EXHIBIT 3
AMENDMENT TO AGREEMENT OF LIMITED PARTNERSHIP
OF ROME ACQUISITION LIMITED PARTNERSHIP
This Amendment, dated as of November 30, 2006 (this "Amendment"),
to the Agreement of Limited Partnership, effective as of November 15, 2006 (the
"Original Partnership Agreement" and, together with this Amendment, this
"Agreement") of Rome Acquisition Limited Partnership, a Delaware limited
partnership (the "Partnership"), is made this day by WH Rome Partners LLC, a
Delaware limited liability company, as a General Partner ("Macklowe", in its
capacity as a General Partner), Meadow Star LLC, a Delaware limited liability
company, as a General Partner ("Icahn", in its capacity as a General Partner)
and Xxxx-Xxxx Realty, L.P., a Delaware limited partnership, as a Limited Partner
("Xxxx-Xxxx Company"). Capitalized terms used and not otherwise defined herein
shall have the meanings set forth in the Original Partnership Agreement.
R E C I T A L S
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WHEREAS, on November 15, 2006, the Certificate of Limited
Partnership of the Partnership was filed with the Secretary of State of Delaware
and Macklowe, Macklowe Company, Icahn and Icahn Company entered into the
Original Partnership Agreement; and
WHEREAS, the General Partners desire to amend the Original
Partnership Agreement to admit Xxxx-Xxxx Company as an additional Limited
Partner; and
WHEREAS, Section 11.1 of the Original Partnership Agreement
provides that amendments to the Original Partnership Agreement for the purpose
of admitting additional Limited Partners 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 thereof.
NOW, THEREFORE, in consideration of the foregoing premises, the
terms and conditions hereinafter set forth and other good and valuable
consideration, the parties hereby agree to amend the Original Partnership
Agreement as set forth below:
SECTION 1. Xxxx-Xxxx Company is hereby admitted to the
Partnership as a Limited Partner.
SECTION 2. Section 2.1 of the Original Partnership Agreement is
hereby amended and restated in its entirety as follows:
Name. The name of the Partnership is "Rome
Acquisition Limited 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 3. The following sentence is hereby added as the last
sentence of Section 3.1 of the Original Partnership Agreement:
Notwithstanding anything to the contrary in this
Section 3.1, Xxxx-Xxxx Company hereby agrees that
its initial capital commitment amount shall be $400
million. On November 29, 2006, Xxxx-Xxxx Company
deposited into a segregated account at JPMorgan cash
in the amount of $400 million. Xxxx-Xxxx Company
shall become irrevocably committed to contribute
such amount in cash to the Partnership as of 11:59
p.m. on December 2, 2006, with such commitment to be
funded to the Partnership on December 4, 2006,
provided that Xxxx-Xxxx Company may elect at any
time prior to 11:59 p.m. on December 2, 2006, in its
sole and absolute discretion and for any reason,
including, without limitation, its evaluation of the
Target based on its due diligence review of the
Target, not to become irrevocably committed to
contribute such amount to the Partnership in which
case Xxxx-Xxxx Company shall cease to be a Limited
Partner.
If Xxxx-Xxxx Company elects pursuant to the
preceding paragraph not to contribute its initial
capital commitment to the Partnership or is not
satisfied, in its sole and absolute discretion, with
the existing terms of the partnership agreement,
including, without limitation, the rights and
obligations of the Partners and the amount of each
Partner's capital account, then Xxxx-Xxxx Company
will cease to be a Limited Partner as of 11:59 p.m.
on December 2, 2006 and neither Xxxx-Xxxx Company
nor any of its affiliates shall become a General
Partner. For purposes of clarity, Xxxx-Xxxx Company
or any of its affiliates shall only become a General
Partner pursuant to a subsequent amendment to this
Agreement, in accordance with the terms of this
Agreement.
SECTION 4. Section 3.8 of the Original Partnership Agreement is
hereby amended and restated in its entirety as follows:
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 General 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 General 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.
SECTION 5. Section 5.2 of the Original Partnership Agreement is
hereby amended and restated in its entirety as follows:
Section 5.2. Withdrawal. Except pursuant to Section
3.1 and Section 5.3 or Article VII, 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 6. Section 6.4 of the Original Partnership Agreement is
hereby amended by amending and restating section (a)(i) thereof in its entirety
as follows:
(i) indemnify and hold harmless each member
of the General Partner Group and Affiliates of each
General Partner and each Limited Partner and their
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
SECTION 7. Section 11.1 of the Original Partnership Agreement is
hereby amended and restated in its entirety as follows:
Approval of Amendments. Amendments to this Agreement
may be made by the General Partners together with
Xxxx-Xxxx Company (so long as Xxxx-Xxxx Company is a
Limited Partner), 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 and
Xxxx-Xxxx Company (so long as Xxxx-Xxxx Company is a
Limited Partner), 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 and Xxxx-Xxxx Company (so long
as Xxxx-Xxxx Company is a Limited Partner). 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.
SECTION 8. Exhibit A to the Original Partnership Agreement is
hereby amended to amend and restate the definition of "Limited Partners" in its
entirety as follows:
"Limited Partners" means (A) each of Icahn Company,
Macklowe Company and Xxxx-Xxxx Company (so long as
Xxxx-Xxxx Company is a Limited Partner), (B) from
time to time, such Persons plus each Person
subsequently admitted as an additional Limited
Partner and each Person admitted as a Substituted
Limited Partner pursuant to Section 7.2 hereof less
any such Person who shall withdraw as a Limited
Partner pursuant to Section 5.2 hereof, and (C) with
respect to those provisions of this Agreement
concerning a Limited Partner's distributions or
allocations of Profits and Losses, any permitted
assignee of a Limited Partner's Interest.
SECTION 9. Exhibit A to the Original Partnership Agreement is
hereby amended to amend and restate the definition of "Capital Account" in its
entirety as follows:
"Capital Account" means, with respect to each
Partner, the account so designated established on
the books and records of the Partnership for each
Partner. Without in any way affecting the issue of
whether or not any Partner has breached this
agreement by not funding the Partnership prior to
November 28, 2006, in accordance the requirements of
Section 3.1 of the Original Partnership Agreement,
upon funding their respective Initial Capital
Contributions by depositing the funds into an
account of the Partnership, the Capital Account of
each of Icahn, Icahn Company, Macklowe and Macklowe
Company shall be as set forth on Schedule A to this
Agreement. As of November 29, 2006, in consideration
for its agreements contained herein, the Capital
Account of Xxxx-Xxxx shall be $100. Upon funding its
initial capital commitment pursuant to Section 3.1
of this Agreement by depositing the funds into an
account of the Partnership, the Capital Account of
Xxxx-Xxxx Company (so long as Xxxx-Xxxx Company is a
Limited Partner) shall be as set forth on Schedule B
to this Agreement. The Capital Account of each
Partner will be (i) increased by (A) the amount of
Profits (and income and gain) credited to that
Partner's Capital Account pursuant to Sections 4.1
and 4.2 hereof and (B) the amount of Additional
Capital Contributions made by that Partner to the
Partnership; and (ii) decreased by (A) the amount of
Losses charged to that Partner's Capital Account
pursuant to Article IV hereof and the amount of loss
and (B) the amount of distributions in cash and the
fair market value of other Partnership Property
distributed (net of any liabilities encumbering the
distributed Partnership Property that the Partner
takes subject to or assumes) to that Partner
pursuant to Article V and Section 9.2 hereof.
Notwithstanding anything to the contrary contained
in this definition or in Article IV hereof, each
Capital Account shall be determined in accordance
with the principles of Treasury Regulations ss.
1.704-l(b)(2)(iv).
SECTION 10. Schedule A to the Original Partnership Agreement is
hereby amended and restated in its entirety as Exhibit B to this Amendment.
SECTION 11. Miscellaneous.
(a) Governing Law. This Amendment shall be construed,
performed and enforced in accordance with, and governed by, the laws
of the State of Delaware.
(b) Effect of Amendment. On and after the date hereof, each
reference in the Original Partnership Agreement to "this Agreement", "hereof",
"hereunder", or words of like import referring to the Original Partnership
Agreement shall mean and be a reference to the Original Partnership Agreement,
as amended by this Amendment. The Original Partnership Agreement, as amended by
this Amendment, shall continue to be in full force and effect and is hereby in
all respects ratified and confirmed.
(c) Entire Agreement. This Amendment, together with the Original
Partnership Agreement, contains the entire understanding among the parties
hereto with respect to the transactions contemplated hereby and supersedes and
replaces all prior and contemporaneous agreements and understandings, oral or
written, with regard to such transactions. All Exhibits hereto and any documents
and instruments delivered pursuant to any provision hereof are expressly made a
part of this Amendment as fully as though completely set forth herein.
(d) Counterparts. This Amendment may be executed in counterparts,
each of which shall be deemed an original, but all of which shall constitute the
same instrument.
(e) Section and Paragraph Headings. The section and paragraph
headings in this Amendment are for reference purposes only and shall not affect
the meaning or interpretation of this Amendment.
(f) Severability. If any term, provision, covenant or restriction
of this Amendment is held by a court of competent jurisdiction or other
authority to be invalid, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions of this Amendment shall remain in full
force and effect and shall in no way be affected, impaired or invalidated so
long as the economic or legal substance of the transactions contemplated hereby
is not affected in any manner materially adverse to any party. Upon such a
determination, the parties shall negotiate in good faith to modify this
Amendment so as to effect the original intent of the parties as closely as
possible in an acceptable manner in order that the transactions contemplated
hereby be consummated as originally contemplated to the fullest extent possible.
(g) No Waiver of Rights. Except as expressly set forth herein,
this Amendment shall not by implication or otherwise limit, impair, constitute a
waiver of, or otherwise affect the rights and remedies of Icahn or Macklowe
under the Original Partnership Agreement, and shall not alter, modify, amend or
in any way affect any of the terms, conditions, obligations, covenants or
agreements contained in the Original Partnership Agreement, all of which are
ratified and affirmed in all respects and shall continue in full force and
effect. Notwithstanding the foregoing, if Xxxx-Xxxx elects to continue as a
Limited Partner or become a General Partner, Xxxx-Xxxx will become a Partner on
such terms and conditions as Xxxx-Xxxx, Macklowe and Icahn shall agree..
[Signature Page Follows]
IN WITNESS WHEREOF, the undersigned have executed this Amendment as of
the date first written above.
WH ROME PARTNERS LLC
as General Partner
By: WH ROME INC.
(its Managing Member)
by: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
MEADOW STAR LLC
as General Partner
by: /s/ Xxxxx Xxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxx
Title: President
XXXX-XXXX REALTY, L.P.
By: Xxxx-Xxxx Realty Corporation, its
general partner
by: /s/ Xxxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: President and Chief Executive
Officer
[Signature Page to Amendment to Agreement of
Limited Partnership of Rome Acquisition Limited Partnership]
EXHIBIT A
---------
Schedule B
----------
Partner Capital Contribution
------- --------------------
Xxxx-Xxxx Company $400,000,000
EXHIBIT B
---------
Schedule A
----------
Partner Initial Capital Contribution
------- ----------------------------
Macklowe $597,000,000.00
Macklowe Company $3,000,000.00
Icahn $597,000,000.00
Icahn Company $3,000,000.00
