THIRD AGREEMENT OF AMENDMENT, made as of January 1, 1992, by and
among the parties to the Fourth Amended and Restated Agreement of Limited
Partnership, made as of January 1, 1991 (as amended, the "Limited Partnership
Agreement") of Glickenhaus & Co., a New York limited partnership (the
"Partnership").
RECITALS
The parties hereto wish to amend the Limited Partnership Agreement to
reflect the admission of Xxxxxx X. Xxxxxxx to the Partnership as a General
Partner, and the admission of Xxxxxxx X. Xxxxxxxx, Xxxxxx X. Xxxxxx, Xxxxxxx X.
Xxxxxxx and Xxxxx X. Xxxxxxxx to the Partnership as Special Limited Partners.
IT IS AGREED:
1. The Preamble to the Limited Partnership Agreement is hereby
amended in its entirety to read as follows:
THIS FOURTH AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
(the "Agreement"), dated as of
January 1, 1991, of Glickenhaus &
Co., a New York limited partnership
(the "Partnership"), is by and among
those persons listed on Schedule A
annexed hereto (the "General Partners"),
those persons listed on Schedule B
annexed hereto (the "Regular Limited
Partners") and those persons listed
on Schedule C annexed hereto (the
"Special Limited Partners").
2. SCHEDULE A of the Limited Partnership Agreement is hereby amended
in its entirety to read as follows:
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Schedule A
Name & Address
Xxxx X. Xxxxxxxxxxx
000 Xxxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Xxxxxx Xxxxxxx
00 Xxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Xxxxxx X. Xxxxx
0 Xxxxxxx Xxxxx
Xxxxxxxxx Xxxx, XX
Xxxxxx Xxxx Xxxxx
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxx Xxxxxxx
0 Xxxxx Xxxx Xxxxxx, XX 00000
Xxxxxx X. Xxxxxxx 00 Xxxxxxxxx
Xxxxx Xxxxxxx, XX 00000
3. A new SCHEDULE C is hereby added to the Limited Partnership
Agreement to read as follows:
SCHEDULE C
Name & Address
Xxxxxxx X. Xxxxxxxx
00 Xxxxxxxxx Xxxxx
Xxx. 0X
Xxxxxxxxx, XX 00000
Xxxxxx X. Xxxxxx
00 Xxxxxx Xxxxx Xxxx
Xxxxxxxxx, Xx 00000
Xxxxxxx X. Xxxxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxx X. Xxxxxxxx
0 Xxxxx Xxxxxx
Xxxxxxx, XX 00000
4. The first WHEREAS Clause appearing in the Recitals of the Limited
Partnership Agreement is hereby deleted in its entirety.
5. The definition of "Limited Partners" set forth in Article I of the
Limited Partnership Agreement is hereby amended in its entirety to read as
follows:
"Limited Partners" means the Regular
Limited Partners and the Special
Limited Partners, unless any or all
of the Special Limited Partners
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shall expressly be excluded or the
context shall require otherwise. A
"Limited Partner" means any one of
them.
6. Article I of the Limited Partnership Agreement is hereby further
amended by added a new definition entitled "Special Limited Partners" to read as
follows:
"Special Limited Partners" means
those persons described on Schedule
C annexed thereto, and a "Special
Limited Partner" means any one of them.
7. Section 2.1 of Article II of the Limited Partnership Agreement is
hereby amended in its entirety to read as follows:
The Partners formed the Partnership by the filing of
a Limited Partnership Certificate (the "Certificate")
with the County Clerk of New York County, New York on
April 26, 1961. The Partners adopted the Revised
Limited Partnership Act (the "Partnership Law") by
filing a Certificate of Adoption of the Partnership
Law with the Department of State on November 1, 1991.
The Partnership shall be governed by the Partnership
Law and the rights and liabilities of the Partners
shall be as provided by the Partnership Law. The
General Partners shall execute, file and record an
amendment to the Certificate if and to the extent
necessary or appropriate to reflect changes in terms
therein occasioned by the execution of this
Amendment.
8. Section 3.5 of Article III of the Limited Partnership Agreement is
hereby amended in its entirety to read as follows:
No Limited Partner shall be liable
for or subject to any obligations,
losses, debts or liabilities of the
Partnership at any time in excess of
the sum of the amount of such
Limited Partner's Capital Account at
such time. Notwithstanding the
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foregoing, the Capital Accounts of
the Special Limited Partners (as
distinguished from the Regular
Limited Partners) shall not be
reduced by Partnership debts, losses
or liabilities until the Capital
Accounts of all other Partners have
been reduced to zero.
9. Section 4.3 of Article IV of the Limited Partnership Agreement is
hereby amended in its entirety to read as follows:
Except as provided in Section
4.1(c), the Limited Partners shall
take no part in the management of
the Partnership business and shall
have no power to act for or to bind
the Partnership. The Partnership
may engage any Limited Partner,
including any Special Limited
Partner, as an employee of the
Partnership, in which event his
duties and liabilities with respect
to the business and interests of the
Partnership shall be governed by his
employment agreement with the
Partnership, if any, or otherwise in
accordance with the legal principles
governing employment.
10. Section 5.1 of Article V of the Limited Partnership Agreement is
hereby amended in its entirety to read as follows:
Each General Partner agrees to
devote his full time and attention
to the business of the Partnership
and the Designated Affiliates and
shall not engage in any other
business during the term of this
Agreement, or any renewal thereof,
except for passive investments in
business activities which are not
competitive with any business
activity of the Partnership or the
Designated Affiliates. during the
term of this Agreement, no General
Partner or Special Limited Partner
shall, for his own account, without
the consent of General Partners
holding a majority in interest of
the General Partner Percentage
Interests, enter, individually, into
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475258.1
any dealings or transactions with respect to any
aspect of the Partnership's business or the business
of the Designated Affiliates, or otherwise directly
or indirectly own any interest in any company,
business of enterprise, which engages in business
activities competitive with any business activity of
the Partnership or the Designated Affiliates, except
that a Partner may have a direct or indirect
ownership interest of up to .5% of any class of
publicly traded equity or debt securities in any
business organization. The execution of this
Agreement shall be deemed the consent of General
Partners holding a majority interest in General
Partner Percentage Interests to the conduct of any
such activities by Xxxx X. Xxxxxxxxxxx. Each Limited
Partner, other than the Special Limited Partners, may
engage or invest in any other venture of any nature
or description, or possess any interest therein,
independently or with others.
11. Section 6.1 of Article VI of the Limited Partnership Agreement is
hereby amended by adding the following entry to the table listed therein: "(6)
Xxxxxx X. Xxxxxxx $150,000".
12. Paragraph 7.3(a)(2)(iii) of Article VII of the Limited Partnership
Agreement is hereby amended in its entirety to read as follows:
(iii) Investment Management Profits
remaining shall be allocated among
the Partners listed below in the
following percentages:
Xxxx X. Xxxxxxxxxxx 53.92%
Xxxxx X. Xxxxxxxxxxx 16.87%
Xxxxx Xxxxx Pier 9.73%
Xxxxx X. Xxxxxxxxxxx 9.73%
Xxxxxx X. Xxxxx 3.05%
Xxxxxx Xxxx Xxxxx 3.05%
Xxxxxx X. Xxxxxxx 3.05%
Xxxxxx X. Xxxxxxx .60%
------
100.00%
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13. In Paragraph 7.3(b)(1), the definition of "Real Estate Expenses"
is hereby revised to delete clause (A) and to redesignate clauses (B) and (C) to
be clauses (A) and (B).
14. Paragraph 7.3(c)(1)(ii) of Article VII of the Limited Partnership
Agreement is hereby amended in its entirety to read as follows:
(ii) Other Partnership Profits
remaining shall be allocated among
the Partners set forth below in the
following percentages (collectively, the "Percentage
Interests", individually, a "Percentage Interest",
with respect to any General Partner, a "General
Partner Percentage Interest" and, with respect to all
General Partners, collectively, the "General Partner
Percentage Interests"):
Xxxx X. Xxxxxxxxxxx 53.64%
Xxxxx X. Xxxxxxxxxxx 21.11%
Xxxxx Xxxxx Pier 8.08%
Xxxxx X. Xxxxxxxxxxx 8.08%
Xxxxxx X. Xxxxx 2.53%
Xxxxxx Xxxx Xxxxx 2.53%
Xxxxxx X. Xxxxxxx 2.53%
Xxxxxx Xxxxxxx 1.00%
Xxxxxx X. Xxxxxxx .50%
-------
100.00%
15. Paragraph 7.3(c)(2) of Article VII of the Limited Partnership
Agreement is hereby amended in its entirety to read as follows:
(2) Allocation of other Partnership Losses.
Partnership losses other than Real Estate
Losses (the "Other Partnership Losses") for
each Fiscal Year shall be allocated among the
Partners in accordance with their respective
Percentage Interests.
16. Paragraphs 11.2(a)(iii) and (iv) of Article XI of
the Limited Partnership Agreement are hereby deleted and replaced
with the following:
(iii) To each Special Limited Partner
in accordance with the positive balance
in his Capital Account, if any, or if amounts
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available therefor are insufficient to repay such
amounts, proportionately to each such Partner
according to the ratio that the positive balance in
the Capital Account, if any, of such Partner bears to
the aggregate positive balances in the Capital
Accounts of all such Partners;
(iv) To each Partner other than the Special Limited
Partners in accordance with the positive balance in
his Capital Account, if any, or if amounts available
therefor are insufficient to repay such amounts,
proportionately to each such Partner according to the
ratio that the positive balance in the Capital
Account, if any, of such Partner bears to the
aggregate positive balances in the Capital Accounts
of all such Partners; and
(v) To the Partners in accordance with their
respective Percentage Interests.
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17. As herein modified, the Limited Partnership Agreement shall remain
in full force and effect.
IN WITNESS WHEREOF, the parties hereto have entered into this
Amendment as of January 1, 1992.
GENERAL PARTNERS:
________________________________________
Xxxx X. Xxxxxxxxxxx
________________________________________
Xxxxxx Xxxxxxx
________________________________________
Xxxxxx X. Xxxxx
________________________________________
Xxxxxx Xxxx Xxxxx
________________________________________
Xxxxxx X. Xxxxxxx
________________________________________
Xxxxxx X. Xxxxxxx
LIMITED PARTNERS:
________________________________________
Xxxxx X. Xxxxxxxxxxx
________________________________________
Xxxxx Xxxxx Pier
________________________________________
Xxxxx X. Xxxxxxxxxxx
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SPECIAL LIMITED PARTNERS:
________________________________________
Xxxxxxx X. Xxxxxxxx
________________________________________
Xxxxxx X. Xxxxxx
________________________________________
Xxxxxxx X. Xxxxxxx
________________________________________
Xxxxx X. Xxxxxxxx
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