EXHIBIT 10.6
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AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
HINES-SUMISEI U.S. CORE OFFICE FUND, L.P.
AUGUST 28, 2003
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TABLE OF CONTENTS
PAGE
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ARTICLE I.................................................................................... 1
SECTION 1.1 Definitions................................................................... 1
SECTION 1.2 Interpretation; Terms Generally............................................... 13
ARTICLE II General Provisions................................................................ 14
SECTION 2.1 Formation and Organization.................................................... 14
SECTION 2.2 Name.......................................................................... 14
SECTION 2.3 Organizational Certificates and Other Filings................................. 14
SECTION 2.4 Principal and Other Offices................................................... 14
SECTION 2.5 Registered Office; Registered Agent........................................... 14
SECTION 2.6 Purpose....................................................................... 15
SECTION 2.7 Powers........................................................................ 15
SECTION 2.8 Fiscal Year................................................................... 15
SECTION 2.9 Term.......................................................................... 15
SECTION 2.10 Feeder Entities.............................................................. 16
SECTION 2.11 REIT Covenant................................................................ 16
ARTICLE III Partnership Capital.............................................................. 16
SECTION 3.1 Initial Capital Contributions and Advances.................................... 16
SECTION 3.2 Capital Commitments........................................................... 16
SECTION 3.3 Initial Offering Period....................................................... 17
SECTION 3.4 Initial Investment Period..................................................... 18
SECTION 3.5 Additional Capital............................................................ 19
SECTION 3.6 Fund Indebtedness............................................................. 19
SECTION 3.7 Issuance of Units............................................................. 20
SECTION 3.8 Redemption Rights............................................................. 20
SECTION 3.9 Priority Redemption Rights.................................................... 22
SECTION 3.10 Repayment of Hines Advances.................................................. 23
SECTION 3.11 Hines Investment............................................................. 23
ARTICLE IV General Partner................................................................... 24
SECTION 4.1 General Partner............................................................... 24
SECTION 4.2 Powers of the General Partner................................................. 24
SECTION 4.3 Time Commitment............................................................... 26
SECTION 4.4 Outside Investments........................................................... 26
SECTION 4.5 Transactions with Affiliates.................................................. 27
SECTION 4.6 Strategic Investors........................................................... 27
SECTION 4.7 Other Activities not Restricted............................................... 28
SECTION 4.8 General Partner as Limited Partner............................................ 28
ARTICLE V Partnership Management............................................................. 28
SECTION 5.1 Fund Structure................................................................ 28
SECTION 5.2 Investment Guidelines......................................................... 29
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SECTION 5.3 Management Board.............................................................. 30
SECTION 5.4 Advisory Committee............................................................ 32
SECTION 5.5 Management Team............................................................... 34
SECTION 5.6 Management Rights of Limited Partners......................................... 35
SECTION 5.7 Advisory Agreements........................................................... 35
SECTION 5.8 Property Services Agreements.................................................. 35
SECTION 5.9 Asset Valuations; Determination of Current Unit Value......................... 36
SECTION 5.10 Management of Operating Companies............................................ 36
SECTION 5.11 Non-Managing General Partner................................................. 37
ARTICLE VI Exculpation and Indemnification................................................... 37
SECTION 6.1 Exculpation of the General Partner............................................ 37
SECTION 6.2 Indemnification of General Partner............................................ 38
SECTION 6.3 Treatment of Management Board and Advisory Committee Members.................. 39
SECTION 6.4 Limited Liability of Limited Partners......................................... 40
SECTION 6.5 Other Activities of Limited Partners.......................................... 40
ARTICLE VII Expenses and Fees................................................................ 40
SECTION 7.1 General Partner Expenses...................................................... 40
SECTION 7.2 Asset Management Fee.......................................................... 40
SECTION 7.3 Acquisition Fees.............................................................. 41
SECTION 7.4 Partnership Expenses.......................................................... 42
SECTION 7.5 Operating Company Expenses.................................................... 42
SECTION 7.6 Organization Expenses......................................................... 43
ARTICLE VIII Capital Accounts; Allocations................................................... 44
SECTION 8.1 Capital Accounts.............................................................. 44
SECTION 8.2 Interest on and Return of Capital............................................. 45
SECTION 8.3 Negative Capital Accounts..................................................... 45
SECTION 8.4 Allocation of Profits......................................................... 45
SECTION 8.5 Allocations of Losses......................................................... 45
SECTION 8.6 Special Allocations........................................................... 46
SECTION 8.7 Curative Allocations.......................................................... 47
SECTION 8.8 Tax Allocations: Code Section 704(c).......................................... 48
ARTICLE IX Distributions..................................................................... 48
SECTION 9.1 Operating Cash Flow........................................................... 48
SECTION 9.2 Capital Cash Flow............................................................. 48
SECTION 9.3 Reinvestment of Capital Cash Flow............................................. 49
SECTION 9.4 Right to Limit Distributions.................................................. 49
SECTION 9.5 Limitations on Distribution Rights............................................ 49
ARTICLE X Transfers; Withdrawals and Defaults................................................ 49
SECTION 10.1 Voluntary Transfer of General Partner Interest............................... 49
SECTION 10.2 Removal of General Partner................................................... 50
SECTION 10.3 Transfers of Units by Hines Partners......................................... 51
SECTION 10.4 Transfers of Units by Limited Partners....................................... 51
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SECTION 10.5 Conditions to Transfer....................................................... 51
SECTION 10.6 Admissions and Withdrawals Generally......................................... 52
SECTION 10.7 Required/Elective Withdrawals................................................ 52
SECTION 10.8 Defaulting Limited Partner................................................... 53
ARTICLE XI Partnership Administration........................................................ 55
SECTION 11.1 Books and Records............................................................ 55
SECTION 11.2 Partnership Auditor.......................................................... 55
SECTION 11.3 Filing of Tax Returns........................................................ 55
SECTION 11.4 Tax Matters.................................................................. 55
SECTION 11.5 Reports to Partners.......................................................... 56
SECTION 11.6 Partnership Meetings......................................................... 57
ARTICLE XII Dissolution, Termination and Winding Up.......................................... 60
SECTION 12.1 Dissolution.................................................................. 60
SECTION 12.2 Termination of Partnership by Majority Fund Vote............................. 60
SECTION 12.3 Winding up................................................................... 60
SECTION 12.4 Liquidating Distributions.................................................... 61
ARTICLE XIII Miscellaneous................................................................... 61
SECTION 13.1 Waiver of Partition.......................................................... 61
SECTION 13.2 Power of Attorney............................................................ 61
SECTION 13.3 Amendments................................................................... 62
SECTION 13.4 Confidentiality.............................................................. 63
SECTION 13.5 Entire Agreement............................................................. 64
SECTION 13.6 Severability................................................................. 64
SECTION 13.7 Notices...................................................................... 65
SECTION 13.8 Governing Law................................................................ 65
SECTION 13.9 Successors and Assigns....................................................... 65
SECTION 13.10 Headings.................................................................... 65
SECTION 13.11 Counterparts................................................................ 65
SECTION 13.12 Third Party Beneficiary..................................................... 65
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LIST OF SCHEDULES:
2.1 Limited Partners
2.7 Approved Agreements
3.1 Initial Capital Contributions and Advances
4.4 Hines Investment Allocation Procedure
5.1A Fund Investors
5.1B Fund Organization Chart
5.3 Initial Management Board
5.5 Initial Management Team
5.11 Non-Managing General Partner Provisions
LIST OF EXHIBITS:
Exhibit A Property Services Agreement Form
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AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
HINES-SUMISEI U.S. CORE OFFICE FUND, L.P.
This AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF
HINES-SUMISEI U.S. CORE OFFICE FUND L.P., a Delaware limited partnership
(together with its successors, the "Partnership"), is entered into as of August
28, 2003 by and among Hines US Core Office Capital LLC, a Delaware limited
liability company, as the General Partner, and Hines US Core Office Capital
Associates II Limited Partnership, a Texas limited partnership, as the Hines
Limited Partner.
RECITALS
WHEREAS, the General Partner and the Hines Limited Partner
entered into the Agreement of Limited Partnership of the Partnership on August
19, 2003 (the "Original Agreement"), and
WHEREAS, the General Partner and the Hines Limited Partner
desire to amend and restate the Original Agreement in its entirety as provided
herein.
NOW, THEREFORE, in consideration of the premises, the terms
and conditions set forth herein, the mutual benefits to be gained by the
performance thereof and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the General Partner and the Hines
Limited Partner hereby amend and restate the Original Agreement in its entirety
as follows:
ARTICLE I
SECTION 1.1 Definitions. As used in this Agreement, the terms
set forth below have the meanings indicated.
"Act": The Delaware Revised Uniform Limited Partnership Act,
as amended from time to time, and any successor statute.
"Acquisition Fee": As defined in Section 7.3.
"Adjusted Capital Account": At any time, the then balance in
the Capital Account of a Partner, after giving effect to the following
adjustments:
(i) add to such Capital Account any amounts that
such Partner is obligated to restore under any provision of
this Agreement or such Partners' Subscription Agreement or is
deemed obligated to restore as described in the
penultimate sentences of Regulations Section 1.704-2(g)(1) and
Regulations Section 1.704-2(i)(5), or any successor
provisions; and
(ii) subtract from such Capital Account the items
described in Regulations Sections 1.704-1(b)(2)(ii)(d)(4), (5)
and (6).
"Adjusted Capital Account Deficit": With respect to any
Partner, the deficit balance, if any, in that Partner's Adjusted Capital
Account.
"Advisory Agreement": As defined in Section 5.7.
"Advisory Committee": As defined in Section 5.4.
"Affiliate": With respect to any Person, a Person which,
directly or indirectly, Controls, is Controlled by or is under common Control
with such Person.
"Aggregate Debt Limit": As defined in Section 3.6(a)(ii)(A).
"Agreement": This Amended and Restated Agreement of Limited
Partnership of the Partnership, together with all Schedules and Exhibits hereto,
dated as of the date hereof and as each may be amended from time to time.
"Appraiser": As defined in Section 5.9(b).
"Approved Agreements": The agreements listed on Schedule 2.7
and any agreement that the Partnership is obligated or permitted to enter into
pursuant to any such agreement.
"Approved Hines Entity": As defined in Section 5.11.
"Asset Management Fee": As defined in Section 7.2(a).
"Available Cash": As of any date, all cash held by the
Partnership less all such cash that the General Partner reasonably determines to
reserve to pay or satisfy Cash Needs.
"Business Day": Any day other than a Saturday or Sunday, that
is neither a legal holiday nor a day on which banking institutions in New York
City are authorized or required by law, regulation or executive order to close.
"Capital Account": As defined in Section 8.1.
"Capital Call Notice": As defined in Section 3.2.
"Capital Calls": As defined in Section 3.2.
"Capital Cash Flow": As defined in Section 9.2.
"Capital Commitment": As defined in Section 3.2.
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"Capital Contribution": With respect to any Partner, any
contribution to the capital of the Partnership by such Partner in accordance
with this Agreement.
"Cash Needs": Any cash needs or requirements of whatever kind
of the Partnership for which sufficient funds are not available from investment
income or from reserves held by the Partnership, including (i) funds required to
be contributed by the Partnership to any Fund Entity for the purpose of
acquiring Investments or paying costs and expenses related thereto, (ii)
Organizational Expenses and any other Partnership Expenses, and (iii) the cost
of redeeming Units in accordance with this Agreement.
"CBD": As defined in Section 5.2(b)(i).
"Certificate": As defined in Section 2.1.
"Class A Major Investor": An Investor with an aggregate
Capital Commitment of at least $300 million.
"Class B Major Investor" An Investor with an aggregate Capital
Commitment of at least $150 million, but less than $300 million.
"Class C Major Investor" An Investor with an aggregate Capital
Commitment of at least $75 million, but less than $150 million.
"Class D Major Investor" An Investor with an aggregate Capital
Commitment of at least $50 million, but less than $75 million.
"Code": The Internal Revenue Code of 1986, as amended as of
the date hereof and as the same may be amended from time to time, and any
successor statute.
"Committed Capital": (i) As to any Partner, the sum of (A)
Partnership's total equity capital multiplied by a fraction, the numerator of
which is the total number of Units held by such Partner and the denominator of
which is the total number of Units outstanding plus, prior to the termination of
the Investment Period, (B) the Unfunded Commitment of such Partner, (ii) as to
any Fund Investor, the Fund's total equity capital multiplied by the percentage
of the Fund's total equity capital attributed to the equity interests held by
such Fund Investor in the Partnership and any Operating Company plus the amount
of any additional capital that such Fund Investor is obligated to contribute,
but has not yet contributed, to the Partnership or any Operating Company, (iii)
as to the Partnership, the aggregate of the Committed Capital of all Partners
and (iv) as to the Fund, the aggregate of the Committed Capital of all Fund
Investors.
"Constituent Documents": With respect to any Entity, its
constituent, governing or organizational documents, including (a) in the case of
a limited partnership, its certificate of limited partnership and its limited
partnership agreement, (b) in the case of a limited liability company, its
articles or certificate of formation and its operating agreement or limited
liability company agreement, (c) in the case of a corporation, its articles or
certificate of incorporation and its bylaws and (d) in the case of a trust, its
declaration of trust and bylaws.
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"Control": With respect to any Person, the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of such Person, whether through the ownership of voting
securities, by contract or otherwise.
"Contributing Partner": As defined in Section 3.7.
"Current Market Value": As defined in Section 5.9(c).
"Current Unit Value": As defined in Section 5.9(c).
"Defaulting Limited Partner": As defined in Section 10.8(b).
"Default Rate": The rate of interest per annum equal to the
lesser of (i) the Prime Rate plus four percent and (ii) the highest rate
permitted by applicable law.
"Depreciation": 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.
"Dispose" (including with correlative meanings, "Disposed of",
"Disposition" and "Disposed"): With respect to any Partnership Interest, means
to Transfer, pledge, hypothecate or otherwise dispose of such Partnership
Interest, in whole or in part, voluntarily or involuntarily.
"Entity": Any corporation, partnership, limited partnership,
limited liability company, trust, association, joint stock company or other
legal entity.
"ERISA": The Employee Retirement Income Security Act of 1974,
as amended.
"Event of Withdrawal": As defined in Section 12.1(a).
"Fees": Asset Management Fees and Acquisition Fees.
"Feeder Entity": As defined in Section 2.10.
"Finding of Cause": As defined in Section 10.2(a).
"First Closing": As defined in Section 3.1.
"First Third Party Closing": The first closing of
subscriptions for Partnership Interests at which a Partnership Interest is
issued to a Person that is not an Affiliate of Hines.
"Fiscal Quarter": As defined in Section 2.8.
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"First Third Party Closing Date": The date of the First Third
Party Closing.
"Fiscal Year": As defined in Section 2.8.
"Fund": As defined in Section 5.1.
"Fund Entity": As defined in Section 5.1.
"Fund Investor": As defined in Section 5.1.
"Fund Vote": As defined in Section 11.6(g).
"Funded Commitment": As defined in Section 3.2.
"GAAP": Generally accepted accounting principles in the United
States, consistently applied.
"GECC": General Electric Capital Corporation, and its
successors.
"General Partner": Hines US Core Office Capital LLC, a
Delaware limited liability company, and its successors, and any Person hereafter
admitted as general partner of the Partnership in accordance with the terms of
this Agreement.
"General Partner Expenses": As defined in Section 7.1.
"Gross Asset Value": With respect to any Partnership asset,
the asset's adjusted basis for federal income tax purposes, except as follows:
(i) The initial Gross Asset Value of any asset
contributed by a Partner to the Partnership shall be the gross
fair market value of such asset, as determined by the General
Partner and agreed to by the Contributing Partner;
(ii) The Gross Asset Value of all Partnership
assets shall be adjusted to equal their respective gross fair
market values, as determined by the General Partner (which
determination shall be based upon, and consistent with, the
most recent Current Market Values), as of the following times:
(a) the acquisition of an additional interest in the
Partnership by any new or existing Partner in exchange for
more than a de minimis Capital Contribution; (b) the
distribution by the Partnership to a Partner of more than a de
minimis amount of Partnership property as consideration for an
interest in the Partnership; (c) the liquidation of the
Partnership within the meaning of Regulations Section
1.704-1(b)(2)(ii)(g); and (d) upon the occurrence of any other
event for which such an adjustment is permitted under the
Regulations; provided, however, that adjustments pursuant to
clauses (a), (b) and (d) above shall be made only if the
General Partner reasonably determines that such adjustments
are necessary or appropriate to reflect the relative economic
interests of the Partners in the Partnership;
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(iii) The Gross Asset Value of any Partnership
asset distributed to any Partner shall be adjusted to equal
the gross fair market value of such asset on the date of
distribution as determined by the General Partner (which
determination shall be based upon, and consistent with, the
most recent Current Market Values); and
(iv) The Gross Asset Value 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 and
Section 8.6(g); provided, however, that Gross Asset Value
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 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 for purposes of computing Profits and Losses.
"▇▇▇▇▇": ▇▇▇▇▇ Interests Limited Partnership, a Delaware
limited partnership, and its successors.
"Hines Advances": As defined in Section 3.1.
"Hines Capital Requirement": As defined in Section 3.11.
"Hines Controlled Entity": Any partnership, limited liability
company, corporation, trust or other entity which is, directly or indirectly,
Controlled by (a) Hines, and/or (b) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and/or ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ or,
in the event of the death or disability of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and/or ▇▇▇▇▇▇ ▇.
▇▇▇▇▇, the heirs, legal representatives or estates of either or both of them.
"Hines Investment Allocation Committee": As defined on
Schedule 4.4.
"Hines Limited Partner": Hines US Core Office Capital
Associates II Limited Partnership, a Texas limited partnership, and its
successors.
"HSOV": Hines Suburban Office Venture, LLC, an entity formed
by an Affiliate of Hines and an Affiliate of GECC for the purpose of acquiring
suburban office buildings on a national basis.
"Indebtedness": With respect to any Person, (i) any
indebtedness for borrowed money evidenced by a note payable by such Person, and
(ii) any obligation to pay money secured by any mortgage, pledge, security
interest, encumbrance, lien or charge of any kind existing on any asset owned or
held by such Person, whether or not such Person has assumed or
6
become personally liable for the obligations secured thereby; provided that
"Indebtedness" with respect to any Person shall not include obligations in
respect of any accounts payable that are incurred in the ordinary course of such
Person's business and are not delinquent or are being contested in good faith by
appropriate proceedings.
"Indemnified Person": As defined in Section 6.1.
"Initial Asset Group": The three office properties acquired
from Sumitomo by NY Trust at the First Closing and, from and after the date, if
any, as of which the Partnership acquires an indirect interest in Manhattan
Tower, Manhattan Tower.
"Initial Investment Period": As defined in Section 3.4.
"Initial Offering Period": As defined in Section 3.3(a).
"Initial Offering Price": $1000 per Unit.
"Investment Advisor": An Affiliate of Hines or SLR that
provides advisory services to the General Partner pursuant to an Advisory
Agreement as contemplated by Section 5.7.
"Investment Company Act": The Investment Company Act of 1940,
as amended as of the date hereof and as the same may be amended from time to
time, and any successor statute.
"Investment Guidelines": As defined in Section 5.2(b).
"Investments": As defined in Section 5.2(a).
"Investor": As defined in Section 3.2.
"Limited Partner": Any Person now or hereafter admitted as a
limited partner in accordance with the terms of this Agreement. The Limited
Partners as of the date hereof are the Persons identified as such on Schedule
2.1.
"Liquidating Event": As defined in Section 12.1.
"Liquidating Redemption": As defined in Section 3.8.
"LP Vote": As defined in Section 11.6(g).
"Major Investor": An Investor with a Capital Commitment of at
least $50 million.
"Majority Fund Vote": As defined in Section 11.7.
"Majority LP Vote": As defined in Section 11.6(g).
"Majority Partner Vote": As defined in Section 11.6(g).
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"Management Board": As defined in Section 5.3(a).
"Management Fee Base": As defined in Section 7.2(b).
"Management Team": As defined in Section 5.5.
"Managing General Partner": As defined in Section 5.11.
"Manhattan Tower": The office property having such name
located at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇.
"Moody's": ▇▇▇▇▇'▇ Investor Services, Inc.
"MT Trust": As defined in the Organization Agreement.
"Non-Managing General Partner": As defined in Section 5.11.
"NOP": National Office Partners Limited Partnership, a limited
partnership formed by the State of California Public Employees' Retirement
System and an Affiliate of Hines.
"Notice of Redemption": As defined in Section 3.8.
"NY Trust": Hines-Sumisei NY Core Office Trust, a Maryland
real estate investment trust, and its successors.
"NY Trust Mezzanine Loan": The Mezzanine Loan Agreement, dated
as of August 19, 2003, among Hines NY Office Properties LLC, as borrower, and
Bank of America, N.A. and Connecticut General Life Insurance Company, as
lenders.
"Operating Company": As defined in Section 5.1.
"Operating Cash Flow": As defined in Section 9.1.
"Organization Agreement": The Organization Agreement, dated as
of August 19, 2003, among General Motors Investment Management Corporation, a
New York corporation, First Plaza Group Trust, a New York trust, GMAM Core Plus
II-NYC-DC, LLC, a Delaware limited liability company, [--], ▇▇▇▇▇ Interests
Limited Partnership, a Delaware limited partnership, Hines US Core Office
Capital Associates III Limited Partnership, a Texas limited partnership,
Hines-Sumisei U.S. Core Office Fund, L.P., a Delaware limited partnership and
Hines-Sumisei NY Core Office Trust, a Maryland real estate investment trust.
"Organizational Expenses" As defined in Section 7.5.
"Original Agreement": As defined in the Recitals of this
Agreement.
"Owner": As defined in the Property Services Agreement.
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"Partner Nonrecourse Debt": As defined in Regulations Section
1.704-2(b)(4).
"Partner Nonrecourse Debt Minimum Gain": As defined in
Regulations Section 1.704-2(i).
"Partner Nonrecourse Deductions": As defined in Regulations
Section 1.704-2(i).
"Partner Vote": As defined in Section 11.6(g).
"Partners": Collectively, the General Partner and the Limited
Partners, or any additional or successor partners of the Partnership admitted to
the Partnership in accordance with the terms of this Agreement. References to a
Partner shall be to any one of the Partners.
"Partnership": As defined in the Preamble to this Agreement.
"Partnership Auditor": As defined in Section 11.2.
"Partnership Expenses": As defined in Section 7.4(a).
"Partnership Interest": 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 the Act.
"Partnership Minimum Gain": As defined in Regulations Sections
1.704-2(b)(2) and 1.704-2(d).
"Partnership Unit" or "Unit": A unit of Partnership Interest.
"Payment Date": As defined in Section 3.2.
"Person": An individual, corporation, partnership, limited
liability company, estate, trust, association, joint stock company or other
legal entity, or a group as that term is used for purposes of Section 13(d)(3)
of the Securities Exchange Act of 1934, as amended.
"President": As defined in Section 5.5.
"Prime Rate": The rate of interest per annum announced from
time to time by JPMorgan Chase Bank, or its successor, at its principal office
in New York City as its prime rate.
"Priority Redemption Right": As defined in Section 3.9.
"Priority Redemptions": As defined in Section 3.9.
"Private Placement PTP Exemption": The exemption from publicly
traded partnership status provided in Regulation Section 1.7704-1(h) (which
generally applies if (i) all interests in a partnership are issued in a
transaction or series of transactions that are not required
9
to be registered under the Securities Act and (ii) the partnership does not have
more than 100 partners at any time during taxable year of the partnership).
"Private Transfer": Any of the following:
(i) transfers in which the basis of the
Partnership Interest in the hands of the transferee is
determined, in whole or in part, by reference to its basis in
the hands of the transferor or is determined under Code
Section 732;
(ii) transfers at death, including transfers from
an estate or testamentary trust;
(iii) transfers between members of a family;
(iv) transfers involving the issuance of
interests by (or on behalf of) the Partnership in exchange for
cash, property, or services;
(v) transfers involving distributions from a
qualified retirement plan or an individual retirement account;
(vi) the transfer by a Partner and any related
persons (within the meaning of Code Section 267(b) or
707(b)(1)) in one or more transactions during any thirty
calendar day period of Partnership Interests representing in
the aggregate more than 2 percent of the total interests in
Partnership capital or profits;
(vii) transfers by one or more Partners of
interests representing in the aggregate 50 percent or more of
the total interests in Partnership capital and profits in one
transaction or a series of related transactions; and
(viii) transfers not recognized by the Partnership
within the meaning of Regulation Section 1.7704-1(d)(2) (i.e.,
the Partnership neither admits the transferee as a partner nor
recognizes any rights of the transferee as a partner).
"Profits" and "Losses": 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 by the General Partner in accordance with
Code Section 703(a) 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 Code
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;
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(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 I, 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)(4) to be taken into
account in determining Capital Accounts as a result of a
distribution other than in complete liquidation of a Partner's
Partnership Interest, or is required pursuant to the last
sentence of Regulations Section 1.704-1(b)(2)(iv)(m)(2) to be
taken into account in determining Capital Accounts 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 8.6 or Section 8.7 shall not be considered in
determining Profits or Losses.
"Property": As defined in Section 5.2(a).
"Property Manager": As defined in Section 5.8.
"Property Services Agreement": As defined in Section 5.8.
"Property Services Agreement Form": As defined in Section 5.8.
"Pro Rata Share": As among any specified group of Partners,
(i) prior to the termination of the Initial Investment Period, in proportion to
the Capital Commitments of such Limited Partners, and (ii) after the termination
of the Initial Investment Period, in proportion to the number of Units held by
such Limited Partners.
"Quarterly Payment Date": As defined in Section 7.2(a).
"Redeeming Partner": As defined in Section 3.8.
"Redemption Right": As defined in Section 3.8.
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"Regulations": 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).
"Regulatory Allocations": As defined in Section 8.7.
"REIT Election Effective Date": As defined in Section 2.11.
"Required Vote": As defined in Section 13.3(a).
"S&P": Standard & Poor's, a division of The ▇▇▇▇▇▇-▇▇▇▇
Companies, Inc.
"Securities Act": The Securities Act of 1933, as amended.
"Similar Law": Any federal, state, local, non-U.S. or other
law or regulation that contains one or more provisions that are similar to any
of the provisions contained in Title I of ERISA or Section 4975 of the Code.
"Single Asset Debt Limit": As defined in Section
3.6(a)(ii)(B).
"SLR": Sumitomo Life Realty (N.Y.), Inc., a New York
corporation.
"SLR Designee": As defined in Section 5.3(a).
"SLRI": SLR Investments, Inc., a Delaware corporation.
"Strategic Investors": As defined in Section 4.6.
"Subscription Agreement": As defined in Section 3.2.
"Subsequent Closing": As defined in Section 3.3(b).
"Sumitomo": SLR and SLRI, collectively.
"Super Majority Fund Vote": As defined in Section 11.7.
"Super Majority LP Vote": As defined in Section 11.6(g).
"Super Majority Partner Vote": As defined in Section 11.6(g).
"Tax Matters Partner": As defined in Section 11.4(a).
"Temporary Investment": Any repurchase agreements of primary
Federal Reserve dealers using treasury securities only; bankers acceptances
which are legal for purchase by the Federal Reserve Bank; United States Treasury
bills and agency discount notes; commercial paper that is rated by ▇▇▇▇▇'▇ or
S&P in its highest rating category; accounts or mutual funds which invest in any
of the foregoing; and any other investment approved by the Advisory Committee as
a Temporary Investment.
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"Term": As defined in Section 2.9.
"Transfer": As a noun, any sale, transfer, gift, exchange,
assignment, devise or other disposition, as well as any other event that causes
any Person to acquire beneficial ownership, or any agreement to take any such
actions or cause any such events, with respect to Partnership Units, or the
right to vote or receive distributions with respect to Partnership Units,
including (a) the granting or exercise of any option (or any disposition of any
option), (b) any disposition of any securities or rights convertible into or
exchangeable for Partnership Units or any interest in Partnership Units or any
exercise of any such conversion or exchange right and (c) Transfers of interests
in other entities that result in changes in beneficial ownership of Partnership
Units; in each case, whether voluntary or involuntary, whether owned of record
or beneficially owned, and whether by operation of law or otherwise. The terms
"Transferor," "Transferee," "Transferred" and "Transferring" have correlative
meanings.
"Unfunded Commitment": As defined in Section 3.2.
"Unrecovered Capital": As defined in Section 7.2(b).
"US Core Properties": Hines-Sumisei US Core Office Properties
LP, a Delaware limited partnership, and its successors.
"US Core Trust": Hines-Sumisei US Core Office Trust, a
Maryland real estate investment trust, and its successors.
"Withdrawn General Partner": As defined in Section 12.1.
"75% Majority Fund Vote": As defined in Section 11.7.
"75% Majority LP Vote": As defined in Section 11.6(g).
"75% Majority Partner Vote": As defined in Section 11.6(g).
SECTION 1.2 Interpretation; Terms Generally. The definitions
set forth in Section 1.1 and elsewhere in this Agreement shall apply equally to
both the singular and plural forms of the terms defined. Whenever the context
may require, any pronoun shall include the corresponding masculine, feminine and
neuter forms. Unless otherwise indicated, the words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation."
The words "herein", "hereof" and "hereunder" and words of similar import shall
be deemed to refer to this Agreement (including the Exhibits and Schedules) in
its entirety and not to any part hereof, unless the context shall otherwise
require. All references herein to Articles, Sections, Exhibits and Schedules
shall be deemed to refer to Articles and Sections of, and Exhibits and Schedules
to, this Agreement, unless the context shall otherwise require. Unless the
context shall otherwise require, any references to any agreement or other
instrument or statute or regulation are to it as amended and supplemented from
time to time (and, in the case of a statute or regulation, to any corresponding
provisions of successor statutes or regulations). Any reference in this
Agreement to a "day" or number of "days" (that does not refer explicitly to a
"Business Day" or "Business Days") shall be interpreted as a reference to a
calendar day or number of calendar days. If any action or notice is to be taken
or given on or by a particular
13
calendar day, and such calendar day is not a Business Day, then such action or
notice shall be deferred until, or may be taken or given on, the next Business
Day.
ARTICLE II
GENERAL PROVISIONS
SECTION 2.1 Formation and Continuation. The Partnership was
formed as a limited partnership under the Act by the filing of its certificate
of limited partnership (the "Certificate") with the Secretary of State of the
State of Delaware on August 8, 2003. The General Partner shall continue as the
general partner of the Partnership, and the Hines Limited Partner shall continue
as a limited partner of the Partnership.
SECTION 2.2 Name. The name of the Partnership shall be
"Hines-Sumisei US Core Office Fund LP." The General Partner shall, with the
affirmative written consent of SLR (which consent shall not be unreasonably
withheld) and upon notice to the other Partners, have the right to change the
name of the Partnership and, in connection therewith, may execute and file
(pursuant to the power-of-attorney provided for in Section 13.2, where
necessary) such amendments to this Agreement, the Certificate and such other
documentation, as shall be necessary or desirable to effect such name change.
The Partnership shall do business under the name of the Partnership or under
such other name (including any assumed name) as the General Partner may from
time to time determine in its sole discretion. Upon the dissolution and
termination of the Partnership, the General Partner shall retain all rights with
respect to the name of the Partnership and the use of such name.
SECTION 2.3 Organizational Certificates and Other Filings. If
requested by the General Partner, the Limited Partners will promptly execute all
certificates and other documents consistent with the terms of this Agreement
necessary for the General Partner to accomplish all filing, recording,
publishing and other acts as may be appropriate to comply with all requirements
for (a) the formation and operation of a limited partnership under the laws of
the State of Delaware, (b) if the General Partner deems it advisable, the
operation of the Partnership as a limited partnership, or partnership in which
the Limited Partners have limited liability, in all jurisdictions where the
Partnership proposes to operate and (c) all other filings required to be made by
the Partnership.
SECTION 2.4 Principal and Other Offices. The principal office
of the Partnership shall be c/o Hines Interests Limited Partnership, ▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, or such other place as may
from time to time be designated by the General Partner in its sole discretion.
The General Partner shall give prompt notice to each Partner of any change in
the principal office of the Partnership. The Partnership may also have such
other offices and places of business as the General Partner determines to be
appropriate.
SECTION 2.5 Registered Office; Registered Agent. The address
of the registered office of the Partnership in the State of Delaware shall be
c/o Corporation Trust Company, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ or
such other place as may be designated from time to time by the General Partner
in its sole discretion. The name and address of the registered
14
agent for the Partnership in the State of Delaware which shall act as its agent
for service of process in the State of Delaware shall be The Corporation Trust
Company, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or such other agent as
may be designated from time to time by the General Partner in its sole
discretion.
SECTION 2.6 Purpose. The purpose of the Partnership is to
acquire and hold an interest in NY Trust and any other Operating Company that
may hereafter be organized, to make capital contributions and loans to, and
otherwise provide for the financing of, such Operating Companies, to influence
or exercise control over the management and policies of such Operating Companies
through the ownership of voting securities, the power to appoint members to the
board of trustees or other governing body of such Operating Companies, by
contract or otherwise and to engage in such other activities as are permitted
under this Agreement or are incidental or ancillary thereto as the General
Partner deems necessary or advisable, all upon the terms and conditions set
forth in this Agreement.
SECTION 2.7 Powers.
(a) The Partnership shall have all the powers now or
hereafter conferred by the laws of the State of Delaware on limited
partnerships formed under the Act and, subject to the express
limitations set forth in this Agreement, may do any and all lawful acts
or things that are necessary, appropriate, incidental or convenient for
the furtherance and accomplishment of the purposes of the Partnership
or for the protection and benefit of the Partnership or its properties
and assets. Without limiting the generality of the foregoing, and
subject to the terms of this Agreement, the Partnership may enter into,
deliver and perform all contracts, agreements and other undertakings
and engage in all activities and transactions as may be necessary or
appropriate to carry out its purposes and conduct its business.
(b) Without limiting the foregoing, and notwithstanding
anything in this Agreement to the contrary, the Partnership, and the
General Partner on behalf of the Partnership, is authorized and
empowered to enter into, deliver and perform its obligations and
exercise its rights under the Organization Agreement (as defined on
Schedule 2.7) and each of the other agreements listed on Schedule 2.7
and, in connection therewith, acquire shares of beneficial interest in
NY Trust in accordance with the terms of the Organization Agreement.
SECTION 2.8 Fiscal Year. The fiscal year ("Fiscal Year") and
taxable year of the Partnership will be the calendar year, and its fiscal
quarters (each, a "Fiscal Quarter") shall end on the last day of each calendar
quarter. The General Partner may change the ending date of the Fiscal Year if
the General Partner determines in good faith that such change is necessary or
appropriate. The General Partner will change the taxable year of the Partnership
if and to the extent necessary to comply with Code Section 706 and the
Regulations thereunder. The General Partner will give prompt written notice of
any such change to the other Partners.
SECTION 2.9 Term. The term of the Partnership (the "Term")
commenced upon the filing of the Certificate and shall continue until the
Partnership is dissolved and its affairs are wound up in accordance with Article
XII.
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SECTION 2.10 Feeder Entities. In order to facilitate
investment in the Partnership by certain investors, the General Partner may
establish or facilitate the establishment of one or more collective investment
vehicles or other arrangements (each such vehicle or arrangement, a "Feeder
Entity") through which investors may invest in the Partnership by acquiring
interests in such Feeder Entity. Affiliates of the General Partner may hold
interests in any such Feeder Entity or in the general partner (or advisor or
similar entity) of such Feeder Entity. In case of a default by any such Feeder
Entity, the General Partner may treat one or more of such investors (rather than
such Feeder Entity) as a Defaulting Limited Partner as provided in Section 10.8.
In addition, the terms of the governance and/or organizational documents of any
such Feeder Entity may permit the payment to the general partner (or advisor or
similar entity) of such Feeder Entity of management, advisory or other fees, and
any such fees paid by such Feeder Entity to its general partner (or advisor or
other entity) may be used to reduce and offset the Asset Management Fee or
Acquisition Fees payable under this Agreement, in which event the General
Partner shall amend this Agreement so that the benefit of any such reduction
inures to such Feeder Entity.
SECTION 2.11 REIT Covenant. The Partnership shall not take any
action or engage in any activities (including exercising operating control over
Operating Companies) on and after the date that the elections of NY Trust or of
any other Operating Company under Section 856 of the Code to be taxed as a real
estate investment trust first becomes effective (the "REIT Election Effective
Date") if both (i) such actions or activities would cause the Partnership to be
treated as engaged in a U.S. trade or business for U.S. federal income tax
purposes, or as owning U.S. real property interests within the meaning of
Section 897 of the Code, at any time on and after the REIT Election Effective
Date, and (ii) the Partnership is so treated as engaged in a U.S. trade or
business or as owning U.S. real property interests other than because of the
application and/or operation of Section 897(h) of the Code or because of the
ownership of any interest in a real estate investment trust that is treated as a
U.S. real property corporation under Section 897(c)(2) of the Code.
ARTICLE III
PARTNERSHIP CAPITAL
SECTION 3.1 Initial Capital Contributions and Advances.
Concurrently with the execution and delivery of this Agreement (the "First
Closing"), the General Partner and the Hines Limited Partner are making Capital
Contributions and advancing loans (the "Hines Advances") to the Partnership in
the amounts set forth opposite their names on Schedule 3.1. The Partnership
shall contribute the proceeds of such Capital Contributions and Hines Advances
to NY Trust in exchange for shares of beneficial interest in NY Trust.
Immediately after the foregoing Capital Contributions, each Partner shall own
the number of Units set forth opposite such Partner's name on Schedule 3.1 and
shall have a Capital Account balance in the amount set forth opposite such
Partner's name on Schedule 3.1 under the heading "Agreed Capital Account."
SECTION 3.2 Capital Commitments. The Partnership may, in the
discretion of the General Partner, issue additional Partnership Units and admit
additional Limited Partners to the Partnership. Any Person that acquires a
Partnership Interest for cash (an "Investor") after the
16
First Closing will acquire such interest pursuant to an agreement (a
"Subscription Agreement") between such Investor and the Partnership pursuant to
which such Investor agrees to acquire, and the Partnership agrees to issue, a
specified number of Units in exchange for Capital Contributions in cash at a
specified price per Unit, all on such terms and conditions as are provided in
this Agreement and as may be provided in such Subscription Agreement. A
Subscription Agreement shall become effective as of the date it has been
executed and delivered by the Investor party thereto and accepted by the General
Partner on behalf of the Partnership. Units issuable pursuant to a Subscription
Agreement shall be issuable in installments, with each installment being
issuable, and the Capital Contribution therefor being payable, in accordance
with calls for capital ("Capital Calls") issued pursuant to written notice (the
"Capital Call Notice") to the Investor party to such Subscription Agreement. The
total purchase price payable by any Investor under a Subscription Agreement for
the Units issuable pursuant thereto is referred to as such Investor's "Capital
Commitment". Each Investor which acquires any Units pursuant to a Subscription
Agreement shall be deemed to be admitted to the Partnership as a Limited Partner
immediately upon the payment of the purchase price for the first Units so issued
to such Investor. The aggregate amount of Capital Contributions made by a
Partner pursuant to a Subscription Agreement is referred to herein as such
Partner's "Funded Commitment", and the portion of the Capital Commitment
provided for in any Subscription Agreement that remains unpaid after any closing
of a purchase and issuance of Units thereto shall be referred to as the
"Unfunded Commitment" of the Partner party to such Subscription Agreement. In no
event will any Partner be required to contribute any capital to the Partnership
in excess of such Partner's Capital Commitment, provided that (i) the General
Partner will be required to invest a portion of its fees in the Partnership (or
other Operating Company) as provided in Sections 7.2 and 7.3 and (ii) each
Limited Partner that is not an Affiliate of the General Partner shall be
obligated to pay Asset Management Fees to the General Partner in accordance with
Section 7.2, which fees shall be in addition to such Limited Partner's Capital
Commitment. If at any time the General Partner determines to raise capital by
issuing Capital Calls to Partners having Unfunded Commitments, it shall issue
such Capital Calls pro rata to each such Partner in proportion to the number of
Units issuable in respect of the Unfunded Commitment of each such Partner. Each
Capital Call Notice issued by the General Partner shall specify the account to
which Capital Contributions are to be delivered pursuant thereto and the date on
which such Capital Contributions are due ("Payment Date"), which date shall be
no sooner that ten Business Days after the date such Capital Call Notice is
issued. All Capital Contributions made on or before the Payment Date specified
in a Capital Call Notice shall be deemed to have been made on such Payment Date.
SECTION 3.3 Initial Offering Period.
(a) The period beginning on the First Third Party Closing
Date and ending on the 272nd day following such date is referred to
herein as the "Initial Offering Period". All Subscription Agreements
entered into after the First Closing and prior to the end of the
Initial Offering Period shall provide for the issuance of Units at the
Initial Offering Price; provided that any such Subscription Agreement
may, in the discretion of the General Partner, provide for the issuance
of Units at a price different from the Initial Offering Price in any
Subscription Agreement entered into after the date of this Agreement
if, in the reasonable determination of the General Partner in its sole
discretion, such different price is appropriate based on any
appreciation or depreciation of any Investments from the date of this
Agreement to the effective date of such
17
Subscription Agreement; provided that no Subscription Agreement entered
into during the Initial Offering Period shall provide for the issuance
of Units at a price per Unit less than the Initial Offering Price
without the consent of the Partners holding Units immediately prior to
the effective date of such Subscription Agreement by a Majority Partner
Vote.
(b) Upon the closing of the issuance of Units pursuant to
any Subscription Agreement that becomes effective (pursuant to Section
3.2 hereof) after the First Closing and prior to the end of the Initial
Offering Period, the Investor subscribing for Units pursuant thereto
shall be required to make a Capital Contribution in an amount equal to
the lesser of (i) its pro rata share, based on its Capital Commitment,
of the amount of all Capital Contributions required by the General
Partner to be made at such closing, and (ii) its Capital Commitment.
If, following a closing of the issuance of Units pursuant to the
preceding sentence (any such closing, a "Subsequent Closing"), all
Priority Redemptions have been made and there remain any Unfunded
Commitments, then each Limited Partner that was admitted or increased
its Capital Commitment at such Subsequent Closing shall be required to
make a Capital Contribution (and shall be issued Units in respect
thereof) in an amount (rounded up to the nearest whole Unit) equal to
its pro rata share (based on the Capital Commitments of all Partners
immediately after such Subsequent Closing) of the Funded Commitments of
all Partners immediately prior to such Subsequent Closing. The General
Partner shall use the proceeds of any such Capital Contributions to
redeem Units held by Partners immediately prior to such Subsequent
Closing at the same price per Unit at which such Units were acquired,
such that, after making such Capital Contributions and redemptions,
each Partner's Funded Commitment relative to its Capital Commitment is
the same as the Funded Commitment of each other Partner relative to its
Capital Commitment. The Funded Commitment of any Partner having Units
redeemed pursuant to the preceding sentence shall be reduced by the
amount received by such Partner for the Units redeemed, such Partner's
Unfunded Commitment shall be increased by such amount, and such Partner
shall remain obligated to purchase additional Units at the price per
share provided for in its Subscription Agreement to the full extent of
its Unfunded Commitment as so increased.
SECTION 3.4 Initial Investment Period. The period beginning on
the First Third Party Closing Date and ending on the third anniversary of such
date is referred to herein as the "Initial Investment Period"; provided that the
General Partner may extend the Initial Investment Period to end on the latest
closing date of any Investment with respect to which the Partnership, or the
General Partner on behalf of the Partnership, entered into a binding agreement
on or prior to the last day of such initial three year period; provided further
that the Initial Investment Period shall in no event be extended beyond the
fourth anniversary of the date of the First Third Party Closing Date. Upon the
termination of the Initial Investment Period, as it may be extended pursuant to
the preceding sentence, any remaining Unfunded Commitments attributable to
Subscription Agreements entered into during the Initial Offering Period shall be
canceled automatically and without any further action by any party, and the
General Partner shall have no further right to issue Capital Calls, and
Investors shall have no further right to purchase Units in respect of such
canceled Unfunded Commitments pursuant to any such Subscription Agreement;
provided that the foregoing shall not affect (i) the right of the General
Partner or the Partnership to pursue any remedies available to it under this
Agreement or at law in respect of any default in
18
respect of a Capital Call issued prior to the termination of the Initial
Investment Period, or (ii) the obligation of any Partner with respect to a
Capital Commitment attributable to a Subscription Agreement entered into after
the Initial Offering Period.
SECTION 3.5 Additional Capital. Except as specifically
provided in this Agreement or any Subscription Agreement, no Partner (including
the General Partner) shall be required to, and no Limited Partner shall have the
right to, contribute additional funds or other property to the Partnership. The
Partnership may from time to time incur Indebtedness in accordance with Section
3.6 and issue additional Units in accordance with Section 3.7. The General
Partner or the ▇▇▇▇▇ Limited Partner may, but shall not be obligated to, make
additional advances to the Partnership in such amounts as may be necessary to
enable the Partnership to fund any contributions of capital required or
permitted to be made by the Partnership to the NY Trust or the MT Trust under
the terms of the Organization Agreement , and any such advances shall be deemed
to be ▇▇▇▇▇ Advances.
SECTION 3.6 Fund Indebtedness.
(a) The General Partner shall have the right, at its
option, to cause any Fund Entity other than the Partnership to incur or
assume Indebtedness from any Person to finance Investments made,
directly or indirectly, and to pledge or otherwise encumber assets of
any such Fund Entity to secure any such Indebtedness, subject to the
following:
(i) Following repayment of the NY Trust
Mezzanine Loan, and the re-payment of the ▇▇▇▇▇ Advances in
accordance with Section 3.10, the Partnership shall not
consent to NY Trust and its subsidiaries incurring any
Indebtedness in excess of 55% of the Current Market Value of
the Investments held by NY Trust at the time any such
Indebtedness is incurred, and, if and when the Partnership
organizes MT Trust to acquire Manhattan Tower, the Partnership
will not consent to MT Trust and its subsidiaries incurring
any Indebtedness in excess of 55% of the Current Market Value
of Manhattan Tower at the time any such Indebtedness is
incurred.
(ii) The Fund shall not incur any Indebtedness
other than the Indebtedness permitted under clause (i) of this
Section 3.6(a) unless, after giving effect to such incurrence,
(A) the aggregate amount of such other
Indebtedness is not more than 50% of the Current
Market Value of all Investments other than the
Initial Asset Group at the time any such other
Indebtedness is incurred (the "Aggregate Debt
Limit"); and
(B) the total amount of Indebtedness that is
secured by any one Investment other than one of the
Initial Asset Group shall not exceed 65% of the
Current Market Value of such Investment at the time
such Indebtedness is incurred (the "Single Asset Debt
Limit").
(iii) Notwithstanding clause (ii)(A) of this
Section 3.6(a), the General Partner may cause the Partnership
to consent to any Fund Entity other than the
19
Partnership, NY Trust or MT Trust incurring Indebtedness in
excess of the Aggregate Debt Limit, if the General Partner
determines that it is advisable to do so in connection with
the acquisition by any Operating Company of a new Investment;
provided that, at the time such excess Indebtedness is
incurred, the General Partner makes a reasonable determination
that Fund Indebtedness will be within the Aggregate Debt Limit
within one year after the incurrence of such excess
Indebtedness.
(b) In connection with incurrence of Indebtedness by any
Fund Entity, the General Partner shall have the right, in its
discretion, to pledge to the lender the right of the General Partner to
issue Capital Calls in respect of the Unfunded Commitments of the
Partners, and to enforce the obligations of the Limited Partners to
make Capital Contributions in respect thereof, in accordance with the
terms and conditions of this Agreement and the Subscription Agreements.
Each Limited Partner shall, upon the written request of the General
Partner, for the benefit of one or more lenders or other Persons
extending credit to the Partnership, (A) acknowledge its obligations
pursuant to this Agreement to make Capital Contributions (which may, as
determined by the General Partner, include an acknowledgment that the
General Partner, or the lender on behalf of the General Partner (in
accordance with the agreements between such lender and the Partnership
and/or the General Partner), may call such Capital Contributions in
accordance with this Agreement to pay the outstanding obligations to
such lenders without, except as expressly set forth in this Agreement,
defense, counterclaim or offset of any kind); provided that the
liability of the Limited Partners to make Capital Contributions shall
not be increased thereby and shall not result in the loss of a Limited
Partner's limited liability status under this Agreement, and (B)
execute such documents as may be reasonably required to create a
security interest in such Limited Partner's obligations to make such
Capital Contributions, which the General Partner may perfect and assign
for the benefit of a lender as determined by the General Partner in its
sole discretion. For purposes of determining whether Fund Indebtedness
is within the Aggregate Debt Limit, Indebtedness secured by a pledge of
the General Partner's right to make Capital Calls in respect of the
Partners' Unfunded Commitments shall not be treated as outstanding
Indebtedness; provided that no assets of the Partnership are pledged to
secure such Indebtedness other than the right of the General Partner to
issue Capital Calls in respect of the Unfunded Commitments of the
Partners and to enforce the obligations of the Limited Partners to make
Capital Contributions in respect thereof.
SECTION 3.7 Issuance of Units. The Partnership shall issue
Units, as determined by the General Partner, in its discretion, to existing or
newly-admitted Partners, (i) in exchange for the making by such a Partner (a
"Contributing Partner") of a Capital Contribution to the Partnership in cash, or
(ii) in connection with the acquisition, directly or indirectly, of an
Investment from such Partner or an Affiliate of such Partner by one or more
Operating Companies; provided, that no Units may be issued pursuant to this
Section 3.7 at a price per Unit that is less than the Current Unit Value as of
the date on which the Partnership enters into a binding agreement to issue such
Units.
SECTION 3.8 Redemption Rights. Subject to and in accordance
with the provisions of this Section 3.8, each Partner shall have the right (a
"Redemption Right") to
20
request that the Partnership redeem for cash at the Current Unit Value all or a
portion of the Units held by such Partner by delivering a notice (a "Notice of
Redemption") to the Partnership and the General Partner specifying the number of
Units held by such Partner (a "Redeeming Partner") that it requests to be
redeemed at any time within the last 45 days of any calendar year ending after
the later of (i) the last day of the Initial Investment Period and (ii) the
first anniversary of the date such Partner acquired the Units it seeks to
redeem. If, and beginning with the first day of the first taxable year in which,
the Partnership no longer qualifies for the Private Placement PTP Exemption, the
Redemption Right shall comply with the requirements of Regulations Section
1.7704-1(f) and shall be construed and administered in accordance therewith. The
General Partner may modify the Redemption Right from time to time in its
discretion to ensure that the terms of the Redemption Right comply and continue
to comply with such requirements. If a Partner requests a redemption pursuant to
the first sentence of this Section 3.8 (a "Liquidating Redemption"), the General
Partner shall use its reasonable best efforts to redeem the number of Units
specified in the Notice of Redemption for cash at the Current Unit Value on or
before the last day of the calendar year following the year in which such Notice
of Redemption was delivered, subject to the following:
(a) In no event shall the Partnership be required to
redeem for cash in any calendar year, in the aggregate, more than 10%
of the total number of Units outstanding as of the first day of such
calendar year. If, for any calendar year, Partners request Liquidating
Redemptions with respect to a number of Units which exceeds 10% of the
total number of Units outstanding as of the first day of such calendar
year, then each such Partner shall be entitled to redeem its pro rata
share of the total number of Units requested to be redeemed in such
calendar year based on the number of Units requested to be redeemed in
each such Partner's Notice of Redemption.
(b) If more than one Partner submits a request for a
Liquidating Redemption in a calendar year, then funds available to
effect such redemptions shall be applied pro rata to the redemption of
the Units subject to each such Partner's Notice of Redemption.
(c) In no event will any Units be redeemed pursuant to a
Liquidating Redemption to the extent that (i) the General Partner
determines in good faith that such redemption would be inconsistent
with the best interests of the Partnership, or (ii) the Partnership is
unable to raise or acquire sufficient funds to make such Liquidating
Redemption on terms acceptable to the Partnership, as determined by the
General Partner in good faith.
(d) If, and beginning with the first day of the first
taxable year in which, the Partnership no longer qualifies for the
Private Placement PTP Exemption:
(i) A Partner shall be entitled to exercise the
Redemption Right only if (x) the redemption or purchase of the
Partner's Units would constitute a Private Transfer or (y) the
number of Units to be redeemed, when aggregated with other
Transfers of Units within the same taxable year of the
Partnership (but not including Private Transfers), would
constitute ten percent (10%) or less of the total Units
outstanding.
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(ii) The General Partner may establish such
policies and procedures as it may deem necessary or desirable
in its discretion, including imposing limitations on the
number of Units with respect to which the Redemption Right may
be exercised during any period of time shorter than a calendar
year and establishing procedures to allocate the ability to
exercise the Redemption Right among the Partners.
(iii) The restrictions set forth in subparagraphs
(i) and (ii) of this Section 3.8(d) shall continue in effect
until such time as the Partnership is no longer potentially
subject to classification as a publicly traded partnership, as
defined in Code Section 7704, in the absence of such
restrictions, as determined by the General Partner in its
discretion. The restrictions set forth in such clauses (i) and
(ii), together with the restrictions on the Transfer of
Partnership Interests set forth in Section 10.5(b)(ii), are
intended to limit transfers of interests in the Partnership in
such a manner as to permit the Partnership to qualify for the
safe harbors from treatment as a publicly traded partnership
set forth in Treasury Regulations Sections 1.7704-1(d), (e),
(f) and (j) and shall be construed and administered in
accordance therewith. The General Partner may modify the
restrictions set forth in such clauses (i) and (ii), and the
provisions of Section 10.5(c), from time to time in its
discretion to ensure that the Partnership complies and
continues to comply with the requirements of the Code and
Regulations described above.
(e) Each Notice of Redemption requesting a Liquidating
Redemption will expire and be of no further force or effect as of the
last day of the calendar year following the year in which such Notice
of Redemption was delivered. A Partner will be entitled to participate
in Liquidating Redemptions in any given calendar year only to the
extent of the Units subject to a Notice of Redemption requesting a
Liquidating Redemption within the last forty-five days of the preceding
calendar year.
(f) A Limited Partner shall not be entitled to exercise a
Redemption Right if it prejudices or affects the continuity of the
Partnership for purposes of Code Section 708. Prior to any such
redemption, the General Partner may require an opinion of counsel,
which counsel and opinion shall be satisfactory to the General Partner,
to the effect that such redemption will not cause adverse tax
consequences to the non-redeeming Partners, and such Limited Partner
exercising the Redemption Right shall be responsible for paying said
counsel's fee for such opinion.
SECTION 3.9 Priority Redemption Rights. In connection with the
issuance of Units to a Contributing Partner in connection with the acquisition,
directly or indirectly, of property from such Contributing Partner or an
Affiliate thereof by an Operating Company, the Partnership may agree, subject to
the terms of any outstanding Priority Redemption Rights, in the sole discretion
of the General Partner, as part of the terms and conditions for such issuance,
to grant such Contributing Partner a right to redeem all or a portion of the
Units held by such Limited Partner at a redemption price equal to the Current
Unit Value in respect of some or all of the Units issued to such Contributing
Partner in such issuance (any such preferential or modified redemption right, a
"Priority Redemption Right"). The General Partner shall apply any Capital
22
Cash Flow and any funds received from Capital Contributions of Partners that
would otherwise be available for making distributions to the Partners or
redeeming Units pursuant to Redemption Rights generally to the making of any
redemptions required to be made pursuant to any existing Priority Redemption
Rights. Redemptions made or required to be made pursuant to the exercise of
Priority Redemption Rights are referred to herein as "Priority Redemptions".
SECTION 3.10 Repayment of ▇▇▇▇▇ Advances.
(a) Notwithstanding any other provision of this
Agreement, following the repayment of the NY Trust Mezzanine Loan and
the redemption or acquisition of all of SLR's equity interest in NY
Trust, the proceeds of all Capital Contributions made to the
Partnership from and after the date hereof shall be applied to the
repayment of the ▇▇▇▇▇ Advances.
(b) The General Partner shall require all Limited
Partners whose Unfunded Commitments are greater than zero to make
Capital Contributions in accordance with Section 3.2 up to the full
amount of such Unfunded Commitments to the extent necessary to repay
the ▇▇▇▇▇ Advances.
(c) Notwithstanding the foregoing, each of the ▇▇▇▇▇
Limited Partner and the General Partner may, in its sole and absolute
discretion, (i) waive or defer, in whole or in part, the repayment of
the ▇▇▇▇▇ Advances or (ii) contribute its right to repayment of such
▇▇▇▇▇ Advances, in whole or in part, to the Partnership in exchange for
additional Partnership Units at the Initial Offering Price.
SECTION 3.11 ▇▇▇▇▇ Investment. Following the repayment of the
NY Trust Mezzanine Loan in full, the redemption or acquisition of SLR's equity
interest in NY Trust and the repayment of the ▇▇▇▇▇ Advances, the General
Partner, the ▇▇▇▇▇ Limited Partner and/or such other Affiliates of ▇▇▇▇▇ as the
General Partner may determine from time to time, shall maintain Committed
Capital to the Fund in an aggregate amount of not less than the lesser of (i) 1%
of the Committed Capital of all Fund Investors, or (ii) $25 million (the "▇▇▇▇▇
Capital Requirement"). In connection with any increase of Committed Capital of
the Fund, whether through the acceptance of new or increased Capital
Commitments, the issuance of additional Partnership Units by the Partnership,
the issuance of additional equity securities by any Operating Company or
otherwise, the General Partner shall, or shall cause an Affiliate of the General
Partner to, increase its Capital Commitment or acquire additional Partnership
Units or equity securities of one or more Operating Companies at the Current
Unit Value to the extent necessary to comply with the ▇▇▇▇▇ Capital Requirement.
In order to manage the equity interests in the Fund held by the General Partner
and its Affiliates for purposes of complying with the ▇▇▇▇▇ Capital Requirement,
(A) the General Partner, the ▇▇▇▇▇ Limited Partner or any other Affiliate of
▇▇▇▇▇ may, at any time, at the discretion of the General Partner, (A) contribute
interests such Person holds in any Operating Company in which the Partnership
has an interest to the Partnership in exchange for Partnership Units at Current
Unit Value; and (B) the General Partner may, at any time, in its discretion,
cause the Partnership to exchange, at Current Unit Value, interests in any
Operating Company held by the Partnership for interests in another Operating
Company in which the Partnership holds an interest, or for Partnership Units,
held by the General Partner, the ▇▇▇▇▇ Limited Partner or any other Affiliate of
▇▇▇▇▇; provided that, in
23
any such case, such exchange does not result in the recognition of material
amounts of taxable income or gain by the Partnership or any Fund Entity. Neither
the General Partner nor any other Affiliate of ▇▇▇▇▇ shall be in breach of this
Agreement if at any time the ▇▇▇▇▇ Capital Requirement is not met as a result of
dilution following the issuance of Partnership Units or interests in any Fund
Entity so long as the General Partner takes, or causes any Affiliate to take,
such action as is necessary to cause the ▇▇▇▇▇ Capital Requirement to be met as
promptly as practicable following any such issuance.
ARTICLE IV
GENERAL PARTNER
SECTION 4.1 General Partner. Subject to the express
limitations set forth in this Agreement, all rights and powers to manage and
control the business and affairs of the Partnership shall be vested exclusively
in the General Partner, which shall have full authority to exercise in its
discretion, on behalf of and in the name of the Partnership, all rights and
powers of the sole general partner of a limited partnership formed under the
Act. The General Partner shall have the power to delegate all or any part of its
rights and powers to manage and control the business and affairs of the
Partnership to such officers, employees, Affiliates, agents and representatives
of the General Partner or the Partnership as it may from time to time deem
appropriate. Any authority delegated by the General Partner to any other Person
shall be subject to the limitations on the rights and powers of the General
Partner specifically set forth in this Agreement.
SECTION 4.2 Powers of the General Partner.
(a) Subject to the express limitations set forth in this
Agreement, the power to direct the management, operation and policies
of the Partnership shall be vested exclusively in the General Partner,
which shall have the power by itself and shall be authorized and
empowered on behalf and in the name of the Partnership to carry out any
and all of the objects and purposes of the Partnership and to perform
all acts and enter into and perform all contracts and other
undertakings that it may in its sole discretion deem necessary or
advisable or incidental thereto, all in accordance with and subject to
the other terms of this Agreement.
(b) Without limiting the foregoing general powers and
duties, the General Partner is hereby authorized and empowered on
behalf and in the name of the Partnership, or on its own behalf and in
its own name, or through agents as may be appropriate, subject to the
limitations contained elsewhere in this Agreement, to:
(i) make all decisions concerning the
Partnership's interest in any Operating Company, including
with respect to the voting of securities of such Operating
Company, the appointment, removal and replacement of trustees,
managers or directors of such Operating Company and the
exercise of any rights and compliance with any obligations of
the Partnership under any agreements with such Operating
Company or to which such Operating Company is subject or with
any Person having an interest in such Operating Company.
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(ii) make all decisions concerning, and enter
into Advisory Agreements with Investment Advisors under which
such Investment Advisors provide advice and recommendations to
the General Partner or the Partnership with respect to, the
financing or operation of the Partnership, and the
structuring, organization, formation, capitalization or
financing of any Operating Company;
(iii) direct the formulation of investment
policies and strategies for the Partnership and any Operating
Company, and select and approve the investment of Partnership
funds in any Operating Company, all in accordance with the
Investment Guidelines and the other limitations of this
Agreement;
(iv) sell, exchange, or otherwise dispose of all
or any portion of the Partnership's interest in any Operating
Company and, in connection therewith, accept, collect, hold,
sell, exchange, or otherwise dispose of evidences of
Indebtedness or other property received pursuant thereto;
(v) open, maintain and close bank accounts and
draw checks or other orders for the payment of money and open,
maintain and close brokerage, money market fund and similar
accounts;
(vi) hire for usual and customary payments and
expenses consultants, investment bankers, brokers, appraisers,
attorneys, accountants and such other agents for the
Partnership as it may deem necessary or advisable, and
authorize any such agent to act for and on behalf of the
Partnership;
(vii) enter into, execute, maintain and/or
terminate contracts, undertakings, agreements and any and all
other documents and instruments in the name of the
Partnership, and do or perform all such things as may be
necessary or advisable in furtherance of the Partnership's
powers, objects or purposes or to the conduct of the
Partnership's activities, including entering into agreements
to acquire or dispose of interests in Operating Companies
which may include such representations, warranties, covenants,
indemnities and guaranties as the General Partner deems
necessary or advisable;
(viii) incur Indebtedness and provide indemnities
in connection therewith, on a recourse (only with respect to
the assets of the Partnership or any Fund Entity) or
non-recourse basis, on behalf of any Fund Entity other than
the Partnership and, in its discretion, secure any and all of
such Indebtedness with the assets of any Fund Entity,
including the Unfunded Commitments of the Partners, and to
assign the Partnership's and the General Partner's rights to
issue Capital Calls and to deliver Capital Call Notices to the
Partners, to receive Capital Contributions from Partners and
to enforce such rights under the terms of this Agreement and
any Subscription Agreement;
(ix) act as the "tax matters partner" under the
Code and in any similar capacity under state, local or foreign
law;
25
(x) make, in its sole discretion, any and all
elections for U.S. federal, state, local and foreign tax
matters, including any election to adjust the basis of
Partnership property pursuant to Sections 734(b), 743(b) and
754 of the Code or comparable provisions of state, local or
foreign law;
(xi) delegate any powers or responsibilities of
the General Partner under this Agreement as they relate to any
Operating Company to the trustees, directors, or managers, as
applicable, of such Operating Company.
(c) Notwithstanding subsections (a) and (b) of this
Section 4.2, neither the General Partner nor the Non-Managing General
Partner, if applicable, shall take any action in the name or on behalf
of the Partnership which under the terms of this Agreement requires the
approval or consent of the Management Board, the Advisory Committee,
Partners other than the General Partner or Fund Investors, unless the
approval or consent required by this Agreement has been obtained.
SECTION 4.3 Time Commitment.
(a) The General Partner shall, and shall cause its
Affiliates and their respective employees, officers and agents to,
devote to the Partnership, Operating Companies and Investments such
time as shall be necessary to conduct the business and affairs of the
Partnership, Operating Companies and Investments in an appropriate
manner consistent with the terms of this Agreement and the Constituent
Documents of each Operating Company. The Partners acknowledge that the
General Partner and other Affiliates of ▇▇▇▇▇ and their respective
employees, officers and agents may also engage in activities unrelated
to the Fund and may provide services to Persons other than the
Partnership, the Operating Companies or any of their Affiliates.
(b) The General Partner shall cause the Management Team
to devote such time as the General Partner reasonably determines is
necessary to manage and operate the business affairs of Fund in an
appropriate manner consistent with the terms of this Agreement;
provided that the President and Senior Investment Manager shall devote
the substantial majority of their business time and attention to the
Fund.
SECTION 4.4 Outside Investments. So long as the Fund has the
capacity to make new Investments, neither the General Partner nor any other
Affiliate of ▇▇▇▇▇ will make any equity investment which satisfies the
Investment Guidelines (other than through an interest in the Fund); provided
that such restriction shall not apply to the following:
(a) any investment which the General Partner has decided
not to make or pursue based on a good faith determination that such
investment is inappropriate or inadvisable for the Fund, whether due to
capacity, diversification, rate of return objectives or other
considerations; provided that to the extent the General Partner
determines in good faith that it is desirable for the Fund to make some
but not all of a particular investment, then the Fund may make such
investment to such extent and the General Partner or another Affiliate
of ▇▇▇▇▇ (alone or with other Strategic Investors)
26
may co- invest with the Fund in such investment on a side-by-side basis
on terms no more favorable than those applicable to the Fund's share of
the investment;
(b) any investment by the ▇▇▇▇▇ U.S. Office Value Added
Fund, or any other fund or investment program affiliated with ▇▇▇▇▇
which has investment policies and objectives which differ substantially
from those of the Fund and which, in the good faith judgment of the
General Partner, does not compete in any material way for investments
that would be suitable for the Fund;
(c) any investment in an office building more than 75%
leased to a single tenant under a lease having at least two years
remaining on its term (excluding extension options);
(d) any non-brokered suburban office asset with a
purchase price of $65 million or less that was originated by GECC for
HSOV;
(e) passive investments (i.e., investments which do not
involve active participation in management by any Affiliate of ▇▇▇▇▇);
and
(f) any investment made by NOP or HSOV pursuant to an
investment opportunity allocated to NOP or HSOV in accordance with the
▇▇▇▇▇ investment allocation procedure described in Schedule 4.4.
SECTION 4.5 Transactions with Affiliates. Except for
transactions the terms of which are expressly contemplated or approved by this
Agreement or any Approved Agreement, neither the General Partner nor any other
Affiliate of ▇▇▇▇▇ shall engage in any material transaction with the Partnership
or any Fund Entity unless the terms of the transaction are on terms which are no
less favorable to the Partnership or such Fund Entity than would be obtained in
a transaction with an unaffiliated party; provided that the terms of any
transaction approved by the Advisory Committee shall be conclusively deemed to
be made on such a basis. The General Partner shall disclose to the Advisory
Committee the terms of all such material transactions between the General
Partner or any of its Affiliates on the one hand and the Partnership or any Fund
Entity on the other.
SECTION 4.6 Strategic Investors. The General Partner may
consent, on behalf of the Partnership, to an Operating Company permitting one or
more strategic investors, including Affiliates of the General Partner
("Strategic Investors") investing in Properties in which the Fund invests if the
General Partner determines that such investment would be beneficial to the Fund;
for example, in diversifying the investments made or to be made by the Fund, in
successful operation of the Property, or in disposing of the Property or
otherwise adding value to the Property. If such Strategic Investor is a Partner
or Fund Investor, any such co-investment may be made through an investment
vehicle in which such Strategic Investor has an interest separate from its
interest in the Fund, and if the General Partner and/or its Affiliates are the
Strategic Investor, such co-investment shall have economic terms that are
materially no more favorable to the General Partner and/or its Affiliates, as
applicable, than the terms of this Agreement or the terms contemplated by any
Approved Agreement.
27
SECTION 4.7 Other Activities not Restricted. Except as
provided in Section 4.2(c), Sections 4.3 through 4.6 and Article V, this
Agreement shall not be construed in any manner that precludes the General
Partner or any other Affiliate of ▇▇▇▇▇, or any of their respective officers,
employees or agents from engaging in any activity whatsoever permitted by
applicable law.
SECTION 4.8 General Partner as Limited Partner. The General
Partner may also be a Limited Partner to the extent that it purchases or becomes
a transferee of all or any part of the Partnership Interest of a Limited
Partner, and to such extent shall be treated as a Limited Partner in all
respects.
ARTICLE V
PARTNERSHIP MANAGEMENT
SECTION 5.1 Fund Structure.
(a) The Partnership will invest in real estate properties
in the United States indirectly through Operating Companies in which
the Partnership holds or hereafter acquires a direct or indirect
interest. The term "Operating Company" means an Entity in which the
Partnership holds a direct or indirect equity interest and which may
issue equity interests to one or more Persons which are not Affiliates
of the Partnership. The Partnership may from time to time organize such
Operating Companies as the General Partner deems necessary or advisable
to accomplish the objectives of the Partnership, so long as the
Constituent Documents of any such Operating Company, together with any
other agreements entered into in connection with the organization of
such Operating Company, provide the Partnership, the General Partner or
another ▇▇▇▇▇ Controlled Entity, directly or indirectly, with Control
of such Operating Company. The Partnership, each Operating Company and
any Entity in which an Operating Company holds a direct or indirect
interest is sometimes referred to in this Agreement as a "Fund Entity".
The Partnership and all other Fund Entities collectively are sometimes
referred to herein as the "Fund". Each Partner, and each Person that
acquires or subscribes for an equity interest in any Operating Company
or other Fund Entity or which makes an equity investment in any
Property in which any Operating Company invests, and which is
designated as such by the General Partner shall be deemed a "Fund
Investor". The General Partner shall promptly notify each Partner of
the identity and notice address of any Person designated a Fund
Investor. Set forth on Schedule 5.1A is a list of each Person other
than the Partners that is a Fund Investor as of the date of this
Agreement.
(b) As of the date of this Agreement, the Fund consists
of the Partnership, NY Trust and subsidiaries of NY Trust. It is the
present intention of the General Partner to (i) cause the Partnership
to acquire an interest in US Core Trust, and to cause US Core Trust to
acquire an interest in US Core Properties in connection with the First
Third Party Closing, and (ii) cause the Partnership to organize the MT
Trust and acquire an interest therein as contemplated by Article IV of
the Organization Agreement. In such event, the organizational structure
of the Fund will be as set forth on Schedule 5.1B.
28
SECTION 5.2 Investment Guidelines.
(a) Each Operating Company will invest, indirectly
through one or more Fund Entities, in real estate properties in the
United States in accordance with the Investment Guidelines. Any real
estate property in which the Fund invests is referred to herein as a
"Property". An Operating Company's interests in Properties and in any
intermediate Entity through which such Operating Company invests in a
Property are referred to generally as "Investments." The Partnership
will maintain in Temporary Investments or cash any funds of the
Partnership that are not invested in Operating Companies, distributed
to the Partners or applied toward the expenses of the Partnership.
(b) The investment objective of the Partnership is to (A)
achieve an average cash return to Limited Partners of 7% to 8% on their
capital invested in respect of Units and (B) generate an internal rate
of return to Limited Partners of 10% to 12% on their capital invested
in respect of Units, net of Partnership expenses, over an assumed ten
year holding period, by investing in and funding Operating Properties
which adhere to the following guidelines (the "Investment Guidelines").
(i) Each Operating Company will invest in
existing office properties that the General Partner believes
are desirable long term "core" holdings. Each Operating
Company will target high quality properties in attractive
Central Business District ("CBD") and suburban locations, with
the expectation that approximately 70% of the Partnership's
Committed Capital will be invested in CBD Properties.
(ii) An Operating Company may invest in mixed-use
Properties (i.e., some part of value and/or operating income
is attributable to non-office components), so long as at least
70% of the projected net operating income of any such Property
is attributable to office components.
(iii) An Operating Company will not invest in raw
land, except where such investment is incidental to an
investment in an existing developed office property or made as
part of an investment in a portfolio of existing office
properties; provided that, in any case, subject to clause (v)
below, an Operating Company shall not make an investment in
raw land if such investment would cause the value of the
Fund's total investment in raw land to exceed 2% of the total
value of all Investments of the Fund at the time the Operating
Company makes such investment.
(iv) Subject to clause (v) below, an Operating
Company will not invest in any property or asset that has a
material hotel or lodging component.
(v) Notwithstanding clauses (iii) and (iv) of
this Section 5.2(b), an Operating Company may make an
investment in raw land or hotel or lodging assets that would
otherwise be prohibited by such clauses (iii) and (iv) if such
investment is made as part of a transaction involving existing
office properties, and such Operating Company has a reasonable
plan for disposing of the
29
investment in the prohibited assets to the extent necessary to
comply with the requirements of such clauses (iii) and (iv)
within twelve months after making such investment.
(vi) After the Initial Investment Period, the
Partnership will not provide funding to an Operating Company
for investment in any single Investment in excess of 25% of
the Partnership's Committed Capital; provided that the
Partnership may provide funding for an Investment by an
Operating Company that exceeds such 25% limit (but which does
not in any event exceed 50% of the Partnership's Committed
Capital), if such Operating Company has a reasonable plan, in
the judgment of the General Partner, to reduce the Committed
Capital of the Partnership invested in such Investment to 25%
or less of the Committed Capital of the Partnership within
nine months after making such investment.
SECTION 5.3 Management Board.
(a) The General Partner shall be subject to the oversight
of a management board (the "Management Board"). The Management Board
will initially have seven members. The General Partner shall have the
right to appoint five members of the Management Board and SLR shall
have the right to appoint two members (each, an "SLR Designee"). The
name of each of the initial members of the Management Board and of the
party that appointed such person are set forth on Schedule 5.3. Each
member of the Management Board shall serve until the removal,
resignation, death or incapacity of such member. Any member of the
Management Board may be removed or replaced at any time by the party
that appointed such member with or without cause. Members of the
Management Board shall not receive any compensation from the
Partnership for their services as such. The Management Board may
require the removal of any Partnership officer, and may increase or
decrease the size of the Management Board, subject to the appointment
rights of the General Partner and SLR.
(b) The General Partner shall not take any of the
following actions without the approval of the Management Board:
(i) acquire an interest in, or advance funds to,
an Operating Company;
(ii) dispose of all or any material part of its
interest in an Operating Company;
(iii) remove or appoint any officer of the
Partnership,
(iv) issue any Units pursuant to Section 3.7,
(v) make any change to the number of persons
comprising the Management Board or the right of any Person to
appoint representatives to the Management Board,
(vi) approve or modify any annual budget of the
Partnership, or
30
(vii) such other matters as are specified in this
Agreement.
(c) The General Partner will not give its consent, on
behalf of the Partnership, for an Operating Company to take any of the
following actions without the approval of the Management Board:
(i) acquire an Investment,
(ii) dispose of all or any material part of an
Investment,
(iii) incur any Indebtedness for which such
Operating Company is liable or which is secured in whole or in
part by any Investment,
(iv) remove or appoint any officer of such
Operating Company,
(v) issue any equity interest in such Operating
Company,
(vi) make any change to the fees payable by any
Fund Entity in which such Operating Company has an interest
under any Property Services Agreement,
(vii) make any change to the number of persons
comprising the governing body of such Operating Company or the
right of any Person to appoint representatives to such
governing body,
(viii) approve or modify any annual capital or
operating budget of such Operating Company, or
(ix) such other matters as are specified in this
Agreement.
(d) Meetings of the Management Board may be called at any
time by the General Partner, the President or by any member of the
Management Board on five Business Days' written notice, which notice
shall include a description of the matters to be discussed at such
meeting. Action may be taken by the Management Board at any meeting at
which a quorum is present, which quorum shall consist of a majority
(attending personally or represented by proxy) of the persons then
serving as members of the Management Board; provided that a quorum
shall not exist at any meeting unless at least one SLR Designee is
present (either personally or represented by proxy) at such meeting.
Notwithstanding the preceding sentence, if none of the SLR Designees,
acting in good faith, is able to attend a meeting of the Management
Board on the meeting date specified in the notice of such meeting or
within two Business Days thereafter, the quorum for such meeting shall
consist of a majority (attending personally or represented by proxy) of
the persons then serving as members of the Management Board (other than
the SLR Designees). Members of the Management Board may participate in
meetings in person, including by telephone conference call at which all
persons participating can hear and be heard, and shall be also deemed
to participate at any meeting at which (and to the extent which) such
member is represented by proxy.
31
(e) Any matter presented to the Management Board for its
consideration at a meeting duly called and held in accordance with this
Section 5.3 at which a quorum is present shall be deemed to have been
approved and consented to by the Management Board if a majority of the
members of the Management Board who are present at the meeting or
represented by proxy vote in favor of such action; provided that such
majority must include at least one SLR Designee in the case of any
consent to be given by the Management Board with respect to any of the
following:
(i) solicitation of Persons resident in Japan or
East Asia as prospective investors in the Partnership, and the
acceptance by the General Partner, on behalf of the
Partnership, of any subscription for Units by any such Person,
(ii) any change in the fees payable under the
Property Services Agreement in respect of Assets acquired from
SLR, or
(iii) any change in the members of the Management
Board appointed by SLR.
(f) Notwithstanding the provisions of paragraph (d) of
this Section 5.3, and subject to the provisions of paragraph (e) of
this Section 5.3, any action required or permitted to be taken at a
meeting of the Management Board may be taken without a meeting, without
prior notice, and without a vote, if a consent or consents in writing,
setting forth the action so taken, shall be signed by such members of
the Management Board as would be necessary to approve such action at a
meeting of the Management Board at which all members were present.
(g) Notwithstanding the provisions of this Section 5.3,
no Investment will be considered by the Management Board for its
approval without endorsement of such Investment by the President.
(h) If SLR, after the date hereof, does not acquire, or
acquires and ceases to hold, any Partnership Interest, then unless, on
or before December 31, 2005, SLR and/or Affiliates of SLR, (1)
contribute at least $25 million to the capital of the Fund in exchange
for Partnership Units (or other units of Fund equity), or (2) raise, on
behalf of the Fund, as least $25 million in capital contributions or
capital commitments to the Fund; then the SLR Designees on the
Management Board and on any governing body of any Fund Entity shall
cease to have any voting rights on any such governing body but shall be
observers to the meetings of each such governing body. If neither of
the events described in clauses (1) and (2) of this Section 5.3(h) has
occurred on or before the later to occur of the fifth anniversary of
(A) the date of this Agreement (if SLR does not acquire a Partnership
Interest), or (B) the date of the sale to ▇▇▇▇▇ or an Affiliate of
▇▇▇▇▇ or redemption by the Partnership of all Partnership Units
acquired by SLR, then, on such date, all rights of SLR and the SLR
Designees under this Agreement shall cease, and the General Partner
shall amend this Agreement to reflect that such is the case.
SECTION 5.4 Advisory Committee.
32
(a) In connection with the First Third Party Closing, the
General Partner shall select a committee (the "Advisory Committee")
consisting of Fund Investors or their representatives or designees;
provided that no member of the Advisory Committee shall be an Affiliate
of the General Partner (or a designee or representative thereof). The
General Partner will meet with the Advisory Committee at least
semi-annually to consult on various matters concerning the Partnership,
including financial statements and appraisals, the status of existing
investments and such other matters as the General Partner may determine
or any member of the Advisory Committee may reasonably propose.
(b) The Advisory Committee's approval will not be
required for any actions or decisions of the General Partner or the
Management Board, except that approval of the Advisory Committee shall
be required for:
(i) any transaction between the Partnership or
any Fund Entity, on the one hand, and ▇▇▇▇▇ or any Affiliate
of ▇▇▇▇▇, on the other hand, other than: (A) the provision of
services pursuant to any Property Services Agreement, (B) the
leasing of a limited amount of office space in a Property on
market terms by ▇▇▇▇▇ or any of its Affiliates for conducting
its operations, (C) the sale of Units or of any equity
securities of any Fund Entity to ▇▇▇▇▇ or any of its
Affiliates at the same price per share or unit as is offered
to other investors or, if no such securities are being offered
to unaffiliated investors, at the Current Unit Value or at
such other price as may be approved by the Partners by a Super
Majority Vote, (D) the redemption of Units held by Affiliates
of ▇▇▇▇▇ pursuant to the terms of this Agreement, (E) the
execution, delivery or performance of any Approved Agreement,
(F) any other transaction specifically permitted by this
Agreement, and (G) any transaction which is on terms no less
favorable to the Partnership or such Fund Entity than would be
obtained from an unaffiliated third party.
(ii) the ratification of any Appraiser selected
by the General Partner, pursuant to Section 5.9 hereof;
(iii) any in kind distribution by the Partnership
of publicly traded securities; and
(iv) notwithstanding clause (i)(A) above, any
increase of fees payable to any Property Manager pursuant to
any Property Services Agreement to amounts greater than those
provided for in the Property Services Agreement Form.
(c) Any action of, or approval required by, the Advisory
Committee shall require the vote of members of the Advisory Committee
who account for at least a majority of the aggregate Committed Capital
collectively held by Fund Investors represented on the Advisory
Committee.
(d) The quorum required for a meeting of the Advisory
Committee shall be a majority in interest of its members. Members of
the Advisory Committee may participate
33
in a meeting of the Advisory Committee by means of conference telephone
or video conferencing by means of which all persons participating in
the meeting can hear and be heard. Any member of the Advisory Committee
who is unable to attend a meeting of the Advisory Committee may grant
in writing to another member of the Advisory Committee or any other
Person such member's proxy to vote on any matter upon which action is
to be taken at such meeting. The Advisory Committee shall conduct its
business by such procedures as a majority of its members consider
appropriate.
(e) Any action required or permitted to be taken at a
meeting of the Advisory Committee may be taken without a meeting,
without prior notice, and without a vote, if a consent or consents in
writing, setting forth the action so taken, shall be signed by such
members of Advisory Committee as would be necessary to approve such
action at a meeting of the Advisory Committee at which all members were
present.
(f) No fees shall be paid by the Partnership or any
Operating Company to members of the Advisory Committee for their
services as such, but the members of the Advisory Committee shall be
reimbursed by the Partnership for all reasonable out-of-pocket expenses
incurred in attending meetings of the Advisory Committee.
(g) Any member of the Advisory Committee may resign upon
delivery of written notice from such member to the General Partner, and
shall be deemed removed if the Limited Partner that the member
represents requests such removal in writing to the General Partner or
becomes a Defaulting Limited Partner. Any vacancy in the Advisory
Committee, whether created by the resignation or death of any member or
the removal of such member at the request of the Limited Partner
represented by such member, shall be filled by a representative of the
Limited Partner represented by such member.
(h) The General Partner may, in its discretion, grant to
any Fund Investor which does not have a representative on the Advisory
Committee the right to have a non-voting observer attend each meeting
of the Advisory Committee. The General Partner shall provide to any
such observer notice of the time and place of any meeting of the
Advisory Committee, and of any written consent being solicited from the
Advisory Committee, in the same manner and at the same time as notice
is sent to the members of the Advisory Committee. The General Partner
shall also provide to any such observer copies of all notices, reports,
minutes, consents and other documents at the time and in the manner as
they are provided to the Advisory Committee. Any observer who attends
any meetings of the Advisory Committee shall execute and comply with an
agreement with the Partnership and the General Partner containing such
restrictions on the use and disclosure of confidential information and
other matters as the General Partner may reasonably request.
SECTION 5.5 Management Team. The General Partner shall, and
hereby does, delegate authority and responsibility for the day-to-day management
of the business of the Partnership to a President (the "President"), a Senior
Investment Manager and a Senior Asset Manager of the Partnership, and such other
officers of the Partnership as the General Partner may deem appropriate, with
the establishment of any office and the appointment of any person to fill such
office by the General Partner being subject to the approval of the Management
Board. Each
34
officer of the Partnership shall be an employee of ▇▇▇▇▇ and shall, other than
the President, report to the President. The officers of the Partnership,
together with such other employees of ▇▇▇▇▇ as may be assigned to conduct the
business of the Partnership under the supervision of such officers are
collectively referred to as the "Management Team." The initial officers of the
Partnership and their offices are set forth on Schedule 5.5.
SECTION 5.6 Management Rights of Limited Partners. Except as
expressly provided in this Agreement, no Limited Partner shall have the right or
power to participate in the management or affairs of the Partnership, nor shall
any Limited Partner have the power to sign for or bind the Partnership. The
exercise by any Limited Partner of any right conferred on Limited Partners by
this Agreement shall not be construed to constitute participation by such
Limited Partner in the control of the business of the Partnership so as to make
such Limited Partner liable as a general partner for the debts and obligations
of the Partnership for purposes of the Act.
SECTION 5.7 Advisory Agreements. The General Partner, the
Partnership and any other Fund Entity may enter into one or more agreements
(each, an "Advisory Agreement") with an Investment Advisor for the provision of
advice and recommendations with respect to (to the extent applicable to such
Fund Entity) the origination, investigation, structuring, finance, acquisition,
monitoring and/or disposition of Investments by, and/or the structuring,
organization, capitalization and/or financing of, any Fund Entity. The General
Partner shall remain liable to the Partnership for the provision of any such
services to the Partnership notwithstanding any such Advisory Agreement. The
General Partner shall bear the costs of all services provided by any Investment
Advisor under any Advisory Agreement; provided that the General Partner may
assign all or any part of its right to receive payment of Acquisition Fees to
any Investment Advisor. Following any such assignment, the Partnership shall be
obligated to pay the Acquisition Fees so assigned to the applicable Investment
Advisor. The Partnership shall become a party to each Advisory Agreement for the
purpose of guaranteeing such payment obligation, to the extent of the
Acquisition Fees payable to the General Partner under this Agreement, and for
purposes of guaranteeing the payment obligations of the General Partner under
such Advisory Agreement to the extent of the Asset Management Fees payable to
the General Partner under this Agreement.
SECTION 5.8 Property Services Agreements. For each Property in
which an Operating Company invests, a Fund Entity through which such Operating
Company owns such Property shall enter into a property services agreement (a
"Property Services Agreement") with ▇▇▇▇▇ or an Affiliate of ▇▇▇▇▇ (a "Property
Manager") substantially in the form attached hereto as Exhibit A (the "Property
Services Agreement Form") pursuant to which the Property Manager will provide
property management, redevelopment and leasing services for such Property. By
executing this Agreement, each Limited Partner approves the provisions of the
Property Services Agreement Form and consents to the execution, delivery and
performance by a Fund Entity of a Property Services Agreement substantially in
such form with respect to each Property in which any Operating Company invests.
Changes may be made to the Property Services Agreement as the General Partner or
the applicable Operating Company deems necessary or appropriate to accommodate
the particular circumstances of each Property; provided that the General Partner
shall not authorize any increase in the Property Services Fees payable to the
Property Manager or any material increase in the risks or obligations to be
borne by the Owner under any Property
35
Services Agreement over those provided for in or contemplated by the Property
Services Agreement Form, without the consent of the Advisory Committee pursuant
to Section 5.4 hereof.
SECTION 5.9 Asset Valuations; Determination of Current Unit
Value.
(a) Commencing in the first full calendar quarter
following the termination of the Initial Offering Period, all
Properties shall be appraised by an Appraiser on a rolling basis
whereby approximately one-quarter of the Properties are appraised each
calendar quarter and each Property is appraised not less frequently
than once in any twelve-month period.
(b) Any Person selected to appraise a Property (an
"Appraiser") shall be a Person qualified to appraise assets such as the
Property in the market in which the Property is located. At least two
Appraisers will be retained for any calendar year, with each Appraiser
retained appraising approximately equal portions of the Partnership's
portfolio of Properties. Appraisers will be rotated or replaced so that
no Property is appraised by the same Appraiser for more than three
consecutive years. Each Appraiser will be selected by the General
Partner, subject to the approval of the Advisory Committee pursuant to
Section 5.4 hereof. The General Partner may from time to time submit a
list of Appraisers to the Advisory Committee. Any Appraiser on such
list will be deemed approved by the Advisory Committee unless, within
thirty days of the submission of such list to the Advisory Committee,
the Advisory Committee votes to disapprove such Appraiser.
(c) Each calendar quarter the General Partner shall
establish the Current Market Value of each Property and the Current
Unit Value derived from the Current Market Values, as so established,
of all Properties. The "Current Market Value" of a Property shall be
(i) the value established by the most recent appraisal of the Property
conducted by an Appraiser in accordance with Sections 5.9(a) and (b),
(ii) if such Property has not been appraised since its acquisition by
the Partnership, the value attributed to such Property upon its
acquisition by the Partnership, or (iii) such other value as the
General Partner determines is more appropriate than the value provided
in clause (i) or (ii) based on changes in the condition of the
Property, the market in which it is located or other relevant factors
since the date such Property was appraised or acquired, as applicable.
The "Current Unit Value" of any Partnership Unit as of any date shall
be the amount determined by dividing (x) the net distributions that
would be received by the Partnership if all Properties were sold at
their Current Market Value in an all cash sale as of such date, and the
net proceeds of such sale, determined after taking into account
expected transaction costs (including all closing costs customarily
borne by a seller in the market where each Property is located and
estimated legal fees and expenses) and the repayment of all debts of
each Fund Entity, as reasonably determined by the General Partner, were
distributed by each Fund Entity to its owners, by (y) the total number
of such units of equity outstanding as of such date, including any
other securities that are convertible into or exchangeable for such
units as of such date.
SECTION 5.10 Management of Operating Companies. Each Operating
Company shall be governed by a board of trustees, board of directors, board of
managers or
36
similar governing body whose membership includes all of the members of the
Management Board. The day to day operations of each Operating Company shall be
managed by a management team which is headed by the President and which includes
the other members of the Management Team. The Constituent Documents of each
Operating Company, together with any other agreements that may be entered into
in connection with the organization of such Operating Company, shall provide (i)
the governing body thereof with oversight and approval rights with respect to
the business and affairs of such Operating Company which are comparable to the
oversight and approval rights which this Agreement provides to the Management
Board with respect to the business and affairs of the Partnership, and (ii) SLR
Designees with rights to participate in the management of such Operating Company
which are comparable to the rights which this Agreement provides to SLR
Designees to participate in the management of the Partnership. The General
Partner shall, or shall cause the Partnership to, take such actions as may be
permitted or required under the terms of the Constituent Documents of each
Operating Company, and under the terms of any agreement entered into by the
Partnership or the General Partner in connection with the organization of such
Operating Company, to ensure that the requirements of this Section 5.10 are met
with respect to each Operating Company.
SECTION 5.11 Non-Managing General Partner. Notwithstanding
anything to the contrary contained in this Agreement, the General Partner may,
in its discretion at any time and without the prior consent of the Limited
Partners or the Advisory Committee, admit one Approved ▇▇▇▇▇ Entity as a
non-managing general partner of the Partnership (the "Non-Managing General
Partner"). In such event, (i) the Non-Managing General Partner shall be deemed
to be a general partner of the Partnership for all purposes under the Act, but
shall have only those rights, privileges, powers and obligations set forth on
Schedule 5.11, (ii) the General Partner shall automatically be deemed to be the
managing general partner of the Partnership (the "Managing General Partner")
and, as such, shall have all rights, privileges, powers and obligations as the
General Partner has under this Agreement, and (iii) this Agreement shall be
amended by the Managing General Partner, without the consent of any other
Partners, in the manner set forth in Schedule 5.11. As used herein, the term
"Approved ▇▇▇▇▇ Entity" means (A) an Entity (1) whose formation was sponsored by
▇▇▇▇▇ or an Affiliate of ▇▇▇▇▇, (2) which elects to be taxed as a "real estate
investment trust" as defined in Section 856 of the Code and applicable
Regulations, (3) which has filed to have equity securities issued by it
registered under Section 12(b) or 12(g) of the Securities Exchange Act of 1934,
as amended, and (4) a majority of whose board of directors or other governing
body is composed of persons who are not employees or agents of ▇▇▇▇▇ or of any
Affiliate of ▇▇▇▇▇, or (B) an Affiliate of such an Entity that such Entity
Controls.
ARTICLE VI
EXCULPATION AND INDEMNIFICATION
SECTION 6.1 Exculpation of the General Partner. The General
Partner and its Affiliates, and the direct or indirect members, managers,
partners, shareholders, officers, directors, employees, agents and legal
representatives of the General Partner and any such Affiliate, including any
officer of the Partnership and any Investment Advisor (in each case, an
"Indemnified Person"), shall not be liable to any Partner or the Partnership for
any act or failure
37
to act on behalf of the Partnership or of any Operating Company, except to the
extent such act or failure to act constitutes gross negligence, recklessness,
willful misconduct or bad faith on the part of the Indemnified Person, a knowing
violation of law by the Indemnified Person or a material breach by the
Indemnified Person of its obligations under this Agreement. The General Partner
may exercise any of the powers granted to it hereunder and perform any of the
duties imposed upon it hereunder either directly or by or through agents and
shall not be responsible for any misconduct or negligence on the part of any
such agent selected with reasonable care. The General Partner may rely, and
shall be protected in acting or refraining from acting, and shall be deemed to
have acted in good faith and without gross negligence or willful misconduct,
upon any consent, approval or any other action taken by the Limited Partners or
the Advisory Committee, and upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, bond, debenture,
or other paper or document believed by it in good faith to be genuine and to
have been signed or presented by the proper party or parties. The General
Partner may consult with legal counsel, accountants, appraisers, management
consultants, investment bankers, architects, engineers, environmental
consultants and other professional consultants and advisers selected by it with
reasonable care, and shall be fully protected and justified and shall be deemed
to have acted in good faith and without gross negligence or willful misconduct,
in any action or inaction which is taken or omitted to be taken in reasonable
reliance upon the advice or opinion of such Persons as to matters within such
Persons' professional or expert competence. The General Partner shall not be
liable to the Partnership or the Partners for the failure to perform any
obligation that the General Partner cannot perform because the Partnership has
insufficient funds to pay the cost and expense relative to such obligation.
SECTION 6.2 Indemnification of General Partner.
(a) The Partnership, to the fullest extent permitted by
law, shall indemnify and hold harmless each Indemnified Person from and
against any loss, liability, expense, judgment, settlement cost, fees
and related expenses (including reasonable attorneys' fees and
expenses), costs or damages arising out of or in connection with any
act taken or omitted to be taken in respect of the affairs of the
Partnership or of any Operating Company, unless such act or omission
constitutes the gross negligence, recklessness, willful misconduct or
bad faith on the part of the Indemnified Person, a knowing violation of
law by the Indemnified Person or a material breach by the Indemnified
Person of its obligations under this Agreement. The termination of any
action, suit or proceeding by settlement shall not, of itself, create a
presumption that an Indemnified Person did not act in good faith or in
a manner that was reasonably believed to be in, or not opposed to, the
best interests of the Partnership or such Operating Company or was
guilty of gross negligence, willful misconduct, bad faith or a knowing
violation of law.
(b) The Partnership, in the discretion of the General
Partner, may advance to any Indemnified Person reasonable attorneys'
fees and other costs and expenses incurred in connection with the
defense of any action or proceeding which arises out of conduct which
is the subject of the indemnification provided hereunder; provided,
however, that (i) the General Partner hereby agrees, and each other
Indemnified Person shall agree as a condition to receiving any such
advance, that in the event an Indemnified Person receives any advance,
the Indemnified Person shall reimburse the Partnership for the advance
to the extent that it is judicially determined, in a final,
non-appealable judgment or binding
38
arbitration, that the Indemnified Person was not entitled to
indemnification under this Section 6.2 and (ii) neither the General
Partner nor any other Indemnified Person shall be entitled to any
advance of costs and expenses in any action (either direct or
derivative) brought against such Indemnified Person by Limited Partners
pursuant to a Majority LP Vote, except to the extent that a court of
competent jurisdiction issues a ruling (whether preliminary or final)
substantially to the effect that the claim is one as to which it is
likely that such Indemnified Person is entitled to the benefits of the
exculpatory provisions set forth in Section 6.1. Notwithstanding
anything to the contrary contained in this Section 6.2, neither the
General Partner nor any other Indemnified Person shall be entitled to
indemnification for, or be indemnified by the Partnership against, any
claim in any action (either direct or derivative) brought against such
Indemnified Person by any Limited Partner if it is established, by a
final non-appealable judgment, that such claim was one as to which such
Indemnified Person is not entitled to the benefits of the exculpatory
provisions set forth in Section 6.1.
SECTION 6.3 Treatment of Management Board and Advisory
Committee Members. No member of the Management Board, the Management Team or the
Advisory Committee shall be a fiduciary of the Partnership or of any Partner. No
member of the Management Board, the Management Team or the Advisory Committee
shall be liable to any Partner or the Partnership for any reason (other than
fraud or willful misconduct on the part of such person) including for any
mistake in judgment, any action or inaction taken or omitted to be taken, or for
any loss due to any mistake, action or inaction. The participation by a person
on the Management Board, the Management Team or the Advisory Committee shall not
be construed to constitute participation by such person in the control of the
business of the Partnership so as to make such person liable as a general
partner for the debts and obligations of the Partnership for purposes of the
Act. The participation by the representative of any Limited Partner on the
Management Board or the Advisory Committee in the activities of the Management
Board or Advisory Committee shall not be construed to constitute participation
by such Limited Partner in the control of the business of the Partnership so as
to make such Limited Partner liable as a general partner for the debts and
obligations of the Partnership for purposes of the Act. No Limited Partner who
has appointed a member of the Management Board or Advisory Committee shall be
deemed to be an Affiliate of the Partnership or the General Partner solely by
reason of such appointment. In the absence of fraud or willful misconduct on the
part of a member of the Management Board, the Management Team or the Advisory
Committee, the Partnership shall, to the fullest extent permitted by law,
indemnify and hold harmless each such member of the Management Board, the
Management Team and Advisory Committee with respect to the Partnership (and
their respective heirs and legal and personal representatives) who was or is a
party, or is threatened to be made a party, to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (including any action by or in the right of the Partnership or any
of the Partners), by reason of any actions or omissions or alleged acts or
omissions arising out of such Person's activities in connection with serving on
the Management Board, the Management Team or the Advisory Committee against
losses, damages or expenses (including reasonable attorney's fees, judgments,
fines and amounts paid in settlement) actually incurred by such person in
connection with such actions, suit or proceedings; provided that any person
entitled to indemnification from the Partnership hereunder shall obtain the
written consent of the General Partner (which consent shall not be unreasonably
withheld) prior to entering into any compromise or settlement which would result
in an obligation of the
39
Partnership to indemnify such person. The Partnership shall advance to any
member of the Management Board, the Management Team or the Advisory Committee
reasonable attorneys' fees and other costs and expenses incurred in connection
with the defense of any action or proceeding which arises out of conduct which
is the subject of the indemnification provided hereunder; provided, however,
that each such person must agree, as a condition to receiving any such advance,
that in the event such person receives any advance, such person shall reimburse
the Partnership for the advance to the extent that it is judicially determined,
in a final, non-appealable judgment or binding arbitration, that such person was
not entitled to indemnification under this Section 6.3.
SECTION 6.4 Limited Liability of Limited Partners. Except as
provided by the Act or other applicable law and subject to the obligations to
make Capital Contributions in accordance with this Agreement and its
Subscription Agreement and to pay taxes to the extent provided in Section
11.4(c), no Limited Partner (including any Limited Partner that is an Affiliate
of ▇▇▇▇▇ or of SLR) shall have any personal liability whatsoever in its capacity
as a Limited Partner, whether to the Partnership, to any of the Partners, or to
the creditors of the Partnership, for the debts, liabilities, contracts, or
other obligations of the Partnership or for any losses of the Partnership.
SECTION 6.5 Other Activities of Limited Partners. Subject to
Section 4.4 with respect to each Limited Partner that is an Affiliate of the
General Partner, each Limited Partner shall be entitled to and may have business
interests and engage in activities in addition to those relating to the
Partnership, including business interests and activities in direct competition
with the Partnership and the entities in which the Partnership invests and may
engage in transactions with, and provide services to, the Partnership or any
such entity. Neither the Partnership, any other Partner nor any other Person
shall have any rights by virtue of this Agreement in any business ventures of
any Limited Partner.
ARTICLE VII
EXPENSES AND FEES
SECTION 7.1 General Partner Expenses. The Partnership shall
not have any salaried personnel. The General Partner and its Affiliates, but not
the Partnership or any Limited Partner, shall bear and be charged with the
following costs and expenses of the Partnership's activities: (a) any costs and
expenses of providing to the Management Team the office space, facilities,
supplies, and necessary ongoing overhead support services for the Partnership's
operations and (b) the compensation of the Management Team. The expenses that
the General Partner is obligated or elects to pay under this Section 7.1 are
collectively referred to herein as the "General Partner Expenses".
Notwithstanding anything herein to the contrary, no costs or expenses payable by
the Owner of any Property under the terms of the Property Services Agreement
entered into with respect to such Property shall be deemed General Partner
Expenses.
SECTION 7.2 Asset Management Fee.
(a) On the last Business Day of each calendar quarter
(each such day, a "Quarterly Payment Date"), each Limited Partner shall
pay a fee directly to the General
40
Partner in accordance with and subject to the provisions of this
Section 7.2 (the "Asset Management Fee"). The Asset Management Fees
payable by each Limited Partner hereunder are in addition to, and shall
not reduce, the Capital Commitment of such Limited Partner. Following
the termination of the Initial Investment Period, the General Partner
shall invest 50% of all Asset Management Fees it receives in the
Partnership in exchange for Partnership Units at their Current Unit
Value.
(b) The Asset Management Fee payable by each Limited
Partner on each Quarterly Payment Date shall be an amount equal to the
product of (1) the Asset Management Fee Base of such Limited Partner on
the first day of the quarter then ending multiplied by (2) 25%
multiplied by (3) (i) for each Class A Major Investor, 0.75% (ii) for
each Class B Major Investor, 0.85%, (iii) for each Class C Major
Investor, 0.90%, (iv) for each Class D Major Investor, 0.95%, or (v)
for each Partner that is not a Major Investor, 1.00%. The "Asset
Management Fee Base" for any Limited Partner shall be (A) prior to the
termination of the Initial Investment Period, the Unrecovered Capital
of such Limited Partner plus such Limited Partner's Unfunded
Commitment, and (B) after the termination of the Initial Investment
Period, the Unrecovered Capital of such Limited Partner. The
"Unrecovered Capital" of a Limited Partner shall mean the aggregate
amount of all Capital Contributions made by such Limited Partner to the
Partnership less the aggregate amount of capital returned to such
Limited Partner by the Partnership by either the redemption of
Partnership Units or the distribution of Capital Cash Flow. The Asset
Management Fee shall be prorated for any partial quarter and for the
quarter in which the termination of the Initial Investment Period
occurs based on the number of days in such quarter or the number of
days in such quarter before and after such termination occurs, as
applicable.
SECTION 7.3 Acquisition Fees. For each Investment made by an
Operating Company (other than an Operating Company which makes its investments
indirectly through another Operating Company), other than any Investment in a
Property acquired by such Operating Company from SLR or any of its Affiliates,
such Operating Company shall pay to the General Partner or another Affiliate of
▇▇▇▇▇ a fee (an "Acquisition Fee") in an amount equal to 1% of the value of the
total consideration (including any assumed Indebtedness) paid by such Operating
Company in respect of such Investment. An Acquisition Fee shall be payable in
cash within ten days after the closing of the Investment to which it relates.
The General Partner or such other Affiliate of ▇▇▇▇▇ to which the Acquisition
Fee is paid shall invest 50% of all Acquisition Fees payable after the
termination of the Initial Investment Period in the Partnership in exchange for
Partnership Units or, at the election of the General Partner or such other
Affiliate in the Operating Company paying such fee in exchange for equity in
such Operating Company, in each case valued at the Current Unit Value as of the
date of such closing. The General Partner's right to receive all or any portion
of any Acquisition Fee, or Acquisition Fees generally may be assigned to one or
more Investment Advisors as contemplated by Section 5.7, in which case the
amount payable to the General Partner by the applicable Operating Company
pursuant to this Section 7.3 (after giving effect to any such assignment) will
be decreased appropriately. The Partnership or such Operating Company shall be
liable to an Investment Advisor for the payment of any Acquisition Fee payable
by it that has been assigned to such Investment Advisor pursuant to the
preceding sentence; provided that the total amount payable by an Operating
41
Company in respect of Acquisition Fees shall in no event exceed the amount
provided for in this Section 7.3 or the applicable Constituent Documents of such
Operating Company.
SECTION 7.4 Partnership Expenses
(a) The Partnership shall bear and be charged with the
following costs and expenses of the Partnership (and shall promptly
reimburse the General Partner or its Affiliates, as the case may be, to
the extent that any of such costs and expenses are paid directly by
such entities) (the "Partnership Expenses"):
(i) fees and expenses for attorneys and
accountants;
(ii) all out-of-pocket costs and expenses, if
any, incurred by the Partnership in developing, negotiating,
structuring and organizing any Operating Company;
(iii) the costs of any litigation, D&O liability
or other insurance and indemnification or extraordinary
expense or liability relating to the affairs of the
Partnership;
(iv) expenses of liquidating the Partnership;
(v) any taxes, fees or other governmental
charges levied against the Partnership and all expenses
incurred in connection with any tax audit, investigation,
settlement or review of the Partnership; and
(vi) the out-of-pocket expenses of the members of
the Advisory Committee under Section 5.4(f).
(b) Partnership Expenses may be allocated among the
Partnership's investments in a manner reasonably determined by the
General Partner. Partners may be required to make Capital Contributions
to the extent of their Unfunded Commitments for the payment of such
Partnership Expenses to the extent the Partnership does not have
sufficient funds to pay such expenses.
SECTION 7.5 Operating Company Expenses.
(a) Each Operating Company shall bear and be charged with
the following costs and expenses of such Operating Company (and shall
promptly reimburse the General Partner or its Affiliates, as the case
may be, to the extent that any of such costs and expenses are paid
directly by such entities) (the "Operating Company Expenses"):
(i) fees and expenses for attorneys and
accountants;
(ii) all out-of-pocket costs and expenses, if
any, incurred by such Operating Company in acquiring,
developing, negotiating, structuring, improving, and disposing
of actual Investments, including any financing, legal,
accounting, advisory and consulting expenses in connection
therewith (to the extent not
42
subject to any reimbursement of such costs and expenses by
entities in which the Partnership invests or other third
parties);
(iii) brokerage commissions, custodial expenses
and other investment costs actually incurred in connection
with actual Investments;
(iv) the costs of any litigation, D&O liability
or other insurance and indemnification or extraordinary
expense or liability relating to the affairs of such Operating
Company (or, to the extent such expenses are paid by the
Partnership pursuant to clause (iii) of Section 7.4(a), an
allocable share of such expenses shall be charged to such
Operating Company by the Partnership);
(v) expenses of liquidating such Operating
Company;
(vi) any taxes, fees or other governmental
charges levied against such Operating Company and all expenses
incurred in connection with any tax audit, investigation,
settlement or review of such Operating Company; and
(vii) a reasonably allocable share (as determined
by the General Partner) of the out-of-pocket expenses of the
members of the Advisory Committee paid by the Partnership
pursuant to clause (vi) of Section 7.4(a).
(b) Operating Company Expenses may be allocated among an
Operating Company's Investments in a manner reasonably determined by
such Operating Company. Partners may be required to make Capital
Contributions to the extent of their Unfunded Commitments to enable the
Partnership to provide funds to any Operating Company to pay Operating
Company Expenses to the extent that such Operating Company does not
have sufficient funds to pay such expenses.
(c) Any amounts paid by the Partnership for or resulting
from any instrument or other arrangement designed to hedge or reduce
one or more risks associated with an Investment shall be considered a
Partnership Expense relating to such Investment. Any distributions
resulting from any such arrangements shall be treated as Operating Cash
Flow from such Investment.
(d) The General Partner may withhold on a pro rata basis
from any distributions amounts necessary to create, in its sole
discretion, appropriate reserves for expenses (including Acquisition
Fees) and liabilities, contingent or otherwise, of the Partnership, and
may withhold from distributions otherwise payable to any Limited
Partner amounts necessary to pay any unpaid amounts of any Asset
Management Fee payable by such Limited Partner (in which case any such
withheld distributions shall be deemed to have been made to such
Limited Partner for all purposes under this Agreement).
SECTION 7.6 Organization Expenses. The Partnership shall pay
all out-of-pocket costs and expenses (including legal, accounting, tax,
consulting and other professional fees and expenses and travel and entertainment
expenses) incurred by the Partnership and the General Partner and its Affiliates
in connection with the structuring and organization of the
43
Partnership, NY Trust, US Core Trust and US Core Properties and the offering and
sale of Partnership Units and, if applicable, securities issued by NY Trust, US
Core Trust and US Core Properties, including expenses (other than placement
fees) incurred in connection with the solicitation of Capital Commitments
through and including all Subsequent Closings and the negotiation, execution and
delivery of this Agreement and all other documents entered into in connection
herewith (any such amounts, the "Organizational Expenses").
ARTICLE VIII
CAPITAL ACCOUNTS; ALLOCATIONS
SECTION 8.1 Capital Accounts. A separate capital account
("Capital Account") shall be maintained for each Partner.
(a) To each Partner's Capital Account there shall be
added such Partner's Capital Contributions, such Partner's distributive
share of Profits and any items in the nature of income or gain which
are specially allocated pursuant to Section 8.6 or Section 8.7, and the
amount of any Partnership liabilities assumed by such Partner or which
are secured by any Partnership property distributed to such Partner.
(b) From each Partner's Capital Account there shall be
subtracted the amount of cash and the Gross Asset Value of any
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
specially allocated pursuant to Section 8.6 or Section 8.7, 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,
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 8.1(a) and (b), there shall be taken into account
Code Section 752(c) and any other applicable provisions of the Code and
Regulations.
(e) This Section 8.1 and the other provisions of this
Agreement relating to the maintenance of Capital Accounts are intended
to comply with 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 debits or credits relating to liabilities which are secured
by contributed or distributed property or which are assumed by the
Partnership, or the Partners) are computed in order to comply with such
Regulations, the General Partner may make such modification, provided
that it is not likely to have a material effect on the amounts
distributed to any Partner pursuant to Section 12.4 upon the
liquidation of the Partnership. The General Partner also shall (i) make
any adjustments that are necessary or appropriate to maintain equality
between the
44
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),
and (ii) make any appropriate modifications in the event unanticipated
events might otherwise cause this Agreement not to comply with
Regulations Section 1.704-1(b).
SECTION 8.2 Interest on and Return of Capital.
(a) No Partner shall be entitled to any interest on its
Capital Account or on its Capital Contributions to the Partnership.
(b) Except as expressly provided for in this Agreement,
no Partner shall have the right to demand or to receive the return of
all or any part of its Capital Contributions to the Partnership and
there shall be no priority of one Partner over another Partner as to
the return of Capital Contributions or withdrawals or distributions of
Profits and Losses. 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.
SECTION 8.3 Negative Capital Accounts. Subject to the
provisions of any guarantee or other written agreement between a Partner and the
Partnership, no Partner shall be required to pay to the Partnership any deficit
or negative balance which may exist in its Capital Account.
SECTION 8.4 Allocation of Profits.
(a) After giving effect to the allocations set forth in
Sections 8.6 and 8.7, Profits for any Fiscal Year shall be allocated
(i) first, among the Partners in proportion to, and until the
cumulative Profits allocated to each Partner under this Section 8.4(a)
equals, the cumulative Losses allocated to each such Partner under
Section 8.5(b), and (ii) second, pro rata among the Partners in
proportion to the number of Units held by each Partner.
(b) In the event that the Partnership issues or redeems
Units pursuant to Article III hereof, the General Partner shall make
such revisions to the method of allocating Profits in this Section 8.4
as it determines are necessary to reflect the terms of the issuance or
redemption of Units, including such revisions as are needed to ensure
that such allocations (i) will comply with the terms of Regulation
Sections 1.704-1 and -2 and Code Section 514(c)(9)(E), (ii) will
properly reflect the varying interests of the Partners in the
Partnership, and (iii) will cause the Capital Accounts of the Partners
in respect of Units held by them to be in the ratios in which the
Partners are entitled to receive distributions with respect to their
Units pursuant to Article IX hereof.
SECTION 8.5 Allocations of Losses.
(a) After giving effect to the special allocations set
forth in Sections 8.6 and 8.7, Losses for any Fiscal Year shall be
allocated pro rata among the Partners in proportion to the number of
Units held by each Partner.
45
(b) The Losses allocated pursuant to Section 8.5(a) shall
not exceed the maximum amount of Losses that can be so allocated
without causing any Partner to have an Adjusted Capital Account Deficit
at the end of any Fiscal Year. Subject to the limitations in the
preceding sentence, all Losses in excess of the limitations set forth
in this Section 8.5(b) shall be allocated pro rata to the other
Partners in proportion to the number of Units held by each Partner.
(c) In the event that the Partnership issues or redeems
Units pursuant to Article III hereof, the General Partner shall make
such revisions to the method of allocating Losses in this Section 8.5
as it determines are necessary to reflect the terms of the issuance or
redemption of Units, including such revisions as are needed to ensure
that such allocations (i) will comply with the terms of Regulation
Section 1.704-1 and -2 and Code Section 514(c)(9)(E), (ii) will
properly reflect the varying interests of the Partners in the
Partnership and (iii) will cause the Capital Accounts of the Partners
in respect of Units held by them to be in the ratios in which the
Partners are entitled to receive distributions with respect to their
Units pursuant to Article IX hereof.
SECTION 8.6 Special Allocations. The following special
allocations shall be made in the following order:
(a) Except as otherwise provided in Regulations Section
1.704-2(f), and notwithstanding any other provision of this Article
VIII, 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). This Section 8.6(a) is intended to comply with the
minimum gain chargeback requirement in Regulations Section 1.704-2(f)
and shall be interpreted consistently therewith.
(b) Except as otherwise provided in Regulations Section
1.704-2(i)(4), and notwithstanding any other provision of this Article
VIII, 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).
The items to be so allocated shall be determined in accordance with
Regulations Sections 1.704-2(i)(4) and 1.704-2(i)(2). This Section
8.6(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.
46
(c) In the event any Partner unexpectedly receives any
adjustments, allocations, or distributions described in Regulations
Sections 1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5), or
1.704-1(b)(2)(ii)(d)(6), items of Partnership income and gain shall be
specially allocated to each such Partner in an amount and manner
sufficient to eliminate, to the extent required by the Regulations, the
Adjusted Capital Account Deficit of such Partner as quickly as
possible, provided that an allocation pursuant to this Section 8.6(c)
shall be made only if and to the extent that such Partner would have an
Adjusted Capital Account Deficit after all other allocations provided
for in this Article VIII have been tentatively made, as if this Section
8.6(c) were not in this Agreement.
(d) In the event any Partner has an Adjusted Capital
Account Deficit at the end of any Partnership Fiscal Year, each such
Partner shall be specially allocated items of Partnership income and
gain in the amount of such excess as quickly as possible, provided that
an allocation pursuant to this Section 8.6(d) shall be made only if and
to the extent that such Partner would have a deficit Capital Account
after all other allocations provided for in this Article VIII have been
made as if Section 8.6(c) hereof and this Section 8.6(d) were not in
this Agreement.
(e) Partner Nonrecourse Deductions for any Fiscal Year
shall be allocated pro rata among the Partners in proportion to the
number of Units held by each Partner.
(f) 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).
(g) To the extent an adjustment to the adjusted tax basis
of any Partnership asset pursuant to Code Section 734(b) is required,
pursuant to Regulations Section 1.704-1(b)(2)(iv)(m)(4), to be taken
into account in determining Capital Accounts as the result of a
distribution to a Partner in complete liquidation of its interest in
the Partnership, the amount of such adjustment to Capital Accounts
shall be treated as an item of gain (if the adjustment increases the
basis of the asset) or loss (if the adjustment decreases such basis)
and such gain or loss shall be specifically allocated to the Partner to
whom such distribution was made.
SECTION 8.7 Curative Allocations. The allocations set forth in
Section 8.5(b) and Sections 8.6(a), (b), (c) (d), (e) and (g) (the "Regulatory
Allocations") are intended to comply with certain requirements of the
Regulations under Code Section 704(b) and Code Section 514(c)(9)(E). It is the
intent of the Partners that, to the extent possible, all Regulatory Allocations
shall be offset either with other Regulatory Allocations or with special
allocations of other items of Partnership income, gain, loss, or deduction
pursuant to this Section 8.7. Therefore, notwithstanding any other provision of
this Article 8 (other than the Regulatory Allocations), the General Partner
shall make such offsetting special allocations of Partnership income, gain,
loss, or deduction in whatever manner it determines appropriate so that, after
such offsetting allocations are made, each Partner's Capital Account balance is,
to the extent possible, equal to the Capital Account balance such Partner would
have had if the Regulatory Allocations were not part of the Agreement and all
Partnership items were allocated pursuant to Section
47
8.4(a)(ii) and 8.5(a). In exercising its discretion under this Section 8.7, the
General Partner shall take into account future Regulatory Allocations under
Sections 8.6(a) and (b) that, although not yet made, are likely to offset other
Regulatory Allocations previously made under Sections 8.6(e) and (f).
SECTION 8.8 Tax Allocations: Code Section 704(c).
(a) 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 method or methods under Code
Section 704(c) and the Regulations thereunder.
(b) In the event the Gross Asset Value of any Partnership
asset is adjusted pursuant to the definition of "Gross Asset Value",
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.
(c) Any elections or other decisions relating to the
allocations provided under this Article VIII shall be made by the
General Partner using any permissible manner under the Code or the
Regulations that the General Partner may elect in its sole discretion.
Allocations pursuant to this Section 8.8 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, Losses, other items, or distributions pursuant to any
provision in this Agreement.
ARTICLE IX
DISTRIBUTIONS
SECTION 9.1 Operating Cash Flow. As used in this Agreement,
"Operating Cash Flow" shall mean and be defined, for any fiscal period, as all
cash receipts of the Partnership from whatever source (but excluding Capital
Cash Flow and excluding the proceeds of any Capital Contributions to the
Partnership) during such 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, 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. Operating Cash Flow shall be
distributed to or for the benefit of the Partners of record as of the applicable
record date not less frequently than quarterly, and shall be distributed pro
rata among the Partners based on the number of Units held.
SECTION 9.2 Capital Cash Flow. As used in this Agreement,
"Capital Cash Flow" shall mean and be defined as collectively (a) gross proceeds
realized in connection with
48
the sale of any assets of the Partnership, (b) gross financing or refinancing
proceeds, (c) gross condemnation proceeds (excluding condemnation proceeds
applied to restoration of remaining property), (d) gross insurance proceeds
(excluding rental insurance proceeds or insurance proceeds applied to
restoration of property), (e) return from an Operating Company of capital
contributed or advanced to such Operating Company by the Partnership, and (f)
distributions by an Operating Company of capital contributed or advanced to such
Operating Company, 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 then due and owing. Subject to Section 9.3, Capital
Cash Flow shall be distributed to or for the benefit of the Partners of record
as of the applicable record date not less frequently than quarterly and shall be
distributed pro rata among those Partners based on the number of Units held.
Notwithstanding the foregoing, the General Partner reserves the right to
pro-rate distributions of Capital Cash Flow to incoming Limited Partners who
were admitted during the applicable period (but excluding any incoming Partners
who received Units from an existing Limited Partner) and who held Units as of
the applicable record date but held such Units for less than the entire period
with respect to which the Capital Cash Flow distribution is to be paid, based on
the number of days such Units were outstanding during the applicable period, or
any other method of pro-ration deemed equitable by the General Partner and, in
such event, the amount of the distribution payable to all other Partners shall
be adjusted accordingly.
SECTION 9.3 Reinvestment of Capital Cash Flow. The General
Partner may, in its discretion, apply all or part of Capital Cash Flow to
provide funds to Operating Companies to make new Investments or make additional
investments in existing Investments.
SECTION 9.4 Right to Limit Distributions. The right of any
Partner to receive distributions of any nature pursuant to the terms of this
Agreement shall be subject to Section 9.3 and the terms of any agreement between
such Partner and the Partnership limiting, restricting or providing rights of
set-off with respect to such distributions.
SECTION 9.5 Limitations on Distribution Rights.
Notwithstanding any provision to the contrary contained in this Agreement, the
Partnership, and the General Partner on behalf of the Partnership, shall not be
required to make a distribution to a Partner on account of its interest in the
Partnership if such distribution would violate the Act or any other applicable
law. The Partnership will not make any distribution in kind without the approval
of the Limited Partners by a Majority LP Vote, except for distributions of
publicly-traded securities made with the Advisory Committee's approval pursuant
to Section 5.4 hereof.
ARTICLE X
TRANSFERS; WITHDRAWALS AND DEFAULTS
SECTION 10.1 Voluntary Transfer of General Partner Interest.
Without the consent of the Fund Investors by a Super Majority Fund Vote, the
General Partner shall not have the right to assign or otherwise transfer its
interest as the general partner of the Partnership (but may pledge its interest
in connection with any Partnership borrowing) other than to another ▇▇▇▇▇
Controlled Entity, and the General Partner shall not have the right to withdraw
from the
49
Partnership; provided that without the consent of the Limited Partners or any
other Fund Investors, the General Partner may be reconstituted as or converted
into a corporation, limited partnership or other form of entity (any such
reconstituted or converted entity being deemed to be the General Partner for all
purposes hereof) by merger, consolidation or otherwise, so long as (i) the
General Partner continues to be a ▇▇▇▇▇ Controlled Entity; (ii) such
reconstitution, conversion or transfer does not have adverse tax or legal
consequences for the Limited Partners or the Partnership; (iii) the General
Partner has notified the Limited Partners of such transaction at least thirty
days prior to the effective date of such transaction; and (iv) the Limited
Partners shall not have made a reasonable objection to such transaction prior to
the effective date of such transaction by a Majority LP Vote. No such assignment
or other transfer of all of the General Partner's interest as a general partner
of the Partnership shall be effective until its assignee or transferee has been
substituted in its place as general partner of the Partnership. Any such
substitute General Partner shall be admitted as a General Partner of the
Partnership upon its execution and delivery of this Agreement as General
Partner, and immediately thereafter the replaced General Partner shall withdraw
as a General Partner of the Partnership.
SECTION 10.2 Removal of General Partner.
(a) The General Partner may be removed by a Majority Fund
Vote if a Finding of Cause shall have been made and shall have become
effective and shall not have been withdrawn or rescinded in accordance
with the provisions of this Section 10.2(a). For purposes of this
Agreement, the term "Finding of Cause" means a written determination by
Fund Investors by a Majority Fund Vote that the General Partner has
committed willful malfeasance in the performance of any of its material
duties under this Agreement or has committed gross negligence, willful
misconduct or fraud which is the primary cause of a material adverse
effect on the Partnership and has continued without being substantially
cured for a period of at least thirty Business Days after the date upon
which written notice shall have been given to the General Partner by
Fund Investors pursuant to a Majority Fund Vote stating that they
believe such willful malfeasance, gross negligence, willful misconduct
or fraud has occurred and identifying with reasonable particularity the
actions constituting or resulting in such willful malfeasance, gross
negligence, willful misconduct or fraud; provided, however, that the
General Partner shall have the right to dispute any determination that
such willful malfeasance, gross negligence, willful misconduct or fraud
has occurred or is continuing or that such willful malfeasance, gross
negligence, willful misconduct or fraud is the primary cause of a
material adverse effect on the Partnership and, if the General Partner
does so, a Finding of Cause shall not become effective until the date
upon which the dispute with respect to such determination has been
resolved (whether by agreement between the General Partner and Fund
Investors by a Majority Fund Vote or as a result of a judgment or award
in any judicial proceeding). Any determination of or by the Fund
Investors, and the effectiveness, of any Finding of Cause may be
rescinded or withdrawn at any time by the Fund Investors by a Majority
Fund Vote.
(b) At any time after the Initial Investment Period, the
General Partner may be removed by a 75% Majority Fund Vote with or
without a Finding of Cause by causing the Partnership to redeem all
Units held by the General Partner and its Affiliates (including the
▇▇▇▇▇ Limited Partner) by issuance of a promissory note with a term of
not
50
more than three years with a principal amount equal to the Current Unit
Value of such Units and bearing interest at the Prime Rate.
(c) No removal of the General Partner pursuant to this
Section 10.2 shall be effective until a successor general partner has
been admitted to the Partnership in place of the General Partner. Upon
such admittance to the Partnership, such successor general partner will
be entitled to appoint members of the Management Board in substitution
of those appointed by the General Partner immediately prior to such
removal of the General Partner.
SECTION 10.3 Transfers of Units by ▇▇▇▇▇ Partners. Subject to
Section 10.2, each of the General Partner and the ▇▇▇▇▇ Limited Partner may
Transfer any Units held by it in accordance with the provisions of this
Agreement; provided that, unless otherwise approved by the Limited Partners
pursuant to a Super Majority LP Vote, no such Transfer shall be permitted that
would result in the ▇▇▇▇▇ Capital Requirement failing to be met.
SECTION 10.4 Transfers of Units by Limited Partners. Any
Limited Partner other than the ▇▇▇▇▇ Limited Partner may Transfer any Units held
by it at any time, subject only to the provisions of Section 10.5. Any Limited
Partner that Transfers all or any part of the Units held by it shall pay all
reasonable expenses, including attorneys' fees, incurred by the Partnership or
the General Partner in connection with such Transfer.
SECTION 10.5 Conditions to Transfer.
(a) No Transfer of any Units shall be made unless in the
opinion of responsible counsel (which may be counsel for the
Partnership), which opinion of counsel shall be reasonably satisfactory
to the General Partner and which opinion may be waived, in whole or in
part, in the sole and absolute discretion of the General Partner:
(i) such Transfer would not violate the
Securities Act or any state securities or "Blue Sky" laws or
the securities laws of any other jurisdiction applicable to
the Partnership or the Units to be assigned or transferred;
(ii) such Transfer would not cause the
Partnership to lose its status as a partnership for U.S.
federal income tax purposes or cause the Partnership to become
subject to the Investment Company Act;
(iii) such Transfer would not cause the
Partnership to be treated as a "publicly traded partnership"
within the meaning of Section 7704 of the Code and the
Regulations promulgated thereunder;
(iv) such Transfer would not cause (A) all or any
portion of the assets of the Partnership (1) to constitute
"plan assets" (under ERISA, the Code or the applicable
provisions of any Similar Law) of any existing or contemplated
investor, or (2) to be subject to the provisions of ERISA, the
Code or any applicable Similar Law, or (B) the General Partner
to become a fiduciary with respect to any existing or
contemplated investor, pursuant to ERISA or the applicable
provisions of any Similar Law, or otherwise; and
51
(v) such Transfer would not cause a termination
of the Partnership under Code Section 708.
(b) No Transfer of a Partnership Interest, in whole or in
part, may be made if, in the opinion of legal counsel to the
Partnership,
(i) such Transfer would result in the
Partnership's being treated as an association taxable as a
corporation; or
(ii) such Transfer would result in the
Partnership no longer qualifying for the Private Placement PTP
Exemption.
(c) If, and beginning with the first day of the first
taxable year in which, the Partnership no longer qualifies for the
Private Placement PTP Exemption, no Transfer of a Partnership Interest,
in whole or in part, may be made unless such Transfer constitutes a
Private Transfer.
(d) Any purported Transfer attempted in contravention of
any of the provisions of this Section 10.5 shall be void ab initio and
ineffectual and shall not be binding upon, or recognized by, the
General Partner or the Partnership. Prior to the consummation of any
Transfer by a Limited Partner, such Limited Partner shall deliver to
the General Partner such legal opinions, certificates and other
documents as the General Partner shall reasonably request in connection
with such Transfer.
(e) Redemptions of Units pursuant to Sections 3.8 or 3.9
shall not be considered Transfers for purposes of this Section 10.5.
SECTION 10.6 Admissions and Withdrawals Generally. Except as
expressly provided in this Agreement, no Partner shall have the right to
withdraw from the Partnership or to withdraw any part of its Capital Account and
no additional Partner may be admitted to the Partnership. Each new Partner shall
be admitted as a Partner upon the execution by or on behalf of it of an
agreement pursuant to which it becomes bound by the terms of this Agreement and
acceptance thereof by the General Partner. The names and addresses of all
Persons admitted as Partners and their status as General Partner or a Limited
Partner shall be maintained in the records of the Partnership.
SECTION 10.7 Required/Elective Withdrawals. The General
Partner may require a Limited Partner to withdraw from the Partnership if (i) in
the reasonable judgment of the General Partner based upon an opinion of counsel
to the Partnership, by virtue of that Limited Partner's Partnership Interest,
the Partnership or any Partner is reasonably likely to be subject to any
requirement to register under the Investment Company Act, or (ii) in the
reasonable judgment of the General Partner, a significant delay, extraordinary
expense or material adverse effect on the Partnership or any of its Affiliates,
any Fund Entity or any prospective investment is likely to result from the
retention by such Limited Partner of a Partnership Interest. Notice of any such
withdrawal shall be given to all Limited Partners as well as a copy of the
opinion of counsel referred to above in the case of a withdrawal pursuant to
clause (i) above. Withdrawals pursuant to this Section 10.7 will be effected by
the Partnership's redeeming the Units held by such Limited Partner at the
Current Unit Value, with the redemption
52
price being payable by a promissory note having a term of not more than three
years and bearing interest at the Prime Rate.
SECTION 10.8 Defaulting Limited Partner.
(a) Any Limited Partner that fails to make, when due, any
portion of the Capital Contributions required to be made by such
Limited Partner pursuant to this Agreement and the Subscription
Agreement to which such Limited Partner is a party may, in the
discretion of the General Partner, be charged an additional amount on
the unpaid balance of any such Capital Contribution at the Default Rate
from the date such balance was due and payable through the date full
payment for such balance is actually made, and to the extent such
additional amount is not otherwise paid such additional amount may be
deducted from any distribution otherwise payable to such Limited
Partner.
(b) If any Limited Partner fails to make, when due, any
portion of the Capital Contribution required to be contributed by such
Limited Partner pursuant to this Agreement and the Subscription
Agreement to which such Limited Partner is a party, then the
Partnership shall promptly provide written notice of such failure to
such Limited Partner. If such Limited Partner fails to make such
Capital Contribution within five Business Days after receipt of such
notice, then (i) such Limited Partner shall be deemed a "Defaulting
Limited Partner" and the following Sections 10.8(c) through (h) shall
apply.
(c) The General Partner shall have the right to
determine, in its sole discretion, that whenever the vote, consent or
decision of a Limited Partner or of the Partners is required or
permitted pursuant to this Agreement, except as required by the Act,
any Defaulting Limited Partner shall not be entitled to participate in
such vote or consent, or to make such decision, and such vote, consent
or decision shall be tabulated or made as if such Defaulting Limited
Partner were not a Partner.
(d) The General Partner shall have the right in its sole
discretion to either (i)(A) determine that a Defaulting Limited Partner
shall forfeit to the non-defaulting Partners as recompense for damages
suffered, and the Partnership shall withhold (for the account of such
other Partners), all distributions of Operating Cash Flow and Capital
Cash Flow and liquidating distributions that such Defaulting Limited
Partner would otherwise receive, and (B) effect a forfeiture by such
Limited Partner of 20% of its aggregate Partnership Interest (including
20% of its Capital Account balance); or (ii) upon delivery of written
notice to the Defaulting Limited Partner, cause the Defaulting Limited
Partner to transfer all of its interest in the Partnership to one or
more other Partners (or any other Person or Persons to the extent not
purchased by any Partner) selected by the General Partner in its sole
discretion, which have agreed to purchase such interest at a transfer
price equal to at least 80% of such Defaulting Limited Partner's
Capital Account balance.
(e) In the event that a Limited Partner defaults in
making all or any portion of a Capital Contribution to the Partnership,
the General Partner may require all of the non-
53
defaulting Partners to increase their Capital Contributions by an
aggregate amount equal to the Capital Contribution of the Defaulting
Limited Partner on which it defaulted; provided that no Limited Partner
will be required to contribute any amounts in excess of its Unfunded
Commitment without such Limited Partner's consent. If the General
Partner elects to require such increase, the General Partner shall
deliver to each non-defaulting Partner written notice of such default
as promptly as practicable after its occurrence and, thereafter, with
respect to each Investment, the General Partner shall as promptly as
practicable deliver to each such non-defaulting Partner a Capital Call
Notice in respect of the Capital Contribution which the Defaulting
Limited Partner failed to make.
Subject to the provisos set forth above in this Section 10.8(e), such
Capital Call Notice shall (i) call for a Capital Contribution by each
such non-defaulting Partner in an amount equal to the amount of such
non-defaulting Partner's pro rata share of such additional Capital
Contribution, based on the Unfunded Commitments of the Limited
Partners, and (ii) specify a Payment Date for such Capital
Contribution, which date shall be at least ten calendar days from the
date of delivery of such Capital Call Notice by the General Partner. If
any Limited Partner is not required to make a Capital Contribution in
accordance with this Section 10.8(e) because such Capital Contribution
would be in excess of such Limited Partner's Unfunded Commitment, then,
subject to the provisos set forth in this Section 10.8(e), the General
Partner shall send to each other Limited Partner which is not subject
to such constraint a Capital Call Notice providing the amount of any
additional Capital Contribution which such other Limited Partner shall
be required to make as a result of such excess not being funded by the
Limited Partner which is subject to such constraint, which amount shall
bear the same ratio to the aggregate of the additional amounts payable
by all such other non-defaulting Limited Partners as such other Limited
Partner's Unfunded Commitment bears to the Unfunded Commitments of all
such other non-defaulting Limited Partners. The provisions of this
Section 10.8(e) shall operate successively until either all Limited
Partners are subject to such constraint or the full amount of the
defaulted Capital Contribution of the Defaulting Limited Partner has
been provided for.
(f) No right, power or remedy conferred upon the General
Partner in this Section 10.8 shall be exclusive, and each such right,
power or remedy shall be cumulative and in addition to every other
right, power or remedy whether conferred in this Section 10.8 or now or
hereafter available at law or in equity or by statute or otherwise. No
course of dealing between the General Partner and any Defaulting
Limited Partner and no delay in exercising any right, power or remedy
conferred in this Section 10.8 or now or hereafter existing at law or
in equity or by statute or otherwise shall operate as a waiver or
otherwise prejudice any such right, power or remedy.
(g) Each Limited Partner acknowledges by its execution
hereof that it has been admitted to the Partnership in reliance upon
its agreements under this Agreement and in its Subscription Agreement,
that the General Partner and the Partnership may have no adequate
remedy at law for a breach of such agreements and that damages
resulting from a breach of such agreements may be impossible to
ascertain at the time hereof or of such breach.
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(h) For purposes of this Section 10.8, if any Defaulting
Limited Partner is any Entity the equity owners of which consist of two
or more unaffiliated investors, the General Partner may, in its sole
discretion, treat the owner of such entity that was responsible for
such default (and not such entity or any general partner, managing
member or other controlling person of such entity) as the Defaulting
Limited Partner and may invoke the rights, powers and remedies
specified herein separately with respect to such owner, and hold such
owner solely responsible for such default.
ARTICLE XI
PARTNERSHIP ADMINISTRATION
SECTION 11.1 Books and Records. The General Partner shall keep
or cause to be kept complete and appropriate records and books of account for
the Partnership. Except as otherwise expressly provided herein, such books and
records shall be maintained on a basis which allows the proper preparation of
the Partnership's financial statements and tax returns. The books and records
shall be maintained at the principal office of the Partnership. Any Limited
Partner or its duly authorized representatives shall be permitted to inspect the
books and records of the Partnership for any proper purpose and make copies
thereof consistent with reasonable confidentiality restrictions established by
the General Partner at any reasonable time during normal business hours.
SECTION 11.2 Partnership Auditor. The General Partner shall
cause the books and records of the Partnership to be audited as of the end of
each Fiscal Year by an independent certified public accounting firm of national
or international standing and reputation equivalent to the existing "big four"
firms selected by the General Partner (the firm so selected, the "Partnership
Auditor"). The initial Partnership Auditor shall be Ernst & Young LLP.
SECTION 11.3 Filing of Tax Returns. The General Partner shall
prepare and file, or cause the accountants of the Partnership to prepare and
file, a U.S. federal information tax return in compliance with Section 6031 of
the Code and any required state, local and foreign income tax and information
returns for each tax year of the Partnership.
SECTION 11.4 Tax Matters.
(a) The General Partner shall be designated on the
Partnership's annual U.S. federal information tax return as the "tax
matters partner" of the Partnership (the "Tax Matters Partner") as
provided in Section 6231(a)(7) of the Code. If the Partnership is the
subject of an income tax audit by any federal, state, local or foreign
authority, then to the extent the Partnership is treated as an entity
for purposes of the audit, including administrative settlement and
judicial review, the Tax Matters Partner shall be authorized to act
for, and its decision shall be final and binding upon, the Partnership
and each Partner. All expenses incurred in connection with any audit,
investigation, settlement or review shall be borne by the Partnership.
(b) The General Partner shall take such steps as are
necessary to ensure that the Partnership is taxed as a partnership
under the Code. Subject to the preceding
55
sentence, the General Partner shall have the exclusive right to make
any determination whether the Partnership shall make available
elections (including any election pursuant to Code Section 754 to
adjust the tax basis of Partnership assets) for federal, state, or
local tax purposes, and the General Partner shall be absolved from all
liability and other consequences from its making or failing to make any
such election. All decisions and other matters concerning the
computation and allocation or tax items and attributes which are not
otherwise specifically provided for by the terms of this Agreement
shall be determined by the General Partner, and the General Partner
shall be absolved from all liability and other consequences from any
such decisions which are made in good faith.
(c) The General Partner shall take all such actions as
are reasonably necessary for the Partnership to comply with any
withholding or comparable requirements under federal, state, local and
foreign law and shall remit any amounts withheld to, and file required
forms with, the applicable taxing jurisdictions. All amounts withheld
from distributions shall be treated as having been distributed to the
Partner with respect to whom the withholding was made. Any amounts that
are required to be withheld by the Partnership with respect to a
Partner which are in excess or in advance of distributions to such
Partnership shall be paid over by such Partner to the Partnership and
shall not reduce the Unfunded Commitment or increase the Funded
Commitment of such Partner. Each Partner agrees to furnish the
Partnership with such representations and forms as the General Partner
shall reasonably request to assist in complying with the Partnership's
withholding obligations. A Partner subject to withholding shall pay to
or reimburse the Partnership for taxes, related interest and penalties,
and all other costs and expenses incurred by the Partnership in
connection with such withholding obligation, except for interest,
penalties or costs (but not taxes) that are incurred as a result of the
gross negligence or willful misconduct of the Partnership or the
General Partner.
SECTION 11.5 Reports to Partners.
(a) Within forty-five days after the end of each Fiscal
Quarter other than the fourth Fiscal Quarter, and within ninety days
after the end of each Fiscal Year, the General Partner shall send to
each Person who was a Partner in the Partnership at any time during the
prior Fiscal Year:
(i) the following financial statements for the
Partnership prepared on an accrual basis and in accordance
with GAAP (provided that, for purposes of preparing these
statements, each Investment shall be valued at cost, unless
(1) if such Investment has been appraised since its
acquisition in accordance with Section 5.9, in which case the
Investment will be valued at its Current Market Value, or (2)
if in the reasonable judgment of the General Partner,
circumstances dictate that an Investment be valued on a
different basis than cost or Current Market Value, in which
case the Investment shall be valued on such basis as the
General Partner shall reasonably determine, and the General
Partner shall include in such statements an explanation of the
reason for such determination and the basis for the valuation
of such Investment):
(A) a balance sheet as of the end of
such period,
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(B) a statement of income or loss and a
statement of Partners' capital for such period, and
(C) a statement of changes in Partners'
equity;
(ii) a schedule of changes in Capital Account
balances by Partner;
(iii) a schedule and summary description of each
Investment owned by the Partnership as of the end of such
period; and
(iv) in the case of an annual report with respect
to any Fiscal Year, an opinion of the Partnership Auditor
based upon its audit of the financial statements referred to
in clause (i) above.
(b) Within ninety days after the end of each Fiscal Year
of the Partnership, the General Partner shall send to each Person who
was a Partner during such period a statement of cash flows of the
Partnership.
(c) Concurrently with the delivery of the audited
financial statements for each Fiscal Year pursuant to Section 11.5(a),
the General Partner shall prepare and mail, or cause the Partnership's
accountants to prepare and mail, to each Partner and, to the extent
necessary, to each former Partner (or such Partner's designated
representatives), a report setting forth in sufficient detail such
information relating to the Partnership and its activities as shall
enable such Partner or former Partner (or such Partner's designated
representatives) to prepare its respective federal, state, local and
foreign income tax returns in accordance with the laws, rules and
regulations then prevailing.
(d) With reasonable promptness, the General Partner will
deliver such other information available to the General Partner,
including financial statements and computations, as any Limited Partner
may from time to time reasonably request in order to comply with
regulatory requirements, including reporting requirements, to which
such Limited Partner is subject.
SECTION 11.6 Meetings of Partners.
(a) The General Partner shall hold an annual meeting of
Partners beginning in the first full calendar year following the end of
the Initial Offering Period. The General Partner shall give at least
forty-five days notice of the time and place of such meeting to each
Partner, which notice shall set out the agenda for such meeting.
(b) The General Partner may call a special meeting of the
Partnership by giving at least ten days notice of the time and place of
such meeting to each Partner, which notice shall set out the agenda for
such meeting.
(c) Any action required to be, or which may be, taken at
any meeting of the Partners may be taken in writing without a meeting
if consents thereto are given by the General Partner and Partners
having a number of Units not less than the amount that would be
necessary to take such action at a meeting; provided that a vote to
terminate the
57
Partnership pursuant to Section 12.2 may be held only at a meeting duly
called, and not by written consent in lieu thereof.
(d) A Partner may vote at any meeting either in person or
by a proxy which such Partner has duly executed in writing.
(e) The chairman of any special meeting shall be the
President or another Person affiliated with and designated by the
General Partner. A Person designated by the General Partner shall keep
written minutes of all of the proceedings and votes of any such
meeting.
(f) The General Partner may set in advance a record date
for determining the Partners entitled to notice of and to vote at any
meeting or entitled to express consent to any action in writing without
a meeting. No record date shall be less than ten nor more than sixty
days prior to the date of any meeting to which such record date relates
nor more than ten days after the date on which the General Partner sets
the record date for any action by written consent. If the General
Partner does not set a record date, the record date for a meeting of
Partners shall be the date of such meeting, and the record date for a
written consent of Partners shall be the date of the notice to the
Partners by which the General Partner requests such written consent.
(g) A quorum shall be present at any meeting of Partners
with respect to any matter to be voted on at such meeting, if Partners
holding voting power at least equal to that required to take action
with respect to such matter are present at such meeting. Except as
otherwise required by the Act, the Limited Partners may not require the
Partnership to take any action, and the consent of the Limited Partners
shall not be required for the Partnership to take any action, except to
the extent this Agreement requires the taking of an action approved by,
or prohibits the taking of any action unless approved by, a specified
LP Vote, Partner Vote or Fund Vote. An "LP Vote" is a vote taken among
all Limited Partners. A "Partner Vote" is a vote taken among all
Partners. A "Fund Vote" is a vote taken among all Fund Investors. A
"Majority LP Vote" means the affirmative vote of Limited Partners
holding more than fifty percent (50%) of the Units outstanding on the
record date set for an LP Vote. A "Super Majority LP Vote" means the
affirmative vote of Limited Partners holding sixty-six and two-thirds
percent (66 2/3%) or more of the Units outstanding on the record date
set for an LP Vote. A "75% Majority LP Vote" means the affirmative vote
of Limited Partners holding seventy-five percent (75%) or more of the
Units outstanding on the record date set for an LP Vote. A "Majority
Partner Vote" means the affirmative vote of Partners holding more than
fifty percent (50%) of the Units outstanding on the record date set for
a Partner Vote. A "Super Majority Partner Vote" means the affirmative
vote of Partners holding sixty-six and two-thirds percent (66 2/3%) or
more of the Units outstanding on the record date set for a Partner
Vote. A "75% Majority Partner Vote" means the affirmative vote of
Partners holding seventy-five percent (75%) or more of the Units
outstanding on the record date set for a Partner Vote.
(h) Each Partner entitled to vote on any matter which
under the terms of this Agreement requires an LP Vote or Partner Vote
shall have a number of votes equal to the
58
number of Units held by such Partner on the record date set for the
meeting or consent at or by which a vote is to be held. Any Feeder
Entity may vote for and/or against any matter presented to the Partners
for a vote in such manner and proportions as may be provided for in the
constituent documents of such Feeder Entity, as applicable. Following
the First Third Party Closing, the General Partner and any Partner that
is an Affiliate of the General Partner (including the ▇▇▇▇▇ Limited
Partner) shall be deemed to have voted and/or abstained with respect to
any matter put to a vote of Partners in the same manner and proportions
as the Units of the other Partners are voted and/or abstained on such
matter.
(i) The General Partner may, in its discretion, grant to
any Fund Investor which is not a Partner the right to have a non-voting
observer attend each meeting of the Partners. The General Partner shall
provide to any such observer notice of the time and place of any
meeting of the Partners, and of any written consent being solicited
from the Partner, in the same manner and at the same time as notice is
sent to the Partners. The General Partner shall also provide to any
such observer copies of all notices, reports, minutes, consents and
other documents at the time and in the manner as they are provided to
the Partners. Any observer who attends any meetings of the Partners
shall execute and comply with an agreement with the Partnership and the
General Partner containing such restrictions on the use and disclosure
of confidential information and other matters as the General Partner
may reasonably request.
SECTION 11.7 Meetings of Fund Investors. If this Agreement
requires any action be taken by or with the consent of Fund Investors by a Fund
Vote, such action may be taken only at a meeting of Fund Investors pursuant to a
written notice authorized by a Majority LP Vote to all Fund Investors, which
notice shall specify the time and place of such meeting (which shall be not less
than 30 Business Days after the date of such notice) and the purpose for which
such meeting is called. At any meeting of Fund Investors called pursuant to the
preceding sentence, each Fund Investor at such meeting, in person or by proxy,
that is not an Affiliate of the General Partner shall be entitled to vote at
such meeting on the matters specified in the notice by which such meeting was
called. A "Majority Fund Vote" means the affirmative vote of Fund Investors that
are not Affiliates of the General Partner holding direct or indirect equity
interests in Properties in which the Fund has an interest equal to more than 50%
of all equity interests held directly or indirectly by all Fund Investors that
are not Affiliates of the General Partner in such Properties. A "Super Majority
Fund Vote" means the affirmative vote of Fund Investors that are not Affiliates
of the General Partner holding direct or indirect equity interests in Properties
in which the Fund has an interest equal to sixty-six and two-thirds percent (66
2/3%) or more of all equity interests held directly or indirectly by all Fund
Investors that are not Affiliates of the General Partner in such Properties. A
"75% Majority Fund Vote" means the affirmative vote of Fund Investors that are
not Affiliates of the General Partner holding direct or indirect equity
interests in Properties in which the Fund has an interest equal to seventy-five
percent (75%) or more of all equity interests held directly or indirectly by all
Fund Investors that are not Affiliates of the General Partner in such
Properties. For purposes of this Section 11.7, each Partner shall be deemed to
hold an indirect equity interest in each Property in which the Partnership has
an indirect interest in an amount equal to the Partnership's indirect equity
interest in such Property multiplied by a fraction, the numerator of which is
the number of Units held by such Partner and the denominator of which is the
total number of Units outstanding.
59
ARTICLE XII
DISSOLUTION, TERMINATION AND WINDING UP
SECTION 12.1 Dissolution. The Partnership shall dissolve and
its affairs shall be wound up upon the earliest to occur of the following events
(each, a "Liquidating Event"):
(a) an event of withdrawal as defined in Section 17-402
of the Act (such event, an "Event of Withdrawal");
(b) there ceasing to be any Limited Partners, as set
forth in Section 17-801(4) of the Act (subject to the provisions
thereof);
(c) the entry of a decree of judicial dissolution under
Section 17-802 of the Act;
(d) the election of the General Partner, at any time
after the date on which all or substantially all of the assets of the
Partnership have been sold or otherwise disposed of; and
(e) after the Initial Investment Period, the Limited
Partners vote to terminate the Partnership in accordance with the
provisions of Section 12.2.
provided, however, that upon the occurrence of an Event of Withdrawal with
respect to the General Partner (the "Withdrawn General Partner"), the
Partnership may continue its operations if within ninety days after such Event
of Withdrawal the Limited Partners elect by Super Majority LP Vote to continue
the business of the Partnership and elect a new General Partner, effective as of
the date of withdrawal, before or within ninety days after the Event of
Withdrawal (in which event a Liquidating Event shall not be deemed to have
occurred).
SECTION 12.2 Termination of Partnership by Majority Fund Vote.
After the Initial Investment Period, any Limited Partner may propose that the
Partnership be terminated and its affairs wound up in accordance with this
Article 12 by delivering a written notice to the General Partner proposing that
such action be taken and setting forth the reasons for such proposal. Following
receipt of any such notice, the General Partner shall call a special meeting of
the Fund Investors in accordance with the provisions of Section 11.7, such
meeting to be held on a date not later than the ninetieth day following the
General Partner's receipt of the notice from the Limited Partner proposing such
action. A Majority Fund Vote to terminate the Partnership at a special meeting
called and held in accordance with the provisions of Section 11.7 and this
Section 12.2, shall be deemed a Liquidating Event, following which the
Partnership shall be wound up in accordance with Section 12.3.
SECTION 12.3 Winding up. Upon the occurrence of a Liquidating
Event, the Partnership shall proceed to wind up its affairs and liquidate its
property and assets as promptly as practicable, but in an orderly manner so as
not to involve undue sacrifice. The General Partner, or if there is no general
partner, a liquidator appointed by a Majority LP Vote, shall be the liquidator
to wind up the affairs of the Partnership and to manage the Partnership's assets
during the winding up. Following a Liquidating Event resulting from a Majority
Fund Vote to
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terminate the Partnership pursuant to Section 12.2, the General Partner shall
complete the winding up of the Partnership no later than the second anniversary
of the date of the special meeting of Fund Investors at which such vote
occurred.
SECTION 12.4 Liquidating Distributions. Proceeds from the
sales of the Partnership's assets pursuant to Section 12.3 shall be distributed
in one or more installments in the following order of priority:
(a) Such proceeds shall first be applied to the
satisfaction all creditors of the Partnership (including the payment of
expenses of the winding-up, liquidation and dissolution of the
Partnership), including Partners who are creditors of the Partnership,
to the extent otherwise permitted by law, either by the payment thereof
or the making of reasonable provision therefor (including the
establishment of reserves, in amounts established by the General
Partner or, if applicable, the liquidator); and
(b) The remaining proceeds, if any, plus any remaining
assets of the Partnership, shall be applied and distributed to the
Partners in accordance with the positive balances of the Partners'
Capital Accounts, as determined after taking into account all
adjustments to Capital Accounts for the Partnership taxable year during
which the liquidation occurs, by the end of such taxable year or, if
later, within ninety days after the date of such liquidation. For
purposes of the application of this Section 12.4 and determining
Capital Accounts on liquidation, all unrealized gains, losses and
accrued income and deductions of the Partnership shall be treated as
realized and recognized immediately before the date of distribution. If
a Limited Partner shall, upon the advice of counsel, determine that
there is a reasonable likelihood that any distribution in kind of an
asset would cause such Limited Partner to be in violation of any law,
regulation or governmental order, such Limited Partner and the General
Partner or the liquidator shall each use its best efforts to make
alternative arrangements for the sale or transfer into an escrow
account of any such distribution on mutually agreeable terms.
ARTICLE XIII
MISCELLANEOUS
SECTION 13.1 Waiver of Partition. Except as may be otherwise
required by law, each Partner hereby irrevocably waives any and all rights that
it may have to maintain an action for partition or similar action of any of the
Partnership's property.
SECTION 13.2 Power of Attorney. Each Limited Partner hereby
irrevocably constitutes and appoints the General Partner, with full power of
substitution, the true and lawful attorney-in-fact and agent of such Limited
Partner, to execute, acknowledge, verify, swear to, deliver, record and file, in
its or its assignee's name, place and stead, all in accordance with the terms of
this Agreement, all instruments, documents and certificates which may from time
to time be required by the laws of the United States of America, the State of
Delaware, any other jurisdiction in which the Partnership conducts or plans to
conduct its affairs, or any political subdivision or agency thereof to
effectuate, implement and continue the valid existence and
61
affairs of the Partnership, including, without limitation, the power and
authority to verify, swear to, acknowledge, deliver, record and file:
(a) all certificates and other instruments, including any
amendments to this Agreement or to the Certificate, which the General
Partner deems appropriate to form, qualify or continue the Partnership
as a limited partnership (or a partnership in which the limited
partners have limited liability) in the State of Delaware and all other
jurisdictions in which the Partnership conducts or plans to conduct its
affairs,
(b) any amendments to this Agreement or any other
agreement or instrument which the General Partner deems appropriate to
(i) effect the addition, substitution or removal of any Limited Partner
or General Partner pursuant to this Agreement or (ii) effect any other
amendment or modification to this Agreement, but only if such amendment
or modification is duly adopted in accordance with the terms hereof,
(c) all conveyances and other instruments which the
General Partner deems appropriate to reflect the dissolution and
termination of the Partnership pursuant to the terms hereof, including
the writing required by the Act to cancel the Certificate,
(d) all instruments relating to transfers of Partnership
Interests of Limited Partners or to the admission of any substitute
Limited Partner, and
(e) certificates of assumed name and such other
certificates and instruments as may be necessary under the fictitious
or assumed name statutes from time to time in effect in the State of
Delaware and all other jurisdictions in which the Partnership conducts
or plans to conduct its affairs, but only if such names are duly
approved in accordance with the terms of this Agreement.
Such attorney-in-fact and agent shall not, however, have the right, power or
authority to amend or modify this Agreement when acting in such capacities,
except to the extent authorized herein. This power of attorney shall not
terminate upon the bankruptcy, dissolution, disability or incompetence of the
General Partner. To the fullest extent permitted by law, the power of attorney
granted herein shall be deemed to be coupled with an interest, shall be
irrevocable, shall survive and not be affected by the dissolution, bankruptcy or
legal disability of the Limited Partner and shall extend to its successors and
assigns; and may be exercisable by such attorney-in-fact and agent for all
Limited Partners (or any of them) by listing all (or any) of such Limited
Partners required to execute any such instrument, and executing such instrument
acting as attorney-in-fact. Any Person dealing with the Partnership may
conclusively presume and rely upon the fact that any instrument referred to
above, executed by such attorney-in-fact and agent, is authorized, regular and
binding, without further inquiry. If required, each Limited Partner shall
execute and deliver to the General Partner within five days after the receipt of
a request therefor, such further designations, powers of attorney or other
instruments as the General Partner shall reasonably deem necessary for the
purposes hereof.
SECTION 13.3 Amendments.
(a) Except as required by law, this Agreement (including
the Exhibits and Schedules hereto) may be amended or supplemented by
written consent of the General
62
Partner and the Limited Partners by a Majority LP Vote; provided that
no such amendment shall (i) increase any Partner's Capital Commitment,
reduce its share of the Partnership's distributions, income and gains
or materially and adversely affect the rights granted to or liabilities
(including tax liabilities) of such Partner hereunder, without the
written consent of each Partner so affected, (ii) change the LP Vote,
Partner Vote or Fund Vote required hereunder (the "Required Vote") for
the taking of an action unless such amendment is approved by the
Required Vote for the subject of such proposed amendment, (iii) amend
this Section 13.3 or the Investment Guidelines without the consent of
each Partner, (iv) amend subsection (a), (d), (e) or (h) of Section 5.3
or Section 5.10 in a way that would materially and adversely affect SLR
without the consent of at least one SLR Designee or amend the first or
second sentence of Section 2.2 or this clause (iv) of this Section
13.3(a) without the consent of SLR. Notwithstanding the foregoing, this
Agreement may be amended by the General Partner without the consent of
any other Partner to (a) cure any ambiguity or correct or supplement
any provision hereof which is incomplete or inconsistent with any other
provision hereof or correct any printing, stenographic or clerical
error or omissions, provided that such amendment does not materially
adversely affect the interests of the Partners, (b) amend Sections 8.4
to 8.8 as provided therein, (c) in connection with a Subsequent
Closing, amend any provision of this Agreement, provided that such
amendment does not materially adversely affect the rights or
obligations of the existing Partners, and (d) make any amendment that
is not objected to in writing by any Partner within twenty Business
Days after notice of such amendment is given to all Partners.
(b) The General Partner shall have the right to amend
this Agreement without the approval of any other Partner to the extent
the General Partner reasonably determines, based upon written advice of
tax counsel to the Partnership, that the amendment is necessary to
provide assurance that the Partnership will not be treated as a
"publicly traded partnership," because it is entitled to "safe harbor"
treatment under Section 7704 of the Code and the regulations
promulgated thereunder; provided that (i) such amendment shall not
change the relative economic interests of the Partners, reduce any
Partner's share of distributions, or increase any Partner's Capital
Commitment or its liability hereunder, (ii) the General Partner
provides a copy of such written advice and amendment to the Limited
Partners at least twenty Business Days prior to the effective date of
any such amendment and the Partners shall not have made a reasonable
objection to such amendment prior to the effective date of such
amendment by a Majority Partner Vote.
(c) The General Partner shall have the right to amend
this Agreement as provided in Schedule 5.11 without the approval of any
other Partner in connection with the admission of a Non-Managing
General Partner.
SECTION 13.4 Confidentiality.
(a) Each Limited Partner agrees to keep confidential, and
not to make use of (other than for purposes reasonably related to its
interest in the Partnership or for purposes of filing such Limited
Partner's tax returns or for other routine matters required by law) or
disclose to any Person, any information or matter relating to the
Partnership
63
and its affairs and any information or matter related to any Investment
(other than disclosure to such Limited Partner's employees, agents,
advisors, or representatives responsible for matters relating to the
Partnership), including any information contained in any Capital Call
or any report distributed pursuant to Section 11.5; provided that a
Limited Partner may disclose any such information to the extent that
(i) such information is or becomes generally available to the public
through no act or omission of such Limited Partner, (ii) such
information otherwise is or becomes known to such Limited Partner other
than by disclosure by the Partnership or the General Partner, provided
that the source of such information is not bound by a confidentiality
agreement or other contractual, legal or fiduciary obligation of
confidentiality, or (iii) such Limited Partner is required by law to
disclose such information. Each Limited Partner shall cause its
employees, agents, advisors, or representatives to comply with the
provisions of this Section 13.4, and shall be liable to the Partnership
and the General Partner for any breach of this Section 13.4 by any such
Person.
(b) Notwithstanding anything herein to the contrary,
except as reasonably necessary to comply with applicable securities
laws, each Partner (and each employee, representative or other agent of
each Partner) may disclose to any and all persons without limitation of
any kind, any information with respect to the United States federal
income "tax treatment" and "tax structure" (in each case, within the
meaning of Treasury Regulation Section 1.6011-4) of the transactions
contemplated hereby and all materials of any kind (including opinions
or other tax analyses) that are provided to such Partners (or their
representatives) relating to such tax treatment and tax structure,
provided that with respect to any document or similar item that in
either case contains information concerning the tax treatment or tax
structure of the transaction as well as other information, this
subsection shall only apply to such portions of the document or similar
item that relate to the United States federal income tax treatment or
tax structure of the transactions contemplated hereby.
SECTION 13.5 Entire Agreement. This Agreement and the other
agreements referred to herein constitute the entire agreement among the Partners
with respect to the subject matter hereof and supersede any prior agreement or
understanding among or between them with respect to such subject matter;
provided that the Partnership or the General Partner, without any further act,
approval or vote of any Partner, may enter into side letters or other writings
with individual Limited Partners which have the effect of establishing rights
under, or altering or supplementing, the terms of, this Agreement. Any rights
established, or any terms of this Agreement altered or supplemented, in a side
letter with a Limited Partner shall govern with respect to such Limited Partner
notwithstanding any other provision of this Agreement. The representations and
warranties of the Limited Partners in, and the other provisions of, the
Subscription Agreements shall survive the execution and delivery of this
Agreement.
SECTION 13.6 Severability. Each provision of this Agreement
shall be considered severable and if for any reason any provision which is not
essential to the effectuation of the basic purposes of this Agreement is
determined by a court of competent jurisdiction to be invalid or unenforceable
and contrary to the Act or existing or future applicable law, such invalidity
shall not impair the operation of or affect those provisions of this Agreement
which are valid. In that case, this Agreement shall be construed so as to limit
any term or provision so as to
64
make it enforceable or valid within the requirements of any applicable law, and
in the event such term or provision cannot be so limited, this Agreement shall
be construed to omit such invalid or unenforceable provisions.
SECTION 13.7 Notices. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if (i) mailed, registered mail, first-class postage paid, (ii) sent
by overnight mail or courier, or (iii) delivered by hand, if to any Partner, at
such Partner's address, or to such Partner's facsimile number, set forth on
Schedule 2.1, and if to the Partnership, to the General Partner at the General
Partner's address, or to the General Partner's facsimile number, set forth on
Schedule 2.1, or to such other person or address as any Partner shall have last
designated by notice to the Partnership, and in the case of a change in address
by the General Partner, by notice to the Limited Partners. Any notice shall be
deemed to have been duly given if personally delivered or sent by the mails or
courier or by electronic mail or facsimile confirmed by letter and will be
deemed received, unless earlier received, (i) if sent by certified or registered
mail, return receipt requested, when actually received, (ii) if sent by
overnight mail or courier, when actually received, and (iii) if delivered by
hand, on the date of receipt.
SECTION 13.8 Governing Law. This Agreement shall be governed
by and construed in accordance with the laws of the State of Delaware. In
particular, the Partnership is formed pursuant to the Act, and the rights and
liabilities of the Partners shall be as provided therein, except as herein
otherwise expressly provided.
SECTION 13.9 Successors and Assigns. Except with respect to
the rights of Indemnified Parties hereunder, none of the provisions of this
Agreement shall be for the benefit of or enforceable by the creditors (other
than a lender pursuant to the terms of any agreement governing or securing
Indebtedness to which such lender and the Partnership are parties) of the
Partnership and this Agreement shall be binding upon and inure to the benefit of
the Partners and their legal representatives, heirs, successors and permitted
assigns.
SECTION 13.10 Headings. The Article and Section headings in
this Agreement are for convenience of reference only, and shall not be deemed to
alter or affect the meaning or interpretation of any provisions hereof.
SECTION 13.11 Counterparts. This Agreement may be executed in
one or more counterparts, each of which shall be deemed an original, but all of
which, when taken together, shall constitute one and the same instrument.
SECTION 13.12 Third Party Beneficiary.
SLR shall be a third party beneficiary under this Agreement as to all rights
granted to SLR hereunder. The rights granted to SLR in this Agreement are a
material inducement to Sumitomo in its agreement to convey the Initial Asset
Group to the Partnership, SLR is relying upon such rights, and SLR shall have
the right, without limitation of any other rights it may have as a third party
beneficiary of this Agreement, to seek enforcement of such rights in its own
name in accordance with the terms of this Agreement and the Act.
[Signature Pages Follow]
65
IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed and delivered as of the date first set forth above.
GENERAL PARTNER:
HINES US CORE OFFICE CAPITAL LLC
By: ▇▇▇▇▇ Interests Limited Partnership
By: ▇▇▇▇▇ Holdings, Inc.
By:____________________________
Name:
Title:
LIMITED PARTNERS:
HINES US CORE OFFICE CAPITAL
ASSOCIATES II LIMITED PARTNERSHIP
By: ▇▇▇▇▇ Interests Limited Partnership
By: ▇▇▇▇▇ Holdings, Inc.
By:____________________________
Name:
Title:
SCHEDULE 2.1
PARTNERS NAMES AND ADDRESSES
GENERAL PARTNER
Hines US Core Office Capital LLC
Notice Address: c/o Hines Interests Limited Partnership
▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
LIMITED PARTNERS
▇▇▇▇▇ US Core Office Capital Associates II Limited Partnership
Notice Address: c/o Hines Interests Limited Partnership
▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
SCHEDULE 2.7
APPROVED AGREEMENTS
1. Assignment and Assumption Agreement, dated as of August 19, 2003, by which
the Partnership assumed certain obligations under the Amended and Restated
Master Agreement, dated as of March 31, 2003, among HILP, Hines US Core
Office Properties LP and SLR for the creation of Hines U.S. Core Office
Fund, as modified by two letter agreements dated March 31, 2003, and an
extension letter agreement dated June 26, 2003, and as amended by the
amendment thereto dated July 22, 2003, as supplemented and amended by the
letter agreement, dated as of July 22, 2003, among HILP, Hines US Core
Office Properties LP and SLR and by the letter agreement dated as of the
date hereof among the parties thereto.
2. Organization Agreement, dated as of August 19, 2003, among General Motors
Investment Management Corporation, a New York corporation, First Plaza
Group Trust, a New York trust, GMAM Core Plus II-NYC-DC, LLC, a Delaware
limited liability company, [--], ▇▇▇▇▇ Interests Limited Partnership, a
Delaware limited partnership, Hines US Core Office Capital Associates III
Limited Partnership, a Texas limited partnership, Hines-Sumisei U.S. Core
Office Fund, L.P., a Delaware limited partnership and Hines-Sumisei NY Core
Office Trust, a Maryland real estate investment trust.
3. Shareholders Agreement (as defined in the Organization Agreement)
4. Investor Rights Agreement (as defined in the Organization Agreement)
SCHEDULE 3.1
INITIAL CAPITAL CONTRIBUTIONS AND ADVANCES BY
GENERAL PARTNER AND HINES LIMITED PARTNER
CAPITAL
PARTNER UNITS (#) CONTRIBUTION ADVANCE AGREED CAPITAL ACCOUNT
------- --------- ------------ ------- ----------------------
General Partner 0.01 $ 10 0 $ 10
Hines Limited Partner 0.99 $990 $44,052,714 $990
SCHEDULE 4.4
HINES INVESTMENT ALLOCATION PROCEDURE
If Hines becomes aware of investment opportunities which are permitted
investments for the Partnership and are not covered by clauses (a) through (d)
of Section 4.4, and which one or both of the fund managers of NOP and HSOV
wishes to pursue on behalf of its respective fund, Hines shall cause such
investment opportunities to be allocated as follows: (A) if the investment
opportunity is a suburban office real estate property, the expected price of
which is less than or equal to $65 million, such investment opportunity shall be
allocated on a rotating basis among the Partnership, NOP and HSOV or (B) if the
investment opportunity either is not a suburban real estate property or the
expected price of such investment opportunity is greater than $65 million, such
investment opportunity shall be allocated on a rotating basis between the
Partnership and NOP, in each case based on the chronological order in which such
opportunities arose (as determined in good faith by the Hines Investment
Allocation Committee).
The "Hines Investment Allocation Committee" is a committee of Hines executives
and advisors that is responsible for implementing the investment allocation
procedure described above.
SCHEDULE 5.1A
FUND INVESTORS
First Plaza Group Trust, a New York Trust
GMAM Core Plus II-NYC-DC, LLC, a Delaware limited liability company
[--]
Sumitomo Life Realty (N.Y.), Inc., a New York corporation. (so long as SLR holds
an equity interest in NY Trust)
SCHEDULE 5.1B
FUND ORGANIZATION CHART
(attached)
SCHEDULE 5.3
INITIAL MANAGEMENT BOARD
NAME: APPOINTED BY:
----- -------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ General Partner
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ General Partner
▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ General Partner
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ General Partner
▇▇▇▇▇ ▇. ▇▇▇▇ General Partner
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ SLR
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ SLR
SCHEDULE 5.5
INITIAL MANAGEMENT TEAM
OFFICE: NAME:
------- -----
President ▇▇▇▇▇ ▇. ▇▇▇▇
Senior Investment Manager ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Senior Asset Manager ▇▇▇▇▇▇ ▇▇▇▇▇
Controller ▇▇▇ ▇▇▇▇
SCHEDULE 5.11
NON-MANAGING GENERAL PARTNER PROVISIONS
If a Non-Managing General Partner is admitted as a general partner of the
Partnership as provided in Section 5.11, then the General Partner shall become
the Managing General Partner and shall amend this Agreement as follows:
1. All references in this Agreement to the "General Partner" shall be revised
to be references to the "Managing General Partner."
2. The Non-Managing General Partner shall be authorized and empowered, without
the prior consent of the General Partner, on behalf of and in the name of
the Partnership, or on its own behalf and in its own name, or through
agents as may be appropriate, subject to the limitations contained
elsewhere in this Agreement (including any approval or consent rights of
the Limited Partners and the Advisory Committee) to:
(a) remove and appoint any Property Manager or approve renewals,
amendments or modifications to any Property Services Agreement;
(b) remove and appoint any Investment Advisor that is an Affiliate of
Hines, and approve renewals, amendments or modifications to any
Advisory Agreement between the Partnership or any Operating Company,
on the one hand, and any Investment Advisor that is an Affiliate of
Hines, on the other;
(c) approve the sale of Investments to Hines or any Affiliate of Hines,
and the acquisition of Investments from Hines or any Affiliate of
Hines; and
(d) approve the merger or consolidation of the Partnership with any
Affiliate of Hines.
3. The approval of both the Managing General Partner and the Non-Managing
General Partner shall be required to:
(a) declare distributions to Partners in accordance with this Agreement;
(b) make any decision concerning the sale, transfer or disposition of any
Investment in any third-party transaction; provided, that the value of
such Investments is greater than 20% of the Gross Asset Value of the
Partnership's assets;
(c) approve the merger or consolidation of the Partnership with an
unrelated third party;
(d) make any amendments, revisions or modifications to Section 5.2 hereof
or any other provisions of this Agreement with respect to investment
policies or procedures; and
(e) acquire any Investment that does not meet the requirements of Section
5.2.
(f) make any amendment to the Partnership Agreement which, under the terms
of the Partnership Agreement, requires the consent of the Managing
General Partner and of Limited Partners by a Majority LP Vote or
higher vote.
4. The Non-Managing General Partner and its Affiliates, and the direct or
indirect members, managers, partners, shareholders, officers, directors,
employees, agents and legal representatives of the Non-Managing General
Partner and any such Affiliate shall be Indemnified Persons entitled to the
benefits under Sections 6.1 (Exculpation of the General Partner) and 6.2
(Indemnification of the General Partner) to the same extent, and subject to
the same conditions and limitations, as all other Indemnified Persons.
5. The Non-Managing General Partner shall be entitled to call meetings of
Partners to the same extent as the Managing General Partner.
6. The Non-Managing General Partner and Affiliates of the Non-Managing General
Partner shall be deemed not to be Affiliates of the General Partner, Hines
or the Partnership, and the General Partner, Hines and their respective
Affiliates shall be deemed not to be Affiliates of the Non-Managing General
Partner or any of its Affiliates.
7. The Non-Managing General Partner shall be deemed not to be a Fund Investor
for purposes of calculating the Hines Capital Requirement.
EXHIBIT A
PROPERTY SERVICES AGREEMENT FORM
(ATTACHED)