EXHIBIT 10.3
AMENDED AND RESTATED
LIMITED PARTNERSHIP AGREEMENT
OF
LIBERTY/COMMERZ 1701 JFK BOULEVARD, L.P.
A DELAWARE LIMITED PARTNERSHIP
Dated as of April 11, 2006
TABLE OF CONTENTS
PAGE
SECTION I GENERAL PROVISIONS................................................................... 2
1.01. Continuation of the Partnership.......................................................... 2
1.02. Name..................................................................................... 2
1.03. Term..................................................................................... 2
1.04. Business Purpose and Powers.............................................................. 3
1.05. Compliance............................................................................... 9
1.06. Partners................................................................................. 9
1.07. Amendment and Restatement................................................................ 9
SECTION II CERTAIN DEFINITIONS.................................................................. 10
SECTION III CAPITAL CONTRIBUTIONS................................................................ 29
3.01. Capital Contribution..................................................................... 29
3.02. Capital Contributions and Loans of the LPT Partners...................................... 31
3.03. Additional Provisions Regarding Capital Contributions.................................... 35
3.04. Proration of Revenues and Expenses of the Partnership.................................... 37
SECTION IV ALLOCATION OF INCOME AND LOSSES...................................................... 37
4.01. Allocation of Profits and Losses......................................................... 37
4.02. Loss Limitation.......................................................................... 38
4.03. Special Allocations...................................................................... 38
SECTION V DISTRIBUTIONS........................................................................ 41
5.01. Operations............................................................................... 41
5.02. Capital Transactions..................................................................... 42
5.03. Pre-Completion Return.................................................................... 42
5.04. Distributions in Kind.................................................................... 42
5.05. Limitations on Distributions............................................................. 43
5.06. REIT Distributions....................................................................... 43
5.07. Taxes Withheld........................................................................... 43
SECTION VI MANAGEMENT DECISIONS AND RELATED MATTERS............................................. 44
6.01. Management............................................................................... 44
6.02. Liability and Indemnification of Partners................................................ 50
6.03. Certain Conflicts of Interest............................................................ 51
6.04. Compensation; Reimbursement for Expenses; Other Expenses................................. 52
-i-
TABLE OF CONTENTS
(continued)
PAGE
6.05. Partnership Status....................................................................... 53
6.06. Removal of General Partner............................................................... 53
6.07. Execution and Delivery of Documents on Behalf of the Partnership......................... 54
SECTION VII APPROVED BUDGET AND LEASING GUIDELINES............................................... 55
7.01. Approved Budget and Leasing Guidelines................................................... 55
SECTION VIII BOOKS, RECORDS AND BANK ACCOUNTS..................................................... 57
8.01. Fiscal Year.............................................................................. 57
8.02. Maintenance of Accounts; Reports; Audited Financial Statements........................... 58
8.03. Preparation and Review of Tax Returns.................................................... 59
8.04. Bank Accounts; Temporary Investments..................................................... 60
8.05. Tax Elections; Tax Audits; Withholding................................................... 61
SECTION IX ASSIGNABILITY OF PARTNERSHIP INTERESTS............................................... 61
9.01. Restrictions on Transfer or Assignment of Partnership Interests.......................... 61
9.02. Events of Withdrawal of a Partner........................................................ 69
9.03. Put Option............................................................................... 69
SECTION X DISSOLUTION AND TERMINATION.......................................................... 70
10.01. Events of Dissolution.................................................................... 70
10.02. Winding-Up, Liquidation and Distribution of Assets....................................... 70
10.03. Certificate of Cancellation.............................................................. 72
10.04. Effect of Filing of Certificate of Cancellation.......................................... 72
10.05. Return of Contribution Nonrecourse to Other Partners..................................... 72
SECTION XI SPECIAL SALE RIGHTS.................................................................. 72
11.01. Special Sale Right....................................................................... 72
11.02. General Provisions Applicable to Sale of Partnership Interests Under Section XI.......... 74
11.03. Restrictions on Exercise of Rights....................................................... 75
SECTION XII MISCELLANEOUS........................................................................ 75
12.01. Notices.................................................................................. 75
12.02. Successors and Assigns................................................................... 77
12.03. Governing Law; Choice of Forum........................................................... 77
12.04. No Waiver................................................................................ 78
-ii-
TABLE OF CONTENTS
(continued)
PAGE
12.05. Entire Agreement......................................................................... 78
12.06. Captions................................................................................. 78
12.07. Counterparts............................................................................. 78
12.08. Waivers.................................................................................. 78
12.09. Interpretation........................................................................... 79
12.10. Disclosure............................................................................... 79
12.11. Further Assurances....................................................................... 80
12.12. Right to Specific Performance............................................................ 80
12.13. Relationship of Parties.................................................................. 80
12.14. No Third Party Rights.................................................................... 80
12.15. Usury.................................................................................... 80
12.16. Attorneys' Fees; Waiver of Jury Trial.................................................... 80
12.17. Incorporation of Schedules............................................................... 81
12.18. Partner Estoppel Certificates............................................................ 81
12.19. Construction............................................................................. 81
12.20. Representations and Warranties........................................................... 81
12.21. Broker................................................................................... 82
12.22. Legal Representation..................................................................... 82
SECTION XIII CONSTRUCTION PROVISIONS.............................................................. 83
13.01. Construction Reporting................................................................... 83
13.02. Construction Approvals................................................................... 83
13.03. Notices under Comcast Lease or Construction Contracts.................................... 84
Schedule A Description of Property.............................................................. 86
Schedule B Partners............................................................................. 87
Schedule C List of Possible Arbiters............................................................ 88
Schedule D Loan Commitment Letter............................................................... 89
Schedule E Initial Approved Construction Budget................................................. 90
Schedule F Development Timeline................................................................. 91
Schedule G Initial Approved Leasing Guidelines.................................................. 92
Schedule H IRR Calculation...................................................................... 93
Schedule J Management and Leasing Agreement..................................................... 96
-iii-
TABLE OF CONTENTS
(continued)
PAGE
Schedule K Standard Lease Form.................................................................. 97
Schedule L Estimate of Partnership Closing Costs................................................ 98
Schedule M List of Approved Auditors............................................................ 99
Schedule N Calculation of Investor B Limited Partner Initial Capital Contribution............... 100
-iv-
AMENDED AND RESTATED
LIMITED PARTNERSHIP AGREEMENT
OF
LIBERTY/COMMERZ 1701 JFK BOULEVARD, L.P.
THIS AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT (this
"Agreement"), dated as of April 11, 2006, by and among LIBERTY PROPERTY
PHILADELPHIA CORPORATION IV EAST, a Pennsylvania corporation (the "General
Partner"), LIBERTY PROPERTY LIMITED PARTNERSHIP, a Pennsylvania limited
partnership (the "Investor A Limited Partner"), and 1701 JFK BOULEVARD
PHILADELPHIA, L.P., a Delaware limited partnership (the "Investor B Limited
Partner").
BACKGROUND
WHEREAS, pursuant to a Certificate of Limited Partnership filed with the
Secretary of State of the State of Delaware on December 12, 2000, as amended by
Amendment to Certificate of Limited Partnership dated October 23, 2004 (as
amended, the "Certificate") and an Agreement of Limited Partnership dated as of
December 13, 2000, as amended by that certain First Amendment to Agreement of
Limited Partnership of Liberty Property Philadelphia Limited Partnership IV East
dated as of October 8, 2000, and as further amended by that certain Second
Amendment to Agreement of Limited Partnership of Liberty Property Philadelphia
Limited Partnership IV East dated October 12, 2001 (as amended, the "Original
Partnership Agreement"), the General Partner and the Investor A Limited Partner
formed Liberty Property Philadelphia Limited Partnership IV East, as a Delaware
limited partnership (the "Partnership") for the purposes of, among other things,
owning, holding, operating, leasing, selling, financing, and developing a
58-story Class A "trophy" office building together with a public plaza and
ancillary retail, parking and other improvements, commonly known as "Comcast
Center" upon that real property generally located at 17th and John F. Kennedy
Boulevard, Philadelphia, Pennsylvania and more particularly described in
SCHEDULE A annexed hereto and made a part hereof (such real property, together
with the building and improvements thereon and the fixtures and personal
property owned by the Partnership and appurtenant thereto being referred to
hereinafter, collectively, as the "Property");
WHEREAS, the Investor B Limited Partner, the Investor A Limited Partner,
the General Partner, Liberty Property Philadelphia Limited Partnership IV West,
and the Partnership are parties to a certain Master Agreement, dated as of the
date hereof (as such agreement may be modified, amended or supplemented from
time to time, the "Master Agreement");
WHEREAS, (a) the Investor A Limited Partner and the General Partner desire
to admit the Investor B Limited Partner to the Partnership, (b) the Investor B
Limited Partner desires to be admitted to the Partnership as a new limited
partner, and (c) the General Partner, the
Investor A Limited Partner and the Investor B Limited Partner desire to continue
the Partnership as a Delaware limited partnership, all upon and subject to the
terms and conditions set forth in this Agreement;
WHEREAS, in connection with the admission of the Investor B Limited
Partner to the Partnership, the parties desire to change the name of the
Partnership to Liberty/Commerz 1701 JFK Boulevard, L.P. and to amend and restate
the Original Partnership Agreement in accordance with and subject to the terms
of this Agreement and in doing so to set forth certain agreements and
understandings among themselves regarding the Partnership, its business and its
assets;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged and intending to be legally bound
hereby, the parties hereto set forth their agreement as follows:
SECTION I
GENERAL PROVISIONS
1.01. Continuation of the Partnership. The Partnership is hereby continued
as a limited partnership under and pursuant to the Revised Uniform Limited
Partnership Act of the State of Delaware, as amended from time to time (the
"Act"), and the Certificate. This Agreement shall constitute the limited
partnership agreement among the Partners. Subject to Section 6.01(b)(vi) hereof,
the General Partner shall have the authority to execute, deliver and file any
amendments to, or restatements of, the Certificate, any fictitious name
certificates and/or any other certificates, documents and instruments, in each
case with the Secretary of State of the State of Delaware or otherwise as
appropriate, and shall make such other filings as may be required under the Act
or the laws of any other jurisdiction in which the Partnership shall carry on
its business. The Partners agree to execute such documents and to take such
other action as may from time to time be deemed necessary or appropriate by the
General Partner (a) under the laws of the State of Delaware with respect to the
formation, operation and continued good standing of the Partnership as a limited
partnership, and (b) under the laws of the Commonwealth of Pennsylvania or the
laws of any other jurisdiction to qualify to do business in such state or to
otherwise carry on the business of the Partnership.
1.02. Name. The business of the Partnership shall be conducted under the
name of "Liberty/Commerz 1701 JFK Boulevard, L.P." or such other name as may be
designated by the General Partner with the prior written approval of the
Investor B Limited Partner.
1.03. Term. The term ("Term") of the Partnership commenced as of the date
of filing of the Certificate, and shall continue until the earlier of (a)
December 31, 2050 or (b) the dissolution, liquidation and termination of the
Partnership pursuant to the provisions of Section X hereof.
-2-
1.04. Business Purpose and Powers.
(a) Purpose. The purpose of the Partnership is (i) to acquire, own, hold,
manage, develop, operate, improve, build upon, renovate, refurbish,
rehabilitate, alter, rent, lease, license, repair, finance or refinance,
mortgage, encumber, sell, exchange and otherwise deal with and dispose of the
Property, (ii) to enter into the Mortgage Loan Documents and obtain the Mortgage
Loan (as such terms are hereinafter respectively defined), and (iii) to engage
in any and all activities necessary, appropriate, proper, advisable, incidental
or convenient to the purposes described in clauses (i) and (ii) above.
(b) Powers. The Partnership shall have the power and authority to take any
and all actions necessary, appropriate, proper, advisable, incidental or
convenient to, or for the furtherance of, and solely for the purpose set forth
in Section 1.04(a) hereof, including, without limitation, the power:
(i) to conduct its business, carry on its operations and have and
exercise the powers granted to a limited partnership pursuant to the Act in any
state, territory, district or possession of the United States, or in any foreign
country that may be necessary, appropriate, proper, advisable, incidental or
convenient to the accomplishment of the purpose of the Partnership;
(ii) to acquire by purchase, lease, contribution of property or
otherwise, any real, personal or mixed property related to the purpose of the
Partnership set forth in Section 1.04(a) above with the funds of the
Partnership, including, without limitation, the Property;
(iii) to execute and deliver the Management and Leasing Agreement
and the Mortgage Loan Documents;
(iv) to enforce its rights, and perform its obligations, under (A)
the Leases (as hereinafter defined), (B) the Contracts (as hereinafter defined),
(C) the NOI Support Agreement (as hereinafter defined), (D) the Completion
Guaranty (as hereinafter defined), and (E) the Management and Leasing Agreement
(as hereinafter defined);
(v) to borrow money pursuant to the Mortgage Loan or otherwise to
the extent necessary, appropriate, proper, advisable, incidental or convenient
to the accomplishment of the purpose of the Partnership; and
(vi) subject to the other terms of this Agreement, to conduct all
activities determined by the General Partner to be necessary, appropriate,
proper, advisable, incidental or convenient to the accomplishment of the purpose
of the Partnership as set forth in Section 1.04(a) hereof.
-3-
(c) Limitation on Certain Partnership Actions. Notwithstanding anything
appearing in this Agreement to the contrary, so long as the Initial Mortgage
Loan (as hereinafter defined) shall remain outstanding, the Partnership:
(i) shall be organized solely for purpose of owning and/or leasing,
as applicable, developing, leasing, managing and operating the Property, or in
the case of any SPC Party, owning the general partnership interest in the
Partnership;
(ii) shall not own any assets other than the Property (including
incidental personal property necessary for the operation thereof and proceeds
therefrom) or, in the case of any SPC Party, its general partnership interest in
the Partnership;
(iii) shall not engage in any business directly or indirectly, other
than the ownership, development, leasing, management and operation of the
Property;
(iv) with the exception of the NOI Support Agreement, the Overlay
Agreement (as defined in the Loan Commitment, the Completion Guaranty, the
Management Agreement and the Cooperation Agreement, shall not enter into any
contract or agreement with any partner, member, shareholder, trustee,
beneficiary, principal, joint venturer or Affiliate of the Partnership or any
SPC Party except in the ordinary course of its business pursuant to written
agreements upon terms and conditions that are intrinsically fair and
substantially similar to those that would be available on an arms-length basis
with third parties other than such Affiliate;
(v) shall not incur any debt, secured or unsecured, direct or
contingent (including guaranteeing any obligation), other than (i) the Initial
Mortgage Loan, (ii) trade payables incurred in the ordinary course of business
with trade creditors in connection with owning, developing, leasing, operating
and maintaining the Property, in such amounts as are normal and reasonable under
the circumstances, provided such debt is not evidenced by a promissory note or
other security instrument and is not at any time in an aggregate amount in
excess of [The confidential material contained herein has been omitted and has
been separately filed with the Commission.], and further provided that all such
trade debts are paid within [The confidential material contained herein has been
omitted and has been separately filed with the Commission.] days after the same
are incurred and (iii) equipment financing leases incurred in the ordinary
course of business in connection with the financing of equipment used on the
Mortgaged Property, the payments upon which are made currently and in any event
prior to delinquency, provided (A) that the aggregate capitalized amount of all
such permitted financing leases shall not at any time be in excess of [The
confidential material contained herein has been omitted and has been separately
filed with the Commission.] or require payments aggregating in excess of [The
confidential material contained herein has been omitted and has been separately
filed with the Commission.] in any one calendar year, and (B) the aggregate
outstanding amount of (1) all trade payables described in clause (ii) above,
plus (2) the aggregate capitalized amount of all permitted financing leases
described in clause (iii) above, shall not at any time be in excess of [The
confidential material contained herein has been omitted and has been separately
filed with the Commission.] of the initial principal amount of the Initial
Mortgage Loan;
-4-
(vi) shall not make any loan or advances to any Person (including
any of its Affiliates), or pledge its assets for the benefit of any other
Person, or seek or obtain credit or incur any obligation to any third party
based upon the assets of any other Person, or induce any third party to rely on
the creditworthiness of any other Person;
(vii) reasonably expects to remain solvent, and has maintained, and
reasonably expects to maintain adequate capital for the normal obligations
reasonably foreseeable in a business of its size and character and in light of
its contemplated business operations;
(viii) shall not acquire obligations or securities of any Person;
(ix) shall not fail to correct any known misunderstanding or
misrepresentation regarding its separate identity;
(x) shall do all things necessary to preserve its existence;
(xi) shall continuously maintain its existence and good standing and
be qualified to do business in all states necessary to carry on its business,
including the state in which the Property is located;
(xii) shall conduct and operate its business solely in its own name,
with all oral and written communications from the Partnership or SPC Party, as
applicable, including, without limitations, correspondence, invoices, purchase
orders, billing statements, applications and business forms, made solely in the
name of the Partnership or SPC Party, as applicable;
(xiii) shall accurately maintain books, records, bank accounts,
accounting records, financial statements and other entity documents separate
from those of its partners, members, shareholders, trustees, beneficiaries,
principals, Affiliates, and any other Person, with such accounting records and
financial statements having been prepared and kept in accordance with reasonable
accounting practices applied on a consistent basis, and such financial
statements of the Partnership (and any SPC Party, if applicable) shall be
prepared in a manner that indicates (through appropriate footnotes if necessary)
the existence of the Partnership (and any SPC Party, if applicable) and its
assets and liabilities separate and apart from any other Person; moreover, the
Partnership (and any SPC Party, if applicable) shall indicate in its financial
statements that the assets of the Partnership (and any SPC Party, if applicable)
are not available to satisfy the claims of creditors of any Affiliate of the
Partnership (or any SPC Party, if applicable) and that the assets of any
Affiliate of the Partnership (or any SPC Party, if applicable) are not available
to satisfy the claims of creditors of the Partnership (or any SPC Party, if
applicable) and, except with appropriate designation as set forth above, the
Partnership (and any SPC Party, if applicable) shall not authorize its assets or
liabilities to be listed on the financial statement of any other Person;
-5-
(xiv) shall at all times hold itself out to the public as, a legal
entity separate and distinct from any other Person (including any of its
partners, members, shareholders, trustees, beneficiaries, principals and
Affiliates, and any Affiliates of any of the same), and not as a department or
division of any Person.
(xv) shall file such tax returns with respect to itself as may be
required under applicable law and has prepared and will prepare separate tax
returns and financial statements, or if part of a consolidated group, is shown
as a separate member of such group;
(xvi) except as set forth in the Completion Guaranty, shall pay its
own liabilities, indebtedness, and obligations of any kind, as the same shall
become due, from its own separate assets, rather than from those other Persons,
and the Partnership shall not consent to any Person operating the Property to
incur expenses as agent or on behalf of the Partnership, unless such Person
agrees, prior to incurring such expense, to clearly indicate that such expenses
are the sole responsibility of, and any payment will come from, the Partnership;
(xvii) shall not enter into any transaction of merger or
consolidation, or acquire by purchase or otherwise all or substantially all of
the business or assets of, or any stock or beneficial ownership of, any Person;
(xviii) shall not commingle or permit to be commingled its funds or
other assets with those of any other Person; and has held and will hold title to
all of its real and personal property in its own name and not in the name of any
other Person;
(xix) shall maintain its assets in such a manner that it is not
costly or difficult to segregate, ascertain or identify its individual assets
from those of any other Person;
(xx) shall not hold itself out to be responsible for the debts or
obligations of any other Person and, except for the Completion Guaranty and the
documents evidencing the Initial Mortgage Loan to which other Persons are party,
shall not consent to any other Person holding itself out as being responsible
for the debts or obligations of the Partnership (with the exception of the
obligations of LPLP under the Completion Guaranty, the Guaranty Agreement dated
January 2, 2005 in favor of Comcast Corporation, the Guaranty Agreement dated
August 8, 2001 in favor of SEPTA, the Guaranty of Comcast Lease Construction
Obligations (as defined in the Commitment Letter) and that certain Guaranty
dated March 1, 2006 in favor of PIDC or the debt or obligations of the SPC
Party;
(xxi) shall not assume, guarantee or otherwise become liable on or
in connection with any obligation of any other Person and except for the
documents evidencing the Initial Mortgage Loan to which other Persons are party,
shall not consent to any other Person guaranteeing, assuming or otherwise
becoming liable for any obligation of the Partnership (with the exception of the
obligations of LPLP under the Completion Guaranty, the Guaranty Agreement dated
January 2, 2005 in favor of Comcast Corporation, the Guaranty Agreement dated
August 8, 2001 in favor of SEPTA, the Guaranty of Comcast Lease Construction
-6-
Obligations (as defined in the Commitment Letter) and that certain Guaranty
dated March 1, 2006, in favor of PIDC);
(xxii) except for funds deposited into any applicable collection
account or reserve account in accordance with the documents evidencing the
Initial Mortgage Loan, shall not hold title to its assets other than in its
name.
(xxiii) [reserved]
(xxiv) except to the extent set forth in the Completion Guaranty,
shall and will pay its own liabilities and expenses, out of its own funds and
shall not consent to any other Person paying the Partnership's (or any SPC
Party's, if applicable) obligations except as provided for in the Completion
Guaranty to the extent that timely reimbursement is made for the same;
(xxv) shall hold regular meetings, as appropriate to conduct its
business and has observed at all times and will observe all limited liability
company (if a limited liability company) or a limited partnership (if a limited
partnership) or corporate (if a corporation) formalities and record keeping;
(xxvi) shall allocate to the Partnership (and any SPC Party, if
applicable) reasonably and on the basis of fair market value determined on an
arms-length basis all general overhead and administrative expenses, including
all costs associated with common employees, if any, and shared office space, and
any such allocation shall be specifically and reasonably documented and
substantiated, any such allocation of expenses to the Partnership (or any SPC
Party, if applicable) shall be paid solely by the Partnership (or such SPC
Party, if applicable) from the Partnership's (or such SPC Party's, if
applicable) own funds, and the Partnership (and any SPC Party, if applicable
shall at all times use separate stationary, letterhead, invoices and checks;
(xxvii) shall not identify its members or partners, Independent
Directors (as defined below) or any other member or partner of any Affiliate of
the Partnership, or any other Person, as a division or part of it;
(xxviii) shall pay the salaries of its own employees and shall
maintain a sufficient number of employees in light of its contemplated business
operations (it being understood that the Partnership does not currently have or
need, or contemplate having or needing, any employees because the Property is
managed by LPLP pursuant to the Management and Leasing Agreement;
(xxix) shall maintain, its own cash, cash positions and bank
accounts separate from any other Person;
(xxx) shall not (i) liquidate or dissolve, in whole or in part; (ii)
except to the extent permitted pursuant to the Mortgage Loan Documents,
consolidate, merge or enter
-7-
into any form of consolidation with or into any other Person, nor convey,
transfer or lease its assets substantially as an entirety to any Person nor
permit any Person to consolidate, merge or enter into any form of consolidation
with or into itself, not convey, transfer or least its assets substantially as
an entirety to an Person; (iii) engage in any business other than the ownership
and operation of the Property; or (iv) amend any provisions of its
organizational documents containing provisions similar to those contained in
this Section 1.04(c);
(xxxi) shall have each general partner (each, an "SPC Party") be a
corporation whose sole asset is its interest in the Partnership and each such
SPC Party will at all times comply, and will cause the Partnership to comply,
with each of the representations, warranties, and covenants contained in this
Section 1.04 as if such covenant was made directly by such SPC Party. The
articles of incorporation and the bylaws of such SPC Party (the "SPC Party
Organizational Documents") shall incorporate the provision of this Section 1.04
and require that the directors of such SPC Party consider the interests of the
creditors of such SPC Party in connection with all corporate decisions and
actions;
(xxxii) shall, no later than the funding of the Initial Mortgage
Loan, cause there to be at least two (2) duly appointed members of the board of
directors (each an "Independent Director," and together, the "Independent
Directors") of the SPC Party who are reasonably satisfactory to the Initial
Mortgage Lender each of whom shall be an individual, natural person and who
shall not have been at the time of such individual's appointment, and may not
have been at any time during the preceding five years, a shareholder of, or an
officer, director, partner, paid consultant or employee of, the Partnership or
any of its shareholders, subsidiaries or affiliates, a customer of, or supplier
to, the Partnership or any of its shareholders, subsidiaries or affiliates, or a
person or other entity controlling or under the common control with any such
shareholder, partners, supplier or customer, or a member of the immediate family
of any such shareholder, officer, director, partner, employee, supplier or
customer of the Partnership. As used herein, the term "control" means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of a person or entity or to conduct the
day-to-day business operations of such person or entity, whether through
ownership of voting securities, by contract or otherwise;
(xxxiii) shall require from and after the election of the
Independent Directors that the affirmative vote and written consent of the SPC
Party, acting with the affirmative vote of both of the Independent Directors
(which shall be required in order for the SPC Party to take such action under
the terms of this Agreement and the SPC Party's organizational documents) will
be required in order for the Partnership to institute proceedings to have the
Partnership adjudicated bankrupt or insolvent, or consent to the institution of
bankruptcy or insolvency proceedings against the Partnership or file a petition
seeking or consent to, reorganization or relief with respect to the Partnership
under any applicable federal or state law relating to bankruptcy, or consent to
the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or
other similar official) of the Partnership or a substantial part of the
Partnership's property, or make any assignment for the benefit of creditors of
the Partnership, or
-8-
admit in writing the Partnership's inability to pay its debts generally as they
become due, or any similar action, or take action in furtherance of any of the
foregoing actions;
(xxxiv) shall comply with the separateness provisions of this
Agreement, and with the laws of the state of its formation relating to limited
partnerships, and each SPC Party, if applicable, shall comply with the
separateness provisions of the SPC Party's organizational documents, and with
the laws of the state of its formation relating to corporations; and
(xxxv) shall cause this Agreement and, if applicable, the SPC
Party's organizational documents to at all times provide that the Partnership
(and the SPC Party, if applicable) shall not cause, permit, or empower any
Person to consolidate or merge the Partnership or the SPC Party into any other
entity.
1.05. Compliance.
(a) Certificate of Limited Partnership. The Certificate shall be amended
at such times, and within such time periods, as may be required by the Act.
(b) Principal Place of Business. The principal place of business of the
Partnership shall be located at c/o Liberty Property Trust, Great Valley
Corporate Center, 500 Chesterfield Parkway, Malvern, PA 19355, or such other
location within the Commonwealth of Pennsylvania as may hereafter be determined
by the General Partner. The General Partner shall notify each other Partner in
writing of any change in the principal place of business of the Partnership.
(c) Office and Agent. The Partnership shall at all times maintain a
registered agent and office in the State of Delaware. The address of the
Partnership's registered office in the State of Delaware and the name and
address of the registered agent for service of process in the State of Delaware
are Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington,
New Castle County, Delaware 19808. The General Partner may change the
Partnership's registered office and/or registered agent from time to time as
permitted under the Act; provided, however, that the General Partner shall
notify each of the other Partners in writing of any such change.
1.06. Partners.
(a) The General Partner shall be the sole general partner of the
Partnership.
(b) Except as expressly provided in this Agreement, no other Person (as
hereinafter defined) shall be admitted as an additional or substitute general
partner of the Partnership without the prior unanimous written consent of all of
the Partners.
(c) The Investor B Limited Partner is hereby admitted to the Partnership
as a new limited partner (or, to the extent such admission of the Investor B
Limited Partner occurred
-9-
previously, all of the Partners hereby acknowledge such admission). The Investor
A Limited Partner and the Investor B Limited Partner shall be limited partners
of the Partnership.
(d) Except as expressly provided in this Agreement, no other Person shall
be admitted as an additional or substitute limited partner of the Partnership
without the unanimous prior written consent of all of the Partners.
1.07. Amendment and Restatement. This Agreement amends and restates the
Original Partnership Agreement in its entirety. Notwithstanding such amendment
and restatement, no Partner shall be released from any liability arising under
the Original Partnership Agreement.
SECTION II
CERTAIN DEFINITIONS
For purposes of this Agreement, the following terms shall have the
following meanings:
"AAA" shall have the meaning set forth in Section 7.01(d)(ii) hereof.
"Act" shall have the meaning set forth in Section 1.01 hereof.
"Action Requiring Approval" shall have the meaning specified in Sections
6.01(b) and 13.02 hereof.
"Additional Capital Contribution" shall have the meaning set forth in
Sections 3.03(b)(ii), 3.03(b)(iv) and 3.03(b)(vi) hereof.
"Additional Capital Request" shall have the meaning set forth in Section
3.01(b)(iii) hereof.
"Adjusted Capital Account" means, with respect to each Partner, the
balance in such Partner's Capital Account as of the end of the relevant fiscal
year, after giving effect to the following adjustments:
(i) credit to such Capital Account any amounts which such Partner is
obligated to restore pursuant to any provision of this Agreement or is deemed to
be obligated to restore pursuant to the penultimate sentence of each of
Regulations Sections 1.704-2(g)(1) and 1.704-2(i)(5); and
(ii) debit to such Capital Account the items described in Sections
1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5) and 1.704-1(b)(2)(ii)(d)(6) of
the Regulations.
-10-
"Adjusted Capital Account Deficit" shall mean, with respect to any
Partner, the deficit balance, if any, in such Partner's Capital Account as of
the end of the relevant tax year, after giving effect to the following
adjustments:
(i) credit to such Capital Account any amounts which such Partner is
obligated to restore pursuant to any provision of this Agreement or is deemed to
be obligated to restore pursuant to the penultimate sentences of Sections
1.704-2(g)(1) and 1.704-2(i)(5) of the Regulations; and
(ii) debit to such Capital Account the items described in Sections
1.704-1(b)(2)(ii)(d)(4), (5) and (6) of the Regulations.
The foregoing definition of "Adjusted Capital Account Deficit" is intended
to comply with the provisions of Section 1.704-1(b)(2)(ii)(d) of the Regulations
and shall be interpreted consistently therewith.
"Affiliate" shall mean, with reference to a Person, any other Person that,
directly or indirectly through one or more intermediaries, Controls, is
Controlled by or is under common Control with the first Person.
"Agreement" shall mean this Amended and Restated Limited Partnership
Agreement, as defined in the introductory paragraph hereof, and as the same may
hereafter be amended, supplemented or modified from time to time.
"Amended LPLP Loan" shall have the meaning set forth in Section 3.02(g).
"Appraisal Deadline" shall have the meaning set forth in Schedule I
attached hereto.
"Appraisal Standards" shall have the meaning set forth in Schedule I
attached hereto.
"Approved Budget" shall mean for each fiscal year of the Partnership after
the Final Occupancy Date for the Initial Office Premises, the budget setting
forth estimated receipts and expenditures (capital, operating and other) for
such fiscal year, as proposed by the General Partner and approved by the
Investor B Limited Partner pursuant to Section 7.01
"Approved Construction Budget" shall mean, the construction budget, as
amended from time to time by the General Partner, subject to Section 13.02,
setting forth the estimated costs of construction of the Building, as proposed
by the General Partner and approved by the Investor B Limited Partner in
accordance with the terms and conditions of this Agreement.
-11-
"Approved Development Timeline" shall mean the Development Timeline
attached hereto as Schedule F, as the same may be amended by the General Partner
with the approval of the Investor B Limited Partner.
"Arbiter" shall have the meaning set forth in Section 7.01(d)(i) hereof.
"Associated Partner(s)" shall have the meaning specified in Section
11.01(a) hereof.
"Breakage Costs" shall mean any breakage costs due under the Rate Lock
Agreement.
"Budget Dispute" shall have the meaning set forth in Section 7.01(d)(i)
hereof.
"Building" shall mean the building(s) and other improvements now or
hereafter erected on Unit 1 of the Property.
"Capital Account" shall mean, with respect to any Partner, the capital
account maintained for such Partner in accordance with the following provisions:
(i) To each Partner's Capital Account there shall be credited the
aggregate amount of cash and the initial Gross Asset Value of any property
contributed by such Partner to the Partnership or deemed to have been
contributed by such Partner to the Partnership, such Partner's distributive
share of Profits and any items in the nature of income or gain or deemed to have
been contributed by any Partner to the Partnership which are specially allocated
pursuant to Section IV hereof, and the amount of any Partnership liabilities
assumed by such Partner or which are secured by any Partnership property
distributed to such Partner.
(ii) To each Partner's Capital Account there shall be debited the
amount of cash and the Gross Asset Value of any Partnership property distributed
to such Partner pursuant to any provision of this Agreement, such Partner's
distributive share of Losses and any items in the nature of expenses or losses
which are specially allocated pursuant to Section IV hereof, and the amount of
any liabilities of such Partner assumed by the Partnership or which are secured
by any property contributed by such Partner to the Partnership.
(iii) If any interest in the Partnership is transferred in
accordance with the terms of this Agreement, the transferee shall succeed to the
Capital Account of the transferor to the extent it relates to the transferred
interest.
(iv) In determining the amount of any liability for purposes of
determining Capital Account balances hereof, there shall be taken into account
Code Section 752(c) and any other applicable provisions of the Code and
Regulations.
The provisions of this Agreement relating to the maintenance of Capital
Accounts are intended to comply with Section 1.704-1(b) of the Regulations, and
shall be interpreted and
-12-
applied in a manner consistent with such Regulations. If the General Partner
shall determine that it is prudent to modify the manner in which the Capital
Accounts, or any debits or credits thereto, are computed in order to comply with
such Regulations, the General Partner may make such modification upon the
written approval by the Investor B Limited Partner.
"Capital Contribution" shall mean, with respect to any Partner, the
Initial Capital Contribution actually made or deemed to have been made by such
Partner pursuant to Section 3.01(a), Section 3.02, or Section 3.03(b)(i) hereof
(subject to Section 3.03(b)(ii) hereof) and any Additional Capital Contribution
actually made pursuant to Section 3.03(b)(ii), 3.03(b)(iv) or 3.03(b)(vi)
hereof.
"Capital Gain or Loss" shall have the meaning set forth in Section 4.01(a)
hereof.
"Capital Transaction Net Proceeds" shall mean the net proceeds (including
any funds released from reserves, as determined by the General Partner with the
prior written approval of the Investor B Limited Partner, to the extent such
reserves were originally derived from proceeds of Interim Capital Transactions
or Liquidation Events and such funds are available for distribution to Partners,
rather than specifically for payment to third parties) of an Interim Capital
Transaction or a Liquidation Event, after (i) payment of the debts and
liabilities of the Partnership, to the extent required to be paid or satisfied
in connection with such transaction, including, without limitation, outstanding
loans (including the Mortgage Loan and the LPLP Loan and any accrued interest
thereon), (ii) [reserved], (iii) if appropriate, the application of such
proceeds to their intended use (e.g., capital or leasehold improvements or
repairs, or repayment of any outstanding loans), (iv) the payment of any and all
costs and expenses incurred in connection with the transaction, including,
without limitation, reasonable attorneys' fees and disbursements, brokerage
fees, transfer, recording or other similar taxes, any and all reasonable and
customary actual, third-party transaction costs, and, if appropriate, the
actual, third-party costs and expenses incurred in connection with the
dissolution and liquidation of the Partnership, and (v) reserves established
from time to time, using proceeds received in connection with such transaction,
in such amounts and for such purposes as shall be contemplated by the Approved
Budget or as the General Partner may otherwise determine with the prior written
consent of the Investor B Limited Partner (which consent will not be
unreasonably withheld, delayed or conditioned).
"Cash Flow Statements" shall have the meaning set forth in Section
8.02(c)(i) hereof.
"Certificate" shall mean the Certificate of Limited Partnership of the
Partnership, as the same may be amended, supplemented or modified from time to
time.
"Citi" shall mean Citigroup Global Markets Realty Corp.
"CLI" means CommerzLeasing und Immobilien AG.
"Closing Cost Reserve" shall have the meaning set forth in Section
3.03(b)(i).
-13-
"Closing Date" shall have the meaning set forth in the Master Agreement.
"Code" shall mean the Internal Revenue Code of 1986, as amended from time
to time (or any corresponding provisions of succeeding law).
"Comcast Center Project" shall have the meaning set forth in the
Completion Guaranty.
"Comcast Lease" means the Lease between the Partnership and Comcast
Corporation dated [The confidential material contained herein has been omitted
and has been separately filed with the Commission.], with respect to space in
the Property, as amended by that certain First Amendment to Lease dated [The
confidential material contained herein has been omitted and has been separately
filed with the Commission.], that certain Second Amendment to Lease dated [The
confidential material contained herein has been omitted and has been separately
filed with the Commission.] and that certain Third Amendment to Lease dated as
of [The confidential material contained herein has been omitted and has been
separately filed with the Commission.], and that certain Fourth Amendment to
Lease dated as of [The confidential material contained herein has been omitted
and has been separately filed with the Commission.]. By execution hereof each of
the Partners approves the Comcast Lease.
[The confidential material contained herein has been omitted and has been
separately filed with the Commission.]
[The confidential material contained herein has been omitted and has been
separately filed with the Commission.]
"Commitment Letter" shall mean that certain Loan Commitment Letter dated
on or about the date of this Agreement, executed by Citi and the Partnership,
setting forth certain financing terms with respect to a first priority mortgage
loan to be made by the Initial Mortgage Lender to the Partnership in the
original principal amount of $324,000,000 (or so much as may be advanced
thereunder), a copy of which (excluding its exhibits) is attached hereto as
Schedule D.
"Commitment Termination" shall mean the Commitment Letter is terminated.
"Completion" shall have the meaning set forth in the Completion Guaranty.
"Completion Guaranty" shall mean that certain Completion and Payment
Agreement and Guaranty of even date executed by LPLP in favor of the Partnership
and the Investor B Limited Partner.
"Completion of the Comcast Center Project" shall have the meaning set
forth in the Completion Guaranty.
-14-
"Condominium Declaration" shall mean the Declaration of Condominium of
1701-1717 JFK Boulevard Condominium, dated March 1, 2006.
"Construction Contract" shall mean, collectively, (i) the Construction
Agreement dated January 2, 2005, between the Partnership and L.F. Driscoll
Company with respect to the construction of the Building, and other improvements
on the Property and (ii) the Construction Contract dated January 2, 2005,
between the Partnership and L.F. Driscoll Company relating to the construction
of the Plaza, Concourse (as defined in the Completion Guaranty) and related
improvements.
"Construction Work" shall have the meaning set forth in the Completion
Guaranty.
"Consumer Price Index" shall mean the Consumer Price Index-United
States-All Urban Consumers, as published by the Bureau of Labor Statistics of
the United States Department of Labor (Base Year = 1982-84), or, if such index
becomes unavailable, a comparable index selected by the General Partner based
upon changes in the cost of living or purchasing power of the consumer dollar
and published by any U.S. Government agency, major bank, financial institution,
university or recognized financial publication.
"Contracts" shall mean all service contracts and other operating
agreements required for the operation of the Property, as the same may hereafter
be amended, supplemented or modified from time to time in accordance with the
applicable terms, if any, of such contracts and agreements and this Agreement.
"Control" and "Controlled by" shall mean the ability, directly or
indirectly, whether through the ownership of voting securities, partnership
interests or membership interests, by contract, or otherwise (including by being
the general partner, managing member, operating member, manager, officer or
director of the Person in question), to (i) direct or cause the direction of the
management and policies of a Person, or (ii) conduct the day-to-day business
operations of a Person.
"Cooperation Agreement" shall mean the Construction Easement and
Cost-Sharing Agreement between the Partnership and Liberty Property Philadelphia
Limited Partnership IV West, L.P. dated March 29, 2006.
"Delaware Courts" shall have the meaning specified in Section 12.03(b)
hereof.
"Deficit Amount" means the difference between the net proceeds of the
Refinance Loan and the outstanding principal amount of the Amended LPLP Loan.
"Depreciation" shall mean, for each fiscal year or other period, an amount
equal to the depreciation, amortization or other cost recovery deduction
allowable with respect to an asset for such year or other period, except that if
the Gross Asset Value of an asset differs from its adjusted basis for federal
income tax purposes at the beginning of such year or other period,
-15-
Depreciation shall be an amount which bears the same ratio to such beginning
Gross Asset Value as the federal income tax depreciation, amortization or other
recovery deduction for such year or other period bears to such beginning
adjusted tax basis; provided, however, that if the adjusted tax basis of such
property is zero, Depreciation shall be determined with reference to such
beginning Gross Asset Value using any reasonable method selected by the General
Partner (subject, however, to the provisions of Section 4.03(j) hereof regarding
the Partners' selection of the "traditional" method of allocating "built-in
gain" for purposes of Section 704(c) of the Code and the Regulations promulgated
thereunder).
"Designated Section" shall have the meaning set forth in Section 5.05.
"Dispute Notice" shall have the meaning set forth in Section 7.01(d)(i)
hereof.
"Eligible Initiating Partner" shall have the meaning set forth in Section
11.01 hereof.
"Eligible Syndication" shall mean the issuance and sale of limited partner
interests in a limited partnership pursuant to an offering conducted through
customary distribution channels outside the United States.
"Emergency Capital" shall mean the amount contributed by a Partner
pursuant to Section 3.03(b)(vi) in the case of an Emergency Event.
"Emergency Event" shall mean an emergency situation that (i) poses a
threat to life, (ii) threatens to cause substantial damage to the Property
associated with the emergency situation, (iii) threatens to cause a default by
the Partnership under any Lease or Contract that would result in a payment
obligation by the Partnership or a right of termination by such other applicable
party thereto, or (iv) threatens to cause a default by the Partnership under a
Mortgage Loan that could result in a foreclosure of the applicable mortgage (not
including payment of amounts due at the maturity of a Mortgage Loan) provided
that none of the foregoing are covered by or the result of a breach by the
Investor A Limited Partner under the Completion Guaranty or NOI Support
Agreement and provided that any action pursuant to an Emergency Event shall not
relieve the General Partner or its Affiliates from liability under any provision
of this Agreement or result in indemnification of such party if not permitted
under this Agreement.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended, or any successor statute, and the regulations promulgated thereunder
from time to time.
"Event of Withdrawal" shall mean, with respect to any Partner, the death,
incapacity, dissolution, expulsion, withdrawal, insolvency or bankruptcy of such
Partner. For the purposes of this Agreement, the "bankruptcy" of a Partner shall
be deemed to occur only (i) when such Partner shall file a voluntary petition in
bankruptcy, or shall be adjudicated as bankrupt or insolvent, or shall file any
petition or answer seeking for itself any reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar relief under any
-16-
present or future statute, law or regulation, or shall file any answer admitting
(or shall fail to contest) the material allegations of a petition filed against
such entity in any such proceeding or shall seek or consent to or acquiesce in
the judicial appointment of any trustee, fiscal agent, receiver or liquidator of
such entity or of all or any substantial part of its properties or shall take
any action looking to its dissolution or liquidation; or (ii) if, within sixty
(60) days after the commencement of an action against such Partner seeking any
bankruptcy, reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief under any present or future statute, law or
regulation, such action shall not have been dismissed or all orders or
proceedings thereunder affecting the operations or the business of such entity
stayed, or if the stay of any such order or proceeding thereafter shall be set
aside, or if, within sixty (60) days after the judicial appointment, without the
consent or acquiescence of such entity, of any trustee, fiscal agent, receiver
or liquidator of such entity or of all or any substantial part of its
properties, such appointment shall not have been vacated. For purposes of this
Agreement, the "insolvency" of a Partner shall be deemed to occur only when such
Partner shall make an assignment for the benefit of creditors or shall admit in
writing that its assets are insufficient to pay its liabilities as they come
due.
"Excess Nonrecourse Liability" shall mean an "excess nonrecourse
liability" within the meaning of Section 1.752-3(a)(3) of the Regulations.
"Excluded Expenses" shall have the meaning set forth in the Completion
Guaranty.
"Fair Market Rental Terms" shall mean, with respect to any portion of the
Property demised or proposed to be demised pursuant to a Lease as of any date,
the most probable rent and other terms that would be obtained at such time for
space in the Property, taking into account the premier position of the Property
among other Class A office buildings in Philadelphia, Pennsylvania central
business district at the time of such Lease, assuming that neither the landlord
nor tenant (or prospective tenant) is under any compulsion to rent.
"Final Occupancy Date for the Initial Office Premises" shall have the
meaning set forth in the Comcast Lease.
"Final Rent Commencement Date for the Initial Office Premises" shall have
the meaning set forth in the Comcast Lease.
"Financing Costs" shall mean all reasonable out-of-pocket costs incurred
by any Partner or the Partnership in favor of any third-party in connection with
the Initial Mortgage Loan for the following items: (a) legal costs in reviewing,
negotiating, finalizing and executing the Mortgage Loan Documents or any other
documents evidencing or securing the Initial Mortgage Loan, (b) all fees, costs
and other charges paid to the lender(s) of the Initial Mortgage Loan, (c) title
insurance premiums, survey costs and other title charges, (d) interest rate
hedging costs, (e) fees paid to a third-party, unaffiliated mortgage broker, (f)
fees and costs paid in connection with or pursuant to the Rate Lock Agreement,
and (g) fees, costs and expenses of the
-17-
Mortgage Lender's counsel and of any third party consultants hired to prepare
reports and studies for the Mortgage Lender.
"First Tier Residual Sharing Percentage" shall mean the Percentage
Interests of the Partners.
"Foreign Partner" shall have the meaning set forth in Section 9.01(k)
hereof.
"GAAP" shall mean United States generally accepted accounting principles,
consistently applied.
"General Partner" shall mean, initially, Liberty Property Philadelphia
Corporation IV East, a Pennsylvania corporation.
"Gross Asset Value" shall mean, with respect to any asset, such asset's
adjusted basis for federal income tax purposes, except as follows:
(i) the initial Gross Asset Value of any asset contributed by a
partner to the Partnership shall be the gross fair market value of such asset at
the time of such contribution;
(ii) the Gross Asset Values of all Partnership assets may, be
adjusted to equal their respective gross fair market values, as reasonably
determined by the General Partner, as of the following times: (a) the
acquisition of an additional interest in the Partnership by any new or existing
Partner in exchange for more than a de minimis capital contribution; (b) the
distribution by the Partnership to a Partner of more than a de minimis amount of
Partnership property as consideration for an interest in the Partnership; and
(c) the liquidation of the Partnership within the meaning of Regulations Section
1.704-1(b)(2)(ii)(g);
(iii) the Gross Asset Value of any Partnership asset distributed to
any Partner shall be adjusted to be the gross fair market value of such asset on
the date of distribution, as determined by the General Partner in the exercise
of its good faith business judgment; and
(iv) the Gross Asset Values of Partnership assets shall be increased
(or decreased) to reflect any adjustments to the adjusted basis of such assets
pursuant to Code Section 734(b) or Code Section 743(b), but only to the extent
that such adjustments are taken into account in determining Capital Accounts
pursuant to Section 1.704-1(b)(2)(iv)(m) of the Regulations and Section IV
hereof; provided, however, that Gross Asset Values shall not be adjusted
pursuant to this clause (iv) to the extent the General Partner determines that
an adjustment pursuant to clause (ii) above is necessary or appropriate in
connection with a transaction that would otherwise result in an adjustment
pursuant to this clause (iv).
If the Gross Asset Value of an asset has been determined or adjusted
pursuant to clause (i), (ii) or (iv) above, such Gross Asset Value shall
thereafter be adjusted by the
- 18 -
Depreciation taken into account with respect to such asset for purposes of
computing Profits and Losses. The Gross Asset Value of the Property as of the
date of Completion of the Comcast Center Project will be $505,000,000.00. The
value will be allocated among the separate assets comprising the Property based
upon their relative adjusted federal income tax bases as of such date.
"Impaired Partner" shall have the meaning specified in Section 9.02.
"Independent Director" shall have the meaning specified in Section
1.04(c)(xxxii) hereof.
"Initial Approved Construction Budget" shall mean the initial construction
budget for the Property attached hereto as Schedule E, as amended from time to
time with the approval of the Investor B Limited Partner.
"Initial Capital Contribution" shall have the meaning specified in Section
3.03(a) hereof.
"Initial Mortgage Lender" shall mean Citi.
"Initial Mortgage Loan" shall mean the first mortgage loan to be made by
the Initial Mortgage Lender to the Partnership as has been approved by the
Investor B Limited Partner, in the original principal amount of $324,000,000 (or
so much as is advanced thereunder in the event the loan is reduced based on a
failure to obtain the Required Parking (as defined in the Completion Guaranty)
or based on a deviation in the rentable area of the Building) and any and all
extensions, renewals, amendments, modifications and/or restatements thereof
pursuant to the Commitment Letter [The confidential material contained herein
has been omitted and has been separately filed with the Commission.].
"Initial Reserve" shall have the meaning specified in Section 3.03(b)(i).
"Initial Tenant Costs" shall mean all the costs of leasing space in the
Building including, without limitation, tenant improvements, tenant allowances
(but excluding free rent), management fees for the Construction Work, leasing
commissions, legal fees and costs, and space planning costs, all relating to the
first tenancy by a tenant in accordance with the Leasing Guidelines (or
otherwise with the approval of Investor B Limited Partner) for any particular
space in the Building.
"Initiatee" shall have the meaning specified in Section 11.01(a) hereof.
"Initiator" shall have the meaning specified in Section 11.01(a) hereof.
"Interim Capital Transaction" shall mean a sale or other disposition of a
portion of the Property, or an interest therein, a financing (excluding the
Initial Mortgage Loan and the LPLP Loan), refinancing, insurance award, partial
condemnation, easement, sale or other
- 19 -
transaction which, in accordance with generally accepted accounting principles,
consistently applied, is treated as a sale, or financing but which does not
result in the dissolution of the Partnership.
"Internal Rate of Return" shall be calculated as set forth on Schedule H.
"Investor A Limited Partner" shall mean LPLP or any entity that shall
succeed LPLP as the Investor A Limited Partner in accordance with the provisions
of this Agreement.
"Investor A Related Party" shall mean LPT, LPLP and any Person that is
wholly-owned directly or indirectly by LPT and/or LPLP.
"Investor B Closing Capital Contribution" shall have the meaning set forth
in Section 3.01(a)(i).
"Investor B Construction Consultant" shall mean de Stefanis & Associates,
or such other Person designated by the Investor B Limited Partner in its sole
discretion.
"Investor B Deferred Capital Contribution" shall have the meaning set
forth in Section 3.01(a)(i) hereof.
"Investor B Deferred Capital Default" shall have the meaning set forth in
Section 3.01(a)(ii) hereof.
"Investor B Limited Partner" shall mean 1701 JFK Boulevard Philadelphia,
L.P., a Delaware limited partnership or any entity that shall succeed 1701 JFK
Boulevard Philadelphia, L.P. as the Investor B Limited Partner in accordance
with the provisions of this Agreement.
"Investor B Related Party" shall mean and refer to an Affiliate of the
Investor B Limited Partner.
"Investor B Related Loan Termination" shall mean that a Commitment
Termination has occurred and the reason therefor is the occurrence of one or
more of the following: (a) the failure of a condition precedent to closing under
any of Sections 3(b), 3(c), 3(f), 3(g), 3(i), 3(j), 3(k), 3(y), 3(aa), 3(bb) or
3(gg) of the Commitment Letter which results from the acts or omissions of the
Investor B Limited Partner or a breach of representation or warranty (or
inability to make a representation or warranty required to be made in the
Mortgage Loan Documents) relating to the affairs of the Investor B Limited
Partner or its Affiliates, or (b) the failure by the Investor B Limited Partner
to execute any document or perform any obligation expressly required to be
executed or performed by the Investor B Limited Partner.
"Lease" shall mean any lease with the Partnership or by which the
Partnership is bound.
- 20 -
"Leasing Guidelines" shall mean, for each fiscal year of the Partnership,
an annual leasing plan proposed by the General Partner and approved by the
Investor B Limited Partner setting forth (a) a listing of each space in the
Property then vacant or expected to be or become vacant during such year and
showing the size thereof and the recommended rent per square foot of such space
and other material economic terms, and (b) a schedule listing other significant
actions proposed with respect to the leasing or re-leasing of the Property;
provided, that the General Partner shall update the Leasing Guidelines on
January 1 and July 1 of each year. The Leasing Guidelines for the 2006 fiscal
year shall be the initial Leasing Guidelines attached hereto as Schedule G.
"Leasing Guidelines Dispute" shall have the meaning set forth in Section
7.01(d)(i) hereof.
"Liberty Related Loan Termination" shall mean that a Commitment
Termination has occurred and the reason therefor is the occurrence of one or
more of the following:
(i) the failure of a condition precedent to closing under any of
Sections 3(b), 3(c), 3(f), 3(g), 3(i), 3(j), 3(k), 3(y), 3(aa), 3(bb) or 3(gg)
of the Commitment Letter which results from the acts or omissions of the
Investor A Limited Partner or the General Partner (as the case may be) or (a) a
breach of representation or warranty (or inability to make a representation or
warranty required to be made in the Mortgage Loan Documents) relating to the
affairs of the Investor A Limited Partner or its Affiliates or (b) the failure
by the InvestorA Limited Partner or the General Partner (as the case may be) to
execute any document or perform any obligation expressly required to be executed
or performed by the Investor A Limited Partner or the General Partner (as the
case may be);
(ii) the failure of a condition precedent to closing under any of
Sections 3(a), 3(d), 3(e), 3(h), 3(n), 3(o), 3(p), 3(q), 3(r), 3(s), 3(t), 3(u),
3(v), 3(w), 3(cc), 3(dd), 3(ee) (except for any such failure arising out of a
default by Comcast or the financial condition of Comcast), 3(ff), 3(ll), 3(mm),
3(nn), 3(pp) or 3(qq) of the Commitment Letter.
"Liberty Replacement Loan" shall mean a loan to be made by Investor A
Limited Partner or an Affiliate as a replacement for the Initial Mortgage Loan
described in the Commitment Letter on financial terms identical (provided that
the loan amount is increased by an amount equivalent to the amount of any
Negative Carry or Breakage Costs) and non financial terms substantially similar
to those set forth in the Commitment Letter.
"LIBOR" shall mean, as of any relevant date, the rate for United States
dollars for a one-month period which appears on Telerate Page 3750 as of 11:00
a.m., London time, on such date; provided, however, that if no such rate appears
on Telerate Page 3750 as described above on such date, the General Partner shall
select a comparable publication to determine LIBOR and provide notice thereof to
the Partners.
"Limited Partners" shall mean, collectively, the Investor A Limited
Partner, the Investor B Limited Partner and any other Person hereafter admitted
as a Limited Partner under
- 21 -
this Agreement, for so long as such Person shall remain a Limited Partner under
the terms of this Agreement.
"Liquidation Event" shall mean the sale or other disposition of all or
substantially all of the assets of the Partnership, or any other event resulting
in the dissolution and termination of the Partnership in accordance with Section
X hereof.
"LPLP" shall mean Liberty Property Limited Partnership, a Pennsylvania
limited partnership, and any successor to all or substantially all of its assets
and operations, whether pursuant to merger, consolidation, sale of substantially
all of its equity interests, sale of all or substantially all of its assets, or
any similar transaction.
"LPLP Credit Line Rate" shall mean the interest rate in effect from time
to time for borrowings under the revolving line of credit loan pursuant to the
Amended and Restated Credit Agreement dated December 22, 2005, between LPLP as
borrower, LPT, Bank of America, N.A., as Administrative Agent, J.P. Morgan
Chase, as Syndication Agent, and certain lenders identified therein, as that
agreement may be amended, or the corresponding rate under any replacement loan
providing the senior unsecured credit facility for LPLP which interest rate
shall be established based on the actual invoices issued under the aforesaid
Credit Agreement, copies of which invoices shall be delivered to the Investor B
Limited Partner monthly upon receipt thereof by the Investor A Limited Partner,
together with other supporting detail that may reasonably be requested by the
Investor B Limited Partner.
"LPLP Loan" shall mean the loan from the Investor A Limited Partner to the
Partnership evidenced by that certain Note dated December 1, 2000 in the
principal amount of up to $300,000,000 as of the date hereof and secured by that
certain unrecorded Subordinated Open-End Mortgage and Security Agreement (And
Fixture Filing) dated December 1, 2000, as each have been amended pursuant to
that certain First Omnibus Amendment dated as of March 24, 2006 which First
Omnibus Amendment has increased the principal amount of such loan to
$505,000,000.
"LPLP Loan Transition Date" shall have the meaning set forth in Section
3.02(g).
"LPT" shall mean Liberty Property Trust, a Maryland real estate investment
trust, and any successor to all or substantially all of its assets and
operations, whether pursuant to merger, consolidation, sale of substantially all
of its equity interests, sale of all or substantially all of its assets, or any
similar transaction.
"LPT Partner(s)" means each of the General Partner and the Investor A
Limited Partner.
"Major Lease" shall mean a Lease demising more than one (1) full floor at
the Property or more than [The confidential material contained herein has been
omitted and has been separately filed with the Commission.] rentable square feet
of space on more than one (1) floor at the Property.
- 22 -
"Management and Leasing Agreement" shall mean that certain Management and
Leasing Agreement, dated as of the date hereof, to be entered into by and
between the Partnership, as owner, and LPLP, as manager and leasing agent. A
copy of the Management and Leasing Agreement is annexed hereto as Schedule J. By
their execution and delivery of this Agreement, all of the Partners hereby
approve the Management and Leasing Agreement as in effect on the date hereof.
"Master Agreement" shall have the meaning set forth in the Background
section of this Agreement.
"Material Modification" shall mean with respect to Section 6.01(b)(vii)
any change in (i) any non-economic term of a Lease which would reasonably be
expected to have an adverse impact on the Partnership or (ii) any economic term
of a Lease.
"Mortgage Lender" shall mean the initial lender under the Initial Mortgage
Loan or any permitted successor lender thereunder and any lender in respect of
any permitted refinancing of the Initial Mortgage Loan.
"Mortgage Loan" shall mean the Initial Mortgage Loan and any refinancings
thereof expressly permitted or approved hereunder.
"Mortgage Loan Documents" shall mean documents to be executed in
connection with the Initial Mortgage Loan.
"Negative Carry" shall have the meaning set forth in the Rate Lock
Agreement.
"Net Cash Flow" shall mean, for any fiscal period, (i) any operating
receipts of the Partnership for such fiscal period (other than any unapplied
security deposits, prepaid rentals or other deposits by any tenant at the
Property, but specifically including amounts received by the Partnership under
the NOI Support Agreement and amounts received by the Partnership in
consideration of the termination of a Lease), less (ii) (A) any amounts required
to pay the costs and expenses (including without limitation, taxes) of the
Partnership incurred for such fiscal period which are not paid from any Capital
Transaction Net Proceeds, (B) any debt service payments (including principal
amortization) on the Mortgage Loan and any other Partnership indebtedness, (C)
without limiting the generality of clause (A) above, any capital expenditures
and leasing costs (including, without limitation, tenant improvements, tenant
allowance payments and leasing commissions (but excluding Initial Tenant Costs))
funded during such fiscal period from operating receipts of the Partnership and
Reserves derived from such operating receipts, (D) [reserved], and (E) any
portion of such operating receipts used by the General Partner to establish,
replenish and/or increase Partnership Reserves, as contemplated by the Approved
Budget or as otherwise determined in accordance with this Agreement plus (iii)
any funds released from Reserves during such fiscal period in accordance with
the Approved Budget applicable to such fiscal period, or as otherwise reasonably
determined by the General Partner, to the extent such Reserves were originally
derived from operating receipts and such
- 23 -
funds are available for distribution to Partners, rather than specifically for
payment to third parties.
"Net Hedging Gains" shall have the meaning set forth in the Rate Lock
Agreement.
"New Partner" shall have the meaning set forth in Section 3.01(a)(ii).
"NOI Support Agreement" shall mean that certain NOI Support Agreement of
even date, made by LPLP in favor of the Partnership and the Investor B Limited
Partner.
"Non-Controllable Items" shall have the meaning specified in Section
7.01(b) hereof.
"Nonrecourse Deductions" shall have the meaning set forth in Section
1.704-2(b)(1) of the Regulations.
"Nonrecourse Liability" shall have the meaning set forth in Section
1.704-2(b)(3) of the Regulations.
"Offer" shall have the meaning set forth in Section 9.01(m) hereof.
"Offeree Partner" shall have the meaning set forth in Section 9.01(m)
hereof.
"Offeror Partner" shall have the meaning set forth in Section 9.01(m)
hereof.
"Operating Account" shall have the meaning set forth in Section 8.04.
"Original Partnership Agreement" shall have the meaning set forth in the
Background section hereof.
"Partner Nonrecourse Debt" shall have the meaning set forth for such term
in Section 1.704-2(b)(4) of the Regulations.
"Partner Nonrecourse Debt Minimum Gain" shall have the meaning set forth
for such term in Section 1.704-2(i)(2) of the Regulations.
"Partner Nonrecourse Deductions" shall have the meaning set forth for such
term in Section 1.704-2(i) of the Regulations.
"Partner(s)" shall mean, individually or collectively (as the case may
be), the General Partner, the Investor A Limited Partner, the Investor B Limited
Partner and any other Person hereafter admitted as a Limited Partner under this
Agreement, for so long as such Person is a Limited Partner under the terms of
this Agreement.
- 24 -
"Partnership" shall mean Liberty/Commerz 1701 JFK Boulevard, L.P.,
formerly known as Liberty Property Philadelphia Limited Partnership IV East, a
Delaware limited partnership.
"Partnership Closing Costs" shall mean, collectively, those reasonable
costs and expenses relating to the closing of the transactions contemplated by
the Master Agreement (including, without limitation, the Comcast Refurbishment
Allowance, Excluded Expenses, reasonable title insurance premiums, survey
charges, lender fees and expenses, and any Partners' reasonable attorneys' fees
and expenses relating to the drafting, review, negotiation and finalization of
this Agreement and the other agreements contemplated by the Master Agreement,
this Agreement or the Initial Mortgage Loan (including Financing Costs), but
excluding (i) any transfer tax imposed upon the initial issuance of a limited
partner interest to the Investor B Limited Partner, payment of which transfer
taxes shall be the sole responsibility of the Investor A Limited Partner
exclusively; and (ii) any brokerage fees or advisory fee required to be paid to
third parties in respect of the equity transactions contemplated by the Master
Agreement (Investor A Limited Partner shall be responsible for any payments due
to [The confidential material contained herein has been omitted and has been
separately filed with the Commission.] with respect to the acquisition by
Investor B Limited Partner of its Partnership Interest, and Investor B Limited
Partner shall be responsible for any fees due to [The confidential material
contained herein has been omitted and has been separately filed with the
Commission.] with respect to such acquisition)). The Partners acknowledge that
any fees payable to [The confidential material contained herein has been omitted
and has been separately filed with the Commission.] Affiliates in connection
with the placement of the Initial Mortgage Loan shall constitute Partnership
Closing Costs. Attached hereto as Schedule L is an initial estimate of the
Partnership Closing Costs.
"Partnership Interest" shall mean, with respect to any Partner, its total
economic interest in the Partnership as a Partner, including, without
limitation, its right to receive distributions of cash and allocations of
income, gain and loss in accordance with this Agreement.
"Partnership Minimum Gain" shall have the meaning set forth for such term
in Section 1.704-2(b)(2) of the Regulations.
"Percentage Interest" shall mean, with respect to any Partner, the
"Percentage Interest" specified for such Partner in Schedule B annexed hereto.
"Person" shall mean a corporation, an association, a partnership (general
or limited), a joint venture, an estate, a trust, a limited liability company, a
limited liability partnership, any other legal entity, or an individual.
"PIDC" shall have the meaning set forth in Section 3.02(c) hereof.
"Plans and Specifications" shall have the meaning set forth in the
Completion Guaranty.
- 25 -
"Plaza" shall mean collectively, Units 3 and 3A described in the
Condominium Declaration.
"Pre Approved Major Lease" shall mean a Major Lease to a Pre-Approved
Tenant which complies in all respects with the Leasing Guidelines.
"Pre Approved Tenant" shall mean the Persons designated under the Leasing
Guidelines as Pre Approved Tenants.
"Pre Completion Period" shall mean the period prior to the Transition
Date.
"Pre-Completion Return" shall mean, with respect to the Investor B Limited
Partner for any relevant accrual period, an amount equal to a return at the
applicable Pre-Completion Return Rate on such Partner's Initial Capital
Contribution for such accrual period, provided that for the purposes of
Pre-Completion Return, after [The confidential material contained herein has
been omitted and has been separately filed with the Commission.] the Investor B
Limited Partner's Initial Capital Contribution shall be deemed to include the
Investor B Closing Capital Contribution and the Investor B Deferred Capital
Contribution (whether or not made provided there is no Investor B Deferred
Capital Default) but, if the Investor B Deferred Capital Contribution is not
contributed, the Pre-Completion Return Rate on the Investor B Deferred Capital
Contribution shall be reduced by the Pre-Completion Return Reduction for the
period of time from [The confidential material contained herein has been omitted
and has been separately filed with the Commission.] until the Investor B
Deferred Capital Contribution is contributed.
"Pre-Completion Return Rate" shall mean an amount equal to the greater of
(a) 5% per annum and (b) the LPLP Credit Line Rate.
"Pre-Completion Return Reduction" shall mean an amount equal to (i) the
Investor B Deferred Capital Contribution multiplied by (ii) a rate per annum
equal to 30-day LIBOR minus 25 basis points.
"Preferred Return" shall mean a return equal to [The confidential material
contained herein has been omitted and has been separately filed with the
Commission.] adjusted and calculated monthly on a Partner's Unreturned
Additional Capital Contribution and shall not constitute a guaranteed payment
within the meaning of Code Section 707(c).
"Profits" and "Losses" shall mean, for each fiscal year or other period,
an amount equal to the Partnership's taxable income or loss for such year or
period, determined in accordance with Code Section 703(a) (for this purpose, all
items of income, gain, loss or deduction required to be stated separately
pursuant to Code Section 703(a)(1) shall be included in taxable income or loss),
with the following adjustments:
- 26 -
(i) any income of the Partnership that is exempt from federal income
tax and not otherwise taken into account in computing Profits and Losses shall
be added to such taxable income or loss;
(ii) any expenditures of the Partnership described in Code Section
705(a)(2)(B) or treated as Code Section 705(a)(2)(B) expenditures pursuant to
Section 1.704-1(b)(2)(iv)(i) of the Regulations, and not otherwise taken into
account in computing Profits or Losses shall be subtracted from such taxable
income or loss;
(iii) if the Gross Asset Value of any Partnership asset is adjusted
pursuant to clause (ii), (iii) or (iv) of the definition of Gross Asset Value
herein, the amount of such adjustment shall be taken into account as gain or
loss from the disposition of such asset for purposes of computing Profits or
Losses;
(iv) gain or loss resulting from any disposition of Partnership
property with respect to which gain or loss is recognized for federal income tax
purposes shall be computed by reference to the Gross Asset Value of the property
disposed of, notwithstanding that the adjusted tax basis of such property
differs from its Gross Asset Value;
(v) in lieu of the depreciation, amortization and other cost
recovery deductions taken into account in computing such taxable income or loss,
there shall be taken into account Depreciation for such fiscal year or other
period, computed in accordance with the definition of Depreciation herein; and
(vi) notwithstanding any other provisions hereof, any items which
are specially allocated pursuant to Section 4.01(c) or 4.03 hereof shall not be
taken into account in computing Profits or Losses.
"Property" shall have the meaning set forth in the Background section of
this Agreement.
"Purchase Option" shall have the meaning specified in Section 11.01(a)
hereof.
"Put Notice" shall have the meaning specified in Section 9.03 hereof.
"Put Option" shall have the meaning specified in Section 9.03(b) hereof.
"Put Option Price" shall have the meaning specified in Section 9.03(b)
hereof.
"Qualified Appraiser" shall have the meaning specified in Schedule I
attached hereto.
"Qualified Person" shall have the meaning set forth in Section 9.01(b)
hereof.
"RACP Grant" shall have the meaning set forth in Section 3.02(c) hereof.
- 27 -
"Rate Lock Agreement" shall mean that certain Extended Rate Lock Agreement
by and between LPLP and Citigroup Global Markets, Inc. dated March 20, 2006.
"Reconciliation Statements" shall have the meaning set forth in Section
8.02(c)(i) hereof.
"Refinance Capital Contribution" shall have the meaning set forth in
Section 3.05(e).
"Refinance Loan" shall have the meaning set forth in Section 3.02(j).
"Refinance Preferred Return" shall have the meaning set forth in Section
3.05(e).
"Regulations" shall mean the final and temporary Income Tax Regulations
promulgated under the Code, as the same may be amended from time to time
(including corresponding provisions of succeeding regulations).
"Regulatory Allocations" shall have the meaning set forth in Section
4.03(f) hereof.
[The confidential material contained herein has been omitted and has been
separately filed with the Commission.]
"Reserves" shall mean funds set aside by the General Partner as reserves,
from Capital Contribution or gross cash receipts of the Partnership and in
amounts determined by the General Partner upon prior written approval by the
Investor B Limited Partner (which approval shall not be unreasonably withheld,
delayed or conditioned) or in the Approved Budget, that are necessary or prudent
for future costs, expense, and payments not likely to be covered out of any
other account of the Partnership, including, without limitation, possible (a)
working capital, (b) capital expenditures, tenant improvements and allowances
and leasing commissions (excluding Initial Tenant Costs) in respect of the
Property and (c) escrow or reserve requirements under the Mortgage Loan
Documents.
"Review Lease" shall have the meaning set fort in Section 6.01(b)(vii).
"Review Lease Term Sheet" shall have the meaning set forth in Section
6.01(b)(vii) hereof.
"Round I Appraisal" shall have the meaning set forth in Schedule I
attached hereto.
"Round II Appraisal" shall have the meaning set forth in Schedule I
attached hereto.
"SEC" shall have the meaning set forth in Section 12.10 hereof.
- 28 -
"Second Tier Residual Sharing Percentage" shall mean, (a) with respect to
the Investor A Limited Partner, [The confidential material contained herein has
been omitted and has been separately filed with the Commission.]%, (b) with
respect to the General Partner, [The confidential material contained herein has
been omitted and has been separately filed with the Commission.]% and (c) with
respect to the Investor B Limited Partner, [The confidential material contained
herein has been omitted and has been separately filed with the Commission.]%.
"Section 11.01 Default Purchase Right" shall have the meaning specified in
Section 11.01(b) hereof.
"Service" shall mean the United States Internal Revenue Service.
"SPC Party" shall have the meaning specified in Section 1.04(c)(xxxi)
hereof.
"SPC Party Organizational Documents" shall have the meaning specified in
Section 1.04(c)(xxxi) hereof.
"Special Sale Notice" shall have the meaning specified in Section 11.01(a)
hereof.
"Special Sale Price" shall have the meaning specified in Section 11.01(a)
hereof.
"Special Sale Right" shall have the meaning specified in Section 11.01(a)
hereof.
"Specified Distribution" shall have the meaning set forth in Section
5.05(a).
"SS Purchase Price" shall have the meaning specified in Section 11.01(a)
hereof.
"Standard Lease Form" shall mean the standard form of lease used by the
Partnership for the Building, a copy of which is attached hereto as Schedule K.
"Syndication Investor" shall mean any investor outside the United States
to whom a limited partner interest in the Investor B Limited Partner is
transferred or issued pursuant to an Eligible Syndication.
"Term" shall have the meaning set forth in Section 1.03 hereof.
"Termination Date" shall have the meaning set forth in Section 3.02(i).
"Third Appraiser" shall have the meaning set forth in Schedule I attached
hereto.
"Third Party Financing" shall have the meaning set forth in Section
6.01(b)(ii) hereof.
"Transfer" shall have the meaning set forth in Section 9.01(a) hereof.
- 29 -
"Transition Date" shall mean the date which is the earlier to occur of
[The confidential material contained herein has been omitted and has been
separately filed with the Commission.] or the Final Rent Commencement Date for
the Initial Office Premises.
"United States Person" shall have the meaning assigned to such term in the
Code.
"Unreturned Additional Capital" shall mean with respect to any Partner as
of any date, the Additional Capital Contributions of such Partner less any
repayment of the Additional Capital Contributions pursuant to Sections 5.01 or
5.02.
"Unreturned Refinance Capital" shall mean, as of any date, the Refinance
Capital Contribution of the Investor A Limited Partner less any repayment of the
Refinance Capital Contribution pursuant to Sections 5.01 or 5.02.
SECTION III
CAPITAL CONTRIBUTIONS
3.01. Capital Contribution.
(a) (i) The Investor B Limited Partner agrees to make a Capital
Contribution calculated in accordance with Schedule N payable as follows: (A)
the Investor B Limited Partner has contributed cash in the amount of $72,400,000
on the Closing Date (the "Investor B Closing Capital Contribution"), and (B)
Investor B Limited Partner irrevocably agrees to contribute cash in the amount
of $72,400,000 (the "Investor B Deferred Capital Contribution") on or before the
earliest of the following dates, (x) December 31, 2006 if as of that date
construction of the Building and related improvements is no more than thirty
(30) days behind the Approved Development Timeline as evidenced by a certificate
from the Investor B Construction Consultant, (y) within five (5) business days
of the date subsequent to December 31, 2006, when construction of the Building
and related improvements is no more than thirty (30) days behind the Approved
Development Timeline as certified by a certificate from the Investor B
Construction Consultant or (z) within five (5) business days of the Final
Occupancy Date for the Initial Office Premises.
(ii) If the Investor B Limited Partner fails to advance the Investor B
Deferred Capital Contribution when due in accordance with Section 3.01(a)(i),
and if such failure continues for twenty (20) days after receipt by the Investor
B Limited Partner of written notice from the General Partner (such failure, the
"Investor B Deferred Capital Default"), then [The confidential material
contained herein has been omitted and has been separately filed with the
Commission.]
3.02. Capital Contributions and Loans of the LPT Partners.
(a) [The confidential material contained herein has been omitted and has
been separately filed with the Commission.]
- 30 -
3.03. Additional Provisions Regarding Capital Contributions.
(a) The capital that is contributed, or deemed to be contributed, to the
Partnership by each Partner pursuant to Section 3.01 (including without
limitation the Investor B Deferred Capital Contribution, as and when
contributed), Section 3.02 and Section 3.03(b)(i) hereof, net of distributions,
if any, made to such Partner by the Partnership as of the date hereof, is
sometimes referred to in this Agreement as such Partner's "Initial Capital
Contribution". Except for its Initial Capital Contribution and the obligations
of the Investor A Limited Partner with respect to the LPLP Loan, no Partner
shall have any obligation to make capital contributions or loans to the
Partnership. Any payments by LPLP pursuant to the NOI Support Agreement or LPLP
pursuant to the Completion Guaranty shall not be Capital Contributions and after
the satisfaction of the LPLP Loan, shall not be loans to the Partnership.
(b) (i) In addition to Capital Contributions pursuant to Section 3.01 and
Section 3.02 each Partner shall fund on the date hereof (and its Initial Capital
Contribution shall be adjusted accordingly) its pro rata share of the estimate
of Partnership Closing Costs (the "Closing Cost Reserve") set forth on Schedule
L which includes a $[The confidential material contained herein has been omitted
and has been separately filed with the Commission.] initial working capital
reserve (the "Initial Reserve"). If subsequent to the date hereof, the
Partnership or any of the Partners shall incur or pay any Partnership Closing
Costs that shall not have been included on Schedule L, then each of the Partners
shall, notwithstanding anything contained herein to the contrary, contribute to
the Partnership cash (and their Initial Capital Contributions shall be adjusted
accordingly) in an amount equal to their pro rata share based on their
respective Percentage Interests of such Partnership Closing Costs. Such amounts
shall be paid within [The confidential material contained herein has been
omitted and has been separately filed with the Commission.] business days of
notice from the General Partner for Partnership Closing Costs incurred after
such date. Any amounts in this reserve for Financing Costs may be used to pay
down the LPLP Loan and then re-borrowed under the LPLP Loan when necessary to
pay Financing Costs. Upon the [The confidential material contained herein has
been omitted and has been separately filed with the Commission.] anniversary of
the funding of the Initial Mortgage Loan: (A) if the amount on the Closing Cost
Reserve (in excess of the Initial Reserve) is $[The confidential material
contained herein has been omitted and has been separately filed with the
Commission.] or greater, the full amount of the Closing Cost Reserve in excess
of the Initial Reserve shall be repaid pro rata to the Partners based on
Percentage Interests and (B) if the amount is less than $[The confidential
material contained herein has been omitted and has been separately filed with
the Commission.], it shall be added to the Initial Reserve.
(ii) In the event a Partner fails to make its Capital Contribution
required pursuant to Section 3.03(b)(i), the other Partner may, but is not
obligated to, make such Capital Contribution and all of the Capital
Contributions made by such Partner pursuant to Section 3.03(b)(i), together with
all Capital Contributions made by such Partner pursuant to Section 3.03(b)(iii),
shall be deemed Additional Capital Contributions. For the purposes of this
Section 3.03(b)(ii) the Investor A Related Parties shall be considered one
Partner.
- 31 -
(iii) If at any time after the Closing Date the General Partner and the
Investor B Limited Partner determine that (A) the Partnership is in need of
additional funds for operational and/or capital needs in excess of Initial
Capital Contributions, loan proceeds, reserves held by the Partnership, and
operating receipts available therefor, (B) such need for funds is not the
responsibility of the Investor A Limited Partner under the Completion Guaranty
or NOI Support Agreement and is not the result of the criminal conduct, willful
misconduct, fraud or gross negligence of the General Partner or its affiliates,
or a breach by the Investor A Limited Partner under the Completion Guaranty or a
breach by the Investor A Limited Partner under the NOI Support Agreement, and
(C) if third-party debt financing for such funds is not available on
commercially reasonable terms or is not permitted under any then-applicable
Mortgage Loan Documents, the General Partner shall deliver written notice to the
other Partners, advising such Partners of the amount of additional funds
required by the Partnership, the purpose for which such funds are to be used,
and the date such funds are required to be advanced (such notice being referred
to hereinafter as an "Additional Capital Request").
(iv) Each Limited Partner, upon receipt of an Additional Capital Request
from the General Partner pursuant to Section 3.03(b)(iii) hereof, shall
thereupon have the right, but not the obligation, to contribute its pro rata
share (based on such Limited Partner's Percentage Interest as of the date of
such Additional Capital Request, with the Percentage Interest of the Investor A
Limited Partner being deemed, for purposes of this Section 3.03(b)(iv), to
include the Percentage Interest of the General Partner) of the amount of funds
set forth in the Additional Capital Request (an "Additional Capital
Contribution"). The date for contributing such Additional Capital Contribution
shall be the date set forth in the Additional Capital Request. If any Limited
Partner shall elect not to contribute its pro rata share of any funds requested
in an Additional Capital Request delivered pursuant to Section 3.03(b)(iii)
hereof, the other Limited Partner may, but shall not be required to, make an
Additional Capital Contribution to the Partnership for all or part of the amount
of such requested funds.
(v) Notwithstanding anything appearing to the contrary in Section 6.01(b)
hereof, an Additional Capital Contribution otherwise permitted under this
Section 3.03(b) may be made without the consent of any other Partner.
(vi) Any Partner may upon written notice to the other Partners contribute
funds to the Partnership which are necessary due to an Emergency Event and, in
such event, the other Partners may within [The confidential material contained
herein has been omitted and has been separately filed with the Commission.] days
of notice thereof contribute their pro rata share of the Emergency Capital and
any amounts so contributed will be distributed to the Partner initially
contributing the Emergency Capital as a return of capital. Any amounts
contributed pursuant to this Section 3.03(b)(vi) shall constitute Additional
Capital Contributions. In addition, the following amounts, if and to the extent
advanced by the Investor A Limited Partner, shall be treated in the same manner
as advances described above in this paragraph: (A) any sums paid by the Investor
A Limited Partner pursuant to the Overlay Agreement (as defined in the
Commitment Letter) which are in excess of the amounts that are payable by the
Investor A Limited Partner for the corresponding time periods pursuant to the
NOI Support Agreement, (B)
- 32 -
any sums paid by the Investor A Limited Partner in satisfaction of its personal
guaranty of the Breakup Fee pursuant to the Commitment Letter (to the extent not
reimbursed to the Investor A Limited Partner), provided that no Liberty Related
Loan Termination has occurred, and/or (C) any sums paid by the Investor A
Limited Partner pursuant to clause (ii) of the definition of "Comcast Lease
Tenant Improvements" as set forth in that certain Guaranty of Comcast Lease
Construction Obligations to be executed by the Investor A Limited Partner in
accordance with the Commitment Letter.
(c) All Capital Contributions, other than the Partners' respective Initial
Capital Contributions, shall be made in cash and not in kind. No Partner shall
have any personal liability with respect to the return of any Capital
Contribution made to the Partnership by any other Partner. No Partner shall have
the right to withdraw any part of its Capital Contribution, or receive any
distribution of its Partnership Interest or any interest thereon, except as
specifically provided in this Agreement. Except as specifically provided in this
Agreement, no time has been agreed upon for the return of any Partner's Capital
Contribution.
(d) Except as set forth in Section 3.03(b)(i), no Partner shall be
required to make any Additional Capital Contribution to the Partnership, and
unless otherwise provided under the Completion Guaranty, no Partner shall be
liable for any debts of the Partnership, and no Limited Partner shall be
required to restore any negative balance in its Capital Account.
3.04. Proration of Revenues and Expenses of the Partnership.
In consideration of the obligations of the Investor A Limited Partner
pursuant to Section 2(b)(xii) of the Completion Guaranty, all revenues and
expenses of the Partnership arising in or related to the period of time prior to
the Transition Date shall be allocated to the Investor A Limited Partner. The
Capital Account balance of the Investor A Limited Partner as determined under
Section 3.02(h) hereof shall not be adjusted as the result of any such
allocations or distributions, or by any amounts retained by the Investor A
Limited Partner, or paid or distributed by the Partnership to the Investor A
Limited Partner, pursuant to Section 13 of the Completion Guaranty.
SECTION IV
ALLOCATION OF INCOME AND LOSSES
4.01. Allocation of Profits and Losses.
(a) Except as otherwise provided in Section 3.04 hereof, Profits and
Losses from operations or from interest income earned by the Partnership and in
respect of any Interim Capital Transaction or Liquidation Event during a fiscal
year ("Capital Gain" or "Capital Loss", as applicable) shall be allocated among
the Partners as follows: After giving effect to the special allocations set
forth in Section 4.03 hereof, Profits from Operations or any Capital Gain in
respect of such Interim Capital Transaction or Liquidation Event shall be
allocated to the Partners having deficit balances in their Capital Accounts
(computed after taking into account
- 33 -
distributions pursuant to Section V with respect to such fiscal year, and after
adding back each Partner's share of Partnership Minimum Gain and Partner
Nonrecourse Debt Minimum Gain) in proportion to, and to the extent, of such
deficits. Any remaining Profits and Losses from operations or from interest
income or Capital Gain or Capital Loss shall be allocated to the Partners so as
to produce Capital Accounts for the Partners (computed in the manner set forth
in the preceding sentence) such that if an amount of cash equal to such positive
Capital Account balances were distributed in accordance with such positive
Capital Account balances, such distribution would be in the amounts, sequence
and priority set forth in Section 5 hereof.
(b) If the allocations under Section 4.01(a) hereof are not sufficient to
eliminate any deficit Capital Account balances or to cause the positive Capital
Account balances to equal an amount such that if the amount was distributed in
accordance with the positive Capital Account balance, such distribution would be
in the amounts, sequence and priority set forth in Section 5.02 hereof, then
instead of allocating the Capital Gain or Loss under Section 4.01(a) hereof,
items of income and gain and items of deduction and loss will be allocated under
Section 4.01(a) hereof in an effort to, eliminate any deficit Capital Account
balances and to cause the positive Capital Account balances to equal an amount
such that if the amount was distributed in accordance with the positive Capital
Account balance, such distribution would be in the amounts, sequence and
priority set forth in Section 5.02 hereof.
4.02. Loss Limitation. The Losses allocated pursuant to Section 4.01 shall
not exceed the maximum amount of Losses that can be so allocated without causing
any Partner to have an Adjusted Capital Account Deficit at the end of any fiscal
year. All Losses in excess of the limitations set forth in this Section 4.02
shall be allocated to the Partners that do not have Adjusted Capital Account
Deficits in proportion to such Partners' respective positive Adjusted Capital
Accounts.
4.03. Special Allocations.
(a) Partnership Minimum Gain Chargeback. Notwithstanding anything
contained in this Section IV to the contrary, if there is a net decrease in
Partnership Minimum Gain during any fiscal year, except as otherwise permitted
by Sections 1.704-2(f)(2), (3), (4) and (5) of the Regulations, items of
Partnership income and gain for such taxable year (and subsequent years, if
necessary) in the order provided in Section 1.704-2(j)(2)(i) of the Regulations
shall be allocated among all Partners whose shares of Partnership Minimum Gain
decreased during that year in proportion to and to the extent of such Partner's
share of the net decrease in Partnership Minimum Gain during such year. The
allocation contained in this Section 4.03(a) is intended to be a minimum gain
chargeback within the meaning of Section 1.704-2 of the Regulations, and shall
be interpreted consistently therewith.
(b) Partner Nonrecourse Debt Minimum Gain. Notwithstanding anything
contained in this Section IV to the contrary, if there is a net decrease in
Partner Nonrecourse Debt Minimum Gain, except as provided in Section 1.704-2(i)
of the Regulations, items of Partnership income and gain for such taxable year
(and subsequent years, if necessary) in the order provided in Section
1.704-2(j)(2)(ii) of the Regulations shall be allocated among all
- 34 -
Partners whose share of Partner Nonrecourse Debt Minimum Gain decreased during
that year in proportion to and to the extent of such Partner's share of the net
decrease in Partner Nonrecourse Debt Minimum Gain during such year. This Section
4.03(b) is intended to comply with the partner nonrecourse debt minimum gain
chargeback requirement in Section 1.704-2 of the Regulations and shall be
interpreted consistently therewith.
(c) Qualified Income Offset. Notwithstanding anything contained in this
Section IV to the contrary, in the event any Partner unexpectedly receives any
adjustments, allocations, or distributions described in Sections
1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5), or 1.704-1(b)(2)(ii)(d)(6) of
the Regulations, items of Partnership income and gain (including gross income)
shall be specially allocated to each such Partner in an amount and manner
sufficient to eliminate, to the extent required by the Regulations, the Adjusted
Capital Account Deficit of such Partner as quickly as possible, provided that an
allocation pursuant to this Section 4.03(c) shall be made only if and to the
extent that such Partner would have an Adjusted Capital Account Deficit after
all other allocations provided for in this Section IV had been tentatively made
as if this Section 4.03(c) were not in this Agreement. The allocation contained
in this Section 4.03(c) is intended to be a "qualified income offset" within the
meaning of Section 1.704-1(b)(2)(ii)(d) of the Regulations, and shall be
interpreted consistently therewith.
(d) Ordering. Sections 4.03(a), 4.03(b) and 4.03(c) hereof shall be
applied in the order provided in Section 1.704-2 of the Regulations.
(e) Gross Income Allocation. In the event any Partner has a deficit
Capital Account at the end of any fiscal year which is in excess of the sum of
(A) the amount such Partner is obligated to restore pursuant to any provision of
this Agreement, and (B) the amount such Partner is deemed to be obligated to
restore pursuant to the penultimate sentence of each of Sections 1.704-2(g)(1)
and 1.704-2(i)(5) of the Regulations, each such Partner shall be specially
allocated items of Partnership income and gain in the amount of such excess as
quickly as possible, provided that an allocation pursuant to this Section
4.03(e) shall be made only if and to the extent that such Partner would have a
deficit Capital Account in excess of such sum after all other allocations
provided for in this Article IV have been made as if Section 4.03(c) hereof and
this Section 4.03(e) were not in this Agreement.
(f) Curative Allocations. The allocations set forth in Sections 4.02 and
4.03(a) through (e) and (g) through (i) hereof (the "Regulatory Allocations")
are intended to comply with certain requirements of Sections 1.704-1(b) and
1.704-2 of the Regulations. Notwithstanding any other provisions of this Section
IV (other than the Regulatory Allocations), the Regulatory Allocations shall be
taken into account in allocating other Profits, Losses, and items of income,
gain, loss and deduction among the Partners so that to the extent possible, the
net amount of such allocations of other Profits, Losses and other items and the
Regulatory Allocations to each Partner shall be equal to the net amount that
would have been allocated to each such Partner if the Regulatory Allocations had
not occurred. In exercising their discretion under this Section 4.03(f), the
General Partner and the Investor B Limited
- 35 -
Partner, both acting reasonably, shall take into account future Regulatory
Allocations under Sections 4.03(a) and 4.03(b) that, although not yet made, are
likely to offset other Regulatory Allocations previously made under Sections
4.03(h) and 4.03(i).
(g) Section 754 Election Adjustments. To the extent that an adjustment to
the adjusted tax basis of any Partnership asset pursuant to Code Section 734(b)
or 743(b) is required, pursuant to Regulations Section 1.704-1(b)(2)(iv)(m), to
be taken into account in determining Capital Accounts, the amount of such
adjustment to the Capital Accounts shall be treated as an item of gain (if the
adjustment increases the basis of the asset) or loss (if the adjustment
decreases such basis) and such gain or loss shall be specially allocated to the
Partners in a manner consistent with the manner in which their Capital Accounts
are required to be adjusted pursuant to such section of the Regulations.
(h) Nonrecourse Deductions. Nonrecourse Deductions for any fiscal year or
other period shall be allocated in accordance with the Partners' Percentage
Interests.
(i) Partner Nonrecourse Deductions. In accordance with Section
1.704-2(i)(1) of the Regulations, any Partner Nonrecourse Deductions shall be
allocated to the Partners who bear the economic risk of loss for the Partner
Nonrecourse Debt to which such Partner Nonrecourse Deductions are attributable,
as provided in Section 1.702-2(i)(1) of the Regulations.
(j) Tax Allocations: Code Section 704(c). In accordance with Code Section
704(c) and the Regulations thereunder, income, gain, loss and deduction with
respect to any property contributed to the capital of the Partnership shall,
solely for tax purposes, be allocated among the Partners so as to take account
of any variation between the adjusted basis of such property to the Partnership
for federal income tax purposes and its initial Gross Asset Value under the
"traditional method" as set forth in Regulations Section 1.704-3(b)(1).
If the Gross Asset Value of any Partnership asset is adjusted pursuant to
clause (ii) or (iv) of the definition of "Gross Asset Value", subsequent
allocations of income, gain, loss and deduction with respect to such asset shall
take account of any variation between the adjusted basis of such asset for
federal income tax purposes and its Gross Asset Value in the same manner as
under Code Section 704(c) and the Regulations thereunder.
Any elections or other decisions relating to such allocations shall be
made by the General Partner in a manner that reasonably reflects the purpose and
intention of this Agreement and in accordance with the applicable provisions of
Section 8.05(a) hereof; provided, however, that the allocations of income, gain,
loss and deduction referred to in the immediately preceding two paragraphs shall
be made in accordance with the "traditional method" as set forth in Regulations
Section 1.704-3(b)(1). Allocations pursuant to this Section 4.03(j) are solely
for purposes of federal, state and local taxes and shall not affect, or in any
way be taken into account in computing, any Partner's Capital Account or share
of Profits, Losses, other items or distributions pursuant to any provision of
this Agreement.
- 36 -
For purposes of Code Section 704(c), any payments by the Investor A
Limited Partner pursuant to the NOI Support Agreement or pursuant to the
Completion Guaranty (or any other agreement which provides for payments to the
Investor B Limited Partner in the nature of damages) or by the Investor A
Limited Partner not treated as Capital Contributions pursuant to Section 3.03(a)
hereof but which are treated as contributions to the Partnership for federal
income tax purposes shall be accounted for by the Partnership as "built-in loss"
assets contributed by the Investor A Limited Partner to the Partnership having a
book value equal to $0.
(k) Tax Credits. Tax credits and tax credit recapture shall, pursuant to
Regulations Section 1.704-1(b)(4)(ii), be allocated among the Partners in
accordance with their respective Percentage Interests.
(l) Other Allocation Rules. Solely for purposes of determining the
Partners' proportionate share of the "excess nonrecourse liabilities" of the
Partnership within the meaning of Regulations Section 1.752-3(a)(3), the
Partners' interests in Partnership profits shall be their respective Percentage
Interests.
(m) Pre-Completion Return. To the extent the Pre-Completion Return shall
have been paid to the Investor B Limited Partner, gain from sale or liquidation
of assets shall first be allocated to the Investor B Limited Partner up to and
to the extent of such Pre-Completion Return. Any remaining gain shall be
allocated in accordance with Section 4.01 and 4.02 hereof.
SECTION V
DISTRIBUTIONS
5.01. Operations. Net Cash Flow shall be distributed to the Partners
quarterly not later than January 15, April 15, July 15 and October 15 with
respect to the just completed fiscal quarter, or more frequently than quarterly
at the sole discretion of the General Partner, in the following order of
priority:
(a) First to the Investor A Limited Partner to the extent of any unpaid
Refinance Preferred Return (if applicable), and then to the Partners, pari passu
to the extent of and in proportion to any unpaid Preferred Returns;
(b) To the Partners, pari passu to the extent of and in proportion to any
Unreturned Additional Capital Contributions; and
(c) thereafter, to the Partners, pari passu in proportion to their
respective First Tier Residual Sharing Percentages as of the date of such
distribution.
5.02. Capital Transactions. Capital Transaction Net Proceeds in respect of
any Interim Capital Transaction or Liquidation Event shall be distributed to the
Partners promptly
- 37 -
after the occurrence of the Interim Capital Transaction or the Liquidation Event
in the following order of priority
(a) First to the Investor A Limited Partner to the extent of any unpaid
Refinance Preferred Return (if applicable), and then to the Partners, pari passu
to the extent of and in proportion to any unpaid Preferred Returns;
(b) To the Investor A Limited Partner to the extent of any Unreturned
Refinance Capital (if applicable) and then to Partners, pari passu to the extent
of and in proportion to any Unreturned Additional Capital Contribution; and
(c) third, to the Partners, pari passu in proportion to their respective
Percentage Interests, until the Investor B Limited Partner shall have received,
whether pursuant to this Section 5.02(c) or pursuant to Section 5.01(c)
hereunder, an amount equal to a [The confidential material contained herein has
been omitted and has been separately filed with the Commission.]% Internal Rate
of Return on its Initial Capital Contribution calculated from the Transition
Date; and
(d) thereafter, to the Partners, pari passu in proportion to their
respective Second Tier Residual Sharing Percentages.
5.03. Pre-Completion Return. Notwithstanding anything to the contrary
contained herein, prior to the Transition Date, the Partnership shall on a
monthly basis distribute to the Investor B Limited Partner the Pre-Completion
Return. The Partnership shall distribute such amount from Capital Contributions
or Partnership borrowings (including the LPLP Loan).
5.04. Distributions in Kind. If any assets of the Partnership shall be
distributed in kind with the unanimous written approval of the Partners, such
assets shall be distributed to the Partners as tenants-in-common (if real
property) or joint owners without right of survivorship (if personal property)
in the same proportion as the Partners would have been entitled to cash
distributions. The amount by which the fair market value of any property to be
distributed in kind to the Partners exceeds or is less than the tax basis of
such property shall, to the extent not otherwise recognized by the Partnership,
be taken into account for purposes of (a) computing the allocation of gain or
net loss under Section 4.01 hereof, (b) the cumulative adjustments to the
Capital Accounts of the Partners, and (c) the distributions under Section V
hereof. If the assets of the Partnership are sold in a transaction in which, by
reason of the provisions of Section 453 of the Code or any successor thereto,
gain is realized but not recognized, such gain shall be taken into account in
computing net gain or net loss of the Partnership for purposes of allocation of
gain or loss under Section 4.01 hereof, and distributions of proceeds to the
Partners under Section V hereof, and the Partnership shall be deemed to have
been dissolved and terminated, notwithstanding any election by the Partners to
continue the Partnership.
5.05. Limitations on Distributions.
- 38 -
If and to the extent the Partnership makes a distribution (a "Specified
Distribution") to a Partner at a time when, after giving effect to the
distribution, the liabilities of the Partnership (other than liabilities to
Partners on account of their Partnership Interests and liabilities for which the
recourse of creditors is limited to specified property of the Partnership),
exceed the fair value of the assets of the Partnership (except that the fair
value of property that is subject to a liability for which the recourse of
creditors is limited shall be included in the assets of the Partnership only to
the extent that the fair value of that property exceeds that liability) then, if
and to the extent provided for in Section 17-607 of the Act, or any successor to
such Section (the "Designated Section"), a Partner who knew at the time of the
distribution that the distribution constituted a Specified Distribution shall be
liable to the Partnership for the amount of the distribution received by such
Partner (but a Partner who receives a Specified Distribution who did not know at
the time of such distribution that the distribution was a Specified Distribution
shall not be liable to the Partnership for the amount of the distribution).
Notwithstanding the foregoing, in no event shall a Partner who receives a
Specified Distribution be liable pursuant to this paragraph after the expiration
of three years from the date of such Specified Distribution, unless and to the
extent a different period of time for liability may be specified in the
Designated Section.
5.06. REIT Distributions. Any other provision of this Agreement to the
contrary notwithstanding, at the option of the General Partner, the Partnership
shall take, and the General Partner is authorized to take, reasonable action
which in the opinion of Wolf, Block, Schorr and Solis-Cohen, LLP or such other
tax counsel selected by the General Partner and reasonably acceptable to
Investor B Limited Partner, is necessary and consistent with LPT's qualification
as a REIT, to distribute sufficient amounts pursuant to this Section V to enable
LPT to pay shareholder dividends that will (i) permit LPT to satisfy the
requirements for qualifying as a REIT under the Code and Regulations; and (ii)
permit LPT to avoid any material federal income or excise tax liability of as a
result of its status as a REIT, assuming for purposes of this determination that
the only items on the federal income tax return of the LPT are the items shown
on its Schedule K-1 received from the Partnership and all cash distributions
received from the Partnership (less a reasonable allowance for non-deductible
administrative costs) have been paid as dividends to the shareholders of LPT on
the day after such distributions are received from the Partnership, provided
however that such distributions do not adversely effect the Investor B Limited
Partner.
5.07. Taxes Withheld. The General Partner may withhold taxes from
distributions to any Partner, or make a tax payment for the credit of any
Partner, to the extent such taxes are due by a Partner and such withholding is
required under the Code or Treasury Regulations or under any state or local
statute, regulation or ordinance. For purposes of this Agreement, any taxes so
withheld by the Partnership with respect to any amount distributable by the
Partnership to any Partner, or any amount disbursed by the Partnership for the
credit of any Partner on account of a tax required to be paid by the
Partnership, shall be treated as a distribution or payment to such Partner. To
the extent that the amount required to be remitted as taxes exceeds the amount
of the distribution to such Partner with respect to the fiscal period then
available to the Partnership to make the payment, the Partner shall pay over any
such excess to
- 39 -
the Partnership thirty (30) days following notice and demand from the
Partnership and such obligation shall be a recourse obligation of the Partner.
To the extent not paid upon demand, the amount shall be treated as a fully
recourse loan to such Partner, bearing interest, adjusted monthly, at 600 basis
points (6%) over LIBOR, commencing upon the date payment is made by the
Partnership to any taxing authority. General Partner shall promptly notify the
Partners of any payments of withheld taxes, but failure of General Partner to
notify a Partner of withholding shall not relieve such Partner of its
obligations pursuant to this subsection 5.07.
SECTION VI
MANAGEMENT DECISIONS AND RELATED MATTERS
6.01. Management.
(a) The business, affairs and assets of the Partnership shall be managed,
arranged and coordinated by the General Partner, which shall have, except as and
to the extent otherwise expressly provided in this Agreement or under the Act
(excluding, however, such requirements of the Act as are permitted to be
overridden by agreement among the Partners), full, exclusive and complete
discretion with respect thereto. Subject to and in accordance with the
provisions of this Agreement, the General Partner shall have all necessary and
appropriate powers to carry out the purpose of the Partnership set forth in
Section 1.04 hereof. The General Partner shall exercise its authority as such in
its capacity as a General Partner of the Partnership. Except as expressly set
forth in Sections 1.02, 1.04(c), 6.01(b), 6.05, 6.06, 7.01 and 13.02 hereof or
elsewhere in this Agreement, none of the Partners other than the General Partner
shall participate in the management or control of the Partnership or have any
right to approve, vote on or otherwise consent to any matter relating to the
business, affairs or assets of the Partnership.
Unless authorized in writing to do so by this Agreement or by the General
Partner, no attorney-in-fact, employee or other agent of the Partnership shall
have any power or authority to bind the Partnership in any way, to pledge its
credit or to render it liable for any purpose. No Partner other than the General
Partner shall have any power or authority to bind the Partnership unless the
Partner has been authorized in writing by the General Partner to act as an agent
of the Partnership in accordance with the previous sentence.
(b) Notwithstanding anything to the contrary contained in this Agreement,
but subject to Section 6.01(c) hereof, the General Partner shall not take any
Action Requiring Approval (as hereinafter defined) without the prior written
approval of the Investor B Limited Partner. As used in this Agreement, "Action
Requiring Approval" shall mean and refer to any of the following actions by the
Partnership or the General Partner:
(i) subject to Section 11.01, selling, conveying or otherwise
disposing of all or any material part of the assets or business of the
Partnership, leasing all or substantially all of the Property or interests
therein, voluntarily creating any lien, mortgage or material encumbrance on the
Property (other than in connection with the Initial Mortgage Loan,
- 40 -
the LPLP Loan, a Liberty Replacement Loan, any financing permitted pursuant to
Sections 3.02(i) or 3.02(j) or any other financing or refinancing permitted
under Section 6.01(c) hereof), or acquiring any assets (other than the lease of
the Plaza and acquisition of the Plaza pursuant to Condominium Declaration), in
each case other than as may be incidental to, or necessary or desirable in
connection with, the conduct of the Partnership's business;
(ii) borrowing money from any party ("Third Party Financing"), and
granting collateral security for such loan, other than (A) the LPLP Loan; (B)
the Initial Mortgage Loan; (C) any financing permitted pursuant to Sections
3.02(i) or 3.02(j), (D) a Liberty Replacement Loan, or (E) fixture and equipment
leases and installment sale agreements entered into, and trade payables
incurred, in the ordinary course of the Partnership's business
(iii) (except as set forth in Sections 3.01(a)(ii)) issuing any
additional interests in the Partnership, or pledging, encumbering, charging or
otherwise hypothecating the existing capital or assets of the Partnership or the
Property or any part thereof (except in connection with the Initial Mortgage
Loan or any other financing permitted under Section 6.01(b)(ii) hereof);
(iv) expanding the scope of the business and activities of the
Partnership or, in the case of the Partnership, engaging in any business other
than the acquisition, ownership, renting, leasing, financing, refinancing,
management, operation, development, improvement, renovation, refurbishment,
building upon, licensing, repair, mortgaging, sale and disposition of the
Property and activities ancillary or incidental thereto;
(v) issuing guaranties or similar instruments in respect of any of
the assets or the business of the Partnership (other than guaranties and
indemnities with respect to the Mortgage Loan) or any third party's business;
(vi) amending, waiving or changing this Agreement, the Certificate,
the Mortgage Loan Documents, the NOI Support Agreement, the Completion Guaranty
or the Management and Leasing Agreement, Master Agreement, or any other
agreement concluded between the Partnership and an Affiliate of a Partner (other
than as expressly set out herein);
(vii) [The confidential material contained herein has been omitted
and has been separately filed with the Commission.]
(viii) subject to Section 7.01(c) hereof, make any expenditure for
any expense which is not a Non-Controllable Item in excess of (x) the greater of
$[The confidential material contained herein has been omitted and has been
separately filed with the Commission.] or [The confidential material contained
herein has been omitted and has been separately filed with the Commission.]
percent ([The confidential material contained herein has been omitted and has
been separately filed with the Commission.]%) for any line item in the Approved
Budget or (y) [The confidential material contained herein has been omitted and
has been separately filed with the Commission.] ([The confidential material
contained herein has been omitted and has
- 41 -
been separately filed with the Commission.]%) in the aggregate for all items in
the Approved Budget.
(ix) possess Partnership property, or assign rights in specific
Partnership property, for other than a Partnership purpose;
(x) except as otherwise provided in this Agreement, admit any
additional Partners to the Partnership;
(xi) other than entering into the initial Management and Leasing
Agreement, enter into, amend, or cancel any management or leasing agreements
(other than agreements with leasing brokers), or replace the manager under the
Management and Leasing Agreement;
(xii) cancel, terminate, amend or modify the Condominium
Declaration, any reciprocal easement agreement or other easement, in any
material respect; provided, however, that the Investor B Limited Partner shall
not unreasonably withhold, delay or condition its approval with respect to any
amendment or modification of the Condominium Declaration, or reciprocal easement
agreements, or other easement, proposed by the General Partner that will not
have a material adverse impact on the Property;
(xiii) with the exception of the transactions, Contracts,
arrangements and agreements (and any amendments thereto) relating to the
development and construction of the Building and the tenant improvements
included within the Initial Tenant Costs (all of which shall be the
responsibility of LPLP pursuant to the Completion Guaranty and shall be governed
by Section XIII below) and subject to Section 7.01(c) hereof and any other
applicable provisions of this Section 6.01(b), enter into any transaction,
Contract, arrangement or agreement, or any material amendment to any existing
Contract, in each case if such transaction, Contract, arrangement or agreement
would require the expenditure by the Partnership of more than $[The confidential
material contained herein has been omitted and has been separately filed with
the Commission.] during any [The confidential material contained herein has been
omitted and has been separately filed with the Commission.] month period, except
as provided for in the Approved Budget;
(xiv) enter into any transactions with Affiliates of the General
Partner and/or Investor A Limited Partner, except as permitted under Section
6.03(b) hereof; and
(xv) except for the settlement of any claims arising out of or
relating in any way to the development and construction of the Building, the
Plaza, the Concourse and the tenant improvements included within the Initial
Tenant Costs (all of which claims are the responsibility of LPLP under the
Completion Guaranty), confess judgment or settle a claim if doing so would
create a liability or obligation on the part of the Partnership in excess of
$[The confidential material contained herein has been omitted and has been
separately filed with the Commission.] that would not be covered by the
Partnership's liability insurance policy;
- 42 -
(xvi) with the exception of any actions or proceedings that the
General Partner may determine to initiate and prosecute arising out of or
relating in any way to the development and construction of the Building and the
tenant improvements included within the Initial Tenant Costs (all of which
claims are the responsibility of LPLP under the Completion Guaranty), take or
initiate any judicial, administrative or other legal action or proceeding on
behalf of the Partnership in or before any court, governmental agency or board
or arbitrator, including filing any motion or pleading in any such matter or
settling or compromising any such claim by or against the Partnership, other
than any action (A) to collect rentals and other amounts payable to the
Partnership or otherwise to enforce its rights under leases and other occupancy
agreements affecting the Property, (B) to dispossess any tenant or occupant
which is in default in its obligations to the Partnership, or (C) against
vendors, suppliers, and subcontractors in the ordinary course of business;
(xvii) employ any person as an employee of the Partnership;
(xviii) initiate a re-zoning or subdivision of the Property, amend
terminate or dissolve the Condominium Declaration, or convert the Property to a
cooperative or similar form of ownership (excepting therefrom the existing
condominium form of ownership);
(xix) make any election pursuant to Section 301.7701-3 of the
Regulations to classify the Partnership for federal income tax purposes as
anything other than a partnership;
(xx) establish working capital reserves in excess of $[The
confidential material contained herein has been omitted and has been separately
filed with the Commission.];
(xxi) change accounting firms pursuant to Article VIII or change in
any substantial way the accounting process or procedures employed in keeping the
books of account or preparing financial statements or income tax returns with
respect to the operations or management of the Partnership, including, without
limitation, a change of the Partnership's taxable year;
(xxii) lend funds belonging to the Partnership to any third party or
grant an extension of credit to any Person on behalf of the Partnership, except
in the ordinary course of business or as otherwise set forth in an Approved
Budget;
(xxiii) amend or modify the LPLP Loan;
(xxiv) cause the merger or consolidation of the Partnership with or
into any other Person, or the liquidation, termination or dissolution of the
Partnership other than in accordance with the terms of this Agreement;
(xxv) file a voluntary petition or other institution of proceedings
to have the Partnership adjudicated bankrupt or insolvent, consent to the
institution of bankruptcy
- 43 -
or insolvency proceedings against the Partnership, confess a judgment against
the Partnership or make, execute or deliver on behalf of the Partnership any
assignment for the benefit of creditors;
(xxvi) pay or agree to pay any salary, bonus or other compensation
to any Partner, or any Affiliate of any Partner, except as specifically provided
for herein or in an Approved Budget, or enter into any agreements with
Affiliates whether pursuant to Section 6.03(b) hereof or otherwise;
(xxvii) take any action in violation of the fiduciary duty owed by
general partners to limited partners;
(xxviii) subject to Section 6.01(c), the emergency provisions of
Section 7.01(c) and Section 13, engage in any material repair, redevelopment or
development of the Property, to the extent such activity is not included in an
Approved Budget, including, without limitation, approval of plans,
specifications, schedules, budgets, contractors, architects, engineers and other
material matters relating thereto (for purposes of this paragraph, a repair
shall be deemed "material" if its cost equals or exceeds $[The confidential
material contained herein has been omitted and has been separately filed with
the Commission.]);
(xxix) perform any act in contravention of this Agreement
(including, but not limited to, acquiring any real property other than the
Property) or which would extend the term of the Partnership;
(xxx) establish or adjust Gross Asset Value (except as permitted in
subpart (iii) of the definition of Gross Asset Value) for any contributed or
distributed asset;
(xxxi) materially reduce or increase the scope of the insurance
program for the Partnership or settle or adjust any material insurance claim
under policies maintained by the Partnership;
(xxxii) making any material changes to the Standard Lease Form.
(xxxiii) with the exception of filings necessary or desirable in
connection with the development and construction of the Building, the Plaza, the
Concourse and the tenant improvements included within the Initial Tenant Costs,
file with any governmental agency any material documents relating directly or
indirectly to the business of the Partnership other than such filings which are
in the ordinary course of operating the Property or the business of the
Partnership or filings required by law (which shall, in each case, not require
prior approval of the Investor B Limited Partner); and
(xxxiv) make in-kind distributions;
(c) (i) Notwithstanding anything to the contrary herein, including
provisions hereof limiting the authority of the General Partner or requiring the
approval of the Investor B Limited Partner, the General Partner shall have the
right, without the consent of the
- 44 -
Investor B Limited Partner, to take all actions reasonably necessary to cause
the Partnership to comply with (v) the Condominium Declaration, (w) Leases
(including without limitation the Comcast Lease) and service contracts to which
the Partnership is a party or by which the Partnership or the Property is bound,
(x) legal requirements applicable to the Partnership and/or the Property, and
(y) the Mortgage Loan Documents, including, without limitation, obligations
contained in the Mortgage Loan Documents that require the Partnership to deposit
funds into deposit accounts established in the name of the Mortgage Lender.
Furthermore, and notwithstanding anything to the contrary herein, including
provisions hereof limiting the authority of the General Partner or requiring the
approval of the Investor B Limited Partner, if under such Mortgage Loan
Documents the exercise of certain rights with respect to the Property by the
General Partner requires compliance with conditions specified therein (e.g., the
right to contest real property taxes affecting the Property being conditioned on
the deposit of security with the Mortgage Lender), the General Partner shall
have the right to satisfy such conditions without the consent of the Investor B
Limited Partner.
(ii) Notwithstanding anything to the contrary herein, the Investor B
Limited Partner shall have the right on behalf of the Partnership to enforce the
Partnership's rights as "Owner" under the Management and Leasing Agreement to
terminate the Manager in accordance with the terms and conditions thereof.
(d) REIT Limitations.
(i) At any time when a direct or indirect beneficial interest in the
Partnership is owned by an entity that has elected to be taxed as a REIT under
the Code, the Partnership, without the prior written consent of the Investor A
Limited Partner in its sole discretion, shall not: (i) acquire any asset that is
not described in Section 856(c)(4)(a) of the Code or any successor provision;
(ii) enter into a loan secured by an interest in real property in which the
Partnership would receive income from a "shared appreciation provision" as
defined in Section 856(j)(5) of the Code; (iii) enter into a loan in which the
interest income depends, directly or indirectly, in whole or in part, on the
income or profits of any person for purposes of Section 856(f) of the Code; (iv)
enter into any lease involving real property where any portion of the rents
would be excluded from the definition of "rents from real property" under
Section 856(d)(2) of the Code; or (v) sell any property which, when sold, would
constitute property described in Section 1221(1) of the Code, except when the
net selling price is less than $[The confidential material contained herein has
been omitted and has been separately filed with the Commission.].
Notwithstanding the foregoing, if any of the provisions of Sections 856 or 857
of the Code are amended so that one of the requirements in clauses (i) through
(v) above becomes irrelevant to the qualification of a REIT as a REIT under the
Code and will not cause adverse tax consequences to a REIT if the requirement is
not complied with, such provision shall no longer apply to the Partnership. The
provisions of this Section 6.01(d) are in addition to any restrictions on the
authority of the General Partner pursuant to this Agreement.
(ii) In making any determinations under this Agreement in which the
classification of any entity as a "real estate investment trust" for federal
income tax purposes
- 45 -
is relevant, such determination or calculation shall be made by assuming that
only the items reported on such entity's federal income tax return are the items
reported on the Partner's Schedule K-1 received from the Partnership (or the
entity's distributive share of such items).
6.02. Liability and Indemnification of Partners.
(a) Except as otherwise provided in Section 6.02(d), no Partner nor any of
its Affiliates, nor any of their respective officers, trustees, directors,
partners, members, managers, shareholders, employees or agents, shall have any
liability to the Partnership or to any other Partner for any loss suffered by
the Partnership or any other Partner which arises out of any action or inaction
of such Partner or such other Person if such course of conduct did not
constitute criminal conduct, willful misconduct, fraud or gross negligence of
such Partner or such other Person; provided, however, that this provision shall
not limit, restrict or otherwise affect the rights or obligations of a Partner
or any of its Affiliates under this Agreement, the Master Agreement, the
Completion Guaranty, NOI Support Agreement, the Management and Leasing
Agreement, the LPLP Loan or any other agreement to which it is a party.
(b) The Partnership shall indemnify, defend and hold harmless each Partner
and/or its Affiliates, any of their respective officers, trustees, directors,
partners, members, managers, shareholders, employees or agents (each, an
"Indemnitee") from and against any and all claims or liabilities of any nature
whatsoever arising out of the business of the Partnership, including, without
limitation, (i) reasonable attorneys' fees and disbursements arising out of or
in connection with any action (excluding any Transfer by a Partner of all or any
portion of its Partnership Interest or by any other Person of any direct or
indirect beneficial ownership interest in any Partner) taken or omitted by it
pursuant to the authority granted by this Agreement, and (ii) the breach by the
Partnership of any Mortgage Loan Document; provided, however, that no
indemnification may be made to or on behalf of any Indemnitee if a judgment or
final adjudication adverse to such Indemnitee, and which is not subject to
further appeal, establishes that such Indemnitee's acts constituted criminal
conduct, willful misconduct, fraud or gross negligence; and provided, further,
that the amount of any payment otherwise required to be made to an Indemnitee
pursuant to this Section 6.02 with respect to any claim or liability shall be
reduced by the amount of insurance proceeds, if any, received by such Indemnitee
with respect to such claim or liability under any policy of liability insurance.
(c) Notwithstanding any other provision herein to the contrary, the
liability of the Partners under this Agreement (excluding the Partners'
obligations to make Initial Capital Contributions and the other Capital
Contributions identified in Section 3.01(b) hereof) shall be limited to their
respective Partnership Interests in the Partnership. No direct or indirect
partner, shareholder, officer, trustee, director, member or manager in or of any
Partner (and no officer, trustee, director, partner, member, manager, employee
or agent of such direct or indirect partner, shareholder, officer, trustee,
director, member or manager) shall have any personal liability under this
Agreement, except that each Partner shall be personally liable for the Initial
Capital Contributions and the other Capital Contribution identified in Section
3.01(b) hereof.
- 46 -
(d) Notwithstanding any other provision herein to the contrary, neither
(i) LPLP in its capacity as manager under the Management and Leasing Agreement,
(ii) LPLP in its capacity as the obligor under the Completion Guaranty, (iii)
the General Partner or LPLP pursuant to the Master Agreement, nor (iv) LPLP in
its capacity as the obligor under the NOI Support Agreement shall be considered
an "Affiliate" of any Partner for purposes of Section 6.02(a) or Section 6.02(b)
hereof; in the event of any conflict or inconsistency between the provisions of
the Management and Leasing Agreement, the NOI Support Agreement, Completion
Guaranty or Master Agreement, on the one hand, and the provisions of this
Section 6.02, on the other, the provisions of the Management and Leasing
Agreement, NOI Support Agreement or Completion Guaranty as appropriate, shall
govern and control.
6.03. Certain Conflicts of Interest.
(a) Partners and their Affiliates, except the General Partner for so long
as the Initial Mortgage Loan is outstanding, may engage in and possess interests
alone or in other business ventures, including, without limitation, the
ownership, development, operation, origination, financing and management of
mortgage loans, real property and other real estate related assets,
independently or with others (including, without limitation, activities which
may compete with the Partnership), and such activity shall not breach any
Partner's fiduciary duty to the Partnership and the other Partners. Neither the
Partnership nor any Partner shall by virtue of this Agreement have any right,
title or interest in such ventures except as set forth in Section 4.1 of the
Master Agreement.
(b) Except as provided in Section 1.04 hereof, the Partnership may enter
into agreements with Affiliates of one or more of the Partners; provided,
however, that any such agreement shall be substantially similar to the terms
that would be available on an arm's-length basis in an agreement between the
Partnership and a Person unaffiliated with such Partner or Partners (taking into
account differences in the relative standards for quality and reputation of the
party rendering the service). The General Partner and the Investor B Limited
Partner hereby approve the Management and Leasing Agreement, the Completion
Guaranty, the Master Agreement, the LPLP Loan, and the NOI Support Agreement as
in effect on the date hereof.
(c) Notwithstanding anything to the contrary contained herein or in the
Management and Leasing Agreement, if a default by the manager under the
Management and Leasing Agreement shall have occurred and be continuing, and the
General Partner does not commence to enforce the Partnership's remedies arising
therefrom within thirty (30) days following the expiration of any applicable
notice and cure periods, if notice is so given, then the Investor B Limited
Partner shall have the right to exercise the Partnership's remedies under the
Management and Leasing Agreement, including, without limitation, termination
thereof, if available to the Partnership pursuant to Section 12.2 thereof and
the commencement of any action or proceeding against the manager thereunder. In
addition, the Partnership, in its capacity as "Owner" under the Management and
Leasing Agreement, shall not (i) grant any approval required under the
Management and Leasing Agreement, (ii) approve any contract with an affiliate of
the manager requiring the consent of the owner under the Management and
- 47 -
Leasing Agreement, or (iii) authorize or approve the taking of any other action
by the manager requiring the authorization or approval of the owner under any
applicable provision of the Management and Leasing Agreement, in each case
without the approval (or deemed approval, as applicable) of the Investor B
Limited Partner, if and to the extent such action would require the approval of
the Investor B Limited Partner if proposed to be taken by the General Partner or
the Partnership.
(d) Notwithstanding anything to the contrary contained herein or in the
Condominium Declaration, if a default under the Condominium Declaration by any
party thereto other than the Partnership shall have occurred and be continuing,
and the General Partner does not commence to enforce the Partnership's remedies
arising therefrom within thirty (30) days following the expiration of any
applicable notice and cure periods, if notice is so given, then the Investor B
Limited Partner shall have the right to exercise the Partnership's remedies
under the Condominium Declaration on behalf of the Partnership.
6.04. Compensation; Reimbursement for Expenses; Other Expenses.
(a) No Partner and no employee of any Partner, as such, shall be entitled
to any salary or other compensation from the Partnership for any services
rendered or to be rendered by it to the Partnership; provided, however, that the
reasonable out-of-pocket expenses incurred by the General Partner from time to
time hereunder and the reasonable internal administrative costs of the General
Partner and its Affiliates for the preparation of books, records and documents,
budgets, preparation (or oversight of the preparation by outside accountants) of
financial reports and tax returns, and similar activities shall (subject to the
right of the Investor B Limited Partner to elect to have the General Partner
cause the Partnership to engage an outside accounting firm to prepare the
foregoing) be reimbursed by the Partnership upon demand of the General Partner
to the extent such expenses (i) are not duplicative of amounts separately
reimbursed by the Partnership to the property manager under the Management and
Leasing Agreement, (ii) are not incurred by the General Partner in performing
services required under the Management and Leasing Agreement to be performed by
the manager thereunder without compensation or reimbursement other than its
management fee, and (iii) are supported with appropriate documentation for such
amounts.
(b) All fees and disbursements of accountants, tax advisors and attorneys
retained by the Partnership and incurred in connection with the transactions
contemplated hereby and the preparation of any and all documents related to the
Partnership shall be paid by the Partnership.
(c) The Partnership shall reimburse any reasonable costs and expenses
incurred by the Partnership or any Partner to third-parties if incurred
undertaking the business of the Partnership, including, without limitation,
Partnership Closing Costs.
6.05. Partnership Status. Notwithstanding anything appearing to the
contrary, the Partnership shall not convert (or seek to convert) from a limited
partnership to a corporation, limited liability company or other form of legal
entity, nor shall the Partnership change or
- 48 -
attempt to change its status as a limited partnership, without the prior written
consent of all of the Partners. In addition, the Partnership shall take all
customary actions reasonably required to cause itself to be treated as a
partnership under the Code, and shall not make any tax elections inconsistent
with such treatment. No Partner shall take any action, or refrain from taking
any action, inconsistent with the foregoing.
6.06. Removal of General Partner.
(a) The Investor B Limited Partner may remove the General Partner at any
time if (i) an Event of Withdrawal occurs with respect to the General Partner,
(ii) the General Partner commits fraud or engages in criminal conduct in its
capacity as General Partner; (iii) the General Partner or an officer, principal
or employee thereof misappropriates funds of the Partnership or engages in
intentional and willful misconduct in connection with the Property or the
Partnership, and, in the case of misappropriation or intentional and willful
misconduct by an officer, principal or employee of the General Partner, the
General Partner shall not have reimbursed the Partnership for the entirety of
such misappropriation (or any damage resulting from such misconduct) for which
the Partnership is not made whole by insurance or a fidelity bond and removed
such officer, principal or employee from any relationship with the Partnership,
the Partnership's business or the Property; (iv) the General Partner is grossly
negligent in its capacity as General Partner and as a consequence thereof the
Partnership or the Investor B Limited Partner suffers a substantial loss or
damage and the General Partner shall not have made the Partnership or the
Investor B Limited Partner, as applicable, whole for such loss or damage
(provided, however, that gross negligence shall not be imputed to the General
Partner for any decision hereunder by the General Partner that has been
approved, or deemed approved, by the Investor B Limited Partner so long as the
General Partner is not grossly negligent in implementing such decision); (v) a
default by LPLP under the NOI Support Agreement has occurred and is not cured
within ten (10) days after written notice from the Investor B Limited Partner to
the Investor A Limited Partner, (vi) an Event of Default by LPLP under the
Completion Guaranty has occurred; (vii) a Management Termination Event under the
Management and Leasing Agreement has occurred (if the manager is an Investor A
Related Party).
(b) Any removal of the General Partner shall be effective ten (10) days
after written notice by the Investor B Limited Partner to the General Partner
specifying the basis for the removal. If the Investor B Limited Partner so
removes the General Partner, the Investor B Limited Partner shall select a new
General Partner, which new General Partner shall not be required to be a Partner
prior to its admission as the General Partner and, the removed General Partner
shall become a limited partner and the removed General Partner and Investor A
Limited Partner shall have no consent or approval rights with respect to the
Partnership except that (i) the foregoing shall not impair the rights of the
Investor A Limited Partner to initiate the Special Sale Right in accordance with
11.01 below; (ii) the Investor A Limited Partner shall have the right to approve
any Action Requiring Approval of the nature described in the following
subparagraphs of Section 6.01(b): (i) (except for the right to approve mortgages
and financing), (iv), (v), (vi) (except for the right to approve amendments,
waivers and changes of the
- 49 -
Mortgage Loan Documents), (ix), (xiv), (xxii), (xxiii), (xxiv), (xxv), (xxvii),
and (xxix); and (iii) the Investor A Limited Partner shall have the right to
take the actions and grant or withhold the approvals pursuant to Sections 5.06
and 6.01(d) hereof.
(c) Upon removal of the General Partner pursuant to this Section 6.06, the
removed General Partner and the Investor A Limited Partner shall be entitled to
Transfer all or any portion of their Partnership Interest to a Qualified Person,
provided (A) the transferee is not a Commerz Competitor, (B) has been identified
to the Investor B Limited Partner's reasonable satisfaction, and (C) the
Transfer otherwise complies with Sections 9.01(e), (g) and (l), and provided
further, that the Investor B Limited Partner shall have the right to acquire the
Partnership Interest of the General Partner and Investor A Limited Partner
pursuant to Section 9.01(m).
6.07. Execution and Delivery of Documents on Behalf of the Partnership.
Notwithstanding anything to the contrary contained herein, the execution and
delivery of any document by the Partnership to any third-party pursuant to any
action authorized or permitted hereby may be executed and delivered by the
General Partner acting alone, without the execution and delivery of such
document by the Investor B Limited Partner. Any third-party shall be entitled to
rely on such document as having been authorized pursuant to this Agreement. In
furtherance of the foregoing, the Investor B Limited Partner, acting alone, is
not empowered or authorized to execute or deliver any document on behalf of the
Partnership.
SECTION VII
APPROVED BUDGET AND LEASING GUIDELINES
7.01. Approved Budget and Leasing Guidelines.
(a) The General Partner shall, prior to [The confidential material
contained herein has been omitted and has been separately filed with the
Commission.], submit to the Investor B Limited Partner for its approval a
proposed initial operating budget for the partial year 2007 (beginning with the
initial occupancy of the Building by any Tenant). Attached hereto as Schedule G
are the initial Approved Leasing Guidelines.
(b) Beginning with calendar year, 2008, the General Partner shall (i)
submit not later than [The confidential material contained herein has been
omitted and has been separately filed with the Commission.] of the prior year a
proposed operating budget for the following year to the Investor B Limited
Partner for its approval, and (ii) submit not later than [The confidential
material contained herein has been omitted and has been separately filed with
the Commission.] and on [The confidential material contained herein has been
omitted and has been separately filed with the Commission.] of each year
proposed Leasing Guidelines or amendments to then existing Leasing Guidelines
(including the proposed standard form of Lease, if different in any material
respect from the approved standard form in effect) to the Investor B Limited
Partner for its approval. The Investor B Limited Partner shall promptly
communicate, in writing to the General Partner, its approval or disapproval of
each such
- 50 -
proposal. Any disapproval of a proposed budget must specify which particular
line items are disapproved. If the Investor B Limited Partner fails to send a
written approval or disapproval within [The confidential material contained
herein has been omitted and has been separately filed with the Commission.] days
after submission of the proposal, the proposal shall be deemed to have been
approved. If a proposed budget or proposed leasing guidelines are not approved
(or deemed approved) by the date that is [The confidential material contained
herein has been omitted and has been separately filed with the Commission.] days
prior to commencement of the applicable year or semi-annual period, as the case
may be, the then most recent Approved Budget or Leasing Guidelines, as the case
may be, shall continue to be in effect, except as follows: (i) to the extent
specific line items of the proposed budget or specific portions of the proposed
leasing guidelines have been approved by the Investor B Limited Partner, then
the budget for such specific line items and the leasing guidelines for such
specific portions shall be as so approved; (ii) subject to the preceding clause
(i), (A) the budget for any expenditures over which the Partnership has no
control, such as real property taxes, insurance premiums for then existing
coverage, utility charges, interest and principal due to then existing creditors
of the Partnership and to the holders of liens on Partnership property, and
amounts payable pursuant to the terms of then existing contracts (including,
without limitation, leases and brokerage agreements) by which the Partnership is
bound (collectively, "Non-Controllable Items") shall be the amount required to
pay such items; and (B) the budget for recurring capital expenditures and any
other items that are not Non-Controllable Items shall be the applicable amount
set forth in the then most recent Approved Budget, such amounts in (A) and (B)
being adjusted for (x) inflation as reflected in the Consumer Price Index since
the date of such most recent Approved Budget and (y) any changes in the level of
leasing or occupancy of the Property. The General Partner shall be entitled (but
not obligated) to submit to the Investor B Limited Partner for its approval
revisions to any Approved Budget or Approved Leasing Guidelines at any time
during the period to which such Approved Budget or Approved Leasing Guidelines
relate, and upon approval (or deemed approval) of such revisions by the Investor
B Limited Partner, the Approved Budget or Approved Leasing Guidelines, as the
case may be, as revised by such revisions, shall thereafter constitute the
Approved Budget or Approved Leasing Guidelines, as the case may be, for the
period covered thereby. The Investor B Limited Partner shall promptly
communicate in writing to the General Partner, its approval or disapproval of
each such proposed revision. If the Investor B Limited Partner fails to send a
written approval or disapproval within ten (10) business days after submission
of such revisions, the revisions shall be deemed to have been approved.
(c) The General Partner shall be authorized to make any expenditure if the
same is consistent with the applicable Approved Budget or if the expenditure
relates to a Non-Controllable Item or is required to address an emergency
situation, by eliminating a condition that poses a threat to life or by
protecting the Property against further damage associated with such emergency
situation (and in any such emergency situation, the General Partner shall use
its reasonable efforts to inform the Investor B Limited Partner of such
emergency as soon as possible and in any event within three (3) business days
after the occurrence thereof). An expenditure shall be deemed to be consistent
with the applicable Approved Budget if the amount thereof, when added to all
other expenditures pursuant to such Approved Budget, does
- 51 -
not exceed [The confidential material contained herein has been omitted and has
been separately filed with the Commission.] percent ([The confidential material
contained herein has been omitted and has been separately filed with the
Commission.]%) of the aggregate amount for all items in such Approved Budget.
(d) In any case in which the Investor B Limited Partner disapproves a
proposed budget or proposed leasing guidelines, the General Partner shall have
the right to dispute such disapproval, and to have such dispute resolved by
arbitration conducted in Philadelphia, Pennsylvania in accordance with the
provisions of this Section 7.01(d), and judgment upon the award rendered may be
entered in any court having jurisdiction thereof.
(i) If the General Partner desires to arbitrate such disapproval by
the Investor B Limited Partner, the General Partner shall give notice (a
"Dispute Notice") to that effect to the Investor B Limited Partner, whereupon
the General Partner and the Investor B Limited Partner shall endeavor to resolve
their dispute through diligent and good faith negotiations. If, notwithstanding
such negotiations, the General Partner and the Investor B Limited Partner shall
be unable to resolve their dispute on or before that date which is five (5)
business days after such Dispute Notice has been delivered, the Investor B
Limited Partner shall have the right to appoint any of the arbiters listed on
Schedule C annexed hereto (and if the first arbiter so appointed is not
available or is unwilling to serve, the Investor B Limited Partner shall have
the right to select another arbiter listed on Schedule C until an arbiter so
selected is willing and available to serve) (such arbiter, the "Arbiter") as the
arbitrator for such dispute. In the event none of the arbiters listed on
Schedule C annexed hereto is available or willing to serve, then either General
Partner shall have the right to apply to the President of the Real Estate Board
of the City of Philadelphia for the appointment of the arbiter, who shall not be
affiliated with any Partner and (A) if such dispute involves the withholding of
approval with respect to a proposed budget (a "Budget Dispute"), shall have at
least ten (10) years of experience in owning and operating first class office
properties located in Philadelphia, Pennsylvania, or (B) if such dispute
involves the withholding of approval with respect to proposed leasing guidelines
(a "Leasing Guidelines Dispute"), shall have at least ten (10) years of
experience as a commercial leasing broker for first-class office buildings in
Philadelphia, Pennsylvania.
(ii) The arbitration shall be conducted in accordance with the then
prevailing commercial arbitration rules of the American Arbitration Association
(the "AAA"), except that, to the extent that the Pennsylvania State Civil
Practice and Law Rules, or any successor statute, imposes requirements different
from the AAA in order for the decision of the Arbiter to be enforceable in the
courts of the Commonwealth of Pennsylvania, such requirements shall be complied
with in the arbitration.
(iii) The sole issues to be determined by the Arbiter, with respect
to any Budget Dispute, are the cost or scope of the budget item or whether the
budget item or items in question are necessary or desirable for the operation,
maintenance, upkeep, improvement and leasing of a "trophy" Class A office
building in Philadelphia, Pennsylvania, in which case the Investor B Limited
Partner's disapproval of such budget item or items shall be deemed to have
- 52 -
been unreasonable; provided, however, that in the case of any budget item
consisting of a proposed capital expenditure that is desirable for primarily
aesthetic reasons, rather than in order to continue the Building's status as a
"trophy" Class A office building or to improve the operation, maintenance or
upkeep of the Property or to enhance the marketability of the Property and/or
the leasing demand for space in the Property, the Investor B Limited Partner's
shall not be subject to challenge or overruling by the Arbiter. The sole issue
to be determined by the Arbiter, with respect to any Leasing Guidelines Dispute,
is whether the proposed leasing guidelines are consistent with Fair Market
Rental Terms, in which case the Investor B Limited Partner's disapproval of such
leasing guidelines shall be deemed to have been unreasonable. Within ten (10)
business days after the Arbiter has been chosen, both parties shall make
whatever presentations they wish to the Arbiter. Immediately thereafter, the
Arbiter shall make its decision. The Arbiter shall use his or her best efforts
to reach a decision within forty-eight (48) hours from the conclusion of the
hearing. It is the desire of the parties that the Arbiter render his or her
decision at the conclusion of the hearing. The Arbiter's decision may be made
orally or telephonically, provided that the Arbiter must confirm such decision
in writing, with a short summary of the reasons for the decision, within two (2)
business days thereafter. Copies of the Arbiter's decision shall be sent to each
of the Partners and shall be binding on the Partnership and on all of the
Partners. Any costs incurred by or payable to the Arbiter in any such proceeding
shall be borne by the non-prevailing party and each party shall bear the costs
of its own attorneys and other experts. The Arbiter shall have no power to vary
or modify any of the provisions of this Agreement, and its powers and
jurisdiction are hereby limited accordingly.
SECTION VIII
BOOKS, RECORDS AND BANK ACCOUNTS
8.01. Fiscal Year. The fiscal year of the Partnership shall be the
calendar year.
8.02. Maintenance of Accounts; Reports; Audited Financial Statements.
(a) Complete and accurate books, records and accounts shall be kept and
maintained for the Partnership by the General Partner in accordance with GAAP at
the principal place of business of the Partnership at the expense of the
Partnership, provided such expense is not (i) duplicative of any expense
separately reimbursed by the Partnership to the property manager under the
Management and Leasing Agreement or (ii) incurred by the General Partner in
performing services required under the Management and Leasing Agreement to be
performed by the manager thereunder without compensation or reimbursement other
than its management fee. Each Partner or its designated representative shall at
all reasonable times have access to, and may inspect and make copies of, such
books, records and accounts. The General Partner shall afford the Investor B
Limited Partner or its counsel access to all documents of the Partnership
(including, without limitation, the Mortgage Loan Documents, the Condominium
Declaration, the Management and Leasing Agreement, NOI Support Agreement and the
Completion Guaranty) upon not less than [The confidential material contained
herein has been
- 53 -
omitted and has been separately filed with the Commission.] prior written notice
given by the Investor B Limited Partner to the General Partner.
(b) The Partners agree that the Partnership's auditors shall initially be
Ernst & Young LLP. The General Partner shall not change the auditors without the
approval of the Investor B Limited Partner provided that the Investor B Limited
Partner may cause the General Partner to change the Partnership's auditor to any
of the accounting firms set forth on Schedule M or such other accounting firms
as is selected by the Investor B Limited Partner and approved by the General
Partner (not to be unreasonably withheld, delayed or conditioned). The General
Partner shall cause the auditors to audit the books of the Partnership for each
fiscal year and to prepare and issue audited financial statements to the
Partners as soon as reasonably practicable after the end of such fiscal year
(but in any event within ([The confidential material contained herein has been
omitted and has been separately filed with the Commission.] calendar days
thereafter) provided in the event that on or before [The confidential material
contained herein has been omitted and has been separately filed with the
Commission.] Investor B Limited Partner has not sold at least [The confidential
material contained herein has been omitted and has been separately filed with
the Commission.]% of the limited partnership interests in the Investor B Limited
Partner in an Eligible Syndication, the Investor B Limited Partner may by
written notice to the General Partner request that such financial statements
shall be issued on or before [The confidential material contained herein has
been omitted and has been separately filed with the Commission.] provided
further that the Partnership may in such event use an auditing firm different
from Ernst & Young LLP or those firms set forth on Schedule M for such audit.
Such annual statements shall include a balance sheet of the Partnership as at
the end of such fiscal year, together with related statements of income and
partners' capital, cash flow, and changes in financial position for such fiscal
year, all in reasonable detail and stating in comparative form the respective
figures for the corresponding date and period in the prior fiscal year, and
shall be prepared in accordance with United States generally accepted accounting
principles, consistently applied. Notwithstanding any other provisions of this
Agreement, to the extent more extensive financial statements are required
pursuant to the terms of the Mortgage Loan Documents, the General Partner shall
provide the Investor B Limited Partner with a copy of such financial statements.
(c) On or before the [The confidential material contained herein has been
omitted and has been separately filed with the Commission.] day following the
close of each calendar month and quarter, as applicable, the General Partner
shall furnish the following information to the Investor B Limited Partner:
(d) [The confidential material contained herein has been omitted and has
been separately filed with the Commission.]
(e) The General Partner shall direct the manager under the Management and
Leasing Agreement to (i) send to the Investor B Limited Partner a copy of (A)
each report relating to the Property that is sent to the General Partner at the
same time such report is sent to the General Partner, and (B) any other report
reasonably requested from time to time by the
- 54 -
Investor B Limited Partner and (ii) attend meetings with the Investor B Limited
Partner if requested by the Investor B Limited Partner.
(f) If the General Partner, acting reasonably and in good faith, shall
determine that it is necessary or desirable to establish or increase any
Partnership Reserves other than as contemplated by the applicable Approved
Budget, irrespective of whether the funds used to establish or increase such
Reserve, as the case may be, are derived from operating receipts or from
proceeds of Interim Capital Transactions or Liquidation Events, it shall
promptly notify the Investor B Limited Partner in writing of such determination
and request the written approval of the Investor B Limited Partner.
8.03. Preparation and Review of Tax Returns. The General Partner shall
cause the Partnership's auditors to timely prepare and file all federal, state,
local and other income and other tax returns and to timely distribute Form K-1
and other information returns to each of the Partners. The General Partner shall
supply to the Investor B Limited Partner or its designee drafts of all tax
returns or information returns of the Partnership on the earlier of [The
confidential material contained herein has been omitted and has been separately
filed with the Commission.] days prior to their due date or [The confidential
material contained herein has been omitted and has been separately filed with
the Commission.] days after the end of each calendar year. In the event the
Investor B Limited Partner objects to the treatment of or omission of any item
on such returns, it shall notify the General Partner within [The confidential
material contained herein has been omitted and has been separately filed with
the Commission.] days of receipt of the draft return as to which it has an
objection, and the General Partner shall not file any return prior to the
expiration of such [The confidential material contained herein has been omitted
and has been separately filed with the Commission.] day period. In the event the
Investor B Limited Partner fails to object as described in the preceding
sentence, the Investor B Limited Partner shall be deemed to have approved the
draft return. If the General Partner and Investor B Limited Partner cannot
resolve the objection prior to the due date for the affected return, the General
Partner shall, to the extent permitted by law, apply to extend the time for
filing such return. In the event of a deadlock in the resolution of the
objection, the General Partner and Investor B Limited Partner shall refer the
issue to (i) the most senior tax partner located in Philadelphia, Pennsylvania
of the international accounting firm which has the largest number of tax
professionals located in Philadelphia, Pennsylvania or (ii) a senior tax partner
at a law firm with substantial national real estate experience, and in either
case, is not regularly engaged by either the General Partner or Investor B
Limited Partner or any affiliate of either, and the decision of the person
chosen by such senior partner to resolve the objection shall be binding upon the
General Partner and Investor B Limited Partner. Notwithstanding the foregoing,
the General Partner may file such return prior to the resolution of such
objection, provided (i) that the filing is made within the time period the
General Partner and any other Affiliate of LPT generally files similar tax
returns, and in accordance with its customary tax and accounting approval and
compliance processes, (ii) that the General Partner receives advice from its
regularly engaged income tax professional that the filing position proposed in
the return which is disputed by the parties should not result in the imposition
of penalties against any of the Partners if the position were challenged by the
Internal Revenue Service, and (iii) that the General Partner
- 55 -
has otherwise fully complied with this Section 8.03. To the extent that the
General Partner files such return before the objection is resolved, the General
Partner shall file an amended return, as appropriate, to comply with the
determination by the arbitrator.
8.04. Bank Accounts; Temporary Investments. All receipts, funds and income
of the Partnership shall be deposited in the Partnership operating account (the
"Operating Account") which shall be controlled by the General Partner. The
Operating Account shall be in the name of the Partnership and be
interest-bearing (to the extent customarily available for the type of account
and the amount to be deposited) bank account or accounts of a commercial bank,
savings and loan association or other financial institution with a credit rating
of at least "[The confidential material contained herein has been omitted and
has been separately filed with the Commission.]" from [The confidential material
contained herein has been omitted and has been separately filed with the
Commission.] as the Partnership from time to time shall determine. Withdrawals
from such account or accounts shall be made on the signature of such Person(s)
designated by the General Partner and there shall be no commingling of the
moneys and funds of the Partnership (other than funds held by the Mortgage
Lender in one or more reserve accounts) with moneys and funds of any other
entity or Person. Notwithstanding the foregoing, the General Partner and the
Investor B Limited Partner agree that the Partnership shall be authorized to
invest Partnership funds not needed for Partnership purposes temporarily in
United States Treasury obligations, money market funds, certificates of deposit,
bankers' acceptances, or any other similar money market instruments or funds
(excluding those issued or managed by an Affiliate of a Partner, other than
Commerzbank AG and its Affiliates), in each case maturing not later than one
year following the date of investment, and such other similar money market
instruments or funds and such other short term investments as the General
Partner shall select.
8.05. Tax Elections; Tax Audits; Withholding.
(a) The General Partner shall at all times be, and have full powers and
responsibilities as, the "tax matters partner" of the Partnership for purposes
of Section 6231(a)(7) of the Code. The General Partner shall be authorized,
subject to the provisions of Sections 6.01(b) and 6.05 hereof, to cause the
Partnership to make or refrain from making any and all elections that are
permitted by the Code and the Regulations thereunder, including, without
limitation, elections relating to methods of depreciation, provided such
elections do not have a material adverse impact on the Partnership or any of the
Partners. The General Partner shall make the election referred to in Section 754
of the Code, or any similar provision enacted in lieu thereof, upon written
request therefor by any Partner; provided, however, that all expenses arising as
a result of such election as it relates to the interest so transferred shall be
borne by either the transferring Partner or the transferee. Each Partner shall,
upon request, supply such information as is necessary properly to give effect to
such election.
(b) In the event the Partnership shall be the subject of an income tax
audit by any Federal, state or local authority, any decisions of the Partnership
with respect to such final tax audit matters shall be made by the General
Partner with the prior written consent of the Investor B Limited Partner, not to
be unreasonably withheld, delayed or conditioned. All
- 56 -
expenses incurred in connection with any audit, investigation, settlement or
review of the Partnership shall be borne by the Partnership.
(c) Each Limited Partner and the Investor B Limited Partner shall at all
times be and remain a United States Person, such that the Partnership shall not
be required to effect any withholding or make any payment of taxes pursuant to
Sections 1441, 1442, 1445, or 1446 of the Code.
(d) All of the Partners shall file their separate federal and state income
tax returns strictly in accordance with the information provided to them by the
Partnership on their separate Form K-1 and no Partner shall file an IRS Form
8082, Notice of Inconsistent Treatment or Administrative Adjustment Request,
with respect to any partnership items (within the meaning of Code Sec.
6231(a)(3)) of the Partnership.
SECTION IX
ASSIGNABILITY OF PARTNERSHIP INTERESTS
9.01. Restrictions on Transfer or Assignment of Partnership Interests.
(a) Except as specifically provided in this Section IX (or as set forth in
Section 6.06), no Partner shall, directly or indirectly, sell, transfer, assign,
pledge, hypothecate or otherwise dispose of (collectively, "Transfer") all or
any portion of its Partnership Interest (or the proceeds thereof), or permit or
suffer such a Transfer or contract to do so, without the written consent of the
other Partners, which consent may be granted or withheld in the sole discretion
of such other Partners. For purposes of this Section 9.01, a Transfer of any
direct or indirect beneficial ownership interest in any Partner shall be deemed
to constitute a Transfer of such Partner's Partnership Interest, and shall be
prohibited by this Section 9.01(a), except as otherwise expressly permitted
under Section 9.01(b), 9.01(c) or 9.01(d) hereof.
(b) [The confidential material contained herein has been omitted and has
been separately filed with the Commission.]
(c) [The confidential material contained herein has been omitted and has
been separately filed with the Commission.]
(i) [The confidential material contained herein has been omitted and
has been separately filed with the Commission.]
(d) [The confidential material contained herein has been omitted and has
been separately filed with the Commission.]
(e) [The confidential material contained herein has been omitted and has
been separately filed with the Commission.]
- 57 -
(i) [The confidential material contained herein has been omitted and
has been separately filed with the Commission.]
(f) [The confidential material contained herein has been omitted and has
been separately filed with the Commission.]
(g) [The confidential material contained herein has been omitted and has
been separately filed with the Commission.]
(h) [The confidential material contained herein has been omitted and has
been separately filed with the Commission.]
(i) [The confidential material contained herein has been omitted and
has been separately filed with the Commission.]
(i) [The confidential material contained herein has been omitted and has
been separately filed with the Commission.]
(j) [The confidential material contained herein has been omitted and has
been separately filed with the Commission.]
(k) [The confidential material contained herein has been omitted and has
been separately filed with the Commission.]
9.02. Events of Withdrawal of a Partner. Upon the occurrence of an Event
of Withdrawal (other than a voluntary withdrawal) of any Partner (the "Impaired
Partner"), subject to Section 10.01 hereof, the legal representative of the
Impaired Partner shall have such power as the Impaired Partner possessed to
constitute a successor as an assignee of its Partnership Interest and to join
with such assignee in making application to substitute such assignee as a
Partner. Such legal representative shall succeed to the rights of the Impaired
Partner to receive distributions from the Partnership and allocations of income,
gain, loss, deduction and credit; provided, however, that such legal
representative shall not have the right to become a substitute Partner in the
place of the Impaired Partner unless the conditions of Section 9.01(b), 9.01(c)
or 9.01(d) hereof, as applicable, are first satisfied; and provided further,
that such legal representative shall not be entitled to become a substitute
General Partner without the approval of all Partners.
9.03. Put Option.
(a) In the event that any of the following events occurs, the Investor B
Limited Partner shall have the Put Option described in Section 9.03(b) below:
(i) [The confidential material contained herein has been omitted and
has been separately filed with the Commission.]
- 58 -
(b) The Investor B Limited Partner may, but is not obligated to, by
written notice to the Investor A Limited Partner (the "Put Notice") to be
delivered within [The confidential material contained herein has been omitted
and has been separately filed with the Commission.] days of any of the events
set forth in Section 9.03(a) hereof put its Partnership Interest to the Investor
A Limited Partner who shall be obligated to purchase the Partnership Interest
for a purchase price equal to [The confidential material contained herein has
been omitted and has been separately filed with the Commission.]% (the "Put
Option Price") of all of the Capital Contributions made by the Investor B
Limited Partner (the "Put Option"). The sale and transfer of the Partnership
Interest pursuant to the Put Option shall close on or before [The confidential
material contained herein has been omitted and has been separately filed with
the Commission.] days after the Put Notice and on such date the Investor A
Limited Partner shall pay the Put Option Price and [The confidential material
contained herein has been omitted and has been separately filed with the
Commission.] due as a result of such transaction.
SECTION X
DISSOLUTION AND TERMINATION
10.01. Events of Dissolution.
(a) The Partnership shall be dissolved upon the earliest to occur of the
following:
(i) on a date designated by all of the Partners;
(ii) the sale by the Partnership of all or substantially all of its
assets (unless the General Partner shall elect to continue the existence of the
Partnership pending collection of the deferred balance of any sales proceeds);
(iii) an Event of Withdrawal shall occur with respect to the General
Partner, unless the Investor B Limited Partner shall elect to continue the
business of the Partnership and, in furtherance thereof, shall appoint a
successor General Partner within 60 calendar days after such Event of
Withdrawal; or
(iv) December 31, 2050.
(b) Upon the occurrence of an Event of Withdrawal with respect to any
Partner other than the General Partner, the Partnership shall not be terminated,
the Partnership shall be reconstituted and the business of the Partnership shall
continue without interruption despite the occurrence of any such Event of
Withdrawal, and the interest of the Impaired Partner shall be governed by
Section 9.02 hereof.
- 59 -
10.02. Winding-Up, Liquidation and Distribution of Assets.
(a) Upon dissolution of the Partnership, an accounting shall be made by
the Partnership's independent accountants of the accounts of the Partnership and
of the Partnership's assets, liabilities and operations, from the date of the
immediately preceding accounting until the date of dissolution. The General
Partner shall immediately proceed to wind up the affairs of the Partnership.
(b) If the Partnership is dissolved and its affairs are to be wound up,
the General Partner shall:
(i) sell or otherwise liquidate all of the Partnership's assets as
promptly as practicable;
(ii) allocate net income and gain or net loss attributable to Net
Cash Flow up to and including the date of distribution in accordance with
Section 4.01(a) hereof (subject, however, to the provisions of Section 4.02
hereof), and allocate any net income and gain or net loss resulting from such
sale or liquidation in accordance with Section 4.01(b) hereof (subject, however,
to the provisions of Section 4.02 hereof), with proper adjustments to the
Capital Accounts of the Partners, so as to generate, to the extent possible,
Capital Account balances equal to the respective amounts of Capital Transaction
Net Proceeds distributable to the Partners pursuant to Section 5.02 hereof;
(iii) discharge all liabilities of the Partnership, including,
without limitation, liabilities to Partners who are creditors, to the extent
otherwise permitted by law, other than liabilities to Partners for
distributions, and establish such Reserves as the General Partner may determine,
with the written approval of the Investor B Limited Partner, to be necessary to
provide for contingent liabilities of the Partnership (for purposes of
determining the Capital Accounts of Partners, the amounts of such Reserves shall
be deemed to be an expense of the Partnership); and
(iv) distribute the remaining assets as follows:
(x) after giving effect to Section 10.02(b)(ii) hereof, to the
Partners in accordance with the applicable provisions of Section 5.02
hereof; and
(y) if any assets of the Partnership are to be distributed in
kind, the net fair market value of such assets as of the date of
dissolution shall be determined by independent appraisal or by agreement
of the Partners. Such assets shall be deemed to have been sold as of the
date of dissolution for their fair market value, and the Capital
Accounts of the Partners shall be adjusted pursuant to the applicable
provisions of Section 4.01 hereof to reflect such deemed sale.
(c) Notwithstanding anything to the contrary in this Agreement, upon a
liquidation within the meaning of Section 1.704-1(b)(2)(ii)(g) of the Treasury
Regulations, if
- 60 -
any Partner has a deficit Capital Account (after giving effect to all
contributions, distributions, allocations and other Capital Account adjustments
for all taxable years, including the year during which such liquidation occurs),
such Partner shall have no obligation to make any capital contributions, and the
negative balance of such Partner's Capital Account shall not be considered a
debt owed by such Partner to the Partnership or to any other Person for any
purpose whatsoever.
(d) Upon completion of the winding-up, liquidation and distribution of the
assets, the Partnership shall be deemed terminated.
(e) The General Partner shall comply with any requirements of applicable
law pertaining to the winding-up of the affairs of the Partnership and the final
distribution of its assets.
10.03. Certificate of Cancellation. When all debts, liabilities and
obligations of the Partnership have been paid and discharged or adequate
provisions have been made therefor and all of the remaining property and assets
of the Partnership have been distributed, a certificate of cancellation as
required by the Act shall be executed by the General Partner and filed with the
Delaware Secretary of State.
10.04. Effect of Filing of Certificate of Cancellation. Upon the filing of
the certificate of cancellation with the Delaware Secretary of State, the
existence of the Partnership shall cease, except for the purpose of suits, other
proceedings and appropriate action as provided in the Act. The General Partner
shall have the authority to distribute any Partnership property discovered after
dissolution, to convey real estate and to take such other action as may be
necessary on behalf of and in the name of the Partnership.
10.05. Return of Contribution Nonrecourse to Other Partners. Except as
provided by law or as expressly provided in this Agreement, upon dissolution,
each Partner shall look solely to the assets of the Partnership for the return
of its Capital Contribution. If the Partnership property remaining after the
payment or discharge of the debts and liabilities of the Partnership is
insufficient to return the Capital Contribution of one or more Partners, such
Partner or Partners shall have no recourse against any other Partner.
SECTION XI
SPECIAL SALE RIGHTS
11.01. Special Sale Right.
(a) No Partner shall have the right to initiate the sale of the Property
prior to the seventh anniversary of the date of the Final Occupancy Date for the
Initial Office Premises. On or after the seventh anniversary of the date of the
Final Occupancy Date for the Initial Office Premises, each of the Investor A
Limited Partner and the Investor B Limited Partner (each, an "Eligible
Initiating Partner") may invoke the following procedure (the "Special Sale
- 61 -
Right"): either Eligible Initiating Partner (the "Initiator") may notify the
other Eligible Initiating Partner (the "Initiatee") by written notice (the
"Special Sale Notice") stating the price (the "SS Purchase Price") for the
Property for which the Initiator would sell the Property on an all cash basis to
a third-party. [The confidential material contained herein has been omitted and
has been separately filed with the Commission.]
(b) [The confidential material contained herein has been omitted and has
been separately filed with the Commission.]
(c) [The confidential material contained herein has been omitted and has
been separately filed with the Commission.]
(d) [The confidential material contained herein has been omitted and has
been separately filed with the Commission.]
(e) [The confidential material contained herein has been omitted and has
been separately filed with the Commission.]
11.02. General Provisions Applicable to Sale of Partnership Interests
Under Section XI. Any sale pursuant to Section 11.01(b) shall also be subject to
the following terms and conditions:
(i) [The confidential material contained herein has been omitted and
has been separately filed with the Commission.]
11.03. Restrictions on Exercise of Rights. If either Eligible Initiating
Partner has initiated the Special Sale Rights, then during the pendency of such
Special Sale Rights, neither Eligible Initiating Partner shall have the right to
initiate any other Special Sale Rights.
SECTION XII
MISCELLANEOUS
12.01. Notices. (a) All notices, elections, consents, approvals, demands,
objections, requests or other communications permitted or required to be made
under this Agreement shall be in writing and sent by (i) first class U.S.
certified or registered mail, return receipt requested, with postage prepaid, or
(ii) hand delivery or reputable overnight courier (for next business day
delivery), or iii) confirmed facsimile transmission, with a duplicate copy being
simultaneously sent by the means specified in clause (i) or (ii) of this Section
12.01(a), addressed as follows:
- 62 -
If to the General Partner, to:
Liberty Property Philadelphia Corporation IV East
c/o Liberty Property Limited Partnership
500 Chesterfield Parkway
Great Valley Corporate Center
Malvern, PA 19355
Attention: James J. Bowes, Secretary and General Counsel
Telephone No.: 610-948-1715
Fax Number: 610-644-2175
with copies to:
Wolf, Block, Schorr and Solis-Cohen LLP
1650 Arch Street, 22nd Floor
Philadelphia, PA 19103-2097
Attention: Herman C. Fala
Telephone No.: 215-977-2076
Fax Number: 215-405-2976
If to the Investor A Limited Partner, to:
Liberty Property Philadelphia Corporation IV East
c/o Liberty Property Limited Partnership
500 Chesterfield Parkway
Great Valley Corporate Center
Malvern, PA 19355
Attention: James J. Bowes, Secretary and General Counsel
Telephone No.: 610-948-1715
Fax Number: 610-644-2175
with copies to:
Wolf, Block, Schorr and Solis-Cohen LLP
1650 Arch Street, 22nd Floor
Philadelphia, PA 19103-2097
Attention: Herman C. Fala
Telephone No.: 215-977-2076
Fax Number: 215-405-2976
- 63 -
If to the Investor B Limited Partner:
1701 JFK Boulevard Philadelphia, L.P.
c/o Commerz Immobilien GmbH
Mercedesstrsse 6
40470 Dusseldorf, Germany
Attention: Manfred Heiler
Telephone No.: 011-49211-7708-2401
Fax Number: 011-49211-7708-9401
with copies to:
[The confidential material contained herein has been omitted and has
been separately filed with the Commission.]
and to:
Dechert LLP
Cira Centre
2929 Arch Street
Philadelphia, PA 19104
Attention: Jay Zagoren
Telephone No.: 215-994-2644
Fax Number: 215-655-2644
(a) Any party may designate another addressee or change its address for
notices and other communications hereunder by a notice given to the other
parties in the manner provided in this Section 12.01. A notice or other
communication sent in compliance with the provisions of this Section 12.01 shall
be deemed given and received on the earlier of (i) the third (3rd) business day
following the date it is deposited in the mail, or (ii) the date it is delivered
to the recipient party (or the date such delivery is refused) if sent by hand
delivery or reputable overnight courier, or (iii) the first (1st) business day
after it is deposited with a reputable overnight courier; or (iv) the day of
successful transmission of all pages by facsimile, provided that such
transmission is confirmed by a printout from the sender's fax machine and
provided that transmission is complete prior to 5:00 P.M., Philadelphia time, on
a business day, and if such transmission is complete after such time or on a
non-business day, then such notice shall be effective as of the next succeeding
business day.
12.02. Successors and Assigns. Subject to the restrictions on Transfers
set forth herein, this Agreement and each and every provision hereof shall be
binding upon and shall inure to the benefit of the Partners, their respective
successors, successors-in-title, heirs and assigns, and each and every
successor-in-interest to any Partner, whether such successor acquires such
interest by way of gift, purchase, foreclosure, or by any other method, shall
hold such interest subject to all of the terms and provisions of this Agreement;
provided, however, that except as expressly permitted hereunder, none of the
Partners shall be entitled to assign any of its rights
- 64 -
under this Agreement to any third party, including, without limitation, any of
the constituent partners or members in such Partner.
12.03. Governing Law; Choice of Forum.
(a) This Agreement and the rights of the parties hereunder shall be
governed by and interpreted in accordance with the internal laws of the State of
Delaware, without reference to the rules regarding conflict or choice of laws of
such State.
(b) Each Partner hereby irrevocably and unconditionally (i) submits itself
and its property, solely for the purposes of any legal action or proceeding
relating to this Agreement or for recognition and enforcement of any judgment in
respect thereof, to the exclusive jurisdiction of the Supreme Court of the State
of Delaware, the Delaware Chancery Court, the courts of the United States of
America for the District of Delaware, and appellate courts thereof
(collectively, the "Delaware Courts"), (ii) consents to the bringing of any such
action or proceeding in an inconvenient court, and agrees not to plead or
otherwise assert the same, (iii) agrees to service upon it or him of any and all
process in any such action or proceeding at the address for such Partner set
forth in Section 12.01 hereof, (iv) agrees that nothing herein shall affect the
right to effect service of process in any other manner permitted by law, and (v)
agrees that a final judgment in any such action or proceeding shall be
conclusive (subject to rights of appeal) and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
The parties hereto agree that any legal action or proceeding relating to this
Agreement shall be brought in the Delaware Courts only; provided, however, that
if any Partner breaches or seeks to resist any term, covenant or condition set
forth in this Section 12.03(b) the other Partners shall not be bound by the
limitations of this sentence with respect to such Partner's breaching or seeking
to resist any term, covenant or condition of this Section 12.03(b).
12.04. No Waiver. The failure of any Partner to insist upon strict
performance of a covenant hereunder or of any obligation hereunder, irrespective
of the length of time for which such failure continues, shall not be a waiver of
such Partner's right to demand strict compliance in the future. No consent or
waiver, express or implied, to or of any breach or default in the performance of
any obligation hereunder, shall constitute a consent or waiver to or of any
other breach or default in the performance of the same or any other obligation
hereunder.
12.05. Entire Agreement. This Agreement together with the Schedules, the
Completion Guaranty, the NOI Support Agreement, the Master Agreement, and the
Management and Leasing Agreement hereto represents the entire agreement of the
parties with respect to the subject matter hereof and supersedes any and all
prior agreements, writings or understandings between the parties with respect to
the subject matter hereof. Except as otherwise expressly provided herein, no
amendment or modification to this Agreement shall be binding unless same shall
be in writing and signed by the Person against whom enforcement is sought.
- 65 -
12.06. Captions. Titles or captions of Sections contained in this
Agreement are inserted only as a matter of convenience and for reference, and in
no way define, limit, extend or describe the scope of this Agreement or the
intent of any provision hereof.
12.07. Counterparts. This Agreement may be executed in several
counterparts, all of which together shall for all purposes constitute one
Agreement, binding on all the Partners and the Partnership notwithstanding that
all the Partners and the Partnership have not signed the same counterpart.
12.08. Waivers. Except as otherwise expressly provided herein, each
Partner irrevocably waives during the term of the Partnership any right that it
may have:
(a) to cause the Partnership or any of its assets to be partitioned;
(b) to cause the appointment of a receiver for all or any portion of the
assets of the Partnership;
(c) to compel any sale of all or any portion of the assets of the
Partnership pursuant to applicable law; or
(d) to file a complaint, or to institute any proceeding at law or in
equity, or otherwise, to cause the termination, dissolution or liquidation of
the Partnership.
12.09. Interpretation.
(a) The singular includes the plural and the plural includes the singular.
(b) The word "or" is not exclusive and the word "including" is not
limiting.
(c) References to a law include any rule or regulation issued under the
law and any amendment to the law, rule or regulation.
(d) References to an Article, Section, Schedule mean an Article, Section,
Schedule contained in or attached to this Agreement.
(e) References to any decision-making authority of a General Partner or a
Limited Partner in this Agreement shall, unless expressly provided to the
contrary, be deemed to authorize it to make such decisions in its sole and
absolute discretion.
(f) The caption headings in this Agreement are for convenience and
reference only and do not define, modify or describe the scope or intent of any
of the terms of this Agreement.
- 66 -
12.10. Disclosure.
(a) Each of the Partners acknowledges and agrees that each Partner may
disclose the terms of this Agreement, the acquisition of the Property, the
Investor B Limited Partner's acquisition of partnership interests, and/or the
Mortgage Loan to third parties, including, without limitation, (i) in connection
with the offering of limited partner interests in the Investor B Limited Partner
for sale to investors pursuant to an Eligible Syndication or in connection with
the partnership administration of the Investor B Limited Partner, and (ii)
pursuant to any U.S. or non-U.S. governmental requirements (e.g., securities law
or prospectus law requirements), or in discussing with governmental officials
the applicability or potential applicability of tax, securities or other
governmental requirements to any aspects of the Partnership's acquisition of the
Property or the Mortgage Loan, including LPT filing this Agreement (and some or
all of the schedules) as an exhibit to a filing LPT may make with the Securities
and Exchange Commission (the "SEC") and to make disclosures regarding the
transactions provided for by this Agreement to the extent LPT reasonably
believes necessary to enable LPT to comply with securities laws and SEC
regulations, the rules of any stock exchange, or the requirements of any filing
or registration made by LPT as the issuer of publicly traded securities or as
part of information provided to its investors and/or financial analysts.
(b) No Partner shall issue any press releases in the United States
regarding the transactions contemplated hereby unless such release or
announcement first shall be reasonably approved, in writing, by the other
Partners.
12.11. Further Assurances. Each party covenants and agrees that it will at
any time and from time to time do, execute, acknowledge and deliver, or will
cause to be done, executed, acknowledged and delivered, all such further acts,
documents and instruments as may reasonably be required by the parties hereto in
order to carry out and effectuate fully the transactions herein contemplated in
accordance with this Agreement; provided, however, that no party shall be
obligated to provide any further assurance that would materially increase the
liabilities or obligations of such party hereunder or materially reduce the
rights and benefits of such party hereunder.
12.12. Right to Specific Performance. The failure or refusal by a Partner
to comply with any or all of the provisions of this Agreement shall entitle the
other Partners to specific performance of the terms, covenants and conditions of
this Agreement or any part hereof in addition to any and all other remedies
available to such Partners at law or in equity.
12.13. Relationship of Parties. The relationships between the parties
hereto shall be that of partners for the sole and limited purpose of carrying on
the business of the Partnership. Except as otherwise provided for in this
Agreement, nothing herein shall be deemed to create an agency, partnership,
limited liability company or other agreement, understanding or arrangement
between the Partners for the carrying on of business outside the scope of this
Agreement, nor shall any Partner have the ability to act as agent for any other
Partner.
- 67 -
12.14. No Third Party Rights. Except as expressly provided herein or in
the Act, this Agreement is for the sole benefit of the Partners and their
respective permitted successors and assignees, and shall not confer directly,
indirectly, contingently, or otherwise, any rights or benefits on any person or
party other than Partners and their permitted successors and assigns.
12.15. Usury. If any rate of interest or other charge otherwise payable
under this Agreement shall at any time exceed the maximum amount chargeable by
applicable law, then the applicable rate of interest shall be the maximum rate
permitted by applicable law.
12.16. Attorneys' Fees; Waiver of Jury Trial.
(a) In the event of any litigation between the Partners to enforce or
interpret any provision or right hereunder, the unsuccessful party to such
litigation covenants and agrees to pay the successful party all costs and
expenses reasonably incurred, including, without limitation, reasonable
attorneys' fees and disbursements, it being understood and agreed that the
determination of the "successful party" shall be included in the matters which
are the subject of such litigation.
(b) EACH PARTNER HEREBY WAIVES TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM BROUGHT BY ONE OR MORE OF THE PARTNERS AGAINST ONE OR MORE OTHER
PARTNERS IN CONNECTION WITH ANY MATTER WHATSOEVER ARISING OUT OF OR IN ANY WAY
CONNECTED WITH THIS AGREEMENT, THE RELATIONSHIP OF THE PARTNERS OR ANY CLAIM OF
INJURY OR DAMAGE RELATING TO ANY OF THE FOREGOING, OR THE ENFORCEMENT OF ANY
REMEDY UNDER ANY STATUTE WITH RESPECT THERETO.
12.17. Incorporation of Schedules. All schedules and appendices attached
and referred to in this Agreement are hereby incorporated herein as if fully set
forth in this Agreement.
12.18. Partner Estoppel Certificates. Upon the written request of a
Partner, the other Partners shall, within [The confidential material contained
herein has been omitted and has been separately filed with the Commission.]
calendar days of its receipt of such request, execute and deliver a written
statement certifying: (A) that this Agreement is unmodified and in full force
and effect (or, if modified, that this Agreement is in full force and effect as
modified and stating any and all modifications), (B) to the actual knowledge of
the certifying Partner, that such Partner is not in default hereunder, in each
case except as specified in such statement, (C) that to the actual knowledge of
the certifying Partner, no event has occurred which with the passage of time or
the giving of notice, or both, would ripen into a default hereunder, except as
specified in such statement, and (D) as to the then current balances of the
certifying Partner's accounts provided for herein. Such written statement may be
relied upon by a Partner's prospective purchasers, investors or lenders.
- 68 -
12.19. Construction. The Partners have each been represented by counsel of
their respective choice in connection with this Agreement, the terms of which
have been fully and fairly negotiated. The language in all parts of this
Agreement shall in all cases be construed simply according to the fair meaning
thereof and not strictly against the party which drafted such language.
12.20. Representations and Warranties. Each Partner hereby represents,
warrants and covenants to the other Partners (and each Person admitted to the
Partnership shall represent, warrant and covenant as a condition to its
admission) as follows:
(a) It is duly organized, validly existing and in good standing under the
laws of its jurisdiction of incorporation or formation, with all requisite power
and authority to enter into and perform this Agreement.
(b) This Agreement has been duly authorized, executed and delivered by
such Partner and constitutes the legal, valid and binding obligation of such
Partner, enforceable in accordance with its terms.
(c) No consents or approvals are required from any governmental authority
or other Person for such Partner to enter into this Agreement and form the
Partnership. All limited liability company, corporate or partnership action on
the part of such Partner necessary for the authorization, execution and delivery
of this Agreement, and the consummation of the transactions contemplated hereby,
have been duly taken.
(d) Neither the execution and delivery of this Agreement by such Partner,
nor the consummation of the transactions contemplated hereby, conflict with or
contravene the provisions of its organizational documents or any agreement or
instrument by which it is or its properties are bound, or any law, rule,
regulation, order or decree to which it or its properties are subject.
(e) On behalf of itself and each assignee or transferee of it, that such
Partner is acquiring its Partnership Interest for its own account for investment
and not with a view to the distribution or resale thereof, or with the present
intention of distributing or reselling such interest (it being the intention,
however, to offer limited partner interests in the Investor B Limited Partner
for sale to investors, none of which are United States Persons and none of which
are "employee benefit plans", as defined in ERISA, in Europe), and that it will
not transfer or attempt to transfer its Partnership Interest in violation of the
Securities Act of 1933, as amended, the Securities Exchange Act of 1934, as
amended, or any other applicable federal, state or local securities law. Nothing
herein shall be construed to create or impose on the Partnership or any Partner
an obligation to register any transfer of any Partnership Interest or any
portion thereof.
12.21. Broker. Each Partner represents and warrants to the other Partners
that, except as hereinafter expressly set forth, it has not dealt with any agent
or broker in connection with this Agreement. Each Partner covenants and agrees
to pay, indemnify, defend and hold the
- 69 -
Partnership and the other Partners harmless from and against any and all losses,
costs, liabilities, claims, damages or expenses (including, without limitation,
reasonable attorneys' fees and expenses) arising out of its breach of the
representation and warranty set forth in the immediately preceding sentence. The
obligations of each Partner under this Section 12.21 shall survive the
expiration or termination of this Agreement. The Investor A Limited Partner has
disclosed to the Investor B Limited Partner that it has retained [The
confidential material contained herein has been omitted and has been separately
filed with the Commission.] as its financial advisors in connection with the
transactions set forth in this Agreement. Any compensation due [The confidential
material contained herein has been omitted and has been separately filed with
the Commission.] with respect to the acquisition by the Investor B Limited
Partner of its interest in the Partnership (as opposed to compensation due [The
confidential material contained herein has been omitted and has been separately
filed with the Commission.] with respect to the placement of the Initial
Mortgage Loan) shall be paid by the Investor A Limited Partner, and the Investor
A Limited Partner shall indemnify and hold harmless the Partnership and the
Investor B Limited Partner from and against any claims by [The confidential
material contained herein has been omitted and has been separately filed with
the Commission.].
12.22. Legal Representation. Dechert LLP represented the Investor B
Limited Partner in the preparation and negotiation of this Agreement. Wolf Block
Schorr and Solis-Cohen LLP represented the General Partner and the Investor A
Limited Partner in the preparation and negotiation of this Agreement. Dechert
LLP and Wolf Block Schorr and Solis-Cohen LLP represented, and will continue to
represent, the Partnership in the preparation and negotiation of the documents
relating to the Initial Mortgage Loan and in other matters. Each of the Partners
hereby waives any right to object to the retention by the Partners or the
Partnership of Dechert LLP or Wolf Block Schorr and Solis-Cohen LLP to provide
legal services to any of the Partners or the Partnership in the future solely
due to their representation of the Partnership, the Investor B Limited Partner
or the General Partner and the Investor A Limited Partner (as the case may be).
SECTION XIII
CONSTRUCTION PROVISIONS
13.01. [The confidential material contained herein has been omitted and
has been separately filed with the Commission.]
13.02. [The confidential material contained herein has been omitted and
has been separately filed with the Commission.]
13.03. [The confidential material contained herein has been omitted and
has been separately filed with the Commission.]
- 70 -
IN WITNESS WHEREOF, the parties hereto have executed this Amended and
Restated Limited Partnership Agreement as of the date first above written.
GENERAL PARTNER:
LIBERTY PROPERTY PHILADELPHIA CORPORATION IV EAST,
a Pennsylvania corporation
By: /s/ William P. Hankowsky
--------------------------------------------
Name: William P. Hankowsky
Title: Chairman, President and CEO
By: /s/ George J. Alburger, Jr.
--------------------------------------------
Name: George J. Alburger, Jr.
Title: Executive Vice President
INVESTOR A LIMITED PARTNER:
LIBERTY PROPERTY LIMITED PARTNERSHIP, a
Pennsylvania limited partnership
By: Liberty Property Trust, its general partner
By: /s/ William P. Hankowsky
--------------------------------------------
Name: William P. Hankowsky
Title: Chairman, President and CEO
By: /s/ George J. Alburger, Jr.
--------------------------------------------
Name: George J. Alburger, Jr.
Title: Chief Financial Officer
[SIGNATURE PAGE 1 OF 2 -- AMENDED AND
RESTATED LIMITED PARTNERSHIP AGREEMENT]
INVESTOR B LIMITED PARTNER:
1701 JFK BOULEVARD PHILADELPHIA L.P., a Delaware
limited partnership
By: Commerz Realty Associates GP V, LLC, a
Delaware limited liability company, its
general partner
By: /s/ Laurent Rucker
--------------------------------------------
Name: Laurent Rucker
Title: Officer
By: /s/ Manfred Heiler
--------------------------------------------
Name: Manfred Heiler
Title: Member of the Board
[SIGNATURE PAGE 2 OF 2 -- AMENDED AND
RESTATED LIMITED PARTNERSHIP AGREEMENT]
SCHEDULE A
Description of Property
[The confidential material contained herein has been omitted and has been
separately filed with the Commission.]
SCHEDULE B
Partners[The confidential material contained herein has been omitted and has
been separately filed with the Commission.]
SCHEDULE C
List of Possible Arbiters
[The confidential material contained herein has been omitted and has been
separately filed with the Commission.]
SCHEDULE D
Loan Commitment Letter
[The confidential material contained herein has been omitted and has been
separately filed with the Commission.]
SCHEDULE E
Initial Approved Construction Budget
[The confidential material contained herein has been omitted and has been
separately filed with the Commission.]
SCHEDULE F
Development Timeline
[The confidential material contained herein has been omitted and has
been separately filed with the Commission.]
SCHEDULE G
Approved Leasing Guidelines
[The confidential material contained herein has been omitted and has
been separately filed with the Commission.]
SCHEDULE H
IRR Calculation
[The confidential material contained herein has been omitted and has been
separately filed with the Commission.]
SCHEDULE I
(a) Procedures for Appraisal of Partnership Interests under Section 9.01(n)
[The confidential material contained herein has been omitted and has been
separately filed with the Commission.]
SCHEDULE J
Management and Leasing Agreement
[The Confidential Material Contained Herein Has Been Omitted And Has
Been Separately Filed With The Commission.]
-82-
SCHEDULE K
Standard Lease Form
[The Confidential Material Contained Herein Has Been Omitted And Has
Been Separately Filed With The Commission.]
-83-
SCHEDULE L
Estimate of Partnership Closing Costs[THE CONFIDENTIAL MATERIAL CONTAINED
HEREIN HAS BEEN OMITTED AND HAS BEEN SEPARATELY FILED WITH THE
COMMISSION.]
-84-
SCHEDULE M
List of Approved Auditors
[THE CONFIDENTIAL MATERIAL CONTAINED HEREIN HAS BEEN OMITTED AND HAS
BEEN SEPARATELY FILED WITH THE COMMISSION.]
-85-
SCHEDULE N
CALCULATION OF INVESTOR B LIMITED PARTNER INITIAL CAPITAL CONTRIBUTION[THE
CONFIDENTIAL MATERIAL CONTAINED HEREIN HAS BEEN OMITTED AND HAS BEEN
SEPARATELY FILED WITH THE COMMISSION.]
-86-