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Exhibit 10.9(a)(2)
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INTERSTONE THREE PARTNERS I L.P.
AMENDED AND RESTATED
LIMITED PARTNERSHIP AGREEMENT
Dated as of June __, 1996
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TABLE OF CONTENTS
Page
ARTICLE I
Definitions................................................. 2
SECTION 1.1 Definitions................................................................... 2
SECTION 1.2 Terms Generally............................................................... 12
ARTICLE II
General Provisions.............................................. 13
SECTION 2.1 Continuation of Partnership................................................... 13
SECTION 2.2 Partners...................................................................... 13
SECTION 2.3 Name.......................................................................... 13
SECTION 2.4 Term.......................................................................... 13
SECTION 2.5 Purpose; Powers............................................................... 13
SECTION 2.6 Place of Business............................................................. 15
SECTION 2.7 Alternative Investment Structure.............................................. 15
SECTION 2.8 Parallel Partnerships......................................................... 16
ARTICLE III
Management and Operation of the
Partnership; Identification and Approval of
Investments; Partner Services........................................ 16
SECTION 3.1 Management.................................................................... 16
SECTION 3.2 Joint Control by the General Partners......................................... 18
SECTION 3.3 Blackstone Partners Rights.................................................... 20
SECTION 3.4 Certain Duties and Obligations of the
Partners...................................................................... 21
SECTION 3.5 Restrictions on Authority of the General
Partners...................................................................... 22
SECTION 3.6 Right of First Opportunity.................................................... 23
SECTION 3.7 Right of First Opportunity; Exclusive
Rights; Investment Parameters................................................. 27
SECTION 3.8 Termination of Right of First
Opportunity................................................................... 30
SECTION 3.9 Financing..................................................................... 30
SECTION 3.10 Financial Advisory Services................................................... 31
SECTION 3.11 Other Partner Services........................................................ 32
SECTION 3.12 Marketing Rights.............................................................. 33
ARTICLE IV
Other Activities Permitted.......................................... 36
ARTICLE V
Capital Contributions;
Distributions................................................ 36
SECTION 5.1 Capital Contributions......................................................... 36
SECTION 5.2 Partner Loans for Failure to Fund
Committed Capital............................................................. 37
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SECTION 5.3 Dilution for Failure to Fund Capital.......................................... 37
SECTION 5.4 Distributions Generally....................................................... 38
SECTION 5.5 Distributions of Proceeds..................................................... 38
SECTION 5.6 Restricted Payments........................................................... 40
SECTION 5.7 Partnership Expenses.......................................................... 40
ARTICLE VI
Books and Reports; Tax Matters;
Capital Accounts; Allocations........................................ 41
SECTION 6.1 General Accounting Matters.................................................... 41
SECTION 6.2 Certain Tax Matters........................................................... 42
SECTION 6.3 Capital Accounts.............................................................. 44
SECTION 6.4 Allocations................................................................... 45
ARTICLE VII
Dissolution................................................. 47
SECTION 7.1 Dissolution................................................................... 47
SECTION 7.2 Winding-up.................................................................... 48
SECTION 7.3 Final Distribution............................................................ 48
ARTICLE VIII
Transfer of Partners' Interests....................................... 49
SECTION 8.1 Restrictions on Transfer of Partnership
Interests..................................................................... 49
SECTION 8.2 Other Transfer Provisions..................................................... 50
ARTICLE IX
Miscellaneous................................................ 51
SECTION 9.1 Equitable Relief.............................................................. 51
SECTION 9.2 Ownership and Use of Names.................................................... 51
SECTION 9.3 Governing Law................................................................. 52
SECTION 9.4 Successors and Assigns........................................................ 52
SECTION 9.5 Access; Confidentiality....................................................... 52
SECTION 9.6 Notices....................................................................... 52
SECTION 9.7 Counterparts.................................................................. 53
SECTION 9.8 Entire Agreement.............................................................. 53
SECTION 9.9 Amendments.................................................................... 53
SECTION 9.10 Section Titles................................................................ 53
SECTION 9.11 Representations and Warranties................................................ 53
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Schedules
SCHEDULE A Name, Address and Sharing Percentages
Exhibits
Exhibit A Form of Management Agreement
Exhibit B Form of Project Partnership Agreement
Exhibit C Form of Confirmation and Acknowledgment
of Right of First Opportunity
Exhibit D Pre-Existing Projects
Exhibit E Excluded Projects
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INTERSTONE THREE PARTNERS I L.P.
AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT,
dated as of June __, 1996 by and among BJS INTERSTONE
MANAGEMENT ASSOCIATES, a Delaware general partnership, as a
general partner, IHC/INTERSTONE CORPORATION, a Delaware
corporation, as a general partner, and BLACKSTONE REAL ESTATE
PARTNERS I L.P. and IHC/INTERSTONE PARTNERSHIP II, L.P., each
a Delaware limited partnership, as limited partners.
Preliminary Statement
A. The Blackstone Group and the Interstate Group each have
the capability for identifying, acquiring, improving, operating and disposing
of individual hotel, motel and other lodging properties and groups of hotel,
motel and other lodging properties, hotel and motel management companies (for
which the ownership of hotels and motels is a significant part of their
business) and public and private companies whose primary holdings are comprised
of such assets or operations ("Target Investment" or "Target Investments").
B. The Blackstone Partners and the Interstate Partners,
individually and acting through the Partnership, in each case in accordance
with the terms of this Agreement, wish to continue an exclusive arrangement
with each other under which, for the duration thereof and subject to the terms
set forth below, the Partnership, the Blackstone Partners and the Interstate
Partners through the Partnership and the Parallel Partnerships, will have the
first opportunity to acquire, operate and dispose of certain Target Investments
which are hereafter identified by the Blackstone Group and/or the Interstate
Group, as the case may be, and approved for investment in accordance with this
Agreement (each Target Investment proposed or approved, as the context
indicates, for acquisition pursuant to this Agreement is referred to as a
"Project").
C. In order to effect the foregoing, the parties hereto
entered into a limited partnership agreement dated as of December 15, 1995 (the
"Existing Agreement") and formed a partnership under the laws of the State of
Delaware with the name Interstone Three Partners I L.P. (the "Partnership").
D. Each of the Partners of the Partnership have agreed to
amend and restate the Existing Agreement in its entirety as set forth herein.
Agreement
Accordingly, in consideration of the mutual promises and
agreements herein made and intending to be legally bound hereby, the parties
hereto agree to amend and restate the Existing Agreement to read as follows:
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ARTICLE I
Definitions
SECTION 1.1 Definitions. Unless the context otherwise
requires, the following terms shall have the following meanings for purposes of
this Agreement:
"Acknowledgement" has the meaning set forth in Section
3.6(a).
"Adjusted Capital Account Balance" shall mean, with respect
to any Partner, the balance in such Partner's Capital Account adjusted
(i) by taking into account the adjustments, allocations and
distributions described in Regulations section
1.704-1(b)(2)(ii)(d)(4), (5), and (6); and (ii) by adding to such
balance such Partner's share of partnership Minimum Gain and Partner
Nonrecourse Debt Minimum Gain, determined pursuant to Regulations
section 1.704-2(g)(1) and 1.704-2(i)(5).
"Affiliate" with respect to any person means (i) any other
person who controls, is controlled by or is under common control with
such person, (ii) any director, officer, partner or employee of such
person or any person specified in clause (i) above or (iii) any
immediate family member of any person specified in clause (i) or (ii)
above. Notwithstanding the foregoing, for the purposes of this
Agreement, none of the Blackstone Partners nor their Affiliates shall
be deemed to be Affiliates of any of the Interstone Partners or the
Interstone Related Parties, none of the Interstate Partners nor their
Affiliates shall be deemed to be Affiliates of any of the Blackstone
Partners or the Blackstone Related Parties, and no officer or director
of any member of the Blackstone Group which is also an officer or
director of any member of the Interstone Group shall be deemed to be
an Affiliate of any of the Interstate Partners or Interstate Related
Parties,
and no member of the Interstone Group shall be deemed an Affiliate of any
member of the Blackstone Group.
"Agreement" means this Amended and Restated Limited
Partnership Agreement, as it may be amended, supplemented, modified or
restated from time to time.
"Asset Management Agreement" has the meaning set forth in
Section 3.6(f).
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"Authorized Representatives" of a General Partner shall be
those representatives designated by notice to all Partners by each
General Partner from time to time to represent such General Partner in
connection with the Partnership. The term "Authorized Representative"
shall refer to any one of the Authorized Representatives of a Partner.
The initial Authorized Representatives of the General Partners are set
forth in Section 3.1(e) below.
"Blackstone General Partner" means BJS Interstone Management
Associates, a Delaware general partnership, or any Affiliate of any
member of the Blackstone Group who replaces BJS Interstone Management
Associates as a general partner hereunder, or is admitted as an
additional general partner hereunder.
"Blackstone Group" means the Blackstone Partners, Affiliates
of the Blackstone Partners and the Blackstone Related Parties;
provided, that the Blackstone Group shall not include investors in the
Blackstone Partners who are not Affiliates of Blackstone Group
Holdings L.P., to the extent such investors are not investing through
any Affiliate of Blackstone Group Holdings L.P.
"Blackstone Limited Partner" means Blackstone Real Estate
Partners I L.P., a Delaware limited partnership, or any Affiliate of
any member of the Blackstone Group who replaces Blackstone Real Estate
Partners I L.P. as a limited partner hereunder, or is admitted as an
additional limited partner hereunder.
"Blackstone Partners" means collectively, the Blackstone
General Partner and the Blackstone Limited Partners and any other
Partner admitted to the Partnership which is an Affiliate of any of
the foregoing and any permitted assigns of such Partners.
"Blackstone Related Parties" means (i) Blackstone Group
Holdings L.P., (ii) each of the general partners of Blackstone Group
Holdings L.P. and his immediate family members, for so long as he is
such a partner and (iii) any corporation, partnership, limited
liability company, joint venture or other like entity in which the
Blackstone Partners or the parties referred to in (i) and (ii) above
individually or collectively, hold a fifty percent (50%) or greater,
direct or indirect (through one or more business entities), ownership
interest, but shall not include any such entity in which the
collective ownership interest of these parties is less than fifty
percent (50%) or which is a publicly traded company.
"Broken Deal" shall mean a proposed Project that is not
ultimately acquired by the Partnership.
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"Business Day" shall mean any day on which commercial banks
are authorized to do business and are not required by law or executive
order to close in New York, New York.
"Capital Account" has the meaning set forth in Section 6.3.
"Capital Contributions" means the net fair market value of
any capital contributions made by the Partners to the Partnership and
shall include (i) the contributions of such Partner made pursuant to
Sections 3.6, 3.9, 3.10, 5.1 and 5.7 and (ii) such Partner's payments
made to third party creditors of the Partnership with respect to
Partnership obligations to the extent such Partner is authorized by
this Agreement to make any such payment, unless and until reimbursed
by the Partnership.
"Capital Proceeds" means (A) the cash or other consideration
received by the Partnership (including interest on installment sales
when received) as a result of (i) any sale, exchange, abandonment,
foreclosure, insurance award, condemnation, easement sale or other
similar transaction relating to any property of the Partnership, (ii)
any financing or refinancing (to the extent such refinancing is deemed
a Disposition hereunder) relating to any property of the Partnership,
(iii) capital contributions to the Partnership upon admission of new
partners, (iv) any other transaction which, in accordance with
generally accepted accounting principles, would be treated as a
capital event, in each case less (B) any such cash which is applied to
(i) the payment of transaction costs and expenses, (ii) the repayment
of debt of the Partnership which is required under the terms of any
indebtedness of the Partnership or has been authorized by the General
Partners, (iii) the repair, restoration or other improvement of
Partnership Assets which is required under any contractual obligation
of the Partnership or has been authorized by the General Partners and
(iv) the establishment of reserves by the General Partners. "Capital
Proceeds" shall also mean any of the foregoing which are received by a
partnership or other vehicle in which the Partnership is a partner or
investor or in which the Partnership otherwise has an interest, to the
extent received by the Partnership as dividends or distributions.
"Carrying Value" shall mean, with respect to any Partnership
Asset, the asset's adjusted basis for U.S. federal income tax
purposes, except that the Carrying Values of all Partnership Assets
shall be adjusted to equal their respective fair market values, in
accordance with the rules set forth in Regulations Section
1.704-1(b)(2)(iv)(f),
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except as otherwise provided herein, as of: (a) the date of the
acquisition of any additional Partnership interest by any new or
existing Partner in exchange for more than a de minimis Capital
Contribution, other than pursuant to the initial formation of the
Partnership; (b) the date of the distribution of more than a de
minimis amount of Partnership property to a Partner; (c) the date a
Partnership interest is relinquished to the Partnership or (d) the
date of the termination of the Partnership under Section 708(b)(i)(B)
of the Code; provided, however, that adjustments pursuant to clauses
(a), (b) and (c) above shall be made only if the General Partners
determine that such adjustments are necessary or appropriate to
reflect the relative economic interests of the Partners. The Carrying
Value of any Partnership Asset distributed to any Partner shall be
adjusted immediately prior to such distribution to equal its fair
market value. Depreciation shall be calculated by reference to
Carrying Value, instead of tax basis once Carrying Value differs from
tax basis.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time, or any successor statute. Any reference herein to
a particular provision of the Code shall mean, where appropriate, the
corresponding provision in any successor statute.
"Committed Capital" shall mean, the aggregate amount of
$29,400,000 for the Blackstone Partners and the Blackstone Partners of
the Parallel Partnerships, and the aggregate amount of $30,600,000 for
the Interstate Partners and the Interstate Partners of the Parallel
Partnership.
"Competitive Rate" shall mean, with respect to a particular
service at a Target Investment, the lower of (i) the rate charged on
an arm's length basis for the same or similar service for comparable
properties in the geographic area in which the relevant Target
Investment is located by unaffiliated persons providing or performing
such service on an ongoing basis and (ii) the lowest rate charged by
any Affiliates of the Interstate General Partner for the same or
similar service for comparable properties in the geographic area in
which the relevant Target Investment is located.
"Consent" shall mean the approval, direction or
determination, as the case may be, of a Partner, given as provided in
Section 3.1, to do the act or thing for which the approval is
solicited or with respect to which the direction or determination is
given or made, or the act of granting such approval or giving such
direction or making such determination, as the context may require.
Any Consent required to be given by the Blackstone General Partner
shall be given by any one Authorized Representative of the Blackstone
General Partner. Any Consent to be given by the Interstate General
Partner shall be given by any two Authorized Representatives of the
Interstate General Partner.
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"Consideration" means the gross value of all cash, securities
and other properties paid or payable, directly or indirectly, in one
transaction or in a series or combination of transactions, in
connection with an acquisition or disposition of a Target Investment
or a transaction related thereto (including, without limitation,
amounts paid (A) pursuant to covenants not to compete, employment
contracts, employee benefit plans or other similar arrangements and
(B) to holders of any warrants, stock purchase rights, convertible
securities or similar rights and to holders of any options or stock
appreciation rights, whether or not vested). Consideration shall also
include the value of any long-term liabilities (including the
principal amount of any mortgage indebtedness or other indebtedness
for borrowed money, preferred stock obligations, any pension
liabilities and guarantees) indirectly or directly assumed or
acquired, or otherwise repaid or retired, in connection with or
anticipation of such acquisition. If an acquisition takes the form of
a purchase of assets, to the extent applicable Consideration shall
also include (i) the value of any current assets not purchased, minus
(ii) the value of any current liabilities not assumed. If the
Consideration to be paid is computed in any foreign currency, the
value of such foreign currency shall, for purposes hereof, be
converted into U.S. dollars at the prevailing exchange rate on the
date or dates on which such Consideration is paid. In this Agreement,
the value of any securities (whether debt or equity) or other property
paid or payable as part of the Consideration shall be determined as
follows: (1) the value of securities that are freely tradable in an
established public market will be determined on the basis of the last
market closing price prior to the public announcement of the
acquisition; and (2) the value of the securities that are not freely
tradable or have no established public market or, if the Consideration
utilized consists of property other than securities, the value of such
other property shall be the fair market value thereof as reasonably
determined by the General Partners.
"Contributing Partner" has the meaning set forth in Section
5.2.
"Disabling Event" means any event which would cause a General
Partner to cease to be a general partner of the Partnership pursuant
to Section 17-402 of the Partnership Act.
"Disposition" of a Project shall mean the sale, exchange or
other disposition by the Partnership of all or any portion of such
Project for cash, and shall include the receipt by the Partnership of
a liquidating dividend or
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other like distribution in cash. A refinancing of a Project shall be
deemed a Disposition of such Project unless the General Partners agree
otherwise. Whenever a portion of a Project (but not the entire
Project) is the subject of a Disposition, that portion shall be
treated as having been a separate project from that portion of the
Project that is retained by the Partnership, and the Capital
Contributions for such Project and the Proceeds (other than the
Proceeds of such Disposition of a portion of a Project) distributed to
the Partners with respect to such Project shall be treated as having
been divided between the portion subject to the Disposition and the
retained portion on a pro rata basis. For purposes of calculating the
Internal Rate of Return, a Broken Deal shall be considered a Project
subject to a Disposition that did not yield any Proceeds.
"Fair Market Value" of a Project as of a specific date shall
mean the fair market value of such project on such date as reasonably
determined by the General Partners (taking into consideration all
factors which may reasonably affect the sales price of the Project),
less the principal amount of any debt and other similar liabilities
secured by or otherwise related to such Project, and less a reasonable
estimate of transaction costs and expenses which would be incurred
upon a Disposition of such Project on such date. If the General
Partners can not reach agreement on the Fair Market Value of a
Project, the matter shall be settled by arbitration in New York, New
York in accordance with the Commercial Arbitration Rules of the
American Arbitration Association then in effect, except that the
number and method of selection of the arbitrators shall be as follows:
each General Partner shall select one qualified real estate investment
banker or MAI appraiser who is experienced in valuing assets and
liabilities of the type in question; the average of the Fair Market
Values of such Project determined by such arbitrators shall be the
Fair Market Value of such Project, and shall be final, conclusive and
binding on the Partners.
"Fiscal Period" means each fiscal quarter or such other
period as may be established by the General Partners.
"Fiscal Year" means the calendar year ending on December 31
of each year.
"General Partners" mean the Blackstone General Partner, the
Interstate General Partner and any other person admitted to the
Partnership as an additional or substitute general partner of the
Partnership in accordance with the provisions of this Agreement, until
such time as such person ceases to be a general partner of the
Partnership as provided herein.
"Internal Rate of Return" shall mean with respect to any
Partner as of the date of a cash distribution of
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Proceeds to such Partner, the rate of return (calculated as provided
below, taking into account the time value of money) which (x) the
Proceeds for which the return is being calculated represent on (y) all
Capital Contributions made by such Partner as of such date with
respect to the Project or Projects for which the return is being
calculated.
In determining the Internal Rate of Return, the following
shall apply:
(i) subject to the provisions of clause (ii) of
this definition, all present value calculations are to be
made as of the date such Capital Contributions were
contributed to the Partnership;
(ii) all Capital Contributions shall be treated as
having been contributed to the Partnership on the first day
of the month during which a Partner's funds were actually
delivered to the Partnership;
(iii) all distributions shall be treated as if
received on the last day of the month in which the
distribution was made;
(iv) all distribution amounts shall be based on
the amount of the distribution prior to the application of
any federal, state or local taxation to Partners (including
any withholding or deduction requirements); and
(v) the rates of return shall be per annum rates
and all amounts shall be calculated on a compounded annual
basis, and on the basis of a 365-day year.
When calculating the Internal Rate of Return (and for such
purpose only), a Partner's Capital Contribution to a Project shall not
be deemed to include 60% of such Partner's share of any amounts paid
to the Blackstone General Partner or its Affiliates pursuant to
Sections 3.9 and 3.10 below for such Project. When calculating the
Internal Rate of Return, a Partner's initial Capital Contributions
shall be deemed given on the date of admission of such Partner to the
Partnership, not on the date that the transferor of such Partner's
interest in the Partnership made its Capital Contributions; such
Capital Contributions shall be deemed Capital Contributions of the
transferor for the period from when made until the transfer to the new
Partner.
"Interstate General Partner" means IHC/Interstone
Corporation, a Delaware corporation, or any Affiliate of any member of
the Interstate Group who replaces IHC/Interstone Corporation as a
general partner hereunder or is admitted as an additional general
partner hereunder.
"Interstate Group" means the Interstate Partners, Affiliates
of the Interstate Partners and the Interstate Related Parties.
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"Interstate Limited Partner" means IHC/Interstone Partnership
II, L.P., a Delaware limited partnership, or any Affiliate of any
member of the Interstate Group who replaces IHC/Interstone Partnership
II, L.P. as a limited partner hereunder or is admitted as an
additional limited partner hereunder.
"Interstate Partners" means collectively, the Interstate
General Partner, the Interstate Limited Partner and any other Partner
admitted to the Partnership which is an Affiliate of any of the
foregoing and any permitted assigns of such Partners.
"Interstate Related Parties" means (i) Interstate Hotels
Company, (ii) each of the senior executives of Interstate Hotels
Company and his immediate family members, for so long as he is
employed by Interstate Hotels Company, (iii) Milton Fine and his
immediate family members and (iv) any corporation, partnership,
limited liability company, joint venture or other like entity in which
the Interstate Partners or the parties referred to in (i), (ii) and
(iii) above individually or collectively, hold a fifty percent (50%)
or greater, direct or indirect (through one or more business
entities), ownership interest but shall not include any such entity in
which the collective ownership interest of these parties is less than
fifty percent (50%) or which is a publicly traded company.
"Limited Partners" means the Blackstone Limited Partners, the
Interstate Limited Partner and any person admitted to the Partnership
as an additional or substitute limited partner of the Partnership in
accordance with the provisions of this Agreement.
"Liquidator" has the meaning set forth in Section 7.2.
"Management Agreement" shall mean a Management Agreement in
the form attached hereto as Exhibit#A, as such agreement may be
amended from time to time in accordance with the terms thereof and
hereof.
"Minimum Gain" shall have the meaning set forth in
Regulations section 1.704-2(d)(1) and shall mean the amount determined
by (i) computing for each nonrecourse liability of the Partnership any
gain the Partnership would realize if it disposed of the property
subject to that liability for no consideration other than full
satisfaction of the liability and (ii) aggregating the separately
computed gains. If the Carrying Value of any Partnership Asset
differs from the adjusted tax basis of such property, the calculation
of
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Minimum Gain pursuant to the preceding sentence shall be made by
reference to the Carrying Value. For purposes hereof, a liability of
the Partnership is a nonrecourse liability to the extent that no
Partner or related person bears the economic risk of loss for that
liability within the meaning of Regulations section 1.752-1.
"Net Income (Loss)" shall mean for each Fiscal Year or other
period, the taxable income or loss of the Partnership, or particular
items thereof, determined in accordance with the accounting method
used by the Partnership for U.S. federal income tax purposes with the
following adjustments: (i) all items of income, gain, loss or
deduction allocated pursuant to Section 6.4(c) through (e) shall not
be taken into account in computing such taxable income or loss; (ii)
any income of the Partnership that is exempt from U.S. federal income
taxation and not otherwise taken into account in computing Net Income
and Net Loss shall be added to such taxable income or loss; (iii) if
the Carrying Value of any asset differs from its adjusted tax basis
for U.S. federal income tax purposes, any depreciation, amortization
or gain resulting from a disposition of such asset shall be calculated
with reference to such Carrying Value; (iv) upon an adjustment to the
Carrying Value of any asset, pursuant to the definition of Carrying
Value, the amount of the adjustment shall be included as gain or loss
in computing such taxable income or loss; and (v) except for items in
(i) above, any expenditures of the Partnership not deductible in
computing taxable income or loss, not properly capitalizable and not
otherwise taken into account in computing Net Income and Net Loss
pursuant to this definition shall be treated as deductible items.
"Non-Capital Proceeds" means (x) any cash or other
consideration received by the Partnership other than Capital Proceeds
less (y) any such cash that is applied to the establishment of
reserves which have been established by the General Partners and to
expenses of the Partnership.
"Non-Contributing Partner" has the meaning set forth in
Section 5.2.
"Nonrecourse Deductions" shall have the meaning ascribed to
such term in Regulations section 1.704-2(b)(1).
"Organizational Expenses" means all reasonable third- party
costs and expenses pertaining to the organization of the Partnership
and the registration, qualification or exemption of the Partnership
under any applicable federal, state or foreign laws, including fees of
counsel to the Partnership and the Partners.
"Parallel Partnerships" has the meaning set forth in Section
2.8.
"Partner" means any person who is a partner of the
Partnership, whether a General Partner, a Limited Partner or both.
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"Partner Nonrecourse Debt" shall have the meaning ascribed to
such term in Regulations section 1.704-2(b)(4).
"Partner Nonrecourse Debt Minimum Gain" shall have the
meaning ascribed to such term in Regulations section 1.704-2(i)(2).
"Partner Nonrecourse Deductions" shall mean any item of
partnership loss, deduction, or expenditure under section 705(a)(2)(B)
of the Code that is attributable to a Partner Nonrecourse Debt, as
determined pursuant to Regulations section 1.704-2(i)(2).
"Partnership" means Interstone Three Partners I L.P.
"Partnership Act" means the Delaware Revised Uniform Limited
Partnership Act, 6 Del. C. Section 17-101, et seq., as it may be
amended from time to time, and any successor to such statute.
"Partnership Assets" means all right, title and interest of
the Partnership in and to all or any portion of the assets of the
Partnership and any property (real or personal) or estate acquired in
exchange therefor or in connection therewith.
"Pre-Existing Projects" has the meaning set forth in Section
3.6(a).
"Proceeds" means the collective reference to Capital Proceeds
and Non-Capital Proceeds.
"Project" has the meaning set forth in the Preliminary
Statement.
"Project Limited Liability Company Agreement" shall mean a
limited liability company agreement in a form to be agreed upon by the
General Partners, as such agreement may be amended from time to time
in accordance with the terms thereof and hereof, formed pursuant to
this Agreement to own Projects purchased hereunder.
"Project Partnership Agreement" shall mean a partnership
agreement in the form attached hereto as Exhibit B, as such agreement
may be amended from time to time in accordance with the terms thereof
and hereof, formed pursuant to this Agreement to own Projects
purchased hereunder.
"Regulations" means the regulations promulgated under the
Code.
"Related Parties" means the Blackstone Related Parties and
the Interstate Related Parties.
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"Request for Preliminary Approval" has the meaning set forth
in Section 3.6(b).
"Request for Final Approval" has the meaning set forth in
Section 3.6(f).
"Sharing Percentage" means the percentage interest of a
Partner as set forth on Schedule A hereto, as amended from time to
time in accordance herewith.
"Target Investment" has the meaning set forth in the
Preliminary Statement.
"Tax Matters Partner" has the meaning set forth in Section
6.2.
"Transfer" has the meaning set forth in Section 8.1(a).
"Transferee" has the meaning set forth in Section 8.1(b).
"Unrealized Loss" with respect to a Project on a date of a
distribution of Capital Proceeds shall mean the excess of the total
Capital Contributions with respect to such Project as of such date
over the Fair Market Value of such Project as of such date. A Project
shall not have any Unrealized Loss on a date of a distribution if the
calculation pursuant to this definition for such Project on such date
equals zero or less.
SECTION 1.2 Terms Generally. The definitions in Section 1.1
shall apply equally to both the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The term "person" includes individuals,
partnerships, joint ventures, corporations, trusts, governments (or agencies or
political subdivisions thereof) and other associations and entities. Unless
the context requires otherwise, the words "include", "includes" and "including"
shall be deemed to be followed by the phrase "without limitation". The term
"hereunder" shall mean this entire Agreement as a whole unless reference to a
specific section of this Agreement is made.
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ARTICLE II
General Provisions
SECTION 2.1 Continuation of Partnership. The Blackstone
General Partner and the Interstate General Partner, as the General Partners,
and the Blackstone Limited Partners and the Interstate Limited Partner, as
limited partners, hereby agree to continue the Partnership and the Partners
agree that the Partnership shall continue for the limited purposes set forth
and on the other terms and conditions set forth in this Agreement. The
Blackstone General Partner hereby represents that each of the Blackstone
Limited Partners is an Affiliate of the Blackstone General Partner or its
Affiliates.
SECTION 2.2 Partners. Schedule A hereto contains the name,
address and Sharing Percentage of each Partner as of the date of this
Agreement. Schedule A shall be revised by the General Partners from time to
time to reflect the admission or withdrawal of a Partner or the transfer or
assignment of interests in the Partnership in accordance with the terms of this
Agreement and other modifications to or changes in the information set forth
therein.
SECTION 2.3 Name. The Partnership shall conduct its
activities under the name of Interstone Three Partners I L.P. The General
Partners shall have the power at any time to change the name of the
Partnership; provided, that the name shall always contain the words "Limited
Partnership" or the letters "L.P." The General Partners shall give prompt
notice of any such change to each Partner.
SECTION 2.4 Term. The term of the Partnership shall
commence on the date of this Agreement and shall continue until December 31,
2045, unless sooner dissolved, wound up and terminated in accordance with
Article VII of this Agreement.
SECTION 2.5 Purpose; Powers. (a) The purpose of the
Partnership shall be (i) to implement the right of first opportunity with the
Blackstone Group and the Interstate Group, including review and approval or
disapproval by the General Partners of due diligence investigation of proposed
Target Investments, and, upon final approval by the General Partners, causing
the acquisition by the Partnership of such Target Investments either by itself
or directly or indirectly through entities in which the Partnership shall have
a direct or indirect ownership interest; (ii) operating, managing and disposing
of any Target Investments approved for acquisition pursuant to this Agreement;
and (iii) to do all things necessary or incidental to any of the foregoing.
(b) In furtherance of its purposes, the Partnership shall
have all powers necessary, suitable or convenient for the
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accomplishment of its purposes, alone or with others, including
the following:
(i) to invest and reinvest the cash assets of the
Partnership in money-market or other short-term investments;
(ii) to have and maintain one or more offices within or
without the State of Delaware, and, in connection therewith, to rent
or acquire office space, engage personnel and compensate them and do
such other acts and things as may be advisable or necessary in
connection with the maintenance of such office or offices;
(iii) to open, maintain and close bank accounts and draw
checks and other orders for the payment of moneys;
(iv) to engage employees (with such titles and delegated
responsibilities as may be determined), accountants, consultants,
auditors, custodians, investment advisers, attorneys and any and all
other agents and assistants, both professional and nonprofessional,
and to compensate them as may be necessary or advisable;
(v) to form or cause to be formed and to own the stock
of one or more corporations, whether foreign or domestic, and to form
or cause to be formed and to participate in partnerships, joint
ventures and limited liability companies, whether foreign or domestic;
(vi) to enter into, make and perform all contracts,
agreements and other undertakings as may be necessary or advisable or
incident to carrying out its purposes;
(vii) to sue, prosecute, settle or compromise all claims
against third parties, to compromise, settle or accept judgment of
claims against the Partnership, and to execute all documents and make
all representations, admissions and waivers in connection therewith;
(viii) to distribute, subject to the terms of this
Agreement, at any time and from time to time to Partners cash or
investments or other property of the Partnership, or any combination
thereof;
(ix) to borrow money, whether secured or unsecured, and
to make, issue, accept, endorse and execute promissory notes, drafts,
bills of exchange and other instruments and evidences of indebtedness,
all without limit as to amount, and to secure the payment thereof by
mortgage, pledge, or assignment of, or security interest in, the
assets then owned or thereafter acquired by the Partnership;
(x) to buy, sell, operate and otherwise deal with Target
Investments;
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(xi) to hold, receive, mortgage, pledge, lease, transfer,
exchange or otherwise dispose of, grant options with respect to, and
otherwise deal in and exercise all rights, powers, privileges and
other incidents of ownership or possession with respect to, all
property held or owned by the Partnership; and
(xii) to take such other actions necessary or incidental
thereto as may be permitted under applicable law.
SECTION 2.6 Place of Business. The Partnership shall
maintain a registered office at The Corporation Trust Company, 1209 Orange
Street, Wilmington, New Castle County, Delaware 19801, or such other office
within the State of Delaware as is chosen by the General Partners. The
Partnership shall maintain an office and principal place of business at 345
Park Avenue, New York, New York 10154, or at such other place as may from time
to time be determined as its principal place of business by the General
Partners; the General Partners shall give notice to the other Partners of any
change in the Partnership's principal place of business. The name and address
of the Partnership's registered agent as of the date of this Agreement is The
Corporation Trust Company, 1209 Orange Street, Wilmington, New Castle County,
Delaware 19801.
SECTION 2.7 Alternative Investment Structure. If the
Blackstone General Partner determines that for legal, tax, regulatory or other
reasons it is in the best interests of the Partners that a Target Investment be
made through an alternative investment structure, and all of the other General
Partners unanimously Consent to such alternative structure (which Consent shall
not be unreasonably withheld), the Blackstone General Partner shall structure
the making of all or any portion of such Target Investment outside of the
Partnership by requiring any Partner or Partners to make such Target Investment
either directly or indirectly through a partnership or other vehicle (such as
the purchase of stock, the purchase of partnership interests, or the formation
of another partnership or as tenants in common) that will invest on a parallel
basis with or in lieu of the Partnership, as the case may be. The Partners
shall be required to make capital contributions directly to each such vehicle
to the same extent, for the same purposes and on the same terms and conditions
as Partners are required to make Capital Contributions to the Partnership, and
such capital contributions shall reduce the unused Committed Capital of the
Partners to the same extent as if Capital Contributions were made to the
Partnership with respect thereto. Each Partner shall have the same economic
interest in all material respects in Target Investments made pursuant to this
Section 2.7 as such Partner would have if such Target Investment had been made
solely by the Partnership, and the other terms of such vehicle shall be
substantially identical in all material respects to those of the Partnership,
to the maximum extent applicable; provided, that such vehicle (or the entity in
which such vehicle invests) shall
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provide for the limited liability of the Limited Partners as a matter of the
organizational documents of such vehicle (or the entity in which such vehicle
invests) and as a matter of local law; and provided, further, that the General
Partners or Affiliates thereof will serve as the general partners or in some
other similar fiduciary capacity with respect to such vehicle.
SECTION 2.8 Parallel Partnerships. The General Partners
have established one or more additional collective partnerships (the "Parallel
Partnerships") organized pursuant to partnership agreements in substantially
the same form as this Agreement for certain types of investors to invest in
Target Investments together with the Partnership. The Blackstone General
Partner, or an Affiliate thereof, shall be a general partner of any such
Parallel Partnerships, and the Blackstone Limited Partners, or Affiliates
thereof, shall be limited partners of any such Parallel Partnerships. The
Interstate General Partner, or an Affiliate thereof, shall be a general partner
of any such Parallel Partnerships and the Interstate Limited Partner, or an
Affiliate thereof, shall be a limited partner of any such Parallel
Partnerships. The economic terms of each Parallel Partnership shall be the
same as those of the Partnership.
ARTICLE III
Management and Operation of the Partnership;
Identification and Approval of
Investments; Partner Services
SECTION 3.1 Management. (a) The General Partners shall have
the full and complete responsibility for managing the business of the
Partnership and shall make all of the decisions affecting the business of the
Partnership. Except as otherwise set forth in this Agreement, the Limited
Partners shall have no right of Consent with respect to such decisions. The
General Partners shall have all of the rights, powers and authorities permitted
to be exercised by a general partner of a limited partnership formed under the
Partnership Act. The General Partners shall exercise all powers necessary and
convenient for the purposes of the Partnership, including those enumerated in
Section 2.5, on behalf and in the name of the Partnership.
(b) Except as otherwise provided herein, the Limited Partners as
such shall not have the right to, and shall not, take part in the management or
affairs of the Partnership, nor in any event shall any Limited Partner have the
power to act for or bind the Partnership unless delegated such power by the
General Partners. The exercise by any Limited Partner of any right or power
conferred herein shall not be construed to constitute participation by such
Limited Partner in the control of the business of the Partnership so as to make
such Limited Partner
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liable as a general partner for the debts and obligations of the
Partnership for purposes of the Partnership Act.
(c) Any Consent required by this Agreement may be given as
follows:
(1) by a written Consent given by the approving Partner
at or prior to the doing of the act or thing of which the Consent is
solicited, provided that such Consent shall not have been nullified by
notice to all of the General Partners by the approving Partner at or
prior to the time, or by the negative vote by such approving Partner
at any meeting held to consider the doing, of such act or thing; or
(2) by the Consent given by the approving Partner to the
doing of the act or thing for which the Consent is solicited at any
meeting called or held to consider the doing of such act or thing.
(d) Unless the General Partners agree on a different
procedure, any matter requiring the Consent of all or any of the Partners
pursuant to this Agreement may be considered at a meeting of the Partners held
not less than three (3) nor more than fifteen (15) Business Days after notice
thereof shall have been given by a General Partner to all Partners. Such
notice (i) may be given by any General Partner, in its discretion, at any time.
Any such notice shall state briefly the purpose, time and place of the meeting.
All such meetings shall be held within or outside the State of Delaware at such
reasonable place as the General Partners shall designate and during normal
business hours. Unless otherwise provided by the General Partners, meetings
may be held telephonically.
(e) The written statements and representations of an
Authorized Representative for a General Partner shall be the only authorized
statements and representations of such General Partner with respect to the
matter covered by this Agreement. The initial Authorized Representatives are
(i) Kenneth C. Whitney, Thomas Saylak and John Schreiber for the Blackstone
General Partner and (ii) W. Thomas Parrington, J. William Richardson and Marvin
I. Droz for the Interstate General Partner. The written statement or
representation of any one Authorized Representative of the Blackstone General
Partner shall be sufficient to bind the Blackstone General Partner with respect
to all matters pertaining to the Partnership and addressed in such statement or
representation. The written statement or representation of any two Authorized
Representatives of the Interstate General Partner shall be sufficient to bind
the Interstate General Partner with respect to all matters pertaining to the
Partnership and addressed in such statement or representation.
(f) The failure to vote by any Partner on any matter
requiring such Partner's Consent within five business days after
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such vote is requested shall be deemed to be a negative vote with
respect to such matter.
(g) A Partner shall not be obligated to abstain from
voting on any matter (or vote in any particular manner) because of any interest
(or conflict of interest) of such Partner (or any Affiliate thereof) in such
matter.
(h) Each Partner agrees that, except as otherwise
expressly provided herein and to the fullest extent permitted by applicable
law, the approval of any proposed action of or relating to the Partnership by
all of the General Partners as provided herein (or if this Agreement grants one
General Partner sole approval rights over a certain action, the approval of
such action by such General Partner) shall bind each Partner and shall have the
same legal effect as the approval of each Partner of such action.
SECTION 3.2 Joint Control by the General Partners. Except
as specifically provided in this Agreement, the business, affairs and
operations of the Partnership shall be managed, and all Partnership decisions
shall be jointly made, by both General Partners, and no single General Partner,
acting alone, shall have the authority to bind or make any decision for the
Partnership or to conduct or manage the Partnership's business or affairs.
Without limiting the foregoing in any way, the following are examples of
decisions of the Partnership which shall be made jointly by the General
Partners:
(a) the reorganization of the Partnership as a
corporation or other entity, or the creation of a holding corporation,
partnership or limited liability company to own all or any substantial
portion of the assets of or all the equity interests in the
Partnership, provided that the surviving entity remains a pass-through
entity for taxation purposes;
(b) the termination or settlement of any litigation by
the Partnership;
(c) the making of any change in the Fiscal Period, any
determination of reserves under this Agreement, any distribution of
cash or investments or other property of the Partnership to the
Partners, or any withdrawals of capital from the Partnership;
(d) the making of any change in the name of the
Partnership or the use of another name by the Partnership to carry on
any business of the Partnership;
(e) the making of the determination and approval of such
tax matters as are specified in Section 6.2;
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(f) the making of the allocation of amounts in respect
of an interest in the Partnership Transferred pursuant to Section
8.2(e);
(g) the authorization of a Partner to disclose
information agreed to be held confidential under Sections 9.5;
(h) the admission of an additional Partner to the
Partnership pursuant to the terms of this Agreement if such additional
Partner is not an Affiliate of either any member of the Blackstone
Group or any member of the Interstate Group;
(i) (A) the sale, exchange or other transfer of any
Partnership Asset, (B) the merger or consolidation of the Partnership
with or into any other business entity provided that the surviving
entity remains a pass-through entity for taxation purposes, and (C)
the right to require each of the Partners to exchange, transfer or
otherwise convey some or all of its partnership interest in the
Partnership as part of an exit or disposition strategy for the
Partnership;
(j) the making of any expenditure incurred in connection
with the administration of the Partnership;
(k) the entering into of any lease by the Partnership as
lessor;
(l) the engagement of any independent accountant,
counsel, actuary or consultant to the Partnership, or any change in or
termination of any engaged independent accountant, counsel, actuary or
consultant to the Partnership;
(m) the maintenance of a registered office in Delaware
other than that specified in Section 2.6;
(n) the determination of any titles and responsibilities
of employees of the Partner pursuant to Section 2.5(b)(iv);
(o) the approval of budgets;
(p) the expenditure by the Partnership of any funds in
connection with the disposition of a Target Investment or the
expenditure by the Partnership of any funds required in connection
with the operation of any Target Investments which are not included
within the approved budget for such Target Investment;
(q) any termination, replacement or other change in the
franchisor of any Target Investment in accordance with the terms of
the franchise agreement, or the execution,
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modification or termination of any agreement which is material to the
Partnership;
(r) the dissolution, termination and winding up of the
Partnership as provided in Section 7.1(a);
(s) any amendment to this Agreement which would have a
material adverse effect on any Partner's economic interest in the
Partnership;
(t) extending the term of the Partnership beyond
December 31, 2045;
(u) in accordance with Section 3.6 below, the decision
for the Partnership to investigate a Target Investment and the
decision for the Partnership to acquire a Target Investment, or the
decision for the Partnership to acquire any other asset;
(v) the borrowing of money;
(w) the filing of a petition under any bankruptcy or
other insolvency law by the Partnership, or the admission in writing
by the Partnership of its bankruptcy, insolvency or general inability
to pay its debts;
(x) the commencement of any litigation by the
Partnership;
(y) a transaction or other matter involving any actual
or potential conflict of interest affecting any Partner or Affiliate
thereof other than the entering into of any agreements or the payment
of any amounts provided for in this Agreement; and
(z) a change in the business of the Partnership to
include any business other than that specified in Section 2.5 which
takes the focus of the Partnership's business away from the lodging
industry.
Notwithstanding the foregoing and without limiting the foregoing
in any way, any General Partner may delegate in writing to (i)
the other General Partner, its right to make any decisions
concerning the Partnership or take any actions on behalf of the
Partnership and/or (ii) to any manager of any Target Investment,
the day to day administrative duties in connection with the
operation of such property.
SECTION 3.3 Blackstone Partners Rights. Notwithstanding
any other provision of this Agreement, the Blackstone General Partner may take
any of the following actions with out the Consent of any of the Interstate
Partners:
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(a) with respect to any Target Investment in which an
Affiliate of the Interstate General Partner is the manager, any
termination, replacement or other change in such manager in accordance
with the terms of the management agreement, the declaration of a
default or event of default under any management agreement for such
manager, and the exercise of any remedies under such management
agreement;
(b) the approval of a transfer of any partner's interest in
the Partnership and the approval of the admission of any additional
partner to the Partnership if such additional partner is an Affiliate
of any member of the Blackstone Group or any member of the Interstate
Group; and
(c) such other actions and decisions which are expressly
given solely to the Blackstone General Partner pursuant to the terms
of this Agreement.
SECTION 3.4 Certain Duties and Obligations of the
Partners. (a) Subject to the terms of this Agreement, the General Partners
shall take all action which may be reasonably necessary or appropriate (i) for
the formation and continuation of the Partnership as a limited partnership
under the laws of the State of Delaware and (ii) for the development,
maintenance, preservation and operation of the business of the Partnership in
accordance with the provisions of this Agreement and applicable laws and
regulations.
(b) No Partner shall take any action so as to cause the
Partnership to be classified for Federal income tax purposes as an association
taxable as a corporation and not as a partnership.
(c) The General Partners shall take (and each Partner
agrees to cooperate with the General Partners and approves of the General
Partners taking on its behalf) all action which is necessary to form or qualify
the Partnership to conduct the business in which the Partnership is engaged
under the laws of any jurisdiction in which the Partnership is doing business
and to continue in effect such formation or qualification.
(d) The General Partners shall not take, or cause to be
taken, any action that would result in any Limited Partner having any personal
liability for the obligations of the Partnership. The General Partners shall
be under a duty as described herein to conduct the affairs of the Partnership
in the best interests of the Partnership and of the Partners including the
safekeeping and use of all Partnership funds and assets and the use thereof for
the exclusive benefit of the Partnership. Neither any Partner nor any
Affiliate of any Partner shall enter into any transaction with the Partnership
unless the transaction (i) is expressly permitted hereunder, (ii) is entered
into on arm's-length terms in the ordinary course of Partnership business or
(iii) is approved by all of the General Partners upon
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disclosure of any direct or indirect interest such Partner or any
Affiliate thereof may have in the transaction.
(e) No General Partner shall be liable, responsible or
accountable in damages or otherwise to the Partnership or to any Partner for
(a) any act performed within the scope of the authority conferred on such
General Partner by this Agreement except for the gross negligence or willful
misconduct of such General Partner in carrying out its obligations hereunder,
(b) such General Partner's failure or refusal to perform any act, except those
expressly required by or pursuant to the terms of this Agreement, (c) such
General Partner's performance of, or failure to perform, any act on the
reasonable reliance on advice of legal counsel to the Partnership or (d) the
negligence, dishonesty or bad faith of any agent, consultant or broker of the
Partnership selected, engaged or retained and monitored with reasonable care.
In any threatened, pending or completed action, suit or proceeding, each
General Partner shall be fully protected and indemnified and held harmless by
the Partnership against all liabilities, obligations, claims, losses, damages,
penalties, actions, judgments, suits, proceedings, costs, expenses and
disbursements of any kind or nature whatsoever (including, without limitation,
reasonable attorneys' fees, costs of investigation, fines, judgments and
amounts paid in settlement, actually incurred by such General Partner in
connection with such action, suit or proceeding) by virtue of its status as a
General Partner or with respect to any action or omission taken or suffered in
good faith, other than liabilities and losses resulting from the gross
negligence or willful misconduct of such General Partner; provided, however,
that a General Partner shall not be so indemnified for any acts determined to
be in contravention of this Agreement or in breach of its fiduciary duties.
The indemnification provided by this paragraph shall be recoverable only out of
the assets of the Partnership, and no Partner shall have any personal liability
on account thereof.
SECTION 3.5 Restrictions on Authority of the General
Partners. The General Partners shall not have the authority to:
(a) do any act in contravention of this Agreement
(including under Section 3.2 or Section 3.3);
(b) do any act which would make it impossible to carry
on the ordinary business of the Partnership, except in connection with
the dissolution, winding up and termination of the Partnership as
provided by Article VII;
(c) possess Partnership property, or assign their
respective rights in specific Partnership property, for other than a
Partnership purpose;
(d) admit a person as a Partner except as provided in
this Agreement; or
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(e) knowingly perform any act that would subject any
Limited Partner to liability as a general partner in any jurisdiction.
SECTION 3.6 Right of First Opportunity. (a) Subject to
Section 3.7(b) below, and until expiration or termination of the right of first
opportunity in favor of the Partnership set forth below (which right has been
confirmed and acknowledged in the Confirmation and Acknowledgment of Right of
First Opportunity ("Acknowledgment"), in the form attached hereto as Exhibit C,
which has been executed simultaneously herewith), each member of the Blackstone
Group and the Interstate Group shall offer to the Partnership (along with the
Parallel Partnerships) a right of first opportunity to invest in each Target
Investment which (x) is identified by such member after the date of this
Agreement or (y) which is identified on the list of Projects attached hereto as
Exhibit D (the "Pre-Existing Projects"), in each case, upon and subject to the
terms set forth in the remainder of this Section 3.6.
(b) Except as provided in Section 3.7(b) below, promptly
upon its identification of a Target Investment as a potential investment, each
member of the Blackstone Group and the Interstate Group shall notify each of
the General Partners about such Target Investment (such notification, a
"Request for Preliminary Approval") and shall provide each of the General
Partners with such information reasonably necessary to evaluate such
investment.
(c) Within five (5) Business Days after delivery to the
General Partners of the Request for Preliminary Approval and the accompanying
information pursuant to paragraph (b) above with respect to a proposed Target
Investment, and provided that notice shall have first been given from the party
requesting such action that approval is being sought under this Section, the
General Partners shall either approve or disapprove pursuit of such proposed
Target Investment (including the incurring of due diligence costs and
expenditures, the negotiation and documentation of the terms of purchase and
financing, and the posting of deposits). If the General Partners, having first
been notified that approval under this Section is being sought, fail to
unanimously approve the investigation of a proposed Target Investment within
such five (5) Business Day period, the proposed Target Investment shall be
deemed disapproved. Any General Partner shall have the right to reasonably
request additional information regarding the proposed Project within three (3)
Business Days after receipt of the Request for Preliminary Approval and the
accompanying information. If any General Partner requests such additional
information, the five (5) Business Day period referred to above shall commence
on the day such General Partner receives all such additional information. The
General Partners shall each have the right to approve or disapprove
investigation of any proposed Project in their sole and absolute discretion.
Once investigation of a Target
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Investment is approved, the due diligence costs and expenditures
reasonably incurred by the Partnership and within the scope
approved by the General Partners with respect to such Project
shall become the obligation of the Partnership.
(1) All due diligence costs and expenditures reasonably
incurred by the Partnership pursuant to this Section and within the
scope of the approved due diligence shall be funded if and when
required for payment, and shall be funded solely from, and shall
constitute, Capital Contributions to the Partnership by the Partners.
In no event shall due diligence expenses be funded from operating
revenues of the Partnership. The due diligence expenses incurred by
the Partnership shall be allocated for book and tax accounting
purposes between and among each Project in such manner as the General
Partners may reasonably approve. Due diligence expenses from a
Project shall be allocated among the Parallel Partnerships in such a
manner as the Blackstone General Partner shall determine, in its sole
discretion. Each Partner shall contribute its pro rata share of such
due diligence expenses, based upon such Partner's Sharing Percentage.
(2) The Partners intend that all due diligence will be
conducted through the Partnership in accordance with any Consent given
by the General Partners; however, a General Partner may elect to
perform its own due diligence in addition to that being performed by
the Partnership. In the event a General Partner so elects to perform
its own due diligence, such General Partner shall use its best efforts
to minimize duplication of efforts and costs with that of the
Partnership. The expenses (including legal fees) reasonably incurred
by such General Partner shall be payable by the Partnership as
Partnership expenses.
(d) If the General Partners approve investigation of a
Project, the Partnership shall promptly undertake due diligence investigation
and at appropriate times during and, in any event, prior to the conclusion of
that due diligence investigation, the Partnership shall make available to each
Partner copies of the material due diligence information obtained by the
Partnership with respect to the applicable Target Investment.
(e) If any General Partner has elected to participate in
the due diligence investigation of a proposed Project pursuant to Section
3.6(c)(2) above, then all due diligence activities shall be coordinated with
such General Partner as reasonably necessary to facilitate such participation.
(f) At such time, if any, as any member of the
Blackstone Group or the Interstate Group determines that a request for final
authority to proceed with acquisition of a Project is required because such
party reasonably believes that a binding commitment (i.e. a letter of intent
which is, or could
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become binding or a contract for purchase and sale) to proceed with the
acquisition must be executed by the Partnership or the opportunity to acquire
such interest would be lost, such party shall request the General Partners to
give their final approval to proceed with such acquisition (such notification, a
"Request for Final Approval"). Upon the request of any General Partner, a
Request for Final Approval shall be made in writing. In connection with any
Request for Final Approval, such party shall, to the extent applicable, (i)
submit to the General Partners the form of any purchase agreement and/or other
relevant documents pursuant to which the Partnership may acquire an interest in
a Project, and (ii) notify the General Partners of whether an Affiliate of the
Interstate General Partner is being proposed as the property manager for the
Project. Within five (5) Business Days after delivery of the Request for Final
Approval, the General Partners shall meet and either approve or disapprove, in
writing, the proposed Project, including a timetable for closing of the
acquisition, the posting of any non-refundable deposits, if applicable, and the
terms of engagement of any Affiliate of the Interstate General Partner for
property or asset management of the Project, as applicable. Each General
Partner shall have the right to grant final approval or disapproval of the
Project in its sole and absolute discretion. However, unless all of the General
Partners agree to extend the five (5) Business Day decision period set forth
above, the General Partners shall either approve or disapprove the Project
within that period without exception, and any failure to act within that period,
as it may be extended by the General Partners in their sole discretion, shall
constitute a disapproval of the Project. The Blackstone Partners specifically
acknowledge that, unless transfer of management is not feasible or practical,
the Interstate General Partner contemplates the engagement by the Partnership of
an Affiliate of the Interstate General Partner on an arm's length basis in
connection with the property management of one or more of the Projects and
contemplates that one or more of the Project proposals may propose such
engagement. If transfer of management is not feasible or practical, then,
unless such engagement is not feasible or practical, the Partnership shall
engage an Affiliate of the Interstate General Partner as an asset manager for
such Project pursuant to an Asset Management Agreement in form and substance
satisfactory to the parties thereto (the "Asset Management Agreement"), and the
fees payable by the Partnership under such Asset Management Agreement shall be
at Competitive Rates. Unless the General Partners unanimously agree otherwise,
no nonrefundable deposit shall be posted with respect to a Project until that
Project has received final Project approval pursuant to this subsection 3.6(f)
and the General Partners have had the opportunity to review the purchase
agreement and/or the other documents pursuant to which the Partnership may
acquire an interest in such Project. The final Project approval shall specify
the amount of each remaining funding obligation with respect to the applicable
Project and the date(s) by which each such amount is to be funded, it being the
intent of the Partners that they not fund to the Partnership
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those amounts due to the seller of (or if applicable, escrow agent for the
transfer of) the Project more than three (3) Business Days prior to the date
such amounts are due to the Seller or escrow agent, as applicable. The funding
obligations with respect to a Project shall be allocated among the Parallel
Partnerships in such a manner as the Blackstone General Partner shall determine,
in its sole discretion. By each funding date, the Partners shall fund to the
Partnership their pro rata portion of the funding obligation then due, based
upon each Partner's Sharing Percentage, including any purchase deposits
contemplated in connection with the Consent to such Project. In no event shall
final Project approval funding requirements be funded from operating revenues of
the Partnership. All such contributions to the Partnership shall constitute
Capital Contributions. Each of the General Partners will consult with the other
General Partners in connection with the negotiation of any documents necessary
for the acquisition of a Target Investment.
(g) If the General Partners approve a proposed Project
pursuant to subsection 3.6(f) above, unless the Project shall be purchased
through another form, the Partnership shall promptly finalize the form of the
Project Partnership Agreement or Project Limited Liability Company Agreement,
as applicable, for the ownership of the proposed Project (with such Project
specific modifications as are necessary to address any Project specific
characteristics not addressed by the form of Project Partnership Agreement or
Project Limited Liability Company Agreement, as applicable), and promptly
finalize the form of a Management Agreement or an Asset Management Agreement,
as applicable, to be entered into (with such Project specific modifications as
are necessary to address any Project specific characteristics not addressed by
the form of Management Agreement or Asset Management Agreement, as applicable,
and which the Manager and the Blackstone General Partner may approve), which
Management Agreement (if applicable) shall provide for aggregate fees not
greater than 2.8% of Gross Operating Revenues (as defined in the Management
Agreement). In no event shall any party hereunder have any liability to the
other party for failure to finalize or enter into any Management Agreement or
Asset Management Agreement, as applicable, so long as the parties have
proceeded in good faith to attempt to consummate such documentation following
approval of the General Partners of any proposed Project pursuant to Section
3.6.
(h) The General Partners agree that in the event that
(A) material facts or circumstances or a material change in any facts or
circumstances regarding a Target Investment which was approved for acquisition
by the General Partners become known to any General Partner which were not
previously known by such General Partner and (B) with the knowledge of such new
or changed facts or circumstances, such General Partner no longer desires to
proceed with such acquisition and (C) at the time of the occurrence of the
event or events referred to in clause (A) above, (x) the Partnership is not
irrevocably committed to
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consummate the acquisition of such Target Investment pursuant to a binding legal
agreement and (y) the Partnership's obligations under such agreement would not
be breached by the failure to consummate such acquisition, then such General
Partner may, by written notice to the other General Partners, revoke its Consent
to consummate such acquisition at which time such Target Investment shall no
longer be deemed approved.
(i) Notwithstanding anything in this Section to the
contrary, if, with respect to a Project, a member of the Blackstone Group or
the Interstate Group reasonably believes it must take some action to retain the
opportunity to purchase such Project before it has sufficient time to follow
the procedures for approval set forth in this Section, such party may take such
action (including the making of a deposit or the entering into a binding
agreement if assignable to the Partnership) in its own name only and at its own
risk without violating the terms of this Agreement, provided such party
promptly submits such Project to the Partnership for its consideration. If the
General Partners subsequently approve such Project, such party shall assign all
of its rights in the Project to the Partnership and the Parallel Partnerships,
as appropriate. If the General Partners subsequently disapprove such Project,
the Partnership shall not be bound in any way to such Project, and the party
who proposed the Project may proceed with such Project only if the conditions
of Section 3.7(b) and Section 3.7(c) have been met.
(j) Any General Partner may request that any of the time
periods set forth herein be reduced or extended, if reasonably necessary.
(k) Notwithstanding anything in this Section to the
contrary, none of the Interstate Partners shall be deemed in default hereunder
for failure to notify the Blackstone Group as required herein if notice has
been given to the Blackstone General Partner of any of the Parallel
Partnerships.
(l) Notwithstanding anything contained in this Agreement to
the contrary, unless all of the Partners unanimously agree otherwise, each
Project in which the Partnership invests shall secure mortgage debt financing
in principal amounts and with terms that are consistent with the then currently
prevailing market conditions, but in any event in principal amounts between 60%
and 75% of the total acquisition cost of such Project.
SECTION 3.7 Right of First Opportunity; Exclusive Rights;
Investment Parameters. (a) Subject to the terms of this Agreement as set
forth above, the Blackstone Partners and the Interstate Partners each covenant
to provide to the Partnership, and each other, during the term of this
Agreement, the right of first opportunity as provided in Section 3.6 above to
invest in (x) those Target Investments which are hereafter identified by them
and (y) the Pre-Existing Projects. By their previous execution of the
Acknowledgement, Interstate Hotels Company (in
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the case of (A) below) and Blackstone Group Holdings L.P. (in the case of (B)
below) have agreed and hereby ratify and confirm that they agree, and agree to
cause (A) the Interstate Group and (B) the Blackstone Group, respectively, to
submit any Target Investments in which they or the Interstate Group and the
Blackstone Group would otherwise wish to invest independent of the Partnership
to the right of first opportunity set forth herein, and, in connection
therewith, they shall, and shall cause the Interstate Group and the Blackstone
Group to, subject to Section 3.7(b) below, refer all such investment
opportunities to the Interstate General Partner or the Blackstone General
Partner, as applicable, for submission to the Partnership pursuant to the terms
set forth above.
(b) Notwithstanding anything herein to the contrary, the
Interstate Group and the Blackstone Group expressly retain the right to
undertake acquisition or development of any Target Investment or any other
investment whatsoever, without the consent of the others, and free of any right
of first opportunity hereunder, at such time, in such form and upon such terms
as they, acting in their sole discretion, may determine appropriate, where any
one of the following conditions is satisfied:
(i) such Project is a Project that was disapproved or
deemed disapproved solely by action or inaction of the General
Partners after proper notice; provided, that if a Project is
disapproved or deemed disapproved by a General Partner who is a member
of the same group (i.e., the Blackstone Group or the Interstate Group)
as the party who submitted the Request for Preliminary Approval or
Request for Final Approval, as applicable, then the condition
contained in this clause (i) shall not be deemed satisfied for any
member of such group;
(ii) such Project fails to meet the definition of a
Target Investment;
(iii) except as expressly provided below, such Project is
listed on Exhibit E hereto, subject to the qualifications and
agreements described in such Exhibit;
(iv) such Project is identified or undertaken after the
termination of the right of first opportunity pursuant to the terms of
this Agreement;
(v) such party is acquiring, directly or indirectly, the
stock or assets of an entity which owns one or more Target Investments
but whose assets and/or operations are not primarily composed of
Target Investments;
(vi) such party is acquiring, directly or indirectly, the
stock or assets of an entity which primarily owns and/or operates
hotel or motel franchise systems or hotel or motel reservations
systems;
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(vii) the Consideration being paid for such Target
Investment in the aggregate is less than $10,000,000 or the equity
portion of the Consideration being paid for such Target Investment in
the aggregate is less than $5,000,000; or
(viii) with respect to a Target Investment, the Interstate
Group or the Blackstone Group, as applicable, certifies, at any time
(whether or not such Project has been submitted to the Partners and
the Partnership under Section 3.6 above), that in its good faith
judgment, involvement with the Blackstone Group or the Interstate
Group, as applicable, in such Target Investment would be prohibited
by, or otherwise interfere with, its other business arrangements or
would otherwise not be appropriate, feasible or practical.
(c) Notwithstanding anything in Section 3.7(b) above to
the contrary, the right of first opportunity set forth herein will apply to any
acquisition undertaken by any member of the Blackstone Group or the Interstate
Group during the term of this right of first opportunity with respect to the
Pre-Existing Projects. In the event that a party is undertaking the
acquisition of a Target Investment free of the right of first opportunity
pursuant to Section 3.7(b)(i), such party shall acquire such Target Investment
upon terms that are no more favorable than the terms presented to the General
Partners with respect to such Target Investment.
(d) The Partners acknowledge that, without limiting the
definition of Target Investment, it is their intent that the Target Investments
ultimately acquired by the Partnership will be Target Investments which (i) are
mid to high quality (3-4 stars), (ii) are located in growing markets, (iii) are
well positioned vis-a-vis the competition and, (iv) provide significant
opportunity for enhanced performance through intensive management repositioning
and/or redevelopment. Additionally, there is a preference for multi-asset
acquisitions over single properties in order to provide for the most efficient
and cost effective underwriting and investment process. Further, such
acquisitions should provide minimum going-in free and clear returns of 11%
(after management and FF&E reserve), unless immediate opportunity for enhanced
performance can be demonstrated. Nevertheless, certain Target Investments may
be approved hereunder even if they do not fall within the above-referenced
investment parameters. Accordingly, except as otherwise provided herein
(including without limitation Section 3.7(b) below), all Target Investments,
including, those that do not fall within the above-referenced investment
parameters, shall be subject to the right of first opportunity set forth in
Section 3.6 above.
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SECTION 3.8 Termination of Right of First Opportunity.
(a) The Blackstone General Partner shall have the right
to terminate the right of first opportunity set forth in Section 3.6 if any
member of the Interstate Group defaults in the performance of any of its
obligations hereunder or under the Acknowledgement after the Blackstone General
Partner has given such Partner or any other such party notice of such default
and such Partner or other party has failed to cure such default within 30 days
after receipt of such notice.
(b) The Interstate General Partner shall have the right
to terminate the right of first opportunity set forth in Section 3.6 if any
member of the Blackstone Group defaults in the performance of any of its
obligations hereunder or under the Acknowledgement after the Interstate General
Partner has given such Partner or any other such party notice of such default
and such Partner or other party has failed to cure such default within 30 days
after receipt of such notice.
(c) The right of first opportunity set forth in Section
3.6 shall automatically terminate upon the earlier to occur of (i) December 15,
1997 or (ii) the date upon which the members of the Blackstone Group in the
Partnership and in the Parallel Partnerships shall have contributed an
aggregate of $29,400,000 to the Partnership and the Parallel Partnerships and
the members of the Interstate Group in the Partnership and the Parallel
Partnerships shall have contributed an aggregate of $30,600,000 to the
Partnership and the Parallel Partnerships.
(d) At any time after $54,000,000 has been invested (either
through acquisitions that are closed or through binding commitments to close
acquisitions) in the aggregate by the Partnership and the Parallel
Partnerships, then any Partner may elect to terminate the right of first
opportunity set forth in Section 3.6 upon three (3) Business Days notice to all
the other Partners.
(e) The General Partners may, in their discretion,
extend the right of first opportunity set forth in Section 3.6 for such period
of time as they may mutually agree.
SECTION 3.9 Financing. The Blackstone General Partner,
acting directly or through one or more of its Affiliates, shall endeavor to
secure an acquisition financing facility for the Partnership and the Parallel
Partnerships in an initial amount between $60,000,000 and $80,000,000, such
facility to be subject to borrowings by the Partnership and the Parallel
Partnerships to acquire Target Investments in the event that sufficient seller
financing is not available in connection with the acquisition of any such
Target Investment and for other related purposes. If needed, the Blackstone
General Partner may secure additional debt facilities for the Partnership and
the
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Parallel Partnerships up to an aggregate amount (including the initial
$60,000,000 to $80,000,000) between $140,000,000 and $180,000,000. The General
Partners must unanimously approve the terms and conditions of such financing.
In the event such financing is obtained, in addition to any other fees, expenses
or other compensation payable to the Blackstone General Partner and/or its
Affiliates hereunder or any fees payable to third parties in connection with
such financing, the Partnership and the Parallel Partnerships shall pay to the
Blackstone General Partner and/or its Affiliates, as the case may be, a fee for
placing such debt facilities in an amount equal to one percent (1%) of the
maximum principal amount of each such debt facility. The portion of such fee
allocated to the Partnership shall be determined by the Blackstone General
Partner, in its sole discretion. At the time such fee is payable, each Partner
shall fund to the Partnership, as a Capital Contribution, its pro rata portion
of such fee, based upon such Partner's Sharing Percentage, to the extent not
financed as part of the overall transaction. No fee shall be payable under this
Section in connection with the refinancing of any such debt facilities.
SECTION 3.10 Financial Advisory Services. (a) Each time
that the Partnership acquires a Target Investment, the Partnership and any
Parallel Partnerships invested in such Target Investment shall pay to whichever
of the Blackstone General Partner (and/or its Affiliates) or the Interstate
General Partners (and/or its Affiliates) proposed such Target Investment to the
Partnership, an aggregate advisory fee equal to one percent (1%) of the amount
of the Consideration for the acquisition of such Target Investment; provided
that the Blackstone General Partner or its Affiliates shall not be entitled to
such a fee after the occurrence and during the continuance of a default
hereunder by any of the Blackstone Partners (after any notice and opportunity
to cure); and provided further that the Interstate General Partner or its
Affiliates shall not be entitled to such a fee after the occurrence and during
the continuance of a default hereunder by any of the Interstate Partners (after
any notice and opportunity to cure). The portion of such fee allocated to the
Partnership shall be determined by the Blackstone General Partner. At the time
such fee is payable, each Partner shall fund to the Partnership, as a Capital
Contribution, its pro rata portion of such fee, based upon such Partner's
Sharing Percentage, to the extent not financed as part of the overall
transaction.
(b) Each time that the Partnership disposes (including,
without limitation, in exchange for stock of a corporation, partnership
interests in a partnership or interests in a limited liability company) of a
Target Investment, the Partnership and any Parallel Partnerships invested in
such Target Investment shall pay to the Blackstone General Partner (and/or its
Affiliates) an aggregate advisory fee equal to one percent (1%) of the amount
of the Consideration for the disposition of such Target Investment; provided
that the Blackstone General Partner
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or its Affiliates shall not be entitled to such a fee after the occurrence and
during the continuance of a default hereunder by any of the Blackstone Partners
(after any notice and opportunity to cure). The portion of such fee allocated
to the Partnership shall be determined by the Blackstone General Partner. At
the time such fee is payable, each Partner shall fund to the Partnership, as a
Capital Contribution, its pro rata portion of such fee, based upon such
Partner's Sharing Percentage, to the extent not financed as part of the overall
transaction.
SECTION 3.11 Other Partner Services.
(a) Until such time as the General Partners hire, as an
employee or employees of the Partnership, a portfolio manager, a controller
and/or an administrative staff to conduct and oversee the overall
administration of the Partnership, the Interstate General Partner shall conduct
all the administrative affairs of the Partnership at the then Competitive Rate;
provided, however, that the General Partners agree to hire an employee or
employees of the Partnership to perform such tasks promptly after the needs of
the Partnership so require. Any such employee may be employed jointly by the
Parallel Partnerships. The Interstate General Partner shall also, at no cost
to the Partnership (except where otherwise provided in this Agreement),
conduct, oversee and/or manage all (i) pre-acquisition due diligence, (ii)
property-level management, (iii) performance tracking, (iv) the making of
capital improvements to any Project, (v) overall portfolio management of the
Partnership Assets and (vi) negotiation of franchise fee arrangements. The
Interstate General Partner shall also be responsible for preparing
administrative, operating and capital budgets for the Partnership. The
Interstate General Partner shall submit to the General Partners all relevant
information regarding all proposed budgets, proposed franchise fee arrangements
and related financial matters, and the General Partners shall have the right to
Consent to all such materials before they are implemented by the Partnership.
(b) The Blackstone General Partner shall, at no cost to
the Partnership (except where otherwise provided in this Agreement), conduct,
oversee and/or manage all the acquisition and disposition activities of the
Partnership, including overseeing acquisitions and dispositions of Target
Investments, arranging debt financings on individual Target Investments and
conducting and/or overseeing all mergers and public securities offerings.
(c) The Partners acknowledge that Affiliates of the
Interstate General Partner have the capability of providing to the Partnership
various insurance and purchasing services. At the direction of the Blackstone
General Partner acting in its sole discretion (including, as to insurance,
approval by the Blackstone General Partner of the financial soundness of any
proposed insurance company and its reinsurers), the Partnership
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may engage such Affiliates of the Interstate General Partner to perform such
services (in which case such services shall be performed at Competitive Rates)
or the Partnership may engage independent third parties to perform such
services, provided, that if the Partnership has received an offer from any such
independent third party to perform such services, Affiliates of the Interstate
General Partner shall have the right to match such offer and, if such offer is
matched, the Partnership will engage such Affiliates on the terms of such offer.
(d) In performance of the services pursuant to this
Section 3.11 and otherwise, the Partners agree that they shall cooperate and
consult with each other in an effort to minimize duplication of efforts and
costs.
SECTION 3.12 Marketing Rights. At any time after December
__, 1997 [18 months from the execution hereof], the Blackstone Partners, acting
jointly, or the Interstate Partners, acting jointly, may propose the sale of a
Project or Projects (but not a portion of any Project) in accordance with the
following terms:
(a) All of the Blackstone Partners may jointly serve upon all
of the Interstate Partners, or all of the Interstate Partners may
jointly serve upon the all of the Blackstone Partners, a notice (an
"Offering Notice") as described below. The partners serving an
Offering Notice shall be referred to in this Section as the "Offering
Group". The partners receiving an Offering Notice shall be referred
to in this Section as the "Offeree Group". Each Offering Notice shall
specify one or more Projects (the "Offered Projects") that the Offeror
Group proposes to be sold (either by causing the Property Partnerships
which own such Offered Projects to sell such Offered Projects or by
selling all of the partnership interests in such Property
Partnerships) and designate a price for the sale of each Offered
Project (the "Offer Price"). The Offeree Group with respect to a
Project may not deliver an Offering Notice with respect to such
Project until the expiration of the Sale Option Period (as defined
below) for such Project with respect to the Offering Notice of the
Offeror Group with respect to such Project. The Offering Notice may
not propose to sell a portion of any Project. An Offering Notice
delivered under this Agreement must be simultaneously delivered under
the partnership agreement of each of the Parallel Partnerships, and
for the purposes of this Section 3.12, the Offeror Group shall consist
of all of the members of the Offeror Groups in each of the Parallel
Partnerships, the Offeree Group shall consist of all of the members of
the Offeree Groups in each of the Parallel Partnerships, the Offered
Projects shall consist of the interest of all of the Parallel
Partnerships in such Offered Projects, and the Offeree Deposit (as
defined below) shall be delivered in the aggregate by all of the
Parallel Partnerships,
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(b) Within 30 days after the receipt by the Offeree Group of
an Offering Notice (an "Offeree Option Period"), the Offeree Group may
in a writing to the Offeror Group (an "Offeree Reply Notice") (i)
elect to purchase all of the Offered Projects listed in such Offering
Notice (an "Offeror Group Interest") at a price equal to the aggregate
Offer Price for the Offered Projects, or (ii) decline to purchase such
Offered Projects. With respect to each Offering Notice, if the
Offeree Group fails to deliver an Offeree Reply Notice to the Offeror
Group prior to the expiration of the Offeree Option Period, the
Offeree Group shall for all purposes be conclusively deemed to have
declined to purchase the Offered Projects listed in such Offering
Notice. If the Offeree Group elects to purchase all of the Offered
Projects, the Offeree Group shall deliver to a mutually acceptable
escrow agent, a nonrefundable deposit in an amount equal to 5% of the
aggregate Offer Price for the Offered Projects (the "Offeree
Deposit"); in such case, the Offeree Reply Notice shall not be deemed
delivered until such time as the escrow agent has received the Offeree
Deposit. The Offeror Group and the Offeree Group shall endeavor to
structure any sale of the Offered Projects to the Offeree Group in a
tax efficient manner.
(c) If, with respect to an Offering Notice, the Offeree
Group elects to purchase the Offered Projects, the closing of the
purchase of such Offered Projects (the "Closing") will be held on a
date selected by the Offeree Group upon five Business Days' notice to
the Offeror Group but no later than 90 days after the Offeror Group's
receipt of the Offeree Reply Notice (the "Outside Purchase Date").
Each Closing shall be held in New York City at a location designated
by the General Partner in the Offeror Group. At the Closing, the
Partnership (or the Property Partnership, as applicable) shall execute
such transfer documents as the Offeree Group shall reasonably require
to transfer the Offered Projects to the Offeree Group, as is, where
is, and the Offeree Group shall pay to the Offeror Group, in
immediately available funds, the aggregate Offeror Price for all of
the Offered Projects listed in such Offering Notice. To the extent
the execution by a member or Affiliate of a member of the Offeree
Group is required on behalf of the Partnership or Property
Partnership, each member or Affiliate of a member of the Offeree Group
shall promptly execute and deliver any such document or instrument,
and each Partner of the Offeree Group hereby constitutes and appoints
each Partner in the Offeror Group its attorney in fact to execute,
acknowledge and deliver any such documents or instruments in its
stead.
(d) An Offeree Reply Notice shall be an irrevocable binding
obligation of the Offeree Group. If the Offeree Group elects in an
Offeree Reply Notice to purchase the Offered Projects, and the Offeree
Group fails to purchase
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such Offered Projects by the applicable Offeree Outside Purchase Date,
(i) the Offeree Group shall immediately forfeit all of its rights
under this Section 3.12 with respect to any Projects, including
without limitation the right to send out Offering Notices with respect
to any Projects, (ii) the Offeror Group shall be entitled to retain
the Offeree Deposit as liquidated damages, and (iii) the Offeror Group
shall be entitled to exercise any and all other remedies available at
law and equity, including specific performance since the parties
hereto recognize that damages alone would be inadequate.
(e) With respect to an Offering Notice, if the Offeree Group
declines (or is deemed to have declined) to purchase the Offered
Projects listed therein, the Offeror Group shall have the right,
without the consent of any Partner of the Offeree Group, within 90
days after the earlier of (i) the Offeror Group's receipt of an
Offeree Reply Notice in which the Offeree Group declines to purchase
the Offered Projects, and (ii) the expiration of the Offeree Option
Period (such 90 day period, the "Sale Option Period"), to cause the
sale of any or all of the Offered Projects listed in such Offering
Notice (including the sale to any member of the Offeror Group). Each
Partner of the Offeree Group shall promptly execute and deliver any
document or instrument the Offeror Group reasonably requires in order
to consummate the sale of such Offered Projects during the Sale Option
Period, and each Partner of the Offeree Group hereby constitutes and
appoints each Partner in the Offeror Group its attorney in fact to
execute, acknowledge and deliver any such documents or instruments in
its stead. Notwithstanding the foregoing, the Offeror Group shall not
be entitled to cause the sale of an Offered Project during the Sale
Option Period for a sales price of less than 90% of the Offer Price
for such Offered Project listed in such Offering Notice (or 100% of
the Offer Price for such Offered Project if the purchaser is any
member of the Offeror Group or any affiliate of any member of the
Offeror Group). If an Offered Project is not sold prior to the
expiration of the Sale Option Period, the Offeror Group may not cause
the sale of such Offered Project without again complying with all of
the provisions of this Section (unless all of the other Partners
consent). No Partner may exercise its rights under this Section with
respect to any particular Project more than once in any twelve month
period (but such Partner may exercise its rights under this Section
with respect to other Projects). The Offeror Group and the Offeree
Group shall endeavor to structure any sale of the Offered Projects to
the Offeror Group (or any member thereof) in a tax efficient manner.
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ARTICLE IV
Other Activities Permitted
Except as expressly provided hereunder, this Agreement shall
not be construed in any manner to preclude any Partner or any of its Affiliates
from engaging in any activity whatsoever permitted by applicable law (whether
or not such activity might compete, or constitute a conflict of interest, with
the Partnership), including, without limitation, the provision of financial or
investment advisory services to any person, managing investments or receiving
compensation or profit from any of the foregoing.
ARTICLE V
Capital Contributions; Distributions
SECTION 5.1 Capital Contributions. (a) No Partner shall
be required to make a Capital Contribution except as provided in this Section.
Each Partner agrees to make Capital Contributions (i) as required by this
Agreement, including, without limitation, Sections 3.6, 3.9, 3.10 and 5.7 of
this Agreement, (ii) to pay for costs and expenses under approved budgets and
for fees, costs and expenses specifically payable by the Partnership pursuant
to this Agreement or (iii) in the event that the General Partners determine
that the Partnership requires additional funds to meet its then existing
obligations, including to cover operating shortfalls, and funds are not
otherwise available from Partnership revenues or from loans to the Partnership
for such purposes. Each of the Partners shall be required to make Capital
Contributions to the Partnership in accordance with such Partner's Sharing
Percentage (as determined in accordance with Section 3.6(f) above); provided
that, except for amounts to be contributed under clause (iii) above (for which
no limit shall apply), the aggregate amount of Capital Contributions made by
the Blackstone Partners hereof and by the Blackstone Partners in the Parallel
Partnerships shall not exceed $29,400,000, and the aggregate amount of Capital
Contributions made by the Interstate Partners hereof and by the Interstate
Partners in the Parallel Partnerships shall not exceed $30,600,000. It is
understood and agreed that the commitment by the Blackstone Partners and the
Interstate Partners to fund their respective Committed Capital is not revolving
in nature and at such time as the date such Partner's Committed Capital shall
have been funded in full, such commitment will expire and be of no further
force or effect.
(b) No Partner shall have any obligation to restore any
negative balance in the Partner's Capital Account upon
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liquidation of the Partnership. No Partner shall be entitled to withdraw all or
any part of its Capital Contributions except as expressly provided in this
Partnership Agreement. No interest shall be payable by the Partnership on the
Capital Contributions of any Partner except as otherwise provided herein. In no
event shall any Partner be entitled to demand any property from the Partnership
other than cash.
(c) When Capital Contributions are required under
paragraph (a) above from the Partners, the General Partners shall give notice
to all of the Partners of the amount of funds required and the date such funds
shall be due, which due date shall be, unless otherwise provided in this
Agreement, no less than 10 Business Days from the date such notice is given.
SECTION 5.2 Partner Loans for Failure to Fund Committed
Capital. If any Partner shall fail to timely make a Capital Contribution
required in Section 5.1 (such Partner is hereinafter referred to as a
"Non-Contributing Partner") and such default is not cured within 10 days of the
date such Capital Contribution was due, then any other Partner (a "Contributing
Partner") may fund all or part of such Capital Contribution and, unless the
Contributing Partner otherwise elects the remedy of the dilution of such
Non-Contributing Partner's Interest in the Partnership as set forth in Section
5.3 below, any amounts funded by a Contributing Partner on behalf of a
Non-Contributing Partner shall be made directly to the Partnership but shall be
treated as (i) a recourse demand loan made by the Contributing Partner to the
Non-Contributing Partner (bearing interest at a fluctuating rate of interest
equal to 10% per annum in excess of the prime rate of interest publicly
announced by Citibank, N.A. from time to time, but not less than 15% per annum,
but in no event in excess of the maximum rate permitted by applicable law),
followed by (ii) a Capital Contribution by such Non-Contributing Partner to the
Partnership. Any such recourse loan (to the extent of unpaid principal and
interest) shall be payable on demand by the Contributing Partner and shall be
repaid directly by the Partnership on behalf of the Non-Contributing Partner to
the Contributing Partner from Non-Capital Proceeds and Capital Proceeds
otherwise distributable to the Non-Contributing Partner. Amounts paid directly
by the Partnership to the Contributing Partner on account of the loan shall be
deemed distributions to the Non-Contributing Partner. Any Non-Capital Proceeds
and Capital Proceeds used to repay such loan shall be applied first to interest
and then to principal thereof.
SECTION 5.3 Dilution for Failure to Fund Capital. (a) If
a Non-Contributing Partner fails to contribute any amounts required to be
contributed pursuant to Section 5.1 above as and when required to be
contributed and such funds are contributed to the Partnership by a Contributing
Partner, the Non-Contributing Partner's Sharing Percentage shall be, if the
Contributing Partner elects to apply the provisions of this Section 5.3 in lieu
of the loan mechanism provided in Section
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5.2, adjusted pursuant to Section 5.3(b) below as of the day on which the
Contributing Partner contributes such funds. In such an event the contribution
of such funds shall be treated as a Capital Contribution to the Partnership by
the Contributing Partner.
(b) The Sharing Percentage of a Non-Contributing Partner
may be reduced (but not below zero), upon the election described in Section
5.3(a) above, by an amount equal to the product of (i) 1.6 times (ii) a
fraction expressed as a percentage, (A) the numerator of which is the amount of
the Capital Contribution which such Non-Contributing Partner fails to
contribute and (B) the denominator of which is the aggregate of the Capital
Contributions made by the Partners up to and including such time, including the
Capital Contribution which such Non-Contributing Partner fails to make. The
Sharing Percentage of the Contributing Partner shall be increased by the amount
of the reduction in the Sharing Percentage of the Non- Contributing Partner.
Notwithstanding the foregoing, if within 90 days after the reduction of the
Non-Contributing Partner's Sharing Percentage described herein, the
Non-Contributing Partner pays to the Contributing Partner the amount which the
Non- Contributing Partner failed to contribute and such Contributing Partner
contributed, together with interest thereon (at a rate equal to 10% per annum
in excess of the prime rate of interest publicly announced by Citibank, N.A.
from time to time, but not less than 15% per annum, and in no event in excess
of the maximum rate permitted by applicable law), the Non-Contributing
Partner's Sharing Percentage and the Contributing Partner's Sharing Percentage
shall be reinstated as if the Non-Contributing Partner had timely made such
Capital Contribution.
SECTION 5.4 Distributions Generally. Capital Proceeds
shall be distributed as soon as practicable but in any event within 45 days
after the date that such Proceeds are received by the Partnership. Non-Capital
Proceeds shall be distributed at such times and intervals as the General
Partners shall determine, but in no event later than 30 days after the end of
each calendar quarter. The Partnership shall make such distributions in cash
among the Partners in accordance with this Article V.
SECTION 5.5 Distributions of Proceeds.
(a) Each distribution of Non-Capital Proceeds from a
Project shall be made to the Partners to the extent of, and pro rata in
accordance with, each of their Sharing Percentages (as the same may be adjusted
hereunder). Notwithstanding the foregoing, Non-Capital Proceeds from a Project
otherwise distributable to a Blackstone Partner shall be distributed as
follows:
(i) First, 100% to such Blackstone Partner until such
Blackstone Partner has received cumulative Proceeds from
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such Project in an amount equal to the Capital Contributions made by
such Partner with respect to such Project; and
(ii) Second, 100% to such Blackstone Partner until such
Blackstone Partner has received cumulative Proceeds from such Project,
in excess of any amounts distributed under Section 5.5(a)(i) above, in
an amount which generates a 20% Internal Rate of Return on the Capital
Contributions made by such Partner with respect to such Project; and
(iii) Thereafter, 86.532% to such Blackstone Partner and
13.468% to the Interstate Partners (pro rata in accordance with their
Sharing Percentages).
(b) Each distribution of Capital Proceeds from a Project
shall be made to the Partners to the extent of, and pro rata in accordance
with, each of their Sharing Percentages (as the same may be adjusted
hereunder). Notwithstanding the foregoing, Capital Proceeds from a Project
otherwise distributable to a Blackstone Partner shall be distributed as
follows:
(i) First, 100% to such Blackstone Partner until such
Blackstone Partner has received cumulative Proceeds from (x) all
Projects which have been subject to a Disposition on or prior to the
date of such distribution and (y) all Projects for which an Unrealized
Loss exists on such date, in an amount equal to the sum of the Capital
Contributions made by such Partner as of such date with respect to all
Projects which have been subject to a Disposition on or prior to such
date; and
(ii) Second, 100% to such Blackstone Partner until such
Blackstone Partner has received cumulative Proceeds from (x) all
Projects which have been subject to a Disposition on or prior to the
date of such distribution and (y) all Projects for which an Unrealized
Loss exists on such date, in excess of any amounts distributed under
Section 5.5(b)(i) above, in an amount which generates a 20% Internal
Rate of Return on the Capital Contributions made by such Partner as of
such date with respect to all Projects which have been subject to a
Disposition on or prior to such date and all Projects for which an
Unrealized Loss exists on such date; and
(iii) Third, 100% to such Blackstone Partner until such
Blackstone Partner has received cumulative Proceeds from (x) all
Projects which have been subject to a Disposition on or prior to the
date of such distribution and (y) all Projects for which an Unrealized
Loss exists on such date, in excess of any amounts distributed under
Sections 5.5(b)(i) and (ii) above, in an amount equal to the total of
such Partner's pro rata shares of Unrealized Loss from all Projects
for which an Unrealized Loss exists on such date (based on such
Partner's Sharing Percentage); and
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(iv) Thereafter, 86.532% to such Blackstone Partner and
13.468% to the Interstate Partners (pro rata in accordance with their
Sharing Percentages).
SECTION 5.6 Restricted Payments. Notwithstanding any
provisions to the contrary in this Agreement, neither the Partnership nor the
General Partners on behalf of the Partnership shall make a distribution if such
distribution would violate the Partnership Act.
SECTION 5.7 Partnership Expenses. (a) Promptly after the
date of this Agreement, the Partnership, to the extent it does not pay such
costs and expenses directly, will reimburse each Partner for Organizational
Expenses incurred by such Partner.
(b) The following expenses shall be borne by the
Partnership:
(i) To the extent not reimbursed, all expenses (other
than any Partner's overhead) reasonably incurred in the operation of
the Partnership (and approved by the General Partners if required
hereunder), including without limitation, any taxes imposed on the
Partnership, fees and expenses for attorneys and accountants, the
costs and expenses of any insurance purchased by the Partnership, and
the costs and expenses of any litigation involving the Partnership and
the amount of any judgments or settlements paid in connection
therewith; and
(ii) All third party professional services which have
been approved by the General Partners and incurred in connection with
a proposed Target Investment that is not ultimately made or a proposed
disposition of a Project which is not actually consummated, including,
without limitation, (i) commitment fees that become payable in
connection with a proposed Target Investment that is not ultimately
made, (ii) legal fees, accounting fees and other third party
professional due diligence costs and expenses and (iii) all travel and
similar out of pocket costs and expenses of employees of the Partners
in connection with approved due diligence.
Partnership expenses shall be paid directly by the
Partnership or the Partnership shall reimburse the Partner who incurred such
expenses for the payment thereof, as the case may be.
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ARTICLE VI
Books and Reports; Tax Matters;
Capital Accounts; Allocations
SECTION 6.1 General Accounting Matters. (a) Allocations of
Net Income (Loss) pursuant to Section 6.4 shall be made by or under the
direction of the General Partners at the end of each Fiscal Period.
(b) Each Partner shall be supplied with the Partnership
information necessary to enable such Partner to prepare in a timely manner its
Federal, state and local income tax returns and such other financial or other
statements and reports that are approved by the General Partners.
(c) The Blackstone General Partner shall keep or cause
to be kept books and records pertaining to the Partnership's business showing
all of its assets and liabilities, receipts and disbursements, realized profits
and losses, Partners' Capital Accounts and all transactions entered into by the
Partnership. Such books and records of the Partnership shall be kept at the
office of the Blackstone General Partner and the Partners and their
representatives shall at all reasonable times have free access thereto for the
purpose of inspecting or copying the same. The Partnership's books of account
shall be kept on an accrual basis or as otherwise provided by the General
Partners, and otherwise in accordance with generally accepted accounting
principles, except that for income tax purposes such books shall be kept in
accordance with applicable tax accounting principles.
(d) Except as otherwise provided herein, all
determinations, valuations and other matters of judgment required to be made
for accounting and tax purposes under this Agreement shall be made by or under
the direction of the General Partners and shall be conclusive and binding on
all Partners, former Partners, their successors or legal representatives and
any other person except for computational errors or fraud, and to the fullest
extent permitted by law no such person shall have the right to an accounting or
an appraisal of the assets of the Partnership or any successor thereto except
for computational errors or fraud.
(e) The books of the Partnership shall be examined,
certified and audited annually as of the end of each Fiscal Year, by such
recognized firm of independent certified public accountants that is designated
by the General Partners. For each Fiscal Year of the Partnership, such
accountants shall determine and prepare full financial statements, including,
without limitation, a balance sheet, an income statement, a statement of
changes in financial position and a statement of the Non-Capital Proceeds and
Capital Proceeds of the Partnership. The General Partners shall promptly upon
receipt of such financial statements, and in any event within 90 days after the
end of each
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such Fiscal Year, transmit copies thereof to each Partner, together with the
report and management letter of such accountants covering the results of such
audit. The cost of all audits and reports provided to the Partners pursuant to
this Section shall be an expense of the Partnership.
SECTION 6.2 Certain Tax Matters.
The taxable year of the Partnership shall be the same as its
Fiscal Year. The Tax Matters Partner (as defined below) shall cause to be
prepared all Federal, state and local tax returns of the Partnership for each
year for which such returns are required to be filed and, after approval of
such returns by the General Partners, shall cause such returns to be timely
filed. The General Partners shall determine the appropriate treatment of each
item of income, gain, loss, deduction and credit of the Partnership and the
accounting methods and conventions under the tax laws of the United States, the
several states and other relevant jurisdictions as to the treatment of any such
item or any other method or procedure related to the preparation of such tax
returns. The Tax Matters Partner shall make the election provided for in
Section 754 of the Code, if, and only if the Partner who or which has acquired
an interest in the Partnership or a distribution of Partnership property with
respect to which the election is made will have provided to the Tax Matters
Partner concurrently, or within 30 days after the Transfer of such interest,
its undertaking to the effect that it, and its successors in interest
hereunder, will reimburse the Partnership annually for its additional
administrative costs incurred by reason of such election as determined by the
auditor of the Partnership. The Tax Matters Partner shall also make the
election to amortize Organizational Expenses pursuant to Code Section 709 and
the regulation promulgated thereunder. In addition, the General Partners may
cause the Partnership to make or refrain from making any and all other
elections permitted by the tax laws of the United States, the several states
and other relevant jurisdictions. The Tax Matters Partner for purposes of
Section 6231(a)(7) of the Code (the "Tax Matters Partner") shall be the
Blackstone General Partner. The Tax Matters Partner shall have all of the
rights, duties, powers and obligations provided for in Sections 6221 through
6232 of the Code with respect to the Partnership provided, however, that the
following provisions shall apply with respect to the Tax Matters Partner:
(a) The Tax Matters Partner shall be responsible for the
filing of the Partnership information returns required under Section
6031 of the Code. Within thirty (30) days after the end of each
Fiscal Year, the Tax Matters Partner shall furnish to the
Partnership's accountants sufficient information for the preparation
of all required Partnership tax returns.
(b) A Partner shall provide notice to the Tax Matters Partner
of its intent to file an original or an amended
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income tax return of which such Partner will take a position with
respect to a partnership item that is inconsistent with the position
taken by the Tax Matters Partner on the Partnership return. Such
notice must be given at least thirty (30) days prior to the filing of
such return. At such time, such Partner shall provide the Tax Matters
Partner with a statement detailing the inconsistent item or items
contained in such return. Within ten (10) days of receipt of such
statement, the Tax Matters Partner shall provide a copy of such
statement to each Partner.
(c) The Tax Matters Partner shall include in each Partnership
return sufficient information to entitle each eligible Partner and any
indirect partner (at its request) to notice from the Internal Revenue
Service pursuant to Section 6223(a) of the Code.
(d) Each Partner reserves the right to participate in an
audit proceeding.
(e) Each Partner reserves the right to enter into a separate
settlement agreement with the Internal Revenue Service. A Partner who
enters into a settlement agreement with the Internal Revenue Service
concerning a partnership item shall notify the Tax Matters Partner of
its terms within ten (10) days of such agreement, and the Tax Matters
Partner shall notify the other Partners of the terms of such agreement
within ten (10) days after receiving such notice. The Tax Matters
Partner shall notify each other Partner of the terms of any settlement
offer received by it within ten (10) days of receiving such offer.
(f) The Tax Matters Partner shall not file an administrative
adjustment request without the Consent of all of the General Partners.
Each Partner, other than the Tax Matter partner, reserves the right to
file an administrative adjustment request under Section 6227 of the
Code. Any Partner filing an administrative adjustment request shall
notify the Tax Matters Partner of its contents within ten (10) days
after filing such request. The Tax Matters Partner shall notify each
Partner of the contents of such request within ten (10) days of the
receipt of such notice.
(g) All Partners shall report to the Tax Matters Partner the
conversion of a partnership item to a nonpartnership item under
Section 6231(b) or any other provision of the Code within ten (10)
days of learning of the conversion.
(h) Each Partner reserves the right to file a petition for
judicial review and to participate in a judicial proceeding under
Section 6226 and 6228 of the Code. If the Tax Matters Partner files a
petition for judicial review or an appeal under Section 6226 of the
Code, it shall notify
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each Partner of such petition or appeal within ten (10) days of such
filing. Any other Partner filing a petition for judicial review or
any appeal under Sections 6226 or 6228 of the Code shall notify the
Tax Matters Partner of such petition or appeal on or before the date
of filing. The Tax Matters Partner shall notify each Partner of such
filing within ten (10) days of receipt of such notice from the filing
partner.
(i) The Tax Matters Partner shall not agree to extend the
statute of limitations for assessment without the Consent of all of
the General Partners.
(j) The Tax Matters Partner shall be authorized to incur
expenses in the performance of its duties pursuant to this Agreement.
Notwithstanding any other provision of this Agreement, such expenses
shall be borne by the persons who were Partners of the Partnership at
any time during the applicable taxable year without regard to whether
such persons are Partners at the time the expense is incurred. Such
expenses shall be allocated to the Partners and former Partners having
an interest in the proceeding at the time the cost is incurred in
proportion to their relative Sharing Percentages for the applicable
taxable year.
(k) The provisions of this Section shall govern the conduct
of all parties who are currently Partners and all parties who were
Partners during the applicable Partnership taxable year. A Partner
shall not be relieved of any duties or responsibilities imposed under
this Section by the termination or transfer of its interest in the
Partnership.
(l) All terms used in this Section that are defined in
Section 6231(a) of the Code shall have the meanings set forth therein.
SECTION 6.3 Capital Accounts. There shall be
established for each Partner on the books of the Partnership as of the date
hereof, or such later date on which such Partner is admitted to the
Partnership, a capital account (each being a "Capital Account"). Each Capital
Contribution shall be credited to the Capital Account of such Partner on the
date such contribution of capital is paid to the Partnership. In addition,
each Partner's Capital Account shall be (a) credited with such Partner's
allocable share of any Net Income of the Partnership, (b) debited with (i)
distributions to such Partner of cash or the fair market value of other
property and (ii) such Partner's allocable share of Net Loss of the Partnership
and expenditures of the Partnership described or treated under Section 704(b)
as described in Section 705(a)(2)(B) of the Code, and (c) otherwise maintained
in accordance with the provisions of the Code. Any other item which is
required to be reflected in a Partner's Capital Account under Section 704(b) of
the Code or otherwise under this Agreement shall be so reflected. Capital
Accounts
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shall be appropriately adjusted to reflect transfers of part (but not all) of a
Partner's interest in the Partnership. Interest shall not be payable on Capital
Account balances. Notwithstanding anything to the contrary contained in this
Agreement, the Partnership shall maintain the Capital Accounts of the Partners
in accordance with the principles and requirements set forth in section 704(b)
of the Code and Regulations section 1.704-1(b)(2)(iv).
SECTION 6.4 Allocations. (a) Net Income of the
Partnership shall be allocated to the Partners having deficit balances in their
Capital Accounts (computed after taking into account distributions pursuant to
Section 5.5 with respect to such fiscal year, and after adding back each
Partner's share of partnership Minimum Gain and Partner Nonrecourse Debt
Minimum Gain, determined pursuant to Regulations sections 1.704-2(g)(1) and
1.704-2(i)(5)) in proportion to, and to the extent of, such deficits. Any
remaining Net Income and all Net Loss shall be allocated among the Partners
either 49% to the Blackstone Partners (pro rata in proportion to their Sharing
Percentages) and 51% to the Interstate Partners (pro rata in accordance with
their Sharing Percentages) or [______]% to the Blackstone Partners (pro rata in
proportion to their Sharing Percentages) and [_____]% to the Interstate
Partners pro rata in accordance with their Sharing Percentages) so as to
produce to the extent possible 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 5.5 and to the extent Net
Loss exceeds the positive Adjusted Capital Account Balances of the Partners,
the excess shall be allocated first, to those Partners with positive Adjusted
Capital Account Balances, in proportion to, and to the extent of, such Adjusted
Capital Account Balances, and thereafter, to the General Partners, in the ratio
that the Sharing Percentage of each General Partner bears to the Sharing
Percentage of all General Partners. Notwithstanding the foregoing, if an
allocation of Net Loss in the ratio of [______]% to the Blackstone Partners and
[______]% to the Interstate Partners is in excess of amounts of Net Income
previously allocated in the ratio of [______]% to the Blackstone Partners and
[______]% to the Interstate Partners, then such allocation of Net Loss shall
instead be made 49% to the Blackstone Partners (pro rata in proportion to their
Sharing Percentages) and 51% to the Interstate Partners (pro rata in accordance
with their Sharing Percentages). Notwithstanding the foregoing, if an
allocation of Net Income or Net Loss would not result in Capital Accounts for
the Partners (computed in the manner set forth in the first sentence of this
paragraph (a)) being equal to cash distributions in the amounts, sequence and
priority set forth in Section 5.5, Net Income may be allocated 100% to the
Interstate Partners (pro rata in accordance with their Sharing Percentages) or
Net Loss may be allocated 100% to the Blackstone Partners (pro
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rata in accordance with their Sharing Percentages) if (and to the extent
necessary) to produce Capital Accounts equal (or in proportion) to the cash
distributions set forth in Section 5.5.
(b) Notwithstanding anything herein to the contrary, in
the event any Partner unexpectedly receives any adjustments, allocations or
distributions described in paragraphs (b)(2)(ii)(d)(4), (5) or (6) of Section
1.704-1 of the regulations under the Code, there shall be specially allocated
to such Partner such items of Partnership income and gain, at such times and in
such amounts as will eliminate as quickly as possible that portion of any
deficit in its Capital Account caused or increased by such adjustments,
allocations or distributions. To the extent permitted by the Code and the
regulations thereunder, any special allocations of items of income or gain
pursuant to this Section 6.4(c) shall be taken into account in computing
subsequent allocations of Net Income (Loss) pursuant to this Section 6.4 so
that the net amount of any items so allocated and the subsequent allocations of
Net Income (Loss) to the Partners pursuant to this Section 6.4 shall, to the
extent possible, be equal to the net amounts that would have been allocated to
each such Partner pursuant to the provisions of this Section 6.4 if such
unexpected adjustments, allocations or distributions had not occurred.
(c) All items of income, gain, loss, deduction and
credit of the Partnership shall be allocated among the Partners for Federal,
state and local income tax purposes consistent with the manner that the
corresponding constituent items of Net Income (Loss) shall be allocated among
the Partners pursuant to this Agreement, except as may otherwise be provided
herein or by the Code. To the extent Treasury Regulations promulgated pursuant
to Subchapter K of the Code (including under Sections 704(b) and (c) of the
Code) require allocations for tax purposes that differ from the foregoing
allocations, the General Partners may determine the manner in which such tax
allocations shall be made so as to comply more fully with such Treasury
Regulations or other applicable law and, at the same time to the extent
reasonably possible, preserve the economic relationships among the Partners as
set forth in this Agreement.
(d) Notwithstanding the provisions of this Section 6.4,
net income, net gain, and net loss of the Partnership (or items of income,
gain, loss, deduction, or credit, as the case may be) shall be allocated in
accordance with the following provisions of this Section 6.4 to the extent such
provisions shall be applicable.
(i) Nonrecourse Deductions of the Partnership for any
Fiscal Year shall be specially allocated to the Partners in the same
proportion as Net Income or Net Loss is allocated for such Fiscal
Year; provided that if an allocation of Nonrecourse Deductions in the
ratio of [______]% to the Blackstone Partners and [______]%
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to the Interstate Partners is in excess of amounts of Net Income
previously allocated in the ratio of [______]% to the Blackstone
Partners and [______]% to the Interstate Partners, then such
allocation of Nonrecourse Deductions shall instead be made 49% to the
Blackstone Partners (pro rata in proportion to their Sharing
Percentages) and 51% to the Interstate Partners (pro rata in
accordance with their Sharing Percentages). Partner Nonrecourse
Deductions of the Partnership for any Fiscal Year shall be specially
allocated to the Partner who bears the economic risk of loss for the
liability in question. The provisions of this Section 6.4(e)(i) are
intended to satisfy the requirements of Regulations sections
1.704-2(e)(2) and 1.704-2(i)(1) and shall be interpreted in accordance
therewith for all purposes under this Agreement.
(ii) If there is a net decrease in the Minimum Gain of
the Partnership during any Partnership Fiscal Year, each Partner shall
be specially allocated items of Partnership income and gain for such
year equal to that Partner's share of the net decrease in Minimum
Gain, within the meaning of Regulations section 1.704- 2(g)(2). The
provisions of this Section 6.4(e)(ii) are intended to comply with the
Minimum Gain chargeback requirements of Regulations section 1.704-2(f)
and shall be interpreted in accordance therewith for all purposes
under this Agreement.
(iii) If there is a net decrease in Partner Nonrecourse
Debt Minimum Gain during any Fiscal Year, each Partner that has a
share of such partner Nonrecourse Debt Minimum Gain, determined in
accordance with Regulations section 1.704-2(i)(5), as of the beginning
of such year shall be specially allocated items of Partnership income
and gain for such year (and, if necessary, for succeeding years) equal
to such Partner's share of the net decrease in Partner Nonrecourse
Debt Minimum Gain. The provisions of this Section 6.4(e)(iii) are
intended to comply with the Partner Nonrecourse Debt Minimum Gain
chargeback requirement of Regulations section 1.704-2(i)(4) and shall
be interpreted in accordance therewith for all purposes under this
Agreement.
ARTICLE VII
Dissolution
SECTION 7.1 Dissolution. The Partnership shall be
dissolved and subsequently terminated upon the occurrence of the first of the
following events:
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(a) decision of all of the General Partners to dissolve
and subsequently terminate the Partnership;
(b) December 31, 2045;
(c) the occurrence of a Disabling Event with respect to
the sole remaining General Partner, provided that the Partnership
shall not be dissolved if, within 90 days after such Disabling Event,
all of the Partners agree in writing to continue the business of the
Partnership and to the appointment, effective as of the date of the
Disabling Event, of another General Partner; or
(d) if, after the right of first opportunity under
Article 3 shall no longer be in effect, all of the Partnership Assets
are sold or otherwise disposed of.
SECTION 7.2 Winding-up. When the Partnership is dissolved,
the business and property of the Partnership shall be wound up and liquidated
by the General Partners or, in the event of a Disabling Event with respect
to any General Partner, by the remaining General Partners or, in the event
of a Disabling Event with respect to each of the General Partners, such
liquidating trustee as may be named by Limited Partners holding a majority
of the Sharing Percentages held by all Limited Partners (the party conducting
the liquidation being hereinafter referred to as the "Liquidator"). The
Liquidator shall use its best efforts to reduce to cash and cash equivalent
items such assets of the Partnership as the Liquidator shall deem it advisable
to sell, subject to obtaining fair value for such assets and any tax or other
legal considerations.
SECTION 7.3 Final Distribution. Within 90 calendar days
after the effective date of dissolution of the Partnership, the assets of the
Partnership shall be distributed in the following manner and order:
(a) to the payment of the expenses of the winding-up,
liquidation and dissolution of the Partnership;
(b) to pay all creditors of the Partnership, other than
Partners, either by the payment thereof or the making of reasonable
provision therefor;
(c) to establish reserves, in amounts established by the
Liquidator, to meet other liabilities of the Partnership; and
(d) to pay, in accordance with the provisions of this
Agreement applicable to such loans or in accordance with the terms
agreed among them and otherwise on a pro rata basis, all creditors of
the Partnership that are Partners, either by the payment thereof or
the making of reasonable provision therefor.
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The remaining assets of the Partnership shall be applied and
distributed in accordance with the positive balances of the
Partners' Capital Accounts, as determined after taking into
account all adjustments to Capital Accounts for the Partnership
taxable year during which the liquidation occurs.
ARTICLE VIII
Transfer of Partners' Interests
SECTION 8.1 Restrictions on Transfer of Partnership
Interests. (a) No Partner may, directly or indirectly, assign, sell,
exchange, transfer, pledge, hypothecate or otherwise dispose of all or any part
of its interest in the Partnership (a "Transfer") to any person, other than in
accordance with paragraphs (b), (c), (d), (e) and (f) below. A change in the
ultimate beneficial ownership of a Partner shall be deemed a Transfer for
purposes of this Agreement.
(b) Any Partner may Transfer all or part of its interest
in the Partnership to any person upon obtaining the prior written Consent of
the Blackstone General Partner, which Consent may be withheld in its sole and
absolute discretion; provided, however, that upon any Transfer of a Partner's
interest in accordance with this paragraph, the person (the "Transferee") to
whom the Partner's interest was Transferred shall not be admitted as a
substitute Partner without receiving the prior written Consent of the
Blackstone General Partner (which Consent may be withheld in its sole and
absolute discretion) and the Transferee has given written acceptance and
adoption of all of the terms and provisions of this Agreement; and provided,
further, that the prior written Consent of each of the General Partners shall
be required to admit the Transferee as a substitute Partner (which Consent may
be withheld in their sole and absolute discretion) (i) if the Transferee is not
an Affiliate of any member of the Blackstone Group or the Interstate Group, or
(ii) if the aggregate Sharing Percentages of the Interstate Partners is 20% or
less at the time of the Transfer.
(c) A Partner may mortgage, pledge, hypothecate or
otherwise encumber all or any portion of such Partner's rights to receive a
portion of the Non-Capital Proceeds, Capital Proceeds, Net Income and Net
Losses to any person; provided, however, that the holder of such mortgage,
pledge, hypothecation or encumbrance shall not be admitted as a substitute
Partner without the prior Consent of the Blackstone General Partner (which
Consent may be withheld in its sole and absolute discretion), provided that (i)
if the Transferee is not an Affiliate of any member of the Blackstone Group or
the Interstate Group or (ii) if the aggregate Sharing Percentages of the
Interstate Partners is 20% or less at the time of the Transfer, the prior
written Consent of each of the General Partners shall be required, which
Consent may be withheld in their sole and absolute discretion.
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(d) At any time, any Blackstone Partner may transfer its
interest in Non-Capital Proceeds, Capital Proceeds, Net Income and Net Losses
to any other Blackstone Partner or its Affiliates but the Transferee shall not
be admitted as a substitute Partner and the transferor shall not be permitted
to withdraw from the Partnership without, in each case, the Consent of the
Blackstone General Partner (which Consent may be withheld in its sole and
absolute discretion), or, if the aggregate Sharing Percentages of the
Interstate Partners is 20% or less at the time of the Transfer, the Consent of
each of the General Partners (which Consent may be withheld in their sole and
absolute discretion).
(e) At any time, any Interstate Partner may transfer its
interest in Non-Capital Proceeds, Capital Proceeds, Net Income and Net Losses
to any other Interstate Partner or their Affiliates, but the Transferee shall
not be admitted as a substitute Partner and the transferor shall not be
permitted to withdraw from the Partnership without, in each case, the Consent
of the Blackstone General Partner (which Consent may be withheld in its sole
and absolute discretion).
(f) At any time, the ultimate beneficial ownership of a
Partner may be changed without any requirement for Consent hereunder, provided
that day to day management of such Partner is, at all times thereafter,
directly or indirectly controlled by the Blackstone General Partner or an
Affiliate thereof or by the Interstate General Partner or an Affiliate thereof.
SECTION 8.2 Other Transfer Provisions. (a) Any purported
Transfer by a Partner of all or any part of its interest in the Partnership in
violation of this Article VIII shall be null and void and of no force or
effect.
(b) Except as provided in this Article VIII, no Partner
shall have the right to withdraw from the Partnership prior to its termination
and no additional Partner may be admitted to the Partnership without the prior
written consent of the General Partners. In the event of any withdrawal of a
General Partner in violation of this Agreement, including as a result of a
Disabling Event, such General Partner shall be liable to the Partnership as
provided in Section 17-602 of the Partnership Act.
(c) Notwithstanding any provision of this Agreement to
the contrary, a Partner may not Transfer all or any part of its interest in the
Partnership if such Transfer would jeopardize the status of the Partnership as
a partnership for federal income tax purposes, cause a dissolution of the
Partnership under the Partnership Act or would violate, or would cause the
Partnership to violate, any applicable law or regulation (including any
applicable federal or state securities laws) or contract to which the
Partnership is a party.
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(d) Concurrently with the admission of any substitute or
additional Partner, the General Partners shall forthwith cause any necessary
papers to be filed and recorded and notice to be given wherever and to the
extent required showing the substitution of a Transferee as a substitute
Partner in place of the Partner Transferring its interest, or the admission of
an additional Partner, all at the expense, including payment of any
professional and filing fees incurred, of such substituted or additional
Partner. The admission of any person as a substitute or additional Partner
shall be conditioned upon such person's written acceptance and adoption of all
the terms and provisions of this Agreement.
(e) If any interest in the Partnership is Transferred
during any accounting period in compliance with the provisions of this Article
VIII, each item of income, gain, loss, expense, deduction and credit and all
other items attributable to such interest for such period shall be divided and
allocated between the transferor and the transferee by taking into account
their varying interests during such period in accordance with Section 706(d) of
the Code, using any conventions permitted by law and selected by the General
Partners. All distributions on or before the date of such Transfer shall be
made to the transferor, and all distributions thereafter shall be made to the
transferee. Solely for purposes of making such allocations and distributions,
the Partnership shall recognize a Transfer on the date that the General
Partners receive notice of the Transfer which complies with this Article VIII
from the Partner Transferring its interest.
ARTICLE IX
Miscellaneous
SECTION 9.1 Equitable Relief. The Partners hereby
confirm that damages at law may be an inadequate remedy for a breach or
threatened breach of this Agreement and agree that, in the event of a breach or
threatened breach of any provision hereof, the respective rights and
obligations hereunder shall be enforceable by specific performance, injunction
or other equitable remedy, but, nothing herein contained is intended to, nor
shall it, limit or affect any right or rights at law or by statute or otherwise
of a Partner aggrieved as against the other for a breach or threatened breach
of any provision hereof, it being the intention by this Section 9.1 to make
clear the agreement of the Partners that the respective rights and obligations
of the Partners hereunder shall be enforceable in equity as well as at law or
otherwise and that the mention herein of any particular remedy shall not
preclude a Partner from any other remedy it or he might have, either in law or
in equity.
SECTION 9.2 Ownership and Use of Names. Rights to the
name "Blackstone" shall belong solely to the designated Blackstone Partners.
Rights to the name "Interstate" and
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"Interstate Hotels" shall belong solely to the designated Interstate Partners.
The ownership of, and the right to use, sell or otherwise dispose of, the name,
Interstone Three Partners I L.P. or any abbreviation or modification thereof,
shall belong to the Partnership. The Interstate General Partner agrees to take
all actions and to approve, execute and file any document or instrument proposed
by any Blackstone Partner to protect the rights of the Blackstone Partners to
the name "Blackstone". The Blackstone General Partner agrees to take all
actions and to approve, execute and file any document or instrument proposed by
any Interstate Partner to protect the rights of the Interstate Partners to the
name "Interstate" and "Interstate Hotels". The Partners each agree to take all
actions and to approve, execute and file any document or instrument proposed by
the General Partners to protect the rights of the Partnership to the name
"Interstone Three Partners I L.P.".
SECTION 9.3 Governing Law. This Agreement shall be
governed by and construed in accordance with the laws of the State of Delaware.
In particular, the Partnership is formed pursuant to the Partnership Act, and
the rights and liabilities of the General Partners and Limited Partners shall
be as provided therein, except as herein otherwise expressly provided.
SECTION 9.4 Successors and Assigns. This Agreement shall
be binding upon and shall inure to the benefit of the parties hereto, their
respective successors and assigns.
SECTION 9.5 Access; Confidentiality. By executing this
Agreement, each Partner expressly agrees, at all times during the term of the
Partnership and thereafter and whether or not at the time a Partner of the
Partnership (i) not to issue any press release or advertisement or take any
similar action concerning the Partnership's business or affairs without first
obtaining the Consent of all of the General Partners, (ii) not to publicize
detailed financial information concerning the Partnership without the Consent
of all of the General Partners and (iii) not to disclose the Partnership's
affairs generally without using reasonable efforts to consult with the other
Partners prior to such disclosure; provided, however, the foregoing shall not
restrict any Partner from disclosing information concerning such Partner's
investment in the Partnership to its officers, directors, employees, agents,
legal counsel, accountants, other professional advisors, limited partners and
Affiliates, or to prospective or existing investors in such Partner or its
Affiliates or to prospective or existing lenders to such Partner or its
Affiliates, or to prospective purchasers of any property owned by the
Partnership. The provisions of this Section 9.5 shall survive the termination
of the Partnership.
SECTION 9.6 Notices. Whenever notice is required or
permitted by this Agreement to be given, such notice need not be in writing
unless otherwise required herein or requested by the
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receiving Partner. If in writing, such notice shall be given to any Partner at
its address or facsimile number shown in the Partnership's books and records
(including Schedule A hereto). Each such notice shall be effective (i) if given
by facsimile, upon oral confirmation of receipt, (ii) if given by mail, on the
fourth day after deposit in the mails (certified or registered return receipt
requested) addressed as aforesaid and (iii) if given by any other means, when
delivered to and receipted for at the address of such Partner specified as
aforesaid.
SECTION 9.7 Counterparts. This Agreement may be executed
in any number of counterparts, all of which together shall constitute a single
instrument.
SECTION 9.8 Entire Agreement. This Agreement embodies
the entire agreement and understanding of the parties hereto in respect of the
subject matter contained herein. There are no restrictions, promises,
representations, warranties, covenants or undertakings, other than those
expressly set forth or referred to herein. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter hereof.
SECTION 9.9 Amendments. Any amendment to this Agreement
shall be effective only if such amendment is evidenced by a written instrument
duly executed by and delivered to the General Partners; provided, however, no
such amendment shall be effective or binding against a Partner unless executed
by such Partner if such amendment materially and adversely affects such Partner
in a specific manner separate and distinct from the amendment's treatment of
other Partners; and provided, further that any amendment which would have a
material adverse effect on any Partner's economic interest in the Partnership
shall require the Consent of all of the General Partners.
SECTION 9.10 Section Titles. Section titles are for
descriptive purposes only and shall not control or alter the meaning of this
Agreement as set forth in the text hereof.
SECTION 9.11 Representations and Warranties. (a) Each
Partner represents, warrants and covenants to each other Partner and to the
Partnership that:
(i) such Partner, if not a natural person, is duly
formed and validly existing under the laws of the jurisdiction of its
organization with full power and authority to conduct its business to
the extent contemplated in this Agreement;
(ii) this Agreement has been duly authorized, executed
and delivered by such Partner and constitutes the valid and legally
binding agreement of such Partner enforceable in accordance with its
terms against such Partner except as enforceability hereof may be
limited by bankruptcy,
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insolvency, moratorium and other similar laws relating to creditors'
rights generally and by general equitable principles;
(iii) the execution and delivery of this Agreement by such
Partner and the performance of its duties and obligations hereunder do
not result in a breach of any of the terms, conditions or provisions
of, or constitute a default under, any indenture, mortgage, deed of
trust, credit agreement, note or other evidence of indebtedness, or
any lease or other agreement, or any license, permit, franchise or
certificate, to which such Partner is a party or by which it is bound
or to which its properties are subject, or require any authorization
or approval under or pursuant to any of the foregoing, or violate any
statute, regulation, law, order, writ, injunction, judgment or decree
to which such Partner is subject;
(iv) such Partner is not in default (nor has any event
occurred which with notice, lapse of time, or both, would constitute a
default) in the performance of any obligation, agreement or condition
contained in any indenture, mortgage, deed of trust, credit agreement,
note or other evidence of indebtedness or any lease or other
agreement, or any license, permit, franchise or certificate, to which
it is a party or by which it is bound or to which the properties of it
are subject, nor is it in violation of any statute, regulation, law,
order, writ, injunction, judgment or decree to which it is subject,
which default or violation would materially adversely affect such
Partner's ability to carry out its obligations under this Agreement;
(v) except as disclosed to the Partners prior to the
date hereof, there is no litigation, investigation or other proceeding
pending or, to the knowledge of such Partner, threatened against such
Partner or any of its Affiliates which, if adversely determined, would
materially adversely affect such Partner's ability to carry out its
obligations under this Agreement; and
(vi) no consent, approval or authorization of, or filing,
registration or qualification with, any court or governmental
authority on the part of such Partner is required for the execution
and delivery of this Agreement by such Partner and the performance of
its obligations and duties hereunder.
(b) IHC/Interstone Partnership II, L.P. represents that
not less than 90% of its interests are owned by Interstate Hotels Company.
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IN WITNESS WHEREOF, the parties have executed this Amended
and Restated Limited Partnership Agreement of Interstone Three Partners I L.P.
as of the day and year first above written.
GENERAL PARTNERS:
BJS INTERSTONE MANAGEMENT
ASSOCIATES
By: Blackstone Real Estate Inc.,
general partner
By: ________________________
Name:
Title:
IHC/INTERSTONE CORPORATION
By: _____________________________
Name:
Title:
LIMITED PARTNERS:
BLACKSTONE REAL ESTATE
PARTNERS I L.P.
By: Blackstone Real Estate
Associates L.P., general
partner
By: BREA L.L.C., general
partner
By: _______________
Name:
Title:
IHC/INTERSTONE PARTNERSHIP II, L.P.
By: IHC Member Corporation,
general partner
By:________________________
Name:
Title:
60
SCHEDULE A
PARTNERS OF THE PARTNERSHIP
Sharing
Percentage as
General of June __,
Partners Address 1996
- - -------- --------- -------------
BJS Interstone 345 Park Avenue 0.5%
Management New York, NY 10154
Associates
IHC/Interstone c/o Interstate Hotels 0.5%
Corporation Corporation
Foster Plaza X
680 Anderson Drive
Pittsburgh, PA 15220-8126
Limited
Partners
- - --------
Blackstone Real 345 Park Avenue
Estate Partners New York, NY 10154 48.5%
I L.P.
IHC/Interstone c/o Interstate Hotels
Partnership II, Corporation
L.P. Foster Plaza X 50.5%
680 Anderson Drive
Pittsburgh, PA 15220-8126
61
EXHIBIT A
Form of Management Agreement
62
EXHIBIT B
Form of Project Partnership Agreement
63
1
EXHIBIT C
FORM OF CONFIRMATION AND ACKNOWLEDGMENT
OF RIGHT OF FIRST OPPORTUNITY
This Confirmation and Acknowledgment of Right of First
Opportunity ("Confirmation") is made and entered into as of the ____ day of
________, 19__ by and among THE BLACKSTONE GROUP HOLDINGS L.P. ("Blackstone")
and INTERSTATE HOTELS COMPANY ("Interstate").
RECITALS
A. Sections 3.6 through 3.8 of that certain Amended and
Restated Limited Partnership Agreement of Interstone Three Partners I L.P.,
dated as of the date hereof (as amended, supplemented or otherwise modified
from time to time, the "Partnership Agreement") sets forth the scope,
operation, duration, termination and other terms relating to a right of first
opportunity provided by the Blackstone Group and the Interstate Group in favor
of the Partnership with respect to certain Target Investments identified for
investment by the Blackstone Group and the Interstate Group. Except as
otherwise expressly provided herein, any defined term used in this Confirmation
shall have the meaning prescribed for that term in the Partnership Agreement.
B. The parties wish to enter into this Confirmation in order
to confirm and acknowledge their obligations to each other with respect to the
foregoing matters and any other obligations each may have to the other pursuant
to the express terms of Sections 3.6 through 3.8 of the Partnership Agreement.
NOW THEREFORE, in consideration of the mutual covenants and
agreements contained herein, the parties hereto, intending to be legally bound,
do hereby agree as follow:
1. The provisions of Sections 3.6 through 3.8 of the
Partnership Agreement are hereby incorporated by reference as though set forth
in full herein. Each party hereto hereby confirms its obligation to comply
with all terms, provisions, covenants, conditions and restrictions and perform
all obligations applicable to such party under said Sections 3.6 through 3.8 of
the Partnership Agreement. Without limiting the generality of the foregoing,
Blackstone and Interstate hereby agree to comply, and to cause the Blackstone
Related Parties and the Interstate Related Parties, respectively, to comply,
with their obligations pertaining to the right of first opportunity set forth
in said Sections of the Partnership Agreement in accordance with the terms
applicable thereto.
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2
2. This Confirmation confirms and acknowledges the terms,
provisions, covenants, conditions, obligations and restrictions set forth in
Sections 3.6 through 3.8 of the Partnership Agreement. It shall not be
construed or understood to modify, in any way, such terms, provisions,
covenants, conditions, obligations and restrictions, and, in the event of any
conflict between this Confirmation and the Partnership Agreement, the
provisions of Sections 3.6 through 3.8 of the Partnership Agreement shall
control. In no event shall this Confirmation be construed or understood to
extend the duration of the restrictions on Blackstone, Interstate and the
Related Parties arising from the right of first opportunity, which shall
terminate as set forth in the Partnership Agreement. The provisions of
Sections 9.1, 9.3, and 9.5 through 9.10 of the Partnership Agreement are
incorporated herein, except that all references therein to the "Agreement"
shall be deemed to be references to this Confirmation, all references therein
to the "Partners" shall be deemed to be references to the parties hereto and
delivery of notices to Blackstone hereunder or under the Partnership Agreement
shall be delivered to the same address as the Blackstone General Partner, and
delivery of notices to Interstate hereunder shall be delivered to the same
address as the Interstate General Partner, unless any such parties shall change
the address for delivery of notice in accordance with the procedures
established under Section 9.6 of the Partnership Agreement. Nothing in this
Confirmation shall be understood or construed to render the parties hereto
joint venturers or partners for any purposes. Nothing in this Confirmation
shall be understood or construed to modify or expand the extent of any recourse
between the Partners beyond that expressly provided by the Partnership
Agreement.
THE BLACKSTONE GROUP HOLDINGS, L.P.
By: ____________________________
INTERSTATE HOTELS COMPANY
By: _____________________________
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EXHIBIT D
Pre-Existing Projects
NONE
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EXHIBIT E
Excluded Projects
Blackstone Excluded Projects
1. Any business activities with the Davidson Hotel Company
("Davidson"), including a merger or a combination of Davidson
or its assets with any other entity or with the assets of any
other entity, a REIT involving Davidson or some or all of its
assets, an initial public offering or other capital event
involving Davidson; provided, that this exclusion shall not
include the acquisition of other hotels by Davidson (other
than through a combination with another entity or a
combination with the assets of another entity) which were
first identified by the affiliates of the Blackstone Group
which are investors in Davidson (as opposed to acquisitions
first identified by the non- affiliated Davidson investors).
Interstate Excluded Projects
1. Four to six hotel acquisitions from an institutional owner
only in conjunction with the Carlyle Group or The Apollo
Group
2. Acquisition of Checkers Hotel in Los Angeles, California only
in conjunction with The Apollo Group
3. Any investment in a hotel which is incidental to Interstate
taking over management of such hotel such as those currently
under consideration by Interstate in Farmington, Connecticut,
Irvine, California, Warner Center, California and Burlington,
Massachusetts.
With respect to Interstate's investment
opportunities described in clauses 1 and 2 above, if The
Apollo Group or The Carlyle Group decides not to participate
in such investment or is willing to admit additional partners
or participants other than Interstate, Interstate will
present such opportunity to the Partnership in the manner
prescribed in Section 3.6 of the Partnership Agreement.
With respect to Interstate's investment
opportunities described in clauses 1 and 2 above, Interstate
(i) shall exercise best efforts to increase its equity stake
in such investments (up to the maximum
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of 50% of the total equity invested), and (ii) shall offer
the Blackstone Group (outside of the Partnership) an
opportunity to acquire 50% of whatever interest is available
to Interstate on terms and conditions acceptable to
Interstate and the Blackstone Group.