Exhibit 3.2
SIXTH AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
RFS PARTNERSHIP, L.P.
THIS SIXTH AMENDED AND RESTATED AGREEMENT of Limited Partnership (the
"Agreement") of RFS PARTNERSHIP, L.P., a Tennessee limited partnership (the
"Partnership"), dated as of July 10, 2003, is entered into by and between CNL
ROSE GP CORP., a Delaware corporation, and CNL ROSE ACQUISITION CORP., a
Delaware corporation.
PRELIMINARY STATEMENTS
A. The sole General Partner and the sole Limited Partner desire to
terminate the current Fifth Amended and Restated Partnership Agreement, dated
January 2, 2001, by and among the Partnership and its partners; and
B. Whereas, the parties wish to provide for the harmonious management
of the Partnership pursuant to the terms hereof; and
C. All of the parties have agreed to set forth in writing the terms and
provisions of their agreement with respect to the Partnership.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree that, as of the date hereof, the Partnership
shall be governed by and operated pursuant to the terms of this Agreement as
hereinafter set forth.
ARTICLE 1
EXISTENCE AND NAME
------------------
1.1 TERMINATION OF FORMER PARTNERSHIP AGREEMENT. That certain Fifth
Amended and Restated Agreement of Limited Partnership of RFS Partnership, L.P.
is hereby terminated and shall be of no further force or effect.
1.2 EXISTENCE AND NAME. The Partnership was formed as a partnership
under and pursuant to the provisions of the Tennessee Revised Uniform Limited
Partnership Act, as amended from time to time (the "Act"), and shall be
conducted under the name of "RFS PARTNERSHIP, L.P." The rights and liabilities
of the Partners shall be as provided for in the Act if not otherwise expressly
provided for in this Agreement.
1.3 REGISTERED AGENT AND OFFICE. The registered office of the
Partnership shall be at 540 Gay Street, Knoxville, Tennessee 38120 and the
registered agent for service of process at such office shall be The CT
Corporation Service.
1.4 PARTNERS. The General Partner of the Partnership is CNL ROSE GP
CORP., a Delaware corporation (the "General Partner"), and the Limited Partner
of the Partnership is CNL ROSE ACQUISITION CORP., a Delaware corporation (the
"Limited Partner"). The General Partner and the Limited Partner are each
sometimes referred to herein as a "Partner" or together as the "Partners".
1.5 PARTNERSHIP PROPERTY. Legal title to all Partnership property and
assets shall be taken and at all times held in the name of the Partnership.
1.6 PRINCIPAL PLACE OF BUSINESS. The principal place of business of the
Partnership shall be 450 South Orange Avenue, Orlando, Florida 32801, telephone
(407) 650-1000, or such other location(s) as the General Partner in its
discretion shall determine.
ARTICLE 2
TERM
----
The Partnership shall continue in full force and effect until dissolved
as provided in Article 12 hereof or by law.
ARTICLE 3
PURPOSE OF BUSINESS
-------------------
The purpose of the Partnership shall be to do any and all things
reasonably incident thereto or in connection therewith.
ARTICLE 4
CAPITAL AND CAPITAL ACCOUNTS
----------------------------
A separate capital account (each, a "Capital Account") shall be
maintained for each Partner in accordance with the rules of Section
1.704-1(b)(2)(iv) of the U.S. Treasury Regulations (the "Treasury Regulations"),
and this Article 4 shall be interpreted and applied in a manner consistent with
said Section of the Treasury Regulations. The Partnership may adjust the Capital
Accounts of its Partners to reflect revaluations of the Partnership property
whenever the adjustment would be permitted under Treasury Regulations Section
1.704-1(b)(2)(iv)(f). In the event that the Capital Accounts of the Partners are
so adjusted, (i) the Capital Accounts of the Partners shall be adjusted in
accordance with Treasury Regulations Section 1.704-1 (b)(2)(iv)(g) for
allocations of depreciation, depletion, amortization and gain or loss, as
computed for book purposes, with respect to such property and (ii) the Partners'
distributive shares of depreciation, depletion, amortization and gain or loss,
as computed for tax purposes, with respect to such property shall be determined
so as to take account of the variation between the adjusted tax basis and book
value of such property in the same manner as under Section 704(c) of the Code
(defined below). In the event that Code Section 704(c) applies to Partnership
property, the Capital Accounts of the Partners shall be adjusted in accordance
with Treasury Regulations Section l.704.1(b)(2)(iv)(g) for allocations of
depreciation, depletion, amortization and gain and loss, as computed for book
purposes, with respect to such property. The Capital Accounts shall be
maintained for the sole purpose of allocating items of income, gain, loss and
deduction among the Partners and shall have no effect on the amount of any
distributions to any Partners in
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liquidation or otherwise. The amounts of all distributions to the Partners shall
be determined pursuant to Article 6.
The capital of each Partner is set forth on Schedule A ("Capital
Contributions"). No Partner shall be entitled, nor required, to make any
contributions to the capital of; or loans to, the Partnership. Except as
otherwise provided in this Agreement, whenever it is necessary to determine the
Capital Account of any Partner for any purpose hereunder, the Capital Account of
such Partner shall be determined after giving effect to all adjustments provided
for in Article 5 hereof for the current fiscal year of the Partnership which
shall be the calendar year ("Fiscal Year"), unless otherwise required by the
Internal Revenue Code of 1986, as amended from time to time (the "Code") in
respect of transactions effected prior to the date such determination is to be
made. No Partner shall be entitled to withdraw any part of its Capital Account,
or to receive any distribution from the Partnership except as specifically
provided in this Agreement.
ARTICLE 5
PROFITS AND LOSSES
------------------
All items of Partnership income, gain, loss and deduction as determined
for book purposes shall be allocated among the Partners and credited or debited
to their respective Capital Accounts in accordance with Treasury Regulations
Section 1.704-1(b)(2)(iv), so as to ensure to the maximum extent possible (i)
that such allocations satisfy the economic effect equivalence test of Treasury
Regulations Section 1.704-i (b)(2)(ii)(j) (as provided hereinafter) and (ii)
that all allocations of items that cannot have economic effect (including
credits and nonrecourse deductions) are allocated to the Partners in accordance
with their interests in the Partnership, which, unless otherwise required by
Code Section 704(b) and the Treasury Regulations promulgated thereunder, shall
be in proportion to their Percentage Interests (as defined below). To the extent
possible, items that can have economic effect shall be allocated in such a
manner that the balance of each Partners' Capital Account at the end of any
taxable year (increased by the sum of (a) such Partners "share of partnership
minimum gain" as defined in Treasury Regulations Section 1.704-2(g)(i) and (b)
such Partners' share of "partner nonrecourse debt minimum gain" as defined in
Treasury Regulations Section 1.704-2(i)(5)) would be positive to the extent of
the amount of cash that such would receive (or would be negative to the extent
of the amount of cash that such would be required to contribute to the
Partnership) if the Partnership sold all of its property for an amount of cash
equal to the book value (as determined pursuant to Treasury Regulations Section
1.704-1 (b)(2)(iv)) of such property (reduced, but not below zero, by the amount
of nonrecourse debt to which such property is subject) and all of the cash of
the Partnership remaining after payment of all liabilities (other than
nonrecourse liabilities) of the Partnership were distributed in liquidation
immediately following the end of such taxable year in accordance with Article 6.
For purposes of the foregoing the General Partner's percentage interest
shall be one-tenths percent (0.10%) and the Limited Partner's percentage
interest shall be ninety nine and nine tenths percent (99.90%).
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ARTICLE 6
DISTRIBUTIONS
-------------
6.1 NET CASH FLOW. Distributions of the Partnership's cash shall be
distributed one-tenths percent (0.1 0%) to the General Partner and ninety nine
and nine tenths percent (99.90%) to the Limited Partner.
6.2 PROCEEDS AVAILABLE UPON DISSOLUTION. Upon the dissolution and
winding up of the Partnership, the proceeds from the sale of the Partnership's
assets, after (i) making payment of or provision for payment of all liabilities
and obligations of the Partnership and (ii) the setting up of such reserves as
the person required by law to wind up the Partnership's affairs may reasonably
deem necessary for any contingent liabilities or obligations of the Partnership
shall be distributed, as expeditiously as possible, one-tenths percent (0.10%)
to the General Partner and ninety nine and nine tenths percent (99.90%) to the
Limited Partner.
ARTICLE 7
MANAGEMENT OF PARTNERSHIP
-------------------------
RIGHTS AND POWERS OF THE GENERAL PARTNER. The General Partner shall
have the exclusive right to manage the business of; and conduct the day-to-day
operations of, the Partnership and is hereby authorized to take any action of
any kind and to do anything and everything it deems necessary in conjunction
therewith including engaging in any kind of activity and performing and carry
out contracts of any kind necessary to, in connection with or incidental to the
accomplishment of the purposes of the Partnership, as may be lawfully carried on
or performed by a partnership under the laws of Tennessee.
ARTICLE 8
RIGHTS AND LIABILITIES OF THE LIMITED PARTNER
---------------------------------------------
8.1 NO RIGHT TO MANAGE OR REPRESENT PARTNERSHIP. The Limited Partner
shall not take part in the management of the business of the Partnership,
transact any business for the Partnership, or have the power to sign for or to
bind the Partnership to any agreement or documents, said powers being vested
solely and exclusively in the General Partner.
8.2 LIMITATIONS ON LIABILITY. The Limited Partner shall not have any
personal liability whatsoever, whether to the Partnership, to any of the
Partners, or to the creditors of the Partnership, for the debts of the
Partnership or for any of the losses of the Partnership except for (i) the
amount committed by it to the capital of the Partnership as set forth on
Schedule A hereto and (ii) for the amount of any distributions required to be
returned to the Partnership in accordance with the provisions of the Act.
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ARTICLE 9
WITHDRAWAL, BANKRUPTCY, INSOLVENCY
OR DISSOLUTION OF THE GENERAL PARTNER
-------------------------------------
9.1 WITHDRAWAL OF A GENERAL PARTNER. The General Partner may not
withdraw as a General Partner.
9.2 TERMINATED GENERAL PARTNER. Upon the adjudication of bankruptcy,
insolvency or dissolution of the General Partner, the Partnership shall be
dissolved and its business wound up in accordance with Article 12 hereof.
ARTICLE 10
TRANSFER OF PARTNERSHIP INTERESTS
---------------------------------
No assignment, transfer, sale, hypothecation, mortgage, pledge or
encumbrance, directly, indirectly, by operation of law or otherwise, of all or
any portion of the Limited Partner's right, title and interest in the
Partnership, including its rights to a return of its Capital Contributions, a
distribution of the Partnership's property and all other rights under this
Agreement, shall be permitted without the consent of the General Partner, which
consent may be withheld by the General Partner in its sole and absolute
discretion.
ARTICLE 11
LIABILITY AND INDEMNIFICATION
-----------------------------
11.1 LIABILITY OF GENERAL PARTNER. The General Partner and its
officers, directors, partners, employees, agents, affiliates, successors or
assigns shall not be liable to the Partnership or the Limited Partners for any
loss or damage incurred by reason of any act performed or omitted in connection
with the activities of the Partnership or in dealing with third parties on
behalf of the Partnership, if such act or omission was determined, in good
faith, to be in the best interests of the Partnership and if such act or
omission does not constitute fraud, gross negligence or breach of fiduciary duty
or constitute a breach of this Agreement.
11.2 INDEMNIFICATION OF GENERAL PARTNER. The Partnership, its receiver
or its trustee, shall indemnify, save harmless and pay all judgments and claims
against the General Partner and its officers, directors, partners, employees,
agents, affiliates, successors and assigns, for any liability, loss or damage
incurred by them or by the Partnership by reason of any act performed or omitted
to be performed in connection with the activities of the Partnership or in
dealing with third parties on behalf of the Partnership, including costs and
attorneys' fees (which attorneys' fees may be paid as incurred) and any amounts
expended in the settlement of any claims of liability, loss or damage provided
that the act or omission of the General Partner was determined, in good faith,
to be in the best interests of the Partnership and does not constitute fraud,
gross negligence, breach of fiduciary duty or breach of this Agreement by the
General Partner and provided further that any such indemnification shall be
recoverable only from assets of the Partnership and not from the assets of any
Limited Partner. The Partnership shall not pay for any
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insurance covering liability of the General Partner or of its officers,
directors, partners, employees, agents, affiliates, successors and assigns for
actions or omissions for which indemnification is not permitted hereunder;
provided, that nothing contained herein shall preclude the Partnership from
purchasing and paying for such types of insurance, including extended coverage
liability and casualty and worker's compensation, as would be customary for any
person owning comparable property and engaged in a similar business or from
naming the General Partner and any of its affiliates as additional insured
parties thereunder.
11.3 CONTRACTUAL PROVISIONS. The General Partner shall have the right
and authority to require a provision in all Partnership contracts that it not be
personally liable thereon and that the person or entity contracting with the
Partnership is to look solely to the Partnership and its assets for
satisfaction.
11.4 INDEMNIFICATION OF LIMITED PARTNER. The Partnership will
indemnify, to the extent of Partnership assets, the Limited Partner against any
claim of liability asserted against a Limited Partner (i) because it is a
Limited Partner of the Partnership or (ii) arising from or in connection with
the Partnership.
ARTICLE 12
DISSOLUTION AND TERMINATION
---------------------------
12.1 DISSOLUTION. The Partnership shall be dissolved and its business wound
up, upon the earliest to occur of:
(a) The date of disposition of all, or substantially all, of
the assets of the Partnership;
(b) The date of adjudication of bankruptcy, insolvency or
dissolution of the General Partner, or
(c) Such other date as is determined by the General Partner in
its sole and absolute discretion.
12.2 WINDUP. Upon dissolution of the Partnership, and after payment of
all of the debts, liabilities and obligations of the Partnership and the
expenses of dissolution and liquidation and the setting up of any reserves for
contingencies that the General Partner deems necessary, distributions in
liquidation of the Partnership shall be made in the manner set forth in Section
6.2.
12.3 TERMINATION AND CANCELLATION. Upon completion of the liquidation
of the Partnership, the Partnership shall terminate and the General Partner
shall have the authority to execute and record a certificate of cancellation of
the Partnership, as well as any and all other documents required to effectuate
the dissolution and termination of the Partnership.
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ARTICLE 13
NOTICES
-------
All notices required or permitted by this Agreement shall be in writing
and shall be delivered by hand, sent by registered or certified mail, return
receipt requested, by a recognized overnight courier (such as Federal Express)
or sent by confirmed facsimile transmission addressed as set forth on Schedule A
or to such other address as shall, from time to time, be supplied in writing by
such Partner. Notices personally delivered, sent by facsimile or sent by
overnight courier shall be deemed given on the date of delivery and notices
mailed in accordance with the foregoing shall be deemed given upon the earlier
of receipt by the addressees, as evidenced by the return receipt thereof, or
three (3) days after deposit in the U.S. Mails.
ARTICLE 14
ACCOUNTING, REPORTING AND STATEMENTS
------------------------------------
PARTNERSHIP RECORDS AND TAX RETURNS. The General Partner shall keep, or
cause to be kept, full and accurate records of all transactions of the
Partnership. The General Partner shall keep the financial records of the
Partnership on the cash basis for financial statement and tax purposes unless
otherwise required by the Code. The Limited Partner and its designated
representative shall be permitted access during reasonable business hours to all
records of the Partnership at the principal office of the Partnership and they
shall have the right to make copies thereof. Within ninety 90 days after the end
of each fiscal year of the Partnership, the General Partner, at the expense of
the Partnership, shall cause to be prepared by the accountants auditing the
Partnership's financial statements, a U.S. partnership return of income for the
Partnership; and, in connection therewith, shall make any available or necessary
elections (including elections with respect to the useful lives of the assets of
the Partnership and the rates on such assets). Within such ninety (90) days
period, the Partnership will furnish to the Limited Partner information required
to be set forth in such Partner's Federal income tax return.
ARTICLE 15
MISCELLANEOUS
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15.1 SUCCESSORS. This Agreement shall be binding upon the parties
hereto, their heirs, administrators, successors, executors and assigns, and the
parties hereto covenant and agree that they themselves and their respective
heirs, executors, successors, administrators, trustees, representatives and
assigns will execute any and all instruments, releases, assignments and consents
that may be reasonably required of them to more fully execute the provisions of
this Agreement.
15.2 COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall serve as an original for all purposes, but all
copies of which shall constitute but one and the same Agreement.
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15.3 GOVERNING LAW; JURISDICTION; VENUE. This Agreement shall be
governed by and shall be construed and enforced in accordance with the laws of
the State of New York. The parties hereto agree to submit themselves to the
jurisdiction of the state and federal courts in the State of Florida in
connection with any claims or controversy arising out of this Agreement and that
venue for any such actions or proceedings may be laid in Orange County, Florida,
and each party waives any claim that the same is an inconvenient forum.
15.4 PRONOUNS AND PLURALS, HEADINGS. Whenever the context may require,
any pronoun used in this Agreement shall include the corresponding masculine,
feminine or neuter forms, and the singular forms of nouns, pronouns and verbs
shall include the plural and vice versa and the word "person" shall include a
corporation or other form of association or entity. All headings set forth in
this Agreement are intended for convenience only and shall not control or affect
the meaning, construction or effect of this Agreement or of any of the
provisions thereof.
15.5 ENTIRE AGREEMENT; AMENDMENTS. This Agreement constitutes the
entire agreement of the parties hereto with respect to the transactions
contemplated hereby, and it is hereby agreed that any prior oral or written
agreements concerning the subject matter hereof shall be null and void. This
Agreement shall not be amended without the prior written approval of the General
Partner.
15.6 WAIVER AND SEVERABILITY. The waiver by any party hereto of a
breach of any provision of this Agreement shall not operate or be construed as a
waiver of any subsequent breach by any party. The invalidity of any one or more
of the words, phrases, sentences, clauses or sections contained in this
Agreement shall not affect the enforceability of the remaining portions of this
Agreement or any part thereof, all of which are inserted conditionally on their
being valid in law, and, in the event that any one or more of the words,
phrases, sentences, clauses or sections contained in this Agreement shall be
declared invalid, this Agreement shall be construed as if such invalid word or
words, phrase or phrases, sentence or sentences, clause or clauses, or section
or sections had not been inserted.
15.7 DAMAGES. Nothing contained herein shall be construed to prevent
any party hereto from seeking and recovering from any other party or parties,
damages sustained as a result of a breach of any term or provision of this
Agreement. In the event that any party hereto brings suit for the collection of
any damages resulting from, or the injunction of any action constituting, a
breach of any of the terms or provisions of this Agreement, then the party or
parties found to be at fault shall pay all reasonable court costs and attorneys'
fees of the nondefaulting parties.
SIGNATURES ON FOLLOWING PAGE
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement of
Limited Partnership as of the day and year first above written.
GENERAL PARTNER:
CNL ROSE GP CORP.
By: /s/ Marcel Verbaas
------------------------------------------
Name: Marcel Verbaas
Title: Senior Vice President
LIMITED PARTNER:
CNL ROSE ACQUISITION CORP.
By: /s/ Marcel Verbaas
------------------------------------------
Name: Marcel Verbaas
Title: Senior Vice President
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SCHEDULE A
PARTNERS
Initial
Name and Address Capital Contribution
---------------- --------------------
GENERAL PARTNER: [$0.10]
CNL Rose GP Corp.
450 South Orange Avenue
Orlando, FL 32801
LIMITED PARTNER: [$99.90]
CNL Rose Acquisition Corp.
450 South Orange Avenue
Orlando, FL 32801