Exhibit 10.72
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SECOND AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
▇▇▇▇▇▇▇▇▇▇ ▇▇ REALTY L.P.
June 16, 2000
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TABLE OF CONTENTS
Page
ARTICLE 1 Defined Terms. . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE 2 Organizational Matters . . . . . . . . . . . . . . . . . . . . .14
2.1 Continuation . . . . . . . . . . . . . . . . . . . . . . . . . .14
2.2 Name . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14
2.3 Registered Office and Agent; Principal Office. . . . . . . . . .14
2.4 Power of Attorney. . . . . . . . . . . . . . . . . . . . . . . .15
2.5 Term . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16
ARTICLE 3 Purpose. . . . . . . . . . . . . . . . . . . . . . . . . . . . .16
3.1 Purpose and Business . . . . . . . . . . . . . . . . . . . . . .16
3.2 Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17
ARTICLE 4 Capital Contributions. . . . . . . . . . . . . . . . . . . . . .17
4.1 Capital Contributions of the Partners. . . . . . . . . . . . . .17
4.2 Additional Funds . . . . . . . . . . . . . . . . . . . . . . . .20
4.3 Issuance of Additional Partnership Interests;
Admission of Additional Limited Partners . . . . . . . . . . . .21
4.4 Repurchase of Shares; Excess Shares. . . . . . . . . . . . . . .22
4.5 No Third Party Beneficiary . . . . . . . . . . . . . . . . . . .22
4.6 No Interest; No Return . . . . . . . . . . . . . . . . . . . . .23
4.7 No Preemptive Rights . . . . . . . . . . . . . . . . . . . . . .23
ARTICLE 5 Distributions. . . . . . . . . . . . . . . . . . . . . . . . . .23
5.1 Regular Distributions. . . . . . . . . . . . . . . . . . . . . .23
5.2 Qualification as a REIT. . . . . . . . . . . . . . . . . . . . .23
5.3 Withholding. . . . . . . . . . . . . . . . . . . . . . . . . . .23
5.4 Additional Partnership Interests . . . . . . . . . . . . . . . .24
5.5 Distributions Upon Liquidation . . . . . . . . . . . . . . . . .24
ARTICLE 6 Allocations. . . . . . . . . . . . . . . . . . . . . . . . . . .24
ARTICLE 7 Management and Operations of Business. . . . . . . . . . . . . .24
7.1 Management . . . . . . . . . . . . . . . . . . . . . . . . . . .24
7.2 Certificate of Limited Partnership . . . . . . . . . . . . . . .29
7.3 Reimbursement of the General Partner's Allocable Expenses. . . .29
7.4 Outside Activities of the General Partner. . . . . . . . . . . .30
7.5 Contracts with Affiliates. . . . . . . . . . . . . . . . . . . .30
7.6 Indemnification. . . . . . . . . . . . . . . . . . . . . . . . .31
7.7 Liability of the General Partner . . . . . . . . . . . . . . . .33
7.8 Other Matters Concerning the General Partner . . . . . . . . . .33
7.9 Title to Partnership Assets. . . . . . . . . . . . . . . . . . .34
7.10 Reliance by Third Parties. . . . . . . . . . . . . . . . . . . .35
ARTICLE 8 Rights and Obligations of Limited Partners . . . . . . . . . . .35
8.1 Limitation of Liability. . . . . . . . . . . . . . . . . . . . .35
8.2 Management of Business . . . . . . . . . . . . . . . . . . . . .35
8.3 Outside Activities of Limited Partners . . . . . . . . . . . . .35
8.4 Return of Capital. . . . . . . . . . . . . . . . . . . . . . . .36
8.5 Rights of Limited Partners Relating to the Partnership . . . . .36
8.6 Redemption Rights. . . . . . . . . . . . . . . . . . . . . . . .37
ARTICLE 9 Books, Records, Accounting, and Reports. . . . . . . . . . . . .41
9.1 Records and Accounting . . . . . . . . . . . . . . . . . . . . .41
9.2 Fiscal Year. . . . . . . . . . . . . . . . . . . . . . . . . . .41
9.3 Reports. . . . . . . . . . . . . . . . . . . . . . . . . . . . .42
ARTICLE 10 Tax Matters . . . . . . . . . . . . . . . . . . . . . . . .42
10.1 Preparation of Tax Returns . . . . . . . . . . . . . . . . . . .42
10.2 Tax Elections. . . . . . . . . . . . . . . . . . . . . . . . . .42
10.3 Tax Matters Partner. . . . . . . . . . . . . . . . . . . . . . .43
10.4 Withholding. . . . . . . . . . . . . . . . . . . . . . . . . . .44
ARTICLE 11 Transfers and Withdrawals . . . . . . . . . . . . . . . . .46
11.1 Transfer . . . . . . . . . . . . . . . . . . . . . . . . . . . .46
11.2 Transfer of the General Partner's and the Company's Partnership
Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .46
11.3 Limited Partners' Rights to Transfer . . . . . . . . . . . . . .47
11.4 Substituted Limited Partners . . . . . . . . . . . . . . . . . .49
11.5 Assignees. . . . . . . . . . . . . . . . . . . . . . . . . . . .49
11.6 General Provisions . . . . . . . . . . . . . . . . . . . . . . .50
ARTICLE 12 Admission of Partners . . . . . . . . . . . . . . . . . . .51
12.1 Admission of Successor General Partner . . . . . . . . . . . . .51
12.2 Admission of Additional Limited Partners . . . . . . . . . . . .51
12.3 Amendment of Agreement and Certificate of Limited Partnership. .52
ARTICLE 13 Dissolution, Liquidation, and Termination . . . . . . . . .52
13.1 Dissolution. . . . . . . . . . . . . . . . . . . . . . . . . . .52
13.2 Winding Up . . . . . . . . . . . . . . . . . . . . . . . . . . .53
13.3 No Obligation to Contribute Deficit. . . . . . . . . . . . . . .54
13.4 Rights of Limited Partners.. . . . . . . . . . . . . . . . . . .54
13.5 Notice of Dissolution. . . . . . . . . . . . . . . . . . . . . .55
13.6 Termination of Partnership and Cancellation of Certificate
of Limited Partnership . . . . . . . . . . . . . . . . . . . . .55
13.7 Reasonable Time for Winding-Up . . . . . . . . . . . . . . . . .55
13.8 Waiver of Partition. . . . . . . . . . . . . . . . . . . . . . .55
ARTICLE 14 Amendment of Partnership Agreement;
Action by Limited Partners. . . . . . . . . . . . . . . . .55
14.1 Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . .55
14.2 Action by Limited Partners . . . . . . . . . . . . . . . . . . .56
ARTICLE 15 General Provisions. . . . . . . . . . . . . . . . . . . . .57
15.1 Addresses and Notice . . . . . . . . . . . . . . . . . . . . . .57
15.2 Titles and Captions. . . . . . . . . . . . . . . . . . . . . . .58
15.3 Certain Terms. . . . . . . . . . . . . . . . . . . . . . . . . .58
15.4 Further Action . . . . . . . . . . . . . . . . . . . . . . . . .58
15.5 Binding Effect . . . . . . . . . . . . . . . . . . . . . . . . .58
15.6 Creditors. . . . . . . . . . . . . . . . . . . . . . . . . . . .58
15.7 Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . .58
15.8 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . .58
15.9 Applicable Law . . . . . . . . . . . . . . . . . . . . . . . . .58
15.10 Invalidity of Provisions. . . . . . . . . . . . . . . . . . . .58
15.11 Entire Agreement. . . . . . . . . . . . . . . . . . . . . . . .59
EXHIBIT A PARTNERS' CONTRIBUTIONS AND PARTNERSHIP INTERESTS
EXHIBIT B ALLOCATIONS OF PARTNERSHIP ITEMS
EXHIBIT C DESCRIPTION OF FLORIDA LAND
EXHIBIT D FORM OF NOTICE OF REDEMPTION
EXHIBIT E PROPERTIES TO WHICH SECTION 7.1A(3) IS APPLICABLE
EXHIBIT F FORM OF LETTER
SECOND AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP
OF
▇▇▇▇▇▇▇▇▇▇ ▇▇ REALTY L.P.
This Second Amended and Restated Agreement of Limited Partnership of
▇▇▇▇▇▇▇▇▇▇ ▇▇ Realty L.P. (the "Partnership"), dated as of June 16, 2000, is
entered into by and among CV GP L.P. ("CV GP"), a Delaware limited
partnership, and the other parties whose names are set forth on Exhibit A
attached hereto.
WHEREAS the Partnership was formed pursuant to the Revised Uniform
Limited Partnership Act of the State of Delaware by filing, on May 29, 1997,
a certificate of limited partnership with the Secretary of State of the State
of Delaware and entering into the Agreement of Limited Partnership, as such
agreement was amended and restated as of December 31, 1997 (the "Original
Agreement"); and
WHEREAS, ▇▇▇▇▇▇▇▇▇▇ ▇▇ Realty Trust ("CV Trust"), a Delaware business"
trust and wholly owned subsidiary of CV Reit, Inc., a Delaware corporation
("CV"), conveyed its general partner interest in the Partnership to CV in
connection with the merger of CV Trust with and into CV, caused CV to be
admitted to the Partnership as successor General Partner and withdrew as
general partner of the Partnership.
WHEREAS, CV assigned its general partner interest in the Partnership to
Kramont Realty Trust ("Kramont"), a Maryland real estate investment trust, in
connection with the merger of CV with and into Kramont, caused Kramont to be
admitted to the Partnership as successor General Partner and withdrew as
general partner of the Partnership.
WHEREAS, Kramont assigned its general partner interest in the
Partnership to Kramont Operating Partnership L.P. ("Kramont OP"), a Delaware
limited partnership, caused Kramont OP to be admitted to the Partnership as
successor General Partner and withdrew as general partner of the Partnership.
WHEREAS, Kramont OP assigned its general partner interest in the
Partnership to CV GP, caused CV GP to be admitted to the Partnership as
successor General Partner and withdrew as general partner of the Partnership.
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 Kramont
(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 Second Amended and Restated 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 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. Pursuant to Regulations section 1.704-1(b)(2)(iv)(f) and (h)
and after giving effect to Section 2.1, but before giving effect to the
remainder of Article 4, the balance in the Capital Account of each of the
Trust and the Original Limited Partner shall equal zero.
"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 Kramont, 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 Kramont, a Maryland real estate investment trust.
"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 C.
"GAAP" means United States generally accepted accounting principles, as
in effect from time to time.
"General Partner" means CV GP or its 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" shall mean Kramont Realty Trust, a Maryland real estate
investment trust, and the general partner of Kramont OP.
"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 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 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 Unit" means a fractional, undivided share of the Partnership
Interests of all Partners issued pursuant to Sections 4.1, 4.2 and 4.3. The
number of OP Units outstanding and the Percentage Interests in the
Partnership represented by such OP Units are set forth in Exhibit A, as such
Exhibit may be amended from time to time. The ownership of OP Units shall be
evidenced by such form of certificate for units as the General Partner adopts
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 Units evidenced thereby.
"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 ▇▇▇▇▇▇▇▇▇▇ ▇▇ Realty 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, the General Partner, or the predecessor in
interest of a Partner or 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, including specifically, but without
limitation, Section 11.5, 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 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 or Assignee, owning OP
Units the fractional part of the Partnership Interests owned by such Partner
or Assignee and determined from time to time by dividing the number of OP
Units owned by such Partner or Assignee at any such time by the total number
of OP 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 Units at that time are not then held by the General Partner or
its Affiliates, a majority of the OP Units of the Limited Partners (not
including OP Units originally issued to the General Partner and then held by
the General Partner or its Affiliates, but specifically including OP 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 Units then held by the General Partner and its
Affiliates.
"Quarter" means each of the three month periods ending on March 31, June
30, September 30, and December 31.
"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 Company, par
value $.01 per share.
"Shares Amount" means a number of Shares equal to the product of the
number of OP Units offered for redemption by a Redeeming Partner times the
Adjustment Factor; provided that, in the event the Company 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 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 Company, the "Shares Amount" shall mean a number of
shares, certificates of beneficial interest, cash or other property or other
securities of the successor to the Company in connection with such change
equal to the product of the number of OP 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 Company, Kramont OP, the General Partner, the Partnership or any of
their respective Affiliates 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 Continuation. The Partners hereby agree to continue the
Partnership under and pursuant to the Act. The Partnership is a limited
partnership formed pursuant to the provisions of the Act and upon the terms
and conditions set forth in this Agreement. Except as expressly provided
herein to the contrary, the rights and obligations of the Partners and the
administration and termination of the Partnership shall be governed by the
Act. The Partnership Interest of each Partner shall be personal property for
all purposes.
2.2 Name. The name of the Partnership is ▇▇▇▇▇▇▇▇▇▇ ▇▇ Realty
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 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; 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 the Partners of at least 29 cents per OP Unit per
quarter (or such greater amount as may be required to enable the General
Partner to make distributions to Kramont OP sufficient to enable Kramont OP
to make distributions to the Company sufficient to enable the Company to pay
a regular quarterly dividend of at least 29 cents per share and any other
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), it being understood that no guarantee can be given that this purpose
can be achieved. (In the event that an event described in clauses (i), (ii),
or (iii) of the definition of "Adjustment Factor" occurs with respect to the
Shares, the figure of 29 cents contained in this Section 3.1 and in Sections
4.2C and 4.3A shall be adjusted and shall be deemed to refer to the per share
equivalent of a distribution by the Company of the same total amount as would
have been distributed had no such event occurred and had 29 cents per share been
distributed), provided, however, that such business shall be limited to and
conducted in such a manner as to permit Kramont 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.
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) or to pay
the regular quarterly dividend described in Section 3.1; (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.
ARTICLE 4
Capital Contributions
4.1 Capital Contributions of the Partners.
A. The Partners owning OP Units or their predecessors in
interest have made the Capital Contributions and have been issued OP Units in
exchange therefor and 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). 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, 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 become
Partners and 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. Each Partner
shall own OP Units in the amounts set forth in Exhibit A and shall have a
Percentage Interest in the Partnership set forth in Exhibit A (but such OP
Units and Percentage Interests may be further adjusted pursuant to Sections
4.1C). The number of OP Units held by the General Partner, in its capacity
as general partner, shall be deemed to be the General Partner Interest.
The number of OP Units issued to each Partner and the Capital
Account of certain Partners shall be further adjusted in the circumstances
provided in Section 4.1 (and the Gross Asset Value of property contributed by
any Partner whose Capital Account is so adjusted shall be correspondingly
adjusted). No Partner whose number of OP Units is reduced pursuant to
Section 4.1 shall be required solely by reason thereof to return to the
Partnership any distributions received prior to such reduction (but such
Person may otherwise have liability to the Partnership or to other Persons
under the Master Agreement). If, as a result of the making of any
distributions prior to any such reduction, the Capital Accounts of the
Partners shall be disproportionate to their Percentage Interests following
such reduction, gross income or gross deductions of the Partnership shall be
allocated to eliminate the disproportion so resulting.
B. The General Partner shall contribute (or shall cause the
Company and its qualified REIT subsidiaries to contribute) to the Partnership
the net cash flow of the Company and such qualified REIT subsidiaries
(including net sales and refinancing proceeds) attributable to ownership of
the Florida Land (after payment of any expenditures of the Company and such
qualified REIT subsidiaries with respect to the Florida Land, including,
without limitation, management fees and principal and interest on any debt of
the Company and such qualified REIT subsidiaries attributable to the Florida
Land) and shall follow (and shall cause the Company and its qualified REIT
subsidiaries to follow) the directions of the Partnership with respect to the
management, ownership, leasing, development, financing, and sale of the
Florida Land. Such contribution shall be made promptly upon the realization
of such amounts. No additional OP Units shall be issued to the Company or
the General Partner, or such qualified REIT subsidiaries in connection with
such contribution. Although, notwithstanding Section 4.1A and unless the
General Partner shall otherwise determine, title to the Florida Land and all
interests therein shall remain vested in the Company or such qualified REIT
subsidiaries and shall not be, and shall not be deemed to have been, granted,
assigned, transferred, or otherwise conveyed to or vested in the Partnership,
this Agreement, including without limitation the determination of Capital
Contributions, Available Cash, and Net Income and Net Loss, shall be applied
as though the Florida Land had been contributed to the Partnership by CV on
December 31, 1997, subject to any debt of CV and such qualified REIT
subsidiaries attributable to the Florida Land. The intent of this provision
and of Section 7.3B is that the Partnership (and not the General Partner,
Kramont OP, the Company, or such qualified REIT subsidiaries) shall have the
economic benefits and burdens that the Partnership would have had if it did
own the Florida Land, subject to any debt of the Company and such qualified
REIT subsidiaries attributable to the Florida Land, with the effect that the
income, loss, cash flow, and cash expenditures attributable to the Florida
Land shall be treated as income, loss, cash flow, and cash expenditures of
the Partnership and not of the General Partner, Kramont OP, the Company, or
such qualified REIT subsidiaries (and, to the extent they are for any reason
not so treated, the principles of the antepenultimate sentence of Section
7.3B shall apply). The General Partner may at any time transfer (or cause to
be transferred) all or any portion of the Florida Land, or all or any portion
of the ownership interests in an Entity owning the Florida Land, to the
Partnership and, to the extent of such transfer, this Section 4.1B and
Section 7.3B, to the extent relating to the Florida Land, shall cease to
apply. No additional OP Units shall be issued to the General Partner,
Kramont OP, the Company, or its qualified REIT subsidiaries in connection
with such a transfer.
C. (1) Sections 1.6(c), 1.9, and 2.1 of the Master
Agreement provide that the number of OP Units to be issued to the Meshon
Parties and the Levy Parties (each as defined in the Master Agreement) may,
in certain circumstances, be adjusted. Such Sections 1.6(c), 1.9, and 2.1
are hereby incorporated herein, to the extent relating to OP Units to be
issued to the Meshon Parties and the Levy Parties, but not otherwise
reflected on Exhibit A. Any OP Units issued pursuant to the preceding
sentences of this Section 4.1C shall be deemed for purposes of Section 8.6 to
have been issued on the date hereof. To the extent ascertainable on the date
hereof, the amounts reflected on Exhibit A shall give effect to the
provisions of this Section 4.1C and, to the extent ascertained hereafter, any
adjustments to such amounts shall be reflected on an amended or corrected
Exhibit A prepared by the General Partner pursuant to Section 4.1A.
(2) In the event of any inaccuracy in or breach of any
representation or warranty made in the Master Agreement by any Limited
Partner (or predecessor in interest of a Limited Partner or Assignee) other
than the General Partner and if the Company exercises its rights under
section 1.4(b) of the Master Agreement, but subject to the provisions of
section 12.2 of the Master Agreement (relating to time limitations on
representations and warranties), the number of OP Units held by such Limited
Partner (or the successor in interest of such Limited Partner) shall be
reduced. If such inaccuracy or breach related to matters entering into the
calculation of net operating income of any real property, interests in which
were directly or indirectly contributed to the Partnership by such Limited
Partner (or predecessor in interest of a Limited Partner or Assignee), the
number of OP Units shall be reduced by 1 for each $1.16 per annum by which
the net operating income attributable to the interest so contributed was
overstated. If such inaccuracy or breach related to any other matter, the
number of OP Units shall be reduced by 1 for each $11 by which the
Partnership is damaged by reason of such inaccuracy or breach. The
provisions of this Section 4.1C shall not preclude the exercise of any other
remedy otherwise available to any party for any inaccuracy in or breach of
any representation or warranty made in the Master Agreement or other breach
hereof or of the Master Agreement by any other party.
D. The Partners shall have no obligation to make any
additional Capital Contributions or loans to the Partnership.
E. The General Partner shall give notice to any Partner or
Assignee affected thereby at the time of making any adjustment under
Section 4.1C.
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 4.2C); (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 4.2C); 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, after the date of this Second
Amended and Restated Agreement of Limited Partnership, issue any debt
securities (otherwise than to enable the Company to pay its regular quarterly
dividend of 29 cents per share and any other 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 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 Kramont OP, and Kramont OP shall lend to
the General Partner, and the General Partner shall 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 subsequent 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
Kramont OP, and Kramont OP shall contribute to the General Partner, and the
General Partner shall 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 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 Kramont OP, and Kramont OP shall contribute to
the General Partner, and the General Partner shall 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 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 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. Any interests in the
Partnership with rights different from OP Units held by the limited partners
on the date hereof so issued to the General Partner shall be held at all
times by the General Partner and shall not be transferable except to a
successor General Partner hereunder. Notwithstanding the foregoing, if at
any time the Company, Kramont OP or the General Partner 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 Kramont OP, Kramont OP shall be deemed to
contribute to the capital of CV GP, and CV GP 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 through Kramont OP and CV GP (and
such net proceeds so transferred shall not constitute a capital
contribution); and (iv) the Partnership shall issue to CV GP for each such
Share one (1) additional OP Unit registered in the name of CV GP and Kramont
OP shall issue one OP Unit to 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. In addition to any Partnership Interests issuable by the
Partnership pursuant to Section 4.2, the General Partner is authorized to
cause the Partnership to issue additional Partnership Interests (or options
therefor) in the form of OP Units or other Partnership Interests junior to
the OP Units to any Persons at any time or from time to time, for
consideration not less than the fair market value thereof (or the fair market
value as of the date an option is granted) (as such fair market value is
determined in the good faith discretion of the directors or trustees of the
general partner of the General Partner), and on such terms and conditions, as
the General Partner shall establish in each case in its sole and absolute
discretion, without any approval being required from any Limited Partner
(other than the Company, if the Company is not the General Partner) or any
other Person; provided, however, that (i) such issuance does not effect a
material adverse impact (as such material adverse impact is determined in the
good faith discretion of the directors or trustees, of the general partner of
the General Partner) 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 or Section 4.2C), or (C) the ability of the Company to pay
the regular quarterly dividend of at least 29 cents per share described in
Section 3.1; (ii) such issuance does not cause 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 assets of any employee benefit plan pursuant to
section 2510.3-101 of the regulations of the United States Department of
Labor. 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
the Certificate, Exhibit A, or any other provision of this Agreement (except
as provided in Section 14.1C)
B. [INTENTIONALLY OMITTED]
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 4.2C, 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. 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 Available Cash, to the Partners, in accordance with each
Partner's respective Percentage Interest; 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.
5.2 Qualification as a REIT. CV GP may (and, if CV GP is at any
time not the general partner of the Partnership, the general partner of the
Partnership shall use its best efforts, if so requested by CV GP, to) 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
CV GP to make distributions to Kramont OP sufficient to enable Kramont OP to
make distributions to the Company sufficient to enable the Company to pay
shareholder dividends that will (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 Additional Partnership Interests. If the Partnership issues
Partnership Interests in accordance with Section 4.2 or 4.3, the distribution
priorities set forth in Section 5.1 shall be amended, as necessary, to
reflect the distribution priority of such Partnership Interests and
corresponding amendments shall be made to the provisions of Exhibit B.
5.5 Distributions Upon Liquidation. Proceeds from a Terminating
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, the Partnership,
and the General Partner on behalf of the Partnership, shall not be required
to make a distribution to a Partner on account of its interest in the
Partnership if such distribution would violation Section 17-607 of the Act or
any other applicable law.
ARTICLE 6
Allocations
The Net Income, Net Loss, and other items of the Partnership shall
be allocated pursuant to the provisions of Sections 4.1 and 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 as will enable the General Partner to make
distributions to Kramont OP sufficient to permit Kramont OP to make
distributions to the Company 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
(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 of an interest in a property listed on Exhibit E (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 E (but only to the extent the Person
identified with reference to the property on Exhibit E is a Limited Partner
hereunder), without the consent of each individual listed with respect to
such property on Exhibit E (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, (y) prior to August 1, 1998, except with the
consent or at the request of Meshon, in the case of the Rio Grande Plaza
shopping center, or (z) 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, 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 Rio Grande Plaza, 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 ▇▇▇▇ ▇▇▇▇▇ (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 sole and 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; and
(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.
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's Allocable Expenses.
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 (and,
on a monthly basis or such other basis as the General Partner and the Company
shall agree, the Partnership shall, if the Company or its Affiliate is not
the General Partner, pay for the account of the Company or its Affiliate or
reimburse the Company or its Affiliate 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;
including, without limitation, the allocable portion of: 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 December 31, 1997), 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 December 31, 1997), and
other expenses of a similar nature; and, so long as the Company (or any of
its Affiliates) owns the Florida Land, any net negative cash flow (taking
into account any expenditures of the Company or its qualified REIT
subsidiaries with respect to the Florida Land, including, without limitation,
management fees and payment of principal and interest on debt attributable to
the Florida Land) attributable to the Florida Land. 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) the Florida Land and the management of the business
of the Partnership and the management of (subject to Sections 4.1B and 7.3B)
the Florida Land, and such activities as are incidental thereto, except that
the General Partner may acquire, hold, develop, operate, and dispose of the
properties which cannot be acquired by the Partnership or which the owner
thereof is, for tax or other reasons, unwilling to transfer to the
Partnership. If such properties are acquired by the General Partner, there
shall be a proper allocation of expenses between the General Partner and the
Partnership. 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.
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 the ability of the General Partner to make distributions to Kramont
OP sufficient to enable Kramont OP to make distributions to the Company
sufficient to enable the Company to pay the regular quarterly dividend
described in Section 3.1; or (ii) to avoid the Company's incurring any taxes
or other liability under the Code, including specifically, but without
limitation, under section 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. The Florida Land is not a Partnership asset for purposes of
this Section 7.9.
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, member, manager, trustee or general partner 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 CV
GP) and any officer, director, employee, agent, trustee, member, manager,
Affiliate, or shareholder of any Limited Partner (other than CV GP) 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, 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 such OP Unit) after the issuance of an OP Unit to a Limited
Partner pursuant to Article 4 (or upon the earlier death of such Limited
Partner), the holder of such OP Unit (other than an OP Unit that is or has
been held by the General Partner or any Affiliate of the General Partner)
shall have the right (the "Redemption Right") to require the Partnership to
redeem such OP 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 D 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 Units or, if such Redeeming Partner holds fewer than 1,000 OP
Units, for fewer than all of the OP 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 F hereto.
(ii) The Redeeming Partner shall have no right with
respect to any OP 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 shall, within 2 business days after receipt
of such Notice, deliver to Kramont a copy of such Notice of Redemption.
Kramont may, within 3 business days after receipt of such Notice, in its sole
discretion (subject to any limitations on ownership and transfer of Shares
set forth in Kramont's Declaration of Trust, as the same may be amended,
restated, and supplemented from time to time (the "Declaration")), but only
if Kramont 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),
elect to assume directly and satisfy a Redemption Right by issuing to the
Redeeming Partner the Shares Amount on the Specified Redemption Date,
whereupon Kramont shall acquire the OP Units offered for redemption by the
Redeeming Partner, and the General Partner shall be treated for all purposes
of this Agreement as the owner of such OP Units by virtue of the
contributions of the OP Units by Kramont OP and by Kramont OP to the General
Partner described in the third to last sentence of this Section 8.6B(i). If
Kramont elects not to assume directly and satisfy the Redemption Right by
issuing the Shares Amount to the Redeeming Partner, it shall notify the
General Partner, and the General Partner may, in its sole discretion, assume
directly and satisfy the Redemption Right by paying the Cash Amount to the
Redeeming Partner on the Specified Redemption Date, whereupon the General
Partner shall acquire the OP Units offered for redemption by the Redeeming
Partner and shall be treated for all purposes of this Agreement as the owner
of such OP Units. If it shall be necessary under the second preceding
sentence for a Registration Statement to be caused to be in effect, Kramont
will use commercially reasonable efforts to cause such Registration Statement
to be filed within the 60-day period there described and to become effective
as soon as reasonably practicable. Unless Kramont, in its sole discretion,
shall exercise its right to assume directly and satisfy the Redemption Right,
Kramont 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, and 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 Kramont or the General Partner shall exercise
its right to satisfy the Redemption Right in the manner described in the
second and third sentences 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. In the event Kramont
shall exercise its right to satisfy the Redemption Right, each of the
Redeeming Partner, the Partnership, Kramont and the General Partner shall,
for Federal income tax purposes, treat the transaction between Kramont and
the Redeeming Partner as follows: (1) Kramont shall be deemed to have
acquired the OP Units from the Redeeming Partner in exchange for the Shares
Amount, (2) Kramont shall be deemed to contribute such OP Units to Kramont OP
in exchange for an equal number of OP Common Units (as defined in the amended
and restated agreement of limited partnership of Kramont OP), and (3) Kramont
OP shall be deemed to contribute such OP Units to CV GP. In the event the
General Partner shall exercise its right to satisfy the Redemption Right,
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
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 Kramont 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 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, Kramont and their 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, Kramont, the Affiliates
of any of them, and the respective officers, directors, trustees, general
partners, and agents of the General Partner, the Partnership, Kramont, 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 Kramont 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,
Kramont 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, Kramont's or any of their
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, Kramont or any of their Affiliates for offers or sales to be
effected under such Registration Statement. The General Partner and Kramont
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 Units and desires that the Shares it
receives from Kramont in exchange for the redeemed OP 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, the General Partner shall send it to Kramont and if Kramont
determines that it wishes to elect to assume the redemption obligation from
the Partnership and wishes to give the Redeeming Partner Shares, Kramont
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 or Kramont
to assume the redemption obligation and/or elect to give the Redeeming
Partner Shares, as the case may be, in exchange for its OP Units. If the
Limited Partner which gave the Pre-Redemption Notice does not give the
Partnership a Redemption Notice with respect to its OP Units within 180 days
after the effective date of such Registration Statement, neither the
Partnership, Kramont, 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, Kramont 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 Kramont, the delivery
of Shares to such Partner on the Specified Redemption Date (i) would be
prohibited under the Declaration, (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 Units Delivered for Redemption. Each
Limited Partner covenants and agrees with the Partnership, the General
Partner and Kramont that the Redeeming Partner shall transfer good title to
all OP Units delivered for redemption to the Partnership, the General Partner
or Kramont, as the case may be, free and clear of all Liens (as defined in
Exhibit D), and, notwithstanding anything contained herein to the contrary,
none of the General Partner, the Partnership nor Kramont shall be under any
obligation to acquire OP 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
Units to the Partnership, the General Partner or Kramont, such Limited
Partner shall assume and pay such transfer tax.
E. Additional Partnership Interests. In the event that the
Partnership issues OP 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 Units
(including setting forth any restrictions on the exercise of the Redemption
Right with respect to OP Units described in this Section 8.6E).
F. Successor to CV GP. If CV GP shall cease to serve as
General Partner, all of CV GP's rights under this Section 8.6 shall vest in
CV GP's successor as General Partner, if such successor is an Affiliate of CV
GP (or would have been an Affiliate of CV GP had CV GP continued to exist),
and otherwise in such Affiliate of CV GP (or such Person that would have been
an Affiliate of CV GP, had CV GP continued to exist) as CV GP may designate
(or, if CV GP has not made any such designation, as any Person with authority
to act on behalf of CV GP 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 ninety (90) days of the close of each taxable year, the tax
information reasonably required by Limited Partners for Federal and state
income tax reporting purposes. At the time of any sale or refinancing of any
property listed on Exhibit E, the General Partner shall give notice thereof
to each individual listed with respect to such property on Exhibit E.
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 select (i) 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. CV GP (or, if, for Federal income tax purposes, CV GP's
General Partner Interest is treated as an asset of some other Person, such
other Person) 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 CV GP 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
section 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 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. CV GP may Transfer any of its OP Units reflecting Limited
Partner Interests without the Consent of the General Partner or any Limited
Partner, but may not transfer any other Partnership Interest 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. (1) Subject to the provisions of Sections 11.3C, 11.3D,
11.3E, and 11.4, a Limited Partner (other than CV GP) 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.
(2) 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 Company, 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 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. 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; and
(3) The balance, if any, to the General Partner and
Limited Partners to the extent of and in accordance with the positive
balances in their Capital Accounts, after giving effect to all contributions,
distributions, and allocations for all periods.
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 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 by any Limited Partner or Limited Partners holding in the
aggregate 25% or more of the Partnership Interests. 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 15 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, 14.1C, or 14.1D, 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
Limited Partners holding a Qualifying Limited Partner Interest.
B. Notwithstanding Section 14.1A, the General Partner shall
have the power, without the consent of the Limited Partners, to amend this
Agreement (other than 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 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 and 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.
The General Partner shall provide notice to the Limited Partners when any
action under this Section 14.1B is taken.
C. Notwithstanding Section 14.1A and 14.1B, this Agreement
shall not be amended without the consent of each Partner adversely affected
if such amendment would (i) convert a Limited Partner's interest in the
Partnership into a general partnership interest; (ii) modify the limited
liability of a Limited Partner in a manner adverse to such Limited Partner;
(iii) alter rights of the Partner to receive distributions pursuant to
Article 5 or Article 13 or the allocations specified in Article 6 (except as
permitted pursuant to Article 4 and Sections 5.4 and 14.1B(3)); (iv) cause
the termination of the Partnership prior to the time set forth in Sections
2.5 and 13.1; or (v) amend Section 5.4 or 7.1A(3) or this Section 14.1C (or,
in the case of an amendment pursuant to Section 14.1B, amend Section 4.1B,
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
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 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 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.
15.5 Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their heirs, executors,
administrators, successors, legal representatives, and permitted assigns.
Any reference to the "Company" herein shall also be deemed to include any
successor thereto in connection with a change in identity, form, or place of
organization of the Company.
15.6 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.
15.7 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.
15.8 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.
15.9 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.
15.10 Invalidity of Provisions. If any provision of this
Agreement is or becomes invalid, illegal, or unenforceable in any respect,
the validity, legality, and enforceability of the remaining provisions
contained herein shall not be affected thereby.
15.11 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:
CV GP L.P.
By: CV GP LLC, its General Partner
By: Kramont Operating Partnership, L.P., Sole
Member
By: Kramont Realty Trust, its General
Partner
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
---------------------------------
Print Name:
Title:
LIMITED PARTNERS:
CV PARTNER HOLDINGS, L.P.
By: CV OP Holdings LLC, its General Partner
By: CV GP L.P., its Sole Member
By: CV GP LLC, its General Partner
By: Kramont Operating Partnership,
L.P., Sole Member
By: Kramont Realty Trust, its
General Partner
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
----------------------
Print Name:
Title:
CV GP L.P.
By: CV GP LLC, its General Partner
By: Kramont Operating Partnership, L.P., Sole
Member
By: Kramont Realty Trust, its General
Partner
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
--------------------------------
Print Name:
Title:
Kramont is executing this
Agreement solely to indicate
its acceptance of the matters
set forth in Sections 4.1B, 8.6B
and 8.6D
KRAMONT REALTY TRUST
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
___________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: President and
Chief Executive Officer
Exhibit A
Partners' Contributions and Partnership Interests
Gross Asset
Name and Cash Value of Total Net
Address Contri- Contributed Contri- OP Percentage
of Partner butions Property Liabilities bution Units Interest
---------- -------- ----------- ------------ ---------- ----- -----------
General Partner
---------------
CV GP L.P. 8,423,422 89.33502%
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇
Limited Partners
----------------
CV Partner Holdings, L.P. 994,326 10.54537%
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇
Marlton Crossing Shopping 11,278 0.11961%
Center Limited Partnership
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ --------- ---------
9,429,026 100.00000%
Exhibit B
Allocations of Partnership Items
1. Allocation of Net Income and Net Loss.
(a) Net Income. Except as otherwise provided in Sections 4.1 and 7.3B
and this Exhibit B, Net Income (or items thereof) for any fiscal year or
other applicable period shall be allocated to the Partners in accordance with
their respective Percentage Interests.
(b) Net Loss. Except as otherwise provided in Section 4.1 and this
Exhibit B, Net Loss (or items thereof) of the Partnership for each fiscal
year or other applicable period shall be allocated to the Partners in
accordance with the Partners' respective Percentage Interests.
Notwithstanding the preceding sentence, to the extent any Net Loss (or items
thereof) allocated to a Partner under this subparagraph (b) would cause such
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 Partner(s)
(hereinafter, the "Permitted Partners") pro rata in accordance with each
Permitted Partner's Percentage Interest.
(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, the Partners' respective Capital Account balances are proportionate
to their Percentage Interests. In the event that the Capital Account balance
of more than one Partner is disproportionate to such 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 (except by reason of Section 4.1C), 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. In the event any Partner's Percentage Interest
changes by reason of Section 4.1C, the principles of subparagraph
1(c) of this Exhibit B shall be applied.
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 Partners that are in proportion to the Partners' respective Percentage
Interests, so that when liquidating distributions are made in accordance with
such final Capital Account balances under Section 13.2A(3), such
distributions will be made in proportion to the Partners' 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 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). For the purposes hereof, in
order to determine the proportionate allocations of depreciation and
amortization deductions for each fiscal year or other applicable period, such
deductions shall be deemed allocated on the same basis as Net Income and Net
Loss for such respective period. Items governed by section 1.1245-1(e) of
the Regulations shall be allocated in accordance with that section.
(c) Excess Nonrecourse Liability Safe Harbor. Pursuant to Regulations
section 1.752-3(a)(3), solely for purposes of determining each Partner's
proportionate share of the "excess nonrecourse liabilities" of the
Partnership (as defined in Regulations section 1.752-3(a)(3)), the Partners'
respective interest in the Partnership profits shall be determined in
accordance with each Partner's Percentage Interest; provided, however, that
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.
Exhibit C
Florida Land
PROPERTY
1. Century Village Administration Building
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇
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
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇
6. Partnership interests in Partnerships owning:
(a) Warehouse
▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇
(b) Warehouse
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇
(c) Warehouse
▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇
Exhibit D
Form of Notice of Redemption
To:
CV GP L.P.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
1. The undersigned (the "Redeeming Partner") hereby elects to redeem
______ OP Units, pursuant to Section 8.6 of that certain Second Amended and
Restated Agreement of Limited Partnership of ▇▇▇▇▇▇▇▇▇▇ ▇▇ Realty L.P., dated
as of ________, 1999, and entered into by and among CV GP L.P. ("CV GP"), a
Delaware limited liability company, 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, CV GP, L.P., their
Affiliates, and ▇▇▇▇▇▇▇▇▇▇ ▇▇ Realty 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"); (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. 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 E
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 ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Rio Grande Shopping ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. January 1, 2000
Center
The rights under Section 7.1A(3) and the final sentence of Section 10.1
granted to the persons listed on this Exhibit E 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 F
Form of Letter
[▇▇▇▇▇▇▇▇▇▇ ▇▇ Realty] L.P.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Kramont Operating Partnership, L.P.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Gentlemen:
This letter is being issued pursuant to Section 8.6A(i) of the
Second Amended and Restated Agreement of Limited Partnership (the
"Partnership Agreement") of ▇▇▇▇▇▇▇▇▇▇ ▇▇ Realty 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,