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Exhibit 10.25
AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF
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OLD ORCHARD URBAN LIMITED PARTNERSHIP
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THIS AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP
is made this _____ day of December, 1996 by and between USC Old
Orchard, Inc., a Delaware corporation (the "General Partner") and
Urban Shopping Centers, L.P., an Illinois limited partnership
(the "Limited Partnership," the General Partner and the Limited
Partner being collectively the "Partners").
WITNESSETH:
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WHEREAS, the Partners are the sole partners of ZML-Old
Orchard Limited Partnership, an Illinois limited partnership,
formed pursuant to that certain Agreement of Limited Partnership
dated as of August 30, 1993 (the "Partnership Agreement") having
succeeded to the interests of all of the former partners thereof,
and;
WHEREAS, the Partners desire to amend and restate the
Partnership Agreement in its entirety;
NOW, THEREFORE, in consideration of the mutual promises and
agreements herein made and intending to be legally bound thereby,
the Partners hereto hereby agree as follows:
ARTICLE 1
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NAME OF PARTNERSHIP
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The name of the partnership shall be "Old Orchard Urban
Limited Partnership" (hereinafter called the "Partnership").
ARTICLE 2
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CHARACTER OF BUSINESS
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The purpose of the Partnership is to hold, maintain,
operate, improve, develop, lease and otherwise use for profit
that certain real property, commonly known as the Old Orchard
Shopping Center, located at Skokie Boulevard, Old Orchard Road
and Golf Road in the Village of Skokie, Illinois, and more
particularly described on Exhibit "A" attached hereto and made a
part hereof (the "Property"). In connection with the foregoing,
the Partnership may engage in such other activities as the
General Partner may from time to time determine to be necessary
or appropriate to such purposes. The Partnership shall not engage
in any business unrelated to its interest in the Property and
shall not own any assets other than those related to its interest
in the Property.
ARTICLE 3
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PRINCIPAL PLACE OF BUSINESS
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The principal place of business of the Partnership shall be
at 000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx
00000, or at such other place as the General Partner may
hereafter determine from time to time.
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ARTICLE 4
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TERM OF PARTNERSHIP
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The term of the Partnership shall continue until December
31, 2045, unless terminated earlier in accordance with the terms
of this Agreement.
ARTICLE 5
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PERCENTAGE INTERESTS; CAPITAL CONTRIBUTIONS;
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STATUS OF LIMITED PARTNERS
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5.1 The General Partner shall have a one percent (1%)
interest, and the Limited Partner shall have a ninety nine
percent (99%) interest, in the Partnership's profits, losses,
capital and distributions. The foregoing interests are
hereinafter referred to as the "Partnership Interests".
5.2 The Partners have heretofore made various contributions
to the capital of the Partnership which have been reflected in
their respective capital accounts. No capital call for any
additional contributions of capital may be made without the prior
written approval of the Limited Partner, which it may withhold in
its sole and absolute discretion.
5.3 Status of Limited Partner.
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(a) The Limited Partner shall not participate in the
management or control of the Partnership's business, nor transact
any business for the Partnership, nor have the power to act for
or bind the Partnership.
(b) The Limited Partner shall not have any personal
liability whatsoever to the Partnership or to any other Partner
or to the creditors of the Partnership for the debts of the
Partnership or any of its losses.
(c) The death or legal incapacity or dissolution of
the Limited Partner shall not cause a dissolution of the
Partnership, but the rights of the Limited Partner to share in
the profits and losses of the Partnership and to receive
distributions of Partnership funds shall, on the happening of
such an event with respect to the Limited Partner, devolve upon
its successor, subject to the terms and conditions of this
Agreement, and the Partnership shall continue as a limited
partnership.
ARTICLE 6
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CAPITAL ACCOUNTS
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The General Partner shall establish and maintain a capital
account for each Partner. The capital accounts of all Partners
shall be determined and maintained throughout the full term of
the Partnership in accordance with Section 704(b) of the Internal
Revenue Code of 1986, as amended (the "Code"). The term "capital
account", when used herein, shall mean, with respect to any
Partner, the entire "Capital Contribution" which has been made by
such Partner as herein provided (i) reduced by (a) any Loss
allocated to such Partner, (b) any distributions of cash or other
property to such Partner, and (c) any expenditures of the
Partnership described, or treated under Section 704(b) of the
Code as described, in Section 705(a)(2)(B) of the Code, and (ii)
increased by any Profit allocated to such Partner. In addition
to the specific increases and decreases to a capital account
which are provided to be made under this Agreement, any item
which is required to be reflected in a capital account under the
second sentence of this Article 6 shall be so reflected.
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The capital account of any Partner shall reflect all prior
adjustments to the capital account of any predecessor holder of
such Partner's interest in the Partnership. "Capital
Contribution", when used herein, shall mean the amount of cash
and the fair market value of other property contributed by a
Partner to the Partnership (net of liabilities assumed or taken
subject to in connection with such contribution).
ARTICLE 7
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ALLOCATIONS OF PROFIT AND LOSS
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7.1 "Profit" and "Loss" for purposes of this Agreement
shall be defined as net profit and net loss (and where
appropriate hereunder, each item of Partnership income, gain,
loss, deduction or credit) determined in accordance with the
accounting method followed by the Partnership for federal income
tax purposes and otherwise in accordance with tax accounting
principles and procedures applied in a consistent manner. The
calculation of Profit and Loss shall take into account
partnership income exempt from federal income tax and Partnership
expenses and costs, not deductible or properly chargeable to
capital, for federal income tax purposes.
7.2 Profit and Loss of the Partnership, as the case may be,
shall be allocated between the Partners for each fiscal year of
the Partnership in the ratio of their respective Partnership
Interests. Notwithstanding anything to the contrary in this
Agreement, the interest of the General Partner in each item of
Partnership income, gain, loss, deduction and credit will be
equal to at least 1% of each such item at all times during the
existence of the Partnership. In determining the General
Partner's interest in such items, any Partnership interest owned
by the General Partner as a Limited Partner shall not be taken
into account.
7.3 In the case of any property contributed to the
Partnership or any other property to which Section 704(c) of the
Code (or the principles of Section 704(c) of the Code) applies,
Partnership allocations of income, gain, loss and deduction shall
be made (solely for Federal income tax purposes and in a manner
which does not duplicate prior capital account adjustments) in
accordance with Section 704(c) of the Code so as to take account
of the variation between the tax basis of the property for
Federal income tax purposes and its fair market value at the time
of contribution.
ARTICLE 8
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DISTRIBUTIONS
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8.1 The term "Cash Available for Distribution" of the
Partnership means all cash determined by the General Partner to
be available for distribution. Distributions of Cash Available
for Distribution shall be made at such intervals as may be
determined by the General Partner.
8.2 Any Cash Available for Distribution shall be
distributed to the Partners pari passu in the ratio of their
respective Partnership Interests.
ARTICLE 9
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BOOKS, RECORDS, ACCOUNTING AND REPORTS
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9.1 The General Partner shall maintain the books and
records of the Partnership, which will be separate from the books
and records of each Partner. The Partnership's books and records
together with all of the documents and papers pertaining to the
business of the Partnership shall be kept and maintained at the
principal place of business of the Partnership, and
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at all reasonable times shall be open to the inspection of and
may be copied and excerpts taken therefrom by the Limited Partner
or its duly authorized representative. The fiscal year of the
Partnership shall be the calendar year and the books and records
of the Partnership shall be kept on a calendar year basis in
accordance with generally accepted accounting principles
applicable to an accrual basis taxpayer, except as otherwise
determined by the General Partner.
9.2 As soon as reasonably practicable after the end of each
fiscal year of the Partnership, the General Partner shall prepare
a balance sheet of the Partnership, a statement of the capital
accounts of the Partners as of the last day of such fiscal year
and a statement of income or loss of the Partnership for such
year. In addition, the General Partner shall cause income tax
returns for the Partnership to be prepared and filed with the
appropriate authorities and shall prepare copies of all such
returns and a report indicating the Partners' respective shares
of the Partnership's Profit and/or Loss for such year for federal
and state income tax purposes. Any transfer, contribution,
liquidation, or redemption with respect to a Partnership interest
shall be accounted for by using an interim closing of the books
on the accrual method.
ARTICLE 10
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MANAGEMENT AND CONTROL
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10.1 Except as set forth in Section 10.3 below, the
management and control of the Partnership and its affairs and
business shall rest exclusively with the General Partner, which
shall have all of the rights that may be possessed by a partner
pursuant to the Act, together with such other rights and powers
as are otherwise conferred by law or are necessary, advisable or
convenient for the management of the business and affairs of the
Partnership. Without limiting the generality of the foregoing,
the General Partner shall have the following rights and powers:
10.1.1 To spend the capital and income of the
Partnership in the exercise of any rights or powers possessed by
the General Partner hereunder.
10.1.2 To sell, exchange, purchase, hold, lease,
operate and manage any and all Partnership property and to enter
into and perform agreements with others with respect to any such
activities, which agreements may contain such terms, provisions
and conditions as the General Partner shall approve.
10.1.3 To purchase and sell personal property
incidental to the operation of the Partnership's property and to
borrow money to finance the purchase of such personal property.
10.1.4 To purchase from others, at the expense of
the Partnership, contracts of liability, casualty and other
insurance which the General Partner deems advisable, appropriate
or convenient for the protection of the properties or affairs of
the Partnership or for any other purpose convenient or beneficial
to the Partnership.
10.1.5 To invest Partnership funds in commercial
paper, government securities, certificates of deposit, banker's
acceptances or similar investments.
10.1.6 To borrow money from others and to secure
the repayment of such borrowing by executing mortgages or deeds
of trust, pledging or otherwise encumbering or subjecting to
security interests all or any part of the property of the
Partnership and to refund, refinance, increase, modify,
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consolidate and extend the maturity of any indebtedness created
by such borrowing, or any such mortgage, deed of trust, pledge,
encumbrance or other security device.
10.1.7 To employ, engage, retain or deal with such
persons to act as leasing and managing agents, brokers,
accountants, lawyers or in such other capacity as the General
Partner shall deem advisable for the proper operation of the
business of the Partnership. The fact that a Partner is employed
by or is directly or indirectly connected with any such person
shall not prohibit the General Partner from employing or
otherwise dealing with such person.
10.1.8 To make any and all decisions regarding
taxes, including the making or revocation of all Partnership tax
elections.
10.1.9 To make, execute, acknowledge and deliver,
in the name and on behalf of the Partnership, all written
Partnership documents and instruments, including without
limitation, any deeds, mortgages, leases, easement and license
agreements, contracts, bonds, notes, instruments of pledge or
assignment, and any other documents, including, without
limitation, any confession of judgment or warrant of attorney in
such documents, and upon dissolution of the Partnership, the
certificate of dissolution, and to ask, demand, recover, assume,
and receipt for all sums of money or other consideration which
shall become due and owing to the Partnership by reason of the
sale, lease, mortgage or assignment of any Partnership assets,
and to take all lawful ways and means for the recovery thereof
and to compromise and agree for the same, and to execute and
deliver good and sufficient discharges and acquittances therefor.
10.2 Each Partner may, notwithstanding the existence of this
Agreement, engage in whatever other activities it chooses,
whether the same be competitive with the Partnership or
otherwise, without having or incurring any obligation to offer
any interest in such other activities to the Partnership or the
other Partner. Neither this Agreement nor any activity
undertaken pursuant hereto shall prevent either Partner from
engaging in such other activities, or require either Partner to
permit the Partnership or the other Partner to participate in any
such other activities and, as a material part of the
consideration for the execution hereof by the Partners, each of
the Partners hereby waives, relinquishes and renounces any such
right or claim of participation.
10.3 Without the prior written consent of the Limited
Partner (which consent may be withheld in the sole and absolute
discretion of the Limited Partner), (i) the General Partner shall
have no right or authority to cause the Partnership to file or
otherwise commence any proceedings in bankruptcy, and (ii) the
General Partner shall not make any calls for additional capital
contributions by the Partners.
ARTICLE 11
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BANK ACCOUNTS
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All funds of the Partnership shall be deposited in the name
of the Partnership in such bank account or accounts as shall be
determined by the General Partner. The funds of the Partnership
shall not be commingled (prior to the distribution thereof to the
Partners) with the funds of the Partners.
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ARTICLE 12
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TRANSFER OF INTERESTS IN THE PARTNERSHIP
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No Partner may agree or purport voluntarily or by operation
of law to sell, assign, transfer, hypothecate, pledge or
otherwise dispose of (collectively "Transfer") all or any part of
its Partnership Interest without the prior consent of the other
Partner. Any transfer of all or any part of a Partnership
Interest shall be void ab initio and a breach of this Agreement.
ARTICLE 13
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DISSOLUTION OF THE PARTNERSHIP
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13.1 Subject to the provisions of Section 13.2 hereof, the
Partnership shall be dissolved and terminated upon the first to
occur of the following events:
(a) The end of the term or the termination of the
Partnership as provided in Article 4 hereof;
(b) The sale of all or substantially all of the
Partnership's property;
(c) An order for relief against the General Partner is
entered under Chapter 7 of the Federal bankruptcy law, or the
General Partner: (i) makes a general assignment for the benefit
of creditors, (ii) files a voluntary petition under bankruptcy
law, (iii) is adjudicated as bankrupt or insolvent; (iv) files a
petition or answer seeking for that Partner any reorganization,
arrangement, composition, readjustment, liquidation, dissolution
or similar relief under any statute, law, or regulation, (v)
files an answer or other pleading admitting or failing to contest
the material allegations of a petition filed against the General
Partner in any proceeding of this nature, or (vi) seeks, consents
to, or acquiesces in the appointment of a trustee, receiver, or
liquidator of the General Partner or of all or any substantial
part of the General Partner's properties.
(d) 120 days after the commencement of any proceeding
against the General Partner seeking reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar
relief under any statute, law, or regulation, the proceeding has
not been dismissed, or if within 90 days after the appointment
without the General Partner's consent or acquiescence of a
trustee, receiver, or liquidator of the General Partner or of all
or any substantial part of its properties, the appointment is not
vacated or stayed, or within 90 days after the expiration of any
such stay, the appointment is not vacated.
13.2 Anything herein to the contrary notwithstanding, but
subject to Section 13.3, in the event of the dissolution of the
Partnership for any reason other than the matters set forth in
subsections (a) and (b) of Section 13.1., the Limited Partner can
elect (in its sole discretion after satisfying Section 13.3) to
cause the Partnership to be reconstituted and to have the
Partnership continue, such election to be made within 90 days
after such event of dissolution. In the event of such election,
the existing General Partner shall withdraw from the Partnership
in consideration for the sum equal to the value of the General
Partner's partnership interest; and the Partnership shall have as
its replacement general partner an entity designated by the
Limited Partner.
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13.3 The Limited Partner shall not elect to cause the
Partnership to be reconstituted and to have the Partnership
continue unless it has first satisfied the condition of
Section 7.3.2 of the partnership agreement of the Limited Partner
by obtaining the consent of limited partners of the Limited
Partner holding a majority of the percentage interests of the
limited partners of the Limited Partner.
13.4 Upon dissolution of the Partnership upon the occurrence
of any of the above-described events or by operation of law, the
Partnership shall be terminated (except as provided in Sections
13.2 and 13.3 above), the General Partner shall take a full
account of the Partnership assets and liabilities, and the
receivables of the Partnership shall be collected and its assets
liquidated as promptly as is consistent with obtaining the fair
value thereof. Upon such dissolution, the Partnership shall
engage in no further business thereafter other than necessary to
cause the Partnership to be operated on an interim basis, to
collect its receivables and liquidate its assets.
13.5 The proceeds of the sale of the property and assets of
the Partnership shall be applied and distributed in the following
order of priority:
(a) To payments of debts and liabilities of the
Partnership and the expenses of liquidation;
(b) To the establishment of any reserves which the
General Partner may deem reasonably necessary for any contingent
or unforeseen liabilities or obligations of the Partnership; and
(c) To the Partners in accordance with the provisions
of Section 13.6 hereof.
13.6 Notwithstanding anything to the contrary in this Agreement,
(i) upon Liquidation of the Partnership the proceeds of such
Liquidation shall be distributed in accordance with the positive
capital account balances of the Partners, and upon Liquidation of
any Partner's interest in the Partnership the proceeds of such
Liquidation shall be distributed in accordance with the positive
capital account balance of such Partner, in each case as
determined after taking into account all capital account
adjustments for the Partnership taxable year during which such
Liquidation occurs (other than those adjustments made pursuant to
this clause (i)) and after adjusting capital accounts for actual
or anticipated Profit or Loss allocable among the Partners in
accordance with, or as if there had been, an actual disposition
of the Partnership properties at their fair market value, by the
end of such taxable year (or, if later, within 90 days after the
date of such Liquidation); and (ii) if the General Partner has a
deficit balance in its capital account following the Liquidation
of its interest in the Partnership, as determined after taking
into account all capital account adjustments for the Partnership
taxable year during which such Liquidation occurs (other than any
adjustment for any capital contribution of the General Partner
made pursuant to this clause (ii)) and after adjusting capital
accounts for actual or anticipated Profit or Loss allocable among
the Partners in accordance with, or as if there had been, an
actual disposition of the Partnership properties at their fair
market value, the General Partner will make a capital
contribution to the Partnership in an amount equal to such
deficit balance. In the case of any Liquidation of the
Partnership which results solely from the termination of the
Partnership for Federal income tax purposes under Section
708(b)(1)(B) of the Code, deemed (but not actual) liquidating
distributions shall be constructively made to the Partners, and
the Partnership shall be reformed for Federal income tax
purposes, and deemed (but not actual) contributions shall be
constructively made thereto, in accordance with Sections 704 and
708 of the Code. The term "Liquidation", when used herein, shall
mean (i) when used with reference to the Partnership, the earlier
of (a) the date upon which the Partnership is terminated under
Section 708(b)(1) of the Code or (b) the date upon which the
Partnership ceases to be a going concern, and (ii) when used
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with reference to any Partner, the earlier of (a) the date upon
which there is a Liquidation of the Partnership or (b) the date
upon which such Partner's entire interest in the Partnership is
terminated other than by transfer, assignment or other
disposition to a person other than the Partnership.
13.7 Upon the Liquidation of the Partnership or any
Partner's interest in the Partnership, the capital accounts of
the Partners first shall be adjusted to reflect the manner in
which the unrealized income, gain, loss and deduction inherent in
all Partnership assets (that have not been reflected in the
capital accounts previously) would be allocated among the
Partners (in accordance with the allocations under Section 7.2)
if there were a taxable disposition of such assets for the fair
market value of such assets on such date and if the proceeds of
such disposition were distributed or deemed distributed in
accordance with Article 8 and not Article 13.
ARTICLE 14
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NO PARTITION; DISTRIBUTION IN KIND
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No Partner shall have the right to partition any of the
Partnership's property, nor shall a Partner make application to
any court or authority having jurisdiction in the matter or
commence or prosecute any action or proceeding for a partition
and the sale thereof and upon any breach of the provisions of
this Article 14 by either Partner, the other Partner (in addition
to all rights and remedies of law or in equity it may have) shall
be entitled to decree or order restraining or enjoining such
application, action or procedure. No Partner shall have the
right to demand to receive property, other than cash, in return
for its capital contribution.
ARTICLE 15
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NOTICES
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All notices, demands and communications of any kind which
either Partner may be required or desires to serve upon the other
Partner under the terms of this Agreement shall be in writing and
shall be served upon such other Partner by personal service upon
such other Partner, or by mailing a copy thereof by certified or
registered mail, postage prepaid, with return receipt requested,
addressed to such other Partner as follows:
If to the General Partner: 000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
If to the Limited Partner: 000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
In case of service by mail, it shall be deemed complete on
the day of actual delivery as shown by the addressee's registered
or certified mail receipt or at the expiration of the third
business day after the date of mailing, whichever is earlier in
time. The address to which notices, demands and other
communications shall be delivered or sent may be changed from
time to time by notice serviced as hereinabove provided.
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ARTICLE 16
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GENERAL PROVISIONS
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16.1 This Agreement is the entire agreement between the
parties hereto with respect to the subject matter hereof and
supersedes all prior oral or written agreements between them with
respect hereto. This Agreement may not be altered or amended
except by the written agreement duly executed by both Partners of
the Partnership.
16.2 The provisions of this Agreement shall, subject to the
terms and conditions of Article 12 hereof, be binding upon and
inure to the benefit of the successors and assigns of each of the
Partners.
16.3 In the event of any litigation between the parties
hereto to enforce any provision of this Agreement or any right of
any party hereto, the non-prevailing party to such litigation
shall pay to the prevailing party all costs and expenses,
including reasonable attorneys' fees, incurred therein by the
prevailing party. "Prevailing party" means the party, which
through final judgment or settlement or compromise, obtains
substantially the relief sought. If any party hereto without
fault is made a party to any litigation instituted by or against
the other party, such other party shall indemnify the party who
without fault is made a party to such litigation against and save
it harmless from all costs and expenses, including reasonable
attorneys' fees incurred by such party in connection therewith.
16.4 Either party hereto shall, in addition to all other
rights, be entitled to the remedies of specific performance and
injunction to enforce its rights hereunder. Headings of the
Articles of this Agreement are inserted solely for convenience of
reference and are not a part of and are not intended to govern,
limit or aid in the construction of any term or provision hereof.
Where the context so requires, the use of the neuter gender shall
include the masculine and the neuter genders and the singular
shall include the plural and vice versa.
16.5 This Agreement and the Partnership shall be governed by
and construed in accordance with the internal laws of the State
of Delaware.
16.6 This Agreement may be executed in several counterparts,
each of which shall be deemed an original, and said counterparts
shall together constitute one and the same agreement, binding all
parties hereto, notwithstanding all of the parties are not
signatory to the original or the same counterpart.
16.7 Each party to this Agreement hereby warrants and
represents that its execution of this Agreement is binding upon
it.
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IN WITNESS WHEREOF, the undersigned have executed this
Agreement as of the day first written above.
General Partner: USC OLD ORCHARD, INC.,
a Delaware corporation
By:
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Its:
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Limited Partner: URBAN SHOPPING CENTERS, L.P.,
an Illinois limited partnership
By: URBAN SHOPPING CENTERS, INC.
a Maryland corporation, General Partner
By:
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Its:
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