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EXHIBIT 10.2
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THIRD AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
AMB PROPERTY II, L.P.
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TABLE OF CONTENTS
PAGE
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ARTICLE 1. DEFINED TERMS AND RULES OF CONSTRUCTION 2
Section 1.1. Definitions 2
ARTICLE 2. ORGANIZATIONAL MATTERS 15
Section 2.1. Organization 15
Section 2.2. Name 15
Section 2.3. Resident Agent; Principal Office 16
Section 2.4. Power of Attorney 16
Section 2.5. Term 17
Section 2.6. Number of Partners 17
ARTICLE 3. PURPOSE 18
Section 3.1. Purpose and Business 18
Section 3.2. Powers 18
Section 3.3. Partnership Only for Purposes Specified 18
Section 3.4. Representations and Warranties by the Parties 19
Section 3.5. Certain ERISA Matters 21
ARTICLE 4. CAPITAL CONTRIBUTIONS 21
Section 4.1. Capital Contributions of the Partners 21
Section 4.2. Loans 21
Section 4.3. Additional Funding and Capital Contributions 21
Section 4.4. No Preemptive Rights 22
Section 4.5. Other Contribution Provisions 22
ARTICLE 5. DISTRIBUTIONS 23
Section 5.1. Requirement and Characterization of Distributions 23
Section 5.2. Distributions in Kind 23
Section 5.3. Distributions Upon Liquidation 24
Section 5.4. Distributions to Reflect Issuance of Additional Partnership Interests 24
ARTICLE 6. ALLOCATIONS 24
Section 6.1. Timing and Amount of Allocations of Net Income and Net Loss 24
Section 6.2. General Allocations 24
Section 6.3. Additional Allocation Provisions 26
Section 6.4. Tax Allocations 28
ARTICLE 7. MANAGEMENT AND OPERATIONS OF BUSINESS 29
Section 7.1. Management 29
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Section 7.2. Certificate of Limited Partnership 33
Section 7.3. Restrictions on General Partner's Authority 33
Section 7.4. Reimbursement of the General Partner 35
Section 7.5. Outside Activities of the General Partner 36
Section 7.6. Employee Benefit Plans 36
Section 7.7. Indemnification 36
Section 7.8. Liability of the General Partner 38
Section 7.9. Other Matters Concerning the General Partner 39
Section 7.10. Title to Partnership Assets 40
Section 7.11. Reliance by Third Parties 40
ARTICLE 8. RIGHTS AND OBLIGATIONS OF LIMITED PARTNERS 41
Section 8.1. Limitation of Liability 41
Section 8.2. Management of Business 41
Section 8.3. Outside Activities of Limited Partners 41
Section 8.4. Return of Capital 42
Section 8.5. Rights of Limited Partners Relating to the Partnership 42
ARTICLE 9. BOOKS, RECORDS, ACCOUNTING AND REPORTS 43
Section 9.1. Records and Accounting 43
Section 9.2. Fiscal Year 43
Section 9.3. Reports 43
Section 9.4. Nondisclosure of Certain Information 44
ARTICLE 10. TAX MATTERS 44
Section 10.1. Preparation of Tax Returns 44
Section 10.2. Tax Elections 44
Section 10.3. Tax Matters Partner 44
Section 10.4. Organizational Expenses 46
Section 10.5. Withholding 46
ARTICLE 11. TRANSFERS AND WITHDRAWALS 46
Section 11.1. Transfer 46
Section 11.2. Transfer of General Partner's and Common Limited Partner's Partnership
Interest 47
Section 11.3. Preferred Limited Partners' Rights to Transfer 47
Section 11.4. Substituted Limited Partners 49
Section 11.5. Assignees 49
Section 11.6. General Provisions 50
ARTICLE 12. ADMISSION OF PARTNERS 52
Section 12.1. Admission of Successor General Partner 52
Section 12.2. Admission of Additional Limited Partners 52
Section 12.3. Amendment of Agreement and Certificate of Limited Partnership 53
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ARTICLE 13. DISSOLUTION AND LIQUIDATION 53
Section 13.1. Dissolution 53
Section 13.2. Winding Up 54
Section 13.3. Compliance with Timing Requirements of Regulations 55
Section 13.4. Deemed Distribution and Recontribution 56
Section 13.5. Rights of Limited Partners 56
Section 13.6. Notice of Dissolution 56
Section 13.7. Cancellation of Certificate of Limited Partnership 56
Section 13.8. Reasonable Time for Winding-Up 57
Section 13.9. Waiver of Partition 57
ARTICLE 14. AMENDMENT OF PARTNERSHIP AGREEMENT; CONSENTS 57
Section 14.1. Amendments 57
Section 14.2. Action by the Partners 57
ARTICLE 15. GENERAL PROVISIONS 58
Section 15.1. Addresses and Notice 58
Section 15.2. Titles and Captions 58
Section 15.3. Pronouns and Plurals 58
Section 15.4. Further Action 59
Section 15.5. Binding Effect 59
Section 15.6. Creditors 59
Section 15.7. Waiver 59
Section 15.8. Counterparts 59
Section 15.9. Applicable Law 59
Section 15.10. Invalidity of Provisions 59
Section 15.11. Entire Agreement 59
Section 15.12. No Rights as Stockholders 60
ARTICLE 16. SERIES C PREFERRED UNITS 60
Section 16.1. Designation and Number 60
Section 16.2. Ranking 60
Section 16.3. Distributions 60
Section 16.4. Liquidation Proceeds 62
Section 16.5. Redemption 62
Section 16.6. Voting Rights 64
Section 16.7. Transfer Restrictions 65
Section 16.8. Exchange Rights 65
Section 16.9. No Conversion Rights 70
Section 16.10. No Sinking Fund 70
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THIRD AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
AMB PROPERTY II, L.P.
THIS THIRD AMENDED AND RESTATED AGREEMENT OF LIMITED
PARTNERSHIP, dated as of November 24, 1998, is entered into by and among AMB
Property Holding Corporation, a Maryland corporation (the "Company"), as the
General Partner, and the Persons whose names are set forth on Exhibit A attached
hereto, as the Limited Partners (the "Existing Limited Partners"), together with
any other Persons who become Partners in the Partnership as provided herein.
WHEREAS, the General Partner and the Existing Limited Partners
are parties to that certain Second Amended and Restated Agreement of Limited
Partnership, dated June 29, 1998, as amended;
WHEREAS, pursuant to Section 4.3.B of the Partnership
Agreement, the General Partner may, in its sole and absolute discretion subject
to Delaware law, in connection with any Capital Contribution, issue additional
Partnership Interests in one or more classes, or one or more series of any such
classes, with such designations, preferences and relative, participating,
optional or other special rights, powers, and duties, including rights, powers,
and duties senior to then existing Limited Partnership Interests;
WHEREAS, on the date hereof, Belcrest Realty Corporation, a
Delaware corporation and Belair Real Estate Corporation, a Delaware corporation
(each a "Contributor" and, together the "Contributors") have made an aggregate
Capital Contribution of $110,000,000, in cash, to the Partnership in exchange
for which Contributors are entitled to receive an aggregate of 2,200,000 Series
C Preferred Units in the Partnership with rights, preferences, exchange and
other rights, voting powers and restrictions, limitations as to distributions,
qualifications and terms and conditions as set forth herein;
WHEREAS, pursuant to the authority granted to the General
Partner under the Partnership Agreement, the General Partner desires to amend
and restate the Partnership Agreement to reflect (i) the issuance of the Series
C Preferred Units, (ii) the admission of the Contributors as Additional Limited
Partners and holder of a certain number of Series C Preferred Units and (iii)
certain other matters described herein;
WHEREAS, each of the Contributors desire to become a party to
the Partnership Agreement as a Limited Partner and to be bound by all terms,
conditions and other provisions of the Partnership Agreement; and
WHEREAS, by virtue of the execution of this Agreement by the
Company in its capacity as General Partner of the Partnership, the General
Partner hereby consent to the
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amendment and restatement of the Second Amended and Restated Agreement of
Limited Partnership.
NOW, THEREFORE, for good and adequate consideration, the
receipt of which is hereby acknowledged, the parties hereto agree as follows:
ARTICLE 1.
DEFINED TERMS AND RULES OF CONSTRUCTION
Section 1.1. Definitions
The following definitions shall be for all purposes, unless
otherwise clearly indicated to the contrary, applied to the terms used in this
Agreement.
"Act" means the Delaware Revised Uniform Limited Partnership
Act, as it may be amended from time to time, and any successor to such statute.
"Additional Funds" shall have the meaning set forth in Section
4.3.A.
"Additional Limited Partner" means a Person admitted to the
Partnership as a Limited Partner pursuant to Section 12.2 and who is shown as
such on the books and records of the Partnership.
"Adjusted Capital Account Deficit" means, with respect to any
Partner, the deficit balance, if any, in such Partner's Capital Account as of
the end of the relevant fiscal year, after giving effect to the following
adjustments:
(i) decrease such deficit by any amounts which such
Partner is obligated to restore pursuant to this
Agreement or is deemed to be obligated to restore
pursuant to Regulations Section 1.704-1(b)(2)(ii)(c)
or the penultimate sentence of each of Regulations
Sections 1.704-2(i)(5) and 1.704-2(g); and
(ii) increase such deficit by the items described in
Regulations Section 1.704-1(b)(2)(ii)(d)(4), (5) and
(6).
The foregoing definition of Adjusted Capital Account Deficit
is intended to comply with the provisions of Regulations Section
1.704-1(b)(2)(ii)(d) and shall be interpreted consistently therewith.
"Adjustment Date" shall have the meaning set forth in Section
4.3.D.
"Affiliate" means, with respect to any Person, any Person
directly or indirectly controlling, controlled by or under common control with
such Person.
"Agreed Value" means (i) in the case of any Contributed
Property set forth in Exhibit A and as of the time of its contribution to the
Partnership, the Agreed Value of such property as set forth in Exhibit A; (ii)
in the case of any Contributed Property not set forth in Exhibit A and as of the
time of its contribution to the Partnership, the fair market value of such
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property or other consideration as determined by the General Partner, reduced by
any liabilities either assumed by the Partnership upon such contribution or to
which such property is subject when contributed; and (iii) in the case of any
property distributed to a Partner by the Partnership, the fair market value of
such property as determined by the General Partner at the time such property is
distributed, reduced by any indebtedness either assumed by such Partner upon
such distribution or to which such property is subject at the time of the
distribution as determined under Section 752 of the Code and the Regulations
thereunder.
"Agreement" means this Third Amended and Restated Agreement of
Limited Partnership, as it may be amended, modified, supplemented or restated
from time to time.
"AMB" means AMB Property Corporation, a Maryland corporation,
in its capacity as the owner of 100% of the common stock of the General Partner
and as the sole general partner of the Operating Partnership.
"Appraisal" means with respect to any assets, the opinion of
an independent third party experienced in the valuation of similar assets,
selected by the General Partner in good faith; such opinion may be in the form
of an opinion by such independent third party that the value for such asset as
set by the General Partner is fair, from a financial point of view, to the
Partnership.
"Assignee" means a Person to whom one or more Partnership
Units have been transferred in a manner permitted under this Agreement, but who
has not become a Substituted Limited Partner, and who has the rights set forth
in Section 11.5.
"Available Cash" means, with respect to any period for which
such calculation is being made, (i) the sum of:
(a) the Partnership's Net Income or Net Loss (as the
case may be) for such period,
(b) Depreciation and all other noncash charges
deducted in determining Net Income or Net Loss for such
period,
(c) the amount of any reduction in reserves of the
Partnership referred to in clause (ii)(f) below (including,
without limitation, reductions resulting because the General
Partner determines such amounts are no longer necessary),
(d) the excess of the net proceeds from the sale,
exchange, disposition, or refinancing of Partnership property
for such period over the gain (or loss, as the case may be)
recognized from any such sale, exchange, disposition, or
refinancing during such period, and
(e) all other cash received by the Partnership for
such period that was not included in determining Net Income or
Net Loss for such period;
(ii) less the sum of:
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(a) all principal debt payments made during such
period by the Partnership,
(b) capital expenditures made by the Partnership
during such period,
(c) investments in any entity (including loans made
thereto) to the extent that such investments are not otherwise
described in clauses (ii)(a) or (b),
(d) all other expenditures and payments not deducted
in determining Net Income or Net Loss for such period,
(e) any amount included in determining Net Income or
Net Loss for such period that was not received by the
Partnership during such period,
(f) the amount of any increase in reserves
established during such period which the General Partner
determines are necessary or appropriate in its sole and
absolute discretion, and
(g) the amount of any working capital accounts and
other cash or similar balances which the General Partner
determines to be necessary or appropriate in its sole and
absolute discretion.
Notwithstanding the foregoing, Available Cash shall not
include any cash received or reductions in reserves, or take into account any
disbursements made or reserves established, after commencement of the
dissolution and liquidation of the Partnership.
"Board of Directors" means the Board of Directors of AMB.
"Business Day" means each day, other than a Saturday or a
Sunday, which is not a day on which banking institutions in Los Angeles,
California or New York, New York are authorized or required by law, regulation
or executive order to close.
"Capital Account" means, with respect to any Partner, the
Capital Account maintained for such Partner in accordance with the following
provisions:
(i) To each Partner's Capital Account there shall be
added such Partner's Capital Contributions, such Partner's share of Net Income
and any items in the nature of income or gain which are specially allocated
pursuant to Section 6.3, and the amount of any Partnership liabilities assumed
by such Partner or which are secured by any property distributed to such
Partner.
(ii) From each Partner's Capital Account there shall be
subtracted the amount of cash and the Gross Asset Value of any property
distributed to such Partner pursuant to any provision of this Agreement, such
Partner's distributive share of Net Losses and any items in the nature of
expenses or losses which are specially allocated pursuant to Section 6.3 hereof,
and the amount of any liabilities of such Partner assumed by the Partnership or
which are secured by any property contributed by such Partner to the
Partnership.
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(iii) In the event any interest in the Partnership is
transferred in accordance with the terms of this Agreement, the transferee shall
succeed to the Capital Account of the transferor to the extent it relates to the
transferred interest.
(iv) In determining the amount of any liability for
purposes of subsections (i) and (ii) hereof, there shall be taken into account
Code Section 752(c) and any other applicable provisions of the Code and
Regulations.
(v) The foregoing provisions and the other provisions of
this Agreement relating to the maintenance of Capital Accounts are intended to
comply with Regulations Sections 1.704-1(b) and 1.704-2, and shall be
interpreted and applied in a manner consistent with such Regulations. In the
event the General Partner shall determine that it is prudent to modify the
manner in which the Capital Accounts, or any debits or credits thereto
(including, without limitation, debits or credits relating to liabilities which
are secured by contributed or distributed property or which are assumed by the
Partnership, the General Partner, or the Limited Partners) are computed in order
to comply with such Regulations, the General Partner may make such modification;
provided that, it is not likely to have a material effect on the amounts
distributable to any Person pursuant to Article 13 of this Agreement upon the
dissolution of the Partnership. The General Partner also shall (a) make any
adjustments that are necessary or appropriate to maintain equality between the
Capital Accounts of the Partners and the amount of Partnership capital reflected
on the Partnership's balance sheet, as computed for book purposes, in accordance
with Regulations Section 1.704-1(b)(2)(iv)(q) and (b) make any appropriate
modifications in the event unanticipated events might otherwise cause this
Agreement not to comply with Regulations Section 1.704-1(b) or Section 1.704-2.
"Capital Contribution" means, with respect to any Partner, the
amount of money and the initial Gross Asset Value of any property (other than
money) contributed to the Partnership by such Partner.
"Certificate" means the Certificate of Limited Partnership
relating to the Partnership filed in the office of the Secretary of State of
Delaware, as amended from time to time in accordance with the terms hereof and
the Act.
"Charter" means the Company's Articles of Incorporation, as
filed with the Maryland Department of Assessments and Taxation on November 24,
1997.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time or any successor statute thereto, as interpreted by the
applicable regulations thereunder. Any reference herein to a specific section or
sections of the Code shall be deemed to include a reference to any corresponding
provision of future law.
"Common Unit" means each Partnership Unit that is not entitled
to any preference with respect to any other Partnership Unit as to distribution
or voluntary or involuntary liquidation, dissolution or winding up of the
Partnership.
"Common Limited Partner" means any Person holding Common
Units, and named as a Common Limited Partner in Exhibit A attached hereto, as
such Exhibit may be
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amended from time to time, or any Substituted Limited Partner or Additional
Limited Partner, in such Person's capacity as a Common Limited Partner in the
Partnership.
"Consent" means the consent to, approval of, or vote on a
proposed action by a Partner given in accordance with Article 14 hereof.
"Consent of the Limited Partners" means the Consent of a
Majority in Interest of the Limited Partners, other than the Preferred Limited
Partners, which Consent shall be obtained prior to the taking of any action for
which it is required by this Agreement and may be given or withheld by a
Majority in Interest of the Limited Partners, unless otherwise expressly
provided herein, in their sole and absolute discretion.
"Consent of the Partners" means the Consent of Partners, other
than the Preferred Limited Partners, holding Percentage Interests that in the
aggregate are equal to or greater than a majority of the aggregate Percentage
Interests of all Partners, other than the Preferred Limited Partners, which
Consent shall be obtained prior to the taking of any action for which it is
required by this Agreement and may be given or withheld by such Partners, in
their sole and absolute discretion.
"Constructively Own" means ownership under the constructive
ownership rules described in Exhibit C.
"Contributed Property" means each property or other asset, in
such form as may be permitted by the Act, but excluding cash, contributed or
deemed contributed to the Partnership (or, to the extent provided in applicable
regulations, deemed contributed by the Partnership on termination and
reconstitution thereof pursuant to Section 708 of the Code).
"Contributor" shall have the meaning given to such term in the
recitals hereto.
"Debt" means, as to any Person, as of any date of
determination: (i) all indebtedness of such Person for borrowed money or for the
deferred purchase price of property or services; (ii) all amounts owed by such
Person to banks or other Persons in respect of reimbursement obligations under
letters of credit, surety bonds and other similar instruments guaranteeing
payment or other performance of obligations by such Person; (iii) all
indebtedness for borrowed money or for the deferred purchase price of property
or services secured by any lien on any property owned by such Person, to the
extent attributable to such Person's interest in such property, even though such
Person has not assumed or become liable for the payment thereof; and (iv) lease
obligations of such Person which, in accordance with generally accepted
accounting principles, should be capitalized.
"Depreciation" means, for each fiscal year or other period, an
amount equal to the depreciation, amortization or other cost recovery deduction
allowable with respect to an asset for such year or other period, except that if
the Gross Asset Value of an asset differs from its adjusted basis for Federal
income tax purposes at the beginning of such year or other period, Depreciation
shall be an amount which bears the same ratio to such beginning Gross Asset
Value as the Federal income tax depreciation, amortization or other cost
recovery deduction for such year or other period bears to such beginning
adjusted tax basis; provided, however, that if the
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Federal income tax depreciation, amortization or other cost recovery deduction
for such year is zero, Depreciation shall be determined with reference to such
beginning Gross Asset Value using any reasonable method selected by the General
Partner.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Securities and Exchange Commission
promulgated thereunder.
"Funding Debt" means the incurrence of any Debt by or on
behalf of the General Partner for the purpose of providing funds to the
Partnership.
"General Partner" means the Company or its successors as
general partner of the Partnership.
"General Partner Interest" means a Partnership Interest held
by the General Partner. A General Partner Interest may be expressed as a number
of Partnership Units.
"Gross Asset Value" means, with respect to any asset, the
asset's adjusted basis for Federal income tax purposes, except as follows:
(i) The initial Gross Asset Value of any asset
contributed by a Partner to the Partnership shall be the gross fair market value
of such asset, as determined by the contributing Partner and the General Partner
(as set forth on Exhibit A attached hereto, as such Exhibit may be amended from
time to time); provided, that if the contributing Partner is the General Partner
then, except with respect to the General Partner's initial Capital Contribution
which shall be determined as set forth on Exhibit A, or capital contributions of
cash, the determination of the fair market value of the contributed asset shall
be determined by (a) the price paid by the General Partner if the asset is
acquired by the General Partner contemporaneously with its contribution to the
Partnership or (b) by Appraisal if otherwise acquired by the General Partner.
(ii) Immediately prior to the times listed below, the
Gross Asset Values of all Partnership assets shall be adjusted to equal their
respective gross fair market values, as determined by the General Partner using
such reasonable method of valuation as it may adopt:
(a) the acquisition of an additional interest in the
Partnership by a new or existing Partner in exchange
for more than a de minimis Capital Contribution, if
the General Partner reasonably determines that such
adjustment is necessary or appropriate to reflect the
relative economic interests of the Partners in the
Partnership;
(b) the distribution by the Partnership to a Partner of
more than a de minimis amount of Partnership property
as consideration for an interest in the Partnership
if the General Partner reasonably determines that
such adjustment is necessary or appropriate to
reflect the relative economic interests of the
Partners in the Partnership;
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(c) the liquidation of the Partnership within the meaning
of Regulations Section 1.704-1(b)(2)(ii)(g); and
(d) at such other times as the General Partner shall
reasonably determine necessary or advisable in order
to comply with Regulations Sections 1.704-1(b) and
1.704-2.
(iii) The Gross Asset Value of any Partnership asset
distributed to a Partner shall be the gross fair market value of such asset on
the date of distribution as determined by the distributee and the General
Partner; provided, that if the distributee is the General Partner, or if the
distributee and the General Partner cannot agree on such a determination, by
Appraisal.
(iv) The Gross Asset Values of Partnership assets shall be
increased (or decreased) to reflect any adjustments to the adjusted basis of
such assets pursuant to Code Section 734(b) or Code Section 743(b), but only to
the extent that such adjustments are taken into account in determining Capital
Accounts pursuant to Regulations Section 1.704-1(b)(2)(iv)(m); provided,
however, that Gross Asset Values shall not be adjusted pursuant to this
subparagraph (iv) to the extent that the General Partner reasonably determines
that an adjustment pursuant to subparagraph (ii) is necessary or appropriate in
connection with a transaction that would otherwise result in an adjustment
pursuant to this subparagraph (iv).
(v) If the Gross Asset Value of a Partnership asset has
been determined or adjusted pursuant to subparagraph (i), (ii) or (iv), such
Gross Asset Value shall thereafter be adjusted by the Depreciation taken into
account with respect to such asset for purposes of computing Net Income and Net
Losses.
"Holder" means either the Partner or Assignee owning a
Partnership Unit.
"Immediate Family" means, with respect to any natural Person,
such natural Person's estate or heirs or current spouse or former spouse,
parents, parents-in-law, children, siblings and grandchildren and any trust or
estate, all of the beneficiaries of which consist of such Person or such
Person's spouse, former spouse, parents, parents-in-law, children, siblings or
grandchildren.
"Incapacity" or "Incapacitated" means: (i) as to any
individual Partner, death, total physical disability or entry by a court of
competent jurisdiction adjudicating him or her incompetent to manage his or her
Person or his or her estate; (ii) as to any corporation which is a Partner, the
filing of a certificate of dissolution, or its equivalent, for the corporation
or the revocation of its charter; (iii) as to any partnership which is a
Partner, the dissolution and commencement of winding up of the partnership; (iv)
as to any estate which is a Partner, the distribution by the fiduciary of the
estate's entire interest in the Partnership; (v) as to any trustee of a trust
which is a Partner, the termination of the trust (but not the substitution of a
new trustee); or (vi) as to any Partner, the bankruptcy of such Partner. For
purposes of this definition, bankruptcy of a Partner shall be deemed to have
occurred when (a) the Partner commences a voluntary proceeding seeking
liquidation, reorganization or other relief under any bankruptcy, insolvency or
other similar law now or hereafter in effect, (b) the Partner is adjudged as
bankrupt or insolvent, or a final and nonappealable order for relief under any
bankruptcy, insolvency or
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similar law now or hereafter in effect has been entered against the Partner, (c)
the Partner executes and delivers a general assignment for the benefit of the
Partner's creditors, (d) the Partner files an answer or other pleading admitting
or failing to contest the material allegations of a petition filed against the
Partner in any proceeding of the nature described in clause (b) above, (e) the
Partner seeks, consents to or acquiesces in the appointment of a trustee,
receiver or liquidator for the Partner or for all or any substantial part of the
Partner's properties, (f) any proceeding seeking liquidation, reorganization or
other relief under any bankruptcy, insolvency or other similar law now or
hereafter in effect has not been dismissed within one hundred and twenty (120)
days after the commencement thereof, (g) the appointment without the Partner's
consent or acquiescence of a trustee, receiver or liquidator has not been
vacated or stayed within ninety (90) days of such appointment or (h) an
appointment referred to in clause (g) is not vacated within ninety (90) days
after the expiration of any such stay.
"Indemnitee" means (i) any Person subject to a claim or demand
or made or threatened to be made a party to, or involved or threatened to be
involved in, an action, suit or proceeding by reason of his or her status as (a)
the General Partner or (b) a director, officer, employee or agent of the
Partnership or the General Partner and (ii) such other Persons (including
Affiliates of the General Partner or the Partnership) as the General Partner may
designate from time to time, in its sole and absolute discretion.
"IRS" means the Internal Revenue Service, which administers
the internal revenue laws of the United States.
"Junior Stock" means shares of capital stock of AMB
representing any class or series of equity interest ranking, as to distributions
and voluntary or involuntary liquidation, dissolution or winding up of AMB,
junior to the Series C Preferred Shares.
"Junior Units" means Partnership Units representing any class
or series of Partnership Interest ranking, as to distributions and voluntary or
involuntary liquidation, dissolution or winding up of the Partnership, junior to
the Series C Preferred Units.
"Limited Partner" means any Person named as a Limited Partner
in Exhibit A attached hereto, as such Exhibit may be amended from time to time,
any Substituted Limited Partner or Additional Limited Partner, in such Person's
capacity as a Limited Partner in the Partnership.
"Limited Partnership Interest" means a Partnership Interest of
a Limited Partner representing a fractional part of the Partnership Interests of
all Limited Partners and includes any and all benefits to which the holder of
such a Partnership Interest may be entitled as provided in this Agreement,
together with all obligations of such Person to comply with the terms and
provisions of this Agreement. A Limited Partnership Interest may be expressed as
a number of Partnership Units.
"Liquidating Events" shall have the meaning set forth in
Section 13.1.
"Liquidator" shall have the meaning set forth in Section
13.2.A.
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"Majority in Interest of the Limited Partners" means Limited
Partners (other than any Preferred Limited Partner) holding Percentage Interests
that in the aggregate are greater than fifty percent (50%) of the aggregate
Percentage Interests of all Limited Partners (other than any Preferred Limited
Partner).
"Majority in Interest of Partners" means Partners (other than
Preferred Limited Partners) holding Percentage Interests that are greater than
fifty percent (50%) of the aggregate Percentage Interests of all Partners (other
than Preferred Limited Partners).
"Net Income" or "Net Loss" means for each fiscal year of the
Partnership, an amount equal to the Partnership's taxable income or loss for
such fiscal year, determined in accordance with Code Section 703(a) (for this
purpose, all items of income, gain, loss or deduction required to be stated
separately pursuant to Code Section 703(a)(1) shall be included in taxable
income or loss), with the following adjustments:
(i) Any income of the Partnership that is exempt from
Federal income tax and not otherwise taken into account in computing Net Income
or Net Loss pursuant to this definition of Net Income or Net Loss shall be added
to such taxable income or loss;
(ii) Any expenditures of the Partnership described in Code
Section 705(a)(2)(B) or treated as Code Section 705(a)(2)(B) expenditures
pursuant to Regulations Section 1.704-1(b)(2)(iv)(i), and not otherwise taken
into account in computing Net Income or Net Loss pursuant to this definition of
Net Income or Net Loss shall be subtracted from such taxable income or loss;
(iii) In the event the Gross Asset Value of any
Partnership asset is adjusted pursuant to subparagraph (ii) or (iii) of the
definition of Gross Asset Value, the amount of such adjustment shall be taken
into account as gain or loss from the disposition of such asset for purposes of
computing Net Income or Net Loss;
(iv) Gain or loss resulting from any disposition of
property with respect to which gain or loss is recognized for Federal income tax
purposes shall be computed by reference to the Gross Asset Value of the property
disposed of, notwithstanding that the adjusted tax basis of such property
differs from its Gross Asset Value;
(v) In lieu of the depreciation, amortization, and other
cost recovery deductions taken into account in computing such taxable income or
loss, there shall be taken into account Depreciation for such fiscal year;
(vi) To the extent an adjustment to the adjusted tax basis
of any Partnership asset pursuant to Code Section 734(b) or Code Section 743(b)
is required pursuant to Regulations Section 1.704-1(b)(2)(iv)(m)(4) to be taken
into account in determining Capital Accounts as a result of a distribution other
than in liquidation of a Partner's interest in the Partnership, the amount of
such adjustment shall be treated as an item of gain (if the adjustment increases
the basis of the asset) or loss (if the adjustment decreases the basis of the
asset) from the disposition of the asset and shall be taken into account for
purposes of computing Net Income or Net Loss; and
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(vii) Notwithstanding any other provision of this
definition of Net Income or Net Loss, any items which are specially allocated
pursuant to Section 6.3 shall not be taken into account in computing Net Income
or Net Loss. The amounts of the items of Partnership income, gain, loss, or
deduction available to be specially allocated pursuant to Section 6.3 shall be
determined by applying rules analogous to those set forth in this definition of
Net Income or Net Loss.
Solely for purposes of allocating Net Income or Net Loss in
any Fiscal Year to the Holders of the Series A Preferred Units pursuant to
Sections 6.2.B.1(c) and (e), and Section 6.2.B.2(b), items of Net Income and Net
Loss, as the case may be, shall not include Depreciation with respect to
properties that are "ceiling limited" in respect of Preferred Limited Partners.
For purposes of the preceding sentence, Partnership property shall be considered
ceiling limited in respect of a Preferred Limited Partner if Depreciation
attributable to such Partnership property which would otherwise be allocable to
such Partner, without regard to this paragraph, exceeded depreciation determined
for federal income tax purposes attributable to such Partnership property which
would otherwise be allocable to such Partner by more than 5%.
"Nonrecourse Deductions" shall have the meaning set forth in
Regulations Section 1.704-2(b)(1), and the amount of Nonrecourse Deductions for
a Partnership Year shall be determined in accordance with the rules of
Regulations Section 1.704-2(c).
"Nonrecourse Liability" shall have the meaning set forth in
Regulations Section 1.752-1(a)(2).
"Notice of Redemption" means the Notice of Redemption
substantially in the form of Exhibit B to this Agreement.
"Operating Partnership" means AMB Property, L.P., a Delaware
limited partnership.
"Parity Preferred Stock" means any class or series of equity
interest of AMB now or hereafter authorized, issued or outstanding expressly
designated by AMB to rank on a parity with the Series C Preferred Shares with
respect to distributions and rights upon voluntary or involuntary liquidation,
winding up or dissolution of AMB.
"Parity Preferred Unit" means any class or series of
Partnership Interests of the Partnership now or hereafter authorized, issued or
outstanding expressly designated by the Partnership to rank on a parity with the
Series C Preferred Units with respect to distributions and rights upon voluntary
or involuntary liquidation, winding up or dissolution of the Partnership.
"Partner" means a General Partner or a Limited Partner, and
"Partners" means the General Partner and the Limited Partners.
"Partner Minimum Gain" means an amount, with respect to each
Partner Nonrecourse Debt, equal to the Partnership Minimum Gain that would
result if such Partner Nonrecourse Debt were treated as a Nonrecourse Liability,
determined in accordance with Regulations Section 1.704-2(i)(3).
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"Partner Nonrecourse Debt" shall have the meaning set forth in
Regulations Section 1.704-2(b)(4).
"Partner Nonrecourse Deductions" shall have the meaning set
forth in Regulations Section 1.704-2(i)(2), and the amount of Partner
Nonrecourse Deductions with respect to a Partner Nonrecourse Debt for a
Partnership Year shall be determined in accordance with the rules of Regulations
Section 1.704-2(i)(2).
"Partnership" means the limited partnership formed under the
Act and pursuant to this Agreement, and any successor thereto.
"Partnership Interest" means an ownership interest in the
Partnership of either a Limited Partner or the General Partner and includes any
and all benefits to which the holder of such a Partnership Interest may be
entitled as provided in this Agreement, together with all obligations of such
Person to comply with the terms and provisions of this Agreement. There may be
one or more classes of Partnership Interests as provided in Section 4.3. A
Partnership Interest may be expressed as a number of Partnership Units. Unless
otherwise expressly provided for by the General Partner at the time of the
original issuance of any Partnership Interests, all Partnership Interests
(whether of a Limited Partner or a General Partner) shall be of the same class.
The Partnership Interests represented by the Common Units and the Series C
Preferred Units are the only Partnership Interests and each such type of unit is
a separate class of Partnership Interest for all purposes of this Agreement.
"Partnership Minimum Gain" shall have the meaning set forth in
Regulations Section 1.704-2(b)(2), and the amount of Partnership Minimum Gain,
as well as any net increase or decrease in Partnership Minimum Gain, for a
Partnership Year shall be determined in accordance with the rules of Regulations
Section 1.704-2(d).
"Partnership Record Date" means the record date established by
the General Partner for the distribution of Available Cash with respect to
Common Units pursuant to Section 5.1 which record date shall be the same as the
record date established by AMB for a distribution to its stockholders of some or
all of its portion of such distribution.
"Partnership Unit" means, with respect to any class of
Partnership Interest, a fractional, undivided share of such class of Partnership
Interest issued pursuant to Sections 4.1 and 4.3. The ownership of Partnership
Units may be evidenced by a certificate for units substantially in the form of
Exhibit D-1 hereto or as the General Partner may determine with respect to any
class of Partnership Units issued from time to time under Sections 4.1 and 4.3.
"Partnership Year" means the fiscal year of the Partnership,
which shall be the calendar year.
"Percentage Interest" means, as to a Partner holding a class
of Partnership Interests, its interest in the Partnership as determined by
dividing the Partnership Units of such class owned by such Partner by the total
number of Partnership Units of such class then outstanding as specified in
Exhibit A attached hereto, as such Exhibit may be amended from time to time. If
the Partnership issues more than one class of Partnership Interest, the interest
in the
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Partnership among the classes of Partnership Interests shall be determined as
set forth in the amendment to the Partnership Agreement setting forth the rights
and privileges of such additional classes of Partnership Interest, if any, as
contemplated by Section 4.3.B.
"Person" means an individual or a corporation, partnership,
limited liability company, trust, unincorporated organization, association or
other entity.
"Plan Asset Regulation" means the regulations promulgated by
the United States Department of Labor in Title 29, Code of Federal Regulations,
Part 2510, Section 101-3, and any successor regulations thereto.
"Pledge" shall have the meaning set forth in Section 11.3.A.
"Preferred Distribution Shortfall" shall have the meaning
given to such term in Section 5.1 hereof.
"Preferred Limited Partner" means any Person holding a
Preferred Unit, and named as a Preferred Limited Partner in Exhibit A attached
hereto, as such Exhibit may be amended from time to time, or any Substitute
Limited Partner or Additional Limited Partner, in such Person's capacity as a
Preferred Limited Partner in the Partnership.
"Preferred Share" means a share of AMB preferred stock, par
value $.01 per share, with such rights, priorities and preferences as shall be
designated by the Board of Directors in accordance with the REIT Charter.
"Preferred Unit" means a Partnership Unit representing a
Limited Partnership Interest, with such preferential rights and priorities as
shall be designated by the General Partner pursuant to Section 4.3.C hereof
including, without limitation, the Series C Preferred Units.
"Properties" means such interests in real property and
personal property including without limitation, fee interests, interests in
ground leases, interests in joint ventures, interests in mortgages, and Debt
instruments as the Partnership may hold from time to time.
"Qualified REIT Subsidiary" means any Subsidiary of AMB that
is a "qualified REIT subsidiary" within the meaning of Section 856(i) of the
Code.
"Qualified Transferee" means an "Accredited Investor" as
defined in Rule 501 promulgated under the Securities Act.
"Redemption" shall have the meaning set forth in Section
16.5.A.
"Regulations" means the Income Tax Regulations promulgated
under the Code, as such regulations may be amended from time to time (including
corresponding provisions of succeeding regulations).
"Regulatory Allocations" shall have the meaning set forth in
Section 6.3.A(viii).
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"REIT" means a real estate investment trust under Sections 856
through 860 of the Code.
"REIT Charter" means the Articles of Incorporation of AMB as
of November 24, 1997, as amended by the Articles Supplementary filed with the
Maryland Department of Assessments and Taxation on July 23, 1998 designating the
8 1/2% Series A Cumulative Redeemable Preferred Stock, the Articles
Supplementary filed with the Maryland Department of Assessments and Taxation on
November 12, 1998 designating the 8 3/8% Series B Cumulative Redeemable
Preferred Stock, and the Articles Supplementary filed with the Maryland
Department of Assessments and Taxation on November 24, 1998 designating the 8
3/4% Series C Cumulative Redeemable Preferred Stock, and as further amended or
restated from time to time.
"REIT Requirements" shall have the meaning set forth in
Section 5.1.
"REIT Share" means a share of common stock, par value $.01 per
share, of AMB.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations of the Securities and Exchange Commission
promulgated thereunder.
"Series C Articles Supplementary" means the Articles
Supplementary of AMB in connection with its Series C Preferred Shares, as filed
with the Maryland Department of Revenue and Taxation on November 24, 1998.
"Series C Limited Partner" means any Person holding Series C
Preferred Units and named as a Series C Limited Partner in Exhibit A attached
hereto, as such Exhibit may be amended from time to time, or any Substitute
Limited Partner, in such Person's capacity as a Limited Partner in the
Partnership.
"Series C Preferred Capital" means a Capital Account balance
equal to the product of (i) the number of Series C Preferred Units then held by
the General Partner multiplied by (ii) the sum of $50 and any Preferred
Distribution Shortfall per Series C Preferred Unit.
"Series C Preferred Share" means a share of 8 3/4% Series C
Cumulative Redeemable Preferred Stock, par value $.01 per share, liquidation
preference $50 per share, of AMB.
"Series C Preferred Units" means the Partnership's 8 3/4%
Series C Cumulative Redeemable Partnership Units.
"Series C Preferred Unit Distribution Payment Date" shall have
the meaning set forth in Section 16.3.A hereof.
"Series C Priority Return" shall mean an amount equal to 8
3/4% per annum on an amount equal to $50 per Series C Preferred Unit then
outstanding (equivalent to $4.375 per annum). Such amount shall be determined on
a daily basis computed on the basis of a 360-day year of twelve 30-day months
(or actual days for any month which is shorter than a full monthly period),
cumulative from November 24, 1998 to the extent not distributed for any given
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distribution period pursuant to Sections 5.1 and 16.3 hereof. Notwithstanding
the foregoing, distributions on the Series C Preferred Units will accrue whether
or not the terms and provisions of any agreement of the Partnership at any time
prohibit the current payment of distributions, whether or not the Partnership
has earnings, whether or not there are funds legally available for the payment
of such distributions and whether or not such distributions are authorized.
Accrued but unpaid distributions on the Series C Preferred Units will accumulate
as of the Series C Preferred Unit Distribution Payment Date on which they first
become payable.
"Specified Redemption Date" means the day of receipt by the
General Partner of a Notice of Redemption.
"Subsidiary" shall mean, with respect to any person, any
corporation, partnership, limited liability company, joint venture or other
entity of which a majority of (i) the voting power of the voting equity
securities or (ii) the outstanding equity interests, is owned, directly or
indirectly, by such person.
"Subsidiary Partnership" means any partnership or limited
liability company that is a Subsidiary of the Partnership or the Operating
Partnership.
"Substituted Limited Partner" means a Person who is admitted
as a Limited Partner to the Partnership pursuant to Section 11.4.
"Tax Items" shall have the meaning set forth in Section 6.4.A.
"Tenant" means any tenant from which AMB derives rent either
directly or indirectly through partnerships, including the Partnership.
ARTICLE 2.
ORGANIZATIONAL MATTERS
Section 2.1. Organization
The Partnership is a limited partnership formed pursuant to
the provisions of the Act and upon the terms and conditions set forth in this
Agreement. Except as expressly provided herein, the rights and obligations of
the Partners and the administration and termination of the Partnership shall be
governed by the Act. The Partnership Interest of each Partner shall be personal
property for all purposes.
Section 2.2. Name
The name of the Partnership is AMB Property II, L.P. The
Partnership's business may be conducted under any other name or names deemed
advisable by the General Partner, including the name of the General Partner or
any Affiliate thereof. The words "Limited Partnership," "L.P.," "Ltd." or
similar words or letters shall be included in the Partnership's name where
necessary for the purposes of complying with the laws of any jurisdiction that
so requires. The General Partner in its sole and absolute discretion may change
the name of the Partnership at any time and from time to time and shall notify
the Limited Partners of such
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change in the next regular communication to the Limited Partners.
Section 2.3. Resident Agent; Principal Office
The name and address of the resident agent of the Partnership
in the State of Delaware is The Corporation Trust Company, 1209 Orange Street,
Wilmington, Delaware 19801. The address of the principal office of the
Partnership in the State of Delaware is The Corporation Trust Company, 1209
Orange Street, Wilmington, Delaware 19801 at such address. The principal office
of the Partnership is located at 505 Montgomery Street, San Francisco,
California 94111, or such other place as the General Partner may from time to
time designate by notice to the Limited Partners. The Partnership may maintain
offices at such other place or places within or outside the State of Delaware as
the General Partner deems advisable.
Section 2.4. Power of Attorney
A. Each Limited Partner and each Assignee constitutes
and appoints the General Partner, any Liquidator, and authorized officers and
attorneys-in-fact of each, and each of those acting singly, in each case with
full power of substitution, as its true and lawful agent and attorney-in-fact,
with full power and authority in its name, place and stead to:
(i) execute, swear to, acknowledge, deliver, file and
record in the appropriate public offices: (a) all
certificates, documents and other instruments
(including, without limitation, this Agreement and
the Certificate and all amendments or restatements
thereof) that the General Partner or the Liquidator
deems appropriate or necessary to form, qualify or
continue the existence or qualification of the
Partnership as a limited partnership (or a
partnership in which the Limited Partners have
limited liability) in the State of Delaware and in
all other jurisdictions in which the Partnership may
conduct business or own property; (b) all instruments
that the General Partner or any Liquidator deems
appropriate or necessary to reflect any amendment,
change, modification or restatement of this Agreement
in accordance with its terms; (c) all conveyances and
other instruments or documents that the General
Partner or any Liquidator deems appropriate or
necessary to reflect the dissolution and liquidation
of the Partnership pursuant to the terms of this
Agreement, including, without limitation, a
certificate of cancellation; (d) all instruments
relating to the admission, withdrawal, removal or
substitution of any Partner pursuant to, or other
events described in, Articles 11, 12 and 13 or the
Capital Contribution of any Partner; and (e) all
certificates, documents and other instruments
relating to the determination of the rights,
preferences and privileges of Partnership Interests;
and
(ii) execute, swear to, acknowledge and file all ballots,
consents, approvals, waivers, certificates and other
instruments appropriate or necessary, in the sole and
absolute discretion of the General Partner or any
Liquidator, to make, evidence, give, confirm or
ratify any vote, consent, approval, agreement or
other action which is made or given by the Partners
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hereunder or is consistent with the terms of this
Agreement or appropriate or necessary, in the sole
discretion of the General Partner or any Liquidator,
to effectuate the terms or intent of this Agreement.
Nothing contained herein shall be construed as authorizing the General Partner
or any Liquidator to amend this Agreement except in accordance with Article 14
or as may be otherwise expressly provided for in this Agreement.
B. The foregoing power of attorney is hereby declared to
be irrevocable and a power coupled with an interest, in recognition of the fact
that each of the Partners will be relying upon the power of the General Partner
and any Liquidator to act as contemplated by this Agreement in any filing or
other action by it on behalf of the Partnership, and it shall survive and not be
affected by the subsequent Incapacity of any Limited Partner or Assignee and the
transfer of all or any portion of such Limited Partner's or Assignee's
Partnership Units and shall extend to such Limited Partner's or Assignee's
heirs, successors, assigns and personal representatives. Each such Limited
Partner or Assignee hereby agrees to be bound by any representation made by the
General Partner or any Liquidator, acting in good faith pursuant to such power
of attorney; and each such Limited Partner or Assignee hereby waives any and all
defenses which may be available to contest, negate or disaffirm the action of
the General Partner or any Liquidator, taken in good faith under such power of
attorney. Each Limited Partner or Assignee shall execute and deliver to the
General Partner or any Liquidator, within fifteen (15) days after receipt of the
General Partner's or Liquidator's request therefor, such further designation,
powers of attorney and other instruments as the General Partner or the
Liquidator, as the case may be, deems necessary to effectuate this Agreement and
the purposes of the Partnership.
Section 2.5. Term
The term of the Partnership commenced on October 15, 1997 and
shall continue until October 15, 2096 unless it is dissolved sooner pursuant to
the provisions of Article 13 or as otherwise provided by law.
Section 2.6. Number of Partners
Without the consent of the General Partner which may be given
or withheld in its sole discretion, the Partnership shall not at any time have
more than one hundred (100) partners (including as partners those persons
indirectly owning an interest in the Partnership through a partnership, limited
liability company, S corporation or grantor trust (such entity, a "flow through
entity"), but only if substantially all of the value of such person's interest
in the flow through entity is attributable to the flow through entity's interest
(direct or indirect) in the Partnership).
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ARTICLE 3.
PURPOSE
Section 3.1. Purpose and Business
The purpose and nature of the business to be conducted by the
Partnership is (i) to conduct any business that may be lawfully conducted by a
limited partnership organized pursuant to the Act; provided, however, that such
business shall be limited to and conducted in such a manner as to permit AMB, in
its capacity as the owner of 100% of the Common Stock of the General Partner and
as the sole General Partner of the Operating Partnership, at all times to be
classified as a REIT for Federal income tax purposes, unless the General Partner
ceases to qualify as a REIT for reasons other than the conduct of the business
of the Partnership, (ii) to enter into any partnership, joint venture or other
similar arrangement to engage in any of the foregoing or to own interests in any
entity engaged, directly or indirectly, in any of the foregoing and (iii) to do
anything necessary or incidental to the foregoing. In connection with the
foregoing, and without limiting AMB's right in its sole discretion to cease
qualifying as a REIT, the Partners acknowledge that AMB's current status as a
REIT inures to the benefit of all the Partners and not solely the General
Partner.
Section 3.2. Powers
The Partnership is empowered to do any and all acts and things
necessary, appropriate, proper, advisable, incidental to or convenient for the
furtherance and accomplishment of the purposes and business described herein and
for the protection and benefit of the Partnership, including, without
limitation, full power and authority, directly or through its ownership interest
in other entities, to enter into, perform and carry out contracts of any kind,
borrow money and issue evidences of indebtedness, whether or not secured by
mortgage, deed of trust, pledge or other lien, acquire and develop real
property, and manage, lease, sell, transfer and dispose of real property;
provided, however, not withstanding anything to the contrary in this Agreement,
the Partnership shall not take, or refrain from taking, any action which, in the
judgment of AMB, in its sole and absolute discretion, (i) could adversely affect
the ability of AMB, in its capacity as the owner of 100% of the Common Stock of
the General Partner and as the sole general partner of the Operating
Partnership, to continue to qualify as a REIT, (ii) absent the consent of the
General Partner, which may be given or withheld in its sole and absolute
discretion, and except with respect to the distribution of Available Cash to the
Series C Limited Partners in accordance with Section 16.3, could subject AMB to
any taxes under Section 857 or Section 4981 of the Code, or (iii) could violate
any law or regulation of any governmental body or agency having jurisdiction
over AMB or its securities, unless any such action (or inaction) under the
foregoing clauses (i), (ii) or (iii) shall have been specifically consented to
by AMB in writing.
Section 3.3. Partnership Only for Purposes Specified
The Partnership shall be a partnership only for the purposes
specified in Section 3.1, and this Agreement shall not be deemed to create a
partnership among the Partners with respect to any activities whatsoever other
than the activities within the purposes of the Partnership as specified in
Section 3.1. Except as otherwise provided in this Agreement, no
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Partner shall have any authority to act for, bind, commit or assume any
obligation or responsibility on behalf of the Partnership, its properties or any
other Partner. No Partner, in its capacity as a Partner under this Agreement,
shall be responsible or liable for any indebtedness or obligation of another
Partner, nor shall the Partnership be responsible or liable for any indebtedness
or obligation of any Partner, incurred either before or after the execution and
delivery of this Agreement by such Partner, except as to those responsibilities,
liabilities, indebtedness or obligations incurred pursuant to and as limited by
the terms of this Agreement and the Act.
Section 3.4. Representations and Warranties by the
Parties
A. Each Partner that is an individual represents and
warrants to each other Partner that (i) such Partner has in the case of any
Person other than an individual, the power and authority, and in the case of an
individual, the legal capacity, to enter into this Agreement and perform such
Partner's obligations hereunder, (ii) the consummation of the transactions
contemplated by this Agreement to be performed by such Partner will not result
in a breach or violation of, or a default under, any agreement by which such
Partner or any of such Partner's property is or are bound, or any statute,
regulation, order or other law to which such Partner is subject, (iii) such
Partner is neither a "foreign person" within the meaning of Section 1445(f) of
the Code nor a "foreign partner" within the meaning of Section 1446(e) of the
Code and (iv) this Agreement has been duly executed and delivered by such
Partner and is binding upon, and enforceable against, such Partner in accordance
with its terms.
B. Each Partner that is not an individual represents and
warrants to each other Partner that (i) its execution and delivery of this
Agreement and all transactions contemplated by this Agreement to be performed by
it have been duly authorized by all necessary action, including without
limitation, that of its general partner(s), committee(s), trustee(s),
beneficiaries, directors and/or stockholder(s), as the case may be, as required,
(ii) the consummation of such transactions shall not result in a breach or
violation of, or a default under, its certificate of limited partnership,
partnership agreement, trust agreement, limited liability company operating
agreement, charter or by-laws, as the case may be, any agreement by which such
Partner or any of such Partner's properties or any of its partners,
beneficiaries, trustees or stockholders, as the case may be, is or are bound, or
any statute, regulation, order or other law to which such Partner or any of its
partners, trustees, beneficiaries or stockholders, as the case may be, is or are
subject, (iii) such Partner is neither a "foreign person" within the meaning of
Section 1445(f) of the Code nor a "foreign partner" within the meaning of
Section 1446(e) of the Code and (iv) this Agreement has been duly executed and
delivered by such Partner and is binding upon, and enforceable against, such
Partner in accordance with its terms.
C. Each Partner represents, warrants and agrees that it
has acquired and continues to hold its interest in the Partnership for its own
account for investment only and not for the purpose of, or with a view toward,
the resale or distribution of all or any part thereof, nor with a view toward
selling or otherwise distributing such interest or any part thereof at any
particular time or under any predetermined circumstances. Each Partner further
represents and warrants that it is a sophisticated investor, able and accustomed
to handling sophisticated financial matters for itself, particularly real estate
investments, and that it has a sufficiently high
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net worth that it does not anticipate a need for the funds it has invested in
the Partnership in what it understands to be a highly speculative and illiquid
investment.
D. Each Partner further represents, warrants and agrees
as follows:
(i) Except as provided in Exhibit E, at any time such
Partner actually or Constructively owns a 25% or greater capital
interest or profits interest in the Partnership, it does not and will
not, without the prior written consent of the General Partner, actually
own or Constructively Own (a) with respect to any Tenant that is a
corporation, any stock of such Tenant and (b) with respect to any
Tenant that is not a corporation, any interests in either the assets or
net profits of such Tenant.
(ii) Except as provided in Exhibit F, at any time
such Partner actually or Constructively owns a 25% or greater capital
interest or profits interest in the Partnership, it does not, and
agrees that it will not without the prior written consent of the
General Partner, actually own or Constructively Own, any stock in AMB,
other than any shares of capital stock of AMB that such Partner may
acquire pursuant to Section 16.8, subject to the ownership limitations
set forth in the REIT Charter.
(iii) Upon request of the General Partner, it will
disclose to the General Partner the amount of shares of capital stock
of AMB that it actually owns or Constructively Owns.
(iv) It understands that if, for any reason, (a) the
representations, warranties or agreements set forth in Section 3.4.D(i)
or (ii) are violated or (b) the Partnership's actual or Constructive
Ownership of the REIT Shares or other shares of capital stock of AMB
violates the limitations set forth in the Charter, then (x) some or all
of the Redemption rights or rights to exchange Partnership Interests
for Series C Preferred Shares of the Limited Partners may become
non-exercisable, and (y) some or all of such shares owned by the
Partners and/or some or all of the Partnership Interests owned by the
Limited Partners may be automatically transferred to a trust for the
benefit of a charitable beneficiary, as provided in the REIT Charter
and Exhibit I of this Agreement, respectively.
E. The representations and warranties contained in
Sections 3.4.A, 3.4.B, 3.4.C and 3.4.D shall survive the execution and delivery
of this Agreement by each Partner and the dissolution and winding up of the
Partnership.
F. Each Partner hereby acknowledges that no
representations as to potential profit, cash flows, funds from operations or
yield, if any, in respect of the Partnership or the General Partner have been
made by any Partner or any employee or representative or Affiliate of any
Partner, and that projections and any other information, including, without
limitation, financial and descriptive information and documentation, which may
have been in any manner submitted to such Partner shall not constitute any
representation or warranty of any kind or nature, express or implied.
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Section 3.5. Certain ERISA Matters
Each Partner acknowledges that the Partnership is intended to
qualify as a "real estate operating company" (as such term is defined in the
Plan Asset Regulation). The General Partner will use its reasonable best efforts
to structure the investments in, relationships with and conduct with respect to
Properties and any other assets of the Partnership so that the Partnership will
be a "real estate operating company" (as such term is defined in the Plan Asset
Regulation).
ARTICLE 4.
CAPITAL CONTRIBUTIONS
Section 4.1. Capital Contributions of the Partners
At the time of their respective execution of this Agreement,
the Partners shall make or shall have made Capital Contributions as set forth in
Exhibit A to this Agreement. The Partners shall own Partnership Units of the
class and in the amounts set forth in Exhibit A and shall have a Percentage
Interest in the Partnership as set forth in Exhibit A, which Percentage Interest
shall be adjusted in Exhibit A from time to time by the General Partner to the
extent necessary to accurately reflect exchanges, redemptions, Capital
Contributions, the issuance of additional Partnership Units or similar events
having an effect on a Partner's Percentage Interest. Except as required by law
or as otherwise provided in Sections 4.3 and 10.5, no Partner shall be required
or permitted to make any additional Capital Contributions or loans to the
Partnership.
Section 4.2. Loans
Subject to Section 4.3, the Partnership may incur Debt, or
enter into other similar credit, guarantee, financing or refinancing
arrangements for any purpose (including, without limitation, in connection with
any further acquisition of Properties) with any Person, including the General
Partner, the Operating Partnership and their affiliates, upon such terms as the
General Partner determines appropriate; provided, that the Partnership shall not
incur any Debt that is recourse to the General Partner, except to the extent
otherwise agreed to by the General Partner in its sole discretion.
Section 4.3. Additional Funding and Capital Contributions
A. General. The General Partner may, at any time and
from time to time, determine that the Partnership requires additional funds
("Additional Funds") for the acquisition of additional Properties or for such
other Partnership purposes as the General Partner may determine. Additional
Funds may be raised by the Partnership, at the election of the General Partner,
in any manner provided in, and in accordance with, the terms of this Section
4.3. No Person shall have any preemptive, preferential or similar right or
rights to subscribe for or acquire any Partnership Interest.
B. Issuance of Additional Partnership Interests. The
General Partner may raise all or any portion of the Additional Funds by
accepting additional Capital Contributions of cash. The General Partner may also
accept additional Capital Contributions of real property or other non-cash
assets. In connection with any such additional Capital Contributions (of cash or
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property), and subject to Section 16.6 hereof, the General Partner is hereby
authorized to cause the Partnership from time to time to issue to Partners
(including the General Partner) or other Persons (including, without limitation,
in connection with the contribution of property to the Partnership) additional
Partnership Units or other Partnership Interests in one or more classes, or one
or more series of any of such classes, with such designations, preferences and
relative, participating, optional or other special rights, powers, and duties,
including rights, powers, and duties senior to then existing Limited Partnership
Interests, all as shall be determined by the General Partner in its sole and
absolute discretion subject to Delaware law, and as set forth by amendment to
this Agreement, including without limitation: (i) the allocations of items of
Partnership income, gain, loss, deduction, and credit to such class or series of
Partnership Interests; (ii) the right of each such class or series of
Partnership Interests to share in Partnership distributions; (iii) the rights of
each such class or series of Partnership Interests upon dissolution and
liquidation of the Partnership; and (iv) the right to vote. In the event that
the Partnership issues additional Partnership Interests pursuant to this Section
4.3.B, the General Partner shall make such revisions to this Agreement
(including but not limited to the revisions described in Sections 5.4 and 6.2.C)
as it determines are necessary to reflect the issuance of such additional
Partnership Interests.
C. Percentage Interest Adjustments in the Case of
Capital Contributions for Partnership Units. Upon the acceptance of additional
Capital Contributions in exchange for Partnership Units, the Percentage Interest
related thereto, and the Percentage Interest of each other Partner, shall be
equal to the amounts agreed to by the Partnership and the contributors.
D. AMB agrees to comply with Section 4.3.D of the Third
Amended and Restated Agreement of Limited Partnership of the Operating
Partnership, as amended or waived from time to time.
Section 4.4. No Preemptive Rights
Except to the extent expressly granted by the Partnership
pursuant to another agreement, no Person shall have any preemptive, preferential
or other similar right with respect to (i) making additional Capital
Contributions or loans to the Partnership or (ii) issuance or sale of any
Partnership Units or other Partnership Interests.
Section 4.5. Other Contribution Provisions
In the event that any Partner is admitted to the Partnership
and is given (or is treated as having received) a Capital Account in exchange
for services rendered to the Partnership, such transaction shall be treated by
the Partnership and the affected Partner as if the Partnership had compensated
such Partner in cash, and the Partner had contributed such cash to the capital
of the Partnership. In addition, with the consent of the General Partner, in its
sole discretion, one or more Limited Partners may enter into contribution
agreements with the Partnership which have the effect of providing a guarantee
of certain obligations of the Partnership.
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ARTICLE 5.
DISTRIBUTIONS
Section 5.1. Requirement and Characterization of
Distributions
The General Partner shall cause the Partnership to distribute
all, or such portion as the General Partner may in its discretion determine,
Available Cash generated by the Partnership (i) first, to the extent that the
amount of cash distributed with respect to any Partnership Interests that are
entitled to any preference in distribution for any prior distribution period was
less than the required distribution for such outstanding Partnership Interests
for such prior distribution period, and to the extent such deficiency has not
been subsequently distributed pursuant to this Section 5.1 (a "Preferred
Distribution Shortfall"), in accordance with the rights of such class of
Partnership Interests (and within such class, pro rata in proportion to the
respective Percentage Interests on the applicable record date) and to the
Partners who are Partners on the applicable record date with respect to such
distribution, (ii) second, with respect to any Partnership Interests that are
entitled to any preference in distribution, in accordance with the rights of
such class of Partnership Interests (and within such class, pro rata in
proportion to the respective Percentage Interests on the applicable record date)
and (iii) third, with respect to Partnership Interests that are not entitled to
any preference in distribution, pro rata to each such class on a quarterly basis
and in accordance with the terms of such class to Partners who are Partners of
such class on the Partnership Record Date with respect to such distribution (and
within each such class, pro rata in proportion with the respective Percentage
Interests on such Partnership Record Date). Except as expressly provided for in
Article 16 with respect to the Series C Preferred Units and in an agreement, if
any, entered into in connection with the creation of a new class of Partnership
Interests in accordance with Article 4, no Partnership Interest shall be
entitled to a distribution in preference to any other Partnership Interest. The
General Partner shall take such reasonable efforts, as determined by it in its
sole and absolute discretion and consistent with AMB's qualification as a REIT,
to cause the Partnership to distribute sufficient amounts to enable AMB, in its
capacity of general partner of the Operating Partnership, and the sole
stockholder of the General Partner, to pay stockholder dividends that will, so
long as AMB has determined to qualify as a REIT (a) satisfy the requirements for
qualifying as a REIT under the Code and Regulations ("REIT Requirements") and
(b) except to the extent otherwise determined by the General Partner, avoid any
Federal income or excise tax liability of the General Partner, except to the
extent that a distribution pursuant to clause (b) would prevent the Partnership
from making a distribution to the holders of Series C Preferred Units in
accordance with Section 16.3.
Section 5.2. Distributions in Kind
No right is given to any Partner to demand and receive
property other than cash. The General Partner may determine, in its sole and
absolute discretion, to make a distribution in kind to the Partners of
Partnership assets, and such assets shall be distributed in such a fashion as to
ensure that the fair market value is distributed and allocated in accordance
with Articles 5, 6 and 10; provided, however, that, in such case, the General
Partners shall distribute only cash to the Series C Limited Partners.
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Section 5.3. Distributions Upon Liquidation
Proceeds from a Liquidating Event shall be distributed to the
Partners in accordance with Section 13.2.
Section 5.4. Distributions to Reflect Issuance of Additional
Partnership Interests
In the event that the Partnership issues additional
Partnership Interests to the General Partner or any Additional Limited Partner
pursuant to Section 4.3.B or 4.4, the General Partner shall make such revisions
to this Article 5 as it determines are necessary to reflect the issuance of such
additional Partnership Interests. In the absence of any agreement to the
contrary, an Additional Limited Partner shall be entitled to the distributions
set forth in Section 5.1 (without regard to this Section 5.4) with respect to
the quarter during which the closing of its contribution to the Partnership
occurs, multiplied by a fraction the numerator of which is the number of days
from and after the date of such closing through the end of the applicable
quarter, and the denominator of which is the total number of days in such
quarter.
ARTICLE 6.
ALLOCATIONS
Section 6.1. Timing and Amount of Allocations of Net Income
and Net Loss
Net Income and Net Loss of the Partnership shall be determined and allocated
with respect to each fiscal year of the Partnership as of the end of each such
year. Subject to the other provisions of this Article 6, an allocation to a
Holder of a share of Net Income or Net Loss shall be treated as an allocation of
the same share of each item of income, gain, loss or deduction that is taken
into account in computing Net Income or Net Loss.
Section 6.2. General Allocations
A. In General. Except as otherwise provided in this
Article 6, Net Income and Net Loss allocable with respect to a class of
Partnership Interests, shall be allocated to each of the Holders holding such
class of Partnership Interests in accordance with their respective Percentage
Interest of such class.
B.1. Net Income. Except as provided in Section 6.3,
Net Income for any Partnership Year shall be allocated in the following manner
and order of priority:
(a) First, 100% to the General Partner in an amount equal
to the remainder, if any, of the cumulative Net
Losses allocated to the General Partner pursuant to
Section 6.2.B.2(d) for all prior Partnership Years
minus the cumulative Net Income allocated to the
General Partner pursuant to this Section 6.2.B.1(a)
for all prior Partnership Years;
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(b) Second, 100% to each Holder of Partnership Interests
in an amount equal to the remainder, if any, of the
cumulative Net Losses allocated to each such Holder
pursuant to Section 6.2.B.2(c) for all prior
Partnership Years minus the cumulative Net Income
allocated to such Holder pursuant to this Section
6.2.B.1(b) for all prior Partnership Years;
(c) Third, 100% to the Holders of Preferred Units in an
amount equal to the remainder, if any, of the
cumulative Net Losses allocated to such Holders
pursuant to Section 6.2.B.2(b) for all prior
Partnership Years minus the cumulative Net Income
allocated to such Holders pursuant to this Section
6.2.B.1(c) for all prior Partnership Years;
(d) Fourth, 100% to the Holders of Common Units in an
amount equal to the remainder, if any, of the
cumulative Net Losses allocated to each such Holder
pursuant to Section 6.2.B.2(a) for all prior
Partnership Years minus the cumulative Net Income
allocated to each Holder pursuant to this Section
6.2.B.1(d) for all prior Partnership Years;
(e) Fifth, 100% to the Holders of Preferred Units, in an
amount equal to the excess of (i) in respect of the
Series C Preferred Units, an amount equal to the
cumulative Series C Priority Return to the last day
of the current Partnership Year or to the date of
redemption, to the extent Series C Preferred Units
are redeemed during such year, over (ii) the
cumulative Net Income allocated to such Holders,
pursuant to this Section 6.2.B.1(e) for all prior
Partnership Years; and
(f) Sixth, 100% to the Holders of Common Units in
accordance with their respective Percentage Interests
in the Common Units.
To the extent the allocations of Net Income set forth above in
any paragraph of this Section 6.2.B.1 are not sufficient to entirely satisfy the
allocation set forth in such paragraph, such allocation shall be made in
proration to the total amount that would have been allocated pursuant to such
paragraph without regard to such shortfall.
B.2. Net Losses. Except as provided in Section 6.3, Net
Losses for any Partnership Year shall be allocated in the following manner and
order of priority:
(a) First, 100% to the Holders of Common Units in
accordance with their respective Percentage Interests
in the Common Units (to the extent consistent with
this Section 6.2.B.2(a)) until the Adjusted Capital
Account (ignoring for this purpose any amounts a
Holder is obligated to contribute to the capital of
the Partnership or is deemed obligated to contribute
pursuant to Regulations Section
1.704-1(b)(2)(ii)(c)(2) and ignoring the Holder's
Series C Preferred Capital) of each such Holder is
zero;
(b) Second, 100% to the Holders of Preferred Units, pro
rata to each such Holder's Adjusted Capital Account
(ignoring for this purpose any amounts
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a Holder is obligated to contribute to the capital of
the Partnership or is deemed obligated to contribute
pursuant to Regulations Section
1.704-1(b)(2)(ii)(c)(2)), until the Adjusted Capital
Account (as so modified) of each such Holder is zero;
(c) Third, 100% to the Holders of Partnership Interests
to the extent of, and in proportion to, the positive
balance (if any) in their Adjusted Capital Accounts;
and
(d) Fourth, 100% to the General Partner.
C. Allocations to Reflect Issuance of Additional
Partnership Interests. In the event that the Partnership issues additional
Partnership Interests to the General Partner or any Additional Limited Partner
pursuant to Section 4.3 or 4.4, the General Partner shall make such revisions to
this Section 6.2 or to Section 12.2.B as it determines are necessary to reflect
the terms of the issuance of such additional Partnership Interests, including
making preferential allocations to certain classes of Partnership Interests,
subject to the terms of the Series C Preferred Units.
Section 6.3. Additional Allocation Provisions
Notwithstanding the foregoing provisions of this Article 6:
A. Regulatory Allocations.
(i) Minimum Gain Chargeback. Except as otherwise
provided in Regulations Section 1.704-2(f), notwithstanding the
provisions of Section 6.2, or any other provision of this Article 6, if
there is a net decrease in Partnership Minimum Gain during any fiscal
year, each Holder shall be specially allocated items of Partnership
income and gain for such year (and, if necessary, subsequent years) in
an amount equal to such Holder's share of the net decrease in
Partnership Minimum Gain, as determined under Regulations Section
1.704-2(g). Allocations pursuant to the previous sentence shall be made
in proportion to the respective amounts required to be allocated to
each Holder pursuant thereto. The items to be allocated shall be
determined in accordance with Regulations Sections 1.704-2(f)(6) and
1.704-2(j)(2). This Section 6.3.A(i) is intended to qualify as a
"minimum gain chargeback" within the meaning of Regulation Section
1.704-2(f) which shall be controlling in the event of a conflict
between such Regulation and this Section 6.3.A(i).
(ii) Partner Minimum Gain Chargeback. Except as
otherwise provided in Regulations Section 1.704-2(i)(4), and
notwithstanding the provisions of Section 6.2, or any other provision
of this Article 6 (except Section 6.3.A(i)), if there is a net decrease
in Partner Minimum Gain attributable to a Partner Nonrecourse Debt
during any fiscal year, each Holder who has a share of the Partner
Minimum Gain attributable to such Partner Nonrecourse Debt, determined
in accordance with Regulations Section 1.704-2(i)(5), shall be
specially allocated items of Partnership income and gain for such year
(and, if necessary, subsequent years) in an amount equal to such
Holder's share of the net
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decrease in Partner Minimum Gain attributable to such Partner
Nonrecourse Debt, determined in accordance with Regulations Section
1.704-2(i)(4). Allocations pursuant to the previous sentence shall be
made in proportion to the respective amounts required to be allocated
to each Holder pursuant thereto. The items to be so allocated shall be
determined in accordance with Regulations Sections 1.704-2(i)(4) and
1.704-2(j)(2). This Section 6.3.A(ii) is intended to qualify as a
"chargeback of partner nonrecourse debt minimum gain" within the
meaning of Regulation Section 1.704-2(i) which shall be controlling in
the event of a conflict between such Regulation and this Section
6.3.A(ii).
(iii) Nonrecourse Deductions and Partner Nonrecourse
Deductions. Any Nonrecourse Deductions for any fiscal year shall be
specially allocated to the Holders in accordance with their respective
Percentage Interest in Common Units. Any Partner Nonrecourse Deductions
for any fiscal year shall be specially allocated to the Holder(s) who
bears the economic risk of loss with respect to the Partner Nonrecourse
Debt to which such Partner Nonrecourse Deductions are attributable, in
accordance with Regulations Sections 1.704-2(b)(4) and 1.704-2(i).
(iv) Qualified Income Offset. If any Holder
unexpectedly receives an adjustment, allocation or distribution
described in Regulations Section 1.704-1(b)(2)(ii)(d)(4), (5) or (6),
items of Partnership income and gain shall be allocated, in accordance
with Regulations Section 1.704-1(b)(2)(ii)(d), to the Holder in an
amount and manner sufficient to eliminate, to the extent required by
such Regulations, the Adjusted Capital Account Deficit of the Holder as
quickly as possible provided that an allocation pursuant to this
Section 6.3.A(iv) shall be made if and only to the extent that such
Holder would have an Adjusted Capital Account Deficit after all other
allocations provided in this Article 6 have been tentatively made as if
this Section 6.3.A(iv) were not in the Agreement. It is intended that
this Section 6.3.A(iv) qualify and be construed as a "qualified income
offset" within the meaning of Regulations 1.704-1(b)(2)(ii)(d), which
shall be controlling in the event of a conflict between such
Regulations and this Section 6.3.A(iv).
(v) Gross Income Allocation. In the event any Holder
has a deficit Capital Account at the end of any fiscal year which is in
excess of the sum of (a) the amount (if any) such Holder is obligated
to restore to the Partnership and (b) the amount such Holder is deemed
to be obligated to restore pursuant to Regulations Section
1.704-1(b)(2)(ii)(c) or the penultimate sentences of Regulations
Sections 1.704-2(g)(1) and 1.704-2(i)(5), each such Holder shall be
specially allocated items of Partnership income and gain in the amount
of such excess as quickly as possible; provided, that an allocation
pursuant to this Section 6.3.A(v) shall be made if and only to the
extent that such Holder would have a deficit Capital Account in excess
of such sum after all other allocations provided in this Article 6 have
been tentatively made as if this Section 6.3.A(v) and Section 6.3.A(iv)
were not in the Agreement.
(vi) Limitation on Allocation of Net Loss. To the
extent any allocation of Net Loss would cause or increase an Adjusted
Capital Account Deficit as to any Holder, such allocation of Net Loss
shall be reallocated among the other Holders in
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accordance with their respective Percentage Interests in Common Units,
subject to the limitations of this Section 6.3.A(vi).
(vii) Section 754 Adjustment. To the extent an
adjustment to the adjusted tax basis of any Partnership asset pursuant
to Code Section 734(b) or Code Section 743(b) is required, pursuant to
Regulations Section 1.704-1(b)(2)(iv)(m)(2) or Regulations Section
1.704-1(b)(2)(iv)(m)(4), to be taken into account in determining
Capital Accounts as the result of a distribution to a Holder in
complete liquidation of his interest in the Partnership, the amount of
such adjustment to the Capital Accounts shall be treated as an item of
gain (if the adjustment increases the basis of the asset) or loss (if
the adjustment decreases such basis) and such gain or loss shall be
specially allocated to the Holders in accordance with their interests
in the Partnership in the event that Regulations Section
1.704-1(b)(2)(iv)(m)(2) applies, or to the Holders to whom such
distribution was made in the event that Regulations Section
1.704-1(b)(2)(iv)(m)(4) applies.
(viii) Curative Allocation. The allocations set forth
in Sections 6.3.A(i), (ii), (iii), (iv), (v), (vi), and (vii) (the
"Regulatory Allocations") are intended to comply with certain
regulatory requirements, including the requirements of Regulations
Sections 1.704-1(b) and 1.704-2. Notwithstanding the provisions of
Sections 6.1 and 6.2, the Regulatory Allocations shall be taken into
account in allocating other items of income, gain, loss and deduction
among the Holders so that, to the extent possible, the net amount of
such allocations of other items and the Regulatory Allocations to each
Holder shall be equal to the net amount that would have been allocated
to each such Holder if the Regulatory Allocations had not occurred.
B. For purposes of determining a Holder's proportional
share of the "excess nonrecourse liabilities" of the Partnership within the
meaning of Regulations Section 1.752-3(a)(3), each Holder's interest in
Partnership profits shall be such Holder's Percentage Interest in Common Units.
Section 6.4. Tax Allocations
A. In General. Except as otherwise provided in this
Section 6.4, for income tax purposes each item of income, gain, loss and
deduction (collectively, "Tax Items") shall be allocated among the Holders in
the same manner as its correlative item of "book" income, gain, loss or
deduction is allocated pursuant to Sections 6.2 and 6.3.
B. Allocations Respecting Section 704(c) Revaluations.
Notwithstanding Section 6.4.A, Tax Items with respect to Partnership property
that is contributed to the Partnership by a Partner shall be shared among the
Holders for income tax purposes pursuant to Regulations promulgated under
Section 704(c) of the Code, so as to take into account the variation, if any,
between the basis of the property to the Partnership and its initial Gross Asset
Value. With respect to Partnership property that is initially contributed to the
Partnership upon its formation pursuant to Section 4.1, such variation between
basis and initial Gross Asset Value shall be taken into account under the
"traditional method" as described in Regulations Section 1.704-3(b). With
respect to properties subsequently contributed to the Partnership, the
Partnership shall account for such variation under any method approved under
Section 704(c)
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of the Code and the applicable regulations as chosen by the General Partner. In
the event the Gross Asset Value of any Partnership asset is adjusted pursuant to
subparagraph (ii) of the definition of Gross Asset Value (provided in Article
1), subsequent allocations of Tax Items with respect to such asset shall take
account of the variation, if any, between the adjusted basis of such asset and
its Gross Asset Value in the same manner as under Section 704(c) of the Code and
the applicable regulations consistent with the requirements of Regulations
Section 1.704-1(b)(2)(iv)(g) using any method approved under 704(c) of the Code
and the applicable regulations as chosen by the General Partner.
ARTICLE 7.
MANAGEMENT AND OPERATIONS OF BUSINESS
Section 7.1. Management
A. Except as otherwise expressly provided in this
Agreement, all management powers over the business and affairs of the
Partnership are exclusively vested in the General Partner, and no Limited
Partner shall have any right to participate in or exercise control or management
power over the business and affairs of the Partnership; provided, however, that
the General Partner may be removed by the Majority in Interest of the Limited
Partners, with or without cause, such removal effective upon the delivery of
written notice thereof by the Limited Partners to the General Partner. In
addition to the powers now or hereafter granted a general partner of a limited
partnership under the Act and other applicable law or which are granted to the
General Partner under any other provision of this Agreement, the General
Partner, subject to the other provisions hereof including Section 7.3, shall
have full power and authority to do all things deemed necessary or desirable by
it to conduct the business of the Partnership, to exercise all powers set forth
in Section 3.2 and to effectuate the purposes set forth in Section 3.1,
including, without limitation:
(i) the making of any expenditures, the lending or
borrowing of money (including, without limitation,
making prepayments on loans and borrowing money to
permit the Partnership to make distributions to its
Partners in such amounts as will permit AMB, in its
capacity as the sole General Partner of the Operating
Partnership and as sole stockholder of the General
Partner (for so long as AMB has determined to qualify
as a REIT), to avoid the payment of any Federal
income tax (including, for this purpose, any excise
tax pursuant to Section 4981 of the Code) and to make
distributions to its stockholders sufficient to
permit AMB to maintain REIT status), the assumption
or guarantee of, or other contracting for,
indebtedness and other liabilities, the issuance of
evidences of indebtedness (including the securing of
same by mortgage, deed of trust or other lien or
encumbrance on all or any of the Partnership's
assets) and the incurring of any obligations it deems
necessary for the conduct of the activities of the
Partnership;
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(ii) the making of tax, regulatory and other filings, or
rendering of periodic or other reports to
governmental or other agencies having jurisdiction
over the business or assets of the Partnership;
(iii) subject to the provisions of Section 7.3.D, the
acquisition, disposition, mortgage, pledge,
encumbrance, hypothecation or exchange of any assets
of the Partnership or the merger or other combination
of the Partnership with or into another entity;
(iv) the mortgage, pledge, encumbrance or hypothecation
of all or any assets of the Partnership, and the use
of the assets of the Partnership (including, without
limitation, cash on hand) for any purpose consistent
with the terms of this Agreement and on any terms it
sees fit, including, without limitation, the
financing of the conduct or the operations of the
General Partner or the Partnership, the lending of
funds to other Persons (including, without
limitation, the General Partner (if necessary to
permit the financing or capitalization of a
subsidiary of the General Partner or the Partnership)
and any Subsidiaries of the Partnership) and the
repayment of obligations of the Partnership, any of
its Subsidiaries and any other Person in which it has
an equity investment;
(v) the negotiation, execution, and performance of any
contracts, leases, conveyances or other instruments
that the General Partner considers useful or
necessary to the conduct of the Partnership's
operations or the implementation of the General
Partner's powers under this Agreement;
(vi) the distribution of Partnership cash or other
Partnership assets in accordance with this Agreement;
(vii) the selection and dismissal of employees of the
Partnership (including, without limitation, employees
having titles such as "president," "vice president,"
"secretary" and "treasurer"), and agents, outside
attorneys, accountants, consultants and contractors
of the Partnership, the determination of their
compensation and other terms of employment or hiring,
including waivers of conflicts of interest and the
payment of their expenses and compensation out of the
Partnership's assets;
(viii) the maintenance of such insurance for the benefit of
the Partnership and the Partners as it deems
necessary or appropriate;
(ix) the formation of, or acquisition of an interest in,
and the contribution of property to, any further
limited or general partnerships, joint ventures or
other relationships that it deems desirable
(including, without limitation, the acquisition of
interests in, and the contributions of property to
any Subsidiary and any other Person in which it has
an equity investment from time to time); provided
that, as long as AMB, in its capacity as the sole
stockholder of the General Partner and as the sole
general partner of the
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Operating Partnership, has determined to continue to
qualify as a REIT, the Partnership may not engage in
any such formation, acquisition or contribution that
would cause AMB to fail to qualify as a REIT;
(x) the control of any matters affecting the rights and
obligations of the Partnership, including the conduct
of litigation and the incurring of legal expense and
the settlement of claims and litigation, and the
indemnification of any Person against liabilities and
contingencies to the extent permitted by law;
(xi) the undertaking of any action in connection with the
Partnership's direct or indirect investment in any
Person (including, without limitation, contributing
or loaning Partnership funds to, incurring
indebtedness on behalf of, or guarantying the
obligations of any such Persons);
(xii) subject to the other provisions in this Agreement,
the determination of the fair market value of any
Partnership property distributed in kind using such
reasonable method of valuation as it may adopt;
provided that, such methods are otherwise consistent
with requirements of this Agreement;
(xiii) the management, operation, leasing, landscaping,
repair, alteration, demolition or improvement of any
real property or improvements owned by the
Partnership or any Subsidiary of the Partnership or
any Person in which the Partnership has made a direct
or indirect equity investment;
(xiv) holding, managing, investing and reinvesting cash and
other assets of the Partnership;
(xv) the collection and receipt of revenues and income of
the Partnership;
(xvi) the exercise, directly or indirectly through any
attorney-in-fact acting under a general or limited
power of attorney, of any right, including the right
to vote, appurtenant to any asset or investment held
by the Partnership;
(xvii) the exercise of any of the powers of the General
Partner enumerated in this Agreement on behalf of or
in connection with any Subsidiary of the Partnership
or any other Person in which the Partnership has a
direct or indirect interest, or jointly with any such
Subsidiary or other Person;
(xviii) the exercise of any of the powers of the General
Partner enumerated in this Agreement on behalf of any
Person in which the Partnership does not have an
interest, pursuant to contractual or other
arrangements with such Person; and
(xix) the making, execution and delivery of any and all
deeds, leases, notes, deeds to secure debt,
mortgages, deeds of trust, security agreements,
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conveyances, contracts, guarantees, warranties,
indemnities, waivers, releases or legal instruments
or other agreements in writing necessary or
appropriate in the judgment of the General Partner
for the accomplishment of any of the powers of the
General Partner enumerated in this Agreement.
(xx) the making of loans by the Partnership to its
Partners, for any purpose, provided that such loans
be upon arm's-length terms.
B. Each of the Limited Partners agrees that the General
Partner is authorized to execute, deliver and perform the above-mentioned
agreements and transactions on behalf of the Partnership without any further
act, approval or vote of the partners, notwithstanding any other provisions of
this Agreement (except as provided in Section 7.3), the Act or any applicable
law, rule or regulation. The execution, delivery or performance by the General
Partner or the Partnership of any agreement authorized or permitted under this
Agreement shall not constitute a breach by the General Partner of any duty that
the General Partner may owe the Partnership or the Limited Partners or any other
Persons under this Agreement or of any duty stated or implied by law or equity.
C. At all times from and after the date hereof, the
General Partner may cause the Partnership to obtain and maintain (i) casualty,
liability and other insurance (including, without limitation, earthquake
insurance) on the properties of the Partnership and (ii) liability insurance for
the Indemnities hereunder.
D. At all times from and after the date hereof, the
General Partner may cause the Partnership to establish and maintain working
capital and other reserves in such amounts as the General Partner, in its sole
and absolute discretion, deems appropriate and reasonable from time to time.
E. In exercising its authority under this Agreement, the
General Partner may, but other than as set forth in the following sentence and
as expressly set forth in the agreements listed on Exhibit H hereto, shall be
under no obligation to, take into account the tax consequences to any Partner
(including the General Partner) of any action taken by the General Partner. The
General Partner and the Partnership shall not have liability to a Limited
Partner under any circumstances as a result of an income tax liability incurred
by such Limited Partner as a result of an action (or inaction) by the General
Partner pursuant to its authority under this Agreement.
F. Except as otherwise provided herein, to the extent
the duties of the General Partner require expenditures of funds to be paid to
third parties, the General Partner shall not have any obligations hereunder
except to the extent that Partnership funds are reasonably available to it for
the performance of such duties, and nothing herein contained shall be deemed to
authorize or require the General Partner, in its capacity as such, to expend its
individual funds for payment to third parties or to undertake any individual
liability or obligation on behalf of the Partnership.
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Section 7.2. Certificate of Limited Partnership
To the extent that such action is determined by the General
Partner to be reasonable and necessary or appropriate, the General Partner shall
file amendments to and restatements of the Certificate and do all the things to
maintain the Partnership as a limited partnership (or a partnership in which the
limited partners have limited liability) under the laws of the State of Delaware
and to maintain the Partnership's qualification to do business as a foreign
limited partnership in each other state, the District of Columbia or other
jurisdiction, in which the Partnership may elect to do business or own property.
Subject to the terms of Section 8.5.A(iv), the General Partner shall not be
required, before or after filing, to deliver or mail a copy of the Certificate
or any amendment thereto to any Limited Partner. The General Partner shall use
all reasonable efforts to cause to be filed such other certificates or documents
as may be reasonable and necessary or appropriate for the formation,
continuation, qualification and operation of a limited partnership (or a
partnership in which the limited partners have limited liability) in the State
of Delaware, and any other state, or the District of Columbia or other
jurisdiction, in which the Partnership may elect to do business or own property.
Section 7.3. Restrictions on General Partner's Authority
A. The General Partner may not take any action in
contravention of this Agreement, including, without limitation:
(i) take any action that would make it impossible to
carry on the ordinary business of the Partnership,
except as otherwise provided in this Agreement;
(ii) possess Partnership property, or assign any rights in
specific Partnership property, for other than a
Partnership purpose except as otherwise provided in
this Agreement;
(iii) admit a Person as a Partner, except as otherwise
provided in this Agreement;
(iv) perform any act that would subject a Limited Partner
to liability as a general partner in any jurisdiction
or any other liability except as provided herein or
under the Act; or
(v) perform any act that would subject the Partnership to
regulation as an "investment company" as such term is
defined under the Investment Company Act of 1940, as
amended.
B. The General Partner shall not, without the prior
Consent of the Partners (in addition to any Consent of the Limited Partners
required by any other provision hereof), undertake, on behalf of the
Partnership, any of the following actions or enter into any transaction which
would have the effect of such transactions:
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(i) except as provided in Section 7.3.D below, amend,
modify or terminate this Agreement other than to
reflect the admission, substitution, termination or
withdrawal of partners pursuant to Article 12;
(ii) make a general assignment for the benefit of
creditors or appoint or acquiesce in the appointment
of a custodian, receiver or trustee for all or any
part of the assets of the Partnership;
(iii) institute any proceeding for bankruptcy on behalf of
the Partnership;
(iv) confess a judgment against the Partnership; or
(v) enter into a merger (including a triangular merger),
consolidation or other combination of the Partnership
with or into another entity.
C. Except in the case of a Liquidating Event pursuant to
Section 13.1 (other than Section 13.1.F), the General Partner shall not, without
the prior Consent of the Limited Partners, undertake, on behalf of the
Partnership, any actions or enter into any transaction which would have the
effect of a dissolution of the Partnership, including a sale, exchange, transfer
or other disposition of all or substantially all of the Partnership's assets in
a single transaction or a series of related transactions.
D. Notwithstanding Sections 7.3.B and 7.3.C, but subject
to Section 7.3.E, the General Partner shall have the power, without the Consent
of the Partners, to amend this Agreement as may be required to facilitate or
implement any of the following purposes:
(i) to add to the obligations of the General Partner or
surrender any right or power granted to the General
Partner or any Affiliate of the General Partner for
the benefit of the Limited Partners;
(ii) to reflect the issuance of additional Partnership
Interests pursuant to Section 4.3.B, or the
admission, substitution, termination, reduction in
Partnership Units or withdrawal of Partners in
accordance with this Agreement (which may be effected
through the replacement of Exhibit A with an amended
Exhibit A);
(iii) to set forth or amend the designations, rights,
powers, duties, and preferences of the holders of any
additional Partnership Interests issued pursuant to
Article 4;
(iv) to reflect a change that is of an inconsequential
nature and does not adversely affect the Limited
Partners in any material respect, or to cure any
ambiguity in, correct or supplement any provision, or
make other changes with respect to matters arising
under, this Agreement that will not be inconsistent
with law or with the provisions of this Agreement;
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(v) to satisfy any requirements, conditions, or
guidelines contained in any order, directive,
opinion, ruling or regulation of a Federal, state of
local agency or contained in Federal, state or local
law.
(vi) to reflect such changes as are reasonably necessary
for AMB, in its capacity as the sole stockholder of
the General Partner and as the sole general partner
of the Operating Partnership, to maintain its status
as a REIT, including changes which may be
necessitated due to a change in applicable law (or an
authoritative interpretation thereof) or a ruling of
the IRS; and
(vii) to modify, as set forth in the definition of "Capital
Account," the manner in which Capital Accounts are
computed.
The General Partner will provide notice to the Limited Partners when any action
under this Section 7.3.D is taken.
E. Notwithstanding Sections 7.3.B, 7.3.C and 7.3.D, this
Agreement shall not be amended, and no action may be taken by the General
Partner, including in either case through merger or sale of assets of the
Partnership or otherwise, without the Consent of each Common Limited Partner or
Preferred Limited Partner adversely affected if such amendment or action would
(i) convert a Limited Partner's interest in the Partnership into a general
partner's interest (except as the result of the General Partner acquiring such
interest), (ii) modify the limited liability of a Limited Partner, (iii) alter
rights of the Partner to receive distributions pursuant to Article 5 or Section
13.2.A(4) or Article 16 or the allocations specified in Article 6 (except as
permitted pursuant to Section 4.3 and Section 7.3.D), (iv) alter the Redemption
or exchange rights as set forth in Sections 16.5 and 16.8 hereof, respectively,
or (v) amend this Section 7.3.E. Further, no amendment may alter the
restrictions on the General Partner's authority set forth elsewhere in this
Section 7.3 without the Consent specified in such section.
F. The General Partner shall not undertake to dispose of
any Partnership Property specified in the agreements listed in Exhibit G in a
taxable sale or taxable exchange prior to the dates specified in such agreements
without the prior consent of each Limited Partner which contributed all or any
portion of an interest in such Property to the Partnership, as set forth in such
agreements.
Section 7.4. Reimbursement of the General Partner
A. Except as provided in this Section 7.4 and elsewhere
in this Agreement (including the provisions of Articles 5 and 6 regarding
distributions, payments and allocations to which it may be entitled), the
General Partner shall not be compensated for its services as general partner of
the Partnership.
B. The General Partner shall be reimbursed on a monthly
basis, or such other basis as the General Partner may determine in its sole and
absolute discretion, for all expenses it incurs relating to the ownership of
interests in and operation of, or for the benefit of, the
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Partnership. Such reimbursements shall be in addition to any reimbursement to
the General Partner as a result of indemnification pursuant to Section 7.7.
C. If and to the extent any reimbursements to the
General Partner pursuant to this Section 7.4 constitute gross income of the
General Partner (as opposed to the repayment of advances made by the General
Partner on behalf of the Partnership), such amounts shall constitute guaranteed
payments within the meaning of Section 707(c) of the Code, shall be treated
consistently therewith by the Partnership and all Partners, and shall not be
treated as distributions for purposes of computing the Partners' Capital
Accounts.
Section 7.5. Outside Activities of the General Partner
Without the Consent of the Limited Partners, the General
Partner shall not, directly or indirectly, enter into or conduct any business,
other than in connection with the ownership, acquisition and disposition of
Partnership Interests as a General Partner and the management of the business of
the Partnership and such activities as are incidental to the same and activities
incidental to the ownership of interests permitted by the next succeeding
sentence. Without the Consent of the Limited Partners, the General Partner shall
not, directly or indirectly, participate in or otherwise acquire any interest in
any real or personal property, except its General Partner Interest, its interest
in any Subsidiary Partnership(s) (held directly or indirectly through a
Qualified REIT Subsidiary) that the General Partner holds in order to maintain
such Subsidiary Partnership's status as a partnership, and such bank accounts,
similar instruments or other short-term investments as it deems necessary to
carry out its responsibilities contemplated under this Agreement and the REIT
Charter. The General Partner's General Partner Interest in the Partnership, and
interests in such short-term liquid investments, bank accounts or similar
instruments as the General Partner deems necessary to carry out its
responsibilities contemplated under this Agreement and the Charter are interests
which the General Partner is permitted to acquire and hold for purposes of this
Section 7.5.
Section 7.6. Employee Benefit Plans
The General Partner, in its sole and absolute discretion and
without the approval of the Limited Partners, may propose and adopt on behalf of
the Partnership employee benefit plans funded by the Partnership for the benefit
of employees of the General Partner, the Partnership, Subsidiaries of the
Partnership or any Affiliate of any of them in respect of services performed,
directly or indirectly, for the benefit of the Partnership, the General Partner,
or any of the Partnership's Subsidiaries.
Section 7.7. Indemnification
A. The Partnership shall indemnify an Indemnitee from
and against any and all losses, claims, damages, liabilities, joint or several,
expenses (including legal fees and expenses), judgments, fines, settlements, and
other amounts arising from any and all claims, demands, actions, suits or
proceedings, civil, criminal, administrative or investigative, that relate to
the operations of the Partnership as set forth in this Agreement in which any
Indemnitee may be involved, or is threatened to be involved, as a party or
otherwise, unless it is established that: (i) the act or omission of the
Indemnitee was material to the matter giving rise to the proceeding
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and either was committed in bad faith or was the result of active and deliberate
dishonesty; (ii) the Indemnitee actually received an improper personal benefit
in money, property or services; or (iii) in the case of any criminal proceeding,
the Indemnitee had reasonable cause to believe that the act or omission was
unlawful. Without limitation, the foregoing indemnity shall extend to any
liability of any Indemnitee, pursuant to a loan guaranty or otherwise, for any
indebtedness of the Partnership or any Subsidiary of the Partnership (including,
without limitation, any indebtedness which the Partnership or any Subsidiary of
the Partnership has assumed or taken subject to), and the General Partner is
hereby authorized and empowered, on behalf of the Partnership, to enter into one
or more indemnity agreements consistent with the provisions of this Section 7.7
in favor of any Indemnitee having or potentially having liability for any such
indebtedness. The termination of any proceeding by judgment, order or settlement
does not create a presumption that the Indemnitee did not meet the requisite
standard of conduct set forth in this Section 7.7.A. The termination of any
proceeding by conviction or upon a plea of nolo contendere or its equivalent, or
any entry of an order of probation prior to judgment, creates a rebuttable
presumption that the Indemnitee acted in a manner contrary to that specified in
this Section 7.7.A. Any indemnification pursuant to this Section 7.7 shall be
made only out of the assets of the Partnership, and any insurance proceeds from
the liability policy covering the General Partner and any Indemnitee, and
neither the General Partner nor any Limited Partner shall have any obligation to
contribute to the capital of the Partnership or otherwise provide funds to
enable the Partnership to fund its obligations under this Section 7.7.
B. Reasonable expenses incurred by an Indemnitee who is
a party to a proceeding may be paid or reimbursed by the Partnership in advance
of the final disposition of the proceeding upon receipt by the Partnership of
(i) a written affirmation by the Indemnitee of the Indemnitee's good faith
belief that the standard of conduct necessary for indemnification by the
Partnership as authorized in Section 7.7.A has been met and (ii) a written
undertaking by or on behalf of the Indemnitee to repay the amount if it shall
ultimately be determined that the standard of conduct has not been met.
C. The indemnification provided by this Section 7.7
shall be in addition to any other rights to which an Indemnitee or any other
Person may be entitled under any agreement, pursuant to any vote of the
Partners, as a matter of law or otherwise, and shall continue as to an
Indemnitee who has ceased to serve in such capacity.
D. The Partnership may purchase and maintain insurance,
on behalf of the Indemnitees and such other Persons as the General Partner shall
determine, against any liability that may be asserted against or expenses that
may be incurred by any such Person in connection with the Partnership's
activities, regardless of whether the Partnership would have the power to
indemnify such Person against such liability under the provisions of this
Agreement.
E. For purposes of this Section 7.7, the Partnership
shall be deemed to have requested an Indemnitee to serve as fiduciary of an
employee benefit plan whenever the performance by it of its duties to the
Partnership also imposes duties on, or otherwise involves services by, it to the
plan or participants or beneficiaries of the plan; excise taxes assessed on an
Indemnitee with respect to an employee benefit plan pursuant to applicable law
shall constitute fines within the meaning of Section 7.7; and actions taken or
omitted by the Indemnitee with
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respect to an employee benefit plan in the performance of its duties for a
purpose reasonably believed by it to be in the interest of the participants and
beneficiaries of the plan shall be deemed to be for a purpose which is not
opposed to the best interests of the Partnership.
F. In no event may an Indemnitee subject the Limited
Partners to personal liability by reason of the indemnification provisions set
forth in this Agreement.
G. An Indemnitee shall not be denied indemnification in
whole or in part under this Section 7.7 because the Indemnitee had an interest
in the transaction with respect to which the indemnification applies if the
transaction was otherwise permitted by the terms of this Agreement.
H. The provisions of this Section 7.7 are for the
benefit of the Indemnitees, their heirs, successors, assigns and administrators
and shall not be deemed to create any rights for the benefit of any other
Persons. Any amendment, modification or repeal of this Section 7.7 or any
provision hereof shall be prospective only and shall not in any way affect the
limitations on the Partnership's liability to any Indemnitee under this Section
7.7 as in effect immediately prior to such amendment, modification or repeal
with respect to claims arising from or relating to matters occurring, in whole
or in part, prior to such amendment, modification or repeal, regardless of when
such claims may arise or be asserted.
I. If and to the extent any reimbursements to the
General Partner pursuant to this Section 7.7 constitute gross income of the
General Partner (as opposed to the repayment of advances made by the General
Partner on behalf of the Partnership) such amounts shall constitute guaranteed
payments within the meaning of Section 707(c) of the Code, shall be treated
consistently therewith by the Partnership and all Partners, and shall not be
treated as distributions for purposes of computing the Partners' Capital
Accounts.
J. Any indemnification hereunder is subject to, and
limited by, the provisions of Section 17-108 of the Act.
K. In the event the Partnership is made a party to any
litigation or otherwise incurs any loss or expense as a result of or in
connection with any Partner's personal obligations or liabilities unrelated to
Partnership business, such Partner shall indemnify and reimburse the Partnership
for all such loss and expense incurred, including legal fees, and the
Partnership Interest of such Partner may be charged therefor. The liability of a
Partner under this Section 7.7.K shall not be limited to such Partner's
Partnership Interest, but shall be enforceable against such Partner personally.
Section 7.8. Liability of the General Partner
A. Notwithstanding anything to the contrary set forth in
this Agreement, none of the General Partner and any of its officers, directors,
agents and employees shall be liable or accountable in damages or otherwise to
the Partnership, any Partners or any Assignees, or their successors or assigns,
for losses sustained, liabilities incurred or benefits not derived as a result
of errors in judgment or mistakes of fact or law or any act or omission if the
General Partner acted in good faith.
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B. The Limited Partners expressly acknowledge that the
General Partner is acting for the benefit of the Partnership, the Limited
Partners and the General Partner's stockholders collectively, that the General
Partner is under no obligation to give priority to the separate interests of the
Limited Partners or the General Partner's stockholders (including, without
limitation, the tax consequences to Limited Partners or Assignees or to
stockholders) in deciding whether to cause the Partnership to take (or decline
to take) any actions and that the General Partner shall not be liable to the
Partnership or to any Limited Partner for monetary damages for losses sustained,
liabilities incurred, or benefits not derived by Limited Partners in connection
with such decisions; provided, that the General Partner has acted in good faith.
C. Subject to its obligations and duties as General
Partner set forth in Section 7.1.A, the General Partner may exercise any of the
powers granted to it by this Agreement and perform any of the duties imposed
upon it hereunder either directly or by or through its agents. The General
Partner shall not be responsible for any misconduct or negligence on the part of
any such agent appointed by it in good faith.
D. Any amendment, modification or repeal of this Section
7.8 or any provision hereof shall be prospective only and shall not in any way
affect the limitations on the liability of the General Partner and any of its
officers, directors, agents and employees to the Partnership and the Limited
Partners under this Section 7.8 as in effect immediately prior to such
amendment, modification or repeal with respect to claims arising from or
relating to matters occurring, in whole or in part, prior to such amendment,
modification or repeal, regardless of when such claims may arise or be asserted.
Section 7.9. Other Matters Concerning the General Partner
A. The General Partner may rely and shall be protected
in acting or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, bond, debenture,
or other paper or document believed by it to be genuine and to have been signed
or presented by the proper party or parties.
B. The General Partner may consult with legal counsel,
accountants, appraisers, management consultants, investment bankers and other
consultants and advisers selected by it, and any act taken or omitted to be
taken in reliance upon the opinion of such Persons as to matters which such
General Partner reasonably believes to be within such Person's professional or
expert competence shall be conclusively presumed to have been done or omitted in
good faith and in accordance with such opinion.
C. The General Partner shall have the right, in respect
of any of its powers or obligations hereunder, to act through any of its duly
authorized officers and a duly appointed attorney or attorneys-in-fact. Each
such attorney shall, to the extent provided by the General Partner in the power
of attorney, have full power and authority to do and perform all and every act
and duty which is permitted or required to be done by the General Partner
hereunder.
D. Notwithstanding any other provisions of this
Agreement or any non-mandatory provision of the Act, any action of the General
Partner on behalf of the Partnership or any decision of the General Partner to
refrain from acting on behalf of the Partnership,
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undertaken in the good faith belief that such action or omission is necessary or
advisable in order to protect the ability of AMB, in its capacity as the sole
stockholder of the General Partner and as the sole general partner of the
Operating Partnership, for so long as AMB has determined to qualify as a REIT,
to (i) continue to qualify as a REIT or (ii) except with respect to the
distribution of Available Cash to the Series C Limited Partners in accordance
with Section 16.3 avoid AMB incurring any taxes under Section 857 or Section
4981 of the Code, is expressly authorized under this Agreement and is deemed
approved by all of the Limited Partners.
E. So long as the General Partner holds any interest in
the Partnership (as either a General Partner or Limited Partner), the General
Partner shall have "management rights" (as such term is defined in the Plan
Asset Regulation) with respect to the Partnership and its Properties to the
extent necessary to qualify AMB as a "venture capital operating company" (as
such term is defined in the Plan Asset Regulation).
Section 7.10. Title to Partnership Assets
Title to Partnership assets, whether real, personal or mixed
and whether tangible or intangible, shall be deemed to be owned by the
Partnership as an entity, and no Partners, individually or collectively, shall
have any ownership interest in such Partnership assets or any portion thereof.
Title to any or all of the Partnership assets may be held in the name of the
Partnership, the General Partner or one or more nominees, as the General Partner
may determine, including Affiliates of the General Partner. The General Partner
hereby declares and warrants that any Partnership assets for which legal title
is held in the name of the General Partner or any nominee or Affiliate of the
General Partner shall be deemed held by the General Partner or such nominee or
Affiliate for the use and benefit of the Partnership in accordance with the
provisions of this Agreement; provided, however, that the General Partner shall
use its best efforts to cause beneficial and record title to such assets to be
vested in the Partnership as soon as reasonably practicable. All Partnership
assets shall be recorded as the property of the Partnership in its books and
records, irrespective of the name in which legal title to such Partnership
assets is held.
Section 7.11. Reliance by Third Parties
Notwithstanding anything to the contrary in this Agreement,
any Person dealing with the Partnership shall be entitled to assume that the
General Partner has full power and authority to encumber, sell or otherwise use
in any manner any and all assets of the Partnership and to enter into any
contracts on behalf of the Partnership, and such Person shall be entitled to
deal with the General Partner as if it were the Partnership's sole party in
interest, both legally and beneficially. Each Limited Partner hereby waives any
and all defenses or other remedies which may be available against such Person to
contest, negate or disaffirm any action of the General Partner in connection
with any such dealing. In no event shall any Person dealing with the General
Partner or its representatives be obligated to ascertain that the terms of this
Agreement have been complied with or to inquire into the necessity or expedience
of any act or action of the General Partner or its representatives. Each and
every certificate, document or other instrument executed on behalf of the
Partnership by the General Partner or its representatives shall be conclusive
evidence in favor of any and every Person relying thereon or claiming thereunder
that (i) at the time of the execution and delivery of such certificate, document
or instrument, this
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Agreement was in full force and effect, (ii) the Person executing and delivering
such certificate, document or instrument was duly authorized and empowered to do
so for and on behalf of the Partnership and (iii) such certificate, document or
instrument was duly executed and delivered in accordance with the terms and
provisions of this Agreement and is binding upon the Partnership.
ARTICLE 8.
RIGHTS AND OBLIGATIONS OF LIMITED PARTNERS
Section 8.1. Limitation of Liability
The Limited Partners shall have no liability under this
Agreement except as expressly provided in this Agreement or under the Act.
Section 8.2. Management of Business
No Limited Partner or Assignee (other than the General
Partner, any of its Affiliates or any officer, director, employee, general
partner, agent or trustee of the General Partner, the Partnership or any of
their Affiliates, in their capacity as such) shall take part in the operations,
management or control (within the meaning of the Act) of the Partnership's
business, transact any business in the Partnership's name or have the power to
sign documents for or otherwise bind the Partnership. Notwithstanding the
foregoing, the General Partner may be removed by the Limited Partners, pursuant
to and in accordance with Section 7.1. Upon the removal of the General Partner,
the Common Limited Partners shall select a successor General Partner, who shall
upon the acceptance of such selection be admitted as a successor General Partner
pursuant to Section 12.1 hereof. The transaction of any such business by the
General Partner, any of its Affiliates or any officer, director, employee,
general partner, agent or trustee of the General Partner, the Partnership or any
of their Affiliates, in their capacity as such, shall not affect, impair or
eliminate the limitations on the liability of the Limited Partners or Assignees
under this Agreement.
Section 8.3. Outside Activities of Limited Partners
Subject to any agreements entered into by a Limited Partner or
its Affiliates with the General Partner, Partnership or a Subsidiary, any
Limited Partner and any officer, director, employee, agent, trustee, Affiliate
or stockholder of any Limited Partner shall be entitled to and may have business
interests and engage in business activities in addition to those relating to the
Partnership, including business interests and activities in direct competition
with the Partnership or that are enhanced by the activities of the Partnership.
Neither the Partnership nor any Partners shall have any rights by virtue of this
Agreement in any business ventures of any Limited Partner or Assignee. Subject
to such agreements, none of the Limited Partners nor any other Person shall have
any rights by virtue of this Agreement or the partnership relationship
established hereby in any business ventures of any other Person, other than the
Limited Partners benefiting from the business conducted by the General Partner,
and such other Person shall have no obligation pursuant to this Agreement to
offer any interest in any such business ventures to the Partnership, any Limited
Partner or any such other Person, even if such opportunity is of a character
which, if presented to the Partnership, any Limited Partner or such other
Person, could be taken by such other Person.
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Section 8.4. Return of Capital
Except pursuant to the Redemption and exchange rights set
forth in Sections 16.5 and 16.8, no Limited Partner shall be entitled to the
withdrawal or return of his or her Capital Contribution, except to the extent of
distributions made pursuant to this Agreement or upon termination of the
Partnership as provided herein. Except as expressly set forth herein with
respect to the rights, priorities and preferences of the Preferred Limited
Partners holding any series of Preferred Units, no Limited Partner or Assignee
shall have priority over any other Limited Partner or Assignee either as to the
return of Capital Contributions, or as otherwise expressly provided in this
Agreement, as to profits, losses, distributions or credits.
Section 8.5. Rights of Limited Partners Relating to the
Partnership
A. In addition to other rights provided by this
Agreement or by the Act, and except as limited by Section 8.5.B, each Limited
Partner shall have the right, for a purpose reasonably related to such Limited
Partner's interest as a limited partner in the Partnership, upon written demand
with a statement of the purpose of such demand and at the Partnership's expense:
(i) to obtain a copy of the most recent annual and
quarterly reports filed with the Securities and
Exchange Commission by AMB pursuant to the Exchange
Act, and each communication sent to the stockholders
of AMB;
(ii) to obtain a copy of the Partnership's Federal, state
and local income tax returns for each Partnership
Year;
(iii) to obtain a current list of the name and last known
business, residence or mailing address of each
Partner;
(iv) to obtain a copy of this Agreement and the
Certificate and all amendments thereto, together with
executed copies of all powers of attorney pursuant to
which this Agreement, the Certificate and all
amendments thereto have been executed; and
(v) to obtain true and full information regarding the
amount of cash and a description and statement of any
other property or services contributed by each
Partner and which each Partner has agreed to
contribute in the future, and the date on which each
became a Partner.
B. Notwithstanding any other provision of this Section
8.5, the General Partner may keep confidential from the Limited Partners, for
such period of time as the General Partner determines in its sole and absolute
discretion to be reasonable, any information that (i) the General Partner
believes to be in the nature of trade secrets or other information the
disclosure of which the General Partner in good faith believes is not in the
best interests of the Partnership or (ii) the Partnership or the General Partner
is required by law or by agreements with unaffiliated third parties to keep
confidential.
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ARTICLE 9.
BOOKS, RECORDS, ACCOUNTING AND REPORTS
Section 9.1. Records and Accounting
The General Partner shall keep or cause to be kept at the
principal office of the Partnership appropriate books and records with respect
to the Partnership's business, including without limitation, all books and
records necessary to provide to the Limited Partners any information, lists and
copies of documents required to be provided pursuant to Section 9.3. Any records
maintained by or on behalf of the Partnership in the regular course of its
business may be kept on, or be in the form of, punch cards, magnetic tape,
photographs, micrographics or any other information storage device; provided,
that the records so maintained are convertible into clearly legible written form
within a reasonable period of time. The books of the Partnership shall be
maintained, for financial and tax reporting purposes, on an accrual basis in
accordance with generally accepted accounting principles.
Section 9.2. Fiscal Year
The fiscal year of the Partnership shall be the calendar year.
Section 9.3. Reports
A. (1) As soon as practicable, but in no event later
than the earlier to occur of (a) 105 days after the close of each Partnership
Year and (b) five (5) business days following the date on which Company files
its annual report in respect of a fiscal year on Form 10-K, or such other
applicable form ("Form 10-K"), with the Securities and Exchange Commission (the
"Commission"), a complete copy of Company's audited financial statements for
such fiscal year including a balance sheet, income statement and cash flow
statement for such fiscal year prepared and audited by an independent nationally
recognized firm of certified public accountants in accordance with GAAP and (2)
not later than fifteen (15) days after the date documents are delivered in
clause (A)(1) above, the consolidating balance sheet, cash flow statement and
income statement of the Operating Partnership for such fiscal year, prepared by
the Company; and
B. (1) As soon as practicable, but in no event later
than five (5) business days following the date on which Company files its
quarterly report in respect of a fiscal quarter on Form 10-Q, or such other
applicable form ("Form 10-Q"), with the Commission, a complete copy of the
Company's unaudited quarterly financial statements for such fiscal quarter
including a balance sheet, income statement and cash flow statement for such
fiscal quarter prepared in accordance with GAAP and (2) not later than fifteen
(15) days after the date documents are delivered in clause (B)(1) above, the
consolidating balance sheet, cash flow statement and income statement of the
Operating Partnership for such fiscal quarter, prepared and certified by the
Company.
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Section 9.4. Nondisclosure of Certain Information
Notwithstanding the provisions of Sections 9.1 and 9.3, the
General Partner may keep confidential from the Limited Partners any information
that the General Partner believes to be in the nature of trade secrets or other
information the disclosure of which the General Partner in good faith believes
is not in the best interests of the Partnership or which the Partnership is
required by law or by agreements with unaffiliated third parties to keep
confidential.
ARTICLE 10.
TAX MATTERS
Section 10.1. Preparation of Tax Returns
The General Partner shall arrange for the preparation and
timely filing of all returns of Partnership income, gains, deductions, losses
and other items required of the Partnership for Federal and state income tax
purposes and shall use all reasonable efforts to furnish, within ninety (90)
days of the close of each taxable year, the tax information reasonably required
by Limited Partners for Federal and state income tax reporting purposes. Each
Limited Partner shall promptly provide the General Partner with such information
relating to any Contributed Property contributed by such Limited Partner to the
Partnership.
Section 10.2. Tax Elections
Except as otherwise provided herein, the General Partner
shall, in its sole and absolute discretion, determine whether to make any
available election pursuant to the Code, including the election under Section
754 of the Code. The General Partner shall have the right to seek to revoke any
such election (including without limitation, any election under Section 754 of
the Code) upon the General Partner's determination in its sole and absolute
discretion that such revocation is the best interests of the Partners.
Section 10.3. Tax Matters Partner
A. The General Partner shall be the "tax matters
partner" of the Partnership for Federal income tax purposes. Pursuant to Section
6223(c) of the Code, upon receipt of notice from the IRS of the beginning of an
administrative proceeding with respect to the Partnership, the tax matters
partner shall furnish the IRS with the name, address and profit interest of each
of the Limited Partners and Assignees; provided, however, that such information
is provided to the Partnership by the Limited Partners and Assignees.
B. The tax matters partner is authorized, but not required:
(i) to enter into any settlement with the IRS with
respect to any administrative or judicial proceedings
for the adjustment of Partnership items required to
be taken into account by a Partner for income tax
purposes (such administrative proceedings being
referred to as a "tax audit" and such judicial
proceedings being referred to as "judicial review"),
and in the settlement agreement the tax matters
partner may expressly state that such
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agreement shall bind all Partners, except that such
settlement agreement shall not bind any Partner (a)
who (within the time prescribed pursuant to the Code
and Regulations) files a statement with the IRS
providing that the tax matters partner shall not have
the authority to enter into a settlement agreement on
behalf of such Partner or (b) who is a "notice
partner" (as defined in Section 6231 of the Code) or
a member of a "notice group" (as defined in Section
6223(b)(2) of the Code);
(ii) in the event that a notice of a final administrative
adjustment at the Partnership level of any item
required to be taken into account by a Partner for
tax purposes (a "final adjustment") is mailed to the
tax matters partner, to seek judicial review of such
final adjustment, including the filing of a petition
for readjustment with the Tax Court or the United
States Claims Court, or the filing of a complaint for
refund with the District Court of the United States
for the district in which the Partnership's principal
place of business is located;
(iii) to intervene in any action brought by any other
Partner for judicial review of a final adjustment;
(iv) to file a request for an administrative adjustment
with the IRS at any time and, if any part of such
request is not allowed by the IRS, to file an
appropriate pleading (petition or complaint) for
judicial review with respect to such request;
(v) to enter into an agreement with the IRS to extend the
period for assessing any tax which is attributable to
any item required to be taken into account by a
Partner for tax purposes, or an item affected by such
item; and
(vi) to take any other action on behalf of the Partners of
the Partnership in connection with any tax audit or
judicial review proceeding to the extent permitted by
applicable law or regulations.
The taking of any action and the incurring of any expense by
the tax matters partner in connection with any such proceeding, except to the
extent required by law, is a matter in the sole and absolute discretion of the
tax matters partner and the provisions relating to indemnification of the
General Partner set forth in Section 7.7 shall be fully applicable to the tax
matters partner in its capacity as such.
C. The tax matters partner shall receive no compensation
for its services. All third party costs and expenses incurred by the tax matters
partner in performing its duties as such (including legal and accounting fees)
shall be borne by the Partnership. Nothing herein shall be construed to restrict
the Partnership from engaging an accounting firm to assist the tax matters
partner in discharging its duties hereunder, so long as the compensation paid by
the Partnership for such services is reasonable.
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Section 10.4. Organizational Expenses
The Partnership shall elect to deduct expenses, if any,
incurred by it in organizing the Partnership ratably over a sixty (60) month
period as provided in Section 709 of the Code.
Section 10.5. Withholding
Each Limited Partner hereby authorizes the Partnership to
withhold from or pay on behalf of or with respect to such Limited Partner any
amount of Federal, state, local, or foreign taxes that the General Partner
determines that the Partnership is required to withhold or pay with respect to
any amount distributable or allocable to such Limited Partner pursuant to this
Agreement, including, without limitation, any taxes required to be withheld or
paid by the Partnership pursuant to Sections 1441, 1442, 1445 or 1446 of the
Code. Any amount paid on behalf of or with respect to a Limited Partner shall
constitute a loan by the Partnership to such Limited Partner, which loan shall
be repaid by such Limited Partner within fifteen (15) days after notice from the
General Partner that such payment must be made unless (i) the Partnership
withholds such payment from a distribution which would otherwise be made to the
Limited Partner or (ii) the General Partner determines, in its sole and absolute
discretion, that such payment may be satisfied out of the available funds of the
Partnership which would, but for such payment, be distributed to the Limited
Partner. Any amounts withheld pursuant to the foregoing clauses (i) or (ii)
shall be treated as having been distributed to such Limited Partner. Each
Limited Partner hereby unconditionally and irrevocably grants to the Partnership
a security interest in such Limited Partner's Partnership Interest to secure
such Limited Partner's obligation to pay to the Partnership any amounts required
to be paid pursuant to this Section 10.5. In the event that a Limited Partner
fails to pay any amounts owed to the Partnership pursuant to this Section 10.5
when due, the General Partner may, in its sole and absolute discretion, elect to
make the payment to the Partnership on behalf of such defaulting Limited
Partner, and in such event shall be deemed to have loaned such amount to such
defaulting Limited Partner and shall succeed to all rights and remedies of the
Partnership as against such defaulting Limited Partner (including, without
limitation, the right to receive distributions and the holding of a security
interest in such Limited Partner's Partnership Interest). Any amounts payable by
a Limited Partner hereunder shall bear interest at the base rate on corporate
loans at large United States money center commercial banks, as published from
time to time in the Wall Street Journal, plus two percentage points (but not
higher than the maximum lawful rate) from the date such amount is due (i.e., 15
days after demand) until such amount is paid in full. Each Limited Partner shall
take such actions as the Partnership or the General Partner shall request in
order to perfect or enforce the security interest created hereunder.
ARTICLE 11.
TRANSFERS AND WITHDRAWALS
Section 11.1. Transfer
A. The term "transfer," when used in this Article 11
with respect to a Partnership Interest, shall be deemed to refer to a
transaction by which the General Partner purports to assign its General Partner
Interest to another Person or by which a Limited Partner purports to assign its
Limited Partnership Interest to another Person, and includes a sale,
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assignment, gift (outright or in trust), pledge, encumbrance, hypothecation,
mortgage, exchange or any other disposition by law or otherwise. Except to the
extent otherwise specified, the term "transfer" when used in this Article 11
does not include any exchange for Series C Preferred Shares pursuant to Section
16.8. No part of the interest of a Limited Partner shall be subject to the
claims of any creditor, any spouse for alimony or support, or to legal process,
and may not be voluntarily or involuntarily alienated or encumbered, except as
may be specifically provided for in this Agreement.
B. No Partnership Interest shall be transferred, in
whole or in part, except in accordance with the terms and conditions set forth
in this Article 11. Any transfer or purported transfer of a Partnership Interest
not made in accordance with this Article 11 shall be null and void ab initio
unless otherwise consented by the General Partner in its sole and absolute
discretion.
Section 11.2. Transfer of General Partner's and Common
Limited Partner's Partnership Interest
A. The General Partner shall not withdraw from the
Partnership and shall not transfer all or any portion of its interest in the
Partnership (whether by sale, statutory merger, consolidation, liquidation or
otherwise). Any attempted transfer of the General Partner Interest shall be void
ab initio. To the extent the prior sentence does not have the effect of
preventing any such proposed transfer, the transfer shall cause the dissolution
of the Partnership.
B. Except as otherwise provided in this Section 11.2.B,
no Common Limited Partner shall withdraw from or transfer all or any portion of
its interest in the Partnership (whether by sale, statutory merger,
consolidation, liquidation or otherwise). Any attempted transfer of a Common
Limited Partner Interest contrary to this Section 11.2.B shall be void ab
initio. To the extent the prior sentence does not have the effect of preventing
any such proposed transfer, the transfer shall cause the dissolution of the
Partnership.
C. Notwithstanding Section 11.2.B, any Common Limited
Partner other than the Operating Partnership shall be permitted to transfer,
with the consent of the General Partner (which consent may be given or withheld
in the General Partner's sole and absolute discretion), all or any portion of
its Partnership Interest to the Operating Partnership.
Section 11.3. Preferred Limited Partners' Rights to
Transfer
A. Any Preferred Limited Partner may, at any time
without the consent of the General Partner, (i) transfer all or any portion of
its Partnership Interest to the General Partner, (ii) transfer all or any
portion of its Partnership Interest to an Affiliate controlled thereby or to an
Immediate Family member, subject to the provisions of Section 11.6, (iii)
transfer all or any portion of its Partnership Interest to a trust for the
benefit of a charitable beneficiary or to a charitable foundation, subject to
the provisions of Section 11.6 and (iv) subject to the provisions of Section
11.6, (a) pledge (a "Pledge") all or any portion of its Partnership Interest to
a lending institution, which is not an Affiliate of such Preferred Limited
Partner, as collateral or security for a bona fide loan or other extension of
credit, or (b) transfer such pledged Partnership Interest to such lending
institution in connection with the exercise of remedies under such loan or
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extension of credit. In addition, each Preferred Limited Partner or Assignee
(resulting from a transfer made pursuant to clauses (i)-(iv) of the preceding
sentence) shall have the right to transfer all or any portion of its Partnership
Interest, subject to the provisions of Section 11.6, provided that any transfer
of a Partnership Interest shall be made only to Qualified Transferees.
It is a condition to any transfer otherwise permitted
hereunder that the transferee assumes by operation of law or express agreement
all of the obligations of the transferor Preferred Limited Partner under this
Agreement with respect to such transferred Partnership Interest and no such
transfer (other than pursuant to a statutory merger or consolidation wherein all
obligations and liabilities of the transferor Partner are assumed by a successor
corporation by operation of law) shall relieve the transferor Partner of its
obligations under this Agreement without the approval of the General Partner, in
its reasonable discretion. Notwithstanding the foregoing, any transferee of any
transferred Partnership Interest shall be subject to any and all ownership
limitations contained in the Charter, which may limit or restrict such
transferee's ability to exercise its Redemption rights or the exchange rights
set forth in Section 16.8 and to the representations set forth in Section 3.4.D.
Any transferee, whether or not admitted as a Substituted Limited Partner, shall
take subject to the obligations of the transferor hereunder. Unless admitted as
a Substituted Limited Partner, no transferee, whether by a voluntary transfer,
by operation of law or otherwise, shall have any rights hereunder, other than
the rights of an Assignee as provided in Section 11.5.
B. If a Preferred Limited Partner is subject to
Incapacity, the executor, administrator, trustee, committee, guardian,
conservator, or receiver of such Limited Partner's estate shall have all the
rights of a Preferred Limited Partner, but not more rights than those enjoyed by
other Preferred Limited Partners, for the purpose of settling or managing the
estate, and such power as the Incapacitated Preferred Limited Partner possessed
to transfer all or any part of his or its interest in the Partnership. The
Incapacity of a Limited Partner, in and of itself, shall not dissolve or
terminate the Partnership.
C. The General Partner may prohibit any transfer
otherwise permitted under this Section 11.3 by a Preferred Limited Partner of
his or her Partnership Units if, in the opinion of legal counsel to the
Partnership, such transfer would require the filing of a registration statement
under the Securities Act by the Partnership or would otherwise violate any
Federal or state securities laws or regulations applicable to the Partnership or
the Partnership Unit.
D. No transfer by a Preferred Limited Partner of his or
her Partnership Units (including any Redemption or exchange rights set forth in
Sections 16.5 and 16.8, or any other acquisition of Common Units or Series C
Preferred Units by the General Partner, AMB or the Partnership) may be made to
any person if (i) in the opinion of legal counsel for the Partnership, it could
result in the Partnership being treated as an association taxable as a
corporation or (ii) absent the consent of the General Partner, which may be
given or withheld in its sole and absolute discretion, such transfer could be
treated as effectuated through an "established securities market" or a
"secondary market (or the substantial equivalent thereof)" within the meaning of
Section 7704 of the Code.
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E. No transfer of any Preferred Partnership Units may be
made to a lender to the Partnership or any Person who is related (within the
meaning of Section 1.752-4(b) of the Regulations) to any lender to the
Partnership whose loan constitutes a Nonrecourse Liability, without the consent
of the General Partner, in its sole and absolute discretion; provided, that as a
condition to such consent, the lender will be required to enter into an
arrangement with the Partnership and the General Partner to redeem or exchange
for the specified amount of Series C Preferred Shares any Partnership Units in
which a security interest is held simultaneously with the time at which such
lender would be deemed to be a partner in the Partnership for purposes of
allocating liabilities to such lender under Section 752 of the Code.
F. No Preferred Limited Partner may withdraw from the
Partnership except as a result of transfer, Redemption or exchange of all of its
Partnership Units pursuant hereto.
Section 11.4. Substituted Limited Partners
A. Any Preferrred Limited Partner shall have the right
to substitute a transferee permitted by this Agreement as a Limited Partner in
his or her place. The General Partner shall have the right to consent to the
admission of a permitted transferee of the interest of any other Limited
Partner, as a Substituted Limited Partner, pursuant to this Section 11.4, which
consent may be given or withheld by the General Partner in its sole and absolute
discretion. The General Partner's failure or refusal to permit a transferee of
any such interests to become a Substituted Limited Partner shall not give rise
to any cause of action against the Partnership or any Partner.
B. A transferee who has been admitted as a Substituted
Limited Partner in accordance with this Article 11 shall have all the rights and
powers and be subject to all the restrictions and liabilities of a Limited
Partner under this Agreement. The admission of any transferee as a Substituted
Limited Partner shall be subject to the transferee executing and delivering to
the Partnership an acceptance of all of the terms and conditions of this
Agreement (including, without limitation, the provisions of Section 2.4 and such
other documents or instruments as may be required to effect the admission, each
in form and substance satisfactory to the General Partner) and the
acknowledgment by such transferee that each of the representations and
warranties set forth in Section 3.4 are true and correct with respect to such
transferee as of the date of the transfer of the Partnership Interest to such
transferee and will continue to be true to the extent required by such
representations and warranties.
C. Upon the admission of a Substituted Limited Partner,
the General Partner shall amend Exhibit A to reflect the name, address, number
of Partnership Units, and Percentage Interest of such Substituted Limited
Partner and to eliminate or adjust, if necessary, the name, address and interest
of the predecessor of such Substituted Limited Partner.
Section 11.5. Assignees
If the General Partner, with respect to a transferee requiring
the General Partner's consent, does not consent, in its sole and absolute
discretion, to the admission of any permitted transferee under Section 11.3 as a
Substituted Limited Partner, as described in Section 11.4, such transferee shall
be considered an Assignee for purposes of this Agreement. An Assignee shall be
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entitled to all the rights of an assignee of a limited partnership interest
under the Act, including the right to receive distributions from the Partnership
and the share of Net Income, Net Losses, gain and loss attributable to the
Partnership Units assigned to such transferee, the rights to transfer the
Partnership Units provided in this Article 11, and the right of exchange for
Series C Preferred Shares set forth in Section 16.8, but shall not be deemed to
be a holder of Partnership Units for any other purpose under this Agreement, and
shall not be entitled to effect a Consent with respect to such Partnership Units
on any matter presented to the Limited Partners for approval (such Consent
remaining with the transferor Limited Partner). In the event any such transferee
desires to make a further assignment of any such Partnership Units, such
transferee shall be subject to all the provisions of this Article 11 to the same
extent and in the same manner as any Limited Partner desiring to make an
assignment of Partnership Units. Notwithstanding anything contained in this
Agreement to the contrary, as a condition to becoming an Assignee, any
prospective Assignee must first execute and deliver to the Partnership an
acknowledgment that each of the representations and warranties set forth in
Section 3.4 hereof are true and correct with respect to such prospective
Assignee as of the date of the prospective assignment of the Partnership
Interest to such prospective Assignee and will continue to be true to the extent
required by such representations or warranties.
Section 11.6. General Provisions
A. No Limited Partner may withdraw from the Partnership
other than as a result of (i) a permitted transfer of all of such Limited
Partner's Partnership Units in accordance with this Article 11 and the
transferee(s) of such Units being admitted to the Partnership as a Substituted
Limited Partner(s) or (ii) pursuant to the Redemption or exchange of all of such
Limited Partner's Series C Preferred Units under Section 16.8.
B. Any Limited Partner who shall transfer all of such
Limited Partner's Partnership Units in a transfer permitted pursuant to this
Article 11 where such transferee was admitted as a Substituted Limited Partner
or pursuant to the exercise of its rights of Redemption or exchange of all of
such Limited Partner's Series C Preferred Units under Section 16.8, shall cease
to be a Limited Partner.
C. Transfers pursuant to this Article 11 may only be
made effective on the last day of the month set forth on the written instrument
of transfer, unless the General Partner otherwise agrees.
D. If any Partnership Interest is transferred, assigned
or redeemed during any quarterly segment of the Partnership's fiscal year in
compliance with the provisions of this Article 11 or transferred or redeemed
pursuant to Section 16.5, on any day other than the first day of a Partnership
Year, then Net Income, Net Losses, each item thereof and all other items
attributable to such Partnership Interest for such fiscal year shall be divided
and allocated between the transferor Partner and the transferee Partner by
taking into account their varying interests during the fiscal year in accordance
with Section 706(d) of the Code, using the interim closing of the books method.
Except as otherwise required by Section 706(d) of the Code or as otherwise
specified in this Agreement or as otherwise determined by the General Partner
(to the extent consistent with Section 706(d) of the Code), solely for purposes
of making such
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allocations, each of such items for the calendar month in which the transfer,
assignment or redemption occurs shall be allocated among all the Partners and
Assignees in a manner determined by the General Partner in its sole discretion.
E. In addition to any other restrictions on transfer
herein contained, including without limitation the provisions of this Article 11
and Section 2.6, in no event may any transfer or assignment of a Partnership
Interest by any Partner (including by way of a Redemption or exchange for Series
C Preferred Shares, or any other acquisition of Common Units or Series C
Preferred Units by the Partnership, AMB or the General Partner) be made (i) to
any person or entity who lacks the legal right, power or capacity to own a
Partnership Interest; (ii) in violation of applicable law; (iii) except with the
consent of the General Partner, which may be given or withheld in its sole and
absolute discretion, of any component portion of a Partnership Interest, such as
the Capital Account, or rights to distributions, separate and apart from all
other components of a Partnership Interest; (iv) except with the consent of the
General Partner, which may be given or withheld in its sole and absolute
discretion, if in the opinion of legal counsel to the Partnership such transfer
would cause a termination of the Partnership for Federal or state income tax
purposes (except as a result of the Redemption or exchange for Preferred Shares
or cash pursuant to Sections 16.5 and 16.8, of all Partnership Units held by all
Preferred Limited Partners); (v) if in the opinion of counsel to the Partnership
such transfer would cause the Partnership to cease to be classified as a
partnership for Federal or state income tax purposes (except as a result of a
Redemption or exchange for Preferred Shares pursuant to Sections 16.5 and 16.8
of all Partnership Units held by all Limited Partners); (vi) if such transfer
would cause the Partnership to become, with respect to any employee benefit plan
subject to Title I of ERISA, a "party-in-interest" (as defined in Section 3(14)
of ERISA) or a "disqualified person" (as defined in Section 4975(c) of the
Code); (vii) if such transfer would, in the opinion of counsel to the
Partnership, cause any portion of the assets of the Partnership to constitute
assets of any employee benefit plan pursuant to Department of Labor Regulations
Section 2510.2-101; (viii) if such transfer requires the registration of such
Partnership Interest or requires the registration of the exchange of such
Partnership Interests for any capital stock pursuant to any applicable Federal
or state securities laws; (ix) except with the consent of the General Partner,
which may be given or withheld in its sole and absolute discretion, if such
transfer is effectuated through an "established securities market" or a
"secondary market" (or the substantial equivalent thereof) within the meaning of
Section 7704 of the Code or such transfer causes the Partnership to become a
"Publicly Traded Partnership," as such term is defined in Sections 469(k)(2) or
7704(b) of the Code; (x) if such transfer subjects the Partnership to be
regulated under the Investment Company Act of 1940, the Investment Advisors Act
of 1940 or the Employee Retirement Income Security Act of 1974, each as amended;
(xi) if the transferee or assignee of such Partnership Interest is unable to
make the representations set forth in Section 3.4.D or such transfer could
otherwise adversely affect the ability of AMB, in its capacity as the sole
stockholder of General Partner and the sole general partner of the Operating
Partnership, to remain qualified as a REIT; or (xii) if, except with the consent
of the General Partner, which may be given or withheld in its sole and absolute
discretion, such transfer would subject the General Partner to any additional
taxes under Section 857 or Section 4981 of the Code.
F. The General Partner shall monitor the transfers of
interests in the Partnership (including any acquisition of Series C Preferred
Units by the Partnership, AMB or
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the General Partner) to determine (i) if such interests are being traded on an
"established securities market" or a "secondary market (or the substantial
equivalent thereof)" within the meaning of Section 7704 of the Code and (ii)
whether such transfers of interests would result in the Partnership being unable
to qualify for at least one of the "safe harbors" set forth in Regulations
Section 1.7704-1 (or such other applicable guidance subsequently published by
the IRS setting forth safe harbors under which interests will not be treated as
"readily tradable on a secondary market (or the substantial equivalent thereof)"
within the meaning of Section 7704 of the Code) (the "Safe Harbors"). The
General Partner shall have authority (but shall not be required to) to take any
steps it determines are necessary or appropriate in its sole and absolute
discretion to prevent any trading of interests which could cause the Partnership
to become a "publicly traded partnership," or any recognition by the Partnership
of such transfers, or to insure that at least one of the Safe Harbors is met.
ARTICLE 12.
ADMISSION OF PARTNERS
Section 12.1. Admission of Successor General Partner
A successor to all of the General Partner's General Partner
Interest pursuant to Section 11.2 who is proposed to be admitted as a successor
General Partner shall be admitted to the Partnership as the General Partner,
effective upon such transfer. Any such transferee shall carry on the business of
the Partnership without dissolution. In each case, the admission shall be
subject to the successor General Partner executing and delivering to the
Partnership an acceptance of all of the terms and conditions of this Agreement
and such other documents or instruments as may be required to effect the
admission. In the case of such admission on any day other than the first day of
a Partnership Year, all items attributable to the General Partner Interest for
such Partnership Year shall be allocated between the transferring General
Partner and such successor as provided in Article 11.
Section 12.2. Admission of Additional Limited Partners
A. A Person who makes a Capital Contribution to the
Partnership in accordance with this Agreement shall be admitted to the
Partnership as an Additional Limited Partner only upon furnishing to the General
Partner (i) evidence of acceptance in form satisfactory to the General Partner
of all of the terms and conditions of this Agreement, including, without
limitation, the power of attorney granted in Section 2.4 and (ii) such other
documents or instruments as may be required in the discretion of the General
Partner in order to effect such Person's admission as an Additional Limited
Partner.
B. Notwithstanding anything to the contrary in this
Section 12.2, no Person shall be admitted as an Additional Limited Partner
without the consent of the General Partner, which consent may be given or
withheld in the General Partner's sole and absolute discretion. The admission of
any Person as an Additional Limited Partner shall become effective on the date
upon which the name of such Person is recorded on the books and records of the
Partnership, following the receipt of the Capital Contribution in respect of
such Limited Partner, the documents set forth in this Section 12.2.A and the
consent of the General Partner to such admission. If any Additional Limited
Partner is admitted to the Partnership on any day other
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than the first day of a Partnership Year, then Net Income, Net Losses, each item
thereof and all other items allocable among Partners and Assignees for such
Partnership Year shall be allocated among such Limited Partner and all other
Partners and Assignees by taking into account their varying interests during the
Partnership Year in accordance with Section 706(d) of the Code, using the
interim closing of the books method. Solely for purposes of making such
allocations, each of such items for the calendar month in which an admission of
an Additional Limited Partner occurs shall be allocated among all the Partners
and Assignees, including such Additional Limited Partner, in a manner determined
by the General Partner in its sole discretion.
Section 12.3. Amendment of Agreement and Certificate of
Limited Partnership
For the admission to the Partnership of any Partner, the
General Partner shall take all steps necessary and appropriate under the Act to
amend the records of the Partnership and, if necessary, to prepare as soon as
practical an amendment of this Agreement (including an amendment of Exhibit A)
and, if required by law, shall prepare and file an amendment to the Certificate
and may for this purpose exercise the power of attorney granted pursuant to
Section 2.4.
ARTICLE 13.
DISSOLUTION AND LIQUIDATION
Section 13.1. Dissolution
The Partnership shall not be dissolved by the admission of
Substituted Limited Partners or Additional Limited Partners or by the admission
of a successor General Partner in accordance with the terms of this Agreement.
Upon the withdrawal of the General Partner, any successor General Partner
(selected as described in Section 13.1.B below) shall continue the business of
the Partnership. The Partnership shall dissolve, and its affairs shall be wound
up, upon the first to occur of any of the following ("Liquidating Events"):
A. the expiration of its term as provided in Section
2.5;
B. an event of withdrawal of the General Partner, as
defined in the Act, unless, within ninety (90) days after the withdrawal, all of
the remaining Common Limited Partners agree in writing, in their sole and
absolute discretion, to continue the business of the Partnership and to the
appointment, effective as of the date of withdrawal, of a substitute General
Partner;
C. prior to October 15, 2096, an election to dissolve
the Partnership made by the General Partner with the consent of Limited Partners
who hold ninety percent (90%) of the outstanding Units held by Limited Partners;
D. subject to the provisions of Section 7.3.C, an
election to dissolve the Partnership made by the General Partner in its sole and
absolute discretion;
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E. entry of a decree of judicial dissolution of the
Partnership pursuant to the provisions of the Act;
F. the sale or disposition of all or substantially
all of the assets and properties of the Partnership;
G. a final and non-appealable judgment is entered by a
court of competent jurisdiction ruling that the General Partner is bankrupt or
insolvent, or a final and non-appealable order for relief is entered by a court
with appropriate jurisdiction against the General Partner, in each case under
any Federal or state bankruptcy or insolvency laws as now or hereafter in
effect, unless prior to or at the time of the entry of such order or judgment a
Majority in Interest of the Limited Partners remaining consent in writing to
continue the business of the Partnership and to the appointment, effective as of
a date prior to the date of such order or judgment, of a substitute General
Partner.
Section 13.2. Winding Up
A. Upon the occurrence of a Liquidating Event, the
Partnership shall continue solely for the purposes of winding up its affairs in
an orderly manner, liquidating its assets, and satisfying the claims of its
creditors and Partners. No Partner shall take any action that is inconsistent
with, or not necessary to or appropriate for, the winding up of the
Partnership's business and affairs. The General Partner (or, in the event there
is no remaining General Partner, any Person elected by a Majority in Interest of
the Limited Partners (the "Liquidator")) shall be responsible for overseeing the
winding up and dissolution of the Partnership and shall take full account of the
Partnership's liabilities and assets and the Partnership property shall be
liquidated as promptly as is consistent with obtaining the fair value thereof,
and the proceeds therefrom (which may, to the extent determined by the General
Partner, include shares of stock of the General Partner) shall be applied and
distributed in the following order:
(i) First, to the payment and discharge of all of the
Partnership's debts and liabilities to creditors
other than the Partners;
(ii) Second, to the payment and discharge of all of the
Partnership's debts and liabilities to the General
Partner;
(iii) Third, to the payment and discharge of all of the
Partnership's debts and liabilities to the other
Partners; and
(iv) The balance, if any, to the Partners in accordance
with their Capital Account balances determined after
giving effect to all contributions and distributions
for all periods, and after taking into account all
Capital Account adjustments for the Partnership
taxable year during which the liquidation occurs
(other than those made as a result of the liquidating
distribution set forth in this Section 13.2.A(iv)).
The General Partner shall not receive any additional compensation for any
services performed pursuant to this Article 13 other than reimbursement of its
expenses as provided in Section 7.4.
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B. Notwithstanding the provisions of Section 13.2.A
which require liquidation of the assets of the Partnership, but subject to the
order of priorities set forth therein, if prior to or upon dissolution of the
Partnership the Liquidator determines that an immediate sale of part or all of
the Partnership's assets would be impractical or would cause undue loss to the
Partners, the Liquidator may, in its sole and absolute discretion, defer for a
reasonable time the liquidation of any assets except those necessary to satisfy
liabilities of the Partnership (including to those Partners as creditors) and/or
distribute to the Partners, in lieu of cash, as tenants in common and in
accordance with the provisions of Section 13.2.A, undivided interests in such
Partnership assets as the Liquidator deems not suitable for liquidation. Any
such distributions in kind shall be made only if, in the good faith judgment of
the Liquidator, such distributions in kind are in the best interest of the
Partners, and shall be subject to such conditions relating to the disposition
and management of such properties as the Liquidator deems reasonable and
equitable and to any agreements governing the operation of such properties at
such time. The Liquidator shall determine the fair market value of any property
distributed in kind using such reasonable method of valuation as it may adopt.
C. The Partnership shall be terminated when any notes
received in connection with any such sale or disposition referenced in Section
13.1.E above, or in connection with the liquidation of the Partnership have been
paid and all of the cash or property available for application and distribution
under this Agreement have been applied and distributed in accordance with this
Agreement.
Section 13.3. Compliance with Timing Requirements of
Regulations
In the event the Partnership is "liquidated" within the
meaning of Regulations Section 1.704-1(b)(2)(ii)(g), distributions shall be made
pursuant to this Article 13 to the General Partner and Limited Partners who have
positive Capital Accounts in compliance with Regulations Section
1.704-1(b)(2)(ii)(b)(2). If any Partner has a deficit balance in his or her
Capital Account (after giving effect to all contributions, distributions and
allocations for the taxable years, including the year during which such
liquidation occurs), such Partner shall have no obligation to make any
contribution to the capital of the Partnership with respect to such deficit, and
such deficit shall not be considered a debt owed to the Partnership or to any
other Person for any purpose whatsoever, except to the extent otherwise agreed
to by such Partner and the General Partner. In the discretion of the Liquidator
or the General Partner, a pro rata portion of the distributions that would
otherwise be made to the General Partner and Limited Partners pursuant to this
Article 13 may be:
A. distributed to a trust established for the benefit of
the General Partner and Limited Partners for the purposes of liquidating
Partnership assets, collecting amounts owed to the Partnership, and paying any
contingent or unforeseen liabilities or obligations of the Partnership or of the
General Partner arising out of or in connection with the Partnership. The assets
of any such trust shall be distributed to the General Partner and Limited
Partners from time to time, in the reasonable discretion of the Liquidator or
the General Partner, in the same proportions and the amount distributed to such
trust by the Partnership would otherwise have been distributed to the General
Partner and Limited Partners pursuant to this Agreement; or
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B. withheld to establish any reserves deemed necessary
or appropriate for any contingent or unforeseen liabilities or obligations of
the Partnership; and to reflect the unrealized portion of any installment
obligations owed to the Partnership; provided that, such withheld amounts shall
be distributed to the General Partner and Limited Partners as soon as
practicable.
Section 13.4. Deemed Distribution and Recontribution
Notwithstanding any other provision of this Article 13, in the
event the Partnership is liquidated within the meaning of Regulations Section
1.704-1(b)(2)(ii)(g) but no Liquidating Event has occurred, the Partnership's
property shall not be liquidated, the Partnership's liabilities shall not be
paid or discharged, and the Partnership's affairs shall not be wound up.
Instead, the Partnership shall be deemed to have distributed the Partnership
property in kind to the General Partner and Limited Partners, who shall be
deemed to have assumed and taken such property subject to all Partnership
liabilities, all in accordance with their respective Capital Accounts.
Immediately thereafter, the General Partner and Limited Partners shall be deemed
to have recontributed the Partnership property in kind to the Partnership, which
shall be deemed to have assumed and taken such property subject to all such
liabilities.
Section 13.5. Rights of Limited Partners
Except as otherwise provided in this Agreement, each Limited
Partner shall look solely to the assets of the Partnership for the return of his
Capital Contribution and shall have no right or power to demand or receive
property from the General Partner. Except as expressly set forth herein with
respect to the rights, priorities and preferences of the Preferred Limited
Partners holding any series of Preferred Units, no Limited Partner shall have
priority over any other Limited Partner as to the return of his Capital
Contributions, distributions or allocations.
Section 13.6. Notice of Dissolution
In the event a Liquidating Event occurs or an event occurs
that would, but for provisions of Section 13.1, result in a dissolution of the
Partnership, the General Partner shall, within thirty (30) days thereafter,
provide written notice thereof to each of the Partners and to all other parties
with whom the Partnership regularly conducts business (as determined in the
discretion of the General Partner) and shall publish notice thereof in a
newspaper of general circulation in each place in which the Partnership
regularly conducts business (as determined in the discretion of the General
Partner).
Section 13.7. Cancellation of Certificate of Limited
Partnership
Upon the completion of the liquidation of the Partnership cash
and property as provided in Section 13.2, the Partnership shall be terminated
and the Certificate and all qualifications of the Partnership as a foreign
limited partnership in jurisdictions other than the State of Delaware shall be
canceled and such other actions as may be necessary to terminate the Partnership
shall be taken.
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Section 13.8. Reasonable Time for Winding-Up
A reasonable time shall be allowed for the orderly winding-up
of the business and affairs of the Partnership and the liquidation of its assets
pursuant to Section 13.2, in order to minimize any losses otherwise attendant
upon such winding-up, and the provisions of this Agreement shall remain in
effect between the Partners during the period of liquidation.
Section 13.9. Waiver of Partition
Each Partner hereby waives any right to partition of the
Partnership property.
ARTICLE 14.
AMENDMENT OF PARTNERSHIP AGREEMENT; CONSENTS
Section 14.1. Amendments
A. The actions requiring consent or approval of the
Partners or of the Limited Partners pursuant to this Agreement, including
Sections 7.3 and 16.6, or otherwise pursuant to applicable law, are subject to
the procedures in this Article 14.
B. Amendments to this Agreement requiring the consent or
approval of Limited Partners may be proposed by the General Partner or by
Limited Partners holding twenty-five percent (25%) or more of the Partnership
Interests held by Limited Partners. Following such proposal, the General Partner
shall submit any proposed amendment to the Partners or of the Limited Partners,
as applicable. The General Partner shall seek the written consent or approval of
the Partners or of the Limited Partners on the proposed amendment or shall call
a meeting to vote thereon and to transact any other business that it may deem
appropriate. For purposes of obtaining a written consent, the General Partner
may require a response within a reasonable specified time, but not less than
fifteen (15) days, and failure to respond in such time period shall constitute a
consent which is consistent with the General Partner's recommendation (if so
recommended); provided that, an action shall become effective at such time as
requisite consents are received even if prior to such specified time.
Section 14.2. Action by the Partners
A. Meetings of the Partners may be called by the General
Partner and shall be called upon the receipt by the General Partner of a written
request by Limited Partners holding twenty-five percent (25%) or more of the
Partnership Interests held by the Limited Partners that are entitled to vote on
the matters proposed to be voted on at such meeting. The call shall state the
nature of the business to be transacted. Notice of any such meeting shall be
given to all Partners not less than seven days nor more than thirty (30) days
prior to the date of such meeting. Partners may vote in person or by proxy at
such meeting. Whenever the vote of the Percentage Interests of the Partners, or
the Consent of the Partners or Consent of the Limited Partners is permitted or
required under this Agreement, such vote or Consent may be given at a meeting of
Partners or may be given in accordance with the procedure prescribed in Section
14.1.
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B. Any action required or permitted to be taken at a
meeting of the Partners may be taken without a meeting if a written consent
setting forth the action so taken is signed by the Percentage Interests as is
expressly required by this Agreement for the action in question. Such consent
may be in one instrument or in several instruments, and shall have the same
force and effect as a vote of the Percentage Interests of the Partners
(expressly required by this Agreement). Such consent shall be filed with the
General Partner. An action so taken shall be deemed to have been taken at a
meeting held on the effective date so certified.
C. Each Limited Partner may authorize any Person or
Persons to act for him by proxy on all matters in which a Limited Partner is
entitled to participate, including waiving notice of any meeting, or voting or
participating at a meeting. Every proxy must be signed by the Limited Partner or
his attorney-in-fact. No proxy shall be valid after the expiration of eleven
(11) months from the date thereof unless otherwise provided in the proxy. Every
proxy shall be revocable at the pleasure of the Limited Partner executing it.
D. Each meeting of Partners shall be conducted by the
General Partner or such other Person as the General Partner may appoint pursuant
to such rules for the conduct of the meeting as the General Partner or such
other Person deems appropriate.
E. Except as otherwise expressly provided, on matters on
which Limited Partners are entitled to vote, each Limited Partner shall have a
vote equal to the number of Partnership Units held.
ARTICLE 15.
GENERAL PROVISIONS
Section 15.1. Addresses and Notice
Any notice, demand, request or report required or permitted to
be given or made to a Partner or Assignee under this Agreement shall be in
writing and shall be deemed given or made when delivered in person or when sent
by certified first class United States mail, nationally recognized overnight
delivery service or facsimile transmission to the Partner or Assignee at the
address set forth in Exhibit A or such other address as the Partners shall
notify the General Partner in writing.
Section 15.2. Titles and Captions
All article or section titles or captions in this Agreement
are for convenience only. They shall not be deemed part of this Agreement and in
no way define, limit, extend or describe the scope or intent of any provisions
hereof. Except as specifically provided otherwise, references to "Articles" and
"Sections" are to Articles and Sections of this Agreement.
Section 15.3. Pronouns and Plurals
Whenever the context may require, any pronoun used in this
Agreement shall include the corresponding masculine, feminine or neuter forms,
and the singular form of nouns, pronouns and verbs shall include the plural and
vice versa.
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Section 15.4. Further Action
The parties shall execute and deliver all documents, provide
all information and take or refrain from taking action as may be necessary or
appropriate to achieve the purposes of this Agreement.
Section 15.5. Binding Effect
This Agreement shall be binding upon and inure to the benefit
of the parties hereto and their heirs, executors, administrators, successors,
legal representatives and permitted assigns.
Section 15.6. Creditors
Other than as expressly set forth herein with respect to
Indemnitees, none of the provisions of this Agreement shall be for the benefit
of, or shall be enforceable by, any creditor of the Partnership.
Section 15.7. Waiver
No failure or delay by any party to insist upon the strict
performance of any covenant, duty, agreement or condition of this Agreement or
to exercise any right or remedy consequent upon any breach thereof shall
constitute waiver of any such breach or any other covenant, duty, agreement or
condition.
Section 15.8. Counterparts
This Agreement may be executed in counterparts, all of which
together shall constitute one agreement binding on all the parties hereto,
notwithstanding that all such parties are not signatories to the original or the
same counterpart. Each party shall become bound by this Agreement immediately
upon affixing its signature hereto.
Section 15.9. Applicable Law
This Agreement shall be construed in accordance with and
governed by the laws of the State of Delaware, without regard to the principles
of conflicts of law.
Section 15.10. Invalidity of Provisions
If any provision of this Agreement is or becomes invalid,
illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein shall not be
affected thereby.
Section 15.11. Entire Agreement
This Agreement (together with the agreements listed on Exhibit
H hereto as to rights and obligations in respect of the Units held by the
Limited Partners who are parties thereto, or their permitted transferees)
contains the entire understanding and agreement among the
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Partners with respect to the subject matter hereof and supersedes any other
prior written or oral understandings or agreements among them with respect
thereto.
Section 15.12. No Rights as Stockholders
Nothing contained in this Agreement shall be construed as
conferring upon the holders of Partnership Units any rights whatsoever as
stockholders of the General Partner, including without limitation any right to
receive dividends or other distributions made to stockholders of the General
Partner or to vote or to consent or to receive notice as stockholders in respect
of any meeting of stockholders for the election of directors of the General
Partner or any other matter.
ARTICLE 16.
SERIES C PREFERRED UNITS
Section 16.1. Designation and Number
A series of Partnership Units in the Partnership designated as
the 8 3/4% Series C Cumulative Redeemable Preferred Units (the "Series C
Preferred Units") is hereby established. The number of Series C Preferred Units
shall be 2,200,000.
Section 16.2. Ranking
The Series C Preferred Units shall, with respect to
distribution rights and rights upon voluntary or involuntary liquidation,
winding up or dissolution of the Partnership, rank (i) senior to the Common
Units and to all Partnership Units the terms of which provide that such
Partnership Units shall rank junior to the Series C Preferred Units; (ii) on a
parity with all other Parity Preferred Units; and (iii) junior to all
Partnership Units which rank senior to the Series C Preferred Units.
Section 16.3. Distributions
A. Payment of Distributions. Subject to the rights of
holders of Parity Preferred Units as to the payment of distributions, pursuant
to Section 5.1 hereof, holders of Series C Preferred Units will be entitled to
receive, when, as and if declared by the Partnership acting through the General
Partner, out of Available Cash, cumulative preferential cash distributions in an
amount equal to the Series C Priority Return. Such distributions will be payable
(A) quarterly (such quarterly periods for purposes of payment and accrual will
be the quarterly periods ending on the dates specified in this sentence and not
calendar year quarters) in arrears, on the 15th day of January, April, July and
October of each year and (B) in the event of (i) an exchange of Series C
Preferred Units into Series C Preferred Shares, or (ii) a redemption of Series C
Preferred Units, on the exchange date or redemption date, as applicable (each a
"Series C Preferred Unit Distribution Payment Date"), commencing on the first of
such payment dates to occur following their original date of issuance. If any
date on which distributions are to be made on the Series C Preferred Units is
not a Business Day, then payment of the distribution to be made on such date
will be made on the next succeeding day that is a Business Day (and without any
interest or other payment in respect of any such delay) except that, if such
Business Day is in
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the next succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on such date. Distributions on the Series C Preferred Units will be made to the
holders of record of the Series C Preferred Units on the relevant record dates,
which will be fifteen (15) days prior to the relevant Preferred Unit
Distribution Payment Date (the "Series C Preferred Unit Partnership Record
Date").
B. Distributions Cumulative. Notwithstanding the
foregoing, distributions on the Series C Preferred Units will accrue whether or
not the terms and provisions of any agreement of the Partnership at any time
prohibit the current payment of distributions, whether or not the Partnership
has earnings, whether or not there are funds legally available for the payment
of such of such distributions and whether or not such distributions are
authorized. Accrued but unpaid distributions on the Series C Preferred Units
will accumulate as of the Preferred Unit Distribution Payment Date on which they
first become payable.
C. Priority as to Distributions. (i) So long as any
Series C Preferred Units are outstanding, no distribution of cash or other
property shall be authorized, declared, paid or set apart for payment on or with
respect to any class or series of Partnership Interest represented by Junior
Units, nor shall any Junior Units or Parity Preferred Units be redeemed,
purchased or otherwise acquired for any consideration (or any monies be paid to
or made available for a sinking fund for the redemption of any such Junior Units
or Parity Preferred Units) by the Partnership (except by conversion into or
exchange for other Junior Units or Parity Preferred Units, as the case may be)
unless, in each case, full cumulative distributions have been or
contemporaneously are authorized and paid or authorized and a sum sufficient for
the payment thereof set apart for such payment on the Series C Preferred Units
and all classes and series of outstanding Parity Preferred Units for all
distribution periods. The foregoing sentence will not prohibit (a) distributions
payable solely in Junior Units, (b) the exchange of Junior Units or Parity
Preferred Units into Partnership Interests of the Partnership ranking junior to
the Series C Preferred Units as to distributions and upon voluntary and
involuntary liquidation, dissolution or winding up of the Partnership, or (c)
distributions necessary to enable the Operating Partnership to redeem
partnership interests corresponding to Series C Preferred Shares, Parity
Preferred Stock with respect to distributions or Junior Stock to be purchased by
AMB pursuant to the REIT Charter to preserve AMB's status as a REIT, provided
that such redemption shall be upon the same terms as the corresponding stock
purchase pursuant to the REIT Charter.
(ii) So long as distributions have not been paid in full
(or a sum sufficient for such full payment is not so set apart) upon the Series
C Preferred Units and any other Parity Preferred Units, all distributions
authorized and declared on the Series C Preferred Units and all classes or
series of outstanding Parity Preferred Units shall be authorized and declared
pro rata so that the amount of distributions authorized and declared per Series
C Preferred Unit and such other classes or series of Parity Preferred Units
shall in all cases bear to each other the same ratio that accrued distributions
per Series C Preferred Unit and such other classes or series of Parity Preferred
Units (which shall not include any accumulation in respect of unpaid
distributions for prior distribution periods if such class or series of Parity
Preferred Units do not have cumulative distribution rights) bear to each other.
No interest, or sum of money in lieu of interest, shall be payable in respect of
any distributions or payments on Series C Preferred Units which may be in
arrears.
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(iii) Notwithstanding anything to the contrary set forth
herein, distributions on Partnership Interests held by either (a) the General
Partner or (b) any other holder of Partnership Interest in the Partnership, in
each case ranking junior to or on parity with the Series C Preferred Units may
be made, without preserving the priority of distributions described in Sections
16.3.C(i) and (ii), but only to the extent such distributions are required to
preserve the REIT status of AMB, in its capacity as sole general partner of the
Operating Partnership and as sole stockholder of the General Partner, and in the
case of any holder other than the General Partner only to the extent required by
the Partnership Agreement; provided, that the Partnership shall not be
disproportionately burdened by this provision relative to the cash flow
generated by other assets owned directly or indirectly by AMB.
D. No Further Rights. Holders of Series C Preferred
Units shall not be entitled to any distributions, whether payable in cash, other
property or otherwise, in excess of the full cumulative distributions described
herein.
Section 16.4. Liquidation Proceeds
A. Distributions. Upon voluntary or involuntary
liquidation, dissolution or winding-up of the Partnership, distributions on the
Series C Preferred Units shall be made in accordance with Article 13 of this
Agreement.
B. Notice. Written notice of any such voluntary or
involuntary liquidation, dissolution or winding-up of the Partnership, stating
the payment date or dates when, and the place or places where, the amounts
distributable in such circumstances shall be payable, shall be given by the
General Partner pursuant to Section 13.6 hereof.
C. No Further Rights. After payment of the full amount
of the liquidating distributions to which they are entitled, Holders of Series C
Preferred Units will have no right or claim to any of the remaining assets of
the Partnership.
D. Consolidation, Merger or Certain Other Transactions.
None of a consolidation or merger of the Partnership with or into another
entity, a merger of another entity with or into the Partnership, or a sale,
lease, transfer or conveyance of all or substantially all of the Partnership's
property or business shall be considered a liquidation, dissolution or winding
up of the Partnership.
Section 16.5. Redemption
A. Redemption. The Series C Preferred Units may not be
redeemed prior to November 24, 2003. On or after such date, the Partnership
shall have the right to redeem the Series C Preferred Units, in whole or in
part, at any time or from time to time, upon not less than 30 nor more than 60
days' written notice, at a redemption price, payable in cash (a "Redemption"),
equal to the Capital Account balance of the holder of Series C Preferred Units
(the "Redemption Price"); provided, however, that no redemption pursuant to this
Section 16.5 will be permitted if the Redemption Price does not equal or exceed
the original Capital Contribution of such holder plus the cumulative Series C
Priority Return to the redemption date to the extent not previously distributed.
If fewer than all of the outstanding Series C Preferred
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Units are to be redeemed, the Series C Preferred Units to be redeemed shall be
selected pro rata (as nearly as practicable without creating fractional units).
B. Limitation on Redemption. (i) The Redemption Price of
the Series C Preferred Units (other than the portion thereof consisting of
accumulated but unpaid distributions) is payable solely out of the sale proceeds
of capital stock of AMB which will be contributed by AMB to the Operating
Partnership and the General Partner, and which in turn will be contributed by
the Operating Partnership and the General Partner to the Partnership as an
additional capital contribution, or out of the sale of limited partner interests
in the Partnership or the Operating Partnership and from no other source. For
purposes of the preceding sentence, "capital stock" means any equity securities
(including Common Stock and Preferred Stock (as such terms are defined in the
REIT Charter)), depository shares, interests, participation or other ownership
interests (however designated) and any rights (other than debt securities
convertible into or exchangeable for equity securities) or options to purchase
any of the foregoing.
(ii) The Partnership may not redeem fewer than all of the
outstanding Series C Preferred Units unless all accumulated and unpaid
distributions have been paid on all Series C Preferred Units for all quarterly
distribution periods terminating on or prior to the date of redemption.
C. Procedures for Redemption. (i) Notice of redemption
will be (i) faxed, and (ii) mailed by the Partnership, by certified mail,
postage prepaid, not less than 30 nor more than 60 days prior to the redemption
date, addressed to the respective holders of record of the Series C Preferred
Units at their respective addresses as they appear on the records of the
Partnership. No failure to give or defect in such notice shall affect the
validity of the proceedings for the redemption of any Series C Preferred Units
except as to the holder to whom such notice was defective or not given. In
addition to any information required by law, each such notice shall state: (a)
the redemption date, (b) the Redemption Price, (c) the aggregate number of
Series C Preferred Units to be redeemed and if fewer than all of the outstanding
Series C Preferred Units are to be redeemed, the number of Series C Preferred
Units to be redeemed held by such holder, which number shall equal such holder's
pro rata share (based on the percentage of the aggregate number of outstanding
Series C Preferred Units that the total number of Series C Preferred Units held
by such holder represents) of the aggregate number of Series C Preferred Units
to be redeemed, (d) the place or places where such Series C Preferred Units are
to be surrendered for payment of the Redemption Price, (e) that distributions on
the Series C Preferred Units to be redeemed will cease to accumulate on such
redemption date and (f) that payment of the Redemption Price will be made upon
presentation and surrender of such Series C Preferred Units.
(ii) If the Partnership gives a notice of redemption in
respect of Series C Preferred Units (which notice will be irrevocable) then, by
12:00 noon, New York City time, on the redemption date, the Partnership will
deposit irrevocably in trust for the benefit of the Series C Preferred Units
being redeemed funds sufficient to pay the applicable Redemption Price and will
give irrevocable instructions and authority to pay such Redemption Price to the
holders of the Series C Preferred Units upon surrender of the Series C Preferred
Units by such holders at the place designated in the notice of redemption. On
and after the date of redemption, distributions
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will cease to accumulate on the Series C Preferred Units or portions thereof
called for redemption, unless the Partnership defaults in the payment thereof.
If any date fixed for redemption of Series C Preferred Units is not a Business
Day, then payment of the Redemption Price payable on such date will be made on
the next succeeding day that is a Business Day (and without any interest or
other payment in respect of any such delay) except that, if such Business Day
falls in the next calendar year, such payment will be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on such date fixed for redemption. If payment of the Redemption Price is
improperly withheld or refused and not paid by the Partnership, distributions on
such Series C Preferred Units will continue to accumulate from the original
redemption date to the date of payment, in which case the actual payment date
will be considered the date fixed for redemption for purposes of calculating the
applicable Redemption Price.
Section 16.6. Voting Rights
A. General. Holders of the Series C Preferred Units will
not have any voting rights or right to consent to any matter requiring the
consent or approval of the Limited Partners, except as set forth below and in
Section 7.3.E.
B. Certain Voting Rights. So long as any Series C
Preferred Units remains outstanding, the Partnership shall not, without the
affirmative vote of the holders of at least two-thirds of the Series C Preferred
Units outstanding at the time (i) authorize or create, or increase the
authorized or issued amount of, any class or series of Partnership Interests
ranking prior to the Series C Preferred Units with respect to payment of
distributions or rights upon liquidation, dissolution or winding-up or
reclassify any Partnership Interests of the Partnership into any such
Partnership Interest, or create, authorize or issue any obligations or security
convertible into or evidencing the right to purchase any such Partnership
Interests, (ii) authorize or create, or increase the authorized or issued amount
of any Parity Preferred Units or reclassify any Partnership Interest of the
Partnership into any such Partnership Interest or create, authorize or issue any
obligations or security convertible into or evidencing the right to purchase any
such Partnership Interests but only to the extent such Parity Preferred Units
are issued to an affiliate of the Partnership, other than AMB or the Operating
Partnership to the extent the issuance of such interests was to allow AMB or the
Operating Partnership to issue corresponding preferred stock or preferred
interests to persons who are not affiliates of the Partnership (other than AMB
to the extent AMB issues corresponding preferred stock to persons who are not
affiliates of the Partnership or the Operating Partnership) or (iii) either
consolidate, merge into or with, or convey, transfer or lease its assets
substantially as an entirety to, any corporation or other entity or amend, alter
or repeal the provisions of the Partnership Agreement (including, without
limitation, this Article 16 and Section 11.2), whether by merger, consolidation
or otherwise, in each case in a manner that would materially and adversely
affect the powers, special rights, preferences, privileges or voting power of
the Series C Preferred Units or the holders thereof; provided, however, that
with respect to the occurrence of any event set forth in (iii) above, so long as
(a) the Partnership is the surviving entity and the Series C Preferred Units
remain outstanding with the terms thereof unchanged, or (b) the resulting,
surviving or transferee entity is a partnership, limited liability company or
other pass-through entity organized under the laws of any state and substitutes
the Series C Preferred Units for other interests in such entity having
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substantially the same terms and rights as the Series C Preferred Units,
including with respect to distributions, voting rights and rights upon
liquidation, dissolution or winding-up, then the occurrence of any such event
shall not be deemed to materially and adversely affect such rights, privileges
or voting powers of the holders of the Series C Preferred Units; and provided
further, that any increase in the amount of Partnership Interests or the
creation or issuance of any other class or series of Partnership Interests
represented by Junior Units or Parity Preferred Units that are not issued to an
affiliate of the Partnership, other than the General Partner or the Operating
Partnership to the extent the issuance of such interests was to allow the
General Partner or the Operating Partnership to issue corresponding preferred
stock to persons who are not affiliates of the Partnership (other than AMB to
the extent AMB issues corresponding preferred stock or preferred interests to
persons who are not affiliates of the Partnership or the Operating Partnership),
shall not be deemed to materially and adversely affect such rights, preferences,
privileges or voting powers.
C. So long as any Series C Preferred Units remain
outstanding, the Operating Partnership shall not, without the affirmative vote
of the holders of at least two-thirds of the Series C Preferred Units
outstanding at the time, take any action which would result in the termination
of the right of the holders of such units to effect an exchange pursuant to
Section 16.8; provided however, no such vote shall be required so long as the
Series C Preferred Units (or any interests substituted therefore pursuant to
Section 16.6.B) remain outstanding and are exchangeable for Series C Preferred
Shares or stock in another entity having substantially the same terms and rights
as the Series C Preferred Shares.
Section 16.7. Transfer Restrictions
The Series C Preferred Units shall be subject to the
provisions of Article 11 hereof. No transfer of Series C Preferred Units, or
other action by the holder or holders of such Units, is permitted, without the
consent of the General Partner which consent may be given or withheld in its
sole and absolute discretion, if such transfer or other action would result in
more than four partners holding all outstanding Series C Preferred Units within
the meaning of Treasury Regulation Section 1.7704-1(h)(3)(i); provided, however,
that the General Partner's consent may not be unreasonably withheld if (a) such
transfer or other action would not result in more than ten partners holding all
outstanding Series C Preferred Units within the meaning of Treasury Regulation
Section 1.7704-1(h)(3)(i) and (b) the General Partner is relying on a provision
other than Treasury Regulation Section 1.7704-1(h) to avoid classification of
Operating Partnership as a "publicly traded partnership" within the meaning of
Code Section 7704 (a "PTP"). In addition, no transfer may be made to any person
if such transfer would cause the exchange of the Series C Preferred Units for
Series C Preferred Shares, as provided herein, to be required to be registered
under the Securities Act of 1933, as amended, or any state securities laws.
Section 16.8. Exchange Rights
A. Right to Exchange.
(i) Series C Preferred Units will be exchangeable in
whole but not in part unless expressly otherwise provided herein at anytime on
or after November 24, 2008, at the option of
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51% of the holders of all outstanding Series C Preferred Units, for authorized
but previously unissued Series C Preferred Shares at an exchange rate of one
Series C Preferred Share from AMB for one Series C Preferred Unit, subject to
adjustment as described below (the "Exchange Price"), provided that the Series C
Preferred Units will become exchangeable at any time, in whole but not in part
unless expressly otherwise provided herein, at the option of 51% of the holders
of all outstanding Series C Preferred Units for Series C Preferred Shares if at
any time full distributions shall not have been timely made on any Series C
Preferred Unit with respect to six (6) prior quarterly distribution periods,
whether or not consecutive, provided, however, that a distribution in respect of
Series C Preferred Units shall be considered timely made if made within two (2)
Business Days after the applicable Preferred Unit Distribution Payment Date if
at the time of such late payment there shall not be any prior quarterly
distribution periods in respect of which full distributions were not timely made
or (z) upon receipt by a holder or holders of Series C Preferred Units of (A)
notice from the General Partner that the General Partner or a Subsidiary of the
General Partner has taken the position that the Partnership is, or upon the
consummation of an identified event in the immediate future will be, a PTP and
(B) an opinion rendered by independent counsel familiar with such matters
addressed to a holder or holders of Series C Preferred Units, that the
Partnership is or likely is, or upon the occurrence of a defined event in the
immediate future will be or likely will be, a PTP. In addition, the Series C
Preferred Units may be exchanged for Series C Preferred Shares, in whole but not
in part unless expressly otherwise provided herein, at the option of 51% of the
holders of all outstanding Series C Preferred Units after November 24, 2001 and
prior to November 24, 2008 if such holders of a Series C Preferred Units shall
deliver to the General Partner either (i) a private letter ruling addressed to
such holder of Series C Preferred Units or (ii) an opinion of independent
counsel reasonably acceptable to the General Partner based on the enactment of
temporary or final Treasury Regulations or the publication of a Revenue Ruling,
in either case to the effect that an exchange of the Series C Preferred Units at
such earlier time would not cause the Series C Preferred Units to be considered
"stock and securities" within the meaning of section 351(e) of the Code for
purposes of determining whether the holder of such Series C Preferred Units is
an "investment company" under section 721(b) of the Code if an exchange is
permitted at such earlier date. Furthermore, the Series C Preferred Units, if
Contributors holding 51% of all outstanding Series C Preferred Units determine,
may be exchanged in whole but not in part (regardless of whether held by
Contributors) for Series C Preferred Shares (but only if the exchange in whole
may be accomplished consistently with the ownership limitations set forth under
the Series C Articles Supplementary (as defined herein), taking into account
exceptions thereto) if at any time, excluding the effect of the "Loan" (as
defined below) for purposes of the 5% test of Section 856(c)(4)(B) of the Code,
(i) the Partnership reasonably determines that the assets and income of the
Partnership for a taxable year after 1998 would not satisfy the income and
assets tests of Section 856 of the Code for such taxable year if the Partnership
were a real estate investment trust within the meaning of the Code or (ii) any
holder of Series C Preferred Units shall deliver to the Partnership and the
Company an opinion of independent counsel reasonably acceptable to the Company
to the effect that, based on the assets and income of the Partnership for a
taxable year after 1998, the Partnership would not satisfy the income and assets
tests of Section 856 of the Code for such taxable year if the Partnership were a
real estate investment trust within the meaning of the Code and that such
failure would create a meaningful
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risk that a holder of the Series C Preferred Units would fail to maintain
qualification as a real estate investment trust.
(ii) Notwithstanding anything to the contrary set forth in
Section 16.8.A(i), if an Exchange Notice (as defined herein) has been delivered
to AMB and the General Partner, then the General Partner may, at its option,
within ten (10) Business Days after receipt of the Exchange Notice, elect to
cause the Partnership to redeem all or a portion of the outstanding Series C
Preferred Units for cash in an amount equal to the original Capital Contribution
per Series C Preferred Unit and all accrued and unpaid distributions thereon to
the date of redemption. If the General Partner elects to redeem fewer than all
of the outstanding Series C Preferred Units, the number of Series C Preferred
Units held by each holder to be redeemed shall equal such holder's pro rata
share (based on the percentage of the aggregate number of outstanding Series C
Preferred Units that the total number of Series C Preferred Units held by such
holder represents) of the aggregate number of Series C Preferred Units being
redeemed.
(iii) In the event an exchange of all Series C Preferred
Units pursuant to Section 16.8.A would violate the provisions on ownership
limitation of AMB set forth in Section 7 of Article Third of the Articles
Supplementary to the REIT Charter with respect to Series C Preferred Shares (the
"Series C Articles Supplementary"), each holder of Series C Preferred Units
shall be entitled to exchange, pursuant to the provisions of Section 16.8.B, a
number of Series C Preferred Units which would comply with the provisions on the
ownership limitation of AMB set forth in such Section 7 of Article Third of the
Series C Articles Supplementary, with respect to such holder, and any Series C
Preferred Units not so exchanged (the "Excess Units") shall be redeemed by the
Partnership for cash in an amount equal to the original Capital Contribution per
Excess Unit, plus any accrued and unpaid distributions thereon to the date of
redemption subject to any restriction thereon contained in any debt instrument
or agreement of the Partnership. In the event an exchange would result in Excess
Units, as a condition to such exchange, each holder of such units agrees to
provide representations and covenants reasonably requested by AMB relating to
(i) the widely held nature of the interests in such holder, sufficient to assure
AMB that the Holder's ownership of stock of AMB (without regard to the limits
described above) will not cause any individual to own in excess of 9.0% of the
stock of AMB; and (ii) to the extent such Holder can so represent and covenant
without obtaining information from its owners (other than one or more direct or
indirect parent corporations, limited liability companies or partnerships and
not the holders of any interests in any such parent), the Holder's ownership of
tenants of the Partnership and its affiliates. For purposes of determining the
number of Excess Units under this Section 16.8.A(iii), the "Ownership Limit" set
forth in the Series C Articles Supplementary shall be deemed to be 9.0%. To the
extent the Partnership would not be able to pay the cash set forth above in
exchange for the Excess Units, and to the extent consistent with the REIT
Charter, AMB agrees that it will grant to the holders of the Series C Preferred
Units exceptions to the Ownership Limit set forth in the Series C Articles
Supplementary sufficient to allow such Holders to exchange all of their Series C
Preferred Units for Series C Preferred Shares, provided such holders furnish to
AMB representations acceptable to AMB in its sole and absolute discretion which
assure AMB that such exceptions will not jeopardize AMB's tax status as a REIT
for purposes of federal and applicable state law. Notwithstanding any provision
of this Agreement to the contrary, no Series C Limited Partner shall be entitled
to effect an exchange of Series C Preferred Units for Series C Preferred Shares
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to the extent that ownership or right to acquire such shares would cause the
Partner or any other Person or, in the opinion of counsel selected by AMB, may
cause the Partner or any other Person, to violate the restrictions on ownership
and transfer of Series C Preferred Shares set forth in the REIT Charter. To the
extent any such attempted exchange for Series C Preferred Shares would be in
violation of the previous sentence, it shall be void ab initio and such Series C
Limited Partner shall not acquire any rights or economic interest in the Series
C Preferred Shares otherwise issuable upon such exchange.
(iv) The redemption of Series C Preferred Units described
in Section 16.8.A(ii) and (iii) shall be subject to the provisions of Section
16.5.B(i) and Section 16.5.C(ii); provided, however, that the term "Redemption
Price" in such Sections 16.5.B(i) and 16.5.C(ii) shall be read to mean the
original Capital Contribution per Series C Preferred Unit being redeemed as set
forth on Exhibit A plus all accrued and unpaid distributions to the redemption
date.
B. Procedure for Exchange and/or Redemption of Series C
Preferred Units.
(i) Any exchange shall be exercised pursuant to a notice
of exchange (the "Exchange Notice") delivered to AMB and the General Partner by
the Partners representing at least 51% of the outstanding Series C Preferred
Units (or by Contributors in the case of an exchange pursuant to the last
sentence of Section 16.8.A.(i) hereof) by (a) fax and (b) by certified mail
postage prepaid. AMB may effect any exchange of Series C Preferred Units, or the
General Partner may exercise its option to cause the Partnership to redeem any
portion of the Series C Preferred Units for cash pursuant to Section 16.8.A(ii)
or redeem Excess Units pursuant to Section 16.8.A(iii), by delivering to each
holder of record of Series C Preferred Units, within ten (10) Business Days
following receipt of the Exchange Notice, (a) if the General Partner elects to
cause the Partnership to acquire any of the Series C Preferred Units then
outstanding, (1) certificates representing the Series C Preferred Shares being
issued in exchange for the Series C Preferred Units of such holder being
exchanged and (2) a written notice (a "Redemption Notice") stating (A) the
redemption date, which may be the date of such Redemption Notice or any other
date which is not later than sixty (60) days following the receipt of the
Exchange Notice, (B) the redemption price, (C) the place or places where the
Series C Preferred Units are to be surrendered and (D) that distributions on the
Series C Preferred Units will cease to accrue on such redemption date, or (b) if
the General Partner elects to cause the Partnership to redeem all of the Series
C Preferred Units then outstanding in exchange for cash, a Redemption Notice.
Series C Preferred Units shall be deemed canceled (and any corresponding
Partnership Interest represented thereby deemed terminated) simultaneously with
the delivery of shares of Series C Preferred Shares (with respect to Series C
Preferred Units exchanged) or simultaneously with the redemption date (with
respect to Series C Preferred Units redeemed). Holders of Series C Preferred
Units shall deliver any canceled certificates representing Series C Preferred
Units which have been exchanged or redeemed to the office of General Partner
(which currently is located at 505 Montgomery Street, San Francisco, California
94111) within ten (10) Business Days of the exchange or redemption with respect
thereto. Notwithstanding anything to the contrary contained herein, any and all
Series C Preferred Units to be exchanged for Series C Preferred Stock pursuant
to this Section 16.8 shall be so exchanged in a single transaction at one time.
As a condition to exchange, AMB may require the holders of Series C Preferred
Units to make such representations as may be reasonably necessary for the
General Partner to establish
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that the issuance of Series C Preferred Shares pursuant to the exchange shall
not be required to be registered under the Securities Act or any state
securities laws. Any Series C Preferred Shares issued pursuant to this Section
16.8 shall be delivered as shares which are duly authorized, validly issued,
fully paid and nonassessable, free of any pledge, lien, encumbrance or
restriction other than those provided in the REIT Charter, the Bylaws of AMB,
the Securities Act and relevant state securities or blue sky laws.
The certificates representing the Series C Preferred Shares
issued upon exchange of the Series C Preferred Units shall contain the following
legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE
TRANSFERRED, SOLD, ASSIGNED, PLEDGED, HYPOTHECATED OR
OTHERWISE DISPOSED OF EXCEPT (A) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), AND STATE SECURITIES LAWS OR (B) IF THE
CORPORATION HAS BEEN FURNISHED WITH A SATISFACTORY OPINION OF
COUNSEL FOR THE HOLDER OF THE SHARES REPRESENTED HEREBY, OR
OTHER EVIDENCE SATISFACTORY TO THE CORPORATION, THAT SUCH
TRANSFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION OR OTHER
DISPOSITION IS EXEMPT FROM THE PROVISIONS OF SECTION 5 OF THE
ACT AND STATE SECURITIES LAWS AND THE RULES AND REGULATIONS
THEREUNDER.
(ii) In the event of an exchange of Series C Preferred
Units for Series C Preferred Shares, an amount equal to the accrued and unpaid
distributions to the date of exchange on any Series C Preferred Units tendered
for exchange shall (i) accrue on the Series C Preferred Shares into which such
Series C Preferred Units are exchanged, and (ii) continue to accrue on such
Series C Preferred Units, which shall remain outstanding following such
exchange, with the General Partner as the holder of such REIT Series C Preferred
Units. Notwithstanding anything to the contrary set forth herein, in no event
shall a Holder of a Series C Preferred Unit that was validly exchanged for
Series C Preferred Shares pursuant to this section (other than the General
Partner holding such Series C Preferred Unit following any such exchange),
receive a distribution out of Available Cash of the Partnership, if such Holder,
after exchange, is entitled to receive a distribution with respect to the Series
C Preferred Shares for which such Series C Preferred Unit was exchanged or
redeemed. Further for purposes of the foregoing, in the event of an exchange of
Series C Preferred Units for Series C Preferred Shares, if the accrued and
unpaid distributions per Series C Preferred Unit is not the same for each Series
C Preferred Unit, the accrued and unpaid distributions per Series C Preferred
Unit for each such Series C Preferred Unit shall be equal to the greatest amount
of such accrued and unpaid distributions per Series C Preferred Unit on any such
unit.
(iii) Fractional Series C Preferred Shares are not to be
issued upon exchange but, in lieu thereof, the General Partner will pay a cash
adjustment based upon the fair market
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value of the Series C Preferred Shares on the day prior to the exchange date as
determined in good faith by the Board of Directors.
C. Adjustment of Exchange Price. In case AMB shall be a
party to any transaction (including, without limitation, a merger,
consolidation, statutory share exchange, tender offer for all or substantially
all of AMB's capital stock or sale of all or substantially all of AMB's assets),
in each case as a result of which the Series C Preferred Shares will be
converted into the right to receive shares of capital stock, other securities or
other property (including cash or any combination thereof), each Series C
Preferred Unit will thereafter be exchangeable into the kind and amount of
shares of capital stock and other securities and property receivable (including
cash or any combination thereof) upon the consummation of such transaction by a
holder of that number of Series C Preferred Shares or fraction thereof into
which one Series C Preferred Unit was exchangeable immediately prior to such
transaction. AMB may not become a party to any such transaction unless the terms
thereof are consistent with the foregoing. AMB and the Operating Partnership
further agree that, notwithstanding any transaction to which either may be a
party (including, without limitation, any merger, consolidation, statutory share
exchange, tender offer for all or substantially all of such entity's capital
stock or partnership interests or sale of all or substantially all of such
entity's assets), immediately following any such transaction, the issuer or
issuers of any shares of capital stock and other securities into which the
Series C Preferred Units shall be exchangeable pursuant to this Section 16.8
shall be the same issuer or issuers of shares of capital stock and other
securities into which the 8 5/8% Series B Cumulative Redeemable Partnership
Units of the Operating Partnership (the "Series B Preferred Units") are then
exchangeable (or, if the Series B Preferred Units have previously been redeemed
in full, would have been then exchangeable if then still outstanding).
Section 16.9. No Conversion Rights
The Series C Preferred Units shall not be convertible into any
other class or series of interest in the Partnership.
Section 16.10. No Sinking Fund
No sinking fund shall be established for the retirement or
redemption of Series C Preferred Units.
(Signature Pages Follow)
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
GENERAL PARTNER:
AMB PROPERTY HOLDING CORPORATION,
a Maryland corporation
By: /s/ John T. Roberts
--------------------------------
John T. Roberts
Vice President
COMMON LIMITED PARTNER:
AMB PROPERTY, L.P., a Delaware
limited partnership
By: AMB Property Corporation,
its general partner
By: /s/ John T. Roberts
---------------------------
John T. Roberts
Vice President and Director
of Capital Markets
GENERAL PARTNER OF COMMON LIMITED
PARTNER:
AMB PROPERTY CORPORATION,
a Maryland corporation
By: /s/ John T. Roberts
--------------------------------
John T. Roberts
Vice President and Director
of Capital Markets
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SERIES C LIMITED PARTNERS:
BELCREST REALTY CORPORATION,
a Delaware corporation
By: /s/ Thomas E. Faust, Jr.
--------------------------------
Thomas E. Faust, Jr.
Executive Vice President
BELAIR REAL ESTATE CORPORATION,
a Delaware corproation
By: /s/ Thomas E. Faust, Jr.
--------------------------------
Thomas E. Faust, Jr.
Executive Vice President
2
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EXHIBIT A
PARTNERS, CONTRIBUTIONS, AND PARTNERSHIP INTERESTS
I. COMMON UNITS
Agreed Value
Contribution Cash of Contributed Total Partnership Percentage
Name of Partner Date Contributions Property Contributions Units Interest
- ----------------------------------- ------------ ------------- -------------- ------------- ----------- -----------
GENERAL PARTNER:
AMB Property Holding Corporation 11/26/97 -- 3,626,023 3,626,023 172,668 .99725%
LIMITED PARTNERS:
AMB Property, L.P. 11/26/97 -- 358,976,301 358,976,301 17,094,110 98.72782%
06/30/98 -- 1,161,489 1,161,489 47,602 .27493%
============= ============== ============ ============= ===========
TOTAL COMMON UNITS -- 363,763,813 363,763,813 17,314,380 100.00000%
============= ============== ============ ============= ===========
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EXHIBIT A
PARTNERS, CONTRIBUTIONS, AND PARTNERSHIP INTERESTS
II. SERIES C PREFERRED UNITS
Agreed Value Series C
Contribution Cash of Contributed Total Partnership Percentage
Name of Partner Date Contributions Property Contributions Units Interest
- -------------------------------- ------------ ------------- --------------- ------------- ----------- ------------
LIMITED PARTNER:
Belcrest Realty Corporation 11/24/98 $24,000,000 -- $24,000,000 480,000 21.8182%
Belair Real Estate Corporation 11/24/98 $86,000,000 -- $86,000,000 1,720,000 78.1818%
============ =============== ============= ========== ===========
TOTAL SERIES C PREFERRED $110,000,000 -- $110,000,000 2,200,000 100.0000%
UNITS
============ =============== ============= ========== ===========
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EXHIBIT B
NOTICE OF REDEMPTION
The undersigned hereby [irrevocably] (i) exchanges
____________ Limited Partnership Units in AMB Property II, L.P. in accordance
with the terms of the Limited Partnership Agreement of AMB Property II, L.P.
dated as of _________________, as amended, and the rights of Redemption referred
to therein, (ii) surrenders such Limited Partnership Units and all right, title
and interest therein and (iii) directs that the cash (or, if applicable,
Preferred Stock) deliverable upon Redemption or exchange be delivered to the
address specified below, and if applicable, that such Preferred Stock be
registered or placed in the name(s) and at the address(es) specified below.
Dated: ________________________
Name of Limited Partner:
---------------------------------
(Signature of Limited Partner)
---------------------------------
(Street Address)
---------------------------------
(City) (State) (Zip Code)
Signature Guaranteed by:
---------------------------------
Issue Shares in the name of:
Please insert social security or identifying number:
Address (if different than above):
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EXHIBIT C
CONSTRUCTIVE OWNERSHIP DEFINITION
The term "Constructively Owns" means ownership determined
through the application of the constructive ownership rules of Section 318 of
the Code, as modified by Section 856(d)(5) of the Code. Generally, these rules
provide the following:
a. an individual is considered as owning the Ownership Interest that is
owned, actually or constructively, by or for his spouse, his children, his
grandchildren, and his parents;
b. an Ownership Interest that is owned, actually or constructively, by
or for a partnership, limited liability company or estate is considered as owned
proportionately by its partners, members or beneficiaries;
c. an Ownership Interest that is owned, actually or constructively, by
or for a trust is considered as owned by its beneficiaries in proportion to the
actuarial interest of such beneficiaries (provided, however, that in the case of
a "grantor trust" the Ownership Interest will be considered as owned by the
grantors);
d. if ten percent (10%) or more in value of the stock in a corporation
is owned, actually or constructively, by or for any person, such person shall be
considered as owning the Ownership Interest that is owned, actually or
constructively, by or for such corporation in that proportion which the value of
the stock which such person so owns bears to the value of all the stock in such
corporation;
e. an Ownership Interest that is owned, actually or constructively, by
or for a partner or member which actually or constructively owns a 25% or
greater capital interest or profits interest in a partnership or limited
liability company, or by or for a beneficiary of an estate or trust, shall be
considered as owned by the partnership, limited liability company, estate, or
trust (or, in the case of a grantor trust, the grantors);
f. if ten percent (10%) or more in value of the stock in a corporation
is owned, actually or constructively, by or for any person, such corporation
shall be considered as owning the Ownership Interest that is owned, actually or
constructively, by or for such person;
g. if any person has an option to acquire an Ownership Interest
(including an option to acquire an option or any one of a series of such
options), such Ownership Interest shall be considered as owned by such person;
h. an Ownership Interest that is constructively owned by a person by
reason of the application of the rules described in paragraphs (a) through (g)
above shall, for purposes of applying paragraphs (a) through (g), be considered
as actually owned by such person provided, however, that (i) an Ownership
Interest constructively owned by an individual by reason of paragraph (a) shall
not be considered as owned by him for purposes of again applying paragraph (a)
in order to make another the constructive owner of such Ownership Interest, (ii)
an Ownership Interest constructively owned by a partnership, estate, trust, or
corporation by reason of the application of paragraphs (e) or (f) shall not be
considered as owned by it for purposes of applying paragraphs (b), (c), or (d)
in order to make another the constructive owner of such Ownership Interest,
(iii) if an Ownership Interest may be considered as owned by an individual under
paragraphs (a) or (g), it shall be considered as owned by him under paragraph
(g) and (iv) for purposes of the above described rules, an S corporation shall
be treated as a partnership and any stockholder of the S corporation shall be
treated as a partner of such partnership except that this rule shall not apply
for purposes of determining whether stock in the S corporation is constructively
owned by any person.
i. For purposes of the above summary of the constructive ownership
rules, the term "Ownership Interest" means the ownership of stock with respect
to a corporation and, with respect to any other type of entity, the ownership of
an interest in either its assets or net profits.
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EXHIBIT D-1
FORM OF PARTNERSHIP UNIT CERTIFICATE
CERTIFICATE FOR PARTNERSHIP UNITS OF
AMB PROPERTY II, L.P.
No. _______________ ____________ UNITS
AMB Property Holding Corporation as the General Partner of AMB
Property II, L.P., a Delaware limited partnership (the "Operating Partnership"),
hereby certifies that is a Limited Partner of the Operating Partnership whose
Partnership Interests therein, as set forth in the Agreement of Limited
Partnership of AMB Property II, L.P., dated as of ______________, 199_ (as it
may be amended, modified or supplemented from time to time in accordance with
its terms, (the "Partnership Agreement"), under which the Operating Partnership
is existing and as filed in the office of the Delaware [State Department of
Assessments and Taxation] (copies of which are on file at the Operating
Partnership's principal office at
__________________________________________________, represent units of limited
partnership interest in the Operating Partnership (the "Partnership Units").
THE PARTNERSHIP UNITS REPRESENTED BY THIS CERTIFICATE OR
INSTRUMENT MAY NOT BE TRANSFERRED, SOLD, ASSIGNED, PLEDGED, HYPOTHECATED OR
OTHERWISE DISPOSED OF UNLESS SUCH TRANSFER, SALE, ASSIGNMENT, PLEDGE,
HYPOTHECATION OR OTHER DISPOSITION COMPLIES WITH THE PROVISIONS OF THE
PARTNERSHIP AGREEMENT (A COPY OF WHICH IS ON FILE WITH THE OPERATING
PARTNERSHIP). EXCEPT AS OTHERWISE PROVIDED IN THE PARTNERSHIP AGREEMENT, NO
TRANSFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION OR OTHER DISPOSITION OF THE
PARTNERSHIP UNITS REPRESENTED BY THIS CERTIFICATE MAY BE MADE EXCEPT (A)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"), OR (B) IF THE OPERATING PARTNERSHIP HAS BEEN
FURNISHED WITH A SATISFACTORY OPINION OF COUNSEL FOR THE HOLDER OF THE
PARTNERSHIP UNITS REPRESENTED BY THIS CERTIFICATE THAT SUCH TRANSFER, SALE
ASSIGNMENT, PLEDGE, HYPOTHECATION OR OTHER DISPOSITION IS EXEMPT FROM THE
PROVISIONS OF SECTION 5 OF THE ACT AND THE RULES AND REGULATIONS IN EFFECT
THEREUNDER.
DATED: ____________________, 199_.
AMB PROPERTY HOLDING CORPORATION
General Partner of AMB
Property II, L.P.
ATTEST:
By:_________________________ By:_________________________
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EXHIBIT E
SCHEDULE OF PARTNERS' OWNERSHIP
WITH RESPECT TO TENANTS
None
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EXHIBIT F
SCHEDULE OF REIT SHARES
ACTUALLY OR CONSTRUCTIVELY OWNED BY 25% LIMITED PARTNERS
OTHER THAN THOSE ACQUIRED PURSUANT TO AN EXCHANGE
None
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EXHIBIT G
SCHEDULE OF CERTAIN AGREEMENTS RELATING TO
PROPERTIES WITH RESTRICTIONS ON DISPOSITION
PURSUANT TO SECTION 7.3.F
1. APLP II Contribution Agreement dated as of May 21, 1998, by and between
Hayes Realty Company, an Illinois general partnership and AMB Property
II, L.P., a Delaware limited partnership.
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EXHIBIT H
SCHEDULE OF CERTAIN AGREEMENTS CONTAINING
LIMITATIONS ON GENERAL PARTNERS GENERAL AUTHORITY
1. APLP II Contribution Agreement dated as of May 21, 1998, by and between
Hayes Realty Company, an Illinois general partnership and AMB Property
II, L.P., a Delaware limited partnership.
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EXHIBIT I
RESTRICTIONS ON OWNERSHIP AND TRANSFER TO PRESERVE TAX BENEFIT
(a) Definitions. for the purposes of this Exhibit I, the following
terms shall have the following meanings:
"Charitable Beneficiary" shall mean one or more
beneficiaries of a Trust, as determined pursuant to subsection
(c)(vi), each of which shall be an organization described in
Sections 170(b)(1)(A), 170(c)(2) and 501(c)(3) of the Code.
"Code" shall mean the Internal Revenue Code of 1986,
as amended.
"Constructive Ownership" shall mean ownership of
Partnership Units by a Person who is or would be treated as an
owner of such Partnership Units either actually or
constructively through the application of Section 318 of the
Code, as modified by Section 856(d)(5) of the Code. The terms
"Constructive Owner," "Constructively Owns" and
"Constructively Owned" shall have the correlative meanings.
"Exempted Person" shall mean any Person exempted from
time to time by the General Partner in its sole and absolute
discretion. The Operating Partnership shall be considered an
Exempted Person.
"Market Price" shall mean the market price of the
Partnership Units on the relevant date as determined in good
faith by the General Partner; provided, however, if AMB has
outstanding shares of capital stock which correspond to such
Partnership Units (i.e., the Series C Preferred Shares), the
Market Price of each such Partnership Unit shall be equal to
the Value of a share of such capital stock, subject to
adjustment if the right to exchange such Partnership Units for
such stock is other than one to one.
"Ownership Limit" shall mean 24.9% of the capital or
profits interests of the Partnership.
"Person" shall mean an individual, corporation,
partnership, limited liability company, estate, trust
(including a trust qualified under Section 401(a) or
501(c)(17) of the Code), a portion of a trust permanently set
aside for or to be used exclusively for the purposes described
in Section 642(c) of the Code, association, private foundation
within the meaning of Section 509(a) of the Code, joint stock
company or other entity.
"Purported Beneficial Transferee" shall mean, with
respect to any purported Transfer (or other event) which
results in a transfer to a Trust, as provided in subsection
(b)(ii), the Purported Record Transferee, unless the Purported
Record Transferee would have acquired or owned Partnership
Units for another Person who
I-1
87
is the beneficial transferee or owner of such Partnership
Units, in which case the Purported Beneficial Transferee shall
be such Person.
"Purported Record Transferee" shall mean, with
respect to any purported Transfer (or other event) which
results in a transfer to a Trust, as provided in subsection
(b)(ii), the holder of the Partnership Units as set forth or
to be set forth in Exhibit A to the Partnership Agreement, and
any Assignee of such Partnership Units, if such Transfer or
ownership had been valid under subsection (b)(i).
"Restriction Termination Date" shall mean the first
day after the date hereof on which the General Partner
determines, in its sole and absolute discretion, that
compliance with subsection (b)(i) is no longer necessary or
advisable.
"Transfer" shall mean any sale, transfer, gift,
assignment, devise or other disposition of Partnership Units,
(including (i) the granting of any option or entering into any
agreement for the sale, transfer or other disposition of
Partnership Units or (ii) the sale, transfer, assignment or
other disposition of any securities (or rights convertible
into or exchangeable for Partnership Units)), whether
voluntary or involuntary, whether such transfer has occurred
of record or beneficially or Constructively (including but not
limited to transfers of interests in other entities which
results in changes in Constructive Ownership of Partnership
Units), and whether such transfer has occurred by operation of
law or otherwise.
"Trust" shall mean each of the trusts provided for in
subsection (c).
"Trustee" shall mean any Person unaffiliated with the
Partnership, or a Purported Beneficial Transferee, or a
Purported Record Transferee, that is appointed by the
Partnership to serve as trustee of a Trust.
Capitalized terms used and not defined herein shall have the meanings ascribed
to them in the Third Amended and Restated Agreement of Limited Partnership of
AMB Property II, L.P. (the "Partnership Agreement"), as such agreement may be
amended from time to time. All references to "Section" refer to the Partnership
Agreement.
(b) Restriction on Ownership and Transfers.
(i) Prior to the Restriction Termination Date, no Person,
other than an Exempted Person, shall at any time Constructively Own Partnership
Units in excess of the Ownership Limit if the representations contained in
Section 3.4.D are not at such time true and correct.
(ii) If, prior to the Restriction Termination Date, any
Transfer or other event occurs that, if effective, would result in any Person
Constructively Owning Partnership Units in violation of subsection (b)(i), (1)
then that number of Partnership Units that otherwise would cause such Person to
violate subsection (b)(i) (rounded up to the nearest whole Partnership Unit)
shall be automatically transferred (provided such Transfer is not in violation
of the restrictions on transfer
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set forth in the Partnership Agreement, except to the extent the General Partner
waives such restrictions) to a Trust for the benefit of a Charitable
Beneficiary, as described in subsection (c), effective as of the close of
business on the business day prior to the date of such Transfer or other event,
and such Purported Beneficial Transferee shall thereafter have no rights in such
Partnership Units or (2) if, for any reason, the transfer to the Trust described
in clause (1) of this sentence is not automatically effective as provided
therein to prevent any Person from Constructively Owning Partnership Units in
violation of subsection (b)(i), then the Transfer of that number of Partnership
Units that otherwise would cause any Person to violate subsection (b)(i) shall
be void ab initio, and the Purported Beneficial Transferee shall have no rights
in such Partnership Units.
(c) Transfers of Partnership Units in Trust.
(i) Upon any purported Transfer or other event described in
subsection (b)(ii), such Partnership Units shall be deemed to have been
transferred to the Trustee in his capacity as trustee of a Trust for the
exclusive benefit of one or more Charitable Beneficiaries. Such transfer to the
Trustee shall be deemed to be effective as of the close of business on the
business day prior to the purported Transfer or other event that results in a
transfer to the Trust pursuant to subsection (b)(ii). The Trustee shall be
appointed by the Partnership and shall be a Person unaffiliated with the
Partnership, any Purported Beneficial Transferee, or any Purported Record
Transferee. Each Charitable Beneficiary shall be designated by the Partnership
as provided in subsection (c)(vi).
(ii) Partnership Units held by the Trustee shall be issued and
outstanding Partnership Units of the Partnership. The Purported Beneficial
Transferee or Purported Record Transferee shall have no rights in the
Partnership Units held by the Trustee. The Purported Beneficial Transferee or
Purported Record Transferee shall not benefit economically from ownership of any
Partnership Units held in trust by the Trustee, shall have no rights to
distributions or allocations with respect to Partnership Units held in the Trust
and shall not possess any rights to vote or other rights attributable to the
Partnership Units held in the Trust.
(iii) The Trustee shall have all voting rights and rights to
distributions and allocations with respect to Partnership Units held in the
Trust, which rights shall be exercised for the exclusive benefit of the
Charitable Beneficiary. Any distribution paid prior to the discovery by the
Partnership that Partnership Units have been transferred to the Trustee shall be
paid to the Trustee upon demand, and any distribution with respect to such
Partnership Units shall be paid when due to the Trustee. Any distributions so
paid over to the Trustee shall be held in trust for the Charitable Beneficiary.
The Purported Record Transferee and Purported Beneficial
Transferee shall have no voting rights with respect to the Partnership Units
held in the Trust and, subject to Delaware law, effective as of the date the
Partnership Units has been transferred to the Trustee, the Trustee shall have
the authority (at the Trustee's sole discretion) (i) to rescind as void any vote
cast by a Purported Record Transferee with respect to such Partnership Units
prior to the discovery by the Partnership that the Partnership Units has been
transferred to the Trustee and (ii) to recast such vote in accordance with the
desires of the Trustee acting for the benefit of the Charitable Beneficiary;
provided, however, that if the Partnership has already taken irreversible
action, then the Trustee shall not have the authority to rescind and recast such
vote. Notwithstanding any other provision of
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this Exhibit I to the contrary, until the Partnership has received notification
that the Partnership Units have been transferred into a Trust, the Partnership
shall be entitled to rely on its Partnership Unit transfer and other unitholder
records for purposes of preparing Exhibit A to the Partnership Agreement, lists
of unitholders entitled to vote at meetings, and otherwise conducting votes of
Partners.
(iv) Within 20 days of receiving notice from the Partnership
that Partnership Units have been transferred to the Trust, the Trustee of the
Trust shall, in accordance with the terms of (and subject to the limitations
contained in) the Partnership Agreement, sell the Partnership Units held in the
Trust to a Person, designated by the Trustee, whose ownership of the Partnership
Units will not violate the ownership limitations set forth in subsection (b)(i).
Upon such sale, the interest of the Charitable Beneficiary in the Partnership
Units sold shall terminate and the Trustee shall distribute the net proceeds of
the sale to the Purported Record Transferee and to the Charitable Beneficiary as
provided in this subsection (c)(iv). The Purported Record Transferee shall
receive the lesser of (1) the price paid by the Purported Record Transferee for
the Partnership Units in the transaction that resulted in such transfer to the
Trust (or, if the event which resulted in the transfer to the Trust did not
involve a purchase of such Partnership Units at Market Price, the Market Price
of such Partnership Units on the day of the event which resulted in the transfer
of such Partnership Units to the Trust) and (2) the price per Partnership Unit
received by the Trustee (net of any commissions and other expenses of sale) from
the sale or other disposition of the Partnership Units held in the Trust. Any
net sales proceeds in excess of the amount payable to the Purported Record
Transferee shall be immediately paid to the Charitable Beneficiary together with
any distributions thereon. If, prior to the discovery by the Partnership that
Partnership Units have been transferred to the Trustee, such Partnership Units
are sold by a Purported Record Transferee then (i) such Partnership Units shall
be deemed to have been sold on behalf of the Trust and (ii) to the extent that
the Purported Record Transferee received an amount for such Partnership Units
that exceeds the amount that such Purported Record Transferee was entitled to
receive pursuant to this subsection (c)(iv), such excess shall be paid to the
Trustee upon demand. The expenses described in item (2) above shall include any
expenses of administering the Trust, any transfer of Partnership Units thereto
or disposition of Partnership Units thereby, which shall be allocated equitably
among the Partnership Units which are transferred to the Trust.
(v) Partnership Units transferred to the Trustee shall be
deemed to have been offered for sale to the Partnership, or its designee, at a
price per Partnership Unit equal to the lesser of (i) the price paid by the
Purported Record Transferee for the Partnership Units in the transaction that
resulted in such transfer to the Trust (or, if the event which resulted in the
transfer to the Trust did not involve a purchase of such Partnership Units at
Market Price, the Market Price of such Partnership Units on the day of the event
which resulted in the transfer of such Partnership Units to the Trust) and (ii)
the Market Price on the date the Partnership, or its designee, accepts such
offer. The Partnership shall have the right to accept such offer until the
Trustee has sold the Partnership Units held in the Trust pursuant to subsection
(c)(iv). Upon such a sale to the Partnership, the interest of the Charitable
Beneficiary in the Partnership Units sold shall terminate and the Trustee shall
distribute the net proceeds of the sale to the Purported Record Transferee and
any distributions held by the Trustee with respect to such Partnership Units
shall thereupon be paid to the Charitable Beneficiary.
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(vi) By written notice to the Trustee, the Partnership shall
designate one or more nonprofit organizations to be the Charitable Beneficiary
of the interest in the Trust such that the Partnership Units held in the Trust
would not violate the restrictions set forth in subsection (b)(i) in the hands
of such Charitable Beneficiary.
(d) Remedies For Breach. If the General Partner shall at any time
determine in good faith that a Transfer or other event has taken place in
violation of subsection (b) or that a Person intends to acquire, has attempted
to acquire or may acquire beneficial ownership (determined without reference to
any rules of attribution) or Constructive Ownership of any Partnership Units of
the Partnership in violation of subsection (b), the General Partner shall take
such action as it deems advisable to refuse to give effect or to prevent such
Transfer, including, but not limited to, causing the Partnership to redeem
Partnership Units, refusing to give effect to such Transfer on the books of the
Partnership or instituting proceedings to enjoin such Transfer; provided,
however, that any Transfers (or, in the case of events other than a Transfer,
ownership or Constructive Ownership) in violation of subsection (b)(i), shall
automatically result in the transfer to a Trust as described in subsection
(b)(ii).
(e) Notice of Restricted Transfer. Any Person who acquires or attempts
to acquire or own Partnership Units in violation of subsection (b), or any
Person who is a Purported Beneficial Transferee such that an automatic transfer
to a Trust results under subsection (b)(ii), shall immediately give written
notice to the Partnership of such event and shall provide to the Partnership
such other information as the Partnership may request in order to determine the
effect, if any, of such Transfer or attempted Transfer on such Person's
compliance with subsection (b)(i).
(f) Owners Required To Provide Information. Prior to the Restriction
Termination Date each Person who is a beneficial owner or Constructive Owner of
Partnership Units and each Person who is holding Partnership Units for a
beneficial owner or Constructive Owner shall provide to the Partnership such
information that the Partnership may request, in good faith, in order to
determine the Partnership's status as a partnership (as opposed to a
corporation) or AMB's status as a REIT for federal income tax purposes.
(g) Remedies Not Limited. Nothing contained in this Exhibit I shall
limit the authority of the General Partner to take such other action as it deems
necessary or advisable to protect the Partnership and the interests of its
Partners by preservation of the Partnership's status as a partnership (as
opposed to a corporation) or AMB's status as a REIT for federal income tax
purposes.
(h) Ambiguity. In the case of an ambiguity in the application of any of
the provisions of this Exhibit I, including any definition contained in
subsection (a), the General Partner shall have the power to determine the
application of the provisions of this Exhibit I with respect to any situation
based on the facts known to it. In the event that a provision of this Exhibit I
requires an action by the General Partner and Exhibit I fails to provide
specific guidance with respect to such action, the General Partner shall have
the power to determine the action to be taken so long as such action is not
contrary to the provisions of Exhibit I. Absent a decision to the contrary by
the General Partner (which the General Partner may make in its sole and absolute
discretion), if a Person would have (but for the remedies set forth in
subsection (b)) acquired Constructive
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Ownership of Partnership Units in violation of subsection (b)(i), such remedies
(as applicable) shall apply first to the Partnership Units which, but for such
remedies, would have been actually owned by such Person, and second to
Partnership Units which, but for such remedies, would have been Constructively
Owned (but not actually owned) by such Person, pro rata among the Persons who
actually own such Partnership Units based upon the relative number of the
Partnership Units held by each such Person.
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