EXHIBIT 10.101
AMENDED AND RESTATED
LIMITED PARTNERSHIP AGREEMENT
OF
APPLE SUITES REIT LIMITED PARTNERSHIP
This LIMITED PARTNERSHIP AGREEMENT (the "Partnership Agreement") is
made as of September 8, 2000 by and between Apple Suites General, Inc., a
Virginia corporation, the general partner ("General Partner"), and Apple Suites
LP, Inc., a Virginia corporation, the limited partner ("Limited Partner").
INTRODUCTION
A. The General Partner and the Limited Partner (collectively, the
"Partners") have formed a limited partnership (the "Partnership") pursuant to
the provisions of the Virginia Revised Uniform Limited Partnership Act (the
"Act"), effective August 30, 1999. The Partners desire to hereby amend and
restate the Partnership's Limited Partnership Agreement dated as of August 30,
1999.
B. The rights, duties and obligations of the Partners shall be governed
by the Act except as otherwise provided in this Partnership Agreement. The term
"Person," as used herein, means an individual or an entity.
ARTICLE I
ORGANIZATIONAL MATTERS
1.1 NAME. The name of the Partnership is Apple Suites REIT Limited
Partnership. The Partnership may trade or transact business under such other
names as may be selected by the General Partner.
1.2 PURPOSE. The Notwithstanding any provision hereof to the contrary,
the following shall govern: The nature of the Partnership's business, and of the
purposes to be conducted and promoted by the Partnership, are limited solely to
the following activities:
(a) To own, hold, sell, assign, transfer, operate, lease, mortgage,
pledge and otherwise deal with those certain parcels of real property listed on
Exhibit A hereto, together with all improvements located thereon (collectively,
the "Properties");
(b) To exercise all powers that are enumerated in the Act and are
necessary or convenient to the conduct, promotion or attainment of the business
or purposes of the Partnership as set forth herein.
The Partnership's activities shall be limited and conducted as
necessary to ensure that Apple Suites, Inc., a Virginia corporation and
shareholder of each of the Partners ("Apple Suites REIT"), will qualify at all
times as a real estate investment trust ("REIT") under sections 856 through 860
of the Internal Revenue Code of 1986, as amended (the "Code").
1.3 FILINGS.
(a) The Partnership has filed a certificate of limited partnership
with the State Corporation Commission of Virginia pursuant to Section 50-73.11
of the Code of Virginia (the "Certificate").
(b) The Certificate designates 306 East Main Street, Richmond,
Virginia 23219 as the office where records of the Partnership are kept (the
"Principal Office"). The Certificate designates Martin B. Richards, Esquire, as
the registered agent at the following registered office: c/o McGuire, Woods,
Battle & Boothe LLP, One James Center, 901 East Cary Street, Richmond, Virginia
23219
ARTICLE II
MANAGEMENT, PROHIBITED ACTIVITIES AND SEPARATENESS COVENANTS
2.1 THE GENERAL PARTNER. The General Partner shall have the sole and
exclusive right, duty and power to manage the business of the Partnership,
including, without limitation, the right and power to:
(a) acquire, hold, sell, maintain, encumber, improve, develop or
lease the Partnership's property, whether real or personal, and any interest
therein on such terms and conditions as the General Partner deems advisable.
(b) borrow money on behalf of the Partnership, secure any such
borrowings with assets of the Partnership, and repay the same at any time or
from time to time;
(c) establish investment accounts for the Partnership and deposit
and withdraw funds in or from such accounts;
(d) assign, compromise or release any claim of, or debt due to, the
Partnership;
(e) institute and defend actions at law or in equity on behalf of
the Partnership and consent to arbitrate any disputes or controversies of the
Partnership;
(f) engage and retain accountants, lawyers and other professionals
to perform services for the Partnership, and purchase such goods and other
services as may be required to conduct the business of the Partnership; and
(g) enter into such contracts and perform such other acts as may be
necessary to further the business of the Partnership.
2.2 LIMITATIONS ON POWER AND AUTHORITY. Notwithstanding anything to the
contrary in this Partnership Agreement, the General Partner's rights, authority
and power are subject to and limited by certain provisions of the Bylaws of the
Apple Suites REIT (including, without
limitation, Article XIII thereof), and actions described in such Bylaws may only
be undertaken in compliance with such provisions (including, without limitation,
those provisions of Article XIII relating to consents that are required to be
obtained).
2.3. CERTAIN PROHIBITED ACTIVITIES. Notwithstanding any provision
hereof to the contrary, the following shall govern:
(a) The indebtedness of the Partnership shall consist only of a
first lien mortgage on the Properties arising from refinancing by First Union
National Bank (the "Mortgage"), any other indebtedness permitted under the
Mortgage, and normal trade accounts payable in the ordinary course of business.
For so long as any obligation secured by the Mortgage remains outstanding and
not paid in full, the Partnership shall not incur, assume, or guaranty any
indebtedness not permitted hereunder.
(b) The Partnership shall not consolidate or merge with or into any
other entity, or convey or transfer its properties and assets substantially as
an entirety to any entity, unless:
(i) the entity (if other than the Partnership) that is formed
upon or that survives such consolidation or merger, or that acquired by
conveyance or transfer the properties and assets of the Partnership
substantially as an entirety, shall: (A) be organized and existing under the
laws of the United States of America or any State or the District of Columbia,
(B) include in its organizational documents the same limitations set forth in
this Article II and in Section 2.4 hereof (Separateness Covenants), and (C)
expressly assume the due and punctual performance of the Partnership's
obligations; and
(ii) immediately after giving effect to such transaction, no
default or event of default under any agreement to which the Partnership is a
party shall have been committed and be continuing.
(c) For so long as any obligation secured by the Mortgage remains
outstanding and not paid in full, the Partnership shall not voluntarily commence
a case with respect to itself, as debtor, under the Federal Bankruptcy Code or
any similar federal or state statute without the unanimous consent of the
Partners. For so long as any obligation secured by the Mortgage remains
outstanding and not paid in full, no material amendment to this Partnership
Agreement may be made without the prior approval of the mortgagee holding the
Mortgage.
2.4 SEPARATENESS COVENANTS. Notwithstanding any provision hereof to the
contrary, the following shall govern: For so long as any obligation secured by
the Mortgage remains outstanding and not paid in full, in order to preserve and
ensure the Partnership's separate and distinct identity, in addition to the
other provisions set forth in this Partnership Agreement, the Partnership shall
conduct its affairs in accordance with the following provisions:
(a) It shall establish and maintain an office through which its
business shall be conducted separate and apart from those of its Partners and
any affiliate and shall allocate fairly and reasonably any overhead for shared
office space.
(b) It shall maintain separate corporate records and books of
account from those of its Partners and any affiliate.
(c) All actions by the Partnership shall be authorized by the
General Partner who shall observe all necessary formalities in connection with
such authorization. The General Partner's Board of Directors and the Limited
Partner's Board of Directors each shall include at least one individual who is
an Independent Director.
(d) It shall not commingle assets with those of its Partners and
any affiliate.
(e) It shall conduct its own business in its own name.
(f) It shall maintain financial statements separate from its
Partners and any affiliate.
(g) It shall pay any liabilities out of its own funds, including
salaries of any employees, not funds of its Partners or any affiliate.
(h) It shall maintain an arm's length relationship with its
Partners and any affiliate.
(i) It shall not guarantee or become obligated for the debts of any
other entity, including its Partners or any affiliate or hold out its credit as
being available to satisfy the obligations of others.
(j) It shall use stationery, invoices and checks separate from its
Partners and any affiliate.
(k) It shall not pledge its assets for the benefit of any other
entity, including its Partners and any affiliate.
(l) It shall hold itself out as an entity separate from its
Partners and any affiliate.
(m) It shall not make any loans or advances to any third party
(including any affiliate).
(n) It shall comply with its obligations under the agreements and
instruments evidencing the Mortgage.
2.5 DEFINITIONS. For purpose of this Article II, the following terms
shall have the indicated meanings:
(a) "Independent Director" means, with respect to any Partner that
is a corporation (a "Corporate Partner") a duly appointed member of the Board of
Directors of the Corporate Partner who has not been at any time during the five
(5) years preceding his or her
initial appointment, and shall not be at any time while serving as Independent
Director, any of the following:
(i) a shareholder, director (other than in his or her capacity
as an Independent Director), officer or employee of the Corporate Partner or its
shareholders, or any affiliate of any of the foregoing;
(ii) a shareholder, director, officer, employee, partner, or
member of any customer of, or a supplier or service provider (including
professionals) to, or other person who derives more than ten percent (10%) of
its purchases, revenues, compensation, or other financial remuneration from its
activities with, the Corporate Partner, its shareholders or any affiliate of any
of the foregoing, or any person or entity who otherwise is financially dependent
upon an officer, director, or employee of the Corporate Partner or its
shareholders, or any family member (by blood or marriage) of any such officer,
director, or employee, or a business entity owned or controlled by any of the
foregoing;
(iii) a person or other entity controlling or under common
control with any shareholder, director, officer, employee, customer or supplier
of the Corporate Partner; or
(iv) a member of the immediate family of any individual
described in clause (1), (2) or (3) above.
(b) "affiliate" means, with respect to a specified person or
entity:
(i) any person or entity directly or indirectly owning,
controlling or holding with power to vote ten percent (10%) or more of the
outstanding voting securities or interests of the specified entity;
(ii) any person or entity ten percent (10%) or more of whose
outstanding voting securities or interests are directly or indirectly owned,
controlled or held with power to vote by the specified person or entity;
(iii) any person or entity directly or indirectly controlling,
controlled by or under common control with the specified person or entity;
(iv) any officer, director or partner of the specified person
or entity;
(v) if the specified person or entity is an officer, director
or partner, any company for which the specified person or entity acts in any
such capacity; and
(vi) any close relative or spouse of the specified person.
(c) "control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of a
person or entity, whether through ownership of voting securities, by contract or
otherwise.
(d) "person" means any individual, corporation, partnership,
limited liability company, joint venture, association, joint stock company,
trust (including any beneficiary thereof), unincorporated organization, or
government or any agency or political subdivision thereof.
ARTICLE III
LIMITED PARTNERS
3.1 PARTICIPATION IN MANAGEMENT. The Limited Partner shall not
participate in the management or control of the business of the Partnership, and
shall have no power to sign for or bind the Partnership.
ARTICLE IV
CAPITAL; PROFITS AND LOSSES; DISTRIBUTIONS
4.1 CAPITAL CONTRIBUTIONS. Each of the Partners has contributed to the
capital of the Partnership the property set forth on Exhibit B hereto. The
Partners shall not be required to make any additional capital contributions
except as required by law, but the Partners may make such additional
contributions of cash or property as they may mutually agree. No Partner shall
have any right to require the return of all or any part of its capital, or to
receive interest with respect thereto.
4.2 CAPITAL ACCOUNTS. A separate capital account ("Capital Account")
shall be maintained for each Partner. The value of each Capital Account shall be
the sum of the cash contributions to the account, the agreed upon value of
contributions of property to the account and the share of Partnership profits
allocated to the account, less all distributions made from the account and the
share of Partnership losses allocated to the account.
4.3 PROFITS AND LOSSES. The net profits and net losses of the
Partnership for any period (except for the profits and losses upon dissolution)
shall be credited or charged to the Capital Accounts of the Partners in the
percentages set forth on Exhibit B under the heading "Partners Percentages," as
the same may be amended from time to time (the "Partners Percentages").
4.4 DISTRIBUTIONS. Any cash which, in the opinion of the General
Partner, is not reasonably required for the operation of the business of the
Partnership or for Partnership reserves (other than amounts distributed upon
dissolution) shall be distributed to the Partners in accordance with the
Partners Percentages not less frequently than each calendar quarter. Other
distributions of assets may be made form time to time in the same manner.
4.5 REIT DISTRIBUTIONS. Notwithstanding anything to the contrary in
this Partnership Agreement, the General Partner shall cause the Partnership to
distribute amounts sufficient to enable the Apple Suites REIT to pay dividends
to shareholders so that the Apple Suites REIT will (a) meet the distribution
requirements for qualification as a REIT as set forth in
Section 857(a)(i) of the Code; and (b) avoid any Federal income or excise tax
liability imposed by the Code.
4.6 LOANS. A loan by a Partner to the Partnership shall not be
considered a capital contribution and shall be repaid as debt of the
Partnership.
ARTICLE V
INDEMNIFICATION
5.1 REQUIREMENT. The Partnership shall indemnify each Partner, and each
director and officer of a Partner (an "Indemnified Person"), against any and all
liabilities and expenses (including but not limited to reasonable legal fees and
costs) arising directly or indirectly from any action, suit or proceeding,
whether civil, criminal, administrative, arbitrative or investigative, and
whether formal or informal, that is brought or threatened against an Indemnified
Person solely because such Indemnified Person served as a Partner or as a
director or officer of a Partner, or served at the request of the Partnership as
a fiduciary for an employee benefit plan or other plan related to the business
of the Partnership. Notwithstanding the foregoing, the Partnership shall not be
required to indemnify a Partner, or a director or officer of a Partner, against
any liabilities or expenses arising from any breach of this Partnership
Agreement, willful misconduct or knowing violation of law.
5.2 RELATED ACTIONS. The Partnership shall promptly make advances or
reimbursements for reasonable expenses (including but not limited to reasonable
legal fees and costs) incurred by a Partner, or a director or officer of a
Partner, claiming indemnification under this Article unless it has been
determined that such Partner, director or officer is not entitled to
indemnification. Advances or reimbursements made prior to such determination
shall be conditioned upon the Partnership's receipt of a written undertaking by
the Partner, director or officer claiming indemnification to repay the amount of
such advances or reimbursements if it is ultimately determined that such
Partner, director or officer is not entitled to indemnification.
5.3 MANDATORY SUBORDINATION. Notwithstanding any provision hereof to
the contrary, the following shall govern: Any indemnification shall be fully
subordinated to any obligations respecting the Properties and shall not
constitute a claim against the Partnership in the event that cash flow is
insufficient to pay such obligations.
ARTICLE VI
EVENTS OF DISSOLUTION
6.1 EVENTS OF DISSOLUTION. The Partnership shall only be dissolved:
(a) upon the election of the General Partner;
(b) at such time as there is no General Partner serving unless,
within ninety (90) days, the Limited Partner consents to continue the business
of the Partnership and appoints one or more General Partners;
(c) upon automatic cancellation of the certificate of limited
partnership for failure to pay annual registration fees, unless steps are taken
promptly to obtain reinstatement; or
(d) by judicial decree.
ARTICLE VII
DISSOLUTION, WINDING UP AND TERMINATION
7.1 GENERAL. Upon dissolution without continuation, the business of the
Partnership shall be wound up by the General Partner or, if there is no General
Partner, by a representative designated by the Limited Partner (either of which
or whom is hereinafter referred to as the "Liquidating Representative"). The
Liquidating Representative shall proceed with reasonable promptness to liquidate
the business and assets of the Partnership and may determine whether, and to
which Partners, properties should be distributed in kind. Partnership assets
shall be distributed in the following order:
(a) to creditors of the Partnership, including Partners who are
creditors, in the order of priority provided by law or contract;
(b) to the creation of such reserves for contingencies as the
Liquidating Representative may deem necessary or advisable;
(c) to the Limited Partner to the extent of its contribution to
capital;
(d) to the General Partner to the extent of its contribution to
capital;
(e) to the Partners, General and Limited, according to their
Capital Account balances, after all adjustments.
ARTICLE VIII
MISCELLANEOUS
8.1 BOOKS OF ACCOUNT AND RECORDS. The Partnership shall keep complete
books of account at the Principal Office and such books shall be open to
examination by the Partners, the Apple Suites REIT and the authorized
representatives of each of them during normal business hours. The books shall be
kept on a cash or accrual basis, as determined by the General Partner.
8.2 TAX COMPLIANCE. Notwithstanding anything to the contrary contained
in this Partnership Agreement, all actions taken in the conduct of the business
of the Partnership, or on its dissolution, shall comply with the provisions of
Section 704 of the Code and the Regulations thereunder. The General Partner
shall be the "Tax Matters Partner" required by the Code.
8.3 POWER OF ATTORNEY. The Limited Partner hereby appoints the General
Partner as its attorney-in-fact, or agent, to execute, acknowledge, deliver and
file in its name any document required by law to be filed by the Partnership or
the Limited Partner with any governmental body or agency. Any such appointment
is a special power, coupled with an interest, and shall remain in effect as long
as the Partner granting it has any interest in the Partnership or remains
responsible for any obligations under this Partnership Agreement.
8.4 COUNTERPARTS. This Partnership Agreement may be executed in
counterparts, each of which shall be deemed an original but which together shall
constitute one and the same instrument.
8.5 AMENDMENTS. This Partnership Agreement may be amended only with the
written consent of the General Partner and the Limited Partner.
8.6 THIRD PARTIES; SUCCESSORS AND ASSIGNS. The agreements contained
herein are for the benefit of the parties hereto and their permitted successors
and assigns and are not for the benefit of any third parties, such as, without
limitation, creditors of the Partnership.
8.7 HEADINGS. The section headings in this Partnership Agreement are
included for convenience only and shall not affect the interpretation of this
Partnership Agreement.
8.8 INTERPRETATION. This Partnership Agreement is executed and
delivered in the Commonwealth of Virginia and shall be construed and enforced in
accordance with its laws, without regard to any choice of law rules to the
contrary.
[Remainder of Page is Blank. Signatures Appear on Following Page]
WITNESS the following signatures:
General Partner: APPLE SUITES GENERAL, INC.
By: /s/ Stanley J. Olander, Jr.
------------------------------
Stanley J. Olander, Jr.
Secretary
Limited Partner: APPLE SUITES LP, INC.
By: /s/ Stanley J. Olander, Jr.
------------------------------
Stanley J. Olander, Jr.
Secretary
EXHIBIT A
(LIST OF PROPERTIES)
The Properties consist of those real properties, together with all improvements
thereon, that are located at the following addresses (and that are more fully
described in agreements and instruments evidencing the Mortgage):
Dallas-Addison Homewood Suites
4451 Beltline Road
Addison, TX 75244
Dallas-Irving/Las Colinas Homewood Suites
4300 Wingren Drive
Irving, TX 75039
North Dallas-Plano Homewood Suites
4705 Old Sheppard Place
Plano, TX 75093
Exhibit B
(Capital Contributions)
Name and Capital Partners
Business Address Contributions Percentages
---------------- ------------ -----------
GENERAL PARTNER: Apple Suites General, Inc. $1.00 1%
9 North Third Street
Richmond, Virginia 23219
LIMITED PARTNER: Apple Suites LP, Inc. $99.00 99%
9 North Third Street
Richmond, Virginia 23219