EXHIBIT 3.1
THIRD AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
SUBURBAN PROPANE PARTNERS, L.P.
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
..................................................................
2
1.1
Definitions
..................................................................
2
1.2
Construction
.................................................................
11
ARTICLE II
ORGANIZATION
.................................................................
11
2.1
Formation
....................................................................
11
2.2
Name
.........................................................................
11
2.3
Registered Office; Registered Agent; Principal Office; Other
Offices .........
12
2.4
Purpose and Business
.........................................................
12
2.5
Powers
.......................................................................
12
2.6
Power of Attorney
............................................................
12
2.7
Term
.........................................................................
12
2.8
Title to Partnership Assets
..................................................
13
ARTICLE III
RIGHTS OF LIMITED PARTNERS
...................................................
14
3.1
Limitation of Liability
......................................................
14
3.2
Management of Business
.......................................................
14
3.3
Outside Activities of the Limited Partners
...................................
14
3.4
Rights of Limited Partners
...................................................
14
ARTICLE IV
CERTIFICATES; RECORD HOLDERS; TRANSFER OF PARTNERSHIP
INTERESTS; REDEMPTION OF PARTNERSHIP INTERESTS
...............................
15
4.1
Certificates
.................................................................
15
4.2
Mutilated, Destroyed, Lost or Stolen Certificates
............................
15
4.3
Record Holders
...............................................................
16
4.4
Transfer Generally
...........................................................
16
4.5
Registration and Transfer of Units
...........................................
17
4.6
Transfer of a General Partner's Partnership Interest
.........................
17
4.7
[Deleted]
....................................................................
18
4.8
[Deleted]
....................................................................
18
4.9
Restrictions on Transfers
....................................................
18
4.10
Citizenship Certificates; Non-citizen Assignees
..............................
19
4.11
Redemption of Partnership Interests of Non-citizen Assignees
.................
19
ARTICLE V
CAPITAL CONTRIBUTIONS AND ISSUANCE OF PARTNERSHIP
INTERESTS
....................................................................
20
5.1
[Deleted.]
...................................................................
20
5.2
[Deleted.]
...................................................................
20
5.3
Outstanding General Partner Unit; Ownership of Common Units
..................
20
5.4
Interest and Withdrawal
......................................................
20
5.5
Capital Accounts
.............................................................
21
5.6
Issuances of Additional Partnership Securities
...............................
22
5.7
[Deleted.]
...................................................................
23
5.8
[Deleted.]
...................................................................
23
5.9
No Preemptive Rights
.........................................................
23
5.10
Splits and Combinations
......................................................
23
5.11
Fully Paid and Non-Assessable Nature of Limited Partner Interests
............
24
5.12
Loans from Partners
..........................................................
24
ARTICLE VI
ALLOCATIONS AND DISTRIBUTIONS
................................................
24
6.1
Allocations for Capital Account Purposes
.....................................
24
6.2
Allocations for Tax Purposes
.................................................
26
6.3
Requirement and Characterization of Distributions; Distributions to
Record
Holders
.....................................................................
27
TABLE OF CONTENTS
ARTICLE VII
MANAGEMENT AND OPERATION OF BUSINESS
.........................................
28
7.1
Management
...................................................................
28
7.2
The Board of Supervisors; Election; Term; Manner of Acting
...................
30
7.3
Nominations of Supervisors
...................................................
30
7.4
Removal of Members of the Board of Supervisors
...............................
31
7.5
Resignations of Members of the Board of Supervisors
..........................
31
7.6
Vacancies on the Board of Supervisors
........................................
31
7.7
Meetings; Committees; Chairman
...............................................
31
7.8
Officers
.....................................................................
32
7.9
Compensation
.................................................................
33
7.10
Restrictions on General Partner's and Board of Supervisors'
Authority ........
34
7.11
Reimbursement of the General Partner; Employee Benefit Plans
.................
34
7.12
Outside Activities of the General Partner
....................................
34
7.13
Loans from the General Partner; Contracts with Affiliates; Certain
Restrictions on the General Partner
.........................................
35
7.14
Indemnification
..............................................................
36
7.15
Liability of Indemnitees
.....................................................
37
7.16
Resolution of Conflicts of Interest
..........................................
38
7.17
Other Matters Concerning the General Partner and the Board of
Supervisors.
39
7.18
Purchase or Sale of Units
....................................................
40
7.19
[Deleted.]
...................................................................
40
7.20
Reliance by Third Parties
....................................................
40
ARTICLE VIII
BOOKS, RECORDS, ACCOUNTING AND REPORTS
.......................................
40
8.1
Records and Accounting
.......................................................
40
8.2
Fiscal Year
..................................................................
41
8.3
Reports
......................................................................
41
ARTICLE IX
TAX MATTERS
..................................................................
41
9.1
Tax Returns and Information
..................................................
41
9.2
Tax Elections
................................................................
41
9.3
Tax Controversies
............................................................
42
9.4
Withholding
..................................................................
42
ARTICLE X
ADMISSION OF PARTNERS
........................................................
42
10.1
Current Partners
.............................................................
42
10.2
Admission of Substituted Limited Partners
....................................
42
10.3
Admission of Successor General Partner
.......................................
43
10.4
Admission of Additional Limited Partners
.....................................
43
10.5
Amendment of Agreement and Certificate of Limited Partnership
................
43
ARTICLE XI
WITHDRAWAL OR REMOVAL OF PARTNERS
............................................
43
11.1
Withdrawal of the General Partner
............................................
43
11.2
Removal of the General Partner
...............................................
45
11.3
Interest of Departing Partner and Successor General Partner;
Delegation of
Authority to the Board of Supervisors by Successor General Partner
..........
45
11.4
[Deleted.]
...................................................................
45
11.5
Withdrawal of Limited Partners
...............................................
45
ARTICLE XII
DISSOLUTION AND LIQUIDATION
..................................................
45
12.1
Dissolution
..................................................................
45
12.2
[Deleted]
....................................................................
46
12.3
Liquidator
...................................................................
46
12.4
Liquidation
..................................................................
46
TABLE OF CONTENTS
12.5
Cancellation of Certificate of Limited Partnership
...........................
47
12.6
Return of Capital Contributions
..............................................
47
12.7
Waiver of Partition
..........................................................
47
12.8
Capital Account Restoration
..................................................
47
ARTICLE XIII
AMENDMENT OF PARTNERSHIP AGREEMENT; MEETINGS;
RECORD DATE
..................................................................
47
13.1
Amendment to be Adopted Solely by the Board of Supervisors
...................
47
13.2
Amendment Procedures
.........................................................
48
13.3
Amendment Requirements
.......................................................
49
13.4
Tri-Annual and Special Meetings
..............................................
49
13.5
Notice of a Meeting
..........................................................
50
13.6
Record Date
..................................................................
50
13.7
Adjournment
..................................................................
50
13.8
Waiver of Notice; Approval of Meeting; Approval of Minutes
...................
50
13.9
Quorum
.......................................................................
51
13.10
Conduct of a Meeting
.........................................................
51
13.11
Action Without a Meeting
.....................................................
51
13.12
Voting and Other Rights
......................................................
52
ARTICLE XIV
MERGERS AND BUSINESS COMBINATIONS WITH INTERESTED
UNITHOLDERS
..................................................................
52
14.1
Authority
....................................................................
52
14.2
Procedure for Merger or Consolidation
........................................
52
14.3
Approval by Limited Partners of Merger or Consolidation
......................
53
14.4
Certificate of Merger
........................................................
53
14.5
Effect of Merger
.............................................................
53
14.6
Business Combinations with Interested Unitholders
............................
54
ARTICLE XV
[Deleted.]
...................................................................
54
ARTICLE XVI
GENERAL PROVISIONS
...........................................................
54
16.1
Addresses and Notices
........................................................
54
16.2
Further Action
...............................................................
55
16.3
Binding Effect
...............................................................
55
16.4
Integration
..................................................................
55
16.5
Creditors
....................................................................
55
16.6
Waiver
.......................................................................
55
16.7
Counterparts
.................................................................
55
16.8
Applicable Law
...............................................................
55
16.9
Invalidity of Provisions
.....................................................
55
16.10
Consent of Partners
..........................................................
55
Exhibit A
..............................................................................
57
THIRD AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
SUBURBAN PROPANE PARTNERS, L.P.
THIS THIRD AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF
SUBURBAN PROPANE PARTNERS, L.P. dated as of October 19, 2006, (the
"Agreement"
or "Partnership Agreement") is entered into by and among SUBURBAN
ENERGY
SERVICES GROUP LLC, a Delaware limited liability company, as the
General
Partner, and those Persons who are or become Partners in the
Partnership or
parties hereto as provided herein. In consideration of the
covenants,
conditions and agreements contained herein, the parties hereto
hereby agree as
follows:
R E C I T A L S :
WHEREAS, Suburban Propane GP, Inc., a Delaware corporation and the
initial
general partner of the Partnership, (the "Initial General
Partner"), and
certain other parties, organized the Partnership as a Delaware
limited
partnership pursuant to the Delaware Act by filing a certificate of
limited
partnership of the Partnership with the Secretary of State of the
State of
Delaware on December 18, 1995 and the execution by the Initial
General Partner
and certain other parties as limited partners of that certain
Agreement of
Limited Partnership of the Partnership dated as of December 18,
1995 (the
"Original Agreement") providing for the organization of the
partnership upon
the terms and conditions set forth therein, which was subsequently
amended and
restated by the Amended and Restated Limited Partnership Agreement
dated as of
March 4, 1996, and by the Second Amended and Restated Limited
Partnership
Agreement dated as of May 26, 1999 (the "Second Partnership
Agreement"); and
WHEREAS, pursuant to Section 5.8 of the Second Partnership
Agreement, the
Partnership and the General Partner have entered into an exchange
agreement,
dated as of July 27, 2006 (the "Exchange Agreement"), in accordance
with which
all Incentive Distribution Rights (as defined in the Second
Partnership
Agreement), the entire economic interest in the Partnership
included in the
General Partner Interest and the entire economic interest in
Suburban Propane,
L.P. included in the General Partner's interest therein shall be
exchanged for
2,300,000 Common Units; and
WHEREAS, the Exchange Agreement and this Partnership Agreement have
been
submitted to, and approved by, the Audit Committee (by Special
Approval), the
Board of Supervisors, the General Partner and the requisite vote
of, the
Limited Partners; and
WHEREAS, pursuant to Section 13.1 of the Second Partnership
Agreement and
this Partnership Agreement, the Board of Supervisors has the
authority to adopt
certain amendments to this Agreement relating to the transactions
contemplated
by the Exchange Agreement without the approval of any Limited
Partner or
Assignee to reflect, among other things, a change that, in the
discretion of
the Board of Supervisors, does not adversely affect the Limited
Partners in any
material respect.
NOW, THEREFORE, in consideration of the covenants and agreements
made
herein, the Partnership Agreement is hereby amended and restated in
its
entirety as follows:
ARTICLE I
DEFINITIONS
1.1 DEFINITIONS.
The following definitions shall be for all purposes, unless
otherwise
clearly indicated to the contrary, applied to the terms used in
this Agreement.
`Acquisition' means any transaction in which any Group Member
acquires
(through an asset acquisition, merger, stock acquisition or other
form of
investment) control over all or a portion of the assets, properties
or business
of another Person for the purpose of increasing the operating
capacity of the
Partnership Group from the operating capacity of the Partnership
Group existing
immediately prior to such transaction.
1
`Additional Limited Partner' means a Person admitted to the
Partnership as
a Limited Partner pursuant to Section 10.4 and who is shown as such
on the
books and records of the Partnership.
`Adjusted Capital Account' means the Capital Account maintained for
each
Partner as of the end of each calendar year, (a) increased by any
amounts that
such Partner is obligated to restore under the standards set by
Treasury
Regulation Section 1.704-1(b)(2)(ii)(c) (or is deemed obligated to
restore
under Treasury Regulation Sections 1.704-2(g) and 1.704-2(i)(5))
and (b)
decreased by (i) the amount of all losses and deductions that, as
of the end of
such calendar year, are reasonably expected to be allocated to such
Partner in
subsequent years under Sections 704(e)(2) and 706(d) of the Code
and Treasury
Regulation Section 1.751-1(b)(2)(ii), and (ii) the amount of all
distributions
that, as of the end of such calendar year, are reasonably expected
to be made
to such Partner in subsequent years in accordance with the terms of
this
Agreement or otherwise to the extent they exceed offsetting
increases to such
Partner's Capital Account that are reasonably expected to occur
during (or
prior to) the year in which such distributions are reasonably
expected to be
made (other than increases as a result of a minimum gain chargeback
pursuant to
Section 6.1(e)(i) or 6.1(e)(ii)). The foregoing definition of
Adjusted Capital
Account is intended to comply with the provisions of Treasury
Regulation
Section 1.704-1(b)(2)(ii)(d) and shall be interpreted consistently
therewith.
The `Adjusted Capital Account' of a Partner in respect of a General
Partner
Unit, a Common Unit, or any other specified interest in the
Partnership shall
be the amount which such Adjusted Capital Account would be if such
General
Partner Unit, Common Unit, or other interest in the Partnership
were the only
interest in the Partnership held by a Partner from and after the
date on which
such General Partner Unit, Common Unit, or other interest was first
issued.
`Adjusted Property' means any property the Carrying Value of which
has
been adjusted pursuant to Section 5.5(d)(i) or 5.5(d)(ii).
`Affiliate' means, with respect to any Person, any other Person
that
directly or indirectly through one or more intermediaries controls,
is
controlled by or is under common control with, the Person in
question. As used
herein, the term `control' means the possession, direct or
indirect, of the
power to direct or cause the direction of the management and
policies of a
Person, whether through ownership of voting securities, by contract
or
otherwise.
`Agreed Allocation' means any allocation, other than a Required
Allocation, of an item of income, gain, loss or deduction pursuant
to the
provisions of Section 6.1, including, without limitation, a
Curative Allocation
(if appropriate to the context in which the term `Agreed
Allocation' is used).
`Agreed Value' of any Contributed Property means the fair market
value of
such property or other consideration at the time of contribution as
determined
by the Board of Supervisors using such reasonable method of
valuation as it may
adopt. The Board of Supervisors shall, in its discretion, use such
method as it
deems reasonable and appropriate to allocate the aggregate Agreed
Value of
Contributed Properties contributed to the Partnership in a single
or integrated
transaction among each separate property on a basis proportional to
the fair
market value of each Contributed Property.
`Assignee' means a Non-citizen Assignee or a Person to whom one or
more
Units representing a Limited Partner Interest have been transferred
in a manner
permitted under this Agreement and who has executed and delivered a
Transfer
Application as required by this Agreement, but who has not been
admitted as a
Substituted Limited Partner.
`Associate' means, when used to indicate a relationship with any
Person,
(a) any corporation or organization of which such Person is a
director, officer
or partner or is, directly or indirectly, the owner of 20% or more
of any class
of voting stock or other voting interest; (b) any trust or other
estate in
which such Person has at least a 20% beneficial interest or as to
which such
Person serves as trustee or in a similar fiduciary capacity; and
(c) any
relative or spouse of such Person, or any relative of such spouse,
who has the
same residence as such Person.
`Audit Committee' means a committee of the Board of Supervisors of
the
Partnership composed of three or more of the Supervisors then
serving, each of
whom shall satisfy the requirements of Section 7.7(b).
2
`Available Cash' means, with respect to any Quarter ending prior to
the
Liquidation Date,
(a) the sum of (i) all cash and cash equivalents of the Partnership
Group
on hand at the end of such Quarter, and (ii) all additional cash
and cash
equivalents of the Partnership Group on hand on the date of
determination of
Available Cash with respect to such Quarter resulting from
borrowings for
working capital purposes less
(b) the amount of any cash reserves that is necessary or
appropriate in
the reasonable discretion of the Board of Supervisors to (i)
provide for the
proper conduct of the business of the Partnership Group (including
reserves for
future capital expenditures) subsequent to such Quarter, (ii)
comply with
applicable law or any loan agreement, security agreement, mortgage,
debt
instrument or other agreement or obligation to which any Group
Member is a
party or by which it is bound or its assets are subject or (iii)
provide funds
for distributions in respect of any one or more of the next four
Quarters;
provided, however, that the disbursements made by a Group Member or
cash
reserves established, increased or reduced after the end of such
Quarter but on
or before the date of determination of Available Cash with respect
to such
Quarter shall be deemed to have been made, established, increased
or reduced,
for purposes of determining Available Cash, within such Quarter if
the Board of
Supervisors so determines.
Notwithstanding the foregoing, `Available Cash' with respect to the
Quarter in which the Liquidation Date occurs and any subsequent
Quarter shall
equal zero.
`Beneficial Owner' has the meaning ascribed to such term in Rule
13d-3 of
the Rules and Regulations promulgated under the Securities Exchange
Act of
1934, as amended, and `Beneficially Owned' shall have the
corresponding
meaning.
`Board of Supervisors' shall mean the board of supervisors of the
Partnership, elected in accordance with the provisions of Article
VII, to whom
the General Partner irrevocably delegates, and in which is vested,
pursuant to
Section 7.1, and subject to Section 7.10, the power to manage the
business and
activities of the Partnership. The Board of Supervisors shall
constitute a
committee with the meaning of Section 17-303(b)(7) of the Delaware
Act.
`Book-Tax Disparity' 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 Section 5.5 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 Combination' means:
(i) any merger or consolidation of the Partnership or any direct or
indirect majority-owned Subsidiary of the Partnership with (A) the
Interested
Unitholder, or (B) with any other corporation, partnership,
unincorporated
association or other entity if the merger or consolidation is
caused by the
Interested Unitholder;
(ii) Any sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in one transaction or a series of transactions),
except
proportionately as a Unitholder of the Partnership, to or with the
Interested
Unitholder, whether as part of a dissolution or otherwise, of
assets of the
Partnership or of any direct or indirect majority-owned Subsidiary
of the
Partnership which assets have an aggregate market value equal to
10% or more of
either the aggregate market value of all the assets of the
Partnership
determined on a consolidated basis or the aggregate market value of
all the
Outstanding Units of the Partnership;
(iii) Any transaction which results in the issuance or transfer by
the
Partnership or by any direct or indirect majority-owned Subsidiary
of the
Partnership of any Units of the Partnership or equity securities of
such
Subsidiary to the Interested Unitholder, except: (A) pursuant to
the exercise,
exchange or conversion of securities exercisable for, exchangeable
for or
convertible into Units of the Partnership or equity securities of
any
Subsidiary of the Partnership, which Units or equity securities
were
outstanding
3
prior to the time that the Interested Unitholder became such; (B)
pursuant to a
dividend or distribution paid or made, or the exercise, exchange or
conversion
of securities exercisable for, exchangeable for or convertible into
Units or
securities of any such Subsidiary, which security is distributed
pro rata to
all Unitholders of the Partnership subsequent to the time the
Interested
Unitholder became such; (C) pursuant to an exchange offer by the
Partnership to
purchase Units made on the same terms to all Unitholders; or (D)
any issuance
or transfer of Units by the Partnership; provided however, that in
no case
under items (C) and (D) shall there be an increase in the
Interested
Unitholder's proportionate share of the Units of the Partnership;
(iv) Any transaction involving the Partnership or any direct or
indirect
majority-owned Subsidiary of the Partnership which has the effect,
directly or
indirectly, of increasing the proportionate share of the Units of
the
Partnership or equity securities of any Subsidiary of the
Partnership which is
owned by the Interested Unitholder, except as a result of
immaterial changes
due to fractional unit adjustments or as a result of any purchase
or redemption
of any Units or such securities not caused, directly or indirectly,
by the
Interested Unitholder; or
(v) Any receipt by the Interested Unitholder of the benefit,
directly or
indirectly (except proportionately as a Unitholder of the
Partnership), of any
loans, advances, guarantees, pledges or other financial benefits
(other than
those expressly permitted in clauses (i)-(iv) above) provided by or
through the
Partnership or any direct or indirect majority-owned Subsidiary of
the
Partnership.
`Business Day' means Monday through Friday of each week, except
that a
legal holiday recognized as such by the government of the United
States of
America or the states of New York or New Jersey shall not be
regarded as a
Business Day.
`Capital Account' means the capital account maintained for a
Partner
pursuant to Section 5.5. The `Capital Account' of a Partner in
respect of the
General Partner Unit, a Common Unit, or any other Partnership
Interest shall be
the amount which such Capital Account would be if such General
Partner Unit,
Common Unit, or other Partnership Interest were the only interest
in the
Partnership held by a Partner from and after the date on which such
General
Partner Unit, Common Unit, or other Partnership Interest was first
issued.
`Capital Contribution' means any cash, cash equivalents or the Net
Agreed
Value of Contributed Property that a Partner contributes or has
contributed to
the Partnership pursuant to this Agreement (or the Original
Agreement) or the
Contribution and Conveyance Agreement.
`Capital Improvements' means (a) additions or improvements to the
capital
assets owned by any Group Member or (b) the acquisition of
existing, or the
construction of new, capital assets (including retail distribution
outlets,
propane tanks, pipeline systems, storage facilities and related
assets), made
to increase the operating capacity of the Partnership Group from
the operating
capacity of the Partnership Group existing immediately prior to
such addition,
improvement, acquisition or construction.
`Capitalized Lease Obligations' means obligations to pay rent or
other
amounts under any lease of (or other arrangement conveying the
right to use)
real and/or personal property, which obligations are accounted for
as a capital
lease on a balance sheet under U.S. GAAP; for the purpose hereof
the amount of
such obligations shall be the capitalized amount reflected on such
balance
sheet.
`Carrying Value' means (a) with respect to a Contributed Property,
the
Agreed Value of such property reduced (but not below zero) by all
depreciation,
amortization and cost recovery deductions charged to the Partners'
and
Assignees' Capital Accounts in respect of such Contributed
Property, and (b)
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 Sections 5.5(d)(i) and 5.5(d)(ii) and to reflect
changes,
additions or other adjustments to the Carrying Value for
dispositions and
acquisitions of Partnership properties, as deemed appropriate by
the Board of
Supervisors.
`Cause' means a court of competent jurisdiction has entered a
final,
non-appealable judgment finding a Person liable for actual fraud,
gross
negligence or willful or wanton misconduct in its capacity as
general partner
of the Partnership or as a member of the Board of Supervisors, as
the case may
be.
4
`Certificate' means a certificate, (a) substantially in the form of
Exhibit A to this Agreement, (b) issued in global form in
accordance with the
rules and regulations of the Depositary or (c) in such other form
as may be
adopted by the Board of Supervisors in its discretion, issued by
the
Partnership evidencing ownership of one or more Common Units or a
certificate,
in such form as may be adopted by the Board of Supervisors in its
discretion,
issued by the Partnership evidencing ownership of one or more other
Partnership
Interests.
`Certificate of Limited Partnership' means the Certificate of
Limited
Partnership of the Partnership filed with the Secretary of State of
the State
of Delaware as referenced in Section 2.1, as such Certificate of
Limited
Partnership may be amended, supplemented or restated from time to
time.
`Citizenship Certification' means a properly completed certificate
in such
form as may be specified by the Board of Supervisors by which an
Assignee or a
Limited Partner certifies that he (and if he is a nominee holding
for the
account of another Person, that to the best of his knowledge such
other Person)
is an Eligible Citizen.
`Closing Price' for any day means the last sale price on such day,
or in
case no such sale takes place on such day, the average of the
closing bid and
asked prices on such day, in either case as reported in the
principal
consolidated transaction reporting system with respect to
securities listed or
admitted for trading on the principal National Securities Exchange
on which the
Units of such class are listed or admitted to trading or, if the
Units of such
class are not listed or admitted to trading on any National
Securities
Exchange, the last quoted price on such day or, if not so quoted,
the average
of the high bid and low asked prices on such day in the
over-the-counter
market, or, if on any such day the Units of such class are not
quoted by any
such organization, the average of the closing bid and asked prices
on such day
as furnished by a professional market maker making a market in the
Units of
such class selected by the Board of Supervisors, or if on any such
day no
market maker is making a market in the Units of such class, the
fair value of
such Units on such day as determined reasonably and in good faith
by the Board
of Supervisors.
`Code' means the Internal Revenue Code of 1986, as amended and in
effect
from time to time. 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.
`Common Unitholder' means a Unitholder holding Common Units.
`Commission' means the United States Securities and Exchange
Commission.
`Common Unit' means a Unit representing a fractional part of the
Partnership Interests of all Limited Partners and Assignees and
having the
rights and obligations specified with respect to Common Units in
this
Agreement.
`Contributed Property' means each property or other asset, in such
form as
may be permitted by the Delaware Act, but excluding cash,
contributed to the
Partnership. Once the Carrying Value of a Contributed Property is
adjusted
pursuant to Section 5.5(d), such property shall no longer
constitute a
Contributed Property, but shall be deemed an Adjusted Property.
`Contribution and Conveyance Agreement' means that certain
Contribution,
Conveyance and Assumption Agreement, dated as of March 4, 1996,
among the
Initial General Partner, the Partnership, the Operating Partnership
and certain
other parties, together with the additional conveyance documents
and
instruments contemplated or referenced thereunder.
`Curative Allocation' means any allocation of an item of income,
gain,
deduction, loss or credit pursuant to the provisions of Section
6.1(e)(xi).
`Current Market Price' as of any date for any class of Units listed
or
admitted to trading on any National Securities Exchange means the
average of
the daily Closing Prices per Unit of such class for the 20
consecutive Trading
Days immediately prior to such date.
`Delaware Act' means the Delaware Revised Uniform Limited
Partnership Act,
6 Del C.
Section
Section 17-101, et seq., as amended, supplemented or
restated from time to time, and any successor to such statute.
`Departing Partner' means a former General Partner from and after
the
effective date of any withdrawal or removal of such former General
Partner
pursuant to Section 11.1 or 11.2.
5
`Depositary' means, with respect to any Units issued in global
form, The
Depository Trust Company and its successors and permitted assigns.
`Economic Risk of Loss' has the meaning set forth in Treasury
Regulation
Section 1.752-2(a).
`Eligible Citizen' means a Person qualified to own interests in
real
property in jurisdictions in which any Group Member does business
or proposes
to do business from time to time, and whose status as a Limited
Partner or
Assignee does not or would not subject such Group Member to a
significant risk
of cancellation or forfeiture of any of its properties or any
interest therein.
`Event of Withdrawal' has the meaning assigned to such term in
Section
11.1(a).
`Exchange Act' means the Securities Exchange Act of 1934, as
amended,
supplemented or restated from time to time and any successor to
such statute.
`Exchange Agreement' means the agreement dated as of July 27, 2006,
by and
among the Partnership, the General Partner and Suburban Propane,
L.P., as it
may be amended, supplemented or restated from time to time.
`General Partner' means Suburban Energy Services Group LLC and its
successors as general partner of the Partnership.
`General Partner Interest' means the ownership interest of the
General
Partner in the Partnership (in its capacity as a general partner
without
reference to any Limited Partner Interest held by it) which is
evidenced by the
General Partner Unit and includes any and all benefits to which the
General
Partner is entitled as provided in this Agreement, together with
all
obligations of the General Partner to comply with the terms and
provisions of
this Agreement.
`General Partner Unit' means the Unit representing the General
Partner
Interest and having the rights and obligations specified with
respect to the
General Partner Interest in this Agreement.
`General Partner Unitholder' means a Unitholder holding the General
Partner Unit.
`Group' means a Person which, with or through any of its Affiliates
or
Associates, has any agreement, arrangement or understanding for the
purpose of
acquiring, holding, voting (except voting pursuant to a revocable
proxy or
consent given to such Person in response to a proxy or consent
solicitation
made to 10 or more Persons) or disposing of any Partnership
Securities with any
other Person that beneficially owns, or whose Affiliates or
Associates
beneficially own, directly or indirectly, Partnership Securities.
`Group Member' means a member of the Partnership Group.
`Indebtedness', as used in Section 7.10(b), means, as applied to
any
Person, without duplication, any indebtedness, exclusive of
deferred taxes, (i)
in respect of borrowed money (whether or not the recourse of the
lender is to
the whole of the assets of such Person or only to a portion
thereof); (ii)
evidenced by bonds, notes, debentures or similar instruments or
letters of
credit in support of bonds, notes, debentures or similar
instruments; (iii)
representing the balance deferred and unpaid of the purchase price
of any
property, if and to the extent such indebtedness would appear as a
liability on
a balance sheet of such Person prepared in accordance with U.S.
GAAP (but
excluding trade accounts payable arising in the ordinary course of
business
that are not overdue by more than 90 days or are being contested by
such Person
in good faith); (iv) any Capitalized Lease Obligations of such
Person; and (v)
Indebtedness of others guaranteed by such Person, including,
without
limitation, every obligation of such Person (A) to purchase or pay
(or advance
or supply funds for the purchase or payment of) such Indebtedness
or to
purchase (or to advance or supply funds for the purchase of) any
security for
the payment of such Indebtedness, or (B) to maintain working
capital, equity
capital or other financial statement condition or liquidity of the
primary
obligor so as to enable the primary obligor to pay such
Indebtedness.
`Indemnitee' means (a) the members of the Board of Supervisors or
the
members of the board of supervisors of the Operating Partnership or
any other
Group Member, (b) the General Partner, any Departing Partner and
any Person who
is or was an Affiliate of the General Partner or any Departing
Partner, (c) any
Person who is or was a member, partner, director, officer,
employee, agent or
trustee of any Group Member, the General Partner or any Departing
Partner or
any Affiliate of any Group
6
Member, the General Partner or any Departing Partner and (d) any
Person who is
or was serving at the request of the Board of Supervisors, the
General Partner
or any Departing Partner or any Affiliate of the General Partner or
any
Departing Partner as a member, partner, director, officer,
employee, partner,
agent, fiduciary or trustee of another Person, in each case, acting
in such
capacity; provided, that a Person shall not be an Indemnitee by
reason of
providing, on a fee-for-services basis, trustee, fiduciary or
custodial
services.
`Initial General Partner' has the meaning assigned to such term in
the
Recitals to this Agreement.
`Initial Limited Partners' means the .initial limited partner and
the
initial underwriters of the Partnership.
`Interested Unitholder' means any Person, including its Affiliates
and
Associates (other than the Partnership or any Subsidiary of the
Partnership,
any employee benefit plan maintained by the Partnership or any
Subsidiary
thereof or any trustee or fiduciary with respect to any such plan
when acting
in such capacity), that:
(i) is, or was at any time within the three-year period immediately
prior
to the date in question, the Beneficial Owner of fifteen percent
(15%) or more
of the then Outstanding Units and who did not become the Beneficial
Owner of
such amount of Units pursuant to a transaction that (x) was
approved by the
affirmative vote of a majority of the entire Board of Supervisors;
or (y)
resulted in such Person becoming the Beneficial Owner of at least
85% of the
then Outstanding Units (excluding Units owned by Officers and
Supervisors of
the Partnership).
(ii) is an assignee of, or has otherwise succeeded to, any Units of
which
an Interested Unitholder was the Beneficial Owner at any time
within the
three-year period immediately prior to the date in question, if
such assignment
or succession occurred in the course of a transaction, or series of
transactions, not involving a public offering within the meaning of
the
Securities Act.
For the purpose of determining whether a Person is an Interested
Unitholder, the Partnership Interests that may be issuable or
exchangeable by
the Partnership to the Interested Unitholder pursuant to any
agreement,
arrangement or understanding, or upon the exercise of conversion
rights,
warrants or options, or otherwise, shall be included as being owned
by such
Person, but not any other Partnership Interests that may be
issuable or
exchangeable by the Partnership pursuant to any agreement,
arrangement or
understanding, or upon the exercise of conversion rights, warrants
or options,
or otherwise, to any Person who is not the Interested Unitholder.
`Limited Partner' means, unless the context otherwise requires, (a)
each
Initial Limited Partner, each Substituted Limited Partner, each
Additional
Limited Partner and any Departing Partner upon the change of its
status from
General Partner to Limited Partner pursuant to Section 11.3, and
(b) solely for
purposes of Articles V, VI, VII and IX and Sections 12.3 and 12.4,
each
Assignee.
`Limited Partner Interest' means the ownership interest of a
Limited
Partner in the Partnership which is evidenced by Common Units or
other
Partnership Securities and includes any and all benefits to which a
Limited
Partner is entitled as provided in this Agreement, together with
all
obligations of a Limited Partner to comply with the terms and
provisions of
this Agreement.
`Liquidation Date' means in respect of any event giving rise to the
dissolution of the Partnership, the date on which such event
occurs.
`Liquidator' means one or more Persons selected by the Board of
Supervisors to perform the functions described in Section 12.3.
`Merger Agreement' has the meaning assigned to such term in Section
14.1.
`National Securities Exchange' means an exchange registered with
the
Commission under Section 6(a) of the Securities Exchange Act of
1934, as
amended, supplemented or restated from time to time, and any
successor to such
statute, or the Nasdaq Stock Market or any successor thereto.
`Net Agreed Value' means, (a) in the case of any Contributed
Property, the
Agreed Value of such property reduced by any liabilities either
assumed by the
Partnership upon such contribution or to which
7
such property is subject when contributed, and (b) in the case of
any property
distributed to a Partner or Assignee by the Partnership, the
Partnership's
Carrying Value of such property (as adjusted pursuant to Section
5.5(d)(ii)) at
the time such property is distributed, reduced by any indebtedness
either
assumed by such Partner or Assignee upon such distribution or to
which such
property is subject at the time of distribution, in either case, as
determined
under Section 752 of the Code.
`Net Loss' means, for any taxable year, the excess, if any, of the
Partnership's items of loss and deduction for such taxable year
over the
Partnership's items of income and gain for such taxable year. The
items
included in the calculation of Net Loss shall be determined in
accordance with
Section 5.5(b) and shall not include any items specially allocated
under
Section 6.1(e).
`Non-citizen Assignee' means a Person whom the Board of Supervisors
has
determined in its discretion does not constitute an Eligible
Citizen and as to
whose Partnership Interest the General Partner has become the
Substituted
Limited Partner, pursuant to Section 4.10.
`Nonrecourse Built-in Gain' means, with respect to any Contributed
Properties or Adjusted Properties that are subject to a mortgage or
pledge
securing a Nonrecourse Liability, the amount of any taxable gain
that would be
allocated to the Partners pursuant to Sections 6.2(b)(i)(A),
6.2(b)(ii)(A) and
6.2(b)(iii) if such properties were disposed of in a taxable
transaction in
full satisfaction of such liabilities and for no other
consideration.
`Nonrecourse Deductions' means any and all items of loss, deduction
or
expenditures (including, without limitation, any expenditure
described in
Section 705(a)(2)(B) of the Code) that, in accordance with the
principles of
Treasury Regulation Section 1.704-2(b), are attributable to a
Nonrecourse
Liability.
`Nonrecourse Liability' has the meaning set forth in Treasury
Regulation
Section 1.752-1(a)(2).
Officers' means the Chief Executive Officer, the President, any
Vice
Presidents, the Secretary, the Treasurer, any Assistant Secretaries
or
Assistant Treasurers, and any other officers of the Partnership
appointed by
the Board of Supervisors pursuant to Section 7.8.
`Operating Partnership' means Suburban Propane, L.P., a Delaware
limited
partnership, and any successors thereto.
`Operating Partnership Agreement' means the Third Amended and
Restated
Agreement of Limited Partnership of Suburban Propane, L.P., as it
may be
amended, supplemented or restated from time to time.
`Opinion of Counsel' means a written opinion of counsel (who may be
regular counsel to the Partnership or the General Partner or any of
their
Affiliates) acceptable to the Board of Supervisors in its
reasonable
discretion.
`Organizational Limited Partner' means Quantum Chemical
Corporation, in
its capacity as the organizational limited partner of the
Partnership.
`Original Agreement' has the meaning assigned to such term in the
Recitals
to this Agreement.
`Outstanding' means, with respect to Partnership Securities, all
Partnership Securities that are issued by the Partnership and
reflected as
outstanding on the Partnership's books and records as of the date
of
determination.
`Partner Nonrecourse Debt' has the meaning set forth in Treasury
Regulation Section 1.704-2(b)(4).
`Partner Nonrecourse Debt Minimum Gain' has the meaning set forth
in
Treasury Regulation Section 1.704-2(i)(2).
`Partner Nonrecourse Deductions' means any and all items of loss,
deduction or expenditure (including, without limitation, any
expenditure
described in Section 705(a)(2)(B) of the Code) that, in accordance
with the
principles of Treasury Regulation Section 1.704-2(i), are
attributable to a
Partner Nonrecourse Debt.
`Partners' means the General Partner and the Limited Partners.
`Partnership' means Suburban Propane Partners, L.P., a Delaware
limited
partnership, and any successors thereto.
8
`Partnership Agreement' or "Agreement" means this Third Amended and
Restated Agreement of Limited Partnership of Suburban Propane
Partners, L.P.,
as it may be amended, supplemented or restated from time to time.
`Partnership Group' means the Partnership, the Operating
Partnership and
any Subsidiary of either such entity, treated as a single
consolidated entity.
`Partnership Interest' means an interest in the Partnership, which
shall
include General Partner Interests and Limited Partner Interests.
`Partnership Minimum Gain' means that amount determined in
accordance with
the principles of Treasury Regulation Section 1.704-2(d).
`Partnership Security' means any class or series of Common Units,
any
option, right, warrant or appreciation rights relating thereto, or
any other
type of equity interest that the Partnership may lawfully issue, or
any
unsecured or secured debt obligation of the Partnership that is
convertible
into any class or series of equity interests of the Partnership.
`Percentage Interest' means as of the date of such determination,
(a) as
to any Partner or Assignee holding Common Units, the product of (i)
100% less
the percentage applicable to clause (b) multiplied by (ii) the
quotient of the
number of Common Units held by such Partner or Assignee divided by
the total
number of all Outstanding Common Units and (b) as to the holders of
additional
Partnership Securities issued by the Partnership in accordance with
Section
5.6, the percentage established as a part of such issuance. The
General
Partner's Percentage Interest with respect to its General Partner
Unit and
General Partner Interest shall be zero.
`Person' means an individual or a corporation, limited liability
company,
partnership, limited liability partnership, joint venture, trust,
unincorporated organization, association, government agency or
political
subdivision thereof or other entity.
`Pro Rata' means (a) when modifying Units or any class thereof,
apportioned equally among all designated Units in accordance with
their
Percentage Interests, and (b) when modifying Partners and
Assignees,
apportioned among all Partners and Assignees in accordance with
their
Percentage Interests.
`Proxy Statement' means the definitive Proxy Statement of the
Partnership
on Schedule 14A under the Securities Exchange Act of 1934, as
amended, filed
with the Commission for the purpose of soliciting the votes of the
Unitholders,
to approve the Partnership Agreement and the Exchange Agreement and
the
transactions contemplated thereby, as it has been or as it may be
amended or
supplemented from time to time.
`Quarter' means, unless the context requires otherwise, a fiscal
quarter
of the Partnership.
`Recapture Income' means any gain recognized by the Partnership
(computed
without regard to any adjustment required by Section 734 or 743 of
the Code)
upon the disposition of any property or asset of the Partnership,
which gain is
characterized as ordinary because it represents the recapture of
deductions
previously taken with respect to such property or asset.
`Record Date' means the date established by the Board of
Supervisors for
determining (a) the identity of the Record Holders entitled to
notice of, or to
vote at, any meeting of Limited Partners or entitled to vote by
ballot or give
approval of Partnership action in writing without a meeting or
entitled to
exercise rights in respect of any lawful action of Limited Partners
or (b) the
identity of Record Holders entitled to receive any report or
distribution.
`Record Holder' means the Person in whose name a Common Unit is
registered
on the books of the Transfer Agent as of the opening of business on
a
particular Business Day, or with respect to a holder of a General
Partner Unit,
the Person in whose name such General Partner Unit, or other
Partnership
Interest is registered on the books which the Board of Supervisors
has caused
to be kept as of the opening of business on such Business Day.
`Redeemable Interests' means any Partnership Interests for which a
redemption notice has been given, and has not been withdrawn,
pursuant to
Section 4.11.
9
`Required Allocations' means (a) any limitation imposed on any
allocation
of Net Losses, and (b) any allocation of an item of income, gain,
loss or
deduction pursuant to Section 6.1(e)(i), 6.1(e)(ii), 6.1(e)(iv),
6.1(e)(vii) or
6.1(e)(ix).
`Restated GP Agreement' has the meaning assigned to such term in
Section
4.6(b).
`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 a
Contributed Property
or Adjusted Property, to the extent such item of gain or loss is
not allocated
pursuant to Section 6.2(b)(i)(A) or 6.2(b)(ii)(A), respectively, to
eliminate
Book-Tax Disparities.
`Securities Act' means the Securities Act of 1933, as amended,
supplemented or restated from time to time and any successor to
such statute.
`Second Partnership Agreement' has the meaning assigned to such
term in
the Recitals to this Agreement.
`Special Approval' means approval by a majority of the members of
the
Audit Committee.
`Subsidiary' means, with respect to any Person, (a) a corporation
of which
more than 50% of the voting power of shares entitled (without
regard to the
occurrence of any contingency) to vote in the election of directors
or other
governing body of such corporation is owned, directly or
indirectly, at the
date of determination, by such Person, by one or more Subsidiaries
of such
Person or a combination thereof, (b) a partnership (whether general
or limited)
in which such Person or a Subsidiary of such Person is, at the date
of
determination, a general or limited partner of such partnership,
but only if
more than 50% of the partnership interests of such partnership
(considering all
of the partnership interests of the partnership as a single class)
is owned,
directly or indirectly, at the date of determination, by such
Person, by one or
more Subsidiaries of such Person, or a combination thereof, or (c)
any other
Person (other than a corporation or a partnership) in which such
Person, one or
more Subsidiaries of such Person, or a combination thereof,
directly or
indirectly, at the date of determination, has (i) at least a
majority ownership
interest or (ii) the power to elect or direct the election of a
majority of the
directors or other governing body of such Person.
`Substituted Limited Partner' means a Person who is admitted as a
Limited
Partner to the Partnership pursuant to Section 10.2 in place of and
with all
the rights of a Limited Partner and who is shown as a Limited
Partner on the
books and records of the Partnership.
`Supervisors' means the members of the Board of Supervisors who are
elected as such in accordance with the provisions of Article VII.
`Surviving Business Entity' has the meaning assigned to such term
in
Section 14.2(b).
`Trading Day' means a day on which the principal National
Securities
Exchange on which the Units of any class are listed or admitted to
trading is
open for the transaction of business or, if Units of a class are
not listed or
admitted to trading on any National Securities Exchange, a day on
which banking
institutions in New York City generally are open.
`Transfer' has the meaning assigned to such term in Section 4.4(a).
`Transfer Agent' means such bank, trust company or other Person
(including
the Partnership, the General Partner or one of its Affiliates) as
shall be
appointed from time to time by the Board of Supervisors to act as
registrar and
transfer agent for the Common Units or other Partnership
Securities.
`Transfer Application' means an application and agreement for
transfer of
Units in the form set forth on the back of a Certificate or in a
form
substantially to the same effect in a separate instrument.
`Tri-Annual Meeting' means the meeting of Limited Partners to be
held
every third year, at which meeting the Board of Supervisors shall
be elected,
and such other business transacted as may properly be brought
before the
meeting.
`Unit' means a Partnership Interest of a Partner or Assignee in the
Partnership and shall include Common Units and the General Partner
Unit.
10
`Unitholders' means the holders of Common Units and the General
Partner
Unit.
`Unrealized Gain' attributable to any item of Partnership property
means,
as of any date of determination, the excess, if any, of (a) the
fair market
value of such property as of such date (as determined under Section
5.5(d))
over (b) the Carrying Value of such property as of such date (prior
to any
adjustment to be made pursuant to Section 5.5(d) 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 (a) the
Carrying Value
of such property as of such date (prior to any adjustment to be
made pursuant
to Section 5.5(d) as of such date) over (b) the fair market value
of such
property as of such date (as determined under Section 5.5(d)).
`U.S. GAAP' means United States Generally Accepted Accounting
Principles
consistently applied.
`Withdrawal Opinion of Counsel' has the meaning assigned to such
term in
Section 11.1(b).
1.2 CONSTRUCTION.
Unless the context requires otherwise: (a) any pronoun used in this
Agreement shall include the corresponding masculine, feminine or
neuter forms,
and the singular form of nouns, pronouns and verbs shall include
the plural and
vice versa; (b) references to Articles and Sections refer to
Articles and
Sections of this Agreement; and (c) `include' or `includes' means
includes,
without limitation, and `including' means including, without
limitation.
ARTICLE II
ORGANIZATION
2.1 FORMATION.
The Initial General Partner and the Organizational Limited Partner
previously formed the Partnership as a limited partnership upon the
filing on
December 18, 1995 of the Certificate of Limited Partnership with
the Secretary
of State of the State of Delaware pursuant to the provisions of the
Delaware
Act and the execution of the Original Agreement. The General
Partner and the
Limited Partners hereby amend and restate the Second Partnership
Agreement in
its entirety to continue the Partnership as a limited partnership
pursuant to
the provisions of the Delaware Act and to set forth the rights and
obligations
of the Partners and certain matters related thereto. This amendment
and
restatement shall become effective on the date of this Agreement.
Except as
expressly provided to the contrary in this Agreement, the rights
and
obligations of the Partners and the administration, dissolution and
termination
of the Partnership shall be governed by the Delaware Act. All
Partnership
Interests shall constitute personal property of the owner thereof
for all
purposes.
The Initial General Partner has caused the Certificate of Limited
Partnership to be filed with the Secretary of State of the State of
Delaware as
required by the Delaware Act, and the General Partner shall use all
reasonable
efforts to cause to be filed such other certificates or documents
as may be
determined by the Board of Supervisors to be reasonable and
necessary or
appropriate for the formation, continuation, qualification and
operation of a
limited partnership (or a partnership in which the limited partners
have
limited liability) in the State of Delaware or any other state in
which the
Partnership may elect to do business or own property. To the extent
that such
action is determined by the Board of Supervisors to be reasonable
and necessary
or appropriate, the General Partner shall file amendments to and
restatements
of the Certificate of Limited Partnership and do all things to
maintain the
Partnership as a limited partnership (or a partnership in which the
limited
partners have limited liability) under the laws of the State of
Delaware or of
any other state in which the Partnership may elect to do business
or own
property, including in connection with the Exchange Agreement and
the
transactions contemplated thereby. Subject to the provisions of
Section 3.4(a),
the Partnership shall not be required, before or after filing, to
deliver or
mail a copy of the Certificate of Limited Partnership, any
qualification
document or any amendment thereto to any Limited Partner or
Assignee.
2.2 NAME.
The name of the Partnership shall be `Suburban Propane Partners,
L.P.' The
Partnership's business may be conducted under any other name or
names deemed
necessary or appropriate by the Board of
11
Supervisors, including, if consented to by the General Partner in
its sole
discretion, the name of the General Partner. The words `Limited
Partnership,'
`L.P.,' `Ltd.' or similar words or letters shall be included in the
Partnership's name where necessary for the purpose of complying
with the laws
of any jurisdiction that so requires. The Board of Supervisors in
its
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.
2.3 REGISTERED OFFICE; REGISTERED AGENT; PRINCIPAL OFFICE; OTHER
OFFICES.
Unless and until changed by the Board of Supervisors or the Chief
Executive Officer, the registered office of the Partnership in the
State of
Delaware shall be located at Corporation Trust Center, 1209 Orange
Street, New
Castle County, Wilmington, Delaware 19801, and the registered agent
for service
of process on the Partnership in the State of Delaware at such
registered
office shall be The Corporation Trust Company. The principal office
of the
Partnership shall be located at One Suburban Plaza, 240 Route 10
West,
Whippany, New Jersey 07981-0206 or such other place as the Board of
Supervisors
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 Board of Supervisors deems
necessary or
appropriate. The address of the General Partner shall be One
Suburban Plaza,
240 Route 10 West, Whippany, New Jersey 07981-0206 or such other
place as the
General Partner may from time to time designate by notice to the
Limited
Partners.
2.4 PURPOSE AND BUSINESS.
The purpose and nature of the business to be conducted by the
Partnership
shall be to (a) serve as a limited partner in the Operating
Partnership and, in
connection therewith, to exercise all the rights and powers
conferred upon the
Partnership as a limited partner in the Operating Partnership
pursuant to the
Operating Partnership Agreement or otherwise, (b) engage directly
in, or enter
into or form any corporation, partnership, joint venture, limited
liability
company or other arrangement to engage indirectly in, any business
activity
that the Operating Partnership is permitted to engage in by the
Operating
Partnership Agreement and, in connection therewith, exercise all of
the rights
and powers conferred upon the Partnership pursuant to the
agreements relating
to such business activity, (c) engage directly in, or enter into or
form any
corporation, partnership, joint venture, limited liability company
or other
arrangement to engage indirectly in, any business activity that is
approved by
the Board of Supervisors and which lawfully may be conducted by a
limited
partnership organized pursuant to the Delaware Act and, in
connection
therewith, exercise all of the rights and powers conferred upon the
Partnership
pursuant to the agreements relating to such business activity, and
(d) do
anything necessary or appropriate to the foregoing, including the
making of
capital contributions or loans to a Group Member. The Board of
Supervisors has
no obligation or duty to the Partnership, the Limited Partners, or
the
Assignees to propose or approve, and in its discretion may decline
to propose
or approve, the conduct by the Partnership of any business.
2.5 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 in
Section 2.4 and for the protection and benefit of the Partnership.
2.6 POWER OF ATTORNEY.
(a) Each Limited Partner and each Assignee hereby constitutes and
appoints
the Chief Executive Officer and President of the Partnership and,
if a
Liquidator shall have been selected pursuant to Section 12.3, the
Liquidator,
severally (and any successor to the Liquidator by merger, transfer,
assignment,
election or otherwise) and each of their authorized officers and
attorneys-in-fact, as the case may be, with full power of
substitution, as his
true and lawful agent and attorney-in-fact, with full power and
authority in
his name, place and stead, to:
(i) execute, swear to, acknowledge, deliver, file and record in the
appropriate public offices (A) all certificates, documents and
other
instruments (including this Agreement and the Certificate
12
of Limited Partnership and all amendments or restatements thereof)
that the
Board of Supervisors or the Liquidator deems necessary or
appropriate to
form, qualify or continue the existence or qualification of the
Partnership
as a limited partnership (or a partnership in which the limited
partners
have limited liability) in the State of Delaware and in all other
jurisdictions in which the Partnership may conduct business or own
property; (B) all certificates, documents and other instruments
that the
Board of Supervisors or the Liquidator deems necessary or
appropriate to
reflect, in accordance with its terms, any amendment, change,
modification
or restatement of this Agreement; (C) all certificates, documents
and other
instruments (including conveyances and a certificate of
cancellation) that
the Board of Supervisors or the Liquidator deems necessary or
appropriate
to reflect the dissolution and liquidation of the Partnership
pursuant to
the terms of this Agreement; (D) all certificates, documents and
other
instruments relating to the admission, withdrawal, removal or
substitution
of any Partner pursuant to, or other events described in, Article
IV, X, XI
or XII; (E) all certificates, documents and other instruments
relating to
the determination of the rights, preferences and privileges of any
class or
series of Partnership Securities issued pursuant to Section 5.6;
and (F)
all certificates, documents and other instruments (including
agreements and
a certificate of merger) relating to a merger or consolidation of
the
Partnership pursuant to Article XIV; and (ii) execute, swear to,
acknowledge, deliver, file and record all ballots, consents,
approvals,
waivers, certificates, documents and other instruments necessary or
appropriate, in the discretion of the Board of Supervisors or the
Liquidator, to make, evidence, give, confirm or ratify any vote,
consent,
approval, agreement or other action that is made or given by the
Partners
hereunder or is consistent with the terms of this Agreement or is
necessary
or appropriate, in the discretion of the Board of Supervisors or
the
Liquidator, to effectuate the terms or intent of this Agreement;
provided,
that when required by Section 13.3 or any other provision of this
Agreement
that establishes a percentage of the Limited Partners or of the
Limited
Partners of any class or series required to take any action, the
Chief
Executive Officer and President of the Partnership and the
Liquidator may
exercise the power of attorney made in this Section 2.6(a)(ii) only
after
the necessary vote, consent or approval of the Limited Partners or
of the
Limited Partners of such class or series, as applicable.
Nothing contained in this Section 2.6(a) shall be construed as
authorizing the
Board of Supervisors to amend this Agreement except in accordance
with Article
XIII or as may be otherwise expressly provided for in this
Agreement.
(b) The foregoing power of attorney is hereby declared to be
irrevocable
and a power coupled with an interest, and it shall survive and, to
the maximum
extent permitted by law, not be affected by the subsequent death,
incompetency,
disability, incapacity, dissolution, bankruptcy or termination of
any Limited
Partner or Assignee and the transfer of all or any portion of such
Limited
Partner's or Assignee's Partnership Interest and shall extend to
such Limited
Partner's or Assignee's heirs, successors, assigns and personal
representatives. Each such Limited Partner or Assignee hereby
agrees to be
bound by any representation made by the Chief Executive Officer or
President of
the Partnership or the Liquidator acting in good faith pursuant to
such power
of attorney; and each such Limited Partner or Assignee, to the
maximum extent
permitted by law, hereby waives any and all defenses that may be
available to
contest, negate or disaffirm the action of the Chief Executive
Officer or
President of the Partnership or the Liquidator taken in good faith
under such
power of attorney. Each Limited Partner or Assignee shall execute
and deliver
to the Chief Executive Officer or President of the Partnership or
the
Liquidator, within 15 days after receipt of the request therefor,
such further
designation, powers of attorney and other instruments as the Chief
Executive
Officer or President of the Partnership or the Liquidator deems
necessary to
effectuate this Agreement and the purposes of the Partnership.
2.7 TERM.
The term of the Partnership commenced upon the filing of the
Certificate
of Limited Partnership in accordance with the Delaware Act and
shall continue
until the close of Partnership business on September 30, 2085, or
until the
earlier dissolution of the Partnership in accordance with the
provisions of
Article XII.
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2.8 TITLE TO PARTNERSHIP ASSETS.
Title to Partnership assets, whether real, personal or mixed and
whether
tangible or intangible, shall be deemed to be owned by the
Partnership as an
entity, and no Partner or Assignee, individually or collectively,
shall have
any ownership interest in such Partnership assets or any portion
thereof. Title
to any or all of the Partnership assets may be held in the name of
the
Partnership, the General Partner, or one or more nominees, as the
Board of
Supervisors may determine. The General Partner hereby declares and
warrants
that any Partnership assets for which record title is held in the
name of the
General Partner or one or more nominees shall be held by the
General Partner or
nominee for the use and benefit of the Partnership in accordance
with the
provisions of this Agreement; provided, however, that the General
Partner shall
use reasonable efforts to cause record title to such assets (other
than those
assets in respect of which the Board of Supervisors determines that
the expense
and difficulty of conveyancing makes transfer of record title to
the
Partnership impracticable) to be vested in the Partnership as soon
as
reasonably practicable; provided, further, that, prior to an event
of
withdrawal of the General Partner or as soon thereafter as
practicable, the
General Partner shall use reasonable efforts to effect the transfer
of record
title to the Partnership and, prior to any such transfer, will
provide for the
use of such assets in a manner satisfactory to the Board of
Supervisors. All
Partnership assets shall be recorded as the property of the
Partnership in its
books and records, irrespective of the name in which record title
to such
Partnership assets is held.
ARTICLE III
RIGHTS OF LIMITED PARTNERS
3.1 LIMITATION OF LIABILITY.
The Limited Partners and the Assignees shall have no liability
under this
Agreement except as expressly provided in this Agreement or the
Delaware Act.
3.2 MANAGEMENT OF BUSINESS.
No Limited Partner or Assignee (other than the General Partner, or
any of
its Affiliates or any member, officer, director, employee, partner,
agent or
trustee of the General Partner or any of its Affiliates, or any
officer, member
of the board of supervisors or directors, employee or agent of a
Group Member,
in its capacity as such, if such Person shall also be a Limited
Partner or
Assignee) shall participate in the operation, management or control
(within the
meaning of the Delaware Act) of the Partnership's business,
transact any
business in the Partnership's name or have the power to sign
documents for or
otherwise bind the Partnership. Any action taken by any Affiliate
of the
General Partner or any member, officer, director, employee,
partner, agent or
trustee of the General Partner or any of its Affiliates, or any
officer, member
of the board of supervisors or directors, member, partner, employee
or agent of
a Group Member, in its capacity as such, shall not be deemed to be
participation in the control of the business of the Partnership by
a limited
partner of the Partnership (within the meaning of Section 17-303(a)
of the
Delaware Act) and shall not affect, impair or eliminate the
limitations on the
liability of the Limited Partners or Assignees under this
Agreement.
3.3 OUTSIDE ACTIVITIES OF THE LIMITED PARTNERS.
Subject to the provisions of Section 7.12, which shall continue to
be
applicable to the Persons referred to therein, regardless of
whether such
Persons shall also be Limited Partners or Assignees, any Limited
Partner or
Assignee shall be entitled to and may have business interests and
engage in
business activities in addition to those relating to the
Partnership, including
business interests and activities in direct competition with the
Partnership
Group. Neither the Partnership nor any of the other Partners or
Assignees shall
have any rights by virtue of this Agreement in any business
ventures of any
Limited Partner or Assignee.
3.4 RIGHTS OF LIMITED PARTNERS.
(a) In addition to other rights provided by this Agreement or by
applicable law, and except as limited by Section 3.4(b), each
Limited Partner
shall have the right, for a purpose reasonably related to such
Limited
Partner's interest as a limited partner in the Partnership, upon
reasonable
demand and at such Limited Partner's own expense:
14
(i) to obtain true and full information regarding the status of the
business and financial condition of the Partnership;
(ii) promptly after becoming available, to obtain a copy of the
Partnership's federal, state and local tax returns for each year,
provided,
however, that only the requesting Limited Partner's Schedule K-1
will be
included therewith;
(iii) to have furnished to such Limited Partner, upon notification
to
the Partnership, a current list of the name and last known
business,
residence or mailing address of each Partner;
(iv) to have furnished to such Limited Partner, upon notification
to the
Partnership, a copy of this Agreement and the Certificate of
Limited
Partnership and all amendments thereto, together with a copy of the
executed copies of all powers of attorney pursuant to which this
Agreement,
the Certificate of Limited Partnership and all amendments thereto
have been
executed;
(v) to obtain true and full information regarding the amount of
cash and
a description and statement of the Net Agreed Value of any other
Capital
Contribution by each Partner and which each Partner has agreed to
contribute in the future, and the date on which each became a
Partner; and
(vi) to obtain such other information regarding the affairs of the
Partnership as is just and reasonable.
(b) The Board of Supervisors may keep confidential from the Limited
Partners and Assignees, for such period of time as the Board of
Supervisors
deems reasonable, (i) any information that the Board of Supervisors
reasonably
believes to be in the nature of trade secrets or (ii) other
information the
disclosure of which the Board of Supervisors in good faith believes
(A) is not
in the best interests of the Partnership Group, (B) could damage
the
Partnership Group or (C) that any Group Member is required by law
or by
agreements with third parties to keep confidential (other than
agreements with
Affiliates, the primary purpose of which is to circumvent the
obligations set
forth in this Section 3.4).
ARTICLE IV
CERTIFICATES; RECORD HOLDERS; TRANSFER OF PARTNERSHIP INTERESTS;
REDEMPTION OF PARTNERSHIP INTERESTS
4.1 CERTIFICATES.
Upon the Partnership's issuance of Common Units to any Person, the
Partnership shall issue one or more Certificates in the name of
such Person
evidencing the number of such Common Units being so issued.
Certificates shall
be executed on behalf of the Partnership by the Chief Executive
Officer,
President or any Vice President and the Secretary or any Assistant
Secretary of
the Partnership. No Common Unit Certificate shall be valid for any
purpose
until it has been countersigned by the Transfer Agent; provided,
however, that
if the Board of Supervisors elects to issue Common Units in global
form, the
Common Unit Certificates shall be valid upon receipt of a
certificate from the
Transfer Agent certifying that the Common Units have been duly
registered in
accordance with the directions of the Partnership. Any or all the
signatures on
the Certificate may be a facsimile. In case any Officer or Transfer
Agent who
has signed or whose facsimile signature has been placed upon a
Certificate
shall have ceased to be such Officer or Transfer Agent before such
Certificate
is issued, it may be issued by the Partnership with the same effect
as if such
person were such Officer or Transfer Agent at the date of issue.
4.2 MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES.
(a) If any mutilated Certificate is surrendered to the Transfer
Agent, the
appropriate Officers of the Partnership shall execute, and the
Transfer Agent
shall countersign and deliver in exchange therefor, a new
Certificate
evidencing the same number of Units as the Certificate so
surrendered.
(b) The appropriate Officers of the Partnership shall execute, and
the
Transfer Agent shall countersign and deliver (or, in the case of
Common Units
issued in global form, register in accordance with the rules and
regulations of
the Depositary), a new Certificate in place of any Certificate
previously
issued if the Record Holder of the Certificate:
15
(i) makes proof by affidavit, in form and substance satisfactory to
the
Partnership, that a previously issued Certificate has been lost,
destroyed
or stolen;
(ii) requests the issuance of a new Certificate before the Partner
has
notice that the Certificate has been acquired by a purchaser for
value in
good faith and without notice of an adverse claim;
(iii) if requested by the Partnership, delivers to the Partnership
a
bond, in form and substance satisfactory to the Partnership, with
surety or
sureties and with fixed or open penalty as the Partnership may
reasonably
direct, in its sole discretion, to indemnify the Partnership, the
Partners,
the Board of Supervisors, the Partnership's officers, employees,
agents and
other representatives and the Transfer Agent against any claim that
may be
made on account of the alleged loss, destruction or theft of the
Certificate; and
(iv) satisfies any other reasonable requirements imposed by the
Partnership.
If a Limited Partner or Assignee fails to notify the Partnership
within a
reasonable time after such Person has notice of the loss,
destruction or theft
of a Certificate, and a transfer of the Limited Partner Interests
represented
by the lost, destroyed or stolen Certificate is registered before
the
Partnership, the Board of Supervisors or the Transfer Agent
receives such
notification, the Limited Partner or Assignee shall be precluded
from making
any claim against the Partnership, the Board of Supervisors and the
Transfer
Agent for such transfer or for a new Certificate.
(c) As a condition to the issuance of any new Certificate under
this
Section 4.2, the Partnership may require the payment of a sum
sufficient to
cover any tax or other governmental charge that may be imposed in
relation
thereto and any other expenses (including the fees and expenses of
the Transfer
Agent) reasonably connected therewith.
4.3 RECORD HOLDERS.
The Partnership shall be entitled to recognize the Record Holder as
the
Partner or Assignee with respect to any Partnership Interest and,
accordingly,
shall not be bound to recognize any equitable or other claim to or
interest in
such Partnership Interest on the part of any other Person,
regardless of
whether the Partnership shall have actual or other notice thereof,
except as
otherwise provided by law or any applicable rule, regulation,
guideline or
requirement of any National Securities Exchange on which the Units
are listed
for trading. Without limiting the foregoing, when a Person (such as
a broker,
dealer, bank, trust company or clearing corporation or an agent of
any of the
foregoing) is acting as nominee, agent or in some other
representative capacity
for another Person in acquiring and/or holding Units, as between
the
Partnership on the one hand, and such other Persons on the other,
such
representative Person (a) shall be the Limited Partner or Assignee
(as the case
may be) of record and beneficially, (b) must execute and deliver a
Transfer
Application and (c) shall be bound by this Agreement and shall have
the rights
and obligations of a Limited Partner or Assignee (as the case may
be) hereunder
and as provided for herein.
4.4 TRANSFER GENERALLY.
(a) The term `transfer,' when used in this Agreement with respect
to a
Partnership Interest, shall be deemed to refer to a transaction by
which the
General Partner assigns its General Partner Interest to another
Person or by
which the holder of a Limited Partner Interest assigns such Limited
Partner
Interest to another Person who is or becomes a Limited Partner or
an Assignee,
and includes a sale, assignment, gift, pledge, encumbrance,
hypothecation,
mortgage, exchange or any other disposition by law or otherwise, in
whole or in
part.
(b) No Partnership Interest shall be transferred, in whole or in
part,
except in accordance with the terms and conditions set forth in
this Article
IV. Any transfer or purported transfer of a Partnership Interest
not made in
accordance with this Article IV shall be null and void.
(c) Nothing contained in this Agreement shall be construed to
prevent a
disposition by any securityholder of the General Partner of any or
all of the
issued and outstanding equity interests in the General Partner.
16
(d) Nothing contained in this Agreement shall preclude the
settlement of
any transactions involving Partnership Interests entered into
through the
facilities of any National Securities Exchange on which such
Partnership
Interests are listed for trading.
4.5 REGISTRATION AND TRANSFER OF UNITS.
(a) The Partnership shall keep or cause to be kept on behalf of the
Partnership a register in which, subject to such reasonable
regulations as it
may prescribe and subject to the provisions of Section 4.5(b), the
Partnership
will provide for the registration and transfer of Units. The
Transfer Agent is
hereby appointed registrar and transfer agent for the purpose of
registering
Common Units and transfers of such Common Units as herein provided.
The
Partnership shall not recognize transfers of Certificates
representing Units
unless such transfers are effected in the manner described in this
Section 4.5.
Upon surrender for registration of transfer of any Units evidenced
by a
Certificate, and subject to the provisions of Section 4.5(b), the
appropriate
officers on behalf of the Partnership shall execute, and in the
case of Common
Units, the Transfer Agent shall countersign and deliver (or, in the
case of
Common Units issued in global form, register in accordance with the
rules and
regulations of the Depositary), in the name of the holder or the
designated
transferee or transferees, as required pursuant to the holder's
instructions,
one or more new Certificates evidencing the same aggregate number
of Units as
was evidenced by the Certificate so surrendered.
(b) Except as otherwise provided in Section 4.10, the Partnership
shall
not recognize any transfer of Units until the Certificates
evidencing such
Units are surrendered for registration of transfer and such
Certificates are
accompanied by a Transfer Application duly executed by the
transferee (or the
transferee's attorney-in-fact duly authorized in writing). No
charge shall be
imposed by the Partnership for such transfer; provided, that as a
condition to
the issuance of any new Certificate under this Section 4.5, the
Partnership may
require the payment of a sum sufficient to cover any tax or other
governmental
charge that may be imposed with respect thereto.
(c) Units may be transferred only in the manner described in this
Section
4.5. The transfer of any Units and the admission of any new Partner
shall not
constitute an amendment to this Agreement.
(d) Until admitted as a Substituted Limited Partner pursuant to
Section
10.2, the Record Holder of a Common Unit shall be an Assignee in
respect of
such Common Unit. Limited Partners may include custodians,
nominees, or any
other individual or entity in its own or any representative
capacity.
(e) A transferee of a Common Unit who has completed and delivered a
Transfer Application shall be deemed to have (i) requested
admission as a
Substituted Limited Partner, (ii) agreed to comply with and be
bound by and to
have executed this Agreement, (iii) represented and warranted that
such
transferee has the right, power and authority and, if an
individual, the
capacity to enter into this Agreement, (iv) granted the powers of
attorney set
forth in this Agreement and (v) given the consents and approvals
and made the
waivers contained in this Agreement.
4.6 TRANSFER OF A GENERAL PARTNER'S PARTNERSHIP INTEREST.
(a) Any transfer by the General Partner of any portion of its
General
Partner Interest shall be subject to the prior approval of the
Board of
Supervisors. Notwithstanding anything herein to the contrary, no
transfer by
the General Partner of all or any part of its General Partner
Interest to
another Person shall be permitted unless (i) the transferee agrees
to assume
the rights and duties of the General Partner under this Agreement
and the
Operating Partnership Agreement and to be bound by the provisions
of this
Agreement and the Operating Partnership Agreement, (ii) the
Partnership
receives an Opinion of Counsel that such transfer would not result
in the loss
of limited liability of any Limited Partner or of any limited
partner of the
Operating Partnership or cause the Partnership or the Operating
Partnership to
be treated as an association taxable as a corporation or otherwise
to be taxed
as an entity for federal income tax purposes (to the extent not
already so
treated or taxed) and (iii) such transferee also agrees to purchase
all (or the
appropriate portion thereof, if applicable) of the partnership
interest of the
General Partner as the general partner of each other Group Member.
In the case
of a transfer pursuant to and in compliance with this Section 4.6,
the
transferee or successor (as the case may be) shall, subject to
17
compliance with the terms of Section 10.3, be admitted to the
Partnership as a
General Partner simultaneously with the transfer of the General
Partner
Interest, and is hereby authorized to and shall continue the
business of the
Partnership without dissolution.
(b) At any time after the distribution contemplated by the
Distribution,
Release and Lock-up Agreement referred to in the Exchange
Agreement, and for
any reason, the Board of Supervisors, on such terms and conditions
that the
Board of Supervisors shall determine, upon at least ten (10)
Business Days'
written notice to the General Partner, may (i) require the General
Partner to
transfer its General Partner Interest in the Partnership or its
Common Units
(which it holds as a Limited Partner); (ii) require any or all of
the members
of the General Partner to transfer their limited liability company
interests in
the General Partner, in each case to a designee of the Board of
Supervisors,
who may be admitted as a substitute member of the General Partner
by the Board
of Supervisors in accordance with the provisions of the First
Amended and
Restated Operating Agreement of the General Partner, dated as of
the date
hereof (the "Restated GP Agreement"); and (iii) admit a new member
of the
General Partner in accordance with the provisions of the Restated
GP Agreement,
if at any time the sole member of the General Partner ceases to be
a member of
the General Partner. The consideration for the transfer of the
General Partner
Interest shall be $10. The consideration for the transfer of Common
Units by
the General Partner shall be the Current Market Price, determined
as of the
Trading Day immediately preceding the date such Units are
transferred. The
consideration for the transfer of limited liability company
interests by the
members of the General Partner shall be the product of (x) their
percentage
interest in the General Partner and (y) the aggregate Current
Market Price of
all Common Units then owned by the General Partner. If such
transfer, however,
is pursuant to or in connection with a Merger Agreement or other
transaction to
which the Partnership is a party, the consideration for the Common
Units owned
by the General Partner shall be the consideration being paid on
account of the
Common Units in connection with the Merger Agreement or such other
transaction,
and shall be paid in the form of consideration being paid in such
Merger or
other transaction. As of the date of this Agreement, the sole
member of the
General Partner is the Chief Executive Officer of the Partnership.
If at any
time, such member shall cease to be the Chief Executive Officer of
the
Partnership, he shall have the right, by written notice, to require
the Board
of Supervisors to designate a transferee for his limited liability
company
interests in the General Partner within thirty (30) days of
receiving such
notice for the consideration and otherwise in accordance with the
provisions of
this Section 4.6(b). If the Board of Supervisors admits a new
member of the
General Partner in accordance with the provisions of the Restated
GP Agreement,
the interest of the existing member shall be purchased in
accordance with the
provisions of this Section 4.6(b).
4.7 [DELETED]
4.8 [DELETED]
4.9 RESTRICTIONS ON TRANSFERS.
(a) Notwithstanding the other provisions of this Article IV, no
transfer
of any Partnership Interest shall be made if such transfer would
(i) violate
the then applicable federal or state securities laws or rules and
regulations
of the Commission, any state securities commission or any other
governmental
authorities with jurisdiction over such transfer, (ii) terminate
the existence
or qualification of the Partnership or the Operating Partnership
under the laws
of the jurisdiction of its formation, or (iii) cause the
Partnership or the
Operating Partnership to be treated as an association taxable as a
corporation
or otherwise to be taxed as an entity for federal income tax
purposes (to the
extent not already so treated or taxed).
(b) The Board of Supervisors may impose restrictions on the
transfer of
Partnership Interests if a subsequent Opinion of Counsel determines
that such
restrictions are necessary to avoid a significant risk of the
Partnership or
the Operating Partnership becoming taxable as a corporation or
otherwise to be
taxed as an entity for federal income tax purposes. The
restrictions may be
imposed by making such amendments to this Agreement as the Board of
Supervisors
may determine to be necessary or appropriate to impose such
restrictions
without the consent of any Partner; provided, however, that any
amendment that
the Board of Supervisors believes, in the exercise of its
reasonable
discretion, could result in the delisting or suspension of trading
of any class
of Units on any National Securities Exchange on which such class of
Units is
then traded must be approved by the holders of at least a majority
of the
Outstanding Units of such class.
18
4.10 CITIZENSHIP CERTIFICATES; NON-CITIZEN ASSIGNEES.
(a) If any Group Member is or becomes subject to any federal, state
or
local law or regulation that, in the reasonable determination of
the Board of
Supervisors, creates a substantial risk of cancellation or
forfeiture of any
property in which the Group Member has an interest based on the
nationality,
citizenship or other related status of a Limited Partner or
Assignee, the Board
of Supervisors may request any Limited Partner or Assignee to
furnish to the
Board of Supervisors, within 30 days after receipt of such request,
an executed
Citizenship Certification or such other information concerning his
nationality,
citizenship or other related status (or, if the Limited Partner or
Assignee is
a nominee holding for the account of another Person, the
nationality,
citizenship or other related status of such Person) as the Board of
Supervisors
may request. If a Limited Partner or Assignee fails to furnish to
the Board of
Supervisors within the aforementioned 30-day period such
Citizenship
Certification or other requested information or if upon receipt of
such
Citizenship Certification or other requested information the Board
of
Supervisors determines, with the advice of counsel, that a Limited
Partner or
Assignee is not an Eligible Citizen, the Partnership Interests
owned by such
Limited Partner or Assignee shall be subject to redemption in
accordance with
the provisions of Section 4.11. In addition, the General Partner
may require
that the status of any such Limited Partner or Assignee be changed
to that of a
Non-citizen Assignee and, thereupon, the General Partner shall be
substituted
for such Non-citizen Assignee as the Limited Partner in respect of
such
Non-citizen Assignee's Units.
(b) The General Partner shall, in exercising voting rights in
respect of
Units held by it on behalf of Non-citizen Assignees, distribute the
votes in
the same ratios as the votes of Limited Partners in respect of
Units other than
those of Non-citizen Assignees are cast, either for, against or
abstaining as
to the matter being voted upon.
(c) Upon dissolution of the Partnership, a Non-citizen Assignee
shall have
no right to receive a distribution in kind pursuant to Section 12.4
but shall
be entitled to the cash equivalent thereof as determined in the
sole discretion
of the Board of Supervisors, and the Partnership shall provide cash
in exchange
for an assignment of the Non-citizen Assignee's share of the
distribution in
kind. Such payment and assignment shall be treated for Partnership
purposes as
a purchase by the Partnership from the Non-citizen Assignee of his
Partnership
Interest (representing his right to receive his share of such
distribution in
kind).
(d) At any time after a Non-citizen Assignee can and does certify
that it
has become an Eligible Citizen, a Non-citizen Assignee may, upon
application to
the Board of Supervisors, request admission as a Substituted
Limited Partner
with respect to any Units of such Non-citizen Assignee not redeemed
pursuant to
Section 4.11, and upon admission pursuant to Section 10.2, the
General Partner
shall cease to be deemed to be the Limited Partner in respect of
the
Non-citizen Assignee's Units.
4.11 REDEMPTION OF PARTNERSHIP INTERESTS OF NON-CITIZEN ASSIGNEES.
(a) If at any time a Limited Partner or Assignee fails to furnish a
Citizenship Certification or other information requested within the
30-day
period specified in Section 4.9(a), or if upon receipt of such
Citizenship
Certification or other information the Board of Supervisors
determines, with
the advice of counsel, that a Limited Partner or Assignee is not an
Eligible
Citizen, the Partnership may, unless the Limited Partner or
Assignee
establishes to the satisfaction of the Board of Supervisors that
such Limited
Partner or Assignee is an Eligible Citizen or has transferred its
Partnership
Interests to a Person who is an Eligible Citizen and who furnishes
a
Citizenship Certification to the Board of Supervisors prior to the
date fixed
for redemption as provided below, redeem the Partnership Interest
of such
Limited Partner or Assignee as follows:
(i) The Board of Supervisors shall, not later than the 30th day
before
the date fixed for redemption, give notice of redemption to the
Limited
Partner or Assignee, at its last address designated on the records
of the
Partnership or the Transfer Agent, by registered or certified mail,
postage
prepaid. The notice shall be deemed to have been given when so
mailed. The
notice shall specify the Redeemable Interests, the date fixed for
redemption, the place of payment, that payment of the redemption
price will
be made upon surrender of the Certificate evidencing the Redeemable
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Interests and that on and after the date fixed for redemption no
further
allocations or distributions to which the Limited Partner or
Assignee would
otherwise be entitled in respect of the Redeemable Interests will
accrue or
be made.
(ii) The aggregate redemption price for Redeemable Interests shall
be an
amount equal to the Current Market Price (the date of determination
of
which shall be the date fixed for redemption) of Partnership
Interests of
the class to be so redeemed multiplied by the number of Partnership
Interests of each such class included among the Redeemable
Interests. The
redemption price shall be paid, in the discretion of the Board of
Supervisors, in cash or by delivery of a promissory note of the
Partnership
in the principal amount of the redemption price, bearing interest
at the
rate of 10% annually and payable in three equal annual installments
of
principal together with accrued interest, commencing one year after
the
redemption date.
(iii) Upon surrender by or on behalf of the Limited Partner or
Assignee,
at the place specified in the notice of redemption, of the
Certificate
evidencing the Redeemable Interests, duly endorsed in blank or
accompanied
by an assignment duly executed in blank, the Limited Partner or
Assignee or
his duly authorized representative shall be entitled to receive the
payment
therefor.
(iv) After the redemption date, Redeemable Interests shall no
longer
constitute issued and Outstanding Partnership Interests.
(b) The provisions of this Section 4.11 shall also be applicable to
Partnership Interests held by a Limited Partner or Assignee as
nominee of a
Person determined to be other than an Eligible Citizen.
(c) Nothing in this Section 4.11 shall prevent the recipient of a
notice
of redemption from transferring such Person's Partnership Interests
before the
redemption date if such transfer is otherwise permitted under this
Agreement.
Upon receipt of notice of such a transfer, the Board of Supervisors
shall
withdraw the notice of redemption, provided the transferee of such
Partnership
Interests certifies in the Transfer Application that he is an
Eligible Citizen.
If the transferee fails to make such certification, such redemption
shall be
effected from the transferee on the original redemption date.
ARTICLE V
CAPITAL CONTRIBUTIONS AND ISSUANCE OF PARTNERSHIP INTERESTS
5.1 [DELETED.]
5.2 [DELETED.]
5.3 OUTSTANDING GENERAL PARTNER UNIT; OWNERSHIP OF COMMON UNITS.
(a) As of the date hereof, the General Partner owns 1 General
Partner Unit
representing 100% of the General Partner Interest held by the
General Partner,
and after giving effect to the distribution of the Common Units
received
pursuant to the Exchange Agreement, 784 Common Units in its
capacity as a
limited partner of the Partnership. The General Partner agrees that
without the
consent of the Board of Supervisors, the General Partner shall not
sell or
otherwise transfer its General Partner Unit or any of such Common
Units, nor
purchase additional Common Units.
(b) Except as provided in Section 12.8, the General Partner shall
not be
required nor permitted to make any additional Capital Contributions
to the
Partnership in its capacity as a general partner of the
Partnership.
5.4 INTEREST AND WITHDRAWAL.
No interest shall be paid by the Partnership on Capital
Contributions. No
Partner or Assignee shall be entitled to the withdrawal or return
of its
Capital Contribution, except to the extent, if any, that
distributions made
pursuant to this Agreement or in connection with the winding up of
the
Partnership may be considered by applicable law to be withdrawals
or returns of
Capital Contributions and then only to the extent provided for in
this
Agreement. Except to the extent expressly provided in this
Agreement,
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no Partner or Assignee shall have priority over any other Partner
or Assignee
either as to the return of Capital Contributions or as to profits,
losses or
distributions. Any such return shall be a compromise to which all
Partners and
Assignees agree within the meaning of 17-502(b) of the Delaware
Act.
5.5 CAPITAL ACCOUNTS.
(a) The Partnership shall maintain for each Partner (or a
beneficial owner
of Partnership Interests held by a nominee in any case in which the
nominee has
furnished the identity of such owner to the Partnership in
accordance with
Section 6031(c) of the Code or any other method acceptable to the
Board of
Supervisors in its sole discretion) owning a Partnership Interest a
separate
Capital Account with respect to such Partnership Interest in
accordance with
the rules of Treasury Regulation Section 1.704-1(b)(2)(iv). Such
Capital
Account shall be increased by (i) the amount of all Capital
Contributions made
to the Partnership with respect to such Partnership Interest
pursuant to this
Agreement (or any previous partnership agreement of the
Partnership) and (ii)
all items of Partnership income and gain (including, without
limitation, income
and gain exempt from tax) computed in accordance with Section
5.5(b) and
allocated with respect to such Partnership Interest pursuant to
Section 6.1,
and decreased by (x) the amount of cash or the Net Agreed Value of
all actual
and deemed distributions of cash or property made with respect to
such
Partnership Interest pursuant to this Agreement (or any previous
partnership
agreement of the Partnership) and (y) all items of Partnership
deduction and
loss computed in accordance with Section 5.5(b) and allocated with
respect to
such Partnership Interest pursuant to Section 6.1.
(b) For purposes of computing the amount of any item of income,
gain, loss
or deduction which is to be allocated pursuant to Article VI and is
to be
reflected in the Partners' Capital Accounts, the determination,
recognition and
classification of any such item shall be the same as its
determination,
recognition and classification for federal income tax purposes
(including,
without limitation, any method of depreciation, cost recovery or
amortization
used for that purpose), provided, that:
(i) Solely for purposes of this Section 5.5, the Partnership shall
be
treated as owning directly its proportionate share (as determined
by the
Board of Supervisors based upon the provisions of the Operating
Partnership
Agreement) of all property owned by the Operating Partnership or
any other
Subsidiary that is classified as a partnership for federal income
tax
purposes.
(ii) All fees and other expenses incurred by the Partnership to
promote
the sale of (or to sell) a Partnership Interest that can neither be
deducted nor amortized under Section 709 of the Code, if any,
shall, for
purposes of Capital Account maintenance, be treated as an item of
deduction
at the time such fees and other expenses are incurred and shall be
allocated among the Partners pursuant to Section 6.1.
(iii) Except as otherwise provided in Treasury Regulation Section
1.704-1(b)(2)(iv)(m), the computation of all items of income, gain,
loss
and deduction shall be made without regard to any election under
Section
754 of the Code which may be made by the Partnership and, as to
those items
described in Section 705(a)(1)(B) or 705(a)(2)(B) of the Code,
without
regard to the fact that such items are not includable in gross
income or
are neither currently deductible nor capitalized for federal income
tax
purposes. To the extent an adjustment to the adjusted tax basis of
any
Partnership asset pursuant to Section 734(b) or 743(b) of the Code
is
required, pursuant to Treasury Regulation Section
1.704-1(b)(2)(iv)(m) to
be taken into account in determining Capital Accounts, the amount
of such
adjustment in the Capital Accounts shall be treated as an item of
gain or
loss.
(iv) Any income, gain or loss attributable to the taxable
disposition of
any Partnership property shall be determined as if the adjusted
basis of
such property as of such date of disposition were equal in amount
to the
Partnership's Carrying Value with respect to such property as of
such date.
(v) In accordance with the requirements of Section 704(b) of the
Code,
any deductions for depreciation, cost recovery or amortization
attributable
to any Contributed Property shall be determined as if the adjusted
basis of
such property on the date it was acquired by the Partnership were
equal to
the Agreed Value of such property. Upon an adjustment pursuant to
Section
5.5(d) to the Carrying Value of any Partnership property subject to
depreciation, cost recovery or amortization, any further deductions
for
such depreciation, cost recovery or amortization attributable to
such
21
property shall be determined (A) as if the adjusted basis of such
property
were equal to the Carrying Value of such property immediately
following
such adjustment and (B) using a rate of depreciation, cost recovery
or
amortization derived from the same method and useful life (or, if
applicable, the remaining useful life) as is applied for federal
income tax
purposes; provided, however, that, if the asset has a zero adjusted
basis
for federal income tax purposes, depreciation, cost recovery or
amortization deductions shall be determined using any reasonable
method
that the Board of Supervisors may adopt.
(vi) If the Partnership's adjusted basis in a depreciable or cost
recovery property is reduced for federal income tax purposes
pursuant to
Section 48(q)(1) or 48(q)(3) of the Code, the amount of such
reduction
shall, solely for purposes hereof, be deemed to be an additional
depreciation or cost recovery deduction in the year such property
is placed
in service and shall be allocated among the Partners pursuant to
Section
6.1. Any restoration of such basis pursuant to Section 48(q)(2) of
the Code
shall, to the extent possible, be allocated in the same manner to
the
Partners to whom such deemed deduction was allocated.
(c) A transferee of a Partnership Interest shall succeed to a pro
rata
portion of the Capital Account of the transferor relating to the
Partnership
Interest so transferred.
(d) (i) In accordance with Treasury Regulation Section
1.704-1(b)(2)(iv)(f), on an issuance of additional Units for cash
or
Contributed Property, the Capital Account of all Partners and the
Carrying
Value of each Partnership property immediately prior to such
issuance shall be
adjusted upward or downward to reflect any Unrealized Gain or
Unrealized Loss
attributable to such Partnership property, as if such Unrealized
Gain or
Unrealized Loss had been recognized on an actual sale of each such
property
immediately prior to such issuance and had been allocated to the
Partners at
such time pursuant to Section 6.1. In determining such Unrealized
Gain or
Unrealized Loss, the aggregate cash amount and fair market value of
all
Partnership assets (including, without limitation, cash or cash
equivalents)
immediately prior to the issuance of additional Units shall be
determined by
the Board of Supervisors using such reasonable method of valuation
as it may
adopt; provided, however, that the Board of Supervisors, in
arriving at such
valuation, must take fully into account the fair market value of
the
Partnership Interests of all Partners at such time. The Board of
Supervisors
shall allocate such aggregate value among the assets of the
Partnership (in
such manner as it determines in its discretion to be reasonable) to
arrive at a
fair market value for individual properties.
(ii) In accordance with Treasury Regulation Section
1.704-1(b)(2)(iv)(f),
immediately prior to any actual or deemed distribution to a Partner
of any
Partnership property (other than a distribution of cash that is not
in
redemption or retirement of a Partnership Interest), the Capital
Accounts of
all Partners an
