EXHIBIT 10.1
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SECOND AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
NATIONAL GOLF OPERATING PARTNERSHIP, L.P
(a Delaware limited partnership)
Dated as of April 20, 1998
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TABLE OF CONTENTS
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PAGE
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ARTICLE 1. DEFINED TERMS................................................................... 2
ARTICLE 2. ORGANIZATIONAL MATTERS.......................................................... 17
Section 2.1. Organization............................................................. 17
Section 2.2. Name..................................................................... 17
Section 2.3. Registered Office and Agent; Principal Office............................ 18
Section 2.4. Power of Attorney........................................................ 18
Section 2.5. Term..................................................................... 19
ARTICLE 3. PURPOSE......................................................................... 19
Section 3.1. Purpose and Business..................................................... 19
Section 3.2. Powers................................................................... 20
Section 3.3. Partnership Only for Purposes Specified.................................. 20
Section 3.4. Representations and Warranties by the Parties............................ 21
ARTICLE 4. CAPITAL CONTRIBUTIONS........................................................... 23
Section 4.1. Capital Contributions of the Partners.................................... 23
Section 4.2. Additional Capital Contributions Generally............................... 23
Section 4.3. Loans by Partners........................................................ 23
Section 4.4. Loans by Third Parties................................................... 23
Section 4.5. Additional Funding and Capital Contributions............................. 24
Section 4.6. Stock Incentive Plan..................................................... 27
ARTICLE 5. DISTRIBUTIONS................................................................... 28
Section 5.1. Requirement and Characterization of Distributions........................ 28
Section 5.2. Distributions in Kind.................................................... 29
Section 5.3. Amounts Withheld......................................................... 29
Section 5.4. Distributions Upon Liquidation........................................... 29
Section 5.5. Distributions to Reflect Issuance of Additional Partnership Interests.... 29
ARTICLE 6. ALLOCATIONS..................................................................... 29
Section 6.1. Timing and Amount of Allocations of Net Income and Net Loss.............. 29
Section 6.2. General Allocations...................................................... 30
Section 6.3. Additional Allocation Provisions......................................... 31
Section 6.4. Tax Allocations.......................................................... 34
ARTICLE 7. MANAGEMENT AND OPERATIONS OF BUSINESS........................................... 34
Section 7.1. Management............................................................... 34
Section 7.2. Certificate of Limited Partnership....................................... 38
Section 7.3. Restrictions on General Partner's Authority.............................. 38
Section 7.4. Reimbursement of the General Partner..................................... 41
Section 7.5. Outside Activities of the General Partner................................ 42
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Section 7.6. Contracts with Affiliates............................................... 43
Section 7.7. Indemnification......................................................... 44
Section 7.8. Liability of the General Partner........................................ 46
Section 7.9. Other Matters Concerning the General Partner............................ 47
Section 7.10. Title to Partnership Assets............................................. 48
Section 7.11. Reliance by Third Parties............................................... 48
ARTICLE 8. RIGHTS AND OBLIGATIONS OF LIMITED PARTNERS...................................... 49
Section 8.1. Limitation of Liability................................................. 49
Section 8.2. Management of Business.................................................. 49
Section 8.3. Outside Activities of Limited Partners.................................. 49
Section 8.4. Return of Capital....................................................... 50
Section 8.5. Rights of Limited Partners Relating to the Partnership.................. 50
Section 8.6. Common Limited Partner Exchange and Put Rights.......................... 51
ARTICLE 9. BOOKS, RECORDS, ACCOUNTING AND REPORTS.......................................... 57
Section 9.1. Records and Accounting.................................................. 57
Section 9.2. Fiscal Year............................................................. 58
Section 9.3. Reports................................................................. 58
ARTICLE 10. TAX MATTERS.................................................................... 58
Section 10.1. Preparation of Tax Returns.............................................. 58
Section 10.2. Tax Elections........................................................... 59
Section 10.3. Tax Matters Partner..................................................... 59
Section 10.4. Organizational Expenses................................................. 60
Section 10.5. Withholding............................................................. 61
ARTICLE 11. TRANSFERS AND WITHDRAWALS...................................................... 61
Section 11.1. Transfer................................................................ 61
Section 11.2. Transfer of General Partner's Partnership Interest...................... 62
Section 11.3. Limited Partners' Rights to Transfer.................................... 63
Section 11.4. Substituted Limited Partners............................................ 66
Section 11.5. Assignees............................................................... 67
Section 11.6. General Provisions...................................................... 67
ARTICLE 12. ADMISSION OF PARTNERS.......................................................... 69
Section 12.1. Admission of Successor General Partner.................................. 69
Section 12.2. Admission of Additional Limited Partners................................ 70
Section 12.3. Amendment of Agreement and Certificate of Limited Partnership........... 70
Section 12.4. Limit on Number of Partners............................................. 71
ARTICLE 13. DISSOLUTION AND LIQUIDATION.................................................... 71
Section 13.1. Dissolution............................................................. 71
Section 13.2. Winding Up.............................................................. 72
Section 13.3. Compliance with Timing Requirements of Regulations...................... 73
Section 13.4. Deemed Distribution and Recontribution.................................. 73
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Section 13.5. Rights of Limited Partners.............................................. 74
Section 13.6. Notice of Dissolution................................................... 74
Section 13.7. Cancellation of Certificate of Limited Partnership...................... 74
Section 13.8. Reasonable Time for Winding-Up.......................................... 74
Section 13.9. Waiver of Partition..................................................... 75
ARTICLE 14. PROCEDURES FOR ACTIONS AND CONSENTS OF PARTNERS................................ 75
Section 14.1. Procedures For Actions And Consents of Partners......................... 75
ARTICLE 15. GENERAL PROVISIONS............................................................. 76
Section 15.1. Addresses and Notice.................................................... 76
Section 15.2. Titles and Captions..................................................... 76
Section 15.3. Pronouns and Plurals.................................................... 77
Section 15.4. Further Action.......................................................... 77
Section 15.5. Binding Effect.......................................................... 77
Section 15.6. Creditors............................................................... 77
Section 15.7. Waiver.................................................................. 77
Section 15.8. Counterparts............................................................ 77
Section 15.9. Applicable Law.......................................................... 78
Section 15.10. Invalidity of Provisions............................................... 78
Section 15.11. Limitation to Preserve REIT Status..................................... 78
Section 15.12. Partition.............................................................. 79
Section 15.13. No Third-Party Rights Created Hereby................................... 79
Section 15.14. Entire Agreement....................................................... 79
ARTICLE 16. SERIES A PREFERRED UNITS....................................................... 80
Section 16.1. Designation and Number.................................................. 80
Section 16.2. Distributions........................................................... 80
Section 16.3. Liquidation Proceeds.................................................... 82
Section 16.4. Optional Redemption..................................................... 82
Section 16.5. Voting Rights........................................................... 84
Section 16.6. Transfer Restrictions................................................... 85
Section 16.7. Exchange Rights......................................................... 85
Section 16.8. No Conversion Rights.................................................... 90
Section 16.9. No Sinking Fund......................................................... 90
Section 16.10. Reports................................................................ 90
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SECOND AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
NATIONAL GOLF OPERATING PARTNERSHIP, L.P.
THIS SECOND AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP,
dated as of April 20, 1998, is entered into by and among National Golf
Properties, Inc., a Maryland corporation (the "REIT"), as the General Partner
and the Persons whose names are set forth on Exhibit A as attached hereto, as
the Limited Partners, together with any other Persons who become Partners in the
Partnership as provided herein.
WHEREAS, the Partnership was formed on August 18, 1993 and an original
Agreement of Limited Partnership was entered into between the REIT, as General
Partner, and the Limited Partners;
WHEREAS, in connection with the REIT's assignment and contribution to
the Partnership of certain golf course properties acquired from Golf
Enterprises, Inc., the REIT, as General Partner, entered into the Amendment of
Agreement of Limited Partnership dated as of July 25, 1996.
WHEREAS, in order to clarify certain provisions of the original
Agreement of Limited Partnership, as amended, the REIT, as General Partner,
entered into the Second Amendment of Agreement of Limited Partnership, dated as
of July 29, 1996;
WHEREAS, on ▇▇▇▇▇ ▇, ▇▇▇▇, ▇▇▇▇▇▇ Capital Fund LLC, a Massachusetts
limited liability company ("Contributor"), made a Capital Contribution of
$60,000,000 in cash to the Partnership in exchange for an aggregate of 1,200,000
8% Series A Cumulative Redeemable Preferred Units of limited partnership
interest in the Partnership with the rights, preferences, exchange and other
rights, voting powers and restrictions, limitations as to distributions,
qualifications and terms and conditions as set forth herein;
WHEREAS, on the date hereof, Contributor is making a Capital
Contribution of $15,000,000 in cash to the Partnership in exchange for an
aggregate of 300,000 additional Series A Cumulative Redeemable Preferred Units
of limited partnership interest in the Partnership with the rights, preferences,
exchange and other rights, voting powers and restriction, limitations as to
distributions, qualifications and terms and conditions as set forth herein;
WHEREAS, the REIT, as General Partner, desires to amend and restate
the Partnership Agreement to reflect (i) the issuance of 300,000 additional
Series A Cumulative Redeemable Preferred Units and (ii) certain other matters
described herein;
WHEREAS, Contributor desires to make the additional capital
contribution referenced above and to continue to be bound by all terms,
conditions and other provisions of the Partnership Agreement; and
WHEREAS, the REIT, as General Partner, has obtained the written
consent of Limited Partners representing at least the minimum number of
Partnership Interests (as defined in the Partnership Agreement) required to
amend the Partnership Agreement pursuant to Section 7.3 and Article 14 of the
Partnership Agreement.
NOW, THEREFORE, BE IT RESOLVED, that for good and adequate
consideration, the receipt of which is hereby acknowledged, the parties hereto
agree 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, as
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it may be amended from time to time, and any successor to such statute.
"Additional Funds" shall have the meaning set forth in Section 4.5.A.
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"Additional Limited Partner" means a Person admitted to the
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Partnership as a Limited Partner pursuant to Section 12.2 hereof and who is
shown as such on the books and records of the Partnership.
"Adjusted Capital Account Deficit" means, with respect to any Partner,
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the deficit balance, if any, in such Partner's Capital Account as of the end of
the relevant fiscal year, after giving effect to the following adjustments:
(i) decrease such deficit by any amounts which such Partner is
obligated to restore pursuant to this Agreement or is deemed to be
obligated to restore pursuant to Regulations Section 1.704-1(b)(2)(ii)(c)
or the penultimate sentence of each of Regulations Sections 1.704-2(i)(5)
and 1.704-2(g); and
(ii) increase such deficit by the items described in Regulations
Section 1.704-1(b)(2)(ii)(d)(4), (5) and (6).
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.
"Adjustment Date" shall have the meaning set forth in Section 4.5.F.
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hereof.
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"Affiliate" means, with respect to any Person, any Person directly or
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indirectly controlling, controlled by or under common control with such Person,
and when used in Section 11.3, such Person's Immediate Family.
"Agreed Value" means (i) in the case of any Contributed Property set
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forth in Exhibit A and as of the time of its contribution to the Partnership,
the Agreed Value of such property as set forth in Exhibit A; (ii) in the case of
any Contributed Property not set forth in Exhibit A and as of the time of its
contribution to the Partnership, the fair market value of such property or other
consideration as determined by the General Partner, reduced by any liabilities
either assumed by the Partnership upon such contribution or to which such
property is subject when contributed; and (iii) in the case of any property
distributed to a Partner by the Partnership, the fair market value of such
property as determined by the General Partner at the time such property is
distributed, reduced by any indebtedness either assumed by such Partner upon
such distribution or to which such property is subject at the time of the
distribution as determined under Section 752 of the Code and the Regulations
thereunder.
"Agreement" means this Second Amended and Restated Agreement of
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Limited Partnership, as it may be amended, supplemented or restated from time to
time.
"Appraisal" means with respect to any assets, the opinion of an
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independent third party experienced in the valuation of similar assets, selected
by the General Partner in good faith; such opinion may be in the form of an
opinion by such independent third party that the value for such property or
asset as set by the General Partner is fair, from a financial point of view, to
the Partnership.
"Assignee" means a Person to whom one or more Partnership Units have
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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.
"Available Cash" means, with respect to any period for which such
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calculation is being made, (i) the sum, without duplication, of:
(a) the Partnership's Net Income or Net Loss (as the case may be)
for such period,
(b) Depreciation and all other noncash charges deducted in
determining Net Income or Net Loss for such period,
(c) the amount of any reduction in reserves of the Partnership
referred to in clause (ii)(f) below (including, without limitation,
reductions resulting because the General Partner determines such
amounts are no longer necessary),
(d) the excess of the net proceeds from the sale, exchange,
disposition or refinancing of Partnership property for such period
over the gain (or loss, as the case may be) recognized from such sale,
exchange, disposition or refinancing during such period (excluding
Terminating Capital Transactions), and
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(e) all other cash received by the Partnership for such period
that was not included in determining Net Income or Net Loss for such
period;
(ii) less the sum, without duplication, of:
(a) all principal debt payments made during such period by the
Partnership,
(b) capital expenditures made by the Partnership during such
period,
(c) investments in any entity (including loans made thereto) to
the extent that such investments are not otherwise described in
clauses (ii)(a) or (b),
(d) all other expenditures and payments not deducted in
determining Net Income or Net Loss for such period,
(e) any amount included in determining Net Income or Net Loss for
such period that was not received by the Partnership during such
period, and
(f) the amount of any increase in reserves established during
such period which the General Partner determines are necessary or
appropriate in its sole and absolute discretion.
Notwithstanding the foregoing, Available Cash shall not include any
cash received or reductions in reserves, or include any disbursements made or
reserves established, after commencement of the dissolution, liquidation and
winding up of the Partnership.
"Board of Directors" means the Board of Directors of the General
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Partner.
"Business Day" shall mean each day, other than a Saturday or a Sunday,
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which is not a day on which banking institutions in Los Angeles, California, or
New York, New York are authorized or required by law, regulation or executive
order to close.
"Capital Account" means, with respect to any Partner, the Capital
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Account maintained for such Partner 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 share of Net Income and any
items in the nature of income or gain which are specially allocated pursuant to
Section 6.3 hereof, and the amount of any Partnership liabilities assumed by
such Partner or which 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 which are
specially allocated pursuant to Section 6.3 hereof, and the
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amount of any liabilities of such Partner assumed by the Partnership or which
are secured by any property contributed by such Partner to the Partnership.
(c) In the event any interest in the Partnership is transferred in
accordance with the terms of this Agreement, the transferee shall succeed to the
Capital Account of the transferor to the extent it relates to the transferred
interest.
(d) In determining the 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 foregoing provisions and the other provisions of this
Agreement relating to the maintenance of Capital Accounts are intended to comply
with Regulations Sections 1.704-1(b) and 1.704-2, and shall be interpreted and
applied in a manner consistent with such Regulations. In the event the General
Partner shall determine that it is prudent to modify the manner in which the
Capital Accounts, or any debits or credits thereto (including, without
limitation, debits or credits relating to liabilities which are secured by
contributed or distributed property or which are assumed by the Partnership, the
General Partner, or the Limited Partners) are computed in order to comply with
such Regulations, the General Partner may make such modification provided that
it is not likely to have a material effect on the amounts distributable to any
Person pursuant to Article 13 of this Agreement upon the dissolution of the
Partnership. 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 unanticipated events might otherwise cause this
Agreement not to comply with Regulations Section 1.704-1(b) or Section 1.704-2.
"Capital Contribution" means, with respect to any Partner, the amount
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of money and the initial Gross Asset Value of any property (other than money)
contributed to the Partnership by such Partner.
"Cash Amount" is defined in Section 8.6.C.
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"Certificate" means the Certificate of Limited Partnership of the
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Partnership filed in the office of the Delaware Secretary of State, as amended
from time to time in accordance with the terms hereof and the Act.
"Charter" means the Articles of Incorporation of the General Partner
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filed in the State of Maryland on August 31, 1995, as amended or restated from
time to time.
"Code" means the Internal Revenue Code of 1986, as amended from time
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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.
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"Common Limited Partner" means any Person holding Common Units and
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named as a Common Limited Partner in Exhibit A attached hereto, as such Exhibit
may be amended from time to time, or any Substituted Limited Partner or
Additional Limited Partner, in such Person's capacity as a Common Limited
Partner in the Partnership.
"Common Unit" means a Partnership Unit representing a Partnership
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Interest that is without preference as to distributions and allocations or
rights upon voluntary or involuntary liquidation, dissolution or winding-up.
"Consent" means the consent to, approval of, or vote on a proposed
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action by a Partner given in accordance with Article 14 hereof.
"Consent of the Limited Partners" means the Consent of a Majority in
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Interest of the Limited Partners, which Consent shall be obtained prior to the
taking of any action for which it is required by this Agreement and may be given
or withheld by a Majority in Interest of the Limited Partners, unless otherwise
expressly provided herein, in their sole and absolute discretion.
"Constructive Ownership" means ownership determined through the
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application of the constructive ownership rules of Section 318 of the Code, as
modified by Section 856(d)(5) of the Code, as such provisions may be modified
from time to time. The terms "Constructive," "Constructive Owner,"
"Constructively Owns" and "Constructively Owned" shall have the correlative
meanings.
"Contributed Properties" means each property or other asset, in such
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form as may be permitted by the Act, but excluding cash, contributed or deemed
contributed to the Partnership (or, to the extent provided in applicable
Regulations, deemed contributed by the Partnership on termination and
reconstitution thereof pursuant to Section 708 of the Code).
"Contribution Agreement" means the Contribution Agreement, dated as of
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the date of this Agreement, between Contributor and the Partnership and the
REIT.
"Debt" means, as to any Person, as of any date of determination, (i)
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all indebtedness of such Person for borrowed money or for the deferred purchase
price of property or services; (ii) all amounts owed by such Person to banks or
other Persons in respect of reimbursement obligations under letters of credit,
surety bonds and other similar instruments guaranteeing payment or other
performance of obligations by such Person; (iii) all indebtedness for borrowed
money or for the deferred purchase price of property or services secured by any
lien on any property owned by such Person, to the extent attributable to such
Person's interest in such property, even though such Person has not assumed or
become liable for the payment thereof; and (iv) lease obligations of such Person
which, in accordance with generally accepted accounting principles, should be
capitalized.
"Deemed Partnership Interest Value" means, as of any date with respect
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to any class of Partnership Interests, the Deemed Value of the Partnership
Interests of such class or series multiplied by the applicable Partner's
Percentage Interest of such class or series.
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"Deemed Value of the Partnership Interests" means, as of any date with
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respect to any class or series of Partnership Interests, (i) the total number of
Partnership Units of the General Partner in such class or series of Partnership
Interests (as provided for in Sections 4.1 and 4.5.D) issued and outstanding as
of the close of business on such date multiplied by the Value of a share of
capital stock of the General Partner which corresponds to such class or series
of Partnership Interests on such date; (ii) divided by the Percentage Interest
of the General Partner in such class or series of Partnership Interests on such
date; provided that, if no outstanding shares of capital stock of the General
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Partner correspond to a class or series of Partnership Interests, the Deemed
Value of Partnership Interests with respect to such class or series shall be
equal to an amount reasonably determined by the General Partner.
"Depreciation" means, for each fiscal year or other period, an amount
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equal to the 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, Depreciation
shall be an amount which 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 is
zero, Depreciation shall be determined with reference to such beginning Gross
Asset Value using any reasonable method selected by the General Partner.
"DGP" means ▇▇▇▇▇ ▇. ▇▇▇▇▇, an individual.
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"Effective Date" means the date of closing of the sale of REIT Shares
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pursuant to that certain Underwriting Agreement among the General Partner, the
Partnership and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co., Incorporated et al., upon which the
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Certificate was filed.
"Election Notice" is defined in Section 4.6.E.
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"Excess Units" has the meaning set forth in Section 16.A(iii).
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"Exchange" has the meaning set forth in Section 8.6.
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"Funding Debt" means the incurrence of any Debt by or on behalf of the
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General Partner for the purpose of providing funds to the Partnership.
"Funding Notice" has the meaning set forth in Section 4.5.B.
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"General Partner" means the REIT or its successors as general partner
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of the Partnership.
"General Partner Interest" means a Partnership Interest held by the
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General Partner. A General Partner Interest may be expressed as a number of
Partnership Units.
"General Partner Loan" is defined in Section 4.5.C.
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"General Partner Payment" shall have the meaning set forth in Section
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15.11.
"General Partner Properties" means the properties identified on
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Exhibit A attached hereto, and any rents, proceeds or assets resulting from the
ownership and operation of such properties, so long as such properties are owned
by the General Partner.
"Gross Asset Value" means, with respect to any asset, the asset's
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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 contributing Partner and the General Partner (as set forth
on Exhibit A attached hereto, as such Exhibit may be amended from time to time);
provided that, if the contributing Partner is the General Partner, then, except
with respect to the General Partner's initial Capital Contribution or capital
contributions of cash, REIT Shares or other shares of capital stock of the
General Partner, the determination of the fair market value of the contributed
asset shall be determined by (i) the price paid by the General Partner if the
asset is acquired by the General Partner contemporaneously with its contribution
to the Partnership, or (ii) by Appraisal.
(b) The Gross Asset Values of all Partnership assets 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; provided,
however, that for this purpose, the net value of all of the Partnership assets,
in the aggregate, shall be equal to the Deemed Value of the Partnership
Interests of all classes of Partnership Interests then outstanding, regardless
of the method of valuation adopted by the General Partner, as of the following
times:
(i) the acquisition of an additional interest in the
Partnership 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); and
(iv) 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
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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, by Appraisal.
(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 Values shall not be adjusted pursuant to this subparagraph (d) to
the extent that the General Partner reasonably determines that an adjustment
pursuant to subparagraph (b) is necessary or appropriate in connection with a
transaction that would otherwise result in an adjustment pursuant to this
subparagraph (d).
(e) If the Gross Asset Value of a Partnership asset has been
determined or adjusted pursuant to subparagraph (a), (b) or (d), such Gross
Asset Value shall thereafter be adjusted by the Depreciation taken into account
with respect to such asset for purposes of computing Net Income and Net Losses.
"Immediate Family" means, with respect to any Person, such Person's
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estate and heirs and current and former spouse(s), parents, parents-in-law,
children, children-in-law, siblings and grandchildren and any trust or estate,
all of the beneficiaries of which consist of such Person or such Person's
current or former spouse, parents, parents-in-law, children-in-law, children,
siblings or grandchildren.
"Incapacity" or "Incapacitated" means, (i) as to any individual
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Partner, death, total physical disability or entry by a court of competent
jurisdiction adjudicating him incompetent to manage his Person or his estate;
(ii) as to any corporation which is a Partner, the filing of a certificate of
dissolution, or its equivalent, for the corporation or the revocation of its
charter; (iii) as to any partnership which is a Partner, the dissolution and
commencement of winding up of the partnership; (iv) as to any estate which is a
Partner, the distribution by the fiduciary of the estate's entire interest in
the Partnership; (v) as to any trustee of a trust which 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 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 120 days after the
commencement thereof, (g) the appointment without the Partner's consent or
acquiescence of a trustee, receiver of
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liquidator has not been vacated or stayed within 90 days of such appointment, or
(h) an appointment referred to in clause (g) is not vacated within 90 days after
the expiration of any such stay.
"Indemnitee" means (i) any Person made a party to a proceeding by
----------
reason of his status as (A) the General Partner or (B) a director of the General
Partner or officer of the Partnership or the General Partner, and (ii) such
other Persons (including Affiliates of the General Partner or the Partnership)
as the General Partner may designate from time to time, in its sole and absolute
discretion.
"IRS" means the Internal Revenue Service, which administers the
---
internal revenue laws of the United States.
"Junior Stock" means any class or series of capital stock of the
------------
General Partner ranking junior as to the payment of distributions to the Series
A Preferred Stock.
"Junior Units" has the meaning set forth in Section 16.2.C hereof.
------------
"Limited Partner" means any Common Limited Partner or Preferred
---------------
Limited Partner.
"Limited Partnership 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 Partnership Interest may
be expressed as a number of Partnership Units.
"Liquidating Events" has the meaning set forth in Section 13.1.
------------------
"Liquidator" has the meaning set forth in Section 13.2.A.
----------
"Majority in Interest of the Limited Partners" means those Limited
--------------------------------------------
Partners (other than (i) any Limited Partner 50% or more of whose equity is
owned, directly or indirectly, by the General Partner and (ii) any Preferred
Limited Partner) holding in the aggregate Percentage Interests that are greater
than fifty percent (50%) of the aggregate Percentage Interests of all Limited
Partners (other than (i) any Limited Partner 50% or more of whose equity is
owned, directly or indirectly, by the General Partner and (ii) any Preferred
Limited Partner).
"Net Income" or "Net Loss" means for each fiscal year of the
---------- --------
Partnership, an amount equal to the Partnership's taxable income or loss for
such fiscal year, 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:
10
(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 such
taxable income or loss;
(b) Any expenditures of the Partnership described in Code Section
705(a)(2)(B) or treated as Code Section 705(a)(2)(B) expenditures 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 Income or
Net Loss shall be subtracted from such taxable income or loss;
(c) In the event the Gross Asset Value of any Partnership asset is
adjusted pursuant to subparagraph (b) or subparagraph (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 taken into account in computing such taxable income or loss, there
shall be taken into account Depreciation for such fiscal year;
(f) To the extent 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)(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 items which are 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.
Solely for purposes of allocating Net Income or Net Loss in any Partnership Year
to the holders of the Series A Preferred Units pursuant to Sections 6.2.B.1(b)
and (d), and Section 6.2.B.2(b), items of Net Income and Net Loss, as the case
may be, shall not include Depreciation with respect to properties that are
"ceiling limited" in respect of Preferred Limited Partners. For purposes of the
preceding sentence, Partnership property shall be considered ceiling limited in
respect of a Preferred Limited Partner if Depreciation attributable to such
Partnership property
11
which would otherwise be allocable to such Partner, without regard to this
paragraph, exceeded depreciation determined for federal income tax purposes
attributable to such Partnership property which would otherwise be allocable to
such Partner by more than 5%.
"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).
"Notice of Exchange" means the Notice of Exchange substantially in the
------------------
form of Exhibit B to this Agreement.
"Notice of Put" means the Notice of Put substantially in the form of
-------------
Exhibit B to this Agreement.
"Original Limited Partner" means the Limited Partners of the
------------------------
Partnership listed on Schedule A hereto, as of August 18, 1993.
"Original Limited Partnership Unit" means a Partnership Unit held by
---------------------------------
an Original Limited Partner on August 18, 1993.
"Parity Preferred Unit" means any class or series of Partnership
---------------------
Interests of the Partnership now or hereafter authorized, issued or outstanding
expressly designated by the Partnership to rank on a parity with Series A
Preferred Units with respect to distributions or rights upon voluntary or
involuntary liquidation, winding up or dissolution of the Partnership, or both,
as the context may require.
"Partner" means a 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 under the Act and
-----------
pursuant to this Agreement, and any successor thereto.
12
"Partnership Interest" means an ownership interest in the Partnership
--------------------
of 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. There may be one or more
classes or series of Partnership Interests as provided in Section 4.5. A
Partnership Interest may be expressed as a number of Partnership Units. Unless
otherwise expressly provided for by the General Partner at the time of the
original issuance of any Partnership Interests, all Partnership Interests
(whether of a Limited Partner or a General Partner) shall be of the same class
or series. The Partnership Interests represented by the Common Units and the
Series A Preferred Units are the only Partnership Interests and are separate
classes of Partnership Interest for all purposes of this Agreement.
"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 for the distribution of Available Cash with respect to
Partnership Interests that are not entitled to any preference in distribution
pursuant to Section 5.1 hereof which record date shall be the same as the record
date established by the General Partner for a distribution to its stockholders
of some or all of its portion of such distribution.
"Partnership Unit" means, with respect to any class or series of
----------------
Partnership Interest, a fractional, undivided share of such class or series of
Partnership Interest issued pursuant to Sections 4.1 and 4.5. The ownership of
Partnership Units may be evidenced by a certificate for units substantially in
the form of Exhibit C hereto or as the General Partner may determine with
respect to any class or series of Partnership Units issued from time to time
under Sections 4.1 and 4.5.
"Partnership Year" means the fiscal year of the Partnership, which
----------------
shall be the calendar year.
"Percentage Interest" means, as to a Partner holding a class or series
-------------------
of Partnership Interests, its interest in such class or series as determined by
dividing the Partnership Units of such class or series owned by such Partner by
the total number of Partnership Units of such class or series then outstanding
as specified in Exhibit A attached hereto, as such Exhibit may be amended from
time to time. If the Partnership issues more than one class or series of
Partnership Interest, the interest in the Partnership among the classes or
series of Partnership Interests shall be determined as set forth in the
amendment to the Partnership Agreement setting forth the rights and privileges
of such additional classes or series of Partnership Interest, if any, as
contemplated by Section 4.5.D.
"Person" means an individual or a corporation, partnership, limited
------
liability company, trust, unincorporated organization, association or other
entity.
13
"Preemptive Contribution" is defined in Section 4.5.E.
-----------------------
"Preferred Limited Partner" means any Person holding a Preferred Unit,
-------------------------
and named as a Preferred Limited Partner in Exhibit A attached hereto, as such
Exhibit may be amended from time to time, or any Substitute Limited Partner or
Additional Limited Partner, in such Person's capacity as a Preferred Limited
Partner in the Partnership.
"Preferred Share" means a share of the General Partner's preferred
---------------
stock, par value $.01 per share, with such rights, priorities and preferences as
shall be designated by the Board of Directors in accordance with the Charter.
"Preferred Unit" means a Series A Preferred Unit and any other
--------------
Partnership Unit representing a Limited Partnership Interest, with such rights,
priorities and preferences as shall be designated by the General Partner
pursuant to Section 4.5.D other than Common Units.
"Preferred Unit Distribution Payment Date" has the meaning set forth
----------------------------------------
in Section 16.2.A.
"Preferred Unit Partnership Record Date" has the meaning set forth in
--------------------------------------
Section 16.2.A.
"Primary Offering Notice" shall have the meaning set forth in Section
-----------------------
8.6.G.
"Priority Return" shall mean, an amount equal to 8% per annum,
---------------
determined on the basis of a 360 day year of twelve 30 day months (or actual
days for any month which is shorter than a full monthly period), cumulative to
the extent not distributed for any given distribution period pursuant to
Sections 5.1 and 16.2 hereof, on the stated value of $50 per Series A Preferred
Unit, commencing on the date of the issuance of such Series A Preferred Unit.
"Pro Rata Contribution" has the meaning set forth in Section 4.5.E.
---------------------
"Properties" means such interests in real property and personal
----------
property, including without limitation, fee interests, interests in ground
leases, interests in joint ventures or partnerships, interests in mortgages, and
Debt instruments as the Partnership may hold from time to time.
"PTP" has the meaning set forth in Section 16.6 hereof.
---
"Public Offering Funding" is defined in Section 8.6.D.
-----------------------
"Public Offering Funding Amount" is defined in Section 8.6.D.
------------------------------
"Put" has the meaning set forth in Section 8.6 hereof.
---
"Put Amount" means the lesser of (i) the Cash Amount or (ii) the
----------
Public Offering Funding Amount.
14
"Qualified REIT Subsidiary" means any Subsidiary of the General
-------------------------
Partner that is a "qualified REIT subsidiary" within the meaning of Section
856(i) of the Code.
"Qualified Transferee" means an "Accredited Investor" as defined in
--------------------
Rule 501 promulgated under the Securities Act.
"Registrable Shares" has the meaning set forth in Section 8.6.
------------------
"Regulations" means the Income Tax Regulations promulgated under the
-----------
Code, as such regulations may be amended from time to time (including
corresponding provisions of succeeding regulations).
"Regulatory Allocations" has the meaning set forth in Section
----------------------
6.3.A(viii).
"REIT" means a real estate investment trust under Sections 856 through
----
860 of the Code.
"REIT Requirements" has the meaning set forth in Section 5.1.
-----------------
"REIT Series A Preferred Share" means a share of 8% Series A
-----------------------------
Cumulative Redeemable Preferred Stock, par value $.01 per share, liquidation
preference $50 per share, of the General Partner.
"REIT Share" shall mean a share of common stock of the General
----------
Partner.
"REIT Shares Amount" means, as of any date, an aggregate number of
------------------
REIT Shares equal to the number of Tendered Units, as adjusted pursuant to
Section 7.5 (as a result of the General Partner owning assets held other than on
behalf of the Partnership) and, as appropriate, for stock dividends and
distributions, stock splits and subdivisions, reverse stock splits and
combinations, distributions of rights, warrants or options, and distributions of
evidences of indebtedness or assets relating to assets not received by the
General Partner pursuant to a pro rata distribution by the Partnership.
--- ----
"Securities Act" means the Securities Act of 1933, as amended, and the
--------------
rules and regulations of the Securities and Exchange Commission promulgated
thereunder.
"Series A Limited Partner" means any Person holding Series A Preferred
------------------------
Units and named as a Series A Limited Partner in Exhibit A attached hereto, as
such Exhibit may be amended from time to time, or any Substitute Limited
Partner, in such Person's capacity as a Series A Limited Partner in the
Partnership.
"Series A Preferred Units" means the Partnership's 8% Series A
------------------------
Cumulative Redeemable Limited Partnership Units, with the rights, priorities and
preferences set forth herein.
"Single Funding Notice" has the meaning set forth in Section 8.6.C.
---------------------
15
"Specified Exchange Date" means the day of receipt by the General
-----------------------
Partner of a Notice of Exchange.
"Specified Put Date" means the tenth Business Day after receipt by the
------------------
General Partner of a Notice of Put; provided that in the event that the General
-------- ----
Partner elects a Public Offering Funding pursuant to Section 8.6.C, such
Specified Put Date shall be deemed deferred until the next Business Day
following the date of the closing of the Public Offering Funding, provided that
the General Partner has complied in all respects with its obligations with
respect to the Public Offering Funding.
"Stock Incentive Plan" means, collectively, the 1993 Stock Option and
--------------------
Incentive Plan for Key Employees of National Golf Properties, Inc., National
Golf Operating Partnership, L.P. and American Golf Corporation; the 1995
Independent Director Equity Participation Plan of National Golf Properties,
Inc.; the 1997 Equity Participation Plan of National Golf Properties, Inc.,
National Golf Operating Partnership, L.P. and American Golf Corporation; and any
similar or successor plans.
"Subsequent Put" shall have the meaning set forth in Section 8.6.G.
--------------
"Subsidiary" means, with respect to any Person, any corporation,
----------
partnership, limited liability company, joint venture or other entity of which a
majority of (i) the voting power of the voting equity securities or (ii) the
outstanding equity interests is owned, directly or indirectly, by such Person.
"Substituted Limited Partner" means a Person who is admitted as a
---------------------------
Limited Partner to the Partnership pursuant to Section 11.4.
"Tenant" means any tenant from which the General Partner derives rent
------
either directly or indirectly through partnerships, including the Partnership.
"Tendered Units" has the meaning set forth in Section 8.6.A.
--------------
"Terminating Capital Transaction" means any sale or other disposition
-------------------------------
of all or substantially all of the assets of the Partnership or a related series
of transactions that, taken together, result in the sale or other disposition of
all or substantially all of the assets of the Partnership.
"Twelve-Month Period" means a twelve-month period ending on the first
-------------------
anniversary of the Effective Date or on each subsequent anniversary thereof.
"Valuation Date" means the date of receipt by the General Partner of a
--------------
Notice of Exchange or Notice of Put or any other date with respect to which
"Value" must be determined hereunder, or, if such date is not a Business Day,
the immediately preceding Business Day.
"Value" means, with respect to any share of capital stock of the
-----
General Partner, the average of the daily market price for the ten (10)
consecutive trading days immediately
16
preceding the Valuation Date. The market price for each such trading day shall
be: (i) if such shares are listed or admitted to trading on any securities
exchange or the Nasdaq National Market, the closing price, regular way, on such
day, or if no such sale takes place on such day, the average of the closing bid
and asked prices on such day, (ii) if such shares are not listed or admitted to
trading on any securities exchange or the Nasdaq National Market, the last
reported sale price on such day or, if no sale takes place on such day, the
average of the closing bid and asked prices on such day, as reported by a
reliable quotation source designated by the General Partner, or (iii) if such
shares are not listed or admitted to trading on any securities exchange or the
Nasdaq National Market and no such last reported sale price or closing bid and
asked prices are available, the average of the reported high bid and low asked
prices on such day, as reported by a reliable quotation source designated by the
General Partner, or if there shall be no bid and asked prices on such day, the
average of the high bid and low asked prices, as so reported, on the most recent
day (not more than 10 days prior to the date in question) for which prices have
been so reported; provided that if there are no bid and asked prices reported
-------- ----
during the 10 days prior to the date in question, the Value of such shares shall
be determined by the General Partner acting in good faith on the basis of such
quotations and other information as it considers, in its reasonable judgment,
appropriate. In the event the REIT Shares Amount includes rights that a holder
of REIT Shares would be entitled to receive, then the Value of such rights shall
be determined by the General Partner acting in good faith on the basis of such
quotations and other information as it considers, in its reasonable judgment,
appropriate; and provided further that, in connection with determining the
-------- ------- ----
Deemed Value of the Partnership Interests for purposes of determining the number
of additional Units issuable upon a Capital Contribution funded by an
underwritten public offering of shares of capital stock of the General Partner,
then the Value of such shares shall be the public offering price per share of
such class or series of capital stock sold.
ARTICLE 2.
ORGANIZATIONAL MATTERS
Section 2.1. Organization.
------------
The Partnership is a limited partnership formed pursuant to the
provisions of the Act and upon the terms and 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 is National Golf Operating Partnership,
L.P. 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
17
the name of the Partnership at any time and from time to time and shall notify
the Limited Partners of such change in the next regular communication to the
Limited Partners.
Section 2.3. Registered Office and Agent; Principal Office.
---------------------------------------------
The address of the registered office of the Partnership in the State
of Delaware is located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, and the
registered agent for service of process on the Partnership in the State of
Delaware at such registered office is Corporation Trust Company. The principal
office of the Partnership is ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, 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. Each Limited Partner and each Assignee hereby irrevocably
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, as its true and lawful agent and attorney-
in-fact, with full power and authority in its name, place and stead to:
(1) execute, swear to, 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 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)
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 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; (d) all instruments relating to the
admission, withdrawal, removal or substitution of any Partner
pursuant to, or other events described in, Article 11, 12 or 13
hereof or the Capital Contribution of any Partner; and (e) all
certificates, documents and other instruments relating to the
determination of the rights, preferences and privileges of
Partnership Interests; and
(2) execute, swear to, acknowledge and file all ballots, consents,
approvals, waivers, certificates and other instruments
appropriate or necessary, in the sole and absolute discretion of
the General Partner, to make, evidence, give, confirm or ratify
any vote, consent, approval, agreement or other action which is
made or given by the Partners hereunder or is consistent
18
with the terms of this Agreement or appropriate or necessary, in
the sole discretion of the General Partner, to effectuate the
terms or intent of this Agreement.
Nothing contained herein shall be construed as authorizing the General Partner
to amend this Agreement except in accordance with Article 14 hereof or as may be
otherwise expressly provided for in this Agreement.
B. The foregoing power of attorney is hereby declared to be
irrevocable and a special power coupled with an interest, in recognition of the
fact that each of the Partners will be relying upon the power of the General
Partner and any Liquidator 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 Limited Partner's or
Assignee's Partnership Units and shall extend to such Limited Partner's or
Assignee's heirs, successors, assigns and personal representatives. Each such
Limited Partner or Assignee hereby agrees to be bound by any representation made
by the General Partner or any Liquidator, acting in good faith pursuant to such
power of attorney; and each such Limited Partner or Assignee hereby waives any
and all defenses which may be available to contest, negate or disaffirm the
action of the General Partner or any Liquidator, taken in good faith under such
power of attorney. Each Limited Partner or Assignee shall execute and deliver
to the General Partner or any Liquidator, within 15 days after receipt of the
General Partner's or 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.
Section 2.5. Term.
----
The term of the Partnership commenced on August 18, 1993 and shall
continue until December 31, 2092 unless it is dissolved sooner pursuant to the
provisions of Article 13 or as otherwise provided by law.
ARTICLE 3.
PURPOSE
Section 3.1. Purpose and Business.
--------------------
The purpose and nature of the business to be conducted by the
Partnership is (i) to conduct any business that may be lawfully conducted by a
limited partnership organized pursuant to the Act, provided, however, that such
business shall be limited to and conducted in such a manner as to permit the
General Partner at all times to be classified as a REIT for federal income tax
purposes, unless the General Partner has determined to cease to qualify as a
REIT, (ii) to enter into any partnership, joint venture or other similar
arrangement to engage in any of the foregoing or the ownership of interests in
any entity engaged in any of the foregoing and (iii) to do anything necessary or
incidental to the foregoing. The business of the Partnership shall at all times
be conducted in a manner substantially consistent with the policies set forth
under the caption "Policies and Objectives With Respect to Certain Activities"
in the final prospectus with
19
respect to the initial public offering of REIT Shares, unless otherwise
consented to in writing by the General Partner and the Majority in Interest of
the Limited Partners.
Section 3.2. Powers.
------
The Partnership is empowered to do any and all acts and things
necessary, appropriate, proper, advisable, incidental to or convenient for the
furtherance and accomplishment of the purposes and business described herein and
for the protection and benefit of the Partnership, provided that the Partnership
shall not take, or refrain from taking, any action which, in the judgment of the
General Partner, in its sole and absolute discretion, (i) could adversely affect
the ability of the General Partner to continue to qualify as a REIT, (ii) could
subject the General Partner to any additional taxes under Section 857 or Section
4981 of the Code, except with respect to the distribution of Available Cash to
the Series A Limited Partners in accordance with Section 16.2, or (iii) could
violate any law or regulation of any governmental body or agency having
jurisdiction over the General Partner or its securities, unless such action (or
inaction) under (i), (ii) or (iii) shall have been specifically consented to by
the General Partner in writing.
Section 3.3. Partnership Only for Purposes Specified.
---------------------------------------
The Partnership shall be a partnership only for the purposes specified
in Section 3.1 hereof, and this Agreement shall not be deemed to create a
partnership among the Partners 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 Parties.
---------------------------------------------
A. Each Partner that is an individual represents and warrants to each
other Partner that (i) such Partner has the legal capacity to enter into this
Agreement and perform such Partner's obligations hereunder, (ii) 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 agreement by which such Partner or any of such Partner's property is or are
bound, or any statute, regulation, order or other law to which such Partner is
subject, (iii) such Partner is not a "foreign person" within the meaning of
Section 1445(f) of the Code, (iv) except for DGP, such Partner does not own,
directly or indirectly, (a) two percent (2%) or more of the total combined
voting power of all classes of stock entitled to vote, or two percent (2%) or
more of the total number of shares of all classes of stock, of any corporation
that is a tenant of either the General Partner or the Partnership or (b) an
interest of two percent (2%) or more in the assets or
20
net profits of any tenant of the General Partner or the Partnership and (v) this
Agreement is binding upon, and enforceable against, such Partner in accordance
with its terms.
B. Each Partner that is not an individual represents and warrants to
each other Partner that (i) its execution and delivery of this Agreement and 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
stockholder(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 certificate of limited partnership, partnership agreement, trust agreement,
limited liability company operating agreement, charter or by-laws, as the case
may be, any agreement by which such Partner or any of such Partner's properties
or any of its partners, beneficiaries, trustees or stockholders, 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, trustees, beneficiaries or stockholders, as
the case may be, is or are subject, (iii) such Partner is neither a "foreign
person" within the meaning of Section 1445(f) of the Code nor a "foreign
partner" within the meaning of Section 1446(e) of the Code, (iv) except for DGP,
such Partner does not own, directly or indirectly, (a) two percent (2%) or more
of the total combined voting power of all classes of stock entitled to vote, or
two percent (2%) or more of the total number of shares of all classes of stock,
of any corporation that is a tenant of either the General Partner or the
Partnership or (b) an interest of two percent (2%) or more in the assets or net
profits of any tenant of the General Partner or the Partnership and (v) this
Agreement has been duly executed and delivered by such Partner and is binding
upon, and enforceable against, such Partner in accordance with its terms.
C. Each Partner represents, warrants and agrees that it has acquired
and continues to hold its interest in the Partnership for its own account for
investment only and not for the purpose of, or with a view toward, the resale or
distribution of all or any part thereof, nor with a view toward selling or
otherwise distributing such interest or any part thereof at any particular time
or under any predetermined circumstances. Each Partner further represents and
warrants that it is a sophisticated investor, able and accustomed to handling
sophisticated financial matters for itself, particularly real estate
investments, and that it has a sufficiently high net worth that it does not
anticipate a need for the funds it has invested in the Partnership in what it
understands to be a highly speculative and illiquid investment.
D. Each Limited Partner, other than ▇▇▇▇▇ ▇. ▇▇▇▇▇, Dallas Price,
those persons or entities who Constructively Own the Partnership Units owned by
the Prices, and any other Limited Partner to whom the General Partner has
granted an exception in its sole discretion to this Section 3.4.D (but, with
respect to any such other Limited Partner, only to the extent of the exception
so granted by the General Partner), further represents, warrants and agrees as
follows:
(i) At any time a Person actually owns or Constructively Owns a
25% or greater capital interest or profits interest in the Partnership,
such Person does not and will not, without the prior written consent of the
General Partner, (a) actually own or Constructively Own (1) with respect to
any Tenant that is a corporation, any stock of such Tenant and (2) with
respect to
21
any Tenant that is not a corporation, any interests in either the assets or
net profits of such Tenant; or (b) actually own or Constructively Own any
stock in the General Partner, other than any REIT Shares or other shares of
capital stock of the General Partner such Person may actually or
Constructively acquire (1) as a result of an exchange of Tendered Units
pursuant to Section 8.6 or (2) upon the exercise of options granted or
-----------
delivery of REIT Shares pursuant to any Stock Incentive Plan, in each case
subject to the applicable ownership limitations with respect to such shares
of capital stock as set forth in the Charter.
(ii) Upon request of the General Partner, such Limited Partner
will disclose to the General Partner the amount of REIT Shares or other
shares of capital stock of the General Partner that it actually owns or
Constructively Owns.
(iii) Such Limited Partner understands that if, for any reason,
(a) the representations, warranties or agreements set forth in Section
-------
3.4.D(i) are violated or (b) the Partnership's actual ownership or
--------
Constructive Ownership of REIT Shares or other shares of capital stock of
the General Partner violates the limitations set forth in the Charter, then
(x) some or all of the redemption or exchange rights of the Limited
Partners may become non-exercisable, and (y) some or all of such shares
owned by the Limited Partners and/or some or all of the Partnership Units
owned by the Limited Partners may be automatically transferred to a trust
for the benefit of a charitable beneficiary, as provided in the Charter and
Exhibit D of this Agreement, respectively.
E. The representations and warranties contained in Sections 3.4.A,
3.4.B, 3.4.C, and 3.4.D hereof shall survive the execution and delivery of this
Agreement by each Partner and the dissolution, liquidation and termination of
the Partnership.
F. Each 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, which 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.
ARTICLE 4.
CAPITAL CONTRIBUTIONS
Section 4.1. Capital Contributions of the Partners.
-------------------------------------
At the time of execution of this Agreement, the Partners shall make or
shall have made Capital Contributions as set forth in Exhibit A to this
Agreement. The Partners shall own Partnership Units of the class or series and
in the amounts set forth in Exhibit A and shall have a Percentage Interest in
the Partnership as set forth in Exhibit A, which Percentage Interest shall be
adjusted in Exhibit A from time to time by the General Partner to the extent
necessary to accurately reflect exchanges, redemptions, Capital Contributions,
the issuance of additional Partnership Units or similar events having an effect
on a Partner's Percentage Interest. Except as
22
required by law or as otherwise provided in Sections 4.5, 4.6 and 10.5, the
Partners shall have no obligation to make any additional Capital Contributions
or loans to the Partnership. Unless otherwise specified by the General Partner
at the time of the creation of any class of Partnership Interests, such
Partnership Interests shall be Common Units and the corresponding class or
series of capital stock for any Partnership Units issued shall be REIT Shares.
Section 4.2. Additional Capital Contributions Generally.
------------------------------------------
Except as otherwise required by law or pursuant to this Article 4, no
Partner shall be required or permitted to make any additional capital
contributions to the Partnership.
Section 4.3. Loans by Partners.
-----------------
Except as otherwise provided in Section 4.5, no Partner shall be
required or permitted to make any loans to the Partnership.
Section 4.4. Loans by Third Parties.
----------------------
Subject to Section 4.5, the Partnership may incur Debt, or enter into
other similar credit, guarantee, financing or refinancing arrangements for any
purpose (including, without limitation, in connection with any further
acquisition of Properties) from any Person that is not the General Partner upon
such terms as the General Partner determines appropriate; provided that, the
Partnership shall not incur any Debt under which a breach, violation or default
would be deemed to occur by virtue of the transfer of any Limited Partnership
Interest or General Partner Interest; and, provided, further, that no prepayment
prior to the tenth anniversary of the Effective Date shall reduce the aggregate
principal amount of Debt of the Partnership below $10,000,000, and any Debt
which refinances Debt outstanding upon the closing of the initial public
offering, shall be non-recourse to the General Partner, except to the extent
otherwise agreed to by the Consent of the Limited Partners.
Section 4.5. Additional Funding 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 of additional Properties or for such other purposes
as the General Partner may determine. Additional Funds may be raised by the
Partnership, at the election of the General Partner, in any manner provided in,
and in accordance with, the terms of this Section 4.5. No Person shall have any
preemptive, preferential or similar right or rights to subscribe for or acquire
any Partnership Interest, except as set forth in this Section 4.5.
B. Additional General Partner Capital Contributions. Upon written
------------------------------------------------
notice (the "Funding Notice") to the Common Limited Partners of the need for
Additional Funds and the anticipated source(s) thereof, the General Partner may,
or, to the extent the General Partner raises all or any portion of the
Additional Funds through the sale or other issuance of REIT Shares or other
equity interests in the General Partner, the General Partner shall, contribute
the Additional Funds to the capital of the Partnership in exchange for General
Partner Interests;
23
provided, that, the proceeds of the initial public offering of REIT Shares may
be loaned to the Partnership on such terms as are described in the final
prospectus for such offering with the Consent of the Limited Partners, and,
provided further, that no Funding Notice need be given with respect to (i) the
funds received in consideration for REIT Shares or other interests issued by the
General Partner pursuant to the Stock Incentive Plan or (ii) REIT Shares or
other interests contributed to the Partnership pursuant to the Stock Incentive
Plan. The obligations of the General Partner with respect to Additional Funds
shall not apply to the issuance of REIT Shares or other equity interests of the
General Partner the proceeds of which are used by the General Partner to acquire
Common Units pursuant to Section 8.6.
C. General Partner Loans. Upon delivery of a Funding Notice to the
---------------------
Common Limited Partners, the General Partner may, or, to the extent the General
Partner enters into a Funding Debt, the General Partner shall, lend the
Additional Funds to the Partnership (a "General Partner Loan"); provided,
--------
however, that the General Partner shall not be obligated to lend the net
-------
proceeds of any Funding Debt to the Partnership in a manner that would be
inconsistent with the General Partner's ability to remain qualified as a REIT.
If the General Partner enters into such a Funding Debt, the General Partner Loan
will consist of the net proceeds from such Funding Debt and will be on
comparable terms and conditions, including interest rate, repayment schedule and
costs and expenses, as shall be applicable with respect to or incurred in
connection with such Funding Debt. Otherwise, all General Partner Loans made
pursuant to this Section 4.5 shall be on terms and conditions no less favorable
to the Partnership than would be available to the Partnership from any third
party. Notwithstanding any other provision of this Section 4.5, the Partners
acknowledge that, except with the Consent of the Limited Partners, all loans
from third parties relating to, or for use by, the Partnership, shall be
borrowed by the Partnership and not by the General Partner. Notwithstanding the
foregoing, in the event that the General Partner incurs Debt secured solely by
the General Partner Properties and personal property incident thereto in an
amount such that the customary loan-to-value ratio for non-recourse debt secured
by such properties is not exceeded, the proceeds of such incurrence need not be
contributed or loaned to the Partnership but may be used for such purpose as the
General Partner determines.
D. Additional Capital Contributions. Subject to the prior delivery
--------------------------------
of a Funding Notice, the General Partner may raise all or any portion of the
Additional Funds by accepting additional Capital Contributions of cash. The
General Partner also may accept additional Capital Contributions of real
property or any other non-cash assets. In connection with any such additional
Capital Contributions (of cash or property), and subject to Section 16.5 hereof,
the General Partner is hereby authorized to cause the Partnership from time to
time to issue to Partners (including the General Partner) or other Persons
(including, without limitation, in connection with the contribution of property
to the Partnership) additional Partnership Units or other Partnership Interests
in one or more classes, or one or more series of any of such classes, with such
designations, preferences and relative, participating, optional or other special
rights, powers, and duties, including rights, powers, and duties senior to then
existing Limited Partnership Interests, all as shall be determined by the
General Partner in its sole and absolute discretion subject to Delaware law, and
as set forth by amendment to this Agreement, including without limitation, (i)
the allocations of items of Partnership income, gain, loss, deduction, and
24
credit to such class or series of Partnership Interests; (ii) the right of each
such class or series of Partnership Interests to share in Partnership
distributions; (iii) the rights of each such class or series of Partnership
Interests upon dissolution and liquidation of the Partnership; and (iv) the
right to vote, including, without limitation, the Limited Partner approval
rights set forth in Section 11.2.A hereof; provided that no such additional
-------------
Partnership Units or other Partnership Interests shall be issued to the General
Partner unless (a) the additional Partnership Interests are issued in connection
with the grant, award, or issuance of shares of the General Partner pursuant to
Section 4.5.B above, which shares have designations, preferences, and other
rights (except voting rights) such that the economic interests attributable to
such shares are substantially similar to the designations, preferences and other
rights of the additional Partnership Interests issued to the General Partner in
accordance with this Section 4.5.D, (b) the additional Partnership Interests are
issued to all Partners holding Partnership Interests in the same class in
proportion to their respective Percentage Interests in such class, (c) the
additional Partnership Interests are issued in connection with the General
Partner's contribution of all or some of the General Partner Properties and
personal property reasonably incident thereto, or (d) the additional Partnership
Interests are issued with the Consent of the Limited Partners; provided further
-------- -------
that no additional Partnership Interests other than Common Units shall be issued
after the date of this Agreement without the unanimous consent of all Common
Limited Partners. In the event that the Partnership issues additional
Partnership Interests pursuant to this Section 4.5.D, the General Partner shall
make such revisions to this Agreement (including but not limited to the
revisions described in Section 5.5, Section 6.2.C, and Section 8.6.H) as it
determines are necessary to reflect the issuance of such additional Partnership
Interests.
E. Preemptive Rights of Partners. The Funding Notice delivered by
-----------------------------
the General Partner prior to its making or accepting (on behalf of the
Partnership) any additional cash Capital Contributions pursuant to either
Section 4.5.B or 4.5.D herein but not pursuant to the Stock Incentive Plan shall
contain the total amount of additional Capital Contributions sought to be made
to the Partnership, and the terms and conditions pertaining thereto. Each Common
Limited Partner may elect to make an additional Capital Contribution not to
exceed the product of (i) the total amount of additional Capital Contributions
being sought, and (ii) such Common Limited Partner's Percentage Interest (with
---
such product deemed the "Pro Rata Contribution"). Such election shall be made,
if at all, by providing written notice thereof (the "Election Notice") to the
General Partner within ten (10) days after delivery of the Funding Notice.
Failure to respond to such notice shall be deemed to be an election not to make
such Capital Contribution. Such Election Notice shall contain the amount of the
additional Capital Contribution, if any, the Common Limited Partner is to make
(such additional Capital Contribution not to exceed the respective Pro Rata
Contribution of such Common Limited Partner) equal to all or any portion of its
Pro Rata Contribution (with all or such portion thereof that such Common Limited
Partner elects to make hereinafter referred to as the "Preemptive
Contribution").
F. Percentage Interest Adjustments in the Case of Capital
------------------------------------------------------
Contributions for Partnership Units. Upon the acceptance of additional Capital
-----------------------------------
Contributions in exchange for any class or series of Partnership Units, the
Percentage Interest related thereto shall be equal to a fraction, the numerator
of which is equal to the amount of cash and the Agreed Value of the Property
contributed as of the Business Day immediately preceding the date on which the
25
additional Capital Contributions are made (an "Adjustment Date") and the
denominator of which is equal to the sum of (i) the Deemed Value of the
Partnership Interests of such class or series (computed as of the Business Day
immediately preceding the Adjustment Date) and (ii) the aggregate amount of cash
and the Agreed Value of the property contributed to the Partnership on such
Adjustment Date in respect of such class or series. The Percentage Interest of
each other Partner holding Partnership Interests of such class or series not
making a full pro rata Capital Contribution shall be adjusted to equal a
--- ----
fraction, the numerator of which is equal to the sum of (i) the Deemed
Partnership Interest Value of such Limited Partner in respect of such class or
series (computed as of the Business Day immediately preceding the Adjustment
Date) and (ii) the amount of cash and the Agreed Value of the property
contributed by such Partner to the Partnership in respect of such class or
series as of such Adjustment Date, and the denominator of which is equal to the
sum of (i) the Deemed Value of the Partnership Interests of such class or series
(computed as of the Business Day immediately preceding the Adjustment Date),
plus (ii) the aggregate amount of cash and the Agreed Value of the property
----
contributed to the Partnership on such Adjustment Date in respect of such class
or series. Notwithstanding the foregoing, solely for purposes of calculating a
Partner's Percentage Interest pursuant to this Section 4.3.F, (i) in the case of
cash Capital Contributions by the General Partner, such Capital Contributions
will be deemed to equal the cash contributed by the General Partner plus, in the
case of cash contributions funded by an offering of REIT Shares or other shares
of capital stock of the General Partner, the offering costs attributable to the
cash contributed to the Partnership, (ii) in the case of the contribution of
Properties (or any portion thereof) by the General Partner which were acquired
by the General Partner in exchange for REIT Shares immediately prior to such
contribution, the General Partner shall be issued a number of Partnership Units
equal to the number of REIT Shares issued by the General Partner in exchange for
such properties, the Partnership Units held by the other Partners shall not be
adjusted, and the Partners' Percentage Interests shall be adjusted accordingly,
and (iii) in the case of a contribution of all or any portion of the General
Partner Properties and any personal property reasonably incident thereto by the
General Partner, the Percentage Interest related to such Capital Contribution
shall be determined in good faith by the Board of Directors. The General Partner
shall promptly give each Partner written notice of its Percentage Interest, as
adjusted.
G. Special Supplemental Capital Contribution by the General Partner.
----------------------------------------------------------------
Notwithstanding the other provisions contained in this Article 4, immediately
following the closing of the General Partner's acquisition of an interest in
certain golf course properties and related assets (the "Purchased Assets") from
Golf Enterprises, Inc., a Kansas corporation ("GEI"), pursuant to that certain
Asset Purchase Agreement and Agreement and Plan of Merger (the "Acquisition
Agreement"), dated as of February 2, 1996 and amended on February 16, 1996 by
that certain First Amendment to the Asset Purchase Agreement and Plan of Merger,
among the General Partner, GEI Acquisition Corporation, a Kansas corporation
("Newco") and GEI, the General Partner contributed all of its interest in the
Purchased Assets collectively as a special supplemental Capital Contribution to
the Partnership. Upon such Capital Contribution, (i) the General Partner was
issued that number of Partnership Units equal to the number of shares of
Purchaser Common Stock (as defined in the Acquisition Agreement) issued as
Acquisition Consideration (as defined in the Acquisition Agreement) pursuant to
the Acquisition Agreement, (ii) the Agreed Value and the Gross Asset Value of
the Contributed Property was deemed to be
26
equal to $40,786,649, (iii) Exhibit A to this Agreement was appropriately
amended to reflect such issuance and the corresponding adjustments in the
Percentage Interest of each of the Partners, as well as the Agreed Value and the
Gross Asset Value of the Contributed Property, and (iv) the Capital Account of
the General Partner was appropriately adjusted. This Paragraph G of Section 4.5
shall not be construed to permit any Capital Contribution other than the
contribution of the General Partner's interest in the Purchased Assets by the
General Partner.
Section 4.6. Stock Incentive Plan.
--------------------
If at any time or from time to time the General Partner is required,
pursuant to the Stock Incentive Plan, to make a contribution of REIT Shares to
the Partnership, such contribution shall be treated as an additional Capital
Contribution as provided in Section 4.5, in an amount equal to the Value of a
REIT Share (provided, that, for these purposes, only the trading day on which
the General Partner contributes such REIT Shares to the Partnership shall be
considered) multiplied by the number of REIT Shares contributed by the General
Partner to the Partnership. In consideration for such contribution, the General
Partner's Capital Account shall be adjusted as provided in this Agreement and
the General Partner shall be issued a number of Partnership Units equal to the
number of REIT Shares so contributed. Furthermore, if at any time or from time
to time the General Partner issues or sells REIT Shares pursuant to the Stock
Incentive Plan (other than a contribution to the Partnership as provided above),
it may contribute the proceeds therefrom to the Partnership as an additional
Capital Contribution as provided in Section 4.5. In consideration for such
contribution, the General Partner's Capital Account shall be adjusted as
provided in this Agreement and the General Partner shall be issued a number of
Partnership Units equal to the number of REIT Shares so issued or sold.
Notwithstanding the foregoing, the preemptive rights provided in Section 4.5.F
shall not apply to the Capital Contributions described above in this Section
4.6.
ARTICLE 5.
DISTRIBUTIONS
Section 5.1. Requirement and Characterization of Distributions.
-------------------------------------------------
The General Partner shall cause the Partnership to distribute
quarterly all, or such portion as the General Partner may in its discretion
determine, of Available Cash generated by the Partnership to the Partners who
are Partners on the applicable record date with respect to such distribution,
(1) first, with respect to any Partnership Interests that are entitled to any
preference in distribution, in accordance with the rights of such class of
Partnership Interests (and within such class, pro rata in proportion to the
respective Percentage Interests on the applicable record date), and, (2) second,
with respect to Partnership Interests that are not entitled to any preference in
distribution, pro rata to each such class on a quarterly basis and in accordance
with the terms of such class to the Partners who are Partners of such class on
the Partnership Record Date with respect to such distribution (and within each
such class, pro rata in proportion with the respective Percentage Interests on
such Partnership Record Date). Unless otherwise expressly provided for herein
or in an agreement at the time a new class of Partnership Interests is created
in accordance with Article 4 hereof, no Partnership Interest shall be entitled
to a distribution in preference to
27
any other Partnership Interest. The General Partner shall take such reasonable
efforts, as determined by it in its sole and absolute discretion and consistent
with its qualification as a REIT, (i) to cause the Partnership to distribute
sufficient amounts to enable the General Partner to pay stockholder dividends
that will (a) satisfy the requirements for qualifying as a REIT under the Code
and Regulations ("REIT Requirements"), and (b) avoid any federal income or
excise tax liability of the General Partner, except to the extent that a
distribution pursuant to clause (b) would prevent the Partnership from making a
distribution to the holders of Series A Preferred Units in accordance with
Section 16.2 and (ii) to distribute Available Cash to the Limited Partners so as
to preclude any such distribution or portion thereof from being treated as part
of a sale of property to the Partnership by a Limited Partner under Section 707
of the Code or the Regulations thereunder; provided that the General Partner and
--------
the Partnership shall not have liability to a Limited Partner under any
circumstances as a result of any distribution to a Limited Partner being so
treated.
Section 5.2. Distributions in Kind.
---------------------
Except as expressly provided herein, no right is given to any Partner
to demand and receive property other than cash. The General Partner may
determine, in its sole and absolute discretion, to make a distribution in kind
to the Partners of Partnership assets, and such assets shall be distributed in
such a fashion as to ensure that the fair market value is distributed and
allocated in accordance with Articles 5, 6 and 10; provided, however, that, in
-------- -------
such case, the General Partner shall distribute only cash to the Series A
Limited Partners.
Section 5.3. Amounts Withheld.
----------------
All amounts withheld pursuant to the Code or any provisions of any
state or local tax law and Section 10.5 hereof with respect to any allocation,
payment or distribution to the General Partner, the Limited Partners or
Assignees shall be treated as amounts distributed to the General Partner,
Limited Partners, or Assignees, as the case may be, pursuant to Section 5.1 for
all purposes under this Agreement.
Section 5.4. Distributions Upon Liquidation.
------------------------------
Proceeds from a Terminating Capital Transaction shall be distributed
to the Partners in accordance with Section 13.2.
Section 5.5. Distributions to Reflect Issuance of Additional
-----------------------------------------------
Partnership Interests.
---------------------
In the event that the Partnership issues additional Partnership
Interests to the General Partner or any Additional Limited Partner pursuant to
Section 4.5.D or 4.6, the General Partner shall make such revisions to this
Article 5 as it determines are necessary to reflect the issuance of such
additional Partnership Interests.
28
ARTICLE 6.
ALLOCATIONS
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 fiscal year of the Partnership as of the end of
each such year. Subject to the other provisions of this Article 6, an
allocation to a Partner 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. Except as otherwise provided in this Article 6,
----------
Net Income and Net Loss shall be allocated to each of the Partners holding the
same class of Partnership Interests in accordance with their respective
Percentage Interest of such class.
B. 1. Net Income. Net Income for any Partnership Year shall be
----------
allocated in the following manner and order of priority:
(a) First, 100% to the General Partner in an amount equal to the
remainder, if any, of the cumulative Net Losses allocated to the General Partner
pursuant to Section 6.2.B.2(c) for all prior Partnership Years minus the
cumulative Net Income allocated to the General Partner pursuant to this Section
6.2.B.1(a) for all prior Partnership Years;
(b) Second, 100% to the Series A Limited Partners in an amount equal to
the remainder, if any, of the cumulative Net Losses allocated to the Series A
Limited Partners pursuant to Section 6.2.B.2(b) for all prior Partnership Years
minus the cumulative Net Income allocated to the Series A Limited Partners
pursuant to this Section 6.2.B.1(b) for all prior Partnership Years;
(c) Third, 100% to the General Partner and the Common Limited Partners in
an amount equal to the remainder, if any, of the cumulative Net Losses allocated
to each such Partner pursuant to Section 6.2.B.2(a) for all prior Partnership
Years minus the cumulative Net Income allocated to each Partner pursuant to this
Section 6.2.B.1(c) for all prior Partnership Years;
(d) Fourth, 100% to the Series A Limited Partners until the Series A
Limited Partners have been allocated an amount equal to the remainder, if any,
of (i) the cumulative Priority Return to the last day of the current Partnership
Year or to the date of redemption, to the extent Series A Preferred Units are
redeemed during such year, minus (ii) the cumulative Net Income allocated to the
Series A Limited Partners pursuant to this Section 6.2.B.1(d) for all prior
Partnership Years;
(e) Fifth, 100% to the General Partner and the Common Limited Partner in
accordance with their respective Percentage Interests of such class.
29
2. Net Losses. Net Losses for any Partnership Year shall be
----------
allocated in the following manner and order of priority.
(a) First, 100% to the General Partner and the Common Limited Partners in
accordance with their respective Percentage Interests (to the extent consistent
with this Section 6.2.B.2(a)) until the Adjusted Capital Account of each such
Partner is zero (not taking into account the General Partner's deemed obligation
to restore a deficit balance in its Capital Account pursuant to Regulations
Section 1.704-1(b)(2)(ii)(c)(2));
(b) Second, 100% to the Series A Limited Partners until the Adjusted
Capital Account of the Series A Limited Partners are zero; and
(c) Third, 100% to the General Partner.
C. Notwithstanding Sections 6.2.A. and B, any item of deduction
attributable to payments made by the Partnership to or on behalf of ▇▇▇▇ ▇.
Major ("Major") pursuant to (i) that certain Non-Qualified Stock Option
Agreement (as amended from time to time), dated as of April 30, 1997, by and
between ▇▇▇▇▇ ▇. ▇▇▇▇▇ ("Price"), Major, and the Partnership, with respect to
its rights and covenants contained therein, or (ii) that certain Letter
Agreement, dated as of January 28, 1998, by and between Price, Major, and the
Partnership, with respect to its rights and covenants contained therein, shall
be specially allocated to Price in an amount equal to 100% of such item of
deduction.
D. Allocations to Reflect Issuance of Additional Partnership
---------------------------------------------------------
Interests. In the event that the Partnership issues additional Partnership
---------
Interests to the General Partner or any Additional Limited Partner pursuant to
Section 4.5 or 4.6 hereof, the General Partner shall make such revisions to this
Section 6.2 as it determines are necessary to reflect the terms of the issuance
of such additional Partnership Interests, including making preferential
allocations to certain classes of Partnership Interests, subject to the terms of
the Series A Preferred Units.
Section 6.3. Additional Allocation Provisions.
--------------------------------
Notwithstanding the foregoing provisions of this Article 6:
A. Regulatory Allocations.
----------------------
(i) Minimum Gain Chargeback. Except as otherwise provided in
-----------------------
Regulations Section 1.704-2(f), notwithstanding the provisions of Section
6.2 of the Agreement, or any other provision of this Article 6, if there is
a net decrease in Partnership Minimum Gain during any fiscal year, each
Partner shall be specially allocated items of Partnership income and gain
for such year (and, if necessary, subsequent years) in an amount equal to
such Partner's share of the net decrease in Partnership Minimum Gain, as
determined under Regulations Section 1.704-2(g). Allocations pursuant to
the previous sentence shall be made in proportion to the respective amounts
required to be allocated to each Partner pursuant thereto. The items to be
allocated shall be determined in accordance with Regulations Sections
1.704-2(f)(6)
30
and 1.704-2(j)(2). This Section 6.3.A(i) is intended to qualify as a
"minimum gain chargeback" within the meaning of Regulation Section 1.704-
2(f) which shall be controlling in the event of a conflict between such
Regulation and this Section 6.3.A(i).
(ii) Partner Minimum Gain Chargeback. Except as otherwise provided
-------------------------------
in Regulations Section 1.704-2(i)(4), and notwithstanding the provisions of
Section 6.2 of the Agreement or any other provision of this Article 6
(except Section 6.3.A(i)), if there is a net decrease in Partner Minimum
Gain attributable to a Partner Nonrecourse Debt during any fiscal year,
each Partner 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 Partner's 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). Allocations pursuant to
the previous sentence shall be made in proportion to the respective amounts
required to be allocated to each General Partner and Limited Partner
pursuant thereto. 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.A(ii) is intended to qualify as a "chargeback of partner
nonrecourse debt minimum gain" within the meaning of Regulation Section
1.704-2(i) which shall be controlling in the event of a conflict between
such Regulation and this Section 6.3.A(ii).
(iii) Nonrecourse Deductions and Partner Nonrecourse Deductions.
---------------------------------------------------------
Any Nonrecourse Deductions for any fiscal year shall be specially allocated
to the Partners in accordance with their Percentage Interests attributable
to such deductions. Any Partner Nonrecourse Deductions for any fiscal year
shall be specially allocated to the Partner(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
Sections 1.704-2(b)(4) and 1.704-2(i).
(iv) Qualified Income Offset. If any Partner 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 the Partner in an amount and manner sufficient to
eliminate, to the extent required by such Regulations, the Adjusted Capital
Account Deficit of the Partner as quickly as possible provided that an
allocation pursuant to this Section 6.3.A(iv) shall be made if and only to
the extent that such Partner 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.A(iv) were not in the Agreement. It
is intended that this Section 6.3.A(iv) qualify and be construed as a
"qualified income offset" within the meaning of Regulations 1.704-
1(b)(2)(ii)(d), which shall be controlling in the event of a conflict
between such Regulations and this Section 6.3.A(iv).
31
(v) Gross Income Allocation. In the event any Partner has a deficit
-----------------------
Capital Account at the end of any fiscal year which is in excess of the sum
of (1) the amount (if any) such Partner is obligated to restore to the
Partnership, and (2) the amount such Partner is deemed to be obligated to
restore pursuant to Regulations Section 1.704-1(b)(2)(ii)(c) or the
penultimate sentences of Regulations Sections 1.704-2(g)(1) and 1.704-
2(i)(5), each such Partner shall be specially allocated items of
Partnership income and gain in the amount of such excess as quickly as
possible, provided that an allocation pursuant to this Section 6.3.A(v)
shall be made if and only to the extent that such Partner 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.A(v) and Section 6.3.A(iv) were not in the Agreement.
(vi) Limitation on Allocation of Net Loss. To the extent any
------------------------------------
would cause or increase an Adjusted Capital Account Deficit as to any
Partner, such allocation of Net Loss shall be reallocated among the other
Partners in accordance with their respective Percentage Interests, subject
to the limitations of this Section 6.3.A(vi).
(vii) Section 754 Adjustment. To the extent 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 Partner in complete liquidation of his 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 Partners in accordance with their
interests in the Partnership in the event that Regulations Section 1.704-
1(b)(2)(iv)(m)(2) applies, or to the Partners to whom such distribution was
made in the event that Regulations Section 1.704-1(b)(2)(iv)(m)(4) applies.
(viii) Curative Allocation. The allocations set forth in Sections
-------------------
6.3.A(i), (ii), (iii), (iv), (v), (vi) and (vii) (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 Sections 6.1 and 6.2, the Regulatory
Allocations shall be taken into account in allocating other items of
income, gain, loss and deduction among the Partners so that, to the extent
possible, the net amount of such allocations of other items and the
Regulatory Allocations to each Partner shall be equal to the net amount
that would have been allocated to each such Partner if the Regulatory
Allocations had not occurred.
B. For purposes of determining a Partner's proportional share of the
"excess nonrecourse liabilities" of the Partnership within the meaning of
Regulations Section 1.752-3(a)(3), each Partner's interest in Partnership
profits shall be such Partner's Percentage Interest, provided that the Series A
Limited Partners shall have no share of such excess nonrecourse liabilities.
32
Section 6.4. Tax Allocations.
---------------
A. In General. Except as otherwise provided in this Section 6.4, for
----------
income tax purposes each item of income, gain, loss and deduction (collectively,
"Tax Items") shall be allocated among the Partners 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.
B. Allocations Respecting Section 704(c) Revaluations.
--------------------------------------------------
Notwithstanding Section 6.4.A, Tax Items with respect to Partnership property
that is contributed to the Partnership by a Partner shall be shared among the
Partners for income tax purposes pursuant to Regulations promulgated under
Section 704(c) of the Code, so as to take into account the variation, if any,
between the basis of the property to the Partnership and its initial Gross Asset
Value. With respect to Partnership property that is initially contributed to the
Partnership upon its formation, such variation between basis and initial Gross
Asset Value shall be taken into account under the "traditional method" as
described in Regulations Section 1.704-3(b). With respect to properties
subsequently contributed to the Partnership, the Partnership shall account for
such variation under any method approved under Section 704(c) of the Code and
the applicable regulations as chosen by the General Partner. In the event the
Gross Asset Value of any Partnership asset is adjusted pursuant to subparagraph
(b) of the definition of Gross Asset Value (provided in Article 1 of this
Agreement), subsequent allocations of Tax Items with respect to such asset shall
take account of the variation, if any, between the adjusted basis of such asset
and its Gross Asset Value in the same manner as under Section 704(c) of the Code
and the applicable regulations consistent with the requirements of Regulations
Section 1.704-1(b)(2)(iv)(g) using any method approved under Section 704(c) of
the Code and the applicable regulations as chosen by the General Partner.
ARTICLE 7.
MANAGEMENT AND OPERATIONS OF BUSINESS
Section 7.1. Management.
----------
A. Except as otherwise expressly provided in this Agreement, all
management powers over the business and affairs of the Partnership are
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. The General Partner may not be removed
by the Limited Partners with or without cause. In addition to the powers now or
hereafter granted a general partner of a limited partnership under applicable
law or which are granted to the General Partner under any other provision of
this Agreement, the General Partner, subject to the other provisions hereof,
shall have full power and authority to do all things deemed necessary or
desirable by it 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, including, without limitation:
(1) the making of any expenditures, the lending of money (including,
without limitation the Participating Mortgage Loans described in
the final prospectus with respect to the initial public offering
of REIT Shares),
33
borrowing of money (including, without limitation, making
prepayments on loans and borrowing money to permit the
Partnership to make distributions to its Partners in such amounts
as will permit the General Partner (so long as the General
Partner has determined to qualify as a REIT) to avoid the payment
of any federal income tax (including, for this purpose, any
excise tax pursuant to Section 4981 of the Code), to make
distributions to its stockholders sufficient to permit the
General Partner to maintain REIT status and to satisfy any Put
rights pursuant to Section 8.6), the assumption or guarantee of,
or other contracting for, indebtedness and other liabilities, the
issuance of evidences of indebtedness (including the securing of
same by mortgage, deed of trust or other lien or encumbrance on
the Partnership's assets) and the incurring of any obligations it
deems necessary for the conduct of the activities of the
Partnership; provided, that all such borrowing, incurrence of
Debt and prepayments shall be subject to the limitations set
forth in Sections 4.4 and 4.5;
(2) the making of tax, regulatory and other filings, or rendering of
periodic or other reports to governmental or other agencies
having jurisdiction over the business or assets of the
Partnership;
(3) the acquisition, disposition, mortgage, pledge encumbrance,
hypothecation or exchange of any assets of the Partnership or the
merger or other combination of the Partnership with or into
another entity; provided, that, in the event of any sale,
exchange, disposition or other transfer of any property of the
Partnership contributed at the time of the closing of the initial
public offering of REIT Shares, occurring prior to the end of the
fifteenth (15th) year following the Effective Date, the
Partnership shall no later than the end of the calendar quarter
in which such sale, exchange, disposition or other transfer
becomes a taxable event to Partners effect a distribution of cash
(or, at the option of the General Partner, a promissory note,
bearing interest at the then approved price per annum equal to
the dividend yield on the REIT Shares, based on the most recent
quarterly dividend and the Value of a REIT Share as of the date
of issuance of such note), and due and payable as soon as
reasonably practicable but in no event later than 90 days after
the date of issuance), in addition to its then regular quarterly
distribution, in an amount such that the pro rata share thereof
--- ----
received by each Partner shall equal or exceed the total
liability of such Partner for federal, state and local income and
franchise taxes resulting from such sale, exchange, disposition
or other transfer and from such distribution as determined in
accordance with the books and records of the Partnership (which
determination will be conclusive and binding absent manifest
error); provided, further, that any Partner may elect not to
-------- -------
receive all or any portion of such additional distribution and in
such event, although such Partner's Capital Account will not be
reduced to the extent that no distribution is received by such
Partner, the Partner's Percentage
34
Interest or the number of Partnership Units considered owned by
such Partner shall not be adjusted, it being the intent that the
sole effect of the election not to receive a distribution will be
to increase the amount of cash or other property to be received
by such Partner upon a dissolution of the Partnership; and
provided, further, however, that any Partner may elect not to
-------- ------- -------
receive all or any portion of such distribution in cash but in
lieu thereof to receive a promissory note bearing interest at a
rate per annum equal to the annualized dividend yield on the REIT
Shares based on the most recent quarterly dividend and the Value
of a REIT Share as of the date of issuance of such note and due
and payable on the third anniversary of issuance.
(4) the mortgage, pledge, encumbrance or hypothecation of any assets
of the Partnership, and the use of the assets of the Partnership
(including, without limitation, cash on hand) for any purpose
consistent with the terms of this Agreement and on any terms it
sees fit, including, without limitation, the financing of the
conduct of the operations of the General Partner or the
Partnership, the lending of funds to other Persons (including,
without limitation, the General Partner (if necessary to permit
the financing or capitalization of a subsidiary of the General
Partner or the Partnership) and any Subsidiaries of the
Partnership) and the repayment of obligations of the Partnership,
any of its Subsidiaries and any other Person in which it has an
equity investment;
(5) the negotiation, execution and performance of any contracts,
leases, conveyances or other instruments that the General Partner
considers useful or necessary to the conduct of the Partnership's
operations or the implementation of the General Partner's powers
under this Agreement;
(6) the distribution of Partnership cash or other Partnership assets
in accordance with this Agreement;
(7) the selection and dismissal of employees of the Partnership
(including, without limitation, employees having titles such as
"president," "vice president," "secretary" and "treasurer"), and
agents, outside attorneys, accountants, consultants and
contractors of the Partnership and the determination of their
compensation and other terms of employment or hiring;
(8) the maintenance of such insurance for the benefit of the
Partnership and the Partners as it deems necessary or
appropriate;
(9) the formation of, or acquisition of an interest in, and the
contribution of property to, any further limited or general
partnerships, joint ventures or other relationships that it deems
desirable (including, without limitation, the acquisition of
interests in, and the contributions of property to, any
35
Subsidiary and any other Person in which it has an equity
investment from time to time); provided that as long as the
General Partner has determined to continue to qualify as a REIT,
the Partnership may not engage in any such formation, acquisition
or contribution that would cause the General Partner to fail to
qualify as a REIT;
(10) the control of any matters affecting the rights and obligations
of the Partnership, including the conduct of litigation and the
incurring of legal expense and the settlement of claims and
litigation, and the indemnification of any Person against
liabilities and contingencies to the extent permitted by law;
(11) the undertaking of any action in connection with the
Partnership's direct or indirect investment in any Person
(including, without limitation, the contribution or loan of funds
by the Partnership to such Persons);
(12) the determination of the fair market value of any Partnership
property distributed in kind using such reasonable method of
valuation as it may adopt, provided that such methods are
otherwise consistent with requirements of this Agreement; and
(13) the enforcement of any rights against any Partner pursuant to
representations, warranties, covenants and indemnities relating
to such Partner's contribution of property or assets to the
Partnership.
B. Each of the Limited Partners agrees that the General Partner is
authorized to execute, deliver and perform the above-mentioned agreements and
transactions on behalf of the Partnership without any further act, approval or
vote of the Partners, notwithstanding any other provisions of this Agreement
(except as provided in Section 7.3), the Act or any applicable law, rule or
regulation. The execution, delivery or performance by the General Partner or
the Partnership of any agreement authorized or permitted under this Agreement
shall not constitute a breach by the General Partner of any duty that the
General Partner may owe 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 (i) casualty, liability and
other insurance on the properties of the Partnership and (ii) liability
insurance for the Indemnities hereunder.
D. At all times from and after the date hereof, the General Partner
may cause the Partnership to establish and maintain working capital 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, other than as expressly set forth in the Contribution
Agreement, shall be under no obligation to, take into account the tax
consequences to any Partner (including the General Partner) of any
36
action taken by the General Partner. The General Partner and the Partnership
shall not have liability to a Partner under any circumstances as a result of an
income tax liability incurred by such Partner as a result of an action (or
inaction) by the General Partner pursuant to its authority under this Agreement.
Section 7.2. Certificate of Limited Partnership.
----------------------------------
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. Subject to the
terms of Section 8.5.A(4) hereof, 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. 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 limited liability) in the State of Delaware any other
state, or the District of Columbia, in which the Partnership may elect to do
business or own property.
Section 7.3. Restrictions on General Partner's Authority.
-------------------------------------------
A. The General Partner may not take any action in contravention of
this Agreement, including, without limitation:
(1) take any action that would make it impossible to carry on the
ordinary business of the Partnership, except as otherwise
provided in this Agreement;
(2) possess Partnership property, or assign any rights in specific
Partnership property, for other than a Partnership purpose except
as otherwise provided in this Agreement;
(3) admit a Person as a Partner, except as otherwise provided in this
Agreement;
(4) perform any act that would subject a Limited Partner to liability
as a general partner in any jurisdiction or any other liability
except as provided herein or under the Act; or
(5) enter into any contract, mortgage, loan or other agreement that
prohibits or restricts, or has the effect of prohibiting or
restricting, the ability of a Limited Partner to exercise its
rights set forth herein to effect in full an Exchange or a Put or
an exchange or redemption pursuant to Section 16.7, except with
the written consent of such Limited Partner (for purposes of
37
clarification, contracts with respect to the issuance of
additional Partnership Interests pursuant to Section 4.5.D which
prohibit or restrict such Exchange or Put rights solely by virtue
of the preferences, rights, powers and duties attributable to the
Partnership Interests subject to such contract shall be deemed
not to include such prohibitions or restrictions); provided that
this subparagraph (5) shall not apply to any contract or
agreement with respect to indebtedness under which a Limited
Partner's exercise of a Put or redemption pursuant to Section
16.7 would constitute a default or breach thereunder if such
contract or agreement is or was entered into with a third party
on commercially reasonable terms negotiated on an arms-length
basis (it being agreed that if such default or breach would arise
by virtue of the election by the General Partner to cause the
Partnership to redeem all or a portion of the Series A Preferred
Units for cash pursuant to Section 16.7.A(ii), the General
Partner shall make such election only with respect to Excess
Units as defined in Section 16.7.A(iii)).
B. The General Partner shall not, without the prior Consent of the
Limited Partners, undertake, on behalf of the Partnership, any of the following
actions or enter into any transaction which would have the effect of such
transactions:
(1) except as provided in Section 7.3.C., amend, modify or terminate
this Agreement other than to reflect the admission, substitution,
termination or withdrawal of partners pursuant to Article 12
hereof;
(2) make a general assignment for the benefit of creditors or appoint
or acquiesce in the appointment of a custodian, receiver or
trustee for all or any part of the assets of the Partnership;
(3) institute any proceeding for Bankruptcy on behalf of the
Partnership; or
(4) subject to the rights of transfer provided in Section 11.2,
approve or acquiesce to the transfer of the Partnership Interest
of the General Partner, or admit into the Partnership any
Additional or Substitute General Partners.
C. Notwithstanding Section 7.3.B, the General Partner shall have the
power, without the Consent of the Limited Partners, to amend this Agreement as
may be required to facilitate or implement any of the following purposes:
(1) 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;
38
(2) to reflect the issuance of additional Partnership Interests
pursuant to Sections 4.5.D and 4.6 or the admission,
substitution, termination, or withdrawal of Partners in
accordance with this Agreement;
(3) to reflect a change that is of an inconsequential nature and does
not adversely affect the Limited Partners in any material
respect, or to cure any ambiguity, correct or supplement any
provision in this Agreement not inconsistent with law or with
other provisions, or make other changes with respect to matters
arising under this Agreement, that will not be inconsistent with
law or with the provisions of this Agreement;
(4) 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;
(5) to reflect such changes as are reasonably necessary for the
General Partner to maintain its status as a REIT, including
changes which may be necessary due to a change in applicable law
(or an authoritative interpretation thereof) or a ruling of the
IRS; and
(6) to modify the manner in which Capital Accounts are computed but
only to the extent set forth in the definition of "Capital
Account."
The General Partner will provide notice to the Limited Partners when any action
under this Section 7.3.C is taken.
D. Notwithstanding Sections 7.3.B and 7.3.C hereof, this Agreement
shall not be amended, and no action may be taken by the General Partner, without
the Consent of each Partner adversely affected if such amendment or action would
(i) convert a Limited Partner's interest in the Partnership into a general
partner's interest (except as the result of the General Partner acquiring such
interest), (ii) modify the limited liability of a Limited Partner, (iii) alter
rights of the Partner to receive distributions pursuant to Article 5, Section
7.1.A(3), Section 13.2 or Article 16, or the allocations specified in Article 6
(except as permitted pursuant to Section 4.2, Section 4.5 and Section 7.3.C),
(iv) alter or modify the Exchange Right, Put Right, REIT Shares Amount or Put
Amount as set forth in Sections 8.6 and 11.2, and related definitions thereof,
(v) cause the termination of the Partnership prior to the time set forth in
Sections 2.5 or 13.1, (vi) alter the redemption or exchange rights as set forth
in Sections 16.4 and 16.7 hereof, respectively, or (vii) amend this Section
7.3.D. Further, no amendment may alter the restrictions on the General
Partner's authority set forth elsewhere in this Section 7.3 without the Consent
specified in such section. Any such amendment or action consented to by any
Limited Partner shall be effective as to that Limited Partner, notwithstanding
the absence of such consent by any other Limited Partner.
E. For so long as the Partnership Interests of all of the Limited
Partners of the Partnership equal, in the aggregate, not less than fifteen
percent (15%), the General Partner shall
39
not, without the prior Consent of the Limited Partners, undertake, on behalf of
the Partnership, any of the following actions:
(1) Dissolve the Partnership.
(2) Agree to or consummate any merger, consolidation, reorganization
or other business combination to which the Partnership is a
party, in each case resulting in the disposition by the then
Limited Partners and Assignees of all outstanding Limited
Partnership Interests and interests of Assignees therein in
consideration for (a) cash, (b) debt instruments or other
evidences of indebtedness, (c) other securities issued by a
corporation, partnership or other entity, other than (i) the
General Partner, (ii) the Partnership or (iii) any entity at
least 80% of the total assets of which (on the basis of market
value) are comprised of assets which, immediately prior to such
transaction, were assets of the Partnership, or (d) any
combination of the consideration described in (a), (b) and/or (c)
above.
(3) Sell or otherwise transfer all or substantially all of the assets
of the Partnership.
Section 7.4. Reimbursement of the General Partner.
------------------------------------
A. Except as provided in this Section 7.4 and elsewhere in this
Agreement (including the provisions of Articles 5 and 6 regarding distributions,
payments and allocations to which it may be entitled), the General Partner shall
not be compensated for its services as general partner of the Partnership.
B. Subject to Section 15.11, the General Partner shall be reimbursed
on a monthly basis, or such other basis as the General Partner may determine in
its sole and absolute discretion, for all expenses it incurs relating to the
ownership of interests in and operation of, or for the benefit of, the
Partnership. The Limited Partners acknowledge that the General Partner's sole
business is the ownership of interests in and operation of the Partnership and
the General Partner Properties and personal property reasonably incident thereto
and that all of the General Partner's expenses are incurred for the benefit of
the Partnership; provided that, the General Partner shall not be reimbursed for
-------- ----
expenses it incurs relating to the organization of the Partnership and the
General Partner or the initial public offering or subsequent public offerings of
REIT Shares, other shares of capital stock or Funding Debt by the General
Partner, but shall be reimbursed for expenses it incurs with respect to any
other issuance of additional Partnership Interests pursuant to the provisions
hereof. Such reimbursements shall be in addition to any reimbursement of the
General Partner as a result of indemnification pursuant to Section 7.7 hereof.
C. If and to the extent any reimbursements to the General Partner
pursuant to this Section 7.4 constitute gross income of the General Partner (as
opposed to the repayment of advances made by the General Partner on behalf of
the Partnership), such amounts shall constitute
40
guaranteed payments within the meaning of Section 707(c) of the Code, shall be
treated consistently therewith by the Partnership and all Partners, and shall
not be treated as distributions for purposes of computing the Partners' Capital
Accounts.
Section 7.5. Outside Activities of the General Partner.
-----------------------------------------
A. The General Partner shall not, directly or indirectly, enter into
or conduct any business, other than in connection with the ownership,
acquisition and disposition of Partnership Interests as a General Partner and
the management of the business of the Partnership, its operation as a public
reporting company with a class (or classes) of securities registered under the
Securities Exchange Act of 1934, as amended, its operation as a REIT and such
activities as are incidental to the same. Without the Consent of the Limited
Partners, the General Partner shall not, directly or indirectly, participate in
or otherwise acquire any interest in any real or personal property, except its
General Partner Interest, its minority interest in any Subsidiary Partnership(s)
(held directly or indirectly through a Qualified REIT Subsidiary) that the
General Partner holds in order to maintain such Subsidiary Partnership's status
as a partnership, and such bank accounts, similar instruments or other short-
term investments as it deems necessary to carry out its responsibilities
contemplated under this Agreement and the Charter. In the event the General
Partner desires to contribute cash to any Subsidiary Partnership to acquire or
maintain an interest of 1% or less in the capital of such partnership, the
General Partner may acquire such cash from the Partnership in exchange for a
reduction in the General Partner's Partnership Units, in an amount equal to the
amount of such cash divided by the Value of a REIT Share on the day such cash is
received by the General Partner. Notwithstanding the foregoing, the General
Partner may acquire Properties in exchange for REIT Shares, to the extent such
Properties are immediately contributed by the General Partner to the
Partnership, pursuant to the terms described in Section 4.5.F. Any Limited
-------------
Partner Interests acquired by the General Partner, whether pursuant to exercise
by a Limited Partner of its rights to Exchange or Put or exchange pursuant to
Section 16.7 or otherwise, shall be automatically converted into a General
Partner Interest comprised of an identical number of Partnership Units with the
same rights, priorities and preferences as the class or series acquired. If, at
any time after the Effective Date, the General Partner acquires material assets
(other than on behalf of the Partnership), the definition of "REIT Shares
Amount" shall be adjusted, as reasonably agreed to by the General Partner and
the other Limited Partners, to reflect the relative Value of a share of capital
stock of the General Partner relative to the Deemed Partnership Interest Value
of the related Partnership Unit. The General Partner's General Partner Interest
in the Partnership, its minority interest in any Subsidiary Partnership(s) (held
directly or indirectly through a Qualified REIT Subsidiary) that the General
Partner holds in order to maintain such Subsidiary Partnership's status as a
partnership, and interests in such short-term liquid investments, bank accounts
or similar instruments as the General Partner deems necessary to carry out its
responsibilities contemplated under this Agreement and the Charter are interests
which the General Partner is permitted to acquire and hold for purposes of this
Section 7.5.A.
-------------
B. Notwithstanding the limitations set forth in Section 7.5.A. above,
the Partners agree that the General Partner was permitted to acquire, and may
continue to own, the General Partner Properties and personal property reasonably
incident thereto. In order to create
41
an initial Exchange ratio of one Common Unit for one REIT share, the number of
Common Units held by the General Partner is less than the number of REIT Shares
issued by the General Partner. In addition, the Partners agree that until the
earlier of the fifth (5th) anniversary of the Effective Date or the date on
which all of the General Partner Properties and personal property reasonably
incident thereto is contributed to the Partnership pursuant to Section 4.5.D,
the net fair market value of the General Partner Properties and personal
property incident thereto shall be deemed to appreciate or depreciate at the
same rate as the Properties and, as a result, the one-for-one Exchange ratio
(absent other adjustments) will continue to be appropriate. On the fifth (5th)
anniversary of the Effective Date and every five (5) years thereafter, and upon
the contribution of any portion of the General Partner Properties and personal
property reasonably incident thereto to the Partnership, the Board of Directors
shall in good faith review the value of the portion of the General Partner
Properties and any such personal property then owned by the General Partner as
compared to the Properties, shall make the determination set forth in Section
4.5.D(c) upon any such contribution, and shall, to the extent deemed necessary,
adjust such Exchange ratio to account for value fluctuations.
C. In the event the General Partner exercises its rights under the
Charter to purchase REIT Shares or Preferred Shares, then the General Partner
shall cause the Partnership to purchase from it a number of Partnership Units of
the appropriate class as determined based on, in the case of REIT Shares, an
amount equal to the number of REIT Shares (as adjusted pursuant to Sections
7.5.A or B) so purchased or, in the case of Preferred Shares, an equal number of
Preferred Units which correspond in ranking to the Preferred Shares so
purchased, in each case on the same terms that the General Partner purchased
such REIT Shares or Preferred Shares, as applicable.
Section 7.6. Contracts with Affiliates.
-------------------------
A. The Partnership may lend or contribute to Persons in which it has
an equity investment, and such Persons may borrow funds from the Partnership, on
terms and conditions established in the sole and absolute discretion of the
General Partner. The foregoing authority shall not create any right or benefit
in favor of any Person.
B. Except as provided in Section 7.5.A, the Partnership may transfer
assets to joint ventures, other partnerships, corporations or other business
entities in which it is or thereby becomes a participant upon such terms and
subject to such conditions consistent with this Agreement and applicable law.
C. The General Partner, in its sole and absolute discretion and
without the approval of the Limited Partners, may propose and adopt on behalf of
the Partnership employee benefit plans funded by the Partnership for the benefit
of employees of the General Partner, the Partnership, Subsidiaries of the
Partnership or any Affiliate of any of them in respect of services performed,
directly or indirectly, for the benefit of the Partnership or any of the
Partnership's Subsidiaries.
D. The General Partner is expressly authorized to enter into, in the
name and on behalf of the Partnership, such conflict avoidance agreements with
various Affiliates of the
42
Partnership and the General Partner, on such terms as the General Partner, in
its sole and absolute discretion, believes are advisable.
E. The General Partner, in its sole and absolute discretion and
without the approval of the Limited Partners, may propose and adopt on behalf of
the Partnership Employee benefit plans funded by the Partnership for the benefit
of employees of the General Partner, the Partnership, Subsidiaries of the
Partnership or any Affiliate of any of them in respect of services performed,
directly or indirectly, for the benefit of the Partnership, the General Partner
or any of the Partnership's Subsidiaries. The General Partner also is expressly
authorized to cause the Partnership to issue to it Partnership Units
corresponding to REIT Shares issued by the General Partner pursuant to its Stock
Incentive Plan or any similar or successor plan and to repurchase such
Partnership Units from the General Partner to the extent necessary to permit the
General Partner to repurchase such REIT Shares in accordance with such plan.
Section 7.7. Indemnification.
---------------
A. The Partnership shall indemnify an Indemnitee from and against any
and all losses, claims, damages, liabilities, joint or several, expenses
(including legal fees and expenses), judgments, fines, settlements, and other
amounts arising from any and all claims, demands, actions, suits or proceedings,
civil, criminal, administrative or investigative, that relate to the operations
of the Partnership as set forth in this Agreement in which any Indemnitee may be
involved, or is threatened to be involved, as a party or otherwise, unless it is
established that: (i) the act or omission of the Indemnitee was material to the
matter giving rise to the proceeding and either was committed in bad faith or
was the result of active and deliberate dishonesty; (ii) the Indemnitee actually
received an improper personal benefit in money, property or services; or (iii)
in the case of any criminal proceeding, the Indemnitee had reasonable cause to
believe that the act or omission was unlawful. 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 Section 7.7 in favor of any Indemnitee
-----------
having or potentially having liability for any such indebtedness. The
termination of any proceeding by judgment, order or settlement does not create a
presumption that the Indemnitee did not meet the requisite standard of conduct
set forth in this Section 7.7.A. The termination of any proceeding by
conviction or upon a plea of nolo contendere or its equivalent, or any entry of
an order of probation prior to judgment, creates a rebuttable presumption that
the Indemnitee acted in a manner contrary to that specified in this Section
7.7.A. Any indemnification pursuant to this Section 7.7 shall be made only out
of the assets of the Partnership. Notwithstanding the foregoing provisions, the
General Partner shall be entitled to reimbursement by the Partnership for any
amounts paid by it in satisfaction of indemnification obligations owed by the
General Partner to present or former directors of the General Partner or its
predecessors, as provided for in or pursuant to the Charter and By-Laws of the
General Partner.
43
B. Reasonable expenses incurred by an Indemnitee who is a party to a
proceeding may be paid or reimbursed by the Partnership in advance of the final
disposition of the proceeding upon receipt by the Partnership of (i) a written
affirmation by the Indemnitee of the Indemnitee's good faith belief that the
standard of conduct necessary for indemnification by the Partnership as
authorized in 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.
D. The Partnership may purchase and maintain insurance, on behalf of
the Indemnitees and such other Persons as the General Partner shall determine,
against any liability that may be asserted against or expenses that may be
incurred by any such Person in connection with the Partnership's activities,
regardless of whether the Partnership would have the power to indemnify such
Person against such liability under the provisions of this Agreement.
E. For purposes of this Section 7.7, the Partnership shall be deemed
to have requested an Indemnitee to serve as fiduciary of an employee benefit
plan whenever the performance by it of its duties to the Partnership also
imposes duties on, or otherwise involves services by, it to the plan or
participants or beneficiaries of the plan; excise taxes assessed on an
Indemnitee with respect to an employee benefit plan pursuant to applicable law
shall constitute fines within the meaning of Section 7.7; and actions taken or
omitted by the Indemnitee with respect to an employee benefit plan in the
performance of its duties for a purpose reasonably believed by it to be in the
interest of the participants and beneficiaries of the plan shall be deemed to be
for a purpose which is not opposed to the best interests of the Partnership.
F. In no event may an Indemnitee subject the Limited Partners to
personal liability by reason of the indemnification provisions set forth in this
Agreement.
G. An Indemnitee shall not be denied indemnification in whole or in
part under this Section 7.7 because the Indemnitee had an interest in the
transaction with respect to which the indemnification applies if the transaction
was otherwise permitted by the terms of this Agreement.
H. The provisions of this Section 7.7 are for the benefit of the
Indemnitees, their heirs, successors, assigns and administrators and shall not
be deemed to create any rights for the benefit of any other Persons.
I. If and to the extent any reimbursements to the General Partner
pursuant to this Section 7.7 constitute gross income of the General Partner (as
-----------
opposed to the repayment of advances made by the General Partner on behalf of
the Partnership), such amounts shall constitute guaranteed payments within the
meaning of Section 707(c) of the Code, shall be
44
treated consistently therewith by the Partnership and all Partners, and shall
not be treated as distributions for purposes of computing the Partners' Capital
Accounts.
Section 7.8. Liability of the General Partner.
--------------------------------
A. Notwithstanding anything to the contrary set forth in this
Agreement, none of the General Partner or any of its officers, directors, agents
and employees shall be liable or accountable in damages or otherwise to the
Partnership, any Partners or any Assignees, or their successors or assigns, 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 acted in good faith.
B. The Limited Partners expressly acknowledge that (i) the General
Partner is acting for the benefit of the Partnership, the Limited Partners and
the General Partner's stockholders collectively, and (ii) the General Partner is
under no obligation to give priority to the separate interests of the Limited
Partners, on the one hand, or the General Partner's stockholders, on the other,
in deciding whether to cause the Partnership to take (or decline to take) any
actions (including, without limitation, with respect to the tax consequences to
either).
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 agents. The General Partner
shall not be responsible for any misconduct or negligence on the part of any
such agent appointed by it in good faith.
D. 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 liability of the General Partner and any of its officers,
directors, agents and employees 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. Notwithstanding anything herein to the contrary, except for fraud,
willful misconduct and gross negligence, or pursuant to any express indemnities
given to the Partnership by any Partner pursuant to any other written
instrument, no Partner shall have any personal liability whatsoever, to the
Partnership or to the other Partner, for the debts or liabilities of the
Partnership or its obligations hereunder, and the full recourse of the other
Partner shall be limited to the interest of that Partner in the Partnership. To
the fullest extent permitted by law, no officer, director or stockholder of the
General Partner shall be liable to the Partnership for money damages except for
(i) active and deliberate dishonesty established by a final judgment or (ii)
actual receipt of an improper benefit or profit in money, property or services.
Without limitation of the foregoing, and except for fraud, willful misconduct
and gross negligence, or pursuant to any such express indemnity, no property or
assets of any Partner, other than its interest in the Partnership, shall be
subject to levy, execution or other enforcement procedures for the satisfaction
of any judgment (or other judicial process) in favor of any other Partner(s) and
45
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.
Section 7.9. Other Matters Concerning the General Partner.
--------------------------------------------
A. 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 to be genuine and to have been signed or presented by
the proper party or parties.
B. The General Partner may consult with legal counsel, accountants,
appraisers, management consultants, investment bankers 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 which such 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 which
is permitted or required to be done by the General Partner hereunder.
D. Notwithstanding any other provisions of this Agreement or any non-
mandatory provision of the Act, any action of the General Partner on behalf of
the Partnership or any decision of the General Partner to refrain from acting on
behalf of the Partnership, undertaken in the good faith belief that such action
or omission is necessary or advisable in order (i) to protect the ability of the
General Partner to continue to qualify as a REIT or (ii) to avoid the General
Partner incurring any taxes under Section 857 or Section 4981 of the Code
(except with respect to the distribution of Available Cash to the Series A
Limited Partners in accordance with Section 16.2), is expressly authorized under
this Agreement and is deemed approved by all of the Limited Partners.
Section 7.10. Title to Partnership Assets.
---------------------------
Title to Partnership assets, whether real, personal or mixed and
whether tangible or intangible, shall be deemed to be owned by the Partnership
as an entity, and no Partners, individually or collectively, shall have any
ownership interest in such Partnership assets or any portion thereof. Title to
any or all of the Partnership assets may be held in the name of the Partnership,
the General Partner or one or more nominees, as the General Partner may
determine, including Affiliates of the General Partner. The General Partner
hereby declares and warrants that any Partnership assets for which legal title
is held in the name of the General Partner or any nominee or Affiliate of the
General Partner shall be held by the General Partner for the use and
benefit of the Partnership in accordance with the provisions of this Agreement;
provided, however, that the General Partner shall use its best efforts to cause
-------- -------
beneficial and record title to such assets to be vested in the Partnership as
soon as reasonably practicable. All Partnership
46
assets shall be recorded as the property of the Partnership in its books and
records, irrespective of the name in which legal title to such Partnership
assets is held.
Section 7.11. Reliance by Third Parties.
-------------------------
Notwithstanding anything to the contrary in this Agreement, any Person
dealing with the Partnership shall be entitled to assume that the General
Partner has full power and authority to encumber, sell or otherwise use in any
manner any and all assets of the Partnership and to enter into any contracts 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. Each Limited Partner hereby waives any and all
defenses or other remedies which may be available against such Person to
contest, negate or disaffirm any action of the General Partner in connection
with any such dealing. 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 expedience
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.
-----------------------
The Limited Partners shall have no liability under this Agreement
except as expressly provided in this Agreement 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, 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 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, 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.
47
Section 8.3. Outside Activities of Limited Partners.
--------------------------------------
Subject to any agreements entered into by a Limited Partner or its
Affiliates with the General Partner, the Partnership or a Subsidiary and any
employment agreement), any Limited Partner and any officer, director, employee,
agent, trustee, Affiliate or stockholder of any Limited Partner shall be
entitled to and may have business interests and engage in business activities in
addition to those relating to the Partnership, including business interests and
activities in direct competition with the Partnership. Neither the Partnership
nor any Partners shall have any rights by virtue of this Agreement in any
business ventures of any Limited Partner or Assignee. Subject to such
agreements, none of the Limited Partners nor any other Person shall have any
rights by virtue of this Agreement or the partnership relationship established
hereby in any business ventures of any other Person, other than the General
Partner, and such Person shall have no obligation pursuant to this Agreement to
offer any interest in any such business ventures to the Partnership, any Limited
Partner or any such other Person, even if such opportunity is of a character
which, if presented to the Partnership, any Limited Partner or such other
Person, could be taken by such Person.
Section 8.4. Return of Capital.
-----------------
Except pursuant to the rights of Exchange and Put set forth in Section
8.6 and the redemption and exchange rights set forth in Sections 16.4 and 16.7,
no Limited Partner shall be entitled to the withdrawal or return of his Capital
Contribution, except to the extent of distributions made pursuant to this
Agreement or upon termination of the Partnership as provided herein. Except as
expressly set forth herein with respect to the rights, priorities and
preferences of the Preferred Limited Partners holding any series of Preferred
Units, 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
otherwise expressly provided in this Agreement, as to profits, losses,
distributions or credits.
Section 8.5. Rights of Limited Partners Relating to the Partnership.
------------------------------------------------------
A. In addition to other rights provided by this Agreement or by the
Act, and except as limited by Section 8.5.C hereof, each Limited Partner shall
have the right, for a purpose reasonably related to such Limited Partner's
interest as a limited partner in the Partnership, upon written demand with a
statement of the purpose of such demand and at such Limited Partner's own
expense:
(1) to obtain a copy of the most recent annual and quarterly reports
filed with the Securities and Exchange Commission by the General
Partner pursuant to the Securities Exchange Act of 1934, as
amended, and each report sent to the stockholders of the General
Partner;
(2) to obtain a copy of the Partnership's federal, state and local
income tax returns for each Partnership Year;
48
(3) to obtain a current list of the name and last known business,
residence or mailing address of each Partner;
(4) to obtain a copy of this Agreement and the Certificate and all
amendments thereto, together with executed copies of all powers
of attorney pursuant to which this Agreement, the Certificate and
all amendments thereto have been executed; and
(5) to obtain true and full information regarding the amount of cash
and a description and statement of any other property or services
contributed by each Partner and which each Partner has agreed to
contribute in the future, and the date on which each became a
Partner.
B. The Partnership shall notify each Common Limited Partner in
writing of any adjustment made in the calculation of the REIT Shares Amount
within 10 Business Days of the date such change becomes effective.
C. Notwithstanding any other provision of this Section 8.5, the
General Partner may keep confidential from the Limited Partners, for such period
of time as the General Partner determines in its sole and absolute discretion to
be reasonable, any information that (i) the General Partner believes to be in
the nature of trade secrets or other information the disclosure of which the
General Partner in good faith believes is not in the best interests of the
Partnership or the General Partner or (ii) the Partnership or the General
Partner is required by law or by agreements with unaffiliated third parties to
keep confidential.
Section 8.6. Common Limited Partner Exchange and Put Rights.
----------------------------------------------
A. On or after the date one (1) year after the Effective Date or on
or after such later date as expressly provided in an agreement entered into
between the partnership and any Common Limited Partner, but prior to the date
forty (40) years after the Effective Date, each Common Limited Partner shall
have the right (subject to the terms and conditions set forth herein and in any
other such agreement, as applicable) to require the General Partner to acquire
all or a portion of the Common Units held by such Common Limited Partner (such
Common Units being hereafter "Tendered Units") in exchange for, at the election
of such Common Limited Partner, (i) REIT Shares, in which event such required
acquisition shall be considered a "Exchange," or (ii) cash, in which event such
required acquisition shall be considered a "Put." Any Exchange or Put shall be
exercised pursuant to a Notice of Exchange or Notice of Put, as the case may be,
delivered to the General Partner by the Common Limited Partner who is exercising
the relevant right (the "Tendering Partner").
B. A Tendering Partner effecting an Exchange shall have the right to
receive, on the Specified Exchange Date, the REIT Shares Amount (calculated as
of the Valuation Date) with respect to the Tendered Units, subject to the
limitations on ownership and provisions with respect to Excess Shares set forth
in Article IV of the Charter. The REIT Shares Amount shall be delivered as duly
authorized, validly issued, fully paid and nonassessable REIT Shares and, if
applicable, rights, free of any pledge, lien, encumbrance or restriction, other
than those provided
49
in the Charter, the By-Laws of the General Partner, the Securities Act and
relevant state securities or blue sky laws. Notwithstanding any delay in such
delivery, the Tendering Partner shall be deemed the owner of such REIT Shares
and rights for all purposes, including without limitation, rights to vote or
consent, receive dividends, and exercise rights, as of the Specified Exchange
Date.
C. (1) A Tendering Partner effecting a Put shall have the right to
receive on the Specified Put Date cash in the amount of the Put Amount;
provided, that, within five (5) Business Days after receipt of the Notice of
-------- ----
Put, the General Partner shall give written notice to the Tendering Partner as
to whether the General Partner will purchase the Tendered Units with the
proceeds of a registered public offering (a "Public Offering Funding") of a
number of REIT Shares ("Registrable Shares") equal to the REIT Shares Amount
with respect to the Tendered Units. In the event that the General Partner fails
to give such notice, it will be deemed to have elected not to purchase the
Tendered Units through a Public Offering Funding and shall purchase the Tendered
Units on the Specified Put Date for cash in the amount (the "Cash Amount") equal
to the Value on the Valuation Date of the REIT Shares Amount (calculated as of
the Valuation Date) with respect to the Tendered Units.
(2) In the event that the General Partner elects a Public
Offering Funding with respect to a Put covering in excess of 75,000 Common
Units, it may at such time, give notice (a "Single Funding Notice") of such
election to all Common Limited Partners and require that all Common Limited
Partners elect whether or not to effect a Put to be funded through such
Public Offering Funding. In the event a Common Limited Partner elects to
effect such a Put, it shall give notice thereof and of the number of Common
Units to be made subject thereto in writing to the General Partner within
10 Business Days after receipt of the Single Funding Notice, and such
Common Limited Partner shall be treated as a Tendering Partner for all
purposes of this Section 8.6. In the event that a Common Limited Partner
does not so elect, it shall be deemed to have waived its right to effect a
Put for the current Twelve-Month Period, except that it may effect a Put
for no more than 20,000 Common Units during such Twelve-Month Period.
D. In the event that the General Partner elects a Public Offering
Funding, it shall purchase the Tendered Units on the Specified Put Date for cash
in immediately available funds in the amount (the "Public Offering Funding
Amount") equal to the lesser of (i) the Cash Amount or (ii) the proceeds
received by the General Partner from the Public Offering Funding after deduction
of reasonable expenses related thereto, including underwriting discounts and
commissions, legal and accounting fees and expenses, Securities and Exchange
Commission ("SEC") registration fees, state blue sky and securities laws fees
and expenses, printing expenses, NASD filing fees and listing fees.
E. If the General Partner elects a Public Offering Funding, the
following additional terms and conditions shall apply:
(1) As soon as practicable after the General Partner gives the
Tendering Partner notice of its election, the General Partner shall use its
best efforts to
50
effect as promptly as possible a registration, qualification or compliance
(including, without limitation, the execution of an undertaking to file
post-effective amendments, appropriate qualifications under applicable blue
sky or other state securities laws and appropriate compliance with
applicable regulations issued under the Securities Act and any other
governmental requirements or regulations) as would permit or facilitate the
sale and distribution of the REIT Shares; provided, that, the General
Partner shall not by reason hereof, be required to submit to jurisdiction
or taxation, or qualify to do business in any jurisdiction in which such
submission or qualification would not be otherwise required; provided,
--------
further, that if the General Partner shall deliver a certificate to the
-------
Tendering Partner stating that the General Partner has determined in the
good faith judgment of the Board of Directors that such filing,
registration or qualification would require disclosure of material non-
public information, the disclosure of which would have a material adverse
effect on the General Partner, then the General Partner may delay making
any filing or delay the effectiveness of any registration or qualification
for the shorter of (a) the period ending on the date upon which such
information is disclosed to the public or ceases to be material or (b) an
aggregate period of 90 days in connection with any Public Offering Funding.
(2) The General Partner shall advise the Tendering Partner,
regularly and promptly upon any request, of the status of the registration,
including the timing of all filings, the selection of and understandings
with underwriters, dealers and brokers, the nature and contents of all
communications with the Securities and Exchange Commission and other
governmental bodies, the expenses related to the Public Offering Funding as
they are being incurred, the nature of marketing activities, and any other
matters reasonably related to the timing, price and expenses relating to
the Public Offering Funding and the compliance by the General Partner with
its obligations with respect thereto. In addition, the General Partner and
each Tendering Partner may, but shall be under no obligation to, enter into
understandings in writing ("Pricing Agreements") whereby the Tendering
Partner will agree in advance as to the acceptability of the net price
(after deducting all expenses referred to in Section 8.6.D) at or below the
Value on the Valuation Date of a REIT Share, at which the Registrable
Shares are to be offered pursuant to the Public Offering Funding (the
"Price"). Furthermore, the General Partner shall establish pricing
notification procedures with each such Tendering Partner, such that the
Tendering Partner will have the maximum opportunity practicable to
determine whether to become a Withdrawing Partner pursuant to Section
8.6.E(3) below.
(3) The General Partner, upon notification of the Price from the
managing underwriter(s) engaged by the General Partner in order to sell the
Registrable Shares, shall immediately use its best efforts to notify the
Tendering Partner of the Price. Each Tendering Partner shall have one hour
(as such time may be extended by the General Partner) to elect to withdraw
his Put (a Tendering Partner making such an election being a "Withdrawing
Partner"), and Common Units with a REIT Shares Amount equal to such
excluded Registrable Shares shall be considered to be withdrawn from the
related Put. If a Tendering Partner, within such time period, does not
notify the General Partner of such Tendering Partner's election not to
become a Withdrawing
51
Partner, then such Tendering Partner shall, except as otherwise provided in
a Pricing Agreement, be deemed to have elected to become a Withdrawing
Partner, without liability to the General Partner. To the extent that the
General Partner is unable to notify any Tendering Partner, such unnotified
Tendering Partner shall, except as otherwise provided in any Pricing
Agreement, be deemed to have elected to become a Withdrawing Partner. Each
Tendering Partner whose Put is being funded through the Public Offering
Funding who does not become a Withdrawing Partner shall have the right,
subject to the approval of the managing underwriter(s), to Put additional
Common Units in a number no greater than the number of Common Units
withdrawn. In the event that the Price is in excess of the Value on the
Valuation Date of a REIT Share, then the Withdrawing Partner shall bear its
pro rata share of the expenses described in Section 8.6.D (such share
calculated as if such Partner had not been a Withdrawing Partner). If more
than one Tendering Partner so elects to Put additional Common Units, then
such Common Partnership Units shall be Put on a pro rata basis, based on
the number of additional Common Units sought to be so Put.
(4) The General Partner shall take all reasonable action in order
to effectuate the sale of the Registrable Shares including, but not limited
to, the entering into of an underwriting agreement in customary form with
the managing underwriter(s) selected for such underwriting by the Tendering
Partner or, if there is more than one Tendering Partner, by the Tendering
Partner who, together with the affiliates of such Tendering Partner,
beneficially owns the greatest number of Common Units then being made
subject to a Put. Notwithstanding any other provision of this Agreement,
if the managing underwriter(s) advises the General Partner in writing that
marketing factors require a limitation of the number of shares to be
underwritten, then the General Partner shall so advise all Tendering
Partners and the number of Common Units to be sold to the General Partner
pursuant to the Put shall be allocated among all Tendering Partners in
proportion, as nearly as practicable, to the respective number of Common
Units as to which each Tendering Partner elected to effect a Put. No
Registrable Shares excluded from the underwriting by reason of the managing
underwriter's marketing limitation shall be included in such registration.
(5) The General Partner may include securities for its own
account in any registration filed pursuant to Section 8.6.D hereof and, if
the managing underwriter has not limited the number of Registrable Shares
to be underwritten, the General Partner may include securities for the
account of others in such registration, in each case only if and to the
extent that (i) the managing underwriter, the General Partner and Tendering
Partners owning Common Units representing at least seventy-five percent
(75%) of the Common Units with respect to which the Public Offering Funding
is being effected so agree in writing, and (ii) the right of any party to
Put Common Units pursuant to this Section 8.6, and the Put Amount to be
received by such party (including by virtue of the number of Registrable
Shares which would otherwise have been included in such registration and
underwriting, the offering price for such Registrable Shares and the
underwriting commissions or discounts for such Registrable Shares) will not
thereby be limited, reduced or adversely affected.
52
F. Notwithstanding the provisions of Section 8.6.A, a Common Limited
Partner shall not be entitled to effect an Exchange if the ownership or right to
acquire REIT Shares by such Partner on or prior to the Specified Exchange Date
would be prohibited under the Charter.
G. Notwithstanding anything herein to the contrary, with respect to
any Exchange or Put pursuant to this Section 8.6:
(1) All Common Units acquired by the General Partner pursuant thereto
shall automatically, and without further action required, be
converted into and deemed to be General Partner Interests
comprised of the same number of Common Units.
(2) Each Common Limited Partner may not effect an Exchange (a) for
less than 2,500 Partnership Units or, if such Common Limited
Partner holds less than 2,500 Partnership Units, all of the
Common Units held by such Partner; or (b) for more than the
greater of 75,000 Common Units or one-third of the number of
Common Units set forth by its name on Exhibit A hereto as of the
closing of the initial public offering of REIT Shares, less the
number of Common Units made subject to a Put during the same
Twelve-Month Period;
(3) Each Common Limited Partner may not effect a Put (a) for less
than 5,000 Common Units or, if such Common Limited Partner holds
less than 5,000 Common Units, all of the Common Units held by
such Common Limited Partner, or (b) for more than one-third of
the number of Common Units set forth by its name on Exhibit A
hereto as of the closing of the initial public offering of REIT
Shares, less the number of Common Units made subject to an
Exchange during the same Twelve-Month Period;
(4) Each Common Limited Partner (a) may effect an Exchange or Put
only once in each Twelve-Month Period, and (b) may not effect an
Exchange or Put during the period after the Partnership Record
Date with respect to a distribution and before the record date
established by the General Partner for a distribution to its
stockholders of some or all of its portion of such distribution.
(5) Notwithstanding anything herein to the contrary, with respect to
any Put, in the event the General Partner gives notice to all
Common Limited Partners (a "Primary Offering Notice") that it
desires to effect a primary offering of its equity securities for
cash (other than an offering in connection with a merger,
consolidation or similar transaction, or employee benefit or
similar plans) then, unless the General Partner otherwise
consents, the actions described in Section 8.6.E as to a Public
Offering Funding with respect to any Notice of Put thereafter
received may be delayed until the earlier of (a) the completion
of the primary
53
offering or (b) 120 days following the giving of the Primary
Offering Notice; provided that, to the extent that the managing
underwriter(s) of such primary offering advise that the inclusion
of such additional REIT Shares will not adversely affect the
offering, additional REIT Shares the proceeds of which are to be
used to satisfy a Put made subject to such a Notice of Put (a
"Subsequent Put") (without regard to the limitations of
subparagraph (3) (a) of this paragraph G) shall be included in
such offering, and the procedures of this Section 8.6 shall
otherwise be followed as closely as practicable; provided,
--------
further that, unless the entire REIT Shares Amount relating to
------- ----
the Common Units made subject to the Subsequent Put shall be sold
in such offering, such Subsequent Put shall not count as a Put
for purposes of subparagraph (4) of this Paragraph G; and,
---
provided, further, that a Primary Offering Notice may be given no
-------- -------
more than once in any Twelve-Month Period without the Consent of
the Common Limited Partners.
(6) The General Partner may delay a Public Offering Funding, such
that it will not occur (1) during the same Twelve-Month Period as
the General Partner has effected a "Demand Registration" pursuant
to the Registration Rights Agreement dated as of August 18, 1993,
among the General Partner and certain Common Limited Partners (it
being understood that in the event a Notice of Put is received
prior to the receipt of requisite requests for a Demand
Registration, such Notice of Put shall control, and vice versa)
---- -----
or (b) within 120 days following the closing of any prior Public
Offering Funding;
(7) The consummation of such Exchange or Put shall be subject to the
expiration or termination of the applicable waiting period, if
any, under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of
1976, as amended.
(8) Each Tendering Partner shall continue to own all Common Units
subject to any Exchange or Put, and be treated as a Common
Limited Partner with respect such Common Units for all purposes
of this Agreement, until such Common Units are transferred to the
General Partner and the consideration provided by this Section
8.6 is delivered in full on the Specified Exchange Date or
Specified Put Date, as the case may be. Until a Specified
Exchange Date, the Tendering Partner shall have no rights as a
stockholder of the General Partner.
(9) The right of each Common Limited Partner to effect a Put shall be
subject to the ability of the Partnership to comply with the
terms of Section 16.2.C(i).
For purposes of determining compliance with the restrictions set forth
in this Paragraph G, all Common Units beneficially owned by Affiliates
of a Common
54
Limited Partner shall be considered to be owned or held by such Common
Limited Partner. In addition, (i) each lending institution, if any, to
which Common Units are transferred upon the exercise of remedies in
respect of a Pledge (as defined in Section 11.3.A(iii) hereof) as
contemplated by Section 11.3.A(iii) hereof (each such lending
institution a "Lending Institution Transferee") shall be entitled to
exercise all rights of a Common Limited Partner under this Section 8.6
as if such Lending Institution Transferee were a Common Limited
Partner hereunder, provided, however, that (a) such Lending
Institution Transferee shall not be deemed to be a Substituted Limited
Partner for purposes of this Agreement on account of exercising its
remedies against Partnership Units, and (b) all Lending Institution
Transferees of all or any portion of a Limited Partner's Partnership
Interest, together with such Common Limited Partner, shall have no
greater rights under this Section 8.6 than are available to such
Common Limited Partner, whether or not such Lending Institution
Transferees act individually or jointly with each other or such Common
Limited Partner; (ii) any two or more Lending Institution Transferees
to which Common Units were pledged by the same Common Limited Partner
or any of such Common Limited Partner's Affiliates may act jointly in
exercising the rights of a Common Limited Partner under this Section
8.6; and (iii) for purposes of determining compliance with the
restrictions set forth in this Paragraph G, all Common Units of a
Common Limited Partner or any of its Affiliates transferred to Lending
Institution Transferees shall be considered to be owned or held by
such Common Limited Partner or such Affiliate, such that the maximum
number of Common Units as to which an Exchange or Put may be effected
by any Lending Institution Transferee (or any two or more Lending
Institution Transferees acting jointly) at any time shall be the
maximum number of Common Units that such Common Limited Partner would
then be entitled to effect if such Common Limited Partner would then
be entitled to effect if such Partnership Interests had not been
pledged.
H. Notwithstanding the provisions of this Section 8.6 permitting the
General Partner to delay a Public Offering Funding by virtue of an event
described in Section 8.6.E, the giving of a Primary Offering Notice, or a delay
referred to in Section 8.6.G.(6), the General Partner shall use its reasonable
efforts to take all such actions, as are consistent with the purposes of such
delay provisions, to effect a Public Offering Funding at the earliest time
practicable. It is understood that such periods of delay shall run, to the
extent practicable, concurrently, and shall not limit the right of a Common
Limited Partner to deliver a Notice of Put.
I. In the event that the Partnership issues additional Partnership
Interests to any Additional Limited Partner pursuant to Section 4.5.D, the
General Partner shall make such revisions to this Section 8.6 as it determines
are necessary to reflect the issuance of such additional Partnership Interests.
J. In the event of a Put, the General Partner shall have the right to
assign to the Partnership, and the Partnership agrees to accept such assignment,
the right or obligation to acquire Common Units subject to a Put as described in
this Section 8.6.
55
ARTICLE 9.
BOOKS, RECORDS, ACCOUNTING AND REPORTS
Section 9.1. Records and Accounting.
----------------------
The General Partner shall keep or cause to be kept at the principal
office of the Partnership appropriate books and records 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 Sections 9.3 or Section 8.5.A.
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 of, punch cards, magnetic
tape, photographs, micrographics or any other information storage device,
provided that the records so maintained are convertible into clearly legible
written form within a reasonable period of time. The books of the Partnership
shall be maintained, for financial and tax reporting purposes, on an accrual
basis in accordance with generally accepted accounting principles.
Section 9.2. Fiscal Year.
-----------
The fiscal year of the Partnership shall be the calendar year.
Section 9.3. Reports.
-------
A. As soon as practicable, but in no event later than 105 days after
the close of each Partnership Year, or such later date as they are filed with
the Securities and Exchange Commission, the General Partner shall cause to be
mailed to each Limited Partner as of the close of the Partnership Year, an
annual report containing financial statements of the Partnership, or of the
General Partner if such statements are prepared solely on a consolidated basis
with the General Partner, for such Partnership Year, presented in accordance
with generally accepted accounting principles, such statements to be audited by
a nationally recognized firm of independent public accountants selected by the
General Partner.
B. As soon as practicable, but in no event later than 105 days after
the close of each calendar quarter (except the last calendar quarter of each
year) or such later date as they are filed with the Securities and Exchange
Commission, the General Partner shall cause to be mailed to each Limited Partner
as of the last day of the calendar quarter, a report containing unaudited
financial statements of the Partnership, or of the General Partner, if such
statements are prepared solely on a consolidated basis with those of the General
Partner, in accordance with the applicable law or regulation, or as the General
Partner determines to be appropriate.
56
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 of Partnership income, gains, deductions, losses and other
items required of the Partnership for federal and state income tax purposes and
shall use all reasonable efforts to furnish, within 90 days of the close of each
taxable year, the tax information reasonably required by Limited Partners 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.
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 the election under Section 754 of the Code. The
General Partner shall have the right to seek to revoke any such election
(including without limitation, any election under Section 754 of the Code) upon
the General Partner's determination in its sole and absolute discretion that
such revocation is the best interests of the Partners.
Section 10.3. Tax Matters Partner.
-------------------
A. The General Partner shall be the "tax matters partner" of the
Partnership for federal income tax purposes. Pursuant to Section 6223(c)(3) of
the Code, upon receipt of notice from the IRS of the beginning of an
administrative proceeding with respect to the Partnership, the tax matters
partner shall furnish the IRS with the name, address and profit interest of each
of the Limited Partners; provided, however, that such information is provided to
the Partnership by the Limited Partners.
B. The tax matters partner is authorized, but not required:
(1) 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 or (ii) who is a "notice
57
partner" (as defined in Section 6231 of the Code) or a member of
a "notice group" (as defined in Section 6223(b)(2) of the Code);
(2) 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 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;
(3) to intervene in any action brought by any other Partner for
judicial review of a final adjustment;
(4) 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;
(5) to enter into an agreement with the IRS to extend the period for
assessing any tax which is attributable to any item required to
be taken into account by a Partner for tax purposes, or an item
affected by such item; and
(6) to take any other action on behalf of the Partners of the
Partnership 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 of this Agreement shall be fully applicable to
the tax matters partner in its capacity as such.
C. 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 his duties as such (including legal and accounting fees)
shall be borne by the Partnership. Nothing herein shall be construed to
restrict the Partnership from engaging an accounting firm to assist the tax
matters partner in discharging his duties hereunder, so long as the compensation
paid by the Partnership for such services is reasonable.
Section 10.4. Organizational Expenses.
-----------------------
The Partnership shall elect to deduct expenses, if any, incurred by it
in organizing the Partnership ratably over a 60-month period as provided in
Section 709 of the Code.
58
Section 10.5. 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 Sections 1441, 1442, 1445 or 1446 of the Code. Any
amount paid on behalf of or with respect to a Limited Partner shall constitute a
loan by the Partnership to such Limited Partner, which loan shall be repaid by
such Limited Partner within 15 days after notice from the General Partner that
such payment must be made unless (i) the Partnership withholds such payment from
a distribution which 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 available funds of the Partnership which
would, but for such payment, be distributed to the Limited Partner. Any amounts
withheld pursuant to the foregoing clauses (i) or (ii) shall be treated as
having been distributed to such Limited Partner. Each Limited Partner hereby
unconditionally and irrevocably grants to the Partnership a security interest in
such Limited Partner's Partnership Interest to secure such Limited Partner's
obligation to pay to the Partnership any amounts required to be paid pursuant to
this Section 10.5. In the event that a Limited Partner fails to pay any amounts
owed to the Partnership pursuant to this Section 10.5 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). 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 percentage points (but not higher than the maximum lawful rate) from
the date such amount is due (i.e., 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.
ARTICLE 11.
TRANSFERS AND WITHDRAWALS
Section 11.1. Transfer.
--------
A. The term "transfer," when used in this Article 11 with respect to
a Partnership Unit, shall be deemed to refer to a transaction by which the
General Partner purports to assign its General Partner Interest to another
Person or by which a Limited Partner purports to assign its Limited Partnership
Interest to another Person, and includes a sale, assignment, gift (outright or
in trust), pledge, encumbrance, hypothecation, mortgage, exchange or any other
disposition by law or otherwise. Except to the extent otherwise specified, the
term "transfer" when used in this Article 11 does not include any redemption of
Common Units by the Partnership or acquisition of Common Units from a Common
Limited Partner by the General
59
Partner pursuant to Section 8.6 or any exchange or redemption of Series A
Preferred Units pursuant to Section 16.7. No part of the interest of a Limited
Partner shall be subject to the claims of any creditor, any spouse for alimony
or support, or 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 unless
-- ------
otherwise consented to by the General Partner in its sole and absolute
discretion.
Section 11.2. Transfer of General Partner's Partnership Interest.
--------------------------------------------------
A. Subject to Section 11.2.B., the General Partner shall not withdraw
from the Partnership and shall not sell, assign, pledge, encumber or otherwise
dispose of all or any portion of its interest in the Partnership (whether by
sale, disposition, statutory merger or consolidation, liquidation or otherwise)
without the Consent of the Limited Partners. Upon any transfer of such a
Partnership Interest pursuant to the Consent of the Limited Partners and
otherwise in accordance with the provisions of this Section 11.2.A, the
transferee shall become a substitute General Partner for all purposes herein,
and shall be vested with the powers and rights of the transferor General
Partner, and shall be liable for all obligations and responsible for all duties
of the General Partner, once such transferee has executed such instruments as
may be necessary to effectuate such admission and to confirm the agreement of
such transferee to be bound by all the terms and provisions of this Agreement
with respect to the Partnership Interest so acquired. It is a condition to any
such transfer that the transferee assumes, by operation of law or express
agreement, all of the obligations of the transferor General Partner under this
Agreement with respect to such transferred Partnership Interest, and no such
transfer (other than pursuant to a statutory merger or consolidation wherein all
obligations and liabilities of the transferor General Partner are assumed by a
successor corporation by operation of law) shall relieve the transferor General
Partner of its obligations under this Agreement without the Consent of the
Limited Partners. In the event 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 Limited Partners may elect to continue the Partnership business
by selecting a Substitute General Partner in accordance with the Act.
B. Notwithstanding any provision herein to the contrary, the General
Partner may, without the Consent of the Limited Partners, effect a transfer of
up to one-third (1/3) of its original General Partner Interest, to one or more
transferees subject to the following restrictions and limitations:
(1) The General Partner shall at all times after such transfer
continue to be the sole general partner of the Partnership,
vested with the powers and rights
60
and liable for all obligations and responsible for all duties of
same which powers, rights, obligations and duties may not be
delegated or assigned;
(2) The transferee shall receive only the economic interest of the
General Partnership Interest as an assignee, including the right
to receive distributions from the Partnership and the share of
Net Income, Net Losses, gain and loss attributable to the
Partnership Units assigned to such transferee, 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 a
Consent with respect to such Partnership Units on any matter
presented to Partners for approval and shall not be counted as a
Limited Partner for purposes of determining the Consent of the
Limited Partners or the Majority In Interest of the Limited
Partners. The transferee shall be admitted as a substitute or
additional General Partner only upon receipt of the Consent of
the Limited Partners therefor.
(3) Such transfer shall not be effected by merger, consolidation,
liquidation, or sale of all or substantially all of the assets of
the General Partner.
Section 11.3. Limited Partners' Rights to Transfer.
------------------------------------
A. Prior to the third (3rd) anniversary of the closing of the initial
public offering of REIT Shares, no Limited Partner shall transfer all or any
portion of its Partnership Interest to any transferee without the consent of the
General Partner, which consent may be withheld in its sole and absolute
discretion; provided, however, that any Limited Partner or transferee of
-------- -------
Partnership Units or Assignee may, at any time before or after such third
anniversary, without the consent of the General Partner, (i) transfer all or any
portion of its Partnership Interest to the General Partner or to the Affiliates
of the transferor or Affiliates of DGP, subject to the provisions of Section
11.6, (ii) transfer its Partnership Interest pursuant to its rights to effect an
Exchange or a Put as provided in Section 8.6 hereof or transfer its Partnership
Interest pursuant to its rights to effect an exchange as provided in Section
16.7 and (iii) subject to Section 11.6, pledge (a "Pledge") all or any portion
of its Partnership Interest to a lending institution which is not an Affiliate
of such Limited Partner, as collateral or security for a bona fide loan or other
extension of credit, and transfer such pledged Partnership Interest to such
lending institution in connection with the exercise of remedies under such loan
or extension or credit. After such third (3rd) anniversary, each Limited
Partner, and each transferee of Partnership Units or Assignee shall also have
the right to transfer all or any portion of its Partnership Interest to any
Person, subject to the provisions of Section 11.6 and to satisfaction of each of
the following conditions:
61
(a) General Partner Right of First Refusal. The transferring Partner
--------------------------------------
shall give written notice of the proposed transfer to the General
Partner, which notice shall state (i) the identity of the
proposed transferee, and (ii) the amount and type of
consideration proposed to be received for the transferred
Partnership Units. The General Partner shall have ten (10)
Business Days upon which to give the transferring Partner notice
of its election to acquire the Partnership Units on the proposed
terms. If it so elects, it shall purchase the Partnership Units
on such terms within ten (10) Business Days after giving notice
of such election; provided, that, in the event that the proposed
-------- ----
terms involve a purchase for cash, the General Partner may at its
election deliver in lieu of all or any portion of such cash a
note payable to the transferring Partner at a date as soon as
reasonably practicable but in no event later than 180 days after
such purchase, and bearing interest at an annual rate equal to
the total dividends declared with respect to one REIT Share for
the four preceding fiscal quarters of the General Partner,
divided by the Value of a REIT Share as of the closing of such
purchase; and, provided, further, that such closing may be
deferred to the extent necessary to effect compliance with the
▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, if
applicable, and any other applicable requirements of law. If it
does not so elect, the transferring Partner may transfer such
Partnership Units to a third party, on terms no more favorable to
the transferee than the proposed terms, subject to the other
conditions of this Section 11.3.
(b) Qualified Transferee. Any transfer of a Partnership Interest in
--------------------
Common Units shall be made only to a single Qualified Transferee;
provided, that, for such purposes, all Qualified Transferees
-------- ----
which are Affiliates, or which comprise investment accounts or
funds managed by a single Qualified Transferee and its
Affiliates, shall be considered together to be a single Qualified
Transferee; provided, further, that, each transfer meeting the
-------- ------- ----
minimum transfer restriction of subsection (c) below may be to a
separate Qualified Transferee.
(c) Minimum Transfer Restriction. Any transferring Common Limited
----------------------------
Partner must transfer not less than the lesser of (i) greater of
50,000 Common Units or one-third (1/3) of the number of Common
Units owned by such Partner as of the Effective Date, or (ii) all
of the remaining Common Units owned by such transferring Partner;
provided, that, for purposes of determining compliance with the
-------- ----
foregoing restriction, all Common Units owned by Affiliates of a
Common Limited Partner shall be considered to be owned by such
Common Limited Partner.
(d) Transferee Agreement to Exchange. Any proposed transferee of
--------------------------------
Common Units shall deliver to the General Partner a written
agreement reasonably satisfactory to the General Partner to the
effect that, subject to the
62
ownership restrictions contained in the Charter, the transferee
will, (i) within six (6) months after consummation of the Common
Units transfer, Exchange its Common Units into REIT Shares in
accordance with the terms of the Exchange rights provided in
Section 8.6, and (ii) to the extent prohibited from effecting
such an Exchange by virtue of such ownership restrictions, effect
a further Exchange of Common Units once during each subsequent
six-month period to the extent such ownership restrictions then
permit.
(e) No Further Transfers. The transferee of Common Units shall not be
--------------------
permitted to effect any further transfer of the Common Units,
other than to its own Affiliates, Affiliates of DGP or to the
General Partner.
It is a condition to any transfer otherwise permitted hereunder that
the transferee assumes 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 (other than
pursuant to a statutory merger or consolidation wherein all obligations and
liabilities of the transferor Partner are assumed by a successor corporation by
operation of law) shall relieve the transferor Partner of its obligations under
this Agreement without the approval of the General Partner, in its sole and
absolute discretion. Notwithstanding the foregoing, any transferee of any
transferred Partnership Interest shall be subject to any and all ownership
limitations contained in the Charter which may limit or restrict such
transferee's ability to exercise its Exchange rights or the exchange rights set
forth in Section 16.7. 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.
B. 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 his or its interest in the
Partnership. The Incapacity of a Limited Partner, in and of itself, shall not
dissolve or terminate the Partnership.
C. The General Partner may prohibit any transfer otherwise permitted
under Section 11.3 by a Limited Partner of his Partnership Units if, in the
opinion of legal counsel to the Partnership, such transfer would require the
filing of a registration statement under the Securities Act by the Partnership
or would otherwise violate any federal or state securities laws or regulations
applicable to the Partnership or the Partnership Units.
D. No transfer by a Limited Partner of his Partnership Units
(including any Exchange or Put pursuant to Section 8.6, any redemption or
exchange pursuant to Sections 16.4 and 16.7, any other acquisition of Common
Units or Series A Preferred Units by the General Partner or the Partnership) may
be made to any person if (i) in the opinion of legal counsel for
63
the Partnership, it could result in the Partnership being treated as an
association taxable as a corporation, or (ii) such transfer is effectuated
through an "established securities market" or a "secondary market (or the
substantial equivalent thereof)" within the meaning of Section 7704 of the Code.
E. No transfer of any Partnership Units may be made to a lender to
the Partnership or any Person who is related (within the meaning of Section
1.752-4(b) of the Regulations) 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; provided that, as a condition to such
-------- ----
consent, the lender will be required to enter into an arrangement with the
Partnership and the General Partner to redeem or exchange for the REIT Shares
Amount or the specified amount of REIT Series A Preferred Shares, as the case
may be, any Partnership Units in which a security interest is held
simultaneously with the time at which such lender would be deemed to be a
partner in the Partnership for purposes of allocating liabilities to such lender
under Section 752 of the Code.
Section 11.4. Substituted Limited Partners.
----------------------------
A. No Limited Partner shall have the right to substitute a transferee
(including transferees pursuant to transfers permitted by Section 11.3) as a
Limited Partner in his place. The General Partner shall, however, have the
right to consent to the admission of a transferee of the interest of a Limited
Partner pursuant to this Section 11.4 as a Substituted Limited Partner, which
consent may be given or withheld by the General Partner in its sole and absolute
discretion. The General Partner's failure or refusal 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 any Partner.
B. 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. The admission of any transferee as a Substituted Limited
Partner shall be subject to the transferee executing and delivering to the
Partnership an acceptance of all of the terms and conditions of this Agreement
(including without limitation, the provisions of Section 12.4 and such other
documents or instruments as may be required to effect the admission, each in
form and substance satisfactory to the General Partner) and the acknowledgment
by such transferee that each of the representations and warranties set forth in
Section 3.4 hereof are true and correct with respect to such transferee as of
the date of the transfer of the Partnership Interest to such transferee and will
continue to be true to the extent required by such representations or
warranties.
C. Upon the admission of a Substituted Limited Partner, the General
Partner shall amend Exhibit A to reflect the name, address, number of
Partnership Units, and Percentage Interest of such Substituted Limited Partner
and to eliminate or adjust, if necessary, the name, address and interest of the
predecessor of such Substituted Limited Partner.
64
Section 11.5. Assignees.
---------
If the General Partner, in its sole and absolute discretion, does not
consent to the admission of any permitted transferee under Section 11.3 as a
Substituted Limited Partner, as described in Section 11.4, 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, gain and loss attributable to the
Partnership Units assigned to such transferee, the rights to transfer the
Partnership Units provided in this Article 11, the rights to effect an Exchange
or a Put provided in Section 8.6 and the right of redemption or exchange for
REIT Series A Preferred Shares provided in Section 16.7, 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 a Consent with respect to such Partnership
Units on any matter presented to the Limited Partners for approval (such Consent
remaining with the transferor Limited Partner). In the event 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. Notwithstanding anything contained in this
Agreement to the contrary, as a condition to becoming an Assignee, any
prospective Assignee must first execute and deliver to the Partnership an
acknowledgment that each of the representations and warranties set forth in
Section 3.4 hereof are true and correct with respect to such prospective
Assignee as of the date of the prospective assignment of the Partnership
Interest to such prospective Assignee and will continue to be true to the extent
required by such representations or warranties.
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 an
Exchange or a Put of all of its Common Units under Section 8.6 or a redemption
or exchange of all of such Limited Partner's Series A Preferred Units under
Section 16.4 or Section 16.7.
B. Any Limited Partner who shall transfer all of his Partnership
Units in a transfer permitted pursuant to this Article 11 where such transferee
was admitted as a Substituted Limited Partner or pursuant to the exercise of its
rights of Exchange or Put of all of its Partnership Units under Section 8.6 or
its rights of redemption or exchange of all of its Series A Preferred Units
under Section 16.7 shall cease to be a Limited Partner.
C. Transfers pursuant to this Article 11 may only be made as of the
first day of a fiscal quarter of the Partnership, unless the General Partner
otherwise consents, which shall not be unreasonably withheld.
D. If any Partnership Interest is transferred or assigned during any
quarterly segment of the Partnership's fiscal year in compliance with the
provisions of this Article 11 or exchanged or redeemed pursuant to Sections 8.6,
16.4 or 16.7, on any day other than the first day
65
of a Partnership Year, then Net Income, Net Losses, each item thereof and all
other items attributable to such Partnership Interest for such fiscal year shall
be divided and allocated between the transferor Partner and the transferee
Partner by taking into account their varying interests during the fiscal year in
accordance with Section 706(d) of the Code, using the interim closing of the
books method. Except as otherwise required by Section 706(d) of the Code, solely
for purposes of making such allocations, each of such items for the calendar
month in which the transfer or assignment occurs shall be allocated to the
Person who is a Partner as of midnight on the last day of said month and none of
such items for the calendar month in which a redemption or exchange occurs will
be allocated to the redeeming or exchanging Partner. All distributions of
Available Cash with respect to which the Partnership Record Date is before the
date of such transfer, assignment, exchange or redemption shall be made to the
transferor Partner, and all distributions of Available Cash thereafter, in the
case of a transfer or assignment other than an exchange or redemption, shall be
made to the transferee Partner.
E. In addition to any other restrictions on transfer herein
contained, including without limitation the provisions of this Article 11 and
Section 12.4, in no event may any transfer or assignment of a Partnership
Interest by any Partner (including any Exchange, Put, redemption of Series A
Preferred Units or exchange of Series A Preferred Units for REIT Series A
Preferred Shares, or any other acquisition of Common Units or Series A Preferred
Units by the Partnership or the General Partner) be made (i) to any person or
entity 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) in
the event such transfer would cause the General Partner to cease to comply with
the REIT Requirements; (v) if such transfer would cause a termination of the
Partnership for federal or state income tax purposes (except as a result of an
Exchange or Put, or redemption or exchange for cash or REIT Series A Preferred
Shares pursuant to Sections 16.4 and 16.7, of all Partnership Units held by all
Limited Partners); (vi) if such transfer would, in the opinion of counsel to the
Partnership, cause the Partnership to cease to be classified as a partnership
for Federal or state income tax purposes (except as a result of the Exchange or
Put, and redemption or exchange for cash or REIT Series A Preferred Shares
pursuant to Sections 16.4 and 16.7, of all Partnership Units held by all Limited
Partners); (vii) 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 Section 3(14) of ERISA) or a "disqualified person" (as
defined in Section 4975(c) of the Code); (viii) if such transfer would, in the
opinion of 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; (ix) if such transfer
requires the registration of such Partnership Interest, or requires the
registration of the exchange of such Partnership Interest for any capital stock
of the General Partner, pursuant to any applicable federal or state securities
laws (other than pursuant to any applicable registration rights agreement); (x)
if such transfer is effectuated through an "established securities market" or a
"secondary market" (or the substantial equivalent thereof) within the meaning of
Section 7704 of the Code or such transfer could cause the Partnership to become
a "Publicly Traded Partnership," as such term is defined in Sections 469(k)(2)
or 7704(b) of the Code; (xi) if such transfer subjects the Partnership to be
regulated under the Investment Company Act of 1940, the Investment Advisors Act
of 1940 or the
66
Employee Retirement Income Security Act of 1974, each as amended; (xii) if the
transferee or assignee of such Partnership Interest is unable to make the
representations set forth in Section 3.4 or such transfer could otherwise
adversely affect the ability of the General Partner to remain qualified as a
REIT; or (xiii) if in the opinion of legal counsel for the Partnership such
transfer would adversely affect the ability of the General Partner to continue
to qualify as a REIT or subject the General Partner to any additional taxes
under Section 857 or Section 4981 of the Code.
F. The General Partner shall monitor the transfers of interests in
the Partnership (including any Exchange, Put, redemption of Series A Preferred
Units or exchange of Series A Preferred Units for REIT Series A Preferred
Shares, or any other acquisition of Common Units or Series A Preferred Units by
the Partnership or the General Partner) to determine (i) if such interests are
being traded on an "established securities market" or a "secondary market (or
the substantial equivalent thereof)" within the meaning of Section 7704 of the
Code, and (ii) whether such transfers of interests would result in the
Partnership being unable to qualify for at least one of the "safe harbors" set
forth in Regulations Section 1.7704-1 or such other applicable guidance
published by the IRS setting forth safe harbors under which interests will not
be treated as "readily tradable on a secondary market (or the substantial
equivalent thereof)" within the meaning of Section 7704 of the Code including,
without limitation, IRS Notice 88-75, to the extent applicable (the "Safe
Harbors"). The General Partner shall have the authority, in its sole
discretion, to take all steps reasonably necessary or appropriate to prevent any
trading of interests or any recognition by the Partnership of such transfers and
to insure that at least one of the Safe Harbors is met.
ARTICLE 12.
ADMISSION OF PARTNERS
Section 12.1. Admission of Successor General Partner.
--------------------------------------
A successor to all of the General Partner's General Partner Interest pursuant to
Section 11.2 hereof who is proposed to be admitted as a successor General
Partner shall be admitted to the Partnership as the General Partner effective
upon such transfer. Any such transferee 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 and such other
documents or instruments as may be required to effect the admission. In the
case of such admission on any day other than the first day of a Partnership
Year, all items attributable to the General Partner Interest for such
Partnership Year shall be allocated between the transferring General Partner and
such successor as provided in Article 11 hereof.
Section 12.2. Admission of Additional Limited Partners.
----------------------------------------
A. A Person (other than an existing Partner) who makes a Capital
Contribution to the Partnership in accordance with this Agreement shall be
admitted to the Partnership as an Additional Limited Partner only upon
furnishing to the General Partner (i) evidence of acceptance in form
satisfactory to the General Partner of all of the terms and conditions of this
Agreement, including, without limitation, the power of attorney granted in
67
Section 2.4 hereof and (ii) such other documents or instruments as may be
required in the discretion of the General Partner in order to effect such
Person's admission as an 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 consent of
the General Partner, which consent may be given or withheld in the General
Partner's sole and absolute discretion (it being understood that such consent is
hereby granted with respect to all signatories of this Agreement). 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 receipt of the Capital Contribution in
respect of such Limited Partner, the documents set forth in Paragraph A of this
Section 12.2 hereof and the consent of the General Partner to such admission.
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 allocable among Partners and Assignees for
such Partnership Year shall be allocated among such Limited Partner and all
other Partners and Assignees by taking into account their varying interests
during the Partnership Year in accordance with Section 706(d) of the Code, using
the interim closing books method. Solely for purposes of making such
allocations, each of such items for the calendar month in which an admission of
an Additional Limited Partner occurs shall be allocated among all the Partners
and Assignees including such Additional Limited Partner. All distributions of
Available Cash 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 (other than in its capacity as an Assignee) and
except as otherwise agreed to by the Additional Limited Partners and the General
Partner, and all distributions of Available Cash thereafter shall be made to all
Partners and Assignees including such Additional Limited Partner.
Section 12.3. Amendment of Agreement and Certificate of Limited
-------------------------------------------------
Partnership.
-----------
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.
---------------------------
The Partnership shall not at any time have more than 100 Partners
(including as Partners those persons indirectly owning an interest in the
Partnership through a partnership, limited liability company, S corporation or
grantor trust (such entity, a "flow through entity"), but only if substantially
all of the value of such person's interest in the flow through entity is
attributable to the flow through entity's interest (direct or indirect) in the
Partnership).
68
ARTICLE 13.
DISSOLUTION AND LIQUIDATION
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
continue the business of the Partnership. The Partnership shall dissolve, and
its affairs shall be wound up, upon the first to occur of any of the following
("Liquidating Events"):
A. the expiration of its term as provided in Section 2.5 hereof;
B. an event of withdrawal of the General Partner, as defined in the
Act, unless, within 90 days after the withdrawal, a Majority in Interest of the
Limited Partners and at least a Majority in Interest of all the remaining
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 substitute General Partner;
C. an election to dissolve the Partnership made by the General
Partner, subject to the Consent of the Limited Partners;
D. entry of a decree of judicial dissolution of the Partnership
pursuant to the provisions of the Act;
E. the sale of all or substantially all of the assets and properties
of the Partnership;
F. a bankruptcy of the General Partner within the meaning of the Act,
unless a majority in interest of the remaining Partners agree in writing to
continue the business of the Partnership and to the appointment, effective as of
a date prior to the date of such bankruptcy, of a substitute General Partner; or
G. the Exchange, Put or other redemption or exchange for REIT Shares
or REIT Series A Preferred Shares of all Partnership Units (other than those of
the General Partner) pursuant to this Agreement.
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 Partners.
No Partner 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 there is no remaining General Partner, any
Person elected by a Majority in Interest of the Limited Partners (the
"Liquidator")) shall be
69
responsible for overseeing the winding up and dissolution of the Partnership and
shall take full account of the Partnership's liabilities and property and the
Partnership property shall be liquidated as promptly as is consistent with
obtaining the fair value thereof, and the proceeds therefrom (which may, to the
extent determined by the General Partner, include shares of stock in the General
Partner) shall be applied and distributed in the following order:
(1) First, to the payment and discharge of or provision for all of
the Partnership's debts and liabilities to creditors other than
the Partners;
(2) Second, to the payment and discharge of or provision for all of
the Partnership's debts and liabilities to the General Partner;
(3) Third, to the payment and discharge of or provision for all of
the Partnership's debts and liabilities to the other Partners;
and
(4) The balance, if any, to the General Partner and Limited Partners
in accordance with their positive Capital Account balances,
determined after taking into account all Capital Account
adjustments for the Partnership taxable year during which the
liquidation occurs (other than those made as a result of the
liquidating distribution set forth in this Section 13.2.A(4)).
The General Partner shall not receive any additional compensation for any
services performed pursuant to this Article 13 other than reimbursement of its
expenses as provided in Section 7.4.
B. Notwithstanding the provisions of Section 13.2.A hereof which
require liquidation of the assets of the Partnership, but subject to the order
of priorities set forth therein, 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
Partners, 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 Partners as creditors) and/or
distribute to the Partners, 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
Partners, and shall be subject to such 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.
Section 13.3. Compliance with Timing Requirements of Regulations.
--------------------------------------------------
In the event the Partnership is "liquidated" within the meaning of
Regulations Section 1.704-1(b)(2)(ii)(g), distributions shall be made pursuant
to this Article 13 to the General Partner and Limited Partners who have positive
Capital Accounts in compliance with Regulations Section 1.704-1(b)(2)(ii)(b)(2).
If any Partner has a deficit balance in his Capital
70
Account (after giving effect to all contributions, distributions and allocations
for the taxable years, including the year during which such liquidation occurs),
such Partner 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. In the discretion of the General Partner, a pro rata portion of the
distributions that would otherwise be made to the General Partner and Limited
Partners pursuant to this Article 13 may be:
(A) distributed to a trust established for the benefit of the General
Partner and Limited Partners for the purposes of liquidating Partnership assets,
collecting amounts owed to the Partnership, and paying any contingent or
unforeseen liabilities or obligations of the Partnership or of the General
Partner arising out of or in connection with the Partnership. The assets of any
such trust shall be distributed to the General Partner and Limited Partners from
time to time, in the reasonable discretion of the General Partner, in the same
proportions and the amount distributed to such trust by the Partnership would
otherwise have been distributed to the General partner and Limited Partners
pursuant to this Agreement; or
(B) withheld to provide a reasonable reserve for partnership
liabilities (contingent or otherwise) and to reflect the unrealized portion of
any installment obligations owed to the Partnership, provided that such withheld
amounts shall be distributed to the General Partner and Limited Partners as soon
as practicable.
Section 13.4. Deemed Distribution and Recontribution.
--------------------------------------
If the Partnership is liquidated within the meaning of Regulations
Section 1.704-1(b)(2)(ii)(g) and no Liquidating Event has occurred, and is
continuing, the Partnership property shall not be liquidated, the Partnership's
debts and liabilities shall not be paid or discharged (except to the extent due
and payable in the ordinary course) and the Partnership's affairs shall not be
wound up. Instead, solely for federal income tax purposes, the Partnership
shall be deemed to have contributed the Partnership property in-kind to a "new
partnership," which shall be deemed to have taken the Partnership property
subject to all debts and liabilities of the Partnership. Immediately
thereafter, the Partnership shall be deemed to have been liquidated,
distributing new partnership interests to the Partners, all in accordance with
their respective Capital Accounts. The new partnership shall operate in
accordance with this Agreement.
Section 13.5. Rights of Limited Partners.
--------------------------
Except as otherwise provided in this Agreement, each Limited Partner
shall look solely to the assets of the Partnership for the return of his Capital
Contribution and shall have no right or power to demand or receive property from
the General Partner. Except as expressly set forth herein with respect to the
rights, priorities and preferences of the Preferred Limited Partners holding any
series of Preferred Units, no Limited Partner shall have priority over any other
Limited Partner as to the return of his Capital Contributions, distributions or
allocations.
71
Section 13.6. Notice of Dissolution.
---------------------
In the event a Liquidating Event occurs or an event occurs that would,
but for provisions of Section 13.1, result in a dissolution of the Partnership,
the General Partner shall, within 30 days thereafter, provide written notice
thereof to each of the Partners and to all other parties with whom the
Partnership regularly conducts business (as determined in the discretion of
the General Partner) and shall publish notice thereof in a newspaper of general
circulation in each place in which the Partnership regularly conducts business
(as determined in the discretion of the General Partner).
Section 13.7. Cancellation of Certificate of Limited Partnership.
--------------------------------------------------
Upon the completion of the liquidation of the Partnership cash and
property as provided in Section 13.2 hereof, the Partnership shall be terminated
and the Certificate and all qualifications of the Partnership as a foreign
limited partnership in jurisdictions other than the State of Delaware shall be
canceled and such other actions as may be necessary to terminate the Partnership
shall be taken.
Section 13.8. Reasonable Time for Winding-Up.
------------------------------
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 the Partners during the period of liquidation.
Section 13.9. Waiver of Partition.
-------------------
Each Partner hereby waives any right to partition of the Partnership
property.
ARTICLE 14.
PROCEDURES FOR ACTIONS AND CONSENTS OF PARTNERS
Section 14.1. Procedures For Actions And Consents of Partners.
-----------------------------------------------
A. The actions requiring consent or approval of the Partners or of
the Limited Partners pursuant to this Agreement, including Sections 7.3 and
16.5, or otherwise pursuant to applicable law, are subject to the following
procedures.
B. Amendments to this Agreement requiring the consent or approval of
Limited Partners may be proposed by the General Partner or by any Limited
Partners holding 25 percent or more of the Partnership Units held by Limited
Partners. Following such proposal, the General Partner shall submit any
proposed amendment to the Partners or to the Limited Partners, as appropriate.
The General Partner shall seek the written consent or approval of the Partners
or of the Limited Partners on the proposed amendment or shall call a meeting to
vote thereon and to transact any other business that it may deem appropriate.
For purposes of obtaining a written
72
consent, the General Partner may require a response within a reasonable
specified time, but not less than 15 days, and failure to respond in such time
period shall constitute a consent which is consistent with the General Partner's
recommendation (if so recommended) with respect to the proposal; provided, that,
-------- ----
an action shall become effective at such time as requisite consents are received
even if prior to such specified time. The Series A Limited Partners agree not to
object to any amendment proposed after December 31, 1998 to one or more of
Section 11.3.D, 11.6.E and 12.4 that is deemed appropriate or necessary by the
General Partner in its sole and absolute discretion, it being understood that no
such amendment would itself cause the Series A Limited Partners to be in
violation of the Agreement.
C. Meetings of the Partners may be called by the General Partner and
shall be called upon the receipt by the General Partner of a written request by
Common Limited Partners holding 25 percent or more of the Partnership Interests
held by Common Limited Partners. The call shall state the nature of the
business to be transacted. Notice of any such meeting shall be given to all
Partners not less than seven days nor more than 30 days prior to the date of
such meeting. Partners may vote in person or by proxy at such meeting.
Whenever the vote of the Percentage Interests of the Partners or Consent of the
Limited Partners is permitted or required under this Agreement, such vote or
Consent may be given at a meeting of Partners or may be given in accordance with
the procedure prescribed in Section 14.1.D.
D. 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 percentage as is expressly required by this
Agreement for the action in question. Such consent may be in one instrument or
in several instruments, and shall have the same force and effect as a vote of
the Percentage Interests of the Partners (expressly required by this Agreement).
Such 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.
E. Each Limited Partner may authorize any Person or Persons to act
for him by proxy on all matters in which a Limited 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 Limited Partner or his
attorney-in-fact. No proxy shall be valid after the expiration of 11 months
from the date thereof unless otherwise provided in the proxy. Every proxy shall
be revocable at the pleasure of the Limited Partner executing it.
F. Each meeting of Partners shall be conducted by the General Partner
or such other Person as the General Partner may appoint pursuant to such rules
for the conduct of the meeting as the General Partner or such other Person deems
appropriate.
ARTICLE 15.
GENERAL PROVISIONS
Section 15.1. 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
73
made when delivered in person or when sent by first class United States mail or
by other means of written communication (including by telecopy, facsimile, or
commercial courier service) to the Partner or Assignee at the address set forth
in Exhibit A or such other address as the Partners shall notify the General
Partner in writing.
Section 15.2. 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" and
"Sections" are to Articles and Sections of this Agreement.
Section 15.3. Pronouns and Plurals.
--------------------
Whenever the context may require, any pronoun used in this Agreement
shall include the corresponding masculine, feminine or neuter forms, and the
singular form of nouns, pronouns and verbs shall include the plural and vice
versa.
Section 15.4. 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 15.5. Binding Effect.
--------------
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their heirs, executors, administrators, successors, legal
representatives and permitted assigns.
Section 15.6. Creditors.
---------
Other than as expressly set forth herein with respect to Indemnitees,
none of the provisions of this Agreement shall be for the benefit of, or shall
be enforceable by, any creditor of the Partnership.
Section 15.7. Waiver.
------
No failure or delay 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 any breach thereof shall constitute waiver
of any such breach or any other covenant, duty, agreement or condition,
Section 15.8. 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
74
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 15.9. Applicable Law.
--------------
This Agreement shall be construed in accordance with and governed by
the laws (other than the law governing the choice of law) 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 15.10. 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 15.11. Limitation to Preserve REIT Status.
----------------------------------
To the extent that any amount paid or credited to the General Partner
or its officers, directors, employees or agents pursuant to Section 7.4 or
Section 7.7 would constitute gross income to the General Partner for purposes of
Sections 856(c)(2) or 856(c)(3) of the Code (a "General Partner Payment") then,
notwithstanding any other provision of this Agreement, the amount of such
General Partner Payments for any fiscal year shall not exceed the lesser of:
(i) an amount equal to the excess, if any, of (a) 4.17% of the
General Partner's total gross income (but not including the amount of any
General Partner Payments) for the fiscal year which is described in
subsections (A) through (H) of Section 856(c)(2) of the Code over (b) the
amount of gross income (within the meaning of Section 856(c)(2) of the
Code) derived by the General Partner from sources other than those
described in subsections (A) through (H) of Section 856(c)(2) of the Code
(but not including the amount of any General Partner Payments); or
(ii) an amount equal to the excess, if any, of (a) 25% of the
General Partner's total gross income (but not including the amount of any
General Partner Payments) for the fiscal year which is described in
subsections (A) through (I) of Section 856(c)(3) of the Code over (b) the
amount of gross income (within the meaning of Section 856(c)(3) of the
Code) derived by the General Partner from sources other than those
described in subsections (A) through (I) of Section 856(c)(3) of the Code
(but not including the amount of any General Partner Payments);
provided, however, that General Partner Payments in excess of the amounts set
-------- -------
forth in subparagraphs (i) and (ii) above may be made if the General Partner, as
a condition precedent, obtains an opinion of tax counsel that the receipt of
such excess amounts would not adversely affect the General Partner's ability to
qualify as a REIT. To the extent General Partner Payments may not be made in a
year due to the foregoing limitations, such General Partner Payments shall
75
carry over and be treated as arising in the following year, provided, however,
-------- -------
that such amounts shall not carry over for more than five years, and if not paid
within such five year period, shall expire; provided further, that (i) as
-------- -------
General Partner Payments are made, such payments shall be applied first to carry
over amounts outstanding, if any, and (ii) with respect to carry over amounts
for more than one Partnership Year, such payments shall be applied to the
earliest Partnership Year first.
Section 15.12. 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 to 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 successors-in-interest shall be subject to the
limitations and restrictions as set forth in this Agreement.
Section 15.13. No Third-Party Rights Created Hereby.
------------------------------------
The provisions of this Agreement are solely for the purpose of
defining the interests of the Partners, 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.
Section 15.14. Entire Agreement.
----------------
This Agreement (together with the Contribution Agreement as to
rights and obligations in respect of the Series A Preferred Units) contains the
entire understanding and agreement among the Partners with respect to the
subject matter hereof and supersedes any other prior written or oral
understandings or agreements among them with respect thereto.
ARTICLE 16.
SERIES A PREFERRED UNITS
Section 16.1. Designation and Number.
----------------------
A series of Partnership Units in the Partnership designated as 8%
Series A Cumulative Redeemable Preferred Units (the "Series A Preferred Units")
------------------------
is hereby established. The number of Series A Preferred Units shall be
1,500,000.
Section 16.2. Distributions.
-------------
A. Payment of Distributions. Subject to the rights of holders of
------------------------
Parity Preferred Units as to the payment of distributions, pursuant to Section
5.1 hereof, holders of Series A Preferred Units will be entitled to receive,
when, as and if declared by the Partnership
76
acting through the General Partner, out of Available Cash, cumulative
preferential cash distributions at the rate per annum of 8% of the original
Capital Contribution per Series A Preferred Unit. Such distributions shall be
cumulative, shall accrue from the original date of issuance and will be payable
(A) quarterly in arrears on or before February 15, May 15, August 15 and
November 15 of each year, commencing on May 15, 1998, and, (B) in the event of
(i) an exchange of Series A Preferred Units into REIT Series A Preferred Shares,
or (ii) a redemption of Series A Preferred Units, on the exchange date or
redemption date, as applicable (each a "Preferred Unit Distribution Payment
-----------------------------------
Date"), commencing (i) in the case of Series A Preferred Units originally issued
----
on March 4, 1998, on May 15, 1998 and (ii) in the case of all other Series A
Preferred Units, on the first of such payment dates to occur following their
original date of issuance. The amount of the distribution payable for any period
will be computed on the basis of a 360-day year of twelve 30-day months and for
any period shorter than a full quarterly period for which distributions are
computed, the amount of the distribution payable will be computed on the basis
of the actual number of days elapsed in such a 30-day month. If any date on
which distributions are to be made on the Series A Preferred Units is not a
Business Day, then payment of the distribution to be made on such date will be
made on the next succeeding day that is a Business Day (and without any interest
or other payment in respect of any such delay) except that, if such Business Day
is in the next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, in each case with the same force and effect
as if made on such date. Distributions on the Series A Preferred Units will be
made to the holders of record of the Series A Preferred Units on the relevant
record dates, which will be fifteen (15) days prior to the relevant Preferred
Unit Distribution Payment Date (the "Preferred Unit Partnership Record Date").
--------------------------------------
B. Distributions Cumulative. Notwithstanding the foregoing,
------------------------
distributions on the Series A Preferred Units will accrue whether or not the
terms and provisions of any agreement of the Partnership at any time prohibit
the current payment of distributions, whether or not the Partnership has
earnings, whether or not there are funds legally available for the payment of
such distributions and whether or not such distributions are authorized.
Accrued but unpaid distributions on the Series A Preferred Units will accumulate
as of the Preferred Unit Distribution Payment Date on which they first become
payable. Accumulated and unpaid distributions will not bear interest.
C. Priority as to Distributions. (i) So long as any Series A
Preferred Units are outstanding, no distribution of cash or other property shall
be authorized, declared, paid or set apart for payment on or with respect to any
class or series of Partnership Interest of the Partnership ranking junior as to
the payment of distributions to the Series A Preferred Units (collectively,
"Junior Units"), nor shall any cash or other property (other than capital stock
------------
of the General Partner which corresponds in ranking to the Partnership Interests
being acquired) be set aside for or applied to the purchase, redemption or other
acquisition for consideration of any Series A Preferred Units, any Parity
Preferred Units with respect to distributions or any Junior Units, unless, in
each case, all distributions accumulated on all Series A Preferred Units and all
classes and series of outstanding Parity Preferred Units as to payment of
distributions have been paid in full. The foregoing sentence will not prohibit
(a) distributions payable solely in Junior Units, (b) the exchange of Junior
Units or Parity Preferred Units into Partnership Interests of the
77
Partnership ranking junior to the Series A Preferred Units as to distributions,
(c) the redemption of Partnership Interests corresponding to REIT Series A
Preferred Shares, Parity Preferred Stock with respect to distributions or Junior
Stock to be purchased by the General Partner pursuant to the Charter with
respect to the General Partner's common stock and comparable charter provisions
with respect to other classes or series of capital stock of the General Partner
to preserve the General Partner's status as a real estate investment trust,
provided that such redemption shall be upon the same terms as the corresponding
purchase pursuant to Article IV of the Charter or such other comparable
provisions, (d) the acquisition of Common Units upon exercise of Put rights
pursuant to Section 8.6 (i) with the proceeds of a sale of Common Units or other
Junior Units by the Partnership or proceeds received from the General Partner
upon a sale of REIT Shares or other Junior Stock by the General Partner or (ii)
for cash in an amount, which, when taken together with the aggregate amount of
all cash paid previously pursuant to this clause (ii), does not exceed $5.0
million, or (e) cash distributions from the proceeds of sales of property of the
Partnership pursuant to Section 7.1.A(3).
(ii) So long as distributions have not been paid in full (or a sum
sufficient for such full payment is not irrevocably deposited in trust for
payment) upon the Series A Preferred Units, all distributions authorized and
declared on the Series A Preferred Units and all classes or series of
outstanding Parity Preferred Units with respect to distributions shall be
authorized and declared so that the amount of distributions authorized and
declared per Series A Preferred Unit and such other classes or series of Parity
Preferred Units shall in all cases bear to each other the same ratio that
accrued distributions per Series A Preferred Unit and such other classes or
series of Parity Preferred Units (which shall not include any accumulation in
respect of unpaid distributions for prior distribution periods if such class or
series of Parity Preferred Units do not have cumulative distribution rights)
bear to each other.
(iii) Notwithstanding anything to the contrary set forth herein,
distributions on Partnership Interests held by either (a) the General Partner or
(b) any other holder of Partnership Interest in the Partnership, in each case
ranking junior to or on parity with the Series A Preferred Units may be made,
without preserving the priority of distributions described in Sections 16.2.C(i)
and (ii), but only to the extent such distributions are required to preserve the
real estate investment trust status of the General Partner and, in addition, in
the case of any holder other than the General Partner only to the extent
required by the Partnership Agreement.
D. No Further Rights. Holders of the Series A Preferred Units shall
-----------------
not be entitled to any distributions, whether payable in cash, other property or
otherwise, in excess of the full cumulative distributions described herein.
Section 16.3. Liquidation Proceeds.
--------------------
A. Upon voluntary or involuntary liquidation, dissolution or winding-
up of the Partnership, distributions on the Series A Preferred Units shall be
made in accordance with Article 13 of the Partnership Agreement.
B. Notice. Written notice of any such voluntary or involuntary
------
liquidation, dissolution or winding-up of the Partnership, stating the payment
date or dates when, and the
78
place or places where, the amounts distributable in such circumstances shall be
payable, shall be given by (i) fax and (ii) by first class mail, postage pre-
paid, not less than 30 and not more that 60 days prior to the payment date
stated therein, to each record holder of the Series A Preferred Units at the
respective addresses of such holders as the same shall appear on the transfer
records of the Partnership.
C. No Further Rights. After payment of the full amount of the
-----------------
liquidating distributions to which they are entitled, the holders of Series A
Preferred Units will have no right or claim to any of the remaining assets of
the Partnership.
D. Consolidation, Merger or Certain Other Transactions. The
---------------------------------------------------
consolidation or merger or other business combination of the Partnership with or
into any corporation, trust or other entity (or of any corporation, trust or
other entity with or into the Partnership) shall not be deemed to constitute a
liquidation, dissolution or winding-up of the Partnership.
Section 16.4. Optional Redemption.
-------------------
A. Right of Optional Redemption. The Series A Preferred Units may not
----------------------------
be redeemed prior to March 4, 2003. On or after such date, the Partnership
shall have the right to redeem the Series A Preferred Units, in whole or in
part, at any time or from time to time, upon not less than 30 nor more than 60
days' written notice, at a redemption price, payable in cash, equal to the
Capital Account balance of the holder of Series A Preferred Units (the
"Redemption Price"); provided, however, that no redemption pursuant to this
----------------
Section 16.4 will be permitted if the Redemption Price does not equal or exceed
the original Capital Contribution of such holder plus the cumulative Priority
Return to the redemption date to the extent not previously distributed. If
fewer than all of the outstanding Series A Preferred Units are to be redeemed,
the Series A Preferred Units to be redeemed shall be selected pro rata (as
nearly as practicable without creating fractional units).
B. Limitation on Redemption. (i) The Redemption Price of the Series
------------------------
A Preferred Units (other than the portion thereof consisting of accumulated but
unpaid distributions) will be payable solely out of the sale proceeds of capital
stock of the General Partner, which will be contributed by the General Partner
to the Partnership as additional capital contribution, or out of the sale of
limited partner interests in the Partnership and from no other source. For
purposes of the preceding sentence, "capital stock" means any equity securities
(including Common Stock and Preferred Stock (as such terms are defined in the
Charter)), shares, participation or other ownership interests (however
designated) and any rights (other than debt securities convertible into or
exchangeable for equity securities) or options to purchase any of the foregoing.
(ii) The Partnership may not redeem fewer than all of the outstanding
Series A Preferred Units unless all accumulated and unpaid distributions have
been paid on all Series A Preferred Units for all quarterly distribution periods
terminating on or prior to the date of redemption.
79
C. Procedures for Redemption. (i) Notice of redemption will be (i)
-------------------------
faxed, and (ii) mailed by the Partnership, by certified mail, postage prepaid,
not less than 30 nor more than 60 days prior to the redemption date, addressed
to the respective holders of record of the Series A Preferred Units at their
respective addresses as they appear on the records of the Partnership. No
failure to give or defect in such notice shall affect the validity of the
proceedings for the redemption of any Series A Preferred Units except as to the
holder to whom such notice was defective or not given. In addition to any
information required by law, each such notice shall state: (a) the redemption
date, (b) the Redemption Price, (c) the aggregate number of Series A Preferred
Units to be redeemed and if fewer than all of the outstanding Series A Preferred
Units are to be redeemed, the number of Series A Preferred Units to be redeemed
held by such holder, which number shall equal such holder's pro rata share
(based on the percentage of the aggregate number of outstanding Series A
Preferred Units that the total number of Series A Preferred Units held by such
holder represents) of the aggregate number of Series A Preferred Units to be
redeemed, (d) the place or places where such Series A Preferred Units are to be
surrendered for payment of the Redemption Price, (e) that distributions on the
Series A Preferred Units to be redeemed will cease to accumulate on such
redemption date and (f) that payment of the Redemption Price will be made upon
presentation and surrender of such Series A Preferred Units .
(ii) If the Partnership gives a notice of redemption in respect of
Series A Preferred Units (which notice will be irrevocable) then, by 12:00 noon,
New York City time, on the redemption date, the Partnership will deposit
irrevocably in trust for the benefit of the holders of the Series A Preferred
Units being redeemed funds sufficient to pay the applicable Redemption Price and
will give irrevocable instructions and authority to pay such Redemption Price to
the holders of the Series A Preferred Units upon surrender of the Series A
Preferred Units by such holders at the place designated in the notice of
redemption. On and after the date of redemption, distributions will cease to
accumulate on the Series A Preferred Units or portions thereof called for
redemption, unless the Partnership defaults in the payment thereof. If any date
fixed for redemption of Series A Preferred Units is not a Business Day, then
payment of the Redemption Price payable on such date will be made on the next
succeeding day that is a Business Day (and without any interest or other payment
in respect of any such delay) except that, if such Business Day falls in the
next calendar year, such payment will be made on the immediately preceding
Business Day, in each case with the same force and effect as if made on such
date fixed for redemption. If payment of the Redemption Price is improperly
withheld or refused and not paid by the Partnership, distributions on such
Series A Preferred Units will continue to accumulate from the original
redemption date to the date of payment, in which case the actual payment date
will be considered the date fixed for redemption for purposes of calculating the
applicable Redemption Price.
Section 16.5. Voting Rights.
-------------
A. General. Holders of the Series A Preferred Units will not have
-------
any voting rights or right to consent to any matter requiring the consent or
approval of the Limited Partners, except as set forth below and in Sections
7.3.D.
80
B. Certain Voting Rights. So long as any Series A Preferred Units
---------------------
remains outstanding, the Partnership shall not, without the affirmative vote of
the holders of at least two-thirds of the Series A Preferred Units outstanding
at the time (i) authorize or create, or increase the authorized or issued amount
of, any class or series of Partnership Interests ranking senior to the Series A
Preferred Units with respect to payment of distributions or rights upon
liquidation, dissolution or winding-up or reclassify any Partnership Interests
of the Partnership into any such Partnership Interest, or create, authorize or
issue any obligations or security convertible into or evidencing the right to
purchase any such Partnership Interests, (ii) authorize or create, or increase
the authorized or issued amount of any Parity Preferred Units or reclassify any
Partnership Interest of the Partnership into any such Partnership Interest or
create, authorize or issue any obligations or security convertible into or
evidencing the right to purchase any such Partnership Interests, but only to the
extent such Parity Preferred Units are issued to an affiliate of the
Partnership, other than the General Partner to the extent the issuance of such
interests was to allow the General Partner to issue corresponding preferred
stock to persons who are not affiliates of the Partnership or (iii) either
consolidate, merge into or with, or convey, transfer or lease its assets
substantially as an entirety to, any corporation or other entity or amend, alter
or repeal the provisions of the Partnership Agreement (including, without
limitation, this Article 16), whether by merger, consolidation or otherwise, in
each case in a manner that would materially and adversely affect the powers,
special rights, preferences, privileges or voting power of the Series A
Preferred Units or the holders thereof; provided, however, that with respect to
the occurrence of any event set forth in (iii) above, so long as (a) the
Partnership is the surviving entity and the Series A Preferred Units remain
outstanding with the terms thereof unchanged, or (b) the resulting, surviving or
transferee entity is a partnership, limited liability company or other pass-
through entity organized under the laws of any state and substitutes, for the
Series A Preferred Units, other interests in such entity having substantially
the same terms and rights as the Series A Preferred Units, including with
respect to distributions, voting rights and rights upon liquidation, dissolution
or winding-up, then the occurrence of any such event shall not be deemed to
materially and adversely affect such rights, privileges or voting powers of the
holders of the Series A Preferred Units; and provided further that any increase
in the amount of Partnership Interests or the creation or issuance of any other
class or series of Partnership Interests, in each case ranking (a) junior to the
Series A Preferred Units with respect to payment of distributions or the
distribution of assets upon liquidation, dissolution or winding-up, or (b) on a
parity to the Series A Preferred Units with respect to payment of distributions
or the distribution of assets upon liquidation, dissolution or winding-up to the
extent such Partnership Interest are not issued to an affiliate of the
Partnership, other than the General Partner to the extent the issuance of such
interests was to allow the General Partner to issue corresponding preferred
stock to persons who are not affiliates of the Partnership, shall not be deemed
to materially and adversely affect such rights, preferences, privileges or
voting powers.
Section 16.6. Transfer Restrictions.
---------------------
The Series A Preferred Units shall be subject to the provisions of
Article 11 hereof; provided, however, that the Series A Preferred Units shall
not be subject to the transfer restrictions described in Section 11.3.A hereof
except for the last paragraph of Section 11.3.A (to which the Series A Preferred
Units shall be subject). No transfer of the Series A Preferred Units
81
is permitted, without the consent of the General Partner, which consent may be
given or withheld in its sole and absolute discretion, if such transfer would
result in more than four partners holding all outstanding Series A Preferred
Units within the meaning of Treasury Regulation Section 1.7704-1(h)(3);
provided, however, that the General Partner's consent may not be unreasonably
withheld if (a) such transfer would not result in more than ten partners holding
all outstanding Series A Preferred Units within the meaning of Treasury
Regulation Section 1.7704-1(h)(3) and (b) the General Partner is relying on a
provision other than Treasury Regulation Section 1.7704-1(h) to avoid
classification of Operating Partnership as a "publicly traded partnership"
within the meaning of Code Section 7704 (a "PTP"). In addition, no transfer may
---
be made to any person if such transfer would cause the exchange of the Series A
Preferred Units for REIT Series A Preferred Shares, as provided herein, to be
required to be registered under the Securities Act of 1933, as amended, or any
state securities laws. If (i) Contributor concludes based on results or
projected results that there exists (in the reasonable judgment of Contributor)
an imminent and substantial risk that the Contributor's interest in the
Partnership represents or will represent more than 19.5% of the total profits or
capital interests in the Partnership for a taxable year, (ii) Contributor
delivers to the General Partner an opinion of nationally recognized independent
counsel to the effect that there is a substantial risk that Contributor's
interest in the Partnership represents or will represent more than 19.5% (the
"19.5% Limit") of the total profits or capital interests in the Partnership
(determined in accordance with Regulations Section 1.731-2(e)(4)), and (iii) the
General Partner agrees with the conclusions referred to in clauses (i) and (ii)
of this sentence, such agreement not to be unreasonably withheld, then
Contributor shall, subject to the above limitations, be permitted to transfer so
much of its Series A Preferred Units as may be appropriate to alleviate the risk
of not satisfying the 19.5% Limit to the trust described in Exhibit D, with the
Contributor having the rights set forth in such Exhibit.
Section 16.7. Exchange Rights.
---------------
A. Right to Exchange. (i) The Series A Preferred Units will be
-----------------
exchangeable in whole but not in part unless expressly otherwise provided herein
at anytime on or after March 4, 2008, at the option of 51% of the holders of all
outstanding Series A Preferred Units, for authorized but previously unissued
REIT Series A Preferred Shares at an exchange rate of one REIT Series A
Preferred Share from the General Partner for one Series A Preferred Unit,
subject to adjustment as described below (the "Exchange Price"), provided that
-------- -----
the Series A Preferred Units will become exchangeable at any time, in whole but
not in part, unless expressly otherwise provided herein, at the option of 51% of
the holders of all outstanding Series A Preferred Units for REIT Series A
Preferred Shares, if (y) at any time full distributions shall not have been
timely made on any Series A Preferred Unit with respect to six (6) prior
quarterly distribution periods, whether or not consecutive, provided, however,
that a distribution in respect of Series A Preferred Units shall be considered
timely made if made within two (2) Business Days after the applicable Preferred
Unit Distribution Payment Date if at the time of such late payment there shall
not be any prior quarterly distribution periods in respect of which full
distributions were not timely made or (z) upon receipt by a holder or holders of
Series A Preferred Units of (A) notice from the General Partner that the General
Partner or a Subsidiary of the General Partner has taken the position that the
Partnership is, or upon the consummation of an identified event in the immediate
future will be, a PTP and (B) an opinion rendered by an
82
outside nationally recognized independent counsel familiar with such matters
addressed to a holder or holders of Series A Preferred Units, that the
Partnership is or likely is, or upon the occurrence of a defined event in the
immediate future will be or likely will be, a PTP. In addition, the Series A
Preferred Units may be exchanged for REIT Series A Preferred Shares, in whole
but not in part unless expressly otherwise provided herein, at the option of 51%
of the holders of all outstanding Series A Preferred Units prior to March 4,
2008 and after March 4, 2001 if such holders of a Series A Preferred Units shall
deliver to the General Partner either (i) a private ruling letter addressed to
such holder of Series A Preferred Units or (ii) an opinion of independent
counsel reasonably acceptable to the General Partner based on the enactment of
temporary or final Treasury Regulations or the publication of a Revenue Ruling,
in either case to the effect that an exchange of the Series A Preferred Units at
such earlier time would not cause the Series A Preferred Units to be considered
"stock and securities" within the meaning of section 351(e) of the Code for
purposes of determining whether the holder of such Series A Preferred Units is
an "investment company" under section 721(b) of the Code if an exchange is
permitted at such earlier date. Furthermore, the Series A Preferred Units, if
Contributor so determines, may be exchanged in whole but not in part (regardless
of whether held by Contributor) for REIT Series A Preferred Shares (but only if
the exchange in whole may be accomplished consistently with the ownership
limitations set forth under the Series A Articles Supplementary (as defined
herein), taking into account exceptions thereto) if (1) Contributor concludes
based on results or projected results that there exists (in the reasonable
judgment of Contributor) an imminent and substantial risk that the Contributor's
interest in the Partnership represents or will represent more than 19.5% of the
total profits or capital interests in the Partnership for a taxable year, (2)
Contributor delivers to the General Partner an opinion of nationally recognized
independent counsel, to the effect that there is a substantial risk that its
interest in the Partnership does not or will not satisfy the 19.5% Limit and (3)
the General Partner agrees with the conclusions referred to in clauses (1) and
(2) of this sentence, such agreement not to be unreasonably withheld; provided,
however, that if, as a result of such conclusion, Contributor's interest in the
Partnership is reduced pursuant to the last sentence of Section 16.6 hereof
(which procedure shall be available to Contributor to the exclusion of the
procedure under this sentence for so long as, on a cumulative basis, sales of
10% or fewer of the Series A Preferred Units originally acquired by Contributor
would in the opinion of the above-referenced counsel reduce the risk that
Contributor's interest in the Partnership would not satisfy the 19.5% Limit to
less than a substantial risk, and thereafter shall be a permitted alternative to
the procedure pursuant to this sentence) or the risk of Contributor not
satisfying the 19.5% Limit otherwise is reduced below a substantial risk, then
an exchange in whole under this sentence shall not be permitted unless and until
a change in facts occurs and a further determination by Contributor is made
under this sentence.
(ii) Notwithstanding anything to the contrary set forth in Section
16.7.A(i), if an Exchange Notice (as defined herein) has been delivered to the
General Partner, then the General Partner may, at its option, within ten (10)
Business Days after receipt of the Exchange Notice, elect to cause the
Partnership to redeem all or a portion of the outstanding Series A Preferred
Units for cash in an amount equal to the original Capital Contribution per
Series A Preferred Unit and all accrued and unpaid distributions thereon to the
date of redemption. If the General Partner elects to redeem fewer than all of
the outstanding Series A Preferred Units, the
83
number of Series A Preferred Units held by each holder to be redeemed shall
equal such holder's pro-rata share (based on the percentage of the aggregate
number of outstanding Series A Preferred Units that the total number of Series A
Preferred Units held by such holder represents) of the aggregate number of
Series A Preferred Units being redeemed.
(iii) In the event an exchange of all Series A Preferred Units
pursuant to Section 16.7.A would violate the provisions on ownership limitation
of the General Partner set forth in Section 7 of the Articles Supplementary to
the Charter with respect to REIT Series A Preferred Shares (the "Series A
Articles Supplementary"), each holder of Series A Preferred Units shall be
entitled to exchange, pursuant to the provisions of Section 16.7.B, a number of
Series A Preferred Units which would comply with the provisions on the ownership
limitation of the General Partner set forth in such Section 7 of the Series A
Articles Supplementary, with respect to such holder, and any Series A Preferred
Units not so exchanged (the "Excess Units") shall be redeemed by the Partnership
------------
for cash in an amount equal to the original Capital Contribution per Excess
Unit, plus any accrued and unpaid distributions thereon to the date of
redemption subject to any restriction thereon contained in any debt instrument
or agreement of the Partnership. In the event an exchange would result in Excess
Units, as a condition to such exchange, each holder of such units agrees to
provide representations and covenants reasonably requested by the General
Partner relating to (i) the widely held nature of the interests in such holder,
sufficient to assure the General Partner that the holder's ownership of stock of
the General Partner (without regard to the limits described above) will not
cause any individual to own in excess of 9.8% of the stock of the General
Partner; and (ii) to the extent such holder can so represent and covenant
without obtaining information from its owners, the holder's ownership of tenants
of the Partnership and its affiliates. For purposes of determining the number of
Excess Units under this Section 16.7.A(iii), the "Beneficial Ownership Limit"
and "Constructive Ownership Limit" set forth in the Series A Articles
Supplementary shall be deemed to be 9%. To the extent the General Partner would
not be able to pay the cash set forth above in exchange for the Excess Units,
and to the extent consistent with the Charter, the General Partner agrees that
it will grant to the holders of the Series A Preferred Units exceptions to the
Beneficial Ownership Limit and Constructive Ownership Limit set forth in the
Series A Articles Supplementary sufficient to allow such holders to exchange all
of their Series A Preferred Units for REIT Series A Preferred Stock, provided
such holders furnish to the General Partner representations acceptable to the
General Partner in its sole and absolute discretion which assure the General
Partner that such exceptions will not jeopardize the General Partner's tax
status as a REIT for purposes of federal and applicable state law.
Notwithstanding any provision of this Agreement to the contrary, no Series A
Limited Partner shall be entitled to effect an exchange of Series A Preferred
Units for REIT Series A Preferred Shares to the extent that ownership or right
to acquire such shares would cause the Partner or any other Person or, in the
opinion of counsel selected by the General Partner, may cause the Partner or any
other Person, to violate the restrictions on ownership and transfer of REIT
Series A Preferred Shares set forth in the Charter. To the extent any such
attempted exchange for REIT Series A Preferred Shares would be in violation of
the previous sentence, it shall be void ab initio and such Series A Limited
Partner shall not acquire any rights or economic interest in the REIT Series A
Preferred Shares otherwise issuable upon such exchange.
84
(iv) The redemption of Series A Preferred Units described in Section
16.7.A(ii) and (iii) shall be subject to the provisions of Section 16.4.B(i) and
Section 16.4.C(ii); provided, however, that the term "Redemption Price" in such
Sections 16.4.B(i) and 16.4.C(ii) shall be read to mean the original Capital
Contribution per Series A Preferred Unit being redeemed plus all accrued and
unpaid distributions to the redemption date.
B. Procedure for Exchange and/or Redemption of Series A Preferred
--------------------------------------------------------------
Units. (i) Any exchange shall be exercised pursuant to a notice of exchange
-----
(the "Exchange Notice") delivered to the General Partner by the Partners
---------------
representing at least 51% of the outstanding Series A Preferred Units (or by
Contributor in the case of an exchange pursuant to the last sentence of Section
16.7.A.(i) hereof) by (a) fax and (b) by certified mail postage prepaid. The
General Partner may effect any exchange of Series A Preferred Units, or exercise
its option to redeem any portion of the Series A Preferred Units for cash
pursuant to Section 16.7.A(ii) or redeem Excess Units pursuant to Section
16.7.A(iii), by delivering to each holder of record of Series A Preferred Units,
within ten (10) Business Days following receipt of the Exchange Notice, (a) if
the General Partner elects to cause the Partnership to exchange any of the
Series A Preferred Units then outstanding, (1) certificates representing the
Series A Preferred Shares being issued in exchange for the Series A Preferred
Units of such holder being exchanged and (2) a written notice (a "Redemption
----------
Notice") stating (A) the redemption date, which may be the date of such
------
Redemption Notice or any other date which is not later than sixty (60) days
following the receipt of the Exchange Notice, (B) the redemption price, (C) the
place or places where the Series A Preferred Units are to be surrendered and (D)
that distributions on the Series A Preferred Units will cease to accrue on such
redemption date, or (b) if the General Partner elects to cause the Partnership
to redeem all of the Series A Preferred Units then outstanding in exchange for
cash, a Redemption Notice. Series A Preferred Units shall be deemed canceled
(and any corresponding Partnership Interest represented thereby deemed
terminated) simultaneously with the delivery of shares of Series A Preferred
Shares (with respect to Series A Preferred Units exchanged) or simultaneously
with the redemption date (with respect to Series A Preferred Units redeemed).
Holders of Series A Preferred Units shall deliver any canceled certificates
representing Series A Preferred Units which have been exchanged or redeemed to
the office of General Partner (which currently is located at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ 90405) within ten (10) Business Days of the
exchange or redemption with respect thereto. Notwithstanding anything to the
contrary contained herein, any and all Series A Preferred Units to be exchanged
for REIT Series A Preferred Stock pursuant to this Section 16.7 shall be so
exchanged in a single transaction at one time. As a condition to exchange, the
General Partner may require the holders of Series A Preferred Units to make such
representations as may be reasonably necessary for the General Partner to
establish that the issuance of REIT Series A Preferred Shares pursuant to the
exchange shall not be required to be registered under the Securities Act of
1933, as amended, or any state securities laws. Any Series A Preferred Shares
issued pursuant to this Section 16.7 shall be delivered as shares which are duly
authorized, validly issued, fully paid and nonassessable, free of any pledge,
lien, encumbrance or restriction other than those provided in the Charter, the
By-Laws of the General Partner, the Securities Act and relevant state securities
or blue sky laws.
85
The certificates representing the Series A Preferred Shares issued
upon exchange of the Series A Preferred Units shall contain the following
legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE TRANSFERRED,
SOLD, ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF EXCEPT
(A) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") OR (B) IF THE
CORPORATION HAS BEEN FURNISHED WITH A SATISFACTORY OPINION OF COUNSEL
FOR THE HOLDER OF THE SHARES REPRESENTED HEREBY, OR OTHER EVIDENCE
SATISFACTORY TO THE CORPORATION, THAT SUCH TRANSFER, SALE, ASSIGNMENT,
PLEDGE, HYPOTHECATION OR OTHER DISPOSITION IS EXEMPT FROM THE
PROVISIONS OF SECTION 5 OF THE ACT AND THE RULES AND REGULATIONS
THEREUNDER.
(ii) In the event of an exchange of Series A Preferred Units for REIT
Series A Preferred Shares, an amount equal to the accrued and unpaid
distributions to the date of exchange on any Series A Preferred Units tendered
for exchange shall (i) accrue on the REIT Series A Preferred Shares into which
such Series A Preferred Units are exchanged, and (ii) continue to accrue on such
Series A Preferred Units, which shall remain outstanding following such
exchange, with the General Partner as the holder of such REIT Series A Preferred
Units. Notwithstanding anything to the contrary set forth herein, in no event
shall a holder of a Series A Preferred Unit that was validly exchanged for REIT
Series A Preferred Shares pursuant to this section (other than the General
Partner now holding such Series A Preferred Unit), receive a distribution out of
Available Cash of the Partnership, if such holder, after exchange, is entitled
to receive a distribution out of Available Cash with respect to the REIT Series
A Preferred Shares for which such Series A Preferred Unit was exchanged or
redeemed. Further, for purposes of the foregoing, in the event of an exchange of
Series A Preferred Units for REIT Shares, if the accrued and unpaid
distributions per Series A Preferred Unit is not the same for all Series A
Preferred Units, the accrued and unpaid distributions per Series A Preferred
Unit for all Series A Preferred Units shall be equal to the greatest amount of
such accrued and unpaid distributions per Series A Preferred Unit on any such
unit.
(iii) Fractional REIT Series A Preferred Shares are not to be issued
upon exchange but, in lieu thereof, the General Partner will pay a cash
adjustment based upon the fair market value of the REIT Series A Preferred
Shares on the day prior to the exchange date as determined in good faith by the
Board of Directors of the General Partner.
C. Adjustment of Exchange Price. In case the General Partner shall
----------------------------
be a party to any transaction (including, without limitation, a merger,
consolidation, statutory share exchange, tender offer for all or substantially
all of the General Partner's capital stock or sale of all or substantially all
of the General Partner's assets), in each case as a result of which the REIT
86
Series A Preferred Shares will be converted into the right to receive shares of
capital stock, other securities or other property (including cash or any
combination thereof), each Series A Preferred Unit will thereafter be
exchangeable into the kind and amount of shares of capital stock and other
securities and property receivable (including cash or any combination thereof)
upon the consummation of such transaction by a holder of that number of REIT
Series A Preferred Shares or fraction thereof into which one Series A Preferred
Unit was exchangeable immediately prior to such transaction. The General Partner
may not become a party to any such transaction unless the terms thereof are
consistent with the foregoing.
Section 16.8. No Conversion Rights
--------------------
The holders of the Series A Preferred Units shall not have any rights
to convert such Partnership Units into any other class of Partnership Interests
or any interest in the Partnership.
Section 16.9. No Sinking Fund
---------------
No sinking fund shall be established for the retirement or redemption
of the Series A Preferred Units.
Section 16.10. Reports
-------
In addition to the reports required pursuant to Section 9.3, so long
as any Series A Preferred Units are outstanding, the General Partner shall cause
to be mailed to each Series A Limited Partner:
A. As soon as available, but in no event later than ten Business Days
following the date on which the General Partner files its annual report in
respect of a fiscal year on Form 10-K, or such other applicable form ("Form 10-
K"), with the Securities and Exchange Commission (the "Commission") (or, in the
event that the Partnership is required under rules and regulations promulgated
by the Commission to file with the Commission a Form 10-K separate from General
Partner's Form 10-K, ten business days after the filing of such report by the
Partnership with the Commission), a complete copy of the Partnership's financial
statements for such fiscal year including a balance sheet, income statement and
cash flow statement for such fiscal year prepared in accordance with GAAP
(except with respect to footnotes); and
B. As soon as available, but in no event later than ten Business Days
following the date on which the General Partner files its quarterly report in
respect of a fiscal quarter on Form 10-Q, or such other applicable form ("Form
10-Q"), with the Commission (or, in the event the Partnership is required under
rules and regulations promulgated by the Commission to file with the Commission
a Form 10-Q separate from the General Partner's Form 10-Q, ten business days
after the filing of such report by the Partnership with the Commission), a
complete copy of the Partnership's unaudited quarterly financial statements for
such fiscal quarter including a balance sheet, income statement and cash flow
statement for such fiscal quarter prepared in accordance with GAAP (except with
respect to footnotes).
87
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
NATIONAL GOLF PROPERTIES, INC., as General
Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
BELAIR CAPITAL FUND LLC
By: ▇▇▇▇▇ ▇▇▇▇▇ Management, as its Manager
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇
Title: Vice President
88
EXHIBIT A
PARTNERS, CONTRIBUTIONS AND
PARTNERSHIP INTERESTS
Gross Asset Percentage
Agreed Value of Value of Interest (by
Name Cash Contributed Contributed Total Partnership class or
of Partner Contributions Property* Property Contributions Units series)
---------------------------------- ------------- --------------- ----------- ------------- ----------- ------------
(In thousands, except Units)
Common Units:
General Partner
---------------
National Golf Properties, Inc. $ 171,975 $ 40,787 $ 40,787 $ 212,762 12,229,825 58.46
Common Limited Partners
-----------------------
The Price Revocable Trust
Amendment in Entirety,
February 9, 1987 - $136,618 $178,203 $ 136,618 6,698,239 31.84
▇▇▇▇▇ ▇. ▇▇▇▇▇ - 21,211 24,529 21,211 1,041,014 4.95
Black Lake / Penasquitos Ltd. - 602 602 602 24,844 0.12
American Golf Corporation - 140 140 140 6,854 0.03
Supermarine Aviation, Ltd. - 3,107 3,112 3,107 152,498 0.72
RSJ Golf, Inc. - 137 224 137 6,732 0.03
Myreshan, Inc. - 3,041 4,660 3,041 149,273 0.71
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 1995
Revocable Trust - 5,064 6,530 5,064 248,517 1.18
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Income Trust - 1,225 2,019 1,225 60,146 0.29
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 1993
Annuity Income Trust - 1,462 1,523 1,462 71,731 0.34
▇▇▇▇▇▇▇ ▇. and ▇▇▇▇▇ ▇. ▇▇▇▇▇ - 1,705 2,651 1,705 83,701 0.40
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ - 1,132 1,998 1,132 55,550 0.26
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ - 182 182 182 8,930 0.04
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ - 619 768 619 30,361 0.14
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ - 509 659 509 25,001 0.12
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ - 1,528 1,976 1,528 75,003 0.36
----------- -------- -------- ----------- ---------- ------
- 178,282 229,776 $ 178,282 8,738,394 41.54
Total Common Units $ 171,975 $219,069 $270,563 $ 391,044 21,038,219 100.00%
Preferred Units:
Series A Limited Partners
-------------------------
Belair Capital Fund LLC (3/4/98) $60,000,000 $60,000,000 1,200,000 80.00%
Belair Capital Fund LLC (4/20/98) $15,000,000 $15,000,000 300,000 20.00%
----------- ----------- - --------------------------
$75,000,000 $75,000,000 1,500,000 100.00%
* * * * *
General Partner Properties:
Bear Creek Golf World, Houston, Texas (3 courses)
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ (1 course)
-------------------------
* Net of Debt (if any) to which the Contributed Property is subject.
A-1
EXHIBIT B
NOTICE OF [EXCHANGE] [PUT]
The undersigned hereby irrevocably (i) [exchanges] [puts] ____________
Common Limited Partnership Units in National Golf Operating Partnership, L.P. in
accordance with the terms of the Limited Partnership Agreement of National Golf
Operating Partnership, L.P. and the [Exchange Right] [Put Right] referred to
therein, (ii) surrenders such Common Limited Partnership Units and all right,
title and interest therein, and (iii) directs that the [REIT Shares] [Put
Amount] deliverable upon exercise of the right of [Exchange] [Put] be delivered
to the address specified below, [and such REIT Shares be registered or placed in
the name(s) and at the address(es) specified below.]
Dated: ________________________
Name of Common Limited Partner:
_____________________________________
(Signature of Common Limited Partner)
_____________________________________
(Street Address)
_____________________________________
(City) (State) (Zip Code)
Signature Guaranteed by:
_____________________________________
[If REIT Shares are to be issued, issue to:
Please insert social security or identifying number:
Name:]
B-1
EXHIBIT C
FORM OF UNIT CERTIFICATE
CERTIFICATE FOR PARTNERSHIP UNITS
OF
National Golf Operating Partnership, L.P.
No. ______________ [COMMON] [8% SERIES
A CUMULATIVE REDEEMABLE
PREFERRED] UNITS
National Golf Properties, Inc., as the General Partner of National
Golf Operating Partnership, L.P., a Delaware limited partnership (the
"Partnership"), hereby certifies that _________________________ is a Limited
Partner of the Partnership whose Partnership Interests therein, as set forth in
the Agreement of Limited Partnership of National Golf Operating Partnership,
L.P., as amended or supplemented from time to time (the "Partnership
Agreement"), under which the Partnership is existing and as filed in the Office
of the Secretary of State of Delaware (copies of which are on file at the
Partnership's principal office in Santa Monica, California), represent ________
[Common Units (as such term is defined in the Partnership Agreement)] [8% Series
A Cumulative Redeemable Preferred Units] (the "Partnership Units").
THE PARTNERSHIP UNITS REPRESENTED BY THIS CERTIFICATE OR INSTRUMENT
MAY NOT BE TRANSFERRED, SOLD, ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE
DISPOSED OF UNLESS SUCH TRANSFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION OR
OTHER DISPOSITION COMPLIES WITH THE PROVISIONS OF THE PARTNERSHIP AGREEMENT (A
COPY OF WHICH IS ON FILE WITH THE OPERATING PARTNERSHIP). EXCEPT AS OTHERWISE
PROVIDED IN THE PARTNERSHIP AGREEMENT, NO TRANSFER, SALE, ASSIGNMENT, PLEDGE,
HYPOTHECATION OR OTHER DISPOSITION OF THE PARTNERSHIP UNITS REPRESENTED BY THIS
CERTIFICATE MAY BE MADE EXCEPT (A) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR (B) IF
THE OPERATING PARTNERSHIP HAS BEEN FURNISHED WITH A SATISFACTORY OPINION OF
COUNSEL FOR THE HOLDER OF THE PARTNERSHIP UNITS REPRESENTED BY THIS CERTIFICATE,
OR OTHER EVIDENCE SATISFACTORY TO THE OPERATING PARTNERSHIP, THAT SUCH TRANSFER,
SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION OR OTHER DISPOSITION IS EXEMPT FROM THE
PROVISIONS OF SECTION 5 OF THE ACT AND THE RULES AND REGULATIONS IN EFFECT
THEREUNDER.
DATED: National Golf Properties, Inc.
General Partner of
National Golf Operating
Partnership, L.P.
ATTEST:
By: _________________________ By: __________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
President Secretary
C-1
EXHIBIT D
RESTRICTIONS ON OWNERSHIP AND TRANSFER TO PRESERVE TAX BENEFIT
(a) Definitions. for the purposes of this Exhibit D, the following terms shall
-----------
have the following meanings:
"Charitable Beneficiary" shall mean one or more beneficiaries of a
Trust, as determined pursuant to subsection (c)(vi), each of which shall be
an organization described in Sections 170(b)(1)(A), 170(c)(2) or 501(c)(3)
of the Code.
"Constructive Ownership" shall mean ownership of Partnership Units by
a Person who is or would be treated as an owner of such Partnership Units
either actually or constructively through the application of Section 318 of
the Code, as modified by Section 856(d)(5) of the Code. The terms
"Constructive Owner," "Constructively Owns" and "Constructively Owned"
shall have the correlative meanings.
"Exempted Person" shall mean ▇▇▇▇▇ ▇. ▇▇▇▇▇, Dallas Price, those
Persons or entities who Constructively Own the Partnership Units owned by
the Prices, and any other Person exempted from time to time by the General
Partner in its sole and absolute discretion.
"Market Price" shall mean the market price of the Partnership Units on
the relevant date as determined in good faith by the General Partner;
provided, however, if the General Partner has outstanding shares of capital
stock which correspond to such Partnership Units, the Market Price of each
such Partnership Unit shall be equal to the Value of a share of such
capital stock, subject to adjustment if the right to exchange such
Partnership Units for such stock is other than one-to-one.
"Ownership Limit" shall mean 24.5% of the capital or profits interests
of the Partnership.
"Person" shall mean an individual, corporation, partnership, limited
liability company, estate, trust (including a trust qualified under Section
401(a) or 501(c)(17) of the Code), a portion of a trust permanently set
aside for or to be used exclusively for the purposes described in Section
642(c) of the Code, association, private foundation within the meaning of
Section 509(a) of the Code, joint stock company or other entity.
"Purported Beneficial Transferee" shall mean, with respect to any
purported Transfer (or other event) which results in a transfer to a Trust,
as provided in subsection (b)(ii), the Purported Record Transferee, unless
the Purported Record Transferee would have acquired or owned Partnership
Units for another Person who
D-1
is the beneficial transferee or owner of such Partnership Units, in which
case the Purported Beneficial Transferee shall be such Person.
"Purported Record Transferee" shall mean, with respect to any
purported Transfer (or other event) which results in a transfer to a Trust,
as provided in subsection (b)(ii), the holder of the Partnership Units as
set forth or to be set forth in Exhibit A to the Partnership Agreement, and
any Assignee of such Partnership Units, if such Transfer or ownership had
been valid under subsection (b)(i).
"Restriction Termination Date" shall mean the first day after the date
hereof on which the General Partner determines, in its sole and absolute
discretion, that compliance with subsection (b)(i) is no longer necessary
or advisable.
"Transfer" shall mean any sale, transfer, gift, assignment, devise or
other disposition of Partnership Units, (including (i) the granting of any
option or entering into any agreement for the sale, transfer or other
disposition of Partnership Units or (ii) the sale, transfer, assignment or
other disposition of any securities (or rights convertible into or
exchangeable for Partnership Units), whether voluntary or involuntary,
whether such transfer has occurred of record or beneficially or
Constructively (including but not limited to transfers of interests in
other entities which results in changes in Constructive Ownership of
Partnership Units), and whether such transfer has occurred by operation of
law or otherwise.
"Trust" shall mean each of the trusts provided for in subsection (c).
"Trustee" shall mean any Person unaffiliated with the Partnership, or
a Purported Beneficial Transferee, or a Purported Record Transferee, that
is appointed by the Partnership to serve as trustee of a Trust.
Capitalized terms used and not defined herein shall have the meanings ascribed
to them in the Agreement of Limited Partnership of National Golf Operating
Partnership, L.P. (the "Partnership Agreement), as such agreement may be amended
from time to time. All references to "Section" refer to the Partnership
Agreement.
(b) Restriction on Ownership and Transfers.
--------------------------------------
(i) Prior to the Restriction Termination Date, no Person, other than an
Exempted Person, shall at any time Constructively Own Partnership Units in
excess of the Ownership Limit if the representations contained in Section
3.4.D(i)(a) are not at such time true and correct.
(ii) If, prior to the Restriction Termination Date, any Transfer or other
event occurs that, if effective, would result in any Person Constructively
Owning Partnership Units in violation of subsection (b)(i), (1) then that number
of Partnership Units that otherwise would cause such Person to violate
subsection (b)(i) (rounded up to the nearest whole Partnership Unit) shall be
D-2
automatically transferred (provided such Transfer is not in violation of the
restrictions on transfer set forth in the Partnership Agreement, except to the
extent the General Partner waives such restrictions) to a Trust for the benefit
of a Charitable Beneficiary, as described in subsection (c), effective as of the
close of business on the business day prior to the date of such Transfer or
other event, and such Purported Beneficial Transferee shall thereafter have no
rights in such Partnership Units or (2) if, for any reason, the transfer to the
Trust described in clause (1) of this sentence is not automatically effective as
provided therein to prevent any Person from Constructively Owning Partnership
Units in violation of subsection (b)(i), then the Transfer of that number of
Partnership Units that otherwise would cause any Person to violate subsection
(b)(i) shall be void ab initio, and the Purported Beneficial Transferee shall
have no rights in such Partnership Units.
(c) Transfers of Partnership Units in Trust.
---------------------------------------
(i) Upon any purported Transfer or other event described in subsection
(b)(ii), such Partnership Units shall be deemed to have been transferred to the
Trustee in his capacity as trustee of a Trust for the exclusive benefit of one
or more Charitable Beneficiaries. Such transfer to the Trustee shall be deemed
to be effective as of the close of business on the business day prior to the
purported Transfer or other event that results in a transfer to the Trust
pursuant to subsection (b)(ii). The Trustee shall be appointed by the
Partnership and shall be a Person unaffiliated with the Partnership, any
Purported Beneficial Transferee, or any Purported Record Transferee. Each
Charitable Beneficiary shall be designated by the Partnership as provided in
subsection (c)(vi).
(ii) Partnership Units held by the Trustee shall be issued and
outstanding Partnership Units of the Partnership. The Purported Beneficial
Transferee or Purported Record Transferee shall have no rights in the
Partnership Units held by the Trustee. The Purported Beneficial Transferee or
Purported Record Transferee shall not benefit economically from ownership of any
Partnership Units held in trust by the Trustee, shall have no rights to
distributions or allocations with respect to Partnership Units held in the Trust
and shall not possess any rights to vote or other rights attributable to the
Partnership Units held in the Trust.
(iii) The Trustee shall have all voting rights and rights to distributions
and allocations with respect to Partnership Units held in the Trust, which
rights shall be exercised for the exclusive benefit of the Charitable
Beneficiary. Any distribution paid prior to the discovery by the Partnership
that Partnership Units have been transferred to the Trustee shall be paid to the
Trustee upon demand, and any distribution with respect to such Partnership Units
shall be paid when due to the Trustee. Any distributions so paid over to the
Trustee shall be held in trust for the Charitable Beneficiary.
The Purported Record Transferee and Purported Beneficial Transferee shall
have no voting rights with respect to the Partnership Units held in the Trust
and, subject to Maryland law, effective as of the date the Partnership Units has
been transferred to the Trustee, the Trustee shall have the authority (at the
Trustee's sole discretion) (i) to rescind as void any vote cast by a Purported
Record Transferee with respect to such Partnership Units prior to the discovery
by the Partnership that the Partnership Units has been transferred to the
Trustee and (ii) to recast such vote
D-3
in accordance with the desires of the Trustee acting for the benefit of the
Charitable Beneficiary; provided, however, that if the Partnership has already
taken irreversible action, then the Trustee shall not have the authority to
rescind and recast such vote. Notwithstanding any other provision of this
Exhibit D to the contrary, until the Partnership has received notification that
the Partnership Units have been transferred into a Trust, the Partnership shall
be entitled to rely on its Partnership Unit transfer and other unitholder
records for purposes of preparing Exhibit A to the Partnership Agreement, lists
of unitholders entitled to vote at meetings, and otherwise conducting votes of
Partners.
(iv) Within 20 days of receiving notice from the Partnership that
Partnership Units have been transferred to the Trust, the Trustee of the Trust
shall, in accordance with the terms of (and subject to the limitations contained
in) the Partnership Agreement, sell the Partnership Units held in the Trust to a
Person, designated by the Trustee, whose ownership of the Partnership Units will
not violate the ownership limitations set forth in subsection (b)(i). Upon such
sale, the interest of the Charitable Beneficiary in the Partnership Units sold
shall terminate and the Trustee shall distribute the net proceeds of the sale to
the Purported Record Transferee and to the Charitable Beneficiary as provided in
this subsection (c)(iv). The Purported Record Transferee shall receive the
lesser of (1) the price paid by the Purported Record Transferee for the
Partnership Units in the transaction that resulted in such transfer to the Trust
(or, if the event which resulted in the transfer to the Trust did not involve a
purchase of such Partnership Units at Market Price, the Market Price of such
Partnership Units on the day of the event which resulted in the transfer of such
Partnership Units to the Trust) and (2) the price per Partnership Unit received
by the Trustee (net of any commissions and other expenses of sale) from the sale
or other disposition of the Partnership Units held in the Trust. Any net sales
proceeds in excess of the amount payable to the Purported Record Transferee
shall be immediately paid to the Charitable Beneficiary together with any
distributions thereon. If, prior to the discovery by the Partnership that
Partnership Units have been transferred to the Trustee, such Partnership Units
are sold by a Purported Record Transferee then (i) such Partnership Units shall
be deemed to have been sold on behalf of the Trust and (ii) to the extent that
the Purported Record Transferee received an amount for such Partnership Units
that exceeds the amount that such Purported Record Transferee was entitled to
receive pursuant to this subsection (c)(iv), such excess shall be paid to the
Trustee upon demand. The expenses described in item (2) above shall include any
expenses of administering the Trust, any transfer of Partnership Units thereto
or disposition of Partnership Units thereby, which shall be allocated equitably
among the Partnership Units which are transferred to the Trust.
(v) Partnership Units transferred to the Trustee shall be deemed to have
been offered for sale to the Partnership, or its designee, at a price per
Partnership Unit equal to the lesser of (i) the price paid by the Purported
Record Transferee for the Partnership Units in the transaction that resulted in
such transfer to the Trust (or, if the event which resulted in the transfer to
the Trust did not involve a purchase of such Partnership Units at Market Price,
the Market Price of such Partnership Units on the day of the event which
resulted in the transfer of such Partnership Units to the Trust) and (ii) the
Market Price on the date the Partnership, or its designee, accepts such offer.
The Partnership shall have the right to accept such offer until the Trustee has
sold the Partnership Units held in the Trust pursuant to subsection (c)(iv).
Upon such a sale to the Partnership, the interest of the Charitable Beneficiary
in the Partnership Units sold shall terminate and the Trustee
D-4
shall distribute the net proceeds of the sale to the Purported Record Transferee
and any distributions held by the Trustee with respect to such Partnership Units
shall thereupon be paid to the Charitable Beneficiary.
(vi) By written notice to the Trustee, the Partnership shall designate
one or more nonprofit organizations to be the Charitable Beneficiary of the
interest in the Trust such that (i) the Partnership Units held in the Trust
would not violate the restrictions set forth in subsection (b)(i) in the hands
of such Charitable Beneficiary and (ii) each Charitable Beneficiary is an
organization described in Sections 170(b)(1)(A), 170(c)(2) or 501(c)(3) of the
Code.
(d) Remedies For Breach. If the General Partner shall at any time
-------------------
determine in good faith that a Transfer or other event has taken place in
violation of subsection (b) or that a Person intends to acquire, has attempted
to acquire or may acquire beneficial ownership (determined without reference to
any rules of attribution) or Constructive Ownership of any Partnership Units of
the Partnership in violation of subsection (b), the General Partner shall take
such action as it deems advisable to refuse to give effect or to prevent such
Transfer, including, but not limited to, causing the Partnership to redeem
Partnership Units, refusing to give effect to such Transfer on the books of the
Partnership or instituting proceedings to enjoin such Transfer; provided,
however, that any Transfers (or, in the case of events other than a Transfer,
ownership or Constructive Ownership) in violation of subsection (b)(i), shall
automatically result in the transfer to a Trust as described in subsection
(b)(ii).
(e) Notice of Restricted Transfer. Any Person who acquires or attempts to
-----------------------------
acquire or own Partnership Units in violation of subsection (b), or any Person
who is a Purported Beneficial Transferee such that an automatic transfer to a
Trust results under subsection (b)(ii), shall immediately give written notice to
the Partnership of such event and shall provide to the Partnership such other
information as the Partnership may request in order to determine the effect, if
any, of such Transfer or attempted Transfer on such Person's compliance with
subsection (b)(i).
(f) Owners Required To Provide Information. Prior to the Restriction
--------------------------------------
Termination Date each Person who is a beneficial owner or Constructive Owner of
Partnership Units and each Person who is holding Partnership Units for a
beneficial owner or Constructive Owner shall provide to the Partnership such
information that the Partnership may request, in good faith, in order to
determine the Partnership's status as a partnership (as opposed to a
corporation) or the General Partner's status as a REIT for federal income tax
purposes.
(g) Remedies Not Limited. Nothing contained in this Exhibit D shall limit
the authority of the General Partner to take such other action as it deems
necessary or advisable to protect the Partnership and the interests of its
Partners by preservation of the Partnership's status as a partnership (as
opposed to a corporation) or the General Partner's status as a REIT for federal
income tax purposes.
(h) Ambiguity. In the case of an ambiguity in the application of any of
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the provisions of this Exhibit D, including any definition contained in
subsection (a), the General Partner shall have the power to determine the
application of the provisions of this Exhibit D with respect to any
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situation based on the facts known to it. In the event that a provision of this
Exhibit D requires an action by the General Partner and Exhibit D fails to
provide specific guidance with respect to such action, the General Partner shall
have the power to determine the action to be taken so long as such action is not
contrary to the provisions of Exhibit D. Absent a decision to the contrary by
the General Partner (which the General Partner may make in its sole and absolute
discretion), if a Person would have (but for the remedies set forth in
subsection (b)) acquired Constructive Ownership of Partnership Units in
violation of subsection (b)(i), such remedies (as applicable) shall apply first
to the Partnership Units which, but for such remedies, would have been actually
owned by such Person, and second to Partnership Units which, but for such
remedies, would have been Constructively Owned (but not actually owned) by such
Person, pro rata among the Persons who actually own such Partnership Units based
upon the relative number of the Partnership Units held by each such Person.
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