Exhibit 10.71
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AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
KRAMONT OPERATING PARTNERSHIP, L.P.
June 16, 2000
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TABLE OF CONTENTS
Page
ARTICLE 1 Defined Terms. . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE 2 Organizational Matters . . . . . . . . . . . . . . . . . . . .15
2.1 Organization . . . . . . . . . . . . . . . . . . . . . . . . .15
2.2 Name . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15
2.3 Registered Office and Agent; Principal Office. . . . . . . . .15
2.4 Power of Attorney. . . . . . . . . . . . . . . . . . . . . . .16
2.5 Term . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17
ARTICLE 3 Purpose. . . . . . . . . . . . . . . . . . . . . . . . . . . .17
3.1 Purpose and Business . . . . . . . . . . . . . . . . . . . . .17
3.2 Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . .18
ARTICLE 4 Capital Contributions. . . . . . . . . . . . . . . . . . . . .20
4.1 Capital Contributions of the Partners. . . . . . . . . . . . .20
4.2 Additional Funds . . . . . . . . . . . . . . . . . . . . . . .20
4.3 Issuance of Additional Partnership Interests; Admission of
Additional Limited Partners. . . . . . . . . . . . . . . . . .22
4.4 Repurchase of Shares; Excess Shares. . . . . . . . . . . . . .23
4.5 No Third Party Beneficiary . . . . . . . . . . . . . . . . . .24
4.6 No Interest; No Return . . . . . . . . . . . . . . . . . . . .24
4.7 No Preemptive Rights . . . . . . . . . . . . . . . . . . . . .24
ARTICLE 5 Distributions. . . . . . . . . . . . . . . . . . . . . . . . .24
5.1 Regular Distributions. . . . . . . . . . . . . . . . . . . . .24
5.2 Qualification as a REIT. . . . . . . . . . . . . . . . . . . .25
5.3 Withholding. . . . . . . . . . . . . . . . . . . . . . . . . .25
5.4 Distributions in Kind. . . . . . . . . . . . . . . . . . . . .25
5.5 Distributions Upon Liquidation . . . . . . . . . . . . . . . .25
ARTICLE 6 Allocations. . . . . . . . . . . . . . . . . . . . . . . . . .25
ARTICLE 7 Management and Operations of Business. . . . . . . . . . . . .26
7.1 Management . . . . . . . . . . . . . . . . . . . . . . . . . .26
7.2 Certificate of Limited Partnership . . . . . . . . . . . . . .30
7.3 Reimbursement of the General Partner . . . . . . . . . . . . .31
7.4 Outside Activities of the General Partner. . . . . . . . . . .31
7.5 Contracts with Affiliates. . . . . . . . . . . . . . . . . . .32
7.6 Indemnification. . . . . . . . . . . . . . . . . . . . . . . .32
7.7 Liability of the General Partner . . . . . . . . . . . . . . .34
7.8 Other Matters Concerning the General Partner . . . . . . . . .35
7.9 Title to Partnership Assets. . . . . . . . . . . . . . . . . .36
7.10 Reliance by Third Parties. . . . . . . . . . . . . . . . . . .36
ARTICLE 8 Rights and Obligations of Limited Partners . . . . . . . . . .37
8.1 Limitation of Liability. . . . . . . . . . . . . . . . . . . .37
8.2 Management of Business . . . . . . . . . . . . . . . . . . . .37
8.3 Outside Activities of Limited Partners . . . . . . . . . . . .37
8.4 Return of Capital. . . . . . . . . . . . . . . . . . . . . . .37
8.5 Rights of Limited Partners Relating to the Partnership . . . .38
8.6 Redemption Rights. . . . . . . . . . . . . . . . . . . . . . .39
ARTICLE 9 Books, Records, Accounting, and Reports. . . . . . . . . . . .43
9.1 Records and Accounting . . . . . . . . . . . . . . . . . . . .43
9.2 Fiscal Year. . . . . . . . . . . . . . . . . . . . . . . . . .43
9.3 Reports. . . . . . . . . . . . . . . . . . . . . . . . . . . .43
ARTICLE 10 Tax Matters. . . . . . . . . . . . . . . . . . . . . . . . . .44
10.1 Preparation of Tax Returns . . . . . . . . . . . . . . . . . .44
10.2 Tax Elections. . . . . . . . . . . . . . . . . . . . . . . . .44
10.3 Tax Matters Partner. . . . . . . . . . . . . . . . . . . . . .44
10.4 Withholding. . . . . . . . . . . . . . . . . . . . . . . . . .46
ARTICLE 11 Transfers and Withdrawals. . . . . . . . . . . . . . . . . . .47
11.1 Transfer . . . . . . . . . . . . . . . . . . . . . . . . . . .47
11.2 Transfer of the General Partner's and the Company's Partnership
Interests. . . . . . . . . . . . . . . . . . . . . . . . . . .47
11.3 Limited Partners' Rights to Transfer . . . . . . . . . . . . .48
11.4 Substituted Limited Partners . . . . . . . . . . . . . . . . .50
11.5 Assignees. . . . . . . . . . . . . . . . . . . . . . . . . . .50
11.6 General Provisions . . . . . . . . . . . . . . . . . . . . . .51
ARTICLE 12 Admission of Partners. . . . . . . . . . . . . . . . . . . . .52
12.1 Admission of Successor General Partner . . . . . . . . . . . .52
12.2 Admission of Additional Limited Partners . . . . . . . . . . .52
12.3 Amendment of Agreement and Certificate of Limited Partnership.53
ARTICLE 13 Dissolution, Liquidation, and Termination. . . . . . . . . . .53
13.1 Dissolution. . . . . . . . . . . . . . . . . . . . . . . . . .53
13.2 Winding Up . . . . . . . . . . . . . . . . . . . . . . . . . .54
13.3 No Obligation to Contribute Deficit. . . . . . . . . . . . . .56
13.4 Rights of Limited Partners.. . . . . . . . . . . . . . . . . .56
13.5 Notice of Dissolution. . . . . . . . . . . . . . . . . . . . .56
13.6 Termination of Partnership and Cancellation of Certificate of
Limited Partnership. . . . . . . . . . . . . . . . . . . . . .56
13.7 Reasonable Time for Winding-Up . . . . . . . . . . . . . . . .56
13.8 Waiver of Partition. . . . . . . . . . . . . . . . . . . . . .56
ARTICLE 14 Amendment of Partnership Agreement; Action by
Limited Partners . . . . . . . . . . . . . . . . . . . . . . .57
14.1 Amendments . . . . . . . . . . . . . . . . . . . . . . . . . .57
14.2 Action by Limited Partners . . . . . . . . . . . . . . . . . .58
ARTICLE 15 General Provisions . . . . . . . . . . . . . . . . . . . . . .59
15.1 Addresses and Notice . . . . . . . . . . . . . . . . . . . . .59
15.2 Titles and Captions. . . . . . . . . . . . . . . . . . . . . .59
15.3 Certain Terms. . . . . . . . . . . . . . . . . . . . . . . . .59
15.5 Further Action . . . . . . . . . . . . . . . . . . . . . . . .60
15.6 Binding Effect . . . . . . . . . . . . . . . . . . . . . . . .60
15.7 Creditors. . . . . . . . . . . . . . . . . . . . . . . . . . .60
15.8 Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . .60
15.9 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . .60
15.10 Applicable Law . . . . . . . . . . . . . . . . . . . . . . . .60
15.11 Invalidity of Provisions . . . . . . . . . . . . . . . . . . .60
15.12 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . .60
EXHIBIT A PARTNERS' CONTRIBUTIONS AND PARTNERSHIP INTERESTS (OP COMMON
UNITS)
EXHIBIT B ALLOCATIONS OF PARTNERSHIP ITEMS
EXHIBIT C FORM OF NOTICE OF REDEMPTION
EXHIBIT D PROPERTIES TO WHICH SECTION 7.1A(3) IS APPLICABLE
EXHIBIT E FORM OF LETTER
EXHIBIT F CLASS A OP PREFERRED UNITS
EXHIBIT G CLASS B-1 OP PREFERRED UNITS
EXHIBIT H CLASS D OP PREFERRED UNITS
EXHIBIT I LIMITED PARTNERS
EXHIBIT J FLORIDA LAND
AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP
OF
KRAMONT OPERATING PARTNERSHIP, L.P.
This Amended and Restated Agreement of Limited Partnership of
Kramont Operating Partnership, L.P. (the "Partnership"), dated as of June 16,
2000, is entered into by and among KRT Trust, a Maryland real estate
investment trust ("KRT Trust"), KRT Trust I LLC, a Delaware limited liability
company ("KRT Trust I LLC") and the other parties whose names are set forth
on Exhibit A attached hereto.
WHEREAS, Kramont Operating Partnership, L.P. (formerly named "KRT
Operating Partnership, L.P.") was formed pursuant to the Revised Uniform
Limited Partnership Act of the State of Delaware by filing, on November 5,
1999, a certificate of limited partnership with the Secretary of State of the
State of Delaware and the execution of an Agreement of Limited Partnership
(the "Original Agreement") by KRT Trust, as general partner and KRT Trust I
LLC, as limited partner;
WHEREAS, pursuant to a certain Agreement and Plan of
Reorganization and Merger, dated as of December 10, 1999 (the "Merger
Agreement"), among Kranzco Realty Trust ("Kranzco"), a Maryland real estate
investment trust, KRT Trust, a wholly owned subsidiary of Kranzco, CV Reit,
Inc. ("CV"), a Delaware corporation, and Kramont Realty Trust ("Kramont"), a
Maryland real estate investment trust, among other things, KRT Trust will
merge with and into Kramont (the "KRT Trust Merger") and Kramont, the
surviving entity, shall become the general partner of the Partnership and of
▇▇▇▇▇▇▇▇▇▇ ▇▇ Realty, L.P. ("CV Partnership"), an affiliate of CV;
WHEREAS, following consummation of the transactions contemplated
by the Merger Agreement and pursuant to the terms of a Unit Contribution
Agreement ("Contribution Agreement"), dated as of ▇▇▇▇▇ ▇▇, ▇▇▇▇, ▇▇▇▇▇▇▇
will contribute to the Partnership its units of general and limited partner
interest in CV Partnership in exchange for additional units of limited
partner interest in the Partnership;
WHEREAS, pursuant to the terms of the Contribution Agreement,
certain holders of units of limited partner interest in CV Partnership ("CV
LP Holders"), will either (i) contribute to the Partnership units of limited
partner interest in CV Partnership held by such holders in exchange for units
of limited partner interest in the Partnership, at which time the CV LP
Holders shall be admitted as limited partners of the Partnership, or (ii) (A)
first contribute to CV Partner Holdings, L.P., a Delaware limited partnership
("Holdings"), the units of limited partner interest in CV Partnership held by
such holders in exchange for units of limited partner interest in Holdings
and (B) then contribute to the Partnership the units of limited partner
interest in Holdings then held by such holders in exchange for units of
limited partner interest in the Partnership;
WHEREAS, pursuant to the terms of the Contribution Agreement,
after acquisition of the units of general partner and limited partner
interest in CV Partnership and the units of limited partner interest in
Holdings, described above, the Partnership will contribute all of such units
of general partner and limited partner interest in CV Partnership and
Holdings to CV GP L.P., a Delaware limited partnership (the "LP"); and
WHEREAS, the Partners desire to continue the Partnership and to
amend and to restate the Original Agreement as set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, and other valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties do hereby amend and restate the
Original Agreement in its entirety and agree as follows:
ARTICLE 1
Defined Terms
The following definitions shall be applied for all purposes of
this Agreement, unless otherwise clearly indicated to the contrary:
"Act" means the Delaware Revised Uniform Limited Partnership Act,
as it may be amended from time to time, and any successor to such statute.
"Additional Limited Partner" means a Person admitted to the
Partnership as a Limited Partner pursuant to Section 4.3 and who is shown as
such on the books and records of the Partnership.
"Adjusted Capital Account Deficit" means with respect to any
Partner, the negative balance, if any, in such Partner's Capital Account as
of the end of any relevant fiscal year, determined after giving effect to the
following adjustments:
(a) credit to such Capital Account any portion of such
negative balance which such Partner (i) is treated as obligated to restore to
the Partnership pursuant to the provisions of section 1.704-1(b)(2)(ii)(c) of
the Regulations, or (ii) is deemed to be obligated to restore to the
Partnership pursuant to the penultimate sentences of sections 1.704-2(g)(1)
and 1.704-2(i)(5) of the Regulations; and
(b) debit to such Capital Account the items described in
sections 1.704-1(b)(2)(ii)(d)(4), (5), and (6) of the Regulations.
"Adjustment Factor" means 1.0 (as adjusted from time to time in
accordance with this definition); provided that, in the event that the
Company (i) declares or pays a dividend on its outstanding Shares in Shares
or makes a distribution to all holders of its outstanding Shares in Shares,
(ii) subdivides or splits its outstanding Shares, or (iii) combines its
outstanding Shares into a smaller number of Shares, the Adjustment Factor
shall be adjusted by multiplying the Adjustment Factor by a fraction, the
numerator of which shall be the number of Shares issued and outstanding on
the record date for such dividend, distribution, subdivision, or combination
(assuming for such purposes that such dividend, distribution, subdivision, or
combination has occurred as of such time) and the denominator of which shall
be the actual number of Shares (determined without the above assumption)
issued and outstanding on the record date for such dividend, distribution,
subdivision, or combination. Any adjustment to the Adjustment Factor shall
become effective immediately after the effective date of such event
retroactive to the record date, if any, for the event giving rise thereto; it
being intended that (x) adjustments to the Adjustment Factor are to be made
in order to avoid unintended dilution or anti-dilution as a result of
transactions in which Shares are issued, redeemed, or exchanged without
corresponding issuance, redemption, or exchange of OP Units and (y) if a
Specified Redemption Date shall fall between the record date and the
effective date of any event of the type described above, the Adjustment
Factor applicable to such redemption shall be adjusted to take into account
such event.
"Affiliate" means, (a) with respect to any individual Person, any
member of the Immediate Family of such Person or a trust established for the
benefit of such member, or (b) with respect to any Entity, any Person which,
directly or indirectly through one or more intermediaries, controls, is
controlled by, or is under common control with, such Entity. For the
purposes of this definition, "control" when used with respect to any Person
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of such Person, whether through
the ownership of voting securities, by contract or otherwise, and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Agreement" means this Agreement of Limited Partnership, as
amended, modified, supplemented or restated from time to time, as the context
requires.
"Assignee" means a Person to whom one or more OP Common Units have
been transferred in a manner permitted under this Agreement, but who has not
become a Substituted Limited Partner, and who has the rights set forth in
Section 11.5.
"Available Cash" means, with respect to any applicable period of
measurement, the excess, if any, during such period of:
(a) the gross cash receipts of the Partnership from all
sources whatsoever, including, without limitation, the following:
(i) all rents, revenues, income, and proceeds derived by
the Partnership from its operations, including, without limitation,
distributions received by the Partnership from any Entity in which the
Partnership has an interest;
(ii) all proceeds and revenues received by the
Partnership on account of any sales of property of the Partnership or as
a refinancing of or payments of principal, interest, costs, fees,
penalties, or otherwise on account of any borrowings or loans made by
the Partnership or financings or refinancings of any property of the
Partnership;
(iii) the amount of any insurance proceeds and
condemnation awards received by the Partnership;
(iv) all capital contributions or loans received by
the Partnership;
(v) all cash amounts previously reserved by the
Partnership, to the extent such amounts are no longer needed for the
specific purposes for which such amounts were reserved;
(vi) the proceeds of liquidation of the Partnership's
property in accordance with this Agreement; and
(vii) reductions in reserves not accompanied by cash
expenditures;
over (b) the sum of:
(i) all operating costs and expenses, including costs
relating to tenant improvements, brokerage expenses, taxes, and other
expenses of the Properties of the Partnership and capital expenditures
made during such period (without deduction, however, for any capital
expenditures, charges for Depreciation, or other expenses not paid in
cash or expenditures from reserves);
(ii) all costs and expenses expended or paid during such
period in connection with the sale or other disposition, or acquisition,
financing or refinancing, of property of the Partnership or the recovery
of insurance or condemnation proceeds;
(iii) all fees, if any, provided for under this Agreement;
(iv) all debt service, including principal and interest,
paid during such period on all indebtedness (including under any line of
credit) of the Partnership;
(v) all capital contributions, advances, reimbursements,
or similar payments made to any Person in which the Partnership has an
interest;
(vi) all loans made by the Partnership in accordance with
the terms of this Agreement;
(vii) all reimbursements to the General Partner or its
Affiliates during such period; and
(viii) any new reserves or increases in reserves reasonably
determined by the General Partner to be necessary for working capital,
acquisitions, capital improvements, payments of periodic expenditures,
debt service, or other purposes for the Partnership or any Person in
which the Partnership has an interest.
Notwithstanding the foregoing, Available Cash shall not include any cash
received or reductions in reserves, or take into account any disbursements
made or reserves established, after commencement of the dissolution and
liquidation of the Partnership.
"Capital Account" means with respect to any Partner, the Capital
Account maintained for such Partner in accordance with section 1.704-1(b) of
the Regulations and the following provisions:
a. to each Partner's Capital Account there shall be credited
(i) such Partner's Capital Contributions, (ii) such Partner's distributive
share of Net Income and any items in the nature of income or gain which are
specially allocated to such Partner pursuant to Paragraphs 1 and 2 of Exhibit
B, and (iii) the amount of any Partnership liabilities assumed by such
Partner or which are secured by any asset distributed to such Partner;
b. to each Partner's Capital Account there shall be debited
(i) the amount of cash and the Gross Asset Value of any property distributed
to such Partner pursuant to any provision of this Agreement, (ii) such
Partner's distributive share of Net Losses and any items in the nature of
expenses or losses which are specially allocated to such Partner pursuant to
Paragraphs 1 and 2 of Exhibit B, and (iii) the amount of any liabilities of
such Partner assumed by the Partnership or which are secured by any asset
contributed by such Partner to the Partnership; and
c. in the event all or a portion of a Partnership Interest
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
related to the transferred Partnership Interest.
The foregoing provisions and the other provisions of this Agreement relating
to the maintenance of Capital Accounts are intended to comply with Sections
1.704-1(b) and 1.704-2 of the Regulations, and shall be interpreted and
applied in a manner consistent with such Regulations. In the event the
General Partner shall reasonably 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 assets or which are assumed
by the Partnership, the General Partner or any Limited Partner) are computed
in order to comply with such Regulations, the General Partner may make such
modification; provided that it does not have an adverse effect on the amounts
distributable to any Partner pursuant to Article 13 upon the dissolution of
the Partnership. The Capital Accounts of the Partners immediately after the
execution of this Agreement are set forth on Exhibit A hereto and have been
determined in accordance with Regulations Section 1.704-1(b)(2)(iv).
"Capital Contribution" means, with respect to any Partner, any
cash, cash equivalents, or the Gross Asset Value of property which such
Partner contributes or is deemed to contribute to the Partnership pursuant to
Article 4.
"Cash Amount" means an amount of cash equal to the Value on the
Specified Redemption Date of the Shares Amount.
"Certificate" means the Certificate of Limited Partnership of the
Partnership filed in the office of the Delaware Secretary of State, as
amended or restated from time to time in accordance with the terms hereof and
the Act.
"Charter" means the Declaration of Trust (or other instrument
serving a similar function) of the General Partner, as amended and restated
from time to time.
"Code" means the Internal Revenue Code of 1986, as amended and in
effect from time to time, 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.
"Company" means KRT Trust and, after the effective time of the KRT
Trust Merger, Kramont.
"Contributed Property" means each property or other asset, in such
form as may be permitted by the Act, contributed or deemed contributed to the
Partnership by any Partner (including any deemed contributions to the
Partnership on termination and reconstitution thereof pursuant to Regulations
promulgated under section 708 of the Code).
"Depreciation" means, with respect to any asset of the Partnership
for any fiscal year or other period, the depreciation, depletion,
amortization, or other cost recovery deduction, as the case may be, allowed
or allowable for Federal income tax purposes in respect of such asset for
such fiscal year or other period; provided, however, that except as otherwise
provided in the Regulations, if there is a difference between the Gross Asset
Value (including the Gross Asset Value, as increased pursuant to paragraph 1
of the definition of Gross Asset Value) and the adjusted tax basis of such
asset at the beginning of such fiscal year or other period, Depreciation for
such asset shall be an amount that bears the same ratio to the beginning
Gross Asset Value of such asset as the Federal income tax depreciation,
depletion, amortization, or other cost recovery deduction for such fiscal
year or other period bears to the beginning adjusted tax basis of such asset;
provided, further, that if the Federal income tax depreciation, depletion,
amortization, or other cost recovery deduction for such asset for such fiscal
year or other period is zero, Depreciation of such asset shall be determined
with reference to the beginning Gross Asset Value of such asset using any
reasonable method selected by the General Partner.
"Entity" means any general partnership, limited partnership,
corporation, joint venture, trust, business trust, real estate investment
trust, limited liability company, cooperative, association or other entity.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time (or any corresponding provisions of succeeding
laws).
"Florida Land" means the property described in Exhibit J.
"GAAP" means United States generally accepted accounting
principles, as in effect from time to time.
"General Partner" means KRT Trust and, after the effective time of
the KRT Trust Merger, Kramont, or any of their successors as the general
partner of the Partnership from time to time.
"General Partner Interest" means a Partnership Interest held by the
General Partner, in its capacity as general partner. A General Partner
Interest may be expressed as a number of OP Units.
"Gross Asset Value" means, with respect to any asset of the
Partnership, such asset's adjusted basis for Federal income tax purposes,
except as follows:
1. 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, without reduction for liabilities, as determined by the contributing
Partner and the Partnership on the date of contribution thereof (as reflected
on Exhibit A, as such Exhibit may be amended from time to time);
2. if the General Partner reasonably determines that an
adjustment is necessary or appropriate to reflect the relative economic
interests of the Partners, the Gross Asset Values of all Partnership assets
shall be adjusted in accordance with sections 1.704-1(b)(2)(iv)(f) and (g) of
the Regulations to equal their respective gross fair market values, without
reduction for liabilities, as reasonably determined by the General Partner,
as of the following times:
a. a Capital Contribution (other than a de minimis
Capital Contribution) to the Partnership by a new or existing Partner as
consideration for a Partnership Interest; or
b. the distribution by the Partnership to a Partner of
more than a de minimis amount of Partnership assets as consideration for the
repurchase of a Partnership Interest; or
c. the liquidation of the Partnership within the
meaning of section 1.704-1(b)(2)(ii)(g) of the Regulations;
3. the Gross Asset Values of Partnership assets distributed
to any Partner shall be the gross fair market values of such assets without
reduction for liabilities, as reasonably determined by the General Partner as
of the date of distribution; and
4. the Gross Asset Values of Partnership assets shall be
increased (or decreased) to reflect any adjustments to the adjusted basis of
such assets pursuant to sections 734(b) or 743(b) of the Code, but only to
the extent that such adjustments are taken into account in determining
Capital Accounts pursuant to section 1.704-1(b)(2)(iv)(m) of the Regulations
(as set forth in Exhibit B); provided, however, that Gross Asset Values shall
not be adjusted pursuant to this paragraph (4) to the extent that the General
Partner reasonably determines that an adjustment pursuant to paragraph (2)
above is necessary or appropriate in connection with a transaction that would
otherwise result in an adjustment pursuant to this paragraph (4).
At all times, Gross Asset Values shall be adjusted by any Depreciation taken
into account with respect to the Partnership's assets for purposes of
computing Net Income and Net Loss.
"Immediate Family" means, with respect to any individual, such
individual's spouse, parents, parents-in-law, descendants, nephews, nieces,
brothers, sisters, brothers-in-law, sisters-in-law, stepchildren,
sons-in-law, and daughters-in-law or any trust solely for the benefit of any
of the foregoing family members whose sole beneficiaries include the
foregoing family members.
"Incapacity" or "Incapacitated" means, (i) as to any individual
Partner, death, total physical disability, or entry of an order, judgment, or
decree by a court of competent jurisdiction adjudicating such Partner
incompetent to manage such Partner's person or 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 of or against such Partner under any bankruptcy, insolvency,
or other similar law now or hereafter in effect has not been dismissed within
one hundred twenty (120) days after the commencement thereof; (g) the
appointment without the Partner's consent or acquiescence of a trustee,
receiver, or liquidator has not been vacated or stayed within ninety (90)
days of such appointment; or (h) an appointment referred to in clause (g)
which has been stayed is not vacated within ninety (90) days after the
expiration of any such stay.
"Indemnitee" means (i) any Person made a party to a proceeding by
reason of (A) such Person's status as (1) the General Partner or an Affiliate
thereof, (2) a director, trustee, officer, manager or general partner of the
Partnership or the General Partner (or an Affiliate thereof), or (3) in the
case of a director, trustee, officer, manager or general partner of any other
Entity, each Person serving in such capacity at the request of the
Partnership or the General Partner, or (B) such Person's liabilities,
pursuant to a loan guarantee 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 assets subject to); and (ii) such other
Persons (including Affiliates of the General Partner or the Partnership) as
the General Partner may designate from time to time (whether before or after
the event giving rise to potential liability), in its sole and absolute
discretion.
"Kramont" means Kramont Realty Trust, a Maryland real estate
investment trust.
"KRT Trust" means KRT Trust, a Maryland real estate investment
trust.
"Lien" means any lien, security interest, mortgage, deed of trust,
charge, claim, encumbrance, pledge, option, or right of first offer or first
refusal and any other right or interest of others of any kind or nature,
actual or contingent, or other encumbrance of any nature whatsoever.
"Limited Partner" means any Person named as a Limited Partner
(other than the General Partner in its capacity as the holder of OP Preferred
Units) 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 limited partner of the Partnership. All Partners
other than the General Partner (in its capacity as General Partner) are
Limited Partners. For purposes of any vote of the Limited Partners in
connection with any merger, consolidation, or conversion involving the
Partnership (except as provided in the definition of "Qualifying Limited
Partner Interest"), the Limited Partners shall be treated as a single class
or group.
"Limited Partner Interest" means a Partnership Interest of a
Limited Partner in the Partnership representing a fractional part of the
Partnership Interests of all Limited Partners and includes any and all
benefits to which the holder of such a Partnership Interest may be entitled,
as provided in this Agreement, together with all obligations of such Person
to comply with the terms and provisions of this Agreement. A Limited Partner
Interest may be expressed as a number of OP Common Units.
"Liquidating Event" has the meaning set forth in Section 13.1.
"Liquidator" has the meaning set forth in Section 13.2.
"Master Agreement" means the Definitive Master Agreement dated as
of September 19, 1997, among CV Reit, Inc., ▇▇▇▇▇▇▇▇▇▇ ▇▇ Trust, Drexel
Realty, Inc., and certain other Persons, as amended.
"Meshon" means ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
"Net Income" or "Net Loss" means, for each fiscal year or other
applicable period, an amount equal to the Partnership's taxable income or
loss for such year or period as determined for Federal income tax purposes by
the General Partner, determined in accordance with section 703(a) of the Code
(for this purpose, all items of income, gain, loss or deduction required to
be stated separately pursuant to section 703(a) of the Code shall be included
in taxable income or loss), adjusted as follows: (a) by including as an item
of gross income any tax-exempt income received by the Partnership and not
otherwise taken into account in computing Net Income or Net Loss; (b) by
treating as a deductible expense any expenditure of the Partnership described
in section 705(a)(2)(B) of the Code (or which is treated as a section
705(a)(2)(B) expenditure pursuant to section 1.704-1(b)(2)(iv)(i) of the
Regulations) and not otherwise taken into account in computing Net Income or
Net Loss, including amounts paid or incurred to organize the Partnership
(unless an election is made pursuant to section 709(b) of the Code) or to
promote the sale of interests in the Partnership and by treating deductions
for any losses incurred in connection with the sale or exchange of
Partnership property disallowed pursuant to sections 267(a)(1) or 707(b) of
the Code as expenditures described in section 705(a)(2)(B) of the Code; (c)
by taking into account Depreciation in lieu of depreciation, depletion,
amortization, and other cost recovery deductions taken into account in
computing taxable income or loss; (d) by computing gain or loss resulting
from any disposition of Partnership property with respect to which gain or
loss is recognized for Federal income tax purposes by reference to the Gross
Asset Value of such property rather than its adjusted tax basis; (e) in the
event of an adjustment of the Gross Asset Value of any Partnership asset
which requires that the Capital Accounts of the Partnership be adjusted
pursuant to sections 1.704-1(b)(2)(iv)(e), (f), and (g) of the Regulations,
by taking into account the amount of such adjustment as if such adjustment
represented additional Net Income or Net Loss pursuant to Exhibit B; and (f)
by not taking into account in computing Net Income or Net Loss items
separately allocated to the Partners pursuant to Paragraphs 1 and 2 of
Exhibit B and Sections 4.1 and 7.3B.
"Nonrecourse Deductions" has the meaning set forth in sections
1.704-2(b)(1) and 1.704-2(c) of the Regulations.
"Nonrecourse Liabilities" has the meaning set forth in section
1.704-2(b)(3) of the Regulations.
"OP Common Unit" means a fractional, undivided share of the
Partnership Interests of all Partners issued pursuant to Sections 4.1, 4.2,
and 4.3, but does not include any OP Preferred Unit or any other OP Unit not
designated as an OP Common Unit; provided, however, that the General Partner
Interest and the Limited Partner Interests shall have the differences in
rights, preferences and privileges as specified in this Agreement. The
number of OP Common Units outstanding and the Percentage Interests in the
Partnership represented by such OP Common Units are set forth in Exhibit A,
as such Exhibit may be amended from time to time. The ownership of OP Common
Units may (but need not, in the sole and absolute discretion of the General
Partner) be evidenced by such form of certificate for OP Common Units as the
General Partner may adopt from time to time. The General Partner may reflect
on any such certificate any transfer or other restriction, forfeitability
risk, or similar matter that pertains to the OP Common Units evidenced
thereby.
"OP Preferred Unit" means a fractional undivided share of the
Partnership Interests of all Partners that the General Partner has authorized
pursuant to Section 4.3 hereof that has distribution rights, or rights upon
liquidation, winding up and dissolution, that are superior or prior to the OP
Common Units.
"OP Unit" shall mean an OP Common Unit, an OP Preferred Unit or any
other fractional share of the Partnership Interests that the General Partner
has authorized pursuant to Section 4.3 hereof (an "Other OP Unit").
"OP Unit Designation" shall have the meaning set forth in Section
4.3A hereof.
"Partner" means a General Partner or a Limited Partner, and
"Partners" means the General Partner and the Limited Partners collectively.
"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
taxable year shall be determined in accordance with the rules of Regulations
section 1.704-2(i)(2).
"Partnership" means Kramont Operating Partnership, L.P., a Delaware
limited partnership, and any successor thereto.
"Partnership Interest" means a partnership interest in the
Partnership held by either a Limited Partner or the General Partner (or the
predecessor in interest of an Assignee) and includes any and all benefits to
which the holder of such a Partnership Interest may be entitled as provided
and limited in this Agreement, together with all obligations of such Person
to comply with the terms and provisions of this Agreement. A Partnership
Interest may be expressed as a number of OP Common Units, OP Preferred Units
or other OP Units.
"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 a Partnership Minimum Gain, for a Partnership
taxable 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 pursuant to Section
5.1.
"Partnership Year" means the fiscal year of the Partnership, as set
forth in Section 9.2.
"Percentage Interest" means, as to a Partner owning OP Common Units
the fractional part of the Partnership Interests owned by such Partner and
determined from time to time by dividing the number of OP Common Units owned
by such Partner at any such time by the total number of OP Common Units
outstanding at such time.
"Permitted Partners" has the meaning set forth in subparagraph 1(b)
of Exhibit B.
"Permitted Transferee" means any person to whom OP Units are
permitted to be Transferred in accordance with Section 11.3 (determined
without regard to Section 11.3E(iii)).
"Person" means an individual or Entity.
"Qualifying Limited Partner Interest" at any time means (a) if 5%
or more of the OP Common Units at that time are not then held by the General
Partner or its Affiliates, a majority of the OP Common Units of the Limited
Partners (not including OP Common Units originally issued to the General
Partner and then held by the General Partner or its Affiliates, but
specifically including OP Common Units originally issued to other Limited
Partners and subsequently acquired by the General Partner or its Affiliates
pursuant to Section 8.6 or otherwise) and (b) otherwise, the OP Common Units
then held by the General Partner and its Affiliates.
"Regulations" means the final, temporary, or proposed Income Tax
Regulations promulgated under the Code, as such regulations may be amended
from time to time (including corresponding provisions of succeeding
regulations).
"REIT" means a real estate investment trust as defined in section
856 of the Code.
"REIT Requirements" has the meaning set forth in Section 5.2.
"Restricted Partner" has the meaning set forth in Section 1(b) of
Exhibit B.
"Section," "Article," or "Exhibit," when used without reference to
the Code, ERISA, the Act, the Regulations, regulations of the Department of
Labor, or other statute or document means a section or article of or exhibit
to, as the case may be, this Agreement.
"Share" means a common share of beneficial interest of the General
Partner, if the General Partner is a trust, and a share of common stock of
the General Partner, if the General Partner is a corporation.
"Shares Amount" means a number of Shares equal to the product of
the number of OP Common Units offered for redemption by a Redeeming Partner
times the Adjustment Factor; provided that, in the event the General Partner
issues to all holders of Shares rights, options, warrants, or convertible or
exchangeable securities entitling such holders to subscribe for or to
purchase Shares (collectively, the "rights"), then, for purposes of computing
the Cash Amount and the Shares Amount, (i) but only if the Redeeming Partner
shall tender to the General Partner the consideration then needed pursuant to
such rights if such rights are then exercisable, the Shares Amount shall also
include the number of Shares that a holder of Shares (in an amount equal to
the product of the number of OP Common Units offered for redemption times the
Adjustment Factor) would be entitled to receive upon exercise of such rights,
options, warrants, or securities or (ii) if such rights are not at such time
exercisable, the Shares Amount shall also include such rights that a holder
of that number of Shares would be entitled to receive. In the case of a
merger, consolidation, or recapitalization involving, or other change in
identity, form or place of organization of, the General Partner, the "Shares
Amount" shall mean a number of shares, certificates of beneficial interest,
cash or other property or other securities of the successor General Partner
in connection with such change equal to the product of the number of OP
Common Units offered for redemption by a Redeeming Partner times the
Adjustment Factor times the number (or fractional number) of such shares,
certificates of beneficial interest, cash or other property or other
securities issued or paid in exchange for one Share in connection with the
transaction or series of related transactions effecting such change (and such
shares, certificates of beneficial interest, cash or other property or other
securities shall be considered "Shares" for purposes hereof).
"Specified Redemption Date" means the tenth business day after
receipt by the General Partner of a Notice of Redemption.
"Stock Option Plans" means any plan adopted or assumed from time to
time by the General Partner pursuant to which Shares are issued, or options
to acquire Shares are granted, to employees, officers, directors or trustees
of the General Partner, the Partnership, or their respective Affiliates in
consideration for services or future services.
"Subsidiary" means, with respect to any Person, any corporation,
partnership, 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 (including, without limitation, through one or
more other Subsidiaries), by such Person.
"Substituted Limited Partner" means a Person who is admitted as a
limited partner to the Partnership pursuant to Section 11.4.
"Tax Items" has the meaning set forth in Exhibit B.
"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.
"Transfer," as a noun, means any sale, assignment, conveyance,
pledge, hypothecation, gift, encumbrance, or other transfer and, as a verb,
means to sell, assign, convey, pledge, hypothecate, give, encumber, or
otherwise transfer.
"Value" means, with respect to any Share, the average of the daily
market price for the ten (10) consecutive trading days immediately preceding
the date on which the Notice of Redemption is received by the General Partner
(or, if such date is not a trading day, on the next succeeding trading day).
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 ten (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 ten (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, if any, and other
information as it considers, in its reasonable judgment, appropriate. In the
event that any such Share includes rights that a holder of such share has or
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 the value of such rights, as determined, shall be added to
the value of a Share, as determined in accordance with this definition, to
determine the Value of such Share.
Certain additional terms and phrases have the meanings set forth in
Exhibit B.
ARTICLE 2
Organizational Matters
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. KRT Trust
hereby continues as the General Partner until the effective time of the KRT
Trust Merger, and KRT Trust I LLC hereby continues as a Limited Partner
until the CV LP Holders are admitted to the Partnership as Limited Partners.
At the effective time of the KRT Trust Merger, notwithstanding anything to
the contrary contained in this Agreement, including Articles 11 and 12
hereof, Kramont shall automatically and without further action be admitted to
the Partnership as the General Partner and a Limited Partner, and thereafter
KRT Trust will cease to be the General Partner. Notwithstanding anything to
the contrary contained in this Agreement, including Articles 11 and 12
hereof: (i) upon the contribution to the Partnership of their units of
limited partner interest in CV Partnership or Holdings, as contemplated by
the Contribution Agreement, the CV LP Holders shall automatically and without
further action be admitted to the Partnership as Limited Partners; and (ii)
effective immediately after the admission to the Partnership of the CV LP
Holders as Limited Partners, all rights of KRT Trust I LLC as a Limited
Partner and all of its interests in the Partnership shall be canceled without
any consideration, and the only partners of the Partnership shall be Kramont
as General Partner and as a Limited Partner and the CV LP Holders as Limited
Partners. The Partnership Interest of each Partner shall be personal
property for all purposes.
2.2 Name. The name of the Partnership is Kramont 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, upon 5 days prior written notice to the Limited
Partners, change the name of the Partnership.
2.3 Registered Office and Agent; Principal Office. The address of the
registered office of the Partnership in the State of Delaware and the name
and address of the registered agent for service of process on the Partnership
in the State of Delaware is The Corporation Trust Company, ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ or such other address and/or registered agent as
the General Partner may from time to time designate. The principal office of
the Partnership shall be ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇, 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.
2.4 Power of Attorney.
A. Each Limited Partner and each Assignee hereby constitutes and
appoints the General Partner, any Liquidator, and authorized officers and
attorneys-in-fact of each, and each of those acting singly, in each case with
full power of substitution, 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 or plans to conduct business or own property, including,
without limitation, any documents necessary or advisable to convey any
Contributed Property to the Partnership; (b) all instruments that the General
Partner deems appropriate or necessary to reflect any amendment, change,
modification, or restatement of this Agreement in accordance with its terms;
(c) all conveyances and other instruments or documents that the General
Partner or the Liquidator deems appropriate or necessary to reflect the
dissolution and termination 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 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 any Partnership Interest; and
(2) execute, swear to, seal, 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 or any Liquidator, 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 with the terms of this agreement or
appropriate or necessary, in the sole and absolute discretion of the General
Partner or any Liquidator, to effectuate the terms or intent of this
Agreement.
Nothing contained herein shall be construed as authorizing the General
Partner or any Liquidator to amend this Agreement except in accordance with
Article 14 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 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 OP 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 the
Liquidator, within fifteen (15) days after receipt of the General Partner's
or Liquidator's request therefor, such further designations, 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.
2.5 Term. The term of the Partnership commenced on the date the
Certificate was filed and shall continue until December 31, 2096, unless the
Partnership is dissolved sooner pursuant to the provisions of Article 13 or
as otherwise provided by law.
ARTICLE 3
Purpose
3.1 Purpose and Business. The purpose and nature of the business to be
conducted by the Partnership is to conduct any business that may be lawfully
conducted by a limited partnership formed pursuant to the Act including,
without limitation, to engage in the following activities: to acquire, hold,
own, develop, construct, improve, maintain, manage, operate, sell, lease,
transfer, encumber, convey, exchange, and otherwise dispose of or deal with
real and personal property of all kinds; to undertake such other activities
as may be necessary, advisable, desirable, incidental, or convenient to the
business of the Partnership; to acquire, hold, own, sell, transfer, encumber,
convey, exchange, and otherwise dispose of general partner and limited
partner interests in CV Partnership and Holdings (and the membership
interests in CV OP Holdings LLC) which may be held directly by the
Partnership or through the LP, and to act and to cause the LP to act as a
general partner and a limited partner of CV Partnership and Holdings (and as
sole member of CV OP Holdings LLC); to acquire, hold, own, sell, transfer,
encumber, convey, exchange, and otherwise dispose of partnership interests in
the LP and in limited liability company interests in CV GP LLC, the general
partner of the LP ("CV GP LLC"), and to act as a limited partner of the LP
and as a member of CV GP LLC; and to engage in such other ancillary
activities as shall be necessary or desirable to effectuate the foregoing
purposes, all with a view to enabling the Partnership, consistent with
operation of the Partnership in a prudent manner, to make pro rata
distributions to all Partners sufficient to cause the Company to continue to
qualify as a REIT to which the provisions of part II of subchapter M of
chapter 1 of the Code apply; provided, however, that such business shall be
limited to and conducted in such a matter as to permit the General Partner at
all times to be classified as a real estate investment trust for federal
income tax purposes. The Partnership shall have all powers necessary,
advisable, desirable, incidental, or convenient to accomplish the purposes
enumerated. In connection with the foregoing, but subject to all of the
terms, covenants, conditions, and limitations contained in this Agreement and
any other agreement entered into by the Partnership, the Partnership shall
have full power and authority to enter into, perform, and carry out contracts
of any kind, to borrow money and to issue evidences of indebtedness, whether
or not secured by mortgage, trust deed, pledge, or other Lien, and, directly
or indirectly, to acquire and construct additional properties necessary or
useful in connection with its business. Notwithstanding anything in this
Agreement to the contrary, the Company has the right to fail to qualify as a
REIT to which the provisions of part II of subchapter M of chapter 1 of the
Code apply.
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 (including specifically, but without limitation, to exercise all
of the powers set out in Section 7.1); provided, that the Partnership shall
refrain from taking any action which, in the General Partner's good faith
belief, (i) could adversely affect the ability of the Company to continue to
qualify as a REIT to which the provisions of part II of subchapter M of
chapter 1 of the Code apply (and as a "corporation subject to a tax imposed
by subchapter M," within the meaning of section 11(c) of the Code); (ii)
could subject the Company to any additional taxes or other liability under
the Code, including specifically, but without limitation, under sections 30,
42, 45A, 49, 50, 55, 453, 453A, 531, 541, 857, 1294, or 4981 of the Code; or
(iii) could violate any law or regulation of any governmental body or agency
having jurisdiction over the General Partner, its Affiliates, or their
respective securities or properties.
Section (i) Representations and Warranties by the Parties.
A. Each Partner that is an individual admitted to the Partnership
as a Partner after the date hereof (including, without limitation, each
Additional Limited Partner or Substituted Limited Partner as a condition to
becoming an Additional Limited Partner or a Substituted Limited Partner)
represents and warrants to each other Partner(s) that (i) the consummation of
the transactions contemplated by this Agreement to be performed by such
Partner will not result in a breach or violation of, or a default under, any
material agreement by which such Partner or any of such Partner's property is
bound, or any statute, regulation, order or other law to which such Partner
is subject, (ii) such Partner is neither a "foreign person" within the
meaning of Code Section 1445(f) nor a "foreign partner" within the meaning of
Code Section 1446(e), and (iii) this Agreement is binding upon, and
enforceable against, such Partner in accordance with its terms.
B. Each Partner admitted to the Partnership as a Partner after
the date hereof (including, without limitation, each Additional Limited
Partner or Substituted Limited Partner as a condition to becoming an
Additional Limited Partner or a Substituted Limited Partner) that is not an
individual represents and warrants to each other Partner(s) that (i) all
transactions contemplated by this Agreement to be performed by it have been
duly authorized by all necessary action, including, without limitation, that
of its general partner(s), committee(s), trustee(s), beneficiaries, directors
and/or shareholder(s), as the case may be, as required, (ii) the consummation
of such transactions shall not result in a breach or violation of, or a
default under, its partnership or operating agreement, trust agreement,
charter or bylaws, as the case may be, any material agreement by which such
Partner or any of such Partner's properties or any of its partners, members,
beneficiaries, trustees or shareholders, as the case may be, is or are bound,
or any statute, regulation, order or other law to which such Partner of any
of its partners, members trustees, beneficiaries or shareholders, as the case
may be, is or are subject, (iii) such Partner is neither a "foreign person"
within the meaning of Code Section 1445(f) nor a "foreign partner" within
the meaning of Code Section 1446(e) and (iv) this Agreement is binding upon,
and enforceable against, such Partner in accordance with its terms.
C. Each Partner admitted to the Partnership as a Partner after
the date hereof (including, without limitation, each Substituted Limited
Partner as a condition to becoming a Substituted Limited Partner) represents,
warrants and agrees that it has acquired 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 such Partner further represents and warrants that (together with its
advisors and/or investor representative) it is a sophisticated investor, able
and accustomed to handling sophisticated financial matters for itself,
particularly real estate investments, and that it has a sufficiently high net
worth that it does not anticipate a need for the funds that it has invested
in the Partnership.
D. The representations and warranties contained in Sections
3.3.A, 3.3.B and 3.3.C hereof shall survive the execution and delivery of
this Agreement by each Partner (and, in the case of an Additional Limited
Partner or Substituted Limited Partner, the admission of such Additional
Limited Partner or Substituted Limited Partner as a Limited Partner in the
Partnership) and the dissolution, liquidation and termination of the
Partnership.
E. Each Partner (including, without limitation, each Substituted
Limited Partner as a condition to becoming a Substituted Limited Partner)
hereby acknowledges that no representations as to potential profit, cash
flows, taxable income or loss, 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 any projections submitted to such Partner shall not constitute any
representation or warranty of any kind or nature, express or implied. Each
Partner (including, without limitation, each Substituted Limited Partner as a
condition to becoming a Substituted Limited Partner) hereby acknowledges that
no projections as to taxable income or loss in respect to the Partnership or
the General Partner or the business or financial condition or property of the
Partnership or the General Partner have been submitted to such Partner by any
Partner or an employee or representative or Affiliate of any Partner, and
each Partner is relying on its own tax advisors with respect to the
transactions contemplated by this Agreement.
ARTICLE 4
Capital Contributions
4.1 Capital Contributions of the Partners.
A. The Limited Partners owning OP Common Units have made, or upon
the consummation of the transactions contemplated by the Contribution
Agreement, will have made, the Capital Contributions and have been issued, or
upon consummation of the transactions contemplated by the Contribution
Agreement, will have been issued, OP Common Units in exchange therefor and
have, or upon consummation of the transactions contemplated by the
Contribution Agreement, will have, the Percentage Interest in the
Partnership, all as set forth in Exhibit A (as such Exhibit A may hereafter
be amended or corrected by the General Partner to reflect the provisions
hereof). The General Partner has made the Capital Contributions and has been
issued the OP Common Units and the OP Preferred Units in exchange therefor,
all as set forth in Exhibit A (and footnote 3 thereto) (as such Exhibit A may
be amended or corrected by the General Partner to reflect the provisions
hereof). To the extent the Partnership acquires any property by the merger
of any other Entity into the Partnership, or by the contribution to the
Partnership of interests in other Entities, including general partner or
limited partner interests of CV Partnership or Holdings (and the membership
interests in CV OP Holdings LLC), Persons who receive Partnership Interests
in exchange for their interests in the Entity merging into the Partnership
or, in the case of a contribution to the Partnership of interests in other
Entities, in exchange for such interests in the other Entities, shall be
deemed to have made Capital Contributions as provided in the applicable
merger agreement, the applicable contribution agreement, or any other
applicable document and as set forth in Exhibit A. The number of OP Common
Units held by the General Partner, in its capacity as general partner, shall
be deemed to be the General Partner Interest.
B. The Partners shall have no obligation to make any additional
Capital Contributions or loans to the Partnership.
4.2 Additional Funds.
A. The sums of money required to finance the business and affairs
of the Partnership shall be derived from, among other things, the initial
Capital Contributions made to the Partnership by the Partners as set forth in
Section 4.1 and from funds generated from the operation and business of the
Partnership including, without limitation, distributions directly or
indirectly received by the Partnership from any Entity. The General Partner
may, in its sole and absolute discretion, in such amounts and at such times
as it solely shall determine to be necessary or appropriate, (i) cause the
Partnership to issue additional Partnership Interests and admit additional
limited partners to the Partnership in accordance with Section 4.3; (ii) make
additional Capital Contributions to the Partnership (subject to the
provisions of Section 4.2B); (iii) in the event additional financing is
needed from sources other than as set forth in the preceding sentence for any
reason, cause the Partnership to borrow money, enter into loan arrangements,
issue debt securities, obtain letters of credit, or otherwise borrow money on
a secured or unsecured basis; (iv) make a loan or loans to the Partnership
(subject to Section 4.2B); or (v) except as provided in Section 7.1A(3), sell
any assets or properties of the Partnership.
B. In no event shall the Limited Partners be required to make any
additional Capital Contributions or any loan to, or otherwise provide any
financial accommodation for the benefit of, the Partnership.
C. If the Company shall issue any debt securities (otherwise than
to enable the Company to pay any dividend required to cause the Company to
continue to qualify as a REIT to which the provisions of part II of
subchapter M of chapter 1 of the Code apply), preferred stock, or common
stock (including additional Shares (otherwise than (i) in connection with
payment of the Shares Amount pursuant to Section 8.6 of this Agreement (but
not pursuant to Section 8.6 of the Second Amended and Restated Agreement of
Limited Partnership of CV Partnership) or (ii) in connection with the
conversion or exchange of securities of the Company solely in conversion or
exchange for other securities of the Company)) or rights, options, warrants,
or convertible or exchangeable securities containing the right to subscribe
for or purchase any of the foregoing (collectively, "Securities"), the
Company shall (i) in the case of debt securities, lend to the Partnership an
amount equal to the proceeds of or consideration received for such Securities
on the same terms and conditions, including interest rate and repayment
schedule, as shall be applicable with respect to or incurred in connection
with the issuance of such Securities and the proceeds of, or consideration
received from, any exercise, exchange, or conversion thereof (if applicable);
(ii) in the case of equity Securities senior or junior to the Shares as to
dividends and distributions on liquidation, contribute to the Partnership an
amount equal to the proceeds of or consideration (including any property or
other non-cash assets) received for such Shares or other Securities and the
proceeds of, or consideration received from, any exercise, exchange, or
conversion thereof (if applicable), and receive from the Partnership
interests in the Partnership in consideration therefor with the same economic
terms and conditions, including dividend, dividend priority, and liquidation
preference, as are applicable to such Securities; and (iii) in the case of
Shares or other equity Securities on a parity with the Shares as to dividends
and distributions on liquidation (including, without limitation, Shares or
other Securities issued upon exercise of options issued under the Stock
Option Plans), contribute to the Partnership an amount equal to the proceeds
of or consideration (including any property or other non-cash assets)
received for such Shares or other Securities and the proceeds of, or
consideration received from, any subsequent exercise, exchange, or conversion
thereof (if applicable), and receive from the Partnership a number of
additional OP Common Units in consideration therefor equal to the product of
(x) the number of Shares or other equity Securities on a parity with Shares
(appropriately adjusted if such parity is not share-for-share) issued by the
Company, multiplied by (y) a fraction the numerator of which is one and the
denominator of which is the Adjustment Factor in effect on the date of such
contribution. Notwithstanding the foregoing, if at any time the Company
issues any Shares pursuant to a Stock Option Plan (whether pursuant to the
exercise of a stock option or the grant of a restricted share award or
otherwise), the following shall occur with respect to each such Share: (i)
the Company shall be deemed to contribute to the capital of the Partnership
an amount of cash equal to the current per share market price of a Share on
the date such share is issued (or, if earlier, the date the related option is
exercised); (ii) the Partnership shall be deemed to purchase from the Company
a Share for an amount of cash equal to the amount of cash deemed contributed
by the Company to the Partnership in clause (i) above (and such Share is
deemed delivered to its owner under the Stock Option Plan); (iii) the net
proceeds (including the amount of any payments made on a loan with respect to
a stock purchase award) received by the Company with respect to such Share,
if any, shall be concurrently transferred to the Partnership (and such net
proceeds so transferred shall not constitute a capital contribution); and
(iv) the Partnership shall issue to the Company for each such Share one (1)
additional OP Common Unit registered in the name of the Company. The
Partnership shall retain any net proceeds that are paid directly to the
Partnership.
4.3 Issuance of Additional Partnership Interests;
Admission of Additional Limited Partners.
A. General. The General Partner is hereby authorized to cause
the Partnership (i) to issue additional Partnership Interests, in the form of
OP Common Units for any Partnership purpose, at any time or from time to
time, to the Partners (including the General Partner) or to other Persons,
and to admit such Persons as Additional Limited Partners, for such
consideration and on such terms and conditions as shall be established by the
General Partner in its sole discretion, and (ii) to issue additional
Partnership Interests, in the form of OP Preferred Units or other OP Units to
the General Partner, without further consideration, but only to the extent
and with such economic terms and for such periods as shall be necessary to
provide the General Partner with distributions at such times and in such
amounts as shall be required to meet its payment obligations under the
provisions of any class of preferred stock or other equity securities of the
General Partner then issued and outstanding, provided that (y) such OP Units
shall not be transferable by the General Partner except to a successor to the
Company which becomes General Partner and (z) such OP Preferred Units or
other OP Units (other than OP Common Units) issued to the General Partner
shall not entitle the holder thereof to vote on matters on which the Partners
holding OP Common Units may vote; in each case, all without the approval of
any Limited Partners. Subject to the foregoing, the General Partner is
expressly authorized to cause the Partnership to issue OP Units (i) upon the
conversion, redemption or exchange of any Debt, OP Units or other securities
issued by the Partnership, (ii) for less than fair market value, so long as
the General Partner concludes in good faith that such issuance is in the best
interests of the Partnership, and (iii) in connection with any merger of any
other Person into the Partnership. Subject to Delaware law and only as
permitted by the first sentence of this Section 4.3A, any additional
Partnership Interests may be issued in one or more classes, or one or more
series of any of such classes, with such designations, preferences and
relative, participating, optional or other special rights, powers and duties
as shall be determined by the General Partner, in its sole and absolute
discretion without the approval of any Limited Partner, and such rights,
powers and duties shall be set forth in a written document thereafter
attached to and made an exhibit to this Agreement (each, an "OP Unit
Designation"). On the date hereof, the Partnership has issued Class A-1,
Class B-1 and Class D OP Preferred Units, in the amounts and with the
designations, preferences and rights, powers and duties set forth on the OP
Unit Designations attached hereto as Exhibits F, G and H, respectively.
Without limiting the generality of the foregoing and only as permitted by the
first sentence of this Section 4.3A, the General Partner shall have authority
to specify (a) the allocation of items of Partnership income, gain, loss,
deduction and credit to each such class or series of Partnership Interests;
(b) the right of each such class or series of Partnership Interests to share
in Partnership distributions; (c) the rights of each such class or series of
Partnership Interests upon dissolution and liquidation of the Partnership;
(d) the voting rights, if any, of each such class or series of Partnership
Interests; and (e) the conversion, redemption or exchange rights applicable
to each such class or series of Partnership Interests and such other rights,
preferences and privileges as the General Partner may determine. Upon the
issuance of any additional Partnership Interests, the General Partner shall
amend Exhibit A as appropriate to reflect such issuance.
B. Notwithstanding the foregoing, no issuance of Partnership
Interests pursuant to this Section 4.3 shall be made if (i) such issuance has
a material adverse impact (as such material adverse impact is determined in
the good faith discretion of the General Partner's Board of Directors) on (A)
the existing Limited Partners' right to exercise their rights under Section
8.6, (B) the economic effect upon the Limited Partners of the allocations set
forth in Exhibit B (other than due to the issuance of OP Units or other
interests in the Partnership as set forth in this Section 4.3), (ii) such
issuance causes the Partnership to become, with respect to any employee
benefit plan subject to title I of ERISA or section 4975 of the Code, a
"party in interest" (as defined in section 3(14) of ERISA) or a "disqualified
person" (as defined in section 4975(e) of the Code); and (iii) such issuance
would not cause any portion of the assets of the Partnership to constitute
"plan assets" within the meaning of the regulations promulgated by the
Department of Labor, at 29 C.F.R. Section 2510.3-101. Subject to the
limitations set forth in the preceding sentence and in Articles 11 and 12,
the General Partner may take such steps as it, in its reasonable discretion,
deems necessary or appropriate to admit any Person as a Limited Partner of
the Partnership, including, without limitation, amending Exhibit A or any
other provisions of this Agreement (except as provided in Section 14.1C)
4.4 Repurchase of Shares; Excess Shares. In the event that the General
Partner or any Affiliate thereof shall elect to purchase from the Company's
shareholders Shares for the purpose of delivering such Shares to satisfy an
obligation under any dividend reinvestment program adopted by the Company or
any Affiliate thereof, any employee stock purchase plan adopted by the
Company or any Affiliate thereof, or any other obligation or arrangement
undertaken by the Company or any Affiliate thereof in the future, the
purchase price paid by the Company or any Affiliate thereof for such Shares
and any other expenses incurred by the Company or any Affiliate thereof in
connection with such purchase shall be considered expenses of the Partnership
and shall be reimbursed to the Company or such Affiliate, subject to the
condition that: (i) if such Shares subsequently are to be sold by the Company
or any Affiliate thereof, as provided in Section 4.2B, the Company shall pay
to the Partnership an amount equal to any net proceeds received by the
Company or such Affiliate for such Shares (provided that an exchange of
Shares for OP Units pursuant to Section 8.6 would not be considered a sale
for such purposes); and (ii) if such Shares are not sold by the Company or
any Affiliate thereof within 30 days after the purchase thereof, the General
Partner shall cause the Partnership to cancel a number of OP Units held by
the Company, as a Limited Partner, equal to the product of (x) the number of
such Shares and (y) a fraction, the numerator of which is one and the
denominator of which is the Adjustment Factor in effect on the date of such
contribution.
4.5 No Third Party Beneficiary. No creditor or other third party
having dealings with the Partnership shall have the right to enforce the
right or obligation of any Partner to make Capital Contributions or loans or
to pursue any other right or remedy hereunder or at law or in equity, it
being understood and agreed that the provisions of this Agreement shall be
solely for the benefit of, and may be enforced solely by, the parties hereto
and their respective successors and assigns.
4.6 No Interest; No Return. No Partner shall be entitled to interest
on its Capital Contribution or on such Partner's Capital Account. Except as
provided herein or by law, no Partner shall have any right to demand or
receive the return of its Capital Contribution from the Partnership.
4.7 No Preemptive Rights. Subject to any preemptive rights that may be
granted pursuant to Section 4.3, no Person shall have any preemptive or other
similar right with respect to (i) additional Capital Contributions or loans
to the Partnership or (ii) issuance or sale of any OP Units or other
Partnership Interests.
ARTICLE 5
Distributions
5.1 Regular Distributions. Subject to the payment of any amounts
required to be made to the General Partner in priority to the Limited
Partners pursuant to any OP Unit Designation, and except for distributions
pursuant to Section 13.2 in connection with the dissolution and liquidation
of the Partnership, and subject to the provisions of Sections 5.3, 5.4, and
5.5, the General Partner shall cause the Partnership to distribute, from time
to time as determined by the General Partner, but in any event not less
frequently than quarterly, all or such portion as the General Partner may in
its sole discretion determine, of Available Cash generated by the Partnership
during such quarter, to the holders of OP Common Units in accordance with
their respective OP Common Units held on the Partnership Record Date with
respect to such quarter; provided, however, that in no event may a Partner
receive a distribution of Available Cash with respect to an OP Unit if such
Partner is entitled to receive a distribution out of such Available Cash with
respect to a Share for which such OP Unit has been exchanged. Except as may
otherwise be provided in the terms of any OP Unit Designation, distributions
payable with respect to OP Units (other than OP Units held by the General
Partner and any other OP Common Units issued pursuant to the Contribution
Agreement) that were not outstanding during the entire quarterly period in
respect of which any distribution is made shall be prorated based on the
portion of the period such interests were outstanding.
5.2 Qualification as a REIT. The General Partner may cause the
Partnership (including, without limitation, by causing any Entity in which
the Partnership holds an interest to make distributions to the Partnership)
to distribute sufficient amounts under this Article 5 to enable the General
Partner to make distributions sufficient to (i) satisfy the requirements for
qualifying as a REIT under the Code and Regulations ("REIT Requirements"),
and (ii) avoid any Federal income or excise tax liability of the Company
(provided, however, that a general partner of the Partnership shall not be
bound to comply with this covenant to the extent such distributions would
violate applicable Delaware law).
5.3 Withholding. With respect to any withholding tax or other similar
tax liability or obligation to which the Partnership may be subject as a
result of any act or status of any Partner or to which the Partnership
becomes subject with respect to any OP Unit, the Partnership shall have the
right to withhold amounts of Available Cash distributable to such Partner or
with respect to such OP Units, to the extent of the amount of such
withholding tax or other similar tax liability or obligation pursuant to the
provisions contained in Section 10.4.
5.4 Distributions in Kind. No right is given to any Unit holder to
demand and receive property other than cash as provided in this Agreement.
The General Partner may determine, in its sole discretion, to make a pro rata
distribution in kind of Partnership assets to the Partners.
Capital Transaction and any other cash received or reductions in reserves
made after commencement of the liquidation of the Partnership shall be
distributed to the Partners in accordance with Section 13.2. Notwithstanding
any provision to the contrary contained in this Agreement (including any OP
Unit Designation), the Partnership, and the General Partner on behalf of the
Partnership, shall not be required to make a distribution to a Partner or
holder of an OP Unit on account of its interest in the Partnership if such
distribution would violate Section 17-607 of the Act or any other applicable
law.
ARTICLE 6
Allocations
Subject to the allocations provided in any OP Unit Designation, the
Net Income, Net Loss, and other items of the Partnership shall be allocated
pursuant to the provisions of Section 7.3B and Exhibit B.
ARTICLE 7
Management and Operations of Business
7.1 Management.
A. Except as otherwise expressly provided in this Agreement, all
management powers over the business and affairs of the Partnership are and
shall be exclusively vested in the General Partner, and no Limited Partner
shall have any right to participate in or exercise control or management
power over the business and affairs of the Partnership. 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
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) (a) the making of any expenditures, the lending or
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 sufficient to permit the Company (so long as the
Company qualifies 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) and to make distributions to its shareholders in amounts sufficient to
permit the Company to maintain REIT status, (b) the assumption or guarantee
of, or other contracting for, indebtedness and other liabilities, (c) the
issuance of evidences of indebtedness (including the securing of the same by
deed, mortgage, deed of trust, or other lien or encumbrance on the
Partnership's assets), (d) the incurring of any obligations it deems
necessary for the conduct of the activities of the Partnership, and (e) the
execution and delivery, on the Partnership's behalf, of evidences of
indebtedness and documents granting security for the payment thereof (with or
without warrant of attorney to confess judgment against the Partnership upon
default) and, without limiting the generality of the foregoing, the granting
of a warrant of attorney to confess judgment against the Partnership;
(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, transfer, mortgage, pledge,
encumbrance, hypothecation, or exchange of any assets of the Partnership, the
LP, CV GP LLC or of CV Partnership, of which the Partnership or the LP is the
General Partner (including the exercise or grant of any conversion, option,
privilege, or subscription right or other right available in connection with
any assets at any time held by the Partnership), or the merger or other
combination or conversion of the Partnership with or into another entity;
provided that (a) no disposition (including a disposition described in
Section 7.1A(23)) of an interest in a property listed on Exhibit D (whether
by disposition of such property or by disposition of the Partnership's
interest in an Entity owning such property) may be made prior to the date
listed with respect to such property on Exhibit D (but only to the extent the
person listed with respect to such property on Exhibit D is a Limited Partner
hereunder), without the consent of each person listed with respect to such
property on Exhibit D (b) (x) prior to August 1, 2000, except with the
consent or at the request of Meshon and ▇▇▇▇ ▇▇▇▇▇ (but only to the extent
each is a Limited Partner hereunder), in the case of the Woodbourne Square
Shopping Center shopping center, or (y) prior to July 31, 2002, except with
the consent or at the request of Meshon, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇ and
▇▇▇▇ ▇. ▇▇▇▇▇ (but only to the extent each is a Limited Partner hereunder),
in the case of the Chesterbrook Shopping Center Plaza shopping center, or (z)
prior to June 24, 2002, except with the consent or at the request of Marlton
Crossing Shopping Center Limited Partnership, a New Jersey limited
partnership (but only to the extent it is a Limited Partner), in the case of
the Marlton Crossing Shopping Center Phase I (the "Marlton Center"), or,
notwithstanding clauses (x), (y), and (z), except as required under the
Master Agreement, the Partnership shall take no action (other than making
capital improvements to the property involved, causing a sale not otherwise
prohibited hereunder of the property involved or the Partnership's interest
therein, making the principal amortization payments scheduled under the
respective loan documents in effect on the date hereof, or issuing additional
Partnership Interests under Section 4.3) which, of itself, would cause a
reduction in the share of Meshon or ▇▇▇▇ ▇▇▇▇▇, (but only to the extent each
is a Limited Partner hereunder) of the liabilities to which the Woodbourne
Square Shopping Center and Chesterbrook Shopping Center Plaza shopping
centers are subject, if such reduction would, of itself, cause a realization
or recognition of income to Meshon or ▇▇▇▇ ▇▇▇▇▇ (in each case, to the extent
a party hereto); provided that the consent of any individual described in
this Section 7.1A(3) shall not be required after such individual's death;
(4) 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 Company or
its Affiliates, the Partnership, or any of the Partnership's Subsidiaries,
the lending of funds to other Persons (including, without limitation, the
Subsidiaries of the Partnership and/or the Company or its Affiliates), and
the repayment of obligations of the Partnership and its Subsidiaries and any
other Person in which it has an equity investment, and the making of capital
contributions to its Subsidiaries;
(5) the management, operation, expansion, development,
construction, leasing, landscaping, repair, alteration, demolition, or
improvement of any real property or improvements owned by the Partnership or
any Subsidiary of the Partnership;
(6) the negotiation, execution, and performance of any
contracts, conveyances, or other instruments that the General Partner
considers necessary, advisable, desirable, incidental, or convenient to the
conduct of the Partnership's operations or the implementation of the General
Partner's powers under this Agreement, including contracting with
contractors, developers, consultants, accountants, legal counsel, other
professional advisors, and other agents and the payment of their expenses and
compensation out of the Partnership's assets;
(7) the distribution of Partnership cash or other Partnership
assets in accordance with this Agreement;
(8) the holding, managing, investing, and reinvesting cash
and other assets of the Partnership;
(9) the collection and receipt of revenues and income of the
Partnership;
(10) the establishment of one or more divisions of the
Partnership, the selection and dismissal of employees of the Partnership
(including, without limitation, employees who may be designated as officers
having titles such as "president," "vice president," "secretary" and
"treasurer" of the Partnership), and agents, outside attorneys, accountants,
consultants and contractors of the Partnership, and the determination of
their compensation and other terms of employment or engagement;
(11) the maintenance of such insurance for the benefit of the
Partnership and the Partners as it deems necessary or appropriate;
(12) the formation of, or acquisition of an interest in, and
the contribution of property to, any further limited or general partnerships,
limited liability companies, joint ventures, or other relationships that it
deems desirable (including, without limitation, the acquisition or disposal
of interests in, and the contributions of property to, its Subsidiaries and
any other Person in which it has an equity investment from time to time);
(13) the control of any matters affecting the rights and
obligations of the Partnership, including the settlement, compromise,
submission to arbitration or any other form of dispute resolution, or
abandonment of any claim, cause of action, liability, debt or damages, due or
owing to or from the Partnership, the commencement or defense of suits, legal
proceedings, administrative proceedings, arbitration, or other forms of
dispute resolution, and the representation of the Partnership in all suits or
legal proceedings, administrative proceedings, arbitrations, or other forms
of dispute resolution, the incurring of legal expenses, and the
indemnification of any Person against liabilities and contingencies to the
extent permitted by law;
(14) the undertaking of any action in connection with the
Partnership's direct or indirect investment in its Subsidiaries or any other
Person (including, without limitation, the contribution or loan of funds by
the Partnership to such Persons);
(15) the determination of the fair market value of any
Partnership property distributed in kind using such method of valuation as
the General Partner may adopt;
(16) 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 or
otherwise;
(17) the exercise, directly or indirectly, through any
attorney-in-fact acting under a general or limited power of attorney, of any
right, including the right to vote, appurtenant to any asset or investment
held by the Partnership;
(18) the exercise of any of the powers of the General Partner
enumerated in this Agreement on behalf of or in connection with any
Subsidiary of the Partnership or any other Person in which the Partnership
has a direct or indirect interest, or jointly with any such Subsidiary or
other Person;
(19) the exercise of any of the powers of the General Partner
enumerated in this Agreement on behalf of any Person in which the Partnership
does not have an interest pursuant to contractual or other arrangements with
such Person;
(20) the issuance of additional OP Units, in the General
Partner's absolute discretion, in connection with Capital Contributions by
Additional Limited Partners and additional Capital Contributions by Partners
pursuant to Article 4;
(21) the opening of bank accounts on behalf of, and in the
name of, the Partnership and its Subsidiaries;
(22) the commencing of a case under title 11 of the United
States Code, as the same may be amended from time to time, the making of an
assignment for the benefit of creditors and the dissolution of the
Partnership pursuant to the laws of the State of Delaware, as the same may be
amended from time to time, the consenting to or the acquiescing in the filing
of any of the foregoing by any Person other than the General Partner or to
take any action in furtherance of any of the foregoing;
(23) the transfer of any property of the Partnership in
complete or partial satisfaction of a creditor's claims including, without
limitation, the holder of a mortgage or other lien on property of the
Partnership, by executing and delivering a deed in lieu of foreclosure, ▇▇▇▇
of sale or otherwise;
(24) the confessing of a judgment;
(25) not contesting any foreclosure action commenced with
respect to the property of the Partnership or any other action claiming a
default under any mortgage or other lien on property of the Partnership;
(26) the making, execution, and delivery of any and all deeds,
leases, notes, mortgages, deeds of trust, security agreements, conveyances,
contracts, guarantees, warranties, indemnities, waivers, releases, or legal
instruments or agreements in writing necessary, advisable, desirable,
incidental, or convenient in the judgment of the General Partner, for the
accomplishment of any of the foregoing; and
(27) the execution, delivery and performance of the
Contribution Agreement and any other documents necessary, advisable or
incidental in the judgment of the General Partner, for the accomplishment of
the transactions contemplated thereby.
B. Each of the Limited Partners agrees that the General Partner
is authorized to perform the above-mentioned acts, and to execute, deliver
and perform any agreements, and transactions on behalf of the Partnership
without any further act, approval, or vote of the Partners, notwithstanding
any other provision of this Agreement to the fullest extent permitted under
the Act or other 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 establish and maintain at any and all
times working capital accounts and other cash or similar balances in such
amount as the General Partner, in its sole and absolute discretion, deems
appropriate and reasonable from time to time.
D. In exercising its authority under this Agreement, the General
Partner may, but (except as provided in Sections 3.2, 7.1A(3), and 10.2)
shall be under no obligation to, take into account the tax consequences to
any Partner of any action taken by it. The General Partner and the
Partnership shall not have liability to a Limited Partner under any
circumstances as a result of an income tax liability incurred by such Limited
Partner as a result of an action (or inaction) by the General Partner taken
pursuant to its authority under and in accordance with this Agreement.
7.2 Certificate of Limited Partnership. The General Partner shall use
all reasonable efforts to cause to be filed such other certificates or
documents as may be reasonable and necessary or appropriate for the
formation, continuation, qualification, and operation of a limited
partnership (or a partnership in which the limited partners have limited
liability) in the State of Delaware and any other state, or the District of
Columbia, in which the Partnership may elect to do business or own property.
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 of 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, or the District of Columbia, in which the
Partnership may elect to do business or own property. Subject to the terms
of Section 8.5A(3), 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.
7.3 Reimbursement of the General Partner.
A. Except as provided in this Section 7.3 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. On such monthly or other basis as the General Partner may
determine in its sole and absolute discretion, the Partnership shall pay for
the account of the General Partner or reimburse the General Partner for the
following "Reimbursable Amounts": all expenses that it (or any of its
Affiliates) incurs relating to the ownership and operation of, or for the
benefit of, the Partnership; all of its (and its Affiliates') payroll and
fringe benefit expense, professional fees (including, without limitation,
legal, audit, advisory, directors', and management, executive service, and
similar fees), corporate insurance expense (including, without limitation,
directors' and officers' insurance), public company expenses, office
expenses, Delaware franchise taxes (regardless of whether or not included in
the Company's liability for deferred income taxes on the date hereof, but not
including any taxes attributable, under the rules of Treasury Regulation
section 1.704-1(b)(2)(iv)(n), to periods ending on or before the date
hereof), Pennsylvania capital stock, loans, and corporate net income taxes
(regardless of whether or not included in the Company's liability for
deferred income taxes on the date hereof, but not including any taxes
attributable, under the rules of Treasury Regulation section
1.704-1(b)(2)(iv)(n), to periods ending on or before the date hereof), and
other expenses of a similar nature. To the extent of Reimbursable Amounts
not otherwise treated as expenses of the Partnership, gross income of the
Partnership for the year of reimbursement or payment for a Partner's account
shall be allocated to the Partner receiving such reimbursement and such
reimbursement or payment for a Partner's account shall constitute a
distribution from the Partnership to such Partner. To the extent of
Reimbursable Amounts that are otherwise treated as expenses of the
Partnership, payment of such amounts by the Partner receiving reimbursement
shall be treated as a loan by such Partner to the Partnership and such
reimbursement shall be treated as repayment of such loan. Any reimbursement
or payment for a Partner's account pursuant to this Section 7.3B shall be in
addition to any reimbursement made as a result of indemnification pursuant to
Section 7.6.
7.4 Outside Activities of the General Partner. The General Partner or
any of its Subsidiaries, other than the Partnership and any Subsidiaries of
the Partnership, may not, directly or indirectly enter into or conduct any
business not connected with the ownership, acquisition, development, and
disposition of Partnership Interests and (subject to Sections 4.1B and 7.3B
of the limited partnership agreement of CV Partnership) the Florida Land and
the management of the business of the Partnership and the management of
(subject to Sections 4.1B and 7.3B of the limited partnership agreement of CV
Partnership) the Florida land, and such activities as are incidental thereto,
except that the General Partner may acquire and contribute properties to the
Partnership for additional OP Units as provided in Section 4.2C. The General
Partner directly or indirectly may acquire Limited Partner Interests and
shall be entitled to exercise all rights of a Limited Partner relating to
such Limited Partner Interests.
7.5 Contracts with Affiliates.
A. The Partnership may lend or contribute funds or other assets
to its Subsidiaries or other Persons in which it has an equity investment and
such Subsidiaries and Persons may borrow funds from the Partnership, on terms
and conditions established in the sole and absolute discretion of the General
Partner. The foregoing authority shall not create any right or benefit in
favor of any Subsidiary or any other Person.
B. Except as provided in Section 7.4, 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 as the General Partner, in its sole and absolute discretion,
believes are advisable and in the best interests of the Partnership.
C. Except as expressly permitted by this Agreement, neither the
General Partner nor any of its Affiliates (or any officers or directors of
either) shall sell, Transfer, or convey any property to, or purchase any
property from, the Partnership, directly or indirectly, except pursuant to
transactions that are determined by the General Partner in good faith to be
fair and reasonable.
D. 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, stock option plans, and
similar 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
Subsidiaries of the Partnership.
7.6 Indemnification.
A. To the fullest extent permitted by Delaware law, the
Partnership shall indemnify each Indemnitee from and against any and all
losses, claims, damages, liabilities, joint, several, or joint and several,
expenses (including, without limitation, reasonable attorneys' fees and other
legal fees and expenses), judgments, fines, settlements, and other amounts
arising from any and all claims, demands, actions, suits, or proceedings,
civil, criminal, administrative, or investigative, that relate to the
operations of the Partnership or its Affiliates as set forth in this
Agreement, in which such Indemnitee may be involved, or is threatened to be
involved, as a party or otherwise, except to the extent it is finally
determined by a court of competent jurisdiction, from which no further appeal
may be taken, that such Indemnitee's action constituted intentional acts or
omissions constituting gross negligence, willful misconduct, or fraud.
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 7.6 in favor of any Indemnitee having or potentially having liability
for any such indebtedness. Any indemnification pursuant to this Section 7.6
shall be made only out of the assets of the Partnership, and neither the
General Partner nor any Limited Partner shall have any obligation to
contribute to the capital of the Partnership, or otherwise provide funds, to
enable the Partnership to fund its obligations under this Section 7.6.
B. Reasonable expenses (including reasonable legal fees) incurred
by an Indemnitee who is a party to a proceeding shall be paid or reimbursed
by the Partnership in advance of the final disposition of the proceeding.
C. The indemnification provided by this Section 7.6 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 unless otherwise provided in a written
agreement to which such Indemnitee is a party.
D. The Partnership may, but shall not be obligated to, purchase
and maintain insurance (including so-called "D&O insurance"), on behalf of
the Indemnitees and such other Persons as the General Partner shall
determine, against any liability that may be asserted against or expenses
that may be incurred by such Person in connection with the Partnership's
activities, regardless of whether the Partnership would have the power or
obligation to indemnify such Person against such liability under the
provisions of this Agreement.
E. For purposes of this Section 7.6, the Partnership shall be
deemed to have requested an Indemnitee to serve as fiduciary of an employee
benefit plan whenever the performance by such Indemnitee of its duties to the
Partnership also imposes duties on, or otherwise involves services by, such
Indemnitee 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 this
Section 7.6; 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 participant 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 any of the 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 7.6 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 7.6 are for the benefit of the
Indemnitees and their heirs, successors, assigns, and administrators and
shall not be deemed to create any rights for the benefit of any other
Persons. Any amendment, modification, or repeal of this Section 7.6 or any
provision hereof shall be prospective only and shall not in any way affect
the Partnership's liability to any Indemnitee under this Section 7.6, 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.
I. If and to the extent any payments to the General Partner
pursuant to this Section 7.6 constitute gross income to the General Partner
(as opposed to the repayment of advances made on behalf of the Partnership),
such amounts shall constitute 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.
7.7 Liability of the General Partner.
A. Notwithstanding anything to the contrary set forth in this
Agreement, neither the General Partner nor any of its officers or directors
shall be liable for monetary damages to the Partnership, any Partners, or any
Assignees for losses sustained or liabilities incurred as a result of errors
in judgment or of any act or omission if the General Partner acted in good
faith and without gross negligence or malfeasance.
B. The Limited Partners expressly acknowledge that the General
Partner is acting on behalf of the Partnership and the partners of the
Partnership, collectively, that the General Partner, subject to the
provisions of Section 7.1D, is under no obligation to consider the separate
interest of the Limited Partners (including, without limitation, the tax
consequences to Limited Partners or Assignees) in deciding whether to cause
the Partnership to take (or decline to take) any actions (except that the
General Partner shall comply with Sections 3.2, 7.1A(3) and 10.2), and that
the General Partner shall not be liable for monetary damages for losses
sustained, liabilities incurred, or benefits not derived by Limited Partners
in connection with such decisions, provided that the General Partner has
acted in good faith and without gross negligence or malfeasance. With
respect to any indebtedness of the Partnership which any Limited Partner may
have guaranteed, the General Partner shall have no duty to keep such
indebtedness outstanding.
C. Subject to its obligations and duties as General Partner set
forth in Section 7.1A, 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 the General Partner in good faith.
D. Any amendment, modification, or repeal of this Section 7.7 or
any provision hereof shall be prospective only and shall not in any way
affect the limitations on the General Partner's and its officers' and
directors' liability to the Partnership and the Limited Partners under this
Section 7.7 as in effect immediately prior to such amendment, modification,
or repeal with respect to claims arising from or relating to matters
occurring, in whole or in part, prior to such amendment, modification, or
repeal, regardless of when such claims may arise or be asserted.
E. To the fullest extent permitted by law, no officer, director,
trustee or shareholder of the General Partner shall be liable to the
Partnership for money damages except for (i) active and deliberate dishonesty
established by a non-appealable final judgment or (ii) actual receipt of an
improper benefit or profit in money, property or services.
7.8 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 in good faith 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,
architects, engineers, environmental consultants, and other consultants and
advisers selected by it, and any act taken or omitted to be taken in reliance
upon the opinion or advice 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 or advice.
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 duly appointed 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 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 Company
to continue to qualify as a REIT to which the provisions of part II of
subchapter M of chapter 1 of the Code apply (and as a "corporation subject to
a tax imposed by subchapter M," within the meaning of section 11(c) of the
Code); or (ii) to avoid the Company's incurring any taxes or other liability
under the Code, including specifically, but without limitation, under
sections 30, 42, 45A, 49, 50, 55, 453, 453A, 531, 541, 857, 1294, or 4981 of
the Code, is expressly authorized under this Agreement and is deemed approved
by all of the Limited Partners.
7.9 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 Partner, 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 asset 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 or such nominee or Affiliate for the use and benefit of
the Partnership in accordance with the provisions of this Agreement;
provided, that the General Partner shall use reasonable efforts to cause
beneficial and record title to such assets to be vested in the Partnership as
soon as reasonably practicable. All Partnership assets shall be recorded as
the property of the Partnership in its books and records, irrespective of the
name in which legal title to such Partnership assets is held.
7.10 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,
without consent or approval of any other Partner or Person, 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 take any
and all actions on behalf of the Partnership, and such Person shall be
entitled to deal with the General Partner as if the General Partner 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
8.1 Limitation of Liability. The Limited Partners shall have no
liability under this Agreement except as expressly provided in this
Agreement, including Section 10.4, or under the Act.
8.2 Management of Business. No Limited Partner or Assignee (other than
the General Partner, any of its Affiliates or any officer, director,
employee, agent, or trustee of the General Partner, the Partnership, or any
of their Affiliates, in their capacity as such) shall take part in the
operation, 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, 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.
8.3 Outside Activities of Limited Partners. Subject to any agreements
entered into pursuant to Section 7.5 hereof and any other agreements entered
into by a Limited Partner or its Affiliates with the Partnership or any of
its Subsidiaries, any Limited Partner (other than the Company) and any
officer, director, employee, agent, trustee, Affiliate, or shareholder of any
Limited Partner (other than the Company) 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 that
are in direct competition with the Partnership or that are enhanced by the
activities of 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. 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
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.
8.4 Return of Capital. Except pursuant to Section 8.6, no Limited
Partner shall be entitled to the withdrawal or return of its Capital
Contribution, except to the extent of distributions made pursuant to this
Agreement or upon dissolution of the Partnership as provided herein. Except
to the extent provided by Exhibit B (or Sections 4.1 or 7.3B) or as otherwise
expressly provided in this Agreement or any OP Unit Designation, no Limited
Partner or Assignee shall have priority over any other Limited Partner or
Assignee, either as to the return of Capital Contributions or as to profits,
losses, or distributions.
8.5 Rights of Limited Partners Relating to the Partnership.
A. In addition to the other rights provided by this Agreement or
by the Act, and except as limited by Section 8.5B 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 reasonable expense (including such copying and
administrative charges as the General Partner may establish from time to
time):
(1) to obtain a copy of the Partnership's Federal, state, and
local income tax returns for each Partnership Year;
(2) to obtain a current list of the name and last known
mailing address of each Partner;
(3) to obtain a copy of this Agreement and the Certificate
and all amendments and/or restatements thereto, together with executed copies
of all powers of attorney pursuant to which this Agreement, the Certificate
and all amendments and/or restatements thereto have been executed; and
(4) 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 General Partner shall provide to each Limited Partner,
without cost, copies of the Company's annual and quarterly reports filed with
the Securities and Exchange Commission pursuant to the Securities Exchange
Act of 1934.
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
reasonably 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 could damage the
Partnership or its business; or (ii) the Partnership is required by law or by
agreements with an unaffiliated third party to keep confidential. To the
extent permitted by law, the General Partner shall keep confidential from the
Limited Partners any information that the General Partner determines, in its
sole and absolute discretion, to be in the nature of trade secrets or other
confidential information of the General Partner (or any of its Affiliates) or
to constitute material non-public information of or relating to the General
Partner (or any of its Affiliates) the disclosure of which is not in the best
interests of the General Partner (or any of its Affiliates) or its (or their)
business or could involve a violation of law.
8.6 Redemption Rights.
A. General.
(i) Subject to Section 8.6C, below, on or after the date
one year (or such other period as may be agreed between the General Partner
and the holder of an OP Common Unit hereafter acquired pursuant to Section
4.2 or 4.3 or, in the case of an OP Common Unit acquired pursuant to the
Contribution Agreement by a Limited Partner who so elects in the Contribution
Agreement, immediately) after the issuance of an OP Common Unit to a Limited
Partner pursuant to Article 4 (or upon the earlier death of such Limited
Partner), the holder of such OP Common Unit (if other than the General
Partner or any Subsidiary of the General Partner) shall have the right (the
"Redemption Right") to require the Partnership to redeem such OP Common Unit
on a Specified Redemption Date and at a redemption price equal to and in the
form of the Cash Amount to be paid by the Partnership. Any such Redemption
Right shall be exercised pursuant to a Notice of Redemption (in the form of
Exhibit C hereto, as such form may be amended by the General Partner, in its
reasonable discretion, from time to time, upon no less than 30 days' notice
to the Limited Partners) delivered to the Partnership (with a copy
simultaneously to the General Partner) by the Limited Partner who is
exercising the Redemption Right (the "Redeeming Partner"). A Limited Partner
may not exercise the Redemption Right for fewer than 1,000 OP Common Units
or, if such Redeeming Partner holds fewer than 1,000 OP Common Units, for
fewer than all of the OP Common Units held by such Redeeming Partner. In the
sole discretion of the General Partner at the request of any Limited Partner,
the General Partner may substitute "six months" (or some period of time
greater than six months, but less than one year) for "one year" in applying
the first sentence of this Section 8.6A(i) to such Limited Partner and, in
connection with the exercise of such discretion, the General Partner may
require that the Redeeming Partner provide a letter to the Partnership and
the General Partner in substantially the form of Exhibit E hereto.
(ii) The Redeeming Partner shall have no right with
respect to any OP Common Units so redeemed to receive any distributions paid
after the Specified Redemption Date.
(iii) The Assignee of any Limited Partner may exercise
the rights of such Limited Partner pursuant to this Section 8.6 and such
Limited Partner shall be deemed to have assigned such rights to such Assignee
and shall be bound by the exercise of such rights by such Limited Partner's
Assignee. In connection with any exercise of such rights by such Assignee on
behalf of such Limited Partner, the Cash Amount shall be paid by the
Partnership directly to such Assignee and not to such Limited Partner.
B. General Partner Assumption of Right.
(i) If a Limited Partner has delivered a Notice of
Redemption, the General Partner may, within 5 business days after receipt of
such Notice, in its sole discretion (subject to any limitations on ownership
and transfer of Shares set forth in the Company's Certificate of
Incorporation), elect to assume directly and satisfy a Redemption Right by
paying to the Redeeming Partner either the Cash Amount or, but only if the
Company has in effect (or, at the request of the Redeeming Partner, consents
and within 60 days after such election causes to be in effect) a registration
statement (the "Registration Statement") covering the immediate resale of all
the Shares to be issued to the Redeeming Partner pursuant to such election
(or, under then-applicable law, the Shares upon issuance would be freely
tradeable without such a registration statement's being in effect), the
Shares Amount, as the General Partner determines in its sole discretion on
the Specified Redemption Date, whereupon the General Partner shall acquire
the OP Common Units offered for redemption by the Redeeming Partner and shall
be treated for all purposes of this Agreement as the owner of such OP Common
Units. If it shall be necessary under the preceding sentence for a
Registration Statement to be caused to be in effect, the General Partner will
use commercially reasonable efforts to cause such Registration Statement to
be filed and to become effective as soon as reasonably practicable and within
the 60-day period theretofore described. Unless the General Partner, in its
sole discretion, shall exercise its right to assume directly and satisfy the
Redemption Right, the General Partner shall not have any obligation to the
Redeeming Partner or to the Partnership with respect to the Redeeming
Partner's exercise of the Redemption Right. In the event the General Partner
shall exercise its right to satisfy the Redemption Right in the manner
described in the first sentence of this Section 8.6B and shall fully perform
its obligations in connection therewith, the Partnership shall have no right
or obligation to pay any amount to the Redeeming Partner with respect to such
Redeeming Partner's exercise of the Redemption Right, and each of the
Redeeming Partner, the Partnership, and the General Partner shall, for
Federal income tax purposes, treat the transaction between the General
Partner and the Redeeming Partner as a sale of the Redeeming Partner's OP
Common Units to the General Partner. Nothing contained in this Section 8.6B
shall imply any right of the General Partner to require any Limited Partner
to exercise the Redemption Right afforded to such Limited Partner pursuant to
Section 8.6A.
(ii) In the event that the General Partner determines to
pay the Redeeming Partner the Redemption Amount in the form of Shares, the
total number of Shares to be paid to the Redeeming Partner in exchange for
the Redeeming Partner's OP Common Units shall be the applicable Shares
Amount. In the event this amount is not a whole number of Shares, the
Redeeming Partner shall be paid (i) that number of Shares which equals the
nearest whole number less than such amount plus (ii) an amount of cash which
the General Partner determines, in its reasonable discretion, to represent
the fair value of the remaining fractional Share which would otherwise be
payable to the Redeeming Partner.
(iii) Each Redeeming Partner agrees to provide in a
timely fashion such information and to execute such documents as the General
Partner and its Affiliates may reasonably require in connection with the
issuance of Shares upon exercise of the Redemption Right and the registration
of the resale of such Shares, including, without limitation, an agreement
pursuant to which the Redeeming Partner agrees to indemnify and to hold
harmless the General Partner, the Partnership, the Company, the Affiliates of
any of them, and the respective officers, directors, general partners, and
agents of the General Partner, the Partnership, the Company, and such
Affiliates with respect to any information provided by the Redeeming Partner
for inclusion in the Registration Statement and the General Partner agrees to
indemnify and to hold harmless the Redeeming Partner with respect to
information provided by the Company in the Registration Statement.
(iv) So long as the Redeeming Partner confirms in
writing that the Redeeming Partner continues to intend in good faith to sell
all of its Shares received under this Section 8.6 under such Registration
Statement, the Company shall use its best efforts to keep the Registration
Statement effective for up to one year after the effective date thereof, but
only if the Redeeming Partner agrees not to make any offers or sales of any
Shares under any such Registration Statement if the Redeeming Partner has
received a notice from the General Partner to the effect that, for a stated
period (not in excess of 60 days), it would not for any reason (including,
without limitation, by reason of the General Partner's or any of its
Affiliate's having a good business reason not to disclose publicly certain
information which may be material) be in the best interests of the General
Partner or any of its Affiliates for offers or sales to be effected under
such Registration Statement. The General Partner shall not give any
Redeeming Partner such a notice more than twice in any 12-month period.
(v) If a Limited Partner is considering exercising
its Redemption Right with respect to its OP Common Units and desires that the
Shares it receives from the General Partner in exchange for the redeemed OP
Common Units, if any, be the subject to an effective Registration Statement
at the time of receipt, it may, at its sole option, follow the procedure set
forth in this clause (v). The Limited Partner shall give the General Partner
written notice referring to this clause and stating that it is considering
exercising its Redemption Right (a "Pre-Redemption Notice"). Upon receipt of
the Pre-Redemption Notice, if the General Partner determines that it wishes
to elect to assume the redemption obligation from the Partnership and wishes
to give the Redeeming Partner Shares and the Company consents to such
election, the Company shall file a Registration Statement with respect to the
resale of all such Shares as soon as practicable and use its commercially
reasonable efforts to cause such Registration Statement to become effective
as soon as possible and within not more than 60 days. The General Partner
shall notify the Limited Partner as soon as the Registration Statement has
become effective. The other provisions of this Section 8.6 shall apply with
respect to such Registration Statement and with respect to any Redemption
Notice given by such Limited Partner. Neither the giving of the Pre-
Redemption Notice nor the filing of the Registration Statement (nor its
becoming effective) shall obligate the Limited Partner to give a Notice of
Redemption nor, if a Notice of Redemption is subsequently given, obligate the
General Partner to assume the redemption obligation and/or elect to give the
Redeeming Partner Shares in exchange for its OP Common Units. If the Limited
Partner which gave the Pre-Redemption Notice does not give the Partnership a
Redemption Notice with respect to its OP Common Units within 180 days after
the effective date of such Registration Statement, neither the Partnership,
the Company, nor the General Partner shall have any obligation to continue to
maintain the effectiveness of such Registration Statement and the Limited
Partner which gave the Pre-Redemption Notice shall be liable for the costs of
the Partnership, the Company and the General Partner in filing the
Registration Statement (including without limitation, legal fees and
disbursements and any filing fees). No Limited Partner may give more than
one Pre-Redemption Notice (unless the General Partner shall otherwise
consent).
C. Exceptions to Exercise of Redemption Right. Notwithstanding
the provisions of Sections 8.6A and 8.6B, a Partner shall not be entitled to
exercise the Redemption Right pursuant to Section 8.6A if (but only as long
as), in the written opinion of counsel to the General Partner, the delivery
of Shares to such Partner on the Specified Redemption Date (i) would be
prohibited under the Certificate of Incorporation, (ii) would cause a
violation of the REIT Requirements, or (iii) would be prohibited (after
giving effect to any applicable exemptions) under applicable Federal or state
securities laws or regulations (in each case regardless of whether the
General Partner would in fact assume and satisfy the Redemption Right).
D. No Liens on OP Common Units Delivered for Redemption. Each
Limited Partner covenants and agrees with the Partnership and the General
Partner that the Redeeming Partner shall transfer good title to all OP Common
Units delivered for redemption to the Partnership or the General Partner, as
the case may be, free and clear of all Liens (as defined in Exhibit C), and,
notwithstanding anything contained herein to the contrary, neither the
General Partner nor the Partnership shall be under any obligation to acquire
OP Common Units which are or may be subject to any Liens. Each Limited
Partner further agrees that, in the event any state or local property
transfer tax is imposed on the Limited Partner (or jointly on the Limited
Partner and the transferee) as a result of the transfer of its OP Common
Units to the Partnership or the General Partner, such Limited Partner shall
assume and pay such transfer tax.
E. Additional Partnership Interests. In the event that the
Partnership issues OP Common Units to any Additional Limited Partner pursuant
to Article 4, the General Partner shall make such amendments to this Section
8.6 as it determines are necessary to reflect the issuance of such OP Common
Units (including setting forth any restrictions on the exercise of the
Redemption Right with respect to OP Common Units described in this Section
8.6E).
F. Successor to the Company. If the Company shall cease to serve
as General Partner, all of the Company's rights under this Section 8.6 shall
vest in the Company's successor as General Partner, if such successor is an
Affiliate of the Company (or would have been an Affiliate of the Company had
the Company continued to exist), and otherwise in such Affiliate of the
Company (or such Person that would have been an Affiliate of the Company, had
the Company continued to exist) as the Company may designate (or, if the
Company has not made any such designation, as any Person with authority to
act on behalf of the Company in connection with the winding up of its affairs
or otherwise may designate).
ARTICLE 9
Books, Records, Accounting, and Reports
9.1 Records and Accounting. The General Partner shall keep or cause to
be kept at the principal office of the Partnership those records and
documents required to be maintained by the Act and other books and records
deemed by the General Partner to be appropriate with respect to the
Partnership's business, including, without limitation, all books and records
necessary to comply with applicable REIT Requirements and to provide to the
Limited Partners any information, lists, and copies of documents required to
be provided pursuant to Sections 8.5A and 9.3. 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 any information storage device or system,
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 reporting purposes, on an
accrual basis in accordance with GAAP, and, for tax purposes, on an accrual
basis, or such other bases as the General Partner determines to be necessary
or appropriate.
9.2 Fiscal Year. The fiscal year of the Partnership shall be the
calendar year.
9.3 Reports.
A. As soon as practicable, but in no event later than 105 days
after the close of each Partnership Year, 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
Company if such statements are prepared solely on a consolidated basis with
the Company, for such Partnership Year, presented in accordance with GAAP,
such statements to be audited by a nationally recognized firm of independent
public accountant selected by the General Partner in its sole discretion.
B. As soon as practicable, but in no event later than 45 days
after the close of each calendar quarter (except the last calendar quarter of
each calendar year), the General Partner shall cause to be mailed to each
Limited Partner a report containing unaudited financial statements as of the
last day of the calendar quarter of the Partnership, or of the Company, if
such statements are prepared solely on a consolidated basis with the Company,
and such other information as may be required by applicable law or
regulation, or as the General Partner determines to be appropriate.
ARTICLE 10
Tax Matters
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 reasonable efforts to
furnish, within one hundred sixty-five (165) days of the close of each
taxable year, the tax information reasonably required by Limited Partners for
Federal and state income tax reporting purposes. At the time of any sale or
refinancing of any property listed on Exhibit D, the General Partner shall
give notice thereof to each individual listed with respect to such property
on Exhibit D.
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. Except as provided in Section
7.8D, the General Partner shall (i) select (and cause ▇▇▇▇▇▇▇▇▇▇ ▇▇ Realty
L.P. to select) the "traditional method" of making allocations pursuant to
Regulation section 1.704-3 (either without any curative allocations or with
curative allocations to a contributing Partner solely of gain from sale of
the property contributed) with respect to all Contributed Property received
on or before the date of this Agreement, and (ii) select any method allowed
pursuant to Regulations section 1.704-3 with respect to all Contributed
Property received after the date of this Agreement. By executing this
Agreement, each Partner hereby agrees to report income, gain, loss, and
deduction on such Partner's Federal income tax return in a manner that is
consistent with the use of the method so selected. The General Partner shall
have the right to seek to revoke any tax election it makes, including,
without limitation, the election under section 754 of the Code, upon the
General Partner's determination, in its sole and absolute discretion, that it
could have caused the Partnership to refrain from making such election in the
first instance.
10.3 Tax Matters Partner.
A. The Company shall serve as the "tax matters partner" of the
Partnership for Federal income tax purposes for any taxable year of the
Partnership for which it is eligible to serve as such (regardless of whether
the Company is at the time of serving as such the General Partner). The
General Partner from time to time shall serve as the tax matters partner for
any other taxable year of the Partnership (regardless of whether the General
Partner was a partner in the Partnership at any time during such year). All
Partners and Assignees shall, at the request of a tax matters partner
described in the preceding sentence, take such actions as are necessary,
appropriate, or convenient to effect the designation of such tax matters
partner pursuant to section 301.6231(a)(7)-1 of the Regulations. Pursuant to
Section 6230(e) of the Code, upon receipt of notice from the Internal Revenue
Service of the beginning of an administrative proceeding with respect to the
Partnership, the tax matters partner shall furnish the Internal Revenue
Service with the name, address, taxpayer identification number, and profit
interest of each of the Limited Partners and the Assignees; provided, that
such information is provided to the tax matters partner by the Limited
Partners and the Assignees.
B. The tax matters partner is authorized, but not required:
(1) to enter into any settlement with the Internal Revenue
Service 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 Internal Revenue Service 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 partner" (as defined in
section 6231(a)(8) 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, the
United States Claims Court or 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 Internal Revenue Service and, if any part of such request is not allowed
by the Internal Revenue Service, to file an appropriate pleading (petition or
complaint) for judicial review with respect to such request;
(5) to enter into an agreement with the Internal Revenue
Service to extend the period for assessing any tax which is attributable to
any item required to be taken account of 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 or 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 7.6 shall also be fully applicable to the tax matters
partner in its capacity as such. Notwithstanding the foregoing provisions of
this Section 10.3B, no tax matters partner described in the second sentence
of Section 10.3A may, without the prior written consent of the Company (which
may be withheld in the Company's sole discretion), bind the Company, any of
its Affiliates, or any qualified REIT subsidiary, partnership, limited
liability company, or other Entity through which the Company or any of its
Affiliates was a partner in the Partnership to any settlement agreement under
section 6224 of the Code, file a petition for readjustment of partnership
items in any court other than the Tax Court, or extend the period for
assessing tax under section 6229 of the Code with respect to the Company, any
of its Affiliates, or any qualified REIT subsidiary, partnership, limited
liability company, or other Entity through which the Company or any of its
Affiliates was a partner in the Partnership. The tax matters partner shall
comply with the responsibilities imposed on it by section 301.6223(g)-1T of
the Regulations.
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 its duties as such (including legal and accounting fees
and expenses) shall be borne by the Partnership. Nothing herein shall be
construed to restrict the Partnership from engaging one or more law or
accounting firms to assist the tax matters partner in discharging its duties
hereunder, so long as the compensation paid by the Partnership for such
services is reasonable.
10.4 Withholding. Each Limited Partner hereby authorizes the
Partnership to withhold from, or pay on behalf of or with respect to, such
Limited Partner any amount of Federal, state, local, or foreign taxes that
the General Partner determines that the Partnership is required by law 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 so 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 fifteen (15) days after notice from the General
Partner that such payment must be made unless (i) the Partnership withholds
such payment from a distribution 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 10.4.
In the event that a Limited Partner fails to pay when due any amounts owed to
the Partnership pursuant to this Section 10.4, 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. Without limitation, in such event, the
General Partner shall have the right to receive distributions that would
otherwise be distributable to such defaulting Limited Partner until such time
as such loan, together with all interest thereon, has been paid in full, and
any such distributions so received by the General Partner shall be treated as
having been distributed to the defaulting Limited Partner and immediately
paid by the defaulting Limited Partner to the General Partner in repayment of
such loan. Any amount payable by a Limited Partner hereunder shall bear
interest at the highest base or prime rate of interest published from time to
time by any of Citibank, N.A., Chase Manhattan Bank, and ▇▇▇▇▇▇ Guaranty
Trust Company of New York, plus four (4) percentage points, but in no event
higher than the maximum lawful rate of interest on such obligation, such
interest to accrue from the date such amount is due (i.e., fifteen (15) days
after demand) until such amount is paid in full. Each Limited Partner shall
take such actions as the Partnership or the General Partner shall request in
order to perfect or enforce the security interest created hereunder.
ARTICLE 11
Transfers and Withdrawals
11.1 Transfer.
A. The term "Transfer," when used in this Article 11 with respect
to an OP Unit, shall be deemed to refer to a transaction by which the General
Partner purports to assign or pledge all or any part of its General Partner
Interest to another Person or by which a Limited Partner purports to assign
or pledge all or any part of its Limited Partner Interest to another Person.
The term "Transfer" when used in this Article 11 does not include any
exchange of OP Common Units for Shares pursuant to Section 8.6 or any grant
of a security interest to the Partnership pursuant to Section 10.4.
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.
11.2 Transfer of the General Partner's and
the Company's Partnership Interests.
A. The General Partner may not Transfer its General Partnership
Interest or withdraw as General Partner, but such Transfer or withdrawal
shall be permitted (1) if Limited Partners holding a Qualifying Limited
Partner Interest consent to such Transfer or withdrawal or (2) in the case of
a Transfer of all or a portion of the General Partner Interest to an entity
which is, directly or indirectly, wholly-owned by the Company (including a
qualified REIT subsidiary under section 856(i) of the Code). In the case of
any Transfer permitted by this Section 11.2A, the transferee may be admitted
as a General Partner with the consent of the transferor, but without any
requirement that any Limited Partner consent thereto, all as provided in
Section 12.1.
B. In the event the General Partner withdraws as General Partner,
except in accordance with clause (A), above, the General Partner's General
Partner Interest shall immediately be converted into a Limited Partner
Interest.
C. The Company may Transfer any of its Limited Partner Interest
without the Consent of the General Partner or any Limited Partner, but may
not transfer any OP Preferred Unit or Other OP Units except to a successor
General Partner.
D. Except in the case of a change in identity, form, or place of
organization of the Company, however, effected, the Company shall not engage
in any merger (including a triangular merger), consolidation, or other
combination with or into another person, sale of all or substantially all of
its assets, or reclassification, recapitalization, or change of outstanding
Shares (other than a change in par value, or from par value to no par value,
or as a result of a subdivision or combination as described in the definition
of "Adjustment Factor") ("Termination Transaction"), unless the Termination
Transaction has been approved by the consent of Partners holding a majority
or more of the then outstanding OP Units (including any OP Units held by the
General Partner) and in connection with the Termination Transaction all
Limited Partners either will receive or will have the right to elect to
receive, for each OP Unit, an amount of cash, securities, or other property
equal to the product of the Adjustment Factor and the greatest amount of
cash, securities, or other property paid to a holder of Shares in
consideration of one Share at any time during the period from and after the
date on which the Termination Transaction is consummated; provided that, if,
in connection with the Termination Transaction, a purchase, tender, or
exchange offer shall have been made to and accepted by the holders or more
than 50% of the outstanding Shares, each holder of OP Units shall receive or
shall have the right to elect to receive the greatest amount of cash,
securities, or other property which such holder would have received had it
exercised the Redemption Right and received Shares in exchange for its OP
Units immediately prior to the expiration of such purchase, tender, or
exchange offer and had thereupon accepted such purchase, tender, or exchange
offer. Any Termination Transaction permitted under this Section 11.2D shall
be permitted notwithstanding the provisions of Section 7.4 or any other
provision of this Article 11.
11.3 Limited Partners' Rights to Transfer.
A. Subject to the provisions of Sections 11.3C, 11.3D, 11.3E, and
11.4, a Limited Partner (other than the Company) may, without the consent of
the General Partner:
(a) Transfer such Limited Partner's OP Units to any
other Limited Partner, to a member of the family (as defined in section
267(c)(4) of the Code) of such transferring Limited Partner, or to a trust
all of the beneficiaries of which are members of the family of such
transferring Limited Partner, or pursuant to Section 8.6; and
(b) pledge such Limited Partner's OP Units to any
financial institution as collateral for any loan with respect to which such
Limited Partner is personally liable.
(1) Subject to the provisions of Sections 11.3C, 11.3D and
11.3E, a Limited Partner may Transfer any of such Limited Partner's OP Units,
otherwise than in accordance with clause (1), above, only with the prior
written consent of the General Partner.
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 of 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 the
Incapacitated Limited Partner's 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 by a Limited
Partner of its OP Units if, in the opinion of legal counsel to the
Partnership, such Transfer would require filing of a registration statement
under the Securities Act of 1933, as amended, or would otherwise violate any
Federal or state securities laws or regulations applicable to the Partnership
or the OP Units. The General Partner may require (but shall not be obligated
to accept) an opinion of legal counsel to the Limited Partner, in form and
substance acceptable to the General Partner, to the effect that such filing
would not be required and that such laws and regulations would not be
violated.
D. No Transfer by a Limited Partner of its OP Units may be made
to any Person if: (i) in the opinion of legal counsel for the Partnership, it
would result in the Partnership's being treated as an association or a
publicly traded partnership taxable as a corporation; (ii) such Transfer
would cause the Partnership to become, with respect to any employee benefit
plan subject to Title I of ERISA other than a plan maintained by the General
Partner or any Affiliate thereof, a "party-in-interest" (as defined in
section 3(14) of ERISA) or, with respect to any "plan" (as defined in section
4975(e)(1) of the Code) other than a plan maintained by the General Partner
or any Affiliate thereof, a "disqualified person" (as defined in section
4975(e)(2) of the Code); (iii) such Transfer would, in the opinion of legal
counsel for 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 2510.3-101; (iv) such Transfer would
subject the General Partner, any of its Affiliates, or the Partnership to be
regulated under the Investment Company Act of 1940, the Investment Advisors
Act of 1940, or the Employee Retirement Income Security Act of 1974, each as
amended; (v) except with the consent of the General Partner, such Transfer is
a sale or exchange, and such sale or exchange would, when aggregated with all
other sales and exchanges during the 12-month period ending on the date of
the proposed Transfer, result in 50% or more of the interests in Partnership
capital and profits being sold or exchanged; (vi) it would require the
Partnership to register under the Investment Company Act of 1940; (vii)
except with the consent of the General Partner, it would cause the
Partnership to be considered for purposes of section 1.7704-1(h)(1)(ii) of
the Regulations to have more than 100 partners at any time during any taxable
year; or (viii) in the opinion of legal counsel to the General Partner, it
could adversely affect the ability of the Company to continue to qualify as a
REIT to which the provisions of part II of subchapter M of chapter 1 of the
Code apply (and as a "corporation subject to a tax imposed by subchapter M,"
within the meaning of section 11(c) of the Code), subject the Company to
additional taxes or other liability under the Code, or violate any law or
regulation of any governmental body or agency having jurisdiction over the
General Partner, its Affiliates, the Partnership, or their respective
securities or properties.
E. Section 11.3A shall not prohibit a Limited Partner from taking
the following actions, to the extent otherwise permitted under this
Agreement: (i) exercising any options to purchase Shares issued to such
Limited Partner under a Stock Option Plan, (ii) in connection with an
exercise permitted by the preceding clause (i), delivering to the Company
Shares in payment of the exercise price of such options or the withholding
taxes payable in connection with such exercise, or (iii) transferring OP
Units or Shares to a Permitted Transferee of such Limited Partner, provided
that such transferee agrees in writing to the transfer restrictions contained
in this Agreement (including this Section 11.3E).
11.4 Substituted Limited Partners.
A. Subject in each case to Section 11.4D: (1) the General Partner
shall have the right to add or substitute a transferee which receives OP
Units pursuant to Section 11.2C as a Limited Partner and (2) each Limited
Partner shall have the right to substitute a Permitted Transferee which
receives OP Units pursuant to Section 11.3A(1) as a Limited Partner in such
Limited Partner's place.
B. The General Partner shall have the right to consent to the
admission of a transferee who receives OP Units pursuant to Section 11.3A(2),
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 such
transferee to become a Substituted Limited Partner shall not give rise to any
cause of action against the Partnership or any Partner.
C. A transferee who has been admitted as a Substituted Limited
Partner in accordance with this Article 11 shall have all the rights and
powers and be subject to all the restrictions and liabilities of a Limited
Partner under this Agreement.
D. No Permitted Transferee will be admitted as a Substituted
Limited Partner unless (i) such transferee has furnished to the General
Partner (a) 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 Section 2.4, and (b)
such other documents or instruments as may be required in the reasonable
discretion of the General Partner in order to effect such Person's admission
as a Substituted Limited Partner and (ii) in the case of a transferee who
receives OP Units in accordance with Section 11.3A(2), the General Partner
has consented to such admission in accordance with Section 11.4B. Upon the
admission of a Substituted Limited Partner, the General Partner shall reflect
the name, address, number of OP Common Units, and Percentage Interest of such
Substituted Limited Partner on the records of the Partnership and eliminate
or adjust, if necessary, the name, address, and interest of the predecessor
of such Substituted Limited Partner.
11.5 Assignees. If the General Partner, in its sole and absolute
discretion, does not consent to the admission of any transferee as a
Substituted Limited Partner, such transferee shall be considered an Assignee
for purposes of this Agreement. An Assignee shall be deemed to have had
assigned to it and shall be entitled to receive distributions from the
Partnership and the share of Net Income, Net Losses, and any other items,
gain, loss deduction, and credit of the Partnership attributable to the OP
Units assigned to such transferee and, as to the OP Units which were
transferred to such Person in a manner permitted under this Agreement, shall
have the rights and obligations set forth in Section 8.6 as though a Limited
Partner, but shall not be deemed to be a holder of OP Units for any other
purpose under this Agreement, and shall not be entitled to vote such OP Units
in any matter presented to the Limited Partners for a vote (such OP Units
being deemed, to the extent permitted by law, to have been voted on such
matter in the same proportion as all other OP Units held by Limited Partners
are voted). In the event any such transferee desires to make a further
assignment of any such OP Units, such transferee shall be subject to all of
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 OP Units.
11.6 General Provisions.
A. No Limited Partner may withdraw from the Partnership otherwise
than as a result of a permitted Transfer of all of such Limited Partner's OP
Units in accordance with this Article 11 or pursuant to an exchange of all of
its OP Units pursuant to Section 8.6.
B. Any Limited Partner who shall Transfer all of its OP Units in
a Transfer permitted pursuant to this Article 11 shall cease to be a Limited
Partner upon the admission of all Assignees of such OP Units as Substituted
Limited Partners. Similarly, any Limited Partner who shall Transfer all of
its OP Units pursuant to an exchange of all of its OP Units pursuant to
Section 8.6 shall cease to be a Limited Partner.
C. Except with the consent of the General Partner, transfers
pursuant to this Article 11 (other than Transfers pursuant to Section 8.6B)
may be made only as of the first day of each calendar month.
D. If any Partnership Interest is transferred or assigned during
the Partnership's fiscal year in compliance with the provisions of this
Article 11 or exchanged pursuant to Section 8.6 on any day other than the
first day of a Partnership Year, then Net Income, Net Losses, each item
thereof, and all other items attributable to such interest for such
Partnership Year shall be divided and allocated between the transferor
Partner and the transferee Partner by taking into account their varying
interests during the Partnership Year in accordance with section 706(d) of
the Code, using such method as the General Partner shall determine in its
sole discretion. 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 transferee Partner, and none of such items for the
calendar month in which an exchange occurs shall be allocated to the
exchanging Partner, provided, however, that the General Partner may adopt
such other conventions relating to allocations in connection with transfers,
assignments, or exchanges as it determines are necessary or appropriate. All
distributions of Available Cash attributable to such OP Units with respect to
which the Partnership Record Date is before the date of such transfer,
assignment, or exchange shall be made to the transferor Partner or the
exchanging Partner, as the case may be, and in the case of a Transfer or
assignment other than an exchange, all distributions of Available Cash
thereafter attributable to such OP Units shall be made to the transferee
Partner.
E. Ownership of an OP Unit shall be determined by the identity of
the registered holder thereof on the books of the Partnership. Transfer of
an OP Unit can be made only in conformity with all provisions of this
Agreement and upon compliance with the further requirement that such transfer
can be made only upon presentation of the certificate evidencing such OP
Unit, if any, accompanied by satisfactory and duly executed instruments of
transfer.
ARTICLE 12
Admission of Partners
12.1 Admission of Successor General Partner. A successor to all of the
General Partner Interest pursuant to Section 11 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, and such admission
shall occur, and for all purposes shall be deemed to have occurred,
immediately prior to the time the assignor ceases to be a general partner of
the Partnership. 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's 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 Section 11.6D.
12.2 Admission of Additional Limited Partners.
A. The limited partners named in the signature pages are all
admitted, or will be admitted as provided in Section 2.1 hereof, to the
Partnership as Limited Partners with the OP Common Units set forth opposite
the name of such Limited Partner on Exhibit I. After the admission to the
Partnership of the Limited Partners on the date hereof, a Person 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 Section 2.4, and (ii) such other documents or instruments as may be
required in the sole 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. 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 consent of the General Partner to such admission.
C. If any Additional Limited Partner is admitted to the
Partnership on any day other than the first day of a Partnership Year, then
Net Income, Net Losses, each item thereof, and all other items allocable
among Partners and Assignees for such Partnership Year shall be allocated
among such Additional 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 such method as the General
Partner shall determine in its sole discretion. 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, and all distributions of Available
Cash thereafter shall be made to all of the Partners and Assignees, including
such Additional Limited Partner.
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 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.
ARTICLE 13
Dissolution, Liquidation, and Termination
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. In the event of 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, only upon
the first to occur of any of the following ("Liquidating Events"):
A. the expiration of its term as provided in Section 2.5;
B. an event of withdrawal of the General Partner, as defined in
the Act (other than an event of bankruptcy listed in Sections 17-402(4) and
(5) of the Act), unless, at the time, there is at least one other General
Partner, who is hereby permitted to carry on the business of the Partnership,
and such General Partner does so (in accordance with Section 12.1 or
otherwise) or, within 90 days after such event of withdrawal 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 the date of
withdrawal, of a successor General Partner;
C. an election to dissolve the Partnership made by the General
Partner;
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 final and non-appealable judgment is entered by a court of
competent jurisdiction ruling that the General Partner is bankrupt or
insolvent, or a final and non-appealable order for relief is entered by a
court with appropriate jurisdiction against the General Partner, in each case
under any Federal or state bankruptcy or insolvency laws as now or hereafter
in effect, unless prior to the entry of such order or judgment all 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 order or judgment, of a substitute General Partner; and
G. at any time that there are no limited partners of the
Partnership, unless the business of the Partnership is continued in
accordance with the Act.
13.2 Winding Up.
A. Upon the occurrence of a Liquidating Event that results in the
dissolution of the Partnership, 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 Limited Partners holding at least a majority of the
Limited Partnership Interests (the General Partner or such other Person being
referred to herein as the "Liquidator"), shall be responsible for overseeing
the winding up and termination 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 beneficial interest or
other securities of the General Partner or an Affiliate thereof) shall be
applied and distributed in the following order:
(1) First, to the payment and discharge (or making reasonable
provision for paying) of all of the Partnership's debts and liabilities to
creditors other than the Partners;
(2) Second, to the payment and discharge of all of the
Partnership's debts and liabilities to the Partners;
(3) Third, to the General Partner to the extent required
under any OP Preferred Units or Other OP Units senior to the OP Common Units,
in accordance with the terms and priorities set forth in the respective OP
Unit Designations; and
(4) The balance, if any, to the Partners and Assignees owning
OP Common Units in proportion to their respective Percentage Interests (and
to the holders of any Other OP Units junior to OP Common Units, to the extent
of their entitlement, if any).
The General Partner shall not receive any additional compensation for any
services performed pursuant to this Article 13.
B. Notwithstanding the provisions of Section 13.2A 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 asset 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 13.2A, 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 interests 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.
C. In the sole discretion of the Liquidator, 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:
(1) 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 liabilities or obligations (including contingent) of the Partnership or
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
Liquidator, in the same priorities and proportions as 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
(2) withheld or escrowed 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 or escrowed amounts shall be distributed to the
General Partner and Limited Partners in the manner and order of priority set
forth in Section 13.2A as soon as practicable.
13.3 No Obligation to Contribute Deficit. If any Partner has a deficit
balance in such Partner's Capital Account (after giving effect to all
contributions, distributions and allocations for all 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.
13.4 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 its Capital Contributions and shall have no
right or power to demand or receive property other than cash from the
Partnership. Except as otherwise provided in this Agreement, no Limited
Partner shall have priority over any other Partner as to the return of its
Capital Contributions, distributions, or allocations.
13.5 Notice of Dissolution. In the event a Liquidating Event occurs or
an event occurs that would, but for the provisions of an election, objection,
consent, or agreement by one or more Partners pursuant to Section 13.1,
result in a dissolution of the Partnership, the General Partner shall, within
thirty (30) days thereafter, provide written notice thereof to each of the
Partners.
13.6 Termination of Partnership and Cancellation of Certificate of
Limited Partnership. Upon the completion of the liquidation of the
Partnership's assets, as provided in Section 13.2, the Partnership shall be
terminated, a certificate of cancellation shall be filed, 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.
13.7 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 in order to minimize
any losses otherwise attendant upon such winding-up, and the provisions of
this Agreement shall remain in effect among the Partners during the period of
liquidation.
13.8 Waiver of Partition. Each Partner hereby waives any right to
partition of the Partnership property.
ARTICLE 14
Amendment of Partnership Agreement;
Action by Limited Partners
14.1 Amendments.
A. Amendments to this Agreement may be proposed by the General
Partner or in writing by any Limited Partner or Limited Partners holding in
the aggregate 25% or more of the Partnership Interests. Within such
reasonable period of time as shall be determined by the General Partner
following such proposal, the General Partner shall submit any proposed
amendment to the Limited Partners. The General Partner shall seek the
written vote of the Partners on the proposed amendment or shall call a
meeting on not less than 10 days' notice to vote thereon and to transact any
other business that it may deem appropriate. For purposes of obtaining a
written vote, the General Partner may require a response within a reasonable
specified time, but not less than fifteen (15) days, and failure to respond
in such time period shall constitute a vote which is consistent with the
General Partner's recommendation with respect to the proposal. Except as
provided in Section 14.1B or 14.1C, a proposed amendment shall be adopted and
be effective as an amendment hereto if it is approved by the General Partner
and it receives the consent of Partners holding a majority or more of the
then outstanding OP Units (including OP Units held by the General Partner)
(except for amendments to this Section 14.1 or Sections 4.3, 7.4, 7.5, 8.5A,
8.6, 9.3, 11.2 and 14.2, and the final sentence of Section 10.3B which, so
long as Limited Partners other than the General Partner own more than 5% of
all Limited Partner Interests, must be approved by Partners holding a
majority of the Limited Partner Interests (other than the General Partner)).
B. Notwithstanding Section 14.1A, the General Partner shall have
the power, without the consent of the Limited Partners, which consent is
hereby deemed to have been given, to amend this Agreement (other than this
Section 14.1 or Sections 4.3, 7.4, 7.5, 11.2, and 14.2) to the extent
expressly set forth herein (including, without limitation, in Section 8.6E)
or 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;
(2) to reflect the admission, substitution, termination, or
withdrawal of Partners, or changes in the number or type of OP Units held by
a Partner, accomplished in accordance with this Agreement;
(3) to set forth the designations, rights, powers, duties,
and preferences of the holders of any additional Partnership Interests issued
pursuant to Section 4.3 hereof;
(4) to reflect a change that is of an inconsequential nature
or does not adversely affect the Limited Partners in any material respect; to
cure any ambiguity, correct, or supplement in an inconsequential manner any
provision in this Agreement not inconsistent with law or with other
provisions; or to 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; and
(5) 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, rules or
regulations.
After taking any action under this Section 14.1B, the General Partner shall
provide notice to the Limited Partners of the taking of such action.
C. Notwithstanding Section 14.1A and 14.1B, this Agreement shall
not be amended without the consent of the General Partner and each Limited
Partner materially adversely affected if such amendment would (i) convert a
Limited Partner's interest in the Partnership into a general partner
interest; (ii) modify the limited liability of a Limited Partner in a manner
adverse to such Limited Partner; (iii) alter a Partner's right to receive
distributions by specifically amending Section 5.1 or Section 13.2, or
specifically alter the allocations specified in Article 6 by amending Article
6, Section 7.3B or Exhibit B (except as permitted pursuant to Article 4 and
Sections 5.4 and 14.1B(3)), provided that any amendment of any provision of
this Agreement that, in the good faith judgment of the General Partner, does
not have the effect of amending in a manner materially adverse to the Limited
Partners considered as a whole Section 5.1, Section 13.2, Article 6, Section
7.3B or Exhibit B shall not be subject to this Section 14.1C(iii); (iv) cause
the termination of the Partnership prior to the time set forth in Sections
2.5 and 13.1; or (v) amend Section 7.1A(3) or this Section 14.1C (or, in the
case of an amendment pursuant to Section 14.1B, amend Sections 8.5A, 8.6, or
9.3, the final sentence of Section 10.3B, or, except as provided in Article
4, Exhibit A).
14.2 Action by Limited Partners.
A. 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 Limited Partners holding 25 percent or more of the Partnership
Interests. The request 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 (7) days nor more than thirty (30) days prior to the date of
such meeting. Partners may vote in person or by proxy at such meeting.
Whenever the vote or consent of the Limited Partners is permitted or required
under this Agreement, such vote or consent may be given at a meeting of the
Partners by the holders of such percentage of the Percentage Interests or OP
Common Units as is expressly required by this Agreement or may be given in
accordance with the procedure prescribed in Section 14.1A or in accordance
with the procedure prescribed in Section 14.2B.
B. Any vote or consent of the Limited Partners permitted or
required under this Agreement and action required or permitted to be taken at
a meeting of the Partners may be taken without a meeting if written
consent(s) setting forth the action so taken is signed by the holders of such
percentage of the Percentage Interests or the OP Common Units as is expressly
required by this Agreement. Such consent may be in one instrument or in
several instruments. Such consent shall be filed with the records of the
Partnership.
C. Each Limited Partner may authorize any Person or Persons to
act for such Limited Partner 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 such Limited Partner's attorney-in-fact. No proxy shall
be valid after the expiration of eleven (11) months from the date thereof
unless otherwise provided in the proxy. Every proxy shall be revocable at
the pleasure of the Limited Partner executing it, such revocation to be
effective upon the Partnership's receipt of written notice of such revocation
from the Limited Partner executing such proxy.
D. Each meeting of the 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
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 made when
delivered in person or three business days after being sent by first class
United States mail or one business day after being sent by nationally
recognized overnight delivery service or, upon receipt, when sent by
facsimile transmission to the Partner or Assignee at the address set forth in
Exhibit A or such other address of which the Partner shall notify the General
Partner in writing.
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.
15.3 Certain Terms. 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. References to the "sole discretion" of
the General Partner or Liquidator mean the sole and absolute discretion of
the General Partner or Liquidator, as the case may be.
15.4 Effectiveness of Certain Provisions. The provisions of this
Agreement relating to the Persons who will be admitted as limited partners in
the Partnership in connection with the transactions contemplated by the
Contribution Agreement shall not be effective with respect to each such
Person until consummation of the transactions contemplated by the
Contribution Agreement and admission of such Person as a limited partner of
the Partnership which admission shall occur without any further action of any
Person upon such consummation.
15.5 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.
15.6 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.
15.7 Creditors. Other than as expressly set forth herein with respect
to the Indemnitees, none of the provisions of this Agreement shall be for the
benefit of, or shall be enforceable by, any creditor of the Partnership.
15.8 Waiver. No failure by any party to insist upon the strict
performance of any covenant, duty, agreement, or condition of this Agreement
or to exercise any right or remedy consequent upon a breach thereof shall
constitute waiver of any such breach or any other covenant, duty, agreement,
or condition.
15.9 Counterparts. This Agreement may be executed in counterparts, all
of which together shall constitute one agreement binding on all of the
parties hereto, notwithstanding that all such parties are not signatories to
the original or the same counterpart. Each party shall become bound by this
Agreement immediately upon affixing its signature hereto.
15.10 Applicable Law. This Agreement shall be construed and
enforced in accordance with and governed by the laws of the State of
Delaware, without regard to the principles of conflicts of laws thereof.
15.11 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.
15.12 Entire Agreement. This Agreement 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.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first written above.
GENERAL PARTNER:
KRT TRUST
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: President
LIMITED PARTNERS:
By: KRT TRUST I LLC
By: KRT Trust, its sole member
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: President
COUNTERPART SIGNATURE PAGE
TO AMENDED AND RESTATED AGREEMENT
OF
LIMITED PARTNERSHIP
OF
KRAMONT OPERATING PARTNERSHIP, L.P.
The undersigned agrees to be bound as successor General Partner by
all of the terms and conditions of the Amended and Restated Agreement of
Limited Partnership of Kramont Operating Partnership, L.P.
KRAMONT REALTY TRUST
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: President and Chief Executive Officer
Address for Notice:
Dated: 6/16, 2000
COUNTERPART SIGNATURE PAGE
TO AMENDED AND RESTATED AGREEMENT
OF
LIMITED PARTNERSHIP
OF
KRAMONT OPERATING PARTNERSHIP, L.P.
The undersigned agrees to be bound as a Limited Partner by all of
the terms and conditions of the Amended and Restated Agreement of Limited
Partnership of Kramont Operating Partnership, L.P.
Name:
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
Address for Notice:
Dated: 3/10, 2000
COUNTERPART SIGNATURE PAGE
TO AMENDED AND RESTATED AGREEMENT
OF
LIMITED PARTNERSHIP
OF
KRAMONT OPERATING PARTNERSHIP, L.P.
The undersigned agrees to be bound as a Limited Partner by all of
the terms and conditions of the Amended and Restated Agreement of Limited
Partnership of Kramont Operating Partnership, L.P.
Name:
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------- ------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
Address for Notice:
Dated: 3/10, 2000
COUNTERPART SIGNATURE PAGE
TO AMENDED AND RESTATED AGREEMENT
OF
LIMITED PARTNERSHIP
OF
KRAMONT OPERATING PARTNERSHIP, L.P.
The undersigned agrees to be bound as a Limited Partner by all of
the terms and conditions of the Amended and Restated Agreement of Limited
Partnership of Kramont Operating Partnership, L.P.
Name:
By:/s/ ▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------- ------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:
Address for Notice:
▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Dated: March 23, 2000
COUNTERPART SIGNATURE PAGE
TO AMENDED AND RESTATED AGREEMENT
OF
LIMITED PARTNERSHIP
OF
KRAMONT OPERATING PARTNERSHIP, L.P.
The undersigned agrees to be bound as a Limited Partner by all of
the terms and conditions of the Amended and Restated Agreement of Limited
Partnership of Kramont Operating Partnership, L.P.
Name:
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title:
Address for Notice:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Dated: 3/10, 2000
COUNTERPART SIGNATURE PAGE
TO AMENDED AND RESTATED AGREEMENT
OF
LIMITED PARTNERSHIP
OF
KRAMONT OPERATING PARTNERSHIP, L.P.
The undersigned agrees to be bound as a Limited Partner by all of
the terms and conditions of the Amended and Restated Agreement of Limited
Partnership of Kramont Operating Partnership, L.P.
Name:
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title:
Address for Notice:
▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Dated: March 23, 2000
COUNTERPART SIGNATURE PAGE
TO AMENDED AND RESTATED AGREEMENT
OF
LIMITED PARTNERSHIP
OF
KRAMONT OPERATING PARTNERSHIP, L.P.
The undersigned agrees to be bound as a Limited Partner by all of
the terms and conditions of the Amended and Restated Agreement of Limited
Partnership of Kramont Operating Partnership, L.P.
Name: ▇▇▇▇▇▇▇▇▇▇ ▇.▇., Inc.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: President
Address for Notice:
Dated: 3/10, 2000
COUNTERPART SIGNATURE PAGE
TO AMENDED AND RESTATED AGREEMENT
OF
LIMITED PARTNERSHIP
OF
KRAMONT OPERATING PARTNERSHIP, L.P.
The undersigned agrees to be bound as a Limited Partner by all of
the terms and conditions of the Amended and Restated Agreement of Limited
Partnership of Kramont Operating Partnership, L.P.
Name:
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title:
Address for Notice:
c/o ▇▇▇▇ ▇. ▇▇▇▇▇ CPA
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Dated: 3/10, 2000
COUNTERPART SIGNATURE PAGE
TO AMENDED AND RESTATED AGREEMENT
OF
LIMITED PARTNERSHIP
OF
KRAMONT OPERATING PARTNERSHIP, L.P.
The undersigned agrees to be bound as a Limited Partner by all of
the terms and conditions of the Amended and Restated Agreement of Limited
Partnership of Kramont Operating Partnership, L.P.
Name: Whitemont Plaza, Inc.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: President
Address for Notice:
Dated: 3/10, 2000
COUNTERPART SIGNATURE PAGE
TO AMENDED AND RESTATED AGREEMENT
OF
LIMITED PARTNERSHIP
OF
KRAMONT OPERATING PARTNERSHIP, L.P.
The undersigned agrees to be bound as a Limited Partner by all of
the terms and conditions of the Amended and Restated Agreement of Limited
Partnership of Kramont Operating Partnership, L.P.
Name:
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title:
Address for Notice:
Dated: March 10, 2000
COUNTERPART SIGNATURE PAGE
TO AMENDED AND RESTATED AGREEMENT
OF
LIMITED PARTNERSHIP
OF
KRAMONT OPERATING PARTNERSHIP, L.P.
The undersigned agrees to be bound as a Limited Partner by all of
the terms and conditions of the Amended and Restated Agreement of Limited
Partnership of Kramont Operating Partnership, L.P.
Name: Whitemont Inc.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: President
Address for Notice:
Dated: 3/10, 2000
COUNTERPART SIGNATURE PAGE
TO AMENDED AND RESTATED AGREEMENT
OF
LIMITED PARTNERSHIP
OF
KRAMONT OPERATING PARTNERSHIP, L.P.
The undersigned agrees to be bound as a Limited Partner by all of
the terms and conditions of the Amended and Restated Agreement of Limited
Partnership of Kramont Operating Partnership, L.P.
Name:
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title:
Address for Notice:
Dated: 3/10, 2000
COUNTERPART SIGNATURE PAGE
TO AMENDED AND RESTATED AGREEMENT
OF
LIMITED PARTNERSHIP
OF
KRAMONT OPERATING PARTNERSHIP, L.P.
The undersigned agrees to be bound as a Limited Partner by all of
the terms and conditions of the Amended and Restated Agreement of Limited
Partnership of Kramont Operating Partnership, L.P.
Name:
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title:
Address for Notice:
Dated: 3/10, 2000
COUNTERPART SIGNATURE PAGE
TO AMENDED AND RESTATED AGREEMENT
OF
LIMITED PARTNERSHIP
OF
KRAMONT OPERATING PARTNERSHIP, L.P.
The undersigned agrees to be bound as a Limited Partner by all of
the terms and conditions of the Amended and Restated Agreement of Limited
Partnership of Kramont Operating Partnership, L.P.
Name:
By: /s/ ▇▇▇▇▇▇▇▇ Gallinty
------------------------------
Name: ▇▇▇▇▇▇▇▇ Gallinty
Title:
Address for Notice:
Dated: 3/10, 2000
COUNTERPART SIGNATURE PAGE
TO AMENDED AND RESTATED AGREEMENT
OF
LIMITED PARTNERSHIP
OF
KRAMONT OPERATING PARTNERSHIP, L.P.
The undersigned agrees to be bound as a Limited Partner by all of
the terms and conditions of the Amended and Restated Agreement of Limited
Partnership of Kramont Operating Partnership, L.P.
Name: Plymont Inc.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: President
Address for Notice:
Dated: 3/10, 2000
COUNTERPART SIGNATURE PAGE
TO AMENDED AND RESTATED AGREEMENT
OF
LIMITED PARTNERSHIP
OF
KRAMONT OPERATING PARTNERSHIP, L.P.
The undersigned agrees to be bound as a Limited Partner by all of
the terms and conditions of the Amended and Restated Agreement of Limited
Partnership of Kramont Operating Partnership, L.P.
Name: Retail Pharmacy Properties III, Inc.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: President
Address for Notice:
Dated: 3/10, 2000
COUNTERPART SIGNATURE PAGE
TO AMENDED AND RESTATED AGREEMENT
OF
LIMITED PARTNERSHIP
OF
KRAMONT OPERATING PARTNERSHIP, L.P.
The undersigned agrees to be bound as a Limited Partner by all of
the terms and conditions of the Amended and Restated Agreement of Limited
Partnership of Kramont Operating Partnership, L.P.
Name:
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title:
Address for Notice:
Dated: 3/10, 2000
COUNTERPART SIGNATURE PAGE
TO AMENDED AND RESTATED AGREEMENT
OF
LIMITED PARTNERSHIP
OF
KRAMONT OPERATING PARTNERSHIP, L.P.
The undersigned agrees to be bound as a Limited Partner by all of
the terms and conditions of the Amended and Restated Agreement of Limited
Partnership of Kramont Operating Partnership, L.P.
Name:
By: /s/ ▇▇▇▇▇ ▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇
Title:
Address for Notice:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇. ▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Dated: March 20, 2000
COUNTERPART SIGNATURE PAGE
TO AMENDED AND RESTATED AGREEMENT
OF
LIMITED PARTNERSHIP
OF
KRAMONT OPERATING PARTNERSHIP, L.P.
The undersigned agrees to be bound as a Limited Partner by all of
the terms and conditions of the Amended and Restated Agreement of Limited
Partnership of Kramont Operating Partnership, L.P.
Name:
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title:
Address for Notice:
Dated: 3/20, 2000
COUNTERPART SIGNATURE PAGE
TO AMENDED AND RESTATED AGREEMENT
OF
LIMITED PARTNERSHIP
OF
KRAMONT OPERATING PARTNERSHIP, L.P.
The undersigned agrees to be bound as a Limited Partner by all of
the terms and conditions of the Amended and Restated Agreement of Limited
Partnership of Kramont Operating Partnership, L.P.
Name:
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title:
Address for Notice:
Dated: March 21, 2000
COUNTERPART SIGNATURE PAGE
TO AMENDED AND RESTATED AGREEMENT
OF
LIMITED PARTNERSHIP
OF
KRAMONT OPERATING PARTNERSHIP, L.P.
The undersigned agrees to be bound as a Limited Partner by all of
the terms and conditions of the Amended and Restated Agreement of Limited
Partnership of Kramont Operating Partnership, L.P.
Name:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇ By: /s/ ▇▇▇▇ ▇▇▇▇
------------------------- ------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇
Title:
Address for Notice:
Dated: March 21, 2000
COUNTERPART SIGNATURE PAGE
TO AMENDED AND RESTATED AGREEMENT
OF
LIMITED PARTNERSHIP
OF
KRAMONT OPERATING PARTNERSHIP, L.P.
The undersigned agrees to be bound as a Limited Partner by all of
the terms and conditions of the Amended and Restated Agreement of Limited
Partnership of Kramont Operating Partnership, L.P.
Name: ▇▇▇▇▇▇▇▇▇▇ ▇▇ Realty Trust
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title:
Address for Notice:
Dated: 3/10, 2000
COUNTERPART SIGNATURE PAGE
TO AMENDED AND RESTATED AGREEMENT
OF
LIMITED PARTNERSHIP
OF
KRAMONT OPERATING PARTNERSHIP, L.P.
The undersigned agrees to be bound as a Limited Partner by all of
the terms and conditions of the Amended and Restated Agreement of Limited
Partnership of Kramont Operating Partnership, L.P.
Name:
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title:
Address for Notice:
Dated: March 10, 2000
COUNTERPART SIGNATURE PAGE
TO AMENDED AND RESTATED AGREEMENT
OF
LIMITED PARTNERSHIP
OF
KRAMONT OPERATING PARTNERSHIP, L.P.
The undersigned agrees to be bound as a Limited Partner by all of
the terms and conditions of the Amended and Restated Agreement of Limited
Partnership of Kramont Operating Partnership, L.P.
Name:
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇ TR
------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇ as Trustee of the
Title: ▇▇▇▇▇ ▇▇▇▇ Family Trust
Address for Notice:
Dated: March 20, 2000
Exhibit A
to the Kramont
Partnership Agreement
Partners' Contributions and Partnership Interests as of June 16, 2000
Gross Asset Value
Name and Address Cash of Contributed Total Net Op Common Percentage
of Partner Contributions Property(1) Liabilities(1) Contribution(2) Units Interest(3)
---------------- ------------- ---------------- -------------- --------------- ---------- ------------
General Partner
---------------
Kramont Realty Trust
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ 1 .000005%
Limited Partners
----------------
Kramont Realty Trust
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ 18,753,050 93.492318%
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ 578,773 2.885442%
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
& ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ 89,909 .448236%
▇▇▇▇ ▇. and ▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ 89,909 .448236%
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ 17,971 .089593%
▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ 69,727 .347620%
▇▇▇▇▇▇▇▇▇▇ ▇.▇., Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ 2,714 .013530%
▇▇▇▇▇ ▇▇▇▇▇
c/o ▇▇▇▇ ▇. ▇▇▇▇▇ CPA
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ 110,956 .553165%
Whitemont Plaza Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ 1,307 .006516%
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ 29,425 .146697%
Whitemont Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ 641 .003196%
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ 20,957 .104480%
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ 34,013 .169570%
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ 6,108 .030451%
Plymont Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ 61 .000304%
Retail Pharmacy Properties
III, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ 824 .004108%
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ 4,121 .020545%
H. ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇.
▇. ▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ 78,149 .389608%
▇▇▇▇▇▇ ▇▇▇▇ as Trustee of the
▇▇▇▇▇ ▇▇▇▇ Family Trust
▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇. #▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ 66,656 .332310%
▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ 11,486 .057263%
▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ 66,656 .332310%
▇▇▇▇▇▇ ▇. and ▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ 11,486 .057263%
▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ 2,000 .009971%
▇▇▇▇▇▇ ▇▇▇▇ as Trustee of the
▇▇▇▇▇▇ ▇▇▇▇ Family Trust
▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇. #▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ 11,486 .057263%
---------- -----------
20,058,386 100.000000%
========== ===========
1. All assets, including partnership interests, should be valued "gross"
and all liabilities should be separately listed hereon. All capitalized
terms used in the notes to this Exhibit A and not otherwise defined
herein shall have the meanings ascribed to them in this Amended and
Restated Agreement of Limited Partnership of Kramont Operating
Partnership, L.P.
2. Provided that the Kranzco Reorganization and the Trust Merger (as those
terms are defined in the Agreement and Plan of Reorganization and Merger
among Kranzco Realty Trust, KRT Trust, CV Reit, Inc. and Kramont Realty
Trust, dated as of December 10, 1999 (the "Plan of Reorganization"))
shall have occurred immediately prior to the Effective Time (as defined
in the Plan of Reorganization) and that the transactions described in
section 5.3 of the Plan of Reorganization shall have occurred
immediately after the Effective Time, it is appropriate to treat, and
this Exhibit A accordingly does treat, all of the assets that are being
contributed to the Partnership through the date hereof as having been
contributed in a single transaction, without any need for revaluation
under clause 2 of the definition of "Gross Asset Value."
For purposes of this footnote, "Newco Preferred Amount" means the
liquidation preference (exclusive of accumulated or accrued and unpaid
dividends) of the Kramont Preferred Shares (as defined in the Plan of
Reorganization) corresponding to the OP Preferred Units issued to the
Company (hereafter "Kramont") on the date hereof, as such value is
determined by Kramont in its reasonable discretion.
All of Kranzco's (as defined in the Plan of Reorganization) and its
qualified REIT subsidiaries' existing tangible and intangible assets,
including goodwill and going concern value will be transferred to the
Partnership, and all assets acquired by Kramont in the CV Merger (as
defined in the Plan of Reorganization), including specifically, but
without limitation, the interest of ▇▇▇▇▇▇▇▇▇▇ ▇▇ Realty Trust (f/k/a
▇▇▇▇▇▇▇▇▇▇ ▇▇ Trust) in ▇▇▇▇▇▇▇▇▇▇ ▇▇ Realty L.P. (as such terms are
defined in the Plan of Reorganization), except for (1) stock and
beneficial interests in qualified REIT Subsidiaries, and (2) the Florida
Land, will be contributed to the Partnership. The foregoing
contributions will be subject to and the Partnership will assume all of
Kranzco's and CV Reit, Inc.'s ("CV") (and their respective qualified
REIT subsidiaries') liabilities. No cash will be retained at the
Kramont level, except, possibly, cash needed to pay dividends declared
(or relating to the current quarter), but not yet paid, on the closing
date. Kramont's total net contribution (to which liabilities will be
added back and from which cash contributed will be subtracted to
determine the Gross Asset Value of Kramont's contribution of property
other than cash) will be set at fair market value, which Kramont may
determine to be not higher than the highest of and not lower than the
lowest of (1) the sum of the Newco Preferred Amount plus $187,530,510,
(2) the sum of the Newco Preferred Amount plus 177.54% of the excess of
Kranzco's net GAAP book value on the date of signing of the Plan of
Reorganization over the Newco Preferred Amount, (3) the sum of the Newco
Preferred Amount plus 177.47% of the excess of Kranzco's net GAAP book
value immediately prior to the Effective Time over the Newco Preferred
Amount, (4) the sum of the Newco Preferred Amount plus the product of
18,753,051 [i.e., the sum of 10,566,632 (the number of Kranzco common
shares outstanding at the Effective Time) plus 8,111,419 (the number of
CV shares outstanding at the Effective Time) plus 75,000 (the number of
Kramont common shares to be purchased by ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
contemporaneously with the Effective Time)] multiplied by the price per
share of one common share of beneficial interest in Kramont immediately
after the Effective Time, in each case appropriately adjusted for
payment of transaction costs and retention of cash by Kramont.
After subtracting the Newco Preferred Amount from Kramont's total net
contribution (as determined above), the total net contributions for all
Partners will be proportionate to their OP Common Units.
3. Percentage Interests may not add to exactly 100.000000% due to rounding.
Kramont will also be issued the following OP Preferred Units: 11,155
Series A-1 OP Preferred Units; 1,183,277 Series B-1 OP Preferred Units;
and 1,800,000 Series D Preferred Units. The Capital Contributions
attributable to each of the OP Preferred Units shall be equal to their
respective liquidation preferences (excluding accumulated or accrued and
unpaid dividends) of the corresponding Kramont Preferred Shares, as
determined by Kramont in its reasonable discretion.
Exhibit B
to the Kramont
Partnership Agreement
Allocations of Partnership Items
1. Allocation of Net Income and Net Loss.
(a) Net Income. (1) Except as otherwise provided in Section 7.3B, this
Exhibit B and any OP Unit Designation, Net Income (or items thereof) for any
fiscal year or other applicable period shall be allocated to the OP Common
Unit Partners in accordance with their respective Percentage Interests.
(2) Notwithstanding paragraph 1(a)(1) above, Net Income (or items
thereof) shall first be allocated among the OP Preferred Unit Partners, in
proportion to the amounts of Net Loss (or items thereof) that have been
allocated to them pursuant to paragraph 1(b)(2) below, until the cumulative
amounts of Net Income (or items thereof) allocated hereunder to each OP
Preferred Unit Partner equals the cumulative amounts of Net Loss (or items
thereof) theretofore allocated to each such OP Preferred Unit Partner.
(b) Net Loss. (1) Except as otherwise provided in this Exhibit B, Net
Loss (or items thereof) of the Partnership for each fiscal year or other
applicable period shall be allocated to the OP Common Unit Partners in
accordance with the OP Common Unit Partners' respective Percentage Interests.
Notwithstanding the preceding sentence, to the extent any Net Loss (or items
thereof) allocated to an OP Common Unit Partner under this subparagraph
(b)(1) would cause such OP Common Unit Partner (hereinafter, a "Restricted
Partner") to have an Adjusted Capital Account Deficit, or increase the amount
of an existing Adjusted Capital Account Deficit, as of the end of the fiscal
year or other applicable period to which such Net Loss relates, such Net Loss
shall not be allocated to such Restricted Partner and instead shall be
allocated to the other OP Common Unit Partner(s) (hereinafter, the "Permitted
Partners") pro rata in accordance with each Permitted Partner's Percentage
Interest.
(2) If there is no OP Common Unit Partner who does not have an
Adjusted Capital Account Deficit, then Net Loss (or items thereof) shall be
allocated among the OP Preferred Unit Partners in accordance with their
respective positive Capital Account balances until such balances reach zero.
(c) Terminating Capital Transaction; Liquidation. Allocations of Net
Income or Net Loss (or items thereof) in connection with a Terminating
Capital Transaction or Liquidation (as defined in Treasury Regulation section
1.704-1(b)(2)(ii)(g)) of the Partnership shall be made so that, to the extent
possible, (i) first, the OP Preferred Unit Partners' respective Capital
Account balances are equal (as nearly as possible) to the amounts they are
entitled to receive pursuant to their respective OP Unit Designations, and
(ii) second, the OP Common Unit Partners' respective Capital Account balances
are proportionate to their Percentage Interests. In the event that the
Capital Account balance of more than one OP Common Unit Partner is
disproportionate to such OP Common Unit Partner's Percentage Interest, the
largest such relative disproportion shall be cured first, until it is equal,
on a relative basis, to the next largest such disproportion, and so on, to
the extent Net Income or Net Loss (or items thereof) are available.
Notwithstanding the preceding sentence, to the extent any Net Loss (or items
thereof) would be allocated to a Restricted Partner under this subparagraph
(c), such Net Loss shall not be allocated to such Restricted Partner and
instead shall be allocated to the Permitted Partners pro rata in accordance
with each Permitted Partner's Percentage Interest.
(d) Rules of Construction.
(1) Capital Account Increases. For purposes of making
allocations pursuant to subparagraph 1(c) of this Exhibit B, a
Partner's Capital Account balance shall be deemed to be increased
by such Partner's share of any Partnership Minimum Gain and Partner
Minimum Gain remaining at the close of the fiscal period in respect
of which such allocations are being made.
(2) Change in Percentage Interests. In the event any
Partner's Percentage Interest changes during a fiscal year for any
reason, including without limitation, the Transfer of any interest
in the Partnership, the tax allocations contained in this Exhibit B
shall be applied as necessary to reflect the varying interests of
the Partners during such year.
2. Special Allocations.
Notwithstanding any provisions of paragraph 1 of this Exhibit B, the
following special allocations shall be made.
(a) Minimum Gain Chargeback (Nonrecourse Liabilities). Except as
otherwise provided in section 1.704-2(f) of the Regulations, if there is a
net decrease in Partnership Minimum Gain for any Partnership 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 to
the extent required by Regulations section 1.704-2(f). The items to be so
allocated shall be determined in accordance with sections 1.704-2(f) and (i)
of the Regulations. This subparagraph 2(a) is intended to comply with the
minimum gain chargeback requirement in said section of the Regulations and
shall be interpreted consistently therewith. Allocations pursuant to this
subparagraph 2(a) shall be made in proportion to the respective amounts
required to be allocated to each Partner pursuant hereto.
(b) Partner Minimum Gain Chargeback. Except as otherwise provided in
section 1.704-2(i)(4) of the Regulations, 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
section 1.704- 2(i)(5) of the Regulations, shall be specially allocated items
of Partnership income and gain for such year (and, if necessary, subsequent
years) in an amount equal to that Partner's share of the net decrease in the
Partner Minimum Gain attributable to such Partner Nonrecourse Debt to the
extent and in the manner required by section 1.704-2(i) of the Regulations.
The items to be so allocated shall be determined in accordance with sections
1.704-2(i)(4) and (j)(2) of the Regulations. This subparagraph 2(b) is
intended to comply with the minimum gain chargeback requirement with respect
to Partner Nonrecourse Debt contained in said section of the Regulations and
shall be interpreted consistently therewith. Allocations pursuant to this
subparagraph 2(b) shall be made in proportion to the respective amounts
required to be allocated to each Partner pursuant hereto.
(c) Qualified Income Offset. In the event a Partner unexpectedly
receives any adjustments, allocations, or distributions described in section
1.704-1(b)(2)(ii)(d)(4), (5), or (6) of the Regulations, and such Partner has
an Adjusted Capital Account Deficit, items of Partnership income (including
gross income) and gain shall be specially allocated to such Partner in an
amount and manner sufficient to eliminate the Adjusted Capital Account
Deficit as quickly as possible as required by the Regulations. This
subparagraph 2(c) is intended to constitute a "qualified income offset" under
section 1.704-1(b)(2)(ii)(d) of the Regulations and shall be interpreted
consistently therewith.
(d) Other Chargeback of Impermissible Negative Capital Account. To the
extent any Partner has an Adjusted Capital Account Deficit at the end of any
Partnership fiscal year, each such Partner shall be specially allocated items
of Partnership income (including gross income) and gain in the amount of such
excess as quickly as possible, provided that an allocation pursuant to this
paragraph 2(d) shall be made if and only to the extent that such Partner
would have an Adjusted Capital Account Deficit after all other allocations
provided for in this Exhibit B have been tentatively made as if this
paragraph 2(d) were not in the Agreement.
(e) Nonrecourse Deductions. Nonrecourse Deductions for any fiscal year
or other applicable period shall be allocated to the Partners in accordance
with their respective Percentage Interests.
(f) Partner Nonrecourse Deductions. Partner Nonrecourse Deductions for
any fiscal year or other applicable period with respect to a Partner
Nonrecourse Debt shall be specially allocated to the Partner that bears the
economic risk of loss for such Partner Nonrecourse Debt (as determined under
sections 1.704-2(b)(4) and 1.704-2(i)(1) of the Regulations).
(g) Intent of Allocations. The parties intend that the allocation
provisions of this Exhibit B shall result in final Capital Account balances
of the (i) OP Preferred Unit Partners, equal to the amounts they are entitled
to receive pursuant to their respective OP Unit Designations, and (ii) OP
Common Unit Partners, that are in proportion to the OP Common Unit Partners'
respective Percentage Interests, so that when liquidating distributions are
made in accordance with Sections 13.2A(3) and (4), such distributions will be
made to the (a) OP Preferred Unit Partners, in amounts equal to their
respective Capital Account balances, and (b) OP Common Unit Partners, in
proportion to respective Percentage Interests. To the extent that such final
Capital Account balances would not so reflect the provisions of this Exhibit
B, income and loss of the Partnership for the current year and future years,
as computed for book purposes, shall be allocated among the OP Preferred Unit
Partners and the OP Common Unit Partners so as to result in final Capital
Account balances reflecting the provisions of this Exhibit B. This
subparagraph shall control notwithstanding any reallocation of income, loss,
or items thereof, as computed for book purposes, by the Internal Revenue
Service or any other taxing authority.
(h) Section 754 Adjustment. To the extent an adjustment to the
adjusted tax basis of any asset of the Partnership pursuant to section 734(b)
of the Code or section 743(b) of the Code is required, pursuant to section
1.704-1(b)(2)(iv)(m) of the Regulations, to be taken into account in
determining Capital Accounts, 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 among the Partners in a manner
consistent with the manner in which each of their respective Capital Accounts
are required to be adjusted pursuant to such section of the Regulations.
3. Tax Allocations.
(a) Items of Income or Loss. Except as is otherwise provided in this
Exhibit B or in the Code and Regulations, an allocation of Partnership Net
Income or Net Loss to a Partner shall be treated as an allocation to such
Partner of the same share of each item of income, gain, loss, deduction, and
item of tax-exempt income or Code section 705(a)(2)(B) expenditure (or item
treated as such expenditure pursuant to Regulations section
1.704-1(b)(2)(iv)(i)) ("Tax Items") that is taken into account in computing
Net Income or Net Loss. Tax Items with respect to Partnership property that
is subject to Code section 704(c) and/or Regulations section
1.704-1(b)(2)(iv)(f) shall be allocated in accordance with Code section
704(c) and Regulations section 1.704-3.
(b) Section 1245/1250 Recapture. To the extent not otherwise required
by the Code or Regulations, if any portion of gain from the sale of
Partnership assets is treated as gain which is ordinary income by virtue of
the application of Code section 1250 ("Affected Gain"), then such Affected
Gain shall be allocated among the Partners in the same proportion that the
depreciation and amortization deductions giving rise to the Affected Gain
were allocated. This subparagraph 3(b) shall not alter the amount of Net
Income (or items thereof) allocated among the Partners, but merely the
character of such Net Income (or items thereof). Items governed by section
1.1245-1(e) of the Regulations shall be allocated in accordance with that
section.
(c) Excess Nonrecourse Liabilities. Each Partner who has contributed
an asset to the Partnership shall be allocated, to the extent possible, a
share of "excess nonrecourse liabilities" of the Partnership which results in
such Partner's being allocated nonrecourse liabilities in an amount which is
at least equal to the amount of income that would otherwise be realized by
such Partner pursuant to section 731 of the Code in connection with the
contribution of such asset to the Partnership or with any reduction in
"section 704(c) minimum gain" with respect thereto prior to the end of the
taxable year of the contribution (the "Liability Shortfall"). In the event
there is an insufficient amount of nonrecourse liabilities to allocate to
each Partner an amount of nonrecourse liabilities equal to the Liability
Shortfall, then an amount of nonrecourse liabilities in proportion to, and to
the extent of, the Liability Shortfall shall be allocated to each Partner.
(d) References to Regulations. Any reference in this Exhibit B or the
Agreement to a provision of proposed and/or temporary Regulations shall, in
the event such provision is modified or renumbered, be deemed to refer to the
successor provision as so modified or renumbered, but only to the extent such
successor provision applies to the Partnership under the effective date rules
applicable to such successor provision.
(e) Successor Partners. For purposes of this Exhibit B, a transferee
of a Partnership Interest shall be deemed to have been allocated the Net
Income, Net Loss, and other items of Partnership income, gain, loss,
deduction, and credit allocable to the transferred Partnership Interest that
previously have been allocated to the transferor Partner pursuant to this
Agreement.
For purposes of this Exhibit B the following terms have the
meanings set forth below:
"OP Common Unit Partner" means a holder of one or more OP Common
Units; and
"OP Preferred Unit Partner" means a holder of one or more OP
Preferred Units.
Exhibit C
to the Kramont
Partnership Agreement
Form of Notice of Redemption
To:
Kramont Realty Trust
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
1. The undersigned (the "Redeeming Partner") hereby elects to redeem ______
OP Units, pursuant to Section 8.6 of that certain Amended and Restated
Agreement of Limited Partnership of Kramont Operating Partnership, L.P.,
dated as of ________, 1999, and entered into by and among ________ (the
"Company"), a Maryland real estate investment trust, and certain other
parties set forth on Exhibit A thereto (the "Partnership Agreement").
Capitalized terms used in this Notice of Redemption and not otherwise defined
shall have the meanings given to such terms in the Partnership Agreement.
2. The Redeeming Partner, intending that the Company, its Affiliates, and
Kramont Operating Partnership, L.P. (the "Partnership") rely on the
representations and warranties in this Notice of Redemption, hereby
represents and warrants as follows:
(i) The Redeeming Partner is the registered holder of ______ OP Units
evidenced by Certificate number(s) _______ enclosed with this Notice of
Redemption (the "Certificate") (to the extent OP Units are evidenced by
certificates); (ii) the Redeeming Partner is the sole legal and beneficial
owner (with any exceptions noted below) of the OP Units evidenced by the
Certificate, free and clear of all liens, claims, encumbrances,
restrictions, agreements or rights of third parties of any kind whatsoever
("Liens"); (iii) the Redeeming Partner has full power and authority to
execute this Certificate and redeem the OP Units to which it relates and this
Certificate is enforceable against the Redeeming Partner in accordance with
its terms.
[State exceptions to full legal and beneficial ownership of the OP Units by
the Redeeming Partner, free and clear of Liens, if any:]
3. The Redeeming Partner understands that, upon receipt of this Notice by
the Partnership, General Partner may, in its sole and absolute discretion,
elect (the "Payment Election") to assume directly and satisfy the Redemption
Right being exercised herewith either by paying to the Redeeming Partner the
Cash Amount or, with certain qualifications more fully detailed in the
Partnership Agreement, issuing to the Redeeming Partner the Shares Amount.
4. In order for the General Partner to make an informed decision regarding
the Payment Election, the Redeeming Partner hereby confirms, acknowledges,
represents, and warrants that assuming the Redeeming Partner were to receive
Shares in lieu of the Cash Amount:
(i) the Redeeming Partner understands that, subject to certain
registration rights in the Partnership Agreement, offer and sale of the
Shares are restricted under the Federal securities laws;
(ii) the Redeeming Partner will not offer, sell, or otherwise
transfer the Shares without registration under the Securities Act or an
exemption therefrom and compliance with and any applicable state securities
laws;
(iii) the Redeeming Partner is not domiciled in nor a resident of
California (nor is any direct or indirect owner of the Redeeming Partner
domiciled in or a resident of California);
(iv) the Redeeming Partner is not a "benefit plan investor" within
the meaning of 29 C.F.R. Section 2510.3-101;
(v) the Redeeming Partner is able to bear the economic risk
attendant with the ownership of the Shares;
(vi) the Redeeming Partner agrees that the following legend or a
substantially similar legend may be placed on the certificates representing
the Shares and a stop transfer order may be placed with respect thereto:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, AND CAN NOT BE OFFERED OR SOLD EXCEPT
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT OR AN
EXEMPTION FROM REGISTRATION UNDER SUCH ACT WHICH, IN THE OPINION OF COUNSEL
FOR THE HOLDER, IS AVAILABLE, WHICH COUNSEL AND OPINION ARE REASONABLY
SATISFACTORY TO COUNSEL FOR THIS CORPORATION.";
(vii) No provision of the Redeeming Partner's certificate of
incorporation or by-laws, or of any agreement, instrument, or understanding
to which the Redeeming Partner is a party or by which it is bound, has been
or would be violated by the execution and delivery of this Notice of
Redemption or the transactions contemplated hereby, and all requisite
corporate and other authorizations for such execution, delivery, performance,
and satisfaction of this Notice of Redemption or the transactions
contemplated hereby shall have been, at or prior to the delivery of this
Notice of Redemption, duly obtained;
(viii) If the General Partner shall transfer Shares to the Redeeming
Partner in satisfaction of the Redemption Right and the Redeeming Partner
shall be entitled to include such Shares under a Registration Statement of
the Company, the Redeeming Partner:
[check whichever is applicable]
___ Does
___ Does Not
intend to offer and to sell the Shares received under such Registration
Statement and will provide such information and sign such documents as the
Company shall reasonably request with respect to inclusion of the sale of
such Shares in such Registration Statement.
4. If the General Partner elects to satisfy the Redemption Rights which are
the subject of this Notice of Redemption by paying to the Redeeming Partner
the Shares Amount, please issue a certificate or certificates representing
the Shares Amount such Redeeming Partner is entitled receive in the name of
the Redeeming Partner.
5. To the extent OP Units are evidenced by a certificate, please issue a
new certificate of OP Unit ownership evidencing the number of OP Units owned
by the Redeeming Partner subsequent to the redemption which is the subject of
this Notice of Redemption.
6. The Redeeming Partner hereby agrees to indemnify and save the General
Partner and its Affiliates harmless from and defend it from and against any
and all demands, claims, actions, liabilities, losses, costs, damages or
expenses whatsoever (including, but not limited to, any and all expenses
whatsoever reasonably incurred in investigating, preparing or defending
against any litigation commenced or threatened or any claim whatsoever)
arising out of or based upon any inaccuracy or breach of any representation
or warranty of the Redeeming Partner contained in this Notice of Redemption.
Dated: ______________
For Corporate, Partnership, Limited For Individual Investors:
Liability Company, Trust, Employee
Benefit Plan or Other Entity Redeeming
Partner:
_______________________________ ______________________________
(Print Name of Entity) (Signature)
By: ___________________________ Print Name: ___________________
(Signature)
Print Name: ____________________
Title: _________________________
Exhibit D
to the Kramont
Partnership Agreement
Properties to Which
Section 7.1A(3)(a) Is Applicable
Property Individuals Date
Chesterbrook Shopping ▇▇▇▇ ▇. ▇▇▇▇▇ July 31, 2002
Center ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇
Woodbourne Square ▇▇▇▇ ▇▇▇▇▇ August 1, 2000
Shopping Center ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Marlton Crossing Shopping Marlton Crossing June 24, 2002
Shopping
Center Phase I Center Limited Partnership
The rights under Section 7.1A(3) and the final sentence of Section 10.1
granted to the persons listed on this Exhibit D shall terminate as to any
such person when such person no longer owns, directly or indirectly (giving
effect to the principles of section 267(c)(1) of the Code), any interest in
the Partnership.
Exhibit E
to the Kramont
Partnership Agreement
Form of Letter
Kramont Operating Partnership, L.P.
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▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Kranzco Realty Trust
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Gentlemen:
This letter is being issued pursuant to Section 8.6A(i) of the
Amended and Restated Agreement of Limited Partnership (the "Partnership
Agreement") of Kramont Operating Partnership, L.P. (the "Partnership"), dated
as of ____________, 1999, under which the General Partner of the Partnership
has consented to reduce, from one year to ___ months, the period of time
following which I, as a holder of OP Units, may elect to exercise the
Redemption right provided under Section 8.6A of the Partnership Agreement, on
condition that I provide to the Partnership, the General Partner, and their
respective Affiliates certain representations and indemnities relating to
such consent. (Unless otherwise indicated, all capitalized terms used herein
shall have the same meaning as contained in the Partnership Agreement.)
Accordingly, I hereby acknowledge that my exercise of the
Redemption Right pursuant to Section 8.6A of the Partnership Agreement is
being undertaken with full knowledge and understanding of the income tax
consequences of such exercise and that no representations or warranties have
been or are being made to me with respect to my ability to maintain my tax
basis in the property contributed by me to the Partnership or to avoid the
recognition of gain and the incurrence of tax liability in connection with
the structure or completion of any of the transactions contemplated by the
Partnership Agreement (including but not limited to the granting by the
General Partner of the consent referred to in the preceding paragraph). I
hereby agree that neither the Partnership, the General Partner, nor any of
their respective Affiliates (including the Company), nor any of their
respective general partners, limited partners, members, trustees, officers,
directors, or employees shall have any liability or obligations in connection
with any such occurrences and I hereby agree to protect, defend, indemnify,
and hold harmless each of such Persons from and against any and all claims,
demands, losses, expenses, and other damages (including without limitation
taxes, fines and penalties, legal fees, and expenses) incurred by them, or
any of them, as a result of any such liability or obligation or otherwise
arising out of the reduction of such time period or such exercise.
Very truly yours,
Exhibit F
to the Kramont
Partnership Agreement
OP UNIT DESIGNATION OF THE
CLASS A OP PREFERRED UNITS
OF KRAMONT OPERATING PARTNERSHIP, L.P.
1. NUMBER OF UNITS AND DESIGNATION.
A class of OP Preferred Units is hereby designated as "Class A OP
Preferred Units," and the number of OP Preferred Units constituting such
class shall be 11,155.
2. DEFINITIONS.
For purposes of the Class A OP Preferred Units, the following terms
shall have the meanings indicated in this Section 2, and capitalized terms
used and not otherwise defined herein shall have the meanings assigned
thereto in the Agreement:
"Agreement" shall mean the Amended and Restated Agreement of Limited
Partnership of the Partnership, dated as of June 16, 2000, as amended from
time to time.
"Class A OP Preferred Unit" means an OP Preferred Unit with the
designations, preferences and relative, participating, optional or other
special rights, powers and duties as are set forth in this Exhibit F. It is
the intention of the General Partner that each Class A OP Preferred Unit
shall be substantially the economic equivalent of one Series A Preferred
Share.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time, or any successor statute thereto. Reference to any provision of
the Code shall mean such provision as in effect from time to time, as the
same may be amended, and any successor thereto, as interpreted by any
applicable regulations or other administrative pronouncements as in effect
from time to time.
"Common Shares" shall mean the Common Shares of Beneficial Interest,
$.01 par value per share, of the General Partner.
"Distribution Payment Date" shall mean any date on which cash
distributions are paid on the Series A Preferred Shares.
"Junior OP Units" shall have the meaning set forth in paragraph (c) of
Section 8 of this Exhibit F.
"Parity OP Units" shall have the meaning set forth in paragraph (b) of
Section 8 of this Exhibit F.
"Partnership" shall mean Kramont Operating Partnership, L.P., a Delaware
limited partnership.
"Series A Preferred Shares" means the Series A-1 Increasing Rate
Cumulative Convertible Preferred Shares of Beneficial Interest, par value
$0.01 per share, of the General Partner.
"Senior OP Units" shall have the meaning set forth in paragraph (a) of
Section 8 of this Exhibit F.
3. DISTRIBUTIONS.
On every Distribution Payment Date, the General Partner as holder of
Class A OP Preferred Units shall be entitled to receive distributions payable
in cash in an amount per Class A OP Preferred Unit equal to the per share
distribution payable on the Series A Preferred Shares on such Distribution
Payment Date. No distribution or other payment with respect to redemption,
purchase or other acquisition of OP Common Units or of any other Junior OP
Units (other than distributions in OP Common Units or in any other Junior OP
Units) shall be declared or paid or set apart for payment or other
distribution upon the OP Common Units or upon any other Junior OP Units,
unless full cumulative distributions on the Class A OP Preferred Units have
been paid or declared and a sum sufficient for such full payment on the next
Distribution Payment Date set apart in trust for payment for all past
distribution periods. Each such distribution shall be payable to the General
Partner as holder of the Class A OP Preferred Units, as they appear on the
records of the Partnership at the close of business on the record date (the
"Record Date") for the distribution payable with respect to the Series A
Preferred Shares on such Distribution Payment Date. The General Partner, as
holder of Class A OP Preferred Units, shall not be entitled to any
distributions on the Class A OP Preferred Units, whether payable in cash,
property or stock, except as provided herein.
4. LIQUIDATION PREFERENCE.
(a) In the event of any liquidation, dissolution or winding up of
the affairs of the Partnership, whether voluntary or otherwise, after payment
or provision for payment of the debts and other liabilities of the
Partnership, the General Partner as holder of Class A OP Preferred Units
shall be entitled to receive, in cash, out of the remaining assets of the
Partnership legally available therefor, the amount of One Thousand Dollars
($1,000) per Class A OP Preferred Unit (the "Liquidation Preference"), plus
an amount per Class A OP Preferred Unit equal to all distributions accrued
and unpaid on each Series A Preferred Share up to the date of such
distribution of assets before any payment or distribution shall be made to
the holders of OP Common Units or any other holders of Junior OP Units. If
upon any liquidation, dissolution or winding up of the Partnership, the
assets of the Partnership, or proceeds thereof, distributable among the
General Partner as holder of Class A OP Preferred Units and holders of all
Parity OP Units shall be insufficient to pay in full the preferential amount
aforesaid and preferential amounts on any Parity OP Units, then the entire
assets of the Partnership thus distributable shall be distributed ratably
among the General Partner as holder of Class A OP Preferred Units and any
holders of such Parity OP Units in proportion to the respective amounts that
would be payable per Unit if all amounts payable thereon were paid in full.
(b) For purposes of this Section 4, a distribution of assets in
any dissolution, winding up or liquidation shall not include (i) any
consolidation or merger of the Partnership with or into any other entity,
(ii) any dissolution, liquidation, winding up or reorganization of the
Partnership immediately followed by organization of another entity to which
such assets are distributed or (iii) a sale or other disposition of all or
substantially all of the Partnership's assets to another entity; provided,
however, that, in each case, effective provision is made in the organization
documents of the resulting and surviving entity or otherwise for the
recognition, preservation and protection of the rights of the General Partner
as holder of Class A OP Preferred Units.
(c) Upon any liquidation, dissolution or winding up of the
Partnership, after the payment of the full preferential amounts set forth
herein to the General Partner as holder of Class A OP Preferred Units and any
holders of Parity OP Units, as provided in this Section 4 or funds necessary
for such payment have been set aside in trust for the holders thereof, such
holders of the Class A OP Preferred Units shall be entitled to no other or
further participation in the distribution of the assets of the Partnership.
5. REDEMPTION.
(a) At any time that the General Partner redeems any Series A
Preferred Shares for cash, the General Partner shall concurrently cause the
Partnership to redeem an equal number of Class A OP Preferred Units, at a
redemption price per Class A OP Preferred Unit payable in cash and equal to
the redemption price paid by the General Partner for such Series A Preferred
Shares.
(b) From and after any date fixed for redemption of the Class A OP
Preferred Units pursuant to paragraph (a) of this Section 5 (unless the
Partnership shall fail to make available the amount of cash necessary to
effect such redemption), (i) except for payment of the redemption price, all
distributions on the Class A OP Preferred Units so called for redemption
shall cease to accrue, (ii) said units shall no longer be deemed to be
outstanding, and (iii) all rights of the General Partner as holder of Class A
OP Preferred Units of the Partnership shall cease and terminate except the
rights to receive the cash payable upon such redemption, without interest
thereon.
6. STATUS OF REACQUIRED UNITS.
All Class A OP Preferred Units which shall have been issued and
reacquired in any manner by the Partnership shall be deemed cancelled.
7. CONVERSION.
Class A OP Preferred Units shall be convertible by the General Partner
as holder thereof as follows:
(a) Upon conversion of any number of Series A Preferred Shares
into Common Shares, an equal number of Class A OP Preferred Units shall
automatically be converted into OP Common Units. The conversion ratio in
effect from time to time for the conversion of Class A OP Preferred Units
into OP Common Units pursuant to this Section 7 shall at all times be equal
to, and shall be automatically adjusted as necessary to reflect, the
conversion ratio in effect from time to time for the conversion of Series A
Preferred Shares into Common Shares.
(b) The General Partner, as holder of Class A OP Preferred Units
shall be entitled, with respect to such Class A OP Preferred Units held, at
the close of business on a Record Date, to receive the distribution payable
on such units on the corresponding Distribution Payment Date (the period with
respect which a distribution is made on a Distribution Payment Date called
the "quarter"); provided, however, that if Class A OP Preferred Units are
converted during the period between the close of business on any Record Date
and the opening of business on the corresponding Distribution Payment Date
then the General Partner as such holder, in addition to all accrued and
unpaid distributions with respect to prior quarters, shall be entitled to
receive a pro rata portion of the distribution which would have been payable
on such converted Class A OP Preferred Units had such Units been outstanding
for the entire quarter determined by multiplying the amount of the
distribution which would have been payable on such converted Class A OP
Preferred Unit had such Units been outstanding for the entire such quarter by
a fraction the numerator of which is the number of days in the current
quarter elapsed through the day immediately preceding the date of conversion
of such converted Class A OP Preferred Units and the denominator of which is
the total number of days in the current quarter; provided, further, that the
General Partner as such converting holder will be required to pay to the
Partnership (and the Partnership shall be entitled to deduct from the pro
rata distribution which the General Partner as such holder is entitled to
receive with respect to the converted Class A OP Preferred Units for such
quarter) at the time of such conversion a pro rata portion of the
distribution which the General Partner as such converting holder is expected
to receive on the OP Common Units into which his Class A OP Preferred Units
were converted for such quarter determined by multiplying the amount of the
distribution which would have been payable on such OP Common Units for the
immediately preceding quarter by a fraction the numerator of which is the
number of days in the current quarter elapsed through the day immediately
preceding the date of conversion of such converted Class A OP Preferred Units
and the denominator of which is the total number of days in the current
quarter. In the event that the distribution on the OP Common Units for the
quarter in which the Class A OP Preferred Units are converted to OP Common
Units is less than the distribution on the OP Common Units for the
immediately preceding quarter, the Partnership will pay the General Partner
as such holder an amount equal to the difference between (i) the pro rata
portion of the distribution on the OP Common Units which the General Partner
as holder was expected to receive and which was deducted by the Partnership
pursuant to the last proviso of the preceding sentence and (ii) the pro rata
portion of the distribution on the OP Common Units which the holder actually
received.
(c) No fractional OP Common Units shall be issued upon conversion
of Class A OP Preferred Units. Instead of any fractional OP Common Units that
would otherwise be deliverable upon the conversion of Class A OP Preferred
Units, the Partnership shall pay to the General Partner as holder of such
converted units an amount in cash equal to the cash payable to a holder of an
equivalent number of converted Series A Preferred Shares in lieu of
fractional Common Shares.
(d) The Partnership will pay any and all documentary stamp, issue
or transfer taxes, and any other similar taxes, payable in respect of (i) the
issue or delivery of OP Common Units or other securities or property on
conversion or redemption of Class A OP Preferred Units pursuant hereto, and
(ii) the issue or delivery of Common Shares or other securities or property
on conversion or redemption of Series A Preferred Shares pursuant to the
terms of the General Partner's Declaration of Trust, as the same may be
amended, restated or supplemented from time to time.
8. RANKING.
Any class or series of OP Units of the Partnership shall be deemed to
rank:
(a) prior or senior to the Class A OP Preferred Units, as to the
payment of distributions or as to distributions of assets upon liquidation,
dissolution or winding up, as the case may be, if the holders of such class
or series shall be entitled to the receipt of distributions or of amounts
distributable upon liquidation, dissolution or winding up, as the case may
be, in preference or priority to the holders of Class A OP Preferred Units
("Senior OP Units");
(b) (i) on a parity with the Class A OP Preferred Units, as to the
payment of distributions and as to distribution of assets upon liquidation,
dissolution or winding up, whether or not the distribution rates,
distribution payment dates or redemption or liquidation prices per unit or
other denomination thereof be different from those of the Class A OP
Preferred Units if such class or series of OP Units shall be Class B-1 OP
Preferred Units or Class D OP Preferred Units, and (ii) on a parity with the
Class A OP Preferred Units, as to the payment of distributions or as to the
distribution of assets upon liquidation, dissolution or winding up, as the
case may be, whether or not the distribution rates, distribution payment
dates or redemption or liquidation prices per unit or other denomination
thereof be different from those of the Class A OP Preferred Units, if the
holders of such class or series of OP Units and the Class A OP Preferred
Units shall be entitled to the receipt of distributions or of amounts
distributable upon liquidation, dissolution or winding up, as the case may
be, in proportion to their respective amounts of accrued and unpaid
distributions per Unit or other denomination or liquidation preferences,
without preference or priority one over the other (the OP Units referred to
in clauses (i) and (ii) of this paragraph being hereinafter referred to,
collectively, as "Parity OP Units"); and
(c) (i) junior to the Class A OP Preferred Units, as to the
payment of distributions and as to the distribution of assets upon
liquidation, dissolution or winding up, if such class or series of OP Units
shall be OP Common Units and (ii) junior to the Class A OP Preferred Units,
as to the payment of distributions or as to the distribution of assets upon
liquidation, dissolution or winding up, as the case may be, the General
Partner as holder of Class A OP Preferred Units shall be entitled to receipt
of distributions or of amounts distributable upon liquidation, dissolution or
winding up, as the case may be, in preference or priority to the holders of
such class or series of OP Units (the OP Units referred to in clauses (i) and
(ii) of this paragraph being hereinafter referred to, collectively, as
"Junior OP Units").
9. SPECIAL ALLOCATIONS.
(a) Gross income and, if necessary, gain shall be allocated to the
General Partner as holder of Class A OP Preferred Units for any Fiscal Year
(and, if necessary, subsequent Fiscal Years) to the extent that the General
Partner as holder of Class A OP Preferred Units receive distributions on any
Class A OP Preferred Units (other than an amount included in any redemption
pursuant to Sections 4 or 5 hereof) with respect to such Fiscal Year
(including distributions received after the end of such Fiscal Year but are
made with respect to such Fiscal Year).
(b) If any Class A OP Preferred Units are redeemed pursuant to
Sections 4 or 5 hereof, for the Fiscal Year that includes such redemption
(and, if necessary, for subsequent Fiscal Years) (a) gross income and gain
(in such relative proportions as the General Partner in its discretion shall
determine) shall be allocated to the General Partner as holder of Class A OP
Preferred Units to the extent that the redemption amounts paid or payable
with respect to such Class A OP Preferred Units so redeemed exceeds the
aggregate Capital Account balance allocable to the Class A OP Preferred Units
so redeemed and (b) deductions and losses (in such relative proportions as
the General Partner in its discretion shall determine) shall be allocated to
the General Partner as holder of Class A OP Preferred Units to the extent
that the aggregate Capital Account balance allocable to the Class A OP
Preferred Units so redeemed exceeds the redemption amount paid or payable
with respect to the Class A OP Preferred Units so redeemed. The Capital
Account balance of the General Partner as holder of Class A OP Preferred
Units shall be determined solely with respect to Class A OP Preferred Units
immediately prior to the redemption and after taking into account all other
allocations of Net Income and Net Loss and distributions.
10. RESTRICTIONS ON OWNERSHIP.
The Class A OP Preferred Units shall be owned and held solely by the
General Partner but may be transferred to a successor General Partner.
11. VOTING RIGHTS.
The General Partner, as holder of Class A OP Preferred Units, shall not
be entitled to vote on any matters.
12. GENERAL.
(a) The ownership of Class A OP Preferred Units may (but need not,
in the sole and absolute discretion of the General Partner) be evidenced by
one or more certificates. The General Partner shall amend Exhibit A to the
Agreement from time to time to the extent necessary to reflect accurately the
issuance of, and subsequent conversion, redemption, or any other event having
an effect on the ownership of, Class A OP Preferred Units.
(b) The rights of the General Partner in its capacity as holder of
the Class A OP Preferred Units, are in addition to and not in limitation of
any other rights or authority of the General Partner in any other capacity
under the Agreement or applicable law. In addition, nothing contained herein
shall be deemed to limit or otherwise restrict the authority of the General
Partner under the Agreement, other than in its capacity as holder of the
Class A OP Preferred Units.
Exhibit G
to the Kramont
Partnership Agreement
OP UNIT DESIGNATION OF THE
CLASS B-1 OP PREFERRED UNITS
OF KRAMONT OPERATING PARTNERSHIP, L.P.
1. NUMBER OF UNITS AND DESIGNATION.
A class of OP Preferred Units is hereby designated as "Class B-1 OP
Preferred Units," and the number of OP Preferred Units constituting such
class shall be 1,235,000.
2. DEFINITIONS.
For purposes of the Class B-1 OP Preferred Units, the following terms
shall have the meanings indicated in this Section 2, and capitalized terms
used and not otherwise defined herein shall have the meanings assigned
thereto in the Agreement:
"Agreement" shall mean the Amended and Restated Agreement of Limited
Partnership of the Partnership, dated as of June 16, 2000, as amended from
time to time.
"Class B-1 OP Preferred Unit" means an OP Preferred Unit with the
designations, preferences and relative, participating, optional or other
special rights, powers and duties as are set forth in this Exhibit G. It is
the intention of the General Partner that each Class B-1 OP Preferred Unit
shall be substantially the economic equivalent of one Series B-1 Preferred
Share.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time, or any successor statute thereto. Reference to any provision of
the Code shall mean such provision as in effect from time to time, as the
same may be amended, and any successor thereto, as interpreted by any
applicable regulations or other administrative pronouncements as in effect
from time to time.
"Common Shares" shall mean the Common Shares of Beneficial Interest,
$.01 par value per share, of the General Partner.
"Distribution Payment Date" shall mean any date on which cash
distributions are paid on the Series B-1 Preferred Shares.
"Distribution Period" shall mean each quarterly period from and
including any Distribution Payment Date (or from ________, 2000 if there has
been no Distribution Payment Date since the date of the Agreement) to, but
not including, the next Distribution Date.
"Junior OP Units" shall have the meaning set forth in paragraph (c) of
Section 8 of this Exhibit G.
"Parity OP Units" shall have the meaning set forth in paragraph (b) of
Section 8 of this Exhibit G.
"Partnership" shall mean Kramont Operating Partnership, L.P., a Delaware
limited partnership.
"Series B-1 Preferred Shares" means the 9.75% Series B-1 Cumulative
Convertible Preferred Shares of Beneficial Interest, par value $0.01 per
share, of the General Partner.
"Senior OP Units" shall have the meaning set forth in paragraph (a) of
Section 8 of this Exhibit G.
3. DISTRIBUTIONS.
(a) On every Distribution Payment Date, the General Partner as
holder of Class B-1 OP Preferred Units shall be entitled to receive
distributions payable in cash in an amount per Class B-1 OP Preferred Unit
equal to the per share distribution payable on the Series B-1 Preferred
Shares on such Distribution Payment Date. Except as provided in the next
sentence, if any Class B-1 OP Preferred Units are outstanding, no
distributions (other than in Junior OP Units or OP Common Units) shall be
authorized, declared, set apart for payment or paid on any class or series of
Junior OP Units or Parity OP Units unless all accrued distributions on the
Class B-1 OP Preferred Units for all prior Distribution Periods and the then
current Distribution Period have been or contemporaneously are authorized,
declared, set apart for payment or paid. When distributions are not so paid
in full (or a sum sufficient for such full payment is not so set apart for
payment) upon the Class B-1 OP Preferred Units and any other class or series
of Parity OP Units, all distributions authorized or declared upon the Class
B-1 OP Preferred Units and any such class or series of Parity OP Units shall
be authorized or declared pro rata so that the amount of distributions
authorized or declared per Unit on the Class B-1 OP Preferred Units and such
class or series of Parity OP Units shall in all areas bear to each other the
same ratio that accrued and unpaid distributions per Unit on the Class B-1 OP
Preferred Units and such class or series of Parity OP Units bear to each
other. Each such distribution shall be payable to the General Partner as
holder of the Class B-1 OP Preferred Units, as they appear on the records of
the Partnership at the close of business on the record date (the "Record
Date") for the distribution payable with respect to the Series B-1 Preferred
Shares on such Distribution Payment Date. The General Partner as holder of
Class B-1 OP Preferred Units, shall not be entitled to any distributions on
the Class B-1 OP Preferred Units, whether payable in cash, property or stock,
except as provided herein.
(b) Except as provided in Section 3(a) hereof, unless all accrued
distributions on the Class B-1 OP Preferred Units have been or
contemporaneously are authorized, declared, set apart for payment or paid for
all prior Distribution Periods and the then current Distribution Period, no
Junior OP Units or Parity OP Units shall be redeemed, purchased or otherwise
acquired for any consideration (or any moneys be paid to or made available
for a sinking fund for the redemption of any such Units) by the Partnership
(except by conversion into or exchange for Junior OP Units or OP Common
Units).
4. LIQUIDATION PREFERENCE.
(a) Upon any voluntary or involuntary liquidation, dissolution or
winding up of the affairs of the Partnership, before any distribution shall
be made to the holders of any Junior OP Units, and subject to the payment or
provision or reserve for payment of the debts and liabilities (whether
absolute, accrued, asserted or unasserted, contingent or otherwise) and the
preferences of Senior OP Units, if any, of the Partnership, the General
Partner as holder of Class B-1 OP Preferred Units shall be entitled to
receive, out of the assets of the Partnership legally available for payment
of distributions, liquidating distributions in cash (or property at its fair
market value as determined in good faith by the General Partner (or a
combination thereof)), in the amount of Twenty-five Dollars ($25.00) per
Class B-1 OP Preferred Unit (the "Liquidation Preference"), plus an amount
per Class B-1 OP Preferred Unit equal to all distributions accrued and unpaid
(whether or not authorized or declared, and whether or not there would be
assets legally available for the payment of such distribution) to the date of
such liquidation, dissolution or winding up. After the payment of the full
amount of liquidating distributions to which they are entitled as provided
herein in this Section 4(a), the General Partner as holder of Class B-1 OP
Preferred Units will have no right or claim to any of the remaining assets of
the Partnership and shall not be entitled to any other distribution.
(b) Notwithstanding the provisions of Section 4(a) hereof, in the
event that, upon any voluntary or involuntary liquidation, dissolution or
winding up of the Partnership, the assets legally available for payment of
distributions are insufficient to pay (x) the full amount of the liquidating
distributions to which the General Partner as holder of Class B-1 OP
Preferred Units would otherwise be entitled pursuant to Section 4(a) hereof
and (y) the corresponding amounts of the liquidating distributions to which
holders of Parity OP Units would be entitled upon liquidation, dissolution or
winding up of the affairs of the Partnership, then the General Partner as
holder of the Class B-1 OP Preferred Units and the holders of the Parity OP
Units shall share ratably in any such distribution of assets in proportion to
the full liquidating distributions to which they otherwise would be
respectively entitled.
5. REDEMPTION.
(a) At any time that the General Partner redeems any Series B-1
Preferred Shares for cash, the General Partner shall concurrently cause the
Partnership to redeem an equal number of Class B-1 OP Preferred Units, at a
redemption price per Class B-1 OP Preferred Unit payable in cash and equal to
the redemption price paid by the General Partner for such Series B-1
Preferred Shares.
(b) From and after any date fixed for redemption of the Class B-1
OP Preferred Units pursuant to paragraph (a) of this Section 5 (unless the
Partnership shall fail to make available the amount of cash necessary to
effect such redemption), (i) except for payment of the redemption price, all
distributions on the Class B-1 OP Preferred Units so called for redemption
shall cease to accrue, (ii) said units shall no longer be deemed to be
outstanding, and (iii) all rights of the General Partner as holder of Class
B-1 OP Preferred Units of the Partnership shall cease and terminate except
the rights to receive the cash payable upon such redemption, without interest
thereon.
6. STATUS OF REACQUIRED UNITS.
All Class B-1 OP Preferred Units which shall have been issued and
reacquired in any manner by the Partnership shall be deemed cancelled.
7. CONVERSION.
Class B-1 OP Preferred Units shall be convertible by the General Partner
as holder thereof as follows:
(a) Upon conversion of any number of Series B-1 Preferred Shares
into Common Shares, an equal number of Class B-1 OP Preferred Units shall
automatically be converted into OP Common Units. The conversion ratio in
effect from time to time for the conversion of Class B-1 OP Preferred Units
into OP Common Units pursuant to this Section 7 shall at all times be equal
to, and shall be automatically adjusted as necessary to reflect, the
conversion ratio in effect from time to time for the conversion of Series B-1
Preferred Shares into Common Shares.
(b) Notwithstanding the conversion of Class B-1 OP Preferred Units
into OP Common Units, all accrued distributions with respect to such Class B-
1 OP Preferred Units for any past Distribution Periods that are in arrears at
the time of such conversion shall be paid to the General Partner as holder of
such Class B-1 OP Preferred Units in the same manner as if the General
Partner continued to be the holder of such converted Class B-1 OP Preferred
Units following such conversion or, if upon conversion of such Class B-1 OP
Preferred Units there will be no more Class B-1 OP Preferred Units
outstanding, then at the time of such conversion. In addition, upon the
conversion of Class B-1 OP Preferred Units into OP Common Units, the General
Partner as holder of such converted Class B-1 OP Preferred Units shall be
entitled to receive a distribution on such Class B-1 OP Preferred Units
converted for the portion of the current Distribution Period such holder
owned the Class B-1 OP Preferred Units surrendered for conversion,
notwithstanding that the record date for the distribution payable for the
current Distribution Period may not have occurred, in an amount per Class B-1
OP Preferred Unit converted equal to the product of (i) the distribution
payable on each Class B-1 OP Preferred Unit converted for the current
Distribution Period, multiplied by (ii) a fraction, the numerator of which is
the number of calendar days in such Distribution Period elapsed to (but not
including) the date of conversion and the denominator of which is the total
number of calendar days in such Distribution Period.
If upon conversion of Class B-1 OP Preferred Units into OP Common
Units and as a result thereof the General Partner as holder of such converted
Class B-1 OP Preferred Units is or will be entitled to receive distributions
with respect to both such Class B-1 OP Preferred Units converted and such OP
Common Units into which such Class B-1 OP Preferred Units were converted for
the same period of time (the "Overlapping Period"), then, at the time of and
as a condition precedent to such conversion (or, if at the time of such
conversion the amount of the distribution with respect to such OP Common
Units has not yet been determined, at the time of such determination), the
Partnership shall withhold from any distribution payable on such Class B-1 OP
Preferred Units converted, an amount equal to the Excess Amount (defined
below), if any. If the amount of any distribution payable on such Class B-1
OP Preferred Units converted shall not be sufficient to pay any Excess
Amount, such holder hereby authorizes the Partnership to withhold from any
distribution payable to such holder on any Class B-1 OP Preferred Units owned
by such holder or, to the extent permissible, on any OP Common Units owned by
such holder, an amount equal to the Excess Amount. "Excess Amount" shall
mean an amount equal to the product of (i) the sum of the distributions
payable on each OP Common Unit into which such Class B-1 OP Preferred Units
were converted for the distribution period relating to the OP Common Units in
which the Overlapping Period occurs, multiplied by (ii) a fraction, the
numerator of which is the number of calendar days in the Overlapping Period
and the denominator of which is the total number of calendar days in such
distribution period relating to the OP Common Units in which the Overlapping
Period occurs.
(c) No fractional OP Common Unit or scrip representing a
fractional OP Common Unit shall be issued upon conversion of Class B-1 OP
Preferred Units. Instead of any fractional OP Common Units which would
otherwise be issuable upon the conversion of Class B-1 OP Preferred Units,
the Partnership shall pay to the General Partner as holder of such converted
units an amount in cash equal to the cash payable to a holder of an
equivalent number of converted Series B-1 Preferred Shares in lieu of
fractional Common Shares.
(d) The Partnership will pay, at the time of and as a condition
precedent to conversion, any documentary, stamp, or similar issue or transfer
tax due on the issuance of OP Common Units upon conversion. The holder,
however, shall pay to the Partnership the amount of any tax which is due (or
shall establish to the satisfaction of the Partnership payment thereof) if
the Units are to be issued in a name other than the name of the person in
whose name such Class B-1 OP Preferred Units are registered.
8. RANKING.
Any class or series of OP Units of the Partnership shall be deemed to
rank:
(a) prior or senior to the Class B-1 OP Preferred Units, as to the
payment of distributions or as to distributions of assets upon liquidation,
dissolution or winding up, as the case may be, if the holders of such class
or series shall be entitled to the receipt of distributions or of amounts
distributable upon liquidation, dissolution or winding up, as the case may
be, in preference or priority to the holders of Class B-1 OP Preferred Units
("Senior OP Units");
(b) (i) on a parity with the Class B-1 OP Preferred Units, as to
the payment of distributions and as to distribution of assets upon
liquidation, dissolution or winding up, whether or not the distribution
rates, distribution payment dates or redemption or liquidation prices per
unit or other denomination thereof be different from those of the Class B-1
OP Preferred Units if such class or series of OP Units shall be Class A OP
Preferred Units or Class D OP Preferred Units, and (ii) on a parity with the
Class B-1 OP Preferred Units, as to the payment of distributions or as to the
distribution of assets upon liquidation, dissolution or winding up, as the
case may be, whether or not the distribution rates, distribution payment
dates or redemption or liquidation prices per unit or other denomination
thereof be different from those of the Class B-1 OP Preferred Units if the
holders of such class or series of OP Units and the Class B-1 OP Preferred
Units shall be entitled to the receipt of distributions or of amounts
distributable upon liquidation, dissolution or winding up, as the case may
be, in proportion to their respective amounts of accrued and unpaid
distributions per Unit or other denomination or liquidation preferences,
without preference or priority one over the other (the OP Units referred to
in clauses (i) and (ii) of this paragraph being hereinafter referred to,
collectively, as "Parity OP Units"); and
(c) (i) junior to the Class B-1 OP Preferred Units, as to the
payment of distributions and as to the distribution of assets upon
liquidation, dissolution or winding up, if such class or series of OP Units
shall be OP Common Units and (ii) junior to the Class B-1 OP Preferred Units,
as to the payment of distributions or as to the distribution of assets upon
liquidation, dissolution or winding up, as the case may be, if the holders of
Class B-1 OP Preferred Units shall be entitled to receipt of distributions or
of amounts distributable upon liquidation, dissolution or winding up, as the
case may be, in preference or priority to the holders of such class or series
of OP Units (the OP Units referred to in clauses (i) and (ii) of this
paragraph being hereinafter referred to, collectively, as "Junior OP Units").
9. SPECIAL ALLOCATIONS.
(a) Gross income and, if necessary, gain shall be allocated to the
General Partner as holder of Class B-1 OP Preferred Units for any Fiscal Year
(and, if necessary, subsequent Fiscal Years) to the extent that the General
Partner as holder of Class B-1 OP Preferred Units receive distributions on
any Class B-1 OP Preferred Units (other than an amount included in any
redemption pursuant to Sections 4 or 5 hereof) with respect to such Fiscal
Year (including distributions received after the end of such Fiscal Year but
which are made with respect to such Fiscal Year).
(b) If any Class B-1 OP Preferred Units are redeemed pursuant to
Sections 4 or 5 hereof, for the Fiscal Year that includes such redemption
(and, if necessary, for subsequent Fiscal Years) (a) gross income and gain
(in such relative proportions as the General Partner in its discretion shall
determine) shall be allocated to the General Partner as holder of Class B-1
OP Preferred Units to the extent that the redemption amounts paid or payable
with respect to such Class B-1 OP Preferred Units so redeemed exceeds the
aggregate Capital Account balance allocable to the Class B-1 OP Preferred
Units so redeemed and (b) deductions and losses (in such relative proportions
as the General Partner in its discretion shall determine) shall be allocated
to the General Partner as holder of Class B-1 OP Preferred Units to the
extent that the aggregate Capital Account balance allocable to the Class B-1
OP Preferred Units so redeemed exceeds the redemption amount paid or payable
with respect to the Class B-1 OP Preferred Units so redeemed. The Capital
Account balance of the General Partner as holder of Class B-1 OP Preferred
Units shall be determined solely with respect to Class B-1 OP Preferred Units
immediately prior to the redemption and after taking into account all other
allocations of Net Income and Net Loss and distributions.
10. RESTRICTIONS ON OWNERSHIP.
The Class B-1 OP Preferred Units shall be owned and held solely by the
General Partner but may be transferred to a successor General Partner.
11. VOTING RIGHTS.
The General Partner, as holder of Class B-1 OP Preferred Units, shall
not be entitled to vote on any matters.
12. GENERAL.
(a) The ownership of Class B-1 OP Preferred Units may (but need
not, in the sole and absolute discretion of the General Partner) be evidenced
by one or more certificates. The General Partner shall amend Exhibit A to the
Agreement from time to time to the extent necessary to reflect accurately the
issuance of, and subsequent conversion, redemption, or any other event having
an effect on the ownership of, Class B-1 OP Preferred Units.
(b) The rights of the General Partner in its capacity as holder of
the Class B-1 OP Preferred Units, are in addition to and not in limitation of
any other rights or authority of the General Partner in any other capacity
under the Agreement or applicable law. In addition, nothing contained herein
shall be deemed to limit or otherwise restrict the authority of the General
Partner under the Agreement, other than in its capacity as holder of the
Class B-1 OP Preferred Units.
Exhibit H
to the Kramont
Partnership Agreement
OP UNIT DESIGNATION OF THE
CLASS D OP PREFERRED UNITS
OF KRAMONT OPERATING PARTNERSHIP, L.P.
1. NUMBER OF UNITS AND DESIGNATION.
A class of OP Preferred Units is hereby designated as "Class D OP
Preferred Units," and the number of OP Preferred Units constituting such
class shall be 2,070,000.
2. DEFINITIONS.
For purposes of the Class D OP Preferred Units, the following terms
shall have the meanings indicated in this Section 2, and capitalized terms
used and not otherwise defined herein shall have the meanings assigned
thereto in the Agreement:
"Agreement" shall mean the Amended and Restated Agreement of Limited
Partnership of the Partnership, dated as of June 16, 2000, as amended from
time to time.
"Class D OP Preferred Unit" means an OP Preferred Unit with the
designations, preferences and relative, participating, optional or other
special rights, powers and duties as are set forth in this Exhibit H. It is
the intention of the General Partner that each Class D OP Preferred Unit
shall be substantially the economic equivalent of one Series D Preferred
Share.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time, or any successor statute thereto. Reference to any provision of
the Code shall mean such provision as in effect from time to time, as the
same may be amended, and any successor thereto, as interpreted by any
applicable regulations or other administrative pronouncements as in effect
from time to time.
"Common Shares" shall mean the Common Shares of Beneficial Interest,
$.01 par value per share, of the General Partner.
"Distribution Payment Date" shall mean any date on which cash
distributions are paid on the Series D Preferred Shares.
"Distribution Period" shall mean each quarterly period from and
including any Distribution Payment Date (or from ________, 2000 if there has
been no Distribution Payment Date since the date of the Agreement) to, but
not including, the next Distribution Date.
"Junior OP Units" shall have the meaning set forth in paragraph (c) of
Section 7 of this Exhibit H.
"Parity OP Units" shall have the meaning set forth in paragraph (b) of
Section 7 of this Exhibit H.
"Partnership" shall mean Kramont Operating Partnership, L.P., a Delaware
limited partnership.
"Series D Preferred Shares" means the Series D Cumulative Redeemable
Preferred Shares of Beneficial Interest, par value $0.01 per share, of the
General Partner.
"Senior OP Units" shall have the meaning set forth in paragraph (a) of
Section 7 of this Exhibit H.
3. DISTRIBUTIONS.
(a) On every Distribution Payment Date, the General Partner as
holder of Class D OP Preferred Units shall be entitled to receive
distributions payable in cash in an amount per Class D OP Preferred Unit
equal to the per share distribution payable on the Series D Preferred Shares
on such Distribution Payment Date. Each such distribution shall be payable
to the General Partner as holder of the Class D OP Preferred Units, as they
appear on the records of the Partnership at the close of business on the
record date (the "Record Date") for the distribution payable with respect to
the Series D Preferred Shares on such Distribution Payment Date. The General
Partner, as holder of Class D OP Preferred Units, shall not be entitled to
any distributions on the Class D OP Preferred Units, whether payable in cash,
property or stock, except as provided herein.
(b) If any Class D OP Preferred Units are outstanding, no
distributions shall be authorized or paid or set apart for payment on any
other class or series of Junior OP Units or Parity OP Units for any period
unless full cumulative distributions have been or contemporaneously are
authorized and paid or authorized and a sum sufficient for the payment
thereof set apart for such payment on the Class D OP Preferred Units for all
past Distribution Periods and the then current Distribution Period. When
distributions are not so paid in full (or a sum sufficient for such full
payment is not so set apart) upon the Class D OP Preferred Units and any
other class or series of Parity OP Units, all distributions authorized or
declared upon the Class D OP Preferred Units and any such class or series of
Parity OP Units shall be authorized pro rata so that the amount of
distributions authorized per Unit on the Class D OP Preferred Units and such
class or series of Parity OP Units shall in all cases bear to each other the
same ratio that accrued and unpaid distributions per Unit on the Class D OP
Preferred Units and such class or series of Parity OP Units bear to each
other.
(c) Except as provided in Section 3(b) hereof, unless full
cumulative distributions on the Class D OP Preferred Units have been or
contemporaneously are authorized and paid or authorized and a sum sufficient
for the payment therefor set apart for payment for all past Distribution
Periods and the then current Distribution Period, no distributions (other
than in Junior OP Units) shall be authorized or paid or set apart for payment
or other distribution shall be authorized or made upon any Junior OP Units or
Parity OP Units nor shall any Junior OP Units or Parity OP Units be redeemed,
purchased or otherwise acquired for any consideration (or any moneys be paid
to or made available for a sinking fund for the redemption of any such Units)
by the Partnership (except by conversion into or exchange for Junior OP
Units).
4. LIQUIDATION PREFERENCE.
(a) Upon any voluntary or involuntary liquidation, dissolution or
winding up of the affairs of the Partnership, subject to the prior
preferences and other rights of any Senior OP Units as to liquidation
preferences, but before any distribution shall be made to the holders of any
Junior OP Units as to the distribution of assets upon any liquidation,
dissolution or winding up of the affairs of the Partnership, the holders of
Class D OP Preferred Units shall be entitled to receive, out of the assets of
the Partnership legally available for distribution to its partners,
liquidating distributions in cash or property at its fair market value as
determined by the General Partner in the amount of Twenty-Five Dollars
($25.00) per Class D OP Preferred Unit (the "Liquidation Preference"), plus
an amount per Class D OP Preferred Unit equal to all distributions accrued
and unpaid thereon (whether or not declared) to the date of such liquidation,
dissolution or winding up. After payment of the full amount of the
liquidating distributions to which they are entitled, the General Partner as
holder of Class D OP Preferred Units will have no right or claim to any of
the remaining assets of the Partnership and shall not be entitled to any
other distribution in the event of liquidation, dissolution or winding up of
the affairs of the Partnership.
(b) In the event that, upon any such voluntary or involuntary
liquidation, dissolution or winding up of the Partnership, the legally
available assets of the Partnership are insufficient to pay in full the
amount of the Liquidation Preference per Unit of Class D OP Preferred Units
plus an amount equal to all distributions accrued and unpaid on the Class D
OP Preferred Units and the corresponding amounts payable on all Parity OP
Units as to the distribution of assets upon liquidation, dissolution or
winding up, then the General Partner as holder of the Class D OP Preferred
Units and holders of all such Parity OP Units shall share ratably in any such
distribution of assets in proportion to the full liquidating distributions to
which they would otherwise be respectively entitled.
(c) Neither the consolidation or merger of the Partnership into or
with another entity nor the dissolution, liquidation, winding up or
reorganization of the Partnership immediately followed by organization of
another entity to which such assets are distributed nor the sale, lease,
transfer or conveyance of all or substantially all of the Partnership's
assets to another entity shall be deemed a liquidation, dissolution or
winding up of the affairs of the Partnership within the meaning of this
Section 4; provided, however, that, in each case, effective provision is made
in the organization documents of the resulting and surviving entity or
otherwise for the recognition, preservation and protection of the rights of
the General Partner as holder of Class D OP Preferred Units.
5. REDEMPTION.
(a) At any time that the General Partner redeems any Series D
Preferred Shares for cash, the General Partner shall concurrently cause the
Partnership to redeem an equal number of Class D OP Preferred Units, at a
redemption price per Class D OP Preferred Unit payable in cash and equal to
the redemption price paid by the General Partner for such Series D Preferred
Shares.
(b) From and after any date fixed for redemption of the Class D OP
Preferred Units pursuant to paragraph (a) of this Section 5 (unless the
Partnership shall fail to make available the amount of cash necessary to
effect such redemption), (i) except for payment of the redemption price, all
distributions on the Class D OP Preferred Units so called for redemption
shall cease to accrue, (ii) said units shall no longer be deemed to be
outstanding, and (iii) all rights of the General Partner as holder of Class D
OP Preferred Units of the Partnership shall cease and terminate except the
rights to receive the cash payable upon such redemption, without interest
thereon.
6. STATUS OF REACQUIRED UNITS.
All Class D OP Preferred Units which shall have been issued and
reacquired in any manner by the Partnership shall be deemed cancelled.
7. RANKING.
Any class or series of OP Units of the Partnership shall be deemed to
rank:
(a) prior or senior to the Class D OP Preferred Units, as to the
payment of distributions or as to distributions of assets upon liquidation,
dissolution or winding up, as the case may be, if the holders of such class
or series shall be entitled to the receipt of distributions or of amounts
distributable upon liquidation, dissolution or winding up, as the case may
be, in preference or priority to the holders of Class D OP Preferred Units
("Senior OP Units");
(b) (i) on a parity with the Class D OP Preferred Units, as to the
payment of distributions and as to distribution of assets upon liquidation,
dissolution or winding up, whether or not the distribution rates,
distribution payment dates or redemption or liquidation prices per unit or
other denomination thereof be different from those of the Class D OP
Preferred Units if such class or series of OP Units shall be Class A OP
Preferred Units or Class B-1 OP Preferred Units, and (ii) on a parity with
the Class D OP Preferred Units, as to payment of distributions or as to the
distribution of assets upon liquidation, dissolution or winding up, as the
case may be, whether or not the distribution rates, distribution payment
dates or redemption or liquidation prices per unit or other denomination
thereof be different from those of the Class D OP Preferred Units if the
holders of such class or series of OP Units and the Class D OP Preferred
Units shall be entitled to the receipt of distributions or of amounts
distributable upon liquidation, dissolution or winding up, as the case may
be, in proportion to their respective amounts of accrued and unpaid
distributions per Unit or other denomination or liquidation preferences,
without preference or priority one over the other (the OP Units referred to
in clauses (i) and (ii) of this paragraph being hereinafter referred to,
collectively, as "Parity OP Units"); and
(c) (i) junior to the Class D OP Preferred Units, as to the
payment of distributions and as to the distribution of assets upon
liquidation, dissolution or winding up, if such class or series of OP Units
shall be OP Common Units and (ii) junior to the Class D OP Preferred Units,
as to the payment of distribution or as to the distribution of assets upon
liquidation, dissolution or winding up, as the case may be, if the holders of
Class D OP Preferred Units shall be entitled to receipt of distributions or
of amounts distributable upon liquidation, dissolution or winding up, as the
case may be, in preference or priority to the holders of such class or series
of OP Units (the OP Units referred to in clauses (i) and (ii) of this
paragraph being hereinafter referred to, collectively, as "Junior OP Units").
8. SPECIAL ALLOCATIONS.
(a) Gross income and, if necessary, gain shall be allocated to the
General Partner as holder of Class D OP Preferred Units for any Fiscal Year
(and, if necessary, subsequent Fiscal Years) to the extent that the General
Partner as holder of Class D OP Preferred Units receive distributions on any
Class D OP Preferred Units (other than an amount included in any redemption
pursuant to Sections 4 or 5 hereof) with respect to such Fiscal Year
(including distributions received after the end of such Fiscal Year but are
made with respect to such Fiscal Year).
(b) If any Class D OP Preferred Units are redeemed pursuant to
Sections 4 or 5 hereof, for the Fiscal Year that includes such redemption
(and, if necessary, for subsequent Fiscal Years) (a) gross income and gain
(in such relative proportions as the General Partner in its discretion shall
determine) shall be allocated to the General Partner as holder of Class D OP
Preferred Units to the extent that the redemption amounts paid or payable
with respect to such Class D OP Preferred Units so redeemed exceeds the
aggregate Capital Account balance allocable to the Class D OP Preferred Units
so redeemed and (b) deductions and losses (in such relative proportions as
the General Partner in its discretion shall determine) shall be allocated to
the General Partner as holder of Class D OP Preferred Units to the extent
that the aggregate Capital Account balance allocable to the Class D OP
Preferred Units so redeemed exceeds the redemption amount paid or payable
with respect to the Class D OP Preferred Units so redeemed. The Capital
Account balance of the General Partner as holder of Class D OP Preferred
Units shall be determined solely with respect to Class D OP Preferred Units
immediately prior to the redemption and after taking into account all other
allocations of Net Income and Net Loss and distributions.
9. RESTRICTIONS ON OWNERSHIP.
The Class D OP Preferred Units shall be owned and held solely by the
General Partner but may be transferred to a successor General Partner.
10. VOTING RIGHTS.
The General Partner, as holder of Class D OP Preferred Units, shall not
be entitled to vote on any matters.
11. GENERAL.
(a) The ownership of Class D OP Preferred Units may (but need not,
in the sole and absolute discretion of the General Partner) be evidenced by
one or more certificates. The General Partner shall amend Exhibit A to the
Agreement from time to time to the extent necessary to reflect accurately the
issuance of, and subsequent conversion, redemption, or any other event having
an effect on the ownership of, Class D OP Preferred Units.
(b) The rights of the General Partner in its capacity as holder of
the Class D OP Preferred Units, are in addition to and not in limitation of
any other rights or authority of the General Partner in any other capacity
under the Agreement or applicable law. In addition, nothing contained herein
shall be deemed to limit or otherwise restrict the authority of the General
Partner under the Agreement, other than in its capacity as holder of the
Class D OP Preferred Units.
Exhibit I
to the Kramont
Partnership Agreement
Limited Partners
Exhibit J
to the Kramont
Partnership Agreement
Florida Land
PROPERTY
1. Century Village Administration Building
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2. The Land of the Presidents
West Palm Beach, Florida
3. Village ▇▇▇▇▇▇
▇▇▇▇▇▇▇ Road
Dania Beach, Florida
4. 2 parcels located at the
intersection of Palm Avenue
and Miramar Boulevard
Miramar, Florida
5. Mobil Station
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6. Partnership interests in Partnerships owning:
(a) Warehouse
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(b) Warehouse
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(c) Warehouse
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