Exhibit 10.1
AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
KITE REALTY GROUP, L.P.
Dated as of August 16, 2004
TABLE OF CONTENTS
i
ii
EXHIBITS
EXHIBIT A FORM OF PARTNER
REGISTRY
EXHIBIT B CAPITAL ACCOUNT
MAINTENANCE
EXHIBIT C SPECIAL ALLOCATION
RULES
EXHIBIT D NOTICE OF
REDEMPTION
iii
AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
KITE REALTY GROUP, L.P.
THIS AMENDED AND RESTATED AGREEMENT
OF LIMITED PARTNERSHIP, dated as of August 16, 2004, is
entered into by and among Kite Realty Group Trust, a Maryland real
estate investment trust, as the General Partner, and the Persons
whose names are set forth on the Partner Registry (as hereinafter
defined) as Limited Partners, together with any other Persons who
become Partners in the Partnership as provided herein.
WHEREAS, the General Partner and the
Organizational Limited Partner entered into an Agreement of Limited
Partnership of Kite Realty Group, L.P. dated as of March 29,
2004, pursuant to which the Partnership was formed (the
“Original Agreement”);
NOW, THEREFORE, in consideration of
the mutual covenants set forth herein, and for other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree to amend and
restate the Original Agreement in its entirety and agree to
continue the Partnership as a limited partnership under the
Delaware Revised Uniform Limited Partnership Act, as amended from
time to time, as follows:
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 Limited
Partner” means a Person admitted to the Partnership as a
Limited Partner pursuant to Section 12.2 hereof and who is
shown as a Limited Partner on the Partnership Registry.
“Adjusted Capital
Account” means the Capital Account maintained for each
Partner as of the end of each Fiscal Year (i) increased by any
amounts which such Partner is obligated to restore pursuant to any
provision of this Agreement or is deemed to be obligated to restore
pursuant to the penultimate sentences of Regulations Sections
1.704-2(g)(1) and 1.704-2(i)(5) and (ii) decreased by the items
described in Regulations 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). The foregoing
definition of Adjusted Capital Account is intended to comply with
the provisions of Regulations Section 1.704-1(b)(2)(ii)(d) and
shall be interpreted consistently therewith.
“Adjusted Capital Account
Deficit” means, with respect to any Partner, the deficit
balance, if any, in such Partner’s Adjusted Capital Account
as of the end of the relevant Fiscal Year.
1
“Adjusted Property”
means any property the Carrying Value of which has been adjusted
pursuant to Exhibit B.
“Affiliate” means, with
respect to any Person, (i) any Person directly or indirectly
controlling, controlled by or under common control with such
Person, (ii) any Person owning or controlling ten percent (10%) or
more of the outstanding voting interests of such Person, (iii) any
Person of which such Person owns or controls ten percent (10%) or
more of the voting interests or (iv) any officer, director, general
partner or trustee of such Person or any Person referred to in
clauses (i), (ii), and (iii) above. For purposes of this
definition, “control,” when used with respect to any
Person, means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise, and the terms
“controlling” and “controlled” have
meanings correlative to the foregoing.
“Aggregate DRO Amount”
means the aggregate balances of the DRO Amounts, if any, of all DRO
Partners, if any, as determined on the date in question.
“Agreed Value” means (i)
in the case of any Contributed Property, the Section 704(c)
Value of such property as of the time of its contribution to the
Partnership, reduced by any liabilities either assumed by the
Partnership upon such contribution or to which such property is
subject when contributed; and (ii) in the case of any property
distributed to a Partner by the Partnership, the
Partnership’s Carrying Value of such property 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 distribution as determined under
Section 752 of the Code and the regulations
thereunder.
“Agreement” means this
Amended and Restated Agreement of Limited Partnership, as it may be
amended, supplemented or restated from time to time.
“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:
(a)
all cash revenues and funds received
by the Partnership from whatever source (excluding the proceeds of
any Capital Contribution, unless otherwise determined by the
General Partner in its sole and absolute discretion) plus the
amount of any reduction (including, without limitation, a reduction
resulting because the General Partner determines such amounts are
no longer necessary) in reserves of the Partnership, which reserves
are referred to in clause (b)(iv) below;
(b)
less the sum of the following
(except to the extent made with the proceeds of any Capital
Contribution):
(i)
all interest, principal and other
debt payments made during such period by the
Partnership,
2
(ii)
all cash expenditures (including
capital expenditures) made by the Partnership during such
period,
(iii)
investments in any entity (including
loans made thereto) to the extent that such investments are
permitted under this Agreement and are not otherwise described in
clauses (b)(i) or (ii), and
(iv)
the amount of any increase in
reserves established during such period which the General Partner
determines is necessary or appropriate in its sole and absolute
discretion (including any reserves that may be necessary or
appropriate to account for distributions required with respect to
Partnership Interests having a preference over other classes of
Partnership Interests).
Notwithstanding the foregoing, after
commencement of the dissolution and liquidation of the Partnership,
Available Cash shall not include any cash received or reductions in
reserves and shall not take into account any disbursements made or
reserves established.
“Book-Tax Disparities”
means, with respect to any item of Contributed Property or Adjusted
Property, as of the date of any determination, the difference
between the Carrying Value of such Contributed Property or Adjusted
Property and the adjusted basis thereof for federal income tax
purposes as of such date. A Partner’s share of the
Partnership’s Book-Tax Disparities in all of its Contributed
Property and Adjusted Property will be reflected by the difference
between such Partner’s Capital Account balance as maintained
pursuant to Exhibit B and the hypothetical balance of such
Partner’s Capital Account computed as if it had been
maintained strictly in accordance with federal income tax
accounting principles.
“Business Day” means any
day except a Saturday, Sunday or other day on which commercial
banks in Indianapolis, Indiana are authorized or required by law to
close.
“Capital Account” means
the Capital Account maintained for a Partner pursuant to Exhibit B.
The initial Capital Account balance for each Partner who is a
Partner on the date hereof shall be the amount set forth opposite
such Partner’s name on the Partner Registry.
“Capital Contribution”
means, with respect to any Partner, any cash, cash equivalents or
the Agreed Value of Contributed Property which such Partner
contributes or is deemed to contribute to the
Partnership.
“Carrying Value” means
(i) with respect to a Contributed Property or Adjusted Property,
the Section 704(c) Value of such property reduced (but not
below zero) by all Depreciation with respect to such Contributed
Property or Adjusted Property, as the case may be, charged to the
Partners’ Capital Accounts and (ii) 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.
The Carrying Value of any property shall be adjusted from time to
time in accordance with Exhibit B, and to reflect changes,
additions (including capital improvements thereto) or other
adjustments to the Carrying Value for dispositions and acquisitions
of Partnership properties, as deemed appropriate by the General
Partner.
3
“Cash Amount” means an
amount of cash equal to the Value on the Valuation Date of the
Shares Amount.
“Certificate of Limited
Partnership” means the Certificate of Limited Partnership
relating to the Partnership filed in the office of the Delaware
Secretary of State, as amended from time to time in accordance with
the terms hereof and the Act.
“Class A” has the
meaning set forth in Section 5.1.C.
“Class A Share” has the
meaning set forth in Section 5.1.C.
“Class A Unit” means any
Partnership Unit that is not specifically designated by the General
Partner as being of another specified class of Partnership
Units.
“Class B” has the
meaning set forth in Section 5.1.C.
“Class B Share” has the
meaning set forth in Section 5.1.C.
“Class B Unit” means a
Partnership Unit that is specifically designated by the General
Partner as being a Class B Unit.
“Code” means the
Internal Revenue Code of 1986, as amended and in effect from time
to time, 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.
“Consent” means the
consent or approval of a proposed action by a Partner given in
accordance with Article XIV.
“Consent of the Outside
Limited Partners” means the Consent of Limited Partners
(excluding for this purpose (i) any Limited Partnership Interests
held by the General Partner or the General Partner Entity, (ii) any
Person of which the General Partner or the General Partner Entity
directly or indirectly owns or controls more than fifty percent
(50%) of the voting interests and (iii) any Person directly or
indirectly owning or controlling more than fifty percent (50%) of
the outstanding voting interests of the General Partner or the
General Partner Entity) holding Partnership Interests representing
more than fifty percent (50%) of the Percentage Interest of the
Class A Units of all Limited Partners who are not excluded for the
purposes hereof.
“Contributed Property”
means each property or other asset contributed to the Partnership,
in such form as may be permitted by the Act, but excluding cash
contributed or deemed contributed to the Partnership. Once the
Carrying Value of a Contributed Property is adjusted pursuant to
Exhibit B, such property shall no longer constitute a Contributed
Property for purposes of Exhibit B, but shall be deemed an Adjusted
Property for such purposes.
“Conversion Factor”
means 1.0; provided that, if the General Partner Entity (i)
declares or pays a dividend on its outstanding Shares in Shares or
makes a distribution to all holders of its outstanding Shares in
Shares, (ii) subdivides its outstanding Shares or (iii) combines
its outstanding Shares into a smaller number of Shares, the
Conversion Factor shall be adjusted by
4
multiplying the Conversion Factor by a fraction,
the numerator of which shall be the number of Shares issued and
outstanding on the record date for such dividend, distribution,
subdivision or combination (assuming for such purposes that such
dividend, distribution, subdivision or combination has occurred as
of such time) and the denominator of which shall be the actual
number of Shares (determined without the above assumption) issued
and outstanding on the record date for such dividend, distribution,
subdivision or combination; and provided further that if an entity
shall cease to be the General Partner Entity (the
“Predecessor Entity”) and another entity shall become
the General Partner Entity (the “Successor Entity”),
the Conversion Factor shall be adjusted by multiplying the
Conversion Factor by a fraction, the numerator of which is the
Value of one Share of the Predecessor Entity, determined as of the
date when the Successor Entity becomes the General Partner Entity,
and the denominator of which is the Value of one Share of the
Successor Entity, determined as of that same date. (For purposes of
the second proviso in the preceding sentence, if any shareholders
of the Predecessor Entity will receive consideration in connection
with the transaction in which the Successor Entity becomes the
General Partner Entity, the numerator in the fraction described
above for determining the adjustment to the Conversion Factor (that
is, the Value of one Share of the Predecessor Entity) shall be the
sum of the greatest amount of cash and the fair market value (as
determined in good faith by the General Partner) of any securities
and other consideration that the holder of one Share in the
Predecessor Entity could have received in such transaction
(determined without regard to any provisions governing fractional
shares).) Any adjustment to the Conversion Factor shall become
effective immediately after the effective date of the event
retroactive to the record date, if any, for the event giving rise
thereto, it being intended that (x) adjustments to the Conversion
Factor are to be made to avoid unintended dilution or anti-dilution
as a result of transactions in which Shares are issued, redeemed or
exchanged without a corresponding issuance, redemption or exchange
of Partnership Units and (y) if a Specified Redemption Date shall
fall between the record date and the effective date of any event of
the type described above, that the Conversion Factor applicable to
such redemption shall be adjusted to take into account such
event.
“Convertible Funding
Debt” has the meaning set forth in
Section 7.5.F.
“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) obligations of such Person incurred in connection with
entering into a lease which, in accordance with generally accepted
accounting principles, should be capitalized.
“Declaration of Trust”
means the Declaration of Trust relating to the General Partner
filed in the State of Maryland, as amended or restated from time to
time.
“Depreciation”
means, for each fiscal year, an amount equal to the federal income
tax depreciation, amortization, or other cost recovery deduction
allowable with respect to an asset
5
for such year, except that if the Carrying 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 Carrying Value as the federal income tax depreciation,
amortization, or other cost recovery deduction for such year bears
to such beginning adjusted tax basis; provided, however, that if
the federal income tax depreciation, amortization, or other cost
recovery deduction for such year is zero, Depreciation shall be
determined with reference to such beginning Carrying Value using
any reasonable method selected by the General Partner.
“Distribution Period”
has the meaning set forth in Section 5.1.C.
“DRO Amount” means the
amount specified in the DRO Registry with respect to any DRO
Partner, as such DRO Registry may be amended from time to
time.
“DRO Partner” means a
Partner who has agreed in writing to be a DRO Partner and has
agreed and is obligated to make certain contributions, not in
excess of such DRO Partner’s DRO Amount, to the Partnership
with respect to any deficit balance in such Partner’s Capital
Account upon the occurrence of certain events. A DRO Partner who is
obligated to make any such contribution only upon liquidation of
the Partnership shall be designated in the DRO Registry as a Part I
DRO Partner and a DRO Partner who is obligated to make any such
contribution to the Partnership either upon liquidation of the
Partnership or upon liquidation of such DRO Partner’s
Partnership Interest shall be designated in the DRO Registry as a
Part II DRO Partner.
“DRO Registry” means the
DRO Registry maintained by the General Partner in the books and
records of the Partnership containing substantially the same
information as would be necessary to complete the Form of DRO
Registry attached hereto as Exhibit E.
“Exchange Act”
means the Securities Exchange Act of 1934, as amended.
“Fiscal Year” means the
fiscal year of the Partnership, which shall be the calendar year as
provided in Section 9.2.
“Funding Debt” means the
incurrence of any Debt for the purpose of providing funds to the
Partnership by or on behalf of the General Partner Entity, or any
wholly owned subsidiary of either the General Partner or the
General Partner Entity.
“General Partner” means
Kite Realty Group Trust, a Maryland real estate investment trust,
or its successor or permitted assignee, as general partner of the
Partnership.
“General Partner Entity”
means the General Partner; provided, however, that if (i) the
common shares of beneficial interest (or other comparable equity
interests) of the General Partner are at any time not Publicly
Traded and (ii) the common shares of beneficial interest (or other
comparable equity interests) of an entity that owns, directly or
indirectly, fifty percent (50%) or more of the common shares of
beneficial interest (or other comparable equity interests) of the
General Partner are Publicly Traded, the term “General
Partner Entity” shall refer to such entity whose common
shares of beneficial interest (or other comparable equity
securities) are Publicly Traded. If both requirements set forth in
clauses (i) and (ii) above are not satisfied, then the term
“General Partner Entity” shall mean the General
Partner.
6
“General Partnership
Interest” means a Partnership Interest held by the General
Partner that is a general partnership interest. A General
Partnership Interest may be expressed as a number of Partnership
Units.
“General Partner
Payment” has the meaning set forth in Section 15.14
hereof.
“IRS” means the Internal
Revenue Service, which administers the internal revenue laws of the
United States.
“Immediate Family”
means, with respect to any natural Person, such natural
Person’s spouse, parents, descendants, nephews, nieces,
brothers, and sisters.
“Incapacity” or
“Incapacitated” means, (i) as to any individual who is
a Partner, death, total physical disability or entry by a court of
competent jurisdiction adjudicating such Partner incompetent to
manage his or her Person or 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 or limited liability company
which is a Partner, the dissolution and commencement of winding up
of the partnership or limited liability company, (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 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 twenty (120) days after the
commencement thereof, (g) the appointment without the
Partner’s consent or acquiescence of a trustee, receiver of
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 made a party to a proceeding by reason of its status as
(A) the General Partner or the General Partner Entity, (B) a
Limited Partner, or (C) a trustee, director or officer of the
Partnership, the General Partner or the General Partner Entity and
(ii) such other Persons (including Affiliates of the General
Partner or the General Partner Entity, a Limited Partner or the
Partnership) as the General Partner may designate from time to time
(whether before or after the event giving rise to potential
liability), in its sole and absolute discretion.
7
“Limited Partner” means
any Person named as a Limited Partner in the Partner Registry or
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
in the Partnership 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 Event” has
the meaning set forth in Section 13.1.
“Liquidator” has the
meaning set forth in Section 13.2.A.
“Net Income” means, for
any taxable period, the excess, if any, of the Partnership’s
items of income and gain for such taxable period over the
Partnership’s items of loss and deduction for such taxable
period. The items included in the calculation of Net Income shall
be determined in accordance with Exhibit B. If an item of income,
gain, loss or deduction that has been included in the initial
computation of Net Income is subjected to the special allocation
rules in Exhibit C, Net Income or the resulting Net Loss, whichever
the case may be, shall be recomputed without regard to such
item.
“Net Loss” means, for
any taxable period, the excess, if any, of the Partnership’s
items of loss and deduction for such taxable period over the
Partnership’s items of income and gain for such taxable
period. The items included in the calculation of Net Loss shall be
determined in accordance with Exhibit B. If an item of income,
gain, loss or deduction that has been included in the initial
computation of Net Loss is subjected to the special allocation
rules in Exhibit C, Net Loss or the resulting Net Income, whichever
the case may be, shall be recomputed without regard to such
item.
“New Securities” means
(i) any rights, options, warrants or convertible or exchangeable
securities having the right to subscribe for or purchase Shares,
excluding grants under any Share Option Plan, or (ii) any Debt
issued by the General Partner Entity that provides any of the
rights described in clause (i).
“Nonrecourse Built-in
Gain” means, with respect to any Contributed Properties or
Adjusted Properties that are subject to a mortgage or negative
pledge securing a Nonrecourse Liability, the amount of any taxable
gain that would be allocated to the Partners pursuant to
Section 2.B of Exhibit C if such properties were disposed of
in a taxable transaction in full satisfaction of such liabilities
and for no other consideration.
“Nonrecourse Deductions”
has the meaning set forth in Regulations
Section 1.704-2(b)(1), and the amount of Nonrecourse
Deductions for a Fiscal Year shall be determined in accordance with
the rules of Regulations Section 1.704-2(c).
“Nonrecourse Liability”
has the meaning set forth in Regulations
Section 1.752-1(a)(2).
8
“Notice of Redemption”
means a Notice of Redemption substantially in the form of Exhibit
D.
“Organizational Limited
Partner” means Alvin Kite.
“Partner” means the
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).
“Partner Nonrecourse
Debt” has the meaning set forth in Regulations
Section 1.704-2(b)(4).
“Partner Nonrecourse
Deductions” has the meaning set forth in Regulations
Section 1.704-2(i), and the amount of Partner Nonrecourse
Deductions with respect to a Partner Nonrecourse Debt for a Fiscal
Year shall be determined in accordance with the rules of
Regulations Section 1.704-2(i)(2).
“Partner Registry” means
the Partner Registry maintained by the General Partner in the books
and records of the Partnership, which contains substantially the
same information as would be necessary to complete the form of the
Partner Registry attached hereto as Exhibit A.
“Partnership” means the
limited partnership formed under the Act upon the terms and
conditions set forth in the Original Agreement and continued
pursuant to this Agreement, or any successor to such limited
partnership.
“Partnership Interest”
means a Limited Partnership Interest or a General Partnership
Interest 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 Partnership
Interest may be expressed as a number of Partnership
Units.
“Partnership Minimum
Gain” has 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 Fiscal 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 either (i) for the distribution of Available Cash pursuant
to Section 5.1 hereof, which record date shall be the same as
the record date established by the General Partner Entity for a
distribution to its shareholders of some or all of its portion of
such distribution, or (ii) if applicable, for determining the
Partners entitled to vote on or consent to any proposed action for
which the consent or approval of the Partners is sought pursuant to
Section 14.2 hereof.
9
“Partnership Unit” means
a fractional, undivided share of the Partnership Interests of all
Partners issued pursuant to Sections 4.1 and 4.2, and includes
Class A Units, Class B Units, and any other classes or series of
Partnership Units established after the date hereof. The number of
Partnership Units outstanding and the Percentage Interests in the
Partnership represented by such Partnership Units are set forth in
the Partner Registry.
“Percentage Interest”
means, as to a Partner holding a class of Partnership Interests,
its interest in such class, 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. For
purposes of determining the Percentage Interest of the Class A
Units at any time when there are Class B Units outstanding, all
Class B Units shall be treated as Class A Units.
“Person” means a natural
person, partnership (whether general or limited), trust, estate,
association, corporation, limited liability company, unincorporated
organization, custodian, nominee or any other individual or entity
in its own or any representative capacity.
“Predecessor Entity” has
the meaning set forth in the definition of “Conversion
Factor” herein.
“Publicly Traded” means
listed or admitted to trading on the New York Stock Exchange, the
American Stock Exchange or another national securities exchange or
designated for quotation on the NASDAQ National Market, or any
successor to any of the foregoing.
“Qualified Assets” means
any of the following assets: (i) Interests, rights, options,
warrants or convertible or exchangeable securities of the
Partnership; (ii) Debt issued by the Partnership or any Subsidiary
thereof in connection with the incurrence of Funding Debt; (iii)
equity interests in Qualified REIT Subsidiaries and limited
liability companies whose assets consist solely of Qualified
Assets; (iv) up to a one percent (1%) equity interest in any
partnership or limited liability company at least ninety-nine
percent (99%) of the equity of which is owned, directly or
indirectly, by the Partnership; (v) cash held for payment of
administrative expenses or pending distribution to security holders
of the General Partner Entity or any wholly owned Subsidiary
thereof or pending contribution to the Partnership; and (vi) other
tangible and intangible assets that, taken as a whole, are de
minimis in relation to the net assets of the Partnership and its
Subsidiaries.
“Qualified REIT
Subsidiary” means any Subsidiary of the General Partner that
is a “qualified REIT subsidiary” within the meaning of
Section 856(i) of the Code.
“Recapture Income” means
any gain recognized by the Partnership (computed without regard to
any adjustment required by Section 734 or Section 743 of
the Code) upon the disposition of any property or asset of the
Partnership, which gain is characterized either as ordinary income
or as “unrecaptured Section 1250 gain” (as defined
in Section 1(h)(6) of the Code) because it represents the
recapture of depreciation deductions previously taken with respect
to such property or asset.
“Recourse Liabilities”
means the amount of liabilities owed by the Partnership (other than
Nonrecourse Liabilities and liabilities to which Partner
Nonrecourse Deductions are attributable in accordance with
Section 1.704-(2)(i) of the Regulations).
10
“Redeeming Partner” has
the meaning set forth in Section 8.6.A.
“Redemption Amount”
means either the Cash Amount or the Shares Amount, as determined by
the General Partner, in its sole and absolute discretion; provided
that if the Shares are not Publicly Traded at the time a Redeeming
Partner exercises its Redemption Right, the Redemption Amount shall
be paid only in the form of the Cash Amount unless the Redeeming
Partner, in its sole and absolute discretion, consents to payment
of the Redemption Amount in the form of the Shares Amount. A
Redeeming Partner shall have no right, without the General
Partner’s consent, in its sole and absolute discretion, to
receive the Redemption Amount in the form of the Shares
Amount.
“Redemption Right” has
the meaning set forth in Section 8.6.A.
“Regulations” means the
Treasury Regulations promulgated under the Code, as such
regulations may be amended from time to time (including
corresponding provisions of succeeding regulations).
“REIT” means an entity
that qualifies as a real estate investment trust under the
Code.
“REIT Requirements” has
the meaning set forth in Section 5.1.A.
“Residual Gain” or
“Residual Loss” means any item of gain or loss, as the
case may be, of the Partnership recognized for federal income tax
purposes resulting from a sale, exchange or other disposition of
Contributed Property or Adjusted Property, to the extent such item
of gain or loss is not allocated pursuant to Section 2.B.1(a)
or 2.B.2(a) of Exhibit C to eliminate Book-Tax
Disparities.
“Safe Harbor” has the
meaning set forth in Section 11.6.F.
“Securities Act” means
the Securities Act of 1933, as amended.
“Section 704(c)
Value” of any Contributed Property means the fair market
value of such property at the time of contribution as determined by
the General Partner using such reasonable method of valuation as
they may adopt; provided, however, subject to Exhibit B, the
General Partner shall, in its sole and absolute discretion, use
such method as it deems reasonable and appropriate to allocate the
aggregate of the Section 704(c) Value of Contributed
Properties in a single or integrated transaction among each
separate property on a basis proportional to its fair market
values.
“Share” means a share of
beneficial interest (or other comparable equity interest) of the
General Partner Entity. Shares may be issued in one or more classes
or series in accordance with the terms of the Declaration of Trust
(or, if the General Partner is not the General Partner Entity, the
organizational documents of the General Partner Entity). If there
is more than one class or series of Shares, the term
“Shares” shall, as the context requires, be deemed to
refer to the class or series of Shares that corresponds to the
class or series of Partnership Interests for which the reference to
Shares is made. When used with reference to Class A Units, the term
“Shares” refers to common shares of beneficial interest
(or other comparable equity interest) of the General Partner
Entity.
11
“Share Option Plan”
means any equity incentive plan of the General Partner, the General
Partner Entity, the Partnership and/or any Affiliate of the
Partnership.
“Shares Amount” means a
number of Shares equal to the product of the number of Partnership
Units offered for redemption by a Redeeming Partner times the
Conversion Factor; provided that, if the General Partner Entity
issues to holders of Shares securities, rights, options, warrants
or convertible or exchangeable securities entitling such holders to
subscribe for or purchase Shares or any other securities or
property (collectively, the “rights”), then the Shares
Amount shall also include such rights that a holder of that number
of Shares would be entitled to receive unless the Partnership
issues corresponding rights to holders of Partnership
Units.
“Specified Redemption
Date” means the tenth Business Day after receipt by the
General Partner of a Notice of Redemption or such shorter period as
the General Partner, in its sole and absolute discretion may
determine; provided that, if the Shares are not Publicly Traded,
the Specified Redemption Date means the thirtieth Business Day
after receipt by the General Partner of a Notice of
Redemption.
“Subsidiary” means, with
respect to any Person, any corporation, limited liability company,
trust, partnership or 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.
“Substituted Limited
Partner” means a Person who is admitted as a Limited Partner
to the Partnership pursuant to Section 11.4 and who is shown
as a Limited Partner in the Partner Registry.
“Successor Entity” has
the meaning set forth in the definition of “Conversion
Factor” herein.
“Termination
Transaction” has the meaning set forth in
Section 11.2.B.
“Unrealized Gain”
attributable to any item of Partnership property means, as of any
date of determination, the excess, if any, of (i) the fair market
value of such property (as determined under Exhibit B) as of such
date, over (ii) the Carrying Value of such property (prior to any
adjustment to be made pursuant to Exhibit B) as of such
date.
“Unrealized Loss”
attributable to any item of Partnership property means, as of any
date of determination, the excess, if any, of (i) the Carrying
Value of such property (prior to any adjustment to be made pursuant
to Exhibit B) as of such date, over (ii) the fair market value of
such property (as determined under Exhibit B) as of such
date.
“Valuation Date” means
the date of receipt by the General Partner of a Notice of
Redemption or, if such date is not a Business Day, the first
Business Day thereafter.
“Value” means, with
respect to one Share of a class of outstanding Shares of the
General Partner Entity that are Publicly Traded, the average of the
daily market price for the ten consecutive trading days immediately
preceding the date with respect to which value must be determined.
The market price for each such trading day shall be the closing
price, regular way,
12
on such day, or if no such sale takes place on
such day, the average of the closing bid and asked prices on such
day. If the outstanding Shares of the General Partner Entity are
Publicly Traded and the Shares Amount includes, in addition to the
Shares, rights or interests that a holder of Shares has received or
would be entitled to receive, then the Value of such rights shall
be determined by the General Partner acting in good faith on the
basis of such quotations and other information as it considers, in
its reasonable judgment, appropriate. If the Shares of the General
Partner Entity are not Publicly Traded, the Value of the Shares
Amount per Partnership Unit offered for redemption (which will be
the Cash Amount per Partnership Unit offered for redemption payable
pursuant to Section 8.6.A) means the amount that a holder of
one Partnership Unit would receive if each of the assets of the
Partnership were to be sold for its fair market value on the
Specified Redemption Date, the Partnership were to pay all of its
outstanding liabilities, and the remaining proceeds were to be
distributed to the Partners in accordance with the terms of this
Agreement. Such Value shall be determined by the General Partner,
acting in good faith and based upon a commercially reasonable
estimate of the amount that would be realized by the Partnership if
each asset of the Partnership (and each asset of each partnership,
limited liability company, trust, joint venture or other entity in
which the Partnership owns a direct or indirect interest) were sold
to an unrelated purchaser in an arms’ length transaction
where neither the purchaser nor the seller were under economic
compulsion to enter into the transaction (without regard to any
discount in value as a result of the Partnership’s minority
interest in any property or any illiquidity of the
Partnership’s interest in any property).
A.
Organization, Status and
Rights . The
Partnership is a limited partnership organized pursuant to the
provisions of the Act and upon the terms and conditions set forth
in the Original Agreement, as amended by this Agreement. The
Partners hereby confirm and agree to their status as Partners of
the Partnership and to continue the business of the Partnership on
the terms set forth in this Agreement. Immediately after the
admission of an additional Limited Partner, the Organizational
Limited Partner is withdrawing from the Partnership and
relinquishing any and all rights or interest he may have in the
Partnership, and the Partnership is being continued without
dissolution. 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.
B.
Qualification of
Partnership . The
Partners (i) agree that if the laws of any jurisdiction in
which the Partnership transacts business so require, the
appropriate officers or other authorized representatives of the
Partnership shall file, or shall cause to be filed, with the
appropriate office in that jurisdiction, any documents necessary
for the Partnership to qualify to transact business under such
laws; and (ii) agree and obligate themselves to execute,
acknowledge and cause to be filed for record, in the place or
places and manner prescribed by law, any amendments to the
Certificate of Limited Partnership as may be required, either by
the Act, by the laws of any jurisdiction in which the Partnership
transacts business, or by this
13
Agreement, to reflect changes in the information
contained therein or otherwise to comply with the requirements of
law for the continuation, preservation and operation of the
Partnership as a limited partnership under the Act.
C.
Representations
. Each Partner represents and
warrants that such Partner is duly authorized to execute, deliver
and perform its obligations under this Agreement and that the
Person, if any, executing this Agreement on behalf of such Partner
is duly authorized to do so and that this Agreement is binding on
and enforceable against such Partner in accordance with its
terms.
The name of the Partnership is Kite
Realty Group, 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 any 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 change in the next regular
communication to the Limited Partners.
Section 2.3
Registered Office And Agent;
Principal Office
The address of the registered office
of the Partnership in the State of Delaware shall be located at
2711 Centreville Road, Suite 400, Wilmington, Delaware 19808, and
the registered agent for service of process on the Partnership in
the State of Delaware at such registered office shall be
Corporation Service Company. The principal office of the
Partnership shall be 30 South Meridian Street, Suite 1100,
Indianapolis, Indiana 46204, 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.
The term of the Partnership
commenced on March 29, 2004, and shall continue until
dissolved pursuant to the provisions of Article XIII or as
otherwise provided by law.
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; (ii) to enter into any corporation,
partnership, joint venture, trust, limited
14
liability company or other similar arrangement
to engage in any of the foregoing or the ownership of interests in
any entity engaged, directly or indirectly, in any of the
foregoing; and (iii) to do anything necessary or incidental to the
foregoing; provided, however, that any business shall be limited to
and conducted in such a manner as to permit the General Partner
and, if different, the General Partner Entity at all times to be
classified as a REIT, unless the General Partner or General Partner
Entity, as applicable, in its sole and absolute discretion has
chosen to cease to qualify as a REIT or has chosen not to attempt
to qualify as a REIT for any reason or reasons whether or not
related to the business conducted by the Partnership. In connection
with the foregoing, and without limiting the General Partner or the
General Partner Entity’s right, in its sole and absolute self
discretion, to cease qualifying as a REIT, the Partners acknowledge
that the status of the General Partner Entity as a REIT inures to
the benefit of all the Partners and not solely to the General
Partner, the General Partner Entity or their Affiliates.
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, own, manage, improve and
develop real property, and lease, sell, transfer and dispose of
real property; provided, however, that the Partnership shall not
take, or shall refrain from taking, any action which, in the
judgment of the General Partner, in its sole and absolute
discretion, (i) could adversely affect the ability of the General
Partner Entity to continue to qualify as a REIT, (ii) could subject
the General Partner Entity 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 either the General Partner or the General Partner Entity or
its securities, unless such action (or inaction) shall have been
specifically consented to by the General Partner in
writing.
Section 4.1
Capital Contributions Of The
Partners
Prior to the execution of this
Agreement, the Partners have made the Capital Contributions as set
forth in the Partner Registry. On the dater hereof, the Partners
own Partnership Units in the amounts set forth in the Partner
Registry and have Percentage Interests in the Partnership as set
forth in the Partner Registry. The number of Partnership
Units and Percentage Interest shall be adjusted in the Partner
Registry from time to time by the General Partner to the extent
necessary to reflect accurately exchanges, redemptions, Capital
Contributions, the issuance of additional Partnership Units or
similar events having an effect on a Partner’s Percentage
Interest occurring after the date hereof in accordance with the
terms of this Agreement. To the extent the Partnership acquires any
property by the merger of any other
15
Person into the Partnership or any of its
Subsidiaries, Persons who receive Partnership Interests in exchange
for their interests in the Person merging into the Partnership or
any Subsidiary shall become Partners and shall be deemed to have
made Capital Contributions as provided in the applicable merger
agreement and as set forth in the Partner Registry. One thousand
(1,000) Partnership Units shall be deemed to be the General
Partner’s Partnership Units and shall be the General
Partnership Interest of the General Partner. All other Partnership
Units held by the General Partner shall be deemed to be Limited
Partnership Interests and shall be held by the General Partner in
its capacity as a Limited Partner in the Partnership. Except as
provided in Sections 7.5, 10.5, and 13.3 hereof, the Partners shall
have no obligation to make any additional Capital Contributions or
provide any additional funding to the Partnership (whether in the
form of loans, repayments of loans or otherwise). Except as
otherwise set forth in Section 13.3 hereof, no Partner shall
have any obligation to restore any deficit that may exist in its
Capital Account, either upon a liquidation of the Partnership or
otherwise.
Section 4.2
Issuances Of Partnership
Interests
A.
General . The General Partner is hereby authorized to
cause the Partnership from time to time to issue to Partners
(including the General Partner and its Affiliates) or other Persons
(including, without limitation, in connection with the contribution
of property to the Partnership or any of its Subsidiaries)
Partnership Units or other Partnership Interests in one or more
classes, or in 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 one or more other classes of Partnership
Interests, all as shall be determined, subject to applicable
Delaware law, by the General Partner in its sole and absolute
discretion, including, without limitation, (i) the allocations of
items of Partnership income, gain, loss, deduction and credit to
each 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, (iv) the rights, if any, of each such class to
vote on matters that require the vote or Consent of the Limited
Partners, and (v) the consideration, if any, to be received by the
Partnership; provided that no such Partnership Units or other
Partnership Interests shall be issued to the General Partner unless
either (a) the Partnership Interests are issued in connection with
the grant, award or issuance of Shares or other equity interests in
the General Partner having designations, preferences and other
rights such that the economic interests attributable to such Shares
or other equity interests are substantially similar to the
designations, preferences and other rights (except voting rights)
of the Partnership Interests issued to the General Partner in
accordance with this Section 4.2.A or (b) the additional
Partnership Interests are issued to all Partners holding
Partnership Interests in the same class in proportion to their
respective Percentage Interests in such class. If the Partnership
issues Partnership Interests pursuant to this Section 4.2.A,
the General Partner shall make such revisions to this Agreement
(including but not limited to the revisions described in
Section 5.4, Section 6.2 and Section 8.6) as it
deems necessary to reflect the issuance of such Partnership
Interests. The designation of any newly issued class or series of
Partnership Interests may provide a formula for treating such
Partnership Interests solely for purposes of voting on or
consenting to any matter that requires the vote or Consent of the
Limited Partners as set forth in one or more of Sections 7.5.A,
7.11.A, 7.11.B,
16
11.2.B, 13.1(i), 13.1(ii), 13.1(vi), 14.1.A,
14.1.C, 14.2.A, and 14.2.B of this Agreement as the equivalent of a
specified number (including any fraction thereof) of Class A
Units.
B.
Classes of Partnership
Units . From and after
the date of the Agreement, the Partnership shall have two classes
of Partnership Units entitled “Class A Units” and
“Class B Units” and such additional classes of
Partnership Units as may be created by the General Partner pursuant
to Section 4.2.A. Class A Units, Class B Units, or a
class of Partnership Interests created pursuant to
Section 4.2.A, at the election of the General Partner, in its
sole and absolute discretion, may be issued to newly admitted
Partners in exchange for the contribution by such Partners of cash,
real estate partnership interests, stock, notes or other assets or
consideration; provided that any Partnership Unit that is not
specifically designated by the General Partner as being of a
particular class shall be deemed to be a Class A Unit. Each Class B
Unit shall be converted automatically into a Class A Unit on the
day immediately following the Partnership Record Date for the
Distribution Period (as defined in Section 5.1.C) in which
such Class B Unit was issued, without the requirement for any
action by the General Partner, the Partnership or the Partner
holding the Class B Unit.
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) additional Capital Contributions or loans to the
Partnership or (ii) issuance or sale of any Partnership Units or
other Partnership Interests.
Section 4.4
Other Contribution
Provisions
A.
General . If any Partner is admitted to the Partnership
and is given 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 made a
Capital Contribution of such cash to the capital of the
Partnership.
B.
Mergers . To the extent the Partnership acquires any
property (or an indirect interest therein) by the merger of any
other Person into the Partnership or with or into a Subsidiary of
the Partnership in a triangular merger, Persons who receive
Partnership Interests in exchange for their interest in the Person
merging into the Partnership or with or into a Subsidiary of the
Partnership shall become Partners and shall be deemed to have made
Capital Contributions as provided in the applicable merger
agreement (or if not so provided, as determined by the General
Partner in its sole and absolute discretion) and as set forth in
the Partner Registry.
Section 4.5
No Interest On Capital
No Partner shall be entitled to
interest on its Capital Contributions or its Capital
Account.
17
Section 5.1
Requirement And Characterization Of
Distributions
A.
General . The General Partner shall distribute at least
quarterly an amount equal to one hundred percent (100%) of the
Available Cash of the Partnership with respect to such quarter or
shorter period to the Partners in accordance with the terms
established for the class or classes of Partnership Interests held
by such Partners who are Partners on the respective Partnership
Record Date with respect to such quarter or shorter period as
provided in Sections 5.1.B, 5.1.C and 5.1.D and in accordance with
the respective terms established for each class of Partnership
Interest. Notwithstanding anything to the contrary contained
herein, in no event may a Partner receive a distribution of
Available Cash with respect to a Partnership Unit for a quarter or
shorter period if such Partner is entitled to receive a
distribution with respect to a Share for which such Partnership
Unit has been redeemed or exchanged. Unless otherwise expressly
provided for herein, or in the terms established for a new class or
series of Partnership Interests created in accordance with
Article IV hereof, no Partnership Interest shall be entitled
to a distribution in preference to any other Partnership Interest.
The General Partner shall make such reasonable efforts, as
determined by it in its sole and absolute discretion and consistent
with the qualification of the General Partner Entity as a REIT, to
distribute Available Cash (a) to Limited Partners so as to preclude
any such distribution or portion thereof from being treated as part
of a sale of property to the Partnership by a Limited Partner under
Section 707 of the Code or the Regulations thereunder;
provided, that, the General Partner and the Partnership shall not
have liability to a Limited Partner under any circumstances as a
result of any distribution to a Limited Partner being so treated,
and (b) to the General Partner in an amount sufficient to enable
the General Partner Entity to make distributions to its
shareholders that will enable the General Partner Entity to (1)
satisfy the requirements for qualification as a REIT under the Code
and the Regulations (the “REIT Requirements”), and (2)
avoid any federal income or excise tax liability.
B.
Method . (i) Each holder of Partnership Interests
that is entitled to any preference in distribution shall be
entitled to a distribution in accordance with the rights of any
such class of Partnership Interests (and, within such class, pro
rata in proportion to the respective Percentage Interests on such
Partnership Record Date); and
(ii)
To the extent there is Available
Cash remaining after the payment of any preference in distribution
in accordance with the foregoing clause (i), with respect to
Partnership Interests that are not entitled to any preference in
distribution, pro rata to each such class in accordance with the
terms of such class (and, within each such class, pro rata in
proportion to the respective Percentage Interests on such
Partnership Record Date).
C.
Distributions When Class B Units
Are Outstanding . If for
any quarter or shorter period with respect to which a distribution
is to be made (a “Distribution Period”) Class B Units
are outstanding on the Partnership Record Date for such
Distribution Period, the General Partner shall allocate the
Available Cash with respect to such Distribution Period available
for distribution with respect to the Class A Units and Class B
Units collectively between the Partners who are holders of Class A
Units (“Class A”) and the Partners who are holders of
Class B Units (“Class B”) as follows:
18
(1)
Class A shall receive that portion
of the Available Cash (the “Class A Share”) determined
by multiplying the amount of Available Cash by the following
fraction:
