EXHIBIT 10.8
FOURTH AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
[▇▇▇▇ ▇. ▇▇▇▇▇▇▇ HOTELS], L.P.
a Delaware limited partnership
dated as of [_________ __], 2005
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE
SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION, UNLESS THE TRANSFEROR
DELIVERS TO THE PARTNERSHIP AN OPINION OF COUNSEL SATISFACTORY TO THE
PARTNERSHIP, IN FORM AND SUBSTANCE SATISFACTORY TO THE PARTNERSHIP, TO THE
EFFECT THAT THE PROPOSED SALE, TRANSFER OR OTHER DISPOSITION MAY BE
EFFECTED WITHOUT REGISTRATION UNDER THE SECURITIES ACT AND UNDER
APPLICABLE STATE SECURITIES OR "BLUE SKY" LAWS.
TABLE OF CONTENTS
PAGE
ARTICLE 1 DEFINED TERMS............................................................................................... 1
ARTICLE 2 ORGANIZATIONAL MATTERS...................................................................................... 17
SECTION 2.1 CONTINUATION OF PARTNERSHIP......................................................................... 17
SECTION 2.2 NAME................................................................................................ 17
SECTION 2.3 REGISTERED OFFICE AND AGENT; PRINCIPAL OFFICE....................................................... 17
SECTION 2.4 POWER OF ATTORNEY................................................................................... 17
SECTION 2.5 TERM................................................................................................ 18
ARTICLE 3 PURPOSE..................................................................................................... 18
SECTION 3.1 PURPOSE AND BUSINESS................................................................................ 18
SECTION 3.2 POWERS.............................................................................................. 19
SECTION 3.3 PARTNERSHIP ONLY FOR PURPOSES SPECIFIED............................................................. 19
SECTION 3.4 REPRESENTATIONS AND WARRANTIES BY THE PARTNERS...................................................... 19
SECTION 3.5 COMPLIANCE WITH REIT PROVISIONS..................................................................... 20
ARTICLE 4 CAPITAL CONTRIBUTIONS....................................................................................... 21
SECTION 4.1 CAPITAL CONTRIBUTIONS OF THE PARTNERS............................................................... 21
SECTION 4.2 ISSUANCES OF ADDITIONAL PARTNERSHIP INTERESTS AND ADDITIONAL PARTNERSHIP UNITS...................... 21
SECTION 4.3 ADDITIONAL FUNDS AND CAPITAL CONTRIBUTIONS.......................................................... 22
SECTION 4.4 NO INTEREST; NO RETURN.............................................................................. 23
SECTION 4.5 NOTE DEFICIENCY CAPITAL CONTRIBUTION................................................................ 23
SECTION 4.6 OTHER CONTRIBUTION PROVISIONS....................................................................... 23
ARTICLE 5 DISTRIBUTIONS............................................................................................... 24
SECTION 5.1 DISTRIBUTIONS....................................................................................... 24
SECTION 5.2 CERTAIN TAX DISTRIBUTIONS........................................................................... 24
SECTION 5.3 DISTRIBUTIONS TO REFLECT ADDITIONAL PARTNERSHIP UNITS............................................... 25
SECTION 5.4 DETERMINATION OF OPERATING CASH, AVAILABLE CLOSING CASH, OTHER CASH AND NET WORTH.................. 25
SECTION 5.5 EXPERT RESOLUTION................................................................................... 26
SECTION 5.6 RESTRICTED DISTRIBUTIONS............................................................................ 26
ARTICLE 6 ALLOCATIONS................................................................................................. 26
SECTION 6.1 TIMING AND AMOUNT OF ALLOCATIONS OF NET INCOME AND NET LOSS......................................... 27
SECTION 6.2 GENERAL ALLOCATIONS................................................................................. 27
SECTION 6.3 ADDITIONAL ALLOCATION PROVISIONS.................................................................... 27
SECTION 6.4 TAX ALLOCATIONS..................................................................................... 29
SECTION 6.5 RECAPTURE INCOME.................................................................................... 30
ARTICLE 7 MANAGEMENT AND OPERATIONS OF BUSINESS............. ......................................................... 30
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SECTION 7.1 MANAGEMENT.......................................................................................... 30
SECTION 7.2 CERTIFICATE OF LIMITED PARTNERSHIP.................................................................. 31
SECTION 7.3 RESTRICTIONS ON GENERAL PARTNER'S AUTHORITY......................................................... 31
SECTION 7.4 REIMBURSEMENT OF THE GENERAL PARTNER................................................................ 35
SECTION 7.5 OUTSIDE ACTIVITIES.................................................................................. 36
SECTION 7.6 RESERVES; WORKING CAPITAL........................................................................... 36
SECTION 7.7 INDEMNIFICATION..................................................................................... 36
SECTION 7.8 LIABILITY OF THE GENERAL PARTNER.................................................................... 38
SECTION 7.9 OTHER MATTERS CONCERNING THE GENERAL PARTNER........................................................ 38
SECTION 7.10 TITLE TO PARTNERSHIP ASSETS......................................................................... 39
SECTION 7.11 RELIANCE BY THIRD PARTIES........................................................................... 39
ARTICLE 8 RIGHTS AND OBLIGATIONS OF LIMITED PARTNERS.................................................................. 39
SECTION 8.1 LIMITATION OF LIABILITY............................................................................. 39
SECTION 8.2 MANAGEMENT OF BUSINESS.............................................................................. 39
SECTION 8.3 OUTSIDE ACTIVITIES OF LIMITED PARTNERS; RELATED PARTY TRANSACTIONS.................................. 40
SECTION 8.4 RETURN OF CAPITAL................................................................................... 40
ARTICLE 9 BOOKS, RECORDS, ACCOUNTING AND REPORTS...................................................................... 40
SECTION 9.1 RECORDS AND ACCOUNTING.............................................................................. 40
SECTION 9.2 PARTNERSHIP YEAR.................................................................................... 40
SECTION 9.3 REPORTS............................................................................................. 40
SECTION 9.4 DETERMINATION OF LIQUIDATION VALUE.................................................................. 41
ARTICLE 10 TAX MATTERS................................................................................................ 41
SECTION 10.1 PREPARATION OF TAX RETURNS.......................................................................... 41
SECTION 10.2 TAX ELECTIONS....................................................................................... 42
SECTION 10.3 TAX MATTERS PARTNER................................................................................. 42
SECTION 10.4 WITHHOLDING......................................................................................... 43
SECTION 10.5 ORGANIZATIONAL EXPENSES............................................................................. 43
ARTICLE 11 PARTNERSHIP INTEREST TRANSFERS AND PARTNER WITHDRAWALS..................................................... 44
SECTION 11.1 TRANSFER............................................................................................ 44
SECTION 11.2 TRANSFER OF GENERAL PARTNER'S PARTNERSHIP INTERESTS................................................. 44
SECTION 11.3 LIMITED PARTNERS' RIGHTS TO TRANSFER................................................................ 44
SECTION 11.4 SUBSTITUTED LIMITED PARTNERS........................................................................ 45
SECTION 11.5 ASSIGNEES........................................................................................... 46
SECTION 11.6 GENERAL PROVISIONS.................................................................................. 46
SECTION 11.7 ARTICLE 8 OPT-IN PROVISIONS......................................................................... 47
ARTICLE 12 ADMISSION OF PARTNERS...................................................................................... 48
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PAGE
SECTION 12.1 ADMISSION OF SUCCESSOR GENERAL PARTNER AND TRANSFEREES OF GENERAL PARTNER'S PARTNERSHIP INTERESTS... 48
SECTION 12.2 ADMISSION OF ADDITIONAL LIMITED PARTNERS............................................................ 48
SECTION 12.3 AMENDMENT OF AGREEMENT AND CERTIFICATE OF LIMITED PARTNERSHIP....................................... 49
SECTION 12.4 LIMIT ON NUMBER OF PARTNERS......................................................................... 49
SECTION 12.5 ADMISSION........................................................................................... 49
ARTICLE 13 DISSOLUTION, LIQUIDATION AND TERMINATION................................................................... 49
SECTION 13.1 DISSOLUTION......................................................................................... 49
SECTION 13.2 WINDING UP.......................................................................................... 50
SECTION 13.3 DEEMED CONTRIBUTION AND DISTRIBUTION................................................................ 51
SECTION 13.4 RIGHTS OF HOLDERS................................................................................... 51
SECTION 13.5 NOTICE OF DISSOLUTION............................................................................... 51
SECTION 13.6 CANCELLATION OF CERTIFICATE OF LIMITED PARTNERSHIP.................................................. 52
SECTION 13.7 REASONABLE TIME FOR WINDING-UP...................................................................... 52
ARTICLE 14 PROCEDURES FOR ACTIONS AND CONSENTS OF PARTNERS; AMENDMENTS; MEETINGS...................................... 52
SECTION 14.1 PROCEDURES FOR ACTIONS AND APPROVAL OF PARTNERS..................................................... 52
SECTION 14.2 AMENDMENTS.......................................................................................... 52
SECTION 14.3 MEETINGS OF THE PARTNERS............................................................................ 52
ARTICLE 15 RIGHT OF LIQUIDATION; REDEMPTION OF PREFERRED UNITS........................................................ 53
SECTION 15.1 RIGHT TO REQUEST LIQUIDATION........................................................................ 53
SECTION 15.2 REDEMPTION BY THE PARTNERSHIP....................................................................... 53
SECTION 15.3 EARLY LIQUIDITY RIGHT............................................................................... 54
ARTICLE 16 GENERAL PROVISIONS......................................................................................... 54
SECTION 16.1 ADDRESSES AND NOTICE................................................................................ 54
SECTION 16.2 TITLES AND CAPTIONS................................................................................. 54
SECTION 16.3 INTERPRETATION...................................................................................... 54
SECTION 16.4 FURTHER ACTION...................................................................................... 55
SECTION 16.5 BINDING EFFECT...................................................................................... 55
SECTION 16.6 WAIVER.............................................................................................. 55
SECTION 16.7 COUNTERPARTS........................................................................................ 55
SECTION 16.8 APPLICABLE LAW...................................................................................... 55
SECTION 16.9 ENTIRE AGREEMENT.................................................................................... 55
SECTION 16.10 INVALIDITY OF PROVISIONS............................................................................ 56
SECTION 16.11 NO PARTITION........................................................................................ 56
SECTION 16.12 NO THIRD-PARTY RIGHTS CREATED HEREBY................................................................ 56
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SECTION 16.13 ▇▇▇▇▇▇▇ REPRESENTATIVE.............................................................................. 56
SECTION 16.14 WAIVER OF JURY TRIAL................................................................................ 56
SECTION 16.15 JURISDICTION; SERVICE OF PROCESS.................................................................... 57
SECTION 16.16 ADVERTISING......................................................................................... 57
SECTION 16.17 CONFIDENTIALITY..................................................................................... 57
SECTION 16.18 CUMULATIVE REMEDIES................................................................................. 57
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Exhibit A PARTNERS AND PARTNERSHIP UNITS...................................................................... A-1
Exhibit B ALLOCATED PROPERTY-LEVEL DEBT....................................................................... B-1
Exhibit C DESIGNATED HOTELS................................................................................... C-1
Exhibit D FORM OF PARTNERSHIP UNIT CERTIFICATE................................................................ D-1
Exhibit E GROSS ASSET VALUES, REVERSE CODE SECTION 704(c) GAIN AND SECTION 704(c) GAIN........................ E-1
Exhibit F ORIGINAL CODE SECTION 704(c) VALUATIONS AND CODE SECTION 704(c) GAIN................................ F-1
Exhibit G 1031 PROPERTIES..................................................................................... G-1
Exhibit H CERTAIN IDENTIFIED DEBT............................................................................. H-1
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FOURTH AMENDED AND RESTATED AGREEMENT OF LIMITED
PARTNERSHIP OF [▇▇▇▇ ▇. ▇▇▇▇▇▇▇ HOTELS], L.P.
THIS FOURTH AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF [▇▇▇▇
▇. ▇▇▇▇▇▇▇ HOTELS], L.P., dated as of [___________ __], 2005, is entered into by
and among ATRIUM GP, LLC, a Delaware limited liability company, as general
partner of the Partnership, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, as Trustee of THE REVOCABLE TRUST
OF ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, dated December 28, 1989, as amended and restated ("JQH
TRUST"), ▇▇▇▇▇▇▇, INC., a Missouri corporation ("▇▇▇▇▇▇▇, INC," and, together
with JQH Trust, the "▇▇▇▇▇▇▇ LIMITED PARTNERS"), and any additional limited
partner that is admitted to the Partnership from time to time pursuant to the
terms of this Agreement and listed on Exhibit A attached hereto, (together with
the ▇▇▇▇▇▇▇ Limited Partners, collectively, the "LIMITED PARTNERS"). Capitalized
terms used but not otherwise defined herein shall have the meaning accorded to
such terms in Article I hereof.
WHEREAS, the parties hereto desire to amend and restate the Third Amended
and Restated Agreement of Limited Partnership of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Hotels, L.P.,
dated as of the date hereof, by and among ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Hotels, Inc., a
Delaware corporation, as general partner, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Trustee of the JQH
Trust, and ▇▇▇▇▇▇▇, Inc., as limited partners (the "PRIOR AGREEMENT").
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree to
amend and restate the Prior Agreement in its entirety as follows:
ARTICLE 1
DEFINED TERMS
The following definitions shall be for all purposes, unless otherwise
clearly indicated to the contrary, applied to the terms used in this Agreement.
"ACT" means the Delaware Revised Uniform Limited Partnership Act, 6
Del(c).Section 17-101 et. seq., as it may be amended from time to time, and any
successor to such statute.
"ACTIONS" has the meaning set forth in Section 7.7(a) hereof.
"ADDITIONAL FUNDS" has the meaning set forth in Section 4.3(a) hereof.
"ADDITIONAL LIMITED PARTNER" means a Person who is admitted to the
Partnership as a Limited Partner pursuant to Section 4.2 and/or Article 12
hereof and who is shown as such on the books and records of the Partnership.
"ADDITIONAL PARTNERSHIP INTERESTS" has the meaning set forth in Section
4.2(a) hereof.
"ADDITIONAL PARTNERSHIP UNITS" has the meaning set forth in Section 4.2(a)
hereof.
"ADJUSTED CAPITAL ACCOUNT DEFICIT" means, with respect to any Partner, the
deficit balance, if any, in such Person's Capital Account as of the end of the
relevant Partnership Year, after giving effect to the following adjustments:
(a) decrease such deficit by any amounts that such Person is
obligated to restore pursuant to this Agreement or by operation of law
upon liquidation of such Partner's Partnership Interest or that such
Person is deemed to be obligated to restore pursuant to the current
penultimate sentence of each of Regulations Sections 1.704-2(g)(1) and
1.704-2(i)(5); and
(b) increase such deficit by the items described in Regulations
Section 1.704-1(b)(2)(ii)(d)(4), (5) and (6).
1
The foregoing definition of "ADJUSTED CAPITAL ACCOUNT DEFICIT" is intended to
comply with the provisions of Regulations Section 1.704-1(b)(2)(ii)(d) and shall
be interpreted consistently therewith.
"AFFILIATE" means, with respect to any Person, any Person directly or
indirectly controlling or controlled by or under common control with such
Person. For the purposes of this definition, "control" when used with respect to
any Person means the possession, directly or indirectly, of the power to direct
or cause the direction of the management and policies of such Person, whether
through the ownership of voting securities, by contract or otherwise, and the
terms "controlling" and "controlled" have meanings correlative to the foregoing.
"AFFILIATE TRANSACTION AGREEMENTS" means the following agreements
described in sections 2.1(k), 2.1(m), 2.1(n) and 2.1(o) of the Transaction
Agreement: Tax Indemnity Agreement, Sponsor Right of First Refusal, JQH Right of
First Refusal, Non-Solicitation Agreement, Corporate Overhead Agreement,
Development Restriction Agreement, TRS Leases, Revenue Sharing Agreement and
Management Services Agreement, as such agreements may be amended, supplemented
or otherwise modified from time to time in accordance with their respective
terms.
"AGREEMENT" means this Fourth Amended and Restated Agreement of Limited
Partnership of [▇▇▇▇ ▇. ▇▇▇▇▇▇▇ HOTELS], L.P, as now or hereafter amended,
restated, modified, supplemented or replaced.
"ALLOCATED PROPERTY-LEVEL DEBT" means, with respect to each of the
Properties set forth on Exhibit B attached hereto, the amount of Debt allocated
with respect to such Property as set forth on Exhibit B.
"ANNUAL CAP" means, with respect to any Partnership Year, an amount equal
to $25 million, less any reimbursements made in such Partnership Year pursuant
to Section 7.4(b), plus the undistributed portion, if any, of the Annual Cap for
the Partnership Years prior to such Partnership Year.
"APPROVAL" means the consent to, approval of, or vote in favor of a
proposed action by a Partner given in accordance with Article 14 hereof, and the
terms "APPROVE" and "APPROVED" have meanings correlative to the foregoing.
"ARTICLE 8" has the meaning set forth in Section 11.7.
"ASSIGNEE" means a Person to whom one or more Partnership Units have been
Transferred in a manner permitted under this Agreement, but who has not become a
Substituted Limited Partner, and who has the rights set forth in Section 11.5
hereof.
"AVAILABLE CLOSING CASH" means, as the applicable Partnership Record Date,
an amount equal to (a) Closing Cash, less (b) the aggregate amount of Closing
Cash previously Distributed pursuant to Section 5.1(a)(ii), less (c) the
aggregate amount of reimbursements previously made pursuant to Section 7.4(b).
"BOOK-UP" means increase or decrease the Gross Asset Value of Partnership
Property pursuant to subsection (b) of the definition of Gross Asset Value, as
permitted by Regulations Section 1.704-1(b)(2)(iv)(f) and corresponding
adjustments to Capital Accounts.
"BUSINESS DAY" means any day except a Saturday, Sunday or other day on
which commercial banks in New York, New York are authorized or required by law
to close.
"CALENDAR LIQUIDATION NOTICE DATE" means the date that is one month after
the seventh anniversary of the Effective Date if a Liquidation Notice has been
received; provided, however, that if no Liquidation Notice has been delivered as
of such date, the Calendar Liquidation Notice Date shall automatically be
extended for successive one-year periods up to six times. Such automatic
extensions (i) shall expire upon the death of JQH and (ii) may not be
Transferred and is not available to any subsequent ▇▇▇▇▇▇▇ Limited Partners,
regardless of whether such Transfer is permitted by this Agreement or is
otherwise Approved by the Partners; provided, however, that in the event JQH is
Incapacitated (through permanent disability or adjudication of insanity or
incompetency but not by reason of death), such extension right shall continue.
2
"CAPITAL ACCOUNT" means, with respect to any Partner, the Capital Account
maintained by the General Partner for such Partner on the Partnership's books
and records in accordance with the following provisions:
(a) To each Partner's Capital Account, there shall be added such
Partner's Capital Contributions, such Partner's distributive share of Net
Income and any items in the nature of income or gain that are specially
allocated pursuant to Section 6.3 hereof, and the amount of any
Partnership liabilities assumed by such Partner or that are secured by any
property distributed to such Partner.
(b) From each Partner's Capital Account, there shall be subtracted
the amount of cash and the Gross Asset Value of any property distributed
to such Partner pursuant to any provision of this Agreement, such
Partner's distributive share of Net Losses and any items in the nature of
expenses or losses that are specially allocated pursuant to Section 6.3
hereof, and the amount of any liabilities of such Partner assumed by the
Partnership or that are secured by any property contributed by such
Partner to the Partnership.
(c) In the event all or a portion of any interest in the Partnership
is transferred in accordance with the terms of this Agreement, the
transferee shall succeed to the Partner's Capital Account of the
transferor to the extent that it relates to the Transferred interest.
(d) In determining the principal amount of any liability for
purposes of subsections (a) and (b) hereof, there shall be taken into
account Code Section 752(c) and any other applicable provisions of the
Code and Regulations.
(e) The provisions of this Agreement relating to the maintenance of
Capital Accounts are intended to comply with Regulations promulgated under
Code Section 704, and shall be interpreted and applied in a manner
consistent with such Regulations. If the General Partner shall determine
that it is prudent to modify the manner in which the Capital Accounts are
maintained in order to comply with such Regulations, the General Partner
may make such modification provided that such modification will not have a
material effect on the amounts distributable to any Partner without such
Partner's written consent. The General Partner also shall (i) make any
adjustments that are necessary or appropriate to maintain equality between
the Capital Accounts of the Partners and the amount of Partnership capital
reflected on the Partnership's balance sheet, as computed for book
purposes, in accordance with Regulations Section 1.704-1(b)(2)(iv)(q) and
(ii) make any appropriate modifications in the event that unanticipated
events might otherwise cause this Agreement not to comply with Regulations
Section 1.704-1(b) or Section 1.704-2; provided, however, that such
changes shall not reduce amounts otherwise distributable to the Partner as
the Preferred Redemption Price or as distributions on termination of the
Partnership.
"CAPITAL CONTRIBUTION" means, with respect to any Partner, any cash, cash
equivalents or the initial Gross Asset Value of any Contributed Property that
such Partner contributes to the Partnership reduced by any debt that the
Partnership becomes responsible for pursuant to Section 4.1, 4.2, 4.3 or 4.5
hereof. The principal amount of a promissory note which is not readily traded on
an established securities market and which is contributed by a Partner as the
maker of the note shall not be considered a capital contribution until the
Partnership makes a taxable disposition of the note or until (and to the extent)
principal payments are made on the note, all in accordance with Regulations
Section 1.704-1(b)(2)(iv)(d)(2).
"CASH" means, with respect to any Person, all cash and cash equivalents of
such Person and its Subsidiaries, whether or not restricted. Without limiting
the generality of the foregoing, "CASH," as used with respect to the
Partnership, shall include, without limitation, the line items on the balance
sheet of the Partnership and its Subsidiaries designated as "Cash and
Equivalents," "Restricted Cash," "Marketable Securities" and the restricted cash
component of "Deferred Financing Costs, Franchise Fees and Other."
"CASH FLOW" means Consolidated EBITDA of the Partnership and its
Subsidiaries, reduced by, without duplication, the sum of (a) interest expense
and (b) taxes paid for the applicable period based on income (including, for the
avoidance of doubt and without limitation, the Michigan Single Business Tax and
the Texas Franchise Tax).
3
"CERTIFICATE" means the Certificate of Limited Partnership of the
Partnership filed in the office of the Secretary of State of the State of
Delaware, as amended from time to time in accordance with the terms hereof and
the Act.
"CLOSING CASH" means the aggregate amount of Cash of the Partnership and
its Subsidiaries (it being understood that the amounts of Cash of such
Subsidiaries shall be counted for this purpose only to the extent of the
Partnership's interest in such Subsidiaries) as of the Effective Date.
"CODE" means the Internal Revenue Code of 1986, as amended and in effect
from time to time or any successor statute thereto, as interpreted by the
applicable Regulations thereunder. Any reference herein to a specific Section or
sections of the Code shall be deemed to include a reference to any corresponding
provision of future law.
"COMMON ALLOCATIONS PERCENTAGE" means, as of any time, a percentage equal
to 100%, minus the Preferred Allocations Percentage.
"CONSENT OF THE ▇▇▇▇▇▇▇ LIMITED PARTNERS" means the prior written consent
of either the ▇▇▇▇▇▇▇ Representative or the ▇▇▇▇▇▇▇ Limited Partners holding
more than fifty percent (50%) of all of the outstanding ▇▇▇▇▇▇▇ Preferred Units,
in either case, in their sole and absolute discretion, except to the extent that
a different standard is expressly provided herein.
"CONSOLIDATED EBITDA" means, for any Person and for any period, the EBITDA
as determined (a) on a consolidated basis of such Person and its Subsidiaries
and (b) based upon financial statements of such Person and its Subsidiaries
prepared in accordance with GAAP, adjusted to include income generated by such
Person's Cash and to account for acquisitions and dispositions on a pro forma
basis as though such acquisitions or dispositions, as the case may be, occurred
at the beginning of such period.
"CONSOLIDATED LEVERAGE RATIO" means, with respect to any Person as of any
date of determination, the ratio of (x) such Person's Consolidated Total Debt to
(y) such Person's Consolidated EBITDA for the most recently completed
twelve-month period for which financial statements are then available.
"CONSOLIDATED TOTAL DEBT" means, with respect to any Person at any time,
the difference, if positive, of (x) the sum of (without duplication) (i) the
amount of all Debt of such Person and its Subsidiaries as would be required to
be reflected on the liability side of a balance sheet prepared in accordance
with GAAP and determined on a consolidated basis at such time (it being
understood that the amounts of Debt of such Person's Subsidiaries shall be
consolidated with that of such Person only to the extent of such Person's
interest in such Subsidiaries) and (ii) guarantees of third party debt and
letters of credit issued to support third party debt, in each case, except to
the extent that such third party debt is collateralized by such third party,
less (y) the sum of (i) such Person's Cash (excluding any amounts of cash on
hand that have been designated by the such Person or any of its Subsidiaries for
application to prepay Debt described in clause (y)(ii)) plus (ii) any Debt
outstanding on the date of determination in respect of which an irrevocable
prepayment notice has been delivered that results in such Debt being due and
payable not later than 30 days after such prepayment notice, to the extent such
Person or any of its Subsidiaries either shall have unrestricted cash reserves
for such payment or shall have committed cash reserves for such payment pursuant
to a deposit arrangement or otherwise.
"CONSTRUCTIVELY" means ownership determined through the application of the
constructive ownership rules of Section 318 of the Code, as modified by Code
Section 856(d)(5).
"CONTRIBUTED PROPERTY" or "CONTRIBUTED PROPERTIES" means each Property or
other asset contributed, in such form as may be permitted by the Act, but
excluding cash, contributed or deemed contributed to the Partnership (or deemed
contributed by the Partnership to a "new" partnership pursuant to Code Section
708).
"CONVERTIBLE SECURITIES" means evidences of indebtedness, shares of stock
or other securities (including options and warrants) which are directly or
indirectly convertible, exercisable or exchangeable, with or without payment of
additional consideration in cash or property, for shares of common stock (or
other equity securities of
4
the applicable Person), either immediately or upon the onset of a specified date
or the happening of a specified event.
"CORPORATE OVERHEAD AGREEMENT" means the Corporate Overhead Agreement,
dated as of the date hereof, by and between the Partnership and JQH Acquisition,
LLC, a Delaware limited liability company.
"DEBT" means, as to any Person, at a particular time, (i) indebtedness for
borrowed money or for the deferred purchase price of property (which shall not
include accounts payable incurred in the ordinary course of business) in respect
of which such Person is liable, contingently or otherwise, as obligor, guarantor
or otherwise, or in respect of which such Person otherwise assures a creditor
against loss, in each case, only to the extent of such liability and, in the
case of a guarantee or similar obligation, to the extent that such guarantee or
similar obligation is not collateralized by the Person with respect to whom such
guarantee or similar obligation is incurred, (ii) obligations under leases which
shall have been or should be, in accordance with GAAP, recorded as capital
leases in respect of which obligations such Person is liable, contingently or
otherwise, as obligor, guarantor or otherwise, or in respect of which
obligations such Person assures a creditor against loss, in each case, only to
the extent of such liability and, in the case of a guarantee or similar
obligation, to the extent that such guarantee or similar obligation is not
collateralized by the Person with respect to whom such guarantee or similar
obligation is incurred, (iii) obligations of such Person to purchase or
repurchase accounts receivable, chattel paper or other payment rights sold or
assigned by such Person, (iv) indebtedness or obligations of such Person under
or with respect to letters of credit, notes, bonds or other debt instruments and
(v) all obligations of such Person under any interest rate swap, cap or collar
agreement or other similar agreement or arrangement designed to alter the risks
of that Person arising from fluctuations in interest rates, in each case whether
contingent or matured.
"DESIGNATED HOTELS" means, collectively, the ten properties set forth on
Exhibit C attached hereto.
"DISTRIBUTION" (including, with correlative meaning, the term
"Distribute") means each distribution made by the Partnership to a Holder;
provided that none of the following shall be deemed a distribution: (a) any
recapitalization or exchange of any Partnership Units which does not entail any
transfer of Partnership Property (including cash, but excluding securities); (b)
any payment to the Holders of ▇▇▇▇▇▇▇ Preferred Units upon liquidation and
distribution; and (c) any subdivision (by split of Partnership Units or
otherwise) or any combination (by reverse split of Partnership Units or
otherwise) of any outstanding Partnership Units.
"EARLY LIQUIDITY CLOSING DATE" has the meaning set forth in Section
15.3(b) hereof.
"EARLY LIQUIDITY DUE DATE" has the meaning set forth in Section 15.3(a)
hereof.
"EARLY LIQUIDITY NOTICE" has the meaning set forth in Section 15.3(a)
hereof.
"EARLY LIQUIDITY PRICE" means an amount equal to the sum of (a) $50
million, plus (b) $13,700 (the "PER DIEM AMOUNT") for each day (but in no event
for more than 365 days), if any, that the Early Liquidity Closing Date occurs
later than the Early Liquidity Due Date; provided that as of immediately after
each time that any of the Early Liquidity Units are purchased pursuant to
Section 15.3, the Per Diem Amount shall be adjusted to be an amount equal to the
quotient of (i) 10% of the Remaining Early Liquidity Price as of such time,
divided by (ii) 365.
"EARLY LIQUIDITY RIGHT" has the meaning set forth in Section 15.3(a)
hereof.
"EARLY LIQUIDITY UNITS" means the number of ▇▇▇▇▇▇▇ Preferred Units
derived by multiplying all of the ▇▇▇▇▇▇▇ Preferred Units outstanding by the
quotient of (a) the Early Liquidity Price, divided by (b) the Preferred
Redemption Price.
"EBITDA" means, for any Person and for any period, the net income of such
Person for such period, adjusted to add thereto (to the extent deducted from net
revenues in determining net income), without duplication, the sum of (a)
interest expense, (b) provisions for taxes based on income (including, for the
avoidance of doubt and without limitation, the Michigan Single Business Tax and
the Texas Franchise Tax), and (c) depreciation and amortization expense, and
further adjusted (i) to include all benefits derived by any interest rate swap,
cap or collar
5
agreement or other similar agreement or arrangement designed to alter the risks
of such Person arising from fluctuations in interest rates, in each case whether
contingent or matured, but only to the extent that the obligations of such
agreements or arrangements are included in the Debt of such Person, and (ii) to
exclude the impact of (A) gains and losses related to the early extinguishment
of Debt (including interest rate swaps and the write-off of unamortized
financing costs), (B) impairment losses and other write-downs, (C) gains or
losses on the sale of Properties, (D) extinguishment of franchise costs, (E)
cumulative effect of a change in accounting principle and (F) other infrequent
or non-recurring items, such as litigation costs, all of the foregoing as
determined based upon financial statements of such Person prepared in accordance
with GAAP.
"EFFECTIVE DATE" means the date on which this Agreement is executed by all
of the parties hereto.
"EFFECTIVE TIME" means the specific time during the Effective Date at
which this Agreement is executed and delivered by all of the parties hereto.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations of the SEC promulgated thereunder.
"GAAP" shall mean generally accepted accounting principles in the United
States of America as set forth in the opinions and pronouncements of the
Accounting Principles Board and the American Institute of Certified Public
Accountants and the statements and pronouncements of the Financial Accounting
Standards Board, or in such other statements by such other entity as may be in
general use by significant segments of the accounting profession, which are in
effect on the date of determination.
"GENERAL PARTNER" means Atrium GP, LLC, a Delaware limited liability
company, and its successors and assigns, in its capacity as the general partner
of the Partnership.
"GENERAL PARTNER INTEREST" means the Partnership Interest held by the
General Partner, which Partnership Interest, so long as it is held by the
General Partner or any successor General Partner, is an interest as a general
partner under the Act. A General Partner Interest may be expressed as a number
of Partnership Common Units or any other Partnership Units. Notwithstanding the
foregoing, a General Partnership Interest may not be expressed as a number of
▇▇▇▇▇▇▇ Preferred Units. Upon any transfer of less than the entire Partnership
Interest of the General Partner pursuant to Section 11.2(a), such portion of the
Partnership Interest will cease to be a General Partner Interest and will become
a Limited Partner Interest for all purposes of this Agreement.
"GOING CONCERN VALUE" means an amount equal to the (a) gross proceeds that
would be received from the sale of the Partnership and its Subsidiaries as a
going concern (whether structured as a merger, consolidation, recapitalization,
sale of equity interests, sale of assets or otherwise) in an orderly transaction
(or series of transactions) designed to maximize the proceeds therefrom, as
between a willing buyer and a willing seller, both in possession of reasonable
knowledge of all relevant facts, with neither party being under any compulsion
to act or not to act, in an arm's-length transaction, taking into account all
relevant factors determinative of value, less (b) an amount equal to 0.5% of
such proceeds, less (c) Net Debt, provided that Going Concern Value shall be
determined without taking into account any Undistributed Operating Cash.
"GP CERTIFICATE" means a certificate signed on behalf of the General
Partner by the managing member, chief executive officer, president, chief
operating officer or chief financial officer (without any personal liability) of
the General Partner, stating that (i) the managing member or officer signing
such certificate has made or has caused to be made such investigations as are
reasonably necessary in order to permit such officer to verify the accuracy of
the information set forth in such certificate, and (ii) to the best of such
managing member's or officer's knowledge, such certificate does not misstate any
material fact and does not omit to state any fact necessary to make the
certificate not misleading.
"GP DETERMINATION" has the meaning set forth in Section 5.4.
▇
"▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇" has the meaning set forth in Section 9.4.
"GROSS ASSET VALUE" means, with respect to any asset, the 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 to the Partnership shall be the gross fair market value of such
asset as determined by the General Partner and agreed to by the
contributing Person; provided, that, if the General Partner or any
Affiliate of the General Partner is the contributing partner, the
determination of the fair market value shall require the Consent of the
▇▇▇▇▇▇▇ Limited Partners, which consent shall not be unreasonably withheld
or delayed.
(b) The Gross Asset Values of all Partnership Properties immediately
prior to the Effective Time and the occurrence of any event described in
clause (i), clause (ii), clause (iii), clause (iv), clause (v) or clause
(vi) hereof shall be adjusted to equal their respective gross fair market
values, as determined by the General Partner using such reasonable method
of valuation as it may adopt, as of the following times:
(i) the acquisition of an additional interest in the
Partnership (including, without limitation, in connection with the
execution of this Agreement and acquisitions pursuant to Section 4.2
hereof or contributions or deemed contributions by the General
Partner pursuant to Section 4.2 hereof) by a new or existing Partner
in exchange for more than a de minimis Capital Contribution, if the
General Partner reasonably determines that such adjustment is
necessary or appropriate to reflect the relative economic interests
of the Partners in the Partnership;
(ii) the distribution by the Partnership to a Partner of more
than a de minimis amount of Partnership Property as consideration
for an interest in the Partnership if the General Partner reasonably
determines that such adjustment is necessary or appropriate to
reflect the relative economic interests of the Partners in the
Partnership;
(iii) the liquidation of the Partnership within the meaning of
Regulations Section 1.704-1(b)(2)(ii)(g);
(iv) upon the admission of a successor General Partner
pursuant to Section 12.1 hereof;
(v) in connection with the grant of an interest in the
Partnership (other than a de minimis interest) as consideration for
the provision of services to or for the benefit of the Partnership
by an existing partner acting in a partner capacity, or by a new
partner acing in a partner capacity or in anticipation of being a
partner; and
(vi) at such other times as the General Partner shall
reasonably determine necessary or advisable in order to comply with
Regulations Sections 1.704-1(b) and 1.704-2.
(c) The Gross Asset Value of any Partnership asset distributed to a
Partner shall be the gross fair market value of such asset on the date of
distribution as determined by the distributee and the General Partner;
provided that, if the distributee is the General Partner or if the
distributee and the General Partner cannot agree on such a determination,
such gross fair market value shall be determined by the written opinion of
an independent third party experienced in the valuation of similar assets,
selected by the General Partner in good faith; and provided, further, that
with respect to the Chateau on the Lake, such gross fair market value
shall be as determined by an appraisal report prepared by HVS
International dated December 7, 2004.
(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 Code Section 734(b) or Code Section 743(b), but only to
the extent that such adjustments are taken into account in determining
Capital Accounts pursuant to Regulations Section 1.704-1(b)(2)(iv)(m);
provided, however, that Gross Asset
7
Values shall not be adjusted pursuant to this subsection (d) to the extent
that the General Partner reasonably determines that an adjustment pursuant
to subsection (b) above is necessary or appropriate in connection with a
transaction that would otherwise result in an adjustment pursuant to this
subsection (d).
(e) If the Gross Asset Value of a Partnership Property has been
determined or adjusted pursuant to subsection (a), subsection (b) or
subsection (d) above, such Gross Asset Value shall thereafter be adjusted
by the Tax Depreciation taken into account with respect to such asset for
purposes of computing Net Income and Net Losses.
"GROSS REVENUES" means the annual gross revenues from operating the hotels
owned by the Partnership and its Subsidiaries, but not for this purpose any
revenues from banquet facilities or convention centers leased (except as
provided herein) or managed, but not owned or leased under triple net leases
under which the lessee is responsible for capital expenditures by the
Partnership or any of its Subsidiaries (the "HOTELS"), but excluding from such
calculation the following: (i) gratuities paid to hotel employees by others;
(ii) any federal, state or local excise, sales or use taxes or other applicable
impositions collected directly from hotel guests and patrons; (iii) proceeds
from the sale of furniture, fixtures and equipment ("FF&E"); (iv) proceeds of
any insurance, except business interruption or other insurance covering loss of
income; (v) any condemnation awards; (vi) gross receipts of any lessees,
licensees or concessionaires at the Hotels; (vii) proceeds from any financing or
refinancing of the Hotels; (viii) proceeds of any judgment or settlement not
relating to actual or potential loss of operating profit or gross revenues at
the Hotels; (ix) any earnings on FF&E reserve accounts which may be required by
any franchisee or licensee of such Hotels ("FF&E RESERVE ACCOUNTS"); and (x) any
amounts funded directly by the Partnership to FF&E Reserve Accounts.
"▇▇▇▇▇▇▇, INC." has the meaning set forth in the Preamble hereof.
"▇▇▇▇▇▇▇ LIMITED PARTNERS" has the meaning set forth in the Preamble.
"▇▇▇▇▇▇▇ PREFERRED UNITS" means a fractional share of the Partnership
Interests that the General Partner has authorized pursuant to Article IV hereof
that has the rights and obligations specified with respect to ▇▇▇▇▇▇▇ Preferred
Units in this Agreement, but does not include any Partnership Common Unit, or
any other Partnership Unit specified in a Partnership Unit Designation as being
other than a ▇▇▇▇▇▇▇ Preferred Unit.
"▇▇▇▇▇▇▇ REPRESENTATIVE" has the meaning set forth in Section 16.13
hereof.
"HOLDER" means either (a) a Partner or (b) an Assignee owning a
Partnership Unit.
"INCAPACITY" or "INCAPACITATED" means (i) as to any Partner who is an
individual, death, total physical disability or entry of an order by a court of
competent jurisdiction adjudicating such Partner incompetent to manage his or
her person or his or her estate; (ii) as to any Partner that is a corporation or
limited liability company, the filing of a certificate of dissolution, or its
equivalent, for the corporation or the revocation of its charter; (iii) as to
any Partner that is a partnership, the dissolution and commencement of winding
up of the partnership; (iv) as to any Partner that is an estate, the
distribution by the fiduciary of the estate's entire interest in the
Partnership; (v) as to any trustee of a trust that is a Partner, the termination
of the trust (but not the substitution of a new trustee); or (vi) as to any
Partner, the bankruptcy of such Partner. For purposes of this definition,
"bankruptcy" of a Partner shall be deemed to have occurred when (a) the Partner
commences a voluntary proceeding seeking liquidation, reorganization or other
relief of or against such Partner under any bankruptcy, insolvency or other
similar law now or hereafter in effect, (b) the Partner is adjudged as bankrupt
or insolvent, or a final and nonappealable order for relief under any
bankruptcy, insolvency or similar law now or hereafter in effect has been
entered against the Partner, (c) the Partner executes and delivers a general
assignment for the benefit of the Partner's creditors, (d) the Partner files an
answer or other pleading admitting or failing to contest the material
allegations of a petition filed against the Partner in any proceeding of the
nature described in clause (b) above, (e) the Partner seeks, consents to or
acquiesces in the appointment of a trustee, receiver or liquidator for the
Partner or for all or any substantial part of the Partner's properties, (f) any
proceeding seeking liquidation, reorganization or other relief under any
bankruptcy, insolvency or other similar law now or hereafter in effect has not
been dismissed within one hundred twenty (120) days after the commencement
thereof, (g) the appointment without the Partner's consent or acquiescence of a
trustee, receiver or liquidator has not been vacated or stayed within ninety
(90) days of such appointment, or (h) an
8
appointment referred to in clause (g) above is not vacated within ninety (90)
days after the expiration of any such stay.
"INDEMNITEE" means (i) any Person made a party to a proceeding by reason
of its status as (a) the General Partner, (b) a ▇▇▇▇▇▇▇ Limited Partner or (c) a
director or member of the General Partner or a ▇▇▇▇▇▇▇ Limited Partner or an
officer or employee of the Partnership, the General Partner or a ▇▇▇▇▇▇▇ Limited
Partner and (ii) such other Affiliates of the General Partner or the Partnership
as the General Partner may designate from time to time, in its Sole and Absolute
Discretion; provided that each of the ▇▇▇▇▇▇▇ Limited Partners and their
respective directors, members, officers and employees shall be deemed an
"Indemnitee" only to the extent that such Person is covered under the insurance
policies of the Partnership and its Subsidiaries.
"INDENTURE" has the meaning set forth in Section 4.5 hereof.
"IRS" means the United States Internal Revenue Service.
"ISTAR" means iStar Financial, Inc. and any Subsidiary thereof.
"JQH" means ▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇▇▇.
"JQH BORROWER" means [PROJECT HOLDCO], as borrower under the JQH Line of
Credit.
"JQH LINE OF CREDIT" means the Loan Agreement, dated as of the Effective
Date, by and between [PROJECT HOLDCO] and Lendco.
"JQH LIQUIDATION NOTICE DATE" has the meaning set forth in the definition
of "Liquidation Notice Date."
"JQH TRUST" has the meaning set forth in the Preamble hereof.
"LENDCO" means Atrium Lendco LLC, a Delaware limited liability company.
"LENDER TRANSFER" has the meaning set forth in Section 11.3(a).
"LIBOR DIFFERENTIAL" means, with respect to any period for which such
calculation is made, an amount equal to (a) all amounts incurred (including all
interest charges accrued) by Lendco during such period under the loan incurred
by Lendco to fund the JQH Line of Credit, less (b) all amounts incurred
(including all interest charges accrued) by the JQH Borrower during such period
under the JQH Line of Credit.
"LIMITED PARTNER" means the ▇▇▇▇▇▇▇ Limited Partners and any additional
Person that is admitted as a limited partner in accordance with this Agreement
from time to time to the Partnership and is listed on Exhibit A attached hereto,
as such Exhibit A may be amended from time to time, and any Substituted Limited
Partner or Additional Limited Partner, each shown as such in the books and
records of the Partnership, in such Person's capacity as a limited partner in
the Partnership.
"LIMITED PARTNER INTEREST" means a Partnership Interest of a Limited
Partner in the Partnership representing a fractional part of the Partnership
Interests of all Limited Partners and includes any and all benefits to which the
holder of such a Partnership Interest may be entitled as provided in this
Agreement, together with all obligations of such Person to comply with the terms
and provisions of this Agreement. A Limited Partner Interest may be expressed as
a number of Partnership Common Units, ▇▇▇▇▇▇▇ Preferred Units or other
Partnership Units.
"LIQUIDATING EVENT" has the meaning set forth in Section 13.1 hereof.
"LIQUIDATION COMMENCEMENT DATE" has the meaning set forth in Section
15.1(b) hereof.
"LIQUIDATION COMPLETION DEADLINE" has the meaning set forth in Section
15.1(b) hereof.
9
"LIQUIDATION NOTICE" has the meaning set forth in Section 15.1(a) hereof.
"LIQUIDATION NOTICE DATE" means the first Business Day following the
earlier to occur of (i) the death of JQH at any time after the first month
following the seventh anniversary of the Effective Date (the "JQH LIQUIDATION
NOTICE DATE") and (ii) the Calendar Liquidation Notice Date.
"LIQUIDATION RIGHT" has the meaning set forth in Section 15.1(a) hereof.
"LIQUIDATION VALUE" means an amount equal to (a) the gross proceeds that
would be received from the sale of all of the Properties in connection with the
liquidation and winding up of the Partnership in an orderly transaction (or
series of transactions) designed to maximize the proceeds therefrom, as between
a willing buyer and a willing seller, both in possession of reasonable knowledge
of all relevant facts, with neither party being under any compulsion to act or
not to act, in an arm's-length transaction, taking into account all relevant
factors determinative of value less (b) an amount equal to 2.25% of such
proceeds, less (c) Net Debt, provided that Liquidation Value shall be determined
without taking into account the Management Agreement or any Undistributed
Operating Cash.
"LIQUIDATOR" has the meaning set forth in Section 13.2(a) hereof.
"LOC DEFAULT" means any material default by the JQH Borrower under the JQH
Line of Credit to the extent not cured within the applicable time period
therefor as provided therein.
"MANAGEMENT AGREEMENT" has the meaning set forth in Section 8.3 hereof.
"MAJORITY APPROVAL OF THE PARTNERS" means the Approval of a Majority in
Interest of the Partners, which Approval shall be obtained prior to the taking
of any action for which it is required by this Agreement and, except as
otherwise provided in this Agreement, may be given or withheld by a Majority in
Interest of the Partners, in their reasonable discretion; provided that if any
such action adversely affects only certain classes or series of Partnership
Units, "APPROVAL OF THE PARTNERS" means the Approval of a Majority in Interest
of the Partners of the affected classes or series of Partnership Units.
"MAJORITY IN INTEREST OF THE PARTNERS" means Partners holding more than
fifty percent (50%) of the number of all outstanding Partnership Units entitled
to Approval of or withhold Approval from a proposed action.
"NET DEBT" means, as of the applicable Partnership Record Date, an amount
equal to (a) the outstanding amount of indebtedness for borrowed money of the
Partnership and its Subsidiaries (it being understood that the amounts of such
indebtedness of such Subsidiaries shall be counted for this purpose only to the
extent of the Partnership's interest in such Subsidiaries), less (b) the
aggregate amount of Cash of the Partnership and its Subsidiaries (it being
understood that the amounts of Cash of such Subsidiaries shall be counted for
this purpose only to the extent of the Partnership's interest in such
Subsidiaries).
"NET INCOME" or "NET LOSS" means, for each Partnership Year of the
Partnership, an amount equal to the Partnership's taxable income or loss for
such year (treating, for avoidance of doubt, any amounts paid by the Partnership
pursuant to the Tax Indemnity Agreement as items of expense in calculating the
Partnership's taxable income), determined in accordance with Code Section 703(a)
(for this purpose, all items of income, gain, loss or deduction required to be
stated separately pursuant to Code Section 703(a)(1) shall be included in
taxable income or loss), with the following adjustments:
(a) Any income of the Partnership that is exempt from Federal income
tax and not otherwise taken into account in computing Net Income (or Net
Loss) pursuant to this definition of "Net Income" or "Net Loss" shall be
added to (or subtracted from, as the case may be) such taxable income (or
loss);
(b) Any expenditure of the Partnership described in Code Section
705(a)(2)(b) or treated as a Code Section 705(a)(2)(b) expenditure
pursuant to Regulations Section 1.704-1(b)(2)(iv)(i), and not otherwise
taken into account in computing Net Income (or Net Loss) pursuant to this
definition of "Net
10
Income" or "Net Loss," shall be subtracted from (or added to, as the case
may be) such taxable income (or loss);
(c) In the event the Gross Asset Value of any Partnership Property
is adjusted pursuant to subsection (b) or subsection (c) of the definition
of "Gross Asset Value," the amount of such adjustment shall be taken into
account as gain or loss from the disposition of such asset for purposes of
computing Net Income or Net Loss;
(d) Gain or loss resulting from any disposition of 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 the
property disposed of, notwithstanding that the adjusted tax basis of such
property differs from its Gross Asset Value;
(e) In lieu of the depreciation, amortization and other cost
recovery deductions that would otherwise be taken into account in
computing such taxable income or loss, there shall be taken into account
Tax Depreciation for such Partnership Year;
(f) To the extent that an adjustment to the adjusted tax basis of
any Partnership Property pursuant to Code Section 734(b) or Code Section
743(b) is required pursuant to Regulations Section 1.704-1(b)(2)(iv)(m)(4)
to be taken into account in determining Capital Accounts as a result of a
distribution other than in liquidation of a Partner's interest in the
Partnership, the amount of such adjustment shall be treated as an item of
gain (if the adjustment increases the basis of the asset) or loss (if the
adjustment decreases the basis of the asset) from the disposition of the
asset and shall be taken into account for purposes of computing Net Income
or Net Loss; and
(g) Notwithstanding any other provision of this definition of "Net
Income" or "Net Loss," any item that is specially allocated pursuant to
Section 6.3 hereof shall not be taken into account in computing Net Income
or Net Loss. The amounts of the items of Partnership income, gain, loss or
deduction available to be specially allocated pursuant to Section 6.3
hereof shall be determined by applying rules analogous to those set forth
in this definition of "Net Income" or "Net Loss."
"NET WORTH" means an amount equal to the greater of (a) Liquidation Value
and (b) Going Concern Value; provided that Net Worth shall mean (i) an amount
equal to the sum of the capital accounts as of the Effective Time of the General
Partner and the ▇▇▇▇▇▇▇ Limited Partners during the twelve-month period
commencing on the Effective Date and (ii) Liquidation Value during the
twelve-month period immediately preceding the Liquidation Completion Deadline.
"NET WORTH THRESHOLD" means (a) until the earlier to occur of such time as
(i) the Liquidation Notice is delivered in accordance with Section 15.1 (the
"LIQUIDATION NOTICE DELIVERY") and (ii) it has been reasonably established that
TRS has terminated the Management Agreement in violation of the terms thereunder
(any such termination so established, a "WRONGFUL TERMINATION EVENT"), an amount
equal to $425 million, and (b) after the earlier to occur of (i) the Liquidation
Notice Delivery and (ii) a Wrongful Termination Event, an amount equal to $500
million; provided that after any of the Early Liquidity Units have been
purchased pursuant to Section 15.3, Net Worth Threshold shall mean (a) until the
earlier to occur of (i) the Liquidation Notice Delivery and (ii) a Wrongful
Termination Event, an amount equal to (A) $425 million, less (B) the product of
$425 million, multiplied by the quotient of (1) the aggregate amount, if any, of
the Early Liquidity Price paid prior to such time by the Partnership and the
Required Holders pursuant to Section 15.3 upon purchase of the Early Liquidity
Units thereunder, divided by (2) $335 million, and (b) after the earlier to
occur of (i) the Liquidation Notice Delivery and (ii) a Wrongful Termination
Event, an amount equal to (A) $500 million, less (B) the product of $500
million, multiplied by the quotient of (1) the aggregate amount, if any, of the
Early Liquidity Price paid prior to such time by the Partnership and the
Required Holders pursuant to Section 15.3 upon purchase of the Early Liquidity
Units thereunder, divided by (2) $335 million.
"NEUTRAL EXPERT" means (i) in the case of a disagreement with respect to
the determination of Operating Cash, Available Closing Cash or Other Cash,
[____________] or such other nationally recognized, independent public
accounting firm to which the General Partner and the ▇▇▇▇▇▇▇ Representative may
agree in writing, (ii) in
11
the case of a disagreement with respect to the determination of the Going
Concern Value, [____________] or such other independent, nationally recognized
investment banking firm to which the General Partner and the ▇▇▇▇▇▇▇
Representative may agree in writing and (iii) in the case of a disagreement with
respect to the determination of the Liquidation Value, [____________] or such
other independent, nationally recognized real estate appraisal or valuation firm
to which the General Partner and the ▇▇▇▇▇▇▇ Representative may agree in
writing.(1)
"NEW JQH LLC" means ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Hotels Management, LLC, a limited
liability company formed under the laws of the state of Delaware, and party to
the Management Agreement.
"NONRECOURSE DEDUCTIONS" has the meaning set forth in Regulations Section
1.704-2(b)(1), and the amount of Nonrecourse Deductions for a Partnership Year
shall be determined in accordance with the rules of Regulations Section
1.704-2(c).
"NONRECOURSE LIABILITY" has the meaning set forth in Regulations Section
1.752-1(a)(2).
"NOTE DEFICIENCY" has the meaning set forth in Section 4.5 hereof.
"NOTE DEFICIENCY CAPITAL CONTRIBUTION" has the meaning set forth in
Section 4.5 hereof.
"NOTE DEFICIENCY NOTICE" has the meaning set forth in Section 4.5 hereof.
"NOTES" has the meaning set forth in Section 4.5 hereof.
"OPERATING CASH" means, with respect to any fiscal quarter for which such
calculation is being made, an amount equal to the Cash Flow generated for such
fiscal quarter, less the Required Reserve for such fiscal quarter.
"OTHER CASH" means, as of the applicable Partnership Record Date, the
aggregate amount of all Cash of the Partnership and its Subsidiaries, other than
Available Closing Cash and Undistributed Operating Cash.
"OTHER LIMITED PARTNERS" means all of the Limited Partners other than the
▇▇▇▇▇▇▇ Limited Partners.
"PARTNER" means the General Partner or a Limited Partner, and "PARTNERS"
means the General Partner and the Limited Partners.
"PARTNER MINIMUM GAIN" means an amount, with respect to each Partner
Nonrecourse Debt, equal to the Partnership Minimum Gain that would result if
such Partner Nonrecourse Debt were treated as a Nonrecourse Liability,
determined in accordance with Regulations Section 1.704-2(i)(3).
"PARTNER NONRECOURSE DEBT" has the meaning set forth in Regulations
Section 1.704-2(b)(4).
"PARTNER NONRECOURSE DEDUCTIONS" has the meaning set forth in Regulations
Section 1.704-2(i)(2), and the amount of Partner Nonrecourse Deductions with
respect to a Partner Nonrecourse Debt for a Partnership Year shall be determined
in accordance with the rules of Regulations Section 1.704-2(i)(2).
"PARTNERSHIP" means the limited partnership formed and continued under the
Act and pursuant to the Prior Agreement, this Agreement, and any amendments
thereto.
"PARTNERSHIP COMMON UNIT" means a fractional share of the Partnership
Interests that the General Partner has authorized pursuant to Article IV hereof
that has the rights and obligations specified with respect to Partnership
--------
(1) ▇▇. ▇▇▇▇▇▇▇ to propose Neutral Experts. As of the Effective Date, each
selected Neutral Expert will have entered into an agreement with the
Partners providing that such Neutral Expert has not had, does not have,
and will not have (other than to serve as a Neutral Expert) a business
relationship with the Partnership, the General Partner, JQH, or any of the
▇▇▇▇▇▇▇ Limited Partners.
12
Common Units in this Agreement, but does not include any ▇▇▇▇▇▇▇ Preferred Unit
or any other ▇▇▇▇▇▇▇ Preferred Units specified in a Partnership Unit Designation
as being other than a Partnership Common Unit; provided, however, that the
General Partner Interest and the Limited Partner Interests shall have the
differences in rights and privileges as specified in this Agreement.
"PARTNERSHIP INTEREST" means an ownership interest in the Partnership
representing a Capital Contribution by either a Limited Partner or the General
Partner and includes any and all benefits to which the Holder of such a
Partnership Interest may be entitled as provided in this Agreement, together
with all obligations of such Person to comply with the terms and provisions of
this Agreement. The Partnership Interest of each Partner shall be expressed as a
number of Partnership Common Units or ▇▇▇▇▇▇▇ Preferred Units or other
Partnership Units and shall be evidenced by a Partnership Unit Certificate.
"PARTNERSHIP MINIMUM GAIN" has the meaning set forth in Regulations
Section 1.704-2(b)(2), and the amount of Partnership Minimum Gain, as well as
any net increase or decrease in Partnership Minimum Gain, for a Partnership Year
shall be determined in accordance with the rules of Regulations Section
1.704-2(d).
"PARTNERSHIP RECORD DATE" means the record date established by the General
Partner from time to time for the Distribution of Operating Cash, Closing Cash
or Other Cash pursuant to Section 5.1.
"PARTNERSHIP REDEMPTION DATE" means the first Business Day following the
death of JQH.
"PARTNERSHIP REDEMPTION NOTICE" has the meaning set forth in Section
15.2(a) hereof.
"PARTNERSHIP REDEMPTION RIGHT" has the meaning set forth in Section
15.2(a) hereof.
"PARTNERSHIP UNIT" shall mean a Partnership Common Unit, a ▇▇▇▇▇▇▇
Preferred Unit or any other fractional share of the Partnership Interests that
the General Partner has authorized or may authorize pursuant to Section 4.1 or
Section 4.2 or Section 4.3 hereof. The ownership of Partnership Units shall be
evidenced by Partnership Unit Certificates.
"PARTNERSHIP UNIT CERTIFICATE" means a certificate for Partnership Common
Units, ▇▇▇▇▇▇▇ Preferred Units or any other Partnership Units issued in the form
attached hereto as Exhibit D or such other certificate issued by the Partnership
to evidence a Partnership Unit.
"PARTNERSHIP UNIT DESIGNATION" has the meaning set forth in Section 4.2(a)
hereof.
"PARTNERSHIP YEAR" means the fiscal year of the Partnership.
"PERCENTAGE INTEREST" means, as to each Partner, its interest in the
Partnership Units, as determined by dividing the Partnership Units owned by such
Partner by the aggregate number of Partnership Units then outstanding.
"PERMITTED TRANSFER" has the meaning set forth in Section 11.3(a) hereof.
"PERSON" means an individual or a corporation, partnership, trust,
unincorporated organization, association, limited liability company or other
entity.
"PREFERRED ALLOCATIONS PERCENTAGE" means, as of any time, a fraction,
expressed as a percentage, (a) the numerator of which is equal to the product of
2.5, multiplied by the aggregate number of all ▇▇▇▇▇▇▇ Preferred Units
outstanding as of such time, and (b) the denominator of which is equal to the
aggregate number of all Partnership Units outstanding as of such time.
"PREFERRED REDEMPTION PRICE" means an amount equal to the balance, if any,
of the positive Capital Account balances of the ▇▇▇▇▇▇▇ Limited Partners, after
giving effect to all contributions, distributions and allocations for all
periods, including the effects of a Book-up of Capital Accounts, but no less
than the Capital
13
Accounts shown for ▇▇▇▇▇▇▇ Preferred Units (other than the ▇▇▇▇▇▇▇ Preferred
Units purchased by the Partnership or the Required Holders pursuant to Section
15.3) as of the Effective Time on Exhibit A.
"PRIOR AGREEMENT" has the meaning set forth in the Introduction hereof.
"PROPERTIES" means all of the assets and properties of the Partnership and
its Subsidiaries, including, without limitation, interests in real property and
personal property, including, without limitation, fee interests, leasehold
interests, interests in ground leases, easements and rights of way, air rights,
surface rights, subsurface rights, interests in limited liability companies,
joint ventures, partnerships or other entities, interests in mortgages, and Debt
instruments as the Partnership may hold from time to time, and "PROPERTY" shall
mean any one such asset or property.
"PROTECTED PROPERTIES" has the meaning set forth in the Tax Indemnity
Agreement.
"PUBLICLY TRADED" means listed or admitted to trading on any U.S. national
securities exchange or the NASDAQ Stock Market's National Market System.
"QUALIFIED INDEPENDENT CONTRACTOR" means a company (i) regularly engaged
in managing at least two Qualified Lodging Facilities for a Person who is not
related (within the meaning of Code Section 856(d)(9)(F)) to any Taxable REIT
Subsidiary, to iStar or to any other REIT which has made a taxable REIT
subsidiary election with such Taxable REIT Subsidiary, and (ii) from which iStar
and any other such REIT receives no income.
"QUALIFIED LODGING FACILITY" means a hotel, motel or other establishment
more than one-half of the dwelling units in which are used on a transient basis,
including customary amenities and facilities operated as part of, or associated
with, the lodging facility, so long as such amenities and facilities are
customary for other properties of a comparable size and class owned by other
unrelated owners, and where no wagering activities are conducted at or in
connection with such facility by any Person who is engaged in the business of
accepting ▇▇▇▇▇▇ and who is legally authorized to engage in such business at or
in connection with such facility, as more fully defined under Code Section
856(d)(9)(D).
"QUALIFIED REFINANCING DEBT" means, as of any time, any new or refinanced
Debt of the Partnership or any Subsidiary of the Partnership, to the extent that
the sum of (a) the original principal amount of such new or refinanced Debt and
(b) the aggregate amount of all other outstanding Debt of the Partnership and
its Subsidiaries (including all accrued (but unpaid) interest on such
outstanding Debt) immediately after the incurrence of such new or refinanced
Debt does not exceed the sum of (x) the aggregate amount of all of the Debt of
the Partnership and its Subsidiaries outstanding as of the Effective Date
(including all accrued (but unpaid) interest on such outstanding Debt), less the
aggregate amount, if any, of Allocated Property-Level Debt of the Properties set
forth on Exhibit B that have been sold (other than in connection with a Code
Section 1031 transaction) after the Effective Date through such time, less the
amount, if any, by which the aggregate amount of Allocated Property-Level Debt
of the Properties set forth on Exhibit B that have been disposed of after the
Effective Date through such time in connection with a Code Section 1031
transaction exceeds the aggregate amount of Debt secured by the replacement
properties acquired in exchange for such Properties and (y) the aggregate amount
of all costs and expenses associated with the incurrence of such new or
refinanced Debt, including, without limitation, any prepayment penalties,
premiums (including any tender premiums) or "make whole" amounts payable in
connection with the incurrence of such new or refinanced Debt, provided that in
the case of the incurrence of any new or refinanced Debt in connection with the
refinancing of the Notes, for purposes of this clause (y), the aggregate amount
of all tender premiums payable in connection with any such refinancing (the
"TENDER PREMIUMS") shall not exceed $25 million, unless the aggregate amount of
savings in interest payments resulting from the incurrence of such new Debt
(calculated over a ten-year period, commencing on the date of such incurrence,
and without taking into account the time value of such savings) is greater than
the amount by which the Tender Premiums exceed the redemption premiums
applicable as of such time (or in the absence of premiums that are applicable as
of such time, the redemption premiums next applicable) under Section 3.07(c) of
the Indenture.
"QUALIFIED TRANSFEREE" means any Person, other than (a) any natural person
who has been convicted of a felony or any crime involving moral turpitude, in
each case, within the five-year period prior to the time of the applicable
Transfer and (b) any Person that is not a natural person, whose controlling
equity holder, chairman or
14
chief executive officer or similar officer has been convicted of a felony or any
crime involving moral turpitude, in each case, within the five-year period prior
to the time of the applicable Transfer.
"QUALIFYING TENANT" has the meaning set forth in Section 3.5.
"RECAPTURE INCOME" means income that is characterized as ordinary income
pursuant to Code Sections 1245 or 1250.
"REGULATIONS" means the income tax regulations under the Code, whether
such regulations are in proposed, temporary or final form, 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 6.3(b)
(viii) hereof.
"REIT" means a "real estate investment trust" as defined under Code
Section 856.
"REIT PARTNER" means a REIT which is a Partner or which directly or
indirectly owns a Partner.
"REIT STATUS" means qualification as a "real estate investment trust"
within the meaning of Code Section 856(a).
"REMAINING EARLY LIQUIDITY PRICE" means, as of any time, an amount equal
to (a) the Early Liquidity Price, less (b) the aggregate amount, if any, of the
Early Liquidity Price paid prior to such time by the Partnership and the
Required Holders pursuant to Section 15.3 upon purchase of the Early Liquidity
Units thereunder.
"REQUIRED HOLDERS" has the meaning set forth in Section 15.3(b).
"REQUIRED RESERVE" means an amount equal to 5.0% of Gross Revenues through
the seventh anniversary of the Effective Date and 5.5% of Gross Revenues
thereafter.
"REVERSE CODE SECTION 704(c) GAIN" means any item affecting the
computation of taxable income that is subject to a special allocation after a
Book-up pursuant to Regulations Section 1.704-1(b)(4)(i).
"SEC" means the Securities and Exchange Commission.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and the
rules and regulations of the SEC promulgated thereunder.
"SOLE AND ABSOLUTE DISCRETION" has the meaning set forth in Section 7.8.
"STIPULATED FIRST YEAR NET WORTH" has the meaning set forth in Section
5.4.
"SUBSIDIARY" means, with respect to any Person, any corporation, limited
liability company, partnership, association or other business entity of which
(i) if a corporation, a majority of the total voting power of shares of stock
entitled (without regard to the occurrence of any contingency) to vote in the
election of directors, managers or trustees thereof is at the time owned or
controlled, directly or indirectly, by that Person or one or more of the other
Subsidiaries of that Person or a combination thereof or (ii) if a limited
liability company, partnership, association or other business entity (other than
a corporation), (x) a majority of the partnership or other similar ownership
interests thereof is at the time owned or controlled, directly or indirectly, by
that Person or one or more Subsidiaries of that Person or a combination thereof,
and for this purpose, a Person or Persons own a majority ownership interest in
such a business entity (other than a corporation) if such Person or Persons
shall be allocated a majority of such business entity's gains or losses or (y)
that Person shall be or control any managing director or general partner
controlling such business entity (other than a corporation).
15
"SUBSTITUTED LIMITED PARTNER" means a Person who is admitted as a Limited
Partner to the Partnership pursuant to Section 11.4 hereof.
"TARGET PARTICIPATION AMOUNT" means the greater of (a) the excess, if any,
of the cumulative amounts credited to the Capital Accounts of the Holders of
▇▇▇▇▇▇▇ Preferred Units after the Effective Time (other than pursuant to Section
6.2(b)(i)) over the cumulative amounts debited against such Holders' Capital
Accounts after the Effective Time and (b) 5% of the first $100 million of
Appreciation and 3% of all Appreciation in excess of $100 million, where
"APPRECIATION" equals the difference (only if positive) derived by subtracting
the Threshold Value from the Special Liquidation Value. For this purpose, (i)
"THRESHOLD VALUE" equals the sum of (A) (x) the Initial Value grown at 0.125%
per month, but compounded annually, from the Effective Date through the last
valuation date prior to the delivery of the Liquidation Notice, reduced by (y)
previously Distributed Closing Cash, plus (B) the Special Capital Contributions,
with each related Capital Contribution (and related transaction costs) grown at
0.67% per month, but compounded annually, from the date on which such Capital
Contribution was made through the last valuation date prior to the delivery of
the Liquidation Notice; (ii) "SPECIAL LIQUIDATION VALUE" equals the Liquidation
Value as determined most recently prior to the delivery of the Liquidation
Notice; (iii) "INITIAL VALUE" equals the sum of the Debt of the Partnership and
its Subsidiaries as of the Effective Time and the Capital Accounts balances of
the Partners as of the Effective Time as set forth on Exhibit A; and (iv)
"SPECIAL CAPITAL CONTRIBUTIONS" equals the aggregate amount of Capital
Contributions made after the Effective Time and all transactions costs related
thereto.
"TAXABLE REIT SUBSIDIARY" means any entity treated as a corporation under
the Code which (i) to the extent it is a lessee of any lodging facility, leases
only Qualified Lodging Facilities which are managed by a Qualified Independent
Contractor, (ii) which executes an election on the applicable IRS form with
iStar and such other REITs as they so request to be treated as a "taxable REIT
subsidiary" thereof for purposes of Code Section 856, and (iii) which is not
engaged in managing any lodging facilities or health care facilities within the
meaning of Code Section 856(l)(4).
"TAX DEPRECIATION" means, for each Partnership Year or other applicable
period, an amount equal to the Federal income tax depreciation, amortization or
other cost recovery deduction allowable with respect to an asset for such year
or other period, except that if the Gross Asset Value of an asset differs from
its adjusted basis for Federal income tax purposes at the beginning of such year
or other period, Tax Depreciation shall be in an amount that bears the same
ratio to such beginning Gross Asset Value as the Federal income tax
depreciation, amortization or other cost recovery deduction for such year or
other period bears to such beginning adjusted tax basis; provided, however, that
if the Federal income tax depreciation, amortization or other cost recovery
deduction for such year or period is zero, Tax Depreciation shall be determined
with reference to such beginning Gross Asset Value using any reasonable method
selected by the General Partner.
"TAX INDEMNITY AGREEMENT" means the Tax Indemnity Agreement, dated as of
the Effective Date, by and among JQH, the ▇▇▇▇▇▇▇ Limited Partners and the
Partnership.
"TAX ITEMS" has the meaning set forth in Section 6.4(a) hereof.
"TRS" means [____________], a wholly-owned subsidiary of the Partnership.
"TENDER PREMIUMS" has the meaning set forth in the definition of
"Qualified Refinancing Debt."
"TRANSACTION AGREEMENT" means the Amended and Restated Transaction
Agreement, dated as of June [__], 2005, by and among JD Holdings, LLC, a
Delaware limited liability company, JQH Acquisition, LLC, a Delaware limited
liability company, JQH, JQH Trust, ▇▇▇▇▇▇▇, Inc. and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Hotels,
Inc., a Delaware corporation, as the same may be amended, supplemented or
otherwise modified from time to time in accordance with its terms.
"TRANSFER" means any sale, assignment, bequest, conveyance, devise, gift
(outright or in trust), pledge, encumbrance, hypothecation, mortgage, exchange,
transfer or other disposition (whether by merger, consolidation or otherwise) or
act of alienation, whether voluntary or involuntary, or by operation of law;
provided, however, that
16
when the term is used in Article 11 hereof, "TRANSFER" does not include (a) any
redemption of ▇▇▇▇▇▇▇ Preferred Units by the Partnership, or acquisition of
▇▇▇▇▇▇▇ Preferred Units by the General Partner or any of its Affiliates,
pursuant to Article 15 or (b) any redemption of Partnership Units pursuant to
any Partnership Unit Designation. The terms "TRANSFERRED" and "TRANSFERRING"
have correlative meanings.
"TRANSFER PROVISIONS" has the meaning set forth in Section 11.7.
"TRUSTEE" has the meaning set forth in Section 4.5 hereof.
"UNDISTRIBUTED CLOSING CASH" means, as of the applicable Partnership
Record Date, the aggregate amount of Closing Cash that remains available for
distribution pursuant to Section 5.1(a)(ii).
"UNDISTRIBUTED OPERATING CASH" means, as of the applicable Partnership
Record Date, the aggregate amount of Operating Cash that remains available for
distribution pursuant to Section 5.1(a)(i).
ARTICLE 2
ORGANIZATIONAL MATTERS
Section 2.1 Continuation of Partnership. The Partnership is a limited
partnership heretofore formed and continued pursuant to the provisions of the
Act and upon the terms and subject to the conditions set forth in this
Agreement. Except as expressly provided herein to the contrary, the rights and
obligations of the Partners and the administration and termination of the
Partnership shall be governed by the Act. The Partnership Interest of each
Partner shall be personal property for all purposes.
Section 2.2 Name. The name of the Partnership shall be changed, as of the
Effective Time, from "▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Hotels, L.P." to "Atrium Hotels, L.P.";
provided that in the event that the Indenture or any of the related security
agreements prohibit such a name change, such name change shall be effected no
later than 30 days after such time as all such prohibitions, if any, cease to be
effective. The Partnership's business may be conducted under any other name or
names deemed advisable by the General Partner, including the name of the General
Partner or any Affiliate thereof. The words "Limited Partnership," "L.P.,"
"Ltd." or similar words or letters shall be included in the Partnership's name
where necessary for the purposes of complying with the laws of any jurisdiction
that so requires. The General Partner in its Sole and Absolute Discretion may
change the name of the Partnership at any time and from time to time and shall
notify the Limited Partners in writing of such change no later than 30 days
after any such change. Notwithstanding the foregoing, except with respect to the
name, "JQH Acquisition LLC" and except as provided in the Management Agreement
or in connection with any filings made under the Securities Act and subject to
the requirements under the Indenture or any of the related security agreements,
without the Consent of the ▇▇▇▇▇▇▇ Limited Partners, the Partnership, the
General Partner and its Affiliates and Subsidiaries shall not use the names
"▇▇▇▇▇▇▇," or "▇▇▇▇ ▇. ▇▇▇▇▇▇▇," or the initials "JQH" in any of their
activities, promotions, brochures, stationery, products, or any other respect
and shall not use any such name or names in any business context.
Section 2.3 Registered Office and Agent; Principal Office. The address of
the registered office of the Partnership in the State of Delaware is ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and the registered agent for service of
process on the Partnership in the State of Delaware at such registered office is
The Corporation Service Company. The principal office of the Partnership is
located at [________________________________], or such other place as the
General Partner may from time to time designate by notice to the Limited
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.
Section 2.4 Power of Attorney.
(a) Subject to the limitations of Section 14.2, each Limited Partner
and Assignee hereby constitutes and appoints the General Partner, any
Liquidator, and authorized officers and attorneys-in-fact of each, and
each of those acting singly, in each case with full power of substitution
to act in good faith as its true and lawful agent and attorney-in-fact,
with full power and authority in its name, place and stead to:
17
(i) execute, swear to, seal, acknowledge, deliver, file and
record in the appropriate public offices (a) all certificates,
documents and other instruments (including, without limitation, this
Agreement and the Certificate and all amendments, supplements or
restatements thereof) that the General Partner or the Liquidator
deems appropriate or necessary to form, qualify or continue the
existence or qualification of the Partnership as a limited
partnership (or a partnership in which the limited partners have
limited liability to the extent provided by applicable law) in the
State of Delaware and in all other jurisdictions in which the
Partnership may conduct business or own property; (b) all
instruments that the General Partner deems appropriate or necessary
to reflect any amendment, change, modification or restatement of
this Agreement in accordance with its terms; (c) all conveyances and
other instruments or documents that the General Partner or the
Liquidator, as the case may be, deems appropriate or necessary to
reflect the dissolution and liquidation of the Partnership pursuant
to the terms of this Agreement, including, without limitation, a
certificate of cancellation; and (d) all instruments relating to the
Capital Contribution of any Partner or the admission, withdrawal,
removal or substitution of any Partner made pursuant to the terms of
this Agreement; and
(ii) execute, swear to, acknowledge and file the ballots,
consents, approvals, waivers, certificates and other instruments
appropriate or necessary to make, evidence, give, confirm or ratify
any vote, consent, approval, agreement or other action that is made
or given by the Partners hereunder or is consistent with the terms
of this Agreement or appropriate or necessary to effectuate the
terms or intent of the parties to this Agreement.
Nothing contained herein shall be construed as authorizing the General Partner
to (A) amend this Agreement except in accordance with Section 14.2 hereof or as
may be otherwise expressly provided for in this Agreement or (B) limit in any
manner the right of the ▇▇▇▇▇▇▇ Limited Partners to consent to the actions
specified herein that require the Consent of the ▇▇▇▇▇▇▇ Limited Partners.
(b) The foregoing power of attorney is hereby declared to be
irrevocable and a power coupled with an interest, in recognition of the
fact that each of the Partners and Assignees will be relying upon the
power of the General Partner to act as contemplated by this Agreement in
any filing or other action by it on behalf of the Partnership, and it
shall survive and not be affected by the subsequent Incapacity of any
Limited Partner or Assignee and the Transfer of all or any portion of such
Person's Partnership Interest and shall extend to such Person's heirs,
successors, assigns and personal representatives. Each Limited Partner
shall execute and deliver to the General Partner or the Liquidator, within
fifteen (15) days after receipt of the General Partner's or the
Liquidator's request therefor, such further designation, powers of
attorney and other instruments as the General Partner or the Liquidator,
as the case may be, deems necessary to effectuate this Agreement and the
purposes of the Partnership. Notwithstanding anything else set forth in
this Section 2.4(b), no Limited Partner shall incur any personal liability
for any action of the General Partner or the Liquidator taken under such
power of attorney.
Section 2.5 Term. The term of the Partnership commenced on September 5,
1989, the date that the original Certificate was filed in the office of the
Secretary of State of Delaware in accordance with the Act, and shall continue
indefinitely(2) unless the Partnership is dissolved sooner pursuant to the
provisions of Article 13 hereof or as otherwise provided by law.
ARTICLE 3
PURPOSE
Section 3.1 Purpose and Business. The purpose and nature of the
Partnership is to conduct any business, enterprise or activity permitted by or
under the Act, including, without limitation, (i) to conduct the business of
ownership, construction, reconstruction, development, redevelopment, alteration,
improvement, maintenance, operation, sale, leasing, transfer, encumbrance,
conveyance and exchange of the Properties, (ii) to
--------------------
(2) Need to review Certificate and conform term to Certificate (or change the
term in the Certificate).
18
enter into any partnership, joint venture, business trust arrangement, limited
liability company or other similar arrangement to engage in any business
permitted by or under the Act, or to own interests in any entity engaged in any
business permitted by or under the Act, (iii) to conduct the business of
providing property and asset management, whether directly or through one or more
partnerships, joint ventures, Subsidiaries, business trusts, limited liability
companies or similar arrangements, and (iv) to do anything necessary or
incidental to the foregoing.
Section 3.2 Powers. Subject to Section 7.3, the Partnership shall have all
powers necessary or desirable to accomplish the purposes set forth in Section
3.1. In connection with, and without limiting the generality of, the foregoing,
subject to the terms and conditions of this Agreement, (a) the Partnership shall
have full power and authority to enter into, perform and carry out contracts of
any kind, to borrow and lend money and to issue evidence of indebtedness,
whether or not secured by mortgage, deed of trust, pledge or other lien and,
directly or indirectly, to acquire and construct additional Properties
necessary, useful or desirable in connection with its business; and (b) the
Partnership shall have full power and authority to do any and all other acts and
things necessary, appropriate, proper, advisable, 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.
Section 3.3 Partnership Only for Purposes Specified. This Agreement shall
not be deemed to create a company, venture or partnership between or among the
Partners or any other Persons with respect to any activities whatsoever other
than the activities within the purposes of the Partnership as specified in
Section 3.1 hereof. Except as otherwise provided in this Agreement, no Partner
shall have any authority to act for, bind, commit or assume any obligation or
responsibility on behalf of the Partnership, its properties or any other
Partner. No Partner, in its capacity as a Partner under this Agreement, shall be
responsible or liable for any indebtedness or obligation of another Partner, nor
shall the Partnership be responsible or liable for any indebtedness or
obligation of any Partner, incurred either before or after the execution and
delivery of this Agreement by such Partner, except as to those responsibilities,
liabilities, indebtedness or obligations incurred pursuant to and as limited by
the terms of this Agreement and the Act.
Section 3.4 Representations and Warranties by the Partners.
(a) Each Partner that is a natural person (including, without
limitation, each Additional Limited Partner or Substituted Limited Partner
as a condition to becoming an Additional Limited Partner or a Substituted
Limited Partner) represents and warrants to, and covenants with, each
other Partner that (i) the consummation of the transactions contemplated
by this Agreement to be performed by such Partner will not result in a
breach or violation of, or a default under, any material agreement by
which such Partner or any of such Partner's property to be contributed is
bound, or any statute, regulation, order or other law to which such
Partner is subject, (ii) such Partner is neither a "foreign person" within
the meaning of Code Section 1445(f) nor a "foreign partner" within the
meaning of Code Section 1446(e), and (iii) such Partner does not, and for
so long as it is Partner will not, own, directly, indirectly or
Constructively, any interest in any REIT that would cause any items of
rental income of any of the General Partner and any of its future
Affiliates, or of the ▇▇▇▇▇▇▇ Limited Partners or any successor thereto
directly or indirectly owned by a REIT, who makes a determination to elect
to have REIT Status or issues securities to any REIT or REIT subsidiary,
to fail any requirement for being treated as "rents from real property"
within the meaning of Code Section 856(d).
(b) Each Partner that is not a natural person (including, without
limitation, each Additional Limited Partner or Substituted Limited Partner
as a condition to becoming an Additional Limited Partner or a Substituted
Limited Partner) represents and warrants to, and covenants with, each
other Partner that (i) all transactions contemplated by this Agreement to
be performed by it have been duly authorized by all necessary action,
including, without limitation, that of its general partner(s),
committee(s), trustee(s), beneficiaries, directors and/or shareholder(s)
(as the case may be) as required, (ii) the consummation of such
transactions shall not result in a breach or violation of, or a default
under, its partnership or operating agreement, trust agreement, charter or
bylaws (as the case may be) any material agreement by which such Partner
or any of such Partner's properties or any of its partners, members,
beneficiaries, trustees or shareholders (as the case may be) is or are
bound, or any statute, regulation, order or other law to which such
Partner or any of its partners, members, trustees, beneficiaries or
shareholders (as the case may be) is or are subject, (iii) such Partner is
neither a "foreign person" within the meaning of Code Section 1445(f)
19
nor a "foreign partner" within the meaning of Code Section 1446(e) and
(iv) such Partner does not, and for so long as it is Partner will not,
own, directly, indirectly or Constructively, any interest in any REIT that
would cause any items of rental income of any of the General Partner and
any of its future Affiliates, or of the ▇▇▇▇▇▇▇ Limited Partners or any
successor thereto directly or indirectly owned by a REIT, who makes a
determination to elect to have REIT Status or issues securities to any
REIT or REIT subsidiary, to fail any requirement for being treated as
"rents from real property" within the meaning of Code Section 856(d).
(c) Each Partner (including, without limitation, each Substituted
Limited Partner as a condition to becoming a Substituted Limited Partner)
represents, warrants and agrees that it has acquired and continues to hold
its interest in the Partnership for its own account for investment
purposes only and not for the purpose of, or with a view toward, the
resale or distribution of all or any part thereof, and not with a view
toward selling or otherwise distributing such interest or any part thereof
at any particular time or under any predetermined circumstances. Each
Partner further represents and warrants that it is a sophisticated
investor, able and accustomed to handling sophisticated financial matters
for itself, particularly real estate investments, and that it has a
sufficiently high net worth that it does not anticipate a need for the
funds that it has invested in the Partnership in what it understands to be
a highly illiquid investment.
(d) The representations and warranties contained in Sections 3.4(a),
3.4(b) and 3.4(c) hereof shall survive the execution and delivery of this
Agreement by each Partner (and, in the case of an Additional Limited
Partner or a Substituted Limited Partner, the admission of such Additional
Limited Partner or Substituted Limited Partner as a Limited Partner in the
Partnership) and the dissolution, liquidation and termination of the
Partnership.
(e) Each Partner (including, without limitation, each Substituted
Limited Partner as a condition to becoming a Substituted Limited Partner)
hereby acknowledges that no representations as to potential profit, cash
flows, funds from operations or yield, if any, in respect of the
Partnership or the General Partner have been made by any Partner or any
employee or representative or Affiliate of any Partner, and that
projections and any other information, including, without limitation,
financial and descriptive information and documentation, that may have
been in any manner submitted to such Partner shall not constitute any
representation or warranty of any kind or nature, express or implied.
Section 3.5 Compliance with REIT Provisions. So long as iStar has any
interest in the Partnership, whether as a pledgee of Partnership Units, as a
Partner, or by means of a participation or other direct or indirect beneficial
interest in Partnership profits or distributions, the Partnership shall conduct
its activities and own its assets in the following manner:
(a) all hotels and other lodging facilities owned directly or
indirectly by the Partnership shall be operated as Qualified Lodging
Facilities and leased to a Taxable REIT Subsidiary, or to a Person (a
"QUALIFYING TENANT") in which the Partnership does not own, directly,
indirectly or Constructively a 10% or greater interest in the vote, value,
capital or profits interest of its equity securities, with such terms that
all income thereunder qualifies as "rents from real property" within the
meaning of Code Section 856; each Taxable REIT Subsidiary shall be charged
management fees no higher than arms-length rates and may be allocated only
its proportional share of any overhead expenses; no services shall be
provided to any Taxable REIT Subsidiary by the Partnership, but the
Partnership and each Taxable REIT Subsidiary may properly apportion among
themselves shared expenses for accounting costs, tax return preparation,
salaries and other general overhead;
(b) all other Partnership properties shall be leased to a Qualifying
Tenant under a lease with such terms that all income thereunder qualifies
as "rents from real property" within the meaning of Code Section 856;
(c) the Partnership shall earn no revenues from its properties other
than rents from real property, gains from the sale or other disposition of
real estate assets, and other income described under Code Section
856(c)(3) (other than (c)(3)(I));
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(d) the Partnership shall have no direct or indirect interest in any
property properly includible in inventory or held for sale to customers in
the ordinary course of business, unless such property is held through a
Taxable REIT Subsidiary;
(e) the Partnership shall own no more than 10% by vote or value,
directly or indirectly, of the securities of any issuer unless such
securities qualify as "straight debt" within the meaning of Code Section
856(m) with respect to iStar, are exempted from the definition of
"securities" under Code Section 856(m), or are securities issued by a
Taxable REIT Subsidiary; in particular, the ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Hotels Finance
Corporation III and the Food and Beverage Holding Company and its
corporate subsidiaries shall be qualified as Taxable REIT Subsidiaries as
of the Effective Date;
(f) at least 75% of the Partnership's gross income each calendar
year shall qualify as income described in Code Section 856(c)(3) (other
than (c)(3)(I)); and
(g) at least 75% by value of the Properties at the end of each
calendar quarter shall qualify as "real estate assets" within the meaning
of Code Section 856(c)(4)(A). iStar is a third party beneficiary of this
Agreement.
ARTICLE 4
CAPITAL CONTRIBUTIONS
Section 4.1 Capital Contributions of the Partners. The Partners have
heretofore made Capital Contributions to the Partnership, as set forth in the
books and records of the Partnership. On the Effective Date, the Partnership is
being recapitalized so that each Partner will own Partnership Units in the
amounts, of the class and with the Capital Accounts set forth on Exhibit A, as
the same may be amended from time to time by the General Partner to the extent
necessary to accurately reflect sales, exchanges or other Transfers,
redemptions, Capital Contributions, the issuance of Additional Partnership
Units, or similar events having an effect on a Partner's ownership of
Partnership Units. Except as provided by law or in Section 4.2, 4.3, 4.5 or 10.4
hereof, the Partners shall have no obligation or, except with the prior written
consent of the General Partner, right to make any additional Capital
Contributions or loans to the Partnership. The Capital Accounts of the Partners
and the Gross Asset Values of the Partnership's Properties are being restated as
of the Effective Time. The restated Capital Accounts of the Partners are set
forth on the attached Exhibit A.
Section 4.2 Issuances of Additional Partnership Interests and Additional
Partnership Units.
(a) General. Subject to Section 4.2(c) and Section 7.3(a), the
General Partner is hereby authorized to cause the Partnership to issue
additional Partnership Interests ("ADDITIONAL PARTNERSHIP INTERESTS"), in
the form of additional Partnership Units (other than ▇▇▇▇▇▇▇ Preferred
Units) ("ADDITIONAL PARTNERSHIP UNITS"), for any Partnership purpose, at
any time or from time to time, to the Partners or to other Persons, and to
admit such Persons as Additional Limited Partners, for such consideration
and on such terms and conditions as shall be established by the General
Partner in its Sole and Absolute Discretion, all without the approval of
any Limited Partner or any other Person. Without limiting the foregoing,
subject to Section 4.2(c) and Section 7.3(a), the General Partner is
expressly authorized to cause the Partnership to issue Additional
Partnership Interests (i) upon the conversion, redemption or exchange of
any Debt, Partnership Units, or other securities issued by the Partnership
and (ii) in connection with any merger of any other Person into the
Partnership if the applicable merger agreement provides that Persons are
to receive Partnership Units in exchange for their interests in the Person
merging into the Partnership. Subject to Section 4.2(c), any additional
Partnership Interests may be issued in one or more classes, or one or more
series of any of such classes, with such designations, preferences and
relative, participating, optional or other special rights, powers and
duties (including, without limitation, rights, powers and duties that may
be senior or otherwise entitled to preference over existing Partnership
Units except the ▇▇▇▇▇▇▇ Preferred Units) as shall be determined by the
General Partner, in its Sole and Absolute Discretion without the approval
or consent of any Limited Partner or any other Person, and set forth in a
written document thereafter attached to and made an exhibit to this
Agreement, which exhibit shall be an amendment to this Agreement and shall
be incorporated herein by this reference (each, a "PARTNERSHIP UNIT
DESIGNATION"). With respect to any additional Partnership Interests (and
any related Partnership Units) issued pursuant to
21
this Section 4.2(a) and without limiting the generality of the foregoing,
subject to Section 4.2(c), the General Partner shall have authority to
specify (a) the allocations of items of Partnership income, gain, loss,
deduction and credit to each such class or series of Partnership
Interests; (b) the right of each such class or series of Partnership
Interests to share (on a pari passu, junior or preferred basis) in
Partnership distributions; (c) the rights of each such class or series of
Partnership Interests upon dissolution and liquidation of the Partnership;
(d) the voting rights, if any, of each such class or series of Partnership
Interests; and (e) the conversion, redemption or exchange rights
applicable to each such class or series of Additional Partnership
Interests. Upon the issuance of any Additional Partnership Interest, the
General Partner shall issue a Partnership Unit Certificate evidencing such
Additional Partnership Interest and shall amend Exhibit A and the books
and records of the Partnership as appropriate to reflect such issuance.
Additionally, upon the issuance of any Additional Partnership Interests,
the General Partner shall provide to the ▇▇▇▇▇▇▇ Limited Partners notice
of such issuance no later than 30 days after such issuance, including a
copy of an amended Exhibit A reflecting such issuance, the rights and
preferences of the issued Partnership Interest and the consideration given
therefor. If any Partnership Interest is granted to the General Partner or
any of its Affiliates, the amount credited to the Capital Account of the
Partner in respect of the contribution shall not be in excess of the fair
market value of the contributed property, the number of Units issued with
respect to such Partnership Interest shall be consistent with the amount
credited to the Capital Account for such contribution, and such amount
shall be deemed the amount of the Capital Contribution for purposes of the
Special Capital Contribution with respect to such contribution.
(b) No Preemptive Rights. Except as expressly set forth in Article
15, no Person, including, without limitation, any Partner or Assignee,
shall have any preemptive, preferential, participation or other similar
right or rights to subscribe for or acquire any Partnership Interest;
provide that, subject to Section 4.2(c), the General Partner shall have
the right to grant any such right in its Sole and Absolute Discretion.
(c) ▇▇▇▇▇▇▇ Preferred Units. Notwithstanding anything herein to the
contrary, for so long as the ▇▇▇▇▇▇▇ Limited Partners or any of their
transferees (other than the Required Holders) hold any ▇▇▇▇▇▇▇ Preferred
Units, without the Consent of the ▇▇▇▇▇▇▇ Limited Partners, the General
Partner shall not cause the Partnership to, and the Partnership shall not,
(i) authorize the issuance of (A) any notes or debt securities or other
rights, instruments, contracts and compensatory arrangements of any kind
or nature whatsoever containing equity features or (B) any Partnership
Interests or other equity securities (or any securities convertible into
or exchangeable for any Partnership Interests or other equity securities),
which, in the case of each of clause (A) and clause (B) foregoing, have
capital rights, distribution rights, redemption rights or rights upon
liquidation, winding up and dissolution, that are senior to, or pari passu
with, the ▇▇▇▇▇▇▇ Preferred Units, (ii) change its tax status to any
entity classification other than a partnership for federal, state or local
income tax purposes; or (iii) make any in-kind distribution of any
Property, right or interest of the Partnership.
Section 4.3 Additional Funds and Capital Contributions.
(a) General. The General Partner may, at any time and from time to
time, determine that the Partnership requires additional funds
("ADDITIONAL FUNDS") for the acquisition or development of additional
Properties, for the redemption of Partnership Units or for such other
purposes as the General Partner may determine, in its Sole and Absolute
Discretion. Subject to Section 4.2(c) and Section 7.3(a), additional Funds
may be obtained by the Partnership, at the election of the General
Partner, in any manner provided in, and in accordance with, the terms of
this Section 4.3 without the approval or consent of any Limited Partner or
any other Person.
(b) Additional Capital Contributions. Subject to Section 4.2(c) and
Section 7.3(a), the General Partner, on behalf of the Partnership, may
obtain any Additional Funds by accepting Capital Contributions from any
Partners or other Persons. In connection with any such Capital
Contribution (of cash or property), the General Partner is hereby
authorized to cause the Partnership from time to time to issue additional
Partnership Units (as set forth in Section 4.2 above) (and shall issue
additional Partnership Unit Certificates evidencing such issuance) in
consideration therefor.
22
(c) Loans by Third Parties. Subject to Section 7.3(a), the General
Partner, on behalf of the Partnership, may obtain any Additional Funds by
causing the Partnership to incur Debt to any Person upon such terms as the
General Partner determines appropriate, including, subject to Section
4.2(c), making such Debt convertible, redeemable or exchangeable for
Partnership Units.
(d) Affiliate Loans. Subject to Section 4.2 and Section 7.3(a)(iii),
the General Partner, on behalf of the Partnership, may obtain any
Additional Funds by causing the Partnership to incur Debt with any of its
Affiliates.
Section 4.4 No Interest; No Return. No Partner shall be entitled to
interest on its Capital Contribution or its Capital Account. Except as provided
herein or by law, no Partner shall have any right to demand or receive the
return of its Capital Contribution from the Partnership.
Section 4.5 Note Deficiency Capital Contribution. Notwithstanding any
other provision of this Agreement to the contrary, but subject to Section 14.2,
if at any time and from time to time a Note Deficiency (as hereinafter defined)
exists, JQH or ▇▇▇▇▇▇▇, Inc. shall be obligated to make a capital contribution
to the Partnership in an amount equal to $180,000,000 of such Note Deficiency,
and ▇▇▇▇▇▇▇, Inc. shall be obligated to make a capital contribution to the
Partnership in an amount of $15,000,000 of such Note Deficiency (the "NOTE
DEFICIENCY CAPITAL CONTRIBUTION"); provided, however, that in no event shall the
aggregate amount required to be contributed by JQH and ▇▇▇▇▇▇▇, Inc., from time
to time, pursuant to this Section 4.5 exceed $195,000,000.00, less any amounts
previously contributed pursuant to this Section 4.5. A "NOTE DEFICIENCY" shall
exist if, in connection with an Event of Default (as defined in the Indenture)
under the Indenture (the "INDENTURE") relating to the First Mortgage Notes due
2012 (the "Notes"), the proceeds from a sale or other disposition of the
collateral under the Indenture are insufficient to satisfy the amounts due on
the Notes. Any Note Deficiency Capital Contributions made pursuant to this
Section 4.5 shall be used to pay the Note Deficiency. In the event that a Note
Deficiency exists, the General Partner shall within ten days send a notice
("NOTE DEFICIENCY NOTICE") to JQH and ▇▇▇▇▇▇▇, Inc., setting forth (i) the
amount of the Note Deficiency, (ii) the amount of Note Deficiency Capital
Contribution required under this Section 4.5 and (iii) the date on which payment
of such Note Deficiency Capital Contribution is due, which date shall be no
earlier than 30 days after the Note Deficiency Notice is sent. If the General
Partner does not send the Note Deficiency Notice within the prescribed period,
the trustee under the Indenture (the "TRUSTEE") shall be entitled to send the
Note Deficiency Notice. This Section 4.5 is for the benefit of the holders of
the Notes under the Indenture and, in accordance with the Indenture, the Trustee
shall have the power to act on behalf of the holders of the Notes under the
Indenture and to enforce the obligations of JQH and ▇▇▇▇▇▇▇, Inc., under this
Section 4.5. The obligations under this Section 4.5 shall be personal to JQH and
▇▇▇▇▇▇▇, Inc., and shall not be affected by any Transfer by them of all or any
part of their Partnership Interests, and JQH and ▇▇▇▇▇▇▇, Inc., shall have (A)
no right to the return from the Partnership of any Note Deficiency Capital
Contributions made pursuant to this Section 4.5, (B) no right to indemnification
from the Partnership or any Partner with respect to any such Note Deficiency
Capital Contribution and (C) no right of subrogation with respect to any such
Note Deficiency Capital Contribution. This Section 4.5 may not be amended
without the express written approval of holders of at least a majority in
principal amount of the Notes. In no event shall iStar or any transferee of the
▇▇▇▇▇▇▇ Preferred Units (other than JQH or ▇▇▇▇▇▇▇, Inc.) be obligated to make
any Note Deficiency Contributions under this Section 4.5.
Section 4.6 Other Contribution Provisions. In the event that any Person is
admitted to the Partnership and is given a Capital Account in exchange for
services rendered to the Partnership, such transaction shall be treated by the
Partnership and the affected Person as if the Partnership had compensated such
Person in cash and such Person had contributed the cash to the capital of the
Partnership in return for Additional Partnership Units pursuant to Section 4.2.
In addition, subject to Section 4.2 and Section 7.3(a), with the written consent
of the General Partner, one or more Partners may enter into contribution
agreements with the Partnership which have the effect of providing a guarantee
of certain obligations of the Partnership; provided that such agreements do not
reduce the share of liabilities otherwise allocable to the ▇▇▇▇▇▇▇ Limited
Partners as set forth in Section 4.5, as provided in the Tax Indemnity
Agreement.
23
ARTICLE 5
DISTRIBUTIONS
Section 5.1 Distributions.
(a) Subject to the terms of this Section 5.1, the General Partner
shall have the right at any time and from time to time, in its Sole and
Absolute Discretion, to cause the Partnership to make Distributions as
follows:
(i) First, to Distribute all, or such portion as the General
Partner may in its Sole and Absolute Discretion determine of,
Operating Cash in respect of the then current fiscal quarter and all
prior fiscal quarters (to the extent not previously Distributed) as
follows: (A) to the Holders of Partnership Units on the Partnership
Record Date (in the proportion that the number of Partnership Units
held by each such Holder as of the Partnership Record Date bears to
the aggregate number of Partnership Units outstanding as of the
Partnership Record Date) until such time as the Liquidation Notice
is delivered, and (B) after the Liquidation Notice is delivered, to
the Holders of Partnership Common Units on the Partnership Record
Date (in the proportion that the number of Partnership Common Units
held by each such Holder as of the Partnership Record Date bears to
the aggregate number of Partnership Common Units outstanding as of
the Partnership Record Date);
(ii) Second, after Undistributed Operating Cash is an amount
equal to zero, to Distribute all, or such portion as the General
Partner may in its Sole and Absolute Discretion determine of,
Available Closing Cash to the Holders of Partnership Common Units on
the Partnership Record Date (in the proportion that the number of
Partnership Common Units held by each such Holder as of the
Partnership Record Date bears to the aggregate number of Partnership
Common Units outstanding as of the Partnership Record Date), so long
as (A) such Distribution does not reduce Net Worth below the Net
Worth Threshold and (B) during any Partnership Year, the aggregate
amount of all such Distributions does not exceed the Annual Cap; and
(iii) Third, after Undistributed Closing Cash is an amount
equal to zero, to Distribute all, or such portion as the General
Partner may in its Sole and Absolute Discretion determine of, Other
Cash to the Holders of Partnership Common Units on the Partnership
Record Date (in the proportion that the number of Partnership Common
Units held by each such Holder as of the Partnership Record Date
bears to the aggregate number of Partnership Common Units
outstanding as of the Partnership Record Date), so long as such
Distribution does not reduce Net Worth below the Net Worth
Threshold.
(b) Notwithstanding the foregoing, so long as the ▇▇▇▇▇▇▇ Limited
Partners or any of their transferees (other than the Required Holders)
hold any ▇▇▇▇▇▇▇ Preferred Units, without the Consent of the ▇▇▇▇▇▇▇
Limited Partners, no Distributions shall be made pursuant to Section
5.1(a), unless (i) as of a proposed Partnership Record Date, the
Partnership and its Subsidiaries have funds (either in the form of cash or
cash equivalents or pursuant to lines of credit) available for working
capital purposes in an amount not less than $2,000 for each guest room of
the hotels owned by the Partnership and its Subsidiaries, with not less
than $5 million of such funds being in the form of cash or cash
equivalents, and (ii) the Partnership is in compliance with its
obligations under Section 7.6 hereof in all material respects.
(c) Notwithstanding anything herein to the contrary, after such time
as the ▇▇▇▇▇▇▇ Limited Partners and their transferees (other than the
Required Holders) cease to hold any ▇▇▇▇▇▇▇ Preferred Units, the General
Partner shall have the right to cause Distributions to be made at any time
and in such amounts and manner as the General Partner may determine in its
Sole and Absolute Discretion.
Section 5.2 Certain Tax Distributions. Subject to limitations imposed by
any credit agreement to which the Partnership or any of its Subsidiaries is
subject, if, as a result of a sale or other disposition of a hotel property of
the Partnership or any of its Subsidiaries (other than an asset that is one of
the Protected Properties), a ▇▇▇▇▇▇▇ Limited Partner is allocated taxable income
or gain (net of any allocation of taxable loss or deduction),
24
the Partnership shall distribute to such ▇▇▇▇▇▇▇ Limited Partner such amount as
is necessary to satisfy any income tax obligations of such ▇▇▇▇▇▇▇ Limited
Partner for the relevant Partnership Year incurred due to such allocation of net
taxable income or gain, assuming that such net taxable income or gain is subject
to the maximum marginal rates applicable, and shall make any such distribution
hereunder as promptly as possible and provide interest free financing for any
delay period; provided, however, that such tax distributions will be made on
sales or other dispositions of any hotel property of the Partnership or any of
its Subsidiaries, including Protected Properties, following delivery of the
Liquidation Notice and prior to the death of JQH in an amount not to exceed the
net proceeds received from any such sale or other disposition, including after
payment of all Debt on such property, no later than by the end of the
Partnership Year during which such sale or other disposition occurs, and all
such tax distributions shall be treated as advances of, and shall be offset
against, any payments such ▇▇▇▇▇▇▇ Limited Partner is entitled to receive in
respect of the Preferred Redemption Price.
Section 5.3 Distributions to Reflect Additional Partnership Units. In the
event that the Partnership issues Additional Partnership Units pursuant to the
provisions of Article 4 hereof (subject to Section 4.2(c)), the General Partner
is hereby authorized to reallocate only the Distributions allocable to Partners
other than the ▇▇▇▇▇▇▇ Limited Partners as necessary or desirable to reflect the
issuance of such Additional Partnership Units. The General Partner shall not be
authorized under this Section 5.3 to reallocate any Distributions otherwise
allocable to the ▇▇▇▇▇▇▇ Limited Partners.
Section 5.4 Determination of Operating Cash, Available Closing Cash, Other
Cash and Net Worth. The General Partner shall deliver to the ▇▇▇▇▇▇▇
Representative a GP Certificate, setting forth in reasonable detail and
certifying the General Partner's determination of, as applicable, (a) Operating
Cash no less than fifteen (15) days prior to making any Distribution pursuant to
Section 5.1(a)(i) hereof, (b) Net Worth, Available Closing Cash and Other Cash
no less than thirty (30) days prior to making any Distribution pursuant to
Section 5.1(a)(ii) or Section 5.1(a)(iii) hereof or (c) Net Worth no less than
thirty (30) days prior to making any reimbursements pursuant to Section 7.4(b)
hereof (the "GP DETERMINATION"), in each case, as of a date as recently as
practicable to the date of delivery of the GP Certificate, together with all
relevant financial statements and other relevant information supporting such
determination and a certification that the Partnership is in compliance with its
obligations under Section 7.6 in all material respects; provided that,
notwithstanding anything herein to the contrary, the ▇▇▇▇▇▇▇ Limited Partners
and the ▇▇▇▇▇▇▇ Representative hereby agree and stipulate that during the
twelve-month period commencing on the Effective Date, Net Worth shall be deemed
to be an amount not less than (x) the aggregate amount of the Capital Accounts
balances of the Partners as of the Effective Time as set forth on Exhibit A,
less (y) the aggregate amount of Distributions made pursuant to Sections
5.1(a)(ii) and 5.1(a)(iii) during such period, less (z) the aggregate amount of
reimbursements made pursuant to Section 7.4(b) (such amount, the "STIPULATED
FIRST YEAR NET WORTH"). Within seven (7) days after receipt of such GP
Certificate relating to the determination of Operating Cash, and within fifteen
(15) days after receipt of such GP Certificate relating to the determination of
Available Closing Cash, Other Cash or Net Worth, the ▇▇▇▇▇▇▇ Representative
shall notify the General Partner in writing if the ▇▇▇▇▇▇▇ Limited Partners
agree with the GP Determination, and, if the ▇▇▇▇▇▇▇ Representative accepts the
GP Determination, then the same shall be the Operating Cash, Available Closing
Cash, Other Cash or Net Worth for purposes of such Distribution or
reimbursement, as the case may be. Notwithstanding anything herein to the
contrary, neither the ▇▇▇▇▇▇▇ Representative nor any of the ▇▇▇▇▇▇▇ Limited
Partners shall be entitled to dispute or otherwise challenge a GP Determination
with respect to Net Worth during the twelve-month period commencing on the
Effective Date, except, and solely, to the extent that such GP Determination
sets forth Net Worth to be an amount in excess of the Stipulated First Year Net
Worth. Subject to the sentence immediately foregoing, if the ▇▇▇▇▇▇▇
Representative in good faith does not agree with the GP Determination, then the
▇▇▇▇▇▇▇ Representative shall notify the General Partner of its disagreement in
writing, setting forth in reasonable detail the manner in which the ▇▇▇▇▇▇▇
Representative calculates Operating Cash, Available Closing Cash, Other Cash or
Net Worth, as applicable, and the expert resolution procedures set forth in
Section 5.5 shall apply (unless the ▇▇▇▇▇▇▇ Representative and the General
Partner agree to resolve the disagreement by other means). Any failure by the
▇▇▇▇▇▇▇ Representative to so notify the General Partner in writing of its
position with respect to the GP Determination within seven (7) or fifteen (15)
days, as applicable, after receipt of the applicable GP Certificate shall be
deemed an acceptance by the ▇▇▇▇▇▇▇ Limited Partners of the GP Determination. To
the extent necessary to calculate Operating Cash, Available Closing Cash, Other
Cash or Net Worth, as the case may be, the ▇▇▇▇▇▇▇ Representative shall have
timely access to and shall be provided by the Partnership with any and all
relevant financial statements and reports available with respect to the
Partnership. The General Partner and the ▇▇▇▇▇▇▇ Limited Partners hereby agree
that they shall use reasonable best efforts to have Operating Cash, Available
Closing
25
Cash, Other Cash or Net Worth, as the case may be, determined as soon as
reasonably possible after a GP Certificate is delivered. No Distribution of
Operating Cash, Available Closing Cash or Other Cash shall be made until such
time as the GP Determination is accepted by the ▇▇▇▇▇▇▇ Representative or the
Neutral Expert has completed its determination of Operating Cash, Available
Closing Cash, Other Cash or Net Worth, as applicable.
Section 5.5 Expert Resolution.
(a) If the ▇▇▇▇▇▇▇ Representative in good faith does not agree with
the GP Determination under Section 5.4, the General Partner's
determination of Net Worth under Section 7.3(a)(ii) or the GP LV
Determination under Section 9.4, as the case may be, the procedures set
forth in this Section 5.5 will apply (unless the ▇▇▇▇▇▇▇ Representative
and the General Partner agree to resolve the disagreement by other means).
(b) Subject to Section 5.5(c), the Neutral Expert alone shall
resolve the issue in question.
(c) The use of a Neutral Expert shall be the exclusive remedy of the
parties with respect to any disputes arising in connection with the
determination of Operating Cash, Available Closing Cash, Other Cash, Net
Worth or Liquidation Value independently, and no party shall attempt to
adjudicate such dispute in any other forum; provided that each of the
parties shall be entitled to pursue all other remedies to which it may be
entitled at law or in equity in the event that the other party fails to
act in good faith or in the case of any manifest error made by the Neutral
Expert. Subject to the proviso in the sentence immediately foregoing, the
decision of the Neutral Expert with respect to any particular
determination of Operating Cash, Available Closing Cash, Other Cash, Net
Worth or Liquidation Value independently shall be final and binding on the
parties in respect of such determination and shall not be capable of
challenge, whether by arbitration, in court or otherwise.
(d) Each party shall be entitled to make written submissions to the
Neutral Expert, and if a party makes any submission it shall also
simultaneously provide a copy to the other party and the other party shall
have the right to comment on such submission. The parties shall make
available to the Neutral Expert and to each other all books and records
relating to the issue in dispute and shall render to the Neutral Expert
any assistance reasonably requested of the parties. The costs of any
Neutral Expert and the proceedings hereunder and all other costs under
this Section 5.5 for such dispute resolution shall be borne (i) equally by
the General Partner, on the one hand, and the ▇▇▇▇▇▇▇ Limited Partners, on
the other, in the case of disputes relating to Net Worth or Liquidation
Value independently and (ii) entirely by the party whose determination is
further from the Neutral Expert's decision in the case of disputes
relating to Operating Cash, Available Closing Cash or Other Cash.
(e) The parties shall cause the terms of engagement of the Neutral
Expert to include an obligation on the part of the Neutral Expert to: (i)
notify the parties in writing of its decision as soon as practicable, and,
in any event, within fifteen (15) days (in the case of Operating Cash,
Available Closing Cash or Other Cash) or thirty (30) days (in the case of
Net Worth or Liquidation Value independently) from the date on which the
Neutral Expert has been selected (or such other period as the parties may
agree); and (ii) establish a timetable for the making of submissions and
replies consistent with clause (i) foregoing.
(f) The parties shall cause the Neutral Expert to be bound by the
provisions of this Agreement and to have no authority to add to, subtract
from or otherwise modify such provisions. The Neutral Expert may, however,
interpret the provisions of this Agreement, provided that such
interpretation is made in a manner consistent with this Agreement.
Section 5.6 Restricted Distributions. Notwithstanding any provision to the
contrary contained in this Agreement, neither the Partnership nor the General
Partner, on behalf of the Partnership, shall make a distribution to any Holder
if such distribution would violate Section 17-607 of the Act or other applicable
law.
ARTICLE 6
ALLOCATIONS
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Section 6.1 Timing and Amount of Allocations of Net Income and Net Loss.
Net Income and Net Loss of the Partnership shall be determined and allocated
with respect to each Partnership Year of the Partnership as of the end of each
such year. Except as otherwise provided in this Article 6, and subject to
Section 11.6(c) hereof, an allocation to a Holder of a share of Net Income or
Net Loss shall be treated as an allocation of the same share of each item of
income, gain, loss or deduction that is taken into account in computing Net
Income or Net Loss.
Section 6.2 General Allocations.
(a) In General. Subject to Section 6.3 and Section 11.6(c) hereof,
Net Income and Net Loss attributable to any period (or portion thereof)
ending on or before the date the Partnership has received a Liquidation
Notice shall be allocated to each of the Holders as follows:
(i) The Common Allocations Percentage of Net Income will be
allocated to the Holders of Partnership Common Units (in proportion
to the number of Partnership Common Units held by each such Holder),
and the Preferred Allocations Percentage of Net Income will be
allocated to the Holders of ▇▇▇▇▇▇▇ Preferred Units (in proportion
to the number of Hammons Preferred Units held by each such Holder);
and
(ii) Subject to the limitations under Section 6.3(b)(vi), the
Common Allocations Percentage of Net Loss will be allocated to the
Holders of Partnership Common Units (in proportion to the number of
Partnership Common Units held by each such Holder), and the
Preferred Allocations Percentage of Net Loss will be allocated to
the Holders of ▇▇▇▇▇▇▇ Preferred Units (in proportion to the number
of ▇▇▇▇▇▇▇ Preferred Units held by each such Holder).
(b) After Liquidation Notice.
(i) In connection with a Liquidating Event or for any period
(or portion thereof) beginning after the Partnership has received a
Liquidation Notice, all items of Partnership gain attributable to
the sale or other disposition of capital assets (as defined in Code
Section 1221) and, without duplication, all Code Section 1231 gains
as defined in Code Section 1231 shall be allocated to the Holders of
▇▇▇▇▇▇▇ Preferred Units (in proportion to the number of ▇▇▇▇▇▇▇
Preferred Units held by each Holder) until the Target Capital
Account Balance is attained. For this purpose the "TARGET CAPITAL
ACCOUNT BALANCE" is the sum of: (A) the aggregate Capital Accounts
of the ▇▇▇▇▇▇▇ Preferred Units (other than the ▇▇▇▇▇▇▇ Preferred
Units purchased by the Partnership or The General Partner pursuant
to Section 15.3) as listed on Exhibit A as of the Effective Time,
and (B) the Target Participation Amount.
(ii) In connection with a Liquidating Event or for any period
(or portion thereof) beginning after the Partnership has received a
Liquidation Notice, all Net Income and Net Losses (determined after
excluding all items of Partnership gain allocated pursuant to
Section 6.2(b)(i)) shall be allocated to the Holders of Partnership
Common Units (in proportion to the number of Partnership Common
Units held by each such Holder).
Section 6.3 Additional Allocation Provisions. Notwithstanding the
foregoing provisions of this Article 6:
(a) Special Allocations. For each Partnership Year, the General
Partner shall be specially allocated items of Partnership income and gain
for such year (and, if necessary, subsequent years) in an amount equal to
the LIBOR Differential for such year.
(b) Regulatory Allocations.
(i) Minimum Gain Chargeback. Except as otherwise provided in
Regulations Section 1.704-2(f), notwithstanding the provisions of
Section 6.2 hereof, or any other provision of
27
this Article 6, if there is a net decrease in Partnership Minimum
Gain during any Partnership Year, each Holder shall be specially
allocated items of Partnership income and gain for such year (and,
if necessary, subsequent years) in an amount equal to such Holder's
share of the net decrease in Partnership Minimum Gain, as determined
under Regulations Section 1.704-2(g). The items to be allocated
shall be determined in accordance with Regulations Sections
1.704-2(f)(6) and 1.704-2(j)(2). This Section 6.3(b)(i) is intended
to qualify as a "minimum gain chargeback" within the meaning of
Regulations Section 1.704-2(f) and shall be interpreted consistently
therewith.
(ii) Partner Minimum Gain Chargeback. Except as otherwise
provided in Regulations Section 1.704-2(i)(4) or in Section
6.3(b)(i) hereof, if there is a net decrease in Partner Minimum Gain
attributable to a Partner Nonrecourse Debt during any Partnership
Year, each Holder who has a share of the Partner Minimum Gain
attributable to such Partner Nonrecourse Debt, determined in
accordance with Regulations Section 1.704-2(i)(5), shall be
specially allocated items of Partnership income and gain for such
year (and, if necessary, subsequent years) in an amount equal to
such Holder's respective share of the net decrease in Partner
Minimum Gain attributable to such Partner Nonrecourse Debt,
determined in accordance with Regulations Section 1.704-2(i)(4). The
items to be so allocated shall be determined in accordance with
Regulations Sections 1.704-2(i)(4) and 1.704-2(j)(2). This Section
6.3(b)(ii) is intended to qualify as a "chargeback of partner
nonrecourse debt minimum gain" within the meaning of Regulations
Section 1.704-2(i) and shall be interpreted consistently therewith.
(iii) Nonrecourse Deductions and Partner Nonrecourse
Deductions. Any Nonrecourse Deductions for any Partnership Year
shall be specially allocated to the Holders in accordance with their
respective Percentage Interests. Any Partner Nonrecourse Deductions
for any Partnership Year shall be specially allocated to the
Holder(s) who bears the economic risk of loss with respect to the
Partner Nonrecourse Debt to which such Partner Nonrecourse
Deductions are attributable, in accordance with Regulations Section
1.704-2(i).
(iv) Qualified Income Offset. If any Holder unexpectedly
receives an adjustment, allocation or distribution described in
Regulations Section 1.704-1(b)(2)(ii)(d)(4), (5) or (6), items of
Partnership income and gain shall be allocated, in accordance with
Regulations Section 1.704-1(b)(2)(ii)(d), to such Holder in an
amount and manner sufficient to eliminate, to the extent required by
such Regulations, the Adjusted Capital Account Deficit of such
Holder as quickly as possible, provided that an allocation pursuant
to this Section 6.3(b)(iv) shall be made if and only to the extent
that such Holder would have an Adjusted Capital Account Deficit
after all other allocations provided in this Article 6 have been
tentatively made as if this Section 6.3(b)(iv) were not in the
Agreement. It is intended that this Section 6.3(b)(iv) qualify and
be construed as a "qualified income offset" within the meaning of
Regulations Section 1.704-1(b)(2)(ii)(d) and shall be interpreted
consistently therewith.
(v) Gross Income Allocation. In the event that any Holder has
a deficit Capital Account at the end of any Partnership Year that is
in excess of the sum of (1) the amount (if any) that such Holder is
obligated to restore to the Partnership upon complete liquidation of
such Holder's Partnership Interest (including, the Holder's interest
in outstanding ▇▇▇▇▇▇▇ Preferred Units and other Partnership Units)
and (2) the amount that such Holder is deemed to be obligated to
restore pursuant to the penultimate sentences of Regulations
Sections 1.704-2(g)(1) and 1.704-2(i)(5), each such Holder shall be
specially allocated items of Partnership income and gain in the
amount of such excess to eliminate such deficit as quickly as
possible, provided that an allocation pursuant to this Section
6.3(b)(v) shall be made if and only to the extent that such Holder
would have a deficit Capital Account in excess of such sum after all
other allocations provided in this Article 6 have been tentatively
made as if this Section 6.3(b)(v) and Section 6.3(b)(iv) hereof were
not in the Agreement.
(vi) Limitation on Allocation of Net Loss. To the extent that
any allocation of Net Loss would cause or increase an Adjusted
Capital Account Deficit as to any Holder, such allocation of Net
Loss shall be reallocated among the other Holders in accordance with
their
28
respective percentage shares of Net Loss absent such re-allocation,
subject to the limitations of this Section 6.3(b)(vi).
(vii) Section 754 Adjustment. To the extent that an adjustment
to the adjusted tax basis of any Partnership asset pursuant to Code
Section 734(b) or Code Section 743(b) is required, pursuant to
Regulations Section 1.704-1(b)(2)(iv)(m)(2) or Regulations Section
1.704-1(b)(2)(iv)(m)(4), to be taken into account in determining
Capital Accounts as the result of a distribution to a Holder of
Partnership Common Units in complete liquidation of its interest in
the Partnership, the amount of such adjustment to the Capital
Accounts shall be treated as an item of gain (if the adjustment
increases the basis of the asset) or loss (if the adjustment
decreases such basis), and such gain or loss shall be specially
allocated to the Holders in accordance with their respective
Percentage Interests in the event that Regulations Section
1.704-1(b)(2)(iv)(m)(2) applies, or to the Holder(s) to whom such
distribution was made in the event that Regulations Section
1.704-1(b)(2)(iv)(m)(4) applies.
(viii) Certain Payments. In the event that any fees, interest,
or other amounts are paid to a Holder or an Affiliate of a Holder
pursuant to the Agreement, or any agreement between the Partnership
and the Holder or an Affiliate providing for the payment of such
amounts, and deducted by the Partnership, whether in reliance on
Code Sections 162, 163, 707(a), and/or 707(c) or otherwise, on its
Federal income tax return for the taxable year or other applicable
period in or with respect to which such amounts are claimed, and any
of such amounts are disallowed as deductions to the Partnership and
are treated as Partnership distributions, then:
(1) the Net Income or Net Loss, as the case may be, for
the taxable year or other applicable period in or with respect
to which such deduction was claimed shall be increased or
decreased, as the case may be, by the amount of such deduction
that is so disallowed and treated as a taxable year
Partnership distribution; and
(2) there shall be allocated to the Holder who received
(or whose Affiliate received) such payments, prior to the
allocations pursuant to Section 5.2 an amount of gross income
of the Partnership for the Fiscal Year or other applicable
period in or with respect to which such claimed deduction was
disallowed equal to the amount of such deduction that is so
disallowed and treated as a Partnership distribution.
(ix) Curative Allocations. The allocations set forth in
Sections 6.3(b)(i), (ii), (iii), (iv), (v), (vi) and (vii) hereof
(the "REGULATORY ALLOCATIONS") are intended to comply with certain
regulatory requirements, including the requirements of Regulations
Sections 1.704-1(b) and 1.704-2. Notwithstanding the provisions of
Section 6.1 hereof, the Regulatory Allocations shall be taken into
account in allocating other items of income, gain, loss and
deduction among the Holders of Partnership Common Units so that to
the extent possible without violating the requirements giving rise
to the Regulatory Allocations, the net amount of such allocations of
other items and the Regulatory Allocations to each Holder of a
Partnership Common Unit shall be equal to the net amount that would
have been allocated to each such Holder if the Regulatory
Allocations had not occurred.
(c) Allocation of Excess Nonrecourse Liabilities. For purposes of
determining a Holder's proportional share of the "excess nonrecourse
liabilities" of the Partnership within the meaning of Regulations Section
1.752-3(a)(3), each Holder's proportionate share shall be the same as that
applied under Regulations Section 1.752-3(a)(2).
Section 6.4 Tax Allocations.
(a) In General. Except as otherwise provided in this Section 6.4,
for income tax purposes under the Code and the Regulations each
Partnership item of income, gain, loss and deduction (collectively, "TAX
ITEMS") shall be allocated among the Holders in the same manner as its
correlative item of "book" income, gain, loss or deduction is allocated
pursuant to Sections 6.2 and 6.3 hereof.
29
(b) Section 704(c) Allocations. Notwithstanding Section 6.4(a)
hereof, Tax Items with respect to Property that has a Gross Asset Value
that varies from its basis for income tax purposes (including all of the
Properties listed on Exhibit E) shall be allocated among the Holders for
income tax purposes so as to take into account such variation pursuant to
the traditional method prescribed in Regulations Section 1.704-3(b) for
purposes of Code Section 704(c) and Regulations Section 1.704-1(b)(4)(i).
The "traditional method" described in Regulations Section 1.704-3(b) shall
apply exclusively to all Properties of the Partnership, whether currently
owned or hereafter acquired, whenever an allocation of Reverse Code
Section 704(c) Gain, or Section 704(c) gain is made pursuant to Code
Section 704(c) and the Regulations thereunder. The use of Code Section
704(c) traditional method and Reverse Code Section 704(c) traditional
methods are contractual agreements and shall not be modified, changed
altered or revoked even with respect to new or additional assets,
subsequent gains and Book-up or if a new partnership is deemed formed
after a technical or other termination of the Partnership under Code
Section 708 (or pursuant to Section 13.3 or any other provision of this
Agreement), the Regulations thereunder, any interpretations thereof or any
successor provisions thereto. Any other provision of this Agreement to the
contrary notwithstanding, the Partners agree that Exhibit F hereof sets
forth the original Section 704(c) valuations and Code Section 704(c) gain
of the Properties contributed to ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Hotels L.P., in 1994, the
Code Section 704(c) Gross Asset Values, attributable to Properties as of
the Effective Time, and the respective percentages to be applied to
resulting Code Section 704(c) allocations and Reverse Section 704(c) Gain.
Section 6.5 Recapture Income. Any gain allocated to the Partners upon the
sale or other taxable disposition of any Partnership Property shall to the
extent possible, after taking into account other required allocations of gain
pursuant to Section 6.3(b), be characterized as Recapture Income in the same
proportions and to the same extent as such Partners have been allocated any
deductions directly or indirectly giving rise to the treatment of such gains as
Recapture Income (including deductions taken by any Partner with respect to
Contributed Property prior to the time such Property was contributed to the
Partnership).
ARTICLE 7
MANAGEMENT AND OPERATIONS OF BUSINESS
Section 7.1 Management.
(a) Except as otherwise expressly provided in this Agreement
(including Section 4.2(c) and Section 7.3), all management powers over the
business and affairs of the Partnership are and shall be exclusively
vested in the General Partner, and no Limited Partner shall have any right
to participate in or exercise control or management power over the
business and affairs of the Partnership. In addition to the powers now or
hereafter granted a general partner of a limited partnership under
applicable law or that are granted to the General Partner under any other
provision of this Agreement, the General Partner, subject to the other
provisions hereof (including Section 7.3), shall have full power and
authority to do all things deemed necessary or desirable by it, in its
Sole and Absolute Discretion, to conduct the business of the Partnership,
to exercise all powers set forth in Section 3.2 hereof and to effectuate
the purposes set forth in Section 3.1 hereof.
(b) Each of the Limited Partners agrees that, except as provided
herein (including Section 4.2(c) and Section 7.3), the General Partner is
authorized to take the actions set forth in Section 7.1(a) and execute,
deliver and perform the agreements and transactions consistent therewith
on behalf of the Partnership without the Approval of any of the Partners
or consent of any Partner or any other Persons, notwithstanding any other
provision of the Act or any applicable law, rule or regulation. The
execution, delivery or performance by the General Partner or the
Partnership of any of the Affiliate Transaction Agreements shall not
constitute a breach by the General Partner of any duty that the General
Partner may owe to the Partnership or the Limited Partners or any other
Persons under this Agreement or of any duty stated or implied by law or
equity.
(c) At all times from and after the date hereof, the General Partner
may cause the Partnership to obtain and maintain, at the expense of the
Partnership, (i) casualty, liability and other insurance on the Properties
of the Partnership and (ii) liability insurance for the Indemnitees
hereunder.
30
(d) Subject to Section 7.6, at all times from and after the date
hereof, the General Partner may cause the Partnership to establish and
maintain working capital and other reserves in such amounts as the General
Partner, in its Sole and Absolute Discretion, deems appropriate and
reasonable from time to time.
(e) In exercising its authority under this Agreement, the General
Partner may, but shall be under no obligation to, take into account the
tax consequences to any Partner of any action taken by it. Subject to the
Tax Indemnity Agreement, the General Partner and the Partnership shall not
have any liability to a Limited Partner under any circumstances as a
result of an income tax liability incurred by such Limited Partner as a
result of an action (or inaction) by the General Partner pursuant to its
authority under this Agreement.
(f) Subject to Section 7.5, and in addition to any other duties that
may be owed under applicable law, the General Partner shall owe the same
fiduciary duties to the Partnership and its Partners that a director would
owe to a corporation and its stockholders as a member of the board of
directors thereof under the laws of the State of Delaware.
Section 7.2 Certificate of Limited Partnership. The Partnership has
previously filed the Certificate in the office of the Secretary of State of the
State of Delaware as required by the Act. To the extent that such action is
determined by the General Partner to be reasonable and necessary or appropriate,
the General Partner shall file amendments to and restatements of the Certificate
and do all the things to maintain the Partnership as a limited partnership (or a
partnership in which the limited partners have limited liability) under the laws
of the State of Delaware and each other state, the District of Columbia or any
other jurisdiction, in which the Partnership may elect to do business or own
property. The General Partner shall not be required, before or after filing, to
deliver or mail a copy of the Certificate or any amendment thereto to any
Limited Partner; provided that the General Partner shall, within ten (10) days
after filing, deliver or mail a copy of the Certificate or any amendment thereto
to the ▇▇▇▇▇▇▇ Representative. The General Partner shall use all reasonable
efforts to cause to be filed such other certificates or documents as may be
reasonable and necessary or appropriate for the formation, continuation,
qualification and operation of a limited partnership (or a partnership in which
the limited partners have limited liability to the extent provided by applicable
law) in the State of Delaware and any other state, or the District of Columbia
or other jurisdiction, in which the Partnership may elect to do business or own
property.
Section 7.3 Restrictions on General Partner's Authority.
(a) Notwithstanding anything herein to the contrary (but subject to
Section 7.3(b)), for so long as the ▇▇▇▇▇▇▇ Limited Partners or any of
their transferees (other than the Required Holders) hold any ▇▇▇▇▇▇▇
Preferred Units, the Partnership shall not take, and the General Partner
shall not permit the Partnership to take, any of the following actions
without prior written notice of such action and without the consent
specified for such action, and no power-of-attorney or other authority
shall be sufficient authorization without the required consent:
(i) The sale, lease or other disposition by the Partnership or
its Subsidiaries of any of the Designated Hotels requires the
Consent of the ▇▇▇▇▇▇▇ Limited Partners; provided that no such
consent shall be required with respect to the lease of (A) any of
the Designated Hotels to any wholly-owned Subsidiary of the
Partnership or (B) any part of the Designated Hotels to restaurants
or other retail components of the Designated Hotels.
(ii) Without the Consent of the ▇▇▇▇▇▇▇ Limited Partners, the
Partnership shall not sell or otherwise dispose of, or cause to be
sold or disposed of, a Protected Property unless the Partnership's
Net Worth at the time of such sale is equal to or greater than $425
million (net of any resulting indemnity payment under the Tax
Indemnity Agreement and taking into account the effect on Net Worth
of any additional Capital Contribution that may be made prior to or
contemporaneously with any such tax indemnity payment), as certified
in a GP Certificate delivered to the ▇▇▇▇▇▇▇ Representative at least
thirty (30) days prior to any such sale or disposition, provided
that, (A) notwithstanding anything in this Section 7.3(a)(ii) to the
contrary, the ▇▇▇▇▇▇▇ Limited Partners and the ▇▇▇▇▇▇▇
Representative hereby agree and stipulate that
31
during the twelve-month period commencing on the Effective Date, Net
Worth (independent of (1) any resulting indemnity payment under the
Tax Indemnity Agreement and (2) the effect on Net Worth of any
additional Capital Contribution that may be made prior to or
contemporaneously with any such tax indemnity payment) shall be
deemed to be an amount not less than the Stipulated First Year Net
Worth; and (B) the Partnership shall have the right to sell or
otherwise dispose of any of the Protected Properties (other than the
Designated Properties) in any Code Section 1031 transaction (but
only to the extent no gain is recognized on such transaction),
without any regard to Net Worth and without the Consent of the
▇▇▇▇▇▇▇ Limited Partners or consent or approval of any other Partner
or Person. Any such Code Section 1031 transaction shall involve the
simultaneous exchange of property or provide an escrow of a tax
indemnity payment under the Tax Indemnity Agreement pending closing
of the Code Section 1031 exchange, and such tax indemnity payment
may not reduce Net Worth below $425 million (taking into account the
effect on Net Worth of any additional Capital Contribution that may
be made prior to or contemporaneously with any such tax indemnity
payment). The GP Certificate shall (I) set forth, in reasonable
detail, the manner in which the Partnership calculates the
Partnership's Net Worth, it being understood and agreed that a
reference to the stipulations made hereunder by the ▇▇▇▇▇▇▇ Limited
Partners and the ▇▇▇▇▇▇▇ Representative in that regard shall be
deemed sufficient for such purpose, (II) be accompanied by all
relevant financial statements and other relevant information
supporting the Partnership's Net Worth determination, and (III)
contain a representation that the Partnership will have a Net Worth
of not less than $425 million immediately after the sale date
(taking into account the effect on Net Worth of any additional
Capital Contribution that may be made prior to or contemporaneously
with any such sale and any required tax indemnity payment). Within
fifteen (15) days after receipt of such GP Certificate, the ▇▇▇▇▇▇▇
Representative will notify the General Partner in writing if the
▇▇▇▇▇▇▇ Limited Partners agree with the Partnership's determination
of Net Worth. Subject to the sentence immediately following, if the
▇▇▇▇▇▇▇ Representative in good faith does not agree with the
Partnership's Net Worth determination, then the ▇▇▇▇▇▇▇
Representative shall notify the General Partner of its disagreement
in writing, setting forth in reasonable detail the manner in which
the ▇▇▇▇▇▇▇ Representative calculates Net Worth, and the expert
resolution procedures set forth in Section 5.5 shall apply with
respect to the determination of ----------- Net Worth (unless the
▇▇▇▇▇▇▇ Representative and the General Partner agree to resolve the
disagreement by other means). Notwithstanding anything herein to the
contrary, neither the ▇▇▇▇▇▇▇ Representative nor any of the ▇▇▇▇▇▇▇
Limited Partners shall be entitled to dispute or otherwise challenge
a GP Certificate with respect to Net Worth during the twelve-month
period commencing on the Effective Date, except, and solely, to the
extent that such GP Certificate sets forth Net Worth to be an amount
in excess of the Stipulated First Year Net Worth (independent of (1)
any resulting indemnity payment from the related sale under the Tax
Indemnity Agreement and (2) the effect on Net Worth of any
additional Capital Contribution that may be made prior to or
contemporaneously with any such tax indemnity payment). Any failure
by the ▇▇▇▇▇▇▇ Representative to so notify the General Partner in
writing of its position with respect to the General Partner's
determination of Net Worth within fifteen (15) days after receipt of
the GP Certificate shall be deemed an acceptance by the ▇▇▇▇▇▇▇
Limited Partners of the General Partner's determination. The General
Partner and the ▇▇▇▇▇▇▇ Limited Partners hereby agree that they
shall use reasonable best efforts to have Net Worth determined as
soon as reasonably possible after a GP Certificate is delivered
hereunder. Notwithstanding anything in this Agreement to the
contrary, in the event that the ▇▇▇▇▇▇▇ Representative timely
notifies the General Partner of its disagreement with the General
Partner's determination of Net Worth, the ▇▇▇▇▇▇▇ Limited Partners
may enjoin any such sale of a Protected Property until the expert
resolution procedures set forth in Section 5.5 are finalized.
(iii) Transactions between any of the Partnership and its
Subsidiaries, on the one hand, and any of the General Partner and
its Affiliates (other than the Partnership or any of its
Subsidiaries), on the other hand, require the Consent of the ▇▇▇▇▇▇▇
Limited Partners. Notwithstanding the foregoing, the following
transactions shall not require the Consent of the ▇▇▇▇▇▇▇ Limited
Partners: (A) the transactions contemplated by the Affiliate
Transaction Agreements; (B) transactions, other than the lease or
contribution of Properties to Subsidiaries that
32
are not wholly-owned, on terms no less favorable to the Partnership
or its Subsidiaries than would be available in an arms' length
transaction; and (C) after the second anniversary of the Effective
Date, loans made by the Partnership or any of its Subsidiaries to
the General Partner or its Affiliates in connection with funding the
JQH Line of Credit.
(iv) Without the Consent of the ▇▇▇▇▇▇▇ Limited Partners, the
General Partner may not redeem any General Partner Interest or
Limited Partner Interest.
(v) Notwithstanding the provisions of Article 13, the Consent
of the ▇▇▇▇▇▇▇ Limited Partners is required to terminate the
Partnership.
(vi) The issuance of Publicly Traded equity securities by the
General Partner or the Partnership prior to (A) an LOC Default, (B)
the delivery of the Partnership Redemption Notice or (C) the
delivery the Liquidation Notice requires the Consent of the ▇▇▇▇▇▇▇
Limited Partners.
(vii) The guarantee of any Debt by the Partnership or its
Subsidiaries, or pledge of assets as collateral for the Debt of, any
Person requires the Consent of the ▇▇▇▇▇▇▇ Limited Partners;
provided, however, that the Partnership and its Subsidiaries shall
have the right to guarantee, or pledge their assets as collateral in
respect of, Debt permitted under Section 7.3(a)(viii) below without
the Consent of the ▇▇▇▇▇▇▇ Limited Partners.
(viii) The incurrence by the Partnership or any of its
Subsidiaries of Debt in excess of $50 million in the aggregate from
and after the Effective Date, if the Consolidated Leverage Ratio of
the Partnership and its Subsidiaries, at the time of such
incurrence, would exceed 7.5, requires the Consent of the ▇▇▇▇▇▇▇
Limited Partners. Notwithstanding the foregoing, the incurrence of
any of the following Debt does not require the Consent of the
▇▇▇▇▇▇▇ Limited Partners: (A) Qualified Refinancing Debt and (B)
Debt incurred in connection with the purchase by the Partnership,
the General Partner or any of its Affiliates, of the ▇▇▇▇▇▇▇
Preferred Units, so long as, in the case of this clause (B), any
such Debt incurred in connection with the exercise by JQH Trust of
the Early ---------- Liquidity Right is on terms no less favorable
to the Partnership or the General Partner, as the case may be, than
would be available in an arms' length transaction.
(ix) Until the second anniversary of the Effective Date,
equity investments by the Partnership or any Subsidiary of the
Partnership in Persons engaged to any material extent in any
business other than the ownership, development or operation of
hotels require the Consent of the ▇▇▇▇▇▇▇ Limited Partners; after
the second anniversary of the Effective Date, equity investments by
the Partnership or any Subsidiary of the Partnership in Persons
engaged to any material extent in any business other than the
ownership, development or operation of hotels or other hospitality
or recreation related properties (including long-term executive
apartments) require the Consent of the ▇▇▇▇▇▇▇ Limited Partners.
Equity investments in any Person if the aggregate Debt of such
acquired Person is greater than 7.5 times the Consolidated EBITDA of
the acquired Person(s) (such EBITDA to be adjusted on a pro forma
basis to take into account the effect of such equity investments in
such Person(s)) for the most recent twelve-month period for which
financial statements are then available require the Consent of the
▇▇▇▇▇▇▇ Limited Partners. Notwithstanding the foregoing, in a Code
Section 1031 exchange, the Partnership and its Subsidiaries shall
have the right to accept any property (including non-hospitality
properties) subject to a long-term triple net lease with a single,
corporate tenant without the Consent of the ▇▇▇▇▇▇▇ Limited
Partners, provided that the properties exchanged in such
transactions shall be limited to the properties listed on Exhibit G
attached hereto and any two (2) additional hotel
properties of the Partnership and its Subsidiaries that are not
Designated Hotels.
(x) The Partnership shall not elect REIT Status without the
Consent of the ▇▇▇▇▇▇▇ Limited Partners.
(xi) A reduction, or change in the nature of, the debt of the
Partnership and its Subsidiaries which would preclude the ▇▇▇▇▇▇▇
Limited Partners from continuing the absolute
33
dollar amount of their shares of liabilities within the meaning of
Code Section 752 as of the Effective Date requires the Consent of
the ▇▇▇▇▇▇▇ Limited Partners.
(xii) Without the Consent of the ▇▇▇▇▇▇▇ Limited Partners, the
Partnership shall not incur debt which refinances existing debt as
of the Effective Date on the retirement of debt in an amount such
that the ▇▇▇▇▇▇▇ Limited Partners are not given an opportunity to
maintain, or are precluded from maintaining, their shares of
liabilities (for purposes of Code Section 752) which include $195
million of the Notes and approximately $250 million of other debt as
more specifically identified on Exhibit H attached hereto.
(xiii) Without the Consent of the ▇▇▇▇▇▇▇ Limited Partners,
other than with respect to any payments made to ▇▇▇ ▇▇▇▇▇▇▇▇▇ or
pursuant to the Management Agreement, the Partnership will not spend
in excess of $1,000,000 per year, whether by reimbursement or
otherwise, in respect of its overhead expenses, including but not
limited to compensation for its staff and executive employees,
office and equipment leases, communication costs and the types of
services provided under third-party hotel management agreements, but
excluding payments of professional fees and expenses to unaffiliated
third parties (including accounting, law and investment banking
firms) and payments arising in connection with any financing
arrangements.
(b) The ▇▇▇▇▇▇▇ Limited Partners acknowledge and agree that (i)
unless extended by the General Partner, the notice and approval rights set
forth in Sections 7.3(a)(i), (ii), (v) and (vi) above shall expire and
cease to have any further force or effect upon the death of JQH and (ii)
unless consented to by the General Partner and in any event subject to the
last sentence of this Section 7.3(b), none of the notice and approval
rights set forth in Section 7.3(a) may be Transferred or shall be
available to any subsequent Holders of ▇▇▇▇▇▇▇ Preferred Units other than
to a Holder who acquires ▇▇▇▇▇▇▇ Preferred Units as a result of a
Permitted Transfer. Notwithstanding anything herein to the contrary, all
of the consent rights of the ▇▇▇▇▇▇▇ Limited Partners under this
Agreement, including the notice and approval rights set forth in Section
7.3(a), may be transferred (directly or indirectly) to iStar or any of its
assignees, transferees or designees together with any Lender Transfer and
the parties hereto specifically acknowledge that in connection with the
JQH Line of Credit, iStar is being afforded consent rights with respect to
notice and approval rights provided for in this Agreement.
(c) Subject to Section 7.3(d) and Section 7.3(e), the General
Partner shall have the power, without the Approval of any of the Partners
or the consent of any Partner or any other Person to amend this Agreement
as may be required to facilitate or implement any of the following
purposes:
(i) to add to the obligations of the General Partner or
surrender any right or power granted to the General Partner or any
Affiliate of the General Partner for the benefit of the Limited
Partners;
(ii) to reflect the admission, substitution or withdrawal of
Partners or the termination of the Partnership in accordance with
this Agreement, and, upon prior written notice of any of the
foregoing to the ▇▇▇▇▇▇▇ Representative, to amend Exhibit A in
connection with such admission, substitution or withdrawal;
(iii) to reflect a change that is of an inconsequential nature
or 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
the other provisions in this Agreement, 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;
(iv) 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;
34
(v) to modify either or both of the manner in which items of
Net Income or Net Loss are allocated pursuant to Article VI or the
manner in which Capital Accounts are adjusted, computed, or
maintained (but in each case only to the extent set forth in the
definition of "Capital Account" or required by the Code or the
Regulations);
(vi) the issuance of, and to reflect the terms of, Additional
Partnership Interests in accordance with Section 4.2; and
(vii) to reflect any other modification to this Agreement as
is reasonably necessary for the business or operations of the
Partnership and which does not violate Section 7.3(d).
The General Partner will provide no less than 7 days' prior notice to the
▇▇▇▇▇▇▇ Limited Partners when any action under this Section 7.3(c) is taken.
(d) Notwithstanding Section 7.3(c) hereof, this Agreement shall not
be amended, and no action may be taken by the General Partner, without the
written consent of each Partner adversely affected thereby, if such
amendment or action would (i) convert a Limited Partner Interest in the
Partnership into a General Partner Interest (except as a result of the
General Partner acquiring such Partnership Interest), (ii) modify the
limited liability of a Limited Partner, (iii) alter the rights of any
Partner to receive the Distributions to which such Partner is entitled,
pursuant to Article 5 or Section 13.2 hereof, or alter the allocations
specified in Article 6 hereof (except, in any case, as permitted pursuant
to Sections 4.2 and 7.3(c) hereof), (iv) alter or modify the rights of the
▇▇▇▇▇▇▇ Limited Partners set forth herein that requires the Consent of the
▇▇▇▇▇▇▇ Limited Partners, or amend or modify any related definitions, (v)
alter the notice periods set forth in this Agreement, (vi) adversely
affect the rights of the Holders of the ▇▇▇▇▇▇▇ Preferred Units in any
material respect or (vii) amend Section 7.3(b), 7.3(c), 7.3(e) or this
Section 7.3(d); provided, however, that the written consent of any
individual Partner adversely affected shall not be required for any
amendment or action that affects all Partners holding the same class or
series of Partnership Units on a uniform or pro rata basis, if Approved by
a Majority in Interest of the Partners holding such class or series of
Partnership Units. Any such amendment or action consented to by any
Partner shall be effective as to that Partner, notwithstanding the absence
of such consent by any other Partner.
(e) Except as provided in this Section 7.3, this Agreement may not
be amended without obtaining the consent of the holders of a majority of
the ▇▇▇▇▇▇▇ Preferred Units.
Section 7.4 Reimbursement of the General Partner.
(a) Subject to Section 7.4(b), Section 7.4(c) and the Corporate
Overhead Agreement, the Partnership shall be liable for, and shall
reimburse the General Partner on a monthly basis, or such other basis as
the General Partner may determine in its Sole and Absolute Discretion, for
all sums expended in connection with the Partnership's business,
including, without limitation, (i) expenses relating to the ownership of
interests in and management and operation of, or for the benefit of, the
Partnership and (ii) compensation of officers and employees, including,
without limitation, payments under future compensation plans of the
Partnership or any of its Affiliates. Such reimbursements shall be in
addition to any reimbursement of the General Partner as a result of
indemnification pursuant to and Section 7.7 hereof.
(b) Subject to the terms of the Indenture, the Partnership shall
reimburse the General Partner an amount equal to the aggregate amount of
bonuses paid by the General Partner (or ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Hotels, Inc. in
its capacity as the predecessor General Partner) to the holders of the
options to purchase shares of common stock of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Hotels, Inc.
issued under, and in accordance with, the ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Hotels, Inc.
1994 Employee Stock Option Plan and the ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Hotels, Inc. 1999
Non-Employee Director Stock and Stock Option Plan, so long as (i) such
reimbursement does not reduce Net Worth below the Net Worth Threshold and
(ii) during any Partnership Year, the aggregate amount of all such
reimbursements, together with any Distributions of Available Closing Cash
in such Partnership Year, does not exceed the Annual Cap.
35
(c) To the extent practicable, Partnership expenses shall be billed
directly to and paid by the Partnership and all reimbursements to the
General Partner or any of its Affiliates or ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Hotels, Inc.,
in its status as predecessor General Partner, by the Partnership pursuant
to this Section 7.4 shall be characterized for Federal income tax purposes
as expenses of the Partnership incurred on its behalf, and not expenses of
the General Partner or ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Hotels, Inc., in its status as
predecessor General Partner.
Section 7.5 Outside Activities. Except as otherwise provided by separate
written agreement, the General Partner and any Assignee, officer, director,
employee, agent, trustee, Affiliate, member, partner or shareholder of the
General Partner may engage in or possess any interest in other business ventures
of any kind, nature or description, independently or with others (including
business ventures that may compete with the Partnership).
Section 7.6 Reserves; Working Capital.
(a) For so long as the ▇▇▇▇▇▇▇ Limited Partners or any of their
transferees (other than the Required Holders) hold any ▇▇▇▇▇▇▇ Preferred
Units, in respect of each Partnership Year, (i) the Partnership will make
capital expenditures in accordance with GAAP with respect to the
Properties, which capital expenditures do not materially increase the
number of guest rooms or meeting rooms of the hotels of the Partnership
and its Subsidiaries in the aggregate, in an amount not less than (A) the
Required Reserve for such Partnership Year, reduced by (B) the aggregate
amount of such capital expenditures made for all Partnership Years
preceding such Partnership Year in excess of the aggregate amount of the
Required Reserves for all such prior Partnership Years, commencing on the
Partnership Year of 2005; and (ii) the Partnership will have funds
available (either in the form of cash or cash equivalents or pursuant to
lines of credit) for such expenditures. Notwithstanding the foregoing, so
long as the ▇▇▇▇▇▇▇ Limited Partners or any of their transferees (other
than the Required Holders) hold any ▇▇▇▇▇▇▇ Preferred Units, the
Partnership shall comply in all material respects with the capital
expenditure requirements under its franchise agreements.
(b) All Cash of the Partnership and its Subsidiaries remaining after
payment of the current obligations of the Partnership and its Subsidiaries
shall be held as a reserve for working capital purposes until such time as
the Partnership and its Subsidiaries have available (either in the form of
cash or cash equivalents or pursuant to lines of credit) for such purposes
an amount not less than the product of $2,000, multiplied by the aggregate
number of the guest rooms of the hotels owned by the Partnership and its
Subsidiaries.
Section 7.7 Indemnification.
(a) To the fullest extent permitted by applicable law, the
Partnership shall indemnify each Indemnitee from and against any and all
losses, claims, damages, liabilities, joint or several, expenses
(including, without limitation, reasonable attorney's fees and other legal
fees and expenses), judgments, fines, settlements and other amounts
arising from any and all claims, demands, actions, suits or proceedings,
civil, criminal, administrative or investigative, that relate to the
operations of the Partnership ("ACTIONS") as set forth in this Agreement
in which such Indemnitee may be involved, or is threatened to be involved,
as a party or otherwise; provided, however, that (i) the Partnership shall
not indemnify an Indemnitee for fraud, willful misconduct, breach of
fiduciary duty, gross negligence or a material breach of the terms of this
Agreement, except to the extent that any such action is covered by any of
the insurance policies of the Partnership and its Subsidiaries and then
only to the extent of such coverage; and (ii) the Partnership shall not
indemnify any of the ▇▇▇▇▇▇▇ Limited Partners or any of its directors,
members, officers or employees for any Action arising in connection with,
or related to, the performance of any of the obligations contemplated by
the Management Agreement or the JQH Line of Credit. Without limitation,
the foregoing indemnity shall extend to any liability of any Indemnitee,
pursuant to a loan guaranty or otherwise, for any indebtedness of the
Partnership or any Subsidiary of the Partnership (including, without
limitation, any indebtedness which the Partnership or any Subsidiary of
the Partnership has assumed or taken subject to), and the General Partner
is hereby authorized and empowered, on behalf of the Partnership, to enter
into one or more indemnity agreements consistent with the provisions of
this
36
Section 7.7 in favor of any Indemnitee having or potentially having
liability for any such indebtedness; provided, however, that no Indemnitee
shall receive indemnification under this Agreement on account of any
financing arrangement related to the JQH Line of Credit, including but not
limited to the LIBOR Differential, that is not directly attributable to a
default on the part of the ▇▇▇▇▇▇▇ Partners under the JQH Line of Credit.
Any indemnification pursuant to this Section 7.7 shall be made only out of
the assets of the Partnership, and neither the General Partner nor any
other Holder shall have any obligation to contribute to the capital of the
Partnership or otherwise provide funds to enable the Partnership to fund
its obligations under this Section 7.7.
(b) To the fullest extent permitted by law, reasonable expenses
incurred by an Indemnitee who is a party to a proceeding or otherwise
subject to or the focus of or is involved in any Action shall be paid or
reimbursed by the Partnership as incurred by the Indemnitee in advance of
the final disposition of the Action upon receipt by the Partnership of (i)
a written affirmation by the Indemnitee of the Indemnitee's good faith
belief that the standard of conduct necessary for indemnification by the
Partnership as authorized in Section 7.7(a) has been met and (ii) a
written undertaking by or on behalf of the Indemnitee to repay the amount
if it shall ultimately be determined that the standard of conduct has not
been met.
(c) The indemnification provided by this Section 7.7 shall be in
addition to any other rights to which an Indemnitee or any other Person
may be entitled under any agreement, pursuant to any vote of the Partners,
as a matter of law or otherwise, and shall continue as to an Indemnitee
who has ceased to serve in such capacity and shall inure to the benefit of
the heirs, successors, assigns and administrators of the Indemnitee unless
otherwise provided in a written agreement with such Indemnitee or in the
writing pursuant to which such Indemnitee is indemnified.
(d) The Partnership may, but shall not be obligated to, purchase and
maintain insurance, on behalf of any of the Indemnitees and such other
Persons as the General Partner shall determine, against any liability that
may be asserted against or expenses that may be incurred by such Person in
connection with the Partnership's activities, regardless of whether the
Partnership would have the power to indemnify such Person against such
liability under the provisions of this Agreement.
(e) Any liabilities which an Indemnitee incurs as a result of acting
on behalf of the Partnership, or the General Partner (whether as a
fiduciary or otherwise) in connection with the operation, administration
or maintenance of an employee benefit plan or any related trust or funding
mechanism (whether such liabilities are in the form of excise taxes
assessed by the IRS, penalties assessed by the Department of Labor,
restitutions to such a plan or trust or other funding mechanism or to a
participant or beneficiary of such plan, trust or other funding mechanism,
or otherwise) shall be treated as liabilities or judgments or fines under
this Section 7.7, unless such liabilities arise as a result of (i) such
Indemnitee's intentional misconduct or knowing violation of the law, or
(ii) any transaction in which such Indemnitee received a personal benefit
in violation or breach of any provision of this Agreement or applicable
law.
(f) In no event may an Indemnitee subject any of the Holders to
personal liability by reason of the indemnification provisions set forth
in this Agreement.
(g) The provisions of this Section 7.7 are for the benefit of the
Indemnitees, their heirs, successors and administrators and shall not be
deemed to create any rights for the benefit of any other Persons. Any
amendment, modification or repeal of this Section 7.7 or any provision
hereof shall be prospective only and shall not in any way affect the
limitations on the Partnership's liability to any Indemnitee under this
Section 7.7 as in effect immediately prior to such amendment, modification
or repeal with respect to claims arising from or relating to matters
occurring, in whole or in part, prior to such amendment, modification or
repeal, regardless of when such claims may arise or be asserted.
(h) It is the intent of the parties that any amounts paid by the
Partnership to the General Partner pursuant to this Section 7.7 shall be
treated as "guaranteed payments" within the meaning of Code Section
707(c).
37
(i) Nothing in this Section 7.7 provides or shall be interpreted to
provide JQH or ▇▇▇▇▇▇▇, Inc. with any right to be reimbursed or
indemnified for the amount of additional Capital Contributions, if any,
required to be made by JQH or ▇▇▇▇▇▇▇, Inc. pursuant to Section 4.5
hereof.
Section 7.8 Liability of the General Partner.
(a) Notwithstanding anything herein to the contrary, except for
fraud, willful misconduct or gross negligence, or pursuant to any express
indemnities given to the Partnership by any Partner pursuant to any other
written instrument, the General Partner shall have no personal liability
whatsoever to the Partnership or to the other Partners, for the debts or
liabilities of the Partnership or the Partnership's obligations hereunder,
and the full recourse of the General Partner shall be limited to its
interest in the Partnership; provided that the ▇▇▇▇▇▇▇ Limited Partners
also shall be entitled to (i) relief in respect of any breach by the
General Partner of its obligations under Section 7.1(f) and any other
material breach of its obligations under this Agreement (subject to
Section 5.5(c)) and (ii) recourse against the General Partner's other
assets. To the fullest extent permitted by law, no officer, director,
manager, member or shareholder of the General Partner shall be liable to
the Partnership or to any other Partner for money damages except for (i)
active and deliberate dishonesty established by a non-appealable final
judgment or (ii) actual receipt of an improper benefit or profit in money,
property or services. Without limitation of the foregoing, subject to the
proviso in the first sentence of this Section 7.8(a), and except for
fraud, willful misconduct or gross negligence, or pursuant to any such
express indemnity, no property or assets of the General Partner, other
than its interest in the Partnership, shall be subject to levy, execution
or other enforcement procedures for the satisfaction of any judgment (or
other judicial process) in favor of any other Partner(s) and arising out
of, or in connection with, this Agreement. This Agreement is executed by
the officers of the General Partner, solely as officers of the same and
not in their own individual capacities.
(b) Notwithstanding anything to the contrary set forth in this
Agreement, but subject to the obligations owed to the ▇▇▇▇▇▇▇ Limited
Partners in Section 7.8(a) foregoing, neither the General Partner nor any
of its directors, managers or officers shall be liable or accountable in
damages or otherwise to the Partnership, any Partners or any Assignees for
losses sustained, liabilities incurred or benefits not derived as a result
of errors in judgment or mistakes of fact or law or of any act or omission
if the General Partner or such director, manager or officer acted in good
faith.
(c) Subject to its obligations and duties as General Partner set
forth in Section 7.1(a) hereof, the General Partner may exercise any of
the powers granted to it by this Agreement and perform any of the duties
imposed upon it hereunder either directly or by or through its employees
or agents. Subject to Section 7.1(f), the General Partner shall not be
responsible for any misconduct or negligence on the part of any such agent
appointed by it in good faith.
(d) Any amendment, modification or repeal of this Section 7.8 or any
provision hereof shall be prospective only and shall not in any way affect
the limitations on the General Partner's or any of its officers',
directors' or managers' liability to the Partnership and the Limited
Partners under this Section 7.8 as in effect immediately prior to such
amendment, modification or repeal with respect to claims arising from or
relating to matters occurring, in whole or in part, prior to such
amendment, modification or repeal, regardless of when such claims may
arise or be asserted.
(e) The provisions of this Agreement, to the extent that they
restrict the duties and liabilities of the General Partner otherwise
existing at law or in equity, are agreed by the Partners to replace such
other duties and liabilities of the General Partner.
(f) Whenever in this Agreement the General Partner is permitted or
required to make a decision in its "SOLE AND ABSOLUTE DISCRETION," the
General Partner shall be entitled to consider only such interests and
factors as it desires and shall have no duty or obligation to give any
consideration to any interest or factors affecting the Partnership or the
Partners or any of them, subject to its obligations under Section 7.1(f).
Section 7.9 Other Matters Concerning the General Partner.
38
(a) Subject to Section 7.1(f), the General Partner may rely and
shall be protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, bond, debenture or other paper or document
believed by it in good faith to be genuine and to have been signed or
presented by the proper party or parties.
(b) Subject to Section 7.1(f), the General Partner may consult with
legal counsel, accountants, appraisers, management consultants, investment
bankers, architects, engineers, environmental consultants and other
consultants and advisers selected by it, and any act taken or omitted to
be taken in reliance upon the opinion of such Persons as to matters that
the General Partner reasonably believes to be within such Person's
professional or expert competence shall be conclusively presumed to have
been done or omitted in good faith and in accordance with such opinion.
(c) The General Partner shall have the right, in respect of any of
its powers or obligations hereunder, to act through any of its duly
authorized officers and a duly appointed attorney or attorneys-in-fact.
Each such attorney shall, to the extent provided by the General Partner in
the power of attorney, have full power and authority to do and perform all
and every act and duty that is permitted or required to be done by the
General Partner hereunder.
(d) Without the Consent of the ▇▇▇▇▇▇▇ Limited Partners, the General
Partner, whether it be the General Partner as of the Effective Date or a
successor to such General Partner, shall hold no less than 25% of each
class or type of the outstanding Partnership Units (other than the ▇▇▇▇▇▇▇
Preferred Units) and shall not pledge such Partnership Units to any
lender.
Section 7.10 Title to Partnership Assets. Title to Partnership Property,
whether real, personal or mixed and whether tangible or intangible, shall be
deemed to be owned by the Partnership as an entity, and no Partner,
individually, or collectively with other Partners or Persons, shall have any
ownership interest in such Partnership Property or any portion thereof. Title to
any or all of the Partnership Property shall be held in the name of the
Partnership. All Partnership Property shall be recorded as the property of the
Partnership in its books and records.
Section 7.11 Reliance by Third Parties. Notwithstanding anything to the
contrary in this Agreement, barring actual knowledge to the contrary, any Person
dealing with the Partnership shall be entitled to assume that the General
Partner has full power and authority, without the consent or approval of any
other Partner, or Person, to encumber, sell or otherwise use in any manner any
and all Property of the Partnership and to enter into any contracts on behalf of
the Partnership, and take any and all actions on behalf of the Partnership, and
such Person shall be entitled to deal with the General Partner as if it were the
Partnership's sole party in interest, both legally and beneficially. In no event
shall any Person dealing with the General Partner or its representatives be
obligated to ascertain that the terms of this Agreement have been complied with
or to inquire into the necessity or expediency of any act or action of the
General Partner or its representatives. Each and every certificate, document or
other instrument executed on behalf of the Partnership by the General Partner or
its representatives shall be conclusive evidence in favor of any and every
Person relying thereon or claiming thereunder that (i) at the time of the
execution and delivery of such certificate, document or instrument, this
Agreement was in full force and effect, (ii) the Person executing and delivering
such certificate, document or instrument was duly authorized and empowered to do
so for and on behalf of the Partnership and (iii) such certificate, document or
instrument was duly executed and delivered in accordance with the terms and
provisions of this Agreement and is binding upon the Partnership.
ARTICLE 8
RIGHTS AND OBLIGATIONS OF LIMITED PARTNERS
Section 8.1 Limitation of Liability. No Limited Partner shall have any
liability under this Agreement except as expressly provided in this Agreement
(including, without limitation, Section 10.4 hereof) or under the Act.
Section 8.2 Management of Business. No Limited Partner or Assignee (other
than the General Partner, any of its Affiliates or any officer, director,
member, employee, partner, agent or trustee of the General Partner, the
Partnership or any of their Affiliates, in their capacity as such) shall take
part in the operations, management or control (within the meaning of the Act) of
the Partnership's business, transact any business in the
39
Partnership's name or have the power to sign documents for or otherwise bind the
Partnership. The transaction of any such business by the General Partner, any of
its Affiliates or any officer, director, member, employee, partner, agent,
representative, or trustee of the General Partner, the Partnership or any of
their Affiliates, in their capacity as such, shall not affect, impair or
eliminate the limitations on the liability of the Limited Partners or Assignees
under this Agreement.
Section 8.3 Outside Activities of Limited Partners; Related Party
Transactions. Except as otherwise provided by separate written agreement
(including the Management Agreement), any Limited Partner and any Assignee,
officer, director, employee, agent, trustee, Affiliate, member or shareholder of
any Limited Partner may engage in or possess any interest in other business
ventures of any kind, nature or description, independently or with others,
including business ventures that may compete with the Partnership. The Partners
acknowledge that New JQH LLC and TRS are parties to the Management Services
Agreement, dated as of the date hereof (the "MANAGEMENT AGREEMENT").
Section 8.4 Return of Capital. Except pursuant to the rights of
liquidation set forth in Article 15 hereof, no Limited Partner shall be entitled
to the withdrawal or return of its Capital Contribution, except to the extent of
Distributions made pursuant to this Agreement or upon termination of the
Partnership as provided herein. Except to the extent provided in Article 6 and
Article 15 hereof and otherwise expressly provided in this Agreement, no Limited
Partner or Assignee shall have priority over any other Limited Partner or
Assignee either as to the return of Capital Contributions or as to profits,
losses or distributions.
ARTICLE 9
BOOKS, RECORDS, ACCOUNTING AND REPORTS
Section 9.1 Records and Accounting.
(a) The General Partner shall keep or cause to be kept at the
principal office of the Partnership those records and documents required
to be maintained by the Act and other books and records that are customary
and appropriate with respect to the Partnership's business, including,
without limitation, all books and records necessary to provide to the
Limited Partners any information, lists and copies of documents required
to be provided pursuant to Article 5, Section 7.3, Section 9.3, Section
9.4 or Article 13 hereof. Any records maintained by or on behalf of the
Partnership in the regular course of its business may be kept on, or be in
the form for, any information storage device, provided that the records so
maintained are convertible into clearly legible written form within a
reasonable period of time. Each ▇▇▇▇▇▇▇ Limited Partner shall have the
right during ordinary business hours, at the reasonable request of any
such Partner and at such Partner's expense, to inspect and examine all
books and records of the Company required to be kept by the Act.
(b) The books of the Partnership shall be maintained, for financial
and tax reporting purposes, on an accrual basis in accordance with GAAP.
To the extent permitted by sound accounting practices and principles, the
Partnership and the General Partner may operate with integrated or
consolidated accounting records, operations and principles.
Section 9.2 Partnership Year. The Partnership Year of the Partnership
shall be the fifty-two (52) or fifty-three (53) week period ending on the Friday
nearest December 31 in each year.
Section 9.3 Reports.
(a) Within 90 days after the end of each Partnership Year, the
Partnership shall deliver to each ▇▇▇▇▇▇▇ Limited Partner an annual report
containing the following:
(i) financial statements of the Partnership and its
Subsidiaries, including, without limitation, a balance sheet as of
the end of such Partnership Year and statements of income, Partners'
equity and cash flows for such Partnership Year, which shall be
prepared in accordance with GAAP consistently applied and shall be
certified by a firm of independent certified public accountants;
40
(ii) a statement, in reasonable detail, showing the Capital
Account of each Holder and detailing the Capital Contributions of,
distributions to, and gains and losses allocated to, each Holder for
such Fiscal Year; and
(iii) a statement setting forth the current operating reserves
and Required Reserves of the Partnership [and a reconciliation of
the beginning and ending balances thereof with sufficient detail to
identify the specific Property(ies) to which such reserve funds were
applied during the year and the purposes thereof.
(b) Within forty-five (45) days after the end of each calendar
month, there shall be prepared and delivered to each ▇▇▇▇▇▇▇ Limited
Partner (i) a balance sheet as of the end of such month and related
financial statements for the month then ended prepared on a basis
consistent with past practice; and (ii) other pertinent information
prepared by the Partnership and its Subsidiaries as reasonably requested
by the ▇▇▇▇▇▇▇ Limited Partners.
(c) Notwithstanding the other provisions of this Section 9.3, if
information from the Partnership sufficient to prepare the reports
required under this Section 9.3 has not been obtained from the
Subsidiaries of the Partnership within the time period required for the
report to be furnished by the Partnership, the Partnership shall cause to
be provided a good faith estimate of the information required to satisfy
the requirements of this Section 9.3. In addition, the Partnership shall
promptly provide the required reports when the necessary information is
provided by the Subsidiaries of the Partnership.
Section 9.4 Determination of Liquidation Value. No later than thirty 30
days after (i) the sixth anniversary of the Effective Date and (ii) each
anniversary of the Effective Date thereafter until the earlier to occur of (A) a
Liquidating Event and (B) such time as no ▇▇▇▇▇▇▇ Preferred Units remain
outstanding, the General Partner shall deliver to the ▇▇▇▇▇▇▇ Representative a
GP Certificate, certifying the General Partner's determination of Liquidation
Value (the "GP LV DETERMINATION") as of the date of the GP Certificate, together
with all relevant financial statements and other relevant information supporting
such determination. Within thirty (30) days after receipt of such GP
Certificate, the ▇▇▇▇▇▇▇ Representative shall notify the General Partner in
writing if the ▇▇▇▇▇▇▇ Limited Partners agree with the GP LV Determination, and,
if the ▇▇▇▇▇▇▇ Representative accepts the GP LV Determination, then the same
shall be the Liquidation Value for all purposes under this Agreement until the
subsequent annual determination of Liquidation Value. If the ▇▇▇▇▇▇▇
Representative in good faith does not agree with the GP LV Determination, then
the ▇▇▇▇▇▇▇ Representative shall notify the General Partner of its disagreement
in writing, setting forth in reasonable detail the manner in which the ▇▇▇▇▇▇▇
Representative calculates Liquidation Value, and the expert resolution
procedures set forth in Section 5.5 shall apply (unless the ▇▇▇▇▇▇▇
Representative and the General Partner agree to resolve the disagreement by
other means). Any failure by the ▇▇▇▇▇▇▇ Representative to so notify the General
Partner in writing of its position with respect to the GP LV Determination
within thirty (30) days after receipt of the applicable GP Certificate shall be
deemed an acceptance by the ▇▇▇▇▇▇▇ Limited Partners of the GP LV Determination.
To the extent necessary to calculate Liquidation Value, the ▇▇▇▇▇▇▇
Representative shall have timely access to and shall be provided by the
Partnership with any and all relevant financial statements and reports available
with respect to the Partnership. The General Partner and the ▇▇▇▇▇▇▇ Limited
Partners hereby agree that they shall use reasonable best efforts to have
Liquidation Value determined as soon as reasonably possible after a GP
Certificate is delivered.
ARTICLE 10
TAX MATTERS
Section 10.1 Preparation of Tax Returns. The General Partner shall arrange
for the preparation and timely filing of all returns with respect to Partnership
income, gains, deductions, losses and other items required of the Partnership
for Federal and state income tax purposes and shall use all reasonable effort to
furnish, within ninety (90) days of the close of each taxable year, the tax
information reasonably required by Limited Partners and for Federal and state
income tax reporting purposes. The Limited Partners shall promptly provide the
General Partner with such information relating to the Contributed Properties,
including tax basis and other relevant information, as may be reasonably
requested by the General Partner from time to time.
41
Section 10.2 Tax Elections. Except as otherwise provided herein, the
General Partner shall, in its Sole and Absolute Discretion, determine whether to
make any available election pursuant to the Code, including, but not limited to,
the election under Code Section 754 and the election to use the "recurring item"
method of accounting provided under Code Section 461(h) with respect to property
taxes imposed on the Partnership's Properties; provided, however, that, an
election under Code Section 754 shall be made in the event of the death of JQH
if not already in effect, and if the "recurring item" method of accounting is
elected with respect to such property taxes, the Partnership shall pay the
applicable property taxes prior to the date provided in Code Section 461(h) for
purposes of determining economic performance. The General Partner shall have the
right to seek to revoke any such election (including, without limitation, any
election under Code Sections 461(h) and 754) upon the General Partner's
determination in its Sole and Absolute Discretion that such revocation is in the
best interests of the Partners, provided, however, with respect to the
revocation of a Code Section 754 election, the Consent of the ▇▇▇▇▇▇▇ Limited
Partners shall be required, such consent not to be unreasonably withheld or
delayed. The foregoing and any other provisions of this Agreement to the
contrary notwithstanding, any and all of the tax allocation provisions,
elections and adoptions of methods set forth or referenced herein including,
without limitation, the Code Section 704(c) and reverse Code Section 704(c)
traditional method, prescribed in Regulations 1.704-3(b) are contractual
agreements and shall not be modified, changed, altered or revoked even as to new
or additional assets, subsequent gains or if a new partnership is deemed formed
after a technical or other termination of the Partnership under Code Section
708, including a liquidation pursuant to Section 13.3 hereof.
Section 10.3 Tax Matters Partner.
(a) The General Partner shall be the "tax matters partner" of the
Partnership for Federal income tax purposes. The tax matters partner shall
receive no compensation for its services. All third-party costs and
expenses incurred by the tax matters partner in performing its duties as
such (including legal and accounting fees and expenses) shall be borne by
the Partnership as a reimbursement pursuant to Section 7.4 hereof. Nothing
herein shall be construed to restrict the Partnership from engaging an
accounting firm to assist the tax matters partner in discharging its
duties hereunder. At the request of any Limited Partner, the General
Partner agrees to inform such Limited Partner regarding the preparation
and filing of any returns and with respect to any subsequent audit or
litigation relating to such returns and to promptly provide each Partner
with a copy of any and all such returns; provided, however, that the
filing of such returns shall be in the Sole and Absolute Discretion of the
General Partner.
(b) The tax matters partner is authorized, but not required:
(i) to enter into any settlement with the IRS with respect to
any administrative or judicial proceedings for the adjustment of
Partnership items required to be taken into account by a Partner for
income tax purposes (such administrative proceedings being referred
to as a "tax audit" and such judicial proceedings being referred to
as "judicial review"), and in the settlement agreement the tax
matters partner may expressly state that such agreement shall bind
all Partners, except that such settlement agreement shall not bind
any Partner (i) who (within the time prescribed pursuant to the Code
and Regulations) files a statement with the IRS providing that the
tax matters partner shall not have the authority to enter into a
settlement agreement on behalf of such Partner (as the case may be)
or (ii) who is a "notice partner" (as defined in Code Section 6231)
or a member of a "notice group" (as defined in Code Section
6223(b)(2));
(ii) in the event that a notice of a final administrative
adjustment at the Partnership level of any item required to be taken
into account by a Partner for tax purposes (a "final adjustment") is
mailed to the tax matters partner, to seek judicial review of such
final adjustment, including the filing of a petition for
readjustment with the United States Tax Court or the United States
Claims Court, or the filing of a complaint for refund with the
District Court of the United States for the district in which the
Partnership's principal place of business is located;
(iii) to intervene in any action brought by any other Partner
for judicial review of a final adjustment;
42
(iv) to file a request for an administrative adjustment with
the IRS at any time and, if any part of such request is not allowed
by the IRS, to file an appropriate pleading (petition or complaint)
for judicial review with respect to such request;
(v) to enter into an agreement with the IRS to extend the
period for assessing any tax that is attributable to any item
required to be taken into account by a Partner for tax purposes, or
an item affected by such item provided the tax matters partner
receives the Consent of the ▇▇▇▇▇▇▇ Limited Partners, which consent
shall not be unreasonably withheld or delayed; and
(vi) to take any other action on behalf of the Partners or any
of them in connection with any tax audit or judicial review
proceeding to the extent permitted by applicable law or regulations.
The taking of any action and the incurring of any expense by the tax
matters partner in connection with any such proceeding, except to the
extent required by law, is a matter in the Sole and Absolute Discretion of
the tax matters partner and the provisions relating to indemnification of
the General Partner set forth in Section 7.7 hereof shall be fully
applicable to the tax matters partner in its capacity as such.
(c) The tax matters partner shall furnish information on all Holders
of Partnership Units to the IRS sufficient to assure that all Holders of
Partnership Units will be entitled to notices as provided in Code Section
6223(a).
(d) The tax matters partner shall timely notify JQH Trust of any
administrative or judicial proceedings for the adjustment of Partnership
items in the event that the tax matters partner has failed to furnish the
required information to all Holders of Partnership Units to the IRS which
would otherwise result in JQH Trust's receiving such notice.
Section 10.4 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 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 Section 1441, Code
Section 1442, Code Section 1445 or Code Section 1446. Any amount paid on behalf
of or with respect to a Limited Partner other than amounts required to be
distributed to such Limited Partner pursuant to Section 5.2 or 5.3 hereof or
paid to such Limited Partner pursuant to the Tax Indemnity Payment shall
constitute a loan by the Partnership to such Limited Partner, which loan shall
be repaid by such Limited Partner within fifteen (15) days after notice from the
General Partner that such payment must be made unless (i) the Partnership
withholds such payment from a distribution, including a required tax
distribution under Section 5.2 or 5.3 or a tax indemnity payment under the Tax
Indemnity Agreement, that would otherwise be made to the Limited Partner or (ii)
the General Partner determines, in its Sole and Absolute Discretion, that such
payment may be satisfied out of the Operating Cash of the Partnership that
would, but for such payment, be distributed to the Limited Partner. In the event
that a Limited Partner fails to pay any amounts owed to the Partnership pursuant
to this Section 10.4 when due, the General Partner may, in its Sole and Absolute
Discretion, elect to make the payment to the Partnership on behalf of such
defaulting Limited Partner, and in such event shall be deemed to have loaned
such amount to such defaulting Limited Partner and shall succeed to all rights
and remedies of the Partnership as against such defaulting Limited Partner
(including, without limitation, the right to receive distributions), provided,
however, that the Limited Partner shall have a period of thirty (30) days to
remedy any such default after notice from the General Partner. Any amounts
payable by a Limited Partner hereunder shall bear interest at the base rate on
corporate loans at large United States money center commercial banks, as
published from time to time in the Wall Street Journal, plus four (4) percentage
points (but not higher than the maximum lawful rate) from the date such amount
is due (i.e., fifteen (15) days after demand) until such amount is paid in full.
Each Limited Partner shall take such actions as the Partnership or the General
Partner shall request in order to perfect or enforce the security interest
created hereunder.
Section 10.5 Organizational Expenses. The General Partner may cause the
Partnership to elect to deduct expenses, if any, incurred by it in organizing
the Partnership ratably over a 180-month period as provided in Code Section 709.
43
ARTICLE 11
PARTNERSHIP INTEREST TRANSFERS AND PARTNER WITHDRAWALS
Section 11.1 Transfer.
(a) No part of the Partnership Interest of a Partner shall be
subject to the claims of any creditor, to any spouse for alimony or
support, or to legal process, and may not be voluntarily or involuntarily
alienated or encumbered, except as may be specifically provided for in
this Agreement.
(b) No Partnership Interest shall be Transferred, in whole or in
part, except in accordance with the terms and conditions set forth in this
Article 11. Any Transfer or purported Transfer of a Partnership Interest
not made in accordance with this Article 11 shall be null and void ab
initio.
(c) Except for a Transfer to iStar, its assignees, transferees or
designees in connection with a Lender Transfer, no Transfer of any
Partnership Interest may be made to a lender to the Partnership or any
Person who is related (within the meaning of Regulations Section
1.752-4(b)) to any lender to the Partnership whose loan constitutes a
Nonrecourse Liability, without the consent of the General Partner in its
Sole and Absolute Discretion.
Section 11.2 Transfer of General Partner's Partnership Interests.
(a) Subject to Section 7.9, the Partnership Interests of the General
Partner may be Transferred, in whole or in part, at any time or from time
to time, to any Qualified Transferee; provided that (i) any Transfer will
include a pro rata portion of Partnership profits, losses and capital, and
(ii) the transferee of the entire General Partner Interest shall be a
sophisticated investor with experience in owning and managing hospitality
assets, or such transferee shall retain an asset manager with such
experience (all costs of retaining such a manager to be borne by such
transferee). Any transferee of the entire General Partner Interest shall,
upon compliance with Section 12.1(a) hereof, become, without further
action or consent of any Partner or other Person, the sole General Partner
of the Partnership, subject to all the rights, privileges, duties and
obligations under this Agreement and the Act relating to a General
Partner. Any transferee of less than all of the Partnership Interests of
the General Partner shall, upon compliance with Section 12.1(b) hereof,
become, without further action or consent of any Partners (other than the
General Partner) or other Persons, an Additional Limited Partner, subject
to all the rights, privileges, duties and obligations under this Agreement
and the Act relating to a Limited Partner. Any Partnership Interest so
Transferred pursuant to this Section 11.2(a) shall have only such rights
and preferences of the Partnership Interest so Transferred.
(b) In the event that the General Partner withdraws from the
Partnership, in violation of this Agreement or otherwise, or otherwise
dissolves or terminates, or upon the bankruptcy of the General Partner, a
Majority in Interest of the Partners may elect to continue the Partnership
business by selecting a successor General Partner in accordance with
Section 13.1(a) hereof.
Section 11.3 Limited Partners' Rights to Transfer.
(a) ▇▇▇▇▇▇▇ Limited Partners. No ▇▇▇▇▇▇▇ Limited Partner shall
Transfer all or any portion of its Partnership Interest to any transferee
without the written consent of the General Partner, which consent may be
withheld in its Sole and Absolute Discretion; provided, however, that any
▇▇▇▇▇▇▇ Limited Partner, any representative of a ▇▇▇▇▇▇▇ Limited Partner or
iStar or any designee of iStar may, at any time, without the written consent of,
but after providing notice to, the General Partner, (i) Transfer all or any
portion of a ▇▇▇▇▇▇▇ Preferred Interest to the other ▇▇▇▇▇▇▇ Limited Partner, to
JQH or to any transferee by operation of law, including as a result of the death
of JQH (any such Transfer, a "PERMITTED TRANSFER") or (ii) pledge all or any
portion of a Partnership Interest to Lendco or to iStar under the JQH Line of
Credit and Transfer (directly or indirectly) such pledged Partnership Interest
to such lender or any of its assignees, transferees or designees in connection
with, and after, the exercise of remedies under the JQH Line of Credit (any such
Transfer, the "LENDER TRANSFER"). Without the written consent of the General
Partner, which written consent may be withheld in its Sole and Absolute
Discretion, (a) ▇▇▇▇▇▇▇, Inc. shall cause each of its stockholders not to
Transfer, directly or indirectly, all or any portion of
44
such stockholder's capital stock or other equity securities or Convertible
Securities in ▇▇▇▇▇▇▇, Inc., and (b) ▇▇▇▇▇▇▇, Inc. shall not issue any capital
stock or other equity securities or Convertible Securities.
(b) Other Limited Partners. No Other Limited Partner shall Transfer
all or any portion of its Partnership Interest to any transferee without the
written consent of the General Partner, which written consent may be withheld in
its Sole and Absolute Discretion.
(c) Obligations of Transferor Partner. Other than in connection with
any Lender Transfer, it is a condition to any Transfer otherwise permitted
hereunder (whether or not such Transfer is a Permitted Transfer) that the
transferee assume by operation of law or express agreement all of the
obligations of the transferor Limited Partner under this Agreement with respect
to such Transferred Partnership Interest, and no such Transfer shall relieve the
transferor Partner of its obligations under this Agreement without the written
consent of the General Partner, which consent may be withheld in its Sole and
Absolute Discretion. Except for a Lender Transfer, any transferee, whether or
not admitted as a Substituted Limited Partner, shall take subject to the
obligations of the transferor hereunder. Unless admitted as a Substituted
Limited Partner, no transferee, whether by a voluntary Transfer, by operation of
law or otherwise, shall have any rights hereunder, other than the rights of an
Assignee as provided in Section 11.5 hereof.
(d) Incapacity. If a Limited Partner is subject to Incapacity, the
executor, administrator, trustee, committee, guardian, conservator or receiver
of such Limited Partner's estate shall have all the rights of a Limited Partner,
but not more rights than those enjoyed by other Limited Partners, for the
purpose of settling or managing the estate, and such power as the Incapacitated
Limited Partner possessed to Transfer all or any part of its Partnership
Interest. The Incapacity of a Limited Partner, in and of itself, shall not
dissolve or terminate the Partnership.
(e) Adverse Tax Consequences. No Transfer by a Limited Partner of
its Partnership Interests may be made to or by any Person, other than a Transfer
to iStar or its assignees, transferees or designees in connection with a Lender
Transfer, if (i) in the opinion of legal counsel for the Partnership, it would
result in the Partnership being treated as an association taxable as a
corporation or would result in a termination of the Partnership under Code
Section 708, or (ii) such Transfer would be effectuated through an "established
securities market" or a "secondary market (or the substantial equivalent
thereof)" within the meaning of Code Section 7704.
Section 11.4 Substituted Limited Partners.
(a) No Limited Partner shall have the right to substitute a
transferee (including any transferees pursuant to Transfers permitted by
Section 11.3 hereof) as a Limited Partner in its place. A transferee of
the interest of a Limited Partner may be issued Partnership Unit
Certificates and admitted as a Substituted Limited Partner only with the
written consent of the General Partner, which consent may be withheld in
its Sole and Absolute Discretion. Notwithstanding the foregoing (i) upon
any Lender Transfer, iStar and any assignee, transferee or designee of
iStar in connection with a Lender Transfer shall be admitted as a
Substituted Limited Partner, subject to clauses (i) and (ii) of the last
sentence of this Section 11.4(a) and (ii) any holder of ▇▇▇▇▇▇▇ Preferred
Interests acquired as a result of a Permitted Transfer shall be admitted
as a Substituted Limited Partner, subject to clauses (i) and (ii) of the
last sentence of this Section 11.4(a). The failure or refusal by the
General Partner to permit a transferee of any such interests to become a
Substituted Limited Partner shall not give rise to any cause of action
against the Partnership or the General Partner. Subject to the foregoing,
an Assignee shall not be admitted as a Substituted Limited Partner until
and unless it furnishes to the General Partner (i) evidence of acceptance,
in form and substance satisfactory to the General Partner, of all the
terms, conditions and applicable obligations of this Agreement, (ii) a
counterpart signature page to this Agreement executed by such Assignee and
(iii) such other documents and instruments as may be required or
advisable, in the Sole and Absolute Discretion of the General Partner, to
effect such Assignee's admission as a Substituted Limited Partner. It is
specifically agreed that iStar and any assignee, transferee or designee of
iStar in connection with a Lender Transfer shall be admitted as a
Substituted Limited Partner notwithstanding any failure to satisfy any of
the representations and warranties contained Section 3.4.
45
(b) Concurrently with, and as evidence of, the admission of a
Substituted Limited Partner, the General Partner shall (i) upon delivery
of the transferring Limited Partner's transferred Partnership Unit
Certificates, issue to the Person being admitted as a Substituted Limited
Partner one or more Partnership Unit Certificates to evidence the
Partnership Interest being acquired by such Person and (ii) amend Exhibit
A and the books and records of the Partnership to reflect the name,
address and number of Partnership Units of such Substituted Limited
Partner and to eliminate or adjust, if necessary, the name, address and
number of Partnership Units of the predecessor of such Substituted Limited
Partner.
(c) A transferee who has been admitted as a Substituted Limited
Partner in accordance with this Article 11 shall have all the rights and
powers and be subject to all the restrictions and liabilities of a Limited
Partner under this Agreement.
Section 11.5 Assignees. If the General Partner, in its Sole and Absolute
Discretion, does not consent in writing to the admission of any transferee of a
Limited Partner as a Substituted Limited Partner, as described in Section 11.4
hereof, such transferee shall be considered an Assignee for purposes of this
Agreement. An Assignee shall be entitled to all the rights of an assignee of a
limited partnership interest under the Act, including the right to receive
distributions from the Partnership and the share of Net Income, Net Losses and
other items of income, gain, loss, deduction and credit of the Partnership
attributable to the Partnership Units assigned to such transferee and the rights
to Transfer the Partnership Units provided in this Article 11, but shall not be
deemed to be a holder of Partnership Units for any other purpose under this
Agreement and shall not be entitled to effect an Approval with respect to such
Partnership Units on any matter presented to the Limited Partners for Approval
(such right to Approve, to the extent provided in this Agreement or under the
Act, fully remaining with the transferor Limited Partner). In the event that any
such transferee desires to make a further assignment of any such Partnership
Units, such transferee shall be subject to all the provisions of this Article 11
to the same extent and in the same manner as any Limited Partner desiring to
make an assignment of Partnership Units.
Section 11.6 General Provisions.
(a) No Limited Partner may withdraw from the Partnership other than
(i) as a result of a permitted Transfer of all of such Limited Partner's
Partnership Units in accordance with this Article 11, with respect to
which the transferee becomes a Substituted Limited Partner or (ii)
pursuant to a redemption (or acquisition by the General Partner or any of
its Affiliates) of all of its Partnership Units pursuant to a redemption
or acquisition under Article 15 hereof.
(b) Any Limited Partner who shall Transfer all of its Partnership
Units in a Transfer (i) permitted pursuant to this Article 11 where such
transferee was admitted as a Substituted Limited Partner, (ii) pursuant to
a redemption of all of its Partnership Units pursuant to Article 15 hereof
or (iii) to a General Partner or any of its Affiliates pursuant to Article
15 hereof, shall cease to be a Limited Partner.
(c) If any Partnership Unit is Transferred in compliance with the
provisions of this Article 11 or redeemed by the Partnership or acquired
by the General Partner pursuant to Article 15 hereof on any day other than
the first day of a Partnership Year, then Net Income, Net Losses, each
item thereof and all other items of income, gain, loss, deduction and
credit attributable to such Partnership Unit for such Partnership Year
shall be allocated to the transferor Partner and, in the case of a
Transfer or assignment other than a redemption, to the transferee Partner,
by taking into account their varying interests during the Partnership Year
in accordance with Code Section 706(d), using the "interim closing of the
books" method or another permissible method selected by the General
Partner. Solely for purposes of making such allocations, each of such
items for the calendar month in which a Transfer occurs shall be allocated
to the transferee Partner and none of such items for the calendar month in
which a Transfer or a redemption occurs shall be allocated to the
transferor Partner if such Transfer occurs on or before the fifteenth
(15th) day of the month, otherwise such items shall be allocated to the
transferor. All Distributions made pursuant to Section 5.1 hereof
attributable to such Partnership Unit with respect to which the
Partnership Record Date is before the date of such Transfer, assignment or
redemption shall be made to the transferor Partner and, in the case of a
Transfer other than a redemption made under Article 15, all Distributions
made pursuant to Section 5.1 thereafter attributable to such Partnership
Unit shall be made to the transferee Partner.
46
(d) In addition to any other restrictions on Transfer herein
contained, in no event may any Transfer or assignment of a Partnership
Interest by any Partner be made (i) to any Person who lacks the legal
right, power or capacity to own a Partnership Interest; (ii) in violation
of applicable law; (iii) of any component portion of a Partnership
Interest, such as the Capital Account, or rights to distributions,
separate and apart from all other components of a Partnership Interest;
(iv) if such Transfer would, in the opinion of counsel to the Partnership
or the General Partner, cause a termination of the Partnership for Federal
or state income tax purposes; (v) if such Transfer would, in the opinion
of legal counsel to the Partnership, cause the Partnership to cease to be
classified as a partnership for Federal income tax purposes; (vi) if such
Transfer would cause the Partnership to become, with respect to any
employee benefit plan subject to Title I of ERISA, a "party-in-interest"
(as defined in ERISA Section 3(14)) or a "disqualified person" (as defined
in Code Section 4975(c)); (vii) if such Transfer would, in the opinion of
legal counsel to the Partnership, cause any portion of the assets of the
Partnership to constitute assets of any employee benefit plan pursuant to
Department of Labor Regulations Section 2510.2-101; (viii) if such
Transfer requires the registration of such Partnership Interest pursuant
to any applicable Federal or state securities laws; (ix) if such Transfer
causes the Partnership to become a "publicly traded partnership," as such
term is defined in Code Section 469(k)(2) or Code Section 7704(b); (x) if
such Transfer would cause the Partnership to have more than one hundred
(100) partners for tax purposes (including as partners those persons
indirectly owning an interest in the Partnership through a partnership,
limited liability company, subchapter S corporation or grantor trust);
(xi) if such Transfer causes the Partnership (as opposed to the General
Partner) to become a reporting company under the Exchange Act; or (xii) if
such Transfer subjects the Partnership to regulation under the Investment
Company Act of 1940, the Investment Advisors Act of 1940 or ERISA, each as
amended; provided, however, that nothing in this Section 11.6(d) shall
operate to prevent a Transfer to iStar or any assignee, transferee or
designee of Star in connection with a Lender Transfer.
(e) Except for a Transfer to iStar or any of its assignees,
transferees or designees in connection with a Lender Transfer, which
Transfer shall be effective immediately, Transfers pursuant to this
Article 11 may only be made on the first day of a fiscal quarter of the
Partnership, unless the General Partner otherwise agrees.
Section 11.7 Article 8 Opt-In Provisions.
(a) Each of the ▇▇▇▇▇▇▇ Preferred Units shall be personal property
for all purposes and shall constitute a "SECURITY" within the meaning of,
and governed by, (i) Article 8 of the Delaware Uniform Commercial Code
("ARTICLE 8") and (ii) Article 8 of the Uniform Commercial Code of any
other applicable jurisdiction that now or hereafter substantially includes
the 1994 revisions to Article 8 thereof as adopted by the American Law
Institute and the National Conference of Commissioners on Uniform State
Laws and approved by the American Bar Association on February 14, 1995.
(b) The Partnership shall maintain books for the purpose of
registering the transfer of any of the ▇▇▇▇▇▇▇ Preferred Units. No
transfer of the ▇▇▇▇▇▇▇ Preferred Units shall be effective until the
transfer of the ▇▇▇▇▇▇▇ Preferred Units is registered upon the books
maintained for that purpose by or on behalf of the Partnership.
(c) Upon the transfer by the ▇▇▇▇▇▇▇ Limited Partners in accordance
with the provisions of this Agreement of any or all of the ▇▇▇▇▇▇▇
Preferred Units, the transferee shall deliver the Partnership Units
Certificate(s) evidencing such ▇▇▇▇▇▇▇ Preferred Units to the Partnership
for cancellation (indorsed on the reverse side or on a separate document),
and, upon the Partnership's registering the transfer on books maintained
for that purpose, the Partnership shall issue one or more Partnership Unit
Certificates to the transferee for such ▇▇▇▇▇▇▇ Preferred Units being
transferred and, if applicable, cause to be issued to the ▇▇▇▇▇▇▇ Limited
Partners one or more Partnership Unit Certificates representing ▇▇▇▇▇▇▇
Preferred Units that were represented by the canceled Partnership Unit
Certificate and that are not being transferred; provided, however, the
Partnership shall have no duty to register the transfer unless the
requirements of Section 8-401 of Article 8 are satisfied.
47
(d) Notwithstanding any provision of the Agreement to the contrary,
the provisions of this Agreement relating to the validity and transfers of
▇▇▇▇▇▇▇ Preferred Units, including restrictions on transfers and
registration of transfers (collectively, the "TRANSFER PROVISIONS"), shall
be construed, to the extent related to the ▇▇▇▇▇▇▇ Preferred Units, to the
maximum extent possible to comply with Article 8. If, nevertheless, it
shall be determined by a court of competent jurisdiction that any
provision or wording of the Transfer Provisions shall be invalid or
unenforceable under Article 8, such invalidity shall not invalidate all of
the Transfer Provisions. In that case, the Transfer Provisions shall be
construed to limit any term or provision so as to make it valid or
enforceable within the requirements of Article 8, and, in the event such
term or provision cannot be so limited, the Transfer Provisions shall be
construed to omit such invalid or unenforceable provision.
(e) At the request of the ▇▇▇▇▇▇▇ Limited Partners, any Partnership
Unit Certificate evidencing the ▇▇▇▇▇▇▇ Preferred Units shall reflect that
the ▇▇▇▇▇▇▇ Preferred Units have been pledged as collateral for the JQH
Line of Credit. Such Partnership Unit Certificates shall expressly provide
that each of the ▇▇▇▇▇▇▇ Preferred Units is a "security" as defined in and
governed by Article 8.
(f) A transfer of the ▇▇▇▇▇▇▇ Preferred Units may be registered as
provided in Section 8-102(a)(13) of Article 8.
ARTICLE 12
ADMISSION OF PARTNERS
Section 12.1 Admission of Successor General Partner and Transferees of
General Partner's Partnership Interests.
(a) A successor to all of the General Partner's General Partner
Interest pursuant to Section 11.2(a) hereof who is proposed to be admitted
as a successor General Partner shall be admitted to the Partnership as the
General Partner, effective immediately upon such Transfer. Any such
successor shall carry on the business of the Partnership without
dissolution. In each case, the admission shall be subject to the successor
General Partner executing and delivering to the Partnership an acceptance
of all of the terms and conditions of this Agreement, the Development
Restriction Agreement, dated as of the date hereof, by and among the
General Partner, the Partnership and the other signatories thereto and
such other documents or instruments as may be required to effect the
successor General Partner's admission. Any such successor General Partner
shall, by way of executing and delivering a signature page to this
Agreement, acknowledge and accept the Affiliate Transaction Agreements.
(b) A transferee of less than all of the General Partner's
Partnership Interests pursuant to Section 11.2(a) hereof shall be admitted
to the Partnership as an Additional Limited Partner, upon furnishing to
the General Partner (i) evidence of acceptance, in form and substance
satisfactory to the General Partner, of all of the terms and conditions of
this Agreement, including, without limitation, the power of attorney
granted in Section 2.4 hereof, (ii) a counterpart signature page to this
Agreement executed by such Person and (iii) such other documents or
instruments as may be required in the Sole and Absolute Discretion of the
General Partner in order to effect such Person's admission as an
Additional Limited Partner. Concurrently with, and as evidence of, the
admission of such transferee as an Additional Limited Partner, the General
Partner shall (a) issue to such Additional Limited Partner Partnership
Unit Certificates to evidence the Partnership Interest of such Additional
Limited Partner and (b) amend Exhibit A and the books and records of the
Partnership to reflect the name, address and number of Partnership Units
of such Additional Limited Partner and to adjust accordingly the number of
Partnership Units of the General Partner.
Section 12.2 Admission of Additional Limited Partners.
(a) Subject to Section 4.2(c), any Person (other than an existing
Partner) who makes a Capital Contribution to the Partnership in exchange
for Partnership Units and in accordance with this Agreement shall be
issued Partnership Unit Certificates and be admitted to the Partnership as
an Additional Limited Partner only upon furnishing to the General Partner
(i) evidence of acceptance, in form and
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substance satisfactory to the General Partner, of all of the terms and
conditions of this Agreement, including, without limitation, the power of
attorney granted in Section 2.4 hereof, (ii) a counterpart signature page
to this Agreement executed by such Person and (iii) such other documents
or instruments as may be required in the Sole and Absolute Discretion of
the General Partner in order to effect such Person's admission as an
Additional Limited Partner. Concurrently with, and as evidence of, the
admission of an Additional Limited Partner, the General Partner shall (a)
issue to such Additional Limited Partner Partnership Unit Certificates to
evidence the Partnership Interest of such Additional Limited Partner and
(b) amend Exhibit A and the books and records of the Partnership to
reflect the name, address and number of Partnership Units of such
Additional Limited Partner.
(b) Notwithstanding anything to the contrary in this Section 12.2,
no Person shall be admitted as an Additional Limited Partner without the
written consent of the General Partner, which consent may be withheld in
its Sole and Absolute Discretion. The admission of any Person as an
Additional Limited Partner shall become effective on the date upon which
the name of such Person is recorded on the books and records of the
Partnership, following the written consent of the General Partner to such
admission and the satisfaction of all the conditions set forth in Section
12.2(a).
(c) If any Additional Limited Partner is admitted to the Partnership
on any day other than the first day of a Partnership Year, then Net
Income, Net Losses, each item thereof and all other items of income, gain,
loss, deduction and credit allocable among Holders for such Partnership
Year shall be allocated among such Additional Limited Partner and all
other Holders by taking into account their varying interests during the
Partnership Year in accordance with Code Section 706(d), using the
"interim closing of the books" method or another permissible method
selected by the General Partner. Solely for purposes of making such
allocations, each of such items for the calendar month in which an
admission of any Additional Limited Partner occurs shall be allocated
among all the Holders including such Additional Limited Partner, in
accordance with the principles described in Section 11.6(c) hereof. All
Distributions made pursuant to Section 5.1 with respect to which the
Partnership Record Date is before the date of such admission shall be made
solely to Partners and Assignees other than the Additional Limited
Partner, and all Distributions made pursuant to Section 5.1 thereafter
shall be made to all the Partners and Assignees including such Additional
Limited Partner.
Section 12.3 Amendment of Agreement and Certificate of Limited
Partnership. Subject to Section 4.2(c) and Section 14.2, for the admission to
the Partnership of any Partner, the General Partner shall take all steps
necessary and appropriate under the Act to amend the records of the Partnership
and, if necessary, to prepare as soon as practical an amendment of this
Agreement (including an amendment of Exhibit A) and, if required by law, shall
prepare and file an amendment to the Certificate and may for this purpose
exercise the power of attorney granted pursuant to Section 2.4 hereof.
Section 12.4 Limit on Number of Partners. Unless otherwise permitted by
the General Partner in its Sole and Absolute Discretion, no Person shall be
admitted to the Partnership as an Additional Limited Partner if the effect of
such admission would be to cause the Partnership to have a number of Partners
(including as Partners for this purpose those Persons indirectly owning an
interest in the Partnership through another partnership, a limited liability
company, a subchapter S corporation or a grantor trust) that would cause the
Partnership to become a reporting company under the Exchange Act.
Section 12.5 Admission. A Person shall be admitted to the Partnership as a
limited partner of the Partnership or a general partner of the Partnership only
upon strict compliance, and not upon substantial compliance, with the
requirements set forth in this Agreement for admission to the Partnership as a
Limited Partner or a General Partner.
ARTICLE 13
DISSOLUTION, LIQUIDATION AND TERMINATION
Section 13.1 Dissolution. The Partnership shall not be dissolved by the
admission of Substituted Limited Partners or Additional Limited Partners, or by
the admission of a successor General Partner in accordance with the terms of
this Agreement. Upon the withdrawal of the General Partner, any successor
General Partner shall
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continue the business of the Partnership without dissolution. Notwithstanding
the foregoing, the Partnership shall dissolve, and its affairs shall be wound
up, upon the first to occur of any of the following (each a "LIQUIDATING
EVENT"):
(a) an event of withdrawal, as defined in the Act (including,
without limitation, bankruptcy), of the General Partner unless, within
ninety (90) days after the withdrawal, a Majority in Interest of the
Partners agree in writing, in their Sole and Absolute Discretion, to
continue the business of the Partnership and to the appointment, effective
as of the date of withdrawal, of a successor General Partner;
(b) after the death of JQH, an election to dissolve the Partnership
made by the General Partner in its Sole and Absolute Discretion, with or
without the Approval of the Partners;
(c) the Liquidation Commencement Date; and
(d) entry of a decree of judicial dissolution of the Partnership
pursuant to the provisions of the Act.
Section 13.2 Winding Up.
(a) Upon the occurrence of a Liquidating Event, the Partnership
shall continue solely for the purposes of winding up its affairs in an
orderly manner, liquidating its assets and satisfying the claims of its
creditors and the Holders. After the occurrence of a Liquidating Event, no
Holder shall take any action that is inconsistent with, or not necessary
to or appropriate for, the winding up of the Partnership's business and
affairs. The General Partner (or, in the event that there is no remaining
General Partner or the General Partner has dissolved, become bankrupt
within the meaning of the Act or ceased to operate, any Person elected by
a Majority in Interest of the Partners (the General Partner or such other
Person being referred to herein as the "LIQUIDATOR")) shall be responsible
for overseeing the winding up and dissolution of the Partnership and shall
take full account of the Partnership's liabilities and Properties. The
proceeds from the liquidation shall be applied and distributed in the
following order:
(i) First, to the satisfaction of all of the Partnership's
debts and liabilities to creditors (whether by payment or the making
of reasonable provision for payment thereof) and the expenses of
liquidation;
(ii) Second, for the setting up of any reserves which the
General Partner may deem reasonably necessary for any contingent or
unforeseen liabilities or obligations of the Partnership in
accordance with applicable law;
(iii) Third, to the Holders of the ▇▇▇▇▇▇▇ Preferred Units,
pro rata among them based on their relative Percentage Interests in
the amount of the Preferred Redemption Price; and
(iv) The balance to all Holders of Partnership Common Units in
proportion to the positive balances, if any, in their respective
Capital Accounts, after giving effect to all contributions,
distributions and allocations for all periods.
(b) Notwithstanding the provisions of Section 13.2(a) hereof that
require liquidation of the assets of the Partnership, but subject to the
order of priorities set forth therein and to Section 13.7, if prior to or
upon dissolution of the Partnership, the Liquidator determines that an
immediate sale of part or all of the Partnership's assets would be
impractical or would cause undue loss to the Holders, the Liquidator may,
in its Sole and Absolute Discretion, defer for a reasonable time the
liquidation of any assets except those necessary to satisfy liabilities of
the Partnership (including to those Holders as creditors) and/or
distribute to the Holders, in lieu of cash, as tenants in common and in
accordance with the provisions of Section 13.2(a) hereof, undivided
interests in such Partnership assets as the Liquidator deems not suitable
for liquidation. Any such distributions in kind shall be made only if, in
the good faith judgment of the Liquidator, such distributions in kind are
in the best interest of the Holders, and shall be subject to such
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conditions relating to the disposition and management of such properties
as the Liquidator deems reasonable and equitable and to any agreements
governing the operation of such properties at such time. The Liquidator
shall determine the fair market value of any property distributed in kind
using such reasonable method of valuation as it may adopt. In the event of
any distribution of property in kind hereunder, the Partnership shall
treat such property as having been sold at its fair market value, shall
allocate the gain or loss recognized as a result of such deemed sale in
accordance with Section 6.2 hereof, and shall take such allocations into
account in determining Capital Account balances for purposes of this
Section 13.2(a).
(c) In the Sole and Absolute Discretion of the General Partner or
the Liquidator, a pro rata portion of the distributions that would
otherwise be made to the Holders pursuant to this Article 13 may be:
(i) distributed to a trust established for the benefit of the
General Partner and the Holders for the purpose of liquidating
Partnership assets, collecting amounts owed to the Partnership, and
paying any contingent or unforeseen liabilities or obligations of
the Partnership. The assets of any such trust shall be distributed
to the Holders, from time to time, in the reasonable discretion of
the Liquidator, in the same proportions and amounts as would
otherwise have been distributed to the Holders pursuant to this
Agreement; or
(ii) withheld or escrowed to reflect the unrealized portion of
any installment obligations owed to the Partnership by such Holders,
provided that such withheld or escrowed amounts shall be distributed
to the Holders in the manner and order of priority set forth in
Section 13.2(a) hereof as soon as practicable.
(d) If any Holder has a deficit balance in its Capital Account
(after giving effect to all contributions, distributions and allocations
for all taxable years, including the year during which such liquidation
occurs), such Holder shall have no obligation to make any contribution to
the capital of the Partnership with respect to such deficit, and such
deficit shall not be considered a debt owed to the Partnership or to any
other Person for any purpose whatsoever.
Section 13.3 Deemed Contribution and Distribution. Notwithstanding any
other provision of this Article 13, in the event that the Partnership is
liquidated within the meaning of Regulations Section 1.704-1(b)(2)(ii)(g), but
no Liquidating Event has occurred, the Partnership's Property shall not be
liquidated, the Partnership's liabilities shall not be paid or discharged and
the Partnership's affairs shall not be wound up. Instead, for Federal income tax
purposes the Partnership shall be deemed to have contributed all of its assets
and liabilities to a new partnership in exchange for an interest in the new
partnership; and immediately thereafter, distributed Partnership Units to the
Partners in the new partnership with such Units having the same rights and
interests as are set forth in this Agreement (taking into account the effects of
any such contribution), and the new partnership is deemed to continue the
business of the Partnership. Nothing in this Section 13.3 shall be deemed to
have constituted any Assignee as a Substituted Limited Partner without
compliance with the provisions of Section 11.4 or Section 13.3 hereof.
Section 13.4 Rights of Holders. Except as otherwise provided in this
Agreement, (a) each Holder shall look solely to the assets of the Partnership
for the return of its Capital Contribution, (b) no Holder shall have the right
or power to demand or receive property other than cash from the Partnership and
(c) no Holder shall have priority over any other Holder as to the return of its
Capital Contributions, distributions or allocations.
Section 13.5 Notice of Dissolution. In the event that a Liquidating Event
occurs or an event occurs that would, but for an election or objection by one or
more Partners pursuant to Section 13.1 hereof, result in a dissolution of the
Partnership, the General Partner shall, within thirty (30) days thereafter,
provide written notice thereof to each of the Holders and, in the General
Partner's Sole and Absolute Discretion or as required by the Act, to all other
parties with whom the Partnership regularly conducts business (as determined in
the Sole and Absolute Discretion of the General Partner), and the General
Partner may, or, if required by the Act, shall, publish notice thereof in a
newspaper of general circulation in each place in which the Partnership
regularly conducts business (as determined in the Sole and Absolute Discretion
of the General Partner).
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Section 13.6 Cancellation of Certificate of Limited Partnership. Upon the
completion of the liquidation and distribution of the Partnership Property as
provided in Section 13.2 hereof, the Partnership shall be terminated, a
certificate of cancellation shall be filed with the State of Delaware, all
qualifications of the Partnership as a foreign limited partnership or
association in jurisdictions other than the State of Delaware shall be
cancelled, and such other actions as may be necessary to terminate the
Partnership shall be taken.
Section 13.7 Reasonable Time for Winding-Up. Subject to, and in reasonable
anticipation of timely satisfaction of the obligations under, Article 15, a
reasonable time shall be allowed for the orderly winding-up of the business and
affairs of the Partnership and the liquidation of its assets pursuant to Section
13.2 hereof, in order to minimize any losses otherwise attendant upon such
winding-up, and the provisions of this Agreement shall remain in effect between
and among the Partners during the period of liquidation, it being understood and
agreed that in the case of a liquidation undertaken upon the exercise of the
Liquidation Right, no Partnership Property shall have to be sold prior to the
Liquidation Completion Deadline.
ARTICLE 14
PROCEDURES FOR ACTIONS AND CONSENTS
OF PARTNERS; AMENDMENTS; MEETINGS
Section 14.1 Procedures for Actions and Approval of Partners. The actions
requiring the consent, approval or vote of any of the Partners (other than the
Consent of the ▇▇▇▇▇▇▇ Limited Partners) pursuant to this Agreement, including
Section 7.3 hereof, or otherwise pursuant to applicable law, are subject to the
procedures set forth in this Article 14.
Section 14.2 Amendments. Amendments to this Agreement may be proposed by
either the General Partner or the ▇▇▇▇▇▇▇ Limited Partners. Following such
proposal, the General Partner shall submit to the Partners any proposed
amendment that, pursuant to the terms of this Agreement, requires the Majority
Approval of the Partners holding Partnership Interests entitled to vote at the
meeting. The General Partner shall seek the written Majority Approval of the
Partners on any such proposed amendment or shall call a meeting to vote thereon
and to transact any other business that the General Partner may deem
appropriate. For purposes of obtaining a written Approval, the General Partner
may require a response within a reasonable specified time, but not less than
fifteen (15) days after all information material to the proposed amendment is
provided to all Partners entitled to Approve any such amendment, and failure to
respond in such time period shall constitute an Approval that is consistent with
the General Partner's recommendation with respect to the proposal; provided,
however, that an action shall become effective at such time as requisite
Approvals are received even prior to such specified time. No power of attorney
or other authority shall be sufficient authorization without the required
Approval. Notwithstanding anything herein to the contrary, without the Approval
of any of the Partners, upon the written request of the ▇▇▇▇▇▇▇ Limited
Partners, the General Partner shall, and shall be entitled to, amend Section 4.5
hereof in any manner requested by the ▇▇▇▇▇▇▇ Representative with the effect of
limiting (or eliminating) the obligations of JQH and/or ▇▇▇▇▇▇▇, Inc. to make
Capital Contributions thereunder. All amendments to this Agreement are
specifically subject to the consent requirements of Section 7.3(e).
Section 14.3 Meetings of the Partners.
(a) Meetings of the Partners may be called only by the General
Partner. The call shall state the nature of the business to be transacted.
Notice of any such meeting shall be given to all Partners entitled to act
at the meeting not less than ten (10) days nor more than thirty (30) days
prior to the date of such meeting. Partners may vote in person or by proxy
at such meeting. Whenever the Approval of Partners is permitted or
required under this Agreement, such Approval may be given at a meeting of
Partners or may be given in accordance with the procedure prescribed in
Section 14.3(b) hereof.
(b) Any action required or permitted to be taken at a meeting of the
Partners may be taken without a meeting if a written consent setting forth
the action so taken is signed by the holders of a Majority in Interest of
the Partners (or such other percentage as is expressly required by this
Agreement for the action in question) entitled to act at the meeting. Such
written consent may be in one instrument or in several instruments, and
shall have the same force and effect as a vote of the holders of a
Majority in Interest of the Partners (or such other percentage as is
expressly required by this Agreement) entitled to act
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at the meeting. Such written consent shall be filed with the General
Partner. An action so taken shall be deemed to have been taken at a
meeting held on the effective date so certified.
(c) Each Partner entitled to act at the meeting may authorize any
Person or Persons to act for it by proxy on all matters in which a Partner
is entitled to participate, including waiving notice of any meeting, or
voting or participating at a meeting. Every proxy must be signed by the
Partner or its attorney-in-fact. No proxy shall be valid after the
expiration of eleven (11) months from the date thereof unless otherwise
provided in the proxy (or there is receipt of a proxy authorizing a later
date). Every proxy shall be revocable at the pleasure of the Partner
executing it, such revocation to be effective upon the Partnership's
receipt of written notice of such revocation from the Partner executing
such proxy.
(d) Each meeting of Partners shall be conducted by the General
Partner pursuant to such rules for the conduct of the meeting as the
General Partner or such other Person deems appropriate in its Sole and
Absolute Discretion.
ARTICLE 15
RIGHT OF LIQUIDATION; REDEMPTION OF PREFERRED UNITS
Section 15.1 Right to Request Liquidation.
(a) The ▇▇▇▇▇▇▇ Limited Partners, acting by majority consent of the
▇▇▇▇▇▇▇ Limited Partners, shall have the right to require the Partnership
to liquidate its assets and distribute the net proceeds thereof to the
Partners in accordance with Section 13.2 (the "LIQUIDATION RIGHT") by
providing written notice to the Partnership (the "LIQUIDATION NOTICE") at
any time (i) on or after the date that is six months before the Calendar
Liquidation Notice Date but before the Calendar Liquidation Notice Date or
(ii) on or after the JQH Liquidation Notice Date.
(b) Unless the Partnership has redeemed all outstanding ▇▇▇▇▇▇▇
Preferred Units pursuant to the Partnership Redemption Right under Section
15.2, the Partnership shall be required to commence liquidating its assets
in accordance with Section 13.2 on or before the date that is 18 months
following the Liquidation Notice Date (the "LIQUIDATION COMMENCEMENT
DATE"), pursue such liquidation thereafter and complete the liquidation
process within the later to occur of (i) the first anniversary of the
Liquidation Commencement Date and (ii) one month after the tenth
anniversary of the Effective Date (the later to occur of the foregoing,
referred to herein as the "LIQUIDATION COMPLETION DEADLINE"), provided
that if the Partnership has redeemed all outstanding ▇▇▇▇▇▇▇ Preferred
Units pursuant to the Partnership Redemption Right on or prior to the
Liquidation Completion Deadline, then the Partnership shall not be
obligated in any way to complete the liquidation process. Notwithstanding
the foregoing, at the election of the General Partner, the General Partner
shall have the right, in lieu of the liquidation contemplated by this
Section 15.1(b), to purchase all outstanding ▇▇▇▇▇▇▇ Preferred Units on or
prior to the Liquidation Completion Deadline at the Preferred Redemption
Price, payable in immediately available funds.
Section 15.2 Redemption by the Partnership.
(a) The Partnership shall have the right to redeem all (but not less
than all) of the outstanding ▇▇▇▇▇▇▇ Preferred Units (the "PARTNERSHIP
REDEMPTION RIGHT") at any time on or after the Partnership Redemption Date
at the Preferred Redemption Price by providing written notice to the
▇▇▇▇▇▇▇ Limited Partners (the "PARTNERSHIP REDEMPTION NOTICE"). Such
Partnership Redemption Notice shall be delivered at least 30 days but not
more than 150 days prior to the designated date of redemption and include
(i) such date of redemption and (ii) the Redemption Price of all of the
outstanding ▇▇▇▇▇▇▇ Preferred Units.
(b) On the designated date of redemption, the Partnership shall (i)
redeem all of the outstanding ▇▇▇▇▇▇▇ Preferred Units and (ii) pay to the
Holders of ▇▇▇▇▇▇▇ Preferred Units the Preferred Redemption Price, in
immediately available funds. Upon receipt of such funds, the ▇▇▇▇▇▇▇
Limited Partners shall cease to be Partners of the Partnership.
Notwithstanding the foregoing, at the election of the General Partner, the
General Partner or any of its Affiliates shall have the right, in lieu of
the
53
redemption by the Partnership of such ▇▇▇▇▇▇▇ Preferred Units, to purchase
all such ▇▇▇▇▇▇▇ Preferred Units on the designated date of redemption at
the same price, payable in immediately available funds.
Section 15.3 Early Liquidity Right.
(a) Provided that the Partnership Redemption Right has not been
exercised pursuant to Section 15.2 and no LOC Default has occurred and
JQH's death occurs prior to seven years and one month after the Effective
Date, at any time after the later to occur of (i) the first anniversary of
the Effective Date and (ii) the first Business Day following the death of
JQH, the JQH Trust shall have the right, subject to Section 15.3(b), to
require the Partnership to purchase all of the Early Liquidity Units (the
"EARLY LIQUIDITY RIGHT") by providing written notice to the Partnership
(the "EARLY LIQUIDITY NOTICE"). Such Early Liquidity Notice shall be
delivered at least 24 months but not more than 26 months prior to the
designated date of purchase and include the date on which such purchase
shall occur (the date so designated, referred to herein as the "EARLY
LIQUIDITY DUE DATE"). The Early Liquidity Right may not be exercised more
than once.
(b) The Partnership shall be required to purchase the Early
Liquidity Units from the JQH Trust at the Early Liquidity Price, payable
in immediately available funds, on the Early Liquidity Due Date; provided
that, if such purchase would be restricted under any financing agreement
to which the Partnership or any of its Subsidiaries is a party, the
General Partner and, if any, all of the other Holders of Partnership Units
(other than the ▇▇▇▇▇▇▇ Preferred Units) (collectively, the "REQUIRED
HOLDERS") shall be required to purchase the Early Liquidity Units from the
JQH Trust in accordance with Section 15.3(c) as Distributions are made
from time to time after the Early Liquidity Due Date, but in no event
later than the earlier to occur of (i) the termination of such
restrictions and (ii) the first Business Day after the 91st day after May
15, 2012, payable on the date of such purchase in immediately available
funds. The date on which all of the Early Liquidity Units are actually
purchased is referred to herein as the "EARLY LIQUIDITY CLOSING DATE". To
the extent that the Early Liquidity Closing Date occurs after the first
anniversary of the Early Liquidity Due Date, the Remaining Early Liquidity
Price shall bear interest at 10% per annum from the first anniversary of
the Early Liquidity Due Date until the Early Liquidity Closing Date. Any
such interest shall be payable to the JQH Trust by the Required Holders or
the Partnership in arrears on the Early Liquidity Closing Date.
(c) In the event that the Early Liquidity Units are not purchased in
full on or prior to the Early Liquidity Due Date, (i) the General Partner
shall make good faith efforts to cause the Partnership to make
Distributions in accordance with Section 5.1 (subject to its obligations
under this Agreement and to the reasonable business needs and obligations
of the Partnership), and (ii) the Required Holders shall immediately use
all of the net proceeds from such Distributions to purchase the Early
Liquidity Units and to pay all interest accrued thereon, until all of the
Early Liquidity Units (including all interest accrued thereon) have been
purchased in full.
ARTICLE 16
GENERAL PROVISIONS
Section 16.1 Addresses and Notice. Any notice, demand, request or report
required or permitted to be given or made to a Partner or Assignee under this
Agreement shall be in writing and shall be deemed given or made when delivered
in person or when sent by facsimile transmission (electronically confirmed),
mailed by first class registered or certified mail, return receipt requested and
postage prepaid, or sent by Federal Express or other overnight courier of
national reputation, to the Partner, or Assignee at the address set forth in
Exhibit A or such other address of which the Partner shall notify the General
Partner in writing.
Section 16.2 Titles and Captions. All Article or Section titles or
captions in this Agreement are for convenience only. They shall not be deemed
part of this Agreement and in no way define, limit, extend or describe the scope
or intent of any provisions hereof. Except as specifically provided otherwise,
references to "Articles" or "Sections" are to Articles and Sections of this
Agreement.
Section 16.3 Interpretation. Whenever the context may require, any
pronouns used in this Agreement shall include the corresponding masculine,
feminine or neuter forms, and the singular form of nouns, pronouns and
54
verbs shall include the plural and vice versa. The parties to this Agreement
have been represented by counsel and have participated jointly in the
negotiation and drafting of this Agreement. In the event any ambiguity or
question of interpretation arises, this Agreement and the other documents and
instruments executed in connection with this Agreement shall be construed as if
drafted jointly, and no presumption or burden of proof shall arise favoring or
disfavoring any party by virtue of the authorship of any provision of this
Agreement or such other documents and instruments. The language used in this
Agreement shall be deemed to be the language chosen by the parties hereto to
express their mutual intent, and no rule of strict construction shall be applied
against any Person. When the words "includes" or "including" are used in this
Agreement, they shall be deemed to be followed by the words "without limitation"
unless already so followed. Any reference to any particular Code section or any
other law will be interpreted to include any revision of or successor to that
section regardless of how it is numbered or classified.
Section 16.4 Further Action. The parties shall execute and deliver all
documents, provide all information and take or refrain from taking action as may
be necessary or appropriate to achieve the purposes of this Agreement.
Section 16.5 Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective heirs,
executors, administrators, legatees, successors, legal representatives and
permitted assigns by operation of law or otherwise.
Section 16.6 Waiver.
(a) No failure by any party to insist upon the strict performance of
any covenant, duty, agreement or condition of this Agreement or to
exercise any right or remedy consequent upon a breach thereof shall
constitute waiver of any such breach or any other covenant, duty,
agreement or condition.
(b) The restrictions, conditions and other limitations on the rights
and benefits of the Limited Partners contained in this Agreement, and the
duties, covenants and other requirements of performance or notice by the
Limited Partners, are for the benefit of the Partnership and, except for
an obligation to pay money to the Partnership, may be waived or
relinquished by the General Partner, in its Sole and Absolute Discretion,
on behalf of the Partnership in one or more instances from time to time
and at any time; provided, however, that any such waiver or relinquishment
may not be made if it would have the effect of (i) creating liability for
any other Limited Partner (ii) causing the Partnership to cease to qualify
as a limited partnership, (iii) reducing the amount of cash otherwise
distributable to the Limited Partners, (iv) resulting in the
classification of the Partnership as an association or publicly traded
partnership taxable as a corporation or (v) violating the Securities Act,
the Exchange Act or any state "blue sky" or other securities laws.
Section 16.7 Counterparts. This Agreement may be executed in counterparts,
all of which together shall constitute one agreement binding on all the parties
hereto, notwithstanding that all such parties are not signatories to the
original or the same counterpart. Each party shall become bound by this
Agreement immediately upon affixing its signature hereto.
Section 16.8 Applicable Law. This Agreement shall be construed and
enforced in accordance with and governed by the laws of the State of Delaware,
without regard to the principles of conflicts of law. In the event of a conflict
between any provision of this Agreement and any non-mandatory provision of the
Act, the provisions of this Agreement shall control and take precedence.
Section 16.9 Entire Agreement. This Agreement, together with the
Transaction Agreement and the Affiliate Transaction Agreements, contains all of
the understandings and agreements among the Partners and the Partnership with
respect to the subject matter of this Agreement and the rights, interests and
obligations of the Partners with respect to the Partnership and supersedes all
prior understandings, agreements, or representations by or among the Partnership
and the Partners, whether written or oral, that may have related in any way to
the subject matter hereof.
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Section 16.10 Invalidity of Provisions. If any provision of this Agreement
is or becomes invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein shall
not be affected thereby.
Section 16.11 No Partition. No Partner nor any successor-in-interest to a
Partner shall have the right while this Agreement remains in effect to have any
property of the Partnership partitioned, or to file a complaint or institute any
proceeding at law or in equity to have such property of the Partnership
partitioned, and each Partner, on behalf of itself and its successors and
assigns hereby waives any such right. It is the intention of the Partners that
the rights of the parties hereto and their successors-in-interest to Partnership
property, as among themselves, shall be governed by the terms of this Agreement,
and that the rights of the Partners and their respective successors-in-interest
shall be subject to the limitations and restrictions as set forth in this
Agreement.
Section 16.12 No Third-Party Rights Created Hereby. Except as otherwise
provided expressly herein, the provisions of this Agreement are solely for the
purpose of defining the interests of the Holders, inter se; and no other person,
firm or entity (i.e., a party who is not a signatory hereto or a permitted
successor to such signatory hereto) shall have any right, power, title or
interest by way of subrogation or otherwise, in and to the rights, powers, title
and provisions of this Agreement. No creditor or other third party having
dealings with the Partnership (other than as expressly set forth herein with
respect to Indemnitees) shall have the right to enforce the right or obligation
of any Partner to make Capital Contributions or loans to the Partnership or to
pursue any other right or remedy hereunder or at law or in equity. 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 any
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 any of the Partners. Notwithstanding anything
to the contrary contained in this Section 16.12, the parties hereto specifically
acknowledge and agree that in connection with the JQH Line of Credit, iStar is
being afforded consent rights with respect to the notice and approval rights
provided for in this Agreement.
Section 16.13 ▇▇▇▇▇▇▇ Representative. Notwithstanding anything herein to
the contrary, the ▇▇▇▇▇▇▇ Limited Partners hereby designate JQH as agent and
attorney-in-fact (the "▇▇▇▇▇▇▇ REPRESENTATIVE") for all of the ▇▇▇▇▇▇▇ Limited
Partners, to act for and on behalf of the ▇▇▇▇▇▇▇ Limited Partners and to
exercise any of the rights of the ▇▇▇▇▇▇▇ Limited Partners under this Agreement,
including, without limitation, to give and receive notices and communications,
to review and confirm the amount of Net Worth and to take all other actions
necessary or appropriate in the sole and absolute good faith judgment of the
▇▇▇▇▇▇▇ Representative for the accomplishment of the foregoing. The ▇▇▇▇▇▇▇
Representative may be replaced by the ▇▇▇▇▇▇▇ Limited Partners from time to time
upon not less than thirty (30) days' prior written notice to the General Partner
upon the Consent of the ▇▇▇▇▇▇▇ Limited Partners. Any vacancy in the position of
▇▇▇▇▇▇▇ Representative whether due to resignation of the ▇▇▇▇▇▇▇ Representative,
Incapacity or otherwise may be filled by a replacement ▇▇▇▇▇▇▇ Representative
appointed (i) by the outgoing ▇▇▇▇▇▇▇ Representative or (ii) by Consent of the
▇▇▇▇▇▇▇ Limited Partners. Notices or communications to or from the ▇▇▇▇▇▇▇
Representative shall constitute notice to or from each of the ▇▇▇▇▇▇▇ Limited
Partners. Any decision, act, consent or instruction taken or given by the
▇▇▇▇▇▇▇ Representative pursuant to this Agreement shall be and constitute a
decision, act, consent or instruction of all ▇▇▇▇▇▇▇ Limited Partners and shall
be final, binding and conclusive upon each such ▇▇▇▇▇▇▇ Limited Partner; and the
Partnership, the General Partner and the other Partners may rely upon any such
decision, act, consent or instruction of the ▇▇▇▇▇▇▇ Representative as being the
decision, act, consent or instruction of each and every ▇▇▇▇▇▇▇ Limited Partner.
The Partnership, the General Partner and the other Partners are hereby relieved
from any liability to any person for any acts done by them in accordance with
such decision, act, consent or instruction of the ▇▇▇▇▇▇▇ Representative.
Section 16.14 Waiver of Jury Trial. EACH PARTY HERETO ACKNOWLEDGES AND
AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO
INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE IT HEREBY IRREVOCABLY
AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT
OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS
AGREEMENT AND ANY OF THE AGREEMENTS DELIVERED IN CONNECTION HEREWITH OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH PARTY CERTIFIES AND
ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY
HAS REPRESENTED,
56
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE SUCH WAIVER, (B) IT UNDERSTANDS AND HAS CONSIDERED
THE IMPLICATIONS OF SUCH WAIVER, (C) IT MAKES SUCH WAIVER VOLUNTARILY AND (D) IT
HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL
WAIVER AND CERTIFICATION IN THIS SECTION 16.14.
Section 16.15 Jurisdiction; Service of Process. Any action or proceeding
seeking to enforce any provision of, or based on any right arising out of, this
Agreement shall be brought against any of the parties only in the Courts of the
State of Delaware or, if it has or can acquire jurisdiction, in the United
States District Court for the District of Delaware, and each of the parties
consents to the exclusive jurisdiction of such courts (and of the appropriate
appellate courts) in any such action or proceeding and waives any objection to
venue laid therein. Process in any action or proceeding referred to in the
preceding sentence may be served on any party anywhere in the world.
Section 16.16 Advertising. The parties hereto agree to continue the
current advertising of the Chateau on the Lake in the hotels owned by the
Partnership and its Subsidiaries on mutually acceptable terms, to the extent
permitted by the respective franchise agreements for such hotels.
Section 16.17 Confidentiality. Except as otherwise required by law or
judicial order or decree or by any governmental authority, each of the Partners
shall maintain the confidentiality of all nonpublic information obtained by it
under this Agreement which has been reasonably designated as proprietary or
confidential in nature (it being understood and agreed that all of the
information delivered pursuant to Section 9.3 hereof are confidential) except as
required by law or if such information becomes known to the public in a manner
unrelated to such Person.
Section 16.18 Cumulative Remedies. Subject to Section 5.5(c), the rights
and remedies provided by this Agreement are cumulative and are not exclusive of
any rights and remedies provided by law, or at equity, including, but not
limited to injunctive relief and specific performance.
* * * * *
57
IN WITNESS WHEREOF, this Agreement has been executed as of the date first
written above.
GENERAL PARTNER:
ATRIUM GP, LLC
By: ____________________________
Name: __________________________
Its: __________________________
LIMITED PARTNERS:
_________________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Trustee of the Revocable
Trust of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ dated December
28, 1989, as Amended and Restated
▇▇▇▇▇▇▇, Inc.
By: ____________________________
Name: __________________________
Its: __________________________
58