AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT

Exhibit 10.2

AMENDED AND RESTATED

LIMITED PARTNERSHIP AGREEMENT

 

RRP OPERATING, LP

THE UNITS IN RRP OPERATING, LP ARE SUBJECT TO THE RESTRICTIONS ON TRANSFER AND OTHER TERMS AND CONDITIONS SET FORTH IN SECTION 9 OF THIS AGREEMENT AND MAY NOT BE OFFERED FOR SALE, PLEDGED, HYPOTHECATED, SOLD, ASSIGNED, OR TRANSFERRED AT ANY TIME EXCEPT IN COMPLIANCE WITH THE TERMS AND CONDITIONS THEREOF. THEREFORE, PURCHASERS OF THE UNITS WILL BE REQUIRED TO BEAR THE RISK OF THEIR INVESTMENTS FOR AN INDEFINITE PERIOD OF TIME. THE UNITS HAVE NOT BEEN REGISTERED (i) UNDER ANY STATE SECURITIES LAWS (THE “ STATE ACTS ”), (ii) UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “ FEDERAL ACT ”), OR (iii) UNDER THE SECURITIES LAWS OF ANY FOREIGN JURISDICTION (THE “ FOREIGN ACTS ”), AND NEITHER THE UNITS NOR ANY PART THEREOF MAY BE OFFERED FOR SALE, PLEDGED, HYPOTHECATED, SOLD, ASSIGNED, OR TRANSFERRED AT ANY TIME EXCEPT IN COMPLIANCE WITH THE TERMS AND CONDITIONS OF SECTION 9 OF THIS AGREEMENT AND (1) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER ANY APPLICABLE STATE ACTS OR IN A TRANSACTION WHICH IS EXEMPT FROM REGISTRATION UNDER SUCH STATE ACTS OR FOR WHICH SUCH REGISTRATION OTHERWISE IS NOT REQUIRED, (2) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE FEDERAL ACT OR IN A TRANSACTION WHICH IS EXEMPT FROM REGISTRATION UNDER THE FEDERAL ACT OR FOR WHICH SUCH REGISTRATION OTHERWISE IS NOT REQUIRED, AND (3) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER ANY APPLICABLE FOREIGN ACTS OR IN A TRANSACTION WHICH IS EXEMPT FROM REGISTRATION UNDER SUCH FOREIGN ACTS OR FOR WHICH SUCH REGISTRATION OTHERWISE IS NOT REQUIRED.

T ABLE OF C ONTENTS

 

 

- i -

 

- ii -

Exhibits

 

 

- iii -

AMENDED AND RESTATED

LIMITED PARTNERSHIP AGREEMENT

OF

RRP OPERATING, LP

(A Delaware Limited Partnership)

THIS AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT OF RRP OPERATING, LP (this “ Agreement ”) is entered into and shall be effective as of February      , 2007, by and among those Persons who have executed this Agreement or a counterpart hereof, or who become parties hereto pursuant to the terms of this Agreement.

WHEREAS , on December 21, 2006, the General Partner and the Limited Partners entered into that certain Limited Partnership Agreement of RRP Operating, LP (the “ Prior Partnership Agreement ”);

WHEREAS , the parties thereto desire to amend and restate the Prior Partnership Agreement in its entirety pursuant to the terms hereof; and

WHEREAS, this Agreement shall constitute the “partnership agreement” (within the meaning of the Act) of the Partnership, and shall be binding upon all Persons now or at any time hereafter who are Partners.

NOW, THEREFORE, in consideration of the mutual covenants and obligations set forth in this Agreement, and of other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending legally to be bound, hereby agree as follows:

SECTION 1

THE PARTNERSHIP

1.1 Formation . The Partnership was formed as a limited partnership organized pursuant to the provisions of the Act by the filing of a certificate of limited partnership with the Secretary of State of Delaware on November 8, 2006 (the “ Certificate ”).

1.2 Name . The name of the Partnership is “RRP Operating, LP,” and all business of the Partnership shall be conducted in such name or in any other name that is selected by the General Partner. The words “Limited Partnership,” “LP,” “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 may change the name of the Partnership without the approval of any Limited Partner, and may amend the Certificate to give effect to such change in name. The General Partner shall notify the other Partners of any such name change. Upon termination of the Partnership or the termination or withdrawal of RRP Subsidiary REIT, LP as the General Partner, all of the Partnership’s right, title and interest in and to the use of the name “RRP Operating, LP” and any variation thereof, shall become the property of Regency, and if requested to do so by Regency, the Partnership shall change the name of the Partnership to exclude the term “Regency” and any variation thereof. Neither the Partnership nor any Limited Partner shall have any right or interest in and to the use of any such name or mark.

 

- 1 -

1.3 Purposes and Powers . The Partnership shall be 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, but not limited to, the following: (i) invest in Properties, Temporary Investments and other assets which are designed to accomplish the purposes of the Partnership, as described in the Investment Strategy; (ii) act as general or limited partner, member, joint venturer, manager or shareholder of any entity that owns, directly or indirectly, an interest in or manages one or more Properties, and exercise all of the powers, duties, rights and responsibilities associated therewith; (iii) take any and all actions necessary, convenient or appropriate as the holder of any such interests or positions; (iv) make purchase money loans in connection with the sale of Properties, provided, in no event shall the Partnership have outstanding at any time purchase money loans that are, in the aggregate, in excess of fifty million dollars ($50,000,000); (v) operate, purchase, maintain, finance, improve, own, sell, convey, assign, encumber, mortgage, lease, construct, demolish or otherwise dispose of any real property or personal property as may be necessary, convenient or incidental to the accomplishment of the purposes of the Partnership; (vi) subject to the Leverage Policy, borrow money and issue evidences of indebtedness in furtherance of any or all of the purposes of the Partnership, and secure the same by mortgage, pledge or other lien or encumbrance on any assets of the Partnership; (vii) invest any funds of the Partnership pending distribution or payment of the same pursuant to the provisions of this Agreement; (viii) subject to the Leverage Policy, prepay in whole or in part, refinance, recast, increase, modify or extend any indebtedness of the Partnership and, in connection therewith, execute any extensions, renewals or modifications of any mortgage or security agreement securing such indebtedness; (ix) subject to Section 5.14 , enter into, perform and carry out contracts of any kind, including, without limitation, contracts with the General Partner, a Limited Partner or Regency (or an Affiliate of any of the foregoing), necessary to, in connection with, or incidental to the accomplishment of the purposes of the Partnership; (x) establish reserves for capital expenditures, working capital, debt service, taxes, assessments, insurance premiums, repairs, improvements, depreciation, depletion, obsolescence and general maintenance of buildings or other property out of the rents, profits or other income received; (xi) employ or otherwise engage employees, managers, contractors, advisors and consultants, and pay compensation for such services, and enter into employee benefit plans of any type; (xii) purchase or repurchase any or all Units from any Partner for such consideration as the General Partner may determine in its reasonable discretion (whether more or less than the original issuance price of such Units or, subject to Section 5.5(g) , the then Net Asset Value Per Unit); (xiii) effect the registration of the securities of the Partnership, or a subsidiary thereof, under the Securities Act and any other securities laws in connection with an initial public offering; and (xiv) create, and admit as a Limited Partner, any entity that may be necessary, convenient or incidental to the accomplishment of the purposes of the Partnership.

1.4 Principal Place of Business; Registered Agent and Registered Office . The principal place of business of the Partnership shall be located at One Independent Drive, Suite 114, Jacksonville, Florida 32202-5019. The registered agent and registered office, as required by the Act, is the Corporation Service Company, 2711 Centreville Road, Suite 400, City of

 

- 2 -

Wilmington, County of New Castle, Delaware 19808. The General Partner may change the principal place of business, the registered agent or the registered office of the Partnership, in its sole discretion, upon notice to the Partners. The General Partner shall cause the Partnership to maintain a registered agent and registered office as required by the Act.

1.5 Term . The Partnership commenced on the date of the filing of the Certificate and shall continue until it is dissolved pursuant to the provisions of Section 12 or as otherwise provided by law.

1.6 Definitions . Capitalized words and phrases used in this Agreement have the following meanings:

“ Act ” means the Delaware Revised Uniform Limited Partnership Act (Delaware Code Annotated, Title 6, Chapter 17), as amended from time to time (or any corresponding provisions of succeeding law).

“ Acquisition Opportunity ” has the meaning given to it in the Exclusivity Agreement.

“ Additional Capital Amount ” has the meaning given to it in Section 2.2 .

“ Adjusted Capital Account ” means, with respect to any Partner, such Partner’s Capital Account as of the end of the relevant Fiscal Period, after giving effect to the following adjustments:

(i) Add to such Capital Account any amounts that such Partner 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) Subtract from such Capital Account the items described in Sections 1.704-1(b)(2)(ii)(d)(4), (5) and (6) of the 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 Regulations and shall be interpreted consistently therewith.

“ Advisory Council ” has the meaning given to it in Section 5.3(a) .

“ Affiliate ” means, with respect to a specified Person, any Person that, directly or indirectly through one or more intermediaries, controls, is controlled by or is under common control with the specified Person. For this purpose, (i) the term “control” (including, without limitation, the terms “controlling,” “controlled by” and “under common control with”) shall mean the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise, and (ii) neither Regency nor any of its Affiliates shall be deemed to be an Affiliate of any Fund Entity (for avoidance of doubt, any Fund Entity is an Affiliate of any other Fund Entity).

 

- 3 -

“ Agreement ” means this Amended and Restated Limited Partnership Agreement, as amended from time to time. Words such as “herein,” “hereinafter,” “hereof,” “hereto” and “hereunder,” refer to this Agreement as a whole, unless the context otherwise requires.

“ Allocation Policy ” has the meaning given to it in Section 5.11 .

“ Business Day ” means any day other than a Saturday, Sunday, or a day on which banking institutions in New York City, New York are authorized or obligated by law or executive order to be closed.

“ Capital Account ” means, with respect to any Partner, the capital account maintained for such Partner in accordance with the following provisions:

(i) To each Partner’s Capital Account there shall be added such Partner’s Capital Contributions, including any amounts deemed contributed by such Partner as a result of a distribution reinvestment under Section 4.2 hereof, Profits allocated to such Partner under Section 3.1(a) and any items in the nature of income or gain that are specially allocated to such Partner pursuant to Section 3.2 , 3.3 or 3.7 hereof, and the amount of any Partnership liabilities assumed by such Partner or that are secured by any Partnership property distributed to such Partner;

(ii) From each Partner’s Capital Account there shall be subtracted the amount of money and the Gross Asset Value of any property other than money distributed to such Partner pursuant to any provision of this Agreement (including any amounts deemed distributed to and reinvested by such Partner under Section 4.2 ), Losses allocated to such Partner under Section 3.1(b) and any items in the nature of expenses or losses that are specially allocated to such Partner pursuant to Section 3.2 , 3.3 or 3.7 hereof, and the amount of any liabilities of such Partner assumed by the Partnership or that are secured by any property contributed by such Partner to the Partnership (except to the extent such liabilities already have been taken into account in determining such Partner’s Capital Contributions);

(iii) In the event any Units are transferred in accordance with the terms of this Agreement, the transferee shall succeed to the Capital Account of the transferor to the extent it relates to the transferred Units; and

(iv) In determining the amount of any liability for purposes of the foregoing clauses (i) and (ii) of this definition of Capital Account, there shall be taken into account Code Section 752(c) and any other applicable provisions of the Code and Regulations.

The foregoing provisions and the other provisions of this Agreement relating to the maintenance of Capital Accounts are intended to comply with Regulations Section 1.704-1(b) and shall be interpreted and applied in a manner consistent with such Regulations. In the event the General Partner determines that it is prudent to modify the manner in which the Capital Accounts, or any additions or subtractions thereto, are computed in order to comply with such Regulations, the General Partner may make such modification. The General Partner also shall

 

- 4 -

(i) make any adjustments that are necessary or appropriate to maintain equality between the Capital Accounts of the Partners and the amount of Partnership capital reflected on the Partnership’s balance sheet, as computed for book purposes, in accordance with Regulations Section 1.704-1(b)(2)(iv)(g), and (ii) make any appropriate modifications in the event unanticipated events might otherwise cause this Agreement not to comply with Regulations Section 1.704-1(b).

“ Capital Amount Proportion ” has the meaning given to it in Section 2.2 .

“ Capital Call Notice ” has the meaning given to it in Section 2.2

“ Capital Contribution ” means, with respect to any Partner, the amount of cash or cash equivalents, and the fair market value of any Property determined pursuant to the Exclusivity Agreement (net of liabilities secured by such Property that the Partnership is considered to assume or take subject to under Code Section 752) actually contributed to the Partnership by such Partner as of the time the determination is made, which such Partner contributes or is deemed to have contributed to the Partnership pursuant to Section 2.1 , 2.2 or 2.3 hereof.

“ Capital Contribution Percentage ” means, with respect to any Fund Limited Partner, a fraction expressed as a percentage, the numerator of which is such Fund Limited Partner’s Unfunded Capital Commitment and the denominator of which is the sum of the Unfunded Capital Commitments of all Fund Limited Partners.

“ Cash Flow ” for any period means the sum of (a) all amounts of money received in the business of the Partnership, plus (b) all amounts of money received by the Partnership from the sale or other disposition of all or any portion of the Properties, plus (c) all income from Temporary Investments for such period, plus (d) net proceeds of any financing, plus (e) decreases in reserves to the extent not used to pay Operating Expenses, minus (f) all Operating Expenses.

“ Certificate ” has the meaning given to it in Section 1.1 .

“ Closing Costs Cap ” means 1.45% of the Gross Contribution Value (as defined in the Exclusivity Agreement) of a Development Asset to be acquired pursuant to the Exclusivity Agreement (but without duplication of closing and financing costs).

“ Code ” means the Internal Revenue Code of 1986, as amended from time to time (or any corresponding provisions of succeeding law).

“ Common Unit ” means a unit of partnership interest issued pursuant to Section 2.1 , 2.3 or 4.2 , with the rights, powers and duties set forth herein. The number of Common Units owned by each Partner shall be set forth on Exhibit A .

“ Confidential Information ” has the meaning given to it in Section 13.15(a) .

“ Depreciation” means, for each Fiscal Period, an amount equal to the depreciation, amortization, or other cost recovery deduction allowable for federal income tax purposes with respect to an asset for such Fiscal Period, except that (i) with respect to any asset the Gross Asset

 

- 5 -

Value of which differs from its adjusted tax basis for federal income tax purposes at the beginning of such Fiscal Period and which difference is being eliminated by use of the “remedial method” as defined by Section 1.704-3(d) of the Regulations, Depreciation for such Fiscal Period shall be the amount of book basis recovered for such Fiscal Period under the rules prescribed by Section 1.704-3(d)(2) of the Regulations, and (ii) with respect to any other asset the Gross Asset Value of which differs from its adjusted tax basis for federal income tax purposes at the beginning of such Fiscal Period, Depreciation shall be an amount which bears the same ratio to such beginning Gross Asset Value as the federal income tax depreciation, amortization, or other cost recovery deduction for such Fiscal Period bears to such beginning adjusted tax basis; provided, that in the case of clause (ii) above, if the adjusted tax basis for federal income tax purposes of an asset at the beginning of such Fiscal Period is zero, Depreciation shall be determined with reference to such beginning Gross Asset Value using any reasonable method selected by the General Partner.

“ Designated Properties ” has the meaning given to it in Section 12.4(c) .

“ Development Asset ” has the meaning given to it in the Exclusivity Agreement.

“ Disabling Conduct ” has the meaning given to it in Section 11.3 .

“ Established Net Value ” means, with respect to any Property, the gross fair market value ascribed to such Property in an appraisal conducted by an Independent Valuation Firm, reduced, but not below zero, by the amount of (without duplication) (i) all indebtedness and other liabilities secured solely by such Property, (ii) all non-recourse liabilities to which such Property is subject, (iii) the portion of any indebtedness secured by such Property and other Properties allocated to such Property in good faith by the Regency Partner, and (iv) a portion of any unsecured indebtedness or other liabilities of the Partnership allocated to such Property in good faith by the Regency Partner, in each case adjusted to reflect the cost or value of any above- or below- market indebtedness. The Established Net Value is determined by the Regency Partner, subject to the approval of the Independent Valuation Firm, pursuant to Section 12.4 .

“ Exclusivity Agreement ” has the meaning given to it in Section 5.9 .

“ Exculpated Person ” has the meaning given to it in Section 11.3 .

“ Exercise Period ” has the meaning given to it in Section 12.3 .

“ Federal Act ” has the meaning given to it in the Legend.

“ Feeder Partnership ” or “ Feeder Partnerships ” means one or more limited partnerships which own Subsidiary REIT Common Shares. The Parent REIT shall not be considered a Feeder Partnership.

“ Fiscal Period ” means the fiscal year of the Partnership. The first Fiscal Period shall commence on the date hereof and each succeeding Fiscal Period shall commence on the day immediately following the last day of the immediately preceding Fiscal Period. Each Fiscal Period shall end on the earliest to occur after the commencement of such Fiscal Period of

 

- 6 -

(i) December 31, or (ii) the date on which the Partnership is liquidated within the meaning of Regulations Section 1.704-1(b)(2)(ii)(g). To the extent any computation or other provision of the Agreement provides for an action to be taken on a Fiscal Period basis, an appropriate pro ration or other adjustment shall be made in respect of the initial and final Fiscal Periods to reflect that such periods are less than full calendar year periods.

“ FOIA ” has the meaning given to it in Section 13.15(b) .

“ For Cause Termination Event ” means, with respect to the general partner of the Fund Partnership as general partner of the Fund Partnership (including acts or omissions performed or failed to be performed by the general partner on behalf of the Fund Partnership in the Fund Partnership’s capacity as a shareholder of the Parent REIT or as a limited partner of the Subsidiary REIT), the general partner of the Subsidiary REIT as general partner of the Subsidiary REIT (including, in turn, acts or omissions it causes the Subsidiary REIT to take or fail to take as general partner of the Partnership) or any other Fund General Partner in its capacity as the general partner of a Feeder Partnership (i) gross negligence in the management of such entity or entities which has a material adverse effect on the entity or entities, (ii) fraud or willful misconduct with respect to such entity or entities, (iii) material breach of a Fund Governing Document, in the event that such material breach is not cured within ten (10) Business Days after receipt by the respective general partner of written notice of such material breach from Fund Limited Partners who collectively hold at least five percent (5%) of the outstanding Fund Limited Partner Units or (iv) the occurrence of any For Cause Termination Event by any other Fund General Partner that is an Affiliate of Regency.

“ Foreign Acts ” has the meaning given to it in the Legend.

“ Fund ” means the total investment structure composed of the Fund Partnership, the Parent REIT, the Subsidiary REIT, the Feeder Partnerships, the Partnership and Subsidiaries of the Partnership.

“ Fund Capital Commitment ” means, with respect to any Fund Limited Partner, the amount of money required to be contributed to the respective Participating Partnership in which such Fund Limited Partner is a limited partner by such Fund Limited Partner, as set forth in such Fund Limited Partner’s subscription agreement delivered to such Participating Partnership.

“ Fund Entities ” means the Partnership, the Parent REIT, the Subsidiary REIT, the Feeder Partnerships, the Fund Partnership and Subsidiaries of the Partnership.

“ Fund General Partners ” means the general partner of the Fund Partnership, the general partner of the Subsidiary REIT and the general partner in each Feeder Partnership, all of which shall be Regency Retail GP, LLC or another Affiliate of Regency, unless one or more of the Fund General Partners is removed by a vote of the Fund Limited Partners.

“ Fund Governing Documents ” means this Agreement, the Parent REIT Charter, the Subsidiary REIT Charter, the Fund Partnership Agreement, the limited partnership agreements of the Feeder Partnerships and the Umbrella Agreement.

 

- 7 -

“ Fund Indebtedness ” has the meaning given to it in Exhibit D .

“ Fund Limited Partners ” means the limited partners in the Fund Partnership (other than the Regency Partner or any Affiliate of the Regency Partner) and the limited partners in the Feeder Partnerships (other than the Regency Partner or any Affiliate of the Regency Partner).

“ Fund Limited Partner Units ” means (i) the outstanding units in the Fund Partnership held by limited partners (other than the Regency Partner or any Affiliate of the Regency Partner) and (ii) the outstanding units in the Feeder Partnerships held by limited partners (other than the Regency Partner or any Affiliate of the Regency Partner).

“ Fund Partnership ” means Regency Retail Partners, LP, a Delaware limited partnership.

“ Fund Partnership Agreement ” means the Limited Partnership Agreement of Regency Retail Partners, LP, as such agreement may be amended in accordance with its terms from time to time.

“ GAAP ” means generally accepted accounting principles applicable in the United States from time to time.

“ General Partner ” means the Subsidiary REIT.

“ Gross Asset Value ” means, with respect to any asset, the asset’s adjusted basis for federal income tax purposes, except as follows:

(i) The initial Gross Asset Value of any asset contributed by a Partner to the Partnership shall be the gross fair market value of such asset, as determined pursuant to the Exclusivity Agreement;

(ii) The Gross Asset Values of all Partnership assets shall be adjusted to equal their respective gross fair market values, as determined by the General Partner, as of the following times: (a) the acquisition of an additional interest in the Partnership by any new or existing Partner in exchange for more than a de minimis Capital Contribution; (b) the distribution by the Partnership to a Partner of more than a de minimis amount of money or other property as consideration for an interest in the Partnership; and (c) the liquidation of the Partnership within the meaning of Regulations Section 1.704-1(b)(2)(ii)(g); provided, however, that adjustments pursuant to clauses (a) and (b) above shall be made only if the General Partner reasonably determines that such adjustments are necessary or appropriate to reflect the relative economic interests of the Partner in the Partnership;

(iii) The Gross Asset Value of any Partnership asset distributed to any Partner shall be adjusted to equal the gross fair market value of such asset on the date of distribution as determined by the General Partner; and

(iv) The Gross Asset Values of Partnership assets shall be increased (or decreased) to reflect any adjustments to the adjusted basis of such assets pursuant to Code

 

- 8 -

Section 734(b) or Code Section 743(b), but only to the extent that such adjustments are taken into account in determining Capital Accounts pursuant to Regulation Section 1.704-1(b)(2)(iv)(m) and part (iv) of this definition and Section 3.2(b) hereof; provided, however, that Gross Asset Values shall not be adjusted pursuant to this part (iv) to the extent the General Partner determines that an adjustment pursuant to part (ii) above is necessary or appropriate in connection with a transaction that would otherwise result in an adjustment pursuant to this part (iv).

If the Gross Asset Value of an asset has been adjusted pursuant to part (i), (ii) or (iii) of this definition, such Gross Asset Value shall thereafter be adjusted by the Depreciation taken into account with respect to such asset for purposes of computing Profits and Losses. For purposes of part (ii) of this definition, the gross fair market value of the Partnership’s assets shall be determined in a manner consistent with clause (x) of the definition of Net Asset Value; provided, however , that the gross fair market value of the Partnership’s assets at the time of an adjustment resulting from a distribution to the Regency Partner under Section 12.4 shall be equal to the gross fair market value of the asset as determined pursuant to the definition of Established Net Value.

“ In-Kind Distribution ” has the meaning given to it in Section 12.4(a) .

“ In-Kind Distribution Consultant ” has the meaning given to it in Section 12.4(b) .

“ In-Kind Distribution Costs ” has the meaning given to it in Section 12.4(c) .

“ In-Kind Redemption Units ” has the meaning given to it in Section 12.4(a) .

“ In-Kind Redemption Price ” has the meaning given to it in Section 12.4(a) .

“ Incapacity ” or “ Incapacitated ” means, (i) as to any individual Partner, death, total physical disability or entry by a court of competent jurisdiction adjudicating him or her incompetent to manage his or her Person or estate; (ii) as to any corporation which is a Partner, the filing of a certificate of dissolution, or its equivalent, for the corporation or the revocation of its charter; (iii) as to any partnership which is a Partner, the dissolution and commencement of winding up of the partnership; (iv) as to any limited liability company which is a Partner, the dissolution and commencement of winding up of the limited liability company; (v) as to any estate which is a Partner, the distribution by the fiduciary of the estate’s entire interest in the Partnership; (vi) 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 (vii) 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

 

- 9 -

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 of or against such Partner 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 or liquidator has not been vacated or stayed within ninety (90) days of such appointment; or (h) an appointment referred to in clause (g) which has been stayed is not vacated within ninety (90) days after the expiration of any such stay.

“ Independent Valuation Firm ” has the meaning given to it in the Valuation Policy.

“ Initial Closing ” has the meaning given to it in the Fund Partnership Agreement.

“ Initial Investment Period ” has the meaning given to it in the Fund Partnership Agreement.

“ Initial Offering Period ” has the meaning given to it in the Fund Partnership Agreement.

“ Investment Strategy ” means the Fund’s investment strategy as set forth in the Private Placement Memorandum as of the date of the Initial Closing, as it may be changed with the approval of the Advisory Council pursuant to Section 5.4(a) .

“ Leverage Policy ” has the meaning given to it in Section 5.12 .

“ Limited Partners ” means all Partners except the General Partner.

“ Liquidating Event ” has the meaning given to it in Section 12.1 .

“ Liquidation Preference ” has the meaning given to it in Section 12.2(a)(ii) .

“ Liquidation Value ” has the meaning given to it in Section 12.4(b) .

“ Liquidating Trustee ” has the meaning given to it in Section 12.2(a) .

“ Market Rates ” has the meaning given to it in Section 5.14 .

“ Net Asset Value ” means the Partnership’s net asset value, as determined by the General Partner as of the last day of the most recent calendar quarter and at such other times as required in this Agreement (x) with the asset value to be based on (i) the aggregate value of the Partnership’s Properties in accordance with the Valuation Policy or prior to valuation, the initial costs of such Properties, and updates to the valuations obtained by the Partnership, (ii) additions to the valuations or updates (or cost calculations) described in clause (i) to reflect capital expenditures made subsequent to the date of such valuations or updates (or cost calculations), if appropriate, and (iii) the carrying value under GAAP of all other Partnership assets and liabilities, including intangibles, provided that, for this purpose intangibles shall include only closing and acquisition costs incurred by the Fund in acquiring Properties (provided such costs

 

- 10 -

are not included in clause (i) hereof), unamortized leasing commissions and tenant improvements (provided such costs are not included in clause (i) hereof) and unamortized loan fees and expenses incurred by the Fund in financing or refinancing Fund Indebtedness; and (y) less the amount of all funded indebtedness of the Partnership; provided , however , that with respect to indebtedness of the Partnership, such indebtedness shall be carried at its outstanding principal balance. Organizational and Offering Expenses incurred in connection with funds raised during the Initial Offering Period shall be capitalized and amortized over a period of twelve (12) calendar quarters (beginning with the quarter in which the Initial Closing occurs) for the purposes of determining Net Asset Value, and shall be included in the “intangibles” described in clause (x)(iii) of the previous sentence. Where this Agreement or any other Fund Governing Document specifies any date for the calculation of Net Asset Value other than the last day of a calendar quarter, the Net Asset Value as of such date shall be equal to the Net Asset Value as of the last day of the most recent calendar quarter with such adjustments to the items specified in clauses (x)(ii), (x)(iii) and (y), above, to reflect material changes to such items as of the last day of the most recent calendar month.

“ Net Asset Value Per Unit ” means, as of any date, for a Common Unit (x) Net Asset Value as of such date, less (i) $1,000 multiplied by the number of Preferred Units outstanding as of such date, (ii) the value of the Preferred Return Account, and (iii) the value of the Preferred REIT Maintenance Account, divided by (y) the number of Common Units outstanding. Where this Agreement or any other Fund Governing Document specifies any date for the calculation of Net Asset Value Per Unit other than the last day of a calendar quarter, the Net Asset Value Per Unit as of such date shall be calculated based upon (a) the Net Asset Value as of such date as determined in accordance with the last sentence of the definition of Net Asset Value and (b) the items specified in clauses (x)(i), (x)(ii), (x)(iii) and (y) in this definition of Net Asset Value Per Unit determined as of the last day of the most recent calendar month.

“ Offer ” has the meaning given to it in Section 12.3 .

“ One Portfolio Policy ” has the meaning given to it in Section 5.10 .

“ OP Redemption Notice ” has the meaning given to it in Section 9.2(a) .

“ OP Redemption Notice Effective Date ” has the meaning given to it in Section 9.2(a) .

“ Operating Expenses ” means all expenses reasonably incurred by the General Partner, the Partnership or other Persons authorized to act on the Partnership’s behalf in connection with the operation of the Partnership, including, without limitation: (i) fees and expenses of custodians, transfer agents, trustees and paying agents; (ii) audit, legal, accounting and appraisal fees, and other consultants’ fees; (iii) brokers’ commissions incurred in connection with the purchase, sale, leasing or financing of Properties; (iv) taxes and assessments; (v) any fees and expenses payable to independent contractors and subcontractors in connection with the actual or prospective acquisition, financing, management or disposition of a Property by the Partnership (including property managers, leasing companies, engineers, advisors, consultants and other experts engaged by the General Partner on behalf of the Partnership); (vi) expenses of making distributions to holders of Common Units and Preferred Units, and reinvesting any such

 

- 11 -

distributions pursuant to a reinvestment plan, including the cost of engaging a third party administrator for such plans; (vii) all reasonable out of pocket third party costs and expenses connected with the actual or prospective acquisition, disposition, financing, improvement, management, maintenance, operation, repair, leasing and ownership of Properties, including the Properties comprising the Initial Test Assets (as defined in the Exclusivity Agreement), and other assets of the Partnership, and any legal and closing costs connected therewith; and (viii) premiums for such insurance as the General Partner deems appropriate or necessary.

“ Organizational and Offering Expenses ” means all legal, accounting, printing, travel and other expenses reasonably incurred by the Fund Entities or other Persons authorized to act on the Fund’s behalf in connection with (i) the formation of the Fund Entities, (ii) the preparation of the Private Placement Memorandum provided to the Fund Limited Partners, including any supplements thereto, (iii) the qualification for the exemption of the offer and sale of common units, preferred units and shares from registration under Federal and state securities laws or the securities laws of foreign jurisdictions and (iv) the private placement and sale of Fund Limited Partner Units; provided, however, that no placement fees or similar fees paid to any Person with respect to obtaining or soliciting subscriptions for Fund Limited Partner Units at any closing shall be included in Organizational and Offering Expenses.

“ Ownership Restricted Partner ” has the meaning given to it in Section 9.2(b) .

“ Parent REIT ” means RRP Parent REIT, Inc., a Maryland corporation.

“ Parent REIT Charter ” means the Articles of Incorporation of RRP Parent REIT, Inc., as such agreement may be amended in accordance with its terms from time to time.

“ Parent REIT Preferred Share ” means a preferred share in the Parent REIT.

“ Participating Partnerships ” means the Fund Partnership and the Feeder Partnerships.

“ Partner ” means a Person who has executed a counterpart of this Agreement, so long as such Person has not ceased to be a partner of the Partnership pursuant to the terms of this Agreement, and any Person that becomes a substituted partner of the Partnership pursuant to the terms of this Agreement and has not ceased to be a partner of the Partnership pursuant to the terms of this Agreement. “ Partners ” means all such Persons. The Partners shall be identified on Exhibit A attached hereto, which may be modified, supplemented, or amended from time to time.

“ Partnership ” means RRP Operating, LP, a Delaware limited partnership.

“ Percentage Interest ” means, as to a Partner, its interest in the Partnership as determined by dividing the number of Common Units owned by such Partner by the total number of Common Units then outstanding.

“ Person ” means an individual, corporation, limited liability company, partnership, estate, trust (or portion thereof), association, joint stock company, government agency or political subdivision thereof, charitable organization, or other entity.

 

- 12 -

“ Plan ” has the meaning given to it in Section 4.2(a) .

“ Portfolio Test ” has the meaning given to it in the Exclusivity Agreement.

“ Preferred REIT Maintenance Account ” means, with respect to each of the Parent REIT and the Subsidiary REIT, as of any relevant date after the issuance of the Preferred Units, the excess, if any, of (a) the accrued expenses of such entity relating to (i) the issuance of the Parent REIT Preferred Shares or Subsidiary REIT Preferred Shares by such entity and any ongoing administrative or other costs relating to such Parent REIT Preferred Shares or Subsidiary REIT Preferred Shares, including, without limitation, any redemption premiums due with respect to such shares (to the extent not paid pursuant to Section 9.3 ) and any amounts due to REIT Funding, LLC, REIT Administration, LLC, H & L Equities, LLC or their affiliates with respect to such shares (but excluding any repayment of the consideration received by such entity in exchange for the issuance of such shares) and (ii) any other administrative costs of such entity, including, but not limited to, tax return preparation and audit, accounting, and investor communication costs, over (b) the sum of the cumulative distributions made to such entity prior to such relevant date pursuant to Section 4.1(b) (including distributions received by such entity pursuant to Section 4.1(b) by reason of Section 12.2(a)(ii) hereof) and clause (d) of Section 9.3 .

“ Preferred Redemption Date ” has the meaning given to it in Section 9.3 .

“ Preferred Return Account ” means, with respect to each of the Parent REIT and the Subsidiary REIT as of any relevant date after the issuance of the Preferred Units, the excess, if any, of (a) an amount equal to a return computed like interest accruing on a daily basis from and including the date that the Preferred Units are issued hereunder at the rate of twelve and one half percent (12.5%) per annum on the sum of (x) the product of $1,000 and the number of Preferred Units held by each of Parent REIT and the Subsidiary REIT on each day of a relevant period, plus (y) all accumulated, accrued and unpaid distributions thereon, from and including the date hereof over (b) the sum of cumulative distributions made to such entity prior to such relevant date pursuant to Section 4.1(a) (including distributions received by such entity pursuant to Section 4.1(a) by reason of Section 12.2(a)(ii) hereof) and clause (c) of Section 9.3 .

“ Preferred Unit ” means a fractional, undivided share of the partnership interests issued pursuant to Section 2.1(b) with the rights, powers and duties set forth in Section 2.1(b) , which will be issued at such time as the Parent REIT and the Subsidiary REIT issue Parent REIT Preferred Shares and Subsidiary REIT Preferred Shares and will be designated as such on Exhibit A and expressed in the number set forth on Exhibit A , as such exhibit may be amended from time to time.

“ Prior Partnership Agreement ” has the meaning given to it in the Recitals.

“ Private Placement Memorandum ” means the Fund’s Confidential Private Placement Memorandum, as amended, modified, or supplemented from time to time.

“ Profits ” and “ Losses ” means, for any Fiscal Period, an amount equal to the Partnership’s taxable income or loss for such period, determined in accordance with Code Section 703(a) (for

 

- 13 -

this purpose, all items of income, gain, loss, or deduction required to be stated separately pursuant to Code Section 703(a)(1) shall be included in taxable income or loss), with the following adjustments:

(i) Any income of the Partnership that is exempt from federal income tax and not otherwise taken into account in computing Profits or Losses pursuant to this definition shall be added to such taxable income or loss;

(ii) Any expenditures of the Partnership described in Code Section 705(a)(2)(B) or treated as Code Section 705(a)(2)(B) expenditures pursuant to Regulations Section 1.704-1(b)(2)(iv)( i ), and not otherwise taken into account in computing Profits or Losses pursuant to this definition shall be subtracted from such taxable income or loss;

(iii) If the Gross Asset Value of any Partnership asset is adjusted pursuant to part (ii) of the definition of Gross Asset Value, the amount of such adjustment shall be taken into account as gain or loss from the disposition of such asset for purposes of computing Profits or Losses;

(iv) Gain or loss resulting from any disposition of property with respect to which gain or loss is recognized for federal income tax purposes shall be computed by reference to the Gross Asset Value of the property disposed of, notwithstanding that the adjusted tax basis of such property differs from its Gross Asset Value;

(v) In lieu of the depreciation, amortization, and other cost recovery deductions taken into account in computing taxable income or loss, there shall be taken into account Depreciation for such period;

(vi) To the extent an adjustment to the adjusted tax basis of any Partnership asset pursuant to Code Section 734(b) or Code Section 743(b) is required pursuant to Regulations Section 1.704-1(b)(2)(iv)( m )( 4 ) to be taken into account in determining Capital Accounts as a result of a distribution other than in liquidation of a Partner’s Interest, the amount of such adjustment shall be treated as an item of gain (if the adjustment increases the basis of the asset) or loss (if the adjustment decreases the basis of the asset) from the disposition of the asset and shall be taken into account for purposes of computing Profits or Losses; and

(vii) Any items that are specially allocated pursuant to Section 3.2 or Section 3.3 shall be excluded in computing Profits or Losses.

If for any Fiscal Period the sum of such items is a positive amount, such amount shall be deemed Profits for such Fiscal Period, and if the sum of such items is a negative amount, such amount shall be deemed Losses for such Fiscal Period.

“ Property ” means any direct or indirect interest in real or personal property, including without limitation, a fee interest, an interest in a ground lease or an interest in a joint venture or a partnership that the Partnership may own or hold from time to time or any purchase money loan held by the Partnership from time to time.

 

- 14 -

“ Qualifying Center ” has the meaning given to it in the Exclusivity Agreement.

“ Redemption Date ” has the meaning given to it in Section 9.2(g) .

“ Redemption Premium ” means a redemption premium per Preferred Unit, payable pursuant to Section 9.3 or Section 12.2(a)(ii) calculated as follows based on the date of the redemption or Liquidating Event, as applicable: (1) until December 31, 2008, $200; (2) from January 1, 2009 to December 31, 2009, $150; (3) from January 1, 2010 to December 31, 2010, $100; (4) from January 1, 2011 to December 31, 2011, $50 and thereafter, no Redemption Premium.

“ Redemption Right ” has the meaning given to it in Section 9.2(a) .

“ Regency ” means Regency Centers, L.P., a Delaware limited partnership.

“ Regency Interests ” means all economic ownership interests in the Partnership, the Feeder Partnerships and the Fund Partnership held by the Regency Partner in exchange for which the Regency Partner contributed cash or property resulting in the issuance of Common Units either issued directly to the Regency Partner or to a Fund Entity through which the Regency Partner holds beneficial ownership to such Common Units (such as Common Units held by the Parent REIT and the Subsidiary REIT which the Regency Partner beneficially owns through a Participating Partnership). Regency Interests shall include, without limitation, any of the following held by the Regency Partner: (i) units in the Fund Partnership, (ii) any partnership interests in any Feeder Partnership, and (iii) any limited partnership interests in Partnership. The Regency Interests shall only be held by the Regency Partner, and may not be Transferred, except in connection with a Transfer pursuant to Section 9.1 .

“ Regency Investment Percentage ” means, as of any date, the quotient obtained by dividing (i) the number of Common Units that Regency and its Affiliates own, either directly or beneficially, through ownership of the Regency Interests by (ii) the total number of outstanding Common Units.

“ Regency Partner ” means Regency Retail GP, LLC, a Delaware limited liability company, in its capacity as a limited partner.

“ Regency Required Investment ” has the meaning given to it in Section 2.4 .

“ Regulations ” means the Income Tax Regulations, including Temporary Regulations, promulgated under the Code as such regulations may be amended from time to time (including corresponding provisions of succeeding regulations).

“ Regulatory Allocations ” has the meaning given to it in Section 3 .

“ Reinvestment Proceeds ” has the meaning given to it in Section 4.2 .

 

- 15 -

“ REIT ” means “real estate investment trust,” as such term is defined in Section 856 of the Code.

“ Right of First Refusal ” has the meaning given to it in Section 12.3 .

“ ROFR Notice ” has the meaning given to it in Section 12.3 .

“ State Acts ” has the meaning given to it in the Legend.

“ Subject Property ” has the meaning given to it in Section 12.3 .

“ Subsidiary ” means, with respect to any Person, any other Person of which fifty percent (50%) or more of (i) the voting power, or (ii) the outstanding equity interests, is owned, directly or indirectly (including through other Subsidiaries), by such Person.

“ Subsidiary REIT ” means RRP Subsidiary REIT, LP, a Delaware limited partnership.

“ Subsidiary REIT Charter ” means the Agreement of Limited Partnership of the Subsidiary REIT, as such agreement may be amended in accordance with its terms from time to time.

“ Subsidiary REIT Common Share ” means a common share in the Subsidiary REIT.

“ Subsidiary REIT Preferred Share ” means a preferred share in the Subsidiary REIT.

“ Tax Matters Partner ” has the meaning given to it in Section 7.2(b) .

“ Temporary Investments ” means short-term investments by the Partnership consisting of (a) United States government and agency obligations maturing within 180 days, (b) commercial paper rated at least A-1 (or the equivalent thereof) by S&P or P-1 (or the equivalent thereof) by Moody’s with a maturity not to exceed six (6) months and one (1) day, (c) interest-bearing deposits in United States banks maturing within 180 days and (d) money market mutual funds the assets of which are reasonably believed by the General Partner to consist primarily of items described in one or more of the foregoing clauses (a), (b) and (c).

“ Transfer ” means any sale, transfer, gift, assignment, devise or other disposition of Units (but excluding any redemption of Units), whether voluntary or involuntary, whether of record, constructively or beneficially and whether by operation of law or otherwise. With respect to any Limited Partner for which Units constitute all or substantially all of such Limited Partner’s assets, a sale or other conveyance of a majority of the equity or ownership interests of or control of, such Limited Partner to an unaffiliated third party shall constitute a Transfer of the Units held by such Limited Partner.

“ Umbrella Agreement ” means that certain Agreement Among the Fund Entities by and among the Fund General Partners, the Fund Partnership, the Parent REIT, the Subsidiary REIT, the Feeder Partnerships and the Partnership, as such agreement may be amended in accordance with its terms from time to time.

 

- 16 -

“ Unfunded Capital Commitment ” means, with respect to a Fund Limited Partner as of any date, such Fund Limited Partner’s Fund Capital Commitment, less the aggregate amount of such Fund Limited Partner’s capital contributions to the Participating Partnership in which such Fund Limited Partner is a partner as of such date.

“ Unfunded Capital Percentage ” means, with respect to a Fund Limited Partner as of any date, a percentage equal to such Fund Limited Partner’s Unfunded Capital Commitment divided by such Fund Limited Partner’s Fund Capital Commitment.

“ Units ” means Common Units and Preferred Units in the Partnership.

“ Valuation Policy ” has the meaning given to it in Section 5.13 .

SECTION 2

PARTNERS’ CAPITAL CONTRIBUTIONS

2.1 Units .

(a) Common Units . Capital Contributions made by Partners are set forth in Exhibit A , and each Partner shall own the number of Common Units set forth for such Partner in Exhibit A , which Capital Contributions and Common Units shall be adjusted in Exhibit A from time to time by the General Partner to the extent necessary to reflect accurately the issuance or redemption of Common Units or similar events having an effect on any Partner’s Common Units.

(i) Certificates . Common Units shall be evidenced by entries on the books of the Partnership. Certificates representing Common Units shall not be issued; provided, however, that the General Partner may provide that some or all of the Common Units shall be certificated.

(ii) Voting . Common Units shall not entitle the holder to vote on any matter under this Agreement, except as expressly required by the Act.

(iii) Rights . Each Common Unit shall have the rights and be governed by the provisions set forth in this Agreement, and none of such Common Units shall have any preemptive rights, or give the holders thereof any rights to convert into any other securities of the Partnership.

(iv) Restrictions on Transferability . The Common Units shall be subject to the restrictions on transfer provided in Section 9.1 .

(b) Preferred Units . Upon the issuance of the Parent REIT Preferred Shares and Subsidiary REIT Preferred Shares, each of the Parent REIT and the Subsidiary REIT will contribute to the Partnership an amount equal to the amount received by such entity in exchange for such shares, and the Partnership shall issue a number of Preferred Units to such entity in exchange for such contribution equal to the amount contributed by such entity, divided by $1,000.

 

- 17 -

(i) Certificates . Preferred Units shall be evidenced by entries on the books of the Partnership. Certificates representing Preferred Units shall not be issued; provided, however, that the General Partner may provide that some or all of the Preferred Units shall be certificated.

(ii) Voting . Preferred Units shall not entitle the holder to vote on any matter under this Agreement, as expressly required by the Act.

(iii) Rights . Each Preferred Unit shall have the rights and be governed by the provisions set forth in this Agreement, and none of such Preferred Units shall have any preemptive rights, or give the holders thereof any rights to convert into any other securities of the Partnership.

(iv) Restrictions on Transferability . The Preferred Units shall be subject to the restrictions on transfer provided in Section 9.1 .

2.2 Capital Calls During Initial Investment Period .

(a) At any time, and from time to time, during the Initial Investment Period, the General Partner may provide notice to the Fund General Partners that the Partnership requires additional capital for Partnership purposes (a “ Capital Call Notice ”). In determining the additional capital required for Partnership purposes that will be specified in the Capital Call Notice, the General Partner shall take into account any cash that will be contributed by the Regency Partner or any Affiliate pursuant to Section 2.6 . Each Capital Call Notice shall include the total additional amount of capital that the Partnership requires (the “ Additional Capital Amount ”) and the respective portions of such Additional Capital Amount that it requires from each of the Participating Partnerships (each, a “ Capital Amount Proportion ”). The Capital Amount Proportion for each Participating Partnership will be equal to the sum of the capital contributions from each Fund Limited Partner that is a limited partner in such Participating Partnership assuming that all Fund Limited Partners make capital contributions to their respective Participating Partnerships in the following manner until the aggregate amount of such capital contributions is equal to the Additional Capital Amount:

(i) first from:

(A) any Fund Limited Partners that made a capital contribution at the Initial Closing that have an Unfunded Capital Percentage that is greater than the Unfunded Capital Percentage of the Fund Limited Partner(s) with the lowest Unfunded Capital Percentage of the Fund Limited Partners that made capital contributions at the Initial Closing, and

(B) the Fund Limited Partners that made or increased their Capital Commitments after the Initial Closing

 

- 18 -

in proportion to, and to the extent necessary to cause, each such Fund Limited Partner’s Unfunded Capital Percentage to equal the then-current Unfunded Capital Percentage of the Fund Limited Partner(s) with the lowest Unfunded Capital Percentage; and

(ii) second, from all Fund Limited Partners in an amount with respect to each such Fund Limited Partner equal to the product of (A) the Additional Capital Amount less the amounts contributed pursuant to Section 2.2(a)(i) multiplied by (B) such Fund Limited Partner’s Capital Contribution Percentage.

(b) The Regency Partner’s obligation to make Capital Contributions shall be governed by Section 2.4 and not by this Section 2.2 .

(c) Notwithstanding anything to the contrary set forth herein, no Fund Limited Partner shall be required to make capital contributions to the Participating Partnership in which such Fund Limited Partner is a limited partner in an aggregate amount exceeding such Fund Limited Partner’s Fund Capital Commitment.

(d) For purposes of Capital Calls pursuant to this Section 2.3 , the General Partner shall not take into account Delinquent Limited Partners (as defined in the Fund Partnership Agreement) or any other Fund Limited Partner that is delinquent in making capital contributions to a Feeder Partnership and the units held by such delinquent Fund Limited Partners.

2.3 Issuance of Additional Units .

(a) At any time after the date hereof, without the consent of any Limited Partner, the General Partner may cause the Partnership to issue additional Units (including Common Units and Preferred Units) to the Parent REIT, the Subsidiary REIT, the Regency Partner (in connection with a contribution of Properties pursuant to the Exclusivity Agreement) or an Affiliate of the Regency Partner (in connection with a contribution of Properties pursuant to the Exclusivity Agreement) and reflect such issuance on an amendment or supplement to Exhibit A , in exchange for Capital Contributions; provided, however, that the issuance of Common Units at other than Net Asset Value Per Unit is subject to the approval of the Advisory Council, pursuant to Section 5.5(g) , except that during the Initial Investment Period Common Units shall be issued at a price equal to the greater of Net Asset Value Per Unit or one thousand dollars ($1,000) per Unit provided, however, that Common Units issued as a result of the investment of proceeds from the issuance of Fund Limited Partner Units to Fund Limited Partners that became Fund Limited Partners prior to June 30, 2007 will be issued at one thousand dollars ($1,000) per Common Unit until such time as all Fund Limited Partners that became Fund Limited Partners prior to June 30, 2007 (other than any Delinquent Limited Partner (as defined in the Fund Partnership Agreement) or any other Fund Limited Partner that is delinquent in making capital contributions to a Feeder Partnership) have made Capital Contributions such that they all have the same Unfunded Capital Percentage. The Partnership shall not issue additional Preferred Units unless it is necessary or advisable to do so in order to maintain the status of the Subsidiary REIT or Parent REIT as a REIT. The Partnership shall not issue any partnership interests or equity securities other than Preferred Units or Common Units issued in accordance with this Section 2.3 .

 

- 19 -

(b) Except as otherwise provided herein, from and after the date hereof, the Subsidiary REIT shall not issue any additional Subsidiary REIT Common Shares or Subsidiary REIT Preferred Shares, unless (1) the Subsidiary REIT contributes to the Partnership the net proceeds from the issuance of such Subsidiary REIT Common Shares or Subsidiary REIT Preferred Shares; and (2) the General Partner causes the Partnership to issue to the Subsidiary REIT either Common Units or Preferred Units having designations, preferences and other rights, all such that the economic interests are substantially similar to those of the Subsidiary REIT Common Shares or Subsidiary REIT Preferred Shares.

(c) Except as otherwise provided herein, from and after the date hereof, the Parent REIT shall not issue any additional Parent REIT Preferred Shares, unless (1) the Parent REIT contributes to the Partnership the net proceeds from the issuance of such Parent REIT Preferred Shares; and (2) the General Partner causes the Partnership to issue to the Parent REIT Preferred Units having designations, preferences and other rights, all such that the economic interests are substantially similar to those of the Parent REIT Preferred Shares.

(d) The General Partner shall not accept contributions from or issue Common Units to the Subsidiary REIT for proceeds resulting from the issuance of Subsidiary REIT Common Shares to a Feeder Partnership unless and until such Feeder Partnership has become a party to the Umbrella Agreement and complied with its obligations thereunder.

2.4 Regency Required Investment .

(a) The Regency Partner agrees, on behalf of itself and its Affiliates, that it will at all times own Regency Interests such that the Regency Investment Percentage shall be greater than or equal to twenty percent (20%) (the “ Regency Required Investment ”). Subject to the Exclusivity Agreement, the Regency Partner and its Affiliates may satisfy the Regency Required Investment requirement by conveying a Property to the Partnership in exchange for Common Units for all or a portion of the contribution value determined pursuant to the Exclusivity Agreement or by buying units in the Fund Partnership, Common Units, or units in the Feeder Partnerships for cash or property. If, upon any issuance of Fund Limited Partner Units, the Regency Investment Percentage is not equal to or greater than the Regency Required Investment, then as of the date of such issuance of Fund Limited Partner Units the Regency Partner or an Affiliate will acquire, at a price per Common Unit equal to the Net Asset Value Per Unit as of such date (provided that prior to the end of the Initial Investment Period, Units shall be issued at a price per Unit equal to the greater of (i) $1,000 or (ii) the Net Asset Value Per Unit as of such date), a number of units in the Fund Partnership, Common Units or units in the Feeder Partnerships sufficient to cause the Regency Investment Percentage to equal or exceed the Regency Required Investment.

(b) The General Partner is authorized to issue Units to the Regency Partner, an Affiliate of the Regency Partner or the Subsidiary REIT at a price per Unit equal to the Net Asset Value Per Unit as of such date (provided that prior to the end of the Initial Investment Period,

 

- 20 -

Units shall be issued at a price per Unit equal to the greater of (i) $1,000 or (ii) the Net Asset Value Per Unit as of such date) in connection with a purchase by the Regency Partner or an Affiliate of the Regency Partner of Common Units, units in the Feeder Partnerships or units in the Fund Partnership pursuant to this Section 2.4 (which in the case of units purchased in the Fund Partnership or a Feeder Partnership, in turn, will result in the Subsidiary REIT contributing the proceeds of such issuances to the Partnership pursuant to the terms of the applicable Fund Governing Documents), whether during or after the Initial Offering Period.

2.5 Other Matters .

(a) Except as otherwise provided in this Agreement, no Partner shall demand or receive a return of any Capital Contributions made by such Partner. No Partner shall have the right to receive property other than cash from the Partnership.

(b) No Partner shall receive any interest, salary, or drawing with respect to its Capital Contribution or its Capital Account or for services rendered on behalf of the Partnership or otherwise in its capacity as a Partner of the Partnership, except as otherwise provided in this Agreement.

(c) Except for its obligations to make contributions to the Partnership, and other payments, as expressly provided for herein, no Limited Partner shall otherwise be liable to the Partnership for the repayment, satisfaction or discharge of the Partnership’s debts, liabilities and obligations. Except to the extent required by the Act, no Limited Partner shall be personally liable to any third party for any debt, liability or other obligation of the Partnership.

SECTION 3

ALLOCATION OF PROFITS AND LOSSES

3.1 Allocation of Profits and Losses .

(a) In General . After giving effect to the allocations set forth in Sections 3.2 and 3.3 hereof, Profits or Losses for any Fiscal Period shall be allocated to the Partners holding Common Units in proportion to their Percentage Interests.

(b) Limitation on Losses . Notwithstanding Section 3.2(a) , to the extent Losses allocated to a Limited Partner under Section 3.2(a) would cause such Limited Partner to have an Adjusted Capital Account deficit as of the end of the Fiscal Period to which such Losses relate, such Losses shall not be allocated to such Partner and instead shall be allocated to the General Partner.

3.2 Special Allocations . Notwithstanding any provisions of Section 3.1 , the following special allocations shall be made in the following order:

(a) Minimum Gain Chargeback . If there is a net decrease in “partnership minimum gain” (as that term is defined in Sections 1.704-2(b)(2) and 1.704-2(d) of the Regulations) during any year, each Partner shall, to the extent required by Section 1.704-2(f) of

 

- 21 -

the Regulations, be specially allocated items of Partnership income and gain for such year (and, to the extent required by Section 1.704-2(j)(2)(iii) of the Regulations, subsequent years) in an amount equal to that Partner’s share of the net decrease in Partnership minimum gain. Allocations pursuant to the previous sentence shall be made in accordance with Section 1.704-2(f)(6) of the Regulations. This Section 3.2(a) is intended to comply with the minimum gain chargeback requirement in Section 1.704-2(f) of the Regulations and shall be interpreted consistently therewith.

(b) Partner Minimum Gain Chargeback . If there is a net decrease in “partner nonrecourse debt minimum gain” (as that term is defined in Sections 1.704-2(i)(2) and (3) of the Regulations) during any year, each Partner who has a share of that partner nonrecourse debt minimum gain as of the beginning of the Fiscal Year shall, to the extent required by Section 1.704-2(i)(4) of the Regulations, be specially allocated items of Partnership income and gain for such year (and, if necessary, subsequent years) equal to that Partner’s share of the net decrease in partner nonrecourse debt minimum gain. Allocations pursuant to the previous sentence shall be made in accordance with Section 1.704-2(i)(4) of the Regulations. This Section 3.2(b) is intended to comply with the requirement in Section 1.704-2(i)(4) of the Regulations and shall be interpreted consistently therewith.

(c) Qualified Income Offset . If any Partner unexpectedly receives any adjustments, allocations, or distributions described in Sections 1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5) or 1.704-1(b)(2)(ii)(d)(6) of the Regulations, items of Partnership income and gain shall be specially allocated to each such Partner in an amount and manner sufficient to eliminate, to the extent required by the Regulations, the Adjusted Capital Account deficit of such Partner as quickly as possible, provided that an allocation pursuant to this Section 3.2(c) shall be made only if and to the extent that such Partner would have an Adjusted Capital Account deficit after all other allocations provided for in this Section 3 have been tentatively made as if this Section 3.2(c) were not in the Agreement.

(d) Nonrecourse Deductions . “Nonrecourse deductions” (as that term is defined in Section 1.704-2(1) and (c) of the Regulations) for any year or other period shall be specially allocated to the Partners holding Common Units in proportion to their Percentage Interests.

(e) Partner Nonrecourse Deductions . “Partner nonrecourse deductions” (as that term is defined in Section 1.704-2(i) of the Regulations) for any Fiscal Period shall be specially allocated to the Partner who bears the economic risk of loss with respect to the “partner nonrecourse debt” (as that term is defined in Section 1.704-2(b)(4) of the Regulations) to which such partner nonrecourse deductions are attributable, in accordance with Regulations Section 1.704-2(i)(1).

(f) Section 754 Adjustments . To the extent an adjustment to the adjusted tax basis of any Partnership asset pursuant to Code Section 734(b) or Code Section 743(b) is required, pursuant to Regulations Section 1.704-1(b)(2)(iv)( m ), to be taken into account in determining Capital Accounts, the amount of such adjustment to Capital Accounts shall be treated as an item of gain (if the adjustment increases the basis of the asset) or loss (if the

 

- 22 -

adjustment decreases such basis) and such 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 such Section of the Regulations.

(g) Allocation of Gains and Losses Attributable to Revaluations . If the Gross Asset Value of any Partnership asset is adjusted pursuant to part (ii) of the definition of Gross Asset Value, the amount of such adjustment shall be specially allocated to the Partners holding Common Units in proportion to their Percentage Interests; provided however , that any adjustments in connection with a distribution to the Regency Partner under Section 12.4 shall be allocated in accordance with Section 3.7 .

(h) Preferred Unit Allocation . For each Fiscal Period, each of the Parent REIT and the Subsidiary REIT shall be allocated items of gross income or gain equal to the sum of (i) the aggregate distributions received by such entity with respect to such Fiscal Period pursuant to Sections 4.2(a) and (b)  (including distributio