AMENDED AND RESTATED
LIMITED PARTNERSHIP AGREEMENT OF
237/1290 UPPER TIER ASSOCIATES, L.P.
(A Delaware Limited Partnership)
THIS AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF
237/1290 UPPER TIER ASSOCIATES, L.P. (the "Partnership"), dated as of October
10, 1996 (this "Agreement") is entered into by and between 237/1290 Upper Tier
GP Corp., a Delaware corporation (the "General Partner"), and JMB/NYC Office
Building Associates, L.P., an Illinois limited partnership (the "JMB Limited
Partner" and/or the "Limited Partner").
WHEREAS, 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. (respectively the "237 LLC" and the "1290 LLC" and
collectively the "LLCs"), each a Delaware limited liability company, filed under
title 11 of the United States Code, 11 U.S.C. Sections 101 et seq. (the "Plan"),
(i) O&Y NY Building Corp. (the "Prior General Partner"), the JMB Limited Partner
and the O&Y Equity Company, L.P. ("Equityco") entered into a Limited Partnership
Agreement dated October 10, 1996 ( the "Original LP Agreement") pursuant to
which they formed the Partnership in accordance with the Revised Uniform Limited
Partnership Act of the State of Delaware, (ii) the LLCs merged into the
Partnership pursuant to an Agreement and Plan of Merger dated the date hereof
(the "Merger Agreement"), with the Partnership as the surviving entity (the
"Merger"), and (iii) pursuant to a Redemption and Substitution Agreement dated
the date hereof, the Prior General Partner and Equityco withdrew from the
Partnership and the General Partner was admitted in its place;
WHEREAS, the parties hereto desire to amend and restate the
Original LP Agreement in its entirety as of the date of this Agreement.
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) "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.
(c) "Adverse Transaction" means (i) any sale, disposition,
transfer or exchange of any Partnership Property, the interests of the Lower
Tier Partnership in the Property Owning Partnership or the properties owned by
the Property Owning Partnerships (ii) any release, discharge or reduction of
non-recourse indebtedness of the Property Owning Partnerships (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, the Lower Tier Partnership
and the Property Owning Partnerships, in each case, in the ordinary course of
business), or (iv) any other transaction or agreement to which any of the
Partnership, the Lower Tier Partnership or the Property Owning Partnerships is a
party, if as a result of any such transaction or agreement described in (i),
(ii), (iii), or (iv) above, the JMB Limited Partner 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, the
Lower Tier Partnership's and the Property Owning Partnerships' business, (B)
non-recourse refinancing of the properties owned by the Property Owning
Partnerships on commercially reasonable terms in an aggregate amount 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 owned by the Property
Owning Partnerships (utilizing an amortization schedule no shorter than twenty
(20) years), (C) payment of amortization on non-recourse financing encumbering
the properties owned by the Property Owning Partnerships, provided that the
outstanding balance of such financing 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 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) above),
and (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 properties owned by the Property Owning Partnerships pursuant to
an involuntary foreclosure or similar action arising from a default by the
Property Owning Partnerships with respect to their obligations under their
indebtedness, and (F) a transfer of the properties owned by the Property Owning
Partnerships with respect to their obligations
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under their 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 of the Property Owning Partnerships
attributable to any commonality of ownership between the beneficial ownership of
the New Notes and the general partner of the Property Owning Partnerships. 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 of the Property Owning Partnerships similar to that anticipated
with respect to the New Notes.
(d) "Approval Right Termination Date" means the earliest of
(i) January 2, 2001, and (ii) the date on which the Partnership no longer holds
the Lower Tier Partnership Interest as a result of the authorized exercise of
the Purchase Right or the Put Right (as such terms are defined in the Lower Tier
Partnership Agreement) pursuant to Sections 12.2A or 12.2C of the Lower Tier
Partnership Agreement or pursuant to such other transaction which does not
constitute an Adverse Transaction (iii) the date on which the Lower Tier
Partnership no longer holds the Property Owning Partnership Interests pursuant
to a transaction which does not constitute an Adverse Transaction, (iv) the date
on which the JMB Limited Partner no longer holds a Partnership Interest in the
Partnership, and (v) the Default Date.
(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) "Default Date" shall have the meaning set forth in the
Lower Tier Partnership Agreement.
(h) "Distribution" means any distribution pursuant to
Articles IV or XI hereof.
(i) "Entity" means any general partnership, limited
partnership, corporation, joint venture, trust, business trust, real estate
investment trust, limited liability company, cooperative or association.
(j) "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.
(k) "General Partner" means 237/1290 Upper Tier 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.
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(l) "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
(including a Limited Partner) 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.
(m) "JMB Indemnitors" shall mean JMB/Manhattan Associates,
Ltd., Carlyle Real Estate Limited Partnership - XIII, and Carlyle Real Estate
Limited Partnership - XIV.
(n) "JMB Limited Partner" shall have the meaning set forth in
the Preamble to this Agreement.
(o) "JMB Purchase Right" shall have the meaning set forth in
Section 9.7 of this Agreement.
(p) "JMB Put Right" shall have the meaning set forth in
Section 7.7 of this Agreement.
(q) "Limited Partners" shall have the meaning set forth in the
Preamble to this Agreement and any additional Limited Partners admitted to the
Partnership in accordance with the terms hereof.
(r) "LLC(s)" shall have the meanings set forth in the Recitals
to this Agreement.
(s) "Lower Tier General Partner" means Metropolis Realty
Trust, Inc., a Maryland corporation.
(t) "Lower Tier Partnership" means 237/1290 Lower Tier
Associates, L.P.
(u) "Lower Tier Partnership Agreement" means the Agreement of
Limited Partnership of the Lower Tier Partnership, dated as of October 10,
1996.
(v) "Lower Tier Partnership Interest" means the Partnership's
ownership interest, as a limited partner, in the Lower Tier Partnership pursuant
to the Lower Tier Partnership Agreement.
(w) "Merger" means the merger of the LLCs with and into the
Partnership pursuant to the Merger Agreement.
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(x) "Merger Agreement" means the Agreement and Plan of Merger,
dated as of October 10, 1996 between the Partnership and the LLCs.
(y) "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.
(z) "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.
(aa) "Partners" means the General Partner and the Limited
Partners, where no distinction is required by the context in which the terms is
used herein. "Partner" means any one of the Partners.
(ab) "Partnership" means 237/1290 Upper Tier Associates, L.P.
(ac) "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 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.
(ad) "Partnership Property" means the Lower Tier Partnership
Interest and any other property the Partnership may acquire after the date
hereof.
(ae) "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.
(af) "Plan" shall have the meaning set forth in the Recitals
to this Agreement.
(ag) "Property Owning Partnership Interests" shall mean the
Lower Tier Partnership's ownership interests, as a limited partner, in the
Property Owning Partnerships pursuant to the Property Owning Partnership
Agreements.
(ah) "Property Owning Partnership Agreements" means the
Agreements of Limited Partnership of the Property Owning Partnerships, each
dated as of October 10, 1996.
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(ai) "Property Owning Partnerships" means 237 Park Partners,
L.P. and 1290 Partners, L.P., each, a Delaware limited partnership.
(aj) "Purchase Right Notice" shall have the meaning set forth
in Section 9.7 of this Agreement.
(ak) "Put Price" shall have the meaning set forth in Section
7.7 of this Agreement.
(al) "Put Right Notice" shall have the meaning set forth in
Section 7 of this Agreement.
ARTICLE II
ORGANIZATIONAL MATTERS
2.1 Formation. The General Partner and the Limited Partners
hereby agree to continue the Partnership as a limited partnership pursuant and
subject 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 this 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 this Partnership, or otherwise to comply with
requirements for a limited partnership to conduct business, in each such state.
The General Partner shall 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 "237/1290 Upper Tier
Associates, 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 Partners, 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),
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Delaware 19801. The principal office of the Partnership shall be c/o Xxxxxx
Capital Group, L.P., 000 Xxxxx Xxxxxx - 12th Floor, New York, New York 10022,
Attn: Xxxx Xxxxx or such other place as the General Partner may from time to
time designate by notice to the Limited Partners. 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; Powers. The purpose and nature of the business to
be conducted by the Partnership is to hold the Partnership Property and serve as
a limited partner of the Lower Tier Partnership. 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.
2.7 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.
2.8 Initial Limited Partner. Immediately following the
execution of this Agreement, 237/1290 Upper Tier GP Corp., the initial limited
partner, shall withdraw as a limited partner and its Capital Contribution of
$100.00 shall be returned by the Partnership.
ARTICLE III
CAPITAL CONTRIBUTIONS
3.1 Capital Contributions of the General Partner. The General
Partner has made a Capital Contribution of $1 in cash to the Partnership.
3.2 Capital Contributions. As provided in the Merger
Agreement, upon the consummation of the Merger, the Partnership succeeded to all
of the LLCs' assets and liabilities (the "LLC Net Assets"). The Partnership
hereby agrees that (i) the LLC Net Assets shall be deemed to be the Capital
Contributions of the JMB Limited Partner, and (ii) the LLC Net Assets shall have
a gross fair market value of $100,000.
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 Partners for a return of their 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.
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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.
ARTICLE IV
DISTRIBUTIONS OF NET CASH FLOW
Subject to Article XI, the Partnership shall distribute to the
Partners any Net Cash Flow at such times as the General Partner shall reasonably
determine to be appropriate. Distributions of Net Cash Flow shall be made to the
Partners in accordance with their respective Partnership Interests.
Notwithstanding the foregoing, the Partners acknowledge that the interest of the
JMB Limited Partner is subject to a Second Amended, Restated and Consolidated
Security Agreement dated as of the date hereof being executed and delivered
pursuant to the Plan and the JMB Limited Partner agrees that the General Partner
shall be authorized to pay any distributions otherwise payable to the JMB
Limited Partner hereunder to or at the direction of the holder of the Second
Amended, Restated and Consolidated Promissory Note secured thereby.
ARTICLE V
ALLOCATIONS OF PROFITS AND LOSSES
5.1 Except as provided in Section 5.2, 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.
5.2 All items of income, gain, loss or deduction attributable
to the assumption or reduction of debt occurring on or about the date hereof and
provided for in the Plan shall be allocated to the Prior General Partner and
Equityco. At the election of the JMB Limited Partner, the Partnership shall use
the "remedial method" described in Treasury Regulation Section 1.704-3(b) and
allocations of nonrecourse debt shall be made in accordance therewith. The
intended effect of this Agreement shall be that the JMB Limited Partner shall
receive an allocation of Partnership nonrecourse debt that on the date hereof is
not less than $380,000,000.
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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
Section 6.1D hereof, no Limited Partner shall 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 Partners 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 6.1D hereof, full power and authority to
do all things deemed necessary or desirable by it to conduct the business of the
Partnership, to exercise all powers and to effectuate the purposes set forth in
Section 2.6 hereof, including, without limitation, the power and authority to:
1. to acquire, sell, transfer, exchange, manage or otherwise
dispose of all or a portion of the Partnership Property upon such terms
and for such consideration as the General Partner may, in its sole and
absolute discretion determine;
2. to take or enter into, perform and carry out contracts and
agreements of every kind necessary or incidental to the purposes of the
Partnership;
3. to take or omit such other or further action in connection
with the Partnership's business as may, in the opinion of the General
Partner, be necessary or desirable to further the purposes of the
Partnership, including, without limitation, actions pursuant to the
Lower Tier Partnership Agreement;
4. to invest such funds as are temporarily not required for
Partnership purposes; and
5. to carry on any other activities the General Partner may
reasonably deem necessary, in connection with or incident to any of the
foregoing.
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
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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 6.1D 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. 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 JMB Limited Partner (which may be
given or withheld in its sole and absolute discretion), have the power to take,
on behalf of the Partnership as a limited partner of the Lower Tier Partnership,
the following actions:
1. Consent to any Adverse Transaction (as such term is defined
in the Lower Tier Partnership Agreement) pursuant to Section 8.1E of
the Lower Tier Partnership Agreement;
2. Exercise the Partnership's Put Right (as such term is
defined in the Lower Tier Partnership Agreement) to require the Lower
Tier General Partner to purchase the Lower Tier Partnership Interest
pursuant to Section 12.2C of the Lower Tier Partnership Agreement;
3. Effect the sale, disposition, exchange or transfer of the
Lower Tier Partnership Interest if such transaction would constitute an
Adverse Transaction;
4. Consent to the amendment of the Lower Tier Partnership
Agreement pursuant to Sections 15.1B and 15.1C of such Partnership
Agreement or to the amendment of the Property Owning Partnership
Agreements in a manner which would be prohibited under Sections 15.1B
and 15.1C of the Lower Tier Partnership Agreement were it an amendment
to such Partnership Agreement;
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5. Consent to the dissolution of the Lower Tier Partnership
pursuant to Section 14.1C of the Lower Tier Partnership Agreement or to
the dissolution of the Property Owning Partnerships pursuant to Section
8.1.E.3 of the Lower Tier Partnership Agreement; and
6. Cause or permit (to the extent within the General Partner's
reasonable control) any Adverse Transaction, provided however that the
General Partner shall be under no obligation to commence litigation or
to incur any expense (unless the JMB Limited Partner 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.
ARTICLE VII
RIGHTS AND OBLIGATIONS OF LIMITED PARTNERS
7.1 Limitation of Liability. The Limited Partners shall have
no liability under this Agreement except as expressly provided in this
Agreement, or under the Act.
7.2 Management of Business. No Limited Partner shall 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
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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 Partners under this Agreement.
7.3 Outside Activities of Limited Partners. Any Limited
Partner and any officer, director, partner, employee, agent, trustee, affiliate
or shareholder of any 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 any Limited Partner. None
of the Limited Partners 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 Covenant of Limited Partners. Each Limited Partner hereby
warrants and covenants to the Partnership that neither it nor any of its
partners or their respective officers, directors, partners, stockholders, agents
and affiliates shall intentionally interfere with (x) the exercise by the Lower
Tier General Partner of the Purchase Right (as such term is defined in the Lower
Tier Partnership Agreement) pursuant to Section 12.2A of the Lower Tier
Partnership Agreement, or (y) any disposition, mortgage, pledge, encumbrance,
hypothecation or exchange of the Lower Tier Partnership Interest by the
Partnership, the Property Owning Partnership Interests by the Lower Tier
partnership or the Property (as defined in the Property Owning Partnership
Agreements) by either Property Owning Partnership or the merger or other
combination of the Lower Tier Partnership or the Property Owning Partnership
with or into another entity in accordance with the terms of this Agreement, the
Lower Tier Partnership Agreement or the Property Owning Partnership Agreement
provided same is not an Adverse Transaction.
7.5 Covenant of the JMB Limited Partner. The JMB Limited
Partner hereby warrants and covenants to the Partnership that it shall arrange
for the delivery to the Lower Tier General Partner in accordance with the
requirements of Section 12.2 of the Lower Tier Partnership Agreement of the
security having a value of $10,000,000 as of January 2, 2001 and the Indemnity
Agreement from the JMB Indemnitors, each as more particularly described in
Section 12.2 of the Lower Tier Partnership Agreement and relating to the
covenants of the JMB Limited Partner set forth in Section 7.4 above.
7.6 Exercise of Lower Tier Partnership Put Right. The General
Partner shall, upon the written request of the JMB Limited Partner, cause the
Partnership to exercise its Put Right (as such term is defined in the Lower Tier
Partnership Agreement) to require the Lower Tier General Partner to purchase the
Lower Tier Partnership Interest pursuant to Section 12.2C of the Lower Tier
Partnership Agreement.
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7.7 Put Right.
A. The JMB Limited Partner shall have the continuing
right ("JMB Put Right") exercisable at any time from the date hereof to require
the General Partner or its designee to purchase the JMB Limited Partner's
Partnership Interest, free and clear of all liens, restrictions, and
encumbrances, for a cash amount (the "Put Price") calculated in the same manner
as the price of the Put Right. The Put Right shall be exercised by the Limited
Partner upon 15 days' prior written notice (the "Put Right Notice") to the
General Partner and shall be consummated, without any further action on the part
of the JMB Limited Partner, within 15 days following the delivery of the Put
Right Notice. Notwithstanding the foregoing, the JMB Limited Partner shall
execute such documents as the General Partner shall reasonably request in
connection with such transaction.
B. The General Partner shall, in its sole discretion,
designate the Person(s) who shall receive the Partnership Interests to be
purchased by the General Partner pursuant to this Section.
C. In connection with the exercise of the JMB Put
Right, the JMB Limited Partner shall pay all transfer taxes, gains taxes and
other similar costs related to the exercise of such rights, including any
additional transfer taxes and transfer gains taxes which would be retroactively
assessed with respect to the transfer of the Properties to the Property Owning
Partnerships pursuant to the Plan by reason of the exercise of the JMB Put
Right.
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 Partners.
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.
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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 Partners Right to Transfer. Subject to the
provisions of Sections 7.6, 7.7 and 9.7 hereof and this Section 9.2, 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 Partners' 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 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
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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.
9.7 Intentionally Omitted.
ARTICLE X
ACCOUNTING PROCEDURE
10.1 Books and Accounts. The General Partner shall keep or
cause to be kept full, accurate, complete and proper books and accounts of all
operations of the Partnership. Such books shall be kept in accordance with sound
accounting practices consistently applied.
10.2 Choice of Accountants; Tax Information. Notwithstanding
anything to the contrary in this Agreement or any status of the General Partner
as general partner or tax matters partner under Section 6231(a)(7) of the Code,
the JMB Limited Partner shall have full and exclusive authority over all
Partnership tax matters, including, without limitation, with respect to those
matters under Section 11.2 of the Lower Tier Partnership Agreement and Section
10.8 of the Property Owning Partnership Agreement, in each case, reserved to the
respective Limited Partner of such partnerships (as such term is respectively
defined) under such Section 11.2 of the Lower Tier Partnership Agreement or
Section 10.8 of the Property Owning Partnership Agreement, as appropriate. The
Partnership's tax returns shall be prepared by a big six accounting firm
selected by the JMB Limited Partner. The General Partner shall sign and file tax
returns prepared by the Partnership's accountant in consultation with the JMB
Limited Partner. The General Partner shall annually deliver or cause to be
delivered to the Limited Partners all information forms reasonably necessary for
federal tax purposes.
10.3 Delivery of Information. The General Partner shall
promptly deliver to the JMB Limited Partner copies of all reports and
information received from the Lower Tier Partnership.
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 2.7
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;
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 JMB Limited Partner (which may be given or withheld in its sole
and absolute discretion), and (ii) after the Approval Right Termination Date, an
election to dissolve the Partnership made by the General Partner, without the
consent of the Limited Partners;
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 Partners elect 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.
The General Partner shall not receive any compensation for any
services performed pursuant to this Article XI.
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11764.0001 345760.13
11.3 Rights of Limited Partners. Except as otherwise provided
in this Agreement, each 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
Limited Partner shall have priority over any other Limited 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.
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
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11764.0001 345760.13
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.
If to the General Partner:
237/1290 Upper Tier GP Corp.
c/o Xxxxxx Capital Group, L.P.
000 Xxxxx Xxxxxx - 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
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11764.0001 345760.13
Attn: Xxxx Xxxxx
with a copy to:
Battle Xxxxxx LLP
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Xxxxxxxx
If to the JMB Limited Partner:
000 Xxxxx Xxxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx
Xxxx Xxxxxxx
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 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.
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11764.0001 345760.13
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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11764.0001 345760.13
IN WITNESS WHEREOF, this Agreement is executed by the General
Partner and the Initial Limited Partner as of the date first above written.
237/1290 UPPER TIER GP CORP.
By:
Name:
Title:
JMB/NYC OFFICE BUILDING ASSOCIATES, L.P.,
an Illinois limited partnership
By: Carlyle Managers, Inc., its General Partner
By:
Name:
Title:
[The remaining portion of this page
is intentionally left blank]
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11764.0001 345760.13
Exhibit A
Entity Partnership Interest
237/1290 UPPER TIER GP CORP. 1%
JMB/NYC OFFICE BUILDING
ASSOCIATES, L.P. 99%
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11764.0001 345760.13
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS................................................................ 1
ARTICLE II
ORGANIZATIONAL MATTERS..................................................... 6
2.1 Formation .................................................. 6
2.2 Certificates................................................. 6
2.3 Foreign Qualifications....................................... 6
2.4 Name .................................................. 6
2.5 Registered Office and Agent; Principal Office................ 6
2.6 Purpose; Powers.............................................. 7
2.7 Term .................................................. 7
2.8 Initial Limited Partner...................................... 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............................................. 8
ARTICLE IV
DISTRIBUTIONS OF NET CASH FLOW............................................. 8
ARTICLE V
ALLOCATIONS OF PROFITS AND LOSSES.......................................... 8
ARTICLE VI
RIGHTS AND OBLIGATIONS OF THE GENERAL PARTNER.............................. 9
6.1 Management .................................................. 9
6.2 Outside Activities of the General Partner.................... 11
6.3 Employment of Experts or Advisors............................ 11
ARTICLE VII
RIGHTS AND OBLIGATIONS OF LIMITED PARTNERS................................. 11
11764.0001 345760.13
Page
7.1 Limitation of Liability...................................... 11
7.2 Management of Business....................................... 11
7.3 Outside Activities of Limited Partners....................... 12
7.4 Covenant of Limited Partners................................. 12
7.5 Covenant of the JMB Limited Partner.......................... 12
7.6 Exercise of Lower Tier Partnership Put Right................. 12
7.7 Put Right .................................................. 13
ARTICLE VIII
AMENDMENTS OF LIMITED PARTNERSHIP AGREEMENT................................ 13
ARTICLE IX
LIMITATION ON SUBSTITUTION AND
ASSIGNMENT OF A PARTNERS INTEREST.......................................... 13
9.1 Transfer .................................................. 13
9.2 Limited Partners Right to Transfer........................... 14
9.3 Transferred Partnership Interests Subject to This Agreement.. 14
9.4 Insolvency, Dissolution or Bankruptcy of a Limited Partner... 14
9.5 Transfers by the General Partner............................. 14
9.6 Admission of Successor General Partner....................... 14
9.7 Intentionally Omitted........................................ 15
ARTICLE X
ACCOUNTING PROCEDURE....................................................... 15
10.1 Books and Accounts.......................................... 15
10.2 Choice of Accountants; Tax Information...................... 15
10.3 Delivery of Information..................................... 15
ARTICLE XI
DISSOLUTION................................................................ 15
11.1 Dissolution................................................. 15
11.2 Liquidation................................................. 16
11.3 Rights of Limited Partners.................................. 17
11.4 No Obligation to Contribute Deficit......................... 17
ARTICLE XII
INDEMNIFICATION............................................................ 17
11764.0001 345760.13
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Page
ARTICLE XIII
MISCELLANEOUS PROVISIONS................................................... 18
13.1 Notices .................................................. 18
13.2 Counterparts................................................ 19
13.3 Nature of Partnership Interest.............................. 19
13.4 Insolvency Proceedings...................................... 19
13.5 Titles and Captions......................................... 19
13.6 Pronouns and Plurals........................................ 20
13.7 Further Action.............................................. 20
13.8 Binding Effect.............................................. 20
13.9 Creditors .................................................. 20
13.10 Waiver .................................................. 20
13.11 Applicable Law............................................. 20
13.12 Invalidity of Provisions................................... 20
13.13 Entire Agreement........................................... 20
11764.0001 345760.13
-iii-
AMENDED AND RESTATED
LIMITED PARTNERSHIP AGREEMENT
OF
237/1290 UPPER TIER ASSOCIATES, L.P.
by and between
237/1290 UPPER TIER GP CORP.,
as General Partner
AND
JMB/NYC OFFICE BUILDING ASSOCIATES, L.P.,
as Limited Partner
Dated: October 10, 1996
11764.0001 345760.13
