AGREEMENT OF LIMITED PARTNERSHIP
OF
XXXXX OPERATING PARTNERSHIP, L.P.
AS
AMENDED AND RESTATED
AS OF
JANUARY 1, 2000
TABLE OF CONTENTS
ARTICLE I DEFINED TERMS...................................................................... 2
ARTICLE II PARTNERSHIP FORMATION AND IDENTIFICATION........................................... 9
2.01 Formation............................................................................... 9
2.02 Name, Office and Registered Agent....................................................... 9
2.03 Partners................................................................................ 10
2.04 Term and Dissolution.................................................................... 10
2.05 Filing of Certificate and Perfection of Limited Partnership............................. 10
2.06 Certificates Describing Partnership Units............................................... 11
ARTICLE III BUSINESS OF THE PARTNERSHIP........................................................ 11
ARTICLE IV CAPITAL CONTRIBUTIONS AND ACCOUNTS................................................. 11
4.01 Capital Contributions................................................................... 11
4.02 Additional Capital Contributions and Issuances of Additional Partnership Interests...... 11
4.03 Additional Funding...................................................................... 13
4.04 Capital Accounts........................................................................ 13
4.05 Percentage Interests.................................................................... 14
4.06 No Interest on Contributions............................................................ 14
4.07 Return of Capital Contributions......................................................... 14
4.08 No Third Party Beneficiary.............................................................. 14
ARTICLE V PROFIT AND LOSS; DISTRIBUTIONS..................................................... 15
5.01 Allocation of Profit and Loss........................................................... 15
5.02 Distributions of Cash................................................................... 17
5.03 Reit Distribution Requirements.......................................................... 18
5.04 No Right to Distributions in Kind....................................................... 18
5.05 Limitations on Return of Capital Contributions.......................................... 18
5.06 Distributions Upon Liquidation.......................................................... 18
5.07 Substantial Economic Effect............................................................. 19
ARTICLE VI RIGHTS, OBLIGATIONS AND POWERS OF THE GENERAL PARTNER.............................. 19
i
6.01 Management of the Partnership........................................................... 19
6.02 Delegation of Authority................................................................. 21
6.03 Indemnification and Exculpation of Indemnitees.......................................... 22
6.04 Liability of the General Partner........................................................ 23
6.05 Reimbursement of General Partner........................................................ 24
6.06 Outside Activities...................................................................... 24
6.07 Employment or Retention of Affiliates................................................... 24
6.08 General Partner Participation........................................................... 25
6.09 Title to Partnership Assets............................................................. 25
6.10 Miscellaneous........................................................................... 25
ARTICLE VII CHANGES IN GENERAL PARTNER......................................................... 25
7.01 Transfer of the General Partner's Partnership Interest.................................. 25
7.02 Admission of a Substitute or Additional General Partner................................. 27
7.03 Effect of Bankruptcy, Withdrawal, Death or Dissolution of a General Partner............. 28
7.04 Removal of a General Partner............................................................ 28
ARTICLE VIII RIGHTS AND OBLIGATIONS OF THE LIMITED PARTNERS..................................... 29
8.01 Management of the Partnership........................................................... 29
8.02 Power of Attorney....................................................................... 29
8.03 Limitation on Liability of Limited Partners............................................. 29
8.04 Ownership by Limited Partner of Corporate General Partner or Affiliate.................. 30
8.05 Exchange Right.......................................................................... 30
8.06 Call Right.............................................................................. 31
ARTICLE IX TRANSFERS OF LIMITED PARTNERSHIP INTERESTS......................................... 33
9.01 Purchase for Investment................................................................. 33
9.02 Restrictions on Transfer of Limited Partnership Interests............................... 33
9.03 Admission of Substitute Limited Partner................................................. 35
9.04 Rights of Assignees of Partnership Interests............................................ 36
9.05 Effect of Bankruptcy, Death, Incompetence or Termination of a Limited Partner........... 36
9.06 Joint Ownership of Interests............................................................ 36
ii
ARTICLE X BOOKS AND RECORDS; ACCOUNTING; TAX MATTERS......................................... 36
10.01 Books and Records....................................................................... 36
10.02 Custody of Partnership Funds; Bank Accounts............................................. 37
10.03 Fiscal and Taxable Year................................................................. 37
10.04 Annual Tax Information and Report....................................................... 37
10.05 Tax Matters Partner; Tax Elections; Special Basis Adjustments........................... 37
10.06 Reports to Limited Partners............................................................. 38
ARTICLE XI BOOKS AND RECORDS; ACCOUNTING; TAX MATTERS......................................... 38
ARTICLE XII GENERAL PROVISIONS................................................................. 39
12.01 Notices................................................................................. 39
12.02 Survival of Rights...................................................................... 39
12.03 Additional Documents.................................................................... 39
12.04 Severability............................................................................ 39
12.05 Entire Agreement........................................................................ 39
12.06 Pronouns and Plurals.................................................................... 39
12.07 Headings................................................................................ 39
12.08 Counterparts............................................................................ 39
12.09 Governing Law........................................................................... 39
iii
AGREEMENT OF LIMITED PARTNERSHIP
OF
XXXXX OPERATING PARTNERSHIP, L.P.
AS
AMENDED AND RESTATED
AS OF
JANUARY 1, 2000
RECITALS
WHEREAS, Xxxxx Operating Partnership, L.P. (the "Partnership") was formed
as a limited partnership under the laws of the State of Delaware pursuant to a
filing of Certificate of Limited Partnership with the Secretary of State of the
State of Delaware effective December 19, 1997; and
WHEREAS, an Agreement of Limited Partnership of Xxxxx Operating
Partnership, L.P. dated January 29, 1998 (the "Original Agreement") was entered
into as of such date by and between Xxxxx Real Estate Investment Trust, Inc., a
Maryland corporation (the "General Partner"), and Xxxxx Capital, Inc., a Georgia
corporation (the "Original Limited Partner"); and
WHEREAS, the General Partner and the Original Limited Partner are desirous
of amending and restating the Original Agreement (as so amended and restated,
the "Agreement").
AGREEMENT
---------
NOW, THEREFORE, in consideration of the foregoing, of mutual covenants
between the parties hereto, and of other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree, and the Original Agreement is hereby amended and restated in its
entirety, as follows:
ARTICLE I
DEFINED TERMS
-------------
The following defined terms used in this Agreement shall have the meanings
specified below:
"Act" means the Delaware Revised Uniform Limited Partnership Act, as it may
be amended from time to time.
"Additional Funds" has the meaning set forth in Section 4.03 hereof.
"Additional Limited Partner" means a Person admitted to the Partnership as
a Limited Partner pursuant to Section 4.02 hereof and who is shown as such on
the books and records of the Partnership.
"Additional Securities" means any additional REIT Shares (other than REIT
Shares issued in connection with an exchange pursuant to Section 8.05 hereof) or
rights, options, warrants or convertible or exchangeable securities containing
the right to subscribe for or purchase REIT Shares, as set forth in Section
4.02(a)(ii).
2
"Administrative Expenses" means (i) all administrative and operating costs
and expenses incurred by the Partnership, (ii) those administrative costs and
expenses of the General Partner, including any salaries or other payments to
directors, officers or employees of the General Partner, and any accounting and
legal expenses of the General Partner, which expenses, the Partners have agreed,
are expenses of the Partnership and not the General Partner, and (iii) to the
extent not included in clause (ii) above, REIT Expenses; provided, however, that
-------- -------
Administrative Expenses shall not include any administrative costs and expenses
incurred by the General Partner that are attributable to Properties or
partnership interests in a Subsidiary Partnership that are owned by the General
Partner directly.
"Affiliate" means (i) any Person that, directly or indirectly, controls or
is controlled by or is under common control with such Person, (ii) any other
Person that owns, beneficially, directly or indirectly, 10% or more of the
outstanding capital stock, shares or equity interests of such Person, or (iii)
any officer, director, employee, partner or trustee of such Person or any Person
controlling, controlled by or under common control with such Person (excluding
trustees and persons serving in similar capacities who are not otherwise an
Affiliate of such Person). For the purposes of this definition, "control"
(including the correlative meanings of the terms "controlled by" and "under
common control with"), as used with respect to any Person, shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, through the ownership
of voting securities or partnership interests or otherwise.
"Agreed Value" means (i) the fair market value of a Partner's non-cash
Capital Contribution as of the date of contribution as agreed to by such Partner
and the General Partner as of the date of contribution as set forth on Exhibit A
---------
hereto, as it may be amended from time to time, or (ii) in the case of any
contribution or distribution of property other than cash not set forth on
Exhibit A, the fair market value of such property as determined by the General
---------
Partner at the time such property is contributed or distributed, reduced by
liabilities either assumed by the Partnership or Partner upon such contribution
or distribution or to which such property is subject when the property is
contributed or distributed.
"Agreement" means this Agreement of Limited Partnership, as it may be
amended or restated from time to time.
"Articles of Incorporation" means the Articles of Incorporation of the
General Partner filed with the Maryland State Department of Assessments and
Taxation, as amended or restated from time to time.
"Call Notice" means a Call Notice, as defined in Section 8.06(a) hereof and
substantially in the form of Exhibit C hereto.
---------
"Call Right" has the meaning provided in Section 8.06(a) hereof.
"Capital Account" has the meaning provided in Section 4.04 hereof.
"Capital Contribution" means the total amount of cash, cash equivalents,
and the Agreed Value of any Property or other asset contributed or agreed to be
contributed, as the context requires, to the Partnership by each Partner
pursuant to the terms of the Agreement. Any reference to the Capital
Contribution of a Partner shall include the Capital Contribution made by a
predecessor holder of the Partnership Interest of such Partner.
3
"Cash Amount" means an amount of cash equal to the Value of the REIT Shares
Amount on the date of receipt by the General Partner of an Exchange Notice.
"Certificate" means any instrument or document that is required under the
laws of the State of Delaware, or any other jurisdiction in which the
Partnership conducts business, to be signed and sworn to by the Partners of the
Partnership (either by themselves or pursuant to the power-of-attorney granted
to the General Partner in Section 8.02 hereof) and filed for recording in the
appropriate public offices within the State of Delaware or such other
jurisdiction to perfect or maintain the Partnership as a limited partnership, to
effect the admission, withdrawal, or substitution of any Partner from or to the
Partnership, or to protect the limited liability of the Limited Partners as
limited partners under the laws of the State of Delaware or such other
jurisdiction.
"Code" means the Internal Revenue Code of 1986, as amended, and as
hereafter amended from time to time. Reference to any particular provision of
the Code shall mean that provision in the Code at the date hereof and any
successor provision of the Code.
"Commission" means the U.S. Securities and Exchange Commission.
"Conversion Factor" means 1.0, provided, that in the event that the General
--------
Partner (i) declares or pays a dividend on its outstanding REIT Shares in REIT
Shares or makes a distribution to all holders of its outstanding REIT Shares in
REIT Shares, (ii) subdivides its outstanding REIT Shares, or (iii) combines its
outstanding REIT Shares into a smaller number of REIT Shares, the Conversion
Factor shall be adjusted by multiplying the Conversion Factor by a fraction, the
numerator of which shall be the number of REIT Shares issued and outstanding on
the record date for such dividend, distribution, subdivision or combination
(assuming for such purposes that such dividend, distribution, subdivision or
combination has occurred as of such time), and the denominator of which shall be
the actual number of REIT Shares (determined without the above assumption)
issued and outstanding on such date and, provided further, that in the event
-------- -------
that an entity other than an Affiliate of the General Partner shall become
General Partner pursuant to any merger, consolidation or combination of the
General Partner with or into another entity (the "Successor Entity"), the
Conversion Factor shall be adjusted by multiplying the Conversion Factor by the
number of shares of the Successor Entity into which one REIT Share is converted
pursuant to such merger, consolidation or combination, determined as of the date
of such merger, consolidation or combination. Any adjustment to the Conversion
Factor shall become effective immediately after the effective date of such event
retroactive to the record date, if any, for such event; provided, however, that
-------- -------
if the General Partner receives an Exchange Notice after the record date, but
prior to the effective date of such dividend, distribution, subdivision or
combination, the Conversion Factor shall be determined as if the General Partner
had received the Exchange Notice immediately prior to the record date for such
dividend, distribution, subdivision or combination.
"Event of Bankruptcy" as to any Person means (i) the filing of a petition
for relief as to such Person as debtor or bankrupt under the Bankruptcy Code of
1978 or similar provision of law of any jurisdiction (except if such petition is
contested by such Person and has been dismissed within 90 days); (ii) the
insolvency or bankruptcy of such Person as finally determined by a court
proceeding; (iii) the filing by such Person of a petition or application to
accomplish the same or for the appointment of a receiver or a trustee for such
Person or a substantial part of his assets; and (iv) the commencement of any
proceedings relating to such Person as a debtor under any other reorganization,
arrangement, insolvency, adjustment of debt or liquidation law of any
jurisdiction, whether now in existence or hereinafter in effect, either by such
Person or by another, provided, that
--------
4
if such proceeding is commenced by another, such Person indicates his approval
of such proceeding, consents thereto or acquiesces therein, or such proceeding
is contested by such Person and has not been finally dismissed within 90 days.
"Exchange Amount" means either the Cash Amount or the REIT Shares Amount,
as selected by the General Partner in its sole and absolute discretion pursuant
to Section 8.05(b) hereof.
"Exchange Notice" means a Notice of Exercise of Exchange Right, as defined
in Section 8.05(a) hereof and substantially in the form of Exhibit B hereto.
---------
"Exchange Right" has the meaning provided in Section 8.05(a) hereof.
"Exchanging Partner" has the meaning provided in Section 8.05(a) hereof.
"General Partner" means Xxxxx Real Estate Investment Trust, Inc. a Maryland
corporation, and any Person who becomes a substitute or additional General
Partner as provided herein, and any of their successors as General Partner.
"General Partnership Interest" means a Partnership Interest held by the
General Partner that is a general partnership interest.
"GP Capital" means the aggregate of Capital Contributions of cash made by
the General Partner in accordance with Sections 4.01 and 4.02 hereof.
"GP Minimum Return" means such amount as may be necessary or required to
allow the General Partner to meet its distribution requirement for qualification
as a REIT as set forth in Section 857 of the Code and to avoid any federal
income or excise tax liability imposed by the Code.
"Holding Period" means, with respect to Partnership Units acquired by
Additional Limited Partners hereunder, the period commencing on the date of
issuance of such Units through and including the fourth anniversary of such date
of acquisition.
"Indemnitee" means (i) any Person made a party to a proceeding by reason of
its status as the General Partner or a director, officer or employee of the
General Partner or the Partnership, and (ii) such other Persons (including
Affiliates of the General Partner or the Partnership) as the General Partner may
designate from time to time, in its sole and absolute discretion.
"Independent Director" means a director of the General Partner who is not
an officer or employee of the General Partner, any Affiliate of an officer or
employee or any Affiliate of (i) any lessee of any property of the General
Partner or any Subsidiary of the General Partner, (ii) any Subsidiary of the
General Partner, or (iii) any partnership that is an Affiliate of the General
Partner.
"Limited Partner" means the Original Limited Partner, any Person named as a
Limited Partner on Exhibit A attached hereto, and any Person who becomes a
---------
Substitute or Additional Limited Partner in such person's capacity as a Limited
Partner in the Partnership.
"Limited Partnership Interest" means the ownership interest of a Limited
Partner in the Partnership at any particular time, including the right of such
Limited Partner to any and all benefits to which such Limited Partner may be
entitled as provided in this Agreement and in the Act,
5
together with the obligations of such Limited Partner to comply with all the
provisions of this Agreement and of such Act.
"Liquidating Event" has the meaning set forth in Section 2.04 hereof.
"Loss" has the meaning provided in Section 5.01(f) hereof.
"LP Capital" means the aggregate of Capital Contributions in cash or cash
equivalents and the Agreed Value of any non-cash contributions to the
Partnership made by a Limited Partner in accordance with Sections 4.01 and 4.02
hereof.
"LP Return" means, with regard to any Limited Partner, an amount equal to
the aggregate cash dividends that would have been payable to such Limited
Partner with respect to the applicable fiscal period if such Limited Partner had
owned REIT Shares equal in number to the number of Partnership Units owned by
such Limited Partner during such fiscal period.
"Net Capital Proceeds" means the net cash proceeds received by the
Partnership in connection with (i) any sale of a Property by the Partnership,
(ii) any borrowing or refinancing of borrowing(s) by the Partnership, (iii) any
condemnation or deeding in lieu of condemnation of all or a portion of any
Property, (iv) any collection in respect of property, hazard, or casualty
insurance (but not business interruption insurance) or any damage award; or (v)
any other transaction the proceeds of which, in accordance with generally
accepted accounting principles, are considered to be capital in nature, in each
case, after deduction of (a) all costs and expenses incurred by the Partnership
with regard to such transactions (including, without limitation, any repayment
of any indebtedness required to be repaid as a result of such transaction or
which the General Partner elects to pay out of the proceeds of such transaction,
together with accrued interest and premium, if any, thereon and any sales
commissions or other costs or expenses due and payable to any Person in
connection therewith, including to a Partner or its Affiliates), and (b) all
amounts expended by the Partnership for the acquisition of additional Properties
or for capital repairs or improvements to any Property with such cash proceeds.
"Offer" has the meaning set forth in Section 7.01(c)(ii) hereof.
"Offering" means the initial offer and sale by the General Partner and the
purchase by the Dealer Manager (as defined in the Prospectus) of REIT Shares for
sale to the public.
"Original Limited Partner" means the Limited Partner designated as
"Original Limited Partner" on Exhibit A hereto.
---------
"Partner" means any General Partner or Limited Partner.
"Partner Nonrecourse Debt Minimum Gain" has the meaning set forth in
Regulations Section 1.704-2(i). A Partner's share of Partner Nonrecourse Debt
Minimum Gain shall be determined in accordance with Regulations Section
1.704-2(i)(5).
"Partnership" means Xxxxx Operating Partnership, L.P., a Delaware limited
partnership.
"Partnership Interest" means an ownership interest in the Partnership held
by either a Limited Partner or the General Partner and includes any and all
benefits to which the holder of such
6
a Partnership Interest may be entitled as provided in this Agreement, together
with all obligations of such Person to comply with the terms and provisions of
this Agreement.
"Partnership Minimum Gain" has the meaning set forth in Regulations Section
1.704-2(b)(2). In accordance with Regulations Section 1.704-2(d), the amount of
Partnership Minimum Gain is determined by first computing, for each Partnership
nonrecourse liability, any gain the Partnership would realize if it disposed of
the property subject to that liability for no consideration other than full
satisfaction of the liability, and then aggregating the separately computed
gains. A Partner's share of Partnership Minimum Gain shall be determined in
accordance with Regulations Section 1.704-2(g)(1).
"Partnership Record Date" means the record date established by the General
Partner for the distribution of cash pursuant to Section 5.02 hereof, which
record date shall be the same as the record date established by the General
Partner for a distribution to its shareholders.
"Partnership Unit" means a fractional, undivided share of the Partnership
Interests of all Partners issued hereunder. The allocation of Partnership Units
among the Partners shall be as set forth on Exhibit A, as it may be amended from
---------
time to time.
"Percentage Interest" means the percentage ownership interest in the
Partnership of each Partner, as determined by dividing the number of Partnership
Units owned by a Partner by the aggregate number of Partnership Units owned by
all Partners.
"Person" means any individual, partnership, corporation, joint venture,
limited liability company, trust or other entity.
"Profit" has the meaning provided in Section 5.01(f) hereof.
"Property" means any office or industrial real property in which the
Partnership holds an ownership interest, either directly or pursuant to the
Partnership's ownership of an interest in a subsidiary which owns an interest in
any such office or industrial real property.
"Prospectus" means the final prospectus delivered to purchasers of REIT
Shares in the Offering.
"Regulations" means the Federal Income Tax Regulations, including
temporary or proposed regulations, issued under the Code, as amended and as
hereafter amended from time to time. Reference to any particular provision of
the Regulations shall mean that provision of the Regulations on the date hereof
and any successor provision of the Regulations.
"REIT" means a real estate investment trust under Sections 856 through
860 of the Code.
"REIT Expenses" means (i) costs and expenses relating to the formation
and continuity of existence and operation of the General Partner and any
Subsidiaries thereof (which Subsidiaries shall, for purposes hereof, be included
within the definition of General Partner), including taxes, fees and assessments
associated therewith, any and all costs, expenses or fees payable to any
director, officer, or employee of the General Partner, (ii) costs and expenses
relating to (A) any registration and public offering of securities by the
General Partner, the net proceeds of which were used to make a contribution to
the Partnership, and (B) all statements and reports incidental thereto,
including, without limitation, underwriting discounts and selling commissions
applicable to any
7
such offering of securities, and any costs and expenses associated with any
claims made by any holders of such securities or any underwriters or placement
agents thereof, (iii) costs and expenses associated with any repurchase of any
securities by the General Partner, (iv) costs and expenses associated with the
preparation and filing, of any periodic or other reports and communications by
the General Partner under federal, state or local laws or regulations, including
filings with the Commission, (v) costs and expenses associated with compliance
by the General Partner with laws, rules and regulations promulgated by any
regulatory body, including the Commission and any securities exchange, (vi)
costs and expenses associated with any section 401(k) plan, incentive plan,
bonus plan or other plan providing for compensation for the employees of the
General Partner, (vii) costs and expenses incurred by the General Partner
relating to any issuance or redemption of Partnership Interests or REIT Shares,
and (viii) all other operating or administrative costs of the General Partner
incurred in the ordinary course of its business on behalf of or in connection
with the Partnership.
"REIT Share" means a share of common stock in the General Partner (or
Successor Entity, as the case may be).
"REIT Shares Amount" means a number of REIT Shares equal to the product of
the number of Partnership Units offered for exchange by an Exchanging Partner,
multiplied by the Conversion Factor as adjusted to and including the Specified
Exchange Date; provided that in the event the General Partner issues to all
-------- ----
holders of REIT Shares rights, options, warrants or convertible or exchangeable
securities entitling the shareholders to subscribe for or purchase REIT Shares,
or any other securities or property (collectively, the "rights"), and the rights
have not expired at the Specified Exchange Date, then the REIT Shares Amount
shall also include the rights issuable to a holder of the REIT Shares on the
record date fixed for purposes of determining the holders of REIT Shares
entitled to rights.
"Securities Act" means the Securities Act of 1933, as amended.
"Service" means the Internal Revenue Service.
"Specified Exchange Date" means the first business day of the month first
occurring after the expiration of 60 business days from the date of receipt by
the General Partner of the Exchange Notice.
"Subsidiary" means, with respect to any Person, any corporation or other
entity of which a majority of (i) the voting power of the voting equity
securities or (ii) the outstanding equity interests is owned, directly or
indirectly, by such Person.
"Subsidiary Partnership" means any partnership in which partnership
interests are owned by the General Partner or by a wholly-owned Subsidiary of
the General Partner.
"Substitute Limited Partner" means any Person admitted to the Partnership
as a Limited Partner pursuant to Section 9.03 hereof.
"Successor Entity" has the meaning provided in the definition of
"Conversion Factor" contained herein.
"Survivor" has the meaning set forth in Section 7.01(d) hereof.
8
"Transaction" has the meaning set forth in Section 7.01(c) hereof.
"Transfer" has the meaning set forth in Section 9.02(a) hereof.
"Transfer Restriction Date" means the effective date upon which the
Original Limited Partner shall cease acting as the advisor to the General
Partner under the terms of an advisory agreement entered into between the
Original Limited Partner and the General Partner.
"Unpaid Return" means any accrued but unpaid LP Return or GP Minimum Return
less all amounts distributed by the Partnership to a Limited Partner or the
----
General Partner in reduction thereof.
"Value" means, with respect to any security, the average of the daily
market price of such security for the ten consecutive trading days immediately
preceding the date as of which such Value is to be determined. The market price
for each such trading day shall be: (i) if the security is listed or admitted to
trading on any securities exchange, the sale price, regular way, on such day, or
if no such sale takes place on such day, the average of the closing bid and
asked prices, regular way, on such day; (ii) if the security is not listed or
admitted to trading on any securities exchange, the last reported sale price on
such day or, if no sale takes place on such day, the average of the closing bid
and asked prices on such day, as reported by a reliable quotation source
designated by the General Partner; or (iii) if the security is not listed or
admitted to trading on any securities exchange and no such last reported sale
price or closing bid and asked prices are available, the average of the reported
high bid and low asked prices on such day, as reported by a reliable quotation
source designated by the General Partner, or if there shall be no bid and asked
prices on such day, the average of the high bid and low asked prices, as so
reported, on the most recent day (not more than ten days prior to the date in
question) for which prices have been so reported; provided, that if there are no
--------
bid and asked prices reported during the ten days prior to the date in question,
the value of the security shall be determined by the General Partner acting in
good faith on the basis of such quotations and other information as it
considers, in its reasonable judgment, appropriate. In the event the security
includes any additional rights, then the value of such rights shall be
determined by the General Partner acting in good faith on the basis of such
quotations and other information as it considers, in its reasonable judgment,
appropriate.
ARTICLE II
PARTNERSHIP FORMATION AND IDENTIFICATION
----------------------------------------
2.01 Formation. The Partnership is a limited partnership formed pursuant
---------
to the Act and upon the terms and conditions set forth in this Agreement.
2.02 Name, Office and Registered Agent. The name of the Partnership is
---------------------------------
Xxxxx Operating Partnership, L.P. The specified office and place of business of
the Partnership shall be 0000 Xxx Xxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxx
00000. The General Partner may at any time change the location of such office,
provided the General Partner gives notice to the Partners of any such change.
The name and address of the Partnership's registered agent is The Corporation
Trust Company, Corporation Trust Center, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxx
Xxxxxx Xxxxxx, Xxxxxxxx 00000. The sole duty of the registered agent as such is
to forward to the Partnership any notice that is served on it as registered
agent.
9
2.03 Partners.
--------
(a) The General Partner of the Partnership is Xxxxx Real Estate Investment
Trust, Inc., a Maryland corporation. Its principal place of business is the same
as that of the Partnership.
(b) The Limited Partners are those Persons identified as Limited Partners
on Exhibit A hereto, as it may be amended from time to time.
---------
2.04 Term and Dissolution.
--------------------
(a) The term of the Partnership shall continue in full force and effect
until December 31, 2050, except that the Partnership shall be dissolved earlier
upon the first to occur of any of the following events ("Liquidating Events"):
(i) the occurrence of an Event of Bankruptcy as to a General
Partner or the dissolution, death, removal or withdrawal of a General
Partner unless the business of the Partnership is continued pursuant to
Section 7.03(b) hereof, provided, that if a General Partner is on the date
--------
of such occurrence a partnership, the dissolution of such General Partner
as a result of the dissolution, death, withdrawal, removal or Event of
Bankruptcy of a partner in such partnership shall not be an event of
dissolution of the Partnership if the business of such General Partner is
continued by the remaining partner or partners thereof, either alone or
with additional partners, and such General Partner and such partners comply
with any other applicable requirements of this Agreement;
(ii) the passage of 90 days after the sale or other disposition of
all or substantially all of the assets of the Partnership (provided, that
--------
if the Partnership receives an installment obligation as consideration for
such sale or other disposition, the Partnership shall continue, unless
sooner dissolved under the provisions of this Agreement, until such time as
such obligation is paid in full);
(iii) the exchange of all Limited Partnership Interests (other than
any of such interests held by the General Partner or Affiliates of the
General Partner); or
(iv) the election by the General Partner that the Partnership should
be dissolved.
(b) Upon dissolution of the Partnership (unless the business of the
Partnership is continued pursuant to Section 7.03(b) hereof), the General
Partner (or its trustee, receiver, successor or legal representative) shall
amend or cancel the Certificate and liquidate the Partnership's assets and apply
and distribute the proceeds thereof in accordance with Section 5.06 hereof.
Notwithstanding the foregoing, the liquidating General Partner may either (i)
defer liquidation of, or withhold from distribution for a reasonable time, any
assets of the Partnership (including those necessary to satisfy the
Partnership's debts and obligations), or (ii) distribute the assets to the
Partners in kind.
2.05 Filing of Certificate and Perfection of Limited Partnership. The
-----------------------------------------------------------
General Partner shall execute. acknowledge, record and file, at the expense of
the Partnership, the Certificate and any and all amendments thereto and all
requisite fictitious name statements and notices in such places and
jurisdictions as may be necessary to cause the Partnership to be treated as a
limited partnership under, and otherwise to comply with, the laws of each state
or other jurisdiction in which the Partnership conducts business.
10
2.06 Certificates Describing Partnership Units. At the request of a
-----------------------------------------
Limited Partner, the General Partner may, at its option and in its discretion,
issue a certificate summarizing the terms of such Limited Partner's interest in
the Partnership, including the number of Partnership Units owned as of the date
of such certificate. If issued, any such certificates (a) shall be in form and
substance as approved by the General Partner, (b) shall not be negotiable, and
(c) shall bear a legend substantially similar to the following:
"This certificate is not negotiable. The Partnership Units represented by
this certificate are governed by and transferable only in accordance with
the provisions of the Agreement of Limited Partnership of Xxxxx Operating
Partnership, L.P., as amended from time to time."
ARTICLE III
BUSINESS OF THE PARTNERSHIP
---------------------------
The purpose and nature of the business to be conducted by the Partnership
is (a) to conduct any business that may be lawfully conducted by a limited
partnership organized pursuant to the Act, provided, however, that such business
shall be limited to and conducted in such a manner as to permit the General
Partner at all times to qualify as a REIT, unless the General Partner otherwise
ceases to qualify as a REIT, (b) to enter into any partnership, joint venture or
other similar arrangement to engage in any of the foregoing or the ownership of
interests in any entity engaged in any of the foregoing, and (c) to do anything
necessary or incidental to the foregoing. In connection with the foregoing, and
without limiting the General Partner's right in its sole and absolute discretion
to cease qualifying as a REIT, the Partners acknowledge that the General
Partner's current status as a REIT and the avoidance of income and excise taxes
on the General Partner inures to the benefit of all the Partners and not solely
to the General Partner. Notwithstanding the foregoing, the Limited Partners
agree that the General Partner may terminate its status as a REIT under the Code
at any time to the full extent permitted under its Articles of Incorporation.
The General Partner shall also be empowered to do any and all acts and things
necessary or prudent to ensure that the Partnership will not be classified as a
"publicly traded partnership" for purposes of Section 7704 of the Code.
ARTICLE IV
CAPITAL CONTRIBUTIONS AND ACCOUNTS
----------------------------------
4.01 Capital Contributions. The General Partner and the Original Limited
---------------------
Partner have made Capital Contributions to the Partnership in exchange for the
Partnership Units set forth opposite their names on Exhibit A. At such time as
---------
Additional Limited Partners are admitted to the Partnership, each shall make
Capital Contributions as set forth opposite their names on Exhibit A, as it may
---------
be amended from time to time.
4.02 Additional Capital Contributions and Issuances of Additional
------------------------------------------------------------
Partnership Interests. Except as provided in this Section 4.02 or in Section
---------------------
4.03, the Partners shall have no right or obligation to make any additional
Capital Contributions or loans to the Partnership. The General Partner may
contribute additional capital to the Partnership, from time to time, and receive
additional Partnership Units in respect thereof in the manner contemplated by
this Section 4.02.
11
(a) Issuances of Additional Partnership Interests.
---------------------------------------------
(i) General. The General Partner is hereby authorized to cause
-------
the Partnership to issue additional Partnership Interests in the form of
Partnership Units for any Partnership purpose, at any time or from time to time,
to the Partners (including the General Partner) or to other Persons for such
consideration and on such terms and conditions as shall be established by the
General Partner in its sole and absolute discretion, all without the approval of
any Limited Partners. Any additional Partnership Interests issued thereby may be
issued in one or more classes, or one or more series of any of such classes,
with such designations, preferences and relative participating, optional or
other special rights, powers and duties, including rights, powers and duties
senior to Limited Partnership Interests, all as shall be determined by the
General Partner in its sole and absolute discretion and without the approval of
any Limited Partner, subject to Delaware law, including, without limitation, (A)
the allocations of items of Partnership income, gain, loss, deduction and credit
to each such class or series of Partnership Interests; (B) the right of each
such class or series of Partnership Interests to share in Partnership
distributions; and (C) the rights of each such class or series of Partnership
Interests upon dissolution and liquidation of the Partnership; provided,
--------
however, that no additional Partnership Interests shall be issued to the General
-------
Partner unless:
(1) the additional Partnership Interests are issued in connection
with an issuance of REIT Shares or other interests in, the
General Partner, which shares or interests have designations,
preferences and other rights such that the economic interests are
substantially similar to the designations, preferences and other
rights of the additional Partnership Interests issued to the
General Partner by the Partnership in accordance with this
Section 4.02, and the General Partner shall make a Capital
Contribution to the Partnership in an amount equal to the
proceeds raised in connection with the issuance of such shares of
stock of or other interests in the General Partner;
(2) the additional Partnership Interests are issued in exchange for
property owned by the General Partner with a fair market value,
as determined by the General Partner, in good faith, equal to the
value of the Partnership Interests; or
(3) the additional Partnership Interests are issued to all Partners
in proportion to their respective Percentage Interests.
Without limiting the foregoing, the General Partner is expressly authorized to
cause the Partnership to issue Partnership Units for less than fair market
value, so long as the General Partner concludes in good faith that such issuance
is in the best interests of the General Partner and the Partnership.
(ii) Upon Issuance of Additional Securities. The General Partner shall
--------------------------------------
not issue any additional REIT Shares (other than REIT Shares issued in
connection with an exchange made pursuant to Section 8.05 hereof) or rights,
options, warrants or convertible or exchangeable securities containing the right
to subscribe for or purchase REIT Shares (collectively, "Additional Securities")
other than to all holders of REIT Shares, unless (A) the General Partner shall
------
cause the Partnership to issue to the General Partner, as the General Partner
may designate, Partnership Interests or rights, options, warrants or convertible
or exchangeable securities of the Partnership having designations, preferences
and other rights such that the economic interests are substantially similar to
those of the Additional Securities, and (B) the General Partner contributes the
proceeds
12
from the issuance of such Additional Securities and from any exercise of rights
contained in such Additional Securities, directly and through the General
Partner, to the Partnership; provided, however, that the General Partner is
-------- -------
allowed to issue Additional Securities in connection with an acquisition of a
property to be held directly by the General Partner, but if and only if, such
direct acquisition and issuance of Additional Securities have been approved and
determined to be in the best interests of the General Partner and the
Partnership by a majority of the Independent Directors. Without limiting the
foregoing, the General Partner is expressly authorized to issue Additional
Securities for less than fair market value, and to cause the Partnership to
issue to the General Partner corresponding Partnership Interests, so long as (1)
the General Partner concludes in good faith that such issuance is in the best
interests of the General Partner and the Partnership, including without
limitation, the issuance of REIT Shares and corresponding Partnership Units
pursuant to an employee share purchase plan providing for employee purchases of
REIT Shares at a discount from fair market value or employee stock options that
have an exercise price that is less than the fair market value of the REIT
Shares, either at the time of issuance or at the time of exercise, and (2) the
General Partner contributes all proceeds from such issuance to the Partnership.
(b) Certain Deemed Contributions of Proceeds of Issuance of REIT Shares.
-------------------------------------------------------------------
In connection with any and all issuances of REIT Shares, the General Partner
shall make Capital Contributions to the Partnership of the proceeds therefrom,
provided, that if the proceeds actually received and contributed by the General
--------
Partner are less than the gross proceeds of such issuance as a result of any
underwriter's discount or other expenses paid or incurred in connection with
such issuance, then the General Partner shall be deemed to have made Capital
Contributions to the Partnership in the aggregate amount of the gross proceeds
of such issuance and the Partnership shall be deemed simultaneously to have paid
such offering expenses in accordance with Section 6.05 hereof and in connection
with the required issuance of additional Partnership Units to the General
Partner for such Capital Contributions pursuant to Section 4.02(a) hereof.
(c) Original Limited Partner Deemed Contributions. In the event the
---------------------------------------------
Original Limited Partner elects to defer any distribution of cash hereunder to
be made to it pursuant to Section 5.02(a) hereof, then such amount shall be
deemed to be an additional contribution of capital to the Partnership by the
Original Limited Partner, which shall be added to the Original Limited Partner's
Capital Contribution to the Partnership and the Original Limited Partner's
Capital Account as established and maintained under Section 4.04 hereof.
4.03 Additional Funding. If the General Partner determines that it is in
------------------
the best interests of the Partnership to provide for additional Partnership
funds ("Additional Funds") for any Partnership purpose, the General Partner may
(a) cause the Partnership to obtain such funds from outside borrowings, or (b)
elect to have the General Partner or any of its Affiliates provide such
Additional Funds to the Partnership through loans or otherwise.
4.04 Capital Accounts. A separate capital account (a "Capital Account")
----------------
shall be established and maintained for each Partner in accordance with
Regulations Section 1.704-1(b)(2)(iv). If (a) a new or existing Partner acquires
an additional Partnership Interest in exchange for more than a de minimis
-- -------
Capital Contribution, (b) the Partnership distributes to a Partner more than a
de minimis amount of Partnership property as consideration for the redemption of
-- -------
a Partnership Interest, or (c) the Partnership is liquidated within the meaning
of Regulations Section 1.704-1(b)(2)(ii)(g), the General Partner shall revalue
the Property of the Partnership to its fair market value (as determined by the
General Partner, in its sole and absolute discretion, and taking into account
Section 7701(g) of the Code) in accordance with Regulations Section 1.704-
l(b)(2)(iv)(f). When the Partnership's property is revalued by the General
Partner, the Capital
13
Accounts of the Partners shall be adjusted in accordance with Regulations
Sections 1.704-1(b)(2)(iv)(f) and (g), which generally require such Capital
Accounts to be adjusted to reflect the manner in which the unrealized gain or
loss inherent in such property (that has not been reflected in the Capital
Accounts previously) would be allocated among the Partners pursuant to Section
5.01 if there were a taxable disposition of such property for its fair market
value (as determined by the General Partner, in its sole and absolute
discretion, and taking into account Section 7701(g) of the Code) on the date of
the revaluation.
4.05 Percentage Interests. If the number of outstanding Partnership Units
--------------------
increases or decreases during a taxable year, each Partner's Percentage Interest
shall be adjusted by the General Partner effective as of the date of each such
increase or decrease to a percentage equal to the number of Partnership Units
held by such Partner divided by the aggregate number of Partnership Units
outstanding after giving effect to such increase or decrease. In such event, the
General Partner shall revalue the Property of the Partnership and the Capital
Account for each Partner shall be adjusted as set forth in Section 4.04 hereof.
If the Partners' Percentage Interests are adjusted pursuant to this Section
4.05, the Profit and Loss for the taxable year in which the adjustment occurs
shall be prorated between the part of the year ending on the day when the
Partnership's property is revalued by the General Partner and the part of the
year beginning on the following day and, as so divided, shall be allocated to
the Partners based on their Percentage Interests before adjustment, and their
adjusted Percentage Interests, respectively, either (a) as if the taxable year
had ended on the date of the adjustment or (b) based on the number of days in
each part. The General Partner, in its sole and absolute discretion, shall
determine which method shall be used to allocate Profit and Loss for the taxable
year in which an adjustment occurs, as may be required or permitted under
Section 706 of the Code.
4.06 No Interest on Contributions. No Partner shall be entitled to interest
----------------------------
on its Capital Contribution.
4.07 Return of Capital Contributions. No Partner shall be entitled to
-------------------------------
withdraw any part of its Capital Contribution or its Capital Account or to
receive any distribution from the Partnership, except as specifically provided
in this Agreement. Except as otherwise provided herein, there shall be no
obligation to return to any Partner or withdrawn Partner any part of such
Partner's Capital Contribution for so long as the Partnership continues in
existence.
4.08 No Third Party Beneficiary. No creditor or other third party having
--------------------------
dealings with the Partnership shall have the right to enforce the right or
obligation of any Partner to make Capital Contributions or loans or to pursue
any other right or remedy hereunder or at law or in equity, it being understood
and agreed that the provisions of this Agreement shall be solely for the benefit
of, and may be enforced solely by, the parties hereto and their respective
successors and assigns. None of the rights or obligations of the Partners herein
set forth to make Capital Contributions or loans to the Partnership shall be
deemed an asset of the Partnership for any purpose by any creditor or other
third party, nor may such rights or obligations be sold, transferred or assigned
by the Partnership or pledged or encumbered by the Partnership to secure any
debt or other obligation of the Partnership or of any of the Partners. In
addition, it is the intent of the parties hereto that no distribution to any
Limited Partner shall be deemed a return of money or other property in violation
of the Act. However, if any court of competent jurisdiction holds that,
notwithstanding the provisions of this Agreement, any Limited Partner is
obligated to return such money or property, such obligation shall be the
obligation of such Limited Partner and not of the General Partner. Without
limiting the generality of the foregoing, a deficit Capital Account of a Partner
shall not be deemed to be a liability of such Partner nor an asset or property
of the Partnership.
14
ARTICLE V
PROFIT AND LOSS; DISTRIBUTIONS
------------------------------
5.01 Allocation of Profit and Loss.
-----------------------------
(a) After giving effect to the special allocations set forth in Sections
5.01(b), (c) and (d), Profit for each fiscal year of the Partnership shall be
allocated as follows: (i) first to the Partners, pro rata, in accordance with
and in proportion to their respective Partnership Interests, in amounts equal to
the amount of cash distributed to the Partners pursuant to Section 5.02(a)
hereof with respect such fiscal year; (ii) second, to the extent the amount of
Profit for such fiscal year exceeds the amount of cash distributed to the
Partners pursuant to Section 5.02(a) hereof, such excess shall be allocated to
the General Partner and the Limited Partners in amounts and in proportion to the
cumulative Loss allocated to the General Partner pursuant to clause (y) of this
Section 5.01(a) and the cumulative Loss allocated to the Limited Partners
pursuant to clause (x) of this Section 5.01(a), respectively; and (iii) finally,
the balance, if any, of Profit shall be allocated to the Partners in accordance
with and in proportion to their respective Percentage Interests. Notwithstanding
the foregoing, however, it is the intent of the Partners that allocations of
Profit to the Limited Partners be such that the amount of Profit allocated to
each Limited Partner be equal to the amount of income that would have been
allocated to such Limited Partner with respect to the applicable fiscal period
if such Limited Partner had owned REIT Shares equal in number to the number of
Partnership Units owned by such Limited Partner during such fiscal period, and
if, for any reason, the foregoing allocations of Profit result in any material
variation from this concept, Profit shall be allocated to each Limited Partner
in an amount equal to the aggregate amount of income that would have been
allocated to such Limited Partner with respect to the applicable fiscal period
if such Limited Partner had owned REIT Shares equal in number to the number of
Partnership Units owned by such Limited Partner during such fiscal period. After
giving effect to the special allocations set forth in Sections 5.01(b), (c) and
(d), Loss for a fiscal year of the Partnership shall be allocated as follows:
(w) first, to the Partners, pro rata, in accordance with and in proportion to
their respective Partnership Interests, until the cumulative Loss allocated to
each Partner under this clause (w) equals the cumulative Profit allocated to
each Partner under clause (ii) of this Section 5.01(a); (x) second, to the
Limited Partners in an amount equal to each such Limited Partner's Capital
Account balance prior to the allocation made under this clause (x); (y) third,
to the General Partner in an amount equal to the General Partner's Capital
Account balance prior to the allocation made under this clause (y); and (z)
fourth, to the General Partner to the extent that any further allocation of Loss
to Limited Partners would result in any such Limited Partners having a deficit
balance in their Capital Accounts.
(b) Notwithstanding any provision to the contrary herein, (i) any expense
of the Partnership that is a "nonrecourse deduction" within the meaning of
Regulations Section 1.704-2(b)(1) shall be allocated in accordance with the
Partners' respective Percentage Interests, (ii) any expense of the Partnership
that is a "partner nonrecourse deduction" within the meaning of Regulations
Section 1.704-2(i)(2) shall be allocated to the Partner that bears the "economic
risk of loss" of such deduction in accordance with Regulations Section 1.704-
2(i)(1), (iii) if there is a net decrease in Partnership Minimum Gain within the
meaning of Regulations Section 1.704-2(f)(1) for any Partnership taxable year,
then, subject to the exceptions set forth in Regulations Section 1.704-2(f)(2),
(3), (4) and (5), items of gain and income shall be allocated among the Partners
in accordance with Regulations Section 1.704-2(f) and the ordering rules
contained in Regulations Section 1.704-2(j), and (iv) if there is a net decrease
in Partner nonrecourse debt minimum gain
15
within the meaning of Regulations Section 1.704-2(i)(4) for any Partnership
taxable year, then, subject to the exceptions set forth in Regulations Section
1.704-2(g), items of gain and income shall be allocated among the Partners, in
accordance with Regulations Section 1.704-2(i)(4) and the ordering rules
contained in Regulations Section 1.704-2(j). A Partner's "interest in
partnership profits" for purposes of determining its share of the nonrecourse
liabilities of the Partnership within the meaning of Regulations Section 1.752-
3(a)(3) shall be such Partner's Percentage Interest.
(c) If a Partner receives in any taxable year an adjustment, allocation,
or distribution described in subparagraphs (4), (5), or (6) of Regulations
Section 1.704-1(b)(2)(ii)(d) that causes or increases a deficit balance in such
Partner's Capital Account that exceeds the sum of such Partner's shares of
Partnership Minimum Gain and Partner nonrecourse debt minimum gain, as
determined in accordance with Regulations Sections 1.704-2(g) and 1.704-2(i),
such Partner shall be allocated specially for such taxable year (and, if
necessary, later taxable years) items of income and gain in an amount and manner
sufficient to eliminate such deficit Capital Account balance as quickly as
possible as provided in Regulations Section 1.704-1(b)(2)(ii)(d). After the
occurrence of an allocation of income or gain to a Partner in accordance with
this Section 5.01(c), to the extent permitted by Regulations Section 1.704-1(b),
items of expense or loss shall be allocated to such Partner in an amount
necessary to offset the income or gain previously allocated to such Partner
under this Section 5.01(c).
(d) Loss shall not be allocated to a Limited Partner to the extent that
such allocation would cause a deficit in such Partner's Capital Account (after
reduction to reflect the items described in Regulations Section
1.704-1(b)(2)(ii)(d)(4), (5) and (6)) to exceed the sum of such Partner's shares
of Partnership Minimum Gain and Partner nonrecourse debt minimum gain. Any Loss
in excess of that limitation shall be allocated to the General Partner. After
the occurrence of an allocation of Loss to the General Partner in accordance
with this Section 5.01(d), to the extent permitted by Regulations Section
1.704-1(b), Profit shall be allocated to the General Partner in an amount
necessary to offset the Loss previously allocated to the General Partner under
this Section 5.01(d).
(e) If a Partner transfers any part or all of its Partnership Interest,
the distributive shares of the various items of Profit and Loss allocable among
the Partners during such fiscal year of the Partnership shall be allocated
between the transferor and the transferee Partner either (i) as if the
Partnership's fiscal year had ended on the date of the transfer, or (ii) based
on the number of days of such fiscal year that each was a Partner without regard
to the results of Partnership activities in the respective portions of such
fiscal year in which the transferor and the transferee were Partners. The
General Partner, in its sole and absolute discretion, shall determine which
method shall be used to allocate the distributive shares of the various items of
Profit and Loss between the transferor and the transferee Partner.
(f) "Profit" and "Loss" and any items of income, gain, expense, or loss
referred to in this Agreement shall be determined in accordance with federal
income tax accounting principles, as modified by Regulations Section
1.704-(b)(2)(iv), except that Profit and Loss shall not include items of income,
gain and expense that are specially allocated pursuant to Sections 5.01(b),
5.01(c), or 5.01(d). All allocations of income, Profit, gain, Loss, and expense
(and all items contained therein) for federal income tax purposes shall be
identical to all allocations of such items set forth in this Section 5.01,
except as otherwise required by Section 704(c) of the Code and Regulations
Section 1.704-1(b)(4). The General Partner shall have the authority, in its sole
and absolute discretion and without the need for consent from any Partner, to
elect the method or methods to be used by the Partnership for allocating items
of income, gain, expense and deductions as required by Section
16
704(c) of the Code, including election of a method that may result in one or
more Partners receiving or being allocated a disproportionately larger share of
items of Partnership income, gain, expense or deduction, and any such election
shall be binding on all Partners.
5.02 Distributions of Cash.
---------------------
(a) The Partnership shall distribute cash on a quarterly (or, at the
election of the General Partner, more frequent) basis, in an amount determined
by the General Partner in its sole and absolute discretion, to the Partners who
are Partners on the Partnership Record Date with respect to such quarter (or
other distribution period) in the following manner: (i) first, to the General
Partner in an amount equal to the GP Minimum Return with respect to the fiscal
year of the General Partner; (ii) second, to the Limited Partners pro rata among
them in proportion to the Unpaid LP Return, if any, owing to each such Limited
Partners with respect to prior fiscal years, in an amount equal to the Unpaid LP
Return for such prior fiscal years owing to each such Limited Partner; (iii)
third, after the establishment of reasonable cash reserves to meet REIT Expenses
and other obligations of the Partnership, as determined in the sole and absolute
discretion of the General Partner, to the General Partner and the Limited
Partners in such aggregate amount as may be determined by the General Partner in
its sole and absolute discretion to be allocated among the General Partner and
the Limited Partners such that each Limited Partner will receive an amount equal
to its LP Return for such fiscal year; and (iv) finally, to the Partners in
accordance with and in proportion to their respective Percentage Interests;
provided, however, that if a new or existing Partner acquires an additional
-------- -------
Partnership Interest in exchange for a Capital Contribution on any date other
than a Partnership Record Date, the cash distribution attributable to such
additional Partnership Interest relating to the Partnership Record Date next
following the issuance of such additional Partnership Interest shall be reduced
to the proportion thereof which equals (i) the number of days that such
additional Partnership Interest is held by such Partner divided by (ii) the
number of days between such Partnership Record Date and the immediately
preceding Partnership Record Date. Notwithstanding the foregoing, however, the
Original Limited Partner may, in its sole and absolute discretion, elect to
defer any distribution to be made to it, in which case the amount so deferred
shall be deemed to be an additional Capital Contribution made on behalf of the
Original Limited Partner under Section 4.02(c) hereof, to be distributed to the
Original Limited Partner upon liquidation of the Partnership under Section 5.06
hereof, or at such time as the Original Limited Partner may otherwise be allowed
to withdraw from the Partnership after the Transfer Restriction Date.
(b) Notwithstanding any other provision of this Agreement, the General
Partner is authorized to take any action that it determines to be necessary or
appropriate to cause the Partnership to comply with any withholding requirements
established under the Code or any other federal, state or local law including,
without limitation, the requirements of Sections 1441, 1442, 1445 and 1446 of
the Code. To the extent that the Partnership is required to withhold and pay
over to any taxing authority any amount resulting from the allocation or
distribution of income to a Partner or its assignee (including by reason of
Section 1446 of the Code), either (i) if the actual amount to be distributed to
the Partner or assignee equals or exceeds the amount required to be withheld by
the Partnership, the amount withheld shall be treated as a distribution of cash
in the amount of such withholding to such Partner or assignee, or (ii) if the
actual amount to be distributed to the Partner or assignee is less than the
amount required to be withheld by the Partnership, the amount required to be
withheld shall be treated as a loan (a "Partnership Loan") from the Partnership
to the Partner or assignee on the day the Partnership pays over such amount to a
taxing authority. A Partnership Loan shall be repaid through withholding by the
Partnership with respect to subsequent distributions to the applicable Partner
or assignee. In the event that a Limited Partner
17
(a "Defaulting Limited Partner") fails to pay any amount owed to the Partnership
with respect to the Partnership Loan within 15 days after demand for payment
thereof is made by the Partnership on the Limited Partner, the General Partner,
in its sole and absolute discretion, may elect to make the payment to the
Partnership on behalf of such Defaulting Limited Partner. In such event, on the
date of payment, the General Partner shall be deemed to have extended a loan (a
"General Partner Loan") to the Defaulting Limited Partner in the amount of the
payment made by the General Partner and shall succeed to all rights and remedies
of the Partnership against the Defaulting Limited Partner as to that amount.
Without limitation, the General Partner shall have the right to receive any
distributions that otherwise would be made by the Partnership to the Defaulting
Limited Partner until such time as the General Partner Loan has been paid in
full, and any such distributions so received by the General Partner shall be
treated as having been received by the Defaulting Limited Partner and
immediately paid to the General Partner.
Any amounts treated as a Partnership Loan or a General Partner Loan
pursuant to this Section 5.02(b) shall bear interest at the lesser of (A) the
base rate on corporate loans at large United States money center commercial
banks, as published from time to time in The Wall Street Journal, or (B) the
-----------------------
maximum lawful rate of interest on such obligation, such interest to accrue from
the date the Partnership or the General Partner, as applicable, is deemed to
extend the loan until such loan is repaid in full.
(c) To the extent not utilized for expenses of the Partnership or for
investment in additional Properties, the General Partner may, in its discretion,
cause the Partnership to distribute Net Capital Proceeds in such amount as shall
be determined by the General Partner in its discretion in accordance with the
provisions of Section 5.02(a) hereof.
(d) In no event may a Partner receive a distribution of cash with respect
to a Partnership Unit if such Partner is entitled to receive a cash dividend as
the holder of record of a REIT Share for which all or part of such Partnership
Unit has been or will be exchanged, and the Unpaid LP Return with respect to
such Partnership Unit shall be deemed to be reduced by the amount of any such
cash dividend.
5.03 REIT Distribution Requirements. The General Partner shall use its
------------------------------
reasonable efforts to cause the Partnership to distribute amounts sufficient to
enable the General Partner to pay shareholder dividends that will allow the
General Partner to (a) meet its distribution requirement for qualification as a
REIT as set forth in Section 857 of the Code and (b) avoid any federal income or
excise tax liability imposed by the Code.
5.04 No Right to Distributions in Kind. No Partner shall be entitled to
---------------------------------
demand property other than cash in connection with any distributions by the
Partnership.
5.05 Limitations on Return of Capital Contributions. Notwithstanding any
----------------------------------------------
of the provisions of this Article V, no Partner shall have the right to receive
and the General Partner shall not have the right to make a distribution that
includes a return of all or part of a Partner's Capital Contributions, unless
after giving effect to the return of a Capital Contribution, the sum of all
Partnership liabilities, other than the liabilities to a Partner for the return
of its Capital Contribution, does not exceed the fair market value of the
Partnership's assets.
5.06 Distributions Upon Liquidation. Upon liquidation of the
------------------------------
Partnership, after payment of, or adequate provision for, debts and obligations
of the Partnership, including any Partner loans, any remaining assets of the
Partnership shall be distributed to all Partners with
18
positive Capital Accounts in accordance with their respective positive Capital
Account balances. For purposes of the preceding sentence, the Capital Account of
each Partner shall be determined after all adjustments made in accordance with
Sections 5.01 and 5.02 resulting from Partnership operations and from all sales
and dispositions of all or any part of the Partnership's assets have been made.
To the extent deemed advisable by the General Partner, appropriate arrangements
(including the use of a liquidating trust) may be made to assure that adequate
funds are available to pay any contingent debts or obligations.
5.07 Substantial Economic Effect. It is the intent of the Partners that the
---------------------------
allocations of Profit and Loss under this Agreement have substantial economic
effect (or be consistent with the Partners' interests in the Partnership in the
case of the allocation of losses attributable to nonrecourse debt) within the
meaning of Section 704(b) of the Code as interpreted by the Regulations
promulgated pursuant thereto. Article V and other relevant provisions of this
Agreement shall be interpreted in a manner consistent with such intent.
ARTICLE VI
RIGHTS, OBLIGATIONS AND
POWERS OF THE GENERAL PARTNER
-----------------------------
6.01 Management of the Partnership.
-----------------------------
(a) Except as otherwise expressly provided in this Agreement, the General
Partner shall have full, complete and exclusive discretion to manage and control
the business of the Partnership for the purposes herein stated, and shall make
all decisions affecting the business and assets of the Partnership. Subject to
the restrictions specifically contained in this Agreement, the powers of the
General Partner shall include, without limitation, the authority to take the
following actions on behalf of the Partnership:
(i) to acquire, purchase, own, operate, lease and dispose of any
real property and any other property or assets including, but not limited
to notes and mortgages, that the General Partner determines are necessary
or appropriate or in the best interests of the business of the Partnership;
(ii) to construct buildings and make other improvements on the
properties owned or leased by the Partnership;
(iii) to authorize, issue, sell, redeem or otherwise purchase any
Partnership Interests or any securities (including secured and unsecured
debt obligations of the Partnership, debt obligations of the Partnership
convertible into any class or series of Partnership Interests, or options,
rights, warrants or appreciation rights relating to any Partnership
Interests) of the Partnership;
(iv) to borrow or lend money for the Partnership, issue or receive
evidences of indebtedness in connection therewith, refinance, increase the
amount of, modify, amend or chance the terms of, or extend the time for the
payment of, any such indebtedness, and secure such indebtedness by
mortgage, deed of trust, pledge or other lien on the Partnership's assets;
19
(v) to pay, either directly or by reimbursement, for all
operating costs and general administrative expenses of the Partnership to
third parties or to the General Partner or its Affiliates as set forth in
this Agreement;
(vi) to guarantee or become a co-maker of indebtedness of the
General Partner or any Subsidiary thereof, refinance, increase the amount
of, modify, amend or change the terms of, or extend the time for the
payment of, any such guarantee or indebtedness, and secure such guarantee
or indebtedness by mortgage, deed of trust, pledge or other lien on the
Partnership's assets;
(vii) to use assets of the Partnership (including, without
limitation, cash on hand) for any purpose consistent with this Agreement,
including, without limitation, payment, either directly or by
reimbursement, of all operating costs and general administrative expenses
of the General Partner, the Partnership or any Subsidiary of either, to
third parties or to the General Partner as set forth in this Agreement;
(viii) to lease all or any portion of any of the Partnership's
assets, whether or not the terms of such leases extend beyond the
termination date of the Partnership and whether or not any portion of the
Partnership's assets so leased are to be occupied by the lessee, or, in
turn, subleased in whole or in part to others, for such consideration and
on such terms as the General Partner may determine;
(ix) to prosecute, defend, arbitrate, or compromise any and all
claims or liabilities in favor of or against the Partnership, on such terms
and in such manner as the General Partner may reasonably determine, and
similarly to prosecute, settle or defend litigation with respect to the
Partners, the Partnership, or the Partnership's assets; provided, however,
-------- -------
that the General Partner may not, without the consent of all of the
Partners, confess a judgment against the Partnership that is in excess of
$20,000 or is not covered by insurance;
(x) to file applications, communicate, and otherwise deal with
any and all governmental agencies having jurisdiction over, or in any way
affecting, the Partnership's assets or any other aspect of the Partnership
business;
(xi) to make or revoke any election permitted or required of the
Partnership by any taxing authority;
(xii) to maintain such insurance coverage for public liability,
fire and casualty, and any and all other insurance for the protection of
the Partnership, for the conservation of Partnership assets, or for any
other purpose convenient or beneficial to the Partnership, in such amounts
and such types, as it shall determine from time to time;
(xiii) to determine whether or not to apply any insurance proceeds
for any property to the restoration of such property or to distribute the
same;
(xiv) to establish one or more divisions of the Partnership, to
hire and dismiss employees of the Partnership or any division of the
Partnership, and to retain legal counsel, accountants, consultants, real
estate brokers, and such other persons, as the General Partner may deem
necessary or appropriate in connection with the Partnership business and to
pay such persons remuneration as the General Partner may deem reasonable
and proper;
20
(xv) to retain other services of any kind or nature in connection
with the Partnership business and to pay therefor such remuneration as the
General Partner may deem reasonable and proper;
(xvi) to negotiate and conclude agreements on behalf of the
Partnership with respect to any of the rights, powers and authority
conferred upon the General Partner;
(xvii) to maintain accurate accounting records and to file promptly
all federal, state and local income tax returns on behalf of the
Partnership;
(xviii) to distribute Partnership cash or other Partnership assets in
accordance with this Agreement;
(xix) to form or acquire an interest in, and contribute property
to, any further limited or general partnerships, joint ventures, limited
iability companies or other relationships that it deems desirable
(including, without limitation, the acquisition of interests in, and the
contributions of property to, its Subsidiaries and any other Person in
which it has an equity interest from time to time);
(xx) to establish Partnership reserves for working capital,
capital expenditures, contingent liabilities, or any other valid
Partnership purpose;
(xxi) to merge, consolidate or combine the Partnership with or into
another Person;
(xxii) to do any and all acts and things necessary or prudent to
ensure that the Partnership will not be classified as a "publicly traded
partnership" for purposes of Section 7704 of the Code; and
(xxiii) to take such other action, execute, acknowledge, swear to or
deliver such other documents and instruments, and perform any and all other
acts that the General Partner deems necessary or appropriate for the
formation, continuation and conduct of the business and affairs of the
Partnership (including, without limitation, all actions consistent with
allowing the General Partner at all times to qualify as a REIT unless the
General Partner voluntarily terminates its REIT status) and to possess and
enjoy all of the rights and powers of a general partner as provided by the
Act.
(b) Except as otherwise provided herein, to the extent the duties of the
General Partner require expenditures of funds to be paid to third parties, the
General Partner shall not have any obligations hereunder except to the extent
that Partnership funds are reasonably available to it for the performance of
such duties, and nothing herein contained shall be deemed to authorize or
require the General Partner, in its capacity as such, to expend its individual
funds for payment to third parties or to undertake any individual liability or
obligation on behalf of the Partnership.
6.02 Delegation of Authority. The General Partner may delegate any or
-----------------------
all of its powers, rights and obligations hereunder, and may appoint, employ,
contract or otherwise deal with any Person for the transaction of the business
of the Partnership, which Person may, under supervision of the General Partner,
perform any acts or services for the Partnership as the General Partner may
approve.
21
6.03 Indemnification and Exculpation of Indemnitees.
----------------------------------------------
(a) The Partnership shall indemnify an Indemnitee from and against any
and all losses, claims, damages, liabilities, joint or several, expenses
(including reasonable legal fees and expenses), judgments, fines, settlements,
and other amounts arising from any and all claims, demands, actions, suits or
proceedings, civil, criminal, administrative or investigative, that relate to
the operations of the Partnership as set forth in this Agreement in which any
Indemnitee may be involved, or is threatened to be involved, as a party or
otherwise, unless it is established that: (i) the act or omission of the
Indemnitee was material to the matter giving rise to the proceeding and either
was committed in bad faith or was the result of active and deliberate
dishonesty; (ii) the Indemnitee actually received an improper personal benefit
in money, property or services; or (iii) in the case of any criminal proceeding,
the Indemnitee had reasonable cause to believe that the act or omission was
unlawful. The termination of any proceeding by judgment, order or settlement
does not create a presumption that the Indemnitee did not meet the requisite
standard of conduct set forth in this Section 6.03(a). The termination of any
proceeding by conviction or upon a plea of nolo contendere or its equivalent, or
an entry of an order of probation prior to judgment, creates a rebuttable
presumption that the Indemnitee acted in a manner contrary to that specified in
this Section 6.03(a). Any indemnification pursuant to this Section 6.03 shall be
made only out of the assets of the Partnership.
(b) The Partnership shall pay on behalf of or reimburse an Indemnitee for
reasonable expenses incurred by an Indemnitee who is a party to a proceeding in
advance of the final disposition of the proceeding upon receipt by the
Partnership of (i) a written affirmation by the Indemnitee of the Indemnitee's
good faith belief that the standard of conduct necessary for indemnification by
the Partnership as authorized in this Section 6.03 has been met, and (ii) a
written undertaking by or on behalf of the Indemnitee to repay the amount so
paid or reimbursed by the Partnership if it shall ultimately be determined that
the standard of conduct has not been met.
(c) The Indemnification provided by this Section 6.03 shall be in addition
to any other rights to which an Indemnitee or any other Person may be entitled
under any agreement, pursuant to any vote of the Partners, as a matter of law or
otherwise, and shall continue as to an Indemnitee who has ceased to serve in
such capacity.
(d) The Partnership may purchase and maintain insurance on behalf of the
Indemnitees and such other Persons as the General Partner shall determine
against any liability that may be asserted against or expenses that may be
incurred by such Person in connection with the Partnership's activities,
regardless of whether the Partnership would have the power to indemnify such
Person against such liability under the provisions of this Agreement.
(e) For purposes of this Section 6.03, (i) the Partnership shall be
deemed to have requested an Indemnitee to serve as a fiduciary of an employee
benefit plan whenever the performance by the Indemnitee of its duties to the
Partnership also imposes duties on the Indemnitee, or otherwise involves
services by the Indemnitee to the plan or participants or beneficiaries of the
plan; (ii) excise taxes assessed on an Indemnitee with respect to an employee
benefit plan pursuant to applicable law shall constitute fines within the
meaning of this Section 6.03; and (iii) actions taken or omitted by the
Indemnitee with respect to an employee benefit plan in the performance of its
duties for a purpose reasonably believed by it to be in the interest of the
participants and beneficiaries of the plan shall be deemed to be for a purpose
which is not opposed to the best interests of the Partnership.
22
(f) In no event may an Indemnitee subject the Limited Partners to personal
liability by reason of the indemnification provisions set forth in this
Agreement.
(g) An Indemnitee shall not be denied indemnification in whole or in part
under this Section 6.03 because the Indemnitee had an interest in the
transaction with respect to which the indemnification applies if the transaction
was otherwise permitted by the terms of this Agreement.
(h) The provisions of this Section 6.03 are for the benefit of the
Indemnitees, their heirs, successors, assigns and administrators and shall not
be deemed to create any rights in or be for the benefit of any other Persons.
6.04 Liability of the General Partner.
--------------------------------
(a) Notwithstanding anything to the contrary set forth in this
Agreement, the General Partner shall not be liable for monetary damages to the
Partnership or any Partners for losses sustained or liabilities incurred as a
result of errors in judgment or any act or omission if the General Partner acted
in good faith. The General Partner shall not be in breach of any duty that the
General Partner may owe to the Limited Partners or the Partnership or any other
Persons under this Agreement or of any duty stated or implied by law or equity,
provided, the General Partner, acting in good faith, abides by the terms of this
--------
Agreement.
(b) The Limited Partners expressly acknowledge that the General Partner
is acting on behalf of the Partnership, itself and its shareholders
collectively, that the General Partner is under no obligation to consider the
separate interests of the Limited Partners (including, without limitation, the
tax consequences to Limited Partners or the tax consequences of some, but not
all, of the Limited Partners) in deciding whether to cause the Partnership to
take (or decline to take) any actions. In the event of a conflict between the
interests of its shareholders on the one hand and the Limited Partners on the
other, the General Partner shall endeavor in good faith to resolve the conflict
in a manner not adverse to either its shareholders or the Limited Partners;
provided, however, that for so long as the General Partner directly owns a
-------- -------
controlling interest in the Partnership, any such conflict that the General
Partner, in its sole and absolute discretion, determines cannot be resolved in a
manner not adverse to either its shareholders or the Limited Partners shall be
resolved in favor of its shareholders. The General Partner shall not be liable
for monetary damages for losses sustained, liabilities incurred, or benefits not
derived by Limited Partners in connection with such decisions, provided that the
General Partner has acted in good faith.
(c) Subject to its obligations and duties as General Partner set forth
in Section 6.01 hereof, the General Partner may exercise any of the powers
granted to it under this Agreement and perform any of the duties imposed upon it
hereunder either directly or by or through its agents. The General Partner shall
not be responsible for any misconduct or negligence on the part of any such
agent appointed by it in good faith.
(d) Notwithstanding any other provisions of this Agreement or the Act,
any action of the General Partner on behalf of the Partnership or any decision
of the General Partner to refrain from acting on behalf of the Partnership,
undertaken in the good faith belief that such action or omission is necessary or
advisable in order to (i) protect the ability of the General Partner to continue
to qualify as a REIT or (ii) prevent the General Partner from incurring any
taxes under Section 857, Section 4981, or any other provision of the Code, is
expressly authorized under this Agreement and is deemed approved by all of the
Limited Partners.
23
(e) Any amendment, modification or repeal of this Section 6.04 or any
provision hereof shall be prospective only and shall not in any way affect the
limitations on the General Partner's liability to the Partnership and the
Limited Partners under this Section 6.04 as in effect immediately prior to such
amendment, modification or repeal with respect to matters occurring, in whole or
in part, prior to such amendment, modification or repeal, regardless of when
claims relating to such matters may arise or be asserted.
6.05 Reimbursement of General Partner.
--------------------------------
(a) Except as provided in this Section 6.05 and elsewhere in this
Agreement (including the provisions of Articles V and VI regarding
distributions, payments, and allocations to which it may be entitled), the
General Partner shall not be compensated for its services as general partner of
the Partnership.
(b) The General Partner shall be reimbursed on a monthly basis, or such
other basis as the General Partner may determine in its sole and absolute
discretion, for all REIT Expenses and Administrative Expenses.
6.06 Outside Activities. Subject to Section 6.08 hereof, the Articles of
------------------
Incorporation and any agreements entered into by the General Partner or its
Affiliates with the Partnership or a Subsidiary, or any officer, director,
employee, agent, trustee, Affiliate or shareholder of the General Partner, the
General Partner shall be entitled to and may have business interests and engage
in business activities in addition to those relating to the Partnership,
including business interests and activities substantially similar or identical
to those of the Partnership. Neither the Partnership nor any of the Limited
Partners shall have any rights by virtue of this Agreement in any such business
ventures, interests or activities. None of the Limited Partners or any other
Person shall have any rights by virtue of this Agreement or the partnership
relationship established hereby in any such business ventures, interests or
activities, and the General Partner shall have no obligation pursuant to this
Agreement to offer any interest in any such business ventures, interests and
activities to the Partnership or any Limited Partner, even if such opportunity
is of a character which. if presented to the Partnership or any Limited Partner,
could be taken by such Person.
6.07 Employment or Retention of Affiliates.
-------------------------------------
(a) Any Affiliate of the General Partner may be employed or retained by
the Partnership and may otherwise deal with the Partnership (whether as a buyer,
lessor, lessee, manager, furnisher of goods or services, broker, agent, lender
or otherwise) and may receive from the Partnership any compensation, price, or
other payment therefor which the General Partner determines to be fair and
reasonable.
(b) The Partnership may lend or contribute to its Subsidiaries or other
Persons in which it has an equity investment, and such Persons may borrow funds
from the Partnership, on terms and conditions established in the sole and
absolute discretion of the General Partner. The foregoing authority shall not
create any right or benefit in favor of any Subsidiary or any other Person.
(c) The Partnership may transfer assets to joint ventures, limited
liability companies, other partnerships, corporations or other business entities
in which it is or thereby becomes a participant upon such terms and subject to
such conditions as the General Partner deems to be consistent with this
Agreement and applicable law.
24
(d) Except as expressly permitted by this Agreement, neither the General
Partner nor any of its Affiliates shall sell, transfer or convey any property
to, or purchase any property from, the Partnership, directly or indirectly,
except pursuant to transactions that are on terms that are fair and reasonable
to the Partnership.
6.08 General Partner Participation. The General Partner agrees that all
-----------------------------
business activities of the General Partner, including activities pertaining to
the acquisition, development or ownership of office or industrial property or
other property, shall be conducted through the Partnership or one or more
Subsidiary Partnerships; provided, however, that the General Partner is allowed
-------- -------
to make a direct acquisition, but if and only if, such acquisition is made in
connection with the issuance of Additional Securities, which direct acquisition
and issuance have been approved and determined to be in the best interests of
the General Partner and the Partnership by a majority of the Independent
Directors.
6.09 Title to Partnership Assets. Partnership assets, whether real,
---------------------------
personal or mixed and whether tangible or intangible, shall be deemed to be
owned by the Partnership as an entity, and no Partner, individually or
collectively, shall have any ownership interest in such Partnership assets or
any portion thereof; provided, that title to any or all of the Partnership
--------
assets may be held in the name of the Partnership, the General Partner or one or
more nominees, as the General Partner may determine, including Affiliates of the
General Partner. The General Partner hereby declares and warrants that any
Partnership assets for which legal title is held in the name of the General
Partner or any nominee or Affiliate of the General Partner shall be held by such
Person for the use and benefit of the Partnership in accordance with the
provisions of this Agreement; provided, that the General Partner shall use its
--------
best efforts to cause legal title to such assets to be vested in the Partnership
as soon as reasonably practicable. All Partnership assets shall be recorded as
the property of the Partnership in its books and records, irrespective of the
name in which legal title to such Partnership assets is held.
6.10 Miscellaneous. In the event the General Partner redeems any REIT
-------------
Shares, then the General Partner shall cause the Partnership to purchase from
the General Partner a number of Partnership Units determined by, and based upon,
the application of the Conversion Factor on the same terms upon which the
General Partner redeemed such REIT Shares. Moreover, if the General Partner
makes a cash tender offer or other offer to acquire REIT Shares, then the
General Partner shall cause the Partnership to make a corresponding offer to the
General Partner to acquire an equal number of Partnership Units held by the
General Partner. In the event any REIT Shares are redeemed by the General
Partner pursuant to such offer, the Partnership shall redeem an equivalent
number of the General Partner's Partnership Units for an equivalent purchase
price based on the application of the Conversion Factor.
ARTICLE VII
CHANGES IN GENERAL PARTNER
--------------------------
7.01 Transfer of the General Partner's Partnership Interest.
-------------------------------------------------------
(a) The General Partner shall not transfer all or any portion of its
General Partnership Interest or withdraw as General Partner except as provided
in or in connection with a transaction contemplated by Sections 7.01(c), 7.01(d)
or 7.01(e).
25
(b) The General Partner agrees that the Percentage Interest for it will
at all times, be in the aggregate, at least 1%.
(c) Except as otherwise provided in Section 7.01(d) or (e) hereof, the
General Partner shall not engage in any merger, consolidation or other
combination with or into another Person or sale of all or substantially all of
its assets (other than in connection with a change in the General Partner's
state of incorporation or organizational form), which, in any such case, results
in a change of control of the General Partner (a "Transaction"), unless:
(i) the consent of Limited Partners holding more than 50% of the
Percentage Interests of the Limited Partners is obtained; or
(ii) as a result of such Transaction all Limited Partners are
granted the right to receive for each Partnership Unit an amount of cash,
securities, or other property equal to the product of the Conversion Factor
and the greatest amount of cash, securities or other property paid in the
Transaction to a holder of one REIT Share in consideration of the transfer
of one REIT Share; provided, that if, in connection with the Transaction, a
--------
purchase, tender or exchange offer ("Offer") shall have been made to and
accepted by the holders of more than 50% of the outstanding REIT Shares,
each holder of Partnership Units shall be given the option to exchange its
Partnership Units for the greatest amount of cash, securities, or other
property which a Limited Partner would have received had it (A) exercised
its Exchange Right and (B) sold, tendered or exchanged pursuant to the
Offer the REIT Shares received upon exercise of the Exchange Right
immediately prior to the expiration of the Offer; or
(iii) the General Partner is the surviving entity in the Transaction
and either (A) the holders of REIT Shares do not receive cash, securities,
or other property in the Transaction or (B) all Limited Partners (other
than the General Partner or any Subsidiary) receive an amount of cash,
securities, or other property (expressed as an amount per REIT Share) that
is no less than the product of the Conversion Factor and the greatest
amount of cash, securities, or other property (expressed as an amount per
REIT Share) received in the Transaction by any holder of REIT Shares.
(d) Notwithstanding Section 7.01(c), the General Partner may merge with
or into or consolidate with another entity if immediately after such merger or
consolidation (i) substantially all of the assets of the successor or surviving
entity (the "Survivor"), other than Partnership Units held by the General
Partner, are contributed, directly or indirectly, to the Partnership as a
Capital Contribution in exchange for Partnership Units with a fair market value
equal to the value of the assets so contributed as determined by the Survivor in
good faith and (ii) the Survivor expressly agrees to assume all obligations of
the General Partner, as appropriate, hereunder. Upon such contribution and
assumption, the Survivor shall have the right and duty to amend this Agreement
as set forth in this Section 7.01(d). The Survivor shall in good faith arrive at
a new method for the calculation of the Cash Amount, the REIT Shares Amount and
the Conversion Factor for a Partnership Unit after any such merger or
consolidation so as to approximate the existing method for such calculation as
closely as reasonably possible. Such calculation shall take into account, among
other things, the kind and amount of securities, cash and other property that
was receivable upon such merger or consolidation by a holder of REIT Shares or
options, warrants or other rights relating thereto, and which a holder of
Partnership Units could have acquired had such Partnership Units been exchanged
immediately prior to such merger or consolidation. Such amendment to this
Agreement shall provide for adjustments to such method of calculation, which
shall be as nearly
26
equivalent as may be practicable to the adjustments provided for herein with
respect to the Conversion Factor. The Survivor also shall in good faith modify
the definition of REIT Shares and make such amendments to Section 8.05 hereof so
as to approximate the existing rights and obligations set forth in Section 8.05
as closely as reasonably possible. The above provisions of this Section 7.01(d)
shall similarly apply to successive mergers or consolidations permitted
hereunder.
In respect of any transaction described in the preceding paragraph, the
General Partner is required to use its commercially reasonable efforts to
structure such transaction to avoid causing the Limited Partners to recognize a
gain for federal income tax purposes by virtue of the occurrence of or their
participation in such transaction, provided, such efforts are consistent with
--------
the exercise of the Board of Trustees' fiduciary duties to the shareholders of
the General Partner under applicable law.
(e) Notwithstanding Section 7.01(c),
(i) a General Partner may transfer all or any portion of its
General Partnership Interest to (A) a wholly-owned Subsidiary of such
General Partner or (B) the owner of all of the ownership interests of such
General Partner, and following a transfer of all of its General Partnership
Interest, may withdraw as General Partner; and
(ii) the General Partner may engage in a transaction not required by
law or by the rules of any national securities exchange on which the REIT
Shares are listed to be submitted to the vote of the holders of the REIT
Shares.
7.02 Admission of a Substitute or Additional General Partner. A Person
-------------------------------------------------------
shall be admitted as a substitute or additional General Partner of the
Partnership only if the following terms and conditions are satisfied:
(a) the Person to be admitted as a substitute or additional General
Partner shall have accepted and agreed to be bound by all the terms and
provisions of this Agreement by executing a counterpart hereof and such other
documents or instruments as may be required or appropriate in order to effect
the admission of such Person as a General Partner, a certificate evidencing the
admission of such Person as a General Partner shall have been filed for
recordation and all other actions required by Section 2.05 hereof in connection
with such admission shall have been performed;
(b) if the Person to be admitted as a substitute or additional General
Partner is a corporation or a partnership, it shall have provided the
Partnership with evidence satisfactory to counsel for the Partnership of such
Person's authority to become a General Partner and to be bound by the terms and
provisions of this Agreement; and
(c) counsel for the Partnership shall have rendered an opinion (relying
on such opinions from other counsel in the state or any other jurisdiction as
may be necessary) that the admission of the Person to be admitted as a
substitute or additional General Partner is in conformity with the Act, and that
none of the actions taken in connection with the admission of such Person as a
substitute or additional General Partner will cause (i) the Partnership to be
classified other than as a partnership for federal income tax purposes, or (ii)
the loss of any Limited Partner's limited liability.
27
7.03 Effect of Bankruptcy, Withdrawal, Death or Dissolution of a General
-------------------------------------------------------------------
Partner.
-------
(a) Upon the occurrence of an Event of Bankruptcy as to a General Partner
(and its removal pursuant to Section 7.04(a) hereof) or the death, withdrawal,
removal or dissolution of a General Partner (except that, if a General Partner
is on the date of such occurrence a partnership, the withdrawal, death,
dissolution, Event of Bankruptcy as to, or removal of a partner in, such
partnership shall be deemed not to be a dissolution of such General Partner if
the business of such General Partner is continued by the remaining partner or
partners thereof), the Partnership shall be dissolved and terminated unless the
Partnership is continued pursuant to Section 7.03(b) hereof. The merger of the
General Partner with or into any entity that is admitted as a substitute or
successor General Partner pursuant to Section 7.02 hereof shall not be deemed to
be the withdrawal, dissolution or removal of the General Partner.
(b) Following the occurrence of an Event of Bankruptcy as to a General
Partner (and its removal pursuant to Section 7.04(a) hereof) or the death,
withdrawal, removal or dissolution of a General Partner (except that, if a
General Partner is on the date of such occurrence a partnership, the withdrawal,
death, dissolution, Event of Bankruptcy as to, or removal of a partner in, such
partnership shall be deemed not to be a dissolution of such General Partner if
the business of such General Partner is continued by the remaining partner or
partners thereof), the Limited Partners, within 90 days after such occurrence,
may elect to continue the business of the Partnership for the balance of the
term specified in Section 2.04 hereof by selecting, subject to Section 7.02
hereof and any other provisions of this Agreement, a substitute General Partner
by consent of a majority in interest of the Limited Partners. If the Limited
Partners elect to continue the business of the Partnership and admit a
substitute General Partner, the relationship with the Partners and of any Person
who has acquired an interest of a Partner in the Partnership shall be governed
by this Agreement.
7.04 Removal of a General Partner.
----------------------------
(a) Upon the occurrence of an Event of Bankruptcy as to, or the
dissolution of, a General Partner, such General Partner shall be deemed to be
removed automatically; provided, however, that if a General Partner is on the
-------- -------
date of such occurrence a partnership, the withdrawal, death, dissolution, Event
of Bankruptcy as to or removal of a partner in such partnership shall be deemed
not to be a dissolution of the General Partner if the business of such General
Partner is continued by the remaining partner or partners thereof. The Limited
Partners may not remove the General Partner, with or without cause.
(b) If a General Partner has been removed pursuant to this Section 7.04
and the Partnership is continued pursuant to Section 7.03 hereof, such General
Partner shall promptly transfer and assign its General Partnership Interest in
the Partnership to the substitute General Partner approved by a majority in
interest of the Limited Partners in accordance with Section 7.03(b) hereof and
otherwise admitted to the Partnership in accordance with Section 7.02 hereof. At
the time of assignment, the removed General Partner shall be entitled to receive
from the substitute General Partner the fair market value of the General
Partnership Interest of such removed General Partner as reduced by any damages
caused to the Partnership by such General Partner's removal. Such fair market
value shall be determined by an appraiser mutually agreed upon by the General
Partner and a majority in interest of the Limited Partners within 10 days
following the removal of the General Partner. In the event that the parties are
unable to agree upon an appraiser, the removed General Partner and a majority in
interest of the Limited Partners each shall select an appraiser. Each such
appraiser shall complete an appraisal of the fair market value of the removed
General
28
Partner's General Partnership Interest within 30 days of the General Partner's
removal, and the fair market value of the removed General Partner's General
Partnership Interest shall be the average of the two appraisals; provided,
--------
however, that if the higher appraisal exceeds the lower appraisal by more than
-------
20% of the amount of the lower appraisal, the two appraisers, no later than 40
days after the removal of the General Partner, shall select a third appraiser
who shall complete an appraisal of the fair market value of the removed General
Partner's General Partnership Interest no later than 60 days after the removal
of the General Partner. In such case, the fair market value of the removed
General Partner's General Partnership Interest shall be the average of the two
appraisals closest in value.
(c) The General Partnership Interest of a removed General Partner, during
the time after removal until the date of transfer under Section 7.04(b), shall
be converted to that of a special Limited Partner; provided, however, such
-------- -------
removed General Partner shall not have any rights to participate in the
management and affairs of the Partnership, and shall not be entitled to any
portion of the income, expense, Profit, gain or Loss allocations or cash
distributions allocable or payable, as the case may be. to the Limited Partners.
Instead, such removed General Partner shall receive and be entitled only to
retain distributions or allocations of such items that it would have been
entitled to receive in its capacity as General Partner, until the transfer is
effective pursuant to Section 7.04(b).
(d) All Partners shall have given and hereby do give such consents,
shall take such actions and shall execute such documents as shall be legally
necessary and sufficient to effect all the foregoing provisions of this Section
7.04.
ARTICLE VIII
RIGHTS AND OBLIGATIONS
OF THE LIMITED PARTNERS
-----------------------
8.01 Management of the Partnership. The Limited Partners shall not
-----------------------------
participate in the management or control of Partnership business nor shall they
transact any business for the Partnership, nor shall they have the power to sign
for or bind the Partnership, such powers being vested solely and exclusively in
the General Partner.
8.02 Power of Attorney. Each Limited Partner hereby irrevocably appoints
-----------------
the General Partner its true and lawful attorney-in-fact, who may act for each
Limited Partner and in its name, place and stead, and for its use and benefit,
sign, acknowledge, swear to, deliver, file or record, at the appropriate public
offices, any and all documents, certificates, and instruments as may be deemed
necessary or desirable by the General Partner to carry out fully the provisions
of this Agreement and the Act in accordance with their terms, which power of
attorney is coupled with an interest and shall survive the death, dissolution or
legal incapacity of the Limited Partner, or the transfer by the Limited Partner
of any part or all of its Partnership Interest.
8.03 Limitation on Liability of Limited Partners. No Limited Partner
-------------------------------------------
shall be liable for any debts, liabilities, contracts or obligations of the
Partnership. A Limited Partner shall be liable to the Partnership only to make
payments of its Capital Contribution, if any, as and when due hereunder. After
its Capital Contribution is fully paid, no Limited Partner shall, except as
otherwise required by the Act, be required to make any further Capital
Contributions or other payments or lend any funds to the Partnership.
29
8.04 Ownership by Limited Partner of Corporate General Partner or
------------------------------------------------------------
Affiliate. No Limited Partner shall at any time, either directly or indirectly,
---------
own any stock or other interest in the General Partner or in any Affiliate
thereof, if such ownership by itself or in conjunction with other stock or other
interests owned by other Limited Partners would, in the opinion of counsel for
the Partnership, jeopardize the classification of the Partnership as a
partnership for federal income tax purposes. The General Partner shall be
entitled to make such reasonable inquiry of the Limited Partners as is required
to establish compliance by the Limited Partners with the provisions of this
Section 8.04.
8.05 Exchange Right.
--------------
(a) Subject to Sections 8.05(b), 8.05(c), 8.05(d) and 8.05(e) hereof,
and subject to the potential modification of any rights or obligations provided
for herein by agreement(s) between the Partnership and any one or more Limited
Partners with respect to Partnership Units held by them, each Limited Partner
shall have the right (the "Exchange Right") to require the Partnership to redeem
on a Specified Exchange Date all or a portion of the Partnership Units held by
such Limited Partner at an exchange price equal to and in the form of the Cash
Amount to be paid by the Partnership; provided, that such Partnership Units
--------
shall have been outstanding for at least one year. The Exchange Right shall be
exercised pursuant to the delivery of an Exchange Notice to the Partnership
(with a copy to the General Partner) by the Limited Partner who is exercising
the Exchange Right (the "Exchanging Partner"); provided, however, that the
-------- -------
Partnership shall not be obligated to satisfy such Exchange Right if the General
Partner elects to purchase the Partnership Units subject to the Exchange Notice
pursuant to Section 8.05(b); and provided further, that no Limited Partner may
deliver more than two Exchange Notices during each calendar year. A Limited
Partner may not exercise the Exchange Right for less than 1,000 Partnership
Units or, if such Limited Partner holds less than 1,000 Partnership Units, all
of the Partnership Units held by such Partner. The Exchanging Partner shall have
no right, with respect to any Partnership Units so exchanged, to receive any
distribution paid with respect to Partnership Units if the record date for such
distribution is on or after the Specified Exchange Date.
(b) Notwithstanding the provisions of Section 8.05(a), a Limited Partner
that exercises the Exchange Right shall be deemed to have also offered to sell
the Partnership Units described in the Exchange Notice to the General Partner,
and the General Partner may, in its sole and absolute discretion, elect to
purchase directly and acquire such Partnership Units by paying to the Exchanging
Partner either the Cash Amount or the REIT Shares Amount, as elected by the
General Partner (in its sole and absolute discretion), on the Specified Exchange
Date, whereupon the General Partner shall acquire the Partnership Units offered
for exchange by the Exchanging Partner and shall be treated for all purposes of
this Agreement as the owner of such Partnership Units. If the General Partner
shall elect to exercise its right to purchase Partnership Units under this
Section 8.05(b) with respect to an Exchange Notice, it shall so notify the
Exchanging Partner within five business days after the receipt by the General
Partner of such Exchange Notice. Unless the General Partner (in its sole and
absolute discretion) shall exercise its right to purchase Partnership Units from
the Exchanging Partner pursuant to this Section 8.05(b), the General Partner
shall have no obligation to the Exchanging Partner or the Partnership with
respect to the Exchanging Partner's exercise of an Exchange Right. In the event
the General Partner shall exercise its right to purchase Partnership Units with
respect to the exercise of an Exchange Right in the manner described in the
first sentence of this Section 8.05(b), the Partnership shall have no obligation
to pay any amount to the Exchanging Partner with respect to such Exchanging
Partner's exercise of such Exchange Right, and each of the Exchanging Partner
and the General Partner shall treat the transaction between the General Partner
and the Exchanging Partner for federal income tax purposes as a sale of the
30
Exchanging Partner's Partnership Units to the General Partner. Each Exchanging
Partner agrees to execute such documents as the General Partner may reasonably
require in connection with the issuance of REIT Shares to such Exchanging
Partner upon exercise of its Exchange Right.
(c) Notwithstanding the provisions of Sections 8.05(a) and 8.05(b), a
Limited Partner shall not be entitled to exercise the Exchange Right if the
delivery of REIT Shares to such Partner on the Specified Exchange Date by the
General Partner pursuant to Section 8.05(b) (regardless of whether or not the
General Partner would in fact exercise its rights under Section 8.05(b)) would
(i) result in such Partner or any other person owning, directly or indirectly,
REIT Shares in excess of the Ownership Limitation (as defined in the Articles of
Incorporation) and calculated in accordance therewith, except as provided in the
Articles of Incorporation, (ii) result in REIT Shares being owned by fewer than
100 persons (determined without reference to any rules of attribution), except
as provided in the Articles of Incorporation, (iii) result in the General
Partner being "closely held" within the meaning of Section 856(h) of the Code,
(iv) cause the General Partner to own, directly or constructively, 10% or more
of the ownership interests in a tenant of the General Partner's, the
Partnership's, or a Subsidiary Partnership's real property within the meaning of
Section 856(d)(2)(B) of the Code, or (v) cause the acquisition of REIT Shares by
such Partner to be "integrated" with any other distribution of REIT Shares for
purposes of complying with the registration provisions of the Securities Act.
The General Partner, in its sole and absolute discretion, may waive any of the
restrictions on exchange set forth in this Section 8.05(c); provided, however,
-------- -------
that in the event any such restriction is waived, the Exchanging Partner shall
be paid the Cash Amount.
(d) Any Cash Amount to be paid to an Exchanging Partner pursuant to this
Section 8.05 shall be paid on the Specified Exchange Date; provided, however,
-------- -------
that the General Partner may elect to cause the Specified Exchange Date to be
delayed for up to 180 days to the extent required for the General Partner to
cause additional REIT Shares to be issued to provide financing to be used to
make such payment of the Cash Amount. Notwithstanding the foregoing, the General
Partner agrees to use its best efforts to cause the closing of the acquisition
of exchanged Partnership Units hereunder to occur as quickly as reasonably
possible.
(e) Notwithstanding any other provision of this Agreement, the General
Partner shall place appropriate restrictions on the ability of the Limited
Partners to exercise their Exchange Rights as and if deemed necessary to ensure
that the Partnership does not constitute a "publicly traded partnership" under
Section 7704 of the Code. If and when the General Partner determines that
imposing such restrictions is necessary, the General Partner shall give prompt
written notice thereof (a "Restriction Notice") to each of the Limited Partners,
which notice shall be accompanied by a copy of an opinion of counsel to the
Partnership which states that, in the opinion of such counsel, restrictions are
necessary in order to avoid the Partnership being treated as a "publicly traded
partnership" under Section 7704 of the Code.
8.06 Call Right.
----------
(a) Subject to Section 8.06(c) below, and subject to the potential
modification of any rights or obligations provided for herein by agreement(s)
between the General Partner and any one or more Limited Partners with respect to
the Partnership Units held by them, at any time after the expiration of the
Holding Period for the Partnership Units in question, the General Partner shall
have the right (the "Call Right") to purchase all of the Partnership Units held
by a Limited Partner at a price equal to the Cash Amount; provided, however,
-------- -------
that the General Partner may, in its sole and absolute discretion, elect to
purchase such Partnership Units by paying to the Partner in question the REIT
Shares Amount in lieu of the Cash Amount. The Call Right shall be exercised
pursuant to a
31
Call Notice delivered by the General Partner to any such Limited Partner. The
General Partner may not exercise the Call Right for less than the entire
interest of a Limited Partner in the Partnership. A Limited Partner receiving
the Call Notice described above shall have no rights with respect to any
interest in the Partnership other than the right to receive payment for its
interest in the Partnership in accordance with this Section 8.06. An assignee of
a Limited Partner shall be bound by and subject to the Call Right of the General
Partner pursuant to this Section 8.06. In connection with any exercise of such
Call Right by the General Partner with respect to an assignee, the Cash Amount
(or REIT Shares Amount) shall be paid by the General Partner directly to such
assignee and not to the Limited Partner from which such assignee acquired its
Partnership Units. The General Partner shall be unable to exercise the Call
Right and the Call Right shall lapse upon the occurrence of a Liquidating Event
unless and until the Partners shall continue the business of the Partnership
under Section 7.03 hereof.
(b) (i) Within 30 days after the delivery of the Call Notice by the
General Partner to a Limited Partner under this Section 8.06, the General
Partner (subject to the limitations set forth in Section 8.06(c)) shall transfer
and deliver the Cash Amount (or the REIT Shares Amount) to such Limited Partner
or, as applicable, its assignee, whereupon the General Partner (or its designee)
shall acquire the Partnership Units of such Limited Partner or, as applicable,
its assignee, and shall be treated for all purposes of this Agreement as the
owner of such Partnership Units (and as a Limited Partner with respect to such
Partnership Units).
(ii) In the event that the General Partner elects to pay such
Limited Partner in the form of the REIT Shares Amount and such REIT Shares
Amount is not a whole number of REIT Shares, the Limited Partner shall be paid
(A) the number of REIT Shares which equals the nearest whole number less than
such amount plus (B) an amount of cash which the General Partner determines, in
its reasonable discretion, to represent the fair value of the remaining
fractional REIT Share which would otherwise be payable to the Limited Partner.
(iii) Each Limited Partner agrees to deliver to the General Partner
the Partnership Unit Certificate(s) representing its Limited Partnership
Interest and to execute such documents as the General Partner may reasonably
require in connection with the issuance of REIT Shares upon exercise of the Call
Right (including without limitation an assignment of Partnership Units pursuant
to the terms of which such Limited Partner (A) represents, warrants and
certifies that it has marketable and unencumbered title to its Partnership
Units, free and clear of the rights of or interest of any other person or
entity, that it has the full right, power and authority to transfer and
surrender its Partnership Units, and that it has obtained the consent or
approval of all persons or entities, if any, having the right to consent to or
approve of such transfer and surrender, and (B) agrees to indemnify and hold the
General Partner harmless from and against any and all liabilities, charges,
costs and expenses relating to such Limited Partner's Partnership Units which
are subject to the Call Right or the exercise of the Call Right).
(c) Notwithstanding the provisions of Sections 8.06(a) and 8.06(b)
above, the General Partner shall not be entitled to exercise the Call Right if
(i) a Liquidating Event has occurred with regard to the Partnership and the
Partnership has not been continued under Section 7.03 hereof; or (ii) the
delivery of REIT Shares to the Limited Partner (A) would be prohibited under the
Articles of Incorporation, (B) would adversely affect the ability of the General
Partner to continue to qualify as a REIT or subject the General Partner to any
additional taxes under Section 857 or Section 4981 of the Code, or (C) would be
prohibited under applicable federal or state securities laws or regulations.
32
(d) Each Limited Partner covenants and agrees with the General Partner
that all Partnership Units delivered in connection with the Call Right shall be
delivered to the General Partner free and clear of all liens and encumbrances
and, notwithstanding anything contained herein to the contrary, the General
Partner shall not be under any obligation to acquire a Limited Partner's
Partnership Units (i) to the extent that any such Partnership Units are subject
to any such liens or encumbrances or (ii) in the event that the Limited Partner
shall fail to give the General Partner adequate assurances that such Partnership
Units are not subject to any such liens or encumbrances or shall fail to agree
to fully indemnify the General Partner from any such liens or encumbrances as
well as the liabilities, charges, costs and expenses referenced in the last
section of Section 8.06(b)(iii). Each Limited Partner further agrees that, in
the event any state or local transfer tax is payable as a result of the transfer
of its Partnership Units to the General Partner, such Limited Partner shall
assume and pay such transfer tax.
ARTICLE IX
TRANSFERS OF LIMITED PARTNERSHIP INTERESTS
------------------------------------------
9.01 Purchase for Investment.
-----------------------
(a) Each Limited Partner hereby represents and warrants to the General
Partner and to the Partnership that the acquisition of its Partnership Interest
is made as a principal for its account for investment purposes only and not with
a view to the resale or distribution of such Partnership Interest.
(b) Each Limited Partner agrees that it will not sell, assign or
otherwise transfer its Partnership Interest or any fraction thereof, whether
voluntarily or by operation of law or at judicial sale or otherwise, to any
Person who does not make the representations and warranties to the General
Partner set forth in Section 9.01(a) above.
9.02 Restrictions on Transfer of Limited Partnership Interests.
----------------------------------------------------------
(a) Subject to the provisions of Sections 9.02(b), 9.02(c) and 9.02(d),
no Limited Partner may offer, sell, assign, hypothecate, pledge or otherwise
transfer all or any portion of its Limited Partnership Interest, or any of such
Limited Partner's economic rights as a Limited Partner, whether voluntarily or
by operation of law or at judicial sale or otherwise (collectively, a
"Transfer"), without the consent of the General Partner, which consent may be
granted or withheld in its sole and absolute discretion. Any such purported
transfer undertaken without such consent shall be considered to be null and void
ab initio and shall not be given effect. The Original Limited Partner
acknowledges that the General Partner has agreed not to grant its consent with
respect to any Transfer by the Original Limited Partner prior to the Transfer
Restriction Date; provided, that the Original Limited Partner shall not be
prohibited from a Transfer of its Partnership Interest pursuant to the exercise
of its right to exchange its Partnership Interest for REIT Shares pursuant to
Section 8.05 above, in which case the Original Limited Partner acknowledges that
the General Partner has also agreed not to grant its consent with respect to any
Transfer of said REIT Shares prior to the Transfer Restriction Date. The General
Partner may require, as a condition of any Transfer to which it consents, that
the transferor assume all costs incurred by the Partnership in connection
therewith.
(b) No Limited Partner may withdraw from the Partnership other than as a
result of: (i) a permitted Transfer (i.e., a Transfer consented to as
----
contemplated by paragraph (a) above or
33
paragraph (c) below or a Transfer made pursuant to Section 9.05 below) of all of
its Partnership Units pursuant to this Article IX pursuant to an exchange of all
of its Partnership Units pursuant to Section 8.05 above; or (iii) a Transfer
made pursuant to the sale of all its Partnership Units pursuant to Section 8.06
above. Upon the permitted Transfer or redemption of all of a Limited Partner's
Partnership Units, such Limited Partner shall cease to be a Limited Partner.
(c) Subject to Sections 9.02(d), 9.02(e) and 9.02(f), a Limited Partner
may Transfer, with the consent of the General Partner, all or a portion of its
Partnership Units to (i) a parent or parent's spouse, natural or adopted
descendants, a spouse of any such descendant, a brother or sister, or a trust
created by such Limited Partner for the benefit of such Limited Partner and/or
any such person(s), for which trust such Limited Partner or any such person(s)
is a trustee, (ii) a corporation controlled by a Person or Persons named in (i)
above, or (iii) if the Limited Partner is an entity, its beneficial owners.
(d) No Limited Partner may effect a Transfer of its Limited Partnership
Interest, in whole or in part, if, in the opinion of legal counsel for the
Partnership, such proposed Transfer would require the registration of the
Limited Partnership Interest under the Securities Act, or would otherwise
violate any applicable federal or state securities or blue sky law (including
investment suitability standards).
(e) No Transfer by a Limited Partner of its Partnership Units, in whole
or in part, may be made to any Person if (i) in the opinion of legal counsel for
the Partnership, the transfer would result in the Partnership's being treated as
an association taxable as a corporation (other than a qualified REIT subsidiary
within the meaning of Section 856(i) of the Code), (ii) in the opinion of legal
counsel for the Partnership, it would adversely affect the ability of the
General Partner to continue to qualify as a REIT or subject the General Partner
to any additional taxes under Section 857 or Section 4981 of the Code, or (iii)
such transfer is effectuated through an "established securities market" or a
"secondary market (or the substantial equivalent thereof)" within the meaning of
Section 7704 of the Code.
(f) No transfer of any Partnership Units may be made to a lender to the
Partnership or any Person who is related (within the meaning of Regulations
Section 1.752-4(b)) to any lender to the Partnership whose loan constitutes a
nonrecourse liability (within the meaning of Regulations Section 1.752-1(a)(2)),
without the consent of the General Partner, which may be withheld in its sole
and absolute discretion; provided, that as a condition to such consent the
--------
lender will be required to enter into an arrangement with the Partnership and
the General Partner to exchange or redeem for the Cash Amount any Partnership
Units in which a security interest is held simultaneously with the time at which
such lender would be deemed to be a partner in the Partnership for purposes of
allocating liabilities to such lender under Section 752 of the Code.
(g) Any Transfer in contravention of any of the provisions of this
Article IX shall be void and ineffectual and shall not be binding upon, or
recognized by, the Partnership.
(h) Prior to the consummation of any Transfer under this Article IX, the
transferor and/or the transferee shall deliver to the General Partner such
opinions, certificates and other documents as the General Partner shall request
in connection with such Transfer.
34
9.03 Admission of Substitute Limited Partner.
---------------------------------------
(a) Subject to the other provisions of this Article IX, an assignee of
the Limited Partnership Interest of a Limited Partner (which shall be understood
to include any purchaser, transferee, donee. or other recipient of any
disposition of such Limited Partnership Interest) shall be deemed admitted as a
Limited Partner of the Partnership only with the consent of the General Partner
and upon the satisfactory completion of the following:
(i) the assignee shall have accepted and agreed to be bound by the
terms and provisions of this Agreement by executing a counterpart or an
amendment thereof, including a revised Exhibit A, and such other documents
---------
or instruments as the General Partner may require in order to effect the
admission of such Person as a Limited Partner;
(ii) to the extent required, an amended Certificate evidencing the
admission of such Person as a Limited Partner shall have been signed,
acknowledged and filed for record in accordance with the Act;
(iii) the assignee shall have delivered a letter containing the
representation set forth in Section 9.01(a) hereof and the agreement set
forth in Section 9.01(b) hereof;
(iv) if the assignee is a corporation, partnership or trust, the
assignee shall have provided the General Partner with evidence satisfactory
to counsel for the Partnership of the assignee's authority to become a
Limited Partner under the terms and provisions of this Agreement;
(v) the assignee shall have executed a power of attorney containing
the terms and provisions set forth in Section 8.02 hereof;
(vi) the assignee shall have paid all legal fees and other expenses
of the Partnership and the General Partner and filing and publication costs
in connection with its substitution as a Limited Partner; and
(vii) the assignee shall have obtained the prior written consent of
the General Partner to its admission as a Substitute Limited Partner, which
consent may be given or denied in the exercise of the General Partner's
sole and absolute discretion.
(b) For the purpose of allocating Profit and Loss and distributing cash
received by the Partnership, a Substitute Limited Partner shall be treated as
having become, and appearing in the records of the Partnership as, a Partner
upon the filing of the Certificate described in Section 9.03(a)(ii) hereof or,
if no such filing is required, the later of the date specified in the transfer
documents or the date on which the General Partner has received all necessary
instruments of transfer and substitution.
(c) The General Partner shall cooperate with the Person seeking to become
a Substitute Limited Partner by preparing the documentation required by this
Section 9.03 and making all official filings and publications. The Partnership
shall take all such action as promptly as practicable after the satisfaction of
the conditions in this Article IX to the admission of such Person as a Limited
Partner of the Partnership.
35
9.04 Rights of Assignees of Partnership Interests.
--------------------------------------------
(a) Subject to the provisions of Sections 9.01 and 9.02 hereof, except as
required by operation of law, the Partnership shall not be obligated for any
purposes whatsoever to recognize the assignment by any Limited Partner of its
Partnership Interest until the Partnership has received notice thereof.
(b) Any Person who is the assignee of all or any portion of a Limited
Partner's Limited Partnership Interest, but who does not become a Substitute
Limited Partner and desires to make a further assignment of such Limited
Partnership Interest, shall be subject to all the provisions of this Article IX
to the same extent and in the same manner as any Limited Partner desiring to
make an assignment of its Limited Partnership Interest.
9.05 Effect of Bankruptcy, Death, Incompetence or Termination of a
-------------------------------------------------------------
Limited Partner. The occurrence of an Event of Bankruptcy as to a Limited
---------------
Partner, the death of a Limited Partner or a final adjudication that a Limited
Partner is incompetent (which term shall include, but not be limited to,
insanity) shall not cause the termination or dissolution of the Partnership, and
the business of the Partnership shall continue if an order for relief in a
bankruptcy proceeding is entered against a Limited Partner, the trustee or
receiver of his estate or, if he dies, his executor, administrator or trustee,
or, if he is finally adjudicated incompetent, his committee, guardian or
conservator, and any such Person shall have the rights of such Limited Partner
for the purpose of settling or managing his estate property and such power as
the bankrupt, deceased or incompetent Limited Partner possessed to assign all or
any part of his Partnership Interest and to join with the assignee in satisfying
conditions precedent to the admission of the assignee as a Substitute Limited
Partner.
9.06 Joint Ownership of Interests. A Partnership Interest may be
----------------------------
acquired by two individuals as joint tenants with right of survivorship,
provided, that such individuals either are married or are related and share the
--------
same personal residence. The written consent or vote of both owners of any such
jointly-held Partnership Interest shall be required to constitute the action of
the owners of such Partnership Interest; provided, however, that the written
-------- -------
consent of only one joint owner will be required if the Partnership has been
provided with evidence satisfactory to the counsel for the Partnership that the
actions of a single joint owner can bind both owners under the applicable laws
of the state of residence of such joint owners. Upon the death of one owner of a
Partnership Interest held in a joint tenancy with a right of survivorship, the
Partnership Interest shall become owned solely by the survivor as a Limited
Partner and not as an assignee. The Partnership need not recognize the death of
one of the owners of a jointly held Partnership Interest until it shall have
received notice of such death. Upon notice to the General Partner from either
owner, the General Partner shall cause the Partnership Interest to be divided
into two equal Partnership Interests, which shall thereafter be owned separately
by each of the former joint owners.
ARTICLE X
BOOKS AND RECORDS; ACCOUNTING; TAX MATTERS
------------------------------------------
10.01 Books and Records. At all times during the continuance of the
-----------------
Partnership, the Partners shall keep or cause to be kept at the Partnership's
specified office true and complete books of account maintained in accordance
with generally accepted accounting principles, including (a) a current list of
the full name and last-known business address of each Partner; (b) a copy of the
Certificate of Limited Partnership and all certificates of amendment thereto;
(c) copies of the
36
Partnership's federal, state and local income tax returns and reports; (d)
copies of the Agreement and any financial statements of the Partnership for the
three most recent years; and (e) all documents and information required under
the Act. Any Partner or its duly authorized representative, upon paying the
costs of collection, duplication and mailing, shall be entitled to inspect or
copy such records during ordinary business hours.
10.02 Custody of Partnership Funds; Bank Accounts.
-------------------------------------------
(a) All funds of the Partnership not otherwise invested shall be
deposited in one or more accounts maintained in such banking or brokerage
institutions as the General Partner shall determine, and withdrawals shall be
made only on such signature or signatures as the General Partner may, from time
to time, determine.
(b) All deposits and other funds not needed in the operation of the
business of the Partnership may be invested by the General Partner in investment
grade instruments (or investment companies whose portfolio consists primarily
thereof, government obligations, certificates of deposit, bankers' acceptances
and municipal notes and bonds. The funds of the Partnership shall not be
commingled with the funds of any other Person except for such commingling as may
necessarily result from an investment in those investment companies permitted by
this Section 10.02(b).
10.03 Fiscal and Taxable Year. The fiscal and taxable year of the
-----------------------
Partnership shall be the calendar year.
10.04 Annual Tax Information and Report. Within 75 days after the end of
---------------------------------
each fiscal year of the Partnership, the General Partner shall furnish to each
person who was a Limited Partner at any time during such year the tax
information necessary to file such Limited Partner's individual tax returns as
shall be reasonably required by law.
10.05 Tax Matters Partner; Tax Elections; Special Basis Adjustments.
-------------------------------------------------------------
(a) The General Partner shall be the Tax Matters Partner of the
Partnership within the meaning of Section 6231(a)(7) of the Code. As Tax Matters
Partner, the General Partner shall have the right and obligation to take all
actions authorized and required, respectively, by the Code for the Tax Matters
Partner. The General Partner shall have the right to retain professional
assistance in respect of any audit of the Partnership by the Service and all
out-of-pocket expenses and fees incurred by the General Partner on behalf of the
Partnership as Tax Matters Partner shall constitute Partnership expenses. In the
event the General Partner receives notice of a final Partnership adjustment
under Section 6223(a)(2) of the Code, the General Partner shall either (i) file
a court petition for judicial review of such final adjustment within the period
provided under Section 6226(a) of the Code, a copy of which petition shall be
mailed to all Limited Partners on the date such petition is filed, or (ii) mail
a written notice to all Limited Partners, within such period, that describes the
General Partner's reasons for determining not to file such a petition.
(b) All elections required or permitted to be made by the Partnership
under the Code or any applicable state or local tax law shall be made by the
General Partner in its sole and absolute discretion.
(c) In the event of a transfer of all or any part of the Partnership
Interest of any Partner, the Partnership, at the option and in the sole and
absolute discretion of the General Partner, may elect pursuant to Section 754 of
the Code to adjust the basis of the Properties. Notwithstanding
37
anything contained in Article V of this Agreement, any adjustments made pursuant
to Section 754 shall affect only the successor-in-interest to the transferring
Partner and in no event shall be taken into account in establishing, maintaining
or computing Capital Accounts for the other Partners for any purpose under this
Agreement. Each Partner will furnish the Partnership with all information
necessary to give effect to such election.
10.06 Reports to Limited Partners.
---------------------------
(a) As soon as practicable after the close of each fiscal quarter (other
than the last quarter of the fiscal year), the General Partner shall cause to be
mailed to each Limited Partner a quarterly report containing financial
statements of the Partnership, or of the General Partner if such statements are
prepared solely on a consolidated basis with the General Partner, for such
fiscal quarter presented in accordance with generally accepted accounting
principles. As soon as practicable after the close of each fiscal year, the
General Partner shall cause to be mailed to each Limited Partner an annual
report containing financial statements of the Partnership, or of the General
Partner if such statements are prepared solely on a consolidated basis with the
General Partner, for such fiscal year, presented in accordance with generally
accepted accounting principles. The annual financial statements shall be audited
by accountants selected by the General Partner.
(b) Any Partner shall further have the right to a private audit of the
books and records of the Partnership, provided such audit is made for
Partnership purposes and at the expense of the Partner desiring it, and it is
made during normal business hours.
ARTICLE XI
AMENDMENT OF AGREEMENT; MERGER
------------------------------
The General Partner's consent shall be required for any amendment to this
Agreement. The General Partner, without the consent of the Limited Partners, may
amend this Agreement in any respect or merge or consolidate the Partnership with
or into any other partnership or business entity (as defined in Section 17-211
of the Act) in a transaction pursuant to Sections 7.01(c), 7.01(d) or 7.01(e)
hereof; provided, however, that the following amendments and any other merger or
-------- -------
consolidation of the Partnership shall require the consent of Limited Partners
holding more than 50% of the Percentage Interests of the Limited Partners:
(a) any amendment affecting the operation of the Conversion Factor or
the Exchange Right (except as provided in Sections 8.05(d) or 7.01(d) hereof) in
a manner adverse to the Limited Partners;
(b) any amendment that would adversely affect the rights of the Limited
Partners to receive the distributions payable to them hereunder, other than with
respect to the issuance of additional Partnership Units pursuant to Section 4.02
hereof;
(c) any amendment that would alter the Partnership's allocations of
Profit and Loss to the Limited Partners, other than with respect to the issuance
of additional Partnership Units pursuant to Section 4.02 hereof; or
(d) any amendment that would impose on the Limited Partners any
obligation to make additional Capital Contributions to the Partnership.
38
ARTICLE XII
GENERAL PROVISIONS
------------------
12.01 Notices. All communications required or permitted under this
-------
Agreement shall be in writing and shall be deemed to have been given when
delivered personally or upon deposit in the United States mail, registered,
postage prepaid return receipt requested, to the Partners at the addresses set
forth in Exhibit A attached hereto; provided, however, that any Partner may
--------- -------- -------
specify a different address by notifying the General Partner in writing of such
different address. Notices to the Partnership shall be delivered at or mailed to
its specified office.
12.02 Survival of Rights. Subject to the provisions hereof limiting
------------------
transfers, this Agreement shall be binding upon and inure to the benefit of the
Partners and the Partnership and their respective legal representatives,
successors, transferees and assigns.
12.03 Additional Documents. Each Partner agrees to perform all further
--------------------
acts and execute, swear to, acknowledge and deliver all further documents which
may be reasonable, necessary, appropriate or desirable to carry out the
provisions of this Agreement or the Act.
12.04 Severability. If any provision of this Agreement shall be declared
------------
illegal, invalid, or unenforceable in any jurisdiction, then such provision
shall be deemed to be severable from this Agreement (to the extent permitted by
law) and in any event such illegality, invalidity or unenforceability shall not
affect the remainder hereof.
12.05 Entire Agreement. This Agreement and exhibits attached hereto
----------------
constitute the entire Agreement of the Partners and supersede all prior written
agreements and prior and contemporaneous oral agreements, understandings and
negotiations with respect to the subject matter hereof, except as otherwise set
forth herein.
12.06 Pronouns and Plurals. When the context in which words are used in
--------------------
the Agreement indicates that such is the intent, words in the singular number
shall include the plural and the masculine gender shall include the neuter or
female gender as the context may require.
12.07 Headings. The Article and Section headings in this Agreement are
--------
for convenience only and shall not be used in construing the scope of this
Agreement or any particular Article or Section hereof.
12.08 Counterparts. This Agreement may be executed in several
------------
counterparts, each of which shall be deemed to be an original copy and all of
which together shall constitute one and the same instrument binding on all
parties hereto, notwithstanding that all parties shall not have signed the same
counterpart.
12.09 Governing Law. This Agreement shall be governed by and construed in
--------------
accordance with the laws of the State of Delaware.
39
IN WITNESS WHEREOF, the parties hereto have hereunder affixed their
signatures to this Agreement of Limited Partnership of Xxxxx Operating
Partnership, L.P. as Amended and Restated as of the 1st day of January, 2000.
GENERAL PARTNER:
---------------
XXXXX REAL ESTATE INVESTMENT
TRUST, INC.
By: /s/ Xxx X. Xxxxx, III
-------------------------------------
Xxx X. Xxxxx, III
President
ORIGINAL LIMITED PARTNER:
------------------------
XXXXX CAPITAL, INC.
By: /s/ Xxx X. Xxxxx, III
-------------------------------------
Xxx X. Xxxxx, III
President
40
EXHIBITS
EXHIBIT A - Partners, Capital Contributions and Partnership Units
EXHIBIT B - Notice of Exercise of Exchange Right
EXHIBIT C - Call Notice
41
EXHIBIT A
---------
PARTNERS, CAPITAL CONTRIBUTIONS AND PARTNERSHIP UNITS
As of January 1, 2000
Agreed Value
Cash of Property Partnership
Partners Contribution Contribution Units
-------- ------------ ------------ -----------
General Partner:
Xxxxx Real Estate $134,710,850 N/A 13,471,085 Units
Investment Trust, Inc.
0000 Xxx Xxxxxxx Xxxx.
Xxxxx 000
Xxxxxxxx, Xxxxxxx 00000
Original Limited
Partner:
Xxxxx Capital, Inc. $ 200,000 N/A 20,000 Units
0000 Xxx Xxxxxxx Xxxx.
Xxxxx 000
Xxxxxxxx, Xxxxxxx 00000
42
EXHIBIT B
---------
NOTICE OF EXERCISE OF EXCHANGE RIGHT
In accordance with Section 8.05 of the Agreement of Limited Partnership of
Xxxxx Operating Partnership, L.P., as amended (the "Agreement"), the undersigned
hereby irrevocably (i) presents for exchange ___________ Partnership Units in
Xxxxx Operating Partnership, L.P. in accordance with the terms of the Agreement
and the Exchange Right referred to in Section 8.05 thereof, (ii) surrenders such
Partnership Units and all right, title and interest therein, and (iii) directs
that the Cash Amount or REIT Shares Amount (as defined in the Agreement) as
determined by the General Partner deliverable upon exercise of the Exchange
Right be delivered to the address specified below, and if REIT Shares (as
defined in the Agreement) are to be delivered, such REIT Shares be registered or
placed in the name(s) and at the address(es) specified below.
Dated:___________________ ________________________________________
(Name of Limited Partner)
________________________________________
(Signature of Limited Partner)
________________________________________
________________________________________
(Mailing Address)
(City) (State) (Zip Code)
Signature Guaranteed by:
________________________________________
If REIT Shares are to be issued, issue to:
Name: ____________________________________
__________________________________________
__________________________________________
(Mailing Address)
(City) (State) (Zip Code)
Insert social security or other tax identification number:______________________
43
EXHIBIT C
---------
CALL NOTICE
In accordance with Section 8.06 of the Agreement of Limited Partnership of
Xxxxx Operating Partnership, L.P., as amended (the "Agreement"), the undersigned
hereby irrevocably exercises its Call Right (as defined in the Agreement) with
regard to all of the Partnership Units owned by ________________________________
in Xxxxx Operating Partnership, L.P. The undersigned shall
pay the [Cash Amount/REIT Shares Amount] to ____________________________________
at the notice address of provided in the Agreement upon receipt of (i) the duly
executed Partnership Unit Certificate of ______________________________________
transferring all right, title and interest in Partnership Units to the
undersigned, (ii) if REIT Shares are to be delivered, instructions as to the
name, address and taxpayer identification number of the person to whom such
REIT Shares will be registered or placed, and (iii) the representation,
warranty and certification of that _______________________________ (a) has
marketable and unencumbered title to such Partnership Units, free and clear of
the rights of or interests of any other person or entity; (b) has the full
right, power and authority to transfer and surrender such Partnership Units as
provided herein; and (c) has obtained the consent or approval of all persons or
entities, if any, having the right to consent to or approve of such transfer and
surrender.
XXXXX REAL ESTATE INVESTMENT TRUST, INC.
a Maryland corporation
By:_______________________________________________
Name:_____________________________________________
Title:____________________________________________
44
