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URSTADT REALTY ASSOCIATES CO LP
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LIMITED PARTNERSHIP AGREEMENT
June 25, 2003
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS.....................................................1
ARTICLE II ORGANIZATION...................................................5
2.1 Formation of Limited Partnership.................................5
2.2 Name of Partnership..............................................6
2.3 Principal Office, Registered Office and Agent....................6
2.4 Term of Partnership..............................................6
2.5 Objects of Partnership...........................................7
2.6 Actions by Partnership...........................................7
ARTICLE III CAPITAL.......................................................7
3.1 Contributions to Capital.........................................7
3.2 Rights of Partners in Capital....................................8
3.3 Capital Accounts.................................................8
3.4 Allocations......................................................8
3.5 Tax Allocations: Code Section 704(c)............................11
3.6 Distributions....................................................12
ARTICLE IV MANAGEMENT.....................................................13
4.1 Rights, Duties and Powers of the General Partner.................13
4.2 Delegation of Duties.............................................14
4.3 Rights of Limited Partners.......................................15
4.4 Activities of General Partner....................................15
4.5 Indemnification of General Partner...............................15
ARTICLE V ADMISSIONS, TRANSFERS AND WITHDRAWALS...........................16
5.1 Admission of Limited Partners....................................16
5.2 Admission of Additional General Partner..........................16
5.3 Transfer of Interests of Limited Partners........................16
5.4 Transfer of Interest of General Partner..........................16
5.5 Withdrawal of Interests of Partners..............................16
ARTICLE VI LIQUIDATION....................................................16
6.1 Liquidation of Partnership Assets................................16
6.2 Expenses of Liquidator(s)........................................17
6.3 Duration of Liquidation..........................................17
6.4 No Liability for Return of Capital...............................17
ARTICLE VII ACCOUNTING; BOOKS AND RECORDS.................................18
7.1 Accounting and Reports...........................................18
7.2 Determinations by General Partner................................18
7.3 Books and Records................................................18
ARTICLE VIII GENERAL PROVISIONS...........................................19
8.1 Amendment of Partnership Agreement...............................19
8.2 Voting...........................................................19
8.3 Power of Attorney................................................19
8.4 Notices..........................................................20
8.5 Agreement Binding Upon Successors and Assigns....................20
8.6 Governing Law....................................................20
8.7 Not for Benefit of Creditors.....................................20
8.8 Counterparts.....................................................21
8.9 Separability of Provisions.......................................21
8.10 Entire Agreement.................................................21
8.11 Consents.........................................................21
8.12 Captions and Titles..............................................21
8.13 Costs and Expenses; Fees of the General Partner..................21
8.14 Indemnification of Partners by the CDU Trust and the
CUB Trust With Respect to the CDU Note and the CUB Note..........21
ii
URSTADT REALTY ASSOCIATES CO LP
LIMITED PARTNERSHIP AGREEMENT
This Limited Partnership Agreement is made effective as of the 25th day
of June, 2003, by and among Urstadt Property Company, Inc. as general partner,
and those persons whose names are subscribed at the end hereof as limited
partners.
ARTICLE I
DEFINITIONS
For purposes of this Agreement:
"Act" means the Delaware Revised Uniform Limited Partnership Act, as in
effect on the date hereof, and as amended from time to time, or any successor
law.
"Additional Shares" means shares received by the Partnership in
connection with (i) a Dividend Reinvestment Plan, or (ii) other stock dividends
or stock distributions from UBP. "Additional Shares" shall also include any
shares similarly received by the Partnership from any other corporation with
respect to Replacement Shares.
"Adjusted Capital Account Deficit" means, with respect to a Partner,
the deficit balance, if any, in that Partner's Capital Account as adjusted under
Section 3.3.
"Agreement" means this Limited Partnership Agreement, as amended from
time to time.
"Capital Account" means with respect to each Partner the capital
account established and maintained on behalf of such Partner as described in
Section 3.3.
"Capital Contribution" means any contribution of cash or property by a
Partner to the capital of the Partnership.
"CDU Note" means that certain Secured Promissory Note dated April 26,
1994, in the amount of $5,850,000 in favor of UPCO, as lender, and signed by the
CDU Trust, as borrower.
"CDU Note Interest Service" means all interest paid or accrued (as the
context requires) by the Partnership under the CDU Note and reserves established
by the Partnership with respect to such interest expense.
"CDU Note Principal Service" means all principal paid or due (as the
context requires) by the Partnership under the CDU Note and reserves established
by the Partnership with respect to such amounts.
"CDU Trust" means the ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Irrevocable Trust created
under that certain Trust Agreement dated April 26, 1994, between ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, as grantor, and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, as trustee.
"Certificate" means the certificate of limited partnership referred to
in Section 2.1.
"Code" means the Internal Revenue Code of 1986, as amended and as
hereafter amended, or any successor law.
"CUB Note" means that certain Secured Promissory Note dated April 26,
1994, in the amount of $5,850,000 in favor of UPCO, as lender, and signed by the
CUB Trust, as borrower.
"CUB Note Interest Service" means all interest paid or accrued (as the
context requires) by the Partnership under the CUB Note and reserves established
by the Partnership with respect to such interest expense.
"CUB Note Principal Service" means principal paid or due (as the
context requires) by the Partnership under the CUB Note and reserves established
by the Partnership with respect to such amounts.
"CUB Trust" means the ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Irrevocable Trust created
under that certain Trust Agreement dated April 26, 1994, between ▇▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇, as grantor, and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, as trustee.
"Custodian Fees" means fees and expenses incurred by the Partnership
for custodial services performed by the Bank of New York (or any successor
thereto) in maintaining custody of any Shares owned by the Partnership.
"Depreciation" means, for each Fiscal Year, an amount equal to the
depreciation, amortization, or other cost recovery deduction allowable for
Federal income tax purposes with respect to an asset for such Fiscal Year,
except that if the Gross Asset Value of an asset differs from its adjusted basis
for Federal income tax purposes at the beginning of such Fiscal Year,
Depreciation shall be an amount which bears the same ratio to such beginning
Gross Asset Value as the Federal income tax depreciation, amortization, or other
cost recovery deduction for such Fiscal Year bears to such beginning adjusted
tax basis; provided, however, that if the adjusted basis for Federal income tax
purposes of an asset at the beginning of such Fiscal Year is zero, Depreciation
shall be determined with reference to such beginning Gross Asset Value using any
reasonable method selected by the General Partner.
"Distributable Cash" shall have the meaning set forth in Section
3.6(b).
"Dividend" shall have the meaning set forth in Section 316(a) of the
Code.
"Dividend Reinvestment Plan" means any plan pursuant to which the
Partnership shall be given the option to receive additional stock in lieu of
distributions in cash.
"Fiscal Year" means each period commencing on January 1 of each year
and ending on December 31 of each year (or on the date of a final distribution
pursuant to Section 6.1(a)(iii)), unless the General Partner shall elect another
fiscal year for the Partnership which is a permissible tax year under the Code.
2
"General Partner" means UPCO, or any successor general partner admitted
pursuant to Section 5.4 hereof.
"Gross Asset Value" means, with respect to any asset, the adjusted
basis of the asset for U.S. federal income tax purposes, adjusted as follows:
(i) The initial Gross Asset Value of any asset contributed (or
deemed contributed under Code Sections 704(b) and the Treas. Regs.
promulgated thereunder) by a Partner to the Partnership will be the
gross fair market value of the asset on the date of the contribution,
as determined by the General Partner (and in the case of Initial
Shares, the agreed fair market value thereof as set forth on Annex B
hereto).
(ii) The Gross Asset Values of all Partnership assets will be
adjusted to equal the respective fair market values of the assets, as
determined by the General Partner, as of (a) the acquisition of an
additional interest in the Partnership by any new or existing Partner
in exchange for more than a de minimis capital contribution, (b) the
distribution by the Partnership to a Partner of more than a de minimis
amount of Partnership property as consideration for an interest in the
Partnership if the General Partner reasonably determines an adjustment
is necessary or appropriate to reflect the relative economic interests
of the Partners in the Partnership, and (iii) the liquidation of the
Partnership within the meaning of the Treas. Reg. ss.
1.704-1(b)(2)(ii)(g).
(iii) The Gross Asset Value of any Partnership asset
distributed to any Partner will be the gross fair market value of the
asset.
(iv) The Gross Asset Values of Partnership assets will be
increased or decreased to reflect any adjustment to the adjusted basis
of the assets under Code Section 734(b) or 743(b), but only to the
extent that the adjustment is taken into account in determining Capital
Accounts under Treas. Reg. ss. 1.704-1(b)(2)(iv)(m), provided that
Gross Asset Values will not be adjusted under this paragraph (iv) to
the extent that the General Partner determines that an adjustment under
paragraph (ii) hereof is necessary or appropriate in connection with a
transaction that would otherwise result in an adjustment under this
paragraph (iv).
After the Gross Asset Value of any asset has been determined or adjusted under
paragraphs (i), (ii) or (iv) hereof, such Gross Asset Value will be adjusted by
the Depreciation, if any, taken into account with respect to the asset for
purposes of computing Profits or Loss.
"Incidental Expenses" means all expenditures of the Partnership other
than items included in (i) expenses relating to the receipt of Net Proceeds From
Shares, (ii) CDU Note Principal Service, (iii) the CDU Note Interest Service,
(iv) CUB Note Principal Service, (v) CUB Note Interest Service, (vi) Custodian
Fees, and (vii) reserves established by the Partnership with respect to such
expenses. "Incidental Expenses" shall be decreased by any reductions of cash
reserves previously established pursuant to the foregoing sentence.
"Incidental Proceeds" means gross proceeds from Partnership operations,
including interest income, other than items included in Net Proceeds From
Shares.
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"Initial Capital Contribution" means a Partner's initial contribution
to the capital of the Partnership pursuant to Section 3.1(a) of this Agreement
and as set forth on Annex A hereto.
"Initial Shares" means Shares contributed pursuant to Initial Capital
Contributions.
"Limited Partner" means each of the CDU Trust, the CUB Trust, ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and any other Person admitted to the Partnership
as a Limited Partner.
"Net Proceeds From Shares" means the gross proceeds, including any
non-cash item, received by the Partnership in connection with (i) any
disposition of all or any portion of the Initial Shares (or any Additional
Shares or Replacement Shares, as applicable), and (ii) distributions made by UBP
to the Partnership with respect to Initial Shares (or any Additional Shares or
Replacement Shares, as applicable), less the portion of such proceeds used to
pay or establish reserves for Partnership expenses relating to the receipt of
such proceeds (including, but not limited to, brokerage and trading expenses),
all as determined by the General Partner. "Net Proceeds From Shares" shall be
increased by any reductions of cash reserves previously established pursuant to
the foregoing sentence.
"Partner" means the General Partner or any of the Limited Partners,
except as otherwise expressly provided herein, and "Partners" means the General
Partner and all of the Limited Partners.
"Partner Minimum Gain" means an amount, with respect to each Partner
Nonrecourse Debt, equal to the Partnership Minimum Gain that would result if
such Partner Nonrecourse Debt were treated as a Nonrecourse Liability,
determined in accordance with Treas. Reg. ss. 1.704-2(i)(3).
"Partner Nonrecourse Debt" has the same meaning as the term "partner
nonrecourse debt" set forth in Treas. ▇▇▇.▇▇. 1.704-2(b)(4).
"Partner Nonrecourse Deductions" has the same meaning as the term
"partner nonrecourse deductions" set forth in Treas. Reg. ss.ss.1.704-2(i)(1)
and 1.704-2(i)(2).
"Partnership" means Urstadt Realty Associates Co LP.
"Partnership Minimum Gain" has the same meaning as the term
"partnership minimum gain" set forth in Treas. Reg. ss. 1.704-2(b)(2) and shall
be determined in accordance with Treas. Reg.ss.1.704-2(d).
"Partnership Nonrecourse Deductions" has the same meaning as the term
"partnership nonrecourse deductions" set forth in Treas. Reg.ss.ss.1.704-2(c)
and (j)(1)(ii).
"Percentage Interest" means, with regard to a Partner, the percentage
that the Capital Account balance of such Partner bears to the total Capital
Account balances of all Partners, after giving effect to the adjustments set
forth in Section 3.3. The aggregate "Percentage Interests" of all Partners shall
always equal 100 percent.
4
"Person" means an individual or a corporation, partnership, limited
liability Partnership, trust, unincorporated organization, association or other
entity.
"Profits and Loss" shall have the meaning set forth in Section 3.4(a)
hereof.
"Regulatory Allocations" has the meaning set forth in Section 3.4(d)
hereof.
"Replacement Shares" means shares received by the Partnership in
exchange for all or any portion of the Initial Shares in connection with, among
other events, a stock split or a reverse stock split of the Shares, a merger of
UBP into another entity, or an acquisition of UBP's shares or assets.
"Replacement Shares" shall also include shares received by the Partnership in
connection with similar future exchanges of shares previously received by the
Partnership in exchange for Initial Shares.
"Shares" shall have the meaning set forth in Section 2.5 hereof.
"Treas. Reg." means the proposed, temporary or final regulations
promulgated under the Code in effect as of the date of filing the Certificate
and the corresponding sections of any regulations subsequently issued that amend
or supersede those regulations.
"UBP" means Urstadt ▇▇▇▇▇▇ Properties Inc., a Maryland corporation.
"UPCO" means Urstadt Property Company, Inc., a Delaware corporation.
"Undistributed Additional Shares" means Additional Shares not
distributed by the Partnership to a Partner pursuant to Section 3.6(c) hereof.
ARTICLE II
ORGANIZATION
2.1 FORMATION OF LIMITED PARTNERSHIP.
(a) The Certificate of Limited Partnership of the Partnership was filed
with the Secretary of State of the State of Delaware on June 25, 2003, and the
Partnership was formed and became effective under and pursuant to the Act on
June 25, 2003.
(b) The General Partner shall execute, acknowledge and file any
amendments to the Certificate as may be required by the Act and any other
instruments, documents and certificates which, in the opinion of the
Partnership's legal counsel, may from time to time be required by the laws of
the United States of America, the State of Delaware or any other jurisdiction in
which the Partnership shall determine to do business, or any political
subdivision or agency thereof, or which such legal counsel may deem necessary or
appropriate to effectuate, implement and continue the valid and subsisting
existence and business of the Partnership. Any required amendment to the
Certificate shall be filed by the General Partner promptly following the event
requiring such amendment. All amendments may be signed either personally or by
an attorney-in-fact.
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2.2 NAME OF PARTNERSHIP.
The name of the Partnership shall be Urstadt Realty Associates Co LP or
such other name as the General Partner may hereafter adopt upon causing an
amendment to the Certificate to be filed with the Secretary of State of the
State of Delaware. The Partnership shall have the exclusive ownership and right
to use the Partnership name so long as the Partnership continues, despite the
expulsion, resignation or removal of any Partner, but upon the Partnership's
termination, the Partnership shall assign such names and the goodwill attached
thereto to the General Partner.
2.3 PRINCIPAL OFFICE, REGISTERED OFFICE AND AGENT.
The Partnership shall have its principal business office at ▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ or at such other location as the General
Partner may designate from time to time. The Partnership shall have its
registered office at the Corporation Trust Center, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other place as the General Partner may
designate from time to time, and its initial registered agent in Delaware shall
be CT Corporation System.
2.4 TERM OF PARTNERSHIP.
(a) The term of the Partnership commenced on June 25, 2003, and shall
continue until the earliest of the following dates:
(i) the date on which the General Partner shall elect to
dissolve the Partnership; or
(ii) the date on which (A) the General Partner is declared
bankrupt by a court with appropriate jurisdiction, (B) the General
Partner files a petition commencing a voluntary case under any
bankruptcy law, (C) the General Partner makes an assignment for the
benefit of creditors, (D) a receiver for the property or affairs of the
General Partner is appointed, (E) the entire partnership interest of
the General Partner is withdrawn from the Partnership and a replacement
General Partner is not admitted to the Partnership in accordance with
the provisions of this Agreement and the Act, or (F) the General
Partner is dissolved and a winding up thereof is commenced.
(b) Except as provided in Section 2.4(a), Section 5.3 or in the Act,
the death, mental illness, dissolution, termination, liquidation, bankruptcy,
reorganization, merger, sale of substantially all of the stock or assets of or
other change in the ownership or nature of a Partner, the admission to the
Partnership of a new General or Limited Partner, or the transfer by a Partner of
his interest in the Partnership to a third party shall not cause the Partnership
to dissolve.
(c) The parties agree that irreparable damage would be done to the
goodwill and reputation of the Partners if any Limited Partner should bring an
action in court to dissolve the Partnership. Care has been taken in this
Agreement to provide for fair and just payment in liquidation of the interests
of all Partners. Accordingly, each Limited Partner hereby waives and renounces
its right to such a court decree of dissolution or to seek the appointment by
the court of a liquidator for the Partnership except as provided herein.
6
2.5 OBJECTS OF PARTNERSHIP.
The object of the Partnership shall be to receive from the Partners as
Capital Contributions shares of Common Stock and Class A Common Stock (the
"Shares") of UBP, to exercise all rights of an owner of the Shares (and, if a
applicable, Additional Shares and/or Replacement Shares), and to engage in any
other activity as the General Partner may determine.
2.6 ACTIONS BY PARTNERSHIP.
The Partnership may execute, deliver and perform all contracts,
agreements and other undertakings and engage in all activities and transactions
as may, in the opinion of the General Partner, be necessary or advisable to
carry out the objects of the partnership set forth in Section 2.5.
ARTICLE III
CAPITAL
3.1 CONTRIBUTIONS TO CAPITAL.
(a) INITIAL CAPITAL CONTRIBUTIONS. Within ten (10) days hereafter each
Partner shall make an initial contribution to the capital of the Partnership
(the "Initial Capital Contribution") equal to the amount of cash and/or the
number of Initial Shares set forth opposite such Partner's name on Annex A. The
Partners hereby agree that the value of the Initial Shares contributed by each
Partner pursuant to the Initial Capital Contributions, which is set forth in
Annex B hereto, constitutes the fair market value of the Initial Shares
contributed by each such Partner. Furthermore, the Partners hereby acknowledge
that the Partnership assumes and accepts as assignee, in conjunction with the
CDU Trust's Initial Capital Contribution and the CUB Trust's Initial Capital
Contribution, and pursuant to (i) the Agreement dated as of June 25, 2003, by
and among, the Partnership, the CDU Trust and the General Partner, and (ii) the
Agreement dated as of June 25, 2003, by and among, the Partnership, the CUB
Trust and the General Partner, the liabilities respectively set forth in Annex B
opposite the CDU Trust and the CUB Trust names. Accordingly, the Percentage
Interest of each Partner after the Initial Capital Contributions shall be equal
to the percentage set forth opposite such Partner's name below:
CDU Trust 44.6%
CUB Trust 44.6%
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 4.9%
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 4.9%
UPCO 1.0%
The Initial Capital Contributions shall be deemed to have been made as of June
25, 2003, for all purposes under this Agreement.
(b) No other Capital Contribution may be made by any Partner unless
such Capital Contribution shall have been approved in advance and in writing by
all the Partners.
7
3.2 RIGHTS OF PARTNERS IN CAPITAL.
(a) No Partner shall be entitled to interest on his Capital
Contribution.
(b) No Partner shall have the right to distributions or the return of
any Capital Contribution except (i) upon the dissolution of the Partnership
pursuant to Section 6.1 or (ii) as provided in Section 3.6. The General Partner
shall not be liable for the return of any such amounts. The General Partner
shall have the right to redeem less than all of a Partner's Partnership
Interests in-kind.
(c) No Partner shall be required to pay to the Partnership or to any
other Partner or to any other Person any deficit or negative balance which may
exist from time to time in such Partner's Capital Account.
3.3 CAPITAL ACCOUNTS.
(a) The Partnership shall maintain a separate Capital Account for each
Partner.
(b) Each Partner's Capital Account shall have an initial balance equal
to the amount of cash and/or the net value of the Initial Shares constituting
such Partner's Initial Capital Contribution.
(c) Each Partner's Capital Account shall be increased by the sum of (i)
the amount of any additional Capital Contribution by such Partner to the
Partnership pursuant to Section 3.1(b), plus (ii) the amount of all items of
Profit, as defined in Section 3.4(a) hereof, or other income or gain allocated
to such Partner pursuant to Sections 3.4(b), 3.4(c) and 3.4(d) hereof.
(d) Each Partner's Capital Account shall be reduced by the sum of (i)
the amount of distributions to such Partner pursuant to Sections 3.6 or 6.1,
plus (ii) the amount of all items of Loss, as defined in Section 3.4(a) hereof,
or other expense or deduction allocated to such Partner pursuant to Sections
3.4(b), 3.4(c) and 3.4(d) hereof.
(e) If a Partnership interest or portion thereof is transferred in
accordance with this Agreement, the Capital Account of the transferor with
respect to such Partnership interest or portion thereof shall carry over to the
transferee in accordance with Treas. Reg.ss.1.704-1(b)(2)(iv)(l).
(f) For any taxable year in which the Partnership has a Code Section
754 election in effect, the Capital Accounts shall be maintained in accordance
with Treas. Reg.ss.1.704-1(b)(2)(iv)(m).
3.4 ALLOCATIONS.
(a) PROFITS AND LOSSES. Profits and losses ("Profits and Loss")
allocated under this Section 3.4 shall be the Partnership's taxable income or
loss determined in accordance with Code Section 703(a) (for this purpose, all
items of income, gain, loss, or deduction required to be stated separately
pursuant to Code Section 703(a)(1) shall be included in taxable income or loss),
with the following adjustments:
8
(i) Any income of the Partnership that is exempt from Federal
income tax and not otherwise taken into account in computing Profits or
Loss pursuant to this definition of "Profits" and "Loss" shall be added
to such taxable income or loss;
(ii) Any expenditures of the Partnership described in Code
Section 705(a)(2)(B) or treated as Code Section 705(a)(2)(B)
expenditures pursuant to Treas. Reg.ss.1.704 1(b)(2)(iv)(i), and not
otherwise taken into account in computing Profits or Loss pursuant to
this definition of "Profits" and "Loss" shall be subtracted from such
taxable income or loss;
(iii) In the event the Gross Asset Value of any Partnership
asset is adjusted pursuant to subparagraphs (ii) or (iii) of the
definition of "Gross Asset Value," the amount of such adjustment shall
be taken into account as gain or loss from the disposition of such
asset for purposes of computing Profits and Loss;
(iv) Gain or loss resulting from any disposition of Property
with respect to which gain or loss is recognized for Federal income tax
purposes shall be computed by reference to the Gross Asset Value of the
property disposed of, notwithstanding that the adjusted tax basis of
such property differs from its Gross Asset Value;
(v) In lieu of the depreciation, amortization, and other cost
recovery deductions taken into account in computing such taxable income
or loss, there shall be taken into account Depreciation;
(vi) To the extent an adjustment to the adjusted tax basis of
any Partnership asset pursuant to Code Section 734(b) or Code Section
743(b) is required pursuant to Treas. Reg. ss. 1.704-1(b)(2)(iv)(m)(4)
to be taken into account in determining Capital Accounts as a result of
a distribution other than in complete liquidation of a Partner's
interest, the amount of such adjustment shall be treated as an item of
gain (if the adjustment increases the basis of the asset) or loss (if
the adjustment decreases the basis of the asset) from the disposition
of the asset and shall be taken into account for purposes of computing
Profits and Loss; and
(vii) All items of Profit or Loss which are specially
allocated pursuant to Sections 3.4(b), 3.4(c) and 3.4(d) shall also be
determined by reference to the foregoing principles.
(b) ALLOCATIONS. As of the end of each Fiscal Year and after giving
effect to the allocations set forth in Sections 3.4(c) and 3.4(d) hereof,
allocations to Partners shall be made in the following manner:
(i) Each Partner shall be specially allocated 100 percent of
the items of Profit (or Loss) realized by the Partnership from any
disposition (including a deemed disposition under Code Section
301(c)(3)) of all or any portion of (a) Initial Shares originally
contributed by that Partner, (b) Undistributed Additional Shares
received by the Partnership on Initial Shares originally contributed by
such Partner (or on Replacement Shares received by the Partnership in
exchange for (i) Initial Shares contributed by such Partner or (ii)
Replacement Shares attributable to such Partner's
9
Initial Shares), and/or (c) Replacement Shares received by the
Partnership in exchange for (i) Initial Shares originally contributed
by such Partner or (ii) Replacement Shares attributable to Initial
Shares originally contributed by such Partner;
(ii) Each Partner shall be specially allocated 100 percent of
the items of Profit realized by the Partnership with respect to
Dividends (including deemed Dividends) on (a) Initial Shares originally
contributed by that Partner, (b) Undistributed Additional Shares
received by the Partnership on Initial Shares originally contributed by
such Partner (or on Replacement Shares received by the Partnership in
exchange for (i) Initial Shares contributed by such Partner, or (ii)
Replacement Shares attributable to such Partner's Initial Shares),
and/or (c) Replacement Shares received by the Partnership in exchange
for (i) Initial Shares originally contributed by such Partner, or (ii)
Replacement Shares attributable to Initial Shares originally
contributed by such Partner;
(iii) Each Partner shall be specially allocated 100 percent of
the expenses paid or accrued by the Partnership and properly allocable
to items of Profit (or Loss) allocated to such Partner pursuant to
Sections 3.4(b)(i) and (ii);
(iv) Items of expense attributable to the CDU Note Interest
Service shall be allocated 100 percent to the CDU Trust and items of
expense attributable to the CUB Note Interest Service shall be
allocated 100 percent to the CUB Trust;
(v) All Custodian Fees shall be allocated 50% to the CDU Trust
and 50% to the CUB Trust;
(vi) All other items of Profit or Loss shall be allocated to
and among the Partners in accordance with their Percentage Interests at
the time of the allocation, in a manner consistent with the sharing of
the related income and expense items as set forth in Sections
3.6(b)(ii) and 3.6(b)(iv).
(c) REGULATORY ALLOCATIONS. The following allocations shall, except as
otherwise provided, be made prior to allocations in Section 3.4(b) in the
following order:
(i) MINIMUM GAIN CHARGEBACK. Notwithstanding any other
provision of this Section 3.4, if there is a net decrease in
Partnership Minimum Gain or in any Partner Minimum Gain during any
Fiscal Year or other period, prior to any other allocation pursuant
hereto, each Partner shall be specifically allocated items of
Partnership income and gain for such year (and, if necessary,
subsequent years) in an amount and manner required by Treas.
Reg.ss.ss.1.704-2(f) and 1.704-2(i)(4). The items to be so allocated
shall be determined in accordance with Treas. Reg.ss.1.704-2(j)(2).
(ii) QUALIFIED INCOME OFFSET. In the event any Partner
unexpectedly receives any adjustments, allocations, or distributions
described in Treas. Reg. ss. 1.704-1(b)(2)(ii)(d)(4), (5) or (6), items
of Partnership income and gain shall be specially allocated to each
such Partner in an amount and manner sufficient to eliminate, to the
extent required by the Treas. Regs., the Adjusted Capital Account
Deficit of such Partner as quickly as possible, provided that an
allocation pursuant to this Section 3.4(c)(ii) shall be made only if
and to the extent that such Partner would have an Adjusted Capital
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Account Deficit after all other allocations provided for in this
Section 3.4 have been tentatively made as if this Section 3.4(c)(ii)
were not in this Agreement.
(iii) PARTNERSHIP NONRECOURSE DEDUCTIONS. Partnership
Nonrecourse Deductions for any Fiscal Year shall be specially allocated
to the Partners in proportion to their Percentage Interests.
(iv) PARTNER NONRECOURSE DEDUCTIONS. Any Partner Nonrecourse
Deductions for any Fiscal Year shall be specially allocated to the
Partner who bears the economic risk of loss with respect to the Partner
Nonrecourse Debt to which such Partner Nonrecourse Deductions are
attributable in accordance with Treas. ▇▇▇.▇▇. 1.704-2(i)(1).
(d) CURATIVE ALLOCATIONS. The allocations set forth in Sections
3.4(c)(i) to (iv) hereof (the "Regulatory Allocations") are intended to comply
with certain requirements of the Treas. Regs. It is the intent of the Partners
that, to the extent possible, all Regulatory Allocations shall be offset either
with other Regulatory Allocations or with special allocations of other items of
Partnership income, gain, loss or deduction pursuant to this Section 3.4(c).
Therefore, notwithstanding any other provision of Section 3.4 (other than the
Regulatory Allocations), the Partnership shall make such offsetting special
allocations of Partnership income, gain, loss or deduction in whatever manner it
determines appropriate (taking into consideration the character of the Profits
and Loss and any item thereof that were originally allocated pursuant to Section
3.4(b)) so that, after such offsetting allocations are made (and after taking
into account offsetting Regulatory Allocations expected to be made), each
Partner's Capital Account balance is, to the extent possible, equal to the
Capital Account balance such Partner would have had if the Regulatory
Allocations were not part of this Agreement and all Partnership items were
allocated pursuant to Section 3.4(b) hereof.
(e) OTHER ALLOCATION RULES.
For purposes of determining items allocable to any period, any such
items shall be determined on a daily, monthly, or other basis, as determined by
the Partnership using any permissible method under Code Section 706 and the
Treas. Regs. thereunder. Notwithstanding the foregoing, with respect to any
Fiscal Year during which any Partner's Percentage Interest changes, whether by
reason of the admission of a Partner a contribution to or distribution by the
Partnership or any other event described in Code Section 706(d)(1) and the
Treas. Regs. thereunder, any items thereof shall be allocated appropriately to
take into consideration the varying interests of the Partners during such Fiscal
Year.
3.5 TAX ALLOCATIONS: CODE SECTION 704(C).
(a) Income, gain, loss, and deduction with respect to any property
contributed to the capital of the Partnership or revalued pursuant to Treas.
▇▇▇.▇▇. 1.704-1(b)(2)(iv)(f), shall, solely for U.S. tax purposes, be allocated
among the Partners so as to take account of any variation between the adjusted
basis of such property to the Partnership for Federal income tax purposes and
its initial or reset Gross Asset Value in accordance with the principles of Code
Section 704(c) and the Treas. Regs. thereunder and Treas. ▇▇▇.▇▇.
1.704-1(b)(4)(i) using any reasonable
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method required or permitted thereunder and selected by the General Partner in
its sole discretion.
(b) Subject to Section 3.5(a), if any gain (as computed for tax
purposes) on the sale or other disposition of Partnership property shall
constitute recapture of depreciation under Section 291, 1245 or 1250 of the Code
or any similar provision, such gain shall (to the extent possible) be divided
among the Partners in accordance with the principles of Treas. Reg. ss.
1.1245-1(e)(2) (i.e., generally in proportion to the depreciation deductions
previously claimed by them giving rise to such recapture), provided that this
Section 3.5(b) shall not affect the amount of gain otherwise allocable to a
Partner.
(c) Allocations pursuant to this Section 3.5 are solely for purposes of
U.S. Federal, state, and local taxes and shall not affect any Partner's Capital
Account or share of Profits or Loss or any amount distributable to any Partner
hereunder.
3.6 DISTRIBUTIONS.
(a) Distributions shall be made at such time or times as the General
Partner determines, but, except for Distributions described in Section 3.6(c)
below, not less frequently than semi-annually.
(b) Distributions shall be made to each Partner in the full amount of
such Partner's share of Distributable Cash. A Partner's share of Distributable
Cash shall be equal to:
(i) The cash portion of all Net Proceeds From Shares
(including the non-cash portion thereof later converted into cash by
the Partnership) with respect to (a) Initial Shares originally
contributed by such Partner, (b) Undistributed Additional Shares
received by the Partnership on Initial Shares originally contributed by
such Partner (or on Replacement Shares received by the Partnership in
exchange for (i) Initial Shares contributed by such Partner, or (ii)
Replacement Shares attributable to such Partner's Initial Shares),
and/or (c) Replacement Shares received by the Partnership in exchange
for (i) Initial Shares originally contributed by such Partner, or (ii)
Replacement Shares attributable to such Partner's Initial Shares;
increased by
(ii) The Partner's Percentage Interest of the cash portion of
Incidental Proceeds; and decreased by
(iii) The Partner's Percentage Interest of Incidental
Expenses; and
(iv) In the case of distributions to the (i) CDU Trust,
decreased by the CDU Note Principal Service, the CDU Note Interest
Service and the CDU Trust's share of the Custodian Fees; and (ii) CUB
Trust, decreased by the CUB Note Principal Service, the CUB Note
Interest Service and the CUB Trust's share of the Custodian Fees.
(c) Except as provided in (e) below, the Partnership may, at the
General Partner's sole discretion, distribute all or a portion of the Additional
Shares and/or the Replacement Shares to the Partners.
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(i) In the event of a distribution pursuant to this Section
3.6(c), distributable Additional Shares and Replacement Shares which
are received by the Partnership with respect to or in exchange for (i)
Initial Shares originally contributed by a Partner and/or (ii)
Replacement Shares which were received by the Partnership in exchange
for Initial Shares originally contributed by such Partner, shall be 100
percent credited to such Partner.
(d) The General Partner may, in its sole discretion, make an in-kind
redemption of a Partner's Partnership Interests.
(e) The Partnership shall distribute (or use to make payments described
in Section 3.6(b)(iv)), on a quarterly basis, all of the Additional Shares
received by the Partnership pursuant to a Dividend Reinvestment Plan.
ARTICLE IV
MANAGEMENT
4.1 RIGHTS, DUTIES AND POWERS OF THE GENERAL PARTNER.
(a) Subject to the terms and conditions of this Agreement, the General
Partner shall have complete and exclusive responsibility for managing and
administering the affairs of the Partnership, and shall have the power and
authority to do all things necessary or proper to carry out its duties
hereunder.
(b) Without limiting the generality of the General Partner's duties and
obligations hereunder, the General Partner shall have full power and authority:
(i) to open, maintain and close bank accounts and custodial
accounts for the Partnership and draw checks and other orders for the
payment of money;
(ii) to pay all expenses relating to the organization of the
Partnership (including attorneys' fees);
(iii) to engage such attorneys, accountants and other
professional advisers and consultants as the General Partner may deem
necessary or advisable for the affairs of the Partnership;
(iv) to commence or defend litigation that pertains to the
Partnership or any Partnership assets;
(v) to cause the Partnership, if and to the extent the General
Partner deems such insurance advisable, to purchase or bear the cost of
any insurance covering the potential liabilities of the Partnership,
the General Partner and their partners, officers, employees and agents;
(vi) in the normal course of the Partnership's business and
for any Partnership purpose, including without limitation payment of
the Partnership's operating expenses, to
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cause the Partnership to borrow money and make, issue, accept, endorse
and execute promissory notes, drafts, bills of exchange, guarantees and
other instruments and evidences of indebtedness, and secure the payment
thereof by mortgage, pledge or assignment of or security interest in
all or any part of the securities and other property then owned or
thereafter acquired by the Partnership;
(vii) subject to the other terms and provisions of this
Agreement, to execute, deliver and perform such contracts, agreements
and other undertakings, and to engage in all activities and
transactions, as it may deem necessary or advisable for, or as may be
incidental to, the conduct of the business contemplated by this Section
4.1, including, without in any manner limiting the generality of the
foregoing, contracts, agreements, undertakings and transactions with
any Partner or with any other person, firm or corporation having any
business, financial or other relationship with any Partner or Partners;
and
(viii) to make all decisions, in its sole and absolute
discretion, with respect to the Initial Shares (and, if applicable,
Additional Shares and/or Replacement Shares), including, without
limitation, as to when and how the Initial Shares (and, if applicable,
Additional Shares and/or Replacement Shares), are to be voted, as to
when and which Initial Shares (and, if applicable, Additional Shares
and/or Replacement Shares)(whether in specific lots designated by the
General Partner or not), held by the Partnership are to be sold, the
amount and price at which Initial Shares (and, if applicable,
Additional Shares and/or Replacement Shares), are to be sold, the
selection of and commissions paid to brokers selling any Initial Shares
(and, if applicable, Additional Shares and/or Replacement Shares) and
whether pro rata sales and distributions will be made for one or more
Partners.
(c) The General Partner shall be the tax matters partner for purposes
of Section 6231(a)(7) of the Code. The General Partner shall have the exclusive
authority and discretion to make any elections required or permitted to be made
by the Partnership under any provisions of the Code or any other revenue laws.
The General Partner shall cause the preparation and timely filing of all tax
returns required to be filed by the Partnership pursuant to the Code and all
other tax returns deemed necessary and required in each state or other
jurisdiction. Copies of those returns, or pertinent information from the
returns, shall be furnished to the Partners within a reasonable time after the
end of the Partnership's fiscal year.
4.2 DELEGATION OF DUTIES
(a) The General Partner may delegate to any person or persons any of
the duties, powers and authority vested in it hereunder on such terms and
conditions as it may consider appropriate.
(b) The General Partner shall have the power and authority to appoint
any person, including any person who is a Limited Partner, to provide services
to, and act as an agent of, the Partnership, with such titles and duties as may
be specified by the General Partner. Any person appointed by the General Partner
to serve as an agent of the Partnership shall be subject to
14
removal at any time at the discretion of the General Partner, and shall report
to and consult with the General Partner at such times and in such manner as the
General Partner may direct.
(c) The General Partner in its sole discretion may provide for payment
of salaries to employees of the Partnership, including Partners. Any such
payments shall be treated on the books of the Partnership as an expense of the
Partnership (and not as a distribution to Partners) for the purposes of the
determination of Profits or Loss From Operations and shall not be deducted from
the Capital Account of a Partner receiving any such payment.
4.3 RIGHTS OF LIMITED PARTNERS.
Except as otherwise provided in this Agreement, the Limited Partners
shall take no part in the management or control of the Partnership's business.
Limited Partners shall have no right or authority to act for the Partnership or
to vote on matters other than the matters set forth in this Agreement or as
required by applicable law. Except as otherwise provided by law, the liability
of each Limited Partner is limited to the amount of his capital contributions
(plus any accretions in value thereto).
4.4 ACTIVITIES OF GENERAL PARTNER.
The General Partner shall not be required to devote full time to the
affairs of the Partnership, but shall devote such time as may be reasonably
required therefore.
4.5 INDEMNIFICATION OF GENERAL PARTNER
The General Partner, its officers, directors, shareholders, agents and
representatives and anyone designated to wind up the affairs of the Partnership
pursuant to Section 6.1 (the "Liquidator") shall not be liable to the
Partnership or the Limited Partners for any act or failure to act relating, in
any way to the Partnership, its assets, business or affairs so long as such act
or failure to act does not constitute such person's willful misconduct, bad
faith or gross negligence or reckless disregard of the duties involved in the
conduct of the Partnership or such Person's office. The General Partner, each of
its officers, directors, shareholders, agents and representatives and the
Liquidator shall be indemnified by the Partnership to the fullest extent
permitted by law for any and all losses, claims, damages and expenses arising
out of or incurred in connection with any claim, action or demand against the
General Partner, the Partnership or any such indemnified person relating to the
Partnership, its assets, business or affairs (including, without limitation,
attorneys' fees and expenses and any amounts paid in settlement or compromise of
any such claim, action or demand); provided, however, that the foregoing
indemnification shall not apply to the extent that a court of competent
jurisdiction makes a final decision that such claim, action or demand resulted
directly from such indemnified person's willful misconduct, bad faith, gross
negligence or reckless disregard of the duties involved in the conduct of the
Partnership or such person's office or duties.
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ARTICLE V
ADMISSIONS, TRANSFERS AND WITHDRAWALS
5.1 ADMISSION OF LIMITED PARTNERS.
The General Partner may, but shall not be required to, admit additional
Limited Partners at any time, in which event the required capital contribution
of any such additional Limited Partner shall be determined by the General
Partner, subject to Section 3.1(b).
5.2 ADMISSION OF ADDITIONAL GENERAL PARTNER.
The General Partner may, but shall not be required to, admit one or
more additional general partners, who may be natural persons, partnerships or
companies, to the Partnership.
5.3 TRANSFER OF INTERESTS OF LIMITED PARTNERS.
No transfer or assignment of, or pledge of, or grant of a security
interest in, any Limited Partner's interest in the Partnership, whether
voluntary or involuntary, shall be valid or effective, and no transferee shall
become a substituted Limited Partner, unless the prior written consent of the
General Partner has been obtained, which consent may be granted or refused in
its sole discretion. Until approved by the General Partner, any successor to the
interest of a Limited Partner shall be entitled to the allocations and
distributions attributable to such interest and to withdraw such interest as
provided in Section 5.5 but shall not have any of the other rights of a Limited
Partner.
5.4 TRANSFER OF INTEREST OF GENERAL PARTNER.
The General Partner may transfer its interest as General Partner in the
Partnership to another Person in its sole and absolute discretion.
5.5 WITHDRAWAL OF INTERESTS OF PARTNERS.
The interest of a Partner in the Partnership may not be withdrawn from
the Partnership prior to its dissolution.
ARTICLE VI
LIQUIDATION
6.1 LIQUIDATION OF PARTNERSHIP ASSETS.
(a) Upon dissolution of the Partnership, the General Partner shall
promptly liquidate the business and administrative affairs of the Partnership,
except that if the General Partner is unable to perform this function, or is
unable to assign this function to another Person, a liquidator elected by
Limited Partners whose Percentage Interests represent a majority of the total
Percentage Interests of the Limited Partners shall liquidate the business and
administrative affairs of the Partnership. The proceeds from liquidation shall
be divided in the following manner:
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(i) the debts, liabilities and obligations of the Partnership,
other than debts to Partners, and the expenses of liquidation
(including legal and accounting expenses incurred in connection
therewith), up to and including the date that distribution of the
Partnership's assets to the Partners has been completed, shall first be
paid;
(ii) such debts as are owing to the Partners shall next be
paid; and
(iii) the Partners shall next be paid amounts in accordance
with their Percentage Interest, and up to the positive balances of
their respective Capital Accounts, as adjusted pursuant to Article III
to reflect allocations for the Fiscal Year ending on the date of the
distributions under this Section 6.1(a)(iii).
(b) Anything in this Section 6.1 to the contrary notwithstanding, the
General Partner or liquidator may distribute in-kind rather than in cash, upon
dissolution, any assets of the Partnership; provided, however, that if any
in-kind distribution is to be made, (i) the assets distributed in kind shall be
valued as of the actual date of their distribution, and charged as so valued and
distributed against amounts to be paid under Section 6.1(a) above, and (ii) any
gain or loss (as computed for book purposes) attributable to property
distributed in-kind shall constitute Profit or Loss or items specially allocable
to a Partner pursuant to Section 3.4 hereof for the Fiscal Year including the
date of such distribution.
(c) In determining the value of the assets of the Partnership upon a
liquidation pursuant this Section 6.1, no value shall be placed on the goodwill
or name of the Partnership, or the office records, files, statistical data or
any similar intangible assets of the Partnership.
6.2 EXPENSES OF LIQUIDATOR(S).
(a) The expenses incurred by the liquidator(s) in connection with
winding up the Partnership, all other losses or liabilities of the Partnership
incurred in accordance with the terms of this Agreement, and reasonable
compensation for the services of the liquidator(s) shall be borne by the
Partnership.
(b) If the General Partner serves as the liquidator, it shall not be
entitled to compensation for providing such services.
6.3 DURATION OF LIQUIDATION.
A reasonable time shall be allowed for the winding up of the affairs of
the Partnership in order to minimize any losses otherwise attendant upon such a
winding up.
6.4 NO LIABILITY FOR RETURN OF CAPITAL.
The General Partner and its affiliates shall not be personally liable
for the return of the Capital Contributions of any Partner, and such return
shall be made solely from available assets of the Partnership, if any, and each
Limited Partner hereby waives any and all claims it may have against the General
Partner or any of its affiliates in this regard.
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ARTICLE VII
ACCOUNTING;
BOOKS AND RECORDS
7.1 ACCOUNTING AND REPORTS.
(a) The Partnership shall adopt for tax accounting purposes the cash
basis accounting method unless the General Partner shall decide in its sole
discretion that it is in the best interests of the Partnership to adopt another
method permissible for U.S. Federal income tax purposes.
(b) As soon as practicable after the end of each Fiscal Year, the
General Partner shall furnish to each Limited Partner such information as may be
required to enable each Limited Partner properly to report for Federal and state
income tax purposes his distributive share of each Partnership item of income,
gain, loss, deduction or credit for such year.
7.2 DETERMINATIONS BY GENERAL PARTNER.
All matters concerning the determination and allocation among the
Partners of the amounts to be determined and allocated pursuant to Section 3.4
hereof, and the items of income, gain, deduction, loss and credit to be
determined and allocated pursuant to Section 3.4 hereof, including any taxes
thereon and accounting procedures applicable thereto, shall be determined by the
General Partner unless specifically and expressly otherwise provided for by the
provisions of this Agreement, and such determinations and allocations shall be
final and binding on all the Partners.
7.3 BOOKS AND RECORDS.
(a) The General Partner shall keep books and records, including copies
of the Partnership's Federal, state and local income tax returns and reports, if
any, for the four most recent years, pertaining to the Partnership's affairs
showing all of its assets and liabilities, receipts and disbursements, realized
income, gains and losses, Partners' Capital Accounts and all transactions
entered into by the Partnership. Such books and records of the Partnership shall
be kept at its principal office, and all Partners and their representatives
shall at all reasonable times have free access thereto for the purpose of
inspecting or copying the same.
(b) If the Partnership is required to withhold and pay over Federal
income tax or estimated tax with respect to income or gain allocable to any
Partner, the General Partner shall withhold and pay over such amounts as are
required. Such withholdings shall be treated as distributions to the Partners on
whose behalf they are made. To the extent that a Partner's allocable share of
otherwise distributable cash under Section 3.6(b) is not sufficient to satisfy
the withholding obligation with respect to such Partner, the General Partner
shall require such Partner promptly to advance the amount of such deficiency to
the Partnership for withholding. Such advance shall not affect the advancing
Partner's ownership interest in the Partnership, and the payment by the
Partnership of the advanced amount to the appropriate taxing authority shall not
affect the amount of cash distributions to which the advancing Partner would
otherwise be entitled. If a Partner fails to advance any amount required
hereunder, the General Partner shall have the right to borrow on behalf of such
Partner the amount of the required withholding, to
18
withhold all distributions from the defaulting Partner until the amount of such
borrowing, interest and expenses shall have been reimbursed, and to take
whatever additional steps are necessary to preserve the financial integrity of
the Partnership and to prevent the imposition of any liability on the
Partnership or the General Partner for failure to comply with any requirement
associated with its obligations to withhold.
(c) The General Partner may require the Partners to execute such
certifications, consents or other documents as are required to comply with its
tax reporting and withholding obligations.
ARTICLE VIII
GENERAL PROVISIONS
8.1 AMENDMENT OF PARTNERSHIP AGREEMENT.
This Agreement may be amended, in whole or in part, only by the General
Partner.
8.2 VOTING.
Except as set forth herein, the Limited Partners of the Partnership
shall have no voting rights.
8.3 POWER OF ATTORNEY.
Each Limited Partner hereby constitutes and appoints the General
Partner, with full power of substitution, as his, her or its true and lawful
attorney-in-fact and empowers and authorizes such attorney, in the name, place,
and stead of such Limited Partner, to make, execute, sign, swear to,
acknowledge, and file in all necessary or appropriate places all documents (and
all amendments or supplements to or restatements of such documents necessitated
by valid amendments to or actions permitted under this Agreement) relating to
the Partnership and its activities, including, without limitation: (a) this
Agreement and any amendments thereto approved as provided in this Agreement, (b)
the Certificate of Limited Partnership and any amendments thereto, under the
laws of the State of Delaware or in any other state or jurisdiction in which
such filing is deemed advisable by such General Partner, (c) any applications,
forms, certificates, reports, or other documents, or amendments thereto which
may be requested or required by any federal, state, or local governmental
agency, securities exchange, securities association, self-regulatory
organization, or similar institution and which are deemed necessary or advisable
by the General Partner, (d) any other instrument which may be required to be
filed or recorded in any state or county or by any governmental agency, or which
the General Partner deems advisable to file or record, including, without
limitation, certificates of assumed name and documents to qualify foreign
limited partnerships in other jurisdictions, (e) any documents which may be
required to effect the continuation of the Partnership, the admission of new
Partners, or the dissolution and termination of the Partnership, (f) making
certain elections contained in the Code or state law governing taxation of
limited partnerships, and (g) performing any and all other ministerial duties or
functions necessary for the conduct of the business of the Partnership. Each
Limited Partner hereby ratifies, confirms, and adopts as his own, all actions
that may be taken by such attorney-in-fact pursuant to this Section 8.3 Each
Limited Partner acknowledges
19
that this Agreement permits certain amendments to be made and certain other
actions to be taken or omitted to be taken without a vote of the Limited
Partners. By their execution hereof, each Limited Partner also grants the
General Partner a power of attorney to execute any and all documents necessary
to reflect any action that is approved in accordance with the provisions hereof;
provided, however, that the GP may not without the prior written consent of each
of the Limited Partners, materially modify the provisions of Article III hereof.
This power of attorney is coupled with an interest and shall continue
notwithstanding the subsequent incapacity or death of the Limited Partner. Each
Limited Partner shall execute and deliver to the General Partner an executed and
appropriately notarized power of attorney in such form consistent with the
provisions of this Section 8.3 as the General Partner may request.
8.4 NOTICES.
Notices which may or are required to be given under this Agreement by
any party to another shall be given by hand delivery or by registered or
certified mail, return receipt requested, and shall be addressed to the
respective parties hereto at their addresses as set forth on Schedule A hereto
or to such other addresses as may be designated by any party hereto by notice
addressed to the General Partner in the case of notice given by any Limited
Partner, and to each of the Limited Partners in the case of notice given by the
General Partner. Notices shall be deemed to have been given when delivered by
hand or on the date indicated as the date of receipt on the return receipt.
8.5 AGREEMENT BINDING UPON SUCCESSORS AND ASSIGNS.
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors, but the rights and obligations
of any Partner hereunder shall not be assignable, transferable or delegable
except as provided in Sections 5.2, 5.3 and 5.4, and any attempted assignment,
transfer or delegation thereof which is not made pursuant to the terms of
Section 5.2, 5.3 or Section 5.4 shall be void.
8.6 GOVERNING LAW.
This Agreement, and the rights of the Partners hereunder, shall be
governed by and construed in accordance with the laws of the State of Delaware,
without regard to the conflict of laws rule thereof. The parties hereby consent
to exclusive jurisdiction and venue for any action arising out of this Agreement
in any state or Federal court sitting in the County of Westchester, in the State
of New York. Each Partner consents to service of process in any action arising
out of this Agreement by the mailing thereof by registered or certified mail,
return receipt requested, to such Partner's address set forth in the Schedule of
Partners. In any action to enforce any provision of this Agreement, the
prevailing party shall be entitled to recover all expenses, including reasonable
attorneys fees, incurred in connection therewith.
8.7 NOT FOR BENEFIT OF CREDITORS.
The provisions of this Agreement are intended only for the regulation
of relations among Partners and between Partners and former or prospective
Partners and the Partnership. This Agreement is not intended for the benefit of
non-Partner creditors and no rights are granted to non-Partner creditors under
this Agreement.
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8.8 COUNTERPARTS
This Agreement may be executed in several counterparts, all of which
together shall constitute one agreement binding on all parties hereto,
notwithstanding that not all the parties have signed the same counterpart. The
General Partner may execute any document by facsimile signature of a duly
authorized officer or director.
8.9 SEPARABILITY OF PROVISIONS.
If for any reason any provision or provisions hereof are determined to
be invalid and contrary to any existing or future law, such invalidity shall not
impair the operation of or affect those portions of this Agreement that are
valid.
8.10 ENTIRE AGREEMENT.
This Agreement constitutes the entire agreement among the parties. This
Agreement supersedes any prior agreement or understanding among the parties and
may not be modified or amended in any manner other than as set forth herein.
8.11 CONSENTS.
Any and all consents, agreements or approvals provided for or permitted
by this Agreement shall be in writing and a signed copy thereof shall be filed
and kept with the books of the Partnership.
8.12 CAPTIONS AND TITLES.
The captions and titles preceding the text of each Section hereof shall
be disregarded in the construction of this Agreement.
8.13 COSTS AND EXPENSES; FEES OF THE GENERAL PARTNER.
(a) The Partnership shall reimburse the General Partner for all
operating costs and expenses reasonably incurred on behalf of the Partnership,
including without limitation, salaries of employees, administrative expenses,
consulting fees, and legal, accounting and other professional services. The
Partners shall share in such costs and expenses in proportion to their
respective Percentage Interests.
(b) The General Partner shall be entitled to reasonable annual
compensation as established by the General Partner for services performed as
General Partner of the Partnership, after taking into account the facts and
circumstances as exist from time to time.
8.14 INDEMNIFICATION OF PARTNERS BY THE CDU TRUST AND THE CUB TRUST WITH
RESPECT TO THE CDU NOTE AND THE CUB NOTE.
(a) The Partners acknowledge that the Initial Shares being contributed
by (i) the CDU Trust are subject to that certain Stock Pledge Agreement dated
April 26, 1994, by the CDU Trust as Pledgor to UPCO as Pledgee, as amended (the
"CDU Pledge Agreement"), in order to secure
21
the obligations of the CDU Trust under the CDU Note, and (ii) the CUB Trust are
subject to that certain Stock Pledge Agreement dated April 26, 1994, by the CUB
Trust as Pledgor to UPCO as Pledgee, as amended (the "CUB Pledge Agreement"), in
order to secure the obligations of the CUB Trust under the CUB Note. The
Partners also acknowledge and agree that (i) the Partnership will assume, on a
non-recourse basis, the obligations of the CDU Trust under the CDU Note
(although the CDU Trust will remain liable for its obligations under the CDU
Note), (ii) the Partnership will assume, on a non-recourse basis, the
obligations of the CUB Trust under the CUB Note (although the CUB Trust will
remain liable for its obligations under the CUB Note), (iii) the Initial Shares
contributed to the Partnership by the CDU Trust will remain subject to the CDU
Pledge Agreement, and (iv) the Initial Shares contributed to the Partnership by
the CUB Trust will remain subject to the CUB Pledge Agreement.
(b) The (i) CDU Trust, with respect to the CDU Note, and (ii) CUB
Trust, with respect to the CUB Note, hereby agrees to indemnify the Partnership
and each other Partner and hold them harmless from any and all losses,
liabilities, costs and expenses (including reasonable legal fees and expenses)
suffered or incurred by any such indemnified party to the extent arising from
the CDU Note or the CUB Note, as applicable.
24
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
GENERAL PARTNER:
URSTADT PROPERTY COMPANY, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Senior Vice President
LIMITED PARTNERS:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ IRREVOCABLE TRUST
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Trustee
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ IRREVOCABLE TRUST
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Trustee
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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ANNEX A
CAPITAL CONTRIBUTIONS
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SHARES OF UBP SHARES OF UBP CLASS A
PARTNER COMMON STOCK COMMON STOCK CASH
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UPCO 10,000 - $14,580
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CDU TRUST 821,975 78,025 -
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CUB TRUST 821,975 78,025 -
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 50,000 4,750 -
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 50,000 4,750 -
--------------------------------------------------------------------------------
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ANNEX B
AGREED VALUE OF CONTRIBUTED SHARES
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SHARES OF UBP
SHARES OF UBP CLASS A COMMON DEBT ASSUMED BY PERCENTAGE OF
PARTNER COMMON STOCK STOCK PARTNERSHIP NET VALUE CASH TOTAL NET VALUE
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UPCO $[______] - - $[______] $14,580 1.0%
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CDU TRUST $[______] $[______] $5,356,247 $[______] - 44.6%
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CUB TRUST $[______] $[______] $5,356,247 $[______] - 44.6%
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ $[______] $[______] - $[______] - 4.9%
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ $[______] $[______] - $[______] - 4.9%
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