Amended and Restated Certificate of Limited Partnership of AHM Res II Limited Partnership

Summary

This document is the amended and restated certificate for AHM Res II Limited Partnership, filed by its sole general partner, AHM Res II GP, Inc., under Virginia law. It outlines the partnership's name, registered agent, principal office, and general partner, and sets the latest dissolution date as December 31, 2102. The agreement details the partnership's purpose—primarily leasing, operating, and managing certain hotel properties—and includes specific rules for maintaining separate business operations and financial records, especially while certain loan obligations remain outstanding.

EX-10.6 15 dex106.txt EXHIBIT 10.6 EXHIBIT 10.6 AMENDED AND RESTATED CERTIFICATE OF LIMITED PARTNERSHIP OF AHM RES II LIMITED PARTNERSHIP This Amended and Restated Certificate of Limited Partnership is being filed pursuant to Section 50-73.12 of the Virginia Revised Uniform Limited Partnership Act (the "Act") by the sole general partner of AHM Res II Limited Partnership (the "Limited Partnership"). 1. Name. The name of the Limited Partnership is as follows: AHM Res II Limited Partnership 2. Date of Initial Certificate. The date of filing of the initial Certificate of Limited Partnership (the "Initial Certificate") was: April 23, 2002 3. Restatements. The information below is restated from the Initial Certificate: (a) Records. The following address is the post office address of the office at which the records required to be maintained by Section 50-73.8 of the Act are kept: 10 South Third Street Richmond, Virginia 23219 Such address is located in the City of Richmond, Virginia. (b) Registered Agent and Office. The registered agent of the Limited Partnership is Martin B. Richards, Esquire, who is a resident of Virginia and a member of the Virginia State Bar. The post office address of the registered agent is c/o McGuireWoods LLP, One James Center, 901 East Cary Street, Richmond, Virginia 23219. Such address is located in the City of Richmond, Virginia. (c) General Partner. The name of the sole general partner of the Limited Partnership is AHM Res II GP, Inc., a Virginia corporation. The post office address of the general partner is as follows: 10 South Third Street Richmond, Virginia 23219 (d) Latest Date of Dissolution. The latest date upon which the Limited Partnership is to be dissolved and its affairs wound up is December 31, 2102, or on such earlier date as may be required by law or by the Limited Partnership Agreement that governs the Limited Partnership. 4. Amendments. The Limited Partnership is and shall be bound by the following: I. General Definitions. As used herein, the following terms shall have the meanings indicated below: "Act" shall mean the Virginia Revised Uniform Limited Partnership Act, as it may be amended or replaced from time to time. References to a specific provision of the Act shall be deemed to refer to any successor provision. "Affiliate" means, with respect to any specified Person (a) any Person directly or indirectly controlling, controlled by or under common control with such specified Person, (b) any Person owning or controlling 10% or more of the outstanding voting interests of such specified Person, (c) any Person of which such specified Person owns or controls 10% or more of the voting interests, or (d) any officer, director, general partner, manager or trustee of such specified Person or any Person referred to in clauses (a), (b), and (c) immediately above. For purposes of this definition, "control," when used with respect to any specified Person, means the power to direct the management and policies of such specified Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise. The terms "controlling" and "controlled" have meanings correlative to the foregoing. "Loan Documents" means the Loan Agreement dated as of March 22, 1996 between the Marriott Residence Inn II Limited Partnership, as borrower, and Nomura Asset Capital Corporation, as lender, the promissory note evidencing the indebtedness thereunder, the deed of trust and other security documents securing such indebtedness, and all other documents and instruments executed in connection with the foregoing, as the same may be amended or assigned from time to time. "Partner" means any general or limited partner of the Limited Partnership. "Person" means a natural person, partnership (whether general or limited), trust, estate, association, corporation, limited liability company, unincorporated organization, custodian, nominee or any other individual or entity in its own or any representative capacity. "Properties" shall mean the 22 hotels listed below in another section, consisting of improved real property and related personal property, the full legal description of which is set forth in the Loan Documents. II. Purpose. The permitted purpose of the Limited Partnership shall be to engage in any of the following activities: (a) leasing, operating and managing the Properties; (b) executing and delivering agreements and instruments from time to time for the purpose set forth in clause (a) immediately above; and (c) exercising all powers that are enumerated in the Act and are necessary or convenient for the accomplishment of the foregoing. -2- III. Affirmative Covenants. Notwithstanding anything to the contrary contained herein, and for so long as any indebtedness is outstanding under the Loan Documents, the Limited Partnership, and each Partner, hereby agrees that the Limited Partnership shall: (a) maintain its books and records and bank accounts separate from any other Person (except that, for accounting and reporting purposes, the Limited Partnership may be included in the consolidated financial statements of an equity owner of the Limited Partnership in accordance with generally accepted accounting principles); (b) maintain an arm's length relationship with Affiliates and any other party furnishing services to it; (c) maintain its books, records, resolutions and agreements as official records; (d) conduct is business in its own name and through its own authorized officers and agents; (e) prepare and maintain its financial statements, accounting records and other documents separate from those of any other Person (except for inclusion in consolidated financial statements of an equity owner, as described in clause (a) immediately above); (f) pay its own liabilities out of its own funds and other assets; (g) observe all formalities necessary to maintain its identity as an entity separate and distinct from all of its Affiliates; (h) participate in the fair and reasonable allocation, and pay its share, of any and all overhead expenses and other common expenses for facilities, goods or services provided to multiple entities; (i) use its own stationery, invoices and checks (except when acting in a representative capacity, in which event such capacity shall be disclosed); (j) hold and identify itself as a separate and distinct entity under its own name and not as a division or part of any other Person (except for inclusion in consolidated financial statements of an equity owner, as described in clause (a) immediately above); (k) hold its assets in its own name; and (l) maintain adequate capital for the conduct of its business. IV. Negative Covenants. Notwithstanding anything to the contrary contained herein, and for so long as any indebtedness is outstanding under the Loan Documents, the Limited Partnership, and each Partner, hereby agrees that the Limited Partnership shall not: (a) seek or consent to any dissolution, winding up, liquidation, consolidation, merger or sale of all or substantially all of its assets; -3- (b) fail to correct any known misunderstanding regarding its separate identity; (c) commingle its funds or other assets with those of any other Person; (d) assume or guarantee or become obligated for the debts of any other Person or hold out its credit as being available to satisfy the obligations of any other Person; (e) acquire obligations or securities of its Partners (other than any note of a Partner held by the Limited Partnership to provide adequate capital for operation of its business); (f) pledge any of its assets for the benefit of any other Person (except as disclosed in accordance with the Loan Documents); (g) make any loans to any other Person; (h) identify its Partners or any of its Affiliates as a division or part of it (except for inclusion in consolidated financial statements of an equity owner); (i) engage (either as transferor or transferee) in any material transaction with any Affiliate other than for fair value and on terms similar to those obtainable in arms-length transactions with unaffiliated parties, or engage in any transaction with any Affiliate involving any intent to hinder, delay or defraud any entity; (j) engage in any business activity or operate for any purpose other than as stated above; or (k) without the consent of its General Partner (as granted in accordance with its organizational documents, including any requirements thereof with respect to approval by independent directors), file a bankruptcy or insolvency petition or otherwise institute bankruptcy proceedings. V. Additional Requirements for Partners. So long as any indebtedness is outstanding under the Loan Documents, each Partner which is an entity shall: (a) observe all customary formalities necessary to maintain its identity as an entity separate and distinct from the Limited Partnership and all of its other Affiliates; (b) hold itself out as a separate and distinct entity from the Limited Partnership and not identify the Limited Partnership as a division of the Partner; and (c) not take any action that would cause a violation of the Loan Documents. VI. Limited Partnership Agreement. The Limited Partnership Agreement of the Limited Partnership, as amended or restated from time to time, may contain additional covenants and provisions relating to the Loan Documents and/or the Properties, which shall be binding on the Limited Partnership. In the event of any conflict between this Amended and Restated Certificate of Limited Partnership and such Limited Partnership Agreement, this Amended and Restated Certificate of Limited Partnership shall take precedence. -4- VII. List of Properties. The Properties as of the date hereof consist of the following Residence Inn(R) By Marriott(R) hotels: Akron, Ohio Jacksonville, Florida 120 Montrose West Avenue 8365 Dix Ellis Trail Akron, OH 44321 Jacksonville, FL 32256 Arcadia, California Kalamazoo, Michigan 321 East Huntington Drive 1500 East Kilgore Arcadia, CA 91006 Kalamazoo, MI 49001 Birmingham, Alabama Las Vegas, Nevada 3 Greenhill Parkway at U.S. Hwy. 280 3225 Paradise Road Birmingham, AL 35242 Las Vegas, NV 89109 Boca Raton, Florida Lubbock, Texas 525 N.W. 77/th/ Street 2551 South Loop 289 Boca Raton, FL 33487 Lubbock, TX 79423 Boston/Danvers, Massachusetts Memphis, Tennessee 51 Newbury Street- U.S. Route 1 6141 Old Poplar Pike Danvers, MA 01923 Memphis, TN 38119 Charlotte, North Carolina Pensacola, Florida 8503 N. Tryon Street 7230 Plantation Road Charlotte, NC 28262 Pensacola, FL 32504 Chicago/Deerfield, Illinois Philadelphia/Berwyn, Pennsylvania 530 Lake Cook Road 600 West Swedesford Road Deerfield, IL 60015 Berwyn, PA 19312 Clearwater/St. Petersburg, Florida Placentia, California 5050 Ulmerton Road 700 West Kimberly Ave. Clearwater, FL 33760 Placentia, CA 92870 Columbia, South Carolina Santa Fe, New Mexico 150 Stoneridge Drive 1698 Galisteo Street Columbia, SC 29210 Santa Fe, NM 87505 Greensboro, North Carolina Spartanburg, South Carolina 2000 Veasley Street 9011 Fairforest Road Greensboro, NC 27407 Spartanburg, SC 29301 Irvine, California 10 Morgan Street Irvine, CA 92618 Jackson, Mississippi 881 East River Place Jackson, MS 39202 -5- IN WITNESS WHEREOF, the sole general partner of the Limited Partnership has executed this Amended and Restated Certificate of Limited Partnership on the date of filing, as set forth below: Date of Filing: August 29, 2002 General Partner: AHM Res II GP, Inc. By: /s/ J. Philip Hart --------------------------- J. Philip Hart Vice President -6-