SECOND AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF DUKE-WEEKS REALTY LIMITED PARTNERSHIPLimited Partnership Agreement |
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Exhibit 3.2(i)
SECOND AMENDED AND RESTATED OF DUKE-WEEKS REALTY LIMITED PARTNERSHIP
Dated as of July 2, 1999
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SECOND AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP Duke Realty Investments, Inc., an Indiana corporation to be known as Duke-Weeks Realty Corporation and the Persons whose names are set forth on Exhibit A hereto, hereby adopt and agree as provided in the following Second Amended and Restated Agreement of Limited Partnership (the “Agreement”). GENERAL PROVISIONS Section 1.01. Name. The name of the Partnership prior to the date of this Agreement was Duke Realty Limited Partnership. From and after the date of this Agreement, the name of the Partnership is Duke-Weeks Realty Limited Partnership. Section 1.02. Place of Business. The specified office of the Partnership shall be 8888 Keystone Crossing, Suite 1200, Indianapolis, Indiana 46240, or such location as may be selected from time to time by the General Partner. Section 1.03. Continuation and Term. The Partners agree that (i) the Persons listed in Exhibit B are hereby admitted to the Partnership as Limited Partners, with the result that, at the date of this Agreement, the Limited Partners are the Persons listed in Exhibit A (other than the General Partner) and (ii) the Amended and Restated Agreement of Limited Partnership dated October 4, 1993 (the “Prior Partnership Agreement”) that previously evidenced the Partnership is hereby amended and restated in its entirety, subject to the terms provided herein, and the Partnership is continued without interruption under and pursuant to the terms and provisions of the Act; provided however, this Second Amended and Restated Agreement of Limited Partnership shall become effective only upon the effective time of the Merger (as hereinafter defined). If such effective time of the Merger does not occur, this Agreement shall have no effect and the Partnership will continue pursuant to the terms and conditions set forth in the Prior Partnership Agreement. The term of the Partnership shall extend until December 31, 2099, subject to extension as provided in Section 6.05, unless sooner terminated as hereinafter provided. Section 1.04. Definitions. The following terms have the following meanings herein: “Act” means the Indiana Revised Uniform Limited Partnership Act, as now or hereafter amended. “Additional Limited Partner” means a Person admitted to the Partnership as a Limited Partner pursuant to Sections 2.02 and 4.02, and who is shown as such on the books and records of the Partnership. “Adjusted Capital Account” means, with respect to any Partner, such Partner’s Capital Account as of the end of the relevant fiscal year or other period, after giving effect to the following adjustments: (i) Credit to such Capital Account any amounts which such Partner is obligated to restore pursuant to this Agreement or an Indemnity Agreement, deemed obligated to restore to the Partnership pursuant to Section 1.704-l(b)(2)(ii)(c) of the Treasury Regulations or deemed obligated to restore to the Partnership pursuant to Sections 1.704-2(g)(1) and 1.704-2(i)(5) of the Treasury Regulations, and (ii) Debit to such Capital Account the items described in Section 1.704-1(b)(2)(ii)(d)(4), (5) and (6) of the Treasury Regulations.
“Affiliate” means a Person who, with respect to another person, directly or indirectly controls, is controlled by or is under common control with such other Person. “Aggregate Indemnity Amount” means with respect to the Indemnitor Partners, as a group, the aggregate amount of Indemnity Amounts, if any, of the Indemnitor Partners, as determined on the date in question. “Aggregate Restoration Amount” means with respect to the Obligated Partners, as a group, the aggregate amount of the Restoration Amounts, if any, of the Obligated Partners, as determined on the date in question. “Agreed Value” means (i) in the case of any property owned by the Partnership as of the date immediately prior to the Merger, the fair market value of such property; and (ii) in the case of any Contributed Property contributed pursuant to or subsequent to the Merger, the fair market value of such property or other consideration at the time of contribution, in each case as determined by the General Partner using such reasonable method of valuation as it may adopt, reduced in either case by any liabilities either assumed by the Partnership upon such contribution or to which such property is subject when contributed. “Assignee” means a Person who has acquired a direct beneficial interest in the Partnership but who has not become a Substituted Partner. “Assignee of Record” means an Assignee whose beneficial interest in the Partnership has been recorded on the books of the Partnership and is the subject of a written assignment, the effective date of which has passed. “Assignment” means, for purposes of Article VII with regard to Units, any sale, assignment, transfer, pledge, encumbrance or other disposition of, or the granting of a security interest in, one or more Units, including without limitation a transfer in connection with a dissolution, merger, consolidation or similar action of a Partner or an Assignee, but does not include a redemption or acquisition of Units from a Limited Partner pursuant to Section 7.07. “Assign” means to effect an Assignment. “Bankruptcy” means, with respect to a Person, the happening of any of the following: (i) The entry by a court or governmental agency having jurisdiction in the premises of a decree or order for relief in respect of the Person in an involuntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official of such Person, or for any substantial part of such Person’s property or ordering the winding up or liquidation of such Person’s affairs, and such decree or order remaining unstayed and in effect for a period of sixty (60) consecutive days; or (ii) The consent by the Person to the appointment or taking possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official of any substantial part of such Person’s property, or the filing of a pleading in any court of record admitting in writing the inability of the Person to pay his, her or its debts as they come due; or (iii) The commencement by the Person of a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or the consent by such Person to the entry of an order for relief in an involuntary case under any such law; or (iv) The making by the Person of a general assignment for the benefit of creditors. 2
“Business Day” means any day except a Saturday, Sunday or other day on which commercial banks in New York, New York or Indianapolis, Indiana are authorized or required by law to close. “Capital Account” means, as to any Partner, a book account maintained in accordance with the following provisions: To each Partner’s Capital Account there shall be credited: (i) the Agreed Value of any property other than cash such Partner has contributed to the Partnership as a Capital Contribution; (ii) the amount of cash such Partner has contributed to the Partnership (including any contribution pursuant to Section 4.01 and Section 2.05, and including any payments in satisfaction of Recourse Liabilities made by an Indemnitor Partner pursuant to an Indemnity Agreement); (iii) the amount of Profits allocated to such Partner and any items in the nature of income or profits that are specifically allocated to such Partner pursuant to Section 4.06; and (iv) the amount of any liabilities of the Partnership that are assumed by the Partner or are secured by any property distributed by the Partnership to such Partner determined in accordance with Treasury Regulations issued under Section 752 of the Code; To each Partner’s Capital Account there shall be debited: (i) the amount of cash and the gross fair market value of any Partnership asset distributed to such Partner with respect to the Partner’s Units pursuant to any provision of this Agreement, (ii) the amount of Losses allocated to such Partner and any items in the nature of expenses or losses that are allocated to such Partner pursuant to Section 4.06; and (iii) any reimbursement by the Partnership to an Indemnitor Partner pursuant to an Indemnity Agreement. Each Partner’s Capital Account shall be further maintained and adjusted in accordance with the Code and Treasury Regulations thereunder, including any other adjustments to Capital Accounts provided in the Treasury Regulations issued under Section 704 of the Code, such as, but not limited to, increases or decreases to reflect a revaluation of Partnership property on the Partnership’s books in accordance with the rules of Treasury Regulations Section 1.704-1(b)(2)(iv)(f). The foregoing provisions and other provisions of this Agreement relating to the maintenance of Capital Accounts are intended to comply with Treasury Regulations Section 1.704-1(b), and shall be interpreted and applied in a manner consistent with such Treasury Regulations. Any questions with respect to a Partner’s Capital Account shall be resolved by the General Partner in its reasonable discretion, applying principles consistent with this Agreement. Generally, a transferee of a Partnership interest shall succeed to the Capital Account relating to the Partnership interest transferred or the corresponding portion thereof. The Capital Account of a Partner may, under certain circumstances, be an amount less than zero. “Capital Contribution” means the total amount of cash and the Agreed Value of any Contributed Property contributed to the Partnership by a Partner. “Code” means the Internal Revenue Code of 1986, as amended (or any corresponding provision of succeeding law). A reference to a section of the Code shall be deemed to include any amendatory or successor provision thereto. 3
“Code Section 705(a)(2)(B) Expenditures” mean expenditures described in Code Section 705(a)(2)(B) and any amounts treated as Code Section 705(a)(2)(B) expenditures under Treasury Regulations Section 1.704-1(b)(2)(iv)(i)(2). “Common Units” means Units that are not Preferred Units. “Contributed Property” means each property or other asset, in such form as may be permitted by the Act, but excluding cash, contributed by any Partner or deemed contributed by any Partner to the Partnership. “Current Market Price” means for a REIT Share at any date, the average of the daily closing prices for thirty (30) consecutive Business Days commencing forty-five (45) Business Days before such date, where the closing price for each day is (A) the last reported sale price or, in case no such reported sale takes place on such day, the average of the last reported bid and asked prices, in either case on the principal national securities exchange registered under the Securities Exchange Act of 1934 on which the REIT Shares are admitted to trading or listed; or (B) if not listed or admitted to trading on any national securities exchange, the mean between the closing high bid and low asked quotations of the REIT Shares on the National Association of Securities Dealers, Inc. Automated Quotation System, or any similar system of automated dissemination of quotations of securities prices then in common use, if so quoted; or (C) if not so listed or admitted for trading on such exchange and if not so quoted, the mean between the high bid and low asked quotations for REIT Shares as reported by the National Quotation Bureau Incorporated or such other nationally recognized quotation service selected by the General Partner for that purpose (if said Bureau is not at the time furnishing quotations), if at least two securities dealers have inserted both bid and asked quotations for the REIT Shares on at least five (5) of the ten (10) trading days preceding such valuation date; or (D) if none of the conditions set forth in (A), (B), or (C) is met, unless the holder of the REIT Shares or Units and the General Partner otherwise agree, the fair market value of such REIT Shares as determined by a member firm of the New York Stock Exchange, Inc. mutually acceptable to such holder and the General Partner. Notwithstanding the foregoing, “Current Market Price” for purposes of determining any Redemption Amount being paid in cash to any Redeeming Partner who was a limited partner of Weeks Realty, L.P. immediately prior to the Merger on any date, shall mean the average of the closing prices for the ten (10) consecutive Business Days ending on such date. “Depreciation” means for each fiscal year or other period, an amount equal to the depreciation, amortization, or other cost recovery deduction allowable for federal income tax purposes with respect to an asset for such year or other period, except that if the Partnership asset is reflected on the books of the Partnership at a book value that differs from the adjusted tax basis of such asset pursuant to Section 1.704-1(b)(2)(iv)(d) or 1.704-1(b)(2)(iv)(f) of the Treasury Regulations, depreciation, amortization, or other cost recovery deductions shall be computed for book purposes with respect to such asset pursuant to Section 1.704-1(b)(2)(iv)(g) or 1.704-3(2) of the Treasury Regulations. “Distributable Cash” means, with respect to any period for which such calculation is being made, the sum of: (i) The Partnership’s Profit or Loss (as the case may be, with any Loss stated as a negative number) for such period; (ii) Depreciation and all other noncash charges deducted in determining Profit or Loss for such period; (iii) The amount of any reduction in reserves of the Partnership referred to in clause (xi) below (including, without limitation, reductions resulting because the General Partner determines such amounts are no longer necessary); 4
(iv) The excess of proceeds (net of transaction expenses) from the sale, exchange, disposition, or financing or refinancing of Partnership property for such period over any gain recognized from such sale, exchange, disposition, or financing or refinancing during such period (excluding Terminating Capital Transactions); (v) Any expense or loss amount included in determining Profit or Loss for such period that was not disbursed by the Partnership during such period; and (vi) All other cash received by the Partnership for such period that was not included in clauses (i) to (v) above with respect to such period; less the sum of: (vii) All principal debt payments made during such period by the Partnership; (viii) Capital expenditures made by the Partnership during such period; (ix) Investments in any entity (including loans made thereto) to the extent that such investments are not otherwise described in clauses (vii) or (viii); (x) Any income or gain amount included in determining Profit or Loss for such period that was not received by the Partnership during such period; (xi) The amount of any increase in reserves established during such period which the General Partner determines is necessary or appropriate in its sole and absolute discretion; and (xii) All other expenditures and payments not deducted in determining Profit or Loss or included in clauses (vii) to (xi) with respect to such period. Notwithstanding the foregoing, Distributable Cash shall not include any cash received or reductions in reserves, or take into account any disbursements made or reserves established, after commencement of the dissolution and liquidation of the Partnership. “Distribution” means any cash or property distributed to a Partner or Assignee arising from its interest in the Partnership. “DSI” means Duke Services, Inc., an Indiana corporation. “Duke Services” means Duke Realty Services Limited Partnership, an Indiana limited partnership. “Exchange Act” means the Securities Exchange Act of 1934, as amended. “GAAP” means generally accepted accounting principles as in effect from time to time in the United States. “General Partner” means Duke-Weeks Realty Corporation, an Indiana corporation. “Immediate Family” has the meaning given to such term in Rule 16a-l(e) under the Exchange Act. “Incapacity” or “Incapacitated” means, (i) as to any individual Partner, death, total physical disability or entry by a court of competent jurisdiction adjudicating him incompetent to manage his Person or his estate; (ii) as to any corporation which is a Partner, the filing of a certificate of dissolution, or its equivalent, for the corporation or the revocation of its charter, (iii) as to any partnership which is a Partner, the dissolution and commencement of winding up of the partnership; (iv) as to any estate which 5
is a Partner, the distribution by the fiduciary of the estate’s entire interest in the Partnership; (v) as to any trustee of a trust which is a Partner, the termination of the trust (but not the substitution of a new trustee); or (vi) as to any Partner, the Bankruptcy of such Partner. “Indemnity Agreement” means an agreement between a Partner and the General Partner pursuant to which such Partner has agreed to indemnify the General Partner from and against payment of a portion of the Partnership’s Recourse Liabilities and which shifts the economic risk of loss, within the meaning of Section 1.752-2 of the Treasury Regulations, to one or more Partners. Each Partner who is a party to an Indemnity Agreement is listed on Exhibit N attached hereto as an “Indemnitor,” together with the Indemnity Amount of such Indemnitor. “Indemnity Amount” means the maximum amount of Partnership Recourse Liabilities as to which an Indemnitor Partner (or a person related to an Indemnitor Partner within the meaning of Section 1.752-4(b) of the Treasury Regulations) has agreed to bear the economic risk of loss (within the meaning of Section 1.752-2 of the Treasury Regulations) through an Indemnity Agreement. “Indemnitor Partners” means those Partners who are allocated the economic risk of loss as to a portion of the Partnership’s Recourse Liabilities through an Indemnity Agreement. “Insolvent” means, with respect to a Person, a situation where (i) the Person is unable to pay its debts as they become due in the ordinary course of business, or (ii) the Person’s liabilities exceed the Person’s assets as determined under GAAP. “IRS” means the Internal Revenue Service. “Limited Partners” means (i) the Partners listed in Exhibit A hereto other than the General Partner, (ii) Additional Limited Partners and (iii) successors who have complied with the requirements of Article VII and who have been accepted as Substituted Partners pursuant to Section 7.04, in each case until all of the Units owned by any such Person are transferred under Article VII. “Liquidation Preference Amount” means with respect to any Preferred Unit, the amount payable with respect to such Preferred Unit pursuant to the applicable Partnership Unit Designation upon the voluntary or involuntary dissolution, liquidation or winding up of the Partnership, as the case may be, as determined under the applicable Partnership Unit Designation. “Merger” means the merger between Weeks Realty, L.P., a Georgia limited partnership, with and into the Partnership pursuant to an agreement and plan of merger dated February 28, 1999; such merger being in connection with and in contemplation of a merger between Weeks Corporation, a Georgia corporation, with and into the General Partner. “MWSB” means MWSB, Inc., a Delaware corporation. “Nonrecourse Deductions” means the nonrecourse deductions as defined in Section 1.704-2(b)(1) of the Treasury Regulations. The amount of Nonrecourse Deductions for a fiscal year equals the net increase, if any, in the amount of Partnership Minimum Gain during such fiscal year reduced by any distributions during such fiscal year of proceeds of a Nonrecourse Liability that are allocable to an increase in Partnership Minimum Gain, determined according to the provisions of Sections 1.704-2(c) and 1.704-2(h) of the Treasury Regulations. “Nonrecourse Liability” means a liability described in Section 1.704-2(b)(3) of the Treasury Regulations. “Notice of Redemption” means the Notice of Redemption substantially in the form of Exhibit C to this Agreement. 6
“Obligated Partner(s)” means that or those Limited Partner(s) listed as Obligated Partner(s) on Exhibit L attached hereto and made a part hereof, as such Exhibit may be amended from time to time by the General Partner, whether by express amendment to this Partnership Agreement or by execution of a written instrument by and between any additional Obligated Partner(s) being directly affected thereby and the General Partner, acting on behalf of the Partnership and without the prior consent of the Limited Partners (whether or not such Limited Partners are Obligated Partners or Indemnitor Partners other than the Obligated Partner(s) being directly affected thereby). Any successor, Assignee, or transferee of the entire Partnership Interest of an Obligated Partner shall be considered an Obligated Partner; provided however, that (i) if an entity Obligated Partner makes a distribution of all or any portion of its Units, the General Partner shall, upon receipt of written notice from such Obligated Partner and such distributee(s) of Units, amend Exhibit L to add any such distributee(s) as an additional Obligated Partner in the manner set forth in such notice, and (ii) the General Partner shall not become an Obligated Partner with respect to any Units acquired from an Obligated Partner pursuant to Section 7.07 or otherwise. “Obligated Partner-Controlled Partnership” means any of those certain general partnerships that, on August 24, 1994, had as its sole partners an Obligated Partner and a corporation wholly-owned by such Obligated Partner and that became a Limited Partner in Weeks Realty, L.P. at that date. “Partner” means the General Partner or any Limited Partner. “Partner Minimum Gain” means an amount with respect to each Partner Nonrecourse Debt, equal to the Partnership Minimum Gain that would result if such Partner Nonrecourse Debt were treated as a Nonrecourse Liability, determined in accordance with Section 1.704-2(i)(3) of the Treasury Regulations. “Partner Nonrecourse Debt” means a liability as defined in Section 1.704-2(b)(4) of the Treasury . Regulations. “Partner Nonrecourse Deductions” means the partner nonrecourse deductions as defined in Section 1.704-2(i)(2) of the Treasury Regulations. The amount of Partner Nonrecourse Deductions with respect to a Partner Nonrecourse Debt for a fiscal year equals the net increase, if any, in the amount of Partner Minimum Gain during such fiscal year attributable to such Partner Nonrecourse Debt, reduced by any distributions during that fiscal year to the Partner that bears the economic risk of loss for such Partner Nonrecourse Debt to the extent that such distributions are from the proceeds of such Partner Nonrecourse Debt and are allocable to an increase in Partner Minimum Gain attributable to such Partner Nonrecourse Debt, determined according to the provisions of Sections 1.704-2(h) and 1.704-2(i) of the Treasury Regulations. “Partnership” means the partnership governed by this Agreement. “Partnership Minimum Gain” means the aggregate gain, if any, that would be realized by the Partnership for purposes of computing Profits and Losses with respect to each Partnership asset if each Partnership asset subject to a Nonrecourse Liability were disposed of for the amount outstanding on the Nonrecourse Liability by the Partnership in a taxable transaction. Partnership Minimum Gain with respect to each Partnership asset shall be further determined in accordance with Section 1.704-2(d) of the Treasury Regulations and any subsequent rule or regulation governing the determination of minimum gain. A Partner’s share of Partnership Minimum Gain at the end of any Partnership year shall equal the aggregate Nonrecourse Deductions allocated to such Partner (or his predecessors in interest) up to that time, less such Partner’s (and predecessors’) aggregate share of decreases in Partnership Minimum Gain determined in accordance with Section 1.704-2(g) of the Treasury Regulations. “Partnership Record Date” means the record date established by the General Partner for the distribution of Distributable Cash pursuant to Section 4.03 hereof, which record date shall be the same as the record date established by the General Partner for a distribution to its shareholders of some or all of its portion of such distribution. 7
“Partnership Unit Designation” has the meaning set forth in Section 4.02. “Percentage Share” means, with respect to each Partner, the product of 100% and a fraction, the numerator of which is equal to the number of Common Units owned by the Partner and the denominator of which is equal to the total number of outstanding Common Units. “Permitted Transaction” means a merger by the General Partner with another entity, immediately after which substantially all of the assets of the surviving entity, other than Units held by the General Partner, are contributed to the Partnership as a Capital Contribution in exchange for Units with a fair market value equal to the net fair market value of the assets so contributed. “Person” means an individual, firm, partnership, corporation, limited liability company, estate, trust, pension or profit-sharing plan or other entity. “Preferred Units” means (i) the Units described in Exhibits D through J that are outstanding on the date of this Agreement and (ii) all other Units issued after the date of this Agreement pursuant to Section 4.02 that are designated as Preferred Units. “Principal Owners” means Gary A. Burk, Michael Colette, Thomas L. Hefner, David R. Mennel, Daniel C. Station, John W. Wynne and Darell E. Zink, Jr. “Profits” and “Losses” mean, for each fiscal year or other period, an amount equal to the Partnership’s taxable income or loss for such fiscal year or period, determined in accordance with Code Section 703(a) (for this purpose, all items of income, gain, loss or deduction required to be stated separately pursuant to Code Section 703(a)(1) shall be included in taxable income or loss), with the following adjustments: (i) Any income of the Partnership that is exempt from federal income tax and not otherwise taken into account in computing Profits or Losses shall be added to such taxable income or loss; (ii) Any Code Section 705(a)(2)(B) Expenditures not otherwise taken into account in computing Profits or Losses shall be subtracted from such taxable income or loss; (iii) In the event any asset of the Partnership is distributed to any Partner or sold by the Partnership, the difference on such date between (a) the gross fair market value and (b) either (1) the adjusted basis of the asset for federal income tax purposes, or (2) if the asset is reflected on the books of the Partnership at a book value that differs from the adjusted tax basis of such asset pursuant to Treasury Regulations Section 1.704-l(b)(2)(iv)(d) or 1.704-1(b)(2)(iv)(f), the gross fair market value on the date of the contribution of the asset to the Partnership or the gross fair market value of the asset on the date of the asset’s revaluation on the Partnership’s books, as the case may be (as determined by the General Partner) less Depreciation, shall be taken into account as gain or loss from the disposition of such asset for purposes of computing Profits or Losses; (iv) In lieu of the depreciation, amortization, and other cost recovery deductions taken into account in computing such taxable income or loss, there shall be taken into account Depreciation for such fiscal year or other period; and (v) Notwithstanding any other provision of this definition, any items which are allocated pursuant to Section 4.06 hereof shall not be taken into account in computing Profits and Losses. 8
“Recourse Liabilities” means, as of the date of determination, the amount of indebtedness owed by the Partnership on that date other than Nonrecourse Liabilities and Partner Nonrecourse Debt. “Redeeming Partner” has the meaning set forth in Section 7.07. “Redemption Amount” means either (i) the REIT Shares Amount, or (ii) upon a determination by the General Partner in the reasonable exercise of its discretion that transfer of the REIT Shares Amount to the Redeeming Partner could cause the General Partner to fail to qualify as a REIT, an amount of cash equal to the REIT Shares Amount times the Current Market Price per REIT Share as of the date of receipt by the General Partner of the Notice of Redemption (or, if such date is not a Business Day, the first Business Day thereafter). “Redemption Ratio” means the amount determined in accordance with Section 7.07(d). “Redemption Right” has the meaning set forth in Section 7.07. “REIT” means a real estate investment trust under Section 856 of the Code. “REIT Merger” means the proposed merger between Weeks Corporation, a Georgia corporation, with and into Duke Realty Investments, Inc. “REIT Share” means a share of common stock of the General Partner. “REIT Shares Amount” means a number of REIT Shares equal to the product of the number of Units offered for redemption by a Redeeming Partner, multiplied by the Redemption Ratio; provided, that in the event the General Partner issues to all holders of REIT Shares rights, options, warrants or convertible or exchangeable securities entitling the shareholders to subscribe for or purchase REIT Shares, or any other securities or property (collectively, “ rights ”) and the General Partner can issue such, rights to Persons exercising the Redemption Right, then the REIT Shares Amount also includes such rights that a holder of that number of REIT Shares would be entitled to receive. “Restoration Amount” means with respect to any Obligated Partner, the amount set forth opposite the name of such Obligated Partner on Exhibit L hereto and made a part hereof, as such Exhibit may be modified from time to time by an amendment to the Partnership Agreement or by execution of a written instrument by and between any additional Obligated Partner(s) being directly affected thereby and the General Partner, acting on behalf of the Partnership and without the prior written consent of the Limited Partners (whether or not such Limited Partners are Obligated Partners or Indemnitor Partners other than the Obligated Partner(s) being directly affected (thereby). If an entity Obligated Partner makes a distribution of all or any portion of its Units, and the General Partner receives a written notice from such Obligated Partner and any distributee(s) of Units to amend Exhibit L to add such distributee(s) as additional Obligated Partner(s), the Restoration Amount of such additional Obligated Partner(s) shall be increased by an amount equal to that amount set forth in such notice, and the Restoration Amount of the Obligated Partner making such distribution shall be reduced by such amount. Those Limited Partners who were limited partners of Weeks Realty, L.P. immediately prior to the Merger shall be given proportionate opportunities to increase any Restoration Amount which they have elected to restore upon liquidation of their interest in the Partnership (as more particularly provided in Section 2.05 hereof) on the same basis, if any, as is provided generally to Limited Partners. “Special Partner Approval” means the approval of Partners holding more than ninety percent (90%) of the outstanding Common Units. “Specified Redemption Date” means the tenth Business Day after receipt by the General Partner of a Notice of Redemption; provided that if the General Partner combines its outstanding REIT Shares into a smaller number of REIT Shares, no Specified Redemption Date shall occur between the record date and the effective date of such combination. 9
“Subsidiary” means, with respect to any Person, any corporation or other entity of which a majority of (i) the voting power of the voting equity securities or (ii) the fair market value of the outstanding equity interests is owned, directly or indirectly, by such Person. “Substituted Partner” means an Assignee of Record, or other Person, who becomes a Partner pursuant to Article VII. “Tax Matters Partner” means the General Partner, or any successor thereto appointed by the General Partner. “Terminating Capital Transaction” means either the sale, exchange or other disposition of all or substantially all of the assets of the Partnership in a single transaction or a related series of transactions or a dissolution of the Partnership unless the Partnership is continued. “Total Assets” means, as of the date of determination, all assets of the Partnership on that date, determined on a consolidated basis in conformity with GAAP. “Total Liabilities” means, as of the date of determination, all liabilities of the Partnership on that date, determined on a consolidated basis in conformity with GAAP. “Treasury Regulations” means the Income Tax Regulations promulgated under the Code as such Treasury Regulations may be amended from time to time (including Temporary Regulations). A reference to any Treasury Regulation shall be deemed to include any amendatory or successor provision thereto. “Unaffiliated General Partner Directors” means the members of the General Partner’s board of directors who satisfy the definition of “Unaffiliated Directors” in the General Partner’s Articles of Incorporation, as now or hereafter amended. “Unit” means a unit of partner interest in the Partnership (including Preferred and Common Units), representing a Capital Contribution and/or a right to receive a share of the Partnership’s Profits, Losses or Distributions, and in all cases the rights, powers and privileges appurtenant thereto in accordance with this Agreement. Such terms shall be used either in the singular or plural and may be referred to in any gender as required by the context. MEMBERS AND STATUS Section 2.01. The Partners. The Partners of the Partnership shall consist of and be divided into a general partner and limited partners, with the General Partner as the sole general partner and the Limited Partners as the limited partners. Section 2.02. Additional Partners. Except as provided in Sections 6.03 and 7.0l(c), no additional general partners shall be admitted. Subject to the limitations of Article VII, Persons who are issued Units by the Partnership, through purchase or otherwise, may be admitted as Additional Limited Partners from time to time by the General Partner subject to and as provided in this Agreement. Section 2.03. Classification and Ownership of Units. (a) Units consist of Common Units and Preferred Units. The Partnership may issue an unlimited number of Units. Units may be issued to, acquired and owned by Limited Partners or the General Partner. 10
(b) The General Partner may, in its sole discretion and without the consent of any other Partner, cause the Partnership to split the outstanding Units and issue to each Partner an additional whole number of Units, such that thereafter the Partner owns a number of Units equal to the number of Units previously owned by such Partner times a fraction which is greater than one. (c) The General Partner shall cause the Partnership to issue one or more certificates in the names of the Partners owning Units to any Partner who requests such a certificate. Each such certificate shall be denominated in terms of the number of Units evidenced by such certificate. Each such certificate shall contain legends specifying restrictions on transfer imposed by this Agreement or by applicable law and noting the restrictions and agreements contained in Article VII. Upon the transfer, in accordance with Article VII, of a Unit evidenced by a certificate, the General Partner shall cause the Partnership to issue replacement certificates, in accordance with such procedures as the General Partner, in its sole and absolute discretion, may establish. Holders of Units which are not evidenced by certificates will be entitled to all the rights of ownership of such Units notwithstanding the fact that they are not evidenced by certificates. (d) The Partnership shall issue a new certificate in place of any certificate previously issued if the record holder of such certificate: (i) Makes proof by affidavit, in form and substance satisfactory to the General Partner, that such previously issued certificate has been lost, destroyed, or stolen; (ii) Requests the issuance of a new certificate before the Partnership has notice that such previously issued certificate has been acquired by a purchaser for value in good faith and without notice of an adverse claim; (iii) If requested by the General Partner, delivers to the Partnership a bond, in form and substance satisfactory to the General Partner, with such surety or sureties and with fixed or open penalty, as the General Partner may direct, to indemnify the Partnership against any claim that may be made on account of the alleged loss, destruction, or theft of such previously issued certificate; and (iv) Satisfies any other reasonable requirements imposed by the General Partner. When a previously issued certificate has been lost, destroyed, or stolen, and the Partner fails to notify the Partnership within a reasonable time after it has notice of such event, and a transfer of Units represented by the certificate is registered before the Partnership receives such notification, the Partner shall be precluded from making any claim against the Partnership with respect to such transfer or for a new certificate. (e) The Partnership shall be entitled to treat each record holder as the Partner or Assignee of Record of any Units and, accordingly, shall not be required to recognize any equitable or other claim or interest in or with respect to such Units on the part of any other Person, regardless of whether the Partnership shall have actual or other notice thereof and regardless of whether such Person shall have possession of any certificate representing such Units, except as otherwise required by law. Section 2.04. Liability of General Partner. (a) Subject to the limitations expressed in this Section, the General Partner shall have unlimited liability for the repayment, satisfaction and discharge of the obligations of the Partnership to third parties dealing with the Partnership as prescribed by law, except for nonrecourse obligations of the Partnership. The General Partner is not liable to the Partnership and the Limited Partners (i) for return of the Capital Contribution or any portion thereof of any Limited Partner, (ii) on account of any disallowance or adjustment by a taxing authority of the allocation of taxable income, gain, losses, deductions or credits in 11
Partnership income tax returns, (iii) on account of any failure by the Partnership to achieve any forecasted financial return or (iv) for any action or omission to act not constituting willful misconduct or gross negligence. (b) Notwithstanding anything to the contrary set forth in this Agreement, the General Partner shall not be liable for monetary damages to the Partnership, any Partners or any Assignees for losses sustained or liabilities incurred as a result of errors in judgment or any act or omission if the General Partner acted in good faith. (c) The Limited Partners (and Assignees by acceptance of an Assignment) expressly acknowledge that the General Partner is acting on behalf of its shareholders collectively, that the General Partner is under no obligation to consider the separate interests of the Limited Partners or Assignees (including, without limitation, the tax consequences to Limited Partners or Assignees) in deciding whether to cause the Partnership to take (or decline to take) any actions, and that the General Partner shall not be liable for monetary damages for losses sustained, liabilities incurred, or benefits not derived by Limited Partners or Assignees in connection with such decisions, provided that the General Partner has not acted in bad faith. The General Partner shall be conclusively presumed not to have acted in bad faith if it reasonably believed that its actions were in the best interests of its shareholders. (d) Subject to its obligations and duties as General Partner set forth in Section 3.03 hereof, the General Partner may exercise any of the powers granted to it by this Agreement and perform any of the duties imposed upon it hereunder either directly or by or through its agents. The General Partner shall not be responsible for any misconduct or negligence on the part of any such agent appointed by it in good faith. (e) Any amendment, modification or repeal of this Section 2.04, or any provision hereof, shall be prospective only and shall not in any way affect the limitations on the General Partner’s liability to the Partnership and the Limited Partners under this Section 2.04 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted. (f) The General Partner may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, bond, debenture, or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties. (g) The General Partner may consult with legal counsel, accountants, appraisers, management consultants, investment bankers and other consultants and advisers selected by it, and any act taken or omitted to be taken in reliance upon the opinion of such Persons as to matters which such General Partner reasonably believes to be within such Person’s professional or expert competence shall be conclusively presumed to have been done or omitted in good faith and in accordance with such opinion. (h) The General Partner shall have the right, in respect of any of its powers or obligations hereunder, to act through any of its duly authorized officers and a duly appointed attorney or attorneys-in-fact Each such attorney shall, to the extent provided by the General Partner in the power of attorney, have full power and authority to do and perform all and every act and duty which is permitted or required to be done by the General Partner hereunder. (i) Notwithstanding any other provisions of this Agreement or the Act, any action of the General Partner on behalf of the Partnership or any decision of the General Partner to refrain from acting on behalf of the Partnership, undertaken in the good faith belief that such action or omission is necessary or advisable in order (i) to protect the ability of the General Partner to continue to qualify as a REIT, (ii) to protect the tax classification of the Partnership or any other partnership which is an Affiliate of the 12
Partnership as a partnership for tax purposes, or (iii) to avoid the General Partner incurring any taxes under Section 857 of the Code, Section 4981 of the Code or under principles announced in IRS Notice 88-19 is expressly authorized under this Agreement and is deemed approved by all of the Limited Partners. (j) A holder of Units shall not be deemed solely by virtue thereof to be a shareholder of the General) Partner or to have any interest therein, other than the Redemption Right provided by Section 7.07. (k) The rights and limitations of liability provided by this section to the General Partner shall extend to the directors, officers, employees and agents of the General Partner, provided , however , that nothing in this section shall be construed to create or imply any liability of any director, officer, employee or agent of the General Partner. Section 2.05. Limitation Upon Liability of Limited Partners. (a) The personal liability of each Limited Partner to the Partnership (except as provided in Sections 2.05(b) and 2.05(c)), to the other Partners, to the creditors of the Partnership or to any other third party for the losses, debts or liabilities of the Partnership shall be limited to (i) the amount of its Capital Contribution which has not theretofore been returned to it as a Distribution (including a Distribution upon liquidation), and (ii) the amount of any liability under I.C. 23-16-7-8 for any Capital Contribution returned to the Limited Partner. (b) Except as provided in the next sentence, Section 2.05(c) or my Indemnity Agreement, no Partner shall be liable to the Partnership or to any other Partner for any deficit or negative balance which may exist in such Partner’s Capital Account. If any Obligated Partner has a deficit balance in its Capital Account (after giving effect to all contributions, distributions, allocations and adjustments to Capital Accounts for all periods including such Partner’s share of any unrealized gain or loss with respect to the Partnership’s assets) on the date of “liquidation” of such Obligated Partner’s respective interest in the Partnership (within the meaning of Section 1.704-l(b)(2)(ii)(g) of the Treasury Regulations), such Obligated Partner shall contribute to the capital of the Partnership an amount equal to its respective deficit balance; such obligation to be satisfied by the end of the Partnership’s first taxable year in which either the Partnership is dissolved or liquidated or such Obligated Partner’s interest in the Partnership is liquidated. To the extent contributions are used to make payments to creditors of the Partnership, no Obligated Partner shall be subrogated to the rights of any such creditor against the General Partner, the Partnership, another Partner or any person related thereto, and each Obligated Partner irrevocably waives any right to reimbursement, contribution or similar right to which such Obligated Partner might otherwise be entitled as a result of the performance of its obligations under this Agreement. (c) Except as otherwise agreed to in writing by the General Partner and an Obligated Partner prior to the time of admission of such Obligated Partner to the Partnership, notwithstanding any other provision of this Agreement other than Section 2.05(d), an Obligated Partner shall not cease to be an Obligated Partner for purposes of this Section 2.05 and shall continue to be subject to the contribution obligations of this Section 2.05 as if such Obligated Partner continued to hold Units upon a sale or redemption by such Obligated Partner of all remaining Units for REIT Shares (pursuant to Section 7.07 or otherwise) unless, at no time during the 12 month period following such sale or redemption, the Partnership: (i) is in Bankruptcy; (ii) is Insolvent; or (iii) fails to maintain a ratio of Total Liabilities to Total Assets of less than 80%; 13
provided that , after the passage of such 12 months, the Obligated Partner shall cease to be an Obligated Partner at the first time, if any, the Partnership is not subject to any of the conditions set forth in clauses (i), (ii) and (iii) above. (d) After the death of an Obligated Partner, the executor of the estate of such Obligated Partner may elect to reduce (or eliminate) the deficit Capital Account restoration obligation of such Obligated Partner pursuant to Section 2.05(b). Such election may be made by such executor by delivering to the General Partner within two hundred seventy (270) days of the death of such Obligated Partner a written notice setting forth the maximum deficit balance in his Capital Account that such executor agrees to restore under Section 2.05(b), if any. If such executor does not make a timely election pursuant to this Section 2.05(d) (whether or not the balance in his Capital Account is negative at such time), then such Obligated Partner’s estate (and the beneficiaries thereof who receive distribution of Units therefrom) shall be deemed to have a deficit Capital Account restoration obligation as set forth pursuant to the terms of Section 2.05(b). Any Obligated Partner-Controlled Partnership may likewise elect, after the death of its respective Obligated Partner, to reduce (or eliminate) its deficit Capital Account restoration obligation pursuant to Section 2.05(b) by delivering a similar written notice to the General Partner within the time period specified herein. Any Obligated Partner-Controlled Partnership that does not make any such timely election shall similarly be deemed to have a deficit Capital Account restoration obligation as set forth pursuant to the terms of Section 2.05(b). SCOPE OF PARTNERSHIP AND MODE OF OPERATION Section 3.01. Scope of Partnership. The purpose of the Partnership is to engage, subject to the limitations in Sections 3.09(b) and 3.09(c), in any business that may be lawfully conducted by a limited partnership organized pursuant to the Act. Section 3.02. Powers of the Partnership. Subject to the limitations in Sections 3.09(b), 3.09(c) and 3.09(d), the Partnership shall have all the powers permitted by law which are necessary or desirable in carrying out the purposes and business of the Partnership, including, but not limited to, the following powers: (a) To acquire by purchase, exchange, lease, hire, or otherwise, real and personal property of every kind, character and description whatsoever, and wheresoever situated, and any interest therein, either alone or in conjunction with others, and to hold for investment, own, use, develop, operate, lease, mortgage, sell or otherwise dispose of, convey or otherwise deal in the same and any interest therein; (b) To perform all services related to the acquisition, development, holding, management, financing, leasing and disposition of real and personal property of every kind, character and description, including, but not limited to, the performance of management and other services with respect to its properties pursuant to contracts contributed to the Partnership; (c) To borrow or raise money for any of the purposes of the Partnership, and from time to time, without limitation as to amount, to draw, make, accept, endorse, execute and issue promissory notes, drafts, bills of exchange, warrants, bonds, debentures, evidences of indebtedness and other instruments, and to secure the payment thereof, the interest thereon and any other obligations or liabilities relating thereto, in any manner, including without limitation by mortgage on, security interest in or pledge, or conveyance or assignment in trust of, the whole or any part of the assets of the Partnership, real, personal or mixed, including contract rights and options, whether at the time owned or thereafter acquired, and future earnings, and to sell, pledge or otherwise dispose of such securities or other obligations of the Partnership for the furtherance of its purpose; 14
(d) To act in any state or nation in which the Partnership may lawfully act, for itself or as principal, agent or representative for any individual, association, partnership, corporation or legal entity, respecting business of the Partnership; (e) To enter into, make, amend, perform and carry out, or cancel and rescind, contracts and other obligations for any lawful purpose pertaining to the business of the Partnership, including, but not limited to, one or more agreements to reimburse or be reimbursed by Duke Services for employee, administrative or other costs associated with the Partnership’s properties or properties for which services are rendered by Duke Services; (f) To become a partner or member in, and perform the obligations of a partner or member of, any general or limited partnership or limited liability company, including but not limited to Duke Services; (g) To apply for, register, obtain, purchase or otherwise acquire trademarks, trade names, labels and designs relating to or useful in connection with any business of the Partnership, and to use, exercise, develop and license the use of the same; (h) To employ, on behalf of the Partnership, legal counsel; financial counsel; accountants; professional advisors; and Persons or entities for the operation and management of the business of the Partnership; (i) To establish accounts and deposits and maintain funds in the name of the Partnership in banks or other financial institutions and to invest funds of the Partnership temporarily when not required for operation of its properties or distribution to the Partners, in short-term debt obligations, including without limitation obligations of federal and state governments, commercial paper and certificates of deposit of banks and other financial institutions; (j) To pay or reimburse any and all actual fees, costs and expenses incurred in the formation and organization of the Partnership; (k) To do all acts which are necessary, customary or appropriate for the protection and preservation of the Partnership’s assets, including the establishment of reserves; (l) To loan money to, borrow money from and engage in transactions with Affiliates, subject to Sections 3.07 and 3.13; (m) To compromise, submit to arbitration, sue on, or defend claims in favor of or against the Partnership; and (n) In general, to exercise all of the general rights, privileges and powers permitted to be had and exercised by the provisions of the Act. Section 3.03. Management of the Partnership. Subject to the limitations of this section, of Section 3.04 and of Section 3.09, the General Partner shall be responsible for the management of the Partnership’s business and shall have full, exclusive and complete power and discretion, without the need for consent or approval of any other Partner, to make all decisions and to do all things which it deems necessary or desirable on behalf of the Partnership, including but not limited to the exercise of the powers specified in Section 3.02 on behalf of the Partnership. Section 3.04. Limitation on Powers. As between the Partners and subject to Section 2.04(c), no Partner shall: (i) Use the Partnership name or assets in any way except for the transaction of legitimate Partnership business or do any act in contravention of this Agreement of Partnership; or 15
(ii) Do any act which would make it impossible to carry on the business of the Partnership. Section 3.05. Non-Participation in Management by Limited Partners. Except as specifically provided in this Agreement, no Limited Partner as such shall participate in the control or management of the business of the Partnership, nor act for and on behalf of the Partnership in any manner whatsoever. No Limited Partner shall be deemed to be participating in the management of the business of the Partnership merely by consulting with or advising the General Partner or by acting as an officer, director, employee, agent or shareholder of the General Partner or as an employee or agent of the Partnership, Duke Services, DSI or any Subsidiary of the Partnership, Duke Services or DSI. Section 3.06. Time to be Devoted to Business. The General Partner and its employees and agents shall devote such time to the Partnership’s business as the General Partner determines to be reasonably necessary to manage and supervise the Partnership’s business and affairs in an efficient manner. Nothing in this Agreement shall preclude the employment, at the expense of the Partnership, of any agent or third party to manage or provide other services with respect to the Partnership’s business, subject to the control of the General Partner. Unless otherwise provided in a writing executed by the General Partner, any such employment, or any appointment of any agent or authorization by the General Partner shall in all cases be subject to immediate termination upon written notice by the General Partner. Section 3.07. Dealings With Related Entities. (a) A Partner or any Affiliate of a Partner may contract or otherwise deal with the Partnership for the purchase or sale of goods, property or services or for other purposes, and the Partnership shall have the power to so contract or deal, if the transaction is in the best interests of the General Partner and its shareholders. The requirements of this subsection shall be deemed to be satisfied with respect to any contract or dealing for which the approval of the Unaffiliated General Partner Directors has been obtained; however, the failure to obtain such approval shall not be evidence that such requirements are not otherwise satisfied. The validity of any transaction, agreement, or payment involving the Partnership and an Affiliate of a Partner otherwise permitted by this Agreement shall not be affected by reason of the relationship between the Partner and the Affiliate or the approval of the transaction, agreement, or payment by the Partner who is otherwise interested in or related to the Affiliate. Specifically, and not by way of limitation, the Partnership is permitted to contract or otherwise deal with Duke Services and Steel Frame Erectors, Inc. (b) If a Partner is employed by or retained by the Partnership in any capacity, compensation to such Partner shall be deemed to be for services rendered not in the Partner’s capacity as a member of the Partnership, and it shall be treated for federal income tax purposes as a payment described by Section 707(a) of the Code. (c) The General Partner, in its sole and absolute discretion and without the approval of the Limited Partners, may propose and adopt on behalf of the Partnership employee benefit plans funded by the Partnership for the benefit of employees of the General Partner, the Partnership, Duke Services, Subsidiaries of the Partnership or the General Partner or any Affiliate of any of them in respect of services performed, directly or indirectly, for the benefit of the Partnership, the General Partner, Duke Services, or any of the Partnership’s or the General Partner’s Subsidiaries. (d) The General Partner is expressly authorized to enter into, in the name and on behalf of the Partnership, options, right of first opportunity arrangements and other conflict avoidance agreements with various Affiliates of the Partnership and the General Partner on such terms as the General Partner, in its sole and absolute discretion, believes are advisable. 16
(e) In connection with the Merger, from and after the date of this Agreement, the Partnership hereby assumes and agrees to perform the obligations and undertakings of Weeks Realty, L.P. under the agreements described in Exhibit K to this Agreement. (a) Subject to subsection (b) and Section 3.09, nothing contained in this Agreement shall in any way or manner prohibit or restrict the right or freedom of any Partner, any Affiliate of any Partner or any other Person to conduct or participate in any business or activity individually or as a partner, shareholder or owner of any partnership, corporation or other entity other than the Partnership without any obligation or accountability to the Partnership or any other Partner, even if such business or activity competes with the business of the Partnership; and subject to Section 3.09, any entity which includes as a partner, shareholder or other owner a Partner, any Affiliate of a Partner or any other Person shall have the right at any time to own and operate any business whatsoever other than the business of the Partnership, either individually or with one or more parties, and shall not be required to obtain the consent thereto by any other Partner or offer to any other Partner or the Partnership a participation therein. (b) Commencing upon their acceptance of one or more Units and admission to the Partnership as Limited Partners, each of the Principal Owners agrees that so long as he is employed by any of the Partnership, the General Partner, Duke Services, DSI or any Subsidiary of the Partnership, the General Partner, Duke Services or DSI, he will conduct all of his commercial real estate business exclusively through the Partnership, the General Partner, Duke Services, Duke Construction Limited Partnership, DSI, MWSB or a Subsidiary of the Partnership, the General Partner, Duke Services, Duke Construction Limited Partnership, DSI or MWSB, except (i) business with respect to whole or partial interests in fifteen (15) properties, which number may change from time to time, owned as of the date of this Agreement by Affiliates of the Principal Owners which the Partnership has as of the date of this Agreement an option to acquire, (ii) steel frame erecting business through Steel Frame Erectors, Inc. or (iii) as approved by the directors of the General Partner who have no pecuniary interest in such other business. Section 3.09. Restriction on the General Partner and Partnership Activities. (a) Unless Special Partner Approval is obtained, the General Partner shall not engage in any of the following activities: (i) Directly or indirectly enter into or conduct any business, other than in connection with the ownership, acquisition and disposition of Units as a Limited Partner, the management of the business of the Partnership, activities in connection with DSI and the General Partner (which shall be limited to activities in connection with Duke Services and the Partnership), Duke Services, and Duke Construction Limited Partnership, and such activities as are incidental thereto. (ii) Own any assets other than Units, its interest as a General Partner, its interest in DSI and such bank accounts or similar instruments as it deems necessary to carry out its responsibilities contemplated under this Agreement and its Articles of Incorporation. (iii) Issue any additional shares of capital stock (other than REIT Shares issued pursuant to Section 7.07 or REIT Shares issued without consideration to all holders of REIT Shares); provided, however, that no Special Partner Approval shall be required if the General Partner contributes the net proceeds from the issuance of such shares of capital stock and from the exercise of rights contained in any options, warrants or convertible or exchangeable securities containing the right to subscribe for or purchase such shares of capital stock to the Partnership 17
in exchange for additional Units at the value per Unit established in Section 4.02(c). (iv) Engage in any merger, consolidation or other combination with or into another Person or sale of all or substantially all of its assets, or any reclassification, or recapitalization or change of outstanding REIT Shares (other than a change in par value, or from par value to no par value, or as a result of a subdivision or combination as described in Section 7.07(d)) other than a Permitted Transaction. (b) Unless Special Partner Approval is obtained, the Partnership shall not engage in any of the following activities: (i) Engage in any business other than business in which the General Partner is permitted to engage by its Articles of Incorporation as in effect on the date of this Agreement or which is incidental thereto or reasonably necessary for the protection of the Partnership. (ii) Notwithstanding anything to the contrary herein, effect or enter into an agreement to effect a voluntary sale, exchange or other disposition by merger, consolidation or otherwise (other than a disposition occurring upon a financing or refinancing by the Partnership) of all or substantially all of the assets of the Partnership in a single transaction or a series of related transactions. (c) Notwithstanding anything to the contrary herein, (i) the Partnership shall not take, refrain from taking, or be required to take any action which, in the judgment of the General Partner, in its sole and absolute discretion, (A) could adversely affect the ability of the General Partner to continue to qualify as a REIT, (B) subject to clause (A), could adversely affect the classification of the Partnership or any partnership which is an Affiliate of the Partnership as a partnership for tax purposes, (C) could subject the General Partner to any additional taxes under Section 857 or Section 4981 of the Code, or (D) could violate any law or regulation of any governmental body or agency having jurisdiction over the General Partner or its securities, unless such action (or inaction) shall have been specifically consented to by the General Partner in writing; and (ii) the Partnership, when deemed necessary by the General Partner in its sole and absolute discretion to continue the General Partner’s qualification as a REIT, shall be required to make distributions to its Partners, whether funded by available cash revenues, borrowings or any other means, which are sufficient in amount to enable the General Partner to m | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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