Management. (a) The Managing General Partner of the Partnership generally shall conduct, direct and manage all activities of the Partnership generally, and the Managing General Partner of each Series shall conduct, direct and manage all activities of the Series for which it serves as Managing General Partner. Except as otherwise expressly provided in this Agreement, (i) all management powers over the business and affairs of the Partnership generally shall be exclusively vested in the Managing General Partner of the Partnership generally, and no Limited Partner or other General Partner shall have any management power over the business and affairs of (or authority to bind) the Partnership generally and (ii) all management powers over the business and affairs of each Series shall be exclusively vested in the Managing General Partner of such Series, and no Limited Partner or other General Partner shall have any management power over the business and affairs of (or authority to bind) such Series. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or that are granted to a Managing General Partner under any other provision of this Agreement, each Managing General Partner, subject to any approval required by Section 7.4, Section 7.5 or any other provision of this Agreement, shall have full power and authority to do all things and on such terms as it determines to be necessary or appropriate to conduct the business of the Partnership generally or the applicable Series, as the case may be, to exercise all powers set forth in Section 2.5 and to effectuate the purposes set forth in Section 2.4, including the following: (i) the making of any expenditures, the lending or borrowing of money, the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtedness and the incurring of any other obligations; (ii) the making of regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership and each Series (other than in connection with the matters set forth in Section 9.3); (iii) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the applicable Series or the merger or other combination of the Partnership with or into another Person; (iv) the use of the assets of the applicable Series (including cash on hand) for any purpose consistent with the terms of this Agreement; (v) the negotiation, execution and performance of any contracts, conveyances or other instruments on behalf of the Partnership generally or the applicable Series; (vi) the distribution of cash or property of the applicable Series; (vii) the maintenance of separate or joint insurance policies for the benefit of the Partnership, any Series, any Partners or any Indemnitees; (viii) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies or other relationships subject to the restrictions set forth in Section 2.4; (ix) the control of any matters affecting the rights and obligations of the Partnership or the applicable Series, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigation, arbitration or mediation and the incurring of legal expense and the settlement of claims and litigation; and (x) the indemnification of any Person against liabilities and contingencies to the extent permitted by law.
Appears in 3 contracts
Sources: Limited Partnership Agreement (Enbridge Energy Partners Lp), Limited Partnership Agreement (Enbridge Energy Partners Lp), Contribution Agreement (Enbridge Energy Partners Lp)
Management. (a) The Managing General Partner of the Partnership generally shall conduct, direct and manage all activities of the Partnership generally, and the Managing General Partner of each Series shall conduct, direct and manage all activities of the Series for which it serves as Managing General PartnerPartnership. Except as otherwise expressly provided in this Agreement, (i) all management powers over the business and affairs of the Partnership generally shall be exclusively vested in the Managing General Partner of the Partnership generallyPartner, and no Limited Partner or other General Partner Assignee shall have any management power over the business and affairs of (or authority to bind) the Partnership generally and (ii) all management powers over the business and affairs of each Series shall be exclusively vested in the Managing General Partner of such Series, and no Limited Partner or other General Partner shall have any management power over the business and affairs of (or authority to bind) such SeriesPartnership. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or that which are granted to a Managing the General Partner under any other provision of this Agreement, each Managing the General Partner, subject to any approval required by Section 7.4, Section 7.5 or any other provision of this Agreement7.3, shall have full power and authority to do all things and on such terms as it determines to be it, in its sole discretion, may deem necessary or appropriate to conduct the business of the Partnership generally or the applicable Series, as the case may bePartnership, to exercise all powers set forth in Section 2.5 and to effectuate the purposes set forth in Section 2.4, including the following:
(i) the making of any expenditures, the lending or borrowing of money, the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtedness, including indebtedness that is convertible into Partnership Securities, and the incurring of any other obligations;
(ii) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership and each Series (other than in connection with the matters set forth in Section 9.3)Partnership;
(iii) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the applicable Series Partnership or the merger or other combination of the Partnership with or into another PersonPerson (the matters described in this clause (iii) being subject, however, to any prior approval that may be required by Section 7.3);
(iv) the use of the assets of the applicable Series Partnership (including cash on hand) for any purpose consistent with the terms of this Agreement, including the financing of the conduct of the operations of the Partnership Group; subject to Section 7.6(a), the lending of funds to other Persons (including other Group Members), the repayment or guarantee of obligations of the Partnership Group and the making of capital contributions to any member of the Partnership Group;
(v) the negotiation, execution and performance of any contracts, conveyances or other instruments on behalf (including instruments that limit the liability of the Partnership generally under contractual arrangements to all or particular assets of the applicable SeriesPartnership, with the other party to the contract to have no recourse against the General Partner or its assets other than its interest in the Partnership, even if same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case);
(vi) the distribution of cash or property of the applicable SeriesPartnership cash;
(vii) the selection and dismissal of employees (including employees having titles such as "president," "vice president," "secretary" and "treasurer") and agents, outside attorneys, accountants, consultants and contractors and the determination of their compensation and other terms of employment or hiring;
(viii) the maintenance of separate or joint such insurance policies for the benefit of the Partnership, any Series, any Partnership Group and the Partners as it deems necessary or any Indemniteesappropriate;
(viiiix) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further other limited or general partnerships, joint ventures, corporations, limited liability companies or other relationships (including the acquisition of interests in, and the contributions of property to, any Group Member from time to time) subject to the restrictions set forth in Section 2.4;
(ixx) the control of any matters affecting the rights and obligations of the Partnership or the applicable SeriesPartnership, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigation, arbitration or mediation litigation and the incurring of legal expense and the settlement of claims and litigation; and;
(xxi) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.8);
(xiii) unless restricted or prohibited by Section 5.7, the purchase, sale or other acquisition or disposition of Partnership Securities, or the issuance of additional options, rights, warrants and appreciation rights relating to Partnership Securities; and
(xiv) the undertaking of any action in connection with the Partnership's participation in the Operating Partnership or any other subsidiary of the Partnership as a member or partner.
(b) Notwithstanding any other provision of this Agreement, the Operating Partnership Agreement, the Delaware Act or any applicable law, rule or regulation, each of the Partners and the Assignees and each other Person who may acquire an interest in Partnership Securities hereby (i) approves, ratifies and confirms the execution, delivery and performance by the parties thereto of the Operating Partnership Agreement, the Omnibus Agreement, the Contribution Agreement, the Distribution Agreement, and the Purchase Contract dated _________, 2004 between Penn Octane Corporation and the Operating Partnership and the other agreements described in or filed as exhibits to the Registration Statement that are related to the transactions contemplated by the Registration Statement; (ii) agrees that the General Partner (on its own or through any officer of the Partnership) is authorized to execute, deliver and perform the agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership without any further act, approval or vote of the Partners or the Assignees or the other Persons who may acquire an interest in Partnership Securities; and (iii) agrees that the execution, delivery or performance by the General Partner, any Group Member or any Affiliate of any of them, of this Agreement or any agreement authorized or permitted under this Agreement (including the exercise by the General Partner or any Affiliate of the General Partner of the rights accorded pursuant to Article XV), shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement (or any other agreements) or of any duty stated or implied by law or equity.
Appears in 3 contracts
Sources: Limited Partnership Agreement (Rio Vista Energy Partners Lp), Limited Partnership Agreement (Rio Vista Energy Partners Lp), Limited Partnership Agreement (Rio Vista Energy Partners Lp)
Management. (a) The Managing General Partner of the Partnership generally shall conduct, direct and manage all activities of the Partnership generally, and the Managing General Partner of each Series shall conduct, direct and manage all activities of the Series for which it serves as Managing General Partner. A. Except as otherwise expressly provided in this Agreement, (i) all management powers over the business and affairs of the Partnership generally are and shall be exclusively vested in the Managing General Partner of the Partnership generallyPartner, and no Limited Partner or other General Partner shall have any right to participate in or exercise control or management power over the business and affairs of (or authority to bind) the Partnership generally and (ii) all management powers over the business and affairs of each Series shall be exclusively vested in the Managing Partnership. The General Partner may not be removed by the Limited Partners with or without cause, except with the consent of such Series, and no Limited Partner or other the General Partner shall have any management power over the business and affairs of (or authority to bind) such SeriesPartner. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or that which are granted to a Managing the General Partner under any other provision of this Agreement, each Managing the General Partner, subject to any approval required by the other provisions hereof including Section 7.4, 7.3 and Section 7.5 or any other provision of this Agreement11.2, shall have full power and authority to do all things and on such terms as it determines to be deemed necessary or appropriate desirable by it to conduct the business of the Partnership generally or the applicable Series, as the case may bePartnership, to exercise all powers set forth in Section 2.5 3.2 and to effectuate the purposes set forth in Section 2.43.1 (subject to the proviso in Section 3.2), including the followingincluding, without limitation:
(i1) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money to permit the Partnership to make distributions to its Partners in such amounts as will permit the Company (so long as the Company has determined to qualify as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Section 4981 of the Code) and to make distributions to its stockholders sufficient to permit the Company to maintain REIT status), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtedness (including the securing of same by deed, mortgage, deed of trust or other lien or encumbrance on the Partnership’s assets) and the incurring of any other obligationsobligations it deems necessary for the conduct of the activities of the Partnership;
(ii2) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership, the registration of any Class of securities of the Partnership under Exchange Act and each Series (other than in connection with the matters set forth in Section 9.3)listing of any debt securities of the Partnership on any exchange;
(iii3) subject to Section 11.2, the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the applicable Series Partnership (including the exercise or grant of any conversion, option, privilege, or subscription right or other right available in connection with any assets at any time held by the Partnership) or the merger or other combination of the Partnership with or into another Personentity on such terms as the General Partner deems proper (all of the foregoing subject to any prior approval only to the extent required by Section 7.3);
(iv4) the acquisition, disposition, mortgage, pledge, encumbrance or hypothecation of any or all of the assets of the Partnership, and the use of the assets of the applicable Series Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms the General Partner deems proper, including, without limitation, the financing of the conduct of the operations of the Company, the Partnership or any Subsidiary of the Company and/or the Partnership, the lending of funds to other Persons (including, without limitation, the Company or any Subsidiary of the Company and/or the Partnership) and the repayment of obligations of the Partnership and its Subsidiaries and any other Person in which it has an equity investment, and the making of capital contributions to its Subsidiaries;
(v5) the management, operation, leasing, landscaping, repair, alteration, demolition or improvement of any real property or improvements owned by the Partnership or any Subsidiary of the Partnership or any Person in which the Partnership has made a direct or indirect equity investment;
(6) the negotiation, execution execution, and performance of any contracts, leases, conveyances or other instruments on behalf that the General Partner considers useful or necessary to the conduct of the Partnership generally Partnership’s operations or the applicable Seriesimplementation of the General Partner’s powers under this Agreement, including contracting with contractors, developers, consultants, accountants, legal counsel, other professional advisors and other agents and the payment of their expenses and compensation out of the Partnership’s assets;
(vi7) the distribution of Partnership cash or property of the applicable Seriesother Partnership assets in accordance with this Agreement;
(vii8) the holding, managing, investing and reinvesting of cash and other assets of the Partnership;
(9) the collection and receipt of revenues and income of the Partnership;
(10) the establishment of one or more divisions of the Partnership, the selection and dismissal of employees of the Partnership (including, without limitation, employees having titles such as “president,” “vice president,” “secretary” and “treasurer” of the Partnership), and agents, outside attorneys, accountants, consultants and contractors of the Partnership, and the determination of their compensation and other terms of employment or hiring including waivers of conflicts of interest and the payment of their expenses and compensation out of the Partnership’s assets;
(11) the maintenance of separate or joint such insurance policies for the benefit of the Partnership, any Series, any the Partners and directors and officers thereof as it deems necessary or any Indemniteesappropriate;
(viii12) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies corporations or other relationships subject that it deems desirable (including, without limitation, the acquisition of interests in, and the contributions of property to, any Subsidiary and any other Person in which it has an equity investment from time to time); provided, that, as long as the restrictions set forth Company has determined to continue to qualify as a REIT, the Partnership may not engage in Section 2.4any such formation, acquisition or contribution that would cause the Company to fail to qualify as a REIT;
(ix13) the control of any matters affecting the rights and obligations of the Partnership or the applicable SeriesPartnership, including the bringing and defending settlement, compromise, submission to arbitration or any other form of actions at law dispute resolution, or in equity and otherwise engaging in abandonment of, any claim, cause of action, liability, debt or damages, due or owing to or from the conduct Partnership, the commencement or defense of litigationsuits, legal proceedings, administrative proceedings, arbitration or mediation other forms of dispute resolution, and the representation of the Partnership in all suits or legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, the incurring of legal expense expense, and the settlement of claims and litigation; and
(x) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(14) the undertaking of any action in connection with the Partnership’s direct or indirect investment in any Subsidiary or any other Person (including, without limitation, the contribution or loan of funds by the Partnership to such Persons, incurring indebtedness on behalf of, or guarantying the obligations of, any such Persons);
(15) the determination of the fair market value of any Partnership property distributed in kind using such reasonable method of valuation as the General Partner may adopt;
(16) the exercise, directly or indirectly, through any attorney-in-fact acting under a general or limited power of attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(17) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(18) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest pursuant to contractual or other arrangements with such Person;
(19) the making, execution and delivery of any and all deeds, leases, notes, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate, in the judgment of the General Partner, for the accomplishment of any of the powers of the General Partner enumerated in this Agreement;
(20) the maintenance of the Partnership’s books and records;
(21) the issuance of additional Partnership Units of any Class, as appropriate and in the General Partner’s sole and absolute discretion, in connection with capital contributions by Additional Limited Partners and additional capital contributions by Partners pursuant to Article 4 hereof;
(22) the distribution of cash to acquire Partnership Units of any Class held by a Limited Partner in connection with a Limited Partner’s exercise of its Redemption Right under Section 8.5 hereof;
(23) the amendment and restatement of Exhibit A hereto to reflect at all times the capital contributions and Percentage Interests of the Partners as the same are adjusted from time to time to the extent necessary to reflect redemptions, Capital Contributions, the issuance of Partnership Units of any Class, the admission of any Additional Limited Partner or Substituted Limited Partner or otherwise, which amendment and restatement, notwithstanding anything in this Agreement to the contrary, shall not be deemed an amendment to this Agreement, as long as the matter or event being reflected in Exhibit A hereto otherwise is authorized by this Agreement;
(24) the taking of any and all acts and things necessary or prudent to ensure that the Partnership will not be classified as a “publicly traded partnership” for purposes of Section 7704 of the Code, including but not limited to imposing restrictions on transfers and restrictions on redemptions; and
(25) to take such other action, execute, acknowledge, swear to or deliver such other documents and instruments, and perform any and all other acts that the General Partner deems necessary or appropriate for the formation, continuation and conduct of the business and affairs of the Partnership (including, without limitation, all actions consistent with allowing the Company at all times to qualify as a REIT unless the Company voluntarily terminates its REIT status) and to possess and enjoy all the rights and powers of a general partner as provided by the Act.
B. Each of the Limited Partners agrees that the General Partner is authorized to execute, deliver and perform the above-mentioned agreements and transactions on behalf of the Partnership without any further act, approval or vote of the Partners, notwithstanding any other provision of this Agreement (except as provided in Section 7.3), the Act or any applicable law, rule or regulation, to the fullest extent permitted under the Act or other applicable law, rule or regulation. The execution, delivery or performance by the General Partner or the Partnership of any agreement authorized or permitted under this Agreement shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement or of any duty stated or implied by law or equity.
C. At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain working capital and other reserves in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
D. At all times from and after the date hereof, the General Partner may cause the Partnership to obtain and maintain (i) casualty, liability and other insurance on the properties of the Partnership, (ii) liability insurance for the Indemnities hereunder and (iii) such other insurance as the General Partner, in its sole and absolute discretion, determines to be necessary.
E. In exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner (including the General Partner) of any action taken (or not taken) by it. The General Partner and the Partnership shall not have liability to a Limited Partner under any circumstances as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner pursuant to its authority under this Agreement.
Appears in 3 contracts
Sources: Limited Partnership Agreement (Cole Real Estate Income Strategy (Daily Nav), Inc.), Limited Partnership Agreement (Cole Real Estate Income Strategy (Daily Nav), Inc.), Limited Partnership Agreement (Cole Real Estate Income Strategy (Daily Nav), Inc.)
Management. (a) The Managing General Partner of the Partnership generally shall conduct, direct and manage all activities of the Partnership generally, and the Managing General Partner of each Series shall conduct, direct and manage all activities of the Series for which it serves as Managing General Partner. Except as otherwise expressly provided in this Agreement, (i) all management powers over the business and affairs of the Partnership generally are and shall be exclusively vested in the Managing General Partner of the Partnership generallyPartner, and no Limited Partner or other General Partner shall have any right to participate in or exercise control or management power over the business and affairs of (or authority to bind) the Partnership generally and (ii) all management powers over the business and affairs of each Series shall be exclusively vested in the Managing Partnership. The General Partner may not be removed by the Partners with or without cause, except with the Consent of such Series, and no Limited Partner or other the General Partner shall have any management power over the business and affairs of (or authority to bind) such SeriesPartner. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or that are granted to a Managing the General Partner under any other provision of this Agreement, each Managing the General Partner, subject to any approval required by the other provisions hereof including Section 7.4, Section 7.5 or any other provision of this Agreement7.3, shall have full power and authority to do all things and on such terms as it determines to be deemed necessary or appropriate desirable by it to conduct the business of the Partnership generally or the applicable Series, as the case may bePartnership, to exercise all powers set forth in Section 2.5 3.2 hereof and to effectuate the purposes set forth in Section 2.43.1 hereof, including the followingincluding, without limitation:
(i) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money or selling assets to permit the Partnership to make distributions to its Partners in such amounts as will permit the Company (so long as the Company qualifies as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Code Section 4981) and to make distributions to its stockholders sufficient to permit the Company to maintain REIT status or otherwise to satisfy the REIT Requirements), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtedness (including the securing of same by deed to secure debt, mortgage, deed of trust or other lien or encumbrance on the Partnership’s assets) and the incurring of any other obligationsobligations that it deems necessary for the conduct of the activities of the Partnership;
(ii) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership and each Series (other than in connection with the matters set forth in Section 9.3)Partnership;
(iii) the acquisition, dispositionsale, mortgagetransfer, pledgeexchange or other disposition of any, encumbrance, hypothecation all or exchange of any or substantially all of the assets of the applicable Series Partnership (including, but not limited to, the exercise or grant of any conversion, option, privilege or subscription right or any other right available in connection with any assets at any time held by the Partnership) or the merger merger, consolidation, reorganization or other combination or conversion of the Partnership with or into another Personentity;
(iv) the mortgage, pledge, encumbrance or hypothecation of any assets of the Partnership, the use of the assets of the applicable Series Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms that it sees fit, including, without limitation, the financing of the operations and activities of the General Partner, the Partnership or any of the Partnership’s Subsidiaries, the lending of funds to other Persons (including, without limitation, the Partnership’s Subsidiaries) and the repayment of obligations of the Partnership, its Subsidiaries and any other Person in which the Partnership has an equity investment, and the making of capital contributions to and equity investments in the Partnership’s Subsidiaries;
(v) the management, operation, leasing, landscaping, repair, alteration, demolition, replacement or improvement of any Property, including, without limitation, any Contributed Property, or other asset of the Partnership or any Subsidiary;
(vi) the negotiation, execution and performance of any contracts, leases, conveyances or other instruments on behalf that the General Partner considers useful or necessary to the conduct of the Partnership generally Partnership’s operations or the applicable Series;
(vi) the distribution of cash or property implementation of the applicable SeriesGeneral Partner’s powers under this Agreement, including contracting with contractors, developers, consultants, accountants, legal counsel, other professional advisors and other agents and the payment of their expenses and compensation out of the Partnership’s assets;
(vii) the distribution of Partnership cash or other Partnership assets in accordance with this Agreement, the holding, management, investment and reinvestment of cash and other assets of the Partnership, and the collection and receipt of revenues, rents and income of the Partnership;
(viii) the maintenance of separate or joint such insurance policies for the benefit of the PartnershipPartnership and the Partners as it deems necessary or appropriate, any Seriesincluding, any Partners or any Indemniteeswithout limitation, (i) casualty, liability and other insurance on the Properties of the Partnership and (ii) liability insurance for the Indemnitees hereunder;
(viiiix) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies companies, joint ventures or other relationships subject that it deems desirable (including, without limitation, the acquisition of interests in, and the contributions of property to, any Subsidiary and any other Person in which it has an equity investment from time to time); provided, however, that, as long as the restrictions set forth Company has determined to continue to qualify as a REIT, the General Partner may not engage in any such formation, acquisition or contribution that would cause the Company to fail to qualify as a REIT within the meaning of Code Section 2.4856(a);
(ixx) the control of any matters affecting the rights and obligations of the Partnership or the applicable SeriesPartnership, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigationsettlement, compromise, submission to arbitration or mediation any other form of dispute resolution, or abandonment, of any claim, cause of action, liability, debt or damages, due or owing to or from the Partnership, the commencement or defense of suits, legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, and the representation of the Partnership in all suits or legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, the incurring of legal expense expense, and the settlement of claims and litigation; and
(x) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xi) the undertaking of any action in connection with the Partnership’s direct or indirect investment in any Subsidiary or any other Person (including, without limitation, the contribution or loan of funds by the Partnership to such Persons);
(xii) except as otherwise specifically set forth in this Agreement, the determination of the fair market value of any Partnership property distributed in kind using such reasonable method of valuation as it may adopt; provided that such methods are otherwise consistent with the requirements of this Agreement;
(xiii) the enforcement of any rights against any Partner pursuant to representations, warranties, covenants and indemnities relating to such Partner’s contribution of property or assets to the Partnership;
(xiv) the exercise, directly or indirectly, through any attorney-in-fact acting under a general or limited power of attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(xv) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(xvi) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest, pursuant to contractual or other arrangements with such Person;
(xvii) the making, execution and delivery of any and all deeds, leases, notes, deeds to secure debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate in the judgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement;
(xviii) the issuance of additional Partnership Units, as appropriate and in the General Partner’s sole and absolute discretion, in connection with Capital Contributions by Additional Limited Partners and additional Capital Contributions by Partners pursuant to Article IV hereof;
(xix) the interpretation of the terms and provisions of this Agreement; and
(xx) an election to dissolve the Partnership pursuant to Section 13.1(c) hereof.
(b) Each of the Limited Partners agrees that, except as provided in Section 7.3 hereof, the General Partner is authorized to execute, deliver and perform the above-mentioned agreements and transactions on behalf of the Partnership without any further act, approval or vote of the Partners, notwithstanding any other provision of this Agreement, the Act or any applicable law, rule or regulation. The execution, delivery or performance by the General Partner or the Partnership of any agreement authorized or permitted under this Agreement shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement or of any duty stated or implied by law or equity.
(c) At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain working capital and other reserves in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
(d) In exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner (including the General Partner) of any action taken by it. The General Partner and the Partnership shall not have liability to a Limited Partner under any circumstances as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner pursuant to its authority under this Agreement.
Appears in 3 contracts
Sources: Limited Partnership Agreement (NorthStar Realty Europe Corp.), Agreement of Limited Partnership (NorthStar Realty Europe Corp.), Limited Partnership Agreement (Northstar Realty Finance Corp.)
Management. (a) The Managing General Partner of the Partnership generally shall conduct, direct and manage all activities of the Partnership generally, and the Managing General Partner of each Series shall conduct, direct and manage all activities of the Series for which it serves as Managing General PartnerPartnership. Except as otherwise expressly provided in this Agreement, (i) all management powers over the business and affairs of the Partnership generally shall be exclusively vested in the Managing General Partner of the Partnership generallyPartner, and no Limited Partner or other General Partner Assignee shall have any management power over the business and affairs of (or authority to bind) the Partnership generally and (ii) all management powers over the business and affairs of each Series shall be exclusively vested in the Managing General Partner of such Series, and no Limited Partner or other General Partner shall have any management power over the business and affairs of (or authority to bind) such SeriesPartnership. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or that which are granted to a Managing the General Partner under any other provision of this Agreement, each Managing the General Partner, subject to any approval required by Section 7.4, Section 7.5 or any other provision of this Agreement7.3, shall have full power and authority to do all things and on such terms as it determines to be it, in its sole discretion, may deem necessary or appropriate to conduct the business of the Partnership generally or the applicable Series, as the case may bePartnership, to exercise all powers set forth in Section 2.5 and to effectuate the purposes set forth in Section 2.4, including the following:
(i) the making of any expenditures, the lending or borrowing of money, the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtedness, including indebtedness that is convertible into Partnership Securities, and the incurring of any other obligations;
(ii) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership and each Series (other than in connection with the matters set forth in Section 9.3)Partnership;
(iii) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the applicable Series Partnership or the merger or other combination of the Partnership with or into another PersonPerson (the matters described in this clause (iii) being subject, however, to any prior approval that may be required by Section 7.3);
(iv) the use of the assets of the applicable Series Partnership (including cash on hand) for any purpose consistent with the terms of this Agreement, including the financing of the conduct of the operations of the Partnership Group; subject to Section 7.6(a), the lending of funds to other Persons (including other Group Members), the repayment or guarantee of obligations of the Partnership Group and the making of capital contributions to any member of the Partnership Group;
(v) the negotiation, execution and performance of any contracts, conveyances or other instruments on behalf (including instruments that limit the liability of the Partnership generally under contractual arrangements to all or particular assets of the applicable SeriesPartnership, with the other party to the contract to have no recourse against the General Partner or its assets other than its interest in the Partnership, even if same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case);
(vi) the distribution of cash or property of the applicable SeriesPartnership cash;
(vii) the selection and dismissal of employees (including employees having titles such as “president,” “vice president,” “secretary” and “treasurer”) and agents, outside attorneys, accountants, consultants and contractors and the determination of their compensation and other terms of employment or hiring;
(viii) the maintenance of separate or joint such insurance policies for the benefit of the Partnership, any Series, any Partnership Group and the Partners as it deems necessary or any Indemniteesappropriate;
(viiiix) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies or other relationships (including the acquisition of interests in, and the contributions of property to, any Group Member from time to time) subject to the restrictions set forth in Section 2.4;
(ixx) the control of any matters affecting the rights and obligations of the Partnership or the applicable SeriesPartnership, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigation, arbitration or mediation litigation and the incurring of legal expense and the settlement of claims and litigation; and;
(xxi) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.8);
(xiii) unless restricted or prohibited by Section 5.7, the purchase, sale or other acquisition or disposition of Partnership Securities, or the issuance of additional options, rights, warrants and appreciation rights relating to Partnership Securities; and
(xiv) the undertaking of any action in connection with the Partnership’s participation in any Group Member as a member or partner.
(b) Notwithstanding any other provision of this Agreement, the Operating Company Agreement, the Delaware Act or any applicable law, rule or regulation, each of the Partners and the Assignees and each other Person who may acquire an interest in Partnership Securities hereby (i) approves, ratifies and confirms the execution, delivery and performance by the parties thereto of the Operating Company Agreement, any other limited liability company or partnership agreement of any other Group Member, the Underwriting Agreement, the Omnibus Agreement, the Contribution Agreement and the other agreements described in or filed as exhibits to the Registration Statement that are related to the transactions contemplated by the Registration Statement; (ii) agrees that the General Partner (on its own or through any officer of the Partnership) is authorized to execute, deliver and perform the agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership without any further act, approval or vote of the Partners or the Assignees or the other Persons who may acquire an interest in Partnership Securities; and (iii) agrees that the execution, delivery or performance by the General Partner, any Group Member or any Affiliate of any of them, of this Agreement or any agreement authorized or permitted under this Agreement (including the exercise by the General Partner or any Affiliate of the General Partner of the rights accorded pursuant to Article XV), shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement (or any other agreements) or of any duty stated or implied by law or equity.
Appears in 3 contracts
Sources: Agreement of Limited Partnership (Natural Resource Partners Lp), Limited Partnership Agreement (Natural Resource Partners Lp), Contribution Agreement (Natural Resource Partners Lp)
Management. (a) The Managing General Partner of the Partnership generally shall conduct, direct and manage all activities of the Partnership generally, and the Managing General Partner of each Series shall conduct, direct and manage all activities of the Series for which it serves as Managing General Partner. Except as otherwise expressly provided in this Agreement, (i) all management powers over the business and affairs of the Partnership generally are and shall be exclusively vested in the Managing General Partner of the Partnership generallyPartner, and no Limited Partner or other General Partner shall have any right to participate in or exercise control or management power over the business and affairs of (or authority to bind) the Partnership generally and (ii) all management powers over the business and affairs of each Series shall be exclusively vested in the Managing Partnership. The General Partner may not be removed by the Partners with or without cause, except with the consent of such Series, and no Limited Partner or other the General Partner shall have any management power over the business and affairs of (or authority to bind) such SeriesPartner. In addition to the powers now or hereafter granted to a general partner of a limited partnership under applicable law or that are granted to a Managing the General Partner under any other provision of this Agreement, each Managing the General Partner, subject to any approval required by Section 7.4the other provisions hereof including, without limitation, Section 7.5 or any other provision of this Agreement7.03, shall have full power and authority to do all things and on such terms as it determines to be deemed necessary or appropriate desirable by it to conduct the business of the Partnership generally or the applicable Series, as the case may bePartnership, to exercise all powers set forth in Section 2.5 3.02 hereof and to effectuate the purposes set forth in Section 2.43.01 hereof, including the followingincluding, without limitation:
(i) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money or selling assets to permit the Partnership to make distributions in such amounts as will permit the General Partner (so long as the General Partner desires to maintain or restore its qualification as a REIT) to avoid the payment of any income or excise tax under the Code and to make distributions to its stockholders sufficient to permit the General Partner to maintain or restore REIT qualification or otherwise to satisfy the REIT Requirements), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtedness (including the securing of same by deed to secure debt, mortgage, deed of trust or other lien or encumbrance on the Partnership’s assets) and the incurring of any other obligationsobligations that it deems necessary for the conduct of the activities of the Partnership;
(ii) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership, the registration of any class of securities of the Partnership under the Exchange Act and each Series (other than in connection with the matters set forth in Section 9.3)listing of any debt securities of the Partnership on any exchange;
(iii) subject to Section 11.02 hereof, the acquisition, dispositionsale, mortgagelease, pledgetransfer, encumbranceexchange or other disposition of any, hypothecation all or exchange of any or substantially all of the assets of the applicable Series Partnership (including, but not limited to, the exercise or grant of any conversion, option, privilege or subscription right or any other right available in connection with any assets at any time held by the Partnership) or the merger merger, consolidation, reorganization or other combination of the Partnership with or into another Personentity;
(iv) the mortgage, pledge, encumbrance or hypothecation of any assets of the Partnership, the assignment of any assets of the Partnership in trust for creditors or on the promise of the assignee to pay the debts of the Partnership, the use of the assets of the applicable Series Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms that it sees fit, including, without limitation, the financing of the operations and activities of the General Partner, the Partnership or any of the Partnership’s Subsidiaries, the lending of funds to other Persons (including, without limitation, the Partnership’s Subsidiaries) and the repayment of obligations of the Partnership, its Subsidiaries and any other Person in which the Partnership has an equity investment, and the making of capital contributions to and equity investments in the Partnership’s Subsidiaries;
(v) the use of the assets of the Partnership (including, without limitation, cash on hand) for any purpose consistent with the terms of this Agreement and on any terms it sees fit, including, without limitation, the financing of the conduct of the operations of the General Partner, the Partnership or any of the Partnership’s Subsidiaries, the lending of funds to other Persons (including, without limitation, the General Partner and its Subsidiaries and the Partnership’s Subsidiaries) and the repayment of obligations of the Partnership and its Subsidiaries and any other Person in which the Partnership has an equity investment and the making of capital contributions to its Subsidiaries;
(vi) the management, operation, leasing, landscaping, repair, alteration, demolition, replacement or improvement of any Property, including, without limitation, any Contributed Property, or other asset of the Partnership or any Subsidiary, whether pursuant to a Services Agreement or otherwise;
(vii) the negotiation, execution and performance of any contracts, leases, conveyances or other instruments on behalf that the General Partner considers useful or necessary to the conduct of the Partnership generally Partnership’s operations or the applicable Seriesimplementation of the General Partner’s powers under this Agreement, including contracting with contractors, developers, consultants, government authorities, accountants, legal counsel, other professional advisors and other agents and the payment of their expenses and compensation out of the Partnership’s assets;
(viviii) the distribution of Partnership cash or property other Partnership assets in accordance with this Agreement, the holding, management, investment and reinvestment of cash and other assets of the applicable SeriesPartnership and the collection and receipt of revenues, rents and income of the Partnership;
(viiix) the maintenance of separate or joint such insurance policies (including, without limitation, directors and officers insurance) for the benefit of the PartnershipPartnership and the Partners (including, any Serieswithout limitation, any Partners the General Partner) as the General Partner deems necessary or any Indemniteesappropriate, including, without limitation, (i) casualty, liability and other insurance on the Properties and (ii) liability insurance for the Indemnitees hereunder;
(viiix) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies companies, joint ventures or other relationships subject that the General Partner deems desirable (including, without limitation, the acquisition of interests in, and the contributions of property to, any Subsidiary and any other Person in which it has an equity investment from time to time); provided, however, that as long as the restrictions set forth General Partner desires to maintain or restore its qualification as a REIT, the General Partner may not engage in Section 2.4any such formation, acquisition or contribution that would cause it to fail to qualify as a REIT;
(ixxi) the filing of applications, communicating and otherwise dealing with any and all governmental agencies having jurisdiction over, or in any way affecting, the Partnership’s assets or any other aspect of the Partnership business;
(xii) the control of any matters affecting the rights and obligations of the Partnership or the applicable SeriesPartnership, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigationsettlement, compromise, submission to arbitration or mediation any other form of dispute resolution, or abandonment, of any claim, cause of action, liability, debt or damages, due or owing to or from the Partnership, the commencement or defense of suits, legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, and the representation of the Partnership in all suits or legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, the incurring of legal expense expense, and the settlement of claims and litigation; and
(x) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xiii) the undertaking of any action in connection with the Partnership’s direct or indirect investment in any Subsidiary or any other Person (including, without limitation, the contribution or loan of funds by the Partnership to such Persons);
(xiv) except as otherwise specifically set forth in this Agreement, the determination of the fair market value of any Partnership property distributed in-kind using such reasonable method of valuation as it may adopt; provided, that such methods are otherwise consistent with the requirements of this Agreement;
(xv) the enforcement of any rights against any Partner pursuant to representations, warranties, covenants and indemnities relating to such Partner’s contribution of property or assets to the Partnership;
(xvi) the exercise, directly or indirectly, through any attorney-in-fact acting under a general or limited power-of-attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(xvii) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(xviii) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest, pursuant to contractual or other arrangements with such Person;
(xix) the making, execution and delivery of any and all deeds, leases, notes, deeds to secure Debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate in the judgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement;
(xx) the issuance of additional Partnership Units, as appropriate and in the General Partner’s sole and absolute discretion, in connection with Capital Contributions by Additional Limited Partners and additional Capital Contributions by Partners pursuant to Article IV hereof;
(xxi) the selection and dismissal of General Partner Employees (including, without limitation, employees having titles or offices such as president, vice president, secretary and treasurer), and agents, outside attorneys, accountants, consultants and contractors of the Partnership or the General Partner, the determination of their compensation and other terms of employment or hiring and the delegation to any such General Partner Employee the authority to conduct the business of the Partnership in accordance with the terms of this Agreement;
(xxii) the distribution of cash to acquire Partnership Units held by a Limited Partner in connection with a Limited Partner’s exercise of its Redemption right under Section 8.06 hereof;
(xxiii) the amendment and restatement of Exhibit A hereto to reflect accurately at all times the Capital Contributions and Percentage Interests of the Partners as the same are adjusted from time to time to the extent necessary to reflect redemptions, Capital Contributions, the issuance of Partnership Units, the admission of any Additional Limited Partner or any Substituted Limited Partner or otherwise, which amendment and restatement, notwithstanding anything in this Agreement to the contrary, shall not be deemed an amendment to this Agreement, as long as the matter or event being reflected in Exhibit A hereto otherwise is authorized by this Agreement;
(xxiv) the determination regarding whether a payment to a Partner who exercises its Redemption Right under Section 8.06 that is assumed by the General Partner will be paid in the form of the Cash Amount or the REIT Shares Amount, except as such determination may be limited by Section 8.06.
(xxv) the collection and receipt of revenues and income of the Partnership;
(xxvi) the registration of any class of securities of the Partnership under the Securities Act or the Exchange Act, and the listing of any debt securities of the Partnership on any exchange.
(xxvii) an election to dissolve the Partnership pursuant to Section 13.01(d) hereof; and
(xxviii) the taking of any action necessary or appropriate to enable the General Partner to qualify as a REIT (so long as the General Partner desires to maintain or restore its qualification as a REIT).
(b) Each of the Limited Partners agrees that, except as provided in Section 7.03 hereof, the General Partner is authorized to execute, deliver and perform the above-mentioned agreements and transactions on behalf of the Partnership without any further act, approval or vote of the Partners, notwithstanding any other provision of this Agreement, the Act or any applicable law, rule or regulation and, in the absence of any specific corporate action on the part of the General Partner to the contrary, the taking of any action or the execution of any such document or writing by an officer of the General Partner, in the name and on behalf of the General Partner, in its capacity as the general partner of the Partnership, shall conclusively evidence (1) the approval thereof by the General Partner, in its capacity as the general partner of the Partnership, (2) the General Partner’s determination that such action, document or writing is necessary or desirable to conduct the business and affairs of the Partnership, exercise the powers of the Partnership under this Agreement and the Act or effectuate the purposes of the Partnership, or any other determination by the General Partner required by this Agreement in connection with the taking of such action or execution of such document or writing, and (3) the authority of such officer with respect thereto.
(c) At all times from and after the date hereof, the General Partner may cause the Partnership to obtain and maintain (i) casualty, liability and other insurance on the Properties and (ii) liability insurance for the Indemnitees hereunder.
(d) At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain working capital and other reserves in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
(e) In exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner (including the General Partner) of any action taken (or not taken) by it. Except as may be provided in a separate written agreement between the Partnership and the Limited Partners, the General Partner and the Partnership shall not have liability to a Limited Partner under any circumstances as a result of a tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner pursuant to its authority under this Agreement provided, that the General Partner has acted in good faith and pursuant to its authority under this Agreement.
Appears in 3 contracts
Sources: Agreement of Limited Partnership, Limited Partnership Agreement (Empire State Realty Trust, Inc.), Limited Partnership Agreement (Empire State Realty Trust, Inc.)
Management. (a) The Managing General Partner of the Partnership generally shall conduct, direct and manage all activities of the Partnership generally, and the Managing General Partner of each Series shall conduct, direct and manage all activities of the Series for which it serves as Managing General PartnerPartnership. Except as otherwise expressly provided in this Agreement, (i) all management powers over the business and affairs of the Partnership generally shall be exclusively vested in the Managing General Partner of the Partnership generallyPartner, and no Limited Partner or other General Partner Assignee shall have any management power over the business and affairs of (or authority to bind) the Partnership generally and (ii) all management powers over the business and affairs of each Series shall be exclusively vested in the Managing General Partner of such Series, and no Limited Partner or other General Partner shall have any management power over the business and affairs of (or authority to bind) such SeriesPartnership. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or that which are granted to a Managing the General Partner under any other provision of this Agreement, each Managing the General Partner, subject to any approval required by Section 7.4, Section 7.5 or any other provision of this Agreement7.3, shall have full power and authority to do all things and on such terms as it determines to be it, in its sole discretion, may deem necessary or appropriate to conduct the business of the Partnership generally or the applicable Series, as the case may bePartnership, to exercise all powers set forth in Section 2.5 and to effectuate the purposes set forth in Section 2.4, including the following:
(i) the making of any expenditures, the lending or borrowing of money, the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtedness, including indebtedness that is convertible into Partnership Securities, and the incurring of any other obligations;
(ii) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership and each Series (other than in connection with the matters set forth in Section 9.3)Partnership;
(iii) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the applicable Series Partnership or the merger or other combination of the Partnership with or into another PersonPerson (the matters described in this clause (iii) being subject, however, to any prior approval that may be required by Section 7.3);
(iv) the use of the assets of the applicable Series Partnership (including cash on hand) for any purpose consistent with the terms of this Agreement, including the financing of the conduct of the operations of the Partnership Group; subject to Section 7.6(a), the lending of funds to other Persons (including other Group Members), the repayment or guarantee of obligations of the Partnership Group and the making of capital contributions to any member of the Partnership Group;
(v) the negotiation, execution and performance of any contracts, conveyances or other instruments on behalf (including instruments that limit the liability of the Partnership generally under contractual arrangements to all or particular assets of the applicable SeriesPartnership, with the other party to the contract to have no recourse against the General Partner or its assets other than its interest in the Partnership, even if same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case);
(vi) the distribution of cash or property of the applicable SeriesPartnership cash;
(vii) the selection and dismissal of employees (including employees having titles such as “president,” “vice president,” “secretary” and “treasurer”) and agents, outside attorneys, accountants, consultants and contractors and the determination of their compensation and other terms of employment or hiring;
(viii) the maintenance of separate or joint such insurance policies for the benefit of the Partnership, any Series, any Partnership Group and the Partners as it deems necessary or any Indemniteesappropriate;
(viiiix) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies or other relationships (including the acquisition of interests in, and the contributions of property to, any Group Member from time to time) subject to the restrictions set forth in Section 2.4;
(ixx) the control of any matters affecting the rights and obligations of the Partnership or the applicable SeriesPartnership, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigation, arbitration or mediation litigation and the incurring of legal expense and the settlement of claims and litigation; and;
(xxi) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.7);
(xiii) the purchase, sale or other acquisition or disposition of Partnership Securities, or the issuance of additional options, rights, warrants and appreciation rights relating to Partnership Securities; and
(xiv) the undertaking of any action in connection with the Partnership’s participation in any Group Member as a member or partner.
(b) Notwithstanding any other provision of this Agreement, the Operating Company Agreement, the Delaware Act or any applicable law, rule or regulation, each of the Partners and the Assignees and each other Person who may acquire an interest in Partnership Securities hereby (i) approves, ratifies and confirms the execution, delivery and performance by the parties thereto of the Operating Company Agreement, any other limited liability company or partnership agreement of any other Group Member, the Underwriting Agreement, the Omnibus Agreement, the Contribution Agreement and the other agreements described in or filed as exhibits to the Registration Statement that are related to the transactions contemplated by the Registration Statement; (ii) agrees that the General Partner (on its own or through any officer of the Partnership) is authorized to execute, deliver and perform the agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership without any further act, approval or vote of the Partners or the Assignees or the other Persons who may acquire an interest in Partnership Securities; and (iii) agrees that the execution, delivery or performance by the General Partner, any Group Member or any Affiliate of any of them, of this Agreement or any agreement authorized or permitted under this Agreement (including the exercise by the General Partner or any Affiliate of the General Partner of the rights accorded pursuant to Article XV), shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement (or any other agreements) or of any duty stated or implied by law or equity.
Appears in 3 contracts
Sources: Limited Partnership Agreement (Natural Resource Partners Lp), Limited Partnership Agreement (Natural Resource Partners Lp), Limited Partnership Agreement
Management. (a) The Managing General Partner of the Partnership generally shall conduct, direct and manage all activities of the Partnership generally, and the Managing General Partner of each Series shall conduct, direct and manage all activities of the Series for which it serves as Managing General PartnerPartnership. Except as otherwise expressly provided in this Agreement, (i) all management powers over the business and affairs of the Partnership generally shall be exclusively vested in the Managing General Partner of the Partnership generallyPartner, and no the Limited Partner or other General Partner shall have any no right of control or management power over the business and affairs of (or authority to bind) the Partnership generally and (ii) all management powers over the business and affairs of each Series shall be exclusively vested in the Managing General Partner of such Series, and no Limited Partner or other General Partner shall have any management power over the business and affairs of (or authority to bind) such SeriesPartnership. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or that which are granted to a Managing the General Partner under any other provision of this Agreement, each Managing the General Partner, subject to any approval required by Section 7.4, Section 7.5 or any other provision of this Agreement6.3, shall have full power and authority to do all things and on such terms as it determines to be it, in its sole discretion, may deem necessary or appropriate to conduct the business of the Partnership generally or the applicable Series, as the case may bePartnership, to exercise all powers set forth in Section 2.5 3.2 and to effectuate the purposes set forth in Section 2.43.1, including the following:
(i) the making of any expenditures, the lending or borrowing of money, the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtedness and the incurring of any other obligations;
(ii) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership and each Series (other than in connection with the matters set forth in Section 9.3)Partnership;
(iii) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the applicable Series Partnership or the merger or other combination of the Partnership with or into another Person;
(iv) the use of the assets of the applicable Series Partnership (including cash on hand) for any purpose consistent with the terms of this Agreement, including the financing of the conduct of the operations of the Partnership, the lending of funds to other Persons (including the MLP, the General Partner and its Affiliates), the repayment of obligations of the Partnership and the making of capital contributions to a Subsidiary;
(v) the negotiation, execution and performance of any contracts, conveyances or other instruments on behalf (including instruments that limit the liability of the Partnership generally under contractual arrangements to all or particular assets of the applicable SeriesPartnership, with the other party to the contract to have no recourse against the General Partner or its assets other than its interest in the Partnership, even if same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case);
(vi) the distribution of cash or property of the applicable SeriesPartnership cash;
(vii) the selection and dismissal of employees (including employees having titles such as "president," "vice president," "secretary" and "treasurer") and agents, outside attorneys, accountants, consultants and contractors and the determination of their compensation and other terms of employment or hiring;
(viii) the maintenance of separate or joint such insurance policies for the benefit of the Partnership Group and the Partners (including the assets of the Partnership, any Series, any Partners ) as it deems necessary or any Indemniteesappropriate;
(viiiix) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies or other relationships subject to the restrictions set forth in Section 2.4relationships;
(ixx) the control of any matters affecting the rights and obligations of the Partnership or the applicable SeriesPartnership, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigation, arbitration or mediation litigation and the incurring of legal expense and the settlement of claims and litigation; and
(xxi) the indemnification of any Person against liabilities and contingencies to the extent permitted by law.
(b) Notwithstanding any other provision of this Agreement, the MLP Agreement, the Delaware Act or any applicable law, rule or regulation, each of the Partners hereby (i) approves, ratifies and confirms the execution, delivery and performance by the parties thereto of the Underwriting Agreement, the Conveyance and Contribution Agreement, the Merger and Contribution Agreement, the agreements and other documents filed as exhibits to the Registration Statement, and the other agreements described in or filed as a part of the Registration Statement; (ii) agrees that the General Partner (on its own or through any officer of the Partnership) is authorized to execute, deliver and perform the agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statements on behalf of the Partnership without any further act, approval or vote of the Partners; and (iii) agrees that the execution, delivery or performance by the General Partner, the MLP, any Group Member or any Affiliate of any of them, of this Agreement or any agreement authorized or permitted under this Agreement, shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partner or any other Persons under this Agreement (or any other agreements) or of any duty stated or implied by law or equity.
Appears in 2 contracts
Sources: Limited Partnership Agreement (Ap Eagle Finance Corp), Limited Partnership Agreement (Amerigas Partners Lp)
Management. (a) The Managing General Partner of the Partnership generally shall conduct, direct and manage all activities of the Partnership generally, and the Managing General Partner of each Series shall conduct, direct and manage all activities of the Series for which it serves as Managing General Partner. Except as otherwise expressly provided in this Agreement, (i) all management powers over the business and affairs of the Partnership generally are and shall be exclusively vested in the Managing General Partner of the Partnership generallyPartner, and no Limited Partner or other General Partner shall have any right to participate in or exercise control or management power over the business and affairs of (or authority to bind) the Partnership generally and (ii) all management powers over the business and affairs of each Series shall be exclusively vested in the Managing Partnership. The General Partner may not be removed by the Partners with or without cause, except with the consent of such Series, and no Limited Partner or other the General Partner shall have any management power over the business and affairs of (or authority to bind) such SeriesPartner. In addition to the powers now or hereafter granted to a general partner of a limited partnership under applicable law or that are granted to a Managing the General Partner under any other provision of this Agreement, each Managing the General Partner, subject to any approval required by Section 7.4the other provisions hereof including, without limitation, Section 7.5 or any other provision of this Agreement7.03, shall have full power and authority to do all things and on such terms as it determines to be deemed necessary or appropriate desirable by it to conduct the business of the Partnership generally or the applicable Series, as the case may bePartnership, to exercise all powers set forth in Section 2.5 3.02 hereof and to effectuate the purposes set forth in Section 2.43.01 hereof, including the followingincluding, without limitation:
(i) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money or selling assets to permit the Partnership to make distributions in such amounts as will permit the General Partner (so long as the General Partner desires to maintain or restore its qualification as a REIT) to avoid the payment of any income or excise tax under the Code and to make distributions to its stockholders sufficient to permit the General Partner to maintain or restore REIT qualification or otherwise to satisfy the REIT Requirements), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtedness (including the securing of same by deed to secure debt, mortgage, deed of trust or other lien or encumbrance on the Partnership’s assets) and the incurring of any other obligationsobligations that it deems necessary for the conduct of the activities of the Partnership;
(ii) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership, the registration of any class of securities of the Partnership under the Exchange Act and each Series (other than in connection with the matters set forth in Section 9.3)listing of any debt securities of the Partnership on any exchange;
(iii) subject to Section 11.02 hereof, the acquisition, dispositionsale, mortgagelease, pledgetransfer, encumbranceexchange or other disposition of any, hypothecation all or exchange of any or substantially all of the assets of the applicable Series Partnership (including, but not limited to, the exercise or grant of any conversion, option, privilege or subscription right or any other right available in connection with any assets at any time held by the Partnership) or the merger merger, consolidation, reorganization or other combination of the Partnership with or into another Personentity;
(iv) the mortgage, pledge, encumbrance or hypothecation of any assets of the Partnership, the assignment of any assets of the Partnership in trust for creditors or on the promise of the assignee to pay the debts of the Partnership, the use of the assets of the applicable Series Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms that it sees fit, including, without limitation, the financing of the operations and activities of the General Partner, the Partnership or any of the Partnership’s Subsidiaries, the lending of funds to other Persons (including, without limitation, the Partnership’s Subsidiaries) and the repayment of obligations of the Partnership, its Subsidiaries and any other Person in which the Partnership has an equity investment, and the making of capital contributions to and equity investments in the Partnership’s Subsidiaries;
(v) the use of the assets of the Partnership (including, without limitation, cash on hand) for any purpose consistent with the terms of this Agreement and on any terms it sees fit, including, without limitation, the financing of the conduct of the operations of the General Partner, the Partnership or any of the Partnership’s Subsidiaries, the lending of funds to other Persons (including, without limitation, the General Partner and its Subsidiaries and the Partnership’s Subsidiaries) and the repayment of obligations of the Partnership and its Subsidiaries and any other Person in which the Partnership has an equity investment and the making of capital contributions to its Subsidiaries;
(vi) the management, operation, leasing, landscaping, repair, alteration, demolition, replacement or improvement of any Property, including, without limitation, any Contributed Property, or other asset of the Partnership or any Subsidiary, whether pursuant to a Services Agreement or otherwise;
(vii) the negotiation, execution and performance of any contracts, leases, conveyances or other instruments on behalf that the General Partner considers useful or necessary to the conduct of the Partnership generally Partnership’s operations or the applicable Seriesimplementation of the General Partner’s powers under this Agreement, including contracting with contractors, developers, consultants, government authorities, accountants, legal counsel, other professional advisors and other agents (including the Transfer Agent) and the payment of their expenses and compensation out of the Partnership’s assets;
(viviii) the distribution of Partnership cash or property other Partnership assets in accordance with this Agreement, the holding, management, investment and reinvestment of cash and other assets of the applicable SeriesPartnership and the collection and receipt of revenues, rents and income of the Partnership;
(viiix) the maintenance of separate or joint such insurance policies (including, without limitation, directors and officers insurance) for the benefit of the PartnershipPartnership and the Partners (including, any Serieswithout limitation, any Partners the General Partner) as the General Partner deems necessary or any Indemniteesappropriate, including, without limitation, (i) casualty, liability and other insurance on the Properties and (ii) liability insurance for the Indemnitees hereunder;
(viiix) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies companies, joint ventures or other relationships subject that the General Partner deems desirable (including, without limitation, the acquisition of interests in, and the contributions of property to, any Subsidiary and any other Person in which it has an equity investment from time to time); provided, however, that as long as the restrictions set forth General Partner desires to maintain or restore its qualification as a REIT, the General Partner may not engage in Section 2.4any such formation, acquisition or contribution that would cause it to fail to qualify as a REIT;
(ixxi) the filing of applications, communicating and otherwise dealing with any and all governmental agencies having jurisdiction over, or in any way affecting, the Partnership’s assets or any other aspect of the Partnership business;
(xii) the taking of any action necessary or appropriate to comply with all regulatory requirements applicable to the Partnership in respect of its business, including preparing or causing to be prepared all financial statements required under applicable regulations and contractual undertakings and all reports, filings and documents, if any, required under the Exchange Act, the Securities Act, or by National Securities Exchange requirements;
(xiii) the control of any matters affecting the rights and obligations of the Partnership or the applicable SeriesPartnership, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigationsettlement, compromise, submission to arbitration or mediation any other form of dispute resolution, or abandonment, of any claim, cause of action, liability, debt or damages, due or owing to or from the Partnership, the commencement or defense of suits, legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, and the representation of the Partnership in all suits or legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, the incurring of legal expense expense, and the settlement of claims and litigation; and
(x) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xiv) the undertaking of any action in connection with the Partnership’s direct or indirect investment in any Subsidiary or any other Person (including, without limitation, the contribution or loan of funds by the Partnership to such Persons);
(xv) except as otherwise specifically set forth in this Agreement, the determination of the fair market value of any Partnership property distributed in-kind using such reasonable method of valuation as it may adopt; provided, that such methods are otherwise consistent with the requirements of this Agreement;
(xvi) the enforcement of any rights against any Partner pursuant to representations, warranties, covenants and indemnities relating to such Partner’s contribution of property or assets to the Partnership;
(xvii) the exercise, directly or indirectly, through any attorney-in-fact acting under a general or limited power-of-attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(xviii) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(xix) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest, pursuant to contractual or other arrangements with such Person;
(xx) the making, execution and delivery of any and all deeds, leases, notes, deeds to secure Debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate in the judgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement;
(xxi) the issuance of additional Partnership Units, as appropriate and in the General Partner’s sole and absolute discretion, in connection with Capital Contributions by Additional Limited Partners and additional Capital Contributions by Partners pursuant to Article IV hereof;
(xxii) the selection and dismissal of General Partner Employees (including, without limitation, employees having titles or offices such as president, vice president, secretary and treasurer), and agents, outside attorneys, accountants, consultants and contractors of the Partnership or the General Partner, the determination of their compensation and other terms of employment or hiring and the delegation to any such General Partner Employee the authority to conduct the business of the Partnership in accordance with the terms of this Agreement;
(xxiii) the distribution of cash to acquire Partnership Units held by a Limited Partner in connection with a Limited Partner’s exercise of its Redemption right under Section 8.06 hereof;
(xxiv) maintaining, or causing to be maintained, the books and records of the Partnership or the Transfer Agent to reflect accurately at all times the Capital Contributions and Percentage Interests of the Partners as the same are adjusted from time to time to the extent necessary to reflect redemptions, Capital Contributions, the number of Partnership Units (including any issuance thereof), the admission of any Additional Limited Partner or any Substituted Limited Partner or otherwise;
(xxv) the determination regarding whether a payment to a Partner who exercises its Redemption Right under Section 8.06 that is assumed by the General Partner will be paid in the form of the Cash Amount or the REIT Shares Amount, except as such determination may be limited by Section 8.06.
(xxvi) the collection and receipt of revenues and income of the Partnership;
(xxvii) the registration of any class of securities of the Partnership under the Securities Act or the Exchange Act;
(xxviii) the entering into of listing agreements with any National Securities Exchange and the listing of any securities of the Partnership on any such exchange;
(xxix) the delisting of some or all of the Partnership Units from, or requesting that trading be suspended on, any National Securities Exchange;
(xxx) an election to dissolve the Partnership pursuant to Section 13.01(d) hereof; and
(xxxi) the taking of any action necessary or appropriate to enable the General Partner to qualify as a REIT (so long as the General Partner desires to maintain or restore its qualification as a REIT).
(b) Each of the Limited Partners agrees that, except as provided in Section 7.03 hereof, the General Partner is authorized to execute, deliver and perform the above-mentioned agreements and transactions on behalf of the Partnership without any further act, approval or vote of the Partners, notwithstanding any other provision of this Agreement, the Act or any applicable law, rule or regulation and, in the absence of any specific corporate action on the part of the General Partner to the contrary, the taking of any action or the execution of any such document or writing by an officer of the General Partner, in the name and on behalf of the General Partner, in its capacity as the general partner of the Partnership, shall conclusively evidence (1) the approval thereof by the General Partner, in its capacity as the general partner of the Partnership, (2) the General Partner’s determination that such action, document or writing is necessary or desirable to conduct the business and affairs of the Partnership, exercise the powers of the Partnership under this Agreement and the Act or effectuate the purposes of the Partnership, or any other determination by the General Partner required by this Agreement in connection with the taking of such action or execution of such document or writing, and (3) the authority of such officer with respect thereto.
(c) At all times from and after the date hereof, the General Partner may cause the Partnership to obtain and maintain (i) casualty, liability and other insurance on the Properties and (ii) liability insurance for the Indemnitees hereunder.
(d) At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain working capital and other reserves in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
(e) In exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner (including the General Partner) of any action taken (or not taken) by it. Except as may be provided in a separate written agreement between the Partnership and the Limited Partners, the General Partner and the Partnership shall not have liability to a Limited Partner under any circumstances as a result of a tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner pursuant to its authority under this Agreement provided, that the General Partner has acted in good faith and pursuant to its authority under this Agreement.
Appears in 2 contracts
Sources: Limited Partnership Agreement (Empire State Realty OP, L.P.), Limited Partnership Agreement (Empire State Realty Trust, Inc.)
Management. (a) The Managing General Partner of the Partnership generally shall conduct, direct and manage all activities of the Partnership generally, and the Managing General Partner of each Series shall conduct, direct and manage all activities of the Series for which it serves as Managing General Partner. A. Except as otherwise expressly provided in this Agreement, (i) all management powers over the business and affairs of the Partnership generally are and shall be exclusively vested in the Managing General Partner of the Partnership generallyPartner, and no Limited Partner or other General Partner shall have any right to participate in or exercise control or management power over the business and affairs of (or authority to bind) the Partnership generally and (ii) all management powers over the business and affairs of each Series shall be exclusively vested in the Managing Partnership. The General Partner may not be removed by the Partners with or without cause, except with the consent of such Series, and no Limited Partner or other the General Partner shall have any management power over the business and affairs of (or authority to bind) such SeriesPartner. In addition to the powers now or hereafter granted to a general partner of a limited partnership under applicable law or that are granted to a Managing the General Partner under any other provision of this Agreement, each Managing the General Partner, subject to any approval required by the other provisions hereof including Section 7.4, Section 7.5 or any other provision of this Agreement7.3, shall have full power and authority to do all things and on such terms as it determines to be deemed necessary or appropriate desirable by it to conduct the business of the Partnership generally or the applicable Series, as the case may bePartnership, to exercise all powers set forth in Section 2.5 3.2 hereof and to effectuate the purposes set forth in Section 2.43.1 hereof, including the followingincluding, without limitation:
(i1) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money or selling assets to permit the Partnership to make distributions to its Partners in such amounts as will permit the General Partner (so long as the General Partner desires to maintain or restore its status as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Code Section 4981) and to make distributions to its stockholders sufficient to permit the General Partner to maintain or restore REIT status or otherwise to satisfy the REIT Requirements), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtedness (including the securing of same by deed to secure debt, mortgage, deed of trust or other lien or encumbrance on the Partnership’s assets) and the incurring of any other obligationsobligations that it deems necessary for the conduct of the activities of the Partnership;
(ii2) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership and each Series (other than in connection with the matters set forth in Section 9.3)Partnership;
(iii3) the acquisition, dispositionsale, mortgagelease, pledgetransfer, encumbranceexchange or other disposition of any, hypothecation all or exchange of any or substantially all of the assets of the applicable Series Partnership (including, but not limited to, the exercise or grant of any conversion, option, privilege or subscription right or any other right available in connection with any assets at any time held by the Partnership) or the merger merger, consolidation, reorganization or other combination of the Partnership with or into another Personentity;
(iv4) the mortgage, pledge, encumbrance or hypothecation of any assets of the Partnership, the use of the assets of the applicable Series Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms that it sees fit, including, without limitation, the financing of the operations and activities of the General Partner, the Partnership or any of the Partnership’s Subsidiaries, the lending of funds to other Persons (including, without limitation, the Partnership’s Subsidiaries) and the repayment of obligations of the Partnership, its Subsidiaries and any other Person in which the Partnership has an equity investment, and the making of capital contributions to and equity investments in the Partnership’s Subsidiaries;
(v5) the management, operation, leasing, landscaping, repair, alteration, demolition, replacement or improvement of any Property, including, without limitation, any Contributed Property, or other asset of the Partnership or any Subsidiary, whether pursuant to a Services Agreement or otherwise;
(6) the negotiation, execution and performance of any contracts, leases, conveyances or other instruments on behalf that the General Partner considers useful or necessary to the conduct of the Partnership generally Partnership’s operations or the applicable Seriesimplementation of the General Partner’s powers under this Agreement, including contracting with contractors, developers, consultants, accountants, legal counsel, other professional advisors and other agents and the payment of their expenses and compensation out of the Partnership’s assets;
(vi7) the distribution of Partnership cash or property other Partnership assets in accordance with this Agreement, the holding, management, investment and reinvestment of cash and other assets of the applicable SeriesPartnership, and the collection and receipt of revenues, rents and income of the Partnership;
(vii) 8) the maintenance of separate or joint such insurance policies for the benefit of the PartnershipPartnership and the Partners as it deems necessary or appropriate, any Seriesincluding, any Partners or any Indemniteeswithout limitation, (i) casualty, liability and other insurance on the Properties and (ii) liability insurance for the Indemnitees hereunder;
(viii9) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies companies, joint ventures or other relationships subject that it deems desirable (including, without limitation, the acquisition of interests in, and the contributions of property to, any Subsidiary and any other Person in which it has an equity investment from time to time); provided, however, that, as long as the restrictions set forth General Partner has determined to continue to qualify as a REIT, the General Partner may not engage in any such formation, acquisition or contribution that would cause the General Partner to fail to qualify as a REIT within the meaning of Code Section 2.4856(a);
(ix10) the control of any matters affecting the rights and obligations of the Partnership or the applicable SeriesPartnership, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigationsettlement, compromise, submission to arbitration or mediation any other form of dispute resolution, or abandonment, of any claim, cause of action, liability, debt or damages, due or owing to or from the Partnership, the commencement or defense of suits, legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, and the representation of the Partnership in all suits or legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, the incurring of legal expense expense, and the settlement of claims and litigation; and
(x) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(11) the undertaking of any action in connection with the Partnership’s direct or indirect investment in any Subsidiary or any other Person (including, without limitation, the contribution or loan of funds by the Partnership to such Persons);
(12) except as otherwise specifically set forth in this Agreement, the determination of the fair market value of any Partnership property distributed in kind using such reasonable method of valuation as it may adopt; provided that such methods are otherwise consistent with the requirements of this Agreement;
(13) the enforcement of any rights against any Partner pursuant to representations, warranties, covenants and indemnities relating to such Partner’s contribution of property or assets to the Partnership;
(14) the exercise, directly or indirectly, through any attorney-in-fact acting under a general or limited power of attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(15) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(16) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest, pursuant to contractual or other arrangements with such Person;
(17) the making, execution and delivery of any and all deeds, leases, notes, deeds to secure debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate in the judgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement;
(18) the issuance of additional Partnership Units, as appropriate and in the General Partner’s sole and absolute discretion, in connection with Capital Contributions by Additional Limited Partners and additional Capital Contributions by Partners pursuant to Article 4 hereof;
(19) the selection and dismissal of Company Employees (including, without limitation, employees having titles or offices such as president, vice president, secretary and treasurer), and agents, outside attorneys, accountants, consultants and contractors of the Partnership or the General Partner, the determination of their compensation and other terms of employment or hiring and the delegation to any such Company Employee the authority to conduct the business of the Partnership in accordance with the terms of this Agreement; and
(20) an election to dissolve the Partnership pursuant to Section 13.1.C hereof.
B. Each of the Limited Partners agrees that, except as provided in Section 7.3 hereof, the General Partner is authorized to execute, deliver and perform the above-mentioned agreements and transactions on behalf of the Partnership without any further act, approval or vote of the Partners, notwithstanding any other provision of this Agreement, the Act or any applicable law, rule or regulation. The execution, delivery or performance by the General Partner or the Partnership of any agreement authorized or permitted under this Agreement shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement or of any duty stated or implied by law or equity.
C. At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain working capital and other reserves in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
D. In exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner (including the General Partner) of any action taken by it. The General Partner and the Partnership shall not have liability to a Limited Partner under any circumstances as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner pursuant to its authority under this Agreement.
Appears in 2 contracts
Sources: Agreement of Limited Partnership (Hilltop Holdings Inc.), Limited Partnership Agreement (Affordable Residential Communities Inc)
Management. (a) The Managing General Partner of the Partnership generally shall conduct, direct and manage all activities of the Partnership generally, and the Managing General Partner of each Series shall conduct, direct and manage all activities of the Series for which it serves as Managing General Partner. A. Except as otherwise expressly provided in this Agreement, (i) all management powers over the business and affairs of the Partnership generally are and shall be exclusively vested in the Managing General Partner of the Partnership generallyPartner, and no Limited Partner or other General Partner shall have any right to participate in or exercise control or management power over the business and affairs of (or authority to bind) the Partnership generally and (ii) all management powers over the business and affairs of each Series shall be exclusively vested in the Managing Partnership. The General Partner may not be removed by the Partners with or without cause, except with the Consent of such Series, and no Limited Partner or other the General Partner shall have any management power over the business and affairs of (or authority to bind) such SeriesPartner. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or that are granted to a Managing the General Partner under any other provision of this Agreement, each Managing the General Partner, subject to any approval required by the other provisions hereof including Section 7.4, Section 7.5 or any other provision of this Agreement7.3, shall have full power and authority to do all things and on such terms as it determines to be deemed necessary or appropriate desirable by it to conduct the business of the Partnership generally or the applicable Series, as the case may bePartnership, to exercise all powers set forth in Section 2.5 3.2 hereof and to effectuate the purposes set forth in Section 2.43.1 hereof, including the followingincluding, without limitation:
(i1) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money to permit the Partnership to make distributions to its Partners in such amounts as will permit the Previous General Partner (so long as the Previous General Partner qualifies as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Code Section 4981) and to make distributions to its shareholders sufficient to permit the Previous General Partner to maintain REIT status or otherwise to satisfy the REIT Requirements), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtedness (including the securing of same by deed to secure debt, mortgage, deed of trust or other lien or encumbrance on the Partnership's assets) and the incurring of any other obligationsobligations that it deems necessary for the conduct of the activities of the Partnership;
(ii2) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership and each Series (other than in connection with the matters set forth in Section 9.3)Partnership;
(iii3) the acquisition, dispositionsale, mortgagetransfer, pledge, encumbrance, hypothecation exchange or exchange other disposition of any or all of the assets of the applicable Series Partnership (including, but not limited to, the exercise or grant of any conversion, option, privilege or subscription right or any other right available in connection with any assets at any time held by the Partnership) or the merger merger, consolidation, reorganization or other combination of the Partnership with or into another Personentity;
(iv4) the mortgage, pledge, encumbrance or hypothecation of any assets of the Partnership, the use of the assets of the applicable Series Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms that it sees fit, including, without limitation, the financing of the operations and activities of the General Partner, the Partnership or any of the Partnership's Subsidiaries, the lending of funds to other Persons (including, without limitation, the Partnership's Subsidiaries) and the repayment of obligations of the Partnership, its Subsidiaries and any other Person in which it has an equity investment, and the making of capital contributions to and equity investments in the Partnership's Subsidiaries;
(v5) the management, operation, leasing, landscaping, repair, alteration, demolition, replacement or improvement of any Property, including, without limitation, any Contributed Property, or other asset of the Partnership or any Subsidiary;
(6) the negotiation, execution and performance of any contracts, leases, conveyances or other instruments on behalf that the General Partner considers useful or necessary to the conduct of the Partnership generally Partnership's operations or the applicable Seriesimplementation of the General Partner's powers under this Agreement, including contracting with contractors, developers, consultants, accountants, legal counsel, other professional advisors and other agents and the payment of their expenses and compensation out of the Partner ship's assets;
(vi7) the distribution of Partnership cash or property other Partnership assets in accordance with this Agreement, the holding, management, investment and reinvestment of cash and other assets of the applicable SeriesPartnership, and the collection and receipt of revenues, rents and income of the Partnership;
(vii8) the selection and dismissal of employees of the Partnership or the General Partner (including, without limitation, employees having titles or offices such as "president," "vice president," "secretary" and "treasurer"), and agents, outside attorneys, accountants, consultants and contractors of the Partnership or the General Partner and the determination of their compensation and other terms of employment or hiring;
(9) the maintenance of separate or joint such insurance policies for the benefit of the Partnership, any Series, any Partnership and the Partners as it deems necessary or any Indemniteesappropriate;
(viii10) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies companies, joint ventures or other relationships subject that it deems desirable (including, without limitation, the acquisition of interests in, and the contributions of property to, any Subsidiary and any other Person in which it has an equity investment from time to time); provided, however, that, as long as the restrictions set forth Previous General Partner has determined to continue to qualify as a REIT, the General Partner may not engage in any such formation, acquisition or contribution that would cause the Previous General Partner to fail to qualify as a REIT or the General Partner to fail to qualify as a "qualified REIT subsidiary" within the meaning of Code Section 2.4856(i)(2);
(ix11) the control of any matters affecting the rights and obligations of the Partnership or the applicable SeriesPartnership, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigationsettlement, compromise, submission to arbitration or mediation any other form of dispute resolution, or abandonment, of any claim, cause of action, liability, debt or damages, due or owing to or from the Partnership, the commencement or defense of suits, legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, and the representation of the Partnership in all suits or legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, the incurring of legal expense expense, and the settlement of claims and litigation; and
(x) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(12) the undertaking of any action in connection with the Partnership's direct or indirect investment in any Subsidiary or any other Person (including, without limitation, the contribution or loan of funds by the Partnership to such Persons);
(13) the determination of the fair market value of any Partnership property distributed in kind using such reasonable method of valuation as it may adopt; provided that such methods are otherwise consistent with the requirements of this Agreement;
(14) the enforcement of any rights against any Partner pursuant to representations, warranties, covenants and indemnities relating to such Partner's contribution of property or assets to the Partnership;
(15) the exercise, directly or indirectly, through any attorney- in-fact acting under a general or limited power of attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(16) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(17) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest, pursuant to contractual or other arrangements with such Person;
(18) the making, execution and delivery of any and all deeds, leases, notes, deeds to secure debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate in the judgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement;
(19) the issuance of additional Partnership Units, as appropriate and in the General Partner's sole and absolute discretion, in connection with Capital Contributions by Additional Limited Partners and additional Capital Contributions by Partners pursuant to Article 4 hereof; and
(20) an election to dissolve the Partnership pursuant to Section 13.1.C hereof.
B. Each of the Limited Partners agrees that, except as provided in Section 7.3 hereof, the General Partner is authorized to execute, deliver and perform the above-mentioned agreements and transactions on behalf of the Partnership without any further act, approval or vote of the Partners, notwithstanding any other provision of this Agreement (except as provided in Section 7.3 hereof), the Act or any applicable law, rule or regulation. The execution, delivery or performance by the General Partner or the Partnership of any agreement authorized or permitted under this Agreement shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement or of any duty stated or implied by law or equity.
C. At all times from and after the date hereof, the General Partner may cause the Partnership to obtain and maintain (i) casualty, liability and other insurance on the Properties of the Partnership and (ii) liability insurance for the Indemnitees hereunder.
D. At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain working capital and other reserves in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
E. In exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner (including the General Partner) of any action taken by it. The General Partner and the Partnership shall not have liability to a Limited Partner under any circumstances as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner pursuant to its authority under this Agreement so long as the action or inaction is taken in good faith.
Appears in 2 contracts
Sources: Limited Partnership Agreement (Aimco Properties Lp), Limited Partnership Agreement (Aimco Properties Lp)
Management. (a) The Managing Except as delegated to the Manager Group as set forth in the Management Services Agreement or as otherwise provided therein or in the NEE Partners Partnership Agreement, the General Partner of the Partnership generally shall conduct, direct and manage all activities of the Partnership generally, and the Managing General Partner of each Series shall conduct, direct and manage all activities of the Series for which it serves as Managing General PartnerPartnership. Except as otherwise expressly provided in this Agreement, (i) but without limitation on the ability of the General Partner to delegate its rights and power to other Persons, all management powers over the business and affairs of the Partnership generally shall be exclusively vested in the Managing General Partner of the Partnership generallyPartner, and no Limited Partner or other General Partner in its capacity as such shall have any management power over the business and affairs of (or authority to bind) the Partnership generally and (ii) all management powers over the business and affairs of each Series shall be exclusively vested in the Managing General Partner of such Series, and no Limited Partner or other General Partner shall have any management power over the business and affairs of (or authority to bind) such SeriesPartnership. In addition to the powers now or hereafter granted to a general partner of a limited partnership under applicable law or that are granted to a Managing the General Partner under any other provision of this Agreement, each Managing the General Partner, subject to any approval required by Section 7.4, Section 7.5 or any other provision of this Agreement7.3, shall have full power and authority to do all things and on such terms as it determines to be necessary or appropriate to conduct the business of the Partnership generally or the applicable Series, as the case may bePartnership, to exercise all powers set forth in Section 2.5 and to effectuate the purposes set forth in Section 2.4, including the following:
(i) the making of any expenditures, the lending or borrowing of money, the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtedness, including indebtedness that is convertible into or exchangeable for Partnership Interests, and the incurring of any other obligations;
(ii) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership and each Series (other than in connection with the matters set forth in Section 9.3)Partnership;
(iii) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the applicable Series Partnership or the merger or other combination of the Partnership with or into another PersonPerson (the matters described in this clause (iii) being subject, however, to any prior approval that may be required by Section 7.3 and Article XIV);
(iv) the use of the assets of the applicable Series Partnership (including cash on hand) for any purpose consistent with the terms of this Agreement, including (A) the financing of the conduct of the operations of the Partnership Group; (B) subject to Section 7.6(a), the lending of funds to other Persons (including other Group Members); (C) the repayment or guarantee of obligations of any Group Member; and (D) the making of capital contributions to any Group Member;
(v) the negotiation, execution and performance of any contracts, conveyances or other instruments on behalf (including instruments that limit the liability of the Partnership generally under contractual arrangements to all or particular assets of the applicable SeriesPartnership, with the other party to the contract having no recourse against the General Partner or its assets other than its interest in the Partnership, even if the same results in the terms of the transaction are less favorable to the Partnership than would otherwise be the case);
(vi) the distribution of cash or property of held by the applicable SeriesPartnership;
(vii) the selection and dismissal of employees (including employees having titles such as “president,” “vice president,” “secretary” and “treasurer”) and agents, internal and outside attorneys, accountants, consultants and contractors and the determination of their compensation and other terms of employment or hiring;
(viii) the maintenance of separate or joint insurance policies for the benefit of the PartnershipPartnership Group, any Series, any the Partners or any and Indemnitees;
(viiiix) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies or other relationships Persons (including the acquisition of interests in, and the contributions of property to, any Group Member from time to time) subject to the restrictions set forth in Section 2.4;
(ixx) the control of any matters affecting the rights and obligations of the Partnership or the applicable SeriesPartnership, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigation, arbitration or mediation and the incurring of legal expense and the settlement of claims and litigation; and;
(xxi) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the purchase, sale or other acquisition or disposition of Partnership Interests, or the issuance of Derivative Partnership Interests;
(xiii) the undertaking of any action in connection with the Partnership’s participation in the management of any Group Member; and
(xiv) the entering into of agreements with any of its Affiliates to render services to a Group Member or to itself in the discharge of its duties as General Partner of the Partnership.
(b) Notwithstanding any other provision of this Agreement, any Group Member Agreement, the Delaware Act or any applicable law, rule or regulation, each of the Partners and each other Person who may acquire an interest in Partnership Interests hereby agrees that the execution, delivery or performance by the General Partner, any Group Member or any Affiliate of any of them of this Agreement or any agreement authorized or permitted under this Agreement (including the exercise by the General Partner or any Affiliate of the General Partner of the rights accorded pursuant to Article XVII) shall not constitute a breach by the General Partner of any duty or any other obligation of any type whatsoever that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement (or any other agreements) or of any duty existing at law, in equity or otherwise.
(c) Notwithstanding any other provision of this Agreement, the consent of the NEE Partners General Partner, which may be granted or withheld in its sole discretion, shall be required for the following actions:
(i) Sale of all or substantially all assets of the Partnership Group as set forth in Section 7.3.
(ii) Merger, consolidation, or conversion of the Partnership, as set forth in Section 14.2, or the merger, consolidation, or conversion of any other Group Member.
(iii) Dissolution of the Partnership, as set forth in Section 12.1(b), or the dissolution of any other Group Member.
(iv) Transfer by the General Partner of all or any part of its General Partner Interest to another Person as set forth in Section 4.6.
(v) Amendment of this Agreement.
Appears in 2 contracts
Sources: Limited Partnership Agreement (NextEra Energy Partners, LP), Limited Partnership Agreement (NextEra Energy Partners, LP)
Management. (a) The Managing General Partner of the Partnership generally shall conduct, direct and manage all activities of the Partnership generally, and the Managing General Partner of each Series shall conduct, direct and manage all activities of the Series for which it serves as Managing General Partner. A. Except as otherwise expressly provided in this Agreement, (i) all management powers over the business and affairs of the Partnership generally are and shall be exclusively vested in the Managing General Partner of the Partnership generallyPartner, and no Limited Partner or other General Partner shall have any right to participate in or exercise control or management power over the business and affairs of (or authority to bind) the Partnership generally and (ii) all management powers over the business and affairs of each Series shall be exclusively vested in the Managing Partnership. The General Partner of such Series, and no may not be removed by the Limited Partner Partners with or other General Partner shall have any management power over the business and affairs of (or authority to bind) such Serieswithout cause. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or that which are granted to a Managing the General Partner under any other provision of this Agreement, each Managing the General Partner, subject to any approval required by Section 7.4, Section 7.5 or any the other provision of this Agreementprovisions hereof including Sections 7.3 and 11.2, shall have full power and authority to do all things and on such terms as it determines to be deemed necessary or appropriate desirable by it to conduct the business of the Partnership generally or (including, without limitation, all actions consistent with allowing the applicable Series, General Partner at all times to qualify as a REIT unless the case may beGeneral Partner voluntarily terminates its REIT status), to exercise all powers set forth in Section 2.5 3.2 and to effectuate the purposes set forth in Section 2.43.1, including the followingincluding, without limitation:
(i1) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money to permit the Partnership to make distributions to its Partners in such amounts as will permit the General Partner (so long as the General Partner has determined to qualify as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Section 4981 of the Code) and to make distributions to its stockholders sufficient to permit the General Partner to maintain REIT status), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtedness (including the securing of same by mortgage, deed of trust or other lien or encumbrance on the Partnership’s assets) and the incurring of any other obligationsobligations it deems necessary for the conduct of the activities of the Partnership;
(ii2) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership, the registration of any class of securities of the Partnership under the Securities Exchange Act of 1934, as amended, and each Series (other than in connection with the matters set forth in Section 9.3)listing of any debt securities of the Partnership on any exchange;
(iii3) subject to the provisions of Section 11.2, the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the applicable Series Partnership or the merger or other combination of the Partnership with or into another Personentity;
(iv4) the acquisition, disposition, mortgage, pledge, encumbrance or hypothecation of any assets of the Partnership, and the use of the assets of the applicable Series Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms it sees fit, including, without limitation, the financing of the conduct or the operations of the General Partner or the Partnership, the lending of funds to other Persons (including, without limitation, the General Partner or any Subsidiaries of the Partnership) and the repayment of obligations of the Partnership, any of its Subsidiaries and any other Person in which it has an equity investment, and the making of capital contributions to its Subsidiaries;
(v5) the management, operation, leasing, landscaping, repair, alteration, demolition or improvement of any real property or improvements owned by the Partnership or any Subsidiary of the Partnership;
(6) the negotiation, execution execution, and performance of any contracts, leases, conveyances or other instruments on behalf that the General Partner considers useful or necessary to the conduct of the Partnership generally Partnership’s operations or the applicable Seriesimplementation of the General Partner’s powers under this Agreement, including contracting with contractors, developers, consultants, accountants, legal counsel, other professional advisors and other agents and the payment of their expenses and compensation out of the Partnership’s assets;
(vi7) the distribution of Partnership cash or property of the applicable Seriesother Partnership assets in accordance with this Agreement;
(vii8) the establishment of one or more divisions of the Partnership, the selection and dismissal of employees of the Partnership (including, without limitation, employees having titles such as “president,” “vice president,” “secretary” and “treasurer”), and agents, outside attorneys, accountants, consultants and contractors of the Partnership, the determination of their compensation and other terms of employment or hiring, including waivers of conflicts of interest and the payment of their expenses and compensation out of the Partnership’s assets;
(9) the maintenance of separate or joint such insurance policies for the benefit of the Partnership, any Series, any Partnership and the Partners and directors and officers of the Partnership or any Indemniteesthe General Partner as it deems necessary or appropriate;
(viii10) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, limited liability companies, joint ventures, corporations, limited liability companies corporations or other relationships subject that it deems desirable (including, without limitation, the acquisition of interests in, and the contributions of property to any Subsidiary and any other Person in which it has an equity investment from time to time); provided, that, as long as the restrictions set forth General Partner has determined to continue to qualify as a REIT, the Partnership may not engage in Section 2.4any such formation, acquisition or contribution that could cause the General Partner to fail to qualify as a REIT;
(ix11) the control of any matters affecting the rights and obligations of the Partnership or the applicable SeriesPartnership, including the bringing and defending settlement, compromise, submission to arbitration or any other form of actions at law dispute resolution, or in equity and otherwise engaging in abandonment of, any claim, cause of action, liability, debt or damages, due or owing to or from the conduct Partnership, the commencement or defense of litigationsuits, legal proceedings, administrative proceedings, arbitration or mediation other forms of dispute resolution, and the representation of the Partnership in all suits or legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, the incurring of legal expense expense, and the settlement of claims and litigation; and
(x) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(12) the undertaking of any action in connection with the Partnership’s direct or indirect investment in any Person (including, without limitation, contributing or loaning Partnership funds to, incurring indebtedness on behalf of, or guarantying the obligations of any such Persons);
(13) subject to the other provisions in this Agreement, the determination of the fair market value of any Partnership property distributed in kind using such reasonable method of valuation as it may adopt, provided, that such methods are otherwise consistent with requirements of this Agreement;
(14) the management, operation, leasing, landscaping, repair, alteration, demolition or improvement of any real property or improvements owned by the Partnership or any Subsidiary of the Partnership or any Person in which the Partnership has made a direct or indirect equity investment;
(15) holding, managing, investing and reinvesting cash and other assets of the Partnership;
(16) the collection and receipt of revenues and income of the Partnership;
(17) the exercise, directly or indirectly through any attorney-in-fact acting under a general or limited power of attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(18) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(19) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest pursuant to contractual or other arrangements with such Person;
(20) the making, execution and delivery of any and all deeds, leases, notes, deeds to secure debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate in the judgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement;
(21) the issuance of additional Partnership Interests as provided in Sections 4.3, 4.4 or 4.5;
(22) the distribution of cash to acquire Partnership Units held by a Limited Partner in connection with a Limited Partner’s exercise of its Redemption Right under Section 8.6 hereof;
(23) the amendment and restatement of Exhibit A hereto to reflect accurately at all times the Capital Contributions and Percentage Interests of the Partners as the same are adjusted from time to time to the extent necessary to reflect redemptions, Capital Contributions, the issuance of Partnership Units, the admission of any Additional Limited Partner or any Substituted Limited Partner or otherwise, which amendment and restatement, notwithstanding anything in this Agreement to the contrary, shall not be deemed an amendment to this Agreement, as long as the matter or event being reflected in Exhibit A hereto otherwise is authorized by this Agreement;
(24) the taking of any and all acts and things necessary or prudent to ensure that the Partnership will not be classified as a “publicly traded partnership” taxable as a corporation under Section 7704 of the Code; and
(25) the delegation to another Person of any powers now or hereafter granted to the General Partner.
B. Each of the Limited Partners agrees that the General Partner is authorized to execute, deliver and perform the above-mentioned agreements and transactions on behalf of the Partnership without any further act, approval or vote of the Partners, notwithstanding any other provisions of this Agreement (except as provided in Section 7.3 or 11.2), the Act or any applicable law, rule or regulation to the fullest extent permitted under the Act or other applicable law, rule or regulation. The execution, delivery or performance by the General Partner or the Partnership of any agreement authorized or permitted under this Agreement shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement or of any duty stated or implied by law or equity.
C. At all times from and after the date hereof, the General Partner may cause the Partnership to obtain and maintain (i) casualty, liability and other insurance on the properties of the Partnership and (ii) liability insurance for the benefit of any or all Indemnitees.
D. At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain working capital reserves in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
E. In exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner (including the General Partner) of any action taken (or not taken) by the General Partner. The General Partner and the Partnership shall not have liability to a Partner under this Agreement as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner pursuant to its authority under this Agreement.
F. Except as otherwise provided herein, to the extent the duties of the General Partner require expenditures of funds to be paid to third parties, the General Partner shall not have any obligations hereunder except to the extent that Partnership funds are reasonably available to it for the performance of such duties, and nothing herein contained shall be deemed to authorize or require the General Partner, in its capacity as such, to expend its individual funds for payment to third parties or to undertake any individual liability or obligation on behalf of the Partnership.
Appears in 2 contracts
Sources: Limited Partnership Agreement (Digital Realty Trust, Inc.), Agreement of Limited Partnership (Digital Realty Trust, Inc.)
Management. (a) The Managing General Partner of the Partnership generally shall conduct, direct and manage all activities of the Partnership generally, and the Managing General Partner of each Series shall conduct, direct and manage all activities of the Series for which it serves as Managing General Partner. 7.1.1 Except as otherwise expressly provided in this Agreement, (i) all management powers over the business and affairs of the Partnership generally are and shall be exclusively vested in the Managing General Partner of the Partnership generallyPartner, and no Limited Partner or other General Partner shall have any right to participate in or exercise control or management power over the business and affairs of (or authority to bind) the Partnership generally and (ii) all management powers over the business and affairs of each Series shall be exclusively vested in the Managing Partnership. The General Partner may not be removed by the Partners with or without cause, except with the consent of such Series, and no Limited Partner or other the General Partner shall have any management power over the business and affairs of (or authority to bind) such SeriesPartner. In addition to the powers now or hereafter granted to a general partner of a limited partnership under applicable law or that are granted to a Managing the General Partner under any other provision of this Agreement, each Managing the General Partner, subject to any approval required by Section 7.4, Section 7.5 or any the other provision of this Agreementprovisions hereof, shall have full power and authority to do all things and on such terms as it determines to be deemed necessary or appropriate desirable by it to conduct the business of the Partnership generally or the applicable Series, as the case may bePartnership, to exercise all powers set forth in Section 2.5 3.2 hereof and to effectuate the purposes set forth in Section 2.43.1 hereof, including the followingincluding, without limitation:
(ia) the making of any expenditures, the lending or borrowing of moneymoney (including making prepayments on loans and borrowing money or selling assets to permit the Partnership to make distributions to its Partners in such amounts as will permit the General Partner (so long as the General Partner desires to maintain or restore its status as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Code Section 4981) and to make distributions sufficient to permit the General Partner to maintain or restore REIT status or otherwise to satisfy the REIT Requirements), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtedness (including the securing of same by deed to secure debt, mortgage, deed of trust or other lien or encumbrance on the Partnership’s assets) and the incurring of any other obligationsobligations that it deems necessary for the conduct of the activities of the Partnership;
(iib) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership and each Series (other than in connection with the matters set forth in Section 9.3)Partnership;
(iiic) the acquisition, dispositionsale, mortgagelease, pledgetransfer, encumbranceexchange or other disposition of any, hypothecation all or exchange of any or substantially all of the assets of the applicable Series Partnership (including, but not limited to, the exercise or grant of any conversion, option, privilege or subscription right or any other right available in connection with any assets at any time held by the merger Partnership) or, subject to Section 8.6, the merger, consolidation, reorganization or other combination of the Partnership with or into another Personentity;
(ivd) the mortgage, pledge, encumbrance or hypothecation of any assets of the Partnership, the use of the assets of the applicable Series Partnership (including cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms that it sees fit, including the financing of the operations and activities of the General Partner, the Partnership or any of the Partnership’s Subsidiaries, the lending of funds to other Persons (including the Partnership’s Subsidiaries) and the repayment of obligations of the Partnership, its Subsidiaries and any other Person in which the Partnership has an equity investment, and the making of capital contributions to and equity investments in the Partnership’s Subsidiaries;
(ve) the management, operation, leasing, landscaping, repair, alteration, demolition, replacement or improvement of any Property, including any Contributed Property, or other asset of the Partnership or any Subsidiary, whether pursuant to a Services Agreement or otherwise;
(f) the negotiation, execution and performance of any contracts, leases, conveyances or other instruments on behalf that the General Partner considers useful or necessary to the conduct of the Partnership generally Partnership’s operations or the applicable Series;implementation of the General Partner’s powers under this Agreement, including contracting with contractors, developers, consultants, accountants, legal counsel, the Advisor’s other professional advisors and other agents and the payment of their expenses and compensation out of the Partnership’s assets; provided, however, that the Advisory Agreement must contain a provision (the “Voting Direction Provision”) that requires the Advisor to vote the shares of Proportionate Voting Preferred Stock in proportion to the votes (the “LP Direction Votes”) that the Advisor receives from the holders of Partnership Units (other than the General Partner), that are issued pursuant to the Master Agreement or pursuant to any option delivered pursuant thereto or in connection with the consummation of the transactions contemplated thereby. The Advisor shall not cast any votes with respect to the share of Proportionate Voting Preferred Stock unless it receives LP Direction Votes with respect thereto.
(vig) the distribution of Partnership cash or property other Partnership assets in accordance with this Agreement, the holding, management, investment and reinvestment of cash and other assets of the applicable SeriesPartnership, and the collection and receipt of revenues, rents and income of the Partnership;
(viih) the maintenance of separate or joint such insurance policies for the benefit of the PartnershipPartnership and the Partners as it deems necessary or appropriate, any Seriesincluding (i) casualty, any Partners or any Indemniteesliability and other insurance on the Properties and (ii) liability insurance for the Indemnitees hereunder;
(viiii) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies companies, joint ventures or other relationships subject that it deems desirable (including the acquisition of interests in, and the contributions of property to, any Subsidiary and any other Person in which it has an equity investment from time to the restrictions set forth in Section 2.4time);
(ixj) the control of any matters affecting the rights and obligations of the Partnership or the applicable SeriesPartnership, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigationsettlement, compromise, submission to arbitration or mediation any other form of dispute resolution, or abandonment, of any claim, cause of action, liability, debt or damages, due or owing to or from the Partnership, the commencement or defense of suits, legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, and the representation of the Partnership in all suits or legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, the incurring of legal expense expense, and the settlement of claims and litigation; and
(x) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(k) the undertaking of any action in connection with the Partnership’s direct or indirect investment in any Subsidiary or any other Person (including the contribution of Property or contribution or loan of funds by the Partnership to such Persons);
(l) except as otherwise specifically set forth in this Agreement, the determination of the fair market value of any Partnership property distributed in kind using such method of valuation as it may reasonably adopt as long as such method is otherwise consistent with the requirements of this Agreement;
(m) the enforcement of any rights against any Partner pursuant to representations, warranties, covenants and indemnities relating to such Partner’s contribution of property or assets to the Partnership;
(n) the exercise, directly or indirectly, through any attorney-in-fact acting under a general or limited power of attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(o) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(p) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest, pursuant to contractual or other arrangements with such Person;
(q) the making, execution and delivery of any and all deeds, leases, notes, deeds to secure debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate in the judgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement;
(r) the issuance of additional Partnership Units, as appropriate and in the General Partner’s sole and absolute discretion, in connection with Capital Contributions by Additional Limited Partners and additional Capital Contributions by Partners pursuant to Section 4 hereof;
(s) the selection and dismissal of Partnership Employees (including employees having titles or offices such as president, vice president, secretary and treasurer), and agents, outside attorneys, accountants, consultants and contractors of the Partnership or the General Partner, the determination of their compensation and other terms of employment or hiring and the delegation to any such Partnership Employee the authority to conduct the business of the Partnership in accordance with the terms of this Agreement; and
(t) an election to dissolve the Partnership pursuant to Section 13.1.2 hereof.
7.1.2 Except as provided in Section 14.2 hereof, the General Partner is authorized to execute, deliver and perform the above-mentioned agreements and transactions on behalf of the Partnership without any further act, approval or vote of the Partners, notwithstanding any other provision of this Agreement, the Act or any applicable law, rule or regulation. The execution, delivery or performance by the General Partner or the Partnership of any agreement authorized or permitted under this Agreement shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement or of any duty stated or implied by law or equity.
7.1.3 At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain working capital and other reserves in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
7.1.4 In exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner (including the General Partner) of any action taken by it. The General Partner and the Partnership shall not have liability to a Limited Partner under any circumstances as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner pursuant to its authority under this Agreement.
7.1.5 The General Partner may not take any action in contravention of this Agreement, including, without limitation:
(a) taking any action that would make it impossible to carry on the ordinary business of the Partnership, except as otherwise provided in this Agreement;
(b) possessing Property, or assigning any rights in specific Property, for other than a Partnership purpose except as otherwise provided in this Agreement, including Section 7.9;
(c) admitting a Person as a Partner, except as otherwise provided in this Agreement;
(d) performing any act that would subject a Limited Partner to liability as a general partner in any jurisdiction or any other liability except as otherwise provided in this Agreement or under the Act; or
(e) entering into any contract, mortgage, loan or other agreement that prohibits or restricts the ability of (a) the General Partner or the Partnership from satisfying its obligations under Section 8.5 hereof in full or (b) a Limited Partner from exercising its rights under Section 8.5 hereof to effect a Redemption in full, except, in either case, with the written consent of such Limited Partner adversely affected by the prohibition or restriction.
Appears in 2 contracts
Sources: Partnership Agreement (Arizona Land Income Corp), Limited Partnership Agreement (Arizona Land Income Corp)
Management. (a) The Managing General Partner of the Partnership generally shall conduct, direct and manage all activities of the Partnership generally, and the Managing General Partner of each Series shall conduct, direct and manage all activities of the Series for which it serves as Managing General Partner. Except as otherwise expressly provided in this Agreement, (i) all management powers over the business and affairs of the Partnership generally shall be exclusively vested in the Managing General Partner of the Partnership generally, and no Limited Partner or other General Partner shall have any management power over the business and affairs of (or authority to bind) the Partnership generally and (ii) all management powers over the business and affairs of each Series shall be exclusively vested in the Managing General Partner of such Series, and no Limited Partner or other General Partner shall have any management power over the business and affairs of (or authority to bind) such Series. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or that are granted to a Managing General Partner under any other provision of this Agreement, each Managing General Partner, subject to any approval required by Section 7.4, Section 7.5 7.3 or any other provision of this Agreement, shall have full power and authority to do all things and on such terms as it determines to be necessary or appropriate to conduct the business of the Partnership generally or the applicable Series, as the case may be, to exercise all powers set forth in Section 2.5 and to effectuate the purposes set forth in Section 2.4, including the following:
(i) the making of any expenditures, the lending or borrowing of money, the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtedness and the incurring of any other obligations;
(ii) the making of regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership and each Series (other than in connection with the matters set forth in Section 9.3);
(iii) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the applicable Series or the merger or other combination of the Partnership with or into another Person;
(iv) the use of the assets of the applicable Series (including cash on hand) for any purpose consistent with the terms of this Agreement;
(v) the negotiation, execution and performance of any contracts, conveyances or other instruments on behalf of the Partnership generally or the applicable Series;
(vi) the distribution of cash or property of the applicable Series;
(vii) the maintenance of separate or joint insurance policies for the benefit of the Partnership, any Series, any Partners or any Indemnitees;
(viii) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies or other relationships subject to the restrictions set forth in Section 2.4;
(ix) the control of any matters affecting the rights and obligations of the Partnership or the applicable Series, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigation, arbitration or mediation and the incurring of legal expense and the settlement of claims and litigation; and
(x) the indemnification of any Person against liabilities and contingencies to the extent permitted by law.
Appears in 2 contracts
Sources: Limited Partnership Agreement (Enbridge Energy Partners Lp), Contribution Agreement (Enbridge Energy Partners Lp)
Management. (a) The Managing General Partner of the Partnership generally shall conduct, direct and manage all activities of the Partnership generally, and the Managing General Partner of each Series shall conduct, direct and manage all activities of the Series for which it serves as Managing General Partner. A. Except as otherwise expressly provided in this Agreement, (i) all management powers over the business and affairs of the Partnership generally are and shall be exclusively vested in the Managing General Partner of the Partnership generally, and no Partner. The Limited Partner or other General Partner Partners shall not have any right to participate in or exercise control or management power over the business and affairs of (or authority to bind) the Partnership generally and (ii) all management powers over the business and affairs of each Series shall be exclusively vested in the Managing Partnership. The General Partner of such Series, and no may not be removed by the Limited Partner or other General Partner shall have any management power over the business and affairs of (or authority to bind) such SeriesPartners. In addition to the powers now or hereafter granted to a general partner of a limited partnership under applicable law or that which are granted to a Managing the General Partner under any other provision of this Agreement, each Managing the General Partner, subject to any approval required by Section 7.4, Section 7.5 or any other provision of this Agreement7.3 hereof, shall have full power and authority to do all things and on such terms as it determines to be deemed necessary or appropriate desirable by it to conduct the business of the Partnership generally or the applicable Series, as the case may bePartnership, to exercise all powers set forth in Section 2.5 3.2 hereof and to effectuate the purposes set forth in Section 2.43.1 hereof, including, without limitation:
(1) the execution, acknowledgement, verification, delivery, filing and recording, for and in the name of the Partnership, and, to the extent necessary, the General Partner and the Initial Limited Partner, of any and all documents and instruments, including the following:LCIF Merger Agreement and the performance of any and all acts required by applicable law or which GP-1 deems necessary or advisable in order to give effect to the consummation of the LCIF Merger;
(i2) the making of any expenditures, the lending lending, borrowing or guarantee of money (including, without limitation, making prepayments on loans and borrowing money to permit the Partnership to make distributions to its Partners in such amounts as will permit LXP (so long as LXP qualifies as a REIT) in general, including, without limitation, to avoid the payment of moneyany federal income tax (including, for this purpose, any excise tax pursuant to Section 4981 of the Code), to make distributions to its stockholders sufficient to permit LXP to maintain REIT status), the incurrence of inter-company indebtedness and the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtedness and the incurring of any other obligations;
(ii) the making of regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership and each Series (other than in connection with the matters set forth in Section 9.3);
(iii3) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the applicable Series Partnership or the merger or other combination of the Partnership with or into another Personentity (all of the foregoing subject to any prior approval only to the extent required by Section 7.3 hereof);
(iv4) the use of the assets of the applicable Series (including cash on hand) Partnership for any purpose consistent with the terms of this AgreementAgreement and on any terms the General Partner sees fit, and the making of capital contributions or loans to its Subsidiaries;
(v5) the management, operation, leasing, landscaping, repair, alteration, demolition or improvement of any real property or improvements owned by the Partnership or any Subsidiary of the Partnership;
(6) the negotiation, execution and performance of any contracts, conveyances or other instruments on behalf that the General Partner considers useful or necessary to the conduct of the Partnership generally Partnership's operations or the applicable Seriesimplementation of the General Partner's powers under this Agreement;
(vi7) the distribution of Partnership cash or property of the applicable Seriesother Partnership assets in accordance with this Agreement;
(vii) the maintenance of separate or joint insurance policies for the benefit of the Partnership, any Series, any Partners or any Indemnitees;
(viii) 8) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies or other relationships subject to joint ventures that the restrictions set forth in Section 2.4General Partner deems desirable;
(ix9) the control undertaking of any matters affecting action in connection with the rights and obligations Partnership's direct or indirect investment in its Subsidiaries or any other Person (including, without limitation, the contribution or loan of funds by the Partnership to such Persons);
(10) the determination of the fair market value of any Partnership property distributed in kind using such reasonable method of valuation as the General Partner may adopt;
(11) the exercise, directly or the applicable Seriesindirectly, through any attorney-in-fact acting under a general or limited power of attorney, of any right, including the bringing and defending of actions at law right to vote, appurtenant to any asset or in equity and otherwise engaging in investment held by the conduct of litigation, arbitration or mediation and the incurring of legal expense and the settlement of claims and litigationPartnership; and
(x12) the indemnification making, execution and delivery of any Person against liabilities and contingencies all deeds, leases, notes, deeds to secure debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate in the extent permitted by lawjudgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement.
B. At all times from and after the date hereof, the General Partner may cause the Partnership to obtain and maintain (i) casualty, liability and other insurance on the properties of the Partnership and (ii) liability insurance for the Indemnitees hereunder.
C. At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain any and all reserves, working capital accounts and other cash or similar balances in such amounts as the General Partner, in its sole discretion, deems appropriate and reasonable from time to time.
Appears in 2 contracts
Sources: Limited Partnership Agreement (Lepercq Corporate Income Fund L P), Limited Partnership Agreement (Lexington Realty Trust)
Management. (a) The Managing General Partner of the Partnership generally shall conduct, direct and manage all activities of the Partnership generally, and the Managing General Partner of each Series shall conduct, direct and manage all activities of the Series for which it serves as Managing General Partner. Except as otherwise expressly provided in this Agreement, (i) all management powers over the business and affairs of the Partnership generally are and shall be exclusively vested in the Managing General Partner of the Partnership generallyPartner, and no Limited Partner or other General Partner shall have any right to participate in or exercise control or management power over the business and affairs of (or authority to bind) the Partnership generally and (ii) all management powers over the business and affairs of each Series shall be exclusively vested in the Managing Partnership. The General Partner may not be removed by the Limited Partners, with or without cause, except with the consent of such Series, and no Limited Partner or other the General Partner shall have any management power over the business and affairs of (or authority to bind) such SeriesPartner. In addition to the powers now or hereafter granted to a general partner of a limited partnership under applicable law or that which are granted to a Managing the General Partner under any other provision of this Agreement, each Managing the General Partner, subject to any approval required by Section 7.4, Section 7.5 or any other provision of this Agreement7.3 hereof, shall have full power and authority to do all things and on such terms as deemed necessary, desirable or convenient by it determines to be necessary or appropriate to conduct the business of the Partnership generally or the applicable Series, as the case may bePartnership, to exercise all powers set forth in Section 2.5 3.2 hereof and to effectuate the purposes set forth in Section 2.43.1 hereof, including the followingincluding, without limitation:
(i) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money to permit the Partnership to make distributions to its Partners in such amounts as will permit STAG REIT (so long as STAG REIT desires to maintain its qualification as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Section 4981 of the Code) and to make distributions to its stockholders in amounts sufficient to permit STAG REIT to maintain its qualification as a REIT), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences evidence of indebtedness (including the securing of the same by deed, mortgage, deed of trust or other lien or encumbrance on the Partnership’s assets) and the incurring of any other obligationsobligations it deems necessary for the conduct of the activities of the Partnership;
(ii) the making of tax, regulatory and other filingsfilings or elections, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership and each Series (other than in connection with the matters set forth in Section 9.3)Partnership;
(iii) the acquisition, dispositionsale, mortgagelease, pledgetransfer, encumbrance, hypothecation exchange or exchange other disposition of any or all of the assets of the applicable Series Partnership (including the exercise or grant of any conversion, option, privilege, or subscription right or other right available in connection with any assets at any time held by the Partnership) or the merger or other combination of the Partnership with or into another Personentity (all of the foregoing subject to any prior approval only to the extent required by Section 7.3 or 8.9 hereof);
(iv) the mortgage, pledge, encumbrance or hypothecation of any assets of the Partnership, the use of the assets of the applicable Series Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms that it sees fit, including, without limitation, the financing of the conduct of the operations of the Partnership, the General Partner, STAG REIT or any of the Partnership’s, the General Partner’s or STAG REIT’s Subsidiaries, the lending of funds to other Persons (including, without limitation, the Subsidiaries of the Partnership, the General Partner and/or STAG REIT) and the repayment of obligations of the Partnership and its Subsidiaries and any other Person in which it has an equity investment, and the making of capital contributions to its Subsidiaries;
(v) the negotiation, execution execution, delivery and performance of any contracts, conveyances or other instruments on behalf that the General Partner considers useful or necessary or convenient to the conduct of the Partnership generally Partnership’s operations or the applicable Seriesimplementation of the General Partner’s powers under this Agreement, including, without limitation, contracting with consultants, accountants, legal counsel, other professional advisors and other agents and the payment of their expenses and compensation out of the Partnership’s assets;
(vi) the distribution of Partnership cash or property of the applicable Seriesother Partnership assets in accordance with this Agreement;
(vii) holding, managing, investing and reinvesting cash and other assets of the Partnership;
(viii) the collection and receipt of revenues and income of the Partnership;
(ix) the establishment of one or more divisions of the Partnership, the selection and dismissal of employees of the Partnership (including, without limitation, employees who may be designated as officers with titles such as “president,” “vice president,” “secretary” and “treasurer” of the Partnership), and agents, outside attorneys, accountants, consultants and contractors of the Partnership, and the determination of their compensation and other terms of employment or hiring;
(x) the maintenance of separate or joint such insurance policies for the benefit of the Partnership, any Series, any Partnership and the Partners as it deems necessary or any Indemniteesappropriate;
(viiixi) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventureslimited liability companies, real estate investment trusts, corporations, limited liability companies entities that are treated as REITs, “taxable REIT subsidiaries” or foreign corporations for federal income tax purposes, joint ventures or other relationships subject that it deems desirable (including, without limitation, the acquisition of interests in, and the contributions of property or the making of loans to, its, STAG REIT’s or the General Partner’s Subsidiaries and any other Person in which it has an equity investment from time to time or the restrictions set forth incurrence of indebtedness on behalf of such Persons or the guarantee of obligations of such Persons and the making of any tax, regulatory or other filing or election with respect to any of the foregoing Persons); provided, that as long as STAG REIT has determined to continue to qualify as a REIT, the Partnership may not engage in Section 2.4any such formation, acquisition or contribution that would cause STAG REIT to fail to qualify as a REIT;
(ixxii) the control of any matters affecting the rights and obligations of the Partnership or the applicable SeriesPartnership, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigationsettlement, compromise, submission to arbitration or mediation any other form of dispute resolution, or abandonment of, any claim, cause of action, liability, debt or damages, due or owing to or from the Partnership, the commencement or defense of suits, legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, and the incurring representation of the Partnership in all suits or legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, the incurrence of legal expense expense, and the settlement of claims and litigation; and
(x) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xiii) the undertaking of any action in connection with the Partnership’s direct or indirect investment in any Subsidiary or any other Person (including, without limitation, the contribution or loan of funds by the Partnership to such Persons);
(xiv) except as otherwise specifically set forth in this Agreement, the determination of the fair market value of any Partnership property distributed in kind using such reasonable method of valuation as the General Partner may adopt;
(xv) the enforcement of any rights against any Partner pursuant to representations, warranties, covenants and indemnities relating to such Partner’s contribution of property or assets to the Partnership;
(xvi) the exercise, directly or indirectly, through any attorney-in-fact acting under a general or limited power of attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(xvii) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(xviii) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest pursuant to contractual or other arrangements with such Person;
(xix) the making, execution, delivery and performance of any and all deeds, leases, notes, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary, appropriate or convenient, in the judgment of the General Partner, for the accomplishment of any of the powers of the General Partner enumerated in this Agreement;
(xx) the issuance of additional OP Units and other partnership interests, as appropriate, in connection with Capital Contributions by Additional Limited Partners and additional Capital Contributions by Partners pursuant to Article 4 hereof;
(xxi) the taking of any action necessary or appropriate to enable STAG REIT to qualify as a REIT;
(xxii) the management, operation, leasing, landscaping, repair, alteration, demolition, replacement or improvement of any Property;
(xxiii) an election to dissolve the Partnership pursuant to Section 13.1(c) hereof;
(xxiv) the amendment and restatement of Exhibit A hereto to reflect accurately at all times the Capital Contributions and Percentage Interests of the Partners as the same are adjusted from time to time to the extent necessary to reflect redemptions, Capital Contributions, the issuance of OP Units, the admission of any Additional Limited Partner or any Substituted Limited Partner or otherwise;
(xxv) the registration of any class of securities of the Partnership under the Securities Act or the Exchange Act, and the listing of any debt securities of the Partnership on any exchange; and
(xxvi) the taking of any and all acts necessary or prudent to ensure that the Partnership will not be classified as a “publicly traded partnership” under Code Section 7704.
(b) Each of the Limited Partners agrees that the General Partner is authorized to execute, deliver and perform the above-mentioned agreements and transactions on behalf of the Partnership without any further act, approval or vote of the Partners, notwithstanding any other provision of this Agreement (except as provided in Section 7.3), the Act or any applicable law, rule or regulation, to the fullest extent permitted under the Act or other applicable law, rule or regulation. The execution, delivery or performance by the General Partner or the Partnership of any agreement authorized or permitted under this Agreement shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement or of any duty stated or implied by law or equity.
(c) At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain working capital accounts and other cash or similar balances in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
(d) In exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner of any action taken by it. The General Partner and the Partnership shall not be liable to a Limited Partner under any circumstances as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner taken pursuant to its authority under this Agreement and in accordance with the terms of Section 7.3.
Appears in 2 contracts
Sources: Agreement of Limited Partnership (STAG Industrial, Inc.), Agreement of Limited Partnership (STAG Industrial, Inc.)
Management. (a) The Managing General Partner of the Partnership generally shall conduct, direct and manage all activities of the Partnership generally, and the Managing General Partner of each Series shall conduct, direct and manage all activities of the Series for which it serves as Managing General Partner. A. Except as otherwise expressly provided in this Agreement, (i) all management powers over the business and affairs of the Partnership generally are and shall be exclusively vested in the Managing General Partner of the Partnership generallyPartner, and no Limited Partner or other General Partner shall have any right to participate in or exercise control or management power over the business and affairs of (or authority to bind) the Partnership generally and (ii) all management powers over the business and affairs of each Series shall be exclusively vested in the Managing Partnership. The General Partner of such Series, and no may not be removed by the Limited Partner Partners with or other General Partner shall have any management power over the business and affairs of (or authority to bind) such Serieswithout cause. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or that which are granted to a Managing the General Partner under any other provision of this Agreement, each Managing the General Partner, subject to any approval required by Section 7.4, Section 7.5 or any other provision of this Agreement, Partner shall have full power and authority to do all things and on such terms as it determines to be deemed necessary or appropriate desirable by it to conduct the business of the Partnership generally or the applicable Series, as the case may bePartnership, to exercise all powers set forth in Section 2.5 3.2 hereof, and to effectuate the purposes set forth in Section 2.43.1 hereof, including the followingincluding, without limitation:
(ia) the making of any expenditures, the lending or borrowing of money, including, without limitation, making prepayments on loans and borrowing money to permit the Partnership to make distributions to its Partners in such amounts as will enable the General Partner to make distributions to Kramont OP sufficient to permit Kramont OP to make distributions to the Company sufficient to permit the Company (so long as the Company qualifies as a REIT) to avoid the payment of any Federal income tax (including, for this purpose, any excise tax pursuant to section 4981 of the Code) and to make distributions to its shareholders in amounts sufficient to permit the Company to maintain REIT status, (b) the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, (c) the issuance of evidences of indebtedness and (including the securing of the same by deed, mortgage, deed of trust, or other lien or encumbrance on the Partnership's assets), (d) the incurring of any other obligationsobligations it deems necessary for the conduct of the activities of the Partnership, and (e) the execution and delivery, on the Partnership's behalf, of evidences of indebtedness and documents granting security for the payment thereof (with or without warrant of attorney to confess judgment against the Partnership upon default) and, without limiting the generality of the foregoing, the granting of a warrant of attorney to confess judgment against the Partnership;
(ii2) the making of regulatory tax, regulatory, and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership and each Series (other than in connection with the matters set forth in Section 9.3)Partnership;
(iii3) the acquisition, disposition, transfer, mortgage, pledge, encumbrance, hypothecation hypothecation, or exchange of any or all of the assets of the applicable Series Partnership (including the exercise or grant of any conversion, option, privilege, or subscription right or other right available in connection with any assets at any time held by the Partnership), or the merger or other combination or conversion of the Partnership with or into another Person;
entity; provided that (iva) the use no disposition of the assets an interest in a property listed on Exhibit E (whether by disposition of the applicable Series (including cash on hand) for any purpose consistent with the terms of this Agreement;
(v) the negotiation, execution and performance of any contracts, conveyances such property or other instruments on behalf of the Partnership generally or the applicable Series;
(vi) the distribution of cash or property of the applicable Series;
(vii) the maintenance of separate or joint insurance policies for the benefit by disposition of the Partnership, any Series, any Partners or any Indemnitees;
(viii's interest in an Entity owning such property) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies or other relationships subject may be made prior to the restrictions set forth in Section 2.4;
date listed with respect to such property on Exhibit E (ixbut only to the extent the Person identified with reference to the property on Exhibit E is a Limited Partner hereunder), without the consent of each individual listed with respect to such property on Exhibit E (b) the control of any matters affecting the rights and obligations of the Partnership or the applicable Series, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigation, arbitration or mediation and the incurring of legal expense and the settlement of claims and litigation; and
(x) prior to August 1, 2000, except with the indemnification consent or at the request of any Person against liabilities Meshon and contingencies ▇▇▇▇ ▇▇▇▇▇ (but only to the extent permitted by law.each is a Limited Partner hereunder), in the case of the Woodbourne Square Shopping Center shopping center, (y) prior to August 1, 1998, except with the consent or at the request of Meshon, in the case of the Rio Grande Plaza shopping center, or (z) prior to July 31, 2002, except with the consent or at the request of Meshon and ▇▇▇▇ ▇▇▇▇▇ (but only to the extent each is a Limited Partner hereunder), in the case of the Chesterbrook Shopping Center Plaza shopping center, or, notwithstanding clauses (x), (y),and (z), except as required under the Master Agreement, the Partnership shall take no action (other than making capital improvements to the property involved, causing a sale not otherwise prohibited hereunder of the property involved or the Partnership's interest therein, making the principal amortization payments scheduled under the respective loan documents in effect on the date hereof, or issuing additional Partnership Interests under Section 4.3) which, of itself, would cause a reduction in the share of Meshon or ▇▇▇▇ ▇▇▇▇▇, (but only to the extent each is a Limited Partner hereunder) of the liabilities to which the Rio Grande Plaza, Woodbourne Square Shopping Center and Chesterbrook Shopping Center Plaza shopping centers are subject, if such reduction would, of itself, cause a realization or recognition of income to Meshon or ▇▇▇▇ ▇▇▇▇▇ (to the extent a party hereto); provided that the consent of any individual described in this Section 7.1A(3) shall not be required after such individual's death;
Appears in 2 contracts
Sources: Merger Agreement (Cv Reit Inc), Merger Agreement (Kranzco Realty Trust)
Management. (a) The Managing General Partner of the Partnership generally shall conduct, direct and manage all activities of the Partnership generally, and the Managing General Partner of each Series shall conduct, direct and manage all activities of the Series for which it serves as Managing General Partner. A. Except as otherwise expressly provided in this Agreement, (i) all management powers over the business and affairs of the Partnership generally shall be are exclusively vested in the Managing General Partner of the Partnership generallyPartner, and no Limited Partner or other General Partner shall have any right to participate in or exercise control or management power over the business and affairs of (or authority to bind) the Partnership generally and (ii) all management powers over the business and affairs of each Series shall be exclusively vested in the Managing Partnership. The General Partner may not be removed by the Limited Partners with or without cause, except with the consent of such Series, and no Limited Partner or other the General Partner shall have any management power over the business and affairs of (or authority to bind) such SeriesPartner. In addition to the powers now or hereafter granted a general partner of a limited partnership under the Act and other applicable law or that which are granted to a Managing the General Partner under any other provision of this Agreement, each Managing the General Partner, subject to any approval required by the other provisions hereof including Section 7.4, Section 7.5 or any other provision of this Agreement7.3, shall have full power and authority to do all things and on such terms as it determines to be deemed necessary or appropriate desirable by it to conduct the business of the Partnership generally or the applicable Series, as the case may bePartnership, to exercise all powers set forth in Section 2.5 3.2 and to effectuate the purposes set forth in Section 2.43.1, including the followingincluding, without limitation:
(i) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money to permit the Partnership to make distributions to its Partners in such amounts as will permit the General Partner (for so long as the General Partner has determined to qualify as a REIT) to avoid the payment of any Federal income tax (including, for this purpose, any excise tax pursuant to Section 4981 of the Code) and to make distributions to its stockholders sufficient to permit the General Partner to maintain REIT status), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtedness (including the securing of same by mortgage, deed of trust or other lien or encumbrance on all or any of the Partnership's assets) and the incurring of any other obligationsobligations it deems necessary for the conduct of the activities of the Partnership;
(ii) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership and each Series (other than in connection with the matters set forth in Section 9.3)Partnership;
(iii) subject to the provisions of Section 7.3.D, the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the applicable Series Partnership or the merger or other combination of the Partnership with or into another Personentity;
(iv) the mortgage, pledge, encumbrance or hypothecation of all or any assets of the Partnership, and the use of the assets of the applicable Series Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms it sees fit, including, without limitation, the financing of the conduct or the operations of the General Partner or the Partnership, the lending of funds to other Persons (including, without limitation, the General Partner (if necessary to permit the financing or capitalization of a subsidiary of the General Partner or the Partnership) and any Subsidiaries of the Partnership) and the repayment of obligations of the Partnership, any of its Subsidiaries and any other Person in which it has an equity investment;
(v) the negotiation, execution execution, and performance of any contracts, leases, conveyances or other instruments on behalf that the General Partner considers useful or necessary to the conduct of the Partnership generally Partnership's operations or the applicable Seriesimplementation of the General Partner's powers under this Agreement;
(vi) the distribution of Partnership cash or property of the applicable Seriesother Partnership assets in accordance with this Agreement;
(vii) the selection and dismissal of employees of the Partnership (including, without limitation, employees having titles such as "president," "vice president," "secretary" and "treasurer"), and agents, outside attorneys, accountants, consultants and contractors of the Partnership, the determination of their compensation and other terms of employment or hiring, including waivers of conflicts of interest and the payment of their expenses and compensation out of the Partnership's assets;
(viii) the maintenance of separate or joint such insurance policies for the benefit of the Partnership, any Series, any Partnership and the Partners as it deems necessary or any Indemniteesappropriate;
(viiiix) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies ventures or other relationships subject that it deems desirable (including, without limitation, the acquisition of interests in, and the contributions of property to any Subsidiary and any other Person in which it has an equity investment from time to time); provided that, as long as the restrictions set forth General Partner has determined to continue to qualify as a REIT, the Partnership may not engage in Section 2.4any such formation, acquisition or contribution that would cause the General Partner to fail to qualify as a REIT;
(ixx) the control of any matters affecting the rights and obligations of the Partnership or the applicable SeriesPartnership, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigation, arbitration or mediation litigation and the incurring of legal expense and the settlement of claims and litigation; and
(x) , and the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xi) the undertaking of any action in connection with the Partnership's direct or indirect investment in any Person (including, without limitation, contributing or loaning Partnership funds to, incurring indebtedness on behalf of, or guarantying the obligations of any such Persons);
(xii) subject to the other provisions in this Agreement, the determination of the fair market value of any Partnership property distributed in kind using such reasonable method of valuation as it may adopt; provided that, such methods are otherwise consistent with requirements of this Agreement;
(xiii) the management, operation, leasing, landscaping, repair, alteration, demolition or improvement of any real property or improvements owned by the Partnership or any Subsidiary of the Partnership or any Person in which the Partnership has made a direct or indirect equity investment;
(xiv) holding, managing, investing and reinvesting cash and other assets of the Partnership;
(xv) the collection and receipt of revenues and income of the Partnership;
(xvi) the exercise, directly or indirectly through any attorney-in-fact acting under a general or limited power of attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(xvii) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(xviii) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest, pursuant to contractual or other arrangements with such Person; and
(xix) the making, execution and delivery of any and all deeds, leases, notes, deeds to secure debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or other agreements in writing necessary or appropriate in the judgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement.
B. Each of the Limited Partners agrees that the General Partner is authorized to execute, deliver and perform the above-mentioned agreements and transactions on behalf of the Partnership without any further act, approval or vote of the partners, notwithstanding any other provisions of this Agreement (except as provided in Section 7.3), the Act or any applicable law, rule or regulation. The execution, delivery or performance by the General Partner or the
Appears in 2 contracts
Sources: Limited Partnership Agreement (Amb Property Corp), Limited Partnership Agreement (Amb Property Lp)
Management. (a) The Managing General Partner of the Partnership generally shall conduct, direct and manage all activities of the Partnership generally, and the Managing General Partner of each Series shall conduct, direct and manage all activities of the Series for which it serves as Managing General Partner. A. Except as otherwise expressly provided in this Agreement, (i) all management powers over the business and affairs of the Partnership generally are and shall be exclusively vested in the Managing General Partner of the Partnership generallyPartner, and no Limited Partner or other General Partner shall have any right to participate in or exercise control or management power over the business and affairs of (or authority to bind) the Partnership generally and (ii) all management powers over the business and affairs of each Series shall be exclusively vested in the Managing Partnership. The General Partner may not be removed by the Limited Partners with or without cause, except with the consent of such Series, and no Limited Partner or other the General Partner shall have any management power over the business and affairs of (or authority to bind) such SeriesPartner. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or that which are granted to a Managing the General Partner under any other provision of this Agreement, each Managing the General Partner, subject to any approval required by Section 7.4, Section 7.5 or any other provision of this Agreement7.3 hereof, shall have full power and authority to do all things and on such terms as it determines to be deemed necessary or appropriate desirable by it to conduct the business of the Partnership generally or the applicable Series, as the case may bePartnership, to exercise all powers set forth in Section 2.5 3.2 hereof and to effectuate the purposes set forth in Section 2.43.1 hereof, including the followingincluding, without limitation:
(i1) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtedness (including the securing of same by deed to secure debt, mortgage, deed of trust or other lien or encumbrance on the Partnership's assets) and the incurring of any other obligationsobligations it deems necessary for the conduct of the activities of the Partnership;
(ii2) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership and each Series (other than in connection with the matters set forth in Section 9.3)Partnership;
(iii3) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the applicable Series Partnership (including the exercise or grant of any conversion, option, privilege, or subscription right or other right available in connection with any assets at any time held by the Partnership) or the merger or other combination of the Partnership with or into another Personentity;
(iv4) the use of the assets of the applicable Series Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms it sees fit, including, without limitation, the financing of the conduct of the operations of the General Partner, the Partnership or any of the Partnership's Subsidiaries, the lending of funds to other Persons (including, without limitation, the Partnership's Subsidiaries) and the repayment of obligations of the Partnership and its Subsidiaries and any other Person in which it has an equity investment and the making of capital contributions to its Subsidiaries;
(v5) the management, operation, leasing, landscaping, repair, alteration, demolition or improvement of any real property or improvements owned by the General Partner, the Partnership of any of the Partnership's Subsidiaries;
(6) the negotiation, execution execution, and the performance of any contracts, conveyances or other instruments on behalf that the General Partner considers useful or necessary to the conduct of the Partnership generally Partnership's operations or the applicable Seriesimplementation of the General Partner's powers under this Agreement, including contracting with contractors, developers, consultants, accountants, legal counsel, other professional advisors and other agents and the payment of their expenses and compensation out of the Partnership's assets;
(vi7) the distribution of Partnership cash or property of the applicable Seriesother Partnership assets in accordance with this Agreement;
(vii8) holding, managing, investing and reinvesting cash and other assets of the Partnership;
(9) the collection and receipt of revenues and income of the Partnership;
(10) the establishment of one or more divisions of the Partnership, the selection and dismissal of employees of the Partnership, any division of the Partnership, or the General Partner (including, without limitation, employees having titles such as "president," "vice president," "secretary" and "treasurer" of the Partnership, any division of the Partnership, or the General Partner), and agents, outside attorneys, accountants, consultants and contractors of the General Partner, the Partnership or any division of the Partnership, and the determination of their compensation and other terms of employment or hiring;
(11) the maintenance of separate or joint such insurance policies for the benefit of the Partnership, any Series, any Partnership and the Partners as it deems necessary or any Indemniteesappropriate;
(viii12) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies ventures or other relationships subject that it deems desirable (including, without limitation, the acquisition of interests in, and the contributions of property to, its Subsidiaries and any other Person in which it has an equity investment from time to the restrictions set forth in Section 2.4time);
(ix13) the control of any matters affecting the rights and obligations of the Partnership or the applicable SeriesPartnership, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigationsettlement, compromise, submission to arbitration or mediation any other form of dispute resolution, or abandonment of any claim, cause of action, liability, debt or damages due or owing to or from the Partnership, the commencement or defense of suits, legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, and the representation of the Partnership in all suits or legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, the incurring of legal expense expense, and the settlement of claims and litigation; and
(x) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(14) the undertaking of any action in connection with the Partnership's direct or indirect investment in its Subsidiaries or any other Person (including, without limitation, the contribution or loan of funds by the Partnership to such Persons);
(15) the determination of the fair market value of any Partnership property distributed in kind using such reasonable method of valuation as it may adopt;
(16) the exercise, directly or indirectly through any attorney-in-fact acting under a general or limited power of attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(17) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(18) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest pursuant to contractual or other arrangements with such Person;
(19) the making, execution and delivery of any and all deeds, leases, notes, deeds to secure debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate in the judgment of the General Partner for the accomplishment of any of the powers of the General Partner; and
(20) the distribution of cash to acquire Partnership Units held by a Limited Partner in connection with a Limited Partner's exercise of its Redemption Right under Section 8.6.
B. Each of the Limited Partners agrees that the General Partner is authorized to execute, deliver and perform the above-mentioned agreements and transactions on behalf of the Partnership without any further act, approval or vote of the Partners, notwithstanding any other provision of this Agreement, the Act or any applicable law, rule or regulation, to the fullest extent permitted under the Act or other applicable law. The execution, delivery or performance by the General Partner or the Partnership of any agreement authorized or permitted under this Agreement shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or an other Persons under this Agreement or of any duty stated or implied by law or equity.
C. At all times from and after the date hereof, the General Partner at the expense of the Partnership, may or may not, cause the Partnership to obtain and maintain (i) casualty, liability and other insurance on the properties of the Partnership and (ii) liability insurance for the Indemnitees hereunder.
D. At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain at any and all times working capital accounts and other cash or similar balances in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
E. The General Partner shall have the full power and authority in the name and on behalf of the Partnership in its capacity as the General Partner, to take all such actions and to execute, deliver, and file all such agreements, instruments, reports and documents as may be necessary or advisable in connection with the formation of the General Partner, the issuance of Units in connection with a proposed transaction or any transactions described in or contemplated by the General Partner's Registration Statement on Form S-1 as may be filed with the Securities and Exchange Commission.
F. Notwithstanding anything to the contrary contained in this Agreement, any agreement of merger or consolidation of the Partnership entered into in accordance with the provisions of this Agreement may, as provided in Section 17- 211(g) of the Delaware Revised Uniform Limited Partnership Act, (1) effect any amendment to this Agreement or (2) effect the adoption of a new partnership agreement for the Partnership if it is the surviving or resulting limited partnership in the merger or consolidation (provided that no such amendment shall be so effected if it would, under Section 7.3 hereof, require the consent of the Limited Partners (unless the requisite consent or consents shall be obtained), and no provision shall be included in any such new partnership agreement if such provision would, under Section 7.3 hereof, require the consent of the Limited Partners if it were being incorporated in this Agreement by amendment (unless the requisite consent shall be obtained).
Appears in 2 contracts
Sources: Agreement of Limited Partnership (Cavanaughs Hospitality Corp), Agreement of Limited Partnership (Cavanaughs Hospitality Corp)
Management. (a) The Managing General Partner of the Partnership generally shall conduct, direct and manage all activities of the Partnership generally, and the Managing General Partner of each Series shall conduct, direct and manage all activities of the Series for which it serves as Managing General Partner. A. Except as otherwise expressly provided in this Agreement, (i) all management powers over the business and affairs of the Partnership generally are and shall be exclusively vested in the Managing General Partner of the Partnership generallyPartner, and no Limited Partner or other General Partner shall have any right to participate in or exercise control or management power over the business and affairs of (or authority to bind) the Partnership generally and (ii) all management powers over the business and affairs of each Series shall be exclusively vested in the Managing Partnership. The General Partner may not be removed by the Partners with or without cause, except with the consent of such Series, and no Limited Partner or other the General Partner shall have any management power over the business and affairs of (or authority to bind) such SeriesPartner. In addition to the powers now or hereafter granted to a general partner of a limited partnership under applicable law or that are granted to a Managing the General Partner under any other provision of this Agreement, each Managing the General Partner, subject to any approval required by the other provisions hereof including Section 7.4, Section 7.5 or any other provision of this Agreement7.3, shall have full power and authority to do all things and on such terms as it determines to be deemed necessary or appropriate desirable by it to conduct the business of the Partnership generally or the applicable Series, as the case may bePartnership, to exercise all powers set forth in Section 2.5 3.2 hereof and to effectuate the purposes set forth in Section 2.43.1 hereof, including the followingincluding, without limitation:
(i) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money or selling assets to permit the Partnership to make distributions to its Partners in such amounts as will permit the Parent (so long as the Parent desires to maintain or restore its status as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Code Section 4981) and to make distributions to its stockholders sufficient to permit the Parent to maintain or restore REIT status or otherwise to satisfy the REIT Requirements), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtedness (including the securing of same by deed to secure debt, mortgage, deed of trust or other lien or encumbrance on the Partnership's assets) and the incurring of any other obligationsobligations that it deems necessary for the conduct of the activities of the Partnership;
(ii) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership, the registration of any class of securities of the Partnership under the Exchange Act and each Series (other than in connection with the matters set forth in Section 9.3)listing of any debt securities of the Partnership on any exchange;
(iii) the acquisition, dispositionsale, mortgagelease, pledgetransfer, encumbranceexchange or other disposition of any, hypothecation all or exchange of any or substantially all of the assets of the applicable Series Partnership (including, but not limited to, the exercise or grant of any conversion, option, privilege or subscription right or any other right available in connection with any assets at any time held by the Partnership) or the merger merger, consolidation, reorganization or other combination of the Partnership with or into another Personentity;
(iv) the mortgage, pledge, encumbrance or hypothecation of any assets of the Partnership, the use of the assets of the applicable Series Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms that it sees fit, including, without limitation, the financing of the operations and activities of the General Partner, the Partnership or any of the Partnership's Subsidiaries, the lending of funds to other Persons (including, without limitation, the Partnership's Subsidiaries) and the repayment of obligations of the Partnership, its Subsidiaries and any other Person in which the Partnership has an equity investment, and the making of capital contributions to and equity investments in the Partnership's Subsidiaries;
(v) the management, operation, leasing, landscaping, repair, alteration, demolition, replacement or improvement of any Property, including, without limitation, any Contributed Property, or other asset of the Partnership or any Subsidiary, whether pursuant to a Services Agreement or otherwise;
(vi) the negotiation, execution and performance of any contracts, leases, conveyances or other instruments on behalf that the General Partner considers useful or necessary to the conduct of the Partnership generally Partnership's operations or the applicable Series;
(vi) the distribution of cash or property implementation of the applicable SeriesGeneral Partner's powers under this Agreement, including contracting with contractors, developers, consultants, accountants, legal counsel, other professional advisors and other agents and the payment of their expenses and compensation out of the Partnership's assets;
(vii) the distribution of Partnership cash or other Partnership assets in accordance with this Agreement, the holding, management, investment and reinvestment of cash and other assets of the Partnership and the collection and receipt of revenues, rents and income of the Partnership;
(viii) the maintenance of separate or joint such insurance policies for the benefit of the PartnershipPartnership and the Partners as it deems necessary or appropriate, any Seriesincluding, any Partners or any Indemniteeswithout limitation, (i) casualty, liability and other insurance on the Properties and (ii) liability insurance for the Indemnitees hereunder;
(viiiix) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies companies, joint ventures or other relationships subject that it deems desirable (including, without limitation, the acquisition of interests in, and the contributions of property to, any Subsidiary and any other Person in which it has an equity investment from time to time); provided, however, that, as long as the restrictions set forth Parent has determined to continue to qualify as a REIT, the General Partner may not engage in any such formation, acquisition or contribution that would cause the Parent to fail to qualify as a REIT within the meaning of Code Section 2.4856(a);
(ixx) the control of any matters affecting the rights and obligations of the Partnership or the applicable SeriesPartnership, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigationsettlement, compromise, submission to arbitration or mediation any other form of dispute resolution, or abandonment, of any claim, cause of action, liability, debt or damages, due or owing to or from the Partnership, the commencement or defense of suits, legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, and the representation of the Partnership in all suits or legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, the incurring of legal expense expense, and the settlement of claims and litigation; and
(x) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xi) the undertaking of any action in connection with the Partnership's direct or indirect investment in any Subsidiary or any other Person (including, without limitation, the contribution or loan of funds by the Partnership to such Persons);
(xii) except as otherwise specifically set forth in this Agreement, the determination of the fair market value of any Partnership property distributed in-kind using such reasonable method of valuation as it may adopt; provided that such methods are otherwise consistent with the requirements of this Agreement;
(xiii) the enforcement of any rights against any Partner pursuant to representations, warranties, covenants and indemnities relating to such Partner's contribution of property or assets to the Partnership;
(xiv) the exercise, directly or indirectly, through any attorney-in-fact acting under a general or limited power-of-attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(xv) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(xvi) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest, pursuant to contractual or other arrangements with such Person;
(xvii) the making, execution and delivery of any and all deeds, leases, notes, deeds to secure debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate in the judgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement;
(xviii) the issuance of additional Partnership Units, as appropriate and in the General Partner's sole and absolute discretion, in connection with Capital Contributions by Additional Limited Partners and additional Capital Contributions by Partners pursuant to Article IV hereof;
(xix) the selection and dismissal of Company Employees (including, without limitation, employees having titles or offices such as president, vice president, secretary and treasurer), and agents, outside attorneys, accountants, consultants and contractors of the Partnership or the General Partner, the determination of their compensation and other terms of employment or hiring and the delegation to any such Company Employee the authority to conduct the business of the Partnership in accordance with the terms of this Agreement;
(xx) the distribution of cash to acquire Partnership Units held by a Limited Partner in connection with a Limited Partner's exercise of its Redemption Right under Section 8.6 hereof;
(xxi) the amendment and restatement of Exhibit A hereto to reflect accurately at all times the Capital Contributions and Percentage Interests of the Partners as the same are adjusted from time to time to the extent necessary to reflect redemptions, conversion of Earnout Units, Capital Contributions, the issuance of Partnership Units, the admission of any Additional Limited Partner or any Substituted Limited Partner or otherwise, which amendment and restatement, notwithstanding anything in this Agreement to the contrary, shall not be deemed an amendment to this Agreement, as long as the matter or event being reflected in Exhibit A hereto otherwise is authorized by this Agreement;
(xxii) the collection and receipt of revenues and income of the Partnership; and
(xxiii) an election to dissolve the Partnership pursuant to Section 13.1.D hereof.
B. Each of the Limited Partners agrees that, except as provided in Section 7.3 hereof, the General Partner is authorized to execute, deliver and perform the above-mentioned agreements and transactions on behalf of the Partnership without any further act, approval or vote of the Partners, notwithstanding any other provision of this Agreement, the Act or any applicable law, rule or regulation.
C. At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain working capital and other reserves in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
D. In exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner (including the General Partner) of any action taken (or not taken) by it. Except as may be provided in a separate written agreement between the Partnership and the Limited Partners, the General Partner and the Partnership shall not have liability to a Limited Partner under any circumstances as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner pursuant to its authority under this Agreement; provided that the General Partner has acted in good faith and pursuant to its authority under this Agreement.
Appears in 2 contracts
Sources: Limited Partnership Agreement (Feldman Mall Properties, Inc.), Agreement of Limited Partnership (Feldman Mall Properties, Inc.)
Management. (a) The Managing General Partner of the Partnership generally shall conduct, direct and manage all activities of the Partnership generally, and the Managing General Partner of each Series shall conduct, direct and manage all activities of the Series for which it serves as Managing General Partner. A. Except as otherwise expressly provided in this Agreement, (i) all management powers over the business and affairs of the Partnership generally are and shall be exclusively vested in the Managing General Partner of the Partnership generallyPartner, and no Limited Partner or other General Partner shall have any right to participate in or exercise control or management power over the business and affairs of (or authority to bind) the Partnership generally and (ii) all management powers over the business and affairs of each Series shall be exclusively vested in the Managing Partnership. The General Partner of such Series, and no may not be removed by the Limited Partner Partners with or other General Partner shall have any management power over the business and affairs of (or authority to bind) such Serieswithout cause. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or that which are granted to a Managing the General Partner under any other provision of this Agreement, each Managing the General Partner, subject to any approval required by Section 7.4, Section 7.5 or any the other provision of this Agreementprovisions hereof including Sections 7.3 and 11.2, shall have full power and authority to do all things and on such terms as it determines to be deemed necessary or appropriate desirable by it to conduct the business of the Partnership generally or the applicable Series, as the case may bePartnership, to exercise all powers set forth in Section 2.5 3.2 and to effectuate the purposes set forth in Section 2.43.1, including the followingincluding, without limitation:
(i1) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money to permit the Partnership to make distributions to its Partners in such amounts as will permit the General Partner (so long as the General Partner has determined to qualify as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Section 4981 of the Code) and to make distributions to its stockholders sufficient to permit the General Partner to maintain REIT status), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtedness (including the securing of same by mortgage, deed of trust or other lien or encumbrance on the Partnership's assets) and the incurring of any other obligationsobligations it deems necessary for the conduct of the activities of the Partnership;
(ii2) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership, the registration of any class of securities of the Partnership under the Securities Exchange Act of 1934, as amended, and each Series (other than in connection with the matters set forth in Section 9.3)listing of any debt securities of the Partnership on any exchange;
(iii3) subject to the provisions of Section 11.2, the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the applicable Series Partnership or the merger or other combination of the Partnership with or into another Personentity;
(iv4) the acquisition, disposition, mortgage, pledge, encumbrance or hypothecation of any assets of the Partnership, and the use of the assets of the applicable Series Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms it sees fit, including, without limitation, the financing of the conduct or the operations of the General Partner or the Partnership, the lending of funds to other Persons (including, without limitation, the General Partner or any Subsidiaries of the Partnership) and the repayment of obligations of the Partnership, any of its Subsidiaries and any other Person in which it has an equity investment, and the making of capital contributions to its Subsidiaries;
(v5) the management, operation, leasing, landscaping, repair, alteration, demolition or improvement of any real property or improvements owned by the Partnership or any Subsidiary of the Partnership;
(6) the negotiation, execution execution, and performance of any contracts, leases, conveyances or other instruments on behalf that the General Partner considers useful or necessary to the conduct of the Partnership generally Partnership's operations or the applicable Seriesimplementation of the General Partner's powers under this Agreement, including contracting with contractors, developers, consultants, accountants, legal counsel, other professional advisors and other agents and the payment of their expenses and compensation out of the Partnership's assets;
(vi7) the distribution of Partnership cash or property of the applicable Seriesother Partnership assets in accordance with this Agreement;
(vii8) the establishment of one or more divisions of the Partnership, the selection and dismissal of employees of the Partnership (including, without limitation, employees having titles such as "president," "vice president," "secretary" and "treasurer"), and agents, outside attorneys, accountants, consultants and contractors of the Partnership, the determination of their compensation and other terms of employment or hiring, including waivers of conflicts of interest and the payment of their expenses and compensation out of the Partnership's assets;
(9) the maintenance of separate or joint such insurance policies for the benefit of the Partnership, any Series, any Partnership and the Partners and directors and officers of the Partnership or any Indemniteesthe General Partner as it deems necessary or appropriate;
(viii10) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies ventures or other relationships subject that it deems desirable (including, without limitation, the acquisition of interests in, and the contributions of property to any Subsidiary and any other Person in which it has an equity investment from time to time); provided, that, as long as the restrictions set forth General Partner has determined to continue to qualify as a REIT, the Partnership may not engage in Section 2.4any such formation, acquisition or contribution that could cause the General Partner to fail to qualify as a REIT;
(ix11) the control of any matters affecting the rights and obligations of the Partnership or the applicable SeriesPartnership, including the bringing and defending settlement, compromise, submission to arbitration or any other form of actions at law dispute resolution, or in equity and otherwise engaging in abandonment of, any claim, cause of action, liability, debt or damages, due or owing to or from the conduct Partnership, the commencement or defense of litigationsuits, legal proceedings, administrative proceedings, arbitration or mediation other forms of dispute resolution, and the representation of the Partnership in all suits or legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, the incurring of legal expense expense, and the settlement of claims and litigation; and
(x) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(12) the undertaking of any action in connection with the Partnership's direct or indirect investment in any Person (including, without limitation, contributing or loaning Partnership funds to, incurring indebtedness on behalf of, or guarantying the obligations of any such Persons);
(13) subject to the other provisions in this Agreement, the determination of the fair market value of any Partnership property distributed in kind using such reasonable method of valuation as it may adopt, provided, that such methods are otherwise consistent with requirements of this Agreement;
(14) the management, operation, leasing, landscaping, repair, alteration, demolition or improvement of any real property or improvements owned by the Partnership or any Subsidiary of the Partnership or any Person in which the Partnership has made a direct or indirect equity investment;
(15) holding, managing, investing and reinvesting cash and other assets of the Partnership;
(16) the collection and receipt of revenues and income of the Partnership;
(17) the exercise, directly or indirectly through any attorney-in-fact acting under a general or limited power of attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(18) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(19) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest pursuant to contractual or other arrangements with such Person;
(20) the making, execution and delivery of any and all deeds, leases, notes, deeds to secure debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate in the judgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement;
(21) the issuance of additional Partnership interests, as appropriate, in connection with the contribution of Additional Funds pursuant to Section 4.3;
(22) the distribution of cash to acquire Partnership Units held by a Limited Partner in connection with a Limited Partner's exercise of its Redemption Right under Section 8.6 hereof; and
(23) the amendment and restatement of Exhibit A hereto to reflect accurately at all times the Capital Contributions and Percentage Interests of the Partners as the same are adjusted from time to time to the extent necessary to reflect redemptions, Capital Contributions, the issuance of Partnership Units, the admission of any Additional Limited Partner or any Substituted Limited Partner or otherwise, which amendment and restatement, notwithstanding anything in this Agreement to the contrary, shall not be deemed an amendment to this Agreement, as long as the matter or event being reflected in Exhibit A hereto otherwise is authorized by this Agreement.
B. Each of the Limited Partners agrees that the General Partner is authorized to execute, deliver and perform the above-mentioned agreements and transactions on behalf of the Partnership without any further act, approval or vote of the Partners, notwithstanding any other provisions of this Agreement (except as provided in Section 7.3 or 11.2), the Act or any applicable law, rule or regulation to the fullest extent permitted under the Act or other applicable law, rule or regulation. The execution, delivery or performance by the General Partner or the Partnership of any agreement authorized or permitted under this Agreement shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement or of any duty stated or implied by law or equity.
C. At all times from and after the date hereof, the General Partner may cause the Partnership to obtain and maintain (i) casualty, liability and other insurance on the properties of the Partnership and (ii) liability insurance for the Indemnities hereunder.
D. At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain working capital reserves in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
E. In exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner (including the General Partner) of any action taken (or not taken) by the General Partner. The General Partner and the Partnership shall not have liability to a Partner under this Agreement as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner pursuant to its authority under this Agreement.
F. Except as otherwise provided herein, to the extent the duties of the General Partner require expenditures of funds to be paid to third parties, the General Partner shall not have any obligations hereunder except to the extent that Partnership funds are reasonably available to it for the performance of such duties, and nothing herein contained shall be deemed to authorize or require the General Partner, in its capacity as such, to expend its individual funds for payment to third parties or to undertake any individual liability or obligation on behalf of the Partnership.
Appears in 2 contracts
Sources: Agreement of Limited Partnership (Maguire Properties Inc), Limited Partnership Agreement (Maguire Properties Inc)
Management. (a) The Managing General Partner of the Partnership generally shall conduct, direct and manage all activities of the Partnership generally, and the Managing General Partner of each Series shall conduct, direct and manage all activities of the Series for which it serves as Managing General Partner. Except as otherwise expressly provided in this Agreement, (i) all management powers over including the provisions of Section 8.02, the business and affairs of the Partnership generally shall be exclusively vested in and controlled by the Managing General Partner Partner.
(b) Subject to the provisions of Section 8.02, the Partnership generally, and no Limited Partner or other General Partner shall have the sole authority to authorize and approve any management power over matters pertaining to the Partnership's business and any matters pertaining to the business of any SPV, including, without limitation, the following matters:
(i) The making of any decision and affairs the implementing of any decision to acquire any Property, including any decision to admit (A) any additional Class B Interest Holders and/or any additional Class A Interest Holders and the terms and conditions upon which such admission will occur (including any decision to accept Capital Contributions from any such additional Class A Interest Holder and/or any additional Class B Interest Holder and any valuation thereof) and/or (B) accept additional Capital Contributions from any existing Partners for the purpose of acquiring one or more additional Properties;
(ii) Any financing, refinancing or securitization of any Property and the use of any proceeds thereof, including, without limitation, construction, interim and permanent financing, and any other financing or refinancing of the operations of the Partnership or any SPV and the execution and delivery of any documents, agreements or instruments evidencing, securing or relating to any such financing or any amendment, modification, extension or termination of (or making any material decision, taking any material action, providing any material consent or approval or waiving any material right under) any such documents, agreements or instruments;
(iii) Any restructuring, improvement, rehabilitation, alteration, repair, or completion of construction or reconstruction of all or any portion of any Property;
(iv) The establishment of reserves reasonably required in light of anticipated operational needs, acquisitions and contingent and non-contingent liabilities (or reserves retained for purposes of implementing Section 6.02 hereof), and the determination of the amount of available Operating Cash Flow and Capital Proceeds and the timing of any distributions of available Operating Cash Flow and Capital Proceeds or reserves retained for purposes of implementing Section 6.02 hereof;
(v) The institution of any legal proceedings in the name of the Partnership or any SPV, settlement of any legal proceedings against the Partnership or any SPV and confession of any judgment against the Partnership, any SPV or any property of the Partnership or any SPV or making any decision, taking any action, providing any consent or approval or waiving any rights thereunder;
(vi) All personnel matters involving the Partnership and any SPV, including, without limitation, the hiring or discharge of employees and contractors of the Partnership or any SPV, delegation of authority to bindany employees or contractors, establishment or amendment of employment policies and benefit plans, etc.;
(vii) Determining the amount of overhead and other reimbursements or any salary, compensation or other remuneration payable to any Partner or any of their Affiliates pursuant to the terms hereof or any separate agreement between the Partnership or any SPV and a Partner, or any of their Affiliates;
(viii) The appointment of the Partnership Accountant or any change in the Partnership Accountant or the selection of any other auditor or independent accounting firm for the Partnership or any SPV, or the making of any decision to change any other auditor or independent accounting firm of the Partnership or any SPV;
(A) The filing of any voluntary petition in bankruptcy on behalf of the Partnership or any SPV, (B) the consenting to the filing of any involuntary petition in bankruptcy against the Partnership or any SPV, (C) the filing of any petition seeking, or the consenting to, reorganization or relief under any applicable federal or state law relating to bankruptcy or insolvency by or on behalf of the Partnership or any SPV, (D) the consenting to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of the Partnership, any SPV or a substantial part of its or their property, (E) the making of any assignment for the benefit of creditors by or on behalf of the Partnership or any SPV, (F) the admission in writing of the Partnership's or any SPV's inability to pay its debts generally as they become due or (G) the taking of any action by the Partnership or any SPV in furtherance of any such action;
(x) The making of all material tax elections, determinations and other decisions under the Code and any decision to settle or compromise any matter raised by the Internal Revenue Service;
(iixi) Any sale, exchange, transfer or other disposition of all management powers over or any part of any Property, or any sale, transfer or other disposition of all or any part of the business Partnership's interest in any SPV and affairs the execution and delivery of each Series shall be exclusively vested any documents, agreements, contracts, binding letters of intent or other document or instrument relating thereto or any amendment, modification, extension or termination of (or making any material decision, taking any material action, providing any material consent or approval or waiving any material right under) any such agreement, contract, binding letter of intent or other document or instrument;
(xii) The Partnership's or any SPV's incurrence of any liabilities or obligations with regard to any debt or loan guaranties, letters of credit, hedge or hedging agreements, or any similar contingent liabilities;
(xiii) The making of any decision and the implementing of any decision to form an SPV and to assign, transfer or convey all or any portion of any Property or the rights to acquire any Property to such SPV and the execution and delivery of any documents, agreements or instruments implementing, evidencing or relating to any such decision or action (including any organizational documents relating to any SPV) or amending, modifying, extending or terminating of (or making any material decision, taking any material action, providing any material consent or approval or waiving any material rights under) any such document, agreement or other instrument;
(xiv) Any decision to dissolve, windup and terminate the Partnership or any SPV and any decision to distribute all or any portion of any Property (or any other property of the Partnership or any SPV) in kind; and
(xv) With regard to any SPV or any other Person in which the Managing Partnership holds a direct or indirect equity interest, the making of any decision, taking any action or providing any consent or approval with regard to any matter which might otherwise require an action by the Partnership.
(c) For matters requiring approval of the Management Board, the General Partner shall prepare and submit any necessary materials to the Management Board for its approval prior to taking any final action with respect to such matters.
(d) Subject to the terms of such Seriesthis Agreement and the limitations imposed by law, and no Limited Partner or other the General Partner shall have any management power over all of the business and affairs of (or authority to bind) such Series. In addition to the same powers now or hereafter granted as a general partner of a limited general partnership under applicable law the laws of the State of Delaware.
(e) The Limited Partners shall not have any right or that are granted power to a Managing General Partner under participate in or have any other provision of this Agreement, each Managing General Partner, subject to any approval required by Section 7.4, Section 7.5 control over the Partnership's or any other provision of this Agreement, shall have full power and authority SPV's business affairs or operations or to do all things and on such terms as it determines act for or to be necessary or appropriate to conduct the business of the Partnership generally or the applicable Series, as the case may be, to exercise all powers set forth in Section 2.5 and to effectuate the purposes set forth in Section 2.4, including the following:
(i) the making of any expenditures, the lending or borrowing of money, the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtedness and the incurring of any other obligations;
(ii) the making of regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership and each Series (other than in connection with the matters set forth in Section 9.3);
(iii) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the applicable Series or the merger or other combination of the Partnership with or into another Person;
(iv) the use of the assets of the applicable Series (including cash on hand) for any purpose consistent with the terms of this Agreement;
(v) the negotiation, execution and performance of any contracts, conveyances or other instruments on behalf of the Partnership generally or the applicable Series;
(vi) the distribution of cash or property of the applicable Series;
(vii) the maintenance of separate or joint insurance policies for the benefit of the Partnership, any Series, any Partners or any Indemnitees;
(viii) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies or other relationships subject to the restrictions set forth in Section 2.4;
(ix) the control of any matters affecting the rights and obligations of bind the Partnership or any SPV in any manner whatsoever, nor shall they be required or permitted to consent to, acquiesce in, vote on or approve any action or act taken or decision made by the applicable Series, including the bringing and defending of actions at law or in equity and General Partner except as otherwise engaging in the conduct of litigation, arbitration or mediation and the incurring of legal expense and the settlement of claims and litigation; and
(x) the indemnification of any Person against liabilities and contingencies to the extent permitted by lawspecifically provided herein.
Appears in 2 contracts
Sources: Limited Partnership Agreement (Heinz Hj Finance Co), Limited Partnership Agreement (Heinz Hj Finance Co)
Management. (a) The Managing General Partner of the Partnership generally shall conduct, direct and manage all activities of the Partnership generally, and the Managing General Partner of each Series shall conduct, direct and manage all activities of the Series for which it serves as Managing General Partner. Except as otherwise expressly provided in this Agreement, (i) all management powers over the business and affairs of the Partnership generally are and shall be exclusively vested in the Managing General Partner of the Partnership generallyPartner, and no Limited Partner or other General Partner shall have any right to participate in or exercise control or management power over the business and affairs of (or authority to bind) the Partnership generally and (ii) all management powers over the business and affairs of each Series shall be exclusively vested in the Managing Partnership. The General Partner may not be removed by the Limited Partners, except with the consent of such Series, and no Limited Partner or other the General Partner shall have any management power over the business and affairs of (or authority to bind) such SeriesPartner. In addition to the powers now or hereafter granted to a general partner of a limited partnership under applicable law or that are granted to a Managing the General Partner under any other provision of this Agreement, each Managing the General Partner, subject to any approval required by the other provisions hereof including Section 7.4, Section 7.5 or any other provision of this Agreement7.03, shall have full power and authority to do all things and on such terms as it determines to be deemed necessary or appropriate desirable by it to conduct the business of the Partnership generally or the applicable Series, as the case may bePartnership, to exercise all powers set forth in Section 2.5 3.02 hereof and to effectuate the purposes set forth in Section 2.43.01 hereof, including the followingincluding, without limitation:
(i) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money or selling assets to permit the Partnership to make distributions to its Partners in such amounts as will permit the General Partner (so long as the General Partner desires to maintain or restore its qualification as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Code Section 4981) and to make distributions to its stockholders sufficient to permit the General Partner to maintain or restore REIT qualification or otherwise to satisfy the REIT Requirements), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtedness (including the securing of same by deed to secure debt, mortgage, deed of trust or other lien or encumbrance on the Partnership’s assets) and the incurring of any other obligationsobligations that it deems necessary for the conduct of the activities of the Partnership;
(ii) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership, the registration of any class of securities of the Partnership under the Exchange Act and each Series (other than in connection with the matters set forth in Section 9.3)listing of any debt securities of the Partnership on any exchange;
(iii) subject to Section 11.02 hereof, the acquisition, dispositionsale, mortgagelease, pledgetransfer, encumbranceexchange or other disposition of any, hypothecation all or exchange of any or substantially all of the assets of the applicable Series Partnership (including, but not limited to, the exercise or grant of any conversion, option, privilege or subscription right or any other right available in connection with any assets at any time held by the Partnership) or the merger merger, consolidation, reorganization or other combination of the Partnership with or into another Personentity;
(iv) the mortgage, pledge, encumbrance or hypothecation of any assets of the Partnership, the use of the assets of the applicable Series Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms that it sees fit, including, without limitation, the financing of the operations and activities of the General Partner, the Partnership or any of the Partnership’s Subsidiaries, the lending of funds to other Persons (including, without limitation, the Partnership’s Subsidiaries) and the repayment of obligations of the Partnership, its Subsidiaries and any other Person in which the Partnership has an equity investment, and the making of capital contributions to and equity investments in the Partnership’s Subsidiaries;
(v) the use of the assets of the Partnership (including, without limitation, cash on hand) for any purpose consistent with the terms of this Agreement and on any terms it sees fit, including, without limitation, the financing of the conduct of the operations of the General Partner, the Partnership or any of the Partnership’s Subsidiaries, the lending of funds to other Persons (including, without limitation, the General Partner and its Subsidiaries and the Partnership’s Subsidiaries) and the repayment of obligations of the Partnership and its Subsidiaries and any other Person in which the Partnership has an equity investment and the making of capital contributions to its Subsidiaries;
(vi) the management, operation, leasing, landscaping, repair, alteration, demolition, replacement or improvement of any Property, including, without limitation, any Contributed Property, or other asset of the Partnership or any Subsidiary, whether pursuant to a Services Agreement or otherwise;
(vii) the negotiation, execution and performance of any contracts, leases, conveyances or other instruments on behalf that the General Partner considers useful or necessary to the conduct of the Partnership generally Partnership’s operations or the applicable Seriesimplementation of the General Partner’s powers under this Agreement, including contracting with contractors, developers, consultants, accountants, legal counsel, other professional advisors and other agents and the payment of their expenses and compensation out of the Partnership’s assets;
(viviii) the distribution of Partnership cash or property other Partnership assets in accordance with this Agreement, the holding, management, investment and reinvestment of cash and other assets of the applicable SeriesPartnership and the collection and receipt of revenues, rents and income of the Partnership;
(viiix) the maintenance of separate or joint such insurance policies for the benefit of the PartnershipPartnership and the Partners as the General Partner deems necessary or appropriate, any Seriesincluding, any Partners or any Indemniteeswithout limitation, (i) casualty, liability and other insurance on the Properties and (ii) liability insurance for the Indemnitees hereunder;
(viiix) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies companies, joint ventures or other relationships subject that the General Partner deems desirable (including, without limitation, the acquisition of interests in, and the contributions of property to, any Subsidiary and any other Person in which it has an equity investment from time to time); provided, however, that as long as the restrictions set forth General Partner has determined to continue to qualify as a REIT, the General Partner may not engage in any such formation, acquisition or contribution that would cause it to fail to qualify as a REIT within the meaning of Code Section 2.4856(a) (so long as the General Partner desires to maintain its qualification as a REIT);
(ixxi) the filing of applications, communicating and otherwise dealing with any and all governmental agencies having jurisdiction over, or in any way affecting, the Partnership’s assets or any other aspect of the Partnership business;
(xii) the control of any matters affecting the rights and obligations of the Partnership or the applicable SeriesPartnership, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigationsettlement, compromise, submission to arbitration or mediation any other form of dispute resolution, or abandonment, of any claim, cause of action, liability, debt or damages, due or owing to or from the Partnership, the commencement or defense of suits, legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, and the representation of the Partnership in all suits or legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, the incurring of legal expense expense, and the settlement of claims and litigation; and
(x) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xiii) the undertaking of any action in connection with the Partnership’s direct or indirect investment in any Subsidiary or any other Person (including, without limitation, the contribution or loan of funds by the Partnership to such Persons);
(xiv) except as otherwise specifically set forth in this Agreement, the determination of the fair market value of any Partnership property distributed in-kind using such reasonable method of valuation as it may adopt; provided, that such methods are otherwise consistent with the requirements of this Agreement;
(xv) the enforcement of any rights against any Partner pursuant to representations, warranties, covenants and indemnities relating to such Partner’s contribution of property or assets to the Partnership;
(xvi) the exercise, directly or indirectly, through any attorney-in-fact acting under a general or limited power-of-attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(xvii) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(xviii) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest, pursuant to contractual or other arrangements with such Person;
(xix) the making, execution and delivery of any and all deeds, leases, notes, deeds to secure Debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate in the judgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement;
(xx) the issuance of additional Partnership Units, as appropriate and in the General Partner’s sole and absolute discretion, in connection with Capital Contributions by Additional Limited Partners and additional Capital Contributions by Partners pursuant to Article IV hereof;
(xxi) the selection and dismissal of employees (including, without limitation, employees having titles or offices such as president, vice president, secretary and treasurer), and agents, outside attorneys, accountants, consultants and contractors of the Partnership or the General Partner, the determination of their compensation and other terms of employment or hiring and the delegation to any such employees the authority to conduct the business of the Partnership in accordance with the terms of this Agreement;
(xxii) the distribution of cash to acquire Partnership Units held by a Limited Partner in connection with a Limited Partner’s exercise of its Redemption right under Section 8.06 hereof;
(xxiii) the amendment and restatement of Exhibit A hereto to reflect accurately at all times the Capital Contributions and Percentage Interests of the Partners as the same are adjusted from time to time to the extent necessary to reflect redemptions, Capital Contributions, the issuance of Partnership Units, the admission of any Additional Limited Partner or any Substituted Limited Partner or otherwise, which amendment and restatement, notwithstanding anything in this Agreement to the contrary, shall not be deemed an amendment to this Agreement, as long as the matter or event being reflected in Exhibit A hereto otherwise is authorized by this Agreement;
(xxiv) the determination regarding whether a payment to a Partner who exercises its Redemption Right under Section 8.06 that is assumed by the General Partner will be paid in the form of the Cash Amount or the REIT Shares Amount, except as such determination may be limited by Section 8.06;
(xxv) the collection and receipt of revenues and income of the Partnership;
(xxvi) the registration of any class of securities of the Partnership under the Securities Act or the Exchange Act, and the listing of any debt securities of the Partnership on any exchange;
(xxvii) an election to dissolve the Partnership pursuant to Section 13.01(b) hereof; and
(xxviii) the taking of any action necessary or appropriate to enable the General Partner to qualify as a REIT (so long as the General Partner desires to maintain its qualification as a REIT).
(b) Each of the Limited Partners agrees that, except as provided in Section 7.03 hereof, the General Partner is authorized to execute, deliver and perform the above- mentioned agreements and transactions on behalf of the Partnership without any further act, approval or vote of the Partners, notwithstanding any other provision of this Agreement, the Act or any applicable law, rule or regulation.
(c) At all times from and after the Effective Date, the General Partner may cause the Partnership to establish and maintain working capital and other reserves in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
(d) In exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner (including the General Partner) of any action taken (or not taken) by it. Except as may be provided in a separate written agreement between the Partnership and the Limited Partners, the General Partner and the Partnership shall not have liability to a Limited Partner under any circumstances as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner pursuant to its authority under this Agreement provided, that the General Partner has acted in good faith and pursuant to its authority under this Agreement.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (ZAIS Financial Corp.), Merger Agreement (ZAIS Financial Corp.)
Management. (ai) The Managing General Partner of the Partnership generally shall conduct, direct and manage all activities of the Partnership generally, and the Managing General Partner of each Series shall conduct, direct and manage all activities of the Series for which it serves as Managing General Partner. Except as otherwise expressly provided in this Agreement, (i) all management powers over full, complete and exclusive discretion to manage and control the business and affairs of the Partnership generally are and shall be exclusively vested in the Managing General Partner of the Partnership generallyPartner, and no Limited Partner or other General Partner shall have any right to participate in or exercise control or management power over the business and affairs of (or authority to bind) the Partnership generally and Partnership.
(ii) all management powers over the business and affairs of each Series shall be exclusively vested in the Managing The General Partner of such Series, and no Limited may not be removed by the Associate General Partner or other General Partner shall have any management power over the business and affairs of Limited Partners with or without cause.
(or authority to bindiii) such Series. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or that which are granted to a Managing the General Partner under any other provision of this Agreement, each Managing the General Partner, subject to any approval required by Section 7.4, Section 7.5 or any other provision of this Agreement, Partner shall have full power and authority to do all things and on such terms as it determines to be deemed necessary or appropriate desirable by it to conduct the business of the Partnership generally or the applicable Series, as the case may bePartnership, to exercise all powers set forth in Section 2.5 3.2 hereof and to effectuate the purposes set forth in Section 2.43.1 hereof, including the followingincluding, without limitation:
(i1) the making of any expenditures, the lending or borrowing of money, including, without limitation, making prepayments on loans and borrowing money to permit the Partnership to make distributions to its Partners in such amounts as will permit the General Partner (so long as the General Partner qualifies as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Section 4981 of the Code) and to make distributions to its stockholders in amounts sufficient to permit the General Partner to maintain REIT status,
(2) the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, ,
(3) the issuance of evidences evidence of indebtedness and (including the securing of the same by deed, mortgage, deed of trust or other lien or encumbrance on the Partnership’s assets) and
(4) the incurring of any other obligationsobligations it deems necessary for the conduct of the activities of the Partnership, including the payment of all expenses associated with the General Partner;
(iiB) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership and each Series (other than in connection with or the matters set forth in Section 9.3)General Partner;
(iiiC) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any all or substantially all of the assets of the applicable Series Partnership (including the exercise or grant of any conversion, option, privilege, or subscription right or other right available in connection with any assets at any time held by the Partnership) or the merger merger, consolidation or other combination (a “ Business Combination”) of the Partnership with or into another PersonEntity on such terms as the General Partner deems proper, provided that the General Partner shall be required to send to the Associate General Partner and each Limited Partner a notice of such proposed Business Combination no less than 15 days prior to the record date for the vote of the General Partner’s stockholders on such Business Combination, if any;
(ivD) the use of the assets of the applicable Series Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms it sees fit, including, without limitation,
(1) the financing of the conduct of the operations of the General Partner, the Partnership or any of the Partnership’s Subsidiaries,
(2) the lending of funds to other Persons (including, without limitation, the Subsidiaries of the Partnership and/or the General Partner) and the repayment of obligations of the Partnership and its Subsidiaries and any other Person in which it has an equity investment, and
(3) the making of capital contributions to its Subsidiaries;
(vE) the expansion, development, construction, leasing, repair, alteration, demolition or improvement of any property in which the Partnership or any Subsidiary of the Partnership owns an interest;
(F) the negotiation, execution execution, and performance of any contracts, conveyances or other instruments on behalf that the General Partner considers useful or necessary to the conduct of the Partnership generally Partnership’s operations or the applicable Seriesimplementation of the General Partner’s powers under this Agreement, including contracting with contractors, developers, consultants, accountants, legal counsel, other professional advisors and other agents and the payment of their expenses and compensation out of the Partnership’s assets;
(viG) the distribution of Partnership cash or property of the applicable Seriesother Partnership assets in accordance with this Agreement;
(viiH) holding, managing, investing and reinvesting cash and other assets of the Partnership;
(I) the collection and receipt of revenues and income of the Partnership;
(J) the establishment of one or more divisions of the Partnership, the selection and dismissal of employees of the Partnership (including, without limitation, employees having titles such as “president,” “vice president,” “secretary” and “treasurer” of the Partnership), and agents, outside attorneys, accountants, consultants and contractors of the Partnership, and the determination of their compensation and other terms of employment or engagement;
(K) the maintenance of separate or joint such insurance policies for the benefit of the Partnership, any Series, any Partnership and the Partners and directors and officers thereof as it deems necessary or any Indemniteesappropriate;
(viiiL) the formation of, or acquisition of an interest (including non-voting interests in entities controlled by Affiliates of the Partnership or third parties) in, and the contribution of property to, any further Entities or other relationships that it deems desirable, including, without limitation, the acquisition of interests in, and the contributions of funds or property to, or making of loans to, its Subsidiaries and any further limited other Person from time to time, or general partnershipsthe incurrence of indebtedness on behalf of such Persons or the guarantee of the obligations of such Persons; provided that, joint venturesas long as the General Partner has determined to elect to qualify as a REIT or to continue to qualify as a REIT, corporationsthe Partnership may not engage in any such formation, limited liability companies acquisition or other relationships subject contribution that would cause the General Partner to the restrictions set forth in Section 2.4fail to qualify as a REIT;
(ixM) the control of any matters affecting the rights and obligations of the Partnership Partnership, including
(1) the settlement, compromise, submission to arbitration or any other form of dispute resolution, or abandonment of, any claim, cause of action, liability, debt or damages, due or owing to or from the applicable SeriesPartnership,
(2) the commencement or defense of suits, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigationlegal proceedings, administrative proceedings, arbitration or mediation and other forms of dispute resolution, and
(3) the representation of the Partnership in all suits or legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, the incurring of legal expense expenses, and the settlement of claims and litigation; and
(x) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(N) the undertaking of any action in connection with the Partnership’s direct or indirect investment in its Subsidiaries or any other Person (including, without limitation, the contribution or loan of funds by the Partnership to such Persons);
(O) the determination of the fair market value of any Partnership property distributed in kind using such reasonable method of valuation as the General Partner, in its sole discretion, may adopt;
(P) the exercise, directly or indirectly, through any attorney-in-fact acting under a general or limited power of attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(Q) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(R) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest pursuant to contractual or other arrangements with such Person;
(S) the making, execution and delivery of any and all deeds, leases, notes, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate, in the judgment of the General Partner, for the accomplishment of any of the foregoing;
(T) the issuance of additional Partnership Units in connection with Capital Contributions by Additional Limited Partners and additional Capital Contributions by Partners pursuant to Article 4 hereof;
(U) the opening of bank accounts on behalf of, and in the name of, the Partnership and its Subsidiaries; and
(V) the amendment and restatement of Exhibit A to reflect accurately at all times the Capital Contributions and Percentage Interests of the Partners as the same are adjusted from time to time to the extent necessary to reflect redemptions, Capital Contributions, the issuance of Partnership Units, the admission of any Additional Limited Partner or any Substituted Limited Partner or otherwise, which amendment and restatement, notwithstanding anything in this Agreement to the contrary, shall not be deemed an amendment of this Agreement, as long as the matter or event being reflected in Exhibit A otherwise is authorized by this Agreement.
(i) The Associate General Partner and each of the Limited Partners agree that the General Partner is authorized to execute, deliver and perform the above-mentioned agreements and transactions on behalf of the Partnership without any further act, approval or vote of the Partners, notwithstanding any other provision of this Agreement to the fullest extent permitted under the Act or other applicable law, rule or regulation.
(ii) The execution, delivery or performance by the General Partner or the Partnership of any agreement authorized or permitted under this Agreement shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement or of any duty stated or implied by law or equity.
(c) At all times from and after the date hereof, the General Partner at the expense of the Partnership, may or may not, cause the Partnership to obtain and maintain
(i) casualty, liability and other insurance on the properties of the Partnership;
(ii) liability insurance for the Indemnitees hereunder; and
(iii) such other insurance as the General Partner, in its sole and absolute discretion, determines to be appropriate and reasonable.
(d) At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain at any and all times working capital accounts and other cash or similar balances in such amount as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
(i) In exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner (including the General Partner) of any action taken (or not taken) by it. The General Partner and the Partnership shall not have liability to the Associate General Partner or any Limited Partner for monetary damages or otherwise for losses sustained, liabilities incurred or benefits not delivered by the Associate General Partner or such Limited Partner in connection with such decisions, provided that the General Partner has acted in good faith pursuant to its authority under this Agreement. The Limited Partners expressly acknowledge that the General Partner is acting on behalf of the Partnership, the General Partner, and the General Partner’s stockholders, collectively.
(ii) The General Partner and the Partnership shall not have liability to the Associate General Partner or any Limited Partner under any circumstances as a result of an income tax liability incurred by the Associate General Partner or such Limited Partner as a result of an action (or inaction) by the General Partner taken pursuant to its authority under and in accordance with this Agreement.
Appears in 2 contracts
Sources: Limited Partnership Agreement (Lightstone Value Plus Real Estate Investment Trust Ii Inc), Limited Partnership Agreement (Lightstone Value Plus Real Estate Investment Trust Ii Inc)
Management. (a) The Managing General Partner of the Partnership generally shall conduct, direct and manage all activities of the Partnership generally, and the Managing General Partner of each Series shall conduct, direct and manage all activities of the Series for which it serves as Managing General Partner. Except as otherwise expressly provided in this Agreement, (i) all A. All management powers over the business and affairs of the Partnership generally are and shall be exclusively vested in the Managing General Partner of Partner; provided, however, as further described in Section 7.1.G, the Partnership generally, and no Limited Partner or other General Partner shall have full, right, power and authority to delegate its management powers over the business and affairs of the Partnership to officers of the Partnership designated by the General Partner or Federal Realty. No Limited Partner shall have any right to participate in or exercise control or management power over the business and affairs of (or authority to bind) the Partnership generally and (ii) all management powers over the business and affairs of each Series shall be exclusively vested in the Managing or Federal Realty. No General Partner may be removed by the Partners, with or without cause, except with the Consent of such Series, and no Limited Partner or other the General Partner shall have any management power over the business and affairs of (or authority to bind) such SeriesPartner. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or that are granted to a Managing the General Partner under any other provision of this Agreement, each Managing General Partner, subject only to any approval required by Section 7.4, Section 7.5 or any other provision the provisions of this Agreement, including, without limitation, Section 3.2 and Section 7.3, the General Partner shall have full and exclusive power and authority authority, in its sole and absolute discretion, without the consent or approval of any Limited Partner, to do or authorize all things and on such terms as it determines to be deemed necessary or appropriate desirable by it to conduct the business and affairs of the Partnership generally or and the applicable Series, as the case may beGeneral Partner, to exercise or direct the exercise of all of the powers set forth in Section 2.5 of the Partnership under the Act and this Agreement and to effectuate the purposes set forth in Section 2.4of the Partnership including, including the followingwithout limitation:
(i1) the making of any expenditures, the lending or borrowing of moneymoney or selling of assets (including, without limitation, making prepayments on loans and borrowing money to permit the Partnership to make distributions to the Holders in such amounts as will permit Federal Realty): (a) to prevent the imposition of any federal income tax on Federal Realty (including, for this purpose, any excise tax pursuant to Code Section 4981); (b) to make distributions to its shareholders and payments to any taxing authority sufficient to permit Federal Realty to maintain REIT status or otherwise to satisfy the REIT Requirements; (c) the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtedness (including the securing of same by deed to secure debt, mortgage, deed of trust or other lien or encumbrance on the Partnership’s assets); and (d) the incurring of any other obligationsobligations that the General Partner deems necessary for the conduct of the activities of the Partnership or Federal Realty;
(ii2) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership and each Series (other than in connection with the matters set forth in Section 9.3)Partnership;
(iii3) the taking of any and all acts necessary or prudent to ensure that the Partnership will not be classified as a “publicly traded partnership” under Code Section 7704(b) or be taxed as a corporation under the Code;
(4) subject to Section 11.2.B, the acquisition, dispositionsale, mortgagetransfer, pledgeexchange or other disposition of any, encumbrance, hypothecation all or exchange of any or substantially all of the assets of (including the applicable Series or the merger or other combination goodwill) of the Partnership (including, but not limited to, the exercise or grant of any conversion, option, privilege or subscription right or any other right available in connection with any assets at any time held by the Partnership) or into another Personundertaking an Extraordinary Transaction with respect to the Partnership;
(iv5) the mortgage, cross-collateralization, pledge, encumbrance or hypothecation of any assets of the Partnership, the assignment of any assets of the Partnership in trust for creditors or on the promise of the assignee to pay the debts of the Partnership, the use of the assets of the applicable Series Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms that the General Partner sees fit, including, without limitation, the financing of the operations and activities of the General Partner, Federal Realty, the Partnership or any of the Partnership’s Subsidiaries, the lending of funds to other Persons (including, without limitation, the General Partner, Federal Realty and/or the Partnership’s Subsidiaries) and the repayment of obligations of the Partnership, Federal Realty, the Partnership’s Subsidiaries and any other Person in which the Partnership has an equity investment, and the making of capital contributions to and equity investments in the Partnership’s Subsidiaries;
(v6) the management, operation, leasing, landscaping, repair, alteration, demolition, replacement or improvement of any Property;
(7) the negotiation, execution and performance of any contracts, including leases, ground leases, easements, management agreements, consulting agreements, rights of way and other property-related agreements, conveyances or other instruments on behalf that the General Partner considers useful or necessary to the conduct of the Partnership’s operations or the implementation of the General Partner’s powers under this Agreement, including contracting with contractors, developers, consultants, governmental authorities, accountants, legal counsel, other professional advisors and other agents (including, without limitation, contracting with Federal Realty and its Subsidiaries) and the payment of their expenses, fees and compensation out of the Partnership’s assets;
(8) the distribution of Partnership cash or other Partnership assets in accordance with this Agreement, the holding, management, investment and reinvestment of cash and other assets of the Partnership, and the collection and receipt of revenues, rents and income of the Partnership;
(9) the selection and dismissal of employees of the Partnership generally (if any) or the applicable SeriesGeneral Partner (if any) (including, without limitation, employees having titles or offices such as “president,” “vice president,” “secretary” and “treasurer”), and agents, outside attorneys, accountants, consultants and contractors of the Partnership or the General Partner and the determination of their compensation and other terms of employment or hiring;
(vi) the distribution of cash or property of the applicable Series;
(vii10) the maintenance of separate or joint such insurance policies (including, without limitation, directors and officers insurance) for the benefit of the PartnershipPartnership and the Partners as the General Partner deems necessary or appropriate (which may be provided through the blanket insurance coverages maintained by Federal Realty with an appropriate reimbursement by the Partnership for its appropriate share of the insurance premiums, any Series, any Partners or any Indemniteesas determined by the General Partner and Federal Realty);
(viii11) the merger of the Partnership with or into, the consolidation of the Partnership with, the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further other limited or general partnerships, joint ventures, corporations, limited liability companies companies, joint ventures or other relationships subject entities that it deems desirable (including, without limitation, the acquisition of interests in, and the contributions of property to, any Affiliate, Subsidiary and any other Person in which the General Partner has an equity investment from time to time); provided, however, that the restrictions set forth Partnership will not engage in Section 2.4any such formation, acquisition or contribution that would cause Federal Realty to fail to qualify as a REIT or to satisfy the REIT Requirements;
(ix12) the control of any matters affecting the rights and obligations of the Partnership or the applicable SeriesPartnership, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigationsettlement, compromise, submission to arbitration or mediation any other form of dispute resolution, or abandonment, of any claim, cause of action, liability, debt or damages, due or owing to or from the Partnership, the commencement or defense of suits, legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, and the representation of the Partnership in all suits or legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, the incurring of legal expense expense, and the settlement of claims and litigation; and
(x) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(13) the undertaking of any action in connection with the Partnership’s direct or indirect investment in any Subsidiary or any other Person (including, without limitation, the contribution or loan of funds by the Partnership to such Persons);
(14) the determination of the fair market value of any Partnership property distributed in kind using such reasonable method of valuation as the General Partner may adopt; provided, that such methods are otherwise consistent with the requirements of this Agreement;
(15) the enforcement of any rights against any Partner pursuant to representations, warranties, covenants and indemnities relating to such Partner’s contribution of property or assets to the Partnership;
(16) the exercise, directly or indirectly, through any attorney-in-fact acting under a general or limited power of attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(17) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(18) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest, pursuant to contractual or other arrangements with such Person;
(19) the making, execution and delivery of any and all deeds, leases, notes, deeds to secure debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases, confessions of judgment or any other legal instruments or agreements in writing necessary or appropriate in the sole judgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement;
(20) the issuance of additional Units in connection with Capital Contributions by Additional Limited Partners and additional Capital Contributions by Partners pursuant to Article 4;
(21) an election to dissolve the Partnership pursuant to Section 13.1.B;
(22) the distribution of cash to acquire Common Units held by a Limited Partner in connection with a Redemption under Section 8.6;
(23) an election to require Federal Realty to acquire Tendered Units in exchange for REIT Shares;
(24) any update to the books and records of the Partnership to reflect accurately at all times the Capital Contributions and Percentage Interests of the Partners as the same are adjusted from time to time to the extent necessary to reflect redemptions, Capital Contributions, the issuance of Units, the admission of any Additional Limited Partner or any Substituted Limited Partner or otherwise, which update, notwithstanding anything in this Agreement to the contrary, shall not be deemed an amendment to this Agreement, as long as the matter or event being reflected in the books and records of the Partnership otherwise is authorized by this Agreement; and
(25) the registration of any offering or any class of securities of the Partnership under the Securities Act or the Exchange Act, and the listing of any debt securities of the Partnership on any exchange.
B. Except as provided in Section 7.3, each of the Limited Partners agrees that the General Partner, in its sole and absolute discretion, is authorized to execute, deliver and perform the above-mentioned agreements and transactions on behalf of the Partnership, and otherwise to exercise any power of the General Partner under this Agreement and the Act, without any further act, approval or vote of the Partners or any other Persons, notwithstanding any other provision of the Act or any applicable law, rule or regulation. The execution, delivery or performance by the General Partner or the Partnership of any agreement authorized or permitted under this Agreement shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement or of any duty stated or implied by law or equity.
C. At all times from and after the date hereof, the General Partner may cause the Partnership to obtain and maintain casualty, liability and other insurance on the Properties and liability insurance for the Indemnitees hereunder.
D. At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain working capital and other reserves in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
E. In exercising its authority under this Agreement, except as may be required for Federal Realty to qualify as a REIT, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner of any action taken (or not taken) by it. None of the General Partner, Federal Realty, any Federal Realty Subsidiary, the Partnership or any Person within the definition of Indemnitee shall have liability to a Limited Partner under any circumstances as a result of any income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner pursuant to its authority under this Agreement.
F. The determination as to any matter relating to the business and affairs of the Partnership made by or at the direction of the General Partner consistent with this Agreement and the Act shall be final and conclusive and shall be binding upon the Partnership and every Limited Partner and shall not constitute a breach of this Agreement, of any agreement contemplated herein or therein, or of any fiduciary or other duty hereunder or otherwise existing at law, in equity or otherwise. The foregoing shall apply, without limitation, to the following: the amount of assets at any time available for distribution or the redemption of Common Units; the amount and timing of any distribution; the amount, purpose, time of creation, increase or decrease, alteration or cancellation of any reserves or charges and the propriety thereof (whether or not any obligation or liability for which such reserves or charges shall have been created shall have been paid or discharged); the amount of any Partner’s Capital Account; the amount of Profit or Loss for any period; the value of any Partnership asset; the Value of any REIT Share; the amount of the Adjustment Factor at any time; any election, or failure to elect, to require Federal Realty to acquire Tendered Units in exchange for REIT Shares; whether any acquisition of Tendered Units in exchange for REIT Shares would or might cause any Person to violate the REIT Shares Ownership Limit; the REIT Shares Amount at any time; whether the transfer of any Units would cause the Partnership to be classified as a “publicly traded partnership “ under Code Section 7704(b); any interpretation of this Agreement or the terms, preferences, conversion or other rights, voting powers or rights, restrictions, limitations as to dividends or distributions, qualifications or terms or conditions of redemption of any class or series of Partnership Interest; the fair value, or any sale, bid or asked price to be applied in determining the fair value, of any asset owned or held by the Partnership or of any Partnership Interest; the number of authorized or outstanding Units of any class or series; any matter relating to the acquisition, holding and disposition of any assets by the Partnership; or any other matter relating to the business and affairs of the Partnership or required or permitted by applicable law, this Agreement or otherwise to be determined by the General Partner. The foregoing shall not apply to any intentional or willful violation by the General Partner of any restriction contained in a Partner Schedule restricting the sale or disposition of specified Partnership property or requiring that the Partnership maintain a minimum amount of specified indebtedness of the Partnership.
G. The General Partner shall have the authority to appoint, remove and replace such officers of the Partnership and to establish such titles, duties and authority for such officers as it shall determi
Appears in 2 contracts
Sources: Limited Partnership Agreement (Federal Realty OP LP), Limited Partnership Agreement (Federal Realty OP LP)
Management. (a) The Managing General Partner of Management by the Partnership generally shall conduct, direct and manage all activities of the Partnership generally, and the Managing General Partner of each Series shall conduct, direct and manage all activities of the Series for which it serves as Managing General Partner. Except as otherwise expressly provided in this Agreement, (i) all management powers over full, complete and exclusive discretion to manage and control the business and affairs of the Partnership generally are and shall be exclusively vested in the Managing General Partner of the Partnership generallyPartner, and no Limited Partner or other General Partner shall have any right to participate in or exercise control or management power over the business and affairs of (or authority to bind) the Partnership generally and (ii) all management powers over the business and affairs of each Series shall be exclusively vested in the Managing Partnership. The General Partner may not be removed by the Limited Partners with or without cause.
(b) Power and Authority of such Series, and no Limited Partner or other the General Partner shall have any management power over the business and affairs of (or authority to bind) such SeriesPartner. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or that which are granted to a Managing the General Partner under any other provision of this Agreement, each Managing the General Partner, subject to any approval required by Section 7.4, Section 7.5 or any other provision of this Agreement, Partner shall have full power and authority to do all things and on such terms as it determines to be deemed necessary or appropriate desirable by it to conduct the business of the Partnership generally or the applicable Series, as the case may bePartnership, to exercise all powers set forth in Section 2.5 3.2 hereof and to effectuate the purposes set forth in Section 2.43.1 hereof, including the followingincluding, without limitation:
(i) (A) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money to permit the Partnership to make distributions to its Partners in such amounts as will permit the General Partner (so long as the General Partner qualifies as a REIT) to (1) avoid the payment of any Federal income or excise tax (including any excise tax pursuant to Section 4981 of the Code) and (2) make distributions to its stockholders in amounts sufficient to permit the General Partner to maintain REIT status), (B) the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, (C) the issuance of evidences any evidence of indebtedness (including the securing of the same by deed, mortgage, deed of trust or other lien or encumbrance on the Partnership’s assets), and (D) the incurring of any other obligationsobligations it deems necessary for the conduct of the activities of the Partnership, including the payment of all expenses associated with the General Partner;
(iii) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership and each Series (other than in connection with or the matters set forth in Section 9.3)General Partner;
(iiiii) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all assets, including Real Estate Assets, of the Partnership (including the exercise or grant of any conversion, option, privilege, or subscription right or other right available in connection with any assets of at any time held by the applicable Series Partnership) or the merger or other combination of the Partnership with or into another Personentity on such terms as the General Partner deems proper;
(iviii) the use of the assets of the applicable Series Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms the General Partner sees fit, including, without limitation,
(A) the financing of the conduct of the operations of the General Partner, the Partnership or any of the Partnership’s Subsidiaries,
(B) the lending of funds to other Persons (including, without limitation, the Subsidiaries of the Partnership and/or the General Partner) and the repayment of obligations of the Partnership and its Subsidiaries and any other Person in which it has an equity investment, and
(C) the making of capital contributions to the Partnership’s Subsidiaries;
(iv) the development, expansion, construction, management, operation, leasing, repair, alteration, demolition or improvement of any real property in which the Partnership or any Subsidiary of the Partnership owns a direct or indirect interest;
(v) the negotiation, execution execution, and performance of any contracts, conveyances or other instruments on behalf that the General Partner considers useful or necessary to the conduct of the Partnership generally Partnership’s operations or the applicable Seriesimplementation of the General Partner’s powers under this Agreement, including contracting with contractors, developers, consultants, accountants, legal counsel, other professional advisors and other agents and the payment of their expenses and compensation out of the Partnership’s assets;
(vi) the distribution of Partnership cash or property of the applicable Seriesother Partnership assets in accordance with this Agreement;
(vii) the maintenance holding, management, investment and reinvestment of separate cash and other assets of the Partnership;
(viii) the collection and receipt of revenues and income of the Partnership;
(ix) the establishment of one or joint insurance policies for the benefit more divisions of the Partnership, any Seriesthe selection and dismissal of employees of the Partnership (including, any Partners without limitation, employees having titles such as “president,” “vice president,” “secretary” and “treasurer” of the Partnership), and agents, outside attorneys, accountants, consultants and contractors of the Partnership, and the determination of their compensation and other terms of employment or any Indemniteesengagement;
(viiix) the formation of, or acquisition of an interest (including non-voting interests in entities controlled by Affiliates of the Partnership or third parties) in, and the contribution of property to, any other Entities that the General Partner deems desirable (including, without limitation, the acquisition of interests in, and the contributions of funds or property to, or making of loans to, Subsidiaries of the Partnership and any further limited other Person from time to time), or general partnershipsthe incurrence of indebtedness on behalf of such Persons or the guarantee of the obligations of such Persons; provided that, joint venturesas long as the General Partner has determined to elect to qualify as a REIT or to continue to qualify as a REIT, corporationsthe Partnership may not engage in any such formation, limited liability companies acquisition or other relationships subject contribution that would cause the General Partner to the restrictions set forth in Section 2.4fail to qualify as a REIT;
(ixxi) the control of any matters affecting the rights and obligations of the Partnership Partnership, including:
(A) the settlement, compromise, submission to arbitration or any other form of dispute resolution, or abandonment of, any claim, cause of action, liability, debt or damages, due or owing to or from the applicable SeriesPartnership,
(B) the commencement or defense of suits, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigationlegal proceedings, administrative proceedings, arbitration or mediation and other forms of dispute resolution, and
(C) the representation of the Partnership in all suits or legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, the incurring of legal expense expenses, and the settlement of claims and litigation; and
(x) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the undertaking of any action in connection with the Partnership’s direct or indirect investment in its Subsidiaries or any other Person (including, without limitation, the contribution or loan of funds by the Partnership to such Persons);
(xiii) the determination of the fair market value of any Partnership Assets distributed in kind using such reasonable method of valuation as the General Partner, in its sole discretion, may adopt;
(xiv) the exercise, directly or indirectly, through any attorney-in-fact acting under a general or limited power of attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(xv) the exercise of any of the powers of the General Partner enumerated in this Agreement or the undertaking of any action on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(xvi) the making, execution and delivery of any and all deeds, leases, notes, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate, in the judgment of the General Partner, for the accomplishment of any of the foregoing;
(xvii) the issuance of additional Partnership Interests in connection with Capital Contributions by Additional Limited Partners and additional Capital Contributions by Partners pursuant to Article 4 hereof;
(xviii) the opening of bank accounts on behalf of, and in the name of, the Partnership and its Subsidiaries; and
(xix) the amendment and restatement of Exhibit A to reflect accurately at all times the Capital Contributions of, Partnership Units held by and Percentage Interests of the Partners as the same are adjusted from time to time to the extent necessary to reflect any Capital Contributions, redemptions, issuance of Partnership Units, admission of any Additional Limited Partner or any Substituted Limited Partner or otherwise, which amendment and restatement, notwithstanding anything in this Agreement to the contrary, shall not be deemed an amendment of this Agreement, as long as the matter or event being reflected in Exhibit A otherwise is authorized by this Agreement.
Appears in 2 contracts
Sources: Limited Partnership Agreement (Healthcare Trust of America, Inc.), Limited Partnership Agreement (Healthcare Trust of America, Inc.)
Management. (a) The Managing General Partner of the Partnership generally shall conduct, direct and manage all activities of the Partnership generally, and the Managing General Partner of each Series shall conduct, direct and manage all activities of the Series for which it serves as Managing General Partner. 7.1.1 Except as otherwise expressly provided in this Agreement, (i) all management powers over the business and affairs of the Partnership generally are and shall be exclusively vested in the Managing General Partner of the Partnership generallyPartner, and no Limited Partner or other General Partner shall have any right to participate in or exercise control or management power over the business and affairs of (or authority to bind) the Partnership generally and (ii) all management powers over the business and affairs of each Series shall be exclusively vested in the Managing Partnership. The General Partner may not be removed by the Partners with or without cause, except with the consent of such Series, and no Limited Partner or other the General Partner shall have any management power over the business and affairs of (or authority to bind) such SeriesPartner. In addition to the powers now or hereafter granted to a general partner of a limited partnership under applicable law or that are granted to a Managing the General Partner under any other provision of this Agreement, each Managing the General Partner, subject to any approval required by Section 7.4, Section 7.5 or any the other provision of this Agreementprovisions hereof, shall have full power and authority to do all things and on such terms as it determines to be deemed necessary or appropriate desirable by it to conduct the business of the Partnership generally or the applicable Series, as the case may bePartnership, to exercise all powers set forth in Section 2.5 3.2 hereof and to effectuate the purposes set forth in Section 2.43.1 hereof, including the followingincluding, without limitation:
(ia) the making of any expenditures, the lending or borrowing of moneymoney (including making prepayments on loans and borrowing money or selling assets to permit the Partnership to make distributions to its Partners in such amounts as will permit the General Partner (so long as the General Partner desires to maintain or restore its status as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Code Section 4981) and to make distributions sufficient to permit the General Partner to maintain or restore REIT status or otherwise to satisfy the REIT Requirements), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtedness (including the securing of same by deed to secure debt, mortgage, deed of trust or other lien or encumbrance on the Partnership’s assets) and the incurring of any other obligationsobligations that it deems necessary for the conduct of the activities of the Partnership;
(iib) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership and each Series (other than in connection with the matters set forth in Section 9.3)Partnership;
(iiic) the acquisition, dispositionsale, mortgagelease, pledgetransfer, encumbranceexchange or other disposition of any, hypothecation all or exchange of any or substantially all of the assets of the applicable Series Partnership (including, but not limited to, the exercise or grant of any conversion, option, privilege or subscription right or any other right available in connection with any assets at any time held by the merger Partnership) or, subject to Section 8.6, the merger, consolidation, reorganization or other combination of the Partnership with or into another Personentity;
(ivd) the mortgage, pledge, encumbrance or hypothecation of any assets of the Partnership, the use of the assets of the applicable Series Partnership (including cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms that it sees fit, including the financing of the operations and activities of the General Partner, the Partnership or any of the Partnership’s Subsidiaries, the lending of funds to other Persons (including the Partnership’s Subsidiaries) and the repayment of obligations of the Partnership, its Subsidiaries and any other Person in which the Partnership has an equity investment, and the making of capital contributions to and equity investments in the Partnership’s Subsidiaries;
(ve) the management, operation, leasing, landscaping, repair, alteration, demolition, replacement or improvement of any Property, including any Contributed Property, or other asset of the Partnership or any Subsidiary, whether pursuant to a Services Agreement or otherwise;
(f) the negotiation, execution and performance of any contracts, leases, conveyances or other instruments on behalf that the General Partner considers useful or necessary to the conduct of the Partnership generally Partnership’s operations or the applicable Series;implementation of the General Partner’s powers under this Agreement, including contracting with contractors, developers, consultants, accountants, legal counsel, the Advisor’s other professional advisors and other agents and the payment of their expenses and compensation out of the Partnership’s assets; provided, however, that the Advisory Agreement must contain a provision (the “Voting Direction Provision”) that requires the Advisor to vote its shares of Proportionate Voting Preferred Stock in proportion to the votes (the “LP Direction Votes”) that the Advisor receives from the holders of Partnership Units (other than the General Partner), that are issued pursuant to the Master Agreement or pursuant to any option delivered pursuant thereto or in connection with the consummation of the transactions contemplated thereby. The Advisor shall not cast any votes with respect to the share of Proportionate Voting Preferred Stock unless it receives LP Direction Votes with respect thereto.
(vig) the distribution of Partnership cash or property other Partnership assets in accordance with this Agreement, the holding, management, investment and reinvestment of cash and other assets of the applicable SeriesPartnership, and the collection and receipt of revenues, rents and income of the Partnership;
(viih) the maintenance of separate or joint such insurance policies for the benefit of the PartnershipPartnership and the Partners as it deems necessary or appropriate, any Seriesincluding (i) casualty, any Partners or any Indemniteesliability and other insurance on the Properties and (ii) liability insurance for the Indemnitees hereunder;
(viiii) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies companies, joint ventures or other relationships subject that it deems desirable (including the acquisition of interests in, and the contributions of property to, any Subsidiary and any other Person in which it has an equity investment from time to the restrictions set forth in Section 2.4time);
(ixj) the control of any matters affecting the rights and obligations of the Partnership or the applicable SeriesPartnership, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigationsettlement, compromise, submission to arbitration or mediation any other form of dispute resolution, or abandonment, of any claim, cause of action, liability, debt or damages, due or owing to or from the Partnership, the commencement or defense of suits, legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, and the representation of the Partnership in all suits or legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, the incurring of legal expense expense, and the settlement of claims and litigation; and
(x) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(k) the undertaking of any action in connection with the Partnership’s direct or indirect investment in any Subsidiary or any other Person (including the contribution of Property or contribution or loan of funds by the Partnership to such Persons);
(l) except as otherwise specifically set forth in this Agreement, the determination of the fair market value of any Partnership property distributed in kind using such method of valuation as it may reasonably adopt as long as such method is otherwise consistent with the requirements of this Agreement;
(m) the enforcement of any rights against any Partner pursuant to representations, warranties, covenants and indemnities relating to such Partner’s contribution of property or assets to the Partnership;
(n) the exercise, directly or indirectly, through any attorney-in-fact acting under a general or limited power of attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(o) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(p) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest, pursuant to contractual or other arrangements with such Person;
(q) the making, execution and delivery of any and all deeds, leases, notes, deeds to secure debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate in the judgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement;
(r) the issuance of additional Partnership Units, as appropriate and in the General Partner’s sole and absolute discretion, in connection with Capital Contributions by Additional Limited Partners and additional Capital Contributions by Partners pursuant to Section 4 hereof;
(s) the selection and dismissal of Partnership Employees (including employees having titles or offices such as president, vice president, secretary and treasurer), and agents, outside attorneys, accountants, consultants and contractors of the Partnership or the General Partner, the determination of their compensation and other terms of employment or hiring and the delegation to any such Partnership Employee the authority to conduct the business of the Partnership in accordance with the terms of this Agreement; and
(t) an election to dissolve the Partnership pursuant to Section 13.1.2 hereof.
7.1.2 Except as provided in Section 14.2 hereof, the General Partner is authorized to execute, deliver and perform the above-mentioned agreements and transactions on behalf of the Partnership without any further act, approval or vote of the Partners, notwithstanding any other provision of this Agreement, the Act or any applicable law, rule or regulation. To the fullest extent permitted by law, the execution, delivery or performance by the General Partner or the Partnership of any agreement authorized or permitted under this Agreement shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement or of any duty stated or implied by law or equity.
7.1.3 At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain working capital and other reserves in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
7.1.4 In exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner (including the General Partner) of any action taken by it. The General Partner and the Partnership shall not have liability to a Limited Partner under any circumstances as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner pursuant to its authority under this Agreement.
7.1.5 The General Partner may not take any action in contravention of this Agreement, including, without limitation:
(a) taking any action that would make it impossible to carry on the ordinary business of the Partnership, except as otherwise provided in this Agreement;
(b) possessing Property, or assigning any rights in specific Property, for other than a Partnership purpose except as otherwise provided in this Agreement, including Section 7.9;
(c) admitting a Person as a Partner, except as otherwise provided in this Agreement;
(d) performing any act that would subject a Limited Partner to liability as a general partner in any jurisdiction or any other liability except as otherwise provided in this Agreement or under the Act; or
(e) entering into any contract, mortgage, loan or other agreement that prohibits or restricts the ability of (a) the General Partner or the Partnership from satisfying its obligations under Section 8.5 hereof in full or (b) a Limited Partner from exercising its rights under Section 8.5 hereof to effect a Redemption in full, except, in either case, with the written consent of such Limited Partner adversely affected by the prohibition or restriction.
Appears in 2 contracts
Sources: Limited Partnership Agreement (Pacific Office Properties Trust, Inc.), Limited Partnership Agreement (Pacific Office Properties Trust, Inc.)
Management. (a) The Managing General Partner of the Partnership generally shall conduct, direct and manage all activities of the Partnership generally, and the Managing General Partner of each Series shall conduct, direct and manage all activities of the Series for which it serves as Managing General Partner. A. Except as otherwise expressly provided in this Agreement, (i) all management powers over the business and affairs of the Partnership generally shall be are exclusively vested in the Managing General Partner of the Partnership generallyPartner, and no Limited Partner or other General Partner shall have any right to participate in or exercise control or management power over the business and affairs of (or authority to bind) the Partnership generally and (ii) all management powers over the business and affairs of each Series shall be exclusively vested in the Managing Partnership. The General Partner may not be removed by the Limited Partners with or without cause, except with the consent of such Series, and no Limited Partner or other the General Partner shall have any management power over the business and affairs of (or authority to bind) such SeriesPartner. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or that which are granted to a Managing the General Partner under any other provision of this Agreement, each Managing the General Partner, subject to any approval required by Section 7.4, Section 7.5 or any the other provision provisions of this Agreement, including without limitation Section 7.3, shall have full power and authority to do all things and on such terms as it determines to be deemed necessary or appropriate desirable by it to conduct the business of the Partnership generally or the applicable Series, as the case may bePartnership, to exercise all powers set forth in Section 2.5 3.2 and to effectuate the purposes set forth in Section 2.43.1, including the followingincluding, without limitation:
(i1) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money to permit the Partnership to make distributions to its Partners in such amounts as will permit the General Partner (so long as the General Partner has determined to qualify as a REIT) to avoid the incurrence of any federal income tax (including, for this purpose, any excise tax pursuant to Section 4981 of the Code) and to make distributions to its shareholders sufficient to permit the General Partner to maintain REIT status), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtedness (including the securing of same by mortgage, deed of trust or other lien or encumbrance on the Partnership’s assets) and the incurring of any other obligationsobligations it deems necessary for the conduct of the activities of the Partnership;
(ii2) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership and each Series (other than in connection with the matters set forth in Section 9.3)Partnership;
(iii3) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the applicable Series Partnership or the merger or other combination of the Partnership with or into another Personentity;
(iv4) the mortgage, pledge, encumbrance or hypothecation of any assets of the Partnership, and the use of the assets of the applicable Series Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms it sees fit, including, without limitation, the financing of the conduct or the operations of the General Partner or the Partnership, the lending of funds to other Persons (including, without limitation, the General Partner (if necessary to permit the financing or capitalization of a Subsidiary of the Partnership) or any Subsidiaries of the Partnership) and the repayment of obligations of the Partnership, any of its Subsidiaries and any other Person in which it has an equity investment;
(v5) the negotiation, execution execution, and performance of any contracts, leases, conveyances or other instruments on behalf that the General Partner considers useful or necessary to the conduct of the Partnership generally Partnership’s operations or the applicable Seriesimplementation of the General Partner’s powers under this Agreement;
(vi6) the distribution of Partnership cash or property of the applicable Seriesother Partnership assets in accordance with this Agreement;
(vii7) the selection and dismissal of employees of the Partnership (including, without limitation, employees having titles such as “president,” “vice president,” “secretary” and “treasurer”), and agents, outside attorneys, accountants, consultants and contractors of the Partnership, the determination of their compensation and other terms of employment or hiring, including waivers of conflicts of interest and the payment of their expenses and compensation out of the Partnership’s assets;
(8) the maintenance of separate or joint such insurance policies (including, without limitation, directors and officers insurance) for the benefit of the Partnership, any Series, any Partnership and the Partners as it deems necessary or any Indemniteesappropriate;
(viii9) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies ventures or other relationships subject that it deems desirable (including, without limitation, the acquisition of interests in, and the contributions of property to any Subsidiary and any other Person in which it has an equity investment from time to time); provided that, as long as the restrictions set forth General Partner has determined to continue to qualify as a REIT, the Partnership may not engage in Section 2.4any such formation, acquisition or contribution that would cause the General Partner to fail to qualify as a REIT;
(ix10) the control of any matters affecting the rights and obligations of the Partnership or the applicable SeriesPartnership, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigation, arbitration or mediation litigation and the incurring of legal expense and the settlement of claims and litigation; and
(x) , and the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(11) the undertaking of any action in connection with the Partnership’s direct or indirect investment in any Person (including, without limitation, contributing or loaning Partnership funds to, incurring indebtedness on behalf of, or guarantying the obligations of any such Persons);
(12) subject to the other provisions in this Agreement, the determination of the fair market value of any Partnership property distributed in kind using such reasonable method of valuation as it may adopt, provided that such methods are otherwise consistent with requirements of this Agreement;
(13) the management, operation, leasing, landscaping, repair, alteration, demolition or improvement of any real property or improvements owned by the Partnership or any Subsidiary of the Partnership or any Person in which the Partnership has made a direct or indirect equity investment;
(14) holding, managing, investing and reinvesting cash and other assets of the Partnership;
(15) the collection and receipt of revenues and income of the Partnership;
(16) the exercise, directly or indirectly through any attorney-in-fact acting under a general or limited power of attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(17) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(18) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest pursuant to contractual or other arrangements with such Person;
(19) the maintenance of the Partnership’s books and records; and
(20) the making, execution and delivery of any and all deeds, leases, notes, deeds to secure debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate in the judgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement.
B. Each of the Limited Partners agrees that the General Partner is authorized to execute, deliver and perform the above-mentioned agreements and transactions on behalf of the Partnership without any further act, approval or vote of the Partners, notwithstanding any other provisions of this Agreement (except as provided in Section 7.3), the Act or any applicable law, rule or regulation. The execution, delivery or performance by the General Partner or the Partnership of any agreement authorized or permitted under this Agreement shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement or of any duty stated or implied by law or equity.
C. At all times from and after the date hereof, the General Partner may cause the Partnership to obtain and maintain (i) casualty, liability and other insurance on the properties of the Partnership and (ii) liability insurance for the Indemnities hereunder.
D. At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain working capital reserves in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
E. Except as provided in this Agreement with respect to the qualification of the General Partner as a REIT and as may be provided in a separate written agreement between the Partnership and a Limited Partner, in exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner (including the General Partner) of any action taken by the General Partner. Except as provided in this Agreement with respect to the qualification of the General Partner as a REIT and as may be provided in a separate written agreement between the Partnership and a Limited Partner, the General Partner and the Partnership shall not have liability to a Partner under any circumstances as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner pursuant to its authority under this Agreement.
Appears in 2 contracts
Sources: Limited Partnership Agreement (Seritage Growth Properties), Limited Partnership Agreement (Seritage Growth Properties)
Management. (a) The Managing General Partner of the Partnership generally shall conduct, direct and manage all activities of the Partnership generally, and the Managing General Partner of each Series shall conduct, direct and manage all activities of the Series for which it serves as Managing General Partner. Except as otherwise expressly provided in this Agreement, (i) all management powers over the business and affairs of the Partnership generally are and shall be exclusively vested in the Managing General Partner of the Partnership generallyPartner, and no Limited Partner or other General Partner shall have any right to participate in or exercise control or management power over the business and affairs of (or authority to bind) the Partnership generally and (ii) all management powers over the business and affairs of each Series shall be exclusively vested in the Managing Partnership. The General Partner may not be removed by the Limited Partners with or without cause, except with the consent of such Seriesthe General Partner, which it may give or withhold at its sole and no Limited Partner or other General Partner shall have any management power over the business and affairs of (or authority to bind) such Seriesabsolute discretion. In addition to the powers now or hereafter granted to a general partner of a limited partnership under applicable law or that which are granted to a Managing the General Partner under any other provision of this Agreement, each Managing the General Partner, subject to any approval required by Section 7.4, Section 7.5 or any other provision of this AgreementSections 7.3 and 7.12, shall have full power and authority to do all things and on such terms as it determines to be deemed necessary or appropriate desirable by it to conduct the business of the Partnership generally or the applicable Series, as the case may bePartnership, to exercise all powers set forth in Section 2.5 3.2 and to effectuate the purposes set forth in Section 2.43.1, including the followingincluding:
(i) the making of any expenditures, the lending or borrowing of moneymoney (including making prepayments on loans and borrowing money to permit the Partnership to make distributions to its Partners in such amounts as will permit the Company (so long as the Company desires to maintain its qualification as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Code Section 4981) and to make distributions to its shareholders in amounts sufficient to permit the Company to maintain its REIT status), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences evidence of indebtedness (including the securing of the same by deed, mortgage, deed of trust or other lien or encumbrance on the Partnership’s assets) and the incurring of any other obligationsobligations it deems necessary for the conduct of the activities of the Partnership;
(ii) the making of tax, regulatory and other filingsfilings or elections, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership and each Series (other than in connection with the matters set forth in Section 9.3)Partnership;
(iii) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the applicable Series Partnership (including the exercise or grant of any conversion, option, privilege, or subscription right or other right available in connection with any assets at any time held by the Partnership) or the merger or other combination of the Partnership with or into another Personentity (all of the foregoing subject to any prior approval only to the extent required by Section 7.3);
(iv) the mortgage, pledge, encumbrance or hypothecation of any assets of the Partnership, the use of the assets of the applicable Series Partnership (including cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms that it sees fit, including the financing of the conduct of the operations of the Partnership, the Company or any of the Partnership’s or the Company’s Subsidiaries, the lending of funds to other Persons (including the Subsidiaries of the Partnership and/or the Company) and the repayment of obligations of the Partnership and its Subsidiaries and any other Person in which it has an equity investment, and the making of capital contributions to its Subsidiaries;
(v) the management, operation, leasing, landscaping, repair, alteration, demolition, disposition or improvement of any real property or improvements owned by the Partnership or any Subsidiary of the Partnership;
(vi) the negotiation, execution execution, delivery and performance of any contracts, conveyances or other instruments on behalf that the General Partner considers useful or necessary or convenient to the conduct of the Partnership generally Partnership’s operations or the applicable Series;
(vi) the distribution of cash or property implementation of the applicable SeriesGeneral Partner’s powers under this Agreement, including contracting with consultants, accountants, legal counsel, other professional advisors and other agents and the payment of their expenses and compensation out of the Partnership’s assets;
(vii) the distribution of Partnership cash or other Partnership assets in accordance with this Agreement;
(viii) holding, managing, investing and reinvesting cash and other assets of the Partnership;
(ix) the collection and receipt of revenues and income of the Partnership;
(x) the establishment of one or more divisions of the Partnership, the selection and dismissal of employees of the Partnership (including employees who may be designated as officers with titles such as “president,” “vice president,” “secretary” and “treasurer” of the Partnership), and agents, outside attorneys, accountants, consultants and contractors of the Partnership, and the determination of their compensation and other terms of employment or hiring;
(xi) the maintenance of separate or joint such insurance policies for the benefit of the Partnership, any Series, any Partnership and the Partners as it deems necessary or any Indemniteesappropriate;
(viiixii) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventureslimited liability companies, real estate investment trusts, corporations, limited liability companies entities that are treated as REITs, “taxable REIT subsidiaries” or as foreign corporations for federal income tax purposes, joint ventures or other relationships subject that it deems desirable (including the acquisition of interests in, and the contributions of property or the making of loans to, its or the Company’s Subsidiaries and any other Person in which it has an equity investment from time to time or the restrictions set forth incurrence of indebtedness on behalf of such Persons or the guarantee of obligations of such Persons and the making of any tax, regulatory or other filing or election with respect to any of the foregoing Persons); provided, that as long as the Company has determined to continue to qualify as a REIT, the Partnership may not engage in Section 2.4any such formation, acquisition or contribution that would cause the Company to fail to qualify as a REIT;
(ixxiii) the control of any matters affecting the rights and obligations of the Partnership or the applicable SeriesPartnership, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigationsettlement, compromise, submission to arbitration or mediation any other form of dispute resolution, or abandonment of, any claim, cause of action, liability, debt or damages, due or owing to or from the Partnership, the commencement or defense of suits, legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, and the incurring representation of the Partnership in all suits or legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, the incurrence of legal expense expense, and the settlement of claims and litigation; and
(x) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xiv) the undertaking of any action in connection with the Partnership’s direct or indirect investment in any Subsidiary or any other Person (including the contribution or loan of funds by the Partnership to such Persons);
(xv) the determination of the fair market value of any Partnership property distributed in kind using such reasonable method of valuation as the General Partner may adopt;
(xvi) the enforcement of any rights against any Partner pursuant to representations, warranties, covenants and indemnities relating to such Partner’s contribution of property or assets to the Partnership;
(xvii) the exercise, directly or indirectly, through any attorney-in-fact acting under a general or limited power of attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(xviii) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(xix) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest pursuant to contractual or other arrangements with such Person;
(xx) the making, execution, delivery and performance of any and all deeds, leases, notes, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary, appropriate or convenient, in the judgment of the General Partner, for the accomplishment of any of the powers of the General Partner enumerated in this Agreement;
(xxi) the issuance of additional Partnership Units and other partnership interests, as appropriate, in connection with Capital Contributions by Additional Limited Partners and additional Capital Contributions by Partners pursuant to Article 4; and
(xxii) the taking of any action necessary (or appropriate by the General Partner, in its discretion) to enable the Company to qualify as a REIT.
(b) Each of the Limited Partners agrees that the General Partner is authorized to execute, deliver and perform the above-mentioned agreements and transactions on behalf of the Partnership without any further act, approval or vote of the Partners, notwithstanding any other provision of this Agreement (except as provided in Section 7.3), the Act or any applicable law, rule or regulation, to the fullest extent permitted under the Act or other applicable law, rule or regulation. The execution, delivery or performance by the General Partner or the Partnership of any agreement authorized or permitted under this Agreement shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement or of any duty stated or implied by law or equity.
(c) At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain at any and all times working capital accounts and other cash or similar balances in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
(d) In exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to (except as otherwise provided by this Agreement with respect to the qualification of the Company as a REIT), take into account the tax consequences to any Partner of any action taken by it. The General Partner and the Partnership shall not be liable to a Limited Partner under any circumstances as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner taken pursuant to its authority under this Agreement and in accordance with the terms of Section 7.3.
Appears in 2 contracts
Sources: Limited Partnership Agreement (Essential Properties Realty Trust, Inc.), Limited Partnership Agreement (Essential Properties Realty Trust, Inc.)
Management. (a) The Managing General Partner of the Partnership generally shall conduct, direct and manage all activities of the Partnership generally, and the Managing General Partner of each Series shall conduct, direct and manage all activities of the Series for which it serves as Managing General Partner. A. Except as otherwise expressly provided in this Agreement, (i) all management powers over the business and affairs of the Partnership generally are and shall be exclusively vested in the Managing General Partner of the Partnership generallyPartner, and no Limited Partner or other General Partner shall have any right to participate in or exercise control or management power over the business and affairs of (or authority to bind) the Partnership generally and (ii) all management powers over the business and affairs of each Series shall be exclusively vested in the Managing Partnership. The General Partner may not be removed by the Partners with or without cause, except with the consent of such Series, and no Limited Partner or other the General Partner shall have any management power over the business and affairs of (or authority to bind) such SeriesPartner. In addition to the powers now or hereafter granted to a general partner of a limited partnership under applicable law or that are granted to a Managing the General Partner under any other provision of this Agreement, each Managing the General Partner, subject to any approval required by the other provisions hereof including Section 7.4, Section 7.5 or any other provision of this Agreement7.3, shall have full power and authority to do all things and on such terms as it determines to be deemed necessary or appropriate desirable by it to conduct the business of the Partnership generally or the applicable Series, as the case may bePartnership, to exercise all powers set forth in Section 2.5 3.2 hereof and to effectuate the purposes set forth in Section 2.43.1 hereof, including the followingincluding, without limitation:
(i) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money or selling assets to permit the Partnership to make distributions to its Partners in such amounts as will permit the General Partner (so long as the General Partner desires to maintain or restore its status as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Code Section 4981) and to make distributions to its stockholders sufficient to permit the General Partner to maintain or restore REIT status or otherwise to satisfy the REIT Requirements), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtedness (including the securing of same by deed to secure debt, mortgage, deed of trust or other lien or encumbrance on the Partnership’s assets) and the incurring of any other obligationsobligations that it deems necessary for the conduct of the activities of the Partnership;
(ii) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership, the registration of any class of securities of the Partnership under the Exchange Act and each Series (other than in connection with the matters set forth in Section 9.3)listing of any debt securities of the Partnership on any exchange;
(iii) the acquisition, dispositionsale, mortgagelease, pledgetransfer, encumbranceexchange or other disposition of any, hypothecation all or exchange of any or substantially all of the assets of the applicable Series Partnership (including, but not limited to, the exercise or grant of any conversion, option, privilege or subscription right or any other right available in connection with any assets at any time held by the Partnership) or the merger merger, consolidation, reorganization or other combination of the Partnership with or into another Personentity;
(iv) the mortgage, pledge, encumbrance or hypothecation of any assets of the Partnership, the use of the assets of the applicable Series Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms that it sees fit, including, without limitation, the financing of the operations and activities of the General Partner, the Partnership or any of the Partnership’s Subsidiaries, the lending of funds to other Persons (including, without limitation, the Partnership’s Subsidiaries) and the repayment of obligations of the Partnership, its Subsidiaries and any other Person in which the Partnership has an equity investment, and the making of capital contributions to and equity investments in the Partnership’s Subsidiaries;
(v) the negotiation, execution and performance of any contracts, leases, conveyances or other instruments on behalf that the General Partner considers useful or necessary to the conduct of the Partnership generally Partnership’s operations or the applicable Seriesimplementation of the General Partner’s powers under this Agreement, including contracting with contractors, developers, consultants, accountants, legal counsel, other professional advisors and other agents and the payment of their expenses and compensation out of the Partnership’s assets;
(vi) the distribution of Partnership cash or property other Partnership assets in accordance with this Agreement, the holding, management, investment and reinvestment of cash and other assets of the applicable SeriesPartnership and the collection and receipt of revenues and income of the Partnership;
(vii) the maintenance of separate or joint such insurance policies for the benefit of the PartnershipPartnership and the Partners as it deems necessary or appropriate, any Seriesincluding, any Partners or any Indemniteeswithout limitation, (i) casualty, liability and other insurance on the Properties and (ii) liability insurance for the Indemnitees hereunder;
(viii) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies companies, joint ventures or other relationships subject that it deems desirable (including, without limitation, the acquisition of interests in, and the contributions of property to, any Subsidiary and any other Person in which it has an equity investment from time to time); provided, however, that, as long as the restrictions set forth General Partner has determined to continue to qualify as a REIT, the General Partner may not engage in any such formation, acquisition or contribution that would cause the General Partner to fail to qualify as a REIT within the meaning of Code Section 2.4856(a);
(ix) the control of any matters affecting the rights and obligations of the Partnership or the applicable SeriesPartnership, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigationsettlement, compromise, submission to arbitration or mediation any other form of dispute resolution, or abandonment, of any claim, cause of action, liability, debt or damages, due or owing to or from the Partnership, the commencement or defense of suits, legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, and the representation of the Partnership in all suits or legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, the incurring of legal expense expense, and the settlement of claims and litigation; and
(x) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(x) the undertaking of any action in connection with the Partnership’s direct or indirect investment in any Subsidiary or any other Person (including, without limitation, the contribution or loan of funds by the Partnership to such Persons);
(xi) except as otherwise specifically set forth in this Agreement, the determination of the fair market value of any Partnership property distributed in-kind using such reasonable method of valuation as it may adopt; provided that such methods are otherwise consistent with the requirements of this Agreement;
(xii) the enforcement of any rights against any Partner pursuant to representations, warranties, covenants and indemnities relating to such Partner’s contribution of property or assets to the Partnership;
(xiii) the exercise, directly or indirectly, through any attorney-in-fact acting under a general or limited power-of-attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(xiv) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(xv) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest, pursuant to contractual or other arrangements with such Person;
(xvi) the making, execution and delivery of any and all deeds, leases, notes, deeds to secure debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate in the judgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement;
(xvii) the issuance of additional Partnership Units, as appropriate and in the General Partner’s sole and absolute discretion, in connection with Capital Contributions by Additional Limited Partners and additional Capital Contributions by Partners pursuant to Article IV hereof;
(xviii) the selection, designation of powers, authority and duties and dismissal of employees or personnel of the Partnership (including, without limitation, employees or personnel having titles such as “president,” “vice president,” “secretary” and “treasurer”) and agents, outside attorneys, accountants, consultants and contractors of the Partnership, the General Partner or the Manager the determination of their compensation and other terms of employment or service or hiring, and the delegation to any such Person the authority to conduct the business of the Partnership in accordance with the terms of this Agreement;
(xix) the distribution of cash to acquire Partnership Units held by a Limited Partner in connection with a Limited Partner’s exercise of its Redemption under Section 8.6 hereof;
(xx) the amendment and restatement of Exhibit A hereto to reflect accurately at all times the Capital Contributions and Percentage Interests of the Partners as the same are adjusted from time to time to the extent necessary to reflect redemptions, Capital Contributions, the issuance of Partnership Units, the admission of any Additional Limited Partner or any Substituted Limited Partner or otherwise, which amendment and restatement, notwithstanding anything in this Agreement to the contrary, shall not be deemed an amendment to this Agreement, as long as the matter or event being reflected in Exhibit A hereto otherwise is authorized by this Agreement;
(xxi) an election to dissolve the Partnership pursuant to Section 13.1.D hereof; and
(xxii) the taking of any action necessary or appropriate to enable the General Partner to qualify as a REIT.
B. Each of the Limited Partners agrees that, except as provided in Section 7.3 hereof, the General Partner is authorized to execute, deliver and perform the above-mentioned agreements and transactions on behalf of the Partnership without any further act, approval or vote of the Partners, notwithstanding any other provision of this Agreement, the Act or any applicable law, rule or regulation, to the full extent permitted under the Act or other applicable law. The execution, delivery or performance by the General Partner or the Partnership of any agreement authorized or permitted under this Agreement shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement or of any duty stated or implied by law or equity.
C. At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain working capital and other reserves in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
D. In exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner (including the General Partner) of any action taken (or not taken) by it. The General Partner and the Partnership shall not have liability to a Limited Partner for monetary damages or otherwise for losses sustained, liabilities incurred or benefits not derived by such Limited Partner in connection with such decisions; provided that the General Partner has acted in good faith and pursuant to its authority under this Agreement.
Appears in 2 contracts
Sources: Limited Partnership Agreement (Invesco Agency Securities Inc.), Limited Partnership Agreement (Invesco Mortgage Capital Inc.)
Management. (a) The Managing General Partner of the Partnership generally shall conduct, direct and manage all activities of the Partnership generally, and the Managing General Partner of each Series shall conduct, direct and manage all activities of the Series for which it serves as Managing General PartnerPartnership. Except as otherwise expressly provided in this Agreement, (i) all management powers over the business and affairs of the Partnership generally shall be exclusively vested in the Managing General Partner of the Partnership generallyPartner, and no Limited Partner or other General Partner shall have any management power over the business and affairs of (or authority to bind) the Partnership generally and (ii) all management powers over the business and affairs of each Series shall be exclusively vested in the Managing General Partner of such Series, and no Limited Partner or other General Partner shall have any management power over the business and affairs of (or authority to bind) such SeriesPartnership. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or that are granted to a the Managing General Partner under any other provision of this Agreement, each the Managing General Partner, subject to any approval required by Section 7.4, Section 7.5 or any other provision of this Agreement7.3, shall have full power and authority to do all things and on such terms as it determines determines, in its sole discretion, to be necessary or appropriate to conduct the business of the Partnership generally or the applicable Series, as the case may bePartnership, to exercise all powers set forth in Section 2.5 and to effectuate the purposes set forth in Section 2.4, including the following:
(i) the making of any expenditures, the lending or borrowing of money, the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtedness, including indebtedness that is convertible or exchangeable into Partnership Securities or options, rights, warrants or appreciation rights relating to Partnership Securities, and the incurring of any other obligations;
(ii) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership and each Series (other than in connection with the matters set forth in Section 9.3)Partnership;
(iii) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the applicable Series Partnership or the merger or other combination of the Partnership with or into another PersonPerson (the matters described in this clause (iii) being subject, however, to any prior approval that may be required by Section 7.3 and Article XIV);
(iv) the use of the assets of the applicable Series Partnership (including cash on hand) for any purpose consistent with the terms of this Agreement, including the financing of the conduct of the operations of the Partnership Group; subject to Section 7.6(a), the lending of funds to other Persons; the repayment or guarantee of obligations of any Group Member and the making of Capital Contributions to any Group Member;
(v) the negotiation, execution and performance of any contracts, conveyances or other instruments on behalf (including instruments that limit the liability of the Partnership generally under contractual arrangements to all or particular assets of the applicable SeriesPartnership, with the other party to the contract to have no recourse against the Managing Partner or its assets other than their interest in the Partnership, even if same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case);
(vi) the distribution of cash or property of the applicable SeriesPartnership cash;
(vii) the selection and dismissal of employees (including employees having such as titles as the Managing Partner may determine in its sole discretion) and agents, outside attorneys, accountants, consultants and contractors and the determination of their compensation and other terms of employment or hiring;
(viii) the maintenance of separate or joint insurance policies for the benefit of the PartnershipPartnership Group, any Series, any the Partners or any and Indemnitees;
(viiiix) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies companies, corporations or other relationships (including the acquisition of interests in, and the contributions of property to, the Partnership’s Subsidiaries from time to time) subject to the restrictions set forth in Section 2.4;
(ixx) the control of any matters affecting the rights and obligations of the Partnership or the applicable SeriesPartnership, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigation, arbitration or mediation and the incurring of legal expense and the settlement of claims and litigation; and;
(xxi) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.7);
(xiii) the purchase, sale or other acquisition or disposition of Partnership Securities or options, rights, warrants or appreciation rights relating to Partnership Securities;
(xiv) the undertaking of any action in connection with the Partnership’s participation in the management of the Partnership Group through its directors, officers or employees or the Partnership’s direct or indirect ownership of the Group Members, including all things described in or contemplated by the Registration Statement and the agreements described in or filed as exhibits to the Registration Statement; and
(xv) cause to be registered for resale under the Securities Act and applicable state or non-U.S. securities laws, any securities of, or any securities convertible or exchangeable into securities of, the Partnership held by any Person, including the Managing Partner or any Affiliate of the Managing Partner.
(b) In exercising its authority under this Agreement, the Managing Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner (including the Managing Partner) of any action taken (or not taken) by it. The Managing Partner and the Partnership shall not have any liability to a Limited Partner for monetary damages, equitable relief or otherwise for losses sustained, liabilities incurred or benefits not derived by such Limited Partner in connection with such decisions so long as the Managing Partner has acted pursuant to its authority under this Agreement.
(c) Notwithstanding any other provision of this Agreement, the Delaware Limited Partnership Act or any applicable law, rule or regulation, each of the Partners and each other Person who may acquire an interest in Partnership Securities hereby (i) approves, ratifies and confirms the execution, delivery and performance by the parties thereto of the Purchase and Sale Agreement, the Investment Agreement, the Amended and Restated Exchange Agreement, the Amended and Restated Tax Receivable Agreement, the Group Partnership Agreements and the other agreements described in or filed as exhibits to the Registration Statement that are related to the transactions contemplated by the Registration Statement; (ii) agrees that the Managing Partner (on its own or through its delegation of such authority to any officer of the Partnership) is authorized to execute, deliver and perform the agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership, in each case in such form and with such terms as it in its sole discretion shall determine, without any further act, approval or vote of the Partners or the other Persons who may acquire an interest in Partnership Securities; and (iii) agrees that the execution, delivery or performance by the Managing Partner, any Group Member or any Affiliate of any of them, of this Agreement or any agreement authorized or permitted under this Agreement (including the exercise by the Managing Partner or any Affiliate of the Managing Partner of the rights accorded pursuant to Article XV), shall not constitute a breach by the Managing Partner of any duty that the Managing Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement (or any other agreements) or of any duty existing at law, in equity or otherwise.
Appears in 2 contracts
Sources: Limited Partnership Agreement (KKR & Co. L.P.), Limited Partnership Agreement (KKR & Co. L.P.)
Management. (a) The Managing General Partner of the Partnership generally shall conduct, direct and manage all activities of the Partnership generally, and the Managing General Partner of each Series shall conduct, direct and manage all activities of the Series for which it serves as Managing General Partner. A. Except as otherwise expressly provided in this Agreement, (i) all management powers over the business and affairs of the Partnership generally are and shall be exclusively vested in the Managing General Partner of the Partnership generallyPartner, and no Limited Partner or other General Partner shall have any right to participate in or exercise control or management power over the business and affairs of (or authority to bind) the Partnership generally and (ii) all management powers over the business and affairs of each Series shall be exclusively vested in the Managing Partnership. The General Partner of such Series, and no may not be removed by the Limited Partner Partners with or other General Partner shall have any management power over the business and affairs of (or authority to bind) such Serieswithout cause. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or that which are granted to a Managing the General Partner under any other provision of this Agreement, each Managing the General Partner, subject to any approval required by Section 7.4, Section 7.5 or any other provision of this Agreement7.3 hereof, shall have full power and authority to do all things and on such terms as it determines to be deemed necessary or appropriate desirable by it to conduct the business of the Partnership generally or the applicable Series, as the case may bePartnership, to exercise all powers set forth in Section 2.5 3.2 hereof and to effectuate the purposes set forth in Section 2.43.1 hereof, including the followingincluding, without limitation:
(i1) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money to permit the Partnership to make distributions to its Partners in such amounts as will permit the General Partner (so long as the General Partner qualifies as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Section 4981 of the Code) and to make distributions to the General Partner such that the General Partner can distribute to its shareholders amounts sufficient to permit the General Partner to maintain REIT status), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtedness (including the securing of same by deed to secure debt, mortgage, deed of trust or other lien or encumbrance on the Partnership's assets) and the incurring of any other obligationsobligations it deems necessary for the conduct of the activities of the Partnership;
(ii2) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership and each Series (other than in connection with the matters set forth in Section 9.3)Partnership;
(iii3) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the applicable Series Partnership (including the exercise or grant of any conversion, option, privilege, or subscription right or other right available in connection with any assets at any time held by the Partnership) or the merger or other combination of the Partnership with or into another Personentity (all of the foregoing subject to any prior approval only to the extent required by Section 7.3 hereof);
(iv4) the use of the assets of the applicable Series Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms it sees fit, including, without limitation, the financing of the conduct of the operations of the General Partner, the Partnership or any of the Partnership's Subsidiaries, the lending of funds to other Persons (including, without limitation, the Subsidiaries of the Partnership and/or the General Partner) and the repayment of obligations of the Partnership and its Subsidiaries and any other Person in which it has an equity investment, and the making of capital contributions to its Subsidiaries;
(v5) the management, operation, leasing, landscaping, repair, alteration, demolition or improvement of any real property or improvements owned by the Partnership or any Subsidiary of the Partnership;
(6) the negotiation, execution execution, and performance of any contracts, conveyances or other instruments on behalf that the General Partner considers useful or necessary to the conduct of the Partnership generally Partnership's operations or the applicable Seriesimplementation of the General Partner's powers under this Agreement, including contracting with contractors, developers, consultants, accountants, legal counsel, other professional advisors and other agents and the payment of their expenses and compensation out of the Partnership's assets;
(vi7) the distribution of Partnership cash or property of the applicable Seriesother Partnership assets in accordance with this Agreement;
(vii8) holding, managing, investing and reinvesting cash and other assets of the Partnership;
(9) the collection and receipt of revenues and income of the Partnership;
(10) the establishment of one or more divisions of the Partnership, the selection and dismissal of employees of the Partnership, any division of the Partnership, or the General Partner (including, without limitation, employees having titles such as "president," "vice president," "secretary" and "treasurer" of the Partnership, any division of the Partnership, or the General Partner), and agents, outside attorneys, accountants, consultants and contractors of the General Partner or the Partnership or any division of the Partnership, and the determination of their compensation and other terms of employment or hiring;
(11) the maintenance of separate or joint such insurance policies for the benefit of the Partnership, any Series, any Partnership and the Partners as it deems necessary or any Indemniteesappropriate;
(viii12) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies ventures or other relationships subject that it deems desirable (including, without limitation, the acquisition of interests in, and the contributions of property to, its Subsidiaries and any other Person in which it has an equity investment from time to the restrictions set forth in Section 2.4time);
(ix13) the control of any matters affecting the rights and obligations of the Partnership or the applicable SeriesPartnership, including the bringing and defending settlement, compromise, submission to arbitration or any other form of actions at law dispute resolution, or in equity and otherwise engaging in abandonment of, any claim, cause of action, liability, debt or damages, due or owing to or from the conduct Partnership, the commencement or defense of litigationsuits, legal proceedings, administrative proceedings, arbitration or mediation other forms of dispute, resolution, and the representation of the Partnership in all suits or legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, the incurring of legal expense expense, and the settlement of claims and litigation; and
(x) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(14) the undertaking of any action in connection with the Partnership's direct or indirect investment in its Subsidiaries or any other Person (including, without limitation, the contribution or loan of funds by the Partnership to such Persons);
(15) the determination of the fair market value of any Partnership property distributed in kind using such reasonable method of valuation as it may adopt;
(16) the exercise, directly or indirectly, through any attorney-in-fact acting under a general or limited power of attorney, any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(17) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(18) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest pursuant to contractual or other arrangements with such Person; and
(19) the making, execution and delivery of any and all deeds, leases, notes, deeds to secure debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate in the judgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement.
B. Each of the Limited Partners agrees that the General Partner is authorized to execute, deliver and perform the above-mentioned agreements and transactions on behalf of the Partnership without any further act, approval or vote of the Partners, notwithstanding any other provision of this Agreement (except as provided in Section 7.3), the Act or any applicable law, rule or regulation, to the fullest extent permitted under the Act or other applicable law. The execution, delivery or performance by the General Partner or the Partnership of any agreement authorized or permitted under this Agreement shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement or of any duty stated or implied by law or equity.
C. At all times from and after the date hereof, the General Partner may cause the Partnership to obtain and maintain (i) casualty, liability and other insurance on the properties of the Partnership and (ii) liability insurance for the Indemnitees hereunder.
D. At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain at any and all times working capital accounts and other cash or similar balances in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
E. In exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner of any action taken by it; provided that, if the General Partner decides to refinance (directly or indirectly) any outstanding indebtedness of the Partnership, the General Partner shall use reasonable efforts to structure such refinancing in a manner that minimizes any adverse tax consequences therefrom to the Limited Partners, and provided further that, in deciding whether or not to dispose of any property that represents more than one percent of the Partnership's total assets, the General Partner shall consider in good faith the income tax consequences of such disposition for both the General Partners and the Limited Partners. The General Partner and the Partnership shall not have liability to a Limited Partner under any circumstances as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner pursuant to its authority under this Agreement.
Appears in 2 contracts
Sources: Agreement of Limited Partnership (Colonial Properties Trust), Agreement of Limited Partnership (Colonial Properties Trust)
Management. (a) The Managing General Partner of the Partnership generally shall conduct, direct and manage all activities of the Partnership generally, and the Managing General Partner of each Series shall conduct, direct and manage all activities of the Series for which it serves as Managing General Partner. Except as otherwise expressly provided in this Agreement, (i) all management powers over the business and affairs of the Partnership generally are and shall be exclusively vested in the Managing General Partner of the Partnership generallyPartner, and no Limited Partner or other General Partner shall have any right to participate in or exercise control or management power over the business and affairs of (or authority to bind) the Partnership generally and (ii) all management powers over the business and affairs of each Series shall be exclusively vested in the Managing Partnership. The General Partner may not be removed by the Limited Partners with or without cause, except with the consent of such Series, and no Limited Partner or other the General Partner shall have any management power over the business and affairs of (or authority to bind) such SeriesPartner. In addition to the powers now or hereafter granted to a general partner of a limited partnership under applicable law the Act or that are granted to a Managing the General Partner under any other provision of this Agreement, each Managing the General Partner, subject to any approval required by Section 7.4the other provisions hereof including, without limitation, Section 7.5 or any other provision of this Agreement15.15, shall have full power and authority to do all things and on such terms as it determines to be deemed necessary or appropriate desirable by it to conduct the business of the Partnership generally or the applicable Series, as the case may bePartnership, to exercise all powers set forth in Section 2.5 3.02 hereof and to effectuate the purposes set forth in Section 2.43.01 hereof, including the followingincluding, without limitation:
(i) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money or selling assets to permit the Partnership to make distributions in such amounts as will permit the Parent (so long as the Parent desires to qualify as a REIT) to avoid the payment of any income or excise tax under the Code and to make distributions to its stockholders sufficient to permit the Parent to qualify as a REIT or otherwise to satisfy the REIT Requirements), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtedness (including the securing of same by deed to secure debt, mortgage, deed of trust or other lien or encumbrance on the Partnership’s assets) and the incurring of any other obligationsobligations that it deems necessary for the conduct of the activities of the Partnership;
(ii) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership and each Series (other than in connection with the matters set forth in Section 9.3)Partnership;
(iii) subject to Section 11.02 hereof, the acquisition, dispositionsale, mortgagelease, pledgetransfer, encumbranceexchange or other disposition of any, hypothecation all or exchange of any or substantially all of the assets of the applicable Series Partnership (including, but not limited to, the exercise or grant of any conversion, option, privilege or subscription right or any other right available in connection with any assets at any time held by the Partnership) or the merger merger, consolidation, reorganization or other combination of the Partnership with or into another Personentity;
(iv) the mortgage, pledge, encumbrance or hypothecation of any assets of the Partnership, the assignment of any assets of the Partnership in trust for creditors or on the promise of the assignee to pay the debts of the Partnership, the use of the assets of the applicable Series Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms that it sees fit, including, without limitation, the financing of the operations and activities of the General Partner, the Parent, the Partnership or any of the Partnership’s Subsidiaries, the lending of funds to other Persons (including, without limitation, the Partnership’s Subsidiaries) and the repayment of obligations of the Partnership, its Subsidiaries and any other Person in which the Partnership has an equity investment, and the making of capital contributions to and equity investments in the Partnership’s Subsidiaries;
(v) the use of the assets of the Partnership (including, without limitation, cash on hand) for any purpose consistent with the terms of this Agreement and on any terms it sees fit, including, without limitation, the financing of the conduct of the operations of the Parent, the General Partner, the Partnership or any of the Partnership’s Subsidiaries, the lending of funds to other Persons (including, without limitation, the Parent, the General Partner and its Subsidiaries and the Partnership’s Subsidiaries) and the repayment of obligations of the Partnership and its Subsidiaries and any other Person in which the Partnership has an equity investment and the making of capital contributions to its Subsidiaries;
(vi) the management, operation, leasing, maintenance, repair, alteration, demolition, replacement or improvement of any Property, including, without limitation, any Contributed Property, or other asset of the Partnership or any Subsidiary, whether pursuant to a Services Agreement or otherwise;
(vii) the negotiation, execution and performance of any contracts, leases, conveyances or other instruments on behalf that the General Partner considers useful or necessary to the conduct of the Partnership generally Partnership’s operations or the applicable Seriesimplementation of the General Partner’s powers under this Agreement, including contracting with contractors, developers, consultants, government authorities, accountants, legal counsel, other professional advisors and other agents (including the Transfer Agent) and the payment of their expenses and compensation out of the Partnership’s assets;
(viviii) the distribution of Partnership cash or property other Partnership assets in accordance with this Agreement, the holding, management, investment and reinvestment of cash and other assets of the applicable SeriesPartnership and the collection and receipt of revenues, rents and income of the Partnership;
(viiix) the maintenance of separate or joint such insurance policies (including, without limitation, directors and officers insurance) for the benefit of the PartnershipPartnership and the Partners (including, any Serieswithout limitation, any Partners the Parent and the General Partner) as the General Partner deems necessary or any Indemniteesappropriate, including, without limitation, (i) casualty, liability and other insurance on the Properties and (ii) liability insurance for the Indemnitees hereunder;
(viiix) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies companies, joint ventures or other relationships subject that the General Partner deems desirable (including, without limitation, the acquisition of interests in, and the contributions of property to, any Subsidiary and any other Person in which it has an equity investment from time to time); provided, however, that as long as the restrictions set forth Parent desires to qualify as a REIT, the General Partner may not engage in Section 2.4any such formation, acquisition or contribution that would cause the Parent not to qualify as a REIT;
(ixxi) the filing of applications, communicating and otherwise dealing with any and all governmental agencies having jurisdiction over, or in any way affecting, the Partnership’s assets or any other aspect of the Partnership business;
(xii) the control of any matters affecting the rights and obligations of the Partnership or the applicable SeriesPartnership, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigationsettlement, compromise, submission to arbitration or mediation any other form of dispute resolution, or abandonment, of any claim, cause of action, liability, debt or damages, due or owing to or from the Partnership, the commencement or defense of suits, legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, and the representation of the Partnership in all suits or legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, the incurring of legal expense expense, and the settlement of claims and litigation; and
(x) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xiii) the undertaking of any action in connection with the Partnership’s direct or indirect investment in any Subsidiary or any other Person (including, without limitation, the contribution or loan of funds by the Partnership to such Persons);
(xiv) except as otherwise specifically set forth in this Agreement, the determination of the fair market value of any Partnership property distributed in-kind using such reasonable method of valuation as it may adopt; provided, that such methods are otherwise consistent with the requirements of this Agreement;
(xv) the enforcement of any rights against any Partner pursuant to representations, warranties, covenants and indemnities relating to such Partner’s contribution of property or assets to the Partnership;
(xvi) the exercise, directly or indirectly, through any attorney-in-fact acting under a general or limited power-of-attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(xvii) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(xviii) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest, pursuant to contractual or other arrangements with such Person;
(xix) the making, execution and delivery of any and all deeds, leases, notes, deeds to secure Debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate in the judgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement;
(xx) the issuance of additional Partnership Units in connection with Capital Contributions by Additional Limited Partners and additional Capital Contributions by Partners pursuant to Article IV hereof;
(xxi) the selection and dismissal of Parent Employees (including, without limitation, employees having titles or offices such as president, vice president, secretary and treasurer), and agents, outside attorneys, investment and other advisers, managers, accountants, consultants and contractors of the Partnership, the Parent or the General Partner, the determination of their compensation and other terms of employment or hiring and the delegation to any such Parent Employee the authority to conduct the business of the Partnership in accordance with the terms of this Agreement;
(xxii) the distribution of cash to acquire Partnership Units held by a Limited Partner in connection with a Limited Partner’s exercise of its Redemption right under Section 8.06 hereof;
(xxiii) maintaining, or causing to be maintained, the books and records of the Partnership or the Transfer Agent to reflect accurately at all times the Capital Contributions and Partnership Interests of the Holders as the same are adjusted from time to time to the extent necessary to reflect redemptions, Capital Contributions, the number of Partnership Units (including any issuance thereof), the admission of any Additional Limited Partner or any Substituted Limited Partner or otherwise;
(xxiv) the determination regarding whether a payment to a Limited Partner who exercises its Redemption right under Section 8.06 that is assumed by the General Partner will be paid in the form of the Cash Amount or the Common REIT Shares Amount, except as such determination may be limited by Section 8.06.
(xxv) the collection and receipt of revenues and income of the Partnership;
(xxvi) the registration of any class of securities of the Partnership under the Securities Act or the Exchange Act, and the listing of any securities of the Partnership on any exchange.
(xxvii) an election to dissolve the Partnership pursuant to Section 13.01(b) hereof; and
(xxviii) the taking of any action necessary or appropriate to enable the Parent to qualify as a REIT (so long as the Parent desires to qualify as a REIT).
(b) Each of the Limited Partners agrees that, except as provided in Section 15.15 hereof, the General Partner is authorized to execute, deliver and perform the above-mentioned agreements and transactions on behalf of the Partnership without any further act, approval or vote of the Limited Partners, notwithstanding any other provision of this Agreement, the Act or any applicable law, rule or regulation and, in the absence of any specific corporate action on the part of the General Partner to the contrary, the taking of any action or the execution of any such document or writing by an officer of the General Partner, in the name and on behalf of the General Partner, in its capacity as the general partner of the Partnership, shall conclusively evidence (1) the approval thereof by the General Partner, in its capacity as the general partner of the Partnership, (2) the General Partner’s determination that such action, document or writing is necessary or desirable to conduct the business and affairs of the Partnership, exercise the powers of the Partnership under this Agreement and the Act or effectuate the purposes of the Partnership, or any other determination by the General Partner required by this Agreement in connection with the taking of such action or execution of such document or writing, and (3) the authority of such officer with respect thereto.
(c) The General Partner may cause the Partnership to obtain and maintain (i) casualty, liability and other insurance on the Properties and (ii) liability insurance for the Indemnitees hereunder.
(d) The General Partner may cause the Partnership to establish and maintain working capital and other reserves in such amounts as the General Partner deems appropriate and reasonable from time to time.
(e) In exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner (including the General Partner) of any action taken (or not taken) by it. Except as may be provided in a separate written agreement between the Partnership and the Limited Partners, the General Partner and the Partnership shall not have liability to a Limited Partner under any circumstances as a result of a tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner pursuant to its authority under this Agreement provided, that the General Partner has acted pursuant to its authority under this Agreement.
Appears in 2 contracts
Sources: Second Amended and Restated Agreement of Limited Partnership (Gladstone Commercial Corp), Limited Partnership Agreement (GLADSTONE LAND Corp)
Management. (a) The Managing General Partner of the Partnership generally shall conduct, direct and manage all activities of the Partnership generally, and the Managing General Partner of each Series shall conduct, direct and manage all activities of the Series for which it serves as Managing General Partner. Except as otherwise expressly provided in this Agreement, (i) all management powers over the business and affairs of the Partnership generally are and shall be exclusively vested in the Managing General Partner of the Partnership generallyPartner, and no Limited Partner or other General Partner shall have any right to participate in or exercise control or management power over the business and affairs of (or authority to bind) the Partnership generally and (ii) all management powers over the business and affairs of each Series shall be exclusively vested in the Managing Partnership. The General Partner may not be removed by the Partners with or without cause, except with the consent of such Series, and no Limited Partner or other the General Partner shall have any management power over the business and affairs of (or authority to bind) such SeriesPartner. In addition to the powers now or hereafter granted to a general partner of a limited partnership under applicable law or that are granted to a Managing the General Partner under any other provision of this Agreement, each Managing the General Partner, subject to any approval required by the other provisions hereof including Section 7.4, Section 7.5 or any other provision of this Agreement7.03, shall have full power and authority to do all things and on such terms as it determines to be deemed necessary or appropriate desirable by it to conduct the business of the Partnership generally or the applicable Series, as the case may bePartnership, to exercise all powers set forth in Section 2.5 3.02 hereof and to effectuate the purposes set forth in Section 2.43.01 hereof, including the followingincluding, without limitation:
(i) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money or selling assets to permit the Partnership to make distributions to its Partners in such amounts as will permit the General Partner (so long as the General Partner desires to maintain or restore its qualification as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Code Section 4981) and to make distributions to its stockholders sufficient to permit the General Partner to maintain or restore REIT qualification or otherwise to satisfy the REIT Requirements), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtedness (including the securing of same by deed to secure debt, mortgage, deed of trust or other lien or encumbrance on the Partnership’s assets) and the incurring of any other obligationsobligations that it deems necessary for the conduct of the activities of the Partnership;
(ii) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership, the registration of any class of securities of the Partnership under the Exchange Act and each Series (other than in connection with the matters set forth in Section 9.3)listing of any debt securities of the Partnership on any exchange;
(iii) subject to Section 11.02 hereof, the acquisition, dispositionsale, mortgagelease, pledgetransfer, encumbranceexchange or other disposition of any, hypothecation all or exchange of any or substantially all of the assets of the applicable Series Partnership (including, but not limited to, the exercise or grant of any conversion, option, privilege or subscription right or any other right available in connection with any assets at any time held by the Partnership) or the merger merger, consolidation, reorganization or other combination of the Partnership with or into another Personentity;
(iv) the mortgage, pledge, encumbrance or hypothecation of any assets of the Partnership, the use of the assets of the applicable Series Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms that it sees fit, including, without limitation, the financing of the operations and activities of the General Partner, the Partnership or any of the Partnership’s Subsidiaries, the lending of funds to other Persons (including, without limitation, the Partnership’s Subsidiaries) and the repayment of obligations of the Partnership, its Subsidiaries and any other Person in which the Partnership has an equity investment, and the making of capital contributions to and equity investments in the Partnership’s Subsidiaries;
(v) the use of the assets of the Partnership (including, without limitation, cash on hand) for any purpose consistent with the terms of this Agreement and on any terms it sees fit, including, without limitation, the financing of the conduct of the operations of the General Partner, the Partnership or any of the Partnership’s Subsidiaries, the lending of funds to other Persons (including, without limitation, the General Partner and its Subsidiaries and the Partnership’s Subsidiaries) and the repayment of obligations of the Partnership and its Subsidiaries and any other Person in which the Partnership has an equity investment and the making of capital contributions to its Subsidiaries;
(vi) the management, operation, leasing, landscaping, repair, alteration, demolition, replacement or improvement of any Property, including, without limitation, any Contributed Property, or other asset of the Partnership or any Subsidiary, whether pursuant to a Services Agreement or otherwise;
(vii) the negotiation, execution and performance of any contracts, leases, conveyances or other instruments on behalf that the General Partner considers useful or necessary to the conduct of the Partnership generally Partnership’s operations or the applicable Seriesimplementation of the General Partner’s powers under this Agreement, including contracting with contractors, developers, consultants, accountants, legal counsel, other professional advisors and other agents and the payment of their expenses and compensation out of the Partnership’s assets;
(viviii) the distribution of Partnership cash or property other Partnership assets in accordance with this Agreement, the holding, management, investment and reinvestment of cash and other assets of the applicable SeriesPartnership and the collection and receipt of revenues, rents and income of the Partnership;
(viiix) the maintenance of separate or joint such insurance policies for the benefit of the PartnershipPartnership and the Partners as the General Partner deems necessary or appropriate, any Seriesincluding, any Partners or any Indemniteeswithout limitation, (i) casualty, liability and other insurance on the Properties and (ii) liability insurance for the Indemnitees hereunder;
(viiix) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies companies, joint ventures or other relationships subject that the General Partner deems desirable (including, without limitation, the acquisition of interests in, and the contributions of property to, any Subsidiary and any other Person in which it has an equity investment from time to time); provided, however, that as long as the restrictions set forth General Partner has determined to continue to qualify as a REIT, the General Partner may not engage in any such formation, acquisition or contribution that would cause it to fail to qualify as a REIT within the meaning of Code Section 2.4856(a) (so long as the General Partner desires to maintain its qualification as a REIT);
(ixxi) the filing of applications, communicating and otherwise dealing with any and all governmental agencies having jurisdiction over, or in any way affecting, the Partnership’s assets or any other aspect of the Partnership business;
(xii) the control of any matters affecting the rights and obligations of the Partnership or the applicable SeriesPartnership, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigationsettlement, compromise, submission to arbitration or mediation any other form of dispute resolution, or abandonment, of any claim, cause of action, liability, debt or damages, due or owing to or from the Partnership, the commencement or defense of suits, legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, and the representation of the Partnership in all suits or legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, the incurring of legal expense expense, and the settlement of claims and litigation; and
(x) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xiii) the undertaking of any action in connection with the Partnership’s direct or indirect investment in any Subsidiary or any other Person (including, without limitation, the contribution or loan of funds by the Partnership to such Persons);
(xiv) except as otherwise specifically set forth in this Agreement, the determination of the fair market value of any Partnership property distributed in-kind using such reasonable method of valuation as it may adopt; provided, that such methods are otherwise consistent with the requirements of this Agreement;
(xv) the enforcement of any rights against any Partner pursuant to representations, warranties, covenants and indemnities relating to such Partner’s contribution of property or assets to the Partnership;
(xvi) the exercise, directly or indirectly, through any attorney-in-fact acting under a general or limited power-of-attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(xvii) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(xviii) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest, pursuant to contractual or other arrangements with such Person;
(xix) the making, execution and delivery of any and all deeds, leases, notes, deeds to secure Debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate in the judgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement;
(xx) the issuance of additional Partnership Units, as appropriate and in the General Partner’s sole and absolute discretion, in connection with Capital Contributions by Additional Limited Partners and additional Capital Contributions by Partners pursuant to Article IV hereof;
(xxi) the selection and dismissal of General Partner Employees (including, without limitation, employees having titles or offices such as president, vice president, secretary and treasurer), and agents, outside attorneys, accountants, consultants and contractors of the Partnership or the General Partner, the determination of their compensation and other terms of employment or hiring and the delegation to any such General Partner Employee the authority to conduct the business of the Partnership in accordance with the terms of this Agreement;
(xxii) the distribution of cash to acquire Partnership Units held by a Limited Partner in connection with a Limited Partner’s exercise of its Redemption right under Section 8.06 hereof;
(xxiii) the amendment and restatement of Exhibit A hereto to reflect accurately at all times the Capital Contributions and Percentage Interests of the Partners as the same are adjusted from time to time to the extent necessary to reflect redemptions, Capital Contributions, the issuance of Partnership Units, the admission of any Additional Limited Partner or any Substituted Limited Partner or otherwise, which amendment and restatement, notwithstanding anything in this Agreement to the contrary, shall not be deemed an amendment to this Agreement, as long as the matter or event being reflected in Exhibit A hereto otherwise is authorized by this Agreement;
(xxiv) the determination regarding whether a payment to a Partner who exercises its Redemption Right under Section 8.06 that is assumed by the General Partner will be paid in the form of the Cash Amount or the REIT Shares Amount, except as such determination may be limited by Section 8.06.
(xxv) the collection and receipt of revenues and income of the Partnership;
(xxvi) the registration of any class of securities of the Partnership under the Securities Act or the Exchange Act, and the listing of any debt securities of the Partnership on any exchange.
(xxvii) an election to dissolve the Partnership pursuant to Section 13.01(d) hereof; and
(xxviii) the taking of any action necessary or appropriate to enable the General Partner to qualify as a REIT (so long as the General Partner desires to maintain its qualification as a REIT).
(b) Each of the Limited Partners agrees that, except as provided in Section 7.03 hereof, the General Partner is authorized to execute, deliver and perform the above-mentioned agreements and transactions on behalf of the Partnership without any further act, approval or vote of the Partners, notwithstanding any other provision of this Agreement, the Act or any applicable law, rule or regulation.
(c) At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain working capital and other reserves in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
(d) In exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner (including the General Partner) of any action taken (or not taken) by it. Except as may be provided in a separate written agreement between the Partnership and the Limited Partners, the General Partner and the Partnership shall not have liability to a Limited Partner under any circumstances as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner pursuant to its authority under this Agreement provided, that the General Partner has acted in good faith and pursuant to its authority under this Agreement.
Appears in 2 contracts
Sources: Limited Partnership Agreement (DLC Realty Trust, Inc.), Limited Partnership Agreement (DLC Realty Trust, Inc.)
Management. (a) The Managing General Partner of the Partnership generally shall conduct, direct and manage all activities of the Partnership generally, and the Managing General Partner of each Series shall conduct, direct and manage all activities of the Series for which it serves as Managing General Partner. Except as otherwise expressly provided in this Agreement, (i) all management powers over the business and affairs of the Partnership generally are and shall be exclusively vested in the Managing General Partner of the Partnership generallyPartner, and no Limited Partner or other General Partner shall have any right to participate in or exercise control or management power over the business and affairs of (or authority to bind) the Partnership generally and (ii) all management powers over the business and affairs of each Series shall be exclusively vested in the Managing Partnership. The General Partner may not be removed by the Limited Partners, except with the consent of such Series, and no Limited Partner or other the General Partner shall have any management power over the business and affairs of (or authority to bind) such SeriesPartner. In addition to the powers now or hereafter granted to a general partner of a limited partnership under applicable law or that are granted to a Managing the General Partner under any other provision of this Agreement, each Managing the General Partner, subject to any approval required by the other provisions hereof including Section 7.4, Section 7.5 or any other provision of this Agreement7.03, shall have full power and authority to do all things and on such terms as it determines to be deemed necessary or appropriate desirable by it to conduct the business of the Partnership generally or the applicable Series, as the case may bePartnership, to exercise all powers set forth in Section 2.5 3.02 hereof and to effectuate the purposes set forth in Section 2.43.01 hereof, including the followingincluding, without limitation:
(i) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money or selling assets to permit the Partnership to make distributions to its Partners in such amounts as will permit the General Partner (so long as the General Partner desires to maintain or restore its qualification as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Code Section 4981) and to make distributions to its stockholders sufficient to permit the General Partner to maintain or restore REIT qualification or otherwise to satisfy the REIT Requirements), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtedness (including the securing of same by deed to secure debt, mortgage, deed of trust or other lien or encumbrance on the Partnership’s assets) and the incurring of any other obligationsobligations that it deems necessary for the conduct of the activities of the Partnership;
(ii) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership, the registration of any class of securities of the Partnership under the Exchange Act and each Series (other than in connection with the matters set forth in Section 9.3)listing of any debt securities of the Partnership on any exchange;
(iii) subject to Section 11.02 hereof, the acquisition, dispositionsale, mortgagelease, pledgetransfer, encumbranceexchange or other disposition of any, hypothecation all or exchange of any or substantially all of the assets of the applicable Series Partnership (including, but not limited to, the exercise or grant of any conversion, option, privilege or subscription right or any other right available in connection with any assets at any time held by the Partnership) or the merger merger, consolidation, reorganization or other combination of the Partnership with or into another Personentity;
(iv) the mortgage, pledge, encumbrance or hypothecation of any assets of the Partnership, the use of the assets of the applicable Series Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms that it sees fit, including, without limitation, the financing of the operations and activities of the General Partner, the Partnership or any of the Partnership’s Subsidiaries, the lending of funds to other Persons (including, without limitation, the Partnership’s Subsidiaries) and the repayment of obligations of the Partnership, its Subsidiaries and any other Person in which the Partnership has an equity investment, and the making of capital contributions to and equity investments in the Partnership’s Subsidiaries;
(v) the use of the assets of the Partnership (including, without limitation, cash on hand) for any purpose consistent with the terms of this Agreement and on any terms it sees fit, including, without limitation, the financing of the conduct of the operations of the General Partner, the Partnership or any of the Partnership’s Subsidiaries, the lending of funds to other Persons (including, without limitation, the General Partner and its Subsidiaries and the Partnership’s Subsidiaries) and the repayment of obligations of the Partnership and its Subsidiaries and any other Person in which the Partnership has an equity investment and the making of capital contributions to its Subsidiaries;
(vi) the management, operation, leasing, landscaping, repair, alteration, demolition, replacement or improvement of any Property, including, without limitation, any Contributed Property, or other asset of the Partnership or any Subsidiary, whether pursuant to a Services Agreement or otherwise;
(vii) the negotiation, execution and performance of any contracts, leases, conveyances or other instruments on behalf that the General Partner considers useful or necessary to the conduct of the Partnership generally Partnership’s operations or the applicable Seriesimplementation of the General Partner’s powers under this Agreement, including contracting with contractors, developers, consultants, accountants, legal counsel, other professional advisors and other agents and the payment of their expenses and compensation out of the Partnership’s assets;
(viviii) the distribution of Partnership cash or property other Partnership assets in accordance with this Agreement, the holding, management, investment and reinvestment of cash and other assets of the applicable SeriesPartnership and the collection and receipt of revenues, rents and income of the Partnership;
(viiix) the maintenance of separate or joint such insurance policies for the benefit of the PartnershipPartnership and the Partners as the General Partner deems necessary or appropriate, any Seriesincluding, any Partners or any Indemniteeswithout limitation, (i) casualty, liability and other insurance on the Properties and (ii) liability insurance for the Indemnitees hereunder;
(viiix) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies companies, joint ventures or other relationships subject that the General Partner deems desirable (including, without limitation, the acquisition of interests in, and the contributions of property to, any Subsidiary and any other Person in which it has an equity investment from time to time); provided, however, that as long as the restrictions set forth General Partner has determined to continue to qualify as a REIT, the General Partner may not engage in any such formation, acquisition or contribution that would cause it to fail to qualify as a REIT within the meaning of Code Section 2.4856(a) (so long as the General Partner desires to maintain its qualification as a REIT);
(ixxi) the filing of applications, communicating and otherwise dealing with any and all governmental agencies having jurisdiction over, or in any way affecting, the Partnership’s assets or any other aspect of the Partnership business;
(xii) the control of any matters affecting the rights and obligations of the Partnership or the applicable SeriesPartnership, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigationsettlement, compromise, submission to arbitration or mediation any other form of dispute resolution, or abandonment, of any claim, cause of action, liability, debt or damages, due or owing to or from the Partnership, the commencement or defense of suits, legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, and the representation of the Partnership in all suits or legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, the incurring of legal expense expense, and the settlement of claims and litigation; and
(x) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xiii) the undertaking of any action in connection with the Partnership’s direct or indirect investment in any Subsidiary or any other Person (including, without limitation, the contribution or loan of funds by the Partnership to such Persons);
(xiv) except as otherwise specifically set forth in this Agreement, the determination of the fair market value of any Partnership property distributed in-kind using such reasonable method of valuation as it may adopt; provided, that such methods are otherwise consistent with the requirements of this Agreement;
(xv) the enforcement of any rights against any Partner pursuant to representations, warranties, covenants and indemnities relating to such Partner’s contribution of property or assets to the Partnership;
(xvi) the exercise, directly or indirectly, through any attorney-in-fact acting under a general or limited power-of-attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(xvii) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(xviii) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest, pursuant to contractual or other arrangements with such Person;
(xix) the making, execution and delivery of any and all deeds, leases, notes, deeds to secure Debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate in the judgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement;
(xx) the issuance of additional Partnership Units, as appropriate and in the General Partner’s sole and absolute discretion, in connection with Capital Contributions by Additional Limited Partners and additional Capital Contributions by Partners pursuant to Article IV hereof;
(xxi) the selection and dismissal of employees (including, without limitation, employees having titles or offices such as president, vice president, secretary and treasurer), and agents, outside attorneys, accountants, consultants and contractors of the Partnership or the General Partner, the determination of their compensation and other terms of employment or hiring and the delegation to any such employees the authority to conduct the business of the Partnership in accordance with the terms of this Agreement;
(xxii) the distribution of cash to acquire Partnership Units held by a Limited Partner in connection with a Limited Partner’s exercise of its Redemption right under Section 8.06 hereof;
(xxiii) the amendment and restatement of Exhibit A hereto to reflect accurately at all times the Capital Contributions and Percentage Interests of the Partners as the same are adjusted from time to time to the extent necessary to reflect redemptions, Capital Contributions, the issuance of Partnership Units, the admission of any Additional Limited Partner or any Substituted Limited Partner or otherwise, which amendment and restatement, notwithstanding anything in this Agreement to the contrary, shall not be deemed an amendment to this Agreement, as long as the matter or event being reflected in Exhibit A hereto otherwise is authorized by this Agreement;
(xxiv) the determination regarding whether a payment to a Partner who exercises its Redemption Right under Section 8.06 that is assumed by the General Partner will be paid in the form of the Cash Amount or the REIT Shares Amount, except as such determination may be limited by Section 8.06;
(xxv) the collection and receipt of revenues and income of the Partnership;
(xxvi) the registration of any class of securities of the Partnership under the Securities Act or the Exchange Act, and the listing of any debt securities of the Partnership on any exchange;
(xxvii) an election to dissolve the Partnership pursuant to Section 13.01(b) hereof; and
(xxviii) the taking of any action necessary or appropriate to enable the General Partner to qualify as a REIT (so long as the General Partner desires to maintain its qualification as a REIT).
(b) Each of the Limited Partners agrees that, except as provided in Section 7.03 hereof, the General Partner is authorized to execute, deliver and perform the above-mentioned agreements and transactions on behalf of the Partnership without any further act, approval or vote of the Partners, notwithstanding any other provision of this Agreement, the Act or any applicable law, rule or regulation.
(c) At all times from and after the Effective Date, the General Partner may cause the Partnership to establish and maintain working capital and other reserves in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
(d) In exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner (including the General Partner) of any action taken (or not taken) by it. Except as may be provided in a separate written agreement between the Partnership and the Limited Partners, the General Partner and the Partnership shall not have liability to a Limited Partner under any circumstances as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner pursuant to its authority under this Agreement provided, that the General Partner has acted in good faith and pursuant to its authority under this Agreement.
Appears in 2 contracts
Sources: Limited Partnership Agreement (Ready Capital Corp), Limited Partnership Agreement (ZAIS Financial Corp.)
Management. (a) The Managing General Partner of the Partnership generally shall conduct, direct and manage all activities of the Partnership generally, and the Managing General Partner of each Series shall conduct, direct and manage all activities of the Series for which it serves as Managing General Partner. A. Except as otherwise expressly provided in this Agreement, (i) all management powers over the business and affairs of the Partnership generally shall be are exclusively vested in the Managing General Partner of the Partnership generallyPartner, and no Limited Partner or other General Partner shall have any right to participate in or exercise control or management power over the business and affairs of (or authority to bind) the Partnership generally and (ii) all management powers over the business and affairs of each Series shall be exclusively vested in the Managing Partnership. The General Partner of such Series, and no may not be removed by the Limited Partner Partners with or other General Partner shall have any management power over the business and affairs of (or authority to bind) such Serieswithout cause. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or that which are granted to a Managing the General Partner under any other provision of this Agreement, each Managing the General Partner, subject to any approval required by Section 7.4, Section 7.5 or any the other provision of this Agreementprovisions hereof, shall have full power and authority to do all things and on such terms as it determines to be deemed necessary or appropriate desirable by it to conduct the business of the Partnership generally or the applicable Series, as the case may bePartnership, to exercise all powers set forth in Section 2.5 3.2 hereof and to effectuate the purposes set forth in Section 2.43.1 hereof, including the followingincluding, without limitation:
(i1) the making of any expenditures, the lending or of money, borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money to permit the Partnership to make distributions to its Partners in such amounts as will permit the General Partner (so long as the General Partner has determined to qualify as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Section 4981 of the Code), to make distributions to its stockholders sufficient to permit the General Partner to maintain REIT status and to satisfy any Put rights pursuant to Section 8.6), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtedness (including the securing of same by mortgage, deed of trust or other lien or encumbrance on the Partnership's assets) and the incurring of any other obligationsobligations it deems necessary for the conduct of the activities of the Partnership; provided, that all such borrowing, incurrence of Debt and prepayments shall be subject to the limitations set forth in Sections 4.4 and 4.5;
(ii2) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership and each Series (other than in connection with the matters set forth in Section 9.3)Partnership;
(iii3) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the applicable Series Partnership or the merger or other combination of the Partnership with or into another Person;entity; provided, that, in the event of any sale, exchange, disposition or other transfer of any property of the Partnership contributed at the time of the closing of the initial public offering of REIT Shares, occurring prior to the end of the fifteenth (15th) year following the Effective Date, the Partnership shall no later than the end of the calendar quarter in which such sale, exchange, disposition or other transfer becomes a taxable event to Partners effect a distribution of cash (or, at the option of the General Partner, a promissory note, bearing interest at the then approved price per annum equal to the dividend yield on the REIT Shares, based on the most recent quarterly dividend and the Value of a REIT Share as of the date of issuance of such note), and due and payable as soon as reasonably practicable but in no event later than 90 days after the date of issuance), in addition to its then regular quarterly distribution, in an amount such that the pro rata share thereof received by each Partner shall equal or exceed the total liability of such Partner for federal, state and local income and franchise taxes resulting from such sale, exchange, disposition or other transfer and from such distribution as determined in accordance with the books and records of the Partnership (which determination will be conclusive and binding absent manifest error); provided, further, that any Partner may elect not to receive all or any portion of such additional distribution and in such event, although such Partner's Capital Account will not be reduced to the extent that no distribution is received by such Partner, the Partner's Percentage Interest or the number of Partnership Units Considered owned by such Partner shall not be adjusted, it being the intent that the sole effect of the election not to receive a distribution will be to increase the amount of cash or other property to be received by such Partner upon a dissolution of the Partnership; and provided, further, however, that any Partner may elect not to receive all or any portion of such distribution in cash but in lieu thereof to receive a promissory note bearing interest at a rate per annum equal to the annualized dividend yield on the REIT Shares based on the most recent quarterly dividend and the Value of a REIT Share as of the date of issuance of such note and due and payable on the third anniversary of issuance.
(iv4) the mortgage, pledge, encumbrance or hypothecation of any Assets of the Partnership, and the use of the assets of the applicable Series Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms it sees fit, including, without limitation, the financing of the conduct of the operations of the General Partner or the Partnership, the lending of funds to other Persons (including, without limitation, the General Partner (if necessary to permit the financing or capitalization of a subsidiary of the General Partner or the Partnership) and any Subsidiaries of the Partnership) and the repayment of obligations of the Partnership, any of its Subsidiaries and any other Person in which it has an equity investment;
(v5) the negotiation, execution and performance of any contracts, leases, conveyances or other instruments on behalf that the General Partner considers useful or necessary to the conduct of the Partnership generally Partnership's operations or the applicable Seriesimplementation of the General Partner's powers under this Agreement;
(vi6) the distribution of Partnership cash or property of the applicable Seriesother Partnership assets in accordance with this Agreement;
(vii7) the selection and dismissal of employees of the Partnership (including, without limitation, employees having titles such as "president," "vice president," "secretary" and "treasurer"), and agents, outside attorneys, accountants, consultants and contractors of the Partnership and the determination of their compensation and other terms of employment or hiring;
(8) the maintenance of separate or joint such insurance policies for the benefit of the Partnership, any Series, any Partnership and the Partners as it deems necessary or any Indemniteesappropriate;
(viii9) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies ventures or other relationships subject that it deems desirable (including, without limitation, the acquisition of interests in, and the contributions of property to, any Subsidiary and any other Person in which it has an equity investment from time to time); provided that as long as the restrictions set forth General Partner has determined to continue to qualify as a REIT, the Partnership may not engage in Section 2.4any such formation, acquisition or contribution that would cause the General Partner to fail to qualify as a REIT;
(ix10) the control of any matters affecting the rights and anD obligations of the Partnership or the applicable SeriesPartnership, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigation, arbitration or mediation litigation and the incurring of legal expense and the settlement of claims and litigation; and
(x) , and the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(11) the undertaking of any action in connection with the Partnership's direct or indirect investment in any Person (including, without limitation, the contribution or loan of funds by the Partnership to such Persons);
(12) the determination of the fair market value of any Partnership property distributed in kind using such reasonable method of valuation as it may adopt, provided that such methods are otherwise consistent with requirements of this Agreement; and
(13) the enforcement of any rights against any Partner pursuant to representations, warranties, covenants and indemnities relating to such Partner's contribution of property or assets to the Partnership.
B. Each of the Limited Partners agrees that the General Partner is authorized to execute, deliver and perform the above-mentioned agreements and transactions on behalf of the Partnership without any further act, approval or vote of the Partners, notwithstanding any other provisions of this Agreement (except as provided in Section 7.3), the Act or any applicable law, rule or regulation. The execution, delivery or performance by the General Partner or the Partnership of any agreement authorized or permitted under this Agreement shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement or of any duty stated or implied by law or equity.
C. At all times from and after the date hereof, the General Partner may cause the Partnership to obtain and maintain (i) casualty, liability and other insurance on the properties of the Partnership and (ii) liability insurance for the Indemnities hereunder.
D. At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain working capital reserves in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
E. In exercising its authority under this Agreement, the General Partner may, but, other than as expressly set forth in the Contribution Agreements, shall be under no obligation to, take into account the tax consequences to any Partner (including the General Partner) of any action taken by the General Partner. The General Partner and the Partnership shall not have liability to a Partner under any circumstances as a result of an income tax liability incurred by such Partner as a result of an action (or inaction) by the General Partner pursuant to its authority under this Agreement.
Appears in 1 contract
Sources: Agreement of Limited Partnership (National Golf Properties Inc)
Management. (a) The Managing General Partner of the Partnership generally shall conduct, direct and manage all activities of the Partnership generally, and the Managing General Partner of each Series shall conduct, direct and manage all activities of the Series for which it serves as Managing General PartnerPartnership. Except as otherwise expressly provided in this Agreement, (i) all management powers over the business and affairs of the Partnership generally shall be exclusively vested in the Managing General Partner of the Partnership generallyPartner, and no Limited Partner or other General Partner shall have any management power over the business and affairs of (or authority to bind) the Partnership generally and (ii) all management powers over the business and affairs of each Series shall be exclusively vested in the Managing General Partner of such Series, and no Limited Partner or other General Partner shall have any management power over the business and affairs of (or authority to bind) such SeriesPartnership. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or that are granted to a the Managing General Partner under any other provision of this Agreement, each the Managing General Partner, subject to any approval required by Section 7.4, Section 7.5 or any other provision of this Agreement7.3, shall have full power and authority to do all things and on such terms as it determines determines, in its sole discretion, to be necessary or appropriate to conduct the business of the Partnership generally or the applicable Series, as the case may bePartnership, to exercise all powers set forth in Section 2.5 and to effectuate the purposes set forth in Section 2.4, including the following:
(i) the making of any expenditures, the lending or borrowing of money, the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtedness, including indebtedness that is convertible or exchangeable into Partnership Securities or options, rights, warrants or appreciation rights relating to Partnership Securities, and the incurring of any other obligations;
(ii) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership and each Series (other than in connection with the matters set forth in Section 9.3)Partnership;
(iii) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the applicable Series Partnership or the merger or other combination of the Partnership with or into another PersonPerson (the matters described in this clause (iii) being subject, however, to any prior approval that may be required by Section 7.3, Article XIV, Article XVI and Article XVII);
(iv) the use of the assets of the applicable Series Partnership (including cash on hand) for any purpose consistent with the terms of this Agreement, including the financing of the conduct of the operations of the Partnership Group; subject to Section 7.6(a), the lending of funds to other Persons; the repayment or guarantee of obligations of any Group Member and the making of Capital Contributions to any Group Member;
(v) the negotiation, execution and performance of any contracts, conveyances or other instruments on behalf (including instruments that limit the liability of the Partnership generally under contractual arrangements to all or particular assets of the applicable SeriesPartnership, with the other party to the contract to have no recourse against the Managing Partner or its assets other than their interest in the Partnership, even if same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case);
(vi) the distribution of cash or property of the applicable SeriesPartnership cash;
(vii) the selection and dismissal of employees (including employees having such as titles as the Managing Partner may determine in its sole discretion) and agents, outside attorneys, accountants, consultants and contractors and the determination of their compensation and other terms of employment or hiring;
(viii) the maintenance of separate or joint insurance policies for the benefit of the PartnershipPartnership Group, any Series, any the Partners or any and Indemnitees;
(viiiix) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies companies, corporations or other relationships (including the acquisition of interests in, and the contributions of property to, the Partnership’s Subsidiaries from time to time) subject to the restrictions set forth in Section 2.4;
(ixx) the control of any matters affecting the rights and obligations of the Partnership or the applicable SeriesPartnership, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigation, arbitration or mediation and the incurring of legal expense and the settlement of claims and litigation; and;
(xxi) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.7);
(xiii) the purchase, sale or other acquisition or disposition of Partnership Securities or options, rights, warrants or appreciation rights relating to Partnership Securities;
(xiv) the undertaking of any action in connection with the Partnership’s participation in the management of the Partnership Group through its directors, officers or employees or the Partnership’s direct or indirect ownership of the Group Members, including all things described in or contemplated by the Registration Statement and the agreements described in or filed as exhibits to the Registration Statement; and
(xv) cause to be registered for resale under the Securities Act and applicable state or non-U.S. securities laws, any securities of, or any securities convertible or exchangeable into securities of, the Partnership held by any Person, including the Managing Partner or any Affiliate of the Managing Partner.
(b) In exercising its authority under this Agreement, the Managing Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner (including the Managing Partner) of any action taken (or not taken) by it. The Managing Partner and the Partnership shall not have any liability to a Limited Partner for monetary damages, equitable relief or otherwise for losses sustained, liabilities incurred or benefits not derived by such Limited Partner in connection with such decisions so long as the Managing Partner has acted pursuant to its authority under this Agreement.
(c) Notwithstanding any other provision of this Agreement, the Delaware Limited Partnership Act or any applicable law, rule or regulation, each of the Partners and each other Person who may acquire an interest in Partnership Securities hereby (i) approves, ratifies and confirms the execution, delivery and performance by the parties thereto of the Purchase and Sale Agreement, the Investment Agreement, the Exchange Agreement, the Tax Receivable Agreement, the Group Partnership Agreements and the other agreements described in or filed as exhibits to the Registration Statement that are related to the transactions contemplated by the Registration Statement; (ii) agrees that the Managing Partner (on its own or through its delegation of such authority to any officer of the Partnership) is authorized to execute, deliver and perform the agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership, in each case in such form and with such terms as it in its sole discretion shall determine, without any further act, approval or vote of the Partners or the other Persons who may acquire an interest in Partnership Securities; and (iii) agrees that the execution, delivery or performance by the Managing Partner, any Group Member or any Affiliate of any of them, of this Agreement or any agreement authorized or permitted under this Agreement (including the exercise by the Managing Partner or any Affiliate of the Managing Partner of the rights accorded pursuant to Article XV), shall not constitute a breach by the Managing Partner of any duty that the Managing Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement (or any other agreements) or of any duty existing at law, in equity or otherwise.
Appears in 1 contract
Management. (a) The Managing General Partner of the Partnership generally shall conduct, direct and manage all activities of the Partnership generally, and the Managing General Partner of each Series shall conduct, direct and manage all activities of the Series for which it serves as Managing General Partner. A. Except as otherwise expressly provided in this Agreement, (i) all management powers over the business and affairs of the Partnership generally shall be are exclusively vested in the Managing General Partner of the Partnership generallyPartner, and no Limited Partner or other General Partner shall have any right to participate in or exercise control or management power over the business and affairs of (or authority to bind) the Partnership generally and (ii) all management powers over the business and affairs of each Series shall be exclusively vested in the Managing Partnership. The General Partner of such Series, and no may not be removed by the Limited Partner Partners with or other General Partner shall have any management power over the business and affairs of (or authority to bind) such Serieswithout cause. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law the Act or that which are granted to a Managing the General Partner under any other provision of this Agreement, each Managing the General Partner, subject to any approval required by Section 7.4, Section 7.5 or any the other provision of this Agreementprovisions hereof, shall have full power and authority to do all things and on such terms as it determines to be deemed necessary or appropriate desirable by it to conduct the business of the Partnership generally or the applicable Series, as the case may bePartnership, to exercise all powers set forth in Section 2.5 3.2 hereof and to effectuate the purposes set forth in Section 2.43.1 hereof, including the followingincluding, without limitation:
(i1) the making of any expenditures, the lending or of money, borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money to permit the Partnership to make distributions to its Partners in such amounts as will permit the General Partner (so long as the General Partner has determined to qualify as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Section 4981 of the Code), to make distributions to its stockholders sufficient to permit the General Partner to maintain REIT status), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtedness (including the securing of same by mortgage, deed of trust or other lien or encumbrance on the Partnership's assets) and the incurring of any other obligationsobligations it deems necessary for the conduct of the activities of the Partnership; provided, that all such borrowing, incurrence of -------- Debt and prepayments shall be subject to the limitations set forth in Sections 4.2 and 4.3;
(ii2) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership and each Series (other than in connection with the matters set forth in Section 9.3)Partnership;
(iii3) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the applicable Series Partnership or the merger or other combination of the Partnership with or into another Person;entity; provided that as long as the General Partner has -------- determined to continue to qualify as a REIT, the General Partner may not engage in any such acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange that would cause it to fail to qualify as a REIT
(iv4) the mortgage, pledge, encumbrance or hypothecation of any assets of the Partnership, and the use of the assets of the applicable Series Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms it sees fit, including, without limitation, the financing of the conduct of the operations of the General Partner, the Partnership the lending of funds to other Persons and the repayment of obligations of the Partnership and any other Person in which it has an equity investment;
(v5) the negotiation, execution and performance of any contracts, leases, deeds, conveyances or other instruments that the General Partner considers useful or necessary to the conduct of the Partnership's operations or the implementation of the General Partner's powers under this Agreement;
(6) the distribution of Partnership cash or other Partnership assets in accordance with this Agreement;
(7) the selection and dismissal of any employees of the Partnership (including, without limitation, employees having titles such as "president," "vice president," "secretary" and "treasurer"), and agents, outside attorneys, accountants, consultants and contractors of the Partnership and the determination of their compensation and other terms of employment or hiring;
(8) the selection and employment of third parties to perform services for and on behalf of the Partnership, including, but not limited to management, leasing and development services, and the General Partner may require that such third party service providers ▇▇▇▇ the Partnership generally directly for payment or the applicable Seriesreimbursement for such services;
(vi) the distribution of cash or property of the applicable Series;
(vii9) the maintenance of separate or joint such insurance policies for the benefit of the Partnership, any Series, any Partnership and the Partners as it deems necessary or any Indemniteesappropriate;
(viii10) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies ventures or other relationships subject that it deems desirable (including, without limitation, the acquisition of interests in, and the contributions of property to, any Person in which it has an equity investment from time to time); provided -------- that as long as the restrictions set forth General Partner has determined to continue to qualify as a REIT, the General Partner may not engage in Section 2.4any such formation, acquisition or contribution that would cause it to fail to qualify as a REIT;
(ix11) the control of any matters affecting the rights and obligations of the Partnership or the applicable SeriesPartnership, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigation, arbitration or mediation litigation and the incurring of legal expense and the settlement of claims and litigation; and
(x) , and the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(12) the undertaking of any action in connection with the Partnership's direct or indirect investment in any Person (including, without limitation, the contribution or loan of funds by the Partnership to such Persons);
(13) the determination of the fair market value of any Partnership property distributed in kind using such reasonable method of valuation as it may adopt, provided that such methods are otherwise consistent with industry standards and the requirements of this Agreement; and
(14) the enforcement of any rights against any Partner pursuant to representations, warranties, covenants and indemnities relating to such Partner's contribution of property or assets to the Partnership.
B. Each of the Limited Partners agrees that the General Partner is authorized to execute, deliver and perform the above-mentioned agreements and transactions on behalf of the Partnership without any further act, approval or vote of the Partners, notwithstanding any other provisions of this Agreement (except as provided in Section 7.3), the Act or any applicable law, rule or regulation. The execution, delivery or performance by the General Partner or the Partnership of any agreement authorized or permitted under this Agreement shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement or of any duty stated or implied by law or equity.
C. At all times from and after the date hereof, the General Partner may cause the Partnership to obtain and maintain (i) casualty, liability and other insurance on the properties of the Partnership and (ii) liability insurance for the Indemnities hereunder.
D. At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain working capital reserves in such amounts as the General Partner, in it sole and absolute discretion, deems appropriate and reasonable from time to time.
E. In exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner (including the General Partner) of any action taken by it. The General Partner and the Partnership shall not have liability to a Partner under any circumstances as a result of an income tax liability incurred by such Partner as a result of an action (or inaction) by the General Partner pursuant to its authority under this Agreement.
Appears in 1 contract
Sources: Agreement of Limited Partnership (Center Trust Inc)
Management. (a) The Managing General Partner of the Partnership generally shall conduct, direct and manage all activities of the Partnership generally, and the Managing General Partner of each Series shall conduct, direct and manage all activities of the Series for which it serves as Managing General PartnerCompany. Except as otherwise expressly provided in this Agreement, (i) all management powers over the business and affairs of the Partnership generally Company shall be exclusively vested in the Managing General Partner of the Partnership generallyPartner, and no Limited Partner or other General Partner shall have any management power over the business and affairs of (or authority to bind) the Partnership generally and (ii) all management powers over the business and affairs of each Series shall be exclusively vested in the Managing General Partner of such Series, and no Limited Partner or other General Partner shall have any management power over the business and affairs of (or authority to bind) such SeriesCompany. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or that are granted to a Managing the General Partner under any other provision of this Agreement, each Managing the General Partner, subject to any approval required by Section 7.4, Section 7.5 or any other provision of this Agreement, Partner shall have full power and authority to do all things and on such terms as it determines determines, in its sole discretion, to be necessary necessary, appropriate, proper, advisable or appropriate to conduct incidental to, or in furtherance of, conducting the business of the Partnership generally or the applicable SeriesCompany, as the case may be, to exercise exercising all powers set forth in Section 2.5 and to effectuate effectuating the purposes set forth in Section 2.4, including the following:
(i) the making of any expenditures, the lending or borrowing of money, the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtedness, including indebtedness that is convertible or exchangeable into Company Securities or options, rights, warrants or appreciation rights relating to Company Securities, and the incurring of any other obligations;
(ii) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership and each Series (other than in connection with the matters set forth in Section 9.3)Company;
(iii) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the applicable Series Company or the merger or other combination of the Partnership Company with or into another PersonPerson (the matters described in this clause (iii) being subject, however, to any prior approval that may be required by Article XIV and Article XVI);
(iv) the use of the assets of the applicable Series Company (including cash on hand) for any purpose consistent with the terms of this Agreement, including the financing of the conduct of the operations of the Company Group; the lending of funds to other Persons; the repayment or guarantee of obligations of any Group Member or other Person and the making of capital contributions to any Group Member or other Person;
(v) the negotiation, execution and performance of any contracts, conveyances or other instruments on behalf (including instruments that limit the liability of the Partnership generally Company under contractual arrangements to all or particular assets of the applicable SeriesCompany, with the other party to the contract to have no recourse against the General Partner or its assets other than their interest in the Company, even if same results in the terms of the transaction being less favorable to the Company than would otherwise be the case);
(vi) subject to Article XVI, the distribution of cash or property of the applicable SeriesCompany cash;
(vii) the selection and dismissal of employees (including employees having such titles as the General Partner may determine in its sole discretion) and agents, representatives, outside attorneys, accountants, consultants and contractors and the determination of their compensation and other terms of employment or hiring;
(viii) the maintenance of separate or joint insurance policies for the benefit of the PartnershipCompany Group, any Series, any the Partners or any and Indemnitees;
(viiiix) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies companies, corporations or other entities or relationships (including the acquisition of interests in, and the contributions of property to, the Company’s Subsidiaries from time to time), subject to the restrictions set forth in Section 2.4;
(ixx) the control of any matters affecting the rights and obligations of the Partnership or the applicable SeriesCompany, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigation, arbitration or mediation and the incurring of legal expense and the settlement of claims and litigation; and;
(xxi) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.7);
(xiii) subject to Article XVI, the purchase, sale or other acquisition or disposition of Company Securities or options, rights, warrants or appreciation rights relating to Company Securities;
(xiv) the undertaking of any action in connection with the Company’s participation in the management of the Company Group through its directors, officers or employees or the Company’s direct or indirect ownership of the Group Members, including all things described in or contemplated by the Registration Statement and the agreements described in or filed as exhibits to the Registration Statement; and
(xv) the registration for resale under the Securities Act and applicable state or non-U.S. securities laws of any securities of, or any securities convertible or exchangeable into securities of, the Company held by any Person, including the General Partner or any Affiliate of the General Partner.
(b) In exercising its authority under this Agreement, the General Partner may, but shall be under no obligation or duty to, take into account the tax consequences to any Partner (including the General Partner) of any action taken (or not taken) by it. The General Partner and the Company shall not have any liability to a Limited Partner for monetary damages, equitable relief or otherwise for losses sustained, liabilities incurred or benefits not derived by such Limited Partner in connection with such decisions.
(c) Notwithstanding any other provision of this Agreement, the Delaware Limited Partnership Act or any applicable law, rule or regulation, each of the Partners and each other Person who may acquire an interest in Company Securities hereby (i) approves, ratifies and confirms the execution, delivery and performance by the parties thereto of the Exchange Agreement, the Tax Receivable Agreement, the Investor Rights Agreement, the Ares Operating Group Governing Agreements and the other agreements described in or filed as exhibits to the Registration Statement that are related to the transactions contemplated by the Registration Statement; (ii) agrees that the General Partner (on its own or through its delegation of such authority to any officer of the Company) is authorized to execute, deliver and perform the agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Company, in each case in such form and with such terms as it in its sole discretion shall determine, without any further act, approval or vote of the Partners or the other Persons who may acquire an interest in Company Securities; and (iii) agrees that the execution, delivery or performance by the General Partner, any Group Member or any Affiliate of any of them, of this Agreement or any agreement authorized or permitted under this Agreement (including the exercise by the General Partner or any Affiliate of the General Partner of the rights accorded pursuant to Article XV), shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Company or the Limited Partners or any other Persons under this Agreement (or any other agreements) or of any duty (fiduciary or otherwise) existing at law, in equity or otherwise.
Appears in 1 contract
Management. (a) The Managing General Partner of the Partnership generally shall conduct, direct and manage all activities of the Partnership generally, and the Managing General Partner of each Series shall conduct, direct and manage all activities of the Series for which it serves as Managing General Partner. Except as otherwise expressly provided in this Agreement, (i) all A. All management powers over the business and affairs of the Partnership generally are and shall be exclusively vested in the Managing General Partner of the Partnership generallyPartner, and no Limited Partner or other General Partner shall have any right to participate in or exercise control or management power over the business and affairs of (or authority to bind) the Partnership generally and (ii) all management powers over the business and affairs of each Series shall be exclusively vested in the Managing Partnership. The General Partner of such Series, and no may not be removed by the Limited Partner Partners with or other General Partner shall have any management power over the business and affairs of (or authority to bind) such Serieswithout cause. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or that which are granted to a Managing the General Partner under any other provision of this Agreement, each Managing the General Partner, subject to any approval required by Section 7.4, Section 7.5 or any other provision of shall (except as otherwise set forth in this Agreement, shall ) have full power and authority to do all things and on such terms as it determines to be deemed necessary or appropriate desirable by it to conduct the business of the Partnership generally or the applicable Series, as the case may bePartnership, to exercise all powers set forth in Section 2.5 3.2 hereof and to effectuate the purposes set forth in Section 2.43.1 hereof, including the followingincluding, without limitation:
(i1) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, borrowing of money from the General Partner or its affiliates as provided in Section 4.4 hereof, and making prepayments on loans and borrowing money to permit WEA (so long as WEA qualifies as a REIT) to avoid the payment of any federal income or excise tax and to permit WEA to maintain REIT status), the assumption or guarantee ofof (including, without limitation, the guarantee of indebtedness or obligations of the General Partner or any of its Affiliates), or other contracting for, indebtedness and other liabilities, the issuance of evidences evidence of indebtedness (including the securing of the same by deed, mortgage, deed of trust, negative pledge or other lien or encumbrance on the Partnership's assets) and the incurring of any other obligationsobligations it in good ▇▇▇▇▇ ▇▇▇▇▇ necessary for the conduct of the activities of the Partnership, the Mall Partnership, WEA or the Operating Partnership;
(ii2) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership and each Series (other than in connection with the matters set forth in Section 9.3)Partnership;
(iii3) subject to Section 8.7 hereof, the acquisition, sale, disposition, lease, mortgage, pledge, transfer, encumbrance, hypothecation or exchange of any or all of the assets of the applicable Series Partnership for the benefit of the Partnership, the Mall Partnership, WEA or the Operating Partnership, including, without limitation, the exercise or grant of any conversion option, privilege, negative pledge or subscription right or other right available in connection with any assets at any time held by the Partnership, the financing of the conduct of the operations of the Partnership, the Mall Partnership, WEA or the Operating Partnership, the secured or unsecured lending of funds to other Persons (including, without limitation, the Subsidiaries and Affiliates of the Partnership and/or the General Partner, provided that any loans to Affiliates of the General Partner shall be at a rate of interest not less than the prime rate in effect at the time such loan is made, as quoted in the Wall Street Journal) or the merger or other combination of the Partnership with or into another Personentity;
(iv4) the use of the assets of the applicable Series Partnership (including including, without limitation, cash on handhand from whatever source) for any purpose consistent not inconsistent with the terms of this AgreementAgreement and on any terms it sees fit, including, without limitation, the repayment of obligations of the Partnership and its Subsidiaries and any other Person in which it has an equity investment, and the making of capital contributions to its Subsidiaries, the holding of any real, personal and mixed property of the Partnership in the name of the Partnership or in the name of a nominee or trustee and the creation, by grant or otherwise, of easements or servitudes;
(v5) the management, operation, leasing, collection of rents, marketing, landscaping, repair, alteration, renovation, rehabilitation, demolition or improvement of any real property or improvements owned by the Partnership or any Subsidiary of the Partnership, including, without limitation, entering into management agreements and performing any and all actions as contemplated by Section 7.3 hereof, and the performance of any and all other acts necessary or appropriate to the operation of such properties, including, without limitation, applications for rezoning or objections to rezoning of such properties;
(6) the negotiation, execution execution, and performance of any contracts, conveyances or other instruments that the General Partner considers useful or necessary to the conduct of the Partnership's operations or the implementation of the General Partner's powers under this Agreement, including, without limitation, the execution and delivery of leases on behalf of or in the Partnership generally or name of the applicable SeriesPartnership, contracting with contractors, developers, consultants, accountants, legal counsel, other professional advisors and other agents and the payment of their expenses and compensation out of the Partnership's assets;
(vi7) the negotiation, execution and performance of any contracts with Affiliates of the General Partner in accordance with the provisions of Section 7.5 hereof;
(8) the opening and closing of bank accounts, the investment of Partnership funds in securities, certificates of deposit and other instruments, and the distribution of Partnership cash or property of the applicable Seriesother Partnership assets in accordance with this Agreement;
(vii9) the holding, managing, investing and reinvesting cash and other assets of the Partnership;
(10) the collection and receipt of revenues and income of the Partnership;
(11) the establishment of one or more divisions of the Partnership, the selection and dismissal of agents, outside attorneys, accountants, consultants and contractors of the Partnership, and the determination of their compensation and other terms of hiring (whether or not any of the foregoing are also employed by, consultants to, independent contractors for, or otherwise do business with the General Partner or its Affiliates in related or unrelated matters);
(12) the maintenance of separate or joint such insurance policies for the benefit of the PartnershipPartnership and the Partners as it deems necessary or appropriate (whether or not such is done as part of a group, any Seriescombined or other policy or policies under which the Partnership and the General Partner (or its Affiliates) are also insured, any Partners or any Indemniteesso long as the General Partner fairly allocates the expense thereof among the covered parties);
(viii13) the formation of, or acquisition of an interest in, and the contribution of some or all of property and the making of loans (or any part thereof or interest therein) to, any further limited or general partnerships, joint ventures, corporations, limited liability companies ventures or other relationships subject that it deems desirable (including, without limitation, the acquisition of interests in, and the contributions of property to, its Subsidiaries and any other Person in which it has an equity investment from time to the restrictions set forth in Section 2.4time);
(ix14) the control of any and all matters affecting the rights and obligations of the Partnership or the applicable SeriesPartnership, including the bringing and defending settlement, compromise, submission to arbitration or any other form of actions at law dispute resolution, or in equity and otherwise engaging in abandonment of, any claim, cause of action, liability, debt or damages, due or owing to or from the conduct Partnership, the commencement or defense of litigationsuits, legal proceedings, administrative proceedings, arbitration or mediation other forms of dispute resolution, and the representation of the Partnership in all suits or legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, the incurring of legal expense expense, and the settlement of claims and litigation; and
(x) the indemnification of any Person against liabilities and contingencies to the extent permitted by law and consistent with the terms of this Agreement, including in each and all of the foregoing instances any such matter or thing in which the General Partner or its Affiliates have a direct interest;
(15) the undertaking of any action in connection with the Partnership's direct or indirect investment in its Subsidiaries or any other Person (including without limitation, the contribution or loan of funds by the Partnership to such Persons);
(16) the determination of the fair market value of any Partnership property distributed in kind using such reasonable method of valuation as the General Partner may adopt;
(17) the exercise, directly or indirectly, through any attorney-in-fact acting under a general or limited power of attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(18) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(19) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest pursuant to contractual or other arrangements with such Person;
(20) the making, execution and delivery of any and all deeds, leases, notes, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate, in the judgment of the General Partner, for the accomplishment of any of the powers of the General Partner enumerated in this Agreement;
(21) the issuance of additional Partnership Units or Partnership Interests, as appropriate, in connection with Capital Contributions by Additional Limited Partners and additional Capital Contributions by Partners pursuant to Article 4 hereof;
(22) to perform or cause to be performed all such other acts required by this Agreement or not inconsistent herewith; and
(23) to execute, acknowledge and deliver any and all instruments necessary or desirable to effectuate any of the foregoing.
B. Each of the Limited Partners agrees that the General Partner is authorized to execute, deliver and perform the above-mentioned agreements and transactions on behalf of the Partnership without any further act, approval or vote of the Partners, notwithstanding the Act or any applicable law, rule or regulation, to the fullest extent permitted under the Act or other applicable law, rule or regulation. The execution, delivery or performance by the General Partner or the Partnership of any agreement authorized or permitted under this Agreement shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement or of any duty stated or implied by law or equity.
C. At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain at any and all times working capital accounts and other cash or similar balances in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
D. In exercising its authority under this Agreement, the General Partner may, but, except as otherwise expressly provided in this Agreement or in any other Agreement to which the Partnership is a party or by which it is bound, shall be under no obligation to, take into account the tax consequences to any Partner of any action taken by it. The General Partner and the Partnership shall not have liability to a Limited Partner under any circumstances as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner taken pursuant to its authority under this Agreement and in accordance with the terms hereof.
Appears in 1 contract
Sources: Limited Partnership Agreement (Westfield America Inc)
Management. (a) The Managing General Partner of the Partnership generally shall conduct, direct and manage all activities of the Partnership generally, and the Managing General Partner of each Series shall conduct, direct and manage all activities of the Series for which it serves as Managing General Partner. A. Except as otherwise expressly provided in this Agreement, (i) all management powers over the business and affairs of the Partnership generally are and shall be exclusively vested in the Managing General Partner of the Partnership generallyPartner, and no Limited Partner or other General Partner shall have any right to participate in or exercise control or management power over the business and affairs of (or authority to bind) the Partnership generally and (ii) all management powers over the business and affairs of each Series shall be exclusively vested in the Managing Partnership. The General Partner of such Series, and no may not be removed by the Limited Partner Partners with or other General Partner shall have any management power over the business and affairs of (or authority to bind) such Serieswithout cause. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or that which are granted to a Managing the General Partner under any other provision of this Agreement, each Managing General Partner, but subject to any approval required by the limitations set forth in Section 7.47.2 hereof, Section 7.5 or any other provision of this Agreement, the General Partner shall have full power and authority to do all things and on such terms as it determines to be deemed necessary or appropriate desirable by it to conduct the business of the Partnership generally or the applicable Series, as the case may bePartnership, to exercise all powers set forth in Section 2.5 3.2 hereof and to effectuate the purposes set forth in Section 2.43.1 hereof, including (to the followingextent not prohibited by Section 7.2 hereof), without limitation:
(i1) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money to permit the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, Partnership to make distributions to its Partners in such amounts as will permit the issuance of evidences of indebtedness and General Partner (so long as the incurring General Partner qualifies as a REIT) to avoid the payment of any other obligations;federal income tax (including, for this purpose, any excise tax pursuant to Section 4981 of the Code) and to make distributions to its
(ii2) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership and each Series (other than in connection with the matters set forth in Section 9.3)Partnership;
(iii3) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the applicable Series Partnership (including the exercise or grant of any conversion, option, privilege, or subscription right or other right available in connection with any assets at any time held by the Partnership) or the merger or other combination of the Partnership with or into another Personentity;
(iv4) the use of the assets of the applicable Series Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms it sees fit, including, without limitation, the financing of the conduct of the operations of the General Partner, the Partnership or any of the Partnership's Subsidiaries, the lending of funds to other Persons (including, without limitation, the Subsidiaries of the Partnership and/or the General Partner) and the repayment of obligations of the Partnership and its Subsidiaries and any other Person in which it has an equity investment, and the making of capital contributions to its Subsidiaries, the holding of any real, personal and mixed property of the Partnership in the name of the Partnership or in the name of a nominee or trustee and the creation, by grant or otherwise, of easements or servitudes;
(v5) the management, operation, leasing, collection of rents, marketing, landscaping, repair, alteration, renovation, rehabilitation, demolition or improvement of the Original Property or any other real property or improvements owned by the Partnership or any Subsidiary of the Partnership and the performance of any and other acts necessary or appropriate to the operation of such properties, including, without limitation, applications for rezoning or objections to rezoning of such properties;
(6) the negotiation, execution execution, and performance of any contracts, conveyances or other instruments that the General Partner considers useful or necessary to the conduct of the Partnership's operations or the implementation of the General Partner's powers under this Agreement, including, without limitation, the execution and delivery of leases on behalf of or in the Partnership generally or name of the applicable SeriesPartnership, contracting with contractors, developers, consultants, accountants, legal counsel, other 31 professional advisors and other agents and the payment of their expenses and compensation out of the Partnership's assets;
(vi7) the opening and closing of bank accounts, the investment of Partnership funds in securities, certificates of deposit and other instruments, and the distribution of Partnership cash or property of the applicable Seriesother Partnership assets in accordance with this Agreement;
(vii8) the holding, managing, investing and reinvesting cash and other assets of the Partnership;
(9) the collection and receipt of revenues and income of the Partnership;
(10) the establishment of one or more divisions of the Partnership, the selection and dismissal of employees of the Partnership (including, without limitation, employees having titles such as "president," "vice president," "secretary" and "treasurer" of the Partnership), and agents, outside attorneys, accountants, consultants and contractors of the Partnership, and the determination of their compensation and other terms of employment or hiring (whether or not any of the foregoing are also employed by, consultants to, independent contractors for, or otherwise do business with the General Partner or its Affiliates in related or unrelated matters);
(11) the maintenance of separate or joint such insurance policies for the benefit of the PartnershipPartnership and the Partners as it deems necessary or appropriate (whether or not such is done as part of a group, any Seriescombined or other policy or policies under which the Partnership and the General Partner (or its Affiliates) are also insured, any Partners or any Indemniteesso long as the General Partner fairly allocates the expense thereof among the covered parties);
(viii12) the formation of, or acquisition of an interest in, and the contribution of some or all of property and the making of loans (or any part thereof or interest therein) to, any further limited or general partnerships, joint ventures, corporations, limited liability companies ventures or other relationships subject that it deems desirable (including, without limitation, the acquisition of interests in, and the contributions of property to, its Subsidiaries and any other Person in which it has an equity investment from time to the restrictions set forth in Section 2.4time);
(ix13) the control of any and all matters affecting the rights and obligations of the Partnership or the applicable SeriesPartnership, including the bringing and defending settlement, compromise, submission to arbitration or any other form of actions at law dispute resolution, or in equity and otherwise engaging in abandonment of, any claim, cause of action, liability, debt or damages, due or owing to or from the conduct Partnership, the commencement or defense of litigationsuits, legal proceedings, administrative proceedings, arbitration or mediation other forms of dispute resolution, and the representation of the Partnership in all suits or legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, the incurring of legal expense expense, and the settlement of claims and litigation; and
(x) the indemnification of any Person against liabilities and contingencies to the extent permitted by law.any
Appears in 1 contract
Sources: Limited Partnership Agreement (Pacific Gulf Properties Inc)
Management. (a) The Managing Except as delegated to the Manager Group as set forth in the Management Services Agreement or as otherwise provided therein or in the XPLR Partners Partnership Agreement, the General Partner of the Partnership generally shall conduct, direct and manage all activities of the Partnership generally, and the Managing General Partner of each Series shall conduct, direct and manage all activities of the Series for which it serves as Managing General PartnerPartnership. Except as otherwise expressly provided in this Agreement, (i) but without limitation on the ability of the General Partner to delegate its rights and power to other Persons, all management powers over the business and affairs of the Partnership generally shall be exclusively vested in the Managing General Partner of the Partnership generallyPartner, and no Limited Partner or other General Partner in its capacity as such shall have any management power over the business and affairs of (or authority to bind) the Partnership generally and (ii) all management powers over the business and affairs of each Series shall be exclusively vested in the Managing General Partner of such Series, and no Limited Partner or other General Partner shall have any management power over the business and affairs of (or authority to bind) such SeriesPartnership. In addition to the powers now or hereafter granted to a general partner of a limited partnership under applicable law or that are granted to a Managing the General Partner under any other provision of this Agreement, each Managing the General Partner, subject to any approval required by Section 7.4, Section 7.5 or any other provision of this Agreement7.3, shall have full power and authority to do all things and on such terms as it determines to be necessary or appropriate to conduct the business of the Partnership generally or the applicable Series, as the case may bePartnership, to exercise all powers set forth in Section 2.5 and to effectuate the purposes set forth in Section 2.4, including the following:
(i) the making of any expenditures, the lending or borrowing of money, the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtedness, including indebtedness that is convertible into or exchangeable for Partnership Interests, and the incurring of any other obligations;
(ii) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership and each Series (other than in connection with the matters set forth in Section 9.3)Partnership;
(iii) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the applicable Series Partnership or the merger or other combination of the Partnership with or into another PersonPerson (the matters described in this clause (iii) being subject, however, to any prior approval that may be required by Section 7.3 and Article XIV);
(iv) the use of the assets of the applicable Series Partnership (including cash on hand) for any purpose consistent with the terms of this Agreement, including (A) the financing of the conduct of the operations of the Partnership Group; (B) subject to Section 7.6(a), the lending of funds to other Persons (including other Group Members); (C) the repayment or guarantee of obligations of any Group Member; and (D) the making of capital contributions to any Group Member;
(v) the negotiation, execution and performance of any contracts, conveyances or other instruments on behalf (including instruments that limit the liability of the Partnership generally under contractual arrangements to all or particular assets of the applicable SeriesPartnership, with the other party to the contract having no recourse against the General Partner or its assets other than its interest in the Partnership, even if the same results in the terms of the transaction are less favorable to the Partnership than would otherwise be the case);
(vi) the distribution of cash or property of held by the applicable SeriesPartnership;
(vii) the selection and dismissal of employees (including employees having titles such as “president,” “vice president,” “secretary” and “treasurer”) and agents, internal and outside attorneys, accountants, consultants and contractors and the determination of their compensation and other terms of employment or hiring;
(viii) the maintenance of separate or joint insurance policies for the benefit of the PartnershipPartnership Group, any Series, any the Partners or any and Indemnitees;
(viiiix) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies or other relationships Persons (including the acquisition of interests in, and the contributions of property to, any Group Member from time to time) subject to the restrictions set forth in Section 2.4;
(ixx) the control of any matters affecting the rights and obligations of the Partnership or the applicable SeriesPartnership, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigation, arbitration or mediation and the incurring of legal expense and the settlement of claims and litigation; and;
(xxi) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the purchase, sale or other acquisition or disposition of Partnership Interests, or the issuance of Derivative Partnership Interests;
(xiii) the undertaking of any action in connection with the Partnership’s participation in the management of any Group Member; and
(xiv) the entering into of agreements with any of its Affiliates to render services to a Group Member or to itself in the discharge of its duties as General Partner of the Partnership.
(b) Notwithstanding any other provision of this Agreement, any Group Member Agreement, the Delaware Act or any applicable law, rule or regulation, each of the Partners and each other Person who may acquire an interest in Partnership Interests hereby agrees that the execution, delivery or performance by the General Partner, any Group Member or any Affiliate of any of them of this Agreement or any agreement authorized or permitted under this Agreement (including the exercise by the General Partner or any Affiliate of the General Partner of the rights accorded pursuant to Article XVII) shall not constitute a breach by the General Partner of any duty or any other obligation of any type whatsoever that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement (or any other agreements) or of any duty existing at law, in equity or otherwise.
(c) Notwithstanding any other provision of this Agreement, the consent of the XPLR Partners General Partner, which may be granted or withheld in its sole discretion, shall be required for the following actions:
(i) Sale of all or substantially all assets of the Partnership Group as set forth in Section 7.3.
(ii) Merger, consolidation, or conversion of the Partnership, as set forth in Section 14.2, or the merger, consolidation, or conversion of any other Group Member.
(iii) Dissolution of the Partnership, as set forth in Section 12.1(b), or the dissolution of any other Group Member.
(iv) Transfer by the General Partner of all or any part of its General Partner Interest to another Person as set forth in Section 4.6.
(v) Amendment of this Agreement.
Appears in 1 contract
Sources: Limited Partnership Agreement (XPLR Infrastructure, LP)
Management. (a) The Managing General Partner of the Partnership generally shall conduct, direct and manage all activities of the Partnership generally, and the Managing General Partner of each Series shall conduct, direct and manage all activities of the Series for which it serves as Managing General Partner. Except as otherwise expressly provided in this Agreement, (i) all management powers over the business and affairs of the Partnership generally are and shall be exclusively vested in the Managing General Partner of the Partnership generallyPartner, and no Limited Partner or other General Partner shall have any right to participate in or exercise control or management power over the business and affairs of (or authority to bind) the Partnership generally and (ii) all management powers over the business and affairs of each Series shall be exclusively vested in the Managing Partnership. The General Partner may not be removed by the Limited Partners, except with the consent of such Series, and no Limited Partner or other the General Partner shall have any management power over the business and affairs of (or authority to bind) such SeriesPartner. In addition to the powers now or hereafter granted to a general partner of a limited partnership under applicable law or that are granted to a Managing the General Partner under any other provision of this Agreement, each Managing the General Partner, subject to any approval required by the other provisions hereof including Section 7.4, Section 7.5 or any other provision of this Agreement7.03, shall have full power and authority to do all things and on such terms as it determines to be deemed necessary or appropriate desirable by it to conduct the business of the Partnership generally or the applicable Series, as the case may bePartnership, to exercise all powers set forth in Section 2.5 3.02 hereof and to effectuate the purposes set forth in Section 2.43.01 hereof, including the followingincluding, without limitation:
(i) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money or selling assets to permit the Partnership to make distributions to its Partners in such amounts as will permit the General Partner (so long as the General Partner desires to maintain or restore its qualification as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Code Section 4981) and to make distributions to its stockholders sufficient to permit the General Partner to maintain or restore REIT qualification or otherwise to satisfy the REIT Requirements), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtedness (including the securing of same by deed to secure debt, mortgage, deed of trust or other lien or encumbrance on the Partnership’s assets) and the incurring of any other obligationsobligations that it deems necessary for the conduct of the activities of the Partnership;
(ii) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership, the registration of any class of securities of the Partnership under the Exchange Act and each Series (other than in connection with the matters set forth in Section 9.3)listing of any debt securities of the Partnership on any exchange;
(iii) subject to Section 11.02 hereof, the acquisition, dispositionsale, mortgagelease, pledgetransfer, encumbranceexchange or other disposition of any, hypothecation all or exchange of any or substantially all of the assets of the applicable Series Partnership (including, but not limited to, the exercise or grant of any conversion, option, privilege or subscription right or any other right available in connection with any assets at any time held by the Partnership) or the merger merger, consolidation, reorganization or other combination of the Partnership with or into another Personentity;
(iv) the mortgage, pledge, encumbrance or hypothecation of any assets of the Partnership, the use of the assets of the applicable Series Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms that it sees fit, including, without limitation, the financing of the operations and activities of the General Partner, the Partnership or any of the Partnership’s Subsidiaries, the lending of funds to other Persons (including, without limitation, the Partnership’s Subsidiaries) and the repayment of obligations of the Partnership, its Subsidiaries and any other Person in which the Partnership has an equity investment, and the making of capital contributions to and equity investments in the Partnership’s Subsidiaries;
(v) the use of the assets of the Partnership (including, without limitation, cash on hand) for any purpose consistent with the terms of this Agreement and on any terms it sees fit, including, without limitation, the financing of the conduct of the operations of the General Partner, the Partnership or any of the Partnership’s Subsidiaries, the lending of funds to other Persons (including, without limitation, the General Partner and its Subsidiaries and the Partnership’s Subsidiaries) and the repayment of obligations of the Partnership and its Subsidiaries and any other Person in which the Partnership has an equity investment and the making of capital contributions to its Subsidiaries;
(vi) the management, operation, leasing, landscaping, repair, alteration, demolition, replacement or improvement of any Property, including, without limitation, any Contributed Property, or other asset of the Partnership or any Subsidiary, whether pursuant to a Services Agreement or otherwise;
(vii) the negotiation, execution and performance of any contracts, leases, conveyances or other instruments on behalf that the General Partner considers useful or necessary to the conduct of the Partnership generally Partnership’s operations or the applicable Seriesimplementation of the General Partner’s powers under this Agreement, including contracting with contractors, developers, consultants, accountants, legal counsel, other professional advisors and other agents and the payment of their expenses and compensation out of the Partnership’s assets;
(viviii) the distribution of Partnership cash or property other Partnership assets in accordance with this Agreement, the holding, management, investment and reinvestment of cash and other assets of the applicable SeriesPartnership and the collection and receipt of revenues, rents and income of the Partnership;
(viiix) the maintenance of separate or joint such insurance policies for the benefit of the PartnershipPartnership and the Partners as the General Partner deems necessary or appropriate, any Seriesincluding, any Partners or any Indemniteeswithout limitation, (i) casualty, liability and other insurance on the Properties and (ii) liability insurance for the Indemnitees hereunder;
(viiix) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies companies, joint ventures or other relationships subject that the General Partner deems desirable (including, without limitation, the acquisition of interests in, and the contributions of property to, any Subsidiary and any other Person in which it has an equity investment from time to time); provided, however, that as long as the restrictions set forth General Partner has determined to continue to qualify as a REIT, the General Partner may not engage in any such formation, acquisition or contribution that would cause it to fail to qualify as a REIT within the meaning of Code Section 2.4856(a) (so long as the General Partner desires to maintain its qualification as a REIT);
(ixxi) the filing of applications, communicating and otherwise dealing with any and all governmental agencies having jurisdiction over, or in any way affecting, the Partnership’s assets or any other aspect of the Partnership business;
(xii) the control of any matters affecting the rights and obligations of the Partnership or the applicable SeriesPartnership, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigationsettlement, compromise, submission to arbitration or mediation any other form of dispute resolution, or abandonment, of any claim, cause of action, liability, debt or damages, due or owing to or from the Partnership, the commencement or defense of suits, legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, and the representation of the Partnership in all suits or legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, the incurring of legal expense expense, and the settlement of claims and litigation; and
(x) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xiii) the undertaking of any action in connection with the Partnership’s direct or indirect investment in any Subsidiary or any other Person (including, without limitation, the contribution or loan of funds by the Partnership to such Persons);
(xiv) except as otherwise specifically set forth in this Agreement, the determination of the fair market value of any Partnership property distributed in-kind using such reasonable method of valuation as it may adopt; provided, that such methods are otherwise consistent with the requirements of this Agreement;
(xv) the enforcement of any rights against any Partner pursuant to representations, warranties, covenants and indemnities relating to such Partner’s contribution of property or assets to the Partnership;
(xvi) the exercise, directly or indirectly, through any attorney-in-fact acting under a general or limited power-of-attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(xvii) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(xviii) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest, pursuant to contractual or other arrangements with such Person;
(xix) the making, execution and delivery of any and all deeds, leases, notes, deeds to secure Debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate in the judgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement;
(xx) the issuance of additional Partnership Units, as appropriate and in the General Partner’s sole and absolute discretion, in connection with Capital Contributions by Additional Limited Partners and additional Capital Contributions by Partners pursuant to Article IV hereof;
(xxi) the selection and dismissal of Company Employees (including, without limitation, employees having titles or offices such as president, vice president, secretary and treasurer), and agents, outside attorneys, accountants, consultants and contractors of the Partnership or the General Partner, the determination of their compensation and other terms of employment or hiring and the delegation to any such Company Employee the authority to conduct the business of the Partnership in accordance with the terms of this Agreement;
(xxii) the distribution of cash to acquire Partnership Units held by a Limited Partner in connection with a Limited Partner’s exercise of its Redemption right under Section 8.06 hereof;
(xxiii) the amendment and restatement of Exhibit A hereto to reflect accurately at all times the Capital Contributions and Percentage Interests of the Partners as the same are adjusted from time to time to the extent necessary to reflect redemptions, Capital Contributions, the issuance of Partnership Units, the admission of any Additional Limited Partner or any Substituted Limited Partner or otherwise, which amendment and restatement, notwithstanding anything in this Agreement to the contrary, shall not be deemed an amendment to this Agreement, as long as the matter or event being reflected in Exhibit A hereto otherwise is authorized by this Agreement;
(xxiv) the determination regarding whether a payment to a Partner who exercises its Redemption Right under Section 8.06 that is assumed by the General Partner will be paid in the form of the Cash Amount or the REIT Shares Amount, except as such determination may be limited by Section 8.06;
(xxv) the collection and receipt of revenues and income of the Partnership;
(xxvi) the registration of any class of securities of the Partnership under the Securities Act or the Exchange Act, and the listing of any debt securities of the Partnership on any exchange;
(xxvii) an election to dissolve the Partnership pursuant to Section 13.01(b) hereof; and
(xxviii) the taking of any action necessary or appropriate to enable the General Partner to qualify as a REIT (so long as the General Partner desires to maintain its qualification as a REIT).
(b) Each of the Limited Partners agrees that, except as provided in Section 7.03 hereof, the General Partner is authorized to execute, deliver and perform the above-mentioned agreements and transactions on behalf of the Partnership without any further act, approval or vote of the Partners, notwithstanding any other provision of this Agreement, the Act or any applicable law, rule or regulation.
(c) At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain working capital and other reserves in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
(d) In exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner (including the General Partner) of any action taken (or not taken) by it. Except as may be provided in a separate written agreement between the Partnership and the Limited Partners, the General Partner and the Partnership shall not have liability to a Limited Partner under any circumstances as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner pursuant to its authority under this Agreement provided, that the General Partner has acted in good faith and pursuant to its authority under this Agreement.
Appears in 1 contract
Sources: Limited Partnership Agreement (ZAIS Financial Corp.)
Management. (a) The Managing General Partner of the Partnership generally shall conduct, direct and manage all activities of the Partnership generally, and the Managing General Partner of each Series shall conduct, direct and manage all activities of the Series for which it serves as Managing General Partner. Except as otherwise expressly provided in this Agreement, (i) all management powers over the business and affairs of the Partnership generally are and shall be exclusively vested in the Managing General Partner of the Partnership generallyPartner, and no Limited Partner or other General Partner shall have any right to participate in or exercise control or management power over the business and affairs of (or authority to bind) the Partnership generally and (ii) all management powers over the business and affairs of each Series shall be exclusively vested in the Managing Partnership. The General Partner may not be removed by the Limited Partners with or without cause, except with the consent of such Series, and no Limited Partner or other the General Partner shall have any management power over the business and affairs of (or authority to bind) such SeriesPartner. In addition to the powers now or hereafter granted to a general partner of a limited partnership under applicable law or that are granted to a Managing the General Partner under any other provision of this Agreement, each Managing the General Partner, subject to any approval required by the other provisions hereof including Section 7.4, Section 7.5 or any other provision of this Agreement7.03 hereof, shall have full power and authority to do all things and on such terms as it determines to be deemed necessary or appropriate desirable by it to conduct the business of the Partnership generally or the applicable Series, as the case may bePartnership, to exercise all powers set forth in Section 2.5 3.02 hereof and to effectuate the purposes set forth in Section 2.43.01 hereof, including the followingincluding, without limitation:
(i) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money or selling assets to permit the Partnership to make distributions to its Partners in such amounts as will permit the General Partner (so long as the General Partner desires to maintain or restore its qualification as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Code Section 4981) and to make distributions to its stockholders sufficient to permit the General Partner to maintain or restore REIT qualification or otherwise to satisfy the REIT Requirements), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtedness (including the securing of same by deed to secure debt, mortgage, deed of trust or other lien or encumbrance on the Partnership’s assets) and the incurring of any other obligationsobligations that it deems necessary for the conduct of the activities of the Partnership;
(ii) the making of tax, regulatory and other filingsfilings or elections, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership, the registration of any class of securities of the Partnership under the Securities Act or the Exchange Act and each Series (other than in connection with the matters set forth in Section 9.3)listing of any debt securities of the Partnership on any exchange;
(iii) subject to Section 11.02 hereof, the acquisition, dispositionsale, mortgagelease, pledgetransfer, encumbranceexchange or other disposition of any, hypothecation all or exchange of any or substantially all of the assets of the applicable Series Partnership (including, but not limited to, the exercise or grant of any conversion, option, privilege or subscription right or any other right available in connection with any assets at any time held by the Partnership) or the merger merger, consolidation, reorganization or other combination of the Partnership with or into another Personentity;
(iv) the mortgage, pledge, encumbrance or hypothecation of any assets of the Partnership, the use of the assets of the applicable Series Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms that it sees fit, including, without limitation, the financing of the operations and activities of the General Partner, the Partnership or any of the Partnership’s Subsidiaries, the lending of funds to other Persons (including, without limitation, the Partnership’s Subsidiaries) and the repayment of obligations of the Partnership, its Subsidiaries and any other Person in which the Partnership has an equity investment, and the making of capital contributions to and equity investments in the Partnership’s Subsidiaries;
(v) the use of the assets of the Partnership (including, without limitation, cash on hand) for any purpose consistent with the terms of this Agreement and on any terms it sees fit, including, without limitation, the financing of the conduct of the operations of the General Partner, the Partnership or any of the Partnership’s Subsidiaries, the lending of funds to other Persons (including, without limitation, the General Partner and its Subsidiaries and the Partnership’s Subsidiaries) and the repayment of obligations of the Partnership and its Subsidiaries and any other Person in which the Partnership has an equity investment and the making of capital contributions to its Subsidiaries;
(vi) the management, operation, leasing, landscaping, repair, alteration, demolition, replacement or improvement of any Property, including, without limitation, any Contributed Property, or other asset of the Partnership or any Subsidiary, whether pursuant to a Services Agreement or otherwise;
(vii) the negotiation, execution execution, delivery and performance of any contracts, leases, conveyances or other instruments on behalf that the General Partner considers useful or necessary to the conduct of the Partnership generally Partnership’s operations or the applicable Seriesimplementation of the General Partner’s powers under this Agreement, including contracting with contractors, developers, consultants, accountants, legal counsel, other professional advisors and other agents and the payment of their expenses and compensation out of the Partnership’s assets;
(viviii) the distribution of Partnership cash or property other Partnership assets in accordance with this Agreement, the holding, management, investment and reinvestment of cash and other assets of the applicable SeriesPartnership and the collection and receipt of revenues, rents and income of the Partnership;
(viiix) the maintenance of separate or joint such insurance policies for the benefit of the PartnershipPartnership and the Partners as the General Partner deems necessary or appropriate, any Seriesincluding, any Partners or any Indemniteeswithout limitation, (i) casualty, liability and other insurance on the Properties and (ii) liability insurance for the Indemnitees hereunder;
(viiix) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventureslimited liability companies, REITs, corporations, limited liability companies entities that are treated as REITs, “taxable REIT subsidiaries” or foreign corporations for federal income tax purposes, joint ventures or other relationships subject that the General Partner deems desirable (including, without limitation, the acquisition of interests in, and the contributions of property to, any Subsidiary and any other Person in which it has an equity investment from time to time); provided, however, that as long as the restrictions set forth General Partner has determined to continue to qualify as a REIT, the General Partner may not engage in any such formation, acquisition or contribution that would cause it to fail to qualify as a REIT within the meaning of Code Section 2.4856(a) (so long as the General Partner desires to maintain its qualification as a REIT);
(ixxi) the filing of applications, communicating and otherwise dealing with any and all governmental agencies having jurisdiction over, or in any way affecting, the Partnership’s assets or any other aspect of the Partnership business;
(xii) the control of any matters affecting the rights and obligations of the Partnership or the applicable SeriesPartnership, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigationsettlement, compromise, submission to arbitration or mediation any other form of dispute resolution, or abandonment, of any claim, cause of action, liability, debt or damages, due or owing to or from the Partnership, the commencement or defense of suits, legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, and the representation of the Partnership in all suits or legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, the incurring of legal expense expense, and the settlement of claims and litigation; and
(x) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xiii) the undertaking of any action in connection with the Partnership’s direct or indirect investment in any Subsidiary or any other Person (including, without limitation, the contribution or loan of funds by the Partnership to such Persons);
(xiv) except as otherwise specifically set forth in this Agreement, the determination of the fair market value of any Partnership property distributed in-kind using such reasonable method of valuation as it may adopt; provided, that such methods are otherwise consistent with the requirements of this Agreement;
(xv) the enforcement of any rights against any Partner pursuant to representations, warranties, covenants and indemnities relating to such Partner’s contribution of property or assets to the Partnership;
(xvi) the exercise, directly or indirectly, through any attorney-in-fact acting under a general or limited power of attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(xvii) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(xviii) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest, pursuant to contractual or other arrangements with such Person;
(xix) the making, execution, delivery and performance of any and all deeds, leases, notes, deeds to secure Debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate in the judgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement;
(xx) the issuance of additional Partnership Units, as appropriate and in the General Partner’s sole and absolute discretion, in connection with Capital Contributions by Additional Limited Partners and additional Capital Contributions by Partners pursuant to Article IV hereof;
(xxi) the selection and dismissal of General Partner Employees (including, without limitation, employees having titles or offices such as president, vice president, secretary and treasurer), and agents, outside attorneys, accountants, consultants and contractors of the Partnership or the General Partner, the determination of their compensation and other terms of employment or hiring and the delegation to any such General Partner Employee the authority to conduct the business of the Partnership in accordance with the terms of this Agreement;
(xxii) the distribution of cash to acquire Partnership Units held by a Limited Partner in connection with a Limited Partner’s exercise of its Redemption right under Section 8.06 hereof;
(xxiii) the amendment and restatement of Exhibit A hereto to reflect accurately at all times the Capital Contributions and Percentage Interests of the Partners as the same are adjusted from time to time to the extent necessary to reflect redemptions, Capital Contributions, the issuance of Partnership Units, the admission of any Additional Limited Partner or any Substituted Limited Partner or otherwise, which amendment and restatement, notwithstanding anything in this Agreement to the contrary, shall not be deemed an amendment to this Agreement, as long as the matter or event being reflected in Exhibit A hereto otherwise is authorized by this Agreement;
(xxiv) the determination regarding whether a payment to a Partner who exercises its Redemption Right under Section 8.06 hereof that is assumed by the General Partner will be paid in the form of the Cash Amount or the REIT Shares Amount, except as such determination may be limited by Section 8.06 hereof;
(xxv) an election to dissolve the Partnership pursuant to Section 13.01(d) hereof;
(xxvi) doing any and all acts and things necessary or prudent to ensure that the Partnership will not be classified as a “publicly traded partnership” taxable as a corporation under Code Section 7704; and
(xxvii) the taking of any action necessary or appropriate to enable the General Partner to qualify as a REIT (so long as the General Partner desires to maintain its qualification as a REIT).
(b) Each of the Limited Partners agrees that, except as provided in Section 7.03 hereof, the General Partner is authorized to execute, deliver and perform the above-mentioned agreements and transactions on behalf of the Partnership without any further act, approval or vote of the Partners, notwithstanding any other provision of this Agreement, the Act or any applicable law, rule or regulation.
(c) At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain working capital and other reserves in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
(d) In exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner (including the General Partner) of any action taken (or not taken) by it. Except as may be provided in a separate written agreement between the Partnership and the Limited Partners, the General Partner and the Partnership shall not have liability to a Limited Partner under any circumstances as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner pursuant to its authority under this Agreement provided, that the General Partner has acted in good faith and pursuant to its authority under this Agreement.
Appears in 1 contract
Sources: Agreement of Limited Partnership (Schottenstein Realty Trust, Inc.)
Management. (a) The Managing General Partner of the Partnership generally shall conduct, direct and manage all activities of the Partnership generally, and the Managing General Partner of each Series shall conduct, direct and manage all activities of the Series for which it serves as Managing General Partner. A. Except as otherwise expressly provided in this Agreement, (i) all management powers over the business and affairs of the Partnership generally shall be are exclusively vested in the Managing General Partner of the Partnership generallyPartner, and no Limited Partner or other General Partner shall have any right to participate in or exercise control or management power over the business and affairs of (or authority to bind) the Partnership generally and (ii) all management powers over Partnership; provided, however, that the business and affairs of each Series shall be exclusively vested in the Managing General Partner may be removed by the holders of a majority of the Class A Common Units, with or without cause, such Series, and no removal effective upon the delivery of written notice thereof by the Limited Partner or other Partners to the General Partner shall have any management power over the business and affairs of (or authority to bind) such SeriesPartner. In addition to the powers now or hereafter granted a general partner of a limited partnership under the Act and other applicable law or that which are granted to a Managing the General Partner under any other provision of this Agreement, each Managing the General Partner, subject to any approval required by the other provisions hereof including Section 7.4, Section 7.5 or any other provision of this Agreement7.3, shall have full power and authority to do all things and on such terms as it determines to be deemed necessary or appropriate desirable by it to conduct the business of the Partnership generally or the applicable Series, as the case may bePartnership, to exercise all powers set forth in Section 2.5 3.2 and to effectuate the purposes set forth in Section 2.43.1, including the followingincluding, without limitation:
(i) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money to permit the Partnership to make distributions to its Partners in such amounts as will permit AMB, in its capacity as the sole general partner of the Operating Partnership and as the indirect owner of 100% of the equity interests of the General Partner (for so long as AMB has determined to qualify as a REIT), to avoid the payment of any Federal income tax (including, for this purpose, any excise tax pursuant to Section 4981 of the Code) and to make distributions to its stockholders sufficient to permit AMB to maintain REIT status), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtedness (including the securing of same by mortgage, deed of trust or other lien or encumbrance on all or any of the Partnership's assets) and the incurring of any other obligationsobligations it deems necessary for the conduct of the activities of the Partnership;
(ii) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership and each Series (other than in connection with the matters set forth in Section 9.3)Partnership;
(iii) subject to the provisions of Section 7.3.D, the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the applicable Series Partnership or the merger or other combination of the Partnership with or into another Personentity;
(iv) the mortgage, pledge, encumbrance or hypothecation of all or any assets of the Partnership, and the use of the assets of the applicable Series Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms it sees fit, including, without limitation, the financing of the conduct or the operations of the General Partner or the Partnership, the lending of funds to other Persons (including, without limitation, the General Partner (if necessary to permit the financing or capitalization of a subsidiary of the General Partner or the Partnership) and any Subsidiaries of the Partnership) and the repayment of obligations of the Partnership, any of its Subsidiaries and any other Person in which it has an equity investment;
(v) the negotiation, execution execution, and performance of any contracts, leases, conveyances or other instruments on behalf that the General Partner considers useful or necessary to the conduct of the Partnership generally Partnership's operations or the applicable Seriesimplementation of the General Partner's powers under this Agreement;
(vi) the distribution of Partnership cash or property of the applicable Seriesother Partnership assets in accordance with this Agreement;
(vii) the selection and dismissal of employees of the Partnership (including, without limitation, employees having titles such as "president," "vice president," "secretary" and "treasurer"), and agents, outside attorneys, accountants, consultants and contractors of the Partnership, the determination of their compensation and other terms of employment or hiring, including waivers of conflicts of interest and the payment of their expenses and compensation out of the Partnership's assets;
(viii) the maintenance of separate or joint such insurance policies for the benefit of the Partnership, any Series, any Partnership and the Partners as it deems necessary or any Indemniteesappropriate;
(viiiix) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies ventures or other relationships subject that it deems desirable (including, without limitation, the acquisition of interests in, and the contributions of property to any Subsidiary and any other Person in which it has an equity investment from time to time); provided that as long as AMB, in its capacity as the restrictions set forth indirect owner of 100% of the equity interests of the General Partner and as the sole general partner of the Operating Partnership, has determined to continue to qualify as a REIT, the Partnership may not engage in Section 2.4any such formation, acquisition or contribution that would cause AMB to fail to qualify as a REIT;
(ixx) the control of any matters affecting the rights and obligations of the Partnership or the applicable SeriesPartnership, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigation, arbitration or mediation litigation and the incurring of legal expense and the settlement of claims and litigation; and
(x) , and the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xi) the undertaking of any action in connection with the Partnership's direct or indirect investment in any Person (including, without limitation, contributing or loaning Partnership funds to, incurring indebtedness on behalf of, or guarantying the obligations of any such Persons);
(xii) subject to the other provisions in this Agreement, the determination of the fair market value of any Partnership property distributed in kind using such reasonable method of valuation as it may adopt; provided that, such methods are otherwise consistent with requirements of this Agreement;
(xiii) the management, operation, leasing, landscaping, repair, alteration, demolition or improvement of any real property or improvements owned by the Partnership or any Subsidiary of the Partnership or any Person in which the Partnership has made a direct or indirect equity investment;
(xiv) holding, managing, investing and reinvesting cash and other assets of the Partnership;
(xv) the collection and receipt of revenues and income of the Partnership;
(xvi) the exercise, directly or indirectly through any attorney-in-fact acting under a general or limited power of attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(xvii) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(xviii) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest, pursuant to contractual or other arrangements with such Person;
(xix) the making, execution and delivery of any and all deeds, leases, notes, deeds to secure debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or other agreements in writing necessary or appropriate in the judgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement; and
(xx) the making of loans by the Partnership to its Partners, for any purpose, provided that such loans be upon arm's-length terms.
B. Each of the Limited Partners agrees that the General Partner is authorized to execute, deliver and perform the above-mentioned agreements and transactions on behalf of the Partnership without any further act, approval or vote of the Partners, notwithstanding any other provisions of this Agreement (except as provided in Section 7.3), the Act or any applicable law, rule or regulation. The execution, delivery or performance by the General Partner or the Partnership of any agreement authorized or permitted under this Agreement shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement or of any duty stated or implied by law or equity.
C. At all times from and after the date hereof, the General Partner may cause the Partnership to obtain and maintain (i) casualty, liability and other insurance (including, without limitation, earthquake insurance) on the properties of the Partnership and (ii) liability insurance for the Indemnities hereunder.
D. At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain working capital and other reserves in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
E. In exercising its authority under this Agreement, the General Partner may, but other than as set forth in the following sentence and as expressly set forth in the agreements listed on Exhibit H hereto, shall be under no obligation to, take into account the tax consequences to any Partner (including the General Partner) of any action taken by the General Partner. The General Partner and the Partnership shall not have liability to a Limited Partner under any circumstances as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner pursuant to its authority under this Agreement.
F. Except as otherwise provided herein, to the extent the duties of the General Partner require expenditures of funds to be paid to third parties, the General Partner shall not have any obligations hereunder except to the extent that Partnership funds are reasonably available to it for the performance of such duties, and nothing herein contained shall be deemed to authorize or require the General Partner, in its capacity as such, to expend its individual funds for payment to third parties or to undertake any individual liability or obligation on behalf of the Partnership.
Appears in 1 contract
Sources: Agreement of Limited Partnership (Amb Property Corp)
Management. (a) The Managing General Partner of the Partnership generally shall conduct, direct and manage all activities of the Partnership generally, and the Managing General Partner of each Series shall conduct, direct and manage all activities of the Series for which it serves as Managing General Partner. A. Except as otherwise expressly provided in this Agreement, (i) all management powers over the business and affairs of the Partnership generally shall be are exclusively vested in the Managing General Partner of the Partnership generallyPartner, and no Limited Partner or other General Partner shall have any right to participate in or exercise control or management power over the business and affairs of (or authority to bind) the Partnership generally and (ii) all management powers over the business and affairs of each Series shall be exclusively vested in the Managing Partnership. The General Partner may not be removed by the Limited Partners with or without cause, except with the consent of such Series, and no Limited Partner or other the General Partner shall have any management power over the business and affairs of (or authority to bind) such SeriesPartner. In addition to the powers now or hereafter granted a general partner of a limited partnership under the Act and other applicable law or that which are granted to a Managing the General Partner under any other provision of this Agreement, each Managing the General Partner, subject to any approval required by the other provisions hereof including Section 7.4, Section 7.5 or any other provision of this Agreement7.3, shall have full power and authority to do all things and on such terms as it determines to be deemed necessary or appropriate desirable by it to conduct the business of the Partnership generally or the applicable Series, as the case may bePartnership, to exercise all powers set forth in Section 2.5 3.2 hereof and to effectuate the purposes set forth in Section 2.43.1 hereof, including the followingincluding, without limitation:
(i1) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money to permit the Partnership to make distributions to its Partners in such amounts as will permit the General Partner (so long as the General Partner has determined to qualify as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Section 4981 of the Code) and to make distributions to its stockholders sufficient to permit the General Partner to maintain REIT status), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtedness (including the securing of same by mortgage, deed of trust or other lien or encumbrance on all or any of the Partnership's assets) and the incurring of any other obligationsobligations it deems necessary for the conduct of the activities of the Partnership;
(ii2) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership and each Series (other than in connection with the matters set forth in Section 9.3)Partnership;
(iii3) subject to the provisions of Section 7.3.D hereof, the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the applicable Series Partnership or the merger or other combination of the Partnership with or into another Personentity;
(iv4) the mortgage, pledge, encumbrance or hypothecation of all or any assets of the Partnership, and the use of the assets of the applicable Series Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms it sees fit, including, without limitation, the financing of the conduct or the operations of the General Partner or the Partnership, the lending of funds to other Persons (including, without limitation, the General Partner (if necessary to permit the financing or capitalization of a subsidiary of the General Partner or the Partnership) and any Subsidiaries of the Partnership) and the repayment of obligations of the Partnership, any of its Subsidiaries and any other Person in which it has an equity investment;
(v5) the negotiation, execution execution, and performance of any contracts, leases, conveyances or other instruments on behalf that the General Partner considers useful or necessary to the conduct of the Partnership generally Partnership's operations or the applicable Seriesimplementation of the General Partner's powers under this Agreement;
(vi6) the distribution of Partnership cash or property of the applicable Seriesother Partnership assets in accordance with this Agreement;
(vii7) the selection and dismissal of employees of the Partnership (including, without limitation, employees having titles such as "president," "vice president," "secretary" and "treasurer"), and agents, outside attorneys, accountants, consultants and contractors of the Partnership, the determination of their compensation and other terms of employment or hiring, including waivers of conflicts of interest and the payment of their expenses and compensation out of the Partnership's assets;
(8) the maintenance of separate or joint such insurance policies for the benefit of the Partnership, any Series, any Partnership and the Partners as it deems necessary or any Indemniteesappropriate;
(viii9) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies ventures or other relationships subject that it deems desirable (including, without limitation, the acquisition of interests in, and the contributions of property to any Subsidiary and any other Person in which it has an equity investment from time to time); provided that, as long as the restrictions set forth General Partner has -------- ---- determined to continue to qualify as a REIT, the Partnership may not engage in Section 2.4any such formation, acquisition or contribution that would cause the General Partner to fail to qualify as a REIT;
(ix10) the control of any matters affecting the rights and obligations of the Partnership or the applicable SeriesPartnership, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigation, arbitration or mediation litigation and the incurring of legal expense and the settlement of claims and litigation; and
(x) , and the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(11) the undertaking of any action in connection with the Partnership's direct or indirect investment in any Person (including, without limitation, contributing or loaning Partnership funds to, incurring indebtedness on behalf of, or guarantying the obligations of any such Persons);
(12) subject to the other provisions in this Agreement, the determination of the fair market value of any Partnership property distributed in kind using such reasonable method of valuation as it may adopt, provided that such methods are -------- ---- otherwise consistent with requirements of this Agreement;
(13) the management, operation, leasing, landscaping, repair, alteration, demolition or improvement of any real property or improvements owned by the Partnership or any Subsidiary of the Partnership or any Person in which the Partnership has made a direct or indirect equity investment;
(14) holding, managing, investing and reinvesting cash and other assets of the Partnership;
(15) the collection and receipt of revenues and income of the Partnership;
(16) the exercise, directly or indirectly through any attorney-in-fact acting under a general or limited power of attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(17) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(18) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest, pursuant to contractual or other arrangements with such Person; and
(19) the making, execution and delivery of any and all deeds, leases, notes, deeds to secure debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or other agreements in writing necessary or appropriate in the judgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement.
B. Each of the Limited Partners agrees that the General Partner is authorized to execute, deliver and perform the above-mentioned agreements and transactions on behalf of the Partnership without any further act, approval or vote of the partners, notwithstanding any other provisions of this Agreement (except as provided in Section 7.3), the Act or any applicable law, rule or regulation. The execution, delivery or performance by the General Partner or the Partnership of any agreement authorized or permitted under this Agreement shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement or of any duty stated or implied by law or equity.
C. At all times from and after the date hereof, the General Partner may cause the Partnership to obtain and maintain (i) casualty, liability and other insurance (including, without limitation, earthquake insurance) on the properties of the Partnership and (ii) liability insurance for the Indemnities hereunder.
D. At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain working capital and other reserves in such amounts as the General Partner, in it sole and absolute discretion, deems appropriate and reasonable from time to time.
E. In exercising its authority under this Agreement, the General Partner may, but, other than as set forth in the following sentence and to Section 11.2.D, shall be under no obligation to, take into account the tax consequences to any Partner (including the General Partner) of any action taken by the General Partner. The General Partner, on behalf of the Partnership, shall use commercially reasonable efforts to cooperate with the Limited Partners to minimize any taxes payable in connection with any repayment, refinancing, replacement or restructuring of Debt, or any sale, exchange or any other disposition of assets, of the Partnership. The General Partner and the Partnership shall not have liability to a Limited Partner under any circumstances as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner pursuant to its authority under this Agreement.
F. Except as otherwise provided herein, to the extent the duties of the General Partner require expenditures of funds to be paid to third parties, the General Partner shall not have any obligations hereunder except to the extent that Partnership funds are reasonably available to it for the performance of such duties, and nothing herein contained shall be deemed to authorize or require the General Partner, in its capacity as such, to expend its individual funds for payment to third parties or to undertake any individual liability or obligation on behalf of the Partnership.
Appears in 1 contract
Management. (a) The Managing General Partner of the Partnership generally shall conduct, direct and manage all activities of the Partnership generally, and the Managing General Partner of each Series shall conduct, direct and manage all activities of the Series for which it serves as Managing General Partner. Except as otherwise expressly provided in this Agreement, (i) all management powers over the business and affairs of the Partnership generally are and shall be exclusively vested in the Managing General Partner of the Partnership generallyPartner, and no Limited Partner or other General Partner shall have any right to participate in or exercise control or management power over the business and affairs of (or authority to bind) the Partnership generally and (ii) all management powers over the business and affairs of each Series shall be exclusively vested in the Managing Partnership. The General Partner may not be removed by the Limited Partners, except with the consent of such Series, and no Limited Partner or other the General Partner shall have any management power over the business and affairs of (or authority to bind) such SeriesPartner. In addition to the powers now or hereafter granted to a general partner of a limited partnership under applicable law or that are granted to a Managing the General Partner under any other provision of this Agreement, each Managing the General Partner, subject to any approval required by the other provisions hereof including Section 7.4, 7.03 and Section 7.5 or any other provision of this Agreement11.02, shall have full power and authority to do all things and on such terms as it determines to be deemed necessary or appropriate desirable by it to conduct the business of the Partnership generally or the applicable Series, as the case may bePartnership, to exercise all powers set forth in Section 2.5 3.02 hereof and to effectuate the purposes set forth in Section 2.43.01 hereof, including the followingincluding, without limitation:
(i) the making of any expenditures, the lending or borrowing of money, the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtedness (including the securing of same by deed to secure debt, mortgage, deed of trust or other lien or encumbrance on the Partnership’s assets) and the incurring of any other obligationsobligations that it deems necessary for the conduct of the activities of the Partnership;
(ii) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership, the registration of any class of securities of the Partnership under the Exchange Act and each Series (other than in connection with the matters set forth in Section 9.3)listing of any debt securities of the Partnership on any exchange;
(iii) subject to Section 11.02 hereof, the acquisition, dispositionsale, mortgagelease, pledgetransfer, encumbranceexchange or other disposition of any, hypothecation all or exchange of any or substantially all of the assets of the applicable Series Partnership (including, but not limited to, the exercise or grant of any conversion, option, privilege or subscription right or any other right available in connection with any assets at any time held by the Partnership) or the merger merger, consolidation, reorganization or other combination of the Partnership with or into another Personentity;
(iv) the mortgage, pledge, encumbrance or hypothecation of any assets of the Partnership, the use of the assets of the applicable Series Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms that it sees fit, including, without limitation, the financing of the operations and activities of the General Partner, the Partnership or any of the Partnership’s Subsidiaries, the lending of funds to other Persons (including, without limitation, the Partnership’s Subsidiaries) and the repayment of obligations of the Partnership, its Subsidiaries and any other Person in which the Partnership has an equity investment, and the making of capital contributions to and equity investments in the Partnership’s Subsidiaries;
(v) the use of the assets of the Partnership (including, without limitation, cash on hand) for any purpose consistent with the terms of this Agreement and on any terms it sees fit, including, without limitation, the financing of the conduct of the operations of the General Partner, the Partnership or any of the Partnership’s Subsidiaries, the lending of funds to other Persons (including, without limitation, the General Partner and its Subsidiaries and the Partnership’s Subsidiaries) and the repayment of obligations of the Partnership and its Subsidiaries and any other Person in which the Partnership has an equity investment and the making of capital contributions to its Subsidiaries;
(vi) the management, operation, leasing, landscaping, repair, alteration, demolition, replacement or improvement of any Property, including, without limitation, any Contributed Property, or other asset of the Partnership or any Subsidiary, whether pursuant to a Services Agreement or otherwise;
(vii) the negotiation, execution and performance of any contracts, leases, conveyances or other instruments on behalf that the General Partner considers useful or necessary to the conduct of the Partnership generally Partnership’s operations or the applicable Seriesimplementation of the General Partner’s powers under this Agreement, including contracting with contractors, developers, consultants, accountants, legal counsel, other professional advisors and other agents and the payment of their expenses and compensation out of the Partnership’s assets;
(viviii) the distribution of Partnership cash or property other Partnership assets in accordance with this Agreement, the holding, management, investment and reinvestment of cash and other assets of the applicable SeriesPartnership and the collection and receipt of revenues, rents and income of the Partnership;
(viiix) the maintenance of separate or joint such insurance policies for the benefit of the PartnershipPartnership and the Partners as the General Partner deems necessary or appropriate, any Seriesincluding, any Partners or any Indemniteeswithout limitation, (i) casualty, liability and other insurance on the Properties and (ii) liability insurance for the Indemnitees hereunder;
(viiix) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies companies, joint ventures or other relationships subject that the General Partner deems desirable (including, without limitation, the acquisition of interests in, and the contributions of property to, any Subsidiary and any other Person in which it has an equity investment from time to the restrictions set forth in Section 2.4time);
(ixxi) the filing of applications, communicating and otherwise dealing with any and all governmental agencies having jurisdiction over, or in any way affecting, the Partnership’s assets or any other aspect of the Partnership business;
(xii) the control of any matters affecting the rights and obligations of the Partnership or the applicable SeriesPartnership, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigationsettlement, compromise, submission to arbitration or mediation any other form of dispute resolution, or abandonment, of any claim, cause of action, liability, debt or damages, due or owing to or from the Partnership, the commencement or defense of suits, legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, and the representation of the Partnership in all suits or legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, the incurring of legal expense expense, and the settlement of claims and litigation; and
(x) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xiii) the undertaking of any action in connection with the Partnership’s direct or indirect investment in any Subsidiary or any other Person (including, without limitation, the contribution or loan of funds by the Partnership to such Persons);
(xiv) except as otherwise specifically set forth in this Agreement, the determination of the fair market value of any Partnership property distributed in-kind using such reasonable method of valuation as it may adopt; provided, that such methods are otherwise consistent with the requirements of this Agreement;
(xv) the enforcement of any rights against any Partner pursuant to representations, warranties, covenants and indemnities relating to such Partner’s contribution of property or assets to the Partnership;
(xvi) the exercise, directly or indirectly, through any attorney-in-fact acting under a general or limited power-of-attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(xvii) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(xviii) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest, pursuant to contractual or other arrangements with such Person;
(xix) the making, execution and delivery of any and all deeds, leases, notes, deeds to secure Debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate in the judgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement;
(xx) the issuance of additional Partnership Units, as appropriate and in the General Partner’s sole and absolute discretion, in connection with Capital Contributions by Additional Limited Partners and additional Capital Contributions by Partners pursuant to Article IV hereof;
(xxi) the selection and dismissal of General Partner Employees (including, without limitation, employees having titles or offices such as president, vice president, secretary and treasurer), and agents, outside attorneys, accountants, consultants and contractors of the Partnership or the General Partner, the determination of their compensation and other terms of employment or hiring and the delegation to any such General Partner Employee the authority to conduct the business of the Partnership in accordance with the terms of this Agreement;
(xxii) the distribution of cash to acquire Partnership Units held by a Limited Partner in connection with a Limited Partner’s exercise of its Redemption right under Section 8.06 hereof;
(xxiii) the amendment and restatement of Exhibit A hereto to reflect accurately at all times the Capital Contributions and Percentage Interests of the Partners as the same are adjusted from time to time to the extent necessary to reflect redemptions, Capital Contributions, the issuance of Partnership Units, the admission of any Additional Limited Partner or any Substituted Limited Partner or otherwise, which amendment and restatement, notwithstanding anything in this Agreement to the contrary, shall not be deemed an amendment to this Agreement, as long as the matter or event being reflected in Exhibit A hereto otherwise is authorized by this Agreement;
(xxiv) the determination regarding whether a payment to a Partner who exercises its Redemption Right under Section 8.06 that is assumed by the Parent will be paid in the form of the Cash Amount or the Parent Shares Amount, except as such determination may be limited by Section 8.06;
(xxv) the collection and receipt of revenues and income of the Partnership;
(xxvi) the registration of any class of securities of the Partnership under the Securities Act or the Exchange Act, and the listing of any debt securities of the Partnership on any exchange;
(xxvii) an election to dissolve the Partnership pursuant to Section 13.01(b) hereof; and
(xxviii) the taking of any action necessary or appropriate to prevent the Partnership or the General Partner from being subject to regulation under the Investment Company Act.
(b) Each of the Limited Partners agrees that, except as provided in Section 7.03 hereof, the General Partner is authorized to execute, deliver and perform the above-mentioned agreements and transactions on behalf of the Partnership without any further act, approval or vote of the Partners, notwithstanding any other provision of this Agreement, the Act or any applicable law, rule or regulation.
(c) At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain working capital and other reserves in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
(d) In exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner (including the General Partner) of any action taken (or not taken) by it. Except as may be provided in a separate written agreement between the Partnership and the Limited Partners, the General Partner and the Partnership shall not have liability to a Limited Partner under any circumstances as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner pursuant to its authority under this Agreement provided, that the General Partner has acted in good faith and pursuant to its authority under this Agreement.
Appears in 1 contract
Sources: Limited Partnership Agreement (Hannon Armstrong Sustainable Infrastructure Capital, Inc.)
Management. (a) The Managing General Partner of the Partnership generally shall conduct, direct and manage all activities of the Partnership generally, and the Managing General Partner of each Series shall conduct, direct and manage all activities of the Series for which it serves as Managing General Partner. A. Except as otherwise expressly provided in this Agreement, (i) all management powers over the business and affairs of the Partnership generally are and shall be exclusively vested in the Managing General Partner of the Partnership generallyPartner, and no Limited Partner or other General Partner shall have any right to participate in or exercise control or management power over the business and affairs of (or authority to bind) the Partnership generally and (ii) all management powers over the business and affairs of each Series shall be exclusively vested in the Managing Partnership. The General Partner of such Series, and no may not be removed by the Limited Partner Partners with or other General Partner shall have any management power over the business and affairs of (or authority to bind) such Serieswithout cause. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or that which are granted to a Managing the General Partner under any other provision of this Agreement, each Managing the General Partner, subject to any approval required by Section 7.4, Section 7.5 or any other provision of this Agreement, Partner shall have full power and authority to do all things and on such terms as it determines to be deemed necessary or appropriate desirable by it to conduct the business of the Partnership generally or the applicable Series, as the case may bePartnership, to exercise all powers set forth in Section 2.5 3.2 hereof and to effectuate the purposes set forth in Section 2.43.1 hereof, including including, without limitation (but in all cases subject to the following:terms of this Agreement):
(i1) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, money to be used to pay off a portion of the existing debt encumbering the Partnership's assets) and making prepayments on loans and borrowing money to permit the Partnership to make distributions to its Partners in such amounts as will permit PGP (so long as PGP qualifies as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Section 4981 of the Code) and to make distributions to its shareholders in amounts sufficient to permit PGP to maintain REIT status), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences evidence of indebtedness (including the securing of the same by deed, mortgage, deed of trust or other lien or encumbrance on the Partnership's assets) and the incurring of any other obligationsobligations it deems necessary for the conduct of the activities of the Partnership;
(ii2) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership and each Series (other than in connection with the matters set forth in Section 9.3)Partnership;
(iii3) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the applicable Series Partnership (including the exercise or grant of any conversion, option, privilege, or subscription right or other right available in connection with any assets at any time held by the Partnership) or the merger or other combination of the Partnership with or into another Personentity;
(iv4) the use of the assets of the applicable Series Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this Agreement;
Agreement and on any terms it sees fit, including, without limitation, the financing of the conduct of the operations of the General Partner, the Partnership or any of the Partnership's Subsidiaries, the lending of funds to other Persons (v) including, without limitation, the negotiation, execution and performance of any contracts, conveyances or other instruments on behalf Subsidiaries of the Partnership generally or and/or the applicable Series;
(viGeneral Partner) and the distribution repayment of cash or property obligations of the applicable Series;
(vii) the maintenance of separate or joint insurance policies for the benefit of the PartnershipPartnership and its Subsidiaries and any other Person in which it has an equity investment, any Series, any Partners or any Indemnitees;
(viii) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans tocapital contributions to its Subsidiaries, any further limited or general partnerships, joint ventures, corporations, limited liability companies or other relationships subject to the restrictions set forth in Section 2.4;
(ix) the control holding of any matters affecting real, personal and mixed property of the rights and obligations Partnership in the name of the Partnership or the applicable Series, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct name of litigation, arbitration a nominee or mediation trustee and the incurring creation, by grant or otherwise, of legal expense and the settlement of claims and litigation; andeasements or servitudes;
(x5) the indemnification management, operation, leasing, collection of any Person against liabilities and contingencies to rents, marketing, landscaping, repair, alteration, renovation, rehabilitation, demolition or improvement of the extent permitted by law.Property
Appears in 1 contract
Sources: Limited Partnership Agreement (Pacific Gulf Properties Inc)
Management. (a) The Managing General Partner of the Partnership generally shall conduct, direct and manage all activities of the Partnership generally, and the Managing General Partner of each Series shall conduct, direct and manage all activities of the Series for which it serves as Managing General Partner. A. Except as otherwise expressly provided in this Agreement, (i) all management powers over the business and affairs of the Partnership generally are and shall be exclusively vested in the Managing General Partner of Partner, and, except as provided in Section 8.1E hereof, neither Metropolis nor the Partnership generally, and no Limited Partner or other General Partner shall have any right to participate in or exercise control or management power over the business and affairs of (or authority to bind) the Partnership generally and (ii) all management powers over the business and affairs of each Series shall be exclusively vested in the Managing Partnership. The General Partner of such Series, and no may not be removed by the Metropolis or the Limited Partner with or other General Partner shall have any management power over the business and affairs of (or authority to bind) such Serieswithout cause. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or that which are granted to a Managing the General Partner under any other provision of this Agreement, each Managing the General PartnerPartner shall have, subject to any approval required by Section 7.48.1E hereof, Section 7.5 or any other provision of this Agreement, shall have full power and authority to do all things and on such terms as it determines to be deemed necessary or appropriate desirable by it to conduct the business of the Partnership generally or the applicable Series, as the case may bePartnership, to exercise all powers set forth in Section 2.5 4.2 hereof and to effectuate the purposes set forth in Section 2.44.1 hereof, including the followingincluding, without limitation:
(ia) the making of any expenditures, the lending or borrowing of money, including, without limitation, making prepayments on loans and borrowing money to permit the Partnership to make distributions to its Partners in such amounts as will permit Metropolis (so long as Metropolis qualifies as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Section 4981 of the Code) and to make distributions to its stockholders in amounts sufficient to permit Metropolis to maintain REIT status, (b) the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, (c) the issuance of evidences evidence of indebtedness (including the securing of the same by deed, mortgage, deed of trust or other lien or encumbrance on the Partnership's assets) and (d) the incurring of any other obligationsobligations it deems necessary for the conduct of the activities of the Partnership;
(ii2) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership and each Series (other than in connection with the matters set forth in Section 9.3)Partnership;
(iii3) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the applicable Series Partnership (including the exercise or grant of any conversion, option, privilege, or subscription right or other right available in connection with any assets at any time held by the Partnership) or the merger or other combination of the Partnership with or into another Personentity;
(iv4) the use of the assets of the applicable Series Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms it sees fit, including, without limitation, the financing of the conduct of the operations of the Partnership, the repayment of obligations of the Partnership and the Subsidiaries of the Partnership and any other Person in which the Partnership has an equity investment, and the making of capital contributions to the Partnership's Subsidiaries;
(v5) the management, operation, expansion, development, construction, leasing, landscaping, repair, alteration, demolition or improvement of any real property or improvements owned by the Partnership or any Subsidiary of the Partnership;
(6) the negotiation, execution execution, and performance of any contracts, conveyances or other instruments on behalf that the General Partner considers useful or necessary to the conduct of the Partnership generally Partnership's operations or the applicable Seriesimplementation of the General Partner's powers under this Agreement, including (i) contracting with property managers, leasing agents, contractors, developers, consultants, accountants, legal counsel, other professional advisors and other agents, and (ii) the payment of such related expenses and compensation out of the Partnership's assets;
(vi7) the distribution of Partnership cash or property of the applicable Seriesother Partnership assets in accordance with this Agreement;
(vii8) holding, managing, investing and reinvesting cash and other assets of the Partnership;
(9) the collection and receipt of revenues and income of the Partnership;
(10) the establishment of one or more divisions of the Partnership, the selection and dismissal of employees of the Partnership (including, without limitation, employees having titles such as "president," "vice president," "secretary" and "treasurer" of the Partnership), and agents, outside attorneys, accountants, consultants and contractors of the Partnership, and the determination of their compensation and other terms of employment or engagement;
(11) the maintenance of separate or joint such insurance policies for the benefit of the Partnership, any Series, any Partnership and the Partners as it deems necessary or any Indemniteesappropriate;
(viii12) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies ventures or other relationships subject that it deems desirable (including, without limitation, the acquisition of interests in, and the contributions of property to, its Subsidiaries and any other Person in which it has an equity investment from time to the restrictions set forth in Section 2.4time);
(ix13) the control of any matters affecting the rights and obligations of the Partnership or the applicable SeriesPartnership, including the bringing and defending settlement, compromise, submission to arbitration or any other form of actions at law dispute resolution, or in equity and otherwise engaging in abandonment of, any claim, cause of action, liability, debt or damages, due or owing to or from the conduct Partnership, the commencement or defense of litigationsuits, legal proceedings, administrative proceedings, arbitration or mediation other forms of dispute resolution, and the representation of the Partnership in all suits or legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, the incurring of legal expense expenses, and the settlement of claims and litigation; and
(x) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(14) the undertaking of any action in connection with the Partnership's direct or indirect investment in its Subsidiaries or any other Person (including, without limitation, the contribution or loan of funds by the Partnership to such Persons);
(15) the determination of the fair market value of any Partnership property distributed in kind using such reasonable method of valuation as the General Partner may adopt;
(16) the exercise, directly or indirectly, through any attorney-in-fact acting under a general or limited power of attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(17) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(18) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest pursuant to contractual or other arrangements with such Person;
(19) the making, execution and delivery of any and all deeds, leases, notes, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate, in the judgment of the General Partner, for the accomplishment of any of the foregoing;
(20) the issuance of additional Partnership Interests, as appropriate, in connection with Capital Contributions by Partners pursuant to Article 5 hereof; and
(21) the opening of bank accounts on behalf of, and in the name of, the Partnership and its Subsidiaries.
B. Metropolis and the Limited Partner agree that the General Partner is authorized to execute, deliver and perform the above-mentioned agreements and transactions on behalf of the Partnership without any further act, approval or vote of the Partners (except as provided in Section 8.1E), notwithstanding any other provision of this Agreement, to the fullest extent permitted under the Act or other applicable law, rule or regulation. The execution, delivery or performance by the General Partner or the Partnership of any agreement authorized or permitted under this Agreement shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership, Metropolis or the Limited Partner or any other Persons under this Agreement or of any duty stated or implied by law or equity.
C. At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain at any and all times working capital accounts and other cash or similar balances in such amount as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
D. Except as provided in Section 8.1E, in exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner of any action taken by it. The General Partner and the Partnership shall not have liability to the Limited Partner or Metropolis under any circumstances as a result of an income tax liability incurred by the Limited Partner or its partners or Metropolis or its shareholders as a result of an action (or inaction) by the General Partner taken pursuant to its authority under and in accordance with this Agreement.
E. Notwithstanding anything to the contrary set forth in this Agreement, until the Approval Right Termination Date, the General Partner shall not, without the prior written consent of the Limited Partner (which may be given or withheld in its sole and absolute discretion) cause or permit (to the extent within the General Partner's reasonable control) any Adverse Transaction to occur; provided however that the General Partner shall be under no obligation to commence litigation or to incur any expense (unless JMB/NYC LP shall fund such expense) in order to avoid or prevent an Adverse Transaction from occurring.
F. In connection with such management and subject to any limitations set forth elsewhere in this Agreement, the General Partner:
1. Shall maintain or cause to be maintained, at the expense of the Partnership, complete and accurate records of all correspondence, documents or instruments of any nature relating to the Partnership business. Such records, together with such supporting evidence thereof as is in the control and possession of the Partnership or of the General Partner, shall be kept in the principal office of the General Partner or of the Partnership for such periods as the General Partner deems appropriate. The Partners and/or their authorized representatives, shall have the right to inspect and/or copy any or all of the above-described records during normal business hours.
2. Shall execute any and all documents or instruments of any kind which the General Partner may reasonably deem appropriate in carrying out the purposes of the Partnership.
3. Shall maintain, or cause to have maintained, at the expense of the Partnership, adequate records and accounts of all transactions, operations and expenditures and shall furnish or cause to be furnished the Partners with annual statements of account as of the end of each calendar year.
G. The General Partner may employ or retain such counsel, accountants, appraisers or other experts or advisors as the General Partner may reasonably deem appropriate for the purpose of discharging its duties hereunder, and shall be entitled to pay the fees of any such persons from the funds of the Partnership. The General Partner may act, and shall be protected in acting in good faith, on the opinion or advice of, or information obtained from, any such counsel, accountant, appraiser or other expert or advisor, whether retained or employed by the Partnership, the General Partner, or otherwise, in relation to any matter connected with the administration or operation of the business and affairs of the Partnership.
Appears in 1 contract
Sources: Partnership Agreement (Metropolis Realty Trust Inc)
Management. (a) The Managing General Partner of the Partnership generally shall conduct, direct and manage all activities of the Partnership generally, and the Managing General Partner of each Series shall conduct, direct and manage all activities of the Series for which it serves as Managing General Partner. A. Except as otherwise expressly provided in this Agreement, (i) all management powers over the business and affairs of the Partnership generally are and shall be exclusively vested in the Managing General Partner of the Partnership generallyPartner, and no Limited Partner or other General Partner shall have any right to participate in or exercise control or management power over the business and affairs of (or authority to bind) the Partnership generally and (ii) all management powers over the business and affairs of each Series shall be exclusively vested in the Managing Partnership. The General Partner of such Series, and no may not be removed by the Limited Partner Partners with or other General Partner shall have any management power over the business and affairs of (or authority to bind) such Serieswithout cause. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or that which are granted to a Managing the General Partner under any other provision of this Agreement, each Managing the General Partner, subject to any approval required by Section 7.4, Section 7.5 or any other provision of this Agreement7.3 hereof, shall have full power and authority to do all things and on such terms as it determines to be deemed necessary or appropriate desirable by it to conduct the business of the Partnership generally or the applicable Series, as the case may bePartnership, to exercise all powers set forth in Section 2.5 3.2 hereof and to effectuate the purposes set forth in Section 2.43.1 hereof, including the followingincluding, without limitation:
(i1) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money to permit the Partnership to make distributions to its Partners in such amounts as will permit the General Partner (so long as the General Partner qualifies as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Section 4981 of the Code) and to make distributions to the General Partner such that the General Partner can distribute to its shareholders amounts sufficient to permit the General Partner to maintain REIT status), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtedness (including the securing of same by deed to secure debt, mortgage, deed of trust or other lien or encumbrance on the Partnership's assets) and the incurring of any other obligationsobligations it deems necessary for the conduct of the activities of the Partnership;
(ii2) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership and each Series (other than in connection with the matters set forth in Section 9.3)Partnership;
(iii3) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the applicable Series Partnership (including the exercise or grant of any conversion, option, privilege, or subscription right or other right available in connection with any assets at any time held by the Partnership) or the merger or other combination of the Partnership with or into another Personentity (all of the foregoing subject to any prior approval only to the extent required by Section 7.3 hereof);
(iv4) the use of the assets of the applicable Series Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms it sees fit, including, without limitation, the financing of the conduct of the operations of the General Partner, the Partnership or any of the Partnership's Subsidiaries, the lending of funds to other Persons (including, without limitation, the Subsidiaries of the Partnership and/or the General Partner) and the repayment of obligations of the Partnership and its Subsidiaries and any other Person in which it has an equity investment, and the making of capital contributions to its Subsidiaries;
(v5) the management, operation, leasing, landscaping, repair, alteration, demolition or improvement of any real property or improvements owned by the Partnership or any Subsidiary of the Partnership;
(6) the negotiation, execution execution, and performance of any contracts, conveyances or other instruments on behalf that the General Partner considers useful or necessary to the conduct of the Partnership generally Partnership's operations or the applicable Seriesimplementation of the General Partner's powers under this Agreement, including contracting with contractors, developers, consultants, accountants, legal counsel, other professional advisors and other agents and the payment of their expenses and compensation out of the Partnership's assets;
(vi7) the distribution of Partnership cash or property other Partnership assets in accordance with this Agreement, including distributions of equity interests in Subsidiaries of the applicable SeriesPartnership made on a pro rata basis to holders of Common Units, provided that, in connection with the receipt of any such distribution, the General Partner either shall (i) prior to receiving such distribution, enter into a purchase and sale agreement, pursuant to its powers under Article III of the Declaration of Trust, to dispose of such equity interests or other Partnership assets that it receives in such distribution in exchange for cash or (ii) distribute such equity interests or other Partnership assets to the holders of REIT Shares;
(vii8) holding, managing, investing and reinvesting cash and other assets of the Partnership;
(9) the collection and receipt of revenues and income of the Partnership;
(10) the establishment of one or more divisions of the Partnership, the selection and dismissal of employees of the Partnership, any division of the Partnership, or the General Partner (including, without limitation, employees having titles such as “president,” “vice president,” “secretary” and “treasurer” of the Partnership, any division of the Partnership, or the General Partner), and agents, outside attorneys, accountants, consultants and contractors of the General Partner or the Partnership or any division of the Partnership, and the determination of their compensation and other terms of employment or hiring;
(11) the maintenance of separate or joint such insurance policies for the benefit of the Partnership, any Series, any Partnership and the Partners as it deems necessary or any Indemniteesappropriate;
(viii12) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies ventures or other relationships subject that it deems desirable (including, without limitation, the acquisition of interests in, and the contributions of property to, its Subsidiaries and any other Person in which it has an equity investment from time to the restrictions set forth in Section 2.4time);
(ix13) the control of any matters affecting the rights and obligations of the Partnership or the applicable SeriesPartnership, including the bringing and defending settlement, compromise, submission to arbitration or any other form of actions at law dispute resolution, or in equity and otherwise engaging in abandonment of, any claim, cause of action, liability, debt or damages, due or owing to or from the conduct Partnership, the commencement or defense of litigationsuits, legal proceedings, administrative proceedings, arbitration or mediation other forms of dispute, resolution, and the representation of the Partnership in all suits or legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, the incurring of legal expense expense, and the settlement of claims and litigation; and
(x) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(14) the undertaking of any action in connection with the Partnership's direct or indirect investment in its Subsidiaries or any other Person (including, without limitation, the contribution or loan of funds by the Partnership to such Persons);
(15) the determination of the fair market value of any Partnership property distributed in kind using such reasonable method of valuation as it may adopt;
(16) the exercise, directly or indirectly, through any attorney-in-fact acting under a general or limited power of attorney, any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(17) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(18) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest pursuant to contractual or other arrangements with such Person; and
(19) the making, execution and delivery of any and all deeds, leases, notes, deeds to secure debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate in the judgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement.
B. Each of the Limited Partners agrees that the General Partner is authorized to execute, deliver and perform the above-mentioned agreements and transactions on behalf of the Partnership without any further act, approval or vote of the Partners, notwithstanding any other provision of this Agreement (except as provided in Section 7.3), the Act or any applicable law, rule or regulation, to the fullest extent permitted under the Act or other applicable law. The execution, delivery or performance by the General Partner or the Partnership of any agreement authorized or permitted under this Agreement shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement or of any duty stated or implied by law or equity.
C. At all times from and after the date hereof, the General Partner may cause the Partnership to obtain and maintain (i) casualty, liability and other insurance on the properties of the Partnership and (ii) liability insurance for the Indemnitees hereunder.
D. At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain at any and all times working capital accounts and other cash or similar balances in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
E. In exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner of any action taken by it; provided that, if the General Partner decides to refinance (directly or indirectly) any outstanding indebtedness of the Partnership, the General Partner shall use reasonable efforts to structure such refinancing in a manner that minimizes any adverse tax consequences therefrom to the Limited Partners, and provided further that, in deciding whether or not to dispose of any property that represents more than one percent of the Partnership's total assets, the General Partner shall consider in good faith the income tax consequences of such disposition for both the General Partners and the Limited Partners. The General Partner and the Partnership shall not have liability to a Limited Partner under any circumstances as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner pursuant to its authority under this Agreement.
Appears in 1 contract
Sources: Limited Partnership Agreement (Colonial Realty Limited Partnership)
Management. (a) The Managing General Partner of the Partnership generally shall conduct, direct and manage all activities of the Partnership generally, and the Managing General Partner of each Series shall conduct, direct and manage all activities of the Series for which it serves as Managing General PartnerPartnership. Except as otherwise expressly provided in this Agreement, (i) all management powers over the business and affairs of the Partnership generally shall be exclusively vested in the Managing General Partner of the Partnership generallyPartner, and no Limited Partner or other General Partner Assignee shall have any management power over the business and affairs of (or authority to bind) the Partnership generally and (ii) all management powers over the business and affairs of each Series shall be exclusively vested in the Managing General Partner of such Series, and no Limited Partner or other General Partner shall have any management power over the business and affairs of (or authority to bind) such SeriesPartnership. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or that which are granted to a Managing the General Partner under any other provision of this Agreement, each Managing the General Partner, subject to any approval required by Section 7.4, Section 7.5 or any other provision of this Agreement7.3, shall have full power and authority to do all things and on such terms as it determines to be it, in its sole discretion, may deem necessary or appropriate to conduct the business of the Partnership generally or the applicable Series, as the case may bePartnership, to exercise all powers set forth in Section 2.5 and to effectuate the purposes set forth in Section 2.4, including the following:
(i) the making of any expenditures, the lending or borrowing of money, the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtedness, including indebtedness that is convertible into a Partnership Interest, and the incurring of any other obligations;; All American Pipeline, L.P.
(ii) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership and each Series (other than in connection with the matters set forth in Section 9.3)Partnership;
(iii) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the applicable Series Partnership or the merger or other combination of the Partnership with or into another PersonPerson (the matters described in this clause (iii) being subject, however, to any prior approval that may be required by Section 7.3);
(iv) the use of the assets of the applicable Series Partnership (including cash on hand) for any purpose consistent with the terms of this Agreement, including the financing of the conduct of the operations of the Partnership Group, subject to Section 7.6, the lending of funds to other Persons (including the MLP and any Member of the Partnership Group), the repayment of obligations of the MLP or any member of the Partnership Group and the making of capital contributions to any member of the Partnership Group;
(v) the negotiation, execution and performance of any contracts, conveyances or other instruments on behalf (including instruments that limit the liability of the Partnership generally under contractual arrangements to all or particular assets of the applicable SeriesPartnership, with the other party to the contract to have no recourse against the General Partner or its assets other than its interest in the Partnership, even if same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case);
(vi) the distribution of cash or property of the applicable SeriesPartnership cash;
(vii) the selection and dismissal of employees (including employees having titles such as "president," "vice president," "secretary" and "treasurer") and agents, outside attorneys, accountants, consultants and contractors and the determination of their compensation and other terms of employment or hiring;
(viii) the maintenance of separate or joint such insurance policies for the benefit of the Partnership, any Series, any Partnership Group and the Partners as it deems necessary or any Indemniteesappropriate;
(viiiix) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies corporations or other relationships subject to the restrictions set forth in Section 2.4;
(ixx) the control of any matters affecting the rights and obligations of the Partnership or the applicable SeriesPartnership, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigation, arbitration or mediation litigation and the incurring of legal expense and the settlement of claims and litigation; andand All American Pipeline, L.P.
(xxi) the indemnification of any Person against liabilities and contingencies to the extent permitted by law.
(b) Notwithstanding any other provision of this Agreement, the MLP Agreement, the Texas Act or any applicable law, rule or regulation, each of the Partners and Assignees and each other Person who may acquire an interest in the Partnership hereby (i) approves, ratifies and confirms the execution, delivery and performance by the parties thereto of the Partnership Agreement, the MLP Agreement, the Underwriting Agreement, the Omnibus Agreement, the Contribution and Conveyance Agreement and the other agreements and documents described in or filed as exhibits to the Registration Statement that are related to the transactions contemplated by the Registration Statement; (ii) agrees that the General Partner (on its own or through any officer of the Partnership) is authorized to execute, deliver and perform the agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership without any further act, approval or vote of the Partners or the Assignees or the other Persons who may acquire an interest in the Partnership; and (iii) agrees that the execution, delivery or performance by the General Partner, the MLP, any Group Member or any Affiliate of any of them, of this Agreement or any agreement authorized or permitted under this Agreement (including the exercise by the General Partner or any Affiliate of the General Partner of the rights accorded pursuant to Article XV), shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement (or any other agreements) or of any duty stated or implied by law or equity.
Appears in 1 contract
Sources: Agreement of Limited Partnership (Plains All American Pipeline Lp)
Management. (a) The Managing General Partner of the Partnership generally shall conduct, direct and manage all activities of the Partnership generally, and the Managing General Partner of each Series shall conduct, direct and manage all activities of the Series for which it serves as Managing General Partner. Except as otherwise expressly provided in this Agreement, (i) all management powers over the business and affairs of the Partnership generally are and shall be exclusively vested in the Managing General Partner of the Partnership generallyPartner, and no Limited Partner or other General Partner shall have any right to participate in or exercise control or management power over the business and affairs of (or authority to bind) the Partnership generally and (ii) all management powers over the business and affairs of each Series shall be exclusively vested in the Managing Partnership. The General Partner may not be removed by the Limited Partners with or without cause, except with the consent of such Seriesthe General Partner, which it may give or withhold at its sole and no Limited Partner or other General Partner shall have any management power over the business and affairs of (or authority to bind) such Seriesabsolute discretion. In addition to the powers now or hereafter granted to a general partner of a limited partnership under applicable law or that which are granted to a Managing the General Partner under any other provision of this Agreement, each Managing the General Partner, subject to any approval required by Section 7.4, Section 7.5 or any other provision of this Agreement7.3, shall have full power and authority to do all things and on such terms as it determines to be deemed necessary or appropriate desirable by it to conduct the business of the Partnership generally or the applicable Series, as the case may bePartnership, to exercise all powers set forth in Section 2.5 3.2 and to effectuate the purposes set forth in Section 2.43.1, including the followingincluding:
(i) the making of any expenditures, the lending or borrowing of moneymoney (including making prepayments on loans and borrowing money to permit the Partnership to make distributions to its Partners in such amounts as will permit the Company (so long as the Company desires to maintain its qualification as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Code Section 4981) and to make distributions to its shareholders in amounts sufficient to permit the Company to maintain its REIT status), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences evidence of indebtedness (including the securing of the same by deed, mortgage, deed of trust or other lien or encumbrance on the Partnership’s assets) and the incurring of any other obligationsobligations it deems necessary for the conduct of the activities of the Partnership;
(ii) the making of tax, regulatory and other filingsfilings or elections, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership and each Series (other than in connection with the matters set forth in Section 9.3)Partnership;
(iii) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the applicable Series Partnership (including the exercise or grant of any conversion, option, privilege, or subscription right or other right available in connection with any assets at any time held by the Partnership) or the merger or other combination of the Partnership with or into another Personentity (all of the foregoing subject to any prior approval only to the extent required by Section 7.3);
(iv) the mortgage, pledge, encumbrance or hypothecation of any assets of the Partnership, the use of the assets of the applicable Series Partnership (including cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms that it sees fit, including the financing of the conduct of the operations of the Partnership, the Company or any of the Partnership’s or the Company’s Subsidiaries, the lending of funds to other Persons (including the Subsidiaries of the Partnership and/or the Company) and the repayment of obligations of the Partnership and its Subsidiaries and any other Person in which it has an equity investment, and the making of capital contributions to its Subsidiaries;
(v) the management, operation, leasing, landscaping, repair, alteration, demolition, disposition or improvement of any real property or improvements owned by the Partnership or any Subsidiary of the Partnership;
(vi) the negotiation, execution execution, delivery and performance of any contracts, conveyances or other instruments on behalf that the General Partner considers useful or necessary or convenient to the conduct of the Partnership generally Partnership’s operations or the applicable Series;
(vi) the distribution of cash or property implementation of the applicable SeriesGeneral Partner’s powers under this Agreement, including contracting with consultants, accountants, legal counsel, other professional advisors and other agents and the payment of their expenses and compensation out of the Partnership’s assets;
(vii) the distribution of Partnership cash or other Partnership assets in accordance with this Agreement;
(viii) holding, managing, investing and reinvesting cash and other assets of the Partnership;
(ix) the collection and receipt of revenues and income of the Partnership;
(x) the establishment of one or more divisions of the Partnership, the selection and dismissal of employees of the Partnership (including employees who may be designated as officers with titles such as “president,” “vice president,” “secretary” and “treasurer” of the Partnership), and agents, outside attorneys, accountants, consultants and contractors of the Partnership, and the determination of their compensation and other terms of employment or hiring;
(xi) the maintenance of separate or joint such insurance policies for the benefit of the Partnership, any Series, any Partnership and the Partners as it deems necessary or any Indemniteesappropriate;
(viiixii) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventureslimited liability companies, corporations, limited liability companies entities that are treated as REITs, “taxable REIT subsidiaries” or as foreign corporations for federal income tax purposes, joint ventures or other relationships subject that it deems desirable (including the acquisition of interests in, and the contributions of property or the making of loans to, its or the Company’s Subsidiaries and any other Person in which it has an equity investment from time to time or the restrictions set forth incurrence of indebtedness on behalf of such Persons or the guarantee of obligations of such Persons and the making of any tax, regulatory or other filing or election with respect to any of the foregoing Persons); provided, that as long as the Company has determined to continue to qualify as a REIT, the Partnership may not engage in Section 2.4any such formation, acquisition or contribution that would cause the Company to fail to qualify as a REIT;
(ixxiii) the control of any matters affecting the rights and obligations of the Partnership or the applicable SeriesPartnership, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigationsettlement, compromise, submission to arbitration or mediation any other form of dispute resolution, or abandonment of, any claim, cause of action, liability, debt or damages, due or owing to or from the Partnership, the commencement or defense of suits, legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, and the incurring representation of the Partnership in all suits or legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, the incurrence of legal expense expense, and the settlement of claims and litigation; and
(x) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xiv) the undertaking of any action in connection with the Partnership’s direct or indirect investment in any Subsidiary or any other Person (including the contribution or loan of funds by the Partnership to such Persons);
(xv) the determination of the fair market value of any Partnership property distributed in kind using such reasonable method of valuation as the General Partner may adopt;
(xvi) the enforcement of any rights against any Partner pursuant to representations, warranties, covenants and indemnities relating to such Partner’s contribution of property or assets to the Partnership;
(xvii) the exercise, directly or indirectly, through any attorney-in-fact acting under a general or limited power of attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(xviii) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(xix) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest pursuant to contractual or other arrangements with such Person;
(xx) the making, execution, delivery and performance of any and all deeds, leases, notes, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary, appropriate or convenient, in the judgment of the General Partner, for the accomplishment of any of the powers of the General Partner enumerated in this Agreement;
(xxi) the issuance of additional Partnership Units and other partnership interests, as appropriate, in connection with Capital Contributions by Additional Limited Partners and additional Capital Contributions by Partners pursuant to Article 4; and
(xxii) the taking of any action necessary (or appropriate by the General Partner, in its discretion) to enable the Company to qualify as a REIT.
(b) Each of the Limited Partners agrees that the General Partner is authorized to execute, deliver and perform the above-mentioned agreements and transactions on behalf of the Partnership without any further act, approval or vote of the Partners, notwithstanding any other provision of this Agreement (except as provided in Section 7.3), the Act or any applicable law, rule or regulation, to the fullest extent permitted under the Act or other applicable law, rule or regulation. The execution, delivery or performance by the General Partner or the Partnership of any agreement authorized or permitted under this Agreement shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement or of any duty stated or implied by law or equity.
(c) At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain at any and all times working capital accounts and other cash or similar balances in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
(d) In exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to (except as otherwise provided by this Agreement with respect to the qualification of the Company as a REIT), take into account the tax consequences to any Partner of any action taken by it. The General Partner and the Partnership shall not be liable to a Limited Partner under any circumstances as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner taken pursuant to its authority under this Agreement and in accordance with the terms of Section 7.3.
Appears in 1 contract
Sources: Limited Partnership Agreement (Angel Oak Mortgage, Inc.)
Management. (a) The Managing General Partner of the Partnership generally shall conduct, direct and manage all activities of the Partnership generally, and the Managing General Partner of each Series shall conduct, direct and manage all activities of the Series for which it serves as Managing General Partner. A. Except as otherwise expressly provided in this Agreement, (i) all management powers over the business and affairs of the Partnership generally shall be are exclusively vested in the Managing General Partner of the Partnership generallyPartner, and no Limited Partner or other General Partner shall have any right to participate in or exercise control or management power over the business and affairs of (or authority to bind) the Partnership generally and (ii) all management powers over the business and affairs of each Series shall be exclusively vested in the Managing Partnership. The General Partner may not be removed by the Limited Partners with or without cause, except with the consent of such Series, and no Limited Partner or other the General Partner shall have any management power over the business and affairs of (or authority to bind) such SeriesPartner. In addition to the powers now or hereafter granted a general partner General Partner of a limited partnership under applicable law or that which are granted to a Managing the General Partner under any other provision of this Agreement, each Managing the General Partner, subject to any approval required by the other provisions hereof including Section 7.4, Section 7.5 or any other provision of this Agreement7.3, shall have full power and authority to do all things and on such terms as it determines to be deemed necessary or appropriate desirable by it to conduct the business of the Partnership generally or the applicable Series, as the case may bePartnership, to exercise all powers set forth in Section 2.5 3.2 hereof and to effectuate the purposes set forth in Section 2.43.1 hereof, including the followingincluding, without limitation:
(i1) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money to permit the Partnership to make distributions to its Partners in such amounts as will permit the General Partner (so long as the General Partner has determined to qualify as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Section 4981 of the Code) and to make distributions to its stockholders sufficient to permit the General Partner to maintain REIT status), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtedness (including the securing of same by mortgage, deed of trust or other lien or encumbrance on all or any of the Partnership's assets) and the incurring of any other obligationsobligations it deems necessary for the conduct of the activities of the Partnership;
(ii2) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership and each Series (other than in connection with the matters set forth in Section 9.3)Partnership;
(iii3) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the applicable Series Partnership or the merger or other combination of the Partnership with or into another Personentity;
(iv4) the mortgage, pledge, encumbrance or hypothecation of all or any assets of the Partnership, and the use of the assets of the applicable Series Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms it sees fit, including, without limitation, the financing of the conduct or the operations of the General Partner or the Partnership, the lending of funds to other Persons (including, without limitation, the General Partner (if necessary to permit the financing or capitalization of a subsidiary of the General Partner or the Partnership) or any Subsidiaries of the Partnership) and the repayment of obligations of the Partnership, any of its Subsidiaries and any other Person in which it has an equity investment;
(v5) the negotiation, execution execution, and performance of any contracts, leases, conveyances or other instruments on behalf that the General Partner considers useful or necessary to the conduct of the Partnership generally Partnership's operations or the applicable Seriesimplementation of the General Partner's powers under this Agreement;
(vi6) the distribution of Partnership cash or property of the applicable Seriesother Partnership assets in accordance with this Agreement;
(vii7) the selection and dismissal of employees of the Partnership (including, without limitation, employees having titles such as "president," "vice president," "secretary" and "treasurer"), and agents, outside attorneys, accountants, consultants and contractors of the Partnership, the determination of their compensation and other terms of employment or hiring, including waivers of conflicts of interest and the payment of their expenses and compensation out of the Partnership's assets;
(8) the maintenance of separate or joint such insurance policies for the benefit of the Partnership, any Series, any Partnership and the Partners as it deems necessary or any Indemniteesappropriate;
(viii9) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies ventures or other relationships subject that it deems desirable (including, without limitation, the acquisition of interests in, and the contributions of property to any Subsidiary and any other Person in which it has an equity investment from time to time); PROVIDED THAT, as long as the restrictions set forth General Partner has determined to continue to qualify as a REIT, the Partnership may not engage in Section 2.4any such formation, acquisition or contribution that would cause the General Partner to fail to qualify as a REIT;
(ix10) the control of any matters affecting the rights and obligations of the Partnership or the applicable SeriesPartnership, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigation, arbitration or mediation litigation and the incurring of legal expense and the settlement of claims and litigation; and
(x) , and the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(11) the undertaking of any action in connection with the Partnership's direct or indirect investment in any Person (including, without limitation, contributing or loaning Partnership funds to, incurring indebtedness on behalf of, or guarantying the obligations of any such Persons);
(12) subject to the other provisions in this Agreement, the determination of the fair market value of any Partnership property distributed in kind using such reasonable method of valuation as it may adopt, PROVIDED THAT such methods are otherwise consistent with requirements of this Agreement;
(13) the management, operation, leasing, landscaping, repair, alteration, demolition or improvement of any real property or improvements owned by the Partnership or any Subsidiary of the Partnership or any Person in which the Partnership has made a direct or indirect equity investment;
(14) holding, managing, investing and reinvesting cash and other assets of the Partnership;
(15) the collection and receipt of revenues and income of the Partnership;
(16) the exercise, directly or indirectly through any attorney-in-fact acting under a general or limited power of attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(17) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(18) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest pursuant to contractual or other arrangements with such Person; and
(19) the making, execution and delivery of any and all deeds, leases, notes, deeds to secure debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate in the judgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement.
B. Each of the Limited Partners agrees that the General Partner is authorized to execute, deliver and perform the above-mentioned agreements and transactions on behalf of the Partnership without any further act, approval or vote of the partners, notwithstanding any other provisions of this Agreement (except as provided in Section 7.3), the Act or any applicable law, rule or regulation. The execution, delivery or performance by the General Partner or the Partnership of any agreement authorized or permitted under this Agreement shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement or of any duty stated or implied by law or equity.
C. At all times from and after the date hereof, the General Partner may cause the Partnership to obtain and maintain (i) casualty, liability and other insurance on the properties of the Partnership and (ii) liability insurance for the Indemnitees hereunder.
D. At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain working capital and other reserves in such amounts as the General Partner, in it sole and absolute discretion, deems appropriate and reasonable from time to time.
E. Other than as set forth in the following sentence, and subject to Section 11.2.D, in exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner (including the General Partner) of any action taken by it. The General Partner, on behalf of the Partnership, shall use commercially reasonable efforts to cooperate with the Limited Partners to minimize any taxes payable in connection with any repayment, refinancing, replacement or restructuring of Debt, or any sale, exchange or any other disposition of assets, of the Partnership, including, without limitation, amending this Agreement to provide obligations on the part of any affected Partner to restore deficit balances in their Capital Accounts as of the time of liquidation of the Partnership and to maintain a corresponding level of recourse debt to match such obligations or maintaining a level of non-recourse debt that can be allocated to, and included in the Partnership tax basis of, such Partners, pursuant to the regulations under Section 752 of the Code. The General Partner and the Partnership shall not have liability to a Limited Partner under any circumstances as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner pursuant to its authority under this Agreement.
F. Except as otherwise provided herein, to the extent the duties of the General Partner require expenditures of funds to be paid to third parties, the General Partner shall not have any obligations hereunder except to the extent that Partnership funds are reasonably available to it for the performance of such duties, and nothing herein contained shall be deemed to authorize or require the General Partner, in its capacity as such, to expend its individual funds for payment to third parties or to undertake any individual liability or obligation on behalf of the Partnership.
Appears in 1 contract
Sources: Limited Partnership Agreement (Grove Real Estate Asset Trust)
Management. (a) The Managing General Partner of the Partnership generally shall conduct, direct and manage all activities of the Partnership generally, and the Managing General Partner of each Series shall conduct, direct and manage all activities of the Series for which it serves as Managing General Partner. Except as otherwise expressly provided in this Agreement, (i) all management powers over the business and affairs of the Partnership generally are and shall be exclusively vested in the Managing General Partner of the Partnership generallyPartner, and no Limited Partner or other General Partner shall have any right to participate in or exercise control or management power over the business and affairs of (or authority to bind) the Partnership generally and (ii) all management powers over the business and affairs of each Series shall be exclusively vested in the Managing Partnership. The General Partner may be removed by the Limited Partners with or without cause with the approval of such Series, and no the Limited Partner or other General Partner shall have any management power over Partners holding a majority of the business and affairs of (or authority to bind) such SeriesPercentage Interests. In addition to the powers now or hereafter granted to a general partner of a limited partnership under applicable law or that which are granted to a Managing the General Partner under any other provision of this Agreement, each Managing the General Partner, subject to any approval required by Section 7.4, Section 7.5 or any other provision the terms of this Agreement, shall have full power and authority to do all things and on such terms as deemed necessary, desirable or convenient by it determines to be necessary or appropriate to conduct the business of the Partnership generally or the applicable Series, as the case may bePartnership, to exercise all powers set forth in Section 2.5 3.2 and to effectuate the purposes set forth in Section 2.43.1. Notwithstanding the foregoing, including except as expressly contemplated by the followingManagement Agreement or is delegated to the Investment Committee pursuant to Section 7.12, the General Partner shall not do any of the following without the prior approval of the Board of Directors:
(i1) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money to permit the Partnership to make distributions to its Partners in such amounts as will permit the Company (so long as the Company desires to maintain its qualification as a REIT) to avoid the payment of any U.S. federal income tax (including, for this purpose, any excise tax pursuant to Section 4981 of the Code) and to make distributions to its shareholders in amounts sufficient to permit the Company to maintain its REIT status), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences evidence of indebtedness and (including the incurring securing of the same by deed, mortgage, deed of trust or other lien or encumbrance on the Partnership’s assets or any other obligationsassets of its Subsidiaries);
(ii2) the making of tax, regulatory and other filingsfilings or elections, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership and each Series (other than in connection with the matters set forth in Section 9.3)Partnership;
(iii3) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the applicable Series Partnership (including the exercise or grant of any conversion, option, privilege, or subscription right or other right available in connection with any assets at any time held by the Partnership) or the merger or other combination of the Partnership with or into another Personentity (all of the foregoing subject to any prior approval only to the extent required by Section 7.3);
(iv4) the mortgage, pledge, encumbrance or hypothecation of any assets of the Partnership, the use of the assets of the applicable Series Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms that it sees fit, including, without limitation, the financing of the conduct of the operations of the Partnership, the Company or any of the Partnership’s or the Company’s Subsidiaries, the lending of funds to other Persons (including, without limitation, the Subsidiaries of the Partnership and/or the Company) and the repayment of obligations of the Partnership and its Subsidiaries and any other Person in which it has an equity investment, and the making of capital contributions to its Subsidiaries;
(v5) the negotiation, execution execution, delivery and performance of any contractscontracts (including leases), conveyances or other instruments on behalf that the General Partner considers useful or necessary or convenient to the conduct of the Partnership generally Partnership’s operations or the applicable Seriesimplementation of the General Partner’s powers under this Agreement, including, without limitation, contracting with consultants, accountants, legal counsel, other professional advisors and other agents and the payment of their expenses and compensation out of the Partnership’s assets;
(vi6) the distribution of Partnership cash or property of the applicable Seriesother Partnership assets in accordance with this Agreement;
(vii7) holding, managing, investing and reinvesting cash and other assets of the Partnership;
(8) the amending, restating and/or supplementing this Agreement, any side letter contemplated by Section 15.11, or the Certificate;
(9) the maintenance establishment of separate one or joint insurance policies for the benefit more divisions of the Partnership, any Seriesthe selection and dismissal of employees of the Partnership (including, any Partners without limitation, employees who may be designated as officers with titles such as “president,” “vice president,” “secretary” and “treasurer” of the Partnership), and agents, outside attorneys, accountants, consultants and contractors of the Partnership, and the determination of their compensation and other terms of employment or any Indemniteeshiring;
(viii10) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventureslimited liability companies, real estate investment trusts, corporations, limited liability companies entities that are treated as REITs, “taxable REIT subsidiaries” or as foreign corporations for federal income tax purposes, Joint Ventures or other relationships subject that it deems desirable (including, without limitation, the acquisition of interests in, and the contributions of property or the making of loans to, its or the Company’s Subsidiaries and any other Person in which it has an equity investment from time to time or the restrictions set forth incurrence of indebtedness on behalf of such Persons or the guarantee of obligations of such Persons and the making of any tax, regulatory or other filing or election with respect to any of the foregoing Persons); provided, that as long as the Company has determined to continue to qualify as a REIT, the Partnership may not engage in Section 2.4any such formation, acquisition or contribution that would cause the Company to fail to qualify as a REIT;
(ix11) the control of any matters affecting the rights and obligations of the Partnership or the applicable SeriesPartnership, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigationsettlement, compromise, submission to arbitration or mediation any other form of dispute resolution, or abandonment of, any claim, cause of action, liability, Debt or damages, due or owing to or from the Partnership, the commencement or defense of suits, legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, and the incurring representation of the Partnership in all suits or legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, the incurrence of legal expense expense, and the settlement of claims and litigation; and
(x) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(12) the undertaking of any action in connection with the Partnership’s direct or indirect investment in any Subsidiary or any other Person (including, without limitation, the contribution or loan of funds by the Partnership to such Persons);
(13) the determination of the fair market value of any Partnership Property distributed in kind using such reasonable method of valuation as the General Partner may adopt;
(14) the enforcement of any rights against any Partner pursuant to representations, warranties, covenants and indemnities relating to such Partner’s contribution of property or assets to the Partnership;
(15) the exercise, directly or indirectly, through any attorney-in-fact acting under a general or limited power of attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(16) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(17) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest pursuant to contractual or other arrangements with such Person;
(18) the making, execution, delivery and performance of any and all deeds, leases, notes, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary, appropriate or convenient, in the judgment of the General Partner, for the accomplishment of any of the powers of the General Partner enumerated in this Agreement;
(19) the issuance of additional Partnership Units and other partnership interests to any Partners or other Persons.
(b) Subject to the any rights of the Partners and any direction or approval of the Board of Directors set forth in this Agreement, including, but not limited to, Section 7.1(a), each of the Limited Partners agrees that the General Partner is authorized to execute, deliver and perform the above-mentioned agreements and transactions on behalf of the Partnership, and otherwise to exercise any power of the General Partner under this Agreement or the Act, without any further act, approval or vote of the Partners or any other Person, notwithstanding any other provision of this Agreement (except as provided in Section 7.3), the Act or any applicable law, rule or regulation, to the fullest extent permitted under the Act or other applicable law, rule or regulation. The execution, delivery or performance by the General Partner or the Partnership of any agreement authorized or permitted under this Agreement shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement or of any duty stated or implied by law or equity.
(c) At all times from and after the date hereof, the General Partner, at the direction of the Board of Directors, may cause the Partnership to establish and maintain working capital accounts and other cash or similar balances in such amounts as the General Partner, after consultation with the Board of Directors, deems appropriate and reasonable from time to time.
(d) At all times from and after the date hereof, the General Partner may cause, and if directed by the Board of Directors, shall cause, the Partnership to obtain and maintain (i) casualty, liability and other insurance on the Properties and (ii) liability insurance for the Indemnitees hereunder.
(e) In exercising its authority under this Agreement, the General Partner (solely to the extent directed by the Board of Directors, and in all cases in accordance with such directions from the Board of Directors) may take into account the tax consequences to any Partner of any action taken (or not taken) by it. The General Partner, the Board of Directors, and the Partnership shall not be liable to a Limited Partner under any circumstances as a result of an income tax or other tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner taken pursuant to its authority under this Agreement or at the direction of the Board of Directors.
Appears in 1 contract
Sources: Limited Partnership Agreement (Vinebrook Homes Trust, Inc.)
Management. (a) The Managing General Partner of the Partnership generally shall conduct, direct and manage all activities of the Partnership generally, and the Managing General Partner of each Series shall conduct, direct and manage all activities of the Series for which it serves as Managing General Partner. 7.1.1 Except as otherwise expressly provided in this Agreement, (i) all management powers over the business and affairs of the Partnership generally are and shall be exclusively vested in the Managing General Partner of the Partnership generallyPartner, and no Limited Partner or other General Partner shall have any right to participate in or exercise control or management power over the business and affairs of (or authority to bind) the Partnership generally and (ii) all management powers over the business and affairs of each Series shall be exclusively vested in the Managing Partnership. The General Partner may not be removed by the Partners with or without cause, except with the consent of such Series, and no Limited Partner or other the General Partner shall have any management power over the business and affairs of (or authority to bind) such SeriesPartner. In addition to the powers now or hereafter granted to a general partner of a limited partnership under applicable law or that are granted to a Managing the General Partner under any other provision of this Agreement, each Managing the General Partner, subject to any approval required by Section 7.4, Section 7.5 or any the other provision of this Agreementprovisions hereof, shall have full power and authority to do all things and on such terms as it determines to be deemed necessary or appropriate desirable by it to conduct the business of the Partnership generally or the applicable Series, as the case may bePartnership, to exercise all powers set forth in Section 2.5 3.2 hereof and to effectuate the purposes set forth in Section 2.43.1 hereof, including the followingincluding, without limitation:
(ia) the making of any expenditures, the lending or borrowing of moneymoney (including making prepayments on loans and borrowing money or selling assets to permit the Partnership to make distributions to its Partners in such amounts as will permit the General Partner (so long as the General Partner desires to maintain or restore its status as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Code Section 4981) and to make distributions sufficient to permit the General Partner to maintain or restore REIT status or otherwise to satisfy the REIT Requirements), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtedness (including the securing of same by deed to secure debt, mortgage, deed of trust or other lien or encumbrance on the Partnership’s assets) and the incurring of any other obligationsobligations that it deems necessary for the conduct of the activities of the Partnership;
(iib) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership and each Series (other than in connection with the matters set forth in Section 9.3)Partnership;
(iiic) the acquisition, dispositionsale, mortgagelease, pledgetransfer, encumbranceexchange or other disposition of any, hypothecation all or exchange of any or substantially all of the assets of the applicable Series Partnership (including, but not limited to, the exercise or grant of any conversion, option, privilege or subscription right or any other right available in connection with any assets at any time held by the merger Partnership) or, subject to Section 8.6, the merger, consolidation, reorganization or other combination of the Partnership with or into another Personentity;
(ivd) the mortgage, pledge, encumbrance or hypothecation of any assets of the Partnership, the use of the assets of the applicable Series Partnership (including cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms that it sees fit, including the financing of the operations and activities of the General Partner, the Partnership or any of the Partnership’s Subsidiaries, the lending of funds to other Persons (including the Partnership’s Subsidiaries) and the repayment of obligations of the Partnership, its Subsidiaries and any other Person in which the Partnership has an equity investment, and the making of capital contributions to and equity investments in the Partnership’s Subsidiaries;
(ve) the management, operation, leasing, landscaping, repair, alteration, demolition, replacement or improvement of any Property, including any Contributed Property, or other asset of the Partnership or any Subsidiary, whether pursuant to a Services Agreement or otherwise;
(f) the negotiation, execution and performance of any contracts, leases, conveyances or other instruments on behalf that the General Partner considers useful or necessary to the conduct of the Partnership generally Partnership’s operations or the applicable Series;implementation of the General Partner’s powers under this Agreement, including contracting with contractors, developers, consultants, accountants, legal counsel, the Advisor’s other professional advisors and other agents and the payment of their expenses and compensation out of the Partnership’s assets; provided, however, that the Advisory Agreement must contain a provision (the “Voting Direction Provision”) that requires the Advisor to vote its shares of Proportionate Voting Preferred Stock in proportion to the votes (the “LP Direction Votes”) that the Advisor receives from the holders of Partnership Units (other than the General Partner), that are issued pursuant to the Master Agreement or pursuant to any option delivered pursuant thereto or in connection with the consummation of the transactions contemplated thereby. The Advisor shall not cast any votes with respect to the share of Proportionate Voting Preferred Stock unless it receives LP Direction Votes with respect thereto.
(vig) the distribution of Partnership cash or property other Partnership assets in accordance with this Agreement, the holding, management, investment and reinvestment of cash and other assets of the applicable SeriesPartnership, and the collection and receipt of revenues, rents and income of the Partnership;
(viih) the maintenance of separate or joint such insurance policies for the benefit of the PartnershipPartnership and the Partners as it deems necessary or appropriate, any Seriesincluding (i) casualty, any Partners or any Indemniteesliability and other insurance on the Properties and (ii) liability insurance for the Indemnitees hereunder;
(viiii) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies companies, joint ventures or other relationships subject that it deems desirable (including the acquisition of interests in, and the contributions of property to, any Subsidiary and any other Person in which it has an equity investment from time to the restrictions set forth in Section 2.4time);
(ixj) the control of any matters affecting the rights and obligations of the Partnership or the applicable SeriesPartnership, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigationsettlement, compromise, submission to arbitration or mediation any other form of dispute resolution, or abandonment, of any claim, cause of action, liability, debt or damages, due or owing to or from the Partnership, the commencement or defense of suits, legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, and the representation of the Partnership in all suits or legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, the incurring of legal expense expense, and the settlement of claims and litigation; and
(x) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(k) the undertaking of any action in connection with the Partnership’s direct or indirect investment in any Subsidiary or any other Person (including the contribution of Property or contribution or loan of funds by the Partnership to such Persons);
(l) except as otherwise specifically set forth in this Agreement, the determination of the fair market value of any Partnership property distributed in kind using such method of valuation as it may reasonably adopt as long as such method is otherwise consistent with the requirements of this Agreement;
(m) the enforcement of any rights against any Partner pursuant to representations, warranties, covenants and indemnities relating to such Partner’s contribution of property or assets to the Partnership;
(n) the exercise, directly or indirectly, through any attorney-in-fact acting under a general or limited power of attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(o) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(p) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest, pursuant to contractual or other arrangements with such Person;
(q) the making, execution and delivery of any and all deeds, leases, notes, deeds to secure debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate in the judgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement;
(r) the issuance of additional Partnership Units, as appropriate and in the General Partner’s sole and absolute discretion, in connection with Capital Contributions by Additional Limited Partners and additional Capital Contributions by Partners pursuant to Section 4 hereof;
(s) the selection and dismissal of Partnership Employees (including employees having titles or offices such as president, vice president, secretary and treasurer), and agents, outside attorneys, accountants, consultants and contractors of the Partnership or the General Partner, the determination of their compensation and other terms of employment or hiring and the delegation to any such Partnership Employee the authority to conduct the business of the Partnership in accordance with the terms of this Agreement; and
(t) an election to dissolve the Partnership pursuant to Section 13.1.2 hereof.
7.1.2 Except as provided in Section 14.2 hereof, the General Partner is authorized to execute, deliver and perform the above-mentioned agreements and transactions on behalf of the Partnership without any further act, approval or vote of the Partners, notwithstanding any other provision of this Agreement, the Act or any applicable law, rule or regulation. The execution, delivery or performance by the General Partner or the Partnership of any agreement authorized or permitted under this Agreement shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement or of any duty stated or implied by law or equity.
7.1.3 At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain working capital and other reserves in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
7.1.4 In exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner (including the General Partner) of any action taken by it. The General Partner and the Partnership shall not have liability to a Limited Partner under any circumstances as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner pursuant to its authority under this Agreement.
7.1.5 The General Partner may not take any action in contravention of this Agreement, including, without limitation:
(a) taking any action that would make it impossible to carry on the ordinary business of the Partnership, except as otherwise provided in this Agreement;
(b) possessing Property, or assigning any rights in specific Property, for other than a Partnership purpose except as otherwise provided in this Agreement, including Section 7.9;
(c) admitting a Person as a Partner, except as otherwise provided in this Agreement;
(d) performing any act that would subject a Limited Partner to liability as a general partner in any jurisdiction or any other liability except as otherwise provided in this Agreement or under the Act; or
(e) entering into any contract, mortgage, loan or other agreement that prohibits or restricts the ability of (a) the General Partner or the Partnership from satisfying its obligations under Section 8.5 hereof in full or (b) a Limited Partner from exercising its rights under Section 8.5 hereof to effect a Redemption in full, except, in either case, with the written consent of such Limited Partner adversely affected by the prohibition or restriction.
Appears in 1 contract
Sources: Limited Partnership Agreement (Arizona Land Income Corp)
Management. (a) The Managing General Partner of the Partnership generally shall conduct, direct and manage all activities of the Partnership generally, and the Managing General Partner of each Series shall conduct, direct and manage all activities of the Series for which it serves as Managing General Partner. A. Except as otherwise expressly provided in this Agreement, (i) all management powers over the business and affairs of the Partnership generally are and shall be exclusively vested in the Managing General Partner of the Partnership generallyPartner, and no Limited Partner or other General Partner shall have any right to participate in or exercise control or management power over the business and affairs of (or authority to bind) the Partnership generally and (ii) all management powers over the business and affairs of each Series shall be exclusively vested in the Managing General Partner of such Series, and no Limited Partner or other General Partner shall have any management power over the business and affairs of (or authority to bind) such SeriesPartnership. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or that which are granted to a Managing the General Partner under any other provision of this Agreement, each Managing the General Partner, subject to any approval required by Section 7.4, Section 7.5 or any other provision of this Agreement7.3 hereof, shall have full power and authority to do all things and on such terms as it determines to be deemed necessary or appropriate desirable by it to conduct the business of the Partnership generally or the applicable Series, as the case may bePartnership, to exercise all powers set forth in Section 2.5 3.2 hereof and to effectuate the purposes set forth in Section 2.43.1 hereof, including the followingincluding, without limitation:
(i1) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money to permit the Partnership to make distributions to its Partners in such amounts as will permit IAC Capital Trust (so long as IAC Capital Trust qualifies as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Section 4981 of the Code) and to make distributions to its stockholders sufficient to permit IAC Capital Trust to maintain REIT status), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtedness (including the securing of same by deed to secure debt, mortgage, deed of trust or other lien or encumbrance on the Partnership's assets) and the incurring of any other obligationsobligations it deems necessary for the conduct of the activities of the Partnership;
(ii2) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership and each Series (other than in connection with the matters set forth in Section 9.3)Partnership;
(iii3) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the applicable Series or the merger or other combination of the Partnership with or into another Person;
(iv) the use of the assets of the applicable Series (including cash on hand) for any purpose consistent with the terms of this Agreement;
(v) the negotiation, execution and performance exercise or grant of any contractsconversion, conveyances option, privilege, or other instruments on behalf of the Partnership generally or the applicable Series;
(vi) the distribution of cash or property of the applicable Series;
(vii) the maintenance of separate or joint insurance policies for the benefit of the Partnership, any Series, any Partners subscription right or any Indemnitees;
(viii) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies or other relationships subject to the restrictions set forth right available in Section 2.4;
(ix) the control of any matters affecting the rights and obligations of the Partnership or the applicable Series, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigation, arbitration or mediation and the incurring of legal expense and the settlement of claims and litigation; and
(x) the indemnification of any Person against liabilities and contingencies to the extent permitted by law.connection with
Appears in 1 contract
Management. (a) The Managing General Partner of the Partnership generally shall conduct, direct and manage all activities of the Partnership generally, and the Managing General Partner of each Series shall conduct, direct and manage all activities of the Series for which it serves as Managing General Partner. A. Except as otherwise expressly provided in this Agreement, (i) all management powers over the business and affairs of the Partnership generally are and shall be exclusively vested in the Managing General Partner of the Partnership generally, and no Partner. The Limited Partner or other General Partner Partners shall not have any right to participate in or exercise control or management power over the business and affairs of (or authority to bind) the Partnership generally and (ii) all management powers over the business and affairs of each Series shall be exclusively vested in the Managing Partnership. The General Partner of such Series, and no may not be removed by the Limited Partner or other General Partner shall have any management power over the business and affairs of (or authority to bind) such SeriesPartners. In addition to the powers now or hereafter granted to a general partner of a limited partnership under applicable law or that which are granted to a Managing the General Partner under any other provision of this Agreement, each Managing the General Partner, subject to any approval required by Section 7.4, Section 7.5 or any other provision of this Agreement7.3 hereof, shall have full power and authority to do all things and on such terms as it determines to be deemed necessary or appropriate desirable by it to conduct the business of the Partnership generally or the applicable Series, as the case may bePartnership, to exercise all powers set forth in Section 2.5 3.2 hereof and to effectuate the purposes set forth in Section 2.43.1 hereof, including, without limitation:
(1) the execution, acknowledgement, verification, delivery, filing and recording, for and in the name of the Partnership, and, to the extent necessary, the General Partner and the Initial Limited Partner, of any and all documents and instruments, including the following:LCIF Merger Agreement and the performance of any and all acts required by applicable law or which GP-1 deems necessary or advisable in order to give effect to the consummation of the LCIF Merger;
(i2) the making of any expenditures, the lending lending, borrowing or guarantee of money (including, without limitation, making prepayments on loans and borrowing money to permit the Partnership to make distributions to its Partners in such amounts as will permit LXP (so long as LXP qualifies as a REIT) in general, including, without limitation, to avoid the payment of moneyany federal income tax (including, for this purpose, any excise tax pursuant to Section 4981 of the Code), to make distributions to its stockholders sufficient to permit LXP to maintain REIT status), the incurrence of inter-company indebtedness and the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtedness and the incurring of any other obligations;
(ii) the making of regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership and each Series (other than in connection with the matters set forth in Section 9.3);
(iii3) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the applicable Series Partnership or the merger or other combination of the Partnership with or into another Personentity (all of the foregoing subject to any prior approval only to the extent required by Section 7.3 hereof);
(iv4) the use of the assets of the applicable Series (including cash on hand) Partnership for any purpose consistent with the terms of this AgreementAgreement and on any terms the General Partner sees fit, and the making of capital contributions or loans to its Subsidiaries;
(v5) the management, operation, leasing, landscaping, repair, alteration, demolition or improvement of any real property or improvements owned by the Partnership or any Subsidiary of the Partnership;
(6) the negotiation, execution and performance of any contracts, conveyances or other instruments on behalf that the General Partner considers useful or necessary to the conduct of the Partnership generally Partnership's operations or the applicable Seriesimplementation of the General Partner's powers under this Agreement;
(vi7) the distribution of Partnership cash or property of the applicable Seriesother Partnership assets in accordance with this Agreement;
(vii) the maintenance of separate or joint insurance policies for the benefit of the Partnership, any Series, any Partners or any Indemnitees;
(viii) 8) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies or other relationships subject to joint ventures that the restrictions set forth in Section 2.4General Partner deems desirable;
(ix9) the control undertaking of any matters affecting action in connection with the rights and obligations Partnership's direct or indirect investment in its Subsidiaries or any other Person (including, without limitation, the contribution or loan of funds by the Partnership to such Persons);
(10) the determination of the fair market value of any Partnership property distributed in kind using such reasonable method of valuation as the General Partner may adopt;
(11) the exercise, directly or the applicable Seriesindirectly, through any attorney-in-fact acting under a general or limited power of attorney, of any right, including the bringing and defending of actions at law right to vote, appurtenant to any asset or in equity and otherwise engaging in investment held by the conduct of litigation, arbitration or mediation and the incurring of legal expense and the settlement of claims and litigationPartnership; and
(x12) the indemnification making, execution and delivery of any Person against liabilities and contingencies all deeds, leases, notes, deeds to secure debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate in the judgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement.
B. At all times from and after the date hereof, the General Partner may cause the Partnership to obtain and maintain (i) casualty, liability and other insurance on the properties of the Partnership and (ii) liability insurance for the Indemnitees hereunder.
C. At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain any and all reserves, working capital accounts and other cash or similar balances in such amounts as the General Partner, in its sole discretion, deems appropriate and reasonable from time to time.
D. In exercising its authority under this Agreement, the General Partner may, but shall not be obligated to, take into account the tax consequences to any Partner of any action taken by it. The General Partner and the Partnership shall not, however, have liability to an Additional Limited Partner under any circumstances as a result of an income tax liability incurred by such Additional Limited Partner as a result of an action (or inaction) by the General Partner pursuant to its authority under this Agreement.
E. Notwithstanding anything to the extent permitted contrary that may be contained herein, the General Partner may allocate Shared Debt among LXP and the Partnership based on their gross rental revenues as ultimately determined by lawLXP. Nothing herein shall impact any joint and several liability or any guaranty, as applicable, with respect to such Shared Debt.
Appears in 1 contract
Management. (a) The Managing General Partner of the Partnership generally shall conduct, direct and manage all activities of the Partnership generally, and the Managing General Partner of each Series shall conduct, direct and manage all activities of the Series for which it serves as Managing General PartnerPartnership. Except as otherwise expressly provided in this Agreement, (i) all management powers over the business and affairs of the Partnership generally shall be exclusively vested in the Managing General Partner of the Partnership generallyPartner, and no Limited Partner or other General Partner shall have any management power over the business and affairs of (or authority to bind) the Partnership generally and (ii) all management powers over the business and affairs of each Series shall be exclusively vested in the Managing General Partner of such Series, and no Limited Partner or other General Partner shall have any management power over the business and affairs of (or authority to bind) such SeriesPartnership. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or that are granted to a the Managing General Partner under any other provision of this Agreement, each the Managing General Partner, subject to any approval required by Section 7.4, Section 7.5 or any other provision of this Agreement7.3, shall have full power and authority to do all things and on such terms as it determines determines, in its sole discretion, to be necessary or appropriate to conduct the business of the Partnership generally or the applicable Series, as the case may bePartnership, to exercise all powers set forth in Section 2.5 and to effectuate the purposes set forth in Section 2.4, including the following:
(i) the making of any expenditures, the lending or borrowing of money, the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtedness, including indebtedness that is convertible or exchangeable into Partnership Securities or options, rights, warrants or appreciation rights relating to Partnership Securities, and the incurring of any other obligations;
(ii) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership and each Series (other than in connection with the matters set forth in Section 9.3)Partnership;
(iii) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the applicable Series Partnership or the merger or other combination of the Partnership with or into another PersonPerson (the matters described in this clause (iii) being subject, however, to any prior approval that may be required by Section 7.3, Article XIV and Article XVI);
(iv) the use of the assets of the applicable Series Partnership (including cash on hand) for any purpose consistent with the terms of this Agreement, including the financing of the conduct of the operations of the Partnership Group; subject to Section 7.6(a), the lending of funds to other Persons; the repayment or guarantee of obligations of any Group Member and the making of Capital Contributions to any Group Member;
(v) the negotiation, execution and performance of any contracts, conveyances or other instruments on behalf (including instruments that limit the liability of the Partnership generally under contractual arrangements to all or particular assets of the applicable SeriesPartnership, with the other party to the contract to have no recourse against the Managing Partner or its assets other than their interest in the Partnership, even if same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case);
(vi) the distribution of cash or property of the applicable SeriesPartnership cash;
(vii) the selection and dismissal of employees (including employees having such as titles as the Managing Partner may determine in its sole discretion) and agents, outside attorneys, accountants, consultants and contractors and the determination of their compensation and other terms of employment or hiring;
(viii) the maintenance of separate or joint insurance policies for the benefit of the PartnershipPartnership Group, any Series, any the Partners or any and Indemnitees;
(viiiix) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies companies, corporations or other relationships (including the acquisition of interests in, and the contributions of property to, the Partnership’s Subsidiaries from time to time) subject to the restrictions set forth in Section 2.4;
(ixx) the control of any matters affecting the rights and obligations of the Partnership or the applicable SeriesPartnership, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigation, arbitration or mediation and the incurring of legal expense and the settlement of claims and litigation; and;
(xxi) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.7);
(xiii) the purchase, sale or other acquisition or disposition of Partnership Securities or options, rights, warrants or appreciation rights relating to Partnership Securities;
(xiv) the undertaking of any action in connection with the Partnership’s participation in the management of the Partnership Group through its directors, officers or employees or the Partnership’s direct or indirect ownership of the Group Members, including all things described in or contemplated by the Registration Statement and the agreements described in or filed as exhibits to the Registration Statement; and
(xv) cause to be registered for resale under the Securities Act and applicable state or non-U.S. securities laws, any securities of, or any securities convertible or exchangeable into securities of, the Partnership held by any Person, including the Managing Partner or any Affiliate of the Managing Partner.
(b) In exercising its authority under this Agreement, the Managing Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner (including the Managing Partner) of any action taken (or not taken) by it. The Managing Partner and the Partnership shall not have any liability to a Limited Partner for monetary damages, equitable relief or otherwise for losses sustained, liabilities incurred or benefits not derived by such Limited Partner in connection with such decisions so long as the Managing Partner has acted pursuant to its authority under this Agreement.
(c) Notwithstanding any other provision of this Agreement, the Delaware Limited Partnership Act or any applicable law, rule or regulation, each of the Partners and each other Person who may acquire an interest in Partnership Securities hereby (i) approves, ratifies and confirms the execution, delivery and performance by the parties thereto of the Purchase and Sale Agreement, the Investment Agreement, the Exchange Agreement, the Tax Receivable Agreement, the Group Partnership Agreements and the other agreements described in or filed as exhibits to the Registration Statement that are related to the transactions contemplated by the Registration Statement; (ii) agrees that the Managing Partner (on its own or through its delegation of such authority to any officer of the Partnership) is authorized to execute, deliver and perform the agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership, in each case in such form and with such terms as it in its sole discretion shall determine, without any further act, approval or vote of the Partners or the other Persons who may acquire an interest in Partnership Securities; and (iii) agrees that the execution, delivery or performance by the Managing Partner, any Group Member or any Affiliate of any of them, of this Agreement or any agreement authorized or permitted under this Agreement (including the exercise by the Managing Partner or any Affiliate of the Managing Partner of the rights accorded pursuant to Article XV), shall not constitute a breach by the Managing Partner of any duty that the Managing Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement (or any other agreements) or of any duty existing at law, in equity or otherwise.
Appears in 1 contract
Management. (a) The Managing General Partner of the Partnership generally shall conduct, direct and manage all activities of the Partnership generally, and the Managing General Partner of each Series shall conduct, direct and manage all activities of the Series for which it serves as Managing General Partner. A. Except as otherwise expressly provided in this Agreement, (i) all management powers over the business and affairs of the Partnership generally are and shall be exclusively vested in the Managing General Partner of the Partnership generallyPartner, and no Limited Partner or other General Partner shall have any right to participate in or exercise control or management power over the business and affairs of (or authority to bind) the Partnership generally and (ii) all management powers over the business and affairs of each Series shall be exclusively vested in the Managing Partnership. The General Partner may not be removed by the Partners with or without cause, except with the consent of such Series, and no Limited Partner or other the General Partner shall have any management power over the business and affairs of (or authority to bind) such SeriesPartner. In addition to the powers now or hereafter granted to a general partner of a limited partnership under applicable law or that are granted to a Managing the General Partner under any other provision of this Agreement, each Managing the General Partner, subject to any approval required by the other provisions hereof including Section 7.4, Section 7.5 or any other provision of this Agreement7.3, shall have full power and authority to do all things and on such terms as it determines to be deemed necessary or appropriate desirable by it to conduct the business of the Partnership generally or the applicable Series, as the case may bePartnership, to exercise all powers set forth in Section 2.5 3.2 hereof and to effectuate the purposes set forth in Section 2.43.1 hereof, including the followingincluding, without limitation:
(i) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money or selling assets to permit the Partnership to make distributions to its Partners in such amounts as will permit the General Partner (so long as the General Partner desires to maintain or restore its status as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Code Section 4981) and to make distributions to its stockholders sufficient to permit the General Partner to maintain or restore REIT status or otherwise to satisfy the REIT Requirements), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtedness (including the securing of same by deed to secure debt, mortgage, deed of trust or other lien or encumbrance on the Partnership’s assets) and the incurring of any other obligationsobligations that it deems necessary for the conduct of the activities of the Partnership;
(ii) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership, the registration of any class of securities of the Partnership under the Exchange Act and each Series (other than in connection with the matters set forth in Section 9.3)listing of any debt securities of the Partnership on any exchange;
(iii) the acquisition, dispositionsale, mortgagelease, pledgetransfer, encumbranceexchange or other disposition of any, hypothecation all or exchange of any or substantially all of the assets of the applicable Series Partnership (including, but not limited to, the exercise or grant of any conversion, option, privilege or subscription right or any other right available in connection with any assets at any time held by the Partnership) or the merger merger, consolidation, reorganization or other combination of the Partnership with or into another Personentity;
(iv) the mortgage, pledge, encumbrance or hypothecation of any assets of the Partnership, the use of the assets of the applicable Series Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms that it sees fit, including, without limitation, the financing of the operations and activities of the General Partner, the Partnership or any of the Partnership’s Subsidiaries, the lending of funds to other Persons (including, without limitation, the Partnership’s Subsidiaries) and the repayment of obligations of the Partnership, its Subsidiaries and any other Person in which the Partnership has an equity investment, and the making of capital contributions to and equity investments in the Partnership’s Subsidiaries;
(v) the negotiation, execution and performance of any contracts, leases, conveyances or other instruments on behalf that the General Partner considers useful or necessary to the conduct of the Partnership generally Partnership’s operations or the applicable Seriesimplementation of the General Partner’s powers under this Agreement, including contracting with contractors, developers, consultants, accountants, legal counsel, other professional advisors and other agents and the payment of their expenses and compensation out of the Partnership’s assets;
(vi) the distribution of Partnership cash or property other Partnership assets in accordance with this Agreement, the holding, management, investment and reinvestment of cash and other assets of the applicable SeriesPartnership and the collection and receipt of revenues and income of the Partnership;
(vii) the maintenance of separate or joint such insurance policies for the benefit of the PartnershipPartnership and the Partners as it deems necessary or appropriate, any Seriesincluding, any Partners or any Indemniteeswithout limitation, (i) casualty, liability and other insurance on the Properties and (ii) liability insurance for the Indemnitees hereunder;
(viii) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies companies, joint ventures or other relationships subject that it deems desirable (including, without limitation, the acquisition of interests in, and the contributions of property to, any Subsidiary and any other Person in which it has an equity investment from time to time); provided, however, that, as long as the restrictions set forth General Partner has determined to continue to qualify as a REIT, the General Partner may not engage in any such formation, acquisition or contribution that would cause the General Partner to fail to qualify as a REIT within the meaning of Code Section 2.4856(a);
(ix) the control of any matters affecting the rights and obligations of the Partnership or the applicable SeriesPartnership, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigationsettlement, compromise, submission to arbitration or mediation any other form of dispute resolution, or abandonment, of any claim, cause of action, liability, debt or damages, due or owing to or from the Partnership, the commencement or defense of suits, legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, and the representation of the Partnership in all suits or legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, the incurring of legal expense expense, and the settlement of claims and litigation; and
(x) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(x) the undertaking of any action in connection with the Partnership’s direct or indirect investment in any Subsidiary or any other Person (including, without limitation, the contribution or loan of funds by the Partnership to such Persons);
(xi) except as otherwise specifically set forth in this Agreement, the determination of the fair market value of any Partnership property distributed in-kind using such reasonable method of valuation as it may adopt; provided that such methods are otherwise consistent with the requirements of this Agreement;
(xii) the enforcement of any rights against any Partner pursuant to representations, warranties, covenants and indemnities relating to such Partner’s contribution of property or assets to the Partnership;
(xiii) the exercise, directly or indirectly, through any attorney-in-fact acting under a general or limited power-of-attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(xiv) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(xv) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest, pursuant to contractual or other arrangements with such Person;
(xvi) the making, execution and delivery of any and all deeds, leases, notes, deeds to secure debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate in the judgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement;
(xvii) the issuance of additional Partnership Units, as appropriate and in the General Partner’s sole and absolute discretion, in connection with Capital Contributions by Additional Limited Partners and additional Capital Contributions by Partners pursuant to Article IV hereof;
(xviii) the selection, designation of powers, authority and duties and dismissal of employees or personnel of the Partnership (including, without limitation, employees or personnel having titles such as “president,” “vice president,” “secretary” and “treasurer”) and agents, outside attorneys, accountants, consultants and contractors of the Partnership, the General Partner or the Manager the determination of their compensation and other terms of employment or service or hiring, and the delegation to any such Person the authority to conduct the business of the Partnership in accordance with the terms of this Agreement;
(xix) the distribution of cash to acquire Partnership Units held by a Limited Partner in connection with a Limited Partner’s exercise of its Redemption under Section 8.6 hereof;
(xx) the amendment and restatement of Exhibit A hereto to reflect accurately at all times the Capital Contributions and Percentage Interests of the Partners as the same are adjusted from time to time to the extent necessary to reflect redemptions, Capital Contributions, the issuance of Partnership Units, the admission of any Additional Limited Partner or any Substituted Limited Partner or otherwise, which amendment and restatement, notwithstanding anything in this Agreement to the contrary, shall not be deemed an amendment to this Agreement, as long as the matter or event being reflected in Exhibit A hereto otherwise is authorized by this Agreement;
(xxi) an election to dissolve the Partnership pursuant to Section 13.1.D hereof; and
(xxii) the taking of any action necessary or appropriate to enable the General Partner to qualify as a REIT.
B. Each of the Limited Partners agrees that, except as provided in Section 7.3 hereof, the General Partner is authorized to execute, deliver and perform the above-mentioned agreements and transactions on behalf of the Partnership without any further act, approval or vote of the Partners, notwithstanding any other provision of this Agreement, the Act or any applicable law, rule or regulation, to the full extent permitted under the Act or other applicable law. The execution, delivery or performance by the General Partner or the Partnership of any agreement authorized or permitted under this Agreement shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement or of any duty stated or implied by law or equity.
C. At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain working capital and other reserves in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
D. In exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner (including the General Partner) of any action taken (or not taken) by it. The General Partner and the Partnership shall not have liability to a Limited Partner for monetary damages or otherwise for losses sustained, liabilities incurred or benefits not derived by such Limited Partner in connection with such decisions, provided that the General Partner has acted in good faith and pursuant to its authority under this Agreement.
Appears in 1 contract
Sources: Limited Partnership Agreement (MFResidential Investments, Inc.)
Management. (ai) The Managing General Partner of the Partnership generally shall conduct, direct and manage all activities of the Partnership generally, and the Managing General Partner of each Series shall conduct, direct and manage all activities of the Series for which it serves as Managing General Partner. Except as otherwise expressly provided in this Agreement, (i) all management powers over full, complete and exclusive discretion to manage and control the business and affairs of the Partnership generally are and shall be exclusively vested in the Managing General Partner of the Partnership generallyPartner, and no Limited Partner or other General Partner shall have any right to participate in or exercise control or management power over the business and affairs of (or authority to bind) the Partnership generally and Partnership.
(ii) all management powers over the business and affairs of each Series shall be exclusively vested in the Managing The General Partner of such Series, and no may not be removed by the Limited Partner Partners with or other General Partner shall have any management power over the business and affairs of without cause.
(or authority to bindiii) such Series. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or that which are granted to a Managing the General Partner under any other provision of this Agreement, each Managing the General Partner, subject to any approval required by Section 7.4, Section 7.5 or any other provision of this Agreement7.11, shall have full power 24 = 1 and authority to do all things and on such terms as it determines to be deemed necessary or appropriate desirable by it to conduct the business of the Partnership generally or the applicable Series, as the case may bePartnership, to exercise all powers set forth in Section 2.5 3.2 hereof and to effectuate the purposes set forth in Section 2.43.1 hereof, including the followingincluding, without limitation:
(i1) the making of any expenditures, the lending or borrowing of money, including, without limitation, making prepayments on loans and borrowing money to permit the Partnership to make distributions to its Partners in such amounts as will permit the General Partner (so long as the General Partner qualifies as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Section 4981 of the Code) and to make distributions to its stockholders in amounts sufficient to permit the General Partner to maintain REIT status,
(2) the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, ,
(3) the issuance of evidences evidence of indebtedness and (including the securing of the same by deed, mortgage, deed of trust or other lien or encumbrance on the Partnership’s assets) and
(4) the incurring of any other obligationsobligations it deems necessary for the conduct of the activities of the Partnership, including the payment of all expenses associated with the General Partner;
(iiB) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership and each Series (other than in connection with or the matters set forth in Section 9.3)General Partner;
(iiiC) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any all or substantially all of the assets of the applicable Series Partnership (including the exercise or grant of any conversion, option, privilege, or subscription right or other right available in connection with any assets at any time held by the Partnership) or the merger merger, consolidation or other combination (each a “Business Combination”) of the Partnership with or into another PersonEntity on such terms as the General Partner deems proper, provided that the General Partner shall be required to send to each Limited Partner a notice of such proposed Business Combination no less than 15 days prior to the record date for the vote of the General Partner’s stockholders on such Business Combination, if any;
(ivD) the use of the assets of the applicable Series Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms it sees fit, including, without limitation,
(1) the financing of the conduct of the operations of the General Partner, the Partnership or any of the Partnership’s Subsidiaries,
(2) the lending of funds to other Persons (including, without limitation, the Subsidiaries of the Partnership and/or the General Partner) 25 = 1 and the repayment of obligations of the Partnership and its Subsidiaries and any other Person in which it has an equity investment, and
(3) the making of capital contributions to its Subsidiaries;
(vE) the expansion, development, construction, leasing, repair, alteration, demolition or improvement of any property in which the Partnership or any Subsidiary of the Partnership owns an interest;
(F) the negotiation, execution execution, and performance of any contracts, conveyances or other instruments on behalf that the General Partner considers useful or necessary to the conduct of the Partnership generally Partnership’s operations or the applicable Seriesimplementation of the General Partner’s powers under this Agreement, including contracting with contractors, developers, consultants, accountants, legal counsel, other professional advisors and other agents and the payment of their expenses and compensation out of the Partnership’s assets;
(viG) the distribution of Partnership cash or property of the applicable Seriesother Partnership assets in accordance with this Agreement;
(viiH) holding, managing, investing and reinvesting cash and other assets of the Partnership;
(I) the collection and receipt of revenues and income of the Partnership;
(J) the establishment of one or more divisions of the Partnership, the selection and dismissal of employees of the Partnership (including, without limitation, employees having titles such as “president,” “vice president,” “secretary” and “treasurer” of the Partnership), and agents, outside attorneys, accountants, consultants and contractors of the Partnership, and the determination of their compensation and other terms of employment or engagement;
(K) the maintenance of separate or joint such insurance policies for the benefit of the Partnership, any Series, any Partnership and the Partners and directors and officers thereof as it deems necessary or any Indemniteesappropriate;
(viiiL) the formation of, or acquisition of an interest (including non-voting interests in entities controlled by Affiliates of the Partnership or third parties) in, and the contribution of property to, any further Entities or other relationships that it deems desirable, including, without limitation, the acquisition of interests in, and the contributions of funds or property to, or making of loans to, its Subsidiaries and any further limited other Person from time to time, or general partnershipsthe incurrence of indebtedness on behalf of such Persons or the guarantee of the obligations of such Persons; provided that, joint venturesas long as the General Partner has determined to elect to qualify as a REIT or to continue to qualify as a REIT, corporationsthe Partnership may not engage in any such formation, limited liability companies acquisition or other relationships subject contribution that would cause the General Partner to the restrictions set forth in Section 2.4fail to qualify as a REIT;
(ixM) the control of any matters affecting the rights and obligations of the Partnership or the applicable SeriesPartnership, including 26 = 1
(1) the bringing and defending settlement, compromise, submission to arbitration or any other form of actions at law dispute resolution, or in equity and otherwise engaging in abandonment of, any claim, cause of action, liability, debt or damages, due or owing to or from the conduct Partnership,
(2) the commencement or defense of litigationsuits, legal proceedings, administrative proceedings, arbitration or mediation and other forms of dispute resolution, and
(3) the representation of the Partnership in all suits or legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, the incurring of legal expense expenses, and the settlement of claims and litigation; and
(x) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(N) the undertaking of any action in connection with the Partnership’s direct or indirect investment in its Subsidiaries or any other Person (including, without limitation, the contribution or loan of funds by the Partnership to such Persons);
(O) the determination of the fair market value of any Partnership property distributed in kind using such reasonable method of valuation as the General Partner, in its sole discretion, may adopt;
(P) the exercise, directly or indirectly, through any attorney-in-fact acting under a general or limited power of attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(Q) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(R) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest pursuant to contractual or other arrangements with such Person;
(S) the making, execution and delivery of any and all deeds, leases, notes, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate, in the judgment of the General Partner, for the accomplishment of any of the foregoing;
(T) the issuance of additional Partnership Units in connection with Capital Contributions by Additional Limited Partners and additional Capital Contributions by Partners pursuant to Article 4 hereof; (U)the opening of bank accounts on behalf of, and in the name of, the Partnership and its Subsidiaries; and 27 = 1
(V) maintaining, or causing the transfer agent to maintain the Partnership Interest Records to reflect accurately at all times the Capital Contributions and Percentage Interests of the Partners as the same are adjusted from time to time to the extent necessary to reflect redemptions, Capital Contributions, the issuance of Partnership Units, the admission of any Additional Limited Partner or any Substituted Limited Partner or otherwise.
(b) (iv)(i)Each of the Limited Partners agree that the General Partner is authorized to execute, deliver and perform the above-mentioned agreements and transactions on behalf of the Partnership without any further act, approval or vote of the Partners, notwithstanding any other provision of this Agreement to the fullest extent permitted under the Act or other applicable law, rule or regulation.
Appears in 1 contract
Sources: Agreement of Limited Partnership (Independence Realty Trust, Inc)
Management. (a) The Managing General Partner of the Partnership generally shall conduct, direct and manage all activities of the Partnership generally, and the Managing General Partner of each Series shall conduct, direct and manage all activities of the Series for which it serves as Managing General Partner. Except as otherwise expressly provided in this Agreement, (i) all management powers over the business and affairs of the Partnership generally are and shall be exclusively vested in the Managing General Partner of the Partnership generallyPartner, and no Limited Partner or other General Partner shall have any right to participate in or exercise control or management power over the business and affairs of (or authority to bind) the Partnership generally and (ii) all management powers over the business and affairs of each Series shall be exclusively vested in the Managing Partnership. The General Partner may not be removed by the Partners with or without cause, except with the consent of such Series, and no Limited Partner or other the General Partner shall have any management power over the business and affairs of (or authority to bind) such SeriesPartner. In addition to the powers now or hereafter granted to a general partner of a limited partnership under applicable law or that are granted to a Managing the General Partner under any other provision of this Agreement, each Managing the General Partner, subject to any approval required by the other provisions hereof including Section 7.4, Section 7.5 or any other provision of this Agreement7.03, shall have full power and authority to do all things and on such terms as it determines to be deemed necessary or appropriate desirable by it to conduct the business of the Partnership generally or the applicable Series, as the case may bePartnership, to exercise all powers set forth in Section 2.5 3.02 hereof and to effectuate the purposes set forth in Section 2.43.01 hereof, including the followingincluding, without limitation:
(i) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money or selling assets to permit the Partnership to make distributions to its Partners in such amounts as will permit the Corporation (so long as the Corporation desires to maintain or restore its qualification as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Code Section 4981) and to make distributions to its stockholders sufficient to permit the Corporation to maintain or restore REIT qualification or otherwise to satisfy the REIT Requirements), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtedness (including the securing of same by deed to secure debt, mortgage, deed of trust or other lien or encumbrance on the Partnership's assets) and the incurring of any other obligationsobligations that it deems necessary for the conduct of the activities of the Partnership;
(ii) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership, the registration of any class of securities of the Partnership under the Exchange Act and each Series (other than in connection with the matters set forth in Section 9.3)listing of any debt securities of the Partnership on any exchange;
(iii) subject to Section 11.02 hereof, the acquisition, dispositionsale, mortgagelease, pledgetransfer, encumbranceexchange or other disposition of any, hypothecation all or exchange of any or substantially all of the assets of the applicable Series Partnership (including, but not limited to, the exercise or grant of any conversion, option, privilege or subscription right or any other right available in connection with any assets at any time held by the Partnership) or the merger merger, consolidation, reorganization or other combination of the Partnership with or into another Personentity;
(iv) the mortgage, pledge, encumbrance or hypothecation of any assets of the Partnership, the use of the assets of the applicable Series Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms that it sees fit, including, without limitation, the financing of the operations and activities of the General Partner, the Partnership or any of the Partnership's Subsidiaries, the lending of funds to other Persons (including, without limitation, the Partnership's Subsidiaries) and the repayment of obligations of the Partnership, its Subsidiaries and any other Person in which the Partnership has an equity investment, and the making of capital contributions to and equity investments in the Partnership's Subsidiaries;
(v) the use of the assets of the Partnership (including, without limitation, cash on hand) for any purpose consistent with the terms of this Agreement and on any terms it sees fit, including, without limitation, the financing of the conduct of the operations of the General Partner, the Corporation, the Partnership or any of the Partnership's Subsidiaries, the lending of funds to other Persons (including, without limitation, the General Partner, the Corporation and their Subsidiaries and the Partnership's Subsidiaries) and the repayment of obligations of the Partnership and its Subsidiaries and any other Person in which the Partnership has an equity investment and the making of capital contributions to its Subsidiaries;
(vi) the management, operation, leasing, landscaping, repair, alteration, demolition, replacement or improvement of any Property, including, without limitation, any Contributed Property, or other asset of the Partnership or any Subsidiary, whether pursuant to a Services Agreement or otherwise;
(vii) the negotiation, execution and performance of any contracts, leases, conveyances or other instruments on behalf that the General Partner considers useful or necessary to the conduct of the Partnership generally Partnership's operations or the applicable Seriesimplementation of the General Partner's powers under this Agreement, including contracting with contractors, developers, consultants, accountants, legal counsel, other professional advisors and other agents and the payment of their expenses and compensation out of the Partnership's assets;
(viviii) the distribution of Partnership cash or property other Partnership assets in accordance with this Agreement, the holding, management, investment and reinvestment of cash and other assets of the applicable SeriesPartnership and the collection and receipt of revenues, rents and income of the Partnership;
(viiix) the maintenance of separate or joint such insurance policies for the benefit of the PartnershipPartnership and the Partners as the General Partner deems necessary or appropriate, any Seriesincluding, any Partners or any Indemniteeswithout limitation, (i) casualty, liability and other insurance on the Properties and (ii) liability insurance for the Indemnitees hereunder;
(viiix) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies companies, joint ventures or other relationships subject that the General Partner deems desirable (including, without limitation, the acquisition of interests in, and the contributions of property to, any Subsidiary and any other Person in which it has an equity investment from time to time); provided, however, that as long as the restrictions set forth Corporation has determined to continue to qualify as a REIT, the General Partner may not engage in any such formation, acquisition or contribution that would cause the Corporation to fail to qualify as a REIT within the meaning of Code Section 2.4856(a) (so long as the Corporation desires to maintain its qualification as a REIT);
(ixxi) the filing of applications, communicating and otherwise dealing with any and all governmental agencies having jurisdiction over, or in any way affecting, the Partnership's assets or any other aspect of the Partnership business;
(xii) the control of any matters affecting the rights and obligations of the Partnership or the applicable SeriesPartnership, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigationsettlement, compromise, submission to arbitration or mediation any other form of dispute resolution, or abandonment, of any claim, cause of action, liability, debt or damages, due or owing to or from the Partnership, the commencement or defense of suits, legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, and the representation of the Partnership in all suits or legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, the incurring of legal expense expense, and the settlement of claims and litigation; and
(x) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xiii) the undertaking of any action in connection with the Partnership's direct or indirect investment in any Subsidiary or any other Person (including, without limitation, the contribution or loan of funds by the Partnership to such Persons);
(xiv) except as otherwise specifically set forth in this Agreement, the determination of the fair market value of any Partnership property distributed in-kind using such reasonable method of valuation as it may adopt; provided, that such methods are otherwise consistent with the requirements of this Agreement;
(xv) the enforcement of any rights against any Partner pursuant to representations, warranties, covenants and indemnities relating to such Partner's contribution of property or assets to the Partnership;
(xvi) the exercise, directly or indirectly, through any attorney-in-fact acting under a general or limited power-of-attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(xvii) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(xviii) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest, pursuant to contractual or other arrangements with such Person;
(xix) the making, execution and delivery of any and all deeds, leases, notes, deeds to secure Debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate in the judgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement;
(xx) the issuance of additional Partnership Units, as appropriate and in the General Partner's sole and absolute discretion, in connection with Capital Contributions by Additional Limited Partners and additional Capital Contributions by Partners pursuant to Article IV hereof;
(xxi) the selection and dismissal of Company Employees (including, without limitation, employees having titles or offices such as president, vice president, secretary and treasurer), and agents, outside attorneys, accountants, consultants and contractors of the Partnership or the General Partner, the determination of their compensation and other terms of employment or hiring and the delegation to any such Company Employee the authority to conduct the business of the Partnership in accordance with the terms of this Agreement;
(xxii) the distribution of cash to acquire Partnership Units held by a Limited Partner in connection with a Limited Partner's exercise of its Redemption right under Section 8.06 hereof;
(xxiii) the amendment and restatement of Exhibit A hereto to reflect accurately at all times the Capital Contributions and Percentage Interests of the Partners as the same are adjusted from time to time to the extent necessary to reflect redemptions, Capital Contributions, the issuance of Partnership Units, the admission of any Additional Limited Partner or any Substituted Limited Partner or otherwise, which amendment and restatement, notwithstanding anything in this Agreement to the contrary, shall not be deemed an amendment to this Agreement, as long as the matter or event being reflected in Exhibit A hereto otherwise is authorized by this Agreement;
(xxiv) the determination regarding whether a payment to a Partner who exercises its Redemption Right under Section 8.06 that is assumed by the General Partner will be paid in the form of the Cash Amount or the REIT Shares Amount, except as such determination may be limited by Section 8.06.
(xxv) the collection and receipt of revenues and income of the Partnership;
(xxvi) the registration of any class of securities of the Partnership under the Securities Act or the Exchange Act, and the listing of any debt securities of the Partnership on any exchange.
(xxvii) an election to dissolve the Partnership pursuant to Section 13.01(b) hereof; and
(xxviii) the taking of any action necessary or appropriate to enable the Corporation to qualify as a REIT (so long as the Corporation desires to maintain its qualification as a REIT).
(b) Each of the Limited Partners agrees that, except as provided in Section 7.03 hereof, the General Partner is authorized to execute, deliver and perform the above-mentioned agreements and transactions on behalf of the Partnership without any further act, approval or vote of the Partners, notwithstanding any other provision of this Agreement, the Act or any applicable law, rule or regulation.
(c) At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain working capital and other reserves in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
(d) In exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner (including the General Partner) of any action taken (or not taken) by it. Except as may be provided in a separate written agreement between the Partnership and the Limited Partners, the General Partner and the Partnership shall not have liability to a Limited Partner under any circumstances as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner pursuant to its authority under this Agreement provided, that the General Partner has acted in good faith and pursuant to its authority under this Agreement.
Appears in 1 contract
Sources: Limited Partnership Agreement (Retail Opportunity Investments Partnership, LP)
Management. (a) The Managing General Partner of the Partnership generally shall conduct, direct and manage all activities of the Partnership generally, and the Managing General Partner of each Series shall conduct, direct and manage all activities of the Series for which it serves as Managing General Partner. A. Except as otherwise expressly provided in this Agreement, (i) all management powers over the business and affairs of the Partnership generally are and shall be exclusively vested in the Managing General Partner of the Partnership generallyPartner, and no Limited Partner or other General Partner shall have any right to participate in or exercise control or management power over the business and affairs of (or authority to bind) the Partnership generally and (ii) all management powers over the business and affairs of each Series shall be exclusively vested in the Managing Partnership. The General Partner of such Series, and no may not be removed by the Limited Partner Partners with or other General Partner shall have any management power over the business and affairs of (or authority to bind) such Serieswithout cause. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or that which are granted to a Managing the General Partner under any other provision of this Agreement, each Managing the General Partner, subject to any approval required by Section 7.4, Section 7.5 or any the other provision of this Agreementprovisions hereof including Sections 7.3 and 11.2, shall have full power and authority to do all things and on such terms as deemed necessary, appropriate, convenient or desirable by it determines to be necessary or appropriate to conduct the business of the Partnership generally or the applicable Series, as the case may bePartnership, to exercise all powers set forth in Section 2.5 3.2 and to effectuate the purposes set forth in Section 2.43.1, including the followingincluding, without limitation:
(i1) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money to permit the Partnership to make distributions to its Partners in such amounts as will permit the Company (so long as the Company has determined to qualify as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Section 4981 of the Code) and to make distributions to its stockholders sufficient to permit the Company to maintain REIT status), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtedness (including the securing of same by mortgage, deed of trust or other lien or encumbrance on the Partnership’s assets) and the incurring of any other obligationsobligations it deems necessary for the conduct of the activities of the Partnership;
(ii2) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership or which the General Partner agrees to cause the Partnership to file, the registration of any class of securities of the Partnership under the Securities Exchange Act, and each Series (other than in connection the listing of any debt securities of the Partnership on any exchange and communication with the matters set forth in Section 9.3)any and all governmental authorities;
(iii3) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the applicable Series Partnership or the merger or other combination of the Partnership with or into another Personentity;
(iv4) the acquisition, ownership, disposition, lease, management, mortgage, pledge, encumbrance or hypothecation of any assets of the Partnership, and the use of the assets of the applicable Series Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms it sees fit, including, without limitation, the financing of the conduct or the operations of the General Partner or the Partnership, the lending of funds to other Persons (including, without limitation, the General Partner or any Subsidiaries of the Partnership) and the repayment of obligations of the Partnership, any of its Subsidiaries and any other Person in which it has an equity investment, and the making of capital contributions to its Subsidiaries, and specifically including entering into agreements incident to the acquisition of property through which the Partnership indemnifies the contributing party for tax liabilities incurred related to the Partnership’s disposition of the property or reducing the debt of the Partnership allocable to the contributing party;
(v5) the negotiation, execution execution, and performance of any contracts, leases, conveyances or other instruments on behalf that the General Partner considers appropriate, useful or necessary to the conduct of the Partnership generally Partnership’s operations or the applicable Seriesimplementation of the General Partner’s powers under this Agreement, including contracting with contractors, developers, consultants, accountants, legal counsel, other professional advisors and other agents and the payment of their expenses and compensation out of the Partnership’s assets;
(vi6) the distribution of Partnership cash or property of the applicable Seriesother Partnership assets in accordance with this Agreement;
(vii7) the establishment of one or more divisions of the Partnership, the selection and dismissal of employees of the Partnership (including, without limitation, employees having titles such as “president,” “vice president,” “secretary” and “treasurer”), and agents, outside attorneys, accountants, consultants and contractors of the Partnership, the determination of their compensation and other terms of employment or hiring, including waivers of conflicts of interest and the payment of their expenses and compensation out of the Partnership’s assets;
(8) the maintenance of separate or joint insurance policies for the benefit of the Partnership, any Seriesits assets and the Partners and directors and officers of the Partnership, any Partners the General Partner or any Indemniteesthe direct or indirect parent of the General Partner in such amounts, on such terms and of such types as it deems necessary or appropriate;
(viii9) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies ventures or other relationships subject that it deems desirable (including, without limitation, the acquisition of interests in, and the contributions of property to any Subsidiary and any other Person in which it has an equity investment from time to time); provided, that, as long as the restrictions set forth Company has determined to continue to qualify as a REIT, the Partnership may not engage in Section 2.4any such formation, acquisition or contribution that could cause the Company to fail to qualify as a REIT;
(ix10) the control of any matters affecting the rights and obligations of the Partnership or the applicable SeriesPartnership, including the bringing and defending settlement, compromise, submission to arbitration or any other form of actions at law dispute resolution, or in equity and otherwise engaging in abandonment of, any claim, cause of action, liability, debt or damages, due or owing to or from the conduct Partnership, the commencement or defense of litigationsuits, legal proceedings, administrative proceedings, arbitration or mediation other forms of dispute resolution, and the representation of the Partnership in all suits or legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, the incurring of legal expense expense, and the settlement of claims and litigation; and
(x) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(11) the undertaking of any action in connection with the Partnership’s direct or indirect investment in any Person (including, without limitation, contributing or loaning Partnership funds to, incurring indebtedness on behalf of, or guarantying the obligations of any such Persons);
(12) subject to the other provisions in this Agreement, the determination, in good faith, of the fair market value of any Partnership property distributed in kind using such reasonable method of valuation as it may adopt, provided, that such methods are otherwise consistent with requirements of this Agreement;
(13) the management, operation, leasing, landscaping, repair, alteration, demolition or improvement of any real property or improvements owned by the Partnership or any Subsidiary of the Partnership or any Person in which the Partnership has made a direct or indirect equity investment;
(14) holding, managing, investing and reinvesting cash and other assets of the Partnership;
(15) the collection and receipt of revenues and income of the Partnership;
(16) the exercise, directly or indirectly through any attorney-in-fact acting under a general or limited power of attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(17) the exercise of any of the powers of the General Partner under this Agreement on behalf of, in connection with or jointly with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest;
(18) the exercise of any of the powers of the General Partner under this Agreement on behalf of any Person in which the Partnership does not have an interest pursuant to contractual or other arrangements with such Person;
(19) the making, execution and delivery of any and all deeds, leases, notes, deeds to secure debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases, documents, legal instruments or agreements, in writing, as may be necessary or appropriate in the judgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement;
(20) the issuance of additional Partnership Interests, as appropriate, in connection with the contribution of Additional Funds pursuant to Section 4.3;
(21) the distribution of cash to acquire Partnership Units held by a Limited Partner in connection with a Limited Partner’s exercise of its Redemption right under Section 8.6 hereof; and
(22) the amendment and restatement of Exhibit A hereto to reflect the Capital Contributions and Percentage Interests of the Partners as the same are adjusted from time to time to the extent necessary to reflect redemptions, Capital Contributions, the issuance of Partnership Units, the admission of any Additional Limited Partner or any Substituted Limited Partner or otherwise, which amendment and restatement, notwithstanding anything in this Agreement to the contrary, shall not be deemed an amendment to this Agreement, as long as the matter or event being reflected in Exhibit A hereto otherwise is authorized by this Agreement.
B. Each of the Limited Partners agrees that the General Partner is authorized to perform the actions authorized by Section 7.1.A. and to execute, deliver and perform the above-mentioned agreements and transactions on behalf of the Partnership without any further act, approval or vote of the Partners, notwithstanding any other provisions of this Agreement (except as provided in Section 7.3 or 11.2), the Act or any applicable law, rule or regulation to the fullest extent permitted under the Act or other applicable law, rule or regulation. The execution, delivery or performance, the taking of any action or the failure to take any action, by the General Partner or the Partnership of any agreement authorized or permitted under this Agreement shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement or of any duty stated or implied by law or equity.
C. In addition to the authority granted to it in Section 7.1.A.(8), at all times from and after the date hereof, the General Partner may cause the Partnership to obtain and maintain (i) casualty, liability and other insurance on the properties of the Partnership and (ii) liability insurance for the Indemnities hereunder.
D. At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain working capital reserves in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
E. In exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner (including the Company, Communities GP and Communities LP) of any action taken (or not taken) by the General Partner. The General Partner and the Partnership shall not have liability to a Partner under this Agreement as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner pursuant to its authority under this Agreement.
F. Except as otherwise provided herein, to the extent the duties of the General Partner require expenditures of funds to be paid to third parties, the General Partner shall not have any obligations hereunder to make such payments except to the extent that Partnership funds are reasonably available to it for the performance of such duties, and nothing herein contained shall be deemed to authorize or require the General Partner, in its capacity as such, to expend its individual funds for payment to third parties or to undertake any individual liability or obligation on behalf of the Partnership.
G. The General Partner shall not permit the Partnership to engage in any “prohibited transaction” as defined in Section 857(b)(6)(B)(iii) of the Code.
Appears in 1 contract
Sources: Limited Partnership Agreement (Campus Crest Communities, Inc.)
Management. (a) The Managing General Partner of the Partnership generally shall conduct, direct and manage all activities of the Partnership generally, and the Managing General Partner of each Series shall conduct, direct and manage all activities of the Series for which it serves as Managing General Partner. Except as otherwise expressly provided in this Agreement, (i) all management powers over the business and affairs of the Partnership generally are and shall be exclusively vested in the Managing General Partner of the Partnership generallyPartner, and no Limited Partner or other General Partner shall have any right to participate in or exercise control or management power over the business and affairs of (or authority to bind) the Partnership generally and (ii) all management powers over the business and affairs of each Series shall be exclusively vested in the Managing Partnership. The General Partner may not be removed by the Limited Partners with or without cause, except with the consent of such Seriesthe General Partner, which it may give or withhold at its sole and no Limited Partner or other General Partner shall have any management power over the business and affairs of (or authority to bind) such Seriesabsolute discretion. In addition to the powers now or hereafter granted to a general partner of a limited partnership under applicable law or that which are granted to a Managing the General Partner under any other provision of this Agreement, each Managing the General Partner, subject to any approval required by Section 7.4, Section 7.5 or any other provision of this Agreement7.3, shall have full power and authority to do all things and on such terms as it determines to be deemed necessary or appropriate desirable by it to conduct the business of the Partnership generally or the applicable Series, as the case may bePartnership, to exercise all powers set forth in Section 2.5 3.2 and to effectuate the purposes set forth in Section 2.43.1, including the followingincluding:
(i) the making of any expenditures, the lending or borrowing of moneymoney (including making prepayments on loans and borrowing money to permit the Partnership to make distributions to its Partners in such amounts as will permit the Company (so long as the Company desires to maintain its qualification as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Code Section 4981) and to make distributions to its shareholders in amounts sufficient to permit the Company to maintain its REIT status), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences evidence of indebtedness (including the securing of the same by deed, mortgage, deed of trust or other lien or encumbrance on the Partnership’s assets) and the incurring of any other obligationsobligations it deems necessary for the conduct of the activities of the Partnership;
(ii) the making of tax, regulatory and other filingsfilings or elections, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership and each Series (other than in connection with the matters set forth in Section 9.3)Partnership;
(iii) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the applicable Series Partnership (including the exercise or grant of any conversion, option, privilege, or subscription right or other right available in connection with any assets at any time held by the Partnership) or the merger or other combination of the Partnership with or into another Personentity (all of the foregoing subject to any prior approval only to the extent required by Section 7.3);
(iv) the mortgage, pledge, encumbrance or hypothecation of any assets of the Partnership, the use of the assets of the applicable Series Partnership (including cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms that it sees fit, including the financing of the conduct of the operations of the Partnership, the Company or any of the Partnership’s or the Company’s Subsidiaries, the lending of funds to other Persons (including the Subsidiaries of the Partnership and/or the Company) and the repayment of obligations of the Partnership and its Subsidiaries and any other Person in which it has an equity investment, and the making of capital contributions to its Subsidiaries;
(v) the management, operation, leasing, landscaping, repair, alteration, demolition, disposition or improvement of any real property or improvements owned by the Partnership or any Subsidiary of the Partnership;
(vi) the negotiation, execution execution, delivery and performance of any contracts, conveyances or other instruments on behalf that the General Partner considers useful or necessary or convenient to the conduct of the Partnership generally Partnership’s operations or the applicable Series;
(vi) the distribution of cash or property implementation of the applicable SeriesGeneral Partner’s powers under this Agreement, including contracting with consultants, accountants, legal counsel, other professional advisors and other agents and the payment of their expenses and compensation out of the Partnership’s assets;
(vii) the distribution of Partnership cash or other Partnership assets in accordance with this Agreement;
(viii) holding, managing, investing and reinvesting cash and other assets of the Partnership;
(ix) the collection and receipt of revenues and income of the Partnership;
(x) the establishment of one or more divisions of the Partnership, the selection and dismissal of employees of the Partnership (including employees who may be designated as officers with titles such as “president,” “vice president,” “secretary” and “treasurer” of the Partnership), and agents, outside attorneys, accountants, consultants and contractors of the Partnership, and the determination of their compensation and other terms of employment or hiring;
(xi) the maintenance of separate or joint such insurance policies for the benefit of the Partnership, any Series, any Partnership and the Partners as it deems necessary or any Indemniteesappropriate;
(viiixii) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventureslimited liability companies, corporations, limited liability companies entities that are treated as REITs, “taxable REIT subsidiaries” or as foreign corporations for federal income tax purposes, joint ventures or other relationships subject that it deems desirable (including the acquisition of interests in, and the contributions of property or the making of loans to, its or the Company’s Subsidiaries and any other Person in which it has an equity investment from time to time or the restrictions set forth incurrence of indebtedness on behalf of such Persons or the guarantee of obligations of such Persons and the making of any tax, regulatory or other filing or election with respect to any of the foregoing Persons); provided, that as long as the Company has determined to continue to qualify as a REIT, the Partnership may not engage in Section 2.4any such formation, acquisition or contribution that would cause the Company to fail to qualify as a REIT;
(ixxiii) the control of any matters affecting the rights and obligations of the Partnership or the applicable SeriesPartnership, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigationsettlement, compromise, submission to arbitration or mediation any other form of dispute resolution, or abandonment of, any claim, cause of action, liability, debt or damages, due or owing to or from the Partnership, the commencement or defense of suits, legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, and the incurring representation of the Partnership in all suits or legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, the incurrence of legal expense expense, and the settlement of claims and litigation; and
(x) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xiv) the undertaking of any action in connection with the Partnership’s direct or indirect investment in any Subsidiary or any other Person (including the contribution or loan of funds by the Partnership to such Persons);
(xv) the determination of the fair market value of any Partnership property distributed in kind using such reasonable method of valuation as the General Partner may adopt;
(xvi) the enforcement of any rights against any Partner pursuant to representations, warranties, covenants and indemnities relating to such Partner’s contribution of property or assets to the Partnership;
(xvii) the exercise, directly or indirectly, through any attorney-in-fact acting under a general or limited power of attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(xviii) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(xix) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest pursuant to contractual or other arrangements with such Person;
(xx) the making, execution, delivery and performance of any and all deeds, leases, notes, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary, appropriate or convenient, in the judgment of the General Partner, for the accomplishment of any of the powers of the General Partner enumerated in this Agreement;
(xxi) the issuance of additional Partnership Units and other partnership interests, as appropriate, in connection with Capital Contributions by Additional Limited Partners and additional Capital Contributions by Partners pursuant to Article 4; and
(xxii) the taking of any action necessary (or appropriate by the General Partner, in its discretion) to enable the Company to qualify as a REIT.
(b) Each of the Limited Partners agrees that the General Partner is authorized to execute, deliver and perform the above-mentioned agreements and transactions on behalf of the Partnership without any further act, approval or vote of the Partners, notwithstanding any other provision of this Agreement (except as provided in Section 7.3), the Act or any applicable law, rule or regulation, to the fullest extent permitted under the Act or other applicable law, rule or
Appears in 1 contract
Sources: Limited Partnership Agreement (Angel Oak Mortgage, Inc.)
Management. (a) The Managing General Partner of the Partnership generally shall conduct, direct and manage all activities of the Partnership generally, and the Managing General Partner of each Series shall conduct, direct and manage all activities of the Series for which it serves as Managing General Partner. A. Except as otherwise expressly provided in this Agreement, (i) all management powers over the business and affairs of the Partnership generally shall be are exclusively vested in the Managing General Partner of the Partnership generallyPartner, and no Limited Partner or other General Partner shall have any right to participate in or exercise control or management power over the business and affairs of (or authority to bind) the Partnership generally and (ii) all management powers over the business and affairs of each Series shall be exclusively vested in the Managing Partnership. The General Partner may not be removed by the Limited Partners with or without cause, except with the consent of such Series, and no Limited Partner or other the General Partner shall have any management power over the business and affairs of (or authority to bind) such SeriesPartner. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or that which are granted to a Managing the General Partner under any other provision of this Agreement, each Managing the General Partner, subject to any approval required by Section 7.4, Section 7.5 or any the other provision provisions of this Agreement, including without limitation Section 7.3, shall have full power and authority to do all things and on such terms as it determines to be deemed necessary or appropriate desirable by it to conduct the business of the Partnership generally or the applicable Series, as the case may bePartnership, to exercise all powers set forth in Section 2.5 3.2 and to effectuate the purposes set forth in Section 2.43.1, including the followingincluding, without limitation:
(i1) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money to permit the Partnership to make distributions to its Partners in such amounts as will permit the General Partner (so long as the General Partner has determined to qualify as a REIT) to avoid the incurrence of any federal income tax (including, for this purpose, any excise tax pursuant to Section 4981 of the Code) and to make distributions to its shareholders sufficient to permit the General Partner to maintain REIT status), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtedness (including the securing of same by mortgage, deed of trust or other lien or encumbrance on the Partnership’s assets) and the incurring of any other obligationsobligations it deems necessary for the conduct of the activities of the Partnership;
(ii2) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership and each Series (other than in connection with the matters set forth in Section 9.3)Partnership;
(iii3) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the applicable Series Partnership or the merger or other combination of the Partnership with or into another Personentity;
(iv4) the mortgage, pledge, encumbrance or hypothecation of any assets of the Partnership, and the use of the assets of the applicable Series Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms it sees fit, including, without limitation, the financing of the conduct or the operations of the General Partner or the Partnership, the lending of funds to other Persons (including, without limitation, the General Partner (if necessary to permit the financing or capitalization of a Subsidiary of the Partnership) or any Subsidiaries of the Partnership) and the repayment of obligations of the Partnership, any of its Subsidiaries and any other Person in which it has an equity investment;
(v5) the negotiation, execution execution, and performance of any contracts, leases, conveyances or other instruments on behalf that the General Partner considers useful or necessary to the conduct of the Partnership generally Partnership’s operations or the applicable Seriesimplementation of the General Partner’s powers under this Agreement;
(vi6) the distribution of Partnership cash or property of the applicable Seriesother Partnership assets in accordance with this Agreement;
(vii7) the selection and dismissal of employees of the Partnership (including, without limitation, employees having titles such as “president,” “vice president,” “secretary” and “treasurer”), and agents, outside attorneys, accountants, consultants and contractors of the Partnership, the determination of their compensation and other terms of employment or hiring, including waivers of conflicts of interest and the payment of their expenses and compensation out of the Partnership’s assets;
(8) the maintenance of separate or joint such insurance policies (including, without limitation, directors and officers insurance) for the benefit of the Partnership, any Series, any Partnership and the Partners as it deems necessary or any Indemniteesappropriate;
(viii9) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies ventures or other relationships subject that it deems desirable (including, without limitation, the acquisition of interests in, and the contributions of property to any Subsidiary and any other Person in which it has an equity investment from time to time); provided that, as long as the restrictions set forth General Partner has determined to continue to qualify as a REIT, the Partnership may not engage in Section 2.4any such formation, acquisition or contribution that would cause the General Partner to fail to qualify as a REIT;
(ix10) the control of any matters affecting the rights and obligations of the Partnership or the applicable SeriesPartnership, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigation, arbitration or mediation litigation and the incurring of legal expense and the settlement of claims and litigation; and
(x) , and the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(11) the undertaking of any action in connection with the Partnership’s direct or indirect investment in any Person (including, without limitation, contributing or loaning Partnership funds to, incurring indebtedness on behalf of, or guarantying the obligations of any such Persons);
(12) subject to the other provisions in this Agreement, the determination of the fair market value of any Partnership property distributed in kind using such reasonable method of valuation as it may adopt, provided that such methods are otherwise consistent with requirements of this Agreement;
(13) the management, operation, leasing, landscaping, repair, alteration, demolition or improvement of any real property or improvements owned by the Partnership or any Subsidiary of the Partnership or any Person in which the Partnership has made a direct or indirect equity investment;
(14) holding, managing, investing and reinvesting cash and other assets of the Partnership;
(15) the collection and receipt of revenues and income of the Partnership;
(16) the exercise, directly or indirectly through any attorney-in-fact acting under a general or limited power of attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(17) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(18) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest pursuant to contractual or other arrangements with such Person;
(19) the maintenance of the Partnership’s books and records; and
(20) the making, execution and delivery of any and all deeds, leases, notes, deeds to secure debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate in the judgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement.
B. Each of the Limited Partners agrees that the General Partner is authorized to execute, deliver and perform the above-mentioned agreements and transactions on behalf of the Partnership without any further act, approval or vote of the Partners, notwithstanding any other provisions of this Agreement (except as provided in Section 7.3), the Act or any applicable law, rule or regulation. The execution, delivery or performance by the General Partner or the Partnership of any agreement authorized or permitted under this Agreement shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement or of any duty stated or implied by law or equity.
C. At all times from and after July 7, 2015, the General Partner may cause the Partnership to obtain and maintain (i) casualty, liability and other insurance on the properties of the Partnership and (ii) liability insurance for the Indemnitees hereunder.
D. At all times from and after July 7, 2015, the General Partner may cause the Partnership to establish and maintain working capital reserves in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
E. Except as provided in this Agreement with respect to the qualification of the General Partner as a REIT and as may be provided in a separate written agreement between the Partnership and a Limited Partner, in exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner (including the General Partner) of any action taken by the General Partner. Except as provided in this Agreement with respect to the qualification of the General Partner as a REIT and as may be provided in a separate written agreement between the Partnership and a Limited Partner, the General Partner and the Partnership shall not have liability to a Partner under any circumstances as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner pursuant to its authority under this Agreement.
Appears in 1 contract
Sources: Limited Partnership Agreement (Seritage Growth Properties)
Management. (a) The Managing General Partner of the Partnership generally shall conduct, direct and manage all activities of the Partnership generally, and the Managing General Partner of each Series shall conduct, direct and manage all activities of the Series for which it serves as Managing General Partner. Except as otherwise expressly provided in this Agreement, (i) all management powers over the business and affairs of the Partnership generally LLC are and shall be exclusively vested in the Managing General Partner of the Partnership generallyManager Member, and no Limited Partner or Member (other General Partner than the Manager Member) shall have any right to participate in or exercise control or management power over the business and affairs of (the LLC. The Manager Member may not be removed by the Members with or authority to bind) the Partnership generally and (ii) all management powers over the business and affairs of each Series shall be exclusively vested in the Managing General Partner of such Series, and no Limited Partner or other General Partner shall have any management power over the business and affairs of (or authority to bind) such Serieswithout cause. In addition to the powers now or hereafter granted a general partner manager of a limited partnership liability company under applicable law or that which are granted to a Managing General Partner the Manager Member under any other provision of this Agreement, each Managing General Partnerthe Manager Member, subject to any approval required by Section 7.4Sections 4.3, Section 7.5 or any other provision of this Agreement10.6 and 10.7 hereof, and shall have full power and authority to do all things and on such terms as it determines to be deemed necessary or appropriate desirable by it to conduct the business of the Partnership generally or the applicable Series, as the case may beLLC, to exercise all powers set forth in Section 2.5 2.3 hereof and to effectuate the purposes set forth in Section 2.42.2 hereof, including the followingincluding, without limitation:
(i) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money to permit the LLC to make distributions to its Members in such amounts as will permit the Company (so long as the Company qualifies as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Section 4981 of the Code) and to make distributions to its shareholders in amounts sufficient to permit the Company to maintain REIT status), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences evidence of indebtedness (including the securing of the same by deed, mortgage, deed of trust or other lien or encumbrance on the LLC's assets) and the incurring of any other obligationsobligations it deems necessary for the conduct of the activities of the LLC;
(ii) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership and each Series (other than in connection with the matters set forth in Section 9.3)LLC;
(iii) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the applicable Series LLC (including the exercise or grant of any conversion, option, privilege, or subscription right or other right available in connection with any assets at any time held by the LLC) or the merger or other combination of the Partnership LLC with or into another Personentity (all of the foregoing subject to any prior approval only to the extent required by Section 4.3 hereof);
(iv) the use of the assets of the applicable Series LLC (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms it sees fit, including, without limitation, the financing of the conduct of the operations of the Company, the LLC or any of the LLC's Subsidiaries, the lending of funds to other Persons (including, without limitation, Company or the Subsidiaries of the LLC and/or the Company) and the repayment of obligations of the LLC and its Subsidiaries and any other Person in which it has an equity investment, and the making of capital contributions to its Subsidiaries;
(v) the management, operation, leasing, landscaping, repair, alteration, demolition or improvement of any real property or improvements owed by the LLC or any Subsidiary of the LLC;
(vi) the negotiation, execution execution, and performance of any contracts, conveyances or other instruments on behalf that the Manager Member considers useful or necessary to the conduct of the Partnership generally LLC's operations or the applicable Series;
(vi) the distribution of cash or property implementation of the applicable SeriesManager Member's powers under this Agreement, including contracting with contractors, developers, consultants, accountants, legal counsel, other professional advisors and other agents and the payment of their expenses and compensation out of the LLC's assets;
(vii) the distribution of LLC cash or other LLC assets in accordance with this Agreement;
(viii) holding, managing, investing and reinvesting cash and other assets of the LLC;
(ix) the collection and receipt of revenues and income of the LLC;
(x) the establishment of one or more divisions of the LLC, the selection and dismissal of employees of the LLC (including, without limitation, employees having titles such as "president," "vice president," "secretary" and "treasurer" of the LLC), and agents, outside attorneys, accountants, consultants and contractors of the LLC, and the determination of their compensation and other terms of employment or hiring;
(xi) the maintenance of separate or joint such insurance policies for the benefit of the Partnership, any Series, any Partners LLC and the Members as it deems necessary or any Indemniteesappropriate;
(viiixii) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited liability companies, limited or general partnerships, joint ventures, corporations, limited liability companies ventures or other relationships subject that it deems desirable (including, without limitation, the acquisition of interests in, and the contributions of property to, its Subsidiaries and any other Person in which it has an equity investment from time to the restrictions set forth in Section 2.4time);
(ixxiii) the control of any matters affecting the rights and obligations of the Partnership or the applicable SeriesLLC, including the bringing and defending settlement, compromise, submission to arbitration or any other form of actions at law dispute resolution, or in equity and otherwise engaging in abandonment of, any claim, cause of action, liability, debt or damages, due or owing to or from the conduct LLC, the commencement or defense of litigationsuits, legal proceedings, administrative proceedings, arbitration or mediation other forms of dispute resolution, and the representation of the LLC in all suits or legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, the incurring of legal expense expense, and the settlement of claims and litigation; and
(x) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xiv) the undertaking of any action in connection with the LLC's direct or indirect investment in its Subsidiaries or any other Person (including, without limitation, the contribution or loan of funds by the LLC to such Persons);
(xv) the determination of the fair market value of any LLC property distributed in kind using such reasonable method of valuation as the Manager Member may adopt;
(xvi) the exercise, directly or indirectly, through any attorney-in-fact acting under a general or limited power of attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the LLC;
(xvii) the exercise of any of the powers of the Manager Member enumerated in this Agreement on behalf of or in connection with any Subsidiary of the LLC or any other Person in which the LLC has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(xviii) the exercise of any of the powers of the Manager Member enumerated in this Agreement on behalf of any Person in which the LLC does not have an interest pursuant to contractual or other arrangements with such Person;
(xix) the making, execution and delivery of any and all deeds, leases, notes, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate, in the judgment of the Manager Member, for the accomplishment of any of the powers of the Manager Member enumerated in this Agreement; and
(xx) the issuance of additional Units, as appropriate, in connection with Capital Contributions by Additional Members and additional Capital Contributions by Members pursuant to Articles 3 hereof.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Kimco Realty Corp)
Management. (a) The Managing General Partner of the Partnership generally shall conduct, direct and manage all activities of the Partnership generally, and the Managing General Partner of each Series shall conduct, direct and manage all activities of the Series for which it serves as Managing General Partner. Except as otherwise expressly provided in this Agreement, (i) all management powers over the business and affairs of the Partnership generally are and shall be exclusively vested in the Managing General Partner of the Partnership generallyPartner, and no Limited Partner or other General Partner shall have any right to participate in or exercise control or management power over the business and affairs of (or authority to bind) the Partnership generally and (ii) all management powers over the business and affairs of each Series shall be exclusively vested in the Managing Partnership. The General Partner of such Series, and no may not be removed by the Limited Partner Partners with or other General Partner shall have any management power over the business and affairs of (or authority to bind) such Serieswithout cause. In addition to the powers now or hereafter granted to a general partner of a limited partnership under applicable law or that which are granted to a Managing the General Partner under any other provision of this Agreement, each Managing the General Partner, subject to any approval required by Section 7.4, Section 7.5 or any other provision of this Agreement, Partner shall have full power and authority to do all things and on such terms as it determines to be deemed necessary or appropriate desirable by it to conduct the business of the Partnership generally or the applicable Series, as the case may bePartnership, to exercise all powers set forth in Section 2.5 3.2 hereof and to effectuate the purposes set forth in Section 2.43.1 hereof, including the followingincluding, without limitation:
(i1) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money to permit the Partnership to make distributions to its Partners in such amounts as will permit the General Partner (so long as the General Partner qualifies as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Section 4981 of the Code) and to make distributions to the General Partner such that the General Partner can distribute to its shareholders amounts sufficient to permit the General Partner to maintain REIT status), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences evidence of indebtedness (including the securing of same by deed to secure debt, mortgage, deed of trust or other lien or encumbrance on the Partnership's assets) and the incurring of any other obligationsobligations it deems necessary for the conduct of the activities of the Partnership;
(ii2) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership and each Series (other than in connection with the matters set forth in Section 9.3)Partnership;
(iii3) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the applicable Series Partnership (including the exercise or grant of any conversion, option, privilege or subscription right or other right available in connection with any assets at any time held by the Partnership) or the merger or other combination of the Partnership with or into another Personentity (all of the foregoing without any prior approval);
(iv4) the use of the assets of the applicable Series Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms it sees fit, including, without limitation, the financing of the conduct of the operations of the General Partner, the Partnership or any of the Partnership's Subsidiaries, the lending of funds to other Persons (including, without limitation, the Subsidiaries of the Partnership and/or the General Partner) and the repayment of obligations of the Partnership and its Subsidiaries and any other Person in which it has an equity investment, and the making of capital contributions to its Subsidiaries;
(v5) the management, operation, leasing, landscaping, repair, expansion, alteration, renovation, demolition or improvement of any real property or improvements owned by the Partnership or any Subsidiary of the Partnership;
(6) the negotiation, execution execution, and performance of any contracts, conveyances or other instruments on behalf that the General Partner considers useful or necessary to the conduct of the Partnership generally Partnership's operations or the applicable Seriesimplementation of the General Partner's powers under this Agreement, including contracting with the General Partner, any Subsidiary or Affiliate of the General Partner, contractors, developers, consultants, accountants, legal counsel, other professional advisors and other agents and the payment of their expenses and compensation out of the Partnership's assets;
(vi7) the distribution of Partnership cash or property of the applicable Seriesother Partnership assets in accordance with this Agreement;
(vii8) holding, managing, investing and reinvesting cash and other assets of the Partnership;
(9) the collection and receipt of revenues and income of the Partnership;
(10) the establishment of one or more divisions of the Partnership, the selection and dismissal of employees of the Partnership, any division of the Partnership, or the General Partner (including, without limitation, employees having titles such as "president," "vice president," "secretary" and "treasurer" of the Partnership, any division of the Partnership, or the General Partner), and agents, outside attorneys, accountants, consultants and contractors of the General Partner or the Partnership or any division of the Partnership, and the determination of their compensation and other terms of employment or hiring;
(11) the maintenance of separate or joint such insurance policies for the benefit of the Partnership, any Series, any Partnership and the Partners as it deems necessary or any Indemniteesappropriate;
(viii12) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies Subsidiaries or other relationships subject that it deems desirable (including, without limitation, the acquisition of interests in, and the contributions of property to, its Subsidiaries and any other Person in which it has an equity investment from time to the restrictions set forth in Section 2.4time);
(ix13) the control of any matters affecting the rights and obligations of the Partnership or the applicable SeriesPartnership, including the bringing and defending settlement, compromise, submission to arbitration or any other form of actions at law dispute resolution, or in equity and otherwise engaging in abandonment of, any claim, cause of action, liability, debt or damages, due or owing to or from the conduct Partnership, the commencement or defense of litigationsuits, legal proceedings, administrative proceedings, arbitration or mediation other forms of dispute, resolution, and the representation of the Partnership in all suits or legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, the incurring of legal expense expense, and the settlement of claims and litigation; and
(x) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(14) the undertaking of any action in connection with the Partnership's direct or indirect investment in its Subsidiaries or any other Person (including, without limitation, the contribution or loan of funds by the Partnership to such Persons);
(15) the determination of the fair market value of any Partnership property distributed in kind using such reasonable method of valuation as the General Partner may adopt;
(16) the exercise, directly or indirectly, through any attorney-in-fact acting under a general or limited power of attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(17) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(18) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest pursuant to contractual or other arrangements with such Person; and
(19) the making, execution and delivery of any and all deeds, leases, notes, deeds to secure debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreement in writing necessary or appropriate in the judgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement.
(b) Each of the Limited Partners agrees that the General Partner is authorized to execute, deliver and perform the above-mentioned agreements and transactions on behalf of the Partnership without any further act, approval or vote of the Partners, notwithstanding any other provision of this Agreement, the Act or any applicable law, rule or regulation, to the fullest extent permitted under the Act or other applicable law. The execution, delivery or performance by the General Partner or the Partnership of any agreement authorized or permitted under this Agreement shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement or of any duty stated or implied by law or equity.
(c) From and after the date hereof, the General Partner may cause the Partnership to obtain and maintain (i) casualty, liability and other insurance on the properties of the Partnership and (ii) liability insurance for the Indemnities hereunder.
(d) From and after the date hereof, the General Partner may cause the Partnership to establish and maintain at any and all times working capital accounts and other cash or similar balances in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
(e) In exercising its authority under this Agreement and except as provided at Section 5.1, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner of any action taken by it. The General Partner and the Partnership shall not have liability to a Limited Partner under any circumstances as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner pursuant to its authority under this Agreement. Notwithstanding the foregoing, the General Partner is authorized to enter into agreements and understandings with Limited Partners regarding property contributed to the Partnership and conditions under which such property may be sold, transferred or refinanced.
(f) Notwithstanding anything contained in this Agreement to the contrary, the General Partner, acting as fiduciary, shall use its reasonable best efforts and act in good faith to operate the Partnership's assets and manage the Partnership's business, including its indebtedness, so as to produce sufficient Available Cash to fund to the Limited Partners the Priority Distribution Amount on a current basis and any balance in the Cumulative Unpaid Accrued Return Accounts and Cumulative Unpaid Priority Distribution Accounts of the Limited Partners.
Appears in 1 contract
Management. (a) The Managing Except as delegated to the Manager Group as set forth in the Management Services Agreement or as otherwise provided therein or in the NEE Partners Partnership Agreement, the General Partner of the Partnership generally shall conduct, direct and manage all activities of the Partnership generally, and the Managing General Partner of each Series shall conduct, direct and manage all activities of the Series for which it serves as Managing General PartnerPartnership. Except as otherwise expressly provided in this Agreement, (i) but without limitation on the ability of the General Partner to delegate its rights and power to other Persons, all management powers over the business and affairs of the Partnership generally shall be exclusively vested in the Managing General Partner of the Partnership generallyPartner, and no Limited Partner or other General Partner in its capacity as such shall have any management power over the business and affairs of (or authority to bind) the Partnership generally and (ii) all management powers over the business and affairs of each Series shall be exclusively vested in the Managing General Partner of such Series, and no Limited Partner or other General Partner shall have any management power over the business and affairs of (or authority to bind) such SeriesPartnership. In addition to the powers now or hereafter granted to a general partner of a limited partnership under applicable law or that are granted to a Managing the General Partner under any other provision of this Agreement, each Managing the General Partner, subject to any approval required by Section 7.4, Section 7.5 or any other provision of this Agreement7.3, shall have full power and authority to do all things and on such terms as it determines to be necessary or appropriate to conduct the business of the Partnership generally or the applicable Series, as the case may bePartnership, to exercise all powers set forth in Section 2.5 and to effectuate the purposes set forth in Section 2.4, including the following:
(i) the making of any expenditures, the lending or borrowing of money, the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtedness, including indebtedness that is convertible into or exchangeable for Partnership Interests, and the incurring of any other obligations;
(ii) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership and each Series (other than in connection with the matters set forth in Section 9.3)Partnership;
(iii) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the applicable Series Partnership or the merger or other combination of the Partnership with or into another PersonPerson (the matters described in this clause (iii) being subject, however, to any prior approval that may be required by Section 7.3 and Article XIV);
(iv) the use of the assets of the applicable Series Partnership (including cash on hand) for any purpose consistent with the terms of this Agreement, including (A) the financing of the conduct of the operations of the Partnership Group; (B) subject to Section 7.6(a), the lending of funds to other Persons (including other Group Members); (C) the repayment or guarantee of obligations of any Group Member; and (D) the making of capital contributions to any Group Member;
(v) the negotiation, execution and performance of any contracts, conveyances or other instruments on behalf (including instruments that limit 927933.17-WILSR01A - MSW the liability of the Partnership generally under contractual arrangements to all or particular assets of the applicable SeriesPartnership, with the other party to the contract having no recourse against the General Partner or its assets other than its interest in the Partnership, even if the same results in the terms of the transaction are less favorable to the Partnership than would otherwise be the case);
(vi) the distribution of cash or property of held by the applicable SeriesPartnership;
(vii) the selection and dismissal of employees (including employees having titles such as “president,” “vice president,” “secretary” and “treasurer”) and agents, internal and outside attorneys, accountants, consultants and contractors and the determination of their compensation and other terms of employment or hiring;
(viii) the maintenance of separate or joint insurance policies for the benefit of the PartnershipPartnership Group, any Series, any the Partners or any and Indemnitees;
(viiiix) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies or other relationships Persons (including the acquisition of interests in, and the contributions of property to, any Group Member from time to time) subject to the restrictions set forth in Section 2.4;
(ixx) the control of any matters affecting the rights and obligations of the Partnership or the applicable SeriesPartnership, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigation, arbitration or mediation and the incurring of legal expense and the settlement of claims and litigation; and;
(xxi) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the purchase, sale or other acquisition or disposition of Partnership Interests, or the issuance of Derivative Partnership Interests;
(xiii) the undertaking of any action in connection with the Partnership’s participation in the management of any Group Member; and
(xiv) the entering into of agreements with any of its Affiliates to render services to a Group Member or to itself in the discharge of its duties as General Partner of the Partnership.
(b) Notwithstanding any other provision of this Agreement, any Group Member Agreement, the Delaware Act or any applicable law, rule or regulation, each of the Partners and each other Person who may acquire an interest in Partnership Interests hereby agrees that the execution, delivery or performance by the General Partner, any Group Member or any Affiliate of any of them of this Agreement or any agreement authorized or permitted under this Agreement (including the exercise by the General Partner or any Affiliate of the General Partner of the rights accorded pursuant to Article XVII) shall not constitute a breach by the General Partner of any duty or any other obligation of any type whatsoever that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement (or any other agreements) or of any duty existing at law, in equity or otherwise. 927933.17-WILSR01A - MSW
(c) Notwithstanding any other provision of this Agreement, the consent of the NEE Partners General Partner, which may be granted or withheld in its sole discretion, shall be required for the following actions:
(i) Sale of all or substantially all assets of the Partnership Group as set forth in Section 7.3.
(ii) Merger, consolidation, or conversion of the Partnership, as set forth in Section 14.2, or the merger, consolidation, or conversion of any other Group Member.
(iii) Dissolution of the Partnership, as set forth in Section 12.1(b), or the dissolution of any other Group Member.
(iv) Transfer by the General Partner of all or any part of its General Partner Interest to another Person as set forth in Section 4.6.
(v) Amendment of this Agreement.
Appears in 1 contract
Sources: Limited Partnership Agreement (Nextera Energy Partners, Lp)
Management. (a) The Managing General Partner of the Partnership generally shall conduct, direct and manage all activities of the Partnership generally, and the Managing General Partner of each Series shall conduct, direct and manage all activities of the Series for which it serves as Managing General PartnerPartnership. Except as otherwise expressly provided in this Agreement, (i) all management powers over the business and affairs of the Partnership generally shall be exclusively vested in the Managing General Partner of the Partnership generallyPartner, and no Limited Partner or other General Partner shall have any management power over the business and affairs of (or authority to bind) the Partnership generally and (ii) all management powers over the business and affairs of each Series shall be exclusively vested in the Managing General Partner of such Series, and no Limited Partner or other General Partner shall have any management power over the business and affairs of (or authority to bind) such SeriesPartnership. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or that are granted to a the Managing General Partner under any other provision of this Agreement, each the Managing General Partner, subject to any approval required by Section 7.4, Section 7.5 or any other provision of this Agreement7.3, shall have full power and authority to do all things and on such terms as it determines determines, in its sole discretion, to be necessary or appropriate to conduct the business of the Partnership generally or the applicable Series, as the case may bePartnership, to exercise all powers set forth in Section 2.5 and to effectuate the purposes set forth in Section 2.4, including the following:
(i) the making of any expenditures, the lending or borrowing of money, the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtedness, including indebtedness that is convertible or exchangeable into Partnership Securities or options, rights, warrants or appreciation rights relating to Partnership Securities, and the incurring of any other obligations;
(ii) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership and each Series (other than in connection with the matters set forth in Section 9.3)Partnership;
(iii) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the applicable Series Partnership or the merger or other combination of the Partnership with or into another PersonPerson (the matters described in this clause (iii) being subject, however, to any prior approval that may be required by Section 7.3 and Article XIV);
(iv) the use of the assets of the applicable Series Partnership (including cash on hand) for any purpose consistent with the terms of this Agreement, including the financing of the conduct of the operations of the Partnership Group; subject to Section 7.6(a), the lending of funds to other Persons; the repayment or guarantee of obligations of any Group Member and the making of Capital Contributions to any Group Member;
(v) the negotiation, execution and performance of any contracts, conveyances or other instruments on behalf (including instruments that limit the liability of the Partnership generally under contractual arrangements to all or particular assets of the applicable SeriesPartnership, with the other party to the contract to have no recourse against the Managing Partner or its assets other than their interest in the Partnership, even if same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case);
(vi) the distribution of cash or property of the applicable SeriesPartnership cash;
(vii) the selection and dismissal of employees (including employees having such as titles as the Managing Partner may determine in its sole discretion) and agents, outside attorneys, accountants, consultants and contractors and the determination of their compensation and other terms of employment or hiring;
(viii) the maintenance of separate or joint insurance policies for the benefit of the PartnershipPartnership Group, any Series, any the Partners or any and Indemnitees;
(viiiix) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies companies, corporations or other relationships (including the acquisition of interests in, and the contributions of property to, the Partnership’s Subsidiaries from time to time) subject to the restrictions set forth in Section 2.4;
(ixx) the control of any matters affecting the rights and obligations of the Partnership or the applicable SeriesPartnership, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigation, arbitration or mediation and the incurring of legal expense and the settlement of claims and litigation; and;
(xxi) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.7);
(xiii) the purchase, sale or other acquisition or disposition of Partnership Securities or options, rights, warrants or appreciation rights relating to Partnership Securities;
(xiv) the undertaking of any action in connection with the Partnership’s participation in the management of the Partnership Group through its directors, officers or employees or the Partnership’s direct or indirect ownership of the Group Members, including all things described in or contemplated by the Registration Statement and the agreements described in or filed as exhibits to the Registration Statement; and
(xv) cause to be registered for resale under the Securities Act and applicable state or non-U.S. securities laws, any securities of, or any securities convertible or exchangeable into securities of, the Partnership held by any Person, including the Managing Partner or any Affiliate of the Managing Partner.
(b) In exercising its authority under this Agreement, the Managing Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner (including the Managing Partner) of any action taken (or not taken) by it. The Managing Partner and the Partnership shall not have any liability to a Limited Partner for monetary damages, equitable relief or otherwise for losses sustained, liabilities incurred or benefits not derived by such Limited Partner in connection with such decisions so long as the Managing Partner has acted pursuant to its authority under this Agreement.
(c) Notwithstanding any other provision of this Agreement, the Delaware Limited Partnership Act or any applicable law, rule or regulation, each of the Partners and each other Person who may acquire an interest in Partnership Securities hereby (i) approves, ratifies and confirms the execution, delivery and performance by the parties thereto of the Purchase and Sale Agreement, the Investment Agreement, the Exchange Agreement, the Tax Receivable Agreement, the Group Partnership Agreements and the other agreements described in or filed as exhibits to the Registration Statement that are related to the transactions contemplated by the Registration Statement; (ii) agrees that the Managing Partner (on its own or through its delegation of such authority to any officer of the Partnership) is authorized to execute, deliver and perform the agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership, in each case in such form and with such terms as it in its sole discretion shall determine, without any further act, approval or vote of the Partners or the other Persons who may acquire an interest in Partnership Securities; and (iii) agrees that the execution, delivery or performance by the Managing Partner, any Group Member or any Affiliate of any of them, of this Agreement or any agreement authorized or permitted under this Agreement (including the exercise by the Managing Partner or any Affiliate of the Managing Partner of the rights accorded pursuant to Article XV), shall not constitute a breach by the Managing Partner of any duty that the Managing Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement (or any other agreements) or of any duty existing at law, in equity or otherwise.
Appears in 1 contract
Management. (a) The Managing General Partner of the Partnership generally shall conduct, direct and manage all activities of the Partnership generally, and the Managing General Partner of each Series shall conduct, direct and manage all activities of the Series for which it serves as Managing General Partner. Except as otherwise expressly provided in this Agreement, (i) all management powers over full, complete and exclusive discretion to manage and control the business and affairs of the Partnership generally are and shall be exclusively vested in the Managing General Partner of the Partnership generallyPartner, and no Limited Partner or other General Partner shall have any right to participate in or exercise control or management power over the business and affairs of the Partnership.
(i) The General Partner may not be removed by the Limited Partners with or authority to bind) the Partnership generally and without cause.
(ii) all management powers over the business and affairs of each Series shall be exclusively vested in the Managing General Partner of such Series, and no Limited Partner or other General Partner shall have any management power over the business and affairs of (or authority to bind) such Series. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or that which are granted to a Managing the General Partner under any other provision of this Agreement, each Managing the General Partner, subject to any approval required by Section 7.4, Section 7.5 or any other provision of this Agreement, Partner shall have full power and authority to do all things and on such terms as it determines to be deemed necessary or appropriate desirable by it to conduct the business of the Partnership generally or the applicable Series, as the case may bePartnership, to exercise all powers set forth in Section 2.5 3.2 and to effectuate the purposes set forth in Section 2.43.1, including the followingincluding:
(i1) the making of any expenditures, the lending or borrowing of money, including making prepayments on loans and borrowing money to permit the Partnership to make distributions to its Partners in such amounts as will permit the General Partner (so long as the General Partner qualifies as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Section 4981 of the Code) and to make distributions to its Stockholders in amounts sufficient to permit the General Partner to maintain REIT status,
(2) the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, ,
(3) the issuance of evidences evidence of indebtedness and (including the securing of the same by a Lien or encumbrance on the Partnership’s assets), and
(4) the incurring of any other obligationsobligations it deems necessary for the conduct of the activities of the Partnership, including the payment of all expenses associated with the General Partner;
(iiB) the acquisition, purchase, ownership, operation, leasing and disposition of any real property and any other property or assets, including mortgages and real estate-related notes, whether directly or indirectly;
(C) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership and each Series (other than in connection with or the matters set forth in Section 9.3)General Partner;
(iiiD) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any all or substantially all of the assets of the applicable Series Partnership (including the exercise or grant of any conversion, option, privilege, or subscription right or other right available in connection with any assets at any time held by the Partnership) or the merger merger, consolidation or other combination (each a “Business Combination”) of the Partnership with or into another PersonEntity on such terms as the General Partner deems proper; provided, however, that the General Partner shall be required to send to each Limited Partner a notice of such proposed Business Combination no less than 15 days prior to the record date for the vote of the General Partner’s Stockholders on such Business Combination, if any;
(ivE) the use of the assets of the applicable Series Partnership (including cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms it sees fit, including,
(1) the financing of the conduct of the operations of the General Partner, the Partnership or any of the Partnership’s Subsidiaries,
(2) the lending of funds to other Persons (including the Subsidiaries of the Partnership and/or the General Partner) and the repayment of obligations of the Partnership and its Subsidiaries and any other Person in which it has an equity investment, and
(3) the making of capital contributions to its Subsidiaries;
(vF) the expansion, development, redevelopment, construction, leasing, repair, rehabilitation, repositioning, alteration, demolition or improvement of any property in which the Partnership or any Subsidiary of the Partnership owns an interest;
(G) the negotiation, execution execution, and performance of any contracts, conveyances or other instruments on behalf that the General Partner considers useful or necessary to the conduct of the Partnership generally Partnership’s operations or the applicable Seriesimplementation of the General Partner’s powers under this Agreement, including contracting with contractors, developers, consultants, accountants, legal counsel, other professional advisors and other agents and the payment of their expenses and compensation out of the Partnership’s assets;
(viH) the distribution of Partnership cash or property of the applicable Seriesother Partnership assets in accordance with this Agreement;
(viiI) holding, managing, investing and reinvesting cash and other assets of the Partnership;
(J) the collection and receipt of revenues and income of the Partnership;
(K) the establishment of one or more divisions of the Partnership, the selection and dismissal of employees of the Partnership (including employees having titles such as “president,” “vice president,” “secretary” and “treasurer” of the Partnership), and agents, outside attorneys, accountants, consultants and contractors of the Partnership, and the determination of their compensation and other terms of employment or engagement;
(L) the maintenance of separate or joint such insurance policies for the benefit of the Partnership, any Series, any Partnership and the Partners and directors and officers thereof as it deems necessary or any Indemniteesappropriate;
(viiiM) the formation of, or acquisition of an interest (including non-voting interests in entities controlled by Affiliates of the Partnership or third parties) in, and the contribution of property to, any further Entities or other relationships that it deems desirable, including the acquisition of interests in, and the contributions of funds or property to, or making of loans to, its Subsidiaries and any further limited other Person from time to time, or general partnershipsthe incurrence of indebtedness on behalf of such Persons or the guarantee of the obligations of such Persons; provided, joint ventureshowever, corporationsthat, limited liability companies as long as the General Partner has determined to elect to qualify as a REIT or other relationships subject to continue to qualify as a REIT, the restrictions set forth Partnership may not engage in Section 2.4any such formation, acquisition or contribution that would cause the General Partner to fail to qualify as a REIT;
(ixN) the control of any matters affecting the rights and obligations of the Partnership Partnership, including
(1) the settlement, compromise, submission to arbitration or any other form of dispute resolution, or abandonment of, any claim, cause of action, liability, debt or damages, due or owing to or from the applicable SeriesPartnership,
(2) the commencement or defense of suits, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigationlegal proceedings, administrative proceedings, arbitration or mediation and other forms of dispute resolution, and
(3) the representation of the Partnership in all suits or legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, the incurring of legal expense expenses, and the settlement of claims and litigation; and
(x) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(O) the undertaking of any action in connection with the Partnership’s direct or indirect investment in its Subsidiaries or any other Person (including the contribution or loan of funds by the Partnership to such Persons);
(P) the determination of the fair market value of any Partnership property distributed in kind using such reasonable method of valuation as the General Partner, in its sole discretion, may adopt;
(Q) the exercise, directly or indirectly, through any attorney-in-fact acting under a general or limited power of attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(R) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(S) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest pursuant to contractual or other arrangements with such Person;
(T) the making, execution and delivery of any and all deeds, leases, notes, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate, in the judgment of the General Partner, for the accomplishment of any of the foregoing;
(U) the issuance of additional Partnership Units in connection with Capital Contributions by Additional Limited Partners and additional Capital Contributions by Partners pursuant to Article 4;
(V) the authorization, issuance, sale, redemption or purchase of any Partnership Units or any securities of the Partnership;
(W) the opening of bank accounts on behalf of, and in the name of, the Partnership and its Subsidiaries; and
(X) the amendment and restatement of Exhibit A to reflect accurately at all times the Percentage Interests of the Partners as the same are adjusted from time to time to the extent necessary to reflect redemptions, the issuance of Partnership Units, the admission of any Additional Limited Partner or any Substituted Limited Partner or otherwise, which amendment and restatement, notwithstanding anything in this Agreement to the contrary, shall not be deemed an amendment of this Agreement, as long as the matter or event being reflected in Exhibit A otherwise is authorized by this Agreement.
(b) (i) Each of the Limited Partners agree that the General Partner is authorized to execute, deliver and perform the above-mentioned agreements and transactions on behalf of the Partnership without any further act, approval or vote of the Partners, notwithstanding any other provision of this Agreement to the fullest extent permitted under the Act or other applicable law, rule or regulation.
Appears in 1 contract
Sources: Limited Partnership Agreement (Preferred Apartment Communities Inc)
Management. (a) The Managing General Partner of the Partnership generally shall conduct, direct and manage all activities of the Partnership generally, and the Managing General Partner of each Series shall conduct, direct and manage all activities of the Series for which it serves as Managing General Partner. A. Except as otherwise expressly provided in this Agreement, (i) including but not limited to Section 13.9, all management powers over the business and affairs of the Partnership generally are and shall be exclusively vested in the Managing General Partner of the Partnership generallyPartner, and no Limited Partner or other General nor any Preferred Limited Partner shall have any right to participate in or exercise control or management power over the business and affairs of (or authority to bind) the Partnership generally and (ii) all management powers over the business and affairs of each Series shall be exclusively vested in the Managing Partnership. The General Partner of such Series, and no may not be removed by the Limited Partner Partners or other General Partner shall have any management power over the business and affairs of (Preferred Limited Partners with or authority to bind) such Serieswithout cause. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or that which are granted to a Managing the General Partner under any other provision of this Agreement, each Managing the General Partner, subject to any approval required by Section 7.4, Section 7.5 or any other provision of this Agreement, Partner shall have full power and authority to do all things and on such terms as it determines to be deemed necessary or appropriate desirable by it to conduct the business of the Partnership generally or the applicable Series, as the case may bePartnership, to exercise all powers set forth in Section 2.5 3.2 hereof and to effectuate the purposes set forth in Section 2.43.1 hereof, including the followingincluding, without limitation:
(ia) the making of any expenditures, the lending or borrowing of money, including, without limitation, making prepayments on loans and borrowing money to permit the Partnership to make distributions to its Partners in such amounts as will permit the Company (so long as the Company qualifies as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Section 4981 of the Code) and to make distributions to its shareholders in amounts sufficient to permit the Company to maintain REIT status, (b) the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, (c) the issuance of evidences evidence of indebtedness (including the securing of the same by deed, mortgage, deed of trust or other lien or encumbrance on the Partnership’s assets) and (d) the incurring of any other obligationsobligations it deems necessary for the conduct of the activities of the Partnership;
(ii2) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership and each Series (other than in connection with the matters set forth in Section 9.3)Partnership;
(iii3) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the applicable Series Partnership (including, the exercise or grant of any conversion, option, privilege, or subscription right or other right available in connection with any assets at any time held by the Partnership) or the merger or other combination of the Partnership with or into another Personentity;
(iv4) the use of the assets of the applicable Series (including Partnership including, without limitation, cash on hand) hand for any purpose consistent with the terms of this AgreementAgreement and on any terms it sees fit, including without limitation, the financing of the conduct of the operations of the Company, the Partnership or any of the Partnership’s Subsidiaries, the lending of funds to other Persons (including without limitation, the Subsidiaries of the Partnership and/or the Company) and the repayment of obligations of the Partnership and its Subsidiaries and any other Person in which it has an equity investment, and the making of capital contributions to its Subsidiaries;
(v5) the management, operation, expansion, development, construction, leasing, landscaping, repair, alteration, demolition or improvement of any real property or improvements owned by the Partnership or any Subsidiary of the Partnership;
(6) the negotiation, execution execution, and performance of any contracts, conveyances or other instruments on behalf that the General Partner considers useful or necessary to the conduct of the Partnership generally Partnership’s operations or the applicable Seriesimplementation of the General Partner’s powers under this Agreement, including contracting with contractors, developers, consultants, accountants, legal counsel, other professional advisors and other agents and the payment of their expenses and compensation out of the Partnership’s assets;
(vi7) the distribution of Partnership cash or property of the applicable Seriesother Partnership assets in accordance with this Agreement;
(vii8) holding, managing, investing, and reinvesting cash and other assets of the Partnership;
(9) the collection and receipt of revenues and income of the Partnership;
(10) the establishment of one or more divisions of the Partnership, the selection and dismissal of employees of the Partnership including, without limitation, employees having titles such as “president,” “vice president,” “secretary” and “treasurer” of the Partnership, and agents, outside attorneys, accountants, consultants and contractors of the Partnership, and the determination of their compensation and other terms of employment or engagement;
(11) the maintenance of separate or joint such insurance policies for the benefit of the Partnership, any Series, any Partnership and the Partners as it deems necessary or any Indemniteesappropriate;
(viii12) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies ventures or other relationships subject that it deems desirable (including, without limitation, the acquisition of interests in, and the contributions of property to, its Subsidiaries and any other Person in which it has an equity investment from time to the restrictions set forth in Section 2.4time);
(ix13) the control of any matters affecting the rights and obligations of the Partnership or the applicable SeriesPartnership, including the bringing and defending settlement, compromise, submission to arbitration or any other form of actions at law dispute resolution, or in equity and otherwise engaging in abandonment of, any claim, cause of action, liability, debt or damages, due or owing to or from the conduct Partnership, the commencement or defense of litigationsuits, legal proceedings, administrative proceedings, arbitration or mediation other forms of dispute resolution, and the representation of the Partnership in all suits or legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, the incurring of legal expense expenses, and the settlement of claims and litigation; and
(x) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(14) the undertaking of any action in connection with the Partnership’s direct or indirect investment in its Subsidiaries or any other Person (including, without limitation, the contribution or loan of funds by the Partnership to such Persons);
(15) the determination of the fair market value of any Partnership property distributed in kind using such reasonable method of valuation as the General Partner may adopt;
(16) the exercise, directly or indirectly, through any attorney-in-fact acting under a general or limited power of attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(17) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(18) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest pursuant to contractual or other arrangements with such Person;
(19) the making, execution and delivery of any and all deeds, leases, notes, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate, in the judgment of the General Partner, for the accomplishment of any of the foregoing; and
(20) the issuance of additional OP Units, as appropriate, as contemplated by the Master Agreement and/or in connection with Capital Contributions by Additional Limited Partners and additional Capital Contributions by Partners pursuant to Article 4 hereof; and
(21) The opening of bank accounts on behalf of, and in the name of, the Partnership and its Subsidiaries.
B. Each of the Limited Partners agrees that the General Partner is authorized to execute, deliver and perform the above-mentioned agreements and transactions on behalf of the Partnership without any further act, approval or vote of the Partners, notwithstanding any other provision of this Agreement to the fullest extent permitted under the Act or other applicable law, rule or regulation. The execution, delivery or performance by the General Partner or the Partnership of any agreement authorized or permitted under this Agreement shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement or of any duty stated or implied by law or equity.
C. At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain at any and all times working capital accounts and other cash or similar balances in such amount as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
D. In exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner of any action taken by it; provided, that if the General Partner decides to refinance (directly or indirectly) any outstanding indebtedness of the Partnership, the General Partner shall use reasonable efforts to structure such refinancing in a manner that minimizes any adverse tax consequences resulting therefrom to the Limited Partners. The General Partner and the Partnership shall not have liability to a Limited Partner under any circumstances as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner taken pursuant to its authority under and in accordance with this Agreement.
Appears in 1 contract
Sources: Limited Partnership Agreement (Ramco Gershenson Properties Trust)
Management. (a) The Managing General Partner of the Partnership generally shall conduct, direct and manage all activities of the Partnership generally, and the Managing General Partner of each Series shall conduct, direct and manage all activities of the Series for which it serves as Managing General Partner. Except as otherwise expressly provided in this Agreement, (i) all management powers over the business and affairs of the Partnership generally are and shall be exclusively vested in the Managing General Partner of the Partnership generallyPartner, and no Limited Partner or other General Partner shall have any right to participate in or exercise control or management power over the business and affairs of (or authority to bind) the Partnership generally and (ii) all management powers over the business and affairs of each Series shall be exclusively vested in the Managing Partnership. The General Partner may not be removed by the Partners with or without cause, except with the consent of such Series, and no Limited Partner or other the General Partner shall have any management power over the business and affairs of (or authority to bind) such SeriesPartner. In addition to the powers now or hereafter granted to a general partner of a limited partnership under applicable law or that are granted to a Managing the General Partner under any other provision of this Agreement, each Managing the General Partner, subject to any approval required by the other provisions hereof including Section 7.4, Section 7.5 or any other provision of this Agreement7.3, shall have full power and authority to do all things and on such terms as it determines to be deemed necessary or appropriate desirable by it to conduct the business of the Partnership generally or the applicable Series, as the case may bePartnership, to exercise all powers set forth in Section 2.5 3.2 hereof and to effectuate the purposes set forth in Section 2.43.1, including including, without limitation, taking the followingactions and decisions set forth below:
(i) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money or selling assets to permit the Partnership to make distributions in such amounts as will permit the General Partner (so long as the General Partner desires to maintain or restore its qualification as a REIT) to avoid the payment of any income or excise tax under the Code and to make distributions to its stockholders sufficient to permit the General Partner to maintain or restore REIT qualification or otherwise to satisfy the REIT Requirements), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtedness (including the securing of same by deed to secure debt, mortgage, deed of trust or other lien or encumbrance on the Partnership’s assets) and the incurring of any other obligationsobligations that it deems necessary for the conduct of the activities of the Partnership;
(ii) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership, the registration of any class of securities of the Partnership under the Exchange Act and each Series (other than in connection with the matters set forth in Section 9.3)listing of any debt securities of the Partnership on any exchange;
(iii) subject to Section 11.2, the acquisition, dispositionsale, mortgagelease, pledgetransfer, encumbranceexchange or other disposition of any, hypothecation all or exchange of any or substantially all of the assets of the applicable Series Partnership (including, but not limited to, the exercise or grant of any conversion, option, privilege or subscription right or any other right available in connection with any assets at any time held by the Partnership) or the merger merger, consolidation, reorganization or other combination of the Partnership with or into another Personentity;
(iv) the mortgage, pledge, encumbrance or hypothecation of any assets of the Partnership, the assignment of any assets of the Partnership in trust for creditors or on the promise of the assignee to pay the debts of the Partnership, the use of the assets of the applicable Series Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms that it sees fit, including, without limitation, the financing of the operations and activities of the General Partner, the Partnership or any of the Partnership’s Subsidiaries, the lending of funds to other Persons (including, without limitation, the Partnership’s Subsidiaries) and the repayment of obligations of the Partnership, its Subsidiaries and any other Person in which the Partnership has an equity investment, and the making of capital contributions to and equity investments in the Partnership’s Subsidiaries;
(v) the use of the assets of the Partnership (including, without limitation, cash on hand) for any purpose consistent with the terms of this Agreement and on any terms it sees fit, including, without limitation, the financing of the conduct of the operations of the General Partner, the Partnership or any of the Partnership’s Subsidiaries, the lending of funds to other Persons (including, without limitation, the General Partner and its Subsidiaries and the Partnership’s Subsidiaries) and the repayment of obligations of the Partnership and its Subsidiaries and any other Person in which the Partnership has an equity investment and the making of capital contributions to its Subsidiaries;
(vi) the management, operation, leasing, landscaping, harvesting, repair, alteration, demolition, replacement or improvement of any Property, including, without limitation, any Contributed Property, or other asset of the Partnership or any Subsidiary, whether pursuant to a Services Agreement or otherwise;
(vii) the negotiation, execution and performance of any contracts, leases, conveyances or other instruments on behalf that the General Partner considers useful or necessary to the conduct of the Partnership generally Partnership’s operations or the applicable Seriesimplementation of the General Partner’s powers under this Agreement, including contracting with contractors, developers, consultants, governmental authorities, accountants, legal counsel and other professional advisors and other agents and the payment of their expenses and compensation out of the Partnership’s assets;
(viviii) the distribution of cash or property other assets of the applicable SeriesPartnership in accordance with this Agreement, the holding, management, investment and reinvestment of cash and other assets of the Partnership and the collection and receipt of revenues, rents and income of the Partnership;
(viiix) the maintenance of separate or joint such insurance policies for the benefit of the PartnershipPartnership and the Partners (including, any Serieswithout limitation, any Partners the General Partner) as the General Partner deems necessary or any Indemniteesappropriate, including, without limitation, (i) casualty, liability and other insurance on the Properties and (ii) liability insurance for the Indemnitees hereunder;
(viiix) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies companies, joint ventures or other relationships subject that the General Partner deems desirable (including, without limitation, the acquisition of interests in, and the contributions of property to, any Subsidiary and any other Person in which it has an equity investment from time to time); provided, however, that as long as the restrictions set forth General Partner desires to maintain or restore its qualification as a REIT, the General Partner and the Partnership may not engage in Section 2.4any such formation, acquisition or contribution that would cause it to fail to qualify as a REIT;
(ixxi) the filing of applications, communicating and otherwise dealing with any and all governmental agencies having jurisdiction over, or in any way affecting, the Partnership’s assets or any other aspect of the Partnership business;
(xii) the taking of any action necessary or appropriate to comply with all regulatory requirements applicable to the Partnership in respect of its business, including preparing or causing to be prepared all financial statements required under applicable regulations and contractual undertakings and all reports, filings and documents, if any, required under the Exchange Act, the Securities Act, or by National Securities Exchange requirements;
(xiii) the control of any matters affecting the rights and obligations of the Partnership or the applicable SeriesPartnership, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigationsettlement, compromise, submission to arbitration or mediation any other form of dispute resolution, or abandonment, of any claim, cause of action, liability, debt or damages, due or owing to or from the Partnership, the commencement or defense of suits, legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, and the representation of the Partnership in all suits or legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, the incurring of legal expense expense, and the settlement of claims and litigation; and
(x) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xiv) the undertaking of any action in connection with the Partnership’s direct or indirect investment in any Subsidiary or any other Person (including, without limitation, the contribution or loan of funds by the Partnership to such Persons);
(xv) except as otherwise specifically set forth in this Agreement, the determination of the fair market value of any Partnership property distributed in-kind using such reasonable method of valuation as it may adopt; provided, that such methods are otherwise consistent with the requirements of this Agreement;
(xvi) the enforcement of any rights against any Partner pursuant to representations, warranties, covenants and indemnities relating to such Partner’s contribution of property or assets to the Partnership;
(xvii) the exercise, directly or indirectly, through any attorney-in-fact acting under a general or limited power-of-attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(xviii) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(xix) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest, pursuant to contractual or other arrangements with such Person;
(xx) the making, execution and delivery of any and all deeds, leases, notes, deeds to secure Debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate in the judgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement;
(xxi) the issuance of additional Partnership Units, as appropriate and in the General Partner’s sole and absolute discretion, in connection with Capital Contributions by Additional Limited Partners and additional Capital Contributions by Partners pursuant to Article IV hereof;
(xxii) the selection and dismissal of agents, outside attorneys, accountants, consultants and contractors of the Partnership, the determination of their compensation and other terms of hiring;
(xxiii) the distribution of cash to acquire Partnership Units held by a Limited Partner in connection with a Limited Partner’s exercise of its Redemption right under Section 8.6;
(xxiv) maintaining or causing to be maintained, the books and records of the Partnership or the Transfer Agent to reflect accurately at all times the Capital Contributions and Percentage Interests of the Partners as the same are adjusted from time to time to the extent necessary to reflect sales, exchanges, conversions or other Transfers, redemptions, Capital Contributions, the number of Partnership Units (including any issuance thereof), the admission of any Additional Limited Partner or any Substituted Limited Partner or otherwise;
(xxv) the determination regarding whether a payment to a Partner who exercises its Redemption right under Section 8.6 that is assumed by the General Partner will be paid in the form of the Cash Amount or the REIT Shares Amount, except as such determination may be limited by Section 8.6.
(xxvi) the collection and receipt of revenues and income of the Partnership;
(xxvii) the registration of any class of securities of the Partnership under the Securities Act or the Exchange Act;
(xxviii) the entering into of listing agreements with any National Securities Exchange and the listing of any securities of the Partnership on any such exchange;
(xxix) an election to dissolve the Partnership pursuant to Section 13.1(d); and
(xxx) the taking of any action necessary or appropriate to enable the General Partner to qualify or continue to qualify as a REIT (so long as the General Partner desires to maintain or restore its qualification as a REIT).
(b) Each of the Limited Partners agrees that, except as provided in Section 7.3 hereof, the General Partner is authorized to execute, deliver and perform the above-mentioned agreements and transactions on behalf of the Partnership without any further act, approval or vote of the Partners, notwithstanding any other provision of this Agreement, the Act or any applicable law, rule or regulation and, in the absence of any specific corporate action on the part of the General Partner to the contrary, the taking of any action or the execution of any such document or writing by an officer of the General Partner, in the name and on behalf of the General Partner, in its capacity as the general partner of the Partnership, shall conclusively evidence (1) the approval thereof by the General Partner, in its capacity as the general partner of the Partnership, (2) the General Partner’s determination that such action, document or writing is necessary or desirable to conduct the business and affairs of the Partnership, exercise the powers of the Partnership under this Agreement and the Act or effectuate the purposes of the Partnership, or any other determination by the General Partner required by this Agreement in connection with the taking of such action or execution of such document or writing, and (3) the authority of such officer with respect thereto.
(c) At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain working capital and other reserves in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
(d) In exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner (including the General Partner) of any action taken (or not taken) by it. Except as may be provided in a separate written agreement between the Partnership and the Limited Partners, the General Partner and the Partnership shall not have liability to a Limited Partner under any circumstances as a result of a tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner pursuant to its authority under this Agreement or applicable Law; provided, that the General Partner has acted in good faith and pursuant to its authority under this Agreement.
Appears in 1 contract
Management. (a) The Managing General Partner of the Partnership generally shall conduct, direct and manage all activities of the Partnership generally, and the Managing General Partner of each Series shall conduct, direct and manage all activities of the Series for which it serves as Managing General Partner. Except as otherwise expressly provided in this Agreement, (i) all management powers over the business and affairs of the Partnership generally are and shall be exclusively vested in the Managing General Partner of the Partnership generallyPartner, and no Limited Partner or other General Partner shall have any right to participate in or exercise control or management power over the business and affairs of (or authority to bind) the Partnership generally and (ii) all management powers over the business and affairs of each Series shall be exclusively vested in the Managing Partnership. The General Partner may not be removed by the Limited Partners, except with the consent of such Series, and no Limited Partner or other the General Partner shall have any management power over the business and affairs of (or authority to bind) such SeriesPartner. In addition to the powers now or hereafter granted to a general partner of a limited partnership under applicable law or that are granted to a Managing the General Partner under any other provision of this Agreement, each Managing the General Partner, subject to any approval required by the other provisions hereof including Section 7.4, 7.03 and Section 7.5 or any other provision of this Agreement11.02, shall have full power and authority to do all things and on such terms as it determines to be deemed necessary or appropriate desirable by it to conduct the business of the Partnership generally or the applicable Series, as the case may bePartnership, to exercise all powers set forth in Section 2.5 3.02 hereof and to effectuate the purposes set forth in Section 2.43.01 hereof, including the followingincluding, without limitation:
(i) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money or selling assets to permit the Partnership to make distributions to its Partners in such amounts as will permit the General Partner (so long as the General Partner desires to maintain or restore its qualification as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Code Section 4981) and to make distributions to its stockholders sufficient to permit the General Partner to maintain or restore REIT qualification or otherwise to satisfy the REIT Requirements), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtedness (including the securing of same by deed to secure debt, mortgage, deed of trust or other lien or encumbrance on the Partnership’s assets) and the incurring of any other obligationsobligations that it deems necessary for the conduct of the activities of the Partnership;
(ii) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership, the registration of any class of securities of the Partnership under the Exchange Act and each Series (other than in connection with the matters set forth in Section 9.3)listing of any debt securities of the Partnership on any exchange;
(iii) subject to Section 11.02 hereof, the acquisition, dispositionsale, mortgagelease, pledgetransfer, encumbranceexchange or other disposition of any, hypothecation all or exchange of any or substantially all of the assets of the applicable Series Partnership (including, but not limited to, the exercise or grant of any conversion, option, privilege or subscription right or any other right available in connection with any assets at any time held by the Partnership) or the merger merger, consolidation, reorganization or other combination of the Partnership with or into another Personentity;
(iv) the mortgage, pledge, encumbrance or hypothecation of any assets of the Partnership, the use of the assets of the applicable Series Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms that it sees fit, including, without limitation, the financing of the operations and activities of the General Partner, the Partnership or any of the Partnership’s Subsidiaries, the lending of funds to other Persons (including, without limitation, the Partnership’s Subsidiaries) and the repayment of obligations of the Partnership, its Subsidiaries and any other Person in which the Partnership has an equity investment, and the making of capital contributions to and equity investments in the Partnership’s Subsidiaries;
(v) the use of the assets of the Partnership (including, without limitation, cash on hand) for any purpose consistent with the terms of this Agreement and on any terms it sees fit, including, without limitation, the financing of the conduct of the operations of the General Partner, the Partnership or any of the Partnership’s Subsidiaries, the lending of funds to other Persons (including, without limitation, the General Partner and its Subsidiaries and the Partnership’s Subsidiaries) and the repayment of obligations of the Partnership and its Subsidiaries and any other Person in which the Partnership has an equity investment and the making of capital contributions to its Subsidiaries;
(vi) the management, operation, leasing, landscaping, repair, alteration, demolition, replacement or improvement of any Property, including, without limitation, any Contributed Property, or other asset of the Partnership or any Subsidiary, whether pursuant to a Services Agreement or otherwise;
(vii) the negotiation, execution and performance of any contracts, leases, conveyances or other instruments on behalf that the General Partner considers useful or necessary to the conduct of the Partnership generally Partnership’s operations or the applicable Seriesimplementation of the General Partner’s powers under this Agreement, including contracting with contractors, developers, consultants, accountants, legal counsel, other professional advisors and other agents and the payment of their expenses and compensation out of the Partnership’s assets;
(viviii) the distribution of Partnership cash or property other Partnership assets in accordance with this Agreement, the holding, management, investment and reinvestment of cash and other assets of the applicable SeriesPartnership and the collection and receipt of revenues, rents and income of the Partnership;
(viiix) the maintenance of separate or joint such insurance policies for the benefit of the PartnershipPartnership and the Partners as the General Partner deems necessary or appropriate, any Seriesincluding, any Partners or any Indemniteeswithout limitation, (i) casualty, liability and other insurance on the Properties and (ii) liability insurance for the Indemnitees hereunder;
(viiix) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies companies, joint ventures or other relationships subject that the General Partner deems desirable (including, without limitation, the acquisition of interests in, and the contributions of property to, any Subsidiary and any other Person in which it has an equity investment from time to time); provided, however, that as long as the restrictions set forth General Partner has determined to continue to qualify as a REIT, the General Partner may not engage in any such formation, acquisition or contribution that would cause it to fail to qualify as a REIT within the meaning of Code Section 2.4856(a) (so long as the General Partner desires to maintain its qualification as a REIT);
(ixxi) the filing of applications, communicating and otherwise dealing with any and all governmental agencies having jurisdiction over, or in any way affecting, the Partnership’s assets or any other aspect of the Partnership business;
(xii) the control of any matters affecting the rights and obligations of the Partnership or the applicable SeriesPartnership, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigationsettlement, compromise, submission to arbitration or mediation any other form of dispute resolution, or abandonment, of any claim, cause of action, liability, debt or damages, due or owing to or from the Partnership, the commencement or defense of suits, legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, and the representation of the Partnership in all suits or legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, the incurring of legal expense expense, and the settlement of claims and litigation; and
(x) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xiii) the undertaking of any action in connection with the Partnership’s direct or indirect investment in any Subsidiary or any other Person (including, without limitation, the contribution or loan of funds by the Partnership to such Persons);
(xiv) except as otherwise specifically set forth in this Agreement, the determination of the fair market value of any Partnership property distributed in-kind using such reasonable method of valuation as it may adopt; provided, that such methods are otherwise consistent with the requirements of this Agreement;
(xv) the enforcement of any rights against any Partner pursuant to representations, warranties, covenants and indemnities relating to such Partner’s contribution of property or assets to the Partnership;
(xvi) the exercise, directly or indirectly, through any attorney-in-fact acting under a general or limited power-of-attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(xvii) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(xviii) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest, pursuant to contractual or other arrangements with such Person;
(xix) the making, execution and delivery of any and all deeds, leases, notes, deeds to secure Debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate in the judgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement;
(xx) the issuance of additional Partnership Units, as appropriate and in the General Partner’s sole and absolute discretion, in connection with Capital Contributions by Additional Limited Partners and additional Capital Contributions by Partners pursuant to Article IV hereof;
(xxi) the selection and dismissal of Company Employees (including, without limitation, employees having titles or offices such as president, vice president, secretary and treasurer), and agents, outside attorneys, accountants, consultants and contractors of the Partnership or the General Partner, the determination of their compensation and other terms of employment or hiring and the delegation to any such Company Employee the authority to conduct the business of the Partnership in accordance with the terms of this Agreement;
(xxii) the distribution of cash to acquire Partnership Units held by a Limited Partner in connection with a Limited Partner’s exercise of its Redemption right under Section 8.06 hereof;
(xxiii) the amendment and restatement of Exhibit A hereto to reflect accurately at all times the Capital Contributions and Percentage Interests of the Partners as the same are adjusted from time to time to the extent necessary to reflect redemptions, Capital Contributions, the issuance of Partnership Units, the admission of any Additional Limited Partner or any Substituted Limited Partner or otherwise, which amendment and restatement, notwithstanding anything in this Agreement to the contrary, shall not be deemed an amendment to this Agreement, as long as the matter or event being reflected in Exhibit A hereto otherwise is authorized by this Agreement;
(xxiv) the determination regarding whether a payment to a Partner who exercises its Redemption Right under Section 8.06 that is assumed by the General Partner will be paid in the form of the Cash Amount or the REIT Shares Amount, except as such determination may be limited by Section 8.06;
(xxv) the collection and receipt of revenues and income of the Partnership;
(xxvi) the registration of any class of securities of the Partnership under the Securities Act or the Exchange Act, and the listing of any debt securities of the Partnership on any exchange;
(xxvii) an election to dissolve the Partnership pursuant to Section 13.01(b) hereof;
(xxviii) the taking of any action necessary or appropriate to enable the General Partner to qualify as a REIT (so long as the General Partner desires to maintain its qualification as a REIT); and
(xxix) the taking of any action necessary or appropriate to prevent the Partnership or the General Partner from being subject to regulation under the Investment Company Act.
(b) Each of the Limited Partners agrees that, except as provided in Section 7.03 hereof, the General Partner is authorized to execute, deliver and perform the above-mentioned agreements and transactions on behalf of the Partnership without any further act, approval or vote of the Partners, notwithstanding any other provision of this Agreement, the Act or any applicable law, rule or regulation.
(c) At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain working capital and other reserves in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
(d) In exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner (including the General Partner) of any action taken (or not taken) by it. Except as may be provided in a separate written agreement between the Partnership and the Limited Partners, the General Partner and the Partnership shall not have liability to a Limited Partner under any circumstances as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner pursuant to its authority under this Agreement provided, that the General Partner has acted in good faith and pursuant to its authority under this Agreement.
Appears in 1 contract
Sources: Limited Partnership Agreement (Hannon Armstrong Sustainable Infrastructure Capital, Inc.)
Management. (a) The Managing General Partner of the Partnership generally shall conduct, direct and manage all activities of the Partnership generally, and the Managing General Partner of each Series shall conduct, direct and manage all activities of the Series for which it serves as Managing General Partner. A. Except as otherwise expressly provided in this Agreement, (i) all management powers over the business and affairs of the Partnership generally are and shall be exclusively vested in the Managing General Partner of the Partnership generallyPartner, and no Limited Partner or other General Partner shall have any right to participate in or exercise control or management power over the business and affairs of (or authority to bind) the Partnership generally and (ii) all management powers over the business and affairs of each Series shall be exclusively vested in the Managing Partnership. The General Partner may not be removed by the Limited Partners with or without cause, except with the consent of such Series, and no Limited Partner or other the General Partner shall have any management power over the business and affairs of (or authority to bind) such SeriesPartner. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or that which are granted to a Managing the General Partner under any other provision of this Agreement, each Managing the General Partner, subject to any approval required by Section 7.4, Section 7.5 or any the other provision of this Agreementprovisions hereof including Sections 7.3 and 11.2, shall have full power and authority to do all things and on such terms as it determines to be deemed necessary or appropriate desirable by it to conduct the business of the Partnership generally or (including, without limitation, all actions consistent with allowing the applicable Series, REIT Shares Issuer at all times to qualify as a REIT unless the case may beREIT {10654250;3} 27 DocID: 4848-4047-1218.3 Shares Issuer voluntarily terminates its REIT status), to exercise all powers set forth in Section 2.5 3.2 and to effectuate the purposes set forth in Section 2.43.1, including the followingincluding, without limitation:
(i1) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money to permit the Partnership to make distributions to its Partners in such amounts as will permit the REIT Shares Issuer (so long as the REIT Shares Issuer has determined to qualify as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Section 4981 of the Code) and to make distributions to its stockholders sufficient to permit the REIT Shares Issuer to maintain REIT status), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtedness (including the securing of same by mortgage, deed of trust or other lien or encumbrance on all or any of the Partnership’s assets) and the incurring of any other obligationsobligations it deems necessary for the conduct of the activities of the Partnership;
(ii2) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership, the registration of any class of securities of the Partnership under the Exchange Act, and each Series (other than in connection with the matters set forth in Section 9.3)listing of any debt securities of the Partnership on any exchange;
(iii3) subject to the provisions of Section 11.2, the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the applicable Series Partnership or the merger or other combination of the Partnership with or into another Personentity;
(iv4) the acquisition, disposition, mortgage, pledge, encumbrance or hypothecation of all or any assets of the Partnership, and the use of the assets of the applicable Series Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms it sees fit, including, without limitation, the financing of the conduct or the operations of the General Partner or the Partnership, the lending of funds to other Persons (including, without limitation, the General Partner or any Subsidiaries of the Partnership) and the repayment of obligations of the Partnership, any of its Subsidiaries and any other Person in which it has an equity investment, and the making of capital contributions to its Subsidiaries;
(v5) the management, operation, leasing, landscaping, repair, alteration, demolition or improvement of any real property or improvements owned by the Partnership or any Subsidiary of the Partnership;
(6) the negotiation, execution execution, and performance of any contracts, leases, conveyances or other instruments on behalf that the General Partner considers useful or necessary to the conduct of the Partnership generally Partnership’s operations or the applicable Series;implementation of the General Partner’s powers under this Agreement, including contracting with contractors, developers, consultants, accountants, legal counsel, other professional advisors and other agents and the payment of their expenses and compensation out of the Partnership’s assets; {10654250;3} 28 DocID: 4848-4047-1218.3
(vi7) the distribution of Partnership cash or property of the applicable Seriesother Partnership assets in accordance with this Agreement;
(vii8) the establishment of one or more divisions of the Partnership, the selection and dismissal of employees of the Partnership (including, without limitation, employees having titles such as “president,” “vice president,” “secretary” and “treasurer”), and agents, outside attorneys, accountants, consultants and contractors of the Partnership, the determination of their compensation and other terms of employment or hiring, including waivers of conflicts of interest and the payment of their expenses and compensation out of the Partnership’s assets;
(9) the maintenance of separate or joint such insurance policies for the benefit of the Partnership, any Series, any Partnership and the Partners and directors and officers of the Partnership or any Indemniteesthe General Partner as it deems necessary or appropriate;
(viii10) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, limited liability companies, joint ventures, corporations, limited liability companies corporations or other relationships subject that it deems desirable (including, without limitation, the acquisition of interests in, and the contributions of property to any Subsidiary and any other Person in which it has an equity investment from time to time); provided, that, as long as the restrictions set forth REIT Shares Issuer has determined to continue to qualify as a REIT, the Partnership may not engage in Section 2.4any such formation, acquisition or contribution that could cause the REIT Shares Issuer to fail to qualify as a REIT;
(ix11) the control of any matters affecting the rights and obligations of the Partnership or the applicable SeriesPartnership, including the bringing and defending settlement, compromise, submission to arbitration or any other form of actions at law dispute resolution, or in equity and otherwise engaging in abandonment of, any claim, cause of action, liability, debt or damages, due or owing to or from the conduct Partnership, the commencement or defense of litigationsuits, legal proceedings, administrative proceedings, arbitration or mediation other forms of dispute resolution, and the representation of the Partnership in all suits or legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, the incurring of legal expense expense, and the settlement of claims and litigation; and
(x) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(12) the undertaking of any action in connection with the Partnership’s direct or indirect investment in any Person (including, without limitation, contributing or loaning Partnership funds to, incurring indebtedness on behalf of, or guarantying the obligations of any such Persons);
(13) subject to the other provisions in this Agreement, the determination of the fair market value of any Partnership property distributed in kind using such reasonable method of valuation as it may adopt, provided, that such methods are otherwise consistent with requirements of this Agreement;
(14) the management, operation, leasing, landscaping, repair, alteration, demolition or improvement of any real property or improvements owned by the Partnership or any Subsidiary of the Partnership or any Person in which the Partnership has made a direct or indirect equity investment;
(15) holding, managing, investing and reinvesting cash and other assets of the Partnership; {10654250;3} 29 DocID: 4848-4047-1218.3
(16) the collection and receipt of revenues and income of the Partnership;
(17) the exercise, directly or indirectly through any attorney-in-fact acting under a general or limited power of attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(18) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(19) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest pursuant to contractual or other arrangements with such Person;
(20) the making, execution and delivery of any and all deeds, leases, notes, deeds to secure debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate in the judgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement;
(21) the issuance of additional Partnership Interests, as appropriate, in connection with the contribution of Additional Funds pursuant to Section 4.4;
(22) the distribution of cash to acquire OP Units held by a Limited Partner in connection with a Limited Partner’s exercise of its Redemption Right under Section 8.6 hereof;
(23) the amendment and restatement of Exhibit A hereto to reflect accurately at all times the Capital Contributions and Percentage Interests of the Partners as the same are adjusted from time to time to the extent necessary to reflect redemptions, Capital Contributions, the issuance of OP Units, the admission of any Additional Limited Partner or any Substituted Limited Partner or otherwise, which amendment and restatement, notwithstanding anything in this Agreement to the contrary, shall not be deemed an amendment to this Agreement, as long as the matter or event being reflected in Exhibit A hereto otherwise is authorized by this Agreement;
(24) the taking of any and all acts and things necessary or prudent to ensure that the Partnership will not be classified as a “publicly traded partnership” under Section 7704 of the Code; and
(25) the delegation to another Person of any powers now or hereafter granted to the General Partner.
B. Each of the Limited Partners agrees that the General Partner is authorized to execute, deliver and perform the above-mentioned agreements and transactions on behalf of the Partnership without any further act, approval or vote of the Partners, notwithstanding any other provisions of this Agreement (except {10654250;3} 30 DocID: 4848-4047-1218.3 as provided in Section 7.3 or 11.2), the Act or any applicable law, rule or regulation to the fullest extent permitted under the Act or other applicable law, rule or regulation. The execution, delivery or performance by the General Partner or the Partnership of any agreement authorized or permitted under this Agreement shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement or of any duty stated or implied by law or equity.
C. At all times from and after the date hereof, the General Partner may cause the Partnership to obtain and maintain (i) casualty, liability and other insurance on the Investments and (ii) liability insurance for the Indemnities hereunder.
D. At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain working capital and other reserves in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
E. Each of the Limited Partners acknowledges that, in exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner (including the General Partner) of any action taken (or not taken) by the General Partner. The General Partner and the Partnership shall not have liability to a Partner under this Agreement as a result of any income tax liability incurred by a Limited Partner as a result of an action (or inaction) by the General Partner pursuant to its authority under this Agreement. There may be circumstances in which the fiduciary duties that the General Partner owes to the Limited Partners conflicts with any duties that the officers and directors of the General Partner or the REIT Shares Issuer owe to their stockholders. For so long as the General Partner owns a controlling interest in the Partnership, any such conflict that cannot be resolved in a manner not adverse to either such stockholders or the Limited Partners shall be resolved in favor of such stockholders.
F. Except as otherwise provided herein, to the extent the duties of the General Partner require expenditures of funds to be paid to third parties, the General Partner shall not have any obligations hereunder except to the extent that Partnership funds are reasonably available to it for the performance of such duties, and nothing herein contained shall be deemed to authorize or require the General Partner, in its capacity as such, to expend its individual funds for payment to third parties or to undertake any individual liability or obligation on behalf of the Partnership.
Appears in 1 contract
Sources: Agreement of Limited Partnership (Steadfast Apartment REIT, Inc.)
Management. (a) The Managing General Partner of the Partnership generally shall conduct, direct and manage all activities of the Partnership generally, and the Managing General Partner of each Series shall conduct, direct and manage all activities of the Series for which it serves as Managing A. ▇▇▇▇▇▇ ▇▇ General Partner. Except as otherwise expressly provided in this Agreement, (i) all management powers over the business and affairs of the Partnership generally are and shall be exclusively vested in the Managing General Partner of the Partnership generallyPartner, and no Limited Partner or other General Partner shall have any right to participate in or exercise control or management power over the business and affairs of (or authority to bind) the Partnership generally and (ii) all management powers over the business and affairs of each Series shall be exclusively vested in the Managing Partnership. The General Partner of such Series, and no may not be removed by the Limited Partner Partners with or other General Partner shall have any management power over the business and affairs of (or authority to bind) such Serieswithout cause. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or that which are granted to a Managing the General Partner under any other provision of this Agreement, each Managing the General Partner, subject to any approval required by Section 7.4, Section 7.5 or any other provision of this AgreementSections 7.3 and 7.6 below, shall have full power and authority to do all things and on such terms as it determines to be deemed necessary or appropriate desirable by it to conduct the business of the Partnership generally or the applicable Series, as the case may bePartnership, to exercise all powers set forth in Section 2.5 3.2 hereof and to effectuate the purposes set forth in Section 2.43.1 hereof, including the followingincluding, without limitation:
(i1) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money to permit the Partnership to make distributions to its Partners in such amounts as will permit the General Partner Entity (as long as the General Partner Entity qualifies as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Section 4981 of the Code) and to make distributions to its shareholders sufficient to permit the General Partner Entity to maintain REIT status), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtedness (including the securing of same by deed to secure debt, mortgage, deed of trust or other lien or encumbrance on the Partnership's assets) and the incurring of any other obligationsobligations the General Partner deems necessary for the conduct of the activities of the Partnership;
(ii2) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership and each Series (other than in connection with the matters set forth in Section 9.3)Partnership;
(iii) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the applicable Series or the merger or other combination of the Partnership with or into another Person;
(iv) the use of the assets of the applicable Series (including cash on hand) for any purpose consistent with the terms of this Agreement;
(v) the negotiation, execution and performance of any contracts, conveyances or other instruments on behalf of the Partnership generally or the applicable Series;
(vi) the distribution of cash or property of the applicable Series;
(vii) the maintenance of separate or joint insurance policies for the benefit of the Partnership, any Series, any Partners or any Indemnitees;
(viii) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies or other relationships subject to the restrictions set forth in Section 2.4;
(ix) the control of any matters affecting the rights and obligations of the Partnership or the applicable Series, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigation, arbitration or mediation and the incurring of legal expense and the settlement of claims and litigation; and
(x) the indemnification of any Person against liabilities and contingencies to the extent permitted by law.
Appears in 1 contract
Sources: Agreement of Limited Partnership (Camden Property Trust)
Management. (a) The Managing General Partner of the Partnership generally shall conduct, direct and manage all activities of the Partnership generally, and the Managing General Partner of each Series shall conduct, direct and manage all activities of the Series for which it serves as Managing General Partner. A. Except as otherwise expressly provided in this Agreement, (i) all management powers over the business and affairs of the Partnership generally shall be are exclusively vested in the Managing General Partner of the Partnership generally, and no Limited Partner or other General Partner shall have any right to participate in or exercise control or management power over the business and affairs of (or authority to bind) the Partnership generally and (ii) all management powers over the business and affairs of each Series shall be exclusively vested in the Managing Partnership. The General Partner may not be removed by the Limited Partners with or without cause, except with the consent of such Series, and no Limited Partner or other the General Partner shall have any management power over the business and affairs of (or authority to bind) such SeriesPartner. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or that which are granted to a Managing the General Partner under any other provision of this Agreement, each Managing the General Partner, subject to any approval required by the other provisions hereof including Section 7.4, Section 7.5 or any other provision of this Agreement7.3, shall have full power and authority to do all things and on such terms as it determines to be deemed necessary or appropriate desirable by it to conduct the business of the Partnership generally or the applicable Series, as the case may bePartnership, to exercise all powers set forth in Section 2.5 3.2 hereof and to effectuate the purposes set forth in Section 2.43.1 hereof, including the followingincluding, without limitation:
(i1) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money to permit the Partnership to make distributions to its Partners in such amounts as will permit the General Partner (as long as the General Partner has determined to qualify as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Section 4981 of the Code) and to make distributions to its stockholders sufficient to permit the General Partner to maintain REIT status), the assumption or guarantee of, of or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtedness (including the securing of same by mortgage, deed of trust or other lien or encumbrance on the Partnership's assets) and the incurring of any other obligationsobligations it deems necessary for the conduct of the activities of the Partnership;
(ii2) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership and each Series (other than in connection with the matters set forth in Section 9.3)Partnership;
(iii3) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the applicable Series Partnership or the merger or other combination of the Partnership with or into another Personentity. In the event of any such sale, exchange, disposition or other transfer of any property of the Partnership, the Partnership shall no later than 15 days after the end of the calendar quarter in which such sale, exchange, disposition or other transfer becomes a taxable event to Partners, to the extent of the net cash Proceeds of such sale, exchange, disposition or other transfer, effect a distribution of cash in an amount which shall be such that the pro rata share thereof received by each Partner shall equal or exceed the total liability of such Partner for federal, state and local income and franchise taxes resulting from such sale, exchange, disposition or other transfer and from such distribution;
(iv4) the mortgage, pledge, encumbrance or hypothecation of any assets of the Partnership, and the use of the assets of the applicable Series Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms it sees fit, including without limitation, the financing of the conduct or the operations of the General Partner and of the Partnership, the lending of funds to other Persons and the repayment of obligations of the Partnership and any other Person in which it has an equity investment;
(v5) the negotiation, execution execution, and performance of any contracts, leases, conveyances or other instruments on behalf that the General Partner considers useful or necessary to the conduct of the Partnership generally Partnership's operations or the applicable Seriesimplementation of the General Partner's powers under this Agreement;
(vi6) the distribution of Partnership cash or property of the applicable Seriesother Partnership assets in accordance with this Agreement;
(vii7) the appointment of a manager or advisor to manage the business of the Partnership and the entering into of a management agreement in connection therewith and the selection and dismissal of employees of the Partnership or of the General Partner (including, without limitation, employees having titles such as "president," "vice president," "secretary" and "treasurer") and agents, outside attorneys, accountants, consultants and contractors of the General Partner or of the Partnership and the determination of their compensation, management fees and other terms of engagement, employment or hiring;
(8) the maintenance of separate or joint such insurance policies for the benefit of the Partnership, any Series, any Partnership and the Partners as it deems necessary or any Indemniteesappropriate;
(viii9) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies ventures or other relationships subject that it deems desirable (including, without limitation, the acquisition of interests in, and the contributions of property to any Subsidiary and any other Person in which it has an equity investment from time to time); provided that as long as the restrictions set forth General Partner has determined to continue to qualify as a REIT, the General Partner may not engage in Section 2.4any such formation, acquisition or contribution that would cause it to fail to qualify as a REIT;
(ix10) the control of any all matters affecting the rights and obligations of the Partnership or the applicable SeriesPartnership, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigation, arbitration or mediation litigation and the incurring of legal expense and the settlement of claims and litigation; and
(x) , and the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(11) the undertaking of any action in connection with the Partnership's direct or indirect investment in any Person (including, without limitation, the contribution or loan of funds by the Partnership to such Persons); and
(12) Subject to the other provisions in this Agreement, the determination of the fair market value of any Partnership property distributed in kind using such reasonable method of valuation as it may adopt, provided that such methods are otherwise consistent with the requirements of this Agreement.
B. Each of the Limited Partners agrees that the General Partner is authorized to execute, deliver and perform the above-mentioned agreements and transactions on behalf of the Partnership without any further act, approval or vote of the Partners, notwithstanding any other provisions of this Agreement (except as provided in Section 7.3), the Act or any applicable law, rule or regulation. None of the execution, delivery and performance by the General Partner or the Partnership of any agreement authorized or permitted under this Agreement shall constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement or of any duty stated or implied by law or equity.
C. At all times from and after the date hereof, the General Partner may cause the Partnership to obtain and maintain (i) casualty, liability and other insurance on the properties of the Partnership and (ii) liability insurance for the Indemnitees hereunder.
D. At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain working capital reserves in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
E. In exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner (including the General Partner) of any action taken by it. The General Partner and the Partnership shall not have liability to a Partner under any circumstances as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner pursuant to its authority under this Agreement.
Appears in 1 contract
Sources: Limited Partnership Agreement (Cedar Income Fund LTD)
Management. (a) The Managing General Partner of the Partnership generally shall conduct, direct and manage all activities of the Partnership generally, and the Managing General Partner of each Series shall conduct, direct and manage all activities of the Series for which it serves as Managing General Partner. A. Except as otherwise expressly provided in this Agreement, (i) all management powers over the business and affairs of the Partnership generally are and shall be exclusively vested in the Managing General Partner of the Partnership generallyPartner, and no Limited Partner or other General Partner shall have any right to participate in or exercise control or management power over the business and affairs of (or authority to bind) the Partnership generally and (ii) all management powers over the business and affairs of each Series shall be exclusively vested in the Managing Partnership. The General Partner may not be removed by the Partners with or without cause, except with the Consent of such Series, and no Limited Partner or other the General Partner shall have any management power over the business and affairs of (or authority to bind) such SeriesPartner. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or that are granted to a Managing the General Partner under any other provision of this Agreement, each Managing the General Partner, subject to any approval required by the other provisions hereof including Section 7.4, Section 7.5 or any other provision of this Agreement7.3, shall have full power and authority to do all things and on such terms as it determines to be deemed necessary or appropriate desirable by it to conduct the business of the Partnership generally or the applicable Series, as the case may bePartnership, to exercise all powers set forth in Section 2.5 3.2 hereof and to effectuate the purposes set forth in Section 2.43.1 hereof, including the followingincluding, without limitation:
(i1) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money to permit the Partnership to make distributions to its Partners in such amounts as will permit the Previous General Partner (so long as the Previous General Partner qualifies as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Code Section 4981) and to make distributions to its shareholders sufficient to permit the Previous General Partner to maintain REIT status or otherwise to satisfy the REIT Requirements), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtedness (including the securing of same by deed to secure debt, mortgage, deed of trust or other lien or encumbrance on the Partnership’s assets) and the incurring of any other obligationsobligations that it deems necessary for the conduct of the activities of the Partnership;
(ii2) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership and each Series (other than in connection with the matters set forth in Section 9.3)Partnership;
(iii3) the acquisition, dispositionsale, mortgagetransfer, pledge, encumbrance, hypothecation exchange or exchange other disposition of any or all of the assets of the applicable Series Partnership (including, but not limited to, the exercise or grant of any conversion, option, privilege or subscription right or any other right available in connection with any assets at any time held by the Partnership) or the merger merger, consolidation, reorganization or other combination of the Partnership with or into another Personentity;
(iv4) the mortgage, pledge, encumbrance or hypothecation of any assets of the Partnership, the use of the assets of the applicable Series Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms that it sees fit, including, without limitation, the financing of the operations and activities of the General Partner, the Partnership or any of the Partnership’s Subsidiaries, the lending of funds to other Persons (including, without limitation, the Partnership’s Subsidiaries) and the repayment of obligations of the Partnership, its Subsidiaries and any other Person in which it has an equity investment, and the making of capital contributions to and equity investments in the Partnership’s Subsidiaries;
(v5) the management, operation, leasing, landscaping, repair, alteration, demolition, replacement or improvement of any Property, including, without limitation, any Contributed Property, or other asset of the Partnership or any Subsidiary;
(6) the negotiation, execution and performance of any contracts, leases, conveyances or other instruments on behalf that the General Partner considers useful or necessary to the conduct of the Partnership generally Partnership’s operations or the applicable Seriesimplementation of the General Partner’s powers under this Agreement, including contracting with contractors, developers, consultants, accountants, legal counsel, other professional advisors and other agents and the payment of their expenses and compensation out of the Partnership’s assets;
(vi7) the distribution of Partnership cash or property other Partnership assets in accordance with this Agreement, the holding, management, investment and reinvestment of cash and other assets of the applicable SeriesPartnership, and the collection and receipt of revenues, rents and income of the Partnership;
(vii8) the selection and dismissal of employees of the Partnership or the General Partner (including, without limitation, employees having titles or offices such as “president,” “vice president,” “secretary” and “treasurer”), and agents, outside attorneys, accountants, consultants and contractors of the Partnership or the General Partner and the determination of their compensation and other terms of employment or hiring;
(9) the maintenance of separate or joint such insurance policies for the benefit of the Partnership, any Series, any Partnership and the Partners as it deems necessary or any Indemniteesappropriate;
(viii10) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies companies, joint ventures or other relationships subject that it deems desirable (including, without limitation, the acquisition of interests in, and the contributions of property to, any Subsidiary and any other Person in which it has an equity investment from time to time); provided, however, that, as long as the restrictions set forth Previous General Partner has determined to continue to qualify as a REIT, the General Partner may not engage in any such formation, acquisition or contribution that would cause the Previous General Partner to fail to qualify as a REIT or the General Partner to fail to qualify as a “qualified REIT subsidiary” within the meaning of Code Section 2.4856(i)(2);
(ix11) the control of any matters affecting the rights and obligations of the Partnership or the applicable SeriesPartnership, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigationsettlement, compromise, submission to arbitration or mediation any other form of dispute resolution, or abandonment, of any claim, cause of action, liability, debt or damages, due or owing to or from the Partnership, the commencement or defense of suits, legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, and the representation of the Partnership in all suits or legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, the incurring of legal expense expense, and the settlement of claims and litigation; and
(x) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(12) the undertaking of any action in connection with the Partnership’s direct or indirect investment in any Subsidiary or any other Person (including, without limitation, the contribution or loan of funds by the Partnership to such Persons);
(13) the determination of the fair market value of any Partnership property distributed in kind using such reasonable method of valuation as it may adopt; provided that such methods are otherwise consistent with the requirements of this Agreement;
(14) the enforcement of any rights against any Partner pursuant to representations, warranties, covenants and indemnities relating to such Partner’s contribution of property or assets to the Partnership;
(15) the exercise, directly or indirectly, through any attorney- in-fact acting under a general or limited power of attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(16) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(17) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest, pursuant to contractual or other arrangements with such Person;
(18) the making, execution and delivery of any and all deeds, leases, notes, deeds to secure debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate in the judgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement;
(19) the issuance of additional Partnership Units, as appropriate and in the General Partner’s sole and absolute discretion, in connection with Capital Contributions by Additional Limited Partners and additional Capital Contributions by Partners pursuant to Article 4 hereof; and
(20) an election to dissolve the Partnership pursuant to Section 13.1.C hereof.
B. Each of the Limited Partners agrees that, except as provided in Section 7.3 hereof, the General Partner is authorized to execute, deliver and perform the above-mentioned agreements and transactions on behalf of the Partnership without any further act, approval or vote of the Partners, notwithstanding any other provision of this Agreement (except as provided in Section 7.3 hereof), the Act or any applicable law, rule or regulation. The execution, delivery or performance by the General Partner or the Partnership of any agreement authorized or permitted under this Agreement shall not constitute a breach by the General Partner of any duty that The General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement or of any duty stated or implied by law or equity.
C. At all times from and after the date hereof, the General Partner may cause the Partnership to obtain and maintain (i) casualty, liability and other insurance on the Properties of the Partnership and (ii) liability insurance for the Indemnitees hereunder.
D. At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain working capital and other reserves in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
E. In exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner (including the General Partner) of any action taken by it. The General Partner and the Partnership shall not have liability to a Limited Partner under any circumstances as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner pursuant to its authority under this Agreement so long as the action or inaction is taken in good faith.
Appears in 1 contract
Sources: Limited Partnership Agreement (Apartment Investment & Management Co)
Management. (ai) The Managing General Partner of the Partnership generally shall conduct, direct and manage all activities of the Partnership generally, and the Managing General Partner of each Series shall conduct, direct and manage all activities of the Series for which it serves as Managing General Partner. Except as otherwise expressly provided in this Agreement, (i) all management powers over full, complete and exclusive discretion to manage and control the business and affairs of the Partnership generally are and shall be exclusively vested in the Managing General Partner of the Partnership generallyPartner, and no Limited Partner or other General Partner shall have any right to participate in or exercise control or management power over the business and affairs of (or authority to bind) the Partnership. Except as provided, any action taken by the General Partner in connection with management of the Partnership generally and requires the consent of the Associate General Partner.
(ii) all management powers over the business and affairs of each Series shall be exclusively vested in the Managing The General Partner of such Series, and no Limited may not be removed by the Associate General Partner or other General Partner shall have any management power over the business and affairs of Limited Partners with or without cause.
(or authority to bindiii) such Series. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or that which are granted to a Managing the General Partner under any other provision of this Agreement, each Managing the General Partner, subject to any approval required by Section 7.4, Section 7.5 or any other provision of this Agreement7.11, shall have full power and authority to do all things and on such terms as it determines to be deemed necessary or appropriate desirable by it to conduct the business of the Partnership generally or the applicable Series, as the case may bePartnership, to exercise all powers set forth in Section 2.5 3.2 hereof and to effectuate the purposes set forth in Section 2.43.1 hereof, including the followingincluding, without limitation:
(i1) the making of any expenditures, the lending or borrowing of money, including, without limitation, making prepayments on loans and borrowing money to permit the Partnership to make distributions to its Partners in such amounts as will permit the General Partner (so long as the General Partner qualifies as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Section 4981 of the Code) and to make distributions to its stockholders in amounts sufficient to permit the General Partner to maintain REIT status,
(2) the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, ,
(3) the issuance of evidences evidence of indebtedness and (including the securing of the same by deed, mortgage, deed of trust or other lien or encumbrance on the Partnership’s assets) and
(4) the incurring of any other obligationsobligations it deems necessary for the conduct of the activities of the Partnership, including the payment of all expenses associated with the General Partner;
(iiB) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership and each Series (other than in connection with or the matters set forth in Section 9.3)General Partner;
(iiiC) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any all or substantially all of the assets of the applicable Series Partnership (including the exercise or grant of any conversion, option, privilege, or subscription right or other right available in connection with any assets at any time held by the Partnership) or the merger merger, consolidation or other combination (a “ Business Combination”) of the Partnership with or into another PersonEntity on such terms as the General Partner deems proper, provided that the General Partner shall be required to send to the Associate General Partner and each Limited Partner a notice of such proposed Business Combination no less than 15 days prior to the record date for the vote of the General Partner’s stockholders on such Business Combination, if any;
(ivD) the use of the assets of the applicable Series Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms it sees fit, including, without limitation,
(1) the financing of the conduct of the operations of the General Partner, the Partnership or any of the Partnership’s Subsidiaries,
(2) the lending of funds to other Persons (including, without limitation, the Subsidiaries of the Partnership and/or the General Partner) and the repayment of obligations of the Partnership and its Subsidiaries and any other Person in which it has an equity investment, and
(3) the making of capital contributions to its Subsidiaries;
(vE) the expansion, development, construction, leasing, repair, alteration, demolition or improvement of any property in which the Partnership or any Subsidiary of the Partnership owns an interest;
(F) the negotiation, execution execution, and performance of any contracts, conveyances or other instruments on behalf that the General Partner considers useful or necessary to the conduct of the Partnership generally Partnership’s operations or the applicable Seriesimplementation of the General Partner’s powers under this Agreement, including contracting with contractors, developers, consultants, accountants, legal counsel, other professional advisors and other agents and the payment of their expenses and compensation out of the Partnership’s assets;
(viG) the distribution of Partnership cash or property of the applicable Seriesother Partnership assets in accordance with this Agreement;
(viiH) holding, managing, investing and reinvesting cash and other assets of the Partnership;
(I) the collection and receipt of revenues and income of the Partnership;
(J) the establishment of one or more divisions of the Partnership, the selection and dismissal of employees of the Partnership (including, without limitation, employees having titles such as “president,” “vice president,” “secretary” and “treasurer” of the Partnership), and agents, outside attorneys, accountants, consultants and contractors of the Partnership, and the determination of their compensation and other terms of employment or engagement;
(K) the maintenance of separate or joint such insurance policies for the benefit of the Partnership, any Series, any Partnership and the Partners and directors and officers thereof as it deems necessary or any Indemniteesappropriate;
(viiiL) the formation of, or acquisition of an interest (including non-voting interests in entities controlled by Affiliates of the Partnership or third parties) in, and the contribution of property to, any further Entities or other relationships that it deems desirable, including, without limitation, the acquisition of interests in, and the contributions of funds or property to, or making of loans to, its Subsidiaries and any further limited other Person from time to time, or general partnershipsthe incurrence of indebtedness on behalf of such Persons or the guarantee of the obligations of such Persons; provided that, joint venturesas long as the General Partner has determined to elect to qualify as a REIT or to continue to qualify as a REIT, corporationsthe Partnership may not engage in any such formation, limited liability companies acquisition or other relationships subject contribution that would cause the General Partner to the restrictions set forth in Section 2.4fail to qualify as a REIT;
(ixM) the control of any matters affecting the rights and obligations of the Partnership Partnership, including
(1) the settlement, compromise, submission to arbitration or any other form of dispute resolution, or abandonment of, any claim, cause of action, liability, debt or damages, due or owing to or from the applicable SeriesPartnership,
(2) the commencement or defense of suits, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigationlegal proceedings, administrative proceedings, arbitration or mediation and other forms of dispute resolution, and
(3) the representation of the Partnership in all suits or legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, the incurring of legal expense expenses, and the settlement of claims and litigation; and
(x) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(N) the undertaking of any action in connection with the Partnership’s direct or indirect investment in its Subsidiaries or any other Person (including, without limitation, the contribution or loan of funds by the Partnership to such Persons);
(O) the determination of the fair market value of any Partnership property distributed in kind using such reasonable method of valuation as the General Partner, in its sole discretion, may adopt;
(P) the exercise, directly or indirectly, through any attorney-in-fact acting under a general or limited power of attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(Q) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(R) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest pursuant to contractual or other arrangements with such Person;
(S) the making, execution and delivery of any and all deeds, leases, notes, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate, in the judgment of the General Partner, for the accomplishment of any of the foregoing;
(T) the issuance of additional Partnership Units in connection with Capital Contributions by Additional Limited Partners and additional Capital Contributions by Partners pursuant to Article 4 hereof;
(U) the opening of bank accounts on behalf of, and in the name of, the Partnership and its Subsidiaries; and
(V) the amendment and restatement of Exhibit A to reflect accurately at all times the Capital Contributions and Percentage Interests of the Partners as the same are adjusted from time to time to the extent necessary to reflect redemptions, Capital Contributions, the issuance of Partnership Units, the admission of any Additional Limited Partner or any Substituted Limited Partner or otherwise, which amendment and restatement, notwithstanding anything in this Agreement to the contrary, shall not be deemed an amendment of this Agreement, as long as the matter or event being reflected in Exhibit A otherwise is authorized by this Agreement.
(i) The Associate General Partner and each of the Limited Partners agree that the General Partner is authorized to execute, deliver and perform the above-mentioned agreements and transactions on behalf of the Partnership without any further act, approval or vote of the Partners, notwithstanding any other provision of this Agreement to the fullest extent permitted under the Act or other applicable law, rule or regulation.
(ii) The execution, delivery or performance by the General Partner or the Partnership of any agreement authorized or permitted under this Agreement shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement or of any duty stated or implied by law or equity.
(c) At all times from and after the date hereof, the General Partner at the expense of the Partnership, may or may not, cause the Partnership to obtain and maintain
(i) casualty, liability and other insurance on the properties of the Partnership;
(ii) liability insurance for the Indemnitees hereunder; and
(iii) such other insurance as the General Partner, in its sole and absolute discretion, determines to be appropriate and reasonable.
(d) At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain at any and all times working capital accounts and other cash or similar balances in such amount as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
(i) In exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner (including the General Partner) of any action taken (or not taken) by it. The General Partner and the Partnership shall not have liability to the Associate General Partner or any Limited Partner for monetary damages or otherwise for losses sustained, liabilities incurred or benefits not delivered by the Associate General Partner or such Limited Partner in connection with such decisions, provided that the General Partner has acted in good faith pursuant to its authority under this Agreement. The Limited Partners expressly acknowledge that the General Partner is acting on behalf of the Partnership, the General Partner, and the General Partner’s stockholders, collectively.
(ii) The General Partner and the Partnership shall not have liability to the Associate General Partner or any Limited Partner under any circumstances as a result of an income tax liability incurred by the Associate General Partner or such Limited Partner as a result of an action (or inaction) by the General Partner taken pursuant to its authority under and in accordance with this Agreement.
Appears in 1 contract
Sources: Limited Partnership Agreement (Lightstone Value Plus Real Estate Investment Trust Ii Inc)
Management. (ai) The Managing General Partner of the Partnership generally shall conduct, direct and manage all activities of the Partnership generally, and the Managing General Partner of each Series shall conduct, direct and manage all activities of the Series for which it serves as Managing General Partner. Except as otherwise expressly provided in this Agreement, (i) all management powers over full, complete and exclusive discretion to manage and control the business and affairs of the Partnership generally are and shall be exclusively vested in the Managing General Partner of the Partnership generallyPartner, and no Limited Partner or other General Partner shall have any right to participate in or exercise control or management power over the business and affairs of (or authority to bind) the Partnership generally and Partnership.
(ii) all management powers over the business and affairs of each Series shall be exclusively vested in the Managing The General Partner of such Series, and no may not be removed by the Limited Partner Partners with or other General Partner shall have any management power over the business and affairs of without cause.
(or authority to bindiii) such Series. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or that which are granted to a Managing the General Partner under any other provision of this Agreement, each Managing the General Partner, subject to any approval required by Section 7.4, Section 7.5 or any other provision of this Agreement7.11, shall have full power and authority to do all things and on such terms as it determines to be deemed necessary or appropriate desirable by it to conduct the business of the Partnership generally or the applicable Series, as the case may bePartnership, to exercise all powers set forth in Section 2.5 3.2 hereof and to effectuate the purposes set forth in Section 2.43.1 hereof, including the followingincluding, without limitation:
(i1) the making of any expenditures, the lending or borrowing of money, including, without limitation, making prepayments on loans and borrowing money to permit the Partnership to make distributions to its Partners in such amounts as will permit the General Partner (so long as the General Partner qualifies as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Section 4981 of the Code) and to make distributions to its stockholders in amounts sufficient to permit the General Partner to maintain REIT status,
(2) the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, ,
(3) the issuance of evidences evidence of indebtedness and (including the securing of the same by deed, mortgage, deed of trust or other lien or encumbrance on the Partnership’s assets), and
(4) the incurring of any other obligationsobligations it deems necessary for the conduct of the activities of the Partnership, including the payment of all expenses associated with the General Partner;
(iiB) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership and each Series (other than in connection with or the matters set forth in Section 9.3)General Partner;
(iiiC) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any all or substantially all of the assets of the applicable Series Partnership (including the exercise or grant of any conversion, option, privilege, or subscription right or other right available in connection with any assets at any time held by the Partnership) or the merger merger, consolidation or other combination (each a “ Business Combination ”) of the Partnership with or into another PersonEntity on such terms as the General Partner deems proper, provided that the General Partner shall be required to send to each Limited Partner a notice of such proposed Business Combination no less than 15 days prior to the record date for the vote of the General Partner’s stockholders on such Business Combination, if any;
(ivD) the use of the assets of the applicable Series Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms it sees fit, including, without limitation,
(1) the financing of the conduct of the operations of the General Partner, the Partnership or any of the Partnership’s Subsidiaries,
(2) the lending of funds to other Persons (including, without limitation, the Subsidiaries of the Partnership and/or the General Partner) and the repayment of obligations of the Partnership and its Subsidiaries and any other Person in which it has an equity investment, and
(3) the making of capital contributions to its Subsidiaries;
(vE) the expansion, development, construction, leasing, repair, alteration, demolition or improvement of any property in which the Partnership or any Subsidiary of the Partnership owns an interest;
(F) the negotiation, execution execution, and performance of any contracts, conveyances or other instruments on behalf that the General Partner considers useful or necessary to the conduct of the Partnership generally Partnership’s operations or the applicable Seriesimplementation of the General Partner’s powers under this Agreement, including contracting with contractors, developers, consultants, accountants, legal counsel, other professional advisors and other agents and the payment of their expenses and compensation out of the Partnership’s assets;
(viG) the distribution of Partnership cash or property of the applicable Seriesother Partnership assets in accordance with this Agreement;
(viiH) holding, managing, investing and reinvesting cash and other assets of the Partnership;
(I) the collection and receipt of revenues and income of the Partnership;
(J) the establishment of one or more divisions of the Partnership, the selection and dismissal of employees of the Partnership (including, without limitation, employees having titles such as “president,” “vice president,” “secretary” and “treasurer” of the Partnership), and agents, outside attorneys, accountants, consultants and contractors of the Partnership, and the determination of their compensation and other terms of employment or engagement;
(K) the maintenance of separate or joint such insurance policies for the benefit of the Partnership, any Series, any Partnership and the Partners and directors and officers thereof as it deems necessary or any Indemniteesappropriate;
(viiiL) the formation of, or acquisition of an interest (including non-voting interests in entities controlled by Affiliates of the Partnership or third parties) in, and the contribution of property to, any further Entities or other relationships that it deems desirable, including, without limitation, the acquisition of interests in, and the contributions of funds or property to, or making of loans to, its Subsidiaries and any further limited other Person from time to time, or general partnershipsthe incurrence of indebtedness on behalf of such Persons or the guarantee of the obligations of such Persons; provided that, joint venturesas long as the General Partner has determined to elect to qualify as a REIT or to continue to qualify as a REIT, corporationsthe Partnership may not engage in any such formation, limited liability companies acquisition or other relationships subject contribution that would cause the General Partner to the restrictions set forth in Section 2.4fail to qualify as a REIT;
(ixM) the control of any matters affecting the rights and obligations of the Partnership Partnership, including
(1) the settlement, compromise, submission to arbitration or any other form of dispute resolution, or abandonment of, any claim, cause of action, liability, debt or damages, due or owing to or from the applicable SeriesPartnership,
(2) the commencement or defense of suits, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigationlegal proceedings, administrative proceedings, arbitration or mediation and other forms of dispute resolution, and
(3) the representation of the Partnership in all suits or legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, the incurring of legal expense expenses, and the settlement of claims and litigation; and
(x) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(N) the undertaking of any action in connection with the Partnership’s direct or indirect investment in its Subsidiaries or any other Person (including, without limitation, the contribution or loan of funds by the Partnership to such Persons);
(O) the determination of the fair market value of any Partnership property distributed in kind using such reasonable method of valuation as the General Partner, in its sole discretion, may adopt;
(P) the exercise, directly or indirectly, through any attorney-in-fact acting under a general or limited power of attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(Q) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(R) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest pursuant to contractual or other arrangements with such Person;
(S) the making, execution and delivery of any and all deeds, leases, notes, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate, in the judgment of the General Partner, for the accomplishment of any of the foregoing;
(T) the issuance of additional Partnership Units in connection with Capital Contributions by Additional Limited Partners and additional Capital Contributions by Partners pursuant to Article 4 hereof; (U) the opening of bank accounts on behalf of, and in the name of, the Partnership and its Subsidiaries; and
(V) the amendment and restatement of Exhibit A to reflect accurately at all times the Capital Contributions and Percentage Interests of the Partners as the same are adjusted from time to time to the extent necessary to reflect redemptions, Capital Contributions, the issuance of Partnership Units, the admission of any Additional Limited Partner or any Substituted Limited Partner or otherwise, which amendment and restatement, notwithstanding anything in this Agreement to the contrary, shall not be deemed an amendment of this Agreement, as long as the matter or event being reflected in Exhibit A otherwise is authorized by this Agreement.
(b) (i) Each of the Limited Partners agree that the General Partner is authorized to execute, deliver and perform the above-mentioned agreements and transactions on behalf of the Partnership without any further act, approval or vote of the Partners, notwithstanding any other provision of this Agreement to the fullest extent permitted under the Act or other applicable law, rule or regulation.
Appears in 1 contract
Sources: Limited Partnership Agreement (Carter Validus Mission Critical REIT, Inc.)
Management. (a) The Managing General Partner of the Partnership generally shall conduct, direct and manage all activities of the Partnership generally, and the Managing General Partner of each Series shall conduct, direct and manage all activities of the Series for which it serves as Managing General Partner. A. Except as otherwise expressly provided in this Agreement, (i) all management powers over the business and affairs of the Partnership generally are and shall be exclusively vested in the Managing General Partner of the Partnership generallyPartner, and no Limited Partner or other General Partner shall have any right to participate in or exercise control or management power over the business and affairs of (or authority to bind) the Partnership generally and (ii) all management powers over the business and affairs of each Series shall be exclusively vested in the Managing Partnership. The General Partner may not be removed by the Partners with or without cause, except with the Consent of such Series, and no Limited Partner or other the General Partner shall have any management power over the business and affairs of (or authority to bind) such SeriesPartner. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or that are granted to a Managing the General Partner under any other provision of this Agreement, each Managing the General Partner, subject to any approval required by the other provisions hereof including Section 7.4, Section 7.5 or any other provision of this Agreement7.3, shall have full power and authority to do all things and on such terms as it determines to be deemed necessary or appropriate desirable by it to conduct the business of the Partnership generally or the applicable Series, as the case may bePartnership, to exercise all powers set forth in Section 2.5 3.2 hereof and to effectuate the purposes set forth in Section 2.43.1 hereof, including the followingincluding, without limitation:
(i1) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money to permit the Partnership to make distributions to its Partners in such amounts as will permit the Previous General Partner (so long as the Previous General Partner qualifies as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Code Section 4981) and to make distributions to its shareholders sufficient to permit the Previous General Partner to maintain REIT status or otherwise to satisfy the REIT Requirements), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtedness (including the securing of same by deed to secure debt, mortgage, deed of trust or other lien or encumbrance on the Partnership's assets) and the incurring of any other obligations;
obligations that it deems necessary for the conduct of the activities of the Partnership; (ii2) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership and each Series Partnership; (other than in connection with the matters set forth in Section 9.3);
(iii3) the acquisition, dispositionsale, mortgagetransfer, pledge, encumbrance, hypothecation exchange or exchange other disposition of any or all of the assets of the applicable Series Partnership (including, but not limited to, the exercise or grant of any conversion, option, privilege or subscription right or any other right available in connection with any assets at any time held by the Partnership) or the merger merger, consolidation, reorganization or other combination of the Partnership with or into another Person;
entity; (iv4) the mortgage, pledge, encumbrance or hypothecation of any assets of the Partnership, the use of the assets of the applicable Series Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this Agreement;
Agreement and on any terms that it sees fit, including, without limitation, the financing of the operations and activities of the General Partner, the Partnership or any of the Partnership's Subsidiaries, the lending of funds to other Persons (vincluding, without limitation, the Partnership's Subsidiaries) and the repayment of obligations of the Partnership, its Subsidiaries and any other Person in which it has an equity investment, and the making of capital contributions to and equity investments in the Partnership's Subsidiaries; (5) the management, operation, leasing, landscaping, repair, alteration, demolition, replacement or improvement of any Property, including, without limitation, any Contributed Property, or other asset of the Partnership or any Subsidiary; (6) the negotiation, execution and performance of any contracts, leases, conveyances or other instruments on behalf that the General Partner considers useful or necessary to the conduct of the Partnership generally Partnership's operations or the applicable Series;
implementation of the General Partner's powers under this Agreement, including contracting with contractors, developers, consultants, accountants, legal counsel, other professional advisors and other agents and the payment of their expenses and compensation out of the Partnership's assets; (vi7) the distribution of Partnership cash or property other Partnership assets in accordance with this Agreement, the holding, management, investment and reinvestment of cash and other assets of the applicable Series;
Partnership, and the collection and receipt of revenues, rents and income of the Partnership; (vii8) the selection and dismissal of employees of the Partnership or the General Partner (including, without limitation, employees having titles or offices such as "president," "vice president," "secretary" and "treasurer"), and agents, outside attorneys, accountants, consultants and contractors of the Partnership or the General Partner and the determination of their compensation and other terms of employment or hiring; (9) the maintenance of separate or joint such insurance policies for the benefit of the Partnership, any Series, any Partnership and the Partners as it deems necessary or any Indemnitees;
appropriate; (viii10) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies companies, joint ventures or other relationships subject that it deems desirable (including, without limitation, the acquisition of interests in, and the contributions of property to, any Subsidiary and any other Person in which it has an equity investment from time to time); PROVIDED, HOWEVER, that, as long as the restrictions set forth Previous General Partner has determined to continue to qualify as a REIT, the General Partner may not engage in any such formation, acquisition or contribution that would cause the Previous General Partner to fail to qualify as a REIT or the General Partner to fail to qualify as a "qualified REIT subsidiary" within the meaning of Code Section 2.4;
856(i)(2); (ix11) the control of any matters affecting the rights and obligations of the Partnership or the applicable SeriesPartnership, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigationsettlement, compromise, submission to arbitration or mediation any other form of dispute resolution, or abandonment, of any claim, cause of action, liability, debt or damages, due or owing to or from the Partnership, the commencement or defense of suits, legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, and the representation of the Partnership in all suits or legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, the incurring of legal expense expense, and the settlement of claims and litigation; and
(x) the indemnification of any Person against liabilities and contingencies to the extent permitted by law.; 31
Appears in 1 contract
Sources: Limited Partnership Agreement (Apartment Investment & Management Co)
Management. (a) The Managing General Partner of the Partnership generally shall conduct, direct and manage all activities of the Partnership generally, and the Managing General Partner of each Series shall conduct, direct and manage all activities of the Series for which it serves as Managing General Partner. Except as otherwise expressly provided in this Agreement, (i) all management powers over the business and affairs of the Partnership generally are and shall be exclusively vested in the Managing General Partner. The General Partner of may not be removed by the Partnership generally, and no Limited Partner Partners with or other General Partner shall have any management power over the business and affairs of (or authority to bind) the Partnership generally and (ii) all management powers over the business and affairs of each Series shall be exclusively vested in the Managing General Partner of such Series, and no Limited Partner or other General Partner shall have any management power over the business and affairs of (or authority to bind) such Serieswithout cause. In addition to the powers now or hereafter granted a general partner of a limited partnership under the Act and other applicable law or that are granted to a Managing the General Partner under any other provision of this Agreement, each Managing the General Partner, subject to any approval required by Section 7.4, Section 7.5 or any other provision of this Agreement7.3 hereof, shall have full power and authority to do all things and on such terms as it determines to be deemed necessary or appropriate desirable by the General Partner to conduct the business of the Partnership generally or the applicable Series, as the case may bePartnership, to exercise all powers set forth in Section 2.5 2.3 hereof and to effectuate the purposes set forth in Section 2.42.2 hereof, including the followingincluding, without limitation:
(i) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money to permit the Partnership to make distributions to its Partners in such amounts as will permit the Company (so long as the Company qualifies as a REIT) to avoid liability for any federal income tax (including, for this purpose, any excise tax pursuant to Section 4981 of the Code) and to make distributions to its holders of REIT Shares sufficient to permit the Company to maintain REIT status), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtedness (including the securing of same by deed to secure debt, mortgage, deed of trust or other lien of encumbrance on the Partnership's properties) and the incurring of any other obligationsobligations it deems necessary for the conduct of the activities of the Partnership;
(ii) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership and each Series (other than in connection with the matters set forth in Section 9.3)Partnership;
(iii) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the applicable Series or the merger or other combination properties of the Partnership (including the exercise or grant of any conversion, option, privilege, or subscription right to any other right available in connection with or into another Personany properties at any time held by the Partnership);
(iv) the use of the assets of the applicable Series Partnership and Affiliates of the Partnership controlled by the Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this Agreement;
(v) either directly, or through one or more contractors (as provided in Section 7.1(a)(ix) hereof), the negotiationmanagement, execution and performance operation, leasing, landscaping, repair, alteration, demolition or improvement of any contracts, conveyances real property or other instruments on behalf of improvements owned by the Partnership generally or the applicable SeriesPartnership;
(vi) the distribution of Partnership cash or property of the applicable Seriesother Partnership properties in accordance with this Agreement;
(vii) holding, managing, investing and reinvesting cash and other assets of the Partnership;
(viii) the collection and receipt of revenues and income of the Partnership;
(ix) the selection and dismissal of employees, agents, outside attorneys, accountants, consultants and contractors of the Partnership or the General Partner and the determination of their compensation and other terms of employment or hiring;
(x) the maintenance of separate or joint such insurance policies for the benefit of the Partnership, any Series, any Partnership and the Partners as it deems necessary or any Indemniteesappropriate;
(viiixi) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies venture or other relationships subject to the restrictions set forth in Section 2.4that it deems desirable;
(ixxii) subject to Section 4.6 hereof, the control of any matters affecting the rights and obligations of the Partnership or the applicable SeriesPartnership, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigationsettlement, compromise, submission to arbitration or mediation any other form of dispute resolution, or abandonment of, any claim, cause of action, liability, debt or damages, due or owing to or from the Partnership, the commencement or defense of suits, legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, and the representation of the Partnership in all suits or legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, the incurring of legal expense expense, and the settlement of claims and litigation; and
(x) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xiii) the undertaking of any action in connection with the Partnership's direct or indirect investment in any other Person (including, without limitation, the contribution or loan of funds by the Partnership to such Persons);
(xiv) subject to Approval of the Special Committee, if required, the determination of the fair market value of any Partnership property distributed in kind using such reasonable method of valuation as it may adopt;
(xv) the exercise, directly or indirectly, through any attorney-in-fact acting under a general or limited power of attorney, of any right, including the right to vote, appurtenant to any asset, property or investment held by the Partnership;
(xvi) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any other Person in which the Partnership has a direct or indirect interest, or jointly with any other Person;
(xvii) the making, execution and delivery of any and all deeds, leases, notes, deeds to secure debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate in the judgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement;
(xviii) the merger, consolidation or other combination of the Partnership with any other Person; and
(xix) the undertaking of any action necessary to admit any Person as an Additional Limited Partner pursuant to Section 3.3 hereof and to admit a Substituted Limited Partner pursuant to Section 8.4 hereof.
(b) Each of the Limited Partners agrees that the General Partner is authorized to perform the above-mentioned powers and to enter into agreements and transactions in connection therewith on behalf of the Partnership without any further act, approval or vote of the Partners, notwithstanding any other provision of this Agreement (except as provided in Section 7.3) hereof, the Act or any applicable law, rule or regulation, to the fullest extent permitted under the Act or other applicable law. The execution, delivery or performance by the General Partner or the Partnership of any agreement authorized under this Agreement shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement or of any duty stated or implied by law or equity.
(c) At all times from and after the date hereof, the General Partner itself (subject to reimbursement by the Partnership) may, or may cause the Partnership to, obtain and maintain (i) casualty, liability and other insurance on the properties of the Partnership and (ii) to the extent available, liability insurance for the Indemnitees hereunder.
(d) At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain any and all reserves, working capital accounts and other cash or similar balances in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
(e) Except as otherwise expressly provided herein, in exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner of any action taken by it. The General Partner and the Partnership shall not have liability to a Limited Partner under any circumstances as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner pursuant to its authority under this Agreement.
Appears in 1 contract
Sources: Limited Partnership Agreement (Walden Residential Properties Inc)
Management. (a) The Managing General Partner of the Partnership generally shall conduct, direct and manage all activities of the Partnership generally, and the Managing General Partner of each Series shall conduct, direct and manage all activities of the Series for which it serves as Managing General Partner. Except as otherwise expressly provided in this Agreement, (i) all management powers over the business and affairs of the Partnership generally are and shall be exclusively vested in the Managing General Partner of the Partnership generallyPartner, and no Limited Partner or other General Partner shall have any right to participate in or exercise control or management power over the business and affairs of (or authority to bind) the Partnership generally and (ii) all management powers over the business and affairs of each Series shall be exclusively vested in the Managing Partnership. The General Partner may not be removed by the Limited Partners, with or without cause, except with the consent of such Series, and no Limited Partner or other the General Partner shall have any management power over the business and affairs of (or authority to bind) such SeriesPartner. In addition to the powers now or hereafter granted to a general partner of a limited partnership under applicable law or that which are granted to a Managing the General Partner under any other provision of this Agreement, each Managing the General Partner, subject to any approval required by Section 7.4, Section 7.5 or any other provision of this Agreement7.3 hereof, shall have full power and authority to do all things and on such terms as deemed necessary, desirable or convenient by it determines to be necessary or appropriate to conduct the business of the Partnership generally or the applicable Series, as the case may bePartnership, to exercise all powers set forth in Section 2.5 3.2 hereof and to effectuate the purposes set forth in Section 2.43.1 hereof, including the followingincluding, without limitation:
(i) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money to permit the Partnership to make distributions to its Partners in such amounts as will permit STAG REIT (so long as STAG REIT desires to maintain its qualification as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Section 4981 of the Code) and to make distributions to its stockholders in amounts sufficient to permit STAG REIT to maintain its qualification as a REIT), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences evidence of indebtedness (including the securing of the same by deed, mortgage, deed of trust or other lien or encumbrance on the Partnership’s assets) and the incurring of any other obligationsobligations it deems necessary for the conduct of the activities of the Partnership;
(ii) the making of tax, regulatory and other filingsfilings or elections, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership and each Series (other than in connection with the matters set forth in Section 9.3)Partnership;
(iii) the acquisition, dispositionsale, mortgagelease, pledgetransfer, encumbrance, hypothecation exchange or exchange other disposition of any or all of the assets of the applicable Series Partnership (including the exercise or grant of any conversion, option, privilege, or subscription right or other right available in connection with any assets at any time held by the Partnership) or the merger or other combination of the Partnership with or into another Personentity (all of the foregoing subject to any prior approval only to the extent required by Section 7.3 or 8.8 hereof);
(iv) the mortgage, pledge, encumbrance or hypothecation of any assets of the Partnership, the use of the assets of the applicable Series Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms that it sees fit, including, without limitation, the financing of the conduct of the operations of the Partnership, the General Partner, STAG REIT or any of the Partnership’s, the General Partner’s or STAG REIT’s Subsidiaries, the lending of funds to other Persons (including, without limitation, the Subsidiaries of the Partnership, the General Partner and/or STAG REIT) and the repayment of obligations of the Partnership and its Subsidiaries and any other Person in which it has an equity investment, and the making of capital contributions to its Subsidiaries;
(v) the negotiation, execution execution, delivery and performance of any contracts, conveyances or other instruments on behalf that the General Partner considers useful or necessary or convenient to the conduct of the Partnership generally Partnership’s operations or the applicable Seriesimplementation of the General Partner’s powers under this Agreement, including, without limitation, contracting with consultants, accountants, legal counsel, other professional advisors and other agents and the payment of their expenses and compensation out of the Partnership’s assets;
(vi) the distribution of Partnership cash or property of the applicable Seriesother Partnership assets in accordance with this Agreement;
(vii) holding, managing, investing and reinvesting cash and other assets of the Partnership;
(viii) the collection and receipt of revenues and income of the Partnership;
(ix) the establishment of one or more divisions of the Partnership, the selection and dismissal of employees of the Partnership (including, without limitation, employees who may be designated as officers with titles such as “president,” “vice president,” “secretary” and “treasurer” of the Partnership), and agents, outside attorneys, accountants, consultants and contractors of the Partnership, and the determination of their compensation and other terms of employment or hiring;
(x) the maintenance of separate or joint such insurance policies for the benefit of the Partnership, any Series, any Partnership and the Partners as it deems necessary or any Indemniteesappropriate;
(viiixi) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventureslimited liability companies, real estate investment trusts, corporations, limited liability companies entities that are treated as REITs, “taxable REIT subsidiaries” or foreign corporations for federal income tax purposes, joint ventures or other relationships subject that it deems desirable (including, without limitation, the acquisition of interests in, and the contributions of property or the making of loans to, its, STAG REIT’s or the General Partner’s Subsidiaries and any other Person in which it has an equity investment from time to time or the restrictions set forth incurrence of indebtedness on behalf of such Persons or the guarantee of obligations of such Persons and the making of any tax, regulatory or other filing or election with respect to any of the foregoing Persons); provided, that as long as STAG REIT has determined to continue to qualify as a REIT, the Partnership may not engage in Section 2.4any such formation, acquisition or contribution that would cause STAG REIT to fail to qualify as a REIT;
(ixxii) the control of any matters affecting the rights and obligations of the Partnership or the applicable SeriesPartnership, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigationsettlement, compromise, submission to arbitration or mediation any other form of dispute resolution, or abandonment of, any claim, cause of action, liability, debt or damages, due or owing to or from the Partnership, the commencement or defense of suits, legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, and the incurring representation of the Partnership in all suits or legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, the incurrence of legal expense expense, and the settlement of claims and litigation; and
(x) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xiii) the undertaking of any action in connection with the Partnership’s direct or indirect investment in any Subsidiary or any other Person (including, without limitation, the contribution or loan of funds by the Partnership to such Persons);
(xiv) except as otherwise specifically set forth in this Agreement, the determination of the fair market value of any Partnership property distributed in kind using such reasonable method of valuation as the General Partner may adopt;
(xv) the enforcement of any rights against any Partner pursuant to representations, warranties, covenants and indemnities relating to such Partner’s contribution of property or assets to the Partnership;
(xvi) the exercise, directly or indirectly, through any attorney-in-fact acting under a general or limited power of attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(xvii) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(xviii) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest pursuant to contractual or other arrangements with such Person;
(xix) the making, execution, delivery and performance of any and all deeds, leases, notes, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary, appropriate or convenient, in the judgment of the General Partner, for the accomplishment of any of the powers of the General Partner enumerated in this Agreement;
(xx) the issuance of additional OP Units and other Partnership Interests, as appropriate, in connection with Capital Contributions by Additional Limited Partners and additional Capital Contributions by Partners pursuant to Article 4 hereof;
(xxi) the taking of any action necessary or appropriate to enable STAG REIT to qualify as a REIT;
(xxii) the management, operation, leasing, landscaping, repair, alteration, demolition, replacement or improvement of any Property;
(xxiii) an election to dissolve the Partnership pursuant to Section 13.1(c) hereof;
(xxiv) the amendment and restatement of Exhibit A hereto to reflect accurately at all times the Capital Contributions and Percentage Interests of the Partners as the same are adjusted from time to time to the extent necessary to reflect redemptions, Capital Contributions, the issuance of OP Units, the admission of any Additional Limited Partner or any Substituted Limited Partner or otherwise;
(xxv) the registration of any class of securities of the Partnership under the Securities Act or the Exchange Act, and the listing of any debt securities of the Partnership on any exchange; and
(xxvi) the taking of any and all acts necessary or prudent to ensure that the Partnership will not be classified as a “publicly traded partnership” under Code Section 7704.
(b) Each of the Limited Partners agrees that the General Partner is authorized to execute, deliver and perform the above-mentioned agreements and transactions on behalf of the Partnership without any further act, approval or vote of the Partners, notwithstanding any other provision of this Agreement (except as provided in Section 7.3), the Act or any applicable law, rule or regulation, to the fullest extent permitted under the Act or other applicable law, rule or regulation. The execution, delivery or performance by the General Partner or the Partnership of any agreement authorized or permitted under this Agreement shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement or of any duty stated or implied by law or equity.
(c) At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain working capital accounts and other cash or similar balances in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
(d) In exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner of any action taken by it. The General Partner and the Partnership shall not be liable to a Limited Partner under any circumstances as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner taken pursuant to its authority under this Agreement and in accordance with the terms of Section 7.3.
Appears in 1 contract
Sources: Limited Partnership Agreement (STAG Industrial, Inc.)
Management. (a) The Managing General Partner of the Partnership generally shall conduct, direct and manage all activities of the Partnership generally, and the Managing General Partner of each Series shall conduct, direct and manage all activities of the Series for which it serves as Managing General Partner. A. Except as otherwise expressly provided in this Agreement, (i) all management powers over the business and affairs of the Partnership generally are and shall be exclusively vested in the Managing General Partner of the Partnership generallyPartner, and no Limited Partner or other General Partner shall have any right to participate in or exercise control or management power over the business and affairs of (or authority to bind) the Partnership generally and (ii) all management powers over the business and affairs of each Series shall be exclusively vested in the Managing Partnership. The General Partner may not be removed by the Partners with or without cause, except with the Consent of such Series, and no Limited Partner or other the General Partner shall have any management power over the business and affairs of (or authority to bind) such SeriesPartner. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or that are granted to a Managing the General Partner under any other provision of this Agreement, each Managing the General Partner, subject to any approval required by the other provisions hereof including Section 7.4, Section 7.5 or any other provision of this Agreement7.3, shall have full power and authority to do all things and on such terms as it determines to be deemed necessary or appropriate desirable by it to conduct the business of the Partnership generally or the applicable Series, as the case may bePartnership, to exercise all powers set forth in Section 2.5 3.2 hereof and to effectuate the purposes set forth in Section 2.43.1 hereof, including the followingincluding, without limitation:
(i1) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money to permit the Partnership to make distribu- tions to its Partners in such amounts as will permit the Previous General Partner (so long as the Previous General Partner qualifies as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Code Section 4981) and to make distributions to its shareholders sufficient to permit the Previous General Partner to maintain REIT status or otherwise to satisfy the REIT Requirements), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtedness (including the securing of same by deed to secure debt, mortgage, deed of trust or other lien or encumbrance on the Partnership- 's assets) and the incurring of any other obligationsobligations that it deems necessary for the conduct of the activities of the Partnership;
(ii2) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership and each Series (other than in connection with the matters set forth in Section 9.3)Partnership;
(iii3) the acquisition, dispositionsale, mortgagetransfer, pledge, encumbrance, hypothecation exchange or exchange other disposition of any or all of the assets of the applicable Series Partnership (including, but not limited to, the exercise or grant of any conversion, option, privilege or subscription right or any other right available in connection with any assets at any time held by the Partnership) or the merger merger, consolida- tion, reorganization or other combination of the Partnership with or into another Personentity;
(iv) the use of the assets of the applicable Series (including cash on hand) for any purpose consistent with the terms of this Agreement;
(v) the negotiation, execution and performance of any contracts, conveyances or other instruments on behalf of the Partnership generally or the applicable Series;
(vi) the distribution of cash or property of the applicable Series;
(vii) the maintenance of separate or joint insurance policies for the benefit of the Partnership, any Series, any Partners or any Indemnitees;
(viii) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies or other relationships subject to the restrictions set forth in Section 2.4;
(ix) the control of any matters affecting the rights and obligations of the Partnership or the applicable Series, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigation, arbitration or mediation and the incurring of legal expense and the settlement of claims and litigation; and
(x) the indemnification of any Person against liabilities and contingencies to the extent permitted by law.
Appears in 1 contract
Sources: Limited Partnership Agreement (Apartment Investment & Management Co)
Management. (a) The Managing General Partner of the Partnership generally shall conduct, direct and manage all activities of the Partnership generally, and the Managing General Partner of each Series shall conduct, direct and manage all activities of the Series for which it serves as Managing General Partner. A. Except as otherwise expressly provided in this Agreement, (i) all management powers over the business and affairs of the Partnership generally shall be exclusively are vested in the Managing General Partner of the Partnership generallyPartner, and no Limited Partner or other General Partner shall have any right to participate in or exercise control or management power over the business and affairs of (or authority to bind) the Partnership generally and (ii) all management powers over the business and affairs of each Series shall be exclusively vested in the Managing General Partner of such Series, and no Limited Partner or other General Partner shall have any management power over the business and affairs of (or authority to bind) such SeriesPartnership. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or that which are granted to a Managing the General Partner under any other provision of this Agreement, each Managing the General Partner, subject to any approval required by Section 7.4, Section 7.5 or any other provision of this Agreement9.01 hereof, shall have full power and authority to do all things and on such terms as it determines to be deemed necessary or appropriate desirable to conduct the business of the Partnership generally or the applicable Series, as the case may bePartnership, to exercise all powers set forth in Section 2.5 3.02 hereof and to effectuate the purposes purpose set forth in Section 2.43.01 hereof, including without limitation, those matters set forth below in this Section 7.01. The General Partner hereby delegates to the followingBoard of Directors of the Partnership all of its management powers hereunder, other than those expressly reserved in Section 9.01 hereto:
(i1) the making of any expenditures, the lending or borrowing of money, the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences evidence of indebtedness (including the securing of the same by deed, mortgage, deed of trust or other lien or encumbrance on the Partnership’s and the Partnership’s Subsidiaries’ assets) and the incurring of any other obligationsobligations it deems necessary for the conduct of the activities of the Partnership or its Subsidiaries;
(ii2) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership, the registration of any offering of any class of securities of the Partnership under the Securities Act and each Series (other than in connection with the matters set forth in Section 9.3)registration of any such class under the Exchange Act and the listing of any securities of the Partnership on any securities market;
(iii3) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the applicable Series Partnership or the Partnership’s Subsidiaries, including, without limitation, in connection with a resecuritization transaction and including the exercise or grant of any conversion, option, privilege, or subscription right or other right available in connection with any assets at any time held by the Partnership or its Subsidiaries or the merger or other combination of the Partnership with or into another Personentity (all of the foregoing subject to any prior approval only to the extent required by Section 7.03 hereof);
(iv4) the use of the assets of the applicable Series Partnership or of its Subsidiaries (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and the Act and on any terms it sees fit, including, without limitation, the financing of the conduct of the operations of the General Partner, the Partnership or any of the Partnership’s Subsidiaries, the lending of funds to other Persons (including, without limitation, the Subsidiaries of the Partnership ) and the repayment of obligations of the Partnership and its Subsidiaries and any other Person in which it has an equity investment, and the making of capital contributions to its Subsidiaries;
(v5) delegation of any or all of its authority to the Manager or to officers and employees of the General Partner, the Partnership or the Manager;
(6) the establishment of reserves;
(7) the purchase, sale, management, operation, leasing, landscaping, repair, alteration, demolition or improvement of any real property or improvements owned by the Partnership or any Subsidiary of the Partnership;
(8) the negotiation, execution execution, and performance of any contracts, conveyances or other instruments on behalf that the General Partner considers useful or necessary to the conduct of the Partnership generally Partnership’s operations or the applicable Seriesimplementation of the General Partner’s powers under this Agreement, including contracting with contractors, developers, consultants, accountants, legal counsel, other professional advisors and other agents and the payment of their expenses and compensation out of the Partnership’s or any of its Subsidiaries’ assets;
(vi9) the opening and maintenance of bank accounts for the Partnership and the drawing of checks and orders for the payment of money;
(10) the distribution of Partnership cash or property of the applicable Seriesother Partnership assets in accordance with this Agreement;
(vii11) holding, managing, investing and reinvesting cash and other assets of the Partnership and its Subsidiaries;
(12) the collection and receipt of revenues and income of the Partnership;
(13) the establishment of one or more divisions of the Partnership;
(14) the determination of the hiring and compensation of employees;
(15) the maintenance of separate or joint such insurance policies for the benefit of the Partnership, any Seriesits Subsidiaries, any Partners their respective partners, members or any Indemniteesinterest holders and directors and officers of the General Partner as it deems necessary or appropriate;
(viii16) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies ventures or other relationships subject that it deems desirable (including, without limitation, the acquisition of interests in, and the contributions of property to, its Subsidiaries and any other Person in which it has an equity investment from time to the restrictions set forth in Section 2.4time);
(ix17) the control of any matters affecting the rights and obligations of the Partnership or the applicable Seriesand its Subsidiaries, including the bringing and defending settlement, compromise, submission to arbitration or any other form of actions at law dispute resolution, or in equity and otherwise engaging in abandonment of, any claim, cause of action, liability, debt or damages, due or owing to or from the conduct Partnership or any of litigationits Subsidiaries, the commencement or defense of suits, legal proceedings, administrative proceedings, arbitration or mediation other forms of dispute resolution, and the representation of the Partnership in all suits or legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, the incurring of legal expense expense, and the settlement of claims and litigation; and
(x) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(18) the undertaking of any action in connection with the Partnership’s direct or indirect investment in its Subsidiaries or any other Person (including, without limitation, the contribution or loan of funds by the Partnership to such Persons);
(19) the determination of the fair market value of any Partnership property distributed in kind using such reasonable method of valuation as the General Partner may adopt;
(20) the exercise, directly or indirectly, through any attorney-in-fact acting under a general or limited power of attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(21) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(22) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest pursuant to contractual or other arrangements with such Person;
(23) the making, execution and delivery of any and all deeds, leases, notes, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate, in the judgment of the General Partner, for the accomplishment of any of the powers of the General Partner enumerated in this Agreement; and
(24) the issuance of additional Partnership Units, as appropriate, in connection with Capital Contributions by Additional Limited Partners pursuant to Article IV hereof.
B. Each of the Limited Partners agrees that the officers of the Partnership or such other person (including the Manager) as the Board of Directors may appoint, is authorized to execute, deliver and perform the above-mentioned agreements and transactions on behalf of the Partnership without any further act, approval or vote of the Partners, notwithstanding any other provision of this Agreement (except as provided in Section 7.03), the Act or any applicable law, rule or regulation, to the fullest extent permitted under the Act or other applicable law, rule or regulation.
C. At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain at any and all times working capital accounts and other cash or similar balances in such amounts as the General Partner, deems appropriate and reasonable from time to time.
D. The General Partner shall not have any greater fiduciary or similar duty to the Partnership or any of the Partners than an officer of a corporation for profit organized under the General Business Corporation Law of Delaware would have to such corporation or its shareholders.
E. In exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner of any action taken by it. The General Partner and the Partnership shall not have liability to a Limited Partner under any circumstances, as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner taken pursuant to its authority under this Agreement and in accordance with the terms of Section 7.03. The Limited Partners expressly acknowledge that the General Partner is acting on behalf of the Partnership and its Partners collectively.
F. The General Partner may not be removed by the Limited Partners with or without cause.
Appears in 1 contract
Sources: Limited Partnership Agreement (Highland Financial Partners, L.P.)
Management. (a) The Managing General Partner of the Partnership generally shall conduct, direct and manage all activities of the Partnership generally, and the Managing General Partner of each Series shall conduct, direct and manage all activities of the Series for which it serves as Managing General Partner. A. Except as otherwise expressly provided in this Agreement, (i) all management powers over the business and affairs of the Partnership generally are and shall be exclusively vested in the Managing General Partner of the Partnership generallyPartner, and no Limited Partner or other General Partner shall have any right to participate in or exercise control or management power over the business and affairs of (or authority to bind) the Partnership generally and (ii) all management powers over the business and affairs of each Series shall be exclusively vested in the Managing Partnership. The General Partner may not be removed by the Partners with or without cause, except with the consent of such Series, and no Limited Partner or other the General Partner shall have any management power over the business and affairs of (or authority to bind) such SeriesPartner. In addition to the powers now or hereafter granted to a general partner of a limited partnership under applicable law or that are granted to a Managing the General Partner under any other provision of this Agreement, each Managing the General Partner, subject to any approval required by the other provisions hereof including Section 7.4, Section 7.5 or any other provision of this Agreement7.3, shall have full power and authority to do all things and on such terms as it determines to be deemed necessary or appropriate desirable by it to conduct the business of the Partnership generally or the applicable Series, as the case may bePartnership, to exercise all powers set forth in Section 2.5 3.2 hereof and to effectuate the purposes set forth in Section 2.43.1 hereof, including the followingincluding, without limitation:
(i1) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money or selling assets to permit the Partnership to make distributions to its Partners in such amounts as will permit the Parent REIT (so long as the Parent REIT desires to maintain or restore its status as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Code Section 4981) and to make distributions sufficient to permit the Parent REIT to maintain or restore REIT status or otherwise to satisfy the REIT Requirements), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtedness (including the securing of same by deed to secure debt, mortgage, deed of trust or other lien or encumbrance on the Partnership's assets) and the incurring of any other obligationsobligations that it deems necessary for the conduct of the activities of the Partnership;
(ii2) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership and each Series (other than in connection with the matters set forth in Section 9.3)Partnership;
(iii3) the acquisition, dispositionsale, mortgagelease, pledgetransfer, encumbranceexchange or other disposition of any, hypothecation all or exchange of any or substantially all of the assets of the applicable Series Partnership (including, but not limited to, the exercise or grant of any conversion, option, privilege or subscription right or any other right available in connection with any assets at any time held by the Partnership) or the merger merger, consolidation, reorganization or other combination of the Partnership with or into another Personentity;
(iv4) the mortgage, pledge, encumbrance or hypothecation of any assets of the Partnership, the use of the assets of the applicable Series Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms that it sees fit, including, without limitation, the financing of the operations and activities of the Parent REIT, the General Partner, the Partnership or any of the Partnership's Subsidiaries, the lending of funds to other Persons (including, without limitation, the Partnership's Subsidiaries) and the repayment of obligations of the Partnership, its Subsidiaries and any other Person in which the Partnership has an equity investment, and the making of capital contributions to and equity investments in the Partnership's Subsidiaries;
(v5) the management, operation, leasing, landscaping, repair, alteration, demolition, replacement or improvement of any Property, including, without limitation, any Contributed Property, or other asset of the Partnership or any Subsidiary, whether pursuant to a Services Agreement or otherwise;
(6) the negotiation, execution and performance of any contracts, leases, conveyances or other instruments on behalf that the General Partner considers useful or necessary to the conduct of the Partnership generally Partnership's operations or the applicable Seriesimplementation of the General Partner's powers under this Agreement, including contracting with contractors, developers, consultants, accountants, legal counsel, other professional advisors and other agents and the payment of their expenses and compensation out of the Partnership's assets;
(vi7) the distribution of Partnership cash or property other Partnership assets in accordance with this Agreement, the holding, management, investment and reinvestment of cash and other assets of the applicable SeriesPartnership, and the collection and receipt of revenues, rents and income of the Partnership;
(vii) 8) the maintenance of separate or joint such insurance policies for the benefit of the PartnershipPartnership and the Partners as it deems necessary or appropriate, any Seriesincluding, any Partners or any Indemniteeswithout limitation, (i) casualty, liability and other insurance on the Properties and (ii) liability insurance for the Indemnitees hereunder;
(viii9) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies companies, joint ventures or other relationships subject that it deems desirable (including, without limitation, the acquisition of interests in, and the contributions of property to, any Subsidiary and any other Person in which it has an equity investment from time to time); provided, however, that, as long as the restrictions set forth Parent REIT has determined to continue to qualify as a REIT, the General Partner may not engage in any such formation, acquisition or contribution that would cause the Parent REIT to fail to qualify as a REIT within the meaning of Code Section 2.4856(a);
(ix10) the control of any matters affecting the rights and obligations of the Partnership or the applicable SeriesPartnership, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigationsettlement, compromise, submission to arbitration or mediation any other form of dispute resolution, or abandonment, of any claim, cause of action, liability, debt or damages, due or owing to or from the Partnership, the commencement or defense of suits, legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, and the representation of the Partnership in all suits or legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, the incurring of legal expense expense, and the settlement of claims and litigation; and
(x) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(11) the undertaking of any action in connection with the Partnership's direct or indirect investment in any Subsidiary or any other Person (including, without limitation, the contribution of Property or contribution or loan of funds by the Partnership to such Persons);
(12) except as otherwise specifically set forth in this Agreement, the determination of the fair market value of any Partnership property distributed in kind using such reasonable method of valuation as it may adopt; provided that such methods are otherwise consistent with the requirements of this Agreement;
(13) the enforcement of any rights against any Partner pursuant to representations, warranties, covenants and indemnities relating to such Partner's contribution of property or assets to the Partnership;
(14) the exercise, directly or indirectly, through any attorney-in-fact acting under a general or limited power of attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(15) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(16) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest, pursuant to contractual or other arrangements with such Person;
(17) the making, execution and delivery of any and all deeds, leases, notes, deeds to secure debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate in the judgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement;
(18) the issuance of additional Partnership Units, as appropriate and in the General Partner's sole and absolute discretion, in connection with Capital Contributions by Additional Limited Partners and additional Capital Contributions by Partners pursuant to Article IV hereof;
(19) the selection and dismissal of Company Employees (including, without limitation, employees having titles or offices such as president, vice president, secretary and treasurer), and agents, outside attorneys, accountants, consultants and contractors of the Partnership or the General Partner, the determination of their compensation and other terms of employment or hiring and the delegation to any such Company Employee the authority to conduct the business of the Partnership in accordance with the terms of this Agreement; and
(20) an election to dissolve the Partnership pursuant to Section 13.1C hereof.
B. Each of the Limited Partners agrees that, except as provided in Section 7.3 hereof, the General Partner is authorized to execute, deliver and perform the above-mentioned agreements and transactions on behalf of the Partnership without any further act, approval or vote of the Partners, notwithstanding any other provision of this Agreement, the Act or any applicable law, rule or regulation. The execution, delivery or performance by the General Partner or the Partnership of any agreement authorized or permitted under this Agreement shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement or of any duty stated or implied by law or equity.
C. At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain working capital and other reserves in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
D. In exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner (including the General Partner) of any action taken by it. The General Partner and the Partnership shall not have liability to a Limited Partner under any circumstances as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner pursuant to its authority under this Agreement.
Appears in 1 contract
Sources: Limited Partnership Agreement (Arbor Realty Trust Inc)
Management. (a) The Managing General Partner of the Partnership generally shall conduct, direct and manage all activities of the Partnership generally, and the Managing General Partner of each Series shall conduct, direct and manage all activities of the Series for which it serves as Managing General Partner. Except as otherwise expressly provided in this Agreement, (i) all management powers over the business and affairs of the Partnership generally are and shall be exclusively vested in the Managing General Partner of the Partnership generallyPartner, and no Limited Partner or other General Partner shall have any right to participate in or exercise control or management power over the business and affairs of (or authority to bind) the Partnership generally and (ii) all management powers over the business and affairs of each Series shall be exclusively vested in the Managing Partnership. The General Partner may not be removed by the Limited Partners, except with the consent of such Series, and no Limited Partner or other the General Partner shall have any management power over the business and affairs of (or authority to bind) such SeriesPartner. In addition to the powers now or hereafter granted to a general partner of a limited partnership under applicable law or that are granted to a Managing the General Partner under any other provision of this Agreement, each Managing the General Partner, subject to any approval required by the other provisions hereof including Section 7.4, 7.03 and Section 7.5 or any other provision of this Agreement11.02, shall have full power and authority to do all things and on such terms as it determines to be deemed necessary or appropriate desirable by it to conduct the business of the Partnership generally or the applicable Series, as the case may bePartnership, to exercise all powers set forth in Section 2.5 3.02 hereof and to effectuate the purposes set forth in Section 2.43.01 hereof, including the followingincluding, without limitation:
(i) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money or selling assets to permit the Partnership to make distributions to its Partners in such amounts as will permit the General Partner (so long as the General Partner desires to maintain or restore its qualification as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Code Section 4981) and to make distributions to its stockholders sufficient to permit the General Partner to maintain or restore REIT qualification or otherwise to satisfy the REIT Requirements), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtedness (including the securing of same by deed to secure debt, mortgage, deed of trust or other lien or encumbrance on the Partnership’s assets) and the incurring of any other obligationsobligations that it deems necessary for the conduct of the activities of the Partnership;
(ii) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership, the registration of any class of securities of the Partnership under the Exchange Act and each Series (other than in connection with the matters set forth in Section 9.3)listing of any debt securities of the Partnership on any exchange;
(iii) subject to Section 11.02 hereof, the acquisition, dispositionsale, mortgagelease, pledgetransfer, encumbranceexchange or other disposition of any, hypothecation all or exchange of any or substantially all of the assets of the applicable Series Partnership (including, but not limited to, the exercise or grant of any conversion, option, privilege or subscription right or any other right available in connection with any assets at any time held by the Partnership) or the merger merger, consolidation, reorganization or other combination of the Partnership with or into another Personentity;
(iv) the mortgage, pledge, encumbrance or hypothecation of any assets of the Partnership, the use of the assets of the applicable Series Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms that it sees fit, including, without limitation, the financing of the operations and activities of the General Partner, the Partnership or any of the Partnership’s Subsidiaries, the lending of funds to other Persons (including, without limitation, the Partnership’s Subsidiaries) and the repayment of obligations of the Partnership, its Subsidiaries and any other Person in which the Partnership has an equity investment, and the making of capital contributions to and equity investments in the Partnership’s Subsidiaries;
(v) the use of the assets of the Partnership (including, without limitation, cash on hand) for any purpose consistent with the terms of this Agreement and on any terms it sees fit, including, without limitation, the financing of the conduct of the operations of the General Partner, the Partnership or any of the Partnership’s Subsidiaries, the lending of funds to other Persons (including, without limitation, the General Partner and its Subsidiaries and the Partnership’s Subsidiaries) and the repayment of obligations of the Partnership and its Subsidiaries and any other Person in which the Partnership has an equity investment and the making of capital contributions to its Subsidiaries;
(vi) the management, operation, leasing, landscaping, repair, alteration, demolition, replacement or improvement of any Property, including, without limitation, any Contributed Property, or other asset of the Partnership or any Subsidiary, whether pursuant to a Services Agreement or otherwise;
(vii) the negotiation, execution and performance of any contracts, leases, conveyances or other instruments on behalf that the General Partner considers useful or necessary to the conduct of the Partnership generally Partnership’s operations or the applicable Seriesimplementation of the General Partner’s powers under this Agreement, including contracting with contractors, developers, consultants, accountants, legal counsel, other professional advisors and other agents and the payment of their expenses and compensation out of the Partnership’s assets;
(viviii) the distribution of Partnership cash or property other Partnership assets in accordance with this Agreement, the holding, management, investment and reinvestment of cash and other assets of the applicable SeriesPartnership and the collection and receipt of revenues, rents and income of the Partnership;
(viiix) the maintenance of separate or joint such insurance policies for the benefit of the PartnershipPartnership and the Partners as the General Partner deems necessary or appropriate, any Seriesincluding, any Partners or any Indemniteeswithout limitation, (i) casualty, liability and other insurance on the Properties and (ii) liability insurance for the Indemnitees hereunder;
(viiix) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies companies, joint ventures or other relationships subject that the General Partner deems desirable (including, without limitation, the acquisition of interests in, and the contributions of property to, any Subsidiary and any other Person in which it has an equity investment from time to time); provided, however, that as long as the restrictions set forth General Partner has determined to continue to qualify as a REIT, the General Partner may not engage in any such formation, acquisition or contribution that would cause it to fail to qualify as a REIT within the meaning of Code Section 2.4856(a) (so long as the General Partner desires to maintain its qualification as a REIT);
(ixxi) the filing of applications, communicating and otherwise dealing with any and all governmental agencies having jurisdiction over, or in any way affecting, the Partnership’s assets or any other aspect of the Partnership business;
(xii) the control of any matters affecting the rights and obligations of the Partnership or the applicable SeriesPartnership, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigationsettlement, compromise, submission to arbitration or mediation any other form of dispute resolution, or abandonment, of any claim, cause of action, liability, debt or damages, due or owing to or from the Partnership, the commencement or defense of suits, legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, and the representation of the Partnership in all suits or legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, the incurring of legal expense expense, and the settlement of claims and litigation; and
(x) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xiii) the undertaking of any action in connection with the Partnership’s direct or indirect investment in any Subsidiary or any other Person (including, without limitation, the contribution or loan of funds by the Partnership to such Persons);
(xiv) except as otherwise specifically set forth in this Agreement, the determination of the fair market value of any Partnership property distributed in-kind using such reasonable method of valuation as it may adopt; provided, that such methods are otherwise consistent with the requirements of this Agreement;
(xv) the enforcement of any rights against any Partner pursuant to representations, warranties, covenants and indemnities relating to such Partner’s contribution of property or assets to the Partnership;
(xvi) the exercise, directly or indirectly, through any attorney-in-fact acting under a general or limited power-of-attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(xvii) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(xviii) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest, pursuant to contractual or other arrangements with such Person;
(xix) the making, execution and delivery of any and all deeds, leases, notes, deeds to secure Debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate in the judgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement;
(xx) the issuance of additional Partnership Units, as appropriate and in the General Partner’s sole and absolute discretion, in connection with Capital Contributions by Additional Limited Partners and additional Capital Contributions by Partners pursuant to Article IV hereof;
(xxi) the selection and dismissal of Company Employees (including, without limitation, employees having titles or offices such as president, vice president, secretary and treasurer), and agents, outside attorneys, accountants, consultants and contractors of the Partnership or the General Partner, the determination of their compensation and other terms of employment or hiring and the delegation to any such Company Employee the authority to conduct the business of the Partnership in accordance with the terms of this Agreement;
(xxii) the distribution of cash to acquire Partnership Units held by a Limited Partner in connection with a Limited Partner’s exercise of its Redemption right under Section 8.06 hereof;
(xxiii) the amendment and restatement of Exhibit A hereto to reflect accurately at all times the Capital Contributions and Percentage Interests of the Partners as the same are adjusted from time to time to the extent necessary to reflect redemptions, Capital Contributions, the issuance of Partnership Units, the admission of any Additional Limited Partner or any Substituted Limited Partner or otherwise, which amendment and restatement, notwithstanding anything in this Agreement to the contrary, shall not be deemed an amendment to this Agreement, as long as the matter or event being reflected in Exhibit A hereto otherwise is authorized by this Agreement;
(xxiv) the determination regarding whether a payment to a Partner who exercises its Redemption Right under Section 8.06 that is assumed by the General Partner will be paid in the form of the Cash Amount or the REIT Shares Amount, except as such determination may be limited by Section 8.06;
(xxv) the collection and receipt of revenues and income of the Partnership;
(xxvi) the registration of any class of securities of the Partnership under the Securities Act or the Exchange Act, and the listing of any debt securities of the Partnership on any exchange;
(xxvii) an election to dissolve the Partnership pursuant to Section 13.01(b) hereof;
(xxviii) the taking of any action necessary or appropriate to enable the General Partner to qualify as a REIT (so long as the General Partner desires to maintain its qualification as a REIT); and
(xxix) the taking of any action necessary or appropriate to prevent the Partnership or the General Partner from being subject to regulation under the Investment Company Act.
(b) Each of the Limited Partners agrees that, except as provided in Section 7.03 hereof, the General Partner is authorized to execute, deliver and perform the above- mentioned agreements and transactions on behalf of the Partnership without any further act, approval or vote of the Partners, notwithstanding any other provision of this Agreement, the Act or any applicable law, rule or regulation.
(c) At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain working capital and other reserves in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
(d) In exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner (including the General Partner) of any action taken (or not taken) by it. Except as may be provided in a separate written agreement between the Partnership and the Limited Partners, the General Partner and the Partnership shall not have liability to a Limited Partner under any circumstances as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner pursuant to its authority under this Agreement provided, that the General Partner has acted in good faith and pursuant to its authority under this Agreement.
Appears in 1 contract
Sources: Limited Partnership Agreement (Hannon Armstrong Sustainable Infrastructure Capital, Inc.)
Management. (a) The Managing General Partner of the Partnership generally shall conduct, direct and manage all activities of the Partnership generally, and the Managing General Partner of each Series shall conduct, direct and manage all activities of the Series for which it serves as Managing General Partner. A. Except as otherwise expressly provided in this Agreement, (i) all management powers over the business and affairs of the Partnership generally are and shall be exclusively vested in the Managing General Partner of the Partnership generallyPartner, and no Limited Partner or other General Partner shall have any right to participate in or exercise control or management power over the business and affairs of (or authority to bind) the Partnership generally and (ii) all management powers over the business and affairs of each Series shall be exclusively vested in the Managing Partnership. The General Partner may not be removed by the Partners with or without cause, except with the consent of such Series, and no Limited Partner or other the General Partner shall have any management power over the business and affairs of (or authority to bind) such SeriesPartner. In addition to the powers now or hereafter granted to a general partner of a limited partnership under applicable law or that are granted to a Managing the General Partner under any other provision of this Agreement, each Managing the General Partner, subject to any approval required by the other provisions hereof including Section 7.4, Section 7.5 or any other provision of this Agreement7.3, shall have full power and authority to do all things and on such terms as it determines to be deemed necessary or appropriate desirable by it to conduct the business of the Partnership generally or the applicable Series, as the case may bePartnership, to exercise all powers set forth in Section 2.5 3.2 hereof and to effectuate the purposes set forth in Section 2.43.1 hereof, including the followingincluding, without limitation:
(i) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money or selling assets to permit the Partnership to make distributions to its Partners in such amounts as will permit the Parent (so long as the Parent desires to maintain or restore its status as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Code Section 4981) and to make distributions to its stockholders sufficient to permit the Parent to maintain or restore REIT status or otherwise to satisfy the REIT Requirements), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtedness (including the securing of same by deed to secure debt, mortgage, deed of trust or other lien or encumbrance on the Partnership’s assets) and the incurring of any other obligationsobligations that it deems necessary for the conduct of the activities of the Partnership;
(ii) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership, the registration of any class of securities of the Partnership under the Exchange Act and each Series (other than in connection with the matters set forth in Section 9.3)listing of any debt securities of the Partnership on any exchange;
(iii) subject to Section [ ], the acquisition, dispositionsale, mortgagelease, pledgetransfer, encumbranceexchange or other disposition of any, hypothecation all or exchange of any or substantially all of the assets of the applicable Series Partnership (including, but not limited to, the exercise or grant of any conversion, option, privilege or subscription right or any other right available in connection with any assets at any time held by the Partnership) or the merger merger, consolidation, reorganization or other combination of the Partnership with or into another Personentity; provided, however, that, subject to Section 11.2.B, the Partnership will not engage in any such transaction unless (A) it receives the Consent of a Majority in Interest of the Outside Limited Partners; or (B) as a result of such transaction all Limited Partners will receive for each OP Unit an amount of cash, securities or other property equal in value to the greatest amount of cash, securities or other property paid in the transaction to a holder of a REIT Share; provided that if, in connection with the transaction, a purchase, tender or exchange offer shall have been made to and accepted by the holders of more than 50% of the outstanding REIT Shares, each holder of OP Units shall be given the option to exchange its OP Units for the greatest amount of cash, securities or other property that a Limited Partner would have received had it (1) exercised its Redemption right pursuant to Section 8.6.A and (2) sold, tendered or exchanged pursuant to the offer such REIT Shares received upon exercise of the Redemption right immediately prior to the expiration of the offer. Notwithstanding the foregoing, the Partnership may merge with or into or consolidate with another entity if immediately after such merger or consolidation (i) substantially all of the assets of the successor or surviving entity, other than Partnership Units held by the General Partner and the REIT Limited Partner, are contributed, directly or indirectly, to the partnership as a capital contribution in exchange for partnership units with a fair market value equal to the value of the assets so contributed as determined by the survivor in good faith and (ii) the survivor expressly agrees to assume all of the General Partner’s obligations under this Agreement and this Agreement shall be amended after any such merger or consolidation so as to arrive at a new method of calculating the amounts payable upon exercise of the right of Redemption that approximates the existing method for such calculation as closely as reasonably possible;
(iv) the mortgage, pledge, encumbrance or hypothecation of any assets of the Partnership, the use of the assets of the applicable Series Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms that it sees fit, including, without limitation, the financing of the operations and activities of the General Partner, the Partnership or any of the Partnership’s Subsidiaries, the lending of funds to other Persons (including, without limitation, the Partnership’s Subsidiaries) and the repayment of obligations of the Partnership, its Subsidiaries and any other Person in which the Partnership has an equity investment, and the making of capital contributions to and equity investments in the Partnership’s Subsidiaries;
(v) the management, operation, leasing, landscaping, repair, alteration, demolition, replacement or improvement of any Property, including, without limitation, any Contributed Property, or other asset of the Partnership or any Subsidiary, whether pursuant to a Services Agreement or otherwise;
(vi) the negotiation, execution and performance of any contracts, leases, conveyances or other instruments on behalf that the General Partner considers useful or necessary to the conduct of the Partnership generally Partnership’s operations or the applicable Series;
(vi) the distribution of cash or property implementation of the applicable SeriesGeneral Partner’s powers under this Agreement, including contracting with contractors, developers, consultants, accountants, legal counsel, other professional advisors and other agents and the payment of their expenses and compensation out of the Partnership’s assets;
(vii) the distribution of Partnership cash or other Partnership assets in accordance with this Agreement, the holding, management, investment and reinvestment of cash and other assets of the Partnership and the collection and receipt of revenues, rents and income of the Partnership;
(viii) the maintenance of separate or joint such insurance policies for the benefit of the PartnershipPartnership and the Partners as it deems necessary or appropriate, any Seriesincluding, any Partners or any Indemniteeswithout limitation, (i) casualty, liability and other insurance on the Properties and (ii) liability insurance for the Indemnitees hereunder;
(viiiix) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies companies, joint ventures or other relationships subject that it deems desirable (including, without limitation, the acquisition of interests in, and the contributions of property to, any Subsidiary and any other Person in which it has an equity investment from time to time); provided, however, that, as long as the restrictions set forth Parent has determined to continue to qualify as a REIT, the General Partner may not engage in any such formation, acquisition or contribution that would cause the Parent to fail to qualify as a REIT within the meaning of Code Section 2.4856(a);
(ixx) the control of any matters affecting the rights and obligations of the Partnership or the applicable SeriesPartnership, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigationsettlement, compromise, submission to arbitration or mediation any other form of dispute resolution, or abandonment, of any claim, cause of action, liability, debt or damages, due or owing to or from the Partnership, the commencement or defense of suits, legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, and the representation of the Partnership in all suits or legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, the incurring of legal expense expense, and the settlement of claims and litigation; and
(x) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xi) the undertaking of any action in connection with the Partnership’s direct or indirect investment in any Subsidiary or any other Person (including, without limitation, the contribution or loan of funds by the Partnership to such Persons);
(xii) except as otherwise specifically set forth in this Agreement, the determination of the fair market value of any Partnership property distributed in-kind using such reasonable method of valuation as it may adopt; provided that such methods are otherwise consistent with the requirements of this Agreement;
(xiii) the enforcement of any rights against any Partner pursuant to representations, warranties, covenants and indemnities relating to such Partner’s contribution of property or assets to the Partnership;
(xiv) the exercise, directly or indirectly, through any attorney-in-fact acting under a general or limited power-of-attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(xv) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(xvi) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest, pursuant to contractual or other arrangements with such Person;
(xvii) the making, execution and delivery of any and all deeds, leases, notes, deeds to secure debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate in the judgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement;
(xviii) the issuance of additional Partnership Units, as appropriate and in the General Partner’s sole and absolute discretion, in connection with Capital Contributions by Additional Limited Partners and additional Capital Contributions by Partners pursuant to Article IV hereof;
(xix) the selection and dismissal of Company Employees (including, without limitation, employees having titles or offices such as president, vice president, secretary and treasurer), and agents, outside attorneys, accountants, consultants and contractors of the Partnership or the General Partner, the determination of their compensation and other terms of employment or hiring and the delegation to any such Company Employee the authority to conduct the business of the Partnership in accordance with the terms of this Agreement;
(xx) the distribution of cash to acquire Partnership Units held by a Limited Partner in connection with a Limited Partner’s exercise of its Redemption right under Section 8.6 hereof;
(xxi) the amendment and restatement of Exhibit A hereto to reflect accurately at all times the Capital Contributions and Percentage Interests of the Partners as the same are adjusted from time to time to the extent necessary to reflect redemptions, Capital Contributions, the issuance of Partnership Units, the admission of any Additional Limited Partner or any Substituted Limited Partner or otherwise, which amendment and restatement, notwithstanding anything in this Agreement to the contrary, shall not be deemed an amendment to this Agreement, as long as the matter or event being reflected in Exhibit A hereto otherwise is authorized by this Agreement;
(xxii) the collection and receipt of revenues and income of the Partnership;
(xxiii) an election to dissolve the Partnership pursuant to Section 13.1.D hereof; and
(xxiv) the taking of any action necessary or appropriate to enable the Parent to qualify as a REIT.
B. Each of the Limited Partners agrees that, except as provided in Section 7.3 hereof, the General Partner is authorized to execute, deliver and perform the above-mentioned agreements and transactions on behalf of the Partnership without any further act, approval or vote of the Partners, notwithstanding any other provision of this Agreement, the Act or any applicable law, rule or regulation.
C. At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain working capital and other reserves in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
D. In exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner (including the General Partner) of any action taken (or not taken) by it. Except as may be provided in a separate written agreement between the Partnership and the Limited Partners, the General Partner and the Partnership shall not have liability to a Limited Partner under any circumstances as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner pursuant to its authority under this Agreement provided that the General Partner has acted in good faith and pursuant to its authority under this Agreement.
Appears in 1 contract
Sources: Limited Partnership Agreement (Cogdell Spencer Inc.)
Management. (a) The Managing General Partner of the Partnership generally shall conduct, direct and manage all activities of the Partnership generally, and the Managing General Partner of each Series shall conduct, direct and manage all activities of the Series for which it serves as Managing General Partner. A. Except as otherwise expressly provided in this Agreement, (i) all management powers over the business and affairs of the Partnership generally are and shall be exclusively vested in the Managing General Partner of the Partnership generallyPartner, and no Limited Partner or other General Partner shall have any right to participate in or exercise control or management power over the business and affairs of (or authority to bind) the Partnership generally and (ii) all management powers over the business and affairs of each Series shall be exclusively vested in the Managing Partnership. The General Partner of such Series, and no may not be removed by the Limited Partner Partners with or other General Partner shall have any management power over the business and affairs of (or authority to bind) such Serieswithout cause. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or that which are granted to a Managing the General Partner under any other provision of this Agreement, each Managing the General Partner, subject to any approval required by Section 7.4, Section 7.5 or any other provision of this Agreement7.3 hereof, shall have full power and authority to do all things and on such terms as it determines to be deemed necessary or appropriate desirable by it to conduct the business of the Partnership generally or the applicable Series, as the case may bePartnership, to exercise all powers set forth in Section 2.5 3.2 hereof and to effectuate the purposes set forth in Section 2.43.1 hereof, including the followingincluding, without limitation:
(i1) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money to permit the Partnership to make distributions to its Partners in such amounts as will permit the Gables Trust (so long as the Gables Trust qualifies as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Section 4981 of the Code) and to make distributions to its Partners such that the Gables Trust can distribute to its shareholders amounts sufficient to permit the Gables Trust to maintain REIT status), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences evidence of indebtedness (including the securing of same by deed to secure debt, mortgage, deed of trust or other lien or encumbrance on the Partnership's assets) and the incurring of any other obligationsobligations it deems necessary for the conduct of the activities of the Partnership;
(ii2) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership and each Series (other than in connection with the matters set forth in Section 9.3)Partnership;
(iii3) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the applicable Series Partnership (including the exercise or grant of any conversion, option, privilege, or subscription right or other right available in connection with any assets at any time held by the Partnership) or the merger or other combination of the Partnership with or into another Personentity (all of the foregoing subject to any prior approval only to the extent required by Section 7.3 hereof);
(iv4) the use of the assets of the applicable Series Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms it sees fit, including, without limitation, the financing of the conduct of the operations of the Gables Trust, the General Partner, the Partnership or any of the Partnership's Subsidiaries, the lending of funds to other Persons (including, without limitation, the Subsidiaries of the Partnership and/or the Gables Trust) and the repayment of obligations of the Partnership and its Subsidiaries and any other Person in which it has an equity investment, and the making of capital contributions to its Subsidiaries;
(v5) the management, operation, leasing, landscaping, repair, alteration, demolition or improvement of any real property or improvements owed by the Partnership or any Subsidiary of the Partnership;
(6) the negotiation, execution execution, and performance of any contracts, conveyances or other instruments on behalf that the General Partner considers useful or necessary to the conduct of the Partnership generally Partnership's operations or the applicable Seriesimplementation of the General Partner's powers under this Agreement, including contracting with contractors, developers, consultants, accountants, legal counsel, other professional advisors and other agents and the payment of their expenses and compensation out of the Partnership's assets;
(vi7) the distribution of Partnership cash or property of the applicable Seriesother Partnership assets in accordance with this Agreement;
(vii8) holding, managing, investing and reinvesting cash and other assets of the Partnership;
(9) the collection and receipt of revenues and income of the Partnership;
(10) the establishment of one or more divisions of the Partnership, the selection and dismissal of employees of the Partnership, any division of the Partnership, or the General Partner (including, without limitation, employees having titles such as "president," "vice president," "secretary" and "treasurer" of the Partnership, any division of the Partnership, or the General Partner), and agents, outside attorneys, accountants, consultants and contractors of the General Partner or the Partnership or any division of the Partnership, and the determination of their compensation and other terms of employment or hiring;
(11) the maintenance of separate or joint such insurance policies for the benefit of the Partnership, any Series, any Partnership and the Partners as it deems necessary or any Indemniteesappropriate;
(viii12) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies ventures or other relationships subject that it deems desirable (including, without limitation, the acquisition of interests in, and the contributions of property to, its Subsidiaries and any other Person in which it has an equity investment from time to the restrictions set forth in Section 2.4time);
(ix13) the control of any matters affecting the rights and obligations of the Partnership or the applicable SeriesPartnership, including the bringing and defending settlement, compromise, submission to arbitration or any other form of actions at law dispute resolution, or in equity and otherwise engaging in abandonment of, any claim, cause of action, liability, debt or damages, due or owing to or from the conduct Partnership, the commencement or defense of litigationsuits, legal proceedings, administrative proceedings, arbitration or mediation other forms of dispute, resolution, and the representation of the Partnership in all suits or legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, the incurring of legal expense expense, and the settlement of claims and litigation; and
(x) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(14) the undertaking of any action in connection with the Partnership's direct or indirect investment in its Subsidiaries or any other Person (including, without limitation, the contribution or loan of funds by the Partnership to such Persons);
(15) the determination of the fair market value of any Partnership property distributed in kind using such reasonable method of valuation as the General Partner may adopt;
(16) the exercise, directly or indirectly, through any attorney-in-fact acting under a general or limited power of attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(17) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(18) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest pursuant to contractual or other arrangements with such Person; and
(19) the making, execution and delivery of any and all deeds, leases, notes, deeds to secure debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreement in writing necessary or appropriate in the judgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement.
B. Each of the Limited Partners agrees that the General Partner is authorized to execute, deliver and perform the above-mentioned agreements and transactions on behalf of the Partnership without any further act, approval or vote of the Partners, notwithstanding any other provision of this Agreement (except as provided in Section 7.3), the Act or any applicable law, rule or regulation, to the fullest extent permitted under the Act or other applicable law. The execution, delivery or performance by the General Partner or the Partnership of any agreement authorized or permitted under this Agreement shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement or of any duty stated or implied by law or equity.
C. At all times from and after January 26, 1994, the General Partner may cause the Partnership to obtain and maintain (i) casualty, liability and other insurance on the properties of the Partnership and (ii) liability insurance for the Indemnitees hereunder.
D. At all times from and after January 26, 1994, the General Partner may cause the Partnership to establish and maintain at any and all times working capital accounts and other cash or similar balances in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
E. In exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner of any action taken by it; provided that, if the General Partner decides to refinance (directly or indirectly) any outstanding indebtedness of the Partnership, the General Partner shall use reasonable efforts to structure such refinancing in a manner that minimizes any adverse tax consequences therefrom to the Limited Partners, and provided further that, in deciding whether or not to dispose of any property that represents more than one percent of the Partnership's total assets, the General Partner shall consider in good faith the income tax consequences of such disposition for both the General Partner and the Limited Partners. The General Partner and the Partnership shall not have liability to a Limited Partner under any circumstances as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner pursuant to its authority under this Agreement.
Appears in 1 contract
Sources: Limited Partnership Agreement (Gables Realty Limited Partnership)
Management. (a) The Managing General Partner of the Partnership generally shall conduct, direct and manage all activities of the Partnership generally, and the Managing General Partner of each Series shall conduct, direct and manage all activities of the Series for which it serves as Managing General Partner. A. Except as otherwise expressly provided in this AgreementAgreement or as delegated or provided to an Additional General Partner by the Managing General Partner pursuant to Section 4.2.A and Section 11.2 hereof, (i) all management powers over the business and affairs of the Partnership generally are and shall be exclusively vested in the Managing General Partner of the Partnership generallyPartner, and no Limited Partner or other General Partner shall have any right to participate in or exercise control or management power over the business and affairs of (the Partnership. The General Partner may not be removed by the Partners, with or authority to bind) without cause, except with the Partnership generally and (ii) all management powers over the business and affairs consent of each Series shall be exclusively vested in the Managing General Partner of such Series, and no Limited Partner or other General Partner shall have any management power over the business and affairs of (or authority to bind) such SeriesPartner. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or that are granted to a Managing the General Partner under any other provision of this Agreement, each the Managing General Partner, subject to any approval required by the other provisions hereof including Section 7.4, Section 7.5 or any other provision of this Agreement7.3, shall have full power and authority to do all things and on such terms as it determines to be deemed necessary or appropriate desirable by it to conduct the business of the Partnership generally or the applicable Series, as the case may bePartnership, to exercise all powers set forth in Section 2.5 3.2 hereof and to effectuate the purposes set forth in Section 2.43.1 hereof, including the followingincluding, without limitation:
(i1) the making of any expenditures, the lending or borrowing of moneymoney or selling assets (including, without limitation, making prepayments on loans and borrowing money to permit the Partnership to make distributions to the Holders in such amounts as will permit WEA (so long as WEA qualifies as a REIT) to avoid the payment of any Federal income tax (including, for this purpose, any excise tax pursuant to Code Section 4981) and to make distributions to its shareholders sufficient to permit WEA to maintain REIT status or otherwise to satisfy the REIT Requirements), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtedness (including the securing of same by deed to secure debt, mortgage, deed of trust or other lien or encumbrance on the Partnership's assets) and the incurring of any other obligationsobligations that it deems necessary for the conduct of the activities of the Partnership;
(ii2) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership and each Series (other than in connection with the matters set forth in Section 9.3)Partnership;
(iii3) the acquisition, dispositionsale, mortgagetransfer, pledgeexchange or other disposition of any, encumbrance, hypothecation all or exchange of any or substantially all of the assets of the applicable Series Partnership (including, but not limited to, the exercise or grant of any conversion, option, privilege or subscription right or any other right available in connection with any assets at any time held by the Partner- ship) or the merger merger, consolidation, reorganization or other combination of the Partnership with or into another Personentity;
(iv4) the mortgage, pledge, encumbrance or hypothecation of any assets of the Partnership, the use of the assets of the applicable Series Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms that it sees fit, including, without limitation, the financing of the operations and activities of the Managing General Partner, the Partnership or any of the Partnership's Subsidiaries, the lending of funds to other Persons (including, without limitation, the Managing General Partner and/or the Partnership's Subsidiar ies) and the repayment of obligations of the Partnership, its Subsidiaries and any other Person in which the Partnership has an equity investment, and the making of capital contributions to and equity investments in the Partnership's Subsidiaries;
(v5) the management, operation, leasing, landscaping, repair, alteration, demolition, replacement or improvement of any Property, including, without limitation, any Contributed Property, or other asset of the Partnership or any Subsidiary, whether pursuant to a Management Agreement or otherwise;
(6) the negotiation, execution and performance of any contracts, leases, conveyances or other instruments on behalf that the Managing General Partner considers useful or necessary to the conduct of the Partnership generally Partnership's operations or the applicable Seriesimplementation of the Managing General Partner's powers under this Agreement, including contracting with contractors, developers, consultants, accountants, legal counsel, other professional advisors and other agents (including, without limitation, the Advisor, the Developer and the Property Manager) and the payment of their expenses and compensation out of the Partnership's assets;
(vi7) the distribution of Partnership cash or property other Partnership assets in accordance with this Agreement, the holding, management, investment and reinvestment of cash and other assets of the applicable SeriesPartnership, and the collection and receipt of revenues, rents and income of the Partnership;
(vii8) the selection and dismissal of employees of the Partnership (if any) or the Managing General Partner (including, without limitation, employees having titles or offices such as "president," "vice president," "secretary" and "treasurer"), and agents, outside attorneys, accountants, consultants and contractors of the Partnership or the Managing General Partner and the determination of their compen sation and other terms of employment or hiring;
(9) the maintenance of separate or joint such insurance policies for the benefit of the Partnership, any Series, any Partnership and the Partners and Investors as it deems necessary or any Indemniteesappropriate;
(viii10) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies companies, joint ventures or other relationships subject that it deems desirable (including, without limitation, the acquisition of interests in, and the contributions of property to, any Subsidiary and any other Person in which it has an equity investment from time to time); provided, however, that, as long as WEA has determined to continue to -------- ------- qualify as a REIT, the restrictions set forth Managing General Partner will not engage in Section 2.4any such formation, acquisition or contribution that would cause WEA to fail to qualify as a REIT;
(ix11) the control of any matters affecting the rights and obligations of the Partnership or the applicable SeriesPartnership, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigationsettlement, compromise, submission to arbitration or mediation any other form of dispute resolution, or abandonment, of any claim, cause of action, liability, debt or damages, due or owing to or from the Partnership, the commencement or defense of suits, legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, and the representation of the Partnership in all suits or legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, the incurring of legal expense expense, and the settlement of claims and litigation; and
(x) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(12) the undertaking of any action in connection with the Partnership's direct or indirect investment in any Subsidiary or any other Person (including, without limitation, the contribution or loan of funds by the Partnership to such Persons);
(13) the determination of the fair market value of any Partnership property distributed in kind using such reasonable method of valuation as it may adopt; provided that such methods are otherwise -------- consistent with the requirements of this Agreement;
(14) the enforcement of any rights against any Partner pursuant to representations, warranties, covenants and indemnities relating to such Partner's contribution of property or assets to the Partnership;
(15) the enforcement of any rights against any Investor pursuant to representations, warranties, covenants and indemnities relating to such Investor's contribution of property or assets to the Partnership;
(16) the exercise, directly or indirectly, through any attorney- in-fact acting under a general or limited power of attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(17) the exercise of any of the powers of the Managing General Partner enumerated in this Agreement on behalf of or in connection with any Subsid iary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(18) the exercise of any of the powers of the Managing General Partner enumerated in this Agreement on behalf of any Person in which the Partner ship does not have an interest (including, without limitation, WEA), pursuant to contractual or other arrangements with such Person;
(19) the making, execution and delivery of any and all deeds, leases, notes, deeds to secure debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate in the judgment of the Managing General Partner for the accomplishment of any of the powers of the Managing General Partner enumerated in this Agreement;
(20) the issuance of additional Partnership Units, as appropriate and in the Managing General Partner's sole and absolute discretion, in connection with Capital Contributions by Additional Limited Partners and additional Capital Contributions by Partners pursuant to Article 4 hereof;
(21) the grant of additional Investor Unit Rights, as appropriate and in the Managing General Partner's sole and absolute discretion, in connection with Capital Contributions by Persons in exchange for Investor Unit Rights and additional Capital Contributions by Investors pursuant to Article 13 hereof; and
(22) an election to dissolve the Partnership pursuant to Section 14.1.C hereof.
B. Each of the Limited Partners agrees that, except as provided in Section 7.3 hereof, the Managing General Partner is authorized to execute, deliver and perform the above-mentioned agreements and transactions on behalf of the Partnership without any further act, approval or vote of the Partners or any other Persons, notwithstanding any other provision of the Act or any applicable law, rule or regulation.
C. At all times from and after the date hereof, the Managing General Partner may cause the Partnership to obtain and maintain (i) casualty, liability and other insurance on the Properties of the Partnership and (ii) liability insurance for the Indemnitees hereunder.
D. At all times from and after the date hereof, the Managing General Partner may cause the Partnership to establish and maintain working capital and other reserves in such amounts as the Managing General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
E. In exercising its authority under this Agreement, the Managing General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner (including the Managing General Partner) of any action taken by it. The Managing General Partner and the Partnership shall not have liability to a Limited Partner under any circumstances as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the Managing General Partner pursuant to its authority under this Agreement.
Appears in 1 contract
Sources: Limited Partnership Agreement (Westfield America Inc)
Management. (a) The Managing General Partner of the Partnership generally shall conduct, direct and manage all activities of the Partnership generally, and the Managing General Partner of each Series shall conduct, direct and manage all activities of the Series for which it serves as Managing General Partner. A0 Except as otherwise expressly provided in this Agreement, (i) all management powers over full, complete and exclusive discretion to manage and control the business and affairs of the Partnership generally are and shall be exclusively vested in the Managing General Partner of the Partnership generallyPartner, and no Limited Partner or other General Partner shall have any right to participate in or exercise control or management power over the business and affairs of (or authority to bind) the Partnership generally and (ii) all management powers over the business and affairs of each Series shall be exclusively vested in the Managing Partnership. The General Partner of such Series, and no may not be removed by the Limited Partner Partners with or other General Partner shall have any management power over the business and affairs of (or authority to bind) such Serieswithout cause. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or that which are granted to a Managing the General Partner under any other provision of this Agreement, each Managing the General Partner, subject to any approval required by Section 7.4, Section 7.5 or any other provision of this Agreement, Partner shall have full power and authority to do all things and on such terms as it determines to be deemed necessary or appropriate desirable by it to conduct the business of the Partnership generally or the applicable Series, as the case may bePartnership, to exercise all powers set forth in Section 2.5 3.2 hereof and to effectuate the purposes set forth in Section 2.43.1 hereof, including the followingincluding, without limitation:
(ia) the making of any expenditures, the lending or borrowing of money, including, without limitation, making prepayments on loans and borrowing money to permit the Partnership to make distributions to its Partners in such amounts as will permit the Company (so long as the Company qualifies as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Section 4981 of the Code) and to make distributions to its stockholders in amounts sufficient to permit the Company to maintain REIT status, (b) the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, (c) the issuance of evidences evidence of indebtedness (including the securing of the same by deed, mortgage, deed of trust or other lien or encumbrance on the Partnership's assets) and (d) the incurring of any other obligationsobligations it deems necessary for the conduct of the activities of the Partnership, including the payment of all expenses associated with the Company;
(ii2) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership and each Series (other than in connection with or the matters set forth in Section 9.3)Company;
(iii3) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the applicable Series Partnership (including the exercise or grant of any conversion, option, privilege, or subscription right or other right available in connection with any assets at any time held by the Partnership) or the merger or other combination of the Partnership with or into another Personentity;
(iv4) the use of the assets of the applicable Series Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this Agreement;
Agreement and on any terms it sees fit, including, without limitation, the financing of the conduct of the operations of the Company, the Partnership or any of the Partnership's Subsidiaries, the lending of funds to other Persons (vincluding, without limitation, the Subsidiaries of the Partnership and/or the Company) and the repayment of obligations of the Partnership and its Subsidiaries and any other Person in which it has an equity investment, and the making of capital contributions to its Subsidiaries; (5) the expansion, development, construction, leasing, repair, alteration, demolition or improvement of any Hotel owned by the Partnership or any Subsidiary of the Partnership; (6) the negotiation, execution execution, and performance of any contractscontracts (including, without limitation, the Participating Leases), conveyances or other instruments on behalf that the General Partner considers useful or necessary to the conduct of the Partnership generally Partnership's operations or the applicable Series;
implementation of the General Partner's powers under this Agreement, including contracting with contractors, developers, consultants, accountants, legal counsel, other professional advisors and other agents and the payment of their expenses and compensation out of the Partnership's assets; (vi7) the distribution of Partnership cash or property of the applicable Seriesother Partnership assets in accordance with this Agreement;
(vii) the maintenance of separate or joint insurance policies for the benefit of the Partnership, any Series, any Partners or any Indemnitees;
(viii) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies or other relationships subject to the restrictions set forth in Section 2.4;
(ix) the control of any matters affecting the rights and obligations of the Partnership or the applicable Series, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigation, arbitration or mediation and the incurring of legal expense and the settlement of claims and litigation; and
(x) the indemnification of any Person against liabilities and contingencies to the extent permitted by law.
Appears in 1 contract
Sources: Limited Partnership Agreement (Meristar Hospitality Corp)
Management. (a) The Managing General Partner of the Partnership generally shall conduct, direct and manage all activities of the Partnership generally, and the Managing General Partner of each Series shall conduct, direct and manage all activities of the Series for which it serves as Managing General Partner. A. Except as otherwise expressly provided in this Agreement, (i) all management powers over the business and affairs of the Partnership generally are and shall be exclusively vested in the Managing General Partner of the Partnership generallyPartner, and no Limited Partner or other General Partner shall have any right to participate in or exercise control or management power over the business and affairs of (or authority to bind) the Partnership generally and (ii) all management powers over the business and affairs of each Series shall be exclusively vested in the Managing Partnership. The General Partner may not be removed by the Partners with or without cause, except with the Consent of such Series, and no Limited Partner or other the General Partner shall have any management power over the business and affairs of (or authority to bind) such SeriesPartner. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law the Act or that are granted to a Managing the General Partner under any other provision of this Agreement, each Managing the General Partner, subject to any approval required by the other provisions hereof including Section 7.4, Section 7.5 or any other provision of this Agreement7.3, shall have full power and authority to do all things and on such terms as it determines to be deemed necessary or appropriate desirable by it to conduct the business of the Partnership generally or the applicable Series, as the case may bePartnership, to exercise all powers set forth in Section 2.5 3.2 hereof and to effectuate the purposes set forth in Section 2.43.1 hereof, including the followingincluding, without limitation:
(i1) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money or selling assets to permit the Partnership to make distributions to its Partners in such amounts as will permit the General Partner (so long as the General Partner qualifies as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Code Section 4981) and to make distributions to its shareholders sufficient to permit the General Partner to maintain REIT status or otherwise to satisfy the REIT Requirements), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtedness (including the securing of same by deed to secure debt, mortgage, deed of trust or other lien or encumbrance on the Partnership's assets) and the incurring of any other obligationsobligations that it deems necessary for the conduct of the activities of the Partnership;
(ii2) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership and each Series (other than in connection with the matters set forth in Section 9.3)Partnership;
(iii3) the acquisition, dispositionsale, mortgagetransfer, pledgeexchange or other disposition of any, encumbrance, hypothecation all or exchange of any or substantially all of the assets of the applicable Series Partnership (including, but not limited to, the exercise or grant of any conversion, option, privilege or subscription right or any other right available in connection with any assets at any time held by the Partnership) or the merger merger, consolidation, reorganization or other combination of the Partnership with or into another Personentity;
(iv4) the mortgage, pledge, encumbrance or hypothecation of any assets of the Partnership, the use of the assets of the applicable Series Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this Agreement;
(v) Agreement and on any terms that it sees fit, including, without limitation, the negotiation, execution and performance of any contracts, conveyances or other instruments on behalf financing of the Partnership generally or the applicable Series;
(vi) the distribution of cash or property operations and activities of the applicable Series;
(vii) General Partner, the maintenance of separate Partnership or joint insurance policies for the benefit any of the Partnership's Subsidiaries, any Seriesthe lending of funds to other Persons (including, any Partners or any Indemnitees;
(viiiwithout limitation, the Partnership's Subsidiaries) the formation of, or acquisition of an interest in, and the contribution repayment of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies or other relationships subject to the restrictions set forth in Section 2.4;
(ix) the control of any matters affecting the rights and obligations of the Partnership or the applicable Series, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigation, arbitration or mediation and the incurring of legal expense and the settlement of claims and litigation; and
(x) the indemnification of any Person against liabilities and contingencies to the extent permitted by law.Partnership,
Appears in 1 contract
Sources: Limited Partnership Agreement (Fortress Investment Corp)
Management. (a) The Managing General Partner of the Partnership generally shall conduct, direct and manage all activities of the Partnership generally, and the Managing General Partner of each Series shall conduct, direct and manage all activities of the Series for which it serves as Managing General Partner. 7.1.1 Except as otherwise expressly provided in this Agreement, (i) all management powers over the business and affairs of the Partnership generally are and shall be exclusively vested in the Managing General Partner of the Partnership generallyPartner, and no Limited Partner or other General Partner shall have any right to participate in or exercise control or management power over the business and affairs of (or authority to bind) the Partnership generally and (ii) all management powers over the business and affairs of each Series shall be exclusively vested in the Managing Partnership. The General Partner may not be removed by the Partners with or without cause, except with the consent of such Series, and no Limited Partner or other the General Partner shall have any management power over the business and affairs of (or authority to bind) such SeriesPartner. In addition to the powers now or hereafter granted to a general partner of a limited partnership under applicable law or that are granted to a Managing the General Partner under any other provision of this Agreement, each Managing the General Partner, subject to any approval required by Section 7.4, Section 7.5 or any the other provision of this Agreementprovisions hereof, shall have full power and authority to do all things and on such terms as it determines to be deemed necessary or appropriate desirable by it to conduct the business of the Partnership generally or the applicable Series, as the case may bePartnership, to exercise all powers set forth in Section 2.5 3.2 hereof and to effectuate the purposes set forth in Section 2.43.1 hereof, including the followingincluding, without limitation:
(ia) the making of any expenditures, the lending or borrowing of moneymoney (including making prepayments on loans and borrowing money or selling assets to permit the Partnership to make distributions to its Partners in such amounts as will permit the General Partner (so long as the General Partner desires to maintain or restore its status as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Code Section 4981) and to make distributions sufficient to permit the General Partner to maintain or restore REIT status or otherwise to satisfy the REIT Requirements), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtedness (including the securing of same by deed to secure debt, mortgage, deed of trust or other lien or encumbrance on the Partnership’s assets) and the incurring of any other obligationsobligations that it deems necessary for the conduct of the activities of the Partnership;
(iib) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership and each Series (other than in connection with the matters set forth in Section 9.3)Partnership;
(iiic) the acquisition, dispositionsale, mortgagelease, pledgetransfer, encumbranceexchange or other disposition of any, hypothecation all or exchange of any or substantially all of the assets of the applicable Series Partnership (including, but not limited to, the exercise or grant of any conversion, option, privilege or subscription right or any other right available in connection with any assets at any time held by the merger Partnership) or, subject to Section 8.6, the merger, consolidation, reorganization or other combination of the Partnership with or into another Personentity;
(ivd) the mortgage, pledge, encumbrance or hypothecation of any assets of the Partnership, the use of the assets of the applicable Series Partnership (including cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms that it sees fit, including the financing of the operations and activities of the General Partner, the Partnership or any of the Partnership’s Subsidiaries, the lending of funds to other Persons (including the Partnership’s Subsidiaries) and the repayment of obligations of the Partnership, its Subsidiaries and any other Person in which the Partnership has an equity investment, and the making of capital contributions to and equity investments in the Partnership’s Subsidiaries;
(ve) the management, operation, leasing, landscaping, repair, alteration, demolition, replacement or improvement of any Property, including any Contributed Property, or other asset of the Partnership or any Subsidiary, whether pursuant to a Services Agreement or otherwise;
(f) the negotiation, execution and performance of any contracts, leases, conveyances or other instruments on behalf that the General Partner considers useful or necessary to the conduct of the Partnership generally Partnership’s operations or the applicable Seriesimplementation of the General Partner’s powers under this Agreement, including contracting with contractors, developers, consultants, accountants, legal counsel, the Advisor’s other professional advisors and other agents and the payment of their expenses and compensation out of the Partnership’s assets;
(vig) the distribution of Partnership cash or property other Partnership assets in accordance with this Agreement, the holding, management, investment and reinvestment of cash and other assets of the applicable SeriesPartnership, and the collection and receipt of revenues, rents and income of the Partnership;
(viih) the maintenance of separate or joint such insurance policies for the benefit of the PartnershipPartnership and the Partners as it deems necessary or appropriate, any Seriesincluding (i) casualty, any Partners or any Indemniteesliability and other insurance on the Properties and (ii) liability insurance for the Indemnitees hereunder;
(viiii) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies companies, joint ventures or other relationships subject that it deems desirable (including the acquisition of interests in, and the contributions of property to, any Subsidiary and any other Person in which it has an equity investment from time to the restrictions set forth in Section 2.4time);
(ixj) the control of any matters affecting the rights and obligations of the Partnership or the applicable SeriesPartnership, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigationsettlement, compromise, submission to arbitration or mediation any other form of dispute resolution, or abandonment, of any claim, cause of action, liability, debt or damages, due or owing to or from the Partnership, the commencement or defense of suits, legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, and the representation of the Partnership in all suits or legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, the incurring of legal expense expense, and the settlement of claims and litigation; and
(x) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(k) the undertaking of any action in connection with the Partnership’s direct or indirect investment in any Subsidiary or any other Person (including the contribution of Property or contribution or loan of funds by the Partnership to such Persons);
(l) except as otherwise specifically set forth in this Agreement, the determination of the fair market value of any Partnership property distributed in kind using such method of valuation as it may reasonably adopt as long as such method is otherwise consistent with the requirements of this Agreement;
(m) the enforcement of any rights against any Partner pursuant to representations, warranties, covenants and indemnities relating to such Partner’s contribution of property or assets to the Partnership;
(n) the exercise, directly or indirectly, through any attorney-in-fact acting under a general or limited power of attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(o) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(p) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest, pursuant to contractual or other arrangements with such Person;
(q) the making, execution and delivery of any and all deeds, leases, notes, deeds to secure debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate in the judgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement;
(r) the issuance of additional Partnership Units, as appropriate and in the General Partner’s sole and absolute discretion, in connection with Capital Contributions by Additional Limited Partners and additional Capital Contributions by Partners pursuant to Section 4 hereof;
(s) the selection and dismissal of Partnership Employees (including employees having titles or offices such as president, vice president, secretary and treasurer), and agents, outside attorneys, accountants, consultants and contractors of the Partnership or the General Partner, the determination of their compensation and other terms of employment or hiring and the delegation to any such Partnership Employee the authority to conduct the business of the Partnership in accordance with the terms of this Agreement; and
(t) an election to dissolve the Partnership pursuant to Section 13.1.2 hereof.
7.1.2 Except as provided in Section 14.2 hereof, the General Partner is authorized to execute, deliver and perform the above-mentioned agreements and transactions on behalf of the Partnership without any further act, approval or vote of the Partners, notwithstanding any other provision of this Agreement, the Act or any applicable law, rule or regulation. To the fullest extent permitted by law, the execution, delivery or performance by the General Partner or the Partnership of any agreement authorized or permitted under this Agreement shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement or of any duty stated or implied by law or equity.
7.1.3 At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain working capital and other reserves in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
7.1.4 In exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner (including the General Partner) of any action taken by it. The General Partner and the Partnership shall not have liability to a Limited Partner under any circumstances as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner pursuant to its authority under this Agreement.
7.1.5 The General Partner may not take any action in contravention of this Agreement, including, without limitation:
(a) taking any action that would make it impossible to carry on the ordinary business of the Partnership, except as otherwise provided in this Agreement;
(b) possessing Property, or assigning any rights in specific Property, for other than a Partnership purpose except as otherwise provided in this Agreement, including Section 7.9;
(c) admitting a Person as a Partner, except as otherwise provided in this Agreement;
(d) performing any act that would subject a Limited Partner to liability as a general partner in any jurisdiction or any other liability except as otherwise provided in this Agreement or under the Act; or
(e) entering into any contract, mortgage, loan or other agreement that prohibits or restricts the ability of (a) the General Partner or the Partnership from satisfying its obligations under Section 8.5 hereof in full or (b) a Limited Partner from exercising its rights under Section 8.5 hereof to effect a Redemption in full, except, in either case, with the written consent of such Limited Partner adversely affected by the prohibition or restriction.
Appears in 1 contract
Sources: Limited Partnership Agreement (Pacific Office Properties Trust, Inc.)
Management. (a) The Managing General Partner of the Partnership generally shall conduct, direct and manage all activities of the Partnership generally, and the Managing General Partner of each Series shall conduct, direct and manage all activities of the Series for which it serves as Managing General Partner. A. Except as otherwise expressly provided in this Agreement, (i) all management powers over the business and affairs of the Partnership generally are and shall be exclusively vested in the Managing -25- 30 General Partner of the Partnership generallyPartner, and no Limited Partner or other General Partner shall have any right to participate in or exercise control or management power over the business and affairs of (or authority to bind) the Partnership generally and (ii) all management powers over the business and affairs of each Series shall be exclusively vested in the Managing Partnership. The General Partner of such Series, and no may not be removed by the Limited Partner Partners with or other General Partner shall have any management power over the business and affairs of (or authority to bind) such Serieswithout cause. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or that which are granted to a Managing the General Partner under any other provision of this Agreement, each Managing the General Partner, subject to any approval required by Section 7.4, Section 7.5 or any other provision of this Agreement, shall have full power and authority to do all things and on such terms as it determines to be deemed necessary or appropriate desirable by it to conduct the business of the Partnership generally or the applicable Series, as the case may bePartnership, to exercise all powers set forth in Section 2.5 3.2 hereof and to effectuate the purposes set forth in Section 2.43.1 hereof, including the followingincluding, without limitation:
(i1) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money to permit the Partnership to make distributions to its Partners in such amounts as will permit the General Partner (so long as the General Partner qualifies as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Section 4981 of the Code) and to make distributions to its shareholders in amounts sufficient to permit the General Partner to maintain REIT status), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences evidence of indebtedness (including the securing of the same by deed, mortgage, deed of trust or other lien or encumbrance on the Partnership's assets) and the incurring of any other obligationsobligations it deems necessary for the conduct of the activities of the Partnership;
(ii2) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership and each Series (other than in connection with the matters set forth in Section 9.3)Partnership;
(iii3) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the applicable Series Partnership (including the exercise or grant of any conversion, option, privilege, or subscription right or other right available in connection with any assets at any time held by the Partnership) or the merger or other combination of the Partnership with or into another Personentity;
(iv4) the use of the assets of the applicable Series Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms it sees fit, including, without limitation, the financing of the conduct of the operations of the General Partner, the Partnership or any of the Partnership's Subsidiaries, the lending of funds to other Persons (including, without limitation, the Subsidiaries of the Partnership and/or the General Partner) and the repayment of obligations of the Partnership and its Subsidiaries and any other Person in which it has an equity investment, and the making of capital contributions to its Subsidiaries, the holding of any
(5) the management, operation, leasing, collection of rents, marketing, landscaping, repair, alteration, renovation, rehabilitation, demolition or improvement of the Original Properties or any other real property or improvements owned by the Partnership or any Subsidiary of the Partnership and the performance of any and other acts necessary or appropriate to the operation of such properties, including, without limitation, applications for rezoning or objections to rezoning of such properties;
(v6) the negotiation, execution execution, and performance of any contracts, conveyances or other instruments that the General Partner considers useful or necessary to the conduct of the Partnership's operations or the implementation of the General Partner's powers under this Agreement, including, without limitation, the execution and delivery of leases on behalf of or in the Partnership generally or name of the applicable SeriesPartnership, contracting with contractors, developers, consultants, accountants, legal counsel, other professional advisors and other agents and the payment of their expenses and compensation out of the Partnership's assets;
(vi7) the opening and closing of bank accounts, the investment of Partnership funds in securities, certificates of deposit and other instruments, and the distribution of Partnership cash or property of the applicable Seriesother Partnership assets in accordance with this Agreement;
(vii8) the holding, managing, investing and reinvesting cash and other assets of the Partnership;
(9) the collection and receipt of revenues and income of the Partnership;
(10) the establishment of one or more divisions of the Partnership, the selection and dismissal of employees of the Partnership (including, without limitation, employees having titles such as "president," "vice president," "secretary" and "treasurer" of the Partnership), and agents, outside attorneys, accountants, consultants and contractors of the Partnership, and the determination of their compensation and other terms of employment or hiring (whether or not any of the foregoing are also employed by, consultants to, independent contractors for, or otherwise do business with the General Partner or its Affiliates in related or unrelated matters);
(11) the maintenance of separate or joint such insurance policies for the benefit of the PartnershipPartnership and the Partners as it deems necessary or appropriate (whether or not such is done as part of a group, any Seriescombined or other policy or policies under which the Partnership and the General Partner (or its Affiliates) are also insured, any Partners or any Indemniteesso -27- 32 long as the General Partner fairly allocates the expense thereof among the covered parties);
(viii12) the formation of, or acquisition of an interest in, and the contribution of some or all of property and the making of loans (or any part thereof or interest therein) to, any further limited or general partnerships, joint ventures, corporations, limited liability companies ventures or other relationships subject that it deems desirable (including, without limitation, the acquisition of interests in, and the contributions of property to, its Subsidiaries and any other Person in which it has an equity investment from time to the restrictions set forth in Section 2.4time);
(ix13) the control of any and all matters affecting the rights and obligations of the Partnership or the applicable SeriesPartnership, including the bringing and defending settlement, compromise, submission to arbitration or any other form of actions at law dispute resolution, or in equity and otherwise engaging in abandonment of, any claim, cause of action, liability, debt or damages, due or owing to or from the conduct Partnership, the commencement or defense of litigationsuits, legal proceedings, administrative proceedings, arbitration or mediation other forms of dispute resolution, and the representation of the Partnership in all suits or legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, the incurring of legal expense expense, and the settlement of claims and litigation; and
(x) the indemnification of any Person against liabilities and contingencies to the extent permitted by law and consistent with the terms of this Agreement, including in each and all of the foregoing instances any such matter or thing in which the General Partner or its Affiliates have a direct interest;
(14) the undertaking of any action in connection with the Partnership's direct or indirect investment in its Subsidiaries or any other Person (including without limitation, the contribution or loan of funds by the Partnership to such Persons);
(15) the determination of the fair market value of any Partnership property distributed in kind using such reasonable method of valuation as the General Partner may adopt;
(16) the exercise, directly or indirectly, through any attorney-in-fact acting under a general or limited power of attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(17) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or an interest jointly with any such Subsidiary or other Person;
(18) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in
(19) the making, execution and delivery of any and all deeds, leases, notes, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate, in the judgment of the General Partner, for the accomplishment of any of the powers of the General Partner enumerated in this Agreement; and
(20) the issuance of additional Limited Partnership Units or Partnership Interests, as appropriate, in connection with Capital Contributions by Additional Limited Partners and additional Capital Contributions by Partners pursuant to Article 4 hereof.
B. Each of the Limited Partners agrees that the General Partner is authorized to execute, deliver and perform the above-mentioned agreements and transactions on behalf of the Partnership without any further act, approval or vote of the Partners, notwithstanding any other provision of this Agreement, the Act or any applicable law, rule or regulation, to the fullest extent permitted under the Act or other applicable law, rule or regulation. The execution, delivery or performance by the General Partner or the Partnership of any agreement authorized or permitted under this Agreement shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement or of any duty stated or implied by law or equity.
C. At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain at any and all times working capital accounts and other cash or similar balances in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
D. In exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner of any action taken by it. The General Partner and the Partnership shall not have liability to a Limited Partner under any circumstances as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner taken pursuant to its authority under this Agreement and in accordance with the terms hereof.
Appears in 1 contract
Sources: Limited Partnership Agreement (Pacific Gulf Properties Inc)
Management. (a) The Managing General Partner of the Partnership generally shall conduct, direct and manage all activities of the Partnership generally, and the Managing General Partner of each Series shall conduct, direct and manage all activities of the Series for which it serves as Managing General Partner. A. Except as otherwise expressly provided in this Agreement, (i) all management powers over the business and affairs of the Partnership generally shall be are exclusively vested in the Managing General Partner of the Partnership generallyPartner, and no Limited Partner or other General Partner shall have any right to participate in or exercise control or management power over the business and affairs of (or authority to bind) the Partnership generally and (ii) all management powers over the business and affairs of each Series shall be exclusively vested in the Managing Partnership. The General Partner may not be removed by the Limited Partners with or without cause, except with the consent of such Series, and no Limited Partner or other the General Partner shall have any management power over the business and affairs of (or authority to bind) such SeriesPartner. In addition to the powers now or hereafter granted a general partner of a limited partnership under the Act and other applicable law or that which are granted to a Managing the General Partner under any other provision of this Agreement, each Managing the General Partner, subject to any approval required by the other provisions hereof including Section 7.4, Section 7.5 or any other provision of this Agreement7.3, shall have full power and authority to do all things and on such terms as it determines to be deemed necessary or appropriate desirable by it to conduct the business of the Partnership generally or the applicable Series, as the case may bePartnership, to exercise all powers set forth in Section 2.5 3.2 hereof and to effectuate the purposes set forth in Section 2.43.1 hereof, including the followingincluding, without limitation:
(i1) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans, borrowing money to fund operations through reverse repurchase agreements and other forms of financings, and borrowing money to permit the Partnership to make distributions to its Partners in such amounts as will permit the General Partner (so long as the General Partner has determined to qualify as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Section 4981 of the Code) and to make distributions to its stockholders sufficient to permit the General Partner to maintain REIT status), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtedness (including the securing of same by pledge or other lien or encumbrance on all or any of the Partnership's assets) and the incurring of any other obligationsobligations it deems necessary for the conduct of the activities of the Partnership;
(ii2) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership and each Series (other than in connection with the matters set forth in Section 9.3)Partnership;
(iii3) the acquisitionpurchase, dispositionorigination, mortgageholding, pledgefinancing, encumbrancesale or securitization (including, hypothecation without limitation, by issuing or exchange causing the issuance of CMOs and REMICs) of any Mortgage Assets or all of the other assets of the applicable Series Partnership, or the merger or other combination of the Partnership with or into another Personentity;
(iv4) the use pledge, hypothecation or other encumbrance of the all or any assets of the applicable Series (including cash on hand) Partnership for any purpose consistent with the terms of this AgreementAgreement and on any terms it sees fit, including, without limitation, the financing of the conduct or the operations of the General Partner or the Partnership, the lending of funds to other Persons (including, without limitation, the General Partner (if necessary to permit the financing or capitalization of a subsidiary of the General Partner or the Partnership) and any Subsidiaries of the Partnership) and the repayment of obligations of the Partnership, any of its Subsidiaries and any other Person in which it has an equity investment;
(v5) the negotiation, execution execution, and performance of any contracts, conveyances or other instruments on behalf documents, instruments, agreements or other writings that the General Partner considers useful or necessary to the conduct of the Partnership generally Partnership's operations or the applicable Seriesimplementation of the General Partner's powers under this Agreement;
(vi6) the distribution of Partnership cash or property of the applicable Seriesother Partnership assets in accordance with this Agreement;
(vii7) the selection and dismissal of employees of the Partnership (including, without limitation, employees having titles such as "president," "vice president," "secretary" and "treasurer"), and agents, outside attorneys, accountants, consultants and contractors of the Partnership, the determination of their compensation and other terms of employment or hiring, including waivers of conflicts of interest and the payment of their expenses and compensation out of the Partnership's assets;
(8) the maintenance of separate or joint such insurance policies for the benefit of the Partnership, any Series, any Partnership and the Partners as it deems necessary or any Indemniteesappropriate;
(viii9) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies ventures or other relationships subject that it deems desirable (including, without limitation, the acquisition of interests in, and the contributions of property to HCP, any Subsidiary of HCP or the restrictions set forth Partnership, and any other Person in Section 2.4which it has an equity investment from time to time); provided that, as long as the General Partner has determined to continue to qualify as a REIT, the Partnership may not engage in any such formation, acquisition or contribution that would cause the General Partner to fail to qualify as a REIT;
(ix10) the control of any matters affecting the rights and obligations of the Partnership or the applicable SeriesPartnership, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigation, arbitration or mediation litigation and the incurring of legal expense and the settlement of claims and litigation; and
(x) , and the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(11) the undertaking of any action in connection with the Partnership's direct or indirect investment in any Person (including, without limitation, contributing or loaning Partnership funds to, incurring indebtedness on behalf of, or guarantying the obligations of any such Persons);
(12) subject to the other provisions in this Agreement, the determination of the fair market value of any Partnership property distributed in kind using such reasonable method of valuation as it may adopt, provided that such methods are otherwise consistent with requirements of this Agreement;
(13) the engagement in hedging activities to the extent consistent with the Company's continued qualification as a REIT, including, without limitation, mandatory and optional forward selling of Mortgage Loans and Mortgage-Backed Securities, interest rate caps and floors and the buying and selling of futures and options on futures;
(14) holding, managing, investing and reinvesting cash and other assets of the Partnership;
(15) the collection and receipt of revenues and income of the Partnership;
(16) the exercise, directly or indirectly through any attorney-in-fact acting under a general or limited power of attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(17) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(18) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest, pursuant to contractual or other arrangements with such Person;
(19) the deposit, investment and reinvestment of Company cash in such accounts and funds as the General Partner shall determine to be appropriate pending the distribution of such cash or the use of such cash for Company purposes; and
(20) the making, execution and delivery of any and all purchase and sale agreements, loan or other financing agreements (including, without limitation, reverse repurchase agreements), deeds and leases (including, without limitation, to property acquired upon or in lieu of the foreclosure of Mortgage Assets), notes, employment and consulting agreements, management agreements, security agreements, conveyances, contracts (including, without limitation, hedging contracts), guarantees, warranties, indemnities, waivers, releases, legal instruments, certificates or other writings necessary or appropriate in the judgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement, including, without limitation, in connection with the purchase, origination, holding, financing, hedging, sale or securitization (including, without limitation, by issuing or causing the issuance of CMOs and REMICs) of any Mortgage Assets or other assets of the Partnership.
B. Each of the Limited Partners agrees that the General Partner is authorized to execute, deliver and perform the above-mentioned agreements and transactions on behalf of the Partnership without any further act, approval or vote of the partners, notwithstanding any other
Appears in 1 contract
Sources: Limited Partnership Agreement (Hanover Capital Holdings Inc)
Management. (a) The Managing General Partner of the Partnership generally shall conduct, direct and manage all activities of the Partnership generally, and the Managing General Partner of each Series shall conduct, direct and manage all activities of the Series for which it serves as Managing General Partner. Except as otherwise expressly provided in this Agreement, (i) all A. All management powers over the business and affairs of the Partnership generally are and shall be exclusively vested in the Managing General Partner of the Partnership generallyPartner, and no Limited Partner or other General Partner shall have any right to participate in or exercise control or management power over the business and affairs of (or authority to bind) the Partnership generally and (ii) all management powers over the business and affairs of each Series shall be exclusively vested in the Managing Partnership. The General Partner of such Series, and no may not be removed by the Limited Partner Partners with or other General Partner shall have any management power over the business and affairs of (or authority to bind) such Serieswithout cause. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or that which are granted to a Managing the General Partner under any other provision of this Agreement, each Managing the General Partner, subject to any approval required by Section 7.4, Section 7.5 or any other provision of shall (except as otherwise set forth in this Agreement, shall ) have full power and authority to do all things and on such terms as it determines to be deemed necessary or appropriate desirable by it to conduct the business of the Partnership generally or the applicable Series, as the case may bePartnership, to exercise all powers set forth in Section 2.5 3.2 hereof and to effectuate the purposes set forth in Section 2.43.1 hereof, including the followingincluding, without limitation:
(i1) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, borrowing of money from the General Partner or its affiliates as provided in Section 4.4 hereof, and making prepayments on loans and borrowing money to permit WEA (so long as WEA qualifies as a REIT) to avoid the payment of any federal income or excise tax and to permit WEA to maintain REIT status), the assumption or guarantee ofof (including, without limitation, the guarantee of indebtedness or obligations of the General Partner or any of its Affiliates), or other contracting for, indebtedness and other liabilities, the issuance of evidences evidence of indebtedness (including the securing of the same by deed, mortgage, deed of trust, negative pledge or other lien or encumbrance on the Partnership's assets) and the incurring of any other obligationsobligations it in good ▇▇▇▇▇ ▇▇▇▇▇ necessary for the conduct of the activities of the Partnership, the Mall Partnership, WEA or the Operating Partnership;
(ii2) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership and each Series (other than in connection with the matters set forth in Section 9.3)Partnership;
(iii3) subject to Section 8.7 hereof, the acquisition, sale, disposition, lease, mortgage, pledge, transfer, encumbrance, hypothecation or exchange of any or all of the assets of the applicable Series Partnership for the benefit of the Partnership, the Mall Partnership, WEA or the Operating Partnership, including, without limitation, the exercise or grant of any conversion option, privilege, negative pledge or subscription right or other right available in connection with any assets at any time held by the Partnership, the financing of the conduct of the operations of the Partnership, the Mall Partnership, WEA or the Operating Partnership, the secured or unsecured lending of funds to other Persons (including, without limitation, the Subsidiaries and Affiliates of the Partnership and/or the General Partner, provided that any loans to Affiliates of the General Partner shall be at a rate of interest not less than the prime rate in effect at the time such loan is made, as quoted in the Wall Street Journal) or the merger or other combination of the Partnership with or into another Personentity, and provided further that, without the consent of a majority in interest of the Limited Partners (excluding interests held by the General Partner or its Affiliates), the Partnership shall not acquire additional properties or asset unrelated to the Mall Partnership Interest during the Restricted Period;
(iv4) the use of the assets of the applicable Series Partnership (including including, without limitation, cash on handhand from whatever source) for any purpose consistent not inconsistent with the terms of this AgreementAgreement and on any terms it sees fit, including, without limitation, the repayment of obligations of the Partnership and its Subsidiaries and any other Person in which it has an equity investment, and the making of capital contributions to its Subsidiaries, the holding of any real, personal and mixed property of the Partnership in the name of the Partnership or in the name of a nominee or trustee and the creation, by grant or otherwise, of easements or servitudes;
(v5) the management, operation, leasing, collection of rents, marketing, landscaping, repair, alteration, renovation, rehabilitation, demolition or improvement of any real property or improvements owned by the Partnership or any Subsidiary of the Partnership, including, without limitation, entering into management agreements and performing any and all actions as contemplated by Section 7.3 hereof, and the performance of any and all other acts necessary or appropriate to the operation of such properties, including, without limitation, applications for rezoning or objections to rezoning of such properties;
(6) the negotiation, execution execution, and performance of any contracts, conveyances or other instruments that the General Partner considers useful or necessary to the conduct of the Partnership's operations or the implementation of the General Partner's powers under this Agreement, including, without limitation, the execution and delivery of leases on behalf of or in the Partnership generally or name of the applicable SeriesPartnership, contracting with contractors, developers, consultants, accountants, legal counsel, other professional advisors and other agents and the payment of their expenses and compensation out of the Partnership's assets;
(vi7) the negotiation, execution and performance of any contracts with Affiliates of the General Partner in accordance with the provisions of Section 7.5 hereof;
(8) the opening and closing of bank accounts, the investment of Partnership funds in securities, certificates of deposit and other instruments, and the distribution of Partnership cash or property of the applicable Seriesother Partnership assets in accordance with this Agreement;
(vii9) the holding, managing, investing and reinvesting cash and other assets of the Partnership;
(10) the collection and receipt of revenues and income of the Partnership;
(11) the establishment of one or more divisions of the Partnership, the selection and dismissal of agents, outside attorneys, accountants, consultants and contractors of the Partnership, and the determination of their compensation and other terms of hiring (whether or not any of the foregoing are also employed by, consultants to, independent contractors for, or otherwise do business with the General Partner or its Affiliates in related or unrelated matters);
(12) the maintenance of separate or joint such insurance policies for the benefit of the PartnershipPartnership and the Partners as it deems necessary or appropriate (whether or not such is done as part of a group, any Seriescombined or other policy or policies under which the Partnership and the General Partner (or its Affiliates) are also insured, any Partners or any Indemniteesso long as the General Partner fairly allocates the expense thereof among the covered parties);
(viii13) the formation of, or acquisition of an interest in, and the contribution of some or all of property and the making of loans (or any part thereof or interest therein) to, any further limited or general partnerships, joint ventures, corporations, limited liability companies ventures or other relationships subject that it deems desirable (including, without limitation, the acquisition of interests in, and the contributions of property to, its Subsidiaries and any other Person in which it has an equity investment from time to the restrictions set forth in Section 2.4time);
(ix14) the control of any and all matters affecting the rights and obligations of the Partnership or the applicable SeriesPartnership, including the bringing and defending settlement, compromise, submission to arbitration or any other form of actions at law dispute resolution, or in equity and otherwise engaging in abandonment of, any claim, cause of action, liability, debt or damages, due or owing to or from the conduct Partnership, the commencement or defense of litigationsuits, legal proceedings, administrative proceedings, arbitration or mediation other forms of dispute resolution, and the representation of the Partnership in all suits or legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, the incurring of legal expense expense, and the settlement of claims and litigation; and
(x) the indemnification of any Person against liabilities and contingencies to the extent permitted by law and consistent with the terms of this Agreement, including in each and all of the foregoing instances any such matter or thing in which the General Partner or its Affiliates have a direct interest;
(15) the undertaking of any action in connection with the Partnership's direct or indirect investment in its Subsidiaries or any other Person (including without limitation, the contribution or loan of funds by the Partnership to such Persons);
(16) the determination of the fair market value of any Partnership property distributed in kind using such reasonable method of valuation as the General Partner may adopt;
(17) the exercise, directly or indirectly, through any attorney-in-fact acting under a general or limited power of attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(18) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(19) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest pursuant to contractual or other arrangements with such Person;
(20) the making, execution and delivery of any and all deeds, leases, notes, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate, in the judgment of the General Partner, for the accomplishment of any of the powers of the General Partner enumerated in this Agreement;
(21) the issuance of additional Partnership Units or Partnership Interests, as appropriate, in connection with Capital Contributions by Additional Limited Partners and additional Capital Contributions by Partners pursuant to Article 4 hereof;
(22) to perform or cause to be performed all such other acts required by this Agreement or not inconsistent herewith; and
(23) to execute, acknowledge and deliver any and all instruments necessary or desirable to effectuate any of the foregoing.
B. Each of the Limited Partners agrees that the General Partner is authorized to execute, deliver and perform the above-mentioned agreements and transactions on behalf of the Partnership without any further act, approval or vote of the Partners, notwithstanding, the Act or any applicable law, rule or regulation, to the fullest extent permitted under the Act or other applicable law, rule or regulation. The execution, delivery or performance by the General Partner or the Partnership of any agreement authorized or permitted under this Agreement shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement or of any duty stated or implied by law or equity.
C. At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain at any and all times working capital accounts and other cash or similar balances in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
D. In exercising its authority under this Agreement, the General Partner may, but, except as otherwise expressly provided in this Agreement or in any other Agreement to which the Partnership is a party or by which it is bound, shall be under no obligation to, take into account the tax consequences to any Partner of any action taken by it. The General Partner and the Partnership shall not have liability to a Limited Partner under any circumstances as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner taken pursuant to its authority under this Agreement and in accordance with the terms hereof.
Appears in 1 contract
Sources: Limited Partnership Agreement (Westfield America Inc)
Management. (a) The Managing General Partner of the Partnership generally shall conduct, direct and manage all activities of the Partnership generally, and the Managing General Partner of each Series shall conduct, direct and manage all activities of the Series for which it serves as Managing General Partner. A. Except as otherwise expressly provided in this Agreement, (i) all management powers over the business and affairs of the Partnership generally are and shall be exclusively vested in the Managing General Partner of the Partnership generallyPartner, and no Limited Partner or other General Partner shall have any right to participate in or exercise control or management power over the business and affairs of (or authority to bind) the Partnership generally and (ii) all management powers over the business and affairs of each Series shall be exclusively vested in the Managing Partnership. The General Partner may not be removed by the Partners with or without cause, except with the Consent of such Series, and no Limited Partner or other the General Partner shall have any management power over the business and affairs of (or authority to bind) such SeriesPartner. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or that are granted to a Managing the General Partner under any other provision of this Agreement, each Managing the General Partner, subject to any approval required by the other provisions hereof including Section 7.4, Section 7.5 or any other provision of this Agreement7.3, shall have full power and authority to do all things and on such terms as it determines to be deemed necessary or appropriate desirable by it to conduct the business of the Partnership generally or the applicable Series, as the case may bePartnership, to exercise all powers set forth in Section 2.5 3.2 hereof and to effectuate the purposes set forth in Section 2.43.1 hereof, including the followingincluding, without limitation:
(i1) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money to permit the Partnership to make distributions to its Partners in such amounts as will permit the General Partner (so long as the General Partner qualifies as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Code Section 4981) and to make distributions to its shareholders sufficient to permit the General Partner to maintain REIT status or otherwise to satisfy the REIT Requirements), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtedness (including the securing of same by deed to secure debt, mortgage, deed of trust or other lien or encumbrance on the Partnership’s assets) and the incurring of any other obligationsobligations that it deems necessary for the conduct of the activities of the Partnership;
(ii2) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership and each Series (other than in connection with the matters set forth in Section 9.3)Partnership;
(iii3) the acquisition, dispositionsale, mortgagetransfer, pledge, encumbrance, hypothecation exchange or exchange other disposition of any or all of the assets of the applicable Series Partnership (including, but not limited to, the exercise or grant of any conversion, option, privilege or subscription right or any other right available in connection with any assets at any time held by the Partnership) or the merger merger, consolidation, reorganization or other combination of the Partnership with or into another Personentity;
(ivi) the mortgage, pledge, encumbrance or hypothecation of any assets of the Partnership (including, without limitation, any Contributed Property) on such terms as the General Partner deems proper, which powers shall include, without limitation, the power to pledge any or all of the assets of the Partnership, or enter into a guarantee on behalf of the Partnership, to secure a loan or other financing for the benefit of New Plan or the General Partner (the proceeds of which are not required to be contributed or loaned to the Partnership) (provided, however, that New Plan shall indemnify the Partnership from and against any loss or expenses incurred as a result of such arrangement), or (ii) any other use of the assets of the applicable Series Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement which the General Partner believes will benefit the Partnership and on any terms that the General Partner sees fit, including, without limitation, the financing of the operations and activities of New Plan, the General Partner, the Partnership or any Subsidiaries of New Plan, the General Partner or the Partnership, the lending of funds to other Persons (including, without limitation, New Plan, the General Partner or any Subsidiaries of New Plan, the General Partner or the Partnership), the repayment of obligations of the Partnership, its Subsidiaries and any other Person in which it has an equity investment, and the making of capital contributions to and equity investments in the Partnership’s Subsidiaries;
(v5) the management, operation, leasing, landscaping, repair, alteration, demolition, replacement or improvement of any Property, including, without limitation, any Contributed Property, or other asset of the Partnership or any Subsidiary;
(6) the negotiation, execution and performance of any contracts, leases, conveyances or other instruments on behalf that the General Partner considers useful or necessary to the conduct of the Partnership generally Partnership’s operations or the applicable Seriesimplementation of the General Partner’s powers under this Agreement, including contracting with property managers (including, without limitation, as to any Contributed Property or other Property, contracting with the contributing or any other Limited Partner or its Affiliates for property management services), contractors, developers, consultants, accountants, legal counsel, other professional advisors and other agents and the payment of their expenses and compensation out of the Partnership’s assets;
(vi7) the distribution of Partnership cash or property other Partnership assets in accordance with this Agreement, the holding, management, investment and reinvestment of cash and other assets of the applicable SeriesPartnership, and the collection and receipt of revenues, rents and income of the Partnership;
(vii8) the selection and dismissal of employees of the Partnership or the General Partner (including, without limitation, employees having titles or offices such as “president,” “vice president,” “secretary” and “treasurer”), and agents, outside attorneys, accountants, consultants and contractors of the Partnership or the General Partner and the determination of their compensation and other terms of employment or hiring;
(9) the maintenance of separate or joint such insurance policies for the benefit of the Partnership, any Series, any Partnership and the Partners as it deems necessary or any Indemniteesappropriate;
(viii10) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies companies, joint ventures or other relationships subject that it deems desirable (including, without limitation, the acquisition of interests in, and the contributions of property to, any Subsidiary and any other Person in which it has an equity investment from time to time); provided, however, that, as long as New Plan has determined to continue to qualify as a REIT, the restrictions set forth General Partner may not engage in Section 2.4any such formation, acquisition or contribution that would cause New Plan to fail to qualify as a REIT;
(ix11) the control of any matters affecting the rights and obligations of the Partnership or the applicable SeriesPartnership, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigationsettlement, compromise, submission to arbitration or mediation any other form of dispute resolution, or abandonment, of any claim, cause of action, liability, debt or damages, due or owing to or from the Partnership, the commencement or defense of suits, legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, and the representation of the Partnership in all suits or legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, the incurring of legal expense expense, and the settlement of claims and litigation; and
(x) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(12) the undertaking of any action in connection with the Partnership’s direct or indirect investment in any Subsidiary or any other Person (including, without limitation, the contribution or loan of funds by the Partnership to such Persons);
(13) the determination of the fair market value of any Partnership property distributed in kind using such reasonable method of valuation as it may adopt, provided that such methods are otherwise consistent with the requirements of this Agreement;
(14) the enforcement of any rights against any Partner pursuant to representations, warranties, covenants and indemnities relating to such Partner’s contribution of property or assets to the Partnership;
(15) the exercise, directly or indirectly, through any attorney-in-fact acting under a general or limited power of attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(16) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(17) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest, pursuant to contractual or other arrangements with such Person;
(18) the making, execution and delivery of any and all deeds, leases, notes, deeds to secure debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate in the judgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement;
(19) the issuance of additional Partnership Units, as appropriate and in the General Partner’s sole and absolute discretion, in connection with Capital Contributions by Additional Limited Partners and additional Capital Contributions by Partners pursuant to Article 4 hereof.
B. Each of the Limited Partners agrees that, except as provided in Section 7.3 hereof, the General Partner is authorized to execute, deliver and perform the above-mentioned agreements and transactions on behalf of the Partnership without any further act, approval or vote of the Partners, notwithstanding any other provision of this Agreement (except as provided in Section 7.3 hereof), the Act or any applicable law, rule or regulation. The execution, delivery or performance by the General Partner or the Partnership of any agreement authorized or permitted under this Agreement shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement or of any duty stated or implied by law or equity.
C. At all times from and after the date hereof, the General Partner may cause the Partnership to obtain and maintain (i) casualty, liability and other insurance on the Properties of the Partnership and (ii) liability insurance for the Indemnitees hereunder.
D. At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain working capital and other reserves in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
E. In exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner (including the General Partner) of any action taken by it. The General Partner and the Partnership shall not have liability to a Limited Partner under any circumstances as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner pursuant to its authority under this Agreement so long as the action or inaction is taken in good faith.
Appears in 1 contract
Sources: Agreement of Limited Partnership (New Plan Excel Realty Trust Inc)
Management. (a) The Managing General Partner of the Partnership generally shall conduct, direct and manage all activities of the Partnership generally, and the Managing General Partner of each Series shall conduct, direct and manage all activities of the Series for which it serves as Managing General Partner. Except as otherwise expressly provided in this Agreement, (i) all management powers over the business and affairs of the Partnership generally are and shall be exclusively vested in the Managing General Partner of the Partnership generallyPartner, and no Limited Partner or other General Partner shall have any right to participate in or exercise control or management power over the business and affairs of (or authority to bind) the Partnership generally and (ii) all management powers over the business and affairs of each Series shall be exclusively vested in the Managing Partnership. The General Partner may not be removed by the Partners with or without cause, except with the Consent of such Series, and no Limited Partner or other the General Partner shall have any management power over the business and affairs of (or authority to bind) such SeriesPartner. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or that are granted to a Managing the General Partner under any other provision of this Agreement, each Managing the General Partner, subject to any approval required by the other provisions hereof including Section 7.4, Section 7.5 or any other provision of this Agreement7.3, shall have full power and authority to do all things and on such terms as it determines to be deemed necessary or appropriate desirable by it to conduct the business of the Partnership generally or the applicable Series, as the case may bePartnership, to exercise all powers set forth in Section 2.5 3.2 hereof and to effectuate the purposes set forth in Section 2.43.1 hereof, including the followingincluding, without limitation:
(i) the making of any expenditures, the lending or borrowing of money, the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtedness (including the securing of same by deed to secure debt, mortgage, deed of trust or other lien or encumbrance on the Partnership’s assets) and the incurring of any other obligationsobligations that it deems necessary for the conduct of the activities of the Partnership;
(ii) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership, and, if applicable, the registration of any class of securities of the Partnership under the Exchange Act, and each Series (other than in connection with the matters set forth in Section 9.3)listing of any debt securities of the Partnership on any exchange;
(iii) the acquisition, dispositionsale, mortgagetransfer, pledgeexchange or other disposition of any, encumbrance, hypothecation all or exchange of any or substantially all of the assets of the applicable Series Partnership (including, but not limited to, the exercise or grant of any conversion, option, privilege or subscription right or any other right available in connection with any assets at any time held by the Partnership) or the merger merger, consolidation, reorganization or other combination of the Partnership with or into another Personentity;
(iv) the mortgage, pledge, encumbrance or hypothecation of any assets of the Partnership, the assignment of any assets of the Partnership in trust for creditors or on the promise of the assignee to pay the debts of the Partnership, the use of the assets of the applicable Series Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms that it sees fit, including, without limitation, the financing of the operations and activities of the General Partner, the Partnership or any of the Partnership’s Subsidiaries, the lending of funds to other Persons (including, without limitation, the Partnership’s Subsidiaries) and the repayment of obligations of the Partnership, its Subsidiaries and any other Person in which the Partnership has an equity investment, and the making of capital contributions to and equity investments in the Partnership’s Subsidiaries;
(v) the management, operation, leasing, landscaping, development, repair, alteration, demolition, replacement or improvement of any Property, including, without limitation, any Contributed Property, or other asset of the Partnership or any Subsidiary;
(vi) the negotiation, execution and performance of any contracts, leases, easements, management agreements, rights of way and other property related agreements, conveyances or other instruments on behalf that the General Partner considers useful or necessary to the conduct of the Partnership generally Partnership’s operations or the applicable Series;
(vi) the distribution of cash or property implementation of the applicable SeriesGeneral Partner’s powers under this Agreement, including contracting with contractors, developers, consultants, governmental authorities, accountants, legal counsel, other professional advisors and other agents and the payment of their expenses and compensation, as applicable, out of the Partnership’s assets;
(vii) the distribution of Partnership cash or other Partnership assets in accordance with this Agreement, the holding, management, investment and reinvestment of cash and other assets of the Partnership, and the collection and receipt of revenues, rents and income of the Partnership;
(viii) the maintenance of separate or joint such insurance policies for the benefit of the Partnership and the Partners as it deems necessary or appropriate, including, without limitation, (i) casualty, liability and other insurance on the Properties of the Partnership, any Series, any Partners or any Indemniteesand (ii) liability insurance for the Indemnitees hereunder;
(viiiix) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies companies, joint ventures or other relationships subject that it deems desirable (including, without limitation, the acquisition of interests in, and the contributions of property to, any Subsidiary and any other Person in which it has an equity investment from time to the restrictions set forth in Section 2.4time);
(ixx) the control of any matters affecting the rights and obligations of the Partnership or the applicable SeriesPartnership, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigationsettlement, compromise, submission to arbitration or mediation any other form of dispute resolution, or abandonment, of any claim, cause of action, liability, debt or damages, due or owing to or from the Partnership, the commencement or defense of suits, legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, and the representation of the Partnership in all suits or legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, the incurring of legal expense expense, and the settlement of claims and litigation; and
(x) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xi) the undertaking of any action in connection with the Partnership’s direct or indirect investment in any Subsidiary or any other Person (including, without limitation, the contribution or loan of funds by the Partnership to such Persons);
(xii) except as otherwise specifically set forth in this Agreement, the determination of the fair market value of any Partnership property distributed in kind using such reasonable method of valuation as it may adopt; provided that such methods are otherwise consistent with the requirements of this Agreement;
(xiii) the enforcement of any rights against any Partner pursuant to representations, warranties, covenants and indemnities relating to such Partner’s contribution of property or assets to the Partnership;
(xiv) the exercise, directly or indirectly, through any attorney-in-fact acting under a general or limited power of attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(xv) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(xvi) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest, pursuant to contractual or other arrangements with such Person;
(xvii) the making, execution and delivery of any and all deeds, leases, notes, deeds to secure debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate in the judgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement;
(xviii) the issuance of additional Partnership Units, as appropriate and in the General Partner’s sole and absolute discretion, in connection with Capital Contributions by Additional Limited Partners and additional Capital Contributions by Partners pursuant to Article 4 hereof, including entering into Contribution Agreements;
(xix) the establishment of one or more divisions of the Partnership, the selection and dismissal of employees of the Partnership (including, without limitation, employees having titles such as “president,” “vice president,” “secretary” and “treasurer”), and agents, outside attorneys, accountants, consultants and contractors of the Partnership, the determination of their compensation and other terms of employment or hiring, including waivers of conflicts of interest and the payment of their expenses and compensation out of the Partnership’s assets; and
(xx) an election to dissolve the Partnership pursuant to Section 13.1(b) hereof.
(b) Each of the Limited Partners agrees that, except as provided in Section 7.3 hereof, the General Partner is authorized to execute, deliver and perform the above-mentioned agreements and transactions on behalf of the Partnership without any further act, approval or vote of the Partners, notwithstanding any other provision of this Agreement, the Act or any applicable law, rule or regulation. The execution, delivery or performance by the General Partner or the Partnership of any agreement authorized or permitted under this Agreement shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement or of any duty stated or implied by law or equity.
(c) At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain working capital and other reserves in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
(d) In exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner (including the General Partner) of any action taken by it. The General Partner and the Partnership shall not have liability to a Limited Partner under any circumstances as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner pursuant to its authority under this Agreement (except for any actions required pursuant to any Contribution Agreement).
(e) Except as otherwise provided herein, to the extent the duties of the General Partner require expenditures of funds to be paid to third parties, the General Partner shall not have any obligations hereunder except to the extent that Partnership funds are reasonably available to it for the performance of such duties, and nothing herein contained shall be deemed to authorize or require the General Partner, in its capacity as such, to expend its individual funds for payment to third parties or to undertake any individual liability or obligation on behalf of the Partnership.
Appears in 1 contract
Sources: Limited Partnership Agreement (Meruelo Maddux Properties, Inc.)
Management. (a) The Managing General Partner of the Partnership generally shall conduct, direct and manage all activities of the Partnership generally, and the Managing General Partner of each Series shall conduct, direct and manage all activities of the Series for which it serves as Managing General Partner. Except as otherwise expressly provided in this Agreement, (i) all management powers over the business and affairs of the Partnership generally are and shall be exclusively vested in the Managing General Partner of the Partnership generallyPartner, and no Limited Partner or other General Partner shall have any right to participate in or exercise control or management power over the business and affairs of (or authority to bind) the Partnership generally and (ii) all management powers over the business and affairs of each Series shall be exclusively vested in the Managing Partnership. The General Partner may not be removed by the Partners with or without cause, except with the Consent of such Series, and no Limited Partner or other the General Partner shall have any management power over the business and affairs of (or authority to bind) such SeriesPartner. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or that are granted to a Managing the General Partner under any other provision of this Agreement, each Managing the General Partner, subject to any approval required by the other provisions hereof including Section 7.4, Section 7.5 or any other provision of this Agreement7.3, shall have full power and authority to do all things and on such terms as it determines to be deemed necessary or appropriate desirable by it to conduct the business of the Partnership generally or the applicable Series, as the case may bePartnership, to exercise all powers set forth in Section 2.5 3.2 hereof and to effectuate the purposes set forth in Section 2.43.1 hereof, including the followingincluding, without limitation:
(i) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money or selling assets to permit the Partnership to make distributions to its Partners in such amounts as will permit the General Partner (so long as the General Partner qualifies as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Code Section 4981) and to make distributions to its shareholders sufficient to permit the General Partner to maintain REIT status or otherwise to satisfy the REIT Requirements), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtedness (including the securing of same by deed to secure debt, mortgage, deed of trust or other lien or encumbrance on the Partnership's assets) and the incurring of any other obligationsobligations that it deems necessary for the conduct of the activities of the Partnership;
(ii) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership and each Series (other than in connection with the matters set forth in Section 9.3)Partnership;
(iii) the acquisition, dispositionsale, mortgagetransfer, pledgeexchange or other disposition of any, encumbrance, hypothecation all or exchange of any or substantially all of the assets of the applicable Series Partnership (including, but not limited to, the exercise or grant of any conversion, option, privilege or subscription right or any other right available in connection with any assets at any time held by the Partnership) or the merger merger, consolidation, reorganization or other combination of the Partnership with or into another Personentity;
(iv) the mortgage, pledge, encumbrance or hypothecation of any assets of the Partnership, the use of the assets of the applicable Series Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms that it sees fit, including, without limitation, the financing of the operations and activities of the General Partner, the Partnership or any of the Partnership's Subsidiaries, the lending of funds to other Persons (including, without limitation, the Partnership's Subsidiaries) and the repayment of obligations of the Partnership, its Subsidiaries and any other Person in which the Partnership has an equity investment, and the making of capital contributions to and equity investments in the Partnership's Subsidiaries;
(v) the management, operation, leasing, landscaping, repair, alteration, demolition, replacement or improvement of any Property, including, without limitation, any Contributed Property, or other asset of the Partnership or any Subsidiary;
(vi) the negotiation, execution and performance of any contracts, leases, conveyances or other instruments on behalf that the General Partner considers useful or necessary to the conduct of the Partnership generally Partnership's operations or the applicable Series;
(vi) the distribution of cash or property implementation of the applicable SeriesGeneral Partner's powers under this Agreement, including contracting with contractors, developers, consultants, accountants, legal counsel, other professional advisors and other agents and the payment of their expenses and compensation out of the Partnership's assets;
(vii) the distribution of Partnership cash or other Partnership assets in accordance with this Agreement, the holding, management, investment and reinvestment of cash and other assets of the Partnership, and the collection and receipt of revenues, rents and income of the Partnership;
(viii) the maintenance of separate or joint such insurance policies for the benefit of the PartnershipPartnership and the Partners as it deems necessary or appropriate, any Seriesincluding, any Partners or any Indemniteeswithout limitation, (i) casualty, liability and other insurance on the Properties of the Partnership and (ii) liability insurance for the Indemnitees hereunder;
(viiiix) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies companies, joint ventures or other relationships subject that it deems desirable (including, without limitation, the acquisition of interests in, and the contributions of property to, any Subsidiary and any other Person in which it has an equity investment from time to time); provided, however, that, as long as the restrictions set forth General Partner has determined to continue to qualify as a REIT, the General Partner may not engage in any such formation, acquisition or contribution that would cause the General Partner to fail to qualify as a REIT within the meaning of Code Section 2.4856(a);
(ixx) the control of any matters affecting the rights and obligations of the Partnership or the applicable SeriesPartnership, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigationsettlement, compromise, submission to arbitration or mediation any other form of dispute resolution, or abandonment, of any claim, cause of action, liability, debt or damages, due or owing to or from the Partnership, the commencement or defense of suits, legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, and the representation of the Partnership in all suits or legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, the incurring of legal expense expense, and the settlement of claims and litigation; and
(x) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xi) the undertaking of any action in connection with the Partnership's direct or indirect investment in any Subsidiary or any other Person (including, without limitation, the contribution or loan of funds by the Partnership to such Persons);
(xii) except as otherwise specifically set forth in this Agreement, the determination of the fair market value of any Partnership property distributed in kind using such reasonable method of valuation as it may adopt; provided that such methods are otherwise consistent with the requirements of this Agreement;
(xiii) the enforcement of any rights against any Partner pursuant to representations, warranties, covenants and indemnities relating to such Partner's contribution of property or assets to the Partnership;
(xiv) the exercise, directly or indirectly, through any attorney-in- fact acting under a general or limited power of attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(xv) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(xvi) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest, pursuant to contractual or other arrangements with such Person;
(xvii) the making, execution and delivery of any and all deeds, leases, notes, deeds to secure debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate in the judgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement;
(xviii) the issuance of additional Partnership Units, as appropriate and in the General Partner's sole and absolute discretion, in connection with Capital Contributions by Additional Limited Partners and additional Capital Contributions by Partners pursuant to Article 4 hereof; and
(xix) an election to dissolve the Partnership pursuant to Section 13.1(c) hereof.
(b) Each of the Limited Partners agrees that, except as provided in Section 7.3 hereof, the General Partner is authorized to execute, deliver and perform the above-mentioned agreements and transactions on behalf of the Partnership without any further act, approval or vote of the Partners, notwithstanding any other provision of this Agreement, the Act or any applicable law, rule or regulation. The execution, delivery or performance by the General Partner or the Partnership of any agreement authorized or permitted under this Agreement shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement or of any duty stated or implied by law or equity.
(c) At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain working capital and other reserves in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
(d) In exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner (including the General Partner) of any action taken by it. The General Partner and the Partnership shall not have liability to a Limited Partner under any circumstances as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner pursuant to its authority under this Agreement.
Appears in 1 contract
Management. (a) The Managing General Partner of the Partnership generally shall conduct, direct and manage all activities of the Partnership generally, and the Managing General Partner of each Series shall conduct, direct and manage all activities of the Series for which it serves as Managing General Partner. Except as otherwise expressly provided in this Agreement, (i) all management powers over the business and affairs of the Partnership generally are and shall be exclusively vested in the Managing General Partner of the Partnership generallyPartner, and no Limited Partner or other General Partner shall have any right to participate in or exercise control or management power over the business and affairs of (or authority to bind) the Partnership generally and (ii) all management powers over the business and affairs of each Series shall be exclusively vested in the Managing Partnership. The General Partner may not be removed by the Partners with or without cause, except with the Consent of such Series, and no Limited Partner or other the General Partner shall have any management power over the business and affairs of (or authority to bind) such SeriesPartner. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or that are granted to a Managing the General Partner under any other provision of this Agreement, each Managing the General Partner, subject to any approval required by the other provisions hereof including Section 7.4, Section 7.5 or any other provision of this Agreement7.3, shall have full power and authority to do all things and on such terms as it determines to be deemed necessary or appropriate desirable by it to conduct the business of the Partnership generally or the applicable Series, as the case may bePartnership, to exercise all powers set forth in Section 2.5 3.2 hereof and to effectuate the purposes set forth in Section 2.43.1 hereof, including the followingincluding, without limitation:
(i) the making of any expenditures, the lending or borrowing of moneymoney (including, without limitation, making prepayments on loans and borrowing money or selling assets to permit the Partnership to make distributions to its Partners in such amounts as will permit the General Partner (so long as the General Partner qualifies as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Code Section 4981) and to make distributions to its shareholders sufficient to permit the General Partner to maintain REIT status or otherwise to satisfy the REIT Requirements), the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtedness (including the securing of same by deed to secure debt, mortgage, deed of trust or other lien or encumbrance on the Partnership's assets) and the incurring of any other obligationsobligations that it deems necessary for the conduct of the activities of the Partnership;
(ii) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership and each Series (other than in connection with the matters set forth in Section 9.3)Partnership;
(iii) the acquisition, dispositionsale, mortgagetransfer, pledgeexchange or other disposition of any, encumbrance, hypothecation all or exchange of any or substantially all of the assets of the applicable Series Partnership (including, but not limited to, the exercise or grant of any conversion, option, privilege or subscription right or any other right available in connection with any assets at any time held by the Partnership) or the merger merger, consolidation, reorganization or other combination of the Partnership with or into another Personentity;
(iv) the mortgage, pledge, encumbrance or hypothecation of any assets of the Partnership, the use of the assets of the applicable Series Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms that it sees fit, including, without limitation, the financing of the operations and activities of the General Partner, the Partnership or any of the Partner ship's Subsidiaries, the lending of funds to other Persons (including, without limitation, the Partnership's Subsidiaries) and the repayment of obligations of the Partnership, its Subsidiaries and any other Person in which the Partnership has an equity investment, and the making of capital contributions to and equity investments in the Partnership's Subsidiaries;
(v) the management, operation, leasing, landscaping, repair, alteration, demolition, replacement or improvement of any Property, including, without limitation, any Contributed Property, or other asset of the Partnership or any Subsidiary;
(vi) the negotiation, execution and performance of any contracts, leases, conveyances or other instruments on behalf that the General Partner considers useful or necessary to the conduct of the Partnership generally Partnership's operations or the applicable Series;
(vi) the distribution of cash or property implementation of the applicable SeriesGeneral Partner's powers under this Agreement, including contracting with contractors, developers, consultants, accountants, legal counsel, other professional advisors and other agents and the payment of their expenses and compensation out of the Partnership's assets;
(vii) the distribution of Partnership cash or other Partnership assets in accordance with this Agreement, the holding, management, investment and reinvestment of cash and other assets of the Partnership, and the collection and receipt of revenues, rents and income of the Partnership;
(viii) the maintenance of separate or joint such insurance policies for the benefit of the PartnershipPartnership and the Partners as it deems necessary or appropriate, any Seriesincluding, any Partners or any Indemniteeswithout limitation, (i) casualty, liability and other insurance on the Properties of the Partnership and (ii) liability insurance for the Indemnitees hereunder;
(viiiix) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies companies, joint ventures or other relationships subject that it deems desirable (including, without limitation, the acquisition of interests in, and the contributions of property to, any Subsidiary and any other Person in which it has an equity investment from time to time); provided, however, that, as long as the restrictions set forth General Partner has determined to continue to qualify as a REIT, the General Partner may not engage in any such formation, acquisition or contribution that would cause the General Partner to fail to qualify as a REIT within the meaning of Code Section 2.4856(a);
(ixx) the control of any matters affecting the rights and obligations of the Partnership or the applicable SeriesPartnership, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigationsettlement, compromise, submission to arbitration or mediation any other form of dispute resolution, or abandonment, of any claim, cause of action, liability, debt or damages, due or owing to or from the Partnership, the commencement or defense of suits, legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, and the representation of the Partner ship in all suits or legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, the incurring of legal expense expense, and the settlement of claims and litigation; and
(x) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xi) the undertaking of any action in connection with the Partnership's direct or indirect investment in any Subsidiary or any other Person (including, without limitation, the contribution or loan of funds by the Partnership to such Persons);
(xii) except as otherwise specifically set forth in this Agreement, the determination of the fair market value of any Partnership property distributed in kind using such reasonable method of valuation as it may adopt; provided that such methods are otherwise consistent with the requirements of this Agreement;
(xiii) the enforcement of any rights against any Partner pursuant to representations, warranties, covenants and indemnities relating to such Partner's contribution of property or assets to the Partnership;
(xiv) the exercise, directly or indirectly, through any attorney-in-fact acting under a general or limited power of attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(xv) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(xvi) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest, pursuant to contractual or other arrangements with such Person;
(xvii) the making, execution and delivery of any and all deeds, leases, notes, deeds to secure debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate in the judgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement;
(xviii) the issuance of additional Partnership Units, as appropriate and in the General Partner's sole and absolute discretion, in connection with Capital Contributions by Additional Limited Partners and additional Capital Contributions by Partners pursuant to Article 4 hereof; and
(xix) an election to dissolve the Partnership pursuant to Section 13.1(c) hereof.
(b) Each of the Limited Partners agrees that, except as provided in Section 7.3 hereof, the General Partner is authorized to execute, deliver and perform the above-mentioned agreements and transactions on behalf of the Partnership without any further act, approval or vote of the Partners, notwithstanding any other provision of this Agreement, the Act or any applicable law, rule or regulation. The execution, delivery or performance by the General Partner or the Partnership of any agreement authorized or permitted under this Agreement shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement or of any duty stated or implied by law or equity.
(c) At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain working capital and other reserves in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
(d) In exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner (including the General Partner) of any action taken by it. The General Partner and the Partnership shall not have liability to a Limited Partner under any circumstances as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner pursuant to its authority under this Agreement.
Appears in 1 contract
Management. (a) The Managing General Partner of the Partnership generally shall conduct, direct and manage all activities of the Partnership generally, and the Managing General Partner of each Series shall conduct, direct and manage all activities of the Series for which it serves as Managing General Partner. A. Except as otherwise expressly provided in this Agreement, (i) all management powers over the business and affairs of the Partnership generally are and shall be exclusively vested in the Managing General Partner of the Partnership generallyPartner, and and, except as provided in Section 8.1E hereof, no Limited Partner or other General Partner shall have any right to participate in or exercise control or management power over the business and affairs of (or authority to bind) the Partnership generally and (ii) all management powers over the business and affairs of each Series shall be exclusively vested in the Managing Partnership. The General Partner of such Series, and no may not be removed by the Limited Partner Partners with or other General Partner shall have any management power over the business and affairs of (or authority to bind) such Serieswithout cause. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or that which are granted to a Managing the General Partner under any other provision of this Agreement, each Managing the General PartnerPartner shall have, subject to any approval required by Section 7.48.1E hereof, Section 7.5 or any other provision of this Agreement, shall have full power and authority to do all things and on such terms as it determines to be deemed necessary or appropriate desirable by it to conduct the business of the Partnership generally or the applicable Series, as the case may bePartnership, to exercise all powers set forth in Section 2.5 4.2 hereof and to effectuate the purposes set forth in Section 2.44.1 hereof, including the followingincluding, without limitation:
(ia) the making of any expenditures, the lending or borrowing of money, including, without limitation, making prepayments on loans and borrowing money to permit the Partnership to make distributions to its Partners in such amounts as will permit the General Partner (so long as the General Partner qualifies as a REIT) to avoid the payment of any federal income tax (including, for this purpose, any excise tax pursuant to Section 4981 of the Code) and to make distributions to its stockholders in amounts sufficient to permit the General Partner to maintain REIT status, (b) the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, (c) the issuance of evidences evidence of indebtedness (including the securing of the same by deed, mortgage, deed of trust or other lien or encumbrance on the Partnership's assets) and (d) the incurring of any other obligationsobligations it deems necessary for the conduct of the activities of the Partnership;
(ii2) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership and each Series (other than in connection with the matters set forth in Section 9.3)Partnership;
(iii3) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the applicable Series Partnership (including the exercise or grant of any conversion, option, privilege, or subscription right or other right available in connection with any assets at any time held by the Partnership) or the merger or other combination of the Partnership with or into another Personentity;
(iv4) the use of the assets of the applicable Series Partnership (including including, without limitation, cash on hand) for any purpose consistent with the terms of this AgreementAgreement and on any terms it sees fit, including, without limitation, the financing of the conduct of the operations of the General Partner, the Partnership, the Property Owning Partnerships or any of the Partnership's Subsidiaries, the lending of funds to other Persons (including, without limitation, the Property Owning Partnerships, the Subsidiaries of the Partnership and/or the General Partner) and the repayment of obligations of the Partnership, the Property Owning Partnerships and the Subsidiaries of the Partnership and any other Person in which the Partnership has an equity investment, and the making of capital contributions to the Property Owning Partnerships and the Partnership's Subsidiaries;
(v5) the management, operation, expansion, development, construction, leasing, landscaping, repair, alteration, demolition or improvement of any real property or improvements owned by the Partnership or any Subsidiary of the Partnership;
(6) the negotiation, execution execution, and performance of any contracts, conveyances or other instruments on behalf that the General Partner considers useful or necessary to the conduct of the Partnership generally Partnership's operations or the applicable Seriesimplementation of the General Partner's powers under this Agreement, including (i) contracting with property managers, leasing agents, contractors, developers, consultants, accountants, legal counsel, other professional advisors and other agents, and (ii) the payment of such related expenses and compensation out of the Partnership's assets;
(vi7) the distribution of Partnership cash or property of the applicable Seriesother Partnership assets in accordance with this Agreement;
(vii8) holding, managing, investing and reinvesting cash and other assets of the Partnership;
(9) the collection and receipt of revenues and income of the Partnership;
(10) the establishment of one or more divisions of the Partnership, the selection and dismissal of employees of the Partnership (including, without limitation, employees having titles such as "president," "vice president," "secretary" and "treasurer" of the Partnership), and agents, outside attorneys, accountants, consultants and contractors of the Partnership, and the determination of their compensation and other terms of employment or engagement;
(11) the maintenance of separate or joint such insurance policies for the benefit of the Partnership, any Series, any Partnership and the Partners as it deems necessary or any Indemniteesappropriate;
(viii12) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies ventures or other relationships subject that it deems desirable (including, without limitation, the acquisition of interests in, and the contributions of property to, its Subsidiaries, the Property Owning Partnerships and any other Person in which it has an equity investment from time to the restrictions set forth in Section 2.4time);
(ix13) the control of any matters affecting the rights and obligations of the Partnership or the applicable SeriesPartnership, including the bringing and defending settlement, compromise, submission to arbitration or any other form of actions at law dispute resolution, or in equity and otherwise engaging in abandonment of, any claim, cause of action, liability, debt or damages, due or owing to or from the conduct Partnership, the commencement or defense of litigationsuits, legal proceedings, administrative proceedings, arbitration or mediation other forms of dispute resolution, and the representation of the Partnership in all suits or legal proceedings, administrative proceedings, arbitrations or other forms of dispute resolution, the incurring of legal expense expenses, and the settlement of claims and litigation; and
(x) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(14) the undertaking of any action in connection with the Partnership's direct or indirect investment in its Subsidiaries, the Property Owning Partnerships or any other Person (including, without limitation, the contribution or loan of funds by the Partnership to such Persons);
(15) the determination of the fair market value of any Partnership property distributed in kind using such reasonable method of valuation as the General Partner may adopt;
(16) the exercise, directly or indirectly, through any attorney-in-fact acting under a general or limited power of attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;
(17) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership, the Property Owning Partnerships or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;
(18) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest pursuant to contractual or other arrangements with such Person;
(19) the making, execution and delivery of any and all deeds, leases, notes, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate, in the judgment of the General Partner, for the accomplishment of any of the foregoing;
(20) the issuance of additional Partnership Interests, as appropriate, in connection with Capital Contributions by Additional Limited Partners and additional Capital Contributions by Partners pursuant to Article 5 hereof; and
(21) The opening of bank accounts on behalf of, and in the name of, the Partnership and its Subsidiaries.
B. Each of the Limited Partners agrees that the General Partner is authorized to execute, deliver and perform the above-mentioned agreements and transactions on behalf of the Partnership without any further act, approval or vote of the Partners (except as provided in Section 8.1E), notwithstanding any other provision of this Agreement, to the fullest extent permitted under the Act or other applicable law, rule or regulation. The execution, delivery or performance by the General Partner or the Partnership of any agreement authorized or permitted under this Agreement shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement or of any duty stated or implied by law or equity.
C. At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain at any and all times working capital accounts and other cash or similar balances in such amount as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.
D. Except as provided in Section 8.1E, in exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner of any action taken by it. The General Partner and the Partnership shall not have liability to a Limited Partner under any circumstances as a result of an income tax liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner taken pursuant to its authority under and in accordance with this Agreement.
E. Notwithstanding anything to the contrary set forth in this Agreement, until the Approval Right Termination Date, the General Partner shall not, without the prior written consent of the Upper Tier Limited Partnership (which may be given or withheld in its sole and absolute discretion) cause or permit (to the extent within the General Partner's reasonable control) any Adverse Transaction to occur, provided however that the General Partner shall be under no obligation to commence litigation or to incur any expense (unless JMB LP shall fund such expense) in order to avoid or prevent an Adverse Transaction from occurring. In addition, until the Approval Right Termination Date, the General Partner shall not, without the prior written consent of the Upper Tier Limited Partnership (which may be given or withheld in its sole and absolute discretion), have the power to take, on behalf of the Partnership as a limited partner of the Property Owning Partnerships, the following actions:
1. Consent to any Adverse Transaction (as such term is defined in the Property Owning Partnership Agreements) pursuant to Section 6.1E of the Property Owning Partnership Agreements;
2. Consent to the amendment of the Property Owning Partnership Agreements in a manner that would be prohibited under Sections 15.1B and 15.1C hereof with respect to this Agreement; and
3. Consent to the dissolution of the Property Owning Partnerships pursuant to Section 11.1C of the Property Owning Partnership Agreements. 11764.0001 340937.14 27
Appears in 1 contract
Sources: Limited Partnership Agreement (Metropolis Realty Trust Inc)