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AGREEMENT OF LIMITED
PARTNERSHIP
OF ROME ACQUISITION LIMITED
PARTNERSHIP
This Agreement of Limited Partnership of Rome
Acquisition Limited Partnership (the or this " Agreement "),
a Delaware limited partnership (the " Partnership "), is
entered into effective as of November 15, 2006 (the " Effective
Date ") among WH Rome Partners LLC, a Delaware limited
liability company, as a General Partner (" Macklowe ", in
its capacity as a General Partner) and as a Limited Partner ("
Macklowe Company ", in its capacity as a Limited Partner),
and Meadow Star LLC, a Delaware limited liability company, as a
General Partner (" Icahn ", in its capacity as a General
Partner) and as a Limited Partner (" Icahn Company ", in its
capacity as a Limited Partner). In consideration of the premises
and covenants contained herein, the parties agree as of the
Effective Date as follows:
ARTICLE I
CERTAIN DEFINITIONS
Section 1.1 Certain Terms . The definitions set forth in Exhibit A
attached hereto shall apply to this Agreement.
ARTICLE II
NAME, OFFICE, BUSINESS
Section 2.1 Name . The name of the Partnership is "Rome Acquisition
Partnership", or such other name or variations thereof as may, from
time to time, be selected by the General Partners or as may be
necessary to comply with laws, rules or regulations applicable to
the business of the Partnership.
Section 2.2 Registered Office in the State of Delaware: Agent for
Service . The address of the Partnership’s registered
office in the State of Delaware is c/o The Corporation Service
Company, Corporation Trust Center, 2711 Conterville Rd., Suite 400,
Wilmington, County of New Castle, Delaware 19808. The name of the
Partnership’s registered agent for service of process in the
State of Delaware at such address is The Corporation Service
Company or such other agent as may be designated from time to time
by the General Partners.
Section 2.3 Business of the Partnership . The business of the
Partnership shall be to engage in the acquisition of the Target and
after the Closing Date to manage and/or sell certain properties as
determined by the General Partners, and to do any and all other
acts and things that the General Partners in their sole discretion
may mutually decide.
Section 2.4 Location of Principal Place of Business . The location
of the principal place of business of the Partnership is 445
Hamilton Avenue, Suite 1210, White Plains, NY 10601, or such other
location as may from time to time be determined by the General
Partners.
Section 2.5 Term . The term of the Partnership (the " Term ")
shall commence with the filing with the Secretary of State of the
State of Delaware of the Certificate of Limited Partnership of the
Partnership on November 15, 2006 and shall continue until December
31, 2011.
ARTICLE III
CAPITAL CONTRIBUTIONS
Section 3.1 Initial Capital Contributions . By no later than
November 27, 2006, the initial aggregate capital contributions of
all of the Partners shall be U.S. $1,200,000,000.00 (the "
Initial Capital Commitment "), subject to the conditions set forth
in this Section 3.1. Each Partner hereby agrees to contribute to
the Partnership by no later than November 27, 2006, a capital
contribution (with respect to each Partner an " Initial Capital
Contribution ") in cash in the amount set forth next to such
Partner’s name on Schedule A hereto; provided, however, that
(I) no such capital contributions shall be required and (II) to the
extent that such capital contributions shall have been made, such
capital contributions shall be returned to any Partner upon its
request unless (x) the price to be paid per Target Security
pursuant to the definitive agreement between the Partnership or its
wholly-owned subsidiary and the Target providing for the
acquisition of the Target (the " Acquisition Agreement ")
does not exceed $49.00 per Target Security and (y) the aggregate
amount of equity required to consummate the acquisition of Target
pursuant to the Acquisition Agreement does not exceed (without
taking into account any of the Shared Expenses) the Initial Capital
Commitment. Any breach by a Partner of this Section 3.1 shall
constitute a " Failure to Contribute " hereunder, and any
Partner that so breaches this Agreement shall constitute a "
Non-Contributing Partner ." The General Partner that is a
member of the General Partner Group that does not have the
Non-Contributing Partner shall be entitled to collect from the
other General Partner that is a member of the General Partner Group
that does have the Non-Contributing Partner, and such General
Partner shall pay to the General Partner that is so entitled to
collect or its designee, an amount equal to $60,000,000 (the "
Failure to Contribute Amount "). Notwithstanding anything in
this Agreement to the contrary, the Failure to Contribute Amount
shall be the sole and exclusive remedy against a Non-Contributing
Partner with respect to any Failure to Contribute.
Section 3.2 Additional Capital Contributions . After the Effective
Date, the General Partners may from time to time attempt to agree
on additional capital commitments to the Partnership. If the
General Partners agree on the amount of an additional capital
commitment of each General Partner (in each case, and with respect
to each General Partner, an " Additional Capital Commitment "),
they will enter into such commitment by executing a commitment
letter (in each case a " Commitment Letter ") and deliver it
to the General Partners and the Partnership, and Icahn and Macklowe
will each thereby become bound to make an additional capital
contribution (in each case and with respect to each General
Partner, an " Additional Capital Contribution ") to the
Partnership up to the amount of an Additional Capital Commitment
agreed upon in such Commitment Letter at the written request of one
General Partner to the other General Partner (in each case a "
Capital Contribution Request Letter "), which request shall
set forth an amount of an Additional Capital Contribution that each
General Partner shall contribute to the Partnership. Also, each of
Icahn and Macklowe shall be entitled, from time to time, to make an
Additional Capital Contribution to the Partnership (the "
Contribution Right "), provided the aggregate of all
Additional Capital Contributions contributed by such General
Partner to the Partnership from the date of the last in time
Commitment Letter does not exceed the Additional Capital Commitment
of such General Partner set forth in such Commitment Letter. Each
of Icahn and Macklowe may, in its sole and absolute discretion,
choose to make an Additional Capital Contribution hereunder by
causing each of Icahn Company and Macklowe Company, respectively,
to make such Additional Capital Contribution.
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Section 3.3 Obligation to Contribute . Each of Icahn and Macklowe
shall cause each of Icahn Company and Macklowe Company,
respectively, to make an Additional Capital Contribution to the
Partnership on the date, in the amount and otherwise in accordance
with the terms prescribed by a Capital Contribution Request Letter,
provided that such Additional Capital Contribution does not cause
such General Partner to make an Additional Capital Contribution
beyond its Additional Capital Commitment pursuant to the last in
time Commitment Letter.
Section 3.4 No
Right or Obligation . Except as otherwise provided in this
Agreement or required by law, no Partner shall be obligated to or
have a right to make an additional Capital Contribution to the
Partnership.
Section 3.5 Form
of Capital Contribution . Capital Contributions to the
Partnership shall be made in cash only.
Section 3.6 No
Interest on Capital Contributions . No Partner shall be
entitled to interest on or with respect to any Capital Contribution
or any amounts to be paid to such Partner pursuant to this
Agreement.
Section 3.7 Distribution and Return on Capital Contributions .
Except as otherwise unanimously agreed to by the General Partners,
no Partner shall be entitled to a return of any part of its Capital
Contributions or to receive any distributions from the
Partnership.
Section 3.8 Expenses .
Internal Expenses . For avoidance of
doubt, each Partner shall be responsible for its own internal
expenses related to or arising out of its activities outside of the
Partnership and shall not have any right of reimbursement by the
Partnership of such expenses.
Shared Expenses . The Partners shall
bear, pro rata in accordance with their respective Capital Accounts
, (i) all fees and expenses of the financial advisors, legal
advisor and accounting firm engaged by either General Partner on
behalf of the Partnership in connection with the preparation and
submission of a proposal with respect to the acquisition of Target,
the negotiation and execution of the Acquisition Agreement and
taking the other actions contemplated by this Agreement with
respect to the proposed acquisition of Target and (ii) other
third-party costs incurred by one General Partner on behalf of the
Partnership in connection with the preparation and submission of a
proposal with respect to the acquisition of Target, the negotiation
and execution of the Acquisition Agreement and taking the other
actions contemplated hereunder as unanimously approved by the
General Partners, including any costs associated with structuring
any debt financing for the acquisition of Target; provided that the
fees and expenses described in both clauses (i) and (ii) above are
incurred with the unanimous consent of each General Partner (the
" Shared Expenses "); and provided, further and notwithstanding
that Shared Expenses must be approved by the unanimous consent of
each General Partner, that if Icahn (x) has paid to the Partnership
its pro rata share (based on the amount set forth next to
Icahn’s name on Schedule A) of any Shared Expenses and (y)
requests that Macklowe pay to the Partnership its pro rata
share (based on the amount set forth next to Macklowe’s
name on Schedule A) of such Shared Expenses, then, within three (3)
business days of such request, Macklowe shall pay to the
Partnership its pro rata share of such Shared Expenses. In the
event that Macklowe does not make the foregoing payment to the
Partnership within such three (3) business days period, Icahn shall
be entitled to collect from Macklowe, and Macklowe shall pay to
Icahn or its designee, the Failure to Contribute Amount.
Notwithstanding anything in this Agreement to the contrary, the
Failure to Contribute Amount shall be the sole and exclusive remedy
against Macklowe with respect to any failure to pay to the
Partnership its pro rata share of any Shared Expenses in accordance
with this Section 3.8(b).
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Repayment of Debt . If the General
Partners unanimously elect, or are required by one or more third
parties, to repay or repurchase at the Closing Date (or thereafter
in connection with the sale of properties) any indebtedness of
Target or any subsidiary of Target, at the Closing Date (or
thereafter in connection with the sale of properties), the Partners
shall pay in cash such indebtedness plus any costs, expenses or
fees associated with such repayment or repurchase, including
without limitation any prepayment fees or penalties, to be
repaid, pro rata in accordance with their
respective Capital Accounts. For these purposes, "indebtedness"
shall be deemed to include the costs of unwinding any interest rate
swaps, caps, treasury locks and other derivatives and hedges
associated with the indebtedness that is being repaid.
ARTICLE IV
ALLOCATION OF PROFITS AND
LOSSES
Section 4.1 Allocation of Profits and Losses .
Allocation of Profits . Profits for
each Accounting Period shall be allocated among the Partners in
accordance with the positive balances of their Capital Accounts as
of the beginning of such Accounting Period.
Allocation of Losses . Losses for each
Accounting Period shall be allocated among the Partners in
accordance with the positive balances of their Capital Accounts as
of the beginning of the Accounting Period.
Timing of Allocations . Allocations of
Profits and Losses as provided in this Section 4.1 shall be made as
of the end of each Accounting Period.
Section 4.2 Additional Allocation Provisions .
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Except as provided below in this Section 4.2, the
net profits and net losses of the Partnership, as determined for
Federal income tax purposes, shall be allocated in the same manner
as Profits and Losses are allocated under Sections 4.1
hereof.
Notwithstanding the foregoing provisions of this
Article IV hereof, the aggregate General Partner’s interest
in each item of Partnership income, gain, loss, deduction or credit
shall equal at least 1% of each of those items at all times during
the existence of the Partnership. In determining each General
Partner’s interest in those items, any Limited
Partner’s interest owned by such General Partner shall not be
taken into account.
Notwithstanding the provisions of Article IV
hereof, items of Partnership income, gain, loss or deduction, as
determined for Federal income tax purposes, shall be specially
allocated to the Partners to eliminate the difference between the
adjusted tax basis and the book value of such Target Securities, in
accordance with the principles of Code § 704(c),
the Treasury Regulations there-under, and Treasury Regulations
§ 1.704-1(b)(4)(i); provided , however ,
that in the event of a withdrawal of a Partner, the General
Partners other than a withdrawing Partner, acting together by
unanimous agreement, shall have reasonable discretion to specially
allocate items of Partnership income, gain, loss or deduction, as
determined for Federal income tax purposes, first to the
withdrawing Partner in order to eliminate any disparity between
such withdrawing Partner’s adjusted tax basis in its
Partnership Interest and its Capital Account immediately prior to
such withdrawal.
ARTICLE V
DISTRIBUTION, WITHDRAWAL AND
BUY-SELL OFFER
Section 5.1 Distribution of Available Cash and Property . The
General Partners may from time to time, in their sole discretion,
acting together by unanimous agreement, distribute to the General
Partners and the Limited Partners, pro rata in accordance with the
relative positive balances of their Capital Accounts, cash or other
property held by the Partnership, determined by the General
Partners, in their sole discretion, acting together by unanimous
agreement, to be available for distribution. Any withholding tax
imposed with respect to a distribution to a Partner shall be deemed
to be a distribution.
Section 5.2 Withdrawal . Except pursuant to Section 5.3 ("
Buy-Sell Offer ") or Article VII ("TRANSFERS OF INTERESTS BY
PARTNERS"), no Partner shall have the right to withdraw from the
Partnership and no Partner shall withdraw from the Partnership
under any circumstances or make a demand for withdrawal of any or
all of its Capital Contributions.
Section 5.3 Buy-Sell Offer . Any General Partner Group (the "
Initiating Partners ") may at any time (i) after the ninetieth (90
th ) day after the Closing Date and (ii) after notice to
the other General Partner Group that the General Partners fail to
unanimously agree pursuant to Section 6.2 on any action under this
Agreement, deliver to Icahn, with respect to Icahn Group, or
Macklowe, with respect to Macklowe Group (with respect to either
Icahn Group or Macklowe Group, as the case may be, the "
Non-Initiating Partners ") an offer (the " Buy-Sell
Offer ") in writing stating the purchase price on a per unit or
percentage basis at which the Initiating Partners and/or their
Affiliate(s) designated by the Initiating Partners in the Buy-Sell
Offer (each an " Initiating Designee " and collectively "
Initiating Designees ") are willing to purchase from the
Non-Initiating Partners or sell to the Non-Initiating Partners all
(but not less than all) Interests in the Partnership held in the
case of a purchase by the Non-Initiating Partners, and in the case
of a sale by the Initiating Partners.
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Icahn or Macklowe, as the case may be, on behalf
of the Non-Initiating Partners, shall then be obligated to elect
to:
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(i)
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sell to the Initiating Partners and/or Initiating
Designees, as the case may be, all (but not less than all)
Interests in the Partnership then owned by the Non-Initiating
Partners at the purchase price and upon the terms and conditions
set forth in the Buy-Sell Offer; or
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(ii)
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purchase from the Initiating Partners on their
own and/or through their Affiliate(s) designated by the
Non-Initiating Partners and disclosed to the Initiating Partners in
writing (each a " Non-Initiating Designee " and collectively
" Non-Initiating Designees ") all (but not less than all)
Interests in the Partnership at the purchase price and upon the
terms and conditions set forth in the Buy-Sell Offer.
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Icahn or Macklowe, as the case may be, on behalf
of the Non-Initiating Partners, shall give written notice of such
election to the Initiating Partners within thirty (30) days after
receipt of the Buy-Sell Offer. Failure of Icahn or Macklowe, as the
case may be, on behalf of the Non-Initiating Partners, to give the
Initiating Partners notice of their election within said 30-day
period shall conclusively be deemed to be an election under clause
(i) above.
The closing of any purchase and sale of Interests
in the Partnership pursuant hereto shall occur no later than ten
(10) days following the delivery of the notice of election set
forth above or such earlier date as shall be specified in writing
by the Purchasing Partners, unless an approval for the consummation
of the foregoing transaction is required from any Regulatory
Authority, in which case such closing shall take place no later
than 10 days following such approval. At any closing pursuant to
this section, a General Partner Group which is selling Interests in
the Partnership, whether such General Partner Group shall be of the
Initiating Partners or the Non-Initiating Partners who elect to
sell (the " Exiting Partners "), shall sell, transfer and
assign to the other General Partner Group purchasing such Interests
and the Target Securities (the " Purchasing Partners ") all
right, title and interest in and to the Exiting Partners’
Interests in the Partnership free and clear of all liens, claims
and encumbrances, the Purchasing Partners shall pay for such
interests and Interests in cash or immediately available Federal
funds and, at the request of the Purchasing Partners, the Exiting
Partners shall execute all other documents and take such other
actions as may be reasonably necessary or desirable to effectuate
the transfer of the Interests in the Partnership and to carry out
the purposes of this Agreement.
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In the event, the Exiting Partners fail to comply
with the closing procedure set forth above, the Purchasing Partners
may, in their discretion, chose to deliver to the Partnership and
the Exiting Partners a Payment Notice (as defined below), and the
Partnership and the Exiting Partners shall abide by the procedure
set forth in the Payment Notice.
Section 5.4 Material Breaches of Section 5.3 . Any breach by a
Partner of Section 5.3 ("Buy-Sell Offer") shall constitute a "
Material Breach " hereunder, and any Partner that is in "Material
Breach" shall constitute a " Subject Partner ." The General
Partner, that is a member of the General Partner Group that does
not have the Subject Partner as its member, and/or its Affiliate(s)
designated by such General Partner shall be entitled to purchase
(without any obligation to do so) (the " Purchase Option ")
all (but not less than all) of the Interests of the General Partner
Group that has the Subject Partner as its member at price equal to
seventy five percent (75%) of the Capital Account of that General
Partner Group on the date of the Material Breach by tendering to
the Partnership and such Subject Partner a payment notice (a "
Payment Notice ") at any time after the Material Breach,
which Payment Notice shall set forth the procedure for the payment
for the Interest in immediately available Federal funds, and the
Partnership and the Subject Partner shall abide by such procedure.
The Subject Partner shall be deemed to have waived any defenses it
may have to the purchase of its Interest pursuant to the Purchase
Option. Notwithstanding the foregoing, nothing herein shall be
construed as a waiver of any other rights or remedies that the
Partnership and/or each of its Partners may have against the
Subject Partner at law or in equity, including damages for any
breach of this Agreement, whether or not the Purchase Option is
exercised.
ARTICLE VI
POWERS RIGHTS AND DUTIES OF THE
GENERAL PARTNER
Section 6.1 Authority . Except as otherwise specifically stated
herein, the General Partners, acting together by unanimous
agreement, shall have exclusive and complete authority and
discretion to manage the operations and affairs of the Partnership
and to make all decisions regarding the business of the
Partnership.
Section 6.2 Powers and Duties of General Partner . The General
Partners shall be solely responsible for the administration of the
Partnership and any act by the Partnership shall, except as
otherwise set forth in ARTICLE III ("CAPITAL CONTRIBUTIONS") and
Section 5.3 ("Buy-Sell Offer") hereof, require the unanimous
approval of the General Partners, including, without limitation,
(i) admission of any other person as a Partner, (ii) any matter
relating to any transaction between the Partnership or any entity
controlled by the Partnership and any General Partner or Limited
Partner, (iii) any distributions to the Partners (iv) determining
to require any Capital Contribution from the Partners, (v) except
as set forth in Section 5.3 hereof, the taking of any action by the
Partnership prior to the acquisition of any Target Securities, (vi)
a change in the purpose of the Partnership, (vii) the dissolution
of the Partnership, (viii) the sale or purchase of Target
Securities by the Partnership or the voting of Target Securities by
the Partnership but not by any Partner or any of its Affiliates
(other than the Partnership), (ix) appointment of and/or delegation
of authority to one General Partner or any representative of any
General Partner to represent the Partnership and/or each of the
General Partners in any specific affairs, undertakings, matters or
projects of the Partnership during a specific time or period, and
in any event, until one General Partner objects to such appointment
or delegation by giving written notice of such objection to the
other General Partner and therefore revokes its consent (x) public
disclosure of the plans, strategies or affairs of the Partnership
and (xi) sales of any assets of the Partnership. Except as
otherwise specifically provided herein, the General Partners,
acting by unanimous agreement, shall have (x) all rights and powers
of a general partner under the Uniform Act; (y) all authority,
rights and powers in the management of the Partnership business to
do any and all other acts and things necessary, proper, convenient
or advisable to effectuate the purpose of this Agreement, to carry
on the business of the Partnership and/or as permitted by law and
(z) the sole power to approve a transfer, domestication,
continuance, merger, consolidation or conversion of the
Partnership. From time to time, the General Partners may, by
unanimous consent, appoint one or more officers or agents (which
may be a General Partner) to act on behalf of the Partnership with
respect to such matters and affairs as shall have been specified in
such appointment. Either General Partner may revoke such
appointment at any time to be effective as set forth in written
notice given by the General Partner desiring to make such
revocation to the other General Partner and such appointee.
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Section 6.3 Liability . Except as otherwise specifically provided in
this Agreement, no member of a General Partner Group or/and no
Affiliate of a General Partner shall be personally liable for the
return of any portion of the Capital Contributions of any of the
General Partners or of the Limited Partners or shall be required to
pay to the Partnership or any Limited Partner any deficit in any
Partner’s Capital Account. Except as otherwise specifically
provided in this Agreement, no General Partner, former, present or
future Partner, member, officer, director, stockholder, employee,
agent or Affiliate of a General Partner shall be liable,
responsible or accountable to the Partnership or any Limited
Partner for (a) any act or omission performed or omitted by any of
them, or for any costs, damages or liabilities arising therefrom,
or by law, unless that act or omission was performed or omitted
fraudulently or in bad faith or through negligence or gross
negligence or intentional misconduct; or (b) except as provided in
clause (a) of this Section 6.3 with respect to the Person who
performed or omitted such acts, any costs, damages or liabilities
due to the negligence, dishonesty or bad faith of any employee,
officer, broker, consultant or other agent of the Partnership,
selected, engaged and retained in good faith by a General
Partner.
Section 6.4 Indemnification . (a) The Partnership shall:
(i) indemnify and
hold harmless each member of the General Partner Group and
Affiliates of each General Partner and the respective personal
representatives, heirs, successors in interest and assignees of any
thereof (each, an " Indemnified Party "), from and against
any and all damages incurred or suffered by any Indemnified Party
arising out of or in connection with the Partnership’s
business or affairs; provided , however , that the
Partnership shall not indemnify or hold harmless any Indemnified
Party with respect to any act or omission which was performed or
omitted fraudulently or in bad faith by it; and
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(ii) advance to any
Indemnified Party expenses for which the Partnership is required to
indemnify the Indemnified Party pursuant to this Section 6.4
subject to the undertaking of the Indemnified Party to repay such
advances if it is ultimately determined that such Indemnified Party
is not entitled to be indemnified.
Survival . The exculpation provided in
Section 6.3 hereof and the indemnification provided in this Section
6.4 shall survive any termination of this Agreement. Any Person
entitled to exculpation pursuant to Section 6.3 hereof and/or
indemnification pursuant to this Section 6.4 shall remain entitled
to such exculpation and/or indemnification to the same extent as
prior to any of the following events with respect to any matter
arising or occurring prior to such event and shall have no
liability with respect to any matter arising after such event: (i)
such Person ceases to be a partner, member, officer, director,
stockholder, employee, agent or Affiliate of a General Partner or
its Affiliates; or (ii) a General Partner ceases to be one of the
general partners of the Partnership, unless such Person is a
partner, member, officer, director, stockholder, employee, agent or
Affiliate of a permitted hereunder successor to such General
Partner.
Repayment . If it shall ultimately be
determined that the Indemnified Party is not entitled to the
indemnification provided by this Section 6.4, the Indemnified Party
shall promptly repay to the Partnership the amount of any
expenses advanced to such Indemnified Party and the amount of all
costs of the Partnership in providing indemnification pursuant to
this Agreement.
Section 6.5 Management of Acquired Assets . To the extent that
customary property management services are required with respect to
any property acquired under the Acquisition Agreement, services may
be provided by Icahn, Macklowe or an outside manager in exchange
for payment of customary management fees in amounts to be agreed to
by the General Partners, acting together by unanimous agreement,
provided, however that if Icahn desires
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