EXHIBIT 7.1
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AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
THE XXXXXX XXXXXXX REAL ESTATE
SPECIAL SITUATIONS FUND II, L.P.
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Dated as of March 31, 1997
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
SECTION 1.01..................................................Definitions 1
ARTICLE II
GENERAL PROVISIONS
SECTION 2.01.............................................Partnership Name 1
SECTION 2.02.....................................Office; Registered Agent 1
SECTION 2.03..................................Purposes of the Partnership 2
SECTION 2.04..................................................Fiscal Year 2
SECTION 2.05.................................Admission of Limited Partner 2
SECTION 2.06..............................Liability of Partners Generally 2
SECTION 2.07.......................Representations of the Limited Partner 3
SECTION 2.08.......................Representations of the General Partner 4
ARTICLE III
MANAGEMENT AND OPERATIONS OF THE PARTNERSHIP
SECTION 3.01........................................Management Generally 4
SECTION 3.02............................Authority of the General Partner 4
SECTION 3.03.............................................Other Authority 4
SECTION 3.04...............................................Use of Agents 5
SECTION 3.05....................................................Expenses 5
SECTION 3.06............................................Other Activities 7
SECTION 3.07.............Books and Records; Accounting Method; Valuation 7
SECTION 3.08.....................................Partnership Tax Returns 7
SECTION 3.09...................................Reliance by Third Parties 8
SECTION 3.10...........................Certain Rights of Limited Partner 8
ARTICLE IV
INVESTMENTS AND INVESTMENT OPPORTUNITIES
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Page
SECTION 4.01.......................................Investments Generally 8
ARTICLE V
CAPITAL CONTRIBUTIONS
SECTION 5.01.....................................................Capital 9
ARTICLE VI
DISTRIBUTIONS, CAPITAL ACCOUNTS AND ALLOCATIONS
SECTION 6.01...........Capital Accounts; Adjustments to Capital Accounts 9
SECTION 6.02...............................................Distributions 10
SECTION 6.03...............................................Delaware Law. 10
ARTICLE VII
REPORTS TO LIMITED PARTNERS
SECTION 7.01.....................................................Reports 10
ARTICLE VIII
EXCULPATION AND INDEMNIFICATION
SECTION 8.01.............................Exculpation and Indemnification 11
ARTICLE IX
DURATION AND DISSOLUTION OF THE PARTNERSHIP
SECTION 9.01....................................................Duration 12
SECTION 9.02.................................................Dissolution 12
SECTION 9.03...................................Winding Up of Partnership 13
SECTION 9.04............Distribution Upon Dissolution of the Partnership 13
ARTICLE X
TRANSFERABILITY OF GENERAL PARTNER'S INTEREST
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SECTION 10.01..............Transferability of General Partner's Interest 13
SECTION 10.02....Removal of the General Partner; Resignation by the
General Partner 14
ARTICLE XI
TRANSFERABILITY OF LIMITED PARTNER'S INTEREST
SECTION 11.01..................No Transfer of Limited Partner's Interest 14
ARTICLE XII
MISCELLANEOUS
SECTION 12.01.................................Amendment to the Agreement 15
SECTION 12.02..................................Investment Representation 15
SECTION 12.03...................................Successors; Counterparts 15
SECTION 12.04................................Governing Law; Severability 15
SECTION 12.05....................................................Filings 15
SECTION 12.06..........................................Power of Attorney 16
SECTION 12.07...................................................Headings 16
SECTION 12.08.........................................Further Assurances 16
SECTION 12.09...................................................Goodwill 16
SECTION 12.10....................................................Notices 16
SECTION 12.11.........................................Authorized Persons 17
Appendix A -- Definitions
Appendix B -- Applicable Law
Exhibit A -- Management Agreement
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AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF THE XXXXXX XXXXXXX REAL
ESTATE SPECIAL SITUATIONS FUND II, L.P.
AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP dated as of March 31,
1997 of The Xxxxxx Xxxxxxx Real Estate Special Situations Fund II, L.P.
WHEREAS, MS Real Estate Special Situations GP Inc., in its capacity as
General Partner, and Xxxxxx X. Xxx, as the initial limited partner, have
heretofore entered into an Agreement of Limited Partnership dated as of March
27, 1997 (the "Original Agreement") and have formed a limited partnership
pursuant to the Delaware Act;
WHEREAS, the General Partner has offered to the Public Employers'
Retirement Association of Colorado, and the Public Employees' Retirement
Association of Colorado has accepted, the opportunity to purchase a limited
partner interest in the limited partnership; and
WHEREAS, the parties hereto desire to continue the limited partnership and
to amend and restate the Original Agreement in its entirety;
NOW, THEREFORE, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions. Capitalized terms used herein without definition
have the meanings assigned to them in Appendix A hereto.
ARTICLE II
GENERAL PROVISIONS
SECTION 2.01. Partnership Name. The name of the Partnership is The Xxxxxx
Xxxxxxx Real Estate Special Situations Fund II, L.P.
SECTION 2.02. Office; Registered Agent. (a) The Partnership shall maintain
a registered office in Delaware at, and the name and address of the
Partnership's registered agent in the State of Delaware is: The Corporation
Trust Company, Corporation Trust Center, 0000
Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx Xxxxxx, Xxxxxxxx 00000. Such office and
such agent may be changed from time to time by the General Partner. The business
address of the Partnership shall be in such place or places as the General
Partner shall determine in its discretion.
(b) The business address of the General Partner shall be 0000 Xxxxxx xx xxx
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or such other place as the General Partner
shall determine in its discretion.
SECTION 2.03. Purpose of the Partnership . The purpose of the Partnership
is to invest, through a separately managed account (the "Managed Account") to be
established pursuant to an investment management agreement (the "Management
Agreement") between the Partnership and Xxxxxx Xxxxxxx Asset Management Inc.
("MSAM"), substantially in the form of Exhibit A hereto (the terms of which the
Limited Partner hereby expressly acknowledges and agrees to), in those real
estate-related investments identified in Exhibit D to the Management Agreement,
and to do everything necessary, appropriate or desirable for the accomplishment
of the above purposes or the furtherance of any of such purposes or any of the
powers herein set forth and to do every other act and thing incident thereto or
connected therewith.
SECTION 2.04. Fiscal Year. The fiscal year of the Partnership (the "Fiscal
Year") for financial statement and federal income tax purposes shall be the same
and shall, except as otherwise required in accordance with the Code, end on
December 31st.
SECTION 2.05. Admission of Limited Partner. (a) The General Partner and the
initial limited partner hereby continue the Partnership as a limited partnership
under and pursuant to the Delaware Act.
(b) On the date hereof, the Public Employees' Retirement Association of
Colorado shall, upon execution and delivery by (or pursuant to a
power-of-attorney, on behalf of) such Person and the General Partner of
counterparts of this Agreement, become the Limited Partner and shall be shown as
such on the books and records of the Partnership.
(c) On the date hereof, following the admission of the Public Employees'
Retirement Association of Colorado to the Partnership, the initial limited
partner shall withdraw from the Partnership and shall be entitled to receive the
return of his contribution without interest or deduction.
SECTION 2.06. Liability of Partners Generally. (a) Except as otherwise
provided in the Delaware Act, the General Partner shall have the liabilities of
a partner in a partnership without limited partners to Persons other than the
Partnership and the Limited Partner. Except as otherwise provided in this
Agreement or the Delaware Act, the General Partner shall have the liabilities of
a partner in a partnership without limited partners to the Partnership and the
Limited Partner.
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(b) Except as otherwise provided in this Agreement or the Delaware Act, the
Limited Partner shall not be obligated to make any contribution to the
Partnership or have any liability for the debts and obligations of the
Partnership.
SECTION 2.07. Representations of the Limited Partner. The Limited Partner
represents, warrants and covenants to the General Partner that:
(a) Copies of Title 24, Article 51 of the Colorado Revised Statutes, the
Public Employees' Retirement Association of Colorado Investment Policy
Statements, the Public Employees' Retirement Association of Colorado Real Estate
Investment Policy and the Public Employees' Retirement Association of Colorado
Proxy Voting Policy which are binding on or adopted by the Limited Partner and
which are material to the Limited Partner's participation as a limited partner
of the Partnership including, without limitation, investments that are expected
to be made under the Management Agreement are attached as Appendix B;
(b) it has full power and authority under the provisions of the applicable
instruments, laws, regulations and policies, governing the Limited Partner to
execute, deliver and perform this Agreement, and the transactions contemplated
by, and the substance of the terms in, this Agreement and the Management
Agreement are consistent with and permissible under Title 24, Article 51 of the
Colorado Revised Statutes ("the Statute") and any other applicable statute or
investment policies binding the Limited Partner;
(c) it shall notify the General Partner before or promptly upon the
occurrence of, or if it knows or has reason to know of the occurrence or
likelihood of the occurrence of, any event which materially affects the accuracy
of or causes a change in the representations, warranties and acknowledgments
hereunder;
(d) the General Partner manages only a portion of the assets of the Limited
Partner and is not rendering advice as to, nor is it responsible in any way
hereunder for, the investment of assets of the Limited Partner other than
pursuant to this Agreement, or for the investment of the Limited Partner's
assets as a whole;
(e) the Limited Partner will provide to the General Partner copies of any
amendments or modifications to any investment policies, laws or regulations
binding on the Limited Partner that relate to its status as a limited partner
hereunder or the management of its assets hereunder and as contemplated under
the Management Agreement as soon as practicable after their promulgation or
issuance;
(f) the Limited Partner is not subject under state law or policy, to the
regulatory rules and regulations of the Employee Retirement Income Security Act
of 1974, as amended;
(g) this Agreement has been duly authorized, executed and delivered by the
Limited Partner and constitutes its legal, valid and binding obligation, except
as the enforceability
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thereof may be limited by the effect of any applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights generally
and by general principles of equity;
(h) any governmental or regulatory approvals or registrations required by
the Limited Partner in connection with the performance by the Limited Partner of
its obligations hereunder have been obtained and are in full force and effect;
and
(i) it understands that the General Partner will rely on the foregoing
representations, warranties and covenants of the Limited Partner.
SECTION 2.08. Representations of the General Partner. The General Partner
affirms the representations and warranties made by MSAM in the Management
Agreement as if stated herein and agrees that the same shall inure to the
benefit of the Limited Partner to the extent applicable and appropriate and
represents, warrants, acknowledges and agrees that: (i) it has compiled with
and, when required will comply with, all material laws, regulations,
registrations, filings, approvals, authorizations, consents or examinations
required by the United States Securities and Exchange Commission or any other
governmental authority having jurisdiction over its activities or the acts
contemplated by this Agreement; (ii) it shall promptly notify the Limited
Partner in the event of any change in control of MSAM; (iii) it is duly
organized and validly existing under the laws of the State of Delaware and has
the power and authority to conduct its business as currently conducted and to
consummate the transactions contemplated by this Agreement; (iv) this Agreement
has been duly authorized, executed and delivered by the General Partner and
constitutes its legal, valid and binding obligation; (v) any governmental or
regulatory approvals or registrations required by the General Partner in
connection with the performance by the General Partner of its obligations
hereunder have been obtained and are in full force and effect; (vi) it
understands that the Limited Partner will rely on the foregoing representations,
warranties and covenants of the General Partner, and (vii) shall promptly notify
the Limited Partner in the event that any of the foregoing acknowledgments,
representations, warranties or agreements shall no longer be true in any
material respect.
ARTICLE III
MANAGEMENT AND OPERATIONS OF THE PARTNERSHIP
SECTION 3.01. Management Generally. The management and control of the
Partnership shall be vested exclusively in the General Partner, and the Limited
Partner shall have no part in the management or control of the Partnership. The
Limited Partner shall have all of the rights provided in this Agreement and the
Delaware Act.
SECTION 3.02. Authority of the General Partner. The General Partner shall
have all rights and powers that may be possessed by a general partner under the
Delaware Act on behalf and in the name of the Partnership to carry out any and
all of the objects and purposes of the
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Partnership in accordance with, and subject to, the limitations contained in
this Agreement and to perform all acts which it, in its discretion, may deem
necessary or desirable in connection therewith. The Limited Partner agrees that
all determinations, decisions and actions made or taken by the General Partner
in accordance with this Agreement shall be conclusive and binding upon the
Partnership, the Limited Partner and their respective successors, assigns and
personal representatives.
SECTION 3.03. Other Authority. (a) The General Partner agrees to use its
best efforts to operate the Partnership in such a way that (i) the Partnership
would not be deemed to be an "investment company" for purposes of the Investment
Company Act (except for Section 12(d)(1) thereunder) and (ii) the Partnership
and the General Partner would be in compliance with any material law,
regulation, order or guideline applicable to the Partnership or the General
Partner.
SECTION 3.04. Use of Agents. The General Partner may, from time to time,
with prior written notice to the Limited Partner, retain any Person (including
any Affiliate of the General Partner) to provide services to the Partnership;
provided that the General Partner reasonably believes that such Person is
qualified to provide such services. Subject to the foregoing, the General
Partner shall be entitled to rely in good faith upon the recommendations,
reports, advice or other services provided by any such agent. Subject to Section
3.05, such agent shall be paid such amounts as are negotiated in an arm's length
transaction with the General Partner.
SECTION 3.05. Expenses. (a) Subject to Section 3.05 (b)the Partnership
shall be responsible for and shall pay all expenses or obligations of the
Partnership or otherwise incurred by the General Partner in connection with this
Agreement, including without limitation:
(1) all expenses of organizing the Partnership, including fees of
special Delaware counsel to the Partnership (but not to exceed $6,000);
(2) all routine administrative expenses of the Partnership including,
without limitation, fees and expenses associated with the custody of the
assets of the Partnership, the conduct of annual audits of the Partnership
by independent public accountants and the preparation and filing of all
necessary regulatory reports and filings;
(3) all expenses incurred in connection with the registration,
qualification or exemption of the Partnership under any applicable federal,
state, local or foreign law;
(4) all expenses incurred in connection with any litigation or other
proceeding involving the Partnership (provided that expenses incurred by
the General Partner in connection with any litigation brought by or on
behalf of the Limited Partner against the General Partner shall not
constitute an expense of the Partnership and the General Partner shall not
be entitled to be indemnified for such expenses pursuant to Article VIII
until such
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litigation is resolved, in which event such expenses shall become expenses
of the Partnership and the General Partner shall be indemnified as (but
only to the extent) provided in Article VIII);
(5) all expenses for indemnity or contribution payable by the
Partnership to any Person (except as otherwise provided in clause (4)
above), whether payable under Article VIII or otherwise;
(6) all expenses incurred in connection with the preparation of
amendments to this Agreement;
(7) all expenses incurred in connection with obtaining legal, tax and
accounting advice and the advice of other consultants and experts, on
behalf of the Partnership, and all expenses incurred by the Tax Matters
Partner (as defined in Section 3.08(b)) in its capacity as such;
(8) any taxes imposed on the Partnership;
(9) all expenses incurred in connection with the dissolution and
liquidation of the Partnership;
(10) all fees and expenses payable pursuant to the Management
Agreement including, without limitation, amounts payable to the General
Partner or Affiliates of the General Partner in respect of fees, expenses
and indemnities; and
(11) any other expenses called for in the Management Agreement.
(b) Notwithstanding Section 3.05(a), Partnership expenses shall not
include:
(1) compensation of officers and employees of the General Partner and
related overhead expenses or travel and other out-of-pocket expenses of
officers and employees of the General Partner, which amounts shall be borne
by the General Partner; and
(2) reasonable fees of special Delaware Counsel to the Partnership in
connection with routine matters with respect to the Partnership and the
reasonable fees and expenses associated with the conduct of special audits
of the Partnership by independent public accountants as requested by the
Limited Partner pursuant to Section 7.01(a)(ii), which expenses shall be
borne by the Limited Partner.
(c) Each Partner shall pay to the Partnership its portion of any
Partnership expense based upon its Commitment Percentage. The General Partner
will xxxx the Partners quarterly in arrears, identifying the nature of the
expense and the amount thereof. A Partner's payment of expenses shall be made in
federal or other immediately available funds promptly upon receipt of such xxxx
from the General Partner.
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(d) The payments of expenses or obligations of the Partnership by the
Limited Partner shall not result in the Limited Partner being deemed to
participate in the control of the business of the Partnership.
(e) The Limited Partner's aggregate liability under this Agreement shall
not exceed the lesser of (i) the amount of the Limited Partner's Initial Capital
Commitment or (ii) the amount of the Limited Partner's Initial Capital
Commitment as adjusted by all realized and unrealized gains and loses of the
Portfolio (as defined in the Management Agreement), plus, to the extent required
to meet the Limited Partner's obligation to pay fees and expenses under
paragraph (b)(2) above, the amount of such fees and expenses.
(f) Notwithstanding anything else contained herein, in the event the
Partnership is obligated to indemnify the General Partner pursuant to Article
VIII hereof or the Partnership is obligated to pay any Indemnifiable Claims (as
defined in the Management Agreement) pursuant to Section 11 of the Management
Agreement and, in either case, the Limited Partner has determined not to direct
the General Partner to cause the sale of assets as provided in Section 3.10(d)
or, following any such sale, there are insufficient cash proceeds to pay such
obligations, then the General Partner may require the Limited Partner to
contribute to the Partnership, at any time or from time to time, whether before
or after dissolution of the Partnership, in satisfaction of such obligations of
the Partnership an amount that is sufficient (when added to any sale proceeds)
to pay the Limited Partner's proportionate share of such obligations (such
proportionate share being an amount equal to the product of (i) the Limited
Partner's Commitment Percentage and (ii) the amount of such obligations);
provided, however, that in no event shall any amount payable pursuant to this
paragraph (f) cause the maximum aggregate liability of the Limited Partner to
exceed the aggregate liability of the Limited Partner determined in accordance
with paragraph (e) above. At the same time as such contribution, the General
Partner shall contribute an amount equal to the product of (i) the General
Partner's Commitment Percentage and (ii) the amount of such obligations.
SECTION 3.06. Other Activities. The General Partner and its officers or
employees shall be required to devote such time to the affairs of the
Partnership as may be necessary to manage and operate the Partnership, and each
such Person, to the extent not otherwise directed by the General Partner, shall
be free to serve any other Person or enterprise in any capacity that it may deem
appropriate in its discretion.
SECTION 3.07. Books and Records; Accounting Method; Valuation. The General
Partner shall keep or cause to be kept at the address of the General Partner (or
at such other place as the General Partner shall advise the other Partners in
writing) full and accurate books and records of the Partnership. Such records
shall be maintained for a period of six (6) years from the date of the
termination of this Agreement, or from the final resolution of any dispute which
may arise between the parties to this Agreement, whichever is longer. These
records shall be subject at the office of the General Partner during normal
working business hours to inspection, review, or audit by the Limited Partner,
or the designees of the Limited Partner.
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These records shall be subject only to such confidentiality requirements as to
the Limited Partner, as are imposed by law upon the General Partner.
SECTION 3.08. Partnership Tax Returns. (a) The General Partner shall cause
to be prepared and timely filed all tax returns required to be filed for the
Partnership. The General Partner may, in its discretion, make, or refrain from
making, any federal, state or local income or other tax elections for the
Partnership that it deems necessary or advisable, including an election pursuant
to Code Section 754.
(b) The General Partner is hereby designated as the Partnership's "Tax
Matters Partner" under Code Section 6231(a)(7) and shall have all of the powers
and responsibilities of such position as provided in the Code. The General
Partner is specifically directed and authorized to take whatever steps the
General Partner, in its discretion, deems necessary or desirable to perfect such
designation, including filing any forms or documents with the Internal Revenue
Service and taking such other action as may from time to time be required under
the Regulations. The Limited Partner shall have the right to participate in any
administrative proceedings relating to the determination of Partnership items at
the Partnership level in which event the Limited Partner shall be responsible
for any expenses incurred by the Limited Partner in connection with such
participation. The expenses in connection with any resulting audits or
adjustments of a Limited Partner's tax return resulting from such participation
shall be borne solely by the Limited Partner.
SECTION 3.09. Reliance by Third Parties. Persons dealing with the
Partnership are entitled to rely conclusively upon the power and authority of
the General Partner herein set forth.
SECTION 3.10 Certain Rights of Limited Partner. (a) At the direction of the
Limited Partner, the General Partner shall terminate the Management Agreement in
accordance with the terms thereof.
(b) Without the prior written consent of the Limited Partner, the General
Partner shall not (i) agree to any amendment, modification or waiver of or
departure from any of the terms of the Management Agreement or (ii) give its
consent to any matter to which the consent of the Partnership is required under
the Management Agreement, including the decision to invest in Other Securities
under Section 6(e) of the Management Agreement.
(c) The General Partner shall within one Business Day of receipt provide to
the Limited Partner copies of all notices, reports and written communications
provided to the Partnership pursuant to the Management Agreement.
(d) At the direction of the Limited Partner, the General Partner shall (i)
instruct MSAM to sell all or any part of the assets held pursuant to the
Management Agreement to satisfy an Indemnifiable Claim (as defined in the
Management Agreement) or (ii) take or refrain from taking any action with
respect to the Management Agreement, including, without limitation,
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terminating the authorization provided in Section 5(e) of the Management
Agreement, accepting or rejecting an offer with respect to Other Securities as
provided in Section 6(e) of the Management Agreement, or requesting an outside
audit as provided in Section 16(g) of the Management Agreement.
ARTICLE IV
INVESTMENTS AND INVESTMENT OPPORTUNITIES
SECTION 4.01. Investments Generally. The assets of the Partnership shall,
to the extent not required for the payment of Partnership expenses (as
determined by the General Partner in its discretion), be invested in the Managed
Account.
ARTICLE V
CAPITAL CONTRIBUTIONS
SECTION 5.01. Capital Contributions. The General Partner and the Limited
Partner hereby agree to make Capital Contributions to the Partnership from time
to time, promptly upon receipt of an Investment Notice or a Funding Notice
furnished by MSAM pursuant to Section 6 of the Management Agreement; provided
that neither Partner shall be required to make any Capital Contribution to the
Partnership with respect to any potential investment (other than an investment
in Publicly Traded Securities (as defined in the Management Agreement)) for the
Managed Account if, within two Business Days of receipt by the Limited Partner
of an Investment Notice or a Funding Notice the Limited Partner notifies the
General Partner that such investment would result in a violation of law,
regulation or policy applicable to the Limited Partner (including any state
legal investment statute or regulation); and further provided, that each Partner
shall be required to respond to such notices within the required time set forth
in the Management Agreement. Each Partner's Capital Contribution in response to
any Funding Notice shall be equal to the product of (a) such Partner's
Commitment Percentage and (b) the amount specified in such Funding Notice.
ARTICLE VI
DISTRIBUTIONS, CAPITAL ACCOUNTS AND ALLOCATIONS
SECTION 6.01. Capital Accounts; Adjustments to Capital Accounts. (a) There
shall be established for each Partner, on the books and records of the
Partnership, an account (a "Capital Account"), which shall initially be zero and
which shall be adjusted as set forth in this Section 6.01.
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(b) The Capital Accounts of the Partners shall be adjusted as follows:
(i) Contributions. The amount of cash (or, in the case of the common stock
of Grove Real Estate Asset Trust, the amount determined pursuant to Section
16(e) of the Management Agreement) contributed to the capital of the Partnership
by any Partner shall be credited to the Capital Account of such Partner.
(ii) Distributions. The amount of cash (or the Value of other property, as
determined in accordance with Section 16(e) of the Management Agreement)
distributed by the Partnership to any Partner shall be debited against the
Capital Account of such Partner; and in the case of distributions of property,
appropriate adjustments shall be made to the Capital Accounts of all Partners to
reflect the allocations that would have been made if such property had been sold
for its Value (as described above) instead of being distributed.
(iii) Other. Each item of income, expense, deduction, credit, gain or loss
realized by the Partnership shall be credited to or debited against the Capital
Account of each Partner, pro rata in accordance with such Partner's Commitment
Percentage.
(c) It is intended that the Capital Accounts will generally be maintained
in accordance with Section 704 of the Code and the Regulations thereunder, and
that the provisions hereof relating to the Capital Accounts be interpreted in a
manner consistent therewith.
SECTION 6.02. Distributions. Except with respect to a distribution in
connection with the dissolution of the Partnership in accordance with Section
9.04, the Partnership shall make distributions to the Partners only upon receipt
of a distribution or other payment from the Managed Account. Any distribution or
other payment received from the Managed Account shall be distributed to the
Partners hereunder in cash or other property in kind in the same manner that
such distribution was made to the Partnership from the Managed Account. Amounts
to be distributed hereunder to the Partners shall be made in accordance with
each Partner's Commitment Percentage.
SECTION 6.03. Delaware Law. Notwithstanding any other provision of this
Agreement, the Partnership, and the General Partner on behalf of the
Partnership, shall not be required to make a distribution to any Partner on
account of its interest in the Partnership, if such distribution would violate
the Delaware Act or other applicable law.
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ARTICLE VII
REPORTS TO LIMITED PARTNERS
SECTION 7.01. Reports. (a) The books of account and records of the
Partnership shall be audited (i) as of the end of each Fiscal Year and (ii) at
such other times as the Limited Partner shall request, by the Partnership's
independent public accountants. All reports provided to the Limited Partner
pursuant to this Section 7.01 shall be prepared on the same basis as that
followed by the Partnership for purposes of filing the Partnership's federal
income tax returns.
The Partnership's independent public accountants shall initially be Ernst &
Young, LLP. The Partnership's independent public accountants shall thereafter be
a nationally recognized independent certified public accounting firm selected by
the General Partner.
(b) Within 90 days after the end of each fiscal quarter, the General
Partner shall prepare and mail to the Limited Partner an unaudited report
setting forth as of the end of such fiscal quarter:
(1) unless such quarter is the last fiscal quarter, a balance sheet of
the Partnership;
(2) unless such quarter is the last fiscal quarter, an income statement
of the Partnership for such fiscal quarter; and
(3) a status report of the Partnership's activities during such fiscal
quarter.
(c) Within 90 days after the end of each Fiscal Year, the General Partner
shall prepare (or cause to be prepared) and mail to the Limited Partner, an
audited report setting forth as of the end of such Fiscal Year:
(1) a balance sheet of the Partnership;
(2) an income statement of the Partnership for such Fiscal Year; and
(3) a statement of each Partner's Capital Account.
(d) After the end of each Fiscal Year, the General Partner shall cause the
independent certified public accountants to prepare and transmit, as promptly as
possible, and in any event within 90 days of the close of the Fiscal Year, a
federal income tax form K-1 for each Partner, a copy of the Partnership's return
filed for federal income tax purposes and a report setting forth in sufficient
detail such transactions effected by the Partnership during such Fiscal Year as
shall enable each Partner to prepare its federal income tax return, if any.
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ARTICLE VIII
EXCULPATION AND INDEMNIFICATION
SECTION 8.01. Exculpation and Indemnification. (a) The General Partner
shall not be liable to the Partnership or to the Limited Partner for any losses,
claims, damages or liabilities arising from any act or omission performed or
omitted by it arising out of or in connection with this Agreement or the
Partnership's business or affairs, except for any such loss, claim, damage or
liability primarily attributable to the General Partner's breach of fiduciary
duty, negligence or willful misconduct.
(b) The Partnership shall, to the fullest extent permitted by applicable
law, indemnify, defend and hold harmless the General Partner against any losses,
claims, damages or liabilities to which the General Partner may become subject
in connection with any matter arising out of or in connection with this
Agreement or the Partnership's business or affairs, except for any such loss,
claim, damage or liability (i) primarily attributable to the General Partner's
breach of fiduciary duty, negligence or willful misconduct or (ii) resulting
from a claim made by the Limited Partner for which the General Partner is found
liable. If the General Partner becomes involved in any capacity in any action,
proceeding or investigation in connection with any matter arising out of or in
connection with this Agreement or the Partnership's business or affairs, the
Partnership shall, subject to Section 3.05(a)(4), reimburse the General Partner
for its legal and other expenses (including the cost of any investigation and
preparation) as they are incurred in connection therewith, provided that the
General Partner shall promptly repay to the Partnership the amount of any such
reimbursed expenses paid to it if it shall ultimately be determined that the
General Partner was not entitled to be indemnified by the Partnership in
connection with such action, proceeding or investigation. If for any reason
(other than the breach of fiduciary duty, negligence or willful misconduct of
the General Partner) the foregoing indemnification is unavailable to the General
Partner, or insufficient to hold it harmless, then the Partnership shall
contribute to the amount paid or payable by the General Partner as a result of
such loss, claim, damage, liability or expense in such proportion as is
appropriate to reflect the relative benefits received by the Partnership on the
one hand and the General Partner on the other hand or, if such allocation is not
permitted by applicable law, to reflect not only the relative benefits referred
to above but also any other relevant equitable considerations.
(c) Each Partner (the "Reimbursing Partner") covenants for itself and its
successors, assigns, heirs and personal representatives that such Person will,
at any time prior to or after dissolution of the Partnership on demand, pay to
the Partnership or the General Partner any amount which the Partnership or the
General Partner, as the case may be, pays in respect of taxes (including
withholding taxes) imposed upon income of or distributions to the Reimbursing
Partner; provided that a Partner shall not be obligated to pay any amounts in
respect of taxes which arise under this paragraph solely as the result of the
breach of fiduciary duty, negligence or willful misconduct of the General
Partner.
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(d) Subject to Section 3.05(e), the obligations of the Partnership under
Section 8.01(b) or any Partner under Section 8.01(c) shall inure to the benefit
of the controlling persons of the General Partner and the directors, officers,
employees and agents of the General Partner and its controlling persons and any
successors, assigns, heirs and personal representatives of such Persons.
ARTICLE IX
DURATION AND DISSOLUTION OF THE PARTNERSHIP
SECTION 9.01. Duration. Subject to Section 9.02, the term of the
Partnership shall continue until March 31, 2003 (the "Termination Date");
provided that with the agreement of the General Partner and the Limited Partner
the term of the Partnership may be extended to such later date as agreed upon by
the General Partner and the Limited Partner subject to Section 9.02.
SECTION 9.02 Dissolution. Subject to the Delaware Act and Article X, the
Partnership shall be dissolved and its affairs shall be wound up upon the
earliest to occur of:
(a) the expiration of the term of the Partnership provided in Section 9.01;
(b) the election of the Limited Partner to dissolve the Partnership;
(c) a decision made by the General Partner after receiving the written
consent of the Limited Partner, with such consent not to be unreasonably
withheld, to dissolve the Partnership because the General Partner has determined
that changes in any applicable law or regulation would have a material adverse
effect on the continuation of the Partnership;
(d) an event of withdrawal of the General Partner (within the meaning of
the Delaware Act) unless within 90 days after the event of withdrawal, the
Limited Partner determines to continue the business of the Partnership and
agrees in writing to the appointment, effective as of the date of the event of
withdrawal, of a new general partner; and
(e) conviction of the Limited Partner in, or subjection of the Limited
Partner to, criminal proceedings or investigations, or the subjection of the
Limited Partner to judgments, decrees or final orders in a civil proceeding of a
judicial or administrative body which, in the reasonable judgment of the General
Partner, make it impractical for the General Partner to continue its duties
under this Agreement.
SECTION 9.03. Winding Up of Partnership. Upon dissolution, the
Partnership's business shall be wound up in an orderly manner. The General
Partner shall be the liquidator to wind up the affairs of the Partnership
pursuant to this Agreement. If no general partner remains, the Limited Partner
may approve one or more liquidators to act as the liquidator in
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carrying out such liquidation.
SECTION 9.04. Distribution Upon Dissolution of the Partnership. (a) Subject
to the Delaware Act, after all liabilities, contingent or otherwise, of the
Partnership (including any liabilities to Partners) have been satisfied or duly
provided for (as reasonably determined by the liquidator in its discretion), the
remaining assets of the Partnership shall be distributed to the Partners in
proportion to their positive Capital Accounts (after giving effect to
adjustments attributable to all Partnership transactions prior to any such
distribution) up to the amount thereof provided, that the liquidator shall, if
requested by any Partner, use its reasonable best efforts to sell all or any
portion of such assets to which such Partner is entitled and distribute the net
proceeds thereof to such Partner; and
(b) No Partner shall have priority over any other Partner as to the return
of its Capital Contributions.
ARTICLE X
TRANSFERABILITY OF GENERAL PARTNER'S INTEREST
SECTION 10.01. Transferability of General Partner's Interest. (a) Except as
otherwise provided herein, the General Partner may not Transfer all or any
portion of its interest in the Partnership without the prior approval of the
Limited Partner.
(b) Notwithstanding anything else contained herein, the General Partner
may, at any time or from time to time without the approval of the Limited
Partner, Transfer all or any portion of its interest in the Partnership
(including some or all of its rights or obligations hereunder) to one or more
Affiliates of Xxxxxx Xxxxxxx (provided that there shall at all times be a
general partner having a net worth (determined in accordance with generally
accepted accounting principles) at least equivalent to that of the General
Partner).
(c) Any Person to whom the General Partner Transfers all or any portion of
its Interest shall be admitted to the Partnership as a general partner upon
execution of a counterpart hereof. If the General Partner transfers all of its
Interests and the transferee is entitled to become a substitute general partner
in accordance with this Section 10.01(c), such transferee shall be admitted to
the Partnership as a general partner immediately prior to the Transfer, and,
immediately following such admission, the transferring General Partner shall
cease to be a General Partner. Notwithstanding Section 9.02(d), the substitute
general partner shall continue the business of the Partnership without
dissolution.
SECTION 10.02. Removal of the General Partner; Resignation by the General
Partner. (a) Upon 30 calendar days' prior notice, the Limited Partner shall have
the right to remove the General Partner at any time for any reason. If the
Limited Partner elects to exercise its right pursuant to this Section 10.02(a),
the Limited Partner shall deliver a notice to such effect to the General Partner
and specify the date upon which such removal shall become effective. In the
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event that the Limited Partner designates a substitute general partner in the
notice removing the General Partner such substitute general partner shall be
admitted as a general partner of the Partnership immediately prior to the
removal of the General Partner, and (i) notwithstanding Section 9.02(d), the
substitute general partner shall continue the business of the Partnership
without dissolution, and (ii) the General Partner shall do all things necessary
to effectively transfer the management and to convey all assets of the
Partnership to such substitute general partner for and on behalf of the
Partnership on the date of its removal.
(b) The General Partner shall have the right to resign and withdraw from
the Partnership at any time with the consent of the Limited Partner. If the
General Partner desires to exercise its rights pursuant to this Section
10.02(b), the General Partner shall deliver a notice to such effect to the
Limited Partner and shall specify the date upon which such resignation and
withdrawal shall become effective, subject to the consent of the Limited Partner
(which date, in any event, shall not be less than 90 days after the date of such
notice). Should the Limited Partner provide such consent, the Limited Partner
may designate a substitute general partner to continue the business of the
Partnership without dissolution in accordance with the third sentence of Section
10.02(a).
ARTICLE XI
TRANSFERABILITY OF LIMITED PARTNER'S INTEREST
SECTION 11.01. No Transfer of Limited Partner's Interest. The Limited
Partner shall not be permitted (i) to withdraw from the Partnership prior to the
dissolution and winding up of the Partnership or (ii) to Transfer its limited
partner interest in whole or in part to any Person; provided that,
notwithstanding anything else contained in this Article or elsewhere in this
Agreement, the Limited Partner may Transfer its limited partner interest without
approval by the General Partner to any successor authorized or directed by the
Colorado State Legislature to perform the Limited Partner's investment duties,
in whole or in part, with respect to such state's retirement funds, or
authorized or directed by the state's governor by executive order if issued
under the governor's scope of authority to do so. Such transferee of all or part
of the Limited Partner's limited partner interest shall be admitted to the
Partnership as a limited partner upon execution of a counterpart hereof. If the
Limited Partner Transfers all of its limited partner interest in accordance with
this Section 11.01 and the transferee is entitled to be admitted to the
Partnership as a limited partner in accordance with this Section 11.01, such
transferee shall be admitted to the Partnership as a limited partner immediately
prior to the Transfer, and, immediately following such admission, the
transferring Limited Partner shall cease to be a limited partner of the
Partnership. The Limited Partner shall provide at least 10 days written notice
to the General Partner of its intention to make such a Transfer.
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ARTICLE XII
MISCELLANEOUS
SECTION 12.01. Amendment to the Agreement. (a) This Agreement may be
amended only with the written approval of the General Partner and the Limited
Partner.
SECTION 12.02. Investment Representation. Each Partner, by executing this
Agreement, represents and warrants that its Interest has been acquired by it for
its own account, or for the account of a commingled pension trust with respect
to whom it has full investment discretion, for investment and not with a view to
resale or distribution thereof and that it is fully aware that the General
Partner and the Partnership, in agreeing to admit it as a Partner, are relying
upon the truth and accuracy of this representation and warranty.
SECTION 12.03. Successors; Counterparts. This Agreement (i) shall be
binding as to the executors, administrators, estates, heirs and legal successors
of the Partners and (ii) may be executed in several counterparts with the same
effect as if the parties executing the several counterparts had all executed one
counterpart.
SECTION 12.04. Governing Law; Severability. This Agreement shall be
governed by and construed in accordance with the laws of the State of Delaware
without giving effect to the principles of conflict of laws thereof. In
particular, it shall be construed to the maximum extent possible to comply with
all of the terms and conditions of the Delaware Act. If, nevertheless, it shall
be determined by a court of competent jurisdiction that any provision or wording
of this Agreement shall be invalid or unenforceable under said Act or other
applicable law, such invalidity or unenforceability shall not invalidate the
entire Agreement. In that case, this Agreement shall be construed so as to limit
any term or provision so as to make it enforceable or valid within the
requirements of applicable law, and, in the event such term or provision cannot
be so limited, this Agreement shall be construed to omit such invalid or
unenforceable provisions.
SECTION 12.05. Filings. Following the execution and delivery of this
Agreement, the General Partner shall promptly prepare any documents required to
be filed and recorded under the Delaware Act, and the General Partner shall
promptly cause each such document to be filed and recorded in accordance with
said Act and, to the extent required by local law, to be filed and recorded or
notice thereof to be published in the appropriate place in each state in which
the Partnership may hereafter establish a place of business. The General Partner
shall also promptly cause to be filed, recorded and published such statements of
fictitious business name and other notices, certificates, statements or other
instruments required by any provision of any applicable law of the United States
or any state or other jurisdiction which governs the conduct of its business
from time to time.
SECTION 12.06. Power of Attorney. The Limited Partner does hereby
constitute and appoint the General Partner as its true and lawful representative
and attorney-in-fact, in its
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name, place and stead to make, execute, sign, deliver and file (a) a Certificate
of Limited Partnership of the Partnership, any amendment thereof required
because of an amendment to this Agreement or in order to effectuate any change
in the membership of the Partnership, (b) any amendments to this Agreement
pursuant to Section 12.01 and (c) all such other instruments, documents and
certificates which may from time to time be required by the laws of the United
States of America, the State of Delaware or any other state, or any political
subdivision or agency thereof, or any foreign country, to effectuate, implement
and continue the valid and subsisting existence of the Partnership or to
dissolve the Partnership in accordance with this Agreement.
The power of attorney granted hereby is coupled with an interest and shall
(i) survive and not be affected by the subsequent death, incapacity, disability,
dissolution, termination or bankruptcy of the Limited Partner and (ii) extend to
such Limited Partner's successors, assigns and legal representatives.
SECTION 12.07. Headings. Section and other headings contained in this
Agreement are for reference purposes only and are not intended to describe,
interpret, define or limit the scope or intent of this Agreement or any
provision hereof.
SECTION 12.08. Further Assurances. The Limited Partner, upon the request of
the General Partner, agrees to perform all further acts and execute, acknowledge
and deliver any documents that may be reasonably necessary to carry out the
provisions of this Agreement.
SECTION 12.09. Goodwill. No value shall be placed on the name or goodwill
of the Partnership.
SECTION 12.10. Notices. All notices and other written communications
specified herein shall be in writing delivered personally, telecopied (which is
confirmed) or sent by overnight courier (providing evidence of delivery) to the
party at the address specified below or at such other address as the party may
designate in writing to the other party.
If to the General Partner: MS Real Estate Special Situations GP Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
Fax No.:000-000-0000
If to the Limited Partner: Public Employee's Retirement Association of Colorado
0000 Xxxxx Xxxxxx
Xxxxxx, XX 00000
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Attention: Director of Real Estate
Fax No.: 000-000-0000
with a copy to: General Counsel
Fax No.: 000-000-0000
Notices and other written communications given by delivery or mail shall be
effective upon actual receipt. Notices and other written communications given by
telecopier shall be effective upon actual receipt if received during the
recipient's normal business hours, or at the beginning of the recipient's next
business day after receipt if not received during the recipient's normal
business hours. All notices and other written communications by telecopier shall
be confirmed promptly after transmission in writing by mail or personal
delivery. Either party may change any address to which notices and other written
communications are to be given to it by giving notice as provided above of such
change of address.
SECTION 12.11. Authorized Persons. The Limited Partner shall provide the
General Partner with a certificate signed by its Deputy Executive Director or
his designee setting forth the names and specimen signatures of all individuals
authorized to act on behalf of the Limited Partner hereunder ("Authorized
Persons") and shall deliver a new certificate containing any change to such
information promptly after any change. Solely with respect to the authority of
any Authorized Person to act on behalf of the Limited Partner, the General
Partner shall not be liable and shall be fully protected in relying upon any
written notice, instructions, direction or other communication that the General
Partner reasonably believes (based on the most recent officer's certificate or
any part of any previous certificate that has not been superseded by a
subsequent certificate of the Limited Partner that has been received by the
General partner) to have been given by an Authorized Person. The General Partner
shall forward from time to time to the Limited Partner a list of names and
specimen signatures of persons authorized to act hereunder and shall provide the
Limited Partner notice of any change in such names or signatures promptly after
such change. Solely with regard to the authority of any such person to act on
behalf of the General Partner, the Limited Partner shall be fully protected in
relying on any written notice, instructions, direction or other communication
that the Limited Partner reasonably believes (based on the most recent list or
any part of a previous list that has not been superseded by a subsequent list,
of names and specimen signatures that has been received from the General Partner
by the Limited Partner) to have been given by such person.
SECTION 12.12. Survival. The provisions of Section 3.05 and 8.01 shall
survive the termination of this Agreement.
SECTION 12.13. Miscellaneous. Each party acknowledges and agrees that the
other party has participated in drafting this Agreement and that this Agreement
shall not be interpreted in favor of one party against the other, but shall be
interpreted solely by its terms.
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IN WITNESS WHEREOF, the undersigned have hereto set their hands as of the
day and year first above written.
MS REAL ESTATE SPECIAL SITUATIONS
GP Inc., as General Partner
By /s/ Xxxxxxx X. Xxxxx
-----------------------------------------
Name:
Title:
Initial Capital Commitment PUBLIC EMPLOYEE'S RETIREMENT
ASSOCIATION OF COLORADO, as
$ 100,000,000.00 Limited Partner
-------------------------------
By /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Deputy Executive Director
By /s/ Xxxxxx X. Xxx
-----------------------------------------
Xxxxxx X. Xxx, as initial Limited Partner
Appendix B and Exhibit A to the Amended and Restated Agreement of Limited
Partnership of the Xxxxxx Xxxxxxx Real Estate Special Situations Fund II, L.P.
are not included in this current statement on Amendment No. 1 to Schedule 13D.
The Company will provide a copy of this appendix and exhibit upon request of the
Securities and Exchange Commission.
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APPENDIX A
DEFINITIONS
"Affiliate" of any Person means any Person that, directly or indirectly
through one or more intermediaries, controls, is controlled by or is under
common control with such Person. The term "control" means the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of a Person, whether through the ownership of voting
securities, by contract or otherwise.
"Agreement" means this Amended and Restated Agreement of Limited
Partnership, as amended from time to time.
"Business Day" means any day except a Saturday, Sunday or other day on
which commercial banks in Denver, Colorado or New York City are authorized by
law to be closed.
"Capital Account" has the meaning set forth in Section 6.01(a).
"Capital Commitment" means, with respect to the Limited Partner at any
time, the amount of its Initial Capital Commitment plus the amount of its
capital contributions made in respect of the Other Securities (as defined in the
Management Agreement) pursuant to Section 6(e) of the Management Agreement. The
Capital Commitment of the General Partner at any time shall be equal to 1/99 of
the Limited Partner's Initial Capital Commitment.
"Capital Contribution" means, with respect to any Partner, a contribution
by such Partner pursuant to Article V.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time. Any and all references to specific provisions of the Code shall be deemed
to refer to any corresponding provisions of succeeding law.
"Commitment Percentage" of any Partner at any time means the percentage
derived by (i) dividing such Partner's Capital Commitment at such time by the
aggregate Capital Commitments of all Partners (except as otherwise provided
herein) at such time and (ii) multiplying such quotient by 100.
"Delaware Act" means the Delaware Revised Uniform Limited Partnership Act,
6 Del. Code Section 17-101 et seq., as amended from time to time.
"Fiscal Year" has the meaning set forth in Section 2.05.
"Funding Notice" has the meaning set forth in Section 6(b) of the
Management
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Agreement.
"General Partner" means, at any time, MS Real Estate Special Situations GP
Inc., a Delaware corporation wholly-owned by Xxxxxx Xxxxxxx or one or more of
its Affiliates, or any other Person who, at such time, serves as the general
partner of the Partnership.
"Initial Capital Commitment" means the amount set forth opposite the name
of the Limited Partner on the signature page of this Agreement.
"Interest", with respect to any Partner, means the interest of such Partner
in the Partnership at any particular time, including the rights and obligations
of such Partner as provided in this Agreement and the Delaware Act.
"Investment" has the meaning set forth in Exhibit A to the Management
Agreement.
"Investment Company Act" means the Investment Company Act of 1940, as
amended from time to time.
"Investment Notice" has the meaning set forth in Section 6(a) of the
Management Agreement.
"Limited Partner" means the Public Employees' Retirement Association of
Colorado and any other Person admitted to the Partnership as a limited partner
in accordance with Section 11.01.
"Managed Account" has the meaning set forth in Section 2.03.
"Management Agreement" has the meaning set forth in Section 2.03.
"Xxxxxx Xxxxxxx" means Xxxxxx Xxxxxxx Group Inc., a Delaware corporation.
"MSAM" has the meaning set forth in Section 2.03.
"Partners" means the General Partner and the Limited Partner.
"Partnership" means The Xxxxxx Xxxxxxx Real Estate Special Situations Fund
I, L.P., as such partnership may from time to time be constituted.
"Person" means any individual, partnership, corporation, limited liability
company, trust or other entity.
"Portfolio" has the meaning set forth in the Introductory paragraph of the
Management Agreement.
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"Regulations" means the applicable Treasury Regulations under the Code. Any
and all references herein to specific provisions of the Regulations shall be
deemed to refer to any corresponding successor provision.
"Reinvestment Period" has the meaning set forth in Section 5(c) of the
Management Agreement.
"Transfer" means a sale, exchange, transfer, assignment or other
disposition of all or any portion of an Interest, either directly or indirectly,
to another Person. When used as a verb, the term "Transfer" shall have a
correlative meaning.
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