EXHIBIT 3.3
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ASSIGNMENT AGREEMENT
This Agreement is first made and entered into as of the 10th day of
September, 1987 by and among Arvida/JMB Partners, L.P., a Delaware limited
partnership (the "Partnership"), Arvida/JMB Managers, Inc., an Illinois
corporation which is the General Partner of the Partnership (the "General
Partner"), JMB Investor Services Corporation, the initial limited partner
of the Partnership (the "Initial Limited Partner"), and those persons
to whom limited partnership interests in the Partnership are
hereinafter assigned pursuant to this Assignment Agreement (the "Assignee
Holders").
WHEREAS:
A. The Partnership is a limited partnership formed and existing
under an Amended and Restated Agreement of Limited Partnership dated as of
September 10, 1987 among the General Partner, Arvida/JMB Associates, an
Illinois general partnership, Arvida/JMB Limited Partnership, an Illinois
limited partnership (together with Arvida/JMB Associates, referred
to herein as the "Associate Limited Partners") and the Initial Limited
Partner (the "Partnership Agreement") (all capitalized terms herein having
the same definitions as set forth in the Partnership Agreement, except as
otherwise specifically provided herein).
B. The Partnership expects to issue additional limited partnership
interests (the "Additional Limited Partnership Interests") to the Initial
Limited Partner and all right and interest in and title to such Additional
Limited Partnership Interests will be assigned, sold and transferred to
Assignee Holders pursuant to a public offering of such Additional Limited
Partnership Interests as provided in Sections 3.3A and 3.3G of the
Partnership Agreement (the "Public Offering").
C. Contemporaneously with the issuance of such Additional Limited
Partnership Interests to the Initial Limited Partner and the assignment,
sale and transfer of the Additional Limited Partnership Interests to the
Assignee Holders, all of the proceeds of such sales will be paid to the
Partnership as capital contributions with respect to such Additional
Limited Partnership Interests.
NOW, THEREFORE, in consideration of the foregoing premises and the
promises hereinafter contained, it is hereby agreed by and among the
parties hereto as follows:
1. Assignment of Additional Partnership Interests. The
Initial Limited Partner will transfer and assign to the Assignee Holders
who purchase Additional Limited Partnership Interests in the Public
Offering all of the Initial Limited Partner's rights and interests in and
title to the Additional Limited Partnership Interests. The rights and
interests so transferred and assigned to the Assignee Holders shall include
without limitation, (a) all rights to receive distributions of Cash Flow,
(b) all rights in respect of the allocation of Profits and Losses, and
credits (if any), under the Partnership Agreement, (c) all rights in
respect of Consents to admission of a successor or additional General
Partner, (d) all rights to inspect books and records and to receive all
financial and other reports relating to the Partnership, (e) all voting
rights and rights to attend or call meetings, and (f) all other rights
which Limited Partners (other than Associate Limited Partners) have or may
have in the future under the Partnership Agreement, and, except as
otherwise provided in the Partnership Agreement, the Revised Uniform
Limited Partnership Act of the State of Delaware and other applicable law.
The General Partner, by the execution of this Assignment Agreement, hereby
(a) consents to the transfer and assignment of the Additional Limited
Partnership Interests to the Assignee Holders pursuant to this Agreement,
(b) acknowledges that the Assignee Holders are intended to be third party
beneficiaries of all rights and privileges of the Initial Limited Partner
in respect of the Additional Limited Partnership Interests, and (c)
acknowledges and agrees that, in accordance with the foregoing transfer and
assignment, all of the Initial Limited Partner's rights and privileges in
respect of the Additional Limited Partnership Interests may be exercised by
the Assignee Holders.
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2. Instrument of Assignment. Effective upon the transfer to the
Partnership of the required capital contributions in respect of Additional
Limited Partnership Interests from time to time during the Public Offering,
and upon the amendment of the Certificate of Limited Partnership of the
Partnership to reflect the issuance of Additional Limited Partnership
Interests to the Initial Limited Partner, the Initial Limited Partner shall
execute an Instrument of Assignment transferring and assigning all of its
rights and interests in and to such Additional Limited Partnership
Interests to the Assignee Holders. The names and addresses of the Assignee
Holders who have purchased the Additional Limited Partnership Interests
shall be set forth on such Instrument and, upon its receipt and
acknowledgement by the General Partner, such Instrument of Assignment shall
be binding in all respects upon the Partnership, the General Partner, the
Initial Limited Partner and the Assignee Holders named therein; provided
that any such Instrument of Assignment may be amended by written instrument
executed by the Initial Limited Partner and the General Partner for the
purpose of correcting any error or omission contained therein. Notification
of the name and address of an Assignee Holder set forth on any such
Instrument of Assignment shall be mailed, postage prepaid, to such Assignee
Holder named therein; and thereafter any address contained therein shall be
subject to change only upon the receipt by the Initial Limited Partner of
written notification of a change of an Assignee Holder's address signed by
such Assignee Holder.
3. Subsequent Assignments. Any subsequent transfer or assignment
or reassignment of Additional Limited Partnership Interests by any Assignee
Holder to any other Person must conform in all respects with the
requirements of Section 7.2 of the Partnership Agreement and shall be
subject to all restrictions on transfer provided in Section 7.1 of the
Partnership Agreement.
4. Voting. The Initial Limited Partner hereby agrees that, with
respect to any matter on which a vote of Limited Partners is taken in
accordance with the Partnership Agreement or as to which any Consent is
requested, it will vote the Additional Limited Partnership Interests
transferred to Assignee Holders pursuant to this Agreement or grant or
withhold such Consent solely for the benefit of, and in accordance with the
written instructions of, the respective Assignee Holders with respect to
their respective Interests; provided, however, that the voting rights of an
Assignee Holder who transfers Additional Limited Partnership Interests will
terminate with respect to such Interests upon such transfer, whether or not
the transferee thereof is admitted as a Substituted Limited Partner with
respect thereto. Additional Limited Partnership Interests assigned to
Assignee Holders who do not provide such written instructions to the
Initial Limited Partner will not be voted nor any Consent granted on any
such matter. The Initial Limited Partner will provide notice to the
Assignee Holders containing information regarding any matters to be voted
upon or as to which any Consent is requested sufficiently in advance of the
date of the vote for which such Consent is requested to permit such
Assignee Holders to provide such written instructions and shall otherwise
establish reasonable procedures for any such voting or the granting of such
Consent. The Partnership and the General Partner hereby agree to permit
Assignee Holders to attend any meetings of Limited Partners and the Initial
Limited Partner shall, upon written request of Assignee Holders owning
Additional Limited Partnership Interests which represent in the aggregate
10% or more of all of the outstanding Limited Partnership Interests,
request the General Partner to call a meeting of Limited Partners or to
submit a matter to the Limited Partners without a meeting pursuant to the
Partnership Agreement.
5. Reports. The Initial Limited Partner will mail to any Assignee
Holder (at the address provided under paragraph 2 above) any report,
financial statement or other communication received from the Partnership or
the General Partner with respect to the Additional Limited Partnership
Interests transferred to such Assignee Holder. In lieu of the mailing of
any such document by the Initial Limited Partner, the Initial Limited
Partner may, at its option, request the Partnership to mail any such
communications directly to the Assignee Holders, and the Initial Limited
Partner shall be deemed to have satisfied its obligations under this
paragraph 5
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upon its receipt of written notification from the General Partner that any
such communication has been mailed, postage prepaid, to all of such
Assignee Holders at the addresses provided under paragraph 2 above.
6. Substituted Limited Partners. Any Assignee Holder acquiring
Additional Limited Partnership Interests in the Public Offering and
desiring to become a Substituted Limited Partner in the Partnership with
respect to such Interests may do so by delivering to the General Partner an
appropriately executed Signature Page and Power of Attorney and such other
document or documents as may reasonably be requested by the General Partner
and payment of an amount required to cover all actual, necessary and
reasonable expenses, fees and filing costs in connection with such
substitution. The Initial Limited Partner and the General Partner will
advise and assist any Assignee Holder who so requests in obtaining and
executing such documents. Upon receipt of such documents, the General
Partner will use its best efforts to cause the execution and filing of an
amendment to the Certificate of Limited Partnership admitting such Assignee
Holder as a Substituted Limited Partner. Upon such filing, the Additional
Limited Partnership Interests of such Substituted Limited Partner shall no
longer be subject to this Assignment Agreement in any respect, and any and
all rights of such Substituted Limited Partner, including the right to
assign or transfer such Interests to any other Person, shall be governed
exclusively by the Partnership Agreement.
7. Liability. Except as otherwise set forth herein and subject
to Section 5.8 of the Partnership Agreement, neither the Partnership, the
General Partner nor the Initial Limited Partner assumes any obligation or
shall be subject to any liability under this Assignment Agreement to the
Assignee Holders except to the extent that any such liability was the
result of misconduct or negligence. In addition, each of the Partnership,
the General Partner and the Initial Limited Partner agrees to use its best
efforts and good faith in the performance of the duties specifically set
forth hereunder. This Assignment Agreement shall not permit the Assignee
Holders to contract away the fiduciary duty owed to them by the Initial
Limited Partner under the common law of agency.
8. Termination. This Assignment Agreement shall remain in effect
so long as Additional Limited Partnership Interests are owned by any
person.
9. Assignee Holders Party to Agreement. Upon subscription and
payment for Additional Limited Partnership Interests by a purchaser and
acceptance of such subscription and recognition of the purchaser as an
Assignee Holder by the General Partner on behalf of the Partnership, each
such Assignee Holder shall be and become a party to this Assignment
Agreement and the Subscription Agreement contained in the Prospectus, shall
be bound by all of the terms and conditions hereof and of the Subscription
Agreement and shall be bound by all of the terms and conditions of the
Partnership Agreement and shall be entitled to all of the rights of an
Assignee Holder hereunder, under the Partnership Agreement and as assignees
under the Delaware Revised Uniform Limited Partnership Act.
10. Amendment. This Assignment Agreement may be amended by a
written instrument executed by the Partnership, the General Partner and the
Initial Limited Partner in order to cure any ambiguity, correct or
supplement any provision hereof or to make any other provisions with
respect to matters or questions arising under this Agreement not
inconsistent with the purposes of this Agreement, provided that such
amendment is not adverse to the interests of the Assignee Holders
hereunder.
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IN WITNESS WHEREOF, the parties hereto have executed this Assignment
Agreement as of the date first above written.
ARVIDA/JMB PARTNERS, L.P.
a Delaware limited partnership
By: Arvida/JMB Managers, Inc., an Illinois
corporation, General Partner
By: /s/ Xxxxxx X. Xxxxx
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Vice President
ARVIDA/JMB MANAGERS, INC.
as General Partner of the Partnership
By: /s/ Xxxxxx X. Xxxxx
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Vice President
JMB INVESTOR SERVICES CORPORATION
as the Initial Limited Partner
of the Partnership
By: executed signature
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Vice President
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