Exhibit 3.36
Limited Partnership Agreement of FR Sadsbury Property Holding, LP, dated as of
August 10, 2004, by and between FR Sadsbury General
Partner, LP and FR Sadsbury, LLC.
LIMITED PARTNERSHIP AGREEMENT
OF
FR SADSBURY PROPERTY HOLDING, LP
THIS LIMITED PARTNERSHIP AGREEMENT of FR Sadsbury Property Holding, LP, a
Delaware limited partnership (the "Partnership"), is made as of the 10th day of
August, 2004, by and between FR Sadsbury General Partner, LP, a Delaware limited
partnership, as general partner (the "General Partner"), and FR Sadsbury, LLC, a
Delaware limited liability company, as limited partner (the "Limited Partner").
NOW, THEREFORE, intending to be legally bound hererby, and in consideration
of the mutual promises and covenants contained herein, the parties hereto agree
as follows:
ARTICLE I
CERTAIN DEFINITIONS
For purposes of this Agreement, and in addition to capitalized terms
defined elsewhere in this Agreement, the following terms shall have the meanings
ascribed below:
"Act" means the Delaware Revised Uniform Limited Partnership Act, as
amended from time to time.
"Affiliate" means, with respect to any referenced Person, (i) a member of
such Person's immediate family; and (ii) any Person directly or indirectly
controlling, controlled by, or under direct or indirect common control with the
Person in question. As used herein, "control" shall mean the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of a Person, whether through the ownership of voting
securities, by contract, or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agreement" means this Limited Partnership Agreement of FR Sadsbury
Property Holding, LP, including all Exhibits hereto, as amended from time to
time.
"Available Cash Flow" means such portion of the cash in hand or in bank
accounts of the Partnership as is determined by the General Partner to be
available for distribution to the Partners after payment of the current
liabilities, obligations and expenses of the Partnership, and after reasonable
provision has been made for reasonably required reserves.
"Code" means the Internal Revenue Code of 1986, as amended, including
corresponding provisions of succeeding law.
"Limited Partner" means a Person admitted to the Partnership as a limited
partner and "Limited Partners" means all Persons admitted to the Partnership as
limited partners.
"Partner" or "Partners," means, individually, a General Partner or a
Limited Partner, and collectively, the General Partner and all the Limited
Partners, including Persons admitted to the Partnership after the date hereof in
accordance with the terms hereof.
"Percentage Interests" means the relative percentages allocated to the
Partners as set forth on Exhibit A hereto, as the same may be amended from time
to time in accordance with this Agreement.
"Person" means any individual, corporation, partnership, trust, limited
liability company or other organization or entity.
"Real Property" means certain parcels of real estate, including the lands,
buildings and other improvements now located or hereafter constructed thereon,
consisting of approximately 28 acres with all easements and other rights
benefiting such ground and all improvements thereon, if any, situate in Sadsbury
Township, Chester County, Pennsylvania.
"Regulations" means the Income Tax Regulations promulgated under the Code,
as such regulations may be amended from time to time.
ARTICLE II
GENERAL
2.1 Formation of Partnership.
2.1.1 The Partnership was formed as a limited partnership pursuant to
the Act by the filing of the certificate of limited partnership with the Office
of the Secretary of State of the State of Delaware on October 14, 2003. Except
as modified by this Agreement, the Partnership shall be governed by the Act.
2.1.2 The General Partner shall execute such other documents and
perform such other acts as shall constitute compliance with all requirements for
the formation and operation of the Partnership pursuant to the Act and to
qualify to do business in the Commonwealth of Pennsylvania and any other
jurisdiction in which the Partnership conducts business.
2.2 Name of Partnership. The name of the Partnership is FR Sadsbury
Property Holding, LP, or such other name as the General Partner may from time to
time determine, subject to the requirements of the Act and other applicable law.
2.3 Registered Office and Registered Agent. The initial registered agent
and registered office of the Partnership shall be ATA Corporate Services, Inc.,
Suite 1200, 222 Delaware Avenue, Wilmington, Delaware. The registered agent and
registered office of the Partnership may be changed from time to time in the
discretion of the General Partner, subject to the requirements of the Act. The
business of the Partnership may be conducted at such office or offices as the
General Partner may determine from time to time.
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2.4 Purpose. Notwithstanding any provision hereof or of any other document
governing the formation, management or operation of the Partnership to the
contrary, the nature of the business and of the purposes to be conducted and
promoted by the Partnership is to engage solely in the following activities:
2.4.1 To acquire, construct, own, hold, operate, maintain, lease,
manage, mortgage, assign, pledge, finance and dispose of the Real Property;
2.4.2 To engage in any activity, to enter into, perform and carry out
any agreement, undertaking, contract, lease, indenture, mortgage, deed of trust
assignment of lease, security agreement, or financing statement of any kind, and
to borrow money and issue evidences of indebtedness, whether or not secured by
liens, in connection with the foregoing purpose;
2.4.3 To engage in and conduct such other activities directly related
to the foregoing purpose as may be necessary, advisable, or appropriate, in the
reasonable opinion of the General Partner to further the foregoing purpose; and
2.4.4 To exercise any powers permitted under the Act which are
incidental to the foregoing or necessary or appropriate to accomplish the
foregoing.
The Partnership shall not engage in any business or activity other than as
permitted in this Section 2.4.
2.5 Term. The Partnership shall continue until dissolved pursuant to
Article IX. Dissolution of the Partnership shall occur only upon the occurrence
of one of an event specified in Article IX.
2.6 Tax Status. It is intended that, for federal income tax purposes, the
Partnership will be treated as a disregarded entity as long as it is deemed to
have only a single partner for federal income tax purposes, or as a partnership
if it is deemed to have more than a single partner for federal income tax
purposes. No election shall be made under the Regulations to treat the
Partnership as a corporation for federal income tax purposes unless all of the
Partners unanimously consent to the filing of such an election.
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ARTICLE III
CAPITAL CONTRIBUTIONS
3.1 Contributions.
3.1.1 Each Partner shall contribute the cash or property set forth
opposite the name of such Partner on Exhibit A to the capital of the
Partnership.
3.1.2 Additional capital contributions shall be made as unanimously
agreed by the Partners, but no Partner shall be obligated to contribute any
additional capital to the Partnership, whether upon the liquidation of the
Partnership or otherwise. No Partner shall be obligated to restore the deficit
balance in its capital account in the Partnership.
3.2 No Withdrawals. No Partner shall have the right to withdraw or
reduce his contribution of capital to the Partnership. The General Partner shall
have no personal liability for repayment of the capital contributions of the
Limited Partner.
ARTICLE IV
DISTRIBUTIONS
4.1 Available Cash Flow. Available Cash Flow, as determined by the General
Partner, shall be distributed to the Partners in proportion to their Percentage
Interests on an annual or more frequent basis as determined by the General
Partner.
4.2 Liquidation. Notwithstanding anything in this Agreement to the
contrary, upon the liquidating and winding up of the Partnership, distributions
to the Partners shall be made as set forth in Section 9.4.1 below.
ARTICLE V
ALLOCATIONS
5.l General. If the Partnership is ever considered a partnership for
federal income tax purposes (rather than a disregarded entity), then, except as
otherwise required under section 704(b) of the Code or the Regulations
promulgated thereunder, all income, gain, loss, deduction and credit of the
Partnership shall be allocated to the Partners in proportion to their respective
Percentage Interests.
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ARTICLE VI
MANAGEMENT
6.1 General. The General Partner shall have the full and exclusive power on
the Partnership's behalf, and in its name, to manage, control, administer and
operate the business and affairs of the Partnership and to do or cause to be
done anything it deems necessary or appropriate to carry out the purposes of the
Partnership, as set forth in Section 2.4 above. Without limiting the generality
of the foregoing, the General Partner shall have the authority to make all
decisions regarding development, construction, lease, sale, exchange, retention,
financing or refinancing of any assets held by the partnership and whether the
proceeds realized from any sale, financing or similar transaction shall be
reinvested by the Partnership, used to pay Partnership obligations or
distributed to the Partners.
6.2 Compensation of the General Partners; Dealings with Affiliates.
6.2.1 The General Partner shall be entitled to receive reasonable
management fees for serving as General Partner hereunder, provided, however,
that such fees are no greater than would be paid to an unrelated party
performing comparable management services pursuant to an agreement negotiated at
arm's-length.
6.2.2 All reasonable costs and expenses paid to third parties and
incurred in connection with the business and affairs of the Partnership,
including without limitation, ail legal, accounting and travel expenses, shall
be Partnership expenses, and the General Partner and its Affiliates shall be
entitled to reimbursement to the extent they pay any such expenses.
6.2.3 The General Partner shall be authorized to cause the Partnership
to obtain management services or other services from Affiliates of some or all
of the Partners. The Partnership shall be responsible for a reasonable portion
of office and overhead expenses with respect to office space that the
Partnership shares with Affiliates of some or all of the Partners.
6.3 Other Interests of Partners. The General Partner shall devote to the
Partnership such time as reasonably may be required to manage the business and
affairs of the Partnership. In view of the exclusive and limited purposes of the
Partnership, no Partner, or any Affiliate of any Partner, shall have any
obligation to make any other investment or business opportunity available to the
Partnership or to any of its Partners. It is further expressly agreed mat any
Partner and/or its Affiliates may engage in and possess interests in other
businesses and ventures of every nature and description, independently or with
others, and any such engagement will not constitute a breach of the Partners'
fiduciary duties to the Partnership, and neither the Partnership nor any Partner
shall have any rights by virtue of this Agreement or the existence of this
Partnership in and to such independent ventures or to the income or profits
derived therefrom.
6.4 limitations on limited Partners. Except as otherwise expressly set
forth herein, the Limited Partners (in such capacity) shall in no event (i) be
permitted to take part in the control of the business or affairs of the
Partnership; or (ii) have the authority or power, in the
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capacity of a limited Partner, to act as agent for or on behalf of the
Partnership or any other Partner to do any act which would be binding on the
Partnership or any other Partner, including without limitation the incurring of
any expenditures on behalf of the Partnership.
6.5 liability of limited Partners. The limited Partner shall in no event be
liable personally for any of the debts or losses of the Partnership or of the
General Partner beyond the aggregate amount of agreed upon contributions to the
capital of the Partnership as provided in Article III.
6.6 Loans from or to Affiliates. Subject to any restrictions or limitations
contained in this Agreement, the Partnership shall be authorized (i) to borrow
funds from Affilates of the Partnership or the Partners to the extent that
capital contributions made by the Partners and the proceeds of third party
borrowings shall not be sufficient to acquire and improve the Real Property, or
to make debt payments due to third parties, and (ii) to lend funds not required
by the Partnership to Affiliates of the Partnership and the General Partner,
provided such loans provide for commercially reasonable interest or are approved
by the General Partners and the Limited Partner.
6.7 Additional Limitations and Covenants. Notwithstanding any provision
hereof or of any other document governing the formation, management or operation
of the Partnership to the contrary, and in addition to the other provisions set
forth in this Agreement, in order to preserve and ensure the separate and
distinct identity of the Partnership, the Partnership shall conduct its affairs
in accordance with the following provisions:
6.7.1 The Partnership shall operate its business separate and apart
from that of any of its Affiliates.
6.7.2 The Partnership shall maintain partnership records and books of
account separate from those of any Affiliate of the Partnership.
6.7.3 The Partnership shall conduct its own business in its own name.
6.7.4 The Partnership shall hold itself out as an entity separate from
any Affiliate.
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ARTICLE VII
FISCAL MATTERS
7.1 Partnership Books; Access to Information.
7.1.1 The Partnership shall maintain at its principal office (as the
same may be designated by the General Partner from time to time), full and
accurate books of the Partnership, which shall fully reflect each of its
transactions, including the cash distributions and allocations provided for in
Articles IV and V, and all other records necessary for recording the
Partnership's business or required to be maintained at such office(s) under the
Act or under any other applicable law.
7.1.2 Daring regular business hours and upon reasonable notice, each
Partner and its duly authorized representatives shall have access to and may
inspect and copy any of such books and records.
7.2 Tax Returns and Financial Statements. The General Partner shall cause
any necessary federal, state and local income tax returns and reports required
of the Partnership to be prepared and timely filed. The Partners agree that in
preparing and filing their tax returns they will report all tax items relating
to the Partnership in a manner consistent with the reporting of such items on
the Partnership's tax returns and reports.
7.3 Accounting and Tax Decisions. All decisions as to accounting and tax
matters Shall be made by the General Partner. The General Partner may rely upon
the advice of the Partnership's counsel or accountants as to the appropriate
accounting and tax decisions. The General Partner may elect to treat certain
items differently for accounting purposes than the manner in which such items
are treated for tax purposes.
7.4 Bank Accounts. The General Partner shall be responsible for causing one
or more bank accounts to be maintained in the Partnership's name into which all
funds of the Partnership shall be deposited and from which payment of all
Partnership business expenditures shall be made. Notwithstanding the foregoing,
funds of the Partnership may be held in one or more accounts maintained by
Affiliates of the Partnership or its Partners, provided that an accurate
accounting of deposits and withdrawals on behalf of the Partnership is
maintained.
ARTICLE VIII
ASSIGNABILITY OF PARTNER'S INTERESTS
8.1 Permitted Transfers. General or limited partnership interests in
the Partnership may be transferred only with the unanimous written consent of
the Partners.
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ARTICLE IX
DISSOLUTION AND TERMINATION
9.1 Liquidating Events.
9.1.1 The Partnership shall dissolve and commence winding up and
liquidating upon the first to occur of any of the following ("Liquidating
Events"):
(i) The dissolution, winding up and liquidation of the
Partnership is approved by uanimous consent of the Partners;
(ii) A sale of all or substantially all of the assets of the
Partnership and the collection of the proceeds from such sale;
(iii) An event of withdrawal, as defined in Section 17-402 of the
Act (or any successor provision), occurs with respect to the General
Partner (unless there is at least one remaining General Partner, in which
case the remaining General Partner(s) shall be authorized to continue the
Partnership); provided, however, that the Partnership shall not be
dissolved upon the withdrawal of the last remaining General Partner if,
within 90 days after such withdrawal, a majority in interest of the
remaining Partners agree in writing to continue the business of the
Partnership and to the appointment of one or more replacement general
partners;
(iv) The happening of any other event that makes it unlawful or
impossible to carry on the business of the Partnership; or
(v) In any event, at 11:59 p.m. on December 31, 2103.
9.1.2 The Partners hereby agree that, notwithstanding any provision of
the Act, the Partnership shall not dissolve prior to the occurrence of a
Liquidating Event. If it is determined by a court of competent jurisdiction that
the Partnership has dissolved prior to the occurrence of a liquidating Event,
the Partners hereby agree to continue the business of the Partnership without a
winding up or liquidation.
9.2 Dissolution, Winding Up and Termination. Upon the occurrence of a
liquidating Event, the General Partner shall have the full power and authority
to proceed with the liquidation of the Partnership and to take all steps which
they may deem necessary or desirable to wind up the Partnership's affairs,
having for such purpose all the powers referred to and provided for in Article
VI appropriate to accomplish the same and allowing for a reasonable time in
order to minimize losses attendant to the liquidation, so that the Partnership
may be terminated in accordance with the Act. In the event that there is no
General Partner, the limited Partner may designate one or more Partners or a
non-Partner or both to proceed with the liquidation of the Partnership's assets
and the termination of the Partnership. In the event that a liquidator is
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designated pursuant to the preceding sentence, hereinafter in this Article all
references to the General Partner shall be deemed to refer to such liquidator.
9.3 Final Accounting. Upon such dissolution, an accounting shall be
prepared and furnished to each Partner to cover the period from the date of the
last previous accounting to the date of such dissolution. Upon completion or
distribution in accordance with Section 9.4, a further statement for the period
of dissolution shall be so prepared and furnished.
9.4 Distributions Upon Winding Up and Termination.
9.4.1 The proceeds from all assets of the Partnership upon its winding
up and termination shall be distributed and applied in the following order of
priority, with no distribution being made in any category being set forth below
until each preceding category has been satisfied in full:
(i) Payment of debts and liabilities of the Partnership (other
than amounts owing to Partners) and the expenses of liquidation; provided
however, that loans guaranteed by Partners or their Affiliates shall not be
considered as being made by such Partners, and provided further that the
General Partner shall have the right to designate the order in which
specific liabilities are to be satisfied out of Partnership assets, to the
extent permitted with reference to the order provided by law, in order to
minimize the risk of personal liability on the part of any Partner(s),
including the General Partner and its Affiliates.
(ii) Establishment of reserves deemed reasonably necessary to
cover contingent or unforeseen liabilities or obligations of the
Partnership or the General Partner arising out of or in connection with the
Partnership. These reserves may be held by the Partnership or paid over to
an attorney-in-law or a bank or trust company to be held in escrow for the
purpose of paying any such contingent or unforeseen liabilities or
obligations and at the expiration of such period as the General Partners
shall deem advisable, any then remaining balance shall be distributed as
the General Partner shall direct but in accordance with the order of
priority set forth below.
(iii) Repayment of all loans owing to the Partners, including
accrued but unpaid interest thereon.
(iv) To the Partners in proportion to their Percentage Interests.
9.4.2 Notwithstanding anything to the contrary in the Act or any other
statute or rule of law, no Partner shall have any right of priority over any
other Partner with respect to repayment of loans and advances or otherwise in
the application and distribution of the assets of the Partnership upon
dissolution as provided herein.
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ARTICLE X
MISCELLANEOUS
10.1 Successors and Assigns. This Agreement shall be binding upon and shall
inure to the benefit of the Partners, their respective successors and assigns.
Each and every successor to any Partner, whether such successor acquires its
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.
10.2 Amendment. This Agreement may only be amended upon the unanimous
approval of the Partners.
10.3 No Third Party Beneficiaries. None of the provisions of this Agreement
are intended to benefit, and none shall inure to the benefit of or be
enforceable by, any creditors of the Partnership or any other third parties.
10.4 Entire Agreement. This Agreement contains the entire agreement between
the Partners and supersedes all prior understandings and agreements between them
concerning the subject matter hereof. No representations, warranties, conditions
or agreements pertaining to the subject matter of this Agreement have been made
by, or shall be binding upon, any of the Partners, except as expressly set forth
in this herein.
10.5 Captions. Titles or captions of articles and 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 thereof.
10.6 Number and Gender. All pronouns used herein shall be deemed to refer
to the masculine, feminine, neuter, singular or plural as the identity of the
Person or Persons may require in the context, and the singular form of nouns,
pronouns and verbs shall include the plural, and vice versa, whichever the
context may require.
10.7 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be an original for all purposes, but all of
which taken together shall constitute only one agreement. This Agreement shall
become binding when one or more counterparts hereof, individually or taken
together, shall bear the signatures of all of the parties reflected hereon as
the signatories.
10.8 Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware.
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IN WITNESS WHEREOF, and intending to be legally bound hereby, the parties
hereto have caused this Agreement to be duly executed under seal as of the day
and year first above written.
GENERAL PARTNER:
FR SADSBURY GENERAL PARTNER, LP
By: FR Sadsbury Second, LLC,
its general partner
By: FR Sadsbury, LLC,
its sole member
By: First Industrial Development
Services, Inc., its sole member
By: /s/ Illegible
------------------------------------
Name: Illegible
Title: Authorized Signatory
LIMITED PARTNER:
FR SADSBURY, LLC
By: First Industrial Development
Services, Inc., its sole member
By: /s/ Illegible
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Name: Illegible
Title: Authorized Signatory
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