1
EXHIBIT 10.1
▇▇▇▇▇▇▇ OPERATING LIMITED PARTNERSHIP
AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
2
▇▇▇▇▇▇▇ OPERATING LIMITED PARTNERSHIP
AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
TABLE OF CONTENTS
Page
----
1. Definitions and Exhibits . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Exhibits, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
2. Organization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
2.1 Formation of Partnership . . . . . . . . . . . . . . . . . . . . . . 11
2.2 Partnership Name . . . . . . . . . . . . . . . . . . . . . . . . . . 11
2.3 Location of the Principal Place of Business . . . . . . . . . . . . . 11
2.4 Registered Agent and Registered Office . . . . . . . . . . . . . . . 11
3. Capital . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
3.1 Issuance of Units . . . . . . . . . . . . . . . . . . . . . . . . . . 11
3.2 Redemption Right . . . . . . . . . . . . . . . . . . . . . . . . . . 13
3.3 Additional Capital . . . . . . . . . . . . . . . . . . . . . . . . . 14
3.4 No Third Party Beneficiary . . . . . . . . . . . . . . . . . . . . . 14
3.5 Capital Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . 15
3.6 No Interest on or Return of Capital . . . . . . . . . . . . . . . . . 16
3.7 Negative Capital Accounts . . . . . . . . . . . . . . . . . . . . . . 16
3.8 Limit on Contributions and Obligations of Partner . . . . . . . . . . 16
4. [Intentionally Omitted] . . . . . . . . . . . . . . . . . . . . . . . . . 16
5. Purpose and Powers of Partnership . . . . . . . . . . . . . . . . . . . . 16
6. Term . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
7. Allocations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
7.1 Profits or Losses . . . . . . . . . . . . . . . . . . . . . . . . . . 18
7.2 Special Allocations . . . . . . . . . . . . . . . . . . . . . . . . . 18
7.3 Other Allocation Rules . . . . . . . . . . . . . . . . . . . . . . . 19
7.4 Tax Allocations; Code Section 704(c)/Section 1245 and 1250 Recapture. 20
7.5 Nonrecourse Liabilities . . . . . . . . . . . . . . . . . . . . . . . 20
8. Cash Available For Distribution . . . . . . . . . . . . . . . . . . . . . 21
8.1 Operating Cash Flow . . . . . . . . . . . . . . . . . . . . . . . . . 21
8.2 Capital Cash Flow . . . . . . . . . . . . . . . . . . . . . . . . . . 21
(i)
3
Page
----
8.3 Consolidated Distributed Cash . . . . . . . . . . . . . . . . . . . . 21
8.4 Distributions to Partners . . . . . . . . . . . . . . . . . . . . . . 21
8.5 Distributions to Limited Partners as a Class . . . . . . . . . . . . 22
8.6 REIT Distributions . . . . . . . . . . . . . . . . . . . . . . . . . 22
8.7 Consent to Distributions . . . . . . . . . . . . . . . . . . . . . . 22
8.8 Liquidating Distributions . . . . . . . . . . . . . . . . . . . . . . 22
8.9 Special Distribution and Allocations for Certain Properties . . . . . 22
9. Management of Partnership . . . . . . . . . . . . . . . . . . . . . . . . 23
9.1 General Partner . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
9.2 [Intentionally Omitted] . . . . . . . . . . . . . . . . . . . . . . . 25
9.3 Limitations on Powers and Authorities of Partners . . . . . . . . . . 25
9.4 Title Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
9.5 Compensation of the General Partner . . . . . . . . . . . . . . . . . 26
9.6 Standard of Conduct . . . . . . . . . . . . . . . . . . . . . . . . . 26
9.7 Waiver and Indemnification . . . . . . . . . . . . . . . . . . . . . 27
9.8 Other Activities of Partners and Agreements with Related Parties . . 27
9.9 Other Matters Concerning the General Partner . . . . . . . . . . . . 28
10. Banking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
11. Accounting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
11.1 Fiscal Year . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
11.2 Books of Account . . . . . . . . . . . . . . . . . . . . . . . . . . 29
11.3 Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
11.4 Audits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
11.5 Method of Accounting . . . . . . . . . . . . . . . . . . . . . . . . 30
11.6 Tax Election . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
11.7 Tax Matters Partner . . . . . . . . . . . . . . . . . . . . . . . . . 30
11.8 Administrative Adjustments . . . . . . . . . . . . . . . . . . . . . 30
12. Transfers of Partnership Interests . . . . . . . . . . . . . . . . . . . . 30
12.1 Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
12.2 Limited Partners . . . . . . . . . . . . . . . . . . . . . . . . . . 31
12.3 Admission Adjustments . . . . . . . . . . . . . . . . . . . . . . . . 32
13. Rights and Obligations of the Limited Partners . . . . . . . . . . . . . . 32
13.1 No Participation in Management . . . . . . . . . . . . . . . . . . . 32
13.2 Death, Legal Incompetency, Etc. of a Limited Partner . . . . . . . . 32
13.3 No Withdrawal . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
13.4 Duties and Conflicts . . . . . . . . . . . . . . . . . . . . . . . . 33
14. Indemnification and Security Interest . . . . . . . . . . . . . . . . . . 33
(ii)
4
Page
----
14.1 [Intentionally Omitted] . . . . . . . . . . . . . . . . . . . . . . . 33
14.2 Indemnity Collateral . . . . . . . . . . . . . . . . . . . . . . . . 33
14.3 Commons of Chicago Ridge . . . . . . . . . . . . . . . . . . . . . . 33
14.4 TTC Guarantors . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
15. Liquidation and Dissolution of Partnership . . . . . . . . . . . . . . . . 37
15.1 Termination Events . . . . . . . . . . . . . . . . . . . . . . . . . 37
15.2 Method of Liquidation . . . . . . . . . . . . . . . . . . . . . . . . 37
15.3 Distribution in Kind . . . . . . . . . . . . . . . . . . . . . . . . 38
15.4 Documentation of Liquidation . . . . . . . . . . . . . . . . . . . . 38
15.5 Liability of the Liquidating Trustee . . . . . . . . . . . . . . . . 38
16. Power of Attorney . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
17. Amendment of Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . 39
17.1 General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
17.2 Merger, Etc. of General Partner . . . . . . . . . . . . . . . . . . . 39
18. Arbitration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
18.1 General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
18.2 Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
18.3 Binding Character . . . . . . . . . . . . . . . . . . . . . . . . . . 41
18.4 Exclusivity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
18.5 No Alteration of Agreement . . . . . . . . . . . . . . . . . . . . . 41
19. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
19.1 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
19.2 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . 42
19.3 Duplicate Originals . . . . . . . . . . . . . . . . . . . . . . . . . 42
19.4 Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
19.5 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
19.6 Other Instruments . . . . . . . . . . . . . . . . . . . . . . . . . . 42
19.7 General Partner with Interest as Limited Partner . . . . . . . . . . 42
19.8 Gender . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
19.9 Prior Agreements Superseded . . . . . . . . . . . . . . . . . . . . . 42
19.10 Purchase for Investment . . . . . . . . . . . . . . . . . . . . . . . 43
19.11 Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
19.12 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
19.13 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
19.14 Notice for Certain Transactions . . . . . . . . . . . . . . . . . . . 43
(iii)
5
EXHIBIT A: Prior Agreement
EXHIBIT B: Name of Partners and Number of Units held by Each Partner under
Prior Agreement
EXHIBIT C: Name of Partners and Number of Units held by Each Partner under
this Agreement
EXHIBIT D: Form of Notice of Redemption
EXHIBIT E: Capital Account of Each Partner
EXHIBIT F: Shares of Common Stock and Units held or beneficially owned by
the TTC Guarantors
EXHIBIT G: Registration Rights Agreement
(iv)
6
▇▇▇▇▇▇▇ OPERATING LIMITED PARTNERSHIP
AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
THIS AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP (the
"Agreement") has been executed and delivered as of ______________, 1996, by and
among ▇▇▇▇▇▇ Properties Corporation, a Maryland corporation ("▇▇▇▇▇▇"), and
those other parties whose names appear on the signature pages hereto.
RECITALS
WHEREAS, the Partnership was formed as a limited partnership under the
name "▇▇▇▇▇▇ Operating Limited Partnership" in accordance with the Revised
Uniform Limited Partnership Act of the State of Delaware pursuant to an
Agreement of Limited Partnership dated as of October 4, 1993 (the "Prior
Agreement").
WHEREAS, the original general partner of the Partnership, ▇▇▇▇▇▇, is being
merged with and into ▇▇▇▇▇▇▇ Real Estate, Inc. ("▇▇▇▇▇▇▇"), effective as of the
date hereof (the "Merger").
WHEREAS, in connection with the consummation of the Merger, each
outstanding share of common stock of ▇▇▇▇▇▇ will be converted into the right to
receive a percentage of a share of Common Stock of ▇▇▇▇▇▇▇ in accordance with
the provisions of Section 4.1 of the Agreement and Plan of Merger, dated as of
October 30, 1995, between ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ (the "Merger Agreement").
WHEREAS, the parties hereto wish to amend the Prior Agreement in order,
among other things, to account for the Merger, to make ▇▇▇▇▇▇▇ the General
Partner, to adjust the number of Units (as hereinafter defined) held by each
Partner (as hereinafter defined) in order to maintain the Conversion Factor (as
hereinafter defined) as 1.0, to change the name of the Partnership and to make
certain other changes.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained in this Agreement, and for other good and valuable consideration, the
receipt, adequacy and sufficiency of which are hereby acknowledged, the parties
hereto, intending to be legally bound, agree as follows:
1. Definitions and Exhibits.
-------------------------
1.1 DEFINITIONS. As used in this Agreement, the following terms
shall have the meanings set forth respectively after each:
"Accountants" shall mean the firm or firms of independent certified public
accountants selected by the General Partner on behalf of the Partnership to
audit the books and records of the Partnership and to prepare statements and
reports in connection therewith.
7
"Act" shall mean the Revised Uniform Limited Partnership Act of the State
of Delaware, as amended from time to time, and any successor statute.
"Administrative Expenses" shall mean (i) all administrative and operating
costs and expenses incurred by the Partnership and (ii) those administrative
costs and expenses of the General Partner, including salaries paid to officers
of the General Partner, accounting and legal expenses, the costs and expenses
of preparing reports required to be filed by the General Partner and costs and
expenses incurred in complying with applicable laws, that are undertaken by the
General Partner on behalf of, or for the benefit of, the Partnership.
"Affiliate" shall mean, with respect to any Partner (or as to any other
Person the affiliates of whom are relevant for purposes of any of the
provisions of this Agreement), (i) any member of the Immediate Family of such
Partner or Person; (ii) any trustee or beneficiary of a Partner; (iii) any
legal representative or successor of any Person referred to in the preceding
clauses (i) and (ii); (iv) any trust for the benefit of any Person referred to
in the preceding clauses (i) through (iii); or (v) any Entity which, directly
or indirectly through one or more intermediaries, controls, is controlled by,
or is under common control with, any Person referred to in the preceding
clauses (i) through (iv).
"Affected Gain" shall have the meaning provided in Section 7.4.E hereof.
"Agreement" shall mean this Amended and Restated Agreement of Limited
Partnership, as it may be amended, modified, supplemented or restated from time
to time, as the context requires.
"Audited Financial Statements" shall mean financial statements (balance
sheet, statement of income, statement of partners' equity and statement of cash
flows) prepared in accordance with generally accepted accounting principles and
accompanied by an independent auditor's report containing (i) an opinion
containing no material qualification and (ii) no explanatory paragraph
disclosing information relating to material uncertainties (except as to
litigation) or going concern issues.
"Bankruptcy" of a Partner shall mean (i) the filing by a Partner of a
voluntary petition seeking liquidation, reorganization, arrangement or
readjustment, in any form, of its debts under Title 11 of the United States
Code (or corresponding provisions of future laws) or any other federal or state
insolvency law, or a Partner's filing an answer consenting to or acquiescing in
any such petition, (ii) the making by a Partner of any assignment for the
benefit of its creditors or the admission by a Partner in writing of its
inability to pay its debts as they mature, or (iii) the expiration of ninety
(90) days after the filing of an involuntary petition under Title 11 of the
United States Code (or corresponding provisions of future laws), seeking an
application for the appointment of a receiver for the assets of a Partner, or
an involuntary petition seeking liquidation, reorganization, arrangement or
readjustment of its debts under any other Federal or state insolvency law,
provided that the same shall not have been vacated, set aside or stayed within
such 90-day period.
2
8
"▇▇▇▇▇▇▇ Group" shall mean ▇▇▇▇▇▇▇, the Partnership, the Financing
Partnership, the Financing Corporation, the Management Partnership, the
Management Corporation and any other Entity in which one or more other members
of the ▇▇▇▇▇▇▇ Group has or will have a direct or indirect interest of 50% or
more (by vote or value).
"Capital Account" shall mean the capital account maintained by the
Partnership for each Partner as described in Section 3.5 hereof.
"Capital Cash Flow" shall have the meaning set forth in Section 8.2
hereof.
"Capital Contribution" shall mean, when used with respect to a Partner,
the amount of money or the fair market value of property contributed by a
Partner to the capital of the Partnership pursuant to the terms of this
Agreement, including, without limitation, the provisions of Section 3.1.
"Cash Amount" shall mean an amount of cash equal to the amount (or portion
thereof) of any Current Yield which has not been paid to the Redeeming Partner
pursuant to Section 8.4.A for any prior period, plus the product of (i) the
Current Per Share Market Price of a share of Common Stock on the Valuation
Date, (ii) the number of Units set forth in the Redeeming Partner's Notice of
Redemption, and (iii) the Conversion Factor.
"Certificate" shall mean the Certificate of Limited Partnership filed with
the Secretary of State of the State of Delaware, as such Certificate may be
amended from time to time.
"Charter" shall mean the Charter (as such term is defined in the Maryland
General Corporation Law) of the General Partner, as it may be amended from time
to time.
"Closing Price" on any date shall mean the last sale price of Common
Stock, regular way, or, in case no sale takes place on such day, the average of
the closing bid and asked prices, regular way, in each such case as reported in
the principal consolidated transaction reporting system with respect to the New
York Stock Exchange or, if the Common Stock is not listed or admitted to
trading on the New York Stock Exchange, as reported in the principal
consolidated transaction reporting system with respect to securities listed on
the principal national securities exchange on which the Common Stock is listed
or admitted to trading or, if the Common Stock is not listed or admitted to
trading on any national securities exchange, the last quoted price, or if not
so quoted, the average of the high bid and low asked prices in the
over-the-counter market, as reported by the National Association of Securities
Dealers, Inc. Automated Quotation System or, if such system is no longer in
use, the other principal automated quotations system that may then be in use
or, if the Common Stock is not quoted by any such organization, the average of
the closing bid and asked prices furnished by one or more professional market
makers making a market in the Common Stock selected, from time to time, by the
Board of Directors of the General Partner.
"Code" shall mean the Internal Revenue Code of 1986, as the same may be
amended from time to time, and any successor statute.
3
9
"Common Stock" shall mean the shares of the common stock, par value $0.01
per share, of ▇▇▇▇▇▇▇.
"Commons of Chicago Ridge" shall mean the land and buildings known as the
"Commons of Chicago Ridge" described in Commonwealth Land Title Insurance
Company policy number 174-001172.
"Commons of Chicago Ridge Annex" shall mean the land and buildings known
as the "Commons of Chicago Ridge Annex" described in Chicago Title Insurance
Company policy number 1410007547079EP.
"Consolidated Distributed Cash" shall have the meaning set forth in Section
8.3 hereof.
"Contributing Partner" shall have the meaning set forth in Section 3.1.B
hereof.
"Contribution Agreement(s)" shall have the meaning ascribed to it in the
Prior Agreement.
"Control" shall mean the ability, whether by the direct or indirect
ownership of shares or other equity interests, or by contract or otherwise, to
elect a majority of the directors of a corporation, to select the managing
partner of a partnership, or otherwise to select, or have the power to remove
and then select, a majority of those persons exercising governing authority
over an Entity. In the case of a limited partnership, the sole general
partner, all of the general partners to the extent each has equal management
control or authority, or the managing general partner or managing general
partners thereof shall be deemed to have control of such partnership and, in
the case of a trust, any trustee thereof or any person having the right to
select any such trustee shall be deemed to have control of such trust.
"Conversion Factor" shall mean 1.0, provided that in the event the General
Partner (i) declares or pays a dividend on its outstanding shares of Common
Stock in shares of Common Stock or makes a distribution to all holders of its
outstanding Common Stock in shares of Common Stock; (ii) subdivides its
outstanding shares of Common Stock; or (iii) combines its outstanding shares of
Common Stock into a smaller number of shares of Common Stock, the Conversion
Factor shall be adjusted by multiplying the Conversion Factor by a fraction,
the numerator of which will be the number of issued and outstanding shares of
Common Stock immediately after such dividend, distribution, subdivision or
combination, and the denominator of which will be the actual number of shares
of Common Stock issued and outstanding on the record date for such dividend,
distribution, subdivision or combination, unless the General Partner
concurrently declares, makes or pays an equivalent dividend, distribution,
subdivision or combination of Units such that a Partner would receive the same
Cash Amount or REIT Shares Amount if it exercised its redemption rights under
Section 3.2 after such event as it would have received if it had exercised its
redemption rights immediately prior to such event. Any adjustment to the
Conversion Factor shall become effective immediately after the effective date
of such event retroactive to the record date, if any, for such event.
4
10
"Current Per Share Market Price" on any date shall mean the average of the
Closing Prices for the most recent ten (10) Trading Days ending on such date.
"Current Yield" shall mean, for the period in question, the Consolidated
Distributed Cash for such period multiplied by the Limited Partner Consolidated
Percentage as of the close of such period (it being acknowledged that Current
Yield shall be calculated only for periods as to which holders of Common Stock
have received a distribution with respect to their shares).
"Depreciation" shall mean, for any fiscal year or portion thereof, an
amount equal to the depreciation, amortization or other cost recovery deduction
allowable with respect to an asset for such period for federal income tax
purposes, 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 period,
Depreciation shall be an amount that bears the same relationship to such
beginning Gross Asset Value as the depreciation, amortization or cost recovery
deduction in such period for federal income tax purposes bears to the beginning
adjusted tax basis; provided, however, that if the adjusted basis for federal
income tax purposes of an asset at the beginning of such period is zero,
Depreciation shall be determined with reference to such beginning Gross Asset
Value using any reasonable method selected by the General Partner.
"Entity" shall mean any general partnership, limited partnership,
corporation, joint venture, trust, business trust, limited liability company,
cooperative or association.
"Environmental Claim" shall mean any administrative, regulatory or
judicial action, suit, demand, demand letter, claim, lien, notice of
non-compliance or violation, investigation or proceeding relating in any way to
any Environmental Law or any permit issued under any such Environmental Law
including, without limitation, (i) by governmental or regulatory authorities
for enforcement, cleanup, removal, response, remedial or other actions or
damages pursuant to any applicable Environmental Law, and (ii) by any third
party seeking damages, contribution, indemnification, cost recovery,
compensation or injunctive relief resulting from Hazardous Materials or any
applicable Environmental Law or arising from alleged injury or threat of injury
to health, safety or the environment due the existence of Hazardous Materials
or under any applicable Environmental Law.
"Environmental Laws" shall mean all statutes specifically described in the
definition of Hazardous Materials below and all federal, state and local
environmental health and safety statutes, ordinances, codes, rules,
regulations, orders and decrees regulating, relating to or imposing liability
or standards concerning or in connection with Hazardous Materials or any
applicable common law right of action concerning or in connection with the
Hazardous Materials.
"Financing Corporation" shall mean ▇▇▇▇▇▇▇ Financing Corporation, a
Delaware corporation, which was formerly ▇▇▇▇▇▇ Financing Corporation.
"Financing Partnership" shall mean ▇▇▇▇▇▇▇ Financing Partnership, a
Delaware general partnership, which was formerly ▇▇▇▇▇▇ Financing Partnership.
5
11
"General Partner" shall mean ▇▇▇▇▇▇▇, its duly admitted successors and
assigns and any other person who is a general partner at the time referenced.
"Gross Asset Value" shall mean, with respect to any asset of the
Partnership or any other member of the ▇▇▇▇▇▇▇ Group, the asset's adjusted
basis for federal income tax purposes, except as follows:
(i) The initial Gross Asset Value of any asset contributed
to the Partnership or any other member of the ▇▇▇▇▇▇▇ Group shall be the gross
fair market value of such asset, as determined by the General Partner;
(ii) The Gross Asset Value of all Partnership and other
▇▇▇▇▇▇▇ Group assets shall be adjusted to equal their respective gross fair
market values, as determined by the General Partner, as of the following times:
(a) the date of this Agreement; (b) 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; (c) 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; (d) the liquidation of the
Partnership within the meaning of Regulations Section 1.704-1(b)(2)(ii)(g); (e)
the acquisition of an additional equity interest in any member of the ▇▇▇▇▇▇▇
Group in exchange for more than a DE MINIMUS contribution to such group member
(such as an issuance of additional shares by the General Partner); (f) the
distribution by any ▇▇▇▇▇▇▇ Group member to one or more of its members of more
than a DE MINIMUS amount of property as consideration for an equity interest in
such group member; and (g) the liquidation of any member of the ▇▇▇▇▇▇▇ Group;
provided, however, that (x) adjustments pursuant to clauses (b) - (g) above
shall be made only if the General Partner reasonably determines that such
adjustments are necessary or appropriate to maintain Capital Accounts and
provide for allocations of Profits and Losses that reflect the relative
economic interests of the Partners in the Partnership and (y) the hypothetical
liquidation required under Section 7.1 of this Agreement for purposes of
allocating Profits and Losses shall not be treated as a liquidation of the
Partnership or any other ▇▇▇▇▇▇▇ Group member for purposes of the foregoing
provisions of this clause (ii).
(iii) The Gross Asset Value of (a) any Partnership
asset distributed to any Partner or (b) any asset of another member of the
▇▇▇▇▇▇▇ Group distributed to a shareholder, partner or other equity owner of
such ▇▇▇▇▇▇▇ Group member shall be adjusted to equal the gross fair market
value of such asset, taking Section 7701(g) of the Code into account, on the
date of distribution as determined by the General Partner; and
(iv) The Gross Asset Values of Partnership assets shall be
increased (or decreased) to reflect any adjustments to the adjusted basis of
such assets pursuant to Code Section 734(b) or Code Section 743(b), but only to
the extent that such adjustments are taken into account in determining Capital
Accounts pursuant to Regulations Section 1.704-1(b)(2)(iv)(m) and paragraph
(vi) of the definition of Profits and Losses; provided, however, that Gross
Asset Values shall not be adjusted pursuant to this paragraph (iv) to the
extent the General Partner determines that an adjustment pursuant to paragraph
(ii) above is
6
12
necessary or appropriate in connection with a transaction that would otherwise
result in an adjustment pursuant to this paragraph (iv).
If the Gross Asset Value of an asset has been determined or adjusted
pursuant to paragraphs (i), (ii) or (iv) above, such Gross Asset Value shall
thereafter be adjusted by the Depreciation taken into account with respect to
such asset. The General Partner may adjust the Capital Accounts to reflect any
adjustment to the Gross Asset Value of Partnership property if so required or
permitted under Section 1.704-1(b)(2)(iv) of the Regulations.
"Hazardous Materials" shall mean any substance, material, waste, gas or
particulate matter which is regulated by any local governmental authority, the
State of Illinois or the United States Government, including, but not limited
to, any material or substance which is (i) defined as a "hazardous waste",
"hazardous material", "hazardous substance", "extremely hazardous waste", or
"restricted hazardous waste" or words of similar import under any provision of
any Environmental Law; (ii) petroleum or petroleum products; (iii) asbestos;
(iv) poly chlorinated biphenyl; (v) radioactive material; (vi) radon gas; (vii)
designated as a "hazardous substance" pursuant to Section 311 of the Clean Water
Act, 33 U.S.C. [Section]1251 ET SEQ. (33 U.S.C. [Section]1317); (viii) defined
as a "hazardous waste" pursuant to Section 1004 of the Resource Conservation and
Recovery Act, 42 U.S.C. [Section]6901 ET SEQ. (42 U.S.C. [Section]6903); or
(ix) defined as a "hazardous substance" pursuant to Section 101 of the
Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C.
[Section]9601 ET SEQ. (42 U.S.C. [Section]9601).
"Immediate Family" shall mean, with respect to any Person, such Person s
spouse, parents, parents-in-law, descendants, nephews, nieces, brothers,
sisters, brothers-in-law, sisters-in-law and children-in-law.
"Limited Partner" shall mean any Person (i) whose name is set forth as
a Limited Partner on EXHIBIT C attached hereto or who has become a Limited
Partner pursuant to the terms and conditions of this Agreement and (ii) who
holds a Partnership Interest. "Limited Partners" means all such Persons.
"Limited Partner Consolidated Percentage" shall mean the fraction,
expressed as a percentage, determined as follows:
X
---
X+Y
where X = the number of Units held by the Limited Partners
(excluding any Units held by the General Partner)
multiplied by the Conversion Factor; and
Y = the number of shares of Common Stock then outstanding.
"Management Corporation" shall mean ▇▇▇▇▇▇▇ Management Corporation, a
Delaware corporation, which was formerly ▇▇▇▇▇▇ Management Corporation.
7
13
"Management Partnership" shall mean ▇▇▇▇▇▇▇ Management Limited
Partnership, a Delaware limited partnership, which was formerly ▇▇▇▇▇▇
Management Limited Partnership.
"Nonrecourse Deductions" shall have the meaning set forth in Regulations
Section 1.704-2(b) and (c).
"Nonrecourse Liability" shall have the meaning set forth in Regulations
Section l.704-2(b)(3).
"Notice of Redemption" shall mean the Notice of Redemption substantially in
the form of EXHIBIT D to this Agreement.
"Operating Cash Flow" shall have the meaning set forth in Section 8.1
hereof.
"Partner Nonrecourse Debt" shall have the meaning set forth in Regulations
Section 1.704-2(b)(4).
"Partner Nonrecourse Debt Minimum Gain" shall have the meaning set forth in
Regulations Section 1.704-2(i)(3).
"Partner Nonrecourse Deductions" shall have the meaning set forth in
Regulations Section 1.704-2(i)(2).
"Partners" shall mean, collectively, the General Partner and the Limited
Partners, or any additional or successor partners of the Partnership.
Reference to a Partner shall be to any one of the Partners.
"Partnership" shall mean the limited partnership governed by this
Agreement, as amended and/or restated from time to time.
"Partnership Interest" shall mean the ownership interest of a Partner in
the Partnership at any particular time, including the right of such Partner to
any and all benefits to which such Partner may be entitled as provided in this
Agreement, and to the extent not inconsistent with this Agreement, under the
Act, together with the obligations of such Partner to comply with all of the
terms and provisions of this Agreement and of the Act.
"Partnership Minimum Gain" shall have the meaning set forth in Regulations
Sections 1.704-2(h)(2) and 1.704-2(d).
"Percentage Interest" of a Partner in the Partnership shall be equal to
the quotient (expressed as a percentage) arrived at by dividing the number of
Units held by the Partner by the total number of Units then outstanding.
"Person" shall mean any individual or Entity.
8
14
"Prior Agreement" shall mean the Agreement of Limited Partnership of
▇▇▇▇▇▇ Operating Limited Partnership, dated as of October 4, 1993, as amended up
to the date hereof, in the form attached hereto as EXHIBIT A.
"Profits" and "Losses" shall mean, for each fiscal year or portion
thereof, an amount equal to the Partnership's items of taxable income or loss
for such year or period, determined in accordance with Section 703(a) of the
Code with the following adjustments:
(i) any income which is exempt from Federal income tax and
not otherwise taken into account in computing Profits or Losses shall be added
to taxable income or loss;
(ii) any expenditures of the Partnership described in Code
Section 705(a)(2)(B) or treated as Section 705(a)(2)(B) expenditures under
Regulations Section 1.704-1(b)(2)(iv)(i) and not otherwise taken into account
in computing Profits or Losses will be subtracted from taxable income or loss;
(iii) in the event that the Gross Asset Value of any
Partnership asset is adjusted pursuant to the definition of Gross Asset Value
contained in this Article 1, 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 Losses;
(iv) gain or loss resulting from any disposition of
Partnership assets 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 for such fiscal year or
other period;
(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 Regulations Section 1.704-1(b)(2)(iv)(m) to be taken
into account in determining Capital Accounts as a result of a distribution
other than in complete liquidation of a Partner's Partnership 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 or Losses; and
(vii) any items specially allocated pursuant to Section
7.2 hereof shall not be considered in determining Profits or Losses.
"Prospectus" shall mean the final form of prospectus relating to the
initial public offering of common stock of ▇▇▇▇▇▇ as it was first filed
pursuant to Rule 424(b) of the rules and regulations of the SEC, including all
amendments and supplements thereto.
9
15
"Redeeming Partner" shall have the meaning set forth in Section 3.2
hereof.
"Redemption Right" shall have the meaning set forth in Section 3.2 hereof.
"Regulations" shall mean the Income Tax Regulations, including Temporary
Regulations, promulgated under the Code, as such regulations may be amended from
time to time (including corresponding provisions of succeeding regulations).
"Registration Statement" shall mean the Registration Statement on Form
S-11 (including the prospectus contained therein) relating to the initial
public offering of common stock of ▇▇▇▇▇▇, as filed with the SEC, and any
amendments made thereto, pursuant to which ▇▇▇▇▇▇ offered and sold certain
shares of its common stock.
"REIT" shall mean a real estate investment trust as defined in Section 856
of the Code.
"REIT Requirements" shall have the meaning set forth in Section 5.2
hereof.
"REIT Shares Amount" shall mean a number of shares of Common Stock equal
to the product of (i) the number of Units set forth in a Redeeming Partner s
Notice of Redemption pursuant to Section 3.2 and (ii) the Conversion Factor.
"Requesting Party" shall have the meaning set forth in Section 18.2
hereof.
"SEC" shall mean the United States Securities and Exchange Commission.
"Specified Redemption Date" shall mean the tenth (10th) Trading Day after
receipt by the General Partner of a Notice of Redemption from a Limited
Partner.
"Trading Day" shall mean a day on which the principal national securities
exchange on which the Common Stock is listed or admitted to trading is open for
the transaction of business or, if the Common Stock is not listed or admitted
to trading on any national securities exchange, shall mean any day other than a
Saturday, a Sunday or a day on which banking institutions in the State of New
York are authorized and obligated by law or executive order to close.
"Transferee" shall have the meaning set forth in Section 12.2 hereof.
"TTC Guarantors" shall mean ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇.
"Units" shall have the meaning set forth in Section 3.1 hereof.
"Valuation Date" shall mean the date of receipt by the General Partner of
a Notice of Redemption or, if such date is not a Trading Day, the first Trading
Day thereafter.
10
16
1.2 EXHIBITS, ETC. References to an "Exhibit" or to a "Schedule"
are, unless otherwise specified, to one of the Exhibits or Schedules attached
to this Agreement, and references to an "Article" or a "Section" are, unless
otherwise specified, to one of the Articles or Sections of this Agreement.
Each Exhibit and Schedule attached hereto and referred to herein is hereby
incorporated herein by this reference.
2. Organization.
-------------
2.1 FORMATION OF PARTNERSHIP. Upon the initial filing of the
Certificate with the Secretary of State of the State of Delaware on October 4,
1993, the Partnership was formed as a limited partnership pursuant to the
provisions of the Act, and all other pertinent laws of the State of Delaware.
The Partners agree that the rights and liabilities of the Partnership shall be
as provided in the Act except as otherwise herein expressly provided.
2.2 PARTNERSHIP NAME. The business of the Partnership shall be
conducted under the name of "▇▇▇▇▇▇▇ Operating Limited Partnership"; provided,
however, that the General Partner may, from time to time, change the name of the
Partnership or may adopt such trade or fictitious names as it may determine.
2.3 LOCATION OF THE PRINCIPAL PLACE OF BUSINESS. The location of
the principal place of business of the Partnership shall be at ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or such other location as shall be
selected from time to time by the General Partner in its sole discretion.
2.4 REGISTERED AGENT AND REGISTERED OFFICE. The Registered Agent
of the Partnership shall be The Corporation Trust Company or such other Person
as the General Partner may select in its sole discretion. The Registered
Office of the Partnership shall be Corporation Trust Center, ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ or such other location as the General
Partner may select in its sole and absolute discretion.
3. Capital.
--------
3.1 ISSUANCE OF UNITS.
A. The interest of a Partner in the Partnership is sometimes
referred to as being evidenced by one or more "Units." Under the Prior
Agreement, each Partner was issued, and continues to own until the date of this
Agreement, the number of Units set forth opposite its name on EXHIBIT B.
Effective upon the consummation of the Merger, each Partner agrees to exchange
the number of Units set forth opposite its name on EXHIBIT B for the number of
Units set forth opposite its name on EXHIBIT C. The aggregate total of all
Units outstanding as of the date of this Agreement, and the names of the
Partners holding such Units (including the number of Units owned by each such
Partner) are set forth on EXHIBIT C.
B. From time to time, the General Partner, subject to the
provisions of this Section 3.1.B and Section 3.1.E, may cause the Partnership
to issue additional Units to existing or newly-admitted Partners (including
itself) in exchange for the contribution by a
11
17
Partner (the "Contributing Partner") of additional Capital Contributions to the
Partnership. The number of Units issued to a Contributing Partner that is a
member of the ▇▇▇▇▇▇▇ Group under this Section 3.1.B shall be equal to the
quotient (rounded to the nearest whole number) arrived at by dividing (i) the
amount of money or the initial Gross Asset Value of the property contributed as
additional Capital Contributions (net of other liabilities to which such
property is subject or assumed by the Partnership in connection with such
contribution but increased to reflect any expenses attributable to such
contribution) by (ii) the product of (a) the Current Per Share Market Price of
the Common Stock and (b) the Conversion Factor. The number of Units issued to
a Contributing Partner that is not a member of the ▇▇▇▇▇▇▇ Group under this
Section 3.1.B shall be determined by the General Partner, in its sole
discretion.
C. Subject to the provisions of Section 3.1.B and Section
3.1.E, the General Partner is hereby authorized to cause the Partnership from
time to time to issue to the Partners (including the General Partner) or other
Persons additional Units or other Partnership Interests in one or more classes,
or one or more series of any such class with such designations, preferences and
relative, participating, optional or other special rights, powers and duties,
including rights, powers and duties senior to the Partnership Interests and
Units held by the Limited Partners, all as shall be determined by the General
Partner in its sole and absolute discretion, including, without limitation (i)
the right of such class or series of Partnership Interests to share in
Partnership distributions and (ii) the rights which each such class or series
of Partnership Interests shall have upon dissolution or liquidation of the
Partnership. Notwithstanding the foregoing, for a period of twenty-four (24)
months after the effective time of the Merger, the General Partner shall not
cause the Partnership to issue additional Units or other Partnership Interests
with rights, powers and duties senior to the Units and Partnership Interests
held by the Limited Partners.
D. No Limited Partner shall, by virtue of being the holder of
one or more Units, be deemed to be a shareholder of, or have any other interest
in, the General Partner.
E. The General Partner shall not permit the Partnership to
issue additional Units to existing or newly admitted Partners for a period of
twenty-four (24) months after the effective time of the Merger if the issuance
of such Units would cause a material adverse tax consequence to the Limited
Partners (determined in the manner described below); provided, however, that
notwithstanding the foregoing or anything in this Agreement to the contrary,
the General Partner shall have the right to require the Partnership to issue
additional new Units to existing or newly-admitted Partners in connection with
(i) the merger, consolidation or combination of the General Partner or one of
its corporate subsidiaries with or into another Person in which securities of
the General Partner are being issued, acquired, converted or exchanged or (ii)
the merger, consolidation or combination of the Partnership with or into
another Person in connection with such merger, consolidation or combination of
the General Partner or one of its corporate subsidiaries with or into another
Person in which securities of the General Partner are being issued, acquired,
converted or exchanged. For purposes of this Section 3.1.E, an issuance of
Units will be treated as having material adverse tax consequences to the
Limited Partners only if the Limited Partners submit to the Partnership within
twenty-one (21) days of receipt of notice from the General Partner of such
proposed
12
18
issuance of Units an opinion of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇, L.L.C. or such other
certified public accounting firm reasonably satisfactory to the General
Partner, which opinion is in form and substance reasonably satisfactory to the
Accountants, to the effect that such issuance (x) will result in a decrease in
the Limited Partners share of Partnership liabilities under Code Section 752
and the Regulations thereunder and (y) such decrease in the Limited Partners
share of liabilities will cause the Limited Partners to recognize taxable
income under Section 731 of the Code of $50,000 in the aggregate or greater.
Nothing in this Section 3.1.E shall preclude the issuance of Units to the
extent necessary to provide that the Limited Partners as a class are entitled
to at least 1% of the distributions to the Partners pursuant to Section 8.4 for
the taxable year and subsequent taxable years.
3.2 REDEMPTION RIGHT.
A. Subject to Sections 3.2.B and 3.2.C, on or after the date
of this Agreement, each Limited Partner, other than the General Partner, shall
have the right (the "Redemption Right") to require the Partnership to redeem on
a Specified Redemption Date all or a portion of the Units held by such Limited
Partner for an aggregate amount equal to the Cash Amount, which shall be paid
by the Partnership. The Redemption Right shall be exercised pursuant to a
Notice of Redemption delivered to the Partnership (with a copy to the General
Partner) by the Limited Partner who is exercising the redemption right (the
"Redeeming Partner"); provided, however, that the Partnership shall not be
obligated to satisfy such Redemption Right if the General Partner elects to
purchase the Units subject to the Notice of Redemption pursuant to Section
3.2.B. Effective as of the Specified Redemption Date, the Redeeming Partner
shall not receive any dividends or distributions with respect to any Units so
redeemed. The Transferee of any Limited Partner may exercise the rights of
such Limited Partner pursuant to this Section 3.2, and such Limited Partner
shall be deemed to have assigned such rights to such Transferee and shall be
bound by the exercise of such rights by such Transferee. In connection with
any exercise of such rights by such Transferee on behalf of such Limited
Partner, the Cash Amount shall be paid by the Partnership directly to such
Transferee and not to such Limited Partner.
B. Notwithstanding the provisions of Section 3.2.A, a Limited
Partner that exercises the Redemption Right shall be deemed to have offered to
sell the number of Units set forth in the Notice of Redemption to the General
Partner, and the General Partner may, in its sole and absolute discretion,
elect to purchase directly and acquire such Units by paying to the Redeeming
Partner either the Cash Amount or the REIT Shares Amount, as elected by the
General Partner (in its sole and absolute discretion), on the Specified
Redemption Date, whereupon on such date the General Partner shall acquire the
Units offered for redemption by the Redeeming Partner and shall be treated for
all purposes of this Agreement as the owner of such Units. If the General
Partner shall elect to exercise its right to purchase Units under this Section
3.2.B with respect to a Notice of Redemption, it shall so notify the Redeeming
Partner within five Trading Days after the receipt by the General Partner of
such Notice of Redemption. If the General Partner (in its sole and absolute
discretion) elects not to exercise its right to purchase Units from the
Redeeming Partner pursuant to this Section 3.2.B, the General Partner shall not
have any obligation to the Redeeming Partner or the Partnership with respect to
the Redeeming Partner's exercise of the Redemption Right, and
13
19
the Partnership shall be required to pay the Redeeming Partner the Cash Amount
in accordance with the provisions of Section 3.2.A. In the event the General
Partner shall exercise its right to purchase Units with respect to the exercise
of a Redemption Right as described in the first sentence of this Section 3.2.B,
the Partnership shall have no obligation to pay any amount to the Redeeming
Partner with respect to such Redeeming Partner's exercise of such Redemption
Right, and each of the Redeeming Partner, the Partnership and the General
Partner, as the case may be, shall treat the transaction between the General
Partner and the Redeeming Partner for federal income tax purposes as a sale of
the Redeeming Partner's Units to the General Partner. Each Redeeming Partner
agrees to execute such documents as the General Partner may reasonably require
in connection with the issuance of shares of Common Stock upon exercise of the
Redemption Right.
C. Notwithstanding the provisions of Section 3.2.A and
Section 3.2.B, (i) a Limited Partner shall not be entitled to exercise the
Redemption Right pursuant to Section 3.2.A if the delivery of shares of Common
Stock to such Partner on the Specified Redemption Date pursuant to Section
3.2.B would be prohibited under or violate any provision of the Charter of the
General Partner or would violate any federal or state securities laws and (ii) a
Limited Partner shall not have the right to exercise the Redemption Right
pursuant to Section 3.2.A if in the opinion of counsel for the General Partner
the General Partner would, as a result thereof, no longer qualify (or if there
is a material risk that the General Partner no longer would qualify) as a REIT.
D. In connection with the execution of this Agreement, ▇▇▇▇▇▇▇
and the Limited Partners have entered into a Registration Rights Agreement in
the form of EXHIBIT G hereto which provides the Limited Partners with certain
rights to register under the Securities Act of 1933, as amended, the shares of
Common Stock which they may receive under Section 3.2.B.
3.3 ADDITIONAL CAPITAL. No Partner shall be assessed or required to
contribute additional funds or other property to the Partnership. Any
additional funds or other property required by the Partnership, as determined
by the General Partner in its sole discretion, may, at the option of the
General Partner and without any obligation to do so, be contributed by the
General Partner as additional Capital Contributions. If and as the General
Partner or any other Partner makes additional Capital Contributions to the
Partnership, each such Contributing Partner shall receive additional Units or
other Partnership Interests as provided for in Section 3.1. The General
Partner shall also have the right (but not the obligation) to raise any
additional funds required for the Partnership by lending funds to the
Partnership, or by causing the Partnership to borrow funds from third parties
or other members of the ▇▇▇▇▇▇▇ Group, on such terms and conditions as the
General Partner shall deem appropriate in its sole discretion. If the General
Partner elects to cause the Partnership to borrow funds, it may cause one or
more of the Partnership's assets to be encumbered to secure the loan. No
Limited Partner shall have the right to contribute additional Capital
Contributions to the Partnership without the prior written consent of the
General Partner.
3.4 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
14
20
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. None of the rights or obligations of the Partners herein set forth to
make Capital Contributions or loans to the Partnership shall be deemed an asset
of the Partnership for any purpose by any creditor or other third party, nor
may such rights or obligations be sold, transferred or assigned by the
Partnership or pledged or encumbered by the Partnership to secure any debt or
other obligation of the Partnership or of any of the Partners.
3.5 CAPITAL ACCOUNTS. A separate Capital Account shall be
maintained for each Partner. The initial balance of each Partner's Capital
Account as of the date hereof shall equal the amount specified on EXHIBIT E
hereto. Each Partner's Capital Account shall thereafter be adjusted as set
forth below in this Section 3.5.
A. To each Partner's Capital Account there shall be credited
such Partner's Capital Contributions, such Partner's distributive share of
Profits and any items in the nature of income or gain which are specifically
allocated pursuant to Section 7.2 hereof, and the amount of any Partnership
liabilities assumed by such Partner or which are secured by any Partnership
property distributed to such Partner.
B. To each Partner's Capital Account there shall be debited
the amount of cash and the Gross Asset Value of any Partnership property
distributed to such Partner pursuant to any provision of this Agreement, such
Partner's distributive share of Losses and any items in the nature of expenses
or losses which are specifically allocated pursuant to Section 7.2 hereof, and
the amount of any liabilities of such Partner assumed by the Partnership or
which are secured by any property contributed by such Partner to the
Partnership.
C. In the event all or a portion of a Partnership Interest is
transferred in accordance with the terms of this Agreement (including a
transfer of Units pursuant to Section 3.2), the transferee shall succeed to the
Capital Account of the transferor to the extent it relates to the transferred
Partnership Interest.
D. In determining the amount of any liability for purposes of
Sections 3.5.A and 3.5.B hereof, there shall be taken into account Code Section
752(c) and any other applicable provisions of the Code and Regulations.
E. This Section 3.5 and the other provisions of this Agreement
relating to the maintenance of Capital Accounts (and the determination of
credits and debits thereto) are intended to comply with Section 704(b) of the
Code and Regulations Section 1.704-1(b), and shall be interpreted and applied
in a manner consistent with such Regulations. In the event the General Partner
shall determine that it is prudent to modify the manner in which the Capital
Accounts, or any debits or credits thereto (including, without limitation, (i)
allocations pursuant to Article 7 hereof or (ii) debits or credits relating to
liabilities which are secured by contributed or distributed property or which
are assumed by the Partnership or
15
21
the Partners) are computed in order to comply with such Regulations or more
accurately reflect the Partners' interests in the Partnership, the General
Partner may make such modification. The General Partner also may (i) make any
adjustments that are necessary or appropriate to maintain equality between the
Capital Accounts of the Partners and the amount of Partnership capital
reflected on the Partnership's balance sheet, as computed for book purposes, in
accordance with Regulations Section 1.704-1(b)(2)(iv)(g), (ii) make any
appropriate modifications in the event unanticipated events (for example, the
acquisition by the Partnership of oil or gas properties) might otherwise cause
this Agreement not to comply with Regulations Section 1.704-1(b), and (iii)
adopt such conventions and make such elections for purposes of maintaining
Capital Accounts and the allocation of items for tax purposes as it determines
are necessary or appropriate.
3.6 NO INTEREST ON OR RETURN OF CAPITAL.
A. Except to the extent authorized by Partnership Interests
issued pursuant to Section 3.1.C, no Partner shall be entitled to any interest
on its Capital Account or on its contributions to the capital of the
Partnership.
B. Except as provided by law or to the extent authorized by
Partnership Interests issued pursuant to Section 3.1.C, no Partner shall have
the right to demand or to receive the return of all or any part of his capital
contributions to the Partnership and there shall be no priority of one Partner
over another as to the return of capital contributions or withdrawals or
distributions of profits and losses. Except to the extent authorized by
Partnership Interests issued pursuant to Section 3.1.C, no Partner shall have
the right to demand or receive property other than cash in return for the
contributions of such Partner to the Partnership.
3.7 NEGATIVE CAPITAL ACCOUNTS. Except as otherwise provided by law,
no Partner shall be required to pay to the Partnership any deficit or negative
balance which may exist in its Capital Account.
3.8 LIMIT ON CONTRIBUTIONS AND OBLIGATIONS OF PARTNER. Neither the
Limited Partners nor the General Partner shall be required to make any
additional advances or contributions to or on behalf of the Partnership or to
endorse any obligations of the Partnership.
4. [Intentionally Omitted].
5. Purpose and Powers of Partnership.
----------------------------------
5.1 The purposes of the Partnership shall be to acquire, hold,
purchase, own, operate, manage, develop, redevelop, construct, improve,
maintain, invest in, finance, refinance, sell, convey, exchange, transfer,
encumber, lease and otherwise deal with the properties of the Partnership and
other real and personal property; to exercise all of the powers of a general
partner in the Financing Partnership and to acquire, own, sell, convey,
exchange, dispose of and otherwise deal with partnership interests in the
Financing
16
22
Partnership; to exercise all of the powers of a limited partner or a general
partner in a partnership, including, without limitation, in the Management
Partnership and to acquire, own, sell, convey, exchange, dispose of and
otherwise deal with and dispose of partnership interests including, without
limitation, those of the Management Partnership; to undertake such other
activities as may be necessary, advisable, desirable 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. The
Partnership shall have all powers necessary or desirable 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, directly or through its interests in the
Financing Partnership, the Financing Corporation, the Management Partnership,
the Management Corporation or any other partnership, subsidiary, limited
liability company, other entity or joint venture, 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
as necessary or useful in connection with its business.
5.2 The Partners acknowledge and agree that the Partnership shall be
operated in a manner that will enable the General Partner to (i) satisfy the
requirements for qualifying and taxation as a REIT under the Code and the
Regulations (the "REIT Requirements") and (ii) avoid the imposition of any
federal income or excise tax liability. The Partnership shall avoid taking any
action, or permitting any Affiliate to take any action, which would result in
the General Partner ceasing to satisfy the REIT Requirements or would result in
the imposition of any federal income or excise tax liability on the General
Partner.
6. Term.
-----
6.1 The Partnership shall continue until the Partnership is
terminated upon the earliest to occur of the following events:
A. December 31, 2050;
B. The election to dissolve the Partnership made in writing by
the General Partner;
C. The Bankruptcy of the General Partner;
D. Dissolution required by operation of law; or
E. The sale or other disposition of all or substantially all
the assets of the Partnership unless the General Partner elects to continue the
Partnership business for the purpose of the receipt and the collection of
indebtedness or the collection of any other consideration to be received in
exchange for the assets of the Partnership (which activities shall be deemed to
be part of the winding up of the affairs of the Partnership).
17
23
6.2 Notwithstanding any other provision in this Agreement, the
General Partner hereby covenants and agrees that, for a period of two (2) years
after the effective time of the Merger, it will not (i) elect to dissolve the
Partnership pursuant to Section 6.1.B of this Agreement or (ii) sell or
otherwise dispose of all or substantially all of the assets of the Partnership.
7. Allocations.
------------
7.1 PROFITS OR LOSSES. Profits and Losses for each taxable year
shall be allocated among the Partners and shall be credited or debited to the
respective Capital Accounts so that, to the maximum extent possible, the
balance of each Partner's Capital Account at the end of any taxable year
(increased by the sum of such Partner's share of Partnership Minimum Gain and
Partner Nonrecourse Debt Minimum Gain, as determined in accordance with
Regulations Section 1.704-2) would be positive in the amount of cash that such
Partner would receive if each member of the ▇▇▇▇▇▇▇ Group sold all of its
property for an amount of cash equal to the Gross Asset Value of such property
(reduced, but not below zero, by the amount of Nonrecourse Liabilities to which
such property is subject) and all of the cash of the Partnership and each
member of the ▇▇▇▇▇▇▇ Group remaining after payment of all liabilities (other
than Nonrecourse Liabilities) of the Partnership and each member of the ▇▇▇▇▇▇▇
Group were distributed in liquidation of each such entity immediately following
the end of such taxable year. For purposes of calculating the distribution
that would be made to the Partners pursuant to the hypothetical liquidation
described in the preceding sentence, (i) Section 15.2.C shall be applied as if
such hypothetical liquidation occurred in connection with the liquidation of
the ▇▇▇▇▇▇▇ Group (so that the hypothetical liquidating distribution to the
Partners shall be calculated under Sections 8.4 and 8.5) and (ii) Section 8.4
shall be applied as if the Consolidated Distributed Cash for the taxable year
ending with such hypothetical liquidation equaled the amount of cash that would
be distributed to the holders of Common Stock and Units (other than Units held
by the General Partner) in such hypothetical liquidation (without regard to the
actual market price or fair market value of the Common Stock).
7.2 SPECIAL ALLOCATIONS. The following special allocations shall be
made in the following order:
A. MINIMUM GAIN CHARGEBACK. Except as otherwise provided in
Regulations Section 1.704-2(f), notwithstanding any other provision of this
Article 7, if there is a net decrease in Partnership Minimum Gain during any
fiscal year, each Partner shall be specially allocated items of Partnership
income and gain for such fiscal year (and, if necessary, subsequent fiscal
years) in an amount equal to such Partner's share of the net decrease in
Partnership Minimum Gain, determined in accordance with Regulations Section
1.704-2(g). The items to be so allocated shall be determined in accordance
with Regulations Sections 1.704-2(f)(6) and 1.704-2(j)(2) (assuming for this
purpose that this Agreement complies with the requirements of Regulations
Section 1.704-1(e)). This Section 7.2.A is intended to comply with the minimum
gain chargeback requirement in Regulations Section 1.704-2(f) and shall be
interpreted consistently therewith.
18
24
B. PARTNER MINIMUM GAIN CHARGEBACK. Except as otherwise
provided in Regulations Section 1.704-2(i)(4), notwithstanding any other
provision of this Article 7, if there is a net decrease in Partner Nonrecourse
Debt Minimum Gain attributable to a Partner Nonrecourse Debt during any
Partnership fiscal year, each Partner who has a share of the Partner
Nonrecourse Debt Minimum Gain attributable to such Partner Nonrecourse Debt,
determined in accordance with Regulations Section 1.704-2(i)(5), shall be
specially allocated items of Partnership income and gain for such fiscal year
(and, if necessary, subsequent fiscal years) in an amount equal to such Partner
s share of the net decrease in Partner Nonrecourse Debt Minimum Gain
attributable to such Partner Nonrecourse Debt, determined in accordance with
Regulations Section 1.704-2(i)(4) (assuming for this purpose that this
Agreement complies with the requirements of Regulations Section 1.704-1(e)).
The items to be so allocated shall be determined in accordance with Regulations
Sections 1.7042(i)(4) and 1.704-2(j)(2). This Section 7.2.B is intended to
comply with the minimum gain chargeback requirement in Regulations Section
1.704-2(i)(4) and shall be interpreted consistently therewith.
C. NONRECOURSE DEDUCTIONS. Nonrecourse Deductions for any
fiscal year shall be allocated among the Partners in accordance with their
respective Percentage Interests.
D. 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
Regulations Section 1.704-2(i)(1).
7.3 OTHER ALLOCATION RULES.
A. For purposes of determining the Profits, Losses or any
other items allocable to any period, Profits, Losses and any such other items
shall be determined in a daily, monthly or other basis, as determined by the
General Partner using any permissible method under Code Section 706 and the
Regulations thereunder (including proration or a closing of the books).
B. The Partners are aware of the income tax consequences of
the allocations made by this Article 7 and hereby agree to be bound by the
provisions of this Article 7 in reporting their shares of Partnership income
and loss for income tax purposes.
19
25
7.4 TAX ALLOCATIONS; CODE SECTION 704(C)/SECTION 1245 AND 1250
RECAPTURE.
A. Except as otherwise provided in this Agreement, for
federal, state and local income tax purposes, all items of Partnership income,
gain, loss, deduction, credit and any other allocations not otherwise provided
for shall be allocated among Partners in the same manner as the corresponding
item of income, gain, loss or deduction was allocated pursuant to the preceding
sections.
B. Income, gain, loss, and deduction with respect to any
property contributed to the capital of the Partnership shall, solely for 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 Gross Asset Value in accordance
with any permissible manner under Code Section 704(c) and the Regulations
thereunder.
C. In the event the Gross Asset Value of any asset is adjusted
pursuant to the definition of "Gross Asset Value" contained in Article 1
hereof, subsequent allocations of income, gain, loss, and deduction with
respect to such asset shall take account of any variation between the adjusted
basis of such asset for federal income tax purposes and its Gross Asset Value
in the same manner or manners permitted under Code Section 704(c) and the
Regulations thereunder.
D. Any elections or other decisions relating to tax
allocations pursuant to this Section 7.4 shall be made by the General Partner
in any permissible manner under the Code or the Regulations that the General
Partner may elect in its sole discretion, and the General Partner may adopt
such conventions and methods for complying with the requirements of Code
Section 704(c) and the Regulations thereunder as the General Partner deems
appropriate. Allocations pursuant to this Section 7.4 are solely for purposes
of federal, state, and local taxes and shall not affect, or in any way be taken
into account in computing, any Partner's Capital Account or share of Profits or
Losses.
E. Except as otherwise required under Section 7.1, 7.2 or
7.4.C, if any portion of gain from the sale of property is treated as gain
which is ordinary income by virtue of the application of Code Section 1245 or
1250 ("Affected Gain"), then, to the extent possible, (i) 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 and (ii) other Tax Items of gain of the same character that would
have been recognized, but for the application of Code Section 1245 and/or 1250,
shall be allocated away from those Partners who are allocated Affected Gain
pursuant to clause (i) so that, to the extent possible, the other Partners are
allocated the same amount, and type, of capital gain that would have been
allocated to them had Code Section 1245 and/or 1250 not applied.
7.5 NONRECOURSE LIABILITIES. The Partners agree that the
Partnership's "excess nonrecourse liabilities" within the meaning of
Regulations Section 1.752- 3(a)(3) shall be allocated among the Partners in
accordance with their respective interests in Partnership
20
26
profits which, solely for purposes of Regulations Section 1.752-3(a)(3), shall
be deemed to be their Percentage Interests.
8. Cash Available For Distribution.
--------------------------------
8.1 OPERATING CASH FLOW. As used in this Agreement, "Operating Cash
Flow" shall mean and be defined as all cash receipts of the Partnership from
whatever source (but excluding Capital Cash Flow and excluding the proceeds of
any additional Capital Contributions to the Partnership pursuant to Section 3.1
or 3.3 hereof) during the period in question in excess of all items of
Partnership expense (other than non-cash expenses such as depreciation) and
other cash needs of the Partnership, including, without limitation,
Administrative Expenses, amounts paid by the Partnership as principal on debts
and advances, during such period, capital expenditures and any reserves (as
determined by the General Partner) established or increased during such period.
In the discretion of the General Partner, reserves may include cash held for
future acquisitions or any other purpose.
8.2 CAPITAL CASH FLOW. As used in this Agreement, "Capital Cash
Flow" shall mean and be defined as collectively (i) gross proceeds realized in
connection with the sale of any assets of the Partnership, (ii) gross financing
or refinancing proceeds, (iii) gross condemnation proceeds (excluding
condemnation proceeds applied to restoration of remaining property) and (iv)
gross insurance proceeds (excluding rental insurance proceeds or insurance
proceeds applied to restoration of property) less (a) closing costs, (b) the
cost to discharge any Partnership financing encumbering or otherwise associated
with the asset(s) in question, (c) the establishment of reserves (as determined
by the General Partner, and which may include cash held for future
acquisitions), and (d) other expenses of the Partnership (including
Administrative Expenses) to the extent not deducted in calculating Operating
Cash Flow and then due and owing.
8.3 CONSOLIDATED DISTRIBUTED CASH. As used in this Agreement,
"Consolidated Distributed Cash" with respect to any period shall mean the total
amount of cash that will be distributed with respect to shares of Common Stock
and Units (other than Units held by the General Partner) by members of the
▇▇▇▇▇▇▇ Group with respect to such period. The amount of Consolidated
Distributed Cash with respect to any period shall be determined by the General
Partner in its sole discretion, and such determination shall be conclusive and
binding as to all Partners.
8.4 DISTRIBUTIONS TO PARTNERS. Except as provided in Section 15.2,
Operating Cash Flow and Capital Cash Flow with respect to any period shall be
distributed to the Partners at such times as the holders of Common Stock
receive a distribution with respect to their shares, but in no event less than
annually at such time as the General Partner shall determine, in the following
order of priority:
A. First, to the Limited Partners as a class, an amount equal
to the lesser of (i) (A) the Current Yield for such period plus (B) the excess,
if any, of the aggregate of the Current Yield for all prior periods over the
aggregate amount distributed pursuant to
21
27
this Section 8.4.A for all prior periods, and (ii) 99% of the Operating Cash
Flow and Capital Cash Flow for such period.
B. Second, any remaining Operating Cash Flow and Capital Cash
Flow for such period shall be distributed to the General Partner.
8.5 DISTRIBUTIONS TO LIMITED PARTNERS AS A CLASS. The amount
distributed to Limited Partners as a class pursuant to Section 8.4 shall be
distributed among the Limited Partners in accordance with the respective number
of Units held by them as of a record date established by the General Partner,
which record date shall be the same as the record date for determination of
stockholders of the General Partner who are entitled to receive payment of
dividends on their shares of Common Stock.
8.6 REIT DISTRIBUTIONS. The General Partner shall use its best
efforts to cause Operating Cash Flow and Capital Cash Flow to be distributed so
as to allow the General Partner to satisfy the REIT Requirements and avoid
imposition of any federal income or excise tax.
8.7 CONSENT TO DISTRIBUTIONS. Each of the Partners hereby consents
to the distributions provided for in this Agreement.
8.8 LIQUIDATING DISTRIBUTIONS. Distributions upon liquidation of the
Partnership shall be made in accordance with Section 15.2.
8.9 SPECIAL DISTRIBUTION AND ALLOCATIONS FOR CERTAIN PROPERTIES.
A. Notwithstanding anything to the contrary in this Agreement,
for the Partnership's 1995 fiscal year and all subsequent fiscal years, (a)
100% of the Operating Cash Flow, Capital Cash Flow and proceeds of liquidation
of the Partnership with respect to the property contributed to the Partnership
by the Village of Chicago Ridge (the "Village Property") shall be distributed
to the General Partner as determined by the General Partner pursuant to
Sections 8.1, 8.2 and 15.2 of this Agreement, (b) 100% of all items of
Partnership income, gain, loss, deduction and credit with respect to the
Village Property shall be allocated to the General Partner, (c) 100% of the
liabilities and expenditures attributable to the Village Property shall be
charged to the General Partner, and (d) the General Partner shall indemnify and
hold harmless the share of the Limited Partners Operating Cash Flow, Capital
Cash Flow and proceeds of liquidation from and against any liabilities or
expenditures attributable to the Village Property.
B. Notwithstanding anything to the contrary in this Agreement,
for the Partnership's 1995 fiscal year and all subsequent fiscal years, (a)
100% of the Operating Cash Flow, Capital Cash Flow and proceeds of liquidation
of the Partnership with respect to the note issued to the Partnership by the
Village of Round Lake Beach (the "Village Note") shall be distributed to the
General Partner as determined by the General Partner pursuant to Sections 8.1,
8.2 and 15.2 of this Agreement, (b) 100% of all items of Partnership income,
gain, loss, deduction and credit with respect to the Village Note shall be
allocated to the
22
28
General Partner, (c) 100% of the liabilities and expenditures attributable to
the Village Note shall be charged to the General Partner, and (d) the General
Partner shall indemnify and hold harmless the share of the Limited Partners
Operating Cash Flow, Capital Cash Flow and proceeds of liquidation from and
against any liabilities or expenditures attributable to the Village Note.
9. Management of Partnership.
--------------------------
9.1 GENERAL PARTNER. The General Partner shall be the sole manager
of the Partnership business, and shall have the right and power to make all
decisions and take any and every action with respect to the property, business
and affairs of the Partnership and shall have all the rights, power and
authority generally conferred by law, or necessary, advisable or consistent
with accomplishing the purposes of the Partnership. All such decisions or
actions made or taken by the General Partner hereunder shall be binding upon
all of the Partners and the Partnership. Except as otherwise expressly
provided herein, the powers of the General Partner to manage the Partnership
business shall include, without limitation, the power and authority to:
A. Manage, control, invest, reinvest, acquire by purchase,
lease or otherwise sell, contract to purchase or sell, grant, obtain, or
exercise options to purchase, options to sell or conversion rights, assign,
transfer, convey, deliver, endorse, exchange, pledge, mortgage, abandon,
improve, repair, maintain, insure, lease for any term and otherwise deal with
any and all property of whatsoever kind and nature, and wheresoever situated,
in furtherance of the purposes of the Partnership;
B. Acquire, directly or indirectly, interests in real estate
of any kind and of any type, and any and all kinds of interests therein, and to
determine the manner in which title thereto is to be held; to manage, insure
against loss, protect and subdivide any of the real estate, interests therein
or parts thereof; to improve, develop or redevelop any such real estate; to
participate in the ownership and development of any property; to dedicate for
public use, to vacate any subdivisions or parts thereof, to resubdivide, to
contract to sell, to grant options to purchase or lease, to sell on any terms;
to convey, to mortgage, pledge or otherwise encumber said property, or any part
thereof; to lease said property or any part thereof from time to time, upon any
terms and for any period of time, and to renew or extend leases, to amend,
change or modify the terms and provisions of any leases and to grant options to
lease and options to renew leases and options to purchase; to partition or to
exchange said real property, or any part thereof, for other real or personal
property; to grant easements or charges of any kind; to release, convey or
assign any right, title or interest in or about or easement appurtenant to said
property or any part thereof; to construct and reconstruct, remodel, alter,
repair add to or take from buildings on said premises; to insure any Person
having an interest in or responsibility for the care, management or repair of
such property; to direct the trustee of any land trust to mortgage, lease,
convey or contract to convey the real estate held in such land trust or to
execute and deliver deeds, mortgages, notes, and any and all documents
pertaining to the property subject to such land trust or in any matter
regarding such trust; to execute assignments of all or any part of the
beneficial interest in such land trust;
23
29
C. Employ, engage or contract with or dismiss from employment
or engagement Persons to the extent deemed necessary by the General Partner for
the operation and management of the Partnership business, including but not
limited to, contractors, subcontractors, engineers, architects, surveyors,
mechanics, consultants, accountants, attorneys, insurance brokers, real estate
brokers and others;
D. Enter into contracts on behalf of the Partnership;
E. Borrow money, procure loans and advances from any Person
for Partnership purposes, and to apply for and secure from any Person, credit
or accommodations; to contract liabilities and obligations, direct or
contingent and of every kind and nature with or without security; and to repay,
discharge, settle, adjust, compromise, or liquidate any such loan, advance,
credit, obligation or liability;
F. Pledge, hypothecate, mortgage, assign, deposit, deliver,
enter into sale and leaseback arrangements or otherwise give as security or as
additional or substitute security, or for sale or other disposition any and all
Partnership property, tangible or intangible, including, but not limited to,
real estate and beneficial interests in land trusts, and to make substitutions
thereof, and to receive any proceeds thereof upon the release or surrender
thereof; to sign, execute and deliver any and all assignments, deeds and other
contracts and instruments in writing; to authorize, give, make, procure, accept
and receive moneys, payments, property, notices, demands, vouchers, receipts,
releases, compromises and adjustments; to waive notices, demands, protests and
authorize and execute waivers of every kind and nature; to enter into, make,
execute, deliver and receive written agreements, undertakings and instruments
of every kind and nature; to give oral instructions and make oral agreements;
and generally to do any and all other acts and things incidental to any of the
foregoing or with reference to any dealings or transactions which any attorney
may deem necessary, proper or advisable;
G. Acquire and enter into any contract of insurance which the
General Partner deems necessary or appropriate for the protection of the
Partnership, for the conservation of the Partnership's assets or for any
purpose convenient or beneficial to the Partnership;
H. Conduct any and all banking transactions on behalf of the
Partnership; to adjust and settle checking, savings, and other accounts with
such institutions as the General Partner shall deem appropriate; to draw, sign,
execute, accept, endorse, guarantee, deliver, receive and pay any checks,
drafts, bills of exchange, acceptances, notes, obligations, undertakings and
other instruments for or relating to the payment of money in, into, or from any
account in the Partnership's name; to execute, procure, consent to and
authorize extensions and renewals of the same; to make deposits and withdraw
the same and to negotiate or discount commercial paper, acceptances, negotiable
instruments, bills of exchange and dollar drafts; and to approve and adopt the
form of any banking resolutions of any financial institution as though set
forth in full herein;
24
30
I. Demand, ▇▇▇ for, receive, and otherwise take steps to
collect or recover all debts, rents, proceeds, interests, dividends, goods,
chattels, income from property, damages and all other property, to which the
Partnership may be entitled or which are or may become due the Partnership from
any Person; to commence, prosecute or enforce, or to defend, answer or oppose,
contest and abandon all legal proceedings in which the Partnership is or may
hereafter be interested; and to settle, compromise or submit to arbitration any
accounts, debts, claims, dispute and matters which may arise between the
Partnership and any other Person and to grant an extension of time for the
payment or satisfaction thereof on any terms, with or without security;
J. Make arrangements for financing, including the taking of
all action deemed necessary or appropriate by the General Partner to cause any
approved loans to be closed;
K. Take all reasonable measures necessary to insure compliance
by the Partnership with applicable arrangements, and other contractual
obligations and arrangements entered into by the Partnership from time to time
in accordance with the provisions of this Agreement, including periodic reports
as required to lenders and using all due diligence to insure that the
Partnership is in compliance with its contractual obligations;
L. Maintain the Partnership's books and records;
M. Prepare and deliver, or cause to be prepared and delivered
by the Partnership's Accountants, all financial and other reports with respect
to the operations of the Partnership, and preparation and filing of all Federal
and state tax returns and reports; and
N. Organize one or more partnerships or corporations which are
controlled, directly or indirectly, by the Partnership and make any capital
contributions required pursuant to the partnership agreements of any such
partnerships.
9.2 [Intentionally Omitted].
9.3 LIMITATIONS ON POWERS AND AUTHORITIES OF PARTNERS.
Notwithstanding the powers of the General Partner set forth in Section 9.1
above, the General Partner shall have no right or power to do any of the
following:
A. Do any act in contravention of this Agreement, or any
amendment hereto;
B. Do any act which would make it impossible to carry on the
ordinary business of the Partnership, except to the extent that such act is
specifically permitted by the terms hereof;
C. Possess Partnership property or assign rights in specific
Partnership property for other than Partnership purposes; or
25
31
D. Do any act in contravention of applicable law.
9.4 TITLE HOLDER. To the extent allowable under applicable law,
title to all or any part of the properties of the Partnership may be held in
the name of the Partnership, the General Partner or any other individual,
corporation, partnership, trust or otherwise, 100% of the beneficial interest
in which shall at all times be vested in the Partnership. Any such title
holder shall perform any and all of its respective functions to the extent and
upon such terms and conditions as may be determined from time to time by the
General Partner.
9.5 COMPENSATION OF THE GENERAL PARTNER. The General Partner shall
not be entitled to any compensation for services rendered to the Partnership
solely in its capacity as General Partner except with respect to reimbursement
for (i) those costs and expenses constituting Administrative Expenses and (ii)
such other amounts for which reimbursement is provided in this Agreement.
9.6 STANDARD OF CONDUCT.
A. Each Partner and each Person designated or delegated by a
Partner shall discharge its or his respective duties as a Partner or a designee
or delegate of a Partner in a manner it or he reasonably believes to be in the
best interests of the ▇▇▇▇▇▇▇ Group as a whole, including, without limitation,
the interests of the shareholders of the General Partner. For purposes hereof,
a person acting in a manner which either (i) is in the best interests of the
shareholders of the General Partner or (ii) furthers compliance with the REIT
Requirements, shall be deemed to be acting in the best interests of the ▇▇▇▇▇▇▇
Group and shall be deemed to satisfy his standard of conduct hereunder.
B. Without limiting the scope of the protections afforded by
the foregoing Section 9.6.A, no officer, director, employee or shareholder of
the General Partner, and no Partner or Person designated or delegated by a
Partner, shall be liable for any actions or omissions taken by him or her,
excepting for any actions or omissions which constitute actual fraud, gross
negligence, or deliberately dishonest conduct. The foregoing limitations on
liability include, but are not limited to, liability arising from claims by
Limited Partners, individually and/or derivatively, for alleged breaches of
fiduciary duty against any officer, director, employee or shareholder of the
General Partner or any Partner or Person designated or delegated by a Partner
hereunder.
C. Each Partner and each Person or Persons designated or
delegated by a Partner shall, in the performance of its or his duties, be fully
protected in relying in good faith upon the records of the Partnership and upon
such information, opinions, reports or statements presented to such Partner or
such Person or Persons designated or delegated by a Partner, as applicable, by
any Person (including, without limitation, legal counsel and public
accountants) as to matters that such Partner, or such Person or Persons
designated or delegated by a Partner reasonably believes are within such Person
s professional or expert competence and who has been selected with reasonable
care by or on behalf of the Partnership, such Partner, or such Person or
Persons designated or delegated by a Partner.
26
32
9.7 WAIVER AND INDEMNIFICATION.
A. Neither the General Partner, any Person acting on its
behalf, nor any Person designated or delegated by the General Partner pursuant
hereto, shall be liable, responsible or accountable in damages or otherwise to
the Partnership or to any Partner for any acts or omissions performed or
omitted to be performed by them within the scope of the authority conferred
upon the General Partner by this Agreement and the Act, provided that the
General Partner's or such other Person's action or omission to act was taken in
good faith and in the belief that such action or omission was in the best
interests of the ▇▇▇▇▇▇▇ Group as a whole, including, without limitation, the
interests of the shareholders of the General Partner, and, provided further,
that the General Partner's or such other Person's actions or omissions shall
not constitute actual fraud or gross negligence or deliberately dishonest
conduct. The Partnership shall, and hereby does, indemnify and hold harmless
the General Partner and its Affiliates and any individual acting on their
behalf from any loss, damage, claim or liability, including, but not limited
to, reasonable attorneys fees and expenses, incurred by them by reason of any
act performed by them in accordance with the standards set forth above or in
enforcing the provisions of this indemnity; provided, however, except as
provided in Article 14, no Partner shall have any personal liability with
respect to the foregoing indemnification, any such indemnification to be
satisfied solely out of the assets of the Partnership.
B. Any Person entitled to indemnification under this Agreement
shall be entitled to receive, upon application therefor, advances to cover the
costs of defending any proceeding against such Person; provided, however, that
such advances shall be repaid to the Partnership without interest, if such
Person is found by a court of competent jurisdiction upon entry of a final
judgment not to be entitled to such indemnification. All rights of the
indemnity hereunder shall survive the dissolution of the Partnership; provided,
however, that a claim for indemnification under this Agreement must be made by
or on behalf of the Person seeking indemnification prior to the time the
Partnership is liquidated hereunder. The indemnification rights contained in
this Agreement shall be cumulative of, and in addition to, any and all rights,
remedies and recourse to which the person seeking indemnification shall be
entitled, whether at law or at equity. Indemnification pursuant to this
Agreement shall be made solely and entirely from the assets of the Partnership
and no Partner shall be liable therefor.
9.8 OTHER ACTIVITIES OF PARTNERS AND AGREEMENTS WITH RELATED
PARTIES. The General Partner shall devote its full-time effort in furtherance
of the business of the ▇▇▇▇▇▇▇ Group, it being expressly understood that the
General Partner may conduct its activities directly, through members of the
▇▇▇▇▇▇▇ Group as well as and through the Partnership, as the General Partner
determines is appropriate in its sole and absolute discretion. Without
limiting the foregoing, the General Partner, either directly or through other
members of the ▇▇▇▇▇▇▇ Group other than the Partnership, may acquire, own,
manage, develop, improve, lease, invest in or otherwise deal with commercial
real estate including, without limitation, any shopping center, office building
or retail project. Except as may otherwise be agreed to in writing, each
Limited Partner and its affiliates shall be free to engage in, to conduct or to
participate in any business or activity whatsoever, including, without
limitation, the acquisition, development,
27
33
management and exploitation of real and personal property (other than property
of the Partnership), without any accountability, liability or obligation
whatsoever to the Partnership or to any other Partner, even if such business or
activity competes with or is enhanced by the business of the Partnership. The
General Partner, in the exercise of its power and authority under this
Agreement, may contract and otherwise deal with, or otherwise obligate the
Partnership to deal with, entities in which the General Partner or any one or
more of the officers, directors or stockholder of the General Partner may have
an ownership or other financial interest, whether direct or indirect.
9.9 OTHER MATTERS CONCERNING THE GENERAL PARTNER.
A. The General Partner shall be protected in relying, acting
or refraining from acting on any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, bond, debenture,
or other paper or document believed by it to be genuine and to have been signed
or presented by the proper party or parties.
B. The General Partner may exercise any of the powers granted
or perform any of the duties imposed by this Agreement either directly or
through agents. The General Partner may consult with counsel, accountants,
appraisers, management consultants, investments bankers and other consultants
selected by it, each of whom may serve as consultants for the Partnership. An
opinion by any consultant on a matter which the General Partner believes to be
within its professional or expert competence shall be full and complete
protection as to any action taken or omitted by the General Partner based on
the opinion and taken or omitted in good faith. The General Partner shall not
be responsible for the misconduct, negligence, acts or omissions of any
consultant or contractor of the Partnership or of the General Partner, and
shall assume no obligations other than to use due care in the selection of all
consultants and contractors.
C. No mortgagee, grantee, creditor or any other person dealing
with the Partnership shall be required to investigate the authority of the
General Partner or secure the approval of or confirmation by any Limited
Partner of any act of the General Partner in connection with the conduct of the
Partnership business.
D. The General Partner may retain such persons or entities as
it shall determine (including the General Partner or any entity in which the
General Partner shall have an interest or with which it is affiliated) to
provide services to or on behalf of the Partnership. The General Partner shall
be entitled to reimbursement from the Partnership for its out-of-pocket
expenses (including, without limitation, amounts paid or payable to the General
Partner or any entity in which the General Partner shall have an interest or
with which it is affiliated) incurred in connection with Partnership business.
Such expenses shall be deemed to include those expenses required in connection
with the administration of the Partnership such as the maintenance of
Partnership books and records, management of the Partnership property and
assets and preparation of information respecting the Partnership needed by the
Partners in the preparation of their individual tax returns.
28
34
9.10 PARTNER EXCULPATION. Except as provided in Article 14 hereof
and except for fraud, willful misconduct and gross negligence, no property or
assets of any Partner, other than its interest in the Partnership shall be
subject to levy, execution or other enforcement procedures for satisfaction of
judgment (or other judicial process) in connection with the debts or
liabilities of the Partnership or in connection with this Agreement. To the
fullest extent permitted by law, no officer, director or shareholder of the
Partnership shall be liable to the Partnership or any Partner for money damages
or recision except for (i) active and deliberate dishonesty established by a
final judgment or (ii) actual receipt of an improper benefit or profit in
money, property or services. This Agreement is executed by an officer of the
General Partner solely as an officer of the same and not in his own individual
capacity. Except as provided in Article 14 hereof, no advisor, director,
participant or agent of any Partner (or of any partner of a Partner) shall be
personally liable in any matter or to any extent under or in connection with
this Agreement, and the Partnership, each Partner and their respective
successors or assigns shall look solely to the interest of the other Partners
in the Partnership for the payment of any claim or for any performance
hereunder.
10. BANKING. The funds of the Partnership shall be kept in accounts
designated by the General Partner and all withdrawals therefrom shall be made
on such signature or signatures as shall be designated by the General Partner.
11. Accounting.
-----------
11.1 FISCAL YEAR. The fiscal and taxable year of the Partnership
shall end on the last day of December of each year, unless another fiscal year
end is selected by the General Partner.
11.2 BOOKS OF ACCOUNT. The Partnership books of account shall be
maintained at the principal office designated in Section 2.3 above or at such
other locations and by such person or persons as may be designated by the
General Partner. The Partnership shall pay the expense of maintaining its
books of account. Each Partner shall have, during reasonable business hours
and upon reasonable prior notice, access to the books of the Partnership and,
in addition, at its expense, shall have the right to copy such books. The
General Partner, at the expense of the Partnership, shall cause to be prepared
and distributed to the Partners annual financial data sufficient to reflect the
status and operations of the Partnership and its assets and to enable each
Partner to file its federal income tax return.
11.3 REPORTS. The General Partner shall cause to be submitted to the
Limited Partner Representatives promptly upon receipt of the same from the
Accountants and in no event later than April 1 of each year, copies of the
consolidated Audited Financial Statements for the Partnership and the Financing
Partnership, together with the reports thereon, and all supplementary schedules
and information, prepared by the Accountants. The Partnership shall also cause
to be prepared such reports and/or information as are necessary for the General
Partner to determine its qualification as a REIT and its compliance with REIT
Requirements.
11.4 AUDITS. Not less frequently than annually, the books and
records of the Partnership shall be audited by the Accountants. The General
Partner shall, unless determined
29
35
otherwise by the General Partner, engage the Accountants to audit the books and
records of the Financing Partnership and any other consolidated subsidiary of
the Partnership.
11.5 METHOD OF ACCOUNTING. Except for purposes of Article 7 and the
maintenance of Capital Accounts, the Partnership books of account shall be
maintained and kept, and its income, gains, losses and deductions shall be
accounted for, in accordance with sound principles of accounting consistently
applied, or such other method of accounting as may be adopted hereafter by the
General Partner. All elections and options available to the Partnership for
federal or state income tax purposes shall be taken or rejected by the
Partnership in the sole discretion of the General Partner.
11.6 TAX ELECTION. All elections required or permitted to be made by
the Partnership under any applicable tax law shall be made by the General
Partner in its sole discretion.
11.7 TAX MATTERS PARTNER. The General Partner is hereby designated
the Tax Matters Partner (hereinafter referred to as the TMP") of the
Partnership and shall have all the rights and obligations of the TMP under the
Code.
11.8 ADMINISTRATIVE ADJUSTMENTS. If the TMP receives notice of a
Final Partnership Administrative Adjustment (the "FPAA") or if a request for an
administrative adjustment made by the TMP is not allowed by the United States
Internal Revenue Service (the "IRS") and the IRS does not notify the TMP of the
beginning of an administrative proceeding with respect to the Partnership s
taxable year to which such request relates (or if the IRS so notifies the TMP
but fails to mail a timely notice of an FPAA), the TMP may, but shall not be
obligated to, petition a court for readjustment of partnership items. In the
case of notice of an FPAA, if the TMP determines that the United States
District Court or Claims Court is the most appropriate forum for such petition,
the TMP shall notify each person who was a Partner at any time during the
Partnership's taxable year to which the IRS notice relates of the approximate
amount by which the IRS notice relates of the approximate amount by which its
tax liability would be increased (based on such assumptions as the TMP may in
good faith make) if the treatment of partnership items on his return was made
consistent with the treatment of partnership items on the Partnership's return,
as adjusted by the FPAA. Each such person shall deposit with the TMP, for
deposit with the IRS, the approximate amount of his increased tax
liability together with a written agreement to make additional deposits if
required to satisfy the jurisdictional requirements of the Court, within thirty
days after the TMP's notice to such person.
12. Transfers of Partnership Interests.
-----------------------------------
12.1 CONSENT. By execution of this amended and restated Agreement,
▇▇▇▇▇▇ and the Limited Partners consent to (i) the Merger, (ii) ▇▇▇▇▇▇▇
becoming the General Partner of the Partnership and (iii) the terms of this
amended and restated Agreement. The General Partner may, in its sole and
absolute discretion, transfer, assign, sell, encumber or otherwise dispose of
all or any part of its interest in the Partnership, without the consent of the
Limited Partners; provided, however, that, for a period of twenty-four (24)
months after the effective
30
36
time of the Merger, the General Partner shall not, without the consent of a
majority of the Limited Partners, transfer, assign, sell, encumber or otherwise
dispose of all or any part of its interest in the Partnership to any of its
Affiliates other than an Affiliate whose securities will, in connection with
such transfer, become issuable upon redemption of the Units. Nothing in this
Section 12.1 shall preclude the transfer of Units to the extent necessary to
provide that the Partners (other than the General Partner) are entitled to at
least 1% in the aggregate of the distributions to the Partners pursuant to
Section 8.4 for the taxable year and subsequent taxable years.
12.2 LIMITED PARTNERS.
A. No Limited Partner or substituted Limited Partner shall,
without the prior written consent of the General Partner which consent may be
withheld in its sole and absolute discretion, transfer, assign, sell, encumber
or otherwise dispose of (a Transfer") all or any part of his interest in the
Partnership, except (i) as otherwise permitted by Section 13.2 of this
Agreement and for intervivos intra-family transfers for estate planning
purposes, and (ii) for pledges of Units by Limited Partners to secure the
repayment of a loan, provided that the Limited Partner shall have (A) first
obtained the written agreement of the pledgee to exercise its redemption rights
with respect to any pledged Units pursuant to Section 3.2.C immediately upon
taking any action with respect to such Units and (B) submitted a copy of such
agreement and pledge to the General Partner. Any Transferee (as defined below)
of Units transferred as permitted hereby shall be subject to the provisions of
Article 14 hereof to the extent applicable. A Limited Partner shall notify
the General Partner of any Transfers of beneficial interest or other interest
which occurs without a transfer of record ownership, as well as any pledge or
other collateral transfer. No part of the interest of a Limited Partner shall
be subject to the claims of any creditor, any spouse for alimony or support, or
to legal process, or be voluntarily or involuntarily alienated or encumbered,
except as may be specifically provided for in Section 12.2.A or Section 13.2 of
this Agreement. A Limited Partner shall not be permitted to retire or withdraw
from the Partnership except as expressly permitted by this Agreement.
B. An assignee, legatee, distributee or other transferee
(whether by conveyance, operation of law or otherwise) (a "Transferee") of all
or any portion of a Limited Partner's interest in the Partnership shall be
entitled to receive distributions hereunder attributable to such interest
acquired by reason of such Transfer, from and after the effective date of the
Transfer of such interest; provided, however, anything in this Agreement to the
contrary notwithstanding, except as provided in Section 12.2.A or 13.2, (i) no
Transfer by a Limited Partner shall be effective until such Transfer has been
consented to by the General Partner, (ii) no Transferee shall be considered a
substituted Limited Partner, (iii) the Partnership and the General Partner
shall be entitled to treat the transferor of such interest as the absolute
owner thereof in all respects, and shall incur no liability for distributions
which are made to such transferor until such time as the written instrument of
Transfer has been received by the General Partner and the "effective date" of
the Transfer has passed, and (iv) the General Partner shall have the right to
require any such transferor to have such transferor's Partnership Interest
redeemed in accordance with the provisions of Section 3.2 hereof. The
"effective date" of any Transfer shall be the last day of the month set forth
on the written
31
37
instrument of Transfer or such other date consented to in writing by the
General Partner as the "effective date."
C. Notwithstanding anything to the contrary contained in this
Article 12, (a) no Transfer shall be effective to the extent that such
Transfer, by treating the Unit or Partnership Interest so transferred as if it
had been tendered for redemption and then acquired by the General Partner for
Common Stock in accordance with Section 3.2 hereof, would be prohibited by or
violate any provision of the Charter of the General Partner (including those
limiting the ownership of Common Stock in certain instances) and (b) no
Transfer of a Partnership Interest by any Partner shall be made (i) to any
person or entity that lacks the legal right, power or capacity to own a
Partnership Interest, (ii) in violation of applicable law, (iii) if such
Transfer would cause the General Partner to fail to qualify as a REIT, (iv) if
such Transfer would cause a termination of the Partnership for federal income
tax purposes (unless the General Partner consents to such transfer), (v) if
such Transfer would, in the opinion of counsel to the Partnership, cause the
Partnership or the Financing Partnership (or any other entity taxed as a
partnership for federal income tax purposes) (A) to cease to be classified and
taxed as a partnership for federal income tax purposes or (B) to be a publicly
traded partnership within the meaning of Section 7704 of the Code, (vi) if
such Transfer would cause the Partnership to become, with respect to any
employee benefit plan subject to Title 1 of ERISA, a "party-in-interest" (as
defined in Section 3(14) of ERISA) or a "disqualified person" (as defined in
Section 4975(c) of the Code), or (vii) if such Transfer would, in the opinion
of counsel to the Partnership, cause any portion of the assets of the
Partnership to constitute assets of any employee benefit plan pursuant to
Department of Labor Regulations Section 2510.3-101.
12.3 ADMISSION ADJUSTMENTS. The General Partner, when necessary,
shall cause this Agreement to be amended from time to time to reflect the
addition or withdrawal of Partners, including the corresponding adjustments to
Percentage Interests and Units required pursuant to Section 3.1.
13. Rights and Obligations of the Limited Partners.
-----------------------------------------------
13.1 NO PARTICIPATION IN MANAGEMENT. Except as expressly permitted
hereunder, the Limited Partners shall not take part in the management 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.
13.2 DEATH, LEGAL INCOMPETENCY, ETC. OF A LIMITED PARTNER. The
death, legal incompetency, insolvency, dissolution or bankruptcy of a Limited
Partner shall not dissolve or terminate the Partnership. Upon ten Trading Days
notice to the General Partner of the death or incapacity of an individual
Limited Partner, such individual Limited Partner's interest in the Partnership
shall be transferred either by will, the laws of intestacy or otherwise to the
legal representative or successor of such individual Limited Partner who shall
be bound in all respects by the terms of this Agreement, subject to the General
Partner's right to redeem such interest in accordance with the provisions of
Section 3.2 hereof.
32
38
13.3 NO WITHDRAWAL. No Limited Partner may withdraw from the
Partnership without the prior written consent of the General Partner.
13.4 DUTIES AND CONFLICTS. The General Partner recognizes that the
Limited Partners and their Affiliates have or may have other business
interests, activities and investments, some of which may be in conflict or
competition with the business of the Partnership, and that such persons are
entitled to carry on such other business interests, activities and investments.
The Limited Partners and their Affiliates may engage in or possess an interest
in any other business or venture of any kind, independently or with others, on
their own behalf or on behalf of other entities with which they are affiliated
or associated, and such persons may engage in any activities, whether or not
competitive with the Partnership, without any obligation to offer any interest
in such activities to the Partnership or to any Partner. Neither the
Partnership nor any Partner shall have any right, by virtue of this Agreement,
in or to such activities, or the income or profits derived therefrom, and the
pursuit of such activities, even if competitive with the business of the
Partnership, shall not be deemed wrongful or improper.
14. Indemnification and Security Interest.
--------------------------------------
14.1 [Intentionally Omitted].
14.2 INDEMNITY COLLATERAL. Indemnity Collateral shall mean with
respect to the TTC Guarantors: (a) the shares of Common Stock and Units held
or otherwise beneficially owned by the TTC Guarantors and their family members
which are set forth on EXHIBIT F hereto; (b) any shares of Common Stock
received by the TTC Guarantors as a result of the exchange of Units for shares
of Common Stock; (c) any Units transferred by the TTC Guarantors to a family
member for estate planning purposes in accordance with Section 12.2.A(i)
hereof; and (d) stock dividends, stock splits or other securities received with
respect to the shares of Common Stock or Units described in (a), (b) or (c),
but expressly excluding any cash dividends payable with respect to Units or
shares of Common Stock prior to any claim by an Indemnified Party hereunder.
▇▇.▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇.
A. With respect to the Commons of Chicago Ridge, the TTC
Guarantors agree to indemnify and hold harmless the General Partner and the
Partnership and each of their subsidiaries and all members of the ▇▇▇▇▇▇▇ Group
and their respective officers, directors, employees and representatives (each,
an "Indemnified Party" and collectively, the "Indemnified Parties") from and
against all demands, claims, actions or causes of action, assessments, losses,
fines, penalties, damages, liabilities, costs and expenses (including without
limitation, reasonable attorneys' fees and expenses of counsel chosen by the
Indemnified Parties and costs of litigation and reasonable fees and expenses of
accountants chosen by the Indemnified Parties) and charges sustained or
incurred by any of the Indemnified Parties as a result of or arising out of any
matter, condition or act at the Commons of Chicago Ridge involving any
Environmental Claim, which matter, condition or act existed on or arose prior
to the date of the Prior Agreement (whether or not disclosed in
33
39
the environmental reports set forth as exhibits to the Contribution Agreements
or as described in the Prospectus or other reports filed by ▇▇▇▇▇▇ with the SEC
or otherwise known by any of the TTC Guarantors), except for the Remediation
Work (as defined in that certain Agreement Concerning Commons of Chicago Ridge,
dated as of October 30, 1995, by and among ▇▇▇▇▇▇▇, the Partnership and the TTC
Guarantors); provided that, no claim for indemnity may be maintained pursuant
to this Section 14.3, unless such Indemnified Party shall have delivered a
written notice specifying the details of such claim to the TTC Guarantors on or
before October 4, 2003.
The indemnification obligation set forth in the preceding paragraph shall
cover all demands, claims, actions or causes of action, assessments, losses,
fines, penalties, damages, liabilities, costs and expenses (including without
limitation, reasonable attorneys fees and expenses of counsel chosen by the
Indemnified Parties and costs of litigation and reasonable fees and expenses of
accountants chosen by the Indemnified Parties) and charges sustained or
incurred by any of the Indemnified Parties as a result of or arising out of any
matter, condition or act at the Commons of Chicago Ridge Annex involving any
Environmental Claim only to the extent that such matter, condition or act is
the result of or arises out of a matter, condition or act at the Commons of
Chicago Ridge that existed on or arose prior to the date of the Prior
Agreement.
B. The Indemnified Parties shall have full recourse to the TTC
Guarantors and all of their assets for the indemnity obligation set forth in
this Section 14.3; provided that the Indemnified Parties shall first use their
best efforts to realize upon their security interests in the Indemnity
Collateral owned by the TTC Guarantors prior to asserting any recourse against
any other assets owned by the TTC Guarantors.
C. The Indemnified Parties agree to the following with respect
to any indemnification obligations of the TTC Guarantors hereunder:
(i) to furnish the TTC Guarantors with copies of all claims,
reports, orders, or other documentation which in any material
way relate to the subject matter of an indemnity obligation
asserted or which may be asserted against a TTC Guarantor as
soon as possible after the same are received;
(ii) to advise the TTC Guarantors of meetings with the Illinois EPA
with respect to any remediation plan or other material matter
bearing directly on such indemnity obligation of the TTC
Guarantors and invite the TTC Guarantors to attend such meeting;
(iii) not to agree to a remediation plan with the Illinois EPA
without first disclosing the plan to the TTC Guarantors and
reasonably considering in good faith any comments of the
TTC Guarantors thereon or any alternate remediation plan
proposed by the TTC Guarantors;
(iv) that any remediation plan proposed by the Indemnified Parties
shall propose a scope of work appropriate to a retail use of the
subject
34
40
premises and not to a more rigorous standard of remediation,
except as may be required by applicable laws;
(v) that the TTC Guarantors and their consultants shall have
reasonable access to the premises which are the subject of the
indemnification obligation for testing, provided that the TTC
Guarantors shall be responsible for any claims, losses, costs or
expenses of Indemnified Parties arising therefrom;
(vi) not to settle any Environmental Claims which are subject to an
indemnification obligation hereunder without first disclosing the
terms of the settlement to the TTC Guarantors and reasonably
considering in good faith any comments of the TTC Guarantors
thereon;
(vii) to use on-site any materials excavated in connection with
construction on the Commons of Chicago Ridge, to the extent
deemed appropriate by the Indemnified Parties in light of
relevant legal requirements and construction standards;
provided that if the transport or disposal off-site of any
"special waste", including "hazardous waste" (both as
defined under Illinois statutes and regulations), or of any
other material subject to special or hazardous waste
requirements, has an incremental cost above the cost that
would be incurred if such materials were not so classified
or regulated, the TTC Guarantors shall bear such
incremental cost; and
(viii) to obligate contractors with respect to construction on the
Commons of Chicago Ridge to require workers to wear
protective clothing and apparatus to the extent required by
law if, in connection with the construction, such workers
will be exposed to special or hazardous wastes or other
materials subject to special or hazardous waste
requirements.
The agreements of the Indemnified Parties set forth in sub-sections (i)
through (viii) above shall not be deemed to require the consent or approval of
the TTC Guarantors as to any actions by the Indemnified Parties relating to the
subject matter of any indemnity obligation.
14.4 TTC GUARANTORS.
A. With respect to indemnity obligations of the TTC Guarantors
under Section 14.3 hereof, the TTC Guarantors have granted and hereby confer,
subject to the provisions of Section 14.4.D hereof, to the General Partner a
lien upon and a continuing security interest in, the Indemnity Collateral which
shall be security for the indemnity obligations of the TTC Guarantors, as
applicable, under this Article 14. Notwithstanding the foregoing, (i) Units
owned by the TTC Guarantors and their family members subject to the lien and
security interest granted under this Section 14.4.A may be transferred in
accordance with the provisions of Section 13.2 hereof free and clear of such
lien and security interest and
35
41
(ii) shares of Common Stock of the General Partner owned by the TTC Guarantors
and their family members subject to the lien and security interest granted
under this Section 14.4.A may be transferred free and clear of such lien and
security interest; provided, however, that, in each instance, once a claim for
indemnity has been made in accordance with this Article 14, the TTC Guarantors
may not under any circumstance sell or otherwise transfer such Units or shares
of Common Stock or any other Indemnity Collateral. In addition, once an
indemnity claim has been made hereunder, all cash or other dividends made with
respect to Units or shares of Common Stock shall be considered Indemnity
Collateral and shall be placed by the General Partner in an escrow account
until such claim is resolved.
B. The TTC Guarantors have (i) delivered to the General
Partner certificates representing all of the shares of Common Stock owned by
them in such manner and accompanied by such instruments, including stock
transfer powers duly endorsed in blank, as shall be necessary to grant the
General Partner a fully perfected first priority security interest in such
shares and in any shares of Common Stock that may, after the date hereof, be
issued to the TTC Guarantors by stock dividend, stock split or similar
distribution and (ii) prepared and filed UCC financing statements and such
other documents and have taken other action necessary to grant the General
Partner a fully perfected first priority security interest in all of their
respective Units. In the event the TTC Guarantors are determined to have an
indemnification obligation pursuant to Section 14.4.D hereof, then each
Indemnified Party shall have all of the rights now or hereafter existing under
applicable law, and all rights as a secured creditor under the Uniform
Commercial Code ("UCC") in all relevant jurisdictions, with respect to the
Indemnity Collateral, and the TTC Guarantors agree to take all such actions as
may be reasonably requested of them by an Indemnified Party to ensure that the
Indemnified Parties can realize on such security interest.
C. In the event an Indemnified Party asserts, within the time
period set forth in Section 14.3.A hereof, that the TTC Guarantors have an
indemnification obligation to an Indemnified Party under this Article 14, and
TTC Guarantors are determined to have an indemnification obligation pursuant to
Section 14.4.D hereof, then (x) the General Partner shall, to the full extent
permitted by law, be deemed, without payment of further consideration or the
taking of further action by the TTC Guarantors or any of their subsidiaries, to
have acquired from any or all of the TTC Guarantors such portion of the
Indemnity Collateral as shall be equal in value (based, in the case of Units,
on the number of shares of Common Stock for which such Units could be
exchanged, computed as of the date the Indemnity Collateral is acquired by the
General Partner pursuant to this Section 14.3.C, and in the case of the Units
or the Common Stock, on the Current Per Share Market Price computed as of the
date of such acquisition) to the amount recoverable from or payable by or
indemnified by the TTC Guarantors under this Article 14, and (y) the
Indemnified Parties shall have all of the rights now or hereafter existing
under applicable law and all rights as a secured creditor under the UCC in all
relevant jurisdictions, with respect to the Indemnity Collateral and the TTC
Guarantors agree to take all such actions as may be reasonably requested of
them by the General Partner to ensure that the Indemnified Parties can realize
on such security interest.
D. Each of the Indemnified Parties shall have the right to
submit any dispute concerning whether a particular environmental claim is
within the parameters of
36
42
Section 14.3.A to arbitration in accordance with the provisions of Article 18
hereof. The lien and the security interest in Indemnity Collateral granted
hereunder shall not be released with respect to the TTC Guarantors shares of
Common Stock and Units until all of the indemnification obligations of the TTC
Guarantors hereunder have expired or been satisfied in accordance with their
terms; provided, however, that Units owned by the TTC Guarantors and their
family members may be transferred in accordance with this Agreement and shares
of Common Stock owned by the TTC Guarantors and their family members may be
transferred free and clear of such lien and security interest, in each such
case subject to the limitations of Section 14.4.A. Upon satisfaction of the
conditions to the release of the lien and security interest in the Indemnity
Collateral set forth above, the General Partner shall prepare and file all
documents and shall take all other action necessary on its part to release such
security interest in the applicable Indemnity Collateral.
15. Liquidation and Dissolution of Partnership.
-------------------------------------------
15.1 TERMINATION EVENTS. The Partnership shall be dissolved and its
affairs wound up in the manner hereinafter provided upon the occurrence of an
event described in Article 6 hereof.
15.2 METHOD OF LIQUIDATION. Upon the happening of any of the events
specified in Article 6 hereof, the General Partner (or if there be no General
Partner, a liquidating trustee selected by those Limited Partners holding in
the aggregate more than fifty percent (50%) of the Percentage Interests held by
all Limited Partners) shall immediately commence to wind up the Partnership s
affairs and shall liquidate the assets of the Partnership as promptly as
possible, unless the General Partner, or the liquidating trustee, shall
determine that an immediate sale of Partnership assets would cause undue loss
to the Partnership, in which event the liquidation may be deferred for a
reasonable time. The Partners shall continue to share Operating Cash Flow and
Capital Cash Flow during the period of liquidation in the same proportions as
before dissolution. The proceeds from liquidation of the Partnership,
including repayment of any debts of Partners to the Partnership, shall be
applied in the order of priority as follows:
A. Debts of the Partnership, including repayment of principal
and interest on loans and advances made by the General Partner; then
B. To the establishment of any reserves deemed necessary or
appropriate by the General Partner, or by the person(s) winding up the affairs
of the Partnership in the event there is no remaining General Partner of the
Partnership, for any contingent or unforeseen liabilities or obligations of the
Partnership. Such reserves established hereunder shall be held for the purpose
of paying any such contingent or unforeseen liabilities or obligations and, at
the expiration of such period as the General Partner, or such person(s) deems
advisable, the balance of such reserves shall be distributed in the manner
provided hereinafter in this Section 15.2 as though such reserves had been
distributed contemporaneously with the other funds distributed hereunder; then
37
43
C. To the Partners in accordance with the provisions of
Sections 8.4 and 8.5; provided, however, that if the Partnership is liquidated
other than in connection with the liquidation of the ▇▇▇▇▇▇▇ Group,
distributions to the Partners under this Section 15.2.C shall be made in the
following order and priority:
1. First, to the Limited Partners as a class an amount
equal to the lesser of (a) the sum of (i) the amount (or portion thereof) of
any Current Yield which has not been paid to the Limited Partners pursuant to
Section 8.4.A for any prior period, plus (ii) the product of (x) the Conversion
Factor, (y) the number of Units held by the Limited Partners and (z) the
Current Per Share Market Price of the Common Stock as of the close of the
period ending with the liquidation and (b) 99% of the liquidation proceeds
remaining after the application of Section 15.2.A-B hereof; and
2. Second, the remainder of liquidation proceeds shall be
distributed to the General Partner.
15.3 DISTRIBUTION IN KIND. The General Partner may make
distributions pursuant to this Agreement in cash or in kind, as it determines
is appropriate in its sole discretion; provided that no in-kind distributions
shall be made to any Limited Partner other than the General Partner. In the
event the General Partner determines that it is necessary or desirable to make
a distribution of Partnership property in kind, the General Partner may
transfer and convey such property to the distributees as tenants in common,
subject to any liabilities attached thereto, so as to vest in them undivided
interests in the whole of such property in proportion to their respective
rights to share in the proceeds of the sale of such property (other than as a
creditor) in accordance with the provisions of Section 15.2 hereof.
15.4 DOCUMENTATION OF LIQUIDATION. Upon the completion of the
resolution and liquidation of the Partnership, the Partnership shall terminate
and the liquidating trustee shall have the authority to execute and record any
and all documents or instruments required to effect the dissolution,
liquidation and termination of the Partnership.
15.5 LIABILITY OF THE LIQUIDATING TRUSTEE. The liquidating trustee
shall be indemnified and held harmless by the Partnership from and against any
and all claims, demands, liabilities, costs, damages and causes of action of
any nature whatsoever arising out of or incidental to the liquidating trustee s
taking of any action authorized under or within the scope of this Agreement;
provided, however, that the liquidating trustee shall not be entitled to
indemnification, and shall not be held harmless, where the claim, demand,
liability, cost, damage or cause of action at issue arose out of:
A. A matter entirely unrelated to the liquidating trustee s
action or conduct pursuant to the provisions of this Agreement; or
B. The proven misconduct or negligence of the liquidating
trustee.
16. POWER OF ATTORNEY. Each Limited Partner hereby irrevocably
constitutes and appoints the Chief Executive Officer, the President and each
person holding the office of
38
44
Executive Vice President of the General Partner, with full power of
substitution, its true and lawful attorney, for him and in his name, place and
▇▇▇▇▇ and for his use and benefit, to sign, swear to, acknowledge, file and
record:
(i) this Agreement, and amendments to this Agreement;
(ii) any certificates, instruments and documents (including
assumed and fictitious name certificates) as may be required by, or may be
appropriate under, the laws of the State of Delaware or any other State or
jurisdiction in which the Partnership is doing or intends to do business, in
order to discharge the purposes of the Partnership or otherwise in connection
with the use of the name or names used by the Partnership;
(iii) any other instrument which may be required to be
filed or recorded by the Partnership on behalf of the Partners under the laws
of any State or by any governmental agency in order for the Partnership to
conduct its business;
(iv) any documents which may be required to effect the
continuation of the Partnership, the admission of a substitute or additional
Partner, or the dissolution and termination of the Partnership, provided such
continuation, admission or dissolution and termination is not in violation of
any provision of this Agreement; and
(v) any documents which may be required or desirable to
have the General Partner appointed, and act as, the Tax Matters Partner as
described in the Code.
The foregoing grant of authority is a special power of attorney coupled with an
interest, is irrevocable and shall survive the death or incapacity of any
individual Limited Partner, and shall survive the delivery of any assignment by
a Limited Partner of the whole or any portion of his interest in the
Partnership.
17. Amendment of Agreement.
-----------------------
17.1 GENERAL. The General Partner, without the consent of the
Limited Partners, may amend this Agreement in any respect by executing a
written instrument setting forth the terms of such amendment; provided,
however, that, except as provided in Section 17.2 hereof, any amendment which
alters or changes (i) the distribution rights of any Limited Partner under
Article 8, or (ii) a Limited Partner's Redemption Rights under Section 3.2,
shall require the consent of Limited Partners (excluding the General Partner)
holding more than 50% of the Partnership Interests.
17.2 MERGER, ETC. OF GENERAL PARTNER. Notwithstanding anything to
the contrary contained herein, in the event that (i) the General Partner or any
of its corporate subsidiaries engages in any merger, consolidation or other
combination with or into another Person in which securities of the General
Partner are being issued, acquired, converted or exchanged, (ii) the General
Partner engages in the sale of all or substantially all of its assets,
39
45
or (iii) the General Partner engages in a reclassification, recapitalization or
change in the outstanding shares of its stock (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 Conversion Factor) which results
in the holders of Common Stock receiving cash, securities or other property
(any of the events listed in clauses (i), (ii) or (iii) hereinafter referred to
as a "Transaction"), the General Partner (or its successor or transferee) may
amend the provisions of this Agreement (including, without limitation, the
definition of Conversion Factor) in any respect in connection with such
Transaction (regardless of whether the amendment alters or changes the
distributions to a Limited Partner or a Limited Partner's Redemption Rights)
without obtaining the consent of any Limited Partner; provided that either (i)
in connection with the Transaction, the Limited Partners are offered the
opportunity to receive for each Unit held by them an amount of cash,
securities, or other property equal to the product of the Conversion Factor and
the amount of cash, securities or other property, if any, paid to a holder of
one share of Common Stock as a result of the Transaction, or (ii) the General
Partner or its corporate subsidiary is the acquiror in such Transaction and the
holders of the Common Stock of the General Partner are not receiving cash,
securities, or other property in such Transaction.
18. Arbitration.
------------
18.1 GENERAL. Notwithstanding anything to the contrary contained in
this Agreement, all claims, disputes and controversies between the parties
hereto (including, without limitation, any claims, disputes and controversies
between the Partnership and any one or more of the Partners and any claims,
disputes and controversies between any one or more Partners and the
indemnification obligations of the TTC Guarantors under Article 14) arising out
of or in connection with this Agreement or the Partnership created hereby, or
any act or failure to act by the General Partner or any other Partner
hereunder, in each case whether or not a party has responded to a claim for
indemnification in accordance with Section 14.4.D, shall be resolved by binding
arbitration in Boston, Massachusetts by J.A.M.S./ENDISPUTE, in accordance with
this Article 18.
18.2 PROCEDURES. Any arbitration called for by this Article 18 shall
be conducted in accordance with the following procedures:
A. The Partnership or any Partner (the "Requesting Party") may
demand arbitration pursuant to Section 18.1 hereof at any time by giving
written notice of such demand (the "Demand Notice") to all other Partners and
(if the Requesting Party is not the Partnership) to the Partnership which
Demand Notice shall describe in reasonable detail the nature of the claim,
dispute or controversy.
B. Within fifteen (15) days after the giving of a Demand
Notice, J.A.M.S./ENDISPUTE shall select and designate in writing three
reputable, disinterested individuals willing to act as an arbitrator of the
claim, dispute or controversy in question.
C. The presentations of the parties hereto in the arbitration
proceeding shall be commenced and completed within sixty (60) days after the
selection of the
40
46
arbitration panel pursuant to subsection B above, and the arbitration panel
shall render its decision in writing within thirty (30) days after the
completion of such presentations. Any decision concurred in by any two (2) of
the arbitrators shall constitute the decision of the arbitration panel, and
unanimity shall not be required.
D. The arbitration panel shall have the discretion to include
in its decision a direction that all or part of the attorneys' fees and costs
of any party or parties and/or the costs of such arbitration be paid by any
other party or parties. On the application of a party before or after the
initial decision of the arbitration panel, and proof of its attorneys' fees and
costs, the arbitration panel shall order the other party to make any payments
directed pursuant to the preceding sentence.
18.3 BINDING CHARACTER. Any decision rendered by the arbitration
panel pursuant to this Section shall be final and binding on the parties
hereto, and judgment thereon may be entered by any state or federal court of
competent jurisdiction.
18.4 EXCLUSIVITY. Arbitration shall be the exclusive method
available for resolution of claims, disputes and controversies described in
Section 18.1 hereof, and the Partnership and its Partners stipulate that the
provisions hereof shall be a complete defense to any suit, action, or
proceeding in any court or before any administrative or arbitration tribunal
with respect to any such claim, controversy or dispute. The provisions of
this Section 18.4 shall survive the dissolution of the Partnership.
18.5 NO ALTERATION OF AGREEMENT. Nothing contained herein shall be
deemed to give the arbitrators any authority, power or right to alter, change,
amend, modify, add to, or subtract from any of the provisions of this
Agreement.
19. Miscellaneous.
--------------
19.1 NOTICES. Any notice, election or other communication provided
for or required by this Agreement shall be in writing and shall be deemed to
have been given when delivered by telecopy or other facsimile transmission
(confirmed by any of the methods that follow) or by hand, the first business
day after sent by overnight courier (such as Federal Express), or on the second
business day after deposit in the United States Mail, certified or registered,
return receipt requested, postage prepaid, properly addressed to the Partner to
whom such notice is intended to be given at the address for the Partner set
forth on the signature pages of this Agreement, or at such other address as
such person may have previously furnished in writing to the Partnership and
each Partner. A copy of all such notices also should be sent to the General
Partner and addressed as follows:
General Partner: E. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, President
▇▇▇▇▇▇▇ Real Estate, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax No. (▇▇▇) ▇▇▇-▇▇▇▇
41
47
With copies to: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ III, Esq.
▇▇▇▇▇▇▇, Procter & ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax No. (▇▇▇) ▇▇▇-▇▇▇▇
19.2 SUCCESSORS AND ASSIGNS. Any person acquiring or claiming an
interest in the Partnership, in any manner whatsoever, shall be subject to and
bound by all of the terms, conditions and obligations of this Agreement to
which his predecessor-in-interest was subject or bound, without regard to
whether such a person has executed a counterpart hereof or any other document
contemplated hereby. No person, including the legal representative, heir or
legatee of a deceased Partner, shall have any rights or obligations greater
than those set forth in this Agreement, and no person shall acquire an interest
in the Partnership or become a Partner thereof except as expressly permitted by
and pursuant to the terms of this Agreement. Subject to the foregoing, and the
provisions of Article 12 above, this Agreement shall be binding upon and inure
to the benefit of the Partners and their respective successors, assigns, heirs,
legal representatives, executors and administrators.
19.3 DUPLICATE ORIGINALS. For the convenience of the Partners, any
number of counterparts hereof may be executed, and each such counterpart shall
be deemed to be an original instrument, and all of which taken together shall
constitute one agreement.
19.4 CONSTRUCTION. The titles of the Sections and subsections herein
have been inserted as a matter of convenience of reference only and shall not
control or affect the meaning or construction of any of the terms or provisions
herein.
19.5 GOVERNING LAW. This Agreement shall be governed by the laws of
the State of Delaware. Except to the extent the Act is inconsistent with the
provisions of this Agreement, the provisions of such Act shall apply to the
Partnership.
19.6 OTHER INSTRUMENTS. The parties hereto covenant and agree that
they will execute such other and further instruments and documents as, in the
opinion of the General Partner, are or may become necessary or desirable to
effectuate and carry out the Partnership as provided for by this Agreement.
19.7 GENERAL PARTNER WITH INTEREST AS LIMITED PARTNER. Except as set
forth to the contrary in this Agreement, if the General Partner has an interest
as a Limited Partner in the Partnership, the General Partner shall, with
respect to such interest, enjoy all of the rights and be subject to all of the
obligations and duties of a Limited Partner.
19.8 GENDER. Whenever the context shall so require, all words herein
in any gender shall be deemed to include the masculine, feminine or neuter
gender, all singular words shall include the plural, and all plural words shall
include the singular.
19.9 PRIOR AGREEMENTS SUPERSEDED. This Agreement supersedes any
prior understandings or written or oral agreements amongst the Partners, or any
of them, respecting
42
48
the within subject matter and contains the entire understanding amongst the
Partners with respect thereto.
19.10 PURCHASE FOR INVESTMENT. Each Partner represents,
warrants and agrees that it has acquired and continues to hold its interest in
the Partnership for its own account for investment only and not for the purpose
of, or with a view toward, the resale or distribution of all or any part
thereof, nor with a view toward selling or otherwise distributing such interest
or any part thereof at any particular time or under any predetermined
circumstances. Each Partner further represents and warrants that it is a
sophisticated investor, able and accustomed to handling sophisticated financial
matters for itself, particularly real estate investments, and that it has a
sufficiently high net worth that it does not anticipate a need for the funds it
has invested in the Partnership in what it understands to be a highly
speculative and illiquid investment.
19.11 WAIVER. No consent or waiver, express or implied, by any
Partner to or of any breach or default by any other Partner in the performance
by such other Partner of its obligations hereunder shall be deemed or construed
to be a consent to or waiver of any other breach of default in the performance
by such other Partner of the same or any other obligations of such Partner
hereunder. Failure on the part of any Partner to complain of any act or
failure to act on the part of any other Partner or to declare any other Partner
in default, irrespective of how long such failure continues, shall not
constitute a waiver by such Partner of its rights hereunder.
19.12 SEVERABILITY. If any provision of this Agreement, or the
application of such provision to any person or circumstance, shall be held
invalid by a court of competent jurisdiction, the remainder of this Agreement,
or the application of such provision to persons or circumstances other than
those to which it is held invalid by such court, shall not be affected thereby.
19.13 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, which when taken together, shall constitute but one original.
19.14 NOTICE FOR CERTAIN TRANSACTIONS. In the event of (a) a
dissolution or liquidation of the Partnership or the General Partner, (b) a
merger, consolidation or combination of the Partnership or the General Partner
with or into another Person (including the events set forth in Section 17.2),
(c) the sale of all or substantially all of the assets of the Partnership or
the General Partner, or (d) the transfer by the General Partner of all or any
part of its interest in the Partnership, the General Partner shall give written
notice thereof to each Limited Partner at least twenty (20) Trading Days prior
to the effective date or, to the extent applicable, record date of such
transaction, whichever comes first.
[Remainder of Page Intentionally Left Blank]
43
49
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first written above.
NOTICE INFORMATION: GENERAL PARTNER:
▇▇▇▇▇▇ Properties Corporation
▇▇ ▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ By: _______________________________
Name:
Title:
LIMITED PARTNERS:
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ___________________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ___________________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ___________________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Ridge Family Partnership
▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ By: _______________________________
Name:
Title:
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ___________________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ___________________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇
44
50
▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
as Joint Tenants
▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ By: _______________________________
Name:
The ▇▇▇▇▇▇ Companies
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ By: _______________________________
Name:
Title:
▇▇▇▇▇▇ State Street, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ By: _______________________________
Name:
Title:
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ___________________________________
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ___________________________________
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Trust
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ By: _______________________________
Name:
Title:
45
▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Trust
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ By: _______________________________
Name:
Title:
▇▇▇▇▇ ▇▇▇▇▇▇ Trust
▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ By: _______________________________
Name:
Title:
▇▇▇▇▇▇ ▇▇▇▇▇▇ Trust
▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ By: _______________________________
Name:
Title:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Trust
▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ By: _______________________________
Name:
Title:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Trust
▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ By: _______________________________
Name:
Title:
46
52
▇▇▇▇▇ ▇▇▇▇▇▇ Trust
▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ By: _______________________________
Name:
Title:
▇▇▇▇▇▇ Evansville, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ By: _______________________________
Name:
Title:
47