Exhibit 10.2
SECOND AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP
OF SERITAGE GROWTH PROPERTIES, L.P.
THIS SECOND AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP of Seritage Growth Properties, L.P. (the “Partnership”), dated January 4, 2023 (this “Agreement”), is entered into between the undersigned (herein called the “Partners,” which term shall include any persons hereafter admitted to the Partnership and shall exclude any persons who cease to be Partners).
WHEREAS, the Partnership was formed as a limited partnership under the laws of the State of Delaware including, without limitation, the Delaware Revised Uniform Limited Partnership Act (the “Delaware Act”) on April 22, 2015;
WHEREAS, the initial general partner and limited partners of the Partnership entered into an original agreement of limited partnership of the Partnership, effective as of July 7, 2015 (the “Original Partnership Agreement”);
WHEREAS, the Original Partnership Agreement was amended and restated by the Amended and Restated Agreement of Limited Partnership, effective as of December 14, 2017 (the “Prior Partnership Agreement”);
WHEREAS, effective January 1, 2022, Seritage Growth Properties, a Maryland real estate investment trust and the general partner of the Partnership (the “General Partner”), revoked its election to be a real estate investment trust for U.S. federal income tax purposes;
WHEREAS, on July 6, 2022, ESL Partners, L.P. and Edward S. Lampert, as limited partners of the Partnership, exercised their redemption rights with respect to all of their Common Units (as defined in the Prior Partnership Agreement), and the General Partner elected to acquire all of such tendered Common Units in exchange for the REIT Shares Amount (as defined in the Prior Partnership Agreement) (the “Exchange”);
WHEREAS, simultaneously with the Exchange, the General Partner transferred 12,354,963 Common Units to SRG Limited Partner, LLC, a Delaware limited liability company (“SRG Limited Partner”), and SRG Limited Partner was admitted as a limited partner of the Partnership. SRG Limited Partner is a wholly owned subsidiary of the General Partner and is disregarded as a separate entity from the General Partner for U.S. federal income tax purposes;
WHEREAS, the Partners of the Partnership are Seritage Growth Properties, as the General Partner and a limited partner, and SRG Limited Partner, as a limited partner; and
WHEREAS, Seritage Growth Properties and SRG Limited Partner believe it is desirable and in the best interest of the Partnership to amend and restate the Prior Partnership Agreement as set forth herein.
NOW, THEREFORE, the parties hereto agree as follows:
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GENERAL PROVISIONS
The Partners hereby agree to continue the limited partnership (the “Partnership”) pursuant to and in accordance with the Delaware Act. The term of the Partnership commenced on April 22, 2015 and shall continue until dissolution of the Partnership in accordance with the provisions of Article V.
The name of the Partnership is Seritage Growth Properties, L.P.
The registered agent of the Partnership for service of process in the State of Delaware and the registered office of the Partnership in the State of Delaware is at The Corporation Trust Company, Corporation Trust Center, 1209 Orange St., Wilmington, New Castle County, Delaware 19801. The principal place of business of the Partnership shall be at 500 Fifth Avenue, Suite 1530, New York, New York 10110, or such other place as the General Partner may determine.
The fiscal year of the Partnership (the “Fiscal Year”) for accounting and tax purposes shall be the calendar year. The General Partner is authorized to take such action as it may deem necessary or appropriate to adopt a Fiscal Year ending on any other date. The General Partner is also authorized to make all elections for tax or other purposes as it may deem necessary or appropriate in such connection, including the establishment and implementation of transition periods.
The general partner of the Partnership is Seritage Growth Properties.
The limited partners of the Partnership (the “Limited Partners”) are Seritage Growth Properties and SRG Limited Partner, LLC.
Except as provided herein or by the Delaware Act, the General Partner shall have the liabilities of a partner in a partnership without limited partners. The Limited Partners shall have no liability under this Agreement except as provided herein or by the Delaware Act.
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The purpose of the Partnership is to engage in any lawful act or activity for which limited partnerships may be organized under the Delaware Act.
Persons dealing with the Partnership are entitled to rely conclusively upon the power and authority of the General Partner as herein set forth.
MANAGEMENT AND OPERATIONS OF THE PARTNERSHIP
The management of the Partnership shall be vested exclusively in the General Partner. The Limited Partners shall have no part in the management or control of the Partnership and shall have no authority or right to act on behalf of the Partnership in connection with any matter.
The General Partner shall have the power on behalf and in the name of the Partnership to carry out any and all of the objects and purposes of the Partnership set forth in Section 1.8 and to perform all acts which it may deem necessary or advisable.
Each of the Partners agrees that all determinations, decisions and actions made or taken by the General Partner shall be conclusive and absolutely binding upon the Partnership, the Partners and their respective successors, assigns and personal representatives.
The Partners intend that the Partnership will be treated as disregarded as a separate entity from Seritage Growth Properties for U.S. federal, state and local tax purposes, and agree that the Partners shall not take any action inconsistent with such treatment without the prior written consent of the General Partner.
CONTRIBUTIONS
The General Partner has made capital contributions to the Partnership in such amounts as are reflected on the books and records of the Partnership. The General Partner may, but is not required to, lend any funds or make additional capital contributions to the Partnership.
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The Limited Partners have made capital contributions to the Partnership in such amount as is reflected on the books and records of the Partnership. The Limited Partners are not required to lend any funds or to make additional capital contributions to the Partnership.
DISTRIBUTIONS
The Partnership shall make all distributions to the Partners at the times and in the amounts that the General Partner determines. Distributions will be made to the Partners pro rata (based upon value) in accordance with the Partners’ relative equity interests (which are set out in Exhibit A).
DURATION
The Partnership shall continue until the General Partner’s determination to dissolve the Partnership and to wind up the Partnership’s affairs.
TRANSFERABILITY OF PARTNERSHIP INTERESTS
No Partner may sell, exchange, transfer, assign, make a gift of, donate, bequeath, devise, pledge, hypothecate or otherwise dispose of all or any part of its interest in the Partnership without the consent of the General Partner.
Except as otherwise provided in this Agreement, unless the General Partner determines otherwise, no distribution shall be paid to a Partner upon its withdrawal, whether in the connection with the voluntary assignment of its entire partnership interest or otherwise.
ADMISSION OF LIMITED PARTNERS
The General Partner may cause the Partnership to admit additional limited partners (“Additional Limited Partners”) at any time.
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INDEMNIFICATION AND EXCULPATION
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MISCELLANEOUS
This Agreement may be changed or amended by the General Partner without the consent of the Limited Partners.
This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware. In particular, it shall be construed to the maximum extent possible to comply with all of the terms and conditions of the Delaware Act. If, nevertheless, it shall be determined by a court of competent jurisdiction that any provision or wording of this Agreement shall be invalid or unenforceable under the Delaware Act or other applicable law, such invalidity or unenforceability shall not invalidate the entire agreement. In that case, this Agreement shall be construed to the extent permitted by applicable law so as to limit any term or provision so as to make it enforceable or valid within the requirements of any applicable law, and, in the event such term or provision cannot be so limited, this Agreement shall be construed to omit such invalid or unenforceable provisions.
The Limited Partners do hereby constitute and appoint the General Partner as their true and lawful representatives and attorneys-in-fact, in their name, place and stead to make, execute, sign and file any such instruments, documents and certificates which may from time to time be required by the laws of the United States of America, the State of Delaware or any other state in which the Partnership shall determine to do business or any political subdivision or agency thereof, to effectuate, implement and continue the valid and subsisting existence or qualification to do business of the Partnership or in connection with any tax returns, filings or related matters or in relation to any admissions of any Additional Limited Partners in accordance with the terms of this Agreement. The power of attorney granted hereby is coupled with an interest and shall continue in full force and effect notwithstanding the subsequent death, bankruptcy, incompetence or dissolution of any Limited Partner.
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In accordance with section 17-201 of the Delaware Act, this Agreement shall be effective as of July 6, 2022.
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The undersigned have executed and delivered this Agreement on the date first above written.
SERITAGE GROWTH PROPERTIES
as General Partner
By:
Name:
Title: Authorized Person
SERITAGE GROWTH PROPERTIES
as Limited Partner
By:
Name:
Title: Authorized Person
SRG Limited partner, llc
as Limited Partner
By:
Name:
Title: Authorized Person
[Signature Page to Second Amended and Restated Agreement of Limited Partnership of Seritage Growth Properties L.P.]
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EXHIBIT A
PARTNERS, CONTRIBUTIONS AND PARTNERSHIP INTERESTS
As of January 4, 2023
Common Units
Name and Address of Partner |
| Economic Units | Economic Percentage Interest |
|
|
|
|
GENERAL PARTNER |
|
| |
|
|
| |
Seritage Growth Properties | 31,856,054 | 56.85294% | |
|
|
| |
LIMITED PARTNERS |
|
| |
SRG Limited Partner, LLC | 12,354,963 | 22.04968% | |
Seritage Growth Properties | 11,821,364 | 21.09738% |
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