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EXHIBIT 10.6
AGREEMENT
OF LIMITED PARTNERSHIP
OF
XXXXXXXX INVESTMENTS, L.P.
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TABLE OF CONTENTS
PAGE
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Article 1. Partnership............................................................................1
1.1 Formation; Partnership Interest...............................................1
1.2 Name..........................................................................1
1.3 Number of Partners...........................................................2
Article 2. Definitions............................................................................2
Article 3. Capitalization.........................................................................5
3.1 Initial Capital Contributions.................................................5
3.2 Issuance and Conversion of Units..............................................5
3.3 Additional Funds..............................................................8
3.4 Capital Accounts..............................................................9
3.5 Interest on and Return of Capital.............................................9
3.6 Negative Capital Accounts.....................................................9
3.7 Limitation on Contributions and Obligations of Partners.......................9
Article 4. Principal Office......................................................................10
Article 5. Purpose and Powers of Partnership.....................................................10
5.1 Purposes.....................................................................10
5.2 Powers.......................................................................10
Article 6. Term..................................................................................10
Article 7. Allocations of Profits and Losses.....................................................10
Article 8. Cash Available for Distribution.......................................................10
8.1 Cash Flow....................................................................10
8.2 Consent to Allocations and Distributions.....................................11
8.3 Right to Limit Distributions.................................................11
Article 9. Management of Partnership.............................................................11
9.1 General Partner..............................................................11
9.2 Limitations on Power and Authority of Partners...............................13
9.3 Limited Partners.............................................................14
9.4 Liability of General Partner.................................................14
9.5 Indemnity....................................................................14
9.6 Other Activities of Partners and Agreements with Related Parties.............15
9.7 Other Matters Concerning the General Partner.................................15
9.8 Partner Exculpation..........................................................16
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9.9 General Partner Expenses and Liabilities.....................................17
Article 10. Banking...............................................................................17
Article 11. Accounting............................................................................17
11.1 Fiscal Year..................................................................17
11.2 Books of Account.............................................................18
11.3 Method of Accounting.........................................................18
11.4 Tax Matters Partner..........................................................18
Article 12. Transfers of Partnership Interests....................................................18
12.1 General Partner..............................................................18
12.2 Limited Partner..............................................................18
12.3 Admission Adjustments........................................................20
Article 13. Admission of New Partners.............................................................20
Article 14. Termination, Liquidation and Dissolution of Partnership...............................20
14.1 Termination Events...........................................................20
14.2 Method of Liquidation........................................................21
14.3 Date of Termination..........................................................21
14.4 Reconstitution Upon Bankruptcy...............................................21
14.5 Death, Legal Incompetency, Etc. of a Limited Partner.........................22
Article 15. Power of Attorney.....................................................................22
Article 16. Amendment of Agreement................................................................23
Article 17. Miscellaneous.........................................................................24
17.1 Notices......................................................................24
17.2 Modifications................................................................24
17.3 Successors and Assigns.......................................................24
17.4 Duplicate Originals......................................................... 25
17.5 Construction.................................................................25
17.6 Governing Law................................................................25
17.7 Other Instruments............................................................25
17.8 General Partner with Interest as Limited Partner.............................25
17.9 Legal Construction...........................................................25
17.10 Gender...................................................................... 25
17.11 Prior Agreements Superseded..................................................25
17.12 No Third Party Beneficiary...................................................25
17.13 Purchase for Investment......................................................25
17.14 Waiver.......................................................................26
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17.15 Time of Essence..............................................................26
17.16 Counterparts.................................................................26
Schedule A - Partners, Capital Accounts and Partnership Interests
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AGREEMENT OF LIMITED PARTNERSHIP
OF
XXXXXXXX INVESTMENTS, L.P.
THIS AGREEMENT OF LIMITED PARTNERSHIP (this "Agreement") made and
entered into effective as of ____ day of _______, 199_, by and among XXXXXXXX XX
HOLDINGS, INC. (the "General Partner"), a Georgia corporation, as the General
Partner, and those Persons whose names are set forth in Schedule A as attached
hereto, as the Limited Partners (the "Limited Partners"), including XXXXXXXX XX
HOLDINGS, INC. (the "Initial Limited Partner"), a Georgia corporation, together
with any other Persons who become Partners in the Partnership as provided herein
(the General Partner and each Limited Partner being a "Partner" and
collectively, the "Partners"). XXXXXXXX CAPITAL CORPORATION ("Xxxxxxxx" or the
"Company"), a Georgia corporation, owns all of the stock of the General Partner
and the Initial Limited Partner but is not a Partner in the Partnership.
W I T N E S S E T H:
WHEREAS, the parties hereto desire to form a limited partnership (the
"Partnership") under the provisions of the Georgia Revised Limited Partnership
Act (the "Act") for the purposes hereinafter described; and
WHEREAS, the parties hereto desire to set forth herein their respective
rights, duties and responsibilities with respect to such limited partnership;
NOW THEREFORE, in consideration of the premises, and of the mutual
promises, obligations and agreements contained herein, the parties hereto,
intending to be legally bound, do hereby agree as follows:
Article 1. Partnership.
1.1 Formation; Partnership Interest. The General Partner
and the Initial Limited Partner hereby form the Partnership as a Georgia limited
partnership according to all of the terms and provisions of this Agreement and
otherwise in accordance with the Act. The General Partner is the sole general
partner and the Initial Limited Partner is the sole limited partner of the
Partnership; however, it is contemplated that additional Limited Partners shall
become Partners in the Partnership as provided herein in the future. No Partner
has any interest in any Partnership property and the interest of all Partners in
the Partnership are, for all purposes, personal property.
1.2 Name. The Partnership name shall be "Xxxxxxxx
Investments, L.P.," but the General Partner may from time to time change the
name of the Partnership or may adopt such trade or fictitious names as it may
determine.
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1.3 Number of Partners. Unless the General Partner
determines in good faith that the Partnership will not be classified as a
"publicly traded partnership" for Federal income tax purposes, the Partnership
shall not at any time have more than 100 Partners (including as Partners those
persons indirectly owning an interest in the Partnership through a partnership,
limited liability company, S corporation or grantor trust (a "Flow Through
Entity"), but only if substantially all of the value of such person's interest
in the Flow Through Entity is attributable to the Flow Through Entity's interest
(direct or indirect) in the Partnership).
Article 2. Definitions.
2.1 As used in this Agreement, the following terms shall
have the meanings set forth respectively after each:
"Act" shall mean the Georgia Revised Uniform Limited Partnership Act
(Official Code of Georgia Annotated, Sections 14-9-100 et seq.), as amended from
time to time, and any successor statute. References to specific Sections of the
Act refer to the corresponding Sections of the Official Code of Georgia
Annotated.
"Agreement" shall mean this Agreement of Limited Partnership, as it may
be amended from time to time.
"Articles of Incorporation" shall mean the Articles of Incorporation of
Xxxxxxxx filed in the State of Georgia on December 16, 1997, as amended or
restated from time to time.
"Bankruptcy" of a Partner shall mean (a) the filing by a Partner of a
voluntary petition seeking liquidation, reorganization, arrangement or
readjustment, in any form, of its debts under Title 11 of the United States Code
(or corresponding provisions of future laws) or any other Federal or state
insolvency law, or a Partner's filing an answer consenting to or acquiescing in
any such petition, (b) the making by a Partner of any assignment for the benefit
of its creditors or the admission by a Partner in writing of its inability to
pay its debts as they mature, or (c) the expiration of sixty (60) days after the
filing of any involuntary petition under Title 11 of the United States Code (or
corresponding provisions of future laws), seeking liquidation, reorganization,
arrangement or readjustment of its debts under any other Federal or state
insolvency law, provided that the same shall not have been vacated, set aside or
stayed within such 60-day period.
"Bylaws" shall mean the Bylaws of Xxxxxxxx, dated December 16, 1997, as
amended or restated from time to time.
"Capital Account" shall mean the capital account maintained by the
Partnership for each Partner as described in Section 3.4 below. The Capital
Account balance of each Partner who is a Partner as of the effective date of
this Agreement shall be set forth opposite such Partner's name on Schedule A
hereto. The General Partner shall maintain the information set forth in Schedule
A hereto, as such information shall change from time to time, in such form as
the General Partner
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deems appropriate for the conduct of the Partnership's affairs, and Schedule A
shall be deemed amended from time to time to reflect the information so
maintained by the General Partner, whether or not a formal amendment to this
Agreement has been executed amending such Schedule A. Such information shall
reflect (and Schedule A shall be deemed amended from time to time to reflect)
the issuance of any additional Units to the General Partner or any other Person,
the transfer of Units and the redemption of any Units, all as contemplated
herein.
"Capital Contribution" shall mean, when used in respect of a Partner,
if applicable, the initial capital contribution of such Partner as set forth in
Section 3.1 below, and any other amounts of money or the fair market value of
other property contributed by such Partner to the capital of the Partnership
with respect to the Partner's interest in the Partnership, including the Capital
Contribution made by any predecessor holder of the Partnership Interest of such
Partner.
"Xxxxxxxx" shall mean Xxxxxxxx Capital Corporation, a Georgia
corporation, sometimes referred to in this Agreement as the "Company".
"Xxxxxxxx Partners" shall mean the General Partner (so long as the
General Partner is Xxxxxxxx XX Holdings, Inc.) and the Initial Limited Partner.
References to a "Xxxxxxxx Partner" shall be to either of the Xxxxxxxx Partners.
"Code" shall mean the Internal Revenue Code of 1986, as the same may be
amended from time to time, and any successor statute. Any reference herein to a
specific Section or Sections of the Code shall be deemed to include a reference
to any corresponding provision of future law.
"Common Share" shall have the meaning provided in Section 3.2(A).
"Company" means Xxxxxxxx Capital Corporation, a Georgia corporation.
"Exchange Date" shall have the meaning provided in Section 3.2(D).
"Exchange Notice" shall have the meaning provided in Section 3.2(C).
"Exchanging LP" shall have the meaning provided in Section 3.2(D).
"Flow Through Entity" shall have the meaning provided in Section 1.3
above.
"General Partner" means Xxxxxxxx XX Holdings, Inc., a Georgia
corporation, or its successors as general partner of the Partnership.
"Fiscal Year" shall have the meaning provided in Section 11.1.
"Initial Limited Partner" shall mean Xxxxxxxx XX Holdings, Inc., a
Georgia corporation.
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"IRS" shall have the meaning provided in Section 11.6.
"Limited Partner" shall mean any Person (i) named as a Limited Partner
in Schedule A attached hereto, as such Schedule may be amended from time to time
or who has become a Limited Partner pursuant to the terms and conditions of this
Agreement, and (ii) who holds a partnership interest, in such Person's capacity
as a Limited Partner in the Partnership. "Limited Partners" means all such
persons.
"Majority-in-Interest of the Limited Partners" shall mean, as of any
given time, Limited Partners who own more than fifty percent (50%) of the
Percentage Interests in the Partnership held by Limited Partners.
"Market Price" shall have the mean the value of a Common Share as
determined by the General Partner in its sole discretion.
"Partners" shall mean, collectively, the General Partner and the
Limited Partners, or any additional or successor partners of the Partnership
admitted to the Partnership in accordance with the terms of this Agreement.
References to a "Partner" shall be to any one of the Partners.
"Partnership" means the limited partnership formed under the Act and
pursuant to this Agreement, and any successor thereto.
"Partnership Interest" shall mean the ownership interest of a Partner
in the Partnership at any particular time, including the right of such Partner
to any and all benefits to which such Partner may be entitled as provided in
this Agreement, and to the extent not inconsistent with this Agreement, under
the Act, together with the obligations of such Partner to comply with all of the
terms and provisions of this Agreement and the Act.
"Percentage Interest" shall mean, as to each Partner, the quotient
(expressed as a percentage) arrived at by dividing the number of Units held by
that Partner, by the total number of Units issued and outstanding at the time.
The respective Percentage Interest of the Partners as of the date of this
Agreement are set forth in Schedule A attached to this Agreement.
"Person" means any individual, partnership, corporation, trust,
unincorporated organization, association, limited liability company or other
entity.
"Profits" and "Losses" shall mean for each fiscal year or portion
thereof, an amount equal to the Partnership's items of taxable income or loss
for such year or period, determined in accordance with Section 703(a) of the
Code with the following adjustments:
(i) any income which is exempt from Federal
income tax and not otherwise taken into account in computing
net Profits or net Losses shall be added to taxable income or
loss;
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(ii) any expenditures of the Partnership
described in Code Section 705(a)(2)(B) or treated as Section
705(a)(2)(B) expenditures under Regulations Section
1.704-1(b)(2)(iv)(i) and not otherwise taken into account in
computing Profits or Losses, will be subtracted from taxable
income or loss;
"Record Date" shall have the meaning provided in Section 9.1(K).
"Regulations" shall mean the Income Tax Regulations, including
Temporary Regulations, promulgated under the Code, as such regulations may be
amended from time to time (including corresponding provisions of succeeding
regulations).
"Rights" shall have the meaning provided in Section 3.2(D).
"TMP" shall have the meaning provided in Section 11.4.
"Transfer" shall have the meaning provided in Section 12.2(A).
"Transferee" shall have the meaning provided in Section 12.2(B).
"Transferor" shall have the meaning provided in clause (iii) of Section
12.2(B).
"Units" shall have the meaning provided in Section 3.2(A).
Article 3. Capitalization.
3.1 Initial Capital Contributions. As of the effective
date hereof, the Partners have made contributions of cash to the Partnership,
and the amount of such cash contributions are reflected in the Capital Account
balance of each such Partner as set forth opposite such Partner's name on the
attached Schedule A.
3.2 Issuance and Conversion of Units.
A. The interest of a Partner in the Partnership is
referred to as being evidenced by one or more Units. A "Unit" is a unit
of Partnership Interest that, as more particularly provided for below
in Section 3.2(C), may be converted into either cash or one (1) common
share of beneficial interest in the Company (a "Common Share"). The
aggregate total of all Units outstanding as of the date of this
Agreement is [_________]. As of the date of this Agreement, each
Partner is deemed to hold Units as shown on Schedule A.
B. From time to time hereafter, subject to and in
accordance with the provisions of this Section 3.2(B), the General
Partner may (but shall not be obligated to) cause the Partnership to
issue additional Units in exchange for a Capital Contribution (which
may
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consist of either cash or property). The number of Units to be issued
in such case shall be determined by the General Partner in its sole
discretion.
C. Subject to the further provisions of this Section
3.2(C), the General Partner hereby grants to each Limited Partner
(other than the Initial Limited Partner) holding Units the right to
request an exchange of any or all of its Units for Common Shares, with
one Unit being exchangeable for one Common Share; provided, however,
any such exchange shall only be made with regard to whole Units.
(i) Such right may be exercised by a Limited
Partner at any time after the date specified in writing by the
General Partner as being applicable to the Units which are the
subject of such exchange at the time of issuance if such
Units, upon not less than ten (10) days' prior written notice
to the General Partner (the "Exchange Notice").
(ii) Upon receipt of such Exchange Notice, the
General Partner may, in its discretion, in lieu of exchanging
Units for Common Shares, cause the Partnership to pay to such
Limited Partner cash in an amount equal to the product arrived
at by multiplying (a) the number of Units requested to be
exchanged by such Limited Partner by (b) the Market Price,
with such payment to be made within ten (10) days of the
General Partner's receipt of the Limited Partner's Exchange
Notice as aforesaid.
(iii) In the event that the issuance of Common
Shares to the Exchanging LP would (a) result in any person
(other than Lend Lease Corporation Limited, a corporation
organized and existing under the laws of the State of New
South Wales, Australia and its subsidiaries and affiliates, so
long as Lend Lease Corporation Limited is publicly held)
owning, directly or indirectly, Common Shares in excess of
9.8% of the total number of Common Shares then outstanding;
(b) result in Common Shares being owned by fewer than 100
Persons (determined without reference to any rules of
attribution); (c) result in the Company being "closely held"
within the meaning of Section 856(h) of the Code; or (d) cause
the acquisition of Common Shares by the Exchanging LP to be
"integrated" with any other distribution of Common Shares for
purposes of complying with Federal or state securities laws;
then the General Partner must elect to make a cash payment.
(iv) If the General Partner does not elect to
make a cash payment it shall be obligated to exchange the
surrendered Units for Common Shares as provided above.
(v) The Company shall at all times reserve and
keep available out of its authorized but unissued Common
Shares, solely for the purpose of allowing the
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General Partner to effect the exchange of Units for Common
Shares, such number of Common Shares as shall from time to
time be sufficient to effect the conversion of all outstanding
Units not owned by the Xxxxxxxx Partners.
(vi) No Limited Partner shall, by virtue of being
the holder of one or more Units be deemed to be a shareholder
of or have any other interest in the Company.
(vii) In the event of any change in the
outstanding Common Shares of the Company or its successor by
reason of any share dividend, split, recapitalization, merger,
consolidation, combination, exchange of shares or other
similar corporate change other than the issuance of Rights, as
further described in Section 3.2(D) (a "Recapitalization"),
the number of Units held by each Partner shall be adjusted
upward or downward to equal such number of Common Shares of
the Company (or as applicable, the Common Shares or equivalent
class of securities of the successor thereto) as would have
been held by the Partner immediately following the
Recapitalization if such Partner had converted such Units
immediately prior to such Recapitalization.
(viii) The General Partner may assume the
Partnership's obligation to exchange Units for Common Shares.
In the event the General Partner assumes this obligation and
acquires Units in exchange for Common Shares, the General
Partner shall record the transfer on the books of the
Partnership so that the General Partner is thereupon the owner
and holder of such Units.
(ix) Notwithstanding the foregoing provisions of
this Section 3.2(C), a Limited Partner shall not have the
right to exchange Units for Common Shares if (a) the Company
would, as a result thereof, no longer qualify, or it would be
likely that the Company no longer would qualify, as a "real
estate investment trust" under the Code; or (b) such exchange
would constitute or be likely to constitute a violation of
applicable Federal or state securities laws or would violate
any applicable provisions of the organizational documents of
the General Partner or the Company (including, without
limitation, any restrictions on ownership of securities of the
Company set forth in the Articles of Incorporation or Bylaws
of the Company). In either such event, to the extent the
consequences described in (a) or (b) could be eliminated by
reasonable action of the Company without any material
detriment to the Company and at the expense of such Limited
Partner(s) requesting such exchange, the General Partner shall
take all such reasonable action to effect the exchange of
Units for Common Shares by such Limited Partner(s) as herein
provided.
D. In the event that a Limited Partner (the "Exchanging
LP") exercises its right to exchange any or all of its Units for Common
Shares under Section 3.2(C), and the General Partner does not elect to
make the cash payment to the Exchanging LP referenced in clauses
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(ii) and (iii) of such Section 3.2(C), and in the event that the
Company issues to all of its holders of Common Shares as of a certain
record date rights, options, warrants or convertible or exchangeable
securities entitling such shareholders to subscribe for or purchase
Common Shares or any other securities or property (collectively,
"Rights"), with the record date for such Rights issuance falling within
the period starting on the date that the General Partner receives the
Exchange Notice from the Exchanging LP and ending on the date
immediately preceding the date upon which the General Partner delivers
the Common Shares to the Exchanging LP in exchange for such Exchanging
LP's Units (the date upon which such exchange occurs being referred to
herein as the "Exchange Date"), which Rights shall not be distributed
before the Exchange Date, then the amount payable by the General
Partner to the Exchanging LP in exchange for its Units under Section
3.2(C) shall also include the Rights the Exchanging LP would have
received if it had been the owner of the Common Shares to be delivered
by the General Partner to the Exchanging LP prior to the record date
for the issuance of the Rights (as the same may be expressed for any
purpose hereunder in a number of Units or Common Shares as determined
by the General Partner in good faith).
3.3 Additional Funds.
A. No Partner shall be assessed or, except as otherwise
provided in this Agreement, required to contribute additional funds or
other property to the Partnership. Any additional funds or other
property required by the Partnership, as determined by the General
Partner in its sole discretion, may, at the option of the General
Partner and without an obligation to do so, be contributed by the
General Partner or any other Partner (provided such other Partner is
willing to do so and the General Partner consents thereto, each in its
sole and absolute discretion) as additional Capital Contributions. If,
and as, the General Partner or any other Partner makes additional
Capital Contributions to the Partnership, each such Partner shall
receive additional Units as provided for in Section 3.2(B) above. The
General Partner shall also have the right (but not the obligation) to
raise any additional funds required for the Partnership in accordance
with the provisions of Section 9.7(E) below and/or by causing the
Partnership to borrow the necessary funds from third parties on such
terms and conditions as the General Partner shall deem appropriate in
its sole discretion. If the General Partner elects to cause the
Partnership to borrow the additional funds, or if the Partnership
issues a guaranty, indemnity or similar undertaking in connection with
the indebtedness of the General Partner or Company as aforesaid, in any
such case one or more of the Partnership's assets may be encumbered to
secure the loan or undertaking. No Limited Partner shall have the right
to make additional Capital Contributions to the Partnership without the
prior written consent of the General Partner.
B. The Company shall have the option, but not the
obligation, to transfer, by loan or capital contribution, to one or
both of the Xxxxxxxx Partners an amount equal to all or a portion of
the net proceeds of any and all funds raised by or through the Company
through the issuance of Common Shares or other securities to, in turn,
be contributed by the Xxxxxxxx
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Partners to the Partnership as additional Capital Contributions; and,
in such event, the Xxxxxxxx Partners shall be issued additional Units
pursuant to Section 3.2(B) above.
3.4 Capital Accounts. A separate capital account
("Capital Account") shall be maintained for each Partner.
A. To each Partner's Capital Account there shall be
added such Partner's Capital Contributions and such Partner's
distributive share of Profits.
B. From each Partner's Capital Account there shall be
subtracted the amount of cash and the value (as determined by the
General Partner in its sole discretion) of any Partnership property
distributed to such Partner pursuant to any provision of this
Agreement, and such Partner's distributive share of Losses.
C. In the event all or a portion of a Partnership
Interest is transferred in accordance with the terms of this Agreement
(including a transfer of Units in exchange for Common Shares, pursuant
to Section 3.2(C)), the transferee shall succeed to the Capital Account
of the transferor to the extent it relates to the transferred
Partnership Interest.
3.5 Interest on and Return of Capital.
A. No Partner shall be entitled to any interest on its
Capital Account or on its Capital Contributions to the Partnership.
B. Except as expressly provided for in this Agreement,
no Partner shall have the right to demand or to receive the return of
all or any part of its Capital Contributions to the Partnership and
there shall be no priority of one Partner over the other as to the
return of Capital Contributions or withdrawals or distributions of
Profits and Losses. No Partner shall have the right to demand or
receive property other than cash in return for the Capital
Contributions of such Partner to the Partnership.
3.6 Negative Capital Accounts. Subject to the provisions
of any guarantee or other written agreement between a Partner and the
Partnership, no Partner shall be required to pay to the Partnership any deficit
or negative balance which may exist in its Capital Account.
3.7 Limitation on Contributions and Obligations of
Partners. Except as provided in Sections 3.1, 3.2 and 3.3 (or the provisions of
any guarantee or other written agreement between a Partner and the Partnership),
no Partner shall be required to make any additional advances or contributions to
or on behalf of the Partnership or to endorse any obligations of the
Partnership.
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Article 4. Principal Office. The principal office of the
Partnership shall be located at 0000 Xxxxxxxxx Xxxx, X.X. Xxxxx 000, Xxxxxxx,
Xxxxxxx 00000, or at such other place as the General Partner may designate after
giving written notice of such designation to the other Partners.
Article 5. Purpose and Powers of Partnership.
5.1 Purposes. The purposes of the Partnership shall be
any purpose that may be legally conducted by a limited partnership organized
pursuant to the Act, consistent with (a) satisfaction by the Company of the
requirements for being classified as a "real estate investment trust" under the
Code, unless the Company provides notice to the Partnership that it intends to
cease or has ceased to qualify as a "real estate investment trust," (b)
avoidance of any federal income tax or excise tax liability imposed by the Code
or Regulations, and (c) ensuring the Partnership shall not be classified as a
"publicly traded partnership" for purposes of Section 7704 of the Code, unless
the General Partner has determined that avoidance of such classification is no
longer prudent. The purposes of the Partnership include, but are not limited to,
the discharge of the role and function of Partnership as described in that
certain Form S-11 Registration Statement No. 333-42629 under the Securities Act
of 1933, as amended, filed February , 1998 on behalf of Xxxxxxxx Capital
Corporation.
5.2 Powers. The Partnership is empowered to do any and
all acts and things necessary, appropriate, proper, advisable, incidental to or
convenient for the furtherance and accomplishment of the purposes described
herein and for the protection and benefit of the Partnership; provided, however,
that the Partnership shall not take, or refrain from taking, any action which,
in the judgment of the General Partner, (a) could adversely affect the ability
of the Company to continue to qualify as a "real estate investment trust" under
the Code, unless the Company provides notice to the Partnership that it intends
to cease or has ceased to qualify as a "real estate investment trust," (b) could
subject the Company to any additional taxes under Section 857 or Section 4981 of
the Code, (c) could result in the Partnership classification as a "publicly
traded partnership" for purposes under the Code, unless the General Partner has
determined that avoidance of such classification is no longer prudent, or (d)
could violate any law or regulation of any governmental body or agency having
jurisdiction over the Partnership, the Company or their securities, unless such
action (or inaction) shall have been specifically consented to by the General
Partner in writing.
Article 6. Term. The term of the Partnership shall continue
until the Partnership is terminated upon the occurrence of an event described in
Section 14.1 below.
Article 7. Allocation of Profits and Losses. Profits and Losses
for any fiscal year shall be allocated among the Partners in proportion to their
respective Percentage Interests.
Article 8. Cash Available for Distribution.
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8.1 Cash Flow. As used in this Agreement, "Cash Flow"
shall mean and be defined as all cash receipts of the Partnership from whatever
source (but excluding the proceeds of any Capital Contributions to the
Partnership) during the period in question in excess of all items of Partnership
expense (other than non-cash expenses such as depreciation) and other cash needs
of the Partnership, including, without limitation, amounts paid by the
Partnership as principal on debts and advances, during such period, capital
expenditures and any reserves (as determined by the General Partner) established
or increased during such period. In the discretion of the General Partner,
reserves may include cash held for future acquisitions. Cash Flow shall be
distributed to or for the benefit of the Partners of record as of the applicable
Record Date not less frequently than quarterly and shall be distributed pro rata
in proportion to their respective Percentage Interests.
8.2 Consent to Allocations and Distributions. Each of the
Partners hereby consents to the allocations and distributions provided for in
this Agreement.
8.3 Right to Limit Distributions. The right of any
Partner to receive distributions of any nature pursuant to the terms of this
Agreement shall be subject to the terms of any agreement between such Partner
and the Partnership limiting, restricting or providing rights of set-off with
respect to such distributions.
Article 9. Management of Partnership.
9.1 General Partner. The General Partner shall be the
sole manager of the Partnership business, and shall have the right and power to
make all decisions and take any and every action with respect to the property,
business and affairs of the Partnership and shall have all the rights, power and
authority generally conferred by law, or necessary, advisable or consistent with
accomplishing the purposes of the Partnership. The General Partner shall have
full, exclusive and complete responsibility and discretion in the management and
control of the Partnership. All decisions or actions made or taken by the
General Partner hereunder shall be binding upon all of the Partners and the
Partnership. The powers of the General Partner to manage the Partnership
business shall include, without limitation, the power and authority to, directly
or indirectly:
A. Effect any of the purposes of the Partnership.
B. Perform any and all acts necessary or appropriate to
the operation of the Partnership's assets, including, but not limited
to, preparing, negotiating, executing and delivering leases and rental
agreements with regard to real and personal property owned by the
Partnership, preparing applications for rezoning, preparing objections
to rezoning of other property and establishing bank accounts in the
name of the Partnership.
C. Improve, renovate and/or perform construction
activities with regard to the properties owned by the Partnership and
to retain such contractors, subcontractors and other persons or
entities as may be required in connection with such activities.
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D. Procure and maintain such insurance as may be
available in such amounts and covering such risks as are deemed
appropriate by the General Partner.
E. Take and hold all real, personal and mixed property
of the Partnership in the name of the Partnership or in the name of a
nominee.
F. Negotiate, execute and deliver agreements on behalf
of and in the name of the Partnership.
G. Borrow money (whether on a secured or unsecured
basis), finance and refinance the assets of the Partnership or any part
thereof or interest therein, and in connection therewith, issue notes,
bonds, securities and other undertakings and evidences of indebtedness
and documents related thereto (including, without limitation, guaranty,
indemnities and similar undertakings to support loans obtained or debt
securities issued by the Company).
H. Coordinate all legal, accounting and clerical
functions of the Partnership and of the Company as such functions of
the Company relate to the Partnership and employ such accountants,
lawyers, property managers, leasing agents and other management or
service personnel as may from time to time be required to carry on the
business of the Partnership and the business of the Company as such
business relates to the Partnership.
I. Acquire or commit to acquire any assets; encumber,
sell, assign, transfer, ground lease or otherwise dispose of any or all
of the assets of the Partnership, or any part thereof or interest
therein and maintain and administer the portfolio of assets.
J. Organize one or more partnerships, corporations,
limited liability companies or other business entities which are
controlled, directly or indirectly, by the Partnership and make any
capital contributions (in cash or in kind) required pursuant to the
organizational documents or subscription agreements relating to any
such partnerships, corporations, limited liability companies or other
business entities.
K. Establish the date (the "Record Date") for the
purpose of making any proper determination in connection with, but not
limited to, the following matters: (i) which Partners are entitled to
receive distributions, (ii) consent to any matter for which the consent
of Partners is permitted or required under any provision hereof, or
(iii) otherwise when Partners are allocated rights hereunder.
L. Serve as consultant with respect to formulation of
investment criteria and preparation of policy guidelines by the Board
of Directors of the Company as such criteria and guidelines relate to
the Partnership.
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M. To the extent not otherwise subject to an agreement
executed by the Company, monitor and provide, on an ongoing basis,
price information and other data obtained from certain nationally
recognized dealers that maintain markets in assets identified by the
Board of Directors of the Company from time to time, and provide data
and advice to the Board of Directors of the Company in connection with
the identification of such dealers.
N. Provide executive and administrative personnel with
office space and office services required in rendering services to the
Company as such services relate to the Partnership.
O. Communicate on behalf of the Company with the holders
of any equity or debt securities of the Company as required to satisfy
the reporting and other requirements of any governmental bodies or
agencies or trading markets and to maintain effective relations with
such holders.
P. Prepare on behalf of the Company all reports that are
required to be filed with the Securities and Exchange Commission as
such reports relate to the Partnership.
Q. Counsel the Company in connection with policy
decisions to be made by the Board of Directors as such decisions relate
to the Partnership.
R. Cooperate in the timely preparation and filing of all
federal, state and local income tax, real estate tax and information
returns for the Company and payment of any taxes thereunder due on
behalf of Company to the extent such taxes relate to the existence and
operation of the Partnership and, to the extent the Company deems to be
appropriate, liaison with tax consultants and legal counsel regarding
all tax planning and structuring matters for the Company as such
matters relate to the Partnership and perform all administrative work
in paying taxes owed, and, where appropriate, seeking refunds of taxes
paid, as applicable.
S. Operate any business normal or customary for the
owner or investor of assets of the type held by the Partnership.
9.2 Limitations on Power and Authority of Partners.
Notwithstanding the powers of the General Partner set forth in Section 9.1
above, the General Partner shall not have the right or power to do any of the
following unless any such action is approved by the minimum percentage of the
Limited Partners required under the Act:
(a) Any act in contravention of this Agreement,
or any amendment hereto.
(b) Dissolve the Partnership, except that an
action which may lead to dissolution of the Partnership shall be
permitted without the consent of the minimum
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percentage of Limited Partners required under the Act, if it is
otherwise permitted to be taken hereunder without such consent of the
Limited Partners.
(c) Cause the Partnership to merge into another
entity if the Partnership is not the surviving entity.
(d) Excluding transactions permitted hereunder,
sell, exchange, transfer, or otherwise dispose of all or substantially
all of the assets of the Partnership in a single transaction or a
series of related transactions (including by way of merger,
consolidation, or other combination with any other Person); being
understood, however, that a sale of any or all of the assets of the
Partnership, including, without limitation, sales resulting in the
liquidation of the partnership, may be an ordinary part of the
Partnership's business and affairs as specifically permitted herein.
9.3 Limited Partners. The Limited Partners shall have no
right or authority in their capacity as Limited Partners to act for or to bind
the Partnership and no Limited Partner shall participate in, transact, conduct
or control the Partnership's management activities, decisions, affairs or
business except as required by applicable law.
9.4 Liability of General Partner. The General Partner
shall not be liable or accountable, in damages or otherwise, to the Partnership
or to any other Partner for any error of judgment or for any mistakes of fact or
law or for anything which it may do or refrain from doing hereafter in
connection with the business and affairs of the Partnership except (i) in the
case of fraud, willful misconduct (such as an intentional breach of fiduciary
duty or an intentional breach of this Agreement) or gross negligence, and (ii)
for other breaches of this Agreement, but the liability of the General Partner
under this clause (ii) shall be limited to its interest in the Partnership as
more particularly provided for in Section 9.8. The General Partner shall not
have any personal liability for the return of any Limited Partner's Capital
Contributions.
9.5 Indemnity. The Partnership shall indemnify and shall
hold the General Partner (and the officers and directors thereof) harmless from
any liability, loss, cost or damage, including, without limitation, reasonable
legal fees and court costs incurred by it by reason of anything it may do or
refrain from doing hereafter for and on behalf of the Partnership or in
connection with its business or affairs; provided, however, that the Partnership
shall not be required to indemnify the General Partner (or any officer or
director thereof) for any liability, loss, cost or damage which it might incur
as a result of its fraud, willful misconduct or gross negligence in the
performance of its duties hereunder. In addition, the Company shall be entitled
to reimbursement from the Partnership for any amounts paid by it in satisfaction
of indemnification obligations owed by the Company to present or former
officers, managers or directors of the Company or its predecessors, as provided
for in or pursuant to the Articles of Incorporation and Bylaws of the Company.
The right of indemnification set forth in this Section 9.5 shall be in addition
to any rights to which the person or entity seeking indemnification may
otherwise be entitled and shall inure to the benefit of the successors and
assigns of any such person or entity. No Partner shall be personally
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liable with respect to any claim for indemnification pursuant to this Section
9.5, but such claim shall be satisfied solely out of assets of the Partnership.
9.6 Other Activities of Partners and Agreements with
Related Parties. Nothing contained in this Agreement shall prevent or prohibit
the General Partner or any employee, officer, director, agent, shareholder or
affiliate of the General Partner from entering into, engaging in or conducting
any other activity or performing for a fee any service including (without
limiting the generality of the foregoing) engaging in any business dealing with
real property of any type or location, including, without limitation, property
of a type similar to those properties owned by the Partnership, its subsidiaries
or any other Person in which the Partnership has equity investment; acting as a
director, officer or employee of any corporation, as a trustee of any trust, as
a general partner of any partnership, or as an administrative official of any
other business entity; or receiving compensation for services to, or
participating in profits derived from, the investments of any such corporation,
trust, partnership or other entity, regardless of whether such activities are
competitive, directly or indirectly, with the Partnership. Nothing herein shall
require the General Partner or any employee, agent, shareholder or affiliate
thereof to offer any interest in such activities or any particular opportunity
to the Partnership or any Partner, and the partnership relationship established
hereby in or to such other activities or to the income or proceeds derived
therefrom. The pursuit of such activities, even if competitive with the business
of the Partnership (including, without limitation, causing tenants to transfer
from one of the Partnership's properties to other properties in which the
General Partner has an interest, directly or indirectly, without compensation to
the Partnership, or taking other actions for the benefit of the General Partner
or affiliates of the General Partner that are detrimental to the Partnership),
shall not be deemed wrongful or improper. Except as may otherwise be agreed to
in writing, the Company, each Limited Partner and all of their respective
affiliates, shall be free to engage in, to conduct or to participate in any
business or activity whatsoever, including, without limitation, the acquisition,
development, management and exploitation of real and personal property (other
than property of the Partnership), without any accountability, liability or
obligation whatsoever to the Partnership or to any other Partner, even if such
business or activity competes with or is enhanced by the business of the
Partnership. The General Partner, in the exercise of its power and authority
under this Agreement, may contract and otherwise deal with or otherwise obligate
the Partnership to entities in which the General Partner or the Company or any
one or more of the managers, officers, directors or shareholders of the General
Partner or the Company, as applicable, may have an ownership or other financial
interest, whether direct or indirect.
9.7 Other Matters Concerning the General Partner.
A. The General Partner shall be protected in relying,
acting or refraining from acting on any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent,
order, bond, debenture or other paper or document believed by it to be
genuine and to have been executed or presented by the proper party or
parties.
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B. The General Partner may exercise any of the powers
granted or perform any of the duties imposed by this Agreement either
directly or through agents. The General Partner may consult with
counsel, accountants, appraisers, management consultants, investment
bankers and other consultants selected by it, each of whom may serve as
consultants for the Partnership. An opinion by any consultant on a
matter which the General Partner believes to be within its professional
or expert competence shall be full and complete protection as to any
action taken or omitted by the General Partner based on the opinion and
actions taken or omitted in good faith. The General Partner shall not
be responsible for the misconduct, negligence, acts or omissions of any
consultant or contractor of the Partnership or of the General Partner,
and shall assume no obligation other than to use due care in the
selection of all consultants and contractors.
C. No mortgagee, grantee, creditor or any other person
dealing with the Partnership shall be required to investigate the
authority of the General Partner or secure the approval of or
confirmation by any Limited Partner of any act of the General Partner
in connection with the conduct of the Partnership business.
D. The General Partner may retain such persons or
entities as it shall determine (including the General Partner or any
entity in which the General Partner shall have an interest or with
which it is affiliated) to provide services to or on behalf of the
Partnership. The General Partner shall be entitled to reimbursement
from the Partnership for its out-of-pocket expenses (including, without
limitation, amounts paid or payable to the General Partner or any
entity in which the General Partner shall have an interest or with
which it is affiliated) incurred in connection with Partnership
business. Such expenses shall be deemed to include without limitation
those expenses required in connection with the administration of the
Partnership such as the maintenance of Partnership books and records,
management of the Partnership property and assets and preparation of
information respecting the Partnership needed by the Partners in the
preparation of their individual tax returns.
E. The General Partner may loan to the Partnership the
net proceeds of loans obtained or debt securities issued by the Company
so long as the terms of such loan to the Partnership are substantially
equivalent to the corresponding loan obtained or debt securities issued
by the Company. The General Partner may also loan to the Partnership
the net proceeds of loans obtained by the General Partner so long as
the terms of such loan to the Partnership are substantially equivalent
to the corresponding loan obtained by the General Partner.
9.8 Partner Exculpation. Except for fraud, willful
misconduct and gross negligence, no Partner shall have any personal liability
whatever, whether to the Partnership or to any other Partner, for the debts or
liabilities of the Partnership or its obligations hereunder, and the full
recourse of any Partner shall be limited to the interest of that Partner in the
Partnership. To the fullest extent permitted by law, no manager, officer,
director or shareholder of the General Partner shall be liable to the
Partnership for money damages except for (i) active and deliberate dishonesty
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established by a final judgment; or (ii) actual receipt of an improper benefit
or profit in money, property or services. Without limitation of the foregoing,
and except for fraud, willful misconduct and gross negligence, no property or
assets of any Partner, other than its interest in the Partnership, shall be
subject to levy, execution or other enforcement procedures for the satisfaction
of any judgment (or other judicial process) in favor of any other Partners and
arising out of or in connection with this Agreement. This Agreement is executed
by the managers, members, officers or partners of each Partner solely as
managers, members, officers or partners of the same and not in their own
individual capacities. No advisor, manager, member, director, officer, partner,
employee, beneficiary, shareholder, participant or agent of any Partner (or of
any partner of a Partner) shall be personally liable in any matter or to any
extent under or in connection with this Agreement, and the Partnership, each
Partner and their respective successors and assigns shall look solely to the
interest of the other Partners in the Partnership for the payment of any claim
or for any performance hereunder.
9.9 Responsibility for Ownership, Operation,
Organizational and Unit Issuance Expense. The Partnership shall be responsible
for expenses relating to the Partnership's ownership and operation of its assets
or for the benefit of the Partnership and shall reimburse the General Partner or
the Company, as applicable, on a monthly basis, or such other basis as the
General Partner may determine in its sole and absolute discretion, for all
expenses incurred relating to the Partnership's ownership and operation of its
assets or for the benefit of the Partnership; provided, that the amount of any
such reimbursement shall be reduced by any interest earned by it as required by
Article 10. Such reimbursements shall be in addition to any reimbursement to the
General Partner as a result of indemnification pursuant to Section 9.5. The
General Partner shall determine in good faith the amount of expenses incurred by
it relating to the operation of, or that inure to the benefit of, the
Partnership. In the event that certain expenses are incurred for the benefit of
the Partnership and other Persons (including the General Partner or the
Company), such expenses will be allocated to the Partnership and such other
Persons in such a manner as the General Partner deems fair and reasonable. The
Partnership shall be responsible for and shall pay all expenses incurred
relating to the organization of the Partnership. In the event that certain
expenses relating to the organization of the General Partner and the Company are
incurred for the benefit of the Partnership, such expenses will be allocated to
the Partnership in such a manner as the General Partner deems fair and
reasonable. The General Partner and the Company shall be reimbursed for all
expenses either incurs relating to any issuance of Units pursuant to Section
3.2.
Article 10. Banking. The funds of the Partnership shall be kept
in accounts designated by the General Partner and all withdrawals therefrom
shall be made on such signature or signatures as shall be designated by the
General Partner.
Article 11. Accounting.
11.1 Fiscal Year. The fiscal year and taxable year of the
Partnership (the "Fiscal Year") shall end on the last day of December of each
year, unless another fiscal year end in selected by the General Partner.
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11.2 Books of Account. The Partnership books of account
shall be maintained at the principal office designated in Article 4 or at such
other locations and by such person or persons as may be designated by the
General Partner. The Partnership shall pay the expense of maintaining its books
of account. Each Partner shall have, during reasonable business hours and upon
reasonable prior notice, access to the books of the Partnership and in addition,
at its expense, shall have the right to copy such books. The General Partner, at
the expense of the Partnership, shall cause to be prepared and distributed to
the Partners annual financial data sufficient to reflect the status and
operations of the Partnership and its assets and to enable each Partner to file
its federal income tax return.
11.3 Method of Accounting. The Partnership books of
account shall be maintained and kept, and its income, gains, losses and
deductions shall be accounted for, in accordance with sound principles of
accounting consistently applied, or such other method of accounting as may be
adopted hereafter by the General Partner. All elections and options available to
the Partnership for Federal or state income tax purposes shall be taken or
rejected by the Partnership in the sole discretion of the General Partner.
11.4 Tax Matters Partner. The General Partner is hereby
designated the Tax Matters Partner (hereinafter referred to as the "TMP") of the
Partnership and shall have all rights and obligations of the TMP under the Code.
As TMP, the General Partner shall have the authority to handle tax audits and to
make tax elections under the Code on behalf of the Partnership.
Article 12. Transfers of Partnership Interests.
12.1 General Partner. The General Partner may not
voluntarily withdraw from the Partnership or transfer its interest in the
Partnership unless the transaction pursuant to which such withdrawal or transfer
occurs results in the receipt by the Limited Partners of Common Shares or cash
in an amount equal to the amount such Partners would have received had they
exercised the right to request an exchange of their Units for Common Shares
pursuant to Section 3.2(C) hereto immediately prior to such transaction.
12.2 Limited Partner.
A. Any Limited Partner or substituted Limited Partner
may not, without the prior written consent of the General Partner
(which consent may be given or withheld in the sole discretion of the
General Partner), sell, assign, distribute or otherwise transfer (a
"Transfer") all or any part of his interest in the Partnership, except
by (i) operation of law, testamentary disposition, gift (outright or in
trust) or by sale, in each case to or for the benefit of his parent(s),
spouse or descendants; (ii) pledges or other collateral transfers
effected by a Limited Partner to secure the repayment of a loan or
other obligation, provided however, that each such pledgee shall agree
in writing, concurrent with such pledge or other collateral transfer,
to (a) subordinate its rights with respect to the pledged interest to
any and all rights granted by the pledging Limited Partner to the
Partnership, whether or not such rights
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constitute perfected security interests in favor of the Partnership,
including, without limitation, any rights to withhold, restrict or
offset distributions in respect of such pledged interest under the
terms of any agreement between the Partnership and the pledging Limited
Partner, and (b) to defer the exercise of its rights as a secured
creditor to realize upon the collateral in the case of an event of
default until the expiration of any applicable "lock-up" period under
the terms of any agreement between the Partnership and the pledging
Limited Partner; (iii) the exchange of Units for shares of beneficial
interest of the Company, pursuant to Section 3.2(C) above; and (iv) the
distribution of Units by a Limited Partner to any of its direct or
indirect constituent partners or owners. Notwithstanding the foregoing,
each such transfer shall be subject to compliance with restrictions on
transferability contained in the Articles of Incorporation and Bylaws
of the Company and/or any applicable agreement executed by the
transferor as well as compliance with applicable Federal and state
securities laws. The General Partner reserves the right to require an
opinion of counsel regarding such matters in form and substance
reasonably acceptable to the General Partner as a condition to any such
Transfer. The conversion of a Unit into a Common Share shall not
constitute a Transfer. A Limited Partner shall notify the General
Partner of any Transfer of beneficial interest or other interest which
occurs without a transfer of record ownership, as well as any pledge or
other collateral transfer. No part of the interest of a Limited Partner
shall be subject to the claims of any creditor, any spouse for alimony
or support or legal process, and may not be voluntarily or
involuntarily alienated or encumbered except as may be specifically
provided for in this Agreement. A Limited Partner shall not be
permitted to retire or withdraw from the Partnership except as
expressly permitted by this Agreement.
B. An assignee, legatee, distributee or other transferee
(whether by conveyance, operation of law or otherwise), including any
pledgee upon realization of its rights as a secured creditor, (a
"Transferee") of all or any portion of a Limited Partner's interest in
the Partnership shall be entitled to receive Profits, Losses and
distributions hereunder attributable to such interest acquired by
reason of such Transfer, from and after the effective date of the
Transfer of such interest; provided, however, anything in this
Agreement to the contrary notwithstanding, (i) no Transfer by a Limited
Partner shall be effective until such Transfer has been consented to by
the General Partner; (ii) without the prior written consent of the
General Partner, no Transferee shall be considered a substituted
Limited Partner except as provided in Section 12.2(A)(i) and (iv) and,
in any event, until such Transferee shall have agreed to be bound by
the terms of this Agreement and shall have executed a counterpart
hereof; (iii) the Partnership and the General Partner shall be entitled
to treat the Limited Partner making such a Transfer (the "Transferor")
of such interest as the absolute owner thereof in all respects, and
shall incur no liability for the allocation of Profits and Losses or
distributions which are made to such Transferor until such time as the
written instrument of transfer has been received by the General Partner
and the "effective date" of the Transfer has passed; and (iv) the
General Partner shall have the right to require any such Transferor to
exchange the Units to which such interest relates for Common Shares or
cash, pursuant to Section 3.2(C) above. The "effective date" of any
transfer shall be the last day of the month
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set forth on the written instrument of transfer or such other date
consented to in writing by the General Partner as the "effective date."
C. Notwithstanding anything to the contrary contained in
this Section 12.2, (i) in the event that a Limited Partner pursuant to
the dissolution and liquidation of such Limited Partner distributes all
or any portion of its interest in the Partnership, the partners,
shareholders or members (as the case may be) in such Limited Partner
receiving such interest shall become substituted Limited Partners, and
shall (upon agreeing to be bound by the terms of this Agreement)
succeed to the rights, interests and obligations of such Limited
Partner in the Partnership, in proportion to their respective interests
in such Limited Partner; and (ii) no Transfer shall be effective to the
extent that such Transfer would, in the opinion of the General Partner
(a) by treating the interest in the Partnership so transferred as if it
had been exchanged for Common Shares in accordance with Section 3.2(C)
above, violate the limitations on ownership of Common Shares contained
in the Articles of Incorporation and/or Bylaws of the Company, or (b)
violate any Federal or state securities laws.
12.3 Admission Adjustments. The General Partner shall,
when necessary, cause this Agreement to be amended from time to time (and shall
cause Schedule A to be revised), to reflect the admission or withdrawal of
Partners, and the issuance, conversion and redemption of any Units (including
the corresponding adjustment to Percentage Interests).
Article 13. Admission of New Partners. The General Partner shall
admit to the Partnership as Limited Partners those Persons who are not already
Partners and who receive Units in accordance with the provisions of this
Agreement.
Article 14. Termination, Liquidation and Dissolution of
Partnership.
14.1 Termination Events. The Partnership shall be
dissolved and its affairs wound up in the manner hereinafter provided upon the
earliest to occur of the following events:
A. December 31, 2098, unless the General Partner, in its
sole and absolute discretion, extends such date by written notice to
the Limited Partners given prior to such date;
B. the sale of all or substantially all of the assets of
the Partnership;
C. the agreement of those Partners holding at least
[_______] percent [(___%)] of the Percentage Interests of all of the
Partners, determining that the Partnership should be dissolved;
D. subject to Section 14.4 below, the entry of a final
judgment, order or decree of a court of competent jurisdiction
adjudicating as bankrupt either the Partnership or the
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General Partner, and the expiration without appeal of the period, if
any, allowed by applicable by law to appeal therefrom; or
E. the dissolution of the Partnership by operation of
law.
14.2 Method of Liquidation. Upon the happening of any of
the events specified in Section 14.1 above, the General Partner (or if there be
no General Partner, a liquidating trustee selected by a Majority-in-Interest of
the Limited Partners) shall immediately commence to wind up the Partnership's
affairs and shall liquidate the assets of the Partnership as promptly as
possible, unless the General Partner, or the liquidating trustee, shall
determine that an immediate sale of Partnership assets would cause undue loss to
the Partnership, in which event the liquidation may be deferred for a reasonable
time. The Partners shall continue to share Cash Flow, Profits and Losses during
the period of liquidation in the same proportions as before dissolution. The
proceeds from liquidation of the Partnership, including repayment of any debts
of Partners to the Partnership, shall be applied in the following order:
A. Debts of the Partnership, including repayments of
principal and interest on loans and advances made by the General
Partner pursuant to Sections 3.3 and/or 9.7 above; then
B. to the establishment of any reserves deemed necessary
or appropriate by the General Partner, or by the person(s) winding up
the affairs of the Partnership in the event there is no remaining
General Partner of the Partnership, for any contingent or unforeseen
liabilities or obligations of the Partnership. Such reserves
established hereunder shall be held for the purpose of paying any such
contingent or unforeseen liabilities or obligations and, at the
expiration of such period as the General Partner, or such person(s)
deems advisable, the balance of such reserves shall be distributed in
the manner provided hereinafter in this Section 14.2 as though such
reserves had been distributed contemporaneously with the other funds
distributed hereunder; and then
C. to the Partners in accordance with their respective
Capital Account balances.
14.3 Date of Termination. The Partnership shall be
terminated when all notes received in connection with such disposition have been
paid and all of the cash or property available for application and distribution
under Section 14.2 above (including reserves) shall have been applied and
distributed in accordance therewith.
14.4 Reconstitution Upon Bankruptcy.
A. Notwithstanding any dissolution of the Partnership
under Section 14.1(D) above, if the Partnership is reconstituted as set forth in
this Section 14.4, then the business of the Partnership shall be continued with
the Partnership's property and the Partnership's assets shall not be liquidated.
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B. If the Partnership is dissolved by reason of the
bankruptcy of the General Partner, a successor general partner may be
admitted within 90 days after the dissolution, effective as of the date
of dissolution, as the General Partner hereunder, with the written
consent of a Majority-in-Interest of the Limited Partners. Upon the
admission of such successor general partner, without any further
consent or approval of any other Partner, the Partnership shall be
reconstituted as a successor limited partnership.
C. If the Partnership is dissolved by reason of the
bankruptcy of the Partnership in a proceeding for the reorganization
(and not the liquidation) of the Partnership, then, with the consent of
the General Partner and a Majority-in-Interest of Limited Partners, the
Partnership may be reconstituted within 90 days after dissolution,
effective as of the date of dissolution, whereupon the Partnership
shall be reconstituted as a successor limited partnership.
D. The successor limited partnership reconstituted in
accordance with the foregoing provisions of this Section 14.4 shall
continue the business of the Partnership with the Partnership's
property. The Percentage Interests of the Partners in the successor
limited partnership shall be in proportion to their respective
Percentage Interests in the dissolved Partnership. Such successor
limited partnership shall be governed by the terms and provisions of
this Agreement and references in this Agreement to the Partnership or
to the Partners or their rights and obligations shall be understood to
comprehend such successor limited partnership and the Partners thereof
and their rights and obligations.
14.5 Death, Legal Incompetency, Etc. of a Limited Partner.
The death, legal incompetency, insolvency, dissolution or bankruptcy of a
Limited Partner shall not dissolve or terminate the Partnership. Upon the death
or incapacity of an individual Limited Partner, such individual Limited
Partner's interest in the Partnership shall be transferred either by will, the
laws of intestacy or otherwise to the legal representative or successor of such
individual Limited Partner.
Article 15. Power of Attorney. Each Limited Partner hereby
irrevocably constitutes and appoints the General Partner, with full power of
substitution, its true and lawful attorney, for him and in his name, place and
xxxxx and for his use and benefit, to sign, swear to, acknowledge, file and
record:
(i) this Agreement, and subject to Article 16
below, amendments to this Agreement;
(ii) any certificates, instruments and documents
(including assumed and fictitious name certificates) as may be
required by, or may be appropriate under, the laws of the
State of Georgia or any other State or jurisdiction in which
the Partnership is doing or intends to do business, in order
to discharge the purposes of
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the Partnership or otherwise in connection with the use of the
name or names used by the Partnership;
(iii) any other instrument which may be required
to be filed or recorded by the Partnership on behalf of the
Partners under the laws of any State by any governmental
agency in order for the Partnership to conduct its business;
(iv) any documents which may be required to
effect the continuation of the Partnership, the admission of a
substitute or additional Partner, the dissolution and
termination of the Partnership or the amendment and
restatement of Schedule A, provided such continuation,
admission, dissolution and termination or amendment and
restatement of Schedule A, is not in violation of any
provision of this Agreement; and
(v) any documents which may be required or
desirable to have the General Partner appointed, and act as,
the "Tax Matters Partner" as described in the Code.
The foregoing grant of authority is a special power of attorney coupled with an
interest, is irrevocable and shall survive the death or incapacity of any
individual Limited Partner, and shall survive the delivery of any assignment by
a Limited Partner of the whole or any portion of his interest in the
Partnership.
Article 16. Amendment of Agreement.
A. Each Limited Partner, by his execution of or joinder
of this Agreement, hereby irrevocably appoints the General Partner with
power of substitution, as his true and lawful attorney coupled with an
interest, in his name, place and xxxxx to amend this Agreement in any
respect other than:
(i) to enlarge the obligation of any Partner to
make contributions to the capital of the Partnership; or
(ii) except as otherwise provided for in this
Agreement or as required by law, to modify the allocation of
Profits or Losses or distributions among the Partners as
provided for in Articles 7 and 8 above, respectively; or
(iii) to amend Article 1 or Sections 3.2, 3.7,
9.2, or 12; or
(iv) to amend this Article 16.
B. With respect to amendments regarding Sections
16(A)(ii) or 16(A)(iii), this Agreement may be amended with the written
consent of the General Partner and those
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Limited Partners holding not less than 67% of the aggregate of
Percentage Interests held by all Limited Partners.
C. With respect to amendments regarding Section
16(A)(i), this Agreement may be amended only with the written consent
of the General Partner and any other Partner adversely affected by such
amendment. With respect to amendments regarding Section 16(A)(iv), this
Agreement may be amended only with the written consent of all Partners.
Article 17. Miscellaneous.
17.1 Notices. Any notice, election or other communication
provided for or required by this Agreement shall be in writing and shall be
deemed to have been given when delivered by hand or by telecopy or other
facsimile transmission, the first business day after sent by overnight courier
(such as Federal Express), or on the second business day after deposit in the
Untied States Mail, certified or registered, return receipt requested, postage
prepaid, properly addressed to the Partner to whom such notice is intended to be
given at the address for the Partner set forth on Schedule A of this Agreement,
or at such other address as such person may have previously furnished in writing
to the Partnership and each Partner with copies to:
Xxxxxxxx Investments, L.P.
c/o ERE Yarmouth, Inc.
0000 Xxxxxxxxx Xxxx, X.X.
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: General Counsel
17.2 Modifications. Except as otherwise provided in this
Agreement, no change or modification of this Agreement, nor any waiver of any
term or condition in the future, shall be valid or binding upon a Partner unless
such change or modification shall be in writing and signed by such Partner.
17.3 Successors and Assigns. Any person acquiring or
claiming an interest in the Partnership, in any manner whatsoever, shall be
subject to and bound by all of the terms, conditions and obligations of this
Agreement to which his predecessor-in-interest was subject or bound, without
regard to whether such a person has executed a counterpart hereof or any other
document contemplated hereby. No person, including the legal representative,
heir or legatee of a deceased Partner, shall have any rights or obligations
greater than those set forth in this Agreement, and no person shall acquire an
interest in the Partnership or become a Partner thereof except as expressly
permitted by and pursuant to the terms of this Agreement. Subject to the
foregoing, and the provisions of Article 12 above, this Agreement shall be
binding upon and inure to the benefit of the Partners and their respective
successors, assigns, heirs, legal representatives, executors and administrators.
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17.4 Duplicate Originals. For the convenience of the
Partners, any number of counterparts hereof may be executed, and each such
counterpart shall be deemed to be an original instrument, and all of which taken
together shall constitute one agreement.
17.5 Construction. The titles of the Articles, Sections
and subsections herein have been inserted as a matter of convenience of
reference only and shall not control or affect the meaning or construction of
any of the terms or provisions herein.
17.6 Governing Law. This Agreement shall be governed by
the laws of the State of Georgia. Except to the extent the Act is inconsistent
with the provisions of this Agreement, the provisions of such Act shall apply to
the Partnership.
17.7 Other Instruments. The parties hereto covenant and
agree that they will execute such other and further instruments and documents
as, in opinion of the General Partner, are or may become necessary or desirable
to effectuate and carry out the Partnership as provided for by this Agreement.
17.8 General Partner with Interest as Limited Partner. If
the General Partner ever has an interest as a Limited Partner in the
Partnership, the General Partner shall, with respect to such interest, enjoy all
of the rights and be subject to all of the obligations and duties of a Limited
Partner.
17.9 Legal Construction. In case any one or more of the
provisions contained in this Agreement shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision hereof and this Agreement
shall be construed as if such invalid, illegal or unenforceable provision had
never been contained herein.
17.10 Gender. Whenever the context shall so require, all
words herein in any gender shall be deemed to include the masculine, feminine or
neuter gender, all singular words shall include the plural, and all plural words
shall include the singular.
17.11 Prior Agreements Superseded. This Agreement
supersedes any prior understandings or written or oral agreements amongst the
Partners, or any of them, respecting the within subject matter and contains the
entire understanding amongst the Partners with respect thereto; provided,
however, that the following joinders and/or addendums shall be deemed to be
incorporated herein and shall be deemed to be part of this Agreement: Schedule
A.
17.12 No Third Party Beneficiary. The terms and provisions
of this Agreement are for the exclusive use and benefit of the General Partner
and the Limited Partners and shall not inure to the benefit of any other person
or entity.
17.13 Purchase for Investment. Each Partner represents,
warrants and agrees that it has acquired and continues to hold its interest in
the Partnership for its own account for investment
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only and not for the purpose of, or with a view toward, the resale or
distribution of all or any part thereof, nor with a view toward selling or
otherwise distributing such interest or any part thereof at any particular time
or under any predetermined circumstances. Each Partner further represents and
warrants that it is a sophisticated investor, able and accustomed to handling
sophisticated financial matters for itself, particularly real estate
investments, and that it has a sufficiently high net worth that it does not
anticipate a need for the funds it has invested in the Partnership in what it
understands to be a highly speculative and illiquid investment.
17.14 Waiver. No consent or waiver, express or implied, by
any Partner to or of any breach of default by any other Partner in the
performance by such other Partner of its obligations hereunder shall be deemed
or construed to be a consent to or waiver of any other breach or default in the
performance by such other Partner of the same or any other obligations of such
Partner hereunder. Failure on the part of any Partner to complain of any act or
failure to act on the part of any other Partner or to declare any other Partner
in default, irrespective of how long such failure continues, shall not
constitute a waiver by such Partner or its rights hereunder.
17.15 Time of Essence. Time is hereby expressly made of the
essence with respect to the performance by the parties of their respective
obligations under this Agreement.
17.16 Counterparts. This Agreement may be executed in one
or more counterparts which, when taken together, shall constitute but one
original.
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IN WITNESS WHEREOF, this Agreement has been executed under seal as of
the day and year first above written by the General Partner and the undersigned
Limited Partners and has been consented to by Xxxxxxxx Capital Corporation.
GENERAL PARTNER:
Xxxxxxxx XX Holdings, Inc.,
a Georgia corporation
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
INITIAL LIMITED PARTNER:
Xxxxxxxx XX Holdings, Inc.,
a Georgia corporation
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
XXXXXXXX CAPITAL
CORPORATION:
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
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SCHEDULE A
Partners, Capital Accounts and Partnership Interests
Agreed
Capital Percentage
Name and Address of Partners Units Account Interest
---------------------------- ----- ------- --------
General Partner:
Xxxxxxxx XX Holdings, Inc.
---------------------------------
---------------------------------
---------------------------------
Limited Partners:
Xxxxxxxx XX Holdings, Inc.
---------------------------------
---------------------------------
---------------------------------
