the Act; or
(5) enter into any contract, mortgage, loan or other agreement that prohibits or restricts, or has the effect of prohibiting or restricting, the ability of (a) the General Partner, the Previous 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.
B. The General Partner shall not, without the prior Consent of the Limited Partners, undertake, on behalf of the Partnership, any of the following actions or enter into any transaction that would have the effect of such transactions:
(1) except as provided in Section 7.3C 7.3.C hereof, amend, modify or terminate this Agreement other than to reflect the admission, substitution, termination or withdrawal of Partners pursuant to Article 11 or Article 12 hereof;
(2) make a general assignment for the benefit of creditors or appoint or acquiesce in the appointment of a custodian, receiver or trustee for all or any part of the assets of the Partnership;
(3) institute any proceeding for bankruptcy on behalf of the Partnership; or
(4) subject to the rights of Transfer provided in Sections 11.1C 11.1.C and 11.2 hereof, approve or acquiesce to the Transfer of the Partnership Interest of the General Partner, or admit into the Partnership any additional or successor General Partners.
C. Notwithstanding Section 7.3B 7.3.B hereof, the General Partner shall have the power, without the Consent of the Limited Partners, to amend this Agreement as may be required to facilitate or implement any of the following purposes:
(1) to add to the obligations of the General Partner or surrender any right or power granted to the General Partner or any Affiliate of the General Partner for the benefit of the Limited Partners;
(2) to reflect the admission, substitution or withdrawal of Partners or the termination of the Partnership in accordance with this Agreement, and to amend Exhibits A and C in connection with such admission, substitution or withdrawal;
(3) to reflect a change that is of an inconsequential nature and does not adversely affect the Limited Partners in any material respect, or to cure any ambiguity, correct or supplement any provision in this Agreement not inconsistent with law or with other provisions, or make other changes with respect to matters arising under this Agreement that will not be inconsistent with law or with the provisions of this Agreement;
(4) to satisfy any requirements, conditions or guidelines contained in any order, directive, opinion, ruling or regulation of a federal or state agency or contained in federal or state law;
(5) (a) to reflect such changes as are reasonably necessary (i) for either the General Partner or any other wholly owned subsidiary of a the Special Limited Partner, as the case may be, to maintain its status as a “qualified REIT subsidiary” (within the meaning of Code Section 856(i)(2)) or (ii) for any Special Limited the Previous General Partner to maintain its status as a REIT or to satisfy the REIT RequirementsRequirement; (b) to reflect the Transfer of all or any part of a Partnership Interest among the Previous General Partner, the General Partner, the Special Limited Partners Partner or any other “qualified REIT subsidiary” (within the meaning of Code Section 856(i)(2)) with respect to any Special Limited the Previous General Partner;
(6) to modify the manner in which Capital Accounts are computed (but only to the extent set forth in the definition of “Capital Account” or contemplated by the Code or the Regulations); and
(7) the issuance of additional Partnership Interests in accordance with Section 4.2. The General Partner will provide notice to the Limited Partners when any action under this Section 7.3C 7.3.C is taken.
D. Notwithstanding Sections 7.3B 7.3.B and 7.3C 7.3.C hereof, this Agreement shall not be amended, and no action may be taken by the General Partner, without the Consent of each Partner adversely affected, if such amendment or action would (i) convert a Limited Partner Interest in the Partnership into a General Partner Interest (except as a result of the General Partner acquiring such Partnership Interest), (ii) modify the limited liability of a Limited Partner, (iii) alter the rights of any Partner to receive the distributions to which such Partner is entitled, pursuant to Article 5 or Section 13.2A(413.2.A(4) hereof, or alter the allocations specified in Article 6 hereof (except, in any case, as permitted pursuant to Sections 4.2 and 7.3C 7.3.C hereof), (iv) alter or modify the Redemption rights, Cash Amount or REIT Shares Amount as set forth in Sections 8.6 and 11.2 hereof, or amend or modify any related definitions, or (v) amend this Section 7.3D7.3.D; provided, however, that the Consent of each Partner adversely affected shall not be required for any amendment or action that affects all Partners holding the same class or series of Partnership Units on a uniform or pro rata basis. Further, no amendment may alter the restrictions on the General Partner’s authority set forth elsewhere in this Section 7.3 without the Consent specified therein. Any such amendment or action consented to by any Partner shall be effective as to that Partner, notwithstanding the absence of such consent by any other Partner.
Appears in 1 contract
Samples: Limited Partnership Agreement (Apartment Investment & Management Co)
Restrictions on General Partner’s Authority. A. The General Partner may not take any action in contravention of this Agreement, including, without limitation:
(1i) take any action that would make it impossible to carry on the ordinary business of the Partnership, except as otherwise provided in this Agreement;
(2ii) possess Partnership property, or assign any rights in specific Partnership property, for other than a Partnership purpose, purpose except as otherwise provided in this Agreement;
(3iii) admit a Person as a Partner, except as otherwise provided in this Agreement;
(4iv) perform any act that would subject a Limited Partner to liability as a general partner in any jurisdiction or any other liability, liability except as provided herein or under the Act; or
(5v) enter into perform any contract, mortgage, loan or other agreement act that prohibits or restricts, or has the effect of prohibiting or restricting, the ability of (a) the General Partner, the Previous General Partner or would subject the Partnership from satisfying its obligations to regulation as an "investment company" as such term is defined 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 fullthe Investment Company Act of 1940, except, in either case, with the written consent of such Limited Partner affected by the prohibition or restrictionas amended.
B. The General Partner shall not, without the prior Consent of the Partners (in addition to any Consent of the Limited PartnersPartners required by any other provision hereof), undertake, on behalf of the Partnership, any of the following actions or enter into any transaction that which would have the effect of such transactions:
(1i) except as provided in Section 7.3C hereof7.3.D below, amend, modify or terminate this Agreement other than to reflect the admission, substitution, termination or withdrawal of Partners partners pursuant to Article 11 or Article 12 hereof12;
(2ii) make a general assignment for the benefit of creditors or appoint or acquiesce in the appointment of a custodian, receiver or trustee for all or any part of the assets of the Partnership;
(3iii) institute any proceeding for bankruptcy on behalf of the Partnership;
(iv) confess a judgment against the Partnership; or
(4v) subject to the rights of Transfer provided in Sections 11.1C and 11.2 hereofenter into a merger (including a triangular merger), approve consolidation or acquiesce to the Transfer other combination of the Partnership Interest of the General Partner, with or admit into the Partnership any additional or successor General Partnersanother entity.
C. Except in the case of a Liquidating Event pursuant to Section 13.1 (other than Section 13.1.F), the General Partner shall not, without the prior Consent of the Limited Partners, undertake, on behalf of the Partnership, any actions or enter into any transaction which would have the effect of a dissolution of the Partnership, including a sale, exchange, transfer or other disposition of all or substantially all of the Partnership's assets in a single transaction or a series of related transactions.
D. Notwithstanding Sections 7.3.B and 7.3.C, but subject to Section 7.3B hereof7.3.E, the General Partner shall have the power, without the Consent of the Limited Partners, to amend this Agreement as may be required to facilitate or implement any of the following purposes:
(1i) to add to the obligations of the General Partner or surrender any right or power granted to the General Partner or any Affiliate of the General Partner for the benefit of the Limited Partners;
(2ii) to reflect the issuance of additional Partnership Interests pursuant to Section 4.3.B, or the admission, substitution substitution, termination, reduction in Partnership Units or withdrawal of Partners or the termination of the Partnership in accordance with this Agreement, and to amend Exhibits Agreement (which may be effected through the replacement of Exhibit A and C in connection with such admission, substitution or withdrawalan amended Exhibit A);
(3iii) to set forth or amend the designations, rights, powers, duties, and preferences of the holders of any additional Partnership Interests issued pursuant to Article 4;
(iv) to reflect a change that is of an inconsequential nature and does not adversely affect the Limited Partners in any material respect, or to cure any ambiguityambiguity in, correct or supplement any provision in this Agreement not inconsistent with law or with other provisionsprovision, or make other changes with respect to matters arising under under, this Agreement that will not be inconsistent with law or with the provisions of this Agreement;
(4v) to satisfy any requirements, conditions conditions, or guidelines contained in any order, directive, opinion, ruling or regulation of a federal or Federal, state of local agency or contained in federal Federal, state or state local law;.
(5) (avi) to reflect such changes as are reasonably necessary (i) for AMB, in its capacity as the sole stockholder of the General Partner or any other wholly owned subsidiary of a Special Limited Partner, and as the case may besole general partner of the Operating Partnership, to maintain its status as a “qualified REIT subsidiary” REIT, including changes which may be necessitated due to a change in applicable law (within the meaning of Code Section 856(i)(2)or an authoritative interpretation thereof) or a ruling of the IRS; and
(ii) for any Special Limited Partner to maintain its status as a REIT or to satisfy the REIT Requirements; (bvii) to reflect modify, as set forth in the Transfer definition of all or any part of a Partnership Interest among the General Partner, the Special Limited Partners or any “qualified REIT subsidiary” (within the meaning of Code Section 856(i)(2)) with respect to any Special Limited Partner;
(6) to modify "Capital Account," the manner in which Capital Accounts are computed (but only to the extent set forth in the definition of “Capital Account” or contemplated by the Code or the Regulations); and
(7) the issuance of additional Partnership Interests in accordance with Section 4.2computed. The General Partner will provide notice to the Limited Partners when any action under this Section 7.3C 7.3.D is taken.
D. E. Notwithstanding Sections 7.3B 7.3.B, 7.3.C and 7.3C hereof7.3.D, this Agreement shall not be amended, and no action may be taken by the General Partner, including in either case through merger or sale of assets of the Partnership or otherwise, without the Consent of each Common Limited Partner or Preferred Limited Partner adversely affected, affected if such amendment or action would (i) convert a Limited Partner Interest Partner's interest in the Partnership into a General Partner Interest general partner's interest (except as a the result of the General Partner acquiring such Partnership Interestinterest), (ii) modify the limited liability of a Limited Partner, (iii) alter the rights of any the Partner to receive the distributions to which such Partner is entitled, pursuant to Article 5 or Section 13.2A(413.2.A(4) hereof, or alter Article 16 or the allocations specified in Article 6 hereof (except, in any case, except as permitted pursuant to Sections 4.2 Section 4.3 and 7.3C hereofSection 7.3.D), (iv) alter or modify the Redemption rights, Cash Amount or REIT Shares Amount exchange rights as set forth in Sections 8.6 16.5 and 11.2 16.8 hereof, or amend or modify any related definitionsrespectively, or (v) amend this Section 7.3D; provided, however, that the Consent of each Partner adversely affected shall not be required for any amendment or action that affects all Partners holding the same class or series of Partnership Units on a uniform or pro rata basis. 7.3.E. Further, no amendment may alter the restrictions on the General Partner’s 's authority set forth elsewhere in this Section 7.3 without the Consent specified therein. Any in such amendment or action consented to by any section.
F. The General Partner shall be effective not undertake to dispose of any Partnership Property specified in the agreements listed in Exhibit G in a taxable sale or taxable exchange prior to the dates specified in such agreements without the prior consent of each Limited Partner which contributed all or any portion of an interest in such Property to the Partnership, as to that Partner, notwithstanding the absence of set forth in such consent by any other Partneragreements.
Appears in 1 contract
Samples: Agreement of Limited Partnership (Amb Property Corp)
Restrictions on General Partner’s Authority. A. The General Partner may not take any action in contravention of this Agreement, including, without limitation:
(1i) take any action that would make it impossible to carry on the ordinary business of the Partnership, except as otherwise provided in this Agreement;
(2ii) possess Partnership property, or assign any rights in specific Partnership property, for other than a Partnership purpose, purpose except as otherwise provided in this Agreement;
(3iii) admit a Person as a Partner, except as otherwise provided in this Agreement;
(4iv) perform any act that would subject a Limited Partner to liability as a general partner in any jurisdiction or any other liability, liability except as provided herein or under the Act; or
(5v) enter into perform any contract, mortgage, loan or other agreement act that prohibits or restricts, or has the effect of prohibiting or restricting, the ability of (a) the General Partner, the Previous General Partner or would subject the Partnership from satisfying its obligations to regulation as an "investment company" as such term is defined 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 fullthe Investment Company Act of 1940, except, in either case, with the written consent of such Limited Partner affected by the prohibition or restrictionas amended.
B. The General Partner shall not, without the prior Consent of the Partners (in addition to any Consent of the Limited PartnersPartners required by any other provision hereof), undertake, on behalf of the Partnership, any of the following actions or enter into any transaction that which would have the effect of such transactions:
(1i) except as provided in Section 7.3C hereof7.3.D below, amend, modify or terminate this Agreement other than to reflect the admission, substitution, termination or withdrawal of Partners partners pursuant to Article 11 or Article 12 hereof12;
(2ii) make a general assignment for the benefit of creditors or appoint or acquiesce in the appointment of a custodian, receiver or trustee for all or any part of the assets of the Partnership;
(3iii) institute any proceeding for bankruptcy on behalf of the Partnership;
(iv) confess a judgment against the Partnership; or
(4v) subject to the rights of Transfer provided in Sections 11.1C and 11.2 hereofenter into a merger (including a triangular merger), approve consolidation or acquiesce to the Transfer other combination of the Partnership Interest of the General Partner, with or admit into the Partnership any additional or successor General Partnersanother entity.
C. Except in the case of a Liquidating Event pursuant to Section 13.1 (other than Section 13.1.F), the General Partner shall not, without the prior Consent of the Limited Partners, undertake, on behalf of the Partnership, any actions or enter into any transaction which would have the effect of a dissolution of the Partnership, including a sale, exchange, transfer or other disposition of all or substantially all of the Partnership's assets in a single transaction or a series of related transactions.
D. Notwithstanding Sections 7.3.B and 7.3.C, but subject to Section 7.3B hereof7.3.E, the General Partner shall have the power, without the Consent of the Limited Partners, to amend this Agreement as may be required to facilitate or implement any of the following purposes:
(1i) to add to the obligations of the General Partner or surrender any right or power granted to the General Partner or any Affiliate of the General Partner for the benefit of the Limited Partners;
(2ii) to reflect the issuance of additional Partnership Interests pursuant to Section 4.3.B, or the admission, substitution substitution, termination, reduction in Partnership Units or withdrawal of Partners or the termination of the Partnership in accordance with this Agreement, and to amend Exhibits Agreement (which may be effected through the replacement of Exhibit A and C in connection with such admission, substitution or withdrawalan amended Exhibit A);
(3iii) to set forth or amend the designations, rights, powers, duties, and preferences of the holders of any additional Partnership Interests issued pursuant to Article 4;
(iv) to reflect a change that is of an inconsequential nature and does not adversely affect the Limited Partners in any material respect, or to cure any ambiguityambiguity in, correct or supplement any provision in this Agreement not inconsistent with law or with other provisionsprovision, or make other changes with respect to matters arising under under, this Agreement that will not be inconsistent with law or with the provisions of this Agreement;
(4v) to satisfy any requirements, conditions conditions, or guidelines contained in any order, directive, opinion, ruling or regulation of a federal or Federal, state of local agency or contained in federal Federal, state or state local law;.
(5) (avi) to reflect such changes as are reasonably necessary (i) for AMB, in its capacity as the sole stockholder of the General Partner or any other wholly owned subsidiary of a Special Limited Partner, and as the case may besole general partner of the Operating Partnership, to maintain its status as a “qualified REIT subsidiary” REIT, including changes which may be necessitated due to a change in applicable law (within the meaning of Code Section 856(i)(2)or an authoritative interpretation thereof) or a ruling of the IRS; and
(ii) for any Special Limited Partner to maintain its status as a REIT or to satisfy the REIT Requirements; (bvii) to reflect modify, as set forth in the Transfer definition of all or any part of a Partnership Interest among the General Partner, the Special Limited Partners or any “qualified REIT subsidiary” (within the meaning of Code Section 856(i)(2)) with respect to any Special Limited Partner;
(6) to modify "Capital Account," the manner in which Capital Accounts are computed (but only to the extent set forth in the definition of “Capital Account” or contemplated by the Code or the Regulations); and
(7) the issuance of additional Partnership Interests in accordance with Section 4.2computed. The General Partner will provide notice to the Limited Partners when any action under this Section 7.3C 7.3.D is taken.
D. E. Notwithstanding Sections 7.3B 7.3.B, 7.3.C and 7.3C hereof7.3.D, this Agreement shall not be amended, and no action may be taken by the General Partner, including in either case through merger or sale of assets of the Partnership or otherwise, without the Consent of each Common Limited Partner or Preferred Limited Partner adversely affected, affected if such amendment or action would (i) convert a Limited Partner Interest Partner's interest in the Partnership into a General Partner Interest general partner's interest (except as a the result of the General Partner acquiring such Partnership Interestinterest), (ii) modify the limited liability of a Limited Partner, (iii) alter the rights of any the Partner to receive the distributions to which such Partner is entitled, pursuant to Article 5 or Section 13.2A(413.2.A(4) hereofor Articles 17, 18, 19 or alter 20 or the allocations specified in Article 6 hereof (except, in any case, except as permitted pursuant to Sections 4.2 4.3 and 7.3C hereof7.3.D), (iv) alter the Series D Redemption or modify the Redemption rights, Cash Amount or REIT Shares Amount exchange rights as set forth in Sections 8.6 17.5 and 11.2 hereof17.8, respectively, the Series E Redemption or exchange rights as set forth in Sections 18.5 and 18.8, respectively, the Series F Redemption or exchange rights as set forth in Sections 19.5 and 19.8, respectively, the Series G Redemption or exchange rights as set forth in Sections 20.5 and 20.8, respectively, the Series H Redemption or exchange rights as set forth in Sections 21.5 and 21.8, respectively, or amend the Series I Redemption or modify any related definitionsexchange rights as set forth in Sections 22.5 and 22.8, respectively, or (v) amend this Section 7.3D; provided, however, that the Consent of each Partner adversely affected shall not be required for any amendment or action that affects all Partners holding the same class or series of Partnership Units on a uniform or pro rata basis. 7.3.E. Further, no amendment may alter the restrictions on the General Partner’s 's authority set forth elsewhere in this Section 7.3 without the Consent specified therein. Any in such amendment or action consented to by any section.
F. The General Partner shall be effective not undertake to dispose of any Partnership Property specified in the agreements listed in Exhibit G in a taxable sale or taxable exchange prior to the dates specified in such agreements without the prior consent of each Limited Partner which contributed all or any portion of an interest in such Property to the Partnership, as to that Partner, notwithstanding the absence of set forth in such consent by any other Partneragreements.
Appears in 1 contract
Restrictions on General Partner’s Authority. A. The General Partner may not take any action in contravention of an express prohibition or limitation of this Agreement, including, without limitation:
(1) take 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) possess possessing Partnership property, or assign assigning any rights in specific Partnership property, for other than a Partnership purpose, purpose except as otherwise provided in this Agreement;
(3) admit admitting a Person as a Partner, except as otherwise provided in this Agreement;
(4) perform performing any act that would subject a Limited Partner to liability as a general partner in any jurisdiction or any other liability, liability except as provided herein or under the Act; or
(5) enter entering into any contract, mortgage, loan or other agreement that expressly prohibits or restricts, or has restricts the effect of prohibiting or restricting, the ability of (a) the General Partner, the Previous General Partner Company or the Partnership from satisfying its performing their respective obligations under Section 8.6 hereof this Agreement in full connection with a Redemption or (b) prohibits or restricts the ability of a Limited Partner from exercising to exercise its rights under Section 8.6 hereof to effect a Redemption in full, except, in either case, except with the written consent of such Limited Partner affected by the prohibition or restrictionPartner.
B. The General Partner shall not, without Without the prior Consent of the Limited Partners, undertakeneither the General Partner nor the Partnership may engage in, on behalf of the Partnership, any of the following actions cause or enter into any transaction that would have the effect of such transactionspermit:
(1) at any time:
(i) any action that would make it impossible to carry on the ordinary business of the Partnership, except as otherwise provided in this Agreement;
(ii) any action that would subject a Limited Partner to liability not contemplated in this Agreement or under the Act;
(iii) entering into any contract, mortgage loan or other agreement that expressly prohibits or restricts the Company or the Partnership from performing their respective specific obligations in connection with a Redemption as provided in Section 7.3C hereof, amend, modify 8.6 or terminate this Agreement other than restricts the ability of a Limited Partner to reflect exercise its rights of Redemption in full without the admission, substitution, termination or withdrawal written consent of Partners pursuant to Article 11 or Article 12 hereofsuch Limited Partner;
(2iv) make a except as explicitly permitted under Section 7.3.C, any amendment, modification or termination of this Agreement;
(v) any other direct or indirect transfer of all or any portion of the General Partner’s Partnership Interest, other than pursuant to and in accordance with Section 11.2;
(vi) any voluntary withdrawal of the General Partner as general partner except pursuant to and in accordance with Section 11.2;
(vii) any general assignment for the benefit of creditors creditors, or appoint appointment or acquiesce acquiescence in the appointment of a custodian, receiver or trustee for all or any part of the assets of the General Partner or the Partnership;
(3viii) institute the commencement of any proceeding for bankruptcy by or on behalf of the General Partner or the Partnership; or
(4ix) subject the confession of a judgment against the General Partner or the Partnership;
(x) the adoption of any plan of liquidation or dissolution of the General Partner or the Partnership;
(xi) any change in any election relating to the rights of Transfer provided in Sections 11.1C and 11.2 hereof, approve or acquiesce to the Transfer tax status of the Partnership or the Company, including, without limitation, the status of the General Partner as a REIT;
(xii) any admission into the Partnership of any Additional or Substitute General Partners, except pursuant to and in accordance with Article 11 or Article 12;
(2) at any time that the General Partner’s Percentage Interest of the Common Units is less than [—] percent ([—]%):
(i) the sale, lease, exchange or other transfer of all or substantially all of the assets of the General Partner or the Partnership, whether in a single transaction or a series of related transactions;
(ii) any waiver of any restrictions in the Charter relating to the ownership and transfer of shares of beneficial interest of the General Partner, including, without limitation, any restriction preventing a person or admit into entity from owning, or being deemed to own, beneficially or by virtue of the applicable constructive ownership provisions of the Code, more than a percentage specified in the Charter, in value or in number of shares, whichever is more restrictive, of the outstanding shares of any class or series of shares of beneficial interest of the General Partner, including, without limitation, the REIT Common Shares; or
(iii) any direct or indirect transfer of all or any portion of the General Partner’s Partnership Interest in connection with, or any other occurrence of, (A) a merger, consolidation, conversion or other combination or extraordinary transaction involving the Partnership any additional or successor General Partners(B) a Change of Control of the Partnership.
C. Notwithstanding Section 7.3B hereof7.3.B, the General Partner shall have the power, without the Consent of the Limited Partners, power to amend this Agreement as may be required to facilitate or implement any of the following purposes:
(1) to add reflect the issuance of additional Partnership Interests pursuant to Section 4.3.C or the obligations admission, substitution, termination or withdrawal of the General Partner or surrender any right or power granted to the General Partner or any Affiliate of the General Partner for the benefit of the Limited PartnersPartners in accordance with Articles 11 and 12;
(2) to reflect the admission, substitution or withdrawal of Partners or the termination of the Partnership in accordance with this Agreement, and to amend Exhibits A and C in connection with such admission, substitution or withdrawal;
(3) to reflect a change that is of an inconsequential nature and does not adversely affect the Limited Partners in any material respect, or to cure any ambiguity, correct or supplement any provision in this Agreement not inconsistent with law or with other provisions, or make other changes with respect to matters arising under this Agreement that will not be inconsistent with law or with the provisions of this Agreement;
(43) to satisfy any requirements, conditions or guidelines contained in any order, directive, opinion, ruling or regulation of a federal or state agency or contained in federal or state law;
(5) (a4) to reflect such changes as are reasonably necessary (i) for the General Partner or any other wholly owned subsidiary of a Special Limited Partner, as the case may be, to maintain its status as a “qualified REIT subsidiary” (within the meaning of Code Section 856(i)(2)) or (ii) for any Special Limited Partner to maintain its status as a REIT or to satisfy the REIT Requirements, including changes which may be necessitated due to a change in applicable law (or an authoritative interpretation thereof) or a ruling of the IRS; and
(b5) to reflect the Transfer of all or any part of a Partnership Interest among the General Partnermodify, the Special Limited Partners or any “qualified REIT subsidiary” (within the meaning of Code Section 856(i)(2)) with respect to any Special Limited Partner;
(6) to modify the manner in which Capital Accounts are computed (but only to the extent as set forth in the definition of “Capital Account,” or contemplated by the Code or the Regulations); and
(7) the issuance of additional Partnership Interests manner in accordance with Section 4.2which Capital Accounts are computed. The General Partner will provide notice to the Limited Partners when prior to taking any action under this Section 7.3C is taken.7.3.C.
D. Notwithstanding Sections 7.3B Section 7.3.B and 7.3C hereof7.3.C, this Agreement shall not be amendedamended with respect to any Partner adversely affected, and no action may be taken by the General Partner, without the Consent of each such Partner adversely affected, affected if such amendment or action would (i) convert a Limited Partner Interest Partner’s interest in the Partnership into a General Partner Interest general partner’s interest (except as a the result of the General Partner acquiring such Partnership Interestinterest), (ii) modify the limited liability of a Limited Partner, (iii) alter the rights of any the Partner to receive the distributions to which such Partner is entitled, pursuant to Article 5 or Section 13.2A(413.2.A(3) hereof, or alter the allocations specified in Article 6 hereof (except, in any case, except as permitted pursuant to Sections 4.2 Section 4.3 and 7.3C hereofSection 7.3.C(3)), (iv) materially alter or modify the rights of Redemption rights, Cash Amount or the REIT Shares Amount as set forth in Sections 8.6 Section 8.6, and 11.2 hereof, or amend or modify any related definitions, definitions thereof or (v) amend this Section 7.3D7.3.D; provided, however, that the Consent if all holders of each Partner adversely affected shall not be required for any amendment or action that affects all Partners holding Partnership Units of the same class or series of Partnership Units are adversely affected on a uniform or pro rata basis, this Agreement may be amended with respect to such Partners by the consent of Partners holding in the aggregate Percentage Interests of such class or series that are greater than fifty percent (50%) of the aggregate Percentage Interests of such class or series held by all Partners. Further, no amendment may alter the restrictions on the General Partner’s authority set forth elsewhere in this Section 7.3 without the Consent specified thereinin such section. Any such This Section 7.3D does not require unanimous consent of all Partners adversely affected unless the amendment or action consented is to by any Partner shall be effective as to that Partner, notwithstanding the absence of such consent by any other Partneragainst all Partners adversely affected.
Appears in 1 contract
Samples: Limited Partnership Agreement (Seritage Growth Properties)
Restrictions on General Partner’s Authority. A. (a) The General Partner may not take any action in contravention of an express prohibition or limitation of this Agreement, including, Agreement without limitation:
(1) take any action that would make it impossible to carry on the ordinary business written Consent of a Majority in Interest of the Partnership, except Limited Partners or such other percentage of the Limited Partners as otherwise may be specifically provided in for under a provision of this Agreement;
(2) possess Partnership property, or assign any rights in specific Partnership property, for other than a Partnership purpose, except as otherwise provided in this Agreement;
(3) admit a Person as a Partner, except as otherwise provided in this Agreement;
(4) Agreement and may not perform any act that would subject a Limited Partner to liability as a general partner in any jurisdiction or any other liability, liability except as provided herein or under the Act; or.
(5) enter into any contract, mortgage, loan or other agreement that prohibits or restricts, or has the effect of prohibiting or restricting, the ability of (a) the General Partner, the Previous 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.
B. The General Partner shall not, without the prior Consent of the Limited Partners, undertake, on behalf of the Partnership, any of the following actions or enter into any transaction that would have the effect of such transactions:
(1i) except as provided in Section 7.3C Sections 4.2(a), 5.5, 6.2(b), 6.3(b)(vii) and (c) hereof, amend, modify or terminate this Agreement other than to reflect the admission, substitution, termination or withdrawal of Partners pursuant to Article 11 XI or Article 12 XII hereof;
(2ii) make a general assignment for the benefit of creditors or appoint or acquiesce in the appointment of a custodian, receiver or trustee for all or any part of the assets of the Partnership;; or
(3iii) institute any proceeding for bankruptcy on behalf of the Partnership; or
. Except as set forth below in Sections (4d) subject to the rights of Transfer and (e) or as otherwise expressly provided in Sections 11.1C and 11.2 hereofthis Agreement, approve or acquiesce to the Transfer of the Partnership Interest of this Agreement may be amended if it is approved by the General Partner, or admit into Partner and it receives the Partnership any additional or successor General Consent of Limited Partners.
C. (c) Notwithstanding Section 7.3B (b) hereof, the General Partner shall have the power, without the Consent of the Limited Partners, to amend this Agreement as may be required to facilitate or implement any of the following purposes:
(1i) to add to the obligations of the General Partner or surrender any right or power granted to the General Partner or any Affiliate of the General Partner for the benefit of the Limited Partners;
(2ii) to reflect the admission, substitution or withdrawal of Partners or the termination of the Partnership in accordance with this Agreement, and to amend Exhibits Exhibit EXHIBIT A and C in connection with such admission, substitution or withdrawal;
(3iii) to reflect a change that is of an inconsequential nature and does not adversely affect the Limited Partners in any material respect, or to cure any ambiguity, correct or supplement any provision in this Agreement not inconsistent with law or with other provisions, or make other changes with respect to matters arising under this Agreement that will not be inconsistent with law or with the provisions of this AgreementAgreement (including, without limitation, pursuant to Section 6.3(b)(vii));
(4iv) to satisfy any requirements, conditions or guidelines contained in any order, directive, opinion, ruling or regulation of a federal or state agency or contained in federal or state law;
(5) (a) to reflect such changes as are reasonably necessary (i) for the General Partner or any other wholly owned subsidiary of a Special Limited Partner, as the case may be, to maintain its status as a “qualified REIT subsidiary” (within the meaning of Code Section 856(i)(2)) or (ii) for any Special Limited Partner to maintain its status as a REIT or to satisfy the REIT Requirements; (bv) to reflect the Transfer of all or any part of a Partnership Interest among between the General Partner, the Special Limited Partners Company and any entity that is wholly owned, directly or any “qualified REIT subsidiary” (within indirectly, by the meaning of Code Section 856(i)(2)) with respect to any Special Limited PartnerCompany;
(6vi) to modify the manner in which Capital Accounts are computed (but only to the extent set forth in the definition of “Capital Account” or contemplated by the Code or the Regulations);
(vii) to reflect any modification to this Agreement as is necessary or desirable (as determined by the General Partner in its sole and absolute discretion), including, without limitation, the definition of “Adjustment Factor,” to reflect the direct ownership of assets by the Company or the General Partner;
(viii) to effectuate a split, reverse split, subdivision or combination or Partnership Common Units that applies equally to all Partnership Common Units; and
(7ix) the issuance of to issue additional Partnership Interests in accordance with Section 4.24.2 or to make the adjustments authorized pursuant to Section 4.13 hereof relating to the contribution of Excess Distributions to the Partnership by the General Partner, the Company or the direct or indirect wholly owned Subsidiaries of the Company. The General Partner will provide notice to the Limited Partners when any action under this Section 7.3C (c) is taken.
D. (d) Except as set forth in Section (c) hereof, without the Consent of a Majority in Interest of the Outside Limited Partners, this Agreement shall not be amended in a manner that disproportionately effects such Limited Partners, if such amendment would (i) alter the rights of any Partner to receive the distributions to which such Partner is entitled, pursuant to Article V or Section 13.2 hereof, or alter the allocations specified in Article VI hereof (except, in any case, as permitted pursuant to Sections 4.2, 5.5, 6.2(b) and 6.3(b)(vii)), (ii) alter or modify the Redemption rights, Cash Amount or Company Shares Amount as set forth in Sections 8.6 and 11.2 hereof, or amend or modify any related definitions, or (iii) amend this Section (d).
(e) Notwithstanding Sections 7.3B (c) and 7.3C (d) hereof, this Agreement shall not be amended, and no action may be taken by the General Partner, without the Consent of each Partner adversely affectedaffected thereby, if such amendment or action would (i) convert a Limited Partner Interest in the Partnership into a General Partner Interest (except as a result of the General Partner acquiring such Partnership Interest), (ii) modify the limited liability of a Limited Partner, or (iii) alter the rights of any Partner to receive the distributions to which such Partner is entitled, pursuant to Article 5 or Section 13.2A(4) hereof, or alter the allocations specified in Article 6 hereof (except, in any case, as permitted pursuant to Sections 4.2 and 7.3C hereof), (iv) alter or modify the Redemption rights, Cash Amount or REIT Shares Amount as set forth in Sections 8.6 and 11.2 hereof, or amend or modify any related definitions, or (v) amend this Section 7.3D; provided, however, that the Consent of each Partner adversely affected shall not be required for any amendment or action that affects all Partners holding the same class or series of Partnership Units on a uniform or pro rata basis. Further, no amendment may alter the restrictions on the General Partner’s authority set forth elsewhere in this Section 7.3 without the Consent specified therein(e). Any such amendment or action consented to by any Partner shall be effective as to that Partner, notwithstanding the absence of such consent by any other Partner.
Appears in 1 contract
Samples: Limited Partnership Agreement (NorthStar Asset Management Group Inc.)
Restrictions on General Partner’s Authority. A. The General Partner may not take any action in contravention of this Agreement, including, without limitation:
(1i) take any action that would make it impossible to carry on the ordinary business of the Partnership, except as otherwise provided in this Agreement;
(2ii) possess Partnership property, or assign any rights in specific Partnership property, for other than a Partnership purpose, purpose except as otherwise provided in this Agreement;
(3iii) admit a Person as a Partner, except as otherwise provided in this AgreementAgreement (including with respect to the PLPs, who shall become Partners upon their receipt of Performance Units);
(4iv) perform any act that would subject a Limited Partner to liability as a general partner in any jurisdiction or any other liability, liability except as provided herein or under the Act; or
(5v) enter into any contract, mortgage, loan or other agreement that prohibits or restricts, or has the effect of prohibiting or restricting, the ability of (a) the General Partner, the Previous General Partner or the Partnership from satisfying its obligations under Section 8.6 hereof in full or (b) a Limited Partner from exercising to exercise its rights under Section 8.6 hereof to effect a Redemption in full, except, in either case, except with the written consent of such Limited Partner affected by the prohibition or restrictionPartner.
B. The General Partner shall not, without the prior Consent of the Partners (in addition to any Consent of the Limited PartnersPartners required by any other provision hereof), undertake, on behalf of the Partnership, any of the following actions or enter into any transaction that which would have the effect of such transactions:
(1i) except as provided in Section 7.3C hereof7.3.D below, amend, modify or terminate this Agreement other than to reflect the admission, substitution, termination or withdrawal of Partners partners pursuant to Article 11 or Article 12 hereof12;
(2ii) make a general assignment for the benefit of creditors or appoint or acquiesce in the appointment of a custodian, receiver or trustee for all or any part of the assets of the Partnership;
(3iii) institute any proceeding for bankruptcy on behalf of the Partnership;
(iv) confess a judgment against the Partnership; or
(4v) subject to the rights of Transfer provided in Sections 11.1C and 11.2 hereofenter into a merger (including a triangular merger), approve consolidation or acquiesce to the Transfer other combination of the Partnership Interest of the General Partner, with or admit into the Partnership any additional or successor General Partnersanother entity.
C. Except in the case of a Liquidating Event pursuant to Section 13.1 (other than Section 13.1.F), the General Partner shall not, without the prior Consent of the Limited Partners, undertake, on behalf of the Partnership, any actions or enter into any transaction which would have the effect of a dissolution of the Partnership, including a sale, exchange, transfer or other disposition of all or substantially all of the Partnership's assets in a single transaction or a series of related transactions.
D. Notwithstanding Sections 7.3.B and 7.3.C, but subject to Section 7.3B hereof7.3.E, the General Partner shall have the power, without the Consent of the Limited Partners, to amend this Agreement as may be required to facilitate or implement any of the following purposes:
(1i) to add to the obligations of the General Partner or surrender any right or power granted to the General Partner or any Affiliate of the General Partner for the benefit of the Limited Partners;
(2ii) to reflect the issuance of additional Partnership Interests pursuant to Sections 4.3.C, 4.3.F and 4.4, or the admission, substitution substitution, termination, reduction in Partnership Units or withdrawal of Partners or the termination of the Partnership in accordance with this Agreement, and to amend Exhibits Agreement (which may be effected through the replacement of Exhibit A and C in connection with such admission, substitution or withdrawalan amended Exhibit A);
(3iii) to set forth or amend the designations, rights, powers, duties, and preferences of the holders of any additional Partnership Interests issued pursuant to Article 4;
(iv) to reflect a change that is of an inconsequential nature and does not adversely affect the Limited Partners in any material respect, or to cure any ambiguityambiguity in, correct or supplement any provision in this Agreement not inconsistent with law or with other provisionsprovision, or make other changes with respect to matters arising under under, this Agreement that will not be inconsistent with law or with the provisions of this Agreement;
(4v) to satisfy any requirements, conditions conditions, or guidelines contained in any order, directive, opinion, ruling or regulation of a federal or Federal, state of local agency or contained in federal Federal, state or state local law;.
(5) (avi) to reflect such changes as are reasonably necessary (i) for the General Partner or any other wholly owned subsidiary of a Special Limited Partner, as the case may be, to maintain its status as a “qualified REIT subsidiary” (within the meaning of Code Section 856(i)(2)) or (ii) for any Special Limited Partner to maintain its status as a REIT REIT, including changes which may be necessitated due to a change in applicable law (or to satisfy an authoritative interpretation thereof) or a ruling of the REIT RequirementsIRS; and
(bvii) to reflect modify, as set forth in the Transfer definition of all or any part of a Partnership Interest among the General Partner, the Special Limited Partners or any “qualified REIT subsidiary” (within the meaning of Code Section 856(i)(2)) with respect to any Special Limited Partner;
(6) to modify "Capital Account," the manner in which Capital Accounts are computed (but only to the extent set forth in the definition of “Capital Account” or contemplated by the Code or the Regulations); and
(7) the issuance of additional Partnership Interests in accordance with Section 4.2computed. The General Partner will provide notice to the Limited Partners when any action under this Section 7.3C 7.3.D is taken.
D. E. Notwithstanding Sections 7.3B 7.3.B, 7.3.C and 7.3C hereof7.3.D, this Agreement shall not be amended, and no action may be taken by the General Partner, including in either case through merger or sale of assets of the Partnership or otherwise, without the Consent of each Common Limited Partner or Preferred Limited Partner adversely affected, affected if such amendment or action would (i) convert a Limited Partner Interest Partner's interest in the Partnership into a General Partner Interest general partner's interest (except as a the result of the General Partner acquiring such Partnership Interestinterest), (ii) modify the limited liability of a Limited Partner, (iii) alter the rights of any the Partner to receive the distributions to which such Partner is entitled, pursuant to Article 5 5, Section 13.2.A(4), Article 16, Article 17 or Section 13.2A(4) hereof, Article 18 or alter the allocations specified in Article 6 hereof (except, in any case, except as permitted pursuant to Sections 4.2 Section 4.3 and 7.3C hereofSection 7.3.D), (iv) alter or modify the rights to a Redemption rights, Cash Amount or the REIT Shares Amount as set forth in Sections 8.6 Section 8.6, and 11.2 related definitions hereof, (v) alter the redemption or amend or modify any related definitionsexchange rights as set forth in Sections 17.5, 17.8, 18.5 and 18.8 hereof, respectively, or (vvi) amend this Section 7.3D; provided, however, that the Consent of each Partner adversely affected shall not be required for any amendment or action that affects all Partners holding the same class or series of Partnership Units on a uniform or pro rata basis. 7.3.E. Further, no amendment may alter the restrictions on the General Partner’s 's authority set forth elsewhere in this Section 7.3 without the Consent specified thereinin such section. Any such amendment In addition, (a) Section 11.2 of this Agreement shall not be amended, and no action in contravention of Section 11.2 shall be taken, including in either case through merger or sale of assets of the Partnership or otherwise, without the Consent of the Limited Partners and (b) this Agreement shall not be amended, and no action consented shall be taken, including in either case through merger or sale of assets of the Partnership or otherwise, which would adversely affect the rights of the Persons set forth in Exhibit G to by any receive Performance Units as described herein.
F. Other than incident to a transaction pursuant to Sections 11.2.B or 11.2.C, the General Partner shall be effective not undertake to dispose of any Partnership Property specified in the agreements listed in Exhibit H in a taxable sale or taxable exchange prior to the dates specified in such agreements without the prior consent of each Limited Partner which contributed all or any portion of an interest in such Property to the Partnership, as to that Partner, notwithstanding the absence of set forth in such consent by any other Partneragreements.
Appears in 1 contract
Samples: Agreement of Limited Partnership (Amb Property Corp)
Restrictions on General Partner’s Authority. A. The General Partner may not take any action in contravention of an express prohibition or limitation of this Agreement, including, without limitation:
(1) take any action that would make it impossible to carry on the ordinary business of the Partnership, except as otherwise provided in this Agreement;
(2) possess Partnership property, or assign any rights in specific Partnership property, for other than a Partnership purpose, purpose except as otherwise provided in this Agreement;
(3) admit a Person as a Partner, except as otherwise provided in this Agreement;
(4) perform any act that would subject a Limited Partner to liability as a general partner General Partner in any jurisdiction or any other liability, liability except as provided herein or under the Act; or
(54) enter into any contract, mortgage, loan or other agreement that expressly prohibits or restricts, or has the effect of prohibiting or restricting, the ability of (a) the General Partner, the Previous 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 an Exchange in full, except, in either case, with the written consent of such Limited Partner affected by the prohibition or restrictionprohibition.
B. The General Partner shall not, without the prior Consent of the Limited Partners, Partners undertake or have the authority to do or undertake, on behalf of the Partnership, any of the following actions or enter into any transaction that which would have the effect of such transactions:
(1) except as provided in Section 7.3C hereof7.3.C, amend, modify or terminate this Agreement other than to reflect the admission, substitution, termination or withdrawal of Partners pursuant to Article 4, Article 11 or Article 12 hereof;
(2) make a general assignment for the benefit of creditors or appoint or acquiesce in the appointment of a custodian, receiver or trustee for all or any part of the assets of the Partnership;
(3) institute any proceeding for bankruptcy on behalf of the Partnership; or;
(4) subject to confess a judgment against the rights of Transfer provided in Sections 11.1C and 11.2 hereof, Partnership;
(5) approve or acquiesce to the Transfer of the Partnership Interest of the General Partner, or Partner to any Person other than the Partnership;
(6) admit into the Partnership any additional Additional or successor Substitute General Partner;
(7) admit into the Partnership any Additional Limited Partners.;
C. Notwithstanding Section 7.3B hereof7.3.B, the General Partner shall have the power, without the Consent of the Limited Partners, exclusive right and power to amend this Agreement as may be required to facilitate or implement any of the following purposes:
(1) to add to the obligations of the General Partner or surrender any right or power granted to the General Partner or any Affiliate of the General Partner for the benefit of the Limited Partners;
(2) to reflect the admission, substitution substitution, termination, or withdrawal of Partners or the termination of the Partnership in accordance with this Agreement, Agreement and to amend Exhibits Exhibit A and C in connection with such admission, substitution or withdrawal;
(3) to reflect a change that is of an inconsequential nature and does not adversely affect the Limited Partners in any material respect, or to cure any ambiguity, correct or supplement any provision in this Agreement not inconsistent with law or with other provisions, or make other changes with respect to matters arising under this Agreement that will not be inconsistent with law or with the provisions of this Agreement;
(4) to satisfy any requirements, conditions conditions, or guidelines contained in any order, directive, opinion, ruling or regulation of a federal or state agency or contained in federal or state law;
(5) (a) to reflect such changes as are reasonably necessary (i) for the General Partner or any other wholly owned subsidiary of a Special Limited Partner, as the case may be, to maintain its status as a “qualified REIT subsidiary” (within the meaning of Code Section 856(i)(2)) or (ii) for any Special Limited Partner 's Parent to maintain its status as a REIT or to satisfy the REIT Requirements; (b) to reflect the Transfer of all or any part of a Partnership Interest among the General Partner, the Special Limited Partners or any “qualified REIT subsidiary” (within the meaning of Code Section 856(i)(2)) with respect to any Special Limited Partner;and
(6) to modify modify, as set forth in the definition of "Capital Account," the manner in which Capital Accounts are computed (but only to the extent set forth in the definition of “Capital Account” or contemplated by the Code or the Regulations); and
(7) the issuance of additional Partnership Interests in accordance with Section 4.2computed. The General Partner will provide notice to the Limited Partners when any action under this Section 7.3C 7.3.C is taken.
D. Notwithstanding Sections 7.3B and 7.3C hereofSo long as the Limited Partners own at least 15% of the aggregate Partnership Interests of the Partnership, this Agreement shall not be amended, and no action may be taken by the General Partner, without the Consent of each Partner adversely affected, if such amendment or action would (i) convert a Limited Partner Interest in the Partnership into a General Partner Interest (except as a result of the General Partner acquiring such shall not, on behalf of the Partnership, take any of the following actions without the prior Consent of the Limited Partners who contributed the Real Properties (as defined below) that would be affected by any proposed transaction described below:
(1) dissolve the Partnership, other than incident to a sale, disposition, conveyance or other transfer of all or substantially all of the assets of the Partnership, in one or a series of related transactions (an "Asset Sale") after the expiration of the No Transfer Period; or
(2) except in connection with a tax-free transaction or a loan secured by any real property of the Partnership, sell, dispose, convey or otherwise transfer any of the real properties the Partnership Interest), (ii) modify acquired in connection with the limited liability of a Limited Partner, (iii) alter the rights of any Partner to receive the distributions to which such Partner is entitled, transactions consummated pursuant to Article 5 or Section 13.2A(4the Contribution Agreement (collectively, the "Real Properties") hereof, or alter for a period of five (5) years from the allocations specified in Article 6 hereof (except, in any case, as permitted pursuant to Sections 4.2 and 7.3C hereof), (iv) alter or modify the Redemption rights, Cash Amount or REIT Shares Amount as set forth in Sections 8.6 and 11.2 hereof, or amend or modify any related definitions, or (v) amend this Section 7.3D; provided, however, that the Consent of each Partner adversely affected shall not be required for any amendment or action that affects all Partners holding the same class or series of Partnership Units on a uniform or pro rata basis. Further, no amendment may alter the restrictions on the General Partner’s authority set forth elsewhere in this Section 7.3 without the Consent specified therein. Any such amendment or action consented to by any Partner shall be effective as to that Partner, notwithstanding the absence of such consent by any other PartnerEffective Date.
Appears in 1 contract
Restrictions on General Partner’s Authority. A. (a) The General Partner may not take any action in contravention of an express prohibition or limitation of this Agreement, including, Agreement without limitation:
(1) take any action that would make it impossible to carry on the ordinary business written Consent of a Majority in Interest of the Partnership, except Limited Partners or such other percentage of the Limited Partners as otherwise may be specifically provided in for under a provision of this Agreement;
(2) possess Partnership property, or assign any rights in specific Partnership property, for other than a Partnership purpose, except as otherwise provided in this Agreement;
(3) admit a Person as a Partner, except as otherwise provided in this Agreement;
(4) Agreement and may not perform any act that would subject a Limited Partner to liability as a general partner in any jurisdiction or any other liability, liability except as provided herein or under the Act; or.
(5) enter into any contract, mortgage, loan or other agreement that prohibits or restricts, or has the effect of prohibiting or restricting, the ability of (a) the General Partner, the Previous 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.
B. The General Partner shall not, without the prior Consent of the Limited Partners, undertake, on behalf of the Partnership, any of the following actions or enter into any transaction that would have the effect of such transactions:
(1i) except as provided in Section 7.3C Sections 4.2(a), 5.5, 6.2(b), 6.3(b)(vii) and 7.3(c) hereof, amend, modify or terminate this Agreement other than to reflect the admission, substitution, termination or withdrawal of Partners pursuant to Article 11 XI or Article 12 XII hereof;
(2ii) make a general assignment for the benefit of creditors or appoint or acquiesce in the appointment of a custodian, receiver or trustee for all or any part of the assets of the Partnership;; or
(3iii) institute any proceeding for bankruptcy on behalf of the Partnership; or
. Except as set forth below in Sections 7.3(d) and (4e) subject to the rights of Transfer or as otherwise expressly provided in Sections 11.1C and 11.2 hereofthis Agreement, approve or acquiesce to the Transfer of the Partnership Interest of this Agreement may be amended if it is approved by the General Partner, or admit into Partner and it receives the Partnership any additional or successor General Consent of Limited Partners.
C. (c) Notwithstanding Section 7.3B 7.3(b) hereof, the General Partner shall have the power, without the Consent of the Limited Partners, to amend this Agreement as may be required to facilitate or implement any of the following purposes:
(1i) to add to the obligations of the General Partner or surrender any right or power granted to the General Partner or any Affiliate of the General Partner for the benefit of the Limited Partners;
(2ii) to reflect the admission, substitution or withdrawal of Partners or the termination of the Partnership in accordance with this Agreement, and to amend Exhibits Exhibit A and C in connection with such admission, substitution or withdrawal;
(3iii) to reflect a change that is of an inconsequential nature and does not adversely affect the Limited Partners in any material respect, or to cure any ambiguity, correct or supplement any provision in this Agreement not inconsistent with law or with other provisions, or make other changes with respect to matters arising under this Agreement that will not be inconsistent with law or with the provisions of this AgreementAgreement (including, without limitation, pursuant to Section 6.3(b)(vii));
(4iv) to satisfy any requirements, conditions or guidelines contained in any order, directive, opinion, ruling or regulation of a federal or state agency or contained in federal or state law;
(5v) (a) to reflect such changes as are reasonably necessary (i) for the General Partner or any other wholly owned subsidiary of a Special Limited Partner, as the case may be, to maintain its status as a “qualified REIT subsidiary” (within the meaning of Code Section 856(i)(2)) or (ii) for any Special Limited Partner Company to maintain its status as a REIT or to satisfy the REIT Requirements; (b) to reflect the Transfer of all or any part of a Partnership Interest among between the General Partner, the Special Limited Partners Company and any entity that is wholly owned, directly or any “qualified REIT subsidiary” (within indirectly, by the meaning of Code Section 856(i)(2)) with respect to any Special Limited PartnerCompany;
(6vi) to modify the manner in which Capital Accounts are computed (but only to the extent set forth in the definition of “Capital Account” or contemplated by the Code or the Regulations); and;
(7vii) the issuance of to issue additional Partnership Interests in accordance with Section 4.2;
(viii) to reflect any modification to this Agreement as is necessary or desirable (as determined by the General Partner in its sole and absolute discretion), including, without limitation, the definition of “Adjustment Factor,” to reflect the direct ownership of assets by the Company or the General Partner; and
(ix) to effectuate a split, reverse split, subdivision or combination or Partnership Common Units that applies equally to all Partnership Common Units. The General Partner will provide notice to the Limited Partners when any action under this Section 7.3C 7.3(c) is taken.
D. (d) Except as set forth in Section 7.3(c) hereof, without the Consent of a Majority in Interest of the Outside Limited Partners, this Agreement shall not be amended in a manner that disproportionately effects such Limited Partners, if such amendment would (i) alter the rights of any Partner to receive the distributions to which such Partner is entitled, pursuant to Article V or Section 13.2 hereof, or alter the allocations specified in Article VI hereof (except, in any case, as permitted pursuant to Sections 4.2, 5.5, 6.2(b) and 6.3(b)(vii)), (ii) alter or modify the Redemption rights, Cash Amount or REIT Shares Amount as set forth in Sections 8.6 and 11.2 hereof, or amend or modify any related definitions, or (iii) amend this Section 7.3(d).
(e) Notwithstanding Sections 7.3B 7.3(c) and 7.3C 7.3(d) hereof, this Agreement shall not be amended, and no action may be taken by the General Partner, without the Consent of each Partner adversely affectedaffected thereby, if such amendment or action would (i) convert a Limited Partner Interest in the Partnership into a General Partner Interest (except as a result of the General Partner acquiring such Partnership Interest), (ii) modify the limited liability of a Limited Partner, or (iii) alter the rights of any Partner to receive the distributions to which such Partner is entitled, pursuant to Article 5 or Section 13.2A(4) hereof, or alter the allocations specified in Article 6 hereof (except, in any case, as permitted pursuant to Sections 4.2 and 7.3C hereof), (iv) alter or modify the Redemption rights, Cash Amount or REIT Shares Amount as set forth in Sections 8.6 and 11.2 hereof, or amend or modify any related definitions, or (v) amend this Section 7.3D; provided, however, that the Consent of each Partner adversely affected shall not be required for any amendment or action that affects all Partners holding the same class or series of Partnership Units on a uniform or pro rata basis. Further, no amendment may alter the restrictions on the General Partner’s authority set forth elsewhere in this Section 7.3 without the Consent specified therein7.3(e). Any such amendment or action consented to by any Partner shall be effective as to that Partner, notwithstanding the absence of such consent by any other Partner.
Appears in 1 contract
Samples: Agreement of Limited Partnership (NorthStar Realty Europe Corp.)
Restrictions on General Partner’s Authority. A. The General Partner may not take any action in contravention of an express prohibition or limitation of this Agreement, including, without limitation:
(1) take 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) possess possessing Partnership property, or assign assigning any rights in specific Partnership property, for other than a Partnership purpose, purpose except as otherwise provided in this Agreement;
(3) admit admitting a Person as a Partner, except as otherwise provided in this Agreement;
(4) perform performing any act that would subject a Limited Partner to liability as a general partner in any jurisdiction or any other liability, liability except as provided herein or under the Act; or
(5) enter entering into any contract, mortgage, loan or other agreement that expressly prohibits or restricts, or has restricts the effect of prohibiting or restricting, the ability of (a) the General Partner, the Previous General Partner Company or the Partnership from satisfying its performing their respective obligations under Section 8.6 hereof this Agreement in full connection with a Redemption or (b) prohibits or restricts the ability of a Limited Partner from exercising to exercise its rights under Section 8.6 hereof to effect a Redemption in full, except, in either case, except with the written consent of such Limited Partner affected by the prohibition or restrictionPartner.
B. The General Partner shall not, without Without the prior Consent of the Limited Partners, undertakeneither the General Partner nor the Partnership may engage in, on behalf of the Partnership, any of the following actions cause or enter into any transaction that would have the effect of such transactionspermit:
(1) at any time:
(i) any action that would make it impossible to carry on the ordinary business of the Partnership, except as otherwise provided in this Agreement;
(ii) any action that would subject a Limited Partner to liability not contemplated in this Agreement or under the Act;
(iii) entering into any contract, mortgage loan or other agreement that expressly prohibits or restricts the Company or the Partnership from performing their respective specific obligations in connection with a Redemption as provided in Section 7.3C hereof, amend, modify 8.6 or terminate this Agreement other than restricts the ability of a Limited Partner to reflect exercise its rights of Redemption in full without the admission, substitution, termination or withdrawal written consent of Partners pursuant to Article 11 or Article 12 hereofsuch Limited Partner;
(2iv) make a except as explicitly permitted under Section 7.3.C, any amendment, modification or termination of this Agreement;
(v) any other direct or indirect transfer of all or any portion of the General Partner’s Partnership Interest, other than pursuant to and in accordance with Section 11.2;
(vi) any voluntary withdrawal of the General Partner as general partner except pursuant to and in accordance with Section 11.2;
(vii) any general assignment for the benefit of creditors creditors, or appoint appointment or acquiesce acquiescence in the appointment of a custodian, receiver or trustee for all or any part of the assets of the General Partner or the Partnership;
(3viii) institute the commencement of any proceeding for bankruptcy by or on behalf of the General Partner or the Partnership; or
(4ix) subject the confession of a judgment against the General Partner or the Partnership;
(x) the adoption of any plan of liquidation or dissolution of the General Partner or the Partnership;
(xi) any change in any election relating to the rights of Transfer provided in Sections 11.1C and 11.2 hereof, approve or acquiesce to the Transfer tax status of the Partnership or the Company, including, without limitation, the status of the General Partner as a REIT;
(xii) any admission into the Partnership of any Additional or Substitute General Partners, except pursuant to and in accordance with Article 11 or Article 12;
(2) until such time as the Consolidated Economic Ownership Interest of the ESL Holders has been less than forty percent (40%) for one hundred eighty (180) consecutive days:
(i) the sale, lease, exchange or other transfer of all or substantially all of the assets of the General Partner or the Partnership, whether in a single transaction or a series of related transactions;
(ii) any waiver of any restrictions in the Charter relating to the ownership and transfer of shares of beneficial interest of the General Partner, including, without limitation, any restriction preventing a person or admit into entity from owning, or being deemed to own, beneficially or by virtue of the applicable constructive ownership provisions of the Code, more than a percentage specified in the Charter, in value or in number of shares, whichever is more restrictive, of the outstanding shares of any class or series of shares of beneficial interest of the General Partner, including, without limitation, the REIT Shares; or
(iii) a Change of Control of the Partnership or any additional direct or successor indirect transfer of all or any portion of the General PartnersPartner’s Partnership Interest in connection with, or any other occurrence of, a merger, consolidation, conversion or other combination or extraordinary transaction involving the Partnership.
C. Notwithstanding Section 7.3B hereof7.3.B, the General Partner shall have the power, without the Consent of the Limited Partners, power to amend this Agreement as may be required to facilitate or implement any of the following purposes:
(1) to add reflect the issuance of additional Partnership Interests pursuant to Section 4.3.C or the obligations admission, substitution, termination or withdrawal of the General Partner or surrender any right or power granted to the General Partner or any Affiliate of the General Partner for the benefit of the Limited PartnersPartners in accordance with Articles 11 and 12;
(2) to reflect the admission, substitution or withdrawal of Partners or the termination of the Partnership in accordance with this Agreement, and to amend Exhibits A and C in connection with such admission, substitution or withdrawal;
(3) to reflect a change that is of an inconsequential nature and does not adversely affect the Limited Partners in any material respect, or to cure any ambiguity, correct or supplement any provision in this Agreement not inconsistent with law or with other provisions, or make other changes with respect to matters arising under this Agreement that will not be inconsistent with law or with the provisions of this Agreement;
(43) to satisfy any requirements, conditions or guidelines contained in any order, directive, opinion, ruling or regulation of a federal or state agency or contained in federal or state law;
(5) (a4) to reflect such changes as are reasonably necessary (i) for the General Partner or any other wholly owned subsidiary of a Special Limited Partner, as the case may be, to maintain its status as a “qualified REIT subsidiary” (within the meaning of Code Section 856(i)(2)) or (ii) for any Special Limited Partner to maintain its status as a REIT or to satisfy the REIT Requirements, including changes which may be necessitated due to a change in applicable law (or an authoritative interpretation thereof) or a ruling of the IRS; and
(b5) to reflect the Transfer of all or any part of a Partnership Interest among the General Partnermodify, the Special Limited Partners or any “qualified REIT subsidiary” (within the meaning of Code Section 856(i)(2)) with respect to any Special Limited Partner;
(6) to modify the manner in which Capital Accounts are computed (but only to the extent as set forth in the definition of “Capital Account,” or contemplated by the Code or the Regulations); and
(7) the issuance of additional Partnership Interests manner in accordance with Section 4.2which Capital Accounts are computed. The General Partner will provide notice to the Limited Partners when prior to taking any action under this Section 7.3C is taken.7.3.C.
D. Notwithstanding Sections 7.3B Section 7.3.B and 7.3C hereof7.3.C, this Agreement shall not be amendedamended with respect to any Partner adversely affected, and no action may be taken by the General Partner, without the Consent of each such Partner adversely affected, affected if such amendment or action would (i) convert a Limited Partner Interest Partner’s interest in the Partnership into a General Partner Interest general partner’s interest (except as a the result of the General Partner acquiring such Partnership Interestinterest), (ii) modify the limited liability of a Limited Partner, (iii) alter the rights of any the Partner to receive the distributions to which such Partner is entitled, pursuant to Article 5 or Section 13.2A(413.2.A(3) hereof, or alter the allocations specified in Article 6 hereof (except, in any case, except as permitted pursuant to Sections 4.2 Section 4.3 and 7.3C hereofSection 7.3.C(3)), (iv) materially alter or modify the rights of Redemption rights, Cash Amount or the REIT Shares Amount as set forth in Sections 8.6 Section 8.6, and 11.2 hereof, or amend or modify any related definitions, definitions thereof or (v) amend this Section 7.3D7.3.D; provided, however, that the Consent if all holders of each Partner adversely affected shall not be required for any amendment or action that affects all Partners holding Partnership Units of the same class or series of Partnership Units are adversely affected on a uniform or pro rata basis, this Agreement may be amended with respect to such Partners by the consent of Partners holding in the aggregate Percentage Interests of such class or series that are greater than fifty percent (50%) of the aggregate Percentage Interests of such class or series held by all Partners. Further, no amendment may alter the restrictions on the General Partner’s authority set forth elsewhere in this Section 7.3 without the Consent specified thereinin such section. Any such This Section 7.3D does not require unanimous consent of all Partners adversely affected unless the amendment or action consented is to by any Partner shall be effective as to that Partner, notwithstanding the absence of such consent by any other Partneragainst all Partners adversely affected.
Appears in 1 contract
Samples: Limited Partnership Agreement (Seritage Growth Properties)
Restrictions on General Partner’s Authority. A. The General Partner may not take any action in contravention of this Agreement, including, without limitation:
(1i) take any action that would make it impossible to carry on the ordinary business of the Partnership, except as otherwise provided in this Agreement;
(2ii) possess Partnership property, or assign any rights in specific Partnership property, for other than a Partnership purpose, purpose except as otherwise provided in this Agreement;
(3iii) admit a Person as a Partner, except as otherwise provided in this Agreement;
(4iv) perform any act that would subject a Limited Partner to liability as a general partner in any jurisdiction or any other liability, liability except as provided herein or under the Act; or
(5v) enter into perform any contract, mortgage, loan or other agreement act that prohibits or restricts, or has the effect of prohibiting or restricting, the ability of (a) the General Partner, the Previous General Partner or would subject the Partnership from satisfying its obligations to regulation as an "investment company" as such term is defined 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 fullthe Investment Company Act of 1940, except, in either case, with the written consent of such Limited Partner affected by the prohibition or restrictionas amended.
B. The General Partner shall not, without the prior Consent of the Partners (in addition to any Consent of the Limited PartnersPartners required by any other provision hereof), undertake, on behalf of the Partnership, any of the following actions or enter into any transaction that which would have the effect of such transactions:
(1i) except as provided in Section 7.3C hereof7.3.D below, amend, modify or terminate this Agreement other than to reflect the admission, substitution, termination or withdrawal of Partners partners pursuant to Article 11 or Article 12 hereof12;
(2ii) make a general assignment for the benefit of creditors or appoint or acquiesce in the appointment of a custodian, receiver or trustee for all or any part of the assets of the Partnership;
(3iii) institute any proceeding for bankruptcy on behalf of the Partnership;
(iv) confess a judgment against the Partnership; or
(4v) subject to the rights of Transfer provided in Sections 11.1C and 11.2 hereofenter into a merger (including a triangular merger), approve consolidation or acquiesce to the Transfer other combination of the Partnership Interest of the General Partner, with or admit into the Partnership any additional or successor General Partnersanother entity.
C. Except in the case of a Liquidating Event pursuant to Section 13.1 (other than Section 13.1.F), the General Partner shall not, without the prior Consent of the Limited Partners, undertake, on behalf of the Partnership, any actions or enter into any transaction which would have the effect of a dissolution of the Partnership, including a sale, exchange, transfer or other disposition of all or substantially all of the Partnership's assets in a single transaction or a series of related transactions.
D. Notwithstanding Sections 7.3.B and 7.3.C, but subject to Section 7.3B hereof7.3.E, the General Partner shall have the power, without the Consent of the Limited Partners, to amend this Agreement as may be required to facilitate or implement any of the following purposes:
(1i) to add to the obligations of the General Partner or surrender any right or power granted to the General Partner or any Affiliate of the General Partner for the benefit of the Limited Partners;
(2ii) to reflect the issuance of additional Partnership Interests pursuant to Section 4.3.B, or the admission, substitution substitution, termination, reduction in Partnership Units or withdrawal of Partners or the termination of the Partnership in accordance with this Agreement, and to amend Exhibits Agreement (which may be effected through the replacement of Exhibit A and C in connection with such admission, substitution or withdrawalan amended Exhibit A);
(3iii) to set forth or amend the designations, rights, powers, duties, and preferences of the holders of any additional Partnership Interests issued pursuant to Article 4;
(iv) to reflect a change that is of an inconsequential nature and does not adversely affect the Limited Partners in any material respect, or to cure any ambiguityambiguity in, correct or supplement any provision in this Agreement not inconsistent with law or with other provisionsprovision, or make other changes with respect to matters arising under under, this Agreement that will not be inconsistent with law or with the provisions of this Agreement;
(4v) to satisfy any requirements, conditions conditions, or guidelines contained in any order, directive, opinion, ruling or regulation of a federal or Federal, state of local agency or contained in federal Federal, state or state local law;.
(5) (avi) to reflect such changes as are reasonably necessary (i) for AMB, in its capacity as the indirect owner of 100% of the equity interests of the General Partner or any other wholly owned subsidiary of a Special Limited Partner, and as the case may besole general partner of the Operating Partnership, to maintain its status as a “qualified REIT subsidiary” REIT, including changes which may be necessitated due to a change in applicable law (within the meaning of Code Section 856(i)(2)or an authoritative interpretation thereof) or a ruling of the IRS; and
(ii) for any Special Limited Partner to maintain its status as a REIT or to satisfy the REIT Requirements; (bvii) to reflect modify, as set forth in the Transfer definition of all or any part of a Partnership Interest among the General Partner, the Special Limited Partners or any “qualified REIT subsidiary” (within the meaning of Code Section 856(i)(2)) with respect to any Special Limited Partner;
(6) to modify "Capital Account," the manner in which Capital Accounts are computed (but only to the extent set forth in the definition of “Capital Account” or contemplated by the Code or the Regulations); and
(7) the issuance of additional Partnership Interests in accordance with Section 4.2computed. The General Partner will provide notice to the Limited Partners when any action under this Section 7.3C 7.3.D is taken.
D. E. Notwithstanding Sections 7.3B 7.3.B, 7.3.C and 7.3C hereof7.3.D, this Agreement shall not be amended, and no action may be taken by the General Partner, including in either case through merger or sale of assets of the Partnership or otherwise, without the Consent of each Common Limited Partner or Preferred Limited Partner adversely affected, affected if such amendment or action would (i) convert a Limited Partner Interest Partner's interest in the Partnership into a General Partner Interest general partner's interest (except as a the result of the General Partner acquiring such Partnership Interestinterest), (ii) modify the limited liability of a Limited Partner, (iii) alter the rights of any the Partner to receive the distributions to which such Partner is entitled, pursuant to Article 5 or Section 13.2A(413.2.A(4) hereofor Articles 17, 18 or alter 19 or the allocations specified in Article 6 hereof (except, in any case, except as permitted pursuant to Sections 4.2 4.3 and 7.3C hereof7.3.D), (iv) alter the Series D Redemption or modify the Redemption rights, Cash Amount or REIT Shares Amount exchange rights as set forth in Sections 8.6 17.5 and 11.2 hereof17.8, respectively, the Series E Redemption or amend exchange rights as set forth in Sections 18.5 and 18.8, respectively, the Series F Redemption or modify any related definitionsexchange rights as set forth in Sections 19.5 and 19.8, respectively, the Series H Redemption or exchange rights as set forth in Sections 21.5 and 21.8, respectively, the Series I Redemption or exchange rights as set forth in Sections 22.5 and 22.8, respectively, the Class B Redemption as set forth in Section 23.4 or the Series N Redemption rights as set forth in Section 24.5, or (v) amend this Section 7.3D; provided, however, that the Consent of each Partner adversely affected shall not be required for any amendment or action that affects all Partners holding the same class or series of Partnership Units on a uniform or pro rata basis. 7.3.E. Further, no amendment may alter the restrictions on the General Partner’s 's authority set forth elsewhere in this Section 7.3 without the Consent specified therein. Any in such amendment or action consented to by any section.
F. The General Partner shall be effective not undertake to dispose of any Partnership Property specified in the agreements listed in Exhibit G in a taxable sale or taxable exchange prior to the dates specified in such agreements without the prior consent of each Limited Partner which contributed all or any portion of an interest in such Property to the Partnership, as to that Partner, notwithstanding the absence of set forth in such consent by any other Partneragreements.
Appears in 1 contract
Samples: Agreement of Limited Partnership (Amb Property Corp)
Restrictions on General Partner’s Authority. A. The General Partner may not take any action in contravention of this Agreement, including, without limitation:
(1i) take any action that would make it impossible to carry on the ordinary business of the Partnership, except as otherwise provided in this Agreement;
(2ii) possess Partnership property, or assign any rights in specific Partnership property, for other than a Partnership purpose, purpose except as otherwise provided in this Agreement;
(3iii) admit a Person as a Partner, except as otherwise provided in this Agreement;
(4iv) perform any act that would subject a Limited Partner to liability as a general partner in any jurisdiction or any other liability, liability except as provided herein or under the Act; or
(5v) enter into perform any contract, mortgage, loan or other agreement act that prohibits or restricts, or has the effect of prohibiting or restricting, the ability of (a) the General Partner, the Previous General Partner or would subject the Partnership from satisfying its obligations to regulation as an "investment company" as such term is defined 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 fullthe Investment Company Act of 1940, except, in either case, with the written consent of such Limited Partner affected by the prohibition or restrictionas amended.
B. The General Partner shall not, without the prior Consent of the Partners (in addition to any Consent of the Limited PartnersPartners required by any other provision hereof), undertake, on behalf of the Partnership, any of the following actions or enter into any transaction that which would have the effect of such transactions:
(1i) except as provided in Section 7.3C hereof7.3.D below, amend, modify or terminate this Agreement other than to reflect the admission, substitution, termination or withdrawal of Partners partners pursuant to Article 11 or Article 12 hereof12;
(2ii) make a general assignment for the benefit of creditors or appoint or acquiesce in the appointment of a custodian, receiver or trustee for all or any part of the assets of the Partnership;
(3iii) institute any proceeding for bankruptcy on behalf of the Partnership;
(iv) confess a judgment against the Partnership; or
(4v) subject to the rights of Transfer provided in Sections 11.1C and 11.2 hereofenter into a merger (including a triangular merger), approve consolidation or acquiesce to the Transfer other combination of the Partnership Interest of the General Partner, with or admit into the Partnership any additional or successor General Partnersanother entity.
C. Except in the case of a Liquidating Event pursuant to Section 13.1 (other than Section 13.1.F), the General Partner shall not, without the prior Consent of the Limited Partners, undertake, on behalf of the Partnership, any actions or enter into any transaction which would have the effect of a dissolution of the Partnership, including a sale, exchange, transfer or other disposition of all or substantially all of the Partnership's assets in a single transaction or a series of related transactions.
D. Notwithstanding Sections 7.3.B and 7.3.C, but subject to Section 7.3B hereof7.3.E, the General Partner shall have the power, without the Consent of the Limited Partners, to amend this Agreement as may be required to facilitate or implement any of the following purposes:
(1i) to add to the obligations of the General Partner or surrender any right or power granted to the General Partner or any Affiliate of the General Partner for the benefit of the Limited Partners;
(2ii) to reflect the admission, substitution or withdrawal of Partners or the termination of the Partnership in accordance with this Agreement, and to amend Exhibits A and C in connection with such admission, substitution or withdrawal;
(3) to reflect a change that is of an inconsequential nature and does not adversely affect the Limited Partners in any material respect, or to cure any ambiguity, correct or supplement any provision in this Agreement not inconsistent with law or with other provisions, or make other changes with respect to matters arising under this Agreement that will not be inconsistent with law or with the provisions of this Agreement;
(4) to satisfy any requirements, conditions or guidelines contained in any order, directive, opinion, ruling or regulation of a federal or state agency or contained in federal or state law;
(5) (a) to reflect such changes as are reasonably necessary (i) for the General Partner or any other wholly owned subsidiary of a Special Limited Partner, as the case may be, to maintain its status as a “qualified REIT subsidiary” (within the meaning of Code Section 856(i)(2)) or (ii) for any Special Limited Partner to maintain its status as a REIT or to satisfy the REIT Requirements; (b) to reflect the Transfer of all or any part of a Partnership Interest among the General Partner, the Special Limited Partners or any “qualified REIT subsidiary” (within the meaning of Code Section 856(i)(2)) with respect to any Special Limited Partner;
(6) to modify the manner in which Capital Accounts are computed (but only to the extent set forth in the definition of “Capital Account” or contemplated by the Code or the Regulations); and
(7) the issuance of additional Partnership Interests in accordance with Section 4.2. The General Partner will provide notice to the Limited Partners when any action under this Section 7.3C is taken.
D. Notwithstanding Sections 7.3B and 7.3C hereof, this Agreement shall not be amended, and no action may be taken by the General Partner, without the Consent of each Partner adversely affected, if such amendment or action would (i) convert a Limited Partner Interest in the Partnership into a General Partner Interest (except as a result of the General Partner acquiring such Partnership Interest), (ii) modify the limited liability of a Limited Partner, (iii) alter the rights of any Partner to receive the distributions to which such Partner is entitled, pursuant to Article 5 or Section 13.2A(4) hereof4.3.B, or alter the allocations specified in Article 6 hereof (exceptadmission, in any casesubstitution, as permitted pursuant to Sections 4.2 and 7.3C hereof)termination, (iv) alter or modify the Redemption rights, Cash Amount or REIT Shares Amount as set forth in Sections 8.6 and 11.2 hereof, or amend or modify any related definitions, or (v) amend this Section 7.3D; provided, however, that the Consent of each Partner adversely affected shall not be required for any amendment or action that affects all Partners holding the same class or series of Partnership Units on a uniform or pro rata basis. Further, no amendment may alter the restrictions on the General Partner’s authority set forth elsewhere in this Section 7.3 without the Consent specified therein. Any such amendment or action consented to by any Partner shall be effective as to that Partner, notwithstanding the absence of such consent by any other Partner.reduction in
Appears in 1 contract
Samples: Agreement of Limited Partnership (Amb Property Corp)
Restrictions on General Partner’s Authority. A. The General Partner may not take any action in contravention of this Agreement, including, without limitation:
(1i) take any action that would make it impossible to carry on the ordinary business of the Partnership, except as otherwise provided in this Agreement;
(2ii) possess Partnership property, or assign any rights in specific Partnership property, for other than a Partnership purpose, purpose except as otherwise provided in this Agreement;
(3iii) admit a Person as a Partner, except as otherwise provided in this Agreement;
(4iv) perform any act that would subject a Limited Partner to liability as a general partner in any jurisdiction or any other liability, liability except as provided herein or under the Act; or
(5v) enter into perform any contract, mortgage, loan or other agreement act that prohibits or restricts, or has the effect of prohibiting or restricting, the ability of (a) the General Partner, the Previous General Partner or would subject the Partnership from satisfying its obligations to regulation as an "investment company" as such term is defined 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 fullthe Investment Company Act of 1940, except, in either case, with the written consent of such Limited Partner affected by the prohibition or restrictionas amended.
B. The General Partner shall not, without the prior Consent of the Partners (in addition to any Consent of the Limited PartnersPartners required by any other provision hereof), undertake, on behalf of the Partnership, any of the following actions or enter into any transaction that which would have the effect of such transactions:
(1i) except as provided in Section 7.3C hereof7.3.D below, amend, modify or terminate this Agreement other than to reflect the admission, substitution, termination or withdrawal of Partners partners pursuant to Article 11 or Article 12 hereof12;
(2ii) make a general assignment for the benefit of creditors or appoint or acquiesce in the appointment of a custodian, receiver or trustee for all or any part of the assets of the Partnership;
(3iii) institute any proceeding for bankruptcy on behalf of the Partnership;
(iv) confess a judgment against the Partnership; or
(4v) subject to the rights of Transfer provided in Sections 11.1C and 11.2 hereofenter into a merger (including a triangular merger), approve consolidation or acquiesce to the Transfer other combination of the Partnership Interest of the General Partner, with or admit into the Partnership any additional or successor General Partnersanother entity.
C. Except in the case of a Liquidating Event pursuant to Section 13.1 (other than Section 13.1.F), the General Partner shall not, without the prior Consent of the Limited Partners, undertake, on behalf of the Partnership, any actions or enter into any transaction which would have the effect of a dissolution of the Partnership, including a sale, exchange, transfer or other disposition of all or substantially all of the Partnership's assets in a single transaction or a series of related transactions.
D. Notwithstanding Sections 7.3.B and 7.3.C, but subject to Section 7.3B hereof7.3.E, the General Partner shall have the power, without the Consent of the Limited Partners, to amend this Agreement as may be required to facilitate or implement any of the following purposes:
(1i) to add to the obligations of the General Partner or surrender any right or power granted to the General Partner or any Affiliate of the General Partner for the benefit of the Limited Partners;
(2ii) to reflect the issuance of additional Partnership Interests pursuant to Section 4.3.B, or the admission, substitution substitution, termination, reduction in Partnership Units or withdrawal of Partners or the termination of the Partnership in accordance with this Agreement, and to amend Exhibits Agreement (which may be effected through the replacement of Exhibit A and C in connection with such admission, substitution or withdrawalan amended Exhibit A);
(3iii) to set forth or amend the designations, rights, powers, duties, and preferences of the holders of any additional Partnership Interests issued pursuant to Article 4;
(iv) to reflect a change that is of an inconsequential nature and does not adversely affect the Limited Partners in any material respect, or to cure any ambiguityambiguity in, correct or supplement any provision in this Agreement not inconsistent with law or with other provisionsprovision, or make other changes with respect to matters arising under under, this Agreement that will not be inconsistent with law or with the provisions of this Agreement;
(4v) to satisfy any requirements, conditions conditions, or guidelines contained in any order, directive, opinion, ruling or regulation of a federal or Federal, state of local agency or contained in federal Federal, state or state local law;.
(5) (avi) to reflect such changes as are reasonably necessary (i) for AMB, in its capacity as the sole stockholder of the General Partner or any other wholly owned subsidiary of a Special Limited Partner, and as the case may besole general partner of the Operating Partnership, to maintain its status as a “qualified REIT subsidiary” REIT, including changes which may be necessitated due to a change in applicable law (within the meaning of Code Section 856(i)(2)or an authoritative interpretation thereof) or a ruling of the IRS; and
(ii) for any Special Limited Partner to maintain its status as a REIT or to satisfy the REIT Requirements; (bvii) to reflect modify, as set forth in the Transfer definition of all or any part of a Partnership Interest among the General Partner, the Special Limited Partners or any “qualified REIT subsidiary” (within the meaning of Code Section 856(i)(2)) with respect to any Special Limited Partner;
(6) to modify "Capital Account," the manner in which Capital Accounts are computed (but only to the extent set forth in the definition of “Capital Account” or contemplated by the Code or the Regulations); and
(7) the issuance of additional Partnership Interests in accordance with Section 4.2computed. The General Partner will provide notice to the Limited Partners when any action under this Section 7.3C 7.3.D is taken.
D. E. Notwithstanding Sections 7.3B 7.3.B, 7.3.C and 7.3C hereof7.3.D, this Agreement shall not be amended, and no action may be taken by the General Partner, including in either case through merger or sale of assets of the Partnership or otherwise, without the Consent of each Common Limited Partner or Preferred Limited Partner adversely affected, affected if such amendment or action would (i) convert a Limited Partner Interest Partner's interest in the Partnership into a General Partner Interest general partner's interest (except as a the result of the General Partner acquiring such Partnership Interestinterest), (ii) modify the limited liability of a Limited Partner, (iii) alter the rights of any the Partner to receive the distributions to which such Partner is entitled, pursuant to Article 5 or Section 13.2A(413.2.A(4) hereofor Articles 17, 18 or alter 19 or the allocations specified in Article 6 hereof (except, in any case, except as permitted pursuant to Sections 4.2 4.3 and 7.3C hereof7.3.D), (iv) alter the Series D Redemption or modify the Redemption rights, Cash Amount or REIT Shares Amount exchange rights as set forth in Sections 8.6 17.5 and 11.2 hereof17.8, respectively, the Series E Redemption or exchange rights as set forth in Sections 18.5 and 18.8, respectively, the Series F Redemption or exchange rights as set forth in Sections 19.5 and 19.8, respectively, the Series H Redemption or exchange rights as set forth in Sections 21.5 and 21.8, respectively, the Series I Redemption or exchange rights as set forth in Sections 22.5 and 22.8, respectively, or amend or modify any related definitions, the Class B Redemption as set forth in Section 23.4 or (v) amend this Section 7.3D; provided, however, that the Consent of each Partner adversely affected shall not be required for any amendment or action that affects all Partners holding the same class or series of Partnership Units on a uniform or pro rata basis. 7.3.E. Further, no amendment may alter the restrictions on the General Partner’s 's authority set forth elsewhere in this Section 7.3 without the Consent specified therein. Any in such amendment or action consented to by any section.
F. The General Partner shall be effective not undertake to dispose of any Partnership Property specified in the agreements listed in Exhibit G in a taxable sale or taxable exchange prior to the dates specified in such agreements without the prior consent of each Limited Partner which contributed all or any portion of an interest in such Property to the Partnership, as to that Partner, notwithstanding the absence of set forth in such consent by any other Partneragreements.
Appears in 1 contract
Restrictions on General Partner’s Authority. A. The General Partner may not take any action in contravention of this Agreement, including, without limitation:
(1i) take any action that would make it impossible to carry on the ordinary business of the Partnership, except as otherwise provided in this Agreement;
(2ii) possess Partnership property, or assign any rights in specific Partnership property, for other than a Partnership purpose, purpose except as otherwise provided in this Agreement;
(3iii) admit a Person as a Partner, except as otherwise provided in this Agreement;
(4iv) perform any act that would subject a Limited Partner to liability as a general partner in any jurisdiction or any other liability, liability except as provided herein or under the Act; or
(5v) enter into perform any contract, mortgage, loan or other agreement act that prohibits or restricts, or has the effect of prohibiting or restricting, the ability of (a) the General Partner, the Previous General Partner or would subject the Partnership from satisfying its obligations to regulation as an “investment company” as such term is defined 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 fullthe Investment Company Act of 1940, except, in either case, with the written consent of such Limited Partner affected by the prohibition or restrictionas amended.
B. The General Partner shall not, without the prior Consent of the Partners (in addition to any Consent of the Limited PartnersPartners required by any other provision hereof), undertake, on behalf of the Partnership, any of the following actions or enter into any transaction that which would have the effect of such transactions:
(1i) except as provided in Section 7.3C hereof7.3.D below, amend, modify or terminate this Agreement other than to reflect the admission, substitution, termination or withdrawal of Partners partners pursuant to Article 11 or Article 12 hereof12;
(2ii) make a general assignment for the benefit of creditors or appoint or acquiesce in the appointment of a custodian, receiver or trustee for all or any part of the assets of the Partnership;
(3iii) institute any proceeding for bankruptcy on behalf of the Partnership;
(iv) confess a judgment against the Partnership; or
(4v) subject to the rights of Transfer provided in Sections 11.1C and 11.2 hereofenter into a merger (including a triangular merger), approve consolidation or acquiesce to the Transfer other combination of the Partnership Interest of the General Partner, with or admit into the Partnership any additional or successor General Partnersanother entity.
C. Except in the case of a Liquidating Event pursuant to Section 13.1 (other than Section 13.1.F), the General Partner shall not, without the prior Consent of the Limited Partners, undertake, on behalf of the Partnership, any actions or enter into any transaction which would have the effect of a dissolution of the Partnership, including a sale, exchange, transfer or other disposition of all or substantially all of the Partnership’s assets in a single transaction or a series of related transactions.
D. Notwithstanding Sections 7.3.B and 7.3.C, but subject to Section 7.3B hereof7.3.E, the General Partner shall have the power, without the Consent of the Limited Partners, to amend this Agreement as may be required to facilitate or implement any of the following purposes:
(1i) to add to the obligations of the General Partner or surrender any right or power granted to the General Partner or any Affiliate of the General Partner for the benefit of the Limited Partners;
(2ii) to reflect the issuance of additional Partnership Interests pursuant to Section 4.3.B, or the admission, substitution substitution, termination, reduction in Partnership Units or withdrawal of Partners or the termination of the Partnership in accordance with this Agreement, and to amend Exhibits Agreement (which may be effected through the replacement of Exhibit A and C in connection with such admission, substitution or withdrawalan amended Exhibit A);
(3iii) to set forth or amend the designations, rights, powers, duties, and preferences of the holders of any additional Partnership Interests issued pursuant to Article 4;
(iv) to reflect a change that is of an inconsequential nature and does not adversely affect the Limited Partners in any material respect, or to cure any ambiguityambiguity in, correct or supplement any provision in this Agreement not inconsistent with law or with other provisionsprovision, or make other changes with respect to matters arising under under, this Agreement that will not be inconsistent with law or with the provisions of this Agreement;
(4v) to satisfy any requirements, conditions conditions, or guidelines contained in any order, directive, opinion, ruling or regulation of a federal or Federal, state of local agency or contained in federal Federal, state or state local law;.
(5) (avi) to reflect such changes as are reasonably necessary (i) for AMB, in its capacity as the indirect owner of 100% of the equity interests of the General Partner or any other wholly owned subsidiary of a Special Limited Partner, and as the case may besole general partner of the Operating Partnership, to maintain its status as a “qualified REIT subsidiary” REIT, including changes which may be necessitated due to a change in applicable law (within the meaning of Code Section 856(i)(2)or an authoritative interpretation thereof) or a ruling of the IRS; and
(ii) for any Special Limited Partner to maintain its status as a REIT or to satisfy the REIT Requirements; (bvii) to reflect the Transfer of all or any part of a Partnership Interest among the General Partnermodify, the Special Limited Partners or any “qualified REIT subsidiary” (within the meaning of Code Section 856(i)(2)) with respect to any Special Limited Partner;
(6) to modify the manner in which Capital Accounts are computed (but only to the extent as set forth in the definition of “Capital Account,” or contemplated by the Code or the Regulations); and
(7) the issuance of additional Partnership Interests manner in accordance with Section 4.2which Capital Accounts are computed. The General Partner will provide notice to the Limited Partners when any action under this Section 7.3C 7.3.D is taken.
D. E. Notwithstanding Sections 7.3B 7.3.B, 7.3.C and 7.3C hereof7.3.D, this Agreement shall not be amended, and no action may be taken by the General Partner, including in either case through merger or sale of assets of the Partnership or otherwise, without the Consent of each Common Limited Partner or Preferred Limited Partner adversely affected, affected if such amendment or action would (i) convert a Limited Partner Interest Partner’s interest in the Partnership into a General Partner Interest general partner’s interest (except as a the result of the General Partner acquiring such Partnership Interestinterest), (ii) modify the limited liability of a Limited Partner, (iii) alter the rights of any the Partner to receive the distributions to which such Partner is entitled, pursuant to Article 5 or Section 13.2A(413.2.A(4) hereof, or alter Article 17 or the allocations specified in Article 6 hereof (except, in any case, except as permitted pursuant to Sections 4.2 4.3 and 7.3C hereof7.3.D), (iv) alter the Series D Redemption or modify the Redemption rights, Cash Amount or REIT Shares Amount exchange rights as set forth in Sections 8.6 17.5 and 11.2 hereof17.8, respectively, the Series I Redemption or exchange rights as set forth in Sections 22.5 and 22.8, respectively, or amend or modify any related definitionsthe Class B Redemption as set forth in Section 23.4, or (v) amend this Section 7.3D; provided, however, that the Consent of each Partner adversely affected shall not be required for any amendment or action that affects all Partners holding the same class or series of Partnership Units on a uniform or pro rata basis. 7.3.E. Further, no amendment may alter the restrictions on the General Partner’s authority set forth elsewhere in this Section 7.3 without the Consent specified therein. Any in such amendment or action consented to by any section.
F. The General Partner shall be effective not undertake to dispose of any Partnership Property specified in the agreements listed in Exhibit G in a taxable sale or taxable exchange prior to the dates specified in such agreements without the prior consent of each Limited Partner which contributed all or any portion of an interest in such Property to the Partnership, as to that Partner, notwithstanding the absence of set forth in such consent by any other Partneragreements.
Appears in 1 contract
Restrictions on General Partner’s Authority. A. The General Partner may not take any action in contravention of this Agreement, including, without limitation:
(1i) take any action that would make it impossible to carry on the ordinary business of the Partnership, except as otherwise provided in this Agreement;
(2ii) possess Partnership property, or assign any rights in specific Partnership property, for other than a Partnership purpose, purpose except as otherwise provided in this Agreement;
(3iii) admit a Person as a Partner, except as otherwise provided in this Agreement;
(4iv) perform any act that would subject a Limited Partner to liability as a general partner in any jurisdiction or any other liability, liability except as provided herein or under the Act; or
(5v) enter into perform any contract, mortgage, loan or other agreement act that prohibits or restricts, or has the effect of prohibiting or restricting, the ability of (a) the General Partner, the Previous General Partner or would subject the Partnership from satisfying its obligations to regulation as an "investment company" as such term is defined 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 fullthe Investment Company Act of 1940, except, in either case, with the written consent of such Limited Partner affected by the prohibition or restrictionas amended.
B. The General Partner shall not, without the prior Consent of the Partners (in addition to any Consent of the Limited PartnersPartners required by any other provision hereof), undertake, on behalf of the Partnership, any of the following actions or enter into any transaction that which would have the effect of such transactions:
(1i) except as provided in Section 7.3C hereof7.3.D below, amend, modify or terminate this Agreement other than to reflect the admission, substitution, termination or withdrawal of Partners partners pursuant to Article 11 or Article 12 hereof12;
(2ii) make a general assignment for the benefit of creditors or appoint or acquiesce in the appointment of a custodian, receiver or trustee for all or any part of the assets of the Partnership;
(3iii) institute any proceeding for bankruptcy on behalf of the Partnership;
(iv) confess a judgment against the Partnership; or
(4v) subject to the rights of Transfer provided in Sections 11.1C and 11.2 hereofenter into a merger (including a triangular merger), approve consolidation or acquiesce to the Transfer other combination of the Partnership Interest of the General Partner, with or admit into the Partnership any additional or successor General Partnersanother entity.
C. Except in the case of a Liquidating Event pursuant to Section 13.1 (other than Section 13.1.F), the General Partner shall not, without the prior Consent of the Limited Partners, undertake, on behalf of the Partnership, any actions or enter into any transaction which would have the effect of a dissolution of the Partnership, including a sale, exchange, transfer or other disposition of all or substantially all of the Partnership's assets in a single transaction or a series of related transactions.
D. Notwithstanding Sections 7.3.B and 7.3.C, but subject to Section 7.3B hereof7.3.E, the General Partner shall have the power, without the Consent of the Limited Partners, to amend this Agreement as may be required to facilitate or implement any of the following purposes:
(1i) to add to the obligations of the General Partner or surrender any right or power granted to the General Partner or any Affiliate of the General Partner for the benefit of the Limited Partners;
(2ii) to reflect the issuance of additional Partnership Interests pursuant to Section 4.3.B, or the admission, substitution substitution, termination, reduction in Partnership Units or withdrawal of Partners or the termination of the Partnership in accordance with this Agreement, and to amend Exhibits Agreement (which may be effected through the replacement of Exhibit A and C in connection with such admission, substitution or withdrawalan amended Exhibit A);
(3iii) to set forth or amend the designations, rights, powers, duties, and preferences of the holders of any additional Partnership Interests issued pursuant to Article 4;
(iv) to reflect a change that is of an inconsequential nature and does not adversely affect the Limited Partners in any material respect, or to cure any ambiguityambiguity in, correct or supplement any provision in this Agreement not inconsistent with law or with other provisionsprovision, or make other changes with respect to matters arising under under, this Agreement that will not be inconsistent with law or with the provisions of this Agreement;
(4v) to satisfy any requirements, conditions conditions, or guidelines contained in any order, directive, opinion, ruling or regulation of a federal or Federal, state of local agency or contained in federal Federal, state or state local law;.
(5) (avi) to reflect such changes as are reasonably necessary (i) for AMB, in its capacity as the sole stockholder of the General Partner or any other wholly owned subsidiary of a Special Limited Partner, and as the case may besole general partner of the Operating Partnership, to maintain its status as a “qualified REIT subsidiary” REIT, including changes which may be necessitated due to a change in applicable law (within the meaning of Code Section 856(i)(2)or an authoritative interpretation thereof) or a ruling of the IRS; and
(ii) for any Special Limited Partner to maintain its status as a REIT or to satisfy the REIT Requirements; (bvii) to reflect modify, as set forth in the Transfer definition of all or any part of a Partnership Interest among the General Partner, the Special Limited Partners or any “qualified REIT subsidiary” (within the meaning of Code Section 856(i)(2)) with respect to any Special Limited Partner;
(6) to modify "Capital Account," the manner in which Capital Accounts are computed (but only to the extent set forth in the definition of “Capital Account” or contemplated by the Code or the Regulations); and
(7) the issuance of additional Partnership Interests in accordance with Section 4.2computed. The General Partner will provide notice to the Limited Partners when any action under this Section 7.3C 7.3.D is taken.
D. E. Notwithstanding Sections 7.3B 7.3.B, 7.3.C and 7.3C hereof7.3.D, this Agreement shall not be amended, and no action may be taken by the General Partner, including in either case through merger or sale of assets of the Partnership or otherwise, without the Consent of each Common Limited Partner or Preferred Limited Partner adversely affected, affected if such amendment or action would (i) convert a Limited Partner Interest Partner's interest in the Partnership into a General Partner Interest general partner's interest (except as a the result of the General Partner acquiring such Partnership Interestinterest), (ii) modify the limited liability of a Limited Partner, (iii) alter the rights of any the Partner to receive the distributions to which such Partner is entitled, pursuant to Article 5 or Section 13.2A(413.2.A(4) hereofor Articles 16, 17, 18 or alter 19 or the allocations specified in Article 6 hereof (except, in any case, except as permitted pursuant to Sections 4.2 4.3 and 7.3C hereof7.3.D), (iv) alter the Series C Redemption or modify the Redemption rights, Cash Amount or REIT Shares Amount exchange rights as set forth in Sections 8.6 16.5 and 11.2 hereof16.8, respectively, the Series D Redemption or exchange rights as set forth in Sections 17.5 and 17.8, respectively, the Series E Redemption or exchange rights as set forth in Sections 18.5 and 18.8, respectively, or amend the Series F Redemption or modify any related definitionsexchange rights as set forth in Sections 19.5 and 19.8, respectively, or (v) amend this Section 7.3D; provided, however, that the Consent of each Partner adversely affected shall not be required for any amendment or action that affects all Partners holding the same class or series of Partnership Units on a uniform or pro rata basis. 7.3.E. Further, no amendment may alter the restrictions on the General Partner’s 's authority set forth elsewhere in this Section 7.3 without the Consent specified therein. Any in such amendment or action consented to by any section.
F. The General Partner shall be effective not undertake to dispose of any Partnership Property specified in the agreements listed in Exhibit G in a taxable sale or taxable exchange prior to the dates specified in such agreements without the prior consent of each Limited Partner which contributed all or any portion of an interest in such Property to the Partnership, as to that Partner, notwithstanding the absence of set forth in such consent by any other Partneragreements.
Appears in 1 contract
Restrictions on General Partner’s Authority. A. The General Partner may not take any action in contravention of this Agreement, including, without limitation:
(1i) take any action that would make it impossible to carry on the ordinary business of the Partnership, except as otherwise provided in this Agreement;
(2ii) possess Partnership property, or assign any rights in specific Partnership property, for other than a Partnership purpose, purpose except as otherwise provided in this Agreement;
(3iii) admit a Person as a Partner, except as otherwise provided in this Agreement;
(4iv) perform any act that would subject a Limited Partner to liability as a general partner in any jurisdiction or any other liability, liability except as provided herein or under the Act; or
(5v) enter into perform any contract, mortgage, loan or other agreement act that prohibits or restricts, or has the effect of prohibiting or restricting, the ability of (a) the General Partner, the Previous General Partner or would subject the Partnership from satisfying its obligations to regulation as an “investment company” as such term is defined 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 fullthe Investment Company Act of 1940, except, in either case, with the written consent of such Limited Partner affected by the prohibition or restrictionas amended.
B. The General Partner shall not, without the prior Consent of the Partners (in addition to any Consent of the Limited PartnersPartners required by any other provision hereof), undertake, on behalf of the Partnership, any of the following actions or enter into any transaction that which would have the effect of such transactions:
(1i) except as provided in Section 7.3C hereof7.3.D below, amend, modify or terminate this Agreement other than to reflect the admission, substitution, termination or withdrawal of Partners partners pursuant to Article 11 or Article 12 hereof12;
(2ii) make a general assignment for the benefit of creditors or appoint or acquiesce in the appointment of a custodian, receiver or trustee for all or any part of the assets of the Partnership;
(3iii) institute any proceeding for bankruptcy on behalf of the Partnership;
(iv) confess a judgment against the Partnership; or
(4v) subject to the rights of Transfer provided in Sections 11.1C and 11.2 hereofenter into a merger (including a triangular merger), approve consolidation or acquiesce to the Transfer other combination of the Partnership Interest of the General Partner, with or admit into the Partnership any additional or successor General Partnersanother entity.
C. Except in the case of a Liquidating Event pursuant to Section 13.1 (other than Section 13.1.F), the General Partner shall not, without the prior Consent of the Limited Partners, undertake, on behalf of the Partnership, any actions or enter into any transaction which would have the effect of a dissolution of the Partnership, including a sale, exchange, transfer or other disposition of all or substantially all of the Partnership’s assets in a single transaction or a series of related transactions.
D. Notwithstanding Sections 7.3.B and 7.3.C, but subject to Section 7.3B hereof7.3.E, the General Partner shall have the power, without the Consent of the Limited Partners, to amend this Agreement as may be required to facilitate or implement any of the following purposes:
(1i) to add to the obligations of the General Partner or surrender any right or power granted to the General Partner or any Affiliate of the General Partner for the benefit of the Limited Partners;
(2ii) to reflect the issuance of additional Partnership Interests pursuant to Section 4.3.B, or the admission, substitution substitution, termination, reduction in Partnership Units or withdrawal of Partners or the termination of the Partnership in accordance with this Agreement, and to amend Exhibits Agreement (which may be effected through the replacement of Exhibit A and C in connection with such admission, substitution or withdrawalan amended Exhibit A);
(3iii) to set forth or amend the designations, rights, powers, duties, and preferences of the holders of any additional Partnership Interests issued pursuant to Article 4;
(iv) to reflect a change that is of an inconsequential nature and does not adversely affect the Limited Partners in any material respect, or to cure any ambiguityambiguity in, correct or supplement any provision in this Agreement not inconsistent with law or with other provisionsprovision, or make other changes with respect to matters arising under under, this Agreement that will not be inconsistent with law or with the provisions of this Agreement;
(4v) to satisfy any requirements, conditions conditions, or guidelines contained in any order, directive, opinion, ruling or regulation of a federal or Federal, state of local agency or contained in federal Federal, state or state local law;
(5) (avi) to reflect such changes as are reasonably necessary (i) for AMB, in its capacity as the owner of 100% of the equity interests of the General Partner or any other wholly owned subsidiary of a Special Limited Partner, and as the case may besole general partner of the Operating Partnership, to maintain its status as a “qualified REIT subsidiary” REIT, including changes which may be necessitated due to a change in applicable law (within the meaning of Code Section 856(i)(2)or an authoritative interpretation thereof) or a ruling of the IRS; and
(ii) for any Special Limited Partner to maintain its status as a REIT or to satisfy the REIT Requirements; (bvii) to reflect the Transfer of all or any part of a Partnership Interest among the General Partnermodify, the Special Limited Partners or any “qualified REIT subsidiary” (within the meaning of Code Section 856(i)(2)) with respect to any Special Limited Partner;
(6) to modify the manner in which Capital Accounts are computed (but only to the extent as set forth in the definition of “Capital Account,” or contemplated by the Code or the Regulations); and
(7) the issuance of additional Partnership Interests manner in accordance with Section 4.2which Capital Accounts are computed. The General Partner will provide notice to the Limited Partners when any action under this Section 7.3C 7.3.D is taken.
D. E. Notwithstanding Sections 7.3B 7.3.B, 7.3.C and 7.3C hereof7.3.D, this Agreement shall not be amended, and no action may be taken by the General Partner, including in either case through merger or sale of assets of the Partnership or otherwise, without the Consent of each Common Limited Partner or Preferred Limited Partner adversely affected, affected if such amendment or action would (i) convert a Limited Partner Interest Partner’s interest in the Partnership into a General Partner Interest general partner’s interest (except as a the result of the General Partner acquiring such Partnership Interestinterest), (ii) modify the limited liability of a Limited Partner, (iii) alter the rights of any the Partner to receive the distributions to which such Partner is entitled, pursuant to Article 5 or Section 13.2A(413.2.A(4) hereof, or alter the allocations specified in Article 6 hereof (except, in any case, except as permitted pursuant to Sections 4.2 4.3 and 7.3C hereof7.3.D), (iv) alter or modify the Class B Redemption rights, Cash Amount or REIT Shares Amount as set forth in Sections 8.6 and 11.2 hereof, or amend or modify any related definitionsSection 23.4, or (v) amend this Section 7.3D; provided, however, that the Consent of each Partner adversely affected shall not be required for any amendment or action that affects all Partners holding the same class or series of Partnership Units on a uniform or pro rata basis. 7.3.E. Further, no amendment may alter the restrictions on the General Partner’s authority set forth elsewhere in this Section 7.3 without the Consent specified therein. Any in such amendment or action consented to by any section.
F. The General Partner shall be effective not undertake to dispose of any Partnership Property specified in the agreements listed in Exhibit G in a taxable sale or taxable exchange prior to the dates specified in such agreements without the prior consent of each Limited Partner which contributed all or any portion of an interest in such Property to the Partnership, as to that Partner, notwithstanding the absence of set forth in such consent by any other Partneragreements.
Appears in 1 contract
Restrictions on General Partner’s Authority. A. The General Partner may not take any action in contravention of this Agreement, including, without limitation:
(1i) take any action that would make it impossible to carry on the ordinary business of the Partnership, except as otherwise provided in this Agreement;
(2ii) possess Partnership property, or assign any rights in specific Partnership property, for other than a Partnership purpose, purpose except as otherwise provided in this Agreement;
(3iii) admit a Person as a Partner, except as otherwise provided in this AgreementAgreement (including with respect to the PLPs, who shall become Partners upon their receipt of Performance Units);
(4iv) perform any act that would subject a Limited Partner to liability as a general partner in any jurisdiction or any other liability, liability except as provided herein or under the Act; or
(5v) enter into any contract, mortgage, loan or other agreement that prohibits or restricts, or has the effect of prohibiting or restricting, the ability of (a) the General Partner, the Previous General Partner or the Partnership from satisfying its obligations under Section 8.6 hereof in full or (b) a Limited Partner from exercising to exercise its rights under Section 8.6 hereof to effect a Redemption in full, except, in either case, except with the written consent of such Limited Partner affected by the prohibition or restrictionPartner.
B. The General Partner shall not, without the prior Consent of the Partners (in addition to any Consent of the Limited PartnersPartners required by any other provision hereof), undertake, on behalf of the Partnership, any of the following actions or enter into any transaction that which would have the effect of such transactions:
(1i) except as provided in Section 7.3C hereof7.3.D below, amend, modify or terminate this Agreement other than to reflect the admission, substitution, termination or withdrawal of Partners partners pursuant to Article 11 or Article 12 hereof12;
(2ii) make a general assignment for the benefit of creditors or appoint or acquiesce in the appointment of a custodian, receiver or trustee for all or any part of the assets of the Partnership;
(3iii) institute any proceeding for bankruptcy on behalf of the Partnership;
(iv) confess a judgment against the Partnership; or
(4v) subject to the rights of Transfer provided in Sections 11.1C and 11.2 hereofenter into a merger (including a triangular merger), approve consolidation or acquiesce to the Transfer other combination of the Partnership Interest of the General Partner, with or admit into the Partnership any additional or successor General Partnersanother entity.
C. Notwithstanding Section 7.3B hereof, the General Partner shall have the power, without the Consent of the Limited Partners, to amend this Agreement as may be required to facilitate or implement any of the following purposes:
(1) to add to the obligations of the General Partner or surrender any right or power granted to the General Partner or any Affiliate of the General Partner for the benefit of the Limited Partners;
(2) to reflect the admission, substitution or withdrawal of Partners or the termination of the Partnership in accordance with this Agreement, and to amend Exhibits A and C in connection with such admission, substitution or withdrawal;
(3) to reflect a change that is of an inconsequential nature and does not adversely affect the Limited Partners in any material respect, or to cure any ambiguity, correct or supplement any provision in this Agreement not inconsistent with law or with other provisions, or make other changes with respect to matters arising under this Agreement that will not be inconsistent with law or with the provisions of this Agreement;
(4) to satisfy any requirements, conditions or guidelines contained in any order, directive, opinion, ruling or regulation of a federal or state agency or contained in federal or state law;
(5) (a) to reflect such changes as are reasonably necessary (i) for the General Partner or any other wholly owned subsidiary of a Special Limited Partner, as the case may be, to maintain its status as a “qualified REIT subsidiary” (within the meaning of Code Section 856(i)(2)) or (ii) for any Special Limited Partner to maintain its status as a REIT or to satisfy the REIT Requirements; (b) to reflect the Transfer of all or any part of a Partnership Interest among the General Partner, the Special Limited Partners or any “qualified REIT subsidiary” (within the meaning of Code Section 856(i)(2)) with respect to any Special Limited Partner;
(6) to modify the manner in which Capital Accounts are computed (but only to the extent set forth in the definition of “Capital Account” or contemplated by the Code or the Regulations); and
(7) the issuance of additional Partnership Interests in accordance with Section 4.2. The General Partner will provide notice to the Limited Partners when any action under this Section 7.3C is taken.
D. Notwithstanding Sections 7.3B and 7.3C hereof, this Agreement shall not be amended, and no action may be taken by the General Partner, without the Consent of each Partner adversely affected, if such amendment or action would (i) convert a Limited Partner Interest in the Partnership into a General Partner Interest (except as a result of the General Partner acquiring such Partnership Interest), (ii) modify the limited liability of a Limited Partner, (iii) alter the rights of any Partner to receive the distributions to which such Partner is entitled, pursuant to Article 5 or Section 13.2A(4) hereof, or alter the allocations specified in Article 6 hereof (except, in any case, as permitted pursuant to Sections 4.2 and 7.3C hereof), (iv) alter or modify the Redemption rights, Cash Amount or REIT Shares Amount as set forth in Sections 8.6 and 11.2 hereof, or amend or modify any related definitions, or (v) amend this Section 7.3D; provided, however, that the Consent of each Partner adversely affected shall not be required for any amendment or action that affects all Partners holding the same class or series of Partnership Units on a uniform or pro rata basis. Further, no amendment may alter the restrictions on the General Partner’s authority set forth elsewhere in this Section 7.3 without the Consent specified therein. Any such amendment or action consented to by any Partner shall be effective as to that Partner, notwithstanding the absence of such consent by any other Partner.
Appears in 1 contract
Restrictions on General Partner’s Authority. A. (a) The General Partner may not take any action in contravention of an express prohibition or limitation of this Agreement, including, without limitation:
(1i) take any action that would make it impossible to carry on the ordinary business of the Partnership, except as otherwise provided in this Agreement;
(2ii) possess Partnership property, or assign any rights in specific Partnership property, for other than a Partnership purpose, purpose except as otherwise provided in this Agreement;
(3iii) admit a Person as a Partner, except as otherwise provided in this Agreement;; or
(4iv) perform any act that would subject a Limited Partner to liability as a general partner in any jurisdiction or any other liability, liability except as provided herein or under the Act; or.
(5) enter into any contract, mortgage, loan or other agreement that prohibits or restricts, or has the effect of prohibiting or restricting, the ability of (a) the General Partner, the Previous 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.
B. The General Partner shall not, without the prior Consent of the Limited Partners, undertake, on behalf of the Partnership, any of the following actions or enter into any transaction that which would have the effect of such transactionsactions:
(1i) except as provided in Section 7.3C hereof7.3(e), amend, modify or terminate this Agreement other than to reflect the admission, substitution, termination or withdrawal of Partners partners pursuant to Article 11 or Article 12 hereof;
(2ii) make a general assignment for the benefit of creditors or appoint or acquiesce in the appointment of a custodian, receiver or trustee for all or any part substantially all of the assets of the Partnership;
(3iii) institute any proceeding for bankruptcy on behalf of the Partnership; or
(4iv) subject to confess a judgment against the rights Partnership.
(c) The General Partner shall not, without the prior Consent of Transfer provided in Sections 11.1C and 11.2 hereofthe Super Majority Limited Partners, undertake, on behalf of the Partnership, any of the following actions or enter into any transaction which would have the effect of such actions:
(i) approve or acquiesce to the Transfer transfer of the Partnership Interest of the General Partner to any Person other than the Partnership or an Affiliate of the General Partner, or ; or
(ii) admit into the Partnership any additional Additional or successor Substitute General Partners, other than Affiliates of the General Partner.
C. (d) Notwithstanding Section 7.3B Sections 7.3(b), and 7.3(c) hereof, the General Partner shall have the power, without the Consent of the Limited Partners, exclusive power to amend this Agreement as may be required to facilitate or implement any of the following purposes:
(1i) to add to the obligations of the General Partner or surrender any right or power granted to the General Partner or any Affiliate of the General Partner for the benefit of the Limited Partners;
(2ii) to reflect the issuance of additional Partnership Interests pursuant to Section 4.2, 4.3(c) or 4.4 or the admission, substitution substitution, termination, or withdrawal of Partners or the termination of the Partnership in accordance with this Agreement, and to amend Exhibits A and C in connection with such admission, substitution or withdrawal;
(3iii) to reflect a change that is of an inconsequential nature and does not adversely affect the Limited Partners in any material respect, or to cure any ambiguity, correct or supplement any provision in this Agreement not inconsistent with law or with other provisions, or make other changes with respect to matters arising under this Agreement that will not be inconsistent with law or with the provisions of this Agreement;
(4iv) to satisfy any requirements, conditions conditions, or guidelines contained in any order, directive, opinion, ruling or regulation of a federal or state agency or contained in federal or state law;
(5) (av) to reflect such changes as are reasonably necessary (i) for the General Partner or any other wholly owned subsidiary of a Special Limited Partner, as the case may be, Company to maintain its status as a “qualified REIT subsidiary” REIT, including changes which may be necessitated due to a change in applicable law (within the meaning of Code Section 856(i)(2)or an authoritative interpretation thereof) or a ruling of the IRS; and
(ii) for any Special Limited Partner to maintain its status as a REIT or to satisfy the REIT Requirements; (bvi) to reflect the Transfer of all or any part of a Partnership Interest among the General Partnermodify, the Special Limited Partners or any “qualified REIT subsidiary” (within the meaning of Code Section 856(i)(2)) with respect to any Special Limited Partner;
(6) to modify the manner in which Capital Accounts are computed (but only to the extent as set forth in the definition of “Capital Account,” or contemplated by the Code or the Regulations); and
(7) the issuance of additional Partnership Interests manner in accordance with Section 4.2which Capital Accounts are computed. The General Partner will provide notice to the Limited Partners when any action under this Section 7.3C 7.3(d) is taken.
D. (e) Notwithstanding Sections 7.3B 7.3(b), 7.3(c) and 7.3C 7.3(d) hereof, this Agreement shall not be amendedamended with respect to any Partner adversely affected, and no action may be taken by the General Partner, without the Consent of each such Partner adversely affected, affected if such amendment or action would (i) convert a Limited Partner Interest Partner’s interest in the Partnership into a General Partner Interest general partner’s interest (except as a the result of the General Partner acquiring such Partnership Interestinterest), (ii) modify the limited liability of a Limited Partner, (iii) alter the rights of any the Partner to receive the distributions to which such Partner is entitled, pursuant to Article 5 or Section 13.2A(4) hereof13.2(a)(i), or alter the allocations specified in Article 6 hereof (except, in any case, except as permitted pursuant to Sections 4.2 Section 4.2, 4.3 and 7.3C Section 7.3(d)(iii) hereof), (iv) materially alter or modify the rights to a Redemption rights, Cash Amount or the REIT Shares Amount as set forth in Sections 8.6 Section 8.6, and 11.2 hereof, or amend or modify any related definitions, definitions hereof or (v) amend this Section 7.3D; provided, however, that the Consent of each Partner adversely affected shall not be required for any amendment or action that affects all Partners holding the same class or series of Partnership Units on a uniform or pro rata basis7.3(e). Further, no amendment may alter the restrictions on the General Partner’s authority set forth elsewhere in this Section 7.3 without the Consent specified thereinin such section. Any such amendment or In addition, notwithstanding Sections 7.3(b), 7.3(c) and 7.3(e) hereof, Section 11.2 of this Agreement shall not be amended, and no action consented to by any Partner in contravention of Section 11.2 hereof shall be taken, without the Consent of the Limited Partners. This Section 7.3(e) does not require unanimous consent of all Partners adversely affected unless the amendment is to be effective as to that Partner, notwithstanding the absence of such consent by any other Partneragainst all Partners adversely affected.
Appears in 1 contract
Samples: Limited Partnership Agreement (Parkway Properties Inc)
Restrictions on General Partner’s Authority. A. The General Partner may not take any action in contravention of this Agreement, including, without limitation:
(1) take any action that would make it impossible to carry on the ordinary business of the Partnership, except as otherwise provided in this Agreement;
(2) possess Partnership property, or assign any rights in specific Partnership property, for other than a Partnership purpose, except as otherwise provided in this Agreement;
(3) admit admitting a Person as a Partner, except as otherwise provided in this Agreement;
(43) perform 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 herein or under the Act; or;
(54) enter entering into any contract, mortgage, loan or other agreement that expressly prohibits or restricts, or has the effect of prohibiting or restricting, the ability of restricts (a) the General Partner, the Previous General Special Limited Partner or the Partnership from satisfying performing its specific obligations under Section 8.6 15.1 hereof in full or (b) a Limited Partner from exercising its rights under Section 8.6 15.1 hereof to effect a Redemption in fullRedemption, except, in either case, with the written consent of such Limited Partner affected by the prohibition or restriction.
B. The General Partner shall not, without the prior Consent of the Limited Partners, undertake, undertake on behalf of the Partnership, any of the following actions or enter into any transaction that would have the effect of, any of such transactionsthe following actions:
(1) except as provided in Section 7.3C 7.3.C hereof, amend, modify or terminate this Agreement other than to reflect the admission, substitution, termination or withdrawal of Partners pursuant to Article 11 or Article 12 hereofAgreement;
(2) except as otherwise permitted by this Agreement, or in connection with a Termination Transaction effected in accordance with Section 11.7, Transfer any portion of the Partnership Interest of the General Partner or admit into the Partnership any additional or successor General Partner;
(3) except as otherwise permitted by this Agreement, or in connection with a Termination Transaction effected in accordance with Section 11.7, voluntarily withdraw as a general partner of the Partnership;
(4) make a general assignment for the benefit of creditors or appoint or acquiesce in the appointment of a custodian, receiver or trustee for all or any part of the assets of the Partnership;
(35) institute any proceeding for bankruptcy on behalf of the Partnership;
(6) a merger or consolidation of the Partnership with or into any other Person, or a conversion of the Partnership into any other entity, other than in connection with a Termination Transaction effected in accordance with Section 11.7; or
(47) a sale, lease, exchange or other transfer of all or substantially all of the assets of the Partnership not in the ordinary course of business, whether in a single transaction or a series of related transactions, other than in connection with a Termination Transaction effected in accordance with Section 11.7; provided, however, with respect to items B(1), B(2), B(3), B(6) and B(7), for so long as CBI, together with its Controlled Entities, holds at least 20% of the outstanding Partnership Common Units held by all Partners, the Consent of CBI shall also be required.
C. Notwithstanding Section 7.3.B hereof but subject to the rights of Transfer provided in Sections 11.1C and 11.2 hereof, approve or acquiesce to the Transfer any Holder of the any Partnership Interest of the General Partner, or admit into the set forth in a Partnership any additional or successor General Partners.
C. Notwithstanding Unit Designation and Section 7.3B hereof7.3.D, the General Partner shall have the power, without the Consent of the Partners or the consent or approval of any Limited PartnersPartner, to amend this Agreement as may be required to facilitate or implement any of the following purposes:
(1) to add to the obligations of the General Partner or surrender any right or power granted to the General Partner or any Affiliate of the General Partner for the benefit of the Limited Partners;
(2) to reflect the admission, substitution or withdrawal of Partners Partners, the Transfer of any Partnership Interest or the termination of the Partnership in accordance with this Agreement, and to amend Exhibits A and C the Register in connection with such admission, substitution substitution, withdrawal or withdrawalTransfer;
(3) to reflect a change that is of an inconsequential nature and or does not adversely affect the Limited Partners in any material respect, or to cure any ambiguity, correct or supplement any provision in this Agreement not inconsistent with law or with other provisions, or make other changes with respect to matters arising under this Agreement that will not be inconsistent with law or with the provisions of this Agreement;
(4) to satisfy any requirements, conditions or guidelines contained in any order, directive, opinion, ruling or regulation of a federal Federal or state agency or contained in federal Federal or state law;
(5) (a) to reflect such changes as are reasonably necessary (i) for the General Partner or any other wholly owned subsidiary of a Special Limited Partner, as the case may be, to maintain its status as a “qualified REIT subsidiary” (within the meaning of Code Section 856(i)(2)) or (ii) for any Special Limited Partner to maintain its status as a REIT or to satisfy the REIT Requirements; (b) to reflect the Transfer of all or any part of a Partnership Interest among the General Partner, the Special Limited Partners or any “qualified REIT subsidiary” (within the meaning of Code Section 856(i)(2)) with respect to any Special Limited Partner;
(6) to modify either or both of the manner in which items of Net Income or Net Loss are allocated pursuant to Article 6 or the manner in which Capital Accounts are computed adjusted, computed, or maintained (but in each case only to the extent set forth in the definition of “Capital Account” or Section 5.5 or as contemplated by the Code or the Regulations); and;
(7) to reflect the issuance of additional Partnership Interests in accordance with Article 4;
(8) to set forth or amend the designations, preferences, conversion or other rights, voting powers, restrictions, limitations as to distributions, qualifications or terms or conditions of redemption of any additional Partnership Units issued pursuant to Article 4;
(9) if the Partnership is the Surviving Partnership in any Termination Transaction, to modify Section 4.2. The General 15.1 or any related definitions to provide the holders of interests in such Surviving Partnership rights that are consistent with Section 11.7.A(ii)(v); and
(10) to reflect any other modification to this Agreement as is reasonably necessary for the business or operations of the Partnership or the Special Limited Partner will provide notice to the Limited Partners when any action under this and which does not violate Section 7.3C is taken.7.3.D.
D. Notwithstanding Sections 7.3B 7.3.B, 7.3.C and 7.3C Article 14 hereof, this Agreement shall not be amended, and no action may be taken by the General Partner, without the Consent consent of each Partner Partner, if any, adversely affectedaffected thereby, if such amendment or action would (i) convert a Limited Partner Interest in into a general partner of the Partnership into a General Partner Interest (except as a result of the Limited Partner becoming the General Partner acquiring such Partnership Interestpursuant to Section 12.1 or 13.1.A of this Agreement), (ii) modify the limited liability of a Limited Partner, (iii) adversely alter the rights of any Partner to receive the distributions to which such Partner is entitled, entitled pursuant to Article 5 or Section 13.2A(413.2.A(4) hereof, or alter the allocations specified in Article 6 hereof (except, in any case, as permitted pursuant to Sections 4.2 4.2, 5.5 and 7.3C 7.3.C hereof), (iv) alter or modify in a manner that adversely affects any Partner the Redemption rights, Cash Amount or REIT Shares Amount as set forth in Sections 8.6 and 11.2 Section 15.1 hereof, or amend or modify any related definitionsdefinitions (except for amendments to this Agreement or other actions that provide rights consistent with Section 11.7.A(ii)(v)), or (v) amend this Section 7.3D7.3.D; provided, however, that the Consent consent of each any individual Partner adversely affected shall not be required for any amendment or action that affects all Partners holding the same class or series of Partnership Units on a uniform or pro rata basis, if approved by a Majority in Interest of the Partners of such class or series. Except as provided in Section 8.9.E, no amendment to Section 8.9 of this Agreement, and no amendment to this Agreement that is inconsistent with the provisions of Section 8.9, shall be made without the prior written consent of CBI. Further, no amendment may alter the restrictions on the General Partner’s authority set forth elsewhere in this Section 7.3 without the Consent consent specified therein. Any such amendment or action consented to by any Partner shall be effective as to that Partner, notwithstanding the absence of such consent by any other Partner.
E. Notwithstanding any provision in this Agreement to the contrary, for so long as CBI or any of its Controlled Entities owns any Partnership Interest, Section 8.8 of this Agreement shall not be amended or waived without the prior written consent of CBI, nor shall this Agreement be modified in any manner that would have the effect of eliminating the consent rights of this Section 7.3E.
Appears in 1 contract
Restrictions on General Partner’s Authority. A. The General Partner may not take any action in contravention of this Agreement, including, without limitation:
(1) take any action that would make it impossible to carry on the ordinary business of the Partnership, except as otherwise provided in this Agreement;
(2) possess Partnership property, or assign any rights in specific Partnership property, for other than a Partnership purpose, except as otherwise provided in this Agreement;
(3) admit admitting a Person as a Partner, except as otherwise provided in this Agreement;
(43) perform 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 herein or under the Act; or;
(54) enter entering into any contract, mortgage, loan or other agreement that expressly prohibits or restricts, or has the effect of prohibiting or restricting, the ability of restricts (a) the General Partner, the Previous General Special Limited Partner or the Partnership from satisfying performing its specific obligations under Section 8.6 15.1 hereof in full or (b) a Limited Partner from exercising its rights under Section 8.6 15.1 hereof to effect a Redemption in fullRedemption, except, in either case, with the written consent of such Limited Partner affected by the prohibition or restriction.
B. The General Partner shall not, without the prior Consent of the Limited Partners, undertake, undertake on behalf of the Partnership, any of the following actions or enter into any transaction that would have the effect of, any of such transactionsthe following actions:
(1) except as provided in Section 7.3C 7.3.C hereof, amend, modify or terminate this Agreement other than to reflect the admission, substitution, termination or withdrawal of Partners pursuant to Article 11 or Article 12 hereofAgreement;
(2) except as otherwise permitted by this Agreement, or in connection with a Termination Transaction effected in accordance with Section 11.7, Transfer any portion of the Partnership Interest of the General Partner or admit into the Partnership any additional or successor General Partner;
(3) except as otherwise permitted by this Agreement, or in connection with a Termination Transaction effected in accordance with Section 11.7, voluntarily withdraw as a general partner of the Partnership;
(4) make a general assignment for the benefit of creditors or appoint or acquiesce in the appointment of a custodian, receiver or trustee for all or any part of the assets of the Partnership;
(35) institute any proceeding for bankruptcy on behalf of the Partnership;
(6) a merger or consolidation of the Partnership with or into any other Person, or a conversion of the Partnership into any other entity, other than in connection with a Termination Transaction effected in accordance with Section 11.7; or
(47) a sale, lease, exchange or other transfer of all or substantially all of the assets of the Partnership not in the ordinary course of business, whether in a single transaction or a series of related transactions, other than in connection with a Termination Transaction effected in accordance with Section 11.7; provided, however, with respect to items B(1), B(2), B(3), B(6) and B(7), for so long as CBI, together with its Controlled Entities, holds at least 20% of the outstanding Partnership Common Units held by all Partners, the Consent of CBI shall also be required.
C. Notwithstanding Section 7.3.B hereof but subject to the rights of Transfer provided in Sections 11.1C and 11.2 hereof, approve or acquiesce to the Transfer any Holder of the any Partnership Interest of the General Partner, or admit into the set forth in a Partnership any additional or successor General Partners.
C. Notwithstanding Unit Designation and Section 7.3B hereof7.3.D, the General Partner shall have the power, without the Consent of the Partners or the consent or approval of any Limited PartnersPartner, to amend this Agreement as may be required to facilitate or implement any of the following purposes:
(1) to add to the obligations of the General Partner or surrender any right or power granted to the General Partner or any Affiliate of the General Partner for the benefit of the Limited Partners;
(2) to reflect the admission, substitution or withdrawal of Partners Partners, the Transfer of any Partnership Interest or the termination of the Partnership in accordance with this Agreement, and to amend Exhibits A and C the Register in connection with such admission, substitution substitution, withdrawal or withdrawalTransfer;
(3) to reflect a change that is of an inconsequential nature and or does not adversely affect the Limited Partners in any material respect, or to cure any ambiguity, correct or supplement any provision in this Agreement not inconsistent with law or with other provisions, or make other changes with respect to matters arising under this Agreement that will not be inconsistent with law or with the provisions of this Agreement;
(4) to satisfy any requirements, conditions or guidelines contained in any order, directive, opinion, ruling or regulation of a federal Federal or state agency or contained in federal Federal or state lawlaw (collectively, “Legal Requirements”);
(5) (a) to reflect such changes as are reasonably necessary (i) for the General Partner or any other wholly owned subsidiary of a Special Limited Partner, as the case may be, to maintain its status as a “qualified REIT subsidiary” (within the meaning of Code Section 856(i)(2)) or (ii) for any Special Limited Partner to maintain its status as a REIT or to satisfy the REIT Requirements; (b) to reflect the Transfer of all or any part of a Partnership Interest among the General Partner, the Special Limited Partners or any “qualified REIT subsidiary” (within the meaning of Code Section 856(i)(2)) with respect to any Special Limited Partner;
(6) to modify either or both of the manner in which items of Net Income or Net Loss are allocated pursuant to Article 6 or the manner in which Capital Accounts are computed adjusted, computed, or maintained (but in each case only to the extent set forth in the definition of “Capital Account” or Section 5.5 or as contemplated by the Code or the Regulations); and;
(7) to reflect the issuance of additional Partnership Interests in accordance with Article 4;
(8) to set forth or amend the designations, preferences, conversion or other rights, voting powers, restrictions, limitations as to distributions, qualifications or terms or conditions of redemption of any additional Partnership Units issued pursuant to Article 4;
(9) if the Partnership is the Surviving Partnership in any Termination Transaction, to modify Section 4.2. The General 15.1 or any related definitions to provide the holders of interests in such Surviving Partnership rights that are consistent with Section 11.7.A(ii)(v); and
(10) to reflect any other modification to this Agreement as is reasonably necessary for the business or operations of the Partnership or the Special Limited Partner will provide notice to the Limited Partners when any action under this and which does not violate Section 7.3C is taken.7.3.D.
D. Notwithstanding Sections 7.3B 7.3.B, 7.3.C and 7.3C Article 14 hereof, this Agreement shall not be amended, and no action may be taken by the General Partner, without the Consent consent of each Partner Partner, if any, adversely affectedaffected thereby, if such amendment or action would (i) convert a Limited Partner Interest in into a general partner of the Partnership into a General Partner Interest (except as a result of the Limited Partner becoming the General Partner acquiring such Partnership Interestpursuant to Section 12.1 or 13.1. A of this Agreement), (ii) modify the limited liability of a Limited Partner, (iii) adversely alter the rights of any Partner to receive the distributions to which such Partner is entitled, entitled pursuant to Article 5 or Section 13.2A(413.2.A(4) hereof, or alter the allocations specified in Article 6 hereof (except, in any case, as permitted pursuant to Sections 4.2 4.2, 5.5 and 7.3C 7.3.C hereof), (iv) alter or modify in a manner that adversely affects any Partner the Redemption rights, Cash Amount or REIT Shares Amount as set forth in Sections 8.6 and 11.2 Section 15.1 hereof, or amend or modify any related definitionsdefinitions (except for amendments to this Agreement or other actions that provide rights consistent with Section 11.7.A(ii)(v)), or (v) amend this Section 7.3D7.3.D; provided, however, that the Consent consent of each any individual Partner adversely affected shall not be required for any amendment or action that affects all Partners holding the same class or series of Partnership Units on a uniform or pro rata basis, if approved by a Majority in Interest of the Partners of such class or series. Except as provided in Section 8.9.E, no amendment to Section 8.9 of this Agreement, and no amendment to this Agreement that is inconsistent with the provisions of Section 8.9, shall be made without the prior written consent of CBI. Further, no amendment may alter the restrictions on the General Partner’s authority set forth elsewhere in this Section 7.3 without the Consent consent specified therein. Any such amendment or action consented to by any Partner shall be effective as to that Partner, notwithstanding the absence of such consent by any other Partner.
E. Notwithstanding any provision in this Agreement to the contrary, for so long as CBI or any of its Controlled Entities owns any Partnership Interest, Section 8.8 of this Agreement shall not be amended or waived without the prior written consent of CBI, nor shall this Agreement be modified in any manner that would have the effect of eliminating the consent rights of this Section 7.3.E.
Appears in 1 contract
Restrictions on General Partner’s Authority. A. The General Partner may not take any action in contravention of this Agreement, including, without limitation:
(1) take any action that would make it impossible to carry on the ordinary business of the Partnership, except as otherwise provided in this Agreement;
(2) possess Partnership property, or assign any rights in specific Partnership property, for other than a Partnership purpose, except as otherwise provided in this Agreement;
(3) admit admitting a Person as a Partner, except as otherwise provided in this Agreement;
(43) perform 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 herein or under the Act; or;
(54) enter entering into any contract, mortgage, loan or other agreement that expressly prohibits or restricts, or has the effect of prohibiting or restricting, the ability of restricts (a) the General Partner, the Previous General Special Limited Partner or the Partnership from satisfying performing its specific obligations under Section 8.6 15.1 hereof in full or (b) a Limited Partner from exercising its rights under Section 8.6 15.1 hereof to effect a Redemption in fullRedemption, except, in either case, with the written consent of such Limited Partner affected by the prohibition or restriction.
B. The General Partner shall not, without the prior Consent of the Limited Partners, undertake, undertake on behalf of the Partnership, any of the following actions or enter into any transaction that would have the effect of, any of such transactionsthe following actions:
(1) except as provided in Section 7.3C 7.3.C hereof, amend, modify or terminate this Agreement other than to reflect the admission, substitution, termination or withdrawal of Partners pursuant to Article 11 or Article 12 hereofAgreement;
(2) except as otherwise permitted by this Agreement, or in connection with a Termination Transaction effected in accordance with Section 11.7, Transfer any portion of the Partnership Interest of the General Partner or admit into the Partnership any additional or successor General Partner;
(3) except as otherwise permitted by this Agreement, or in connection with a Termination Transaction effected in accordance with Section 11.7, voluntarily withdraw as a general partner of the Partnership;
(4) make a general assignment for the benefit of creditors or appoint or acquiesce in the appointment of a custodian, receiver or trustee for all or any part of the assets of the Partnership;
(35) institute any proceeding for bankruptcy on behalf of the Partnership;
(6) a merger or consolidation of the Partnership with or into any other Person, or a conversion of the Partnership into any other entity, other than in connection with a Termination Transaction effected in accordance with Section 11.7; or
(47) a sale, lease, exchange or other transfer of all or substantially all of the assets of the Partnership not in the ordinary course of business, whether in a single transaction or a series of related transactions, other than in connection with a Termination Transaction effected in accordance with Section 11.7; provided, however, with respect to items B(1), B(2), B(3), B(6) and B(7), for so long as CBI, together with its Controlled Entities, holds at least 20% of the outstanding Partnership Common Units held by all Partners, the Consent of CBI shall also be required.
C. Notwithstanding Section 7.3.B hereof but subject to the rights of Transfer provided in Sections 11.1C and 11.2 hereof, approve or acquiesce to the Transfer any Holder of the any Partnership Interest of the General Partner, or admit into the set forth in a Partnership any additional or successor General Partners.
C. Notwithstanding Unit Designation and Section 7.3B hereof7.3.D, the General Partner shall have the power, without the Consent of the Partners or the consent or approval of any Limited PartnersPartner, to amend this Agreement as may be required to facilitate or implement any of the following purposes:
(1) to add to the obligations of the General Partner or surrender any right or power granted to the General Partner or any Affiliate of the General Partner for the benefit of the Limited Partners;
(2) to reflect the admission, substitution or withdrawal of Partners Partners, the Transfer of any Partnership Interest or the termination of the Partnership in accordance with this Agreement, and to amend Exhibits A and C the Register in connection with such admission, substitution substitution, withdrawal or withdrawalTransfer;
(3) to reflect a change that is of an inconsequential nature and or does not adversely affect the Limited Partners in any material respect, or to cure any ambiguity, correct or supplement any provision in this Agreement not inconsistent with law or with other provisions, or make other changes with respect to matters arising under this Agreement that will not be inconsistent with law or with the provisions of this Agreement;
(4) to satisfy any requirements, conditions or guidelines contained in any order, directive, opinion, ruling or regulation of a federal Federal or state agency or contained in federal Federal or state law;
(5) (a) to reflect such changes as are reasonably necessary (i) for the General Partner or any other wholly owned subsidiary of a Special Limited Partner, as the case may be, to maintain its status as a “qualified REIT subsidiary” (within the meaning of Code Section 856(i)(2)) or (ii) for any Special Limited Partner to maintain its status as a REIT or to satisfy the REIT Requirements; (b) to reflect the Transfer of all or any part of a Partnership Interest among the General Partner, the Special Limited Partners or any “qualified REIT subsidiary” (within the meaning of Code Section 856(i)(2)) with respect to any Special Limited Partner;
(6) to modify either or both of the manner in which items of Net Income or Net Loss are allocated pursuant to Article 6 or the manner in which Capital Accounts are computed adjusted, computed, or maintained (but in each case only to the extent set forth in the definition of “Capital Account” or Section 5.5 or as contemplated by the Code or the Regulations); and;
(7) to reflect the issuance of additional Partnership Interests in accordance with Article 4;
(8) to set forth or amend the designations, preferences, conversion or other rights, voting powers, restrictions, limitations as to distributions, qualifications or terms or conditions of redemption of any additional Partnership Units issued pursuant to Article 4;
(9) if the Partnership is the Surviving Partnership in any Termination Transaction, to modify Section 4.2. The General 15.1 or any related definitions to provide the holders of interests in such Surviving Partnership rights that are consistent with Section 11.7.A(ii)(v); and
(10) to reflect any other modification to this Agreement as is reasonably necessary for the business or operations of the Partnership or the Special Limited Partner will provide notice to the Limited Partners when any action under this and which does not violate Section 7.3C is taken.7.3.D.
D. Notwithstanding Sections 7.3B 7.3.B, 7.3.C and 7.3C Article 14 hereof, this Agreement shall not be amended, and no action may be taken by the General Partner, without the Consent consent of each Partner Partner, if any, adversely affectedaffected thereby, if such amendment or action would (i) convert a Limited Partner Interest in into a general partner of the Partnership into a General Partner Interest (except as a result of the Limited Partner becoming the General Partner acquiring such Partnership Interestpursuant to Section 12.1 or 13.1. A of this Agreement), (ii) modify the limited liability of a Limited Partner, (iii) adversely alter the rights of any Partner to receive the distributions to which such Partner is entitled, entitled pursuant to Article 5 or Section 13.2A(413.2.A(4) hereof, or alter the allocations specified in Article 6 hereof (except, in any case, as permitted pursuant to Sections 4.2 4.2, 5.5 and 7.3C 7.3.C hereof), (iv) alter or modify in a manner that adversely affects any Partner the Redemption rights, Cash Amount or REIT Shares Amount as set forth in Sections 8.6 and 11.2 Section 15.1 hereof, or amend or modify any related definitionsdefinitions (except for amendments to this Agreement or other actions that provide rights consistent with Section 11.7.A(ii)(v)), or (v) amend this Section 7.3D7.3.D; provided, however, that the Consent consent of each any individual Partner adversely affected shall not be required for any amendment or action that affects all Partners holding the same class or series of Partnership Units on a uniform or pro rata basis, if approved by a Majority in Interest of the Partners of such class or series. Except as provided in Section 8.9.E, no amendment to Section 8.9 of this Agreement, and no amendment to this Agreement that is inconsistent with the provisions of Section 8.9, shall be made without the prior written consent of CBI. Further, no amendment may alter the restrictions on the General Partner’s authority set forth elsewhere in this Section 7.3 without the Consent consent specified therein. Any such amendment or action consented to by any Partner shall be effective as to that Partner, notwithstanding the absence of such consent by any other Partner.
E. Notwithstanding any provision in this Agreement to the contrary, for so long as CBI or any of its Controlled Entities owns any Partnership Interest, Section 8.8 of this Agreement shall not be amended or waived without the prior written consent of CBI, nor shall this Agreement be modified in any manner that would have the effect of eliminating the consent rights of this Section 7.3.E.
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