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Exhibit 10.1
FORM OF
AMENDMENT AND RESTATEMENT OF
AGREEMENT OF LIMITED PARTNERSHIP
OF
TOWER REALTY OPERATING PARTNERSHIP, L.P.
______ __, 1997
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TABLE OF CONTENTS
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ARTICLE 1 DEFINED TERMS...................................................................................1
ARTICLE 2 ORGANIZATIONAL MATTERS.........................................................................13
2.1 Formation.............................................................................13
2.2 Name..................................................................................14
2.3 Registered Office and Agent; Principal Office.........................................14
2.4 Power of Attorney.....................................................................14
2.5 Term..................................................................................16
ARTICLE 3 PURPOSE........................................................................................16
3.1 Purpose and Business..................................................................16
3.2 Powers................................................................................17
ARTICLE 4 CAPITAL CONTRIBUTIONS..........................................................................18
4.1 Capital Contributions of the Partners.................................................18
4.2 Additional Funds; Restrictions on the General Partner.................................18
4.3 Issuance of Additional Partnership Interests; Admission
of Additional Limited Partners........................................................20
4.4 Contribution of Proceeds of Issuance of REIT Stock....................................21
4.5 Repurchase of REIT Stock; Shares-In-Trust.............................................21
4.6 No Third-Party Beneficiary............................................................22
4.7 No Interest; No Return................................................................22
4.8 No Preemptive Rights..................................................................23
ARTICLE 5 DISTRIBUTIONS..................................................................................23
5.1 Regular Distributions.................................................................23
5.2 Qualification as a REIT...............................................................23
5.3 Withholding...........................................................................24
5.4 Additional Partnership Interests......................................................24
5.5 Distributions Upon Liquidation........................................................24
ARTICLE 6 ALLOCATIONS....................................................................................24
6.1 Allocations...........................................................................24
6.2 Revisions to Allocations to Reflect Issuance of Partnership Interests.................24
ARTICLE 7 MANAGEMENT AND OPERATIONS OF BUSINESS..........................................................25
7.1 Management............................................................................25
7.2 Certificate of Limited Partnership....................................................29
7.3 Reimbursement of the General Partner..................................................30
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7.4 Outside Activities of the General Partner.............................................31
7.5 Contracts with Affiliates.............................................................31
7.6 Indemnification.......................................................................32
7.7 Liability of the General Partner......................................................34
7.8 Other Matters Concerning the General Partner..........................................35
7.9 Title to Partnership Assets...........................................................36
7.10 Reliance by Third Parties.............................................................36
ARTICLE 8 RIGHTS AND OBLIGATIONS OF LIMITED PARTNERS.....................................................37
8.1 Limitation of Liability...............................................................37
8.2 Management of Business................................................................37
8.3 Outside Activities of Limited Partners................................................38
8.4 Return of Capital.....................................................................38
8.5 Rights of Limited Partners Relating to the Partnership................................39
8.6 Exchange Rights Agreement.............................................................40
ARTICLE 9 BOOKS, RECORDS, ACCOUNTING AND REPORTS.........................................................40
9.1 Records and Accounting................................................................40
9.2 Fiscal Year...........................................................................40
9.3 Reports...............................................................................41
ARTICLE 10 TAX MATTERS....................................................................................41
10.1 Preparation of Tax Returns............................................................41
10.2 Tax Elections.........................................................................41
10.3 Tax Matters Partner...................................................................42
10.4 Organizational Expenses...............................................................44
10.5 Withholding...........................................................................44
ARTICLE 11 TRANSFERS AND WITHDRAWALS......................................................................45
11.1 Transfer..............................................................................45
11.2 Transfer of the General Partner's General Partner Interest............................46
11.3 Limited Partners' Rights to Transfer..................................................48
11.4 Substituted Limited Partners..........................................................49
11.5 Assignees.............................................................................50
11.6 General Provisions....................................................................51
ARTICLE 12 ADMISSION OF PARTNERS..........................................................................52
12.1 Admission of Successor General Partner................................................52
12.2 Admission of Additional Limited Partners..............................................53
12.3 Amendment of Agreement and Certificate of Limited Partnership.........................54
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ARTICLE 13 DISSOLUTION, LIQUIDATION AND TERMINATION.......................................................54
13.1 Dissolution...........................................................................54
13.2 Winding Up............................................................................55
13.3 No Obligation to Contribute Deficit...................................................57
13.4 Rights of Limited Partners............................................................58
13.5 Notice of Dissolution.................................................................58
13.6 Termination of Partnership and Cancellation of Certificate
of Limited Partnership................................................................58
13.7 Reasonable Time for Winding-Up........................................................58
13.8 Waiver of Partition...................................................................58
ARTICLE 14 AMENDMENT OF PARTNERSHIP AGREEMENT; MEETINGS...................................................59
14.1 Amendments............................................................................59
14.2 Meetings of the Partners..............................................................61
ARTICLE 15 GENERAL PROVISIONS.............................................................................62
15.1 Addresses and Notice..................................................................62
15.2 Titles and Captions...................................................................62
15.3 Pronouns and Plurals..................................................................63
15.4 Further Action........................................................................63
15.5 Binding Effect........................................................................63
15.6 Creditors.............................................................................63
15.7 Waiver................................................................................63
15.8 Counterparts..........................................................................63
15.9 Applicable Law........................................................................63
15.10 Invalidity of Provisions..............................................................64
15.11 Entire Agreement......................................................................64
15.12 Merger................................................................................64
15.13 No Rights as Stockholders.............................................................64
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AMENDMENT AND RESTATEMENT
OF
AGREEMENT OF LIMITED PARTNERSHIP
OF
TOWER REALTY OPERATING PARTNERSHIP, L.P.
THIS AMENDMENT AND RESTATEMENT OF AGREEMENT OF LIMITED
PARTNERSHIP OF TOWER REALTY OPERATING PARTNERSHIP, L.P. (this
"AGREEMENT"), dated as of ________ __, 1997, is entered into by and among Tower
Realty Trust, Inc., a Maryland corporation, as general partner (the "GENERAL
PARTNER"), and the Limited Partners;
WHEREAS, the General Partner and the Limited Partners desire to amend
and restate the Agreement of Limited Partnership of Tower Realty Operating
Partnership, L.P., dated as of March 24, 1997 (the "Original Agreement") in its
entirety;
NOW THEREFORE, in consideration of the mutual covenants herein
contained, and other valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties do hereby agree that the Original
Agreement is amended and restated as follows:
ARTICLE 1
DEFINED TERMS
The following definitions shall be for all purposes, unless otherwise
clearly indicated to the contrary, applied to the terms used in this Agreement.
"ACT" means the Delaware Revised Uniform Limited Partnership Act, as
amended from time to time, and any successor to such statute.
"ADDITIONAL LIMITED PARTNER" means a Person that has executed and
delivered an additional limited partner signature page in the form attached
hereto, has been admitted to the Partnership as a Limited Partner pursuant to
Section 4.3 hereof and that is shown as such on the books and records of the
Partnership. The Initial Limited Partner may also be an Additional Limited
Partner.
"ADJUSTED CAPITAL ACCOUNT DEFICIT" means with respect to any Partner,
the negative balance, if any, in such Partner's Capital Account as of the end of
any relevant fiscal year, determined after giving effect to the following
adjustments:
(a) credit to such Capital Account any portion of such
negative balance which such Partner (i) is treated as obligated to
restore to the Partnership pursuant to the
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provisions of Section 1.704-1(b)(2)(ii)(c) of the Regulations, or (ii)
is deemed to be obligated to restore to the Partnership pursuant to the
penultimate sentences of Sections 1.704-2(g)(1) and 1.704-2(i)(5) of
the Regulations; and
(b) debit to such Capital Account the items described in
Sections 1.704- 1(b)(2)(ii)(d)(4), (5) and (6) of the Regulations.
"ADJUSTED CONTRIBUTION" means the Capital Contributions of any Partner
reduced by the total distributions to such Partner from Capital Events. With
respect to the General Partner, the Adjusted Contribution shall include the
difference, if any, between gross proceeds from the future issuance of REIT
Stock, if any, and the proceeds actually received by the General Partner.
"AFFILIATE" means,
(a) with respect to any individual Person, any member of the
Immediate Family of such Person or a trust established for the benefit
of such member, or
(b) with respect to any Entity, any Person which, directly or
indirectly through one or more intermediaries, controls, is controlled
by, or is under common control with, any such Entity.
"AGREEMENT" means this Agreement of Limited Partnership, as originally
executed and as amended, modified, supplemented or restated from time to time,
as the context requires.
"ARTICLES OF INCORPORATION" means the General Partner's Articles of
Incorporation, filed with the Maryland State Department of Assessments and
Taxation, as amended, modified, supplemented or restated from time to time, as
the context requires.
"ASSIGNEE" means a Person to whom one or more OP Units have been
transferred in a manner permitted under this Agreement, but who has not become a
Substituted Limited Partner, and who has the rights set forth in Section 11.5.
"AVAILABLE CASH" means, with respect to the applicable period of
measurement (i.e., any period beginning on the first day of the fiscal year,
quarter or other period commencing immediately after the last day of the fiscal
year, quarter or other applicable period for purposes of the prior calculation
of Available Cash for or with respect to which a distribution has been made, and
ending on the last day of the fiscal year, quarter or other applicable period
immediately preceding the date of the calculation), the excess, if any, as of
such date, of
(a) the gross cash receipts of the Partnership for such period
from all sources whatsoever, including, without limitation, the
following:
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(i) all rents, revenues, income and proceeds derived
by the Partnership from its operations, including, without
limitation, distributions received by the Partnership from any
Entity in which the Partnership has an interest;
(ii) all proceeds and revenues received by the
Partnership on account of any sales of office buildings,
development parcels or other property of the Partnership or as
a refinancing of or payment of principal, interest, costs,
fees, penalties or otherwise on account of any borrowings or
loans made by the Partnership or financings or refinancings of
any property of the Partnership;
(iii) the amount of any insurance proceeds and
condemnation awards received by the Partnership;
(iv) all capital contributions or loans received by
the Partnership from its Partners;
(v) all cash amounts previously reserved by the
Partnership, to the extent such amounts are no longer needed
for the specific purposes for which such amounts were
reserved; and
(vi) the proceeds of liquidation of the Partnership's
property in accordance with this Agreement;
over
(b) the sum of:
(i) all operating costs and expenses, including taxes
and other expenses of the properties directly and indirectly
held by the Partnership and capital expenditures made during
such period (without deduction, however, for any capital
expenditures, charges for Depreciation or other expenses not
paid in cash or expenditures from reserves described in (viii)
below);
(ii) all costs and expenses expended or paid during
such period in connection with the sale or other disposition,
or financing or refinancing, of the property directly or
indirectly held by the Partnership or the recovery of
insurance or condemnation proceeds;
(iii) all fees provided for under this Agreement;
(iv) all debt service, including principal and
interest, paid during such period on all indebtedness
(including under any line of credit) of the Partnership;
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(v) all capital contributions, advances,
reimbursements, loans or similar payments made to any Person
in which the Partnership has an interest;
(vi) all loans made by the Partnership in accordance
with the terms of this Agreement;
(vii) all reimbursements to the General Partner or
its Affiliates during such period; and
(viii) any new reserves or increases in reserves
determined by the General Partner in its sole and absolute
discretion to be necessary for working capital, capital
improvements, payments of periodic expenditures, debt service
or other purposes for the Partnership or any Person in which
the Partnership has an interest.
Notwithstanding the foregoing, Available Cash shall not include any cash
received or reductions in reserves, or take into account any disbursements made
or reserves established, after commencement of the dissolution and liquidation
of the Partnership.
"CAPITAL ACCOUNT" means with respect to any Partner, the Capital
Account maintained for such Partner in accordance with the following provisions:
(a) to each Partner's Capital Account there shall be credited
(i) such Partner's Capital Contributions,
(ii) such Partner's distributive share of Net Income
and any items in the nature of income or gain which are
specially allocated to such Partner pursuant to Paragraphs 1
and 2 of Exhibit B and
(iii) the amount of any Partnership liabilities
assumed by such Partner or which are secured by any asset
distributed to such Partner;
(b) to each Partner's Capital Account there shall be debited
(i) the amount of cash and the Gross Asset Value of
any property distributed to such Partner pursuant to any
provision of this Agreement,
(ii) such Partner's distributive share of Net Losses
and any items in the nature of expenses or losses which are
specially allocated to such Partner pursuant to Paragraphs 1
and 2 of Exhibit B and
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(iii) the amount of any liabilities of such Partner
assumed by the Partnership or which are secured by any asset
contributed by such Partner to the Partnership; and
(c) in the event all or a portion of a Partnership Interest is
transferred in accordance with the terms of this Agreement, the
transferee shall succeed to the Capital Account of the transferor to
the extent it relates to the transferred Partnership Interest.
The foregoing provisions and the other provisions of this Agreement relating to
the maintenance of Capital Accounts are intended to comply with Sections
1.704-1(b) and 1.704-2 of the Regulations, and shall be interpreted and applied
in a manner consistent with such Regulations. In the event the General Partner
shall reasonably determine that it is prudent to modify the manner in which the
Capital Accounts, or any debits or credits thereto (including, without
limitation, debits or credits relating to liabilities which are secured by
contributed or distributed assets or which are assumed by the Partnership, the
General Partner or any Limited Partner) are computed in order to comply with
such Regulations, the General Partner may make such modification; provided that
it would not cause the amounts distributable to any Partner pursuant to Article
13 hereof upon the dissolution of the Partnership to vary from the amount
contemplated as set forth in Section 2(g) of Exhibit B.
"CAPITAL CONTRIBUTION" means, with respect to any Partner, any cash,
cash equivalents or the Gross Asset Value of property which such Partner
contributes or is deemed to contribute to the Partnership pursuant to Article 4
hereof.
"CAPITAL EVENT" means any Partnership transaction not in the ordinary
course of its business including, without limitation, principal payments,
prepayments, the incurrence of prepayment penalties, sales, exchanges,
foreclosures or other dispositions of property directly or indirectly owned by
the Partnership, recoveries of damage awards and insurance proceeds not used to
rebuild (other than the receipt of contributions to the capital of the
Partnership and business or rental interruption insurance proceeds not used to
rebuild).
"CERTIFICATE" means the Certificate of Limited Partnership relating to
the Partnership to be filed in the form of Exhibit C hereto as soon as
practicable after the date hereof in the office of the Delaware Secretary of
State, as amended from time to time in accordance with the terms hereof and the
Act.
"CODE" means the Internal Revenue Code of 1986, as amended and in
effect from time to time, as interpreted by the applicable regulations
thereunder. Any reference herein to a specific section or sections of the Code
shall be deemed to include a reference to any corresponding provision of future
law.
"CONSENT" means the consent or approval of a proposed action by a
Partner given in accordance with Section 14.2 hereof.
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"CONTRIBUTED PROPERTY" means each property, partnership interest,
contract right or other asset, in such form as may be permitted by the Act,
contributed or deemed contributed to the Partnership by any Partner (including
deemed contributions to the Partnership on termination and reconstitution
thereof pursuant to Section 708 of the Code).
"DEPRECIATION" means, with respect to any asset of the Partnership for
any fiscal year or other period, the depreciation, depletion, amortization or
other cost recovery deduction, as the case may be, allowed or allowable for
federal income tax purposes in respect of such asset for such fiscal year or
other period; provided, however, that except as otherwise provided in Section
1.704-2 of the Regulations, if there is a difference between the Gross Asset
Value (including the Gross Asset Value, as increased pursuant to paragraph (d)
of the definition of Gross Asset Value) and the adjusted tax basis of such asset
at the beginning of such fiscal year or other period, Depreciation for such
asset shall be an amount that bears the same ratio to the beginning Gross Asset
Value of such asset as the federal income tax depreciation, depletion,
amortization or other cost recovery deduction for such fiscal year or other
period bears to the beginning adjusted tax basis of such asset; provided,
further, that if the federal income tax depreciation, depletion, amortization or
other cost recovery deduction for such asset for such fiscal year or other
period is zero, Depreciation of such asset shall be determined with reference to
the beginning Gross Asset Value of such asset using any reasonable method
selected by the General Partner.
"EFFECTIVE DATE" means the date of closing of the initial offering of
REIT Stock by the General Partner.
"ENTITY" means any general partnership, limited partnership,
corporation, joint venture, trust, business trust, real estate investment trust,
limited liability company, limited liability partnership, cooperative or
association.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time (or any corresponding provisions of succeeding laws).
"EXCHANGE FACTOR" has the meaning set forth in the Exchange Rights
Agreement.
"EXCHANGE RIGHT" has the meaning set forth in the Exchange Rights
Agreement.
"EXCHANGE RIGHTS AGREEMENT" has the meaning set forth in Section 8.6.
"GAAP" means United States generally accepted accounting principles, as
in effect from time to time.
"GENERAL PARTNER" means Tower Realty Trust, Inc., a Maryland
corporation, and any successor as general partner of the Partnership.
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"GENERAL PARTNER INTEREST" means a Partnership Interest held by the
General Partner, in its capacity as general partner. A General Partner Interest
may be expressed as a number of OP Units.
"GROSS ASSET VALUE" means, with respect to any asset of the
Partnership, such asset's adjusted basis for federal income tax purposes, except
as follows:
(a) the initial Gross Asset Value of any asset contributed by
a Partner to the Partnership shall be the gross fair market value of
such asset, without reduction for liabilities, as determined by the
contributing Partner and the Partnership on the date of contribution
thereof;
(b) if the General Partner reasonably determines that an
adjustment is necessary or appropriate to reflect the relative economic
interests of the Partners, the Gross Asset Values of all Partnership
assets shall be adjusted in accordance with Sections
1.704-1(b)(2)(iv)(f) and (g) of the Regulations to equal their
respective gross fair market values, without reduction for liabilities,
as reasonably determined by the General Partner, as of the following
times:
(i) a Capital Contribution (other than a de minimis
Capital Contribution) to the Partnership by a new or existing
Partner as consideration for a Partnership Interest; or
(ii) the distribution by the Partnership to a Partner
of more than a de minimis amount of Partnership assets as
consideration for the repurchase of a Partnership Interest; or
(iii) the liquidation of the Partnership within the
meaning of Section 1.704-1(b)(2)(ii)(g) of the Regulations;
(c) the Gross Asset Values of Partnership assets distributed
to any Partner shall be the gross fair market values of such assets
(taking Section 7701(g) of the Code into account) without reduction for
liabilities, as reasonably determined by the General Partner as of the
date of distribution; and
(d) the Gross Asset Values of Partnership assets shall be
increased (or decreased) to reflect any adjustments to the adjusted
basis of such assets pursuant to Sections 734(b) or 743(b) of the Code,
but only to the extent that such adjustments are taken into account in
determining Capital Accounts pursuant to Section 1.704- 1(b)(2)(iv)(m)
of the Regulations (as set forth in Exhibit B); provided, however, that
Gross Asset Values shall not be adjusted pursuant to this paragraph (d)
to the extent that the General Partner reasonably determines that an
adjustment pursuant to paragraph (b) above is necessary or appropriate
in connection with a transaction that would otherwise result in an
adjustment pursuant to this paragraph (d).
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At all times, Gross Asset Values shall be adjusted by any Depreciation taken
into account with respect to the Partnership's assets for purposes of computing
Net Income and Net Loss.
"IMMEDIATE FAMILY" means, with respect to any individual, such
individual's spouse, parents, parents-in-law, children, nephews, nieces,
brothers, sisters, brothers-in-law, sisters-in-law, stepchildren, sons-in-law
and daughters-in-law or any trust solely for the benefit of any of the foregoing
family members whose sole beneficiaries include the foregoing family members.
"INCAPACITY" or "INCAPACITATED" means,
(a) as to any individual Partner, death, total physical
disability or entry by a court of competent jurisdiction adjudicating
him incompetent to manage his person or his estate;
(b) as to any corporation which is a Partner, the filing of a
certificate of dissolution, or its equivalent, for the corporation or
the revocation of its charter;
(c) as to any partnership which is a Partner, the dissolution
and commencement of winding up of the partnership;
(d) as to any estate which is a Partner, the distribution by
the fiduciary of the estate's entire interest in the Partnership;
(e) as to any trustee of a trust which is a Partner, the
termination of the trust (but not the substitution of a new trustee);
or
(f) as to any Partner, the bankruptcy of such Partner, which
shall be deemed to have occurred when
(i) the Partner commences a voluntary proceeding seeking
liquidation, reorganization or other relief under any bankruptcy,
insolvency or other similar law now or hereafter in effect;
(ii) the Partner is adjudged as bankrupt or
insolvent, or a final and nonappealable order for relief under
any bankruptcy, insolvency or similar law now or hereafter in
effect has been entered against the Partner;
(iii) the Partner executes and delivers a general
assignment for the benefit of the Partner's creditors;
(iv) the Partner files an answer or other pleading
admitting or failing to contest the material allegations of a
petition filed against the Partner in any proceeding of the
nature described in clause (ii) above;
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(v) the Partner seeks, consents to or acquiesces in
the appointment of a trustee, receiver or liquidator for the
Partner or for all or any substantial part of the Partner's
properties;
(vi) any proceeding seeking liquidation,
reorganization or other relief of or against such Partner
under any bankruptcy, insolvency or other similar law now or
hereafter in effect has not been dismissed within one hundred
twenty (120) days after the commencement thereof;
(vii) the appointment without the Partner's consent
or acquiescence of a trustee, receiver or liquidator has not
been vacated or stayed within ninety (90) days of such
appointment; or
(viii) an appointment referred to in clause (vii)
which has been stayed is not vacated within ninety (90) days
after the expiration of any such stay.
"INDEMNITEE" means
(a) any Person made a party to a proceeding by reason of
(i) such Person's status as
(A) the General Partner,
(B) a director, trustee or officer of the
Partnership or the General Partner, or
(C) a director, trustee, member or officer
of any other Entity, each Person serving in such
capacity at the request of the Partnership or the
General Partner, or
(ii) his or its liabilities, pursuant to a loan
guarantee or otherwise, for any indebtedness of the
Partnership or any Subsidiary of the Partnership (including,
without limitation, any indebtedness which the Partnership or
any Subsidiary of the Partnership has assumed or taken assets
subject to); and
(b) such other Persons (including Affiliates of the General
Partner or the Partnership) as the General Partner may designate from
time to time (whether before or after the event giving rise to
potential liability), in its sole and absolute discretion.
"IRS" shall mean the Internal Revenue Service of the United States.
"LIEN" means any lien, security interest, mortgage, deed of trust,
charge, claim, encumbrance, pledge, option, right of first offer or first
refusal and any other right or interest of others of any kind or nature, actual
or contingent, or other similar encumbrance of any nature whatsoever.
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"LIMITED PARTNER" means, prior to the admission of the first Additional
Limited Partner to the Partnership, the Initial Limited Partner, and thereafter
any Person named as a Limited Partner in Exhibit A, as such Exhibit may be
amended from time to time, upon the execution and delivery by such Person of an
additional limited partner signature page, or any Substituted Limited Partner or
Additional Limited Partner, in such Person's capacity as a Limited Partner of
the Partnership.
"LIMITED PARTNER INTEREST" means a Partnership Interest of a Limited
Partner in the Partnership representing a fractional part of the Partnership
Interests of all Partners and includes any and all benefits to which the holder
of such a Partnership Interest may be entitled, as provided in this Agreement,
together with all obligations of such Person to comply with the terms and
provisions of this Agreement. A Limited Partner Interest may be expressed as a
number of OP Units.
"LIQUIDATING EVENT" has the meaning set forth in Section 13.1 hereof.
"LIQUIDATOR" has the meaning set forth in Section 13.2 hereof.
"LOCK-UP AGREEMENT" means each letter issued by certain Limited
Partners to the Partnership and Xxxxxxx Xxxxx & Co.
"NET INCOME" or "NET LOSS" means, for each fiscal year or other
applicable period, an amount equal to the Partnership's taxable income or loss
for such year or period as determined for federal income tax purposes by the
General Partner, determined in accordance with Section 703(a) of the Code (for
this purpose, all items of income, gain, loss or deduction required to be stated
separately pursuant to Section 703(a) of the Code shall be included in taxable
income or loss), adjusted as follows:
(a) by including as an item of gross income any tax-exempt
income received by the Partnership and not otherwise taken into account
in computing Net Income or Net Loss;
(b) by treating as a deductible expense any expenditure of the
Partnership described in Section 705(a)(2)(B) of the Code (or which is
treated as a Section 705(a)(2)(B) expenditure pursuant to Section
1.704-1(b)(2)(iv)(i) of the Regulations) and not otherwise taken into
account in computing Net Income or Net Loss, including amounts paid or
incurred to organize the Partnership (unless an election is made
pursuant to Section 709(b) of the Code) or to promote the sale of
interests in the Partnership and by treating deductions for any losses
incurred in connection with the sale or exchange of Partnership
property disallowed pursuant to Section 267(a)(1) or 707(b) of the Code
as expenditures described in Section 705(a)(2)(B) of the Code;
(c) by taking into account Depreciation in lieu of
depreciation, depletion, amortization and other cost recovery
deductions taken into account in computing taxable income or loss;
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(d) by computing gain or loss resulting from any disposition
of Partnership property with respect to which gain or loss is
recognized for federal income tax purposes by reference to the Gross
Asset Value of such property rather than its adjusted tax basis;
(e) in the event of an adjustment of the Gross Asset Value of
any Partnership asset which requires that the Capital Accounts of the
Partnership be adjusted pursuant to Sections 1.704-1(b)(2)(iv)(e), (f)
and (g) of the Regulations, by taking into account the amount of such
adjustment as if such adjustment represented additional Net Income or
Net Loss pursuant to Exhibit B; and
(f) by not taking into account in computing Net Income or Net
Loss items separately allocated to the Partners pursuant to Paragraphs
1 and 2 of Exhibit B.
"NONRECOURSE DEDUCTIONS" has the meaning set forth in Sections
1.704-2(b)(1) and 1.704-2(c) of the Regulations.
"NONRECOURSE LIABILITIES" has the meaning set forth in Section
1.704-2(b)(3) of the Regulations.
"OP UNIT" means a fractional, undivided share of the Partnership
Interests of all Partners issued pursuant to Sections 4.1, 4.2 and 4.3. The
number of OP Units outstanding and the Percentage Interests in the Partnership
represented by such OP Units are set forth in Exhibit A, as such Exhibit may be
amended from time to time. The ownership of OP Units shall be evidenced by such
form of certificate for OP Units as the General Partner adopts from time to time
unless the General Partner determines that the OP Units shall be uncertificated
securities.
"PARTNER" means a General Partner or a Limited Partner, and "Partners"
means the General Partner and the Limited Partners collectively.
"PARTNER MINIMUM GAIN" means an amount, with respect to each Partner
Nonrecourse Debt, equal to the Partnership Minimum Gain that would result if
such Partner Nonrecourse Debt were treated as a Nonrecourse Liability,
determined in accordance with Regulations Section 1.704-2(i)(3).
"PARTNER NONRECOURSE DEBT" has the meaning set forth in Regulations
Section 1.704-2(b)(4).
"PARTNER NONRECOURSE DEDUCTIONS" has the meaning set forth in
Regulations Section 1.704-2(i)(2), and the amount of Partner Nonrecourse
Deductions with respect to a Partner Nonrecourse Debt for a Partnership taxable
year shall be determined in accordance with the rules of Regulations Section
1.704-2(i)(2).
"PARTNERSHIP" means the limited partnership formed under the Act and
pursuant to this Agreement, and any successor thereto.
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"PARTNERSHIP INTEREST" means an ownership interest in the Partnership
representing a Capital Contribution by either a Limited Partner or the General
Partner and includes any and all benefits to which the holder of such a
Partnership Interest may be entitled as provided in this Agreement, together
with all obligations of such Person to comply with the terms and provisions of
this Agreement. A Partnership Interest may be expressed as a number of OP Units.
"PARTNERSHIP MINIMUM GAIN" has the meaning set forth in Regulations
Section 1.704-2(b)(2), and the amount of Partnership Minimum Gain, as well as
any net increase or decrease in a Partnership Minimum Gain, for a Partnership
taxable year shall be determined in accordance with the rules of Regulations
Section 1.704-2(d).
"PARTNERSHIP RECORD DATE" means the record date established by the
General Partner for the distribution of Available Cash pursuant to Section 5.1
hereof, which record date shall be the same as the record date established by
the General Partner for a distribution to its stockholders of some or all of its
portion of such distribution.
"PARTNERSHIP YEAR" means the fiscal year of the Partnership, as set
forth in Section 9.2 hereof.
"PERCENTAGE INTEREST" means, as to a Partner, the fractional part of
the Partnership Interests owned by such Partner and expressed as a percentage as
specified in Exhibit A, as such Exhibit may be amended from time to time.
"PERMITTED PARTNERS" has the meaning set forth in subparagraph 1(b) of
Exhibit B.
"PERMITTED TRANSFEREE" means any person to whom OP Units are
Transferred in accordance with Section 11.3 of this Agreement.
"PERSON" means an individual or Entity.
"PRECONTRIBUTION GAIN" has the meaning set forth in subparagraph 3(c)
of Exhibit B.
"QUARTER" means each of the three-month periods ending on March 31,
June 30, September 30 and December 31.
"REGISTRATION STATEMENT" means the Registration Statement on Form S-11
to be filed by the General Partner with the Securities and Exchange Commission,
and any amendments at any time made thereto.
"REGULATIONS" means the final, temporary or proposed Income Tax
Regulations promulgated under the Code, as such regulations may be amended from
time to time (including corresponding provisions of succeeding regulations).
"REIT" means a real estate investment trust as defined in Section 856
of the Code.
"REIT REQUIREMENTS" has the meaning set forth in Section 5.2.
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"REIT STOCK" means a share of stock of the General Partner.
"REIT STOCK AMOUNT" has the meaning set forth in the Exchange Rights
Agreement.
"RESTRICTED PARTNER" has the meaning set forth in Section 1(b) of
Exhibit B.
"STOCK OPTION PLANS" means collectively, the General Partner's 1997
Incentive Plan and Non-Employee Directors' Incentive Plan and any other plan
adopted from time to time by the General Partner pursuant to which REIT Stock is
issued, or options to acquire REIT Stock are granted, to employees or directors
of the General Partner, employees of the Partnership or employees of their
respective Affiliates in consideration for services or future services.
"SUBSIDIARY" means, with respect to any Person, any corporation,
partnership, limited liability company or other entity of which a majority of
(a) the voting power of the voting equity securities; or
(b) the outstanding equity interests, is owned, directly or
indirectly, by such Person.
"SUBSTITUTED LIMITED PARTNER" means a Person who is admitted as a
Limited Partner to the Partnership pursuant to Section 11.4 hereof.
"TAX ITEMS" has the meaning set forth in Exhibit B.
"TERMINATING CAPITAL TRANSACTION" means any sale or other disposition
of all or substantially all of the assets of the Partnership or a related series
of transactions that, taken together, result in the sale or other disposition of
all or substantially all of the assets of the Partnership.
"TRANSFER" as a noun, means any sale, assignment, conveyance, pledge,
hypothecation, gift, encumbrance or other transfer, and as a verb, means to
sell, assign, convey, pledge, hypothecate, give, encumber or otherwise transfer.
Certain additional terms and phrases have the meanings set forth in
Exhibit B.
ARTICLE 2
ORGANIZATIONAL MATTERS
2.1 Formation
The Partners have agreed to form the Partnership under and pursuant to
the Act. Except as expressly provided herein to the contrary, the rights and
obligations of the Partners and the administration and termination of the
Partnership shall be governed by the Act. The Partnership Interest of each
Partner shall be personal property for all purposes.
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2.2 Name
The name of the Partnership shall be Tower Realty Operating
Partnership, L.P. The Partnership's business may be conducted under any other
name or names deemed advisable by the General Partner, including the name of the
General Partner or any Affiliate thereof. The words "Limited
Partnership,""L.P.,""Ltd." or similar words or letters shall be included in the
Partnership's name where necessary for the purposes of complying with the laws
of any jurisdiction that so requires. The General Partner in its sole and
absolute discretion may change the name of the Partnership and shall notify the
Limited Partners of such change in the next regular communication to the Limited
Partners.
2.3 Registered Office and Agent; Principal Office
The address of the registered office of the Partnership in the State of
Delaware and the name and address of the registered agent for service of process
on the Partnership in the State of Delaware is United Corporate Services, Inc.,
00 Xxxx Xxxxx Xxxxxx, Xxxxx (Xxxx Xxxxxx), Xxxxxxxx 00000. The principal office
of the Partnership shall be 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000,
or such other place as the General Partner may from time to time designate by
notice to the Limited Partners. The Partnership may maintain offices at such
other place or places within or outside the State of Delaware as the General
Partner deems advisable.
2.4 Power of Attorney
(a) Each Limited Partner and each Assignee is deemed to
irrevocably constitute and appoint the General Partner, any Liquidator,
and authorized officers and attorneys-in-fact of each, and each of
those acting singly, in each case with full power of substitution, as
its true and lawful agent and attorney-in-fact, with full power and
authority in its name, place and stead to:
(i) execute, swear to, acknowledge, deliver, file and
record in the appropriate public offices
(A) all certificates, documents and other
instruments (including, without limitation, this
Agreement and the Certificate and all amendments or
restatements thereof) that the General Partner or the
Liquidator deems appropriate or necessary to form,
qualify or continue the existence or qualification of
the Partnership as a limited partnership (or a
partnership in which the Limited Partners have
limited liability) in the State of Delaware and in
all other jurisdictions in which the Partnership may
or plans to conduct business or own property,
including, without limitation, any documents
necessary or advisable to convey any Contributed
Property to the Partnership;
(B) all instruments that the General Partner
deems appropriate or necessary to reflect any
amendment, change, modification or restatement of
this Agreement in accordance with its terms;
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(C) all conveyances and other instruments or
documents that the General Partner or the Liquidator
deems appropriate or necessary to reflect the
dissolution and liquidation of the Partnership
pursuant to the terms of this Agreement, including,
without limitation, a certificate of cancellation;
(D) all instruments relating to the
admission, withdrawal, removal or substitution of any
Partner pursuant to, or other events described in,
Article 11, 12 or 13 hereof or the Capital
Contribution of any Partner;
(E) all certificates, documents and other
instruments relating to the determination of the
rights, preferences and privileges of Partnership
Interest; and
(F) amendments to this Agreement as provided
in Article 14 hereof; and
(ii) execute, swear to, seal, acknowledge and file
all ballots, consents, approvals, waivers, certificates and
other instruments appropriate or necessary, in the sole and
absolute discretion of the General Partner or any Liquidator,
to make, evidence, give, confirm or ratify any vote, consent,
approval, agreement or other action which is made or given by
the Partners hereunder or is consistent with the terms of this
Agreement or appropriate or necessary, in the sole discretion
of the General Partner or any Liquidator, to effectuate the
terms or intent of this Agreement.
Nothing contained herein shall be construed as authorizing the General
Partner or any Liquidator to amend this Agreement except in accordance
with Article 14 hereof or as may be otherwise expressly provided for in
this Agreement.
(b) (i) The foregoing power of attorney is hereby declared to
be irrevocable and a power coupled with an interest, in
recognition of the fact that each of the Partners will be
relying upon the power of the General Partner and any
Liquidator to act as contemplated by this Agreement in any
filing or other action by it on behalf of the Partnership, and
it shall survive and not be affected by the subsequent
Incapacity of any Limited Partner or Assignee and the Transfer
of all or any portion of such Limited Partner's or Assignee's
OP Units and shall extend to such Limited Partner's or
Assignee's heirs, successors, assigns and personal
representatives.
(ii) Each such Limited Partner or Assignee hereby
agrees to be bound by any representation made by the General
Partner or any Liquidator, acting in good faith pursuant to
such power of attorney, and each such Limited Partner or
Assignee hereby waives any and all defenses which may be
available to contest,
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negate or disaffirm the action of the General Partner or any
Liquidator, taken in good faith under such power of attorney.
(iii) Each Limited Partner or Assignee shall execute
and deliver to the General Partner or the Liquidator, within
fifteen (15) days after receipt of the General Partner's or
Liquidator's request therefor, such further designation,
powers of attorney and other instruments as the General
Partner or the Liquidator, as the case may be, deems necessary
to effectuate this Agreement and the purposes of the
Partnership.
2.5 Term
The term of the Partnership shall commence on the date hereof and shall
continue until December 31, 2047, unless the Partnership is dissolved sooner
pursuant to the provisions of Article 13 or as otherwise provided by law.
ARTICLE 3
PURPOSE
3.1 Purpose and Business
(a) The purpose and nature of the business to be conducted by
the Partnership is to conduct any business that may be lawfully
conducted by a limited partnership organized pursuant to the Act
including, without limitation, to engage in the following activities:
(i) to acquire, hold, own, develop, construct,
improve, maintain, operate, sell, lease, transfer, encumber,
convey, exchange, and otherwise dispose of or deal with the
properties described in the prospectus contained in the
Registration Statement;
(ii) to acquire, hold, own, develop, construct,
improve, maintain, operate, sell, lease, transfer, encumber,
convey, exchange, and otherwise dispose of or deal with real
and personal property of all kinds;
(iii) to enter into any partnership, joint venture or
other similar arrangement to engage in any of the foregoing;
(iv) to undertake such other activities as may be
necessary, advisable, desirable or convenient to the business
of the Partnership; and
(v) to engage in such other ancillary activities as
shall be necessary or desirable to effectuate the foregoing
purposes;
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provided, however, that such business shall be limited to and conducted in such
a manner as to permit the General Partner at all times to be classified as a
REIT, unless the General Partner ceases to qualify as a REIT for any reason not
related to the business conducted by the Partnership.
(b) The Partnership shall have all powers necessary or
desirable to accomplish the purposes enumerated.
(c) In connection with the foregoing, but subject to all of
the terms, covenants, conditions and limitations contained in this
Agreement and any other agreement entered into by the Partnership, the
Partnership shall have full power and authority to enter into, perform,
and carry out contracts of any kind, to borrow money and to issue
evidences of indebtedness, whether or not secured by mortgage, trust
deed, pledge or other Lien, and, directly or indirectly, to acquire and
construct additional properties necessary or useful in connection with
its business.
3.2 Powers
(a) Subject to paragraph (c) below, the Partnership is
empowered to do any and all acts and things necessary, appropriate,
proper, advisable, incidental to or convenient for the furtherance and
accomplishment of the purposes and business described herein and for
the protection and benefit of the Partnership; provided, that the
Partnership shall not take, or refrain from taking, any action which,
in the judgment of the General Partner, in its sole and absolute
discretion,
(i) could adversely affect the ability of the General
Partner to continue to qualify as a REIT, unless the General
Partner otherwise ceases to qualify as a REIT;
(ii) could subject the General Partner to any
additional taxes under Section 857 or Section 4981 of the
Code; or
(iii) could violate any law or regulation of any
governmental body or agency having jurisdiction over the
General Partner or its securities.
(b) The Partnership also is empowered to do any and all acts
and things necessary, appropriate or advisable to ensure that the
Partnership will not be classified as a "publicly traded partnership"
for the purposes of Section 7704 of the Code.
(c) Prior to the effectiveness of the Registration Statement
and the issuance and sale of the shares of the General Partner's common
stock to be issued and sold thereunder, the affirmative vote or consent
of the General Partner's independent director (as such term is used in
the General Partner's Articles of Incorporation) will be required for
the approval of any of the following actions by or with respect to the
Partnership or any Subsidiary:
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(i) filing or consenting to the filing of a
bankruptcy petition;
(ii) otherwise instituting or causing the Partnership
or such Subsidiary to acquiesce in the institution of an
insolvency proceeding;
(iii) dissolving, liquidating, consolidating, merging
or selling all or substantially all of its assets; or
(iv) amending this Agreement or the articles of
incorporation, limited liability company agreement,
partnership agreement or trust agreement of any Subsidiary.
ARTICLE 4
CAPITAL CONTRIBUTIONS
4.1 Capital Contributions of the Partners
(a) The Partners have made or shall make at the Effective
Date, if applicable, the Capital Contributions as set forth in Exhibit
A to this Agreement.
(b) To the extent the Partnership acquires any property by the
merger of any other Person into the Partnership, Persons who receive
Partnership Interests in exchange for their interests in the Person
merging into the Partnership shall become Partners and shall be deemed
to have made Capital Contributions as provided in the applicable merger
agreement and as set forth in Exhibit A, as amended to reflect such
deemed Capital Contributions.
(c) Each Partner shall own OP Units in the amounts set forth
for such Partner in Exhibit A and shall have a Percentage Interest in
the Partnership as set forth in Exhibit A, which Percentage Interest
shall be adjusted in Exhibit A from time to time by the General Partner
to the extent necessary to reflect accurately exchanges, additional
Capital Contributions, the issuance of additional OP Units or similar
events having an effect on any Partner's Percentage Interest.
(d) The number of OP Units held by the General Partner, in its
capacity as general partner, shall be deemed to be the General Partner
Interest.
(e) Except as provided in Sections 4.2 and 10.5, the Partners
shall have no obligation to make any additional Capital Contributions
or loans to the Partnership.
4.2 Additional Funds; Restrictions on the General Partner
(a) (i) The sums of money required to finance the business and
affairs of the Partnership shall be derived from the initial
capital Contributions made to the Partnership by the Partners
as set forth in Section 4.1 and from funds generated
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from the operation and business of the Partnership, including,
without limitation, rents and distributions directly or
indirectly received by the Partnership from any Subsidiary.
(ii) In the event additional financing is needed from
sources other than as set forth in Section 4.2(a)(i) for any
reason, the General Partner may, in its sole and absolute
discretion, in such amounts and at such times as it solely
shall determine to be necessary or appropriate,
(A) cause the Partnership to issue
additional Partnership Interests and admit additional
Limited Partners to the Partnership in accordance
with Section 4.3;
(B) make additional Capital Contributions to
the Partnership (subject to the provisions of Section
4.2(b));
(C) cause the Partnership to borrow money,
enter into loan arrangements, issue debt securities,
obtain letters of credit or otherwise borrow money on
a secured or unsecured basis;
(D) make a loan or loans to the Partnership
(subject to Section 4.2(b)); or
(E) sell any assets or properties directly
or indirectly owned by the Partnership.
(iii) In no event shall the Limited Partners be
required to make any additional Capital Contributions or any
loan to, or otherwise provide any financial accommodation for
the benefit of, the Partnership.
(b) The General Partner shall not issue any debt securities,
any preferred stock or any common stock (including additional REIT
Stock (other than (i) as payment of the REIT Stock Amount or (ii) in
connection with the conversion or exchange of securities of the General
Partner solely in conversion or exchange for other securities of the
General Partner)) or rights, options, warrants or convertible or
exchangeable securities containing the right to subscribe for or
purchase any of the foregoing (collectively, "SECURITIES"), other than
to all holders of REIT Stock, unless the General Partner shall
(i) in the case of debt securities, lend to the
Partnership the proceeds of or consideration received for such
Securities on the same terms and conditions, including
interest rate and repayment schedule, as shall be applicable
with respect to or incurred in connection with the issuance of
such Securities and the proceeds of, or consideration received
from, any subsequent exercise, exchange or conversion thereof
(if applicable);
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(ii) in the case of equity Securities senior or
junior to the REIT Stock as to dividends and distributions on
liquidation, contribute to the Partnership the proceeds of or
consideration (including any property or other non-cash
assets) received for such Securities and the proceeds of, or
consideration received from, any subsequent exercise, exchange
or conversion thereof (if applicable), and receive from the
Partnership, interests in the Partnership in consideration
therefor with the same terms and conditions, including
dividend, dividend priority and liquidation preference, as are
applicable to such Securities; and
(iii) in the case of REIT Stock or other equity
Securities on a parity with the REIT Stock as to dividends and
distributions on liquidation, (including, without limitation,
REIT Stock or other Securities issued as a stock award or upon
exercise of options issued under the Stock Option Plans),
contribute to the Partnership the proceeds of or consideration
(including any property or other non-cash assets, including
services) received for such Securities and the proceeds of, or
consideration received from, any subsequent exercise, exchange
or conversion thereof (if applicable), and receive from the
Partnership a number of additional OP Units in consideration
therefor equal to the product of
(A) the number of shares of REIT Stock or
other equity Securities issued by the General
Partner, multiplied by
(B) a fraction the numerator of which is one
and the denominator of which is the Exchange Factor
in effect on the date of such contribution.
4.3 Issuance of Additional Partnership Interests; Admission of
Additional Limited Partners
(a) In addition to any Partnership Interests issuable by the
Partnership pursuant to Section 4.2, the General Partner is authorized
to cause the Partnership to issue additional Partnership Interests (or
options therefor) in the form of OP Units or other Partnership
Interests in one or more series or classes, or in one or more series of
any such class senior or junior to the OP Units to any Persons at any
time or from time to time, on such terms and conditions, as the General
Partner shall establish in each case in its sole and absolute
discretion subject to Delaware law, including, without limitation, (i)
the allocations of items of Partnership income, gain, loss, deduction
and credit to each class or series of Partnership Interests, (ii) the
right of each class or series of Partnership Interests to share in
Partnership distributions, and (iii) the rights of each class or series
of Partnership Interest upon dissolution and liquidation of the
Partnership; provided that, no such Partnership Interests shall be
issued to the General Partner unless either (a) the Partnership
Interests are issued in connection with the grant, award, or issuance
of REIT Stock or other equity interests in the General Partner having
designations, preferences and other rights such that the economic
interests attributable to such REIT Stock or other equity interests are
substantially similar to the designations, preferences and other rights
(except voting rights) of the Partnership Interests issued to the
General Partner in
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accordance with this Section 4.3(a) or (b) the additional Partnership
Interests are issued to all Partners holding Partnership Interests in
the same class in proportion to their respective Percentage interests
in such class, without any approval being required from any Limited
Partner or any other Person; provided, however, that
(i) such issuance does not cause the Partnership to
become, with respect to any employee benefit plan subject to
Title I of ERISA or Section 4975 of the Code, a "party in
interest" (as defined in Section 3(14) of ERISA) or a
"disqualified person" (as defined in Section 4975(e) of the
Code); and
(ii) such issuance would not cause any portion of the
assets of the Partnership to constitute assets of any employee
benefit plan pursuant to Section 2510.3-101 of the
regulations of the United States Department of Labor.
(b) Subject to the limitations set forth in Section 4.3(a),
the General Partner may take such steps as it, in its sole and absolute
discretion, deems necessary or appropriate to admit any Person as a
Limited Partner of the Partnership or to issue any Partnership
Interests, including, without limitation, amending the Certificate,
Exhibit A or any other provision of this Agreement.
4.4 Contribution of Proceeds of Issuance of REIT Stock
In connection with the initial offering of common stock by the General
Partner, and any other offering, grant, award, or issuance of REIT Stock or
securities, rights, options, warrants or convertible or exchangeable securities
pursuant to Section 4.2, the General Partner shall make aggregate Capital
Contributions to the Partnership of the proceeds raised in connection with such
offering, grant, award, or issuance; provided, however, that if the proceeds
actually received by the General Partner are less than the gross proceeds of
such offering, grant, award, or issuance as a result of any underwriter's
discount, commission, or fee or other expenses paid or incurred in connection
with such offering, grant, award, or issuance, then the General Partner shall be
deemed to have made a Capital Contribution to the Partnership in the amount of
the gross proceeds of such issuance and the Partnership shall be deemed
simultaneously to have paid pursuant to Section 7.3(c) for the amount of such
underwriter's discount or other expenses.
4.5 Repurchase of REIT Stock; Shares-In-Trust
(a) In the event that the General Partner shall elect to
purchase from its stockholders REIT Stock for the purpose of delivering
such REIT Stock to satisfy an obligation under any dividend
reinvestment program adopted by the General Partner, any employee stock
purchase plan adopted by the General Partner, or any other obligation
or arrangement undertaken by the General Partner in the future, the
purchase price paid by the General Partner for such REIT Stock and any
other expenses incurred by the General
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Partner in connection with such purchase shall be considered expenses
of the Partnership and shall be reimbursed to the General Partner,
subject to the condition that:
(i) if such REIT Stock subsequently is to be sold by
the General Partner, the General Partner shall pay to the
Partnership any proceeds received by the General Partner from
the sale of such REIT Stock (provided that an exchange of REIT
Stock for OP Units pursuant to the Exchange Rights Agreement
would not be considered a sale for such purposes); and
(ii) if such REIT Stock is not re-transferred by the
General Partner within 30 days after the purchase thereof, the
General Partner shall cause the Partnership to cancel a number
of OP Units held by the General Partner (as applicable) equal
to the product of
(x) the number of shares of such REIT Stock,
multiplied by
(y) a fraction, the numerator of which is
one and the denominator of which is the Exchange
Factor in effect on the date of such cancellation.
(b) In the event the General Partner purchases Shares-in-Trust
(as from time to time defined in the Articles of Incorporation), the
Partnership will purchase from the General Partner a number of OP Units
equal to the product of
(i) the number of Shares-in-Trust purchased by the
General Partner, multiplied by
(ii) a fraction, the numerator of which is one and
the denominator of which is the Exchange Factor in effect on
the date of such purchase.
4.6 No Third-Party Beneficiary
No creditor or other third party having dealings with the Partnership
shall have the right to enforce the right or obligations of any Partner to make
Capital Contributions or loans or to pursue any other right or remedy hereunder
or at law or in equity, it being understood and agreed that the provisions of
this Agreement shall be solely for the benefit of, and may be enforced solely
by, the parties hereto and their respective successors and assigns.
4.7 No Interest; No Return
(a) No Partner shall be entitled to interest on its Capital
Contribution or on such Partner's Capital Account.
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(b) Except as provided herein or by law, no Partner shall have
any right to demand or receive the return of its Capital Contribution
from the Partnership.
4.8 No Preemptive Rights
Subject to any preemptive rights that may be granted pursuant to
Section 4.3 hereof, no Person shall have any preemptive or other similar right
with respect to
(a) additional Capital Contributions or loans to the
Partnership; or
(b) issuance or sale of any OP Units or other Partnership
Interests.
ARTICLE 5
DISTRIBUTIONS
5.1 Regular Distributions
Except for distributions pursuant to Section 13.2 in connection with
the dissolution and liquidation of the Partnership, and subject to the
provisions of Sections 5.3, 5.4, 5.5 and 12.2(c), the General Partner shall
cause the Partnership to distribute, on a quarterly basis (or, at the election
of the General Partner, more frequently), an amount of Available Cash,
determined by the General Partner in its sole discretion to the Partners, as of
the applicable Partnership Record Date, in accordance with each Partner's
respective Percentage Interest; provided, however, that in no event may a
Partner receive a distribution of Available Cash with respect to an OP Unit if
such Partner is entitled to receive a distribution out of such Available Cash
with respect to REIT Stock for which such OP Unit has been exchanged.
5.2 Qualification as a REIT
The General Partner shall use its best efforts to cause the Partnership
to distribute sufficient amounts under this Article 5 to enable the General
Partner to pay stockholder dividends that will enable the General Partner to
(a) satisfy the requirements for qualification as a REIT under
the Code and Regulations ("REIT Requirements"), and
(b) avoid any federal income or excise tax liability;
provided, however, the General Partner shall not be bound to comply with this
covenant to the extent such distributions would
(x) violate applicable Delaware law or
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(y) contravene the terms of any notes, mortgages or other
types of debt obligations to which the Partnership may be subject in
conjunction with borrowed funds.
5.3 Withholding
With respect to any withholding tax or other similar tax liability or
obligation to which the Partnership may be subject as a result of any act or
status of any Partner or to which the Partnership becomes subject with respect
to any OP Unit, the Partnership shall have the right to withhold amounts of
Available Cash distributable to such Partner or with respect to such OP Units,
to the extent of the amount of such withholding tax or other similar tax
liability or obligation pursuant to the provisions contained in Section 10.5.
5.4 Additional Partnership Interests
If the Partnership issues Partnership Interests in accordance with
Section 4.2 or 4.3, the distribution priorities set forth in Section 5.1 shall
be amended, as necessary, to reflect the distribution priority of such
Partnership Interests and corresponding amendments shall be made to the
provisions of Exhibit B.
5.5 Distributions Upon Liquidation
Proceeds from a Terminating Capital Transaction and any other cash
received or reductions in reserves made after commencement of the liquidation of
the Partnership shall be distributed to the Partners in accordance with Section
13.2.
ARTICLE 6
ALLOCATIONS
6.1 Allocations
The Net Income, Net Loss and other Partnership items shall be allocated
pursuant to the provisions of Exhibit B.
6.2 Revisions to Allocations to Reflect Issuance of Partnership
Interests
If the Partnership issues Partnership Interests to the General Partner
or any additional Limited Partner pursuant to Article IV, the General Partner
shall make such revisions to this Article 6 and Exhibit B as it deems necessary
to reflect the terms of the issuance of such Partnership Interests, including
making preferential allocations to classes of Partnership Interests that are
entitled thereto. Such revisions shall not require the consent or approval of
any other Partner.
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ARTICLE 7
MANAGEMENT AND OPERATIONS OF BUSINESS
7.1 Management
(a) (i) Except as otherwise expressly provided in this
Agreement, full, complete and exclusive discretion to manage
and control the business and affairs of the Partnership are
and shall be vested in the General Partner, and no Limited
Partner shall have any right to participate in or exercise
control or management power over the business and affairs of
the Partnership.
(ii) The General Partner may not be removed by the
Limited Partners with or without cause.
(iii) In addition to the powers now or hereafter
granted a general partner of a limited partnership under
applicable law or which are granted to the General Partner
under any other provision of this Agreement, the General
Partner shall have full power and authority to do all things
deemed necessary or desirable by it to conduct the business of
the Partnership, to exercise all powers set forth in Section
3.2 hereof and to effectuate the purposes set forth in Section
3.1 hereof, including, without limitation:
(A) (I) the making of any expenditures, the
lending or borrowing of money, including,
without limitation, making prepayments on
loans and borrowing money to permit the
Partnership to make distributions to its
Partners in such amounts as will permit the
General Partner (so long as the General
Partner qualifies as a REIT) to avoid the
payment of any federal income tax
(including, for this purpose, any excise tax
pursuant to Section 4981 of the Code) and
to make distributions to its stockholders in
amounts sufficient to permit the General
Partner to maintain REIT status,
(II) the assumption or guarantee of,
or other contracting for, indebtedness and
other liabilities,
(III) the issuance of evidence of
indebtedness (including the securing of the
same by deed, mortgage, deed of trust or
other lien or encumbrance on the
Partnership's assets) and
(IV) the incurring of any
obligations it deems necessary for the
conduct of the activities of the
Partnership, including the payment of all
expenses associated with the General
Partner;
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(B) the making of tax, regulatory and other
filings, or rendering of periodic or other reports to
governmental or other agencies having jurisdiction
over the business or assets of the Partnership or the
General Partner;
(C) the acquisition, disposition, mortgage,
pledge, encumbrance, hypothecation or exchange of any
assets of the Partnership (including the exercise or
grant of any conversion, option, privilege, or
subscription right or other right available in
connection with any assets at any time held by the
Partnership) or the merger or other combination of
the Partnership with or into another entity;
(D) the use of the assets of the Partnership
(including, without limitation, cash on hand) for any
purpose consistent with the terms of this Agreement
and on any terms it sees fit, including, without
limitation,
(I) the financing of the conduct of
the operations of the General Partner, the
Partnership or any of the Partnership's
Subsidiaries,
(II) the lending of funds to other
Persons (including, without limitation, the
Subsidiaries of the Partnership and/or the
General Partner) and the repayment of
obligations of the Partnership and its
Subsidiaries and any other Person in which
it has an equity investment, and
(III) the making of capital
contributions to its Subsidiaries;
(E) the expansion, development,
construction, leasing, repair, alteration, demolition
or improvement of any property in which the
Partnership or any Subsidiary of the Partnership owns
an interest;
(F) the negotiation, execution, and
performance of any contracts, conveyances or other
instruments that the General Partner considers useful
or necessary to the conduct of the Partnership's
operations or the implementation of the General
Partner's powers under this Agreement, including
contracting with contractors, developers,
consultants, accountants, legal counsel, other
professional advisors and other agents and the
payment of their expenses and compensation out of the
Partnership's assets;
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(G) the distribution of Partnership cash or
other Partnership assets in accordance with this
Agreement;
(H) holding, managing, investing and
reinvesting cash and other assets of the Partnership;
(I) the collection and receipt of revenues
and income of the Partnership;
(J) the establishment of one or more
divisions of the Partnership, the selection and
dismissal of employees of the Partnership (including,
without limitation, employees having titles such as
"president," "vice president," "secretary" and
"treasurer" of the Partnership), and agents, outside
attorneys, accountants, consultants and contractors
of the Partnership, and the determination of their
compensation and other terms of employment or
engagement;
(K) the maintenance of such insurance for
the benefit of the Partnership and the Partners as it
deems necessary or appropriate;
(L) the formation of, or acquisition of an
interest in, and the contribution of property to, any
further Entities or other relationships that it deems
desirable, including, without limitation, the
acquisition of interests in, and the contributions of
property to, its Subsidiaries and any other Person
from time to time;
(M) the control of any matters affecting the
rights and obligations of the Partnership, including
(I) the settlement, compromise,
submission to arbitration or any other form
of dispute resolution, or abandonment of,
any claim, cause of action, liability, debt
or damages, due or owing to or from the
Partnership,
(II) the commencement or defense of
suits, legal proceedings, administrative
proceedings, arbitration or other forms of
dispute resolution, and
(III) the representation of the
Partnership in all suits or legal
proceedings, administrative proceedings,
arbitrations or other forms of dispute
resolution, the incurring of legal expenses,
and the indemnification of any Person
against liabilities and contingencies to the
extent permitted by law;
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(N) the undertaking of any action in
connection with the Partnership's direct or indirect
investment in its Subsidiaries or any other Person
(including, without limitation, the contribution or
loan of funds by the Partnership to such Persons);
(O) the determination of the fair market
value of any Partnership property distributed in kind
using such reasonable method of valuation as the
General Partner, in its sole discretion, may adopt;
(P) the exercise, directly or indirectly,
through any attorney-in-fact acting under a general
or limited power of attorney, of any right, including
the right to vote, appurtenant to any asset or
investment held by the Partnership;
(Q) the exercise of any of the powers of the
General Partner enumerated in this Agreement on
behalf of or in connection with any Subsidiary of the
Partnership or any other Person in which the
Partnership has a direct or indirect interest, or
jointly with any such Subsidiary or other Person;
(R) the exercise of any of the powers of the
General Partner enumerated in this Agreement on
behalf of any Person in which the Partnership does
not have an interest pursuant to contractual or other
arrangements with such Person;
(S) the making, execution and delivery of
any and all deeds, leases, notes, mortgages, deeds of
trust, security agreements, conveyances, contracts,
guarantees, warranties, indemnities, waivers,
releases or legal instruments or agreements in
writing necessary or appropriate, in the judgment of
the General Partner, for the accomplishment of any of
the foregoing;
(T) the issuance of additional OP Units in
connection with Capital Contributions by Additional
Limited Partners and additional Capital Contributions
by Partners pursuant to Article 4 hereof; and
(U) The opening of bank accounts on behalf
of, and in the name of, the Partnership and its
Subsidiaries.
(b) (i) Each of the Limited Partners agrees that the General
Partner is authorized to execute, deliver and perform the
above-mentioned agreements and transactions on behalf of the
Partnership without any further act, approval or vote
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of the Partners, notwithstanding any other provision of this
Agreement to the fullest extent permitted under the Act or
other applicable law, rule or regulation.
(ii) The execution, delivery or performance by the
General Partner or the Partnership of any agreement authorized
or permitted under this Agreement shall not constitute a
breach by the General Partner of any duty that the General
Partner may owe the Partnership or the Limited Partners or any
other Persons under this Agreement or of any duty stated or
implied by law or equity.
(c) At all times from and after the date hereof, the General
Partner at the expense of the Partnership, may or may not, cause the
Partnership to obtain and maintain
(i) casualty, liability and other insurance on the
properties of the Partnership and
(ii) liability insurance for the Indemnities
hereunder.
(d) At all times from and after the date hereof, the General
Partner may cause the Partnership to establish and maintain at any and
all times working capital accounts and other cash or similar balances
in such amount as the General Partner, in its sole and absolute
discretion, deems appropriate and reasonable from time to time.
(e) (i) In exercising its authority under this Agreement, the
General Partner may, but shall be under no obligation to, take
into account the tax consequences to any Partner of any action
taken (or not taken) by it. The General Partner and the
Partnership shall not have liability to a Limited Partner for
monetary damages or otherwise for losses sustained,
liabilities incurred or benefits not delivered by such Limited
Partner in connection with such decisions, provided that the
General Partner has acted in good faith pursuant to its
authority under this Agreement
(ii) The General Partner and the Partnership shall
not have liability to a Limited Partner under any
circumstances as a result of an income tax liability incurred
by such Limited Partner as a result of an action (or inaction)
by the General Partner taken pursuant to its authority under
and in accordance with this Agreement.
7.2 Certificate of Limited Partnership
(a) Promptly after the execution and delivery of this
Agreement by the General Partner and the Initial Limited Partner, the
General Partner will file the Certificate with the Secretary of State
of Delaware as required by the Act.
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(b) (i) The General Partner shall use all reasonable efforts
to cause to be filed such other certificates or documents as
may be reasonable and necessary or appropriate for the
formation, continuation, qualification and operation of a
limited partnership (or a partnership in which the limited
partners have limited liability) in the State of Delaware and
any other state, or the District of Columbia, in which the
Partnership may elect to do business or own property.
(ii) To the extent that such action is determined by
the General Partner to be reasonable and necessary or
appropriate, the General Partner shall file amendments to and
restatements of the Certificate and do all of the things to
maintain the Partnership as a limited partnership (or a
partnership in which the limited partners have limited
liability) under the laws of the State of Delaware and each
other state, or the District of Columbia, in which the
Partnership may elect to do business or own property.
(iii) Subject to the terms of Section 8.5(a)(iv)
hereof, the General Partner shall not be required, before or
after filing, to deliver or mail a copy of the Certificate or
any amendment thereto to any Limited Partner.
7.3 Reimbursement of the General Partner
(a) Except as provided in this Section 7.3 and elsewhere in
this Agreement (including the provisions of Articles 5 and 6 regarding
distributions, payments, and allocations to which it may be entitled),
the General Partner shall not be compensated for its services as
general partner of the Partnership.
(b) (i) The General Partner shall be reimbursed on a monthly
basis, or such other basis as it may determine in its sole and
absolute discretion, for all expenses that it incurs on behalf
of the Partnership relating to the ownership and operation of
the Partnership's assets, or for the benefit of the
Partnership, including all expenses associated with compliance
by the General Partner and the Initial Limited Partner with
laws, rules and regulations promulgated by any regulatory body
and any and all salaries, compensation and expenses of
officers and employees of the General Partner; provided, that
the amount of any such reimbursement shall be reduced by any
interest earned by the General Partner with respect to bank
accounts or other instruments or accounts held by it in its
name.
(ii) Such reimbursement shall be in addition to any
reimbursement made as a result of indemnification pursuant to
Section 7.6 hereof.
(iii) Notwithstanding any provisions to the contrary
set forth herein, the General Partner shall not be entitled to
reimbursement for the ratable portion of
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any administrative costs and expenses incurred by it with
respect to, or that are attributable to, properties or
partnership interests in a Subsidiary of the Partnership that
are owned by the General Partner directly. If certain expenses
are incurred for the benefit of the Partnership and other
entities (including the General Partner), such expenses will
be allocated to the Partnership and such other entities in
such a manner as the General Partner, it its sole and absolute
discretion, deems fair and reasonable.
(c) (i) Expenses incurred by the General Partner relating to
the organization or reorganization of the Partnership and the
General Partner, the initial public offering of REIT Stock by
the General Partner and any other issuance of additional
Partnership Interests, REIT Stock or rights, options,
warrants, or convertible or exchangeable securities pursuant
to Section 4.2 hereof and all costs and expenses associated
with the preparation and filing of any periodic reports by the
General Partner under federal, state or local laws or
regulations (including, without limitation, all costs,
expenses, damages, and other payments resulting from or
arising in connection with litigation related to any of the
foregoing) are primarily obligations of the Partnership.
(ii) To the extent the General Partner pays or incurs
such expenses, the General Partner shall be reimbursed for
such expenses.
7.4 Outside Activities of the General Partner
(a) Without the Consent of Limited Partners holding a majority
of the Partnership Interests not held by the General Partner, the
General Partner shall not directly or indirectly enter into or conduct
any business other than in connection with the ownership, acquisition,
and disposition of Partnership Interests and the management of the
business of the Partnership, and such activities as are incidental
thereto.
(b) The General Partner and any Affiliates of the General
Partner may acquire Limited Partner Interests and shall be entitled to
exercise all rights of a Limited Partner relating to such Limited
Partner Interests.
7.5 Contracts with Affiliates
(a) (i) The Partnership may lend or contribute funds or other
assets to its Subsidiaries or other Persons in which it has an
equity investment and such Subsidiaries and Persons may borrow
funds from the Partnership, on terms and conditions
established in the sole and absolute discretion of the General
Partner.
(ii) The foregoing authority shall not create any
right or benefit in favor of any Subsidiary or any other
Person.
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(b) Except as provided in Section 7.4, the Partnership may
Transfer assets to Entities in which it is or thereby becomes a
participant upon such terms and subject to such conditions consistent
with this Agreement and applicable law as the General Partner, in its
sole and absolute discretion, may determine.
(c) Except as expressly permitted by this Agreement, neither
the General Partner nor any of its Affiliates shall sell, Transfer or
convey any property to, or purchase any property from, the Partnership,
directly or indirectly, except pursuant to transactions that are
determined by the General Partner in good faith to be fair and
reasonable.
(d) The General Partner, in its sole and absolute discretion
and without the approval of the Limited Partners, may propose and
adopt, on behalf of the Partnership, employee benefit plans, stock
option plans, and similar plans funded by the Partnership for the
benefit of employees of the Partnership, the General Partner, any
Subsidiaries of the Partnership or any Affiliate of any of them in
respect of services performed, directly or indirectly, for the benefit
of the Partnership, the General Partner, any Subsidiaries of the
Partnership or any Affiliate of any of them.
(e) The General Partner is expressly authorized to enter into,
in the name and on behalf of the Partnership, a "right of first
opportunity" or "right of first offer" arrangement, non-competition
agreements and other conflict avoidance agreements with various
Affiliates of the Partnership and the General Partner, on such terms as
the General Partner, in its sole and absolute discretion, believes are
advisable.
7.6 Indemnification
(a) (i) To the fullest extent permitted by Delaware law, the
Partnership shall indemnify each Indemnitee from and against
any and all losses, claims, damages, liabilities, joint or
several, expenses (including, without limitation, reasonable
attorneys' fees and other legal fees and expenses), judgments,
fines, settlements, and other amounts arising from any and all
claims, demands, actions, suits or proceedings, civil,
criminal, administrative or investigative, that relate to the
operations of the Partnership or the General Partner as set
forth in this Agreement, in which such Indemnitee may be
involved, or is threatened to be involved, as a party or
otherwise, except to the extent it is finally determined by a
court of competent jurisdiction, from which no further appeal
may be taken, that such Indemnitee's action constituted
intentional acts or omissions constituting willful misconduct
or fraud.
(ii) Without limitation, the foregoing indemnity
shall extend to any liability of any Indemnitee, pursuant to a
loan guaranty or otherwise for any indebtedness of the
Partnership or any Subsidiary of the Partnership (including,
without limitation, any indebtedness which the Partnership or
any Subsidiary of
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the Partnership has assumed or taken subject to), and the
General Partner is hereby authorized and empowered, on behalf
of the Partnership, to enter into one or more indemnity
agreements consistent with the provisions of this Section 7.6
in favor of any Indemnitee having or potentially having
liability for any such indebtedness.
(iii) Any indemnification pursuant to this Section
7.6 shall be made only out of the assets of the Partnership,
and neither the General Partner nor any Limited Partner shall
have any obligation to contribute to the capital of the
Partnership, or otherwise provide funds, to enable the
Partnership to fund its obligations under this Section 7.6.
(b) Reasonable expenses incurred by an Indemnitee who is
a party to a proceeding shall be paid or reimbursed
by the Partnership in advance of the final
disposition of the proceeding.
(c) The indemnification provided by this Section 7.6 shall be
in addition to any other rights to which an Indemnitee or any other
Person may be entitled under any agreement, pursuant to any vote of the
Partners, as a matter of law or otherwise, and shall continue as to an
Indemnitee who has ceased to serve in such capacity unless otherwise
provided in a written agreement pursuant to which such Indemnities are
indemnified.
(d) The Partnership may, but shall not be obligated to,
purchase and maintain insurance, on behalf of the Indemnities and such
other Persons as the General Partner shall determine, against any
liability that may be asserted against or expenses that may be incurred
by such Person in connection with the Partnership's activities,
regardless of whether the Partnership would have the power to indemnify
such Person against such liability under the provisions of this
Agreement.
(e) For purposes of this Section 7.6, the Partnership shall be
deemed to have requested an Indemnitee to serve as fiduciary of an
employee benefit plan whenever the performance by such Indemnitee of
its duties to the Partnership also imposes duties on, or otherwise
involves services by, such Indemnitee to the plan or participants or
beneficiaries of the plan; excise taxes assessed on an Indemnitee with
respect to an employee benefit plan pursuant to applicable law shall
constitute fines within the meaning of this Section 7.6; and actions
taken or omitted by the Indemnitee with respect to an employee benefit
plan in the performance of its duties for a purpose reasonably believed
by it to be in the interest of the participants and beneficiaries of
the plan shall be deemed to be for a purpose which is not opposed to
the best interests of the Partnership.
(f) In no event may an Indemnitee subject any of the Partners
to personal liability by reason of the indemnification provisions set
forth in this Agreement.
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(g) An Indemnitee shall not be denied indemnification in whole
or in part under this Section 7.6 because the Indemnitee had an
interest in the transaction with respect to which the indemnification
applies if the transaction was otherwise permitted by the terms of this
Agreement.
(h) (i) The provisions of this Section 7.6 are for the benefit
of the Indemnities, their heirs, successors, assigns and
administrators and shall not be deemed to create any rights
for the benefit of any other Persons.
(ii) Any amendment, modification or repeal of this
Section 7.6 or any provision hereof shall be prospective only
and shall not in any way affect the Partnership's liability to
any Indemnitee under this Section 7.6, as in effect
immediately prior to such amendment, modification, or repeal
with respect to claims arising from or relating to matters
occurring, in whole or in part, prior to such amendment,
modification or repeal, regardless of when such claims may
arise or be asserted.
7.7 Liability of the General Partner
(a) Notwithstanding anything to the contrary set forth in this
Agreement, the General Partner and its officers and directors shall not
be liable for monetary damages to the Partnership, any Partners or any
Assignees for losses sustained or liabilities incurred as a result of
errors in judgment or mistakes of fact or law or of any act or omission
unless the General Partner acted in bad faith and the act or omission
was material to the matter giving rise to the loss, liability or
benefit not derived.
(b) (i) The Limited Partners expressly acknowledge that the
General Partner is acting on behalf of the Partnership and the
shareholders of the General Partner collectively, that the
General Partner, subject to the provisions of Section 7.1(e)
hereof, is under no obligation to consider the separate
interest of the Limited Partners (including, without
limitation, the tax consequences to Limited Partners or
Assignees) in deciding whether to cause the Partnership to
take (or decline to take) any actions, and that the General
Partner shall not be liable for monetary damages for losses
sustained, liabilities incurred, or benefits not derived by
Limited Partners in connection with such decisions; provided
that the General Partner has acted in good faith.
(ii) With respect to any indebtedness of the
Partnership which any Limited Partner may have guaranteed, the
General Partner shall have no duty to keep such indebtedness
outstanding.
(c) (i) Subject to its obligations and duties as General
Partner set forth in Section 7.1(a) hereof, the General
Partner may exercise any of the powers granted
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to it by this Agreement and perform any of the duties imposed
upon it hereunder either directly or by or through its agent.
(ii) The General Partner shall not be responsible for
any misconduct or negligence on the part of any such agent
appointed by the General Partner in good faith.
(d) The Limited Partners expressly acknowledge that in the
event of any conflict in the fiduciary duties owed by the General
Partner to its stockholders and by the General Partner, in its capacity
as a general partner of the Partnership, to the Limited Partners, the
General Partner may act in the best interests of the General Partner's
stockholders without violating its fiduciary duties to the Limited
Partners, and that the General Partner shall not be liable for monetary
damages for losses sustained, liabilities incurred, or benefits not
derived by the Limited Partners in connection with any such violation.
(e) Any amendment, modification or repeal of this Section 7.7
or any provision hereof shall be prospective only and shall not in any
way affect the limitations on the General Partner's and its officers'
and directors' liability to the Partnership and the Limited Partners
under this Section 7.7 as in effect immediately prior to such
amendment, modification or repeal with respect to claims arising from
or relating to matters occurring, in whole or in part, prior to such
amendment, modification or repeal, regardless of when such claims may
arise or be asserted.
7.8 Other Matters Concerning the General Partner
(a) The General Partner may rely and shall be protected in
acting, or refraining from acting, upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent,
order, bond, debenture, or other paper or document believed by it in
good faith to be genuine and to have been signed or presented by the
proper party or parties.
(b) The General Partner may consult with legal counsel,
accountants, appraisers, management consultants, investment bankers,
architects, engineers, environmental consultants and other consultants
and advisers selected by it, and any act taken or omitted to be taken
in reliance upon the opinion of such Persons as to matters which such
General Partner reasonably believes to be within such Person's
professional or expert competence shall be conclusively presumed to
have been done or omitted in good faith and in accordance with such
opinion.
(c) (i) The General Partner shall have the right, in respect
of any of its powers or obligations hereunder, to act through
any of its duly authorized officers and duly appointed
attorneys-in-fact.
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(ii) Each such attorney shall, to the extent provided
by the General Partner in the power of attorney, have full
power and authority to do and perform each and every act and
duty which is permitted or required to be done by the General
Partner hereunder.
(d) Notwithstanding any other provisions of this Agreement or
the Act, any action of the General Partner on behalf of the Partnership
or any decision of the General Partner to refrain from acting on behalf
of the Partnership, undertaken in the good faith belief that such
action or omission is necessary or advisable in order
(i) to protect the ability of the General Partner to
continue to qualify as a REIT; or
(ii) to avoid the General Partner incurring any taxes
under Section 857 or Section 4981 of the Code,
is expressly authorized under this Agreement and is deemed approved by
all of the Limited Partners.
7.9 Title to Partnership Assets
(a) Title to Partnership assets, whether real, personal or
mixed and whether tangible or intangible, shall be deemed to be owned
by the Partnership as an entity, and no Partner, individually or
collectively, shall have any ownership interest in such Partnership
assets or any portion thereof.
(b) (i) Title to any or all of the Partnership assets may be
held in the name of the Partnership, the General Partner or
one or more nominees, as the General Partner may determine,
including Affiliates of the General Partner.
(ii) The General Partner hereby declares and warrants
that any Partnership asset for which legal title is held in
the name of the General Partner or any nominee or Affiliate of
the General Partner shall be held by the General Partner for
the use and benefit of the Partnership in accordance with the
provisions of this Agreement; provided, that the General
Partner shall use its best efforts to cause beneficial and
record title to such assets to be vested in the Partnership as
soon as reasonably practicable.
(iii) All Partnership assets shall be recorded as the
property of the Partnership in its books and records,
irrespective of the name in which legal title to such
Partnership assets is held.
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7.10 Reliance by Third Parties
(a) Notwithstanding anything to the contrary in this
Agreement, any Person dealing with the Partnership shall be entitled to
assume that the General Partner has full power and authority, without
consent or approval of any other Partner or Person, to encumber, sell
or otherwise use in any manner any and all assets of the Partnership
and to enter into any contracts on behalf of the Partnership, and take
any and all actions on behalf of the Partnership, and such Person shall
be entitled to deal with the General Partner as if the General Partner
were the Partnership's sole party in interest, both legally and
beneficially.
(b) Each Limited Partner hereby waives any and all defenses
or other remedies which may be available against such Person to
contest, negate or disaffirm any action of the General Partner in
connection with any such dealing.
(c) In no event shall any Person dealing with the General
Partner or its representatives be obligated to ascertain that the terms
of this Agreement have been complied with or to inquire into the
necessity or expediency of any act or action of the General Partner or
its representatives.
(d) Each and every certificate, document or other instrument
executed on behalf of the Partnership by the General Partner or its
representatives shall be conclusive evidence in favor of any and every
Person relying thereon or claiming thereunder that
(i) at the time of the execution and delivery of such
certificate, document or instrument, this Agreement was in
full force and effect;
(ii) the Person executing and delivering such
certificate, document or instrument was duly authorized and
empowered to do so for and on behalf of the Partnership; and
(iii) such certificate, document or instrument was
duly executed and delivered in accordance with the terms and
provisions of this Agreement and is binding upon the
Partnership.
ARTICLE 8
RIGHTS AND OBLIGATIONS OF LIMITED PARTNERS
8.1 Limitation of Liability
The Limited Partners shall have no liability under this Agreement
except as expressly provided in this Agreement, including Section 10.5 hereof,
or under the Act.
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8.2 Management of Business
(a) No Limited Partner or Assignee (other than the General
Partner, any of its Affiliates or any officer, director, employee,
agent or trustee of the General Partner, the Partnership or any of
their Affiliates, in their capacity as such) shall take part in the
operation, management or control (within the meaning of the Act) of the
Partnership's business, transact any business in the Partnership's name
or have the power to sign documents for or otherwise bind the
Partnership.
(b) The transaction of any such business by the General
Partner, any of its Affiliates or any officer, director, employee,
partner, agent or trustee of the General Partner, the Partnership or
any of their Affiliates, in their capacity as such, shall not affect,
impair or eliminate the limitations on the liability of the Limited
Partners or Assignees under this Agreement.
8.3 Outside Activities of Limited Partners
(a) Subject to any agreements entered into pursuant to Section
7.5 hereof and any other agreements entered into by a Limited Partner
or its Affiliates with the Partnership or any of its Subsidiaries, any
Limited Partner and any officer, director, employee, agent, trustee,
Affiliate or shareholder of any Limited Partner shall be entitled to
and may have business interests and engage in business activities in
addition to those relating to the Partnership, including business
interests and activities that are in direct competition with the
Partnership or that are enhanced by the activities of the Partnership.
(b) Neither the Partnership nor any Partners shall have any
rights by virtue of this Agreement in any business ventures of any
Limited Partner or Assignee.
(c) None of the Limited Partners nor any other Person shall
have any rights by virtue of this Agreement or the Partnership
relationship established hereby in any business ventures of any other
Person and such Person shall have no obligation pursuant to this
Agreement to offer any interest in any such business ventures to the
Partnership, any Limited Partner or any such other Person, even if such
opportunity is of a character which, if presented to the Partnership,
any Limited Partner or such other Person, could be taken by such
Person.
8.4 Return of Capital
(a) Except pursuant to the Exchange Rights Agreement, no
Limited Partner shall be entitled to the withdrawal or return of its
Capital Contribution, except to the extent of distributions made
pursuant to this Agreement or upon termination of the Partnership as
provided herein.
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(b) Except to the extent provided by Exhibit B, or as
otherwise expressly provided in this Agreement, no Limited Partner or
Assignee shall have priority over any other Limited Partner or
Assignee, either as to the return of Capital Contributions or as to
profits, losses or distributions.
8.5 Rights of Limited Partners Relating to the Partnership
(a) In addition to the other rights provided by this Agreement
or by the Act, and except as limited by Section 8.5(b) hereof, each
Limited Partner shall have the right, for a purpose reasonably related
to such Limited Partner's interest as a limited partner in the
Partnership, upon written demand with a statement of the purpose of
such demand and at such Limited Partner's own expense (including such
reasonable copying and administrative charges as the General Partner
may establish from time to time):
(i) to obtain a copy of the most recent annual and
quarterly reports filed with the Securities and Exchange
Commission by the General Partner pursuant to the Securities
Exchange Act of 1934;
(ii) to obtain a copy of the Partnership's federal,
state and local income tax returns for each Partnership Year;
(iii) to obtain a current list of the name and last
known business, residence or mailing address of each Partner;
(iv) to obtain a copy of this Agreement and the
Certificate and all amendments or restatements thereto,
together with executed copies of all powers of attorney
pursuant to which this Agreement, the Certificate and all
amendments and/or restatements thereto have been executed; and
(v) to obtain true and full information regarding the
amount of cash and a description and statement of any other
property or services contributed by each Partner and which
each Partner has agreed to contribute in the future, and the
date on which each became a Partner.
(b) Notwithstanding any other provision of this Section 8.5,
the General Partner may keep confidential from the Limited Partners,
for such period of time as the General Partner determines in its sole
and absolute discretion to be reasonable, any information that
(i) the General Partner reasonably believes to be in
the nature of trade secrets or other information, the
disclosure of which the General Partner in good faith believes
is not in the best interests of the Partnership or could
damage the Partnership or its business; or
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(ii) the Partnership is required by law or by
agreements with an unaffiliated third party to keep
confidential.
8.6 Exchange Rights Agreement
(a) The Limited Partners have been granted the right, but not
the obligation, to exchange all or a portion of their OP Units for cash
or, at the option of the General Partner, for shares of REIT Stock on
the terms and subject to the conditions and restrictions contained in
that certain Exchange Rights Agreement among the General Partners and
the Limited Partners (as amended from time to time, the "Exchange
Rights Agreement"), the form of which is attached hereto as Exhibit E.
(b) The Limited Partners and all successors, assignees and
transferees (whether by operation of law, including by merger or
consolidation, dissolution or liquidation of an entity that is a
Limited Partner, or otherwise) shall be bound by the provisions of the
Exchange Rights Agreement.
ARTICLE 9
BOOKS, RECORDS, ACCOUNTING AND REPORTS
9.1 Records and Accounting
(a) The General Partner shall keep or cause to be kept at the
principal office of the Partnership those records and documents
required to be maintained by the Act and other books and records deemed
by the General Partner to be appropriate with respect to the
Partnership's business, including, without limitation, all books and
records necessary for the General Partner to comply with applicable
REIT Requirements and to provide to the Limited Partners any
information, lists and copies of documents required to be provided
pursuant to Sections 8.5(a) and 9.3 hereof.
(b) Any records maintained by or on behalf of the Partnership
in the regular course of its business may be kept on, or be in the form
of, punch cards, magnetic tape, photographs, micrographics or any other
information storage device, provided that the records so maintained are
convertible into clearly legible written form within a reasonable
period of time.
(c) The books of the Partnership shall be maintained, for
financial and tax reporting purposes, on an accrual basis in accordance
with generally accepted accounting principles, or such other basis as
the General Partner determines to be necessary or appropriate.
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9.2 Fiscal Year
The fiscal year of the Partnership shall be the calendar year.
9.3 Reports
(a) As soon as practicable, but in no event later than the
date on which the General Partner mails its annual report to its
Stockholders, the General Partner shall cause to be mailed to each
Limited Partner as of the close of the Partnership Year, an annual
report containing financial statements of the Partnership, or of the
General Partner, if such statements are prepared on a consolidated
basis with the Partnership, for such Partnership Year, presented in
accordance with GAAP, such statements to be audited by a nationally
recognized firm of independent public accountants selected by the
General Partner in its sole discretion.
(b) If and to the extent that the General Partner mails
quarterly reports to its Stockholders, then as soon as practicable, but
in no event later than the date such reports are mailed, the General
Partner shall cause to be mailed to each Limited Partner a report
containing unaudited financial statements as of the last day of the
calendar quarter of the Partnership, or of the General Partner, if such
statements are prepared on a consolidated basis with the Partnership,
and such other information as may be required by applicable law or
regulation, or as the General Partner determines to be appropriate.
ARTICLE 10
TAX MATTERS
10.1 Preparation of Tax Returns
The General Partner shall arrange for the preparation and timely filing
of all returns of Partnership income, gains, deductions, losses and other items
required of the Partnership for federal and state income tax purposes and shall
use all reasonable efforts to furnish, within ninety (90) days of the close of
each taxable year, the tax information reasonably required by Limited Partners
for federal and state income tax reporting purposes.
10.2 Tax Elections
(a) Except as otherwise provided herein, the General Partner
shall, in its sole and absolute discretion, determine whether to make
any available election pursuant to the Code; provided, however, that
the General Partner shall make the election under Section 754 of the
Code in accordance with applicable regulations thereunder effective for
the first calendar year following the Effective Date.
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(b) The General Partner shall elect a permissible method of
eliminating the disparity between the book value and the tax basis of
property contributed to the Partnership or to a Subsidiary of the
Partnership pursuant to the regulations promulgated under the
provisions of Section 704(c) of the Code.
(c) The General Partner shall have the right to seek to revoke
any tax election it makes, including, without limitation, the election
under Section 754 of the Code, upon the General Partner's
determination, in its sole and absolute discretion, that such
revocation is in the best interests of the Partners.
10.3 Tax Matters Partner
(a) (i) The General Partner shall be the "tax matters partner"
of the Partnership for federal income tax purposes.
(ii) Pursuant to Section 6230(e) of the Code, upon
receipt of notice from the Internal Revenue Service of the
beginning of an administrative proceeding with respect to the
Partnership, the tax matters partner shall furnish the
Internal Revenue Service with the name, address, taxpayer
identification number, and profit interest of each of the
Limited Partners and the Assignees; provided, that such
information is provided to the Partnership by the Limited
Partners and the Assignees.
(iii) The tax matters partner is authorized, but not
required:
(A) to enter into any settlement with the
Internal Revenue Service with respect to any
administrative or judicial proceedings for the
adjustment of Partnership items required to be taken
into account by a Partner for income tax purposes
(such administrative proceedings being referred to as
a "tax audit" and such judicial proceedings being
referred to as "judicial review"), and in the
settlement agreement the tax matters partner may
expressly state that such agreement shall bind all
Partners, except that such settlement agreement shall
not bind any Partner
(I) who (within the time prescribed
pursuant to the Code and Regulations) files
a statement with the Internal Revenue
Service providing that the tax matters
partner shall not have the authority to
enter into a settlement agreement on behalf
of such Partner; or
(II) who is a "notice partner" (as
defined in Section 6231(a)(8) of the Code)
or a member of a "notice group" (as defined
in Section 6223(b)(2) of the Code);
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(B) in the event that a notice of a final
administrative adjustment at the Partnership level of
any item required to be taken into account by a
Partner for tax purposes (a "final adjustment") is
mailed to the tax matters partner, to seek judicial
review of such final adjustment, including the filing
of a petition for readjustment with the Tax Court or
the filing of a complaint for refund with the United
States Claims Court or the District Court of the
United States for the district in which the
Partnership's principal place of business is located;
(C) to intervene in any action brought by
any other Partner for judicial review of a final
adjustment;
(D) to file a request for an administrative
adjustment with the Internal Revenue Service and, if
any part of such request is not allowed by the
Internal Revenue Service, to file an appropriate
pleading (petition or complaint) for judicial review
with respect to such request;
(E) to enter into an agreement with the
Internal Revenue Service to extend the period for
assessing any tax which is attributable to any item
required to be taken account of by a Partner for tax
purposes, or an item affected by such item; and
(F) to take any other action on behalf of
the Partners or the Partnership in connection with
any tax audit or judicial review proceeding to the
extent permitted by applicable law or regulations.
The taking of any action and the incurring of any expense by
the tax matters partner in connection with any such
proceeding, except to the extent required by law, is a matter
in the sole and absolute discretion of the tax matters partner
and the provisions relating to indemnification of the General
Partner set forth in Section 7.6 of this Agreement shall be
fully applicable to the tax matters partner in its capacity as
such.
(c) (i) The tax matters partner shall receive no compensation
for its services.
(ii) All third party costs and expenses incurred by
the tax matters partner in performing its duties as such
(including legal and accounting fees and expenses) shall be
borne by the Partnership.
(iii) Nothing herein shall be construed to restrict
the Partnership from engaging an accounting firm to assist the
tax matters partner in discharging its
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duties hereunder, so long as the compensation paid by the
Partnership for such services is reasonable.
10.4 Organizational Expenses
The Partnership shall elect to deduct expenses, if any, incurred by it
in organizing the Partnership ratably over a sixty (60) month period as provided
in Section 709 of the Code.
10.5 Withholding
(a) Each Limited Partner hereby authorizes the Partnership to
withhold from, or pay on behalf of or with respect to, such Limited
Partner any amount of federal, state, local, or foreign taxes that the
General Partner determines that the Partnership is required to withhold
or pay with respect to any amount distributable or allocable to such
Limited Partner pursuant to this Agreement, including, without
limitation, any taxes required to be withheld or paid by the
Partnership pursuant to Sections 1441, 1442, 1445, or 1446 of the Code.
(b) (i) Any amount paid on behalf of or with respect to a
Limited Partner shall constitute a loan by the Partnership to
such Limited Partner, which loan shall be repaid by such
Limited Partner within fifteen (15) days after notice from the
General Partner that such payment must be made unless
(A) the Partnership withholds such payment
from a distribution which would otherwise be made to
the Limited Partner; or
(B) the General Partner determines, in its
sole and absolute discretion, that such payment may
be satisfied out of the available funds of the
Partnership which would, but for such payment, be
distributed to the Limited Partner.
(ii) Any amounts withheld pursuant to the foregoing
clauses (i)(A) or (B) shall be treated as having been
distributed to such Limited Partner.
(c) (i) Each Limited Partner hereby unconditionally and
irrevocably grants to the Partnership a security interest in
such Limited Partner's Partnership Interest to secure such
Limited Partner's obligation to pay to the Partnership any
amounts required to be paid pursuant to this Section 10.5.
(ii) (A) In the event that a Limited Partner fails to
pay when due any amounts owed to the Partnership
pursuant to this Section 10.5, the General Partner
may, in its sole and absolute discretion, elect to
make the payment to the Partnership on behalf of such
defaulting Limited Partner,
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and in such event shall be deemed to have loaned such
amount to such defaulting Limited Partner and shall
succeed to all rights and remedies of the Partnership
as against such defaulting Limited Partner.
(B) Without limitation, in such event, the
General Partner shall have the right to receive
distributions that would otherwise be distributable
to such defaulting Limited Partner until such time as
such loan, together with all interest thereon, has
been paid in full, and any such distributions so
received by the General Partner shall be treated as
having been distributed to the defaulting Limited
Partner and immediately paid by the defaulting
Limited Partner to the General Partner in repayment
of such loan.
(iii) Any amount payable by a Limited Partner
hereunder shall bear interest at the highest base or prime
rate of interest published from time to time by any of
Citibank, N.A., Chemical Bank, Xxxxxx Guaranty Trust Company
of New York and Chase Manhattan Bank, N.A., plus four (4)
percentage points, but in no event higher than the maximum
lawful rate of interest on such obligation, such interest to
accrue from the date such amount is due (i.e., fifteen (15)
days after demand) until such amount is paid in full.
(iv) Each Limited Partner shall take such actions as
the Partnership or the General Partner shall request in order
to perfect or enforce the security interest created hereunder.
ARTICLE 11
TRANSFERS AND WITHDRAWALS
11.1 Transfer
(a) (i) The term "Transfer," when used in this Article 11 with
respect to an OP Unit, shall be deemed to refer to a
transaction by which
(A) the General Partner purports to assign
all or any part of its General Partner Interest to
another Person or
(B) a Limited Partner purports to assign all
or any part of its Limited Partner Interest to
another Person.
(ii) The term "Transfer" when used in this Article 11
does not include any exchange of OP Units for cash or REIT
Stock pursuant to the Exchange Rights Agreement.
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(b) (i) No Partnership Interest shall be Transferred, in whole
or in part, except in accordance with the terms and conditions
set forth in this Article 11.
(ii) Any Transfer or purported Transfer of a
Partnership Interest not made in accordance with this Article
11 shall be null and void.
11.2 Transfer of the General Partner's General Partner Interest
(a) The General Partner may not Transfer any of its General
Partner Interest or withdraw as General Partner, or Transfer any of its
Limited Partner Interest, except
(i) if Limited Partners holding at least a majority
of the Percentage Interests of the Limited Partners (other
than Limited Partner Interests held by the General Partner or
any Affiliate thereof) consent to such Transfer or withdrawal,
(ii) if such Transfer is to an entity which is wholly
owned by the General Partner and is a Qualified REIT
Subsidiary as defined in Section 856(i) of the Code or
(iii) in connection with a transaction described in
Section 11.2(c) or 11.2(d) (as applicable).
(b) In the event the General Partner withdraws as general
partner of the Partnership in accordance with Section 11.2(a), the
General Partner's General Partner Interest shall immediately be
converted into a Limited Partner Interest.
(c) Except as otherwise provided in Section 11.2(d), the
General Partner shall not engage in any merger, consolidation or other
combination with or into another Person or sale of all or substantially
all of its assets, or any reclassification, or any recapitalization or
change of outstanding REIT Stock (other than a change in par value, or
from par value to no par value, or as a result of a subdivision or
combination of REIT Stock) (a "Transaction"), unless
(i) in connection with the Transaction all Limited
Partners will either receive, or will have the right to elect
to receive, for each OP Unit an amount of cash, securities, or
other property equal to the product of the Exchange Factor and
the greatest amount of cash, securities or other property or
value paid in the Transaction to or received by a holder of
one share of REIT Stock in consideration of one share of REIT
Stock at any time during the period from and after the date on
which the Transaction is consummated; provided that if, in
connection with the Transaction, a purchase, tender or
exchange offer ("Offer") shall have been made to and accepted
by the holders of more than 50% of the outstanding REIT Stock,
each holder of OP Units shall be given the option to
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exchange its OP Units for the greatest amount of cash,
securities, or other property which a Limited Partner would
have received had it
(A) exercised its Exchange Right and
(B) sold, tendered or exchanged pursuant to
the Offer the REIT Stock received upon exercise of
the Exchange Right immediately prior to the
expiration of the Offer; and
(ii) no more than 75% of the equity securities of the
acquiring Person in such Transaction shall be owned, after
consummation of such Transaction, by the General Partner or
Persons who were Affiliates of the Partnership or the General
Partner immediately prior to the date on which the Transaction
is consummated.
(d) (i) Notwithstanding Section 11.2(c), the General Partner
may merge into or consolidate with another entity if
immediately after such merger or consolidation
(A) substantially all of the assets of the
successor or surviving entity (the "Surviving General
Partner"), other than OP Units held by the General
Partner, are contributed to the Partnership as a
Capital Contribution in exchange for OP Units with a
fair market value equal to the value of the assets so
contributed as determined by the Surviving General
Partner in good faith and
(B) the Surviving General Partner expressly
agrees to assume all obligations of the General
Partner hereunder.
(ii) (A) Upon such contribution and assumption, the
Surviving General Partner shall have the right and duty to
amend this Agreement and the Exchange Rights Agreement as set
forth in this Section 11.2(d).
(B) (I) The Surviving General Partner shall
in good faith arrive at a new method for the
calculation of the Exchange Factor for an OP
Unit after any such merger or consolidation
so as to approximate the existing method for
such calculation as closely as reasonably
possible.
(II) Such calculation shall take
into account, among other things, the kind
and amount of securities, cash and other
property that was receivable upon such
merger or consolidation by a holder of REIT
Stock or options, warrants or other rights
relating
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thereto, and which a holder of OP Units
could have acquired had such OP Units been
redeemed for REIT Stock immediately prior to
such merger or consolidation.
(C) Such amendment to this Agreement shall
provide for adjustment to such method of calculation,
which shall be as nearly equivalent as may be
practicable to the adjustments provided for with
respect to the Exchange Factor.
(iii) The above provisions of this Section 11.2(d)
shall similarly apply to successive mergers or consolidations
permitted hereunder.
11.3 Limited Partners' Rights to Transfer
(a) Subject to the provisions of Sections 11.3(c), 11.3(d),
11.3(e) and 11.4 and the restrictions included in the applicable
Lock-up Agreement, a Limited Partner may, without the consent of the
General Partner, Transfer all or any portion of its Limited Partnership
Interest.
(b) (i) If a Limited Partner is Incapacitated, the executor,
administrator, trustee, committee, guardian, conservator or
receiver of such Limited Partner's estate shall have all of
the rights of a Limited Partner, but not more rights than
those enjoyed by other Limited Partners, for the purpose of
settling or managing the estate and such power as the
Incapacitated Limited Partner possessed to Transfer all or any
part of his or its interest in the Partnership.
(ii) The Incapacity of a Limited Partner, in and of
itself, shall not dissolve or terminate the Partnership.
(c) The General Partner may prohibit any Transfer by a Limited
Partner of its OP Units if, in the opinion of legal counsel to the
Partnership, such Transfer would require filing of a registration
statement under the Securities Act of 1933, as amended, or would
otherwise violate any federal or state securities laws or regulations
applicable to the Partnership or the OP Units.
(d) No Transfer by a Limited Partner of its OP Units may be
made to any Person if
(i) in the opinion of legal counsel of the
Partnership, it would adversely affect the ability of the
General Partner to continue to qualify as a REIT or would
subject the General Partner to any additional taxes under
Section 857 or Section 4981 of the Code;
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(ii) in the opinion of legal counsel for the
Partnership, it would result in the Partnership being treated
as an association taxable as a corporation for federal income
tax purposes;
(iii) such Transfer would cause the Partnership to
become, with respect to any employee benefit plan subject to
Title I of ERISA, a "party-in-interest" (as defined in Section
3(14) of ERISA) or a "disqualified person" (as defined in Sec-
tion 4975(c) of the Code);
(iv) such Transfer would, in the opinion of legal
counsel for the Partnership, cause any portion of the assets
of the Partnership to constitute assets of any employee
benefit plan pursuant to Department of Labor Regulations Sec
tion 2510.2-101;
(v) such Transfer would subject the Partnership to
regulation under the Investment Company Act of 1940, the
Investment Advisors Act of 1940 or the Employee Retirement
Income Security Act of 1974, each as amended;
(vi) without the consent of the General Partner,
which consent may be withheld in its sole and absolute
discretion, such Transfer is a sale or exchange, and such sale
or exchange would, when aggregated with all other sales and
exchanges during the 12-month period ending on the date of the
proposed Transfer, result in 50% or more of the interests in
Partnership capital and profits being sold or exchanged during
such 12-month period; or
(vii) such Transfer is effectuated through an
"established securities market" or a "secondary market (or the
substantial equivalent thereof)" within the meaning of Section
7704 of the Code.
(e) No transfer of any OP Units may be made to a lender to the
Partnership or any Person who is related (within the meaning of
Regulations Section 1.752-4(b)) to any lender to the Partnership whose
loan constitutes a nonrecourse liability (within the meaning of
Regulations Section 1.752-1(a)(2)), without the consent of the General
Partner, which may be withheld in its sole and absolute discretion,
provided that as a condition to such consent the lender will be
required to enter into an arrangement with the Partnership and the
General Partner to exchange for the Cash Amount (as such term is
defined in the Exchange Rights Agreement) any OP Units in which a
security interest is held simultaneously with the time at which such
lender would be deemed to be a partner in the Partnership for purposes
of allocating liabilities to such lender under Section 752 of the Code.
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(f) Any Transfer in contravention of any of the provisions of
this Section 11.3 shall be void and ineffectual and shall not be
binding upon, or recognized by, the Partnership.
11.4 Substituted Limited Partners
(a) (i) No Limited Partner shall have the right to substitute
a Permitted Transferee for a Limited Partner in his place.
(ii) The General Partner shall, however, have the
right to consent to the admission of a Permitted Transferee of
the Partnership Interest of a Limited Partner pursuant to this
Section 11.4 as a Substitute Limited Partner, which consent
may be given or withheld by the General Partner in its sole
and absolute discretion.
(iii) The General Partner's failure or refusal to
permit such transferee to become a Substituted Limited Partner
shall not give rise to any cause of action against the
Partnership or any Partner.
(b) A transferee who has been admitted as a Substituted
Limited Partner in accordance with this Article 11 shall have all the
rights and powers and be subject to all the restrictions and
liabilities of a Limited Partner under this Agreement.
(c) (i) No Permitted Transferee will be admitted as a
Substituted Limited Partner unless such transferee has
furnished to the General Partner
(A) evidence of acceptance in form
satisfactory to the General Partner of all of the
terms and conditions of this Agreement and the
Exchange Rights Agreement, including, without
limitation, the power of attorney granted in Section
2.4 hereof, and
(B) such other documents or instruments as
may be required in the reasonable discretion of the
General Partner in order to effect such Person's
admission as a Substituted Limited Partner.
(ii) Upon the admission of a Substituted Limited
Partner, the General Partner shall amend Exhibit A to reflect
the name, address, number of OP Units, and Percentage Interest
of such Substituted Limited Partner and to eliminate or
adjust, if necessary, the name, address and interest of the
predecessor of such Substituted Limited Partner.
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11.5 Assignees
(a) If the General Partner, in its sole and absolute
discretion, does not consent to the admission of any transferee as a
Substituted Limited Partner, as described in Sec tion 11.4(a), such
transferee shall be considered an Assignee for purposes of this
Agreement.
(b) An Assignee shall be deemed to have had assigned to it,
and shall be entitled to receive distributions from the Partnership and
the share of Net Income, Net Losses and any other items, gain, loss
deduction and credit of the Partnership attributable to the OP Units
assigned to such transferee, but shall not be deemed to be a holder of
OP Units for any other purpose under this Agreement, and shall not be
entitled to vote such OP Units in any matter presented to the Limited
Partners for a vote (such OP Units being deemed to have been voted on
such matter in the same proportion as all other OP Units held by
Limited Partners are voted).
(c) In the event any such transferee desires to make a further
assignment of any such OP Units, such transferee shall be subject to
all of the provisions of this Article 11 to the same extent and in the
same manner as any Limited Partner desiring to make an assignment of OP
Units.
11.6 General Provisions
(a) No Limited Partner may withdraw from the Partnership other
than as a result of a permitted Transfer of all of such Limited
Partner's OP Units in accordance with this Article 11 or pursuant to
exchange of all of its OP Units pursuant to the Exchange Rights
Agreement.
(b) (i) Any Limited Partner which shall Transfer all of its OP
Units in a Transfer permitted pursuant to this Article 11
shall cease to be a Limited Partner upon the admission of all
Assignees of such OP Units as Substituted Limited Partners.
(ii) Similarly, any Limited Partner which shall
Transfer all of its OP Units pursuant to an exchange of all of
its OP Units pursuant to the Exchange Rights Agreement shall
cease to be a Limited Partner.
(c) Other than pursuant to the Exchange Rights Agreement or
without the consent of the General Partner, transfers pursuant to this
Article 11 may only be made as of the first day of a fiscal quarter of
the Partnership.
(d) (i) If any Partnership Interest is transferred or assigned
during the Partnership's fiscal year in compliance with the
provisions of this Article 11 or
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exchanged pursuant to the Exchange Rights Agreement on any day
other than the first day of a Partnership Year, then Net
Income, Net Losses, each item thereof and all other items
attributable to such interest for such Partnership Year shall
be divided and allocated between the transferor Partner and
the transferee Partner by taking into account their varying
interests during the Partnership Year in accordance with
Section 706(d) of the Code, using the interim closing of the
books method.
(ii) Solely for purposes of making such allocations,
each of such items for the calendar month in which the
Transfer or assignment occurs shall be allocated to the
transferee Partner, and none of such items for the calendar
month in which an exchange occurs shall be allocated to the
exchanging Partner, provided, however, that the General
Partner may adopt such other conventions relating to
allocations in connection with transfers, assignments, or
exchanges as it determines are necessary or appropriate.
(iii) All distributions of Available Cash
attributable to OP Units, with respect to which the
Partnership Record Date is before the date of such transfer,
assignment, or exchange of such OP Units, shall be made to the
transferor Partner or the exchanging Partner, as the case may
be, and in the case of a transfer or assignment other than an
exchange, all distributions of Available Cash thereafter
attributable to such OP Units shall be made to the transferee
Partner.
ARTICLE 12
ADMISSION OF PARTNERS
12.1 Admission of Successor General Partner
(a) (i) A successor to all of the General Partner Interest
pursuant to Sec tion 11 hereof who is proposed to be admitted as a
successor General Partner shall be admitted to the Partnership as the
General Partner, effective immediately following such transfer and the
admission of such successor General Partner as a general partner of the
Partnership upon the satisfaction of the terms and conditions set forth
in Section 12.1(b).
(ii) Any such transferee shall carry on the business
of the Partnership without dissolution.
(b) A Person shall be admitted as a substitute or successor
General Partner of the Partnership only if the following terms and
conditions are satisfied:
(i) the Person to be admitted as a substitute or
additional General Partner shall have accepted and agreed to
be bound by all the terms and provisions
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of this Agreement by executing a counterpart thereof and such
other documents or instruments as may be required or
appropriate in order to effect the admission of such Person as
a General Partner;
(ii) if the Person to be admitted as a substitute or
additional General Partner is a corporation or a partnership
it shall have provided the Partnership with evidence
satisfactory to counsel for the Partnership of such Person's
authority to become a General Partner and to be bound by the
terms and provisions of this Agreement; and
(iii) counsel for the Partnership shall have rendered
an opinion (relying on such opinions from other counsel as may
be necessary) that the admission of the person to be admitted
as a substitute or additional General Partner is in conformity
with the Act, that none of the actions taken in connection
with the admission of such Person as a substitute or
additional General Partner will cause
(A) the Partnership to be classified other
than as a partnership for federal income tax
purposes, or
(B) the loss of any Limited Partner's
limited liability.
(c) In the case of such admission on any day other than the
first day of a Partnership Year, all items attributable to the General
Partner Interest for such Partnership Year shall be allocated between
the transferring General Partner and such successor as provided in
Section 11.6(d) hereof.
12.2 Admission of Additional Limited Partners
(a) A Person who makes a Capital Contribution to the
Partnership in accordance with this Agreement shall be admitted to the
Partnership as an Additional Limited Partner only upon furnishing to
the General Partner
(i) evidence of acceptance in form satisfactory to
the General Partner of all of the terms and conditions of this
Agreement and the Exchange Rights Agreement, including,
without limitation, the power of attorney granted in Sec tion
2.4 hereof, and
(ii) such other documents or instruments as may be
required in the discretion of the General Partner in order to
effect such Person's admission as an Additional Limited
Partner.
(b) (i) Notwithstanding anything to the contrary in this
Section 12.2, no Person shall be admitted as an Additional
Limited Partner without the consent of
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the General Partner, which consent may be given or withheld in
the General Partner's sole and absolute discretion.
(ii) The admission of any Person as an Additional
Limited Partner shall become effective on the date upon which
the name of such Person is recorded on the books and records
of the Partnership, following the consent of the General
Partner to such admission.
(c) (i) If any Additional Limited Partner is admitted to the
Partnership on any day other than the first day of a
Partnership Year, then Net Income, Net Losses, each item
thereof and all other items allocable among Partners and
Assignees for such Partnership Year shall be allocated among
such Additional Limited Partner and all other Partners and
Assignees by taking into account their varying interests
during the Partnership Year in accordance with Section 706(d)
of the Code, using the interim closing of the books method.
(ii) (A) Solely for purposes of making such
allocations, each of such items for the calendar
month in which an admission of any Additional Limited
Partner occurs shall be allocated among all of the
Partners and Assignees, including such Additional
Limited Partner.
(B) distributions of Available Cash with
respect to which the Partnership Record Date is
before the date of such admission shall be made
solely to Partners and Assignees, other than the
Additional Limited Partner, and all distributions of
Available Cash thereafter shall be made to all of the
Partners and Assignees, including such Additional
Limited Partner.
(d) Upon the admission of the first Additional Limited Partner
to the Partnership, the Initial Limited Partner's original
interest in the Partnership shall automatically, and without
further action on the part of the Initial Limited Partner or
the Partnership, be withdrawn.
12.3 Amendment of Agreement and Certificate of Limited Partnership
For the admission to the Partnership of any Partner, the General
Partner shall take all steps necessary and appropriate under the Act to amend
the records of the Partnership and, if necessary, to prepare as soon as
practical an amendment of this Agreement (including an amendment of Exhibit A)
and, if required by law, shall prepare and file an amendment to the Certificate
and may for this purpose exercise the power of attorney granted pursuant to Sec
tion 2.4 hereof.
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ARTICLE 13
DISSOLUTION, LIQUIDATION AND TERMINATION
13.1 Dissolution
(a) The Partnership shall not be dissolved by the admission of
Substituted Limited Partners or Additional Limited Partners or by the
admission of a successor General Partner in accordance with the terms
of this Agreement.
(b) The Partnership shall dissolve, and its affairs shall be
wound up, only upon the first to occur of any of the following
("Liquidating Events"):
(i) the expiration of its term as provided in Section
2.5 hereof;
(ii) an event of withdrawal of the General Partner,
as defined in the Act (other than an event of bankruptcy),
unless, within ninety (90) days after such event of
withdrawal, a majority in interest of the remaining Partners
agree in writing to continue the business of the Partnership
and to the appointment, effective as of the date of
withdrawal, of a successor General Partner;
(iii) from and after the date of this Agreement
through December 31, 2047, an election to dissolve the
Partnership made by the General Partner, with the Consent of
Limited Partners holding at least a majority of the Percentage
Interest of the Limited Partners (including Limited Partner
Interests held by the General Partner);
(iv) on or after January 1, 2048, an election to
dissolve the Partnership made by the General Partner, in its
sole and absolute discretion;
(v) entry of a decree of judicial dissolution of the
Partnership pursuant to the provisions of the Act;
(vi) the sale of all or substantially all of the
assets and properties of the Partnership;
(vii) a final and non-appealable judgment is entered
by a court of competent jurisdiction ruling that the General
Partner is bankrupt or insolvent, or a final and
non-appealable order for relief is entered by a court with
appropriate jurisdiction against the General Partner, in each
case under any federal or state bankruptcy or insolvency laws
as now or hereafter in effect, unless prior to the entry of
such order or judgment all of the remaining Partners agree in
writing to continue the business of the Partnership and to the
appointment, effective as of a date prior to the date of such
order or judgment, of a substitute General Partner.
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13.2 Winding Up
(a) (i) Upon the occurrence of a Liquidating Event, the
Partnership shall continue solely for the purposes of winding
up its affairs in an orderly manner, liquidating its assets,
and satisfying the claims of its creditors and Partners.
(ii) No Partner shall take any action that is
inconsistent with, or not necessary to or appropriate for, the
winding up of the Partnership's business and affairs.
(iii) The General Partner, or, in the event there is
no remaining General Partner, any Person elected by Limited
Partners holding at least a majority of the Limited
Partnership Interests (the General Partner or such other
Person being referred to herein as the "Liquidator"), shall be
responsible for overseeing the winding up and dissolution of
the Partnership and shall take full account of the
Partnership's liabilities and property and the Partnership
property shall be liquidated as promptly as is consistent with
obtaining the fair value thereof, and the proceeds therefrom
(which may, to the extent determined by the General Partner,
include shares of common stock or other securities of the
General Partner) shall be applied and distributed in the
following order:
(A) First, to the payment and discharge of
all of the Partnership's debts and liabilities to
creditors other than the Partners;
(B) Second, to the payment and discharge of
all of the Partnership's debts and liabilities to the
General Partner;
(C) Third, to the payment and discharge of
all of the Partnership's debts and liabilities to the
other Partners; and
(D) The balance, if any, to the General
Partner and Limited Partners to the extent of and in
accordance with the positive balances in their
Capital Accounts, after giving effect to all
contributions, distributions, and allocations for all
periods.
(iv) The General Partner shall not receive any
additional compensation for any services performed pursuant to
this Article 13.
(v) Any distributions pursuant to this Section
13.2(a) shall be made by the end of the Partnership's taxable
year in which the liquidation occurs (or, if later, within 90
days after the date of the liquidation).
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(b) (i) Notwithstanding the provisions of Section 13.2(a)
hereof which require liquidation of the assets of the
Partnership, but subject to the order of priorities set forth
therein, if prior to or upon dissolution of the Partnership
the Liquidator determines that an immediate sale of part or
all of the Partnership's assets would be impractical or would
cause undue loss to the Partners, the Liquidator may, in its
sole and absolute discretion, defer for a reasonable time the
liquidation of any asset except those necessary to satisfy
liabilities of the Partnership (including to those Partners as
creditors) or distribute to the Partners, in lieu of cash, as
tenants in common and in accordance with the provisions of
Section 13.2(a) hereof, undivided interests in such
Partnership assets as the Liquidator deems not suitable for
liquidation.
(ii) Any such distributions in kind shall be made
only if, in the good faith judgment of the Liquidator, such
distributions in kind are in the best interests of the
Partners, and shall be subject to such conditions relating to
the disposition and management of such properties as the
Liquidator deems reasonable and equitable and to any
agreements governing the operation of such properties at such
time.
(iii) The Liquidator shall determine the fair market
value of any property distributed in kind using such
reasonable method of valuation as it may adopt.
(c) In the discretion of the Liquidator, a pro rata portion of
the distributions that would otherwise be made to the General
Partner and Limited Partners pursuant to this Article 13 may
be:
(A) distributed to a trust established for
the benefit of the General Partner and Limited
Partners for the purposes of liquidating Partnership
assets, collecting amounts owed to the Partnership,
and paying any contingent or unforeseen liabilities
or obligations of the Partnership or the General
Partner arising out of or in connection with the
Partnership; the assets of any such trust shall be
distributed to the General Partner and Limited
Partners from time to time, in the reasonable
discretion of the Liquidator, in the same proportions
as the amount distributed to such trust by the
Partnership would otherwise have been distributed to
the General Partner and Limited Partners pursuant to
this Agreement; or
(B) withheld or escrowed to provide a
reasonable reserve for Partnership liabilities
(contingent or otherwise) and to reflect the
unrealized portion of any installment obligations
owed to the Partnership, provided that such withheld
or escrowed amounts shall be distributed to
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the General Partner and Limited Partners in the
manner and order of priority set forth in Section
13.2(a) as soon as practicable.
13.3 No Obligation to Contribute Deficit
If any Partner has a deficit balance in his Capital Account (after
giving effect to all contributions, distributions and allocations for all
taxable years, including the year during which such liquidation occurs), such
Partner shall have no obligation to make any contribution to the capital of the
Partnership with respect to such deficit, and such deficit shall not be
considered a debt owed to the Partnership or to any other Person for any purpose
whatsoever.
13.4 Rights of Limited Partners
(a) Except as otherwise provided in this Agreement, each
Limited Partner shall look solely to the assets of the Partnership for
the return of its Capital Contributions and shall have no right or
power to demand or receive property other than cash from the
Partnership.
(b) Except as otherwise provided in this Agreement, no Limited
Partner shall have priority over any other Partner as to the return of
its Capital Contributions, distributions, or allocations.
13.5 Notice of Dissolution
In the event a Liquidating Event occurs or an event occurs that would,
but for the provisions of an election or objection by one or more Partners
pursuant to Section 13.1, result in a dissolution of the Partnership, the
General Partner shall, within thirty (30) days thereafter, provide written
notice thereof to each of the Partners.
13.6 Termination of Partnership and Cancellation of Certificate of
Limited Partnership
Upon the completion of the liquidation of the Partnership's assets, as
provided in Sec tion 13.2 hereof, the Partnership shall be terminated, a
certificate of cancellation shall be filed, and all qualifications of the
Partnership as a foreign limited partnership in jurisdictions other than the
state of Delaware shall be canceled and such other actions as may be necessary
to terminate the Partnership shall be taken.
13.7 Reasonable Time for Winding-Up
A reasonable time shall be allowed for the orderly winding-up of the
business and affairs of the Partnership and the liquidation of its assets
pursuant to Section 13.2 hereof in order to minimize any losses otherwise
attendant upon such winding-up, and the provisions of this Agreement shall
remain in effect among the Partners during the period of liquidation.
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13.8 Waiver of Partition
Each Partner hereby waives any right to partition of the Partnership
property.
ARTICLE 14
AMENDMENT OF PARTNERSHIP AGREEMENT; MEETINGS
14.1 Amendments
(a) (i) Amendments to this Agreement may be proposed by the
General Partner or by any Limited Partners holding in the
aggregate 25 percent or more of the Partnership Interests.
(ii) (A) Following such proposal, the General Partner
shall submit any proposed amendment to the Limited
Partners.
(B) The General Partner shall seek the written
vote of the Partners on the proposed amendment or
shall call a meeting to vote thereon and to
transact any other business that it may deem
appropriate.
(C) For purposes of obtaining a written vote,
the General Partner may require a response within a
reasonable specified time, but not less than fifteen
(15) days, and failure to respond in such time
period shall constitute a vote which is consistent
with the General Partner's recommendation with
respect to the proposal.
(D) Except as provided in Section 14.1(b),
14.1(c) or 14.1(d), a proposed amendment shall be
adopted and be effective as an amendment hereto if it
is approved by the General Partner and it receives
the Consent of Limited Partners holding at least a
majority of the Percentage Interests of the Limited
Partners (including Limited Partner Interests held by
the General Partner).
(b) (i) Notwithstanding Section 14.1(a), the General Partner
shall have the power, without the consent of the Limited
Partners, to amend this Agreement as may be required to
facilitate or implement any of the following purposes:
(A) 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;
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(B) to reflect the admission, substitution,
termination, or withdrawal of Partners in accordance
with this Agreement (which may be effected through
the amendment or replacement of Exhibit A);
(C) to set forth the designations, rights,
powers, duties, and preferences of the holders of any
additional Partnership Interests issued pursuant to
Section 4.3 hereof;
(D) to reflect a change that 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;
and
(E) 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.
(ii) The General Partner shall provide notice to the
Limited Partners when any action under this Section 14.1(b) is
taken in the next regular communication to the Limited
Partners.
(c) Notwithstanding Section 14.1(a) and 14.1(b) hereof, this
Agreement shall not be amended with respect to any Partner adversely
affected without the Consent of such Partner adversely affected if such
amendment would
(i) convert a Limited Partner's interest in the
Partnership into a General Partner Interest;
(ii) modify the limited liability of a Limited
Partner in a manner adverse to such Limited Partner; or
(iii) amend this Section 14.1(c).
This Section 14.1(c) does not require unanimous consent of all Partners
adversely affected unless the amendment is to be effective against all Partners
adversely affected.
(d) Notwithstanding Section 14.1(a) or Section 14.1(b) hereof,
the General Partner shall not amend, without the Consent of Limited
Partners holding a majority of the Percentage Interests of the Limited
Partners, Section 4.3 (a), Article 5, Article 6 (except that Articles V
and VI may be amended as permitted pursuant to Sections 4.3, 5.4, 6.2
and 14.1(b)(i)(c)), Section 7.4, 7.5, 11.2, or 13.1.
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14.2 Meetings of the Partners
(a) (i) Meetings of the Partners may be called by the General
Partner and shall be called upon the receipt by the General
Partner of a written request by Limited Partners holding 25
percent or more of the Partnership Interests.
(ii) The request shall state the nature of the
business to be transacted.
(iii) Notice of any such meeting shall be given to
all Partners not less than seven (7) days nor more than thirty
(30) days prior to the date of such meeting.
(iv) Partners may vote in person or by proxy at such
meeting.
(v) Whenever the vote or Consent of the Limited
Partners is permitted or required under this Agreement, such
vote or Consent may be given at a meeting of the Partners or
may be given in accordance with the procedure prescribed in
Section 14.1(a) hereof.
(vi) Except as otherwise expressly provided in this
Agreement, the Consent of holders of a majority of the
Percentage Interests held by Partners (including the General
Partner) shall control.
(b) (i) Any action required or permitted to be taken at a
meeting of the Partners may be taken without a meeting if a
written consent setting forth the action so taken is signed by
a majority of the Percentage Interests of the Partners (or
such other percentage as is expressly required by this
Agreement).
(ii) Such consent may be in one instrument or in
several instruments, and shall have the same force and effect
as a vote of a majority of the Percentage Interests of the
Partners (or such other percentage as is expressly required by
this Agreement).
(iii) Such consent shall be filed with the General
Partner.
(iv) An action so taken shall be deemed to have been
taken at a meeting held on the effective date of the consent
as certified by the General Partner.
(c) (i) Each Limited Partner may authorize any Person or
Persons to act for him by proxy on all matters in which a
Limited Partner is entitled to participate, including waiving
notice of any meeting, or voting or participating at a
meeting.
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(ii) Every proxy must be signed by the Limited
Partner or his attorney-in-fact and a copy thereof delivered
to the Partnership.
(iii) No proxy shall be valid after the expiration of
eleven (11) months from the date thereof unless otherwise
provided in the proxy.
(iv) Every proxy shall be revocable at the pleasure
of the Limited Partner executing it, such revocation to be
effective upon the General Partner's receipt of written notice
of such revocation from the Limited Partner executing such
proxy.
(d) (i) Each meeting of the Partners shall be conducted by the
General Partner or such other Person as the General Partner
may appoint pursuant to such rules for the conduct of the
meeting as the General Partner or such other Person deems
appropriate.
(ii) Meetings of Partners may be conducted in the
same manner as meetings of the stockholders of the General
Partner and may be held at the same time, and as part of,
meetings of the stockholders of the General Partner.
ARTICLE 15
GENERAL PROVISIONS
15.1 Addresses and Notice
Any notice, demand, request or report required or permitted to be given
or made to a Partner or Assignee under this Agreement shall be in writing and
shall be deemed given or made when delivered in person or when sent by first
class United States mail or by overnight delivery or via facsimile to the
Partner or Assignee at the address set forth in Exhibit A or such other address
of which the Partner shall notify the General Partner in writing.
15.2 Titles and Captions
All article or section titles or captions in this Agreement are for
convenience only, shall not be deemed part of this Agreement and shall in no way
define, limit, extend or describe the scope or intent of any provisions hereof.
Except as specifically provided otherwise, references to "Articles" and
"Sections" are to Articles and Sections of this Agreement.
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15.3 Pronouns and Plurals
Whenever the context may require, any pronoun used in this Agreement
shall include the corresponding masculine, feminine or neuter forms, and the
singular form of nouns, pronouns and verbs shall include the plural and vice
versa.
15.4 Further Action
The parties shall execute and deliver all documents, provide all
information and take or refrain from taking action as may be necessary or
appropriate to achieve the purposes of this Agreement.
15.5 Binding Effect
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their heirs, executors, administrators, successors, legal
representatives and permitted assigns.
15.6 Creditors
Other than as expressly set forth herein with respect to the
Indemnities, none of the provisions of this Agreement shall be for the benefit
of, or shall be enforceable by, any creditor of the Partnership.
15.7 Waiver
No failure by any party to insist upon the strict performance of any
covenant, duty, agreement or condition of this Agreement or to exercise any
right or remedy consequent upon a breach thereof shall constitute waiver of any
such breach or any other covenant, duty, agreement or condition.
15.8 Counterparts
This Agreement may be executed in counterparts, all of which together
shall constitute one agreement binding on all of the parties hereto,
notwithstanding that all such parties are not signatories to the original or the
same counterpart. Each party shall become bound by this Agreement immediately
upon affixing its signature hereto.
15.9 Applicable Law
This Agreement shall be construed and enforced in accordance with and
governed by the laws of the State of Delaware, without regard to the principles
of conflicts of laws thereof.
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15.10 Invalidity of Provisions
If any provision of this Agreement is or becomes invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein shall not be affected thereby.
15.11 Entire Agreement
This Agreement contains the entire understanding and agreement among
the Partners with respect to the subject matter hereof and supersedes any other
prior written or oral understandings or agreements among them with respect
thereto.
15.12 Merger
Subject to Section 4.2 herein, the Partnership may merge with, or
consolidate into, any Person or Entity in accordance with Section 17-211 of the
Act.
15.13 No Rights as Stockholders
Nothing contained in this Agreement shall be construed as conferring
upon the holders of the OP Units any rights whatsoever as stockholders of the
General Partner, including, without limitation, any right to receive dividends
or other distributions made to shareholders or to vote or to consent or receive
notice as shareholders in respect to any meeting or shareholders for the
election of directors of the General Partner or any other matter.
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Signature Page to Agreement of Limited Partnership of Tower
Realty Operating Partnership, L.P., by and among the undersigned and the other
parties thereto.
GENERAL PARTNER:
TOWER REALTY TRUST, INC.
By:
---------------------------
Name:
Title:
LIMITED PARTNER:
By:
---------------------------
Name:
Title:
70
CORPORATE/LIMITED LIABILITY COMPANY ADDITIONAL LIMITED PARTNER SIGNATURE PAGE TO
AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF TOWER REALTY OPERATING
PARTNERSHIP, L.P., BY AND AMONG THE UNDERSIGNED AND THE OTHER
PARTIES THERETO.
Dated: __________ __, 1997 [Name of Corporation/LLC]
By: ________________________
Name:
Title:
71
Exhibit A
Partners' Contributions and Partnership Interests
Type of Capital Number of Percentage Security
Name and Address of Partner Interest Contribution1 OP Units Interest Interests2
--------------------------- -------- ------------ -------- -------- ---------
Tower Realty Trust, Inc. General page A-2 8,154 1.00 page A-20
Tower Realty Trust, Inc. Limited page A-2 151,846 18.62 page A-20
Xxxxxxxx Xxxxxxx Limited pages A-3,4 236,870 29.05 page A-20
Tower Equities and Realty Corp. Limited page A-5 153,570 18.83
Xxxxxx Xxxxxxxx Limited page A-6 9,910 1.22
Xxxxxx Xxx Limited page A-7 9,910 1.22
Xxxx Xxxxxx Limited page A-8 9,910 1.22
2800 Company, L.L.C. Limited page A-9 40,790 5.00
Hannah Properties, Inc. Limited page A-10 62,740 7.69
Xxxxxx Xxxxx Limited page A-11 33,710 4.13
Forum Management & Realty Corp. Limited page A-12 24,000 2.94
Madison 40/41 Management Corp. Limited page A-13 24,000 2.94
CXX Mineola Management Corp. Limited page A-14 24,000 2.94
Tower Equities of Arizona, L.L.C. Limited page A-15 24,000 2.94
Corporate-Partners, L.L.C. Limited page A-16 200 2.02
Corporate-Xxxxxxx, L.L.C. Limited page X-00 000 .00
XXX Associates, L.P. Limited page A-18 889 .11
A-1
72
Type of Capital Number of Percentage Security
Name and Address of Partner Interest Contribution1 OP Units Interest Interests(2)
--------------------------- -------- ------------ -------- -------- ---------
Xxxxxxx Mot Portfolio Corp. Limited page A-19 111 .01
1. The Capital Contribution of each Partner is set forth on the page
referenced hereunder.
2. Security Interests are set forth on page A-21.
A-2
73
Exhibit B
Allocations
1. Allocation of Net Income and Net Loss.
(a) Net Income. Except as otherwise provided in this Exhibit B, Net
Income (or items thereof) (other than Net Income, or items thereof, arising in
connection with a Terminating Capital Transaction) for any fiscal year or other
applicable period shall be allocated to the Partners in accordance with their
respective Percentage Interests.
(b) Net Loss. Except as otherwise provided in this Exhibit B, Net Loss
(or items thereof) of the Partnership for each fiscal year or other applicable
period shall be allocated to the Partners in accordance with the Partners'
respective Percentage Interests. Notwithstanding the preceding sentence, to the
extent any Net Loss (or items thereof) allocated to a Partner under this
subparagraph (b) would cause such Partner (hereinafter, a "Restricted Partner")
to have an Adjusted Capital Account Deficit, or increase the amount of an
existing Adjusted Capital Account Deficit, as of the end of the fiscal year or
other applicable period to which such Net Loss relates, such Net Loss shall not
be allocated to such Restricted Partner and instead shall be allocated to the
other Partner(s) (hereinafter, the "Permitted Partners") pro rata in accordance
with each Permitted Partner's Percentage Interest.
(c) Terminating Capital Transaction; Liquidation. Allocations of Net
Income or Net Loss (or items thereof) in connection with a Terminating Capital
Transaction or liquidation of the Partnership shall first be made so that, to
the extent possible, each Partner's Capital Account balance is equal to such
Partner's Adjusted Contribution, and the remainder of such Net Income or Net
Loss (or items thereof) shall be allocated to the Partners in accordance with
their Percentage Interests. Notwithstanding the preceding sentence, to the
extent any Net Loss (or items thereof) would be allocated to a Restricted
Partner under this subparagraph (c), such Net Loss shall not be allocated to
such Restricted Partner and instead shall be allocated to the Permitted Partners
pro rata in accordance with each Permitted Partner's Percentage Interest.
(d) Rules of Construction.
(1) Capital Account Increases. For purposes of making
allocations pursuant to subparagraph 1(c) of this Exhibit B, a Partner's Capital
Account balance shall be deemed to be increased by such Partner's share of any
Partnership Minimum Gain and Partner Minimum Gain remaining at the close of the
fiscal period in respect of which such allocations are being made.
(2) Change in Percentage Interests. In the event any Partner's
Percentage Interest changes during a fiscal year for any reason, including
without limitation, the Transfer of any interest in the Partnership, the tax
allocations contained in this Exhibit B shall be applied as necessary to reflect
the varying interests of the Partners during such year.
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74
2. Special Allocations. Notwithstanding any provisions of paragraph 1 of this
Exhibit B, the following special allocations shall be made.
(a) Minimum Gain Chargeback (Nonrecourse Liabilities). Except as
otherwise provided in Section 1.704-2(f) of the Regulations, if there is a net
decrease in Partnership Minimum Gain for any Partnership fiscal year, each
Partner shall be specially allocated items of Partnership income and gain for
such year (and, if necessary, subsequent years) in an amount equal to such
Partner's share of the net decrease in Partnership Minimum Gain to the extent
required by Regulations Section 1.704-2(f). The items to be so allocated shall
be determined in accordance with Sections 1.704-2(f) and (i) of the Regulations.
This subparagraph 2(a) is intended to comply with the minimum gain chargeback
requirement in said section of the Regulations and shall be interpreted
consistently therewith. Allocations pursuant to this subparagraph 2(a) shall be
made in proportion to the respective amounts required to be allocated to each
Partner pursuant hereto.
(b) Partner Minimum Gain Chargeback. Except as otherwise provided in
Sec tion 1.704-2(i)(4) of the Regulations, if there is a net decrease in Partner
Minimum Gain attributable to a Partner Nonrecourse Debt during any fiscal year,
each Partner who has a share of the Partner Minimum Gain attributable to such
Partner Nonrecourse Debt, determined in accordance with Section 1.704-2(i)(5) of
the Regulations, shall be specially allocated items of Partnership income and
gain for such year (and, if necessary, subsequent years) in an amount equal to
that Partner's share of the net decrease in the Partner Minimum Gain
attributable to such Partner Nonrecourse Debt to the extent and in the manner
required by Section 1.704-2(i) of the Regulations. The items to be so allocated
shall be determined in accordance with Sections 1.704-2(i)(4) and (j)(2) of the
Regulations. This subparagraph 2(b) is intended to comply with the minimum gain
chargeback requirement with respect to Partner Nonrecourse Debt contained in
said section of the Regulations and shall be interpreted consistently therewith.
Allocations pursuant to this subparagraph 2(b) shall be made in proportion to
the respective amounts required to be allocated to each Partner pursuant hereto.
(c) Qualified Income Offset. In the event a Partner unexpectedly
receives any adjustments, allocations or distributions described in Sections
1.704-1(b)(2)(ii)(d)(4), (5) or (6) of the Regulations, and such Partner has an
Adjusted Capital Account Deficit, items of Partnership income (including gross
income) and gain shall be specially allocated to such Partner in an amount and
manner sufficient to eliminate the Adjusted Capital Account Deficit as quickly
as possible as required by the Regulations. This subparagraph 2(c) is intended
to constitute a "qualified income offset" under Section 1.704-1(b)(2)(ii)(d) of
the Regulations and shall be interpreted consistently therewith.
(d) Other Chargeback of Impermissible Negative Capital Account. To the
extent any Partner has an Adjusted Capital Account Deficit at the end of any
Partnership fiscal year, each such Partner shall be specially allocated items of
Partnership income (including gross income) and gain in the amount of such
excess as quickly as possible, provided that an allocation pursuant to this
paragraph 2(d) shall be made if and only to the extent that such Partner would
have an
B-2
75
Adjusted Capital Account Deficit after all other allocations provided for in
this Exhibit B have been tentatively made as if this paragraph 2(d) were not in
the Agreement.
(e) Nonrecourse Deductions. Nonrecourse Deductions for any fiscal year
or other applicable period shall be allocated to the Partners in accordance with
their respective Percentage Interests.
(f) Partner Nonrecourse Deductions. Partner Nonrecourse Deductions for
any fiscal year or other applicable period with respect to a Partner Nonrecourse
Debt shall be specially allocated to the Partner that bears the economic risk
of loss for such Partner Nonrecourse Debt (as determined under Sections
1.704-2(b)(4) and 1.704-2(i)(1) of the Regulations).
(g) Intent of Allocations. The parties intend that the allocation
provisions of this Exhibit B shall result in final Capital Account balances of
the Partners that initially are equal to each Partner's Adjusted Contribution
and are then in proportion to the Partners' respective Percentage Interests, so
that when liquidating distributions are made in accordance with such final
Capital Account balances under Section 13.2A(4) hereof, such distributions will
be able to return to each Partner its Adjusted Contribution and then will be
made in proportion to the Partners' respective Percentage Interests. To the
extent that such final Capital Account balances do not so reflect the provisions
of this Exhibit B, income and loss of the Partnership for the current year and
future years, as computed for book purposes, shall be allocated among the
Partners so as to result in final Capital Account balances reflecting the
provisions of this Exhibit B and to the extent such allocations of items of
income (including gross income) and deduction do not result in such final
Capital Account balances, then, income and loss of the Partnership for prior
open years, as computed for book purposes (or items of gross income and
deduction of the Partnership for such years, as computed for book purposes)
shall be reallocated among the Partners consistent with the foregoing. This
subparagraph shall control notwithstanding any reallocation of income, loss, or
items thereof, as computed for book purposes, by the Internal Revenue Service or
any other taxing authority.
(h) Section 754 Adjustment. To the extent an adjustment to the adjusted
tax basis of any asset of the Partnership pursuant to Section 734(b) of the Code
or Section 743(b) of the Code is required, pursuant to Section 1.704-1(b)(2)
(iv)(m) of the Regulations, to be taken into account in determining Capital
Accounts, the amount of such adjustment to the Capital Accounts shall be
treated as an item of gain (if the adjustment increases the basis of the asset)
or loss (if the adjustment decreases such basis) and such gain or loss shall be
specially allocated among the Partners in a manner consistent with the manner in
which each of their respective Capital Accounts are required to be adjusted
pursuant to such section of the Regulations.
(i) Gross Income Allocation. There shall be specially allocated to the
General Partner an amount of Partnership income and gain during each Partnership
Year or portion thereof, before any other allocations are made hereunder, which
is equal to the excess, if any, of the cumulative distributions of cash made to
the General Partner under Section 7.3B hereof over
B-3
76
the cumulative allocations of Partnership income and gain to the General Partner
pursuant to this Section 2(i) of this Exhibit B.
3. Tax Allocations.
(a) Items of Income or Loss. Except as is otherwise provided in this
Exhibit B, an allocation of Partnership Net Income or Net Loss to a Partner
shall be treated as an allocation to such Partner of the same share of each item
of income, gain, loss, deduction and item of tax-exempt income or Section
705(a)(2)(B) expenditure (or item treated as such expenditure pursuant to
Regulations Section 1.704-1(b)(2)(iv)(i)) ("Tax Items") that is taken into
account in computing Net Income or Net Loss.
(b) Section 1245/1250 Recapture. If any portion of gain from the sale
of Partnership assets is treated as gain which is ordinary income by virtue of
the application of Code Sections 1245 or 1250 ("Affected Gain"), then such
Affected Gain shall be allocated among the Partners in the same proportion that
the depreciation and amortization deductions giving rise to the Affected Gain
were allocated. This subparagraph 3(b) shall not alter the amount of Net Income
(or items thereof) allocated among the Partners, but merely the character of
such Net Income (or items thereof). For purposes hereof, in order to determine
the proportionate allocations of depreciation and amortization deductions for
each fiscal year or other applicable period, such deductions shall be deemed
allocated on the same basis as Net Income and Net Loss for such respective
period.
(c) Precontribution Gain, Revaluations. With respect to any Contributed
Property, the Partnership shall use any permissible method contained in the
Regulations promulgated under Section 704(c) of the Code selected by the General
Partner, in its sole discretion, to take into account any variation between the
adjusted basis of such asset and the fair market value of such asset as of the
time of the contribution ("Precontribution Gain"). Each Partner hereby agrees to
report income, gain, loss and deduction on such Partner's federal income tax
return in a manner consistent with the method used by the Partnership. If any
asset has a Gross Asset Value which is different from the Partnership's adjusted
basis for such asset for federal income tax purposes because the Partnership has
revalued such asset pursuant to Regulations Section 1.704- 1(b)(2)(iv)(f), the
allocations of Tax Items shall be made in accordance with the principles of
Section 704(c) of the Code and the Regulations and the methods of allocation
promulgated thereunder. The intent of this subparagraph 3(c) is that each
Partner who contributed to the capital of the Partnership a Contributed Property
will bear, through reduced allocations of depreciation, increased allocations of
gain or other items, the tax detriments associated with any Precontribution
Gain. This subparagraph 3(c) is to be interpreted consistently with such intent.
(d) Excess Nonrecourse Liability Safe Harbor. Pursuant to Regulations
Sec tion 1.752-3(a)(3), solely for purposes of determining each Partner's
proportionate share of the "excess nonrecourse liabilities" of the Partnership
(as defined in Regulations Section 1.752- 3(a)(3)), the Partners' respective
interests in Partnership profits shall be determined in accordance with each
Partner's Percentage Interest; provided, however, that each Partner who has
contributed
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77
an asset to the Partnership shall be allocated, to the extent possible, a share
of "excess nonrecourse liabilities" of the Partnership which results in such
Partner being allocated nonrecourse liabilities in an amount which is at least
equal to the amount of income pursuant to Section 704(c) of the Code and the
Regulations promulgated thereunder (the "Liability Shortfall"). In the event
there is an insufficient amount of nonrecourse liabilities to allocate to each
Partner an amount of nonrecourse liabilities equal to the Liability Shortfall,
then an amount of nonrecourse liabilities in proportion to, and to the extent
of, the Liability Shortfall shall be allocated to each Partner.
(e) References to Regulations. Any reference in this Exhibit B or the
Agreement to a provision of proposed and/or temporary Regulations shall, in the
event such provision is modified or renumbered, be deemed to refer to the
successor provision as so modified or renumbered, but only to the extent such
successor provision applies to the Partnership under the effective date rules
applicable to such successor provision.
(f) Successor Partners. For purposes of this Exhibit B, a transferee of
a Partnership Interest shall be deemed to have been allocated the Net Income,
Net Loss and other items of Partnership income, gain, loss, deduction and credit
allocable to the transferred Partnership Interest that previously have been
allocated to the transferor Partner pursuant to this Agreement.
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