EXHIBIT 2
AGREEMENT OF LIMITED PARTNERSHIP
OF ROME ACQUISITION LIMITED PARTNERSHIP
This Agreement of Limited Partnership of Rome Acquisition Limited
Partnership (the or this "Agreement"), a Delaware limited partnership (the
"Partnership"), is entered into effective as of November 15, 2006 (the
"Effective Date") among WH Rome Partners LLC, a Delaware limited liability
company, as a General Partner ("Macklowe", in its capacity as a General Partner)
and as a Limited Partner ("Macklowe Company", in its capacity as a Limited
Partner), and Meadow Star LLC, a Delaware limited liability company, as a
General Partner ("Icahn", in its capacity as a General Partner) and as a Limited
Partner ("Icahn Company", in its capacity as a Limited Partner). In
consideration of the premises and covenants contained herein, the parties agree
as of the Effective Date as follows:
ARTICLE I
CERTAIN DEFINITIONS
Section 1.1 Certain Terms. The definitions set forth in Exhibit
A attached hereto shall apply to this Agreement.
ARTICLE II
NAME, OFFICE, BUSINESS
Section 2.1 Name. The name of the Partnership is "Rome
Acquisition Partnership", or such other name or variations thereof as may, from
time to time, be selected by the General Partners or as may be necessary to
comply with laws, rules or regulations applicable to the business of the
Partnership.
Section 2.2 Registered Office in the State of Delaware: Agent for
Service. The address of the Partnership's registered office in the State of
Delaware is c/o The Corporation Service Company, Corporation Trust Center, 0000
Xxxxxxxxxxx Xx., Xxxxx 000, Xxxxxxxxxx, Xxxxxx of Xxx Xxxxxx, Xxxxxxxx 00000.
The name of the Partnership's registered agent for service of process in the
State of Delaware at such address is The Corporation Service Company or such
other agent as may be designated from time to time by the General Partners.
Section 2.3 Business of the Partnership. The business of the
Partnership shall be to engage in the acquisition of the Target and after the
Closing Date to manage and/or sell certain properties as determined by the
General Partners, and to do any and all other acts and things that the General
Partners in their sole discretion may mutually decide.
Section 2.4 Location of Principal Place of Business. The location
of the principal place of business of the Partnership is 000 Xxxxxxxx Xxxxxx,
Xxxxx 0000, Xxxxx Xxxxxx, XX 00000, or such other location as may from time to
time be determined by the General Partners.
Section 2.5 Term. The term of the Partnership (the "Term") shall
commence with the filing with the Secretary of State of the State of Delaware of
the Certificate of Limited Partnership of the Partnership on November 15, 2006
and shall continue until December 31, 2011.
ARTICLE III
CAPITAL CONTRIBUTIONS
Section 3.1 Initial Capital Contributions. By no later than
November 27, 2006, the initial aggregate capital contributions of all of the
Partners shall be U.S. $1,200,000,000.00 (the "Initial Capital Commitment"),
subject to the conditions set forth in this Section 3.1. Each Partner hereby
agrees to contribute to the Partnership by no later than November 27, 2006, a
capital contribution (with respect to each Partner an "Initial Capital
Contribution") in cash in the amount set forth next to such Partner's name on
Schedule A hereto; provided, however, that (I) no such capital contributions
shall be required and (II) to the extent that such capital contributions shall
have been made, such capital contributions shall be returned to any Partner upon
its request unless (x) the price to be paid per Target Security pursuant to the
definitive agreement between the Partnership or its wholly-owned subsidiary and
the Target providing for the acquisition of the Target (the "Acquisition
Agreement") does not exceed $49.00 per Target Security and (y) the aggregate
amount of equity required to consummate the acquisition of Target pursuant to
the Acquisition Agreement does not exceed (without taking into account any of
the Shared Expenses) the Initial Capital Commitment. Any breach by a Partner of
this Section 3.1 shall constitute a "Failure to Contribute" hereunder, and any
Partner that so breaches this Agreement shall constitute a "Non-Contributing
Partner." The General Partner that is a member of the General Partner Group that
does not have the Non-Contributing Partner shall be entitled to collect from the
other General Partner that is a member of the General Partner Group that does
have the Non-Contributing Partner, and such General Partner shall pay to the
General Partner that is so entitled to collect or its designee, an amount equal
to $60,000,000 (the "Failure to Contribute Amount"). Notwithstanding anything in
this Agreement to the contrary, the Failure to Contribute Amount shall be the
sole and exclusive remedy against a Non-Contributing Partner with respect to any
Failure to Contribute.
Section 3.2 Additional Capital Contributions. After the Effective
Date, the General Partners may from time to time attempt to agree on additional
capital commitments to the Partnership. If the General Partners agree on the
amount of an additional capital commitment of each General Partner (in each
case, and with respect to each General Partner, an "Additional Capital
Commitment"), they will enter into such commitment by executing a commitment
letter (in each case a "Commitment Letter") and deliver it to the General
Partners and the Partnership, and Icahn and Macklowe will each thereby become
bound to make an additional capital contribution (in each case and with respect
to each General Partner, an "Additional Capital Contribution") to the
Partnership up to the amount of an Additional Capital Commitment agreed upon in
such Commitment Letter at the written request of one General Partner to the
other General Partner (in each case a "Capital Contribution Request Letter"),
which request shall set forth an amount of an Additional Capital Contribution
that each General Partner shall contribute to the Partnership. Also, each of
Icahn and Macklowe shall be entitled, from time to time, to make an Additional
Capital Contribution to the Partnership (the "Contribution Right"), provided the
aggregate of all Additional Capital Contributions contributed by such General
Partner to the Partnership from the date of the last in time Commitment Letter
does not exceed the Additional Capital Commitment of such General Partner set
forth in such Commitment Letter. Each of Icahn and Macklowe may, in its sole and
absolute discretion, choose to make an Additional Capital Contribution hereunder
by causing each of Icahn Company and Macklowe Company, respectively, to make
such Additional Capital Contribution.
Section 3.3 Obligation to Contribute. Each of Icahn and Macklowe
shall cause each of Icahn Company and Macklowe Company, respectively, to make an
Additional Capital Contribution to the Partnership on the date, in the amount
and otherwise in accordance with the terms prescribed by a Capital Contribution
Request Letter, provided that such Additional Capital Contribution does not
cause such General Partner to make an Additional Capital Contribution beyond its
Additional Capital Commitment pursuant to the last in time Commitment Letter.
Section 3.4 No Right or Obligation. Except as otherwise provided
in this Agreement or required by law, no Partner shall be obligated to or have a
right to make an additional Capital Contribution to the Partnership.
Section 3.5 Form of Capital Contribution. Capital Contributions
to the Partnership shall be made in cash only.
Section 3.6 No Interest on Capital Contributions. No Partner
shall be entitled to interest on or with respect to any Capital Contribution or
any amounts to be paid to such Partner pursuant to this Agreement.
Section 3.7 Distribution and Return on Capital Contributions.
Except as otherwise unanimously agreed to by the General Partners, no Partner
shall be entitled to a return of any part of its Capital Contributions or to
receive any distributions from the Partnership.
Section 3.8 Expenses.
(a) Internal Expenses. For avoidance of doubt, each Partner shall
be responsible for its own internal expenses related to or arising out
of its activities outside of the Partnership and shall not have any
right of reimbursement by the Partnership of such expenses.
(b) Shared Expenses. The Partners shall bear, pro rata in
accordance with their respective Capital Accounts , (i) all fees and
expenses of the financial advisors, legal advisor and accounting firm
engaged by either General Partner on behalf of the Partnership in
connection with the preparation and submission of a proposal with
respect to the acquisition of Target, the negotiation and execution of
the Acquisition Agreement and taking the other actions contemplated by
this Agreement with respect to the proposed acquisition of Target and
(ii) other third-party costs incurred by one General Partner on behalf
of the Partnership in connection with the preparation and submission of
a proposal with respect to the acquisition of Target, the negotiation
and execution of the Acquisition Agreement and taking the other actions
contemplated hereunder as unanimously approved by the General Partners,
including any costs associated with structuring any debt financing for
the acquisition of Target; provided that the fees and expenses described
in both clauses (i) and (ii) above are incurred with the unanimous
consent of each General Partner (the "Shared Expenses"); and provided,
further and notwithstanding that Shared Expenses must be approved by the
unanimous consent of each General Partner, that if Icahn (x) has paid to
the Partnership its pro rata share (based on the amount set forth next
to Icahn's name on Schedule A) of any Shared Expenses and (y) requests
that Macklowe pay to the Partnership its pro rata share (based on the
amount set forth next to Macklowe's name on Schedule A) of such Shared
Expenses, then, within three (3) business days of such request, Macklowe
shall pay to the Partnership its pro rata share of such Shared Expenses.
In the event that Macklowe does not make the foregoing payment to the
Partnership within such three (3) business days period, Icahn shall be
entitled to collect from Macklowe, and Macklowe shall pay to Icahn or
its designee, the Failure to Contribute Amount. Notwithstanding anything
in this Agreement to the contrary, the Failure to Contribute Amount
shall be the sole and exclusive remedy against Macklowe with respect to
any failure to pay to the Partnership its pro rata share of any Shared
Expenses in accordance with this Section 3.8(b).
(c) Repayment of Debt. If the General Partners unanimously elect,
or are required by one or more third parties, to repay or repurchase at
the Closing Date (or thereafter in connection with the sale of
properties) any indebtedness of Target or any subsidiary of Target, at
the Closing Date (or thereafter in connection with the sale of
properties), the Partners shall pay in cash such indebtedness plus any
costs, expenses or fees associated with such repayment or repurchase,
including without limitation any prepayment fees or penalties, to be
repaid, pro rata in accordance with their respective Capital Accounts.
For these purposes, "indebtedness" shall be deemed to include the costs
of unwinding any interest rate swaps, caps, treasury locks and other
derivatives and xxxxxx associated with the indebtedness that is being
repaid.
ARTICLE IV
ALLOCATION OF PROFITS AND LOSSES
Section 4.1 Allocation of Profits and Losses.
(a) Allocation of Profits. Profits for each Accounting Period
shall be allocated among the Partners in accordance with the positive balances
of their Capital Accounts as of the beginning of such Accounting Period.
(b) Allocation of Losses. Losses for each Accounting Period shall
be allocated among the Partners in accordance with the positive balances of
their Capital Accounts as of the beginning of the Accounting Period.
(c) Timing of Allocations. Allocations of Profits and Losses as
provided in this Section 4.1 shall be made as of the end of each Accounting
Period.
Section 4.2 Additional Allocation Provisions.
(a) Except as provided below in this Section 4.2, the net profits
and net losses of the Partnership, as determined for Federal income tax
purposes, shall be allocated in the same manner as Profits and Losses are
allocated under Sections 4.1 hereof.
(b) Notwithstanding the foregoing provisions of this Article IV
hereof, the aggregate General Partner's interest in each item of Partnership
income, gain, loss, deduction or credit shall equal at least 1% of each of those
items at all times during the existence of the Partnership. In determining each
General Partner's interest in those items, any Limited Partner's interest owned
by such General Partner shall not be taken into account.
(c) Notwithstanding the provisions of Article IV hereof, items of
Partnership income, gain, loss or deduction, as determined for Federal income
tax purposes, shall be specially allocated to the Partners to eliminate the
difference between the adjusted tax basis and the book value of such Target
Securities, in accordance with the principles of Code ss. 704(c), the Treasury
Regulations there-under, and Treasury Regulations ss. 1.704-1(b)(4)(i);
provided, however, that in the event of a withdrawal of a Partner, the General
Partners other than a withdrawing Partner, acting together by unanimous
agreement, shall have reasonable discretion to specially allocate items of
Partnership income, gain, loss or deduction, as determined for Federal income
tax purposes, first to the withdrawing Partner in order to eliminate any
disparity between such withdrawing Partner's adjusted tax basis in its
Partnership Interest and its Capital Account immediately prior to such
withdrawal.
ARTICLE V
DISTRIBUTION, WITHDRAWAL AND BUY-SELL OFFER
Section 5.1 Distribution of Available Cash and Property. The
General Partners may from time to time, in their sole discretion, acting
together by unanimous agreement, distribute to the General Partners and the
Limited Partners, pro rata in accordance with the relative positive balances of
their Capital Accounts, cash or other property held by the Partnership,
determined by the General Partners, in their sole discretion, acting together by
unanimous agreement, to be available for distribution. Any withholding tax
imposed with respect to a distribution to a Partner shall be deemed to be a
distribution.
Section 5.2 Withdrawal. Except pursuant to Section 5.3 ("Buy-Sell
Offer") or Article VII ("TRANSFERS OF INTERESTS BY PARTNERS"), no Partner shall
have the right to withdraw from the Partnership and no Partner shall withdraw
from the Partnership under any circumstances or make a demand for withdrawal of
any or all of its Capital Contributions.
Section 5.3 Buy-Sell Offer. Any General Partner Group (the
"Initiating Partners") may at any time (i) after the ninetieth (90th) day after
the Closing Date and (ii) after notice to the other General Partner Group that
the General Partners fail to unanimously agree pursuant to Section 6.2 on any
action under this Agreement, deliver to Icahn, with respect to Icahn Group, or
Macklowe, with respect to Macklowe Group (with respect to either Icahn Group or
Macklowe Group, as the case may be, the "Non-Initiating Partners") an offer (the
"Buy-Sell Offer") in writing stating the purchase price on a per unit or
percentage basis at which the Initiating Partners and/or their Affiliate(s)
designated by the Initiating Partners in the Buy-Sell Offer (each an "Initiating
Designee" and collectively "Initiating Designees") are willing to purchase from
the Non-Initiating Partners or sell to the Non-Initiating Partners all (but not
less than all) Interests in the Partnership held in the case of a purchase by
the Non-Initiating Partners, and in the case of a sale by the Initiating
Partners.
Icahn or Macklowe, as the case may be, on behalf of the
Non-Initiating Partners, shall then be obligated to elect to:
(i) sell to the Initiating Partners and/or Initiating
Designees, as the case may be, all (but not less
than all) Interests in the Partnership then owned
by the Non-Initiating Partners at the purchase
price and upon the terms and conditions set forth
in the Buy-Sell Offer; or
(ii) purchase from the Initiating Partners on their own
and/or through their Affiliate(s) designated by the
Non-Initiating Partners and disclosed to the
Initiating Partners in writing (each a
"Non-Initiating Designee" and collectively
"Non-Initiating Designees") all (but not less than
all) Interests in the Partnership at the purchase
price and upon the terms and conditions set forth
in the Buy-Sell Offer.
Icahn or Macklowe, as the case may be, on behalf of the
Non-Initiating Partners, shall give written notice of such election to the
Initiating Partners within thirty (30) days after receipt of the Buy-Sell Offer.
Failure of Icahn or Macklowe, as the case may be, on behalf of the
Non-Initiating Partners, to give the Initiating Partners notice of their
election within said 30-day period shall conclusively be deemed to be an
election under clause (i) above.
The closing of any purchase and sale of Interests in the
Partnership pursuant hereto shall occur no later than ten (10) days following
the delivery of the notice of election set forth above or such earlier date as
shall be specified in writing by the Purchasing Partners, unless an approval for
the consummation of the foregoing transaction is required from any Regulatory
Authority, in which case such closing shall take place no later than 10 days
following such approval. At any closing pursuant to this section, a General
Partner Group which is selling Interests in the Partnership, whether such
General Partner Group shall be of the Initiating Partners or the Non-Initiating
Partners who elect to sell (the "Exiting Partners"), shall sell, transfer and
assign to the other General Partner Group purchasing such Interests and the
Target Securities (the "Purchasing Partners") all right, title and interest in
and to the Exiting Partners' Interests in the Partnership free and clear of all
liens, claims and encumbrances, the Purchasing Partners shall pay for such
interests and Interests in cash or immediately available Federal funds and, at
the request of the Purchasing Partners, the Exiting Partners shall execute all
other documents and take such other actions as may be reasonably necessary or
desirable to effectuate the transfer of the Interests in the Partnership and to
carry out the purposes of this Agreement.
In the event, the Exiting Partners fail to comply with the
closing procedure set forth above, the Purchasing Partners may, in their
discretion, chose to deliver to the Partnership and the Exiting Partners a
Payment Notice (as defined below), and the Partnership and the Exiting Partners
shall abide by the procedure set forth in the Payment Notice.
Section 5.4 Material Breaches of Section 5.3. Any breach by a
Partner of Section 5.3 ("Buy-Sell Offer") shall constitute a "Material Breach"
hereunder, and any Partner that is in "Material Breach" shall constitute a
"Subject Partner." The General Partner, that is a member of the General Partner
Group that does not have the Subject Partner as its member, and/or its
Affiliate(s) designated by such General Partner shall be entitled to purchase
(without any obligation to do so) (the "Purchase Option") all (but not less than
all) of the Interests of the General Partner Group that has the Subject Partner
as its member at price equal to seventy five percent (75%) of the Capital
Account of that General Partner Group on the date of the Material Breach by
tendering to the Partnership and such Subject Partner a payment notice (a
"Payment Notice") at any time after the Material Breach, which Payment Notice
shall set forth the procedure for the payment for the Interest in immediately
available Federal funds, and the Partnership and the Subject Partner shall abide
by such procedure. The Subject Partner shall be deemed to have waived any
defenses it may have to the purchase of its Interest pursuant to the Purchase
Option. Notwithstanding the foregoing, nothing herein shall be construed as a
waiver of any other rights or remedies that the Partnership and/or each of its
Partners may have against the Subject Partner at law or in equity, including
damages for any breach of this Agreement, whether or not the Purchase Option is
exercised.
ARTICLE VI
POWERS RIGHTS AND DUTIES OF THE GENERAL PARTNER
Section 6.1 Authority. Except as otherwise specifically stated
herein, the General Partners, acting together by unanimous agreement, shall have
exclusive and complete authority and discretion to manage the operations and
affairs of the Partnership and to make all decisions regarding the business of
the Partnership.
Section 6.2 Powers and Duties of General Partner. The General
Partners shall be solely responsible for the administration of the Partnership
and any act by the Partnership shall, except as otherwise set forth in ARTICLE
III ("CAPITAL CONTRIBUTIONS") and Section 5.3 ("Buy-Sell Offer") hereof, require
the unanimous approval of the General Partners, including, without limitation,
(i) admission of any other person as a Partner, (ii) any matter relating to any
transaction between the Partnership or any entity controlled by the Partnership
and any General Partner or Limited Partner, (iii) any distributions to the
Partners (iv) determining to require any Capital Contribution from the Partners,
(v) except as set forth in Section 5.3 hereof, the taking of any action by the
Partnership prior to the acquisition of any Target Securities, (vi) a change in
the purpose of the Partnership, (vii) the dissolution of the Partnership, (viii)
the sale or purchase of Target Securities by the Partnership or the voting of
Target Securities by the Partnership but not by any Partner or any of its
Affiliates (other than the Partnership), (ix) appointment of and/or delegation
of authority to one General Partner or any representative of any General Partner
to represent the Partnership and/or each of the General Partners in any specific
affairs, undertakings, matters or projects of the Partnership during a specific
time or period, and in any event, until one General Partner objects to such
appointment or delegation by giving written notice of such objection to the
other General Partner and therefore revokes its consent (x) public disclosure of
the plans, strategies or affairs of the Partnership and (xi) sales of any assets
of the Partnership. Except as otherwise specifically provided herein, the
General Partners, acting by unanimous agreement, shall have (x) all rights and
powers of a general partner under the Uniform Act; (y) all authority, rights and
powers in the management of the Partnership business to do any and all other
acts and things necessary, proper, convenient or advisable to effectuate the
purpose of this Agreement, to carry on the business of the Partnership and/or as
permitted by law and (z) the sole power to approve a transfer, domestication,
continuance, merger, consolidation or conversion of the Partnership. From time
to time, the General Partners may, by unanimous consent, appoint one or more
officers or agents (which may be a General Partner) to act on behalf of the
Partnership with respect to such matters and affairs as shall have been
specified in such appointment. Either General Partner may revoke such
appointment at any time to be effective as set forth in written notice given by
the General Partner desiring to make such revocation to the other General
Partner and such appointee.
Section 6.3 Liability. Except as otherwise specifically provided
in this Agreement, no member of a General Partner Group or/and no Affiliate of a
General Partner shall be personally liable for the return of any portion of the
Capital Contributions of any of the General Partners or of the Limited Partners
or shall be required to pay to the Partnership or any Limited Partner any
deficit in any Partner's Capital Account. Except as otherwise specifically
provided in this Agreement, no General Partner, former, present or future
Partner, member, officer, director, stockholder, employee, agent or Affiliate of
a General Partner shall be liable, responsible or accountable to the Partnership
or any Limited Partner for (a) any act or omission performed or omitted by any
of them, or for any costs, damages or liabilities arising therefrom, or by law,
unless that act or omission was performed or omitted fraudulently or in bad
faith or through negligence or gross negligence or intentional misconduct; or
(b) except as provided in clause (a) of this Section 6.3 with respect to the
Person who performed or omitted such acts, any costs, damages or liabilities due
to the negligence, dishonesty or bad faith of any employee, officer, broker,
consultant or other agent of the Partnership, selected, engaged and retained in
good faith by a General Partner.
Section 6.4 Indemnification. (a) The Partnership shall:
(i) indemnify and hold harmless each member of the General
Partner Group and Affiliates of each General Partner and the
respective personal representatives, heirs, successors in
interest and assignees of any thereof (each, an "Indemnified
Party"), from and against any and all damages incurred or
suffered by any Indemnified Party arising out of or in connection
with the Partnership's business or affairs; provided, however,
that the Partnership shall not indemnify or hold harmless any
Indemnified Party with respect to any act or omission which was
performed or omitted fraudulently or in bad faith by it; and
(ii) advance to any Indemnified Party expenses for which
the Partnership is required to indemnify the Indemnified Party
pursuant to this Section 6.4 subject to the undertaking of the
Indemnified Party to repay such advances if it is ultimately
determined that such Indemnified Party is not entitled to be
indemnified.
(b) Survival. The exculpation provided in Section 6.3 hereof and
the indemnification provided in this Section 6.4 shall survive any termination
of this Agreement. Any Person entitled to exculpation pursuant to Section 6.3
hereof and/or indemnification pursuant to this Section 6.4 shall remain entitled
to such exculpation and/or indemnification to the same extent as prior to any of
the following events with respect to any matter arising or occurring prior to
such event and shall have no liability with respect to any matter arising after
such event: (i) such Person ceases to be a partner, member, officer, director,
stockholder, employee, agent or Affiliate of a General Partner or its
Affiliates; or (ii) a General Partner ceases to be one of the general partners
of the Partnership, unless such Person is a partner, member, officer, director,
stockholder, employee, agent or Affiliate of a permitted hereunder successor to
such General Partner.
(c) Repayment. If it shall ultimately be determined that the
Indemnified Party is not entitled to the indemnification provided by this
Section 6.4, the Indemnified Party shall promptly repay to the Partnership the
amount of any expenses advanced to such Indemnified Party and the amount of all
costs of the Partnership in providing indemnification pursuant to this
Agreement.
Section 6.5 Management of Acquired Assets. To the extent that
customary property management services are required with respect to any property
acquired under the Acquisition Agreement, services may be provided by Icahn,
Macklowe or an outside manager in exchange for payment of customary management
fees in amounts to be agreed to by the General Partners, acting together by
unanimous agreement, provided, however that if Icahn desires to undertake such
customary management services through one of its Affiliates, Icahn shall be
entitled to do so in exchange for payment of customary management fees without
any consent requirement from any other Partners. In the event Icahn undertakes
such management services through one of its Affiliates and Macklowe is not
satisfied, in its sole discretion, with Icahn's Affiliates performance of such
management services, Macklowe shall be entitled to initiate a Buy-Sell Offer
pursuant to the terms of Section 5.3 hereof without regard to clause (ii) of the
first paragraph of Section 5.3, and notwithstanding anything in this Agreement
to the contrary, this shall be the sole and exclusive remedy against Icahn with
respect to any performance or failure to perform such management services.
ARTICLE VII
TRANSFERS OF INTERESTS BY PARTNERS
Section 7.1 General Partner Transfer. Notwithstanding any other
provision of this Agreement but subject to Section 5.3 hereof, a General Partner
may not and may not cause, permit or suffer to occur, any sale, assignment,
pledge or other encumbrance or disposition (collectively "Transfer") of all or a
portion of its General Partnership Interest in the Partnership (including any
direct or indirect beneficial interest therein), directly or indirectly,
including without limitation, as a result of any Transfer of such General
Partner's securities, stock or other ownership interest (including any direct or
indirect beneficial interest therein) or any Transfer by any Person directly or
indirectly controlling such General Partner of its securities, stock or other
ownership interest (including any direct or indirect beneficial interest
therein), to any Person other than: (i) to an Affiliate that agrees to be bound
by this Agreement and the terms hereof pursuant to documents reasonably
acceptable to the other General Partner; or (ii) pursuant to the procedure set
forth in Section 5.3.
Section 7.2 Transfer of Limited Partner's Interest.
(a)Notwithstanding any other provision of this Agreement but subject to Section
5.3 hereof, a Limited Partner may not and may not cause, permit or suffer to
occur, any Transfer of all or a portion of its Limited Partnership Interest in
the Partnership (including any direct or indirect beneficial interest therein),
directly or indirectly, including without limitation, as a result of any
Transfer of such Limited Partner's securities, stock or other ownership interest
(including any direct or indirect beneficial interest therein) or any Transfer
by any Person directly or indirectly controlling such Limited Partner of its
securities, stock or other ownership interest (including any direct or indirect
beneficial interest therein), to any Person (unless to an Affiliate that agrees
to be bound by this Agreement and the terms hereof pursuant to documents
reasonably acceptable to the General Partners) that agrees to be bound by this
Agreement and the terms hereof or the following conditions are met:
(i) the General Partners give their unanimous written
consent to the Transfer (which consent may be withheld in the
sole discretion of each of the General Partners);
(ii) the Regulatory Authority gives its written consent,
if necessary, to the Transfer; and
(iii) an instrument of Transfer, and any other documents
and opinions, in form and substance satisfactory to all of the
General Partners executed by both the transferor and transferee
of the Interest or portion thereof shall be delivered to the
General Partners and the transferee, shall, if so requested,
assume the obligations, if any, of the transferor to the
Partnership allocable to the Interests or portion thereof
transferred.
(b) No transferee of a Limited Partner's Interest shall become a
Substituted Limited Partner unless the transfer shall be made in compliance with
clauses (i) through (iii) of Section 7.2(a) hereof and the transferee (1) if any
of the General Partners requests, executes a subscription agreement containing
representations, warranties and other provisions as such requesting General
Partner reasonably deems to be necessary or appropriate under then existing
applicable law; (3) each of the General Partners shall give its prior written
consent, which consent may be withheld in the sole discretion of any of the
General Partners; and (3) the transferring Limited Partner and the transferee
shall have executed and acknowledged such other instruments as any of the
General Partners may deem reasonably necessary or appropriate.
(c) Each Limited Partner agrees that such Limited Partner will
pay all reasonable costs and expenses, including, without limitation, attorneys
fees and the cost of the preparation, filing and publishing of any amendment to
any certificate of the Partnership, incurred by the Partnership in connection
with a transfer by or to it.
(d) Any Limited Partner which shall transfer all of its Interest
shall cease to be a Limited Partner upon the admission of a Substituted Limited
Partner in its stead. Anything herein to the contrary notwithstanding, until
such time as the transferee of an Interest has been admitted into the
Partnership as a Substituted Limited Partner or each of the General Partners has
determined that the requirements of Sections 7.2(a) hereof for transfer of an
Interest have been satisfied, both the Partnership and the General Partners
shall be entitled to treat the transferor of such Interest as the absolute owner
thereof in all respects.
(e) In the event of the transfer of a Partner's Interest at any
time other than the end of the Partnership's Fiscal Year, the distributive
shares of the various items of Partnership income, gain, loss, deduction and
credit as computed for purposes of Federal income tax shall be allocated between
the transferor and the transferee on such basis as the transferor and the
transferee shall agree; provided, however, that no allocation shall be effective
unless (i) the transferor and transferee shall have given each of the General
Partners written notice prior to the effective date of the transfer, stating
their agreement that the allocation shall be made on such basis; (ii) each of
the General Partners shall have consented, in its sole discretion, to the
allocation, and (iii) the transferor and the transferee shall have agreed to
reimburse the Partnership for any incremental accounting fees, attorneys' fees
and other expenses incurred by the Partnership in making the allocation.
Section 7.3 Transferees Bound by Agreement. Any successor or
transferee of a Partner and any Substituted Limited Partner shall be subject to
and bound by all of the provisions of this Agreement as if originally a party to
this Agreement.
Section 7.4 Improper Transfers are Void. Any purported transfer
of an Interest (or any beneficial interest therein) which is not made in
compliance with this Agreement is hereby declared to be null and void and of no
force and effect whatsoever.
ARTICLE VIII
DISSOLUTION OF THE PARTNERSHIP
Section 8.1 Causes of Dissolution. The Partnership shall be
dissolved upon the earliest of:
(a) The expiration of its Term as provided in this Agreement;
(b) The unanimous determination by all of the General Partners in
their sole discretion to dissolve;
(c) The entry of a decree of judicial dissolution;
(d) The failure by the General Partners to agree on any
additional capital commitments pursuant to Section 3.2 hereof; or
(e) Any act or event specified in the Uniform Act ss. 17-801 or
any successor provision thereto.
Section 8.2 Prohibition of Dissolution. Without unanimous consent
of the General Partners, a Partner shall not (i) act (ii) fail to act or (iii)
cause any action or inaction, if any of the foregoing leads to, results in, or
causes, directly or indirectly, a dissolution of the Partnership.
ARTICLE IX
WINDING UP, TERMINATION AND LIQUIDATION DISTRIBUTIONS
Section 9.1 Winding Up. (a) In the event of the dissolution of
the Partnership for any reason set forth in Section 8.1 hereof, the General
Partners shall wind up the affairs of the Partnership and liquidate the
Partnership Property.
(b) The Partners shall continue to share Profits and Losses
during the period of liquidation in accordance with Article IV hereof. The
General Partners may, in their sole discretion, acting together by unanimous
agreement, determine the time, manner and terms of any sale or sales of the
assets of the Partnership pursuant to the liquidation.
(c) In the event of the dissolution of the Partnership, the
General Partners, acting together by unanimous agreement, shall have the right
to dispose of the goodwill and all of the Partnership's books and papers in any
manner as they may deem advisable, including to an entity that will continue the
Partnership and its business, which may be an Affiliate of any of the General
Partners. If the business of the Partnership is continued, or the goodwill, if
any, sold or otherwise disposed of, any non-continuing Partner shall have no
claim against the assets of the Partnership, or any Partner thereof, or against
the successor or continuing entity, in any other respect, and shall not be
entitled to participate in or derive any benefit from, any use or disposition of
the name, goodwill, books or offices of the Partnership.
Section 9.2 Distributions Upon Liquidation. Subject to the right
of the General Partners to set up cash reserves, as they may deem necessary or
appropriate, acting together by unanimous agreement, the proceeds of the
liquidation of the Partnership Property, after payment or adequate provision for
the payment of all debts and obligations of the Partnership, shall be
distributed pro rata to the Partners in accordance with their respective Capital
Accounts.
Section 9.3 Termination. The Partnership shall terminate when all
Partnership Property shall have been disposed of and distributions made as
provided in Section 9.2 hereof. The General Partners shall then execute and
cause to be filed a Certificate of Cancellation of the Partnership.
ARTICLE X
BOOKS AND RECORDS, REPORTS, FISCAL YEAR
Section 10.1 Books and Records. True and complete books of
account and records are to be kept by the Partnership and shall be available for
inspection by each Partner.
Section 10.2 Reports. As soon as practicable after the end of
each Fiscal Year other than the Fiscal Year in which the Partnership was formed,
the General Partners shall cause the Partnership to send to each Person who was
a Partner at any time during such Fiscal Year, an annual statement indicating
such Partner's share of the Partnership's taxable income or loss, capital gain
or loss, and other items relevant for Federal income tax or other tax purposes.
The General Partners will make annual financial statements for the Partnership,
other than for the Fiscal Year in which the Partnership was formed, available to
Limited Partners upon reasonable request. The General Partners shall cause the
Partnership to furnish each General Partner with separate accounting statements
for the Partnership's brokerage and trading businesses. Each Partner shall
provide the Partnership with copies of any reports, filings or other documents
(collectively the "Regulatory Documents") that such Partner files with, delivers
to or makes otherwise available to (collectively "Files") any Regulatory
Authority, in connection with or in relation to the Interest of such Partner in
the Partnership immediately after such Partner Files the Regulatory Documents,
and the General Partners shall cause the Partnership to furnish each General
Partner with the Regulatory Documents.
Section 10.3 Fiscal Year. The fiscal year of the Partnership (the
"Fiscal Year") shall be from January 1 through December 31 of each year or
portion thereof during which the Partnership is in existence.
ARTICLE XI
AMENDMENT OF PARTNERSHIP AGREEMENT
Section 11.1 Approval of Amendments. Amendments to this Agreement
may be made by the General Partners, acting together by unanimous agreement,
without the consent of any Limited Partner through use of the power of attorney
described in Section 14.1 hereof if those amendments are (i) of a non-material
nature, as determined by the General Partners; (ii) for the purpose of creating
a new class or classes of Limited Partnership Interests, admitting additional
Limited Partners or reflecting the withdrawal of Limited Partners; (iii)
necessary to maintain the Partnership's status as a partnership according to ss.
7701(a)(2) of the Code; (iv) necessary to preserve the validity of any and all
allocations of Partnership income, gain, loss or deduction pursuant to ss.
704(b) of the Code; or (v) contemplated by this Agreement. Amendments to this
Agreement other than those described in the first sentence of this Section 11.1
may be made only if embodied in an instrument signed by all of the General
Partners and a Majority-in-Interest of the Limited Partners, provided, however,
that any amendment to this Agreement pertaining to the rights, preferences,
priorities, powers, limitations and/or restrictions with respect to the Limited
Partners of a particular class or classes of Limited Partnership Interest need
only be signed by all of the General Partners and a Majority-in-Interest of the
Limited Partners of each such class of Limited Partnership Interest. Any
supplemental or amendatory agreement shall be adhered to and have the same
effect from and after its effective date as if the same had originally been
embodied in, and formed a part of, this Agreement. The General Partners shall
cause the Partnership to give written notice to all Partners promptly after any
amendment has become effective. Any amendment to this Agreement must be in
writing.
ARTICLE XII
TAX MATTERS
Section 12.1 Tax Matters Partner. The General Partners will
jointly select, at the expense of the Partnership, an accounting firm to review
a draft of each tax return to be filed by the Partnership, and each Partner
shall also be afforded the opportunity to review and comment on the draft of
such tax return. The Tax Matters Partner shall prepare and file all tax returns
and execute any agreements or other documents relating to tax matters on behalf
of the Partnership, provided, however, that the Tax Matters Partner will not
settle any administrative proceeding before a taxing authority, or commence or
settle a judicial proceeding, without the consent of Macklowe, such consent not
to be unreasonably withheld or delayed. The Tax Matters Partner is authorized to
make an election under Section 754 of the Code upon the request of either
Partner and may make other elections for federal, state, local and foreign tax
purposes as permitted by applicable law; provided, however, that any such other
election shall not be made without the consent of Macklowe, such consent not to
be unreasonably withheld or delayed. Icahn shall be and is specifically
authorized to act as the "Tax Matters Partner."
ARTICLE XIII
STANDSTILL
Section 13.1 Standstill. (a) For avoidance of doubt, prior to the
Execution Date, Partners and their respective Affiliates will be free to
purchase the Target Securities without any restrictions hereunder. During the
Standstill Period, a Partner shall not, other than through its participation in
the Partnership, and shall cause its Affiliates not to, and a former Partner
shall not, and shall cause its Affiliates not to, directly or indirectly:
(i) acquire, announce an intention to acquire, offer or
propose to acquire, solicit an offer to sell or agree to acquire,
by purchase, by gift, by joining or taking an equity interest in
a Person, a syndicate or any group or otherwise (x) any Target
Securities or (y) any assets, businesses or properties of the
Target;
(ii) participate in the formation or encourage the
formation of, or join or in any way participate with, any Person,
syndicate, group or other person or entity that beneficially owns
or seeks to acquire beneficial ownership of Target Securities for
the purpose of beneficially owning or acquiring beneficial
ownership of any Target Securities (other than any group
consisting solely of such Partner and/or its Affiliates);
(iii) solicit, or participate in the solicitation of,
proxies or become a participant in any election contest (the
terms used in this section 13.1(a)(iii) having the respective
meanings given them to Regulation 14A under the 0000 Xxx) with
respect to the Target;
(iv) initiate, propose or otherwise solicit any
stockholders of the Target for the approval of one or more
proposals with respect to the Target or induce any other Person
to initiate any such proposal;
(v) seek the removal of any of the members of the
management or the board of directors of the Target or seek to
have called any meeting of the stockholders of the Target;
(vi) deposit any Target Securities in a voting trust or
subject them to a voting agreement or other agreement or
arrangement with respect to voting (other than pursuant to the
unanimous agreement of all of the General Partners or any
agreement or arrangement solely among such Partner and/or its
Affiliates); or
(vii) otherwise act, alone or in concert with others, to
seek to control the management, policies or affairs of the Target
or solicit, propose, seek to effect or negotiate with any other
Person (including, without limitation, the Target) with respect
to any form of business combination or other extraordinary
transaction with the Target or any of its stockholders; solicit,
make or propose, or negotiate with any other Person with respect
to, or announce an intent to make, any tender offer or exchange
offer for any Target Securities; publicly disclose an intent,
purpose, plan or proposal with respect to the Target or the
Target Securities that would violate the provisions of this
Section 13.1(a); or assist, participate in, facilitate or solicit
any effort or attempt by any Person to do or seek to do any of
the foregoing.
(b) For purposes of this Agreement, "Standstill Period", with
respect to any Partner or former Partner, shall mean the period that starts on
the Execution Date and ends on the Closing Date; provided, however, that, in the
event all of the Partners remaining in the Partnership belong to the same
General Partner Group, the Standstill Period solely with respect to such
remaining Partners shall end on the day that the last in time Partner of the
other General Partner Group ceases to be a Partner of the Partnership.
Notwithstanding anything herein to the contrary, no Partner shall be deemed to
have violated this Section 13.1 in the event that such Partner acquires
beneficial ownership of the Target Securities pursuant to a transaction in which
such Partner acquires another Person, in circumstances in which the principal
purpose of such transaction is not to acquire the Target Securities or otherwise
to circumvent the intent of this agreement, provided that the number of the
Target Securities so acquired shall not exceed five (5) percent of the
outstanding Target Securities on the day of such acquisition, and such Target
Securities shall, immediately after such acquisition, be contributed to the
Partnership by such Partner. Until the Partnership Files a Regulatory Document
to publicly disclose its holdings of the Target Securities, a Partner shall not,
and shall not permit any of its Affiliates to act in any way that triggers any
public disclosure or any disclosure to any third-party (other than an Affiliate
of such Partner, but including without limitation any Regulatory Authority,
Person, Target or governmental agency, organization, or body) by such Partner
unless the General Partners unanimously consent to such action.
ARTICLE XIV
MISCELLANEOUS
Section 14.1 Power of Attorney. Each Limited Partner hereby
constitutes and appoints the General Partners as a group as its true and lawful
representative and attorney-in-fact, in its name, place and stead and with full
power of substitution to make, execute, publish, acknowledge, deliver, record
and file and swear to the execution, delivery, acknowledgment, filing and/or
recording of: (a) all amendments to this Agreement permitted by the provisions
of Section 11.1 hereof to be made without the consent of any Limited Partner and
all instruments that the attorney-in-fact deems appropriate to reflect any
change or modification of this Agreement in accordance with this Agreement; (b)
except as otherwise provided in this Agreement, 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 and (c) all such other agreements, applications,
instruments, documents, certifications, certificates and reports which may from
time to time be required by any laws applicable to the Partnership, including
without limitation the laws of the United States of America, the State of
Delaware or any other jurisdiction, or any political subdivision or agency
thereof, or any Regulatory Rule, all of the foregoing to effectuate, implement
and continue the valid and subsisting existence of the Partnership and to permit
it to conduct its business. The power of attorney granted hereby is coupled with
an interest and is irrevocable and shall (i) continue in full force and effect
notwithstanding the subsequent death, incapacity, dissolution, termination or
bankruptcy of the Limited Partner granting the same or the transfer of all or
any portion of such Limited Partner's Interest, and (ii) extend to that Limited
Partner's successors, assigns and legal representatives. Each Limited Partner
agrees to be bound by any representation made by the attorney-in-fact acting in
good faith pursuant to, and in accordance with, this power of attorney, and
hereby waives any and all defenses which may be available to contest, negate or
disaffirm the action of the attorney-in-fact taken in good faith pursuant to,
and in accordance with, this power of attorney.
Section 14.2 Notices. All notices and demands required or
permitted under this Agreement shall be in writing and shall be deemed to have
been duly given (a) upon receipt, if delivered personally or if mailed by
registered or certified mail or if sent by overnight courier or (b) upon
dispatch, if transmitted by telecopy or other means of facsimile which provides
immediate delivery to compatible equipment in the possession of the recipient,
if receipt has been confirmed, in any case, provided that any telecopy or
facsimile notices delivered hereunder must be followed by a copy of notice
delivered through registered or certified mail or by means of an overnight
courier, if to the Partnership:
Rome Acquisition Limited Partnership
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx
Telecopy Number: (000) 000-0000
Confirmation Number: (000) 000-0000
and
Attention: Xxxxx Xxxxxxx
Telecopy Number: (000) 000-0000
Confirmation Number: (000) 000-0000
if to Macklowe or Macklowe Company:
WH Rome Partners LLC
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx
Telecopy Number: (000) 000-0000)
Confirmation Number: (000) 000-0000
and
Attention: General Counsel
Telecopy Number: (000) 000-0000
Confirmation Number: (000) 000-0000
with a copy to:
Xxxxxxx Xxxx & Xxxxxxxxx LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Telecopy Number: (000) 000-0000
Confirmation Number: (000) 000-0000
if to Icahn or Icahn Company:
Meadow Star LLC
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxx
Telecopy Number: (000) 000-0000
Confirmation Number: (000) 000-0000
and
Attention: Xxxxx Xxxxx
Telecopy Number: (000) 000-0000
Confirmation Number: (000) 000-0000
with a copy to:
Icahn Associates Corp.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxxx
Telecopy Number: (000) 000-0000
Confirmation Number: (000) 000-0000
or at such other address or telecopy number as will be specified by like notice,
and if to any other Partner, to the address or telecopy number of such Partner
as shown from time to time on the records of the Partnership. Any Partner may
specify a different address or telecopy number by notifying each General Partner
thereof. Any General Partner may specify a different address or telecopy number
by notifying all Partners thereof.
Section 14.3 Entire Agreement. This Agreement constitutes the
entire agreement among the parties with respect to the subject matter hereof. As
of the Effective Date this Agreement supersedes any prior agreement or
understandings among the parties hereto. This Agreement may not be modified or
amended in any manner other than as set forth herein.
Section 14.4 Governing Law. This Agreement and the rights of the
parties hereunder shall be governed by and interpreted in accordance with the
law of the State of Delaware without giving effect to the conflict of law
principles thereof.
(a) All of the provisions of this Agreement shall be subject to
all Regulatory Rules, including, without limitation, the following:
(i) No distribution may be made to any Partner pursuant to
this Agreement (A) if such distribution would cause the
Partnership to be in violation of (1) any Regulatory Rule,
including, without limitation, the Net Capital Rule or (2) any
material contract to which the Partnership is a party; or (B)
without the prior written approval, if necessary, of the
Regulatory Authority; and
(ii) No transfer of all or a portion of a Partner's
Interest may be made unless the Regulatory Authority gives its
written consent, if necessary, to the transfer.
(b) Notwithstanding anything herein to the contrary, to the
extent that this Agreement is invalid, void, illegal or otherwise inconsistent
with Delaware law or any Regulatory Rule, such Regulatory Rule and/or Delaware
law shall override this Agreement to the extent necessary to conform this
Agreement to such Regulatory Rule or Delaware law.
Section 14.5 Voting, Consents and Approvals. Any action requiring
the consent, approval or affirmative vote of Limited Partners under this
Agreement may be taken by vote at a meeting or, in lieu thereof, by written
consent of Limited Partners with the required percentage in Interest or written
consent of the Limited Partners who have the right to approve or consent to such
action, as the case may be. The granting or withholding of consents or approvals
by any party shall be in the sole discretion of the consenting or approving
party, unless otherwise expressly provided in this Agreement.
Section 14.6 Effect. Except as herein otherwise specifically
provided, this Agreement shall be binding upon and inure to the benefit of the
parties and their legal representatives, heirs, administrators, executors,
successors and permitted assigns.
Section 14.7 Pronouns and Number. Wherever it appears appropriate
from the context, each term stated in either the singular or the plural shall
include the singular and the plural, and pronouns stated in either the
masculine, feminine or neuter shall include the masculine, feminine and neuter.
Section 14.8 Captions. Captions contained in this Agreement are
inserted only as a matter of convenience and in no way define, limit or extend
the scope or intent of this Agreement or any provision hereof.
Section 14.9 Partial Enforceability. If any provision of this
Agreement, or the application of that provision to any circumstance, shall be
held invalid, the remainder of this Agreement, or the application of that
provision to circumstances other than those to which it is held invalid, shall
not be affected thereby, except to the extent necessary to carry out the
purposes of this Agreement.
Section 14.10 Counterparts. This Agreement may be executed in
several counterparts, each of which shall be deemed an original but all of which
shall constitute one and the same instrument.
Section 14.11 Third Party Beneficiaries. The parties hereto
intend that this Agreement shall not benefit or create any right or cause of
action in or on behalf of any Person other than the parties hereto their legal
representatives, heirs, administrators, executors, successors and permitted
assigns.
Section 14.12 Specific Performance. Each Partner understands and
acknowledges that a breach or threatened breach by a Partner (the "Breaching
Partner") of any part of this Agreement could cause the Partnership and/or each
of its Partners, other than the Breaching Partner, irreparable injury; damages
would not adequately compensate the Partnership and/or each of its Partners for
such breach or threatened breach; and damages in such event would be difficult
if not impossible to determine. Therefore, in addition to any other remedies the
Partnership and/or each of its Partners, may have at law, the Partnership and/or
each of its Partners, other than the Breaching Partner, shall be entitled to the
remedies of injunction, specific performance and other equitable relief, without
posting any bonds, as may be available to restrain or prevent a breach or
threatened breach of any of the Breaching Partner's obligations under this
Agreement. This provision shall not, however, be construed as a waiver of any
other rights or remedies that the Partnership and/or each of its Partners may
have at law or in equity, including damages.
Section 14.13 Consultation and Cooperation. Any public statement
(including press releases but excluding filings with the Securities and Exchange
Commission) which any Partner desires to make relating to or in connection with
the acquisition of Target or this Agreement shall require the unanimous consent
of the General Partners (which consent shall not be unreasonably withheld,
conditioned or delayed).
[Signature Page Follows]
IN WITNESS WHEREOF, the undersigned have executed this Agreement
as of the date first written above.
WH ROME PARTNERS LLC
as General Partner and Limited Partner
By: WH ROME INC.
(its Managing Member)
by: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
XXXXX XXXXXXXX solely as
personal guarantor of WH Rome
Partners LLC's obligations to
pay the Failure to Contribute
Amount
by: /s/ Xxxxx Xxxxxxxx
----------------------------------
Name: Xxxxx Xxxxxxxx
MEADOW STAR LLC
as General Partner and Limited Partner
by: /s/ Xxxxx Xxxxxxx
----------------------------------
Name: Xxxxx Xxxxxxx
Title: President
XXXX X. ICAHN
solely as personal guarantor of
Meadow Star LLC's obligations
to pay the Failure to Contribute Amount
by: /s/ Xxxx X. Icahn
----------------------------------
Name: Xxxx X. Icahn
[Signature Page to Agreement of Limited Partnership]
