EXHIBIT 10.60 TO F0RM 8-K
AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
CALI REALTY, L.P.
TABLE OF CONTENTS
ARTICLE 1 DEFINITIONS...................................................... 1
ARTICLE 2 CONTINUATION OF THE PARTNERSHIP.................................. 11
2.1 Continuation................................................... 11
2.2 Entire Agreement............................................... 11
ARTICLE 3 NAME AND OFFICES................................................. 11
3.1 Name 11
3.2 Principal and Registered Offices............................... 11
ARTICLE 4 PURPOSE.......................................................... 12
4.1 Purpose........................................................ 12
4.2 Powers......................................................... 12
ARTICLE 5 TERM AND FISCAL YEAR............................................. 13
5.1 Term 13
5.2 Fiscal Year.................................................... 13
ARTICLE 6 CAPITAL CONTRIBUTIONS, ADDITIONAL FUNDING AND
CAPITAL ACCOUNTS.......................................................... 13
6.1 Capital Contributions of the General Partner................... 13
6.2 Capital Contributions of the Limited Partners.................. 14
6.3 General Partner Option to Contribute Additional
Capital................................................... 14
6.4 General Partner Option to Issue Additional
Partnership Units to Limited Partners......................... 16
(a) Issuance of Additional Partnership Units.............. 16
(b) Issuance of New Securities............................ 18
6.5 Capital Accounts............................................... 18
6.6 Limited Liability.............................................. 19
6.7 Return of Capital.............................................. 19
6.8 No Interest on Capital Contributions........................... 19
6.9 No Third Party Beneficiary..................................... 19
6.10 Common Stock Option Plans..................................... 20
ARTICLE 7 ALLOCATION OF PROFITS AND LOSSES................................. 20
7.1 General Allocation of Profits and Losses....................... 20
7.2 Allocations with Respect to Transferred Interests.............. 20
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7.3 Regulatory Allocations......................................... 21
(a) Minimum Gain Chargeback.............................. 21
(b) Exceptions to Section 7.3(a).......................... 21
(c) Qualified Income Offset............................... 21
(d) Gross Income Allocation............................... 22
(e) Partner Nonrecourse Debt.............................. 22
(f) Interpretation........................................ 22
(g) Curative Allocations.................................. 22
7.4 Special Allocations with Respect to Contributed or
Revalued Property.............................................. 23
7.5 Allocations with Respect to Partnership Units other
than the OP Units.............................................. 23
ARTICLE 8 DISTRIBUTIONS.................................................... 23
8.1 Distribution of Net Cash Flow.................................. 23
8.2 Distributions in Kind.......................................... 24
8.3 Withholding.................................................... 24
8.4 Distributions with Respect to Partnership Units
other than OP Units....................................... 25
ARTICLE 9 MANAGEMENT....................................................... 25
9.1 Management of Partnership Affairs.............................. 25
9.2 Powers and Authorities of the General Partner.................. 26
9.3 Major Decisions................................................ 29
9.4 Restrictions on General Partner's Authority.................... 29
9.5 Engagements by the Partnership................................. 30
9.6 Engagement of Affiliates....................................... 30
9.7 Liability of the General Partner............................... 30
9.8 Reimbursement of Certain Expenses of
the General Partner ...................................... 30
9.9 Outside Activities of the General Partner...................... 31
9.10 Operation in Accordance with REIT Requirements................ 31
9.11 Title Holder.................................................. 31
ARTICLE 10 RIGHTS AND OBLIGATIONS OF LIMITED PARTNERS...................... 32
10.1 No Participation in Management of Partnership;
Rights of Limited Partners to Certain Documents............... 32
10.2 Withdrawal, Retirement, Death, Incompetency,
Insolvency or Dissolution of a Limited Partner................ 33
10.3 Redemption Rights............................................. 33
(a) Grant of Rights....................................... 33
(b) Delivery of Exercise Notices.......................... 33
(c) Assumption by General Partner......................... 34
(d) Limitation on Exercise of Redemption Rights........... 34
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(e) Computation of Number of Exchange Shares
and/or Cash To Be Paid................................ 35
(f) Closing; Delivery of Election Notice.................. 36
(g) Closing Deliveries.................................... 36
(h) Term of Rights........................................ 37
(i) Covenants of the General Partner...................... 37
(j) Limited Partners' Covenant............................ 39
ARTICLE 11 BANKING, RECORDS AND TAX MATTERS................................ 39
11.1 Partnership Funds............................................. 39
11.2 Books and Records............................................. 40
11.3 Financial Statements.......................................... 40
11.4 Tax Returns................................................... 40
11.5 Section 754 Matters........................................... 40
11.6 Tax Matter Partners........................................... 41
11.7 Other Reports................................................. 41
ARTICLE 12 TRANSFER OF GENERAL PARTNER INTERESTS........................... 41
12.1 Transfer of Interest of the General Partner................... 41
12.2 Retirement of the General Partner............................. 41
12.3 Transferee of the General Partner's Interest.................. 42
12.4 Retirement of Last Remaining General Partner.................. 42
12.5 Continuation of Partnership................................... 43
ARTICLE 13 TRANSFER OF LIMITED PARTNER INTERESTS........................... 43
13.1 Transfer of Interest of a Limited Partner..................... 43
13.2 Assignee and Substitute Limited Partners...................... 44
13.3 Assignment.................................................... 44
13.4 Cost of Admission............................................. 45
ARTICLE 14 DISSOLUTION AND LIQUIDATION OF PARTNERSHIP...................... 45
14.1 Dissolution of the Partnership................................ 45
14.2 Winding Up of Affairs......................................... 46
14.3 Accounting.................................................... 46
14.4 Final Distribution of Partnership Property.................... 46
14.5 Certificate of Cancellation................................... 47
ARTICLE 15 POWER OF ATTORNEY............................................... 47
15.1 Power of Attorney............................................. 47
15.2 Grant of Authority Irrevocable................................ 48
ARTICLE 16 AMENDMENT OF PARTNERSHIP AGREEMENT.............................. 48
16.1 Amendments by Partners........................................ 48
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16.2 Amendment by the General Partner.............................. 49
16.3 Amendment of Certificate...................................... 50
ARTICLE 17 INDEMNIFICATION................................................. 50
17.1 Partnership Indemnification of Partner........................ 50
17.2 Partner Indemnification of Partnership........................ 50
ARTICLE 18 MISCELLANEOUS PROVISIONS........................................ 51
18.1 Notices....................................................... 51
18.2 Severability.................................................. 51
18.3 Parties Bound................................................. 51
18.4 Applicable Law................................................ 51
18.5 Partition..................................................... 51
18.6 Computation of Accountants.................................... 51
18.7 Headings...................................................... 52
18.8 Counterparts.................................................. 52
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AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
CALI REALTY, L.P.
THIS AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP (this
"Agreement") of CALI REALTY, L.P., a Delaware limited partnership (the
"Partnership"), is made and entered into as of the 16th day of January, 1997, by
and among CALI REALTY CORPORATION, a Maryland corporation, as general partner,
and those parties who are designated as limited partners upon the Exhibit A
attached hereto and made a part hereof by this reference, as limited partners.
R E C I T A L S:
WHEREAS, the Partnership was previously formed pursuant to that certain
Agreement of Limited Partnership, dated as of May 31, 1994 (the "Original
Agreement"), and that certain Certificate of Limited Partnership, dated as of
May 31, 1994, which was filed with the Secretary of State of Delaware on May 31,
1994;
WHEREAS, the Original Agreement was amended and restated pursuant to the
terms of that certain Agreement of Limited Partnership, dated as of August 31,
1994 (the "LP Agreement");
WHEREAS, the parties hereto desire to continue the Partnership and amend
and restate the terms and provisions of the LP Agreement in its entirety, all
upon the terms and provisions, and subject to the conditions, set forth herein;
NOW, THEREFORE, in consideration of the foregoing, of the mutual promises
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound, hereby agree as follows:
ARTICLE 1
DEFINITIONS
As used in this Agreement, unless otherwise clearly indicated to the
contrary, the following terms have the meanings set forth below.
"Accountants" shall mean the firm or firms of independent certified public
accountants selected from time to time by the General Partner on behalf of the
Partnership to audit the books
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and records of the Partnership and to prepare statements and reports in
connection therewith.
"Act" shall mean the Delaware Revised Uniform Limited Partnership Act, as
amended from time to time subsequent to the date hereof.
"Additional Partnership Units" shall have the definition assigned to such
term in Section 6.3 hereof.
"Additional Limited Partner" shall have the definition assigned to such
term in Section 6.4 hereof.
"Affiliate" shall mean, with respect to any Partner (or as to any other
Person the affiliates of whom are relevant for purposes of any of the provisions
of this Agreement), (i) any member of the Immediate Family of such Partner; (ii)
any trustee or beneficiary of a Partner; (iii) any legal representative,
successor or assignee of such Partner or any Person referred to in the preceding
clauses (i) and (ii); (iv) any trustee for the benefit of such Partner or any
Person referred to in the preceding clauses (i) through (iii); or (v) any Person
which directly or indirectly through one or more intermediaries, Controls, is
Controlled by, or is under common Control with such Partner or any Person
referred to in the preceding clauses (i) through (iv).
"Agreed Value" shall mean, with respect to any property contributed by a
Partner to the Partnership hereunder, an amount equal to (i) the Gross Asset
Value of the Capital Contribution determined as of the date of such
contribution, less (ii) the amount of any and all liabilities securing such
contributed property that the Partnership is considered to assume or take
subject to with respect to such property under Code Section 752 or the
Regulations promulgated thereunder.
"Board of Directors" shall mean the Board of Directors of the General
Partner.
"Capital Account" shall have the definition assigned to such term in
Section 6.5 hereof.
"Capital Contribution" shall mean, with respect to any Partner, the amount
of money and the Agreed Value of any property (other than money) contributed to
the Partnership with respect to the Partnership Interest held by such Partner.
"Certificate" shall mean the Partnership's Certificate of Limited
Partnership, as amended from time to time in accordance with the terms hereof
and the Act.
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"Closing Price" shall mean, on any date, with respect to a share of Common
Stock, the last sale price, regular way, or, in case no such sale takes place on
such day, the average of the closing bid and asked prices, regular way, for one
share of Common Stock in either case as reported in the principal consolidated
transaction reporting system with respect to securities listed or admitted to
trading on the New York Stock Exchange or, if the Common Stock is not listed or
admitted to trading on the New York Stock Exchange, as reported in the principal
consolidated transaction reporting system with respect to securities listed on
the principal national securities exchange on which the Common Stock is listed
or admitted to trading, or if the Common Stock is not listed or admitted to
trading on any national securities exchange, the last quoted price, or if not so
quoted, the average of the high bid and low asked prices in the over-the-counter
market, as reported by the National Association of Securities Dealers, Inc.
Automated Quotations System or, if such system is no longer in use, the
principal other automated quotations system that may then be in use or, if the
Common Stock is not quoted by any such organization, the average of the closing
bid and asked prices as furnished by a professional market maker making a market
in the Common Stock as such person is selected from time to time by the Board of
Directors.
"Code" shall mean the Internal Revenue Code of 1986, as amended from time
to time or any successor statute thereto.
"Common Stock" shall mean the shares of the common stock, par value $.01
per share, of the General Partner.
"Completion of the Offering" shall mean the closing of the first sale of
Common Stock in the Offering.
"Control" shall mean the ability, whether by the direct or indirect
ownership of shares or other equity interests, by contract or otherwise, to
elect a majority of the directors of a corporation, to select the managing
partner of a partnership, or otherwise to select, or have the power to remove
and then select, a majority of those persons exercising governing authority over
any particular entity. In the case of a limited partnership, the sole general
partner, all of the general partners to the extent each has equal management
control and authority, or the managing general partner or managing general
partners thereof shall be deemed to have control of such partnership and, in the
case of a trust, any trustee thereof or any Person having the right to select
any such trustee shall be deemed to have control of such trust.
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"Current Per Share Market Price", on any date, shall mean the average of
the Closing Price for the five (5) consecutive Trading Days ending on such date.
"Depreciation" shall mean, with respect to any asset of the Partnership
for any fiscal year or other period, the depreciation, depletion, amortization
or other cost recovery deduction, as the case may be, allowed or allowable for
Federal income tax purposes in respect of such asset for such fiscal year or
other period; provided, however, that if there is a difference between the Gross
Asset Value and the adjusted tax basis of such asset, Depreciation shall mean
"book depreciation, depletion or amortization" as determined under Section
1.704-1(b)(2)(iv)(g)(3) of the Regulations.
"Excess Deficit Capital Account Balance" of any Partner shall be the
Capital Account balance of such Partner, adjusted as provided in the immediately
following sentence, to the extent, if any, that such balance is a deficit (after
adjustment). For purposes of determining the existence and amount of an Excess
Deficit Capital Account Balance, the Capital Account balance of a Partner shall
be adjusted by: (i) crediting thereto (A) that portion of any deficit Capital
Account balance that such Partner is required to restore under the terms of this
Agreement or any other document, and (B) the amount of such Partner's share of
Minimum Gain, including any Partner Nonrecourse Debt Minimum Gain; and (ii)
charging thereto the items described in Regulation Sections 1.704-1(b)(2)(ii)
(d)(4), (5) and (6) that apply to such Partner. The existence and amount of
Excess Deficit Capital Account Balance at the end of any year shall be
determined before any other allocations provided for in Article 7 for such year
have been made.
"Exercise Notice" shall mean the written notice as described in Section
10.3(b) hereof to be given by an Exercising Partner to the General Partner to
exercise Redemption Rights, the form of which Exercise Notice is attached to the
Unit Certificate as Attachment 1.
"Exercising Partners" shall have the meaning set forth in Section 10.3(b)
hereof.
"General Partner" shall mean Cali Realty Corporation, a Maryland
corporation, and any substitute or additional General Partner(s) duly admitted
pursuant to the terms of this Agreement, or, where the context so requires, any
successor General Partner(s) acting pursuant to the provisions of this
Agreement.
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"Gross Asset Value" shall mean, with respect to any asset of the
Partnership, such asset's adjusted basis for Federal income tax purposes, except
as follows:
(a) The initial Gross Asset Value of any asset contributed by a
Partner shall be equal to the gross fair market value of such asset as
determined by the General Partner, in its reasonable discretion; provided,
however, that the Gross Asset Values of the assets contributed by a
Limited Partner on the date hereof shall be equal to the product of (1)
the number of Partnership Units set forth opposite such Partner's name on
Exhibit A attached hereto, multiplied by (2) the initial public offering
price per share of Common Stock in connection with the Offering.
(b) If the General Partner reasonably determines that an adjustment
is necessary or appropriate to reflect the relative economic interests of
the Partners, the Gross Asset Values of all Partnership assets shall be
adjusted to equal their respective gross fair market values, as reasonably
determined by the General Partner, as of the following times:
(i) a Capital Contribution (other than a de minimis Capital
Contribution) to the Partnership by a new or existing
Limited Partner as consideration for a Partnership
Interest;
(ii) the distribution by the Partnership to a Partner of more
than a de minimis amount of Partnership money or
property as consideration for the redemption of a
Partnership Interest;
(iii) the liquidation of the Partnership within the meaning of
Section 1.704-1(b)(2)(ii)(g) of the Regulations; and
(iv) any other time that such adjustment may be made under
the Code, the Regulations or any administrative
pronouncement or ruling by the IRS.
(c) The Gross Asset Values of Partnership assets distributed to any
Partner shall be the gross fair market values of such assets as reasonably
determined by the General Partner as of the date of distribution; and
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(d) The Gross Asset Values of Partnership assets shall be increased
(or decreased) to reflect any adjustments to the adjusted basis of such
assets pursuant to Sections 734(b) or 743(b) of the Code, but only to the
extent that such adjustments are taken into account in determining Capital
Accounts pursuant to Section 1.704-1(b)(2)(iv)(m) of the Regulations;
provided, however, that Gross Asset Values shall not be adjusted pursuant
to this paragraph to the extent that the General Partner reasonably
determines that an adjustment pursuant to paragraph (b) above is necessary
or appropriate in connection with a transaction that would otherwise
result in an adjustment pursuant to this paragraph (d).
At all times, Gross Asset Values shall be adjusted by any Depreciation taken
into account with respect to the Partnership's assets for purposes of computing
Profits and Losses. Any adjustment to the Gross Asset Values of Partnership
property shall require an adjustment to the Partners' Capital Accounts; as for
the manner in which such adjustments are allocated to the Capital Accounts, see
clause (iii) of the definition of Profits and Losses in the case of adjustment
by Depreciation, and clause (iv) of said definition in all other cases.
"Immediate Family" shall mean, with respect to any individual Person, such
individual Person's spouse, parents, parents-in-law, descendants, nephews,
nieces, brothers, sisters, brothers-in-law, sisters-in-law and children-in-law.
"IRS" means the Internal Revenue Service, which administers the federal
tax laws of the United States.
"Limited Partners" shall mean any Person named as a Limited Partner on the
Exhibit A attached hereto as such Exhibit may be amended from time to time, or
any substituted Limited Partner or additional Limited Partner duly admitted to
the Partnership pursuant to the terms of this Agreement.
"Liquidation" shall mean the disposition of all or substantially all of
the assets of the Partnership pursuant to a complete liquidation of the
Partnership.
"Minimum Gain" shall have the meaning given such term in Treasury
Regulation Section 1.704-2(d), and shall generally mean the amount by which the
nonrecourse liabilities secured by any assets of the Partnership exceed the
adjusted tax basis of such assets as of the date of determination. A Partner's
share of Minimum Gain (and any net decrease thereof) at any time shall be
determined in accordance with Treasury Regulation Section 1.704-2(g).
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"Net Cash Flow" shall mean, with respect to any fiscal period of the
Partnership, the excess, if any, of "Receipts" over "Expenditures." For purposes
hereof, the term "Receipts" means the sum of (i) all cash receipts of the
Partnership from all sources for such period, including Net Sale Proceeds and
Net Financing Proceeds but excluding Capital Contributions, and (ii) any amounts
held as reserves as of the last day of the period immediately prior to such
fiscal period that the General Partner deemed necessary for any capital or
operating expenditure permitted hereunder. The term "Expenditures" means the sum
of (a) all cash expenses of the Partnership for such period, (b) the amount of
all payments of principal and interest on account of any indebtedness of the
Partnership including payments of principal and interest on account of any
indebtedness owed to a Partner during such period, (c) any amounts held as
reserves as of the last day of such fiscal period as the General Partner in its
sole discretion deems necessary for any capital or operating expenditures
permitted hereunder or reserves for any other purpose that the General Partner
in its sole discretion shall determine to be appropriate and (d) any amounts
held in working capital accounts or other cash or similar balances which the
General Partner determines to be necessary or appropriate in its sole
discretion. In the event the General Partner issues additional classes of
Partnership Units other than OP Units, the General Partner may, to the extent
necessary, in its sole discretion, determine the amount of Net Cash Flow
attributable to each class of Partnership Units and the timing of payment
thereof.
"Net Financing Proceeds" shall mean the cash proceeds received by the
Partnership in connection with any borrowing or refinancing of borrowing by or
on behalf of the Partnership (whether or not secured), after deduction of all
costs and expenses incurred by the Partnership in connection with such
borrowing, and after deduction of that portion of such proceeds used to repay
any other indebtedness of the Partnership, or any interest or premium thereon.
"Net Sale Proceeds" means the cash proceeds received by the Partnership in
connection with a sale of any asset by or on behalf of the Partnership after
deduction of any costs or expenses incurred by the Partnership, or payable
specifically out of the proceeds of such sale (including, without limitation,
any repayment of any indebtedness required to be repaid as a result of such sale
or which the General Partner elects to repay out of the proceeds of such sale,
together with accrued interest and premium, if any, thereon and any sales
commissions or other costs and expenses due and payable to any Person in
connection with a sale, including to a Partner or its Affiliates).
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"Offered Units" shall mean the Partnership Units of the Exercising
Partners identified in an Exercise Notice which, pursuant to the exercise of a
Redemption Right, can be acquired by the General Partner under the terms hereof.
"Offering" shall mean the initial public offering of the General Partner's
Common Stock.
"OP Units" shall mean those Partnership Units issued prior to September 1,
1995 and any additional OP Units issued by the General Partner pursuant to
Article 6 hereof.
"Original Agreement" shall have the meaning assigned to such term in the
Recitals set forth above.
"Partner or Partners" shall mean, unless the context in which the term is
used requires otherwise, the General Partner and the Limited Partners.
"Partner Nonrecourse Debt" shall have the meaning assigned to such term in
Regulation Section 1.704-2(b)(4).
"Partner Nonrecourse Debt Minimum Gain" shall have the meaning assigned to
such term in Regulation Section 1.704-2(i).
"Partnership" shall mean Cali Realty, L.P., a Delaware limited
partnership.
"Partnership Agreement" shall mean this Agreement of Limited Partnership
and the Exhibits and Schedules hereto, and any amendments hereto from time to
time.
"Partnership Interest" shall mean the ownership interest of a Partner in
the Partnership from time to time, including such Partner's Percentage Interest
and Capital Account and any and all other benefits to which the holder of such a
Partnership Interest may be entitled as provided in this Agreement and under
applicable laws, together with all obligations of such Person to comply with the
terms and provisions of this Agreement.
"Partnership Interests Exchange Agreement" shall mean, with respect to a
particular Limited Partner, that certain Partnership Interests Exchange
Agreement, dated as of July 26, 1994, by and among the Partnership, such Limited
Partner, and the other parties thereto, pursuant to which such Limited Partner
is contributing to the Partnership, directly or indirectly, all of such
Partner's right, title and interest in and to a particular Property Partnership.
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"Partnership Unit" shall mean a fractional, undivided share of the
Partnership Interests of all Partners issued pursuant to Article 6 hereof;
provided, however, that in the event the General Partner issues classes of
Partnership Units to Limited Partners other than the OP Units pursuant to
Section 6.4 hereof, the term Partnership Unit shall mean with respect to each
class of Partnership Units, a fractional, undivided share of the Partnership
Interests of all Partners in such class.
"Partnership Record Date" shall mean the record date established by the
General Partner for any particular distribution of Net Cash Flow pursuant to
Article 8 hereof, which record date shall be the same as the record date
established by the General Partner for distribution to its shareholders of some
or all of its portion of such distribution.
"Percentage Interest" shall mean, with respect to any Partner, its
interest in the Partnership as determined by dividing the Partnership Units
owned by such Partner by the total number of Partnership Units then issued and
outstanding; provided, however, that in the event the General Partner issues
classes of Partnership Units other than OP Units, the term Percentage Interest
shall mean with respect to any Partner, its interest in the Partnership as
determined by dividing the Partnership Units of each class owned by such Partner
by the total number of Partnership Units in such class then issued and
outstanding.
"Person" shall mean a natural person, corporation, trust, partnership,
estate, unincorporated association or other entity.
"Profits or Losses" shall mean, for each fiscal year or other applicable
period, an amount equal to the Partnership's net income or loss for such year or
period as determined for Federal income tax purposes by the Accountants,
determined in accordance with Section 703(a) of the Code (for this purpose, all
items of income, gain, loss or deduction required to be stated separately
pursuant to Section 703(a) of the Code shall be included in taxable income or
loss), with the following adjustments: (i) by including as an item of gross
income any tax-exempt income received by the Partnership; (ii) by treating as a
deductible expense any expenditure of the Partnership described in Section
705(a)(2)(B) of the Code (including amounts paid or incurred to organize the
Partnership (unless an election is made pursuant to Code Section 709(b)) or to
promote the sale of interests in the Partnership and by treating deductions for
any losses incurred in connection with the sale or exchange of Partnership
property disallowed pursuant to Section 267(a)(1) or Section 707(b) of the Code
as expenditures described in Section 705(a)(2)(B) of the Code); (iii) in lieu of
depreciation, depletion, amortization and
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other cost recovery deductions taken into account in computing total income or
loss, there shall be taken into account Depreciation; (iv) gain or loss
resulting from any disposition of Partnership property with respect to which
gain or loss is recognized for Federal income tax purposes shall be computed by
reference to the Gross Asset Value of such property rather than its adjusted tax
basis; and (v) in the event of an adjustment of the Gross Asset Value of any
Partnership asset which requires that the Capital Accounts of the Partnership be
adjusted pursuant to Regulation Section 1.704-1(b)(2)(iv)(e), (f) and (m), the
amount of such adjustment is to be taken into account as additional Profits or
Losses pursuant to Article 7.
"Property Partnership" shall mean each of the following (i.e., those
partnerships in which, pursuant to the Partnership Interests Exchange
Agreements, the Limited Partners are contributing to the Partnership, directly
or indirectly, all of their right, title and interest as partners in such
partnerships): (i) ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Associates, (ii) ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Associates, (iii) Century Plaza Associates, (iv) C.W. Associates, (v) D.B.C.
Associates, (vi) Cali Building V Associates, (vii) ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Associates, (viii) Chestnut Ridge Associates, (ix) Roseland II Limited
Partnership, (x) Grove Street Associates of Jersey City Limited Partnership,
(xi) ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Associates, (xii) Tenby Chase Apartments and (xiii)
Office Associates, Ltd.
"Redemption Rights" shall have the meaning set forth in Section 10.3(a)
hereof.
"Registration Statement" shall mean the Registration Statement No.
33-79892 (including the prospectus contained therein) heretofore filed by the
General Partner with the United States Securities and Exchange Commission, and
any amendments at any time made thereto (other than post-effective amendments),
pursuant to which the General Partner proposes to offer and sell certain of its
Common Stock.
"Regulations" shall mean the Income Tax Regulations promulgated under the
Code, as such regulations may be amended from time to time (including
corresponding provisions of succeeding regulations).
"Regulatory Allocations" has the meaning set forth in Section 7.3(g) of
this Agreement.
"REIT" shall mean a real estate investment trust under Section 856 of the
Code.
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"REIT Requirements" shall mean any and all requirements that must be met
to qualify as a REIT under the Code and the Regulations.
"Trading Day" shall mean a day on which the principal national securities
exchange on which the Common Stock is listed or admitted to trading is open for
the transaction of business or, if the Common Stock is not listed or admitted to
trading on any national securities exchange, any day other than a Saturday, a
Sunday or a day on which banking institutions in the State of New York are
authorized or obligated by law or executive order to close.
"Unit Certificate" shall have the meaning set forth in Section 6.2 hereof.
ARTICLE 2
CONTINUATION OF THE PARTNERSHIP
2.1 Continuation. The Partners hereby continue the Partnership as a
limited partnership formed under and pursuant to the terms and provisions of the
Act, and the rights and obligations of the Partners shall be as provided therein
except as otherwise expressly provided in this Agreement. The Partners agree to
execute such certificates or documents and do such filings and recordings and
all other acts, including the filing or recording of an amendment to the
Certificate and any assumed name certificates in the appropriate offices in the
State of Delaware and any other applicable jurisdictions as may be required to
comply with applicable law. The Partners agree that immediately after the
admission of one Limited Partner, the Organizational Limited Partner shall be
deemed to have withdrawn from the Partnership.
2.2 Entire Agreement. Each and every other agreement or understanding,
oral or written, relating in any way to the formation or operation of the
Partnership including, but not limited to, the Original Agreement, is hereby
superseded in its entirety. From and after the execution of this Agreement, the
same shall constitute the only Agreement of Limited Partnership of the
Partnership except as the same may hereafter be amended pursuant to the
provisions hereof. This Agreement represents the entire agreement and
understanding of the parties hereto concerning the Partnership and their
relationship as Partners, and all prior or concurrent agreements,
understandings, representations and warranties in regard to the subject matter
hereof including, but not limited to, the Original Agreement, are and have been
merged herein.
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ARTICLE 3
NAME AND OFFICES
3.1 Name. The business of the Partnership shall be conducted under the
name of "Cali Realty, L.P.", or such other name as the General Partner may from
time to time designate upon notice to the Limited Partners.
3.2 Principal and Registered Offices. The principal place of business of
the Partnership shall be located at c/o the General Partner at ▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇. The registered agent of the Partnership shall
be The ▇▇▇▇▇▇▇▇-▇▇▇▇ Corporation System, Inc. The registered office of the
Partnership shall be ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇-▇▇▇, ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇. The General Partner may from time to time designate another
registered agent or another location for the registered office or principal
place of business of the Partnership upon notice to the other Partners. The
Partnership may maintain offices at such other place or places within or outside
the State of Delaware as the General Partner deems advisable.
ARTICLE 4
PURPOSE
4.1 Purpose. The purpose and nature of the business to be conducted by the
Partnership is (i) 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 be classified as a REIT for federal income tax
purposes, unless the General Partner has determined to cease to qualify as a
REIT, (ii) to enter into any partnership, joint venture or other similar
arrangements to engage in any of the foregoing or the ownership of interests in
any entity engaged in any of the foregoing and (iii) 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 discretion to cease qualifying
as a REIT, the Partners acknowledge that the General Partner's status as a REIT
inures to the benefit of all of the Partners and not solely the General Partner.
4.2 Powers. The Partnership is empowered to do any and all acts and things
necessary, appropriate, proper, advisable,
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incidental to or convenient for the furtherance and accomplishment of the
purposes and business described herein and for the protection and benefit of the
Partnership; provided, that the Partnership shall not take, or shall refrain
from taking, any action which, in the judgment of the General Partner, in its
sole and absolute discretion, (i) could adversely affect the ability of the
General Partner to continue to qualify as a REIT, (ii) could subject the General
Partner to any additional taxes under Section 857 or Section 4981 of the Code or
any successor or newly enacted provisions of the Code imposing other additional
taxes or penalties on the General Partner, or (iii) could violate any law or
regulation of any governmental body or agency having jurisdiction over the
General Partner or its securities, unless any such action (or inaction) under
(i), (ii) or (iii) shall have been specifically consented to by the General
Partner in writing.
ARTICLE 5
TERM AND FISCAL YEAR
5.1 Term. The term of the Partnership commenced on May 31, 1994, the date
the Certificate was filed in the appropriate offices in the State of Delaware,
and shall continue until terminated pursuant to the provisions of Article 14 of
this Agreement.
5.2 Fiscal Year. The first fiscal year of the Partnership shall terminate
on December 31, 1994, and succeeding fiscal years shall terminate on December 31
of each year thereafter, or such other date as the Partnership shall terminate
as herein provided.
ARTICLE 6
CAPITAL CONTRIBUTIONS, ADDITIONAL FUNDING AND CAPITAL ACCOUNTS
6.1 Capital Contributions of the General Partner. Upon Completion of the
Offering, the General Partner shall contribute the proceeds of the Offering to
the Partnership, which proceeds will be net of the underwriter's discount and
other expenses. Notwithstanding the exact amount of such net proceeds which are
contributed to the Partnership, the General Partner shall be deemed to have made
a Capital Contribution to the Partnership in the amount of the gross proceeds of
the Offering and the Partnership shall be deemed simultaneously to have
reimbursed the General Partner pursuant to Section 9.8(c) hereof for the amount
of any such underwriter's discount or other expenses paid out of the gross
proceeds of the Offering. Notwithstanding the immediately preceding sentence,
the General Partner shall have
- 13 -
the right, in its sole and absolute discretion, to treat the contribution to the
Partnership by the General Partner of any proceeds from the Offering in a manner
other than that described in the immediately preceding sentence if, upon the
advice of counsel to the General Partner and/or the Partnership, such
alternative treatment will provide a more favorable federal and/or state tax
consequence to the General Partner and/or the Partnership. The General Partner
shall initially be issued and thereafter shall own Partnership Units in the
amount set forth opposite its name on Exhibit A, which number of Partnership
Units shall be adjusted on such Exhibit A from time to time by the General
Partner to the extent necessary to reflect accurately issuances, exchanges,
redemptions, Capital Contributions, or similar events having an effect on a
Partner's Partnership Units. The Partners hereby acknowledge and agree that the
aggregate initial number of Partnership Units to be issued to the General
Partner shall be exactly equal to the number of shares of Common Stock issued
and outstanding immediately after the Completion of the Offering. Upon any
subsequent sales of shares of Common Stock pursuant to the exercise of the
over-allotment option in connection with the Offering, the General Partner
shall, subject to and in accordance with the terms and conditions of this
Section 6.1, contribute the proceeds of such subsequent sale to the Partnership,
and shall be issued additional Partnership Units in an amount exactly equal to
the number of shares of Common Stock subsequently sold in connection with the
Offering.
6.2 Capital Contributions of the Limited Partners. Concurrent with the
execution of this Agreement, each Limited Partner, pursuant to one or more
Partnership Interests Exchange Agreements, shall contribute to the Partnership,
directly or indirectly, as its initial Capital Contribution, all of such Limited
Partner's right, title and interest in and to the Property Partnerships. Each
Limited Partner shall initially be issued and thereafter shall own Partnership
Units in the amount set forth opposite such Limited Partner's name on Exhibit A,
which number of Partnership Units on such Exhibit A shall be adjusted from time
to time by the General Partner to the extent necessary to reflect accurately
exchanges, redemptions, Capital Contributions, or similar events having an
effect on such Partner's Partnership Units. The Partnership Units issued to each
Limited Partner shall be evidenced by the issuance of a certificate (the "Unit
Certificate") in substantially the form of Exhibit B attached hereto, which Unit
Certificate shall bear the following legend:
"THE UNITS REPRESENTED BY THIS CERTIFICATE OR INSTRUMENT MAY NOT BE
TRANSFERRED, SOLD, ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED
OF UNLESS SUCH TRANSFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION OR OTHER
DISPOSITION
- 14 -
COMPLIES WITH THE PROVISIONS OF THE AMENDED AND RESTATED AGREEMENT OF
LIMITED PARTNERSHIP DATED AS OF JANUARY 17, 1997 (A COPY OF WHICH IS ON
FILE WITH THE PARTNERSHIP). EXCEPT AS OTHERWISE PROVIDED IN SUCH
AGREEMENT, NO TRANSFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION OR OTHER
DISPOSITION OF THE UNITS REPRESENTED BY THIS CERTIFICATE MAY BE MADE
EXCEPT (A) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR (B) IF THE PARTNERSHIP
HAS BEEN FURNISHED WITH A SATISFACTORY OPINION OF COUNSEL FOR THE HOLDER
THAT SUCH TRANSFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION OR OTHER
DISPOSITION IS EXEMPT FROM THE PROVISIONS OF SECTION 5 OF THE ACT AND THE
RULES AND REGULATIONS IN EFFECT THEREUNDER."
On the date of admission of one or more Limited Partners to the Partnership, the
Organizational Limited Partner shall be entitled to a return of his Capital
Contribution, and shall be deemed to have withdrawn from the Partnership.
6.3 General Partner Option to Contribute Additional Capital. If the
Partnership requires funds at any time or from time to time in excess of funds
available to the Partnership through borrowings and prior or additional Capital
Contributions, the General Partner may, but shall not be required to, borrow
such funds from a financial institution or other lender or through public debt
offerings and lend such funds to the Partnership on the same terms and
conditions as are applicable to the General Partner. If, notwithstanding the
foregoing, the Partnership requires funds for any proper Partnership purpose in
excess of any other funds anticipated by the General Partner to be available to
the Partnership (including through borrowings and prior Capital Contributions),
or if the General Partner concludes that borrowings are inappropriate, the
General Partner may, but shall not be required to, raise such additional funds
pursuant to the issuance of shares of its Common Stock (any such issuance which
is made for the purpose of providing additional funds to the Partnership shall
be referred to herein as an "Additional Issuance"). In the event any such
Additional Issuance is consummated, then (i) the General Partner shall
contribute the net amount of cash raised pursuant to such Additional Issuance to
the capital of the Partnership and (ii) the Partnership shall issue additional
Partnership Units ("Additional Partnership Units") to the General Partner, on
the date upon which such funds are contributed to the Partnership, in an amount
equal to that number of Partnership Units which, if such Additional Partnership
Units were redeemed as of their date of issuance by the General Partner for
shares of Common Stock pursuant to Section 10.3 hereof, would result in the
General Partner receiving that number of shares of Common Stock equal to the
number of shares of Common Stock that were issued pursuant to such Additional
Issuance. Notwith-
- 15 -
standing anything contained herein to the contrary, if the proceeds actually
received and thereafter contributed to the Partnership by the General Partner
pursuant to any Additional Issuance as described in this Section 6.3 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 a Capital Contribution to
the Partnership in the amount of the gross proceeds of such issuance and the
Partnership shall be deemed simultaneously to have reimbursed the General
Partner pursuant to Section 9.8(c) hereof for the amount of such underwriter's
discount or other expenses. In addition, in the event that the General Partner
shall issue shares of Common Stock (and/or pay cash out of the net proceeds of
any Additional Issuance) in connection with any subsequent merger, consolidation
or other acquisition, the General Partner may contribute the shares of stock,
assets and/or other consideration received by the General Partner in connection
therewith to the capital of the Partnership in exchange for Additional
Partnership Units in an amount equal to that number of Partnership Units which,
if such Additional Partnership Units were redeemed as of their date of issuance
by the General Partner for shares of Common Stock pursuant to Section 10.3
hereof, would result in the General Partner receiving that number of shares of
Common Stock equal to the number of shares of Common Stock that were issued in
connection with such merger, consolidation or other acquisition and/or such
Additional Issuance. Notwithstanding the foregoing sentence, the General Partner
shall have the right, in its sole discretion, to treat a contribution to the
capital of the Partnership in a manner other than as described above if, upon
the advice of counsel to the General Partner and/or the Partnership, such
alternative treatment will provide a more favorable federal and/or state tax
consequence to the General Partner and/or the Partnership.
6.4 General Partner Option to Issue Additional Partnership Units to
Limited Partners.
(a) Issuance of Additional Partnership Units. At any time after the
date hereof without the consent of any Partner, but subject to the provisions of
Section 13.1 hereof, the General Partner may, upon its determination, which
shall be made in its sole and absolute discretion, that the issuance of
Additional Partnership Units to new or existing limited partners is in the best
commercial interests of the Partnership, cause the Partnership to issue
Additional Partnership Units to and admit as a limited partner in the
Partnership, any Person (an "Additional Limited Partner" herein) in exchange for
the contribution by such Person of cash and/or property desirable to further the
purposes of the Partnership under Article 4 hereof. In the event that
- 16 -
Additional Partnership Units are issued by the Partnership pursuant to this
Section 6.4, the amount of such Partnership Units issued to each Additional
Limited Partner shall, unless otherwise determined by the General Partner in the
exercise of its sole discretion but subject to its fiduciary duty to all Limited
Partners (i) be fixed by agreement between the General Partner and such
Additional Limited Partner in the General Partner's sole discretion or (ii) be
equal to that number of Partnership Units which, if such Additional Partnership
Units were redeemed as of their date of issuance by such Additional Limited
Partner pursuant to Section 10.3 hereof, would result in such Additional Limited
Partner receiving that number of shares of Common Stock equal to (x) the Agreed
Value of any property (as determined by the General Partner, in its sole and
absolute discretion), plus the amount of any cash contributed by the Additional
Limited Partner, as of the date of contribution to the Partnership divided by
(y) the Current Per Share Market Price (computed as of the Trading Day
immediately preceding the date of contribution to the Partnership or such other
date or average of Trading Days as the General Partner may agree with such
Additional Limited Partner in the exercise of its sole discretion). In addition,
the General Partner is hereby authorized to cause the Partnership from time to
time to issue to the Partners (including the General Partner) or other Persons
additional Partnership Units or such other Partnership Interests in one or more
classes, or one or more series of such classes, with such designations,
preferences and relative, participating, optional or other special rights,
powers and duties, including rights, powers and duties which may be senior, pari
passu or junior to OP Units, all as shall be determined by the General Partner
in its sole and absolute discretion subject to Delaware law, including, without
limitation, (i) the allocations of items of Partnership income, gain, loss,
deduction and credit to each such class or series of Partnership Interests; (ii)
the right of each such class or series of Partnership Interests to share in
Partnership distributions; and (iii) the rights of each such class or series of
Partnership Interests upon dissolution and liquidation of the Partnership;
provided that no such additional Partnership Units or other Partnership
Interests shall be issued to the General Partner unless either (A)(1) the
additional Partnership Interests are issued in connection with the issuance of
shares of Common Stock or other shares by the General Partner, which shares have
designations, preferences and other rights such that the economic interests
attributed to such shares are substantially similar to the designations,
preferences and other rights of the additional Partnership Interests issued to
the General Partner in accordance with this Section 6.4, and (2) 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 the
General
- 17 -
Partner, or (B) the additional Partnership Units are issued to all the Partners
in proportion to their respective Percentage Interests. Any Additional Limited
Partner shall be issued a Unit Certificate representing the amount of
Partnership Units issued to such Additional Limited Partner and, in the event
the General Partner issues Partnership Units other than OP Units, indicating the
class, terms, preferences and other restrictions or rights of such Partnership
Unit. The General Partner shall be authorized on behalf of each of the Partners
to amend this Agreement to reflect the issuance of Additional Partnership Units
(including, without limitation, the issuance of new classes of Partnership
Units) and/or the admission of any Additional Limited Partner(s) in accordance
with the provisions of this Section 6.4, and the General Partner shall promptly
deliver a copy of such amendment (which, in the event that new classes of
Partnership Units are issued, shall contain the terms of such new classes of
Partnership Units) to each Limited Partner. 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 interest of the
General Partner and the Partnership (for example, and not by way of limitation,
the issuance of Partnership Units pursuant to an employee purchase plan
providing for employee purchases of Partnership Units at a discount from fair
market value or employee options that have an exercise price that is less than
the fair market value of the Partnership Units, either at the time of issuance
or at the time of exercise).
(b) Issuance of New Securities. After the date hereof, the General
Partner shall not issue any additional shares of Common Stock (other than shares
of Common Stock issued pursuant to Section 10.3 hereof), or rights, options,
warrants or convertible or exchangeable securities containing the right to
subscribe for or purchase shares of Common Stock (collectively, "New
Securities"), other than to all holders of shares of Common Stock, unless (i)
the General Partner shall cause the Partnership to issue to the General Partner
Partnership Interests or rights, options, warrants or convertible or
exchangeable securities of the Partnership having designations, preferences and
other rights, all such that the economic interests are substantially similar to
those of the New Securities, and (ii) the General Partner contributes to the
Partnership the proceeds from the issuance of such New Securities and from the
exercise of rights contained in such New Securities. Without limiting the
foregoing, the General Partner is expressly authorized to issue New Securities
for less than fair market value, and the General Partner is expressly authorized
to cause the Partnership to issue to the General Partner corresponding
Partnership Interests, so long as (x) the General Partner concludes in good
faith that such
- 18 -
issuance is in the interest of the General Partner and the Partnership (for
example, and not by way of limitation, the issuance of shares of Common Stock
and corresponding Units pursuant to an employee stock purchase plan providing
for employee purchases of shares of Common Stock 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 shares of Common Stock, either at the time of
issuance or at the time of exercise), and (y) the General Partner contributes
all proceeds from such issuance and exercise to the Partnership.
6.5 Capital Accounts. A separate capital account (a "Capital Account")
shall be maintained for each Partner in accordance with the Code and the
Regulations promulgated thereunder including, but not limited to, the rules
regarding the maintenance of partners' Capital Accounts set forth in Regulation
Section 1.704-1. Subject to the immediately preceding sentence, there shall be
credited to each Partner's Capital Account: (i) the amount of money contributed
by the Partner to the Partnership (subject, however, in the case of Additional
Issuances of Common Stock, to the specific provisions of Section 6.3 hereof
regarding the amount of the Capital Contribution by the General Partner under
such circumstances), (ii) the Gross Asset Value of any property contributed by
the Partner to the Partnership, (iii) the amount of any Partnership liabilities
assumed by such Partner or which are secured by any property distributed to such
Partner and (iv) the Partner's share of income or gain (or items thereof),
including income and gain exempt from tax. There shall be charged against each
Partner's Capital Account: (w) the amount of money distributed to the Partner by
the Partnership, (x) the Gross Asset Value of any property distributed to the
Partner by the Partnership, (y) the amount of any liabilities of such Partner
assumed by the Partnership or which are secured by any property contributed by
such Partner to the Partnership and (z) the Partner's share of loss and
deduction (or items thereof). To the extent a Partner's Capital Account is
greater than zero, such excess is hereinafter referred to as a "positive
balance". To the extent a Partner's Capital Account is less than zero, said
amount is hereinafter referred to as a "deficit balance".
6.6 Limited Liability. Notwithstanding anything in this Agreement to the
contrary, the personal liability of a Limited Partner arising out of or in any
manner relating to the Partnership shall be limited to and shall not exceed such
Limited Partner's Capital Contribution made or required to be made pursuant to
this Agreement. No Limited Partner shall have any personal liability for
liabilities or obligations of the Partnership, except to the extent of its
Capital Contribution, as aforesaid.
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6.7 Return of Capital. Except as otherwise provided herein, (i) no Partner
shall be required to make any further or additional contributions to the capital
of the Partnership or to lend or advance funds to the Partnership for any
purpose and (ii) no Partner shall be entitled to the return of its capital,
except to the extent, if any, that distributions are made or deemed to be made
to such Partner otherwise than out of Profits pursuant to this Agreement.
6.8 No Interest on Capital Contributions. No interest or additional share
of Profits shall be paid or credited to the Partners on their Capital Accounts,
or on any undistributed Profits or funds left on deposit with the Partnership;
provided, however, that nothing contained herein shall be construed to prevent
or prohibit the payment of interest on account of loans made by the Partners to
the Partnership. Any loans made to the Partnership by a Partner shall not
increase its Capital Contribution or interest in the Profits, Losses or Net Cash
Flow of the Partnership, but shall be a debt due from the Partnership and repaid
accordingly.
6.9 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 among the parties hereto 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.
6.10 Common Stock Option Plans. The Partners hereby acknowledge that prior
to the Offering the General Partner has adopted, and the Partners hereby
acknowledge and agree that from and after the Offering the General Partner may
adopt, without the consent of any Limited Partner, one or more stock option or
incentive plans ("Stock Plans") pursuant to which officers, directors, trustees
and/or employees of the General Partner, the Partnership or any Affiliate of
either of them may acquire shares of Common Stock. On each date on which the
General Partner issues any shares of Common Stock to a person pursuant to a
Stock Plan (i) the consideration paid for each such share of Common Stock shall,
as soon as received by the General Partner, be
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contributed to the capital of the Partnership and (ii) the General Partner shall
be issued Partnership Units in an amount equal to that number of Partnership
Units which, if such Partnership Units were redeemed as of their date of
issuance by the General Partner for shares of Common Stock pursuant to Section
10.3 hereof, would result in the General Partner receiving that number of shares
of Common Stock which are being issued to any such person pursuant to the Stock
Plan. For purposes of this Section 6.10 only, shares of Common Stock issued
subject to forfeiture or other similar restrictions shall be deemed issued upon
the lapse of such restrictions. Notwithstanding anything herein to the contrary,
the mere grant of options to purchase shares of Common Stock pursuant to any
Stock Plan shall not constitute the grant or issuance of shares of Common Stock
for purposes of this Section 6.10.
ARTICLE 7
ALLOCATION OF PROFITS AND LOSSES
7.1 General Allocation of Profits and Losses. Except as otherwise provided
in this Article 7, after giving effect to any and all special allocations set
forth in Sections 7.3 and 7.4 below, all Profits and Losses of the Partnership
(including all items of income and expense entering into the determination of
such Profits and Losses), as finally determined by the Accountants for Federal
income tax purposes for each fiscal year of the Partnership, shall be allocated
to and among the Partners in accordance with their respective Percentage
Interests.
7.2 Allocations with Respect to Transferred Interests. Unless otherwise
required by the Code and/or the Regulations or as agreed to by the General
Partner, in its sole and absolute discretion, any Profits or Losses allocable to
an additional Partnership Interest issued during any year or any fiscal quarter
or to a Partnership Interest which has been transferred during any year shall be
allocated among the Persons who were holders of such Partnership Interest during
such year in the manner described in Section 13.3(c) below.
7.3 Regulatory Allocations.
(a) Minimum Gain Chargeback. Notwithstanding any other provision of
this Agreement (except as provided in Section 7.3(b) below), if there is a
net decrease in Minimum Gain for a Partnership taxable year, each Partner
shall be allocated, before any other allocation of Partnership items for
such taxable year, items of gross income and gain for such year (and, if
necessary, for subsequent years) in
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proportion to, and to the extent of, the amount of such Partner's share of
the net decrease in Minimum Gain during such year. The income allocated
pursuant to this Section 7.3(a) in any taxable year shall consist first of
gains recognized from the disposition of property subject to one or more
nonrecourse liabilities of the Partnership, and any remainder shall
consist of a pro rata portion of other items of income or gain of the
Partnership.
(b) Exceptions to Section 7.3(a). The allocation otherwise required
pursuant to Section 7.3(a) shall not apply to a Partner to the extent
that: (a) such Partner's share of the net decrease in Minimum Gain is
caused by a guarantee, refinancing or other change in the instrument
evidencing a nonrecourse debt of the Partnership which causes such debt to
become a partially or wholly recourse debt or a Partner Nonrecourse Debt,
and such Partner bears the economic risk of loss (within the meaning of
Treasury Regulation Section 1.752-2) for such changed debt; (b) such
Partner's share of the net decrease in Minimum Gain results from the
repayment of a nonrecourse liability of the Partnership, which repayment
is made using funds contributed by such Partner to the capital of the
Partnership; (iii) the IRS, pursuant to Treasury Regulation Section
1.704-2(f)(4), waives the requirement of such allocation in response to a
request for such waiver made by the General Partner on behalf of the
Partnership (which request the General Partner may or may not make, in its
sole discretion, if it determines that the Partnership would be eligible
therefor); or (iv) additional exceptions to the requirement of such
allocation are established by revenue rulings issued by the IRS pursuant
to Treasury Regulation Section 1.704-2(f)(5), which exceptions apply to
such Partner, as determined by the General Partner in its sole discretion.
(c) Qualified Income Offset. Notwithstanding any other provision of
this Agreement, if a Partner unexpectedly receives an adjustment,
allocation or distribution described in Regulation Section
1.704-1(b)(2)(ii)(d)(4),(5) or (6) that causes or increases an Excess
Deficit Capital Account Balance with respect to such Partner, items of
Partnership gross income and gain shall be specially allocated to such
Partner in an amount and manner sufficient to eliminate such Excess
Deficit Capital Account Balance as quickly as possible.
(d) Gross Income Allocation. If at the end of any Partnership
taxable year, a Partner has an Excess Deficit Capital Account Balance,
such Partner shall be specially allocated items of Partnership income or
gain in an amount
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and manner sufficient to eliminate such Excess Deficit Capital Account
Balance as quickly as possible.
(e) Partner Nonrecourse Debt. Notwithstanding any other provision of
this Agreement, any item of Partnership Loss, deduction or expenditures
described in Code Section 705(a)(2)(B) that is attributable to a Partner
Nonrecourse Debt shall be allocated to those Partners that bear the
economic risk of loss for such Partner Nonrecourse Debt, and among such
Partners in accordance with the ratios in which they share such economic
risk, determined in accordance with Treasury Regulation Section
1.704-2(i). If there is a net decrease for a Partnership taxable year in
any Partner Nonrecourse Debt Minimum Gain of the Partnership, each Partner
with a share of such Partner Nonrecourse Debt Minimum Gain as of the
beginning of such year shall be allocated items of gross income and gain
in the manner and to the extent provided in Treasury Regulation Section
1.704-2(i)(4).
(f) Interpretation. The foregoing provisions of this Section 7.3 are
intended to comply with Treasury Regulation Sections 1.704-1(b) and
1.704-2 and shall be interpreted consistently with this intention. Any
terms used in such provisions that are not specifically defined in this
Agreement shall have the meaning, if any, given such terms in the
Regulations cited above.
(g) Curative Allocations. If any allocation of gain, income, loss,
expense or any other item is made pursuant to Section 7.3(a), 7.3(c),
7.3(d) or 7.3(e) of this Agreement (the "Regulatory Allocations") with
respect to one or more Partners (the "Deficit Partners"), then the balance
of such items for the current and all subsequent fiscal years shall be
allocated among the Partners other than the Deficit Partners as if such
items were allocated among all the Partners (including the Deficit
Partners) without regard to this Section 7.3, until the amount of such
items that would have been allocated to the Deficit Partners but for the
Regulatory Allocations equal the amount allocated to the Deficit Partners
pursuant to the Regulatory Allocations.
7.4 Special Allocations with Respect to Contributed or Revalued Property.
Notwithstanding anything contained herein to the contrary, taxable income, gain,
loss and deduction with respect to any Partnership property that is contributed
to the Partnership by a Partner shall be shared among the Partners for income
tax purposes pursuant to Regulations promulgated under Section 704(c) of the
Code, so as to take into account the variation, if any, between the basis of the
property to the
- 23 -
Partnership and its initial Gross Asset Value. With respect to Partnership
property that is initially contributed to the Partnership upon its formation,
such variation between basis and initial Gross Asset Value shall be taken into
account under the "traditional method" as described in Treasury Regulation
Section 1.704-3(b), unless otherwise determined by the General Partner and the
contributing Partner. With respect to properties subsequently contributed to the
Partnership, the Partnership shall account for such variation under any method
approved under Section 704(c) of the Code and the applicable regulations as
chosen by the General Partner. In the event the Gross Asset Value of any
Partnership asset is adjusted pursuant to subparagraph (b) of the definition of
Gross Asset Value (as provided in Article 1 of this Agreement), subsequent
allocations of tax items with respect to such asset shall take account of the
variation, if any, between the adjusted basis of such asset and its Gross Asset
Value in the same manner as under Section 704(c) of the Code and the applicable
regulations.
7.5 Allocations with Respect to Partnership Units other than OP Units. In
the event the General Partner issues additional classes of Partnership Units
other than OP Units to Limited Partners, then the General Partner shall
determine, in its sole discretion, the Profits and Losses attributable to each
class and shall allocate to Profits and Losses of each class of Partnership
Units among the Partners in such class in proportion to their respective
Percentage Interests in such class, after giving effect to any and all special
allocations set forth in Sections 7.3 and 7.4 above.
ARTICLE 8
DISTRIBUTIONS
8.1 Distribution of Net Cash Flow. Net Cash Flow of the Partnership, if
any, shall be distributed to and among the Partners as follows:
(a) If such Net Cash Flow has not arisen pursuant to a Liquidation
of the Partnership, such Net Cash Flow shall be distributed to and among
the Partners in accordance with their respective Percentage Interests; or
(b) If such Net Cash Flow has arisen pursuant to a Liquidation of
the Partnership, such Net Cash Flow shall be distributed to and among the
Partners having positive balances in their Capital Accounts (after any and
all allocations of Profits and Losses and prior distributions
- 24 -
are reflected in such Capital Accounts), in proportion to and to the
extent of such positive balances.
Net Cash Flow shall be distributed to the Partners in such amounts and at such
intervals as the General Partner, in its sole discretion, may determine, but no
less frequently than quarterly. With respect to each and every distribution of
Net Cash Flow to the Partners hereunder, the General Partner shall distribute
such Net Cash Flow only to those Partners who are Partners on the Partnership
Record Date and whose Partnership Units were outstanding during the period to
which such distribution relates and, with respect to those Partners who were
issued additional Partnership Units during such period, the General Partner
shall distribute Net Cash Flow (i) on a pro-rated basis based upon the number of
days during such period that such Partners held such additional Partnership
Units or (ii) on such other reasonable basis as determined by the General
Partner in its sole discretion; provided, however, in no event may a Partner
receive a distribution of Net Cash Flow with respect to any particular
Partnership Unit if such Partner is entitled to receive a distribution out of
such Net Cash Flow with respect to one or more shares of Common Stock for which
such Partnership Unit has been redeemed. Notwithstanding the foregoing, the
General Partner shall take such reasonable efforts, as determined by it in its
sole and absolute discretion and consistent with its qualification as a REIT, to
cause the Partnership to distribute sufficient amounts to enable the General
Partner to pay stockholder dividends that will (i) satisfy the REIT Requirements
and (ii) avoid any federal income or excise tax liability of the General
Partner.
8.2 Distributions in Kind. No right is given to any Partner to demand and
receive property or cash. The General Partner may determine, in its sole and
absolute discretion, to make a distribution in kind to the Partners of
Partnership assets, and such assets shall be distributed in such a fashion as to
ensure that the fair market value of such assets is distributed and allocated in
accordance with Section 8.1 hereof.
8.3 Withholding. Each Limited Partner hereby authorizes the Partnership to
withhold from or pay on behalf of or with respect to such Limited Partner any
amount of federal, state, local or foreign taxes that the General Partner
determines or reasonably believes that the Partnership is required to withhold
or pay with respect to any amount distributable or allocable to such Limited
Partner pursuant to this Agreement, including, without limitation, any taxes
required to be withheld or paid by the Partnership pursuant to Code Sections
1441, 1442, 1445 or 1446. Any and all amounts withheld pursuant to this Section
8.3 with respect to any allocation, payment or distribution to any
- 25 -
Partner hereunder shall be treated as amounts distributed to such Partner
pursuant to Section 8.1 hereof for all purposes under this Agreement. If any
amount is withheld by the Partnership pursuant to this Section 8.3 with respect
to a particular Partner and such amount would not have been distributed to such
Partner pursuant to Section 8.1 hereof at any time on or before the date it is
withheld, then such Partner shall contribute to the capital of the Partnership
an amount equal to the amount so withheld as soon as practicable after the
delivery by the General Partner to such Partner of a notice requesting such
contribution to the Partnership. The General Partner, on behalf of the
Partnership, shall have the right to offset any obligation of a Partner to
contribute additional funds to the Partnership pursuant to the immediately
preceding sentence of this Section 8.3 against any future distributions due to
such Partner under Section 8.1 hereof.
8.4 Distributions with Respect to Partnership Units other than OP Units.
Notwithstanding the foregoing provisions of this Article 8, in the event the
General Partner issues additional classes of Partnership Units other than OP
Units to Limited Partners, then the General Partner shall determine, in its sole
discretion, the amount of distributions of Net Cash Flow attributable to each
class and shall distribute such Net Cash Flow to each class of Partnership Units
among the Partners in such class in proportion to their respective Percentage
Interests in such class or otherwise required pursuant to the terms of such
Partner's Unit Certificates.
ARTICLE 9
MANAGEMENT
9.1 Management of Partnership Affairs. Except as otherwise specifically
provided in this Agreement, the General Partner shall have full, exclusive and
complete responsibility and discretion in the management and control of the
business and affairs of the Partnership and shall make all decisions affecting
the Partnership's business and affairs. Subject to the foregoing, the General
Partner shall have all the rights, powers and obligations of a general partner
as provided in the Act, and, except as otherwise provided, any action taken by
the General Partner (in its capacity as such) shall constitute the act of and
serve to legally bind the Partnership. Persons dealing with the Partnership
shall be entitled to rely conclusively on the power and authority of the General
Partner as set forth in this Agreement.
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9.2 Powers and Authorities of the General Partner. Except as otherwise
specifically provided in this Agreement, and subject to Section 9.3 hereof, the
General Partner is hereby granted the right, power and authority to do on behalf
of the Partnership all things which, in its best business judgment, are
necessary, proper or desirable to carry out its duties and responsibilities,
including but not limited to, the right, power and authority:
(a) To manage, control, invest, reinvest, acquire by purchase, lease
or otherwise, develop, expand, sell, contract to purchase or sell, grant,
obtain or exercise options to purchase, options to sell or conversion
rights, assign, transfer, convey, deliver, endorse, exchange, pledge,
mortgage, abandon, improve, repair, maintain, insure, lease for any term
and otherwise deal with any and all property of whatsoever kind and
nature, and wheresoever situated, in furtherance of the purposes of the
Partnership;
(b) To acquire, directly or indirectly, interests in real estate of
any kind and of any type, and any and all kinds of interests therein, and
to determine the manner in which title thereto is to be held; to manage,
insure against loss, protect and subdivide any of the real estate,
interests therein or parts thereof; to improve, develop or redevelop and
expand any such real estate; to participate in the ownership and
development of any property; to dedicate for public use, to vacate any
subdivisions or parts thereof, to resubdivide, to contract to sell, to
grant options to purchase or lease, to sell on any terms; to convey, to
mortgage, pledge or otherwise encumber said property, or any part thereof;
to lease said property or any part thereof from time to time, upon any
terms and for any period of time, and to renew or extend leases, to amend,
change or modify the terms and provisions of any leases and to grant
options to lease and options to renew leases and options to purchase; to
partition or to exchange said real property, or any part thereof, for
other real or personal property; to grant easements or charges of any
kind; to release, convey or assign any right, title or interest in or
about or easement appurtenant to said property or any part thereof; to
construct and reconstruct, remodel, alter, repair, add to or take from
buildings on said premises; to insure any Person having an interest in or
responsibility for the care, management or repair of such property; to
direct the trustee of any land trust to mortgage, lease, convey or
contract to convey the real estate held in such land trust or to execute
and deliver deeds, mortgages, notes, and any and all documents pertaining
to the property subject to such land trust or in any matter regarding such
trust; to execute
- 27 -
assignments of all or any part of the beneficial interest in such land
trust;
(c) To employ, engage or contract with or dismiss from employment or
engagement Persons to the extent deemed necessary by the General Partner
for the operation and management of the Partnership business, including
but not limited to, contractors, subcontractors, engineers, architects,
surveyors, mechanics, consultants, accountants, attorneys, insurance
brokers, real estate brokers and others;
(d) To enter into contracts on behalf of the Partnership;
(e) To borrow money, procure loans and advances from any Person for
Partnership purposes, and to apply for and secure, from any Person, credit
or accommodations; to contract liabilities and obligations, direct or
contingent and of every kind and nature with or without security; and to
repay, discharge, settle, adjust, compromise or liquidate any such loan,
advance, credit, obligation or liability;
(f) To pledge, hypothecate, mortgage, assign, deposit, deliver,
enter into sale and leaseback arrangements or otherwise give as security
or as additional or substitute security, or for sale or other disposition
any and all Partnership property, tangible or intangible, including, but
not limited to, real estate and beneficial interests in land trusts, and
to make substitutions thereof, and to receive any proceeds thereof upon
the release or surrender thereof; to sign, execute and deliver any and all
assignments, deeds and other contracts and instruments in writing; to
authorize, give, make, procure, accept and receive moneys, payments,
property, notices, demands, vouchers, receipts, releases, compromises and
adjustments; to waive notices, demands, protests and authorize and execute
waivers of every kind and nature; to enter into, make, execute, deliver
and receive written agreements, undertakings and instruments of every kind
and nature; to give oral instructions and make oral agreements; and
generally to do any and all other acts and things incidental to any of the
foregoing or with reference to any dealings or transactions which any
attorney may deem necessary, proper or advisable;
(g) To acquire and enter into any contract of insurance which the
General Partner deems necessary or appropriate for the protection of the
Partnership, for the conservation of the Partnership's assets or for any
purpose convenient or beneficial to the Partnership;
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(h) To conduct any and all banking transactions on behalf of the
Partnership; to adjust and settle checking, savings, and other accounts
with such institutions as the General Partner shall deem appropriate; to
draw, sign, execute, accept, endorse, guarantee, deliver, receive and pay
any checks, drafts, bills of exchange, acceptances, notes, obligations,
undertakings and other instruments for or relating to the payment of money
in, into, or from any account in the Partnership's name; to execute,
procure, consent to and authorize extensions and renewals of the same; to
make deposits and withdraw the same and to negotiate or discount
commercial paper, acceptances, negotiable instruments, bills of exchange
and dollar drafts;
(i) To demand, ▇▇▇ for, receive, and otherwise take steps to collect
or recover all debts, rents, proceeds, interests, dividends, goods,
chattels, income from property, damages and all other property, to which
the Partnership may be entitled or which are or may become due to the
Partnership from any Person; to commence, prosecute or enforce, or to
defend answer or oppose, contest and abandon all legal proceedings in
which the Partnership is or may hereafter be interested; and to settle,
compromise or submit to arbitration any accounts, debts, claims, disputes
and matters which may arise between the Partnership and any other Person
and to grant an extension of time for the payment or satisfaction thereof
on any terms, with or without security;
(j) To make arrangements for financing, including the taking of all
action deemed necessary or appropriate by the General Partner to cause any
approved loans to be closed;
(k) To take all reasonable measures necessary to insure compliance
by the Partnership with applicable arrangements, and other contractual
obligations and arrangements entered into by the Partnership from time to
including periodic reports as required to lenders and using all due
diligence to insure that the Partnership is in compliance with its
contractual obligations;
(l) To maintain the Partnership's books and records; and
(m) To prepare and deliver, or cause to be prepared and delivered by
the Partnership's Accountants, all financial and other reports with
respect to the operations of the Partnership, and preparation and filing
of all Federal and state tax returns and reports.
- 29 -
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.
9.3 Major Decisions.
The General Partner shall not, without the prior consent of holders
of at least eighty-five percent (85%) of the Partnership Units taken as a single
class, on behalf of the Partnership, undertake any of all following actions:
(a) Cause or permit the merger of the Partnership into any Person
pursuant to a transaction in which the Partnership is not the surviving
entity, or take any other action which may have the effect of the
foregoing;
(b) Dissolve, liquidate or wind-up the Partnership; or
(c) Convey or otherwise transfer all or substantially all of the
Partnership's assets in one or a series of transactions.
9.4 Restrictions on General Partner's Authority.
(a) The General Partner may not take any action in contravention of
this Agreement, including, without limitation:
(i) Take any action that would make it impossible to carry on
the ordinary business of the Partnership, except as otherwise provided in
this Agreement;
(ii) Admit a Person as a Partner, except as otherwise provided
in this Agreement;
(iii) Perform any act that would subject a Limited Partner to
liability as a general partner in any jurisdiction or any other liability
except as provided herein or under the Act; or
(iv) Enter into any contract, mortgage, loan or other
agreement that prohibits or restricts, or has the effect of prohibiting or
restricting, the ability of a
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Limited Partner to exercise its Redemption Rights in full, except with the
written consent of such Limited Partner.
(b) The General Partner may not, without the consent of all of the
Limited Partners, change its policy of holding its assets and conducting its
business solely through the Partnership.
9.5 Engagements by the Partnership. The General may engage, on behalf and
at the expense of the Partnership, such professional persons, firms or
corporations as the General Partner in its reasonable judgment shall deem
advisable for the conduct and operation of the business of the Partnership,
including, without limitation, brokers, mortgage bankers, lawyers, accountants,
architects, engineers, consultants, contractors and purveyors of other such
services for the Partnership on such terms and for such compensation or costs as
the General Partner, in its reasonable judgment, shall determine.
9.6 Engagement of Affiliates. The General Partner may, on behalf and at
the expense of the Partnership, engage the General Partner or a firm in which
the General Partner, a Limited Partner, or a Partner, officer, director,
stockholder or Affiliate of any of them, has an interest, to render services to
the Partnership and/or the assets of the Partnership, provided that the fees or
other compensation payable for such services are specifically authorized by the
terms of this Agreement or are comparable to those prevailing in arm's-length
transactions for similar services and are approved by the Board of Directors.
9.7 Liability of the General Partner. The General Partner and its
Affiliates, officers, directors, agents and employees shall not be liable,
responsible or accountable in damages or otherwise to the Partnership or any of
the Partners or their successors or assigns for any acts or omissions performed
or omitted within the scope of its authority as General Partner, or otherwise
conferred on the General Partner and such Affiliates, officers, directors,
agents and employees by this Agreement, provided that the General Partner or
such Affiliates, officers, directors, agents or employees shall act in good
faith and shall not be guilty of willful misconduct or gross negligence.
9.8 Reimbursement of Certain Expenses of the General Partner.
(a) Except as provided in this Section 9.8 and elsewhere in this
Agreement (including the provisions of Articles 7 and 8 regarding
distributions, payments and allocations to which it may be entitled), the
General
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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 expenses it incurs relating to the ownership
and operation of, or for the benefit of, the Partnership, including
without limitation, any expenses incurred by the General Partner in
connection with the management by the General Partner of any property
owned by any Property Partnership; provided, however, that the amount of
any such reimbursement shall be reduced by any interest earned by the
General Partner with respect to bank accounts or other instruments or
accounts held by it on behalf of the Partnership. The Limited Partners
acknowledge that the General Partner's sole business is the ownership of
interests in and operation of the Partnership and that all of the General
Partner's expenses are incurred for the benefit of the Partnership.
(c) The General Partner shall be deemed to be reimbursed in
accordance with the provisions of Sections 6.1 and 6.3 hereof for all
expenses it incurs relating to the Offering and any other offering and/or
issuance of Additional Partnership Units, Partnership Interests and/or
Common Stock as described in Sections 6.1 and 6.3 hereof.
9.9 Outside Activities of the General Partner. The General Partner shall
not directly or indirectly enter into or conduct any business, other than in
connection with the ownership, acquisition and disposition of Partnership
Interests as a General Partner and the management of the business of the
Partnership, and such activities as are incidental to same. The General Partner
shall not, directly or indirectly, participate in or otherwise acquire any
interest in any real or personal property, except its Partnership Interest as a
General Partner and as otherwise provided in this Agreement, and other than such
short-term liquid investments, bank accounts or similar instruments as it deems
necessary to carry out its responsibilities contemplated under this Agreement.
9.10 Operation in Accordance with REIT Requirements. The Partners
acknowledge and agree that the Partnership shall be operated in a manner that
will enable the General Partner to (i) satisfy the REIT Requirements and (ii)
avoid the imposition of any federal income or excise tax liability. The
Partnership shall avoid taking any action which would result in the General
Partner ceasing to satisfy the REIT Requirements or would result in the
imposition of any federal income or excise tax liability on the General Partner.
- 32 -
9.11 Title Holder. To the extent allowable under applicable law, title to
all or any part of the properties of the Partnership may be held in the name of
the Partnership or any other individual, corporation, partnership, trust or
otherwise, 100% of the beneficial interest in which shall at all times be vested
in the Partnership. Any such title holder shall perform any and all of its
respective functions to the extent and upon such terms and conditions as may be
determined from time to time by the General Partner.
ARTICLE 10
RIGHTS AND OBLIGATIONS OF LIMITED PARTNERS
10.1 No Participation in Management of Partnership; Rights of Limited
Partners to Certain Documents.
(a) The Limited Partners shall have such rights as are enumerated as
rights of limited partners under the Act. The Limited Partners, in such
capacity, shall not take part in, or interfere in any manner, with the
conduct or control of the Partnership's business and shall have no right
or authority to act for or bind the Partnership, said powers being vested
solely and exclusively in the General Partner. Except as specifically set
forth in this Agreement, the Limited Partners, in their capacities as
such, shall not have any right or power whatsoever to take any action with
respect to the conduct or control of the Partnership or its business
including, but not limited to, any right to vote on, or otherwise approve,
any matters or decisions, whether material, major or otherwise, in
connection with the business of the Partnership.
(b) In addition to any other rights provided in this Agreement or by
the Act, and except as limited by Section 10.1(c) below, each Limited
Partner shall have the right, for a purpose reasonably related to such
Limited Partner's interest as a limited partner in the Partnership, upon
written demand with a statement of the purpose of such demand and at such
Limited Partner's own expense:
(i) to obtain a copy of the most recent annual and quarterly
reports filed with the Securities and Exchange Commission by
the General Partner pursuant to the Securities Exchange Act of
1934, as amended, and each report sent to the stockholders of
the General Partner;
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(ii) to obtain a copy of the Partnership's federal, state and local
income tax returns for each fiscal year of the Partnership;
(iii) to obtain a current list of the name and last known business,
residence or mailing address of each Partner;
(iv) to obtain a copy of this Agreement and the Certificate and all
amendments thereto, together with executed copies of all
powers of attorney pursuant to which this Agreement, the
Certificate and all amendments thereto have been executed; and
(v) to obtain true and full information regarding the amount of
cash and a description and statement of any other property or
services contributed by each Partner and which each Partner
has agreed to contribute in the future, and the date on which
each became a Partner.
(c) Notwithstanding any other provisions of Section 10.1(b), the
General Partner may keep confidential from the Limited Partners, for such
period of time as the General Partner determines in its sole and absolute
discretion to be reasonable, any information that (i) the General Partner
believes to be in the nature of trade secrets or other information the
disclosure of which the General Partner in good faith believes is not in
the best interests of the Partnership or the General Partner or (ii) the
Partnership or the General Partner is required by law or by agreements
with unaffiliated third parties to keep confidential.
10.2 Withdrawal, Retirement, Death, Incompetency, Insolvency or
Dissolution of a Limited Partner. A Limited Partner shall have no right to
withdraw, retire or resign from the Partnership. The death, incompetency,
insolvency or dissolution of a Limited Partner shall not terminate the
Partnership. Upon the death of a Limited Partner, his or her executor,
administrator or successor in interest shall have all of the rights and duties
of a Limited Partner for the purpose of settling his or her estate.
10.3 Redemption Rights.
(a) Grant of Rights. The General Partner does hereby grant to the
Limited Partners and the Limited Partners do hereby accept the right, but
not the obligation (such right shall be referred to hereinafter sometimes
as the "Redemption Rights"), to require the Partnership to redeem all or
part of their Partnership Units for shares of Common
- 34 -
Stock and/or cash, at any time or from time to time after the date which
is one (1) year after the date of this Agreement, on the terms and subject
to the conditions and restrictions contained in this Section 10.3.
(b) Delivery of Exercise Notices. Any one or more Limited Partners
("Exercising Partners") may, subject to the limitations set forth in this
Section 10.3, deliver to the General Partner written notice in the form
attached to the Unit Certificate as Attachment 1 (the "Exercise Notice")
pursuant to which such Exercising Partners elect to exercise their
Redemption Rights with respect to all or any portion of their Partnership
Units. The Exercise Notice shall specify the specific number of
Partnership Units which the Limited Partner intends to require the
Partnership to redeem for shares of Common Stock and the specific number
of Partnership Units which the Limited Partner intends to require the
Partnership to redeem for cash. Only whole numbers of Partnership Units
may be redeemed. Once delivered, the Exercise Notice shall be irrevocable,
subject to payment by the General Partner of shares of Common Stock and/or
cash in respect of such Partnership Units in accordance with the terms
hereof.
(c) Assumption by General Partner. Notwithstanding anything
contained herein to the contrary, the General Partner may, in its sole and
absolute discretion, assume directly the obligation with respect to and
satisfy an Exercising Partner's exercise of a Redemption Right by paying
to the Exercising Partner, at the General Partner's election, shares of
Common Stock and/or cash, as determined in accordance with the provisions
of Section 10.3(e) below, whereupon the General Partner shall acquire the
Offered Units and shall be treated for all purposes of this Agreement as
the owner of such Offered Units. In the event the General Partner shall
exercise its right to satisfy the Redemption Right in the manner described
in the preceding sentence, the Partnership shall have no obligation to pay
any amount to the Exercising Partner with respect to such Exercising
Partner's exercise of the Redemption Right, and each of the Exercising
Partner, the Partnership and the General Partner shall treat the
transaction between the General Partner and the Exercising Partner as a
sale of the Offered Units to the General Partner for federal income tax
purposes.
(d) Limitation on Exercise of Redemption Rights. Redemption Rights
may be exercised at any time and from time to time after the date which is
one (1) year after the date of this Agreement, subject to the following
limitations:
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(i) A Limited Partner may not exercise its Redemption Rights
pursuant to any one particular Exercise Notice for less
than One Thousand (1,000) Partnership Units or, if such
Limited Partner holds less than One Thousand (1,000)
Partnership Units, all of the Partnership Units held by
such Limited Partner;
(ii) A Limited Partner shall not have the right to exercise
its Redemption Rights hereunder if, in the opinion of
counsel selected by the General Partner, in its sole and
absolute discretion, such exercise and/or issuance of
shares of Common Stock may or would (A) violate the
General Partner's Articles of Incorporation, as amended
from time to time, (B) cause the General Partner to fail
any one or more of the REIT Requirements or (C)
constitute a violation of applicable securities laws;
and
(iii) Each Limited Partner acknowledges and agrees that the
issuance of shares of Common Stock pursuant to the
Redemption Rights will not be registered under the
Securities Act of 1933, as amended (the "Act"), or any
state securities laws. Accordingly, shares of Common
Stock issued to such Limited Partner may be required to
be held indefinitely and the General Partner shall have
no obligation to register such shares under the Act or
any state securities laws unless required to do so
pursuant to a separate written agreement entered into by
the General Partner at the time of the issuance. In
addition, such Limited Partner will be required to meet
such other requirements and to provide such other
information and representations as the General Partner
may require, which are required in the opinion of its
counsel to lawfully allow it to issue such shares
without registration under the Act and any applicable
state securities laws. Each Limited Partner acknowledges
that the certificates representing shares of Common
Stock issued will also bear a legend with respect to any
restrictions on transfer required in the opinion of
counsel for the
- 36 -
General Partner. The General Partner acknowledges that
the Limited Partners have been granted the right, in
certain circumstances and subject to certain
limitations, to require the registration under the Act
of the shares of Common Stock issued pursuant to the
Redemption Rights.
(e) Computation of Number of Exchange Shares and/or Cash To Be Paid.
Each Partnership Unit which is to be redeemed for shares of Common Stock
shall be redeemed for one share of Common Stock, as adjusted from time to
time as provided in Section 10.3(i). Each Partnership Unit which is to be
redeemed for cash shall be redeemed for an amount of cash equal to the
Current Per Share Market Price (determined as of the Trading Day
immediately preceding the date upon which the closing of the redemption of
Offered Units is to occur). Notwithstanding anything contained herein to
the contrary, the General Partner, in its sole and absolute discretion,
shall have the right either (i) to deliver shares of Common Stock to each
Exercising Partner in lieu of all or any portion of the cash requested by
such Exercising Partner, the number of which shares of Common Stock shall
be determined pursuant to the first sentence of this Section 10.3(e) or
(ii) to cause the Partnership to pay cash to each Exercising Partner in
lieu of all or any portion of the number of shares of Common Stock
requested by such Exercising Partner, the amount of such cash per
Partnership Unit shall be determined pursuant to the second sentence of
this Section 10.3(e). The General Partner shall not be required to issue
fractions of shares of Common Stock in return for Partnership Units. If
more than one Partnership Unit shall be requested to be redeemed at the
same time by the same Limited Partner, the number of full shares of Common
Stock that shall be issuable upon the redemption thereof shall be computed
on the basis of the aggregate number of shares of Common Stock represented
by the Partnership Units so presented. If any fraction of a share of
Common Stock would, except for the provisions of this Section 10.3(e), be
issuable on the redemption of any Partnership Units (or specified portion
thereof), the General Partner shall pay an amount in cash equal to the
Current Per Share Market Price (determined as of the Trading Day
immediately preceding the date upon the closing of the Redemption of the
Offered Units is to occur), multiplied by such fraction.
(f) Closing; Delivery of Election Notice. The closing of the
redemption of Offered Units shall, unless otherwise mutually agreed, be
held at the principal offices of the
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General Partner, on the date agreed to by the General Partner and the
Exercising Partners, which date shall in no event be later than: (i) ten
(10) business days after the date of delivery of the Exercise Notice to
the General Partner or (ii) the first date upon which all legal and other
conditions with respect to such redemption have been satisfied (which
shall include the expiration or termination of any applicable waiting
periods).
(g) Closing Deliveries. At the closing of the redemption of Offered
Units, (i) the Exercising Partners shall execute and deliver (A) proper
instruments of transfer and assignment of the Offered Units, (B) a Unit
Certificate or Unit Certificates representing the number of Offered Units
to be so redeemed and (C) representations and warranties with respect to
their due authority to sell all of the right, title and interest in and to
such Offered Units to the General Partner and, with respect to the status
of the Offered Units, that such Offered Units are free and clear of all
liens, claims and encumbrances whatsoever, and (ii) the General Partner
shall (A) if shares of Common Stock are to be issued, execute and deliver
representations and warranties with respect to its due authority to issue
the shares of Common Stock to be received in the exchange; deliver an
opinion of counsel for the General Partner, reasonably satisfactory to the
Exercising Partners, to the effect that such shares of Common Stock have
been duly authorized, are validly issued, fully-paid and non-assessable;
and deliver a stock certificate or certificates evidencing the shares of
Common Stock to be issued and registered in the name(s) of the Exercising
Partner(s) or its or their designee(s), and/or (B) if cash is to be paid
for Partnership Units, deliver a check in the amount of any cash due to
the Exercising Partner(s) at such closing. If any Exercising Partner shall
have delivered a Unit Certificate or Unit Certificates representing a
number of Partnership Units in excess of the number of Offered Units, the
Partnership shall issue to such Exercising Partner, at the expense of the
Partnership, a new Unit Certificate covering the number of Partnership
Units representing the unredeemed portion of the Unit Certificate or Unit
Certificates so surrendered, which new Unit Certificate shall entitle the
holder thereof to such rights of ownership of Partnership Units to the
same extent as if the Unit Certificate covering such unredeemed
Partnership Units had not been surrendered for redemption.
(h) Term of Rights. Unless sooner terminated, the rights of the
parties with respect to the Redemption Rights shall commence as of the
date which is one (1) year after
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the date of this Agreement and lapse for all purposes and in all respects
upon the termination of the Partnership; provided, however, that the
parties hereto shall continue to be bound by an Exercise Notice delivered
to the General Partner prior to such termination.
(i) Covenants of the General Partner. To facilitate the General
Partner's ability to fully perform its obligations hereunder, the General
Partner covenants and agrees as follows:
(i) At all times during the pendency of the Redemption
Rights, the General Partner shall reserve for issuance
such number of shares of Common Stock as may be
necessary to enable the General Partner to issue such
shares in full exchange for all Partnership Units held
by the Limited Partners which are from time to time
issued and outstanding;
(ii) During the pendency of the Redemption Rights, each
Limited Partner shall receive in a timely manner all
reports and/or other communications transmitted from
time to time by the General Partner to its shareholders
generally; and
(iii) In case the General Partner shall issue rights or
warrants to all holders of shares of its Common Stock
entitling them to subscribe for or purchase shares of
Common Stock at a price per share less than the Current
Per Share Market Price as of the date immediately prior
to the date of such issuance, the General Partner shall
also issue to each holder of a Partnership Unit such
number of rights or warrants, as the case may be, as he
would have been entitled to receive had he required the
Partnership to redeem his Partnership Units immediately
prior to the record date for such issuance by the
General Partner.
(iv) In case the outstanding shares of Common Stock shall be
subdivided into a greater number of shares, the number
of shares of Common Stock for which each Partnership
Unit thereafter may be redeemed shall be increased
proportionately, and, conversely, in case outstanding
shares of Common Stock each shall
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be combined into a smaller number of shares, the number
of shares of Common Stock for which each Partnership
Unit thereafter may be redeemed shall be reduced
proportionately, such increase or reduction as the case
may be, to become effective immediately after the
opening of business on the Trading Day following the day
upon which such subdivision or combination becomes
effective.
(v) In case shares of Common Stock shall be changed into the
same or a different number of shares of any class or
classes of shares of beneficial interest, whether by
capital reorganization, reclassification or otherwise
(other than a subdivision or combination of shares or a
stock dividend described in Section 10.3(i)(iv) above)
then and in each such event the Limited Partners shall
have the right thereafter to require the Partnership to
redeem their Partnership Units for the kind and amount
of shares and other securities and property which would
have been received upon such reorganization,
reclassification or other change by holders of the
number of shares of Common Stock for which the
Partnership Units might have been redeemed immediately
prior to such reorganization, reclassification or
change.
(vi) The General Partner may, but shall not be required to,
make such adjustments to the number of shares of Common
Stock issuable upon redemption of a Partnership Unit, in
addition to those required by paragraphs (iii), (iv) and
(v) of this Section 10.3(i), as the Board of Directors
considers to be advisable in order that any event
treated for Federal income tax purposes as a dividend of
stock or stock rights shall not be taxable to the
recipients. The Board of Directors shall have the power
to resolve any ambiguity or correct any error in the
adjustments made pursuant to this Section 10.3(i) and
its actions in so doing shall be final and conclusive.
(j) Limited Partners' Covenant. Each Limited Partner covenants and
agrees with the General Partner that all Offered Units tendered to the
General Partner in accordance
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with the exercise of Redemption Rights herein provided shall be delivered
to the General Partner free and clear of all liens, claims and
encumbrances whatsoever and should any such liens, claims and/or
encumbrances exist or arise with respect to such Offered Units, the
General Partner shall be under no obligation to acquire the same. Each
Limited Partner further agrees that, in the event any state or local
property transfer tax is payable as a result of the transfer of its
Offered Units to the General Partner (or its designee), such Limited
Partner shall assume and pay such transfer tax.
ARTICLE 11
BANKING, RECORDS AND TAX MATTERS
11.1 Partnership Funds. All funds of the Partnership shall be deposited in
its name in accounts (with banks, "money-market funds," or securities of the
United States government or like investment or depository media) designated by
the General Partner, and the General Partner or its designees shall have the
right to draw checks or other orders of withdrawal thereon and make, deliver,
accept and endorse negotiable instruments in connection with the Partnership
business.
11.2 Books and Records. The following books, records, and accounts shall
be maintained by the Partnership, showing its assets, liabilities, transactions,
and financial condition: a current list of the full name and last known address
of each Partner, separately identifying the General and Limited Partners and set
forth in alphabetical order and setting forth the amount of cash or a
description and statement of the Agreed Value of other property contributed or
agreed to be contributed by each partner; the date on which each became a
Partner; a copy of the Certificate and all amendments thereto; copies of the
Partnership's federal, state and local income tax returns and reports, if any,
for the six most recent years; copies of this Agreement and any amendments
thereto; and copies of any financial statements of the Partnership for the three
most recent years. The Partnership's books shall be maintained at the principal
office of the Partnership. Each Partner shall have the right to inspect and copy
such materials at all reasonable times and during ordinary business hours. The
General Partner is not required to deliver to any Limited Partner copies of the
Certificate or any amendments thereto, unless requested by such Limited Partner.
11.3 Financial Statements. Within ninety-five (95) days after the close of
each fiscal year of the Partnership, the
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General Partner shall cause to be prepared (at the Partnership's expense) and
furnished to each Person who was a Partner during the fiscal year then ended, a
balance sheet of the Partnership as of the close of such fiscal year and
statements of income or loss, and Net Cash Flow, if any. Such statements shall
be prepared in accordance with generally accepted accounting principles and
certified by the Accountants for the Partnership, unless such certification is
waived, in writing, by all of the Partners.
11.4 Tax Returns. Within ninety (90) days following the close of each
fiscal year of the Partnership, the General Partner shall cause to be prepared
(at the Partnership's expense) a United States Partnership Return of Income and
cause to be furnished to each Person who was a Partner during the fiscal year a
schedule (a "K-1 Schedule") of each such Partner's share of income, credits, and
deductions on the form then prescribed by the IRS. All elections and options
available to, or determinations as to items of income or expense of, the
Partnership for federal or state income tax purposes shall be taken, rejected or
made by the Partnership in the sole discretion of the General Partner.
11.5 Section 754 Matters. The General Partner, on behalf of the
Partnership, shall file an election under Section 754 of the Code in accordance
with the procedures set forth in the applicable Regulations promulgated
thereunder, which shall be effective beginning with the first fiscal year of the
Partnership with respect to which the Partnership is eligible to make such
election, which election, for such fiscal year, may not be revoked for any
reason.
11.6 Tax Matter Partners. The General Partner is hereby appointed the "tax
matters partner" of the Partnership for all purposes pursuant to Sections
6221-6231 of the Code. The Partnership shall reimburse the tax matters partner
for any and all out-of-pocket costs and expenses (including attorneys' and
accountants' fees) incurred or sustained by it in its capacity as tax matters
partner. The Partnership shall indemnify, defend and hold the tax matters
partner harmless from and against any loss, liability, damage, cost or expense
(including attorneys' and accountants' fees) sustained or incurred as a result
of any act or decision concerning the Partnership tax matters and within the
scope of its responsibility as tax matters partner.
11.7 Other Reports. The General Partner shall deliver to each Limited
Partner, in a timely manner, all reports and/or other communications transmitted
from time to time by the General Partner to its shareholders.
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ARTICLE 12
TRANSFER OF GENERAL PARTNER INTERESTS
12.1 Transfer of Interest of the General Partner. No General Partner may
at any time sell, assign, transfer, pledge or encumber any or all of its
Partnership Interest in the Partnership or withdraw or retire from the
Partnership except as otherwise provided herein or with the prior written
consent of Partners owning eighty-five percent (85%) of the issued and
outstanding Partnership Units taken as a single class. Retirement or withdrawal
from the Partnership shall not relieve the General Partner of any obligation
theretofore incurred by it hereunder. Notwithstanding anything contained herein
to the contrary, the Limited Partners shall have no right whatsoever to remove
the General Partner from the Partnership.
12.2 Retirement of the General Partner. If a General Partner shall
liquidate or dissolve, be adjudged bankrupt, enter into an assignment for the
benefit of creditors, have a receiver appointed to administer its interest in
the Partnership, be the subject of a voluntary or involuntary petition for
bankruptcy that is not dismissed or vacated within ninety (90) days of filing,
or have its interest in the Partnership seized by a judgment creditor, or if
there shall be an individual general partner and he shall die, be adjudicated
incompetent or become permanently disabled (each of the foregoing events is
referred to hereinafter as an "Event of Retirement"), such General Partner,
without further act or notice, immediately shall be deemed to have retired as
General Partner of the Partnership. If the General Partner retires as General
Partner of the Partnership as aforesaid, (i) such General Partner (or its
administrator, executor, personal representative or successor) (a) shall become
a nonparticipating Limited Partner (a "Nonparticipating Limited Partner")
retaining the General Partner's former interest in the Profits, Losses and Net
Cash Flow of the Partnership, but shall not acquire any right or interest in any
payment or distribution to the Limited Partners, as such, pursuant hereto, (b)
shall have no right to participate in the management of the affairs of the
Partnership, and (c) shall be disregarded in determining whether any approval,
consent, or other action has been given or taken by the Limited Partners; and
(ii) the surviving General Partner(s), if any, shall remain as such and the
Partners hereby agree and consent that the Partnership shall continue in effect
and shall not terminate, subject, however, to the provisions of Section 12.5
hereof.
12.3 Transferee of the General Partner's Interest. Any Person, other than
the General Partner, who acquires, in any
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manner whatsoever (except as herein otherwise provided) the interest, or any
portion thereof, of the General Partner, shall not be a General Partner, but
shall be entitled to become a Nonparticipating Limited Partner upon written
acceptance and adoption of all of the terms and provisions of this Agreement and
compliance with the requirements of Section 13.3 of this Agreement. Such Person
shall, to the extent of the interest acquired, be entitled only to the
transferor General Partner's rights, if any, in the Profits, Losses and Net Cash
Flow of the Partnership, but shall not acquire any right or interest in any
payment or distribution to the Limited Partners, as such, pursuant hereto. No
such Person shall have any right to participate in the management of the affairs
of the Partnership, and the interest acquired by such Person shall be
disregarded in determining whether any approval, consent or other action has
been given or taken by the Limited Partners.
12.4 Retirement of Last Remaining General Partner. If the last remaining
General Partner shall at any time withdraw or suffer an Event of Retirement, the
Limited Partners shall have the right, within ninety (90) days thereafter, by a
written consent executed and delivered by Limited Partners owning a majority of
the issued and outstanding Partnership Interests taken as a single class, to
appoint one or more new General Partners as replacement General Partners, unless
the Act requires a greater percentage of the Limited Partners to consent to the
continuation of the Partnership, in which case such higher percentage shall be
required for the continuation of the Partnership. In such event, the Limited
Partners shall create for such replacement General Partners such interest in the
Partnership Profits, Losses and Net Cash Flow as the Limited Partners may agree
upon from among their collective interests in the Partnership.
12.5 Continuation of Partnership. In the event of the timely appointment
of a replacement or new General Partner(s) pursuant to this Article 12, the
relationship of the Partners shall be governed by the provisions of this
Agreement, the Partnership shall be continued, and the replacement or new
General Partner(s) shall have all of the management rights, duties,
responsibilities, authority and powers provided the General Partner in this
Agreement. If the Limited Partners fail to select a replacement or new General
Partner(s), whichever the case may be, within ninety (90) days following
retirement of the last remaining General Partner, the Partnership shall dissolve
and terminate.
ARTICLE 13
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TRANSFER OF LIMITED PARTNER INTERESTS
13.1 Transfer of Interest of a Limited Partner. Except as otherwise
specifically provided in this Agreement, no Limited Partner may sell, assign,
transfer, pledge, encumber or in any manner dispose of all or any part of its
Partnership Interest without the prior written consent of the General Partner,
which consent may not be unreasonably withheld. Notwithstanding the foregoing,
each Limited Partner shall have the right to (i) pledge or otherwise encumber
all or any portion of its Partnership Interest (subject, however, to applicable
securities laws) and/or (ii) transfer all or any portion of its Partnership
Interest to members of the Immediate Family of such Limited Partner and to one
or more trusts for the benefit of one or more members of the Immediate Family of
such Limited Partner for estate and/or gift tax purposes, upon prior written
notice to the General Partner. Without limiting the generality of the foregoing,
in no event shall the General Partner consent to an assignment of all or any
portion of the Partnership Interest of a Limited Partner in the Partnership if,
in the opinion of the General Partner (or of counsel satisfactory to the General
Partner), such assignment (i) will result in a termination of the Partnership
for federal income tax purposes or otherwise result in adverse tax consequences
to the Partnership or any Partner, (ii) will result in the Partnership failing
to qualify for an exemption from the registration requirements of the federal or
any applicable state securities laws, (iii) will result in the imposition of
fiduciary responsibility on the Partnership or any Partner under the Employee
Retirement Income Security Act of 1974, as amended from time to time, (iv) will
result in a violation of any provision of any mortgage or trust deed (or the
note or bond secured thereby) constituting a lien against any assets of the
Partnership, or other instrument, document or agreement to which the Partnership
is a party or otherwise bound, (v) represents a transfer of any component
portion of a Partnership Interest, such as the Capital Account, or rights to Net
Cash Flow, separate and apart from all other components of a Partnership
Interest, or (vi) will cause the General Partner to cease to comply with any and
all REIT Requirements. Subject to satisfaction of the conditions therefor set
forth or referred to herein, each Limited Partner hereby consents to the
substitution or admission of any assignee of a Limited Partner. Any sale,
assignment, transfer, pledge, encumbrance, hypothecation or other disposition by
a Limited Partner of all or any part of its Partnership Interest in violation of
the provisions hereof shall be void ab initio and of no force or effect
whatsoever.
13.2 Assignee and Substitute Limited Partners. No Person shall be admitted
as an assignee or substituted Limited Partner under this Agreement unless and
until:
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(a) An assignment is made in writing, signed by the assigning
Partner and accepted in writing by the assignee, and a duplicate original
of such assignment has been delivered to and approved by the General
Partner;
(b) The General Partner has received an opinion of counsel favorably
covering the matters described in clauses (i) through (vi) of Section 13.1
above, or waived all or any portion of this requirement;
(c) The prospective admittee executes and delivers to the General
Partner a written agreement in form reasonably satisfactory to the General
Partner pursuant to which said Person agrees to be bound by and confirms
the obligations, representations, warranties and power of attorney
contained in this Agreement; and
(d) An appropriate amendment to this Agreement is executed.
13.3 Assignment. In the event an assignment is made in accordance with the
terms hereof, unless otherwise required by the Code:
(a) The effective date of such assignment shall be the date the
written instrument of assignment is delivered to the Partnership and
approved by the General Partner;
(b) The Partnership and the General Partner shall be entitled to
treat the assignor of the assigned interest as the absolute owner thereof
in all respects and shall incur no liability for allocations of Profits or
Losses and distributions of Net Cash Flow made in good faith to such
assignor until such time as the written instrument of assignment has been
actually received and approved by the General Partner, and recorded in the
books of the Partnership; and
(c) The division and allocation of Profits or Losses, other than
Profits or Losses arising from a Liquidation of the Partnership,
attributable to the applicable Partnership Interests between the assignor
and assignee during any fiscal year of the Partnership shall be based upon
the length of time during such fiscal year, as measured by the effective
date of such assignment, that the assigned Partnership Interest was owned
by each of them and shall not be based upon the date or dates during such
fiscal year in which income was earned or losses were sustained by the
Partnership; provided, however, that the division and
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allocation of Profits or Losses resulting from a Liquidation of the
Partnership shall be based upon the date or dates such income was earned
or losses were sustained.
13.4 Cost of Admission. The cost of processing and perfecting an admission
contemplated by this Article 13 (including reasonable attorney's fees incurred
by the Partnership) shall be borne by the party seeking admission as a Partner
to the Partnership.
ARTICLE 14
DISSOLUTION AND LIQUIDATION OF PARTNERSHIP
14.1 Dissolution of the Partnership. The Partnership shall be dissolved
upon the happening of any of the following:
(a) An election to dissolve and wind up the affairs of the
Partnership by the General Partner (subject to Section 9.3 hereof);
(b) The occurrence of an Event of Retirement to the last remaining
General Partner, unless the Limited Partners elect to continue the
business of the Partnership pursuant to the provisions of Sections 12.4
and 12.5;
(c) Any event that makes it unlawful for the Partnership business to
be continued;
(d) The sale, disposition, or abandonment of all or substantially
all of the assets of the Partnership unless the General Partner, with the
written consent of Partners owning eighty-five percent (85%) of the
Partnership Interests taken as a single class (which consent may not be
unreasonably withheld), elects to continue the Partnership business for
the purpose of the receipt and the collection of indebtedness or the
collection of any other consideration to be received in exchange for the
assets of the Partnership (which activities shall be deemed to be part of
the winding up of the affairs of the Partnership);
(e) Dissolution required by operation of law; or
(f) December 31, 2093.
14.2 Winding Up of Affairs. In the event of the dissolution and
liquidation of the Partnership for any reason, the General Partner shall
commence to wind up the affairs of the Partnership and shall convert all of the
Partnership's assets to cash or cash
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equivalents within such reasonable period of time as may be required to receive
fair value therefor. All items of income, gain, loss, deduction and credit
during the period of liquidation shall be allocated among the Partners in the
same manner as before the dissolution. If there is no General Partner to effect
such Liquidation, then the Limited Partners, pursuant to a vote of Limited
Partners owning a majority of the issued and outstanding Partnership Units owned
by all Limited Partners, may designate any person, firm or corporation, as a
Liquidating Trustee, for that purpose who shall have all of the rights, powers
and authority of a General Partner stated herein in connection therewith.
14.3 Accounting. In the case of the dissolution and termination of the
Partnership, prior to any distributions to Partners pursuant to Section 14.4(c)
below, a proper accounting shall be made of the Capital Accounts of the Partners
and of each item of income, gain, loss, deduction and credit of the Partnership
from the date of the last previous accounting to the date of dissolution. The
General Partner shall provide a copy of such accounting to all Partners.
14.4 Final Distribution of Partnership Property. Upon termination of the
Partnership, the General Partner shall apply and distribute the remaining
property of the Partnership, together with the proceeds of any sales of same, as
follows:
(a) first, all Partnership debts and liabilities shall be paid and
discharged, including debts owed to Partners and any Affiliates of
Partners;
(b) second, to establish any reserve for any contingent or
unforeseen liabilities or obligations of the Partnership. Such funds shall
be placed in escrow by the General Partner for the purposes of disbursing
such funds in payment of any of the contingencies, liabilities or
obligations, and, at the expiration of such period as the General Partner
shall deem advisable, the balance then remaining shall be distributed
pursuant to subsection (c) of this Section 14.4; and
(c) third, to distribute the balance to the Partners in the manner
and priority set forth in Article 8 hereof, with any and all Net Cash Flow
arising from the ordinary course of the Partnership's business during the
period of liquidation being distributed pursuant to Section 8.1(a) and any
and all Net Cash Flow arising pursuant to the sale and/or other
liquidation of Partnership property being distributed pursuant to Section
8.1(b) hereof.
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Distributions upon liquidation of the Partnership (or any Partner's
interest in the Partnership) and related adjustments shall be made by the end of
the taxable year of the liquidation (or, if later, within 90 days after the date
of such liquidation) or as otherwise permitted by the Regulations.
14.5 Certificate of Cancellation. Upon completion of the liquidation of
the Partnership and the distribution of all Partnership property, the
Partnership shall terminate and the General Partner shall have the authority to
execute and record one or more Certificates of Cancellation of the Partnership
as well as any and all other documents required or considered advisable by the
General Partner to effectuate the dissolution and termination of the
Partnership.
ARTICLE 15
POWER OF ATTORNEY
15.1 Power of Attorney. Each Partner, by its execution hereof, irrevocably
constitutes and appoints the General Partner, or any substitute or replacement
General Partner, with full power of substitution, as such Partner's true and
lawful attorney-in-fact, in its name, place and stead to make, execute, sign,
acknowledge, certify, deliver, file and record on its behalf and on behalf of
the Partnership, the following:
(a) This Agreement, all Certificates of Limited Partnership,
Certificates of Doing Business under an Assumed Name, amendments to any or
all of the foregoing, and any other certificates or instruments which may
be required to be filed by the Partnership or the Partners under the laws
of the State of Delaware or any other jurisdiction;
(b) One or more Certificates of Cancellation of the Partnership and
such other instruments or documents as may be deemed necessary or
desirable by the General Partner upon termination of the Partnership
business;
(c) Any and all amendments to this Agreement and to the instruments
described in subsections (a) and (b) above, provided such amendments are
either required by law or have been authorized by the Partner(s) in
accordance with Article 16 and/or any other provision of this Agreement
(including, without limitation, any amendment to this Agreement and to the
Certificate to reflect the substitution or admission of a Limited Partner
pursuant to this Agreement); and
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(d) Any and all such other documents and instruments as may be
deemed necessary or desirable by said attorney to carry out fully the
provisions of this Agreement in accordance with its terms.
15.2 Grant of Authority Irrevocable. The foregoing grant of authority (a)
is a special power of attorney coupled with an interest, is irrevocable and
shall survive the death or incapacity of a Partner who is a natural person or,
in the case of a Partner that is not a natural person, the merger, dissolution
or other termination of its existence of the Partner, (b) may be exercised by
the General Partner on behalf of each Partner, by a facsimile signature or by
listing all of the Partners executing any instrument with a single signature as
attorney-in-fact for all of them, and (c) shall survive the assignment by a
Partner of the whole or any portion of his or its interest in the Partnership.
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ARTICLE 16
AMENDMENT OF PARTNERSHIP AGREEMENT
16.1 Amendments by Partners. Except as may be specifically provided below
in this Section 16.1 and in Sections 16.2 and 9.3 hereof, this Agreement may
only be amended with the written concurrence of the General Partner and the
written consent of Partners owning a majority of the Partnership Units taken as
a single class (which shall mean that only the General Partner's consent is
necessary if the General Partner owns a majority of the Partnership Units, taken
as a single class, in which case the Limited Partners need not be solicited but
shall be informed of the amendment); provided, however, that absent the
concurrence of the General Partner and the approval of all of the Limited
Partners no amendment shall increase the obligation of any Partner to make
contributions to the capital of the Partnership; provided, further, however,
that absent the concurrence of the General Partner and the approval of Limited
Partners owning eighty-five percent (85%) of the Partnership Units held by all
Limited Partners, taken as a single class, no amendment shall:
(a) modify the order of allocation of distributions of the Net Cash
Flow or liquidating distributions, or the allocation of Profits and Losses
among the Partners (other than as specifically provided for herein,
including without limitation, modifications pursuant to Section 6.4
hereof);
(b) change the Partnership to a general partnership;
(c) reduce the percentage of Limited Partners required to consent to
any matter in this Agreement; or
(d) amend Section 9.4(a)(iv) hereof or amend Section 10.3 hereof in
any manner that prohibits or restricts, or has the effect of prohibiting
or restricting, the ability of a Limited Partner to exercise its
Redemption Rights in full; or
(e) amend this Article 16.
16.2 Amendment by the General Partner. Notwithstanding anything contained
in this Agreement to the contrary, the General Partner shall have the power,
without the consent of the Limited Partners, to amend this Agreement as may be
required to facilitate or implement any of the following purposes:
(a) To add to the obligations of the General Partner or surrender
any right or power granted to the General
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Partner or any Affiliate of the General Partner for the benefit of the
Limited Partners;
(b) To reflect the admission, substitution, termination or
withdrawal of Partners in accordance with this Agreement, including
without limitation, the issuance of additional classes of Partnership
Units to Limited Partners pursuant to Section 6.4 hereof;
(c) To reflect a change that is of an inconsequential nature and
does not adversely affect the Limited Partners in any material respect, or
to cure any ambiguity, correct or supplement any provision in this
Agreement not inconsistent with law or with other provisions, or make
other changes with respect to matters arising under this Agreement that
will not be inconsistent with law or with the provisions of this
Agreement;
(d) To satisfy any requirements, conditions or guidelines contained
in any order, directive, opinion, ruling or regulation of a federal or
state agency or contained in federal or state law; and
(e) To amend the provisions of this Agreement that protect the
qualification of the General Partner as a REIT if such provisions are no
longer necessary because of a change in applicable law (or an
authoritative interpretation thereof), a ruling of the IRS, or if the
General Partner has determined to cease qualifying as a REIT.
The General Partner will provide notice to the Limited Partners when any action
under this Section 16.2 is taken.
16.3 Amendment of Certificate. If this Agreement shall be amended pursuant
to this Article 16, the General Partner shall cause the Certificate to be
amended, to the extent required by applicable law, to reflect such change. The
Partners shall be promptly notified of any amendments made under this Article
16.
ARTICLE 17
INDEMNIFICATION
17.1 Partnership Indemnification of Partner. To the maximum extent
permitted from time to time under Delaware law, the Partnership shall indemnify,
defend and hold the General Partner (in its capacity as General Partner) and its
Affiliates, trustees, officers, directors, employees and agents, or their
respective successors, executors, administrators or personal
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representatives harmless from and against any loss, liability, damage, cost or
expense (including reasonable attorneys' fees) sustained or incurred as a result
of any act or omission concerning the business or activities of the Partnership
or General Partner; provided such act or omission was not in violation of any
term or provision of this Agreement or any provision of law. The foregoing
indemnity shall not be enforceable against any Limited Partner personally but
solely from such Limited Partner's interest in the Partnership.
17.2 Partner Indemnification of Partnership. In the event the Partnership
is made a party to any litigation or otherwise incurs any loss or expense as a
result of or in connection with any Partner's personal obligations or
liabilities unrelated to Partnership business, such Partner shall indemnify and
reimburse the Partnership for all such loss and expense incurred, including
reasonable attorneys' fees, and the interest of such Partner in the Partnership
may be charged therefor. The liability of a Partner under this Section 17.2
shall not be limited to such Partner's interest in the Partnership, but shall be
enforceable against such Partner personally.
ARTICLE 18
MISCELLANEOUS PROVISIONS
18.1 Notices. All notices and demands required or permitted under this
Agreement shall be in writing and may be delivered personally to the Person to
whom it is authorized to be given, or sent by registered, certified or first
class mail, or by overnight delivery, postage prepaid, and if intended for the
Partnership, addressed to the Partnership at the principal office of the
Partnership, and if intended for a Partner, addressed to the Partner at its
address on the signature pages hereof, or to such other person or at such other
address designated by written notice given to the Partnership. Any notice or
demand mailed as aforesaid shall be deemed to have been delivered two (2) days
after the date that such notice or demand is deposited in the mails.
18.2 Severability. If any provision of this Agreement or the application
of such provision to any Person or circumstance shall be held invalid, the
remainder of this Agreement, or the application of such provision to Persons or
circumstances other than those as to which it is held invalid shall not be
affected.
18.3 Parties Bound. Any Person acquiring or claiming an interest in the
Partnership, in any manner whatsoever, shall be subject to and bound by all
terms, conditions and obligations of
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this Agreement to which his or its predecessor in interest was subject or bound,
without regard to whether such Person has executed a counterpart hereof or any
other document contemplated hereby. No Person, including the legal
representative, heir or legatee of a deceased Partner, shall have any rights or
obligations greater than those set forth in this Agreement and no Person shall
acquire an interest in the Partnership or become a Partner thereof except as
permitted by the terms of this Agreement. This Agreement shall be binding upon
the parties hereto, their successors, heirs, devisees, assigns, legal
representatives, executors and administrators.
18.4 Applicable Law. The Partnership and this Agreement shall be governed
by the laws of the State of Delaware.
18.5 Partition. Each Partner hereby irrevocably waives during the term of
the Partnership any right that he or it may have to maintain any action for
partition with respect to any property of the Partnership.
18.6 Computation of Accountants. Except with respect to matters as to
which the General Partner is granted discretion under this Agreement, the
opinion of the Accountants shall be final and binding with respect to all
allocations made under Article 7 or distributions made under Article 8 or
Section 14.4 hereof.
18.7 Headings. The headings in this Agreement are inserted for convenience
and identification only and are in no way intended to describe, interpret,
define or limit the scope, extent or intent of this Agreement or any provision.
18.8 Counterparts. This Agreement may be executed in multiple counterparts
with separate signature pages, each such counterpart shall be considered an
original, but all of which together shall constitute one and the same
instrument.
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IN WITNESS WHEREOF, each of the parties has executed this Agreement as of
the date first set forth above, confirms his or its agreement to become a
General or Limited Partner, as the case may be, of the Partnership, agrees to be
bound by this Agreement and acknowledges the appointment of attorneys-in-fact as
set forth herein, and swears that the statements set forth herein are true and
correct.
GENERAL PARTNER:
CALI REALTY CORPORATION,
a Maryland corporation
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Its: Vice President
Address: ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
LIMITED PARTNERS:
/s/ ▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------
▇▇▇▇ ▇. ▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇
/s/ ▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------
▇▇▇▇ ▇. ▇▇▇▇
/s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
-----------------------------------
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇-▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇ ▇▇▇▇-▇▇▇▇▇▇▇
- 55 -
TAR Investments, L.P.
By: TAR Realty Corp.,
general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇
President
/s/ ▇▇▇▇▇▇ Spring
-----------------------------------
▇▇▇▇▇▇ Spring
/s/ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇.
-----------------------------------
▇▇▇▇▇▇ ▇▇▇▇, ▇▇.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇ ▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇.
-----------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇
- 56 -
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇.
-----------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
-----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
/s/ ▇▇▇▇▇▇ Halberstradter
-----------------------------------
▇▇▇▇▇▇ Halberstradter
/s/ ▇▇▇▇▇▇▇ Halberstradter
-----------------------------------
▇▇▇▇▇▇▇ Halberstradter
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇
-----------------------------------
▇▇▇▇ ▇▇▇▇
- 57 -
▇▇▇▇▇▇ ▇. ▇▇▇▇ Irrevocable Trust
dated January 28, 1975
f/b/o ▇▇▇▇▇▇ ▇▇▇▇
By:/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Trustee
▇▇▇▇▇▇ ▇. ▇▇▇▇ Irrevocable Trust
dated January 28, 1975
f/b/o ▇▇▇▇ ▇. ▇▇▇▇
By:/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Trustee
▇▇▇▇▇▇ ▇. ▇▇▇▇ Irrevocable Trust
dated January 28, 1975
f/b/o ▇▇▇▇▇▇ ▇▇▇▇
By:/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Trustee
▇▇▇▇▇▇ ▇. ▇▇▇▇ Irrevocable Trust
dated July 1, 1979
By:/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Trustee
▇▇▇▇ ▇. ▇▇▇▇ Irrevocable Trust
dated July 1, 1979
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Trustee
P.S.L. Associates
By:/s/ ▇▇▇▇ ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title:
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
- 58 -
M.B.M. Associates
By: Fair Lawn-▇▇▇▇▇▇▇ Associates IV,
General Partner
By:/s/ W. ▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------
W. ▇▇▇▇▇ ▇▇▇▇▇▇▇
Managing General Partner
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Managing General Partner
By: ▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇ Associates,
General Partner
By:/s/ Malvern ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------
Malvern ▇. ▇▇▇▇▇▇▇▇▇
General Partner
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
General Partner
- 59 -
EXHIBIT A
Partners and Partnership Units
Name and Address of Partner Partnership Units
--------------------------- -----------------
General Partner
---------------
Cali Realty Corporation 18,781,394
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Limited Partners
----------------
▇▇▇▇ ▇. ▇▇▇▇ 290,561
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇ 261,090
▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 307,916
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇. #▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇ 149,501
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇ 83,951
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ 59,703
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
A-1
▇▇▇▇▇ ▇▇▇▇-▇▇▇▇▇▇▇ 51,912
▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
TAR Investments, L.P. 141,383
c/o Cali Realty Corporation
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ Spring 42,029
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇. 21,026
▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ 84,583
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ 166,145
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇. #▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇. 37,235
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 42,235
▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 15,102
c/o ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
A-2
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 99,314
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 15,102
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 13,504
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ 16,439
▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 13,504
c/o ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ 66,042
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇ 92,215
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇. 53,080
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇. ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. 19,231
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
A-3
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ 20,000
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ 43,684
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 659
c/o ▇▇▇▇▇ ▇▇▇▇▇▇▇
3842 Wonderland Hill
Boulder, Co. 80304
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇/▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇/▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 2,964
Ravin, Sarasohn, Cook, Baumgarten,
▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ 2,964
Ravin, Sarasohn, Cook, Baumgarten,
▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ 14,783
▇▇▇ ▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
A-4
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 5,618
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ 2,663
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇ Irrevocable Trust 63,522
dated January 28, 1975 f/b/o
▇▇▇▇▇▇ ▇▇▇▇
c/o ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Cali Associates
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇ Irrevocable Trust 63,523
dated January 28, 1975 f/b/o
▇▇▇▇ ▇. ▇▇▇▇
c/o ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Cali Associates
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇ Irrevocable Trust 63,523
dated January 28, 1975 f/b/o
▇▇▇▇▇▇ ▇▇▇▇
c/o ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Cali Associates
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇ Irrevocable Trust 44,291
dated July 1, 1979
c/o ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Cali Associates
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
A-5
▇▇▇▇ ▇. ▇▇▇▇ Irrevocable Trust 44,291
dated July 1, 1979
c/o ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Cali Associates
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
P.S.L. Associates 76,918
▇/▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ 2,964
c\o Pryor, Cashman, ▇▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
M.B.M. Associates 93,458
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
A-6
EXHIBIT B
CALI REALTY, L.P. UNIT CERTIFICATE
* SEE RESTRICTIVE LEGENDS ON REVERSE *
CALI REALTY, L.P.
A DELAWARE LIMITED PARTNERSHIP
Number: ______ Units: ______
This is to certify that ____________________ is the owner of
______________________________________________________ fully paid limited
Partnership Units of Cali Realty, L.P., a Delaware limited partnership (the
"Partnership"), transferable only on the books of the Partnership by the holder
hereof in person or by the duly authorized Attorney upon surrender of this
Certificate properly endorsed.
WITNESS, the seal of the General Partner of the Partnership and the
signatures of its duly authorized officers.
Dated: ______________
___________________________ ________________________
President Secretary
-SEAL-
B-1
REVERSE OF
CALI REALTY, L.P. UNIT CERTIFICATE
THE UNITS REPRESENTED BY THIS CERTIFICATE OR INSTRUMENT MAY NOT BE
TRANSFERRED, SOLD, ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED
OF UNLESS SUCH TRANSFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION OR OTHER
DISPOSITION COMPLIES WITH THE PROVISIONS OF THE AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP DATED AS OF JANUARY 17, 1997 (A COPY OF
WHICH IS ON FILE WITH THE PARTNERSHIP). EXCEPT AS OTHERWISE PROVIDED IN
SUCH AGREEMENT, NO TRANSFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION OR
OTHER DISPOSITION OF THE UNITS REPRESENTED BY THIS CERTIFICATE MAY BE MADE
EXCEPT (A) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR (B) IF THE PARTNERSHIP
HAS BEEN FURNISHED WITH A SATISFACTORY OPINION OF COUNSEL FOR THE HOLDER
THAT SUCH TRANSFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION OR OTHER
DISPOSITION IS EXEMPT FROM THE PROVISIONS OF SECTION 5 OF THE ACT AND THE
RULES AND REGULATIONS IN EFFECT THEREUNDER.
FOR VALUE RECEIVED, _________________ hereby sell, assign and transfer
unto __________________________________ _________________ limited Partnership
Units represented by the within Certificate, and do hereby irrevocably
constitute and appoint ________________________ Attorney to transfer the said
limited Partnership Units on the books of the within named Partnership with full
power of substitution in the premises.
Dated: ________________ ___________________________
In presence of:
________________________
B-2
Attachment 1 to Unit Certificate
EXERCISE NOTICE
To:
Reference is made to that certain Amended and Restated Agreement of
Limited Partnership of Cali Realty, L.P. dated as of January 17, 1997 (the
"Partnership Agreement"), pursuant to which Cali Realty Corporation, a Maryland
corporation, and certain other persons, including the undersigned, continued the
Delaware limited partnership known as Cali Realty, L.P. (the "Partnership").
Capitalized terms used but not defined herein shall have the meanings set forth
in the Partnership Agreement. Pursuant to Section 10.3 of the Partnership
Agreement, each of the undersigned, being a limited partner of the Partnership
(an "Exercising Partner"), hereby elects to exercise its Redemption Rights as to
a portion or portions of its Partnership Units, as all specified opposite its
signature below (notwithstanding the foregoing, each of the undersigned hereby
acknowledges and agrees that the General Partner has the right, in its sole and
absolute discretion, to deliver shares of Common Stock to the undersigned in
lieu of all or any portion of the cash requested below by the undersigned, all
in accordance with Section 10.3 of the Partnership Agreement):
Dated:
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Number of Number of
Offered Units to Offered Units to
Exercising be Redeemed for be Redeemed for
Partner Shares Cash
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