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; NY\5888591.8 (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, the ability of a Limited Partner to exercise its rights to an Exchange in full, except with the written consent of such Limited Partner. B. The General Partner shall not, without the prior Consent of the Class A 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) Except as provided in Section 7.3.C., amend, modify or terminate this Agreement other than to reflect the admission, substitution, termination or withdrawal of partners pursuant to Article 12 hereof or the issuance of Partnership Units or Preferred Units in accordance with the terms of this Agreement. (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. (4) Approve or acquiesce to the transfer of the Partnership Interest of the General Partner to any Person other than the Partnership. (5) Admit into the Partnership any Additional or Substitute General Partners. C. Notwithstanding Section 7.3.B, the General Partner shall have the power, without any consent of any 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, termination, or withdrawal of Partners or the issuance of Partnership Units or Preferred Units in accordance with this Agreement along with any amendments related thereto; or to enter into a merger, consolidation or reorganization of the Partnership that does not require Consent of the Holders of Class A Limited Partnership Units under Section 7.3.E; provided that any such amendment does not eliminate, restrict or modify the exchange rights of the Class A Limited Partners under Section 8.6 for REIT Shares without the Consent of the Class A Limited Partners, unless such merger, consolidation or reorganization satisfies the conditions set forth in clause (i) or (ii) of Section 7.3.E(2)(a); NY\5888591.8 (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) to amend the provisions of this Agreement to protect the qualification of the Initial General Partner as a REIT because of a change in applicable law (or an authoritative interpretation thereof), a ruling of the Internal Revenue Service or if the Initial General Partner has determined to cease qualifying as a REIT; and (6) to modify, as set forth in the definition of “Capital Account,” the manner in which Capital Accounts are computed. The General Partner will provide notice to the Limited Partners when any action under this Section 7.3.C is taken. D. Notwithstanding Section 7.3.B and 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’s interest in the Partnership into a general partner’s interest (except as the result of the General Partner acquiring such interest), (ii) modify the limited liability of a Limited Partner, (iii) alter rights of the Partner to receive distributions pursuant to Article 5 or Section 7.1.A(3), or the allocations specified in Article 6 (except as permitted pursuant to Section 4.5, 4.6, 4.7 and Section 7.3.C(2) or 7.3.C(3) hereof), (iv) alter or modify the rights to an Exchange or REIT Shares Amount as set forth in Section 8.6, and related definitions hereof or (v) amend this Section 7.3.D. 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 in such section. E. The General Partner shall not, without the prior Consent of the Holders of Class A Limited Partnership Units, so long as the Holders of the Class A Common Limited Partnership Units have at least 10% of the aggregate Percentage Interests of the Partnership, on behalf of the Partnership, take any of the following actions: (1) Dissolve the Partnership. (2) Agree to or consummate any merger, consolidation, reorganization or other business combination to which the Partnership is a party; other than a merger, consolidation, reorganization or other business combination (a) which involves a merger, consolidation, reorganization or other business combination of the Initial General Partner in which the Holders of Class A Limited Partnership Units either (i) receive consideration that is cash per Class A Limited Partnership Unit equal to the cash amount received by a holder of one REIT Share in such transaction NY\5888591.8 times the Exchange Factor, or (ii) continue as Holders of Class A Limited Partnership Units and continue to have the exchange rights under Section 8.6 for REIT Shares, or (b) that is for the primary purpose of changing the state of formation of the Partnership and where this Agreement is amended only to reflect such different jurisdiction and any changes due to the law of such jurisdiction. (3) Sell, dispose, convey or otherwise transfer all or substantially all of the assets of the Partnership, in one or a series of transactions (other than a transaction where the Holders of Class A Limited Partnership Units receive consideration that is cash per Class A Limited Partnership Unit equal to the cash amount received by a holder of one REIT Share in such transaction times the Exchange Factor).
Appears in 1 contract
Samples: Limited Partnership Agreement (Tanger Properties LTD Partnership /Nc/)
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; NY\5888591.8;
(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 prohibitingprohibiting 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 to exercise from exercising its rights under Section 8.6 hereof to an Exchange effect a Redemption in full, except except, in either case, with the written consent of such Limited PartnerPartner affected by the prohibition or restriction.
B. The General Partner shall not, without the prior Consent of the Class A Limited Partners, undertake, on behalf of the Partnership, any of the following actions or enter into any transaction which that would have the effect of such transactions:
(1) Except except as provided in Section 7.3.C.7.3C hereof, 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 or the issuance of Partnership Units or Preferred Units in accordance with the terms of this Agreement.hereof;
(2) Make 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 institute any proceeding for Bankruptcy bankruptcy on behalf of the Partnership.; or
(4) Approve subject to the rights of Transfer provided in Sections 11.1C and 11.2 hereof, approve or acquiesce to the transfer Transfer of the Partnership Interest of the General Partner to any Person other than the Partnership.
(5) Admit Partner, or admit into the Partnership any Additional additional or Substitute successor General Partners.
C. Notwithstanding Section 7.3.B7.3B hereof, the General Partner shall have the power, without any consent the Consent of any 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, termination, substitution or withdrawal of Partners or the issuance termination of the Partnership Units or Preferred Units in accordance with this Agreement along Agreement, and to amend Exhibits A and C in connection with any amendments related thereto; such admission, substitution or to enter into a merger, consolidation or reorganization of the Partnership that does not require Consent of the Holders of Class A Limited Partnership Units under Section 7.3.E; provided that any such amendment does not eliminate, restrict or modify the exchange rights of the Class A Limited Partners under Section 8.6 for REIT Shares without the Consent of the Class A Limited Partners, unless such merger, consolidation or reorganization satisfies the conditions set forth in clause (i) or (ii) of Section 7.3.E(2)(a); NY\5888591.8withdrawal;
(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;
(5a) to amend reflect such changes as are reasonably necessary (i) for either the provisions of this Agreement to protect the qualification of the Initial General Partner or 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 the Previous General Partner to maintain its status as a REIT because or to satisfy the REIT Requirements; (b) to reflect the Transfer of all or any part of a change in applicable law Partnership Interest among the Previous General Partner, the General Partner, the Special Limited Partner or any other “qualified REIT subsidiary” (or an authoritative interpretation thereofwithin the meaning of Code Section 856(i)(2), a ruling of ) with respect to the Internal Revenue Service or if the Initial Previous General Partner has determined to cease qualifying as a REIT; andPartner;
(6) to modify, as 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 manner Code or the Regulations); and
(7) the issuance of additional Partnership Interests in which Capital Accounts are computedaccordance with Section 4.2. The General Partner will provide notice to the Limited Partners when any action under this Section 7.3.C 7.3C is taken.
D. Notwithstanding Section 7.3.B Sections 7.3B and 7.3.C 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 affected, if such amendment or action would (i) convert a Limited Partner’s interest Partner Interest in the Partnership into a general partner’s interest General Partner Interest (except as the a result of the General Partner acquiring such interestPartnership Interest), (ii) modify the limited liability of a Limited Partner, (iii) alter the rights of the any Partner to receive the distributions to which such Partner is entitled, pursuant to Article 5 or Section 7.1.A(3)13.2A(4) hereof, or alter the allocations specified in Article 6 hereof (except except, in any case, as permitted pursuant to Section 4.5, 4.6, 4.7 Sections 4.2 and Section 7.3.C(2) or 7.3.C(3) 7.3C hereof), (iv) alter or modify the rights to an Exchange Redemption rights, Cash Amount or REIT Shares Amount as set forth in Section 8.6Sections 8.6 and 11.2 hereof, and or amend or modify any related definitions hereof definitions, or (v) amend this Section 7.3.D. 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 in therein. Any such section.
E. The General amendment or action consented to by any Partner shall notbe effective as to that Partner, without notwithstanding the prior Consent of the Holders of Class A Limited Partnership Units, so long as the Holders of the Class A Common Limited Partnership Units have at least 10% of the aggregate Percentage Interests of the Partnership, on behalf of the Partnership, take any of the following actions:
(1) Dissolve the Partnership.
(2) Agree to or consummate any merger, consolidation, reorganization or other business combination to which the Partnership is a party; other than a merger, consolidation, reorganization or other business combination (a) which involves a merger, consolidation, reorganization or other business combination of the Initial General Partner in which the Holders of Class A Limited Partnership Units either (i) receive consideration that is cash per Class A Limited Partnership Unit equal to the cash amount received by a holder of one REIT Share in such transaction NY\5888591.8 times the Exchange Factor, or (ii) continue as Holders of Class A Limited Partnership Units and continue to have the exchange rights under Section 8.6 for REIT Shares, or (b) that is for the primary purpose of changing the state of formation of the Partnership and where this Agreement is amended only to reflect such different jurisdiction and any changes due to the law absence of such jurisdictionconsent by any other Partner.
(3) Sell, dispose, convey or otherwise transfer all or substantially all of the assets of the Partnership, in one or a series of transactions (other than a transaction where the Holders of Class A Limited Partnership Units receive consideration that is cash per Class A Limited Partnership Unit equal to the cash amount received by a holder of one REIT Share in such transaction times the Exchange Factor).
Appears in 1 contract
Samples: Limited Partnership Agreement (Aimco Properties L.P.)
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:
the written consent of a Majority in Interest of the Outside Limited Partners and may not (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; NY\5888591.8
(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
or (52) enter into any contract, mortgage, loan or other agreement that expressly prohibits or restricts, restricts (a) the General Partner or has the effect of prohibiting, the ability of Partnership from performing its specific obligations under Section 8.06 hereof in full or (b) a Limited Partner to exercise from exercising its rights under Section 8.06 hereof to an Exchange effect a Redemption in full, except except, in either case, with the written consent of such Limited PartnerPartner affected by the prohibition or restriction.
B. (b) The General Partner shall not, without the prior Consent written consent of a Majority in Interest of the Class A Outside 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) Except except as provided in Section 7.3.C.this Agreement, including Sections 4.03(a), 5.06, 6.02(e) and 7.03(c) hereof, amend, modify or terminate this Agreement other than to reflect the admission, substitution, termination or withdrawal of partners pursuant to Article 12 hereof or the issuance of Partnership Units or Preferred Units in accordance with the terms of this Agreement.
(2c) Make a general assignment for the benefit of creditors or appoint or acquiesce in the appointment of a custodianNotwithstanding Sections 7.03(b), 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.
(4) Approve or acquiesce to the transfer of the Partnership Interest of the General Partner to any Person other than the Partnership.
(5) Admit into the Partnership any Additional or Substitute General Partners.
C. Notwithstanding Section 7.3.B8.07 and 14.02 hereof, the General Partner shall have the exclusive power, without any the prior consent of any 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, termination, substitution or withdrawal of Partners or the issuance of Partnership Units or Preferred Units in accordance with this Agreement along Agreement, and to amend Exhibit A in connection with any amendments related thereto; such admission, substitution or to enter into a merger, consolidation or reorganization of the Partnership that does not require Consent of the Holders of Class A Limited Partnership Units under Section 7.3.E; provided that any such amendment does not eliminate, restrict or modify the exchange rights of the Class A Limited Partners under Section 8.6 for REIT Shares without the Consent of the Class A Limited Partners, unless such merger, consolidation or reorganization satisfies the conditions set forth in clause (i) or (ii) of Section 7.3.E(2)(a); NY\5888591.8withdrawal;
(3iii) 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 provisionsprovisions of this Agreement that prohibit such change, 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;
(5a) to amend reflect such changes as are reasonably necessary for the provisions of this Agreement to protect the qualification of the Initial General Partner to maintain or restore its qualification as a REIT because or to satisfy the REIT Requirements; or (b) to reflect the Transfer of all or any part of a change in applicable law (or an authoritative interpretation thereof)Partnership Interest among the General Partner, a ruling of the Internal Revenue Service or if the Initial General Partner has determined to cease qualifying as a REIT; andand any Qualified REIT Subsidiary;
(6vi) to modifymodify either or both the manner in which items of Net Income or Net Loss are allocated pursuant to Article VI hereof or the manner in which Capital Accounts are adjusted, as computed or maintained (but only to the extent set forth in the definition of “Capital Account,” or contemplated by the manner Code or the Regulations);
(vii) to issue additional Partnership Interests in accordance with Section 4.03 hereof and to set forth in this Agreement the designations, rights, powers, duties and preferences of the holders of any additional Partnership Units issued pursuant to this Agreement;; and
(viii) to reflect any other modification to this Agreement as is reasonably necessary for the business or operations of the Partnership or the General Partner and which Capital Accounts are computeddoes not violate Section 7.03(d) hereof. The General Partner will provide notice to the Limited Partners when whenever any action under this Section 7.3.C 7.03(c) is taken.
D. (d) Notwithstanding Section 7.3.B Sections 7.03(b) and 7.3.C 7.03(c) hereof, this Agreement shall not be amended, and no action may be taken by the General Partner, without the Consent consent of each Partner adversely affected thereby, if such amendment or action would (i) convert a Limited Partner’s interest Partner Interest in the Partnership into a general partner’s interest General Partner Interest (except as the a result of the General Partner acquiring such interestPartnership Interest), (ii) modify the limited liability of a Limited Partner, (iii) alter the rights of the any Partner to receive the distributions to which such Partner is entitled, pursuant to Article 5 V hereof or Section 7.1.A(3)13.02(a)(iv) hereof, or alter the allocations specified in Article 6 VI hereof (except except, in any case, as permitted pursuant to Section 4.5Sections 4.03, 4.65.06, 4.7 7.03(c) and Section 7.3.C(2) Article VI hereof or 7.3.C(3) hereofany other provision of this Agreement), (iv) alter or modify the rights to an Exchange Redemption rights, Cash Amount or REIT Shares Amount as set forth in Section 8.68.06 hereof, and or amend or modify any related definitions definitions, (v) alter or modify Section 11.02 hereof or (vvi) amend this Section 7.3.D. 7.03(d). Further, no amendment may alter the restrictions on the General Partner’s authority set forth elsewhere in this Section 7.3 7.03 without the Consent consent specified in therein. Any such section.
E. The General amendment or action consented to by any Partner shall notbe effective as to that Partner, without notwithstanding the prior Consent of the Holders of Class A Limited Partnership Units, so long as the Holders of the Class A Common Limited Partnership Units have at least 10% of the aggregate Percentage Interests of the Partnership, on behalf of the Partnership, take any of the following actions:
(1) Dissolve the Partnership.
(2) Agree to or consummate any merger, consolidation, reorganization or other business combination to which the Partnership is a party; other than a merger, consolidation, reorganization or other business combination (a) which involves a merger, consolidation, reorganization or other business combination of the Initial General Partner in which the Holders of Class A Limited Partnership Units either (i) receive consideration that is cash per Class A Limited Partnership Unit equal to the cash amount received by a holder of one REIT Share in such transaction NY\5888591.8 times the Exchange Factor, or (ii) continue as Holders of Class A Limited Partnership Units and continue to have the exchange rights under Section 8.6 for REIT Shares, or (b) that is for the primary purpose of changing the state of formation of the Partnership and where this Agreement is amended only to reflect such different jurisdiction and any changes due to the law absence of such jurisdictionconsent by any other Partner.
(3) Sell, dispose, convey or otherwise transfer all or substantially all of the assets of the Partnership, in one or a series of transactions (other than a transaction where the Holders of Class A Limited Partnership Units receive consideration that is cash per Class A Limited Partnership Unit equal to the cash amount received by a holder of one REIT Share in such transaction times the Exchange Factor).
Appears in 1 contract
Samples: Agreement of Limited Partnership (Schottenstein Realty 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:
(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; NY\5888591.8;
(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, the ability of a Limited Partner to exercise its rights set forth herein to effect an Exchange in full, except with the written consent of such Limited Partner.
B. The General Partner shall not, without the prior Consent of the Class A 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) Except as provided in Section 7.3.C., 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 or the issuance of Partnership Units or Preferred Units in accordance with the terms of this Agreement.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 bankruptcy on behalf of the Partnership.;
(4) Approve or acquiesce to the transfer of the Partnership Interest of the General Partner to Partner, or admit into the Partnership any Person other than the Partnership.additional or substitute General Partners; or
(5) Admit into Cause the Partnership to loan money to the General Partner or any Additional of its Affiliates at an interest rate below the Prime Rate or Substitute in an aggregate outstanding principal amount that, when taken together with all such loans to the General PartnersPartner and any of its Affiliates, exceeds Twenty Million Dollars ($20,000,000).
C. Notwithstanding Section 7.3.B, the General Partner shall have the power, without any consent the Consent of any 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 Section 4.3, to reflect the admission, substitution, termination, or withdrawal of Partners or the issuance of Partnership Units or Preferred Units in accordance with this Agreement along with any amendments related thereto; and to amend Exhibit A in connection therewith, and to reflect the reduction, exchange or to enter into a merger, consolidation or reorganization redemption of the Partnership that does not require Consent of the Holders of Class A Limited Partnership Units under outstanding pursuant to Section 7.3.E; provided that any such amendment does not eliminate5.6, restrict or modify the exchange rights of the Class A Limited Partners under Section 8.6 for REIT Shares without the Consent of the Class A Limited Partners, unless such merger, consolidation or reorganization satisfies the conditions set forth in clause (i) or (ii) of Section 7.3.E(2)(a); NY\5888591.811.6 hereof and as otherwise permitted by this Agreement;
(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) to amend the provisions of this Agreement reflect such changes as are reasonably necessary for Parent to protect the qualification of the Initial General Partner as a REIT because of a change in applicable law (or an authoritative interpretation thereof), a ruling of the Internal Revenue Service or if the Initial General Partner has determined to cease qualifying maintain status as a REIT; and
(6) to modify, as modify the manner in which Capital Accounts are computed but only to the extent set forth in the definition of “Capital Account,.” the manner in which Capital Accounts are computed. The General Partner will provide notice to the Limited Partners when any action under this Section 7.3.C is taken.
D. Notwithstanding Section 7.3.B and 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’s interest in the Partnership into a general partner’s interest (except as the result of the General Partner acquiring such interest), (ii) modify the limited liability of a Limited Partner, (iii) alter rights of the Partner to receive distributions pursuant to Article 5 or Section 7.1.A(3)5, or the allocations specified in Article 6 (except as permitted pursuant to Section 4.5, 4.6, 4.7 and Section 7.3.C(2) or 7.3.C(3) hereof7.3.C), (iv) alter or modify the rights to an right of Exchange or REIT Shares Amount as set forth in Section 8.6, and related definitions hereof thereof, (v) cause the termination of the Partnership prior to the time set forth in Sections 2.5 or 13.1, or (vvi) amend this Section 7.3.D. 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 in such section. Any such amendment or action consented to by any Limited Partner shall be effective as to that Limited Partner, notwithstanding the absence of such consent by any other Limited Partner.
E. The At any time that the Partnership Interests of all of the Limited Partners of the Partnership equal, in the aggregate, not less than ten percent (10%), the General Partner shall not, without the prior Consent of the Holders of Class A Limited Partnership UnitsPartners, so long as the Holders of the Class A Common Limited Partnership Units have at least 10% of the aggregate Percentage Interests of the Partnershipundertake, on behalf of the Partnership, take any of the following actions:
(1) Dissolve the Partnership.
(2) Agree to or consummate any merger, consolidation, reorganization or other business combination to which the Partnership is a party; other than a merger, consolidation, reorganization or other business combination in each case resulting in the disposition by the then Limited Partners and Assignees of all outstanding Limited Partnership Units in consideration for (a) which involves a mergercash, consolidation, reorganization (b) debt instruments or other business evidences of indebtedness, (c) other securities issued by a corporation, partnership or other entity, other than (i) Parent, (ii) the General Partner, (iii) the Partnership or (iv) any entity at least 80% of the total assets of which (on the basis of market value) are comprised of assets which, immediately prior to such transaction, were assets of the Partnership, or (d) any combination of the Initial General Partner consideration described in which the Holders of Class A Limited Partnership Units either (i) receive consideration that is cash per Class A Limited Partnership Unit equal to the cash amount received by a holder of one REIT Share in such transaction NY\5888591.8 times the Exchange Factora), or (ii) continue as Holders of Class A Limited Partnership Units and continue to have the exchange rights under Section 8.6 for REIT Shares, or (b) that is for the primary purpose of changing the state of formation of the Partnership and where this Agreement is amended only to reflect such different jurisdiction and any changes due to the law of such jurisdictionand/or (c) above.
(3) Sell, dispose, convey Sell or otherwise transfer all or substantially all of the assets of the Partnership, in one or a series of transactions (other than a transaction where the Holders of Class A Limited Partnership Units receive consideration that is cash per Class A Limited Partnership Unit equal to the cash amount received by a holder of one REIT Share in such transaction times the Exchange Factor).
Appears in 1 contract
Samples: Agreement of Limited Partnership (Pan Pacific Retail Properties Inc)
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 except as otherwise provided in this Agreement;
(3) admit admitting a Person as a Partner, except as otherwise provided in this Agreement; NY\5888591.8;
(4) 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
(5) enter entering into any contract, mortgage, loan or other agreement that expressly prohibits or restricts, restricts the Company or has the effect of prohibiting, Partnership from performing their respective obligations under this Agreement in connection with a Redemption or prohibits or restricts the ability of a Limited Partner to exercise its rights to an Exchange a Redemption in full, except with the written consent of such Limited Partner.
B. The General Partner shall not, without Without the prior Consent of the Class A 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 which would have the effect of such transactionspermit:
(1) Except 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 7.3.C.8.6 or restricts the ability of a Limited Partner to exercise its rights of Redemption in full without the written consent of such Limited Partner;
(iv) except as explicitly permitted under Section 7.3C, amendany amendment, modify modification or terminate termination of this Agreement Agreement;
(v) any other direct or indirect transfer of all or any portion of the General Partner’s Partnership Interest, other than to reflect the admission, substitution, termination or withdrawal of partners pursuant to Article 12 hereof or the issuance of Partnership Units or Preferred Units and in accordance with the terms of this Agreement.Section 11.2;
(2vi) Make a 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 bankruptcy by or on behalf of the General Partner or the Partnership.
(4ix) Approve the confession of a judgment against the General Partner or acquiesce to the transfer Partnership;
(x) the adoption of the Partnership Interest any plan of liquidation or dissolution of the General Partner to any Person other than or the Partnership.;
(5xi) Admit any change in any election relating to the 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 a Successor General Partner, except pursuant to and in accordance with Article XI or Article XII;
(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 Additional 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 Substitute 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 PartnersPartner, including, without limitation, the REIT Shares; or
(iii) a Change of Control of the Partnership or 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 merger, consolidation, conversion or other combination or extraordinary transaction involving the Partnership.
C. Notwithstanding Section 7.3.B7.3B, the General Partner shall have the power, without any consent of any 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 the obligations of Section 4.3C, including without limitation by revising Article V and Article VI as the General Partner determines is necessary or surrender any right or power granted desirable to reflect the General Partner or any Affiliate issuance of the General Partner for the benefit of the Limited Partners;
(2) to reflect additional Partnership Interests, or the admission, substitution, termination, termination or withdrawal of Partners or the issuance of Partnership Units or Preferred Units in accordance with this Agreement along with any amendments related thereto; or to enter into a merger, consolidation or reorganization of the Partnership that does not require Consent of the Holders of Class A Limited Partnership Units under Section 7.3.E; provided that any such amendment does not eliminate, restrict or modify the exchange rights of the Class A Limited Partners under Section 8.6 for REIT Shares without the Consent of the Class A Limited Partners, unless such merger, consolidation or reorganization satisfies the conditions set forth in clause (i) or (ii) of Section 7.3.E(2)(a); NY\5888591.8Articles XI and XII;
(32) 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, 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;
(54) to amend reflect such changes necessary for the provisions of this Agreement to protect the qualification of the Initial General Partner as a to satisfy the REIT because of Requirements, including changes which may be necessitated due to a change in applicable law (or an authoritative interpretation thereof), ) or a ruling of the Internal Revenue Service or if the Initial General Partner has determined to cease qualifying as a REITIRS; and
(65) to modify, as set forth in the definition of “Capital Account,” the manner in which Capital Accounts are computed. The General Partner will provide notice to the Limited Partners when prior to taking any action under this Section 7.3.C is taken.7.3C.
D. Notwithstanding Section 7.3.B 7.3B and 7.3.C hereofSection 7.3C, 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 if such amendment or action would (i) convert a Limited Partner’s interest in the Partnership into a general partner’s interest (except as the result of the General Partner acquiring such interest), (ii) modify the limited liability of a Limited Partner, (iii) alter rights of the Partner to receive distributions pursuant to Article 5 V or Section 7.1.A(3), 13.2A(4) or the allocations specified in Article 6 VI (except as permitted pursuant to Section 4.5, 4.6, 4.7 4.3 and Section 7.3.C(2) or 7.3.C(3) hereof7.3C(3)), (iv) materially alter or modify the rights to an Exchange of Redemption or the REIT Shares Amount as set forth in Section 8.6, and related definitions hereof thereof or (v) amend this Section 7.3.D. 7.3D; provided, that if all holders of Partnership Units of the same class or series 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 in such section. This Section 7.3D does not require unanimous consent of all Partners adversely affected unless the amendment is to be effective against all Partners adversely affected.
E. The General Partner shall not, without the prior Consent of the Holders of Class A Limited Partnership Units, so long as the Holders of the Class A Common Limited Partnership Units have at least 10% of the aggregate Percentage Interests of the Partnership, on behalf of the Partnership, take any of the following actions:
(1) Dissolve the Partnership.
(2) Agree to or consummate any merger, consolidation, reorganization or other business combination to which the Partnership is a party; other than a merger, consolidation, reorganization or other business combination (a) which involves a merger, consolidation, reorganization or other business combination of the Initial General Partner in which the Holders of Class A Limited Partnership Units either (i) receive consideration that is cash per Class A Limited Partnership Unit equal to the cash amount received by a holder of one REIT Share in such transaction NY\5888591.8 times the Exchange Factor, or (ii) continue as Holders of Class A Limited Partnership Units and continue to have the exchange rights under Section 8.6 for REIT Shares, or (b) that is for the primary purpose of changing the state of formation of the Partnership and where this Agreement is amended only to reflect such different jurisdiction and any changes due to the law of such jurisdiction.
(3) Sell, dispose, convey or otherwise transfer all or substantially all of the assets of the Partnership, in one or a series of transactions (other than a transaction where the Holders of Class A Limited Partnership Units receive consideration that is cash per Class A Limited Partnership Unit equal to the cash amount received by a holder of one REIT Share in such transaction times the Exchange Factor).
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 an express prohibition or limitation of this AgreementAgreement without the Consent of the Limited Partners, includingand may not, 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; NY\5888591.8
(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;
(53) enter into any contract, mortgage, loan or other agreement that expressly prohibits or restricts, restricts (a) the General Partner or has the effect of prohibiting, the ability of Partnership from performing its specific obligations under Section 15.1 hereof in full or (b) a Limited Partner to exercise from exercising its rights under Section 15.1 hereof to an Exchange effect a Redemption in full, except except, in either case, (x) such contractual restrictions that limit or prevent the General Partner from paying any Redemption under Section 15.1 in cash but which do not limit or prevent the General Partner from paying any Redemption under Section 15.1 with the written consent REIT Shares Amount, or (y) with the Consent of such each Limited Partner affected by the prohibition or restriction;
(4) withdraw from the Partnership or Transfer any portion of the General Partners’ interest other than as expressly provided for in this Agreement; or
(5) be relieved of the General Partner’s obligations under this Agreement following any Transfer of the General Partner’s Partnership Interest permitted by this Agreement.
B. The Except as provided in Section 7.3.C and 6.2.C hereof or as may be otherwise expressly provided for in this Agreement, the General Partner shall not, without the prior Consent of the Class A 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) Except as provided in Section 7.3.C., amend, modify or terminate this Agreement other than to reflect the admission, substitution, termination or withdrawal of partners pursuant to Article 12 hereof or the issuance of Partnership Units or Preferred Units in accordance with the terms of this Agreement.
(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.
(4) Approve or acquiesce C. Subject to the transfer rights of the any Holder of any Partnership Interest of the General Partner to any Person other than the Partnership.
(5) Admit into the set forth in a Partnership any Additional or Substitute General Partners.
C. Notwithstanding Section 7.3.BUnit Designation, the General Partner shall have the power, without any consent the Consent of any 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 issuance of addition Partnership Units in accordance with the terms of this Agreement, the admission, substitution, termination, termination or withdrawal of Partners or Partners, the issuance Transfer of any Partnership Units or Preferred Units Interest in accordance with this Agreement along Agreement, and to amend Exhibit A in connection with any amendments related thereto; such admission, substitution, withdrawal or to enter into a merger, consolidation or reorganization of the Partnership that does not require Consent of the Holders of Class A Limited Partnership Units under Section 7.3.E; provided that any such amendment does not eliminate, restrict or modify the exchange rights of the Class A Limited Partners under Section 8.6 for REIT Shares without the Consent of the Class A Limited Partners, unless such merger, consolidation or reorganization satisfies the conditions set forth in clause (i) or (ii) of Section 7.3.E(2)(a); NY\5888591.8Transfer;
(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 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 the Holders of any additional Partnership Interests issued pursuant to Article 4, including, without limitation, amending Articles V, VI, VIII and XIII hereof, to appropriately reflect the distributions, allocations, partnership rights and rights upon liquidation (including any preference, priority or subordination thereof) of the additional Partnership Interests so issued in accordance with the terms thereof;
(5) to reflect any change to the Partnership Unit Designation for the Series A Preferred Units, or the terms of the Series A Preferred Units or any change corresponding to an amendment, waiver or modification of the REIT Series A Preferred Shares or the Series A Articles Supplementary made in accordance with the terms thereof..
(6) 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;
(57) (a) to amend reflect such changes as are reasonably necessary for the provisions of this Agreement to protect the qualification of the Initial General Partner to maintain its status as a REIT because or to satisfy the REIT Requirements, (b) to reflect the Transfer of all or any part of a change in applicable law Partnership Interest among the General Partner and any Disregarded Entity with respect to the General Partner or (c) to ensure that the Partnership will not be classified as a “publicly traded partnership” under Code Section 7704;
(8) to modify either or an authoritative interpretation thereof), a ruling both of the Internal Revenue Service manner in which items of Net Income or if the Initial General Partner has determined Net Loss are allocated pursuant to cease qualifying as a REIT; and
(6) to modify, as set forth in the definition of “Capital Account,” Article VI or the manner in which Capital Accounts are adjusted, computed. The , or maintained (but in each case only to the extent otherwise provided in this Agreement and as may be permitted under applicable law); and
(9) to reflect any other modification to this Agreement as is reasonably necessary for the business or operations of the Partnership or the General Partner will provide notice to the Limited Partners when any action under this and which does not violate Section 7.3.C is taken.7.3.D.
D. Notwithstanding Section 7.3.B Sections 7.3.B, 7.3.C, 6.2.C, 5.5 and 7.3.C 14.2 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 thereby, if such amendment or action would (i) convert a Limited Partner’s interest Partner Interest in the Partnership into a general partner’s interest General Partner Interest (except as the a result of the General Partner acquiring such interestPartnership Interest), (ii) modify the limited liability of a Limited PartnerPartner so as to increase the liability of such Limited Partner to the liabilities of the Partnership except to the extent required by law, (iii) adversely alter the rights of the any Partner to receive the distributions to which such Partner is entitled pursuant to Article 5 or Section 7.1.A(3)13.2.A(4) hereof, or alter the allocations specified in Article 6 hereof (except except, in any case, as expressly permitted pursuant to Section 4.5Sections 4.2, 4.65.5, 4.7 7.3.C and Section 7.3.C(2) or 7.3.C(3) Article 6 hereof), (iv) adversely alter or modify the rights to an Exchange Redemption rights, Cash Amount or REIT Shares Amount as set forth in Section 8.615.1 hereof, and or amend or modify any related definitions hereof or in a manner adverse to a Limited Partner seeking to exercise such rights, (v) alter or modify Section 11.2 hereof, (vi) reduce any Limited Partner’s rights to indemnification; (vii) create any liability of any Limited Partner not already provided in this Agreement; (viii) amend Section 8.7 other than in accordance with its terms or with the Consent of a Majority in Interest of the Carlyle Nominating Limited Partners; (ix) amend this Section 7.3.D. 7.3.D or (x) admit any Person as a general partner of the Partnership other than in accordance with Section 12.1. 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 in herein. Any such section.
E. The General amendment or action consented to by any Partner shall notbe effective as to that Partner, without notwithstanding the prior Consent of the Holders of Class A Limited Partnership Units, so long as the Holders of the Class A Common Limited Partnership Units have at least 10% of the aggregate Percentage Interests of the Partnership, on behalf of the Partnership, take any of the following actions:
(1) Dissolve the Partnership.
(2) Agree to or consummate any merger, consolidation, reorganization or other business combination to which the Partnership is a party; other than a merger, consolidation, reorganization or other business combination (a) which involves a merger, consolidation, reorganization or other business combination of the Initial General Partner in which the Holders of Class A Limited Partnership Units either (i) receive consideration that is cash per Class A Limited Partnership Unit equal to the cash amount received by a holder of one REIT Share in such transaction NY\5888591.8 times the Exchange Factor, or (ii) continue as Holders of Class A Limited Partnership Units and continue to have the exchange rights under Section 8.6 for REIT Shares, or (b) that is for the primary purpose of changing the state of formation of the Partnership and where this Agreement is amended only to reflect such different jurisdiction and any changes due to the law absence of such jurisdictionconsent by any other Partner.
(3) Sell, dispose, convey or otherwise transfer all or substantially all of the assets of the Partnership, in one or a series of transactions (other than a transaction where the Holders of Class A Limited Partnership Units receive consideration that is cash per Class A Limited Partnership Unit equal to the cash amount received by a holder of one REIT Share in such transaction times the Exchange Factor).
Appears in 1 contract
Samples: Limited Partnership Agreement (CoreSite Realty 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 a Person as a Partner, except as otherwise provided in this Agreement; NY\5888591.8;
(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 prohibitingprohibiting or restricting, the ability of a Limited Partner to exercise its rights to an Exchange a Redemption in full, except with the written consent of such Limited Partner.
B. The General Partner shall not, without the prior Consent of the Class A 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 which would have the effect of such transactions:
(1) except as provided in Section 7.3.E, amend, modify or terminate this Agreement other than to reflect the admission, substitution, termination or withdrawal of partners pursuant to 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) confess a judgment against the Partnership.
C. 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) Except as provided in Section 7.3.C., amend, modify or terminate this Agreement other than to reflect the admission, substitution, termination or withdrawal of partners pursuant to Article 12 hereof or the issuance of Partnership Units or Preferred Units in accordance with the terms of this Agreement.
(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.
(4) Approve approve or acquiesce to the transfer of the Partnership Interest of the General Partner to any Person other than the Partnership.; or
(52) Admit admit into the Partnership any Additional or 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 7.3.B7.3.F hereof, the General Partner shall have the power, without any consent the Consent of any 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, termination, or withdrawal of Partners or the issuance of Partnership Units or Preferred Units in accordance with this Agreement along with any amendments related thereto; or to enter into a merger, consolidation or reorganization of the Partnership that does not require Consent of the Holders of Class A Limited Partnership Units under Section 7.3.E; provided that any such amendment does not eliminate, restrict or modify the exchange rights of the Class A Limited Partners under Section 8.6 for REIT Shares without the Consent of the Class A Limited Partners, unless such merger, consolidation or reorganization satisfies the conditions set forth in clause (i) or (ii) of Section 7.3.E(2)(a); NY\5888591.8Agreement;
(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, 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) to amend reflect such changes as are reasonably necessary for the provisions of this Agreement to protect the qualification of the Initial General Partner to maintain its status as a REIT because of REIT, including changes which may be necessitated due to a change in applicable law (or an authoritative interpretation thereof), ) or a ruling of the Internal Revenue Service or if the Initial General Partner has determined to cease qualifying as a REITIRS; and
(6) to modify, as set forth in the definition of “Capital Account,” the manner in which Capital Accounts are computed. The General Partner will provide notice to the Limited Partners when any action under this Section 7.3.C 7.3.E is taken.
D. F. Notwithstanding Section 7.3.B Sections 7.3.B, 7.3.C, 7.3.D and 7.3.C 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 if such amendment or action would (i) convert a Limited Partner’s interest in the Partnership into a general partner’s interest (except as the result of the General Partner acquiring such interest), (ii) modify the limited liability of a Limited Partner, (iii) alter rights of the Partner to receive distributions pursuant to Article 5 or 5, Section 7.1.A(313.2.A(4), Article 16 or the allocations specified in Article 6 (except as permitted pursuant to Section 4.5, 4.6, 4.7 4.3 and Section 7.3.C(2) or 7.3.C(37.3.E(2) hereof), (iv) alter or modify the rights to an Exchange a Redemption or the REIT Shares Amount as set forth in Section 8.6, and related definitions hereof hereof, (v) alter the redemption or exchange rights as set forth in Sections 16.4 and 16.7 hereof, as applicable, or (vvi) amend this Section 7.3.D. 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 in such section.
E. The General Partner . 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 notnot be amended, and no action in contravention of Section 11.2 hereof shall be taken, without the prior Consent of the Holders of Class A Limited Partnership Units, so long as the Holders of the Class A Common Limited Partnership Units have at least 10% of the aggregate Percentage Interests of the Partnership, on behalf of the Partnership, take any of the following actions:
(1) Dissolve the PartnershipPartners.
(2) Agree to or consummate any merger, consolidation, reorganization or other business combination to which the Partnership is a party; other than a merger, consolidation, reorganization or other business combination (a) which involves a merger, consolidation, reorganization or other business combination of the Initial General Partner in which the Holders of Class A Limited Partnership Units either (i) receive consideration that is cash per Class A Limited Partnership Unit equal to the cash amount received by a holder of one REIT Share in such transaction NY\5888591.8 times the Exchange Factor, or (ii) continue as Holders of Class A Limited Partnership Units and continue to have the exchange rights under Section 8.6 for REIT Shares, or (b) that is for the primary purpose of changing the state of formation of the Partnership and where this Agreement is amended only to reflect such different jurisdiction and any changes due to the law of such jurisdiction.
(3) Sell, dispose, convey or otherwise transfer all or substantially all of the assets of the Partnership, in one or a series of transactions (other than a transaction where the Holders of Class A Limited Partnership Units receive consideration that is cash per Class A Limited Partnership Unit equal to the cash amount received by a holder of one REIT Share in such transaction times the Exchange Factor).
Appears in 1 contract
Samples: 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 an express prohibition or limitation of this AgreementAgreement without the Consent of the Limited Partners, includingand may not, 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; NY\5888591.8
(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
(53) enter into any contract, mortgage, loan or other agreement that expressly prohibits or restrictsrestricts (a) the General Partner or the Partnership from performing its specific obligations under Section 15.1 hereof in full, or has the effect of prohibiting, the ability of (b) a Limited Partner to exercise from exercising its rights under Section 15.1 hereof to an Exchange effect a Redemption in fullfull or (c) a Limited Partner from exercising its rights under Section 20.6 hereof to effect a Series 1 CPOP Conversion, except except, in the case of any of clauses (a), (b) or (c), (x) with the written consent Consent of such each Limited PartnerPartner affected by the prohibition or restriction or (y) in connection with or as a result of a Termination Transaction that, in accordance with Section 11.2.B(i) and/or (ii), does not require the Consent of the Limited Partners.
B. The Except as provided in Section 7.3.C hereof, the General Partner shall not, without the prior Consent of the Class A 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) Except as provided in Section 7.3.C., amend, modify or terminate this Agreement other than to reflect the admission, substitution, termination or withdrawal of partners pursuant to Article 12 hereof or the issuance of Partnership Units or Preferred Units in accordance with the terms of this Agreement.
(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.
(4) Approve or acquiesce to the transfer of the Partnership Interest of the General Partner to any Person other than the Partnership.
(5) Admit into the Partnership any Additional or Substitute General Partners.
C. Notwithstanding Section 7.3.B7.3.B and 14.2 hereof but subject to the rights of any Holder of any Partnership Interest set forth in a Partnership Unit Designation, the General Partner shall have the power, without any the Consent of the Partners or the consent or approval of any Limited PartnersPartner or any other Person, 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, termination, substitution or withdrawal of Partners or Partners, the issuance Transfer of any Partnership Units or Preferred Units Interest, the termination of the Partnership in accordance with this Agreement along Agreement, or the adjustment of outstanding LTIP Units as contemplated by Section 16.3 or Performance Units as contemplated by Section 17.3, and to update the Register in connection with any amendments related thereto; such admission, substitution, withdrawal, Transfer or to enter into a merger, consolidation or reorganization of the Partnership that does not require Consent of the Holders of Class A Limited Partnership Units under Section 7.3.E; provided that any such amendment does not eliminate, restrict or modify the exchange rights of the Class A Limited Partners under Section 8.6 for REIT Shares without the Consent of the Class A Limited Partners, unless such merger, consolidation or reorganization satisfies the conditions set forth in clause (i) or (ii) of Section 7.3.E(2)(a); NY\5888591.8adjustment;
(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 set forth or amend the designations, preferences, conversion and other rights, voting powers, restrictions, limitations as to distributions, qualifications and terms and conditions of redemption of the Holders of any additional Partnership Interests issued pursuant to Article 4 (including any changes contemplated by Section 5.5 above);
(5) to satisfy any requirements, conditions, 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;
(5a) to amend reflect such changes as are reasonably necessary for the provisions of this Agreement to protect the qualification of the Initial General Partner to maintain its status as a REIT because or to satisfy the REIT Requirements, or (b) to reflect the Transfer of all or any part of a change in applicable law Partnership Interest among the General Partner and any Disregarded Entity with respect to the General Partner;
(7) to modify either or an authoritative interpretation thereof), a ruling both of the Internal Revenue Service manner in which items of Net Income or if the Initial General Partner has determined Net Loss are allocated pursuant to cease qualifying as a REIT; and
(6) to modify, as set forth in the definition of “Capital Account,” Article VI or the manner in which Capital Accounts are adjusted, computed. The , or maintained (but in each case only to the extent otherwise provided in this Agreement and as may be permitted under applicable law);
(8) to reflect the issuance of additional Partnership Interests in accordance with Section 4.2;
(9) as contemplated by the last sentence of Section 4.4;
(10) to reflect any other modification to this Agreement as is reasonably necessary for the business or operations of the Partnership or the General Partner will provide notice and which does not violate Section 7.3.D;
(11) to effect or facilitate a Termination Transaction that, in accordance with Section 11.2.B(i) and/or (ii), does not require the Consent of the Limited Partners when and, if the Partnership is the Surviving Partnership in any action under Termination Transaction, to modify Section 15.1 or any related definitions to provide that the holders of interests in such Surviving Partnership have rights that are consistent with Section 11.2B(ii);
(12) to reflect any change to the designation or terms of the Series A Preferred Units as set forth in Article 18 or otherwise in this Section 7.3.C is takenAgreement;
(13) to reflect any change to the designation or terms of the Series B Preferred Units as set forth in Article 19 or otherwise in this Agreement; and
(14) to reflect the termination of the class of Series 1 CPOP Units if and from the time that all of the Series 1 CPOP Units shall no longer be, or be deemed to be, outstanding for any purpose.
D. Notwithstanding Sections 7.3.B, 7.3.C (other than as set forth below in this Section 7.3.B 7.3.D) and 7.3.C 14.2 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 thereby, if such amendment or action would (i) convert a Limited Partner’s interest Partner Interest in the Partnership into a general partner’s interest General Partner Interest (except as the a result of the General Partner acquiring such interestPartnership Interest), (ii) adversely modify in any material respect the limited liability of a Limited Partner, (iii) alter the rights of the any Partner to receive the distributions to which such Partner is entitled pursuant to Article 5 or Section 7.1.A(3)13.2.A(4) hereof, or alter the allocations specified in Article 6 hereof (except except, in any case, as permitted pursuant to Section 4.5Sections 4.2, 4.65.5, 4.7 7.3.C (including clause (11) thereof) and Section 7.3.C(2) or 7.3.C(3) Article 6 hereof), (iv) alter or modify the rights to an Exchange Redemption rights, Cash Amount or REIT Shares Amount as set forth in Section 8.615.1 hereof (except, in any case, as permitted pursuant to clause (11) of Section 7.3.C hereof), (v) alter or modify Section 11.2 hereof (except as permitted pursuant to clause (11) of Section 7.3.C hereof), (vi) subject to Section 7.8.I, remove the powers and restrictions related definitions to REIT Requirements or permitting the General Partner to avoid paying tax under Code Sections 857 or 4981 contained in Sections 7.1 and 7.3, (vii) alter or modify the Series 1 CPOP Cash Amount or conversion rights set forth in Section 20.6 hereof or (vviii) amend this Section 7.3.D. 7.3.D, or, in each case for all provisions referenced in this Section 7.3.D, amend or modify any related definitions or Exhibits (except as permitted pursuant to clause (11) of Section 7.3.C hereof). 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 in therein. Any such section.
E. The General amendment or action consented to by any Partner shall notbe effective as to that Partner, without notwithstanding the prior Consent of the Holders of Class A Limited Partnership Units, so long as the Holders of the Class A Common Limited Partnership Units have at least 10% of the aggregate Percentage Interests of the Partnership, on behalf of the Partnership, take any of the following actions:
(1) Dissolve the Partnership.
(2) Agree to or consummate any merger, consolidation, reorganization or other business combination to which the Partnership is a party; other than a merger, consolidation, reorganization or other business combination (a) which involves a merger, consolidation, reorganization or other business combination of the Initial General Partner in which the Holders of Class A Limited Partnership Units either (i) receive consideration that is cash per Class A Limited Partnership Unit equal to the cash amount received by a holder of one REIT Share in such transaction NY\5888591.8 times the Exchange Factor, or (ii) continue as Holders of Class A Limited Partnership Units and continue to have the exchange rights under Section 8.6 for REIT Shares, or (b) that is for the primary purpose of changing the state of formation of the Partnership and where this Agreement is amended only to reflect such different jurisdiction and any changes due to the law absence of such jurisdictionconsent by any other Partner.
(3) Sell, dispose, convey or otherwise transfer all or substantially all of the assets of the Partnership, in one or a series of transactions (other than a transaction where the Holders of Class A Limited Partnership Units receive consideration that is cash per Class A Limited Partnership Unit equal to the cash amount received by a holder of one REIT Share in such transaction times the Exchange Factor).
Appears in 1 contract
Samples: Limited Partnership Agreement (Rexford Industrial Realty, 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 a Person as a Partner, except as otherwise provided in this Agreement; NY\5888591.8;
(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, prohibiting or restricting (i) the General Partner or the Partnership from satisfying its obligations under Section 8.6 in full or (ii) the ability of a Common Limited Partner to exercise from exercising its rights to an Exchange under Section 8.6 in full, ; except in each case with the written consent of such each Common Limited PartnerPartner affected by the prohibition or restriction.
B. The General Partner shall not, without the prior Consent of the Class A Common Limited Partners, undertake, on behalf of the Partnership, undertake any of the following actions or enter into any transaction which would have the effect of such transactions:
(1) Except except as provided in Section 7.3.C.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 Articles 11 and 12 hereof or the issuance of Partnership Units or Preferred Units in accordance with the terms of this Agreement.hereof;
(2) Make 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 institute any proceeding for Bankruptcy bankruptcy on behalf of the Partnership.;
(4) Approve or acquiesce subject to the transfer rights of Transfer provided in Section 11.2 hereof, Transfer the Partnership Interest of the General Partner to including through any Person other than merger, consolidation or liquidation of the Partnership.General Partner, or admit into the Partnership any successor General Partners;
(5) Admit into take title to assets (other than temporarily in connection with an acquisition prior to contributing such assets to the Partnership) other than its interest in the Partnership or conduct business other than through the Partnership, or for the General Partner or the Partnership to engage in any Additional or Substitute General Partnersbusiness other than the ownership, construction, development and operation of multifamily rental apartment communities.
C. Notwithstanding Section 7.3.B7.3.B hereof, the General Partner shall have the power, without any consent the Consent of any Limited Partners, to amend this Agreement (including a Designation Instrument) as may be required to facilitate or implement any of the following foregoing 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, termination, or withdrawal of Partners or the issuance of Partnership Units or Preferred Units in accordance with this Agreement, and to amend Exhibit A to the Agreement along in connection with any amendments related thereto; such admission, substitution or to enter into a merger, consolidation or reorganization of the Partnership that does not require Consent of the Holders of Class A Limited Partnership Units under Section 7.3.E; provided that any such amendment does not eliminate, restrict or modify the exchange rights of the Class A Limited Partners under Section 8.6 for REIT Shares without the Consent of the Class A Limited Partners, unless such merger, consolidation or reorganization satisfies the conditions set forth in clause (i) or (ii) of Section 7.3.E(2)(a); NY\5888591.8withdrawal;
(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) to amend reflect such changes as are reasonably necessary for the provisions of this Agreement to protect the qualification of the Initial General Partner as a REIT because of a change in applicable law (or an authoritative interpretation thereof), a ruling of the Internal Revenue Service or if the Initial General Partner has determined to cease qualifying maintain status as a REIT; and;
(6) to modify, as set forth in the definition of “Capital Account,” modify the manner in which Capital Accounts are computedcomputed but only to the extent set forth in the definition of "Capital Account"; and
(7) subject to the rights set forth in the Designation Instrument of any outstanding series of Preferred Limited Partner Units, to set forth in a Designation Instrument the designations, rights, powers, duties, and preferences of holders of Preferred Limited Partnership Interests issued pursuant to Section 4.5.F hereof. The General Partner will provide notice to the Limited Partners when any action under this Section 7.3.C is taken.
D. Notwithstanding Section 7.3.B and 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’s interest Partner Interest in the Partnership into a general partner’s interest General Partner Interest (except as the a result of the General Partner acquiring such interest), (ii) modify the limited liability of a Limited Partner, (iii) alter rights of the Partner to receive distributions pursuant to Article 5 5, Article 10 or Section 7.1.A(3), ) hereof or the allocations specified in Article 6 (except in any such case as permitted pursuant to Section 4.5, 4.6, 4.7 4.5 and Section 7.3.C(27.3.C(3) or 7.3.C(3) hereof(7)), (iv) alter or modify the rights right of a Common Limited Partner to effect an Exchange or REIT Shares Amount as Cash Tender pursuant to Section 8.6 hereof or amend or modify any related definitions, (v) cause the termination of the Partnership prior to the time set forth in Sections 2.5 or 13.1, (vi) alter or modify Section 8.6, and related definitions hereof 11.3.F or (vvii) amend this Section 7.3.D. 7.3.D., provided that (1) with respect to the foregoing clause (iii), the Consent of each Preferred Limited Partner adversely affected by such amendment or action shall only be required if the applicable Designation Instrument or Instruments require such unanimous Consent and, if not so required by such Designation Instrument or Instruments, then such amendment or action shall only require the approval of such percentage of Preferred Limited Partner Interests as shall be set forth in the applicable Designation Instrument or Instruments, (2) only the Consent of Common Limited Partners shall be required under clause (v) above, and (3) with respect to clause (vii) above, the Consent of Preferred Limited Partners shall be required only if the amendment to this Section 7.3.D materially and adversely affects the rights, preferences and privileges of the Preferred Limited Partner Interests. 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 in such sectionappropriate consent.
E. The For so long as the Common Limited Partner Interests of all of the Common Limited Partners of the Partnership equal, in the aggregate, not less than ten percent (10%) of the aggregate Junior Partnership Interests, the General Partner shall not, without the prior Consent of the Holders of Class A Limited Partnership Units, so long as the Holders of the Class A Common Limited Partnership Units have at least 10% of the aggregate Percentage Interests of the PartnershipPartners, undertake, on behalf of the Partnership, take any of the following actions:
(1) Dissolve the Partnership.
(2) Agree to or consummate any merger, consolidation, reorganization or other business combination to which the Partnership is a party; other than a merger, consolidation, reorganization or other business combination (a) which involves a merger, consolidation, reorganization or other business combination of the Initial General Partner in which the Holders of Class A Limited Partnership Units either (i) receive consideration that is cash per Class A Limited Partnership Unit equal to the cash amount received by a holder of one REIT Share in such transaction NY\5888591.8 times the Exchange Factor, or (ii) continue as Holders of Class A Limited Partnership Units and continue to have the exchange rights under Section 8.6 for REIT Shares, or (b) that is for the primary purpose of changing the state of formation of the Partnership and where this Agreement is amended only to reflect such different jurisdiction and any changes due to the law of such jurisdiction.
(3) Sell, dispose, convey or otherwise transfer all or substantially all of the assets of the Partnership, in one or a series each case resulting in the disposition by the then Common Limited Partners and Assignees of transactions (other than a transaction where the Holders of Class A Limited Partnership Units receive consideration that is cash per Class A Limited Partnership Unit equal to the cash amount received by a holder of one REIT Share in such transaction times the Exchange Factor).all
Appears in 1 contract
Samples: Limited Partnership Agreement (Irvine Apartment Communities L P)
Restrictions on General Partner’s Authority. A. (a) The General Partner may not take any action in contravention of this Agreement, including, without limitation:
(1i) take taking any action that would make it impossible to carry on the ordinary business of the Partnership, except as otherwise provided in this AgreementAgreement (including the permitted disposition of any asset at any time, subject to the provisions of Contribution Agreements restricting such disposition, if any);
(2ii) possess possessing Partnership property, or assign assigning any rights in specific Partnership property, for other than a Partnership purpose except as otherwise provided in this Agreement, including, without limitation, Section 7.10;
(3iii) admit admitting a Person as a Partner, except as otherwise provided in this Agreement; NY\5888591.8;
(4iv) 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 Section 10.4 hereof or under the Act; or
(5v) enter entering into any contract, mortgage, loan or other agreement that prohibits or restricts, or has the effect of prohibitingprohibiting or restricting, the ability of (a) the General Partner, or the Partnership from satisfying its obligations under Section 8.6 hereof in full or (b) a Limited Partner to exercise from exercising its rights under Section 8.6 hereof to an Exchange effect a Redemption in full, except except, in either case, with the written consent of such Limited PartnerPartner affected by the prohibition or restriction.
B. (b) The General Partner shall not, without the prior Consent of the Class A Limited Partners, undertake, on behalf of the Partnership, any of the following actions or enter into any transaction which that would have the effect of such transactions:
(1i) Except except as provided in Section 7.3.C.Sections 4.2(a), 5.5, 6.2(b), 6.3(d) and 7.3(c) hereof, 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 or the issuance of Partnership Units or Preferred Units in accordance with the terms of this Agreement.hereof;
(2ii) Make 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 institute any proceeding for Bankruptcy bankruptcy on behalf of the Partnership.
(4c) Approve or acquiesce to the transfer of the Partnership Interest of the General Partner to any Person other than the Partnership.
(5) Admit into the Partnership any Additional or Substitute General Partners.
C. Notwithstanding Section 7.3.B7.3(b) hereof, the General Partner shall have the power, without any consent the Consent of any 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, termination, substitution or withdrawal of Partners or Partners, the issuance of LTIP Units, or the termination of the Partnership Units or Preferred Units in accordance with this Agreement along Agreement, and to amend Exhibit A in connection with any amendments related thereto; such admission, substitution, withdrawal or to enter into a merger, consolidation or reorganization issuance of the Partnership that does not require Consent of the Holders of Class A Limited Partnership Units under Section 7.3.E; provided that any such amendment does not eliminate, restrict or modify the exchange rights of the Class A Limited Partners under Section 8.6 for REIT Shares without the Consent of the Class A Limited Partners, unless such merger, consolidation or reorganization satisfies the conditions set forth in clause (i) or (ii) of Section 7.3.E(2)(a); NY\5888591.8LTIP Units;
(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;
(5v) to amend reflect such changes as are reasonably necessary to reflect the provisions Transfer of this Agreement to protect all or any part of a Partnership Interest between the qualification General Partner and any disregarded entity of the Initial General Partner as a REIT because of a change in applicable law (or an authoritative interpretation thereof), a ruling of the Internal Revenue Service or if the Initial General Partner has determined to cease qualifying as a REIT; andPartner;
(6vi) to modify, as 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 manner Code or the Regulations);
(vii) to issue additional Partnership Interests in which accordance with Section 4.2; and
(viii) to amend the Allocation Provisions (A) as necessary to effectuate the intent of Section 6.3(d) regarding the Partners’ respective intended Capital Accounts are computedAccount balances and (B) upon advice of counsel, so as to improve the likelihood that any tax position of the Partnership or with respect to a contributing Partner will be sustained (provided that the provisions of Section 6.3(d) shall at all times be satisfied). The General Partner will provide notice to the Limited Partners when any action under this Section 7.3.C 7.3(c) is taken.
D. (d) Notwithstanding Section 7.3.B Sections 7.3(b) and 7.3.C 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 thereby, if such amendment or action would (i) convert a Limited Partner’s interest Partner Interest in the Partnership into a general partner’s interest General Partner Interest (except as the a result of the General Partner acquiring such interestPartnership Interest), (ii) modify the limited liability of a Limited Partner, (iii) alter the rights of the any Partner to receive the distributions to which such Partner would be entitled pursuant to Article 5 or V (if Article V controlled all Distributions and Section 7.1.A(313.2(a)(ii) hereof did not apply), or alter the allocations specified in Article 6 hereof (except except, in any case, as permitted pursuant to Section 4.5Sections 4.2, 4.65.5, 4.7 6.2(b), 6.3(d) and Section 7.3.C(2) or 7.3.C(37.3(c) hereof), (iv) alter or modify the rights to an Exchange Redemption rights, Cash Amount or REIT Shares Amount as set forth in Section 8.6Sections 8.6 and 11.2 hereof, and or amend or modify any related definitions hereof definitions, or (v) amend this Section 7.3.D. 7.3(d). 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 in therein. Any such section.
E. The General amendment or action consented to by any Partner shall notbe effective as to that Partner, without notwithstanding the prior Consent of the Holders of Class A Limited Partnership Units, so long as the Holders of the Class A Common Limited Partnership Units have at least 10% of the aggregate Percentage Interests of the Partnership, on behalf of the Partnership, take any of the following actions:
(1) Dissolve the Partnership.
(2) Agree to or consummate any merger, consolidation, reorganization or other business combination to which the Partnership is a party; other than a merger, consolidation, reorganization or other business combination (a) which involves a merger, consolidation, reorganization or other business combination of the Initial General Partner in which the Holders of Class A Limited Partnership Units either (i) receive consideration that is cash per Class A Limited Partnership Unit equal to the cash amount received by a holder of one REIT Share in such transaction NY\5888591.8 times the Exchange Factor, or (ii) continue as Holders of Class A Limited Partnership Units and continue to have the exchange rights under Section 8.6 for REIT Shares, or (b) that is for the primary purpose of changing the state of formation of the Partnership and where this Agreement is amended only to reflect such different jurisdiction and any changes due to the law absence of such jurisdictionconsent by any other Partner.
(3) Sell, dispose, convey or otherwise transfer all or substantially all of the assets of the Partnership, in one or a series of transactions (other than a transaction where the Holders of Class A Limited Partnership Units receive consideration that is cash per Class A Limited Partnership Unit equal to the cash amount received by a holder of one REIT Share in such transaction times the Exchange Factor).
Appears in 1 contract
Samples: Limited Partnership Agreement (Meruelo Maddux Properties, 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 AgreementAgreement without the Consent of the Limited Partners, includingand may not, 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;
(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; NY\5888591.8
(4ii) 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
(5iii) enter into any contract, mortgage, loan or other agreement that expressly prohibits or restricts, restricts (A) the General Partner or has the effect of prohibiting, the ability of Partnership from performing its specific obligations under Section 15.1 hereof in full or (B) a Limited Partner to exercise from exercising its rights under Section 15.1 hereof to an Exchange effect a Redemption in full, except except, in either case, with the written consent Consent of such each Limited PartnerPartner affected by the prohibition or restriction.
B. The (b) Except as provided in Section 7.3(c) hereof, the General Partner shall not, without the prior Consent of the Class A 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) Except as provided in Section 7.3.C., amend, modify or terminate this Agreement. Further, no amendment may alter the restrictions on the General Partner’s authority set forth elsewhere in this Agreement other than to reflect (including, without limitation, this Section 7.3) without the admission, substitution, termination or withdrawal Consent specified therein and no amendment may alter Section 11.2 hereof without the Consent of partners pursuant to Article 12 hereof or the issuance of Partnership Units or Preferred Units in accordance with the terms of this AgreementLimited Partners.
(2c) 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.
(3Notwithstanding Sections 7.3(b) Institute any proceeding for Bankruptcy on behalf of the Partnership.
(4) Approve or acquiesce and 14.2 hereof but subject to the transfer rights of the any Holder of any Partnership Interest of the General Partner to any Person other than the Partnership.
(5) Admit into the set forth in a Partnership any Additional or Substitute General Partners.
C. Notwithstanding Section 7.3.BUnit Designation, the General Partner shall have the power, without any consent the Consent of any Limited the 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, termination, substitution or withdrawal of Partners Partners, the Transfer of any Partnership Interest or the issuance termination of the Partnership Units or Preferred Units in accordance with this Agreement along and to amend Exhibit A in connection with any amendments related thereto; such admission, substitution or to enter into a merger, consolidation or reorganization of the Partnership that does not require Consent of the Holders of Class A Limited Partnership Units under Section 7.3.E; provided that any such amendment does not eliminate, restrict or modify the exchange rights of the Class A Limited Partners under Section 8.6 for REIT Shares without the Consent of the Class A Limited Partners, unless such merger, consolidation or reorganization satisfies the conditions set forth in clause (i) or (ii) of Section 7.3.E(2)(a); NY\5888591.8withdrawal;
(3iii) 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;
(iv) 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 the Holders of any additional Partnership Interests issued pursuant to Article 4;
(v) 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;
(5A) to amend reflect such changes as are reasonably necessary for the provisions of this Agreement to protect the qualification of the Initial General Partner to maintain its status as a REIT because or to satisfy the REIT Requirements, or (B) to reflect the Transfer of all or any part of a change in applicable law Partnership Interest among the General Partner and any Disregarded Entity with respect to the General Partner;
(vii) to modify either or an authoritative interpretation thereof), a ruling both of the Internal Revenue Service manner in which items of Net Income or if the Initial General Partner has determined Net Loss or taxable items are allocated pursuant to cease qualifying as a REIT; and
(6) to modify, as set forth in the definition of “Capital Account,” Article 6 or the manner in which Capital Accounts are adjusted, computed. The , or maintained (but in each case only to the extent otherwise provided in this Agreement and as may be permitted under applicable law);
(viii) to reflect the issuance of additional Partnership Interests in accordance with Section 4.2; or
(ix) to reflect any other modification to this Agreement as is reasonably necessary for the business or operations of the Partnership or the General Partner will provide notice to the Limited Partners when any action under this and which does not violate Section 7.3.C is taken7.3(d).
D. (d) Notwithstanding Section 7.3.B Sections 7.3(b), 7.3(c) and 7.3.C 14.2 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 thereby, if such amendment or action would (i) convert a Limited Partner’s interest Partner Interest in the Partnership into a general partner’s interest General Partner Interest (except as the a result of the General Partner acquiring such interestPartnership Interest), ; (ii) modify the limited liability of a Limited Partner, ; (iii) alter the rights of the any Partner to receive the distributions to which such Partner is entitled pursuant to Article 5 or Section 7.1.A(3), 13.2(a)(iv) hereof or alter the allocations specified in Article 6 hereof (except except, in any case, as permitted pursuant to Section 4.5Sections 4.2, 4.64.3, 4.7 4.4, 5.4 and Section 7.3.C(27.3(c) or 7.3.C(3) and Article 6 hereof), ; (iv) alter or modify the rights to an Exchange Redemption rights, Cash Amount or REIT Shares Amount as set forth in Section 8.615.1 hereof, or amend or modify any related definitions; (v) remove, alter or amend the powers and restrictions related definitions hereof to REIT Requirements or to taxes under Code Sections 857 or 4981 as set forth in Section 7.9(d) or elsewhere in this Agreement; or (vvi) amend this Section 7.3.D. Further, no 7.3(d). Any such amendment may alter the restrictions on the General Partner’s authority set forth elsewhere in this Section 7.3 without the Consent specified in such section.
E. The General or action Consented to by any Partner shall notbe effective as to that Partner, without notwithstanding the prior Consent of the Holders of Class A Limited Partnership Units, so long as the Holders of the Class A Common Limited Partnership Units have at least 10% of the aggregate Percentage Interests of the Partnership, on behalf of the Partnership, take any of the following actions:
(1) Dissolve the Partnership.
(2) Agree to or consummate any merger, consolidation, reorganization or other business combination to which the Partnership is a party; other than a merger, consolidation, reorganization or other business combination (a) which involves a merger, consolidation, reorganization or other business combination of the Initial General Partner in which the Holders of Class A Limited Partnership Units either (i) receive consideration that is cash per Class A Limited Partnership Unit equal to the cash amount received by a holder of one REIT Share in such transaction NY\5888591.8 times the Exchange Factor, or (ii) continue as Holders of Class A Limited Partnership Units and continue to have the exchange rights under Section 8.6 for REIT Shares, or (b) that is for the primary purpose of changing the state of formation of the Partnership and where this Agreement is amended only to reflect such different jurisdiction and any changes due to the law absence of such jurisdictionConsent by any other Partner.
(3) Sell, dispose, convey or otherwise transfer all or substantially all of the assets of the Partnership, in one or a series of transactions (other than a transaction where the Holders of Class A Limited Partnership Units receive consideration that is cash per Class A Limited Partnership Unit equal to the cash amount received by a holder of one REIT Share in such transaction times the Exchange Factor).
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, includingAgreement without the Consent of the Limited Partners and may not, 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; NY\5888591.8
(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
(53) enter into any contract, mortgage, loan or other agreement that expressly prohibits or restricts, restricts (a) the General Partner or has the effect of prohibiting, the ability of Partnership from performing its specific obligations under Section 15.1 in full or (b) a Limited Partner to exercise from exercising its rights under Section 15.1 to an Exchange effect a Redemption in full, except except, in either case, (x) with the written consent Consent of such each Limited Partner affected by the prohibition or restriction or (y) in connection with or as a result of a Termination Transaction that, in accordance with Section 11.2.B(i) and/or (ii), does not require the Consent of the Limited Partner.
B. The (B) No amendment to this Agreement may alter the restrictions on the General Partner shall notPartner’s authority set forth elsewhere in this Agreement (including, without limitation, this Section 7.3) without the prior Consent specified therein and no amendment may alter Section 11.2 without the Consent of the Class A 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) Except as provided in Section 7.3.C., amend, modify or terminate this Agreement other than to reflect the admission, substitution, termination or withdrawal of partners pursuant to Article 12 hereof or the issuance of Partnership Units or Preferred Units in accordance with the terms of this Agreement.
(2C) Make a general assignment for Notwithstanding Section 14.2 but subject to Sections 7.3.A, 7.3.B, 7.3.D and 16.10 and the benefit rights of creditors or appoint or acquiesce in the appointment any Holder 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.
(4) Approve or acquiesce to the transfer of the Partnership Interest of the General Partner to any Person other than the Partnership.
(5) Admit into the set forth in a Partnership any Additional or Substitute General Partners.
C. Notwithstanding Section 7.3.BUnit Designation, the General Partner shall have the power, without any consent the Consent of any Limited the Partners, to amend this Agreement for any reason, including, without limitation, 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, termination, substitution or withdrawal of Partners or Partners, the issuance Transfer of any Partnership Units or Preferred Units Interest, the termination of the Partnership in accordance with this Agreement along Agreement, or the adjustment of outstanding LTIP Units as contemplated by Section 16.3 or Performance Units as contemplated by Section 17.3, and to amend Exhibit A in connection with any amendments related thereto; such admission, substitution, withdrawal, Transfer or to enter into a merger, consolidation or reorganization of the Partnership that does not require Consent of the Holders of Class A Limited Partnership Units under Section 7.3.E; provided that any such amendment does not eliminate, restrict or modify the exchange rights of the Class A Limited Partners under Section 8.6 for REIT Shares without the Consent of the Class A Limited Partners, unless such merger, consolidation or reorganization satisfies the conditions set forth in clause (i) or (ii) of Section 7.3.E(2)(a); NY\5888591.8adjustment;
(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 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 the Holders of any additional Partnership Interests issued pursuant to Article 4 (including any changes contemplated by Section 5.5);
(5) to satisfy any requirements, conditions, 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;
(56) to amend reflect (a) such changes as are reasonably necessary for the provisions of this Agreement to protect the qualification of the Initial General Partner to maintain its status as a REIT because of or to satisfy the REIT Requirements, including changes that may be necessitated due to a change in applicable law (or an authoritative interpretation thereof), ) or a ruling of the Internal Revenue Service or if (b) the Initial Transfer of all or any part of a Partnership Interest among the General Partner has determined and any Disregarded Entity with respect to cease qualifying as a REIT; andthe General Partner;
(67) to modify, as set forth modify either or both of the manner in the definition which items of “Capital Account,” Net Income or Net Loss are allocated pursuant to Article 6 or the manner in which Capital Accounts are adjusted, computed. The , or maintained (but in each case only to the extent otherwise provided in this Agreement and as may be permitted under applicable law);
(8) to reflect the issuance of additional Partnership Interests in accordance with Section 4.2;
(9) as contemplated by the last sentence of Section 4.4;
(10) to reflect any other modification to this Agreement as is reasonably necessary for the business or operations of the Partnership or the General Partner will provide notice and which does not violate Section 7.3.D; or
(11) to effect or facilitate a Termination Transaction that, in accordance with Section 11.2.B(i) and/or (ii), does not require the Consent of the Limited Partners when and, if the Partnership is the Surviving Partnership in any action under this Termination Transaction, to modify Section 7.3.C is taken15.1 or any related definitions to provide that the holders of interests in such Surviving Partnership have rights that are consistent with Section 11.2.B(ii).
D. (D) Notwithstanding Section 7.3.B Sections 7.3.B, 7.3.C and 7.3.C hereof14.2, this Agreement shall not be amended, and no action may be taken by the General Partner, without the Consent consent of each Partner adversely affected thereby, if such amendment or action would (i) convert a Limited Partner’s interest Partner Interest in the Partnership into a general partner’s interest General Partner Interest (except as the a result of the General Partner acquiring such interestPartnership Interest), (ii) adversely modify in any material respect the limited liability of a Limited Partner, (iii) alter the rights of the any Partner to receive the distributions to which such Partner is entitled pursuant to Article 5 or Section 7.1.A(313.2.A(4), or alter the allocations specified in Article 6 (except except, in any case, as permitted pursuant to Section 4.5Sections 4.2, 4.65.5, 4.7 7.3.C (including clause (11) thereof) and Section 7.3.C(2) or 7.3.C(3) hereofArticle 6), (iv) alter or modify the rights to an Exchange Redemption rights, Cash Amount or REIT Shares Amount as set forth in Section 8.615.1 (except, in any case, as permitted pursuant to clause (11) of Section 7.3.C), (v) alter or modify Section 11.2 (except as permitted pursuant to clause (11) of Section 7.3.C), or amend or modify any related definitions, (v) subject to Section 7.9.D, remove, alter or amend the powers and restrictions related definitions hereof to REIT Requirements or permitting the General Partner to avoid paying tax under Code Sections 857 or 4981 contained in Sections 7.1 and 7.3, or (vvi) amend this Section 7.3.D. Further7.3.D, no amendment may alter the restrictions on the General Partner’s authority set forth elsewhere or, in each case for all provisions referenced in this Section 7.3 without the Consent specified in 7.3.D, amend or modify any related definitions or Exhibits (except as permitted pursuant to clause (11) of Section 7.3.C). Any such section.
E. The General amendment or action Consented to by any Partner shall notbe effective as to that Partner, without notwithstanding the prior Consent of the Holders of Class A Limited Partnership Units, so long as the Holders of the Class A Common Limited Partnership Units have at least 10% of the aggregate Percentage Interests of the Partnership, on behalf of the Partnership, take any of the following actions:
(1) Dissolve the Partnership.
(2) Agree to or consummate any merger, consolidation, reorganization or other business combination to which the Partnership is a party; other than a merger, consolidation, reorganization or other business combination (a) which involves a merger, consolidation, reorganization or other business combination of the Initial General Partner in which the Holders of Class A Limited Partnership Units either (i) receive consideration that is cash per Class A Limited Partnership Unit equal to the cash amount received by a holder of one REIT Share in such transaction NY\5888591.8 times the Exchange Factor, or (ii) continue as Holders of Class A Limited Partnership Units and continue to have the exchange rights under Section 8.6 for REIT Shares, or (b) that is for the primary purpose of changing the state of formation of the Partnership and where this Agreement is amended only to reflect such different jurisdiction and any changes due to the law absence of such jurisdictionconsent by any other Partner.
(3) Sell, dispose, convey or otherwise transfer all or substantially all of the assets of the Partnership, in one or a series of transactions (other than a transaction where the Holders of Class A Limited Partnership Units receive consideration that is cash per Class A Limited Partnership Unit equal to the cash amount received by a holder of one REIT Share in such transaction times the Exchange Factor).
Appears in 1 contract
Samples: Limited Partnership Agreement (Workspace Property Trust)
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 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 propertyProperty, or assign assigning any rights in specific Partnership propertyProperty, for other than a Partnership purpose except as otherwise provided in this Agreement, including, without limitation, Section 7.10;
(3) admit admitting a Person as a Partner, except as otherwise provided in this Agreement; NY\5888591.8;
(4) 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 Section 10.4 hereof or under the Act; or
(5) enter entering into any contract, mortgage, loan or other agreement that prohibits or restricts, or has the effect of prohibitingprohibiting or restricting, the ability of (a) the General Partner, or the Partnership from satisfying its obligations under Section 8.6 hereof in full or (b) a Limited Partner to exercise from exercising its rights under Section 8.6 hereof to an Exchange effect a Redemption in full, except except, in either case, with the written consent of such Limited PartnerPartner affected by the prohibition or restriction.
B. The General Partner shall not, without the prior Consent of the Class A Limited Partners, undertake, on behalf of the Partnership, any of the following actions or enter into any transaction which that would have the effect of such transactions:
(1) Except except as provided in Section 7.3.C.Sections 4.2.A, 5.5, 6.2.B and 7.3.C hereof, 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 or the issuance of Partnership Units or Preferred Units in accordance with the terms of this Agreement.hereof;
(2) Make 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
(3) Institute institute any proceeding for Bankruptcy bankruptcy on behalf of the Partnership.
(4) Approve or acquiesce to the transfer of the Partnership Interest of the General Partner to any Person other than the Partnership.
(5) Admit into the Partnership any Additional or Substitute General Partners.
C. Notwithstanding Section 7.3.B7.3.B hereof, the General Partner shall have the power, without any consent the Consent of any 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, termination, substitution or withdrawal of Partners or the issuance termination of the Partnership Units or Preferred Units in accordance with this Agreement along Agreement, and to amend Exhibit A in connection with any amendments related thereto; such admission, substitution or to enter into a merger, consolidation or reorganization of the Partnership that does not require Consent of the Holders of Class A Limited Partnership Units under Section 7.3.E; provided that any such amendment does not eliminate, restrict or modify the exchange rights of the Class A Limited Partners under Section 8.6 for REIT Shares without the Consent of the Class A Limited Partners, unless such merger, consolidation or reorganization satisfies the conditions set forth in clause (i) or (ii) of Section 7.3.E(2)(a); NY\5888591.8withdrawal;
(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;
(5a) to amend reflect such changes as are reasonably necessary (i) for the provisions of this Agreement to protect the qualification of the Initial General Partner to maintain its status as a REIT because or to satisfy the REIT Requirements; (b) to reflect the Transfer of all or any part of a change in applicable law (or an authoritative interpretation thereof), a ruling of Partnership Interest between the Internal Revenue Service or if the Initial General Partner has determined to cease qualifying as a REIT; andand any Qualified REIT Subsidiary;
(6) to modify, as set forth in the definition of “Capital Account,” modify the manner in which Capital Accounts are computedcomputed (but only to the extent set forth in the definition of "Capital Account" or contemplated by the Code or the Regulations); and
(7) to issue 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 7.3.C is taken.
D. Notwithstanding Section Sections 7.3.B and 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 thereby, if such amendment or action would (i) convert a Limited Partner’s interest Partner Interest in the Partnership into a general partner’s interest General Partner Interest (except as the a result of the General Partner acquiring such interestPartnership Interest), (ii) modify the limited liability of a Limited Partner, (iii) alter the rights of the any Partner to receive the distributions to which such Partner is entitled, pursuant to Article 5 or Section 7.1.A(3)13.2.A(4) hereof, or alter the allocations specified in Article 6 hereof (except except, in any case, as permitted pursuant to Section 4.5Sections 4.2, 4.65.5, 4.7 6.2.B and Section 7.3.C(2) or 7.3.C(3) 7.3.C hereof), (iv) alter or modify the rights to an Exchange Redemption rights, Cash Amount or REIT Shares Amount as set forth in Section 8.6Sections 8.6 and 11.2 hereof, and or amend or modify any related definitions hereof definitions, or (v) amend this Section 7.3.D. 7.3.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 in therein. Any such section.
E. The General amendment or action consented to by any Partner shall notbe effective as to that Partner, without notwithstanding the prior Consent of the Holders of Class A Limited Partnership Units, so long as the Holders of the Class A Common Limited Partnership Units have at least 10% of the aggregate Percentage Interests of the Partnership, on behalf of the Partnership, take any of the following actions:
(1) Dissolve the Partnership.
(2) Agree to or consummate any merger, consolidation, reorganization or other business combination to which the Partnership is a party; other than a merger, consolidation, reorganization or other business combination (a) which involves a merger, consolidation, reorganization or other business combination of the Initial General Partner in which the Holders of Class A Limited Partnership Units either (i) receive consideration that is cash per Class A Limited Partnership Unit equal to the cash amount received by a holder of one REIT Share in such transaction NY\5888591.8 times the Exchange Factor, or (ii) continue as Holders of Class A Limited Partnership Units and continue to have the exchange rights under Section 8.6 for REIT Shares, or (b) that is for the primary purpose of changing the state of formation of the Partnership and where this Agreement is amended only to reflect such different jurisdiction and any changes due to the law absence of such jurisdictionconsent by any other Partner.
(3) Sell, dispose, convey or otherwise transfer all or substantially all of the assets of the Partnership, in one or a series of transactions (other than a transaction where the Holders of Class A Limited Partnership Units receive consideration that is cash per Class A Limited Partnership Unit equal to the cash amount received by a holder of one REIT Share in such transaction times the Exchange Factor).
Appears in 1 contract
Samples: Agreement of Limited Partnership (Newcastle Investment 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 Partnershipadmitting a Person as a Partner, 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; NY\5888591.8
(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;
(53) enter entering into any contract, mortgage, loan or other agreement that that, in the absence of a default under such document, expressly prohibits or restricts, restricts (a) the Special Limited Partner or has the effect of prohibiting, the ability of Partnership from performing its specific obligations under Section 15.1 hereof or (b) a Limited Partner to exercise from exercising its rights under Section 15.1 hereof to an Exchange effect a Redemption, except, in fulleither case, except with the written consent of such Limited PartnerPartner affected by the prohibition or restriction.
B. The General Partner shall not, without the prior Consent of the Class A Limited Partners, undertake, undertake on behalf of the Partnership, any of the following actions or enter into any transaction which that would have the effect of, any of such transactionsthe following actions:
(1) Except except as provided in Section 7.3.C.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 12 hereof or the issuance of Partnership Units or Preferred Units in accordance with the terms of this Agreement.;
(2) Make 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.; or
(35) Institute institute any proceeding for Bankruptcy bankruptcy on behalf of the Partnership.
(4) Approve or acquiesce to the transfer of the Partnership Interest of the General Partner to any Person other than the Partnership.
(5) Admit into the Partnership any Additional or Substitute General Partners.
C. Notwithstanding Section 7.3.B7.3.B hereof but subject to the rights of any Holder of any Partnership Interest set forth in a Partnership Unit Designation and Section 7.3.D, the General Partner shall have the power, without any 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, termination, substitution or withdrawal of Partners Partners, the Transfer of any Partnership Interest or the issuance termination of the Partnership Units or Preferred Units in accordance with this Agreement along Agreement, and to amend the Register in connection with any amendments related thereto; such admission, substitution, withdrawal or to enter into a merger, consolidation or reorganization of the Partnership that does not require Consent of the Holders of Class A Limited Partnership Units under Section 7.3.E; provided that any such amendment does not eliminate, restrict or modify the exchange rights of the Class A Limited Partners under Section 8.6 for REIT Shares without the Consent of the Class A Limited Partners, unless such merger, consolidation or reorganization satisfies the conditions set forth in clause (i) or (ii) of Section 7.3.E(2)(a); NY\5888591.8Transfer;
(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, 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) to amend reflect such changes as are reasonably necessary or appropriate for the provisions of this Agreement Special Limited Partner to protect the qualification of the Initial General Partner maintain its status as a REIT because of a change in applicable law (or an authoritative interpretation thereof), a ruling of to satisfy the Internal Revenue Service or if the Initial General Partner has determined to cease qualifying as a REIT; andREIT Requirements;
(6) to modifyreflect such changes as are reasonably necessary or appropriate for the General Partner or the Partnership to comply with, as or reasonably allocate the burden of any Partnership-level assessments under, the New Partnership Audit Procedures;
(7) 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 manner Code or the Regulations);
(8) to reflect the issuance of additional Partnership Interests in accordance with Article 4;
(9) 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;
(10) if the Partnership is the Surviving Partnership in any Termination Transaction, to modify Section 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
(11) 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 and which Capital Accounts are computed. The General Partner will provide notice to the Limited Partners when any action under this does not violate Section 7.3.C is taken.7.3.D.
D. Notwithstanding Section 7.3.B Sections 7.3.B, 7.3.C and 7.3.C 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 affected thereby, if such amendment or action would (i) convert a Limited Partner’s interest in the Partnership Partner into a general partner’s interest partner of the Partnership (except as the a result of the Limited Partner becoming the General Partner acquiring such 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 the any Partner to receive the distributions to which such Partner is entitled pursuant to Article 5 or Section 7.1.A(3)13.2.A(4) hereof, or alter the allocations specified in Article 6 hereof (except except, in any case, as permitted pursuant to Section 4.5Sections 4.2, 4.6, 4.7 and Section 7.3.C(2) 5.5 or 7.3.C(3) 7.3.C hereof), (iv) alter or modify in a manner that adversely affects any Partner the rights to an Exchange Redemption rights, Cash Amount or REIT Shares Amount as set forth in Section 8.615.1 hereof, and or amend or modify any related definitions hereof (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 7.3.D. Further7.3.D; provided, no however, that the consent of any individual Partner adversely affected shall not be required for any amendment or action described above 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 Limited Partners of such class or series. 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 in therein. Any such section.
E. The General amendment or action consented to by any Partner shall notbe effective as to that Partner, without notwithstanding the prior Consent of the Holders of Class A Limited Partnership Units, so long as the Holders of the Class A Common Limited Partnership Units have at least 10% of the aggregate Percentage Interests of the Partnership, on behalf of the Partnership, take any of the following actions:
(1) Dissolve the Partnership.
(2) Agree to or consummate any merger, consolidation, reorganization or other business combination to which the Partnership is a party; other than a merger, consolidation, reorganization or other business combination (a) which involves a merger, consolidation, reorganization or other business combination of the Initial General Partner in which the Holders of Class A Limited Partnership Units either (i) receive consideration that is cash per Class A Limited Partnership Unit equal to the cash amount received by a holder of one REIT Share in such transaction NY\5888591.8 times the Exchange Factor, or (ii) continue as Holders of Class A Limited Partnership Units and continue to have the exchange rights under Section 8.6 for REIT Shares, or (b) that is for the primary purpose of changing the state of formation of the Partnership and where this Agreement is amended only to reflect such different jurisdiction and any changes due to the law absence of such jurisdictionconsent by any other Partner.
(3) Sell, dispose, convey or otherwise transfer all or substantially all of the assets of the Partnership, in one or a series of transactions (other than a transaction where the Holders of Class A Limited Partnership Units receive consideration that is cash per Class A Limited Partnership Unit equal to the cash amount received by a holder of one REIT Share in such transaction times the Exchange Factor).
Appears in 1 contract
Restrictions on General Partner’s Authority. A. The General Partner may not not, without the Consent of all of the Limited Partners, take any action in contravention of this Agreement, Agreement including, without limitation:
(1a) take any action that would make it impossible to carry on the ordinary business of the Partnership, except as otherwise provided permitted in this AgreementAgreement (provided that this restriction shall not be deemed to restrict the sale, lease, transfer or disposition of all or substantially all of the Partnership's assets or the merger or combination of the Partnership with or into another entity, in each case as may otherwise be permitted herein);
(2b) possess Partnership property, or assign any rights in specific Partnership property, for other than a Partnership purpose except as otherwise provided permitted in this Agreement;
(3c) admit a Person as a Partner, except as otherwise provided permitted in this Agreement; NY\5888591.8;
(4d) 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 permitted herein or under the Act; or;
(5e) take any action or enter into any contract, mortgage, loan or other agreement that prohibits or restricts, or has the effect of prohibiting, would conflict with the ability of a the Partnership to perform its obligations under Section 8.6, conflict with the ability of the General Partner to exercise its option under Section 8.6, or conflict with the ability of any Limited Partner to exercise its rights under Section 8.6; or
(f) take any action which would cause the Partnership to an Exchange in fullbecome taxable as a corporation for federal income tax purposes. In addition, except with the written consent of such Limited Partner.
B. The Partnership may not, and the General Partner shall notmay not cause the Partnership to, without the prior Consent of holders of at least two-thirds of the Class A 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 transactionsPartnership Units:
(1a) Except as provided in Section 7.3.C., amend, modify or terminate this Agreement other than to reflect the admission, substitution, termination or withdrawal of partners pursuant to Article 12 hereof or the issuance of Partnership Units or Preferred Units in accordance with the terms of this Agreement.
(2) Make 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.;
(3b) Institute institute any proceeding for Bankruptcy bankruptcy on behalf of the Partnership.;
(4c) Approve act or acquiesce cause the taking of any action with respect to the transfer dissolution and winding up of the Partnership Interest or an election to continue the Partnership or to continue the business of the Partnership;
(d) issue additional Limited Partnership Interests or Limited Partnership Units (other than to Affiliates of the General Partner to any Person other than the Partnership.
(5) Admit into the Partnership any Additional or Substitute General Partners.
C. Notwithstanding Section 7.3.B, the General Partner shall have the power, without any consent of any 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, termination, or withdrawal of Partners or the issuance of Partnership Units or Preferred Units in accordance with this Agreement along with Section 4.2), authorize or create, or increase the authorized or issued amount of, any amendments related thereto; Senior Units, or reclassify any equity or equity-like security issued or to enter be issued by the Partnership into a mergerSenior Unit, consolidation or reorganization create, authorize or issue any obligations or security convertible into or evidencing the right to purchase any Senior Units; or
(e) exchange equity securities with, consolidate with, merge into or with, or convey, transfer or lease all or substantially all of its assets, to any corporation or other entity where such transaction would adversely affect the contractual protections of the Partnership that does not require Consent of the Holders of Class A Limited Partnership Units under Section 7.3.E(including those contained in Exhibit D); provided provided, however, that any such amendment does not eliminatefor purposes of this clause (e), restrict or modify the exchange rights occurrence of the Class A Limited Partners under Section 8.6 for REIT Shares without the Consent of the Class A Limited Partnersan equity securities exchange, unless such merger, consolidation or reorganization satisfies the conditions set forth in clause (i) a conveyance, transfer or (ii) lease of Section 7.3.E(2)(a); NY\5888591.8
(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) to amend the provisions of this Agreement to protect the qualification of the Initial General Partner as a REIT because of a change in applicable law (or an authoritative interpretation thereof), a ruling of the Internal Revenue Service or if the Initial General Partner has determined to cease qualifying as a REIT; and
(6) to modify, as set forth in the definition of “Capital Account,” the manner in which Capital Accounts are computed. The General Partner will provide notice to the Limited Partners when any action under this Section 7.3.C is taken.
D. Notwithstanding Section 7.3.B and 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’s interest in the Partnership into a general partner’s interest (except as the result of the General Partner acquiring such interest), (ii) modify the limited liability of a Limited Partner, (iii) alter rights of the Partner to receive distributions pursuant to Article 5 or Section 7.1.A(3), or the allocations specified in Article 6 (except as permitted pursuant to Section 4.5, 4.6, 4.7 and Section 7.3.C(2) or 7.3.C(3) hereof), (iv) alter or modify the rights to an Exchange or REIT Shares Amount as set forth in Section 8.6, and related definitions hereof or (v) amend this Section 7.3.D. 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 in such section.
E. The General Partner shall not, without the prior Consent of the Holders of Class A Limited Partnership Units, so long as the Holders of the Class A Common Limited Partnership Units have at least 10% of the aggregate Percentage Interests of the Partnership, on behalf of the Partnership, take any of the following actions:
(1) Dissolve the Partnership.
(2) Agree to or consummate any merger, consolidation, reorganization or other business combination to which the Partnership is a party; other than a merger, consolidation, reorganization or other business combination (a) which involves a merger, consolidation, reorganization or other business combination of the Initial General Partner in which the Holders of Class A Limited Partnership Units either (i) receive consideration that is cash per Class A Limited Partnership Unit equal to the cash amount received by a holder of one REIT Share in such transaction NY\5888591.8 times the Exchange Factor, or (ii) continue as Holders of Class A Limited Partnership Units and continue to have the exchange rights under Section 8.6 for REIT Shares, or (b) that is for the primary purpose of changing the state of formation of the Partnership and where this Agreement is amended only to reflect such different jurisdiction and any changes due to the law of such jurisdiction.
(3) Sell, dispose, convey or otherwise transfer all or substantially all of the Partnership's assets of the Partnershipshall not be deemed to adversely affect such contractual protections, in one or a series of transactions so long as (other than a transaction where the Holders of w) Class A Limited Partnership Units receive consideration that is cash per Interests (or securities of the surviving entity corresponding thereto, in the case of an equity securities exchange, merger or consolidation) remain outstanding with the terms thereof unchanged, except as may be necessary to reflect the occurrence of such transaction, (x) the surviving entity assumes the obligations of the Partnership with respect to Class A Limited Partnership Unit equal to the cash amount received by a holder Interests, and (y) such equity securities exchange, merger, consolidation, conveyance, transfer or lease does not result in breach of one REIT Share in such transaction times the Exchange FactorSection 8.5(f).
Appears in 1 contract
Restrictions on General Partner’s Authority. A. (a) The General Partner Partners may not not, without written approval of the specific act by the Limited Partners or by other written instrument executed and delivered by the Limited Partners subsequent to the date of this Agreement, take any action in contravention of this Agreement, including, without limitation:
except as otherwise provided in this Agreement, (1i) take committing any action act that would make it impossible to carry on the ordinary business of the Partnership, except as otherwise provided in this Agreement;
; (2ii) possess possessing Partnership property, or assign assigning any rights in specific Partnership property, for other than a Partnership purpose except as otherwise provided in this Agreement;
purpose; (3iii) admit admitting a Person as a Partner, except as otherwise provided ; (iv) amending this Agreement in this Agreement; NY\5888591.8any manner or (v) transferring either of their respective General Partner Interests.
(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, the ability of a Limited Partner to exercise its rights to an Exchange in full, except with the written consent of such Limited Partner.
B. The General Partner shall not, without the prior Consent of the Class A 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:
(1b) Except as provided in Section 7.3.C.Articles XII and XIV, amendno General Partner may sell, modify exchange or terminate this Agreement other than to reflect the admission, substitution, termination or withdrawal otherwise dispose of partners pursuant to Article 12 hereof or the issuance of Partnership Units or Preferred Units in accordance with the terms of this Agreement.
(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 substantially all of the Partnership.
's assets in a single transaction or a series of related transactions (3including by way of merger, consolidation or other combination) Institute any proceeding for Bankruptcy or approve on behalf of the Partnership.
(4) Approve or acquiesce to Partnership the transfer of the Partnership Interest of the General Partner to any Person other than the Partnership.
(5) Admit into the Partnership any Additional or Substitute General Partners.
C. Notwithstanding Section 7.3.Bsale, the General Partner shall have the power, without any consent of any 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, termination, or withdrawal of Partners or the issuance of Partnership Units or Preferred Units in accordance with this Agreement along with any amendments related thereto; or to enter into a merger, consolidation or reorganization of the Partnership that does not require Consent of the Holders of Class A Limited Partnership Units under Section 7.3.E; provided that any such amendment does not eliminate, restrict or modify the exchange rights of the Class A Limited Partners under Section 8.6 for REIT Shares without the Consent of the Class A Limited Partners, unless such merger, consolidation or reorganization satisfies the conditions set forth in clause (i) or (ii) of Section 7.3.E(2)(a); NY\5888591.8
(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) to amend the provisions of this Agreement to protect the qualification of the Initial General Partner as a REIT because of a change in applicable law (or an authoritative interpretation thereof), a ruling of the Internal Revenue Service or if the Initial General Partner has determined to cease qualifying as a REIT; and
(6) to modify, as set forth in the definition of “Capital Account,” the manner in which Capital Accounts are computed. The General Partner will provide notice to the Limited Partners when any action under this Section 7.3.C is taken.
D. Notwithstanding Section 7.3.B and 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’s interest in the Partnership into a general partner’s interest (except as the result of the General Partner acquiring such interest), (ii) modify the limited liability of a Limited Partner, (iii) alter rights of the Partner to receive distributions pursuant to Article 5 or Section 7.1.A(3), or the allocations specified in Article 6 (except as permitted pursuant to Section 4.5, 4.6, 4.7 and Section 7.3.C(2) or 7.3.C(3) hereof), (iv) alter or modify the rights to an Exchange or REIT Shares Amount as set forth in Section 8.6, and related definitions hereof or (v) amend this Section 7.3.D. 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 in such section.
E. The General Partner shall not, without the prior Consent of the Holders of Class A Limited Partnership Units, so long as the Holders of the Class A Common Limited Partnership Units have at least 10% of the aggregate Percentage Interests of the Partnership, on behalf of the Partnership, take any of the following actions:
(1) Dissolve the Partnership.
(2) Agree to or consummate any merger, consolidation, reorganization or other business combination to which the Partnership is a party; other than a merger, consolidation, reorganization or other business combination (a) which involves a merger, consolidation, reorganization or other business combination disposition of the Initial General Partner in which the Holders of Class A Limited Partnership Units either (i) receive consideration that is cash per Class A Limited Partnership Unit equal to the cash amount received by a holder of one REIT Share in such transaction NY\5888591.8 times the Exchange Factor, or (ii) continue as Holders of Class A Limited Partnership Units and continue to have the exchange rights under Section 8.6 for REIT Shares, or (b) that is for the primary purpose of changing the state of formation of the Partnership and where this Agreement is amended only to reflect such different jurisdiction and any changes due to the law of such jurisdiction.
(3) Sell, dispose, convey or otherwise transfer all or substantially all of the assets of the Partnership, without the approval of the Limited Partners; provided, however, that this provision shall not preclude or limit the General Partners' ability to mortgage, pledge, hypothecate or grant a security interest in one all or a series substantially all of transactions (other than a transaction where the Holders assets of Class A Limited the Partnership Units receive consideration that is cash per Class A Limited and shall not apply to any forced sale of any or all of the assets of the Partnership Unit equal pursuant to the cash amount received foreclosure of, or other realization upon, any such encumbrance. Without the approval of at least a Unit Majority, the General Partners shall not, on behalf of the MLP, (i) consent Alliance Resource Operating Partners, L.P. to any amendment to this Agreement or, except as expressly permitted by Section 7.9(d) of the MLP Agreement, take any action permitted to be taken by a holder Partner, in either case, that would have a material adverse effect on the MLP as a Partner or (ii) except as permitted under Sections 4.6, 11.1, 11.2 or 11.4 of one REIT Share in such transaction times the Exchange Factor)MLP Agreement, elect or cause the MLP to elect a successor general partner of the Partnership.
Appears in 1 contract
Samples: Agreement of Limited Partnership (Alliance Resource Partners Lp)
Restrictions on General Partner’s Authority. A. The General Partner may not take any action in contravention of this Agreement, including, without limitation:: NY\5888591.8
(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; NY\5888591.8;
(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, the ability of a Limited Partner to exercise its rights to an Exchange in full, except with the written consent of such Limited Partner.
B. The General Partner shall not, without the prior Consent of the Class A 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) Except as provided in Section 7.3.C., amend, modify or terminate this Agreement other than to reflect the admission, substitution, termination or withdrawal of partners pursuant to Article 12 hereof or the issuance of Partnership Units or Preferred Units in accordance with the terms of this Agreement.
(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.
(4) Approve or acquiesce to the transfer of the Partnership Interest of the General Partner to any Person other than the Partnership.
(5) Admit into the Partnership any Additional or Substitute General Partners.
C. Notwithstanding Section 7.3.B, the General Partner shall have the power, without any consent of any 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;; NY\5888591.8
(2) to reflect the admission, substitution, termination, or withdrawal of Partners or the issuance of Partnership Units or Preferred Units in accordance with this Agreement along with any amendments related thereto; or to enter into a merger, consolidation or reorganization of the Partnership that does not require Consent of the Holders of Class A Limited Partnership Units under Section 7.3.E; provided that any such amendment does not eliminate, restrict or modify the exchange rights of the Class A Limited Partners under Section 8.6 for REIT Shares without the Consent of the Class A Limited Partners, unless such merger, consolidation or reorganization satisfies the conditions set forth in clause (i) or (ii) of Section 7.3.E(2)(a); NY\5888591.8;
(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) to amend the provisions of this Agreement to protect the qualification of the Initial General Partner as a REIT because of a change in applicable law (or an authoritative interpretation thereof), a ruling of the Internal Revenue Service or if the Initial General Partner has determined to cease qualifying as a REIT; and
(6) to modify, as set forth in the definition of “Capital Account,” the manner in which Capital Accounts are computed. The General Partner will provide notice to the Limited Partners when any action under this Section 7.3.C is taken.
D. Notwithstanding Section 7.3.B and 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’s interest in the Partnership into a general partner’s interest (except as the result of the General Partner acquiring such interest), (ii) modify the limited liability of a Limited Partner, (iii) alter rights of the Partner to receive distributions pursuant to Article 5 or Section 7.1.A(3), or the allocations specified in Article 6 (except as permitted pursuant to Section 4.5, 4.6, 4.7 and Section 7.3.C(2) or 7.3.C(3) hereof), (iv) alter or modify the rights to an Exchange or REIT Shares Amount as set forth in Section 8.6, and related definitions hereof or (v) amend this Section 7.3.D. 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 in such section.
E. The General Partner shall not, without the prior Consent of the Holders of Class A Limited Partnership Units, so long as the Holders of the Class A Common Limited Partnership Units have at least 10% of the aggregate Percentage Interests of the Partnership, on behalf of the Partnership, take any of the following actions:: NY\5888591.8
(1) Dissolve the Partnership.
(2) Agree to or consummate any merger, consolidation, reorganization or other business combination to which the Partnership is a party; other than a merger, consolidation, reorganization or other business combination (a) which involves a merger, consolidation, reorganization or other business combination of the Initial General Partner in which the Holders of Class A Limited Partnership Units either (i) receive consideration that is cash per Class A Limited Partnership Unit equal to the cash amount received by a holder of one REIT Share in such transaction NY\5888591.8 times the Exchange Factor, or (ii) continue as Holders of Class A Limited Partnership Units and continue to have the exchange rights under Section 8.6 for REIT Shares, or (b) that is for the primary purpose of changing the state of formation of the Partnership and where this Agreement is amended only to reflect such different jurisdiction and any changes due to the law of such jurisdiction.
(3) Sell, dispose, convey or otherwise transfer all or substantially all of the assets of the Partnership, in one or a series of transactions (other than a transaction where the Holders of Class A Limited Partnership Units receive consideration that is cash per Class A Limited Partnership Unit equal to the cash amount received by a holder of one REIT Share in such transaction times the Exchange Factor).
Appears in 1 contract
Samples: Limited Partnership Agreement (Tanger Properties LTD Partnership /Nc/)
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 AgreementAgreement without the Consent of the Limited Partners, includingand may not, 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; NY\5888591.8
(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
(53) enter into any contract, mortgage, loan or other agreement that expressly prohibits or restrictsrestricts (a) the General Partner or the Partnership from performing its specific obligations under Section 15.1 hereof in full, or has the effect of prohibiting, the ability of (b) a Limited Partner to exercise from exercising its rights under Section 15.1 hereof to an Exchange effect a Redemption in full, except (c) a Limited Partner from exercising its rights under Section 20.6 hereof to effect a Series 1 CPOP Conversion, (d) a Limited Partner from exercising its rights under Section 22.6 hereof to effect a Series 2 CPOP Conversion or (e) a Limited Partner from exercising its rights under Section 23.6 hereof to effect a Series 3 CPOP Conversion, except, in the case of any of clauses (a), (b), (c) or (e), (x) with the written consent Consent of such each Limited PartnerPartner affected by the prohibition or restriction or (y) in connection with or as a result of a Termination Transaction that, in accordance with Section 11.2.B(i) and/or (ii), does not require the Consent of the Limited Partners.
B. The Except as provided in Section 7.3.C hereof, the General Partner shall not, without the prior Consent of the Class A 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) Except as provided in Section 7.3.C., amend, modify or terminate this Agreement other than to reflect the admission, substitution, termination or withdrawal of partners pursuant to Article 12 hereof or the issuance of Partnership Units or Preferred Units in accordance with the terms of this Agreement.
(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.
(4) Approve or acquiesce to the transfer of the Partnership Interest of the General Partner to any Person other than the Partnership.
(5) Admit into the Partnership any Additional or Substitute General Partners.
C. Notwithstanding Section 7.3.B7.3.B and 14.2 hereof but subject to the rights of any Holder of any Partnership Interest set forth in a Partnership Unit Designation, the General Partner shall have the power, without any the Consent of the Partners or the consent or approval of any Limited PartnersPartner or any other Person, 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, termination, substitution or withdrawal of Partners or Partners, the issuance Transfer of any Partnership Units or Preferred Units Interest, the termination of the Partnership in accordance with this Agreement along Agreement, or the adjustment of outstanding LTIP Units as contemplated by Section 16.3 or Performance Units as contemplated by Section 17.3, and to update the Register in connection with any amendments related thereto; such admission, substitution, withdrawal, Transfer or to enter into a merger, consolidation or reorganization of the Partnership that does not require Consent of the Holders of Class A Limited Partnership Units under Section 7.3.E; provided that any such amendment does not eliminate, restrict or modify the exchange rights of the Class A Limited Partners under Section 8.6 for REIT Shares without the Consent of the Class A Limited Partners, unless such merger, consolidation or reorganization satisfies the conditions set forth in clause (i) or (ii) of Section 7.3.E(2)(a); NY\5888591.8adjustment;
(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 set forth or amend the designations, preferences, conversion and other rights, voting powers, restrictions, limitations as to distributions, qualifications and terms and conditions of redemption of the Holders of any additional Partnership Interests issued pursuant to Article 4 (including any changes contemplated by Section 5.5 above);
(5) to satisfy any requirements, conditions, 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;
(56) (a) to amend reflect such changes as are reasonably necessary for the provisions of this Agreement to protect the qualification of the Initial General Partner to maintain its status as a REIT because or to satisfy the REIT Requirements, or (b) to reflect the Transfer of all or any part of a change in applicable law Partnership Interest among the General Partner and any Disregarded Entity with respect to the General Partner;
(7) to modify either or an authoritative interpretation thereof), a ruling both of the Internal Revenue Service manner in which items of Net Income or if the Initial General Partner has determined Net Loss are allocated pursuant to cease qualifying as a REIT; and
(6) to modify, as set forth in the definition of “Capital Account,” Article VI or the manner in which Capital Accounts are adjusted, computed. The , or maintained (but in each case only to the extent otherwise provided in this Agreement and as may be permitted under applicable law);
(8) to reflect the issuance of additional Partnership Interests in accordance with Section 4.2;
(9) as contemplated by the last sentence of Section 4.4;
(10) to reflect any other modification to this Agreement as is reasonably necessary for the business or operations of the Partnership or the General Partner will provide notice and which does not violate Section 7.3.D;
(11) to effect or facilitate a Termination Transaction that, in accordance with Section 11.2.B(i) and/or (ii), does not require the Consent of the Limited Partners when and, if the Partnership is the Surviving Partnership in any action under Termination Transaction, to modify Section 15.1 or any related definitions to provide that the holders of interests in such Surviving Partnership have rights that are consistent with Section 11.2B(ii);
(12) to reflect any change to the designation or terms of the Series B Preferred Units as set forth in Article 19 or otherwise in this Section 7.3.C is takenAgreement;
(13) to reflect the termination of the class of Series 1 CPOP Units if and from the time that all of the Series 1 CPOP Units shall no longer be, or be deemed to be, outstanding for any purpose;
(14) to reflect the termination of the class of Series 2 CPOP Units if and from the time that all of the Series 2 CPOP Units shall no longer be, or be deemed to be, outstanding for any purpose;
(15) to reflect any change to the designation or terms of the Series C Preferred Units as set forth in Article 21 or otherwise in this Agreement; and
(16) to reflect the termination of the class of Series 3 CPOP Units if and from the time that all of the Series 3 CPOP Units shall no longer be, or be deemed to be, outstanding for any purpose.
D. Notwithstanding Sections 7.3.B, 7.3.C (other than as set forth below in this Section 7.3.B 7.3.D) and 7.3.C 14.2 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 thereby, if such amendment or action would (i) convert a Limited Partner’s interest Partner Interest in the Partnership into a general partner’s interest General Partner Interest (except as the a result of the General Partner acquiring such interestPartnership Interest), (ii) adversely modify in any material respect the limited liability of a Limited Partner, (iii) alter the rights of the any Partner to receive the distributions to which such Partner is entitled pursuant to Article 5 or Section 7.1.A(3)13.2.A(4) hereof, or alter the allocations specified in Article 6 hereof (except except, in any case, as permitted pursuant to Section 4.5Sections 4.2, 4.65.5, 4.7 7.3.C (including clause (11) thereof) and Section 7.3.C(2) or 7.3.C(3) Article 6 hereof), (iv) alter or modify the rights to an Exchange Redemption rights, Cash Amount or REIT Shares Amount as set forth in Section 8.615.1 hereof (except, in any case, as permitted pursuant to clause (11) of Section 7.3.C hereof), (v) alter or modify Section 11.2 hereof (except as permitted pursuant to clause (11) of Section 7.3.C hereof), (vi) subject to Section 7.8.I, remove the powers and restrictions related definitions hereof to REIT Requirements or permitting the General Partner to avoid paying tax under Code Sections 857 or 4981 contained in Sections 7.1 and 7.3, (vii) alter or modify the Series 1 CPOP Cash Amount or conversion rights set forth in Section 20.6 hereof, (viii) alter or modify the Series 2 CPOP Cash Amount or conversion rights set forth in Section 22.6 hereof, (ix) alter or modify the Series 3 CPOP Cash Amount or conversion rights set forth in Section 23.6 hereof, or (vx) amend this Section 7.3.D. 7.3.D, or, in each case for all provisions referenced in this Section 7.3.D, amend or modify any related definitions or Exhibits (except as permitted pursuant to clause (11) of Section 7.3.C hereof). 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 in therein. Any such section.
E. The General amendment or action consented to by any Partner shall notbe effective as to that Partner, without notwithstanding the prior Consent of the Holders of Class A Limited Partnership Units, so long as the Holders of the Class A Common Limited Partnership Units have at least 10% of the aggregate Percentage Interests of the Partnership, on behalf of the Partnership, take any of the following actions:
(1) Dissolve the Partnership.
(2) Agree to or consummate any merger, consolidation, reorganization or other business combination to which the Partnership is a party; other than a merger, consolidation, reorganization or other business combination (a) which involves a merger, consolidation, reorganization or other business combination of the Initial General Partner in which the Holders of Class A Limited Partnership Units either (i) receive consideration that is cash per Class A Limited Partnership Unit equal to the cash amount received by a holder of one REIT Share in such transaction NY\5888591.8 times the Exchange Factor, or (ii) continue as Holders of Class A Limited Partnership Units and continue to have the exchange rights under Section 8.6 for REIT Shares, or (b) that is for the primary purpose of changing the state of formation of the Partnership and where this Agreement is amended only to reflect such different jurisdiction and any changes due to the law absence of such jurisdictionconsent by any other Partner.
(3) Sell, dispose, convey or otherwise transfer all or substantially all of the assets of the Partnership, in one or a series of transactions (other than a transaction where the Holders of Class A Limited Partnership Units receive consideration that is cash per Class A Limited Partnership Unit equal to the cash amount received by a holder of one REIT Share in such transaction times the Exchange Factor).
Appears in 1 contract
Samples: Limited Partnership Agreement (Rexford Industrial Realty, 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 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 propertyProperty, or assign assigning any rights in specific Partnership propertyProperty, for other than a Partnership purpose except as otherwise provided in this Agreement, including, without limitation, Section 7.10;
(3) admit admitting a Person as a Partner, except as otherwise provided in this Agreement; NY\5888591.8;
(4) 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 Section 10.4 hereof or under the Act; or
(5) enter entering into any contract, mortgage, loan or other agreement that prohibits or restricts, or has the effect of prohibitingprohibiting or restricting, the ability of (a) the General Partner, or the Partnership from satisfying its obligations under Section 8.6 hereof in full or (b) a Limited Partner to exercise from exercising its rights under Section 8.6 hereof to an Exchange effect a Redemption in full, except except, in either case, with the written consent of such Limited PartnerPartner affected by the prohibition or restriction.
B. The General Partner shall not, without the prior Consent of the Class A Limited Partners, undertake, on behalf of the Partnership, any of the following actions or enter into any transaction which that would have the effect of such transactions:
33 35 (1) Except except as provided in Section 7.3.C.Sections 4.2.A, 5.5, 6.2.B and 7.3.C hereof, 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 or the issuance of Partnership Units or Preferred Units in accordance with the terms of this Agreement.
(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.
(4) Approve or acquiesce to the transfer of the Partnership Interest of the General Partner to any Person other than the Partnership.
(5) Admit into the Partnership any Additional or Substitute General Partners.
C. Notwithstanding Section 7.3.B, the General Partner shall have the power, without any consent of any 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 Partnershereof;
(2) to reflect the admission, substitution, termination, or withdrawal of Partners or the issuance of Partnership Units or Preferred Units in accordance with this Agreement along with any amendments related thereto; or to enter into a merger, consolidation or reorganization of the Partnership that does not require Consent of the Holders of Class A Limited Partnership Units under Section 7.3.E; provided that any such amendment does not eliminate, restrict or modify the exchange rights of the Class A Limited Partners under Section 8.6 for REIT Shares without the Consent of the Class A Limited Partners, unless such merger, consolidation or reorganization satisfies the conditions set forth in clause (i) or (ii) of Section 7.3.E(2)(a); NY\5888591.8
(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) to amend the provisions of this Agreement to protect the qualification of the Initial General Partner as a REIT because of a change in applicable law (or an authoritative interpretation thereof), a ruling of the Internal Revenue Service or if the Initial General Partner has determined to cease qualifying as a REIT; and
(6) to modify, as set forth in the definition of “Capital Account,” the manner in which Capital Accounts are computed. The General Partner will provide notice to the Limited Partners when any action under this Section 7.3.C is taken.
D. Notwithstanding Section 7.3.B and 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’s interest in the Partnership into a general partner’s interest (except as the result of the General Partner acquiring such interest), (ii) modify the limited liability of a Limited Partner, (iii) alter rights of the Partner to receive distributions pursuant to Article 5 or Section 7.1.A(3), or the allocations specified in Article 6 (except as permitted pursuant to Section 4.5, 4.6, 4.7 and Section 7.3.C(2) or 7.3.C(3) hereof), (iv) alter or modify the rights to an Exchange or REIT Shares Amount as set forth in Section 8.6, and related definitions hereof or (v) amend this Section 7.3.D. 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 in such section.
E. The General Partner shall not, without the prior Consent of the Holders of Class A Limited Partnership Units, so long as the Holders of the Class A Common Limited Partnership Units have at least 10% of the aggregate Percentage Interests of the Partnership, on behalf of the Partnership, take any of the following actions:
(1) Dissolve the Partnership.
(2) Agree to or consummate any merger, consolidation, reorganization or other business combination to which the Partnership is a party; other than a merger, consolidation, reorganization or other business combination (a) which involves a merger, consolidation, reorganization or other business combination of the Initial General Partner in which the Holders of Class A Limited Partnership Units either (i) receive consideration that is cash per Class A Limited Partnership Unit equal to the cash amount received by a holder of one REIT Share in such transaction NY\5888591.8 times the Exchange Factor, or (ii) continue as Holders of Class A Limited Partnership Units and continue to have the exchange rights under Section 8.6 for REIT Shares, or (b) that is for the primary purpose of changing the state of formation of the Partnership and where this Agreement is amended only to reflect such different jurisdiction and any changes due to the law of such jurisdiction.
(3) Sell, dispose, convey or otherwise transfer all or substantially all of the assets of the Partnership, in one or a series of transactions (other than a transaction where the Holders of Class A Limited Partnership Units receive consideration that is cash per Class A Limited Partnership Unit equal to the cash amount received by a holder of one REIT Share in such transaction times the Exchange Factor).
Appears in 1 contract
Samples: Limited Partnership Agreement (Fortress Investment 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 a Person as a Partner, except as otherwise provided in this Agreement; NY\5888591.8;
(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 prohibitingprohibiting or restricting, the ability of a Limited Partner to exercise its rights to an Exchange a Redemption in full, except with the written consent of such Limited Partner.
B. The General Partner shall not, without the prior Consent of the Class A 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 which would have the effect of such transactions:
(1) except as provided in Section 7.3.E, amend, modify or terminate this Agreement other than to reflect the admission, substitution, termination or withdrawal of partners pursuant to 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) confess a judgment against the Partnership.
C. 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) Except as provided in Section 7.3.C., amend, modify or terminate this Agreement other than to reflect the admission, substitution, termination or withdrawal of partners pursuant to Article 12 hereof or the issuance of Partnership Units or Preferred Units in accordance with the terms of this Agreement.
(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.
(4) Approve approve or acquiesce to the transfer of the Partnership Interest of the General Partner to any Person other than the Partnership.; or
(52) Admit admit into the Partnership any Additional or 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 7.3.B7.3.F hereof, the General Partner shall have the power, without any consent the Consent of any 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, termination, or withdrawal of Partners or the issuance of Partnership Units or Preferred Units in accordance with this Agreement along with any amendments related thereto; or to enter into a merger, consolidation or reorganization of the Partnership that does not require Consent of the Holders of Class A Limited Partnership Units under Section 7.3.E; provided that any such amendment does not eliminate, restrict or modify the exchange rights of the Class A Limited Partners under Section 8.6 for REIT Shares without the Consent of the Class A Limited Partners, unless such merger, consolidation or reorganization satisfies the conditions set forth in clause (i) or (ii) of Section 7.3.E(2)(a); NY\5888591.8Agreement;
(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, 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) to amend reflect such changes as are reasonably necessary for the provisions of this Agreement to protect the qualification of the Initial General Partner to maintain its status as a REIT because of REIT, including changes which may be necessitated due to a change in applicable law (or an authoritative interpretation thereof), ) or a ruling of the Internal Revenue Service or if the Initial General Partner has determined to cease qualifying as a REITIRS; and
(6) to modify, as set forth in the definition of “Capital Account,” the manner in which Capital Accounts are computed. The General Partner will provide notice to the Limited Partners when any action under this Section 7.3.C 7.3.E is taken.
D. F. Notwithstanding Section 7.3.B Sections 7.3.B, 7.3.C, 7.3.D and 7.3.C 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 if such amendment or action would (i) convert a Limited Partner’s interest in the Partnership into a general partner’s interest (except as the result of the General Partner acquiring such interest), (ii) modify the limited liability of a Limited Partner, (iii) alter rights of the Partner to receive distributions pursuant to Article 5 or 5, Section 7.1.A(313.2.A(4), Article 16 or Article 19 or the allocations specified in Article 6 (except as permitted pursuant to Section 4.5, 4.6, 4.7 4.3 and Section 7.3.C(2) or 7.3.C(37.3.E(2) hereof), (iv) alter or modify the rights to an Exchange a Redemption or the REIT Shares Amount as set forth in Section 8.6, and related definitions hereof hereof, (v) alter the redemption or exchange rights as set forth in Sections 16.4, 16.7, 19.6 and 19.9 hereof, as applicable, or (vvi) amend this Section 7.3.D. 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 in such section.
E. The General Partner . 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 notnot be amended, and no action in contravention of Section 11.2 hereof shall be taken, without the prior Consent of the Holders of Class A Limited Partnership Units, so long as the Holders of the Class A Common Limited Partnership Units have at least 10% of the aggregate Percentage Interests of the Partnership, on behalf of the Partnership, take any of the following actions:
(1) Dissolve the PartnershipPartners.
(2) Agree to or consummate any merger, consolidation, reorganization or other business combination to which the Partnership is a party; other than a merger, consolidation, reorganization or other business combination (a) which involves a merger, consolidation, reorganization or other business combination of the Initial General Partner in which the Holders of Class A Limited Partnership Units either (i) receive consideration that is cash per Class A Limited Partnership Unit equal to the cash amount received by a holder of one REIT Share in such transaction NY\5888591.8 times the Exchange Factor, or (ii) continue as Holders of Class A Limited Partnership Units and continue to have the exchange rights under Section 8.6 for REIT Shares, or (b) that is for the primary purpose of changing the state of formation of the Partnership and where this Agreement is amended only to reflect such different jurisdiction and any changes due to the law of such jurisdiction.
(3) Sell, dispose, convey or otherwise transfer all or substantially all of the assets of the Partnership, in one or a series of transactions (other than a transaction where the Holders of Class A Limited Partnership Units receive consideration that is cash per Class A Limited Partnership Unit equal to the cash amount received by a holder of one REIT Share in such transaction times the Exchange Factor).
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 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 except as otherwise provided in this AgreementAgree ment, including, without limitation, Section 7.10;
(3) admit admitting a Person as a Partner, except as otherwise provided in this Agreement; NY\5888591.8;
(4) 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 Section 10.4 hereof or under the Act; or
(5) enter entering into any contract, mortgage, loan or other agreement that prohibits or restricts, or has the effect of prohibitingprohibiting or restricting, the ability of (a) the General Partner, or the Partnership from satisfying its obligations under Section 8.6 hereof in full or (b) a Limited Partner to exercise from exercising its rights under Section 8.6 hereof to an Exchange effect a Redemption in full, except except, in either case, with the written consent of such Limited PartnerPartner affected by the prohibition or restriction.
B. The General Partner shall not, without the prior Consent of the Class A Limited Partners, undertake, on behalf of the Partnership, any of the following actions or enter into any transaction which that would have the effect of such transactions:
(1) Except except as provided in Section 7.3.C.Sections 4.2.A, 5.5, 6.2.B and 7.3.C hereof, 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 or the issuance of Partnership Units or Preferred Units in accordance with the terms of this Agreement.hereof;
(2) Make 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
(3) Institute institute any proceeding for Bankruptcy bankruptcy on behalf of the Partnership.
(4) Approve or acquiesce to the transfer of the Partnership Interest of the General Partner to any Person other than the Partnership.
(5) Admit into the Partnership any Additional or Substitute General Partners.
C. Notwithstanding Section 7.3.B7.3.B hereof, the General Partner shall have the power, without any consent the Consent of any 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, termination, substitution or withdrawal of Partners or the issuance termination of the Partnership Units or Preferred Units in accordance with this Agreement along Agreement, and to amend Exhibit A in connection with any amendments related thereto; such admission, substitution or to enter into a merger, consolidation or reorganization of the Partnership that does not require Consent of the Holders of Class A Limited Partnership Units under Section 7.3.E; provided that any such amendment does not eliminate, restrict or modify the exchange rights of the Class A Limited Partners under Section 8.6 for REIT Shares without the Consent of the Class A Limited Partners, unless such merger, consolidation or reorganization satisfies the conditions set forth in clause (i) or (ii) of Section 7.3.E(2)(a); NY\5888591.8withdrawal;
(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) to amend the provisions of this Agreement to protect the qualification of the Initial General Partner as a REIT because of a change in applicable law (or an authoritative interpretation thereof), a ruling of the Internal Revenue Service or if the Initial General Partner has determined to cease qualifying as a REIT; and
(6) to modify, as set forth in the definition of “Capital Account,” the manner in which Capital Accounts are computed. The General Partner will provide notice to the Limited Partners when any action under this Section 7.3.C is taken.
D. Notwithstanding Section 7.3.B and 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’s interest in the Partnership into a general partner’s interest (except as the result of the General Partner acquiring such interest), (ii) modify the limited liability of a Limited Partner, (iii) alter rights of the Partner to receive distributions pursuant to Article 5 or Section 7.1.A(3), or the allocations specified in Article 6 (except as permitted pursuant to Section 4.5, 4.6, 4.7 and Section 7.3.C(2) or 7.3.C(3) hereof), (iv) alter or modify the rights to an Exchange or REIT Shares Amount as set forth in Section 8.6, and related definitions hereof or (v) amend this Section 7.3.D. 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 in such section.
E. The General Partner shall not, without the prior Consent of the Holders of Class A Limited Partnership Units, so long as the Holders of the Class A Common Limited Partnership Units have at least 10% of the aggregate Percentage Interests of the Partnership, on behalf of the Partnership, take any of the following actions:
(1) Dissolve the Partnership.
(2) Agree to or consummate any merger, consolidation, reorganization or other business combination to which the Partnership is a party; other than a merger, consolidation, reorganization or other business combination (a) which involves a merger, consolidation, reorganization or other business combination of the Initial General Partner in which the Holders of Class A Limited Partnership Units either (i) receive consideration that is cash per Class A Limited Partnership Unit equal to the cash amount received by a holder of one REIT Share in such transaction NY\5888591.8 times the Exchange Factor, or (ii) continue as Holders of Class A Limited Partnership Units and continue to have the exchange rights under Section 8.6 for REIT Shares, or (b) that is for the primary purpose of changing the state of formation of the Partnership and where this Agreement is amended only to reflect such different jurisdiction and any changes due to the law of such jurisdiction.
(3) Sell, dispose, convey or otherwise transfer all or substantially all of the assets of the Partnership, in one or a series of transactions (other than a transaction where the Holders of Class A Limited Partnership Units receive consideration that is cash per Class A Limited Partnership Unit equal to the cash amount received by a holder of one REIT Share in such transaction times the Exchange Factor).
Appears in 1 contract
Samples: Limited Partnership Agreement (Northstar Capital Investment Corp /Md/)
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; NY\5888591.8or
(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, the ability of a Limited Partner to exercise its rights to an Exchange in full, except with the written consent of such Limited Partner.
B. The General Partner shall not, without the prior Consent of the Class A 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) Except except as provided in Section 7.3.C.Sections 7.1(A) and 7.3.D hereof, amend, modify or terminate this Agreement other than to reflect the admission, substitution, termination or withdrawal of partners pursuant to Article 12 hereof or the issuance of Partnership Units or Preferred Units in accordance with the terms of this Agreement.hereof;
(2) Make 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
(3) Institute institute any proceeding for Bankruptcy bankruptcy on behalf of the Partnership.;
(4) Approve approve or acquiesce to the transfer of the Partnership Interest of the General Partner to any Person other than the Partnership.;
(5) Admit admit into the Partnership any Additional additional or Substitute substitute General Partners; or
(6) except as provided in Section 7.9, take title to any property of the Partnership other than in the name of the Partnership or a Property Partnership.
C. If the aggregate Limited Partner Interests of all Limited Partners represents 10.0% 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, to dissolve the Partnership.
D. Notwithstanding Sections 7.3.B and 7.3.C hereof, but subject to Section 7.3.B7.3.E hereof, the General Partner shall have the power, without any consent the Consent of any 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 other Partners;
(2) to reflect the issuance of additional Partnership Interests pursuant to Sections 4.3.C and 4.4 hereof or the admission, substitution, termination, or withdrawal of Partners or the issuance of Partnership Units or Preferred Units in accordance with this Agreement along with any amendments related thereto; or to enter into a merger, consolidation or reorganization of the Partnership that does not require Consent of the Holders of Class A Limited Partnership Units under Section 7.3.E; provided that any such amendment does not eliminate, restrict or modify the exchange rights of the Class A Limited Partners under Section 8.6 for REIT Shares without the Consent of the Class A Limited Partners, unless such merger, consolidation or reorganization satisfies the conditions set forth in clause (i) or (ii) of Section 7.3.E(2)(a); NY\5888591.8Agreement;
(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, 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) to amend reflect such changes as are reasonably necessary for the provisions of this Agreement to protect the qualification of the Initial General Partner to maintain its status as a REIT because of REIT, including changes which may be necessitated due to a change in applicable law (or an authoritative interpretation thereof), ) or a ruling of the Internal Revenue Service or if the Initial General Partner has determined to cease qualifying as a REITIRS; and
(6) to modify, as set forth in the definition of “Capital Account,” the manner in which Capital Accounts are computed. The General Partner will provide notice to the Limited other Partners when any action under this Section 7.3.C 7.3.D is taken.
D. E. Notwithstanding Section 7.3.B Sections 7.3.B, 7.3.C, and 7.3.C 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 affected if such amendment or action would (i1) convert a Limited Partner’s interest in the Partnership into a general partner’s interest (except as the result of the General Partner acquiring such interest), (ii2) modify the limited liability of a Limited Partner, (iii3) alter rights of the Partner to receive distributions pursuant to Article 5 or Section 7.1.A(3)13.2.A(4) hereof, or the allocations specified in Article 6 (except as permitted pursuant to Section 4.5, 4.6, 4.7 4.3 and Section 7.3.C(2) or 7.3.C(37.3.D(2) hereof), (iv4) alter or modify reduce the rights percentage of Partners required to an Exchange or REIT Shares Amount as set forth consent to any matter in Section 8.6, and related definitions hereof this Agreement or (v5) amend this Section 7.3.D. 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 in such section.
E. The General Partner . In addition, notwithstanding Sections 7.3.B, 7.3.C and 7.3.D hereof, Section 11.2 hereof shall notnot be amended, and no action in contravention of Section 11.2 hereof shall be taken, without the prior Consent of the Holders of Class A Limited Partnership Units, so long as the Holders of the Class A Common Limited Partnership Units have at least 10% of the aggregate Percentage Interests of the Partnership, on behalf of the Partnership, take any of the following actions:
(1) Dissolve the PartnershipPartners.
(2) Agree to or consummate any merger, consolidation, reorganization or other business combination to which the Partnership is a party; other than a merger, consolidation, reorganization or other business combination (a) which involves a merger, consolidation, reorganization or other business combination of the Initial General Partner in which the Holders of Class A Limited Partnership Units either (i) receive consideration that is cash per Class A Limited Partnership Unit equal to the cash amount received by a holder of one REIT Share in such transaction NY\5888591.8 times the Exchange Factor, or (ii) continue as Holders of Class A Limited Partnership Units and continue to have the exchange rights under Section 8.6 for REIT Shares, or (b) that is for the primary purpose of changing the state of formation of the Partnership and where this Agreement is amended only to reflect such different jurisdiction and any changes due to the law of such jurisdiction.
(3) Sell, dispose, convey or otherwise transfer all or substantially all of the assets of the Partnership, in one or a series of transactions (other than a transaction where the Holders of Class A Limited Partnership Units receive consideration that is cash per Class A Limited Partnership Unit equal to the cash amount received by a holder of one REIT Share in such transaction times the Exchange Factor).
Appears in 1 contract
Samples: Limited Partnership Agreement (Prime Group Realty Trust)
