1
EXHIBIT 10.41
AGREEMENT OF LIMITED PARTNERSHIP OF
XXXXX-PW HOTEL LIMITED PARTNERSHIP
2
TABLE OF CONTENTS
PAGE
----
ARTICLE I FORMATION
1.01 Formation.............................................. 2
1.02 Name................................................... 2
1.03 Place of Business...................................... 2
1.04 Term................................................... 3
ARTICLE II DEFINITIONS............................................ 3
ARTICLE III PURPOSE AND BUSINESS
3.01 Business............................................... 16
3.02 Authorized Activities.................................. 16
ARTICLE IV PARTNERSHIP INTERESTS AND CAPITAL
4.01 General Partner........................................ 19
4.02 Limited Partner........................................ 20
4.03 Loans and Capital Contributions to the
Partnership by the Partners.......................... 21
4.04 Default by General Partner............................. 25
4.05 Interest............................................... 28
4.06 Capital Account........................................ 28
4.07 Withdrawal of Capital Contributions.................... 28
4.08 Restoration of Negative Capital
Accounts............................................. 29
ARTICLE V PROFITS, LOSSES AND DISTRIBUTIONS
5.01 Determination of Profits and Losses.................... 29
5.02 Allocation of Profits and Losses
from Operations...................................... 29
5.03 Profits and Losses from Capital
Transactions......................................... 33
5.04 Distribution of Net Operating
Revenues.............................................. 37
5.05 Distribution of Proceeds of Capital
Transactions other than in
Liquidation.......................................... 38
5.06 Partnership Adjustments................................ 39
5.07 Allocation to Transferred Interests.................... 40
i
3
PAGE
----
ARTICLE VI RIGHTS AND OBLIGATIONS OF THE GENERAL
PARTNERS
6.01 Management............................................. 41
6.02 Authority.............................................. 41
6.03 Limitations on General Partner......................... 42
6.04 Additional Limitations................................. 47
6.05 Business with Affiliates............................... 47
6.06 Liability for Acts and Omissions....................... 48
6.07 Other Activities....................................... 50
6.08 Classification as a Partnership........................ 50
6.09 Net Worth of General Partner........................... 51
6.10 Management............................................. 51
ARTICLE VII WITHDRAWAL OF GENERAL PARTNER
7.01 Assignment or Withdrawal by
General Partner....................................... 51
7.02 Involuntary Withdrawal of a General
Partner............................................... 52
7.03 Obligations of a Prior General Partner................. 52
7.04 Remaining General Partner.............................. 52
7.05 Removal of General Partner............................. 53
7.06 Successor General Partner.............................. 55
7.07 Additional Limitation on
Transferability...................................... 56
7.08 Permitted Assignments by
the General Partner.................................. 56
ARTICLE VIII RIGHTS AND OBLIGATIONS OF THE LIMITED PARTNER
8.01 Management of the Partnership.......................... 58
8.02 Limitation on Liability................................ 59
8.03 Power of Attorney...................................... 59
8.04 Admission of Additional Partners....................... 62
ARTICLE IX TRANSFER OF LIMITED PARTNERSHIP INTERESTS
9.01 No Unpermitted Transfers............................... 62
9.02 Assignment by Limited Partner.......................... 62
9.03 Substitute Limited Partner............................. 64
9.04 Involuntary Withdrawal by Limited
Partner.............................................. 65
ii
4
PAGE
----
9.05 Additional Limitation on
Transferability....................................... 66
ARTICLE X DISSOLUTION AND LIQUIDATION
10.01 Dissolution............................................ 66
10.02 Liquidation of Partnership Assets...................... 67
ARTICLE XI RECONSTITUTION
11.01 Reconstitution......................................... 69
11.02 Continuation of Business............................... 69
ARTICLE XII ACCOUNTING AND REPORTS
12.01 Books and Records...................................... 70
12.02 Annual Tax Returns..................................... 71
12.03 Reports to Partners.................................... 72
12.04 Partnership Funds...................................... 73
ARTICLE XIII AMENDMENTS AND MEETINGS
13.01 Amendment Procedure.................................... 74
13.02 Meetings and Voting.................................... 74
ARTICLE XIV MISCELLANEOUS
14.01 Title to Partnership Property.......................... 75
14.02 Validity............................................... 75
14.03 Applicable Law......................................... 76
14.04 Binding Agreement...................................... 76
14.05 Waiver of Action for Partition......................... 76
14.06 Headings............................................... 76
14.07 Terminology............................................ 76
14.08 Right of First Offer................................... 77
14.09 General Partner Representations........................ 83
14.10 Counterparts........................................... 87
14.11 Entire Agreement....................................... 88
14.12 Arbitration............................................ 88
14.13 Security Interest in Limited
Partner's Interest................................... 88
iii
5
PAGE
----
14.14 Transfer, Financing of Land............................ 90
14.15 Use of Certain Capital Proceeds
by the Limited Partner................................ 91
14.16 Limited Partner Representations........................ 92
Exhibit "A" Description of Land
Exhibit "B" Terms of Commitment
Exhibit "C" Easements
Exhibit "D" Contracts
Exhibit "E" Taxes
iv
6
AGREEMENT OF LIMITED PARTNERSHIP OF
XXXXX-PW HOTEL LIMITED PARTNERSHIP
THIS AGREEMENT OF LIMITED PARTNERSHIP is made as of the 14th day of
April, 1986, between XXXXX MOUNTAIN INDUSTRIES, INC., a New York corporation
(the "General Partner"), as general partner, and PAINEWEBBER INCORPORATED, a
Delaware corporation (the "Limited Partner"), as limited partner. The Limited
Partner and the General Partner may be referred to herein individually as a
"Partner" and collectively as the "Partners."
WITNESSETH:
WHEREAS, the parties hereto desire to form a limited partnership (the
"Partnership") for the purpose of entering into the Ground Lease and of
constructing the Improvements, which Land leased pursuant to the Ground Lease is
currently owned by the General Partner, and for the purposes hereinafter set
forth.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto hereby form the Partnership pursuant to the laws
of the State of New Jersey, upon the following terms and conditions:
7
ARTICLE I
FORMATION
1.01 Formation. The Partnership is being formed as a limited partnership
under the laws of the State of New Jersey. Upon execution of this Agreement by
all parties, the General Partner and the Limited Partner shall execute a
certificate of limited partnership of the Partnership to reflect the provisions
of this Agreement, and all such other certificates and documents conforming
thereto, and shall do all such filing, recording, and publishing, and the
General Partner shall take all other necessary action, required by law to
perfect and maintain the Partnership as a limited partnership under the Act or
under the laws of all other jurisdictions in which the Partnership may elect to
conduct business.
1.02 Name. The name of the Partnership shall be "XXXXX-PW HOTEL LIMITED
PARTNERSHIP", which name may be changed by the General Partner after Notice to
the Partners.
1.03 Place of Business. The principal office and place of business of
the Partnership shall be located at 000 Xxxxx Xxxxx, X.X. Xxx 0000, Xxxxxxxx,
Xxx Xxxxxx 00000. The General Partner may change the location of the
Partnership' 5 principal office and may establish such
2
8
additional offices of the Partnership as it may from time to time determine
after Notice to the Partners.
1.04 Term. The Partnership shall continue in full force and effect until
December 31, 2086, unless sooner dissolved in accordance with the provisions of
this Agreement.
ARTICLE II
DEFINITIONS
The following terms have the definitions hereinafter indicated whenever
used in this Agreement with initial capital letters:
2.01 Act: The Revised New Jersey Uniform Limited Partnership Act,
N.J.S.A. 42: 2A-1 et. seq. as it may be amended from time to time.
2.02 Affiliate: When used with reference to a specific Person, a Person
who (i) directly, or indirectly through one or more intermediaries, controls, is
controlled by or is under common control with, the specified Person; (ii) is a
partner of the specified Person; (iii) owns or controls ten percent (10%) or
more of the outstanding voting securities of the specified Person; or, (iv) is
an entity in which the specified Person is a partner.
3
9
2.03 Agreement: This Agreement of Limited Partnership, as it may be
amended from time to time.
2.04 Bankruptcy: For purposes of this Agreement the institution by a
referenced Person of a voluntary case in bankruptcy, or the voluntary taking
advantage by a referenced Person of any bankruptcy or insolvency law, or the
adjudication of such Person as bankrupt or insolvent, or the filing by such
Person of any petition or answer seeking for itself any reorganization,
arrangement, composition, readjustment, liquidation, dissolution or similar
relief under any present or future statute, law or regulation, or the filing by
such Person of any answer admitting (or the failure by such Person to make a
required responsive pleading to) the material allegations of a petition filed
against such Person in any such proceeding or the seeking or consenting to or
acquiescence in the judicial appointment of any trustee, fiscal agent, receiver
or liquidator of such Person or of all or any substantial part of its properties
or the taking of any action looking to its dissolution or liquidation, or if,
within ninety (90) days after the commencement of an involuntary case or action
against such Person seeking any bankruptcy, reorganization, arrangement,
composition, readjustment, liquidation, dissolution
4
10
or similar relief under any present or future statute, law or regulation, the
failure of such case or action to have been dismissed or all orders in
proceedings thereunder affecting the operations or the business of such Person
stayed, or if the stay of any such order or proceeding thereafter shall be set
aside, or if, within ninety (90) days after the judicial appointment without the
consent or acquiescence of such Person of any trustee, fiscal agent, receiver or
liquidator of such Person or of all or any substantial part of its properties,
such appointment shall not have been vacated, such insolvency being deemed to
occur when such Person shall make a general assignment for the benefit of
creditors or shall admit in writing that its assets are insufficient to pay its
liabilities as they come due.
2.05 Budget: On or before the thirtieth (30th) day after the
commencement date of each Fiscal Year, the General Partner shall submit to the
Limited Partner a budget for such Fiscal Year for the operation of the business
of the Partnership.
2.06 Capital Account: The account maintained by the Partnership for each
Partner which, as of any given date, reflects its Capital Contributions paid to
the Partnership (i) increased to reflect its distributive
5
11
share of Partnership income and gain (or item thereof), including income exempt
from tax, for each Fiscal Year (or fraction thereof), and (ii) decreased to
reflect its distributive share of Partnership losses and deductions for each
Fiscal Year (or fraction thereof) and the amount of cash or the fair market
value of property distributed by the Partnership to it and its distributive
share of expenses of the Partnership described in Section 705(a)(2)(B) of the
Code. In addition, Capital Accounts shall be adjusted to take account of any
other items which give rise to Capital Account adjustments under the regulations
issued pursuant to Section 704 of the Code, as finally adopted.
2.07 Capital Contribution: The total amount of money or the fair market
value of other property contributed by each Partner to the Partnership pursuant
to the terms of this Agreement, including the Capital Contributions made by any
predecessor holders(s) of the Interest of such Partner.
2.08 Capital Proceeds: The aggregate of (i) the net cash proceeds
resulting from any condemnation of the Property (and not used to repair or
restore the Property or applied by the holder of the First Mortgage or of any
other mortgage or deed of trust affecting the
6
12
Property to the reduction of the principal amount thereof), (ii) the net cash
proceeds resulting from the settlement of any title, fire or extended coverage
insurance claim (and not used to repair or restore the Property or applied by
the holder of the First Mortgage or any other mortgage of deed of trust
affecting the Property, to the reduction of the principal amount thereof), (iii)
the net cash proceeds from the sale of all or a portion of the Property, (iv)
the net cash proceeds actually received by the Partnership from the refinancing
of any mortgage or deed of trust affecting the Property, including the First
Mortgage (and not applied to the reduction of the Partnership's liabilities,
used to pay the expenses of the Partnership in connection with such refinancing,
to repair or improve the Property or set aside by the General Partner to create
or maintain reasonable reserves for improvements to the Property), and (v) any
reserves previously set aside from Capital Proceeds which are deemed available
for distribution by the General Partner or Liquidator .
2.09 Capital Transaction: Any event giving rise to Capital Proceeds.
7
13
2.10 Code: The Internal Revenue Code of 1954, as amended from time to
time, and any successor statute.
2.11 Commitment: A loan commitment on the terms set forth on Exhibit "B"
annexed hereto and made a part hereof.
2.12 Commencement Date: Shall have the meaning set forth in the
Hotel/Office Lease.
2.13 Consent: Either the written consent of a Person, or the affirmative
vote of such Person at a meeting duly called and held pursuant to this
Agreement, as the case may be, to do the act or thing for which the Consent is
solicited, or the act of granting such Consent, as the context may require.
2.14 Deficit Capital Contributions: Shall have the meaning set forth in
Section 4.03 hereof.
2.15 Easements: The easements more particularly described in Exhibit "C"
annexed hereto and made a part hereof.
2.16 First Mortgage: The first mortgage, to be entered into pursuant to
the Commitment, affecting the Properties, and any modification, extension or
replacement thereof.
8
14
2.17 Fiscal Year: The taxable year of the Partnership, which shall be
the calendar year.
2.18 General Partner: Xxxxx Mountain Industries, Inc. and any and all
other Persons who become successor General Partner in accordance with the
provisions of the Agreement.
2.19 Ground Lease: The Ground Lease, dated of even date herewith,
between the General Partner, as landlord, and the Partnership, as tenant,
pursuant to which the General Partner leased to the Partnership the Land and the
Easements.
2.20 Guarantee: The Guarantee, dated of even date herewith, by the
Limited Partner, as guarantor, for the benefit of the General Partner.
2.21 Xxxxx Lease: The Lease, dated of even date herewith, between the
Partnership, as Landlord, and the General Partner, as tenant, pursuant to which
the Partnership leased the retail portion of the Improvements to the General
Partner.
2.22 Hotel/Office Lease: The Lease, dated of even date herewith, between
the Partnership, as landlord, and the Limited Partner, as tenant, pursuant to
which the Partnership leased a portion of the office portions of the
Improvements to the Limited Partner.
9
15
2.23 Improvements: The 437,500 square foot office and hotel building to
be constructed on the Land.
2.24 Interest: The ownership interest of a Partner in the Partnership at
any particular time, including the right of such Partner to any and all benefits
to which such Partner may be entitled as provided in this Agreement and, to the
extent not inconsistent with this Agreement, in the Act, together with the
obligations of such Partner to comply with all the terms and provisions of this
Agreement and of the Act, which ownership Interest for voting and certain other
purposes of this Agreement shall, absent proof to the contrary, be as set forth
in Article IV of this Agreement.
2.25 IRS: The Internal Revenue Service, an agency of the United States
Government.
2.26 Land: The land more particularly described in Exhibit "A" annexed
hereto and made a part hereof.
2.27 Lease Acquisition Agreement: The Lease Acquisition Agreement, dated
of even date herewith, among Xxxxx-PW Limited Partnership, PaineWebber
Incorporated and Xxxxx Mountain Industries, Inc.
10
16
2.28 Leasehold Estate: The leasehold estate created by the Ground Lease.
2.29 Limited Partner(s): The Limited Partner, and any and all Persons
who become a Substitute Limited Partner in accordance with the provisions of
this Agreement.
2.30 Liquidator: The General Partner or, if there is no General Partner
at the time in question, a Person designated by the Limited Partner to act as
Liquidator, or if the Limited Partner does not designate a Person to act as
Liquidator, such other Person who may be appointed in accordance with applicable
law, who shall be responsible for taking all action necessary or appropriate to
wind up the affairs of, and distribute the assets of, the Partnership upon its
dissolution.
2.31 MAI Appraiser: Shall have the meaning set forth in Section 14.08
hereof.
2.32 Net Operating Revenues: For any period, Operating Revenues, less
Operating Expenses.
2.33 Notice: A writing containing the information required by this
Agreement to be communicated to a Person and personally delivered to such Person
or sent by registered or certified mail, postage prepaid, return receipt
requested, to such Person at the last known
11
17
address of such Person as shown on the books of the Partnership, the date of
personal delivery, registry or certification, as the case may be, being deemed
the effective date of such Notice.
2.34 Operating Deficits: For any period, any shortfall in the Operating
Revenues over the Operating Expenses.
2.35 Operating Deficit Loan: Shall have the meaning set forth in Section
4.03 hereof.
2.36 Operating Expenses: For any period, all costs and expenses
(including capital expenditures) of operation and management of the Partnership
and the Properties, including, without limitation, any rent due pursuant to the
Ground Lease determined on an accrual basis and any reasonable operating
reserves set aside by the General Partner, but excluding any debt service on the
First Mortgage or any other financing.
2.37 Operating Revenues: For any period, the sum of (i) all receipts of
the Partnership determined on an accrual basis, excluding Capital Proceeds and
Capital Contributions, (ii) the net proceeds of any insurance, other than title
or fire and extended coverage insurance, and (iii) any reserves previously set
aside from Operat-
12
18
ing Revenues which are deemed available by the General Partner.
2.38 Partner(s): The General Partner, the Limited Partner, any
Substitute Limited Partner and any Special Limited Partner.
2.39 Partnership: Shall have the meaning set forth in the first WHEREAS
clause of this Agreement, as said limited partnership may from time to time be
constituted.
2.40 Partnership Accountants: Any firm of certified public accountants
reasonably satisfactory to the Partners.
2.41 Partnership Assets: All property and assets, whether real or
personal, tangible or intangible, at any time owned by the Partnership or in
which the Partnership shall have all interest, including, without limitation,
the Ground Lease and the Improvements.
2.42 Person: Any individual, partnership, corporation, trust or other
entity.
2.43 Prime Rate: The rate of interest publically announced from time to
time by Citibank, N.A., or its successors, as its "base rate" (or such other
term as may be used by Citibank, N.A., from time to time, for the rate presently
referred to as its "base rate").
13
19
2.44 Property: The estate created by the Ground Lease, together with the
Improvements.
2.45 Purchase Option Agreement: The Purchase Option Agreement, dated of
even date herewith, between the General Partner and the Limited Partner.
2.46 Purchase Price: Shall have the meaning set forth in Section 14.08
hereof.
2.47 Receiving Partner: Shall have the meaning set forth in Section
14.08 hereof.
2.48 Sending Notice: Shall have the meaning set forth in Section 14.08
hereof.
2.49 Sending Partner: Shall have the meaning set forth in Section 14.08
hereof.
2.50 Special Limited Partner: Shall have the meaning set forth in
Section 7.05 hereof.
2.51 Substitute Limited Partner(s): Any Person admitted to the
Partnership as a Limited Partner pursuant to Section 9.03 hereof.
2.52 Successor Limited Partnership: A limited partnership which shall
continue the business of the Partnership following its dissolution and
reconstitution in accordance with the provisions of Article XI.
14
20
2.53 Title Commitment: Shall have the meaning set forth in Section 14.09
hereof.
2.54 Transfer: Shall have the meaning set forth in Section 7.01 hereof.
2.55 Transportation and Completion Agreement: The Transportation and
Completion Agreement, dated of even date herewith, between Xxxxx-PW Limited
Partnership and PaineWebber Incorporated.
15
21
ARTICLE III
PURPOSE AND BUSINESS
3.01 Business. The principal purpose and character of the business of
the Partnership shall be to acquire, own, construct, renovate, hold for capital
appreciation and finance the Property, to cause the General Partner to complete
construction of the Improvements, to manage, rent and otherwise operate the
Property, to sell, exchange, dispose of, lease, mortgage and otherwise encumber
all or any part of the Property, to incur indebtedness, whether secured or
unsecured, for any of the foregoing purposes, and to engage in any other kind of
lawful activity for profit related to the foregoing.
3.02 Authorized Activities. In carrying out the purposes of this
Partnership, but subject to all other provisions of this Agreement and
applicable law, the Partnership is empowered and authorized to:
(A) lease, hold and operate the Property for any legal use,
including, without limitation, hotel use, and any other real or personal
property which may be necessary, convenient or incidental to the accomplishment
of the purposes of the Partnership and, in appropriate circumstances, to sell,
transfer or otherwise dispose of the Property;
16
22
(B) construct, renovate, operate, maintain, finance, improve,
own, sell, convey, assign, mortgage or lease any real estate and any personal
property necessary, convenient or incidental to the accomplishment of the
purposes of the Partnership;
(C) borrow money and issue evidences of indebtedness in
furtherance of the Partnership business, and to secure the same by mortgage,
pledge or other lien on any assets of the Partnership; provided that such
evidence of indebtedness and documents securing the same, if any, shall
effectively provide in substance and legal effect that the Limited Partner shall
not have any personal liability for the payment of such indebtedness beyond its
Interest;
(D) enter into, perform and carry out contracts of any kind,
including contracts with Affiliates of the General Partner pursuant to Section
6.04, necessary or incidental to the accomplishment of the purposes of the
Partnership;
(E) bring and defend actions at law or in equity or arbitration;
17
23
(F) purchase, cancel or otherwise retire or dispose of the
Interest of any Partner pursuant to the express provisions of this Agreement;
(G) execute and deliver all documents for the sale of Interests;
(H) prepay, in whole or in part, refinance, recast, increase,
reduce, modify, or extend mortgages (including, without limitation, the First
Mortgage) affecting the Property, and in connection therewith to execute any
extensions, renewals or modifications of any mortgage or deed of trust on the
Property;
(I) sell, exchange, dispose of or refinance mortgages
(including, without limitation, the First Mortgage) on all or part of the
Partnership property;
(J) make interim investments in government obligations, insured
obligations, bank time deposits, commercial paper, tax-exempt investments, money
market funds, certificates of deposit and banker's acceptances; and
(K) engage in any kind of lawful activity, and perform and carry
out contracts of any kind, necessary or advisable in connection with the
accomplishment of the purposes of the Partnership.
18
24
ARTICLE IV
PARTNERSHIP INTERESTS AND CAPITAL
4.01 General Partner:
(A) The address of the General Partner is 000 Xxxxx Xxxxx, X.X.
Xxx 0000, Xxxxxxxx, Xxx Xxxxxx 00000.
(B) The General Partner previously has contributed to the
Partnership in cash an initial Capital Contribution of $791. As of the date
hereof, the Capital Account of the General Partner is equal to $791.
(C) The General Partner shall be obligated to make the Operating
Deficit Loans or Deficit Capital Contributions to the Partnership as set forth
in, and when required pursuant to, Section 4.03 hereof and to make such
additional Capital Contributions as are required in order to complete the
Improvements in accordance with the provisions of the Ground Lease and the
Hotel/Office Lease, but may not make any other additional Capital Contributions
to the Partnership.
(D) The General Partner shall fund any and all costs and
expenses of the Property from the date hereof through the day prior to the Fixed
Rent Commencement Date (as such term is defined in the Hotel/Office
19
25
Lease) to the extent required by reason of the Partnership having insufficient
funds for such purpose.
(E) Nothing contained in this Agreement shall be deemed to
create any third party beneficiary status, or grant any rights to any Capital
Contributions, to any party or Person who is not a Partner.
4.02 Limited Partner.
(A) The address of the Limited Partner is 0000 Xxxxxx xx xxx
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
(B) The Limited Partner has contributed to the Partnership in
cash an initial Capital Contribution of $209. As of the date hereof, the Capital
Account of the Limited Partner is equal to $209.
(C) The Limited Partner may make the Limited Partner Loan or
Additional Capital Contributions as set forth in Section 4.03 hereof but shall
not be required to make any additional loans or Capital Contributions to the
Partnership.
(D) Nothing contained in this Agreement shall be deemed to
create any third party beneficiary status, or grant any rights to any Capital
Contributions, to any party or Person who is not a Partner.
20
26
4.03 Loans and Capital Contributions to the Partnership by the Partners.
(A) Upon the occurrence of Operating Deficits or if the Net
Operating Revenues shall be insufficient to pay all debt service on any loan,
secured or unsecured, including without limitation, the First Mortgage,
affecting the Property or the Partnership, for any reason other than the failure
of (i) the Limited Partner being in default under the Guarantee or (ii) the
tenant under the Hotel/Office Lease to make any payments required thereunder,
including, without limitation, a failure to make any such payments in connection
with bankruptcy proceedings and whether or not the trustee in bankruptcy shall
disaffirm the Hotel/Office Lease, the General Partner shall be obligated, from
time to time, at its option either (x) to lend (collectively, the "Operating
Deficit Loan") to the Partnership such funds, (y) to make Capital Contributions
(the "Deficit Capital Contributions") of such funds, or (z) cause the
Partnership to borrow such funds pursuant to Section 4.03(C) hereof, as may be
necessary to fund such Operating Deficits and debt service on the First Mortgage
and other financing, upon the terms and conditions hereinafter set forth;
provided, however, that if such Operating Deficits shall arise by
21
27
reason of a required capital expenditure, the General Partner shall use its best
efforts to cause the Partnership to borrow such funds prior to making any
Operating Deficit Loan or Deficit Capital Contribution. Notwithstanding the
foregoing, however, the General Partner may make neither an Operating Deficit
Loan nor make Deficit Capital Contributions nor cause the Partnership to borrow
funds in connection with Operating Deficits to the extent the same shall arise
by reason of the failure of the tenant under the Xxxxx Lease to make any payment
required thereunder. Subsequent to the twenty-fifth (25th) anniversary of the
Commencement Date (as such term is defined in the Hotel/Office Lease), the
General Partner shall have the right, but not the obligation, to make Operating
Deficit Loans and Deficit Capital Contributions.
(B) The Operating Deficit Loan shall bear interest at a rate
equal to that charged under the First Mortgage, compounded annually. The
Operating Deficit Loan, as well as interest thereon, shall be repayable in
accordance with the provisions of Sections 5.04 and 5.05 hereof. The Deficit
Capital Contributions shall be repaid, together with an amount in the nature of
interest calculated at a rate equal to that charged under the
22
28
First Mortgage, compounded annually, in accordance with the provisions of
sections 5.04 and 5.05 hereof.
(C) Notwithstanding anything contained in Paragraph (B) hereof,
the General Partner shall have the option, in lieu of funding the Operating
Deficit Loan or making the Deficit Capital Contributions, of borrowing, or
causing the Partnership to borrow the funds necessary to fund Operating Deficits
or such debt service, and to secure any such loans with the Property or any
other assets of the Partnership.
(D) Notwithstanding the foregoing and provided that the
applicable Operating Deficit Loan or Deficit Capital Contribution shall not have
been made or the funds committed, in writing, by a third party, the Limited
Partner shall have the right, but not the obligation, upon ten (10) days'
written notice to the General Partner, from time to time, to lend (collectively,
the "Limited Partner Loan") or to make an additional Capital Contribution
("Additional Capital Contribution") to the Partnership of its proportionate
share of such funds as may be necessary to fund any such Operating Deficits or
such debt service (it being understood that the General Partner shall be under
no obligation to notify the Limited Partner prior to the General Partner making
any
23
29
Operating Deficit Loans or Deficit Capital Contributions or obtaining funds from
a third party in the event of an emergency or due date requirement). The General
Partner may dispute the existence of any Operating Deficits claimed by the
Limited Partner pursuant to Section 14.12 hereof. The Limited Partner Loan shall
bear interest at a rate equal to that charged under the First Mortgage,
compounded annually. The Limited Partner Loan, as well as interest thereon shall
be repayable in accordance with the provisions of Sections 5.04 and 5.05 hereof.
The Additional Capital Contributions shall be repaid, together with an amount in
the nature of interest calculated at a rate equal to that charged under the
First Mortgage, compounded annually in accordance with the provisions of
Sections 5.04 and 5.05 hereof.
(E) Notwithstanding anything contained herein, none of the
Partners shall have any personal liability for the repayment of the Limited
Partner Loan or the Operating Deficit Loan nor shall the General Partner have
any personal liability beyond its Interest for failure to make any Operating
Deficit Loan or Deficit Capital Contribution.
24
30
4.04 Default by General Partner.
(A) In the event the General Partner shall fail to make any
Operating Deficit Loan or any Deficit Capital Contribution to the Partnership or
to cause the Partnership to borrow the required funds for any reason other than
the fact that the Operating Deficits shall have arisen by reason of the Limited
Partner being in default under the Guarantee or the failure of the tenant under
the Hotel/Office Lease to make any payments required thereunder, including,
without limitation, a failure to make any such payments in connection with
bankruptcy proceedings and whether or not the trustee in bankruptcy shall
disaffirm the Hotel/Office Lease, and such default continues for twenty (20)
days after notice from the Limited Partner (or such shorter period of time as is
reasonably required to protect Partnership Assets), in addition to the remedies
provided in Paragraph (B) of this Section 4.04 or otherwise at law, the Limited
Partner shall have the right, at its option, to fund the Operating Deficit Loan
or the Deficit Capital Contributions by either:
(i) causing there to be lent to the Partnership by any person,
firm or corporation, all or any part of the necessary amounts, which loan shall
bear
25
31
interest at a rate equal to two percentage points in excess of the then Prime
Rate, shall be non-recourse and shall be secured by the General Partner's
Interest and interest in the Operating Deficit Loan and the Deficit Capital
Contributions (the principal and interest of such loan to be repaid out of the
first distributions or payments to be paid to the General Partner pursuant to
this Agreement); or
(ii) to lend to the Partnership all or any part of such funds,
which loan shall bear interest at a rate equal to two percentage points in
excess of the then Prime Rate, shall be non-recourse and shall be secured by the
General Partner's Interest and interest in the Operating Deficit Loan and the
Deficit Capital Contributions (the principal and interest of such loan to be
repaid out of the first distributions or payments to be paid to the General
Partner pursuant to this Agreement).
(B) If the Limited Partner shall elect to lend to the
Partnership all or any part of such funds, the Limited Partner shall be deemed
to have been released from all obligations under the Guarantee and the same
shall be deemed to have terminated as of the date of any such loan.
26
32
(C) The General Partner hereby pledges and grants to the
Partnership a security interest in its Interest, as security for its obligations
to fund the Operating Deficit Loan or to contribute Deficit Capital
Contributions or to cause the Partnership to borrow the required funds, to make
any Capital Contributions required to fund all construction costs of the
Improvement and, through the day prior to the twenty-fifth (25th) anniversary of
the Commencement Date, as security for the obligations of the tenant under the
Xxxxx Lease, and agrees that the Partnership shall have, in addition to the
rights provided for herein, all of the rights and remedies of a secured party
under the New Jersey Uniform Commercial Code other than the right to obtain a
deficiency judgment in connection therewith, in respect to its Interest in the
event of the failure of the General Partner to comply with its obligations as
provided in this Section 4.04 or the obligations of the tenant under the Xxxxx
Lease.
(D) If, pursuant to Section 4.03(A) hereof, the General Partner
is obligated to make an Operating Deficit Loan or a Deficit Capital Contribution
and fails to do so and, if the General Partner shall fail to execute any and all
documents, including without limita-
27
33
tion, loan agreements, promissory notes, and transfer and sale documents which
the Limited Partner reasonably deems necessary to implement the rights and
remedies set forth in this Section 4.04 for ten (10) days after request therefor
by the Limited Partner, the General Partner hereby appoints the Limited Partner
its attorney-in-fact for the purpose of executing any and all such documents.
Such power of attorney granted herein shall be deemed to be coupled with an
interest, and such power of attorney shall, to the extent permitted by law,
survive the death, disability, incompetency, withdrawal, removal, or Bankruptcy
of the General Partner.
4.05 Interest. Except as specifically herein provided, interest earned
on Partnership funds shall inure to the benefit of the Partnership. The Partners
shall not receive interest on their Capital Contributions.
4.06 Capital Account. The Partnership shall maintain a Capital Account
for each Partner as described in Section 2.06 hereof.
4.07 Withdrawal of Capital Contributions. Except as otherwise provided
in this Agreement or by law, (i) no Partner shall have the right to withdraw or
reduce its Capital Contributions, or to demand and receive prop-
28
34
erty other than cash from the Partnership in return for its Capital
Contributions and (ii) any return of Capital Contributions to the Limited
Partner shall be solely from Partnership assets, and the General Partner shall
not be personally liable for any such return.
4.08 Restoration of Negative Capital Accounts. At no time during the
term of the Partnership or upon the dissolution and liquidation of the
Partnership shall a Partner with a negative balance in his Capital Account have
any obligation to the Partnership or to any other Partner to restore such
negative balance, except in respect of any negative balance resulting from
withdrawal of capital or a distribution in contravention of this Agreement.
ARTICLE V
PROFITS, LOSSES AND DISTRIBUTIONS
5.01 Determination of Profits and Losses.
All profits and losses of the Partnership shall be determined by the
Partnership Accountants in accordance with the accrual method of accounting for
Federal income tax purposes, subject to appropriate adjustments resulting from
any election pursuant to Section 5.06 hereof.
29
35
5.02 Allocation of Profits and Losses from
Operations.
(A) Losses. (i) Subject to Section 5.02(C), losses of the
Partnership incurred prior to the Fixed Rent Commencement Date, other than
Losses arising from Capital Transactions, shall be allocated as follows:
a) Deductions for non-cash losses shall be
allocated 79.1% to the General Partner and 20.9% to the Limited Partner; and
b) Losses (calculated by excluding deductions for
non-cash losses) shall be allocated 100% to the General Partner.
(ii) Subject to Section 5.02(C), Losses of the Partnership
incurred on or after the Fixed Rent Commencement Date, other than Losses arising
from Capital Transactions, shall be allocated 79.1% to the General Partner and
20.9% to the Limited Partner.
(B) Profits. Subject to Section 5.02(C), profits, other than
profits arising from Capital Transactions, shall be allocated, after making all
distributions pursuant to Sections 5.04 and 5.05 for the taxable year, as
follows:
30
36
(i) first, to the General Partner and the Limited Partner,
respectively, an amount equal to the excess of (a) the aggregate of all amounts
distributed to such Partner pursuant to Section 5.04(A) or 5.05(A)(2) for all
taxable years (other than interest on Operating Deficit Loans or Limited Partner
Loans) over (b) the sum of (1) all amounts previously allocated to such Partner
pursuant to this Section 5.02(B)(i), Section 5.03(A)(ii), or Section 5.02(D) and
(2) the difference between the total amount of such loans and the amount
allocated to such Partner pursuant to Section 5.02(C)(i) with respect to such
loans;
(ii) second, to the General Partner and the Limited Partner,
respectively, an amount equal to the excess of (a) the aggregate of all amounts
distributed to such Partner pursuant to Section 5.04(B) or 5.05(A)(3) for all
taxable years (other than amounts in the nature of interest on Deficit Capital
Contributions or Additional Capital Contributions) over (b) the sum of (1) all
amounts previously allocated to such Partner pursuant to this Section
5.02(B)(ii), Section 5.03(A)(ii), or Section 5.02(D) and (2), the difference
between the total amount of such capital contributions and the
31
37
amount allocated to such Partner pursuant to Section 5.02(C)(i) with respect to
such capital contributions;
(iii) thereafter, 79.1% to the General Partner and 20.9% to
the Limited Partner.
(C) Special Allocations. Notwithstanding Sections 5.02(A) and
5.02(B), to the extent that any Operating Deficit Loan, Limited Partner Loan,
Deficit Capital Contribution or Additional Capital Contribution is made by
reason of a partnership cash expenditure with respect to which the Partnership
is entitled to a deduction, such deduction shall be allocated to the Partner
making such Operating Deficit Loan, Limited Partner Loan, Deficit Capital
Contribution or Additional Capital Contribution.
(D) Anything to the contrary in this Article V notwithstanding,
losses shall not be allocated to a Partner who has a negative Capital Account
balance when any other Partner has a positive Capital Account balance, but shall
first be allocated to Partners who have positive Capital Account balances. In
addition, notwithstanding any other provision of Section 5.02 or 5.03, if at any
time the sum of the deficit capital account balances of the partners should
exceed the partnership's minimum gain (as defined in Prop. Reg. Section 1.704-
32
38
1(b)(4)(iv), as proposed March 9, 1983), an amount of income or gains equal to
such excess shall first be allocated to such Partners, in proportion to their
respective shares of such excess.
5.03 Profits and Losses from Capital Transactions.
(A) All net gains of the Partnership, as determined for Federal
income tax purposes for the Fiscal Year, in connection with a Capital
Transaction, shall be allocated among the Partners (after giving effect to all
charges and credits for the then current Fiscal Year pursuant to Section 5.02
above, all distributions for such Fiscal Year pursuant to Section 5.04, and all
charges, credits and distributions attributable to transactions which occurred
earlier than the transaction pursuant to which the gain is being allocated,
pursuant to Sections 5.01, 5.02, 5.03, 5.04 or 5.05, but not including any
distributions pursuant to Section 5.05 with respect to the transaction pursuant
to which the gain is then being allocated or any charges, credits, and
distributions attributable to transactions which occurred subsequent to the
transaction pursuant to which the gain is being allocated) as follows and in the
following order of priority:
33
39
(i) first, if the Capital Account of any Partner or Partners has
a negative balance, such gain shall be allocated to any such Partner or Partners
whose Capital Account has a negative balance in proportion to such negative
balances, until the balance of each such Partner's Capital Account is equal to
zero;
(ii) second, gain shall be allocated to the General Partner and
the Limited Partner, respectively, until the positive balance in each Partner's
Capital Account is equal to the sum of the amounts distributed during that
Fiscal Year, or available for distribution as of the end of that Fiscal Year to
such Partner pursuant to Section 5.05(A)(2) and 5.05(A)(3) (other than interest
on Operating Deficit Loans or Limited Partner Loans, and other than amounts in
the nature of interest on Deficit Capital Contributions and Additional Capital
Contributions) by reason of the Capital Transaction pursuant to which gain is
being allocated;
(iii) third, gain shall be allocated to the General Partner and
the Limited Partner, respectively, until the ratio of (a) the amount, if any, by
which the General Partner's Capital Account balance exceeds the amount
distributed during that Fiscal Year, or available for distribution as of the end
of that Fis-
34
40
cal Year to it pursuant to Sections 5.05(A)(2) and 5.05(A)(3) (other than
interest on Operating Deficit Loans, and other than amounts in the nature of
interest on Deficit Capital Contributions), to (b) the amount, if any, by which
the Limited Partner's Capital Account balance exceeds the amount distributed
during that Fiscal Year, or available for distribution as of the end of that
Fiscal Year to it pursuant to Sections 5.05(A)(2) and 5.05(A)(3) (other than
interest on Limited Partner Loans, and other than amounts in the nature of
interest on Additional Capital Contributions), is 2 to 1; and
(iv) thereafter, the balance shall be allocated 79.1% to the
General Partner and 20.9% to the Limited Partner.
(B) Any loss incurred by the Partnership, as determined for
Federal income tax purposes, in connection with a Capital Transaction, shall be
allocated among the Partners (after giving effect to all charges and credits for
the then current Fiscal Year pursuant to Section 5.02 above, all distributions
for such Fiscal Year pursuant to Sections 5.04 or 5.05, and all prior charges,
credits and distributions, if any, during such Fiscal Year pursuant to Sections
5.01, 5.02, 5.03 or 5.04, but not including any charges and credits with
35
41
respect to the transaction pursuant to which the loss is then being allocated or
any charges, credits, and distributions which occurred subsequent to the
transaction pursuant to which the loss is being allocated, but including the
distributions resulting from such transaction) as follows and in the following
order of priority:
(i) first, if the Capital Account of any Partner or Partners has
a positive balance, such loss shall be allocated to the Capital Account of any
such Partner or Partners whose Capital Account has a positive balance to make
the ratio of the positive Capital Accounts of the General Partner and the
Limited Partner to the sum of the Capital Accounts of the Partners 79.1% and
20.9% respectively;
(ii) thereafter, the balance of such loss shall be allocated
79.1% to the General Partner and 20.9% to the Limited Partner.
(C) In the event that any gain realized upon a sale of the
Property is characterized as ordinary income as a result of the recapture of
cost recovery or depreciation deductions attributable to the Property, such
ordinary income shall be allocated among the Partners in accordance with the
percentages that the aggregate cost recovery or depreciation deductions were
allo-
36
42
cated. Notwithstanding the foregoing, in no event shall a Partner be allocated
such ordinary income in excess of the gain allocated and to be allocated to that
Partner pursuant to Section 5.03(A) hereof.
5.04 Distribution of Net Operating Revenues. Eighty-five percent
(85%) of Net Operating Revenues, after payment of debt service on the First
Mortgage or any other financing affecting the Property or the Partnership, shall
be distributed quarterly, in accordance with the Budget, within thirty (30) days
after the end of each quarter of each Fiscal Year by the General Partner, in the
following manner and order of priority:
(A) first, to pay any accrued and unpaid interest on the principal, and
the outstanding principal balance, of the Operating Deficit Loan and the Limited
Partner Loan, on a pari passu basis;
(B) second, to pay any accrued and unpaid amount in the nature of
interest on and the outstanding principal balance of any Deficit Capital
Contributions or Additional Capital Contributions, on a pari passu basis; and
(C) third, the balance, if any, shall be distributed 79.1% to the
General Partner and 20.9% to the Limited Partner.
37
43
Such quarterly payments shall be adjusted annually, within ninety (90)
days after the end of each Fiscal Year, and excess amounts, if any, shall be
credited against future required payments; underpayments will be paid at the
time of such adjustment.
5.05 Distribution of Proceeds of Capital Transactions other than in
Liquidation.
(A) Capital Proceeds (other than in liquidation) shall be distributed as
follows and in the following order of priority:
(1) first, to the repayment of the First Mortgage or any other mortgage
or deed of trust or interim financing affecting the Property; if required
thereunder, including principal, interest and any fees or penalties incurred in
connection therewith;
(2) second, to the repayment of the outstanding principal balance of the
Operating Deficit Loan and the Limited Partner Loan, on a pari passu basis,
including any interest accrued thereon; and
(3) third, to the General Partner and the Limited Partner, respectively,
an amount equal to the excess of any Deficit Capital Contributions or Additional
Capital Contributions, including any amount in the nature of interest accrued
thereon, as the case may be, over the
38
44
amount previously distributed pursuant to this Section 5.05(A)(3) or Section
5.04(B), in proportion to such excesses; and
(4) thereafter, the balance, if any, shall be paid 79.1% to the General
Partner and 20.9% to the Limited Partner.
(B) Notwithstanding anything contained herein, any proceeds secured by
the First Mortgage and actually received by the Partnership in excess of those
required in connection with payments under any construction agreement for the
construction of the Improvements, shall be paid to the General Partner as
repayment for certain amounts previously advanced or contributed to the
Partnership in connection with the acquisition and construction of the
Improvements.
5.06 Partnership Adjustments. The Partnership shall elect to adjust the
basis of the Partnership property pursuant to the election provided for in
Section 754 of the Code. Any increase or decrease in the amount of any item of
income, gain, loss, deduction or credit attributable to an adjustment to the
basis of Partnership assets made pursuant to such election, and pursuant to the
corresponding provisions of applicable state and local income tax laws, shall be
charged or credited, as
39
45
the case may be, to those Partners entitled thereto under such laws.
5.07 Allocations to Transferred Interests. Profits, gains, losses,
deductions and credits allocated to an Interest assigned or reissued during a
Fiscal Year shall be allocated to each Person who was the holder of such
Interest during such Fiscal Year, in proportion to the number of days that each
such holder was recognized as the owner of such Interest during such Fiscal Year
or by an interim closing of the books or in any other proportion permitted by
the Code and selected by the General Partner in accordance with this Agreement,
without regard to the results of Partnership operations or the date, amount or
recipient of any distributions which may have been made with respect to such
Interest. The effective date of any assignment shall be (i) in the case of a
voluntary assignment, the actual date the assignment is recorded on the books of
the Partnership, or (ii) in the case of involuntary assignment, the date of the
operative event.
40
46
ARTICLE VI
RIGHTS AND OBLIGATIONS OF
THE GENERAL PARTNERS
6.01 Management. Subject to and limited by the provisions of this
Agreement, the General Partner shall have full, exclusive and complete
authority, discretion, obligation and responsibility to make all decisions
affecting the business of the Partnership. The General Partner shall manage and
control the affairs of the Partnership to the best of its ability and shall use
its best efforts to carry out the business of the Partnership. The General
Partner shall devote to the Partnership such time as, in its discretion, may be
necessary for the proper performance of its duties hereunder.
The General Partner shall render to the Partnership such services as are
reasonably necessary for the management and conduct of the business of the
Partnership and shall be entitled to be reimbursed for out-of-pocket expenses
reasonably and necessarily incurred in connection with the performance of its
duties hereunder, including, without limitation, its acting as "Tax Matters"
Partner.
6.02 Authority. The General Partner shall have authority to bind the
Partnership, by execution of documents or otherwise, to any obligation not
inconsis-
41
47
tent with the provisions of this Agreement. Except as otherwise provided in
Section 6.05, the General Partner may contract or otherwise deal with any Person
for the transaction of the business of the Partnership, which Person may, under
supervision of the General Partner, perform such acts or services for the
Partnership as the General Partners may approve.
6.03 Limitations on General Partner.
A. The General Partner shall not have any authority to:
(i) perform any act in violation of any applicable law
or regulation thereunder, including applicable Federal and state securities
laws;
(ii) perform any act in violation of the Act or this
Agreement;
(iii) consent to (a) any initial permanent mortgage
financing affecting the Property other than on the terms and in the amount of
the Commitment, (b) any refinancing of the First Mortgage or other initial
permanent mortgage financing, (c) any attempted sale or actual sale of the
Property except as specifically set forth herein or exercise of the
Partnership's rights under the Ground Lease to cancel the same except in
connection with a termination of the Hotel/Office Lease by
42
48
PaineWebber Incorporated pursuant to Section 38.11 of the Hotel/Office Lease,
(d) any modification of the First Mortgage or such other initial permanent
mortgage financing, or (e) any sale or transfer of, or financing secured by, the
fee estate of the General Partner as landlord under the Ground Lease, if such
consent shall be required thereunder, without the prior Consent of the Limited
Partner, which Consent shall not be unreasonably withheld;
(iv) enter into any franchise agreement for the hotel
operation to be conducted at the Property;
(v) modify or cancel the Management Agreement, dated of
even date herewith, between the Partnership and Xxxxx Hotel Management Corp., or
to enter into a new management agreement;
(vi) cause the Partnership to voluntarily file for
Bankruptcy unless the need for the same shall arise by reason of the Limited
Partner being in default under the Guarantee or the tenant under the
Hotel/Office Lease to make any payments required thereunder, including, without
limitation, a failure to make any such payments in connection with bankruptcy
proceedings
43
49
and whether or not the trustee in bankruptcy shall disaffirm the Hotel /Office
Lease;
(vii) perform any other act expressly requiring the
Consent of the Limited Partner under this Agreement without first obtaining such
Consent.
B. Notwithstanding the provisions of clause A(iii)(a) of this
Section 6.03, however, subsequent to the fifteenth (15th) anniversary of the
Commencement Date, the General Partner shall have the right to sell the Property
(but not any part thereof) (together with fee interest therein), without the
prior consent of the Limited Partner, provided that the proceeds of such sale,
when distributed to the Partners pursuant to Section 5.05 hereof, shall be
sufficient so that the Limited Partner shall receive an amount equal to the sum
of (x) the Limited Partner's full federal, state and local tax liability in
connection with such sale, and (y) an amount equal to the sum of the Limited
Partner's projected cash distribution of Net Operating Revenues and tax benefits
from the date of such sale to the twenty-fifth anniversary of the date hereof;
discounted to the then present value at the rate of 9% per annum. If there shall
be any dispute as to the value of the Limited Partner's project-
44
50
ed tax benefits or projected Net Operating Revenues, either party may refer the
decision of the issues raised to one of the so-called "big eight" public
accounting firms, mutually satisfactory to the Partners, or if the Partners
shall be unable to agree, then the firm to which the dispute shall be referred
shall be chosen as follows: the Partners shall each be permitted to exclude one
of such firms from the pool of acceptable firms; the firm to which such decision
shall be referred shall then be chosen by lot from the pool of remaining firms,
and if the firm chosen by lot shall refuse to serve, a substitute firm shall be
chosen by lot. The decision of such accountants shall be conclusively binding
upon the Partners. The fees and expenses involved in such a decision shall be
borne by the unsuccessful Partner (and if both Partners are partially
unsuccessful, the accountants shall apportion the fees and expenses between the
parties based on the degree of success of each Partner).
C. In addition, notwithstanding the provisions of clause A(iii)(b)
of this Section 6.03, if any such proposed refinancing shall be non-recourse,
unguaranteed (or if, in spite of the General Partner's best efforts, it is not
possible to obtain non-recourse and unguaranteed financing, recourse or
guaranteed financing) and on
45
51
terms and at an interest rate which are commercially reasonable for the type of
property and the location thereof, if the Limited Partner shall fail to approve
the same, then the Limited Partner shall be obligated to lend or to cause there
to be lent to the Partnership by any person, firm or corporation, including the
Limited Partner, any amount not less than the proposed refinancing on the same
or better terms. If there shall be a dispute as to whether the terms of the
financing proposed by the Limited Partners shall in fact be the same as or
better than those of the financing proposed by the Limited Partner, then,
pending resolution of such dispute, the General Partner shall have the
authority, without the Limited Partner's Consent to obtain any necessary interim
financing. The Limited Partner shall notify the General Partner of whether it
approves or disapproves of any such proposed refinancing within ten (10)
business days after notice thereof from the General Partner. Failure to respond
within such period shall be deemed to constitute approval by the Limited
Partner. In addition, if the Limited Partner shall fail to approve any proposed
refinancing required in connection with the repayment of any outstanding balance
of any loan on maturity or accelerated due date, then, provided that the General
Partner
46
52
shall have notified the Limited Partner of the terms of the proposed refinancing
not less than one hundred eighty (180) days prior to the date on which such
prior loan shall be due or such shorter period as may be reasonable if such due
date shall be accelerated by the Lender, the Limited Partner shall be obligated
to lend, or cause there to be lent, an amount sufficient to repay such
outstanding balance not less than one hundred twenty (120) days prior to the
date on which the same shall be due.
6.04 Additional Limitations. The General Partner shall not be
entitled to:
(A) cause the Partnership to make loans to, or accept loans from
(other than on commercially reasonable terms), the General Partner or its
Affiliates; or
(B) accept rebates, subject to Section 6.05, or engage in any
reciprocal business arrangements which would violate this Section.
6.05 Business with Affiliates. Except as provided in Section 6.04
hereof, the General Partner may cause the Partnership to transact business with
any of its Affiliates for goods or services reasonably required in the conduct
of the Partnership's day-to-day business,
47
53
provided that any such transaction shall be effected only if:
(A) The Limited Partner shall have Consented to such
transaction; or
(B) The following conditions shall have been complied with:
(i) the transaction is on terms competitive with those
that may be obtained from unaffiliated Persons;
(ii) any and all such transactions are disclosed to all
Partners; and
(iii) any goods or services provided by the General
Partner or its Affiliates to the Partnership shall be pursuant to a written
contract which sets forth the goods and services to be provided and the
compensation to be paid, and shall be terminable without cause or penalty upon
sixty (60) days' Notice.
6.06 Liability for Acts and Omissions.
(A) The General Partner shall not be liable, responsible or
accountable in damages or otherwise to any of the Partners for any act or
omission performed or omitted in good faith on behalf of the Partnership and in
a manner reasonably believed to be within the scope of the authority granted by
this Agreement and in
48
54
the best interests of the Partnership, but shall be so liable, responsible or
accountable for fraud, gross negligence, willful misconduct or any material
breach of its fiduciary duty with respect to such acts or omissions.
(B) The General Partner shall be indemnified and held harmless
by the Partnership (but not any Partner) from and against any and all claims,
demands, liabilities, costs, damages and causes of action of any nature
whatsoever arising out of or incidental to the General Partner's management of
the Partnership affairs, except where the General Partner has committed fraud,
gross negligence or willful misconduct.
The indemnification authorized by this Section 6.06 shall
include, without limitation, payment of:
(i) reasonable attorneys' fees or other expenses incurred in
connection with settlement or in any legal proceeding; and
(ii) the removal of any liens affecting any property of the
indemnitee.
The indemnification rights contained in this Section 6.06 shall
be cumulative of, and in addition to, any and all rights, remedies, and
recourses to which the General Partner shall be entitled, whether pursuant to
49
55
the provisions of this Agreement, at law, or in equity. Indemnifications
hereunder shall be made from Partnership Assets as an expense of the Partnership
and no general partner or limited partner(s) shall be personally liable to any
indemnitee.
6.07 Other Activities. Except as provided in Section 6.05 hereof, the
Partners and their Affiliates may engage in or possess an interest in other
business ventures of every nature and description for their own account,
independently or with others, including, without limitation, real estate
business ventures, whether or not such other enterprises shall be in competition
with any activities of the Partnership; and neither the Partnership nor the
other Partners shall have any right by virtue of this Agreement in and to such
independent ventures or to the income or profits derived therefrom.
6.08 Classification as a Partnership. In conducting the operation of the
Partnership, the General Partner shall at no time engage in any conduct that
might cause the Partnership not to be classified for Federal income tax purposes
as a partnership but as an association taxable as a corporation.
50
56
6.09 Net Worth of General Partner. The General Partner hereby covenants
and agrees that it shall at all times have sufficient assets and net worth,
exclusive of its Interest, to permit the Partnership to be taxed as a
"partnership" and not as an association taxable as a corporation for Federal
income tax purposes under the provisions of the Code and the regulations
promulgated thereunder and in compliance with any requirements imposed by the
IRS.
6.10 Management. The General Partner will exercise good faith in all
activities relating to the conduct of the business of the Partnership, and will
take no action with respect to the business or assets of the Partnership which
is not reasonably related to the achievement of the purposes of the Partnership.
ARTICLE VII
WITHDRAWAL OF GENERAL PARTNER
7.01 Assignment or Withdrawal by a General Partner. No general partner
of the Partnership may sell, transfer, assign or otherwise dispose of, or
pledge, hypothecate or otherwise encumber (collectively, "Transfer") its
Interest, in whole or in part, or withdraw from the Partnership, except as
permitted by this Article, Section 4.04(C) and Section 14.08 hereof.
51
57
7.02 Involuntary Withdrawal of a General Partner. In the event of the
involuntary withdrawal of a general partner due to death, disability,
Bankruptcy, dissolution or legal incapacity, such general partner shall
immediately cease to be a Partner and the Partnership shall purchase the
Interest of such Partner for an amount payable in cash equal to its fair market
value. For purposes of determining the fair market value under this Section, the
provisions of Section 14.08 hereof shall apply.
7.03 Obligations of a Prior General Partner. If any general partner
withdraws or is removed from the Partnership under Sections 7.02 or 7.08 hereof
it shall remain liable for all obligations and liabilities incurred by it as a
general partner before the effective date of such event and shall be liable for
all damages and costs to the Partnership, the General Partner (and any new
general partner) and the Limited Partner (and any Substitute Limited Partner) as
a result of such sale, transfer, assignment, withdrawal or removal.
7.04 Remaining General Partner. Upon the death, disability, Bankruptcy,
dissolution, legal incapacity or removal of a general partner, the remaining
general partner, if any, (i) shall immediately give No-
52
58
xxxx to the Limited Partner of such event, (ii) shall serve as the General
Partner of the Partnership, and (iii) shall continue the business of the
Partnership. Upon the death, disability, Bankruptcy, dissolution, legal
incapacity or removal of the sole remaining general partner, or the Transfer by
the sole remaining general partner of its Interest, a Person selected by the
Limited Partner shall (i) serve as the General Partner of the Partnership, and
(ii) continue the business of the partnership if the Partnership is
reconstituted under Article XII.
7.05 Removal of General Partner.
(A) The General Partner may be removed by the Limited Partner
for fraud, willful misconduct, gross negligence or material breach of fiduciary
duty.
(B) Upon receipt of Notice from the Limited Partner seeking the
removal of the General Partner pursuant to Section 7.05(A), and specifying the
cause for such removal, the General Partner shall have the right within 20
calendar days of the date of receipt of such Notice to cure the alleged default
or, if such breach cannot reasonably be cured in such period, to commence
efforts to cure and diligently prosecute such cure. Should such cure not be so
made or efforts com-
53
59
menced, then, unless the General Partner disputes such removal and within the
20-day period provides Notice to the Limited Partner of its intention to
commence arbitration pursuant to Section 14.12 of this Agreement, the General
Partner shall immediately cease to be a general partner and shall no longer have
the powers and authorities conferred on it as general partner as to the
operation of the Partnership business and the General Partner's Interest shall
be converted into that of a special limited partner ("Special Limited Partner")
and shall be entitled to all profits, losses, gains, distributions and other
credits and charges to which the General Partner was entitled under this
Agreement, but shall not be entitled to vote with the Limited Partner or the
Substitute Limited Partner(s) upon any matter which requires the consent or
approval of the Limited Partner or the Substitute Limited Partner(s) under this
Agreement. Promptly after such conversion, the Limited Partner shall file, or
cause there to be filed, an amendment to the Certificate of Limited Partnership,
indicating such conversion. The General Partner shall remain liable for all
liabilities and obligations of the Partnership incurred or arising out of
Partnership operations during the time it was the General Partner, but shall be
free from liability in
54
60
respect of obligations and liabilities incurred or arising out of operations
thereafter, unless the Partnership is dissolved as a consequence of the act of
the General Partner by law or by the provisions of this Agreement.
7.06 Successor General Partner. A Person shall be admitted as a general
partner only if the following terms and conditions are satisfied:
(A) the admission of such Person shall have been Consented to by
any other general partner(s) and by the Limited Partner;
(B) the Person shall have accepted and agreed to be bound by all
the terms and provisions of this Agreement by executing a counterpart thereof
and such other documents or instruments that may be required or appropriate in
order to effect the admission of such Person as a general partner;
(C) a certificate evidencing the admission of such Person as a
general partner shall have been filed for recordation;
(D) if the successor general partner is a corporation, it shall
have provided counsel for the Partnership with a certified copy of a resolution
of its Board of Directors authorizing it to become a general partner; and
55
61
(E) except in connection with a transfer pursuant to Section
14.08 hereof, counsel for the Partnership shall have rendered an opinion that
none of the actions taken in connection with such transfer or admission will
cause a termination of the Partnership pursuant to Section 708 of the Code,
which opinion can be waived by the remaining general partner(s) and the Limited
Partner.
7.07 Additional Limitation on Transferability. Anything to the contrary
in this Agreement notwithstanding, except in connection with a transfer pursuant
to Section 14.08 hereof, no general partner may Transfer its Interest, in whole
or in part, if such Transfer will cause a termination of the Partnership
pursuant to Section 708 of the Code, and any Transfer in violation of the
provisions hereof shall be void.
7.08 Permitted Assignments by the General Partner. Notwithstanding
anything contained herein to the contrary, the General Partner shall have the
right, upon compliance with the provisions of Section 7.06(B)-(E) but subject
to the provisions of Section 7.07, to assign its entire Interest to an
Affiliate. In addition, the General Partner shall have the right, from time to
time, upon compliance with the provisions of Section
56
62
7.06(B) and (E) and subject to the provisions of Sections 4.04(C) and 7.07, to
assign a portion or portions of its Interest, not to exceed 78.9% in the
aggregate, to Affiliates, to Xxxxxxx Xxxxx, members of his immediate family or
trusts for the benefit of Xxxxxxx Xxxxx or members of his immediate family, and
to charitable foundations established by Xxxxxxx Xxxxx, provided, however, that
no such assignee shall be deemed to be a general partner but rather a Special
Limited Partner, and shall be entitled to all profits, losses, gains,
distributions and other credits and charges to which the General Partner was
entitled under this Agreement and which are allocable to the portion of the
Interest so transferred, but shall not be entitled to vote with the Limited
Partner or the Substitute Limited Partner(s) upon any matter which requires the
consent or approval of the Limited Partner or the Substitute Limited Partner(s)
under this Agreement and provided further that each such assignee shall consent
in writing to its Interest being pledged to secure the obligations of the
General Partner in accordance with Section 4.04(C) hereof. In addition, upon
compliance with the provisions of Section 7.06(B) and (E) and subject to the
provisions of Sections 4.04(C) and 7.07, in the event of the death of Xxxxxxx
Xxxxx, the General Partner may
57
63
transfer its entire Interest to the Estate of Xxxxxxx Xxxxx (the "Estate") in
connection with the dissolution of the General Partner and the transfer of its
assets to the Estate, provided that the Estate shall have a net worth not less
than the General Partner's immediately prior to such transfer, the Estate shall
acknowledge all claims against, and obligations of, the General Partner,
including, without limitation, the Guarantee, of even date hereof, by the
General Partner for the benefit of the Limited Partner, and the Estate shall
insure that there shall be a continuancy of management of the Parternship and
the Property.
Nothing contained herein shall be deemed to limit any rights the General
Partner may have to pledge its Interest, subject, however, to its prior pledge
pursuant to Section 4.04(C) hereof.
ARTICLE VIII
RIGHTS AND OBLIGATIONS OF THE LIMITED PARTNER
8.01 Management of the Partnership. The limited Partner shall not take
part in the management or control of the business of the Partnership or transact
any business in the name of the Partnership. The Limited Partner shall not have
the power or authority to bind the Partnership or to sign any agreement or
document in the
58
64
name of the Partnership. The Limited Partner shall not have any power or
authority with respect to the Partnership, except insofar as the Consent of the
Limited Partner shall be expressly required by this Agreement. The exercise of
any of the rights and powers of the Limited Partner pursuant to the terms of
this Agreement shall not be deemed taking part in the day-to-day affairs of the
Partnership or the exercise of control over Partnership affairs.
8.02 Limitation on Liability. The liability of the Limited Partner shall
be limited hereunder to its Interest as and when it is payable under the
provisions of this Agreement. The Limited Partner shall not have any other
liability to contribute money to the Partnership, nor shall the Limited Partner
be personally liable for any obligations of the Partnership. Nothing contained
in this paragraph is intended to alter the provisions of any applicable state
statutes regarding limitations on the liability of limited partners.
8.03 Power of Attorney.
(A) The Limited Partner hereby makes, constitutes and appoints
the General Partner, and/or its authorized officers, agents, successors or
assigns, its true and lawful attorney-in-fact with full power and
59
65
authority in its name, place and stead to make, execute, sign, acknowledge,
deliver, file and record at the appropriate public offices such documents as may
be necessary or appropriate to carry out the provisions of this Agreement,
including the following with respect to the Partnership:
(i) the certificate of limited partnership of the Partnership,
and all certificates, other agreements and amendments thereto, which the General
Partner reasonably deems necessary to continue the Partnership as a Limited
Partnership in each jurisdiction in which the Partnership conducts business;
(ii) all instruments which the General Partner reasonably deems
necessary to effect any sales or transfers by, or the dissolution and
liquidation of, the Partnership or to reflect a change or modification of the
Partnership, all made in accordance with the terms of this Agreement; or
(iii) all such other instruments as may be reasonably deemed
necessary or desirable by the General Partner to carry out fully the provisions
of this Agreement in accordance with its terms, or to manage and operate the
Property in the ordinary course of business (provided however, that nothing
herein contained shall be
60
66
deemed to supersede any limitations specifically imposed on the General Partner
by any provision of this Agreement, including, without limitation, those
limitations which are contained in Sections 6.03 and 6.04 hereof).
(B) The foregoing power of attorney is hereby declared to be
irrevocable and coupled with an interest, and it shall survive the Bankruptcy,
legal disability, dissolution or cessation to exist as a legal entity of the
Limited Partner to the fullest extent permitted by law and extend to its heirs,
executors, personal representatives, successors and assigns, and the transfer or
assignment of all or any part of the Interest of such Partner; provided,
however, that if the Limited Partner transfers all or any part of its Interest,
the foregoing power of attorney of the transferor Limited Partner shall survive
such transfer only until such time as the transferee shall have been admitted to
the Partnership as a Substitute Limited Partner and all required documents and
instruments shall have been duly executed, filed and recorded to effect such
substitution.
(C) The power of attorney granted to the General Partner shall
not apply to Consent of the Limited Partner provided for in this Agreement
unless any specific time period set forth herein in connection with
61
67
the granting or denying of such consent shall have expired.
(D) The Limited Partner further agrees to execute any and all
documents or instruments referred to in this Section 8.03 if the provisions of
the Act render ineffective the power of attorney granted hereunder.
8.04 Admission of Additional Partners. Except as provided in this
Agreement, no new partners may be admitted to the Partnership without the
Consent of all of the Partners. The admission of additional partners is further
subject to the condition that each such additional partner execute this
Agreement or an appropriate supplement hereto pursuant to which he agrees to be
bound by the terms and provisions hereof. The admission of an additional partner
pursuant hereto shall not be cause for dissolution of the Partnership.
ARTICLE IX
TRANSFER OF LIMITED PARTNERSHIP INTERESTS
9.01 No Unpermitted Transfers. The Limited Partner may not sell, assign,
transfer or otherwise dispose of, or pledge, hypothecate or otherwise encumber
his Interest, or any part thereof, except as permitted in this Article IX and
Sections 14.08 and 14.13 hereof, and
62
68
any transaction in violation of this Article IX and Section 14.08 hereof shall
be null and void as against the Partnership, except as otherwise provided by
law.277
9.02 Assignment by Limited Partner.
(A) The Limited Partner may assign its Interest, in whole or in
part, by an executed and acknowledged written instrument only if all of the
following conditions are satisfied:
(i) the assignor and assignee file a notice of transfer
with the General Partner which contains the information reasonably required by
the General Partner; and
(ii) any reasonable costs of transfer shall have been
paid to the Partnership; and
(iii) the General Partner shall have Consented to the
assignment, which Consent may be granted or withheld in its sole discretion.
(B) Any such assignment shall be recognized by the Partnership
as effective only on the first day of the calendar month following receipt by
the Partnership of such notice of the proposed assignment and satisfaction of
the aforementioned conditions.
63
69
(C) If an assignee of a Limited Partner does not become a
Substitute Limited Partner pursuant to Section 9.03, the Partnership shall not
recognize the assignment, and the assignee shall not have any rights to require
any information on account of the Partnership's business, inspect the
Partnership's books or vote on Partnership matters.
(D) Notwithstanding anything contained herein to the contrary,
upon compliance with the provisions of clauses (i) and (ii) of Paragraph (A) of
this Section, the Limited Partner, or any limited partner, or Special Limited
Partner, shall have the right to assign its Interest, in whole or in part, to an
Affiliate.
9.03 Substitute Limited Partner.
(A) An assignee of the whole or any portion of the Limited
Partner's Interest in accordance with Section 9.02 shall have the right to
become a Substitute Limited Partner in place of its assignor only if all of the
following conditions are satisfied:
(i) the fully executed and acknowledged written
instrument of assignment which has been filed with the Partnership sets forth a
statement of the intention of the assignor that the assignee become a Substitute
Limited Partner in his place;
64
70
(ii) the assignee executes, adopts and acknowledges this
Agreement, and a certificate evidencing the admission of such Person as a
Substitute Limited Partner shall have been filed for recording;
(iii) any reasonable costs of transfer shall have been
paid to the Partnership;
(iv) the assignee meets the investment requirements
which may be established by the General Partner for investment in the
Partnership; and
(v) the General Partner shall have Consented to the
substitution, which Consent may be granted or withheld in its sole discretion.
(B) The General Partner may elect to treat an assignee who has
not become a Substitute Limited Partner as a Substitute Limited Partner in the
place of its assignor.
9.04 Involuntary Withdrawal by Limited Partner.
(A) Upon the Bankruptcy, dissolution or other cessation to exist
as a legal entity of the Limited Partner, at the election of the General
Partner, the Limited Partner shall immediately cease to be a Partner and the
Partnership shall purchase the Interest of the Limited Partner for an amount
payable in cash equal to its fair market value. For purposes of determining the
65
71
fair market value under this Section, the provisions of Section 14.08 hereof
shall apply.
(B) The Bankruptcy, dissolution or cessation to exist as a legal
entity of the Limited Partner shall not dissolve or terminate the Partnership.
9.05 Additional Limitation on Transferability. Anything to the contrary
in this Agreement notwithstanding, the Limited Partner may not Transfer its
interest, in whole or in part, if such Transfer will cause a termination of the
Partnership pursuant to Section 708 of the Code, and any Transfer in violation
of the provisions hereof shall be void.
ARTICLE X
DISSOLUTION AND LIQUIDATION
10.01 Dissolution. Unless sooner terminated in accordance with its
terms, the Partnership shall be dissolved upon the occurrence of any one of the
following:
(A) an election to dissolve the Partnership is made by the
General Partner with the Consent of the Limited Partner;
(B) the sale, exchange or other disposition of all, or
substantially all, of Partnership Assets;
66
72
(C) subject to the provisions of Article VII, the death,
disability, Bankruptcy, dissolution, legal incapacity, removal or withdrawal of
the sole remaining general partner or the sale, transfer or assignment, pursuant
to Section 7.01 or 7.08 hereof, by the sole remaining general partner of its
Interest;
(D) the occurrence of the date set forth in Section 1.05;
(E) the tenant under the Hotel/Office Lease shall elect pursuant
to the provisions of Section 38.11 of the Hotel/Office Lease to terminate the
Hotel/ Office Lease; or
(F) any other event causing dissolution of the Partnership under
the Act.
10.02 Liquidation of Partnership Assets. In the event of a dissolution
of the Partnership and the failure of the Partnership to be reconstituted under
Article XI, the Partnership shall be terminated. Upon such termination, a full
accounting of the assets and liabilities shall be taken, the assets shall be
liquidated, and the Capital Proceeds thereof shall be applied as follows:
67
73
(a) All liabilities and obligations of the Partnership,
other than liabilities and obligations to the Partners as
Partners under this Agreement, shall be paid or provided for
(whether by such reserve as the Liquidator shall deem
appropriate or otherwise);
(b) All liabilities and obligations of the Partnership
to the Partners shall be paid or provided for (whether by such
reserve as the Liquidator shall deem appropriate or otherwise)
in the following order of priority:
(i) to the repayment of the outstanding principal
balance of the Operating Deficit Loan, the Deficit Capital Contributions, the
Limited Partner Loan and the Additional Capital Contributions, on a pari passu
basis, including interest accrued thereon; and
(c) After allocation of all income, gains and losses in
accordance with Article 5, to the Partners in accordance with
the positive balances in their Capital Accounts.
68
74
ARTICLE XI
RECONSTITUTION
11.01 Reconstitution. Notwithstanding any dissolution of the Partnership
under Section 10.01(C) or (F), the business of the Partnership shall be
continued with the Partnership property and the Partnership assets shall not be
liquidated and the Partnership automatically shall be reconstituted with the
remaining general partner or substituted general partner acting as the General
Partner.
If the Partnership is dissolved and no general partner is then serving
in accordance with the provisions of Article VII, a successor Person may be
admitted within ninety (90) days after a dissolution, effective as of the date
of dissolution, as general partner with the Consent of the Limited Partner and
upon the satisfaction of the terms and conditions set forth in Section 7.07
hereof. Upon the admission of such Person as a successor general partner,
without any further Consent or approval of any other Partner, the Partnership
shall be reconstituted as a Successor Limited Partnership.
11.02 Continuation of Business. The Successor Limited Partnership shall
continue the business of the Partnership with the Partnership property. The
Interests
69
75
of the Partners in the Successor Limited Partnership shall be in proportion to
their Interests in the dissolved Partnership. Such Successor Limited Partnership
shall be governed by the terms and provisions of this Agreement and references
in this Agreement to the Partnership or to the Partners or their rights and
obligations shall be understood to comprehend such Successor Limited Partnership
and the Partners thereof and their rights and obligations.
ARTICLE XII
ACCOUNTING AND REPORTS
12.01 Books and Records. The General Partner shall maintain at the
office of the Partnership full and accurate books of the Partnership showing all
receipts and expenditures, assets and liabilities, profits and losses, and all
other books, records and information required by the Act or necessary for
recording the Partnership's business and affairs. The Partnership's books and
records shall be maintained in accordance with the accrual method of accounting.
All Partners and their duly authorized representatives shall have the right to
inspect and copy at their expense any and all of the Partnership's books and
records, including books and records necessary to enable a Partner to defend any
tax
70
76
audit or related proceeding, during reasonable business hours, upon two (2)
business days' Notice to the General Partner.
12.02 Annual Tax Returns. The General Partner shall cause the
Partnership Accountants to prepare all tax returns required of the Partnership.
The General Partner shall be the "tax matters partner" of the Partnership, as
that term is defined in Section 6231(a)(7) of the Code. The General Partner
shall be responsible for the preparation of filing of any tax shelter
registration documents, if applicable, that may be required in Section 6111 of
the Code. Notwithstanding the foregoing, however, the General Partner agrees
that the first tax return filed after completion of the Improvements shall be
subject to review by the Limited Partner. The Limited Partner shall notify the
General Partner of any objections it may have thereto within fifteen (15)
business days after receipt of such return. If the Limited Partner and the
General Partner shall thereafter be unable to agree, such dispute shall be
submitted to one of the so-called "big eight" accounting firms for resolution in
accordance with the provisions of Paragraph 4(c) of the Lease Acquisition
Agreement.
71
77
12.03 Reports to Partners. As soon as practicable after the end of each
Fiscal Year, the General Partners shall cause the Partnership Accountants to
furnish the Partners with reports containing at least the following information:
(A) By each March 15, as the same may be extended as a result of
an extension pursuant to clause (B) of this Section 12.03, IRS Form K-1, or any
similar form as may be required by the IRS, stating the Partner's distributive
share of income, gain, loss, deduction or credit for the previous Fiscal Year;
(B) By each April 15, as the same may be extended by the
Partnership pursuant to requests to extend the date on which it must file its
Federal income tax forms, an unaudited balance sheet and related statements of
income, cash flow and Partners' capital and changes in financial position
certified by an officer of the General Partner;
(C) By each April 30:
(i) any information which the General Partner deems
relevant or is required by applicable law; and
72
78
(ii) a report of the activities of the Partnership
during the previous Fiscal Year;
(D) Within sixty (60) days after the end of each fiscal quarter,
(i) a summary, prepared by the General Partner, of all transactions during such
fiscal quarter between the Partnership and the General Partner or its
Affiliates, if any (including the nature of the transaction and the payments
involved and any other information which the General Partner reasonably deems
relevant or is required by applicable law), and (ii) an unaudited operating
statement for such fiscal quarter.
12.04 Partnership Funds. The General Partner shall have the
responsibility for the safe-keeping and use of all funds and assets of the
Partnership and the General Partner shall not employ such funds in any manner
except for the benefit of the Partnership. All funds of the Partnership not
otherwise invested shall be deposited in one or more accounts maintained in such
banking institutions as the General Partner shall determine.
73
79
ARTICLE XIII
AMENDMENTS AND MEETINGS
13.01 Amendment Procedure. The amendment
procedure is as follows:
(A) amendments to this Agreement may be proposed by the General
Partner or by the Limited Partner; and
(B) a proposed amendment will be adopted and effective only if
it receives the Consent of all the Partners.
In the event all Partners Consent to any of the above changes,
an amendment to this Agreement shall be executed and filed for recording in the
manner prescribed by the Act.
13.02 Meetings and Voting.
(A) Meetings of Partners may be called by the General Partner or
by the Limited Partner for informational purposes or for any purpose permitted
by this Agreement. The General Partner shall give all Partners Notice of the
purpose of such proposed meeting not less than fifteen (15) nor more than sixty
(60) days before the meeting. Meetings shall be held at a time and place
reasonably selected by the General Partner.
74
80
(B) The General Partner may solicit required Consents of the
Limited Partner under this Agreement at a meeting held pursuant to Section
13.02(A) or by written ballot.
ARTICLE XIV
MISCELLANEOUS
14.01 Title to Partnership Property. All Partnership Assets, whether
real or personal, tangible or intangible, shall be deemed to be owned by the
Partnership as an entity, and no Partner, individually, shall have any ownership
interest in such property.
14.02 Validity. Each provision of this Agreement shall be considered
separate and, if for any reason, any provision(s) which is not essential to the
effectuation of the basic purposes of this Agreement is determined to be
invalid, illegal or unenforceable, such invalidity, illegality or
unenforceability shall not impair the operation of or affect those provisions of
this Agreement which are otherwise valid, except that if the provisions of
Section 8.02 hereof shall be determined to be invalid, illegal or unenforceable,
this Agreement shall be deemed to be void and of no further force or effect.
75
81
14.03 Applicable Law. This Agreement, and the application or
interpretation thereof, shall be governed exclusively by its terms and by the
laws of the State of New Jersey.
14.04 Binding Agreement. This Agreement and all terms, provisions and
conditions hereof shall be binding upon the parties hereto, and shall inure to
the benefit of the parties hereto and, except as otherwise provided herein, to
their respective heirs, executors, personal representatives, successors and
assigns.
14.05 Waiver of Action for Partition. Each of the parties hereto
irrevocably waives during the term of the Partnership any right that it may have
to maintain any action for partition with respect to any property of the
Partnership.
14.06 Headings. All section headings in this Agreement are for
convenience of reference only and are not intended to qualify the meaning of any
section.
14.07 Terminology. All personal pronouns used in this Agreement, whether
used in the masculine, feminine or neuter gender, shall include all other
genders, the singular shall include the plural, and vice versa, as the context
may require.
76
82
14.08 Right of First Offer.
(A) Any Partner (the "Sending Partner"), at any time, may give
notice (the "Selling Notice") to the other Partners (the "Receiving Partners")
of its desire to sell its Partnership Interest. At any time within sixty (60)
days after receipt of the Selling Notice, the Receiving Partners each shall
either:
(i) elect, by notice to the Sending Partner, to purchase
or to cause its designee to purchase the Partnership Interest of the Sending
Partner; or
(ii) elect not to purchase or to cause its designee to
purchase the Partnership Interest of the Sending Partner.
(B) If one or more Receiving Partner shall elect to purchase the
Partnership Interest of the Sending Partner, then:
(i) the purchase price (the "Purchase Price") of such
interest shall be an amount equal to that which the Sending Partner would have
been entitled to receive if the Property were sold at the Fair Market Value, all
liabilities of the Partnership, including non-recourse liabilities with respect
to the Property were to be satisfied and the Partnership were to be dis-
77
83
xxxxxx liquidated pursuant to the terms of Article X hereof;
(ii) the Purchase Price will be paid either in cash or,
at the election of any of the Receiving Partners, by delivery of a purchase
money note in the principal amount of the Purchase Price, which note will be
secured by either a collateral assignment of leases and rents or a second
mortgage, and which note shall have a term of three (3) years, prepayable in
full at any time without penalty and with interest only payable during such
term, at a rate computed and payable monthly on the basis of a fraction, the
denominator of which is 360 and the numerator of which is the number of days in
the billing period, equal to the Prime Rate in effect as of the first day of the
month preceding the month in which an installment of interest is due; and
(iii) the Sending Partner shall be removed immediately
from the Partnership and the Sending Partner shall not be entitled to receive
any distributions in connection therewith.
(C) Upon determination of the Fair Market Value, each Receiving
Partner shall have the option, to be exercised within ten (10) business days
after determination of the Fair Market Value, to rescind its
78
84
election to purchase or to cause its designee to purchase the Partnership
Interest of the Sending Partner, in which event the provisions of Paragraph (D)
of this Section 14.08 shall be deemed to apply.
(D) If no Receiving Partner shall elect to purchase or to cause
its designee to purchase the Partnership Interest of the Sending Partner, or if
all Receiving Partners shall rescind their election to purchase or to cause
their designee to purchase the Partnership Interest of the Sending Partner,
then, upon compliance with the provisions of Sections 7.06(B)-(D) and
9.02(A)(i)-(ii) and subject to the provisions of Sections 7.07 and 9.05, as the
case may be, the Sending Partner may assign its entire Interest to a third party
for a purchase price, in the case of such a rescission, of not less than 95% of
the price which the Receiving Partners would have paid if they had not so
rescinded its election to purchase. In addition, in either event, if the Sending
Partner shall not have assigned its interest within six (6) months after the
Receiving Partners either shall have elected not to purchase or shall have
rescinded their election, then, prior to assigning its interest to a third
party, it shall once again offer its Interest to the Receiving Partners pursuant
to this Section 14.08.
79
85
(E) If more than one Receiving Partner shall elect to purchase
the Sending Partner's Interest, then such Interest and the Purchase Price shall
be allocated among such Receiving Partners in the proportion that their
Interests bear to each other.
(F) For the purposes of this Section 14.08, "Fair Market Value"
shall be deemed to mean the amount which a willing buyer would pay and a willing
seller would accept, neither under a compulsion to buy or sell, as a purchase
price, in cash, for the Interest of the Sending Partner. If there shall be a
dispute between the Sending Partner and the Receiving Partners as to the fair
market value of the Interests of the Sending Partner, each shall select and
notify the other of the name and address of an appraiser who is a member of the
American Institute of Appraisers of the National Association of Real Estate
Boards (a "MAI Appraiser") (provided, however, that if there shall be more than
one limited partner, then the Limited Partner, acting in its sole discretion,
shall select an MAI Appraiser to act for all the limited partners). If one of
the parties shall fail to give Notice to the other party within five (5) days
thereafter, specifying the name and address of a MAI Appraiser designated by it,
then the appraiser chosen by
80
86
the other party shall make the determination alone. If two appraisers have been
designated, each appraiser shall promptly, within fifteen (15) days after the
designation by each party, make a separate appraisal determining the then Fair
Market Value of the Interest of the Sending Partner, using the standard set
forth above, and each shall deliver to each other and both the parties a copy of
their appraisals, each of which shall include therein all factors considered in
reaching the fair market value of the Interest of the Sending Partner. Such two
appraisers shall meet twenty (20) days after receipt of each other's
determination, to confer with each other and to attempt to reach agreement on
the Fair Market Value of the Interest of the Sending Partner. If such appraisers
shall concur as to the determination of the Fair Market Value of the Interests,
such concurrence shall be final and binding upon the parties. If such appraisers
shall fail to concur, then they shall immediately designate a third MAI
Appraiser. If the two appraisers shall fail to agree upon the designation of
such third appraiser within five (5) days, then either party on behalf of both
may apply to the American Arbitration Association for the designation of such
third MAI Appraiser. The third appraiser shall conduct such hearings and
investigations as
81
87
he may deem appropriate and shall, within ten (10) days after the date of his
designation determine the Fair Market Value of the Interest of the Sending
Partner, which determination in no event shall be higher than that of the
appraiser of the Sending Partner or lower than that of the appraiser of the
Receiving Partners. In making this determination, the third appraiser shall use
as a standard for determining Fair Market Value the standard set forth in this
Section 14.08. The two determinations closest to each other shall then be
averaged and such average shall be binding upon the parties. Each party shall
pay its own counsel fees and expenses, if any, in connection with any appraisal
under this Section, including the expenses and fees of any MAI Appraiser
selected by it in accordance with the provisions of this Section, and the
parties shall share equally all other expenses and fees of such appraisal. The
determination rendered in accordance with the provisions of this Section shall
be final and binding in fixing Fair Market Value. For purposes of this Section,
a MAI Appraiser shall be one who is independent, impartial and who shall have
had at least ten (10) years experience in valuations of properties of the
character and in the same general area as the Property.
82
88
14.09 General Partner Representations. The General Partner represents
and warrants to the Partnership that:
(A) General Partner is a corporation duly formed and validly
existing in good standing under the laws of the State of New York, and will be
duly registered or qualified to conduct business in each jurisdiction or place
in which the conduct of its business legally requires such registration or
qualification;
(B) The execution, delivery and performance of this Partnership
Agreement by the General Partner and the consummation of the transactions
contemplated hereby have been authorized by all requisite action by or with
respect to the General Partner, and this Partnership Agreement, when executed by
the General Partner, will constitute a valid and binding obligation of the
General Partner, enforceable against the General Partner in accordance with its
terms, subject to bankruptcy laws, and laws affecting creditors rights
severally;
(C) The General Partner is not in violation of its certificate
of incorporation or bylaws or in default in any material respect in the
performance of any material agreement to which the General Partner is a party or
bound. The execution, delivery and performance
83
89
of this Partnership Agreement by the General Partner, and the fulfillment by the
General Partner of the terms herein set forth and the consummation by the
General Partner of the transactions herein contemplated, will not conflict with
or constitute a breach of, or default in a material way under, the certificate
of incorporation or bylaws of the General Partner, or any other material
agreement or instrument to which the General Partner is a party or bound, or any
law;
(D) The Land is properly zoned for the completion of the
Improvements, and the Improvements, as designed, will comply with all applicable
zoning, environmental and other governmental laws, regulations and ordinances;
(E) The Property is not subject to any contract, agreement or
other instrument which will be binding upon the Partnership, or otherwise
affects the Property, other than the Ground Lease, the Hotel/Office Lease, the
Xxxxx Lease and the Reciprocal Construction Operation and Easement Agreement, to
be entered into substantially in the form of the draft dated March 5, 1986,
between the General Partner and the Township of Weehawken and such other
agreements as are set forth on the Title Insurance Commitment No. 819-055303,
issued by
84
90
Commonwealth Land Title Insurance Company (the "Title Commitment");
(F) Attached hereto as Exhibit "D" is a true and complete list
of all contracts, agreements and other instruments (including, without
limitation, all policies of insurance affecting the Property), which the General
Partner has executed in connection with the Property, other than any contracts
or subcontracts executed in connection with the construction of the
Improvements; the General Partner has performed all of its obligations under all
of said documents and no event of default exists under any of said documents,
nor does any event exist which, with the giving of notice, or passage of time,
or both, would constitute an event of default thereunder (or, with respect to
policies of insurance, cause the cancellation thereof); neither the execution
and delivery of this Agreement, nor the assignment of said documents to the
Partnership will cause any such event of default;
(G) There are no actions, claims, suits, proceedings or
investigations, either administrative or judicial, pending or affecting the
Property;
85
91
(H) The General Partner is the sole owner of the Land, free and
clear of all exceptions to title, except for those set forth in the Title
Commitment.
(I) The General Partner has received no notice of, and has no
knowledge of, any pending or contemplated condemnation of the Land or any part
thereof;
(J) No person or entity has any right or option to acquire the
Property or any portion thereof;
(K) The General Partner has not received any notice of any
violations of any Federal, state, county or municipal law, ordinance, order,
regulation or requirement with respect to the Property;
(L) At present, and at no time since the General Partner
acquired the Land, have hazardous substances or wastes within the meanings of
the Environmental Cleanup Responsibility Act (N.J.S.A. 13:1K-6 et seq.) and the
Spill Compensation and Control Act (N.J.S.A. 58:10-23.11 et seq.) or other toxic
or other hazardous material ("hazardous substances") been produced, refined,
treated, disposed of or discharged at the Land and the General Partner has no
knowledge that the Land was so used prior to the purchase of the Land. The
General Partner has at all times during its ownership of
86
92
the Land properly disposed of all hazardous substances and wastes of any kind
generated by the use of the Land. The General Partner has not received any
letter or other communication, written or oral, from the New Jersey Department
of Environmental Protection relating to the presence of hazardous substances at
the Land;
(M) There are no leases, subleases, licenses, franchises,
concessions or other occupancy agreements of any nature whatsoever, oral or
written, affecting the use or occupancy of any portion of the Properties and to
which the Partnership will be bound other than the Ground Lease, the
Hotel/Office Lease, and the Xxxxx Lease; and
(N) The most currently available real estate taxes and
assessments for the Property are set forth on Exhibit "E" annexed hereto, and
all such real estate taxes and assessments which are due and payable have been
paid.
14.10 Counterparts. This Agreement may be executed in several
counterparts, and all so executed shall constitute one Agreement, binding on all
of the parties hereto, notwithstanding that all the parties are not signatories
to the original or the same counterpart.
87
93
14.11 Entire Agreement. This Agreement contains the entire understanding
among the parties hereto and supersedes all prior written or oral agreements
among them respecting the within subject matter, unless otherwise provided
herein.
14.12 Arbitration. Any Partner may at any time request arbitration, of
any matter in dispute. The party requesting arbitration shall do so by giving
notice to that effect to the other party, specifying in said notice the nature
of the dispute, and said dispute shall be determined in Newark, New Jersey, by a
single arbitrator, in accordance with the rules then obtaining of the American
Arbitration Association (or any organization which is the successor thereto).
The award in such arbitration may be enforced on the application of either party
by the order or judgment of a court of competent jurisdiction. The fees and
expenses of any arbitration shall be borne by the parties equally, but each
party shall bear the expense of its own attorneys and experts and the additional
expenses of presenting its own proof.
14.13 Security Interest in Limited Partner's Interest. The Limited
Partner hereby pledges and grants to the Partnership a security interest in its
Interest, as security (i) for a period of five (5) years commencing
88
94
on the Fixed Rent Commencement Date, for its obligations as tenant under the
Hotel/Office Lease (provided that it shall not have been released from liability
under the Hotel/Office Lease prior to the expiration of such five (5) year
period), and (y) for its obligations as guarantor under the Guarantee (provided
that the Guarantee shall not have sooner terminated as a result of the General
Partner's failure to make any required Deficit Capital Contribution or Operating
Deficit Loan or to cause the Partnership to borrow the required funds) and
agrees that the Partnership shall have all of the rights and remedies of a
secured party under the New Jersey Uniform Commercial Code (including the right
to obtain a deficiency judgment against the Limited Partner) in respect to its
Interest in the event of the failure of the Limited Partner to comply with its
obligations as tenant in accordance with the provisions of the Hotel/Office
Lease. Subsequent to such five (5) year period (as the same may be decreased
pursuant hereto), the Limited Partner shall have the right to pledge (such
pledge shall not be deemed to affect any right the General Partner may have to
Consent to any assignment of the Limited Partner's Interest pursuant to Section
9.02(A)(iii) hereof) its Interest to any third party.
89
95
14.14 Financing, Transfer of Land. In connection with any financing
secured by the Improvements or the Ground Lease, including, without limitation,
the First Mortgage, the General Partner shall have the obligation, upon request
by the Limited Partner, to subject its fee interest in the Land to any such
secured financing, simultaneously with the closing of any such financing. In
addition, in connection with any sale or transfer of the Property, the Limited
Partner shall have the obligation, upon request by the General Partner, to
exercise its option pursuant to the Purchase Option Agreement to purchase up to
a one-third interest in the fee interest in the Land simultaneously with the
closing of such sale or transfer; provided, however, that in no event shall the
Limited Partner be required to expend in connection with such purchase an amount
in excess of the sums it will receive pursuant to Section 5.05 hereof as a
result of such sale, less all amounts required to pay the Limited Partner's full
Federal, state and local tax liability in connection therewith, and provided
further that if the General Partner shall make such request, then,
simultaneously with the closing of such sale or transfer, the General Partner
and the Limited Partner
90
96
shall transfer title to the fee to the purchaser or transferee.
14.15 Use of Certain Capital Proceeds by the Limited Partner.
Notwithstanding anything contained herein to the contrary, if at any time during
the term of this Agreement, and provided that the Ground Lease shall be in
effect, the Limited Partner shall receive any funds pursuant to Section 5.05
hereof then, within thirty (30) days after receipt of such funds, the Limited
Partner shall use the same (less the amount of any Federal, state or local taxes
that may be due from the Limited Partner in connection therewith) to purchase an
interest in the fee (not to exceed a 20.9% interest in the aggregate) in
accordance with the Purchase Option Agreement. Thereafter, any amounts received
by the Limited Partner as ground rent under the Ground Lease shall be paid to
the General Partner, to be held in a separate, interest-bearing escrow account
and shall, together with any interest earned thereon, within thirty (30) days
after the end of each fiscal quarter, be released from escrow by the General
Partner and used by the Limited Partner (less the amount of any Federal, state
or local taxes that may be due from the Limited Partner in connection therewith)
to further purchase an interest on the fee
91
97
(not to exceed a 20.9% interest in the aggregate) in accordance with the
Purchase Option Agreement. At such time as the Limited Partner shall have
acquired a full 20.9% or more (other than pursuant to the Default Option (as
such term is defined in the Purchase Option Agreement) interest in the fee
interest in the Land, at the election of the General Partner or the Limited
Partner, the Ground Lease shall be terminated in accordance with the provisions
thereof and the Land conveyed to the Partnership.
14.16 Limited Partner Representations. The Limited Partner represents
and warrants to the Partnership that:
(A) The Limited Partner is a corporation duly formed and validly
existing in good standing under the laws of the State of Delaware, and will be
duly registered or qualified to conduct business in each jurisdiction or place
in which the conduct of its business legally requires such registration or
qualification;
(B) The execution, delivery and performance of this Partnership
Agreement by the Limited Partner and the consummation of the transactions
contemplated hereby have been authorized by all requisite action by or with
respect to the Limited Partner, and this Partnership
92
98
Agreement, when executed by the Limited Partner, will constitute a valid and
binding obligation of the Limited Partner, enforceable against the Limited
Partner in accordance with its terms, subject to bankruptcy laws, and laws
affecting creditors rights severally; and
(C) The Limited Partner is not in violation of its certificate
of incorporation or bylaws or in default in any material respect in the
performance of any material agreement to which the Limited Partner is a party or
bound. The execution, delivery and performance of this Partnership Agreement by
the Limited Partner, and the fulfillment by the Limited Partner of the terms
herein set forth and the consummation by the Limited Partner of the transactions
herein contemplated, will not conflict with or constitute a breach of, or
default in a material way under, the certificate of incorporation or bylaws of
the Limited Partner, or any other material
93
99
agreement or instrument to which the Limited Partner is a party or bound, or
any law.
IN WITNESS WHEREOF, this Agreement has been executed as of the day and
year first above written.
GENERAL PARTNER:
XXXXX MOUNTAIN INDUSTRIES, INC.
By: /s/ Xxxxxxx X. Xxxxx,
--------------------------------
Xxxxxxx X. Xxxxx,
Vice President
LIMITED PARTNER:
PAINEWEBBER INCORPORATED
By: /s/ Xxxxxx Xxxxxx,
--------------------------------
Xxxxxx Xxxxxx,
Senior Vice President
94
100
Exhibit "A"
Description of Land
BLOCK 34c LOT 4.04
TOWNSHIP OF WEEHAWKEN
XXXXXX COUNTY, NEW JERSEY
Commencing at a point in the easterly line of Park Avenue, said
point being N 21 degrees-21'-30" E 1129.16 feet along the same from its
intersection with the northerly line of 15th Street, all as shown on a map
entitled "Subdivision of Properties of Xxxxx Mountain Industries, Inc:," and
prepared by Xxxxxxxx & Xxxxx Engineering Company, dated March 14, 1986, revised
to March 19, 1986, and running; thence,
A) N 21 degrees-21'-30" E along said property line, 86.70 feet to
a point on a curve; thence,
B) Northeasterly, along the property line on a curve to the left
having a radius of 1093:01 and a radial bearing of N 14
degrees-11'-23" W through a central angle of 25 degrees-01'-56"
for an arc distance of 477:53 feet; thence,
C) Along said property line, N 38 degrees-30'-00" E, 550.05 feet;
thence,
D) Departing from said property line, S 50 degrees-33'-12" E,
86.23 feet to a point; thence,
E) N 38 degrees-52'-10" E, 383.37 feet to a point of curvature;
thence,
F) Northeasterly, on a curve to the right having a radius of 40
feet through a central angle of 90 degrees-00'-00" for an arc
distance of 62.83 feet; thence,
G) S 51 degrees-07'-50" E, 156.00 feet; thence,
H) S 38 degrees-52'-10" W, 35.00 feet to the point of beginning;
thence,
1) S 51 degrees-07'-50" E, 101.00 feet; thence,
2) N 38 degrees-52'-10" E, 121.00 feet; thence,
A-1
101
3) S 51 degrees-07'-50" E, 124.00 feet; thence,
4) S 38 degrees-52'-10" W, 122.13 feet; thence,
5) S 8 degrees-06'-20" E, 41.04 feet; thence,
6) S 38 degrees-52'-10" W, 91.74 feet; thence,
7) S 85 degrees-50'-40" W, 41.04 feet; thence,
8) S 38 degrees-52'-10" W, 102.13 feet; thence,
9) N 51 degrees-07'-50" W, 225.00 feet; thence,
10) N 38 degrees-52'-10" E, 251.00 feet to the point
of beginning.
Containing 75,071 square feet (1.72 acres).
A-2
102
[SUBDIVISION OF LINCOLN HARBOR]
GRAPHIC
A-3
103
Exhibit "B"
Terms of Commitment
Principal Amount: Up to $87 per square foot
of floor space in the Improvements
Term: Minimum of 17 years 6 months from the
Commencement Date (as such term is
defined in the Agreement of Lease,
dated of even date herewith, between
Xxxxx-PW Limited Partnership, as
landlord, and the Limited Partner, as
tenant, for the premises known as the
Data Processing Center)
Amortization Schedule: 11.97% constant
Interest Rate: 11.25% or less per annum
Security: Senior leasehold mortgage,
subordinated fee, no personal liability
B-1
104
Exhibit "C"
Easements
The easements granted pursuant to the Reciprocal Easement and
Maintenance Agreement, dated of even date herewith, among the General Partner,
the Partnership and Xxxxx-PW Limited Partnership.
C-1
105
Exhibit "D"
Contracts
XXXXX-PW/HOTEL LIMITED PARTNERSHIP AGREEMENT
NAME OF DOCUMENT PARTIES DATE
---------------- ------- ----
Cover Note Insurance X.X. Xxxxx & Co. Ltd. May 1, 1985
Binder and Xxxxx Mountain Industries,
Inc., et al.
Liability Insurance Firemen's Fund Insurance June 17, 1985
Policy Company and Xxxxx Mountain
Industries, Inc., et al.
Property Coverage The Aetna Casualty and Surety May 1, 1983
Insurance Policy Company and Xxxxx Mountain
Industries, Inc., et al.
D-1
106
Exhibit "E"
Taxes
E-1
107
[Weehawken Tax Xxxx]
FRONT
108
[Weehawken Tax Xxxx]
BACK
109
Prepared by:
/s/ Xxxxx X. Xxxxx, Esq.
----------------------------
Xxxxx X. Xxxxx, Esq.
HOROWITZ, BROSS, SININS
& IMPERIAL, P.A.
000 Xxxxx Xxxxx
Xxxxxxxx, Xxx Xxxxxx 00000-0000
RESTATED CERTIFICATE
OF
LIMITED PARTNERSHIP
OF
XXXXX-PW HOTEL LIMITED PARTNERSHIP
Pursuant to the Laws of the State of New Jersey
WHEREAS, pursuant to the laws of the State of New Jersey and a certain
Limited Partnership Agreement dated April 14, 1986 as amended by First Amendment
to the Limited Partnership Agreement of Xxxxx-PW Hotel Limited Partnership,
dated of even date herewith, (collectively, the "Partnership Agreement"), and as
set forth in a certain Certificate of Limited Partnership of Xxxxx-PW Hotel
Limited Partnership dated April 14, 1986 (the "Certificate"), a New Jersey
Limited Partnership named Xxxxx-PW Hotel Limited Partnership (the "Partnership")
was formed;
WHEREAS, the partners desire to restate and amend the Certificate, as
more particularly provided herein.
NOW THEREFORE, the undersigned do hereby amend and restate the
Certificate in its entirety as follows:
WE, THE UNDERSIGNED, desiring to continue the Partnership as a limited
partnership pursuant to the laws of the State of New Jersey and a certain
Limited Partnership Agreement heretofore executed as amended (herein referred to
collectively as the "Partnership Agreement") do hereby certify as follows:
1. NAME.
The name of the limited partnership is: XXXXX-PW TOWER B LIMITED
PARTNERSHIP.
110
2. NATURE OF BUSINESS.
The purpose and character of the business of the Partnership is to
acquire leasehold interest in, own, construct, renovate, hold for capital
appreciation and finance certain properties, to cause the General Partner to
complete construction and renovation of improvements thereto, to manage, rent
and otherwise operate the properties, to sell, exchange, dispose of lease,
mortgage and otherwise encumber all or any part of the properties, to incur
indebtedness, for any of the foregoing purposes, and to engage in any other kind
of lawful activity related to the foregoing.
3. REGISTERED OFFICE AND REGISTERED AGENT.
The registered office of the Partnership in the State of New Jersey
shall be c/o Hartz Mountain Industries, Inc., 000 Xxxxx Xxxxx, Xxxx Xxxxxx Xxx
0000, Xxxxxxxx, Xxx Xxxxxx 00000-0000 and the registered agent of the
Partnership for service of process in the State of New Jersey shall be Xxxxx
Mountain Industries, Inc., 000 Xxxxx Xxxxx, Xxxx Xxxxxx Xxx 0000, Xxxxxxxx, Xxx
Xxxxxx 00000-0000.
4. NAMES, ADDRESSES AND CAPITAL CONTRIBUTIONS.
(a) The name, business address and initial capital
contribution of the General Partner is:
Capital
Name Address Contribution
---- ------- ------------
Xxxxx Mountain 000 Xxxxx Xxxxx $834.20
Industries, Inc. Secaucus, N.J. 07096-1411
(b) The name, business address and initial capital
contribution of the Limited Partner is:
Capital
Name Address Contribution
---- ------- ------------
PaineWebber 1285 Avenue of $165.80
Incorporated the Americas
New York, N.Y. 10019
5. ADDITIONAL CONTRIBUTIONS.
The General Partner shall be obligated to make Operating Deficit Loans
or Deficit Capital Contributions (as such terms are defined in the Partnership
Agreement) to the Partnership upon the occurrence of operating deficits if of
the net operating revenues shall be insufficient to pay all debt service on any
loan, secured or unsecured, including without limitation,
-2-
111
the first mortgage, affecting the properties or the Partnership, for any reason
other than the failure of the tenant under the lease to make all payments
required thereunder, including, without limitation, in connection with
bankruptcy proceedings and whether or not the trustee in bankruptcy shall
disaffirm the lease, and to make such additional capital contributions as are
necessary in order to complete the Improvements (as defined in the Partnership
Agreement) in accordance with the provisions of the ground lease and the lease,
but may not make any other additional capital contributions to the Partnership.
The Limited Partner may make the Limited Partner Loan (as defined and set forth
in the Partnership Agreement) but shall not be required to make any additional
loans or capital contributions to the Partnership.
6. TERM.
The term of the Partnership shall be from the date of filing of this
Certificate until December 31, 2086.
7. ASSIGNMENT BY LIMITED PARTNER.
The Limited Partner may assign its ownership interest in the Partnership
in whole or in part, by an executed and acknowledged written instrument only if
all of the following conditions are satisfied:
(a) the assignor and assignee file a notice of transfer with the
General Partner which contains the information reasonably
required by the General Partner; and
(b) any reasonable costs of transfer shall have been paid to the
Partnership; and
(c) the General Partner shall have consented to the assignment,
which consent may be granted or withheld in its sole discretion,
unless the Limited Partner assigns its interest in the
Partnership, in whole or in part, to an Affiliate (as defined in
the Partnership Agreement) .
8. WITHDRAWAL OF PARTNERS.
The Limited Partner and the General Partner may transfer and sell their
respective interests in the Partnership pursuant to the Partnership Agreement,
subject to the Right of First Offer (as defined in the Partnership Agreement).
9. DISTRIBUTIONS OF PROPERTY.
Capital Proceeds and eighty-five percent (85%) of Net Operating Revenues
(as such terms are defined in the Partnership
-3-
112
Agreement) shall be distributed quarterly, after the payment of debt service on
the first mortgage or any other financing affecting property or the Partnership,
(a) first to pay any accrued unpaid interest on the principal, and the
outstanding principal balance of the Operating Deficit Loan, the Deficit Capital
Contributions and the Limited Partner Loan (as such terms are defined in the
Partnership Agreement), on a pari passu basis; and (b) second, the balance, if
any, shall be distributed 83.42% to the General Partner and 16.58% to the
Limited Partner.
Such quarterly payments shall be adjusted annually within ninety (90)
days after the end of each fiscal year, and excess amounts, if any shall be
credited against future required payments; underpayments will be paid at the
time of such adjustment.
10. RETURN OF CONTRIBUTION.
No partner shall have the right to withdraw or reduce its capital
contributions except, upon the dissolution of the Partnership, the Liquidator
(as defined in the Partnership Agreement) shall liquidate the assets of the
Partnership and contributions of the Partners will be returned to them in
accordance with the positive balances in their capital accounts after the
allocations of all income, gains and losses in accordance with provisions of the
Partnership Agreement, subject, however, to prior satisfaction of the following:
(a) all liabilities and obligations of the Partnership other
than to the Partners; and
(b) all liabilities and obligations of the Partnership to the
Partners in the following order of priority: to repayment of the
outstanding principal balance of the Operating Deficit Loan, the
Deficit Capital Contributions, and the Limited Partner Loan (as
such terms are defined in the Partnership Agreement) on a pari
passu basis, including interest accrued thereon.
11. DISSOLUTION.
The Partnership shall be dissolved upon the happening of any of the
following events:
(a) an election to dissolve the Partnership is made by the
General Partner with the consent of the Limited Partner;
-4-
113
(b) the sale, exchange, or other disposition
of all, or substantially all of the Partnership's assets;
(c) the death, bankruptcy, dissolution, disability, legal
incapacity, removal or withdrawal of the sole remaining General
Partner or the sale, transfer or assignment by the sole
remaining General Partner of its general partnership interest;
(d) the occurrence of December 31, 2086;
(e) the tenant under the Lincoln Harbor Tower II Lease (as such
term is defined in the Partnership Agreement) shall elect
pursuant to Section 38.11 of the Lincoln Harbor Tower B Lease to
terminate the lease; and
(f) any other event causing dissolution of the Partnership under
the Revised New Jersey Uniform Limited Partnership Act, N.J.S.A.
42:2A-1 et. seq.
Upon dissolution of the Partnership, a full accounting of the assets shall be
taken, the assets shall be liquidated, and the capital proceeds thereof shall be
distributed.
12. CONTINUATION AFTER WITHDRAWAL
OF A GENERAL PARTNER.
Upon the death, bankruptcy, dissolution, disability, legal incapacity,
or removal of a General Partner, the remaining General Partner, if any, shall
serve as the General Partner of the Partnership, and shall continue the business
of the Partnership. Upon the death, bankruptcy, dissolution, disability, legal
incapacity, or removal of the sole remaining General Partner, or the transfer by
the sole remaining General Partner of its partnership interest, a person
selected by the Limited Partner shall serve as the General Partner of the
Partnership and continue the business of the Partnership if the Partnership is
reconstituted under the Partnership Agreement.
-5-
114
13. AGREEMENT OF LIMITED PARTNERSHIP.
The provisions of this Restated Certificate of Limited Partnership shall
be subject to the Partnership Agreement.
IN WITNESS WHEREOF, the undersigned have hereto set their hands this
30th day of March , 1988.
GENERAL PARTNER:
ATTEST: XXXXX MOUNTAIN INDUSTRIES, INC.
BY: /s/ BY: /s/
----------------------- ------------------------------------------
LIMITED PARTNER:
PaineWebber Incorporated
BY: /s/ BY: /s/ Xxxxxx Xxxxxx,
----------------------- ------------------------------------------
Xxxxxx Xxxxxx,
Senior Vice President
-6-
115
STATE OF NY )
:SS.:
COUNTY OF NY )
BE IT REMEMBERED, that on this 14th day of March of 1988, before me the
subscriber Xxxxxx Xxxxxxxxxxx personally appeared Xxxxxx Xxxxxx, who I am
satisfied, is the person who signed the within instrument as Vice President of
PaineWebber Incorporated, the corporation named therein and he thereupon
acknowledged that the said instrument made by the corporation and sealed with
its corporate seal, was signed, sealed with the corporate seal and delivered by
him as such officer and is the voluntary act and deed of the corporation, made
by virtue of authority from its Board of Directors.
/s/ Xxxxxx Xxxxxxxxxxx
------------------------------
Notary Public
-7-
116
STATE OF NJ )
:SS.:
COUNTY OF XXXXXX )
BE IT REMEMBERED, that on this 22nd day of March of 1988, before me the
subscriber Xxxxx X. Xxxxxx personally appeared Xxxxx X. Xxxxxxxx, who I am
satisfied, is the person who signed the within instrument as Vice President of
Xxxxx Mountain Industries, Inc., the corporation named therein and he thereupon
acknowledged that the said instrument made by the corporation and sealed with
its corporate seal, was signed, sealed with the corporate seal and delivered by
him as such officer and is the voluntary act and deed of the corporation, made
by virtue of authority from its Board of Directors.
/s/ Xxxxx X. Xxxxxx
-----------------------------
Notary Public
-8-
