AGREEMENT OF LIMITED PARTNERSHIP OF ROME ACQUISITION LIMITED PARTNERSHIP
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.
2
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.
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.
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).
3
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.
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.
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.
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.
4
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.
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.
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 § 704(c), the Treasury
Regulations there-under, and Treasury Regulations § 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.
5
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.
6
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.
7
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
8
(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.
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.
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.
9
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.
10
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.
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.
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.
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.
11
ARTICLE
VIII
DISSOLUTION
OF THE PARTNERSHIP
Section
8.1 Causes
of Dissolution.
The
Partnership shall be dissolved upon the earliest of:
The
expiration of its Term as provided in this Agreement;
The
unanimous determination by all of the General Partners in their sole discretion
to dissolve;
The
entry
of a decree of judicial dissolution;
The
failure by the General Partners to agree on any additional capital commitments
pursuant to Section 3.2 hereof; or
Any
act
or event specified in the Uniform Act § 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.
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.
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.
12
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 § 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 § 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.
13
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:
14
(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.
15
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.
16
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
17
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.
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
18
(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.
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.
19
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
14.13Consultation
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]
20
Schedule
A
|
Partner
|
Initial
Capital Contribution
|
|
Macklowe
|
$6,000,000.00
|
|
Macklowe
Company
|
$594,000,000.00
|
|
Icahn
|
$6,000,000.00
|
|
Icahn
Company
|
$594,000,000.00
|
Exhibit
A to the Limited Partnership Agreement of
Rome
Acquisition Partnership
“Accounting
Period”
means,
as the context may require, the period beginning as of the Effective Date or
on
the day following the last day of the immediately preceding Accounting Period,
and ending on the next succeeding of the following:
|
1)
|
the
last day of each Fiscal Year of the
Partnership;
|
|
2)
|
the
day prior to the day as of which a Person is admitted as a
Partner;
|
|
3)
|
the
day prior to the day as of which any Partner makes a Capital
Contribution;
|
|
4)
|
the
day prior to the date of any distribution to any Partner pursuant
to this
Agreement;
|
|
5)
|
the
day prior to the date of exercise of a Purchase Option;
and
|
|
6)
|
any
day specified as the last day of an Accounting Period by the General
Partners.
|
“Acquisition
Agreement”
has
the
meaning specified in Section 3.1 hereof.
“Additional
Capital Commitment”
has
the
meaning specified in Section 3.2 hereof.
“Additional
Capital Contribution”
has
the
meaning specified in Section 3.2 hereof.
“Affiliate”
means,
“Affiliate” of any Person means any other Person that, directly or indirectly,
controls, is controlled by or is under direct or indirect common control with,
such Person and with respect to any natural Person, any other Person having
a
relationship by blood, marriage or adoption, not more remote than first cousins
with such natural Person. For the purposes of this Agreement, “control” when
used with respect to any Person means the power to direct the management and
policies of such Person, directly or indirectly, whether through the ownership
of Voting Stock or other equity interests, by contract or otherwise, and the
terms “controlling” and “controlled” have meanings correlative to the
foregoing.
“Agreement”
means
this Limited Partnership Agreement of the Partnership, as amended, modified
or
supplemented from time to time.
“beneficially
own” or “beneficial ownership” has the meaning given to such terms in Rule 13d-3
of the 1934 Act.
“Breaching
Partner”
has
the
meaning specified in Section 14.12 hereof.
“Buy-Sell
Offer”
has
the
meaning specified in Section 5.3 hereof.
“Capital
Account”
means,
with respect to each Partner, the account so designated established on the
books
and records of the Partnership for each Partner. As of the Execution Date,
the
Capital Account of each Partner is as set forth on Schedule A to the 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 §
1.704-l(b)(2)(iv).
“Capital
Contribution”
means
the total amount of cash contributed to the capital of the Partnership by any
Partner.
“Capital
Contribution Request Letter”
has
the
meaning specified in Section 3.2 hereof.
“Clearing
Agency”
has
the
meaning specified in § 3(a)(23)(A) and (B) of the 1934 Act.
“Closing
Date”
means
the date on which the transaction contemplated by the Acquisition Agreement,
if
any, is consummated.
“Code”
means
the Internal Revenue Code of 1986, as amended from time to time (or any
succeeding law). References to sections of the Code shall include amended or
successor provisions thereto.
“Commitment
Letter”
has
the
meaning specified in Section 3.2 hereof.
“Contribution
Right”
has
the
meaning specified in Section 3.2 hereof.
“Effective
Date”
has
the
meaning specified in the preamble to this Agreement.
“Examining
Authority”
means
the Partnership’s examining authority as defined in the Net Capital
Rule.
“Exchange”
means
any securities or commodity exchange.
“Execution
Date”
means
the date of the execution by the Partnership or its wholly-owned subsidiary
and
the Target of the Acquisition Agreement.
“Exiting
Partner”
has
the
meaning specified in Section 5.3 hereof.
“Failure
to Contribute”
has
the
meaning specified in Section 3.1 hereof.
“Failure
to Contribute Amount”
has
the
meaning specified in Section 3.1 hereof.
“File”
has
the
meaning specified in Section 10.2 hereof.
“Fiscal
Year”
has
the
meaning specified in Section 10.3 hereof.
“General
Partner”
means
each of Macklowe and Icahn and any of its respective successor, assignee or
transferee permitted by this Agreement, so long as it is a general partner
of
the Partnership. At such time as there is only one general partner of the
Partnership, all references in the agreement to the “General Partners” or to
more than one General Partner shall be deemed to refer only to the remaining
general partner.
“General
Partner Group”
means
each of Icahn Group and Macklowe Group.
“group”
has the meaning given to such term in Rule 13d-3 of the 1934 Act.
“Icahn”
has
the
meaning specified in the preamble to this Agreement.
“Icahn
Company”
has
the
meaning specified in the preamble to this Agreement.
“Icahn
Group”
means
a
group consisting of Icahn and Icahn Company.
“Initial
Capital Commitment”
has
the
meaning specified in Section 3.1 hereof.
“Initial
Capital Contribution”
has
the
meaning specified in Section 3.1 hereof.
“Initial
Current Market Price”
means
with respect to each Target Security, the Current Market Price of the Target
Security at the time of its contribution to the Partnership pursuant to this
Agreement.
“Initiating
Designee(s)”
has
the
meaning specified in Section 5.3 hereof.
“Initiating
Partner”
has
the
meaning specified in Section 5.3 hereof.
“Interest”
means
the individual interest of each Partner in the Partnership at any particular
time.
“Indemnified
Party”
has
the
meaning specified in Section 6.4 hereof.
“Limited
Partners”
means
(A) (i) each of Icahn Company and Macklowe Company and (ii) as of the Effective
Date the Persons listed as limited partners on the signature pages here-to
plus
any other Person who the General Partner agrees to admit as a Limited Partner
effective as of the Effective Date who signs a counterpart of this Agreement
(the “Additional
Effective Date Limited Partners”);
(B)
from time to time, such Persons plus each Person subsequently admitted as a
Limited Partner pursuant to Section 3.3(a) hereof 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(a) hereof;
and
(C) with respect to those provisions of this Agreement concerning a Limited
Partner’s rights to receive distributions or allocations of Profits and Losses,
any permitted assignee of a Limited Partner’s Interest.
“Losses”
has
the
meaning specified below in the definition of “Profits.”
“Macklowe”
has
the
meaning specified in the preamble to this Agreement.
“Macklowe
Company”
has
the
meaning specified in the preamble to this Agreement.
“Macklowe
Group”
means
a
group consisting of Macklowe and Macklowe Company and all Partners other than
Icahn and Icahn Company.
“Majority-in-Interest
of the Limited Partner”
means
Limited Partners whose aggregate Capital Account balances exceed 50% of the
aggregate Capital Account balances of all Limited Partners.
“Material
Breach”
has
the
meaning specified in Section 5.4 hereof.
“Net
Capital Rule”
means
Rule 15c3-1 promulgated pursuant to the 1934 Act.
“Non-Contributing
Partner”
has
the
meaning specified in Section 3.1 hereof.
“Non-Initiating
Designee(s)”
has
the
meaning specified in Section 5.3 hereof.
“Non-Initiating
Partner”
has
the
meaning specified in Section 5.3 hereof.
“Partner”
means
any General Partner or any Limited Partner.
“Partners”
means
collectively all General Partners and all Limited Partners.
“Partnership
Property”
means
any real or personal property, whether tangible or intangible, inclusive without
limitation of any Target Securities, owned by the Partnership and any negative
goodwill.
“Payment
Notice”
has
the
meaning specified in Section 5.4 hereof.
“Person”
means
any individual, venture, association, partnership, corporation, limited
liability company, trust or other entity.
“Profits”
and
“Losses”
mean,
for each Accounting Period, the net profit or net loss, respectively, of the
Partnership determined in accordance with generally accepted accounting
principles in the United States.
“Purchase
Option”
has
the
meaning specified in Section 5.4 hereof.
“Purchasing
Partner”
has
the
meaning specified in Section 5.3 hereof.
“Regulatory
Authority”
means
collectively the Commission, the Examining Authority, any SRO, Exchange,
Clearing Agency, the Federal Trade Commission or other regulatory authority
which has regulatory authority over the Partnership.
“Regulatory
Documents”
has
the
meaning specified in Section 10.2 hereof.
“Regulatory
Rule”
means
each statute, regulation, rule and other requirement of the Regulatory Authority
applicable to the Partnership or its affairs.
“Shared
Expenses”
has
the
meaning specified in Section 3.8 hereof.
“SRO”
means
self-regulatory organization, as that term is defined in § 3(a)(26) of the 1934
Act.
“Standstill
Period”
means
the period that begins on the Execution Date and ends on the Closing
Date.
“Subject
Partner”
has
the
meaning specified in Section 5.4 hereof.
“Substituted
Limited Partner”
means
any Person admitted to the Partnership as a Substituted Limited Partner pursuant
to the provisions of Section 7.2 hereof.
“Target”
means
collectively Reckson Associates Realty Corp., a Maryland corporation, and
Reckson Operating Partnership, L.P., a Delaware limited
partnership.
“Target
Security”
means
the common stock, par value $0.01 per share, of Reckson Associates Realty Corp.
and the units of limited partnership interest of Reckson Operating Partnership,
L.P.
“Term”
has
the
meaning specified in Section 2.5 hereof.
“Transfer”
has
the
meaning specified in Section 7.1 hereof.
“Treasury
Regulations”
means
the Treasury Regulations promulgated under the Code, as such regulations may
be
amended from time to time (including corresponding provisions of succeeding
Treasury Regulations).
“Uniform
Act”
means
the Delaware Revised Uniform Limited Partnership Act, as amended from time
to
time (or any succeeding law).
“Voting
Stock”
of
any
Person means capital stock of such Person which ordinarily has voting power
for
the election of directors (or persons performing similar functions) of such
Person, whether at all times or only as long as no senior class of securities
has such voting power by reason of any contingency.
“1934
Act”
means
the Securities Exchange Act of 1934, as amended from time to time (or any
succeeding law).
