Exhibit 3.10
AGREEMENT OF LIMITED
PARTNERSHIP
OF
GMAC INSTITUTIONAL ADVISORS
LP
By and Among
GMACCM IA HOLDING
LLC
as General
Partner
and
GMAC COMMERCIAL MORTGAGE
CORPORATION
as Limited
Partner
Dated as of December 31,
2005
AGREEMENT OF LIMITED
PARTNERSHIP
OF
GMAC INSTITUTIONAL ADVISORS LP
a Delaware limited partnership
THIS AGREEMENT OF LIMITED PARTNERSHIP (this
“Agreement”) of GMAC Institutional Advisors LP (the
“Partnership”) is entered into by and among GMACCM IA
Holding LLC, a Delaware limited liability company
(“GP”), as the General Partner, and GMAC Commercial
Mortgage Corporation, a California corporation (“LP”),
as the Limited Partner.
WHEREAS, GMAC Institutional Advisors LLC (the
“Company”) was formed on October 2, 2000 as a Delaware
limited liability company and currently exists under that certain
Limited Liability Company Agreement dated as of November 1, 2000,
as amended by that certain Assignment of Limited Liability Company
Interest in the Company dated as of December 31, 2005 (the
“Operating Agreement”), which Assignment transferred 1%
of the membership interests in the Company to GMACCM IA Holding
LLC, leaving GMAC Commercial Mortgage Corporation as the holder of
99% of the membership interests in the Company and GMAC
Institutional Advisors Holding LP (collectively the “Existing
Members”);
WHEREAS, on the date hereof, by unanimous
written consent, the Existing Members approved the conversion of
the Company to a Delaware limited partnership and approved this
Agreement;
WHEREAS, on the date hereof, the Company was
converted to a Delaware limited partnership pursuant to Section
18-216 of the Delaware Limited Liability Company Act (6 Del
. C . § 18-101 et seq .), as amended from
time to time, and Section 17-217 of the Delaware Revised Uniform
Limited Partnership Act (6 Del . C . § 17-101
et seq .), as amended from time to time (the
“Act”), by causing the filing with the Secretary of
State of the State of Delaware of a Certificate of Conversion to
Limited Partnership and a Certificate of Limited Partnership (the
“Conversion”); and
WHEREAS, pursuant to this Agreement and the
Conversion, upon the effectiveness of the Conversion, the Existing
Members shall become the partners of the limited partnership
resulting from the Conversion of the Company.
NOW, THEREFORE, the Partners hereby enter into
this Agreement in order to set forth the rights and obligations of
the Partners and certain matters relating thereto.
ARTICLE I
Organizational Matters
1.1
Formation The
Partnership is formed as a result of the conversion of GMAC
Institutional Advisors LLC, a Delaware limited liability company,
pursuant to Section 18-216 of the Delaware Limited Liability
Company Act, 6 Del . C . § 18-101, et
seq ., and Section 17-217 of the
Delaware
Revised Uniform Limited Partnership Act, 6 Del . C .
§§ 17-101 et seq . as from time to time
amended and any successor statute (the “Act”), and
pursuant to the filing of the Certificate of Limited Partnership
and Certificate of Conversion effective as of December 31, 2005.
Effective as of the time of the Conversion, (i) the Operating
Agreement is replaced and superseded in its entirety by this
Agreement in respect of all periods beginning on or after the
Conversion, (ii) the membership interest of GMACCM IA Holding LLC
in the Company is converted to a general partnership interest in
the Partnership and the membership interest of GMAC Commercial
Mortgage Corporation in the Company is converted into a limited
partnership interest in the Partnership and the Existing Members
are automatically admitted to the resulting Partnership as General
Partner and Limited Partner of the Partnership, respectively, all
in accordance with Section 4.1 hereof and the terms of this
Agreement, and (iii) the Partners are continuing the business of
the Company without dissolution in the form of a Delaware limited
partnership governed by this Agreement. In accordance with Section
17-217 of the Act, the Partnership shall constitute a continuation
of the existence of the Company in the form of a Delaware limited
partnership and, for all purposes of the laws of the State of
Delaware, shall be deemed to be the same entity as the Company.
Except as expressly provided herein to the contrary, the rights and
obligations of the Partners and the administration and termination
of the Partnership shall be governed by the Act.
1.2
Name. The name of the Partnership is to be GMAC
Institutional Advisors LP, and the business of the Partnership is
to be conducted under such name. The Partnership’s business
may be conducted under any other name or names deemed advisable by
the General Partner. The General Partner may change the name of the
Partnership at any time and from time to time.
1.3
Registered Office; Principal Place of Business. The
registered and principal office of the Partnership in the State of
Delaware is to be Corporation Trust Center, 1209 Orange Street,
Wilmington, New Castle County, Delaware and The Corporation Trust
Company is to be the registered agent for service of process on the
Partnership at such office. The Partnership may maintain offices at
such other place or places as the General Partner deems advisable
or necessary to efficiently conduct the Partnership’s
business.
1.4
Term. The Partnership’s existence shall be deemed
to have commenced on October 2, 2000, which is the date GMAC
Institutional Advisors LLC commenced its existence pursuant to the
filing of its Certificate of Formation with the Secretary of State
of the State of Delaware, and the Partnership’s existence
shall continue until terminated in accordance with the terms of
this Agreement.
ARTICLE II
Definitions
The
following definitions shall for all purposes, unless otherwise
clearly indicated to the contrary, apply to the terms used in this
Agreement.
“Act” shall have the meaning
assigned to such term in Section 1.1.
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“Adjusted Capital
Account” shall mean, with respect to any Partner,
the balance, if any, in such Partner’s Capital Account as of
the end of the relevant taxable year, after giving effect to the
following adjustments:
(a) credit
to such Capital Account the maximum amount which such Partner could
then be obligated to restore pursuant to any provision of this
Agreement or is deemed to be obligated to restore pursuant to the
Allocation Regulations.
(b) debit
to such Capital Account the items described in Sections
1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5), and
1.704-1(b)(2)(ii)(d)(6) of the Allocation Regulations.
The
foregoing definition of Adjusted Capital Account is intended to
comply with the provisions of Section 1.704-1(b)(2)(ii)(d) of the
Allocation Regulations and shall be interpreted consistently
therewith.
“Affiliate”
shall mean any Person that directly or indirectly controls, is
controlled by or is under common control with the Person in
question. As used in this definition, “control” means
the possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of a Person,
whether through ownership of voting securities, by contract or
otherwise.
“Agreement”
shall mean this Agreement of Limited Partnership of GMAC
Institutional Advisors LP, as it may be amended or restated from
time to time.
“Allocation
Regulations” shall mean Treasury Regulation
Sections 1.704-1(b), 1.704-2 and 1.704-3 (including any temporary
regulations) as such regulations may be amended and in effect from
time to time and any corresponding provision of succeeding
regulations.
“Assignee”
means any transferee meeting the requirements of Article X.
“Capital
Account” shall mean the capital account maintained
for a Partner pursuant to Section 4.3.
“Capital
Contributions” shall mean any cash or property
contributed to the Partnership by a Partner.
“Carrying
Value” means (a) with respect to property
contributed to the Partnership, the fair market value of such
property at the time of contribution reduced (but not below zero)
by all depreciation, depletion (computed as a separate item of
deduction), amortization and cost recovery deductions charged to
the Partners’ Capital Accounts, (b) with respect to any
property whose value is adjusted pursuant to the Allocation
Regulations, the adjusted value of such property reduced (but not
below zero) by all depreciation and cost recovery deductions
charged to the Partner’s Capital Accounts and (c) with
respect to any other Partnership Property, the adjusted basis of
such property for federal income tax purposes, all as of the time
of determination.
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“Certificate of
Conversion” means the Certificate of Conversion
described in Section 1.1.
“Certificate of Limited
Partnership” means the Certificate of Limited
Partnership of the Partnership filed with the Secretary of State of
the State of Delaware pursuant to Section 17-201 of the Act.
“Code”
shall mean the Internal Revenue Code of 1986, as amended and in
effect from time to time, and any successor statute.
“Conversion”
means the Conversion under Section 18-216 of the Delaware Limited
Liability Company Act and Section 17-217 of the Act described in
the Whereas clauses and Section 1.1.
“General
Partner” shall mean GP.
“Limited
Partner ” shall mean LP.
“Notice”
shall have the meaning assigned to such term in Section 16.1.
“Partner”
shall mean the General Partner or the Limited Partner.
“Partnership”
shall mean the limited partnership created pursuant to this
Agreement.
“Partnership
Interest” shall mean the interest of a Partner in
the Partnership.
“Partnership
Property” shall mean any and all property, both
real and personal, tangible and intangible, whether contributed or
otherwise acquired, owned by the Partnership.
“Percentage
Interest” shall mean those percentages set forth
opposite the Partners’ names on Exhibit A.
“Person”
shall mean an individual, estate, corporation, limited liability
company, partnership, limited liability partnership, trust,
unincorporated organization, association, enterprise or other
entity.
ARTICLE III
Purpose
The
purpose and nature of the business to be conducted by the
Partnership shall be (i) continue the business of the Company in
raising, investing, and managing for a fee institutional capital
used for real estate debt and equity investment alternatives; (ii)
to own and operate all Partnership Property; and (iii) as permitted
by the Act, to engage in any other activities as determined by the
General Partner. The General Partner shall execute, deliver and
file any other certificates, affidavits and other documentation
(and any amendments and/or restatements thereof)
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necessary to
qualify the Partnership as a foreign limited partnership in any
state or other jurisdiction in which such qualification is required
by law.
ARTICLE IV
Capital Contributions and Capital Accounts
4.1
Capital Contributions.
(a)
On the date of the conversion, GP’s 1% interest in GMAC
Institutional Advisors LLC, a Delaware limited liability company
immediately prior to conversion shall be converted to a 1% General
Partner Partnership Interest, and simultaneously therewith GP shall
be admitted as a General Partner in respect of such Partnership
Interest.
(b)
On the date of the conversion, LP’s 99% interest in GMAC
Institutional Advisors LLC immediately prior to conversion shall be
converted to a 99% Limited Partner Partnership Interest, and
simultaneously therewith LP shall be admitted as a Limited Partner
in respect of such Partnership Interest.
4.2
Additional Capital Contributions of the Partners. The
Partners shall not be required to make additional Capital
Contributions to the Partnership unless they otherwise agree.
4.3
Capital Accounts. The Partnership will maintain and
shall continue to maintain for each Partner a separate Capital
Account in accordance with Treasury Regulation Section 1.704-1(b)
et seq ., as such regulations may be amended and in
effect from time to time and any corresponding provisions of
succeeding regulations.
4.4
Interest. No interest shall be paid by the Partnership
on Capital Contributions or on balances in the Partners’
Capital Accounts.
4.5
Loans from the Partners. Loans by a Partner to
the Partnership shall not be considered Capital Contributions.
ARTICLE V
Allocations and Distributions
5.1
Allocations For Capital Account Purposes.
(a)
General. Except as otherwise set forth in Section 5.1(b),
for purposes of maintaining the Capital Accounts and in determining
the rights of the Partners among themselves, the
Partnership’s items of income, gain, loss and deduction shall
be allocated and charged to the Partners in accordance with their
respective Percentage Interests.
(b)
Special Allocations. The following special allocations shall
be made prior to making any allocations provided for in 5.1(a)
above:
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(i)
Qualified Income Offset. Except as provided in Section
5.1(b)(ii) hereof, in the event any Partner unexpectedly receives
any adjustments, allocations or distributions described in Treasury
Regulation Sections 1.704-1(b)(2)(i)(d)(4),
1.704-1(b)(2)(ii)(d)(5), or 1.704-1(b)(2)(ii)(d)(6), items of
Partnership income and gain shall be specifically allocated to such
Partner in an amount and manner sufficient to eliminate, to the
extent required by the Allocation Regulations, the deficit balance,
if any, in its Adjusted Capital Account created by such
adjustments, allocations or distributions as quickly as
possible.
(ii)
Nonrecourse Debt Allocations. Notwithstanding any other
provision of this Section 5.1, each Partner shall be allocated
items of Partnership income and gain in each fiscal year as
necessary, in the General Partner’s discretion, to comply
with the Allocation Regulations relating to nonrecourse
debt.
(iii) Gross
Income Allocations. In the event any Partner has a deficit
balance in its Adjusted Capital Account at the end of any
Partnership taxable period, such Partner shall be specially
allocated items of Partnership gross income and gain in the amount
of such excess as quickly as possible; provided, that an allocation
pursuant to this Section 5.1(b)(iii) shall be made only if and to
the extent that such Partner would have a deficit balance in its
Adjusted Capital Account after all other allocations provided in
this Section 5.1 have been tentatively made as if Section
5.1(b)(iii) were not in the Agreement.
(iv) Code
Section 754 Adjustment. To the extent an adjustment to the
adjusted tax basis of any Partnership asset pursuant to Section
734(b) or 743(b) of the Code is required, pursuant to the
Allocation Regulations, to be taken into account in determining
Capital Accounts, 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 item of gain or loss shall be
specially allocated to the Partners in a manner consistent with the
manner in which their Capital Accounts are required to be adjusted
pursuant to the Allocation Regulations.
(v)
Curative Allocation. The special allocations set forth in
Section 5.1(b)(i), (ii) and (iii) (the “Regulatory
Allocations”) are intended to comply with the Allocation
Regulations. Notwithstanding any other provisions of this Section
5.1, the Regulatory Allocations shall be taken into account in
allocating items of income, gain, loss and deduction among the
Partners such that, to the extent possible, the net amount of
allocations of such items and the Regulatory Allocations to each
Partner shall be equal to the net amount that would have been
allocated to each Partner if the Regulatory Allocations had not
occurred.
5.2
Tax Allocations. For federal income tax purposes,
except as otherwise required by the Code, the Allocation
Regulations or the following sentence, each item of Partnership
income, gain, loss, deduction and
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