LIMITED PARTNERSHIP AGREEMENT OF
1290 PARTNERS, L.P.
(A Delaware Limited Partnership)
THIS AGREEMENT OF LIMITED PARTNERSHIP OF 1290 PARTNERS, L.P.
(the "Partnership"), dated as of October 10, 1996 (this "Agreement") is entered
into by and between 1290 GP Corp., a Delaware corporation (the "General
Partner"), and 237/1290 Lower Tier Associates, L.P., a Delaware limited
partnership (the "Limited Partner").
WHEREAS, the parties hereto desire to form a Delaware limited
partnership under the Revised Uniform Limited Partnership Act of the State of
Delaware and in accordance with the terms and conditions of the Joint Plan of
Reorganization of 000 Xxxx Xxxxxx Associates, L.L.C. and 1290 Associates, L.L.C.
(the "Debtors"), filed under title 11 of the United States Code, 11 U.S.C.
Sections 101 et seq. (the "Plan"); and
WHEREAS, the Limited Partner, the Partnership and Metropolis
Realty Trust, Inc., a Maryland corporation (the "REIT") are parties to the Debt
Contribution Agreement, dated as of October 10, 1996 ("the Debt Contribution
Agreement"), pursuant to which, among other things, the Limited Partner will
contribute to the Partnership the Contributed Debt (as hereinafter defined); and
WHEREAS, the Limited Partner, the Partnership and 237/1290
Upper Tier Associates, L.P., a Delaware limited partnership (the "Upper Tier
Partnership"), are parties to the Property Contribution Agreement, dated as of
October 10, 1996 (the "Property Contribution Agreement") pursuant to which,
among other things, the Limited Partner will contribute to the Partnership the
Property (as hereinafter defined).
NOW, THEREFORE, in consideration of the mutual covenants and
on the terms and conditions contained herein, and for other good, valid and
binding consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound, hereby agree as
follows:
ARTICLE I
DEFINITIONS
Certain terms used in this Agreement shall have the meanings
designated below.
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(a) "Act" means the Delaware Revised Uniform Limited
Partnership Act, as in effect on the date hereof as it may be amended from time
to time hereafter, or any successor law.
(b) "Adverse Transaction" means (i) any sale, disposition,
transfer or exchange of the Property, (ii) any release, discharge or reduction
of non-recourse indebtedness of the Partnership (other than through payment of
scheduled amortization, actions taken by a secured lender such as application of
insurance proceeds or condemnation awards or the exercise of remedies, or in the
case where the released indebtedness is concurrently being replaced with other
non-recourse indebtedness complying with clause (B) below), (iii) any
distribution of Partnership assets (other than distributions of cash and other
distributions by the Partnership in the ordinary course of business), or (iv)
any other transaction or agreement to which the Partnership is a party, if as a
result of any such transaction or agreement described in (i), (ii), (iii), or
(iv) above, JMB LP as a partner in the Upper Tier Partnership would be required
to recognize a material amount of taxable income or gain prior to the Approval
Right Termination Date. Adverse Transactions shall specifically exclude (A)
Partnership income derived in the ordinary course of the Partnership's business,
(B) non-recourse refinancing of the Property on commercially reasonable terms in
an aggregate amount together with any non-recourse financing encumbering 0000
Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XX equal to not less than the lesser of
$325,000,000 or the amortized balance of the then existing non-recourse
financing encumbering the Properties (utilizing an amortization schedule no
shorter than twenty (20) years), (C) payment of amortization on non-recourse
financing encumbering the Property, provided that the outstanding balance of
non-recourse financing encumbering the Properties is not reduced below
$325,000,000, in the aggregate, as such amount would be reduced between the date
hereof and the Approval Right Termination Date assuming such amount is amortized
based on a twenty (20) year amortization schedule and except as otherwise
provided in the parenthetical of clause (ii) above (i.e., actions taken by a
secured lender such as applications of insurance proceeds or condemnation awards
or the exercise of remedies, or in the case where the released indebtedness is
concurrently being replaced with other non-recourse indebtedness complying with
clause (B) above), (D) the consummation of the transactions described in the
Plan (i.e., the property transfers and the issuance of the securities provided
therein), (E) a transfer of the Property pursuant to an involuntary foreclosure
or similar action arising from a default by the Partnership with respect to its
obligations under its indebtedness, and (F) a transfer of the Property pursuant
to a consensual foreclosure or similar action (including, without limitation, a
deed in lieu of foreclosure) arising from a default by the Partnership with
respect to its obligations under its indebtedness provided that, in the case of
a consensual foreclosure or deed in lieu of foreclosure by reason of a default
under the New Notes (as defined in the Plan), the default is a bona fide default
and the foreclosure or deed in lieu of foreclosure is not a collusive
transaction between the holders of the New Notes and the General Partner
attributable to any commonality of ownership between the beneficial ownership of
the New Notes and the General Partner. As used in clause (F) above, the term New
Notes shall include refinancings in which there is a commonality of ownership
between the holder of such financing and the General Partner similar to that
anticipated with respect to the New Notes.
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(c) "Approval Right Termination Date" means the earliest of
(i) January 2, 2001, (ii) the date on which the Upper Tier Partnership no longer
holds any partnership interest in the Limited Partner as a result of the
authorized exercise of the Purchase Right or the Put Right (as defined in the
Agreement of Limited Partnership of the Limited Partner) or pursuant to such
other transaction which does not constitute an "Adverse Transaction" under the
Agreement of Limited Partnership of the Limited Partner, (iii) the date on which
the Limited Partner no longer holds a Partnership Interest in the Partnership
pursuant to a transaction which does not constitute an "Adverse Transaction"
under the Agreement of Limited Partnership of the Limited Partner, (iv) the date
on which JMB LP no longer holds any partnership interest in the Upper Tier
Partnership, and (v) the Default Date.
(d) "Capital Contribution" means, with respect to any Partner,
any cash, cash equivalents or the gross asset value of the Property, as
determined by the General Partner in its sole and absolute discretion (except as
otherwise provided in this Agreement), which such Partner contributes or is
deemed to contribute to the Partnership pursuant to Article III hereof.
(e) "Certificate" means the Certificate of Limited Partnership
of the Partnership filed in the Office of the Secretary of State of Delaware, as
such certificate may be amended and/or restated from time to time.
(f) "Code" means the Internal Revenue Code of 1986, as amended
from time to time (or any corresponding provisions of succeeding law).
(g) "Contributed Debt" means $160,059,084 of the undivided
$280,000,000 portion of the principal amount of the Existing Notes (as such term
is defined in the Plan) contributed by the REIT to the Limited Partner pursuant
to the Debt Contribution Agreement.
(h) "Debt Contribution Agreement" shall have the meaning set
forth in the Recitals to this Agreement.
(i) "Debtors" shall have the meaning set forth in the
Recitals to this Agreement.
(j) "Default Date" shall have the meaning set forth in the
Agreement of Limited Partnership of the Limited Partner dated as of the date
hereof.
(k) "Distribution" means any distribution pursuant to
Articles IV or XI hereof.
(l) "Entity" means any general partnership, limited
partnership, corporation, joint venture, trust, business trust, real estate
investment trust, limited liability company, cooperative or association.
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(m) "Fiscal Year" means (i) the period commencing on the
Effective Date or any subsequent January 1 and ending on the earlier to occur of
(A) the next December 31 or (B) the date on which all assets of the Partnership
are distributed pursuant to Article IX hereof and the Certificate has been
cancelled pursuant to the Act.
(n) "General Partner" means 1290 GP Corp., a Delaware
corporation, in its capacity as General Partner hereunder and all other Persons
hereafter being or acting as a general partner of the Partnership, individually
and collectively.
(o) "Indemnitee" means (i) any Person made a party to a
proceeding by reason of (A) such Person's status as (1) the General Partner, (2)
a stockholder, director, trustee or officer of the Partnership or the General
Partner, or (3) a director, trustee or officer of any other Entity, each Person
serving in such capacity at the request of the Partnership or the General
Partner, or (B) his or its liabilities, pursuant to a loan guarantee or
otherwise, for any indebtedness of the Partnership (including, without
limitation, any indebtedness which the Partnership has assumed or taken assets
subject to); and (ii) such other Persons (including affiliates of the General
Partner to the Partnership) as the General Partner may designate from time to
time (whether before or after the event giving rise to potential liability), in
its sole and absolute discretion.
(p) "JMB LP" means JMB/NYC Office Building Associates, L.P.,
an Illinois limited partnership.
(q) "Limited Partner" shall have the meaning set forth in the
Preamble to this Agreement.
(r) "Net Cash Flow" means the excess of all cash receipts of
any kind received by the Partnership over the sum of the amounts of (i)
Operating Expenses, and (ii) any reserves established by the General Partner.
(s) "Operating Expenses" means all cash expenses, costs, debts
and disbursements of every kind and nature which the Partnership shall pay or
become obligated to pay in connection with the business of the Partnership or
the performance of the General Partner's duties and obligations under this
Agreement, including, without limitation, debt service, audit and legal expenses
and management fees.
(t) "Partners" means the General Partner and the Limited
Partner, where no distinction is required by the context in which the terms is
used herein. "Partner" means any one of the Partners.
(u) "Partnership" means 1290 Partners, L.P., a Delaware
limited partnership.
(v) "Partnership Interest(s)" means that ownership interest of
a Partner, expressed as a percentage, in the Partnership's profits and losses,
other items of income, gain, losses, deductions, expenses and credits, and
distributions of net cash receipts at any particular time, including the right
of such Partner to any and all benefits to which a Partner
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may be entitled as provided in this Agreement and under the Act, together with
the obligation of such Partner to comply with all the terms and provisions of
this Agreement and the Act. The Partnership Interest of each Partner is set
forth on Exhibit A.
(w) "Person" means any individual, corporation, company,
partnership, joint venture, trust, association, unincorporated organization,
other entity or group, or any domestic or foreign national, state or municipal
or other local government or multi-national body any subdivision, agency,
commission or authority thereof.
(x) "Plan" shall have the meaning set forth in the Recitals to
this Agreement.
(y) "Property" means 1290 Avenue of the Americas, New York,
New York.
(z) "Properties" means the Property and 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx.
(aa) "Property Contribution Agreement" shall have the meaning
set forth in the Recitals to this Agreement.
(ab) "REIT" shall have the meaning set forth in the Recitals
to this Agreement.
(aa) "Upper Tier Partnership" means 237/1290 Upper Tier
Associates, L.P., a Delaware limited partnership.
ARTICLE II
ORGANIZATIONAL MATTERS
2.1 Formation. The General Partner and the Limited Partner
hereby agree to form the Partnership under and pursuant to the Act. Except as
expressly provided in this Agreement, the rights and obligations of the Partners
and the administration and termination of the Partnership shall be governed by
the Act.
2.2 Certificates The General Partner shall file, record and
publish such certificates and other documents as may be necessary and
appropriate to comply with the requirements for the organization and operation
of a limited partnership under the Act.
2.3 Foreign Qualifications. In the event that the business of
the Partnership is carried on or conducted in any state other than the State of
Delaware, then the parties agree that the Partnership shall be qualified to
conduct business in accordance with the laws of each such other state in which
business is conducted by the Partnership. The parties agree to execute such
other and further documents as may be necessary or appropriate to permit the
General Partner to qualify the Partnership, or otherwise to comply with
requirements for a limited partnership to conduct business, in each such state.
The General Partner shall
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execute and file in the proper offices such certificates as may be required by
the Assumed Name Act or similar law in effect in the counties and other
governmental jurisdictions in which the Partnership may elect to conduct
business.
2.4 Name. The name of the Partnership is "1290 Partners, L.P."
The business of the Partnership shall be conducted under the name listed above
or under such other names as the General Partner deems appropriate. The General
Partner, in its sole discretion may, upon five days' prior written notice to the
Limited Partner, change the name of the Partnership.
2.5 Registered Office and Agent; Principal Office. The address
of the registered office of the Partnership in the State of Delaware and the
name and address at the registered agent for service of process on the
Partnership in the State of Delaware is The Corporation Trust Company, 0000
Xxxxxx Xxxxxx, Xxxxxxxxxx (Xxx Xxxxxx Xxxxxx), Xxxxxxxx 00000. The principal
office of the Partnership shall be c/o Xxxxxx Capital Group, L.P., 000 Xxxxx
Xxxxxx -- 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn: Xxxx Xxxxx, or such other
place as the General Partner may from time to time designate by notice to the
Limited Partner. The Partnership may maintain offices at such other place or
places within or outside the State of Delaware as the General Partner deems
advisable.
2.6 Purpose and Business. The purpose and nature of the
business to be conducted by the Partnership is to engage in the following
activities: to acquire, hold, own, develop, construct, improve, maintain,
operate, sell, lease, transfer, encumber, convey, exchange, and otherwise
dispose of or deal with the Property; to acquire, hold, own, develop, construct,
improve, maintain, operate, sell, lease, transfer, encumber, convey, exchange,
and otherwise dispose of or deal with real and personal property of all kinds;
to undertake such other activities as may be necessary, advisable, desirable or
convenient to the business of the Partnership; to engage in such other ancillary
activities as shall be necessary or desirable to effectuate the foregoing
purposes; and to engage in such activities as are consistent with the powers
described in the proviso in Section 2.7 hereof. The Partnership shall have all
powers necessary or desirable to accomplish the purposes enumerated. In
connection with the foregoing, but subject to all of the terms, covenants,
conditions and limitations contained in this Agreement and any other agreement
entered into by the Partnership, the Partnership shall have full power and
authority to enter into, perform, and carry out contracts of any kind, to borrow
money and to issue evidences of indebtedness, whether or not secured by
mortgage, trust deed, pledge or other lien, and, directly or indirectly, to
acquire and construct additional properties necessary or useful in connection
with its business.
2.7 Powers. The Partnership is empowered to do any and all
acts and things necessary, appropriate, proper, advisable, incidental to or
convenient for the furtherance and accomplishment of the purposes and business
described herein and for the protection and benefit of the Partnership.
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2.8 Term. The term of the Partnership shall commence on the
date hereof and shall continue until December 31, 2099, unless the Partnership
is dissolved sooner pursuant to any provision of this Agreement.
ARTICLE III
CAPITAL CONTRIBUTIONS
3.1 Capital Contributions of the General Partner. The
General Partner has made a Capital Contribution of One Dollar ($1) in cash to
the Partnership.
3.2 Capital Contributions. Pursuant to the Plan, the Debt
Contribution Agreement and the Property Contribution Agreement, on the Effective
Date (as such term is defined in the Plan), the Limited Partner shall make a
Capital Contribution of the Contributed Debt and the Property (subject to the
liabilities described in the Property Contribution Agreement) to the
Partnership. The Partnership and the Limited Partner hereby agree that the value
of the Contributed Debt is $160,059,084 and of the Property is $57,164.
3.3 Other Matters Relating to Capital Contributions.
A. Except as otherwise provided by the terms of this
Agreement, no Partner shall be entitled to withdraw, or to a return of,
any part of its Capital Contribution, or to receive property or assets
other than cash in return thereof, and the General Partner shall not be
liable to the Limited Partner for a return of its Capital
Contributions.
B. No Partner shall be entitled to priority over any other
Partner, either with respect to a return of his Capital Contribution,
or to allocations of taxable income, gains, losses or credits, or to
distributions, except as provided in this Agreement.
C. No interest shall be paid on Capital Contributions.
D. No Partner shall be obligated to make any further Capital
Contribution to the Partnership.
3.4 Capital Accounts. A separate capital account shall be
established for each Partner on the books of the Partnership on the dates on
which such Partner makes its Capital Contributions, as provided herein. Each
such capital account will thereafter be maintained on the books of the
Partnership. Each Partner's capital account will be increased by that Partner's
Capital Contributions, advances and allocation of income and gain and decreased
by that Partner's distributions and allocation of losses.
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ARTICLE IV
DISTRIBUTIONS OF NET CASH FLOW
4.1 Regular Distributions. Subject to Article XI, the General
Partner shall cause the Partnership to distribute from time to time as
determined by the General Partner, but in any event not less frequently than
quarterly, Net Cash Flow. Distributions of Net Cash Flow shall be made to the
Partners in accordance with their respective Partnership Interests.
4.2 Qualifications of the REIT as a Real Estate Investment
Trust. The General Partner shall use its best efforts to cause the Partnership
to distribute sufficient amounts under this Article IV to enable the Limited
Partner to make sufficient distributions to its general partner, the REIT, to
pay stockholder dividends that will (i) satisfy the requirements for qualifying
as a real estate investment trust under the Code and Regulations ("REIT
Requirements"), and (ii) avoid any federal income or excise tax liability of the
General Partner or the REIT, provided, however, the General Partner shall not be
bound to comply with this covenant to the extent such distributions would (i)
violate applicable Delaware law or (ii) contravene the terms of any notes,
mortgages or other types of debt obligations which the Partnership may be
subject to in conjunction with borrowed funds.
ARTICLE V
ALLOCATIONS OF PROFITS AND LOSSES
All items of income, gain, loss or deduction for any Fiscal
Year shall be allocated to the Partners in accordance with their respective
Partnership Interests.
ARTICLE VI
RIGHTS AND OBLIGATIONS OF THE GENERAL PARTNER
6.1 Management.
A. Except as otherwise expressly provided in this Agreement,
all management powers over the business and affairs of the Partnership are and
shall be exclusively vested in the General Partner, and, except as provided in
Sections 6.1E and 10.3 and 10.4 hereof, the Limited Partner shall not have any
right to participate in or exercise control or management power over the
business and affairs of the Partnership. The General Partner may not be removed
by the Limited Partner with or without cause. In addition to the powers now or
hereafter granted a general partner of a limited partnership under applicable
law or which are granted to the General Partner under any other provision of
this Agreement, the General Partner shall have, subject to Section 6.1E hereof,
full power and authority to do all things deemed necessary or desirable by it to
conduct the business of the
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Partnership, to exercise all powers and to effectuate the purposes set forth in
Section 2.6 hereof, including, without limitation:
(1) (a) the making of any expenditures, the
lending or borrowing of money, including,
without limitation, making prepayments on
loans and borrowing money to permit the
Partnership to make distributions to its
Partners in such amounts as will permit the
Limited Partner's general partner, the REIT
(so long as the REIT qualifies as a real
estate investment trust) to avoid the
payment of any federal income tax
(including, for this purpose, any excise tax
pursuant to Section 4981 of the Code) and to
make distributions to its stockholders in
amounts sufficient to permit the REIT to
maintain real estate investment trust
status, (b) the assumption or guarantee of,
or other contracting for, indebtedness and
other liabilities, (c) the issuance of
evidence of indebtedness (including the
securing of the same by deed, mortgage, deed
of trust or other lien or encumbrance on the
Partnership's assets) and (d) the incurring
of any obligations it deems necessary for
the conduct of the activities of the
Partnership;
(2) subject to the provisions of Article X
hereof, the making of tax, regulatory and
other filings, or rendering of periodic or
other reports to governmental or other
agencies having jurisdiction over the
business or assets of the Partnership;
(3) the acquisition, disposition, mortgage,
pledge, encumbrance, hypothecation or
exchange of any assets of the Partnership
(including the exercise or grant of any
conversion, option, privilege, or
subscription right or other right available
in connection with any assets at any time
held by the Partnership) or the merger or
other combination of the Partnership with or
into another entity;
(4) the use of the assets of the Partnership
(including, without limitation, cash on
hand) for any purpose consistent with the
terms of this Agreement and on any terms it
sees fit, including, without limitation, the
financing of the conduct of the operations
of the General Partner, the Partnership or
any of the Partnership's subsidiaries, the
lending of funds to other Persons
(including, without limitation, the
subsidiaries of the Partnership and/or the
General Partner) and the repayment of
obligations of the Partnership and its
subsidiaries and any other Person in which
it has an equity investment, and the making
of capital contributions to the
Partnership's subsidiaries;
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(5) the management, operation, expansion,
development, construction, leasing,
landscaping, repair, alteration, demolition
or improvement of any real property or
improvements owned by the Partnership or any
subsidiary of the Partnership;
(6) the negotiation, execution, and performance
of any contracts, conveyances or other
instruments that the General Partner
considers useful or necessary to the conduct
of the Partnership's operations or the
implementation of the General Partner's
powers under this Agreement, including (i)
contracting with property managers, leasing
agents, contractors, developers,
consultants, accountants, legal counsel,
other professional advisors and other
agents, and (ii) the payment of such related
expenses and compensation out of the
Partnership's assets;
(7) the distribution of Partnership cash or
other Partnership assets in accordance with
this Agreement;
(8) holding, managing, investing and reinvesting
cash and other assets of the Partnership;
(9) the collection and receipt of revenues and
income of the Partnership;
(10) the establishment of one or more divisions
of the Partnership, the selection and
dismissal of employees of the Partnership
(including, without limitation, employees
having titles such as "president," "vice
president," "secretary" and "treasurer" of
the Partnership), and agents, outside
attorneys, accountants, consultants and
contractors of the Partnership, and the
determination of their compensation and
other terms of employment or engagement;
(11) the maintenance of such insurance for the
benefit of the Partnership and the Partners
as it deems necessary or appropriate;
(12) the formation of, or acquisition of an
interest in, and the contribution of
property to, any further limited or general
partnerships, joint ventures or other
relationships that it deems desirable
(including, without limitation, the
acquisition of interests in, and the
contributions of property to, its
subsidiaries and any other Person in which
it has an equity investment from time to
time);
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(13) the control of any matters affecting the
rights and obligations of the Partnership,
including the settlement, compromise,
submission to arbitration or any other form
of dispute resolution, or abandonment of,
any claim, cause of action, liability, debt
or damages, due or owing to or from the
Partnership, the commencement or defense of
suits, legal proceedings, administrative
proceedings, arbitration or other forms of
dispute resolution, and the representation
of the Partnership in all suits or legal
proceedings, administrative proceedings,
arbitrations or other forms of dispute
resolution, the incurring of legal expenses,
and the indemnification of any Person
against liabilities and contingencies to the
extent permitted by law;
(14) the undertaking of any action in connection
with the Partnership's direct or indirect
investment in its subsidiaries or any other
Person (including, without limitation, the
contribution or loan of funds by the
Partnership to such Persons);
(15) the determination of the fair market value
of any Partnership property distributed in
kind using such reasonable method of
valuation as the General Partner may adopt;
(16) the exercise, directly or indirectly,
through any attorney-in-fact acting under a
general or limited power of attorney, of any
right, including the right to vote,
appurtenant to any asset or investment held
by the Partnership;
(17) the exercise of any of the powers of the
General Partner enumerated in this Agreement
on behalf of or in connection with any
subsidiary of the Partnership or any other
Person in which the Partnership has a direct
or indirect interest, or jointly with any
such subsidiary or other Person;
(18) the exercise of any of the powers of the
General Partner enumerated in this Agreement
on behalf of any Person in which the
Partnership does not have an interest
pursuant to contractual or other
arrangements with such Person;
(19) the making, execution and delivery of any
and all deeds, leases, notes, mortgages,
deeds of trust, security agreements,
conveyances, contracts, guarantees,
warranties, indemnities, waivers, releases
or legal instruments or agreements in
writing necessary or appropriate, in the
judgment of the General Partner, for the
accomplishment of any of the foregoing;
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(20) the issuance of additional Partnership
Interests, as appropriate, in connection
with Capital Contributions by Partners or
additional limited partners; and
(21) The opening of bank accounts on behalf of,
and in the name of, the Partnership and its
subsidiaries.
B. In connection with such management and subject to any
limitations set forth elsewhere in this Agreement, the General Partner:
1. Shall maintain or cause to be maintained, at the expense of
the Partnership, complete and accurate records of all correspondence,
documents or instruments of any nature relating to the Partnership
business. Such records, together with such supporting evidence thereof
as is in the control and possession of the Partnership or of the
General Partner, shall be kept in the principal office of the General
Partner or of the Partnership for such periods as the General Partner
deems appropriate. The Partners and/or their authorized
representatives, shall have the right to inspect and/or copy any or all
of the above-described records during normal business hours.
2. Shall execute any and all documents or instruments of any
kind which the General Partner may reasonably deem appropriate in
carrying out the purposes of the Partnership.
3. Shall maintain, or cause to have maintained, at the expense
of the Partnership, adequate records and accounts of all transactions,
operations and expenditures and shall furnish or cause to be furnished
the Partners with annual statements of account as of the end of each
calendar year.
C. The Limited Partner agrees that the General Partner is
authorized to execute, deliver and perform the above-mentioned agreements and
transactions on behalf of the Partnership without any further act, approval or
vote of the Limited Partner (except as provided in Section 6.1E hereof).
Notwithstanding any other provision of this Agreement, to the fullest extent
permitted under the Act or other applicable law, rule or regulation, the
execution, delivery or performance by the General Partner or the Partnership of
any agreements authorized or permitted under this Agreement shall not constitute
a breach by the General Partner of any duty that the General Partner may owe the
Partnership or the Limited Partner or any other Persons under this Agreement or
of any duty stated or implied by law or equity.
D. Except as provided in Section 6.1E, in exercising its
authority under this Agreement, the General Partner may, but shall be under no
obligation to, take into account the tax consequences to any Partner of any
action taken by it; provided, that if the General Partner decides to refinance
(directly or indirectly) any outstanding indebtedness of the Partnership, the
General Partner shall, until the Approval Right Termination Date, use
commercially reasonable efforts to structure such refinancing in a manner that
allows all of the Partnership's non-recourse indebtedness to continue to be
included in the tax basis of the
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Limited Partners' Partnership Interests. The General Partner and the Partnership
shall not have liability to the Limited Partner or any partner of the Limited
Partner under any circumstances as a result of an income tax liability incurred
by the Limited Partner or its partners as a result of an action (or inaction) by
the General Partner taken pursuant to its authority under and in accordance with
this Agreement.
E. Notwithstanding anything to the contrary set forth in this
Agreement, until the Approval Right Termination Date, the General Partner shall
not, without the prior written consent of the Limited Partner (which may be
given or withheld in its sole and absolute discretion), cause or permit (to the
extent within the General Partner's reasonable control) any Adverse Transaction
to occur, provided however that the General Partner shall be under no obligation
to commence litigation or to incur any expense (unless JMB LP shall fund such
expense) in order to avoid or prevent an Adverse Transaction from occurring.
6.2 Outside Activities of the General Partner. The General
Partner shall devote such time and effort to the business of the Partnership as
the General Partner shall reasonably deem necessary to promote adequately the
interests of the Partnership and the interests of the Partners; however, it is
specifically understood and agreed that the General Partner shall not be
required to devote full time to the business of the Partnership and that the
Partners and their respective stockholders, partners, directors, officers and
affiliates may at any time and from time to time engage in and possess interests
in other business ventures of any and every type and description including
business interests and activities that are in direct competition with the
Partnership or that are enhanced by the activities of the Partnership, and
neither the Partnership nor any Partner shall by virtue of this Agreement or
otherwise have any right, title or interest in or to such independent ventures.
6.3 Employment of Experts or Advisors. The General Partner may
employ or retain such counsel, accountants, appraisers or other experts or
advisors as the General Partner may reasonably deem appropriate for the purpose
of discharging its duties hereunder, and shall be entitled to pay the fees of
any such persons from the funds of the Partnership. The General Partner may act,
and shall be protected in acting in good faith, on the opinion or advice of, or
information obtained from, any such counsel, accountant, appraiser or other
expert or advisor, whether retained or employed by the Partnership, the General
Partner, or otherwise, in relation to any matter connected with the
administration or operation of the business and affairs of the Partnership.
6.4 Contracts with Affiliates.
A. The Partnership may lend or contribute funds or other
assets to its subsidiaries or other entities in which it has an equity
investment and such entities may borrow funds from the Partnership, on terms and
conditions established in the sole and absolute discretion of the General
Partner. The foregoing authority shall not create any right or benefit in favor
of any subsidiary or any other entity.
B. Except as provided in Section 6.1E, the Partnership may
transfer assets to joint ventures, other partnerships, corporations or other
business entities in which it is or
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thereby becomes a participant upon such terms and subject to such conditions
consistent with this Agreement and applicable law as the General Partner, in its
sole and absolute discretion, believes are advisable.
C. The General Partner, in its sole and absolute discretion
and without the approval of the Limited Partners, may propose and adopt, on
behalf of the Partnership, employee benefit plans, stock option plans, and
similar plans funded by the Partnership for the benefit of employees of the
General Partner, the Partnership, subsidiaries of the Partnership or any
affiliate of any of them in respect of services performed, directly or
indirectly, for the benefit of the Partnership, the General Partner, or any
subsidiaries of the Partnership.
D. The General Partner is expressly authorized to enter into,
in the name and on behalf of the Partnership, a "right of first opportunity" or
"right of first offer" arrangement, non-competition agreements and other
conflict avoidance agreements with various affiliates of the Partnership and the
General Partner, on such terms as the General Partner, in its sole and absolute
discretion, believes are advisable.
6.5 Other Matters Concerning the General Partner.
Notwithstanding any other provisions of this Agreement (other than Section 6.1E)
or the Act, any action of the General Partner on behalf of the Partnership or
any decision of the General Partner to refrain from acting on behalf of the
Partnership, undertaken in the good faith belief that such action or omission is
necessary or advisable in order (i) to protect the ability of the REIT to
continue to qualify as a REIT; or (ii) to avoid the General Partner or the REIT
incurring any taxes under Section 857 or Section 4981 of the Code, is expressly
authorized under this Agreement and is deemed approved by all of the Limited
Partners.
6.6 Reliance by Third Parties. Notwithstanding anything to the
contrary in this Agreement, any party dealing with the Partnership shall be
entitled to assume that the General Partner has full power and authority,
without consent or approval of any other Partner or party, to encumber, sell or
otherwise use in any manner any and all assets of the Partnership and to enter
into any contracts on behalf of the Partnership, and take any and all actions on
behalf of the Partnership, and such party shall be entitled to deal with the
General Partner as if the General Partner were the Partnership's sole party in
interest, both legally and beneficially. Each Limited Partner hereby waives any
and all defenses or other remedies which may be available against such party to
contest, negate or disaffirm any action of the General Partner in connection
with any such dealing. In no event shall any party dealing with the General
Partner or its representatives be obligated to ascertain that the terms of this
Agreement have been complied with or to inquire into the necessity or expedience
of any act or action of the General Partner or its representatives. Each and
every certificate, document or other instrument executed on behalf of the
Partnership by the General Partner or its representatives shall be conclusive
evidence in favor of any and every party relying thereon or claiming thereunder
that (i) at the time of the execution and delivery of such certificate, document
or instrument, this Agreement was in full force and effect; (ii) the party
executing and delivering such certificate, document or instrument was duly
authorized and empowered to do so for and on behalf of the Partnership; and
(iii) such certificate, document or
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instrument was duly executed and delivered in accordance with the terms and
provisions of this Agreement and is binding upon the Partnership.
ARTICLE VII
RIGHTS AND OBLIGATIONS OF THE LIMITED PARTNER
7.1 Limitation of Liability. The Limited Partner shall have no
liability under this Agreement except as expressly provided in this Agreement,
or under the Act.
7.2 Management of Business. The Limited Partner shall not take
part in the operation, management or control (within the meaning of the Act) of
the Partnership's business, transact any business in the Partnership's name or
have the power to sign documents for or otherwise bind the Partnership. The
transaction of any such business by the General Partner, any of its affiliates
or any officer, director, employee, partner, agent or trustee of the General
Partner, the Partnership or any of their affiliates, in their capacity as such,
shall not affect, impair or eliminate the limitations on the liability of the
Limited Partner under this Agreement.
7.3 Outside Activities of Limited Partner. The Limited Partner
and any officer, director, partner, employee, agent, trustee, affiliate or
shareholder of the Limited Partner shall be entitled to and may have business
interests and engage in business activities in addition to those relating to the
Partnership, including business interests and activities that are in direct
competition with the Partnership or that are enhanced by the activities of the
Partnership. Neither the Partnership nor any Partners shall have any rights by
virtue of this Agreement in any business ventures of the Limited Partner. No
Limited Partner nor any other Person shall have any rights by virtue of this
Agreement or the Partnership relationship established hereby in any business
ventures of any other Person and such Person shall have no obligation pursuant
to this Agreement to offer any interest in any such business ventures to the
Partnership, any Limited Partner or any such other Person, even if such
opportunity is of a character which, if presented to the Partnership, any
Limited Partner or such other Person, could be taken by such Person.
7.4 Rights of Limited Partners Relating to the Partnership
A. In addition to the other rights provided by this Agreement
or by the Act, and except as limited by Section 7.4B hereof, each Limited
Partner shall receive from the Partnership the following:
(1) copies of all annual and quarterly reports
of the Partnership;
(2) a copy of the Partnership's federal, state
and local income tax returns for each
Partnership Year; and
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(3) a copy of this Agreement and the Certificate
and all amendments and/or restatements
thereto, together with executed copies of
all powers of attorney pursuant to which
this Agreement, the Certificate and all
amendments and/or restatements thereto have
been executed.
B. In addition, each Limited Partner shall have the right, for
a purpose reasonably related to such Limited Partner's interest as a limited
partner in the Partnership, upon written demand with a statement of the purpose
of such demand:
(1) to obtain a current list of the name and
last known business, residence or mailing
address of each Partner; and
(2) to obtain true and full information
regarding the amount of cash and a
description and statement of any other
property or services contributed by each
Partner and which each Partner has agreed to
contribute in the future, and the date on
which each became a Partner.
C. Notwithstanding any other provision of this Section 7.4,
the General Partner may keep confidential from the Limited Partners, for such
period of time as the General Partner determines in its sole and absolute
discretion to be reasonable, any information (other than information partners of
the Limited Partner require in order to comply with law, including making proper
tax filings) that (i) the General Partner reasonably believes to be in the
nature of trade secrets or other information, the disclosure of which the
General Partner in good faith believes is not in the best interests of the
Partnership or could damage the Partnership or its business; or (ii) the
Partnership is required by law or by agreements with an unaffiliated third party
to keep confidential.
ARTICLE VIII
AMENDMENTS OF LIMITED PARTNERSHIP AGREEMENT
This Agreement may be amended only by instrument in writing
signed by the General Partner and the Limited Partner.
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ARTICLE IX
LIMITATION ON SUBSTITUTION AND
ASSIGNMENT OF A PARTNERS INTEREST
9.1 Transfer.
A. The term "Transfer," when used in this Article IX with
respect to a Partnership Interest, shall be deemed to refer to a transaction by
which the General Partner purports to assign all or any part of its Partnership
Interest to another Person or by which a Limited Partner purports to assign all
or any part of its Partnership Interest to another Person.
B. No Partnership Interest shall be Transferred, in whole or
in part, except in accordance with the terms and conditions set forth in this
Article IX. Any Transfer or purported Transfer of a Partnership Interest not
made in accordance with this Article IX shall be null and void.
9.2 Limited Partner Right to Transfer. No Limited Partner
shall sell, assign, transfer or convey all or any portion of its Partnership
Interest to any person or entity without the prior written consent of the
General Partner. No Limited Partner shall pledge, encumber or place a lien on
its Partnership Interest without the prior written consent of the General
Partner. No successor to any of the Limited Partner's Partnership Interests
shall become a substituted limited partner, as that term is used in the Act,
without the prior written consent of the General Partner. Any consent from the
General Partner required under this Section 9.2 may be granted or withheld by
the General Partner in its sole discretion.
9.3 Transferred Partnership Interests Subject to This
Agreement. Sales, assignments, transfers, conveyances and pledges of Partnership
Interests pursuant to this Article IX shall be subject to, and the transferee or
pledgee shall acquire the transferred Partnership Interests subject to, all of
the terms and provisions of this Agreement.
9.4 Insolvency, Dissolution or Bankruptcy of a Limited
Partner. The insolvency, dissolution or bankruptcy of a Limited Partner shall
not terminate the Partnership. In such event, the trustee, representative, or
other successor in interest of such Limited Partner shall have only the rights
of an assignee of a Limited Partner which does not become a substituted limited
partner under the Act.
9.5 Transfers by the General Partner.
A. The General Partner may Transfer all or any part of its
Partnership Interest or withdraw as General Partner, in its sole discretion and
without the consent of any Limited Partners; provided that the General Partner
may withdraw as general partner only in connection with a Transfer of its
Partnership Interest and immediately following the
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admission of a successor General Partner, as general partner, in accordance with
this Article IX.
B. In the event the General Partner withdraws as general
partner in accordance with clause A. above, its general partner interest shall
immediately be converted into a limited partner interest and the General Partner
shall be entitled to receive distributions from the Partnership and the share of
net income, net losses, any other items, gain, loss, deduction and credit that
were otherwise attributable to its general partner interest.
9.6 Admission of Successor General Partner. A successor to all
of the General Partner Interest pursuant to this Section IX who is proposed to
be admitted as a successor General Partner shall be admitted to the Partnership
as the General Partner, effective immediately prior to such Transfer. Any such
transferee shall carry on the business of the Partnership without dissolution.
In each case, the admission shall be subject to the successor General Partner
executing and delivering to the Partnership an acceptance of all of the terms
and conditions of this Agreement and such other documents or instruments as may
be required to effect the admission.
ARTICLE X
BOOKS, RECORDS, ACCOUNTING, REPORTS AND TAX MATTERS
10.1 Records and Accounting. The General Partner shall keep or
cause to be kept at the principal office of the Partnership those records and
documents required to be maintained by the Act and other books and records
deemed by the General Partner to be appropriate with respect to the
Partnership's business, including, without limitation, all books and records
necessary to comply with applicable REIT Requirements and to provide to the
Limited Partners any information, lists and copies of documents required to be
provided pursuant to Sections 7.4 and 10.3 hereof. Any records maintained by or
on behalf of the Partnership in the regular course of its business may be kept
on, or be in the form of, punch cards, magnetic tape, photographs, micrographics
or any other information storage device, provided that the records so maintained
are convertible into clearly legible written form within a reasonable period of
time. The books of the Partnership shall be maintained, for financial and tax
reporting purposes, on an accrual basis in accordance with generally accepted
accounting principles, or such other basis as the General Partner determines to
be necessary or appropriate.
10.2 Fiscal Year. The fiscal year of the Partnership shall
be the calendar year.
10.3 Reports.
A. As soon as practicable, but in no event later than ninety
(90) days after the close of each Partnership Year, the General Partner shall
cause to be mailed to each Limited Partner as of the close of the Partnership
Year, an annual report containing financial
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statements of the Partnership, or of the General Partner or the REIT if such
statements are prepared solely on a consolidated basis with the General Partner
or the REIT, for such Partnership Year, presented in accordance with GAAP, such
statements to be audited by Deloitte & Touche LLP or another nationally
recognized firm of independent public accountants selected by the General
Partner and, until the Approval Right Termination Date, reasonably acceptable to
JMB LP, provided that the failure of JMB LP to approve an independent public
accountant shall not be deemed to be unreasonable if such accountant fails to
confirm in writing to the Partnership and JMB LP that it will follow the
allocations of Partnership non-recourse liabilities as provided herein.
B. As soon as practicable, but in no event later than
forty-five (45) days after the close of each calendar quarter (except the last
calendar quarter of each calendar year), the General Partner shall cause to be
mailed to each Limited Partner a report containing unaudited financial
statements as of the last day of the calendar quarter of the Partnership, or of
the General Partner or the REIT, if such statements are prepared solely on a
consolidated basis with the General Partner or the REIT, and such other
information as may be required by applicable law or regulation, or as the
General Partner determines to be appropriate.
10.4 Preparation of Tax Returns. The General Partner shall
arrange for the preparation and timely filing by the Partnership's accountants
of all returns of Partnership income, gains, deductions, losses and other items
required of the Partnership for federal and state income tax purposes and shall
use all reasonable efforts to furnish, within sixty (60) days of the close of
each taxable year, the tax information reasonably required by Limited Partners
for federal and state income tax reporting purposes. The Limited Partners, the
Upper Tier Limited Partnership (as a partner in the Limited Partners) and JMB LP
(as a partner in the Upper Tier Limited Partnership) shall be entitled to confer
with such accountants concerning all tax matters.
10.5 Tax Matters Partner.
A. The General Partner shall be the "tax matters partner" of
the Partnership (within the meaning of Section 6231(a)(7) of the Code) and shall
exercise such position on a reasonable basis and in accordance with Sections
6.1D and 6.1E. Pursuant to Section 6230(e) of the Code, upon receipt of notice
from the Internal Revenue Service of the beginning of an administrative
proceeding with respect to the Partnership, the tax matters partner shall
furnish the Internal Revenue Service with the name, address, taxpayer
identification number, and profit interest of each of the Limited Partners;
provided, that such information is provided to the Partnership by the Limited
Partners.
B. The taking of any action and the incurring of any expense
by the tax matters partner in connection with any such proceeding, except to the
extent required by law, is a matter in the sole and absolute discretion of the
tax matters partner and the provisions relating to indemnification of the
General Partner set forth in Section 12.1 of this Agreement shall be fully
applicable to the tax matters partner in its capacity as such.
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C. The tax matters partner shall receive no compensation for
its services. All third party costs and expenses incurred by the tax matters
partner in performing its duties as such (including legal and accounting fees
and expenses) shall be borne by the Partnership. Nothing herein shall be
construed to restrict the Partnership from engaging an accounting firm to assist
the tax matters partner in discharging its duties hereunder, so long as the
compensation paid by the Partnership for such services is reasonable.
10.6 Organizational Expenses. The Partnership shall elect to
deduct expenses, if any, incurred by it in organizing the Partnership ratably
over a sixty (60) month period as provided in Section 709 of the Code.
10.7 Withholding. Each Limited Partner hereby authorizes the
Partnership to withhold from such Limited Partner any amount of federal, state,
local, or foreign taxes that the General Partner determines that the Partnership
is required to withhold or pay with respect to any amount distributable or
allocable to such Limited Partner pursuant to this Agreement, including, without
limitation, any taxes required to be withheld or paid by the Partnership
pursuant to Sections 1441, 1442, 1445, or 1446 of the Code. Any amounts withheld
shall be treated as having been distributed to such Limited Partner.
10.8 Tax Elections. Except as otherwise provided herein, the
General Partner shall, in its sole and absolute discretion, determine whether to
make any available election pursuant to the Code. The General Partner shall
elect the "remedial method" of making Section 704(c) allocations pursuant to
Regulations Section 1.704-3 with respect to property contributed pursuant to the
Property Contribution Agreement and shall not make the election under Section
754 of the Code prior to January 1, 1997, unless otherwise requested by the
Limited Partner and in the event of any such request, the General Partner shall
comply with the request of the Limited Partner as to the making of Section
704(c) allocations and the making (or revocation) of a Section 754 election. The
General Partner shall have the right to seek to revoke any tax election it makes
(other than (i) the election to use the remedial method of making the Section
704(c) allocations described in this Section 10.8 or another method of making
Section 704(c) allocations requested by the Limited Partner and (ii) the
election under Section 754 of the Code), upon the General Partner's
determination, in its sole and absolute discretion, that such revocation is in
the best interests of the Partners.
ARTICLE XI
DISSOLUTION
11.1 Dissolution. The Partnership shall not be dissolved by
the admission of substituted Limited Partners or additional Limited Partners or
by the admission of a successor General Partner in accordance with the terms of
this Agreement. In the event of the withdrawal of the General Partner, any
successor General Partner shall continue the business of the Partnership. The
Partnership shall dissolve, and its affairs shall be wound up, only upon the
first to occur of any of the following:
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A. the expiration of its term as provided in Section 2.8
hereof;
B. an event of withdrawal of the General Partner, as defined
in the Act, unless, within ninety (90) days after such event of withdrawal all
of the remaining Partners agree in writing to continue the business of the
Partnership and to the appointment, effective as of the date of withdrawal, of a
successor General Partner, provided that a withdrawal of the General Partner in
connection with a Transfer of its Partnership Interest shall be governed by the
provisions of Section 9.5A hereof;
C. (i) prior to the Approval Right Termination Date, an
election to dissolve the Partnership made by the General Partner, with the
consent of the Limited Partner (which may be given or withheld in its sole and
absolute discretion), (ii) after the Approval Right Termination Date, an
election to dissolve the Partnership made by the General Partner, without the
consent of the Limited Partner;
D. entry of a decree of judicial dissolution of the
Partnership pursuant to the provisions of the Act;
E. the sale of all or substantially all of the assets and
properties of the Partnership.
11.2 Liquidation. In the event of dissolution of the
Partnership pursuant to Section 11.1 where the business of the Partnership is
not reconstituted, liquidation shall occur. The General Partner shall supervise
the liquidation of the Partnership unless a wrongful act of the General Partner
dissolved the Partnership or the Limited Partner elects another Partner to do
so. In the event of any liquidation of the Partnership under this Agreement or
the Act, except as otherwise provided herein, the proceeds of liquidating the
Partnership shall be applied and distributed in the following order of priority
(each item to be satisfied in full in the order listed below before any of such
proceeds are allocated to the subsequent item):
(a) First, to creditors, including Partners who are creditors
(to the extent not otherwise prohibited by law), in satisfaction of
liabilities of the Partnership (whether by payment or the making of
reasonable provision for payment therefor), other than liabilities for
which reasonable provision for payment has been made and liabilities
for interim distributions to Partners and distributions to Partners on
withdrawal; then
(b) Second, to the setting up of any reserves which the
supervising Partner (or, if applicable, the liquidating trustee)
determines to be reasonably necessary for any contingent liabilities of
the Partnership or of any Partner arising out of, or in connection
with, a Partnership liability; then
(c) Finally, the balance, if any, to the Partners in
accordance with Article IV hereof.
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The General Partner shall not receive any compensation for any
services performed pursuant to this Article XI.
11.3 Rights of the Limited Partner. Except as otherwise
provided in this Agreement, the Limited Partner shall look solely to the assets
of the Partnership for the return of its Capital Contributions and shall have no
right or power to demand or receive property other than cash from the
Partnership. No Partner shall have priority over any other Partner as to the
return of its Capital Contributions, distributions, or allocations.
11.4 No Obligation to Contribute Deficit. If any Partner has a
deficit balance in its capital account (after giving effect to all
contributions, distributions and allocations for all taxable years, including
the year during which such liquidation occurs), such Partner shall have no
obligation to make any contribution to the capital of the Partnership with
respect to such deficit, and such deficit shall not be considered a debt owed to
the Partnership or to any other Person for any purpose whatsoever.
ARTICLE XII
INDEMNIFICATION
12.1 To the fullest extent permitted by Delaware law, the
Partnership shall indemnify each Indemnitee from and against any and all losses,
claims, damages, liabilities, joint or several, expenses (including, without
limitation, reasonable attorneys' fees and other legal fees and expenses),
judgments, fines, settlements, and other amounts arising from any and all
claims, demands, actions, suits or proceedings, civil, criminal, administrative
or investigative, that relate to the operations of the Partnership or the
General Partner as set forth in this Agreement, in which such Indemnitee may be
involved, or is threatened to be involved, as a party or otherwise, except to
the extent it is finally determined by a court of competent jurisdiction, from
which no further appeal may be taken, that such Indemnitee's action constituted
intentional acts or omissions constituting willful misconduct or fraud. Without
limitation, the foregoing indemnity shall extend to any liability of any
Indemnitee, pursuant to a loan guaranty or otherwise for any indebtedness of the
Partnership (including, without limitation, any indebtedness which the
Partnership has assumed or taken subject to), and the General Partner is hereby
authorized and empowered, on behalf of the Partnership, to enter into one or
more indemnity agreements consistent with the provisions of this Article XII in
favor of any Indemnitee having or potentially having liability for any such
indebtedness. Any indemnification pursuant to this Article XII shall be made
only out of the assets of the Partnership, and neither the General Partner nor
any Limited Partner shall have any obligation to contribute to the capital of
the Partnership, or otherwise provide funds, to enable the Partnership to fund
its obligations under this Article XII.
12.2 Reasonable expenses incurred by an Indemnitee who is a
party to a proceeding shall be paid or reimbursed by the Partnership in advance
of the final disposition of the proceeding.
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12.3 The indemnification provided by this Article XII shall be
in addition to any other rights to which an Indemnitee or any other Person may
be entitled under any agreement, pursuant to any vote of the Partners, as a
matter of law or otherwise, and shall continue as to an Indemnitee who has
ceased to serve in such capacity unless otherwise provided in a written
agreement pursuant to which such Indemnities are indemnified.
12.4 The Partnership may, but shall not be obligated to,
purchase and maintain insurance, on behalf of the Indemnitees and such other
Persons as the General Partner shall determine, against any liability that may
be asserted against or expenses that may be incurred by such Person in
connection with the Partnership's activities, regardless of whether the
Partnership would have the power to indemnify such Person against such liability
under the provisions of this Agreement.
12.5 In no event may an Indemnitee subject any of the Partners
to personal liability by reason of the indemnification provisions set forth in
this Agreement.
12.6 An Indemnitee shall not be denied indemnification in
whole or in part under this Article XII because the Indemnitee had an interest
in the transaction with respect to which the indemnification applies if the
transaction was otherwise permitted by the terms of this Agreement.
12.7 The provisions of this Article XII are for the benefit of
the Indemnitees, their heirs, successors, assigns and administrators and shall
not be deemed to create any rights for the benefit of any other Persons. Any
amendment, modification or repeal of this Article XII or any provision hereof
shall be prospective only and shall not in any way affect the Partnership's
liability to any Indemnitee under this Article XII, as in effect immediately
prior to such amendment, modification, or repeal with respect to claims arising
from or relating to matters occurring, in whole or in part, prior to such
amendment, modification or repeal, regardless of when such claims may arise or
be asserted.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
13.1 Notices. Notices hereunder shall be in writing and shall
be deemed to be delivered upon actual receipt or 72 hours following deposit in a
regularly maintained receptacle for the United States mail, registered or
certified mail, return receipt requested, with postage prepaid, and addressed to
the address of the addressee shown below, or to such other address of which any
party shall notify the other parties hereto, in accordance with the terms
hereof.
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If to the General Partner:
1290 GP Corp.
c/o Xxxxxx Capital Group, L.P.
000 Xxxxx Xxxxxx -- 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx Xxxxx
If to the Limited Partner:
237/1290 Lower Tier Associates, L.P.
c/o Xxxxxx Capital Group, L.P.
000 Xxxxx Xxxxxx -- 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx Xxxxx
with a copy to:
JMB/NYC Office Building Associates, L.P.
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xx. Xxxxxx X. Xxxxxx
13.2 Counterparts. This Agreement may be executed in multiple
counterparts, each to constitute an original, but all in the aggregate to
constitute one agreement as executed. This Agreement shall be binding upon and
inure to the benefit of the parties hereto, their heirs, legal representatives,
successors and permitted assigns.
13.3 Nature of Partnership Interest. The interest of each
Partner in this Partnership is personal property.
13.4 Insolvency Proceedings. No bankruptcy or insolvency
filing or proceeding in respect of the Partnership shall be made or commenced
without the consent of the General Partner, and the Partnership shall not
acquiesce, petition or otherwise invoke or cause any other person and/or entity
to invoke the process of the United States of America, any state or other
political subdivision thereof or any other jurisdiction, any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government for the purpose of commencing or sustaining a case
against the Partnership under a federal or state bankruptcy, insolvency or
similar law or appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of the Partnership or all or any part of
its property or assets or ordering the winding-up or liquidation of the affairs
of the Partnership, if such action has not been consented to by the General
Partner.
13.5 Titles and Captions. All article or section titles or
captions in this Agreement are for convenience only. They shall not be deemed
part of this Agreement and
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in no way define, limit, extend or describe the scope or intent of any
provisions hereof. Except as specifically provided otherwise, references to
"Articles" and "Sections" are to Articles and Sections of this Agreement.
13.6 Pronouns and Plurals. Whenever the context may require,
any pronoun used in this Agreement shall include the corresponding masculine,
feminine or neuter forms, and the singular form of nouns, pronouns and verbs
shall include the plural and vice versa.
13.7 Further Action. The parties shall execute and deliver all
documents, provide all information and take or refrain from taking action as may
be necessary or appropriate to achieve the purposes of this Agreement.
13.8 Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their heirs, executors,
administrators, successors, legal representatives and permitted assigns.
13.9 Creditors. Other than as expressly set forth herein with
respect to the Indemnitees, none of the provisions of this Agreement shall be
for the benefit of, or shall be enforceable by, any creditor of the Partnership.
13.10 Waiver. No failure by any party to insist upon the
strict performance of any covenant, duty, agreement or condition of this
Agreement or to exercise any right or remedy consequent upon a breach thereof
shall constitute waiver of any such breach or any other covenant, duty,
agreement or condition.
13.11 Applicable Law. This Agreement shall be construed and
enforced in accordance with and governed by the laws of the State of Delaware,
without regard to the principles of conflicts of laws thereof.
13.12 Invalidity of Provisions. If any provision of this
Agreement is or becomes invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein shall not be affected thereby.
13.13 Entire Agreement. This Agreement contains the entire
understanding and agreement among the Partners with respect to the subject
matter hereof and supersedes any other prior written or oral understandings or
agreements among them with respect thereto.
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IN WITNESS WHEREOF, this Agreement is executed by the General
Partner and the Limited Partner as of the date first above written.
1290 PARTNERS, L.P., a Delaware
limited partnership
By: 1290 GP CORP., its general partner
By: /s/ Xxx X. Xxxxxxx
Name: Xxx X. Xxxxxxx
Title: President
237/1290 LOWER TIER ASSOCIATES, L.P.
By: Metropolis Realty Trust, Inc.,
its General Partner
By: /s/ Xxx X. Xxxxxxx
Name: Xxx X. Xxxxxxx
Title: President
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C/M: 11764.0004 397409.3
Exhibit A
Entity Partnership Interest
1290 GP Corp. 1%
237/1290 Lower Tier Associates, L.P. 99%
C/M: 11764.0004 397409.3
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS........................................................... 1
ARTICLE II
ORGANIZATIONAL MATTERS................................................ 5
2.1 Formation .................................................. 5
2.2 Certificates................................................. 5
2.3 Foreign Qualifications....................................... 5
2.4 Name .................................................. 6
2.5 Registered Office and Agent; Principal Office................ 6
2.6 Purpose and Business......................................... 6
2.7 Powers .................................................. 6
2.8 Term .................................................. 7
ARTICLE III
CAPITAL CONTRIBUTIONS................................................. 7
3.1 Capital Contributions of the General Partner................. 7
3.2 Capital Contributions........................................ 7
3.3 Other Matters Relating to Capital Contributions.............. 7
3.4 Capital Accounts............................................. 7
ARTICLE IV
DISTRIBUTIONS OF NET CASH FLOW........................................ 8
4.1 Regular Distributions........................................ 8
4.2 Qualifications of the REIT as a Real Estate Investment Trust. 8
ARTICLE V
ALLOCATIONS OF PROFITS AND LOSSES..................................... 8
6.1 Management .................................................. 8
6.2 Outside Activities of the General Partner.................... 13
6.3 Employment of Experts or Advisors............................ 13
6.4 Contracts with Affiliates.................................... 13
6.5 Other Matters Concerning the General Partner................. 14
6.6 Reliance by Third Parties.................................... 14
ARTICLE VII
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C/M: 11764.0004 397409.3
Page
RIGHTS AND OBLIGATIONS OF THE LIMITED PARTNER......................... 15
7.1 Limitation of Liability...................................... 15
7.2 Management of Business....................................... 15
7.3 Outside Activities of Limited Partner........................ 15
7.4 Rights of Limited Partners Relating to the Partnership....... 15
ARTICLE VIII
AMENDMENTS OF LIMITED PARTNERSHIP AGREEMENT........................... 16
ARTICLE IX
LIMITATION ON SUBSTITUTION AND
ASSIGNMENT OF A PARTNERS INTEREST..................................... 17
9.1 Transfer .................................................. 17
9.2 Limited Partner Right to Transfer............................ 17
9.3 Transferred Partnership Interests Subject to This Agreement.. 17
9.4 Insolvency, Dissolution or Bankruptcy of a Limited Partner... 17
9.5 Transfers by the General Partner............................. 17
9.6 Admission of Successor General Partner....................... 18
ARTICLE X
BOOKS, RECORDS, ACCOUNTING, REPORTS AND TAX MATTERS................... 18
10.1 Records and Accounting...................................... 18
10.2 Fiscal Year................................................. 18
10.3 Reports .................................................. 18
10.4 Preparation of Tax Returns.................................. 19
10.5 Tax Matters Partner......................................... 19
10.6 Organizational Expenses..................................... 20
10.7 Withholding................................................. 20
ARTICLE XI
DISSOLUTION........................................................... 20
11.1 Dissolution................................................. 20
11.2 Liquidation................................................. 21
11.3 Rights of the Limited Partner............................... 22
11.4 No Obligation to Contribute Deficit......................... 22
ARTICLE XII
INDEMNIFICATION....................................................... 22
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C/M: 11764.0004 397409.3
Page
ARTICLE XIII
MISCELLANEOUS PROVISIONS.............................................. 23
13.1 Notices .................................................. 23
13.2 Counterparts................................................ 24
13.3 Nature of Partnership Interest.............................. 24
13.4 Insolvency Proceedings...................................... 24
13.5 Titles and Captions......................................... 24
13.6 Pronouns and Plurals........................................ 25
13.7 Further Action.............................................. 25
13.8 Binding Effect.............................................. 25
13.9 Creditors .................................................. 25
13.10 Waiver .................................................. 25
13.11 Applicable Law............................................. 25
13.12 Invalidity of Provisions................................... 25
13.13 Entire Agreement........................................... 25
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C/M: 11764.0004 397409.3
LIMITED PARTNERSHIP AGREEMENT
OF
1290 PARTNERS, L.P.
by and between
1290 GP CORP.,
as General Partner
AND
237/1290 LOWER TIER ASSOCIATES, L.P.,
as Limited Partner
Dated: October 10, 1996
C/M: 11764.0004 397409.3
